‘Refashioning Copyright’s “Substantial Similarly” Infringement Test’

Carys J Craig, ‘Transforming “Total Concept and Feel”: Dialogic Creativity and Copyright’s Substantial Similarity Doctrine’, 38 Cardozo Arts and Entertainment Law Journal (forthcoming), available at SSRN. Carys Craig is far from the first scholar to criticize copyright law’s vague ‘substantial similarity’ test for infringement, especially when that test is based on the even vaguer ‘total concept and feel’ standard, but the difference is that in her new article, ‘Transforming “Total Concept and Feel”: Dialogic Creativity and Copyright’s Substantial Similarity Doctrine’, Professor Craig advances an alternative approach that might get some traction. Professor Craig centers her critique on a recent case that involves the two images below. A jury could look at these two photos and decide that an ordinary person could view the ‘total concept and feel’ of the two images as the same. But Craig explains why that’s not the right outcome …” (more)

[Christopher J Sprigman, JOTWELL, 5 March]

‘Liquidated damages payable on termination not unenforceable penalty’

“The law around unenforceable penalty clauses is well-known but the question of how to apply it in practice is notoriously tricky. The court has recently looked at this issue again in De Havilland v Spicejet. The Indian airline Spicejet agreed to purchase aircraft from the Canadian manufacturer De Havilland. Spicejet failed to pay some of the pre-delivery payments due under the purchase agreement and then failed to take delivery of some of the aircraft. De Havilland served notice terminating the agreement and claiming liquidated damages payable on termination …” (more)

[Sophie Orwell, Allen and Overy: Compact Contract, 4 March]

‘Update on Parent Company Liability: Okpabi v Shell Reinforces Risks for Companies with Offshore Subsidiaries’

“The United Kingdom Supreme Court has released its much anticipated judgment in Okpabi v Royal Dutch Shell Plc. The Supreme Court unanimously overturned the Court of Appeal’s previous finding that the English courts did not have jurisdiction over a claim against Royal Dutch Shell Plc (Shell) and its Nigerian subsidiary, Shell Petroleum Development Company of Nigeria Ltd (SPDC) …” (more)

[Quinn Emmanuel, Oxford Business Law Blog, 5 March]

‘Conflict Scholarship in Partisan Times’

Symeon C Symeonides, ‘Choice of Law in the American Courts in 2020: Thirty-Fourth Annual Survey’, 69 American Journal of Comparative Law 235 (2021). As the saying goes, we live in partisan times. This makes it easy to succumb to the delicious allure of Manichean partisanship. Legal scholars are not immune from this temptation. Some identify with one side or the other, advocate for one party or the other, espouse one political agenda or the other. But this moment urges us to think about the role of legal academics in a civic discourse. What is our function? …” (more)

[Roger M Michalski, JOTWELL, 4 March]

Kevin Tobia, ‘The Corpus and the Courts’

The legal corpus linguistics movement is one of the most exciting recent developments in legal theory. Justice Thomas R Lee and Stephen C Mouritsen are its pioneers, and their new article thoughtfully responds to critics. Here, Part I applauds their response as a cautious account of how those methods might provide relevant evidence about ordinary meaning in legal interpretation. Some disagreements persist, but The Corpus and the Critics makes significant progress in academic debates about legal interpretation. Part II turns from theory to practice: Judges are increasingly conducting sua sponte corpus linguistic analyses in their opinions, and this Essay collects and analyzes these cases. Corpus linguistics is theorized as apolitical, neutral, and objective. But in practice, it has been used largely by Republican-appointed judges, sometimes inconsistently with standards that Lee and Mouritsen recently endorsed. This Essay outlines a set of best practices, endorsed both by Lee and Mouritsen’s new cautious account and by many critics of the movement. If courts continue to employ legal corpus linguistics methods, the practice should be guided by at least these shared standards.

Kevin Tobia, The Corpus and the Courts, University of Chicago Law Review Online, 5 March.

Albert Lin, ‘Dodging Public Nuisance’

Public nuisance claims against fossil fuel companies, drug companies, lead paint manufacturers, and other industries have raised the specter of onerous abatement orders and damage awards. While courts sometimes have rejected these industry-oriented public nuisance claims on their substantive merits, in climate change cases federal district courts have turned to doctrines of avoidance – including jurisdictional defenses and justiciability doctrines – to dismiss cases and avoid reaching the substantive merits. This dodging of public nuisance, often supported by questionable legal analysis, not only undermines the functions of tort law, but also cuts short important discussions between the judiciary, the political branches, and the broader public. Although plaintiffs ultimately may not succeed, courts should fulfill their responsibility to address public nuisance claims on their substantive merits, rather than reflexively relying on avoidance doctrines to dodge such claims.

Lin, Albert, Dodging Public Nuisance (2020). 11 UC Irvine Law Review 489 (2020), UC Davis Legal Studies Research Paper forthcoming.

Evan Zoldan, ‘Canon Spotting’

The canons of statutory interpretation have never been more important to theories of interpretation or more central to the interpretive methodologies employed by courts. Nevertheless, there is no accepted way to determine whether an interpretive method is a canon of interpretation. Without a way to identify canons, we cannot evaluate whether the countless cases that turn on the application of canons are correct. And without a way to identify canons, normative debates about the canons remain incomplete and muddled.

This Article proposes and defends three criteria for spotting canons – that is – for determining whether an interpretive method is a canon of interpretation. An interpretive method is canon only if 1) it actually is used by legal interpreters, 2) using it affects interpretive outcomes, and 3) its proponents claim that it is theoretically justified. Using these three criteria to distinguish between canons of interpretation and noncanonical interpretive methods will allow scholars and courts to distinguish normative from descriptive arguments about the canons, allowing for clearer and more precise debates about both.

Zoldan, Evan Craig, Canon Spotting (March 3, 2021). Houston Law Review, forthcoming.

Sigler, Teitelbaum and Walker, ‘Licensing Structures and Compliance in an Evolving IP Landscape’

As we discussed during the roundtable in the 2020 LES Annual Conference, there are various types of licensing structures available to licensors, each having its own unique set of pros and cons. However, over the past two decades, licensing has seen a gradual transition from the traditional running royalty-based agreements to various, more predictable financial solutions, including fixed annuity fee structures and one-time lump-sum payments. This business transition was accelerated by the adoption of the accounting rule ASC 606, which defines when and how royalties should be recognized. While this transition is by no means complete, the increased commonality of predicable financial solutions mentioned above has made licensing negotiations more nuanced, introducing variables previously not considered. Depending on the type of deal structure agreed upon, these new variables should be considered and explored in preparation for deal making, as well as at the negotiating table – be it real or virtual.

Sigler, Todd and Teitelbaum, Ozer and Walker, Keith, Licensing Structures and Compliance in an Evolving IP Landscape (January 22, 2021). Les Nouvelles – Journal of the Licensing Executives Society, volume LVI no 1, March 2021.

Mary Fan, ‘The Public’s Right to Benefit from Privately Held Consumer Big Data’

The information that we reveal from interactions online and with electronic devices has massive value – for both private profit and public benefit such as improving health, safety, and even commute times. Who owns the lucrative big data that we generate through the everyday necessity of interacting with technology? Calls for legal regulation regarding how companies use our data have spurred laws and proposals framed by the predominant lens of individual privacy and the right to control and delete data about oneself. By focusing on individual control over droplets of personal data, the major consumer privacy regimes overlook the important question of rights in the big data ocean. This article is the first to frame a right of the public to benefit from our consumer big data and propose a model to realize the benefits of this common resource while reducing the harms of opening access.

In the absence of an overarching theoretical and legal framework for property rights in our data, businesses are using intellectual property protections for compiled data to wall off access. The result is that while companies may use the data to find ways to get us to click or buy more, access for nonprofit public interest purposes is denied or at the discretion of companies. The article proposes a model for sharing the benefits of our pooled personal information. Drawing on insights from property theory, regulatory advances, and open innovation, the article proposes protections to permit controlled access and use for public interest purposes while protecting against privacy and related harms.

Fan, Mary, The Public’s Right to Benefit from Privately Held Consumer Big Data (March 1, 2021). Forthcoming, 96 New York University Law Review (2021).