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Copyright and the Public Domain on Trial

A recent article in the New York Law Journal reports on a class action complaint, Good Morning To You Productions Corp. v. Warner/Chappell Music, Inc., filed in the Southern District of New York where ownership of the well-known song “Happy Birthday to You” is under dispute. The plaintiff company, which is producing a documentary about the song that dates back to before 1893, is seeking a declaration that the tune is in the public domain and not subject to copyright protection. During production, the plaintiff company learned that the defendant claimed exclusive copyright ownership of the song. The defendant charged a license fee of $1,500 to use the song which the plaintiff paid. The defendant is alleged to have threatened legal action against the plaintiff seeking penalties of $150,000 under the Copyright Act if it used the song without permission.

This prompted the lawsuit which argues that the defendant “either has silenced those wishing to record or perform ‘Happy Birthday to You’ or has extracted millions of dollars in unlawful licensing fees from those unwilling or unable to challenge its ownership claims.” In addition to seeking a declaration that the song is in the public domain, the complaint asks for the return of the $1,500 licennse fee that it paid plus millions of dollars collected over the years for what it calls “the world’s most popular song.”

The past year has seen other complaints looking to declare famous works as being in the public domain.  See Klinger v. Conan Doyle Estate, Ltd about the stories of Sherlock Holmes filed in the Northern District of Illinois and Cabell v. Zorro Productions, Inc. about the stories of Zorro filed in the Western District of Washington. For more on the subject of public domain and copyright law, see the Brooklyn Law School Library copy of The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More by Stephen Fishman. The guide explains the law and identifies problems and gray areas. It also covers trademark and patent law as they might conflict with copyright.

Westlaw Free Printing to End

Westlaw Logo

Westlaw will end their support of dedicated printers in law schools as of June 30, 2013.  For BLS students and faculty this means that we will no longer have dedicated printers in the library as of June 24, 2013.  Students may still print Westlaw documents by sending them to the networked printers throughout the library using their Pharos accounts.

An alternative to printing is to use the folders that are available in WestlawNext to store documents.  Folders on WestlawNext help you organize and manage your research.  Access to the folders is through a link in the upper right-hand corner of WestlawNext.  WestlawNext folders may also be shared with other members of the BLS community.  If you have questions about using folders in WestlawNext, please speak to a reference librarian.

Free printing in LexisNexis is still available on the dedicated Lexis printers in the Lexis lab on the second mezzanine and in the cellar.

New tool to develop paper/note topics: Law Ratchet

Law Ratchet is a free, searchable aggregator of legal news and blog posts.  At present, there is both a Law Ratchet website and an iPad app (displays well and is easy to edit).  The FAQs indicate that the developers are working on  adding offline access and expanding to other platforms (like Android phones).

You can customize Law Ratchet’s 40+ legal news categories through its EDIT feature.  Categories include: trending topics, top 25 blogs, law school, and the legal industry.   There are also subject categories such as international, policy and politics,  corporate law, commercial law, immigration law, and law and technology.  In some cases, Law Ratchet is reproducing blog posts in full.  In other cases, it provides summaries of posts and directs readers to, for example, specific legal blog sites.

I think that this will be a useful source for note and paper topic development.

 

 

Summer Reading: Something New or Something Old?

Summer is often a time for law students and others to catch up on their non-school or non-work related reading.  If you are looking for some summer reading, while maybe not actually lighter fare, there are three locations in the library that might offer some interesting selections.

The library orders, receives and processes hundreds of new books each year.  A new book list is posted on SARA, our online catalog, every two weeks.  A few of the books from each list are displayed on the new book shelf on the first floor circulation desk.  Two new books shelved there which might be of particular interest to law students:

Another source for fining out about new books in the library is the bulletin board in the entrance to the cellar displaying new book jackets.  A couple of the book jackets currently on display deal with the Supreme Court:

If you are a history buff, you might want to read some of the titles that are housed in our rare book collection. While the rare books do not circulate out of the library, they may be borrowed from the rare book cabinets located on the second floor, second floor mezzanine and the third floor to read in the library.   A few rare books of possible interest:

These three books and many others in the rare book collection are also available electronically through our Making of Modern Law Collection or in HeinOnline.  Enjoy your summer!

112th BLS Commencement at Lincoln Center

Brooklyn Law School held its 112th Commencement Ceremony on Friday, June 7 at Lincoln Center’s Avery Fisher Hall. With more than 450 law students receiving either a Juris Doctor or a LL.M degree, the Class of 2013 was one of the school’s largest graduating classes before enrollment began declining after the worst economic downturn since the Great Depression. Joseph Binder, Class Valedictorian and one of five students graduating summa cum laude, made reference to ongoing doubt about the future of the profession in his comments but also noted that his fellow students, from all different backgrounds, shared a common commitment to growth, change, and community and could use the values and skills that they developed and apply them to whatever challenges lie ahead. Other summa cum laude graduates were Joshua Gerber, Kate Olivieri, David Passes, and Noam Weiss. The complete list of students graduating with honors is accessible here. A list of Commencement Prizes and Awards for the Class of 2013 is available here.


The 2013 Commencement Speaker, Kenneth Feinberg, the lead attorney who oversaw settlement payouts after disasters including the attacks of 9/11, the Virginia Tech shootings, and the Aurora, Colorado movie theater shootings, reminded the graduates that they are all members of a noble profession and that the “public interest” lies at the heart of it. He cited the Law School’s nationally acclaimed Sparer Public Interest Law Fellowship Program as an example of law students working in the public interest. Advising the graduates not to be afraid to avoid the safe path, the easy road, the comfortable option, Feinberg urged them to take chances, reinforced by the knowledge that they are entitled and expected to do so because of the diplomas that they earned. He said “I use my law degree every day to strike out in new directions, to pursue the unfamiliar road. Today, your law degree affords you the same opportunity, to ignore fear of failure, to be bold, to be pioneers and innovators in using the law to better our nation and the world.”

In closing, Feinberg quoted Supreme Court Justice Oliver Wendell Holmes’ remarks in 1886 to undergraduate law students at Harvard:

To those who believe with me that not the least godlike of man’s activities is the large survey of causes, that to know is not less than to feel, I say – and I say no longer with any doubt – that a man or woman may live greatly in the law as well as elsewhere; that there as well as elsewhere he may wreak himself upon life, may drink the bitter cup of heroism, may wear his heart out after the unattainable. 

The full text of Holmes lecture is at this linkavailable through the BLS Library subscription to HeinOnline.

Overcriminalization

A recent New York Law Journal article, Overcriminalization of Non-Violent Conduct: Time for Real Reform by attorneys Robert J. Anello and Richard F. Albert, examines the proliferation of federal criminal laws and the resulting increase in the federal prison population, approximately 40% above capacity, costing taxpayers almost $7 billion a year, almost 30% of the Justice Department’s budget. The article cites Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, which is available in the SARA, the Brooklyn Law School catalog. With Congress adding an average of 500 new crimes to the books in each of the past three decades and the addition of  tens of thousands of regulations with criminal penalties, many without traditional mens rea or criminal intent, critics contend that these newly created crimes violate fundamental principles of fair notice, and subjects individuals to criminal punishment for conduct that they do not know is illegal.

The article points to a number of proposed remedies including legislative reform and judicial reform. See the Justice Safety Valve Act of 2013 and United States v. Goyal, 629 F.3d 912 (9th Cir. 2010) where the U.S. Court of Appeals for the Ninth Circuit reversed a corporate CFO’s fraud conviction finding that no reasonable jury could have found the defendant guilty beyond a reasonable doubt.

For more on the subject, see the BLS Library copy of Overcriminalization: The Limits of the Criminal Law (Call #KF9223 .H87 2008) by Douglas Husak who argues that the U.S suffers from too much criminal law and too much punishment. The author notes that most Anglo-American legal philosophers have neglected the topic and argues that many of the resources to reduce the size and scope of the criminal law can be derived from within the criminal law itself, even though these resources have not been used explicitly for this purpose.

Eminent Domain, Just and Unjust Compensation

Brooklyn Law School Assistant Professor of Law Brian Lee has posted Just Undercompensation: The Idiosyncratic Premium in Eminent Domain on SSRN. The full text of the article appears at 113 Columbia Law Review 593 (2013). The abstract reads:

When the government exercises its power of eminent domain to take private property, the Fifth Amendment to the U.S. Constitution requires that the property’s owners receive “just compensation,” which the Supreme Court has defined as equal to the property’s fair market value. Today, a well-established consensus exists on three basic propositions about this fair market value standard. First, the standard systematically undercompensates owners of taken property, because market prices do not reflect owners’ personal valuations of particular pieces of property. Second, this undercompensation is unfair to those owners. And third, an appropriate way to rectify this problem is to add fixed-percentage bonuses to the amount of compensation paid. Several states have recently enacted laws requiring such bonuses, and prominent academics have endorsed their adoption. This Article, however, argues that all three of these widely accepted propositions are false. First, examining the economics of market-price formation reveals that fair market value includes compensation for more subjective value than previously recognized. Second, much of what market value leaves uncompensated should not, in fairness, receive compensation. Third, although justice may require paying compensation above fair market value in certain situations, this Article argues that the solution favored by academics and recent state legislation is itself unjust, undermining the civic and moral equality of rich and poor property owners by relatively overcompensating the rich while undercompensating the poor for losses which have equal value to rich and poor alike. The Article concludes by showing how an alternative approach can avoid these fairness problems.

Authorship Attribution

Brooklyn Law School Professor Lawrence Solan has posted Intuition versus Algorithm: The Case of Forensic Authorship Attribution on SSRN. The article, which will appear in an upcoming edition of the Brooklyn Journal of Law and Policy, originated in the Authorship Attribution Workshop held last October at Brooklyn Law School. The program for the workshop stated “It is not unusual for a legal case to depend on who wrote a particular document. The question has arisen in many high-profile cases, such as identifying the author of the Unabomber Manifesto, and the ransom notes in the JonBenét Ramsey murder case and the Lindburgh baby kidnapping and murder case. It arises in many less-celebrated criminal and civil cases on a regular basis.”

The abstract for the article, the full text of which is not yet posted, reads:

This article addresses a nagging issue in the field of scientific evidence: What should the legal system do when experts developing a statistical approach to forensic identification are making good progress, but are not provably more accurate than experts who make judgments, often convincing judgments, based upon the their analysis of the specific facts of each case? That is the state of affairs in the field of authorship attribution: Computer scientists and computational linguists develop and test their models while a group of forensic linguists continues to testify in cases without mathematical checks on their conclusions. The legal system rightly prefers algorithmic expertise over intuitive expertise, but when it is not clear that the algorithms do a better job, the question becomes more difficult. The article discusses the psychological literature on the question of algorithm versus intuition and applies it to authorship attribution. It concludes that the insights of the intuitive experts, sometimes called practitioners of forensic stylistics, may have a great deal to contribute to the models created by the computational experts; that practitioners of stylistic comparison have an obligation to conduct far more research into the accuracy of their methods, including, in the short-run, proficiency testing; and that a healthy combination of cooperation and competition is gradually leading to improvements in the field and convergence around those methods that prove successful.

Class Action Fairness Act

In Abraham v. American Home Mortgage Servicing, Inc., Brooklyn Federal Judge William F. Kuntz II of the Eastern District of New York ruled against several hundred current and former homeowners rejecting their mass action attempt, finding that they were joined improperly. The defendants were several dozen mortgage originators and servicers including MERSCORP Holdings Inc. Plaintiffs alleged that the defendants induced them to enter into mortgages based on inflated appraisals; purposefully avoided local recordation statutes, thereby clouding the plaintiffs’ titles; transferred, bundled, packaged and sold their mortgages to investors simultaneously betting against those mortgages; and failed to use Troubled Asset Relief Program, or TARP, funds to help the plaintiffs, as required under law. The suit originated in New York Supreme Court, Kings County, in May 2012 but one of the defendants had the case removed to the federal court under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(11)(A)

Judge Kuntz rejected the mass action attempt by the plaintiffs, finding that they were joined improperly. A “mass action” is defined as any civil action in which monetary relief claims of 100 or more persons are proposed to be tried together on the grounds that the plaintiffs’ claims involve common question of law or fact. “According to the allegations in the complaint, Plaintiffs engaged in separate loan transactions with different lenders in different offices in different states over a nine-year period. It is well established that separate loan transactions by different lenders do not constitute a single transaction or occurrence and claims by plaintiffs who engaged in those separate transactions generally cannot be joined in a single action,” Kuntz wrote. “Indeed, even claims by plaintiffs who engaged in separate loan transactions by the same lender cannot be joined in a single action.

Judge Kuntz also ruled that the plaintiffs failed to plead “sufficient factual matter” to state a claim to relief that is “plausible on its face.” “Plaintiffs appear to argue that their claims arise out of a common series of transactions because ‘Defendants were involved in a common scheme and plan,’” Kuntz wrote. “Plaintiffs have not provided any factual allegations supporting these contentions, such as evidence that Plaintiffs’ individual mortgages were based on inflated appraisals or specific omissions by particular employees responsible for issuing Plaintiffs’ mortgages.

See Brooklyn Law School Library’s copy of A Practitioner’s Guide to Class Actions by Marcy Greer ( Call #KF8896.P735.2010) for more on the subject of class actions. This comprehensive guide provides practitioners with an understanding of the intracacies of the class action lawsuit.