Sunday, July 8, 2012

Precedent or Die!

This is not legal advice. Leave audio feedback at (512) 686-6329.

Yesterday, I mentioned that it would be silly to start with an opinion and just keep going back to the earliest opinion I could find. While in the context of Eldred I think that was true, just to do it for the sake of doing it to see how far we can go has my curiosity peaked.

Let's start with a case that is near and dear to Nick's heart, MDY Industries, LLC v. Blizzard Entertainment, Inc., 629 F.3d 928 (9th Circuit 2010).

There are a lot of cases in MDY that I recognize, but for the purposes of this blog I think  MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005) is one everyone should read.

Of course, the Grokster case relies heavily about the Napster case, 239 F. 3d 1004 (CA9 2001).

From there we go to what might be the most important copyright case of all time, Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 451 (1984).

Sony takes us to this amazing quote and case "When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose." Twentieth Century Music Corp.v. Aiken, 422 U. S. 151, 156 (1975).

It is here that I start not recognizing the cases, but I did find one having to do with music: Associated Music Publishers, Inc.v. Debs Memorial Radio Fund, 141 F. 2d 852 (CA2).

There are lot of citations in AMP v DMR, but there was one which I had seen before: Herbert v. Shanley Co., 242 U.S. 591, 37 S.Ct. 232, 61 L.Ed. 511.

Unfortunately, that is where Google Scholar leaves us hanging, but we do still have some citations, 229 Fed. Rep. 340. 143 C.C.A. 460, which you can find if you have a Westlaw subscription.  

Luckily, our next lead keeps us dealing with music, 
 "This court has held in John Church Company v. Hilliard Hotel Company, 221 Fed. 229, 136 C.C.A. 639 (1915), that the copyright to a certain musical composition is not infringed where the music is publicly rendered in the dining room of a hotel, which is open to the guests without charge for admission."
Remember, the current copyright act was passed in 1976, so we are well before the current law with that citation. Now John Church Company appears to have no citations to American jurisprudence, but it does have a citation to an English case, Sarpy v. Holland and Savage, 99 L.T. 317. I went looking for the English case and found the interesting article "The Evolving Role of ‘For Profit’ Use in Copyright Law: Lessons from the 1909 Act". Now, I am a bit out of my depth searching for English case law, so I am going to go back to Sony, since it's a big case that probably goes back further into American jurisprudence, though maybe not because of the 1976 Act.

It didn't take me long to find another, older, case involving music, White-Smith Music Publishing Co. v. Apollo Co., 209 U. S. 1 (1908).

Friends of mine will know two reasons why I picked this next case, Banks v. Manchester, 128 U.S. 244, 253:

1) I am a Manchester United supporter.
2) I live close to Manchester, NH.

Now, other cases cite Wheaton v. Peters, 8 Pet. 591, 662, 663, but I didn't want to go that far back so quickly and make you think nothing was going on in interim. I finally decided to go there though, because it's a very important case.

Sadly, from the 1834 Wheaton v. Peters case we only get citations to English law again, which Google Scholar doesn't have. What's interesting though is that at least as recently as 2005, NY courts were still citing the English cases Wheaton was citing. Google is awesome, because you can see how that English case was cited.

Now, I could go back through the state cases for NH or MD, but I think you've gotten some good insight into the web that cases weave. Once you read all of the cases listed and all the cases those cases cite, you'll be ready to be a copyright lawyer*!

*and law school and passing the bar, of course