An Introduction to Information Technology Law

Introduction to Information Technology Law

Table of Contents Introduction The Dispute - Copyright infringement Definition of Fair Use What Did the Court Decide, and Why?

Introduction

Google's Library Project, a solution launched in 2004 allowing users to find relevant books easier. This project is also known as Google Book Search. In this project, Google partnered with several major libraries to include their collections in Google Books by scanning and categorizing the booking electronically. Google books, allowing users to perform full-text search through those scanned books. Million of books were scanned by Google which is still in copyright while Google did not obtain the copyright permission of those scanned books. Google books operated based on Google’s search engine. The result will be displayed in an interface which full or partial book preview or some snippets or no preview at all. Google annoyed the plan to digitize books and make them available on Google Books in a rate of approximately 15 million volumes within a decade. However, Google did not obtain copyright permission while scanning millions of books that are still under copyright. This triggered controversy from some parties such as authors and publisher to challenged Google on digitizing Books which is in-copyright. In 2005, The Authors Guild and Association of American Publishers separately filed lawsuit against Google. The claim against Google is a ‘massive infringement’ on Copyright while the company failed to properly compensate authors and publishers. The group are seeking for injunction for Google to scan copyright books. Google's principal defense is fair use under 107 of the Copyright Act, 17 U.S.C. 107.[1] In 2008, Google has reached a settlement agreement (The Amended Settlement Agreement (“The ASA”)) with the parties. The proposed settlement was preliminarily approved by Judge John E. Sprizzo by order entered November 17, 2008.[2] Google was expecting in exchanging for the right to make millions of books available to the public. The Settlement Agreement was revised in 2009 in order to take care of the feedback from rightsholders. March 2011: A federal judge Denny Chin rejects the settlement reached between the publishing industry and Google because the agreement is not fair, adequate, and reasonable,[3] for example, providing a monopoly environment to Google and implementing a forward-looking business arrangement. March 2012 Google reach settlement with publishers.[44] On May 31, 2012 Judge Chin issued an opinion on denying Google's motion to dismiss and granting the individual plaintiffs' motion, from Authors Guild (“AG”) and the American Society of Media Photographers and other named photographers’ associations (collectively “ASMP”), for class certification. Authors Guild v. Google Inc. [4] in their separate suits against Google relating its scanning of books and the images they contain. In late 2013, the U.S. District Court for the Southern District of New York ruled in Google’s favor on summary judgment2 and held that Google’s actions were fair use. This article provides a summary of the issues involved, the reasoning behind the decision and the takeaways from the case.

What is Copyright?

Copyright legislation is part of the wider body of law known as intellectual property. [5] Industrial property and Copyrights are two branches of intellectual property rights while Industrial property such as patents protects inventions and copyright protects literary and artistic works.[6] As mentioned above, copyright is a form of an intellectual property. It is exclusive and assignable legal right grants the creator of an original work protecting works such as but not limited to text, artistic works, music, computer programs, sound recordings and films. The expression of copyright refers to the copying act of protected works may be made only with the authors’ authorization. [7] Hence, the copyright owners may prevent others from reproduction, distribution, rental and importation their work without their permission. Copyright can be grant to others in specific rights, for example the right for copying, a publisher may be allowed to copy the work after obtaining a license from the author. There are few properties of copyrights:

1. Copyright is grant to the author of the expression of the ideas as soon as it exists. In most of the countries, public registration for copyright protection is not necessary.
2. Copyright is transferrable in full or partial form. The copyright owner is able to transfer the right to others, for example, license the copying rights to other.
3. Unlike patents, copyright law protects only the form of expression of ideas; it does not protect ideas, concepts, styles or techniques.
4. Copyright is separated from the property right, for example, owning a book does not grant you the copying right of the book.

There are some limitations on the copyright rights. Under the law of the United States, certain categories of works are excluded from the copyright protection[8]

1. The first sale doctrine

Copyrighted work could be resell legitimately if the work is obtained legally licensed. That is the work is originally produced by or with the permission of copyright holder.[9] For example, resell of a copyrighted book which is produced in authorization of the author is legally allowed and does not infringe copyright. This first sales doctrine also subjected to some important conditions and exceptions under the Copyright Law of the United States of America Section 109(a). For example, rental of a music CD under the first sales doctrine is not allowed.

2. Fair Use and fair dealing

Copyright was subjected to a fair use limitation in some jurisdiction such as the United States. The doctrine of fair use was developed through a substantial number of court decisions over the years and has been codified in section 107 of the United States copyright law.[10] Under the doctrine of fair use, there are certain usage of copyright material are allowed legally.

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work

3. Competition law / anti-trust law

The Dispute of the Goole Books Case - Copyright infringement

In the Google Books Case, the main focus is on Goggles’ act of massive digitizing in-copyright material without obtaining proper permission from the copyright owners.

Definition of Fair Use

But third, and most important, not every “copy” violates copyright law. In particular, if a copy is “fair use,” then copyright law has not been violated. The question in this case is thus, as always, is the copying for purposes of making snippet access available “fair use.” As much as you know that it is wrong to download music without the permission of the copyright owner, I hope you also know that it is right to make copies — even without the permission of the copyright owner — when such copies are fair use Fair use basically means there are certain situations in which copying is excused under the Copyright Laws. The Fair Use Doctrine is codified in 17 U.S.C. 107 (the Copyright Act), “In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.” Classic examples of situations where the Fair Use Doctrine has applied include: news reporters copying portions of a work for purposes of news reporting and criticism;[11]

The Amended Settlement Agreement

In October 2008, the Amended Settlement Agreement (ASA) is a 166 pages document with the core value of allowing public access to millions of out-of-print books registered in the U.S. Copyright Office. With ASA, Google will able to (1) continue to digitize Books and Inserts, (2) sell subscriptions to an electronic Books database, (3) sell online access to individual Books, (4) sell advertising on pages from Books, and (5) make certain other prescribed uses.[12] The scope of the settlement was limited to books that were either registered with the U.S. Copyright Office or published in the U.K., Australia, or Canada, which share a common legal heritage and similar book industry practices. [13] Under this settlement, Google will establish a standalone, not-for-profit Book Rights Registry to maintain a database of rightsholders in order to locate the rightsholders and administer distributions of revenues.[14] 63% of all revenues of retailing access to the out-of-print books will be distributed to the rightsholders in accordance with a Plan of Allocation and Author-Publisher Procedures, while retailers will keep the majority of the remaining 37%.[15] For Unclaimed Works, an Unclaimed Works Fiduciary will be setup to represent the interest with respect to[16]. The fund will be hold on behalf of the rightsholders by Book Rights Registry. After five years, the accumulated fund will be used to locate the rightsholders. After 10 years, the Registry may ask the court to distribute those funds for non-profit use for the reading public. For books inserted before May 5, 2009, Google will pay $45 million into a Settlement Fund to make Cash Payments to rightsholders,[17] at minimum $60 per Principal Work, $15 per Entire Insert, and $5 per Partial Insert and maximum $300 per Principal Work, $75 per Entire Insert, and $25 per Partial Insert, depends on the amount of eligible claims. The ASA classified in-print (Commercially Available) and out-of-print (not Commercially Available) Books.[18] Under the ASA, Google are allowed to make only non-display use of the in-print books unless an explicit authorization was grant by the Books’ rightsholders. Google are allowed to display out-of-print books but the rightsholders may instruct Google to stop it. If the above settlement was success, it will benefit the society in:

• Allowing the public, such as students, scholars, and readers to search, preview, and purchase online access to of in-copyright, out-of-print books.
• Create a channel for authors and publishers to sell their copyrighted works
• Create an independent, not-for-profit Book Rights Registry that will locate and represent rightsholders, making it easier for everyone to license works; [19]
• Allowing the public for free, full-text, online viewing of millions of out-of-print books at designated computers in U.S. public and university libraries; and[20]
• Enable unprecedented access to the written literary record for people who are visually impaired. [21]

There are approximately 500 filed submissions, in majority objections to ASA. According to the opinion of case The Authors Guild et al. vs. Google Inc.[22] There are 7 main objections to ASA.

1. Adequacy of Class Notice

Inadequate notice was given to certain class members of the original settlement ASA such as Science Fiction and Fantasy Writers of America, Inc., the American Society of Journalists and Authors, Inc., and certain foreign publisher and authors associations object to the adequacy of notice.[23]

2. Adequacy of Class Representation[24]

Certain objectors object to the ASA because their interests are odds with the interest of the representative plaintiffs. The adequacy of representation inquiry considers whether “1) plaintiff’s interests are antagonistic to the interest of other members of the class and 2) plaintiff’s attorneys are qualified, experienced and able to conduct the litigation.” [25] The court concluded there is a substantial question on the existence of antagonistic interests between named plaintiffs and certain members of the class.[26]

3. Scope of Relief Under Rule 23

The ASA consists two distinct parts. The first part is a settlement of past copyright infringement while the second part is transferred to Google certain rights in exchange for future and ongoing arruangements.[27] This is in result releasing Google from liability for certain future acts. Certain objectors were objecting to this “forward-looking business arrangements” in a reason that the relief goes beyond the dispute before the court in this litigation.[28]

4. Copyright Concerns

Certain objectors point out that the ASA pertaining to "orphan works" would result in the involuntary transfer of copyrights in violation of the Copyright Act, as copyrighted works would be licensed without the owners' consent.[29]

5. Antitrust Concerns

Certain objectors object the ASA because it violates the Sherman Act in certain pricing mechanisms on the ASA. The ASA allowing Google on scanning books, especially orphan books, would also allow Google a monopoly over digital books and, hence, entrench Google's dominant position in the online search business. [30]

6. Privacy Concerns

Certain objectors contend that the ASA raises significant privacy issues.[31] By digitalizing books, Google collected huge amount of information including private information about identifiable users.[32] The protection of the use of those information is not adequate.[33]

7. International Law Concerns

Since scope of ASA was limited to books register with the U.S. Copyright Several foreign authors and entities contend that the ASA would violate international law by assuming the right of foreign rightsholders are not covered and by favouring rightsholders from certain nations.[34] On March 22, 2011, Judge Denny Chin handed down his Order rejecting the proposed settlement agreement (the ASA) between The Authors’ Guild et al. and Google. He explicitly said that the ASA is not fair, adequate, and reasonable. [35] Te court would like to leave this matter to the Congress as the decision is 1) establishment of a mechanism for exploiting unclaimed books; 2) The notion that a court-approved settlement agreement can release individual rights owners who have not voluntarily consented to transfer is a troubling one; 3) ASA is violating the international principles and treaties.

What Did the Court Decide, and Why?

On summary judgment, Judge Denny Chin considered a variety of factors, and ultimately concluded that Google’s actions were fair use.

Reference

Increasing Access to Books: The Google Books Settlement: https://sites.google.com/a/pressatgoogle.com/googlebookssettlement/home Fair use - the Google Books project[36] The Google Books decision: The Authors Guild v Google Inc[37] 1 | Page

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[1] Case 1:05-cv-08136-DC Document 1088 Filed 11/14/13 [2] 05 CIV 8136, The Authors Guild et al. vs. Google Inc., United States District Court, see also: ECF No. 64 [3] 05 CIV 8136, The Authors Guild et al. vs. Google Inc., United States District Court, page 45 [4] I.d., page 14, see also: 282 F.R.D. 384 (S.D.N.Y. 2012) [5] Understanding Copyright and Related Rights, WIPO Publication No. 909(E), ISBN 978-92-805-1265-6, page 4 [6] Understanding Copyright and Related Rights, WIPO Publication No. 909(E), ISBN 978-92-805-1265-6, page 4 [7] Understanding Copyright and Related Rights, WIPO Publication No. 909(E), ISBN 978-92-805-1265-6, page 4 [8] Understanding Copyright and Related Rights, WIPO Publication No. 909(E), ISBN 978-92-805-1265-6, page 5 [9] Copyright – Wikipedia, en.wikipedia.org/wiki/Copyright [10] FL-102, Reviewed June 2012, U.S. Copyright Office, https://www.copyright.gov/fls/fl102.html [11] See, e.g., Religious Technology Center v. Pagliarina, 908 F.Supp. 1353 (E.D. Va. 1995) (the Washington Post newspaper quoted brief portions of Church of Scientology texts in an article, and its use was deemed a fair use); and Italian Book Corp. v. American Broadcasting Co., 458 F.Supp. 65 (S.D.N.Y. 1978) (a television film crew covering a festival recorded a band playing a portion of a copyrighted song, and the film was replayed during the news broadcast — the unauthorized reproduction of the song portion in this case was deemed fair use). [12] The Revised Google Books Settlement Agreement, 3.1, 4.1-4.8; see also ASA 1.149, https://6c01e33b-a-7d83507a-s-sites.googlegroups.com/a/pressatgoogle.com/googlebookssettlement/revised-settlement/SettlementModificationsOverview.pdf?attachauth=ANoY7crqyX4nDlCchCcwFrUopGM-s65QJxsvvsxfWPwKMU4g0QLQko_j0PPkna-fXc7cJWK17tH97--EeV9R5W-9458ZFK_12mosgClUMJVt1ZarH9g5gM0FVHqcIJ2seGQMIBxnl0ng45vO8E60ZrKHdkuKxb6uE-8tVX58ccaYck3VT0nL53iIM0bcsbcxG05HOUJssaDcrgJ7HvNdIzqssMRo9VpT5tPFJ4MbFjRLTh7N-xpirYH3HNjzipjGLF8uMwadZGVT0i6Wt5Z5wVXQmZzNrdFlPcSoID0R1LLPpE6mxZUtZ4E%3D&attredirects=0 [13] I.d. [14] I.d., 6.1(b) [15] I.d., 2.1-2.4, 4.5, 5.4, [16] I.d., 3.2(e)(i), 3.3, 3.10, 4.2(c)(i), 4.3, 4.5(b)(ii), 4.7, 6.2(b)(ii) [17] I.d., 2.1(b), 13.4; [18] I.d., 1.31, 3.2, 3.3 [19] I.d., 6.1(b) [20] Id. [21] Id. [22] 05 CIV 8136, The Authors Guild et al. vs. Google Inc., United States District Court [23] I.d., Page 11 [24] I.d., Page 11 [25] I.d., page 20 [26] I.d., page 20 [27] I.d., page 21 [28] I.d., page 12, see also 17 U.S.C. 201(e) [29] I.d., page 21 [30] I.d., page 13 [31] I.d., page 12 [32] I.d., page 12 [33] I.d., page 12 [34] I.d., page 12 [35] I.d., page 45 [36] C.L.S. Rev. 2014, 30(1), 86 [37] E.I.P.R. 2011, 33(8), 531-536

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