Scrivener's Error

null
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.

24 February 2006

09:57 [GMT-6]

Cassandra Was Here

I can't share the tepid enthusiasm across the 'net for the P10 v Google rulings. Like that's a surprise.

There appear to be four fair-use factors—just not the four specified in § 107. To begin with, the first and fourth factors (broadly, the "commercial necessity" factors) generally get conflated and weighed as at least half of the fair use equation. P10 v Google is an excellent example of this; Judge Matz's decision is a classic example of counting the same "facts" twice in his analysis of the first and fourth factors. What this basically says is that, with only very rare exceptions, the first and fourth factors will point the same way anyway.¹ It also gets into the "fifth fair use factor"—the one that the Copyright Office's Orphan Works Report didn't quite acknowledge was driving the entire inquiry: administrative convenience.

The comments are littered with examples of situations where the trail ran cold, turned into a dead end, or simply involved more time and money than the user was willing to spend. Often the user can incur substantial costs without any guarantee that the search will produce information that provides a clear chain of title. Some searches turn into outright investigations.

I find two elements of the P10 v. Google decision rather insidious:

The presumption that when one puts anything on the web, one automatically loses the opt-in presumptions of permissions and fair use in copyright law. Consider, for example, P10's magazines. Nobody in his/her right mind would claim that he or she can freely reprint, "thumbnail index," or whatever those photos merely because the magazine doesn't contain the equivalent of a robots.txt file that explicitly says they can't. This is instead a serious flaw in Internet protocols that could be seamlessly fixed at the design level; instead, we're stuck dealing with a massive "social engineering" issue.

Unfortunately, as the passage in the Register's report quoted above indicates—and it is a representative passage in that document, not a unique one—"administrative convenience" is, for purposes of resolving specific disputes over reuse of copyrighted material, a substantial factor in the fair use equation. Just because it isn't cited in § 107 doesn't mean it's not there.²
Lurking underneath the opinion one can spot the "free advertising" theory dressed up in new rhetoric. I was under the <SARCASM> (apparently mistaken) </SARCASM> impression that Grokster (and, for that matter, Tasini at n.6) renounced that theory as inapposite with copyright law.

In economic terms, the "pro-'net" position is that costs of search and permissions—which, for physical media, have always been borne by the potential user—must be shifted to the copyright holder. To say the least, this is inconsistent with the aims of Berne, of the IP Clause, and of the Statute of Anne. If that's the direction we want to go as policy, so be it; however, I resent the rhetorical excesses used by Certain Commentators Based on the Left Coast (and there is more than one) to disguise that this is indeed a paradigm shift that radically restates, revalues, and reduces creators' rights.

I would even infer that any indexing or referencing system does so inherently, but I'm still thinking through that.
Some might argue that administrative convenience is just one subelement of the fourth factor (the effect on the market). Perhaps, in its original conception, it is; of course, that original conception predates even the ancestors of the 'net by over a decade in statutory terms, and over a century in doctrinal terms. However, in resolving particular disputes "administrative convenience" has become much, much more than that. For example, the logic in Grokster eventually reduced to the question of who shall bear the administrative costs. The Court held, implicitly, that the party doing (or facilitating) the copying still must bear those costs. The 'net community hasn't accepted (or even acknowledged) that; instead, as the rhetoric quoted in the Register's report above implies, is assumes that the holders must bear those costs, and treats anyone who dares object as a Luddite. This was all too apparent at the Orphan Works Roundtables… of which more when I finally finish this article.

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.

Site Feed

I approve of no advertising appearing on or through syndication for anything other than the syndication itself; any such advertising violates the limited reuse license implied by voluntarily including syndication code on this blawg.

Current Poll

None at present.

Archives

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

Links open in a new window.

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.

Searches

Optimized for at 1024x768.