Mass Law Blog

As expected, the proposed Google Book Search settlement has led to a lot of scrutiny, criticism and questions. Here is a link to the 125 page Settlement Agreement(without attachments; pdf). Here is a link to the page that holds the full agreement which, with attachments, is over 300 pages long).

Both Larry Lessig (“IMHO, this is a good deal that could be the basis for something really fantastic”) and Wade Roush(“Book Search settlement contains some major disappointments”) have taken a first crack at trying to decipher this settlement (Roush – “exhaustive, labyrinthine”) and figure out who, amongst the many stakeholders, are the winners and losers.

Here is a particularly interesting paragraph from Wade Roush’s article:

. . . [T]he devil . . . is in the details. If you read the agreement, you’ll see that it restricts each public library to exactly one Google terminal. Tens of millions of books online—but at any given moment, no more than 16,543 people are allowed to read them without paying. (That’s how many public libraries and branches there are in the United States, according to the American Library Association—one for every 18,500 Americans.)

So, America’s librarians will be hearing these words for generations to come: “Excuse me, where is the Google Terminal?”  Or perhaps the librarians will receive phone calls asking: “Hi, how long is the line for the Google Terminal?”

Much more to follow.

[n.b. It appears that Harvard is unhappy with the terms of the proposed agreement, and is withdrawing in-part from its participation in the scanning project]

Wade Roush (technology journalist and chief correspondent at Xconomy) wrote an extraordinary article in the MIT Technology Review in 2007 which I’ve had in my “must re-read” pile for a while. Recently I picked it up and noticed that the article is accessible in full on the Technology Review web site (free registration required).

Here is a brief excerpt from the article, modestly entitled Second Earth:

[w]ithin 10 to 20 years–roughly the same time it took for the Web to become what it is now–something much bigger than either of these alternatives [Second Earth or Google Earth] may emerge: a true Metaverse. In Neal Stephenson’s 1992 novel Snow Crash, a classic of the dystopian “cyberpunk” genre, the Metaverse was a planet-size virtual city that could hold up to 120 million avatars, each representing someone in search of entertainment, trade, or social contact. The Metaverse that’s really on the way, some experts believe, will resemble Stephenson’s vision, but with many alterations. It will look like the real earth, and it will support even more users than the Snow Crash cyberworld, functioning as the agora, labo­ratory, and gateway for almost every type of information-based pursuit. It will be accessible both in its immersive, virtual-reality form and through peepholes like the screen of your cell phone as you make your way through the real world. And like the Web today, it will become “the standard way in which we think of life online,” to quote from the Metaverse Roadmap, a forecast published this spring by an informal group of entrepreneurs, media producers, academics, and analysts.

This is extraordinary, futuristic stuff, but it reads like a valid prediction of the future. Click here to read the uncut article (which is over 7,000 words). If you have trouble accessing this page (perhaps because you need to register), start here to register and navigate to it.

Chief Justice Margaret Marshall

Thank you, President McIntyre for the honor, and great pleasure, of addressing this annual meeting.

Fair and independent courts need dedicated lawyers. The rule of law needs both. That is why, among so many reasons, I am delighted to be here: to thank this Bar Association, to thank each of you, for partnering in justice with our courts.

This has been a turbulent year. In politics. In terms of climate change. And now, a financial crisis of unparalleled dimensions. The cataclysm on Wall Street reverberates on Beacon Street. Revenue sources for state government are fast declining, and predicted to decline further. … Continue Reading

I’ve heard this quote attributed to Alan Abelson of Barron’s, but who knows, it may be from Kansas. Maybe Abelson used to listen to Kansas.

In any event, it came to mind when I heard that the Maestro, a Master of the Universe if there ever was one, spoke thus before Congress last week:

REP. WAXMAN: You found a flaw in the reality –

MR. GREENSPAN: Flaw in the model that I perceived as the critical functioning structure that defines how the world works, so to speak.

REP. WAXMAN: In other words, you found that your view of the world, your ideology was not right. It was not working.

MR. GREENSPAN: Precisely. That’s precisely the reason I was shocked, because I had been going for 40 years or more with very considerable evidence that it was working exceptionally well.

Google said Tuesday that it has agreed to pay $125 million to settle the copyright litigation brought by book authors and publishers over Google’s project to digitize and show snippets of in-copyright books without the explicit permission of copyright owners. (See 1 2 3 for more on Google Book Search).

$125 million? Peanuts to Google. Less than peanuts. We don’t know all the terms and possible restrictions yet, but it sounds like this is a huge win for Google, which is now free to continue its project of digitizing the world’s books (or at least those under the control of the settling parties) without the threat of injunction.

Google press release here.

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[Update (10/29/08)]: Google explains here how it expects this settlement to affect Google Book Search. Some excerpts from that page are (emphasis added) :

Once approved, this agreement will allow us and our publishing industry partners to greatly expand the number of books that you can find, preview and buy through Google. …

Once this agreement has been approved, you’ll be able to purchase full online access to millions of books. This means you can read an entire book from any Internet-connected computer, simply by logging in to your Book Search account, and it will remain on your electronic bookshelf, so you can come back and access it whenever you want in the future. …

Because this agreement resolves a United States lawsuit, it directly affects only those users who access Book Search in the U.S.; anywhere else, the Book Search experience won’t change. Going forward, we hope to work with international industry groups and individual rightsholders to expand the benefits of this agreement to users around the world.

Well, wake up Amazon! Perhaps Google will be able to sell electronic rights to these works through Amazon and the Kindle, in which case the Kindle’s library will soar from fewer than 200,000 to many millions.

The non-U.S. implications of this settlement are unclear in light of this comment -

First, if Google’s “mission is to organize the world’s information and make it universally accessible,” as it states on that page, this settlement allows it to succeed with only about 5% of the world’s population if it is limited to the U.S. But, if trying to determine whether works created under U.S. law are under copyright, and if so identify their owners was difficult, the task of making these determinations for non-U.S. works seems almost insurmountable.

Second, Google is in fact digitizing many non-U.S. books. How can these books be included in this settlement (presumably they are subject to non-U.S. copyright laws and controlled by non-U.S. publishers)? Will they be excluded from the Book Search program, even to U.S. users of Google?

Returning to the U.S., and the announced settlement, what’s stopping some of the class members from opting out of the settlement? Some authors or publishers may not be happy with a loss of this magnitude this settlement. Google may not be done with even the U.S. legal issues just yet.

There are many questions in the wake of this announced settlement. Given the magnitude of this undertaking it may take many years, even decades, for all of the legal issues associated with Book Search to be resolved.

I’m gonna tell you a story
I’m gonna tell you about my town
I’m gonna tell you a big bad story, baby
Aww, it’s all about my town

I’ve lived in Boston all my life, going on 60 years in the not too distant future, and you’d think that I’d be used to this stuff by now, but really, I’m not. I keep thinking that Boston has joined the 21st Century (or at least my fantasy of what the 21st Century should be). Sure, I like to read books by George Higgins

and Dennis Lehane and we all like reading about Whitey Bulger, the Winter Hill Gang, the FBI’s involvement in gangland murders, Raymond Patriarca, Jerry Angiulo and the North End Mafia, but all that stuffs in the past, right? We’re the Athens of America, the City of Great Universities, the home (in part) of the birth of the Internet. We’re a world-renown center of art, science and education. Sure, we have some stuff in our past we’d rather not talk about, but hey, the past is the past. Fuggeddaboudit!

So I’m shocked, just shocked, to learn that all of our state legislators may not be completely on the up-and-up. But, that’s what the local feds seem to think. Eighteen-year state senator Diane Wilkerson was arrested by the FBI earlier today for allegedly taking bribes to help a nightclub secure a liquor license. Looks like Wilkerson was the subject of an elaborate sting- the lengthy FBI affidavit suggests that all of her bad behavior was video or audio recorded and photographed over an 18 month period. Wilkerson faces federal charges, and a long, long time in the federal pen if convicted.

Here is Wilkerson below, allegedly stuffing a $1,000 cash payoff into her bra during a meeting with an informant at No. 9 Park restaurant on June 18, 2007. No, I didn’t take this photo. I can’t afford to eat at No. 9 Park which, for out-of-towners, is a haute cuisine restaurant right near the State House, not a doorway on some poorly lit side street. This photo was part of the FBI affidavit.

The U.S. Attorney’s office has told the federal court that there are many photos, videos and audio recordings that make the government’s case solid. (Haven’t those guys ever heard of entrapment?)

Well, what can you say – the world turns, sure, but Boston keeps its charm. Love that dirty water …..

Attached below is Judge Judith Fabricant’s lengthy decision in Hilb Rogal & Hobbs v. Sheppard, decided by Judge Fabricant in the Suffolk Business Litigation Session early this year. To my knowledge, this decision and order became publicly available only recently.

This restrictive covenant case is interesting in one unusual respect: it involves what some lawyers like to call “employee raiding” – a perjorative term that one sometimes hears when a large group of employees leaves to join a new firm. Here, the group was unusually large, consisting of 24 employees who resigned en masse, leaving Hilb Rogal & Hobbs (HRH) identical resignation letters and advising HRH to contact the same lawyer in the event any legal communications were necessary.

HRH filed suit and moved for a preliminary injunction, presenting Judge Fabricant with a complex set of facts (the employees did not all have the identical agreements), and factual variations in their circumstances.

The decision breaks no new ground in Massachusetts noncompete law, but it’s worth making a few observations about how the Judge approached the case:

• Employees whose agreements were entered into in connection with a business that had been sold to HRH earlier were treated much more strictly than the “rank and file” employees, as one would expect given Massachusetts law.
• The Judge viewed HRH’s claim of interference with contractual relations favorably, given that the new employer offered it’s prospective employees defense and indemnification for anticipated litigation arising from a breach of their agreements. Since employers are often asked to provide this sort of protection for new employees who fear litigation of this sort, this decision emphasizes that a decision to hold the employee harmless can backfire.
• While the Judge was unwilling to say that agreements signed by employees as a condition of ongoing employment lacked consideration, she did treat this as an equitable factor that weighed against issuance of a preliminary injunction.
• There is no discussion of “raiding” in the decision and order.  In the past I’ve seen lawyers argue that the fact that the new employer hired a large number of employees should, of itself, give rise to some presumption of liability.  However, to my knowledge no Massachusetts judge has ever recognized a cause of action for “raiding”.  I don’t know if HRH made that argument in this case, but if it did Judge Fabricant did not address it.

Here is a link to the full decision.

From the SF Chronicle’s obit of Hal Kant, aka “the Czar”, long-time attorney for the Grateful Dead:

When Ben & Jerry’s ice cream produced a new flavor, Cherry Garcia, in the early ’90s, McNally wrote in his book, the company did so without even discussing the idea with Garcia. Although Garcia was unconcerned when it was first brought to his attention – “At least they’re not naming a motor oil after me, man,” he said – Mr. Kant convinced him that the issue should be addressed.

As recounted by McNally, Mr. Kant told Garcia: “They will name a motor oilafter you if you don’t confront this, Jerry. You’ll have no control over your name at all.”

Garcia finally told Mr. Kant, “If it bothers you, go ahead.”

“In the next few years,” McNally wrote, “Jerry would have no problems in spending the large sum of money he’d earn thanks to the letter Mr. Kant wrote (to Ben & Jerry’s).” … Continue Reading

The 11th Circuit has ruled on a somewhat obscure but interesting issue of federal jurisdiction in copyright cases.

The Declaratory Judgment Act allows one who has been threatened with a suit to file suit first, and ask for a “declaration” of non-liability. In other words, the declaratory judgment makes one who fears becoming a defendant the procedural plaintiff. The roles of “plaintiff” and “defendant” are reversed, but the underlying issue remains the same. Declaratory judgment is simply a way that a threatened party who is unwilling to live with the risk of a lawsuit at some uncertain point in the future can force the issue.

However, the Declaratory Judgment Act is procedural; it does not give rise to federal court jurisdiction. This can create a problem for the declaratory judgment plaintiff, as demonstrated in the 11th Circuit case.

Registration with the U.S. Copyright Office is a jurisdictional prerequisite to a copyright infringement suit – no registration, no jurisdiction.

What if you are threatened with copyright infringement, but the owner of the work who has threatened you has not registered the work?

According to the 11th Circuit, you’re out of luck – the federal courts lack jurisdiction, and you cannot seek declaratory judgment. And, since the federal courts have exclusive jurisdiction over copyright claims you can’t seek relief in state court either. You just have to wait until the party threatening you registers its copyright before you can move against it (or it can move against you).

The case is Stuart Weitzman, LLC v. Microcomputer Resources, Inc.

Assume you’re interested in Jones Day v. Blockshopper, pending in U.S. District Court for the Northern District of Illinois.

Go to Justia.com and click on the link US District Courts’ civil case filings. You can search for the docket of any federal district court case to find the case in Justia. Justia follows the Jones Day case here. If you click on that link and scroll down you’ll see the docket entries for the case (the last entry is #52 as of my writing of this post). You can click on the items to see filings and court orders.

Click on the “RSS” feed link on the top right of the Justia page for this case.

Video Tutorial

Choose the RSS feed that you use. I use iGoogle.com, and once I click on the RSS feed I can select IGoogle. If you don’t have an RSS feed go to iGoogle.com and sign up.

You are done – every time you check your iGoogle page you will see the titles of recent docket entries for this case, and you can click through to see the entry in more detail and access a filing or court order. You can follow as many cases as you like in this manner.