Archive for the ‘Copyright’ Category

Ask Dr. Copyright …

Saturday, June 28th, 2014

copyright question Dear Doc:

Ever since you wrote about Aereo, the company with bazillions of tiny TV antennas and video recorders, I have been waiting for them to come to my town, so that I could get a decent television picture (no more of that digital BRAAAAP every 16 seconds unless I stand next to the TV holding up the antenna like some version of Lady Liberty!) What’s this I hear about six old folks deciding to shut down this wonderful service?

Signed,

My Arm Is Getting Really Tired

Dear MAIGRT:

On June 25, by a 6-3 majority, the Supreme Court decided that Aereo’s service violated the copyrights of the broadcasters. Now, I have to say that the Doc is having a hard time understanding this ruling. As I wrote in a past article, it seemed under the decision in the Sony Betamax case, that Aereo was just doing the same thing as having a videotape recorder: allowing a consumer to receive a free, over-the-air broadcast using an antenna, recording it, and playing it back later for herself. The difference was the location of the antenna, recorder, and screen. In 1976, the antenna was on your roof, connected by a 50′ wire to the recorder in your den, which was then connected by a 10′ wire to your TV. For Aereo, the antennas were on a roof somewhere (but not yours), connected to the recorder by the Internet, which was connected to your screen (TV, computer, tablet, or smart phone) also by the Internet. Like phones (which used to use long wires, and now use the Internet) and faxes (same), and movie rentals (your car going to Blockbuster, now Netflix over the Internet)… well, you see where this is going.

Nope! Not so fast. The grandmas and grandpas on our Supreme Court have just stepped onto the porch and yelled at Aereo to stay off their lawns. The majority expressly said that because Aereo’s system appears to be similar to a cable television system, that’s good enough. Never mind that the system does nothing until a subscriber “tunes” in a program, and never mind that each antenna and recording is individual and private. If it looks like a duck…shut it down.

As the Court said, “why should any of these technological differences matter? They concern the behind-the-scenes way in which Aereo delivers television programming to its viewers’ screens. … Why would a subscriber who wishes to watch a television show care much whether images and sounds are delivered to his screen via a large multisubscriber antenna or one small dedicated antenna, whether they arrive instantaneously or after a few seconds’ delay, or whether they are transmitted directly or after a personal copy is made?”

The three dissenting justices think that these things do matter. They term the majority’s approach “Guilt By Resemblance” but as they are the minority, the public is left to wonder what will become of Aereo. The company’s founder, Barry Diller, who also started the Fox Network, said that it’s, “Game Over”.¬† Score another one for big business.

One thing, however, is true: more and more people are “cutting the cord” and refusing to subscribe to cable television services. The next few years will be bumpy, but in the end, innovative services like Aereo are likely to prevail. Broadcast television started out as a public trust, using the public airwaves. Anyone was free to receive the signals. Broadcast television, operated in the public interest is dying. That seems to be fine with the cable companies. It seems to be fine with the FCC. The Doc likes a good book, anyway.

Interested in innovating new services? Talk to the attorneys at LW&H. They receive, store, and respond, without engaging in unauthorized public performances.

– Lawrence A. Husick, Esq.

Ask Dr. Copyright …

Friday, May 30th, 2014

copyright question Dear Doc:

I have heard that the music and movie industries want Congress to add a new part to the Copyright Law, one that would say that it is a violation of a copyright owner’s rights to “make available” a copy of a work, even if the copy is never accessed by anyone. What gives?

Signed,

Marian the Librarian

Dear Marian:

Here at the Gary Conservatory of Copyright, we were taught that copyright protects authors, songwriters, and other creative types from the evils of people taking their work without paying for it (literally, that the creators control the right to copy.) How wrong our professors turned out to be!¬† You see, Congress has been adding more and more “exclusive rights” to the Copyright law for many years. Section 106 of the law (17 U.S.C. ¬∂106) lists six separate rights: (1) to reproduce …; (2) to prepare derivative works …; (3) to distribute … by sale or other transfer of ownership, or by rental, lease, or lending; (4) …to perform the copyrighted work publicly; (5) … to display the copyrighted work publicly; and (6) …to perform … by means of a digital audio transmission. This system of rights has grown up over the years as owners of works saw that technologies made new kinds of value possible. They have gone to Congress with an argument of, “if value, then right” and Congress, sensing that large campaign contributions might be involved, has usually gone right along with them.

Of course, some legal scholars have argued that the Constitutional mandate for Copyright, found in Article I, Section 8, Clause 8, is supposed, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” They have made this argument, most recently to the Supreme Court, in trying to say that you can’t achieve this goal by stretching the term of copyright protection to far beyond the life of the author (since you can’t promote her doing anything about progress after she’s dead.)¬† Sadly, the Supreme Court just punted by saying (if you can believe this) that Congress knew what it was doing when it extended the term to life plus 70 years in the “Mickey Mouse Copyright Extension Act” (for a very complete history, click here)

Now, the recording and movie industries, together with other publishers, want a new right that they claim arises from international treaties that the United States signed a few years ago: the “making available” right. Recent court decisions in cases about Internet file sharing have required that the plaintiffs show that files were actually downloaded from the defendant’s computer (thus running afoul of the “reproduce” and “distribute” rights, if not some of the others.) The trouble, say the RIAA and MPAA, is that they should not have to prove this, because peer-to-peer software, such as BitTorrent, makes it hard to prove. Just putting a file into your shared folder on your hard disk should be enough, according to industry lawyers. Some cases also back them up. In one such case, penalties were handed down for just putting a book on a library shelf, even though there was no evidence that the book was ever checked out, or even taken from the shelf and read.

One of the dangers of doing away with proof of actual downloading is that it may exacerbate the problem of copyright porno-trolls. What, you ask, is a porno-troll???¬† Porno-trolls are companies that produce and own the copyrights to pornographic videos, and that sue people who they believe have downloaded such videos for copyright infringement. They usually sue a number of unnamed defendants (called the “Does” after that well-known defendant, John Doe and his significant other, Jane.) They usually offer to settle for a sum of money, and in return agree to a confidentiality provision that keeps the real name of the Does secret. Since most Does would rather not have their taste in video entertainment made public, this is a very successful business model, and one company, Malibu Media, filed almost one-third of all copyright law suits in the United States last year. For the full story, click here. Some courts defend this practice as legitimate, but other judges have been critical of the scheme.

So, Marian, that is why the Doc went to Washington, DC this month to testify at a Copyright Office meeting about this “making available” change to the copyright law. It’s complicated stuff, but in the end, the Doc thinks that Copyright has gotten out of hand, gone off the rails, and that the inmates are running the copyright asylum. What’s the chance that the Doc’s view will prevail? Hard to say, but at the meeting, there were a handful of folks saying that this needs a lot of careful thought, and dozens of lawyers from record companies, copyright troll companies (see last month’s column on that), the movie industry, and others, all demanding more rights and easier standards for winning law suits. The Doc does not condone any kind of copyright infringement, but when we have a law that is out of step with both ordinary behavior of citizens and with its foundational principles, something’s wrong. The Doc thinks we need to address that, rather than making it more wrong.

Until next month, if you have a copyright question, or get a threatening letter from Malibu Media (oops!), talk to one of the attorneys at LW&H… they eat this stuff for breakfast.

– Lawrence A. Husick, Esq.

“Raging Bull” and “Stairway to Heaven” — Old But Not Forgotten

Friday, May 30th, 2014

Supreme Court This week, the United States Supreme Court issued an opinion of great importance to those wishing to enforce their copyrights. In Petrella v. Metro-Goldwyn-Mayer, Inc., the Supreme Court clarified confusion among lower courts about whether the doctrine of laches (also known as unreasonable delay) could bar a lawsuit for copyright infringement.¬† While the court’s opinion may read to lay persons as legal mumbo-jumbo, it is of significant importance to copyright owners.

In Petrella, the copyright owners of the screenplay for “Raging Bull,” the movie directed by Martin Scorsese in 1980, sued MGM for damages resulting from the studio’s infringement.¬† Surely, you may ask, MGM had rights to the screenplay.¬† Well, at one time it did.¬† Petrella’s father and his co-author boxer, Jake LaMotta. assigned the rights to MGM, which registered the copyright in 1980.¬† However, when Petrella died in 1981, by law, the rights reverted back to his daughter.¬† MGM failed to obtain the rights after that event.¬† Petrella’s daughter waited until 2009 to sue the studio.¬† Because of her delay, MGM argued that her lawsuit is barred by the doctrine of “laches” or unreasonable delay.¬† The lower courts agreed but not the Supreme Court.¬† The Supremes held that laches was irrelevant to infringement, which is controlled by a three-year statue of limitations, and Petrella had a right to sue for any infringements – of which there were many – that occurred within the three-year period preceding her filing of the lawsuit.

During the same week that the Supreme Court handed down this decision, we also learned that the estate of Randy California, guitarist in the band Spirit, is suing Led Zeppelin for copyright infringement, claiming that the one of the greatest rock songs ever written, “Stairway to Heaven” uses riffs that California wrote for an instrumental called “Taurus.”¬† Stairway to Heaven was written in 1970, two years after Led Zeppelin and Spirit “shared stages” together during their U.S. tour.¬† Regardless of the lawsuits merits, it would appear that the estate of Randy California unreasonably delayed its lawsuit, particularly since it has been bandied about for years that Jimmy Page, the author of Stairway to Heaven, stole the opening riff from Randy California.¬† After Petrella, however, the 40 year delay does not appear to be a hindrance.

– Adam G. Garson, Esq.

Ask Dr. Copyright …

Wednesday, April 30th, 2014

Ask Dr. Copyright

copyright question Dear Doc:

I write the songs that make the whole world sing. Unfortunately, with all that songwriting, I really don’t have the time to listen to every radio station that plays my songs, every online store that sells them, and every band, chorus, glee club, and lounge act that covers them so that I can collect royalties. I have heard that there are organizations that will do all of that for me, and even sue people who don’t pay up. What gives? I thought that “trolls” were the bad guys, but this sounds like just what us musicians need in order to make a living.

Barry M.

Dear BM:

The organizations you’re referring to are called “Artists’ Rights Organizations” (AROs) and there are three big ones: Broadcast Music Inc. (BMI), American Society of Composers, Authors and Publishers (ASCAP) and the Harry Fox Agency (HFA). Each one of these companies is a nonprofit that licenses, collects, and distributes royalties on behalf of musical copyright owners. BMI and ASCAP license public performance rights to venues such as concert halls, bars, restaurants, stores, etc.. HFA licenses “mechanical” rights, which include the right to make CDs, records, tapes, and certain digital products. In addition, there are more than 200 similar organizations worldwide, and many have reciprocal agreements with one or more of the US-based AROs. Not to confuse you more, but record labels also license rights, and they have their own organization, the Recording Industry Association of America (RIAA).

It’s interesting to note that none of these companies writes any music at all! Nor do they arrange it or perform it. They just collect the royalties, and when someone refuses to pay up, they bring law suits, relying on the Copyright Law (17 U.S.C. ¬ß101, et seq.) which provides, among other things, that they can collect attorneys’ fees, and ask for statutory damages of up to $150,000 per song played or copied. But, I hear you shout, “Last month, Doc, you told us that this is pretty much exactly what companies that are being called “patent trolls” do with patented inventions! They don’t invent widgets, and they don’t make the widgets…they just offer to license patent rights, and when someone refuses to pay the royalty, they bring a law suit in which they demand a ‘reasonable royalty’”.

Yep…exactly! So there you have it. AROs are respected for the work that they do to help musicians make a living by licensing rights, collecting royalties, paying artists, and policing the use of the rights by using the legal system. They are important because, to quote the ASCAP website, “We know that there are many steps between creation and compensation. A music creator is like a small business, and we exist to ensure that ASCAP members are paid promptly and fairly when their compositions are performed publicly.” Now, to quote one “patent troll” website, “Patent licensing can be an effective and efficient way to maximize the profit potential of a patent. A patent license agreement grants a third-party user of the invention (an infringer) permission to practice the patented invention in exchange for remuneration.”

So there you have it. Patent trolls: BAD. Copyright trolls: GOOD.  Go figure!

If you have a question about how to license your intellectual property, give one of the attorneys at LW&H a call. They’re not trolls, but they do understand how to help creative people protect and profit from their creations, whether they are widgets, music, or some other wonderful new thing that will be the next hit.

Lawrence Husick, Esq.

Ask Dr. Copyright …

Sunday, March 30th, 2014

copyright question Dear Doc:

A magazine editor has told me that if a magazine releases an issue before its copyright date, the magazine will lose its rights. I can’t believe that this is the law. Please tell me who’s right.

Signed,

Confused Author

Dear Confused:

You’re less confused than your editor! Under international copyright law, known as the Berne Convention (no, it’s not a meeting of arsonists) a “work” is protected by copyright automatically from the moment it is created. There are no complicated rules. Most countries, including the United States, are a part of this treaty, so copyright protection extends to most of the world in this way.

Each country is still allowed to create its own rules in addition to those of the treaty, so, for example, in the United States, even though you have an automatic copyright, you must register your work in the Copyright Office of the Library of Congress in order to enforce your rights in court, and there are other benefits of early registration as well. Registration is a simple process, and the fee is quite low. You may not, however, just send yourself a registered letter! (That is as legally effective as shaking a rattle to cure the flu.)

Under U.S. law, you may put a copyright notice on your work to show the world that you have rights. The law says that this notice is ¬©, the year of creation or publication, and some identifier of the copyright owner. You may also use the word “Copyright” or the abbreviation “Copr.” You may NOT use a ( C ) – that’s not part of the law. Under the laws of some countries, it also helps to use the phrase, “All Rights Reserved.”

Copyright extends to more than just written works, as well. You can protect music, video, computer code, works of visual art, and even performances. Each type of work has its own rules and registration forms, so be sure to check www.copyright.gov and with your IP counsel for the right information. Registering copyrights should be an automatic part of the business process for just about every business.

When it comes to simple and effective protection of intellectual property, you just can’t beat copyright. By now, the Doc knows that you have lots more questions. Just call one of the attorneys at LW&H. They do copyright, trademark, patent, trade secrets, and lots of other stuff to protect rights of creative endeavors.

The Doc

–Lawrence A. Husick, Esq.

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

Friday, 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.

buckles

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.

hookah

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 …

Friday, 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???

Signed,

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.

Ask Dr. Copyright …

Tuesday, December 31st, 2013

copyright question Dear Doc:

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

Signed,

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 Dilandau.eu, zippyshare.com, and filestube.com. 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 ….

Tuesday, 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.

Ask Dr. Copyright …

Wednesday, November 27th, 2013

copyright question Dear Doc:

While searching online, I came across thousands of books – not on Amazon.com, 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?

Sincerely,

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.