I am thrilled to post Show #209, April 15, Dutch politician and former European Parliament member Lousewies van der Laan on promoting democracy and technology. I met Lousewies at a conference on innovating justice at The Hague in 2012. Lousewies is a leading voice on democracy and human rights in the EU, and I was delighted to have her on the show to discuss a wide range of issues involving the operation of democracies in 2014. From the rise of the far right to the role of the public in policymaking, we had a terrific discussion that I greatly enjoyed. I look forward to chatting with Lousewies’ colleagues on upcoming shows!
A Tech/Law Talk Show designed to cover modern technology and Internet issues with host Dave Levine.
At LONG last, after working on issues ranging from transparency in international trade and hydraulic fracturing to making sure that 3Ls have grades upon which to base their graduation, I am now going to begin a flurry of posts of this quarter’s shows. Thanks for your patience, and get ready for a barrage!
So let’s start with Show #208, April 8, my interview with four-time guest (thanks Mark!) Prof. Mark Lemley of Stanford Law School on this term’s United States Supreme Court intellectual property cases — and there are a banner number. This term’s cases have addressed some of the most vexing issues in patent law generally, ranging from claim construction to abstract ideas. We discussed the primary cases, as well as current legislative efforts to address patent trolls/non-practicing entities/patent assertion entities. As always, I greatly enjoyed my discussion with Mark.
[Ed. note: apparently the Facebook “like” box is currently broken. So like it some other way, if you’d like].
When Harold Ramis died in late February, I reflected upon his long career in comedic acting and film. As a much less successful alumna of the comedy classes offered by Second City, I appreciate the subtle but hilarious humor that Ramis and his SCTV counterparts added to film and television. And after I had considered his impact, like any good copyright attorney, I asked the next logical question: How often had he been sued?
The answer, from what I could tell from reported law decisions, was three times, with the caveat that legal database searches donâ€™t uncover most cases that settle early or cases that are threatened but not filed. The reported lawsuits followed the same fact pattern: an unknown author alleging that the plot of a successful movie co-written, directed, or produced by Ramis had infringed upon the plaintiffâ€™s earlier treatment of the same idea, and that Ramis owed his success to the plaintiffâ€™s contribution. The lawsuits appear loosely one per decade.
So hereâ€™s a brief rundown of those cases:
The first case, Meta-Film Associates v. MCA, concerned Animal House, which Ramis co-wrote. According to the plaintiff, author James Hart had written the screenplay Frat Rats and submitted it to a director for Universal in mid-1975. The director, dismissing the screenplay outright as â€œterrible,â€ never brought it to the attention of Universal executives.
Ramis, under the auspices of the National Lampoon Company, announced his intention to create a film based on high school or college life, and very soon after, another contact from Universal Studios contact National Lampoon expressing interest to produce. National Lampoon delivered the treatment for Animal House in early 1976. And predictably, the plaintiff sued, alleging that National Lampoon had copied Frat Rats. The judge ruled that the plaintiff had to prove National Lampoon had access to Frat Rats, and similarity, in inverse proportions to each other. The judge denied a motion for summary judgment, which would have allowed Ramis to win the suit outright before a jury trial. However, the judge also found as a matter of law that the plaintiff could not prove that National Lampoon had any access to Frat Rats, a ruling that had the effect of ending the lawsuit.
Lawsuit number two challenged the originality of Groundhog Day. In Arden v. Columbia Pictures, author Leon Arden alleged that Groundhog Day copied the idea of his novel, One Fine Day, in which the main character repeated the same day dozens of times. Again on a motion for summary judgment, the judge took painstaking detail to explore the plots of One Fine Day and Groundhog Day, co-written by Ramis.
This time, the defendants conceded (for purposes of the motion) that they had access to the novel. However, the judge concluded as a matter of law that the novel and the film were so dissimilar that there was no illegal copying. The court explained, â€œthe idea of a repeating day, even if first conceived by the plaintiff, is not protectable.â€ The judge ponderously walked through the elements of plot, mood, characters and character development, pace, setting, sequence of events, and specific similarities to determine that no reasonable jury could find in favor of the plaintiff. (Good thing for Kate Atkinson and her current bestseller Life After Life, which expands upon the same idea.)
The third and most recent lawsuit involved a lesser-known Ramis work, The Ice Harvest. Here, in Coffman v. Ramis, the infringement was allegedly of a movie script registered with the Writers Guild of America, West. The registration included a description of how the town of Wichita Falls, Texas got its name. The Ramis-directed film The Ice Harvest, set in Wichita, Kansas, uses the sentence, â€œAs Wichita falls, so falls Wichita falls,â€ which the plaintiff claimed was infringing.
This time, the court did not even need to get to summary judgment, but instead was able to dismiss the lawsuit because the complaint failed to state a claim. First, that sentence had been copyrighted before, in a song in 1981; second, whatever plaintiff claimed was infringing was far from original. As such, the magistrate judge concluded that the complaint was not viable.
Are there any themes here? Perhaps the Harold Ramis trilogy could demonstrate a shifting inclination of the court to dispose of copyright infringement cases earlier in their timelines. Itâ€™s not uncommon for successful movies to draw lawsuits based on tangential similarity between plotlines and characters, but that doesnâ€™t mean they can be easily disregarded. And worse, they can also draw out opportunists. As one court noted in a copyright infringement lawsuit against Sex and the City writer Candace Bushnell, â€œthis form and forum of combat does open the potential for opportunism and other kinds of abuse of process, and hence the undercurrent that runs with some frequency through the protestations of renowned defendants like Bushnell who are brought into the public arena to answer charges of wrongful conduct.â€
Additionally, new standards for plaintiffs to state all legal complaints change the copyright litigation terrain. Copyright infringement cases are perfect candidates for jury trials; even if they have elements that can be decided â€œas a matter of law,â€ authorsâ€™ legal claims tend to be filled with factual determinations. For example , although the Animal House court found that National Lampoon couldnâ€™t possibly have had access to Frat Rats before submitting its treatment to Universal based on witnessesâ€™ testimony, the credibility of those witnesses is ultimately still in the purview of the jury. Additionally, although the Groundhog Day court found it not substantially similar to One Fine Day, perhaps the jurors would have come to a different conclusion. But in The Ice Harvest , decided under the new standards, it was much easier for the court never to get to factual determinations at all.
Of course, itâ€™s important not to deduce too much from the case conclusions; each case has a unique set of circumstances, any of which could have contributed to the early disposition of the case. But the differing pretrial resolutions of Ramisâ€™s cases â€“ from refusing to grant summary judgment, but de facto resolution based on a single factor; to granting summary judgment, based on resolution of facts as a matter of law; to dismissing the plaintiffâ€™s complaint outright â€“ might suggest the increasing unwillingness of the courts to tolerate legal fiction-writing. Outside of Hollywood, that is.
Since the founding of the show and this website, Hearsay Culture has been singularly focused on the radio show/podcast content. I have very occasionally blogged, and less so in recent years. For the most part, the absence of blog posts has been because of (a) limited time and (b) wanting to not detract from the focus of the show — unbiased, informed interviews with exciting guests across a range of disciplines discussing critical intellectual property and technology issues — with content reflecting my other professional interests (you can follow those interests elsewhere, if you’d like).
But what if I could find a terrific blogger who would like to join me at Hearsay Culture and contribute outstanding content that fits with the show’s goals? Now that would be pretty great. So I’m pleased to announce that Prof. Julie Cromer Young of Thomas Jefferson School of Law has joined Hearsay Culture as a blawger!
I am very excited about Julie and Julie’s work, and am very grateful that she wants to blog here. Julie is a copyright and civil procedure scholar, and her intelligence and eclectic interests, ranging from data in space to child authorship, are a perfect fit for Hearsay Culture. The director of Thomas Jeffersonâ€™s Center for Law and Intellectual Property, she practiced in Chicago. With practice and academia in her background, Iâ€™m looking forward to her contributions here! Julie can be reached via email at email@example.com.
Welcome Julie to Hearsay Culture!
I’m thrilled to announce that Hearsay Culture will now be airing monthly on Freirad community radio, Innsbruck, Austria! Freirad will be selecting one show per month to air on Wednesdays at 2pm (local time). Next week’s selection will be my interview with Prof. Susan Sell.
So that there’s no confusion, Hearsay Culture’s radio home will remain at KZSU-FM (Stanford) and that relationship and air schedule is not changing.
Hearsay Culture’s relationship with Freirad was forged by Hearsay Culture guest Valentin Dander, who was a DJ on the station. Like KZSU, Freirad is a public/community radio station but unlike KZSU, was born as a pirate radio station that challenged state media dominance in Austria. Given my interest in supporting and contributing to public media and our collective efforts to share information for the betterment of all, I am excited about this new relationship and look forward to our collaboration. Thanks much to Valentin and everyone at Freirad!
If you have suggestions for other public media outlets — particularly radio and other non-Internet sources — that might like to air Hearsay Culture, please email me at firstname.lastname@example.org.
I’m pleased to post Show #207, March 19, my interview with Harmen Groenhart of Fontys University of Applied Sciences, School of Journalism, Tilburg, The Netherlands, on public media accountability. I met Harmen at a conference on transparency held at HEC-Paris last year. Harmen studies the role of transparency in the operations of public media, a critical issue that supports the credibility institutions that establish our willingness to consume (or ignore) media. In our discussion, we examined Harmen’s theories and principles for an effective transparency regime, and the meaning of transparency and accountability in communications generally. It was a terrific discussion!
I’m pleased to post Show #206, March 5, my interview with Prof. Orly Lobel of University of San Diego School of Law, author of Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids, and Free-Riding. Orly has written a timely account of the benefits of mobility of labor and ideas in the modern economy. Examining a range of issues from the impact of trade secrecy on employee mobility to new forms of innovation that rely on sharing, Orly has written an insightful examination of the under-explored area. As I see it as a wonderful and valuable extension of pioneering work by AnnaLee Saxenian, I greatly enjoyed the interview!
* which is related to one of Hearsay Culture’s core principles.
As I mentioned on this week’s show (which will post soon), next week I am going to have an exciting announcement about increased blogging here at Hearsay Culture. This is great news and I’m very excited about it. By the way, no need to worry about its impact on the radio show/podcast, as it will augment rather than supplant or substitute for it!
Meanwhile, in the spirit of blogging, I thought I’d post a link to an essay that I’ve published on the need to conceive the “public interest” broadly when creating intellectual property and technology law. Unfortunately, the United States Trade Representative’s first serious efforts at including the public in lawmaking (think Trans Pacific Partnership Agreement) suffers from a narrow definition of the public interest, which will move us further down the road of polarization and imbalance in the law.
This is a critical issue that is actually related to my goals for Hearsay Culture. From day one, I’ve wanted to produce a show where individuals and groups that don’t talk to each other enough can interact. That’s why Hearsay Culture’s guests are not just IP and tech law professors like me (as wonderful as those people are), but scholars from a variety of fields and people operating in the “real world” (and sometimes in ways that many don’t like). So too, policymaking cannot afford to be siloed, as we all suffer for it. We need to mix it up and be challenged in substantive ways, and often.
I hope that you enjoy my essay (or at least find it informative and thought-provoking), and look for my announcement next week!
I’m pleased to post Show #205, February 26, my interview with Prof. Susan Sell of the Elliott School of International Affairs at The George Washington University on international relations and transparency. Susan is one of the leading experts on the processes and conditions that allow for international relations and negotiations to operate effectively and openly. As a scholar with years of experience observing and writing about the nuances of negotiation and diplomacy, her insights with regard to the recent and ongoing battles over the Trans Pacific Partnership (TPP) negotiations are key to our collective understanding of the state of international relations today. We discussed a variety of issues related to the current state of the TPP negotiations and international diplomacy generally. As a huge fan of her work, I greatly enjoyed our discussion.
On a day when there is yet another revelation about the extent of the NSA’s efforts to collect all of the world’s communications, I’m pleased to post Show #204, February 19, my interview with Prof. Peter Swire of the Scheller College of Business at the Georgia Institute of Technology and a member of President Obama’s Review Group on Intelligence and Communications Technologies. As one of the members of the President’s panel, Peter had the opportunity and the privilege to both assess the NSA’s programs and make recommendations about how to scale them back under the law. Because the range of the programs is yet to be known (assuming that the public will ever know the full extent of the NSA’s activities), the interview reflects a snapshot of what could be discussed on February 17, 2014. Nonetheless, Peter’s insights and reflections on the scope and impact of these programs should help inform the public and policymakers as we grapple with what has occurred, and is occurring. Thanks to Peter for taking the time, and I greatly enjoyed the interview.