A man of prodigious fortune, coming to add his opinion to some light discussion that was going on casually at his table, began precisely thus: "It can only be a liar or an ignoramus who will say otherwise than," and so on. Pursue that philosophical point, dagger in hand.

--Michel de Montaigne, Of the art of discussion.



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Lions and wires in the air! So high!

Yesterday I read the Ninth Circus's latest three ring spectacle. Here’s the question: You own a copyright. Someone infringes it. Can you assign the claim to someone else, someone who owns no other interest in the copyright?

Under the bigtop, we have a seven-judge majority making a big show of walking a strict statutory construction tightrope. The statute says that the owner of an exclusive right “is entitled” to sue “for any infringement of that particular right committed while he or she is the owner of it.” The “exclusive rights” (i.e., copy, distribute, perform, make derivative works, etc.) are all enumerated in the statute. The statute doesn’t say any other people are ever entitled to sue. Nor does it say they’re not. In particular, it doesn’t say that assignees of a right to sue are entitled to sue. Nor does it say they’re not, or that copyright claims are unassignable. From this, the majority concludes that copyright claims are unassignable and that purported assignees can't sue. Expressio unius, exclusio alterius, ipso facto Q.E.D.

Of course, the copyright statute also doesn't say that the people who it entitles to sue are allowed to authorize lawyers to bring suit in their name rather than appearing in court on their own behalf. In fact, the statute is silent on this crucial point--just as silent as it is on the question whether accrued claims are assignable. And, the majority takes pains to emphasize, copyright is purely a creature of statute--which apparently means that background principles of common law simply don't apply, even to matters on which the statute is silent. So, I'm wondering, where does the right to have a lawyer prosecute copyright claims on one's behalf come from? As there is (as far as I know) no federal statute expressly granting people this ability to delegate the prosecution of their claims to lawyers, should we assume that unless a particular federal statute expressly says otherwise, any causes of action created by it must be prosecuted in propria persona? Or should we make the opposite assumption, that general principles of background law apply unless the federal statute expressly abrogates them?

Though the majority had introduced its act as one of simply plodding step by textually bound step along the tightrope, at a certain point it breaks into an intriguing dance. Apparently only half of the crucial statutory language is realio trulio exclusio--the part about being an "owner of an exclusive right under a copyright." As long as you are such an owner, not only are you "entitled" to sue on your own claims, you also have the power to sue on copyright claims assigned to you. But wait--wasn't the statutory entitlement limited to people who own an exclusive right that is infringed "while he or she is the owner of it"? Yet the majority appears to say (granted, without holding since it's not before them) that an owner of any exclusive right, being a member of the class Congress intended to empower to sue on copyright claims, is entitled to sue on an assigned claim--even though the exclusive right she owns wasn't itself infringed. And even though she didn't own the right that was infringed at the time the infringement was committed. So now we've got one foot shuffling along the tightrope, and the other out there doing the hokey pokey.

The really bizarre thing about the majority's position is that it seems trivially easy to get around. As the majority acknowledges, the exclusive rights under copyright are infinitely divisible and transferable. So if you want to assign an accrued copyright claim, all you have to do is transfer along with it some exclusive right defined in such a way as to have no practical significance. Say, the right to use the copyrighted work in the making of a derivative work whose sole subject is the depiction of a peppercorn.

In ring two we have a pair of judges who don't really believe in tightropes. A rope after all is just a bridge trying to get somewhere, and as long as a smart judge knows where Congress was going, she can take her own route. In fact, these judges generally see one of their main jobs as that of building safety nets to catch all the people who would otherwise fall off Congress's various tightropes, but who they--don't ask them how--just know were intended to make it across.

Actually, the ring two judges clue us into something that the majority had done a fairly good job of keeping under wraps. This isn't really about tightrope walking at all. It's about lion taming. The lions are all the non-copyright owners to whom copyright claims might be assigned. Some lions are relatively well behaved, jumping through hoops and furthering the progress of science and useful arts like they're supposed to. Others are mean nasty creatures who growl and bite for no good reason but a desire to harass. These latter are also rumored to be, ahem, rather fecund. The majority tried to keep all lions out through a strict no lions rule, albeit a strangely defined one. The ring two judges, though, know that the way to deal with lions is not on a categorical, speciesist basis, but by using your special judgely powers to divine which lions are mean and nasty and which are really sweet widdle puddytats. The former get the whip and the chair; the latter get into court. And what makes this a really fun ongoing act is that you can never tell in advance which new lion will get put in which category. The entertainment is endless.

Ring three contains two more judges. Like the ones in ring two, they had hoped to be in the majority but instead got shunted off into a sideshow. These are the kind of judges who generally take tightropes pretty seriously. But, like the ring two judges, they find it hard to take seriously the one-footed dance the majority is doing. Plus they think this particular tightrope was put there not by Congress but by the majority itself. They're textualists, but they don't see how the text "I grant X a right to sue" implies the other non-existent text "X may not assign his right to sue to anyone else." The ring three judges also see that what's going on here really has something to do with lions. In fact, they lift another curtain and show us who it is that's really afraid of the lions--a particularly juicy zebra. Unlike the ring two judges though, they don't think they're equipped or authorized to decide which lions are suitable for domestication and which aren't. If Congress hasn't made any anti-lion rule, then you just take all comers and make them jump through the same hoops. If there are too many of them, or they get too nasty, well then Congress can make rules about which ones should be admitted.

Should the ring three judges be more concerned about the lions than they are? Or are these really imaginary lions? Zebras, after all, are likely to think they see lions lurking behind every bush. You can't blame them for this; it's a survival instinct. Here's what our zebra thinks it can "envision":

…a market developing in which speculators with no relationship to the copyrighted work pay a small sum to the copyright owner—who might have no belief in the merits of an infringement claim and no incentive to sue—in exchange for the ability to pursue a high volume of nuisance settlements or unwarranted jury verdicts.

We'll leave aside for a moment the disturbing lack of faith in our judicial system shown by the vision of a "high volume" of "unwarranted jury verdicts." The question is how likely it is that copyright owners will want to sell me their meritless claims so I can set up Nuisances R' Us. It seems to me that in many if not most cases, if copyright holders prefer not to bring suit themselves, they will also prefer that no one else do so either. For a number of reasons. One is that any lawsuit involving a copyright they own will likely wind up dragging them into the ring one way or another even if they’re not the plaintiffs. They will be subject to discovery and the other hassles of litigation over a case they’re not interested in. In addition, if the suit really is nothing but a nuisance suit, whatever public or private opprobrium falls on the perceived bringers of nuisance suits will splatter them as well, for everyone will know where I got the right to make a nuisance of myself.

In Silvers, the assignee was actually the author of the work, who didn’t own the copyright because she’d written it as a work for hire for a production company. (Which is why the ring two judges see her as a puddytat and not a lion. Even though she doesn’t own any exclusive rights, she still has some sort of meaningful relationship with the work in question.) Why did the company assign the claim to her? I’d guess it was because while they didn’t want to pursue it themselves (probably to avoid conflict with Sony), they also couldn’t just ignore it without arguably violating some contractual or fiduciary duty to protect the author’s interest in royalties. So they said, “Here, if you think this cost you money, you can go after it. We’re keeping out of it.” If I had tried to buy the same claim from them, the desire to avoid conflict with Sony would not be counterbalanced by anything but the “small sum” my business model allows me to offer.

So, to make my high volume nuisance copyright suit enterprise work, I have to identify a steady stream of potential infringement claims whose value is iffy enough that the copyright owners have no interest in pursuing them, that affect no-one the copyright owners want to have good business relations with, that are colorable enough to keep me from getting thrown out of court and/or slapped with sanctions, and whose owners are unconcerned enough about the potential costs to them of my bringing suit to sell to me for small sums. All things considered, I think I’ll keep my day job.

On this one, my hat goes in the ring with Judges Bea and Kleinfeld.
posted by CMN at 10:34 AM
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