20 July 2014

One Giant Internet Link Sausage Platter for Mankind

Forty-five years ago today...

16 July 2014

AmazonFail 5.1

Still not ready to do internet link sausages — whether it's PTSD from the entirely-predictable end-of-Term nonsense inflicted on us by the Supreme Court, or the side effects of the pig shortage, is rather beside the point — but I do have one more thing to say about the Amazon v. CommercialPublisheroftheWeek (currently Hachette) pricing and availability dispute.

You're all getting it wrong. Just like there is no universally correct solution to the problem of determining greatness in the arts (for example — and this resulted in a great deal of incredulity in the halls of academy, since as a Yank my hero-worship is rather presumed — I find both Moby-Dick and virtually all of Hemingway so fundamentally flawed that they're unreadable), there is no universally correct solution to the problem of determining appropriate pricing and/or distribution methods of personal copies of works in the arts. And the less said about extending the tip of the tail/tale of fiction to the mangy, flea-ridden, undernourished dog of all of publishing, the better.

On the one hand — from a strictly efficiency-is-good economic point of view — having a uniform structure makes sense. Too, a uniform structure and paradigm also reduces (or at least cabins) opportunities for outright fraud.1 But "uniform structure" does not mean "uniform terms," especially in a day of easy-to-manipulate parameters in computerized accounting systems. Just because e-books might be sold to endusers2 does not mean that every e-book needs to be, or should be, on the same terms. Hell, even the most rigid proponents of pricing admit that sometimes there are "special sales," and sometimes Novel A will have a different list price/selling price than Reference Book B (or even Novel C or Short Story D)! Maybe — just maybe — we should admit that more than just the selling price varies for noncomparable works.

The entire argument works as an argument (not even as a lemma, let alone a demonstrable theorem) if, and only if, one assumes that the characteristics of Amazon's market exactly match the corresponding characteristics of CommercialPUblisheroftheWeek's offerings into that market. Any variance at all between them indicates that a rigid, uniform method is inappropriate... except, that is, if one buys the Coase Theorem in its entirety: Not just the assumption of zero transaction costs, but the neglect of translation costs (the cost of converting one form of capital, such as intellectual property, into a different form, such as copies of books) and efficiency as a normative (and not merely descriptive) value. And the less said about the collective-action problem, the better.3

In short, this is the wrong argument. It has little or nothing to do with the future of e-books. It has everything to do with the time-sliced financial reporting (not even fundamental economics) of existing distribution methods. And for that reason, both Amazon and CommercialPublisheroftheWeek should lose... because a victory for either is a loss for both their suppliers and their customers. It's just game theory and the math of stochastic processes, guys (even if HTML doesn't lend itself well to "showing my work").


  1. If you think that the concept of "net receipts," with its rather vague definition, as found in current publishers' contracts concerning e-books is never going to lead to fraud, I could point you to several active disputes regarding precisely that. "Net" is in the eye of the beholder... or stockholder.... Plus, that would be going against three centuries of tradition regarding royalty statements!
  2. And it's a sale. Even if Vernor and similar cases had been correctly decided, and even if the terms of transfer were enforceable — neither is correct — those are for tools directly used in the creation of other works and material, not for static content. If nothing else, an e-book sale (or, for that matter, an MP3 sale) is a sale to the end-user, notwithstanding the economic-terms fight between musicians and music labels (which is about contract language, not statutory interpretation).
  3. I should also note that Professor Solum's numbers in his railroad hypothetical don't work correctly; the equilibrium point for the farmer's contribution is $25, not $50, because at $25 both parties will be avoiding $75 in potential costs. But that's for another time; sadly, his illustration of the Coase Theorem is exactly how neoconservatives and tort-reformers think about the problem...

13 July 2014

AmazonFail 5.04 RC3

It's been a busy week, among all of the stuff I can't talk about and the heartbreak of remoras, so no sausage platter today. Instead, I want to reflect a bit on the rhetoric of the Amazon v. Hachette saga, and its context, and together what they reveal... and attempt to hide.

There is a common assumption — rhetorically, psychologically, propagandistically — shared in almost all of the rhetoric surrounding this particular dispute, even among author groups. The rhetoric is one of ownership-and-sales, and it assumes that either Amazon owns the unfettered right to do what it damned well pleases with its property, or the publisher (Hachette, in this instance, but the Wormyfruit settlement with the publishers will give the other children a turn at the top of the slide) owns the unfettered right to do what it damned well pleases with its property. Guess what? It's not their property... or at least it is not their property as to trade books.1

They're arguing about other peoples' property, and how to earn money for themselves from it while giving as little as possible to the actual owners. It's the cannibals arguing over who gets to put the authors in the boiling pot for dinner, and who gets the biggest share afterward.

Meanwhile, the authors generally have let them do so. The Authors' Guild (to name only one of the problems) has actually hurt its own position — let alone what its position should be — every time it has opened its mouth. The Authors' Guild, being based in New York and drawing its staff from locals in New York, has become at least in part coopted by the culture of its adversary: Commercial publishing, also based in New York.2 It's one thing to be cautious because the exact terms being discussed by Amazon and Hachette are not public knowledge; it's another thing entirely to refuse to give both misbehaving children a time out to calm down. And I think I'm insulting a lot of children on the playground by comparing this particular set of corporate officers to children: After all, children do learn, they're generally quite forgiving, and they're generally acting on impulse instead of as part of a long-thought-out plan for personal benefit at the expense of others. The exceptions become the centerpieces of horror novels.

Ultimately, the issue is going to be resolved without regard to long-term consequences. Like that's a surprise.


  1. Do not get me started this morning on work-for-hire in trade publishing. Most WFH agreements in trade publishing — and I'm explicitly including graphic novels/comics in that category — are not really works for hire. The Copyright Act allows only a very narrow subset of works to qualify as freelancers' works for hire... and "book-length work of fiction" cannot be shoved into any of those categories, nor can almost any trade nonfiction.
  2. That commercial publishing should be a partner and not an adversary is an issue for another time, I'm afraid — and it's an ugly descent in the actual history of commercial publishing.

06 July 2014

Breaching the Boundary Conditions

Once again, too busy to make sausages, so these may be of even-dodgier-than-usual ingredients...

  • Just as there's something wrong with publishing cookbooks deep-fried in testosterone and endorsed by poor losers (hello, Food Network!), tech isn't going to become more gender-inclusive with sparkly pink brochures "aimed" at geeks who don't have a Y chromosome. This is what happens when you let marketing dorks apply their general principles that (supposedly) work on everyone to specialized markets — and even not-so-specialized markets. The less said about how successful the dorks actually are, the better...
  • Power — economic, political, cultural — is merely another form of gravitational force, with perhaps some different constants ("perhaps" because nobody has really figured out how to measure it yet). This leads one to wonder whether the EU's latest response to Google and Amazon has as much chance of success as King Canute ranting against the tides. All the monopolist ventures are trying to do is emulate government monopolies... right? (<SARCASM> tag omitted as redundant.)
  • And that leads to the current kerfluffle between Amazon and Hachette over e-book pricing availability, etc. In many ways, it's a struggle I really want to see both of them lose. Unfortunately, there's a lot of rhetoric out there that takes one side (PDF) or the other, often to the long-term disadvantage of those taking sides (who usually don't think things through well enough).

    • Amazon is in the wrong by punishing both the captive, ultimate vendors (the authors) and its own customers, by focusing its conduct on a fellow oligopolist and that fellow oligopolist's visible pricing practices without regard to ripple effects. Whether it has a conscious intention of doing so or not, it is engaging in practices perilously similar to predatory pricing. The legal definition of predatory pricing has ossified into requiring an actual loss to make a transaction potentially predatory. That's insupportable as theory, and assumes equilibrium (the math is there, economists: it's called "quantum thermodynamics" and "reaction profile analysis"). It's easier to go after the whole herd at once if you weaken it by drastically limiting its moneyfood supply... and that's why predators in the wild never do so, because they know that they're actually dependent upon the herd. Only mindless, malfunctioning parasitic microorganisms that can't recognize codependence act like that. The rejoinder that "But Amazon is developing its own internal replacement food supply content providers through its self-publishing programs" isn't going to cut it in the long run, because the measures of success remain tied to those of commercial publishers.
    • Hachette is in the wrong because it is false-flagging the controversy over its visible pricing practices as making it the "victim" here, while ignoring its own perfidy farther up the chain as a monopsonist engaging in exactly the same price-fixing behavior against its authors. As I've remarked before, it seems astounding that with the diversity of product lines, financial and managerial structures, and age cohorts in commercial publishing, everyone converged within two years on a nonnegotiable 25%-of-net share to authors for e-books... astounding, that is, if one assumes competent and noncorrupt management in the publishing industry. The less said about the typical compensation paid on print titles, the better — the problem is not the lack of evidence of unlawful collusion, but the statute of limitations and the egregious cooperation of the agent community. And that's just one aspect of Hachette's (and its "competitors'") hypocrisy in this particular controversy.

    This is, ultimately, an inevitable result of an investment system that (a) substitutes the Β statistic (a measure of variability of return that works only when all returns are positive) for actual considerations of "risk" (that is, the possibility that returns might be negative — a loss, and possibly total — for specific transactions), (b) promotes both inside and outside of corporations based upon how well middle managers adapt to and massage the appearance of their responsibility for favorable Β (whether or not they're consciously doing so), and (c) accepts — even celebrates — the unproven lemma of linear scalability, aka universal economies of scale. Remember the American automobile industry in the 1960s and 1970s? Like that.

    Sometimes high-falutin' theory does have clear application to current matters. This is one of them: I reject "efficiency" as a normative, as opposed to merely descriptive, value in financial and economic systems, based on a theoretical examination of nonequilibrium systems. And I dare anyone who actually looks at data to characterize any part of publishing — let alone retail distribution of trade works — as even resembling equilibrium; indeed, the whole point of publishing is to exploit, and even celebrate, informational and expressional disequilibrium! Commercial publishing is the ultimate expression of Maxwell's Daemon as not just theory, but a method of doing business.

    Taking sides in this particular controversy resembles cracking down on the Bloods while leaving the Crips, the Latin Kings, the Outlaws, and so on to go on with their own thuggery, merely because one recent member of the public caught in the crossfire was "obviously" the victim of a Blood-fired bullet. These gangs aren't the "friendly" Sharks and Jets of West Side Story.

If there's a unifying theme here, it's the mistaken — and frequently self-defeating — application of purported "laws" beyond their boundary conditions. Virtually everything has a boundary condition beyond which the basic statement of the "law" does not apply, even by its own terms: Division by zero, "thou shalt not kill," "treat others as you would wish to be treated," and negative externalities are only excrutiatingly obvious examples. We need to pay better attention to this problem.

01 July 2014

How to Survive in a Legalist-SciFi Universe

I'm not going to spend a lot of time on Hobby Lobby (PDF) itself. It is a profoundly flawed decision based upon a profoundly flawed statute, both of which desperately attempt to evade examination of their scifi foundations (and that's "scifi" as in "bad 1950s B-movie directed by Ed Wood," not "breathtaking work of imaginative fiction by Ursula K. LeGuin"; it's not a compliment)... and perhaps even their common foundations in the history of slavery in the United States.

On one hand, we have a reification worthy of Frankenstein: The corporation — or, at present, certain kinds of corporations, via a distinction unsupported in the corporation law of the relevant states — is now capable not just of suing and being sued, but of forming and holding religious beliefs sufficiently conduct-related to invoke the Free Exercise Clause of the First Amendment. Leaving the meaning of "free" for the past (and carefully ignoring my own history with that corporation in the 1980s when I was stationed in its hometown), Hobby Lobby has two legalistic-scifi implications that should disturb everyone.

Justice Alito's decision essentially amounts to reverse veil-piercing. The corporate formalities that justify limited liability for the shareholders have been reduced to the equivalent of an osmotic membrane, because now the corporation in question has taken on the very human characteristics of its controllers/owners — characteristics utterly irrelevant to its legal status, except as declared in this matter. The key question is this: Is there a principled reason that this must be a one way osmotic membrane, thereby restricting the limited liability of the owners? Consider, for a moment, that such a "Christian" corporation operates at full tilt on Fridays and Saturdays, but not at all on Sundays... and what that implies about its treatment of potential Seventh Day Adventist (sabbath is Saturday), Orthodox Jewish (sabbath is sundown Friday to sundown Saturday), and Muslim (sabbath is Friday) employees — and customers. More to the point, if the veil has been pierced to the corporation's benefit in allowing it frei und kostenlos anwendungen of its owners' religious beliefs — however firmly held — does that not expose the owners to personal scrutiny, and even liability, in the opposite direction? If so, it seems to me that the purpose of corporations (pooling of capital to enhance economic activity, incentivized by limiting risk via liability to the amount of the investment) has been rather thoroughly, and probably fatally, undermined. One must also ponder whether Hobby Lobby might apply to a hypothetical closely held foreign corporation that expresses firmly held religious beliefs.

And there one finds the far more disturbing implication: Not so much "personhood" as "citizenship." That's right: Paper people have more rights under the reasoning and rubric of Hobby Lobby than do brown people not born in the US. Hobby Lobby, after all, has free access to the courts to enforce its religious beliefs against the State. It can't be deported, have its assets confiscated, or be subjected to the whims of the Sheriff of MaricopaNottingham primarily related to its state of incorporation nation of birth. Again, I'm looking for a principled distinction that does not reduce to "but that's different;" the colors "blue" and "red" are different, but not so much to the colorblind. Unfortunately, I can't find it anywhere in Justice Alito's reasoning... or in the corresponding reasoning of those who oppose immigration reform. It all revolves around defining who is entitled to fundamental respect as a human and citizen, and may exercise the privileges or immunities of citizens of the United States... or be free of ownership by other persons.

In that respect, I think Hobby Lobby tries desperately to pretend that over two centuries of American history simply haven't happened, for the benefit of a set of very, very Caucasian citizens indeed. That this was not a conscious aspect of the Court's decision (or, indeed, of the litigation itself) merely takes it out of Jim Crow territory... and says that although the government-agency bus service can't discriminate, if the bus system gets completely privatized the answer might be different. For those who claim it couldn't go that far, I again ask for a principled distinction beyond "it's different."

26 June 2014

Smoked Link Sausages

I've really struggled to refrain from "Somebody is wrong in the 'net, and I must correct them!" regarding a couple of recent issues that have hit the speculative fiction community in the last week. Hint: No matter your purported authenticity or academic-in-an-unrelated-field qualifications, you should carefully read someone's comments before spewing outrage, ideology, and absolutismus, and consider that maybe — just maybe — the qualifiers in those comments were intentional and meaningful. Especially when you're playing in that someone else's area of professional expertise and/or denying the authenticity/applicability of that other individual's personal experiences... an irony that seems to escape most commenters in those areas.

  • Speaking of the need to refrain from speaking without paying attention to context, I offer the following quotation from this morning's Supreme Court decisions without further comment:

    Of course we do not hold that “[s]peech restrictions favoring one viewpoint over another are not content based unless it can be shown that the favored viewpoint has actually been expressed.” We instead apply an uncontroversial principle of constitutional adjudi­cation: that a plaintiff generally cannot prevail on an as-applied chal­lenge without showing that the law has in fact been (or is sufficiently likely to be) unconstitutionally applied to him. Specifically, when someone challenges a law as viewpoint discriminatory but it is not clear from the face of the law which speakers will be allowed to speak, he must show that he was prevented from speaking while someone espous­ing another viewpoint was permitted to do so. Justice Scalia can decry this analysis as “astonishing” only by quoting a sentence that is explicitly limited to as-applied challenges and treating it as relevant to facial challenges.

    McCullen v. Coakley, No. [20]12–1168, slip op. at 18 n.4 (26 Jun 2014) (Roberts, C.J.) (citations omitted).

  • There has been a lot of other copyright news in the last couple of weeks aside from the HathiTrust fiasco. (That HathiTrust is a fiasco is the fault of multiple players — Congress, the parties, the bar and judiciary of the Second Circuit, and outside commentators and activists all share some blame.) I'll be delving into several of these in more detail as I see fit; for now, just consider Sherlock Holmes, copying levies in Europe, attacks on misuse of the work-for-hire doctrine that do not go nearly far enough (IMNSHO the doctrine is unconstitutional as applied to freelancers... and if not unconstitutional, it is inconsistent with treaty obligations), and last but not least Aereo. And that's aside from some interesting activity in other courts and elsewhere, not to mention the curious decision in Alice Corp. I'm not behind on my reading so much as behind on my blawgging.
  • Meanwhile, the AmazonFail 5.04 continues to provide endless amusement if your sense of humor is as sick as is mine and you're sufficiently cynical. Bluntly, this is a fight they should both lose... except that the fallout will be unacceptable. It's actually a result of the 1566 Licensing Act, which improperly conflated the editorial, the reproduction, and the distribution functions, largely in the name of censorship, and has also resulted in blatant plans to violate antitrust law that will get precisely no attention from the relevant enforcement agencies.

22 June 2014

HathiTrust
V. Trees

 

D. Nobody Here to Hear the Deadfall

Suing HathiTrust (in essay form)
Proposed Settlement With Google (in essay form)
Suing Google (in essay form)

 

The most-important aspect of the Second Circuit's opinion — and one for which there is no real counter — is its refusal to decide the fate of orphan works. On the way there, the Court takes a very short detour into the preservation argument and rightly notes that the entire argument is not amenable to decision; it is neither ripe (having come to pass) nor imbued with either immediacy or standing.

The record before the district court does not reflect whether the plaintiffs own copyrights in any works that would be effectively irreplaceable at a fair price by the Libraries and, thus, would be potentially subject to being copied by the Libraries in case of the loss or destruction of an original. The Authors are not entitled to make this argument on behalf of others, because § 501 of “the Copyright Act does not permit copyright holders to choose third parties to bring suits on their behalf.”

Because the record before us does not reflect the existence of a non-speculative risk that the HDL might create replacement copies of the plaintiffs’ copyrighted work, we do not believe plaintiffs have standing to bring this claim, and this concern does not present a live controversy for adjudication. Accordingly, we vacate the district court’s judgment insofar as it adjudicated this issue without first considering whether plaintiffs have standing to challenge the preservation use of the HDL, and we remand for the district court to so determine.74

That's just foreshadowing of the orphan-works abstention. The Court offers two independent reasons for refusing to decide anything relating to orphan works: The absence of standing, as already discussed, and a lack of ripeness. Here, though, the Court subtly undermines both this decision and most others related to ripeness with its analysis.

As indicated above, it is far from clear that the University of Michigan or HathiTrust will reinstitute the OWP in a manner that would infringe the copyrights of any proper plaintiffs. If that occurs, the Authors may always return to court. Suffice it to say that “[t]he mere possibility of future injury, unless it is the cause of some present detriment, does not constitute hardship.”75

With due respect, this is incorrect, because it leaves off a critical qualifier... and it's a critical qualifier that applies to this matter. The critical qualifier is whether the resumption might, or might not, result in either criminal prosecution or an infringement of civil rights that would independently justify injunctive relief (not mere damages). There are more voting-rights and freedom-to-assemble cases than one can shake a stick at illustrating this — some quite recently, and some arising in the same city as the Second Circuit sits.76 Whether assertion of copyrights, with its potential criminal penalties77 and inherent First Amendment implications, falls within this is a much closer question than it might seem. The Court would have done better never reaching ripeness and instead relying only upon standing. The Second Circuit did correctly evade the question, but this part of its rationale for doing so fails.

As a policy matter, though, these are the two areas at issue that most require a decision. As Judge Chin (now on the Second Circuit) remarked in the corresponding case against the publishers, that's a matter for Congress.78 And pardon my cynicism, but that's not going to result in a quick, a workable, or a fair resolution. As I have remarked before in other contexts, actual creators' interests — presuming that they are at all uniform — will be drowned out by lobbyists and other corporate interests. Don't kid yourselves: The 'netizen movement is much better organized (and much better funded) than even discrete subsets of creators that actually have uniform interests. Combine this with the agency capture of the Copyright Office and I find little reason for optimism that there will be a nuanced solution... or possibly even one that passes constitutional muster.

In the end, the deadfall and pulped trees may or may not have generated a sound, because there was no court with jurisdiction to hear it. Any sound generated is far from final and is being caused by lumber poachers and parties with only a dubious and partial title to the forest in the first place.


  1. Slip op. at 31–32 (citations omitted).
  2. Slip op. at 34 (citation omitted).
  3. See, e.g., Irish & Lesbian Gay Org. v. Giuliani, 143 F.3d 638 (2d Cir. 1998); see also, e.g., Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557 (1995); Forsyth Cty. v. Nationalist Movement, 505 U.S. 123 (1992); United for Peace & Justice v. City of New York 243 F. Supp. 2d 19 (SDNY 2003).
  4. 17 U.S.C. § 506(a)(1)(B), (C).
  5. Author[']s Guild, Inc. v. Google, Inc., 770 F. Supp. 2d 666, 675 (SDNY 2001) ("The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties.")

17 June 2014

HathiTrust
V. Trees

 

C. The Underbrush

Suing HathiTrust (in essay form)
Proposed Settlement With Google (in essay form)
Suing Google (in essay form)

 

The Second Circuit also dealt with two other theories of fair use in the HathiTrust opinion. One of them it got outright incorrect, but to no effect: There was an alternate, specific, statutory privilege. The other one... not so much. Of anything.

The easy discard is the Second Circuit's analysis of "access to the print-disabled" as a fair use. The Court makes the following admission of an "oopsie" right up front: "In light of our holding, we need not consider whether the disability-access use is protected under the Chafee Amendment, 17 U.S.C. § 121."71 Unfortunately, this error opens the door for further review, because the Court (and the parties) ignore the legal interpretation lemma that a specific term overrides general ones — that the specific privilege accorded by the Chafee Amendment would have been relevant, and thus needed to be considered, regardless of the fair use decision. Indeed, this decision would have been more helpful to everyone had this aspect been founded on the specific statutory provision regarding blind and disabled access. Unfortunately, the parties — probably because they were afraid of diving into the seldom-interpreted waters of the Chafee Amendment, an area seriously undermined because nowhere does the Copyright Act define what, or who, qualifies as a "library" — blew it and never squarely presented the issue below, meaning that it wasn't directly ruled upon by the trial court.

Then, on top of that, the Second Circuit's fair-use analysis of access to the print disabled is rather dodgy... and I say that even though I think that it (narrowly) reaches a the right result. The primary problem appears in its analysis of the first fair use factor, in which it backs away from "transformative use" as the paradigmatic instance of fair use.72 The analysis essentially skips the second and third factors and discounts potential markets for the fourth factor without examining why the market appears so limited: Primarily problems with the distribution system, not with anything else. And lurking behind is the fifth fair-use factor. As the Court of Appeals acknowledges, the problem is not with whether the authors make the material available; it is whether the publishers do... and if the experience this century with electronic books demonstrates nothing else, it is that publishers are remarkably poor at anticipating and filling actual market needs.73

Turning to the last area, the Second Circuit quite rightly punts the "preservation of works" argument as not ripe. Bluntly, the parties did such a poor job of investigating this issue — let alone presenting admissible evidence on this issue — that even if it was ready for decision and not merely speculative, it would not justify summary judgment. We'll leave aside, for the moment, that it's a bad theory to start with: There is no realistic probability, given print runs for the works at issue, that a library will neither have in its own collection nor be unable to borrow from another library copies of these works for the span of their copyrights. There are editions of these works either still in print now, or having been printed since the advent of low-acid papers, that will outlast their copyright terms; indeed, even those printed on older paper will still last until expiration of US copyright (at latest, approximately 2055 thanks to the changes in printing technology and practices).


  1. Slip op. at 31 n.7 (hypertext added).
  2. Slip op. at 27–28.

    We'll leave aside for the moment that if this analysis were to be applied to the text-search issue discussed in the slip opinion at 18–19 (and part B above), one would reach a different result: Not a result that rejects fair use, but one that denies summary judgment on fair use for an ill-defined, nonrepresentative subset of all literary works. That is, we're back to civil procedure again. Summary judgment may be granted only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law". Fed. R. Civ. Proc. 56; see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317 (1986); see generally Suja A. Thomas, Summary Judgment and the Reasonable Jury Standard: A Proxy for a Judge's Own View of the Sufficiency of the Evidence? 97 Judicature 222 (2014). Indeed, Professor Thomas's analysis exposes the reality of what appears to be going on here: A group of judges — and lawyers — evaluating evidence and imposing their own preferences without first-hand knowledge of how the creative process for broad categories of copyrightable works actually works, consistent with any of the Constitutional mandate, treaty duty under the Berne Convention, or implementing statute. In short, while charged with (perhaps) deciding, they're not competent to do so. Bleistein v. Donaldson Litho. Co., 188 U.S. 239, 251 (1903) ("It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits").

  3. Then, too, the publishers are not parties for this suit. We have no idea whether the reason that the publishers have not made more works available for the visually disabled relates to the market for those works... or internal publisher evaluation of the profitability of its particular means of meeting that market. (Well, we do, but it's not in the record.) Then, too, the parties and Court do a remarkably poor job of determining whether the 78 works at issue are so available from the publishers (hint: a substantial proportion are), relying upon grandiose general statements made with little factual backup... or acknowledgement of the Library of Congress's own parallel programs.

15 June 2014

HathiTrust
V. Trees

 

B. Indexing As Fair Use

Suing HathiTrust (in essay form)
Proposed Settlement With Google (in essay form)
Suing Google (in essay form)

 

This is where things begin to get... interesting. Remember that this relates only to the works properly in front of the Second Circuit — the 78 specific works on which summary judgment was granted below. Remember, too, that this is about a very specific description of the indexing use:

It is not disputed that, in order to perform a full-text search of books, the Libraries must first create digital copies of the entire books. Importantly, as we have seen, the HDL does not allow users to view any portion of the books they are searching. Consequently, in providing this service, the HDL does not add into circulation any new, human-readable copies of any books. Instead, the HDL simply permits users to “word search”—that is, to locate where specific words or phrases appear in the digitized books. Applying the relevant factors, we conclude that this use is a fair use.

Slip op. at 18. With due respect to the Court, this conflates two distinct infringements: The copying necessary to make the index, and the display of the results from the index. That is simply not consistent with the Second Circuit's own case law — particularly the case law (that was purportedly merely "codified" in the 1976 Act, see slip op. at 16, although anyone who actually reads the case law cited in the legislative history will question that characterization) concerning extraction and use of text as fact. Nonetheless, this conflation may be irrelevant... as the plaintiffs, repeating the mistake of the Guild's ill-implemented complaint against Google, did not properly plead the initial copying as an act of infringement.69 Thus, the Court is left considering only the output and whether it qualifies as fair use, thanks to some bad lawyering.

With that understanding, the Second Circuit's finding that this particular, extremely restricted output form qualifies as fair use is neither unsurprising nor particularly objectionable. But that's the limit. A full KWIC (keyword-in-context) result, showing significant parts of text on either side of the search result, is outside the scope of this opinion. And that is as it should be; by limiting its consideration to the contextless, data-only result, the court avoided actually giving real consideration to the second and third fair use factors, and folded its consideration of the fifth, controlling, nonstatutory fair use factor (administrative convenience) rather silently into the first and fourth fair use factors.70 If Hathi starts providing context around search results — and there is already substantial pressure to do so, which will only increase over time — this decision provides it no cover. Nor should it: That would enable, through a relatively simple recursive script, a user to recover the entire text of the underlying work in ready-to-read form, and the greater the context provided with search results, the easier that script is to validate.


  1. See part III.A, supra; see generally the discussion of the merits in the main GBS essay.
  2. Indeed, the most form-neutral interpretation of "transformative use" turns almost entirely upon the administrative convenience (or, more to the point, inconvenience) of getting permission for every "transformative use" that is not somewhere on the parody/satire spectrum. Cf., e.g., Suntrust Bank v. Houghton Mifflin Co., 257 F.3d 1247 (11th Cir. 2001) with Dr. Seuss Enters. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997) and Mattel, Inc. v. Walking Mountain Prods., 353 F.3d. 792 (9th Cir. 2003).

12 June 2014

HathiTrust
V. Trees

 

Suing HathiTrust (in essay form)
Proposed Settlement With Google (in essay form)
Suing Google (in essay form)

 

So, on Tuesday of this week the Second Circuit issued its opinion in the HathiTrust matter.64 As can be expected, many observers and advocates have been very busy spinning the opinion for their respective preconceived notions that the-law-is-what-the-law-should-be... from all viewpoints. I'm afraid, however, that most of these views miss the forest for the trees... the dead, pulped trees. And, as we'll see as we work through the civil procedure aspects of the matter, it means a lot more and a lot less than it seems to.

A. No Trees Left Standing

The key legal question underlying the entire HathiTrust action is who has standing to complain about whom. The second half of that inquiry was essentially punted by the Second Circuit, although I think it did so without adequate consideration. As I noted when this matter was originally filed, there are significant issues concerning whether many of the library-defendants in this matter can be sued in federal court in the first place; one would hope this would be formally resolved in any future appeals, but the Second Circuit found it either unnecessary or inadvisable to do so in this opinion. That said, the Circuit reached the correct decision regarding "who can sue," albeit on excessive and misleading rhetoric that will prove problematic in other actions... including other aspects of the Google Book Search litigation.

Three of these authors’ associations — Authors Guild, Inc., Australian Society of Authors Limited, and Writers’ Union of Canada — claim to have standing, solely as a matter of U.S. law, to seek an injunction for copyright infringement on their members’ behalf. But, as we have previously explained, § 501 of “the Copyright Act does not permit copyright holders to choose third parties to bring suits on their behalf.” ABKCO Music, Inc. v. Harrisongs Music, Ltd., 944 F.2d 971, 980 (2d Cir. 1991); see also Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 92 (2d Cir. 1998) (“United States law permits suit only by owners of ‘an exclusive right under a copyright’....” (quoting 17 U.S.C. § 501(b))). Accordingly, we agree with the district court that these associations lack standing to bring suit on behalf of their members, and they were properly dismissed from the suit.65

As I remarked before, "associational standing" is quite restrictive. In this particular instance, the Authors['] Guild cannot represent copyrighted properties existing on dead trees in which it did not itself own copyright rights.

And this leads to the first of several rhetorical overstatements — one so serious that it is actual error — in the Second Circuit's opinion. As Judge Baer noted below, without that associational standing, the scope of the case before his was drastically reduced: Not the entire panoply of printed works in the collection of any of the respective libraries, or even all of the works published by any particular publisher that are in the collection of any of the respective libraries, but to a combination of (1) 78 specific works identified on Exhibit A of the First Amended Complaint and (2) those works appearing in the respective libraries that were properly represented by Union des Écrivaines et des Écrivains Québécois, Authors’ Licensing and Collecting Society, Sveriges Författarförbund, and Norsk faglitterær forfattero og oversetterforening. This is one helluva lot narrower than the rhetoric that follows indicates... and because so far as the record indicates it does not include any representative work from between seven and nine of the thirteen publishing industries — most especially, limited-circulation academic monographs (the strongest case for fair use, as we'll see later) and illustrated works of fiction (one of the weakest cases for fair use), this decision is at best persuasive authority regarding those kinds of works, let alone origins. And the less said about porn, perhaps, the better.66

This is a well-deserved knee to the groin of the Authors['] Guild. The organization has shown remarkable tunnel vision concerning electronic rights for the past quarter of a century, always spouting rhetoric and taking actions (and making court filings) consistent with expanding its powerbase and self-appointed and -appreciated role of speaking "for all authors"... including those excluded from membership in the Guild by its own rules, those who have explicitly left the Guild, and those whose exploitation of their own copyrights proceeds on a model either neglected or rejected by the Guild. And that leaves aside poor choices of counsel to proceed on the Guild's behalf, and that is not limited to the Google Books matters. Civilization does not end at the Hudson; neither does the community of authors, nor their efforts to exploit and protect their own visions of their own rights. Put another way — and as revealed by the particular administrative terms proposed in settlement agreements for other Google Books litigation — this is a power grab of the worst kind, reminiscent of the overexpansion of both the Teamsters and the AFL–CIO (then under corrupt influence and/or control, one should note) to encompass wide varieties of unrelated workers and industries. The irony that the Guild cannot even claim to be a labor organization seems to have escaped everyone;67 it is, instead, acting like a cartel. And cartels get little sympathy from me, even when they are purportedly acting against "competing" monopolies.68

Keep those restrictions in mind as we parse the rest of the Second Circuit's decision. Indeed, those restrictions on standing — and on what works are really at issue — will (or at least should) inform both the fair-use result and the scope of the general result.


  1. Authors Guild, Inc. v. HathiTrust, No. [20]12–4547 (PDF) (2d Cir. 10 Jun 2014) (slip op.) ("HathiTrust 2").
  2. Slip op. at 12–13 (hyperlinks added).

    Whether this reasoning and line of cases remains good law in light of Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010), was apparently not raised. It continues to be an ongoing controversy; by the literal wording of the statute, an author could transfer the explicit right to sue a certain class of infringer to the organization and thereby have transferred "an exclusive right under a copyright." That position has been rejected by other courts. See, e.g., Righthaven llc v. Hoehn, 716 F.3d 1166 (9th Cir. 2013); accord, Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d 881, 890–91 (9th Cir. 2005) (en banc) (holding that "exclusive rights" are limited to those listed in § 106 of the Copyright Act, which do not include the right to sue to stop infringement). However, the Supreme Court implicitly held in Muchnick that a class representative would have such standing, despite not owning the respective right to any work other than her own. Perhaps the reasoning continues to apply to associational standing without modification; the bare statement made in this opinion, however, is too broad.

  3. Cf., e.g., Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159–71 (9th Cir. 2007) (citing Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004) (in which my efforts continue to make the 'net safer for free airbrushed porn to this day)).
  4. This is a critically important question for another time. As a matter of law, unions in the US (whether they're called "union", "association"... or "guild") are limited to employees, each of whom passes the multifactor IRS test for distinguishing between "employee" and "independent contractor." One slightly outdated explanation of this test appears in Joint Committee on Taxation, Present Law and Background Relating to Worker Classification for Federal Tax Purposes (PDF) 3–5 (2007). An even cursory examination of this list of factors (neither exhaustive nor, in detail, the current state of the law) discloses that freelance authors simply are not "employees"... and therefore are not eligible to unionize. Whether freelance authors — and artists, and musicians, and so on — should be so eligible is a separate question. The irony that only those creating work for hire (none of whom can be properly represented by the Guild in this litigation, because none of them own any exclusive copyright rights either) can be "employees" is perhaps a bit much. And if a group of otherwise independent businesses gets together and colludes to restrict price, output, or anything else, we call that an antitrust violation.
  5. [T]he remedy for illegal [antitrust] conduct is a complaint lodged with the proper law enforcement offices or a civil suit or both. Another company's alleged violation of antitrust laws is not an excuse for engaging in your own violations of law. Nor is suspicion that that may be occurring a defense to the claims litigated at this trial.

    United States v. Apple, Inc., 952 F. Supp. 2d 638, 708 (S.D.N.Y. 2013). I'm sure that the highly sophisticated readers of this blawg understand full well that although the law is not a seamless web — indeed, and particularly in the arts, it's pretty damned seamy — there's considerable overlap... and that the relationship between antitrust and intellectual property is particularly close (and particularly seamy).