The ongoing legal battle between original Star Control creators Fred Ford and Paul Reiche III and Star Control: Origins developer Stardock escalated significantly on the last day of 2018. Following a favorable court decision, Ford and Reiche filed DMCA takedown requests with Steam and GOG over allegations that Star Control: Origins infringes on Ford and Reiche’s copyrights. Steam and GOG both removed Star Control: Origins from their respective stores, cutting off significant revenue sources for Stardock.
The move is the latest in a nearly year-long legal battle (which itself had been brewing for at least several more years before evolving into actual litigation) between Ford and Reiche and Stardock. At issue is the convoluted mess of copyrights and trademarks that make up the Star Control universe; the outcome of the case appears to hinge on a decades-old agreement between Ford and Reiche and defunct developer Accolade—and how that agreement’s dissolution affected ownership of the Star Control IP.
The shortest recap I can give
Recapping the course of the lawsuit—lawsuits, properly, since there are multiple suits proceeding apace—would take a considerable amount of time, but the short version is that several years ago, Stardock purchased the “Star Control” name and trademark and a bunch of rights related to Star Control 3, with the intent of making a new Star Control game that would eventually come to be known as Star Control: Origins. Stardock reached out to series creators Ford and Reiche multiple times over the years asking for their involvement and blessing, but Ford and Reiche appeared to be apathetic about the game’s development.
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Yesterday we published the first part of an analysis by copyright lawyer Rick Sanders who wrote up a thorough analysis of the recent 9th Circuit decision to overturn the jury verdict in a case involving whether or not the Led Zeppelin song “Stairway to Heaven” infringed on another song. The first part described how the 9th Circuit might be correct a problematic “test” for infringement, and this part analyzes the problems with the jury instructions.
Last time, I explained why I thought the Ninth Circuit’s recent vacating and remanding of the jury verdict in Led Zeppelin’s favor was, long-term, a good thing for copyright law (even if I kind of liked the verdict and am genuinely sorry for Led Zeppelin). The reason is that the reversal gave one panel of the Ninth Circuit an opportunity to try to fix the Ninth Circuit’s unhelpful legal framework for determining copyright infringement.
But that isn’t why the panel reversed. While the panel did make some suggestions about how to present the “inverse-ratio” rule to the jury, the way it was presented to the original jury isn’t what merited reversal. What merited reversal was the lack of another jury instruction about a basic and uncontroversial principle of copyright law that the parties agreed should have been there in some form. In short, the case is being reversed — and the Ninth Circuit is getting a chance to fix its own weird copyright law — because of what appears to have been a brain fart.
Jury Instructions: An Introduction
We all gasped when we heard about the reversal. Jury verdicts are hardly ever reversed. One of the few ways a jury verdict can be thrown out is if the jury was badly instructed in the law. Juries, naturally, don’t bring any knowledge about the law with them when they serve. That’s not their job, really. Their job is to weigh evidence, make credibility determinations, and so forth. But at some point, they need to be told what the law is, so they can take all that evidence they weighed and apply it to the law and render a verdict. How this is accomplished might surprise you.
There are several ways for jury instructions to be prepared and delivered to a jury, but the main way is this. First, the parties’ attorneys confer about what jury instructions they can agree on and jointly submit those instructions to the court. In this, they are aided by pattern jury instructions prepared at the circuit court’s direction. But pattern jury instructions don’t cover every aspect of every area of the law. You’d need ever-updating volumes to do that. Also, the pattern jury instructions aren’t unassailable: a party might disagree with one and explain how it should be and why.
For all other jury instructions, the parties submit their own versions of instructions they think address all of the legal issues being raised at trial, together with a short explanation of the legal authorities for their versions. The judge decides which version to use, or the judge might even craft his or her own version based on their own research.
Are the instructions then typed up, collated and distributed to the jurors in a neat binder? No! The judge reads them to the jurors, at the very end of the case, during what is called the “jury charge.” The jurors have to memorize the instructions (though they can ask to re-hear specific ones later during their deliberations).
“Selection and Arrangement”: An Introduction
In this case, the parties agreed that they needed an instruction about what to do with a work that is made up of unprotectable elements. Just because your work is made up of lots of unprotectable elements, that doesn’t mean your work as a whole can’t be protected by copyright. If you put those unprotectable elements together in an original way, then the way you put those elements together is protectable, though not the individual elements themselves. After all, you can theoretically dissect any creative work down into non-protectable elements: individual notes, individual words and phrases, individual brushstrokes, etc. It’s what you do with those non-protectable elements that counts. Courts call this “selection and arrangement,” which makes it seem more abstract than it is.
In this case, the plaintiffs hold the copyright in the song “Taurus,” which has for years been rumored as the inspiration for Led Zeppelin’s “Stairway to Heaven.” (But inspiration isn’t infringement! Well, at least, not necessarily.) When the plaintiffs finally got around to suing, Led Zeppelin argued (among other things) that any similarities between the songs were only for non-protectable elements, like the use of the chromatic scale. Plaintiffs argued that, even if that were true, the “selection and arrangement” of those elements were original (and, by implication, that “Stairway to Heaven” took that selection and arrangement).
Both parties recognized the need for an instruction on this issue. They disagreed on what it should say. They submitted competing instructions for the judge to consider. Then came the jury charge, at the very end of the case, just before the jury began deliberations. The judge began to read the instructions. Now, normally, a party would have an opportunity to object on the record to an instruction. This is a prerequisite to complaining about it on appeal. But the judge here didn’t want to hear any objections. He reasoned that, if the parties disagreed about an instruction in their submissions, it was reasonable to assume that they would object to an instruction that didn’t match what they’d submitted.
The parties waited for the instruction about what to do with works made up of unprotectable elements. It never came. This was good for Led Zeppelin, though not ideal. On the one hand, since Led Zeppelin had presented evidence that all they’d taken (if anything) from “Taurus” was not protectable, such an instruction couldn’t help their argument, no matter how it was crafted. On the other hand, it was foreseeable at the time that the missing jury instruction could imperil a jury verdict in Led Zeppelin’s favor (assuming they could focus on it with 500 other things going on at that moment.
On appeal, the strongest argument — that trial court was correct not to give the instruction — wasn’t really available to Led Zeppelin because even it had suggested an instruction. (Led Zeppelin tried anyway.) Instead, it had to argue that the missing instruction made no difference to the jury’s deliberations. That’s where another major goof with the jury instructions came in.
Copyright’s Broad Scope
Nearly all copyright cases will need an instruction about originality. Without “originality,” there is no copyright. Originality, however, is pretty easy to achieve. All that’s really required is that the work be expressive (i.e., not just ideas) and the product of a human mind. This last requirement not only excludes things like the “monkey selfie,” but also things like underlying facts, which exist independent of human thought; and stock “tools of the trade” commonly available to everyone in the creative field, like stock characters, computer code that everyone uses, certain three chord progressions, and so forth (what lawyers call “scènes à faire”). It also excludes material the author copied from other works (including those in the public domain), but only if the author actually copied them. Originality doesn’t mean novelty, just that it’s the author’s independent expression.
Originality is so basic to copyright law that there’s actually one of those “pattern jury instructions” about it. Pattern jury instructions aren’t law and aren’t always appropriate in every instance, but departure from them demands explanation. The court took the model instruction and added the stuff in bold and took out the stuff that’s been
An original work may include or incorporate elements taken from works owned by others, with the owner’s permission. However, any elements from prior works or the public domain are not considered original parts and not protected by copyright. Instead, [t]he original parts of the plaintiff’s work are the parts created:
1. independently by the work’s author, that is, the author did not copy it from another work; and
2. by use of at least some minimal creativity.
In copyright law, the “original” part of a work need not be new or novel.
You might detect a pattern here (as it were). The instruction about how to treat works consisting of non-protectable elements was left out. Now the instruction about originality includes a new sentence that emphasizes how non-protectable elements aren’t protectable, without telling the jury that those non-protectable elements can be selected and arranged in a protectable way.
What it Means to Create
I don’t know if copyright has a single “heart.” Perhaps, like an octopus, it has several hearts. But surely one of copyright law’s hearts is that creativity can and often does build on the work of others. This idea is echoed in fair use. And it is echoed in the non-controversial idea that not every element of a work must be protectable for the work to be entitled to copyright protection. “Selection and arrangement” is just a stilted and abstract way of saying: if you give 100 kids the same collection of 100 lego bricks, you will have 100 different original works in about 30 minutes, even though no single lego brick is protectable and even though the 100 different original works will naturally share certain techniques in common.
These two errors in the jury instructions aren’t just about technicalities of a highly technical law. Goodness knows there’s a lot of those in copyright law. No, they go to one of the basic tenets of copyright law: what it means to create.
My charitable interpretation of all this is that the court had a major brain fart that Led Zeppelin’s lawyers didn’t see coming or didn’t fully understand how perilous the consequences would be. The other interpretation is that this was a legal strategy that worked too well and backfired badly. It’s too bad. I strongly suspect that a correctly instructed jury would have come to the same verdict, but the scale of this mistake is such that we can’t safely assume that. I also strongly suspect Led Zeppelin will prevail on remand—after incurring more expense, lost time and anxiety.
Rick Sanders is a trademark, trade secrets and copyright litigator and a founding partner of Aaron & Sanders, PLLC. From 2012 to 2014, he was an adjunct professor at Vanderbilt University Law School, where he was teaching Copyright Law. He blogs at IPBreakdown and tweets at @RickSandersLaw.
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Here we go. For years I’ve been talking about how we really need to move the web to a world of protocols instead of platforms. The key concept is that so much of the web has been taken over by internet giants who have built data silos. There are all sorts of problems with this. For one, when those platforms are where the majority of people get their information, it makes them into the arbiters of truth when that should make us quite uncomfortable. Second, it creates a privacy nightmare where hugely valuable data stores are single points of failure for all your data (even when those platforms have strong security, just having so much data held by one source is dangerous). Finally, it really takes us far, far away from the true promise of cloud computing, which was supposed to be a situation where we separated out the data and the application layers and could point multiple applications at the same data. Instead, we got silos where you’re relying on a single provider to host both the data and the application (which also raises privacy concerns).
Despite some people raising these issues for quite some time, there hasn’t been much public discussion of them until just recently (in large part, I believe, driven by the growing worries about how the big platforms have become so powerful). A few companies here or there have been trying to move us towards a world of protocols instead of platforms, and one key project to watch is coming from the inventor of the web himself, Tim Berners-Lee. He had announced his project Solid a while back: an attempt to separate out the data layer, allowing end users to control that data and have much more control over what applications could access it. I’ve been excited about the project, but just last week I commented to someone that it wasn’t clear how much progress had actually been made.
Then, last Friday, Berners-Lee announced that he’s doubling down on the project, to the point that he’s taken a sabbatical from MIT and reduced his involvement with the W3C to focus on a new company to be built around Solid called inrupt. inrupt’s new CEO also has a blog post about this, which admittedly comes off as a bit odd. It seems to suggest that the reason to form inrupt was not necessarily that Solid has made a lot of forward progress, but rather than it needs money, and the only way to get some is to set up a company:
Solid as an open-source project had been facing the normal challenges: vying for attention and lacking the necessary resources to realize its true potential. The solution was to establish a company that could bring resources, process and appropriate skills to make the promise of Solid a reality. There are plenty of examples of a commercial entity serving as the catalyst for an open-source project, to bolster the community with the energy and infrastructure of a commercial venture.
And so we started planning inrupt – a company to do just that. Inrupt’s mission is to ensure that Solid becomes widely adopted by developers, businesses, and eventually … everyone; that it becomes part of the fabric of the web. Tim, as our CTO, has committed his time and talent to the company, and I am delighted to be its chief executive. We also have an exceptional investor as part of the team.
I’m certainly hopeful that something significant comes of this, as it truly is an opportunity to move the internet into that kind of more distributed, less centralized/silo’d world that shows off the true power of the web. I have heard some grousing among some people that this is just Tim Berners-Lee just rebranding the concept of the Semantic Web that he started pushing nearly two decades ago, without any real traction. And, of course, there have been plenty of other attempts over the decades to build these kinds of systems. As it stands right now, there are a few other projects that are getting some traction, including the more distributed social platform Mastodon or some of the ideas that have come out of IndieWeb.
That said, we may finally be entering an era where both users and companies alike are recognizing the benefits of a more distributed web and the downsides of a more centralized one. So it really does feel like there’s an opportunity to embrace these concepts, and it’s good to see the founder of the world wide web ramping up his efforts on this. If it produces real, workable solutions, that would obviously be fantastic, but at the very least if it gets more people just thinking about these concepts, that would also be useful. So, this should be seen as big news for anyone concerned about the powers of the largest internet companies (especially if you’re skeptical about government trying to step in to deal with those companies when they don’t know what they’re doing). While the details and implementation will matter quite a bit, it’s exciting to see more movement towards a world in which the data layer is not just separated out, but where end users will be able to fully control that layer themselves, and potentially choose which apps can access what (and for how long). It certainly opens up a real opportunity to bring back the early promise of a truly decentralized web… and that would be a web built on protocols rather than centralized, silo’d platforms.
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