We Interrupt Today's News With An Update From The Monkey Selfie Case

from the it-ain't-over-till-it's-over dept

In today’s fast-paced news cycle it’s easy to overlook the important things: the copyright status of the monkey selfie.

Today we have learned nothing new about it, except that the case is not over yet. Which is itself significant, because the parties in the case had jointly moved to dismiss the appeal, and today that motion was denied. In its order denying the motion [pdf, embedded below] the Ninth Circuit acknowledged that while it had the power to dismiss an appeal if the parties so requested it, it did not have the obligation to do so if there were countervailing interests. And in this case, the Ninth Circuit found, there were countervailing interests requiring it to fully adjudicate the matter.

It cited several other cases as analogs. As in Albers v. Eli Lily, “this case has been fully briefed and argued by both sides, and the court has expended considerable resources to come to a resolution. Denying the motion to dismiss ensures that ‘the investment of public resources already devoted to this litigation will have some return.'” Furthermore, as was the case in Ford v. Strickland, “a decision in this developing area of the law would help guide the lower courts.”

Also, referencing Albers and Khouzam v. Ashcroft, the court noted that denying the dismissal of appeals prevents the parties from “manipulating precedent in a way that suits their institutional preferences.”

As one of our colleagues once warned in a similar context, ?courts must be particularly wary of abetting ?strategic behavior? on the part of institutional litigants whose continuing interest in the development in the law may transcend their immediate interest in the outcome of a particular case.? Suntharalinkam v. Keisler, 506 F.3d 822, 828 (9th Cir. 2007) (en banc) (Kozinski, J., dissenting from the denial of rehearing).

In other words, enough of this procedural monkey business. The appeal remains a live matter, and at some point the court will presumably substantively rule on it.

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Comments on “We Interrupt Today's News With An Update From The Monkey Selfie Case”

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33 Comments
Anonymous Anonymous Coward (profile) says:

The monkey wrench in the thought pattern.

The problem with continuing this case in order to be emphatic about the fact that monkeys cannot own property (patents, copyright, trademarks, land, houses, cars, etc.),(and assuming that that is what they want to nail down) is that any result will only be viable in one circuit. It might be quoted in other circuits, but it won’t be a precedent.

Anonymous Coward says:

Re: The monkey wrench in the thought pattern.

  1. The only way to set precedent across all circuits at once is through a Supreme Court ruling. And with some rare exceptions, that requires getting a circuit ruling first. Outside of the Supreme Court, precedent is set one circuit at a time, in hopefully a mostly uniform manner.

    2. Most federal cases die at the district court level (even before a trial), and, for non-9th circuit district courts, although not binding, this is still going to be enormously influential. Note that the 9th circuit’s order cited cases from other circuits.

David says:

Re: Re:

Then they would be the result of a patented process, not copyrighted. Anyone getting a monkey to take a photograph would still not be entitled to copyright but rather would have to pay licensing fees to the patent holder, until the patent runs out (which would be after a limited time after the patent got granted, the way it once was for copyright and should still be if things were sane).

See how much confusion is caused by throwing all “intellectual property” in one pile under the premise “anybody who got his brain to work at any level should be entitled to have the government secure profits from any positive consequences of engaging his brain”. Monkeys are smart enough to profit from the activities of their brains on their own.

That One Guy (profile) says:

Now apply that elsewhere

As one of our colleagues once warned in a similar context, “courts must be particularly wary of abetting ‘strategic behavior’ on the part of institutional litigants whose continuing interest in the development in the law may transcend their immediate interest in the outcome of a particular case.”

Great point, now if the various courts would take that argument and apply it to the truly malicious and/or willing to abuse the legal system for their own end, that’d be great. Seeing copyright/patent trolls stomped flat for example would do the non-sleazebags a world of good, and it would restore at least some respect people might have towards the legal system if those that blatantly abuse it for personal gain were treated similarly.

Anonymous Coward says:

The court likely feels like it lost in a dick measuring competition due to its extended participation in this silliness. It certainly didn’t have the balls to dismiss the case from get-go.

I can only assume the eventual ruling will be something along the lines of “You’re all stupid and should never do stupid things like this ever gain.”

Anonymous Coward says:

Re: Re:

You can’t really blame the appeals court for this silliness. That would be district court; they’re the ones who should have laughed it out of the courtroom. The appeals court, after that, really had no choice but to pay attention and try to find a resolution within the law, since the case had already consumed quite a few public resources.

That said, if both parties really want to dismiss, maybe the court should make them both pay fees equal to the amount of money the government has spent dealing with this petty bullshit.

That One Guy (profile) says:

Re: Ahhh. If only

He did, but only after he realized that ‘the monkey took the photo’ meant he had no copyright, and therefore no ownership of the picture.

The kicker of course is that if he had started out with ‘I took the photo’, it would have been utterly unremarkable as far as pictures go. Sure it would have been well taken, but a photo of a monkey? Not like there’s any shortage of those. The very thing that made it impressive(a photo taken by a monkey) also left him with no ownership rights once the photo was public(though he could have still used it for attention and money, had he not been a short-sighted fool about it.)

Wendy Cockcroft (user link) says:

Re: Re: Ahhh. If only

It’s his inability to get the £ signs out of his eyes that’s the problem. He sees copyright as a fountain of money flowing deep and wide and fought a bloody-minded battle over his right to his share of it on principle. I know many people like this here in Britain: “It’s the principle of the thing!” they shout from foam-flecked mouths — usually about Brexit.

A smarter person would have rode on a wave of “The monkey took a picture with my camera” and lived off the notoriety. As it is, Slater got bogged down in self-pity and misplaced rage and paid heavily for his hubris.

I feel sorry for him since he honestly believed that copyright was a ticket to automatic financial gain. Unfortunately it is not.

That One Guy (profile) says:

Re: Re: Re: Ahhh. If only

I feel sorry for him since he honestly believed that copyright was a ticket to automatic financial gain. Unfortunately it is not.

I would have felt sorry for him if he hadn’t gone legal and been dishonest. As soon as be brought the lawyers into it and tried to force reality to conform to what he thought should happen, I lost all sympathy.

When he changed his story to something that was more beneficial to himself, such that he was either lying the first go around or lying the second, I lost all sympathy.

btr1701 (profile) says:

Moot

> The Ninth Circuit acknowledged that while it had the
> power to dismiss an appeal if the parties so requested
> it, it did not have the obligation to do so if there were
> countervailing interests.

I’m trying to figure out how this works if both parties want to just walk away. If no one submits briefs and no one shows up to oral arguments, what does the court have to rule on?

The Wanderer (profile) says:

Re: Moot

If I understand matters correctly, all such have already been submitted and argued, and no further input from the parties is needed; the only thing left is for the court to rule.

Trying to withdraw at that point, even if both parties agree, seems a bit… questionable; at best, it would seem to represent a waste of the court system’s resources.

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