29 September 2005


[1410—edited to correct a hasty misattribution—my fault for having two disparate things on screen at once]

There's a blawg called "LawPundit" that I don't read much, except on the rare occasion that there's a link to it from other material that I read. Based on something recent on that blawg, I won't be starting regular reading any time soon. LawPundit said (and I'm quoting the entire paragraph):

Scrivener's Error points out accurately that the actual copyright to most trade books still resides with the author but then goes forward to make the error in thinking that Google's opt-in or opt-out option has any major relevance for the judicial decision in this case. It does not. The major question is whether Google's scanning of library books for the purposes of listing such books on a search engine is a transformative use — and the answer can only be — yes, it is, depending upon how that material is presented online. The opt-in or opt-out function has merely to do with the time at which a copyright holder gives permission — which is in fact not even required for a transformative use.

whereas what I said was

The ultimate irony here is the usual mechanism of class remedies: Usually—as in the horribly structured "database settlement" also "brokered" of late by the Author's Guild—everyone who falls into the class definition is bound by the settlement unless they opt out. Given that opt-in/opt-out is precisely what is at issue in Google's program, flowing in the opposite direction, this seems rather silly. It wouldn't have been that hard to both acknowledge reality and make the class definition logically consistent with the cause of action… [first version of class redefinitions follows]

How ignorant is this? Let me count the ways, although I'm probably going to run out of fingers.

  1. My posting specifically concerned the procedural aspects of the matter, focussing on (for that post) class certification. Under Fed. R. Civ. P. 23, which governs class certification, one does not inquire into the merits of the matter; one accepts the allegations in the complaint as true for the purpose of class certification, just as one accepts the allegations of the complaint as true for the purpose of a motion to dismiss under Fed. R. Civ. P. 12(b)(6). The complaint asserts—unclearly and inelegantly—that Google's use is nontransformative. Thus, the criticism that my attack on the class definitions didn't consider this is invalid… even aside from
    • The blatant misreading of Kelly v. Arriba Soft, likely made possible by never reading the district court's opinion that set forth the facts in greater detail and better context;
    • The failure to acknowledge or cite the sources of the "transformative" test actually used in Kelly (such as Comedy III Prods., Inc. v. Saderup), which have been roundly criticized by virtually every other non-California-based court to consider the issue… particularly including district courts in the Second Circuit, where Kelly and Saderup are nonbinding and Author's Guild v. Google will be heard;1
    • The admission that maybe this isn't a transformative use, because transformation "depend[s] on how that material is presented online," when the complaint never reaches online presentation and concerns only the copying from the library system per se.
  2. My posting broadly concerned the legal posture of the litigants, not the "time at which a copyright holder gives permission." No reasonable reading of either the paragraph I cited or the post as a whole can support LawPundit's attempt to transform my criticism of the procedural posture into a comment on the substance.2 At the top of my posting I stated "for the next few posts, I'm going to rip into the procedural problems with the case as it was filed" (emphasis in original).
  3. My posting commented on the irony (what I meant by "silly") of choosing an opt-out-class procedure when the substantive assertion, parallel to that in Tasini, is that this kind of widespread program asserting fair use (or another privilege not requiring permission from the copyright holder) is itself opt-in. I made no assertion on the substance; only on the rhetoric. LawPundit, however, was unable to spot the difference.
  4. My posting included the following footnote that, if nothing else, should have made clear that I was not commenting on either the substantive basis for the complaint or the theoretical possibility of dealing with the issue on a class basis:

    4. Just to make one other thing perfectly clear: In the mid-1990s, I was a plaintiff's-side class-action-oriented attorney in Chicago; in fact, I was almost solely responsible for the Rivera matter cited in footnote 3. I am in favor of class actions, and I think that a lot of cases that should be managed on a class basis aren't either through failure to plead it as a class or (often unjustified) refusal to certify the class. Nonetheless, because this particular matter so heavily concerns noneconomic rights of which authors and their agents remain ignorant, we need to tread very carefully here.

    Anyone even moderately familiar with class action procedure would understand that last sentence as a warning that Milberg Weiss's usual class-litigation theories may not apply, because damages will form only a minor component of the proper remedy. Damages-based class actions are governed by a different subpart of Fed. R. Civ. P. 23 than are injunction-based class actions; the case law on the propriety of class certification, as a whole, treats the difference as significant for purposes of determining both adequacy of representation and typicality. I can only conclude that LawPundit either (a) did not read my entire posting, but commented on an out-of-context soundbite, which is intellectually dishonest; or (b) doesn't know squat about class action procedure, making any comment on a posting explicitly about class action procedure intellectually dishonest.

  5. My posting went a long way beyond copyright law, into the morass raised by differing contractual terms, for a very specific reason: That's what Tasini did. LawPundit couldn't be bothered to see that comparison. Admittedly, I didn't raise Tasini by name in my posting; one would hope, though, that someone commenting on Internet databases of previously published material would at least think for a moment about the only Supreme Court opinion on Internet databases of previously published material. Or, at least, that an intellectually honest and reasonably sophisticated student of copyright and the Internet would recognize and acknowledge the subtext, and at least grant me the opportunity to actually state my (explicitly reserved) opinion before attacking it.

Now I have run out of fingers (I need to keep one hand free for the coffee). I didn't make any "error in thinking that Google's opt-in or opt-out option has any major relevance for the judicial decision in this case." I never said anything of the sort; I never even reached the "judicial decision" aspect of the case. "Irony" appears to be just like "goldy" and "bronzy" to that particular blawg—but made out of iron.3

I suppose what this boils down to is this: It's ok to disagree with me. I welcome it, in fact; I hadn't thought about Kelly in precisely the terms stated, although after further reflection I think LawPundit's analysis fails because it tries to be contextless. Disagree with what I said, not with what you wanted me to say so that you could attack a straw man or engage in other logical fallacies all too common in the blawgosphere. In short, don't put words in my mouth and then attack those words—especially when I explicitly reserved my opinion on that very topic.4

  1. In the end, this is just one more justification for my longstanding proposal to consolidate all copyright, and indeed all IP, matters in the Federal Circuit. Nobody should have to worry, in the context of the non-locatable Internet, about which circuit might hear a matter to determine whether an action violates a third party's copyright. This is one of the few times that I agree with the Second Circuit's approach in preference to the Ninth Circuit's.
  2. I will eventually get around to the substance. My analysis of the merits differs greatly from LawPundit's, probably because I've actually read the complaint all the way through, have a more than passing knowledge of publishing contracts (both contemporary and historical), and paid attention to non-Internet-based decisions and analysis (e.g., Rosetta Books, among others). In the end, on the merits I believe that Google's position is incorrect and that its program probably does constitute systematic copyright infringement. My criticism of the Author's Guild's complaint is that it asserts the wrong procedural devices and a less-than-convincing substantive theory, and that recent behavior indicates that the Author's Guild is not the best choice of a controlling plaintiff (don't kid yourselves—despite the naming of other individuals, the Guild is controlling this litigation). This is parallel to the aphorism that "bad facts make bad law"; in my experience, so do bad complaints.
  3. Those of you who recognize this particular line will probably also realize that I'm implicitly accusing LawPundit of having the intellectual capacity (or perhaps less than that) of the individual who uttered it, in a humorous fashion. That is a transformative use.
  4. Just in case you hadn't figured it out, I'm offended by the substance and attitude of the post on LawPundit.