As a reminder, fair use is a copyright doctrine by which someone who has infringed a copyright can avoid liability.  The doctrine began as common law, but was codified by Congress in 17 U.S.C. § 107.  As codified, the doctrine consists of four factors: (1) purpose and character of the use, (2) nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use upon the potential market for or the value of the copyrighted work.  If a court (or jury) finds that the factors balance in favor of the user of the copyrighted work, the use is not considered an infringement.

There are certain purposes that are enumerated as weighing in favor of a finding of fair use, including criticism and comment, and other purposes that courts have determined serve similar social purposes, such as parody.  Here, the video could in fact be a parody of Cyrus’s song.  The lyrics of the song concern a girl who was nervous about coming to Hollywood until she heard a song by the artist Jay-Z, at which point she put her hands up, nodded her head like yeah, moved her hips like yeah, and felt better.  Later she hears a song by Brittney Spears and her own song, and repeats the process.  Similarly, the men in the video appear to be letting their butterflies fly away as they listen to the Cyrus song.  In addition, the parody is titled “Party in the FIP” (FIP stand for Fire Island Pines).  As Fire Island is known for being a major destination for gay men, the video may also be making the comment that these men were nervous about living as gay men in the USA, but then, hearing the song, they knew they would be okay.

There is no question that Cyrus’s song is creative within the meaning of the fair use doctrine and was published; therefore the nature of the work weighs in favor of the copyright holder.

The video uses the entire song, but as it is likely a parody, that is has taken the heart of Cyrus’s work should not weigh against it.  The essence of parody requires the summoning up of the work that is the subject of the parody.

Finally, it is unlikely that those who would purchase Cyrus’s song or watch an official music video (should one be produced) would be swayed away by the production of this work.  On the other hand, if one only wanted to hear the music and ignored the video, there would be no difference between listening to the parody and listening to the original song.  However, as this is a YouTube video and not downloadable (without special software), it can only be played in certain circumstances.  Whereas the legitimate version of the song is easily transferred to other media.

At the end of the day, I would anticipate the use of the song to be considered a fair use.  It doesn’t much matter though, because Disney seems to be okay with the use.  Furthermore, Ms. Cyrus was “OBSESSED” with it.

Most importantly, Obama stressed the importance of thankless work that often goes underappreciated. A label such as an honorary degree is an example of something that should not be valued as much as the spirit and drive of a person truly making an effort to improve our world.

Watch his speech here. It was fantastic.

_

Today, the European Union announced that it would be fining Intel 1.06 billion euros ($1.44 billion) for abusing its closest rival Advanced Micro Devices. This is a case that has been in the making for a while (AMD actually first filed its U.S. complaint against Intel in June of 2005). The N.Y. Times had this to say about Intel’s activity:

The European Union’s competition commissioner, Neelie Kroes, said the penalty against Intel…was justified because the company had skewed competition and denied consumers a choice for chips.

Ms. Kroes said Intel had “used illegal anticompetitive practices to exclude its only competitor and reduce consumers’ choice — and the whole story is about consumers.” She said Intel’s practices had “undermined innovation.”

In response to the announcement, Braden Cox, a contributor at The Technology Liberation Front (anyone seen the Life of Brian?) and employee of the Association for Competitive Technology (a lobbying and publicity organization funded by Microsoft—now what is Microsoft famous for in Antitrust law?) had this to say:

The European Commission is a loose cannon when it comes to antitrust and competition law. It’s record $1.45 billion fine is emblematic of what the Commission just doesn’t get: there’s a difference, a difference that matters, between consumer and competitor harm….

No, the whole story is not about consumers, Ms. Kroes. It’s clear that the only harm that Intel has carried out is on it’s main rival AMD–and that’s called competition….

Here’s the main point–competition shouldn’t be illegal. But according to EU law, companies with a dominant position in the market have a legal duty to not eliminate competition, while in the U.S. only monopoly power imparts this duty. U.S. culture, reflected (partially) in antitrust law, holds that the competitive process of driving other companies out of business makes an economy efficient and innovative.

Mr. Cox is correct that U.S. antitrust law in this area requires a company to have the power to control prices or exclude competition from the market (i.e. monopoly power), but it also requires the willful acquisition or maintenance of that monopoly. In other words, in America we allow natural monopolies created by superior skill, foresight, or industry. That, however, is not what AMD accused Intel of, nor what the European Union found that it had done. I’m not going to get into the arguments here, but it is sufficient to reiterate that the EU found that Intel used anticompetitive practices to exclude a rival from the market.

Mr. Cox attempts to hide behind his colleague Mark Blafkin’s (the Director of Communications for ACT, and incidentally not a lawyer) arguments that Intel’s actions didn’t actually harm consumers because “innovation is thriving,” “computing power continues to increase,” “prices have fallen,” and “when AMD innovates, it gains market share.” However, none of those things matter. I’ve tried for years to gain the ability to tell the future, but it’s never happened. Similarly, I’d love to know what would happen if I took another path when the “two roads diverged in a yellow wood.” That hasn’t happened either. If Intel hadn’t engaged in anticompetitive tactics, who knows what innovations might have been developed or how low costs may have fallen. True, consumers are better off than they were five years ago, but could they have been better off? It is these questions that lead us not to focus on consumer welfare directly, but rather, as the EU did, to focus on the anticompetitive acts and conduct that we believe lead to market harm.

In case you haven’t heard, Obama’s giving the commencement speech at ASU TODAY… in the 101 degree heat… and he’s NOT getting an honorary degree.

What’s up with that? There was a great vignette on the Daily Show about it. It also does a great job making fun of our undergrads. I agree that not every commencement speaker should be given a degree, but ASU has been so patchy about this in the past that it only makes us look ungrateful. Well, I suppose that reflects ASU’s high level of selectivity in their admission process….oh wait. (Except for our graduate programs, which are highly acclaimed, despite the pathetic undergraduate record)

p.s. I have a ticket to commencement! I’ll be sure to post photos. They’ll probably be of the crowd of literally tens of thousands of people filling the stadium. I hope I don’t melt.

Back in February, I mentioned that before Russia physically invaded Georgia, they launched Internet-based attacks against the Georgian infrastructure. Well, it seems that I wasn’t the only one paying attention. Various United States military organizations—including the Navy, Air Force, Coast Guard, Merchant Marines, the Naval Postgraduate Academy, the Air Force Institute of Technology, and the National Security Agency—are training their members in cyber warfare.

After the jump, see more of the New York Times’ coverage.

The New York Times had this to say:

The cyberwar games at West Point are just one example of a heightened awareness across the military that it must treat the threat of a computer attack as seriously as it does an attack carried out by a bomber or combat brigade. There is hardly an American military unit or headquarters that has not been ordered to analyze the risk of cyberattacks to its mission — and to train to counter them. If the hackers were to succeed, they could change information on the network and cripple Internet communications.

In the desert outside Las Vegas, in a series of inconspicuous trailers, some of the most highly motivated hackers in the United States spend their days and nights probing the military’s vast computer networks for weaknesses to exploit.

These hackers — many of whom got their start as teenagers devoted to computer screens in their basements — have access to the latest in attack software. Some of it was developed by cryptologists at the N.S.A., the nation’s largest intelligence agency, where most of the government’s talent for breaking and making computer codes resides.

The hackers have an official name — the 57th Information Aggressor Squadron — and a real home, Nellis Air Force Base.

Britannia, rule the waves: Britons never will be slaves.

I don’t know what it is about British television, but I adore it. Perhaps it’s that the news is balanced and takes a world view. Perhaps it’s that the entertainment programs are less about being sensationalist and more about entertaining people. Or perhaps it’s just that the shows are smarter. Like they say in “Shakespeare in Love,” “I don’t know; it’s a mystery.” (Of course, they were talking about theatre).

I watch BBC-America quite frequently, but this weekend, for some reason, I watched it a lot. Obviously, one of the best shows that the BBC puts on is “BBC World News America,” which is a nightly news program from the BBC targeting the United States. Unlike its American counterparts, “BBC WNA” truly has a global perspective and gives balanced news. Also, unlike a lot of nightly news programs (save perhaps Brian Williams’ NBC newscast), it’s really not about sensationalizing the news. As someone who reads a lot, nothing is more frustrating than to get home, turn on the news, and have to watch another dumb story about which flavor-of-the-week ridiculous person did what. At least not from the news. If I want that kind of fair, I’d rather turn to John Stewart or Chelsea Handler, who can handle those stories properly (and be intentionally funny while doing it).

Another of my current favorites is “Any Dream Will Do,” which actually aired on the BBC in 2007. It’s a show that reminds me a lot of “So You Think You Can Dance,” another show I adore. “Any Dream Will Do” is Andrew Lloyd Weber’s search for the next Joseph for his show “Joseph and the Amazing Technicolor Dreamcoat.” It’s structured a lot like “American Idol,” but unlike “Idol,” the panel are current stars (John Barrowman for one—I adore him!—and Denise van Outen for another) and the young men on the show are so much more talented than anyone “Idol” could pick up.

Side Note: The other show that I’ve just started watching (not on BBC-America) is the IFC Media Project, which is taking a hard look at the way news is collected and distributed. Very interesting.

Anyway, one wonders if the Brits are better (at least in my opinion) than the Americans at television, because they are not pressured to be the leader of the entertainment market, or if it’s something innate to the British experience. Anyone have any thoughts?  I’d like to note that I wrote this post while muting the finale of the Celebrity Apprentice, which is a ridiculous show (and by show, I mean two hour commercial).

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.

What is wrong with CNN? Everyone is trying to calm the American public’s worries about this Swine Flu Epidemic, and what does CNN do? They throw gas on the fire. Today they announced the “first U.S. death” associated with the outbreak. However, they don’t know anything about the child other than his or her age (they didn’t even know the gender) and that s/he came from Mexico. Well let me ask you something, CNN. If the child came from Mexico and was being treated in the United States, is that really a U.S. death? The fact that we haven’t had any deaths is not really because America is super rad and the flu knows to stay on the other side of the border. We have medicine here, and a higher standard of living. Americans are more likely to withstand a flu epidemic than Mexico just generally. The fact that this was a young child made it even less likely that even getting proper medical care it was going to survive.

I grieve for this child’s family and all the families who have been affected by this major health crisis, but making people paranoid and ratcheting up the panic level is not going to help anyone. Obviously, this is what CNN and any other news organization that cares about advertising dollars does, but that is a discussion for another time. For the moment, calm the heck down.

Drawing's more fun than Xanax.

Like most people, I’ve always had at least one regular hobby. It didn’t really matter what it was, but it usually ended up being some creative outlet, like ice skating, drawing, singing, or dancing. I would spend my free time enjoying that hobby whenever I wasn’t doing other, more important things.

Since beginning graduate school, though, I haven’t felt like I had the luxury to continue my hobbies. For most grad students, there’s an end goal in sight in all your work. Everything you’re doing is propelling you closer and closer to being the successful professional you’ve dreamed of. Why would we want to waste time drawing a picture or going to take a dance class?

As I’ve discovered, I can’t deal with the stress of my program without my hobbies. For a while, I thought I was just being weak, and that if I worked harder, longer days I would get used to it. While I’m sure (I know, in fact) that some people have unlimited energy and work ethic, I personally can’t keep going at such an intense pace. At least not without breaks to enjoy myself in other, less intellectual ways.

We often forget about the health benefits of the arts, although art therapy is a widely-used strategy in mental health settings. At a 2003 seminar of the Institute for Public Policy Research, Mike White discussed the importance of the arts. He noted some important related findings:

An arts in health questionnaire survey carried out by the Health Education Authority
in 1998 produced 90 responses from arts organisations, an ‘overwhelming’ number of
which identified improvement of mental health. There was observational evidence of
participants achieving stress reduction (53% of projects), therapeutic benefit (57%),
improved sociability (59%), and skills development (70%).

~From White, Mike (2003). ARTS IN MENTAL HEALTH FOR SOCIAL INCLUSION– A Discussion Paper. Mental Health and the Arts IPPR Seminar, London.

After some deep thought about my own mental health, I have realized that I won’t become an effective Psychologist without taking care of myself first. While at first it seemed trivial, I bought a sketchbook and some colored pencils, and started to spend time in the evenings drawing. I’m going to yoga or the gym a couple times a week too. Nothing too crazy, but it’s making all the difference. In the end, it makes my hours devoted to work more efficient and reminds me that there’s more to life than schoolwork.

For most students and young professionals with so many responsibilities weighing us down, it’s difficult to remember to prioritize our own well-being, but vital to our success in life. Ultimately, we can either be exhausted and too stressed to function effectively in our careers, or instead sacrifice a few hours a week to partake in some creative outlet. The latter option will make us physically and mentally healthier and more content overall.

If you, like me, are getting sucked into the American workaholic frenzy, I suggest you give some hobbies a try. They might improve more than just your drawing skills.

Yours truly has worked her fair share of side gigs–waitress, office assistant, PR rep, lab study participant, etc.–for the sake of some extra income. And I’m planning to dive into the exciting world of food service again, very soon.

But apparently–and I’m totally stoked about this–there’s a universe out there where professional writers don’t have to do any jobs but writing. They’ve never had to lift a finger in their lives to do anything more strenuous than clack away on their laptops.

And if they do, well–well gosh, it’s just quaint, isn’t it?

Take it from this New York Times piece by Caitlin Kelly, a freelance writer who decided to pick up a part-time job (part-time as in once a freakin’ week) working as a salesperson at a clothing boutique–for funsies!

Sometimes I feel like Alice slipping through the looking glass, toggling between worlds. In one world, I interview C.E.O.’s, write articles for national publications and promote my nonfiction book. In the other, I clock in, sweep floors, endlessly fold sweaters and sort rows of jackets into size order. . .

The contrasts between my former full-time job and my current part-time one have been striking. I slip from a life of shared intellectual references and friends with Ivy graduate degrees into a land of workers who are often invisible and deemed low-status.

Congratulations, Caitlin. You just discovered that there are other people in the universe! People who aren’t journalists. And have crazy things like diversity and no college degrees. OMG! And believe you me, her buds were seriously worried for her:

When friends, family members and colleagues learned of my new job, some were puzzled, some supportive. Many wondered: Wouldn’t I be bored? Could I handle it?

And OMG you guyzz, it’s like really really hard:

The hardest part? It’s not scraping gum and food off the floor or standing for five straight hours. It’s not refolding clothing so many times the skin on my hands cracks from dehydration.

It’s some customers’ stunning sense of entitlement, even contempt, for those — i.e., us — they feel certain are their inferiors. Expecting good service is fair. Treating hourly wage workers like personal servants is not. When you wear a plastic name badge, few bother to read it.

We, too, are intelligent and proud of our skills; many of us are college educated. Some of us travel often and widely, speaking foreign languages fluently.

And those non-college-educated types, of course, have neither intelligence or pride. But don’t worry. At least some of the customers are her people, so they can speak together in her native tongue of privilegedwhitechickese:

I love sharing my expertise and experiences. When customers tell me they’re going to Fiji, Kenya, the Grand Canyon or Cuzco, Peru, I can offer first-hand advice from my own trips there. I know what they need to stay warm, dry and comfortable on the ski slope, boat deck, hiking or bike trail.

I’m sorry, but since when in history have writers never had experience outside of their journalistic/intellectual enclaves? Did these people get a free ride through college and then transition seamlessly into high-paying writing jobs? Did they never in their life have to deal with a sudden layoff?

I would chalk up Kelly’s smingingly condescending op-ed as an isolated incident were it not for another article that appeared in the Boston Globe around the same time. In it, Globe staffer Geoff Edgers works as a UPS deliveryman for one day, in what he calls a “labor experiment.” And as with Kelly’s experience, it was super hard:

Picking up part-time work can be psychologically jarring. I’ve spent the last 16 years doing one thing professionally – writing. That may seem complicated to some, cushy to others. But it’s what I know.

I don’t know how to be a UPS helper. I realized that when Bailey handed me the scanning device I need to carry around for each delivery. It charts my progress, collects signatures, and lets my managers back in Watertown know I’m actually working.

The newness of everything created a strange feeling of insecurity. I wondered how quickly I’d get up to speed or whether I’d slow Bailey down.

After applying moisturizer to his delicate hands, Edgers dived back into the fray, working behind the counter at a local burger joint. And these are where the real bourgeois barbs begin to backhandedly fly (wow I did not mean to use all that alliteration just now):

Working the register also felt strange. I was a cashier at Stop & Shop as a teenager, but I was too young to grasp or care about the master-servant mentality of customer service. Here, I felt uncomfortable. I knew what these Harvard kids were thinking: I’m studying searches and seizures with Lawrence Tribe and this dude is pressing a button to add cheese to my burger.

Even still, after a couple hours I started to feel like part of the b. good family. Mike, another worker, shook my hand, told me I was doing OK, and even freed me for lunch, when I would never have asked. Nobody questioned why I was working there or where I’d come from. Apparently, in this economy, they understood why a seemingly fast-thinking, clean-cut adult might want to sign on for a $9 an hour burger job. Probably for the same reason they were there: the paycheck.

Not like those slow-thinking, unwashed ruffians that generally sink so low. Poor guy, he’s all scared his Harvard buddies won’t recognize him as part of their club. Aw, buddy. You got it rough.

Don’t get me wrong, I think the whole second-job upswing is highly coverage-worthy, but how about getting someone to write it up who actually is struggling, and who actually has two jobs? Not Kelly, who works retail a grand total of once a week and approaches her coworkers like archeological specimens, or Edgers, who’s playing blue-collar dressup.

I have no doubt in my mind that in the whole wide world of writers, these two are in the minority. To call them out of touch is an understatement. No wonder the ol’ Grey Lady (I mean print journalism, not the Ravenclaw ghost) is gasping for breath.

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

Rasenberger: Introduces the panel.  We are now going to discuss the public interest.  The public was not at the table, but the settlement effects all people who care about books.  As Peters said this morning, there are a lot of public interest questions.  How this impacts are culture and learning, and our civilization.  Quote: “Knowledge will forever govern ignorance and a people who mean to be thier own governoursmust arm themselves with the power which knolwedge gives.” — James Madison, August 4, 1822.  From the library of Congress.  Does the bookstore belong in a public institution or a private institution.  Because we are talking about a public good here.  The questions we are talking about revolve around what the public’s goal is.

Is this good for America or not?  Utopia or distopia?  Tell us how the public may benefit?
Macgillivray: It’s a bit odd to ask what is good for America given that I am from a private company, and Candian and American, so maybe I shouldn’t comment on what is good for America.  …  Why Google thinks this is good Google?  We think that being able to find books makes search better, and making search better is important to Google.  Being able to read books is even better.  We make a lot of our revenue off of advertising.  It turns out that that dovetails nicely with the quote behind me.  There are 20,000,000 at institutions, but there are probably more like 100,000,000 who would find this useful.  That’s a lot of public.  Some of them are at schools like our panelists here.  Those that have ready access to the books is less than 1% of faculty and staff at all universities.  From their perpsectives, those that can stand on the shoulders of 10,000,000 giants can see farther.  We want to make it easier for any researcher to be able to get access to these materials.  I would like to point out Paul Cran, representing the University of Michigan, they are getting rid of their competitive advantage by allowing even a small library in California to use their books.  Imagine a translation program allowing people who speak arabic to understand someone who speaks English.  There are more benefits: preservation, those who want to use them using the Registry, and also disabled people.  It surprised me how large a percentage of the public they are, but these readers are now able to stay current with all other people… fundamental human right.

From your viewpoint, can you talk about the benefits and issues with the settlement?
Darnton: I do speak as one of the 100,000,0o0 researchers and one of the readers.  That is one of the reasons I feel it is a utopia.  We can have at our fingertips the biggest library ever.  It also has to do with democracy, and Google at least potentially sounds like democracy.  However, we must talk about monopoly…[GOOD QUOTE THAT I MISSED]…not all monopolies are bad, but its not the existance but the abuse.  Google isn’t the only digitizing and scanning operation, but they are digitizing special collections and at a different scale.  This is going to be the new library at Alexandria.  We have a problem with the tendency of monopolies to use monopoly pricing.  To problems with the settlement: one, the fact that its a class action suit, so no competitor may compete unless they pick author by author.  Second, the most favored nation clause, which means no one can get better terms than Google.  This means Google can ratched up profits as we get hooked on it, because there is no authority to enforce fair pricing.  This happened to libraries with periodicals.  We are concerned Google will be cocaine pricing times 100.  Library budgets have already been crushed.  What I am saying is please Google find a mechanism to insure that your prices remain at a rate we can pay.

How do you see the settlement effecting libraries?
Mandel: When I look at the settlement and potential impacts, and after today your head starts flying around even more.  I think about it as incremental, transformative, and worrysome.  There is a lot of talk about libraries being empty and unneaded, but we need to put this in context of the transition libraries are already making.  It has happened slowly and smoothly enough that people seem to take it for granted.  We already spent 3/5ths of our budget on electronic journals.  You don’t realize the extent that libraries have made that transition already.  Everything — not everything — from the 18th century is available electronically.  We have negotiated license terms and the privacy of our readers, and we don’t love them all, and we have worried about the preservation of those files.  We have dealt with renegotiating our libraries: shrunk staff, changed methods (e.g. IMing, etc.), and this is another incremental product.  And so this product is going to make us go further on the path.  It is going to push us even farther (push more books into storage) and change our operations.  How transformative will this be?  I think we will have to see it over time.  The transformative depends on what happens next: e.g. where does the imprint gone, and the out-of-print joins the in-print.  One thing I am disapointed in is that print on demand was not part of the core needed library services, because we won’t understand our print copies…

Public interest in copyright.  How does it affect copyright incentives?
Cunard: I think we fundamentally agree that this is in the public interest.  I don’t need to go on about how we believe it is harmonious with the copyright laws.  The benefits of the settlement are manifest.  They benefit authors and publishers.  There are enormous benefits to readers.  There are benefits to libraries.  To the visually handicapped.  To reading online.  It is nice to know that there are books there.  It is nice that people will have access to not just Wikipedia but validated information from the ages.  Also, people can annotate books.  That is not a benefit that exists today, and that sharing of information is obviously a public benefit.  While at the same time giving writers and publishers unprecedented control.  Now let me specifically address the question you asked.  We think the settlement is completely consistent with copyright law.  We know that the author’s and publisher’s permission is required.  In authorizing Google to make copies, I think represents an agreement in this core principal.  Author publisher procedures reflect a realization that both have an important interest in these books.  However, in general, it represents an accord that regardless of what it says, there is a shared interest in books.  Also, it represents the bargain about copyright in the constitution.

In your analysis on the laboratory blog, you have said that we are better off with the settlement but articulated some concerns.  Can you explain?
Grimmelmann: I do think it is good and bad for the jews.  It is my role to be a nay sayer.  I think the orphan work issue is central to the issues of the settlement.  It’s better to say they are zombies not orphans.  They are a shambling army under the sole cfontrol of google.  Having them show up is a good thing, but it gives consintrated power to Google.  In a lawsuit about search, and which didn’t need to be a class action, has been changed into a device to create dominate players in the book world.  Precisely because Google is making use of the books not publicly available by default.  We have heard about harm to libraries, and the singular articulated source by which information flows to the public.  Linked concerns: consintration of market power that can choak off other libraries, although available it may not be affordable, the power to exclude for editorial reasons and to rank in search results.  Concerns that are less severe in a competitive market.  Reader privacy, especially given that the only concern about privacy is the author’s communications, and requires reporting.  De facto effects on copyright law: defacto change in fair use rights since there is now a change in the market for books.  Change in rights under 108, and effect on 109, where the dominant provider sells subscriptions.  Public goods that are valuable to society, but that hardly need to be exclusive to provide incentives.

Describe long term issues that libraries have with the settlement and the registry.
Mandel: I think I want to talk about libraries perspective and changes to the settlement.  Before this morning I was most concerned about the power of the registry, now I can’t emphasize enough the power of orphan works legislation to making this a long term agreement.  I think looking at this that we are looking at going forward negotiating licensing agreements with this product, and how much will we be able to negotiate?  That’s where we can think about pricing and licensing.  If the price is too high it will squeeze out our ability to buy other publishers products.  So what might benefit the agreement and the future in the environment the libraries did participate.  We have discussed ways it has made a difference: coupling, terminals in public libraries.  The ability to preserve digital files.  What happens on going?  When the only parties are the Registry and Google?  Where do you get that balance?  I think we need balance that is not built in long term.

Can you describe the most important recommendations?
Grimmelmann: 3 step plan.  Consumer protection and library side protections.  Privacy and terms and conditions.  In some ways the settlement has good terms on these.  In some ways libraries will be able to negotiate these for access.  Others might be appropriate for FCC guidance.  Accountability and transparency.  I would say here that Jeff’s clients could put those risks to bed today by saying more publicly about the oversight of the Registry.  I think we need to open up discussion at the licensing level.  If we think Google is getting to good a deal and it shouldn’t be extended to others, Google shouldn’t be getting.  If it is a good deal it should be available to all.

Assuming objections are filed suggesting changes or tweaks, you have suggested that the settlement is a take it or leave it matter.  Is that true?
Macgillivray: The question is really about what the court can do.  My understanding is that the court’s decision is to approve or not approve the settlement, and if it doesn’t approve the settlement it will send the parties back to the drawing board, and there is no guarantee the same deal would happen in the future.  We talked about us, but I want to talk about you.  Google has been fighting for orphan works legislation for several years, and we would like to see you there.  We think orphan works legislation would be a very good use of our time.  Peters said it was the public or Google, why not both?  If you have a scanner, start scanning.  There is plenty of room for others to do work.

The order does say the parties can agree to changes.  If that isn’t a possibility, how can you get people in the room comfortable that we will know about the landscape down the road?  For example, the split between Google and the Registry.  What if it isn’t the right balance?
Cunard:  Answering the last question first.  The settlement agreement provides for continuing jurisdiction and oversight of the court.  There shouldn’t be any discussion as a civil procedure matter or otherwise.  There is plenty of room for negotiation already, e.g. revenue models.  Also, discount programs and other things could be agreed upon.  Others have brought up the institutional subscriptions being set at monopoly levels.  Also, there is a mechanism for reviewing the subscription prices: too high, too low, not enough categories, etc.  So I think we built a number of protections into the agreement, but the settlement agreement has a clause with regard to amendment.  The parties to the agreement may amend it as long as they do not impair the benefits to the class.

In your article, you spoke about how we missed a great opportunity for the Library of Congress or other libraries to create the 20th century library of Alexandria.  Would that still work?  Could we go to Congress now?
Darnton: You know I hate to say this, but I don’t think it is possible.  We have the settlement, and if it is not changed, this is what the future of informtion will look like.  I don’t think the settlement has adequate provisions for how to change fees.  It talks about comperable services or products, but there aren’t any, and we need a public authority to protect us from price gauging.  We have hardly talked about public libraries, and that, to me, is the weakest provisions in the statute.  That could create chaos in the NY public library even though it may be okay in small towns.  Also censorship: google can remove 15%.  Also, the library copy doesn’t allow us to read.  In general, I find the public good under represented.

Interests not at the table in negotiating the settlement?
Grimmelmann: Might as well ask who was not at the table when the …chartmakers.  This settlement reflects concern for library interests, but not in the form that libraries would want.  Readers are the great lacuna of this agreement.  Privacy access concerns.  Also, the access to public domain concerns.  Classificiation attempt to make public domain works into in copyright, even in bad faith might not be resisted.  Also the zombies.  There is a subclass here that has a well known sense that is hard to find, and exactly for that reason and for that reason they are difficult to represent by anyone present today.  Revenue shifting clause also concerns me.

How will it effect library’s digital preservation efforts?
Mandel: There is a great deal of confusion about how libraries will change and what this means.  I think Google has been quite open that the scans are not presevation quality, and may not be print on demand quality.  But you take what you can.  So there is nothing in this project that preserves the print book.  Libraries will have to be careful how many we throw away as opposed to store.  The agreement, another place where you see the concern, is that participating libraries are able to take Library Digital Copies (LDC) and preserve them.  That is incredibly important for all the reasons in the agreement: data mine, and non-consumptive.  And the ability to see into the future.  Google is not an institution.  The content of libraries have a much longer horizon.  It is not made easy, and it is going to take libraries to help them and support them.  I think long term, in the agreement, there needs to be more perspective of what happens after Google.  What happens in the long run?

You have expressed concern about the literary heritage in the hands of one entity?
Darnton: If there are no other players in the field, Google can charge whatever price it wants.  I am also concerned about public libraries and the role of public libraries.  The potential for abuse of power is there.  I believe we can believe in the moto of do no evil.  Do you remember the slogan “What is good for General Motors is good for the United States”?  I believe that readers need to be protected from this service being priced out of its  range.  If Google and the Registry can price it out of its range.  Thus far the settlement only invovles authors and publishers who only care about money.  All day we have heard about money.  What is my cut of my pie?  Libraries are tring to get books for readers.

Concern in the coverage about Google’s ability to take material out of the repository for business reasons.
Darnton: Phrase about Google’s right to remove works for non-editorial reasons, which is what I read as censorship.  I do not think the database should be subjected to those who want to remove the material.  The database can be hollowed out in other ways.  And I think it is crucial that the data resource centers be given an adequate database on which to do their research.  I think google has been very generous in supporting this, but we want to make this something that researchers can make use of.

Mandel: We heard a lot about materials that will be opted out because their value will be discovered and then they will be moved, so we need to remember that the relyability of that system will not be consistent.  Access should be more seamless.  Also, the potential role of Google as censor for whatever reason is of concern.  Also, knowing what is removed.  What does editor mean in the room of Google?  This edition vs. that edition, what’s out and what’s in?

Can you respond to these concerns and what you think about non-editorial reasons?
Macgillivray: On the editorial issue and claims of censorship.  It is funny how those that talk about censorship is choice, but others is censorship.  Librarians can remove things from their libraries, but heaven forbid Google removes something.  Which we think about as our free speech.  If we want to remove the book, we have to make it public and give it to the libraries and the Registry to try to undo that decision.  We did that because as a company we are against censorship.  I am only given time to color around the edges, but all other claims have similar flaws.  Let me read you the pricing objectives, which I’m not sure that anything else has ever had: [READS THEM, INCLUDING ACCESS OF THE BOOKS TO THE PUBLIC AND LIBRARIES - 4.1ai]

Most favored nations clause.  Can you describe its purpose and why the Registry shouldn’t be able to give more favorable terms to another entity if it makes business sense.  Can you make sense any other substantially similar entity?
Macgillivray: It encourages us to be the first to do this deal.  What wasn’t mentioned was that it only applies to authorizations within 10 years of the effective date, and including rightsholders other than the registered ones.  So this only matters if it is 10 years from the effective date, and we must have already solved the orphan works problem.

What’s good for Google is good for the U.S.  Google exception in the caselaw.  There is a sense we don’t want to stop Google.  Would the plaintiffs have agreed to this had it been someone else?  Would they still if others wanted similar rights?  Or would they have to risk a lawsuit?
Cunard: I start from the proposition and as Mike says you are faced with the case in front of you.  You have to deal with the case in front of you.  Would you agree to the same deal?  Well, what is the deal?  We were dealing with Google, and indirectly with the libraries, but no one else is similarly situated.  That said, the Registry is authorized to license to other people.  Everyone agrees that the Registry should be able to license to third parties.  There is ablance in teh agreement that would impower the Registry to give rights to others… It is hard in the abstract to say that we would prevent competition.  In fact, the agreement encourages that kind of competition.

Compulsory license legislation that mirrors the agreement but is limited to non-commercial works?
Cunard: There are a number of provisions that go beyond compulsory licensing.  It is hard to discuss in the abstract.  There is nothing to stop the Registry from acting as an administor for such a scheme.

Macgillvray: Sounds good.

Grimmelmann: To the extent that we can make the settlement bigger and more comprehensive we can cope with potentail sources of conflict.

Darnton: Jeff focused on the practical problem, but now it has mushroomed to a public problem.  Jeff says Congress in its wisdom, but Peters noted this morning she hasn’t heard a peep.

Mandel: I don’t think I need to add to what has been said.  From the perspective of libraries, the settlement is of enormous value, but we need to fit it into a system that will meet readers’ needs.  We need to find ways to help publishers to encourage their publishing in a prospective mode…shared print issues.  Potentially transformative ways that people share and enjoy books.  There are a lot of pressure points and calibration issues.

Macgillivray: We do have a deal, but we don’t agree about everything.  The agreement does have use requiring permission.  I think it would be a surprise if I agreed with that.  106 does not mention use.

Grimmelmann: Alex said that Google has to make it public.  The concern that I had was that the clause only says tell the Registry.  If we can assume that means public, then I can check it off my list.

Macgillivray: We give stuff to chilling effects.  Only search engine that does that.  Same thing here.

Darnton: What is at stake here is the spread of knowledge.  It involves people who are not privileged and want access to the database.  We need to find some way to have the magic of Google; it’s power, technology, and skills harnassed for the benefits of the citizenry.  What worries me is that the settlement is framed in such a way that it might be difficult.

Q & A

Rudick: I am retired, which means I can’t be fired but I can insult my friends.  I used to be counsel to a publishing company.  I start from a positive premise; the agreement makes flowers bloom in the desert.  However, I have heard four things that would alleviate concerns: (1) “take it or leave it” – paragraph 12 contains a provision from which the judge retains the ability to amend the agremeent with or without the consent of all parties, so why not alleviate concerns by tweeking some things?  (2) orphan works; (3) …; and (4) on demand printing, but Niko said that that was just what he was doing.  Why not do all four of these things?

Cunard: Paragraph 12 requires the parties to consent, and I don’t think that is inconsistent to what was said.  Unilateral modification is not appropriate.

McMillan: Professor Darnton your objection seems to be that this seems like such a good thing and then they would not be able to afford it.  Are you saying the world would be better off if the judge denied it, or legislation?

Darnton: I know there is a paradox built into what I was saying.  It is so fabulous that it worries me.  It could be priced out of the range of institutional subscribers.  I would welcome legislation, and I would welcome a public authority that would monitor pricing and prevent excessive pricing, but I don’t think copyright owners don’t deserve returns on their copyrights.  I think this is a moment that the parties could get together to modify the agreement.

Associated Press: Research corpus.  Where people can do research on the database.  What are the terms for that?  Full rights for inventions?

Macgillivray: Mostly up to the libraries who will be running those sites.  Google does not hold patent rights over those sites.

Person: disposition of digital files should Google choose not to work with the digital files in the future?

Macgilliway: yes, if Google stops using the files.  There is a position for transitioning them.

Cornell University Library: Authors for works where the author doesn’t come forward are going into the registry to be shared with those who don’t share those rights.  Appropriate?

Cunard: There is a detailed plan of allocation on unclaimed funds.  Unclaimed funds from subscription and subscription revenue.  Rightsholders get more money for unclaimed funds for non-subscription revenue, everything else goes to charity.  Subscription funds go to rightsholders.  However, we don’t know what the amounts will be.

Thomson Reuters: Google’s plans for works outside the scope of the settlement?  Keep scanning and set up another lawsuit?

Macgilliway: Still planning.  Also, the partnership plan is important for that.

Teacher’s College Press: Partnership program’s relationship

Cunard: Expectation that the partnership program runs in parallel with the settlement program, and Google has been very accomidating with that.  However, administering that program is Google’s right.

University of Michigan: The fact that there is going to be a copy of most of these books is a very important piece of the public interest.  Everybody thinks orphan works legislation would be important.  Will everyone think about putting that it?

Macgilliway: We are willing to do that.

Cunard: We have been working on legislation for years now.

Grimmelmann: As much as I like orphan works legislation, I don’t think it should be done through a settlement.  The settlement cracks part of the orphan works problem through a judicial settlement.

JSTOR Ithaca: Guarantee multiple sources for this content?  Are there going to be other distributors?

Macgilliray: That’s up to the other one.  Microsoft is here.  Amazon is over there.

Columbia Undergrad: …cool that I have all these things on the Internet… phylisophical concern that Google controls the spread of information?

Grimmelmann: No concerns about Google’s power thus far.

Random House: Jurisdictional issue:

Cunard: The Second Circuit decided that the copyright claims could not be settled in a class action works that were not registered with the copyright office.  However, the Supreme Court has granted cert on this question.  The timing of this, however, will not effect our settlement.

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