Tag Archives: Google

Guest Post: Fair Use or Foul Ball?

Gregory Winsky

Gregory J. Winsky of Archer & Greiner, PC

See below for more information about my partner Greg Winsky, who is just snarky enough to merit a guest post on LIKELIHOOD OF CONCLUSION on a topic I’ve been covering — and inviting guests to cover — for years despite his being way overqualified as a real, live intellectual property lawyer.

When copying 20,000,000 books without permission is not copyright infringement

Jim Bouton’s last pitch to Google wasn’t Ball Four, at least according to the umps of the Second Circuit who decided — after replay — that the digital giant had smacked the pitcher-turned-author’s hanging slider more than 330′ directly  over the foul pole boundary of the short porch in right.

In The Author’s Guild v. Google Inc., a three judge panel of the Second Circuit Court of Appeals affirmed a grant of summary judgment in favor of Google by the District Court of the Southern District of New York against the former Yankee pitcher, one of the named plaintiffs, and The Author’s Guild, the nation’s professional organization for writers, once headed up by such luminaries as Pearl Buck and Erica Jong (which organization had been found to lack standing to bring claims of copyright infringement on behalf of its members).

The 2013 summary judgment decision held that Google, having made digital copies of the full text of tens of millions of books without the permission of the authors and having provided a publicly available search function with an electronic viewer that copies out “snippets” of works retrieved, had not infringed Bouton’s, nor anybody’s, copyright, because Google’s digitization was “transformative” and therefore constituted “fair use” under the Copyright Act.

BallFourStating off the bat that “[t]his copyright dispute tests the boundaries of fair use, “the Second Circuit expanded the strike zone of the Fair Use exception in Section 107 of the Copyright Act, even in the face of the assertion of the plaintiff/copyright holders that Google’s “ultimate profit motivation” in the creation of this new monolithic digital library1 should obviate a finding of fair use under first prong of the Section 107 analysis, that is, “whether such use is of a commercial nature.”

The appellate court disagreed, stating that “we see no reason in this case why Google’s overall profit motivation should prevail as a reason for denying fair use over its highly convincing transformative purpose.”

Read More…

Google Books settlement takes it on the Chin

I raised questions about the Google Books settlement ages ago.

Now some of them have been answered, and Judge Denny Chin’s answer is “no”:

While the digitization of books and the creation of a universal digital library would benefit many, the [Amended Settlement Agreement] would simply go too far.  It would permit this class action – –  which was brought against defendant Google Inc. (“Google”) to challenge its scanning of books and display of  “snippets” for on-line searching – –   to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners.  Indeed, the ASA would give Google a significant advantage over competitors,rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyondthose presented in the case. . . .

Read More…

Best of 2009: Don’t be evil, much

Posted February 7, 2009.google-logo-874x288

It was bad enough that the government has gone “in house” on copyright issues.  Now not only is the government looking more and more “bought” on this, but the “Don’t be evil” kids — again, via Glenn — also continue to confirm everyone’s worst fears.  (No they’re not the government… not yet…)  First it was the turnover of YouTube to the RIAA.  Now it’s Google’s Blogger empire. This from TechDirt:

[M]any music bloggers are now fighting a much more invisible menace, with posts they’ve written suddenly disappearing from their sites (via Tyler Hellard) hosted on Google’s Blogger platform. An RIAA source says that the group sends Google a list of URLs it doesn’t



like, and Google “then deals with the problem.” Google says that it notifies bloggers after their posts have been taken down, in accordance with the DMCA. But it should hardly be surprising that many of those affected say they’ve gotten no such notice, nor that the offending material was either legally posted and/or supplied by the labels themselves.

Maybe.  Read More…

Best of 2008: Which exit did we get off, again?

Posted on September 7, 2008.

Well, maybe we’ve been too hard on the Democrats here at LIKELIHOOD OF CONFUSION®.  Perhaps unlike the GOP, they’ve got good, progressive IP counsel out there, and maybe an Obama Administration will take a more realistic view of what you can and can’t do on the Internet.  At least we know they don’t have any hangups about “deceptive key word advertising” or “Internet traffic diversion,” the modern bugaboos of Internet trademark litigation.  Turns out they think those things are pretty keen!



Above is a screen shot (click for full size) of a search result you got if you searched Google for SARAH PALIN SPEECH on Saturday night — note the sponsored link on top, in color, that links to the Democratic Convention website, DemConvention.com:

The link tells Internet users they’re going to a page called DemCovention.com/RNC.  Wow, are they showing the Palin speech in order to get you to compare it critically to what the DNC has to offer?  It’s comparison shopping, right?  A modern-day Miracle on 34th Street!

Well, no.  Here’s what you actually get: Read More…

Best of 2007: MoveOn.org giveth

Originally posted on October 15, 2007.

But does it then taketh away? Wired reports:

The left-leaning political advocacy group, MoveOn.org, is backing down in a flap over the use of its name in online advertisements, permitting an influential Republican senator to criticize the organization in a reelection ad on Google’s search engine.”We don’t want to support a policy that denies people freedom of expression,” says Jennifer Lindenauer, MoveOn.org’s communications director.

MoveOn has withdrawn its instruction to Google not to run ads utilizing its trademark, MOVEON.ORG.

That certainly sounds like the right thing to do if you’re “progressive,” or even if you’re not. In the article, Lindenauer says that the concern was not with the content of critical advertising, but with potential fraud — unauthorized advertisers raising funds in MoveOn’s name.

Ron Coleman on Fox News

The video of the post of the blog

Google remains unmoved, not surprisingly (U/D: “This doesn’t get Google off the hook”); its policy is still stuck at “maximum protection for Google,” ostensibly at the cost (to Google) of advertising dollars, in exchange (for Google) for a reduced exposure to involvement in lawsuits. The cost to third parties and to the public of this policy, which treats any use of a trademark as a potentially actionable trademark use, is incalculable — but that is not Google’s problem.

Advice to all public figures and organizations seeking to avoid criticism via Google advertising: Claim trademark in your name! (So? Is Google keyword advertising the only channel by which people can broadcast their opinions about public issues? — ed. No, but it’s an important enough medium that one of the most dominant companies in the world is built on it!)

One more thing: MoveOn left the door open, perhaps not intentionally, to slamming it right back closed again. Here’s what it told Wired:

“When we became aware of all the controversy around it, we opted out,” Lindenauer says. “Of course we support free speech, and the right of anyone to parody us, but what we do care about is protecting our members — we don’t want anyone using our name or logo in a way that could harm our members and mission.”

That’s a “yeah but” you can drive a Hummer through. Let’s see what happens down the road. We won’t be moving on so fast on this.

Best of 2007: Ideological purity

First posted on January 24, 2007.

All Hail Chairman Google

Yahoo News:

Chinese Communist Party chief Hu Jintao has vowed to “purify” the Internet, state media reported on Wednesday, describing a top-level meeting that discussed ways to master the countrys sprawling, unruly online population. . . .

Hu, a strait-laced communist with little sympathy for cultural relaxation, did not directly mention censorship.

But he made it clear that the Communist Party was looking to ensure it keeps control of China’s Internet users, often more interested in salacious pictures, bloodthirsty games and political scandal than Marxist lessons.

10 Years of Bloggy Ok-Ness


Don’t kid yourself: This could be a very big deal.

China can’t be competitive as anything other than a source of slave labor if it shuts down the Internet, Cuba-style — and it wants to be. On the other hand, its leaders do not want to cede political control along with economic control, which history has proved to be a very difficult task. Read More…

YouTube, the DMCA and politics — again

Slashdot reports:

It appears that CBS and Fox have submitted DMCA takedown notices to YouTube for videos from the McCain campaign. The campaign is now complaining about YouTube’s DMCA policy making it too easy for copyright holders to remove fair-use videos. I hope they pursue this by addressing flaws in the DMCA.

The McCain complaint is based on the fact that YouTube will wait at least 10 and up to 14 days before re-posting a video, upon the posting party’s compliance with the counter-notice procedure under the DMCA — even where, as appears to be the case here, the DMCA complaints are not meritorious.  That’s a long period for a political campaign to wait between now and election day, if in fact you believe political videos on YouTube actually matter.  The campaign is asking YouTube to establish special procedures for videos posted by official political campaigns.

Maybe.  This would be a more compelling point if it appeared that the DMCA were not being utilized evenhandedly by these MSM outfits.  Is there any evidence to that effect, such as outtakes from CBS and Fox (yeah, after all — we’re talking about Fox here) utilized by Obama people and not resulting in DMCA notices?

We’d figured YouTube would get back to them in, like, 10-14 days.  But we were wrong — it didn’t take 10-14 days!  YouTube slapped down the McCain campaign’s request almost immediately!  Declan McCullough:

YouTube has rejected a request from John McCain’s presidential campaign for a legal review of political videos that are the subject of deletion requests.

The Google-owned company said Tuesday evening in a response to McCain’s organization that it could not give campaigns special treatment and that it was “not in a position to verify” whether infringement complaints made under the Digital Millennium Copyright Act were legitimate or not.

“Not in a position to verify”?  Lame.  Here’s coverage from TechDirt, too (via Andie).

UPDATE:  Glenn Reynolds:  “But it’s also amusing to see McCain suddenly notice the dangers of politically-throttled speech.”  Yes, true!

UPDATE:  A good analysis of the trademark issues from Paul Alan Levy, via Overlawyered.

LIKELIHOOD OF CONFUSION® in 2006: “Is Google a utility?”

I posted this in August, 2006. I don’t think the question has been answered yet:


We wrote about the Kinderstart lawsuit against Google, claiming an unfairly depressed Google search rank, last March. There have been further, very interesting, developments, exemplified by this this colloquy reported by Dawn Kawamoto:

David Kramer, a Wilson Sonsini attorney also representing Google, said the search giant’s PageRank system is subjective, using a combination of reviews into whether a Web site is adhering to its guidelines and is worth a user’s time to view.

“Google is constantly evaluating Web sites for standards and quality, which is entirely subjective,” Kramer said.

The judge probed Kramer on the topic of whether Google engages in misleading behavior, and whether it uses objective criteria to evaluate sites–rather than solely relying on subjective reasoning.

“What if, say, Google says it uses facts one through 10 to evaluate a site, but actually uses number 11 to decide its rank. Isn’t that misleading?” the judge asked.

Kramer, however, said Google readers understand that the site’s ranking system is subjective and based on Google’s opinion about whether a site is worth viewing.

A repeated theme in the article is that Google keeps urging that it has “no obligation” to “promote its rivals.” Which it certainly doesn’t seem as if it does. On the other hand, once a company becomes a sort of common carrier — I am pushing this here — is there really no point at which all purchasers of its services should be treated equally? (Very un-free-markety of me to suggest this, but I’m the conservative blogger who’s not a libertarian.) Avoiding a ruling that in any way characterizes Google search results as commodities is also evidently on the mind of the Google attorney who’s insisting, despite the obvious risk of doing so, that Google results, in some cases, are subjective, not objective.

And what is that risk? Read More…

Right to Google search position?

Reuters reports:

A parental advice Internet site has sued Google Inc., charging it unfairly deprived the company of customers by downgrading its search-result ranking without reason or warning.

It’s possible that Google determined this company was gaming the system. It’s possible that someone at Google was punishing them for who knows what. But this doesn’t help:

KinderStart contends that once a company has been penalized, it is difficult to contact Google to regain good standing and impossible to get a report on whether or why the search leader took such action.

The technology area is unique in that a company can, on the strength of a great product like Google, rise out of nowhere to become a dominant power not only in its sector but across the entire economy. But the flip side is that while companies like Google and Microsoft can service millions, even billions of people, they can’t possibly keep up develop, nurture or respond to customer relationships the way brick and mortar companies must. Of course, Google could rebut this accusation; we have only one side talking here. We’ll be listening for the other.

UPDATE: A blogger (Blogger, that is) angle implicating more of the same — blowing off customers (yes, they’re customers even if they don’t pay) without explanation. Hat tip to Desert Light Journal.

UPDATE:  Some interesting skepticism.

The Google Library Project and the dog that didn’t bark — yet

Utah IP lawyer

Nicholas Wells, Wells IP Law

This post is the first by a new guest contributor, Utah IP lawyer Nicholas Wells, who also blogs on IP here.  I first blogged about the tiff between Google and “the writers” and the “the publishers” over the Google Books Library Project a long time ago, most recently in March of 2011.  It’s not really all over, actually, and Nicholas has generously offered to explain it all here.  Thank you, Nicholas!

It would have been fascinating to read the court opinion ending the lawsuit by a group of major publishers against Google.  But we won’t get to do that.  After seven years, the parties settled this month on undisclosed terms.  The Google Library Project can continue to scan and make available books by the affected publishers.  The publishers can choose to “opt-out” for any books they don’t want included, but for all that remain in the Project, Google can let users browse up to 20% of the contents.  Those books will also be available for purchase through Google.

Both the publishers and Google called the settlement “pragmatic” and said that the settlement “reaffirms the rights of copyright holders.”


A separate class action suit led by the Author’s Guild is unaffected by this settlement.  That class action suit remains the more interesting part of this story.   (Indeed, James Grimmelmann, a professor of law at New York Law School, told the Chronicle of Higher Education that the settlement with the publishers was “one of the least-dramatic settlements I’ve ever seen.”)  Still, Publisher’s Weekly called Google’s settlement with publishers a “huge win” as far as orphaned works—those books where the copyright holder can’t be identified and so Google can’t ask anyone’s permission.  The “win” is for Google, not the authors of the orphaned works, because there is no one to “opt out” of the Google Library Project as to those works.  They will remain part of the project and will be made available to the public—with proceeds from ad revenue and book sales going to Google, at least for the time being.

Still, that begs the question that everyone was asking when Google started the Google Library Project back in 2005:  Can Google re-interpret copyright law by doing whatever they choose and then letting the courts or the affected parties fight about it after the fact?  The obvious legal answer at the time was a resounding “No.” Read More…

Chocolate Ice Cream with Chocolate Syrup

How else to describe a post (this one) that combines two of our favorite obsessions — Google and fair use?

Business Week online reports that Google’s announced plan to to scan millions of the world’s books and make them searchable online is, not surprisingly, a little scary to some people. No, not the people who are afraid of free access to books and information. Rather, the people who are “all about” that very thing — but who are a little worried about “free” in the economic, not the freedom, sense of the word.

According to Business Week, “In a May 20 letter, the Association of American University Presses (AAUP) blasts Google’s so-called Print for Libraries program for posing a risk of “systematic infringement of copyright on a massive scale.” Evidently, according to the report, a number of publishers have also expressed some concern. “We don’t see how a for-profit company compiling this would be considered fair use,” a spokesman for the Association of American Publishers — the principal trade organization of the book publishing industry — told Business Week.

Well. But it would depend in no small part on how much of a work is being made available on line (as the article notes), as well as on the development of third-party liability for hacking that leads to unauthorized access of infringing material beyond what Google anticipates making searchable, or accessible from search results.

It’s getting to the point where we’re taking the Googlization of the known world for granted. We shouldn’t. It’s an incredible phenomenon.

Google, Geico Good to Go

Google and Geico have settled.