Amazing new copyright treatise! Seriously.
This may not be the sort of post that gets picked up by Yahoo Finance and drives boat loads of "traffic" to the site. Yet I do hope some people stumble upon this somehow and end up taking a look at an amazing new copyright treatise that's been written by William Patry.
Patry is currently senior copyright counsel at Google, and in previous lives has served as a full-time professor at Cardozo Law School (5 years), copyright counsel to the U.S. House of Representatives (3.5 years), Policy Planning Advisor to the Register of Copyrights (4.5 years), and as a copyright litigator in private practice (12 years). (He also writes The Patry Copyright Blog, whose items I rip off from time to time.)
What's new about this treatise? Is it a wiki? No, thank God. Just the opposite, really. It's a 7-volume, 5,830-page treatise (available here from Thomson/West for the low low price of $1,498) that was--incredibly--written entirely by Patry.
"I researched and wrote every word of it," Patry tells me in an email. "The days of single author vast treatises seem long past and now legal writings tend to be polemics, law firm advertising stuff, academic stuff (not of much use to private lawyers or inhouse counsel), or group efforts. So this is a throwback in some ways to the days when one person tried to impress on a work his or her own personality, and I am not the least bit shy about doing that either."
He's really not, though his opinions are there only if and when the reader is ready for them, and after he's dutifully and comprehensively offered the insights on the subject of all the best judges, academics, practitioners, literary critics, language philosophers, linguists, and whatever category people like Roland Barthes fall into. Some passages--like his discussion of principles of statutory construction in Chapter 2--have significance that ranges far beyond the realm of copyright, and should be read and considered deeply by every practicing judge. Patry's critique of Justice Antonin Scalia's dismissive ("textualist") approach to legislative history is devastating, in part because it is informed by Patry's own wealth of experience in the legislative process as copyright counsel to the House Judiciary Committee. After quoting an oft-cited passage of Scalia's, italicizing certain phrases he plans to pick apart, he writes: "I have emphasized so many passages here because they reveal, individually and collectively, a degree of ignorance and contempt that deserves to be confronted. The passages take off the mask of pious assertions of fidelity to Congress: anyone who thinks this is how Congress actually works clearly has no respect for it."
Yet the treatise toes no stock political line either. He goes after liberal attempts to import international law into U.S. law in chapter 25, for instance, and rides roughshod over the liberal U.S. Court of Appeals for the Ninth Circuit throughout.
This work is really worth checking out. Don't just take my word for it. Bigger shots than me think it's a big deal. It's got a foreword by former Justice Sandra Day O'Connor and an endorsement by former Acting Solicitor General Walter Dellinger. Give it a look.
Puzzle: Can you find the loophole in Bill Lerach's sworn statement?
This post feels like it needs to start with an epigram, but I'm torn between two candidates. One is "Character is destiny." The other is the old lawyer joke that goes something like: Q. How can you tell when a lawyer is lying? A. His lips are moving.
The nation's leading class-action lawyer, Bill Lerach, is currently in an ugly scrape in federal court in Dallas, where the sole lead plaintiff in a high-profile shareholder suit against Halliburton (HAL) no longer wants Lerach or his firm to act as its co-lead counsel. (I've posted about it before here and here.) To recap, the fund has said that it is concerned about all the distractions and the sleaze factor now surrounding Lerach and his prior firm, Milberg Weiss Bershad Hynes & Lerach (which Lerach co-ran). Last May that firm, then called Milberg Weiss Bershad & Schulman, was indicted along with name partners David Bershad and Steve Schulman for allegedly making secret payments to plaintiffs and lying about it in about 180 cases over the past 25 years. Lerach and the west coast office of Milberg Weiss split off from the rest of that firm in 2004, forming the firm now known as Lerach Coughlin Stoia Geller Rudman & Robbins.
The squeamish plaintiff, the Archdiocese of Milwaukee Supporting Fund, has asked that Lerach Coughlin be replaced by David Boies and his firm, Boies Schiller & Flexner, which firm has indicated that it is ready, willing, and able to assume the role.
Needless to say, Lerach is fighting the uppity plaintiff to keep control of the case. In his most recent papers, filed January 8, Lerach's papers make the following surprising argument.
In a section of a brief subtitled: "NEITHER LERACH COUGHLIN NOR LERACH FACE THE RISK OF INDICTMENT," he and his co-counsel assert: "The federal prosecutors in charge of the Milberg Weiss criminal case have told the Court that there will be no further indictments of any individuals in that case." (I have not added the boldface or italics; they are in the original.)
Then, in Lerach's accompanying declaration, sworn under penalty of perjury, he provides the factual support for the brief's assertion: "I am able to state that based upon statements made by the prosecutors handling the Milberg Weiss criminal case that no further individuals will be indicted in that case."
Okay, reader. Here's the Highlights magazine-inspired puzzle. Can you find the loophole in Lerach's sworn statement? What could he really mean? Given that it's been widely reported that Lerach has received a target letter from the federal prosecutors running that investigation; that the investigation is still white hot; and that Lerach's name already appears repeatedly in the existing indictment as "Partner B"; has Lerach really been given assurances by the prosecutors that he won't be indicted?
Gotcha! He doesn't say they've told him he won't be indicted. He says they've told him he won't be indicted in that case. (This time the italics are mine.) What the prosecutors were really saying was that if Lerach and/or name partner Mel Weiss or any additional individuals are eventually indicted, they'll be charged in a separate indictment, so as not to further delay trial of the defendants in the existing indictment (scheduled to start January 8, 2008). The prosecutors were assuring the judge that Lerach and/or other individuals wouldn't be indicted in Criminal Action No. CR-05-587(A)-DDP; if he and/or others are indicted, their case will have a different docket number, and will be tried separately from the Milberg Weiss case.
How could that irrelevancy, properly understood, possibly allay the concerns of the lead plaintiff Archdiocese of Milwaukee Supporting Fund? It couldn't. Then why would you put an argument that patently misleading--in italics and boldface, yet--in papers to a judge whom you're trying to persuade should still trust you?
Because character is destiny. Or something.
How the Harriet Miers nomination undermined the Bush presidency
Okay, Iraq and Hurricane Katrina played a role, too. But on the occasion of Harriet Miers's resignation as White House counsel (announced Jan. 4, effective Jan. 31), I thought I'd finally voice a quirky, unprovable, and doubtless offensive-to-many intuition I've harbored ever since President Bush nominated her to become an associate justice of the U.S. Supreme Court on October 3, 2005.
The Miers nomination split the Republican Party, as everyone recalls, with most of the ideological conservatives--like Bill Kristol, David Frum, George Will, Kate O'Beirne, Charles Krauthammer--putting their collective foot down and taking the position that she was simply not up to the job. In my mind, that's the moment when the wheels came off the George W. Bush presidency.
The big question dogging Bush all along had always been whether he himself was up to his job. He just never seemed to be playing in the same league as other presidents. Even the greatest scoundrels of either party, like Richard Nixon or Bill Clinton, had him skunked when it came to knowledge of history, government or international affairs. The notion of President Bush ever trying to mediate a Mid-East peace agreement between two cunning, powerful, antagonistic statesmen - the way Jimmy Carter did at Camp David with President Anwar Sadat and Prime Minister Menachim Begin in 1978 - was just out of the question from the get-go. However you want to articulate the reasons, we can all agree that he wasn't up to it.
Intellect is a complicated thing. It's got lots of components and every individual has a puzzling mix of strengths and deficits. So Bush wasn't necessarily "unintelligent," whatever that might mean. In any case, for an American to suggest that the president was unintelligent seemed tasteless, ad hominem and unpatriotic. (Brits and Europeans weren't as reticent.)
Still, the issue didn't go away just because people held their tongues. Over time a consensus seemed to emerge that the only thing that could appropriately be said on the subject was that Bush was unusually "lacking in curiosity." Yet it was more than that. There was also that stunted quality to his personality. The incessant macho posturing--"Bring 'em on!," "Dead or alive!"--that seemed not just reckless and dangerous, but eerily immature. He evoked one of those royals in the Europe of yore who, through the rigid workings of primogeniture, found himself King at age 11. What other president in our history would have said, "I'm the decider"? Though the sentiment has probably been universal among presidents, the preadolescent phraseology is distinctly our W's.
For a long time, the brilliant conservative ideologues who championed and defended the George W. Bush presidency professed not to know what I'm talking about. They dismissed those who broached the topic as Eastern Establishment elitists. The president was not simple, they maintained. Rather, he was possessed of "moral clarity." Moral clarity was sometimes mistaken for lack of candlepower by relativistic, secular humanists, they explained.
And that was pretty much the party line all the way up till October 3, 2005, when Bush nominated Harriet Miers to assume the pivotal seat on the U.S. Supreme Court that Sandra Day O'Connor would be vacating. Then the charade abruptly ended.
William Kristol wrote in The Weekly Standard that Bush had proposed "an unknown and undistinguished figure . . . for an opening that conservatives worked for a generation to see filled with a jurist of high distinction. There is a gaping disproportion between the stakes associated with this vacancy and the stature of the person nominated to fill it." (Emphasis mine.)
Well, exactly. And the "gaping-disproportion" line would've been a great one to describe Bush's bid for the presidency in 2000, too. Kristol had unwittingly turned Harriet Miers into a George W. Bush surrogate. The concerns that couldn't be voiced about Bush now surfaced by proxy. The great discussion was finally on, and this time the conservative intelligentsia wasn't, well, playing dumb anymore. The whole electorate could see that the right-wing pundits had really known all along, but had kept mum on a calculated bet that they could adequately supervise the boy-president and keep him on the rails.
Remember when Miers went around to meet key Senators in their offices, and several painfully admitted that while she was "decent" and "competent" . . . um ... er ...? "You've got an issue here," one Capitol Hill correspondent (for the Christian Broadcasting Network, yet) delicately put it on The Abrams Report, "where Harriet Miers has been a little, according to judiciary aides and others . . . a little slow on the uptake here in those meetings with the senators."
Soon the president's team came back at the ideological conservatives with the familiar artillery that had previously been reserved for Democrats. Bush/Miers stalwarts now mocked Kristol, Frum, Will, Krauthammer, et al., as Eastern Establishment elitists. On Howard Kurtz's Reliable Sources Frum responded: "It just shows how the White House has declined, that they can't write better talking points than that. I mean, in my day we would actually come up with an argument that worked. That's just silly." (Ah, that more gracious era, when White House speech writers concocted more plausible, specious talking points.)
Laura Bush then suggested that the anti-Miers crowd were "sexists"--much as Democratic opponents of Clarence Thomas had been tarred as "racists." But Frum candidly and brusquely dismissed the First Lady's comment for what it was: "obviously ridiculous."
It must have been a liberating, cathartic moment for the conservative intelligentsia. For even though Bush drew down Miers's nomination on October 27, 2005, the ideological right has never been able to resume its pre-Miers lock-step. As the Iraq war spiraled toward ever more undeniable fiasco, and the president's moral clarity kept preventing him from adapting to reality, the conservative pundits continued to distance themselves from their president. Eventually, so did the Republican stalwarts who had unsuccessfully backed him on the Miers nomination. Yes, he'd been incompetent in handling Iraq. Yes, he'd been incompetent in handling Katrina. Pretty soon, you had the Iraq Study Group, whose mere existence--put aside its unanimous conclusions--was an unprecedented, bipartisan statement that our president just wasn't up to the job.
Harriet Miers did all that? How can I prove it?
I can't. But that's how I experienced it. And it's my blog and I'll vent if I want to.
The Apple iWash: Steve Jobs's premature exoneration
Apple's SEC filing last Friday disclosing the outcome of its internal probe into options backdating is masterfully, tantalizingly opaque. Though entitled "explanatory note," the 20-paragraph document contains precious little explanation. It recounts that certain events did, indeed, occur at Apple, but sheds almost no light on how or why.
Investors greeted the announcement with glee--Apple's stock rose 4.9%--but I can't imagine why.
It must be because the Special Committee of outside directors who looked into the matter said they "found no misconduct by current management." At the same time, the committee said that its inquiry "raised serious concerns regarding the actions of two former officers in connection with the accounting, recording and reporting of stock option grants." The designated fall guys here, though unnamed, are widely reported to be former general counsel Nancy R. Heinen and former chief financial officer Fred D. Anderson, but each of their lawyers issued statements vociferously denying any wrongdoing. This seems to set the stage for some lively he-said, she-said colloquy before federal regulators or prosecutors, and would not be prodding me to buy Apple stock at the moment.
The most intriguing factual revelation of the filing, of course, was that one of the two enormous options grants that CEO Steve Jobs received was priced as of October 19, 2001, a good two months before the grant was actually finalized on December 18, 2001. The price of these 7.5 million option shares had increased 15% during the time lapse, from $18.30 to $21.01. Worse still, records had been falsified, the committee concluded, to make it appear as if a special board meeting had been held on October 19 to approve the options grant when, in fact, none had occurred. The SEC has noted in the past (sensibly enough) that an important factor it uses to distinguish accidental-and-innocuous backdating from serious, enforcement-action-worthy backdating is any evidence of falsification of documents. (By the way, the circumstances surrounding Jobs's other options grant--for 10 million shares--were also fishy, as the New York Times describes toward the end of this good article.)
But here's the mysterious crux of the filing: "Although the investigation found that CEO Steve Jobs was aware or recommended the selection of some favorable grant dates, he did not receive or financially benefit from these grants or appreciate the accounting implications."
Let's unpack that sentence. What would it mean to "recommend the selection of some favorable grant dates"? I can think of three possibilities.
Scenario one is, he said something like: "Let's grant options as soon as we can since, in my opinion, our stock is generally undervalued at the moment." Nothing wrong with that at all. But if that's all he did, I can't believe they'd even be disclosing it, let alone doing so in such ominous terms.
Scenario two is: "Let's grant options now, since we're going to announce the release of our newest iPod next week, and our stock will soar." That would be spring-loading and, depending on what the directors were told and other variables, it could be a form of securities fraud.
Scenario three is: "Let's grant options today, but set the grant date as of two months ago, because our stock was much lower back then." That would be Backdating with a capital B, and under most circumstances it would be illegal.
So problematic scenarios sound more likely than innocuous ones. More worrisome still, the only reason we have to guess this way is that Apple chose not to tell us precisely what the special committee thinks Jobs did. I guess it concluded that the nitty-gritty just wouldn't interest us.
We're then told that no one needs to worry about whatever it was that Jobs "recommended" regarding "favorable grant dates" because "he did not receive or financially benefit from these grants or appreciate the accounting implications." That clause contains three arguments, so now let's look at those.
The first is: We don't have to worry about whether Jobs was trying to backdate or springload options because "he did not receive" some or all of the options in question. Well, his not having personally received the backdated options is no defense to anything. If he was knowingly giving someone else backdated options, he could still be deceiving shareholders and the IRS, and he could also be unfairly gaining an advantage over law-abiding competitors in the labor pool by being able to offer Apple employees illegally priced (i.e., improperly accounted for) options.
The second argument is: We don't have to worry about whether Jobs was trying to backdate or springload options because "he did not . . . financially benefit from these grants." Again, this is no defense. If a hypothetical CEO gave himself backdated options in a effort fraudulently to deceive shareholders and enrich himself, that attempt would be a completed crime regardless of whether the dot-com bubble subsequently burst before he could capitalize on the attempted fraud. (The bursting of the bubble did, in fact, wipe out the value of all Jobs's options. Apple replaced them with 5 million shares of restricted stock, worth almost $75 million, in 2003.) And if a hypothetical CEO gave someone else backdated options, then it's hard to believe that he really wasn't benefiting financially--albeit indirectly. His company would have been benefiting--it was able to offer higher compensation to employees than its law-abiding competitors could--and anything that benefited the company would have indirectly enhanced the CEO's compensation and the value of his stock.
The third claim is that we don't have to worry about whether Jobs was trying to backdate or springload options because he didn't "appreciate the accounting implications." Well, that's getting closer to a defense, but I still don't think he's there yet. None of us fully appreciated the accounting implications of awarding in-the-money options at that time; the rules were excruciatingly complex and everyone twisted themselves into pretzels to avoid ever having to grapple with them. The relevant question is whether Jobs understood that backdating was morally or legally wrong--and the filing doesn't tell us the answer to that one.
Furthermore, even if Jobs says he didn't understand that backdating was illegal or wrong, and even if we believe him, I'm still not sure that gets him out of the woods. Yes, ignorance of the law is a defense to some white-collar crimes (mainly tax offenses), but it's not a defense to most others. (Look at Pattie Dunn, the former chairman of Hewlett-Packard (HPQ), now facing four state-law felonies for having conducted an investigation that two top in-house attorneys repeatedly kept assuring her was A-okay.)
To me, Friday's filing does not look like the curtain closing on this particular play, but more like the curtain closing on Act I, Scene I. What do others think--am I missing something?
AMD wins crucial discovery ruling in its antitrust case against Intel
You may have noticed puzzling squib items in the newspapers in the past couple weeks suggesting that microprocessor maker Advanced Micro Devices (AMD) had won some sort of sketchily described victory in its federal antitrust case against industry-leader Intel (INTC). Well, it did, and the court ruling was a big one.
It basically ensures that AMD will be able to require Intel (and dozens of third party computer makers, distributors, and retailers) to turn over documents relating to Intel's business practices outside this country, which is where most of the computers containing the parties' chips are now sold. AMD's securing that right was crucial to its ability to prove its case, which accuses Intel of illegally maintaining a monopoly in the global marketplace for x86 microprocessors, the electronic brains that power almost all PCs that run Windows or Linux operating systems. Since 68% of the computers containing x86 processors are sold to customers abroad, evidence about Intel's "foreign conduct" was "essential" to allowing AMD to make out its case, according to a December 15 ruling by Special Master Vincent Poppiti, who has been appointed to handle discovery disputes in the case.
Poppiti's 23-page ruling then became binding on December 27, when Intel filed a letter with the federal court in Wilmington, Delaware, declining to appeal Poppiti's ruling to U.S. District Judge Joseph Farnan, who is presiding over the case. (Poppiti is a former Delaware state court judge.)
Some readers might find it odd that AMD's ability to seek such discovery would ever have been in doubt. But Intel had argued that AMD lost that right on September 26, when Judge Farnan ruled that a 1982 statute deprived the U.S. courts of jurisdiction over all of AMD's claims stemming from any "foreign harm" it suffered from "foreign conduct." However, Poppiti's interpretation of that ruling--which Intel has no chosen not to appeal--indicates that Judge Farnan's ruling will only affect the extent of the damages AMD can seek, not it's ability to prove its case, which hinges on examining Intel's conduct worldwide.
Though most U.S.-based exporters are totally unaffected by the 1982 law--they can sue in U.S. courts to recover for any harms to their export business regardless of where in the world their products are being sold--AMD has not qualified as such an "exporter" since 2002, Judge Farnan ruled in September, because that's when it phased out the last of its U.S. silicon wafer fabrication plants (in Texas). Since then, all of AMD's microprocessors have been made at its wholly-owned fabs in Germany. Intel argued--and Judge Farnan agreed--that since then AMD has no longer been a U.S. exporter of chips; instead, it's simply been a foreign chip manufacturer. Accordingly, he concluded, unless those chips make it back into the United States (which most don't), U.S. courts have no jurisdiction over any injuries AMD may suffer from Intel's conduct abroad.
I wrote about Judge Farnan's ruling in an earlier post, which is available here. (The post has sentimental significance to me, since it was my very first.) I also did a "big heave" on the AMD v. Intel litigation in the issue of Fortune cover dated August 21, 2006, which is available here.
The case has a ways yet to do go, which is probably why I'm one of the few reporters paying much attention to it. Judge Farnan has set it down for trial on April 21, 2009 (sic).
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