Saturday, July 18, 2009

“Overlawyered” or Just Over Simplistic

There seems to be a trend with some commentators who, in their desire to push-back against copyright law, are distorting the truth in an attempt to influence the debate. These people are not necessarily wrong in the trepidation regarding copyright law--their arguments, however, are not well reasoned and lack a fair assessment of the legal system, federal litigation, or the Copyright statute. It is their tactics not their message for which I take umbrage.

One such example can be found on Walter Olson's blog Overlawyered. In a June 5, 2009 post, Mr. Olson quotes Kathleen Fasanella, a 27 year veteran of the apparel industry, as saying that the copyright legislation titled the Design Piracy Prohibition Act "will be enough to sink many small apparel and fabric firms that can’t afford lawyers to fight big firms' infringement claims." It is this type of quote that currently seem to be driving the debate on the scope of copyright law.

While I admit to enjoying Mr. Olson's blog from time to time, his post was irresponsible. His arguments against copyright protection are classic examples of the logical fallacy of the scare tactic--where a person reduces complicated issues to overly-simplistic undesirable outcomes and exaggerates possible dangers beyond their likelihood. To simply make such comments that individuals and small businesses of limited means are unable to protect themselves from overly litigious corporations is unsubstantiated and does not take into account economic realities of business or the legal procedures available to litigants.

For instance, if an individual or small business is sued for copyright infringement and they have not infringed, they have several protections available to them in the Federal Courts including summary judgment and Rule 11 sanctions for the filing of frivolous law suits. These procedural safeguards are useful in efficiently defending baseless lawsuits and can even result in the Defendant receiving an award of attorney fees and the other costs of their defense.

If the small business or individual did infringe (they should not expect to be allowed to violate a copyright with no consequences should they?) they can still limit their liability through a quick and reasonable Rule 68 Offer of Judgment. The Rule 68 Offer of Judgment has the attractive benefit of either settling the case quickly and in a reasonable fashion before much in the way of litigation expenses are incurred or shifting the burden of the costs of the litigation to the plaintiff for being unreasonable.

Furthermore, in the current business environment how many large corporations are looking to task resources (both time and money) litigating against small businesses and individuals unless they have a serious claim that pasts muster under the most strict cost/benefit analysis?

Copyright law is always trying to strike a fine balance between protecting authors rights in their works--thereby giving them an economic incentive to create--and protecting the public's' access to these works. While I agree we must stay vigilant to keep copyright law in a state of equilibrium between these often competing public policies, we must not fall victim to such unsubstantiated arguments like the ones described in the post cited above. Great harm is often the result of building public policy on a foundation of fear instead of reason.

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