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My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Friday, May 30, 2008

Defense briefs in "Imagine" suits

Time is running out for decisions on whether to issue preliminary injunctions in the lawsuits against use of the song "Imagine" in "Expelled." I was sure that there would be decisions this week, but this week has come and gone. If the temporary restraining orders in the lawsuits apply to Canadian theatres, then the judges need to either poop or get off the can very soon because the movie is scheduled to open in Canada on June 6 and the theatre owners need to know very soon. How in the hell can the theatres even advertise "Expelled" as a coming attraction if they don't know if it can open on schedule.

While waiting for the decisions of the courts, I decided to while away the time by commenting on the defense briefs. The federal-court defense brief is here and the state-court defense brief is here. Many of the arguments are the same in both briefs. I will just comment on the state-court brief here -- I may comment on the federal-court brief later.

The state-court defense brief says,
.
Plaintiffs impliedly acknowledge the First Amendment necessity of the fair use defense by asserting fair use "subsumes and supplants independent First Amendment analysis." Pl. Memo at 9 n. 3. This is simply another way of saying that fair use protection is essential to keep common law copyright protection from triggering First Amendment concerns. (page 15 of pdf, page 9 of document).

I disagree with both the plaintiffs and the defense here. As for the plaintiffs' statement, there is of course no "independent" First Amendment analysis because that analysis must be part of or incorporated into the fair use analysis. As for the defense statement that fair use protection prevents copyright protection from "triggering" First Amendment concerns, of course attempts to enforce copyright protection trigger First Amendment concerns unless there is blatant market-substitution.

Also, the state-court defense brief has a lot of argument that "Expelled"s use of "Imagine" is "transformative." However, to me the term "transformative" means that the borrowed work is altered, and "Expelled" did not alter "Imagine." My interpretation of "transformative" is supported by a footnote in the brief:

In Campbell, the US Supreme Court explained that Sony's presumption of market harm is limited to situations where the secondary work "amounts to a mere duplication of an original" and does not apply to situations where "the second use is transformative." Campbell, 510 U.S. at 591. (footnote, page 23 of pdf, page 17 of document)

The plaintiffs have their own strange meaning of "transformative":

Plaintiffs contend transformation turns on whether using "copyrighted material was necessary to the asserted purpose of criticism [or] comment" and go on to observe that it was not strictly necessary to use the clip of Imagine in the Film.(page 19 of pdf, page 13 of document)

"Not strictly necessary"? King Lear said in Shakespeare's play,

O reason not the need! Our basest beggars
Are in the poorest thing superfluous.
Allow not nature more than nature needs,
Man's life is as cheap as beast's. Thou art a lady:
If only to go warm were gorgeous,
Why, nature needs not what thou gorgeous wear'st,
Which scarcely keeps thee warm. But, for true need--
You heavens, give me that patience, patience I need.
You see me here, you gods, a poor old man,
As full of grief as age, wretched in both.

The state-court defense brief says,
Plaintiffs also complain the public is confused about whether Imagine was licensed for use in the Film, and this confusion is causing harm to its reputation based on accusations from internet bloggers that Plaintiffs "sold out" the legacy of John Lennon by permitting it to be used in the Film . . . . But any such "confusion" was the result of false accusations by internet bloggers, which was corrected in any event. See McMullan Dec. Ex. A (Wall Street Journal story stating filmmakers did not have permission to use the song). Any harm those false accusations created was inflicted by the authors of them, not Defendants, and Plaintiffs fail to explain how the injunction they request would undo that harm in any event. It is simply not Defendants' fault that bloggers do not understand the law permits some unlicensed uses of copyrighted material, and this fact should neither undermine Defendants' rights nor support an injunction pending the resolution of those rights in this dispute.(pages 27-28 of pdf, pages 21-22 of document)

The plaintiffs did not claim that the false accusations by the internet bloggers were the sole cause of alleged harm to reputation -- the plaintiffs also claim that listing "Imagine" in the credits at the end of the movie also gives the false impression that permission to use the song was granted.

The plaintiffs' claims of damage to reputation might have some validity if protecting reputations of songs and songwriters were one of the purposes of copyright law, but as I show here and here, that is not one of the purposes of copyright law.

As for the statement "It is simply not Defendants' fault that bloggers do not understand the law permits some unlicensed uses of copyrighted material," there is a strong possibility that these unscrupulous BVD-clad bloggers were aware of this but just didn't care whether their accusations were true or not. Congress is poised to grant the "reporter's privilege" to these same unscrupulous BVD-clad bloggers.

Also, if the courts accept this argument about alleged damage to reputation, that would mean that the courts accept the idea that giving permission to use a copyrighted work can properly be interpreted as endorsement of the borrowing work, and IMO that is a very bad idea.
.

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5 Comments:

Anonymous 'Nonymous said...

< Defense Briefs >

Are those like Depends(tm), or more like BVDs?

Friday, May 30, 2008 9:31:00 PM  
Blogger Larry Fafarman said...

>>>>>Are those like Depends(tm), or more like BVDs? <<<<<<

And you ought to be served a well-used Depends(tm) brief for dinner.

Actually, the titles of the defense briefs are "Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion for Preliminary Injunction."

In my lawsuits against the infamous California "smog impact fee," I titled my very first responding brief an "objection" to the name of the EPA's answer to my complaint (I don't remember the title of the EPA's answer) and the EPA's attorney scoffed at that title, but really, what is wrong with it? It is short and to the point. I got the title from watching courtroom TV dramas where attorneys would suddenly leap to their feet and angrily shout "OBBBBB-JEK-shun" at the judge.

The 9th Circuit federal court of appeals prescribed official titles for the main briefs of appeals: Appellant's Opening Brief, Appellee's Answering Brief, and Appellant's Reply Brief. Also, the court prescribed colors for the covers of these and other kinds of briefs.

Saturday, May 31, 2008 2:33:00 PM  
Anonymous 'Nonymous said...

< Also, the court prescribed colors for the covers of these and other kinds of briefs. >

See? :-)

Saturday, May 31, 2008 11:38:00 PM  
Blogger JJS P.Eng. said...

Thanks for the update on the case, Larry.

Off topic, could I ask you for a favour? I'm in a debate on my blog, and the issue of the establishment of character is one of the main points. Am I legally correct with what I said in the 2nd paragraph of this comment?

Sunday, June 01, 2008 2:19:00 PM  
Blogger Larry Fafarman said...

JJS P.Eng. said...

>>>>>> I'm in a debate on my blog, and the issue of the establishment of character is one of the main points. Am I legally correct with what I said in the 2nd paragraph of this comment? <<<<<<

I am cross-posting this response on your blog.

OOPS. At first I misunderstood your question -- I thought that you were asking about Roger Paull's credibility as a witness in court. You confused me by saying on your blog,

"I may not be a lawyer, but as a potential juror, those commendations and reviews (which leave a paper trail that can be traced) establishes reliability and trustworthiness of his testimony, unless it can be shown otherwise. Once character is established, it is up to cross-examination to poke holes in the character."

I later discovered that this is not about being a witness in a court. Since he was not testifying under oath, your question is not really a legal question. However, by the time I realized this, I had gone through the following long legal analysis, so I am presenting this legal analysis here anyway.

States may have their own rules regarding testimony by witnesses. The federal rules for testimony by witnesses are contained in Article VI, Article VII, and Article VIII, and parts of Article IV of the Federal Rules of Evidence:

ARTICLE IV. RELEVANCY AND ITS LIMITS

- - - - -

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes
Rule 405. Methods of Proving Character
Rule 406. Habit; Routine Practice

- - - - - - - -

ARTICLE VI. WITNESSES

Rule 601. General Rule of Competency
Rule 602. Lack of Personal Knowledge
Rule 603. Oath or Affirmation
Rule 604. Interpreters
Rule 605. Competency of Judge as Witness
Rule 606. Competency of Juror as Witness
Rule 607. Who May Impeach
Rule 608. Evidence of Character and Conduct of Witness
Rule 609. Impeachment by Evidence of Conviction of Crime
Rule 610. Religious Beliefs or Opinions
Rule 611. Mode and Order of Interrogation and Presentation
Rule 612. Writing Used to Refresh Memory
Rule 613. Prior Statements of Witnesses
Rule 614. Calling and Interrogation of Witnesses by Court
Rule 615. Exclusion of Witnesses

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

Rule 701. Opinion Testimony by Lay Witnesses
Rule 702. Testimony by Experts
Rule 703. Bases of Opinion Testimony by Experts
Rule 704. Opinion on Ultimate Issue
Rule 705. Disclosure of Facts or Data Underlying Expert Opinion
Rule 706. Court Appointed Experts

ARTICLE VIII. HEARSAY

Rule 801. Definitions
Rule 802. Hearsay Rule
Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
Rule 804. Hearsay Exceptions; Declarant Unavailable
Rule 805. Hearsay Within Hearsay
Rule 806. Attacking and Supporting Credibility of Declarant
Rule 807. Residual Exception


Here are some excerpts from those rules (the rules have links to explanatory notes -- notes and footnotes are often very important) --

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. (emphasis added)

Notes

Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

(a) Character evidence generally

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

- - - - - - -

(3) Character of witness - Evidence of the character of a witness, as provided in rules 607, 608, and 609.

(b) Other crimes, wrongs, or acts

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Rule 601. General Rule of Competency
Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.

Notes

Rule 602. Lack of Personal Knowledge

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.

Notes

Rule 603. Oath or Affirmation

Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.

Notes

- - - - - - - - - -

Rule 607. Who May Impeach

The credibility of a witness may be attacked by any party, including the party calling the witness.

Notes

Rule 608. Evidence of Character and Conduct of Witness

(a) Opinion and reputation evidence of character.

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(b) Specific instances of conduct.

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence.(emphasis added) They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness(emphasis added), or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.

Notes

(I don't know why the rule says that specific instances used for attacking or supporting the witness' character for truthfulness "may not be proved by extrinsic evidence.")

- - - - - - - - - - - - - - - - -

Rule 701. Opinion Testimony by Lay Witnesses

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Notes


So it appears that witnesses in federal courts are presumed to be truthful unless their truthfulness is attacked, and I presume that the same is true in state courts. Also, only past conduct related to character for truthfulness or untruthfulness may be addressed (unless the witness has been convicted of a serious crime -- see Rule 609) -- other aspects of a person's character may not be addressed -- see Rule 608 (b), "Specific instances of conduct." The alleged instances of bad character that you presented (examples could include records from the school district showing this was not a one-time event, that Roger Paull acted defiantly during his meeting with the school district, records showing that the district did in fact give their reasons for dismissing Roger Paul in writing, etc.) do not appear to be directly related to truthfulness. If Roger Paull's truthfulness is attacked, he is of course entitled to defend himself.

Again, these are the federal rules -- state rules could differ.

Sunday, June 01, 2008 4:55:00 PM  

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