People, Let Me Tell You ‘Bout Your Worst Friend

Tired of the endless political posts on Facebook?  It could be worse. Much worse. With apologies to the late Harry Nilsson (and Bill Bixby), imagine if your Facebook best friend posted something like this:

Hey, those people that you saw on the news killing cops? Yeah, they worked for me. They were confidential informants, so I’m glad they’re dead. But more importantly, I head up a the local group of anarchists and we are going to blow up the courthouse, and kill some cops and judges. We have explosives and a massive arsenal. We will accomplish this no matter the cost!

You would be pretty horrified, right? Not everybody-I-went-to-high-school-with-is-so-old-now horrified, I mean legitimately horrified. That’s essentially what the Samuel Bradbury did in 2014, according to yesterday’s 7th Circuit opinion. I’ve paraphrased his diatribe in my example to starve it of any additional notoriety, but the essentials are there: (1) a shout out to recent, public, violent crimes, and (2) voicing an intent to take similar violent actions (3) against law enforcement and judicial officers.

Then, in the comment section, responding to a question from a friend, Bradbury explained that the entry was “complete satire . . .. This is simply a big mind game and satirical joke. . . . [I]t’s made to get you to think.” Though he deleted the message soon afterwards, the police received screenshots and an investigation followed.

The investigation led to Bradbury’s arrest and a search of his bedroom in his parents’ home. (That Bradbury still lived with his parents is easily the least shocking part of this story.) In the bedroom, police found thermite and magnesium, which probably means Bradbury is either really creepy or enjoys underwater welding in his spare time. Still, the defense must have been partially successful. After a trial, Bradbury was only convicted of maliciously conveying false information, which he appealed.

In any jury trial, the judge gives a set of instructions to the jury members. Think of them as answers to the Frequently Asked Questions the jury may have. These instructions often provide specific definitions of some of the terms used by the lawyers and the judge. In this case, the parties tasseled over the judge’s definition of maliciously. On appeal, Bradbury argued that the definition was too broad and would’ve allowed the jury to convict him even if the jury thought he was joking. But whether Bradbury intended to cause physical harm begs the question: when is a threat that puts people in fear or apprehension itself a criminal “harm”? The Court approved the trial court judge’s definition of maliciously, upholding Bradbury’s conviction:

To make a threat . . . is both intentional and malicious—intentional because [it is] deliberate and malicious because [it is] calculated to inspire fear and provoke a possibly costly response—even if the threatener doesn’t intend to carry out the threat. . . . Most hoaxes are harmless, but a hoax based on a threat of harm is criminalized by 18 U.S.C. Sec. 844(e) . . . even if the harm that ensues is fright rather than physical injury.

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The Curious Case of Sherlock’s Copyright

It is an axiom of copyright law that no one may copyright an idea.

In a federal court ruling earlier this week, the Northern District of Illinois ruled that the bulk of Sir Arthur Canon Doyle’s Sherlock Holmes stories and character elements are not protected by copyright.

If you’re like me (and that’s often not a wise aspiration), you probably thought that these works became part of the public domain some time ago.  But it’s a bit more complicated than that.

sherlock holmes silhouette computingFirst, some background. Until relatively recently, American copyright works had expired 50 years after the death of their author.  This is one reason why Hollywood in general (and Disney in particular) finds old source material so attractive–no need to give royalties to the estate of Lewis Carroll for another Alice remake.

In 1998 the Copyright Term Extension Act (CTEA) changed, allowing up to 70 years after the death of an individual author.  For corporate authorship, it was extended to 120 years after creation or 95 years after publication, whichever came sooner.

As a recent L.A. Times article points out, these changes have caused many would-be public works to remain private works.  Among those books and songs that would have been public without CTEA: Atlas Shrugged and The Cat in the Hat, and the musical West Side Story.

But the 1998 CTEA law only applies to works created since 1923. Therein lies the rub.  The four novels and 56 short stories that comprise the Sherlock Holmes “canon” span this gap.  The majority of the stories were written prior to January 1, 1923–and are presumptively in the public domain–but the final 10 appeared in America after that year.  The copyright holder, which is a corporation set up by the family of the late Conan Doyle, argued that the development of the characters Holmes and Watson cannot be distinguished between the old and new stories; that if any part of the original character is protected, then the entire character ought to be considered protected.

The judge disagreed. He divided elements of the characters into “pre-1923 story elements” and “post-1923 story elements.”  It then examined whether the elements of the post-1923 stories were eligible for copyright.  It is an axiom of copyright law that no one may copyright an idea.  H.G. Wells’s The Time Machine has sentences, character names, and other unique qualities which may be copyrighted, but the mere idea of time travel cannot be copyrighted.  Ideas are simply too broad.

The court then examined the earlier and later story elements to distinguish them.  For example, if Holmes smoked a pipe and wore a deerstalker cap in the early stories, these traits (“increments of expression” in copyright lingo) are in the public domain and fair game for new works.  However, if Conan Doyle saved other key elements of the characters–such as Sherlock’s love of Angry Birds and stumbling into east London Karaoke bars to belt out the Black-Eyed Peas–for the later adventures, these would be protected.  The court determined that the later elements are not merely story or plot ideas, too broad to be copyrighted, but are valid increments of expression, protected under copyright.  Nevertheless, this decision does not remove the characters themselves from the public domain.

Illinois sits in the 7th Circuit with Indiana.  While not binding on Indiana now, the decision could become precedent if it is upheld by the 7th Circuit Court of Appeals in Chicago.