What’s Up With SOPA?

The tech blogosphere is abuzz with discussion of yesterday’s House Judiciary Committee hearing on SOPA, the Stop Online Piracy Act, H.R. 3261. (Mainstream news sites seem not to have noticed; the New York Times website front page mentioned the impending sale of Yahoo, but not SOPA.) A good deal of that discussion refers to SOPA in apocalyptic terms: the bill would allegedly “break the Internet,” or “end the Internet as we know it,” or drive YouTube and Facebook out of business if enacted. Even non-lawyer relatives are asking me about it.

Does the bill really do all that? No. Copyright-related debates have been going on long enough, and at such a fever pitch, that such predictions are pretty much the price of admission now to rally the troops. There’s a pretty good inductive argument that predictions of the imminent death of the Internet or of the content industry are actually a reliable indicator that neither the Internet nor the content industry will die. But that doesn’t mean SOPA’s a good idea. So step one is figuring out what it does.

I’ve sat down and read the bill and there’s some aspects to it I think are misunderstood — perhaps by almost everyone. One of its provisions is much more narrowly targeted, and I think reasonable, than is generally being described. I’m going to break this discussion up into a few posts, and I’ll tackle that one first. A second provision is … deeply odd, in ways I haven’t seen mentioned, and I have serious reservations about it, but it is probably not the Vishnu-like destroyer of worlds it is being portrayed as. Finally, I’ll wrap up with some thoughts on what drives copyright rhetoric and politics generally.

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One Public Domain to Rule Them All

The Supreme Court heard oral argument this morning in Golan v. Holder, which considers the constitutionality of Section 104A of the Copyright Act, added in 1994 by the obfuscatorily named Uruguay Round Agreements Act. The constitutional issue is whether Congress can, consistent with the Copyright Clause and the First Amendment, remove works from the public domain by “restoring” copyrights to works that had either expired or failed to vest due to a failure to comply with technical requirements.

If that sounds a bit abstruse, here’s the issue put more concretely: can Congress restore the United States copyright to J.R.R. Tolkien’s Lord of the Rings trilogy? Or once a work is in the public domain, for whatever reason, is it there irretrievably? The first volume of The Lord of the Rings was published in the United States in 1954 with a paltry 1,500 copies; even though the Hobbit had done well, Tolkien’s publishers did not anticipate what a blockbuster success The Lord of the Rings would be. As a result, the copies soon sold out, and instead of running another U.S. printing, Houghton Mifflin, Tolkien’s U.S. publisher, imported more copies from the UK to fill demand. But apparently Houghton Mifflin screwed up, because they accidentally imported too many: U.S. copyright law at the time contained a protectionist “manufacturing requirement” for books, requiring books sold in the United States to be printed in the United States, with only limited exceptions. A paperback publisher discovered the error in 1965 and printed 150,000 copies of the trilogy without paying any royalties to Tolkien or his publishers.

The Lord of the Rings is just one example of foreign copyright owners getting tripped up by U.S. copyright formalities.

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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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