We Interrupt Today's News With An Update From The Monkey Selfie Case

from the it-ain't-over-till-it's-over dept

Fri, Apr 13th 2018 7:39pm — Cathy Gellis

In today's fast-paced news cycle it's easy to overlook the important things: the copyright status of the monkey selfie.

Today we have learned nothing new about it, except that the case is not over yet. Which is itself significant, because the parties in the case had jointly moved to dismiss the appeal, and today that motion was denied. In its order denying the motion [pdf, embedded below] the Ninth Circuit acknowledged that while it had the power to dismiss an appeal if the parties so requested it, it did not have the obligation to do so if there were countervailing interests. And in this case, the Ninth Circuit found, there were countervailing interests requiring it to fully adjudicate the matter.

It cited several other cases as analogs. As in Albers v. Eli Lily, "this case has been fully briefed and argued by both sides, and the court has expended considerable resources to come to a resolution. Denying the motion to dismiss ensures that 'the investment of public resources already devoted to this litigation will have some return.'" Furthermore, as was the case in Ford v. Strickland, "a decision in this developing area of the law would help guide the lower courts."

Also, referencing Albers and Khouzam v. Ashcroft, the court noted that denying the dismissal of appeals prevents the parties from "manipulating precedent in a way that suits their institutional preferences."

As one of our colleagues once warned in a similar context, “courts must be particularly wary of abetting ‘strategic behavior’ on the part of institutional litigants whose continuing interest in the development in the law may transcend their immediate interest in the outcome of a particular case.” Suntharalinkam v. Keisler, 506 F.3d 822, 828 (9th Cir. 2007) (en banc) (Kozinski, J., dissenting from the denial of rehearing).

In other words, enough of this procedural monkey business. The appeal remains a live matter, and at some point the court will presumably substantively rule on it.

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Filed Under: copyright, monkey selfie, ninth circuit

33 Comments

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Anonymous Anonymous Coward (profile), 13 Apr 2018 @ 7:02pm

The monkey wrench in the thought pattern.
The problem with continuing this case in order to be emphatic about the fact that monkeys cannot own property (patents, copyright, trademarks, land, houses, cars, etc.),(and assuming that that is what they want to nail down) is that any result will only be viable in one circuit. It might be quoted in other circuits, but it won't be a precedent.
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- Scote, 13 Apr 2018 @ 7:57pm
  
  Re: The monkey wrench in the thought pattern.
  "It might be quoted in other circuits, but it won't be a precedent."
  
  It will be precedent in the 9th circuit.
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- Anonymous Coward, 13 Apr 2018 @ 9:14pm
  
  Re: The monkey wrench in the thought pattern.
  1. The only way to set precedent across all circuits at once is through a Supreme Court ruling. And with some rare exceptions, that requires getting a circuit ruling first. Outside of the Supreme Court, precedent is set one circuit at a time, in hopefully a mostly uniform manner.
  
  2. Most federal cases die at the district court level (even before a trial), and, for non-9th circuit district courts, although not binding, this is still going to be enormously influential. Note that the 9th circuit's order cited cases from other circuits.
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  - Anonymous Coward, 13 Apr 2018 @ 10:51pm
    
    Re: Re: The monkey wrench in the thought pattern.
    considering that the Supreme Court rejects about 99% of the petitions submitted, that unfortunately gives the district courts ultimate power to decide federal law and constitutionality -- district by district.
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    - Anonymous Coward, 14 Apr 2018 @ 7:30am
      
      Re: Re: Re: The monkey wrench in the thought pattern.
      Which is their entire purpose, is it not?
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Anonymous Coward, 13 Apr 2018 @ 8:11pm

What happens then if nobody shows up to the court date? Isn't that like a war where nobody shows?
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- Anonymous Coward, 13 Apr 2018 @ 8:37pm
  
  Re:
  Anger not Judges, for theirs is the power to hold you in contempt.
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- Cathy Gellis (profile), 13 Apr 2018 @ 10:57pm
  
  Re:
  That's the reason it's not being dismissed: the appeal has already been argued, so there's nothing for anyone to show up to. All that needs to happen is for the court to rule.
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Pixelation, 13 Apr 2018 @ 9:26pm

This case is just bananas!!
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Toom1275 (profile), 13 Apr 2018 @ 9:26pm

Let's just hope nobody patents having a monkey take pictures, or we risk CAFC ignoring all fact and precedent again to proclaim monkeypix are copyrighted.
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- That One Guy (profile), 13 Apr 2018 @ 9:49pm
  
  Re:
  Thing is, while I'd like to laugh at that, I could absolutely see them doing just that.
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- David, 14 Apr 2018 @ 6:31am
  
  Re:
  Then they would be the result of a patented process, not copyrighted. Anyone getting a monkey to take a photograph would still not be entitled to copyright but rather would have to pay licensing fees to the patent holder, until the patent runs out (which would be after a limited time after the patent got granted, the way it once was for copyright and should still be if things were sane).
  
  See how much confusion is caused by throwing all "intellectual property" in one pile under the premise "anybody who got his brain to work at any level should be entitled to have the government secure profits from any positive consequences of engaging his brain". Monkeys are smart enough to profit from the activities of their brains on their own.
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  - Anonymous Coward, 14 Apr 2018 @ 10:09am
    
    Re: Re:
    No, that could be the result of someone adding a patent claim so that the can appeal to the CAFC, and when that is dismissed, the copyright claim is kept under their jurisdiction, just ask Google about how that works.
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That One Guy (profile), 13 Apr 2018 @ 9:48pm

Now apply that elsewhere
As one of our colleagues once warned in a similar context, “courts must be particularly wary of abetting ‘strategic behavior’ on the part of institutional litigants whose continuing interest in the development in the law may transcend their immediate interest in the outcome of a particular case.”

Great point, now if the various courts would take that argument and apply it to the truly malicious and/or willing to abuse the legal system for their own end, that'd be great. Seeing copyright/patent trolls stomped flat for example would do the non-sleazebags a world of good, and it would restore at least some respect people might have towards the legal system if those that blatantly abuse it for personal gain were treated similarly.
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- David, 14 Apr 2018 @ 9:55am
  
  Re: Now apply that elsewhere
  Isn't that why people have immediately filed counter-claims, since they prevents them from dismissing the case as simply?
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  - Anonymous Coward, 16 Apr 2018 @ 9:35am
    
    Re: Re: Now apply that elsewhere
    That is true when only one party wants to dismiss. In this case, both parties moved to dismiss, but the court asserted that the decision on the case is too important to skip.
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Anonymous Coward, 13 Apr 2018 @ 10:22pm

The court likely feels like it lost in a dick measuring competition due to its extended participation in this silliness. It certainly didn't have the balls to dismiss the case from get-go.

I can only assume the eventual ruling will be something along the lines of "You're all stupid and should never do stupid things like this ever gain."
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- Anonymous Coward, 14 Apr 2018 @ 12:21am
  
  Re:
  You can't really blame the appeals court for this silliness. That would be district court; they're the ones who should have laughed it out of the courtroom. The appeals court, after that, really had no choice but to pay attention and try to find a resolution within the law, since the case had already consumed quite a few public resources.
  
  That said, if both parties really want to dismiss, maybe the court should make them both pay fees equal to the amount of money the government has spent dealing with this petty bullshit.
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  - wshuff (profile), 14 Apr 2018 @ 7:27am
    
    Re: Re:
    You can’t really blame the district court either. The district judge booted the case.
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    - Anonymous Coward, 14 Apr 2018 @ 9:34pm
      
      Re: Re: Re:
      Right. There's not really a "you get no appeal" option for the district court, even if the case is ridiculous.
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Anonymous Coward, 14 Apr 2018 @ 5:29am

Hey...where's the embedded PDF, though?
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stine, 14 Apr 2018 @ 9:57am

that quote about precedent
Can you interpret that quote with regards to the Apple vs DoJ case and the Malibu Media vs. Doe, J. case, or the Microsft vs. DoJ case, or any of the Harris Corp Stingray used cases.
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Anonymous Coward, 14 Apr 2018 @ 6:00pm

I honestly thought that PETA had bought a new toothbrush for the monkey.
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- ortho guy, 15 Apr 2018 @ 4:26am
  
  Re:
  or, at least, a thorough scraping...
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peter, 15 Apr 2018 @ 9:40am

Ahhh. If only
Bet the photographer wishes he said that he took the picture.

As, might I add, do we all.
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- That One Guy (profile), 15 Apr 2018 @ 4:41pm
  
  Re: Ahhh. If only
  He did, but only after he realized that 'the monkey took the photo' meant he had no copyright, and therefore no ownership of the picture.
  
  The kicker of course is that if he had started out with 'I took the photo', it would have been utterly unremarkable as far as pictures go. Sure it would have been well taken, but a photo of a monkey? Not like there's any shortage of those. The very thing that made it impressive(a photo taken by a monkey) also left him with no ownership rights once the photo was public(though he could have still used it for attention and money, had he not been a short-sighted fool about it.)
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  - Wendy Cockcroft, 16 Apr 2018 @ 6:01am
    
    Re: Re: Ahhh. If only
    It's his inability to get the £ signs out of his eyes that's the problem. He sees copyright as a fountain of money flowing deep and wide and fought a bloody-minded battle over his right to his share of it on principle. I know many people like this here in Britain: "It's the principle of the thing!" they shout from foam-flecked mouths — usually about Brexit.
    
    A smarter person would have rode on a wave of "The monkey took a picture with my camera" and lived off the notoriety. As it is, Slater got bogged down in self-pity and misplaced rage and paid heavily for his hubris.
    
    I feel sorry for him since he honestly believed that copyright was a ticket to automatic financial gain. Unfortunately it is not.
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    - Anonymous Coward, 16 Apr 2018 @ 9:38am
      
      Re: Re: Re: Ahhh. If only
      Exactly. His interview on This American Life makes him sound like he expected to collect some kind of Internet jackpot.
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      - Wendy Cockcroft, 17 Apr 2018 @ 2:38am
        
        Re: Re: Re: Re: Ahhh. If only
        One presumes it's because copyright is presented as a potential jackpot. It's not, people.
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    - That One Guy (profile), 17 Apr 2018 @ 5:14am
      
      Re: Re: Re: Ahhh. If only
      I feel sorry for him since he honestly believed that copyright was a ticket to automatic financial gain. Unfortunately it is not.
      
      I would have felt sorry for him if he hadn't gone legal and been dishonest. As soon as be brought the lawyers into it and tried to force reality to conform to what he thought should happen, I lost all sympathy.
      
      When he changed his story to something that was more beneficial to himself, such that he was either lying the first go around or lying the second, I lost all sympathy.
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Carrie (profile), 16 Apr 2018 @ 11:00am

Is this signalling that we're going to get a precedential opinion ... LIMITING copyright?!
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btr1701 (profile), 16 Apr 2018 @ 12:06pm

Moot
> The Ninth Circuit acknowledged that while it had the
> power to dismiss an appeal if the parties so requested
> it, it did not have the obligation to do so if there were
> countervailing interests.

I'm trying to figure out how this works if both parties want to just walk away. If no one submits briefs and no one shows up to oral arguments, what does the court have to rule on?
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- The Wanderer (profile), 16 Apr 2018 @ 8:08pm
  
  Re: Moot
  If I understand matters correctly, all such have already been submitted and argued, and no further input from the parties is needed; the only thing left is for the court to rule.
  
  Trying to withdraw at that point, even if both parties agree, seems a bit... questionable; at best, it would seem to represent a waste of the court system's resources.
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