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

08:40 [GMT-6]

Ignoring that Fifth Fair Use Factor

A few days back, I remarked that "The last time I checked, though, 'administrative convenience' was not one of the four fair-use factors set out in 17 U.S.C. § 107" (emphasis and link in original). Apparently, there's a large Silicon Valley-based search engine enterprise that understands this.

Some of this is not entirely surprising. For obvious business reasons, Yahoo! could not let Google be the only source of "free e-texts." The difference is that Yahoo! is doing things right.

A consortium backed by Yahoo has launched an ambitious effort to digitize classic books and technical papers and make them freely available on the Web. One of the Open Content Alliance's first projects will be to digitize the approximately 18,000-title collection of classic fiction and non-fiction American books owned by the University of California, the group said. That could be completed by the end of next year.

The consortium includes Adobe Systems, Hewlett-Packard Labs, the National Archives of the U.K., O'Reilly Media, the Prelinger Archives, the University of California and the University of Toronto. The announcement of the consortium comes amid furious debate about a similar project called Google Library, in which the Mountain View tech giant is scanning and digitizing millions of books at select libraries. Google's effort differs, though, because it intends to digitize material regardless of its copyright status. The members of the Open Content Alliance say they will scan copyrighted material only if they have the permission of the rights-holders.

Michael Bazeley, "Consortium to Digitize Classic Books for Web," San Jose Mercury-News (03 Oct 2005) (emphasis added; fake paragraphing removed for clarity).

This announcement has just radically changed the dynamic of the Author's Guild v. Google suit. Google can no longer claim that it would be "completely impracticable" to obtain permission before digitizing works, as a competitor—supported by some pretty heavy-hitting partners, particularly including the UK's National Archives—has stated outright that it will obtain all necessary permissions. Even more interesting is that one of the members of the OCA not named in this particular story is the Internet Archive, the brainchild (or perhaps love-child—and I mean that in a positive way) of Brewster Kahle. I find it rather interesting that, although there were representatives of Google and several members of the OCA at the Orphan Works Hearings (and several others provided written comments), only one set really seemed engaged at the hearings… and, as is now apparent, only that one set listened.

So, in the end, what does this mean? I don't suggest that all authors suddenly stop using Google and use only Yahoo! for their searches. The two search systems have different purposes, scopes, and utilities. After all, Google is hardly the first (nor will it be the last) commercial Internet entity to see an opportunity for what it (wrongly) perceives as "free content laying around waiting to be exploited" in libraries! Further, unlike a certain Seattle-based retailer, Google's counsel can spell "Tasini."¹

Perhaps this bit of sarcasm isn't entirely fair; that individual has probably learned how to spell "Tasini" by now, after I was forced to provide a lesson (and citation) during our first conversation a couple of years back concerning a disturbingly similar program.

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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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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