Great panel at IPSC on orphan works, library digitization and fair use

In “The Orphans, the Market, and the Copyright DogmaAriel Katz notes that extended collective licensing (ECL) proposals will do nothing to solve the underlying orphan works problem. Like “Indulgences” ECL solutions merely absolves the “sin” of using works without permission, but actually does nothing to pay the absent owners.

In “How Fair Use Can Help Solve the Orphan Works ProblemJennifer Urban does a great job of explaining how the rest of us have under-analyzed the second fair use factor in relation to library digitization. She points out that in the Senate Report on the 1976 Copyright Act they say directly that market availability is part of the nature of the work.

In my own paper “Orphan Works as Grist for the Data Mill” I explain why copyright does not stand in the way of nonexpressive uses. My argument is that just as the distinction between expressive and nonexpressive works is well recognized. The same distinction should generally be made in relation to potential acts of infringement.

Copying for purely nonexpressive purposes, such as the automated extraction of data, should not be regarded as infringing.  Automated reproduction for nonexpressive uses (such as search engines, plagiarism detection, and macro-literary analysis) does not communicate the author’s original expression to the public, there is no expressive substitution, and thus there is no infringement. For more on Copyright and Copy-Reliant Technology, read my 2009 article of the same name.

What is at stake in Authors Guild v. Google; Authors Guild v. HathiTrust

Now that the Google Book Settlement is well and truly dead, attention is turning back to the underlying legal controversy. There are many issues in Authors Guild v. Google and the parallel case of Authors Guild v. HathiTrust, but the main one is simple. Does copying books so that computers can analyze them infringe copyright even if none ever reads that copy?

If the answer is yes, then, through the magic of class action law, the Authors Guild gets to sue Google for a minimum of $750 x several million books. Who would get these billions of dollars is unclear.

If the answer is no, then the Authors Guild would have to point to instances where Google has made a nontrivial portion of a book available to the public without permission of justification such as fair use. There might be one or two of these, but I think Google won’t loose sleep about statutory damages for a handful of books.

I recently wrote an amicus brief, along with Matthew Jockers (Assistant Professor of English at the University of Nebraska, Lincoln) and Jason Schultz (Assistant Clinical Professor of Law; Faculty Co-Director, Samuelson Law, Technology & Public Policy Clinic), arguing that such non-expressive is use fair use. I.e., that text-mining is not copyright infringement.

More than 60 professors and researchers in the digital humanities joined our brief because, as we said:

“If libraries, research universities, non-profit organizations, and commercial entities like Google are prohibited from making non-expressive use of copyrighted material, literary scholars, historians, and other humanists are destined to become 19th-centuryists; slaves not to history, but to the public domain. History does not end in 1923. But if copyright law prevents Digital Humanities scholars from using more recent materials, that is the effective end date of the work these scholars can do.”

This is what is at stake.

Authors Guild asks Judge to Ignore the Digital Humanities

Counsel for the Authors Guild have asked the court to deny our motion for leave to participate as amici in the case of Authors Guild v. Google.

On Friday August 3, 2012, the Association for Computers and the Humanities and a group of 64 scholars from disciplines including law, computer science, linguistics, history and literature filed an amicus brief on behalf of the Digital Humanities urging the court in Authors Guild v. Google to grant summary judgment in favor of the defendant.

In its 10 page memorandum in opposition the Guild argues that “It is inappropriate for these entities to inject themselves into private litigation.” This seems a bit rich given that the Authors Guild, a group of some 8500 authors, is trying to assert the right to say no to digitization of over 20 million books. That is leverage on a ratio of more than 2000:1. The Guild is trying to set a legal precedent that would render text-mining without individual permission in any context unlawful. Digital Humanities scholars should not be relegated to studying literature prior to 1923.

This case is not a private arbitration, it will establish an important precedent that either confirms the legitimacy of search engine technology, plagiarism detection software and computerized analysis of text.

The Guild says that our brief simply argues Google’s case and does not have anything to add. Yet at the same time they complain that the digital humanities scholars seek to inform the court about “text-mining and computation analysis”.

The Guild also argues that our legal argument that non-expressive use should be fair use is really just a disguised expert opinion. No doubt, if I was deposed as an expert witness they would complain that my views were just legal argument in disguise.

The digital humanities brief is not, as the Guild contends, asking for an advisory opinion. The brief alerts the court to the important implications of its ruling and highlights what the Authors Guild tries to obfuscate, that this case is much bigger than Google, it’s about the future of humanities scholarship.

The Author’s Guild argues that it is not fair that the digital humanities scholars (and another brief filed by the American Library Association) will each add another 26 pages to their workload.  1056 documents have been filed in this case! It is hard to see the burden of another 26 pages.

Judge Deny Chin (Southern District of New York) is scheduled to hear the parties’ motions for summary judgment on October 9, 2012.

Make Me Walk, Make Me Talk, Do Whatever You Please: Barbie and Exceptions, Rebecca Tushnet

Rebecca Tushnet had some interesting things to say at IPSC today about the multiple meanings of Barbie®. She makes an excellent point that trademark defenses will only be accessible to people without lawyers (i.e., most people) if they are based on balancing tests or a rule of reason analysis (like copyright fair use) and the current maze of factors, hurdles and hierarchies. See for a summary of several Barbie related copyright and trademark controversies.