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NEWS RULINGS VERDICTS

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Wednesday, March 26, 2014
Litigation
Narrow ruling brings cases against Bryan
Cave back to life
Two legal malpractice lawsuits seeking more than
$100 million from the firm may be revived
following a 9th U.S. Circuit Court of Appeals
reversal of a district court's dismissal of the cases.
Class counsel seek mediation to resolve
Kozinski's objection
In the latest complication caused by the 9th U.S.
Circuit Court of Appeals Chief Judge Alex
Kozinski's objection to a settlement, attorneys for
the class requested he and his wife take their
complaint to mediation.
Intellectual Property
The Alexandrian solution to copyright
reform
Let the slogan of copyright reform be: "Authors.
Nothing Else Matters." By Corey Field
Product Liability
Football helmet maker defeats product
liability trial
After just 20 minutes of deliberation Thursday, a
Los Angeles jury unanimously delivered a defense
verdict in favor of Riddell Sports.
Judges and Judiciary
Court leaders want $70M more to cover dip
in receipts
A drop in judicial branch revenue could be a sign
that increased user fees and fines have deterred
would-be litigants from using state courts, judges
said Tuesday at a Judicial Council budget advisory
committee meeting.
Mergers & Acquisitions
Fenwick, Bingham, Goodwin advise in $2B
Facebook buy
Fenwick & West LLP advised Facebook Inc. in its
$2 billion acquisition of Irvine-based virtual reality
technology developer Oculus VR Inc. in a deal
announced late Tuesday.
Government
San Diego courts warn of scam
The San Diego County Superior Court is warning
the public to be on guard against fraudsters
pretending to be officials or police and threatening
fines or arrest warrants.
Mergers & Acquisitions
Latham, Bingham handle $500 million sale
of Maker Studios to Disney
The deal includes an earn-out of up to $450
million, which could lead to a final price tag as
high as $950 million if Maker hits undisclosed
performance milestones.
California Courts of Appeal
Appellate court's burglary ruling
questioned
A defendant may be convicted of multiple counts
of burglary for entering different rooms in the
course of a crime, a state court of appeal has ruled.
THURSDAY FRIDAY MONDAY TUESDAY TODAY
Corey Field is the principal
author of the treatise
"Entertainment Law: Forms
and Analysis" published by Law
Journal Press, New York. He is
a former president of The
Copyright Society of the U.S.A.,
and teaches a class at UCLA
Extension titled "Copyright Law
in the Entertainment Industry."
He is of counsel at Ballard
Spahr LLP. Follow Corey on
Twitter: @copyrightnotice.

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The Alexandrian solution to copyright
reform
Thirty-two thousand years
ago, in the Chauvet Cave, in
today's southern France, an
artist poured forth his or her
creative soul in stunning
depictions of the prehistoric
world on a cave wall. In a
creative work of art as great as
any created since, herds of
animals, pursued by a pride of
lions, move in three-dimensional
shadow and stroboscopic
animation, shifting in
perspective, disappearing and
reappearing from undulating
rock, graceful, present, and as alive now as they were twenty-seven thousand years
before the Great Pyramid was built.
Present that long ago night was everything the law still regards as a copyrightable
work: originality, tangible expression, and above all, an author.
Copyright, the unique law that seeks to regulate the works of the human imagination,
and to give legal rights to authors, thus has deeper roots in our collective human soul
than we dare imagine. Copyright's current legal principles are not so far from what the
first artist in the cave teaches us: create something extraordinary, beautiful and
meaningful; put it into a tangible form that can capture the imagination of others and
communicate with your fellow mankind; and protect the author of that creation.
While those first principles of copyright are, perhaps surprisingly, very much part of
the current Copyright Act, they have become increasingly subservient to other
exigencies. Vast portions of copyright law exist not to serve the prime creative mandate,
but to accommodate divergent business and legal interests, effectively bringing
complex commercial agreements to Congress to codify as complicated law. The Register
of Copyrights has rightly called for congressional studies on copyright law reform.
Copyright law today is a "Gordian Knot," a metaphorical impossible problem to solve,
in need of an Alexandrian solution. When presented with an impossible knot that held
an ox-cart to a column in the Palace of Gordium, Alexander the Great knew the legend
that he who could untie the knot would rule the world. Depending on which historian
you read, Alexander either cut the rope with one mighty blow of his sword, or loosened
the peg holding the cart's yoke, letting the knot gently fall away. Either way, he thought
outside the box, and we still admire him for it. His secret was his devotion to one goal:
rule the world; nothing else matters.
What in copyright law is the "one goal" equivalent that can guide reform? What
matters above all else is humans who create things that make our world better and
more beautiful. Let the slogan for copyright reform be "Authors. Nothing Else Matters."
If we protect authors, they will be the spokespersons for humanity and amaze us with
what they create, because the cave also teaches us that it is inherent in our species to do
so, given the opportunity.
I offer a fantasy list for copyright reform that in part both acknowledges and ignores
how copyright law, antitrust law and business models currently work. Based on the
mantra "Authors. Nothing Else Matters," it is designed to greatly benefit the entire
copyright industry, though as presented here, drastically reimagined and restructured.
The Return of the Celestial Jukebox: Recognize that technology is far ahead of
the law, and harness that technology. Private corporations and licensing organizations
are well on their way towards establishing digital IDs, recognition and fingerprinting
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Antitrust & Trade Reg.
Tech giants seek to throw out high-stakes
antitrust case before trial
Attorneys for Google, Apple, Adobe and Intel will
try to convince a judge that the plaintiffs don't
have the evidence to prove the claims, and they'll
try to disqualify an expert witness along the way.
Investments
Goodwin Procter helps Hortonworks with
$100M funding round
Goodwin Procter LLP represented data analytics
software developer Hortonworks Inc. in a $100
million funding round led by BlackRock Inc. and
Passport Capital LLC
Obituaries
Ivan Louis Klein: 1938-2014
Former deputy Los Angeles County public
defender and veteran criminal defense attorney
passed away after battling cancer for the past year.
Insurance
Reflecting on policy interpretations for
'additional insureds'
For years, courts have been grappling with when
an insurer must provide a defense for an additional
insured. By Rex Heeseman
Technology & Science
Top level domain name pickiness will pay
off
In the coming months, it is expected that there will
be hundreds of new generic top level domains
available for use on the Internet (e.g., .menu,
.clothing, .coffee). By Simone M. Katz-O'Neill
Corporate
A corporation's right to free exercise
To say that corporations can form moral views
about ethical or environmental concerns, but not
about religious ones, flies in the face of logic. By
Michael W. Caspino and Domenic DiNoto
Litigation
Tactic to sidestep medical damages limits
shutdown
Last month, the 2nd District threw a roadblock in
the way of a particular maneuver intended to avoid
limits on medical expenses that plaintiffs can
recover. By Barry Rodloff
Judicial Profile
Matthew C. Perantoni
Superior Court Judge Riverside County (Riverside)
Law Practice
Law firms increasingly look to outside
talent in executive hires
Top firms are actively recruiting managers - many
of them nonlawyers - to help run what are
increasingly billion-dollar global businesses,
industry watchers say.
for tracking copyrighted works online. Media and technology companies are creating a
vast, privately held digital proprietary map of the copyright world. Soon it will be
possible to digitally recognize any and every copyrighted work and how it is used. If all
these competing databases were unified (perhaps by Congress), we could have one
master index for every copyrighted work which we could use to register and track
owners, licensing by them, and payments to them - let's call it the Digital Galactic
Jukebox (DGJ).
The Single Source: Eliminate the distinction between content and pipes. If one
organization controls both the copyrights and the digital distribution, the financial
incentives are unified and there are no technological gimmicks to avoid revenue share.
It is a state run or privately run one-source money machine for authors. The percentage
of overall revenues set aside for authors of content is 25 percent, also eliminating the
need for a Copyright Royalty Board absent competing market segments.
Compulsory Licensing: Compulsory licensing works when it allows unfettered
use in exchange for set fees. Consider it a copyright tax - paid in either one lump sum,
or individual payments. A pure compulsory license regime would ensure payment for
every single use of every copyright, thus that which is lost in negotiation would be
gained in overall revenue. The DGJ would either charge a universal flat fee to be
divided up in micro accountings, or pay-as-you-use plans. Ten percent of all hardware
sales would go into the author royalty pool.
Representation and Publishing: Authors can either represent themselves or
license or assign their rights to third parties whose job it is to promote uses of their
client's works. With many of the distribution and royalty functions of the copyright
world taken care of by the DGJ, the new era publishers will concentrate on promotion
and development. Their percentage would be limited under the law to 10 percent of the
author's revenue.
Fair Use: Fair use discount rates are available, but only for those who register with
the government as bona-fide fair use outlets: critics, commentators, news reporters.
Use all you like and get a steep discount. But even news outlets and documentary films
still pay a reduced compulsory rate on the DGJ.
Derivative Works: Musical and visual arts derivative works are subject to a
compulsory license. Market forces would ensure that lousy derivative works would fail,
great derivative works would succeed. Authors would receive 75 percent of all derivate
work revenues, with the creator of the derivative work receiving 25 percent.
Dramatization: Carve out permission to create derivative works in the categories
of motion pictures and television and dramatization, including live stage. Authors
would decide who gets a license for those properties. To ensure an incentive for
negotiating advances, once the author grants the right to create the dramatization, the
author receives 25 percent of the revenues, the production company 75 percent in
recognition of the greater costs involved.
Opt Out: Retain the Creative Commons system whereby authors can digitally tag
works for free use, if they so choose.
Physical Merchandise: Physical goods are subject to the same government-
controlled royalty scheme, but with recognition of the manufacturing and distribution
costs. Authors receive a statutory 25 percent of wholesale revenues, or 12.5 percent of
retail revenues for any manufactured goods.
Infringement: Digital infringement would greatly decrease because those using the
DGJ without payment would lose their connection and service immediately. In the case
of physical goods, penalties are tied to what the author would have received under the
compulsory/statutory scheme, times an appropriate multiple. There would still be a
place for litigation, for disputes between authors and their co-authors or
representatives, but fines would cover most transgressions.
Streaming vs. Download: Whether a work was streamed over time or
downloaded is irrelevant; the use triggers a payment. The payments would be small and
uniform, so the drivers of consumer choices are convenience and better technology
offered by the DGJ.
The Berne Convention and Registration: The DGJ would not violate the Berne
convention. Foreign works would not have to do anything more than they currently do
to enjoy projection in the U.S. Registration would become unnecessary because the
metadata on all works in the DGJ would be freely available and infringers would be
automatically fined or kicked off the DGJ.
Orphan Works: With usage payments, standardized infringement is eliminated.
Where authors or their heirs don't claim their revenue share, the money goes back into
the pot after four years.
Software: The App Store model, but as part of the DGJ.
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Ownership Issues: Co-authors; Works Made for Hire: With compulsory
revenue share there is no incentive for termination of copyright by authors, because any
post-termination GDJ deal would not differ or improve. But work-made-for-hire
principles would still be useful, for example for the works that qualify as "made for
hire," there would be a set royalty pool of 50 percent of revenue for authors (similar to
the producer share of net profits commonly used in the film business), divided up based
on individual agreements. Where works are not "made for hire," co-authors must split
the author share equally.
Digital Millennium Copyright Act: Not needed because there are no competing
business interests, only the DGJ which pays all. No red flags, no notices, only
protection of authors and payments to them.
No client or firm or any lawyer I know, (and not even I, necessarily) subscribe to
these proposals; they are offered in the same spirit as "Gulliver's Travels" by Jonathan
Swift: part satire, part thought-provoking, parts possible and impossible, but ultimately
for entertainment purposes. Unless of course Congress is listening.
Corey Field is the principal author of the treatise "Entertainment Law: Forms and
Analysis" published by Law Journal Press, New York. He is a former president of The
Copyright Society of the U.S.A., and teaches a class at UCLA Extension titled
"Copyright Law in the Entertainment Industry." He is of counsel at Ballard Spahr
LLP. Follow Corey on Twitter: @copyrightnotice.
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