Law 897: Peter Keros’s Assignment for November 6: Mass Digitization

In all of the following readings, remember that there are 4 parties of interest when it comes to mass digitization:

1. Authors

2. Copyright owners (read: publishers)

3. Google

4. Public

Consider how each of these parties are being represented in the following readings and what the fairest approach would be.

Google Books

For a basic understanding of what Google is doing, read sections I.A-D of this Note by Emily Anne Proskine (pages 3-8, 21 Berkeley Tech. L.J. 213). Long story short, five university libraries (including Michigan) are allowing Google to digitize their collections and to monetize the digital copies. This digitization is taking place without express permission from the original copyright holders, which is copyright infringement.

Several lawsuits have arisen from Google’s actions, which prompted a class action settlement negotiation with the Author’s Guild, a prominent professional society for authors focusing on authors’ rights, particularly in copyright protection. Some of the key components of the settlement are:

1. Google gets the non-exclusive right to continue to digitize books and sell access to them.

2. Google will pay Rightsholders 70% of future net revenues from these digitized books.

3. Rightsholders can ask that their works be excluded from any or all of the digitization process (the "opt-out"procedure).

4. Google pays Rightsholders a minimum of $60 per work for prior copyright infringement.

5. Google does not incur liability for future acts of copyright infringement, in particular, out-of-print books can be digitized without permission of the Rightsholders until said Rightsholders ask to opt out.

The settlement agreement was rejected by Judge Chin of the Southern District of New York; read the excerpted opinion of Author’s Guild v. Google, 770 F. Supp. 2d 666 (SDNY 2011).

Consider the following questions:

1. How are the four parties of interest represented by the ASA?

2. Do you agree that the right of authors to exclude others from their works supersedes the provisions of the ASA?

3. If the royalty payments were sent directly to the authors, does that change your opinion of the ASA?

After the ASA was denied, the litigation continued, and Judge Chin granted class certification for a class of authors (optional: the district court opinion). On appeal to the 2d Circuit Court of Appeals, the court vacated Chin’s order and remanded to consider Google’s fair use defense, which could moot the litigation. Read the appellate opinion, 721 F.3d 132 (2d Cir 2013), and 17 U.S.C. 107, codifying the fair use defense. Skim the section of Google’s appeal brief that discusses fair use (pages 34-44 of the pdf).

1. Does Google’s fair use argument make sense? That is, is it fair to aggregate the fair use of several authors or should the fair use be determined individually?

2. How do the four statutory factors of fair use comport with Google’s mass digitization? Does Google have a shot?

3. Should Judge Chin have considered Google’s fair use arguments before certifying the class?

Take a break. You’ve done lots of reading. Go get some coffee, kick your feet up, and think about something else for a while. I’ll wait.

You’re back? Okay, let’s keep going.

Special Interests of Libraries?

Read these excerpts from Author’s Guild v. HathiTrust, 902 F. Supp. 2d 445 (SDNY 2012). Much of it is familiar, but it fleshes out the fair use considerations and adds the interests of blind and disabled users. Skim 17 U.S.C. 108 for libraries’ special privileges and 17 U.S.C. 121 for disabilities.

1. Judge Baer makes a much stronger fair use argument. Do you agree with him? Is your opinion now different than with the ASA?

2. Is the fair use argument limited for blind users or does this opinion open the door for mass digitization access for all?

3. Baer punts on the orphan works issue, but what do you think of the opt-out plan for orphan works? Do an attempt to contact the copyright holder and a 90-day post seem like enough?

4. Why do Judge Baer and Judge Chin come out to completely different opinions? Are judges just weird or is there a key difference between these two cases?

5. How do you think the 2d Circuit will hold on HathiTrust’s appeal? (optional: some thoughts on the Plaintiff’s opening brief in the appeal.)

Taking hints from other digital media laws

Read 17 U.S.C. 117 on backup copies for software.

1. Should this provision be extended to cover archiving digital copies of books as well? That is, should a library be able to archive its collection digitally without even reaching the question of fair use?

2. Extending this further, should a person in general be able to archive their print books? That is, does owning a book entitle me to the physical ink and pages alone or to the entirety of the content therein?

One last thought: with the digitization of books likely to continue in the future, does it make sense to move to a blanket licensing model for access to books? That is, can I pay a subscription fee to someone like Google, Amazon, or HathiTrust and have complete access to their digital libraries? Should authors be forced to attach themselves to a larger company in order to receive compensation? Would this essentially eliminate traditional libraries?

Go to the syllabus or to Maki’s assignment.