06 December 2011

Predator-Prey Relationships

Just remember: A tree's natural enemy is not some woodland creature, but a lawyer. Unless, that is, you're talking about a lawyer who is also a woodland creature, like a weasel who passes the bar exam.

  • GBS Update: Yes, I know I'm late on describing the legal theory of the HathiTrust complaint, and its flaws. Literally as I was getting ready to post the first entry, I got an outside consult on the matter, so I delayed the post to finish up the consult. And in the meantime:

    • The Open Book Alliance (a Google Book System "competitor" partially led by Micro$oft) has used the Copyright Office's triennial review of "technological protection measures" (required under chapter 12 of the Copyright Act) to object to Google's system for keeping non-Google-affiliates (like OBA members) from accessing even public-domain works that are otherwise available to libraries under the GBS.
    • The HathiTrust defendants have answered the complaint with a badly-conceived laundry list of alleged "defenses" and "defects" (pages 22–24) that will eventually kill off a small forest, but largely hides the strategy (and sheds little light on the copyright issues involved). Frankly, the best defenses available and pled were all based upon the procedural and constitutional jungle already discussed...
    • Google has announced its intention to file a motion to dismiss later this month in the GBS matter itself. This will presumably rely largely upon allegations of fair use under § 107... which is an inherently flawed strategy, and procedurally improper. Section 107 — however badly worded — is not properly decided on a motion to dismiss; it is, instead, a fact-based defense that could be decided "on the pleadings" (Fed. R. Civ. P. 12(c)), on summary judgment (Fed. R. Civ. P. 56), or at trial... but not, as a matter of law, based solely upon the complaint's failure to state a claim (Fed. R. Civ. P. 12(b)(6)). That's because all allegations in the complaint must be taken in the light most favorable to the plaintiff, even under various heightened pleading standards — and there are no allegations of fact in the complaint sufficient to resolve the four-factor test required by the § 107 defense.

      So, then, why would Google move to dismiss the complaint when it can't win? Well, for one thing, because judges in the Second Circuit (albeit not Judge Chin) have a long history of treating class-action motions to dismiss as motions for judgment on the pleadings... even though Rule 12(c) explicitly says judgment on the pleadings is appropriate only after the pleadings have been closed. For another, this is part of the process of educating the judge on the issues, in a general sense; that's not really necessary in this matter, though, given the extensive ruling that Judge Chin has already made. Most importantly, though, it delays things — considerably. (Not to mention runs up law firm billings.)

  • The European Commission has announced a formal antitrust investigation of European e-book sales and pricing. Given that somewhere between 80 and 85% of these formal investigations result in formal charges by the Commission — and that well over 90% of the ones that become formal result in changes in behavior designed to blunt any such charges — I expect things to get more... interesting on the e-book arena in Europe very, very shortly. That will spill over to the US at some point, too.
  • No profits to be found in H'wood, right? Is anybody really surprised? Those who've been paying attention to publishing contracts imposing net-receipts royalties for e-books (see the previous item!) will start wondering if a movement of bookkeepers from Los Angeles to New York, within the entertainment conglomerates, might be in the offing. Or has already happened.