Academic translation and copyediting

Aaron Swartz, Martyr of Copyfight between Copyright and Copyleft

2/26/2013

The battle between the right and the left may be said to be the main thread weaving through the human history. The left is a peculiarly human phenomenon. Jungle law is a law of the right. In nature, the stronger always has the right and there is no such thing as a revolutionary left power overturning the established right power. The natural order is a perpetual maintenance of the status quo of the right where functions and structures develop uniquely by means of the adaptation of living organisms as required for the sole purpose of fitness and survival in the given environments. It may be said to be a kind of universal agreement to let the fittest survive, thus securing the optimal properties of the species most suitable for survival. The humankind left this realm of animal kingdom by the left force of dissenting individuals. It’s the left that gives dynamics and momentum to the otherwise linear evolution. It’s when the left exercises its power of creative destruction on the established order that the humankind advances leaps and bounds. Looking at the history of intellectual progress, the most prominent concept which describes this human phenomenon of the left is, for me, the thesis-antithesis-synthesis formula, with the left undertaking the role of antithesis which enters into a battle with the right and ends up with a synthesis achieving the balance of the two forces in an equitable, if not ideal, outcome, which, in turn, becomes a new (upgraded) thesis thus inviting a new antithesis.

In no other fields of human development is this formula so evident as in the history of intellectual property rights in which left is often treated like theft. The most recent and singularly striking event of such left-right copyfight is the suicide of 26-year-old Aaron Swartz. Transforming from an acclaimed computer prodigy, who contributed to the creation of the RSS protocol at the age of 14 and subsequently the social-news site Reddit, to one of the most prominent activists for free access to information, with the legendary role he played in stopping the SOPA (Stop Online Piracy Act) shortly before its Congress approval by mobilizing millions of netizens to stop the Congress from “breaking the Internet”. In 2011 Swartz was “indicted on federal charges of gaining illegal access to JSTOR, a subscription-only service for distributing scientific and literary journals, and downloading 4.8 million articles and documents, nearly the entire library” (NYT). He responded with a manifesto, asserting that sharing information “[is] called stealing or piracy, as if sharing a wealth of knowledge were the moral equivalent of plundering a ship and murdering its crew [, but] sharing isn’t immoral – it’s a moral imperative.” “Only those blinded by greed,” he added, “would refuse to let a friend make a copy.” Carmen Ortiz, the U.S. attorney for Massachusetts, filed 13 felony charges against him. State prosecutors had planned to let him off with a stern warning, but federal prosecutor Carmen Ortiz took over and decided to “send a message” to the Internet activist. Swartz committed suicide on January 11 in New York City.

Ortiz compared Swartz to a common criminal: “Stealing is stealing whether you use a computer command or a crowbar.” Attorney Stephen Heymann, overambitious to add a high-profile computer crime conviction to his account, threatened Swartz with over 30 years in prison a week before his suicide. The absurdity of comparing a computer crime (apart from the fact that Swartz was an activist by conviction, not a criminal) to a crowbar crime is the typical stance of hardline copyrightists. The fundamental difference between depriving someone of his possession and multiplying someone’s possession through sharing it does not seem to occur to them. Swartz’s martyr will certainly not stop the ever-increasing list of victims of vindictive and punitive legal actions campaigned by hardcore copyrightists headed by Hollywood and Ortiz, but his legacy of citizen-initiated Internet defence empowered by Internet snowball effect will bring more ‘Stop the SOPA’ kind of leftist successes directing the zeitgeist of free access to knowledge and entertainment towards the inevitable synthesis of free sharing of information and culture. The newly established thesis will dictate then the common possession of human creation, whereby the creators will be rewarded by citizens in the form of taxes centrally managed by the government.

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Sir Robin Jacob's Linguistic Markmanship

11/8/2012

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Sir Robin Jacob is one of the most quoted judges in the UK. I myself have a long list of savvy and sassy words he used which infallibly hit the nail on the head while delivering opinions or handing down decisions. One of them is 'nerd' he used to describe in one word an ordinary skilled worker in the art of a claimed invention. This notional technician should have a broad common and general knowledge in the field which he may use to test the applicability of the invention, but should not be a 'world champion' (to quote Sir Robin) or imaginative enough to see obviousness in every invention. I think 'nerd' is just the right word to express a one-track minded, not overly bright specialist. If there was an English equivalent to the German word 'Fachidiot', Sir Robin would not have come up with this bright word. Actually, nerd is the closest translation of Fachidiot, which exactly match the notional skilled person referred to in order to test the patentability of an invention.

The most recent one on my mental list is the word 'lackadaisical' which Sir Robin Jacob used in a post-judgementhearing of Apple v Samsung case held on 1 November 2012 in order to lead the derailed Apple along the right road of law and order; he etiquetted Apple's attitude towards the court order to publish Samsung's non-infringement in newspapers and magazines as being "lackadaisical at best". He hit again the bull's eye with this ingenious mot justecombined with "at best", which places Apple's reluctance to comply with the court order somewhere between half-heartedness and defiance.

With respect to Apple's contested notice (very haughty and opportunistic to my eyes) which appeared on its UK website in 'compliance' with the court order to publicize that Samsung tablet computers did not infringe its iPad Community Registered Design, Sir Robin began with "This is much more serious." He called the notice as "a mixture of the notice we ordered along with material added by Apple" and found those additions, three paragraphs interspersing the ordered wordings and a concluding paragraph, "false and misleading", especially the one comparing the UK judgement with that of a US jury being "misleading by omission ... calculated to produce huge confusion". In fact, as evidently intended by revengeful Apple, the contested notice gave the average reader an overall impression that the British court was biased while everywhere else in the world they say that Samsung is a copycat, as illustrated by the heading of an online magazine: "APPLE: SCREW YOU, BRITS, everyone else says Samsung copied us." Answering the Apple attorney's contention that Apple could not be held responsible for inaccurate reporting by journalists, Sir Robin succinctly pointed to Apple's contribution to the false impression being "false innuendo", another bull's eye.

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Defamer Sues the Defamed for Defamation: McGrath v Dawkins

9/18/2012

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Internet is among many other things a global and instantaneous platform of opinions. Not only social networks and market places, but also countless private and organizational websites and blogs maintain forum sections where opinion-mongers are up in arms and deliver heated verbal battles at their hearts’ content. Sometimes judges have to deal with individuals who bring their battles before the court. Here is one of such cases (a full text of judgement):

Chris McGrath (claimant) offered his book “The Attempted Murder of God: Hidden Science You Really Need To Know” on Amazon (3rd defendant) and wrote under several alias, purporting to be an independent reader, reviews and comments on Stephen Hawking's book “The Grand Design: New Answers to the Ultimate Questions of Life” also offered on Amazon, essentially for the purpose of promoting his own book, for example by referring to his book as an “answer to all doubts raised in [Hawking’s] book" and an “antidote to this misguided book.” This backdoor method and aggressive propaganda triggered many reader criticisms, most intensely by Vaughan John Jones (4th defendant). McGrath threatened Jones with a lawsuit and had his postings taken down from the Amazon threads, which led Jones to open a new thread on the website of Prof. Richard Dawkins (1st defendant) and his foundation (2nd defendant) to continue his anti-McGrath campaign. The threads reveal that the main reason for Jones’ intervention and McGrath’s rage was the former’s efforts to disclose the latter’s identity: a typical frontal collision of two stereotype personalities, i.e. a justice-hammered “I’ll get you” type versus a threat-brandishing “Get out of my way” type, which rapidly escalated into a sworn-enemy obsession by one of them.

Verbal abuse on the Internet, for its global and instantaneous snow-ball effect, can put the offender promptly behind bars in extreme cases, as it befell a young Twitter user who was sentenced to 56 days imprisonment for his “vile and abhorrent” mocking of the footballer Fabrice Muamba after he collapsed at a game with a heart attack (BBC Report). Anyway, McGrath, not having that kind of high-calibre abuse on his side, sued the two websites as main defendants seeking ‘aggravated’ and ‘exemplary’ damages. Applying the Defamation Act 1996 s. 1 “Responsibility for Publication” and reg. 19 and 22 of the Electronic Commerce Regulations 2002, HHJ Moloney argued in some 40 paragraphs to clarify the statutory defence for Amazon and Dawkins.

Then HHJ Moloney scrutinized five different threads on Amazon and Dawkins. Jones’ comments, as nicely summarized by the judge at 59, centred on the 'misconduct in business' and 'personal dishonesty' [my impression: the cat is out of the bag]. To decide whether McGrath’s defamation claim is justified, the judge went through the allegedly offending comments one by one and in the end picked out all potentially defamatory expressions such as nutter, let him hang himself, wingnut drivel, disreputable idiot, chancer, superstitious, drooling morons, lunatic fringe of religious people, repugnant as fleas, clear mental instability, lying fundamentalist creationists lacking moral and ethical integrity, and so forth. The judge then wisely made a u-turn and identified some facts as being matters “clear beyond argument”: McGrath sought to promote sales of his own book by means of false reviews, pretending to be independent readers, and take advantage of Hawking’s reputation to promote his own book “under the false guise of a review of that book,” and he used the Amazon debates under false identities purporting to be other readers giving their frank opinions.The judge also highlighted some facts which in fact corresponded to Jones’ assertions, thus removing the accused words of their defamatory charges and turning them into fair comments and honest opinions. Importantly, the judge made a distinction between hostile and vitiating comments.

In light of the above findings and by comparison with the substantial costs of trial for other parties, the judge struck out McGrath’s claim for damages as he struck out all other claims for reasons of, among others, absence of any credible claims. To reach this (for us common-sense citizens very self-evident) conclusion, the judge responded, in his 99 (partly quite lengthy) paragraphs of judgement, to each item of claim and the slightest opposition of the claimant by dissecting every significant word (for example, he used over 400 words to interpret the word ‘innuendo’ used by McGrath in his claim) and all circumstantial facts and by weighing all balancing factors in light of accepted definitions, relevant process principles, legal provisions and doctrines, and case law. I could not help feeling the judge’s painstaking efforts to keep a strict objectivity leaving nothing unaddressed, very often giving this reader the impression of unnecessary hair-splitting.

The judgement was handed down on 30th March, i.e. three months before the enactment of the Defamation Bill designed to amend the Defamation Act. The added or changed provisions, above all the requirement for serious harm, defences of truth and honest opinion, and increased protection to website operators regarding the user-generated content, would have saved the good judge many headaches and pages. I strongly doubt that the claimant of this case may be helped by the new Defamation Bill as the defendant in an imaginary case with Stephen Hawking as the claimant. No mitigating interpretation of the word ‘defamation’ would be able to avert the defamatory charges of some words McGrath used with reference to Hawking’ book. Even the ever-objective judge commented in parenthesis at one point: “This is of course a serious attack on the intellectual honesty of Prof. Hawking” to one of McGrath’s comments including: “Hawking’s book is nonsense” and “he knows God exists”.

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Legal Injustice

8/30/2012

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The most exciting thing in law study is, speaking for myself of course, reading the court rulings and opinions in high-profile cases. Over the two months' career as a new law student, I have read scores of court decisions and have learned, while having fun, more about statute law and legal way of thinking than from reading textbooks and statutes. With my experience with various kinds of lawsuit training bit by bit my reasoning and analyzing capacity, I am beginning to compare the different tendencies and approaches of individual judges and courts in different countries. With varying degrees, I agree with some and disagree with others, but I always learn something useful and applicable. It was not until today, while reading the 977 F.2d 798 case (ELSCO v three Motorola attorneys, 3d Cir. 1992) and its sequel 1997, that I felt a real disgust over the lawful injustice justifying judiciary misconduct.

To make a long and complicated story short and simple, Motorola caused ELSCO considerable material and moral damages through a wrongful seizure of its inventory and records on the basis of a vindictive witness statement and concealment of facts freeing ELSCO of the alleged guilt, and that after ELSCO President Jack Snyderman had cooperated in good faith with Motorola in its investigation to find proofs of ELSCO’s allegedly illegal trading of Motorola’s scrap electronic parts. ELSCO sought a summary judgment under 15 U.S.C. § 1116(d)(11) (1988) which constitutes a cause of action for seeking remedies for the damages suffered by reason of a wrongful seizure. I thought that this was a textbook example of a case worthy of the application of this all too just provision. Wide of the mark! ELSCO, which unjustly suffered the seizure of its whole inventory and loss of reputation, not to speak of the unspeakable shame and emotional distress (fifteen persons including federal marshals appearing out of the blue and moving van company employees taking away the inventory and business records!), went out completely empty-handed. By virtue of the statutory provision, ELSCO was actually entitled to just compensation for economic damages and attorneys' fees as well as considerable punitive damages for having suffered a wrongful seizure done in bad faith.

Let me summarize in five short rounds this saga of a downright outrageous legal injustice [freedom of speech protected by the First Amendment] :

First round: bad faith plaintiff causes damages to good faith defendant through a wrongful seizure.
ELSCO always reacted in good faith and showed a responsible conduct by firing the employee who it held responsible for the missing 1.5% of its stock as mentioned in the first auditor's report to Motorola. Despite this report and the second (unannounced) inspection verifying ELSCO’s innocence, Motorola sued his long-standing business partner in 1988. The ex parte seizure order engineered by Motorola’s three attorneys was based on a false witness [a malicious perjury and a prima-facie lie] of a disgruntled former employee as well as the concealment of the facts reported by two company inspectors. Motorola paid the ELSCO's former employee $700 for his "time in preparing his affidavit" [in reality, for his readiness to lie under oath].

Second round: the victim of wrongful seizure seeks remedies for the damages suffered.
In June 1988 ELSCO filed a complaint against Motorola and its attorneys relying on the Lanham Act, 15 U.S.C. § 1116(d)(11): “A person who suffers damage by reason of a wrongful seizure under this subsection has a cause of action against the applicant for the order under which such seizure was made, and shall be entitled to recover such relief as may be appropriate, including damages for lost profits, cost of materials, loss of good will, and punitive damages in instances where the seizure was sought in bad faith, and, unless the court finds extenuating circumstances, to recover areasonable attorney’s fee. […]” (italics by me). After two years [!] the district court granted summary judgment in favor of ELSCO [They must have left no stones unturned to avoid it, but they are judges after all], dismissing Motorola's trademark infringement claims. Motorola and ELSCO afterward reached a settlement [To Mr Snyderman's satisfaction, I strongly hope, though I doubt it; the good man must have wanted peace rather than justice]. ELSCO’s claims against the three defendant attorneys were preserved [The brave man challenged the legal guild].

Third round (the shortest round): the wrongdoers successfully deny their responsibility
The three attorneys moved for summary judgment arguing that attorneys are not "applicant" under 15 U.S.C. § 1116(d)(11). The district court granted their motion [this time, it did not lose much time]. ELSCO moved for reconsideration on the grounds that defendants could be liable as aiders and abettors, which the district court promptly refused.

Fourth round: the 3d Circuit brings forward its own definition of "applicant" and the "aider and abettor"
In order to decide whether the attorneys were "applicant" within the meaning of the Lanham Act § 1116(d)(11), the court rightly sought answer in § 1127 which defines the term "applicant" to be embracing the "legal representatives" of applicants. Despite this statutory definition and a confirming precedent case (Skierkewiecz v. Gonzalez, 711 F.Supp. 931, 934 (N.D.Ill.1989)), the Court reached the conclusion (after 24 paragraphs of Machiavelli arguments) that the attorneys were not the legal representatives of applicants. To justify its holding that “an attorney is not an ‘applicant’ under 15 U.S.C. § 1116(d)(11) and that there is no aiding and abetting liability under that statute,” the Court unfolded similar sounding arguments in 15 long paragraphs.

Fifth round: the Superior Court of Pennsylvania finally indemnifies the wrongdoers
The Court, while acknowledging at least that the Appellees were “proper defendants in Appellants’ wrongful use of civil process action,” denied the cause of action brought forward by ELSCO against the attorneys on the grounds that the attorneys were not the principal agents of the original suit, and finally affirmed the appeal court’s decision [One of the reasons: “judicial economy and efficiency”! I wonder whether it would have been better for ELSCO to file a separate complaint instead of appealing].

In his dissenting opinion [at least one legal conscience], the Superior Court Judge Johnson, pointing to the “unique facts that are presented in this case,” called into question the “determination that the trial court properly granted summary judgment in favor of the attorney defendants.” He said, “I would vacate the judgment and remand this action for trial.”

In my desperate efforts to find any good reasons for this apparently absurd conclusion which was assiduously and over-professionally reached by the highly honourable judges, I have gone through the toil and torture of analyzing all those 39 paragraphs of the appeal court decision and reading the 20-page arguments of the superior court decision trying to exonerate the attorneys. To safeguard the non-academic character of this blog, I can only repeat my astonishment which grew from paragraph to paragraph and from page to page.

Motorola and its three attorneys (directly) and all the judges who decided against ELSCO (indirectly) have the eventual death of the healthy company and the downfall of the honest and brave businessman on their conscience. Driven by my earnest wish to see the revival of my sympathetic hero, I tried to find him on the Internet. The great part of the scanty Google hits for Jack Snyderman and his company (Electronic Laboratory Supply Company, Inc.) only related to the lawsuit itself. This seemingly low-profile case, despite its keen peculiarity in terms of legal injustice, has not inspired any journalist's or blogger's pen – until today.

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Pirates and Trolls

8/17/2012

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History abounds in episodes in which C profits from the fight between A and B. As the case law grappling with p2p file sharing is growing worldwide and the Hollywood & Co. indefatigably keep suing linking websites and John Does for stealing their films, and as the Big Four & Co. are getting tired of chasing after students and housewives for stealing their songs, a new species of troll has emerged with a double-mouthed face: one mouth fed by cats and the other fed by mice. These legally educated trolls are multiplying and thriving, stilling their hunger and thirst by grabbing the pockets of copyright-flagged ships and their small pirates. Street pirates who play their games to nobody’s harm get caught in troll traps and throw over their ransom money in horror and disgust. Trolls do not mind the contempt-and-hatred molecules stuck on it: “pecunia non olet.”

The legal lawsuits of copyright holders against file swappers, file-sharing sites and cyber lockers are to nobody’s benefit and absolutely valueless for the society. Winners of these battles, especially in money ways, are lawyers. No wonder that a growing number of lawyers are specializing in the bully-the-pirate business. Of course, there are serious IP attorneys whose professionalism and integrity I dare not doubt. The main difference between trolls and serious lawyers is the absence or presence of real intention of bringing the pirates to the court, although this demarcation line is no clear-cut one since there is a practically inevitable grey zone between the two camps. The worst of trolls set the trap with one hand and offer a salvage service with the other. I refrain from revealing my personal discoveries of such trolls (who wants to get sued?), but googling with the key words such as anti-piracy, copyright, cease and desist letter, settlement letter, file sharing would suffice to harvest hundreds of troll websites. Actually my shocking discoveries came from typing German equivalents of those keywords, which prompted me to write this article.

The only way to bring the troll race to extinction is to equitably reward and promote content owners with the money centrally collected from the users on high volume low profit basis. France, for example, has managed to satisfy both artists and fans with ‘copie privée’, a tax levied on blank devices or equipment (such as cassettes, blank CDs or DVDs, portable digital players, USB drives, smartphones etc.) to remunerate the authors, publishers, performers and producers of the works these devices serve to copy. I would like to highlight my point of view that file swappers are eventually invaluable social assets, considering their contribution to the global culture by making already available works more widely available and no longer available works (e.g. out-of-print books or music scores) still available to the world. It is not the Internet alone that in this information era the otherwise out-of-reach treasures of knowledge and culture are brought within the reach of the earth population. The real enrichment through multiplying effect is the combined result of the roll-outs of numberless small and large file swappers, alias pirates, except for, of course, real bad guys. Furthermore, file sharing promotes new artists who otherwise would remain in anonymity. It’s high time that the authorities introduced win-win solutions balancing the content owners’ interest and users’ interest, e.g. Voluntary Collective Licensing suggested by EFF (Electronic Frontier Foundation). I myself is following with keen interest the current UK project of Digital Copyright Exchange.

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Sausage Parody of Olympic Rings

8/8/2012

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With “official” Olympic sponsors paying hundreds of millions of dollars as royalties for their “exclusive” rights to sell and advertise, the IOC is very vigilant in watching out for free riders. According to the New York Times, for example, Dennis Spurr, the owner of a butcher shop, who put a sign featuring the five Olympic rings made of sausages (see the sign here), was asked by the Olympic marketing police to remove the sign at his shop. The Olympic sausage rings came down, but the next day saw five interlocking sausage squares going up. The police came back with the threat of legal action. The sausage squares came down. But the witty Englishman had another idea: his sign shows now five frying pans. If the police turn up again? No problem. The next one will feature five handcuffs.

I doubt that handcuffs will have any luck to embrace Dennis Spurr's wrists. His signs with five sausage squares and frying pans have all textbook elements of a successful parody: a creative expression adopting basic features of the object while altering other features to achieve a comic or provocative effect. The basic idea of trademark parody defence is that parodies serve a valuable critical function, which enjoys the First Amendment protection. Although parody is not explicitly mentioned as a subject matter of fair use protection, case law is abundant with successful parody fair use cases. In a landmark parody case, "Campbell v Acuff-Rose Music" copyright infringement case, Souter J of the US Supreme Court established two elements essential to a parody fair use defence: that it has not taken any more of the original than necessary to make its point, and that the parody has not harmed the market for the original work. In light of these two elements, the sausage and frying-pan Olympic signs are exemplary parodies worthy of protection: it took as little as geometric forms and no cent has been stolen from the Olympic market share of McDonald, the official Olympic sponsor coming nearest to butcher business.

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Aaron Swartz, Martyr of Copyfight between Copyright and Copyleft

Sir Robin Jacob's Linguistic Markmanship

Defamer Sues the Defamed for Defamation: McGrath v Dawkins

Legal Injustice

Pirates and Trolls

Sausage Parody of Olympic Rings

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