The Laboratorium
October 2012

C.E. Petit on the HathiTrust Decision


C.E. Petit of Scrivener’s Error has just finished a series of blog posts on the HathiTrust opinion, and rolled them up into a single essay on the case and its implications. Although I disagree with Petit’s theories of precedent and of fair use, the essay is well worth reading for anyone with a serious interest in book digitization litigation.

Aereo Brief


I signed on to an amicus brief in the Aereo case. It’s a very narrow brief; it doesn’t address the specific doctrinal issues around the public performance right. Instead, it responds to a very odd argument raised by former Register of Copyrights Ralph Oman in an amicus brief of his own. Drawing on language in the dissent from the Sony case, he had argued that:

Whenever possible, when the law is ambiguous or silent on the issue at bar, the courts should let those who want to market new technologies carry the burden of persuasion that a new exception to the broad rights enacted by Congress should be established.

In the brief, I and my dozens of cosigners respond that this is exactly the opposite of what the Supreme Court held. As the Court explained:

The judiciary’s reluctance to expand the protections afforded by the copyright without explicit legislative guidance is a recurring theme. Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology.

We flesh out this point, showing that the overwhelming weight of judicial precedent and scholarly opinion uniformly hold that the courts should interpret the Copyright Act as Congress wrote it, without introducing an artificial and misguided presumption against new technologies. Temple’s David Post wrote the brief and did a terrific job of making this simple point clearly and forcefully.

In re Books Webcast


I’m very much looking forward to In re Books tomorrow. We have a truly inspiring list of speakers and an action-packed program. As promised, the conference will be webcast. We’re breaking the stream up into three segments:

You will ned Silverlight to watch live; after the conference we will chop the video up into panels and archive it in downloadable versions.

Everything Old Is New Again, Even the Ads


By 1905, when the appeals court in Aachen heard the beggar’s appeal, the status quo was still a muddle. Such indeterminacy was unusual for Schmitz, whose earlier rulings suggested a man who dealt in absolutes. Just months before, he had elected to overturn a fine for a local bureaucrat who, despite having betrayed “the spirit” of his office by selling citizens’ addresses to third-party advertisers, had not literally violated the legal code.

Steven Michael Press, To Govern or Not to Govern: Prussia and Neutral Moresnet, page 8

A Reminder About the Comment Policy


The heavy (by Laboratorium standards) volume of commenting in the last week makes this a good time to review the comment policy. Both “Civility” and “Topicality” have been under strain. If necessary, I will delete comments that are not sincere and polite responses to the post or to someone else’s comment. I do not want to have to ask people to leave, so please help bring the conversation back to a healthier place.

The Gordian Network


The mere offering of a varied schedule of programs does not satisfy the right to hear if the programs of restricted appeal occupy time slots that give interested persons little or no opportunity to enjoy them. To be truly effective, therefore, the FCC might have to review not only the overall assortment of a station’s programing, but also the hours and potential audiences available for these programs. … In addition, the networks often place their one regular prime-time public affairs program, such as CBS’s 60 Minutes or NBC’s First Tuesday, at the same day and hour. Insofar as these practices reduce audience size and viewer opportunity, the FCC might choose to consider them improper and inimical to the listeners’ constitutional right to hear.

Geoffrey L. Thomas, The Listener’s Right to Hear in Broadcasting, 22 Stan. L. Rev. 863, 887 (1970). If the concern now sounds quaint, it’s because conditions of abundance solve high-stakes decisions by taking away the need to choose. It’s also because we now take time-shifting so much for granted that it is effectively invisible.

HathiTrust: A Landmark Copyright Ruling


My PW blog post on the HathiTrust ruling is up: HathiTrust: A Landmark Copyright Ruling. Some highlights:

The Authors Guild’s lawsuit against Google over book scanning is grinding on into its eighth year. After a settlement, an amended settlement, a rejection of the settlement, and a protracted procedural fight over certifying the case as a class action, it has made almost no substantive progress in front of Judge Chin. Meanwhile, the Authors Guild’s lawsuit against Google’s HathiTrust library partners has produced a definitive ruling from Judge Baer in little more than a year. What started as a sideshow has become the main event. …

Also notable about the decision is what was missing from it: orphan books. None of its conclusions about harm to book sales depend on whether the books are orphan or owned, in or out of print. It does refer to the inordinate expense of negotiating permissions for millions of books and drops an aside that it is “a tenuous assumption to say the least” that all copyright owners could be found. But this is a point about books overall, not about any specific book: the point is that there are orphan books in the collection, not that all or even most of the books in the collection are orphans. The opinion applies equally to all books.

HathiTrust Wins


Judge Baer issued his decision in the HathiTrust case, and it’s a near-complete victory for HathiTrust and its print-disabled codefendants. The opinion doesn’t even make it seem like a close case. On every substantive copyright issue, HathiTrust won:

  • Section 108 on library privileges doesn’t limit the scope of fair use.
  • A search index and access for the print-disabled are both fair uses.
  • Search indexing is a transformative use.
  • The libraries aren’t making commercial uses, even though they partnered with Google to get the scans.
  • The plaintiffs haven’t proven that HathiTrust is creating any security risks.
  • There is no market for scanning and print-disabled access, nor is one likely to develop.
  • UM is required under the ADA to provide equal access to the print-disabled, and is allowed to under Section 121 of the Copyright Act.

Judge Baer did find that some of the associations had standing to represent their members, but in the context of the fair-use victory he handed to HathiTrust, this is bad news for the plaintiffs, not good news. I’m not sure what the plaintiffs’ next move is. An appeal is possible: it would go to the Second Circuit, where the Google class-certification appeal is pending. But this opinion makes the case seem so lopsided that it makes the appeal into an uphill battle. Perhaps together with the AAP settlement, this is a moment for a reevaluation of the Authors Guild’s suit against Google. My estimate of the likelihood of settlement just went up substantially.

Also, this opinion together with the Georgia State e-reserve opinion and the UCLA streaming-video opinion strike me as a real trend—universities making internal technological uses of copyrighted works are doing quite well in court of late. Something significant in judicial attitudes towards copyright, computers, and education has clicked into place of late.

Imaginary Bruce Willis


My first post for Publishers Weekly is live at PWxyz. Meet Imaginary Bruce Willis. Some excerpts:

Last month, the Sunday Times of London reported that Bruce Willis was planning to sue Apple. The actor, the newspaper explained, was furious that iTunes’s terms of service would keep him from leaving his music collection to his daughters when he died. The story was soon revealed to be somewhere between fantasy and fabrication. But even before a five-word tweet from his Willis’ wife (“it’s not a true story”) definitively refuted the article’s claims, the news had gone viral, spreading far beyond the usual haunts of fatuous celebrity journalism. Something in the rage of Imaginary Bruce Willis had touched a nerve. …

Radin’s point is that ownership matters. It matter for human reasons, for humane reasons. When your houseguests browse your bookshelves, that, too, is socializing, along with the cocktails and conversation. Making a mixtape is an intimate act. Having a thing sitting in your home, a heavy inconvenient thing made of dead trees or polymerized petrochemicals, is a kind of exclusion: it ensures that no one can take that piece of art away. But it is also offers a kind of inclusion: to lend a book is to invite a friend to the delights it contains.

Paddy Roy Bates, Pirate Broadcaster and Prince, 1921-2012


Paddy Roy Bates, a 1960s pirate radio entrepreneur who set up his own nation on an abandoned platform in the North Sea and tenaciously held on to it for more than forty years, passed away yesterday after long illness with Alzheimer’s. Prince Roy, as he titled himself when he founded the Principality of Sealand in 1967, combined swashbuckling derring-do with a healthy disrespect for the niceties of the law. A man of many contradictions, he defined himself for decades by his stubborn refusal to submit to British jurisdiction but remained a staunch British patriot proud of his service of World War II.

Bates was a teller of tales and a leader of men. Among his many deeds, he:

  • Founded an offshore pirate radio station, Radio Essex.
  • Outwitted the British government on multiple occasions until it finally left him alone on Sealand.
  • Defeated a coup by Sealand’s Minister of Foreign Affairs at shotgun-point.
  • Partnered with American entrepreneurs to create the ill-fated data haven HavenCo.

In the words of David Sinclair, one of his Radio Essex employees:

Roy was a throwback. He should have been born in the time of the first Queen Elizabeth and sailed with Drake. If ever there was a true buccaneer, it was Roy. A tall, burly man, with a ruddy face and the kind of high, hectoring voice which afflicted so many of his generation who had been to private schools. He had been at one time, the youngest Major in the British Army, and he ran his household and his business along more or less, army lines. In addition, as I was to find out later, he was the kind of man who had creditors everywhere, but it never seemed to bother him.

Bates is survived by his wife Princess Joan, his children Penny and Prince Michael, and multiple grandchildren. The official Sealand obituary is here and my article about Roy and Sealand, Sealand, HavenCo, and the Rule of Law, is available here.

I’m Joining Publishers Weekly


I’m very happy to announce some news that’s been in the pipeline for a while and has now come to fruition. I’m joining Publishers Weekly as a Contributing Editor for Legal Affairs. I’m keeping my day job, but I’ll also be writing regularly about copyright and the future of media for the PWxyz blog, with occasional pieces in the magazine. As I say in the press release:

We’re living through the biggest shift in publishing since the invention of printing, and the biggest shift in copyright since the invention of copyright. The law is going to play a huge role in how we manage the transition, and I’m looking forward to exploring the terrain where law, technology, culture and business meet.

My first post, starring Imaginary Bruce Willis, will be going up soon, so stay tuned …

Joanne Zack, Attorney for Authors and Many Others


Joanne Zack, a founding partner of the Boni & Zack law firm and a veteran litigator, passed away recently. She represented the Authors Guild in its seven-year copyright suit against Google for digitizing millions of books. Most recently, she was successful in having the case certified as a class action.

The Google Books lawsuit was hardly Ms. Zack’s only contribution to shaping the future of digital publishing. She also played major roles in the long-running litigation over freelance authors’ articles in electronic databases and in the Random House v. Rosetta Books case, an early landmark pitting authors against their print publishers for ownership of electronic rights. In addition to her copyright work, she also handled complex antitrust, securities, and class-action cases during her three decades at the bar.

A cum laude graduate of Carleton College and of the New York University Law School, also cum laude, Ms. Zack clerked for federal judge Charles Brieant of the Southern District of New York. Known as a forceful advocate for her clients, she had an organized and direct speaking style. Her passing was noted with sadness by those familiar with her work.

Google and Publishers Settle; Authors Soldier On


Google and the five publishers who sued it in 2005 over Google Books have settled their lawsuit. Under the agreement:

US publishers can choose to make available or choose to remove their books and journals digitized by Google for its Library Project. Those deciding not to remove their works will have the option to receive a digital copy for their use.

Apart from the settlement, US publishers can continue to make individual agreements with Google for use of their other digitally-scanned works.

Since Google has already been offering an opt-out for publishers who identify and claim their books, and since Google already works with publishers to sell their books through Google Play, the settlement does not change the situation on the ground in any significant way. In the last few years, Google and the publishers have made their peace; this is just the treaty-signing ceremony. The publishers have embraced the digital transition in books; Google is now a player and partner in that ecosystem, rather than a dangerous disruptive presence. The other terms of the settlement—such as whether any money is changing hands as part of it—are confidential.

I’ve been saying as much to reporters all day, but Andrew Albanese at Publishers Weekly did pick up a detail that wasn’t clear from the press release:

In addition, under the details released, publishers deciding to have their scanned works included in the Google database can opt to receive a digital copy for their use. Google director of strategic partnerships Tom Turvey told PW that publishers will own the scans provided to them by Google, and will have “broad” rights to commercialize them or make them available in other search engines.

That last sentence is significant, because it means that the scans may have lives outside of Google Books and Google Play. I would be very curious to know what, if any, the limits on those “broad” rights are, and how those limits compare to the limits placed on Google’s library partners’ use of their own digital copies. Those latter copies are the subject of the ongoing HathiTrust lawsuit, so the presence of similar digital copies in publishers’ hands is an interesting complication.

Meanwhile, the Authors Guild’s lawsuit against Google continues. Not that it’s going anywhere soon, given that the Second Circuit is currently spinning up to hear Google’s appeal of class certification, but still it continues. The publishers had been hinting for over a year that they were ready to settle with Google; they stood back while the authors pressed the suit. Now it’s official.

If you’re curious what all of this means, come join us at In re Books on October 26 and 27 to talk about law and the future of books.