The Laboratorium
September 2011

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I’ll be speaking about law and computers twice next week.

On Wednesday the 5th, I’ll be the 30th Anniversary Symposium of the Rutgers Computer and Technology Law Journal. I’m giving a talk at 4:00 PM on “Technological Textualism.” Be sure to stick around for the reception to follow and the 6:30 PM keynote address by Orin Kerr.

Then, on Thursday the 6th, I’ll be at Brooklyn College for an 11:00 AM panel on Robot Law. I’ll be talking about how the law should deal with complex systems. My co-panelists are Frank Pasquale and Samir Chopra, the author of the just-released A Legal Theory for Autonomous Artificial Agents.

The Procedural Swamp

I admit that I am baffled by the Authors Guild suit against HathiTrust and its members. Even if you are unconvinced by the particulars of the libraries’ potential defenses, this case faces massive procedural obstacles. True, it doesn’t have the class-action messes of the suit against Google. But it also has serious problems not present in the Google suit — some of them of the Authors Guild’s own making. Scrivener’s Error, who does this sort of thing for a living, has been promising a detailed post soon. But in the meantime, here are three very real concerns any observer of the #HathiSuit should be aware of. Think of them as “Why sue the libraries?”, “Why sue now?”, and “Who is suing?”

Sovereign Immunity

First, there is the problem that at least four of the six defendants are state universities. (HathiTrust is somewhere between a partnership and an arm of the University of Michigan; Cornell is a hybrid of public and private colleges, but for present purposes would probably be considered “private.”) This is a problem because states are immune from being sued in federal court, thanks to a little thing called the Eleventh Amendment. Multiple copyright lawsuits against state universities have gone down to defeat on just this point.

Some of you — lawyers who remember Federal Courts, perhaps — are no doubt objecting that the Eleventh Amendment bars only suits for money damages against states. Complaints that seek only forward-looking injunctive relief, like the one here, are allowed to go forward. This is true, but only half-true, and the other half matters. The Ex parte Young doctrine is an admittedly bizarre legal fiction that lets state officers be sued for an injunction ordering them to comply with federal law. The theory is that since federal law trumps state law, an official who disregards the federal law is acting beyond the scope of his authority and therefore can no longer claim to be protected by the state’s sovereign immunity. Thus, by naming the individual officer as a defendant, you can at least get an injunction that will have the practical effect of bringing the state into line with federal law in the future.

So far, so good. But to take advantage of Ex parte Young, you have to go along with its fiction, which means actually naming the officers as defendants. And this the Authors Guild has not done. For example, the suit names “The Regents of the University of Michigan.” That is a single defendant, the corporate body established in the Michigan state constitution that governs the University of Michigan. This is not a suit against Julia Donovan Darlow, Laurence B. Deitch, and the other six Regents in their “personal capacity,” and so it is not a suit of the sort that Ex parte Young would allow.

This is an easy enough mistake to fix. Identify the officers who are allegedly violating the law, amend the complaint to identify them, serve them with process, and the suit can go forward. Still, it’s a little baffling to me why the Authors Guild simply didn’t do this from the start and save itself the trouble of going back to do it right. Either I’m missing a doctrinal detail, or the Authors Guild fumbled just about the first thing it was possible to fumble: putting the right names on the first page of the complaint.


It has been seven years since the Google Books project began, and six years since the suit against Google was filed. Copyright ordinarily has a three-year statute of limitations. I don’t think that’s likely to be a problem in this case, as the scanning has been continuing, so that the plaintiffs here have a good shot at showing that at least one of their books was scanned within the last few years. Moreover, given HathiTrust’s preservation mission, fresh copies on new hard drives will be required now and then as old ones deteriorate, so the Authors Guild can probably make out a case that there is a likelihood of future copying which should be enjoined.

That, however, leaves the statute of limitations’s lesser-known cousin: laches. The doctrine of laches kicks in when the plaintiff when the plaintiff has shown unreasonable delay in filing suit. Here is the doctrine as explained by arguably the greatest copyright judge of all time, Learned Hand:

It must be obvious to every one familiar with equitable principles that it is inequitable for the owner of a copyright, with full notice of an intended infringement, to stand inactive while the proposed infringer spends large sums of money in its exploitation, and to intervene only when his speculation has proved a success. Delay under such circumstances allows the owner to speculate without risk with the other’s money; he cannot possibly lose, and he may win.

There are two elements to laches: (1) an unreasonable delay by the plaintiff and (2) prejudice to the defendant. In terms of delay, all of the facts giving rise to the Authors Guild’s claim to relief were apparent years ago when it sued Google. HathiTrust itself is three years old: its plans to pool scans, store, and index them are hardly new. The complaint makes hay out of the Orphan Works Project. But the only actual copyright infringement that it complains of is the scanning and storage at multiple sites. Meanwhile, the libraries have been sinking millions of dollars into the project. Expenditures made in reliance on the plaintiff’s delay are the classic example of prejudice.

Once again, the details are complicated. The suit against Google cuts both ways: it both explains some of the delay and makes the failure to bring the libraries in earlier less forgivable. Laches is usually unavailable in cases of willful infringement, but even if the libraries lose, they are extremely unlikely to be considered “willful” infringers as the term is used in U.S. copyright law. Laches is frequently said not to be a bar to injunctive relief against future infringements, but this rule may not apply when the “infringing aspect” of the future violations is the same as in the past violations — which might be the case here.

I haven’t found a case that convinces me that laches would clearly apply; I haven’t found a case that convinces me it clearly wouldn’t. The point is just that this is a real issue, one that the Authors Guild has, once again, brought upon itself. I can understand the tactical reasons it didn’t sue the libraries in 2005, particularly given the sovereign immunity issue. But the chickens set loose in 2005 have returned home, and they may well attempt to roost.


Unlike the suit against Google, the suit against the libraries is not a class action. Getting rid of the class allegations solves some problems, but it creates others. One of them is that the plaintiffs can no longer claim to act on behalf of all copyright owners whose books were scanned. Instead, it is a bedrock rule of copyright that only the “legal or beneficial owner of an exclusive right under a copyright” is allowed to bring suit.

This doctrine is known as “standing,” and it should be apparent how this presents a difficulty for the Authors Guild. There are about seven million volumes under copyright in HathiTrust collections. There are eight named plaintiffs in the lawsuit, and they list about sixty books to which they own the copyrights. That still leaves about seven million volumes unaccounted for.

Even if these plaintiffs win as to their own books, the usual language is that the winning plaintiff is entitled to an injunction against “future infringement of works owned by the plaintiff but not in suit.” The complaint asks for an injunction against “reproducing, distributing, or displaying Plaintiffs’ or any other copyrighted works.” Notice the difference? The Authors Guild wants the plug pulled on the whole HathiTrust enterprise, but it’s not clear that the court could go further than an order requiring the libraries to remove the individual named plaintiffs’ books from the collection.

The law does sometimes recognize “associational standing,” in which an organization brings suit in the name of its members. That’s what the Authors Guild and its two partners are attempting here. But even associational standing may not be enough to get the whole project shut down. As in other mass copyright cases — Napster and the reversed-on-other-grounds District Court opinion in Perfect 10 v. Google come to mind — the organizations would most likely end up being asked to give the libraries lists of their members, whose books the libraries would then have to remove from the collection. It’s also hotly debated whether associational standing even exists in copyright law; one of the two leading treatises says “yes” and the other says “no.”

The sting in the tail of the standing issue is that it may have the effect of taking the Orphan Works Program completely out of the litigation. Unless one of the actual plaintiffs in the case has a book included in the Program, or has some objective reason to fear she might be, she can’t bring suit to challenge it. That leaves the much harder claim that the scans themselves are infringing. This is one of the places where HathiTrust’s sloppiness with the orphan-identification process could come back to haunt it: I can see ways the Authors Guild might use it draw a clearer line between the named plaintiffs and the Orphan Works Program.


This post has more than the usual number of hedges and caveats. All three of these procedural topics are messy, messy, messy. I have done enough research to convince myself of everything I’ve said, but far less than I would if I were actually litigating this case. The parties’ lawyers, who are litigating this case, are getting paid to do this research, and I expect that they will put forth interesting arguments, ones that may well lead me to revise my opinions.

The takeaway is not that the lawsuit against the libraries is doomed for procedural reasons. Instead, it is that this is not some brilliant flanking movement around the swamp in which the lawsuit against Google has bogged down. This suit is going to be a slog, too. And the Authors Guild’s first sally onto the field does not leave me confident that it is entirely prepared for what lies ahead.

UPDATE 2011-09-27: Scrivener’s Error has gone live with part one of a detailed analysis of the suit. This one deals with Constitutional obstacles to the suit; more installments are on the way.

Ars Technica Chat Tomorrow

I’ll be doing an Ars Technica subscriber chat at 2:00 PM EDT tomorrow. Join me for some fun lawtech discussions with the Internet’s premier technology journalism site and its awesome readers.

A Comment

Due to technical glitches that I am investigating, this comment by Brandon Butler was not posted by my Movable Type installation yesterday. It has now retroactively appeared in the place in the comment sequence where it would have appeared if it had posted immediately. It provides a helpful summary of what the HathiTrust Orphan Works Program does and does not do. While there is clearly disagreement over the legal and moral implications of what the member libraries are doing, that disagreement should start from an accurate and shared understanding of the facts, and I regret the delay in enabling this comment to appear.

A general note: if you ever post a comment and it is either held for moderation or it does not appear, please email me immediately. I will investigate and attempt to fix the problem.

Google Times Two

If you’re in Washington, DC and are interested in all things Google, I’m on two panels next week that might be relevant to your queries:

On Monday the 19th, I’ll be on a lunchtime panel sponsored by the Federalist Society at the National Press Club: The Google Review: Regulation of Search Results and More. This one is a policy debate and should feature an interesting exchange of views.

And on Tuesday the 20th, I’ll be on a morning panel sponsored by the Computer and Communications Industry Association in the Rayburn Building on Capitol Hill: Understanding Search: The Infrastructure, Innovation & Impact of Today’s Search Technology. This one is a factual briefing and will emphasize how modern search works.

Both events are free and open to the public, but RSVPs are required. I hope to see (some of) you there.

Status Conference Summary (in Absentia)

I’m in Chicago, but my students went to today’s status conference in the Google Books case and filled me in. My deep thanks to Dominic Mauro NYLS ‘10, Raphael Majma NYLS ‘11, Leanne Gabinelli NYLS ‘11, and Kristoff Grospe NYLS ‘12, for their careful note-taking and concise summaries. Here are the highlights of what happened:

The plaintiffs (i.e. the Authors Guild’s class-action attorneys and the named publishers) and Google announced that they have agreed on a schedule for the pretrial proceedings. Judge Chin called the schedule “generous” with a notable sigh, but said that he would approve it. One gathers that he will not be sympathetic to any future requests for schedule extensions. Here is the plan:

  • The plaintiffs will move for class certification by December 11, 2011. Google will respond by January 26, 2012, and the plaintiffs will reply by March 12.

  • Discovery will need to be rebooted, since none has been done since 2006. The restarted discovery process will close on March 30, 2012. That gives a little over six months. Expert reports will be due by April 20, with rebuttal reports by May 10, and expert depositions May 14 through May 25.

  • Motions for summary judgment will be due by May 31, 2012. Opposition briefs will be due by July 9, with replies by July 31.

  • The pretrial conference will be held on a date chosen by Judge Chin.

Settlement discussions will continue in parallel with the motion practice. The publisher-Google talks have made substantial progress, and so Bruce Keller for the publishers said that the schedule “may not matter.” For the author class, Michael Boni expressed less optimism about the prospects for settlement. He suggested that Judge Chin could appoint a mediator or magistrate judge to help with the process, but Daralyn Durie for Google said “no thanks.” Judge Chin agreed not to appoint a mediator, but again offered to refer the parties to a magistrate judge if they want.

Judge Chin inquired about the framing of the case. He asked whether the legal issues focused on the display of snippets, or whether the plaintiffs wanted to “expand” the suit. Both Keller and Boni made a point of emphasizing that they saw the case more broadly. Keller explained that it was about copying, scanning, storing, and displaying the works (including, but not limited to snippets). Judge Chin expressed surprise that the list didn’t include “selling.” [JG: Now that the settlement is off the table, so is the fiction that the underlying copyright lawsuit came anywhere close to book sales.] Boni said that when the suit was filed in 2005, they couldn’t envision what kinds of uses would be made of the scans. [JG: It isn’t clear that this characterization helps his case.]

The lawsuit’s structure may also change. The authors and publishers may want to file amended complaints — unlike the joint complaint filed as part of the settlement, these would be separate. And the photographers are still kicking around. Their case is waiting for Google’s answer, which is currently due next month. They are content to wait until then, and then decide whether they want to join the author/publisher suit, join the settlement talks, or litigate on their own.

The HathiTrust lawsuit was not mentioned at all during the status conference.

HathiTrust Single-Handedly Sinks Orphan Works Reform

In a series of blog posts yesterday whose tone can only be described as “gleeful,” the Authors Guild has been showing that specific books aren’t orphans. So far, they’ve found copyright owners or literary agents for J.R. Salamanca’s The Lost Country, Albert Bandura’s Adolescent Aggression, and James Gould Cozzens’s Confusion. They didn’t track down Walter Lippmann’s The Communist World and Ours, but it appears that someone else did. The legwork involved wasn’t particularly intensive: some Google searches, some queries of standard copyright-related databases, and some phone calls.

This would be a dog-bites-man story, except for the fact that all of these books were on HathiTrust’s list of orphan works candidates. Oops. All of these books had gone through HathiTrust’s workflow, which was supposed to carry out “due diligence” to determine whether these works were likely to be orphans.

Once is a mistake, twice bad luck, and three times is a sign of a broken process. The Authors Guild’s experiment demonstrates that HathiTrust’s orphan-tagging workflow cannot be relied on to identify genuinely orphan works with sufficient confidence to be usable. Out of 166 books originally on the list, at least four have been identified as non-orphans. A 2.5% false positive rate isn’t going to be acceptable.

The workflow itself isn’t described in particularly much detail, despite HathiTrust’s promise to “post as much of the project’s internal documentation as appropriate on this page.” It calls for:

  • A check that the book is not available on Amazon or Bookfinder.
  • A check that the author isn’t on the “live list.”
  • “Look for copyright holder contact information.”
  • “Attempt email contact.”
  • “Attempt phone contact.”

Whatever those last three steps comprise, it isn’t working. Whatever databases they’re checking for contact information aren’t sufficient.

On Twitter, Justin Grimes referred to these findings as “The ‘one example’ rule for invalidating arguments.” It’s true that these are individual books, not necessarily representative of the broader corpus of books scanned by Google and held by HathiTrust libraries. But this was also a sample chosen by HathiTrust itself. This was the libraries’ chance to put their best foot forward, to show that their process could be trusted, to show that there are real orphans out there. The results were not reassuring.

Legally, there are reasons why these non-orphans may not matter much in this case. Paul Aiken, Executive Director of the Authors Guild, has said that the lawsuit is primarily about the large-scale digitization (millions of books), not the much smaller Orphans Works Project (hundreds). The Authors Guild may have a hard time making legal claims specifically about the Project, for procedural reasons I’ll get into in future posts. Still, these discoveries are, as Eric Hellman said in a comment, “Major egg on the elephant’s face!”

And, looking to the broader picture, these revelations will discredit other efforts to make genuine orphan works more accessible. No one will ever be able to make the orphan works argument again without opponents bringing up the HathiTrust orphans that weren’t. Copyright owners will always regard such efforts with suspicion, as a pretext just for distributing the books, copyright be damned. And the idea of a “diligent search” sounds a lot less reassuring now that HathiTrust’s initial searches have been shown to be ineffective in multiple cases. The title of this post may be an exaggeration, but not by much.

I hope to update this post to deal with any responses from HathiTtust and the libraries, and with further developments.

The Turn

Tomorrow’s status conference should be very revealing. (As a reminder: 11:00 AM in courtroom 11A, at 500 Pearl Street; arrive early to allow time to get through security.) Unfortunately, I’m not able to attend, due to a workshop I committed to long before the status conference was scheduled. Some of my students will be attending, and I’m hoping to get a detailed report from them immediately after the conference ends. We should learn a great deal about the future of the Google Books case, and about the just-filed HathiTrust case.

The Orphan Wars

Just when I thought that the Google Books case might be tailing off towards an anticlimactic, unresolved ending — bam! The Authors Guild today filed suit against the HathiTrust, the library partnership holding many of the scans received from Google. You have to say this for authors: they sure know how to time a plot twist for maximum dramatic impact. I’ll give a quick summary of the important facts about the lawsuit, and then a few thoughts about what it means.


The story starts with Google’s scanning agreements with the libraries: each time Google scans a book, it returns both the physical book and a digital copy to the library that gave it the book. The libraries then gave their scans to the HathiTrust, which functions like a digital version of a shared off-site storage warehouse. HathiTrust makes multiple copies of each file, storing versions on hard drives and tape backups at both Michigan and Indiana. It offers the public bibliographic information about the books, and provides a full-text search engine. Unlike Google Books, however, which shows “snippets” from the books as search results, HathiTrust will only tell users the page numbers where the search terms occur. If a book is in the public domain, HathiTrust turns on full view, letting users read it online. (If you’re affiliated with one the member institutions, you can also download the book as a PDF.)

This spring, HathiTrust announced the “Orphan Works Project,” which aimed to investigate the rights status of the books still in copyright. It would investigate the author and publisher information available about the book; if they could not be located and the book was unavailable, it would be flagged as a possible orphan and put on a list of candidates. If at any time a copyright owner is identified and located (e.g. because they step forward), the book is removed from the list.

Then the Michigan library announced that it would take these identified orphans and make them available for full view to the university’s students, faculty, and other affiliates. Other universities announced their own participation later in the summer. Each university is preparing to make the books that came from its library and that the process identifies as being orphans available to its own affiliates, but not to the other universities. The first batch of book is scheduled to go in full view on October 13.

Claims: The complaint alleges that the universities and HathiTrust are violating copyright owners’ rights by scanning, duplicating, and distributing their books. It doesn’t ask for damages, but it does request a declaration that what the defendants are doing violates the law. It also seeks an injunction to stop them from further scanning or displaying the books, and to “impound” the digital copies — i.e. have them held in escrow where the defendants can’t get at them.

Defenses: Libraries have a complicated set of specific statutory privileges, set out in Section 108 of the Copyright Act. They let libraries make certain kinds of copies for preservation and research use. I haven’t heard a detailed argument that what HathiTrust is doing fits within Section 108’s finely-drawn categories; of course the Authors Guild asserts that it doesn’t. That leaves Section 107: fair use. Except for the Orphan Works Project, the libraries’ fair use case is arguably even stronger than Google’s: they’re using the copies for preservation, and unlike Google, they don’t even show snippets. The orphan works uses … let’s just say that’s legal terra incognita. The complaint also argues that the libraries’ copies contribute to security risks that the books will leak out, but it doesn’t allege any specifically unsafe practices, nor does it claim that any books have actually leaked out.

Plaintiffs: This new suit is not a class action. Instead, the Authors Guild is suing as an “associational plaintiff” on behalf of its members. It is joined by two foreign authors’ groups — the Australian Society of Authors and the Union Des Écrivaines et des Écrivains Québécois — and by eight individual authors: Pat Cummings, Angelo Loukakis, Roxana Robinson, André Roy, James Shapiro, Danièle Simpson, T.J. Stiles, and Fay Weldon. Except for Weldon, the individual authors are all officers or board members of the institutional plaintiffs.

Defendants: In addition to HathiTrust, five universities are named as defendants: Michigan, California, Wisconsin, Indiana, and Cornell. The first four are public; Cornell is private. All of the named universities except for Indiana have announced their plans to participate in HathiTrust’s Orphan Works Project. The other members of HathiTrust, including Universities that are participating in the Project (e.g. Johns Hopkins and Florida) but are not Google Books Library Partners, are not named as defendants.


Timing: One might well ask, why now? Google started scanning and giving copies to the libraries in late 2004. The same basic lawsuit could have been filed at any time in the last seven years. Initially, the libraries were unattractive defendants. Not only did their non-commercial status bolster their case, but the public universities were likely shielded by sovereign immunity, which makes it impossible to get money damages from a state government. Google, with its deep pockets and extensive commercialization, was a much better target. Then, as the lawsuit turned into a settlement, the libraries were brought in on the talks, and ultimately became partners in propounding the settlement. (At the fairness hearing, Michigan’s Paul Courant argued on the same side as the Authors Guild’s lawyers.)

If there had been a settlement, it would have gone a long way to define what libraries could and couldn’t do. The settlement would have explicitly permitted the kinds of backups and storage that the HathiTrust is engaged in. It wouldn’t have reached the type of orphan works distribution that the universities now propose to make, but the existence of the Institutional Subscription would have made that issue moot for the participating libraries. Of course, Judge Chin rejected the proposed settlement, and the parties went off into further talks. Then came Literary Works, which I think scotched any possibility of settlement, even on much narrower terms.

Thus, I surmise that the Google Books talks have broken down irreparably. The authors now have nothing to lose there by alienating the libraries they were until recently working with. The impending launch of the HathiTrust Orphan Works Project lit a fuse on the matter. Perhaps the upcoming Google Books status conference on Thursday provided a deadline for the Authors Guild to choose its course of action.

Standing: The complaint doesn’t clearly distinguish between copyright violations from scanning the books and making database copies, and copyright violations for showing the books to users. The authors have a comparatively better case for the full-text Orphan Works Project than for the scanning and indexing. But the complaint is drawn much more broadly; it emphasizes the millions of books in the HathiTrust, rather than the hundreds in the actual orphan pipeline.

There’s a reason for this. If the Authors Guild sued only to stop the orphan works displays, it would likely lack standing to bring the suit, since none of its members would be harmed by having their specific books displayed. That’s the advantage for the libraries of using a book-by-book process: it’s easy not to include any books that current Authors Guild members would own the copyright in. Indeed, by picking only out-of-print books with authors who can’t be found, they almost guaranteed that no specific author would step forward to sue. It wasn’t a certainty, but at a hundred or two hundred books, the odds were good.

Even as an organization, an associational plaintiff can only bring the claims of its members. The Authors Guild would have needed to identify a member whose book was on the orphan list. Remember that this suit isn’t a class action; indeed, it would have been very hard to bring a class action here after the Authors Guild and Literary Works decisions. Thus, instead, the Authors Guild drew a complaint that described the infringements suffered by its members more broadly. I expect the defendants to use this standing problem to try to narrow the issues actually considered by the court.

Grand Strategy: The Authors Guild has staked a tremendous amount of its institutional legitimacy on big copyright lawsuits. After the Authors Guild and Literary Works settlements were both rejected in the same year, it might have looked for an exit strategy. Instead, it doubled down — and whom did it sue? Not the multinational publishers, not Googlezon, but the cuddly lil’ old libraries. Perhaps this suit will vindicate the strategy and bolster authors’ standing in the world of electronic books, but it could also turn them into the party of no. Internally, if this new adventure turns out poorly, one wonders how much longer the Authors Guild’s members will continue to support its long-on-litigation portfolio.

The libraries had to have seen this coming. I’m sure that their general counsel have been stockpiling memos on the scans since 2004, and updated them this year with new memos on the Orphan Works Project. The exact form of the lawsuit and its timing may have been a surprise, but they clearly knew they were risking one. Indeed, the Orphan Works Project comes across as a deliberate attempt to test boundaries, perhaps even an attempt to provoke a suit so that the first orphan works battle would be fought on ground of the libraries’ own choosing. But no battle plan survives contact with the enemy, and the libraries are now very much caught up in things in a way they weren’t before.

This suit also upends many of the conversations taking place around the Digital Public Library of America. Building consensus will be a more difficult matter while the suit is underway: hope, fear, and anger will tug at stakeholders in subtle and complicated ways. The suit gives Congress yet another excuse to keep well clear of orphan works. And it shakes out the fault lines in a new way: the Authors Guild has now apparently flipped from being the authors’ group most in favor of quick orphan works action to being the authors’ group most against it. Where the publishers will end up when the dust settles has yet to be seen.

The Orphan Wars are upon us, I fear. We might have hoped that they would be the Orphan Discussions, or perhaps the Orphan Debates, but no. The Orphan Wars it will be.

Owning the Stack

My latest essay, a general-audience piece on the IP wars in the smartphone industry, is live at Ars Technica. Meet Owning the Stack:

In the last few weeks, the smartphone industry appeared to produce more lawsuits than phones. Apple briefly managed to stop the sale of the Samsung Galaxy Tab 10.1 in all of Europe, and is now going after the whole Galaxy line. Back Stateside, Google first complained that Microsoft and Apple were using “bogus patents” to target Android, then spent $12 billion for Motorola and its patent arsenal. These are big, high-stakes fights—and the last company left standing may walk away with control over nothing less than the smartphone market itself.

In the flood of stories about tactical filings and counter-filings, it’s easy to get lost in the details. But step back and it’s clear that the Smartphone Wars aren’t just a war of all against all; there’s an underlying logic to these disputes. Most companies are fighting to control one part of the hardware-software stack, then use that control to pry money free from the layers above them.

But the really big players—the Apples and Googles of the world—are fighting over the stack itself. Their combat arena: the global legal system.

The essay is my attempt to step back from the torrent of news stories about this lawsuit or that one, and get a long view on what legal disputes mean for the smartphone industry. All of the stories are in there, of course — they give the picture its overall shape — but I wanted to set them in some kind of meaningful context that helps us make sense of each new story as it arrives. I concluded that the industry today is converging on a few stacks: chains from network to hardware to operating system to apps. The legal plays are all about seizing a privileged place within a stack, taking control over other layers of the stack you’re in, or engaging in all-out war on a stack itself. Have a read, and let me know what you think.

Great Moments in Negotiation

The year is 1977, and the Department of Justice and AT&T are locked in a high-stakes antitrust lawsuit:

[DOJ lawyer Kenneth] Anderson heard [AT&T lawyer Hal] Levy out, and then he said, “I’ll tell you one thing. This is going to be a severed limbs case. We’re going to have severed limbs, AT&T limbs, on the table dripping blood. That’s the way this case is going to be settled. We’re not going to settle this thing with injunctive relief.”

“You can’t expect me to go back to my board of directors and tell them something like that,” Levy answered.

“That’s exactly what I want you to do,” said Anderson. “I want you to go back there and tell them that the next time they send somebody down here to talk about settling, I want to see severed limbs on the table. In fact, if you want to come in the door, you’ve got to throw a couple of severed limbs in ahead of you, or you don’t even get in the door.”

—Steve Coll, The Deal of the Century: The Breakup of AT&T (Touchstone 1988), page 120

Not Just Undignified: Ineffective, Too

From Martin v. Raffin, 21 N.Y.S. 1043 (N.Y. City Ct. 1893):

The defendant resides in Tremont; the process server called there twice to serve him with the summons herein, and some other papers. On his second visit he found the defendant actually in the shelter of his wife’s petticoats, he having sought that means of protection for the purpose of avoiding service of the summons herein. While in that position he was invited to accept service of the said summons, which he refused to do. The summons, and other legal papers, were then laid upon his shoulder, and he shook them to the floor.

Held, service was proper, and involved neither an “assault upon defendant’s person” nor a “trick.” The conduct of the defendant, however, was “reprehensible” in the view of the court. The thoughts of the defendant’s wife on the matter are not recorded.

Lawyers Never Learn

From Mylward v. Weldon (1596) 21 Eng. Rep. 136 (Ch.):

Forasmuch as it now appeared to this Court … that the said replication doth amount to six score sheets of paper, and yet all the matter thereof which is pertinent might have been well contrived in sixteen sheets of paper, … and for that it now appeared to his Lordship, by the confession of Richard Mylward, alias Alexander, the plaintiff’s son, that he the said Richard himself, did both draw, devise, and engross the same replication; and because his Lordship is of opinion that such an abuse is not in any sort to be tolerated, … it is therefore ordered, that the Warden of the Fleet shall take the said Richard Mylward, alias Alexander, into his custody, and shall bring him into Westminster Hall, on Saturday next, about ten of the clock in the forenoon, and then and there shall cut a hole in the myddest of the same engrossed replication (which is delivered unto him for that purpose), and put the said Richard’s head through the same hole, and so let the same replication hang about his shoulders, with the written side outward; and then, the same so hanging, shall lead the same Richard, bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting, and shall shew him at the bar of every of the three Courts within the Hall, …

Can we do this with articles?