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.

14 October 2005

11:00 [GMT-6]

Author's Guild v. Google (7): The Way Things Are

Most of my discussion of the merits thus far has assumed that the complaint asserted what it should have—three distinct, clear theories of copyright infringement, each sufficiently fact-bound to avoid a motion to dismiss (and probably summary judgment). Of course, that's not what will emerge from this fiasco; instead, we'll ultimately get an opinion founded on the complaint.¹⁶ So, then, what does the complaint actually allege?

39. Google has made and reproduced for its own commercial use a copy of some of the literary works contained in the University of Michigan Library, which contains the Works that are the subject of this action, and intends to copy most of the literary works in the collection of that library.

40. Google's conduct is in violation of the copyrights held by the Named Plaintiffs and other members of the Class.

41. Google's infringement of the copyrights of the works was willful.

Author's Guild, Inc. v. Google, Inc., No. 05cv8136 (S.D.N.Y.), complaint (Dkt. 1, Sep. 20, 2005).¹⁷

Admittedly, this isn't as bad as it could be. The real problems are twofold. First, it implies that only the copying itself (what I have labelled violation 1) is potentially at issue, although that conclusion is inconsistent with the factual allegations preceding it, particularly paragraphs 29, 31, and 33, each of which asserts that Google intends to display the copied works (violation 3). That this is only an implication, though, is not binding on anyone; under controlling law, the complaint is to be read broadly to include all theories and causes of action for which the defendant is fairly upon notice. Since the complaint alleges facts that would (or at least might) allow relief for violation 3, violation 3 has been plead—but only by implication, and inelegantly at that.¹⁸

More damagingly, though, the complaint includes five unnecessary words that sharply limit the scope of any potential relief: "for its own commercial use". Remember, "commercial use" is just one possible conclusion concerning one of the four fair use factors. As a hypothetical, would it be a violation if the University of Michigan did exactly the same thing as Google is doing/is proposing to do? If so, what if the contract between Google and the University of Michigan et al. characterizes Google as a subcontractor, doing something that the universities therefore could do on their own? Would that transform Google's behavior into a commercial, as opposed to scholarly, use? Licenses, after all, can have transitive properties: Absent a specific prohibition, one can ordinarily sublicense an action one is authorized to do through a license from a third party. And, of course, this gets vastly more complex in light of the special privileges accorded libraries under 17 U.S.C. § 108.

So, through some poor drafting, the complaint leaves itself open to serious problems both in substance and in rhetoric. A case of this nature must be won in the court of law and in the court of public opinion; winning in only one of those courts isn't enough. The language of the complaint sabotages the legal prong and subtly undermines the public prong (which I'll explore in the next entry).

Or, more probably, an amended complaint filed down the road after the first round of motion practice. That, however, must remain theoretical. I seriously doubt that the lawyers involved are paying any attention to what I have to say, so I hold out no hope that the complaint will actually be better on the substance of copyright; it will merely conform better to whatever facts emerge during discovery.
Although Milberg Weiss has developed a reputation for suing those who would copy its complaint, I claim fair use in this copy of a small extract of the complaint, which is fully attributed and is being used for purposes of commentary on a matter of public concern. That's right—sometimes I do support fair use.
This is a corollary of my diatribe on lawyers and shopping lists. The communication rule is basically this: If you don't ask for something clearly, the court is unlikely to give it to you clearly.

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.

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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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