by Lee Gesmer | Mar 5, 2008 | Copyright
Many lawyers in Massachusetts would agree that Massachusetts Federal District Court Judge William Young is one of the most erudite judges in the district. Yet, he has written relatively few copyright law decisions in his 23 years on the federal bench. A Westlaw search shows that he has authored fewer than ten substantive copyright decisions.
In a decision issued on February 28th in the case Situation Management Systems v. ASP Consulting Group, Judge Young undertook the question that has caused many lawyers to call copyright law one of the most metaphysical of practice areas: how to draw the line between expression that is protected by the law, and that which is not. In this decision, Judge Young concluded that Situation Management System’s (“SMS”) workshop training materials, aimed at improving business and personal productivity, did not make the grade.
Judge Young found that the challenged texts, created by two former employees of SMS who had formed a competing business, had been created very quickly, indicating that the former employees had not started from scratch, but had likely used the SMS materials as a starting point. After explaining the famiar (to copyright afficionados) concepts of “idea v. express,”, scenes a faire and the fact that copyright law does not protect a “process,” Judge Young applied these docrines to the case at hand. He found that SMS’s materials were “aggresively vapid . . . hundreds of pages filled with generalizations, platitudes and observations of the obvious.” Comparing this work with some examples of great literature (The Odyssey by Homer, Cold Mountain by Charles Frazier and, of course, a sonnet by The Bard) he found that the SMS material was largely uncopyrightable. While the structure of the SMS texts were entitled to some limited protection, that protection inhered near the literal text level, which the defendant ASP did not copy.
Most importantly, in my view, Judge Young emphasized two points: first, the motivation of the copier is irrlevant. Here, the allegation that the former employees (now with the defendant) started their business to steal SMS’s materials and ruin their business, was irrelevant under copyright law if, as Judge Young concluded, they did not copy protected expression. This conclusion is not a surprise, but it’s nice to have it reinforced every once in a while by a respected federal judge.
Second, the fact that the defendants may have used SMS’s materials as their starting point was irrelevant, so long as the work the defendants created was not “substantially similar” under copyright law, which it was not. Again, not “new law,” but the first time it has been expressed by a court in the First Circuit.
The case is on the Pacer website, here.
by Lee Gesmer | Nov 29, 2007 | Copyright, Courts
One of the many oddities of the legal profession is that judges have to take truly bizarre allegations seriously, and use detailed legal logic to dismiss them. This is like watching Aristotle being forced to debate John Cleese during a Monty Python revival festival. You see this most often in pro se lawsuits brought by prison inmates who are challenging their convictions or treatment during incarceration. You see it a lot less often in the rarified world of intellectual property litigation. However, a case decided earlier this year is a good example of this in just that context.
Harding Earley (the Harding firm) is a law firm ouside Philadelphia. It defended a client in a case alleging trade secret misapropriation and trademark infringment, brought by Healthcare Advocates, Inc. However, by doing so the Harding firm itself attracted the wrath of Healthcare Advocates, and was sued by Healthcare for copyright infringment and various related claims. This suit garnered some attention at the time it was filed, and I wrote about it here, in a blog entry titled The Wayback Machine and the DMCA. Rather than repeat the basic facts here, I refer you to the original article.
The case has now been decided by the Federal District Court for the Eastern District of Pennsylvania (Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey). The issues presented, and their resolution by the court, were as follows:
First, did the Harding firm infringe the copyrights of Healthcare, by printing screen shots of Healthcare’s website during its investigation of the case? Not surprisingly, the Court held that the law firm fell within the copyright “fair use” exception by printing these documents and using them to defend its client. the Court: “It would be an absurd result if an attorney defending a client against charges of trademark and copyright infringment was not allowed to view and copy publicly available material, especially material that was alleged to have infringed.”
Second, did the Harding firm destroy relevant evidence by not preserving the temporary cache files that presumably were created on its computers when it viewed the web pages? Noting that the temporary files were probably deleted within days of the viewing, and that the Harding firm was not put on notice of a claim until months after the viewing, the Court held that the Harding firm could not be guilty of destroying relevant evidence. To put this in perspective, Healthcare’s argument was that as soon as the law firm viewed these files it should have anticipated legal claims against it, and shut down the computers used to preserve the temporary files. Judge for yourself the merits of this argument.
Third, did the Harding firm violate the Digital Millenium Copyright Act by reviewing old versions of Healthcare’s website on the Wayback Machine? As I explained in the original article, the Wayback Machine (described in detail by Wikipedia here) began archiving web pages in 1996. Since web sites frequently change, the Wayback Machine takes billions of “snapshots” of website pages and preserves them. Needless to say, this is a great resources for lawyers.
However, if you own a web site and you don’t want to be archived by the Wayback Machine, you can opt out. The Wayback Machine permits website administrators to use the voluntary SRE (Standard for Robot Exclusion) to identify files or directories that cannot be “crawled” and indexed. Exclusion is accomplished by inserting a file called robots.txt on a web server. According to Internet.org this not only prospectively excludes a site from being crawled, but will “exclude any historical pages from the Wayback Machine.”
It turns out that this method is not foolproof. On the fateful day that the Harding firm accessed Healthcare’s old web pages on the Wayback Machine, the Wayback servers malfunctioned, and certain pages that carried the robots.txt file were not blocked from access. This, however, was invisible to the Harding firm – they had no hint that they were accessing the pages against the wishes of Healthcare, and due only to a technical malfunction.
These facts didn’t deter Healthcare, however, which accused the lawfirm of violating the Digital Millenium Copyright Act (DMCA). Section 1201(a) of the DMCA states: “No person shall circumvent a technological measure that effectively controls access to a [copyright] work protected under this title.” Healthcare claimed that robots.txt is a technological measure that controls access to the archived copies of its web site, and that the Harding Earley law firm circumvented that measure.
If this argument doesn’t make much sense to you (how could Harding have circumvented a technological measure if it simply accessed the Wayback Machine site, and had no idea that the Wayback Machine site was malfunctioning?), it also didn’t make much sense to the judge, who dismissed this claim.
Fourth, and lastly, did the Harding firm violate the Computer Fraud and Abuse Act (CFAA), a federal law that makes it illegal to access a computer without authorization, or in excess of authorization? Healthcare’s position was that the Harding’s firm exceeded authorized access, despite the fact that it was the Wayback Machine’s servers that malfunctioned and permitted that access. The Court dismissed this claim, noting that the Harding firm did nothing more than view web pages delivered from a public website in the manner the website was designed to deliver the pages.
The extraordinary thing about this decision, to my mind, is the time, effort and expense (the Harding firm spent over $170,000 in fees and expenses) that went into defending against allegations that should (in this writer’s opinion) never have been brought in the first place, or at least dismissed once the facts were clarified for Healthcare. Instead, the case dragged on for two years; the docket sheet has around 80 entries; both sides hired computer experts, and in the end the case was dismissed on summary judgment, in a decision where the judge spent almost 40 pages analyzing each claim made by Healthcare and dismissing it only after rigorous and in-depth analysis which went, in my opinion, far beyond the call of duty.
Oh, I almost forgot to mention – Healthcare has filed an appeal.
by Lee Gesmer | Jan 30, 2007 | Copyright
Bill Patry, Senior Copyright Counsel at Google (how’s that for a great job), emailed me and asked me to mention the publication of his new copyright treatise, Patry on Copyright.
I like the fact that Mr. Patry said this about his 5,800-plus page, $1500 treatise: “ The book is also chock full of wikipedia references, anecdotes, riffs on logic, congitive linguistics, etc. It is many books in one.”
Although I haven’t seen this treatise yet, I hope that it is a change from Nimmer on Copyright, which is so densely academic as to often be unusable by practitioners. Somehow, I doubt that we’ll ever see Nimmer referencing Wikipedia.
I would also add that it may be time for the intellectual property fathers of the 20th century, whose treatises have become so calcified and entrenched with the courts that it’s hard for anyone to compete with them, to make some room for the next generation. After all, Melville Nimmer died in 1985, and his treatise is now edited by his son, David Nimmer. Roger Milgrim (Milgrim on Trade Secrets) , Donald Chisum (Chisum on Patents) and Thomas McCarthy (McCarthy on Trademarks) are in their 60s. Bill Patry, by comparison, is only in his mid-50s. And, he has a blog. And, a sense of humor.
For some amusing repartee between Patry and readers of The Volokh Conspiracy, click here.
by Lee Gesmer | Oct 19, 2006 | Copyright, DMCA/CDA
I quote from News.com on September 28th:
Cuban, co-founder of HDNet and owner of the NBA’s Dallas Mavericks, also said YouTube would eventually be “sued into oblivion” because of copyright violations.
“They are just breaking the law,” Cuban told a group of advertisers in New York. “The only reason it hasn’t been sued yet is because there is nobody with big money to sue.”
* * *
Cuban said “anyone who buys that (YouTube) is a moron” because of potential lawsuits from copyright violations.
“There is a reason they haven’t yet gone public, they haven’t sold. It’s because they are going to be toasted,” said Cuban, who has sold start-ups to Yahoo and CompuServe.
The outspoken (to put it mildly) Cuban, billionaire owner of the Dallas Mavericks and Chairman of HDTV cable network has repeated this message loudly and often, both before and after Google’s $1.6 billion purchase offer to YouTube. Many other media sources appear to have picked up the tune, and the media-giant mouthpieces have added to the volume by rattling their sabers, implying that its only a matter of time before this “mother of all lawsuits” is forthcoming.
Don’t believe a word of it. Surprisingly few observers have asked the pertinent question here: do the Supreme Court’s 1995 Grokster decision and the DMCA (the Digital Millennium Copyright Act) protect YouTube from liability for copyright-protected works posted by third parties (third parties being the law’s awkward way of saying someone other than YouTube itself)?
Grokster sets the legal standard for contributory copyright infringement, in this context a product or service (YouTube) that encourages or assists third parties to post infringing works. Based on what I’ve observed, it seems that YouTube has been well advised by some pretty savvy lawyers, and that as a result it has stayed on the safe side of the line defined by Grokster. I’ve read of no evidence suggesting that YouTube has intended its service to be used for infringing works, or that it has done anything to foster infringement. If such evidence existed, you can be sure the media companies would let us know, and they haven’t. We also can be pretty sure that Google carefully vetted YouTube for this issue, and that if it had found adverse evidence, YouTube would still be flying solo.
As to the second issue, the DMCA, this federal law provides a strict “notice and take down” procedure that requires copyright owners to give written notice of an infringing work posted by a third party to the web host, including its precise location (its URL), as part of a demand that the work be “taken down.” There is no suggestion that YouTube has not responded in a timely way to legitimate take-down requests, and in fact the press has reported that YouTube has attempted to develop technologies that can help identify copyrighted works. (If this is true it would weigh even more heavily in YouTube’s favor in evaluating YouTube’s intent for purposes of applying Grokser).
All YouTube needs to do is hire a staff capable of looking at a take-down notice and removing the work at the identified URL. Ten, fifty, maybe a hundred FTEs, perhaps working in India or another low-wage country, should be sufficient, and hence the “whack a mole” metaphor – I can for-see copyright owners being forced to constantly scan YouTube to catch their copyrighted works when they pop up over and over again (posted by different users), and repeatedly provide infringement notices to YouTube. To put it differently, and a bit crudely, every time a copyrighted work pops up the copyright owner would “whack the mole” by sending a take-down notice. Of course, the media companies could themselves hire low-wage foreign workers to scan YouTube, and issue the take-down notices, creating more third-world employment on both sides of the equation. Strange but true …
by Lee Gesmer | Oct 12, 2006 | Copyright, Trade Secrets
In Cambridge Literary Properties, Inc. v. W. Goebel Porzellanfabrik Magistrate Judith Dein issued an extensive Report and Recommendation (adopted by Judge Nancy Gertner) on issues relating to the statute of limitations as a bar to a claim of copyright infringement. The case involves facts going back as far as 1931 which involved the drawings of Berta Hummel, and is a valuable primer on the defense of statute of limitations in copyright actions.
District court Judge Gorton has issued a decision in Echomail, Inc. v. American Express denying IBM’s (a co-defendant) motion to dismiss claims of trade secret misappropriation, unfair competition and violation of M.G.L. c. 93A.
In T-Peg, Inc. v. Vermont Timber Works, Inc. the First Circuit applied the Architectural Works Copyright Protection Act for the first time in this circuit. Reversing summary judgment for the defendant and remanding for trial, the court not only recapped the legal standard for substantial similarity (the test by which infringement is judged under copyright law), but clarified its position on expert testimony in copyright cases, making clear that there is no per se rule against expert testimony, and that whether or not it is appropriate depends on the complexity of the subject matter at issue.
by Lee Gesmer | Sep 15, 2006 | Copyright
Copyright. Sometimes it just seems like the law is full of traps. Miss a filing deadline, fail to make the proper objection or motion in court, leave the many forms of “magic language” out of an agreement – any of these, and countless more, can result in disaster.
Our firm has recently seen two clients pay over $500,000 to buy their way out of what I call the “work for hire” trap. Both clients are software companies. In the first case, the client hired an independent contractor to develop its product, and failed to get a written assignment of ownership from him. After leaving under adversarial circumstances, the contractor claimed that he, not the company, owned the product. The second case involved similar facts, but the independent contractor/programmer worked for a small agency, and after several years the agency asserted ownership of the programmer’s work. Again, no written assignment, and again, a multi-hundred thousand dollar settlement to avoid litigation and get what the company should have owned outright.
In both cases the companies could have argued that they had an “implied license” to use and sell the software (since in neither case did the contractor warn the company of his ownership claim while the work was being done), but the implied license doctrine is messy, to say the least. What investor or purchaser wants to be told that the company it is investing in or buying doesn’t own its software, and that it has an “implied license” from a hostile former programmer? ‘Nuff said.
Here are “the rules” of work for hire under the Copyright Act:
First, the easy case: if the developer is truly an “employee” (works full time, at direction of employer, employer withholds taxes), and the work is within the scope of her employment, the employer owns the programmers work. In this context the disputes that usually arise are over the “scope of employment” question – when the employee works at home evenings or weekends, was the invention within the “scope”? Any ambiguities in this situation are usually resolved be a well written employment agreement that draws this line contractually.
Second, if the developer is an independent contractor (working for you directly or through an agency), you must get a written assignment. The assignment can be complicated and wordy, but it can also be as simple as one sentence: “I, John Doe, for good consideration, receipt of which is acknowledged, do hereby assign to Corporation all title and interest in the intellectual property I have created for Corporation.”
Leave out any mention of “work for hire” unless you are sure that the work falls into one of the nine narrow work for hire categories set forth in the Copyright Act (for example, a translation or an atlas). If the contractor is working on one of these items, then the contractor can agree in writing, before work is commenced, that his work is a work for hire. Note that a computer program developed by a contractor can never be a work for hire, because computer programs are not one of the nine categories.
Because of the legal technicalities associated with the work for hire doctrine as applied to independent contractors, any reference to a work for hire is both unnecessary and possibly dangerous. What if the contractor agrees that the computer program she is writing is a work for hire? Does this technically deficient agreement (since computer programs don’t fall under work for hire) undermine the “employer’s” ownership? Who needs to worry about these technicalities? The solution, plain and simple, is to get a blanket assignment. An assignment covers all bases: whether the developer is an employee or an independent contractor, and whether her work falls within the nine work for hire categories or not, the assignment transfers ownership.
Avoid the work for hire trap, and with one important caveat, get an assignment.
The caveat is that a non-employee may be able to terminate the assignment after 35 years.
by Lee Gesmer | Aug 10, 2006 | Copyright, Miscellaneous
[Update:] Matt Mattari sent me a link to his article on this topic, which was published in the Harvard Journal of Law & Technology before the publication of the decision. Click here to read the article (pdf file).
Here is a link (pdf file) to the federal district court decision in the C.B.C. Distribution and Marketing Inc. v. Major League Baseball Advanced Media and Major League Baseball Players’ Association case, issued on August 8, 2006.
Quoting from the decision:
The court finds that the undisputed facts establish that the players do not have a right of publicity in their names and playing records as used in CBC’s fantasy games and that CBC has not violated the players’ claimed right of publicity. The court further finds, alternatively, that even if the players have a claimed right of publicity, the First Amendment takes precedence over such a right. The court further finds that the undisputed facts establish that the names and playing records of Major League baseball players as used in CBC’s fantasy games are not copyrightable and, therefore, federal copyright law does not preempt the players’ claimed right of publicity. Additionally, the court finds that the no-challenge provision of the 2002 Agreement between CBC and the Players’ Association and the provision of this Agreement which prohibits CBC from using players’ names and playing records after the expiration of the Agreement are unenforceable based on public policy considerations. The court finds, therefore, that declaratory judgment should issue in CBC’s favor. As such, the court will order the Players’ Association and Advanced Media to refrain from interfering with CBC’s fantasy games in the manner proscribed by this court’s decision.
The case contains a very extensive and thoughtful analysis of the issues, particularly the right of publicity and copyright issues. An appeal appears likely.
by Lee Gesmer | Aug 7, 2006 | Copyright, DMCA/CDA, What Were They Thinking
One of the risks of sending a legal demand letter to someone in the Internet age is that they will post it on the web and ridicule you. That’s what happened when the Baker & McKenzie law firm sent the very popular web site Boing Boing a letter warning it not to broadcast the World Cup competition, and containing the ominous threat that it would have its “agents actively monitor your website and others to identify unlawful activity.” Boing Boing published the letter here. (The letter is an image, so you may have to print it to read it).
Is a preemptive strike like this legally effective? Almost certainly it is not, except as a warning to the web site owner itself not to publish video or audio from the Cup. However, no sane, established web site owner would do so even without such a warning, since the site owner would risk significant damages (and particularly “statutory” damages – aka punitive damages) of up to $150,000 per infringement ). The far greater likelihood is that a third party will publish the audio or video (on a video site such as YouTube.com, for example, where videos of the Cup continue to be rampant), and that it was publications of this nature that Baker & McKenzie was targeting.
However, the owners of the World Cup broadcast rights must give notice after the fact under the strict procedures described in the DMCA (at least in the U.S., where Boing Boing is based). A preemptive, “before the fact” letter gives the copyright owner no greater rights than if it had not sent it at all. The owner of the Cup broadcast rights would still have to go through the “after the fact” notice and “take down” procedures mandated by the DMCA.
Back to my original point, when you send these demand letters (which by their nature often are extreme examples of “lawyer-speak”), you do risk public ridicule on the Web, and people will often try very hard to effect this. One of my all-time favorite examples of this is “The Rocket Formerly Known as Black,” which is quite funny, and seems to have taken on a life of its own.
by Lee Gesmer | Aug 4, 2006 | Copyright, DMCA/CDA
An interesting article in Business Week on the copyright issues raised by YouTube’s tremendous success.
When YouTube Inc. was sued on July 14 for copyright infringement, the shock wasn’t that the video-sharing service was being yanked into court. Questions had been swirling for months about whether the upstart, which now dishes up 100 million daily videos, was crossing copyright boundaries by letting its members upload videos with little oversight. continue . .
YouTube has a strong answer to this complaint based on the Digital Millennium Copyright Act (pdf file), which allows publishers like YouTube to avoid copyright liability for infringements posted by third parties, so long as an infringement is taken down after notice to the publisher.
by Lee Gesmer | Nov 27, 2005 | Copyright
Copyright.
“Imagine the cultural impact of putting tens of millions of previously inaccessible [books] into one vast index, every word of which is search able by anyone, rich and poor, urban and rural, First World and Third, en tout langue — and all, of course, entirely for free.”
Eric Schmidt, Google CEO
“Mr Schmidt fails to mention that Google’s intent . . . is to make even more money. . . . Can it be so greedy that it seeks to bolster it profits by freely exploiting the rights of publishers and authors?”
Patricia Schroeder, President, American Association of Publishers
The legal controversy over Google’s plan to use a proprietary high speed scanning process to copy (to start with) the entire book collections in the libraries at Michigan, Stanford, Oxford, the New York Public Library and Harvard, whether or not a particular book is under copyright, and to require copyright owners to notify Google if they wish to “opt out” of this program, has reached fever pitch. Indeed, its easy to see why. In almost every case until now, copyright litigation has implicated the legal rights of one copyright owner and one alleged infringer. In the few cases to involve broader rights, such as the Napster/Grokster line of file sharing cases, it was easy for anyone with a moral compass to conclude that wholesale copying and distribution of copyrighted music (or the encouragement of same) was wrong, and was a violation of the copyright laws.
Google’s is not threatening to Napsterize the book publishing industry, but its chutzpah is breathtaking: “Google Book Search” (f/k/a Google Print) proposes to scan every book, in every language, in-print or out-of-print, in-copyright or out of copyright, and make it freely searchable. If the copyright owner gives permission, make available for Internet searches the full page on which a search result appears, and adjacent pages. If Google doesn’t have the copyright owner’s permission, present only a “snippet” from the book to searchers using Google.
Whew! You would be hard pressed to come up with anything to make the book publishing industry angrier (short of outright Napsterization), and Google’s proposal has had a predictable effect (although its not clear whether the Googlers in Mountain View anticipated that their altruistic undertaking would result in copyright infringement lawsuits brought by both the American Association of Publishers and the Author’s Guild).
Here’s my view on the debate over the legality of Google’s on-again/off-again project. For the views of numerous other academics and observers (and more than you could possibly ever want to know about this issue, unless you are a lawyer for one of the sides in these lawsuits and are trolling for arguments), read here and here.
First, just as was true for many people when the peer-to-peer music file sharing issues first arose, there’s a lot of emotion over this issue. We are all consumers of information, and what consumer wouldn’t want “one giant electronic card catalogue that makes all the world’s books discoverable with just a few keystrokes by anyone, anywhere, anytime”? (Google’s Schmidt again). However, unless the courts rewrite the law (as Lawrence Lessig suggests), the legality of Google Book Search is going to be decided under the law as it exists today, not based on what’s good for the planet or Utopian philosophies of copyright law.
Second, I suspect that what’s really keeping the publishers and authors up nights is this question: who’s going to have control over this compilation of data? Sure, it’s “Do No Evil”-Google today, but who might have the resources to do the same thing, even on a smaller scale, in the future? And remember, the future is a long time. One can imagine the great-to-the-nth descendants of today’s publishers cursing their literary ancestors for allowing Google to take the first step down the slippery slope that leads, who knows where?
And, if that’s not enough to keep a good capitalist publisher awake nights, how long will it before the entire estimated 20 million books can be copied onto some kind of high capacity optical/nanotech data storage (blah, blah, woof, woof) DVD? Fifty years? Less? What’s to stop some Google employee who only pretended to buy this “do no evil” stuff from stealing this collection someday, and selling a copy to a wealthy collector? What if Google goes bankrupt (stranger things have happened), and the compilation is sold to . . . . ? (complete the sentence yourself, Constant Reader – your imagination is almost certainly better than anything I could provide).
Bottom line: for the publishers, this is the Battle of the Somme and the Battle of Normandy rolled into one. For the publishers, lose here, and the consequences are too horrible to imagine. Or at least they so imagine.
Now, the dry legalities. There is no question that Google is making literal copies of copyrighted works. Not only do they not deny it, they boast about it. By doing so, they are violating the first of the six “exclusive rights” that belong to a copyright owner, the right to “reproduce the copyrighted work.” Accordingly, Google must fall back upon the copyright “fair use” doctrine, which states:
[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
This statute may appear reasonably straightforward on its face, but of course in application it’s not. The courts have applied these factors in many different contexts, and reversals by appellate courts (including SCOTUS on many occasions) has proved that applying them in a given case is no simple matter.
It is almost inconceivable that any court would give Google summary judgment in this case (although the same is not true if the publishers/authors move for summary judgment). Assuming a trial, what kind of evidence might the jury expect to hear in the copyright “trial of the century” ? Well, on the first factor, start with evidence of Google’s expected profits from this project, including all internal memos and analyses by Google projecting its business plans for Google Book Search, as well as Google’s contracts with the universities, one of which has already been made public. I’d be surprised if the publishers can’t show that Google Book Search is motivated by commercial interests. On second factor, the jury will learn that many of the copyrighted books involved are works of fiction, which are granted far stronger protection than factual works.
On the third factor, consider that although Google claims it will display only “snippets,” it is copying the full text of the works, and the publishers/authors have no guarantee that Google will forever comply with its promise. What will the jury focus on, the amount and substantiality of the material copied, or the substantiality of the material displayed in a single search? Finally, the fourth factor, which focuses on the effect on the potential market or value. What effect might a compliation of this magnitude have on the market if Google lost control of all or even a part of it, a concern that is far from hypothetical, and that the publishers/authors are likely to press aggressively?
Bottom line: while as a consumer I would love to have access to a fully stocked Google Book Search, as a lawyer I would place my bets with the copyright owners. I do not agree with Jonathan Band’s argument that the Ninth Circuit’s decision in Kelly v. Ariba Soft is controlling, or even persuasive precedent in this case. Arriba held that an online database of photographs, displayed as thumbnails and linked to the original web site that hosted the photo, fell within the fair use exception. The most significant difference, of course, is that in that case the copyright owners had freely put their works on the Internet themselves, and Ariba made copies only for the purpose of providing a directory for them.
When the publishers and authors first filed suit my water cooler prediction was that Google would back down. Since then, Google has made aggressive statements to the press, asserting that it believed in its position, and that it would take this case through the courts. Frankly, I don’t believe it, and I expect to see some form of out-of-court resolution that can be held up as a victory for both sides, but which is far less than Google Book Search as it was originally conceived.
by Lee Gesmer | Nov 9, 2005 | Copyright
Copyright. Copyright law is often called the “metaphysics of the law,” as judges labor to decide whether one work is enough like another to constitute copyright infringement. Often this involves arcane legal tests that few people, beyond copyright lawyers, care to think about. But, most of us read novels, and when one writer says, “your novel is so similar to my novel that it infringes my copyright,” we think, “that’s not so hard, I can decide that!” And, when one of the books is The Da Vinci Code (ranked 44th in books at amazon.com two and one-half years after publication), the chances are good that you, patient reader, have read one of the books that was the subject of just such a case. To see how a New York federal district judge decided the case in which Lewis Purdue, the author of Daughter of God and the Da Vinci Legacy, accused Dan Brown, the author of The Da Vinci Code, of copyright infringement, click here.
by Lee Gesmer | Jul 21, 2005 | Copyright
Copyright. Sexy: Internet file sharing systems, Grokster, sampling, The Wind Done Gone, fair use, the legal standard for non literal infringement of computer source code.
Not sexy: copyright protection for parts numbering systems.
Yet, believe it or not, from time to time clients do ask whether parts numbering systems are protected.
Lewis Clayton at Paul Weiss has written an article (published in the July 8, 2005 issue of the National Law Journal), discussing several recent cases dealing with parts-numbering systems and the “merger doctrine” under U.S. copyright law.
