Thursday, December 27, 2018

Hooray for the Public Domain

For the first time in twenty years, on January 1, 2019, some copyrighted works in the United States will at long last enter the public domain. This is big news, reports Glenn Fleishman for the Smithsonian Magazine in For the First Time in More Than 20 Years, Copyrighted Works Will Enter the Public Domain.

It’s been so long since any copyrighted works have entered the public domain, it’s possible that many of us have forgotten what the public domain even is. 

A work in the public domain can be copied, distributed, modified, and publicly performed by anyone and everyone. You can republish the work verbatim or create adaptations (like Pride and Prejudice and Zombies). It’s the plays of Shakespeare, the music of Mozart, and the adventures of Sherlock Holmes (mostly). The public domain is our shared culture, free to be used and reused by the people at large.

And for twenty years, not a single copyrighted work in the United States has entered the public domain due to the expiration of its copyright term. That’s a long time.

The original Copyright Act (enacted by many of the same people who wrote the American Constitution) provided that all copyrights expired in 14 years. Let that sink in: 14 years. Nowadays, copyrights last the life of the author plus 70 years or 95 years in the case of corporate copyrights. In other words, if a twenty-year-old songwriter pens the next great American ballad, assuming the songwriter lives to be 80 years old, that song would not enter the public domain for 130 years (that is, the year 2,148).

The effect of this gigantic expansion of the terms of copyrights is that more than three quarters all of the culture created in the 20th century is still under copyright and has yet to enter the public domain. The last works to see their copyright terms expire and enter the public domain were published when Warren G. Harding was President of the United States, the roaring ’20s were just getting started, and the Great Depression, World War II, and the atom bomb were still far in the future. 

We are the first generation of Americans not to have free access to the culture of our grandparents, all because of the massive expansion of copyrights.

Finally, that is beginning to change. Unless Congress pulls the rug out from under the American people (again), every year from now on, another year’s worth of twentieth-century copyrights will expire, beginning next year with works published in 1923, and then slowly marching, year by year, through the rest of the century. When these works enter the public domain, they will be available to anyone and everyone to do with whatever their imaginations can think of. I, for one, can’t wait to see what creative people come up with. 

Tuesday, November 27, 2018

The Case Against Patents

You probably already know that patents are monopolies granted by the government that prohibit anyone but the patent holder from making, using, or selling the patented invention for some period of time (twenty years in the United States). Generally, the law frowns on monopolies because they are bad for competition, which usually means bad news for consumers in the form of higher prices and limited supplies, but patents are an exception to the general rule. 

Why’s that? Good question. The theory is that patents provide incentives for people and companies to invent new things and the general public is better off getting access to these innovations, even if it means they have to pay monopoly prices for a couple of decades.

But patents have their critics. Mainly the critics argue that patents don’t generate that many new products or services that wouldn’t have been created even without the government-granted monopoly, and instead nowadays patents are very often wielded as weapons that stifle innovation by threatening lawsuits against companies that are providing valuable services to the public.

Whether patents are good or bad is a complicated question, but PolyMatter has a great video on YouTube that explains the case against patents in a way that’s easy to understand. Whatever your opinion is on patents, the video is worth watching to stimulate your thinking on an important topic.

Link to video: The Case Against Patents - Amazon’s 1-Click “Invention”

Sunday, July 22, 2018

What's a Preliminary Injunction?

It is not at all uncommon for a plaintiff in a lawsuit to ask a court for a preliminary injunction. So, what’s a preliminary injunction?

An injunction is an order from a court instructing a person to do something or to refrain from doing something. For example, say your local zoning board has refused to issue a permit, but you think that under the law you’re entitled to the permit. If a court agrees, it could issue an order to the zoning board commanding the board to give you the permit. That order would be an injunction.

But what about a preliminary injunction? Preliminary means something that comes before the main action or event. In lawsuits, the main event is the trial. So, a preliminary injunction is an injunction that a court issues before trial.

It sounds simple, but this is actually somewhat surprising and kind of a big deal. Why? Because the trial is when the court decides who wins and who loses the case. Issuing a preliminary injunction means that the court is ordering someone to do something, even though who will be the ultimate winner and loser is still up in the air.

Everyone is entitled to their day in court, and it’s kind of unfair to treat someone like they’ve already lost before they had a full hearing. Nevertheless, sometimes preliminary injunctions are necessary to make sure that the court’s decision in a case has a real impact and doesn’t become just an academic exercise.

Imagine, for example, that the city has decided to build a freeway through the middle of your house. You like your house and would very much prefer not to have cars traveling at high speeds through your living room. So, you sue the city, but you have a problem. The city’s bulldozers are on their way to knock your house down, and your trial is still a year away. What to do?

You guessed it. The answer is to get a preliminary injunction and have the court order the city to stop its bulldozers from flattening your house. The court order keeps your house standing until a trial can sort out whether the city has the right to knock it down.

In other words, the purpose of a preliminary injunction is not to give one side an advantage over the other, but rather to preserve the parties’ positions until a trial can figure out who is right under the law. Because preliminary injunctions have a tightly defined purpose and because they ask the court to take a significant action without the benefit of a trial and a final judgment, preliminary injunctions are hard to get. Courts have described them as an “extraordinary remedy” that will be granted only if certain conditions are met.

What are those conditions? I’m glad you asked. There are four.

First, the plaintiff must show a likelihood of success on the merits. In other words, the plaintiff must show that she is likely to win the case when she gets to trial. People with weak cases don’t get preliminary injunctions.

Second, the plaintiff must show that, without the injunction, she will suffer irreparable harm. A harm is irreparable if there is no way for it to be fixed later. If a bulldozer knocks down your house, there is no way to put the house back together again just as it was.

Lots of injuries can be fixed by money. But some things are unique, and the irreparable harm idea is to give protection to things that once lost or broken can never adequately be repaired.

Third, the plaintiff must show that the balance of the equities tips in her favor. This is a fuzzy concept, but it gets at the idea that if the plaintiff has acted badly or has created the problem herself in some way, then she doesn’t deserve extraordinary help from the court in the form of a preliminary injunction.

For example, if the plaintiff hastily constructs a shack directly in the path of the city’s bulldozers, a court might decide that the danger to the structure was self-inflicted, and so the equities tip against giving the plaintiff a preliminary injunction.

Finally, the public interest must support the issuance of the preliminary injunction. This factor is also a little squishy, but it gets at the idea that in some cases, more people than just the parties to the lawsuit have an interest in the outcome, and since a preliminary injunction is an extraordinary remedy, the court should only issue one if doing so is in the public interest.

So, what’s a preliminary injunction? It’s an extraordinary order from a court, issued before trial, commanding a party to take an action or to refrain from taking an action that can be obtained only by showing (1) a likelihood of success on the merits, (2) irreparable harm, (3) the balance of the equities, and (4) the public interest.

And that’s it. If you had ever wondered what a preliminary injunction was, now you know .

Saturday, June 23, 2018

How to Start a Lawsuit in Federal Court

How do you start a lawsuit in federal court? The answer is given in Federal Rule of Civil Procedure Number 3.

Federal Rule of Civil Procedure Number 3 is short and sweet: “A civil action is commenced by filing a complaint with the court.”

Yet in this one sentence, there is a lot going on. Let’s unpack it.

“A civil action” is a lawsuit that does not seek criminal penalties, like fines or imprisonment. Usually, civil actions are between private parties, but governments can also bring civil actions and have civil actions brought against them.

Typical civil actions are claims for breaches of contracts—that is, where one party fails to perform a promise—or for torts—that is, where one party injures another party, either by accident or on purpose, like, for example, in a car accident.

How does one commence a civil action, or in other words, how do you start a lawsuit? As explained in Rule 3: by filing a complaint with the court.

“Filing … with the court” usually means going to the courthouse, finding the clerk’s office, and delivering the necessary paperwork, and of course, paying the required filing fees. Recently, electronic filing is becoming increasingly available, so trips to the court house may not be necessary for much longer.

And what is it that you have to file with the court to get your civil action going? Rule 3 has the answer for that as well: A complaint.

That’s … not very illuminating. What’s a complaint, you might ask? Good question.

A complaint is a written document, and it’s the way the plaintiff in a lawsuit notifies the court and the defendant of why the plaintiff is bringing the lawsuit. Complaints have three main parts.

First, complaints contain allegations. Allegations are the plaintiff’s version of events. At this point in the process, a plaintiff doesn’t have to offer any proof that the allegations are true. The plaintiff merely asserts that the allegations are true. Proof of whether the allegations are true or not will come later in the process.

Second, complaints contain claims. Claims are the legal grounds that justify the plaintiff’s lawsuit. These theories could be anything the law allows, including lawsuits for breach of contract or negligence, but also violations of anti-discrimination or antitrust laws, or anything else authorized by the legislature or the courts. By the way, “claims” are , also sometimes called causes of action, a name that makes sense because the claim is what causes the action, which is another name for lawsuit.

Finally, complaints contain prayers for relief. The prayer for relief describes what the plaintiff hopes to get out of the lawsuit. Usually, plaintiffs want damages, which is another word for money. Sometimes, plaintiffs also want injunctions, which are court orders compelling the defendant to do something or to refrain from doing something. There are other remedies available, but damages and injunctions are the big ones, so a discussion of other remedies will have to wait for another time.

And … that’s about it. To recap, Federal Rule of Civil Procedure 3 requires civil actions to be commenced by filing a complaint in court. Complaints have three parts: allegations, claims, and prayers for relief.

And with that simple piece of paper, your lawsuit is off and running.