My #IPSC slides – Copyright & Compulsory Licenses

IPSC 2013 (Matthew Sag)

Recent proposals to address library digitization through variations of compulsory licensing raise some important questions about the justification for compulsory licenses, the institutional design considerations that should go into any compulsory license regime and the relationship between fair use and compulsory licensing. For the most part, compulsory licenses are no substitute for fair use. Although fair use can be explained in terms of ‘market failure’ in the most abstract sense, in practice most fair uses are not simply the result of high cost of transacting, or if they are, these are not the kinds of transaction costs that can be resolved by a one-size-fits-all compulsory license. Compulsory licenses can be socially beneficial in theory, but they can be extremely problematic to administer in practice. A good compulsory license system may be an effective complement to fair use, but the case for crowding out fair use with compulsory licenses is weak.

In this presentation I explain six important institutional design considerations that must be addressed before anyone can seriously advocate establishing a copyright collective by legislative fiat.

Institutional Design Issues

  • Rate-Setting {who decides? what decision standard? how does the decision-maker get reliable information?}
  • Monopoly Pricing
  • Principal-Agent Problems
  • Mission Creep
  • Stifling Innovation
  • Overshadowing other policy imperatives


No one prints email anymore. Use shorter email signatures.

No one prints email anymore! Or, if they do it isn’t because they need ten additional lines of clutter giving them the same information over and over again.

I realized the other day that my email signature was taking up about ten lines of text. This is ugly and stupidly inefficient. I solved this problem by creating hyperlinks that tell people everything they need to know or point them where to find it out.

Screen Shot 2013-07-12 at 1.00.27 PM


There is no reason why the link to my ssrn working papers has to say “” it just needs to point there.
An easy way to do this is by creating the links in a draft email. Screen Shot 2013-07-12 at 1.08.55 PM

Then cut and paste that into your email signature and format according to taste.

Digital Humanities amicus brief in Authors Guild v. Hathitrust has been filed, and is now available

Brief of Digital Humanities and Law Scholars as Amici Curiae in Authors Guild v. Hathitrust

This Amicus Brief was filed in the United States Court of Appeal for the Second Circuit in the case of Authors Guild v. Hathitrust on June 4, 2013. The case is on Appeal from the United States District Court for the Southern District of New York, No. 11 CV 6351 (Baer, J.)

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Download from (

a brief summary

Amici are over 100 professors and scholars who teach, write, and research in computer science, the digital humanities, linguistics or law, and two associations that represent Digital Humanities scholars generally.

Mass digitization, especially by libraries, is a key enabler of socially valuable computational and statistical research (often called “data mining” or “text mining”). While the practice of data mining has been used for several decades in traditional scientific disciplines such as astrophysics and in social sciences like economics, it has only recently become technologically and economically feasible within the humanities. This has led to a revolution, dubbed “Digital Humanities,” ranging across subjects like literature and linguistics to history and philosophy. New scholarly endeavors enabled by Digital Humanities advancements are still in their infancy but have enormous potential to contribute to our collective understanding of the cultural, political, and economic relationships among various collections (or corpora) of works—including copyrighted works—and with society.

The Court’s ruling in this case on the legality of mass digitization could dramatically affect the future of work in the Digital Humanities. The Amici argue that the Court should affirm the decision of the district court below that library digitization for the purpose of text mining and similar non-expressive uses present no legally cognizable conflict with the statutory rights or interests of the copyright holders. Where, as here, the output of a database—i.e., the data it produces and displays—is noninfringing, this Court should find that the creation and operation of the database itself is likewise noninfringing. The copying required to convert paper library books into a searchable digital database is properly considered a “non-expressive use” because the works are copied for reasons unrelated to their protectable expressive qualities — the copies are intermediate and, as far as is relevant here, unread.

The mass digitization of books for text-mining purposes is a form of incidental or “intermediate” copying that enables ultimately non-expressive, non-infringing, and socially beneficial uses without unduly treading on any expressive—i.e., legally cognizable—uses of the works. The Court should find such copying to be fair use.

Some observations on the Authors Guild’s Appeal Brief in Authors Guild v. Hathitrust (Part 1)

Introduction and Necessary Disclaimer

This is the first in a series of posts concerning the Authors Guild v. Hathitrust case. Most of the posts will be commentary on the Authors Guild Appeal Brief (February 25, 2013). Although I am one of the authors of the Digital Humanities and Law Scholars Amicus Brief, the views expressed on this site are purely my own. My comments on the Authors Guild Appeal Brief will not be comprehensive, rather, my aim is to review the aspects of the brief that I found interesting.

Authors Guild v. Hathitrust – Essential Background

Chances are that if you are reading this blog, you are well aware that Google has been mired in copyright litigation regarding its library digitization project. Google was sued by the Authors Guild (among others) in a class action on behalf of all authors in 2005. A controversial settlement of that class action proposed in 2008 generated a maelstrom of objections. The settlement was revised in 2009, but ultimately rejected by Judge Deny Chin in the Southern District of New York in March 2011. Authors Guild v. Google is ongoing (the class action certification is being appealed by Google, if Google loses its appeal that case goes back to Judge Chin in the Southern District of New York).

In September 2011, the Authors Guild (among others) filed claims for copyright infringement against the universities of Michigan, California, Wisconsin, Indiana and Cornell University for participating in the Google Book project. The Guild’s complaint with respect to the universities is, first, that they allowed Google to digitize their library collections, second, that the universities accepted corresponding digital files from Google and have consolidated those files into a shared digital repository known as the HathiTust digital library, and third that the universities’ proposed orphan works project (OWP) amounts to copyright infringement.

This is speculation on my part, but the Authors Guild may have been banking on a favorable ruling from Judge Chin being handed down before their separate case against the universities went to judgment. If so, they miscalculated. (If not, I honestly can’t understand why they did not drop the suit against the HathiTrust – it is usually not a great idea to run the same legal argument against more sympathetic defendants when you have a choice. That said, I am sure that the plaintiffs were well advised and had sound reasons for their tactics – it is just had to see from the outside what those reasons might have been.)

Authors Guild v. Hathitrust moved fairly quickly to the summary judgment phase. Oral argument was held on August 6, 2012 in the United States District Court for the Southern District of New York in front of Judge Baer. On October 10, 2012, Judge Baer ruled against the plaintiffs and held that two key aspects of the library digitization program and the HathiTrust were “transformative” as that term of art is used in copyright cases and, on balance, fair use.

Judge Baer approved library digitization

  1. to fulfill the requirements of the Americans with Disabilities Act by making suitable versions of books available to the visually impaired and
  2. to engage in non-expressive uses such as text-mining and building a search engine.

The Judge also held that the domestic ‘Associational Plaintiffs’ (e.g. the Authors Guild and similar organizations) did not have statutory standing under the Copyright Act and that the claims involving the Universities’ OWP were not ripe for adjudication.

Understandably, the Authors Guild and their fellow plaintiffs are now pursuing their appeal rights. The next post takes a deeper look at the Authors Guild Appeal Brief.

Some thoughts on the correct pronunciation of Sag

My Hungarian grandparents Nick and Lily fled Hungary in 1939. They traveled on foot with my infant father to a port in Italy. Nick made a dangerous side-trip to Paris to get money to bribe his way onto a ship bound for Australia and to pay the landing money the Australian government required of jewish immigrants. I am proud of my grandparents and my extended family in Europe, the U.S. and Australia. Also, although I have never actually visited Hungary, I have a certain sentimental attachment to that country as well.

Nonetheless, I have decided to officially give up on the correct pronunciation of my family name. I don’t speak Hungarian, I can’t actually pronounce my name with a Hungarian accent. My closest American relative assures me that it should be pronounced ‘Sag’ with a long ‘a’ (á as in father) or you might imagine a british person to say saga.

After more than a decade of trying to tow the line this I have decided that the whole enterprise is futile and misguided. My attempts to get the world to adopt an Americanized Hungarian pronunciation have not been that successful. For example, I heard one of my friends massacre the “A” in Matt (sounded like mARt, to make it the same as the “A” in Sag.

Feel free to try any pronunciation of Sag that you like, but from now on my official policy is that, just as Matt rhymes with cat, Sag rhymes with bag.

Other famous Sag’s include: the Sag gene which encodes the S-arrestin protein in humans; the

  • Saudi Arabian Government; various
  • State Attorneys General; the
  • SQL Access Group and the
  • Screen Actors Guild.

Sâg is also a village in Sălaj County, Romania. I have no idea how they say it.

Richard Stallman will be joining us at Loyola Chicago to discuss Patents, Innovation and the Freedom to Use Ideas. Should be interesting.

The Loyola law Journal has organized another great conference.

This one day conference will provide a forum for nationally recognized scholars and judges to discuss the trade-off between two interests of the public: the interest in development of new ideas and the interest in freedom to use ideas. The patent system is intended to serve the former, but imposes a cost on the latter. More specifically, the Conference will explore whether the added innovation achieved by the patent system justifies its cost to society, whether it operates within the Constitution’s requirements, whether improvements can be made, and whether a different system or no system at all might be preferred.

Richard Stallman will be giving a special address on “Questioning the Assumptions of the Patent System”

April 11, 2013.

More details are available at



Symposium on Copyright Law and Gray Market Goods, John Wiley & Sons v. Kirtsaeng

Symposium on Copyright Law and Gray Market Goods, John Wiley & Sons v. Kirtsaeng

The DePaul Journal of Art, Technology & Intellectual Property Law is sponsoring a symposium on Copyright Law and Gray Market Goods, John Wiley & Sons v. Kirtsaeng on April 8, 2013 (12 – 3 p.m.)

In John Wiley & Sons, Inc. v. Kirtsaeng, 654 F.3d 210 (2d Cir. 2011), a publishing company brought an action against a defendant who was importing and selling textbooks within the United States. The defendant had relatives in Thailand purchase foreign editions of textbooks that were legally printed abroad. The relatives would send the textbooks to the defendant and the defendant would sell them for a profit. On appeal, the defendant argued that he should have been allowed to put forth a first sale defense.

The 2nd Circuit affirmed the district court’s rejection of a first sale defense based on a plain language interpretation of 17 USC § 602(a) and 17 U.S.C. § 109(a) and some dicta in Quality King Distributors, Inc. v. L’anza Research International, Inc., 523 U.S. 135 (1998). (Quality King involved goods that were manufactured within the United States, sold abroad and then re-imported). The Supreme Court granted certiorari. Oral arguments were heard on Oct. 29, 2012.

On March 19, 2013, Justice Breyer, writing for a majority of six, emphatically rejected the publisher’s control over the importation of legally manufactured “gray-market” products. The Court held that the “first sale” doctrine, which allows the owner of a copyrighted work to sell or otherwise dispose of that copy as he wishes, applies to copies of a copyrighted work lawfully made abroad. Justice Kagan filed a concurring opinion in which Justice Alito joined. Justice Ginsburg filed a dissenting opinion in which Justice Kennedy joined, and in which Justice Scalia joined except as to Parts III and V–B–1.

The slip opinion is available here.


Professor Tyler Ochoa, Santa Clara University College of Law

Kevin Tottis, Principal, Law Offices of Kevin Tottis

Professor Matthew Sag, Loyola University School of Law

Robert Paul, Director of Business Operations, Compass Lexecon

For registration pricing and event details, please visit:

I am the University of Technology Sydney today to make friends with the robots and talk about copyright

I am a guest this morning at the University of Technology Sydney’s “Innovation and Technology Research Laboratory”, better known within UTS as The Magic Lab. The Magic Lab has a broad spectrum of research interests including robot soccer, humanoid robotics, belief revision, virtual worlds, cognitive marketing, collaboration, risk management, commonsense reasoning and technology-driven innovation in addition to strategic, social and legal aspects of innovation.

As part of my visit today I will be presenting to the Engineering and information technology department as part of their Leadership in Innovation Seminar series. My presentation will address the interaction of copyright law and digital technology.

Your TV is watching you – Where does it end?

News reports (extremetech) indicate that Microsoft has filed for a patent whereby

“The users consuming the content on a display device are monitored so that if the number of user-views licensed is exceeded, remedial action may be taken.”

No doubt George Orwell’s Telescreen (from the novel 1984) will be cited as prior art in opposition. The Telescreen allowed the Party to keep its subjects under constant surveillance thereby encouraging a climate of self surveillance. Replace ‘the Party’ with MPAA and you pretty much have it.

HT: Francis K – who brought this story to my attention.