In the past few years, I’ve received numerous emails from the Institute for Cultural Diplomacy announcing upcoming conferences and educational programs. The messages say, “If you do not wish to receive emails from the ICD in the future, please send us an email to info@culturaldiplomacy.org indicating this.” I have, six times, spread out over half a year. It didn’t work. Twice, I cc:ed Mark Donfried, the ICD’s “Director and Founder,” over whose name the emails are written. I never received a response from him, just more spam. I called the ICD’s office, in Germany, and asked to be removed from their list. The woman who answered the phone promised I would be. She lied: the email continued.

This is unethical behavior, inconsistent with the values the ICD supposedly represents. It’s disrespectful, dishonest, and disreputable. I doubt that any of my readers run in ICD circles, but if you do, please think hard about what it says about the ICD as an organization.

On Friday, the long-awaited decision in the Georgia State e-reserves case (a.k.a. Cambridge University Press v. Becker) dropped. By way of context, the case is a challenge by three academic publishers (Oxford University Press, Cambridge University Press, and Sage Publications) against Georgia State University’s e-reserves policy. The publishers sued in April 2008, in a lawsuit funded by the Association of American Publishers and the Copyright Clearance Center, claiming that the e-reserves policy went far beyond the bounds of fair use. Georgia State, as a state university, invoked the doctrine of sovereign immunity, the practical implication of which is that the publishers can only obtain injunctions against future infringements, not damages for past infringements. Since it also tightened up its e-reserves policy in December 2008, it also successfully argued to the court that only the uses made under the new policy should be relevant to any potential injunction.

There was a trial a year ago, and then long silence from the court. Now we know why it was taking so long: the opinion is 350 pages. That number is a little misleading, in that over two thirds of the opinion are dedicated to a highly methodical copyright ownership, infringement, and fair use analysis of seventy-four separate claims of infringement, using standard templates and highly repetitive language. Having now dug through the details, I’d like to offer a few observations.

First, over a third of the claims didn’t even make it to the fair use stage at the heart of the case. In many cases, the publishers were unable to prove to the court’s satisfaction that they owned the copyright in the portions of the books that were copied and uploaded. Sometimes they couldn’t produce a timely registration certificate and there were proof problems with originality; sometimes they couldn’t find a work-made-for-hire agreement or copyright assignment from the authors of individual chapters in edited volumes. The court was unsympathetic: no documented chain of title, no lawsuit. There’s a looming e-rights mess, loosely akin to the robosigning mess around ownership of securitized mortgages: in both cases, the putative owners don’t have all their papers in order. This opinion either recognizes or contributes to the mess, depending on your point of view.

Other claims dropped out before the fair use stage because they were uploaded to the e-reserves system but never downloaded by students. The court dismisses these from the lawsuit as de minimis, explaining that these uses by the University, while technical implicating the copyright owners’ exclusive rights, don’t affect the incentives for authors to create. This puts more teeth in the de minimis doctrine in copyright: it goes beyond the view that de minimis means “not substantially similar.” It also strengthens the argument that “internal use” copies never used to reach an to an audience that reads them for their content don’t infringe. Think, for example, of the HathiTrust’s archive of scans from Google Books.

(As an aside, the e-reserve logfiles played a key evidentiary role in the case. Specific users were never identified, but if a file had a total hit count of two, it’s unlikely that students actually read it. This stands in contrast to other cases, like American Geophysical, which was tried by sampling: the parties selected a single scientist at random, examined his files looking for photocopies, and treated him as representative of a cohort of 500. Here, the logs permitted an analysis of the copying done for numerous faculty members—presumably all those who assigned any excerpts from any of the plaintiffs’ books.)

When the court did reach fair use, it held across the board that two of the four factors favored Georgia State. The purpose of the use, while not transformative, was nonetheless for highly favored educational purposes by a nonprofit institution. And the nature of the works was consistently informational.

On the third factor, the amount copied, the court repudiated the Classroom Guidelines, calling them “not compatible with the language and intent of § 107.” It noted that the numerical limits in the Guidelines are so stringent that not one of the excerpts at issue in the case would fit within them. It was particularly uninterested in the Guidelines’ position that copying not “be repeated with respect to the same item by the same teacher from term to term,” which the court described as “an impractical, unnecessary limitation.”

Instead, the court fashioned its own quantitative test. For books of nine or fewer chapters, the court set a threshold of 10% of the total page count; for books of ten chapters or more, the threshold was a single complete chapter. (The chapter-based rule creates an odd incentive for publishers to create books with a surfeit of tiny chapters.) Copying of any amount under this threshold, the court held, would be treated as “decidedly small.” In practical terms, this ended up being a one-sided bright-line rule: copying of less than 10% or one chapter always ended in a fair use win for Georgia State.

Finally, the fourth factor, the effect on the market, favored the publishers whenever CCC was offering a digital license for copying the book in question, and favored Georgia State whenever there was “no evidence in the record to show that digital excerpts from this book were available for licensing” as of the date of infringement.” In practice, this was another one-sided bright-line rule: no digital license meant an instant win for Georgia State. The court repeatedly emphasized that students would not have bought the assigned books as a substitute for the excerpts posted on the e-reserve system.

This treatment of licensing is likely to have significant implications. On the one hand, it suggests that libraries may have a freer hand to make expanded uses of orphan works, since by definition, no one will be licensing them. And on the other, the court didn’t consider photocopying licenses to be a suitable substitute for digital licenses. This will put significant pressure on publishers to turn on digital licensing.

Only in seven instances did Georgia State use more than 10% or one chapter of a book that was available for digital licensing. When this happened, the court took a more detailed look at the specifics of the book’s licensing market and the portion copied. Generally, this turned on whether the book made significant revenues via licensing: if so, the use was unfair. (In one instance, the court did a “heart of the work” analysis under factor three to find no fair use because the professor had assigned chapters that “essentially sum up the ideas in the book.”)

Thus, the operational bottom line for universities is that it’s likely to be fair use to assign less than 10% of a book, to assign larger portions of a book that is not available for digital licensing, or to assign larger portions of a book that is available for digital licensing but doesn’t make significant revenues through licensing. This third prong is almost never going to be something that professors or librarians can evaluate, so in practice, I expect to see fair-use e-reserves codes that treat under 10% as presumptively okay, and amounts over 10% but less than some ill-defined maximum as presumptively okay if it has been confirmed that a license to make digital copies of excerpts from the book is not available.

The most interesting issue open in the case is the scope of any possible injunction. Given that Georgia State won on sixty-nine out of seventy-four litigated claims, while the publishers won on only five, I expect that the any injunction will need to be rather narrow. But given how amenable the court’s proposed limits are to bright-line treatment, it is likely that the publishers will push to write them in to the injunction.

My bottom line on the case is that it’s mostly a win for Georgia State and mostly a loss for the publishers. The big winner is CCC. It gains leverage against universities for coursepack and e-reserve copying with a bright-line rule, and it gains leverage against publishers who will be under much more pressure to participate in its full panoply of licenses.

We now know much more about the Google Street View WiFi story, thanks to Google’s decision to release an unredacted version of the FCC report, to the New York Times’s identification of the Google employee involved as Marius Milner, and to further reporting from Ars Technica. The picture it paints is in some respects more flattering to Google, and in some respects worse.

Milner is the creator of NetStumbler, a tool for detecting and analyzing WiFi access points. It makes sense in hindsight that he ended up using his 20% time for the part of the Street View project that aimed to build a database of WiFi networks. And it turns out that he thought about the ethics and legality of recording payload data. He appears to have read some law-review scholarship on wardriving. He considered potential privacy issues, and concluded that the mobility of the Street View cars would minimize the risk of extensive data-gathering from any one user. Further, he emphasized that none of the data would be shared with Google users.

This is, I have to say, above the baseline of ethical cognition for programmers. Looking to legal scholarship at all is quite unusual. In fact, Milner’s thoughtfulness strikes me as roughly par for the course for front-line Google technologists. It’s a company that hires reasonably thoughtful people and encourages them to think about the implications of what they do for society, both good and bad.

But if Google is a company of smart, reflective, and well-intended individuals, collectively they make bad choices. Milner put his privacy concerns and the details of the WiFi payload recording in a design document. The document included a “to do”: “[D]iscuss privacy considerations with Product Counsel.” He talked to a member of the search quality team about the idea; he circulated the design document together with his code to Street View’s project leaders, who forwarded it to the entire Street View team. And he exchanged emails with other Street View programmers and managers that made clear Google was collecting payload data. But nothing happened. For fifteen months, Google Street View cars sucked up and recorded WiFi payload data.

As I said in an earlier post:

When it comes to privacy, this is a company out of control. Google’s management is literally not in control of the company.

Google’s Street View managers failed badly at their jobs. One of them “pre-approved” the design document before it was written, demonstrating complete failure to understand the purpose of managerial review. No one followed up to make sure the discussion with Product Counsel actually happened. Other engineers read the design document and Milner’s code, but either missed the fact that it was collecting payload data or didn’t realize that this could be a potential issue. Again, this is a failure of management: it’s an important part of their job to make programmers aware of the possible legal trouble zones in the areas they’re working on.

Milner has invoked the Fifth and isn’t talking to reporters. He made a mistake, but he’s not a legal expert and it’s a bit unfair to expect him to be. No, his managers let him—and the rest of us—down.

Today, Judge Chin heard oral argument in the Google Books case. I couldn’t attend, due to a prior commitment, but three of my students were there. David Berson NYLS ‘12, Kristoff Grospe NYLS ‘12, and Raphael Majma NYLS ‘11 took detailed notes, and this post is based on their careful reporting.

There were two issues at the hearing today:

1. Whether the Authors Guild and visual artists’ groups have “associational standing” to sue Google on their members’ behalf.
2. Whether to certify a class of authors so that the Authors Guild’s lawsuit can proceed as a class action.

(One of the things Judge Chin established at the hearing was that if he grants class certification, then the associational standing of the Authors Guild becomes unimportant to the litigation. The reverse isn’t true: if the 8000-member Authors Guild is a proper associational plaintiff, certification of a much larger class is still a live issue.)

Argument started with the associational standing motion. Google’s lawyer, Daralyn Durie, argued that each author will present sufficiently different issues that their individual participation will be required. Those individual issues come in two flavors: it might be hard to prove that particular authors are “legal or beneficial owners” who are entitled to bring suit in the first place, and Google’s fair use defense might apply differently to different authors. Judge Chin pressed Durie on both theories.

As to the ownership theory, Google claims that there’s enormous diversity in publishing contracts in terms of the language they use. Since many authors don’t receive royalties directly attributable to the display of short excerpts by publishers, they’re not “beneficial” owners of the short-excerpt-display-right. The Authors Guild’s lawyer, Joanne Zack, on the other hand, argued that royalties are a typical feature of publishing contracts making the authors beneficial owners entitled to sue. She had a good backup argument: the Copyright Act makes copyright registrations prima facie evidence of ownership, so that any burden of proof would be on Google to rebut the presumption that a particular author retains her standing to sue.

Judge Chin, in his questions to Durie, cut straight through to another possibility: that proof of ownership could be deferred to the remedy stage of the lawsuit. That is, the Authors Guild could litigate on behalf of whichever of its members are copyright owners with standing to sue, whoever they are. If it wins, at that point the individual contracts could come into evidence in deciding which of them are entitled to damages or an injunction. It was a pragmatic argument, and Durie’s reply was more formalist: the Copyright Act requires that the plaintiffs be copyright owners in order for the court to decide the issue of infringement at all.

Chin also asked Durie whether Google really wanted to be litigating millions of ownership questions individually. Durie offered a reply that lawyers are likely to find elegant and non-lawyers frustrating. Federal civil procedure already has a good device for handling multiple cases with similar legal issues: collateral estoppel. If Google loses against the three named plaintiffs on a genuinely shared issue, then other authors will be able to come into court and take advantage of the ruling. Google will be “estopped” from raising the issue again in those “collateral” lawsuits brought by other authors.

As for the diversity of possible fair use evaluations, the parties dueled over evidence. Google has a survey showing that some authors perceive a benefit from being included in Google Book Search (thereby showing divisions among authors). Durie needled the Authors Guild for not having its own survey, indeed for not even canvassing its own members. The Authors Guild, on the other hand, has a pair of expert reports that it claims help establish common economic harm to authors; Durie hinted at a few reasons that the reports should be excluded from consideration until later in the case, when Google will have had more of a chance to depose the experts and prepare a reply. (Personally, I think the reports are so tangential to the issues of common harm that it makes little difference; they’ll be relevant only if and when the case reaches the fair use merits.) Judge Chin, with what I can only imagine was a poker face, said he would look at both the survey and the expert reports and ask for additional submissions if he had doubts or questions.

Chin also pressed a theme that the Authors Guild has emphasized in its discussions of the case: Google scanned books en masse, so why should it suddenly insist that individualized treatment is necessary? Durie emphasized that Google doesn’t treat all books identically: dictionaries, for example, are excluded from snippet display. But, Judge Chin asked, surely there are only a finite number of different classes: poetry, cookbooks, fiction, how many could there be? And here Durie conceded that yes, Google makes its decisions on a “categorical” basis by type of work.

James McGuire, on behalf of the visual artists, added a few points specifically on their behalf. The cleverest was that it wasn’t just twenty million books that Google has scanned, but twenty million covers. There, since the fair use arguments don’t revolve around snippets, but rather entire covers, presumably there will be much less individual variation. On the whole, though, he was content to rest on the artists’ brief, which, let it be said, is both well-drafted and in Garamond.

Turning to class certification, the parties had relatively less to say, in substantial part because so many of their points had already been aired. Judge Chin rushed Zack through her argument: his only real question was to prompt her for a response to Google’s argument that fair use determinations for snippet display are inherently individualized. Her response was that Google, in its actual fair use defense on the merits, won’t actually be raising individualized issues.

Zack used some of Google’s answers to interrogatories (formal questions directed to the other side in a lawsuit that require it to state clearly the legal theories it will be using and the factual bases behind them) to claim that none of its actual fair use defense will be genuinely individualized. Unfortunately, since those documents aren’t yet part of the public court record, I can’t share them here or comment on what they say. Still, I previous called Google’s arguments here “small beer” and it seems like Google hasn’t really found a way to distinguish some authors from others in ways that really require individualized fair use assessments.

Durie dwelt less on the commonality of Google’s conduct than on the differences in authors’ circumstances. Some authors will benefit from being in Google Book Search; others won’t. Judge Chin again raised the subsets-of-authors argument: can’t we just divide authors up into, say, eight or nine groups (in-print fiction, out-of-print academic monographs, etc.) and deal with those groups separately? Durie, pointing to the survey, argued that analyzing the effect of Google Books on book sales really does require examining the effect on each author individually because their circumstances vary widely.

There was an argument notable by its absence. The academic authors sharply objected to the Authors Guild as a representative of their interests. But Durie didn’t pick up on their argument at all. She cited the academics for the benefits they receive from Google Book Search (viz. dissemination of their ideas and assistance in research), but not at all for their complaints about the non-academic bent of the Authors Guild and the named plaintiffs. Similarly, while Google could in theory have raised some of C.E. Petit’s points (esp. 3, 4, and 6) against certification, it didn’t.

A few further points got some airtime; it’s unclear how receptive Judge Chin was to either of them. Zack tried to argue that the objection to standing was untimely, coming as it does six years into the lawsuit. (Of course, the parties were rather busy being bestest friends for the majority of that time …) And Durie signaled that Google will be trying to object to the Authors Guild’s theory that it “distributed” the scans to libraries, because it hasn’t distributed any material objects to them. (Caselaw is generally against this argument, but not so squarely that it’s clearly foreclosed.)

At the end of the hearing, Judge Chin surprised no one by reserving decision. The parties will go ahead with their summary judgment motions, with oral argument coming in September. (Reminder: the Public Index now has a timeline of upcoming dates in the cases.)

A few general observations. First, Judge Chin’s questions were thoughtful. He wasn’t trying to press the parties on their weak spots; his questions were clearly directed to clarifying where the key areas of dispute were. Second, at least from the perspective of someone who wasn’t in the courtroom, the case was well-argued on both sides. Zack and McGuire seem to have a slightly easier case on these motions, and they extracted some concessions from Durie with Judge Chin’s help. But for her own part, she made some good points: the subtle but well-argued kind that one would expect from a real pro.

Third, the parties danced a bit around one of the key questions: what, precisely, is the allegedly infringing conduct for which the Authors Guild seeks to hold Google liable. Durie suggested at one point that the “right” at issue is the right to display a small excerpt of a book. Zack didn’t reply directly, but in other briefs and arguments, the Authors Guild has framed the case as being about the mass scanning, the distribution of copies to libraries, and the security risks of holding a complete corpus. This is presumably going to be sorted out sooner or later, quite possibly by Judge Chin himself.

It’s hard to predict what will happen next. My uninformed read is that today was a tactical victory for the plaintiffs: Google didn’t offer a compelling argument for why the case can’t proceed as a collective lawsuit. But that may not be strategically significant: the case is clearly heading towards the real battle over fair use, and I didn’t get the sense that the Authors Guild significantly improved its position in terms of selling Judge Chin on its claim that scanning and indexing is unfair. That may just indicate that Judge Chin, quite properly, is focused on the procedural motions currently in front of him. Or it could be a sign that the Authors Guild doesn’t have enough arrows in its quiver to hit the no-fair-use target.

Stay tuned …