The Laboratorium
December 2011

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There’s a Story There

From Robinson v. Equifax Information Services, LLC., No. Civ. A CV 040229 RP, 2005 WL 1712479 (S.D. Ala. July 22, 2005):

Robinson testified that she met Charles A. Dunn, III (“Dunn”), also known as “Lethal,” in 1997. From 1997 to 2002, Robinson and Dunn were involved in an off-and-on romantic relationship. In or around 2001, Robinson assisted Dunn in starting a business known as “Lethal’s Landscaping.”

Who Speaks for Copyright Owners?

In the comments to my post on Google’s motion to dismiss, Frances Grimble and Karen Coyle have asked excellent questions. Both of them pointed out the apparent contrast between positions Google has previously taken and positions it’s taking now. Here’s Frances:

Google thought the Author’s Guild was sufficiently representative to try to bind millions of copyright holders who are not members into two versions of a proposed settlement on an opt-out basis. So why, after several years of litigation, is Google now saying the AG is not representative?

And here’s Karen:

Doesn’t the argument that fair use (and other rights) have to be determined on a case-by-case basis speak directly against Google’s plans for mass digitization?

There are plausible “doctrinal” responses to both of these questions. By this I mean that I could put on my lawyer’s hat and argue that in each case, the two positions aren’t actually in conflict, because they’re answers to different questions. To Frances’s question about the Authors Guild’s representativeness, one could argue that the Guild itself was never going to be a class representative, and that associational standing and class certification have different legal standards. To Karen’s question about fair use, Google could perhaps argue that a finding of fair use could be entered on a blanket basis but that a finding of no fair use would require case-by-case examination.

Leaving aside their doctrinal merits, these responses are bound to seem somewhat unsatisfying. In part, this is due to the usual skepticism that arises whenever lawyers make apparently inconsistent arguments. “The vase was either already broken when you gave it to me, or I returned it in perfect condition” never goes over well — even though it may be the safest response a lawyer can give before the other side has informed her which vase her client is accused of breaking. But in part, I think that Karen and Frances are asking a question that goes beyond what our legal system can conceptualize.

There is a substantive issue here: what is legal to do with books? The legal system is capable of coming with answers to substantive questions. It channels them through one or another procedural form: legislation by Congress, private contracts, individual litigation, class actions, associational lawsuits, stare decisis, private collecting societies, statutory licenses, and so on. Each of these forms has its own rules, and asks particular questions. Class actions ask about adequacy of representation and the typicality of class representatives. Private collecting societies have a more stringent rule about participation, but there is no requirement that any of their clients be typical of the rest. Associational standing turns on whether the “claim asserted []or the relief requested requires the participation of individual members.” And so on. In order to get at this single substantive question, each different legal form asks different procedural questions.

But really there is only a single procedural question that matters: who is entitled to speak for copyright owners? The ins and outs of standing doctrine, preclusion, the scope of injunctions, and all the other ins and outs of procedure must seem like so much madness. There are reasons — quite often very good reasons — for all of these ins and outs. But in terms of the question of who speaks for whom, these doctrines are all trees and no forest.

I believe this is what Frances and Karen are driving at. Frances’s question asks how Google could claim that the Authors Guild both can and cannot speak for all authors. Karen’s question asks how Google could claim that fair use both can and cannot be resolved in a single court case. In both cases, the different procedural forms drive the answers apart. So I would like to peel away the unimportant bits of procedure and focus on the real procedural question: who will sit down and with what authority to figure out the rules of copyright for digital books?

One answer that doesn’t work is “only individual copyright owners can speak for themselves.” This falls short in at least three ways. First, we don’t know what the law is on all sorts of issues. A copyright statute written without computers clearly in mind, and with digitization clearly not in mind, simply doesn’t explain clearly what the rights of owners and readers are in many cases. Fair use’s boundary is intentionally fuzzy; the scope of library rights has become unintentionally so. The uncertainty that Congress has left us can only be cleared up by further acts of Congress or by litigation — both of which involve decisions that will shape copyright collectively.

Second, as the frequently dismissed prospect of individual author lawsuits against Google demonstrates, individual owners would be at a severe disadvantage trying to sort out their rights if they were entirely on their own. They need something better than the right to sue Google seriatim, each running up million-dollar legal bills. That something could be class actions, it could be suits by publishers who hold large portfolios of rights, it could be setting precedents that other copyright owners could use — but there has to be something. The possibility of mass infringement requires some possibility of mass response.

And third, in some cases, too many widely dispersed rights lead to chaos, confusion, and impoverishment. The classic parable here is that if an airplane at 35,000 feet trespassed on each house it flew over, air travel would be impossible. So property rights in land were simply limited, across the board, by Congress and the courts. Similarly, Congress and the courts sometimes take steps for society and for authors in general that individual copyright owners would not have agreed to. We have the mandatory license for cover songs, blanket privileges for some nonprofit performances, collective negotiations over webcasting and jukebox rates, and many other examples. Making the copyright system work well and fairly for all concerned means sometimes taking power away from copyright owners to make every decision for themselves.

But that leaves open the question of when and how to let some people speak for other copyright owners. The Google Books settlement was an extreme example: the Authors Guild, AAP, a handful of authors and publishers, and a handful of lawyers purported to speak for all copyright owners worldwide in setting up a licensing deal. That was far too broad a delegation, although Judge Chin’s opinion left open the question of whether it was the “speaking for all copyright owners” part or the “licensing deal” part that was the source of the problem.

The class action certification that the Authors Guild now seeks would let it speak on behalf of all book authors to stop Google’s book scanning. And that’s actually more or less how the HathiTrust suit against the library partners works, as well. Even though that’s not a class action, the injunction it seeks isn’t limited to the handful of authors who’re suing. Instead, the Authors Guild wants the entire HathiTrust database impounded so no one can access it. In effect, it’s asking, on behalf of all copyright owners, to have the HathiTrust database shut down. Some of them are presumably eager to have their works included.

The Supreme Court dealt with this kind of difference of opinion among copyright owners in Sony v. Universal City Studios. That wasn’t a class action: it pitted one group of copyright owners (movie studios) who disapproved of the VCR’s use to copy their works against another group (Mister Rogers, religious broadcasters) who approved of it. And the Supreme Court emphasized that neither group could speak for the other:

The respondents do not represent a class composed of all copyright holders. Yet a finding of contributory infringement would inevitably frustrate the interests of broadcasters in reaching the portion of their audience that is available only through time-shifting.

Of course, the fact that other copyright holders may welcome the practice of time-shifting does not mean that respondents should be deemed to have granted a license to copy their programs.

It’s actually from this opposition that Sony’s famous significant non-infringing uses test derives. That test effectively means that a copyright owner opposed to a technology “may not prevail unless the relief that he seeks affects only his programs, or unless he speaks for virtually all copyright holders with an interest in the outcome.” (emphasis added)

Of course, Sony didn’t settle the matter. The file-sharing cases were, in large measure, about whether “virtually all” really was the threshold required for a court to prevent the distribution of a technology. The question was posed, but not answered, in MGM v.Grokster, where the Supreme Court instead found the file-sharing networks liable because of their bad acts. Trying to figure out how to balance the wishes of the two groups of copyright owners was more than the Court wanted to take on. This same question is also percolating through the federal courts in the numerous DMCA section 512 lawsuits. Asking what duties a website has to police uploads over and above responding to DMCA requests is in part a way of asking whether copyright owners can speak for each other in trying to block online infringement.

The associational standing argument is a little different. Here, the question is whether the Authors Guild can speak for its own roughly 8,000 members. That’s a much smaller universe, so, intuitively, the law ought to be more willing to find associational standing for 8,000 than to certify a class of millions. Authors Guild members who disagree with the strategy or the goal can resign, as Ursula K. Le Guin did. It seems plausible to believe simultaneously that the Authors Guild can accurately represent the wishes of its membership and that it cannot represent the wishes of all authors (of course, this is the opposite of Google’s legal positions over the last few years).

Many of the other issues that have roiled the public debates and the comments section of this blog come down to similar questions. Collecting societies speak for their members; extended collective licensing lets them speak for non-members, as well. The Registry under the settlement would have had subtle powers to speak for authors and publishers in making a wide range of settlement-related decisions. Pamela Samuelson’s academic-author objections had to do with one specific copyright owner constituency’s fears of being misrepresented; the orphan works debates have to do with another which by its nature is particularly and inherently voiceless.

This is a helpful frame to keep in mind. The next year is likely to be quite eventful in the Google Books litigation, with major motions and perhaps decisions in all four of the cases. In addition to the substantive possibilities for what will happen to books, it will help to think about this one meta-procedural question. At each stage, with each new move, who is seeking to speak for which copyright owners, to do what?

Thanks again for posing such an interesting question.

How Copyright Is Like Cognitive Impairment

Sometime in your life, it’s likely that a doctor will ask you some silly questions. What day of the week is it? How do you spell “WORLD” backwards? Can you identify a pencil? Remember the word “ball?” Draw a pair of intersecting pentagons?

These questions are part of the MMSE (the “Mini Mental State Exam”) and they’re designed to assess, quickly, whether you’re thinking clearly. Millions of doctors use it. Indeed, it’s hard to get out of medical school without the MMSE becoming second nature. It’s so widely used, I’ve even heard stories of patients trying to memorize the answers to fool their doctors. (Which raises an interesting philosophical question, when you think about it.)

The MMSE was published in 1975, as an appendix to an article by three doctors: Marshall and Susan Folstein, and Paul McHugh. In the 1980s, Johns Hopkins and other hospitals did extensive testing to verify that the MMSE gave consistent scores, that it helped distinguish patients with different levels of cognitive impairment, and that it helped distinguish changes in mental status over time.

The Sweet 16 is another cognitive impairment test. Its creators did a study to validate that Sweet 16 and MMSE scores correlated strongly, and that the Sweet 16 could be as effective when used in a clinical setting.

And now for the bad news.

The Sweet 16 is no longer available for download. As detailed in an essay by John C. Newman and Robin Feldman in today’s New England Journal of Medicine, PAR, the copyright owner of the MMSE, apparently requested that the Sweet 16 be removed from the Internet.

What’s going on is that the Folsteins and McHugh licensed their copyright in the MMSE to PAR, which has been been enforcing copyright claims so that it can make money selling copies. So, for example, PAR sells 50 MMSE test forms for $66, or $1.32 each. The Sweet 16 was designed to be a replacement for the MMSE, but available open-access, so that anyone could use it freely and for free. It appears that the owners of the MMSE didn’t like competition. Newman and Feldman (or perhaps their editors at NEJM) were too polite to say it, but I’m not: any copyright claim here is legally weak and morally indefensible.

In the first place, copyright is not available for any “procedure” or “process.” Administering the MMSE is carrying out a process. It cannot be copyrighted, any more than a new drug could be. That’s what patents are for, not copyright. As the Supreme Court said in Baker v. Selden:

Take the case of medicines. Certain mixtures are found to be of great value in the healing art. If the discoverer writes and publishes a book on the subject (as regular physicians generally do), he gains no exclusive right to the manufacture and sale of the medicine; he gives that to the public.

The same goes for the administration of the MMSE. Its creators “gave that to the public.”

What about the forms? You might object that PAR isn’t trying to stop doctors from using the MMSE, only to stop others from selling the forms that go with it. Well, it turns out the Supreme Court rejected that argument, too. In Baker v. Selden, the defendant was selling a book of blank forms to be used with the plaintiff’s accounting system. The Court held that this, too, was permissible. Yes, the Court said, the plaintiff could copyright his book explaining the system of accounting, but that copyright would not extend to the forms themselves:

And where the art it teaches cannot be used without employing the methods and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art, and given therewith to the public; not given for the purpose of publication in other works explanatory of the art, but for the purpose of practical application. …

And, of course, in using the art, the ruled lines and headings of accounts must necessarily be used as incident to it.

The same goes for blank MMSE forms. Those are “necessary incidents” to administering the MMSE, at least if you want to write down the answers in a standardized way. Indeed, to the extent that the forms are designed to total up a patient’s score, a Copyright Office regulation says flatly that they’re uncopyrightable:

Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like, which are designed for recording information and do not in themselves convey information;

How about the portions of the forms that tell doctors and nurses what questions to ask? Here, the scope of any copyright is sharply limited by the fact that the MMSE is designed to do something, i.e., to measure cognitive status. Just as copyright isn’t available for those parts of a computer program that are “dictated by external factors,” those parts of the MMSE that are specifically useful in assessing cognitive status aren’t copyrightable. Only the unforced parts — which numbers to count backwards, which words to memorize — are potentially copyrightable. These might contain some expressive choices, but not very many. Whatever copyright there is in the MMSE, if any, is thin indeed.

The creators of the Sweet 16 did everything right. They used some orientation questions (“What is the year?”) that are also on the MMSE but which doctors have been asking patients for time immemorial. They used different words for the memorization tasks. They devised a new and different set of numeric questions. Their goal was to develop a test that replicated the MMSE’s clinical usefulness, while not borrowing any creative, non-clinical aspects from it. In that, they succeeded.

But that wasn’t enough for PAR, it appears, and the Sweet 16 had to come down. Nelson and Feldman explain the harm to doctors:

The restrictions on the MMSE’s use present clinicians with difficult choices: increase practice costs and complexity, risk copyright infringement, or sacrifice 30 years of practical experience and validation to adopt new cognitive assessment tools.

All three of these options are bad for patients. And there is no offsetting benefit. The Sweet 16 is so short and sweet that there is no need to restrict copying of it to make it feasible to make them widely available. Thanks to the Internet, anyone can easily download and print off as many copies as they need. Some medical professionals and hospitals genuinely need bulk-printed forms. But with free competition for them, suppliers would charge something much closer to the actual cost of producing the forms, rather than PAR’s inflated $1.32.

Nor is this a case in which copyright over the MMSE form matters one whit in encouraging the development of new diagnostic tests. Copyright wasn’t important in getting the MMSE created: Marshal Folstein wrote the questions down when his wife Susan, who was working the geriatric ward with him, asked him for a list she should ask her patients. Copyright wasn’t important in getting the MMSE published: the journal didn’t ask for a copyright assignment in the MMSE form. And copyright wasn’t important in getting the MMSE tested: it’s researchers’ job, for which they are paid, to do clinical studies.

PAR sells plenty of other items for which copyright makes sense: its manuals explaining how to administer and score some of its more complex tests are exactly the sort of book over which the Supreme Court allowed a copyright in Baker v. Selden. But not here. PAR does not have, and cannot have, a monopoly over the field of mental-status exams.

And finally comes what should have been first. Claiming a copyright to inhibit the use of the Sweet 16 is unethical. It puts profit above patient safety: it makes it harder to do quick and reliable mental-state exams. Physicians shouldn’t take part in a practice that pointlessly restricts the care patients receive; it contravenes the spirit of their most basic professional obligations. I hope that Doctors Folstein and McHugh will do the right thing: terminate their agreement with PAR, and explicitly release the MMSE into the public domain.

UPDATE: Dorothy Bishop, a professor at Oxford who has developed and published psychological tests, has a fascinating post on the issue. She describes her experiences producing her tests both with and without commercial publishers, and she finds something to like about both routes. Do read.

Critics, On and Off the Bench

In Cherry v. Des Moines Leader, 114 Iowa 298, decided by the Iowa Supreme Court in 1901, the defendant published a theater review reading, in part:

Effie is an old jade of 50 summers, Jessie a frisky filly of 40, and Addie, the flower of the family, a capering monstrosity of 35. Their long skinny arms, equipped with talons at the extremities, swung mechanically, and anon waived frantically at the suffering audience. The mouths of their rancid features opened like caverns, and sounds like the wailings of damned souls issued therefrom. They pranced around the stage with a motion that suggested a cross between the danse du ventre and fox trot,—strange creatures with painted faces and hideous mien. Effie is spavined, Addie is stringhalt, and Jessie, the only one who showed her stockings, has legs with calves as classic in their outlines as the curves of a broom handle.

Addie sued for libel, but the court held:

If there ever was a case justifying ridicule and sarcasm,—aye, even gross exaggeration,—it is the one now before us. According to the record, the performance given by the plaintiff and the company of which she was a member was not only childish, but ridiculous in the extreme. A dramatic critic should be allowed considerable license in such a case.


Google Moves to Dismiss

Google gave me an early Christmas present today: a motion to dismiss the Authors Guild as a plaintiff from its case against Google, with plenty of interesting legal details to unwrap. The motion also seeks to have the American Society of Media Photographers and other visual artists’ groups dropped from their own suit against Google. If granted, the motion would leave behind only individual artists and authors in the two lawsuits against Google. We have the full motion and supporting materials at the Public Index; all of the legal argument is in the supporting brief.

The only that Google raises here is “associational standing.” Fair use, library rights, licenses, improper plaintiff class — none of these issues are on the table yet. They will be in due course, and the current motion gives some interesting hints at what Google may eventually argue. But for now, the only issue Google raises is whether the Authors Guild, the ASMP, and the other visual artists’ groups can take part in the lawsuit.

The reason why not is simple. Ordinarily, only the person who has allegedly been injured by the defendant’s actions has “standing” to sue. If I’m outraged at the putrid food you were served at Burger Lord, I can’t just rush off to court to sue Burger Lord. It’s your call whether to sue them, not mine, and if you do, you need to direct the lawsuit yourself. My outrage doesn’t give me standing; your food poisoning does.

In a copyright case, standing comes from ownership. Only the “legal or beneficial owner” of the exclusive right the defendant has allegedly infringed has standing to sue. Since the Authors Guild doesn’t own the copyrights in its members’ books, it can’t sue in its own behalf.

There is an exception. It’s the one the Sierra Club uses to sue to block environmentally harmful development, or that [insert favorite membership organization here] uses to sue over [insert legal issue affecting group’s members here]. Membership organizations can assert “associational” standing if their members would have standing to sue.

But this is a limited exception, and that’s what Google’s motion is about. Google’s argument, in a nutshell, is that the legal issues this case will confront will require too much individualized proof for associational standing to work. As Google sees it, deciding whether its scanning and indexing infringes on each author’s book will require deciding (a) whether that author really owns the relevant rights, and (b) whether Google has a fair use defense specific to that book. Both of these inquiries, Google alleges, are so fact-dependent that they will “require[] the participation of individual members in the lawsuit,” thereby making associational standing impermissible.

Google’s arguments on both of these points are interesting. When it comes to ownership, Google’s brief effectively asserts that the e-rights situation for books is a tarpit in a bog under a swamp shrouded in fog. You want to sue us as an association, it asks? Fine. Just sort out who owns e-rights throughout the publishing industry first. Get back to us when you’re done. (In one especially clever bit of lawyering, Google quotes guides published by the Authors Guild and the ASMP to make its point that book licensing is complicated and messy.)

As for fair use, it helps to think of this motion as a trailer for Google’s opposition to class certification, coming to a courthouse near you in January. Google argues that the “individualized analysis” required by fair use will vary extensively from book to book and artwork to artwork. Some books are creative; some are more informational. Some are in print; some are out of print. Expect to see a more detailed version of this argument rolled out in January, when Google argues that the class of plaintiff authors is simply too diverse to litigate as a group.

What happens next? The Authors Guild and visual artists will file their responses to Google’s motion by January 23, and Google will reply in early February. In the meantime, Google will file its own response to the class certification motion by January 26, with the plaintiffs’ replies in March. The timing is interleaved, and so are some of the factual and legal issues, so I wouldn’t be surprised by a single opinion addressing both sets of motions.

Happy holidays to everyone out there in Google Books land; this has certainly been an interesting year we’ve enjoyed together. I look forward to continuing these conversations with you all in 2012.

The Best Sentence I Have Read Today

Fear of Apple is about losing control over the software on our computers. Fear of Google is about losing control over our privacy.

John Gruber, There Is a Flip Side, Daring Fireball (Dec. 19, 2011)

A Simple Proposal

The knowledge of noninfringement it takes to be liable for sending a false takedown notice under section 512(f) should be the same as the knowledge of infringement it takes to lose the safe harbor under section 512(c)(1)(A). Who’s with me?

When Is a Takedown Notice Not a Takedown Notice?

Last week, the file-distribution site Megaupload launched a $3 million music video. It features the likes of Kanye West, Snoop Dogg, Kim Kardashian, and many others offering testimonials to Megaupload, set to a moderately catchy tune. It’s safe to say that music companies were not happy: they’ve been saying for months that Megaupload and other “cyberlockers” are blatant infringers making a mockery of copyright law. So when the video hit YouTube, UMG issued a takedown notice, and the Megaupload song promptly disappeared from YouTube.

Megaupload hit back, hard. It claimed that it owned all the copyrights in the song and video, and had the signed releases from the featured artists to prove it. That made UMG’s takedown notice baseless, so Megaupload filed a counter-notice with YouTube — and also a federal lawsuit. It relied on section 512(f) of the DMCA, which imposes damages on anyone “who knowingly materially misrepresents” that content taken down is infringing.

Universal just filed a response, which is both fascinating and unsettling. It doesn’t argue that the video is infringing or that the takedown was justified. Instead, it raises a variety of wholly procedural arguments. Of those arguments, the most fascinating and most unsettling is UMG’s claim that it can’t be liable for sending a false DMCA notice, because it never sent a DMCA notice at all. As UMG explains:

The UMG-YouTube agreement grants UMG rights to effect the removal of user-posted videos through YouTube’s Content Management System (“CMS”), based on a number of contractually specified criteria that are not limited to the infringements of copyrights owned or controlled by UMG. Dotcom speculates in his declaration that Universal must have sent a so-called “DMCA notification form,” such as the one he printed and attached at Ex. E to his declaration, to YouTube. But UMG (which interacts with YouTube) does not use that form when requesting the removal of material pursuant to UMG’s contract with YouTube. UMG uses YouTube’s automated CMS system.

Think about the implications of this position. It gives copyright owners free bites at any apples they like. They’re free to tell YouTube to take down any videos they like, even when there’s absolutely no basis in copyright law for the takedown, and they know there isn’t one. Instead of facing only the weak remedies of 512(f) (under which the courts have exonerated copyright owners who sent takedowns based on a genuine but unreasonable belief of infringement), they face no legal remedies at all. They’re playing poker without an ante: they can quietly fold whenever their bluff is called, and be none the poorer. In other words, in UMG’s view, YouTube’s CMS allows copyright owners to opt out of the parts of the DMCA they don’t like, while retaining all the benefits of the parts they do like. So much for the copyright “balance.”

But here’s the thing. YouTube has its CMS in the first place because of the relentless pressure of copyright owners. They complained that searching for infringing videos, one by one, and sending individual takedown notices, one by one, was too much work. Indeed, some of them sued YouTube, claiming that it was facilitating infringement. YouTube’s response was the CMS, and the litigious-copyright-owner consensus seems to be that some similar system is a necessary condition of compliance with the DMCA. That is: you implement an automated infringement-detection-and-notification system, or you’re liable for your users’ infringements. If that’s the test, then no user-generated-content site can long afford to be without one.

Irony abounds. Copyright owners have used the DMCA itself to press for a system that shields them from the only legal risks they could face under the DMCA. This may be only a side effect of their main goal — forcing sites to self-censor — but it is surely a welcome one for them. For those who believe that copyright owners have the limited exclusive rights given them by law and no more, not so much.

I look forward to seeing Google’s reaction to all of this. Ars Technica plans to ask Google for a copy of its content-owner terms of service, which could shed some light on whether the CMS really does opt out of 512(f). And if the judge ends up holding that a YouTube takedown notice is not a DMCA takedown notice, then Google’s should amend the terms (and if necessary the system itself) to make clear that it is. With great takedown power must come at least minimal responsibility.

Keep this in mind as you watch the continuing House markup of SOPA today, and shudder.

UPDATE: Mike Masnick at TechDirt has a fascinating and quite plausible suggestion that UMG’s claimed right to pull the video comes from its Vevo agreement with Google.

UPDATE: Timothy Lee at Ars Technica got a more detailed quote from YouTube:

Our partners do not have the right to take down videos from YouTube unless they own the rights to them or they are live performances controlled through exclusive agreements with their artists, which is why we reinstated it.

The Worst Sentence I Have Read Today

If you don’t choose your movies based on what the guy at the box office recommends, why would you choose your books that way?

Farhad Manjoo, Don’t Support Your Local Bookseller, Slate, Dec. 13, 2011

Bottom Gear

I recently went looking for the new “density” setting on Google Reader. The instructions read:

We recently enhanced support for different screen sizes by bringing more information onto the page if we detect you are using a small screen. If you prefer this tighter density, even on large screens, you can switch to the “Cozy” or “Compact” setting by clicking on the settings gear on the right hand side of the screen.

It took me several minutes to find the setting. I clicked on the gear, selected “Reader settings,” and hunted fruitlessly through the tabs. None of them had anything about density. I wondered whether this was a feature begin rolled out to users in stages, one I hadn’t been cleared for yet. Then I realized the problem. There are two settings gears on the right hand side of the screen:

two settings gears

If you click on the top gear, you get this:

Reader settings / Reader help

If you click on the bottom gear, you get this:

Display Density / Reader settings / Reader help

There is no reason for the bottom gear to exist. It adds no functionality that could not easily be rolled into the top gear. It takes up space on the screen; it creates visual clutter. And it sows confusion, because it doesn’t function identically to the top gear.

There is no reason for “Density Display” to be where it is in the interface. It belongs in the tabbed settings menu, with every other Reader setting. There’s even an “Experiments” tab, in case the excuse for not including in the menu is that it isn’t read for prime time. If it deserves to be directly accessible from a drop-down, why isn’t it on the top gear, too?

Steve Jobs would have called this a piece of shit, yelled at whoever was responsible, and refused to let it out of the door. For a company that truly cares about user experience, the first two are optional: the third is not. Google has no shortage of brilliance, but it remains acutely shorthanded on people who sweat the details. Like so many far-sighted people, it has trouble seeing what’s right in front of its face.

GBS: Related Cases

While we wait to see the class certification motion due today in the principal Google Books case, I thought I’d take a moment to check in on the other litigation burbling around it.

In the visual artists’ case against Google, American Society of Media Photographers v. Google, Google started the machinery to move to dismiss the case on procedural grounds: that neither the individual artists nor their associations were proper plaintiffs with standing to sue. The plaintiffs asked for and were given a chance to amend their complaint, and they filed the revised version a few weeks ago. Judge Chin then put them on the same schedule as the main case: Google’s motion to dismiss is due on December 23, with responses and replies in the new year.

Meanwhile, in the case against Google’s library partners, Authors Guild v. HathiTrust, the National Federation for the Blind made a surprise motion to intervene as a defendant, along with two visually disabled college students and a visually disabled professor. They argued that the scans can and will be used by the libraries to make their books more accessible to the blind, and that this is an interest the libraries themselves won’t necessarily defend adequately. Copyright scholar Peter Jaszi is one of the lawyers on the brief. That motion was filed today, so there hasn’t been much reaction to it yet.

We’ve uploaded all of the relevant documents to The Public Index as usual, and we’ve broken out separate pages for the visual artists’ and HathiTrust suits.

Mea Culpa

In my recent The Elephantine Google Book Settlement, I wrote:

In 2004, Google announced partnerships with major academic libraries to digitize the books in their collections. … At first, the project included only books in the public domain, but it soon expanded to include books under copyright as well.

I have said similar things on many occasions. They reflected my understanding of the Google Books program. Unfortunately, it appears my understanding was wrong. The initial announcement of the program included both public-domain and copyrighted books from the start:

Clicking on a title delivers a Google Print page where users can browse the full text of public domain works and brief excerpts and/or bibliographic data of copyrighted material. Library content will be displayed in keeping with copyright law.

I am not entirely sure where this misconception came from. One possibility is that I misread Google’s timeline of the project. Its partnership with Oxford, which is listed first, was indeed public-domain only. But that partnership wasn’t announced until a few days after the overall project was, and, almost simultaneously, the University of Michigan announced that it would provide books in copyright.

I apologize for the mistake, and particularly for repeating it for so long.

Bad News from Berkeley

I hardly know where to start with U.C. Berkeley’s new campus policy on Course Note-Taking and Materials. Perhaps with “Why We Have This Policy”:

The Course Note-Taking and Materials policy is intended to (1) protect instructors’ copyrights and the integrity of their intellectual property in the context of twenty-first century learning, commercial, regulatory, and technological environments; (2) restrict commercial note-taking services to those authorized by the campus; and (3) hold members of the campus community and commercial vendors responsible for complying with the policy.

I would have thought that the most important goals of a policy on course notes would be to facilitate good teaching and effective learning. And then, in that context, perhaps copyright might come up as a way to encourage professors to develop good course materials, or to help enforce the policy. But no. The copyrights come first, and the pedagogy not at all. It appears that the university cares more about the “integrity of [professors’] intellectual property” than about academic integrity.

The actual substantive policy is about what you would expect, given this framing. Students may not share notes with anyone except their classmates without the instructor’s permission. They may not record a class without the instructor’s written permission. And commercial uses of course notes are strictly prohibited.

There are reasonable enough principles behind these rules. Indeed, there are strong legal reasons, as well: California state law prohibits the sale of course recordings and course notes without the university’s permission. But the absoluteness of the actual policy is chilling. There is no recognition that fair use and other legal doctrines will sometimes give students every legal right to take notes and share them.

Worse, there’s no consideration of the moral principles that ought to limit these limits on course notes. Here’s what the policy has to say for itself about the educational process:

The University of California, Berkeley encourages students to take notes in class and other instructional settings as part of their education. Note-taking is a means of recording information and helps students absorb and integrate what they learn. Note-taking or other recording of an instructor’s presentation can also facilitate further discussion of the material with students and the instructor.

What a sadly impoverished view of the mission of the university this is! What happened to creating an academic community whose members debate matters of truth, beauty, and justice outside the classroom as well as inside? What happened to the transmission of knowledge through society? And what happened to creating a well-informed citizenry whose engagement with learning makes them effective participants in our democracy? These are the kinds of values that are served by the flow of wisdom, and they are values that Berkeley’s new policy simply ignores.

This is not to say that course materials are fair game for free reuse by anyone, or that course notes must always flow freely. Far from it. As a casebook author, I know from personal experience just how much work goes into making useful course materials. An outline bank in the hands of an exclusive student group can become a tool of inequality. And recording a class — especially in secret — can be terribly disruptive to what is supposed to be a safe and welcoming space for discussion.

These are not the concerns at work in Berkeley’s new course notes policy. It is driven by intellectual property, pure and simple. Berkeley could perhaps give an account of itself that provides academically responsible justifications for its rules. But this it has not done. Consider the responsibilities of individual faculty members:

  • Accept responsibility for knowing, disseminating, and following this policy and its procedures.
  • Take appropriate steps to protect their intellectual property rights.

I would have thought that a teacher’s first duty would be to set an appropriate policy on class notes for her class in light of her learning objectives. Instead, it’s her job to tell students about the dire consequences of sharing what they’ve learned with others. And the language of that second bullet is unfortunate: it verges on telling professors they’re doing something actionable if they don’t copyright their lectures to the hilt.

And then there is this:

Policy Issued: November 21, 2011
Effective Date: September 1, 2011

There’s nothing like a little retroactive lawmaking to set a good example for students.

The policy is accompanied by an educational site for instructors. It is both better and worse than the policy itself. On the “better” side of the ledger, it has a clear and straightforward explanation of Creative Commons licenses. On the “worse” side, there is this suggested text to share with students:

You are a member of an academic community at one of the world’s leading research universities. Universities like Berkeley create knowledge that has a lasting impact in the world of ideas and on the lives of others; such knowledge can come from an undergraduate paper as well as the lab of an internationally known professor. One of the most important values of an academic community is the balance between the free flow of ideas and the respect for the intellectual property of others. Researchers don’t use one another’s research without permission; scholars and students always use proper citations in papers; professors may not circulate or publish student papers without the writer’s permission; and students may not circulate or post materials (handouts, exams, syllabi—any class materials) from their classes without the written permission of the instructor.

The paean to research is admirable, if slightly misplaced: the university is as much about the dissemination of knowledge as its creation, and it is the former that the policy concerns itself with. And even the “balance” metaphor is reasonable enough: peer review, for example, acts as a serious but eminently justifiable check on the “free flow of ideas.” But then there is the conflation of the norms of academic integrity with the law of intellectual property, and the utter confusion that follows. This is not how one teaches students to understand either the norms or the law: they will leave Berkeley with a muddled sense of both.

This is not a large issue, in the scheme of things. Berkeley’s educational mission is under far more threat from California’s budget crunch than from the course-notes policy. Indeed, this is a university that has wrestled with much larger issues of academic freedom. But this ought to have been an easy case, one in which adverting to academic principles was both obvious and obviously right. Their absence is telling. A university that cannot articulate its basic values is a university in trouble.

The Elephantine Google Books Settlement

The latest issue of the Journal of the Copyright Society of the USA is out, and that means that so is my most recent paper, The Elephantine Google Books Settlement. (You may have seen a much earlier version with a different journal’s name attached; the publication process has been long and twisty.) It’s an attempt to boil down the settlement into a single clear concept that makes sense of the whole thing: the settlement used an opt-out class action to bind copyright owners (including the owners of orphan works) to future uses of their books by a single defendant. This is not a piece of close legal analysis; instead, it’s an attempt at a big picture view of the legal issues raised by the settlement.

Here’s the abstract:

The genius - some would say the evil genius - of the proposed Google Books settlement was the way it fuses legal categories. The settlement raised important class action, copyright, and antitrust issues, among others. But just as an elephant is not merely a trunk plus legs plus a tail, the settlement was more than the sum of the individual issues it raised. These “issues” were really just different ways of describing a single, overriding issue of law and policy - a new way to concentrate an intellectual property industry.

In this essay, I argue for the critical importance of seeing the settlement all at once, rather than as a list of independent legal issues. After a brief overview of the settlement and its history (Part I), I describe some of the more significant issues raised by objectors to the settlement, focusing on the trio of class action, copyright, and antitrust law (Part II). The settlement’s proponents responded with colorable defenses to every one of these objections. My point in this Part is not to enter these important debates on one side or the other, but rather to show that the hunt to characterize the settlement has ranged far and wide across the legal landscape.

Truly pinning down the settlement, however, requires tracing the connections between these different legal areas. I argue (Part III) that the central truth of the settlement is that it used an opt-out class action to bind copyright owners (including the owners of orphan works) to future uses of their books by a single defendant. This statement fuses class action, copyright, and antitrust concerns, as well as a few others. It shows that the settlement was, at heart, a vast concentration of power in Google’s hands, for good or for ill. The settlement was a classcopytrustliphant, and we must strive to see it all at once, in its entirety, in all its majestic and terrifying glory.

Also of note in this issue is Jake Linford’s interesting article on the right of first publication in the Internet age. He argues that the long-standing right of a copyright owner to decide when and how a work is first published should be interpreted to also provide a similar right to decide when and how a work is first digitally published. It’s a clever analysis that helps make sense out of Google Books and other Internet copyright debates. I had an enjoyable debate with Jake about the paper when he blogged about it in March.