Last Month (September)

01 October

Time flies when you're having fun. I know I promised a discussion of Tasini several days ago. In the meantime, I've been busy because two of my clients (academic organizations) asked me how Tasini would impact them. My smug answer was: "It won't. I anticipated it in the revisions to the publication agreements that we did some time ago. The publication agreement already transfers electronic database rights to [client], with appropriate compensation to the authors."

Nyaah, nyaah, nyaah. Because I convinced my clients not to act like greedy media conglomerates, they can keep up their established practices without missing a beat. This is called "win-win negotiating"—a concept that I'm afraid has completely escaped the media conglomerates (and most of the legal profession).

Now that I'm done being smug, what does Tasini mean? We'll start off with a brief summary. Recall the three major issues? Here's how the Second Circuit answered them:

1. The defendants did not preserve the "back of the check contract" issue for appeal. This appears to be based upon a settlement between the parties. In any event, the defendants' position was food for worms.
2. The second major issue—whether publishers are merely "reissuing" or "revising" their collective works by placing articles in electronic databases (17 U.S.C. § 201(c)), and thus "privileged" to do so without explicit approval from or payment to authors—came out very pro-author. The court decided that none of the electronic databases at issue qualify as "reissues" or "revisions," and that using the articles in the databases was therefore a copyright infringement—unless the authors explicitly agree to allow use of the articles in the specific database.
3. The court punted the third major issue—whether electronic database rights are transferrable at all (17 U.S.C. § 201(d)). Based on the record below and its decision on the second issue, it did not need to decide the issue. However, the opinion emphasizes that authors and publishers can "contract around" provisions in the Copyright Act, which implies that the authors' position has little chance of success.

I'll spend some more time and space on that second issue shortly. Next time, though, I'll step through the procedural posture of the case—and explain why authors should not book world cruises under the assumption that they're going to get big checks by the end of the year.

Congratulations to Officer Rowland. Before long, she'll be Inspector "Dirty-Mind" Diana Rowland—the terror of every crooked agent on the lower Mississippi.

"This is a 357-page novel—the most powerful storytelling in the world. But I have a problem. I can't remember whether I've submitted this manuscript five times—or six. I sort of lost count. So that leaves just one question:
   "Do you feel lucky, punk? Well, do you?"

I don't know about you, but I'd think twice before rejecting her work . . .

07 October 1999

OK, men, over the top! Oops, wrong war. General Haig's drinks cabinet did not move six inches closer to Berlin.

I've been engaged in some trench—or at least trenchant—warfare for the last few days. Plus an unusually nasty migraine attack (the "usually nasty" ones only wipe me out for 24 hours or so). I hate discovery disputes.

Procedurally, this is why Tasini won't really be final for several years.

• The defendants will almost certainly continue the appeals process. This means either a rehearing en banc by the entire Second Circuit (the September opinion is, as normal, by a three-judge panel), or perhaps an immediate attempt at appeal to the Supreme Court. The defendants have until December 23d, 1999 to file a request for a writ of certiorari with the Supreme Court. The plaintiffs then have sixty days to file an opposition to the writ. The Supreme Court will then take some time to decide whether to grant the writ (hear the appeal).
• If the Court denies certiorari—and the "normal" odds are about 1% and falling rapidly—the Second Circuit will issue its mandate thirty days after the denial and send it back to the District Court.
• If the Supreme Court determines that it will hear the appeal, both sides (again) get the opportunity to file briefs. There will certainly be briefs from amici curiae (self-styled "friends of the court" who are usually there to cheer on one side or the other). Given the briefing schedule established by the Court's rules, oral argument could not occur before October, 2000. The decision would then come down some time before June of 2001.
• Most critically, the case came up on summary judgment. That means that the District Court judge determined that no rational jury could decide the facts of the case any way other than the way she stated them in her opinion. As I understand the record below, this is somewhat tenuous, although it appears that the parties have not preserved the issue. The Supreme Court may well decide that, because its view of the law is slightly different, the Second Circuit needs to reconsider the case.
• In any event, the summary judgment was on liability only. Further proceedings will be required in the District Court to establish a remedy—damages, injunctions, whatever. And, of course, that part of the case will be subject to an independent appeal, starting the process over again.

I've been involved in one of these ping-pong cases. The dispute arose in 1988; the case was filed in 1989; the District Court judge dismissed the matter in 1992; the Court of Appeals reversed in 1994; and the Supreme Court affirmed the reversal in 1995. That sent the case back down to the District Court. Discovery took another couple of years, then there was a summary judgment decision in 1997, followed by—you guessed it—another appeal. The appeal was decided in early 1998, and the Supreme Court denied certiorari in late 1998. I came in in the middle, and left in the middle. Fortunately.

One should also remember that publishers as a whole are notoriously slow payers. Even if the judge comes up with a "formula" (say, 15% additional for UMI's use, 25% additional for NEXIS's use, etc.) that is acceptable to the parties—fat chance, given the lead defense counsel—it's going to take a while to track down the authors of articles originally published in the 1980s and early 1990s and pay them their money. And does it bear interest? Prejudgment or postjudgment? Both? What about individual authors who object to having their material continue in the databases?

This is not a simple case, folks. The initial proposition is fairly simple: "If the contract doesn't explicitly transfer electronic database rights, the author retains those rights." But it's not so easy to fix once someone has screwed it up; especially when one side's historical position is largely in bad faith.

Next time: Well, I'll let it be a surprise.

11 October 1999

This brings us to the concept that really separates lawyers from political scientists and historians. Lawyers focus on the remedy that is (or is not) available for conduct at least as much as they care about the conduct itself. Political scientists and historians, on the other hand, virtually always ignore the remedy. Leonard Levy's American Constitutional History—a text used for many, many years in many, many undergraduate courses on constitutional law— has damaged a generation of law students, who discover that Levy's failure to consider remedies so skewed his presentation as to make it worse than useless.

So, what remedies are at issue in Tasini? We'll start with the statutory remedies under the Copyright Act (17 U.S.C. §§ 101 et seq.):

• An injunction against future infringement, which may include seizure and destruction of infringing materials
• Monetary damages, which may be either a statutory amount per incident of infringement or actual damages; the plaintiff must elect one of these remedies before trial
• For willful infringement, trebling of any monetary damages
• Reasonable attorney's fees and costs, paid by the loser

A winning plaintiff can obtain remedies of each type in the same case. A winning defendant can get only attorney's fees and costs paid by the unsuccessful plaintiff (see Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)), although truly egregious and knowingly false claims of copyright infringement can result in criminal sanctions against the plaintiff. We'll break down each category over the next few entries.

Why am I spending so much journal time on legal stuff? First, because it really reflects a significant part of my life. Second, because I'm not getting much nonlegal writing done. Third, because my "life" is a mess right now, it's not getting better, and the details are none of anyone else's business (and certainly not for publication on the web).

Besides, if these little legal snippets keep one writer from getting ripped off, or help one writer take appropriate action after getting ripped off, I'll be quite pleased. As I've mentioned before, I'd rather practice preventive law; unfortunately, nobody has really figured out how to make a living doing it, except by writing "self-help" books.

15 October 1999

Due to technical difficulties beyond our control, Monday's segment was not properly transferred to the server. The responsible parties have been purged and are now in Reeducation Camps, helping build the Transelectronic Railway.

"Injunction" is the legalism for "don't do it any more." It is theoretically possible to obtain an injunction to force someone to take an action, not refrain from one, but that is disfavored in civil suits that do not involve government officials, and then should be called mandamus ("do your duty").

In copyright law, the injunction ordinarily prohibits the defendant from any further action that would continue the infringement, and may require the defendant to destroy unsold infringing materials and attempt to pull materials back from distribution. This is quite a powerful remedy, and scares the living daylights out of publishers and multimedia providers.

Sometimes, though, an injunction is merely shutting the barn door after the horses have bolted. That is largely the case in Tasini. Contemporary contracts for periodicals include (often overreaching) electronic database clauses. Tasini was filed in 1994, and contract practices changed significantly in the following year. (Hold your questions about Wizards of the Coast's Dragon CD-ROM for another time.) Thus, most of the infringements—particularly those by the bigger databases, such as NEXIS—are long-past, fleeting, and extraordinarily difficult to track. As we'll see, this also implicates the damages factor.

If applied strictly to Tasini, NEXIS would have to shut down while the database owners screened each and every article in the database to ensure that appropriate electronic database rights existed, either through the work-for-hire doctrine or via contract. What Tasini really says is that electronic database rights are separate from print publication rights—they are a derivative work like the novelization of a screenplay (or screenplay written from a novel).

Given the political muscle of the database providers and the daily reliance upon those databases by libraries, lawyers, legislators, and journalists, I don't believe that any injunction fashioned by the court would be immediate. Instead, the judgment would be stayed for long enough to allow the database providers to screen their databases.

Those of you who read my reviews—all three of you—may be wondering what has happened. Has the venom emptied from my poison pen? Do I just need a new ink cartridge compounded from ricin and sulfuric acid? Nope. I'm still reading at my normal voracious rate; there just hasn't been much that has struck me as requiring a review lately. I'll rectify that shortly, though. I promise.

Trust me. I'm a lawyer.

22 October 1999

Rather a grey week. Lots of effort, but lots of dead ends, too. Sometimes plaintiff's-side litigation can be heartbreaking. Telling someone that their situation is indeed very serious, that the defendant really is liable, but that legal procedure completely protects the defendant gets really old after a while.

The only worthwhile (paid) work this week has been for two of my organizational clients. No, I don't work both sides of the street, like a lot of big-firm litigators. I have a few organizations (or, in reality, disorganizations) as clients. Two are writers' organizations, and the others are a mixture of academic interest groups and the like. Sometimes it makes a nice change from the usual. The more I do it, the less I like litigation. The class of human being that wants to go into litigation is the one that causes all those great lawyer jokes.

For example:

What's the difference between a female prosecutor and a rabid Rottweiler?
The lipstick.
 
What's the difference between a male divorce lawyer and a rooster?
The rooster clucks defiance.

I have a lot more, but many of them are much less savoury—and, unfortunately, much more true.

25 October 1999

Further technical difficulties have required further purges. I have eliminated the colonels and majors, comrades. Whether the generals or the captains are next will be up to you. I expect greatly improved technical reliability from you without capitalist expectations of greater resources. Those of you who are truly committed to the revolution will succeed. Those of you who do not will be . . . reeducated.

Sounds like Diana the Cop is having a good time. I think I know when the shine will really come off the job. There's one thing that really frustrates law enforcement people more than anything else: the defendant who gets off on a technicality because somebody just got careless. It might be getting distracted while reading the Miranda warning ("You have the right to remain silent . . . "). It might be an illegal search, or a Breathalyzer that fails diagnostics, or any of a wide variety of procedural errors. That's when cops start whining about "excessive defendant's rights."

Yes, it's frustrating. But I've seen the alternatives, even in such "enlightened" nations as England. Our system has its flaws; to paraphrase Winston Churchill, it is the worst—except for all the others. Unfortunately, there is a "young black male" exception to the Fourth Amendment—in practice, if not in the letter (or intent) of the law. But every law enforcement system has its problems. In England, one can always remember the Birmingham Seven.

So keep your chin up, Diana. It's going to happen, sooner or later. Don't let it ruin your career when it does happen.

29 October 1999

An interesting publishing-related item in legal news today. This may have some effect on certain disreputable marketing practices.

Certain big-name authors (you know who you are) will provide a good "quote" for just about any book thrust in front of them. Sometimes it's just a desire to help writers; sometimes it's favors owed an editor; in at least one case, it is a complete lack of critical ability (demonstrated in that big-name author's reviews). But this is primarily a marketing tool. Sometimes, though, the quotation is as prominent as the actual author's name, if not larger.

Let's jump over to nonfiction for a moment. Remember the Beardstown Ladies? That group of senior citizens who allegedly made 23.4% annual return over a ten-year binge in the stock market? Well, they didn't. A sharp financial reporter noted that they included the value of their dues in the returns, and recalculated the annual return—a much-less-impressive 9.1%. (If you live in a state with an income tax in excess of 2.7%, you would have earned an equal return with U.S. government bonds during that period.)

This "news" broke well before the paperback edition of the Beardstown Ladies' book was published, and the first page of the paperback edition notes the difference. Many overly cautious investment advisors follow a similar strategy, which has its own risks (that are seldom disclosed to the public). However, the cover of the paperback still trumpeted the 23.4% annual return.

Enter the California Unfair Competition Act, an exceptionally broad statute that protects consumers from false advertising. It is fairly settled law that the book cover or jacket is advertising—"commercial speech" in constitutional parlance—and is thus subject to appropriate commercial regulation. The Unfair Competition Act says that it's unfair competition to present as a fact a known untruth in advertising. And, therefore, Disney (the publisher) has been found liable for the known untruth on the cover of the paperback edition of the Beardstown Ladies' book (The Beardstown Ladies' Common-Sense Investment Guide: How We Beat the Market and How You Can Too). See Keimer v. Buena Vista Books, 99 C.D.O.S. 8672 (1999).

This is not a startling conclusion. Although I am a strong proponent of the First Amendment, it is neither reasonable nor within the confines of First Amendment law to allow an advertiser to shield outright lies by reference to a doctrine intended to protect primarily political discourse. See, e.g., Ronald D. Rotunda and John E. Nowak, Constitutional Law (5th ed.) §§ 16.1-16.6, 16.26-16.31.

Jumping back to the fiction world, this decision (if it stands; the appeals process will continue for quite some time yet), should grab a few overzealous marketing types by the gonads. A little bit of puffery, or opinion, is fair game. But… if it is puffery attributed to someone who did not actually read the manuscript, that's a known untruth that fits within Keimer.

So, maybe, just maybe, we'll get the covers of our books back. Yes, they'll still be marketing instruments. But, with due respect to the dead, I was awfully tired of seeing MZB's gushing quotation on every third or fourth fantasy novel by a woman. That would be a prodigious amount of reading, even for me—and my health, poor as it is, is better than Ms. Bradley's was during the last decade of her life.

Or maybe we won't get the covers back. Maybe we'll just get the same gushing, generic quotations—from people who actually read the manuscript.

31 October 1999

Happy belated wedding and birthday congratulations, etc. Welcome to Steven, our newest NAW member.

I suppose that, based on comments in the email exchanges, I should talk a little bit about fiction writing. This journal usually ends up taking a rather legal perspective on writing. OK, so I'm a lawyer. That doesn't stop at 6:30pm, just like being a writer doesn't stop while at the office during a "day job." I can't help it.

And, really, law and writing should be very much alike. The law (in common-law countries) is merely the final method of resolving conflicts short of violence. Fiction is usually about conflicts of some kind, even if only internal. I've had a great deal of success using "storytelling" techniques in my legal writing. For example, when "reciting the facts," I always try to structure it like a Shakespearean prologue. I think I've had some success, as even opposing counsel compliment me on the writing in my briefs. (That's usually before they lose. I've been pretty darned successful lately.)

The key for me is to humanize my clients, even when my clients are organizations. That need not mean dehumanizing the opposition. So many legal writing instructors claim that one should always refer to the opposition by their legal status—plaintiff, defendant, interpleader, third-party defendant, and so on—while referring to one's own client by name. What a crock of shit. All that does is take the judge away from the story. The last thing I need when presenting a novel theory is anything to distract the judge!

But back to the putative fiction for a moment. Things are going very slowly for me at the moment. I'm in the middle of four different projects—three in research, one in writing. The novella is stalled again for research, so I've picked up on a short. I like it so far; it's got quite a bit of bite to it. Hopefully, it will be ready for RMCrit before very long, although I suspect that it won't get very far.

So, my actual word count for October is as follows:

Legal writing: 25,000 words
Other nonfiction writing: 5,000 words
Fiction: 2,500 words

Ouch. At least it averages 1,000 words a day . . . but that's only four or five pages.

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