Sunday, August 22, 2010

The Sly Rabbit and the Three C's: China, Copyright and Calligraphy

My latest law review article, The Sly Rabbit and the Three C’s: China, Copyright and Calligraphy, has just been published as a Feature Article in Volume 7, Issue 2 of the Loyola University Chicago International Law Review (Spring/Summer 2010) at pages 163-191. The Law Review has not yet posted Issue 2 on its website, however I understand it will do so in the near future. When posted, the article will appear on the Review’s site, which is found at:

The “Sly Rabbit” portion of the title refers to a classic Chinese proverb that reads: “A sly rabbit will have three openings to its den”. In the context of my article, I am suggesting that in order to successfully create an environment in China where enforcement of copyright laws will be successful, it will be necessary to use a multi-faceted approach. The approach the West has used, with spectacularly unsuccessful results, has been to try to get China’s government and society to enforce the rule of law as a means of protecting copyright rights.

My research into Chinese history led me to conclude that this effort fails not simply because the Communist Revolution in China rejected private ownership of copyright, but more importantly that attempting to protect property through a legal structure was an approach that had been rejected over a thousand years ago. The use of law as the foundation for governance failed when the Imperial family and its ministers rejected the doctrine of Legalism in favor of the morality based approach of Confucianism. The use of law to attempt governance in traditional Chinese society is viewed as evidence of a moral failure – and the idea of elevating the needs of the individual over the needs of society as a whole is viewed as vulgar and crass, lacking in any sense of spirituality and moral values.

So the task of creating an environment in China where enforcement of copyright laws will be successful requires more than the legal approach. I suggest that by combining an approach based in economics, coupled with the creation of stakeholders in Chinese society who themselves can benefit from copyright ownership; there is a greater likelihood for developing broad acceptance of copyright’s benefits to the society.

So where does calligraphy fit in? I use the example of contemporary artists in China, some of whose work focuses on a re-envisioning of traditional calligraphy as an art form, as one place where these three approaches are developing more acceptance of copyright and its benefits. Many of these new artists have been able to sell their works, both in China and abroad, for millions of dollars. They are treated like rock stars, with loyal fans and collectors around the world. Their work has not fallen prey to the notorious copyright infringers in China, because their fans protect them, the art community recognizes the economic benefit accruing to them, and the copyright laws protect them as well.

In a bit of serendipitous timing, a contrary example also hit my desk today. The August 22nd issue of The New York Times Magazine features a story by Nicholas Schmidle entitled “Inside the Knockoff Factory”, which profiles the activities of Southern Chinese factories which manufacture millions of fake tennis shoes (primarily Nike), in a community environment that protects the manufacturers and has been impervious to legal efforts to shut them down. Schmidle's article illustrates and supports the point of my article. There are no stakeholders in Chinese society for whom protecting the Nike trademark is an important value. The economics of the knock-off market support this illegal activity, and no one in China is getting wealthy selling legitimate Nike shoes. Therefore, the effort to interdict this activity through the rule of law is doomed to failure.

I conclude my article by noting the difficulty of attempting to chart a prospective course for social change in a society, a difficulty greatly enhanced when the author is not a member of that society – that said, I suggest that the language of the historic proverb gives us a clue to the kind of multi-faceted approach to this problem that may hold out a chance for success. It seems worth trying, given our miserable track record to date, no?

A Blast From the Past: Justice Jesse Carter's Prescient Dissent in Kurlan v. CBS

A few years ago I was invited to join colleagues on the Golden Gate University School of Law faculty in writing a chapter of a jointly written book project. The subject of the book was the collection of dissenting opinions published by one of our most famous alumni, California Supreme Court Justice Jesse W. Carter. Justice Carter served twenty years as a member of the California Supreme Court, during which time he became known as the “Lone Dissenter” for the frequency and vehemence of his dissenting opinions.

The case I selected to write about was Kurlan v. CBS, 40 Cal. 2d 799 (1953). This case raised a variety of issues in entertainment law, including whether characters created for a book, and later used in a radio and television program, are entitled to separate protection under the law. They weren’t at the time, and the majority opinion does not extend the law to offer that protection. Judge Carter strongly argues that they should be entitled to this protection, and his was a prescient view, as characters which are clearly and strongly defined are now afforded such protection under federal copyright law.

Perhaps one of the oddest elements of the Kurlan case is the fact that it was litigated in state court, despite the predominance of copyright law related issues. This is significant since copyright law is exclusively federal law. My research led me to some explanations as to why the case was not brought in federal court, but rather than explain that here, I’ll just refer you to the book!

This fascinating review of Justice Carter’s dissents can be found in The Great Dissents of the “Lone Dissenter”, (2010) published by Carolina Academic Press, ISBN No. 978-1-59460-810-0. Copies are available on Amazon and other online book sites.

The Tech Writers’ Dilemma: Exempt Professional or Hourly Employee: The Sun Microsystems Case Settlement Leaves the Problem Unresolved

In May 2008, a Santa Clara County Superior Court judge made tech industry news when he issued an Order granting Sun Microsystems tech writer Dani Hoenemier’s motion to certify a class action lawsuit. (Hoenemier v. Sun Microsystems, Case No. 106CV-071531, Santa Clara County Superior Court) The claim at issue was that tech writers at Sun were working 60 hour weeks, without meal breaks and related benefits, in violation of California labor laws (Cal. Labor Code § 510).

Sun’s position, mirrored by most of the tech industry, was that tech writers were exempt professionals as employees in the computer software field, per Labor Code § 515.5. Further complicating the issue, many tech writers also supported the exempt characterization, desiring more autonomy in work hours, and the ability to telecommute. There was a concern on the part of these writers that they would lose valuable independence if they were deemed non-exempt hourly workers.

In granting the Order certifying the class, Judge Jack Komar cited California Labor Code § 515.5 as a section of the law which would need to be addressed in the litigation. While this section generally exempts computer software professionals from the overtime compensation laws, tech writers appear to fall into a non-exempt category, per subpart (B)(5) of the section, which provides:

b) The exemption provided in subdivision (a) does not apply to an
employee if any of the following apply:

(5) The employee is a writer engaged in writing material,
including box labels, product descriptions, documentation,
promotional material, setup and installation instructions, and other
similar written information, either for print or for onscreen media
or who writes or provides content material intended to be read by
customers, subscribers, or visitors to computer-related media such as
the World Wide Web or CD-ROMs.

A few weeks ago, on July 21st, Santa Clara County Judge Joseph Huber gave preliminary approval of a $5 million dollar settlement of the suit, resulting in an average $21,000 payout to the 152 tech writers listed as plaintiffs in the suit. A hearing is set for October 8th to grant final approval of the settlement. In the two years the suit was working its way through the legal system, a number of tech companies, including Oracle (which bought Sun in February for $7.4 billion), have changed their policies and are now paying overtime to tech writers.

While it seems clear to me that Section 515.5(B)(5) carves out tech writers from the exemption of software professionals from wage and hour rules, it remains an open question whether the settlement of this case, which leaves some uncertainty about the applicability of the Labor Code section, will serve as impetus for an industry-wide change of approach, or whether it will take a fully litigated case to deliver a definitive answer to this issue. A similar concern, whether software engineers are deemed employees or independent contractors, has bedeviled the industry for years.