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Copyrights & Wrongs

Posted by Rick · November 3rd, 2003 · No Comments

Martin Sutherland writes about his reaction to news of a lawsuit by one of his favorite authors against a gaming company: Activision.

There are a number of interesting issues embedded in his comments.

Disclaimer: I am a law student; not a lawyer. Even if I were a lawyer — and in the future when I become a lawyer — nothing I write in my blog should be taken as legal advice, even if it appears to be legal advice. Any given case is going to involve its own set of facts and all legal issues relating to a specific case need to be addressed by a real lawyer who has investigated and evaluated the particular set of facts for that issue.

The first thing that bothers Martin is the perceived increasing ease with which copyright lawsuits in the United States can be brought. Secondly, he notes the willingness of large groups, like the RIAA, to use lawsuits for purposes of extortion. (I’ve written on such corporate abuses myself.) Lastly, for purposes of my blog entry here, he alludes to the greed of those claiming to seek redress.

The easiest of these issues to dispose of are the increasing-ease-for-suing issue and the greed factor.

The law itself in regard to the ease of filing a suit doesn’t seem all that different from past years. What has changed is the willingness of people to turn to courts in the first place. And when I say, “in the first place,” I mean both that the first problem is with people being more willing to turn to courts and that they more often turn first to courts rather than trying to work things out in some other way. The law, however, has always allowed people to sue on claims for which they believe they have a right to sue — you don’t even always have to hire a lawyer. Generally speaking, the cost of the suit is expected to serve as a deterrent to frivolous claims. In some courts (e.g., federal courts), there are rules which help with this; Federal Rules of Civil Procedure, rules 11 (pertaining to the filing of frivolous actions), as well as 26, 36 and 37 (pertaining to admissions, discovery and depositions) make maintaining a frivolous lawsuit that much more difficult. Although the latter rules (26, 36, 37) aren’t “frivolous lawsuit” sanctions, admissions, discovery and depositions properly followed will quickly reveal the frivolous nature, if present, of a particular suit. One would then turn to Rule 11 for sanctions.

As for the money (e.g., awards) involved, these are simply blatantly overstated. Ironically, the overstatement has helped lead to some frivolous lawsuits. More often, however, it leads to greater control of the hoi polloi by the rich and powerful. If they can convince “normal people” that lawsuit awards have gotten out of hand and threaten the very fabric of our economy, they can get you to vote for ridiculous caps on such awards. This will save you absolutely nothing, but it will save the rich from exposure to just penalties for the wrongs they commit against you.

Case in point: Remember the woman who sued McDonald’s when she was burned by hot coffee? One Internet fool summed up this case thusly:

Remember the lady who sued McDonalds for spilling hot coffee on her lap? She received three million dollars from Ronald. She claimed that she didn’t realize the degree of “hot” her coffee was. As well, McDonalds now has a disclaimer on each coffee cup that reads “Caution: Hot!!!”. Pardon my bluntness here but, how idiotic is this? What’s next? Your Big Mac wrapper has a sticker on it reading “Caution: Meat”? Why stop there? Let’s put warning labels on Twinkies: “Caution: White Goo Ahead”. Many of my friends think I’m a couple of tacos short of a burrito platter because I religiously play the lottery. – Marc Fisher, The Eyepiece Network (online)

Later in the same article, he provided the commercial McDonald’s and others would like to see run more often as to these kinds of lawsuits:

We, as a collective, should sue every Bonnie and Clyde lawyer each year when our cost of living increases. We’ll sue them for mental anguish brought on by lack of funds for heat and electricity. Ibid.

But isn’t that fair? Isn’t that right? Those freakin’ lawyers are costing our society a bundle of money!

Do you change your mind when you learn that the elderly woman who was burned only sued after McDonald’s refused to pay for the costs of the multiple surgeries required to repair third-degree burns (that is, burns that go all the way to the bone) over 6% of her body? What if you knew that a McDonald’s quality assurance manager testified on the witness stand that coffee sold by McDonald’s was unfit for human consumption because it would burn the mouth and throat, as served? What if you learned that it would take between two and seven seconds for coffee at this temperature to burn clean to the bone? What if you further heard that McDonald’s had over 700 claims against it for these burns, but said it was cheaper for them to rely on settlements, small jury awards or just wearing out potential claimants who couldn’t afford the legal battle? What if you learned that the jury, angered by that last admission of McDonald’s decided to send them a message — by awarding two days of coffee receipts as punitive damages?

That’s right. Two days. Of coffee receipts. Not “all receipts”; not “more money than they could earn back in a month” — only coffee, only two days. The $2.7 million gets a little different perspective at this point.

Then, of course, the judge himself thought that was excessive and overruled the jury, reducing it to $400,000 or less than a full day of coffee receipts, for permanent scarring and damage to the groin of the woman who had only sued after McDonald’s refused to pay her medical expenses.

How much did the cost to society go up when a jury decided that rather than skyrocketing health costs due to deliberately-induced burns, they would try to send McDonald’s a message by taking away two days of coffee receipts? And who is the greedy one? The old lady who wanted to pay her medical bills? Or the company that thought it was cheaper to burn people than to lower the temperature of their coffee?

So much for greed.

The most important issue, however, is the question Martin raises of extortion. This is a very real problem. Not only do large corporations increasingly use the mere threat of a lawsuit to quash even legitimate actions by those they oppose (see Not So Entertaining elsewhere on this blog), but real persons (e.g., humans, rather than corporations) cannot easily obtain legal representation even when they have clearly valid claims.

Robert Kuehn notes in the Washington University Journal of Law & Policy:

The number of lawyers working for the needy declined by about one-third since 1980, 5 with fewer than 20% of America’s lawyers performing any pro bono legal services. 6 The supply of this limited, free work is usually restricted to routine legal matters and often “goes to friends, relatives, and organizations likely to attract paying clients.” 7 Former President Jimmy Carter observed that “ninety percent of our lawyers serve ten percent of our people. We are over-lawyered and underrepresented.” – Robert R. Kuehn, “ACCESS TO JUSTICE: THE SOCIAL RESPONSIBILITY OF LAWYERS: Denying Access to Legal Representation: The Attack on the Tulane Environmental Law Clinic” (2000) 4 Wash. U. J.L. & Pol’y 33, 35.

The truth of the matter is that the legal system is already skewed in favor of the rich, the powerful and, increasingly, the corporate. It reminds me very much of Skynet hunting its hapless human creators. As corporations break the bonds our Founding Fathers had the prescience to place upon them, they become evermore a threat to real persons.

At least we had both real persons and Terminators (1, 2 and 3!) to help us fight Skynet. In the United States, in 2003, we have real persons doing everything they can to assist Skynet-like corporations by screeching to our politicians of the political damages wrought by the misperception, properly and dutifully marketed by modern-day Skynets, of lottery-style jury verdicts.

That’s what I think about when I hear of situations like my friend Martin describes.

Categories: Intellectual Property


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