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| Det Kongelige Bibliotek, Copenhagen |
REV. 3/12/2013
After some considerable number of pages, I have come to the conclusion that to focus on the Chin Ruling was probably a mistake. Rulings are seductive; they are awaited, eagerly awaited, and after they have been published the temptation is to do a post-game analysis, the analysis of a lost game in this case. The denial of the settlement has to be dealt with - writing does that in intellectual space - and a commentary on the ruling is a good a place as any to start. Yet in the case of Judge Chin's ruling, there is not enough meat on the bones: lots of plausible statements, some hint of spin toward the plaintiff and a puzzling amount of "concern."Yet I find I am drawn toward more substantial treatments of the subject than one can expect from a minimalist technical ruling. My insight to this date is that I am very unhappy that Judge Chin has not gone against the flow and found some consideration other than property as the primary consideration. He has "concerns" - "concerns" that are all over the court of public opinion. They are taken verbatim from Google opponents who have not been able to match Google's enterprise. I find his reliance on Rule 23(b) to be too transparent for a non-lawyer - a settlement with an opt out cannot lead to unwelcome "future acts." Lawyers, of course, would stand at attention if Rule 23 were carried past. An opt out is a safe exit for any ongoing deal pertaining to some item with exclusive rights pending. By opting out those rights can be reestablished today, tomorrow or in six years. That seems obvious to the non-lawyer. Rule 23(b) may be a good rule in general, in this case it is a lame excuse. There may be some symmetry in litigation about items related down the semantic tree, but I don't see the beauty nor the necessity. Of course it is important for judges to move cases along. In this case, the judge chose to stay technical, avoid the larger perspective, and issue 48 really uninteresting half-pages of text. It is a slender reed, bending with the wind.
The ruling has power, the parties have to take it seriously. The ruling has importance in that it puts an electronic library of fantastic dimensions on hold - this is not about Beanie Babies. I suspect people will read the short pages in the future and wonder about the arguments and the strange examples cited and they will wonder at the central role of Rule 23(b).
I think of this case as quite rare - a once in a lifetime case - a case with a historical dimension. In my personal world, 14 life terms for an embezzler vs 12 million electronic books is no contest. Both cases are huge: never has more money been embezzled in the history of humanity - never have more books been made available to the whole world. In the court of public opinion, the embezzler is the big star, the 12 million library books are cause for concern.
The few of us not glued to the loops of the news cycle are entitled to roll our eyes and exhibit frustration. Things have gotten complicated in the area of intellectual property. Things were easier when Carnegie was establishing libraries - some 2,500 - in the US, Canada and the UK - but there were those who could not get past the strikes and that his wealth was created through the exploitation of workers and refused a library. Google is redoing the work of Andrew Carnegie. Carnegie spent between 10,000 and 50,000 dollars per library according to a specific formula. Of course Google's investment of 100,000 million adjusted for dollar value of 1900 is a pittance compared to Carnegie's lifetime philanthropy of 350 million. Yet for library books, the focused work of Google will complete the work of Carnegie and get library books to all corners of the world. In a larger sense Google is already getting information to all corners of the world, obviating libraries for many research questions. Thus I propose to hit the reset button and focus on property if that is all the courts know.
Property.
To enliven the discussion, I prefix the entry "property" and its hyponyms from "Wordnet."
"(n) property, belongings, holding (something owned; any tangible or intangible possession that is owned by someone) "that hat is my property"; "he is a man of property"
(n) tangible possession, material possession (property or belongings that are tangible)
(n) worldly possessions, worldly belongings, worldly goods (all the property that someone possesses) "he left all his worldly possessions to his daughter"
(n) ratables, rateables (property that provides tax income for local governments)
(n) hereditament (any property (real or personal or mixed) that can be inherited)
(n) intellectual property (intangible property that is the result of creativity (such as patents or trademarks or copyrights))
(n) community property (property and income belonging jointly to a married couple)
(n) personal property, personal estate, personalty, private property (movable property (as distinguished from real estate))
(n) things (any movable possession (especially articles of clothing)) "she packed her things and left"
(n) real property, real estate, realty, immovable (property consisting of houses and land)
(n) commonage (property held in common) (n) landholding (a holding in the form of land)
(n) salvage (property or goods saved from damage or destruction)
(n) shareholding (a holding in the form of shares of corporations)
(n) spiritualty, spirituality, church property (property or income owned by a church)
(n) lease, rental, letting (property that is leased or rented out or let)
(n) trade-in (an item of property that is given in part payment for a new one)
(n) public property (property owned by a government)
(n) wealth (property that has economic utility: a monetary value or an exchange value)
(n) estate (everything you own; all of your assets (whether real property or personal property) and liabilities)
(n) heirloom ((law) any property that is considered by law or custom as inseparable from an inheritance is inherited with that inheritance)
(n) stockholding, stockholdings (a specific number of stocks or shares owned) "sell holdings he has in corporations"
(n) trust (something (as property) held by one party (the trustee) for the benefit of another (the beneficiary)) "he is the beneficiary of a generous trust set up by his father" "
The information is dense, denser than my superficial slide over the word. "Wordnet Online" has a simple interface to browse hierarchies of meaning. Check it out.
In the human attempts to communicate, inevitably, one is forced into hierarchies of concepts. The hierarchy applied here is property. Property in the most general sense is the top tier of the tree structure, (the forest), below that is intellectual property (several trees in the forest or several species of trees or perhaps a bosco) and under that copyright, patents and trademarks (more different trees or branches). The lemma (headword), to use a term from linguistics is "property." The tree structure under the "headword" are the types of property leading one level down to the section of types of intellectual property.
Of course hierarchies overlap - items in the "intellectual property" hierarchy may just as well show up in "art" or "scholarship" or "rap music" or "lunch box." Wordnet cannot help with intellectual property since it is an example of rather arbitrary technical language. When Eve and Adam named things, intellectual property was not included - too bad for them really, they could have copyrighted all the words.
What a "trademark" (e.g. Kleenex, Prado, Mercedes, Roto-rooter) have to do with intellectual property (music, pictures, books and patents) is hard to fathom for the amateur and probably for the linguist. Perhaps Mr. Daimler spent uncounted hours deciding to name his daughter Mercedes which he then proclaimed loudly for 43 minutes, thus yielding an expressive work, and he may have spent more uncounted hours deciding to name his line of cars after her. Trademarks seem a strange graft on intellectual property. No doubt departments of corporations worry about trademarks and have no trouble justifying their existence and keeping the courts busy. For those of us concerned about electronic research materials and indexing out of print library book, having to mix in trademarks muddies the already murky waters.
It is also hard to imagine an abstract category more prone to strife and contention than property, well, maybe sex. In contrast, the category "library books" is largely devoid of strife - until 2006, that is. Considering library books and electronic research materials under the category property seems a bad tactic and a bad strategy, a clear sign of lack of perspective.
In the category of "real" property, although disputes are widespread, the rules are clear. The first question is: "Do you have a deed?" If the property is not important enough to have a deed, the question might be: "Do you have a receipt of purchase?" If the property is worth neither a deed nor keeping the receipt, then one may ask: "Did you write your name on it with a magic marker?"
The government has expended considerable effort on the local level to track real property. For land and houses, counties are charged with maintaining records on who owns what. All lots can be printed out from the web and the prices from recent sales can be compared. Despite all the potential for conflict as land and houses are passed from generation to generation, thousands of local entities exist with no purpose other than to know with some certainty who owns what, and incidentally, what is it worth. Not surprisingly, this record keeping goes back into the middle ages and its principles were imported to America with the settlers. It is true that the transactions with "real" property are private transactions yet there are often reasons to have to see someone down at the courthouse.
Cars also have deeds and all states have extensive bureaucracies to make sure the cars are registered, insured and properly maintained, and taxed. With refrigerators and washing machines, sending a card to the manufacturer will cover all the bases.
Liquid property is equally strictly accounted for except for the odd billions hidden in mattresses around the world. With less important property, agencies will involves themselves should such property be stolen or damaged.
Intellectual property is another matter; since 1976, it has been the exclusive province of the Federal Government. Attempts to make sense of the matter should really terminate here. However, if we should press on, the realization dawns that the "intellectual" part of the tree hierarchy "property" is a wild and crazy place. To stay with the jungle metaphor, the trees are full of different tribes of monkeys with distinctly competitive agenda (a plural lexical form).
To help me understand some of the issues in this extra large barrel of monkeys, I have enlisted the help of Judge Richard Posner (and his co-author on occasion, Professor William Landes) for several reasons - first, some of their work is freely available on the web and through peeking on Amazon. Second, Judge Posner is willing, on occasion to speak candidly about the problems of IP, revealing unexpected wrinkles in the law. Finally, he is one of the ones who could have it his way when he sat on the bench. He understands how laws are made, what they are intended to achieve, and is generally pragmatic. He knows when to raise, when to hold, and probably has never had to fold or run. (Note: possible infringement here.) While on the bench he changed many games before his retirement 2000 to a career of prolific writing.
Before we grant too much significance to the factors above, an example from Judge Posner's working life should make all the relations clear. In a talk at the AEI in Washington in 2002 Judge Posner said:
"...the high point of my career as a judge of intellectual property came in a case involving 'Beanie Babies.' [...] I have actually written opinions in three cases involving 'Beanie Babies,' and I regard that as my area of expertise in intellectual property. But, in one of the cases, the infringer claimed that the reason that his bean bag stuffed animal resembled the 'Ty's' Beanie Baby pig, was that both had been copied from nature. And, I refuted this by displaying a photograph of a pig, a real pig [...].This charming anecdote was offered as a thank you for an introduction which praised Judge Posner's attention to fact.
Of specific interest in my admittedly only superficial and unprofessional glance at P&L's work is something one could call the epistemology of the law. Legal writing is not a razor sharp, decisive grab for insight as John Houseman might have made us think in the movies. With so many person-made variables, with so many allowances that have to be made for the human condition, a soft style is required. Nor is it even possible to speak of an epistemology, the skills of a seer reading tea leaves might be more appropriate. What will Disney do to prepare for the 70 anniversary of Walt Disney's death? What will campaign contributions for Congress look like in the next six years? Will Google learn to smooth the path for its agenda through Congress the way it has mastered advanced algebra? Imponderables all.
Judges write voluminously as part of their job of judging. Yet their writing is of a particular kind. I cannot imagine writing ten pages of text that explains to one and all why some person should go to jail for 20 years instead of 10 years. I cannot imagine writing 20 pages explaining to some persons why they have to pay 2 million dollars in damages. Nor can I imagine a meeting where I would solicit opinions on how many consecutive life terms to give a 70 year-old embezzler - eagerly given no doubt form a group of under-30 clerks. The stakes in what judges write are high - at least when it come to the actual pronouncements. Of course judgments can be set aside for all the weight they may assume when pronounced. This can lead to a strange waffling that might be imagined to be antithetical to the power the actual words have over plaintiff and defendant.
Upon closer consideration, however, it becomes clear that the waffling is part and parcel of judicial writing. It is clear - it is a fact - that someone will go to jail or pay damages. All that is required after deliberation is a plausible trail of text that leads to the desired conclusion. The text does not have to be iron clad, merely plausible within current law. And there is a lot of law out there ready to be searched electronically. This is a formidable rhetorical problem, not for judges, but for the rest of us. Although I must admit I have not studied the writing of judges through the ages; I have looked at one or two examples. At present there sits on my desk "The Structure of Intellectual Property Law" (Harvard: 2003) by Judge Posner and Prof. Landes as well as some of their minor essays on IP. In these texts I have found some puzzling things that have lead me to speculate on the rhetorical roots of the book in judicial writing. More wind-up follows.
The world of judges and lawyers and law professors consists primarily of cases. The law itself is important in application to real cases: Bill and Sally and their lawyers are before the court. The structure in the situation is a dispute, some body of fact and some body of argument that leads both plaintiff and defendant, whichever may be which, to hope to win. Of course, this rhetorical situation is fundamentally different from scientific inquiry, even in the loosest and most general form of science, the study of the humanities. A state of affairs is observed in science - it can be anything: six crows in a field, a yellow streak in a stream, the shape of a bicycle helmet, water imagery in Moby Dick, a tornado in Kansas. Some observation is gathered into systematic data and a hypothesis is developed - this goes on until the phenomenon under observation is explained. Dissent is possible, leading to a better explanation.
In both cases - the law and science - laws are at work: the laws of humans (formerly called the laws of man, in short, The Law) and the laws of nature. Of course one must not forget that different cultures have developed different approaches to The Law; that is the human dimension. Science is largely uniform, internationally. In the Anglo-centric universe of case law there is a long history of disputes and what laws were applied to settle them. Btw. all of this is on-line and searchable. What is documented in The Law are struggles of human will. With The Law, there is no clear "law of nature" such as gravity that requires that things fall to the ground at a specific feet per second. Things have fallen to the ground in pre-historic times, they have fallen to the ground in Pisa in the Renaissance and they fall to the ground today. Charles S. Peirce spent much of his scientific career measuring variations in gravity all over the east coast and Louisiana. There are no counter arguments to gravity; there is no prospect of a "Counter Gravity Implementation Act" tabled in a Congressional Committee; things fall to the ground on the moon as well, although not as quickly.
Human law changes - changes constantly. There once were laws that administered slavery - to pick an egregious example that everyone can understand. Examples go back to the beginning of history. Wars were fought, prisoners were captured and sent to the galleys or to the mines or to the cotton fields. Ideas on the fundamental dignity of humanity were developed over time and slavery was judged to be antithetical to human dignity. Washington had no problem with slavery but Lincoln did. The ship of state altered course and that was not so long ago. The collective has a methodology to change its mind. Long live the Republic.
Science cannot change its mind, but it can be shown to be wrong, and it can be corrected. There is a good bit of evidence that much of our science is indeed wrong - certainly all our science fifty years ago was pretty wrong; better instruments, better data collection, better theories lead to new insight. I am lead to these musings by the recognition that the rhetorical structures of human law - The Law - is fundamentally different than the investigations of natural law. My formulations are tentative since it is equally hard to be right in both or in either. It is impossible to pontificate on the structure of the cosmos or the structure of the atom when the experts are confronted by paradoxical phenomena that they cannot really explain with a straight face. It is equally difficult to pontificate on social structures of past civilizations or on the writing of history 2000 years ago when the lens of history is generally opaque, although gesticulation helps. It is equally impossible to pontificate on the law since the law may change its mind.
Yet both areas generate a vast number of texts, and it is important to be current in some sense for the purpose of limited pontification. Since I have chosen the area of copyright and library books, I can examine how the law has changed its mind over the years. I can also examine the current state of the discussion. From the area of science, i.e. observation of phenomena and hypothesis building and focusing on human law - the preliminary hypothesis might be that the process of formulating the laws that govern society is arbitrary, unpredictable, wasteful, and on some level quite silly though workable in the sense that anything can be made workable.
Yet that is the wrong perspective. When investigating laws that have not changed much in the last 3,000,000,000 years, the activity is more along lines of a voyage of discovery of what is. When laws change every decade and are amended in between, the function is more a predictive one, what will be.
What are the things that one can count on in human nature that will bear on the future direction of the law? Crime is a constant; conflict is a constant. If, as I speculated above, the knowledge base of The Law are the conflicts that have come before it, let us say in the last thousand years, then some detailed knowledge of the parameters of action must have been established. One can go back to late medieval times, examine laws and conflicts, one can go to the founding of the Federal and State governments and one can look at recent legislative history to see what the latest trends are. What one cannot do is to form a hypothesis on what is wrong with The Law and how to fix it, or how to fix even one tiny little piece of it. One can, however lobby with a couple of million dollars and set the whole thing on its ear. But that is merely an exertion of will, the law will yield to that.
It is unfortunate that analysis, objective analysis is not applicable. This is unfortunate since that is the great academic temptation. Many people are working on understanding nature. Many people are working on shaping the law. Some few people are trying to understand the law as a part of nature, commerce and economics and social interaction - all far removed from what is called hard science - try to understand the law.
The last group, the understanders - although I would say my current efforts go in that direction - one can forget. More interesting are the shapers. When looking at their texts one can set aside cause and effect as learned from nature - cause and effect has been modified to operate in a theater where the most important thing is to test the will. You want it that way, I want it this way - who will prevail? The ordinary person may have some acquaintance with tests of will in daily life; generally, a "so sorry" will smooth the waves. To abolish slavery and remove the body of law that administered it, it was necessary to fight a long and bloody war. In legal matters tests of will are writ large. Some corporation may have intellectual property worth a billion a year and employ hundreds of thousands of people and hundreds of lawyers and lobbyists. When that organization asserts its will, the law is changed, the ship of state orders a course correction and the new will is acknowledged, asserted, recorded and enforced.
Of course there is a sense that The Law does what is right, the right being relative over time and place. The problem is that the law represents many interests and interests agglomerate. The law used to be the will of the best fighter or the will of the king. Over time, the law became the will of an oligarchy of nobles or merchants. With democratic ideas, the law has been handed to the elected representatives of the people, their staffs and a multitude whose job it is to influence and steer their activities.
Lawyers know this as do judges. Everyone should really be taught in JR HS civics that government is really a court culture seeking to be close to the "halls of power" where wills clash, deals are made and the only concern is to stay in the game, to make it to the next legislative period or to get one more cases off the docket. There is nothing bad about that even if it does conflict what is actually taught in JR HS civics about the separation of power and the rights of the citizen and the selfless work for the common good. All areas of government have created a knowledge base of what is possible, loosely based on what happened in the past and whatever new test of will are coming down the pike. A cybernetic organism is lurching toward the future. In this case I would like to examine what is possible in the area of intellectual property. Or better, to examine texts that can give us clues as to what is possible.
