Scrivener's Error

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Scrivener's Error	Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

02 October 2005

13:16 [GMT-6]

Author's Guild v. Google (3) Still More Procedural Grumbling

My remaining procedural grumble in this matter comes from some particularly inelegant drafting in the complaint.

7. This copyright infringement action arises under 17 U.S.C. § 101 et seq. This Court has jurisdiction over this action under 28 U.S.C. § 1331 federal question, and 28 U.S.C. § 1338 (acts of Congress related to copyright).

8. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b) and 1400(a) because one of the named plaintiffs resides in this district and because defendant conducts business in this district.

To begin with, I suppose two out of three isn't bad; unfortunately, "isn't bad" isn't good enough. Note that there is no specific allegation of personal jurisdiction over the defendant! That's an easily fixable problem, but it shouldn't need to be fixed at all—especially as the theory of venue expressed in the complaint is that same as the theory that would give personal jurisdiction.¹

The more-subtle problem, though, is the question of exactly what business is being conducted in the Southern District of New York that might give rise to jurisdiction. The complaint and class definition limit themselves to scanning taking place at the University of Michigan—which is not, by any reasonable definition, in Manhattan. So, then, the only "business" that might be taking place in the Southern District of New York must be the dissemination of the final materials—an event that has not yet taken place. This is where we get into the interplay between the procedural posture of the matter and the substance, for two reasons.

First, a large portion of the case depends upon treating this as a declaratory judgment matter, requesting an injunction preventing the scanning from beginning. Leaving aside the logical problems with this issue, what we've really got is a court being asked to order a party not ordinarily found in the district (the reliance on "does business in") to not "do business" in another district. This is not the most obvious way to bring parties before the court, let alone make an enforceable remedy possible!

Second, this needlessly conflates the copyright problems. Google's program actually involves three distinct potential copyright violations (and I emphasize potential):

The scanning, copying, and storage of the works at the University of Michigan library;
The creation and dissemination of indices and/or search mechanisms from point 1; and
The retrieval of undefined portions of the underlying works after a "hit" from point 2 by a person or persons who have neither purchased nor otherwise obtained a license to do so

There is some case law on both sides of each of these issues, and the statute really isn't all that clear. To say the least, I think it was an incredibly silly decision to conflate the three violations into a single cause of action, because that encourages misapplication of analyses and privileges from one of the three into the others. For example, the argument that "Arriba Soft says this is fair use" can logically apply only to violation 2. The facts in Arriba Soft explicitly deny application to violation 3, and really don't apply to violation 1 at all.²

So, in the end, the Author's Guild's complaint forfeits some of its most powerful arguments for the sake of maintaining class uniformity (that, as I've already noted, is fatally flawed in any event). The public statements have focussed almost entirely on violation 2; that's where I'll start analyzing the substance, but I can guarantee that's not where I'll end up.

I make no judgment, at least as of yet, on the validity of this theory. In this particular case, I think it makes little difference; I think Google would have a great deal of difficulty claiming that its attempts at worldwide dominance of English-language searching somehow do not result in "doing business" in Manhattan. However, the exact scope of Internet-activity-based personal jurisdiction has yet to be studied carefully, either in federal court or in the literature, with much persuasive finality.
Remember that Arriba Soft does not involve any "data acquisition" from the originals at all; instead, the search engine sought material already on the web, which (according to all of the opinions) had been either placed there by Kelly (the photographer) or was placed there with his permission or acquiescence. The Ninth Circuit, and more explicitly the District Court, made no attempt to consider unauthorized acquisition of the material.

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Links of Interest

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Writer Beware and the Writer Beware Blog provide essential knowledge for writers who don't want to be ripped off
Writing-World.com published by the former managing editor of the now-defunct Inklings
Agent Research & Evaluation provides both free and paid analyses of literary agents
US Copyright Office, including both registration forms and records and quite a bit of other helpful information
Trademark Electronic Search System (TESS) allows searches of granted, pending, and some rejected trademark registrations
US Supreme Court Opinions from the current and past couple of terms
Law Library of Congress includes statutes for free
The Public Library of Law can help you find the law... but not use it in court, as many of its resources are not in proper form and do not provide all of the citation information needed in court papers
Legal, free e-books are available through Online Books (University of Pennsylvania) and Shakespeare (MIT)
Legal, free music is available through
- ClassicCat.net (what kind of music do you think you'll find here?)
- Music.Download.com (long-awaited successor to MP3.com)
- Janis Ian (artist)
- John McCutcheon (artist)

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

A blawg is sort of like a blog on legal issues, but usually has a lot more links to outside resources (other than other blogs) than does a typical blog. Scrivener's Error is a blawg, not just a blog. You can find other blawgs at < ? law blogs # >.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the Supreme Court, don't forget SCOTUSBlog.
Some academics' blawgs with a variety of political (and doctrinal) viewpoints:
- Professor Anthony Arend (Georgetown Law)
- Professor Stephen Bainbridge (UCLA Law) (aka "The Perfesser")
- Professor Jack Balkin (Yale Law)
- Professor Dennis Crouch (Missouri Law) (better known as Patently-O)
- Professor Michael Froomkin (University of Miami Law)
- Professor Eric Goldman (Santa Clara University Law)
- Professor Rick Hasen (Loyola-LA Law)
- Professor Brian Leiter (U of Chicago Law/Philosophy)
- Professor Lawrence Lessig (Stanford Law)
- Professor Michael Madison (Pitt Law)
- Professor Larry Ribstein (University of Illinois Law)
- Professor Lawrence Solum (University of Illinois Law)
- Professor Rebecca Tushnet (Georgetown Law)
- Professor Tom Ulen (University of Illinois Law)
BoingBoing, by speculative fiction writer (and 'net activist) Cory Doctorow, is quite hostile to copyright enforcement efforts, particularly regarding file-sharing
The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance
Cyberlaw (Stanford) has its agenda grounded firmly in the so-called "digital commons," which might make a bit more sense if any of the advocates of that viewpoint understood diddly-squat about population ecology
The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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