When is it a good idea to drop a cultural reference into a lawsuit?
In a recent copyright infringement case, lawyers at the Electronic Frontier Foundation and Keker & Van Nest used goblins and wizards in successfully attacking Universal Music Group’s argument.
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Last year UMG sued Troy Augusto, a music collector who sells promo CDs on eBay, for 26 auction listings. The question was whether “promotional use only, not for sale” labels on those CDs could trump Augusto’s right to resell materials that he had bought at second-hand stores. That right is protected by copyright law’s “first sale” doctrine, according to the EFF.
To make their point, the defense lawyers led their brief with a citation that might've been styled Potter v. Deathly Hallows.
EFF staff attorney Corynne McSherry said you want to be judicious in your references so that judges don’t get the impression that you’re being too cute. At the same time, judges are human beings, she said. “You can give a serious presentation while at the same time introducing a little bit of humor, or cultural context.”
On the flip side, there’s always the danger that the judge wouldn’t get it, co-counsel Joseph Gratz went on. “In some ways, it’s like using humor in a brief. It’s a difficult thing to do well. In this case, I hope that the judge and his clerks are big Harry Potter fans with whom this resonated.”
So how’d they pull it off?
The brief starts like this:
I. INTRODUCTION
Bill Weasley: To a goblin, the rightful and true master of any object is the maker, not the purchaser. All goblin-made objects are, in goblin eyes, rightfully theirs.
Harry Potter: But if it was bought—
Bill Weasley: —then they would consider it rented by the one who had paid the money. They have, however, great difficulty with the idea of goblin-made objects passing from wizard to wizard. …
They consider our habit of keeping goblin-made objects, passing them from wizard to wizard without further payment, little more than theft.
—J.K. Rowling, HARRY POTTER AND THE DEATHLY HALLOWS 517 (2007).
This case poses a simple question: does the secondhand sale of a music CD bearing a “promotional use only” legend infringe copyright law? Like the goblins in J.K. Rowling’s “Harry Potter” books, plaintiff and counter-defendant UMG Recordings, Inc. (“UMG”) maintains that the eternal owner of the object is the maker, rather than the purchaser, at least where these “promo CDs” are concerned. That view, however, is no more the law under the Copyright Act than it is in the fictional world of Harry Potter.
Gratz, who worked on the brief with fellow Keker associate JuNelle Harris, said, “Here, we thought it was a good way to bring home a point: When you buy something at a store you have a legitimate expectation that you can sell it at a store, too.” Whether or not it helped in getting summary judgment granted (.pdf), Gratz said that in his mind, “The fact that this very argument was put in the mouth of a fanciful creature in a fictional world drove home the message that UMG’s claims were really going beyond what the copyright law allows.”
All right — but who pulled that specific Potter quote out of their hat?
McSherry said it was EFF attorney Fred von Lohmann who came up with the idea.
So von Lohmann — on vacation and unreachable this week — is some kinda big Harry Potter fan?
“Isn’t everybody a Harry Potter fan?” she asked, laughing. “Who’s not a Harry Potter fan?”
— Petra Pasternak
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