Wherein I Explain My Behavior

I’ve been MIA from the Blog with No Name for a while. Sorry about that. I’ve been struggling with a guest blog, which might turn into a full-blown article, about why it was wrong, wrong, wrong for Nimmer on Copyright to so definitively change its position on the “making available theory of distribution” (a/k/a the question of whether just keeping copyrighted files in a file-sharing folder infringes the distribution right).*

* Spoiler/rant: It’s not because I support file sharing of copyrighted works. I don’t. And it’s not because Prof. Nimmer (being impersonated by Prof. Menell) is necessarily wrong. They make a fairly strong case (though with substantial holes). It’s that they aren’t necessarily right, either. The problem is that they aren’t necessarily right, either. Nimmer on Copyright is a treatise, probably the most authoritative treatise on copyright law, and practitioners pay a tidy sum for the privilege of accessing it. What we pay for is reliability and authority (with the latter flowing from the former). But only a crazy person would say, as Nimmer/Menell now do, that this question has been definitively answered, and a practitioner reading the revised section uncritically—and, again, we pay money so we don’t have to read it critically!—stands a better than average chance, under current law, of being wrong. Where an area of law is controversial, the responsible thing for a treatise to do is explain the different ways the law might reasonably turn out. It’s cool for the author to state which one he prefers. It’s not cool for him to pretend the others don’t exist.

Also, I owe you all the second part on my Toward a Constitutional Model for Copyright Statutory Damages Awards. I’m sure the anticipation is killing you!*

* I’ll need to get it out by the end of the year. You know, so it can be considered for an Academy Award.

Meanwhile, Tara’s been blogging quite a lot, and such interesting stuff. As some of you know, Tara handles the transactional and licensing side of things, and I handle the litigation/dispute stuff, and I think you can tell from the different things we blog about.

Tara’s Zappos blogs got me thinking a bit. It is an easy bad habit to fall into to look at the websites of sophisticated companies, like Zappos (which, ahem, has been owned by Amazon, the height of online “sophistication” since 2009!), for legal guidance regarding how we should operate our websites. The reasoning goes: they are sophisticated; therefore, they have sophisticated lawyers; therefore, their websites have been approved by sophisticated lawyers. This habit is especially tempting because the laws affecting websites are often so arcane and/or unsettled.

But that wouldn’t have worked out if we had used Zappos’ famous website as a model, would it? Everybody knows they need terms of service, which is usually borrowed from another “sophisticated” website (which presents its own set of problems), and everyone knows it’s best to bury the sucker in a link at the bottom of each webpage, because that’s what the sophisticated websites do. Maybe, just maybe, we should think for ourselves a bit.

The problem with law is that it’s mostly common sense, except when it isn’t. And it’s hard to know when to apply common sense. Here, common sense should have ruled. Ask yourself: how would you feel if you were accused of breaching a contract, or having your actions limited by a contract, that you never thought to read? Your reaction would be: hey, I never agreed to that! There is, indeed, a duty to read written contracts*, but a contract only comes into existence when the parties agree. It doesn’t take much, but it takes more than what Zappos was doing.

* Contracts don’t need to be in writing, but written contracts are better for everyone involved.

Zappos, as Tara reported, is now in a world of hurt. The arbitration provision was very valuable to Zappos*, but Zappos will probably survive. $1 billion + in sales is helpful that way. And, as a retailer, Zappos was more vulnerable than most. But not everyone would survive something like this.

* Not because arbitrations are necessarily cheaper—the jury’s still out on that one—but because it forced all potential claimants to come to a single forum that was convenient to Zappos but inconvenient to the claimant.

Hey, that wasn’t very cheerful! We need more good cheer! Since it’s the Holiday Season*, let’s bring back my most popular Is it Fair Use contest, which happens to be Holiday-themed: the Elf on the Shelf case (copyright version here, trademark version here)!

* Merry Christmas! If you don’t celebrate Christmas, then, Happy Hogswatch (yes, that’s Lady Mary Michelle Dockery as the kick-ass Susan), and speaking of “important lessons” and contracts

Thanks for reading (and bearing with me)!