Bar News - October 5, 2007
Book Review: Copyright Litigation Handbook by Raymond J. Dowd
By: A book review by Lawrence D. W. Graves
Thomson West Publishing 2007 edition available at www.thomson.com.
The Copyright Litigation Handbook is intended to serve primarily as a handy reference work for trial counsel in court, with secondary utility as a law office reference–but it is an uneven resource. Viewing the book through that lens, I offer the following comments:
The work consists of 821 pages plus indices, but almost 400 of those pages are appendices, leaving a slender volume to cover a rather broad subject. This space allocation is probably an editorial one, and it is quite in line with the poor quality of editing of the book in general. Most questionable to me is the devotion of over 100 pages to the inclusion of the bare Rules of Evidence and of Civil Procedure. Trial lawyers would not likely forego their annotated rules handbooks in favor of the appendices of this work. The space that could have been saved by omitting those appendices could have permitted at least selective annotation of the Copyright Act instead of the bare statute — however, even the latter is of some use.
Again, in light of the purpose of the work, the scholarly opening on the history and development of the U.S. Copyright Act seems unnecessary, unless one intends to re-litigate the recently settled issue of the unconstitutionality of indefinite term extensions. Discussion of the development of the law abruptly ceases after §1.2, only to be taken up in much more practical terms in §4.18 (the intervening text being unrelated).
Chapter two is full of excellent advice on the intake phase of new matters involving copyright issues. The guidance and warnings about the consequences of “cease and desist” letters are particularly valuable and merit close reading. Sandwiched in the middle here is Chapter three pertains to litigation involving the Copyright Office, the infrequency of which would have suggested relegation to the end of the work if it had to be included at all.
The title of Chapter four (“Calculating Dates Prior to Commencing Litigation”) misdirects the reader and suggests a unifying theme not reflected in the contents. Putting that aside, however, the discussion of copyright duration is quite excellent, and the chart in §4:25 is useful for those who understand the shorthand terms used.
Chapter six provides solid assistance in drafting infringement complaints. It is useful to read Chapter 15 on Jury Instructions as a companion piece. I do quibble with the writing of §6:27, which, by use of the phrase “transitory cause of action” fails to clearly communicate the essential point that copyright claims are properly brought where the defendant is infringing upon copyright (even if the copyright exists under non-US law); that term of art is known (if at all) by international lawyers rather than copyright litigators, and is thus likely to confuse the reader.
Chapter seven is good as far as it goes, but both here and in §12:11 the discussion of licenses is inadequate in light of the amount of litigation between licensors and licensees. There is not even mention of the dichotomy between express and implied licenses. One can only observe that a litigator’s view of copyright law is shaped in large measure by the cross-section of cases that happen to come in, and perhaps the author’s practice did not involve this issue (which I have chanced to have in my last two cases).
My view of Chapter eight (motion practice) is that most is tied-in with specific copyright cases, but some is only sketchily connected to copyright law issues, and to the extent that it merely addresses basic motions under the Federal Rules, it is so much wasted space. (This same criticism is much stronger for Chapter 13 [discovery], which treats copyright issues specifically only in §§13:8-9.)
Chapter nine, on removal of actions to federal court, is among the better parts of the work. Likewise, Chapter 10 treats the unique aspects of class action litigation in the copyright context, where single plaintiffs have claims against classes of infringer defendants. I was also favorably impressed by the treatment of preliminary and permanent equitable relief in Chapter 11, particularly because it draws attention to the problems posed to successful plaintiffs in posting bonds.
As noted above, I found Chapter 12 in need of expansion; what is there is good, but practitioners would need much more depth even to commence researching any of the named defenses. Chapter 14 on Evidence has enough useful content that I would be tempted to have it handy in a hearing (next to my Rules book), but would want to have some binding precedent handy to reinforce the cases.
The eclectic mix of jurisdictions sampled for this work by a 2nd Circuit litigator was something of a curiosity — the jury instructions reproduced in Chapter 15 were taken from the 9th Circuit....At the end of the text is the treatment of damages and attorneys’ fees in Chapters 16-7, which are well-written. Although well-known to copyright litigators, the restatement of the temporal relationship between registration and infringement as a condition for an award of attorneys’ fees is a useful warning to the general litigator.
Perhaps we should no longer be surprised when books are published without adequate proofreading, but the extent of substantive errors in this work is so serious that I would never rely on a sentence without verifying it.
Consider in this vein the following text from page 27: “Unavailability statutory damages or attorney’s fees does automatically render a copyright infringement action unworthy of pursuit.” (sic) The grammar-checking function of any word processing software should have revealed the missing preposition “of” after the first word, but the missing “not” after “does” changes the entire meaning of the sentence/fragment.
I was also disappointed by the apparent inability to produce legible pages from downloads of the U.S. Copyright Office’s Web site (p.16 is bad, 17-26 atrocious).
And, while airing some of my pet peeves, I note with further disapproval the intra-West touting of its own products, which I would have expected the author to overrule. The exclusive recommendation of a West product (though perhaps damned with faint praise) on page 363 without fair mention of others is typical; far more insidious is the endorsement on page 67 as “the major” search service (owned by West’s parent Thomson) of a company that is only one of several competitors, and makes no mention of the Copyright Office’s own research services.
Lawrence D. W. Graves is a partner at Coolidge and Graves PLLC in Keene, NH and is a member of the Intellectual Property Law Section of the NH Bar Association. He has been a member of the NH Bar since 2004.