Learning Copyright
Oh, No!! He’s On That Soapbox Again…
Actually, I never get off of it. The only way writers make any money is understanding copyright and trademark and branding and if you don’t understand copyright and trademark and branding and constantly stay aware of it, you will make huge, huge mistakes.
So this week there was a copyright case spit out by the bought-and-paid-for Supreme Court of this country. It was flat weird. And no chance do I pretend to understand the procedure they used or even why.
But let me be so basic here and that my copyright expert friends are going to shake their heads. In essence, what the Supremes said, dealing with international copyright law, which damned if I know how they can do that, that when you get a rights reversion, it applies in all countries. Something about splitting the baby.
And how they said this leaves about fifty thousand cases open to go up to them and actually have them make some ruling on this that might pretend to be more standard than this mess.
Why is this even slightly important to all of you? Because in this wonderful new world we live it, territories do not exist and copyright protects your work around the world. Do you even know how??????, Or you just go ahead and toss your work onto D2D and flip all the tabs to get your story out to all over the world. Same with Amazon, Kobo, B&N, and so on, without having a clue how your work is copyright protected in those other countries.
So this very strange copyright case this week dealt with international agreements and conventions for one very strange part of our copyright law. In the years to come, it might or might not be impactful. But if you didn’t follow it or even try to understand it, you will never know. And honestly, that is just bad business.
2 Comments
C.E. Petit
As one of the copyright friends (with friends like me…) and a civil procedure nerd on the side, I have a couple of quibbles with the general description of what happened — not just Dean’s, but general coverage — and a couple theoretical comments to go with it showing just how messy this was going to be.
• It’s not technically correct to say “upheld.” What actually happened was that several justices had book contracts with one of the (corporate-umbrella) parties, so they quite properly recused themselves (compare 28 U.S.C. § 455, which although not binding on the Supreme Court explains the consensus consideration). In fact, so many of them recused that there would not have been a quorum of the Court, meaning that it could not in fact hear the case. So it didn’t; and the effect of “not being able to hear the case because we’re conflicted out” is not to affirm the decision below, but to leave it undisturbed with only the precedential value and binding effect of any other Court of Appeals decision.
So what does that mean? That for this particular dispute and set of facts — which are quite tangled and readily distinguishable in just about any other later case — the transfers are terminated with worldwide effect. Bluntly, the problem here was a combination of less-than-optimal lawyering (including on the various court staffs!), some bizarre circumstances made relevant only by industry-customary abusive and overreaching conduct that come close to constituting “unclean hands” in the first place, and an unusual procedural context. Nobody should take this resolution as providing much, if any, guidance for any other/future circumstance (and, indeed, that’s exactly what the Supreme Court’s specific disposition means, in obfuscatory lawyerly language).
• It’s also not technically correct to say this is purely a copyright matter. This particular provision in the Copyright Act — § 203 for transfers taking place after 01 Jan 1978, § 304 for transfer taking place before that, and note that it’s the date of the transfer and not the date of the copyright that matters — does not define or enforce a copyright right; it operates on contracts. And that means that the contract law of multiple jurisdictions is always going to be involved, especially when there are the usual international-tax-avoidance shenanigans going on in the actual exploitations. Why? Because there’s a difference among “void,” “voidable,” “efficiently breached,” and “terminated” contracts — a transfer of less than the entire copyright is merely a licensing contract! — and how courts in jurisdiction X that did not hear a matter will treat a determination in jurisdiction Y concerning that contract.†
It would have been better in the abstract for Congress to merely declare that transfers are limited to a period of x years regardless of any statement of a longer term, but that would have constitutional problems of its own (the “impairment of contracts” clause).
• But taking a step backward, looking at the “big picture,” this is also a problem with decades of various failures to enforce antitrust law — including binding Supreme Court precedent — that led to this particular ecosystem and its customs in the first place. Keep in mind that “intellectual property” is a monopoly granted as an exception to more-general antimonopoly (antitrust) law, and that as an exception it’s supposed to be understood narrowly. There’s nothing narrow about publishers’ exploitation of that “exception,” whether publishing text or anything else, and that specifically includes contracting practices that in any other industry would be struck down as anticompetitive. (Specific example: How did “25% of net” become the virtually-nonnegotiable compensation accorded commercially-published authors for electronic editions of trade books?)
• • •
If you’re not confused yet, you’re not trying hard enough. The real point is that Monday’s order denying review in BMG Rights Mgt. v. Vetter, No. 25–1391 is, in essence, limited to that case alone, and tells us little or nothing about any other set of circumstances. (Indeed, since the Court of Appeals decision was issued below, there’s been… umm… considerable controversy over what guidance it offers, even aside from any criticism of its “correctness.”)
† In this particular instance, I invite the “winner” to try to enforce the result in the UK… because there’s conflicting precedent, which weighs against blind enforcement without further hearing.
dwsmith
Thanks, CE. Really appreciate the time on this.