The Laboratorium
April 2009


When First Amendment scholars are making plans to get together for lunch, how do they decide on a time, place, and manner?

Deep Thought


I hear that Treasury is going to recommend meditation for the banks that fail the stress test.

GBS Blogging: Big News Day


The headlines say it all:

  • Publishers Weekly: “Google Deadline Delayed Four Months as Steinbeck Motion Granted”
  • New York Times: “Justice Dept. Opens Antitrust Inquiry Into Google Books Deal”
  • Reuters: “U.S. Justice Department looks into Google books deal”

Also, Pam Samuelson and an all-star cast of academics filed a letter with the court discussing the distinctive interests of scholarly authors. In addition to requesting delay (and proposing to make good use of the time), the letter raises some of the essential open-access and digital freedom issues that Samuelson has long been a leading voice on.

Also also, Public Knowledge filed a letter with the court requesting leave to file an amicus brief. Like our own amicus brief, PK’s will focus on the orphan works issue, flagging both competition and class-action concerns.

I hope to be able to report some news of our own soon.

AllFacebook: “Facebook’s Privacy Settings Present Intrinsic Limitations To The Platform”


Nick O’Neill:

I’ve written countless times about Facebook’s “privacy facade” and how it could develop potential problems in their global expansion. Today, some developers and bloggers were disappointed that Facebook did not open up unrestricted global access to users’ streams. This means that developers cannot develop tools to analyze the information being shared on Facebook in aggregate unless every Facebook user installs their application.

Facebook’s privacy settings inherently limit the company’s ability to take on a product like Twitter Search which gives you access to 99 percent of the status updates taking place within the global Facebook network. This inability was the foundation of Marshall Kirkpatrick’s argument this afternoon that “the conversation on Facebook remains fundamentally closed due to extensive privacy limitations and the company’s disinterest in overcoming those limitations in an appropriate way.”

Sigh. A good (or terrifying, depending on your spin) reminder that lots of developers in the “social” space have zero understanding of the social aspects of privacy.

GBS Blogging: Two Procedural Updates


Two interesting pieces of news today.

First, the District Court denied two requests to intervene in the case. The Internet Archive had asked to intervene as a defendant, so that it could get the same settlement deal that Google sought. Harry Lewis and Lewis Hyde (both affiliated with Harvard’s Berkman Center) had sought to intervene on behalf of the public at large. Both had sent letters to the Court asking for scheduling conferences so they could make full-scale motions to intervene. No need for scheduling conferences, apparently:

I have construed their letters as motions to intervene, and the motions are denied. The proposed intervenors are, however, free to file objections to the proposed settlement or amicus briefs, either of which must be filed by the May 5, 2009 objection deadline.

This move on the Court’s part is fascinating. One might think that rejecting the motions to intervene at this stage is premature, since neither the Internet Archive nor Lewis and Hyde had actually filed a fully-briefed motion, and now neither will actually be free to make its full case for its right to intervene. On the other hand, the Court has seemingly opened up a door for them by letting them file objections, even though neither proposed to object to the settlement as a member of the plaintiff class. That’s technically what the May 5 deadline was for; it was a deadline for class members to speak up with objections, and now it’s a deadline the would-have-been intervenors will now have to live with. It appears that the Court is trying to channel all comments and objections through a standardized process and a standardized timeline. It wants a stack of papers on May 5, all of which either support the settlement (that motion has already been filed, by Google and the authors and publishers), oppose it (objections), or simply advise the court (amicus briefs).

In other news, a group of authors filed a motion requesting a four-month extension of that self-same May 5 deadline. (It’s an interesting group, including the Steinbeck and Philip K. Dick estates.) The plaintiffs and Google, unsurprisingly, opposed the four-month extension, but said they would be amenable to a 60-day extension. The authors’ request marks the emergence onto the scene of the first significant potential litigator from outside the public-interest community. Perhaps after the extension, of whatever length, the authors will decide they can live with the settlement, or just simply opt out, but perhaps we’re seeing the beginning of direct, adversarial litigation of the settlement. The delay will also be interesting in its own right; since it now appears that everyone involved is willing to wait at least two months, it seems likely to change the timetable on which a lot of things will happen.

This Post Is Underinclusive


I am really, really, really tired of law professors complaining about rule X on the grounds that it’s “underinclusive” or “overinclusive” or both. These arguments are typically followed by whatever is the printed-page equivalent of sitting back in one’s chair with a self-satisfied smirk.

So the rule you hate is underinclusive? So what? Most rules are. Your proposed alternative probably has exactly the same problems. All of life is underinclusive, and overinclusive, too.

Actual Email, Details Redacted


Subject: Your Paper Makes SSRN Top Ten List

Dear James Taylor Lewis Grimmelmann:

Your paper entitled —— was recently listed on SSRN’s Top Ten download list for ——. …

As of 04/22/2009 your paper has been downloaded 11 times.

The Fiction Circus on the Internet Archive on the Google Book Search Settlement


Miracle Jones:

I want to know what deal the Internet Archive will offer to rightsholders in order to compete with Google. Kahle wants everything to be free, does this mean that he will strip away even Google’s meager profit-sharing deal to authors if he can?

Why can’t we turn this into a two-year-long U.S. rights auction where anybody can try to outbid Google for these copyrighted works?

I think Kahle is “a good man,” but his plan is essentially the same thing as solving the world’s poverty problem by printing more money and then giving it away. For a few hours, everybody will be able to run out and buy food. Everything will be free!

But then the world’s economy will collapse completely.

The auction idea is interesting. To the extent that the problem is a lack of competition in this market, though, a single-winner auction is no solution. Whoever wins replaces Google as the entity to worry about. Perhaps a generalized second-price auction? (I’m about 90% joking.)

We Didn’t Start the Flame War


Like Waxy says, it’s total DiggBait, but it’s so spot-on and well-done I keep going back to it. (Warning: serious language NSFW.)

Pam Samuelson on the Dead Souls of Google Book Search


Pam Samuelson has posted a short essay about the “Dead Souls of the Google Booksearch Settlement.” The essay appears in Communications of the ACM, the flagship magazine for the professional society of computer scientists, where Samuelson writes a regular column. She takes her metaphor from Gogol:

Chichikov, its main character, travels around the Russian countryside to buy “dead souls” so that he can become a wealthy and influential man. In the early 19th century, you see, Russian landowners had to pay annual taxes on the number of serfs (counted as “souls”) they owned as of the last census.

Chichikov offered to buy “dead souls” (i.e., serfs who had died since the last census) from the landowners. His plan was to acquire enough of these souls so that he could take out a large loan secured by his portfolio, and thereby to become a wealthy man.

In Gogol’s story, Chichikov’s scheme falls apart. Rumors fly that the souls he owns are all dead and he flees the town in disgrace.

However, Google’s “dead souls” scheme may pay off handsomely, as the settlement would, in effect, give Google the exclusive right to commercially exploit millions of orphan books.

Randy Picker on the Antitrust Aspects of the Google Book Search Settlement


Randy Picker’s paper based on his talk at the Columbia conference on the Google Book Search settlement is now online. There’s a lot of good analysis in it, and even though it’s a necessarily dense paper about a remarkably dense settlement, Picker’s writing is clear, elegant, and forceful. It’s required reading for anyone seriously interested in the settlement.

Internet Archive Seeks to Intervene in Google Book Search Case


Among the many interesting things in the Archive’s letter to the court:

  • The Archive is seeking to intervene as a defendant. That makes a certain kind of logical sense, since the Archive is scanning books, too. Some of those books might turn out to be in-copyright rather than public-domain, and thus the Archive is similarly situated to Google. Still, intervening as a defendant is a tricky matter, since ordinarily plaintiffs are masters of their complaint. Indeed, the letter points out that the “existing parties … advise that they will oppose the Archive’s proposed intervention.”
  • The Archive is represented by Arnold and Porter. Lawyers’ shoes don’t get much whiter than that. It’s a little striking that such an established law firm is willing to take on both Google and much of the publishing industry on behalf of what I assume is a pro bono client.
  • The Archive proposes to intervene without affecting the existing case schedule. That’s a tactical choice that seems designed to improve the chances that the court will grant the request to intervene. It must also mean they’re prepared to turn around their briefing quite quickly.
  • The Archive appears to be requesting “the same limitation of potential copyright liability that the proposed Settlement provides Google.” But they don’t appear to be requesting it on a for-everyone basis, which is my preferred solution.

It will be even more interesting to read the Archive’s full argument if the court grants their motion to intervene (or if the court decides to order briefing on the question of whether they should be allowed to).

The Onion: Mr. Met Having Trouble Sleeping in New Home


Is it just me, or is there some kind of Onion Renaissance taking place? “If Itzhak Perlman Is Performing On TV Right Now, Who Is Feeding My Cat” has been a running joke in our household for the last two months, and “Man Who Likes To Move It, Move It Still Searching For Perfect Song” managed to delay the punch line until the very last word. I feel like there’s at least one piece of pure comedy gold in every issue now.

Ends, Means, and the Future of Books


The two previous papers have been queued up until I could catch a few minutes to take care of posting them. But this one really is of the minute. Today, the American Constitution Society released an Issue Brief I wrote for them on, what else, the Google Book Search settlement. (Yes, it’s dated the 15th, but it was actually mailed out today.) ACS Issue Briefs are 10-20 page summaries of the legal and policy issues raised by topics in the news; they’re written for lawyers, policy-makers, and the public at large, (rather than for academics). Mine is called “The Google Book Search Settlement: Ends, Means, and the Future of Books,” and in it, I explain the centrality of orphan works to the settlement. It’s good to the extent it makes the orphans available again, and worrisome to the extent it locks up control of them with a single company. Here’s an abstract (a couple of excerpts, really):

For the past four years, Google has been systematically making digital copies of books in the collections of many major university libraries. It made the digital copies searchable through its web site—you couldn’t read the books, but you could at least find out where the phrase you’re looking for appears within them. This outraged copyright owners, who filed a class action lawsuit to make Google stop. Then, last fall, the parties to this large class action announced an even larger settlement: one that would give Google a license not only to scan books, but also to sell them.

The settlement tackles the orphan works problem, but through the judicial process. Laundering orphan works legislation through a class action lawsuit is both a brilliant response to legislative inaction and a dangerous use of the judicial power. Many of the public interest safeguards that would have been present in the political arena are attenuated in a seemingly private lawsuit; the lack of such safeguards is evident in the terms of the resulting settlement. The solution is to reinsert these missing public interest protections into the settlement.

The Ethical Visions of Copyright Law


While I’m uploading recent papers, here’s another. Last fall, I participated in an enormously fun symposium at Fordham Law School (organized by Kathy Strandburg, Brett Frischmann, and Jay Kesan) called “When Worlds Collide: Intellectual Property at the Interface Between Systems of Knowledge Creation.” The idea was to juxtapose the commercial system of knowledge production with other such systems—open-source software, university research, and developing-world traditional knowledge—and ask what work IP does at these borders. I knew for months that I was going to be on the open-source panel, but I had the hardest time coming up with a topic I felt comfortable with. Visitors to my office in early fall may remember a whiteboard covered in equations, the detritus from a failed attempt to produce a simple but informative economic model of how centralized and distributed software projects plan for the future.

Almost as an afterthought, and with more than a little desperation, I started thinking about rhetoric rather than about resource constraints. But something about the language of the copyfights stuck in my head in just the right way, and I started trying to articulate, as I put it to people, “what copyright law thinks of when it thinks of us.” The answer, I decided, was more than a little ethical; copyright law wants authors and audiences to be good people who treat each other well. (If you’re familiar with standard legal academic arguments in intellectual property, you may have a sense for why this way of putting things struck me as pleasantly perverse.)

The resulting essays have now been published in a symposium issue of the Fordham Law Review. There are plenty of nice contributions in the volume, but I especially recommend Wendy Gordon’s keynote address which combines a generous and cultured musing on the purpose of copyright with a beautiful introduction by Sonia Katyal that tells you exactly why only Wendy Gordon could have written such a generous and cultured musing. My own essay is entitled “The Ethical Visions of Copyright Law, and here’s the abstract:

This symposium essay explores the imagined ethics of copyright: the ethical stories that people tell to justify, make sense of, and challenge copyright law. Such ethical visions are everywhere in intellectual property discourse, and legal scholarship ought to pay more attention to them. The essay focuses on a deontic vision of reciprocity in the author-audience relationship, a set of linked claims that authors and audiences ought to respect each other and express this respect through voluntary transactions.

Versions of this default ethical vision animate groups as seemingly antagonistic as the music industry, file sharers, free software advocates, and Creative Commons. “Respect copyrights,” “Don’t sue your customers,” “Software should be free,” and “I love to share” are all ethical claims about copyright that share some common intuitions, even as they draw very different conclusions. The essay provides a framework for thinking about these ethical visions of intellectual property and then puts these various visions into conversation with each other.

How to Fix the Google Book Search Settlement


My crazy-long blog post about the Google Book Search settlement has now completed its transformation into “real” article. The result is “How to Fix the Google Book Search Settlement,” which you can read either in the April issue of the Journal of Internet Law (subscriptions just $488 a year!) or here in PDF. It’s a little less playful and a little more polished than the original blog post, but it’s substantively mostly the same ideas. Here’s the abstract:

The proposed settlement in the Google Book Search case should be approved with strings attached. The project will be immensely good for society, and the proposed deal is a fair one for Google, for authors, and for publishers. The public interest demands, however, that the settlement be modified first. It creates two new entities—the Books Rights Registry Leviathan and the Google Book Search Behemoth—with dangerously concentrated power over the publishing industry. Left unchecked, they could trample on consumers in any number of ways. We the public have a right to demand that those entities be subject to healthy, pro-competitive oversight, and so we should.

In a Little While, I’ll Be Gone


I’ll be out of the country from the 3rd to the 12th of April. I won’t be checking voice mail. You can try email, but I make no promises. Whatever it is, it can wait, right?

GBS Update: Friend Request Accepted


The court approved our request to file an amicus brief. I know it’s only permission to make our arguments at greater length, but it’s still quite a thrill to see a federal judge write “SO ORDERED” on something we asked for. We’re looking forward to explaining what’s right and wrong with the way the settlement treats orphan works.