Balkinization on Author's Guild v. Google Print
Things do not look good for the Author's Guild when people like Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment and also Director of The Information Society Project at Yale Law School, write that the lawsuit "is just plain silly". Balkin comments in his September 28, 2005 posting titled Search Me. Please.:
"As an author who is always trying to get people interested in my books, including (Warning: shameless self promotion ahead) my first book, my second book, my third book, my fourth book, my fifth book, and my sixth book, I have to agree with Tim O'Reilly's op-ed: the Author's Guild suit against Google is counterproductive and just plain silly."
Go to Balkinization to read more.
Legal Theory Blog
Lawrence Solum hits the nail on the head when he writes as follows about the Author's Guild filing the complaint as a class action:
"Putting on my proceduralist hat for a moment, there is a very substantial problem with class certification. The complaint defines the class as follows:
'The Class is initially defined as all persons or entities that hold the copyright to a literary work that is contained in the library of the University of Michigan.'That class includes many authors who would be injured if the plaintiffs were to prevail--including, for example, me! I am member of the plaintiff class--owning the copyright to at least three or four dozen works in the University of Michican library. I have a very strong objective interest in Google Print succeeding--because as a scholar, I benefit from the dissemination of my works and because reaching agreement with Google will be costly to me and Google, essentially killing the project. A substantial intraclass conflict of interest destroys "adequacy of representation," making class certification inappropriate, both under the federal rules of civil procedure and under the due process clause of the fifth amendment of the U.S. Constitution. Opt out is not a solution--because that would create an affirmative duty to monitor the litigation and opt out (in order to preserve a constitutional right), and the Supreme Court has made it clear that no such duty should be created in a number of cases, including Phillips Petroleum v. Shutts. Pro-bono representation for intervenors opposing certification, anyone?"
The Law Pundit also has one book in the University of Michigan Library. We thus join Solum in his arguments and find that a class certification in this case is inappropriate.
Media Law Prof Blog
Christine A. Corcos refers to an article by Findlaw's Julie Hilden titled "Authors Sue Google Over Its "Print for Libraries" Project: Will the Suit Succeed? Should It? And Why, As An Author, I'm Opting Out of Any Class Action". Hilden discusses the class certification issue in practical detail.
Karl-Friedrich Lenz sees reproduction per se as the main legal issue, as he posts here, here and here.
There is no issue that Google "reproduces" copyrighted material in a database. We disagree here with Lenz on this point, however, and think that the issue is not reproduction per se, but rather whether the use of that reproduction is transformative, which, on the other hand, is permissible fair use.
Open Access News Blog and the L.A. Times
Via the Open Access News Blog.
Xeni Jardin in his September 25, 2005 article in the L.A. Times, You authors are saps to resist Googling, writes regarding the Author's Guild lawsuit:
"If the paranoid myopia that drives such thinking penetrates too deeply into the law, search engines will eventually shut down. What's the difference, after all, between a copyrighted Web page and a copyrighted book? What if Internet entrepreneurs could sue Google for indexing their websites? What if the law required search engines to get clearance for every Web page? Even a company as large and well-funded as Google couldn't pull that off because what's on the Internet, and who owns that content, changes constantly.
As one author told me, "fear of obscurity, not digital indexing, is what keeps most authors awake at night."
Technology that makes it easier to find, buy and read books is good for everyone — even the authors suing Google."
Copyfight and the E-LawLibrary
Copyfight and E-LawLibrary have noted the Patry reversal on the case, which we mentioned previously.
Joe Gratz and Seth Finkelstein
JoeGratz.net covers the issue of copyright infringement and statutory damages as it potentially applies to Google, referring to Seth Finkelstein's InfoThought, which comments on the same issue via Ed Felten's Freedom to Tinker.
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