Tuesday, April 25, 2017

Robot Lawyers

One of my lawyer friends recently wrote a somewhat unsettling  post about re-reasing Asimov and the coming of our robot overlords and it reminded me of reading an interesting article in the New York Times dealing with technology, artificial intelligence and law practices.  The subtitle was "I, Robot, Esq.? Not Just Yet".  The article, written by Steve Lohr contained some fascinating insights.

            For example one study shows that the adoption of automation could result in a reduction of 13 percent of lawyers' billable hours over the next several years.  Another study shows that nearly half of all tasks performed by lawyers could in fact be performed by robots.  Anecdotal reports show impressive results from using artificial intelligence in both legal research and in drafting legal memorandum. 

            All of this made me think how much the practice of law has changed in the three decades I have been at it.  When I started, legal research meant spending hours in the library (something I actually  enjoy) and word processing seemed to require massive technological skills.  Today it is shocking how much information can be accessed instantly via Google and other search engines and perhaps more importantly, how much we rely on these services.

            It is daunting for lawyers to consider this information while at the same time dealing with competition from automated services like Legal Zoom and Rocket Lawyer which have created competition in the areas such as estate planning and corporate formation.  I also read this week that legal fields such as personal injury are expected to decline as auto makers continue to make safer vehicles (artificial intelligence again). 

            It occurs to me that all lawyers  should embrace new technology the same way that large firms have begun to embrace technology for things such as document review and e‑discovery.  It cuts down the cost of delivering legal services.  However, when clients have problems, they want things from an attorney that a robot cannot provide, at least not yet.  The article identifies four particularly human  areas:  strategy, creativity, judgment and empathy.  I might add "communication" to the list but as anyone who has ever shared a joke with Siri or Alexis might attest, maybe that too can be outsourced to artificial intelligence.

Tuesday, March 7, 2017

Sir Paul Sues Sony/ATV

Fake news.  That is my characterization of most news stories that report on entertainment and copyright litigation.  Witness the reporting of Paul McCartney's recent lawsuit against music publisher Sony/ATV.  It was reported that McCartney had sued Sony/ATV to recover the copyrights to his Beatles era compensations.

            Paul McCartney did not need to sue anyone to recover his U.S. copyrights.  Section 304(c) of the Copyright Act gives McCartney the right to terminate the assignment of these copyrights after (a mere) 56 years (these songs were all created prior to January 1, 1978; there is a different section that applies to post 1978 copyrights).

            The story of how Sony/ATV ended up with these copyrights to most of the Lennon/McCartney catalog has been detailed elsewhere. Beginning in October 2008, McCartney began serving termination notices on Sony/ATV and according to the complaint, the terminations will begin vesting in October 2018.  Sony has acknowledged that these terminations are valid.  The purpose of McCartney's lawsuit is to seek a declaratory judgment that not only are the terminations valid but that the terminations themselves do not give rise to a breach of contract claim against McCartney by the publisher.

            This may seem somewhat odd since it is well settled that the Copyright Act gives authors the right to terminate assignments of copyright despite any prior agreement to the contrary.  The problem is that this is U.S. law.  There is no corresponding British law.  Last year, when the member of the band Duran Duran attempted to terminate the U.S. assignment of copyright to their works, Sony's affiliate in the United Kingdom sued the band for breach of contract.  The court in that case ruled in favor of Sony/ATV.  This sounds crazy but the court found that Duran Duran did not present expert evidence of U.S. law so the British court did not take U.S. law into consideration.  It seems as if the Duran Duran decision should ultimately be remedied but if it is not, this does put songwriters like McCartney in an untenable position.  How can they exercise their statutory rights in one country only to be sued for breach of contract in another country?  For this reason, McCartney may be taking a stand for similarly situated creators ( i.e. British songwriters who signed UK publishing deals and had success in America) asking the U.S. court to rule that the exercise of his termination rights does not represent a breach of his publishing agreement and/or that the agreements cannot be enforced against him to the extent that they interfere with the exercise of his termination rights.  The unspoken third claim of this declaratory judgment is most likely:  take that Michael Jackson.

            It will be interesting to see how this plays out

Sunday, November 27, 2016

Copyright Trolls

            We tend to want to think of Copyright Law as a dignified business.  Therefore I was shocked recently to discover that nearly forty percent (40 percent) of the copyright infringement litigation in this country involves the adult entertainment industry. 

            From my research (honestly) I see that companies such as Malibu Media (perhaps the largest player in this game) offer their videos for sale on the Internet.  Some unscrupulous users then employ file-sharing software to copy and share their films (does this sound familiar to the music industry?).  Much like the RIAA litigation of several years ago these companies have found ways to trace the infringements to various ISP addresses.  They then file copyright infringement lawsuits against the owners of these IP addresses (identified as John Doe in the complaint).  The defendants are then given the option to pay statutory damages (which can range from $750.00 to $30,000 or defend the claim in court.  Of course the next step is discovery in which the John Doe's real name gets revealed, leading to the possibility that the hapless defendant gets named in a federal lawsuit for downloading porn. 

            This really is a moral dilemma.  On the one hand copyright infringement is stealing, whether you're talking about an artist's life work or pornography and the adult film industry certainly has a right to protect its assets.  But the fact that the Copyright Act allows for the collection of statutory damages (at a minimum of $750.00 per title) and attorneys fees means that the plaintiffs are getting something of a windfall each time they are successful in these suits.  Some judges have taken note of this and there seems to be a new niche developing in defending against these suits. Of course even though they're not always victorious, litigating the claim for an innocent defendant (i.e. a grandparent or someone with an unsecure Wi-Fi connection) can be expensive.  The worst part to me is that these plaintiffs are holding this extra leverage over the defendants (pay up or suffer public humiliation. 

            These copyright owners have been called "copyright trolls" (defined as “an owner of a valid copyright who brings a copyright infringement action not to be made whole but rather as a primary or supplemental revenue stream") (see DeBriyn – Shedding Light on Copyright Trolls, 19 U.C.L.A. Ent. L. Rev. 79 (2012). I don't know if I would necessarily go that far.  Certainly no one accused the record companies of being trolls when they unleashed their torrent of lawsuits against file sharers (they were accused of many things but I don’t recall the word “trolls” being used.   But for some reason I find it shocking that this type of litigation constitutes so much of the federal court's docket.  However, it does demonstrate that there are a lot of ways to make money in the entertainment business.