A Busy Day

The last day or so has been a busy day for me specifically, and for civil procedure nerds in general (all three of us). And it hasn't been exactly quiet on other news fronts either; so this will be an unusually brisk rundown.

• Congratulations to Austrian writer Elfriede Jelinek, winner of this year's Nobel Prize for Literature. I haven't read much of Jelinek's work—postmodernist Austrian-dialect German is just a little bit too difficult to manage without a lot more effort than I can give it—but her poetry that I've read is enchanting. I realize that's an odd thing to say about such archly postmodernist work… but it's the best I can do.
• Abuse of copyright by corporate actors is really, really in the news today. Springer Science + Business Media (one of the 250kg gorillas of scientific publishing) intends to put its entire backlist of journals online. Springer can do so because, as a condition of publication in those journals, it has historically required that it own the copyright in the articles (either via WFH or by transfer). This is the "hard case" that will undoubtedly make bad law. Of all the kinds of materials that have the greatest combination of "this is important for its information, not its expression," potential for political abuse, and historical disrespect for authors' rights, historical scientific journal articles are right at the top—perhaps even moreso than speeches by political figures (e.g., "I Have a Dream"). I am not certain that there is a good, internally consistent means of ensuring both access and respect for authors' rights for this kind of material under existing copyright doctrine, and most particularly given the differing visions of fair use ("fair dealing") between the US and Europe.
• A short comment on the much-worse situation (primarily because I'm involved with it far more directly than one might wish…):

  Google will host all material on our secure servers. Pages displaying your content have print, cut, copy, and save functionality disabled in order to protect your content. In addition, you can choose how much of your book users will be able to view over a 30 day period, from 20% of your content up to 100%. Google Print is a book marketing program, as opposed to an online library, and as such your entire book will not be made available online unless you expressly permit it.

  Can you say Tasini? See? I knew you could. Two bonus points for the first person who e-mails me with the correct identity of "you" in this quotation from Google's GooglePrint FAQ. Your answer must state both whom Google means (it's pretty clear) and whom Tasini says Google should mean. Hint: Look at this fine blawg's archives from about a year ago. Your answer will constitute 10% of your final grade. Recommended time: 25 minutes.

• Last, the nerd item. (I saved it for last so that the eyes-glazing-over aspect wouldn't impair your view of the other material.) Anita Ramasastry has a thoughtful essay up at FindLaw on proposed electronic discovery amendments to the Federal Rules of Civil Procedure. Thoughtful, although not entirely conversant with the realities faced by those of us who deal with electronic discovery daily—especially those of us who came to electronic discovery issues as lawyers with extensive backgrounds in the area from before we were lawyers. Although she is correct that the "reasonableness" standard actually stated in the rules is insufficient, she doesn't offer a reasonable alternative. This is an all-too-common problem in the electronic world: It's easy to find criticism, even well-founded criticism; it's difficult to find well-considered alternatives.