I’m pleased to post Show # 216, July 9, my interview with Prof. David Schanzer of Duke University’s Sanford School of Public Policy, on Edward Snowden and the National Security Agency (NSA). It was a bit over a year ago that Edward Snowden appeared on the scene as the source of a seemingly-endless array of information about the NSA’s legal and illegal spying. Snowden has since become a household name for his willingness to expose this behavior despite significant personal risk, which has caused scholars, policymakers and others to weigh in on how Snowden should be viewed. In my interview with David, we discussed David’s views on Snowden as a felon, and whether the “whistleblower” label is appropriate. In the process, we also discussed some of the NSA’s activities and how policymakers might approach reform of the NSA. David’s experience in the counter-terrorism and law enforcement world is vast, and I greatly enjoyed the discussion.
For the first show of the summer quarter, I have the privilege of posting Show # 215, July 2, my interview with Carl Oechsner of Croton Friends of History, and my middle school social studies teacher, mentor and inspiration, on children, teaching and technology. I am thrilled to interview Carl for the show, which was in-part inspired by my continued attempt at emulating Carl’s passion for teaching outside of the classroom.
As I noted in the schedule, Carl’s influence and teaching brilliance inspired me to pursue law, government and history. Carl discusses that passion for teaching in the interview, as well as his reflections on 30+ years as a truly legendary public school teacher. It was a wonderful discussion that I greatly enjoyed.
One personal note: As a society, we don’t do enough to show thanks to our teachers. The intrinsic rewards of teaching are primarily measured in the impact that one teacher can have on the lives of the students with whom that teacher interacts. But it is the rare teacher that can display the excitement, inquisitiveness and intelligence necessary to alter a generation of students’ lives permanently for the better. I was fortunate to draw Carl as a teacher, and ultimately, this show is my way of saying thank you Carl — Mr. O — for all that you did and continue to do. May this interview be one token of my appreciation and respect.
As I finalize the schedule for the summer quarter (to be posted on July 4th!), I’m pleased to post Show # 214, May 28, my interview with Prof. Evan Selinger of Rochester Institute of Technology on technology and the human experience. Evan’s work spans the range of technology, ethics and philosophy, an unusual but critical intersection as we consider the ramifications of algorithms, robotics, drones, 3D printers and social media, among many other innovations, on our lives. In our discussion, we focused on Evan’s concern about “outsourcing” our humanity to computers and technology and how it has and will impact our humanity. Evan is an insightful and original commentator and scholar, and I greatly enjoyed our discussion!
Last in the current barrage of shows is Show # 213, May 21, my interview with Ryan Calo of University of Washington School of Law and Woodrow Hartzog of Cumberland School of Law on robotics law. Although robotics and drones have come up occasionally on Hearsay Culture, they have never been the primary topic. It was arguably past the time to end that drought. Ryan and Woody are two scholars leading the discussion of the law and policy that should guide the mass entrance of robotics into everyday life (closely related to the emergent concept of the Internet of Things). We discussed everything from their We Robot conference to whether robotics will be the downfall of society (the latter sounds like typical Internet hysteria, but that is indeed the focus of the linked article). As expected, I greatly enjoyed the discussion, and fully expect that this will be the first of many discussions of robots and the law!
I’m pleased to post Show # 212, May 14, my interview with three-time Hearsay Culture guest Larry Downes, co-author of Big Bang Disruption, on disruptive technology and business strategies. Larry and his co-author Paul Nunes (who was not on the show) have written an insightful and enjoyable book looking at both the causes of and reaction to disruptive technologies by new and traditional businesses alike. Like the book, which is bifurcated between descriptive and proscriptive analysis of rapidly-disruptive technologies, we talked about the meaning and impact of “big bang” distruptive technologies and how companies can both react to and create environments that create disruptive technology. As always, I greatly enjoyed our discussion!
Show # 211 — Profs. Ben O’Loughlin and Laura Roselle on strategic narratives in international relations — posted
The barrage continues! I’m pleased to post Show #211, May 7, my interview with Profs. Laura Roselle of Elon University and Ben O’Loughlin of Royal Holloway, University of London, co-authors of Strategic Narratives: Communication Power and the New World Order.
Hearsay Culture has been interviewing communications scholars since its founding, but in recent years there’s been a greater focus on political science. The primary reason for the increasing focus is the emerging offloading of complex intellectual property and technology policymaking to international institutions. Enter Ben and Laura’s excellent book focusing on how framing plays a critical role in modern international relations. Thus, as the Trans Pacific Partnership (TPP) and Transatlantic Trade and Investment Partnership (TTIP) wind their way through largely secret negotiations, this conversation can help Hearsay Culture listeners understand the communications and diplomatic angles on substantive policy. In that way, we may have a better grasp on why we get the policy that we do. I greatly enjoyed the discussion!
I’m pleased to post Show #210, April 22, my interview with Mary Wong, Senior Policy Director at the Internet Corporation for Assigned Names and Numbers (ICANN) on the move towards international administration of the Internet. Over the past three months, there has been much discussion about the move from US to ICANN administration of domain names. Mary, a former law professor, is at the center of this issue at ICANN, and I wanted Mary to come on the show to answer questions and dispel myths about this important procedural issue. In our discussion, we discussed the role of ICANN and what their increased role in administering domain names means and doesn’t mean. I enjoyed the discussion.
I am thrilled to post Show #209, April 15, Dutch politician and former European Parliament member Lousewies van der Laan on promoting democracy and technology. I met Lousewies at a conference on innovating justice at The Hague in 2012. Lousewies is a leading voice on democracy and human rights in the EU, and I was delighted to have her on the show to discuss a wide range of issues involving the operation of democracies in 2014. From the rise of the far right to the role of the public in policymaking, we had a terrific discussion that I greatly enjoyed. I look forward to chatting with Lousewies’ colleagues on upcoming shows!
At LONG last, after working on issues ranging from transparency in international trade and hydraulic fracturing to making sure that 3Ls have grades upon which to base their graduation, I am now going to begin a flurry of posts of this quarter’s shows. Thanks for your patience, and get ready for a barrage!
So let’s start with Show #208, April 8, my interview with four-time guest (thanks Mark!) Prof. Mark Lemley of Stanford Law School on this term’s United States Supreme Court intellectual property cases — and there are a banner number. This term’s cases have addressed some of the most vexing issues in patent law generally, ranging from claim construction to abstract ideas. We discussed the primary cases, as well as current legislative efforts to address patent trolls/non-practicing entities/patent assertion entities. As always, I greatly enjoyed my discussion with Mark.
[Ed. note: apparently the Facebook "like" box is currently broken. So like it some other way, if you'd like].
When Harold Ramis died in late February, I reflected upon his long career in comedic acting and film. As a much less successful alumna of the comedy classes offered by Second City, I appreciate the subtle but hilarious humor that Ramis and his SCTV counterparts added to film and television. And after I had considered his impact, like any good copyright attorney, I asked the next logical question: How often had he been sued?
The answer, from what I could tell from reported law decisions, was three times, with the caveat that legal database searches don’t uncover most cases that settle early or cases that are threatened but not filed. The reported lawsuits followed the same fact pattern: an unknown author alleging that the plot of a successful movie co-written, directed, or produced by Ramis had infringed upon the plaintiff’s earlier treatment of the same idea, and that Ramis owed his success to the plaintiff’s contribution. The lawsuits appear loosely one per decade.
So here’s a brief rundown of those cases:
The first case, Meta-Film Associates v. MCA, concerned Animal House, which Ramis co-wrote. According to the plaintiff, author James Hart had written the screenplay Frat Rats and submitted it to a director for Universal in mid-1975. The director, dismissing the screenplay outright as “terrible,” never brought it to the attention of Universal executives.
Ramis, under the auspices of the National Lampoon Company, announced his intention to create a film based on high school or college life, and very soon after, another contact from Universal Studios contact National Lampoon expressing interest to produce. National Lampoon delivered the treatment for Animal House in early 1976. And predictably, the plaintiff sued, alleging that National Lampoon had copied Frat Rats. The judge ruled that the plaintiff had to prove National Lampoon had access to Frat Rats, and similarity, in inverse proportions to each other. The judge denied a motion for summary judgment, which would have allowed Ramis to win the suit outright before a jury trial. However, the judge also found as a matter of law that the plaintiff could not prove that National Lampoon had any access to Frat Rats, a ruling that had the effect of ending the lawsuit.
Lawsuit number two challenged the originality of Groundhog Day. In Arden v. Columbia Pictures, author Leon Arden alleged that Groundhog Day copied the idea of his novel, One Fine Day, in which the main character repeated the same day dozens of times. Again on a motion for summary judgment, the judge took painstaking detail to explore the plots of One Fine Day and Groundhog Day, co-written by Ramis.
This time, the defendants conceded (for purposes of the motion) that they had access to the novel. However, the judge concluded as a matter of law that the novel and the film were so dissimilar that there was no illegal copying. The court explained, “the idea of a repeating day, even if first conceived by the plaintiff, is not protectable.” The judge ponderously walked through the elements of plot, mood, characters and character development, pace, setting, sequence of events, and specific similarities to determine that no reasonable jury could find in favor of the plaintiff. (Good thing for Kate Atkinson and her current bestseller Life After Life, which expands upon the same idea.)
The third and most recent lawsuit involved a lesser-known Ramis work, The Ice Harvest. Here, in Coffman v. Ramis, the infringement was allegedly of a movie script registered with the Writers Guild of America, West. The registration included a description of how the town of Wichita Falls, Texas got its name. The Ramis-directed film The Ice Harvest, set in Wichita, Kansas, uses the sentence, “As Wichita falls, so falls Wichita falls,” which the plaintiff claimed was infringing.
This time, the court did not even need to get to summary judgment, but instead was able to dismiss the lawsuit because the complaint failed to state a claim. First, that sentence had been copyrighted before, in a song in 1981; second, whatever plaintiff claimed was infringing was far from original. As such, the magistrate judge concluded that the complaint was not viable.
Are there any themes here? Perhaps the Harold Ramis trilogy could demonstrate a shifting inclination of the court to dispose of copyright infringement cases earlier in their timelines. It’s not uncommon for successful movies to draw lawsuits based on tangential similarity between plotlines and characters, but that doesn’t mean they can be easily disregarded. And worse, they can also draw out opportunists. As one court noted in a copyright infringement lawsuit against Sex and the City writer Candace Bushnell, “this form and forum of combat does open the potential for opportunism and other kinds of abuse of process, and hence the undercurrent that runs with some frequency through the protestations of renowned defendants like Bushnell who are brought into the public arena to answer charges of wrongful conduct.”
Additionally, new standards for plaintiffs to state all legal complaints change the copyright litigation terrain. Copyright infringement cases are perfect candidates for jury trials; even if they have elements that can be decided “as a matter of law,” authors’ legal claims tend to be filled with factual determinations. For example , although the Animal House court found that National Lampoon couldn’t possibly have had access to Frat Rats before submitting its treatment to Universal based on witnesses’ testimony, the credibility of those witnesses is ultimately still in the purview of the jury. Additionally, although the Groundhog Day court found it not substantially similar to One Fine Day, perhaps the jurors would have come to a different conclusion. But in The Ice Harvest , decided under the new standards, it was much easier for the court never to get to factual determinations at all.
Of course, it’s important not to deduce too much from the case conclusions; each case has a unique set of circumstances, any of which could have contributed to the early disposition of the case. But the differing pretrial resolutions of Ramis’s cases – from refusing to grant summary judgment, but de facto resolution based on a single factor; to granting summary judgment, based on resolution of facts as a matter of law; to dismissing the plaintiff’s complaint outright – might suggest the increasing unwillingness of the courts to tolerate legal fiction-writing. Outside of Hollywood, that is.
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