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Fwd: copyright conversations



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Here's a response from a lawyer friend in regard to the discussion thread
begun by Helen Hiebert about/abuse use of design. Thought you might be
interested in a take on creative infringements from a practicing attorney's
point of view.

<< I'm not an intellectual property lawyer, but it seems to me that the moral
issue may be expropriation of the design of the paper or expanding on it, or
whatever, but that is not a copyright problem, or if so, it is out on the
edge (=legal research to clarify, always an expensive proposition).

pretty clearly the simpler and less expensive case is simple breach of
contract.  they asked you to create, or just select, or even just order some
property they used.  not hard to prove...no issues of who thought of which
creative element...just the fact that they asked you and you did it.  now you
send them a bill.  if it's too much, the jury listens to others who send
similar bills.  a hell of a lot easier, less complicated, and less expensive
than proving the author of an idea, the generations of "fair use" or change
or whatever.  maybe not as satisfying.

smart people (perhaps like the lady who invented a "relative" who is a lawyer
to intimidate a solution) can get leverage in small disputes (small in the
financial, but seldom in the legal sense) by filing pro se.  or in small
claims court.  what can you lose?  a little dignity?  threatening a
"relative" who is a lawyer or some other bluff can lose it a lot faster if
the other guy calls the bluff or decides it's an issue of principle or
precedent he wants to defend.

and it's a little more ethical and honest.   think how the legal profession
feels to be the butt of jokes and then to be used indirectly and without
compensation by anyone trying to force a reluctant customer to pay up. i
often hear that "x is my lawyer" was threatened by people i've never met.
your friend in the correspondence who takes the high moral ground on the
issue of personal creativity and remuneration for his production, doubtless
would spontaneously render a check to the lawyer whose name and fame  were
bandied about to tenderize the opposition?

i think you or anybody else should collect for any project you are
commissioned to do (just like lawyers should be paid for their "reputation"
or their hard-earned license...whatever influences the solution of the
problem) but if the project rests on shaky proof of the content of the terms,
that's just the way it is, and will produce in the hands of a competent
lawyer the pragmatic advice to compromise.  in the hands of most lawyers, the
advice to forget it, knowing that the client is somehow going to blame them
when it comes out a compromise.  (i spend about 10 minutes with all clients
pointing out there are 2 chairs across from me, one with a sign
"practicality" and the other "principle.  they cost far differently.  i ask
which one the client wishes to sit in, with the warning that it's going to be
very difficult to shift to the other once the room begins to move).

most of the difficulties are mere extrapolations of what was the client's
initial queasiness about forcing a definite, written list at the outset of
who does what, including how much.  if the parties were dubious about the
practical terms or were worried about running off the project at the outset,
or about bruised feelings, that says a lot about the objective ground on
which the thing was built.  >>


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Return-path: BobAuler@aol.com
From: BobAuler@aol.com
Full-name: BobAuler
Message-ID: <16.1940fd2.25f629da@aol.com>
Date: Tue, 7 Mar 2000 04:46:02 EST
Subject: Re: copyright conversations
To: RELIURE@aol.com
MIME-Version: 1.0
Content-Type: text/plain; charset="US-ASCII"
Content-Transfer-Encoding: 7bit
X-Mailer: AOL for Macintosh sub 146

paula

a couple of observations.  i'll try to be gentle, but from a
strictly-lawyer's point of view it rankles to be told of the inadequacies of
the law when the problem is a "verbal" (what other kind are there?  "oral" is
the problem!) agreement.  that part usually gets glossed over and the part
about how much trouble and money is quoted, and the slim odds, get
emphasized.

the problems of proving conversations on matters large and small: there are
usually generations of discussion...often a dozen...which eventuate in a
project, even if they were remembered objectively.  add greed, stinginess,
bad memory, anger.  you end up with an agenda for depositions, research for
precedent, court reporters, travel and time.  those elements cost money and
after they are expended, yield little more than tightly drawn disputed issues
of fact for a trial.  experienced lawyers, seeing that 12 people have to
agree on the likelihood of one set of data (speculate on how likely it is to
count on that when 12 random people can't even agree on clinton) decide that
a compromise is wisest.

then we hear about gutless lawyers or lazy ones.  or about how the law sux.

the paper in dispute, or the email or the recordings from the phone messages
would eliminate the expensive part of such problems.  and the failure to
preserve the terms of the agreement ain't the lawyer's fault.

also, i'm not an intellectual property lawyer, but it seems to me that the
moral issue may be expropriation of the design of the paper or expanding on
it, or whatever, but that is not a copyright problem, or if so, it is out on
the edge (=legal research to clarify, always an expensive proposition).

pretty clearly the simpler and less expensive case is simple breach of
contract.  they asked you to create, or just select, or even just order some
property they used.  not hard to prove...no issues of who thought of which
creative element...just the fact that they asked you and you did it.  now you
send them a bill.  if it's too much, the jury listens to others who send
similar bills.  a hell of a lot easier, less complicated, and less expensive
than proving the author of an idea, the generations of "fair use" or change
or whatever.  maybe not as satisfying.

smart people (perhaps like the lady who invented a "relative" who is a lawyer
to intimidate a solution) can get leverage in small disputes (small in the
financial, but seldom in the legal sense) by filing pro se.  or in small
claims court.  what can you lose?  a little dignity?  threatening a
"relative" who is a lawyer or some other bluff can lose it a lot faster if
the other guy calls the bluff or decides it's an issue of principle or
precedent he wants to defend.

and it's a little more ethical and honest.   think how the legal profession
feels to be the butt of jokes and then to be used indirectly and without
compensation by anyone trying to force a reluctant customer to pay up. i
often hear that "bob auler is my lawyer" was threatened by people i've never
met.  your friend in the correspondence who takes the high moral ground on
the issue of personal creativity and remuneration for his production,
doubtless would spontaneously render a check to the lawyer whose name and
fame  were bandied about to tenderize the opposition?

i think you or anybody else should collect for any project you are
commissioned to do (just like lawyers should be paid for their "reputation"
or their hard-earned license...whatever influences the solution of the
problem) but if the project rests on shaky proof of the content of the terms,
that's just the way it is, and will produce in the hands of a competent
lawyer the pragmatic advice to compromise.  in the hands of most lawyers, the
advice to forget it, knowing that the client is somehow going to blame them
when it comes out a compromise.  (i spend about 10 minutes with all clients
pointing out there are 2 chairs across from me, one with a sign
"practicality" and the other "principle.  they cost far differently.  i ask
which one the client wishes to sit in, with the warning that it's going to be
very difficult to shift to the other once the room begins to move).

most of the difficulties are mere extrapolations of what was the client's
initial queasiness about forcing a definite, written list at the outset of
who does what, including how much.  if the parties were dubious about the
practical terms or were worried about running off the project at the outset,
or about bruised feelings, that says a lot about the objective ground on
which the thing was built.  not about the inadequacies of the system.

if the parties were tenuous, and the uncertainly was like the awkward
possibility of a kiss on the first date, maybe there was an honest difference
between them which never hardened (jeez, i'm sorry i slipped into that
metaphor) into an agreement which deserves protection by the law.

now that's a preachy, smug, cold, anti-artistic essay.  right?

not intended to be.  but it seldom gets explained that the typical morass is
not simply the product of the big oppressing the little and the greedy lawyer
plundering the righteous.

so how's carmel?

bob


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