• July 25, 2011
    Guest Post

    By Eduardo M. Peñalver, Professor of Law, Cornell Law School

    If one definition of insanity is doing the same thing over and over while expecting a different result, then the “Protect IP Act” surely counts as confirmation (as if any were needed at this point) that our IP system and its beneficiaries have become genuinely unhinged.  The bill’s name is supposedly short for the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011,” but can anyone doubt that the sponsors came up with the acronym first and then brainstormed ways to generate it?  It is backed by the usual industry suspects, including the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA), and Viacom. 

    Protect IP attempts to provide new legal tools for going after websites located outside the United States who post infringing material.  Sponsored by (among others) Democratic Senator Patrick Leahy, it empowers federal courts to, in effect, “disappear” web sites that are “dedicated to infringing activities.”  Most significantly, the bill creates a procedure by which the Department of Justice can bring an action in federal court to request an order that, if granted, it can then use to compel domain name servers, search engines, and even (arguably) websites that link to the offending site, to delete references to the blacklisted site, apparently with the aim of making it impossible for users to reach the infringing content. 

    Much of the criticism of the proposed law has focused on the vagueness of its terms and the threat this may pose to First Amendment values.  What does it mean for a site to be “dedicated to infringing activities”?  Would the law, for example, make it possible for the U.S. government to block access to WikiLeaks by, among other things, punishing anyone who links to the site?  Commentators have also criticized the lack of procedural safeguards before a blacklist order may issue.  Although I agree with all of these concerns, I am more interested in the evidence the bill provides that a significant contingent of content providers (and therefore members of Congress eager to do their bidding) remain convinced that the solution to the problem of online piracy lies in reflexively ratcheting up the legal sanctions for infringement. 

  • May 26, 2011
    Infringement Nation
    Copyright 2.0 and You
    John Tehranian

    By John Tehranian, the Irwin R. Buchalter Professor of Law at Southwestern Law School and the Biederman Entertainment and Media Law Institute in Los Angeles, California, and a founding partner of One LLP.

    Shortly after taking office in 2009, President Barack Obama announced that he would end the use of Guantanamo Bay as a detention camp for enemy combatants in the war on terrorism.  Although it appears increasingly unlikely that the President will achieve this goal any time in the near future, the eventual closing of the facility would potentially do away with a number of controversial policies.  Of those practices, one of the more unusual was the military’s arguably infringing use of music on the prisoners. The soundtrack to Guantanamo Bay, it turns out, was replete with copyrighted songs meant to addle and unnerve, especially on repeat. And, apparently, the government lacked an appropriate license to publicly perform these songs. 

    As a preliminary matter, the playlist at Guantanamo — at least during the Bush years — was, according to press reports, filled with curious choices. For example, it included Fuck Your God — a particularly bizarre selection considering the Bush Administration’s religiosity and the federal government’s position, through the FCC, on the use of indecent language in other contexts. Guantanamo Bay’s Top Ten List — the songs most frequently played to interrogate prisoners — featured a perverse smorgasbord of heavy metal, children’s music, and (seemingly) patriotic stadium rock:

  • March 24, 2011
    Guest Post

    By James Grimmelmann, Associate Professor of Law, New York Law School.

    On Tuesday, Judge Denny Chin quietly deflated the Google Books settlement. His long-awaited opinion in Authors Guild v. Google, Inc. rejected a proposed settlement, which would have given Google the right to sell electronic copies of out-of-print books. The opinion is short, readable, and filled with eloquent quotations from objections, many filed pro se. It moves quickly through more issues than I could discuss in a blog post, so here I'll focus on its central holding, that this kind of "forward-looking business arrangement" is simply beyond the court's power to approve under Rule 23.

    The basic issue posed by the settlement has always been that it turns an ordinary class action inside-out. The underlying lawsuit, filed in 2005 by authors and publishers, objected to Google's program to scan books, index them, and show short "snippets" of a few sentences as search results. In the normal course of things, this suit would have proceeded to a judgment, either that Google infringed copyright or that its book search engine was protected fair use.

    And ordinarily, any settlement would have fallen somewhere between those two possibilities. Perhaps it would have allowed Google to continue some of its scanning but not all of it, and perhaps Google would have paid copyright owners, but not as much as they could have won at trial. It would have been, in short, a genuine compromise between the parties' legal positions.

    When the settlement was proposed in 2008, and amended in 2009, however, it had metastazied into something much more ambitious: a combination of universal library and ultimate bookstore. Google would use its scans to sell complete digital copies of the books to consumers and libraries. It would keep 37 percent of the revenue, and the remaining 63 percent would be split between authors and publishers according to a complicated formula. The whole thing would be subject to an intricate, almost Rube Goldbergian governance scheme involving Google, authors, publishers, libraries, and a new Book Rights Registry to keep track of everything.

  • March 22, 2011
    The epic legal drama continues over Google's effort to digitize millions of books for a universal library.

    Federal Judge Denny Chin has rejected a class action settlement that Google had reached with a coalition of authors and publishers, saying the settlement "would simply go too far."

    Chin continued, that the settlement would "grant Google significant rights to exploit entire books, without permission of the copyright owners," and give Google "a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case."

    The Google books project was challenged in federal court by the Authors Guild and Association of American Publishers. In 2009 a settlement between the parties was reached, stating that Google could create a registry of books and pay $125 million to people whose copyrighted books have been scanned and to locate the authors of scanned books who have not come forward, Reuters reports. The settlement, Bloomberg notes, would have also provided Google "immunity from copyright laws, allowing the company to distribute millions of books on the Internet in exchange for sharing the revenue it would generate."

    Responding to Judge Chin's 48-page opinion, the Authors Guild said in a press statement that it "lauds the many benefits of the settlement," and "has left the door open for a revised agreement. In his conclusion, Judge Chin says that ‘many of the concerns raised in the objections would be ameliorated if the ASA [the Amended Settlement Agreement] were converted from an ‘opt-out' settlement to an ‘opt-in settlement. I urge the parties to consider revising the ASA accordingly.'"

    Hillary Ware, a managing counsel for Google, expressed disappointment in Chin's opinion, saying the company was considering its options," The Wall Street Journal reports.

    "Like many others," Ware added, "we believe this agreement has the potential to open-up access to millions of books that are currently hard to find in the U.S. today."

    In an ACS Issue Brief, James Grimmelmann, a law professor at New York Law School's Institute for Information Law and Policy, examined the Google Books settlement. David Balto, a senior fellow at the Center for American Progress also explored the settlement in this guest post for ACSblog.

  • February 25, 2011
    Google's massive effort to create a digital database of books is still tangled in a class action lawsuit, and as Marc Rotenberg, executive director of the Electronic Privacy Information Center (EPIC) tells Politico Pro, a subscriber-based service, was "entirely based on giving Google control over many of the nation's historic library resources and then be a gatekeeper for who could get access to those materials."

    In his interview with Politico Pro, Rotenberg expounded on the legal battle over the Google books project, adding that it was "taking materials that were freely available and now seeking to charge for them. And also was hoping to collect a great deal of information from people wanting to get access to the materials."

    In an ACS Issue Brief, James Grimmelmann, a law professor at New York Law School's Institute for Information Law and Policy, outlined similar concerns, writing that "Google has been systematically making digital copies of books in the collections of many major university libraries. It made the digital copies searchable through its web site - you couldn't read the books, but you could at least find out where the phrase you're for appears within them. This outraged copyright owners, who filed a class action lawsuit to make Google stop." The settlement of the class action has not been resolved, but in his Issue Brief Grimmelmann asserted that the settlement "would give Google a license not only to scan books, but also to sell them."

    Rotenberg also told Politico Pro that he believes "Google is posing the greatest privacy challenges to the future of the Internet. The reason for that is simple: Google exercises a dominant position over most of the essential Internet services. That includes search, e-mail, advertising, online video and increasingly the Web browser. Each one of those activities involves intensive data collection. The risk associated with Google's dominance of the Internet leads very directly to growing concerns about the privacy."