How Google Book Search transformed from impossible to inevitable

English: Google Digitization signs are all ove...

English: Google Digitization signs are all over the Michigan engineering library. (Photo credit: Wikipedia)

In a widely reported copyright fair use decision, Judge Denny Chin ruled that the Google Books program constituted fair use, denying claims of the Authors Guild that the scanning of 20 million library books and posting snippets of those works online infringed the rights of authors.

The litigation history reflects the transformation that has taken place on the internet in the past decade. In 2004 Google entered into an agreement with several universities, beginning with University of Michigan.

Google began the process of digitizing books at the nation’s great libraries, starting at the University of Michigan, the alma mater of company co-founder Larry Page. “Even before we started Google, we dreamed of making the incredible breadth of information that librarians so lovingly organize searchable online,” said Page. A 2005 lawsuit resulted in three years of negotiation and a proposed settlement in 2008. That settlement collapsed among antitrust concerns and fairness of the representatives of the plaintiffs’ sub-classes.

As the Google Books program evolved, two discrete projects operated. In the Partner Program “works are displayed with the permission of the rights holder.” The rights holders had the ability to opt out of the scanning, but in 2011 the Association of American Publishers settled with Google. According to the decision, “As of early 2012, the Partner Program included approximately 2.5 million books, with the consent of some 45,000 rights holders.” The participation suggests an industry voting with its feet.

Under the publisher agreement, Google stopped displaying ads with the publisher’s books. In turn, the publishers provide Google with the books. This settlement, even more than the two district court decisions, effectively ended the dispute – leaving the two lawsuits as mop-up activities.

In the HathiTrust litigation, Judge Harold Baer determined Google’s Library Project partners who comprised the HathiTrust partnership were entitled to fair use protection for the digitization of the 20,000,000 volumes copied and used by the libraries. The decision highlighted the benefits to visually-impaired students and researchers who had access to content not previously available through audio readers or braille, the benefits of digital search functionality, and the importance of protecting the library collections from physical harm and erosion.

In both opinions, the courts highlighted the new research opportunities created by the digital database:

Mass digitization allows new areas of non-expressive computational and statistical research, often called “textmining.” One example of text mining is research that compares the frequency with which authors used “is” to refer to the United States rather than “are” over time. Quoting the brief of the Digital Humanities amicus, “it was only in the latter half of the Nineteenth Century that the conception of the United States as a single, indivisible entity was reflected in the way a majority of writers referred to the nation.”).

The Google decision followed the same path, highlighting the benefits of digital search, the limits placed on commercial exploitation by Google, and the pro-market effects agreed to by the publishers. “Google Books expands access to books.” With this simple sentence, the court highlights the essence of the eight years of litigation. In looking at the transformative nature of the fair use test, the court explained, “Google Books does not supersede or supplant books because it is not a tool to be used to read books.”

The court does not discuss the tremendous value the Google Books program benefits the search engine, speech recognition and other algorithms operated by Google. It also dismisses the intermediary copying as a necessary function to enable the research and archival function to be exploited. But it does highlight that Google “does not run ads on the About the Book pages that contain snippets” and that Google “does not engage in the direct commercialization of copyrighted works.”

Google’s settlements and decisions not to commercialize the Google Books program likely tipped the scales with the publishers and may have strongly influenced the courts. Unlike Judge Baer, Judge Chin does not even discuss the potential to license the digitized database to Google. Baer rejected the potential to license the database as speculative. Moreover, since new works are added by voluntary participation with the publishers, the licenses for new works are included.

The decision appears a simplistic fair use summary that could lead casual observers to wonder why it required eight years of litigation. But changes to the conduct of both parties are what really led to this simple decision. Google adapted its behavior to limit its commercialization of the works. Publishers shifted their position from one of demanding opt-in, ex ante control to recognizing that the opt-out partnership met their needs. Eight years of experience did not produce significant evidence of authors being harmed as a result of snippet-searches replacing library purchases of academic texts.

In addition, the role of digital texts has changed. The Amazon Kindle and Apple iPad have paved the way for a fundamental shift in the relationship authors have with electronic texts. Market forces proved Google correctly anticipated a highly reconstructed book industry. Google was only one of the players bringing about this change.

Both the HathiTrust litigation and the Authors Guild v. Google litigation will likely be appealed, but there is little appeal in undoing the transformations to publishing that the Google Books program began.

Social Media in the workplace – wide-ranging overview now available

In a recent blog post regarding Sam Moore‘s claim for publicity rights in a fictional film, I provided a general update on publicity rights law because such laws are now being used as part of the social media agreement between the public and such companies as Google and Facebook.

The discussion about continuing evolution of publicity rights doctrine is part of a larger review I have written on the role of social media across the spectrum of media law.  That working paper, Social Media in the Workplace – From Constitutional to Intellectual Property Rights is now available at SSRN: http://ssrn.com/abstract=2348779 or for download.

Social media has become a dominant force in the landscape of modern communications. From political uprisings in the Middle East to labor disputes in Washington State, social media has fundamentally disrupted the way in which communications take place. As noted constitutional scholar Erwin Chemerinsky explained, “technology has changed and so has First Amendment doctrine and American culture. It now is much more clearly established that there is a strong presumption against government regulation of speech based on its content.” Just as the government must tolerate more speech, the same thing is true about employers. Chemerinsky further notes that “for better or worse, profanities are more a part of everyday discourse.” Abrasive speech may be coarse from the word choice or may more readily upbraid the objects of the speech. Whether foul or abusive, such speech now pervades commercial and social media.

Social media fundamentally upends the notion of the traditional commercial media environment and with that, it reverses the established legal doctrine from constitutional assumptions to everyday rules involving copyright, defamation, and unfair labor practice. For employers, these rules are particularly important to navigate because they effect the manner in which the companies communicate with the public, how employees communicate with each other, and how laws are restructuring the employee-employer relationship. The transformation is taking place with changing policies affecting trade secrets, confidential information, copyrighted material, aggregated data, trademarks, publicity rights, and endorsements.

This article highlights the nature of the changes as they present the new paradigm shift and provides some guidance on how to prepare policies for the transitional model. The article tracks the rise of the many-to-many model of social media, its effect on commercial speech, intellectual property, and labor law. The article concludes with suggestions on employment policies geared to managing these changes in the modern workplace.

There will be a CLE program sponsored by the Dayton Intellectual Property Law Association on Friday November 8, 2013 featuring these materials.

Copyright review hearings end first phase as DOC Copyright Green Paper is released

On April 24, 2013, House Judiciary Chairman Bob Goodlatte (R-Va.) announced that the Subcommittee on Courts, Intellectual Property, and the Internet would “conduct a comprehensive review of U.S. copyright law over the coming months.” The first set of those hearings have just concluded.

The first of the hearings featured a panel of experts who participated in the Copyright Principles Project led by Professor Pamela Samuelson of Berkeley Law School.[1] The second panel, in contrast, emphasized representatives from the creative industries. The third hearing focused on the technology industries. The three hearings represent the Venn diagram of copyright policy: Creators, Disseminators, and Users. Each of these groups overlaps and the boundaries are very imprecise. Nonetheless, there remains a tension among these three spheres because greater legal protections in one sphere tend to affect the other spheres in unwanted ways. Since all three spheres are critical to the culture and to the creative economy, copyright reform is a matter of finding balance and cohesion within this matrix.

In addition to the hearings by the House Judiciary Committee, the Department of Commerce Internet Policy Task Force issued a green paper entitled “Copyright Policy, Creativity, and Innovation in the Digital Economy.”[2] The green paper emphasizes the need for balance between protections for creative rights ownership and the broad dissemination of information.

Some would argue that copyright protection and the free flow of information are inextricably at odds—that copyright enforcement will diminish the innovative information-disseminating power of the Internet, or that policies promoting the free flow of information will lead to the downfall of copyright. Such a pessimistic view is unwarranted. The ultimate goal is to find, as then-Secretary of Commerce Gary Locke explained, “the sweet spot on Internet policy – one that ensures the Internet remains an engine of creativity and innovation; and a place where we do a better job protecting against piracy of copyrighted works.” Effective and balanced copyright protection need not be antithetical to the free flow of information, nor need encouraging the free flow of information undermine copyright. In fact, as the Supreme Court has recognized, “the Framers intended copyright itself to be the engine of free expression.”[3]

While the green paper is very detailed, it emphasizes areas such as the public performance right for sound recordings, issues involving notice and takedown under the DMCA, online licensing of works, and online enforcement.[4] The green paper also expresses support for expanded fair use and related exclusivity exemptions, particularly with regards to teaching and access for persons with disabilities. The green paper was distributed as the first round of hearings came to a close. The green paper had little influence on the initial hearings but is likely to become increasingly influential as the process continues.

The green paper and the Goodlatte hearings, together with the many efforts by the Copyright Office and others, are creating significant energy around changes to the copyright statute. At the same  time, the proposals are tweaks rather than overhauls and the public may quickly grow tired of what will be a lengthy process. But it matters, so try to stay tuned.


[1] See Pamela Samuelson, The Copyright Principles Project: Directions for Reform, 25 Berkeley Tech. L.J., 1175 (2011) http://www.law.berkeley.edu/files/bclt_CPP.pdf.

[2] Copyright Policy, Creativity, and Innovation in the Digital Economy, Dept. of Comm. Internet Policy Task Force, July 2013 at http://www.uspto.gov/news/publications/copyrightgreenpaper.pdf. See also USPTO & NTIA, Copyright Policy, Creativity, and Innovation in the Internet Economy, 75 Fed. Reg. 72790 (November 26, 2010) (notice of inquiry. The comments are available at http://ssl.ntia.doc.gov/comments/100910448-0448-01/.).

[3] Id. at 2, quoting Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985).

[4] Id. at 5.

W. Bruce Lunsford contribution to create Academy for Law, Business + Technology

With apologies for posting a press release as a blog post, the news that W. Bruce Lunsford has pledged $1 million to Chase under the direction of the Law + Informatics Institute for the creation of the the W. Bruce Lunsford Academy for Law, Business + Technology is exciting enough for us to share our news.

HIGHLAND HEIGHTS, Ky. (May 15, 2013) — The Northern Kentucky University Chase College of Law has received a $1 million gift from W. Bruce Lunsford to establish and support the W. Bruce Lunsford Academy for Law, Business + Technology.

Lunsford, a 1974 graduate of Chase College of Law, is chairman and CEO of Lunsford Capital, LLC, a private investment company headquartered in Louisville, Ky.

The W. Bruce Lunsford Academy for Law, Business + Technology will be an honors immersion program operated by the NKU Chase Law + Informatics Institute. The focus of the program will be to develop “renaissance lawyers” for the Information Age. The Lunsford Academy will provide students with the technological, financial and professional skill sets essential to the modern practice of law.  Through the program’s technology-driven, skills-based curriculum, students will acquire the fundamental skills that will make them more productive for their clients, more attractive to employers and better prepared to practice law upon graduation.

For those interested in learning more about the details of the program, the most comprehensive vision is provided in my forthcoming article from Connecticut Law Review. An working draft of the paper may be found here: Jon M.Garon, Legal Education in Disruption: The Headwinds and Tailwinds of Technology, (Conn. L. Rev. forthcoming) at SSRN: http://ssrn.com/abstract=2040560.

In addition to taking the program’s required and elective law and informatics courses, Chase students participating in the Lunsford Academy will have the opportunity to participate in technology-focused semester-in-practice placements and study abroad programs; they will also be able to seek joint degrees.

Chase College of Law partners with the NKU College of Informatics to offer a Juris Doctor/Master of Business Informatics and Juris Doctor/Master of Health Informatics and with the NKU Haile/US Bank College of Business to offer a Juris Doctor/Master of Business Administration.

Professor Jon Garon, director of the Law + Informatics Institute, said the development of the Lunsford Academy is the next step in the evolution of legal education. “In addition to a solid foundation in legal doctrine, theory and practice, law students need business education, information technology and intellectual property knowledge, and law practice management experience,” he said. “These skills will enable students to compete in today’s highly networked, efficient and global business community. The generous donation by Bruce Lunsford enables Chase to meet this challenge and redefine the scope of legal education.”

In recognition of Lunsford’s gift, the academy will be named the W. Bruce Lunsford Academy for Law, Business + Technology, upon approval by the NKU Board of Regents.

“We are extremely honored and pleased that Bruce has made this significant investment in our Law + Informatics Institute,” said Dennis R. Honabach, dean of the College of Law. “The Lunsford Academy will provide our law students with invaluable opportunities to become uniquely prepared for the modern practice of law.”

One year later – DRM-free ebooks hugely positive for Tor

New York Times technology columnist David Pogue discussed the decision last year by Tor Books UK and US to drop copy protection. It just released a statement regarding the effect of the DRM-free ebooks after one year.

His column deftly discusses the tension between consumers who want the inconvenience of encryption eliminated and concerns that DRM targets lawful consumers far more than those acquiring illegally distributed copies. Although he does not address the plethora of DRM-free versions on bit torrent sites, he notes that the changes to DRM for commercial products might affect the rate of piracy, but not the existence of piracy.

The Tor announcement highlighted a few other features of their strategy. First, the strategy was about their authors and the goals of the authors to engage more effectively with their readers. Secondly, as a science fiction imprint, their readership is among the most capable of getting DRM-free copies, so the publisher needs to make the consumer happy more than it needs to protect itself from the consumer. And finally, the decision to eliminate DRM does not mean that the works are not for-profit, on-sale copies. This statement captures many of Tor’s concerns:

We had discussions with our authors before we made the move and we considered very carefully the two key concerns for any publisher when stripping out the DRM from ebooks: copyright protection and territoriality of sales. Protecting our author’s intellectual copyright will always be of a key concern to us and we have very stringent anti-piracy controls in place. But DRM-protected titles are still subject to piracy, and we believe a great majority of readers are just as against piracy as publishers are, understanding that piracy impacts on an author’s ability to earn an income from their creative work. As it is, we’ve seen no discernible increase in piracy on any of our titles, despite them being DRM-free for nearly a year.

Pogue suggests but does not state outright that DRM is an ineffective strategy for reducing piracy. But he is very explicit that the point of an anti-piracy policy is to increase sales and revenue. DRM-free does not mean without cost. iTunes sells its music even though it dropped DRM. He also points out that his own books have had fared similarly in the market.

If book consumers thought that everyone in the household could easily read the same book (in the manner that a family can share a physical book), it might be more willing to spend money to own the ebook. For works that have no physical cost, the increase in unauthorized copies is not the right metric. The right question is whether more customers will purchase the work. If more copies are sold, the work is more successful, even if more copies are also pirated.

Pogue makes another strong point that the ease of the transaction directly impacts sales. “Friction also matters. That’s why Apple and Amazon have had such success with the single click-to-buy button. To avoid piracy, it’s not enough to offer people a good product at a fair price. You also have to make buying as effortless as possible.” High transaction costs are reasonable only for expensive, infrequent purchases. Weight is a normal force on friction; only weighty purchases should have high friction.

Finally, Pogue addresses the pricing of ebooks. Frankly, he is more generous to the publishers than I would be on this issue by acknowledging the costs associated with “author advance, editing, indexing, design, promotion, and so on” but like the music industry, the investments are declining. The public is likely to value the fair price point of an ebook as a percentage of its physical counterpart. If the physical copy has a secondary market in the used bookstore, then the loss of resale also needs to be factored in for the consumer. Otherwise the consumer is only paying for the convenience of instant access, and if the instant access is undermined by cludgy DRM, there is no value to be had.

Tor heard this from its constituents:

But the most heartening reaction for us was from the readers and authors who were thrilled that we’d listened and actually done something about a key issue that was so close to their hearts. They almost broke Twitter and facebook with their enthusiastic responses. Gary Gibson, author of The Thousand Emperors tweeted: “Best news I’ve heard all day.” Jay Kristoff, author of Stormdancer, called it “a visionary and dramatic step . . . a victory for consumers, and a red-letter day in the history of publishing.”

Tor never says it has become more profitable, but the company does relish the role it is taking in leading the publishing industry towards a more consumer-friendly business model.

The move has been a hugely positive one for us, it’s helped establish Tor and Tor UK as an imprint that listens to its readers and authors when they approach us with a mutual concern—and for that we’ve gained an amazing amount of support and loyalty from the community. And a year on we’re still pleased that we took this step with the imprint and continue to publish all of Tor UK’s titles DRM-free.

So the lesson from Tor is simple – for low-cost impulse purchases DRM doesn’t add value. High quality, fairly priced, and easy to access works will continue to attract a growing market. These are the points of emphasis and differentiation for the marketplace. DRM may be a legal solution, but it is not a sound business strategy.

Cyber Defense Strategies and Responsibilities for Industry Call for Papers Now Open

The Northern Kentucky Law Review and Salmon P. Chase College of Law seek submissions for the third annual Law + Informatics Symposium on February 27-28, 2014.

2014 Law + Informatics Symposium on

Cyber Defense Strategies and Responsibilities for Industry

 The focus of the conference is to provide an interdisciplinary review of issues involving business and industry responses to cyber threats from foreign governments, terrorists, and corporate espionage. The symposium will emphasize the role of the NIST Cybersecurity Framework and industries providing critical infrastructure.

The symposium is an opportunity for academics, practitioners, consultants, and students to exchange ideas and explore emerging issues cybersecurity and informatics law as it applies to corporate strategies and the obligations of business leaders. Interdisciplinary presentations are encouraged. Authors and presenters are invited to submit proposals on topics relating to the theme, such as the following:

Cyber Warfare

  • Rules of Engagement
  • Offensive and defensive approaches
  • Responses to state actors
  • Engagement of non-state actors
  • Distinguishing corporate espionage from national defense
  • Proportionality and critical infrastructure
  • Cyber diplomacy
  • Cold War footing and concerns of human rights implications

Front Lines for Industry

  • Role of regulators such as FERC
  • Legacy systems and modern threats
  • NIST guidelines
  • NIST Cybersecurity Framework
  • Engaging Dept. of Homeland Security
  • Implications on various industries (electric power,  telecommunications and transportation systems, chemical facilities)
  • Health and safety issues
Global Perspectives

  • Concepts of cyber engagement in Europe
  • Perception of Internet and social media as threat to national soverignty
  • Rules of engagement outside U.S. and NATO
  • Implications for privacy and human rights
  • Stuxnet, Duqu, Gauss, Mahdi, Flame, Wiper, and Shamoon
  • Cyber engagement in lieu of kinetic attacks or as a component of kinetic engagement

 

Corporate Governance

  • Confidentiality and disclosure obligations
  • Responsibilities of the board of directors
  • Staffing, structures and responses
  • Data protection & obligations regarding data breaches
  • Corporate duty to stop phishing and other attacks for non-critical industries
  • Investment and threat assessment
  • Litigation and third party liability

 

Other Issues

  • Executive orders and legislative process
  • Lawyer responsibility in the face of potential threats
  • Practical implications of government notices
  • Perspective on the true nature of the threat

Submissions & Important Dates: 

  • Please submit materials to Nkylrsymposium@nku.edu
  • Submission Deadline for Abstracts: September 1, 2013
  • Submission Deadline for First Draft of Manuscripts: January 1, 2014
  • Submission Deadline for Completed Articles: February 1, 2014
  • Symposium Date: February 27-28, 2014

Law Review Published Article:  The Northern Kentucky Law Review will review, edit and publish papers from the symposium in the 2014 spring symposium issue.  Papers are invited from scholars and practitioners across all disciplines related to the program. Please submit a title and abstract (of 500-100 words) or draft paper for works in progress. Abstracts or drafts should be submitted by September 1, 2013. Submissions may be accepted on a rolling basis after that time until all speaking positions are filled.

Presentations (without publication) based on Abstracts:  For speakers interested in presenting without submitting a publishable article, please submit an abstract of the proposed presentation. Abstracts should be submitted by September 1, 2013. Submissions may be accepted on a rolling basis after that time until all speaking positions are filled.

Publication of Corporate Handbook on Cyber Defense: The Law + Informatics Institute may edit and publish a handbook for corporate counsel related to the topics addressed at the symposium. Scholars and practitioners interested in authoring book chapters are invited to submit their interest by September 1, 2013 which may be in addition to (or as an adaptation of) a submitted abstract for The Northern Kentucky Law Review. Submissions may be accepted on a rolling basis after that time until all chapter topics are filled.

About the Law and Informatics Institute:  The Law + Informatics Institute at Chase College of Law provides a critical interdisciplinary approach to the study, research, scholarship, and practical application of informatics, focusing on the regulation and utilization of information – including its creation, acquisition, aggregation, security, manipulation and exploitation – in the fields of intellectual property law, privacy law, evidence (regulating government and the police), business law, and international law.

Through courses, symposia, publications and workshops, the Law + Informatics Institute encourages thoughtful public discourse on the regulation and use of information systems, business innovation, and the development of best business practices regarding the exploitation and effectiveness of the information and data systems in business, health care, media, and entertainment, and the public sector.

For More Information Please Contact:

  • Professor Jon M. Garon, symposium faculty sponsor and book editor: garonj1@nku.edu or 859.572.5815
  • Lindsey Jaeger, executive director: JaegerL1@nku.edu or 859.572.7853
  • Aaren Meehan, symposium editor, meehana2@mymail.nku.edu or 859-912-1551