Copyright’s Substantial Confusion

A few weeks ago the 9th Circuit issued its decision in the long-awaited “Blurred Lines” case, Williams v. Gaye, and the reaction has generally ranged between dismay and anger. Here is a quick summary of the decision. The consensus among copyright lawyers, with some exceptions, appears to be that the original jury verdict against Pharrell Williams and Robin Thicke threatens to make musical styles copyrightable, that the majority on appeal got the law wrong, and that the dissent is correct that the jury verdict should have been reversed.

I disagree with some of that, but I want to take this post in a different direction. I’ve been doing a lot of thinking and reading lately about the development of the test for copyright infringement over the course of the 20th century. Williams v. Gaye is, I believe, merely the predictable outcome of the 9th Circuit’s approach to proving copyright infringement, an approach that copyright scholars have been complaining about for a long time. But it’s worse than that. As Rick Sanders spelled out in a recent post, all of the modern tests for proving infringement by copying are deeply problematic. What is particularly intriguing with the Williams case is that the approach the dissent seems to be recommending actually pre-dates the modern caselaw. It’s the one that the modern test — first spelled out in detail by the Second Circuit in Arnstein v. Porter — was designed to replace. Look at the cases the dissenter, Judge Nguyen, cites—many of them were decided before Arnstein. And although I agree with the Williams majority’s assessment of the lack of support for the dissent’s argument, I think it’s no accident it has resurfaced.

A warning for non-IP-interested readers: this is going to be a long, hard slog through the weeds of copyright law, maybe several long hard slogs. I also have some things to say along the way about the development of the law generally over the last hundred years. But consider yourself warned. 

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Welcome to the Line

Recently, the Federal Communications Commission (FCC) took up and reversed net neutrality.  If you are unfamiliar with net neutrality, it is the principle that Internet Service Providers (ISPs) are not allowed to discriminate against certain users, websites, content, or whatever else.  For example, Spectrum (formerly Time Warner) is not allowed to block its users from or charge them for accessing Facebook.  Or, for a real-life example, Madison River Communications was fined $15,000 by the FCC for restricting their costumers’ access to a rival service. John Oliver explains net neutrality here. (Language warning.)  In a way, you could think of net neutrality as an equal opportunity law for the internet.  Or, at least you could have.  On December 14, 2017, FCC chairman Ajit Pai and the FCC voted to repeal net neutrality, which leaves the internet in the United States in a fairly bad spot.

Luckily, in my opinion, the FCC has a gauntlet of lawsuits to go through now that it repealed net neutrality.  It also seems there is a fair number of people who share my viewpoint.  As it stands, the FCC had something around 22 million complaints filed against its ruling.  FCC Chairman Pai canceled his scheduled appearance at the to the Consumer Electronics Show in Las Vegas due to death threats.  On top of this, the Internet Association is bringing together powerhouse companies to join the fight against the unpopular ruling.  Companies like Google, Amazon, Etsy, and Alphabet have stated they are joining the lawsuit.  The Internet Association’s President and CEO Michael Beckerman stated, “The final version of Chairman Pai’s rule . . . dismantles popular net neutrality protections for consumers.  This rule defies the will of a bipartisan majority of Americans and fails to preserve a free and open internet.”    Netflix even took to Twitter and sent the message, “In 2018, the Internet is united in defense of #NetNeutrality.  As for the FCC, we will see you in court.”  Furthermore, a number of states have come forward stating their opposition to the repeal and have indicated that they, too, will join the fight.

Seeing this net neutrality issue unfold has solidified my choice to attend law school. 

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The Myth About Practicing IP

I was recently visiting a relative in the hospital when the attending physician struck up a conversation with my family.  When he found out that I am an attorney, he asked about my area of practice.  I told him that I practice product liability defense and intellectual property litigation.  He then asked me the following question, a variation of which has been posed to me dozens of times over the past five years:  “What type of engineer are you?”

I am an English major, and I practice IP litigation.  Not only do I not have a science background, but I made a concerted effort to avoid science classes in college.  Law schools precipitate a myth that you can’t practice IP without a science background.  It’s a myth because it’s not true.  I’m proof.  (Disclaimer:  it is true that you can’t prosecute patents before the U.S. Patent and Trademark Office without a science background.  But patent prosecution is only one part of IP.)

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