Friday, February 10, 2006

Why Generally is Generally Used

Before I went to work in the Copyright Office in 1987 or 1988 (I can't remember which), I was an avid reader of the Copyright Office's Compendia of Office Practices. There are two of them, one for the 1909 Act, which didn't have a chapter on examination apparently because Barbara Ringer couldn't let it go, and one for the 1976 Act, mostly completed in 1984 and which also didn't have a chapter on examination, but which later added one. The Compendia are internal manuals of sorts, but available to the public and highly informative. I highly recommend reading the 1909 Compendium for those who didn't practice under it and who want an idea of the gargantuan nature of formalities.

One word reappears in the Compendium, especially the II, and that is "generally." Once I was at the Office I asked Dick Glasgow, then the Associate GC, why "generally" so much? Dick said, the Office couldn't contemplate all situations, and besides liked to leave itself wiggle room. Courts do the same thing and generally for sound reasons, but in one instance, involving punitive damages, use of the word caused problems. Sometimes you have to set definitive rules. That's true in answering the question whether punitive damages are available under the Copyright Act. The answer is, no, never. The Act takes into account bad behavior in assessing damages only in awarding enhanced statutory damages under Section 504(c).

There was no doubt about this until On Davis v. Gap Inc., 246 F.3d 152, 172 (2d Cir. 2001) used the word generally in describing their unavailability; they were, the court said generally not available. The court said this not because it thought were available, but reflexively, out of a desire to preserve for itself the possibility of changing the law if it chose to at a future point. It didn't take long for an entreprising lawyer to argue generally meant sometimes now, no matter how rarely and that his case was one of those rare exceptions. The case was TVT Records v. Island Def Jam Music Group, 262 F. Supp.2d 185 (S.D.N.Y. 2003), and the district judge bought plaintiff's argument. Fortunately, his views were dictum because plaintiff opted for statutory damages. But another court also seemed unwilling to close the door, Blanch v. Koons, 329 F. Supp2d 568 (S.D.N.Y. 2004). The correct view is that of Judge Lynch in Leutwyler v. Royal Hashemite Court of Jordan, 184 F. Supp.2d 303, 308 (S.D.N.Y. 2001) and a more recent decision in Tampa, Calio v. Sofa Express, Inc., 368 F. Supp.2d 1290 (M.D. Fla. 2005).

Whether generally is generally a good idea, it was a bad one here.

1 comment:

William Patry said...

Bruce, not that I am aware of. You might be able to get one through the Copyright Office, but if not, email me and I will have a copy made for you