Law Librarian Blog

ARL Describes Preferred Licensing Terms for Academic e-Books

The Association of Research Libraries (ARL) has published an article called E-Book Licensing and Research Libraries—Negotiating Principles and Price in an Emerging Market in Research Library Issues Number 280 (September 2012).  It describes the negotiated terms between the Association’s agent, LYRASIS and the content available through the University Press Content Consortium (UPCC) Book Collections on Project MUSE.  The article describes some of the key terms in the negotiated agreements.  They include:

• No DRM
• Perpetual use, archiving, and authorized uses under the copyright laws
• ADA compliance in software and hardware requirements
• Device neutrality
• The ability to download and share content within the academic community
• Use of the material for course reserve, whether in paper or electronic form
• Interlibrary loan of the material
• The ability to analyze the material via word search or other electronic indexing

 All in all, the terms as described in detail seem to favor academics and academic libraries.  I guess university presses are not nearly as paranoid about their content as commercial publishers seem to be.  [MG]

DOJ Files New Details In Apple e-Book Case

The Justice Department filed multiple documents on Tuesday in the Apple e-book case.  The most interesting of these are the Plaintiffs’ Proposed Findings of Fact and Conclusions of Law and Plaintiffs' Pretrial Memorandum of Law.  The documents are dated April 26, 2013 on the Department’s web site but were made public yesterday.  The lengthy documents describe the back and forth between Apple and the publishers where Apple acted as a conduit for information between each publisher in addition to the direct contacts the publishers made with each other over how to manage e-book pricing in the market.  It’s pretty substantial stuff.  Here’s an example from the Proposed Finding of Facts:

54. Publisher Defendants communicated to one another their plans to window specific titles, which they believed would pressure Amazon to raise its retail e-book prices. For example, in an August 14, 2009 e-mail to Hachette Livre CEO Arnaud Nourry, Hachette Book Group CEO David Young writes: “Completely confidentially, [Simon & Schuster CEO] Carolyn [Reidy] has told me that they are delaying the new Stephen King, with his full support, but will not be announcing this until after Labor Day . . . .” PX-0274.

55. In the same e-mail, Mr. Young criticized Random House CEO Markus Dohle as an “appeaser” for his refusal to window Dan Brown’s The Lost Symbol: “You should know that I have been told by a reliable source that the [internal Random House] publishers voted for the Dan Brown to be delayed but they were over-ruled by Markus who is apparently ‘obsessed’ by his desire to meet Jeff Bezos: why this should matter to him and what he thinks he would gain from such a meeting is beyond me. He appears to be an appeaser which is not good with them being the market leader. . . .” Id. Mr. Young’s “reliable source” was a senior Random House executive who subsequently joined Macmillan in the fall of 2009.

56. Mr. Young concluded this e-mail containing confidential information about Hachette’s competitors’ business plans by advising Mr. Nourry that he should permanently destroy the message: “I think it would be prudent for you to double delete this from your email files when you return to your office.” Id.

The document would be a good basis for a book or a movie.  The publishers were pretty open with each other about their antipathy to Amazon and its pricing practices.  They tried various strategies such as windowing titles to get Amazon to raise its prices, but mostly failed.  Apple came along and expressed a desire to not compete on price (Proposed Finding of Facts par. 107) with Apple pushing the agency model as a way to accomplish everyone’s goals.  It’s not merely a quote from Steve Jobs’ biography at issue here. 

These are interesting documents chock full of direct quotes from emails and depositions.  I’m sure Apple’s attorneys are smart enough to create a context that challenges the inferences from the filings.  One lesson stands out, and it’s an old one:  if one’s conduct is going to be legally questioned, one should try and minimize the documentation for that conduct.  Redundant back-up systems for email and other corporate documents sometimes may be our friend and sometimes be our enemy.  There’s a lot of electronic evidence in this case.  I hope we might see more of the documents at issue than merely those quoted by the Justice Department.  [MG]

Microsoft To Buy Nook Business From B&N?

Various reports out on the web tell that Microsoft is about to buy the Nook tablet from Barnes & Noble and other investors for about $1 billion.  The Nook is an Android-based tablet/reader and has not been considered a particularly successful product.  paidContent pegs its market share at 25% compared to the Kindle.  Microsoft invested about $600 million in the device last spring.  Most recent news was that Barnes & Noble was adding the Google Play store and other Google services to the tablet.  That raised a few eyebrows given Microsoft’s investment.  I can imagine this probably pushed Microsoft into action, not so much to protect its investment as much as to ultimately fulfill its purpose.  That would be to acquire a bookstore and customer base for its Surface tablet ecosystem. 

Windows 8, whatever one thinks of it on a tablet or PC, does not have an app store that is ready to compete with the other big players.  E-Books are popular and much underrepresented from a Microsoft source where the company makes money from a sale.  This transaction makes sense for Microsoft as it picks up a customer base for content.  I don’t know about consumers who bought a Nook.  I would think this is going to be dead tablet walking as I can’t imagine Microsoft supporting Android in any form in the long run.  If Amazon is smart it would immediately offer a Kindle for Nook promotion in one form or another to pick off part of the Nook customer base.  And if Microsoft is smart, it would do the same with the Surface.  From what I understand, there are a ton of the Surface RT product still sitting in warehouses. 

Publishers might be happy there is another deep-pocketed challenger to Amazon (and Apple).  I wouldn’t rejoice myself.  Publishers and authors are still at the mercy of large technology companies as exclusive distributors of their product.  I’d be more concerned about that down the line.  [MG]

"Do we need a new Blackstone? Do we need new writers of grand treatises like Story and Williston?"

The Michigan Law Review's annual book review issue is now online. See Dick Danner's foreword for the issue, Oh, The Treatise! (PDF). Two excerpts from his essay's conclusion:

Today’s lawyers have ready access not only to cases and other forms of legal authority, but also to masses of other information, legal and law-related, generated each day and competing for their attention. Is not the lawyer’s need for context and structure more urgent now than when the first great treatises were written and commentators were worried about how quickly the courts had generated the first few hundred published volumes of American reports?

...

Twenty-first-century Blackstones will be technologically literate legal scholars who understand the relationships between form, content, and structure, and who possess the skills to present legal information in innovative ways appropriate to the formats in which information is now published, identified, and delivered.

Highly recommended. [JH]

Scott Turow Responds To The Kurtsaeng Case And More

Scott Turow, author and president of the Authors Guild, wrote an op ed piece on the Kurtsaeng case in the New York Times last Sunday.  Naturally, he’s appalled at the outcome, though that is really a minor part of his complaints.  The bulk of the piece rails against Google, technology, piracy, and even libraries.  I recommend the piece by Mike Masnick in Techdirt that takes Turow’s arguments apart paragraph by paragraph.  I’ll only add a few thoughts here. 

Turow says about libraries: 

Even libraries and authors, usually allies, have grown less cozy. No one calls our public library system socialistic, though it involves free distribution of the goods authors produce, and even though in many Western nations, authors get a tiny fee when libraries lend their works. Authors happily accept our system, because libraries have nurtured them as writers and readers. 

Now many public libraries want to lend e-books, not simply to patrons who come in to download, but to anybody with a reading device, a library card and an Internet connection. In this new reality, the only incentive to buy, rather than borrow, an e-book is the fact that the lent copy vanishes after a couple of weeks. As a result, many publishers currently refuse to sell e-books to public libraries. 

Scott, did you consider for a moment that even when a publisher does “sell” e-books to libraries that it does so at exceptionally high prices and terms, along with harsh digital rights management that hamstring the distribution and end use of the copy?  Why, I’d almost think you despair at the fact that library lending can’t be further restricted and monetized somehow. 

And then there are the pirates, aided and abetted by the major search engines: 

The pirates would be a limited menace were it not for search engines that point users to these rogue sites with no fear of legal consequence, thanks to a provision inserted into the 1998 copyright laws. A search for “Scott Turow free e-books” brought up 10 pirate sites out of the first 10 results on Yahoo, 8 of 8 on Bing and 6 of 10 on Google, with paid ads decorating the margins of all three pages. 

1998 you say?  And 15 years later Congress still hasn’t corrected this situation?  I’d almost get the impression that the pirates have a better lobbying effort than the Guild. 

Google, which seems to have the better track record on pirate links get its hits.  First there is the Google book scanning project in which the Guild soldiers on as a litigant, even when the publisher plaintiffs and others have settled.  Then there is the HathiTrust, an outgrowth of the scanning project, which was forced to suspend its orphan works program because it had trouble identifying authors and titles.  None of that, however, changes the underlying and more important fact that the District Court in the HathiTrust case found the wholesale scanning of library collections to produce an electronic index is fair use.  The Courts are just not cooperating. 

There are multiple points of view on how Internet availability of books, legal and otherwise, affects how authors exploit their works.  Author Neil Gaiman said this: 

You're not losing sales by getting stuff out there. When I do a big talk now on these kinds of subjects and people ask "What about the sales you are losing by having stuff floating out there?" I started asking the audience to raise their hands for one question -- Do you have a favorite author? And they say yes and I say good. What I want is for everybody who discovered their favorite author by being lent a book put up your hand. Then anybody who discovered their favorite author by walking into a book story and buying a book. And it's probably about 5-10%, if that, of the people who discovered their favorite author who is the person they buy everything of and they buy the hardbacks. And they treasure the fact they've got this author. Very few of them bought the book. They were lent it. They were given it. They did not pay for it. That's how they found their favorite author. And that's really all this is; it's people lending books. 

I don’t think that Gaiman is encouraging piracy.  He seems to have accepted it as a component of book discovery which conceivably may increase sales.  Turow says his concern is with the mid-list authors who may lose sales more than an established author.  I can appreciate that concern, though I believe that obscure authors would still be obscure if the Internet had not been created. In fact, I think they would be more obscure.

My opinion is to either change the law or change the business practices.  The latter may be easier as it doesn’t require an act of Congress.  Railing against the various court rulings doesn’t change anything.  Oh, and lay off the libraries if you don’t mind.  We follow the copyright laws even if some Internet sites do not.  [MG]

Out of Ordering Lunch: No Consensus Needed When SCOTUS Justices Place Their Lunch Orders

Retired Supreme Court Associate Justice Sandra Day O'Connor appeared in the March 5, 2013 broadcast of The Daily Show. Here's the video links to Part One and Part Two. No doubt she was invited to promote her new book, Out of Order: Stories from the History of the Supreme Court (Random House, 2013) [Amazon link]. In Looking for SCOTUS controversy? Case revelations? O’Connor book sticks to facts of court history, Debra Cassens Weiss recaps reviews published in the New York Times and Christian Science Monitor. [JH]

Book Review: The Naked Constitution by Adam Freedman

Adam Freedman’s book, The Naked Constitution – What the Founders Said and Why It Still Matters, is a statement that the Constitution is the law; that it should be followed in letter and spirit; and interpretation of passages that are ambiguous should be determined by the meaning the words had to the people who ratified it.  It’s an easy enough premise and one that is promoted by any number of scholars, jurists, and even average citizens.  The problem, as Freedman demonstrates, is that it didn’t turn out that way.  He spends a large portion of the book explaining how we’ve strayed—judicially and socially—from the meaning of the Constitution’s text.

The problem is that over the course of 200 plus years constitutional doctrine has evolved in a backdrop of political and judicial agendas.  Take for example administrative agencies.  One example in the book concerns the case Humphrey’s Executor v. United States (1935).  President Franklin Roosevelt fired Humphrey, a Commissioner of the Federal Trade Commission.  He conveniently died some four months after the event and his executor sued for four months of wages he would have earned.  As Freedman notes, the case turned on the power of the President to fire Humphrey.  The Supreme Court held 9-0 that the Federal Trade Act was constitutional and that the quasi-executive/judicial structure of the FTC was beyond the power of the President.  Welcome the unelected bureaucrat to the governance of the nation.

The obvious question is where in the Constitution does power flow to unelected officials to create rules and prosecute violations of those rules independent of the courts and the President?  As Freedman explains, the Supreme Court at the time was hostile to Roosevelt and the New Deal, suggesting that as the basis of the decision rather than fealty to the Constitution.  I guess this is an example of be careful what you ask for.  The federal bureaucracy has grown exponentially long after the members of that Court joined Humphrey in the great beyond.  The online version of the Government Manual is a testament to that growth.

The contradictions between the text of the Constitution and the judicial decisions interpreting it are everywhere in the book.  Penumbras?  Where did those come from?  Cruel and unusual punishment has strayed an awful lot from what was common in 1789.  Any number of frivolous prisoner lawsuits demonstrates that.  Free speech is not free when someone is sued to protest abortion rights and limited to specific locations and times to convey the message while at the same time “politically correct” speech is protected by the courts.  These are simply several examples of many in the book.

I don’t necessarily agree with Freedman’s arguments nor am I convinced by all of his examples.  He vilifies the concept of “Living Constitution” and uses some of the more egregious attempts to extend the Constitution beyond reasonable meaning.  Lawsuits over getting a bad grade or PETA’s failed attempts to sue Sea World under a 13^th Amendment argument to free the whales from slavery are examples.   The more absurd comments to come out of liberal constitutional scholars are others. 

From my perspective there is a whole world in between.  Men and women from different political persuasions at different times were appointed or elected to make decisions about the Constitution.  Some of these turned out better than others.  We are more or less stuck with these decisions based on how our system operates.  I doubt seriously that even an overwhelmingly conservative Supreme Court would throw out the federal bureaucracy at this point based on originalist thinking.

Freedman, to his credit, recognizes this and suggests the solution is a constitutional convention.  There’s no going back at this point so we might as well start over.  He argues for including a “human life amendment” to prevent future Roe v. Wade’s.  I’m not sure it would be that easy as there will be just as many people arguing for text that guarantees a right to abortion.  How it turns out would be a political decision, if such a convention were held.  I don’t think holding such a convention is a bad idea but I’m not holding my breath for one.

The book is 353 pages with an index and selected bibliography for each of the chapters.  It is published by Broadside Books which is an imprint of HarperCollins.  According to FTC regulations, if not by ethics alone, I am obligated to tell you that HarperCollins supplied a copy of the book for review.  There you go, Adam.  [MG]

Macmillan Settles With DOJ In e-Book Price Case

And then there was...Apple.  The company is the only defendant left in the e-book alleged price-fixing case now that Macmillan has settled.  Here are details from the Department of Justice Press Release:

Under the proposed settlement agreement, Macmillan will immediately lift restrictions it has imposed on discounting and other promotions by e-book retailers and will be prohibited until December 2014 from entering into new agreements with similar restrictions.  The proposed settlement agreement also will impose a strong antitrust compliance program on Macmillan, including requirements that it provide advance notification to the department of any e-book ventures it plans to undertake jointly with other publishers and regularly report to the department on any communications it has with other publishers.  Also for five years, Macmillan will be forbidden from agreeing to any kind of most favored nation (MFN) provision that could undermine the effectiveness of the settlement.

Documents relating to the settlement are here. paidContent points out that the settlement is slightly different than the others in that retailers will be allowed to immediately discount Macmillan e-books as relief for consumers.  The settlement was motivated by the risk of a judgment against the company according to Macmillan CEO John Sargent.  The District Court has to approve the settlement before it goes into effect.  [MG]

Why Not Offer Digital And Hard Copy Books In A Single Sale?

One of the more interesting ideas that publishers could consider comes from Michael Clarke at the Scholarly Kitchen.  The article is called What Can Publishers Learn from Indie Rock?  The article compares the sale of vinyl albums (a growing niche, but a niche nonetheless) and hardcover books.  Many indie bands provide digital download links with the sale of a vinyl edition of an album.  Clarke proposes that hardcover book sales could work similarly by offering a digital copy of the book as part of the sale.  A variation of that would be to offer a combined hard/digital copy for a combined lower prince.  We’ve seen this same marketing technique with DVDs where a movie is sold with the rights to a digital copy for a limited time after the sale.  Clarke also proposes that the digital copy of the book be DRM free.  I seriously doubt that publishers would go for that.  It’s an interesting idea though, and it might even spur sales of physical books. 

There may be other marketing possibilities such as making the digital copy available if the hardcover was purchased at a physical bookstore.  Publishers have expressed anxiety over Amazon’s dominance of the book market in one form or another to the detriment of brick and mortar retailers.  I’m not suggesting publishers cut Amazon out of the equation, but some form of marketing may make local retailers more attractive to buyers.

The article is interesting to me for another reason as it highlights the “legendary” Reckless Records as an inspiration for music discovery through knowledgeable staff.  I’ve mentioned Reckless occasionally in past posts as a great place to find used music and movies at extremely reasonable prices.  I was at the store earlier this morning and found an Australian DVD released in 1981 of Fischer-Z live.  The cost was a mere $2.99.  I mention this merely because the outcome of the Kirtsaeng case awaiting decision by the Supreme Court may subject Reckless to liability for copyright violation by offering for sale a foreign-made used copy of a work in the second-hand market.  More on that here.  [MG]

Professor Big Brother Is Watching

There is a story in the Chronicle of Higher Education highlighting the metrics available to a faculty member who assigns an e-textbook for the course:

When students use print textbooks, professors can’t track their reading. But as learning shifts online, everything students do in digital spaces can be monitored, including the intimate details of their reading habits.

Those details are what will make the new CourseSmart service tick. Say a student uses an introductory psychology e-textbook. The book will be integrated into the college’s course-management system. It will track students’ behavior: how much time they spend reading, how many pages they view, and how many notes and highlights they make. That data will get crunched into an engagement score for each student.

The feature is ostensibly marketed as something good.  Faculty can reach out to students who show low engagement and counsel them for success.  How about some of the other possible uses for the capability?  The same information may be useful to authors and publishers in analyzing how their text is used by students.  Some of the data may also be used by school administrators to evaluate faculty performance through that same level of student engagement.  My point is really that when a pool of information is collected, there can be many uses beyond that intended.  In any event, it’s another example of what was previously not measurable becoming extremely measurable.  I can see it now:  Hey, lets do a study comparing student performance across racial and ethnic groups.  I know there are laws that protect student information and also regulate studies using human subjects.  I have a feeling that helping students to succeed will be the least of the interesting uses for this capability.  [MG]

Macmillan Ends Print Dictionaries

Macmillan Education said today that it will no longer publish its dictionaries in print.  It cited the fact that most people get their information from the web via mobile devices.  Rather than decrying the fact, the publisher said the end of print for digital editions was "liberating."  The story is in the Chicago Tribune.  [MG]

Authors Guild Responds To Loss In HathiTrust Case

The Authors Guild isn’t getting the love it would like from the courts these days.  It opposed the settlement between three publishers and the Justice Department in the e-book price fixing case.  The Association of American Publishers settled with Google, effectively leaving the Guild to continue the fight on its own.  Then there was the loss in the HathiTrust case which looks as if it could affect the Guild’s legal position that scanning an entire work is not fair use.  Judge Baer ruled that despite the volume of books used, the online word index created out of the scans was transformative and fell under fair use.  Other than arguing that displaying snippets is out of bounds, Judge Baer’s opinion may give Judge Chin some cover in ruling on the issue. 

I wrote about the Guild’s loss in the HathiTrust case last week.  The Guild’s response came on Friday.  Curiously, there wasn’t much in the statement about fair use other than a generic sentence noting the Guild’s disagreement with every aspect of the ruling.  The bulk of the statement attacks the ruling in the Orphan Works Project where the University of Michigan had planned to make available in-copyright books where the rights holder could not be located.  The University did an admittedly bad job at identifying an orphan work and stopped the program until the standards for identification could be reevaluated.  Judge Baer ruled that since the program is not going forward there was not controversy to address.  The Guild’s reaction: 

“The so-called orphan works program was quickly shown to be a haphazard mess, prompting Michigan to suspend it,” said Paul Aiken, the Guild’s executive director. “But the temptation to find reasons to release these digitized books clearly remains strong, and the university has consistently pledged to reinstate the orphan works program. The court’s decision leaves authors around the world at risk of having their literary works distributed without legal authority or oversight.” 

We’ll be discussing the decision with our colleagues and co-plaintiffs in Europe, Canada, and Australia and expect to announce our next steps shortly. 

I would expect Michigan to come up with tighter standards if they plan to offer the program again.  I wonder, though, if the Guild will be allowed to represent “persons or persons unknown” if the issue goes to litigation for a second time.  I expect the Guild to appeal the most recent decision.  I’ll be interested in their arguments on fair use.  I think that is the more interesting aspect of the litigation.  [MG]

Supreme Court To Hear Case On Applying The First Sale Doctrine To Foreign Goods

One of the more interesting cases the Supreme Court is taking up this term is Kirtsaeng v. John Wiley & Sons, Inc. (11-697).  The case is set for argument on October 29 [Corrected. Original Post said the 22nd].  Here are the questions presented:

This case presents the issue that recently divided this Court, 4-4, in Costco Wholesale Corp. v. Omega, S.A., 131 S. Ct. 565 (2010). Under § 602(a)(1) of the Copyright Act, it is impermissible to import a work "without the authority of the owner" of the copyright. But the first-sale doctrine, codified at § 109(a), allows the owner of a copy "lawfully made under this title" to sell or otherwise dispose of the copy without the copyright owner's permission.

The question presented is how these provisions apply to a copy that was made and legally acquired abroad and then imported into the United States. Can such a foreign-made product never be resold within the United States without the copyright owner's permission, as the Second Circuit held in this case? Can such a foreign-made product sometimes be resold within the United States without permission, but only after the owner approves an earlier sale in this country, as the Ninth Circuit held in Costco? Or can such a product always be resold without permission within the United States, so long as the copyright owner authorized the first sale abroad, as the Third Circuit has indicated?

The case has some implications for libraries that may be purchasing foreign books through third parties, or potentially limiting what a library may do with these books.  There are all kinds of possibilities, practical or otherwise depending on the outcome of the case.  It may seem absurd to suggest a library may not place a de-accessioned book into a sale bin without permission of the publisher, but that could indeed be a result.  Consumers may be affected by this decision as well.

The first sale doctrine certainly applies to items manufactured in the United States, but the decisions by the Ninth, Second, and Third Circuits noted above make this an open question.  The facts in the case before the Supreme Court are best expressed in the Second Circuit’s opinion:

Defendant Supap Kirtsaeng ("defendant" or "Kirtsaeng") moved to the United States from Thailand in 1997 to pursue an undergraduate degree in mathematics at Cornell University. According to Kirtsaeng, he later moved to California to pursue a doctoral degree.

B. The Instant Action

To help subsidize the cost of his education, Kirtsaeng allegedly participated in the following scheme: Between 2007 and September 8, 2008, Kirtsaeng's friends and family shipped him foreign edition textbooks printed abroad by Wiley Asia. In turn, Kirtsaeng sold these textbooks on commercial websites such as eBay.com. Using the revenues generated from the sales, Kirtsaeng would reimburse his family and friends for the costs that they incurred during the process of acquiring and shipping the books and then keep any remaining profits for himself. Kirtsaeng claims that, before selling the textbooks, he sought advice from friends in Thailand and consulted "Google Answers," a website which allows web users to seek research help from other web users, to ensure that he could legally resell the foreign editions in the United States.

The evidence showed that Kirtsaeng had about $1.2 million in PayPal revenues from his textbook business.  I’ll mention somewhat parenthetically that when seeking advice on setting up an import business, Google Answers and advice of friends may not offer the best information or substitute for competent legal advice.  The trial court in Kirtsaeng held that the first sale doctrine did not apply to goods manufactured outside of the United States.  The Second Circuit agreed, holding that the right of foreign manufacturers to control their distribution granted under §602 of the Copyright Act would have no meaning if the first sale doctrine in §109(a) applied.  A summary of the Second Circuit Opinion is in 16 Intell. Prop. L. Bull. 95 (2011).

The Third Circuit said quite the opposite in Sebastian Intern., Inc. v. Consumer Contacts (PTY) Ltd., 847 F. 2d 1093 (1988):

Section 602(a) does not purport to create a right in addition to those conferred by section 106(3), but states that unauthorized importation is an infringement of "the exclusive [section 106(3)] right to distribute copies." Because that exclusive right is specifically limited by the first sale provisions of § 109(a), it necessarily follows that once transfer of ownership has cancelled the distribution right to a copy, the right does not survive so as to be infringed by importation. The preliminary injunction was granted on the basis of an erroneous reading of the law and therefore must be vacated.

The Supreme Court would have answered the question as to whether the first sale doctrine applies to foreign manufactured goods in the Costco case but for the 4-4 split due to Justice Kagan’s recusal.  The United States has filed an amicus brief supporting Wiley’s position.  The argument transcript in the Costco case is here for those looking for a preview of the Kirtsaeng case.  Justice Kagan’s questions should be particularly interesting, assuming the other Justices haven’t changed their position since last year. [MG]

Authors Guild Loses Its Suit Against HathiTrust

The lawsuit filed by the Authors Guild, foreign associations, and individual authors against the HathiTrust and university defendants came to an unceremonious close yesterday.  I’ll start with the conclusion of Judge Harold Baer’s opinion:

I have considered the parties’ remaining arguments and find them to be without merit.  For the foregoing reasons, Plaintiffs’ motions are DENIED.  Defendants’ motion for judgment on the pleadings is GRANTED in part and DENIED in part:  the Associational Plaintiffs have Article III standing; the U.S. Associational Plaintiffs lack statutory standing; and Plaintiffs’ OWP claims are not ripe.  Defendants’ and Defendant Intervenors’ motions for summary judgment are GRANTED:  their participation in the MDP and present application of the HDL are protected under fair use.  The two unopposed motions for leave to file briefs as amici are GRANTED.  The Clerk of Court is instructed to close the seven open motions, close the case, and remove it from my docket.

How’s that for finality.  The case came about through the agreement several university libraries made with Google to scan their collections as part of the Google Book Project.  The defendant universities were free to make use of these scans under the agreement.  This birthed the HathiTrust Digital Library.  The parallel litigation against Google continues, though the plaintiff publishers recently dropped out leaving the Authors Guild as the principle antagonist Plaintiff in that case.  I note that the publishers declined to join this suit.  The case against the HathiTrust was designed to secure a ruling that the scan and possible distribution of library collections was not fair use.  As we can see, that goal failed.  Several issues presented themselves in this case

To make clear, the abbreviated references in the quoted paragraph, MDP means Mass Digitization Project, OWP means Orphan Works Project and HDL means HathiTrust Digital Library.  Judge Baer addressed several issues, one of which is whether the trade associations had standing to file suit on behalf of their members.  The answer to that question was essentially yes, via the Constitution rather than the Copyright Statute itself.  While important to the litigation, it is not the central issue to the broader library community.

The Orphan Works Project was intended to make available scanned titles that were in copyright though the copyright holder could not be identified.  One of the individual author plaintiffs was misidentified as not findable by the University of Michigan.  The mistake caused the University to halt the program and re-evaluate the process it used to designate a work as orphan.  The Authors Guild sought a holding that the OWP violated the copyright law.  The University argued and Judge Baer agreed that such a ruling would be based on something speculative since there was no current program in place and there was no replacement in the office.  This was resolved by the ruling that the issue was not ripe for adjudication.

The first real issue was whether Section 108 of the Copyright Act precluded the library from utilizing fair use as a defense to a prima facie claim of copyright infringement.  The section defines what libraries can do with the materials in their collections.  Creating archival copies is allowed when an item is damaged or lost.  The Guild essentially argued that the scanning project more than exceeded the allowable uses under Section 108.  Section 108(f)(4) states however:

(f) Nothing in this section—

* * * *

(4) in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.

Judge Baer said the argument failed on the clear statutory text.  The next question was whether the activity of the library qualified as fair use.  It did as Judge Baer balanced the four non-exclusive factors listed in Section 107.  I won’t go through the detailed analysis.  One of the main reasons used by Judge Baer was the transformative nature of the scans.  They did not act as an alternative to the book in the market.  The transformation came in the digital index created out of the scans.  Scholars and researchers could make use of the index to search for word occurrences and references to pages with an indication as to how many hits appeared on a page.  The Guild argued that it contemplated the creation of a licensed service that may offer the same capability.  Judge Baer, citing case law, said the courts do not preclude an allowable alternative because something may happen in the future.

One of the other major factors in Judge Baer’s decision is the relevance of the Americans With Disabilities Act to the case.  The University used the digital collection to make works more easily available to blind and seeing-impaired students.  While the scanning project was not mandated by the Act, the use of the materials once scanned was authorized.  I won’t go into the arguments raised by the Guild, but I will offer part of Judge Baer’s response from footnote 25:

²⁵Plaintiffs suggestion at oral argument that print-disabled individuals could have “asked permission” of all the rights holders whose works comprise the HDL borders on ridiculous. Aug. 6, 2012 Tr. 11:13–12:8.

There were other parts of the opinion where the Guild’s arguments received similar (and deserved) treatment.

So what is next?  I assume the Guild will appeal to the Second Circuit.  There is no statement on the Guild’s web site (at least of this writing) on the outcome.  I would suspect this ruling would bolster Google’s defense against the Guild in the parallel litigation in Judge Chin’s courtroom.  The case is not quite the same in that Google claims indexing and providing snippets is fair use.  The use made by the HathiTrust defendants does not offer snippets or make the underlying scan available otherwise.  Assuming this case holds up on appeal, Google would be safe to do the same if it came to that.

Further analysis is available from Kevin Smith on the Scholarly Communications @ Duke blog.  There are links to a copy of the opinion.  Both are well worth reading.  [MG]

A Few Thoughts On The AAP-Google Settlement

One of the lingering questions about last week’s settlement between Google and the Association of American Publishers is why now after seven years of litigation?  The easy answer is both sides simply got tired of the fight.  I think there is more to it than that.  Even though the terms of the settlement are confidential, there are a few known elements.  One is that the publishers can opt out of selling through the Google Play Store.  Another is that Google will supply copies of scanned works to the publishers for possible sale through other vendors.  The benefit to the public is that a publisher can now offer back catalog items for sale as e-books.  None of this explains the “why now” question.

I think the settlement represents a strategic decision by the publishers to create an alternative distribution system as a counterweight to Amazon.  Google is perfect for this role.  The settlement required give and take between the publishers and Google which is not the relationship they seem to have with Amazon.  The lawsuit filed against Apple and several publishers filed by the Department of Justice at least indicated that Apple did not want to compete against Amazon on price, hence the most favored nation clause in the agency contracts between the parties. 

Google, on the other hand, has very deep pockets and a very deep reach with public.  It’s also a company that is known to experiment with concepts and ideas without worrying too much about the ultimate cost.  As Apple would prefer not to compete on e-book prices, Google may be more than willing to do so.  I think the publishers would be delighted if Google took market share away from Amazon much like the record labels hoped Amazon and Wal-Mart would take market share away from Apple in music sales.  None of this could happen with Google as an adversary.  The recent settlement makes Google not only a partner, but a compliant partner.  It has a viable ecosystem through Android devices and the Nexus 7 tablet.  Unlike Microsoft and Barnes & Noble, Google has a relationship with consumers that go beyond its store. 

The market, it seems might not be so completely foreclosed to Amazon as the publishers feared.  I believe the development may undermine their argument that adopting the agency model and MFN clauses was necessary to prevent Amazon from gaining a monopoly.  Getting Google into the market in a big way seems to be a perfectly legal alternative.  None of this may address the publishers’ concern that e-book pricing is too low.  As the song goes, you can’t always get what you want, but you get what you need.  Right now the publishers need a viable alternative to Amazon.  Google may be their best bet.  [MG]

Google Settles With Publishers (But Not Authors Guild) In Scanning Case

Google has settled the seven year old book scanning case with plaintiffs Association of American Publishers (AAP).  Unlike the comprehensive settlement that Judge Denny Chin rejected in March of 2011, this resolution does not require his approval.  The specific terms of the agreement are undisclosed.  I would think there are contingencies built in depending on the outcome of the rest of the litigation.  The joint press release issued by Google and the AAP has this:

The settlement acknowledges the rights and interests of copyright-holders.  U.S. 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.

* * * *

Google Books allows users to browse up to 20% of books and then purchase digital versions through Google Play.  Under the agreement, books scanned by Google in the Library Project can now be included by publishers.

Further terms of the agreement are confidential.

This settlement does not affect Google’s current litigation with the Authors Guild or otherwise address the underlying questions in that suit.

The Guild issued its own terse statement (reprinting the joint press release), stating essentially that this development has changed nothing from their perspective:

“The publishers’ private settlement, whatever its terms, does not resolve the authors’ copyright infringement claims against Google,” Authors Guild executive director Paul Aiken said in a statement. “Google continues to profit from its use of millions of copyright-protected books without regard to authors’ rights, and our class-action lawsuit on behalf of U.S. authors continues.”

Despite the lack of terms, it seems Google has entered into a blanket licensing agreement with the publishers.  The article in Wired, Google Gives Up Fair-Use Defense, Settles Book-Scanning Lawsuit With Publishers, suggests by its title that Google is abandoning the fair use argument it raised as a defense.  I doubt that the out-of-court settlement forecloses the argument in the remaining litigation or in the related HathiTrust litigation. 

The Guild seems determined to get a court to say that scanning whole titles without permission for snippet view in a search engine is not fair use.  A contrary ruling would not only civilly exonerate Google but give others the same opportunity.  Think of Amazon or Microsoft via its investment in Barnes & Noble’s Nook as possible competitors.  Then there are the foreign search engines such as Yandex in Russia and Alibaba in China who may also get in the game.

I think Google’s decision to settle is a smart move because it essentially puts the publishers’ interests against those of the Guild.  The AAP did not join the Guild in its subsequent suit against the HathiTrust.  The Second Circuit Court of Appeals is staying the Guild’s suit temporarily so Google can appeal the certification of a class action.  Judge Chin denied that request early in September, probably wanting to get the case out of his trial docket sooner than later.    The Guild ought to consider helping out Judge Chin.  My opinion is that it is easier to do business than to litigate.  A comparable settlement would prevent others from getting into the scanning game if the fair use argument is a ultimate winner at trial and on appeal.  [MG]

Jenkins' The Partisan: The Life of William Rehnquist

John A. Jenkins, the president and publisher of CQ Press, is a four-time recipient of the ABA’s Gavel Award Certificate of Merit, the highest award in legal journalism. Based on early buzz, he might become a five-time recipient for his The Partisan: The Life of William Rehnquist. See, e.g., Peter Landers' LB Bookshelf: Rehnquist Bio Doesn’t Pull Punches (WSJ Law Blog).

Quoting from the summary published here:

William Rehnquist's life story is profoundly significant yet largely unknown, which is how he wanted it. Rehnquist's place on the Court was at once an accident of history and an inevitable result of it—something that Rehnquist had secretly coveted since law school, and yet could never have connived to obtain. His nomination in 1971 was one of the modern political era's most unlikely appointments.
As a justice and later as leader of the Court, he presided over the some of the century's most dramatic decisions, including the impeachment of President Clinton and the resolution of Gore v Bush. In thirty-three years on the Supreme Court (nineteen as chief justice)—from 1972 until his death at age 81 in 2005—Rehnquist was on a mission, waging a quiet, constant battle to imbue the Court with a deep conservatism favoring government power over individual rights. His story is important because it teaches us why the Court matters, and how and why our least transparent, least understood branch of government has been politicized.

[JH]

A Bit More On Suppressing Books

I draw your attention to an article in The Atlantic called How To Make A Book Disappear by Maria Konnikova.  The book in question is Jonah Lehrer’s Imagine, which has been pulled from sales by its publisher over alleged fabrications.  Konnikova reviews other titles that have met the same fate though she is concerned that in the digital age books may not also disappear, but may be suppressed by publishers without explanation.

She recounts the lesson of Amazon years back having pulled George Orwell’s 1984 from Kindles because the company did not have the rights to sell electronic copies in the United States.  Most agree that episode was a heavy handed reaction to a legal question of rights.  The Lehrer removal wasn’t nearly as unilateral.  Copies that existed on electronic devices stayed.  All links, however, were removed from official commercial sources.

I wrote yesterday about publishers’ refusal to sell e-books to libraries as a type of banned books.  I also discounted the fear of piracy as one of the excuses publishers generally use to keep their product out of the digital hands of library users.  It really is a matter of control.  I agree with Konnikova that we should be concerned when digital systems can be used to censor content without a real explanation.  I would only add that the Internet is a lot like Las Vegas:  what happens on the Internet stays on the Internet.

I searched the words Jonah Lehrer Imagine PDF in Google and found a copy of the advanced uncorrected proof in less than 30 seconds.  For those who condemn Google for making this available, the same search in Bing offered the same links.  My point is not to promote literary piracy.  Rather, the point is that piracy regrettably becomes the only alternative when no legal means for acquiring content is available.  [MG]

More Thoughts On Libraries And e-Books

Next Sunday marks the beginning of Banned Books Week.  While we think of banned books in the context of censorship, there is another.  In this case I’m speaking of publisher hostility to libraries when they refuse to sell e-books to libraries or, in the alternative, sell them with attached onerous conditions.  American Library Association Maureen Sullivan issued an open letter to publishers today that highlights the concern:

It’s a rare thing in a free market when a customer is refused the ability to buy a company’s product and is told its money is “no good here.” Surprisingly, after centuries of enthusiastically supporting publishers’ products, libraries find themselves in just that position with purchasing e-books from three of the largest publishers in the world. Simon & Schuster, Macmillan, and Penguin have been denying access to their e-books for our nation’s 112,000 libraries and roughly 169 million public library users. 

Let’s be clear on what this means: If our libraries’ digital bookshelves mirrored the New York Times fiction best-seller list, we would be missing half of our collection any given week due to these publishers’ policies. The popular “Bared to You” and “The Glass Castle” are not available in libraries because libraries cannot purchase them at any price. Today’s teens also will not find the digital copy of Judy Blume’s seminal “Forever,” nor today’s blockbuster “Hunger Games” series.

I realize that publishers see libraries as a threat when it comes to lending e-books.  Their first fear is piracy, and their second is that each lend represents a potential lost sale.  I can appreciate the concern about piracy, though I think the fear that libraries will be havens for piracy is misplaced.  Libraries, by and far, are law abiding citizens who tend not to violate their licensing agreements for electronic content.  If there are disputes, such as the Georgia State e-reserve case and the HathiTrust litigation, they are handled in court.  Piracy is happening to e-books despite their lack in a library’s collection.  I would think that many readers would use the library for viewing content if it were a legal alternative.  With or without library lending, e-book piracy is always an alternative to the determined.

I’m of the belief that while library lending is an alternative to purchase for some, not everyone who borrows will buy.  This is true in the physical world as it is in the digital.  I also believe that the lack of a large selection of e-books in a library may drive some to purchase, but certainly not everyone.  The alternatives there are to borrow a printed copy, or wait until one becomes available.

As Banned Books Week will begin, think of all the e-books that are banned from libraries due to a publisher’s desire to keep them out the hands of the borrowing public.  [MG] 

He Said, He Said and Then Another He Said: Posner v. Scalia's Mediated Point-Counterpoint in Good Old Saturday Night Live News(maker?) Fashion

Adding to Mark's More on Justice Scalia post which followed up my Is Originalism Hitting Its Sell-By Date? post, here's the latest "all the news that's fit to print" as created by the Reuters news branch of the publisher of Reading Law: The Interpretation of Legal Texts.

On September 17 Reuters Editor-in-Chief Stephen J. Adler "interviewed" Justice Scalia (and Bryan Garner) on their book, Reading Law: The Interpretation of Legal Texts (2012). [Video below; transcript here]. During the interview, Scalia accused Posner of lying in Posner's eviscerating review of the book in The New Republic, The Incoherence of Antonin Scalia. At issue is whether Scalia deviated from his textual originalism to strike down the District of Columbia handgun ban by doing "legislative history" as Adler characterized Posner's remarks about Heller.

"To say that I used legislative history is simply, to put it bluntly, a lie."  -- Antonin Scalia

Quoting the post-interview follow-up article by Thomson Reuters' Terry Baynes in Fanning furor, Justice Scalia says appeals court judge lied (Thomson Reuters News & Insights, Sept. 17, 2012).

Lied, really? At worse it would be a matter of misinterpretation. It this case, however, it is a matter of Adler misrepresenting what Posner said. I'm not saying Reuters' Editor-in-Chief lied about what Posner said in The Incoherence of Antonin Scalia. I prefer to think he simply does not know how to apply "textual originalism" to Posner's text.

Alternatively, Adler could have been slow pitching a lead-in for Scalia to hit one out of the ball park. My hunch is that he at least knew that Scalia (and Garner's) Reading Law is a a repudiation of using "legislative history" in judicial decision-making. Did Reuters' Editor-in-Chief read all 600-plus pages of text before the interview? Don't know but he wouldn't have had to pay for a copy out of his own pocket because it was published by Thomson Reuters.

In response to the headline grabbing pump-it-up to infinity and beyond Reuters mudslinging:

"There is no question that Scalia in Heller was looking for the original meaning of the Second Amendment-that is his method of constitutional and statutory interpretation, the method defended in Reading the Law."  -- Richard Posner

Quoting from Text of Judge Posner's respose to Justice Scalia (Thomson Reuters News & Insights, Sept. 20, 2012).

And then one publication day later came Scalia's response to Posner's response in what Thomson Reuters News & Insights' Terry Bayner charactized as "fir[ing] another salvo in his unusual public feud with Judge Richard Posner over the meaning of 'legislative history.'" (Emphasis in the orginial but "added" because Bayner's entire introduction to Scalia's statement is published in italics which to be fair appears to be the house style for lead-ins to published statements but one can you smell the excitement in Reuters' newsroom for creating the news instead of just reporting it.)

"I stand by my statement." -- Antonin Scalia

Quoting from Scalia v. Posner: Round 4 (Thomson Reuters News & Insights, Sept. 21, 2012).

Keep the buzz alive? Perhaps these two brainiacs eventually will move on to a related judicial decision-making topic. Scalia could go on the offensive by addressing the doctrine of stare decisis as "applied" (read sometimes if not oftentimes ignored) by Posner. Perhaps some grunt at Thomson Reuters News & Insights -- "featuring content from Westlaw" -- can compile the history and treatment of Posner's Seventh Circuit opinions by Scalia for a News & Insights feature to keep the buzz alive. If so, the first thing I would do is slap the scraped text into Lexis for Microsoft Office to fact-check the KeyCites by way of Shepard's.

The below video interview of Scalia (and Garner) by Adler is not characterized as a interview. Adler's role is identified as serving as a moderator. Just Thomson Reuters BS. However, a moderating referee would be required if the feuding principals (sorry Garner) were interviewed together. Since LexisNexis hasn't gotten into the legal news broadcasting business yet, IMHO the only neutral forum is Bloomberg Law. It could be as interesting and entertaining as this still timely classic 1978 SNL Point-Counterpoint skit on the topic of abortion.

For what most likely will be the last traditional legal treatise published by Thomson Reuters, buzz just can't get any better than this. Perhaps TR can talk Justice Thomas into writing a legal treatise on silence. Garner is probably available to "co-author" it. [JH]