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.

20 October 2005

11:21 [GMT-6]

Author's Guild v. Google (8) The Other Shoe Drops

McGraw-Hill, on behalf of a number of publishers, has filed its own parallel action against Google regarding GooglePrint. Although it isn't exactly the complaint I would have written, it is vastly better than is the AG complaint.

To begin with, McGraw-Hill's¹⁹ counsel at Debevoise & Plimpton wisely evaded the question of class certification by not filing as a class. Not only does this avoid my initial criticisms of the particular problems with the AG class definition—and, sadly, these are problems that would also necessarily occur in any class of publishers—but the AAP suit explicitly requests "declaratory and preliminary and permanent injunctive relief" (Cmplt. ¶ 1), but not damages. By doing so, AAP would fashion a remedy that could be relied upon by any potential class member through offensive collateral estoppel²⁰ without the sideshow of class certification.

The substance of the complaint is also much better conceived. Early on, it acknowledges the possible library privilege under 17 U.S.C. § 108, and properly distinguishes that privilege from Google's program (Cmplt. ¶¶ 6–7). Most importantly, the AAP complaint properly characterizes the opt-in/opt-out controversy concerning whole-work (what I have called "primary") copying.

33. Both the Google Library Project and Google's pronouncement that publishers must provide to Google detailed lists of books that they wish to be excluded are contrary to the black letter requirements of the Copyright Act. The exclusive rights enjoyed by copyright owners to reproduce, publicly distribute[,] and publicly display their works, and to authorize others to engage in such acts, 17 U.S.C. § 106, squarely put the burden on Google either to obtain the permission from the copyright owners to copy and make use of copyrighted books or exclude them from the Google Library Project. [remainder of paragraph redacted]

This is the real core of the controversy. The key point is that the Supreme Court has already spoken on this subject:

More to the point, even if the dissent is correct that some authors, in the long run, are helped, not hurt, by Database reproductions, the fact remains that the Authors who brought the case now before us have asserted their rights under § 201(c). We may not invoke our conception of their interests to diminish those rights.

New York Times Co. v. Tasini, 533 U.S. 483, 498 (2001).²¹

The AAP complaint is also quite a bit shorter than is the AG complaint. Overall, it is a much cleaner statement of what is really at issue. That this "cleaner" statement comes from parties whose exclusive right is often far from clear (or clean)²² seems rather ironic—but all too typical in the murky world of copyright and the Internet.

For parallelism, I'll refer to this as the "AAP" complaint. Even though the Association of American Publishers is not the lead plaintiff in this suit—that's McGraw-Hill—the complaint is tailored to serve organizational interests more than those of any of the three publishers named individually. The Author's Guild suit then becomes "AG", both by obvious abbreviation and because the Author's Guild is trying to act as a private attorney general.
Offensive collateral estoppel (a variety of what used to be called res judicata) allows a nonparty to a lawsuit to use the results of that suit against the losing party in a later lawsuit of its own. For example, if A v B results in a finding of liability against B, C could use that finding to foreclose a defense by B in C v B on the same operative facts. See Parklane Hosiery v. Shore, 439 U.S. 322 (1979).
Some might object that Tasini explicitly did not decide any questions based upon fair use. Although this is a correct statement as to the appellate opinions, the defendants below did raise fair use as an affirmative defense. Further, even giving Campbell the broadest possible scope, a verbatim reproduction of a complete book cannot qualify as fair use under the standards put forth in Nation Enterprises—particularly not in the face of objection to that reproduction.
Cf. Rosetta Books, which I'll discuss in detail infra.

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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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