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.

04 October 2005

13:27 [GMT-6]

Author's Guild v. Google (5) The Fair Use Defense

Keep in mind that fair use is not a privilege. It is instead an affirmative defense to an accusation of infringement. (Unfortunately, neither the statute nor the courts are very consistent in treating it as such.) The burden of proving an affirmative defense is on the party asserting the defense; this is one of the many "the tie goes to the runner" principles common in American jurisprudence.

In any event, let's take a fresh look at the way the fair use defense applies to each of the three potential violations that the Author's Guild should have alleged.

	(1) Scanning, Copying, and Storing	(2) Searchable Index	(3) Retrieval Upon Hit
i. Purpose & character of use	Weighs against fair use, especially under Tasini	Indeterminate; an index is a derivative work (and therefore weighs against fair use), but certain indexing methods would mitigate this determination; whether a textual index of a textual work is "transformative" is highly doubtful under Second Circuit law	Indeterminate
ii. Nature of source work	Variable; for works of fiction, weighs against fair use, but a narrower question for nonfiction	Indeterminate; an index for a work of fiction makes little sense for general usage, but an index to a work of nonfiction does make sense	Indeterminate, but probably weighs slightly in favor of fair use for limited extracts (but heavily against fair use for many large values of "limited")
iii. Amount and substantiality	Copying the whole work weighs strongly against fair use; as a whole-work copy, this factor should get the greatest weight	Indeterminate; unlike Arriba Soft, the index of textual terms is more likely to provide the user information information needed to evaluate the work, but less likely to be useful without substantial copying under Nation Enters.	Indeterminate; slightly against fair use for collective works and anthologies, but slightly favors fair use for single-work books
iv. Effect on market	Speculative at best, although anticipated changes in market conditions make this factor weigh narrowly against fair use	Unlikely to have any effect, although indexing seldom has any measurable effect on the market in print publishing	Slightly favors fair use for nonfiction, indeterminate for fiction and drama
On Balance	Solidly against fair use	Indeterminate—and therefore fails as an affirmative defense	For most subject works, slightly against fair use; at best, indeterminate to slightly favoring fair use for other classes of works¹¹

Admittedly, this doesn't look a whole lot like the analysis in Arriba Soft. That is primarily because, as I've tried to make clear, this case isn't Arriba Soft. It is not being heard in the Ninth Circuit, which (along with the Eleventh Circuit) has the least-stringent view of fair use; it is not based on materials merely gathered, but for which substantial and conscious copying must occur for any of the three "uses"; it is not based upon reuse of materials in exactly the same form, medium, and purpose/function as provided by the copyright holder; and does not concern a well-delineated final use and presentation.

Perhaps most importantly, though, that this case is being heard in the Second Circuit matters for a procedural reason: Second Circuit law on affirmative defenses in general is somewhat less favorable to defendants engaged in knowing and purposeful acts. That is, the nature of fair use as an affirmative defense matters more in the Second Circuit than it does in the Ninth Circuit (or would in the Sixth, Eighth, or Eleventh Circuits). Put another way, the umpires in the Second Circuit seem less appreciative of the well-turned, but close, double play than do those in the Ninth Circuit.

This particular cell demonstrates another reason that a class action may not be manageable: It will require a work-by-work inquiry. Although that is not by itself disqualifying, the rather indistinct nature of a fair number of literary works at the University of Michigan Library indicates that for at least a nontrivial number of works, this will require a fairly intensive factual inquiry.

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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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