Keller & Cunard Go Deep on Copyright Law
Originally posted 2015-06-08 06:45:49. Republished by Blog Post Promoter
I used to participate in a general-interest blog, back when my world was quite different, and my colleague over there, Dean Esmay (whose world and blog have changed even more), used to scold me for writing very long introductions that gave no hint of the topic of my post. So here I’ve got a long introduction, and I can’t help but write it; but I’m telling you up front that this is a review of Bruce Keller and Jeffrey Cunard’s Copyright Law: A Practitioner’s Guide from the Practising Law Institute’s Intellectual Property Law Library. And I’m telling you up front that if you just want to know whether to get this work, the answer is yes, and you can stop reading now. It’s awesome — which is to be expected. The authors are, of course, Satan’s spawn.
But before we go any further into the fiery depths of unforgivable excellence, some navel gazing. Why bother with books? Indeed, I shake my head in amazement when I ponder just how many CPU’s are under my control. I’ve got far more computers, in the forms of desktops, laptops, tablets and smartphones, than I can possibly justify, no matter how far I spread them out from each other. Still, at the end of the day I believe in the value of books for enlightenment both spiritual and professional. And, you know, around the house.
Regarding professional reading, which is the topic of the blog, everyone with experience knows that notwithstanding the seeming ease of online research, it’s just good sense to crack open a treatise and familiarize yourself with the area of law you’re diving into before starting with the Boolean logic. A string search for cases won’t teach you the lay of the land in an area of law that isn’t second nature to you. Not only that, but rush headlong into case research without understanding the concepts and you may very well get, as top results, a handful of cases that are in the right jurisdiction, on point, “good law” (as in not having been questioned by another decision) and just wrong, wrong, wrong.
Having said that, it seems clear that the age of the massive treatise is over. Like many readers, I had my gargantuan, costly, personal set of McCarthy for trademarks and my titanic, expensive personal set of Nimmer for copyright laid out across yards of bookshelf in my own little office for my own little use. And what happened to them? They fell into desuetude in every respect except the all important function of providing marginally interesting office decor.
This happened not because the value of legal learning through dead trees changed, but because these works cost a fortune, and required a small army of support staff to insert the updates even if you did spring for them.
And what was being updated in exchange for all that gold and all that business? No small percentage of these treatsauruses consisted of statutes, regulations and forms that certainly don’t make any sense to pay for updating, or even keeping around in paper form. As a result, the stuff you need is so spread out you have to spend 20 minutes just figuring out which volume to dust off. At the end of the day, both works are available online (McCarthy’s on Westlaw, Nimmer on Lexis, alas), are nominally updated regularly, and cost a lot less that way, all told, than buying and feeding old-school updates. So, heck with that.
And speaking of heck, back to the review of Keller & Cunard. The segue, in particular, is the contrast between the obsolete mega-treatise, as passé as a prehistoric (say, 1989) set of Martindale-Hubbells, with the definitive one-volume treatise. For this, we keep and make room on our shelves — those who know what books are for.
We’re not talking about just any loose-leaf volume here. We’re referring to a good one; a current one; a comprehensive one; perhaps one so wickedly exquisite that you can see the Old Man’s very hoofprints on page 666 by the light of the full moon.
Well, each of us in this profession must, at some point, make our deal with the Devil. So if, like your blogger, you get such a thing for free, that’s a particularly good kind of deal with the Devil, no? Not that I mean anything about the Practising Law Institute by that. Oh, no. It’s just that PLI has gotten into the habit of letting me review a number of revised editions of their Intellectual Property Library treatises, which means I get them for free. That’s all.
You think the Dark Side got the upper hand on me that way? Not so fast. One of the PLI books was just warmed-over mush from the ’90’s, and I said so in this space. Out of respect for everyone involved (for LIKELIHOOD OF CONFUSION® is nothing if not a blog of respect! *cough*) I won’t link to that review. But the second one, Siegrun Kane’s one-volume treatise on trademark law was, frankly, a keeper, and I said that too. That doesn’t compromise me one bit, because there’s nothing the least bit demonic about Siegrun.
On the other hand, Bruce Keller and Jeffrey Cunard’s Copyright Law: A Practitioner’s Guide is just terribly … awfully … perfect — exactly what you’d expect from the demonic likes of two partners at Debevoise & Plimpton — the people who made the world safe for trademark-protected RED shoe
Luckily for the rest of us, almost no one can afford to hire these guys. (Luckily for them, they don’t need too many clients who can afford it to make out, um, pretty okay.)
If you’re wondering why I have to spoil everything and talk about money, money, money — well, I told you up front that I got their book for free, didn’t I? But what I’m saying is yes, of course I’d buy this book — the extraordinary essence of these two lawyers’ phenomenal (you might even say supernatural) expertise and talent in the form of a single-volume treatise forged in hell and available from PLI for only $395 and your soul — in a second.
And if you don’t, then I hope you’re my next
That’s because this book is darned good. It’s comprehensive, detailed, well-sourced, well written. Did I read it cover to cover? No. It’s a treatise! And I sampled it, the way you use a treatise. But I’m telling you.
Let me tell you.
For one thing, I’m satisfied that Copyright Law: A Practioner’s Guide is utterly up-to-date, unlike me.
For example, it wasn’t all that long ago when papers with my name signed on the bottom unsuccessfully sought to dismiss a copyright claim brought in New York which, these papers argued, had little to do with New York and should therefore be dismissed for lack of jurisdiction.
Lesson learned, I thought: New York will exercise long-arm jurisdiction over any copyright case, any time, because what publisher doesn’t have something to do with New York? This seemed to have been confirmed by the decision, not long afterwards, in Penguin Group (USA) Inc. v. American Buddha, 640 F.3d 497 (2d Cir. N.Y. 2011), which held — upon receipt of a certified answer regarding New York’s long-arm statute from the New York Court of Appeals — that in copyright infringement cases where the subject work has been uploaded onto the Internet,” the “situs of the injury” for purposes of determining personal jurisdiction under New York law is the “location of the principal place of business of the copyright holder.”
Let’s face it, “principal place of business” is pretty much not going to be determined by a court on a 12(b)(1) motion, you know? The Internet is everywhere; and the Internet is New York; and New York is everywhere. You know how that goes. End of story, right? Big IP wins, defendants lose — it’s the Southern District of New York, right?
Not right. Right there on page 11-37 of Keller & Cunard, you can read about the 2013 decision in Troma Entertainment v. Centennial Pictures, Inc., 729 F.3d 215 (2d Cir. 2013), which (correctly) held that the Penguin decision was limited to copyright cases where the infringement took place in New York — i.e., on the Internet. In contrast, where a case is “more like ‘traditional commercial tort cases’ in which ‘the place where [the plaintiff’s] business is lost or threatened’ exerts a significant gravitational influence on the jurisdictional analysis,” the New York part has to mean… something. In Troma, it actually didn’t.
Okay, I kind of knew that. But, strictly speaking, I’d missed Troma. What does that prove — that LIKELIHOOD OF CONFUSION® didn’t know about a case that’s in a book by leading experts? That means it’s a good book?
If you think that’s just damning the book with faint praise, so be it. As for me, I’ll be glad I have Keller & Cunard’s handiwork — one volume, no need to crack open the index first, just grab it from the shelf and pop it open — the next time I’m firing up a motion based on New York long-arm jurisdiction under the Copyright Act. Which could be any minute, see?
Heh. Did I say “firing up”? I meant, preparing.
Anyway, my point is, I can’t know everything, and neither can you. Are you Lucifer, or Bruce Keller, or Jeffrey Cunard? You’re not. You don’t even play them on TV. Nor would I cast you if you auditioned, except maybe into the fiery flames. But I have their book! And gosh-darn it, you should too. Indeed, unlike some treatises or CLE presentations by bona fide experts whose fame is in part a function of their representation of the biggest stakeholders in the game, this book is balanced — exactly, as we see from The Devil and Daniel Webster, we expect it to be. It acknowledges that lawyers who read treatises represent not only plaintiffs but defendants.
Thus, for example, Copyright Law: A Practitioner’s Guide includes a fully-developed section on defenses to copyright infringement claims, even citing some of my personal favorite decisions. True, this section does bear the somewhat tentative sounding title, “What Defenses Exist?” — exactly the sort of doubt-inducing query you’d expect from a book forged in the Inferno, as this one was.
Oh, you’d think plaintiffs’ lawyers would want to know what the defenses to a copyright lawsuit are as much as defendants’ lawyers? Just to do their jobs right?
If you’d think that you’d be a very good lawyer, wouldn’t you — like the guys who wrote this book! Who, did I mention, we all hate. Do you have a problem with that?
Who told you there’s something wrong with that?
Anyway, if title of the defenses section is tentative-sounding, the text isn’t. These guys drill, as you would expect, down — deep. They descend with you through the successive circles of copyright defenses with a thoroughness only obtainable — the likes of LIKELIHOOD OF CONFUSION® must convince himself to prevent coming to terms with his own private heck — by outstanding practitioners
who have dilgently mastered their crafts and practiced at the top of the field in one of the world’s great law firms who have sold their souls to Prince of Darkness.
So, right in line with that, Keller & Cunard do this in an easy-to-read, sometimes downright breezy, prose that puts the reader right in the action, using the second person-singular and just telling him exactly what to do:
If you advise your client that the fair use doctrine justifies use of the copyright work without clearing the rights, you should be aware that a determination that given use is fair under U.S. law does not protect the client for uses of the work outside the United States.
Fair enough. Outside the United States, eh?
Like in Hades?!
Get the book. Or burn.