caselaw – Techdirt (original) (raw)

from the seems-sketchy dept

For the past few years, there’s been a really bizarre “fight” going on in the copyright world. I had considered writing about it nearly two years ago when it first seemed to flare up, but I had hoped that facts and cooler heads might prevail. Silly me.

This involves a few issues that are fairly deep in the weeds if you’re not a lawyer, so I’ll try to provide a quick overview of what’s happening for non-lawyers. The American Law Institute (ALI) is a non-profit organization which states its mission is to help to “clarify, modernize and otherwise improve the law.” Its most well known products are the so-called “Restatements” of various laws. Restatements are, generally speaking, attempts to provide significant additional annotations on the law, based on caselaw. That is, it’s a very useful tool for courts to understand how various aspects of the written law have been interpreted by judges before them. They are scholarly works, put together by bringing together large groups of legal experts in a field to work out a very balanced review of how courts have interpreted the law.

Seeing as these are merely effectively annotations on the law, they are, in no way, binding on a court. Instead, they are designed to be useful in helping judges understand the current state of the law. A few years back, ALI decided to put together a Restatement of Copyright Law. It’s been a long, slow process. To put it together, ALI has brought together a large and diverse group of copyright lawyers, practitioners, and scholars representing pretty much all sides of the various copyright debates. If you were planning to release a document that was one-sided and “biased” this is not the way you would do that.

Among the people working on the Restatement there are some of the most famous names in copyright scholarship — many of whom historically have supported a more maximalist interpretation, including David Nimmer, and Jane Ginsburg. Others working on this with a long history of copyright maximalism, include former Copyright Office General Counsels Jacqueline Charlesworth and Sy Damle. You have a bunch of current and former RIAA and MPAA folks, including former RIAA lobbyist and current federal judge Beryl Howell. There’s also Michael Fricklas, former General Counsel of Viacom, Michael Kane from Disney, former Warner Bros. and MPAA VP Dean Marks, former RIAA General Counsel Steven Marks, current Senior VP and Associate General Counsel at the MPAA Ben Sheffner, and also Shira Perlmutter, a well known maximalist currently at the USPTO, but previously at the Copyright Office, IFPI, and Time Warner.

In short, there are very few of the big names in copyright maximalism I can think of who aren’t among the team tasked with this process.

But it also includes plenty of people with more enlightened views on copyright — those who recognize that copyright was supposed to be designed to benefit the public first and foremost. Basically, it’s a pretty balanced list. In the years since the Restatement has been announced, it’s appeared that it’s this very balance of those working on the Restatement that has so upset the maximalists. As a whole, they’ve basically been getting their way with their interpretation and ever-growing expansion of copyright law. Over and over and over again. The idea that anyone who actually recognizes the original intent of copyright law might even weigh in on helping to explain to judges what courts have said is worrisome to them. This is silly. The point of the Restatement is to explain what courts have said. Restatements don’t say what the law should be or what anyone hopes it should be. It’s very much about highlighting what the caselaw says.

Two years ago, the Copyright Office put out a letter whining about the Restatement process, (despite so many people related to the Copyright Office being on the team putting together the Restatement). At the time, I spoke to someone else on the team who told me that the whole thing was purely a “turf battle,” in which the Copyright Office wants the courts to look to it for legal interpretations (generally not something the courts have done), so this is seen as a “competitive” effort. But the bigger issue, honestly, seems to be one factor and one factor only: Hollywood and its friends decided long ago that the public interest has no business in copyright. And this Restatement process even acknowledging those who have worked to remind people that copyright is supposed to be in the public interest is seen as a threat to their views.

But here’s where things get insane. The lobbyists for copyright maximalists have now convinced one senator and four members of Congress to pressure the ALI to drop the entire Restatement of Copyright Law project.

In case this is not clear: members of Congress are telling a private organization that it should not give its opinion or analysis on the state of the law. That’s fucked up no matter how you look at it. Senator Thom Tillis, and Representatives Ben Cline, Ted Deutch, Martha Roby, and Harley Rouda, have some explaining to do. Using the power of Congress to say that a private organization shouldn’t talk about the law is insane.

Even the specifics in the letter are crazy — and clearly were talking points from lobbyists.

ALI is a respected organization, whose Restatements are often cited as highly persuasive authority in court cases and scholarly works. Traditionally, Restatements have focused almost exclusively on areas of common law because judicial rulings across different jurisdictions may vary and ALI’s interpretation are predisposed to assembly, analysis, and summaries.

By contrast, laws created through federal statute, including federal copyright law, are ill-suited for treatment in a Restatement because the law is clearly articulated by Congress in both the statute and legislative history. In creating legislation, Congress develops legislative history through hearing testimony and Committee Reports. Legislation is then expertly interpreted by agencies charged with that authority by Congress — such as the U.S. Copyright Office and U.S. Patent and Trademark Office. The ALI has long recognized that federal statutes do not require a Restatement and are not an appropriate platform to effect changes in federal law.

This is misleading on nearly every level. First, while copyright law currently comes via federal statute, large chunks of that federal statute developed via common law rulings that determined the basic shape of the law, which was eventually codified by Congress. This includes, most notably, the entire concept of fair use, which was a common law idea. Other areas of copyright that were developed through common law include things like copyright on sound recordings, public performance copyrights, rights of first sale, the idea/expression dichotomy, scenes-a-faire, the idea of “de minimis” copying not being infringing, etc. In short, much of what we know of as statutory copyright came about because of common law interpretations of copyright.

Second, if you’ve paid any attention to the caselaw over the past forty or so years of copyright, basically from the Sony Betamax case forward, there have been all sorts of areas of copyright law that have required judicial interpretation of the law. And that’s exactly what a Restatement is useful in dealing with. Just to take one (of many!) examples, the Blurred Lines case has shaken up copyright law tremendously over the past couple of years, based entirely upon the court’s interpretation of the law. And, as we speak, the 9th Circuit is considering what framework to use when determining if a similar song is infringing. These are exactly the kind of things a Restatement is useful in dealing with.

Third, and most importantly, if Congress feels that a court — or the Restatement — has gotten something really wrong, it has the power to revise the law. So it’s unclear why these elected officials feel so threatened by someone highlighting how various courts have ruled — especially given the incredibly balanced nature of the group tasked with putting together the Restatement.

These elected officials seem bizarrely worried that courts will somehow rely on the Restatement too much, despite little evidence that this would ever be an issue (and separately, I find it amusing that they keep pointing to legislative history, when various Constitutionalists insist that legislative history is meaningless in interpreting the statute, but I digress).

Throughout its almost 100 years of existence, the ALI has never chosen to draft a Restatement of an area of law that is almost exclusively statutory law — until now. We are deeply concerned by the ALI’s current Copyright Restatement Project. In fact, any Restatement or other treatise relied on by the courts that attempts to diminish the importance of the statutory text or legislative history relating to that text would warrant concern. Courts should rely on that statutory text and legislative history, not Restatements that attempt to replace the statutory language and legislative history established by Congress with novel interpretations.

But then they immediately undermine the point made in the above paragraph:

We also understand that the ALI has come under some scrutiny relating to other controversial projects. The late Justice Antonin Scalia, who was the most frequent author of opinions citing ALI publications in nine opinions, wrote that “modern” Restatements “are of questionable value, and must be used with caution.” He added that, “[o]ver time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations of what the law ought to be.” In his dissent in Kansas v. Nebraska, Justice Scalia stated that newer Restatements “should be given no weight whatever as to the current state of the law, and no more weight regarding what the law ought to be than the recommendations of any respected lawyer or scholar.”

Lately, many states have also begun to repudiate the more recent and controversial Restatement projects, such as the Insurance Liability Restatement. Arkansas, Michigan, North Dakota, Ohio, Tennessee, and Texas have all recently passed legislation that in some form seeks to curtail, or even condemn, the use of the Insurace Liability Restatement under their respective insurance laws. The Kentucky and Indiana legislatures have also passed resolutions stating their opposition to the Insurance Liability Restatement.

So… all of that completely undermines the entire argument here. It’s saying that judges clearly recognize that they are free to ignore or decline to endorse anything in a Restatement, and that legislative bodies (like Congress) are free to clarify if a Restatement gets something wrong. So… why are they so upset that a Restatement is taking place in the first place? If it’s no good, judges can and will ignore it. If it gets stuff wrong, Congress has the power to clarify the law.

One other thing that’s important here. I mentioned earlier that David Nimmer is one of the people involved in this Restatement. Nimmer is also a co-author (with his father) of Nimmer on Copyright, which is (like the Restatement) an interpretation of copyright law, that is frequently cited and relied upon by courts. Nimmer on Copyright has been cited by over 2,000 court cases. Here’s former Director of the US Copyright Office, Maria Pallante waxing poetically on the value of having Nimmer on Copyright around to rely on:

What would the Nimmer of 1963 do with red flag knowledge or orphan works? What protections would he assign to vidders and bloggers? How would he analyze the application of copyright law to the software in cell phones and car radios? What would he think of the development agenda at WIPO? What would he do with section 115?

Thankfully, through Nimmer the younger, the treatise goes on, building upon the early days and reminding us that the practice of copyright law isn’t only exciting but difficult. It isn’t about what we know, or how quickly we can state it in this age of instant public discussion; rather it’s a matter of respect. The more one learns about copyright law the more there is to learn. What better symbol is there of this fact than the enduring legacy of Nimmer on Copyright?

Notably, approximately 30 seconds after the elected officials sent the letter discussed above, the very same Maria Pallante, who now heads the Association of American Publishers, a lobbying trade group representing legacy publishers pushing for ever more maximalist copyright, put out a press release cheering on the Congressional letter. Suddenly, Pallante’s love and affection for an effort to interpret copyright law has gone away when it’s not managed entirely by the Nimmer clan.

?We strongly commend Senator Tillis and Representatives Cline, Deutch, Roby, and Rouda for their powerful letter raising serious concerns about ALI?s Copyright Restatement Project. For more than 200 years U.S. copyright law has served as a crucial incentive to publishers, authors, composers, and countless other artists, enabling the creation and dissemination of works that improve our lives, enhance our culture, and drive an economic engine that delivers $1.3 trillion in annual value to U.S. GDP. The ALI?s attempt to reinterpret this critically important federal statute should be seen for what it is: a back door effort to circumvent the authority of Congress and undermine the copyright system that fuels our creative economy.”

When Nimmer does the exact same thing by himself, it’s “reminding us that the practice of copyright law isn’t only exciting but difficult” and to be celebrated. When a diverse group of scholars — including Nimmer — work on the very same thing, it’s “a back door effort to circumvent the authority of Congress and undermine the copyright system that fuels our creative economy.” Yeah, sure, Maria. That’s convincing.

The Tillis et al. letter then issues a list of 9 questions it demands that ALI respond to. Hilariously, despite the wide variety of perspectives included among the panel working on this, (and the lack of any such balance in nearly all previous efforts on copyright), these elected officials claim they want to know what ALI has done to stop “bias” and “potential conflicts of interest.” Did these same elected officials worry about “conflicts of interest” in the past regarding copyright — which has almost exclusively been twisted and expanded due to the wishes of Hollywood and its friends? No? Why is it only now, on a non-binding, series of commentary from a private organization, commenting on copyright law, that Congress is “worried” about “bias” and “conflicts of interest?”

There’s no need to answer. We already know.

Filed Under: ben cline, caselaw, common law, congress, copyright, david nimmer, harley rouda, martha roby, opinions, restatement of copyright, ted deutch, thom tillis
Companies: ali

Harvard Opens Up Its Massive Caselaw Access Project

from the good-to-see dept

Almost exactly three years ago, we wrote about the launch of an ambitious project by Harvard Law School to scan all federal and state court cases and get them online (for free) in a machine readable format (not just PDFs!), with open APIs for anyone to use. And, earlier this week, case.law officially launched, with 6.4 million cases, some going back as far as 1658. There are still some limitations — some placed on the project by its funding partner, Ravel, which was acquired by LexisNexis last year (though, the structure of the deal will mean some of these restrictions will likely decrease over time).

Also, the focus right now is really on providing this setup as a tool for others to build on, rather than as a straight up interface for anyone to use. As it stands, you can either access data via the site’s API, or by doing bulk downloads. Of course, the bulk downloads are, unfortunately, part of what’s limited by the Ravel/LexisNexis data. Bulk downloads are available for cases in Illinois and Arkansas, but that’s only because both of those states already make cases available online. Still, even with the Ravel/LexisNexis limitation, individual users can download up to 500 cases per day.

The real question is what will others build with the API. The site has launched with four sample applications that are all pretty cool.

Her son Julius is a confirmed thief. He did not turn over a new leaf. The vessel, not. the parking lot. Respondent concedes this in its brief.

The quality overall is… a bit mixed. But it’s fun.

Hopefully this inspires a lot more on the development side as well.

Filed Under: caselaw, caselaw access project, legal data, public info, public records, transparency
Companies: harvard, lexisnexis, ravel

Norwegian Court Orders Website Of Public Domain Court Decisions Shut Down With No Due Process

from the this-is-messed-up dept

What’s up Europe? We’ve been talking a lot about insanity around the new copyright directive, but the EU already has some pretty messed up copyright/related rights laws on the books that are creating absurd situations. The following is one of them. One area where US and EU laws differ is on the concept of the “database right.” The US does not grant a separate copyright on a collection of facts. The EU does. Studies have shown how this is horrible idea, and if you compare certain database-driven industries in the US and the EU, you discover how much damage database rights do to innovation, competition and the public. But, alas, they still exist. And they continue to be used in positively insane ways.

Enter Hakon Wium Lie. You might know him as basically the father of Cascading Style Sheets (CSS). Or the former CTO of the Opera browser. Or maybe even as the founder of the Pirate Party in Norway. Either way, he’s been around a while in this space, and knows what he’s talking about. Via Boing Boing we learn that: (1) Wium Lie has been sued for a completely absurd reason of (2) helping a site publish public domain court rulings that (3) are not even protected by a database right and (4) the judge ruled in favor of the plaintiff (5) in 24 hours (6) before Lie could respond and (7) ordered him to pay the legal fees of the other side.

I’ve numbered these because I had to break out each absurd part separately just to start to try to comprehend just how ridiculous the whole thing is. And now, let’s go through how each part is absurd in turn:

1. Wium Lie is being sued as an accomplice to the site rettspraksis.no by an operation called Lovdata. Wium Lie tells the entire history in his post, but way back in the early days of the web, while he was helping to create CSS, Wium Lie also helped put Norway’s (public domain) laws online. At the time, that same company, Lovdata, was charging people 1−per−minutetoaccessthelaws.Really.Eventually,LovdatadroppedthefeesandistheofficialfreepublishersofthelawsinNorway.Ofcourse,statutorylawisjustonepartof“thelaw.”Caselawisalsoquiteimportantand(thankfully)courtorders(thatmakeupthebulkofcaselaw)arealsointhepublicdomaininNorway.However,Lovdatachargesanabsurd1-per-minute to access the laws. Really. Eventually, Lovdata dropped the fees and is the official free publishers of the laws in Norway. Of course, statutory law is just one part of “the law.” Case law is also quite important and (thankfully) court orders (that make up the bulk of case law) are also in the public domain in Norway. However, Lovdata charges an absurd 1−per−minutetoaccessthelaws.Really.Eventually,LovdatadroppedthefeesandistheofficialfreepublishersofthelawsinNorway.Ofcourse,statutorylawisjustonepartof“thelaw.”Caselawisalsoquiteimportantand(thankfully)courtorders(thatmakeupthebulkofcaselaw)arealsointhepublicdomaininNorway.However,Lovdatachargesanabsurd1,500 per year to access those decisions. And, it claims a database right* on the collection it makes available online.

2. And yet, Wium Lie is still being sued. Why? When he saw that the website rettspraksis.no was trying to collect and publish these decisions, he borrowed Lovdata CD-ROMs from the National Library in Oslo. He borrowed the 2002 version of the CD-ROM. This date is important, because the EU’s database rights last for… 15 years. 2002 databases (and, yes, Wium Lie points out that it’s odd to call a stack of documents a database…) are no longer protected by the database rights.

3. So, yeah, the data is clearly in the public domain, and Wium Lie didn’t violate anyone’s copyright or database rights. Wium Lie notes that Lovdata didn’t even try to contact him or rettspraksis.no before suing, but just told the court that they must be scraping the expensive online database:

I’m very surprised that Lovdata didn’t contact us to ask us where we had copied the court decisions from. In the lawsuit, they speculate that we have siphoned their servers by using automated ?crawlers?. And, since their surveillance systems for detecting siphoning were not triggered, our crawlers must have been running for a very long time, in breach of the database directive. The correct answer is that we copied the court decisions from the old discs I found in the National Library. We would have told them this immediately if they had simply asked.

4. This is the most perplexing to me in all of this. I can’t read the Norwegian verdict (which, for Lovdata’s lawyers, I did not get from scraping your site!), and don’t know enough about Norwegian law, but this seems positively bizarre to me. It seems to go against fundamental concepts of basic due process, but how could a judge come out with a verdict like this?

5. ?!?>#$@!%#!%!@!%!#%!!

6. Again: is this how due process works in Norway? In the US, of course, there are things like preliminary injunctions that might be granted pretty quickly, but even then — especially when it comes to gagging speech, there is supposed to be at least some element of due process. Here there appears to have been something close to none. Furthermore, in the US, this kind of thing would only be allowed if one side could show irreversible harm from leaving the site up. It is difficult to see how anyone could legitimately argue irreversible harm for publishing the country’s own (public domain) court rulings.

I find it shocking that the judge ordered the take down of our website, rettspraksis.no, within 24 hours of the lawsuit being filed and WITHOUT HEARING ARGUMENTS FROM US. (Sorry for switching to CAPS, but this is really important.) We were ready and available to bring forth our arguments but were never given the chance. Furthermore, upon learning of the lawsuit, we, as a precaution, had voluntarily removed our site. If the judge had bothered to check he would have seen that what he was ordering was already done. There should be a much higher threshold for judges to close websites that just the request of some organization.

7. And, even if this was the equivalent of an injunction, to also tell Wium Lie and rettspraksis.no that they need to pay Lovdata’s legal fees is just perplexing.

the two of us, the volunteers, were slapped with a $12,000 fee to cover the fees of Lovdata’s own lawyer, Jon Wessel-Aas. So, the judge actually ordered that we had to pay the lawyer from the opposite side, WITHOUT HAVING BEEN GIVEN A CHANCE TO ARGUE OUR CASE.

This whole situation is infuriating. Being sued is a horrible experience in the first place. But the details here pile absurd upon preposterous upon infuriating. The whole database rights concept is already a troublesome thing, but this application of it is positively monstrous. Wium Lie now has some good lawyers working for him, and hopefully this whole travesty will get overturned, but what a clusterfuck.

* A separate tangent that I’ll just note here rather than cluttering up all of the above. I was a bit confused to read references to the EU’s database directive/database rights, because Norway is not part of the EU. However, since it is a part of the European Economic Area (yes — this can all get confusing), it has apparently agreed to enact legislation that complies with certain EU Directives, including the Copyright and Database Directives.

Filed Under: caselaw, copyright, court rulings, css, database, database rights, due process, hakon wium lie, norway, public domain
Companies: lovdata, rettspraksis.no