Thursday, October 29, 2015


This article originally appeared in the 10.29.15 issue of Metroland.

You may have heard that the New York federal appeals court granted Google a big win in the long-running lawsuit brought against it by the Authors Guild over the Google Books project.  To briefly review, many years ago, Google announced that is was embarking on the mind-blowing task of scanning the entire contents of several of the worlds’ largest libraries to create a database of, well, pretty much all of the worlds’ knowledge.  Public domain works could be downloaded in their entirety, users could get multi-page previews for in-print books for which permission has been granted, and everything else would be subject to keyword and key-phrase searches, where the search results would be short snippets where the word or phrase could be found.

            Of course the book publishers went ballistic, screaming about “piracy” and “theft,” and the boneheads at the Authors Guild, a trade association claiming to represent the interests of writers, jumped in with a big ol’ lawsuit.  In act of attempted appeasement, Google allowed copyright owners to opt-out of the searches.  That didn’t appease anybody. 

            At the time the lawsuits started, like around 10 years ago, a whole bunch of us out here in rational-thought-land wondered why the Authors Guild was taking a position that was obviously against the interests of its members—Google Books would drive sales, would revive old, forgotten books, and would be an ace plagiarism detector.  But no!  Google was making copies, well, one copy, and copies are evil.

            So the litigation continued apace, and about 5 years ago the parties announced that they’d reached some sort of settlement.  It involved a pretty big cave on Google’s part, a lot of money being paid to the publishers, and a less robust search environment.  And it totally ignored what had been Google’s best argument, that the scanning and database were a fair use of the authors’ and publishers’ copyrights.

            But the judge rejected the settlement, saying that as it would apply to all authors and all authors weren’t represented by the Authors Guild, well, it wasn’t a fair settlement to the unrepresented authors.  Shortly after that, an appeals court told the judge to take a good look at the fair use issue.  The judge did, decided what Google was doing was fair use, and dismissed the case.  The Authors Guild (again) appealed.

            The latest (and probably last) decision wasn’t a surprise; it struck me as the judicial equivalent of shooting fish in a barrel.   There was a decision from the same court a year ago in another case involving some libraries’ uses of Google Books which more or less settled everything, and this appeal was really a matter of the Authors’ Guild foolishly spending its members’ money to stage a passion play for the cheap seats.   That being said, it was nice to read Justice Pierre Leval, a great writer who has been central in crafting the modern (and intelligent) view of fair use, take his victory lap, eloquently restating very settled law, once more with feeling.

            Reading the Authors Guild’s idiotic arguments made me laugh out loud a couple of times.  I’m weird that way.  But really. 

            The copying by Google wasn’t a transformative use of the books.  Oh really?  The books were written for whatever purposes the authors had in mind.  Google scanned them to create a knowledge database, to make it easier for us to find books with things in them we want to read about.  How is that anything but transformative?

            Even though Google is providing the public with searches for free, its ultimate goal is profits.  So?  You say it like it’s a bad thing.  The Supreme Court ruled a long time ago that whether a work was made for profit or not wasn’t a controlling issue, just one among many.  And here it’s merely arguable that what Google was doing was “for profit.”  Next.

            Google is depriving authors and publishers from revenue from entities that might pay them to have their books in search engines.  Uh-huh.  And where’s the line of entities creating for-profit search engines?  Google has scanned millions and millions of books.  And provided searches for free.  If there was no Google Books at all, do you really think some venture capitalists are going to fund the scanning of entire libraries to be eventually paid for by paid searches?

            Google has made it easier for hackers to steal books.  OK, how’s this?  I can go to the library, take out a book, then go home and scan it myself.  STFU.

            The Authors Guild says (of course) that they’ll take the case to the Supreme Court.  Their case is so awful that the Supremes will decline to hear it.  Wake up, Authors Guild.  It’s 2015, for crying out loud.

Paul C. Rapp is a local lawyer and freedom fighter who thinks librarians are just about the coolest people in the world.

Wednesday, October 14, 2015

10.15.15 MUSLIMS & TPP

This article originally appeared in the 10.15.15 issue of Metroland

Buried under all the hoo-hah about the debates and Lamar Odom was a significant court ruling regarding basic freedom that came out of a federal appeals court Tuesday in Philadelphia. The decision in the case Hassan v. City of New York over-ruled the dismissal of a lawsuit against the New York City Police Department over its surveillance program targeting Muslims.

            The allegations made by the plaintiffs are absolutely chilling: the systematic gathering and cataloging of information about Muslims, Muslim organizations and mosques; the undercover infiltration of civic organizations, schools businesses, and religious groups; and video surveillance of mosques and businesses.  All of this information was compiled in massive databases and analyzed and countless secret reports were generated.  And this program didn’t target dangerous or suspect individuals or groups.  It just targeted Muslims.

            I’ve read press reports that no arrests ever resulted from all this skulking around.  None.

            The trial court judge, a hack politico appointed by W in 2002, ruled, rather remarkably, that (a) the plaintiffs (all people and groups that had been spied on) couldn’t show any “cognizable injury-in-fact” and (b) the claim of religious discrimination failed because “[t]he more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies.”   Oh really?

            The appeals court made mincemeat of both the trial judge’s and the City’s absurd arguments.   In an incredible, epic, and scholarly almost 60-page decision (that will probably be included in law school courses on Consitutional Law), the Court ruled that the allegations, if proven, make out clear violations of the plaintiffs’ rights under the Equal Protection Clause as well as the First Amendment. The decision closed with:

     What occurs here in one guise is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight—that “loyalty is a matter of the heart and mind, not race, creed, or color.”


            Moving on.  You might recall earlier columns about the Trans-Pacific Partnership, a multinational trade deal, years in the making, that’s been negotiated in secret by government officials in “industry representatives.”  How Congress gave Obama “fast track authority”, which means Congress can only give the entire treaty a thumbs-up or thumbs-down, with no ability to reject individual parts.  Well, apparently, the negotiation is over and the treaty is done.  But we still haven’t seen it, because… well, just because.  We’re supposed to be allowed to see it soon, but meantime, the good folk at Wikileaks have released something that is supposed to be the intellectual property part of the deal.  And it’s awful.

            The TTP requires all countries to adopt the absurdly long copyright term of life of the author plus 70 years.  That at a time when most scholars and many in government are contemplating shorter terms, because 100+ years for a copyright really can’t be justified with any rational argument, and it has frozen the public domain in place for the at least the last 40 years, and will continue to freeze it for the foreseeable future.  And speaking of the public domain, that’s relegated to the plaudit section of the treaty, something governments should “consider,” but no mandatory measures.  The same goes for fair use.  Instead, the treaty calls for more copyright enforcement, stricter digital rights management (technological ways to keep people from accessing or copying things), and higher penalties for infringement.  Even worse, the treaty mandates that Internet Service Providers, like your cable company, have the obligation to enforce copyright laws, that is, to bust their own customers for infringing activity.

            It’s pretty sickening, and it’s only a small part of the much larger treaty, that reportedly includes huge gimmies to Big Pharma, including things like special new patent protections for “biologics” and forcing third world countries to fully enforce pharmacological patents.  In other words, to keep medical drugs so expensive that people in many countries won’t be able to afford them.  And so they die.

            Just last week, Hillary, feeling the Bern, came out against TPP, which means the two Democratic front-runners both oppose the treaty.  The Republicans are either too busy with Jeebus or fake freedoms to pay much attention, and besides, they’ve all been bought off by the treaties proponents.  I’m thinking it will take a SOPA-like public uprising to kill this bastard thing.  Let’s do it.

Paul C. Rapp is a local IP attorney who hates long walks on the beach and candlelit dinners and pina coladas.  He prefers bourbon and Kinky Friedman.