I really didn’t want to do it.  I tried to stop myself.  But unfortunately I am going to have to get into this messy discussion.

Last Tuesday, Christina Mulligan, a visiting fellow at Yale Law School’s Information Society Project, posted a piece titled “Copyright: The Elephant in the Middle of the Glee Club” and cross-posted at Balkinization. (more…)

Copyright, Intellectual Property, Internet, Media, User Generated Content

I’ve been trying to write a paper on patent law the last couple days…I know, I know, my life is thrilling.  In one of my moments of utter boredom I decided to take a peer through the wonders that YouTube has to offer.   (more…)

Internet, Media, User Generated Content

My friend Nikos and I have been going back and forth on our respective thoughts of media consolidation theory.  It all started when he shared a Wired story about the Olympics, and quoted “Does the world need 2,000 journalists here to tell them what happened?”  (more…)

Internet, Media, News Organizations

I prepared this presentation for the NYC Bar Association’s IT Law Committee on the Proposed Rule Making by the Federal Communications Commission. This presentation is dated October 27, 2009.

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FCC, Internet, Technology

A few days ago, David Post wrote about how the controversy surrounding the Google Books settlement could be heating up soon. I agree with him that as we near the fairness hearing (although it was moved back to October), things will get interesting, but I think he misses a crucial point.

Post’s post was responding to complaints by copyright holders about the unfairness of the settlement. His response focused on how amazing Google Books would be and the fundamental reasoning for having copyright and how, if it is no longer making “society better off,” it shouldn’t be upheld in this situation.

Post ignores the fact that the settlement was an agreement. The copyright holders could have taken the case to trial instead of settling, but they didn’t do that because they knew that a determination that what Google had done was fair use would have been disastrous for the future of book publishing (and at least the economic incentives for authorship). True not all copyright holders were part of the discussion, but class counsel was, and they had copyright holders in mind in reaching the agreement. It seems odd under these circumstances for commenters (read: IP lawyers) to argue that their clients aren’t going to get a fair shake, and somehow we should punish Google beyond the payments Google is making in the settlement.

At the end of the day, I agree with much of what Post says, but I think far too often we miss the forest for the trees. Google isn’t getting away for free, and copyright holders might see avenues of economic return that were impossible before the settlement was reached.

Cross Posted from The Spontaneous Huddle

Intellectual Property, Internet, Litigation

Previous live blogs from the event:  Part 1; Part 2; and Part 3.  Please remember that these are not transcriptions, and therefore should not be relied on or ascribed to those whose statements they are based on.

4:00 pm The Public Interest
Moderator: Mary Rasenberger, Counsel, Skadden, Arps, Slate, Meagher & Flom LLP
Panelists: Jeffrey Cunard, Managing Partner, Washington, D.C. office, Debevoise & Plimpton LLP;
Robert Darnton, Carl H. Pforzheimer University Professor and Director of the Harvard University Library;
James Grimmelmann, Professor, New York Law School;
Alexander Macgillivray, Associate General Counsel for Products and Intellectual Property, Google Inc.;
Carol A. Mandel, Dean, Division of Libraries, New York University

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Intellectual Property, Internet, Litigation

More live blogging after lunch, with…

2:00 am Authors and Incentives
Moderator: Professor Jane C. Ginsberg, Columbia Law School
Panelists: Tracey Armstrong, President and CEO, Copyright Clearance Center;
Michael J. Boni, partner, Boni & Zack LLC, lead counsel for the Authors Guild and the Author Sub-Class in the Google Settlement;
Jan Constantine, General Counsel & Assistant Director of the Authors Guild;
Arthur Klebanoff, President of both Scott Meredith Literary Agency and RosettaBooks, an e-book publisher;
Eugene Linden, Author, Winds of Change, The Future and Plain Sight and other books;
Victor S. Perlman, General Counsel and Managing Director, American Society of Media Photographers, Inc. (ASMP)

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Intellectual Property, Internet, Litigation

Live blogging continued…Please note this is not a transcript.

11:00 am The Future of “Books”
Moderator: June M. Besek, Executive Director, Kernochan Center, Columbia Law School
Panelists: Allan R. Adler, Vice President – Legal and Governmental Affairs, Association of American Publishers (AAP);
Richard Sarnoff, Co-Chairman, Bertelsmann, Inc. and President, Bertelsmann Digital Media Investments;
Jule Sigall, Senior Policy Counsel/Copyright and Trademark, Microsoft Corp.;
Herman Spruijt, President, International Publishers Association;
Lois F. Wasoff, Legal Consultant, former Vice President and Corporate Counsel, Houghton Mifflin Company

(more…)

Intellectual Property, Internet, Litigation

Today, Columbia Law School‘s Kernochan Center for Law, Media and the Arts is holding a symposium on the Google Books settlement.  Keep checking in as I blog about the event.

An introduction; Marybeth Peters, U.S. Register of Copyrights; and Professor Randal C. Picker, Paul H. and Theo Leffmann Professor of Commercial Law, University of Chicago Law School; after the break.

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Intellectual Property, Internet, Litigation

One of our commenters provided some meaningful feedback to my post from last week on the Google Books settlement. For round two of my Google Books discussion, I would like to address some of those arguments. The poster (Law Student) made two claims: members of the Google Books settlement class should not be considered legally knowledgeable; and the notice provided through the settlement is insufficient to inform members of the class.

Photo by MargauxV (licensed under CC)

Those that are members of the Google Books settlement are not unknowledgeable about issues of copyright and licensing. The settlement specifically only incorporates copyright holders of books that have been registered with the United States Copyright Office. Authors that do not know enough about copyright to register are not considered members of the settlement class and therefore retain their rights against Google. Those that have registered fall into one of two categories: either they are book publishers that share or own copyright in the books, or they are individual authors. To argue that book publishers, who work with copyright issues on a daily basis, are not aware of what rights are involved in the settlement would be an odd claim, so I must assume that Student’s concern was primarily directed at book authors that had sufficient knowledge of copyright to register their books. For those authors, Google and the class action plaintiffs have not only created a website from which authors can download the settlement agreement, but they have also summarized that agreement in question and answer style so that those that are not legally trained may understand what is happening with their rights. For those that still have questions, they can contact the settlement administrator by mail or e-mail. The administrator will answer any questions, and from personal experience, they respond within 48 hours.

Given all of these avenues of information, I find it unconvincing that these somewhat informed authors would not be able to get the information necessary to understand the settlement. The remaining question then is whether the class members will be provided adequate notice. Again, the definition of the settlement class helps assist the class members. By defining the class as only those that have registered with the Copyright Office, the class administrator automatically started out with access to fairly accurate contact information for the rights holders. One might argue that since registering an author might have moved, but most authors that would care enough about their rights to be concerned about the settlement would likely update their copyright registrations with that information. In addition, there is a settlement website, and there has been quite a bit of media exposure concerning the entire case. Finally, Google has paid for an international advertising campaign by which hopefully any author who falls through the cracks will be informed. Student is right that this is constructive notice, but what a construction! Even in a “regular” lawsuit a party can be given notice by constructive notice, such as publication in newspapers, and I am sure that those notices are not nearly as clear or widely read as the ones in this class action.

Student also raised concerns about “other people getting to litigate a person’s rights absent proof that that person was sufficient notified of her involvement.” I have already pointed out that notice of the settlement will more than likely reach all those affected, but even if it didn’t those involved in the settlement negotiations came as close to representing those affected as one could muster, including representatives from both the Author’s Guild and the Association of American Publishers.

In my opinion, anyone who has enough copyright knowledge to register their work with the Copyright Office and who has notice that a settlement regarding their rights has been reached, should be expected to go online and choose to opt-out if that is what they want to do. I apologize if that opinion appears to be “bashing” these authors, but honestly one can not imagine a more tailored and informed class.

Cross Posted from The Spontaneous Huddle

Intellectual Property, Internet, Litigation