Julie Hilden. Seinfeld Sued: Will “Sneaky Chef” Author Missy Chase Lapine Succeed In Her Suit Against Jerry and Jessica Seinfeld? FindLaw. Jan. 15, 2008. We reported on Jessica Seinfeld’s cookbook back in October. Now the inevitable lawsuit (.pdf) has been filed, alleging copyright infringement and defamation, among other things. As William Patry noted in a comment about an infringement case involving the Baltimore Ravens’ logo, substantial similarity should not be enough to win an infringement lawsuit. The evidence also should show the defendant had access to the allegedly infringed work. Stay tuned.

(Editor’s Note: Copycense editors originally commented on this article in the Jan. 22, 2008, edition of Copycense Clippings.)

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dive into mark. The Future of Reading (A Play in Six Acts). Nov. 19, 2007. A great literary mashup that notes Newsweek’s breathless predictions that Amazon.com’s new e-book reader will change “the future of reading” is not due to the technology because the device’s license agreement and copy restriction technology will, in fact, impinge on “the future of reading.”

(Editor’s Note: Copycense editors originally commented on this article in the Dec. 18, 2007, edition of Copycense Clippings.)

Copycense™: Incisive IP.™

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“Digitization. Everyone’s talking about it, yet few have a firm grasp. Digitization seems to require substantial investment, since large institutions and Google have started massive projects, but there seem to be very few small libraries jumping in.

“However, both large and small institutions should be comfortable with creating, managing, marketing, and preserving digital assets through scanning or otherwise digitizing paper-based (or analog) materials. As we will see, ‘being comfortable’ means being both a generalist and a specialist at the same time.”

A LibraryJournal.com exclusive.

K. Matthew Dames & Jill Hurst-Wahl. Digitizing 101. LibraryJournal.com. Jan. 15, 2007.

CopyCense™: Creativity & Code.™ A venture of Seso Group LLC.

So now Jay Leno alleges that printing his jokes in a book compilation amounts to copyright infringement. (No, that’s not the opening to a joke.) Forget the fundamental question of whether or not these (or any other) jokes have been fixed in a tangible medium of expression. That such a lawsuit is being heard at all in federal court merely points to how ludicrously unbalanced copyright law has become.

Leslie Simmons. Comedians Allege Joke Compilations Infringe. The Hollywood Reporter. Nov. 30, 2006.

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This week’s edition of CopyCense Clippings features movement in the Google Book Search lawsuit, scuttlebutt over YouTube’s possible acquisition, Microsoft’s thoughts of placing malware on your computer, and the British Library’s intellectual property manifesto.

Article of the Week

Elise Ackerman. Google Seeks Rivals’ Data for Lawsuit Over Libraries. MercuryNews.com. Oct. 5, 2006. Has it been one year, already? We had to chuckle, because this is, at once, a brilliant legal and public relations strategy. From a public relations standpoint, it forces the Open Content Alliance (OCA) folks to divulge information about its project. If OCA doesn’t provide details, it looks like it is hiding something (effectively not “open” after all). The legal strategy, though, is even better. Google is trying to position book digitization as a natural extension of search, while saying to a court “See, everybody’s doing it.” By doing this, the case becomes about the viability of search — not just this single digitization program — and it there is virtually no way that a federal judge is going to issue a ruling that could significantly hamper Google and Microsoft and Yahoo!, as important as those companies are (financially and symbolically) to the American economy. (And if a federal district court judge does issues an adverse ruling, he is virtually certain to have parts of that decision overturned on appeal. No judge likes to have his decisions overturned on appeal.) As K. Matthew Dames wrote in the March 2006 edition of Online noted last year, these and other extra-legal factors point toward a positive outcome for Google, which is all the more reason why the library representative organizations should have been on board supporting Google a long time ago.

Quote of the Week

“The British Library last week voiced its concern after it found that of 30 licensing agreements recently offered to the library for use of digital material, 28 were more restrictive than the rights existing under current copyright law. ‘Our concern is that, if unchecked, this trend will drastically reduce public access, thus significantly undermining the strength and vitality of our creative and educational sectors,’ Chief Executive Lynne Brindley said in a statement.”

- Reuters. Rallies Protest Limits on Digital Copying. News.com. Oct. 3, 2006.

Clippings

• Elise Ackerman and Ryan Blitstein. Google In Talks to Buy YouTube. MercuryNews.com. Oct. 7, 2006. One person interviewed for the story, a “veteran of the Napster wars,” is quoted as saying “I don’t know why Google would be buying YouTube. They can’t just go in and buy a copyright infringement machine. They are a publicly traded company. They have obligations to their stockholders and they have obligations under the law.” Maybe Google thinks it is strong enough, rich enough, and important enough to the American economy at this point (remember all those data centers) that it can sway legislators enough to keep Big Content off its back on the copyright issue. Maybe it has enough gall to think it can do for online video music what Apple did with downloadable music (legitimize it, legalize it, and commercialize it). The Napster analogy is inappropriate because the environment has changed so radically. Then, content companies were arrogant enough to think they could move online at their own pace, under their own conditions. Now, many still outwardly present that notion, but the smartest companies know that they have no choice but to find a way to make the online model work.
• Reuters. U.S. Pushes Russia In WTO Talks to Close MP3 Site. News.com. Oct. 5, 2006. Trade talks and state law are the new ways in which federal copyright law is being introduced and codified. William Patry wrote about this phenomenon three weeks ago.
• Google Watch. ‘My Sharona’ Creators Sue Yahoo, Apple, Amazon and Run DMC for Copyright Infringement. Oct. 4, 2006. The Knack sues legendary hip hop group Run-DMC over the latter’s alleged use of The Knack’s “My Sharona” in the single “It’s Tricky.” “Sharona” was released in 1978; “Tricky” in 1986. The statute of limitations for a civil copyright infringement case is within three years of the claim’s accrual. (Heavy civil procedure concept; we’ll go no further.) We don’t think this one has a chance of getting past summary judgment, but we’ve seen stranger. And while we’re on sampling infringement cases, has anyone heard any update about the Ready To Die case? If so, please let us know.
• Associated Press. Microsoft to Step Up Anti-Piracy Stance With Windows Vista. SiliconValley.com. Oct. 4, 2006. Big Redmond vows “that people running an unlicensed copy of Vista that it believes is pirated will initially be denied access to some of the most anticipated features of the operating system. … If a legitimate copy is not bought within 30 days, the system will curtail functionality much further by restricting users to just the Web browser for an hour at a time.” (Emphasis added.) This really is worthy of a CommuniK. piece, but let’s just briefly parse this here. So Microsoft is essentially saying that it will intentionally shut down your computer if its spider deems that the version of Windows Vista you have on your machine is illegal (or simply not registered). How is that different from what happened in the Sony BMG spyware scandal, besides Microsoft announcing at least 6 months before Vista is ready to ship? The only difference we see is that the announcement was made 6 months before Vista is ready to ship, which suggests that Big Redmond is floating this as a public relations ploy to gauge where the wind might blow on this issue. If there is a big hue and cry — and their should be — then Microsoft will retreat slightly, then position itself as sensitive to customers’ needs while balancing its need to protect its intellectual property. Only then the spyware will come in another form. Does it sound like we’re cynical?
• Thomas J. Lueck. Coliseum Books to Close Permanently by Year’s End. The New York Times. Oct. 3, 2006. One of New York City’s last, great independent book stores succumbs to a changed marketplace. The store, first open on 57th Street near Columbus Circle and now located on 42nd Street across the street from Bryant Park and the main branch of the New York Public Library, first opened in 1974.
• Alan Sipress. Ever So Humble. WashingtonPost.com. Oct. 3, 2006. Reasonable people can debate whether the removal of the “I’m Feeling Lucky” button would lead to “mass protests worldwide,” the article does offer some insights into the spartan design that is the Google home page.
• Laura Holson. Is Th-Th-That All, Folks? The New York Times. Oct. 3, 2006. The lack of imagination in the creative industries is astonishing. Once something works, like animation, then everyone wants to plumb that line in the name of revenue and profit. Recently, we have seen articles that suggest that publicly-held newspaper companies take themselves private as a way to focus on their core mission without having to worry about investors’ quarterly financial demands. Can the same question viably be put to media and entertainment companies?
• David Cohn. At BarCamp, Form Trumps Substance. Wired News. Oct. 3, 2006. Although the story’s title is somewhat dismissive, we think this idea (or rather, the format) actually could be very effective if implemented into a law school curriculum. Intellectual property law is created by, and opined on, some individuals (legislators and judges) who, as a class, are incredibly technologically illiterate. The next generation of lawyers, legislators, and judges must be able to fully understand a wide host of technology issues, understand where they apply commercially and societally, and be able to write laws and opinions that reflect a balance between protection and possibility. (See also, O’Reilly’s Foo Camp.)
• Robin Peek. The British Library Releases Intellectual Property Manifesto. Information Today Newsbreaks. Oct. 2, 2006. Lynne Brindley’s comments last week on copyright were our QoTW, but regretfully we forgot to post a link to the news item, nor did we actually provide information about the British Library’s press release or the actual Manifesto (.pdf). Will James Billington (to whom Register of Copyrights Marybeth Peters reports) please stand up?
• Fred Vogelstein. Rebuilding Microsoft. Wired. October 2006. What happens to the most powerful technology company in the world when it’s iconic co-founder steps down, just at a time when the platform upon which it made its fortune begins to be irrelevant?
• Elise Ackerman. Judge Dismisses Suit Against Google Over Trademarked Terms in Ads. MercuryNews.com. Sept. 29, 2006. Of course, decisions like this (.pdf) are welcome for Google, whose entire financial house is built upon AdWords revenue. This decision helps to settle the law in this area. What we find interesting about this case is its venue. The Northern District of New York typically is not known for handling these types of cases. Most of the time, the venue of choice is the Southern District of New York or any of the California districts.
• 7online.com. N.J. Sales Tax Covering More Items. Sept. 28, 2006. So it seems New Jersey is one of an increasing number of states that is taxing digital downloads. New York State does not tax downloads (yet) but does charge an Internet use tax to all residents and businesses.

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This snippet from the Washington Post was so interesting I had to drop in an offer a comment:

“Allan Adler, the vice president for legal and government affairs for the Association of American Publishers, [shakes] his head at what he sees as the breathtaking arrogance of” Google’s Book Search project.

A bit of context here is in order. The quote comes from an article published in yesterday’s Washington Post, sort of an update on the Google Book Search project. As is the case with this issue, the Post predictably interviews all the usual suspects: including Google executives (who won’t talk about the project because of its proprietary nature, yet still manage to talk about it to keep the project in the press); and publishing industry flaks (all of whom talk about how great Google Book Search would be if only Google would ask permission to digitize the works).

We are amused for several reasons. First of all, this story has no news value. It is a “we haven’t run anything on this topic, and it’s a slow news week for everything except the airport and the Lebanon crises, so let’s do an update” story. Second, nothing new has been added to this story.

But the kicker is Allan Adler, of all folks, being characterized as miffed because somebody didn’t bow down, kiss his ring, and ask permission before doing something with the work of one of his clients. Maybe the 15 or so exceptions to copyright actually do mean something after all.

Adler calling Google arrogant is really the pot calling the kettle black. Since I first was introduced to him at an American Association of Law Libraries annual conference some years ago, Adler and his Big Content mates have acted like arrogant, dismissive people who expect that libraries, among other institutions, have a duty to protect publishers (and their profit margins) from being made extinct by Web-based technologies and flat world evolution.

Now Adler and his cronies face an opponent that has the money and public relations capital to rebut their public relations campaign to instill what Lawrence Lessig calls “permission culture.” Further, Google arguably is more important to the domestic and global economy than any single publisher. Google’s impact and influence globally is a factor that may not get argued in a legal brief, but certainly will influence the decisionmaking process of a judge or jury.

“Breathtaking arrogance”? Mr. Adler, we’re glad you’ve noticed the attitude. I just wish libraries would adopt more of that attitude as well.

CopyCense™: The law, business, and technology of digital content. A business venture of Seso Digital LLC.

“From history’s vantage point, the Rev. Dr. Martin Luther King, Jr.’s notes, papers and books are priceless. But the King family and the auction house Sotheby’s estimate they’re worth at least $15 million and possibly twice that. And they’re about to go on the block.

“Museums and libraries, groups and individuals are busy raising funds to acquire the collection, while Atlanta natives are concerned that a cornerstone of the city’s culture is about to be chipped away.

“The collection goes on public display at Sotheby’s New York galleries starting June 21. It will be auctioned off on June 30.”

Joshua Levs. Sotheby’s to Auction Martin Luther King’s Papers. National Public Radio. June 21, 2006.

CopyCense™: The law, business, and technology of digital content. A business venture of Seso Digital LLC.