On October 26 and 27—yes, just before Hurricane Sandy—New York Law School hosted In re Books, a “conference on law and the future of books.” A loose spiritual sequel to our 2009 conference on the Google Books settlement, D is for Digitize, In re Books was designed to bring together authors, publishers, librarians, scholars, and readers to think deeply about the challenges facing books in a digital age, and how law can help face those challenges. I’m happy to report that, following some post-Sandy cleanup, full video of the conference is now available online. (We will have downloadable versions ready soon.)
In my opening remarks, I tried to set a tone of good will for the conference:
We here in this room are joined by a common love of books. We are authors, publishers, literary agents, librarians, archivists, scholars and especially all of us are readers. And we are gathered together in a law school, for of all the professions, it is the lawyers who are the most devoted to the written word. Our task is to consider the future of books and law in a digital age. We stand at the crossroads of legal code, computer code, and the codex.
The legal system for books we have today is essentially the same one developed three hundred years ago to make cultural and economic sense out of the rise of a transformative media technology: the printing press. Today, we are living through—we are creating—another, equally transformative media technology: the computer. We are, I submit, still in the in incunabulum age of the digital book; the basic technology is clearly established, but the social outlines of what digital books will become are not. Determining the most appropriate laws to go along with them—whether it be the next iteration of copyright, or the Worshipful Company of Kickstarters, or the Deposit Library of Babel, or the inalienable moral right to have your wiki revisions properly attributed—we will not today or tomorrow finish the task, but we can perhaps help to advance it. …
It is early in the morning of the next age of books. Let us welcome in the day and see what it will bring. Continue reading
The Google Books lawsuit—seven years old and counting—grinds on. In May, Judge Denny Chin certified it as a class action, with three individual authors representing all authors with books scanned by Google. This Summer, Google appealed Chin’s decision, and that appeal is now being considered. On November 9, Google filed its opening brief, and it was supported by a group of library associations and by well over a hundred academics led by Berkeley’s tireless Pamela Samuelson. Electronic Arts, Pinterest, and Yahoo! also indicated they would like to file a brief, but didn’t get their act together in time and have asked for an extension.
Looking down the road, the issue of class certification is a procedural sideshow. The question everyone cares about—is it legal to scan books en masse?—almost certainly won’t be settled this year, and quite possibly not in 2013 either. Meanwhile, as the Google lawsuit plods along, the book industry bounds into digital. Google Books has gone from front-of-store to the backlist, and the publishers have already remaindered their own suit against Google. And, the Guild was soundly trounced in the parallel HathiTrust suit against Google’s library partners. Unless that resounding holding in favor of fair use is reversed on appeal, it may not much matter what happens to the original class action against Google. Still, it’s worth unpacking the issues now before the Second Circuit in the Google Appeal. Continue reading
The Authors Guild’s lawsuit against Google over book scanning is grinding on into its eighth year. After a settlement, an amended settlement, a rejection of the settlement, and a protracted procedural fight over certifying the case as a class action, it has made almost no substantive progress in front of Judge Chin. Meanwhile, the Authors Guild’s lawsuit against Google’s HathiTrust library partners has produced a definitive ruling from Judge Baer in little more than a year. What started as a sideshow has become the main event.
And what an event it is! The mainstream media were all over last week’s ho-hum settlement between Google and the AAP but have mostly kept quiet about yesterday’s ruling. In contrast, the Twitterverse exploded with news of the HathiTrust opinion and hasn’t quieted down yet. The Twitterers have it right: this decision is a big deal. There are so many winners from the decision, it’s hard to count them all: Continue reading
Last month, a British tabloid reported that Bruce Willis was planning to sue Apple. The actor, the newspaper explained, was furious that iTunes’s terms of service would keep him from leaving his music collection to his daughters when he died. The story was soon revealed to be somewhere between fantasy and fabrication. But even before a five-word tweet from Willis’ wife (“it’s not a true story”) definitively refuted the article’s claims, the news had gone viral, spreading far beyond the usual haunts of fatuous celebrity journalism. Something in the rage of Imaginary Bruce Willis had touched a nerve.
Part of what makes the story so remarkable is that it’s also so implausible. Bruce Willis is one of the most successful actors of his generation, with a Hollywood career spanning three decades and multiple mega-hits. He’s so successful that surely he could afford to leave his daughters enough money to buy all the digital music they they can listen to. No child of Bruce Willis will ever want for music.
But the story blew up like something out of a Bruce Willis movie because it tweaked an anxiety many people share about copyright: that we no longer really own the songs we listen to or the books we read. Traditionally, a crucial part of copyright law’s bargain between author and audience was that the author owns the copyright, the audience owns their copies. This second half of the deal—that we have the right to give away our media, to lend them to friends or sell them to strangers—was enforced by the doctrine known as first sale. You buy something and it’s yours. Only the author has the right to authorize more copies, but you can do with yours as you please. Continue reading