Learned Hand: You’re Reading Him Wrong

Photo of Judge Learned HandPossibly no judge had a greater influence on copyright law in the twentieth century than Learned Hand. Nichols v. Universal Pictures and Peter Pan Fabrics are foundational cases in most textbooks; Sheldon v. MGM and Fred Fisher v. Dillingham used to be. And although he did not write the opinion, Hand was on the panel that decided Arnstein v. Porter.

Part of the reason for Hand’s enduring popularity is that he was a brilliant writer, and his aphorisms about copyright law continue to appeal to a skeptical age. In Nichols, he famously declared with respect to the distinction between uncopyrightable idea and copyrightable expression, “Nobody has ever been able to fix that boundary, and nobody ever can.” In Shipman v. RKO Pictures: “The test is necessarily vague and nothing more definite can be said about it.” In Dellar v. Samuel Goldwyn, Inc., decided per curiam but attributed to Hand: “[T]he issue of fair use … is the most troublesome in the whole law of copyright.” In Peter Pan Fabrics v. Martin Weiner Corp.: “The test for infringement of a copyright is of necessity vague…. In the case of designs, which are addressed to the aesthetic sensibilities of an observer, the test is, if possible, even more intangible.”

To modern ears, these sound like (and are often quoted as) criticisms of copyright law. A vague, ineffable test is an unworkable test, one that offers no guidance to lower courts or juries and is therefore hardly better than no test at all. But to read Hand in this way to read him anachronistically.

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A Simple Wardrobe for a Complex Profession

man in a business suitThis semester in Professor Lisa Mazzie’s Advanced Legal Writing: Writing for Law Practice seminar, students are required to write one blog post on a law- or law school-related topic of their choice. Writing blog posts as a lawyer is a great way to practice writing skills, and to do so in a way that allows the writer a little more freedom to showcase his or her own voice, and—eventually for these students—a great way to maintain visibility as a legal professional. Here is one of those blog posts, this one written by 3L Corey Westfall.

A lawyer wears—what does a lawyer wear? I ask you that question after my roommate professed that “we are going to be lawyers soon, so we should dress like lawyers.”

If the 2017 American Bar Association (“ABA”) annual conference provided an entire session focused solely on fashion, fashion must be a real legal issue! ABA paid for a Brooks Brothers session that provided modeling, lectures, and a pamphlet.

And while Brooks Brothers used that session to advertise their “relatively affordable pieces” (do not be duped; there are more affordable options), Brooks Brothers also provided some useful tips: (1) stick to dark grey and dark blue suits/skirts; and (2) limit shirts to solid blue and solid white, and lightly patterned versions of blue and white. (Number (2) for women may have some slight variations in color, but not much.) Conservative tips, but safe nonetheless.

We law students are joining a profession older than we are, with fashion norms out-aging our already-outdated law school wardrobe!

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Give Attention to Concerns About Privacy Close to Home, Author Suggests

Yes, the furor over data from millions of Facebook users being used for political purposes is important. But just driving down the street raises important privacy issues also. And whether you can make sense of the Facebook issues, you could and probably should give attention to high-tech monitoring of your daily life.

That was the thrust of an “On the Issues with Mike Gousha” program Thursday in Eckstein Hall featuring Cyrus Farivar, author of a new book, Habeas Data: Privacy vs. the Rise of Surveillance Tech. Farivar is also a regular contributor to Ars Technica, which covers news related to technology.

Gousha introduced Farivar by saying that talking about technology and privacy is “a conversation that is perfect for our times.” In the week when great attention focused on Facebook CEO Mark Zuckerberg testifying at length before congressional committees, Farivar agreed.

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