Litigation Sucks @mc_frontalot #lawyer #litigation

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Sundays are now lazy days for me. Going forward, I’m just going to re-post other people’s work or just do something silly. Today it’s a comic that hits home.

Image

I’ve been there, but the damn judge told me, “Yes, you are. Now get to it.” H/T @mc_frontalot

Litigation sucks. Never again.

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Good Watch: The Trial of the Chicago 7 @SachaBaronCohen @hitRECordJoe @netflix #GoodWatch

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I hate courtroom dramas. While I’m not a litigator, I can spot the nonsense when I see it, and legal dramas are always about “drama” first and “legal” last. The same is true for any industry. Some liberties were taken with the story, but based on a little research, this movie largely gets it right. And that story is frustrating. From Wikipedia:

Based on the story of the Chicago Seven, a group of eight defendants charged by the federal government with conspiracy in 1969 and 1970, inciting to riot, and other charges related to anti-Vietnam War and countercultural protests that took place in Chicago, Illinois, on the occasion of the 1968 Democratic National Convention.

The trial was a mess. The judge (ironically) showed nothing but contempt for the defense. All of the charges, including the numerous contempt charges, were overturned on appeal. The Seventh Circuit ordered a new trial, which the Attorney General declined to pursue.

Sacha Baron Cohen was awesome. Joseph Gordon-Levitt was awesome. Yahya Abdul-Mateen II was awesome. Mark Rylance was awesome. Frank Langella was awesome.

The Trial of the Chicago 7 is streaming on Netflix. There’s no reason not to watch this movie. As always, YMMV.

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The Merger Doctrine of Copyright Law #iplaw #law #copyright

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Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.

This one’s a little dry, but it’s secretly relevant to the interests of the majority of readers of this blog. Also, it’s short.

A copyright protects the expression of an idea. For example, an author can write a poem about springtime, and because the text is sufficiently complex, it can give rise to a copyright as long as there’s at least some reasonable amount of creativity (a.k.a., originality) in that text. However, that doesn’t mean the author now owns the idea of springtime; the author owns only the particular expression of it (and all “substantially similar” variations of it). The reason the idea isn’t protected, but the expression is, should be obvious: If an author copyrighted the idea, then no one else could write about springtime during the life of the copyright. The public must be able to discuss springtime. It’s part of life. (Note: This is also why a single word is never sufficiently complex to earn a copyright. If someone could copyright the word, “spoon,” then the public couldn’t discuss spoons for quite some time.) On the other hand, the author’s particular expression of springtime can be copyrighted because there are a seemingly infinite number of ways for the rest of the public to write about springtime. That is, there are many other options that will allow others to write about springtime while still allowing the author the sole right to copy and profit off of their particularly clever and enjoyable expression, as well as any substantially similar variations of it. This is the essence of copyright.

However, what if there aren’t a seemingly infinite number of ways to express and idea, or what if all the other ways to express it are all substantially similar to one another? This is where the merger doctrine comes into play. In such a case, the expression is said to merge with the idea, such that the expression cannot be copyrighted regardless of how complex the expression is, and regardless of whether the author was actually the first person ever to express it. (In the case of my example of a poem about springtime, that was first done long before the concept of copyright existed.) This is an important doctrine for the reason given above: If not for the merger doctrine, in situations where there aren’t a reasonable number of options available to express and idea, then no one would be able to express it as long as that copyright exists. That is, the copyright would effectively extend to the underlying idea itself. Under current law, the term of copyright is far too long in my opinion, but even if the term of copyright were more reasonable, any amount of time to prohibit expression of an idea is too long. Fortunately, the law recognizes that.

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Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.

The First Sale Doctrine #iplaw #law #copyright

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Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.

A copyright is a bundle of exclusive rights, including the right to make copies of an item, However, once someone purchases a copy of a copyrighted work, the purchaser owns that specific copy of that work. For example, if Ann purchases a copy of Bob’s book, Ann may not make copies of that book, but she may resell the specific copy she purchased without fear of infringement.

This gets a bit more complicated with respect to the resale of software. Most software comes with a “shrinkwrap license,” which is a contract packaged with the software. Under the terms of such a contract, just using the software is considered acceptance of the terms of that contract, and those terms indicate that software is merely licensed to rather than owned by the purchaser. If there isn’t actually a sale, then does the “no transfer” clause in the license prevent resale?

In Vernor v. Autodesk, Inc., Vernor was reselling unused copies of Autodesk’s “Release 14” auto-cad software on eBay. In determining that Vernor was a licensee rather than an owner of a copy, the Court developed and applied a three-part test: (i) whether the copyright owner specifies that a user is granted a license; (ii) whether the copyright owner significantly restricts the user’s ability to transfer the software; and (iii) whether the copyright owner imposes notable use restrictions.

Note that this is an exception applicable to digital works. In the context of nondigital, copyrighted works, the first-sale doctrine still applies but may be limited in cases involving illegally obtained goods. If you steal it, you can’t resell it.

Summary

  1. Once you purchase a copy, the First Sale doctrine allows you to dispose of that particular copy as you see fit.
  2. Most software is licensed, not sold, so the First Sale doctrine doesn’t apply.
  3. You can’t rely on on the First Sale doctrine when selling stolen goods.

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Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.

Pinned Post: Looking at My Stats and Revisiting My #RPG #Copyright Posts

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The quarantine has me doing a bit of blogging lately, which means I’m also looking at my stats. With respect to my posts regarding copyright and RPGs:

The posts are broken into two separate issues. Part 1 and part 2 are about the copyrightability of RPG stat blocks, and part 3 (not relevant here) is about the OGL. As to the first issue, to date, part 1 represents ~30% of text by page count and has 17,037 hits (edit 10/20/2020: 17,667 hits), whereas part 2 (70%) has only 704 hits (edit 10/20/2020: 802 hits). Moreover, part 1 spends much of its text on going over basic copyright principles that don’t represent the actual argument. It’s clear by the stats and the basis of the criticism itself (often peppered with personal insults) that the vast majority of (non-lawyer) criticism I’ve received is from people that have read only 30% (at most) of that argument. I know it’s long, convoluted, and at times poorly written (mostly because it targets two very different audiences); and you’re under no obligation to read it (or even care about it). However, it’s all connected, and if you’re going to criticize it, you should probably understand it first.

Or not. Free speech and all that.

Endnotes:

  • Part 3 has only 703 hits (edit 10/20/2020: 849 hits), which is surprising. I thought it would be the most read post.
  • Part 3.5 provides necessary clarification and correction to Part 3.
  • Part 4 answers frequently ask questions and addresses frequently raised issues.
  • Over on a lawyers-only subreddit, the attorneys seemed to want to discuss only my side note on patentability of the Shadow of the Demon Lord initiative system. I guess it’s great that they all agree that my argument is trivially correct, but Rob Schwalb has seriously hijacked my glory. I let him have it when I saw him last February.

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