There Is No Joy in Mudville

At least, not if Mudville is populated by copyright professors; for the mighty Seventh Circuit has struck out. In Peters v. West (Kanye West, that is, or as LEXIS is now abbreviating the case name, “W.”), the Seventh Circuit, in an opinion written by the highly regarded Judge Wood, has badly bungled the already confused test for establishing a copyright infringement claim. I’ma let you finish, Judge Wood, but Judge Newman had one of the best explanations of this test of all time.

The elements of a prima facie copyright infringement claim have long been confusing to students, lawyers, judges — pretty much everyone. (A brief copyright lesson follows; if this is old hat to you, skip 4 paragraphs down.) Essentially, there are only two elements: ownership and infringement. But the second element is broken down further into a set of sub-elements, and courts have long had difficulty explaining the content and the relationship of the various sub-elements clearly. The basic idea, however, long ago expressed in Second Circuit opinions by Judges Learned Hand and Jerome Frank, is that proving infringement is supposed to be a two-part process: proving that the defendant actually copied material from the plaintiff’s work, and proving that the amount copied passes some sort of threshold for materiality.

There are two significant points of confusion with the test.

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Seventh Circuit Rejects Effort to Extend Padilla Beyond Deportation Context

In Padilla v. Kentucky (2010), the United States Supreme Court held that an attorney renders constitutionally inadequate representation by failing to advise his or her client of the deportation consequences of a guilty plea. Prior to Padilla, many lower courts had adopted a distinction between “direct” and “collateral” consequences of a guilty plea. While defense counsel was required to advise the client of direct consequences (e.g., a potential prison sentence), counsel was not required to warn the client of collateral consequences (which included, in the view of some lower courts, the risk of deportation). Padilla, however, cast doubt on the existence and meaning of a direct/collateral distinction, which immediately raised questions about whether attorneys might be required to advise clients regarding other sorts of consequences that had previously been regarded as collateral.

Earlier today, in United States v. Reeves (No. 11-2328), the Seventh Circuit turned aside an effort to extend Padilla to the risk that a conviction in one case will be used to enhance the defendant’s sentence in a future case.

Here’s what happened. 

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Sentencing and the Limits of Actuarial Risk Assessment

As child molesters go, Cory Reibel seems a relatively low-risk proposition.  He is a first-time offender, was not sexually abused himself as a child, and victimized a girl instead of a boy — studies indicate that all of these factors point to a reduced risk of recidivism.  Yet, he was sentenced to the statutory maximum of 30 years in prison by a judge who wanted to prevent him from offending again.

The judge’s sentence seems to fly in the face of the science of risk assessment.  Actuarial risk assessment (that is, the determination of an offender’s risk based on a statistically sound analysis of recidivism data involving other offenders with similar characteristics) seems to be playing an increasingly prominent role in both pretrial release and post-conviction sentencing decisions.  Scientifically speaking, this is pretty clearly an advance on pure intuition as a basis for predicting risk.  However, actuarial risk assessment does present some important ethical difficulties when it is used as a basis for determining how severe a punishment should be.

These difficulties were on display earlier today when the Seventh Circuit turned aside Reibel’s challenge to the reasonableness of his sentence.  

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