Ask Dr. Copyright …

February 28th, 2014

copyright question Dear Doc:

Last month, you promised that you’d continue your explanation of patents and copyrights with a rant about patents and trolls. So…? What, exactly, do you have against trolls, other than the fact that they live under bridges and threaten goats?


Been Waiting a Month

Dear BWaM:

OK. So as not to disappoint, here goes!

The press has been overflowing for the past few years with breathless articles about evil “patent trolls”.  You see, back in the late 1990s semiconductor giant Intel was being sued for patent infringement by many patent owners. The company’s lawyer, Peter Detkin, called one of the lawyers representing the patent owners a “patent extortionist” in an article about the company, but others at Intel did not like that term. There was a contest, and Detkin, Anne Gundelfinger and Mark Davis somehow came up with “patent troll” as an alternative.

Remember the story of how the trolls hid under a bridge that they had not built, but demanded a toll from everyone who crossed?  Me neither. The original Norwegian folk tale is completely silent on who built the bridge, but it’s pretty clear that the goats had not done so, right? Goats lack opposable thumbs.  And as there is no other character in the story…but I digress. The troll term struck a chord, and came to mean a company that asserted patents on technology that they had not invented, seeking royalties. Such companies are clearly evil villains, because they don’t invent anything, and they sue other people using patents that they buy from inventors. Boo! Hiss! The media climbed on board, and there have been thousands of publications decrying the “rent seeking behavior” of the trolls. For a very entertaining overview, click here.

Fast forward to 2014, and you have bills in Congress and the President of these United States promising to do something to stop the trolls because they hurt innovation! But…do they really? Let’s think about this.

Suppose you passed a law that says that anyone who owns a piece of ground  and who built a building there could do only one of two things: occupy it himself, or occupy part of it, and rent the other part out. He can sell the building, but only to someone who will only occupy it – and never rent it out, because otherwise, the new owner would not be the one who built the building – he would only be seeking to collect rent.  He can’t move out and rent the entire building because then he would not be using what he had built, only seeking to collect rent. Oh, and the original owner would not be allowed to hire a manager by promising to pay a portion of the rent collected, and he can’t buy the building next door, since he didn’t build it. Forget real estate investment trusts that buy properties to build a portfolio – they don’t build things…they must be evil too.

So under this new law, what is a property worth? What incentive does the land-owner have to build his building if he has to live in it until he can sell it to someone who can only live in it? Easy – you’ve just reduced the value of almost every property in America by a huge amount. No one can be a real estate investor in the resale market. Period. So why would our country want to do the same thing to inventors, by limiting their ability to sell their patents? Because big companies that infringe patents are sick and tired of getting caught with their hands in the cookie jar, and can afford to create a fable and lots of press to convince us that their problem is actually our problem. Congress has taken their money that comes wrapped in that same fable, and the President knows a good story when he hears it.

It has been pointed out that it costs millions of dollars to defend against a patent infringement law suit, and that these suits take years to work their way through the courts. True. But the same is true of other high-stakes business litigation in many fields. It’s not only the “trolls” who suffer from our less than efficient court system: Apple and Samsung have been battling for many years, and there is no end in sight. Few call either of these companies patent trolls (some surely do), but that doesn’t stop anyone from complaining that these suits are harmful. It’s just strange that these same complainers seem to be perfectly happy to have and use the innovations that are supposed to be protected by patents, while never bothering to ask what the world would look like if nobody could raise capital by having effective patents in the first place. (For a great explanation, read William Rosen’s The Most Powerful Idea in the World)

As a registered patent attorney who has represented all kinds of inventors for more than thirty years (from garage inventors to the largest multinational corporations) and has been involved in patent licensing and sale for all of that time, the Doc can simply say that there is another, more honest definition of “patent troll” — one given by Professor R. Polk Wagner of the University of Pennsylvania School of Law, who said that a patent troll is simply anyone who would dare to sue ME for patent infringement.

So there you have it. The same old story: don’t believe everything you read on the Internet…World War I started that way.

To get the straight story on intellectual property issues, be sure to ask the attorneys at LW&H. For reasons that nobody can explain, they actually enjoy thinking about this stuff.

Until next month,

The Doc.

– Lawrence Husick, Esq.

How Sweet it is…The Candy Crush Saga

February 28th, 2014

Have you ever played the mobile app game, “Candy Crush Saga” by, Ltd. (“King”)?  Are you addicted to it?  Not me, you say.  More power to you because by some reports King earns a million dollars a day from users who actually pay for the chance to continue using this “free” game.  The way it works is that after so many moves or lives, the player has to wait a period of time before he or she can play again.  Some people — more than a million per day — can’t wait and opt to spend .99 to avoid the delayed gratification.  A brilliant business model!

In its quest to rule the mobile device game world, King filed a trademark application for the term CANDY, identifying software related products, clothing (say spin-offs), and educational services (say what?).  You might ask how in the world a software gaming company can claim rights to the term “candy”.  What about Hasbro’s Candy Land and the myriad other candy themed games?   Apparently, the U.S. Patent and Trademark Office (“PTO”) did not see it that way.  No one else had applied for CANDY in the same or related product space and it was King’s to take. And so the PTO noticed the trademark for publication (the penultimate step in the registration process).  Apple, Inc. soon began enforcing King’s trademark rights in its App Store, demanding that developers remove copycat apps as well any game apps using the term “candy”.  King also embarked on a campaign to enforce its trademark rights in CANDY and the term SAGA.

Then the hue and cry!  Across the blogosphere, software developers called foul by the PTO for approving King’s registration of CANDY and criticized the filings as “overreaching” and “predatory.”  Independent game developers were so incensed that they created an online event dubbed “Candy Jam“, inviting developers to create games that use the word “candy.”  Participants created more than 450 games!  Then, two events occurred.  King announced that it was going public with a $500 million dollar initial public offering and, lo and behold, it voluntarily abandoned its trademark registration application for CANDY.  King CEO Riccardo Zacconi repented, saying that his company was “not trying to control the world’s use of the word ‘Candy’…only trying to prevent other from creating games that unfairly capitalize on our success.”  In another statement, King noted that its action did not affect its European registration for CANDY and that it would continue to protect its trademark rights.

So why would King abandon its U.S. trademark application?  A little controversy over a trademark should not deter enforcement of intellectual property rights. True, but the stakes here are enormous.  Apparently, game developers stirred the pot enough to cause King to worry about  the negative consequences of the trademark filing and enforcement furor to its $500 million dollar IPO.  To calm the storm of public opinion, it abandoned its trademark claim to CANDY.  The “saga” demonstrates the power of public opinion when trademark owners are perceived to overreach, particularly when large amounts of cash are at stake.  Sweet!

– Adam G. Garson, Esq.

The Supreme Court Weighs In…

February 28th, 2014

Supreme Court SealWhen the Supreme Court decides a case, the result is binding on all of us.  The Court will be busy with patent, copyright and trademark cases over the next few months.  The following are a few highlights:

1.  Are computer-implemented inventions patentable?  Particularly, is a general purpose computer programmed to perform a specific function patentable?  Alice Corp. v CLS Bank International, No. 13-298 will revisit this question.  This case has great importance to software inventors and persons accused of infringing software patents.

2. Is re-broadcast of a TV program in the form of on-line streaming to paying subscribers a copyright violation?  On the one hand, the broadcaster released the program to the world when it sent the program out over the air.  On the other hand, the broadcaster still owns the copyright.  American Broadcasting Companies v Aereo, No. 13-461 is the pending Supreme Court case on the subject.  See our previous article.

3. Is a person liable for patent infringement where that person induces two or more people acting in concert to perform all of the steps of a method patent when no one person infringes the patent?  This issue is crucial for, say, Internet-enabled inventions where different steps in the invention can be performed by different parties and even on different continents.  Limelight Networks v Akamai Technologies, No. 12-786, will answer this question.

4. Can a person be sued by a private party under  trademark law for false advertising for a product that is pervasively regulated under the Food, Drug and Cosmetic Act?  This case will resolve a tension between two different laws.  The case is POM Wonderful v The Coca-Cola Company, 12-761.

Stay tuned.

– Robert Yarbrough, Esq.

Lamps, Belt Buckles, and Hookahs — the Limits of Copyright Protection

January 31st, 2014

Copyright Question

You may already know by reading this newsletter that utilitarian objects are typically not protected by copyright law.  Fashion designs are but one controversial example.  Here’s a little more history.  In the 1950′s, the Supreme Court of the United States in Mazer v. Stein, held that statuettes incorporated into lamps – unarguably utilitarian objects -  were the proper subject of copyright protection in so much as the artistic component (the statue) was separable from its utilitarian function (the lamp).

lamp statue

Of course, it’s not always easy to separate the artistic from the utilitarian components of an object.  The U.S. Court of Appeals wrestled with the problem in Kieselstein-Cord v. Accessories by Pearl, Inc., when it considered whether artistically embellished belt buckles were subject to copyright protection.  The court recognized that although belt buckles were “merely useful objects,” the decorative features characteristic of the buckles being litigated rendered them something more than just useful objects.  In fact, the court wrote that the original ornamentation of the buckles was conceptually separable from their useful qualities and, therefore, deserved copyright protection.


This conclusion does not apply to any belt buckle and probably not the one your wearing unless it meets the basic requirement of originality and creativity inherent in a work of art.

Fast forward a few decades and the question arises again but this time between makers of smoking paraphernalia (presumably tobacco but times are a changing). In this case –  Inhale, Inc. v. Starbuzz Tobacco — Inhale sued Starbuzz for infringing its copyright in the distinctive shape of its skull and cross-bones adorned hookah water container.


The question was whether Inhale owned a valid copyright.  The court, agreeing with the defendant, thought not.  The issue again was whether the artistic work was either physically or conceptually separable from the utilitarian nature of the piece.  Since both parties had to agree that a hookah bottle was a “useful article,” the court looked to whether there was “conceptual” separability.  The court relied in part on a previous decision that the shape of a vodka bottle was not separable from its utilitarian features (Ets-Hokins v. Skyy Spirits Inc.).  The judge wrote that even though the water bottle had a distinctive shape – much like a sculpture – its shape could not be independent of its utilitarian function “because the shape accomplishes the function” (i.e., holding water).  So, no copyright protection and, even worse, the court awarded the defendant over a $100,000 in attorneys fees for having to defend a frivolous lawsuit.  Put that in your pipe and smoke it…..

– Adam G. Garson, Esq.

Ask Dr. Copyright …

January 31st, 2014

copyright question Dear Doc:

It seems that over the years, patents and copyrights have been in some kind of “Freaky Friday” accident, and have switched bodies. It used to be that patent was the big dog in intellectual property, but now, even big companies like Apple that win patent law suits can’t get the courts to stop infringers and win damages that are so tiny that nobody really cares. Copyrights, on the other hand, used to be about as valuable as the paper they were written on, but now, huge verdicts that put whole companies out of business are the norm.  What gives???


Patently Confused

Dear PC:

You’ve just given the Doc a 64 foot tall soapbox here. So much so that he will have to split the answer up into multiple columns. So here goes…

You see, copyright and patent are both in the US Constitution (Const. Art. I, Sec. 7, Cl. 7 for anyone who cares.) They are the only powers in the Constitution that have an actual reason listed in the document: to promote the progress of science and the useful arts. Back then, by the way, “science” just meant knowledge, while “useful arts” were what we would today call technology. So copyright (literally the right to copy) was a 14 year exclusive on making copies of your writings, and patents protected inventions. So far, so good. But then, Congress fell victim to what the military calls “mission creep.” They started to expand these rights, both in what they protected and for how long.

Over the years since about 1976, Congress has lengthened copyright time and again, so that instead of 14 years, it now lasts for the life of the author, plus 70 years, or for 95 years from publication or 120 years from creation whichever is shorter, if the work is not registered by the author under her own name (works for hire, anonymous or pseudonymous.) What’s more, in order to benefit from the copyright law, you used to have to put a notice on your work (© 2014 Dr. Copyright) and register it in the Library of Congress. Now, copyright is automatic for everything you write down (or type, or record…) so your shopping list, Instagram photo, Facebook post, or SnapChat are all automatically protected. This has created a minefield where just about anything you see is under copyright for as long as you’re likely to be alive.

Now add in the terribly inefficient US legal system, where just setting foot in a court room costs tens of thousands of dollars, and you can see what has resulted. Finally, add in digital technology that makes it easy (and culturally acceptable) to copy just about anything with one click of a mouse, and you have a perfect storm of copyright.

Many commentators have suggested that because the Constitution says that you can’t promote the progress of knowledge after an author is dead (she’s not writing much, is she?) and because the Constitution specifically says that patents and copyrights are to be for “limited times” we should rethink this mess.  Yale Law Fellow Derek Khanna has made three suggestions: shorten copyright back to a reasonable length; get rid of “statutory damages” which allow a judge to award up to $150,000 for downloading just one song, video, or photo, and; recognize that copyright should not regulate technologies such as whether you are allowed to unlock your mobile telephone.

There are many other changes that the Doc would love to see.  Unfortunately, the law that stretched out copyrights to 95 years was called the “Mickey Mouse Copyright Term Extension Act” because Disney gave a lot of money to Representatives in Congress to keep Mickey under copyright just before his original one ran out. We are unlikely to see this Congress or any other go against the movie and music industry in our lifetimes, or for 70 years after we’re dead and gone.

Got another intellectual property law question that makes you hot under the collar? Ask the attorneys at LW&H. They’d love to discuss this stuff, especially at your next party or corporate management meeting, and even more so with an adult beverage in hand.

The “Doc”

“Next month…the Doc rants about patents and trolls…

– Lawrence A. Husick, Esq.

State of the Union

January 31st, 2014

In his state of the union speech, President Obama said:  “And let’s pass a patent reform bill that allows our businesses to stay focused on innovation, not costly, needless litigation.”

Both houses of Congress are well on the way to enacting new patent legislation, in part as a  reaction to the bullying of small businesses by MPHJ Technologies through demand letters alleging patent infringement.

H.R. 3309, entitled ‘Innovation Act,’ was introduced in the Republican-controlled House of Representatives on October 23, 2013 and passed the House on December 5, 2013 with a majority vote of both parties.   H.R. 3309 has now been referred to the Senate Judiciary Committee.  The stated purpose of H.R. 3309 is to curb abusive patent infringement litigation, particularly by ‘patent asserting entities’ that own patents but do not produce products.  H.R. 3309 includes several changes, but the one that is most eye-popping  is that the plaintiff must pay the defendant’s expenses including attorney’s fees if the court determines that infringement claims are not reasonably justified or are made in bad faith.

The cost-shifting provisions of H.R. 3309 are radical.  In the U.S., each party to litigation generally bears its own costs.  H.R. 3309 would adopt the standards of the Equal Access to Justice Act, 28 U.S.C.§2412(d)(1)(A), and apply those standards to private patent litigants.  The Equal Access to Justice Act applies to payment of costs and attorneys fees by the Federal government.   In a civil suit by or against small businesses or individuals of limited means, the Federal government is liable for cost and attorneys fees UNLESS the government demonstrates that its position in the litigation was ‘substantially justified.’

H.R. 3309 would certainly avoid the defendant’s costs of patent infringement litigation, but it would also severely limit the value of inventions and patents.   If H.R. 3309 becomes law, only the very brave, the very foolish, or the very rich will initiate patent infringement litigation.

S. 1720 was introduced on November 18, 2013 by Democratic Sen. Patrick Leahey, Chairman of the Senate Judiciary Committee.  S. 1720 includes some of the procedural improvements of H.R. 3309, but excludes the cost-shifting provisions.   S.1720 takes direct aim at the practices of MPHJ Technologies by adding that the Federal Trade Commission will police false or misleading demand letters.  We expect that Sen. Leahey’s version of the bill is the one that will advance from Sen. Leahey’s committee.

– Robert Yarbrough, Esq.

Ask Dr. Copyright …

December 31st, 2013

copyright question Dear Doc:

Well, 2013 has come and gone! Did anything happen in copyright law this year?


Way too much time on my hands.

Dear Sir:

How DARE you! Have you not been reading the “Doc” every issue of this wonderful and scholarly newsletter? So much happened this year that the “Doc” has scarcely had time to chronicle even a small portion thereof. Here, in brief, is what the “Doc” did not have time to opine upon in 2013:

  • It may have been twenty years ago today that Sgt. Pepper taught the band to play, but 50 years ago, the lads from Liverpool entered the studio and produced “Please Please Me” (something the “Doc” says to Mrs. Doc every night, but I digress…) Now, because of changes in European copyright law, the previously-unreleased recordings from those sessions are being sold – not to increase Sir Paul’s vast fortune, but, rather, to prevent the recordings from falling into the public domain where anyone would be able to copy them. Publishing them now locks them away in the copyright vault for another 20 years. Are these recordings any good? How would the “Doc” know? I’m an intellectual property lawyer, Jim, not a music critic! Stay tuned for lots more recordings of the Beatles and other bands that were previously thought inferior to be released in the name of copyright in 2014 and beyond.  If you want to learn more about nuts and bolts of this trend, see my colleague’s most scholarly article on the subject below.
  • Under the Digital Millennium Copyright Act, a rights owner may request that a link or file be “taken down” from the Internet if it infringes copyright. In 2013, web site TorrentFreak notes, “copyright holders have asked Google to remove more than 200,000,000 allegedly infringing links from its search engine…” They further explained, “that means Google is now removing nine allegedly-infringing URLs from its indexes every single second of every single day.” That’s more than twice the rate of last year. The organizations that file the most requests are exactly those you expect: companies working on behalf of the music and film industries. And they most often go after sites such as,, and Takedown requests take an average of six hours for Google to process, according to the search giant. This, by the way, is LOTS quicker than when Mrs. Doc requested takedown of the Christmas lights, but again, I digress…
  • Finally, although not strictly copyright, this year we learned that the National Security Agency (NSA) vacuums up, er, “collects” just about everything the “Doc” (and every other person on the planet) puts on the Internet, and saves a copy in a giant hard disk drive in Utah. Nobody has thought to sue the NSA for copyright infringement for all that secret copying (hey, the “Doc” may be on to something, so the ACLU might want to send a carrier pigeon message to the Doc.)

Here’s wishing you and yours a very proprietary 2014. And remember, if you have a question about intellectual property law, you should ask the attorneys at LW&H – they do that sort of thing, and strangely, they seem to enjoy it.

The “Doc”

– Lawrence A. Husick, Esq.

Copyright Law Forces Beatles’ Hand ….

December 31st, 2013

It’s been decades since the British Invasion and believe it or not, the Beatles are still releasing music.  Well, it’s not “new” music but familiar tracks, which had not seen the light of day (although many have been available for years as bootlegs).  These include four extra versions of “She Loves You,” five versions of “A Taste of Honey”, three outtakes of “There’s a Place, ” demos and BBC radio performances.

So, why did they release the music?  The folks at Apple Corps, Ltd. aren’t saying but it’s more likely than not that copyright law is the driving force.  Under current European copyright law, if the Beatles didn’t release the material, Apple Corps would lose their copyrights over the full corpus of the unreleased works.  Here’s why.  In Europe, copyright law secured  rights in published sound recordings for 50 years after the date of release. For many of the early Beatle recordings, that anniversary has passed or is approaching. In November, a new law promulgated by the European Union extended the term for 70 years from the date of original release.  Unreleased music, however, reverts to the public domain after 50 years.   So Apple Corp was compelled to release the music or lose its rights.   Additional measures in the Directive also implemented by the Regulations include:

  • that record producers set aside 20% of all revenues from the sales of sound recordings for a fund for session artists;
  • that if a record label is not commercially releasing a track that is over 50 years old, then the performers can request that the rights in the performance revert to them – a ‘use it or lose it’ clause
  • a ‘clean slate’ provision that prevents the producer from deducting advance payments from royalties after 50 years; and
  • alignment of the term of protection for the music and lyrics in a musical composition.

If you’re interested in learning more, visit this site.

Under U.S. Law the duration of copyright may be even more favorable.  For published recordings made before February 15, 1972, all such recordings will enter the public domain on February 15, 2067, in approximately 53 years.  However, if a record company publishes a previously unpublished recording today, the terms would be 70 years after death of author, or if it is a work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation.  So the result could be even more generous than the duration granted by European copyright law.

As a result of the new European law, we may begin to see is a cycle of new releases of old material by a number of artists for no other purpose than to extend the copyrights in overseas markets.  Recent releases by Bob Dylan appear to confirm this trend.

Adam G. Garson, Esq.

Inducing Patent Infringement: New Case May Reach the U.S. Supreme Court

December 31st, 2013

The ‘claims’ of a patent dictate the rights of the patent owner and define the property created by the patent.

Where the invention is something physical, such as a machine or a drug, it is relatively easy to show infringement – the patent owner must show that the infringer made, used, or sold the machine or drug that meets all of the elements of a claim.   Alternatively, the infringer is liable if the patent owner can show that the infringer ‘induced;’ that is, caused, someone else to make, use or sell the machine or drug and that other person actually did make, use or sell the machine or drug.  The requirement that someone must actually make, use or sell the invention as claimed works well for patents to machines and drugs.

An injustice occurs when the claim addresses a method that can be performed by more than one person.  This situation is common for Internet inventions.  Consider the following (highly hypothetical) claim. A method of distributing content over the Internet comprising:

(a) uploading a video by a content provider to a server;

(b) modifying a website to instruct browsers to access the server to download the video.

In this hypothetical claim, the actions of two different persons can perform the two steps – the content provider and the person who modifies the website.   If two different persons perform the two tasks, then the patent owner cannot produce any one person who performed both steps.  There is no one person who ‘directly’ infringed the patent claim.  As a result, if a copyist can split a patented method into pieces and have someone else perform another piece, then the copyist is not an infringer and the patent is unenforceable.

This situation has been a thorn in the side of Internet inventors.  The Court of Appeals of the Federal Circuit decided to do something about it in the case of Akamai Technologies v Limelight Networks.  In that case, the Federal Circuit concluded that Limelight Networks performed some of the steps of the patent claim and induced someone else to perform the remaining steps.  The Federal Circuit held that Limelight was liable for infringement even if no one person performed all of the steps of the patent claim.

The joy of Internet inventors was short lived.  Limelight asked the Supreme Court to hear an appeal and the Supreme Court asked the Federal government for advice on whether the Court should take the case.  On December 10, 2013 the Federal government filed its brief saying that the Court should hear the case and should overturn the result.  It now is likely that the Supreme Court will hear the appeal.   The Court likely will issue a decision in late 2014 or 2015.

– Robert Yarbrough, Esq.

Ask Dr. Copyright …

November 27th, 2013

copyright question Dear Doc:

While searching online, I came across thousands of books – not on, but on Google! I could actually read the pages of those books because the words matched what I had searched, and most of the books were scanned right from the library. That’s cool – and really useful, but I thought that Google couldn’t just scan every book in the world because they were sued by a bunch of authors.  What gives?


A Perplexed Searcher

Dear Perp:

You’re right! In 2004 Google started the Google Books Project, working with publishers and some of the world’s largest university and public libraries. Google started to scan every page of every book it could get its hands on.  Here’s the way Google described the effort,

“At the end of the Middle Ages, in a small town in the Rhine Valley, an unassuming metalworker tinkered with a rickety wine press, metal alloys and oil-based ink. The result of his labors was an invention that took the world’s information and made it exponentially more accessible and useful. Six centuries later, we’re seeing the same kind of innovation in the way we access information. Every day, with a few keystrokes on a computer, people are doing more than simply visiting their favorite web pages. Like Gutenberg, they are expanding the frontiers of human knowledge.”

The Authors’ Guild and publishers sued almost instantly (Authors Guild v. Google, 1:05-cv-08136.) (After all, this IS America.) They claimed that Google had no right to make a digital copy of their books, and that it could only scan books that were in the public domain (books published before the mid-1920s.) That case has been in the courts since 2005. The publishers settled, allowing Google to scan away, but things remained stalled because the authors disagreed. They demanded $750 per book scanned.

It’s important to note that although Google was making a digital copy of each book, you can’t just read the book on line. Google searches show a page that is a super version of one of those old card catalog things (you know, the ones you had to learn to use in elementary school, and that libraries have thrown away now that the “card catalog” is all on computer?) Sometimes, Google shows where you can buy or borrow the book, and a page or two, but not the whole book.

Earlier this month, a federal judge ruled that Google’s scanning is “fair use” under the Copyright Law.  It may have taken him almost eight years, but this is a big thing.  Judge Denny Chin, formerly of the U.S. District Court for the Southern District of New York, dismissed the lawsuit against Google.

Judge Chin wrote in his ruling: “Google Books provides a new and efficient way for readers and researchers to find books. It makes tens of millions of books searchable by words and phrases.” Google Books has become “an essential research tool, as it helps librarians identify and find research sources, it makes the process of interlibrary lending more efficient, and it facilitates finding and checking citations.”  “Traditionally underserved populations will benefit as they gain knowledge of and access to far more books,” he wrote. “Google Books provides print-disabled individuals with the potential to search for books and read them in a format that is compatible with text enlargement software, text-to-speech screen access software, and Braille devices.”

The Authors Guild said it is “disappointed” in Chin’s decision and plans to appeal it.

“This case presents a fundamental challenge to copyright that merits review by a higher court,” Paul Aiken, the group’s executive director, said in a statement. “Google made unauthorized digital editions of nearly all of the world’s valuable copyright-protected literature and profits from displaying those works. In our view, such mass digitization and exploitation far exceeds the bounds of the fair use defense.”

Bottom line: the lawyers will continue to make money, and you will have to wait a while longer to see if Google will be permitted to scan those hundreds of millions of books you have never read.  Hang in there.

Have a question about what you’re legally permitted to copy, or any other intellectual property issue? Ask one of the attorneys at LW&H – they dream about this stuff (and that’s a really creepy thing.)

The “Doc”

– Lawrence A. Husick, Esq.