The Laboratorium
May 2010

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GBS: Gervais on TRIPS

Law professor Daniel Gervais has added his distinguished voice to the debate over the settlement’s compliance with international copyright law. His short paper, The Google Book Settlement and the TRIPS Agreement, forthcoming in the online Stanford Technology Law Review, is measured but skeptical:

Our tour d’horizon has perhaps raised more questions than it has provided answers. For example, while an opt-out does not amount to a per se violation of the Berne Convention, the conformity of the specific form of the opt-out clause in the Amended Settlement and its time-limited nature remain dubious. For any book that might be included in the Settlement without the right holder’s consent and not subject to an effective opt-out, a different set of rules likely applies, namely the compatibility of new forms of compulsory licensing with the three-step test.

While there are few if any convincing arguments to support a claim based on a violation of national treatment in the Settlement and its class action structure, credible doubts emerge when the spotlight is turned towards the TRIPS most-favored nation clause. While I do not purport to offer a definitive analysis, it would seem that a disadvantage is imposed on one group of foreign right holders based on their nationality when compared to nationals of other WTO members. Such disadvantage is imposed by a branch of the US government and does not appear to be covered by any of the applicable MFN exemptions.

Martin Gardner, Was 95

I think of him as the ideal of the scientific American: curious, friendly, wide-ranging, well-read, skeptical, smart, and profoundly decent—or, if you prefer, just a midwesterner who liked math. His puzzles were one of my formative influences growing up; the same is true for many of my friends. Even just offhand, I can think of dozens of ideas that I first met in his books. Thank you.

Away Message

Tomorrow is Commencement. There is no prouder moment in this job than to see one’s students walk across that stage. Congratulations to the New York Law School class of 2010.

Following Commencement, I will be out of the office and unreachable until Wednesday, May 26. If anything exciting happens in the Google Books case before then, I’m sure you’ll all catch me up on it when I return.

Credulous Skeptics

Mark Lilla, The Tea Party Jacobins, New York Review of Books, May 27, 2010:

Americans are and have always been credulous skeptics. They question the authority of priests, then talk to the dead; they second-guess their cardiologists, then seek out quacks in the jungle. Like people in every society, they do this in moments of crisis when things seem hopeless. They also, unlike people in other societies, do it on the general principle that expertise and authority are inherently suspect.

The entire essay is worth reading. Some of what Lilla says strikes me as right, and some as wrong, but I hadn’t previously realized just how well he can write.

GBS: The Berne Ultimatum

At the request of the Open Book Alliance, lawyer Cynthia S. Arato has written an 18-page memorandum on the international copyright issues raised by the settlement. Arato represented groups of foreign publishers in filing objections to the settlement, so her bottom line is unsurprising:

If approved, the settlement would (1) grant Google automatic rights to exploit digitally millions of books without requiring Google to obtain any authorization from any foreign copyright owner or author; and (2) require these foreign rights holders to jump through burdensome hoops simply to exercise a watered-down contractual right – that the settlement creates – to halt such use. As we explain below, that unprecedented usurpation of copyright owners’ rights would violate two fundamental provisions of the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention” or “Berne”) – the protection of copyright owners’ exclusive rights and the prohibition against imposing formalities that would impair the exercise of those rights. In addition, the settlement would violate the principle of non- discrimination enshrined in the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPs”). It would do so by imposing many of its most burdensome provisions on foreign rights holders who are not nationals of the United Kingdom, Canada or Australia – three countries whose nationals are unfairly given special treatment under the settlement.

These general arguments are not new. But the memorandum format lets Arato write for a slightly broader audience than in her legal briefs. She has also filled in more details of these particular objections and added citations to additional authorities. It’s an immediate must-read for those following the international-law issues in the settlement.

One Lucky Voter

What if everyone who voted were automatically entered in a lottery? “This Election Day, one candidate will win a trip to the White House … and one lucky voter will win a cool ten million dollars.”

I can see two beneficial effects. First, it would increase turnout. And second, it would cause officials to actually do something about electronic voting machine security. It’s sad but true that our society takes things more seriously when there’s money at stake. A voting lottery would use that fact for good.

GBS: Objections and Responses, Version 2.0

My students and I are proud to announce the release of version 2.0 of our report summarizing the objections to the proposed settlement. This version adds the additional objections made to the amended settlement, and also the plaintiffs’ and Google’s responses to many of the objections.

The Public-Interest Book Search Initiative at New York Law School, Objections and Responses to the Google Books Settlement: A Report, Version 2.0, May 2010:

This update adds information about the arguments for and against the proposed amended settlement based on the filings made with the court in January and February 2010. We have also taken advantage of the editing process to improve the oganization and to fix a number of omissions and mistakes from version 1.0. We thank everyone who wrote us with suggestions for improvements, and hope that you will continue to help us improve this document for future versions. Please write to us at with any corrections or suggestions

The biggest change in this version is the inclusion of the plaintiffs’ and Google’s responses to many of the objections. The relationship between objections and responses is not one- to-one, and we have tried to give a representative cross-section of responses, rather than repeating each response in connection with each objection. The interested reader is, as always, invited to consult the objections and responses directly; we have continued our practice of providing hyperlinks and page references.

GBS: Institutional Subscription Worth $260 Million per Year?

Michael Cairns likes books, and spreadsheets. At D is for Digitize, he gave a great presentation on his numerical analysis of how many orphan books there are. Now his consultancy, Information Media Partners, is back with another very clever settlement-themed analysis, this time of the settlement’s revenue model. A Database of Riches works through the numbers on the Institutional Subscription. By drawing on ALA numbers of various classes of libraries, by making some assumptions about how library systems will be licensed and how many will subscribe, and by making some guesses at possible prices, it produces an estimate that the Institutional Subscription could be a $260 million per year business.

GBS: Google Editions to Launch This Summer

Jessica A. Vascellaro and Jeffrey A. Trachtenberg, Google to Launch Digital Books by Early Summer, Wall Street Journal:

Google Inc. will begin selling digital books as early as late June or July, a company representative said Tuesday, jumping into a battle that already involves Inc., Apple Inc. and Barnes & Noble Inc.

Chris Palma, Google’s manager for strategic-partner development, announced the timetable at a panel on Google’s plans sponsored by the Book Industry Study Group in New York. The event, held at Random House’s Manhattan offices, was entitled: “The Book on Google: Is the Future of Publishing in the Cloud?” …

Google says users will be able to buy digital copies of books they discover through its book-search service. It will also allow book retailers—even independent shops—to sell Google Editions on their own sites, taking the bulk of the revenue. Google is still deciding whether it will follow the model where publishers set the retail price or where Google sets retail prices.

These aren’t books under the settlement; these will be e-books that publishers have explicitly authorized Google to sell. But it is clear that Google is ramping up its books infrastructure, and is working to establish that the company is very serious about the book business.

No Longer Afraid

Fraser Speirs, Back In:

iPhone OS is the first mass-market operating system where consumers are no longer afraid to install software on their computers (I’m not counting read-only media software platforms like games consoles here). In a conversation recently, a friend recounted a scene that he passed by in an airport. Four fifty-something women were sitting at a cafe table discussing the latest apps they had downloaded on their iPod touches. New software can’t break your iPhone OS device and, if you don’t like it, total removal is only a couple of taps away.

This is one of the central points Paul Ohm and I make in a forthcoming review of Jonathan Zittrain’s The Future of the Internet. Zittrain is right to worry about how customizable the computing devices that ordinary consumers use are. But it does not automatically follow that the iPhone and the iPad are bad news just because they are more locked-down than a standard PC. As Zittrain himself recognizes, sometimes a teaspoon of improved stability can give users more practical flexibility than a gallon of undiluted technological openness would. There’s a good case to be made that iPhone OS gets the balance right.

How Tracked the iPhone Finder

Brian X. Chen blogs about how he and his Wired colleagues identifed the finder of the iPhone 4G. Alternate titles for the post included “Stalking as Journalism” and “The Internet Laughs at Your Puny Earthling Privacy.” Here are the Internet-based components of the investigation:

The day Gizmodo published its 4G iPhone bombshell, our former intern Rose Roark saw a suspicious-looking note posted by Hogan on someone’s Facebook wall. … We created a screenshot of the Facebook wall in case we needed it for future reference. …

By then, Hogan had deleted his Facebook profile, and presumably every other social networking profile he owned, in an effort to hide. That made the search difficult, but his attempt to disappear was already a major clue that he was in trouble.

Reviewing the screengrab of the Facebook wall, we saw a few other people — possibly Hogan’s friends — had posted comments in reaction to the Gizmodo story as well. From checking their Facebook profiles, it appeared several of them went to school at Santa Barbara City College. So I had a hunch that Hogan, too, attended the school at some point. …’s Kevin Poulsen searched Hogan’s name using a people-tracking website ( and found one Brian J. Hogan with addresses listed in Redwood City and Santa Barbara. …

I continued to obsess over finding more about Hogan, and late at night on Tuesday I got very lucky with one Google search: “Brian Hogan SBCC.” The first search result revealed a Facebook page for a 2008 China/Vietnam study abroad program with Santa Barbara City College students. Google’s cached result showed a part of a comment posted by Hogan. When I visited the study abroad group’s Facebook page, Hogan’s comment was no longer present, as he had purged his account. But that single Google search result was proof that Hogan attended SBCC. Even more importantly, we now had access to a group of 25 people who studied abroad with Hogan and were likely his friends.

Poulsen proceeded to send Facebook friend requests to everyone in the study abroad group. …

… I found a website hosted by a friend of Hogan, where he linked to a personal travel blog documenting the 2008 China/Vietnam study abroad experience. In that blog, I found one photo where the first name Brian was mentioned in a caption. I was certain that was Hogan.

In other words, you can’t undo your privacy-violating mistakes no matter how hard you try, your friends can inadvertently reveal a lot abut you, phriending is a very real threat, and scattered fragments of information can add up to enough to give you away.

GBS: ASMP Case Is Related

Sorry I missed this one a few weeks ago, but Judge Chin officially accepted the ASMP image lawsuit against Google as being related to the Authors Guild suit. As the docket report humorously notes, “Judge Unassigned is no longer assigned to the case.” Whether Judge Chin keeps Authors Guild or not—and the mere fact that he hasn’t said anything yet may make it more likely that he will—I now expect the ASMP case to tag along with it.

UPDATE: A correspondent writes:

Actually, there’s a fairly simple reason that Judge Chin hasn’t said anything about either the AG or the ASMP iteration:

He can’t. He lost the authority to do so when he accepted his commission to the Second Circuit. As of that moment, he was no longer a judge on the United States District Court for the Southern District of New York. He would need a designation to do/say anything about the matter(s).

Instead, any reassignment order (or, for that matter, designation order allowing him to retain the case) will come from the Chief Judge for the Southern District of New York — presently Judge Preska. (Although the NYSD website hasn’t yet been updated…) At least when I’ve personally observed this in the past, the reassignment order (if any) issues about three weeks after the first hearing on the new court — that is, in this instance, about three weeks after 29 April (Judge Chin’s first panel on the Second Circuit).

Of course, as a sneaky bit, the Chief Judge could ask for a magistrate judge’s recommendation in the meantime…