Letter from AmeriKat

Amicus, Amici, America, Oh My!

With the kids back in school by mid-August and summer vacation still to take prior to the fall sessions, late summer litigation in the States is generally quiet. Not so in the US Court of Appeals for the Second District which is booming with activity. On 30 July and 3 August two amicus curiae briefs were filed in support of Fredrik Colting and the other defendants in the Catcher in the Rye case, reported by the AmeriKat here and here.

For the benefit of readers who don't speak Latin, the AmeriKat is happy to explain that 'amicus' is the Latin word for a friend; the plural is 'amici'. The people who file amicus briefs are often amici but rarely brief ...

As predicted by the AmeriKat, Colting appealed the judgment of Judge Batts in the District Court for the Southern District of New York two weeks ago on grounds of a misapplication of the fair use defence and First Amendment issues in granting a preliminary injunction. The first amicus brief was filed by The New York Times Company, The Associated Press, Gannet Co. Inc. and Tribune Company – a collection of the US’s biggest news organizations. At page 2 of their brief they stated, in support of the defendants’ actions, that

“Amici do not come to this position lightly…Indeed, their need for copyright protection is today more intense than ever as digital technologies make it ever easier for third parties to seize and repurpose the fruits of their costly newsgathering efforts. Nonetheless, Amici fiercely believe that the availability of a preliminary injunction under the copyright law cannot trump the prerogatives of the First Amendment.”

The amici cited Judge Leval's citation in Campbell v Acuff-Rose Music, stating that

“the goals of the copyright law...are not always best served by automatically granting injunctive relief when parodists [and presumably commentators] are found to have gone beyond the bounds of fair use.”

Unsurprisingly the news organizations’ amici brief focused solely on the dangers of prior restraints and their intersection with copyright injunctions:

“indeed, prior restraints cut against the very wording and core of the First Amendment, unlike the much more indirect effect of the First Amendment on libel law”

where prior restraints are almost never granted (New York Times Co. v Sullivan (1964)). The court’s statement in Religious Technology Center v Lerma (1995) was also cited in argument of the danger of granting prior restraints in copyright cases such as this as being unconstitutional:

“If a threat to national security was insufficient to warrant a prior restraint in New York Times Co. v United States, the threat to plaintiff’s copyrights and trade secrets is woefully inadequate.”

The arguments of the second amicus brief, filed by the American Library Association, Association of Research Libraries, Association of College and Research Libraries, The Organization for Transformative Works and The Right to Write Fund focused primarily on the alleged restrictive approach taken by Judge Batts in applying the fair use defence’s transformative test (more on this later on). Like the first amicus brief filed, the second also argued that the District Court failed to consider the balance of equities in favour of the public interest in receiving information as mandated by the First Amendment.

Both briefs cited the Supreme Court case of eBay Inc. v MercExchange (2006) in support of the contention that a finding of a prima facie case of copyright infringement should not automatically result in a presumption of irreparable harm. The second brief cited William F. Patry in contending that this presumption has arisen from a “dubious history and more from repetition than any sound basis in law or policy.” It was argued by both briefs that this is especially the case when the alleged infringer has a bona fide fair-use defence. They argued that eBay and the later case of Winter v Nat’l Res. Def. Council (2008) demanded that the plaintiff produce extensive evidence of irreparable injury of the copyright owner’s interests and, absent such evidence, a preliminary injunction should not automatically follow. It was argued by the second amici that Salinger had not shown

“a likelihood of any harm, irreparable or otherwise. While his literary agent asserts that a Catcher in the Rye sequel by Salinger would be worth an advance of $5 million, she does not suggest the publication of 60YL would undermine the value of that sequel or any derivative market.”

The AmeriKat agrees with this contention because merely stating that an authorized sequel is financially valuable is not the same as producing evidence that 60 Years Later interferes with the value of an authorized sequel. However, the AmeriKat reminds readers that prior to the commencement of this case Colting’s prepublication publicity centered on his book being “a sequel”. Such publicity may have well reduced the market for an authorized sequel, but how could this evidence have been satisfactorily proved to the court?

The usual suspects of appeal are also present in the briefs, such as the inclusion of the argument that the District Court erred in defining the transformative test too narrowly in that transformativness need not be apparent to all but can be present if it is possible that a reasonable member of society can perceive the transformative use (Campbell, at 582). However, it is the last argument in the second brief that caught the AmeriKat’s attention - that the District Court erred in considering moral rights as economic incentives. The AmeriKat’s tail always perks up at the mention of moral rights in the US and she found this argument not be lacking in interest. The second brief’s final argument centres on the position that the District Court

“without citation to any precedent, introduced and entirely new rational in finding market harm: the speculation that authors might create out of a desire to not license derivative works.”

The District Court’s argument was that artists may be further incentivised to create subsequent original works due to “availability of the right not to produce any sequels”, i.e. their original work is sufficiently protected so that any subsequent works created are those created by the copyright owner or licensed by the copyright owner. However, the District Court framed this argument in negative terms which left its reasoning open for attack:

“By framing the question as one of Salinger’s interests in leaving his artistic vision untouched, the District Court imported moral rights concepts into fair use law, even though moral rights are not part of US copyright law”.

The AmeriKat assumes that in referring to moral rights the second amici are referring to something akin to the ‘droit de retrait et de repentir’ (right of withdrawal) and droit au respect de l'intégrité de l'oeuvre (right to respect to modifications to the work) as found in Article L121-4 of the French Copyright Code. Remember: under Article L122-5, the French Copyright Code has its own exceptions for use of works in parodies, such as what is argued by Colting’s defence.

Despite American copyright law’s general distaste for anything parading as a ‘moral right’, the AmeriKat suggests for purposes of this argument the difference is that the French Articles are framed in negative language - ‘the right to prohibit’- whereas the US right is framed in positive language - the ‘right to prepare or to authorize’. As the District Court’s statement was framed in negative language, was this the reason why the second amici latched onto this argument? The District Court was not importing any moral rights into US copyright law; moral rights generally go much further than the right to consent to derivative works. Therefore the AmeriKat does not understand how from the District Court’s statement the second amici were able to hop, skip and jump from a basic position in US copyright law to a conception of moral rights. She therefore does not believe this argument will be sustainable in the Court of Appeals.

As this case progresses, the AmeriKat is becoming increasingly excited about the extent and breadth of copyright, prior restraint, First Amendment and fair use issues that will be argued in the Court of Appeals. The AmeriKat wishes she could have a front row seat to this surely heated trial!

For an ironic twist to this tail, see the last paragraph of The AmLaw Daily’s report on this case here.

No rest for the Twitter

Have you ever heard of IRISTM? If you are like the AmeriKat and have not, IRIS stands for Immediate Response Information System which is Texas-based TechRadium’s pride and joy. IRIS patented technology “allows a group administrator to originate a single message that will be delivered simultaneous via multiple communication gateways to members of a group.” In a lawsuit filed in the US District Court for the Southern District of Texas, Houston Division, TechRadium filed a patent infringement claim against Twitter for making, using, selling or otherwise providing throughout the US systems and methods described in TechRadium’s patent claims in the IRIS technology – specifically United States Patent Nos. 7,130,389; 7, 496,183; and 7,159,165. The extent and evidence of the infringement is not gone into in any detail in the claim save as to the standard statement that the patents are “either literally infringed or infringed under the doctrine of equivalents.” The plaintiffs are alleging substantial unspecified damages due to the loss of licensing revenue of the IRIS system and exemplary damages due to Twitter’s “gross negligence, malice and actual fraud” and conduct that allegedly amounted to intentional, knowing and “callous disregard of TechRadium’s legitimate rights.”

Apparently, according to internal Twitter documents disclosed by TechCrunch last month, Twitter was expecting patent law suits. As reported by Wired, one document stated “we will be sued for patent infringement, repeatedly and often.” In recognizing this eventuality, the document also said that Twitter needed to “get a great patent attorney to proactively go after these patents.”

The AmeriKat is not specialized in US patent law, but her cursory view after reading the TechRadium’s US patents is that Twitter will most likely try and void the patents for lack of novelty. However, in any event, the AmeriKat is eager to see what “great patent attorney” will be making a debut appearance for a long-haul of patent infringement suits on behalf of Twitter.

Mr Kat goes to Washington

The AmeriKat extends her congratulations to Sonia Sotomayor and David Kappos on their confirmations as Associate Justice of the Supreme Court and Head of USTPO respectively. To watch Sotomayor being sworn in by Chief Justice Roberts (note his script present after his flub during Obama’s presidential oath) please see ABC’s coverage here. Kappos will be charged with increasing morale and efficiency in the USTPO, while one of the first cases Sotomayor will be presiding over will be the much-anticipated case of Bilski. The AmeriKat believes this is an exciting time for intellectual property law in the US and looks forward to observing how these new individuals will progress the ever-changing world of US intellectual property law.