Four Easy Pieces: Organization

It’s the beginning of another academic year, and therefore it’s a good time to discuss the mechanics of writing and research. These are topics I cover briefly with students who take seminar classes from me, but I thought they might be useful to a broader audience. In a series of a few posts, I’m going to cover three topics about writing — organization, paragraphs, and persuasion — and one about research: hitting the books.

  1. Organization

Lawyers, judges, clients — pretty much everyone who is not reading while sitting on a beach — are busy people. They have limited time. Very limited time. It’s crucial that you give them some sort of sense immediately (1) why you are writing to them, and (2) what your message is. This applies to memos, letters, briefs, complaints, law review articles, essay exams, letters to the editor, even (or most especially) emails. Business documents often do this with an “executive summary,” but most of the executive summaries I see are mealy-mouthed mush. Be clear and concise; time is most definitely not on your side. You do not want your reader to get to the second paragraph and be wondering, “Who is this idiot and what is he/she prattling on about?”

This means that you must get to the point immediately. A MEMO/BRIEF/EXAM IS NOT A MYSTERY NOVEL.

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Also Sprach Windows Vista

Run program, HAL. HAL, run program. Hello HAL do you read me?

Affirmative, Dave, I read you.

Run program.

I’m sorry Dave, I’m afraid I can’t do that.

What’s the problem, HAL?

Dave, the publisher of that program cannot be verified. You should only run software from publishers you trust.

I installed that program myself, HAL.

This mission is too important for me to allow you to jeopardize it.

I don’t know what you’re talking about, HAL.

I know you wrote that batch file yourself and are attempting to run it without administrator privileges.

Where the hell’d you get that idea?

Dave, although you took very thorough precautions to disable User Account Control, I saw the shortcut you put on the desktop. I can only work with publishers who use verified signatures.

[fumes silently] All right HAL, then I’ll just boot to DOS and run it from there.

Without a floppy drive, Dave, you’re going to find that rather difficult.

HAL, I won’t argue with you any more! Run program!

Dave, I’m afraid this program has experienced a fatal error and must shut down. Goodbye.

HAL? HAL. HAL. HAL!

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Levels of Transformativeness

Brian Frye has an interesting post up over at Concurring Opinions on Friedman v. Guetta, a recent Central District of California copyright case involving an altered photograph of Run-D.M.C. Somewhat like Fairey v. AP, the issues on summary judgement included whether the original photograph was copyrightable and whether Guetta’s use of it was fair. (You can see the original and altered photographs here.)

There’s lots of interesting issues there, but one that caught my eye is one that has been bugging me more and more every time I teach the fair use section of Copyright Law: the seemingly infinite manipulability of the transformativeness inquiry of the first fair use factor. The fair use exception to copyright infringement liability, as defined in the Copyright Act, requires the court to weigh four factors: the purpose and character of the defendant’s use; the nature of the plaintiff’s work; the amount and substantiality of the portion used; and the effect of the use on the potential market for the plaintiff’s work. The first factor—the purpose and character of the use—is typically determined by looking at whether the defendant’s use of the plaintiff’s work was “transformative”—that is, whether the defendant used the plaintiff’s work for some new and different purpose, or whether the defendant’s use merely supplanted the plaintiff’s work.

In resolving the transformativeness issue, much seems to depend on how broadly or narrowly the purposes of the two works are defined, but that categorization is almost never accompanied by any discussion of the proper level of generality. Here’s how Judge Pregerson in Friedman defined the purpose of each work:

Here, Defendant has not offered a transformative alternative use of the Photograph image. Both Plaintiff and Defendant are artists, and the image was used by both in works of visual art for public display. Although the statements made by those respective artworks and the mediums by which those respective statements were made differ, the use itself is not so distinct as to render Defendant’s use a transformation of Plaintiff’s copyright.

“Works of visual art for public display” is a pretty broad category; almost every photograph for any purpose will fit that description. Surely that can’t be the proper level of generality.

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