Google files motion to dismiss

"The claims of the associations should be dismissed without leave to amend because they lack standing as a matter of law, since they do not themselves own copyrights and do not meet the test for associational standing set forth in Hunt." p. 19

With that conclusion, Google has filed a motion asserting that the copyright infringement lawsuits filed by the Authors' Guild and the American Society of Media Photographers, Inc. be dismissed. The arguments made in the document are:

• "Individual copyright owners' participation is necessary to establish a claim for copyright infringement." (p.1)
• "Plaintiff associations do not own copyrights alleged to have been infringed, and do not have standing to sue for copyright infringement." (p.4)
• "Every copyright, and every alleged copyright infringement, is different."(p.7)
• "... a central issue in these cases is whether the conduct alleged in the Complaints constitute fair use under 17 U.S.C. 107. Litigating that issue will require the participation of individual association members, because many of the relevant facts are specific to the particular work in question." (p.11)

All of this sounds plausible to this legal novice, but there are a couple of puzzling issues. First, why did Google not make these arguments in 2005 when the Authors' Guild filed suit? Instead, they negotiated with the association for six years, presumably in good faith, and those negotiations hinged on the acceptance of the AG as a representative of authors and their rights in their works. If Google had thought that the AG did not have standing, none of that negotiation would have made much sense.

Second, Google says in this document that fair use has to be determined on a case-by-case basis. They even quote from Campbell v. Acuff-Rose Music, Inc. that "Fair use must 'be judged case by case, in light of the ends of the copyright law....' It is 'not to be simplified with bright-line rules." (p.11) This seems to undermine Google's original defense that copying for the purposes of creating an index is itself fair use, not something that has to be determined on a case by case basis.

It isn't surprising the Google wants to bring an end to this case. It is now entering its seventh year (the original suit was filed in September of 2005), and has undoubtedly been costly for all parties. Google was moving ahead in putting into place the foundations for the settlement, including the creation of a large database of works and a means for owners to claim the copyrights. They had designated a director for the Book Rights Registry, which would administer the business agreed on in the settlement. The failure of the settlement and the amended settlement to get court approval meant that all of that effort was for naught. Yet it isn't clear to me (and I hope someone can speak to this) what practical outcome Google is seeking for its book digitization effort. A dismissal of this nature would put Google in the rather cynical position of continuing book scanning knowing that few individual authors will have the means to take Google to court, and those individual payments would probably be affordable for this multi-billion dollar company. If dismissal is rejected, then at least that aspect of the suit is clarified, but next steps surely will be that the suit goes forward as first entered.

The one thing that is clear is that negotiations between Google and the AG are no longer on the horizon.

Note, also, that the Authors Guild has filed suit against the HathiTrust for copyright infringement, and the decision here will no doubt reflect on that case as well.

National Library of Sweden and OCLC fail to agree

In a blog post entitled "No deal with OCLC" the National Library of Sweden has announced that after five years they have ended negotiations with OCLC to become participants in WorldCat. The point of difference was over the OCLC record use policy. Sweden has declared the bibliographic data in the Swedish National Catalog, Libris, to be open for use without constraints.

"A fundamental condition for the entire Libris collaboration is voluntary participation. Libraries that catalogue in Libris can take out all their bibliographic records and incorporate them instead into another system, or use them in anyway the library finds suitable." (from the blog post)

This is an example of the down-stream constraint issues that we discussed while working on the Open Bibliography Principles for the Open Knowledge Foundation. While open data may appear to be primarily an ideological stance it in fact has real practical implications. A bibliographic database is made up of records and data elements that can have uses in many contexts. In addition, the same bibliographic data may exist in numerous databases managed by members of entirely different communities. Someone may wish to create a new database or service using data coming from a variety of sources. At times someone will want to use only portions of records and may mix and match individual data elements from different sources. Any kind of constraints on use of the data, including something as seemingly innocuous as allowing all non-commercial use, require the user of the data to keep track of the source of each record or data element. Practically this means that an application using the mix of data is effectively constrained by the most strict contract in the mix. 

The Swedish library was concerned that their participating libraries would be hindered in their future systems and activities if any limitations were placed on data use. In addition, they would not be able to share their data with the Europeana project, as Europeana requires that the data contributed be open precisely because of the complications of managing hundreds or thousands of different sources with different obligations.

As many of us pointed out during the discussions about the OCLC record use policy, the practical problems of controlling down-stream use of data are insurmountable. Some people argue that the record use policy hasn't affected libraries using WorldCat, but my experience is that the policy has a chilling effect on some libraries, and is making it more difficult for libraries to embrace the linked open data model. The Swedish National Library had to make the difficult decision between WorldCat services and future capabilities. It was undoubtedly a hard decision, but it is admirable that the National Library did not give up what it saw as important rights for its users.

Learning not to share

"Learning to share" used to be one of the basic lessons of childhood, with parents beaming the first time their offspring spontaneously handed half of a cookie to a playmate. But some time before that same child first puts fingers to keyboard she will have to learn a new lesson: not to share online.

The Facebook phenomenon has taken that simple concept of sharing with others to an industrial level. Any page you go to on the Web today connects into your online social life, so that while reading the news or watching a video you are exhorted to share your activity with your online "friends." I say "friends" in quotes because the way that Facebook involvement grows means that many of the people seeing your posts or learning about your activities are like second and third cousins; related to your friends but at least a step removed from the inner circle you relate to. It is easy to forget that those more distant relations are there, but bit by bit the links pull in more invitations and, since we have been told that it is impolite not to share, we rarely slam the digital door on those seeking our friendship.

To increase this digital sharing, the House has passed a revision to the Video Privacy Act. You may not recall the "Bork law" of 1988. It was one of the fastest privacy laws ever passed in the U.S. legislature. Here's the description from the New York Times article:

In 1987, the Washington City Paper, a weekly newspaper, published the video rental records of Judge Robert H. Bork, who at the time was a nominee to the Supreme Court. One of the paper’s reporters had obtained the records from Potomac Video, a local rental store. Judge Bork’s choice of movies — he rented a number of classic feature films starring Cary Grant — may have seemed innocuous.

But the disclosure of Judge Bork’s cultural consumption so alarmed Congress that it quickly passed a law giving individuals the power to consent to have their records shared. The statute, nicknamed the “Bork law,” also made video services companies liable for damages if they divulged consumers’ records outside the course of ordinary business.

 At the time the passage of the law had a comic aspect to it: you could imagine the thoughts going through the heads of members of Congress when they realized that any reporter could talk into their local video store and learn what they had rented. Zingo! New law!

The revised bill, stated in the article as being backed primarily by Netflix, would allow consumers (and that's all we are, right, consumers?) to sign a blanket waiver on their video privacy in order to facilitate sharing with friends.

The Times article has various quotes giving pros and cons, online services vs. privacy advocates, all talking about how much you do or don't want your "friends" to know about you. What the article fails to state, however, is that whether you like it or not, every site where you share is a de facto friend as well. If your Facebook friends get your Netflix picks, both Facebook and Netflix (and their advertising partners) also get your video viewing information. The more you share with your friends, the more you are sharing with an invisible network of corporations - who, by the way, you cannot "unfriend" even if you want to.

This is why we need to learn not to share: it's a lie, a deceit. We aren't really sharing with our friends, our friends are being used to get us to divulge information to faceless corporations who have insinuated themselves into our lives for the sole purpose of benefiting from our consumption. They have distorted the entire idea of "friend," and turned it into a buyer's club for their benefit.

Dear friends: I'm looking forward to seeing you ... offline.