I’m pleased to post Show # 253, April 29, my interview with Prof. Pam Samuelson of UC Berkeley School of Law and School of Information, on the Authors Alliance. Pam needs little introduction to Hearsay Culture listeners given her position as one of the leading intellectual property law scholars of the last 30 years. In this interview, we focused on Pam’s work for the Authors Alliance, founded by Pam in 2014 to promote “authorship for the public good by supporting authors who write to be read.” Given the continued pitched battles around the contours of United States copyright law, the timing of our discussion could not have been better. In a candid and broad interview, we discussed the recent Google Book Search fair use decision, the Authors Alliance’s relationship with the Authors Guild, and the role for academics in policy debate, among other topics. I was thrilled to have Pam on the show, and look forward to her future return!
I’m posting this show on a Sunday night, with The Jazztet’s Another Git Together (Mercury SR-60737, 1962), playing on my turntable. This is an appropriate background — although, as my guest points out in this interview, music listening should be immersive, not merely serve as a backdrop — for posting Show # 251, March 11, my interview with Dave King, drummer for The Bad Plus and host of Rational Funk. While one could dismiss this interview as my effort to parlay Hearsay Culture into a fan exercise, as I’m a big Bad Plus (and an amateur drummer), Dave’s development of the video podcast Rational Funk is the clear Hearsay Culture hook.
Dave is one of the most successful and acclaimed jazz drummers of the past 20 years, but his work creating Rational Funk and the impact of technology on the jazz world was our focus. In this wide-ranging and candid interview, we discussed the paths to success for jazz musicians today, the production, development and impact of Rational Funk, and even some of Dave’s personal reflections on the film Whiplash‘s accuracy. It was a joy to chat with Dave, who took time out of a busy touring schedule to join us on the show, and I hope that you enjoy our discussion!
(a) Rational Funk Ep. 21, Lady Gaga/Laptops, excerpted in the introduction;
(b) My personal favorite Rational Funk episode, episode six, where Dave demonstrates how to use military drumming to full effect as a jazz drummer;
(c) The Dave King Trio, live at the Village Vanguard (my favorite jazz venue in the world), 2013. Thanks so much to NPR for recording and presenting live jazz!
I’m honored to post Show # 250 (!), March 4, my interview with Sam Brylawski of the Library of Congress’ National Sound Preservation Board, co-author of the ARSC Guide to Audio Preservation. Sam is one of the pioneers of audio sound preservation, and one of its foremost experts, having been the President of the Association of Recorded Sound Collections (ARSC) and editor of the Encyclopedic Discography of Victor Recordings. Sam’s work focusing on preserving our collective sound history is extraordinarily important, as this history is at persistent risk of disappearing through degradation of obsolete sound preservation formats, like wax cylinders and metal plates. In our discussion, we focused on the challenges facing our world’s sound history, from funding to copyright law. I’ve known Sam for over 10 years, and this show was long overdue. I hope that you enjoy the show!
(a) ARSC Guide to Audio Preservation, 2015.
(b) The State of Recorded Sound Preservation in the United States: A National Legacy at Risk in the Digital Age, Council on Library and Information Resources and The Library of Congress, 2010.
Historical note: Speaking of history (that is also at long-term risk — how long will links last?), this is indeed show number 250 (!), corresponding with almost 10 years of programming. To honor these dual events, I’ll be interviewing Lawrence Lessig on Tuesday, April 26, 2016, “live” in Greensboro, NC at Elon Law. Grateful to have reached this point; more soon!
I’m pleased to post Show # 246, November 6, my interview with Member of the European Parliament Marietje Schaake on democracy and technology in Europe. Recommended by former Hearsay Culture guest Lousewies van der Laan of the Alliance of Liberals and Democrats for Europe, Marietje is a leading EU public official focusing on technology policy and the impact of technology on democracy. Her work is a perfect fit for Hearsay Culture, as it spans issues including Internet freedom, dual use technology, copyright policy, international trade agreements like the Anti-Counterfeiting Trade Agreement (ACTA) and Transatlantic Trade and Investment Partnership (TTIP), and the EU’s Digital Single Market. In our wide-ranging interview, we covered all of these topics, and even got into a discussion about EU-US relations and the impact of Edward Snowden’s revelations on that relationship. Marietje was an outstanding guest, and we had a terrific discussion. I look forward to having her back on the show in the future.
This has been a crazy semester. Thus, I am delinquent in posting shows from this quarter. I am about to update the record.
Let’s start with Show # 244, October 2, my interview with Prof. Andrea Matwyshyn of Northeastern University Law School, on the Digital Millennium Copyright Act (DMCA) and the Volkwagen fraud scandal. Andrea has been doing outstanding work focusing on how copyright law can impede the ability of computer security researchers to conduct their research. On behalf of several academic security researchers, she submitted a request for an exemption under the DMCA for such research, and found success in late October. In our interview, we discussed the nature of computer security research, the law around it, and its implications for issues like research around the still-unfolding Volkswagen scandal. I am a big fan of Andrea’s work, and was delighted to have her on the show. I hope that you enjoy the interview.
For the final of the July shows, I’m thrilled to post Show # 243, July 31, my interview with Prof. Jacqueline Lipton of The University of Akron Law School, author of Rethinking Cyberlaw: A New Vision for Internet Law. Jacqui’s work is well known to Internet and intellectual property law scholars, and she makes a wonderful contribution with her take on the state of Internet Law as a field today. Focusing primarily on copyright, trademark and speech caselaw and doctrine, Jacqui suggests that Internet Law’s primary focus is now information and intermediaries (think Google or Facebook). As I’m going to be teaching Internet Law again starting in a few weeks, I’m integrating Jacqui’s insights into my materials. We discussed the state of the field and where its headed in our discussion, which was a lot of fun.
I’m pleased to post Show # 235, April 29, my interview with Profs. Irina Manta of Hofstra Law and David Olson of Boston College Law, authors of Hello Barbie: First They Will Monitor You, Then They Will Discriminate Against You. Perfectly. Irina and David have written a challenging and insightful article that posits a burgeoning economy where, as they put it, “manufacturers of software and of consumer goods … make use of consumer monitoring technologies and restrictive software licenses to more perfectly price discriminate.” Put differently, Irina and David argue that corporate monitoring and the ability to set restrictive license terms may not have the negative effects that one might assume; indeed, it may make software more affordable for more people. Drawing on the somewhat-creepy story of Mattel’s Hello Barbie, Irina and David have penned a fascinating article that positions the Internet of Things as a potential boon to software and technology access. We explored the structure and ramifications of their arguments in a fun discussion, which I hope you enjoy!
I’m thrilled to post Show # 230, February 18, my interview with Prof. Elizabeth Townsend Gard of Tulane University Law School and Ron Gard of Limited Times LLC, on The Durationator, an online tool to determine whether any work of authorship is covered by copyright, and social entrepreneurship. I have been a big fan of Elizabeth’s copyright duration work for a long time, and had her on the show in 2009 to discuss her amazing project entitled The Durationator. Now, after many years of work, The Durationator is a reality and publicly available through a partnership with Thomson Reuters. Having formed an entity, Limited Times LLC, with her husband Ron Gard to run The Durationator as well as focus on their social entrepreneurship efforts, we had a wide ranging and celebratory discussion about social entrepreneurship, as The Durationator launched on February 18, 2015, the day that the show aired on KZSU! I hope that you enjoy the discussion and learning about Elizabeth and Ron’s fascinating and useful work. Congrats Elizabeth and Ron!
I’m pleased to post Show # 220, August 6, my interview with James Grimmelmann of the University of Maryland School of Law and David Post of Temple University School of Law, on the recent US Supreme Court decision in ABC, Inc. v. Aereo and Facebook’s emotional manipulation study. David and James are both repeat guests on Hearsay Culture, but have never been on together. We focused on two issues: (a) the Aereo amicus brief authored by David and James on behalf of law professors, and the impact of the Aereo decision on copyright law and how new content delivery systems may or may not run afoul of copyright law, and (b) the impact of Facebook’s secretive 2014 behavioral study in which it manipulated the content delivered to users’ newsfeeds, particularly James’ extensive analysis of the problems associated with the study. Both issues raise important questions of the role of law in information and content distribution and how private entities and the public might navigate the current technological terrain. I always enjoy David and James as insightful guests capable of wide-ranging discussion, and this show was no exception.
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.