The Laboratorium
August 2011

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Any Resemblance to the Truth Is Purely Coincidental

From the copyright page of Tim Powers, The Bible Repairman and Other Stories (Tachyon Publications 2011):

This is a collected work of fiction. All events portrayed in this book are fictitious and any resemblance to real people or events is purely coincidental.

From the introduction:

Edward John Trelawny, whom I used as a character in my story “A Time to Cast Away Stones,” was a real historical person …

From the author’s note to “A Time to Cast Away Stones” (edited to minimize spoilers):

Trelawny was certainly a liar who eventually came to believe his own melodramatic fabulations … but his adventures on Mount Parnassus did happen. He really was the barbaric right-hand man of the mountain warlord Odysseus Androutses, really did marry the thirteen-year-old Tersitza, [etc]. His injuries were exactly as I describe them … .

I understand that these disclaimers are boilerplate, but it bothers me when they are such transparent lies. Lawyers and publishers are supposed to have more regard for the truth than this. If I had my way, a publisher that regularly inserted such disclaimers where they were so clearly false would be barred from relying on them in closer cases. Those who are careless with words are careless with their credibility.

A Brief Note on Future Infringement

Followers of the Google Books settlement will recall that one of the reasons Judge Chin gave in the Authors Guild opinion for rejecting the settlement was that it would “release Google (and others) from liability for certain future acts.” In yesterday’s Literary Works decision, the Second Circuit also considered what it called “future infringements.” Both settlements would have let the defendants sell access to complete copies of plaintiffs’ works. But while Judge Chin rejected the Google Books settlement on this basis, the Second Circuit would have allowed the Literary Works settlement (if not for the representation issues).

So what gives? How did these cases come to seemingly opposite results? It just so happens that I have been researching this precise issue — class-action settlements that include releases for the defendant’s future conduct — for over a year. Indeed, this past Thursday, I gave a presentation on the topic to the annual Intellectual Property Scholars Conference, a kind of works-in-progress speed-dating session for law professors. So, having thought about the matter for a good long while, I believe that the opinions are correct and consistent with each other.

Here is what Judge Chin said in Authors Guild:

This case was brought to challenge Google’s use of “snippets,” as plaintiffs alleged that Google’s scanning of books and display of snippets for online searching constituted copyright infringement. Google defended by arguing that it was permitted by the fair use doctrine to make available small portions of such works in response to search requests. There was no allegation that Google was making full books available online, and the case was not about full access to copyrighted works. The case was about the use of an indexing and searching tool, not the sale of complete copyrighted works. (emphasis added)

By contrast, the Literary Works court said:

Objectors’ first argument fails to recognize that the consolidated complaint seeks injunctive relief for future uses, and therefore contemplates these alleged future injuries. Put another way, a trial of this case would determine whether it is permissible for publishers to continue to sell and license the works. Accordingly, regardless of whether future infringements would be considered independent injuries, the Settlement’s release of claims regarding future infringements is not improper.

There is a common move here: compare the proposed settlement to what the underlying lawsuit was about. In the Google Books case, the underlying lawsuit was about scanning and searching, but the settlement went on to authorize the sale of complete books. In the Literary Works case, the underlying lawsuit was about exactly the same thing that the settlement authorized: including freelancers’ articles in commercial databases. There was a gap between lawsuit and settlement in the Google Books case, but not in the Literary Works case. That’s how similar settlement terms could be “a bridge too far” for books but permissible for articles.

There will be more — much more — to say about all of this in due course.

Google Books Settlement, 2008-2011

The Google Books settlement, a book collector whose audacious plan to remake copyright law was ultimately for naught, died today. It was caught in the blast from a recent court decision, and received fatal injuries. Ironically, the settlement, which had been seriously injured in the spring, had been rumored to be planning a comeback tour. In the end, however, doctors declared that its internal divisions were incurable. The settlement was a little over two months short of its third birthday, and is survived by millions of orphan works.

Today, the Second Circuit decided In re: Literary Works in Electronic Databases Copyright Litigation, a kind of older sibling to the Google Books case. That suit, by freelance writers against databases (like LEXIS/NEXIS) that they claimed were including their articles without authorization, has been kicking around for a long time in one form or another. It has been to the Supreme Court twice: first in 2001 on an issue of substantive copyright law, and again in 2010 on a jurisdictional point. Most recently, it has had the form of a proposed class-action settlement on behalf of all the freelancers that would have paid them up to $18 million in exchange for letting the databases reproduce the articles in perpetuity. The Second Circuit held that the settlement couldn’t be approved because different parts of the class were so at odds with each other that they each needed their own lawyers in the negotiations. Since the deal was worked out by a single group of lawyers for the whole class, that obviously hadn’t happened, and it’s back to square one for the settlement talks in the freelancer lawsuit, or maybe even square zero if some of the parties give up on settlement entirely.

The parallels between the two lawsuits — the Google Books suit and the freelancers’ suit — are striking. Both were brought as putative class actions on behalf of copyright owners against large commercial entities that have allegedly been making infringing copies. Both were brought by a coalition including the Authors Guild, and indeed, they even used the same lawyers. Both morphed into global settlements that would have provided compensation in exchange for allowing the works to stay in the databases — and possibly be used in new ones. And both settlement classes were riven by the same, fatal fault lines.

In the freelancers’ lawsuit, the Second Circuit explained that there was an inherent conflict within the class based whether the articles had been registered with the Copyright Office. The law of registration is a mess, but here are the two basic rules, as they apply to “United States works”:

  • A copyright owner may not file a lawsuit until after registration.
  • A copyright owner can receive much larger damage awards for infringements that take place after registration.

This meant that the articles in the freelancers’ suit fell into three distinct groups:

  • Articles that were registered early (before the infringement) and so were eligible for big payouts in a lawsuit.
  • Articles that were registered later (after the infringement), and so were eligible only for small payouts in a lawsuit.
  • Articles that haven’t yet been registered, and so weren’t yet eligible for any payouts in a lawsuit.

(This last part is confusing, and may require a brief digression. The tl;dr version is “skip this paragraph.” You may wonder why unregistered works could be in the settlement at all. This was the point of the Supreme Court’s second ruling: it held that the “register before suing” rule is only a prerequisite to suing, not an absolute bar on the court’s ability to hear the case. You may also wonder why unregistered works could be eligible for any payouts at all. That’s again because registration is only a prerequisite to suing. Infringement of an unregistered work is still an infringement; it’s just not eligible for a lawsuit yet. If the copyright owner ever gets around to registering, she can bring suit then, and collect damages for the past infringement.)

The freelancers’ settlement provided for different payouts for the different categories of works. Articles in the first group — Category A — got the biggest payments (starting at $1,500). Articles in the second group — Category B — got medium-sized payments (starting at $150). Articles in the last group — Category C — were far and away the most numerous but got the smallest payments (starting at $5). Moreover, the total payments (including attorneys’ fees and other costs) were capped at $18 million. If the total claims were larger than that number, the group C works took a haircut first, followed by the group B works and then the group A works.

The Second Circuit held that the members of the different groups had obviously different incentives. Each wanted to maximize its total take. Nonetheless, the members of group C got an obviously smaller payment. Now, this in itself wasn’t fatal to the settlement. Their claims might well have been objectively worth less. They might have been getting an exceptionally good deal for their low-value claims. But the court straight up admitted that it had “no basis for assessing whether the discount applied to Category C’s recovery appropriately reflects” the value of those claims.

The only way to police for appropriate valuation, it held, was each group to be separately represented. With its own attorneys in the negotiating room (and looking to maximize their own fees), each group would get as much, but only as much, as its claims were worth. The actual settlement, however, was negotiated by a single set of attorneys on behalf of the whole class, leading to the temptation to maximize the bottom-line cash value of the settlement by throwing in every possible claim and class member and selling off these ballast claims (the Category C’s) on the cheap. Thus, the court remanded back to the trial court to consider dividing the class of freelancers into subclasses. It hinted, but didn’t definitively say, that dividing it along the A/B/C lines would suffice.

And now back to the Google Books case. The class shares some of the same registration issues. There is no precise equivalent to Category C in the plaintiff class, but there are equivalents to Categories A and B, depending on the timing of registration and where the work was published. If they needed separate representation in the freelancers’ case, they need separate representation here: both are compensation-providing settlements in a copyright class action. But, just as in the freelancers’ case, there have never been subclasses or separate representation, which means it’s back to square one or square zero here, as well.

And really, square one isn’t an option. That’s because there are other divisions within the plaintiff class in the Google Books case, divisions that are arguably just as serious. Objectors, scholars, and even Judge Chin himself have called attention to them. Here are just a few:

  • United States copyright owners versus foreign copyright owners
  • Owners of full books versus owners of shorter “inserts”
  • Commercial authors versus academic authors
  • Easily findable owners versus orphan owners

Creating subclasses that track these different groups, then supplying them with their own skilled lawyers, and putting everyone in a room together to knock out a new settlement: it just isn’t going to happen. The Venn diagram will have at least a dozen different boxes in it. The expense would be absurd, it would take months or more likely years to pull off, and I still can’t imagine those negotiations succeeding, especially not after the level of vehement opposition to the original settlement. There is no trust here, and Judge Chin had already been banging heads together to get the case moving. No, the Google Books settlement — any settlement — is now dead. There is no square one: this case is going back to litigation.

As if by astonishing coincidence, today also brought news of a third copyright class-action settlement, one also involving Google. During the “let’s all sue YouTube” fad of 2007, the National Music Publishers Association joined the pile-on with a class action on behalf of music copyright owners. The cases were consolidated as Viacom v. YouTube, and all went down to defeat together when the trial judge ruled that YouTube was protected by Section 512 of the DMCA. That ruling is up on appeal, as first-named plaintiff Viacom continues to slug it out, but today the music publishers announced that they’re giving up. They’re dropping their appeal, and in exchange, “[M]usic publishers will have the opportunity to enter into a License Agreement with YouTube and receive royalties from YouTube for musical works in videos posted on the site.” This sounds sufficiently similar to the content monetization opportunities Google already offers through YouTube’s ContentID program that it really appears that Google gave up nothing as part of the “settlement.”

One naturally wonders whether something similar is about to happen in the Google Books case — call it square minus one. The road to class-wide settlement — even to a much more modest settlement that covers only scanning and searching — now appears to be barred. What is more, in light of the freelancers’ case and the Supreme Court’s recent Wal-Mart case, the road to class-wide litigation also looks to be extraordinarily difficult. Google will raise many of the same adequacy of representation arguments in its opposition to class certification. It might still be more feasible for a few copyright owners holding large number of copyrights to litigate on an individual basis — but the major publishers, who best fit that bill, have all more or less made their peace with Google through its Partner Program. The odds of the authors being able to see this one through to the end have just dropped precipitously. Google is holding all the cards now, and they’re all full houses.

(Hat tip to C.E. Petit.)

UPDATE August 19: The class action that the music publishers were part of was never formally consolidated with the Viacom lawsuit. Instead, the two were merely coordinated; they went down to defeat on the same summary judgment motion, but remain separate cases. Also, the music publishers claim that the offer “has never been available before now.” Given, however, that the agreement itself is confidential, this statement has all the credibility of a mattress store’s promise of an “exclusive” model: technically true, but you can still find a suspiciously similar deal down the street. If I am wrong about this, the publishers can easily prove me wrong by releasing the details of the terms that have never been before been available. (Hat tip to Timothy Lee’s Ars Technica article for these two pickups.)

That’s the heart of it. Tomorrow, I hope to pick up on a different thread in the freelancers’ opinion: a passage about how far a class-action settlement can go in releasing claims based on future infringement. By another remarkable coincidence, I gave a presentation on this very topic less than a week ago, so the issue is fresh in my mind. Coming up next: why the Second Circuit was right, and why Judge Chin was right, too.

When Editors Don’t

One of the main arguments publishers make for how they add value in the book ecosystem is production values: a professionally edited and designed book will be attractive, clean, and readable. Why is it, then, that the e-reader versions of so many books from major publishers are riddled with obvious design mistakes? I have seen:

  • No chapter divisions
  • Non-interactive indices keyed to physical page numbers (useless in a “location”-based Kindle book)
  • Drop capitals formatted inconsistently within a book
  • Endnotes with no way to navigate between note number and note
  • Unnecessary hyphens wherever there were line breaks in the physical book
  • Typographically incorrect quotation marks
  • Repeated passages

The inescapable conclusion is that the publishers either didn’t notice these issues or didn’t care enough to fix them. Now, perhaps publishers believe that readers don’t care about production values in electronic editions. But if not, then remind me why we we’ll need publishers in the all-digital era?

It’s the same thing in news, in music, and everywhere else you look. You don’t get to be part of the future by pointing to what you did in the past. The argument that only professionals can do good work isn’t very convincing if the professionals don’t actually do good work.

On Real Names

danah boyd’s recent “‘Real Names’ Policies Are an Abuse of Power” is the best moderate-length case against Google+’s policy that users must sign up under their “real” names (whatever that means). In her words, such policies are “an authoritarian assertion of power over vulnerable people.”

My own take is slightly different. Google made two mistakes. The first was a failure of execution: launching the product without thinking through all of the privacy issues, then implementing the policy inconsistently and without transparency. But really, that’s par for the course for Google, which has never been good at looking before it makes privacy leaps, or at customer service. The company’s algorithmic ideology, of course, bears the blame.

Google’s second mistake is more fundamental. Diversity matters, both of people and of spaces. The Internet needs named spaces. It also needs nym-ed spaces, and nameless ones. For some commercial, educational, and civic spaces, the case for identity disclosure makes a lot of sense. But Google wants Google+ to be an everything space: one for informal socializing, rich intellectual debate, political engagement, deep personal and confidential sharing, and so much more. And that’s incompatible with a real names policy, because if you want your space to mirror all of society, you have to accept that society itself has a diversity of named, nym-ed, and nameless spaces. That’s why the Google+ policy is a “radical departure from the way identity and speech interact in the real world,” not because it requires real names as such. It squashes context, and context is central to privacy.