While I normally disfavor broad application of copyright, I'm willing to flip given that a US Senator is directly involved. If the rest of us have to put up with the twisted results the current copyright regime causes, I'm happy to that he gets to "enjoy" them too.
I hold a faint hope that if actual lawmakers directly feel the impact of the current copyright regime, then maybe we'll see some reform.
"Juries nowadays decide only a tiny fraction of all civil and criminal cases, under tight government constraints."
If the case doesn't get tossed, then this is by choice of the parties. If you are entitled to a jury trial, you are free to insist that you receive one, and the government can't prevent it. For a case to plead out or settle, all of the parties must agree. If you're a criminal defendant and really want a jury, then don't plead guilty. If you're a civil party and really want a jury, then don't settle. Trials and trials by juries are unpredictable (and costly), and mutual agreements can reduce the uncertainty and cost involved for all parties.
More generally, in the US, juries are there to resolve questions of fact, not questions of law. Purely legal issues are resolved the judge.
In federal civil cases, the judge can rule for one of the parties before or after a jury decision if, viewing evidence in light most favorable to the non-moving party, no reasonable jury could find for that non-moving party.
Rule 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling
(a) Judgment as a Matter of Law.
(1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. https://www.law.cornell.edu/rules/frcp/rule_50
Rule 50(a) is for before the case is sent to the jury; 50(b) is for renewing the motion after the jury decision.
The idea is that sometimes the evidence is so strong for one side, that the jury would have to be or had been completely unreasonable to find for the other side. It's to check against unreasonable decisions by jurors; for example, suppose there were email in which the NYT editors wrote about lying to discredit Palin, but because the jurors all hate Palin, they found for NYT.
Regarding "proximate result", this probably doesn't refer to an indirect result but rather the legal concept of proximate cause. See https://en.wikipedia.org/wiki/Proximate_cause Proximate cause is basically a legally recognized cause of an event, as opposed to a "but for" cause.
But for Starbucks taking 10 minutes to make my coffee, I would not have missed the train, so I would not have taken an Uber, so I would not have been in the car crash. So Starbucks' actions were a but for cause of my injuries, but not a proximate cause.
The claim in the matter is that Instagram and Snapchat's actions/inactions/policies are legally recognized causes of the suicide.
That's conflating two issues- if the Florida statute is invalid due to preemption by the CDA or due to the First Amendment. Those are independent questions.
The supremacy clause would mean that § 230 (if valid) preempts any conflicting portions of the Florida statute. If, as Florida might argue, § 230 is unconstitutional (or otherwise invalid), then it obviously can't preempt the Florida statute.
Separate from § 230 preemption is whether the Florida statute violates the First Amendment. The First Amendment directly applies to the States through incorporation of the bill of rights against the States (see https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights) not the supremacy clause.
Even if § 230 were invalid, the Florida statute would still have to conform to the First Amendment, for which there is no States rights issue- long established SCOTUS rulings indicate that the First Amendment applies directly to the States.
On top of that, it's hard to argue that either there is a legitimate copyright here or that if there were one, that the court itself could claim it. The speech was by Britney Spears, not the court. On top of that -- even with the prohibition on recording -- in the copyright context, there would be a strong fair use defense.
This conflates two copyrights at issue. Spears probably owns any copyright to the the text of her speech, I'd guess as a literary work. Any copyright to the sound recording, which is a distinct copyright, could be conceivably be owned by the city/state- certainly not Spears. It's similar to the dual composition-sound recording copyrights in musical recordings.
So while Spears probably could authorize distribution and copying of transcripts of her speech, a copy of the actual audio distributed by the city is another matter.
I agree that fair use would probably protect anyone from copyright liability. And it's an interesting question if the court proceeding could be copyrighted at all. Court opinions and state statutes are not copyrightable, see https://en.wikipedia.org/wiki/Georgia_v._Public.Resource.Org,_Inc.
How the relevant market is defined will be very important to the case. Apple will push to define a broad market (e.g., all gaming across all platforms) while Epic will advance a more narrow definition (e.g., shooters on mobile).
If this goes to trial, how the judge decides what the market is will significantly impact the analysis of competition.
Here's the call info to listen. July 21, 11 AM (probably Central) Source
ORDER SETTING HEARING ON MOTION: A hearing on the Motion for Attorney Fees (Doc. 10 ) is set for July 21, 2020 at 11:00 a.m. via video conference before Judge Staci M. Yandle. Information regarding the video conference will be sent by email to all parties. Full access to this hearing is available remotely. Instructions for non-participants to join the hearing are as follows: Call toll free 877-873-8017, when prompted enter Access Code 4354777. In light of the public health crisis due to the COVID-19 virus, the Court finds that full access to the press and public cannot be afforded for this hearing. Other alternatives to closure were considered, but at this time the Court only has the technological capability to allow access by teleconference. Plaintiff Glen Craig is ORDERED to appear at the hearing.
There is a circuit split on when the three year clock starts ticking: at the moment of infringement ("injury rule") or at the moment of discovery (or should have discovered) ("discovery rule").
New Mexico (current venue) is in the 10th circuit, which follows the discovery rule. See Diversey v. Schmidly So the date of publication isn't controlling.
The complaint does refer to the copyright infringement by the Enola Holmes books (paragraph 58), in addition to other works. So perhaps they'll claim that they only recently discovered the book series?
Or the estate just being overly broad trying to implicate the film. The film is a derivative work of the books, so if the books were infringing, the film almost certainly would be too; theoretically the film could avoid reproducing any infringing elements in the books and only be based on the public domain elements, but probably can't do that as a practical matter.
The complaint contains this line: "For those of the stories whose copyright terms have ended, this action is brought within the three-year limitations period for infringement."
So the claim is there are 10 works (stories) that were infringed when they were under copyright. That copyright has since expired on 4 works doesn't matter so long as the alleged infringement on those works took place when the copyright was active and the statute of limitations period hasn't run out.
I didn't see the dates the Enola Holmes books were written, but it could have been before the copyright expired.
I'm not sure how the Netflix development would infringe on the expired copyrights though- if the script development or filming occurred before the copyrights expired, that arguably could infringe the copyright, but that's quite a different case than saying the final product (the fully produced show) infringes.
Just because someone hates Trump doesn't mean that the arguments are incorrect.
An NDA is a contract. Contracts can bind the parties (and potentially their agents and successors in interest) but not third parties. S&S and bookstores aren't bound by the NDA- maybe S&S could be liable for tortious interference with a contract (i.e., the NDA). If S&S is an agent of Ms. Trump, then they'd be restricted by that agency, but I'm skeptical this will be shown.
Prior restraint is strongly disfavored in American jurisprudence. In the Pentagon Papers case, the court allowed the publication of classified documents, while acknowledging the national security risks. So there is a high bar required for prior restraint, and a tell-all book probably won't meet that.
In spite of the fact that our tax dollars support police functions, it is settled that the rules concerning the duty -- or lack thereof -- to come to the aid of another are applicable to law enforcement personnel in carrying out routine traffic investigations. Thus, the state highway patrol has the right, but not the duty, to investigate accidents or to come to the aid of stranded motorists.... Recovery has been denied, however, for injuries caused by the failure of police personnel to respond to requests for assistance, the failure to investigate properly, or the failure to investigate at all, where the police had not induced reliance on a promise, express or implied, that they would provide protection. Williams v. State of California (1983)
[T]he critical question the Court analyzes is whether [school and police] had a constitutional duty to protect Plaintiffs from the actions of [school shooter]. As previously stated, for such a duty to exist on the part of [school and police], Plaintiffs would have to be considered to be in custody. L.S. v. Peterson, lawsuit from Parkland school shooting
I don't know if the result would have followed under the theory that it was part of the law. The text at issue are annotations to the code and do not carry any official weight in terms of law. While there is persuasive authority, the "official" annotations from LexisNexis are no more binding on the courts or citizens than annotations posted on some legal blog.
If the annotations are not part of the law, then they would fall outside the "law must be public domain" rule, and PRO would be in trouble.
That doesn't follow the appellate court's rationale.
The court ruled that the OCGA was uncopyrightable- not that the State or Lexis had a copyright but posting the annotations was fair use.
An analysis of these factors yields the conclusion that the annotations in the OCGA, while not having the force of law, are part and parcel of the law. They are so enmeshed with Georgia’s law as to be inextricable. The annotations are themselves law-like insofar as we examine who made them, how they were made,
and the role they play in the legislative and jurisprudential spheres of Georgia’s public life. In consequence, they too represent a work, like the statutes themselves, that is constructively authored by the People. They are therefore uncopyrightable.
The reasoning was that the State was sponsoring and directing the development of the annotations, so that the author of the annotations was "the people" rather than Lexis.
If the annotations were developed solely by a private entity (e.g., Lexis or West), I'm confident that they'd be copyrightable. But in this case, they were considered authored by the public (through the State), so there is no copyright.
People and entities are not solely subject to the jurisdiction of their resident state (e.g., I travel out of state and get into a car accident), and the plaintiffs can choose to file in whatever they think will be the most favorable venue- one strategic advantage.
Some (or all) of the plaintiff corporations have their principal place of business in WV. HBO (and Oliver's show) has systematic and continuous contact with WV. I don't think there's a jurisdiction issue for WV courts.
You're conflating jurisdiction and venue. Jurisdiction is about authority; venue is about geography.
For the federal courts to accept the case, they need to have jurisdiction- does the court have authority to hear the case. HBO's claim was that the federal courts have jurisdiction due to diversity of the parties- that the plaintiffs resided in different states from the defendants. The diversity analysis doesn't depend on the a location of the court making the determination- the analysis for a court in Delaware, or WV (or AZ, or TX, etc.) would be the same. In theory, all of the district courts across the US have jurisdiction or none of them do (in practice, different courts could reason and rule differently of course).
Venue is a matter of whether, geographically, the court is the best to hold the case (and if the court doesn't have jurisdiction, then venue is irrelevant). Venue has various rules, and I don't think HBO challenged venue. A court can have jurisdiction but not be the proper venue (e.g., if the parties were diverse and HBO tried to remove this case to a federal court in NM).
Ali doesn't have to prove the story was accurate; Bolling needs to show (among other things) that Ali wrote the story "with knowledge that it was false or with reckless disregard of whether it was false or not."
It's a pretty high standard in order to shield reporting on matters of public interest.
There is no such thing as a court preservation letter. This was a letter from one party's attorney to someone likely to receive a subpoena in the near future. It's not an order to preserve or produce, and the recipient may not actually have a duty to preserve, despite the letter.
A subpoena is a sufficient but not necessary condition to trigger a preservation obligation. Do you think I should be able to shred or delete unfavorable docs just before suing you? Or do you think it's equitable that I be required to preserve docs relevant to the impending litigation (that I'm about to trigger), even though I haven't been subpoenaed?
An obligation to produce without an obligation to preserve would just encourage parties to race to destroy unfavorable evidence before they receive a subpoena.
This didn't involve a service of a faulty subpoena; it involved a preservation notice letter with a draft of an unserved subpoena.
The goal of the letter was really to trigger a preservation obligation on Johnson. People have an obligation to preserve evidence under some circumstances, so the idea is to put Johnson on notice that he shouldn't destroy anything that may be subject to a pending subpoena- whether or not he actually has an obligation to preserve (even with notice) is a different matter.
Non-parties (such as Johnson) can still be subpoenaed for discovery, albeit under rule 34(c) instead of 34(a). Here's 34(c):
As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection.
Here's rule 45(c)(2):
(2) For Other Discovery. A subpoena may command:
(A) production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person; and
(B) inspection of premises at the premises to be inspected.
Non-parties are not immune from discovery. Courts are more lenient about undue burden for non-parties since they're essentially by-standers to the litigation, but if a non-party has relevant information, they're potentially fair game for discovery.
Note the distance threshold in in 45(c)(2)(A) triggers when the person is more than 100 miles away from the place at which the evidence is to be produced. If the subpoena demands production within 100 miles of Johnson, he won't be able to object on grounds of distance.
what's good for the goose
While I normally disfavor broad application of copyright, I'm willing to flip given that a US Senator is directly involved. If the rest of us have to put up with the twisted results the current copyright regime causes, I'm happy to that he gets to "enjoy" them too.
I hold a faint hope that if actual lawmakers directly feel the impact of the current copyright regime, then maybe we'll see some reform.
Re: Re:
"Juries nowadays decide only a tiny fraction of all civil and criminal cases, under tight government constraints."
If the case doesn't get tossed, then this is by choice of the parties. If you are entitled to a jury trial, you are free to insist that you receive one, and the government can't prevent it. For a case to plead out or settle, all of the parties must agree. If you're a criminal defendant and really want a jury, then don't plead guilty. If you're a civil party and really want a jury, then don't settle. Trials and trials by juries are unpredictable (and costly), and mutual agreements can reduce the uncertainty and cost involved for all parties.
More generally, in the US, juries are there to resolve questions of fact, not questions of law. Purely legal issues are resolved the judge.
In federal civil cases, the judge can rule for one of the parties before or after a jury decision if, viewing evidence in light most favorable to the non-moving party, no reasonable jury could find for that non-moving party.
Rule 50(a) is for before the case is sent to the jury; 50(b) is for renewing the motion after the jury decision.
The idea is that sometimes the evidence is so strong for one side, that the jury would have to be or had been completely unreasonable to find for the other side. It's to check against unreasonable decisions by jurors; for example, suppose there were email in which the NYT editors wrote about lying to discredit Palin, but because the jurors all hate Palin, they found for NYT.
proximate result
Regarding "proximate result", this probably doesn't refer to an indirect result but rather the legal concept of proximate cause. See https://en.wikipedia.org/wiki/Proximate_cause Proximate cause is basically a legally recognized cause of an event, as opposed to a "but for" cause.
But for Starbucks taking 10 minutes to make my coffee, I would not have missed the train, so I would not have taken an Uber, so I would not have been in the car crash. So Starbucks' actions were a but for cause of my injuries, but not a proximate cause.
The claim in the matter is that Instagram and Snapchat's actions/inactions/policies are legally recognized causes of the suicide.
Re: Re: Re:
That's conflating two issues- if the Florida statute is invalid due to preemption by the CDA or due to the First Amendment. Those are independent questions.
The supremacy clause would mean that § 230 (if valid) preempts any conflicting portions of the Florida statute. If, as Florida might argue, § 230 is unconstitutional (or otherwise invalid), then it obviously can't preempt the Florida statute.
Separate from § 230 preemption is whether the Florida statute violates the First Amendment. The First Amendment directly applies to the States through incorporation of the bill of rights against the States (see https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights) not the supremacy clause.
Even if § 230 were invalid, the Florida statute would still have to conform to the First Amendment, for which there is no States rights issue- long established SCOTUS rulings indicate that the First Amendment applies directly to the States.
(untitled comment)
This conflates two copyrights at issue. Spears probably owns any copyright to the the text of her speech, I'd guess as a literary work. Any copyright to the sound recording, which is a distinct copyright, could be conceivably be owned by the city/state- certainly not Spears. It's similar to the dual composition-sound recording copyrights in musical recordings.
So while Spears probably could authorize distribution and copying of transcripts of her speech, a copy of the actual audio distributed by the city is another matter.
I agree that fair use would probably protect anyone from copyright liability. And it's an interesting question if the court proceeding could be copyrighted at all. Court opinions and state statutes are not copyrightable, see https://en.wikipedia.org/wiki/Georgia_v._Public.Resource.Org,_Inc.
Re: Re: Antitrust? How many platforms is Fortnight available on?
How the relevant market is defined will be very important to the case. Apple will push to define a broad market (e.g., all gaming across all platforms) while Epic will advance a more narrow definition (e.g., shooters on mobile).
If this goes to trial, how the judge decides what the market is will significantly impact the analysis of competition.
Call info
Here's the call info to listen. July 21, 11 AM (probably Central) Source
Re: 10+ years ago
There is a circuit split on when the three year clock starts ticking: at the moment of infringement ("injury rule") or at the moment of discovery (or should have discovered) ("discovery rule").
New Mexico (current venue) is in the 10th circuit, which follows the discovery rule. See Diversey v. Schmidly So the date of publication isn't controlling.
The complaint does refer to the copyright infringement by the Enola Holmes books (paragraph 58), in addition to other works. So perhaps they'll claim that they only recently discovered the book series?
Or the estate just being overly broad trying to implicate the film. The film is a derivative work of the books, so if the books were infringing, the film almost certainly would be too; theoretically the film could avoid reproducing any infringing elements in the books and only be based on the public domain elements, but probably can't do that as a practical matter.
Re:
The complaint contains this line: "For those of the stories whose copyright terms have ended, this action is brought within the three-year limitations period for infringement."
So the claim is there are 10 works (stories) that were infringed when they were under copyright. That copyright has since expired on 4 works doesn't matter so long as the alleged infringement on those works took place when the copyright was active and the statute of limitations period hasn't run out.
I didn't see the dates the Enola Holmes books were written, but it could have been before the copyright expired.
I'm not sure how the Netflix development would infringe on the expired copyrights though- if the script development or filming occurred before the copyrights expired, that arguably could infringe the copyright, but that's quite a different case than saying the final product (the fully produced show) infringes.
Re: Why the brother?
Non-parties can be subpoenaed, at least in federal court. See Rule 45.
But courts are generally more favorable to non-parties in terms of relevancy and burden arguments in squashing subpoenas.
Re: Re: Clariity
Just because someone hates Trump doesn't mean that the arguments are incorrect.
An NDA is a contract. Contracts can bind the parties (and potentially their agents and successors in interest) but not third parties. S&S and bookstores aren't bound by the NDA- maybe S&S could be liable for tortious interference with a contract (i.e., the NDA). If S&S is an agent of Ms. Trump, then they'd be restricted by that agency, but I'm skeptical this will be shown.
Prior restraint is strongly disfavored in American jurisprudence. In the Pentagon Papers case, the court allowed the publication of classified documents, while acknowledging the national security risks. So there is a high bar required for prior restraint, and a tell-all book probably won't meet that.
Re: Re: Re: Re: Re: Re: Re: 'Camera is off = You're not a cop'
There's no duty for police to rescue or assist a member of the general public.
Re: The ``Authorship'' Route
I don't know if the result would have followed under the theory that it was part of the law. The text at issue are annotations to the code and do not carry any official weight in terms of law. While there is persuasive authority, the "official" annotations from LexisNexis are no more binding on the courts or citizens than annotations posted on some legal blog.
If the annotations are not part of the law, then they would fall outside the "law must be public domain" rule, and PRO would be in trouble.
Re: Re: I have no problems with annotated laws being copyrighted
Typo: "not that the State or Lexis had a copyright <del>but</del> or posting the annotations was fair use"
Re: I have no problems with annotated laws being copyrighted
That doesn't follow the appellate court's rationale.
The court ruled that the OCGA was uncopyrightable- not that the State or Lexis had a copyright but posting the annotations was fair use.
The reasoning was that the State was sponsoring and directing the development of the annotations, so that the author of the annotations was "the people" rather than Lexis.
If the annotations were developed solely by a private entity (e.g., Lexis or West), I'm confident that they'd be copyrightable. But in this case, they were considered authored by the public (through the State), so there is no copyright.
Re:
Some (or all) of the plaintiff corporations have their principal place of business in WV. HBO (and Oliver's show) has systematic and continuous contact with WV. I don't think there's a jurisdiction issue for WV courts.
Re: Re: Re: West Virginia =/= New York
For the federal courts to accept the case, they need to have jurisdiction- does the court have authority to hear the case. HBO's claim was that the federal courts have jurisdiction due to diversity of the parties- that the plaintiffs resided in different states from the defendants. The diversity analysis doesn't depend on the a location of the court making the determination- the analysis for a court in Delaware, or WV (or AZ, or TX, etc.) would be the same. In theory, all of the district courts across the US have jurisdiction or none of them do (in practice, different courts could reason and rule differently of course).
Venue is a matter of whether, geographically, the court is the best to hold the case (and if the court doesn't have jurisdiction, then venue is irrelevant). Venue has various rules, and I don't think HBO challenged venue. A court can have jurisdiction but not be the proper venue (e.g., if the parties were diverse and HBO tried to remove this case to a federal court in NM).
Re: Re: Re:
https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan
Ali doesn't have to prove the story was accurate; Bolling needs to show (among other things) that Ali wrote the story "with knowledge that it was false or with reckless disregard of whether it was false or not."
It's a pretty high standard in order to shield reporting on matters of public interest.
Re: electronic discovery rules
There is no such thing as a court preservation letter. This was a letter from one party's attorney to someone likely to receive a subpoena in the near future. It's not an order to preserve or produce, and the recipient may not actually have a duty to preserve, despite the letter.
A subpoena is a sufficient but not necessary condition to trigger a preservation obligation. Do you think I should be able to shred or delete unfavorable docs just before suing you? Or do you think it's equitable that I be required to preserve docs relevant to the impending litigation (that I'm about to trigger), even though I haven't been subpoenaed?
An obligation to produce without an obligation to preserve would just encourage parties to race to destroy unfavorable evidence before they receive a subpoena.
electronic discovery rules
This didn't involve a service of a faulty subpoena; it involved a preservation notice letter with a draft of an unserved subpoena.
The goal of the letter was really to trigger a preservation obligation on Johnson. People have an obligation to preserve evidence under some circumstances, so the idea is to put Johnson on notice that he shouldn't destroy anything that may be subject to a pending subpoena- whether or not he actually has an obligation to preserve (even with notice) is a different matter.
Here's rule 45(c)(2):
Non-parties are not immune from discovery. Courts are more lenient about undue burden for non-parties since they're essentially by-standers to the litigation, but if a non-party has relevant information, they're potentially fair game for discovery.
Note the distance threshold in in 45(c)(2)(A) triggers when the person is more than 100 miles away from the place at which the evidence is to be produced. If the subpoena demands production within 100 miles of Johnson, he won't be able to object on grounds of distance.
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