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.

06 October 2005

11:05 [GMT-6]

Author's Guild v. Google (6): Was There a Violation?

Due to a technical glitch, this did not post properly the first time around—thus, the backdating.

Ordinarily, this would be the first question one asks. If there would be no violation even without referring to the fair use defense, why bother with the four-factor weighing? Rhetorically, I think it was necessary to at least indicate that fair use is at best arguable—if only because so many ill-informed commentators¹² have immediately jumped to that defense because it's easier to sell the public on that rhetoric.

In any event, let's take a closer look at the three violations I outlined previously.

The scanning, copying, and storage of the works at the University of Michigan library
This is probably the easiest theory to evaluate. Too many commentators are conflating this theory with the third one. That ignores the underlying premise of the Copyright Act: That a violation is complete upon copying absent a specific defense. The number of copies created, the profit from those copies, etc. all go to the appropriateness of the remedy and whether the violation should be treated as willful—but, excepting only fair use, they do not excuse the copying itself.
The creation and dissemination of indices and/or search mechanisms from violation 1
This is a somewhat more difficult violation to evaluate. On the one hand, making an index from a work is a derivative work that requires a license.¹³ On the other hand, the purported product—which is difficult to evaluate without having actually seen it—is not an index of just one work; it should, as described in public releases, function as a finding tool across a mass of works. Thus, there's an argument—not a good one in the abstract, but rhetorically attractive—that this is not an index to a particular work. The problem with that argument is that what Google proposes to do is, at its core, an index of indices. The top-level index (the composition—in the mathematical sense—of all those indices) is a violation only in the sense that it includes other violations; those lower-level, single-work indices, though, are direct violations.¹⁴ That does not, however, vitiate the original violation.
The retrieval of undefined portions of the underlying works after a "hit" from violation 2 by a person or persons who have neither purchased nor otherwise obtained a license to do so
This is by far the hardest violation to evaluate, because Google has promised to include only "limited portions" in response to each hit. The problem with this assertion, though, is that it is trivially easy to create a self-recursive program to spot a single work and recursively proceed through the manuscript at the granularity of the individual selections to recreate the entire text.¹⁵ Only by purposely sending false data back—which is antithetical to an accurate and useful indexing system—can one avoid this problem. On the other hand, that is at most an enablement similar to that in Sony.

On balance, evaluating this potential violation must await Google's actual implementation. There are simply too many quirks to index-based retrieval for any evaluation at this stage to claim any accuracy.

That leaves us with one clear violation and two potential violations with varying degrees (and causes) of mud. Mud they may be; but they cover the ground. Thus, we do need to consider the fair use doctrine; but can (and should) only do so in the context of the actual violations.

Or, worse, those with hidden (and not-so-hidden) agendas that create a results-oriented legal analysis. Despite the fact that I represent authors, I also represent several organizations and individuals who are primarily "re-users" of material. Perhaps that colors my analysis a bit; I think it does so far less than it does the EFF's, and certainly without the strident absolutism. For example, I concede that the Google program might well constitute fair use for some works under some circumstances; what I deny is that the program as a whole does so (or conceivably could do so, as we'll see down the road), whether considered as a class action or otherwise.
Although this is far from the clearest line of reasoning under any circuit's law, it is clearest in the Second Circuit… and perhaps most obscure in the Ninth. Nonetheless, based on the reasoning in the most-recent major case out of the Second Circuit, the result of this prong of the violation is predicatable.
For those of you who are law students and starting to study the Exclusionary Rule, this should sound a great deal like the "fruit of the poisonous tree" doctrine. The law is a web of common methods of reasoning; it's not seamless—if it was, there would be no conflict between the First Amendment and defamation—and this is an excellent example.
I created and test-proved such a program on the original Amazon SITB offering—well, it did require an OCR side-trip, but that does not appear to be required for any system compatible with Google's current results system—in about two hours. It was quick; it was dirty; it had a purely command-line user interface; it worked. (Of course, I tested it on one of my own clients' works.)

Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not constitute legal advice for your situation. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.

All material © 2003–09 except where otherwise indicated. All rights reserved. N.B. This blawg does not use the Creative Commons License, although I'm usually pretty good-natured about permissions for attributed reuse.

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Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

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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