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LAW PUNDIT Friday, September 30, 2005 9/30/2005 11:50:00 PM [Home]
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No Patents on Software in the EU - A Judge Explains
In the England and Wales High Court (Patents Court) Decisions, we have found a readable opinion by Deputy Judge Mr Peter Prescott (sitting as a Deputy Judge) IN THe MATTER OF Patent Applications GB 0226884.3 and 0419317.3 by CFPH L.L.C., [2005] EWHC 1589 (Pat) in which Judge Prescott writes about "what is an invention" in the EU and about the prohibition of software patents in Article 52 of the European Patent Convention (EPC). We have omitted the footnotes and our excerpted text of the opinion is as follows:
"The reason why computer programs, as such, are not allowed to be patented is quite different. Although it is hotly disputed now by some special interest groups, the truth is, or ought to be, well known. It is because at the time the EPC was under consideration it was felt in the computer industry that such patents were not really needed, were too cumbersome (it was felt that searching the prior art would be a big problem), and would do more harm than good. I shall not go into details here but it is worth noting that the software industry in America developed at an astonishing pace when no patent protection was available. Copyright law protects computer programs against copying. A patent on a computer program would stop others from using it even though there had been no copying at all. So there would have to be infringement searches. Furthermore you cannot have a sensible patent system unless there exists a proper body of prior art that can be searched. Not only are most computer programs supplied in binary form – unintelligible to humans – but most of the time it is actually illegal to convert them into human-readable form. A patent system where it is illegal to search most of the prior art is something of an absurdity.
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Recently, the scope of this exclusion has been under re-consideration by the European Union. The Commission wanted to harmonise the law by defining the line between inventions that are properly patentable and mere computer programs. Although not strictly relevant to what I have to decide, I must admit I watched developments with some anxiety. Had the proposal succeeded it would have entrenched a test involving 'technical contribution' and 'technical features' that I suspect is too vague to be workable at the margin. On 6 July 2005 the proposed directive was defeated in the European Parliament and it will not be re-introduced."
Prescott has an equally cogent statement on the exclusion of patents for business methods:
"Now let us consider business methods. What is the policy reason that lies behind the exclusion of those? It is because, historically, patents for business methods were never granted yet business innovation went on very well without the benefit of that protection and without the red tape. Businessmen have been every bit as inventive as engineers. It was probably business administrators (and not poets or priests) who made the greatest "invention" of all time: phonetic writing. Consider as further examples: the invention of money; of double-entry bookkeeping; of negotiable bills of exchange; of joint-stock companies; of insurance policies; of clearance banking; of business name franchising; of the supermarket; and so on. None of these needed patent protection to get started. A patent system is always a burden on trade, commerce and industry: if only because of the "red tape" effect. The only question is whether the benefits outweigh the burdens. That has to be demonstrated by those who assert it is so, and in any case the decision is for the legislature. In this country and in Europe the legislature has not yet been persuaded."
Everyone interested in intellectual property law should read this beautifully written decision.
Via Out-Law.com (hat tip).
See also European Patent Convention (EPC)
nipc IP/it Update (nipcLaw Blog) - at that site Oracle, Software Patents Revisited
Crossposted to EUPundit.
Technorati Tags law, patents, software, computer programs, EU, European Union, business methods, High Court, England and Wales.
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Permalink : Andis Kaulins : 9/30/2005 11:50:00 PM
No Patents on Software in the EU - A Judge Explains
In the England and Wales High Court (Patents Court) Decisions, we have found a readable opinion by Deputy Judge Mr Peter Prescott (sitting as a Deputy Judge) IN THe MATTER OF Patent Applications GB 0226884.3 and 0419317.3 by CFPH L.L.C., [2005] EWHC 1589 (Pat) in which Judge Prescott writes about "what is an invention" in the EU and about the prohibition of software patents in Article 52 of the European Patent Convention (EPC). We have omitted the footnotes and our excerpted text of the opinion is as follows:
"The reason why computer programs, as such, are not allowed to be patented is quite different. Although it is hotly disputed now by some special interest groups, the truth is, or ought to be, well known. It is because at the time the EPC was under consideration it was felt in the computer industry that such patents were not really needed, were too cumbersome (it was felt that searching the prior art would be a big problem), and would do more harm than good. I shall not go into details here but it is worth noting that the software industry in America developed at an astonishing pace when no patent protection was available. Copyright law protects computer programs against copying. A patent on a computer program would stop others from using it even though there had been no copying at all. So there would have to be infringement searches. Furthermore you cannot have a sensible patent system unless there exists a proper body of prior art that can be searched. Not only are most computer programs supplied in binary form – unintelligible to humans – but most of the time it is actually illegal to convert them into human-readable form. A patent system where it is illegal to search most of the prior art is something of an absurdity.
...
Recently, the scope of this exclusion has been under re-consideration by the European Union. The Commission wanted to harmonise the law by defining the line between inventions that are properly patentable and mere computer programs. Although not strictly relevant to what I have to decide, I must admit I watched developments with some anxiety. Had the proposal succeeded it would have entrenched a test involving 'technical contribution' and 'technical features' that I suspect is too vague to be workable at the margin. On 6 July 2005 the proposed directive was defeated in the European Parliament and it will not be re-introduced."
Prescott has an equally cogent statement on the exclusion of patents for business methods:
"Now let us consider business methods. What is the policy reason that lies behind the exclusion of those? It is because, historically, patents for business methods were never granted yet business innovation went on very well without the benefit of that protection and without the red tape. Businessmen have been every bit as inventive as engineers. It was probably business administrators (and not poets or priests) who made the greatest "invention" of all time: phonetic writing. Consider as further examples: the invention of money; of double-entry bookkeeping; of negotiable bills of exchange; of joint-stock companies; of insurance policies; of clearance banking; of business name franchising; of the supermarket; and so on. None of these needed patent protection to get started. A patent system is always a burden on trade, commerce and industry: if only because of the "red tape" effect. The only question is whether the benefits outweigh the burdens. That has to be demonstrated by those who assert it is so, and in any case the decision is for the legislature. In this country and in Europe the legislature has not yet been persuaded."
Everyone interested in intellectual property law should read this beautifully written decision.
Via Out-Law.com (hat tip).
See also European Patent Convention (EPC)
nipc IP/it Update (nipcLaw Blog) - at that site Oracle, Software Patents Revisited
Crossposted to EUPundit.
Technorati Tags law, patents, software, computer programs, EU, European Union, business methods, High Court, England and Wales.
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Permalink : Andis Kaulins : 9/30/2005 11:50:00 PM
LAW PUNDIT Thursday, September 29, 2005 9/29/2005 10:50:00 PM [Home]
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Bloggers re Author's Guild v. Google Print
We have been scanning the blogs for additional opinions on the Author's Guild lawsuit against Google Print (GooglePrint), some of which we have already referenced in previous postings on this topic here and here. These are now the blog additions with some interesting new legal aspects:
Balkinization on Author's Guild v. Google Print
Things do not look good for the Author's Guild when people like Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment and also Director of The Information Society Project at Yale Law School, write that the lawsuit "is just plain silly". Balkin comments in his September 28, 2005 posting titled Search Me. Please.:
"As an author who is always trying to get people interested in my books, including (Warning: shameless self promotion ahead) my first book, my second book, my third book, my fourth book, my fifth book, and my sixth book, I have to agree with Tim O'Reilly's op-ed: the Author's Guild suit against Google is counterproductive and just plain silly."
Go to Balkinization to read more.
Legal Theory Blog
Lawrence Solum hits the nail on the head when he writes as follows about the Author's Guild filing the complaint as a class action:
"Putting on my proceduralist hat for a moment, there is a very substantial problem with class certification. The complaint defines the class as follows:
The Law Pundit also has one book in the University of Michigan Library. We thus join Solum in his arguments and find that a class certification in this case is inappropriate.
Media Law Prof Blog
Christine A. Corcos refers to an article by Findlaw's Julie Hilden titled "Authors Sue Google Over Its "Print for Libraries" Project: Will the Suit Succeed? Should It? And Why, As An Author, I'm Opting Out of Any Class Action". Hilden discusses the class certification issue in practical detail.
Lenz Blog
Karl-Friedrich Lenz sees reproduction per se as the main legal issue, as he posts here, here and here.
There is no issue that Google "reproduces" copyrighted material in a database. We disagree here with Lenz on this point, however, and think that the issue is not reproduction per se, but rather whether the use of that reproduction is transformative, which, on the other hand, is permissible fair use.
Open Access News Blog and the L.A. Times
Via the Open Access News Blog.
Xeni Jardin in his September 25, 2005 article in the L.A. Times, You authors are saps to resist Googling, writes regarding the Author's Guild lawsuit:
"If the paranoid myopia that drives such thinking penetrates too deeply into the law, search engines will eventually shut down. What's the difference, after all, between a copyrighted Web page and a copyrighted book? What if Internet entrepreneurs could sue Google for indexing their websites? What if the law required search engines to get clearance for every Web page? Even a company as large and well-funded as Google couldn't pull that off because what's on the Internet, and who owns that content, changes constantly.
As one author told me, "fear of obscurity, not digital indexing, is what keeps most authors awake at night."
Technology that makes it easier to find, buy and read books is good for everyone — even the authors suing Google."
Copyfight and the E-LawLibrary
Copyfight and E-LawLibrary have noted the Patry reversal on the case, which we mentioned previously.
Joe Gratz and Seth Finkelstein
JoeGratz.net covers the issue of copyright infringement and statutory damages as it potentially applies to Google, referring to Seth Finkelstein's InfoThought, which comments on the same issue via Ed Felten's Freedom to Tinker.
Technorati Tags:
class certification, federal rules, civil procedure, due process, fifth amendment, transformative, transformative use, complementary copying, substitutional copying, digital property, intellectual property, copyright, copyrights, law, copyright law, publishing, fair use, authors, Author's Guild, Google, Google Print, GooglePrint, Harvard, Stanford, legal, Michigan, Oxford, infringement, copyright infringement, class action, class actions, library, libraries, digitization, search engines, information storage, information retrieval, books.
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Permalink : Andis Kaulins : 9/29/2005 10:50:00 PM
Bloggers re Author's Guild v. Google Print
We have been scanning the blogs for additional opinions on the Author's Guild lawsuit against Google Print (GooglePrint), some of which we have already referenced in previous postings on this topic here and here. These are now the blog additions with some interesting new legal aspects:
Balkinization on Author's Guild v. Google Print
Things do not look good for the Author's Guild when people like Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment and also Director of The Information Society Project at Yale Law School, write that the lawsuit "is just plain silly". Balkin comments in his September 28, 2005 posting titled Search Me. Please.:
"As an author who is always trying to get people interested in my books, including (Warning: shameless self promotion ahead) my first book, my second book, my third book, my fourth book, my fifth book, and my sixth book, I have to agree with Tim O'Reilly's op-ed: the Author's Guild suit against Google is counterproductive and just plain silly."
Go to Balkinization to read more.
Legal Theory Blog
Lawrence Solum hits the nail on the head when he writes as follows about the Author's Guild filing the complaint as a class action:
"Putting on my proceduralist hat for a moment, there is a very substantial problem with class certification. The complaint defines the class as follows:
'The Class is initially defined as all persons or entities that hold the copyright to a literary work that is contained in the library of the University of Michigan.'That class includes many authors who would be injured if the plaintiffs were to prevail--including, for example, me! I am member of the plaintiff class--owning the copyright to at least three or four dozen works in the University of Michican library. I have a very strong objective interest in Google Print succeeding--because as a scholar, I benefit from the dissemination of my works and because reaching agreement with Google will be costly to me and Google, essentially killing the project. A substantial intraclass conflict of interest destroys "adequacy of representation," making class certification inappropriate, both under the federal rules of civil procedure and under the due process clause of the fifth amendment of the U.S. Constitution. Opt out is not a solution--because that would create an affirmative duty to monitor the litigation and opt out (in order to preserve a constitutional right), and the Supreme Court has made it clear that no such duty should be created in a number of cases, including Phillips Petroleum v. Shutts. Pro-bono representation for intervenors opposing certification, anyone?"
The Law Pundit also has one book in the University of Michigan Library. We thus join Solum in his arguments and find that a class certification in this case is inappropriate.
Media Law Prof Blog
Christine A. Corcos refers to an article by Findlaw's Julie Hilden titled "Authors Sue Google Over Its "Print for Libraries" Project: Will the Suit Succeed? Should It? And Why, As An Author, I'm Opting Out of Any Class Action". Hilden discusses the class certification issue in practical detail.
Lenz Blog
Karl-Friedrich Lenz sees reproduction per se as the main legal issue, as he posts here, here and here.
There is no issue that Google "reproduces" copyrighted material in a database. We disagree here with Lenz on this point, however, and think that the issue is not reproduction per se, but rather whether the use of that reproduction is transformative, which, on the other hand, is permissible fair use.
Open Access News Blog and the L.A. Times
Via the Open Access News Blog.
Xeni Jardin in his September 25, 2005 article in the L.A. Times, You authors are saps to resist Googling, writes regarding the Author's Guild lawsuit:
"If the paranoid myopia that drives such thinking penetrates too deeply into the law, search engines will eventually shut down. What's the difference, after all, between a copyrighted Web page and a copyrighted book? What if Internet entrepreneurs could sue Google for indexing their websites? What if the law required search engines to get clearance for every Web page? Even a company as large and well-funded as Google couldn't pull that off because what's on the Internet, and who owns that content, changes constantly.
As one author told me, "fear of obscurity, not digital indexing, is what keeps most authors awake at night."
Technology that makes it easier to find, buy and read books is good for everyone — even the authors suing Google."
Copyfight and the E-LawLibrary
Copyfight and E-LawLibrary have noted the Patry reversal on the case, which we mentioned previously.
Joe Gratz and Seth Finkelstein
JoeGratz.net covers the issue of copyright infringement and statutory damages as it potentially applies to Google, referring to Seth Finkelstein's InfoThought, which comments on the same issue via Ed Felten's Freedom to Tinker.
Technorati Tags:
class certification, federal rules, civil procedure, due process, fifth amendment, transformative, transformative use, complementary copying, substitutional copying, digital property, intellectual property, copyright, copyrights, law, copyright law, publishing, fair use, authors, Author's Guild, Google, Google Print, GooglePrint, Harvard, Stanford, legal, Michigan, Oxford, infringement, copyright infringement, class action, class actions, library, libraries, digitization, search engines, information storage, information retrieval, books.
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Permalink : Andis Kaulins : 9/29/2005 10:50:00 PM
LAW PUNDIT 9/29/2005 10:20:00 PM [Home]
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Law Schools and Law Firms: The "Millennials" Have Arrived
At the Law School Academic Support Blog we are informed that the "Millennials" have arrived at law schools and law firms. This is a good read on the new post-1981 youth generation.
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Permalink : Andis Kaulins : 9/29/2005 10:20:00 PM
Law Schools and Law Firms: The "Millennials" Have Arrived
At the Law School Academic Support Blog we are informed that the "Millennials" have arrived at law schools and law firms. This is a good read on the new post-1981 youth generation.
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Permalink : Andis Kaulins : 9/29/2005 10:20:00 PM
LAW PUNDIT 9/29/2005 10:10:00 PM [Home]
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Roberts Confirmed as Chief Justice of the US Supreme Court by the US Senate 78-22
As reported by Reuters, the US Senate has just confirmed John Roberts as the 17th Chief Justice of the United States Supreme Court.
Bravo to the Senate and also to the 22 Democrats and 1 independent who voted for Roberts, who thereby joined all 55 Senate Republicans who voted unanimously for confirmation.
Perhaps this vote will foster less partisanship in US politics and help to solidify the people's necessary feeling that they are Americans first and only political partisans second.
This has already been commented at the Legal Theory Blog (Lawrence Solum).
We find Solum's analysis of the political side of the confirmation issue to be a bit too pessimistic. We think that many US Senators decided that the man was competent for the job.
We might add here as an aside that we also found two other recent postings at Solum's blog which we found to be of interest,
one on copynorms, which Solum calls:
"one of the most important topics in contemporary IP scholarship"
and the other on
theories about judicial holdings
where Solum writes:
"[T]here are different theories about holdings, realist and formalist. What is the debate between these two theories about?"
Read his posting to find out.
Permalink : Andis Kaulins : 9/29/2005 10:10:00 PM
Roberts Confirmed as Chief Justice of the US Supreme Court by the US Senate 78-22
As reported by Reuters, the US Senate has just confirmed John Roberts as the 17th Chief Justice of the United States Supreme Court.
Bravo to the Senate and also to the 22 Democrats and 1 independent who voted for Roberts, who thereby joined all 55 Senate Republicans who voted unanimously for confirmation.
Perhaps this vote will foster less partisanship in US politics and help to solidify the people's necessary feeling that they are Americans first and only political partisans second.
This has already been commented at the Legal Theory Blog (Lawrence Solum).
We find Solum's analysis of the political side of the confirmation issue to be a bit too pessimistic. We think that many US Senators decided that the man was competent for the job.
We might add here as an aside that we also found two other recent postings at Solum's blog which we found to be of interest,
one on copynorms, which Solum calls:
"one of the most important topics in contemporary IP scholarship"
and the other on
theories about judicial holdings
where Solum writes:
"[T]here are different theories about holdings, realist and formalist. What is the debate between these two theories about?"
Read his posting to find out.
Permalink : Andis Kaulins : 9/29/2005 10:10:00 PM
LAW PUNDIT Wednesday, September 28, 2005 9/28/2005 05:37:00 PM [Home]
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Transformative Use Justifies GooglePrint Scans of Entire Books as Fair Use
As is clear from our previous posting, the lawsuit by Author's Guild against Google turns - in our opinion - on the issue of non-infringing "transformative use" (something that Judge Posner (see further below), e.g. calls "complementary copying"). This is opposed to infringing "superseding use" (which e.g. Judge Posner calls "substitutional use").
The transformative use to which GooglePrint (viz. Google Print) converts its scans of library holdings - in our opinion - justifies scans of entire books in libraries as fair use. We think that is the major legal issue in this case.
We find that James DeLong (short bio) at IPcentral has framed that issue best in compact form as follows in his September 21, 2005 posting:
Google's response to the Authors Guild lawsuit is:
Applying the logic of the reasoning used by Judge Thomas G. Nelson of the Ninth Circuit Appeals Court for the ruling in Kelly v. Arriba Soft Corporation, the provision of such "snippets of text" by search engines is analogous to the provision of "thumbnails of graphics", which was found to be fair use in Kelly v. Arriba.
Kelly v. Arriba also found that:
[A]lthough Arriba did copy each of Kelly’s images as a whole, it was reasonable to do so in light of Arriba’s use of the images. It was necessary for Arriba to copy the entire image to allow users to recognize the image and decide whether to pursue more information about the image or the originating web site. If Arriba only copied part of the image, it would be more difficult to identify it, thereby reducing the usefulness of the visual search engine.
Similarly, of course, GooglePrint could not provide accurate, truly informational snippets of text as search results if they did not scan books in entirety. Hence, in our view, the permissible transformative use engaged in by GooglePrint also permits the copying (scanning) of entire books as "reasonable" "in light of [their] use of the [snippets].
The fact that Google permits copyright owners to opt-out of the library scanning and listing project is irrelevant to the direct copyright issue, since transformative use requires no permission from the copyright owner.
However, the opt-out alternative for copyright owners is relevant indirectly to the fair use copyright issue since it demonstrates "good faith" on the part of Google, which is not trying to infringe copyright material but rather to use already published material in a permissible transformative manner.
In our view, the Author's Guild has little chance to win this lawsuit, but then again, the judges decide. That's their job.
Update, 28 September 2005
Useful Websites on the Fair Use Issue
Stanford Copyright & Fair Use
Berkeley Copyright and Intellectual Property Rights
Cornell Legal Information Institute
Case Law
New York Times Co. v. Tasini, 533 U.S. 483 (2001), affirming 206 F.3d 161 (2d Circ. 2000).(inclusion of individual freelance copyrighted works in databases which permit complete access to the full text of such copyrighted articles). The copying in GooglePrint is to be clearly distinguished from the inclusion of copyrighted works in databases which then offer the copyrighted works in whole to the public, which is quite clearly a copyright infringement. Tasini clearly decided the issue that electronic RE-PUBLICATION of copyrighted works is a right which belongs to the copyright-owning authors. GooglePrint does not however involve electronic republication of such works. The sole issue in GooglePrint is whether Google can scan published copyrighted works for use in information search through "text snippets". That is an entirely different legal question.
Harper & Row, Publishers, Inc., et al. v. Nation Enterprises et al., 471 U.S. 539; 105 S. Ct. 2218; 85 L. Ed.2d 588; 53 U.S.L.W. 4562 (1885) (use of excerpts totalling 13% of an unpublished manuscript). The case is found at FindLaw and BitLaw.
Ty, Inc. v. Publications International Ltd., 292 F.2d 512 (7th Cir. 2002). Probably the best treatment by a judge of the fair use exception is found in Judge Posner's opinion in this case where he writes about book review citations from books as being "permissible" fair use, inter alia because they "serve the reading public as a useful guide" . We would find such book review citations as comparable to Google's "snippets" as "guides" for the public. Posner writes:
"The defense of fair use, originally judge-made, now codified, plays an essential role in copyright law. Without it, any copying of copyrighted material would be a copyright infringement. A book reviewer could not quote from the book he was reviewing without a license from the publisher. Quite apart from the impairment of freedom of expression that would result from giving a copyright holder control over public criticism of his work, to deem such quotation an infringement would greatly reduce the credibility of book reviews, to the detriment of copyright owners as a group, though not to the owners of copyright on the worst books. Book reviews would no longer serve the reading public as a useful guide to which books to buy. Book reviews that quote from ("copy") the books being reviewed increase the demand for copyrighted works; to deem such copying infringement would therefore be perverse, and so the fair-use doctrine permits such copying. Desnick v. American Broadcasting Companies, Inc., 44 F.3d 1345, 1351 (7th Cir. 1995) (dictum); William M. Landes, "Copyright, Borrowed Images, and Appropriation Art: An Economic Approach," 9 Geo. Mason L. Rev. 1, 10 (2000); Lawrence Lessig, "The Law of the Horse: What Cyberlaw Might Teach," 113 Harv. L. Rev. 501, 528 (1999). On the other hand, were a book reviewer to quote the entire book in his review, or so much of the book as to make the review a substitute for the book itself, he would be cutting into the publisher's market, and the defense of fair use would fail. Harper & Row, Publishers, Inc. v. Nation Enterprises, 723 F.2d 195, 215 (2d Cir. 1983) (dissenting opinion), rev'd, 471 U.S. 539 (1985); see Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562 (1985); Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1118 (9th Cir. 2000); Consumers Union of United States, Inc. v. General Signal Corp., 724 F.2d 1044, 1051 (2d Cir. 1983).
Generalizing from this example in economic terminology that has become orthodox in fair-use case law, we may say that copying that is complementary to the copyrighted work (in the sense that nails are complements of hammers) is fair use, but copying that is a substitute for the copyrighted work (in the sense that nails are substitutes for pegs or screws), or for derivative works from the copyrighted work, see 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright sec. 13.05[B][1], p. 13-193 (2002), is not fair use. On Davis v. The Gap, Inc., 246 F.3d 152, 175-76 (2d Cir. 2001); Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1277 (11th Cir. 2001) (concurring opinion); Wendy J. Gordon, "Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors," 82 Colum. L. Rev. 1600, 1643 n. 237 (1982); see Consumers Union of United States, Inc. v. General Signal Corp., supra, 724 F.2d at 1051. If the price of nails fell, the demand for hammers would rise but the demand for pegs would fall. The hammer manufacturer wants there to be an abundant supply of cheap nails, and likewise publishers want their books reviewed and wouldn't want reviews inhibited and degraded by a rule requiring the reviewer to obtain a copyright license from the publisher if he wanted to quote from the book. So, in the absence of a fair-use doctrine, most publishers would disclaim control over the contents of reviews. The doctrine makes such disclaimers unnecessary. It thus economizes on transaction costs.
The distinction between complementary and substitutional copying (sometimes--though as it seems to us, confusingly--said to be between "transformative" and "superseding" copies, see, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)) is illustrated not only by the difference between quotations from a book in a book review and the book itself, Marion B. Stewart, "Calculating Economic Damages in Intellectual Property Disputes: The Role of Market Definition," 77 J. Patent & Trademark Office Society 321, 332 (1995), but also by the difference between parody (fair use) and burlesque (often not fair use). A parody, which is a form of criticism (good-natured or otherwise), is not intended as a substitute for the work parodied. But it must quote enough of that work to make the parody recognizable as such, and that amount of quotation is deemed fair use. Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at 579, 580-81 and n. 14, 588; Suntrust Bank v. Houghton Mifflin Co., supra, 268 F.3d at 1271; Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 114 (2d Cir. 1998); Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1400 (9th Cir. 1997); 4 Nimmer & Nimmer, supra, sec. 13.05[C], pp. 13-203 to 13-218....
Book reviews and parodies are merely examples of types of work that quote or otherwise copy from copyrighted works yet constitute fair use because they are complements of (though sometimes negative complements, as in the case of a devastating book review) rather than substitutes for the copyrighted original. The commonest type is simply a quotation from a copyrighted work in a book or article on the same or a related subject. The complementary effect may be quite weak, but the quotation is unlikely to reduce the demand for the copyrighted work; nor could the copyright owner command a license fee commensurate with the costs of transacting with the copier. Such copying is therefore fair use."
Concerning this case, see Ivan Hoffman and the Beanie Babies Collector's Guide.
Hoffman writes regarding the fair use cases:
"Thus, clearly there is a conflict between the rights of the copyright owner and the rights of the user of the material, as there is in any fair use case."
Posner writes in this regard in a later opinion in the case of Chicago Board of Education v. Substance, Inc. (7th Cir. 2003) as follows:
"So where to draw the line? The question cannot be answered precisely. The fair use defense defies codification. As we said in Ty, the four factors that Congress listed when it wrote a fair use defense (a judicial creation) into the Copyright Act in 1976 are not exhaustive and do not constitute an algorithm that enables decisions to be ground out mechanically. Ty, Inc. v. Publications Int'l Ltd., supra, 292 F.3d at 522; see also Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at 577-78; Harper & Row, Publishers, Inc. v. Nation Enterprises, supra, 471 U.S. at 560. The general standard, however, is clear enough: the fair use copier must copy no more than is reasonably necessary (not strictly necessary—room must be allowed for judgment, and judges must not police criticism with a heavy hand) to enable him to pursue an aim that the law recognizes as proper, in this case the aim of criticizing the copyrighted work effectively. Ty, Inc. v. Publications Int'l Ltd., supra, 292 F.3d at 521; Kelly v. Arriba Soft Corp., 336 F.3d 811, 820-21 (9th Cir. 2003); Sundeman v. Seajay Society, Inc., supra, 142 F.3d at 206.
The burden of proof is on the copier because fair use is an affirmative defense, Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at 590; Harper & Row Publishers, Inc. v. Nation Enterprises, supra, 471 U.S. at 561; Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc., 342 F.3d 191, 197 (3d Cir. 2003)...."
A closing comment: if the judges find against Google Print, they basically have to invalidate the entire process of search engine servers storing masses of online copyrighted material, the corpus of which they access in order to provide useful search results in "snippet" form. A decision for the Author's Guild would simply lead to internet search chaos, and that is not the role of the courts. They have to apply the law sensibly. Hence, we think Google Print will win.
Technorati Tags:
transformative, transformative use, complementary copying, substitutional copying, digital property, intellectual property, copyright, copyrights, law, copyright law, publishing, fair use, authors, Author's Guild, Google, Google Print, GooglePrint, Harvard, Stanford, legal, Michigan, Oxford, infringement, copyright infringement, class action, class actions, library, libraries, digitization, search engines, information storage, information retrieval, books.
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Permalink : Andis Kaulins : 9/28/2005 05:37:00 PM
Transformative Use Justifies GooglePrint Scans of Entire Books as Fair Use
As is clear from our previous posting, the lawsuit by Author's Guild against Google turns - in our opinion - on the issue of non-infringing "transformative use" (something that Judge Posner (see further below), e.g. calls "complementary copying"). This is opposed to infringing "superseding use" (which e.g. Judge Posner calls "substitutional use").
The transformative use to which GooglePrint (viz. Google Print) converts its scans of library holdings - in our opinion - justifies scans of entire books in libraries as fair use. We think that is the major legal issue in this case.
We find that James DeLong (short bio) at IPcentral has framed that issue best in compact form as follows in his September 21, 2005 posting:
Google's response to the Authors Guild lawsuit is:
We regret that this group chose to sue us over a program that will make millions of books more discoverable to the world -- especially since any copyright holder can exclude their books from the program. What’s more, many of Google Print’s chief beneficiaries will be authors whose backlist, out of print and lightly marketed new titles will be suggested to countless readers who wouldn’t have found them otherwise.It adds:
Let's be clear: Google doesn’t show even a single page to users who find copyrighted books through this program (unless the copyright holder gives us permission to show more). At most we show only a brief snippet of text where their search term appears, along with basic bibliographic information and several links to online booksellers and libraries.Under the last paragraph, the issues are fascinating. To show only the limited info described by Google would, IMHO, pretty clearly be a fair use. So the authors must be objecting to the fact that an entire book is being copied without permission, even if it is then hidden in an electronic vault. But what is the objection, if only snippets are shown? Is it a fear of Napsterization -- that once the digital copy is made it could escape into the world? Or is it simply a naked assertion of right -- "copyright law says no copying, so you must pay me to do it, even if it would actually be in my interest to have snippets made available."
Applying the logic of the reasoning used by Judge Thomas G. Nelson of the Ninth Circuit Appeals Court for the ruling in Kelly v. Arriba Soft Corporation, the provision of such "snippets of text" by search engines is analogous to the provision of "thumbnails of graphics", which was found to be fair use in Kelly v. Arriba.
Kelly v. Arriba also found that:
[A]lthough Arriba did copy each of Kelly’s images as a whole, it was reasonable to do so in light of Arriba’s use of the images. It was necessary for Arriba to copy the entire image to allow users to recognize the image and decide whether to pursue more information about the image or the originating web site. If Arriba only copied part of the image, it would be more difficult to identify it, thereby reducing the usefulness of the visual search engine.
Similarly, of course, GooglePrint could not provide accurate, truly informational snippets of text as search results if they did not scan books in entirety. Hence, in our view, the permissible transformative use engaged in by GooglePrint also permits the copying (scanning) of entire books as "reasonable" "in light of [their] use of the [snippets].
The fact that Google permits copyright owners to opt-out of the library scanning and listing project is irrelevant to the direct copyright issue, since transformative use requires no permission from the copyright owner.
However, the opt-out alternative for copyright owners is relevant indirectly to the fair use copyright issue since it demonstrates "good faith" on the part of Google, which is not trying to infringe copyright material but rather to use already published material in a permissible transformative manner.
In our view, the Author's Guild has little chance to win this lawsuit, but then again, the judges decide. That's their job.
Update, 28 September 2005
Useful Websites on the Fair Use Issue
Stanford Copyright & Fair Use
Berkeley Copyright and Intellectual Property Rights
Cornell Legal Information Institute
Case Law
New York Times Co. v. Tasini, 533 U.S. 483 (2001), affirming 206 F.3d 161 (2d Circ. 2000).(inclusion of individual freelance copyrighted works in databases which permit complete access to the full text of such copyrighted articles). The copying in GooglePrint is to be clearly distinguished from the inclusion of copyrighted works in databases which then offer the copyrighted works in whole to the public, which is quite clearly a copyright infringement. Tasini clearly decided the issue that electronic RE-PUBLICATION of copyrighted works is a right which belongs to the copyright-owning authors. GooglePrint does not however involve electronic republication of such works. The sole issue in GooglePrint is whether Google can scan published copyrighted works for use in information search through "text snippets". That is an entirely different legal question.
Harper & Row, Publishers, Inc., et al. v. Nation Enterprises et al., 471 U.S. 539; 105 S. Ct. 2218; 85 L. Ed.2d 588; 53 U.S.L.W. 4562 (1885) (use of excerpts totalling 13% of an unpublished manuscript). The case is found at FindLaw and BitLaw.
Ty, Inc. v. Publications International Ltd., 292 F.2d 512 (7th Cir. 2002). Probably the best treatment by a judge of the fair use exception is found in Judge Posner's opinion in this case where he writes about book review citations from books as being "permissible" fair use, inter alia because they "serve the reading public as a useful guide" . We would find such book review citations as comparable to Google's "snippets" as "guides" for the public. Posner writes:
"The defense of fair use, originally judge-made, now codified, plays an essential role in copyright law. Without it, any copying of copyrighted material would be a copyright infringement. A book reviewer could not quote from the book he was reviewing without a license from the publisher. Quite apart from the impairment of freedom of expression that would result from giving a copyright holder control over public criticism of his work, to deem such quotation an infringement would greatly reduce the credibility of book reviews, to the detriment of copyright owners as a group, though not to the owners of copyright on the worst books. Book reviews would no longer serve the reading public as a useful guide to which books to buy. Book reviews that quote from ("copy") the books being reviewed increase the demand for copyrighted works; to deem such copying infringement would therefore be perverse, and so the fair-use doctrine permits such copying. Desnick v. American Broadcasting Companies, Inc., 44 F.3d 1345, 1351 (7th Cir. 1995) (dictum); William M. Landes, "Copyright, Borrowed Images, and Appropriation Art: An Economic Approach," 9 Geo. Mason L. Rev. 1, 10 (2000); Lawrence Lessig, "The Law of the Horse: What Cyberlaw Might Teach," 113 Harv. L. Rev. 501, 528 (1999). On the other hand, were a book reviewer to quote the entire book in his review, or so much of the book as to make the review a substitute for the book itself, he would be cutting into the publisher's market, and the defense of fair use would fail. Harper & Row, Publishers, Inc. v. Nation Enterprises, 723 F.2d 195, 215 (2d Cir. 1983) (dissenting opinion), rev'd, 471 U.S. 539 (1985); see Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562 (1985); Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1118 (9th Cir. 2000); Consumers Union of United States, Inc. v. General Signal Corp., 724 F.2d 1044, 1051 (2d Cir. 1983).
Generalizing from this example in economic terminology that has become orthodox in fair-use case law, we may say that copying that is complementary to the copyrighted work (in the sense that nails are complements of hammers) is fair use, but copying that is a substitute for the copyrighted work (in the sense that nails are substitutes for pegs or screws), or for derivative works from the copyrighted work, see 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright sec. 13.05[B][1], p. 13-193 (2002), is not fair use. On Davis v. The Gap, Inc., 246 F.3d 152, 175-76 (2d Cir. 2001); Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1277 (11th Cir. 2001) (concurring opinion); Wendy J. Gordon, "Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors," 82 Colum. L. Rev. 1600, 1643 n. 237 (1982); see Consumers Union of United States, Inc. v. General Signal Corp., supra, 724 F.2d at 1051. If the price of nails fell, the demand for hammers would rise but the demand for pegs would fall. The hammer manufacturer wants there to be an abundant supply of cheap nails, and likewise publishers want their books reviewed and wouldn't want reviews inhibited and degraded by a rule requiring the reviewer to obtain a copyright license from the publisher if he wanted to quote from the book. So, in the absence of a fair-use doctrine, most publishers would disclaim control over the contents of reviews. The doctrine makes such disclaimers unnecessary. It thus economizes on transaction costs.
The distinction between complementary and substitutional copying (sometimes--though as it seems to us, confusingly--said to be between "transformative" and "superseding" copies, see, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)) is illustrated not only by the difference between quotations from a book in a book review and the book itself, Marion B. Stewart, "Calculating Economic Damages in Intellectual Property Disputes: The Role of Market Definition," 77 J. Patent & Trademark Office Society 321, 332 (1995), but also by the difference between parody (fair use) and burlesque (often not fair use). A parody, which is a form of criticism (good-natured or otherwise), is not intended as a substitute for the work parodied. But it must quote enough of that work to make the parody recognizable as such, and that amount of quotation is deemed fair use. Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at 579, 580-81 and n. 14, 588; Suntrust Bank v. Houghton Mifflin Co., supra, 268 F.3d at 1271; Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 114 (2d Cir. 1998); Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1400 (9th Cir. 1997); 4 Nimmer & Nimmer, supra, sec. 13.05[C], pp. 13-203 to 13-218....
Book reviews and parodies are merely examples of types of work that quote or otherwise copy from copyrighted works yet constitute fair use because they are complements of (though sometimes negative complements, as in the case of a devastating book review) rather than substitutes for the copyrighted original. The commonest type is simply a quotation from a copyrighted work in a book or article on the same or a related subject. The complementary effect may be quite weak, but the quotation is unlikely to reduce the demand for the copyrighted work; nor could the copyright owner command a license fee commensurate with the costs of transacting with the copier. Such copying is therefore fair use."
Concerning this case, see Ivan Hoffman and the Beanie Babies Collector's Guide.
Hoffman writes regarding the fair use cases:
"Thus, clearly there is a conflict between the rights of the copyright owner and the rights of the user of the material, as there is in any fair use case."
Posner writes in this regard in a later opinion in the case of Chicago Board of Education v. Substance, Inc. (7th Cir. 2003) as follows:
"So where to draw the line? The question cannot be answered precisely. The fair use defense defies codification. As we said in Ty, the four factors that Congress listed when it wrote a fair use defense (a judicial creation) into the Copyright Act in 1976 are not exhaustive and do not constitute an algorithm that enables decisions to be ground out mechanically. Ty, Inc. v. Publications Int'l Ltd., supra, 292 F.3d at 522; see also Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at 577-78; Harper & Row, Publishers, Inc. v. Nation Enterprises, supra, 471 U.S. at 560. The general standard, however, is clear enough: the fair use copier must copy no more than is reasonably necessary (not strictly necessary—room must be allowed for judgment, and judges must not police criticism with a heavy hand) to enable him to pursue an aim that the law recognizes as proper, in this case the aim of criticizing the copyrighted work effectively. Ty, Inc. v. Publications Int'l Ltd., supra, 292 F.3d at 521; Kelly v. Arriba Soft Corp., 336 F.3d 811, 820-21 (9th Cir. 2003); Sundeman v. Seajay Society, Inc., supra, 142 F.3d at 206.
The burden of proof is on the copier because fair use is an affirmative defense, Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at 590; Harper & Row Publishers, Inc. v. Nation Enterprises, supra, 471 U.S. at 561; Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc., 342 F.3d 191, 197 (3d Cir. 2003)...."
A closing comment: if the judges find against Google Print, they basically have to invalidate the entire process of search engine servers storing masses of online copyrighted material, the corpus of which they access in order to provide useful search results in "snippet" form. A decision for the Author's Guild would simply lead to internet search chaos, and that is not the role of the courts. They have to apply the law sensibly. Hence, we think Google Print will win.
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Permalink : Andis Kaulins : 9/28/2005 05:37:00 PM
LAW PUNDIT 9/28/2005 12:38:00 AM [Home]
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Author's Guild v. Google Print (GooglePrint)
With reference to our immediately previous posting, we have looked around the blogosphere for important opinions on the suit by the Author's Guild against Google and have found the following, to which we add our own grain of salt, as appropriate.
Lawrence Lessig at Lessig Blog comments:
"So too should common sense revolt at the claims of this law suit. I’m an academic, so this is a bit biased, but: Google Print could be the most important contribution to the spread of knowledge since Jefferson dreamed of national libraries. It is an astonishing opportunity to revive our cultural past, and make it accessible."
Eric Goldman in his Technology & Marketing Law Blog comments on the precedential case of Kelly v. Arriba Soft Corporation, writing:
The Ninth Circuit found that displaying thumbnail versions of photographs was fair use. The Ninth Circuit also originally found that displaying the full-size versions of the photos would not be fair use, although the Ninth Circuit (18 months later) realized that it had ruled on a question that neither party had litigated, and it withdrew that part of the opinion. The resulting mess of the case is so confusing and questionable as precedent that I don't teach the case in Cyberlaw."
However, in the view of LawPundit, the logic of the court's revised ruling in Kelly v. Arriba Soft Corporation on the "fair use" of thumbnail images by a search engine is in fact quite clear. We quote our excerpted version below, which omits original footnotes, although some of their relevant content is included by us in our own bracketed writing:
The Opinion filed February 6, 2002, slip op. 1953, and appearing at 280 F.3d 934 (9th Cir. 2002), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit....
T.G. NELSON, Circuit Judge [delivered the opinion of the Court]:
...
A claim of copyright infringement is subject to certain statutory exceptions, including the fair use exception. This exception [citing Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1399 (9th Cir. 1997)] "permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." The statute sets out four factors to consider in determining whether the use in a particular case is a fair use. [The four factors are: (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. 17 U.S.C. § 107.] We must balance these factors in light of the objectives of copyright law, rather than view them as definitive or determinative tests. We now turn to the four fair use factors.
1. Purpose and character of the use.
[This part of the opinion can be applied in the case of Author's Guild v. Google to the argument that Google's Google Print project constitutes copyright infringement because Google is a commercial enterprise. This argument does not hold. Transformative use is permitted, also by commercial enterprises.]
The Supreme Court has rejected the proposition that a commercial use of the copyrighted material ends the inquiry under this factor. Instead, [citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)] "[t]he central purpose of this investigation is to see ... whether the new work merely supersede[s] the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative."
The more transformative the new work, the less important the other factors, including commercialism, become. There is no dispute that Arriba operates its web site for commercial purposes and that Kelly’s images were part of Arriba’s search engine database. As the district court found, while such use of Kelly’s images was commercial, it was more incidental and less exploitative in nature than more traditional types of commercial use. Arriba was neither using Kelly’s images to directly promote its web site nor trying to profit by selling Kelly’s images.
Instead, Kelly’s images were among thousands of images in Arriba’s search engine database. Because the use of Kelly’s images was not highly exploitative, the commercial nature of the use weighs only slightly against a finding of fair use. The second part of the inquiry as to this factor involves the transformative nature of the use. We must determine if Arriba’s use of the images merely superseded the object of the originals or instead added a further purpose or different character. We find that Arriba’s use of Kelly’s images for its thumbnails was transformative.
Although Arriba made exact replications of Kelly’s images, the thumbnails were much smaller, lower-resolution images that served an entirely different function than Kelly’s original images. Kelly’s images are artistic works intended to inform and to engage the viewer in an aesthetic experience. His images are used to portray scenes from the American West in an aesthetic manner. Arriba’s use of Kelly’s images in the thumbnails is unrelated to any aesthetic purpose.
Arriba’s search engine functions as a tool to help index and improve access to images on the internet and their related web sites....
This case involves more than merely a retransmission of Kelly’s images in a different medium.
Arriba’s use of the images serves a different function than Kelly’s use — improving access to information on the internet versus artistic expression.... Because Arriba’s use is not superseding Kelly’s use but, rather, has created a different purpose for the images, Arriba’s use is transformative.
The Copyright Act was intended to promote creativity, thereby benefitting the artist and the public alike. To preserve the potential future use of artistic works for purposes of teaching, research, criticism, and news reporting, Congress created the fair use exception. Arriba’s use of Kelly’s images promotes the goals of the Copyright Act and the fair use exception. The thumbnails do not stifle artistic creativity because they are not used for illustrative or artistic purposes and therefore do not supplant the need for the originals. In addition, they benefit the public by enhancing information-gathering techniques on the internet.
[Those above statements in the opinion support Google Print. Indeed, this is Google's strongest argument. Google Print actually promotes the INTENT of the Copyright Act.]
2. Nature of the copyrighted work.
[In the case of Google Print, the works to be scanned in libraries and to be listed on Google are published works which the copyright holders intended for public consumption. Accordingly, the public also has the RIGHT to be able to find these works and to discover what they are about using modern search methods, without this being a copyright infringement.]
[Citing A&M Records, 239 F.3d at 1016 (citing Campbell, 510 U.S. at 586)]
"Works that are creative in nature are closer to the core of intended copyright protection than are more fact-based works." Photographs that are meant to be viewed by the public for informative and aesthetic purposes, such as Kelly’s, are generally creative in nature. The fact that a work is published or unpublished also is a critical element of its nature. Published works are more likely to qualify as fair use because the first appearance of the artist’s expression has already occurred....
3. Amount and substantiality of portion used.
[In the case of Author's Guild v. Google, it would appear - according to the logic of Kelly v. Arriba Soft Corporation - that scanning of entire books is permitted if the purpose and character of use is transformative and such scanning is required to perform the permissible transformative use.]
[Citing Worldwide Church of God, 227 F.3d at 1118]
"While wholesale copying does not preclude fair use per se, copying an entire work militates against a finding of fair use." However, the extent of permissible copying varies with the purpose and character of the use. If the secondary user only copies as much as is necessary for his or her intended use, then this factor will not weigh against him or her. This factor neither weighs for nor
against either party because, although Arriba did copy each of Kelly’s images as a whole, it was reasonable to do so in light of Arriba’s use of the images. It was necessary for Arriba to copy the entire image to allow users to recognize the image and decide whether to pursue more information about the image or the originating web site. If Arriba only copied part of the image, it would be more difficult to identify it, thereby reducing the usefulness of the visual search engine.
[That same logic applies to books and finding the material presented in them.]
4. Effect of the use upon the potential market for or value of the copyrighted work.
[There may be individual cases unknown to us where the scanning and listing of works on search engines might harm the potential market for or value of a copyrighted work, but 99% of all published works would not be harmed in their potential market or value in any way. Indeed, a good percentage of authors would find that the potential market or value of the copyrighted work would increase because Google Print would provide the opportunity that their works - and especially the content of those works - be findable by the public.]
This last factor requires courts to consider [citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994), quoting 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 13.05[A][4] (1993)] "not only the extent of market harm caused by the particular actions of the alleged infringer, but also 'whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market for the original.'" A transformative work is less likely to have an adverse impact on the market of the original than a work that merely supersedes the copyrighted work.... Arriba’s use of Kelly’s images in its thumbnails does not harm the market for Kelly’s images or the value of his images. By showing the thumbnails on its results page when users entered terms related to Kelly’s images, the search engine would guide users to Kelly’s web site rather than away from it....
CONCLUSION
We hold that Arriba’s reproduction of Kelly’s images for use as thumbnails in Arriba’s search engine is a fair use under the Copyright Act."
Scrivener's Error points out accurately that the actual copyright to most trade books still resides with the author but then goes forward to make the error in thinking that Google's opt-in or opt-out option has any major relevance for the judicial decision in this case. It does not. The major question is whether Google's scanning of library books for the purposes of listing such books on a search engine is a transformative use - and the answer can only be - yes, it is, depending upon how that material is presented online. The opt-in or opt-out function has merely to do with the time at which a copyright holder gives permission - which is in fact not even required for a transformative use.
William Patry has changed his mind from his original opinion at The Patry Copyright Blog after reading Jonathan Band's legal analysis in the interim. He writes at Google Revisited:
"So in the Google project, why should we care if there are server copies? The purposes for the copies in connection with the Print Library project is to give people access to knowledge about the existence of the book as well as a tiny amount of text. That is of great help to researchers and hopefully to authors and publishers of the books too. It in no way harms copyright owners unless the project becomes something else, namely a full-text service which then is a market substitute."
Such a change of heart can only be based on a better subsequent analysis of the applicable law, which, in our view, clearly favors Google.
Mike Madison at the Conglomerate writes:
"Books are really, really important things culturally, particularly in Western culture. Have been for hundreds of years. Almost everyone loves books and depends on books. And books are absolutely central to modern copyright law, both conceptually and doctrinally. (They're even more important than authors, in my view. But I'll take on one controversial topic at a time.) Books are fixed, limited containers of creativity. Books have beginnings, middles, and ends. Without books, we wouldn't have "works," and without "works" we wouldn't know how to process questions of incentives and questions of access. We wouldn't know where to put the author's "moral right," if there is one; we wouldn't know what to refer to when we make "fair use" of a work. We wouldn't know what to distribute, and distribution of creativity is the ultimate goal of the whole system."
Susan Crawford blog writes:
"Get interested in GooglePrint. It's one of the best plans that Google has, and it needs to happen. No one is going to bring more books to the attention of the world -- and help more authors -- than Google. Here are all the reasons that we should applaud Google for going forward with GooglePrint, and all the reasons why Google will prevail in the (sadly) recently-filed lawsuit."
Solveig Singleton at IPcentral Weblog predicts that Google will settle the case. Our opinion is that Google would be idiots to give in. They are in the right.
This class action is a violation of the spirit of the Class-Action Fairness Act of 2005. Some few are trying here to profit at the expense of the rest of the authors of the country. No damage has been done and yet some authors already want to obtain damage payments of some kind. The Author's Guild has no right to try to represent copyright holders in a class action for a right which is individual to each copyright owner. The class action suit by the Author's Guild against Google is nothing more than an attempted preemption of that individual right of copyright. This is a far greater danger to copyright owners' rights than anything that Google is doing.
See also Scrivener's Error for a listing of errors in the Author's Guild class action complaint.
James DeLong at IPcentral Weblog observes:
"Google might well win a decision that copying a whole book so that individualized snippets can be made available is itself a fair use because it greatly reduces overall transaction costs in the society. I find this argument persuasive, though it would be interesting to hear the other side."
Andrew Raff at IPTA Blog in "Google, Publishers, Copies and "Being Evil" has a good overview of blog postings on this topic.
Update, 28 September 2005, Technorati Tags:
copyright, copyrights, law, copyright law, publishing, fair use, authors, Author's Guild, Google, Google Print, GooglePrint, Harvard, Stanford, legal, Michigan, Oxford, infringement, copyright infringement, class action, class actions, library, libraries, digitization.
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Permalink : Andis Kaulins : 9/28/2005 12:38:00 AM
Author's Guild v. Google Print (GooglePrint)
With reference to our immediately previous posting, we have looked around the blogosphere for important opinions on the suit by the Author's Guild against Google and have found the following, to which we add our own grain of salt, as appropriate.
Lawrence Lessig at Lessig Blog comments:
"So too should common sense revolt at the claims of this law suit. I’m an academic, so this is a bit biased, but: Google Print could be the most important contribution to the spread of knowledge since Jefferson dreamed of national libraries. It is an astonishing opportunity to revive our cultural past, and make it accessible."
Eric Goldman in his Technology & Marketing Law Blog comments on the precedential case of Kelly v. Arriba Soft Corporation, writing:
The Ninth Circuit found that displaying thumbnail versions of photographs was fair use. The Ninth Circuit also originally found that displaying the full-size versions of the photos would not be fair use, although the Ninth Circuit (18 months later) realized that it had ruled on a question that neither party had litigated, and it withdrew that part of the opinion. The resulting mess of the case is so confusing and questionable as precedent that I don't teach the case in Cyberlaw."
However, in the view of LawPundit, the logic of the court's revised ruling in Kelly v. Arriba Soft Corporation on the "fair use" of thumbnail images by a search engine is in fact quite clear. We quote our excerpted version below, which omits original footnotes, although some of their relevant content is included by us in our own bracketed writing:
The Opinion filed February 6, 2002, slip op. 1953, and appearing at 280 F.3d 934 (9th Cir. 2002), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit....
T.G. NELSON, Circuit Judge [delivered the opinion of the Court]:
...
A claim of copyright infringement is subject to certain statutory exceptions, including the fair use exception. This exception [citing Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1399 (9th Cir. 1997)] "permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." The statute sets out four factors to consider in determining whether the use in a particular case is a fair use. [The four factors are: (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. 17 U.S.C. § 107.] We must balance these factors in light of the objectives of copyright law, rather than view them as definitive or determinative tests. We now turn to the four fair use factors.
1. Purpose and character of the use.
[This part of the opinion can be applied in the case of Author's Guild v. Google to the argument that Google's Google Print project constitutes copyright infringement because Google is a commercial enterprise. This argument does not hold. Transformative use is permitted, also by commercial enterprises.]
The Supreme Court has rejected the proposition that a commercial use of the copyrighted material ends the inquiry under this factor. Instead, [citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)] "[t]he central purpose of this investigation is to see ... whether the new work merely supersede[s] the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative."
The more transformative the new work, the less important the other factors, including commercialism, become. There is no dispute that Arriba operates its web site for commercial purposes and that Kelly’s images were part of Arriba’s search engine database. As the district court found, while such use of Kelly’s images was commercial, it was more incidental and less exploitative in nature than more traditional types of commercial use. Arriba was neither using Kelly’s images to directly promote its web site nor trying to profit by selling Kelly’s images.
Instead, Kelly’s images were among thousands of images in Arriba’s search engine database. Because the use of Kelly’s images was not highly exploitative, the commercial nature of the use weighs only slightly against a finding of fair use. The second part of the inquiry as to this factor involves the transformative nature of the use. We must determine if Arriba’s use of the images merely superseded the object of the originals or instead added a further purpose or different character. We find that Arriba’s use of Kelly’s images for its thumbnails was transformative.
Although Arriba made exact replications of Kelly’s images, the thumbnails were much smaller, lower-resolution images that served an entirely different function than Kelly’s original images. Kelly’s images are artistic works intended to inform and to engage the viewer in an aesthetic experience. His images are used to portray scenes from the American West in an aesthetic manner. Arriba’s use of Kelly’s images in the thumbnails is unrelated to any aesthetic purpose.
Arriba’s search engine functions as a tool to help index and improve access to images on the internet and their related web sites....
This case involves more than merely a retransmission of Kelly’s images in a different medium.
Arriba’s use of the images serves a different function than Kelly’s use — improving access to information on the internet versus artistic expression.... Because Arriba’s use is not superseding Kelly’s use but, rather, has created a different purpose for the images, Arriba’s use is transformative.
The Copyright Act was intended to promote creativity, thereby benefitting the artist and the public alike. To preserve the potential future use of artistic works for purposes of teaching, research, criticism, and news reporting, Congress created the fair use exception. Arriba’s use of Kelly’s images promotes the goals of the Copyright Act and the fair use exception. The thumbnails do not stifle artistic creativity because they are not used for illustrative or artistic purposes and therefore do not supplant the need for the originals. In addition, they benefit the public by enhancing information-gathering techniques on the internet.
[Those above statements in the opinion support Google Print. Indeed, this is Google's strongest argument. Google Print actually promotes the INTENT of the Copyright Act.]
2. Nature of the copyrighted work.
[In the case of Google Print, the works to be scanned in libraries and to be listed on Google are published works which the copyright holders intended for public consumption. Accordingly, the public also has the RIGHT to be able to find these works and to discover what they are about using modern search methods, without this being a copyright infringement.]
[Citing A&M Records, 239 F.3d at 1016 (citing Campbell, 510 U.S. at 586)]
"Works that are creative in nature are closer to the core of intended copyright protection than are more fact-based works." Photographs that are meant to be viewed by the public for informative and aesthetic purposes, such as Kelly’s, are generally creative in nature. The fact that a work is published or unpublished also is a critical element of its nature. Published works are more likely to qualify as fair use because the first appearance of the artist’s expression has already occurred....
3. Amount and substantiality of portion used.
[In the case of Author's Guild v. Google, it would appear - according to the logic of Kelly v. Arriba Soft Corporation - that scanning of entire books is permitted if the purpose and character of use is transformative and such scanning is required to perform the permissible transformative use.]
[Citing Worldwide Church of God, 227 F.3d at 1118]
"While wholesale copying does not preclude fair use per se, copying an entire work militates against a finding of fair use." However, the extent of permissible copying varies with the purpose and character of the use. If the secondary user only copies as much as is necessary for his or her intended use, then this factor will not weigh against him or her. This factor neither weighs for nor
against either party because, although Arriba did copy each of Kelly’s images as a whole, it was reasonable to do so in light of Arriba’s use of the images. It was necessary for Arriba to copy the entire image to allow users to recognize the image and decide whether to pursue more information about the image or the originating web site. If Arriba only copied part of the image, it would be more difficult to identify it, thereby reducing the usefulness of the visual search engine.
[That same logic applies to books and finding the material presented in them.]
4. Effect of the use upon the potential market for or value of the copyrighted work.
[There may be individual cases unknown to us where the scanning and listing of works on search engines might harm the potential market for or value of a copyrighted work, but 99% of all published works would not be harmed in their potential market or value in any way. Indeed, a good percentage of authors would find that the potential market or value of the copyrighted work would increase because Google Print would provide the opportunity that their works - and especially the content of those works - be findable by the public.]
This last factor requires courts to consider [citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994), quoting 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 13.05[A][4] (1993)] "not only the extent of market harm caused by the particular actions of the alleged infringer, but also 'whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market for the original.'" A transformative work is less likely to have an adverse impact on the market of the original than a work that merely supersedes the copyrighted work.... Arriba’s use of Kelly’s images in its thumbnails does not harm the market for Kelly’s images or the value of his images. By showing the thumbnails on its results page when users entered terms related to Kelly’s images, the search engine would guide users to Kelly’s web site rather than away from it....
CONCLUSION
We hold that Arriba’s reproduction of Kelly’s images for use as thumbnails in Arriba’s search engine is a fair use under the Copyright Act."
Scrivener's Error points out accurately that the actual copyright to most trade books still resides with the author but then goes forward to make the error in thinking that Google's opt-in or opt-out option has any major relevance for the judicial decision in this case. It does not. The major question is whether Google's scanning of library books for the purposes of listing such books on a search engine is a transformative use - and the answer can only be - yes, it is, depending upon how that material is presented online. The opt-in or opt-out function has merely to do with the time at which a copyright holder gives permission - which is in fact not even required for a transformative use.
William Patry has changed his mind from his original opinion at The Patry Copyright Blog after reading Jonathan Band's legal analysis in the interim. He writes at Google Revisited:
"So in the Google project, why should we care if there are server copies? The purposes for the copies in connection with the Print Library project is to give people access to knowledge about the existence of the book as well as a tiny amount of text. That is of great help to researchers and hopefully to authors and publishers of the books too. It in no way harms copyright owners unless the project becomes something else, namely a full-text service which then is a market substitute."
Such a change of heart can only be based on a better subsequent analysis of the applicable law, which, in our view, clearly favors Google.
Mike Madison at the Conglomerate writes:
"Books are really, really important things culturally, particularly in Western culture. Have been for hundreds of years. Almost everyone loves books and depends on books. And books are absolutely central to modern copyright law, both conceptually and doctrinally. (They're even more important than authors, in my view. But I'll take on one controversial topic at a time.) Books are fixed, limited containers of creativity. Books have beginnings, middles, and ends. Without books, we wouldn't have "works," and without "works" we wouldn't know how to process questions of incentives and questions of access. We wouldn't know where to put the author's "moral right," if there is one; we wouldn't know what to refer to when we make "fair use" of a work. We wouldn't know what to distribute, and distribution of creativity is the ultimate goal of the whole system."
Susan Crawford blog writes:
"Get interested in GooglePrint. It's one of the best plans that Google has, and it needs to happen. No one is going to bring more books to the attention of the world -- and help more authors -- than Google. Here are all the reasons that we should applaud Google for going forward with GooglePrint, and all the reasons why Google will prevail in the (sadly) recently-filed lawsuit."
Solveig Singleton at IPcentral Weblog predicts that Google will settle the case. Our opinion is that Google would be idiots to give in. They are in the right.
This class action is a violation of the spirit of the Class-Action Fairness Act of 2005. Some few are trying here to profit at the expense of the rest of the authors of the country. No damage has been done and yet some authors already want to obtain damage payments of some kind. The Author's Guild has no right to try to represent copyright holders in a class action for a right which is individual to each copyright owner. The class action suit by the Author's Guild against Google is nothing more than an attempted preemption of that individual right of copyright. This is a far greater danger to copyright owners' rights than anything that Google is doing.
See also Scrivener's Error for a listing of errors in the Author's Guild class action complaint.
James DeLong at IPcentral Weblog observes:
"Google might well win a decision that copying a whole book so that individualized snippets can be made available is itself a fair use because it greatly reduces overall transaction costs in the society. I find this argument persuasive, though it would be interesting to hear the other side."
Andrew Raff at IPTA Blog in "Google, Publishers, Copies and "Being Evil" has a good overview of blog postings on this topic.
Update, 28 September 2005, Technorati Tags:
copyright, copyrights, law, copyright law, publishing, fair use, authors, Author's Guild, Google, Google Print, GooglePrint, Harvard, Stanford, legal, Michigan, Oxford, infringement, copyright infringement, class action, class actions, library, libraries, digitization.
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Permalink : Andis Kaulins : 9/28/2005 12:38:00 AM
LAW PUNDIT Monday, September 26, 2005 9/26/2005 08:42:00 PM [Home]
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Author's Guild Sues Google for Copyright Infringement - The Author's Guild does NOT represent THIS Author
NOTE: We have more than a cursory interest in this matter as several of our book publications are found in the following libraries: Michigan (1 book), Stanford (6 books), Harvard (9 books), Oxford (1 book) and the New York Public Library (5 books).
Numerous reports have already appeared on the September 20, 2005 copyright suit brought by the Author's Guild against Google because of its Google Print Project, known generally as "Google Print".
We refer here to TVC Alert at The Virtual Chase (hat tip).
The Washington Post has a September 21, 2005 Reuters article by Eric Auchard titled "Google library push faces lawsuit by US authors".
Edward Wyatt has a September 21, 2005 article at the New York Times, Writers Sue Google, Accusing It of Copyright Violation.
As reported there, the plaintiffs, the Author's Guild and three associated authors, also suing "on behalf of all others similarly situated", filed a class action complaint for copyright infringement against Google Inc. on September 20, 2005 in the US District Court for the Southern District of New York (Manhattan).
The copyright violation claimed applies to Google's Google Print program, which seeks to scan the library holdings of the university libraries of Stanford, Harvard, Michigan, and Oxford as well as of the New York Public Library (see the first paragraph above) in an effort to create a searchable library of the world's printed books.
The Official Google Blog has a statement on the suit by Susan Wojcicki, Vice President, Product Management Google, indicating that Google will raise the "fair use" defense.
The fair use exception to copyrights is found in Section 107 of Title 17 of the United States Code which encompasses the Copyright Law of the United States of America.
Google refers to an analysis of Google Print and copyright law by Jonathan Band at "The Google Print Library Project: A Copyright Analysis".
As noted above, the LawPundit is the author of numerous copyrighted books and fully supports the Google Print project as a modern means of making information about those books more publicly available. As can be seen at the page Stars Stones and Scholars of Trafford Publishing, what Google seeks to do is already being done by some publishing companies. Star Stones and Scholars is also one of my books and I can confirm that although potential readers are able to read a sizeable excerpt out of that book for free, the online-presence of free material from this book has definitely increased sales of the book, not only at Trafford, but also at Amazon.
This lawsuit by the Author's Guild represents the reactionary, anti-competitive and antiquated side of the publishing industry of yesteryear, representing the vested, monied publishing interests of a very small minority of authors, and it can only be hoped that the courts will so find. If the plaintiffs in this case do not want their copyrighted works to be included on Google, they can do this easily by so notifying Google. Their not being listed would only serve them right. Requiring Google to personally contact all the world's copyright holders would just be silly since 99% are not going to complain if their works are indexed by Google. We, the vast majority of book authors, should not have to suffer because of the selfish 1%.
Seeking a class action here runs counter to the right of copyright which is an individual right, not a right of groups or multiple plaintiffs. A copyright class action is a contradiction in terms. This is also precisely the kind of lawsuit that the Class Action Fairness Act of 2005 was intended in spirit to stop. I neither need nor want - nor have I authorized - the Author's Guild to bring this action on my behalf, nor do I support its claim that the Google Print project constitutes copyright infringement. The ultimate profit that Google could possibly make from MY work is miniscule. The ultimate gain that I could possibly obtain from my publications being listed in Google Print is substantial.
Update, 27 September 2005, Technorati Tags:
copyright, copyrights, law, copyright law, publishing, fair use, authors, Author's Guild, Google, Google Print, Harvard, Stanford, legal, Michigan, Oxford, infringement, copyright infringement, class action, class actions, library, libraries, digitization.
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Permalink : Andis Kaulins : 9/26/2005 08:42:00 PM
Author's Guild Sues Google for Copyright Infringement - The Author's Guild does NOT represent THIS Author
NOTE: We have more than a cursory interest in this matter as several of our book publications are found in the following libraries: Michigan (1 book), Stanford (6 books), Harvard (9 books), Oxford (1 book) and the New York Public Library (5 books).
Numerous reports have already appeared on the September 20, 2005 copyright suit brought by the Author's Guild against Google because of its Google Print Project, known generally as "Google Print".
We refer here to TVC Alert at The Virtual Chase (hat tip).
The Washington Post has a September 21, 2005 Reuters article by Eric Auchard titled "Google library push faces lawsuit by US authors".
Edward Wyatt has a September 21, 2005 article at the New York Times, Writers Sue Google, Accusing It of Copyright Violation.
As reported there, the plaintiffs, the Author's Guild and three associated authors, also suing "on behalf of all others similarly situated", filed a class action complaint for copyright infringement against Google Inc. on September 20, 2005 in the US District Court for the Southern District of New York (Manhattan).
The copyright violation claimed applies to Google's Google Print program, which seeks to scan the library holdings of the university libraries of Stanford, Harvard, Michigan, and Oxford as well as of the New York Public Library (see the first paragraph above) in an effort to create a searchable library of the world's printed books.
The Official Google Blog has a statement on the suit by Susan Wojcicki, Vice President, Product Management Google, indicating that Google will raise the "fair use" defense.
The fair use exception to copyrights is found in Section 107 of Title 17 of the United States Code which encompasses the Copyright Law of the United States of America.
Google refers to an analysis of Google Print and copyright law by Jonathan Band at "The Google Print Library Project: A Copyright Analysis".
As noted above, the LawPundit is the author of numerous copyrighted books and fully supports the Google Print project as a modern means of making information about those books more publicly available. As can be seen at the page Stars Stones and Scholars of Trafford Publishing, what Google seeks to do is already being done by some publishing companies. Star Stones and Scholars is also one of my books and I can confirm that although potential readers are able to read a sizeable excerpt out of that book for free, the online-presence of free material from this book has definitely increased sales of the book, not only at Trafford, but also at Amazon.
This lawsuit by the Author's Guild represents the reactionary, anti-competitive and antiquated side of the publishing industry of yesteryear, representing the vested, monied publishing interests of a very small minority of authors, and it can only be hoped that the courts will so find. If the plaintiffs in this case do not want their copyrighted works to be included on Google, they can do this easily by so notifying Google. Their not being listed would only serve them right. Requiring Google to personally contact all the world's copyright holders would just be silly since 99% are not going to complain if their works are indexed by Google. We, the vast majority of book authors, should not have to suffer because of the selfish 1%.
Seeking a class action here runs counter to the right of copyright which is an individual right, not a right of groups or multiple plaintiffs. A copyright class action is a contradiction in terms. This is also precisely the kind of lawsuit that the Class Action Fairness Act of 2005 was intended in spirit to stop. I neither need nor want - nor have I authorized - the Author's Guild to bring this action on my behalf, nor do I support its claim that the Google Print project constitutes copyright infringement. The ultimate profit that Google could possibly make from MY work is miniscule. The ultimate gain that I could possibly obtain from my publications being listed in Google Print is substantial.
Update, 27 September 2005, Technorati Tags:
copyright, copyrights, law, copyright law, publishing, fair use, authors, Author's Guild, Google, Google Print, Harvard, Stanford, legal, Michigan, Oxford, infringement, copyright infringement, class action, class actions, library, libraries, digitization.
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Permalink : Andis Kaulins : 9/26/2005 08:42:00 PM
LAW PUNDIT Saturday, September 24, 2005 9/24/2005 08:49:00 PM [Home]
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Proprietary File Formats vs. State Sovereignty
The IT blog Between the Lines has a September 22, 2005 report on the recent, highly significant tussle between Microsoft and the Commonwealth of Massachusetts concerning proprietary rights to file formats vs. state sovereignty. Massachusetts won in a precedential battle of potentially long- and broad-ranging impact. As noted by David Berlind at Between the Lines:
"Mass. officials also gave their definition of an open specification as one that meets the following three criteria:
- It must have no or absolutely minimal legal restrictions attached to it.
- It must be published and subject to peer review
- It must be subject to joint stewardship"
Microsoft had no choice but to give in or lose the Massachusetts business and thus "[made] the license to the Office file formats perpetual and royalty-free.
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Permalink : Andis Kaulins : 9/24/2005 08:49:00 PM
Proprietary File Formats vs. State Sovereignty
The IT blog Between the Lines has a September 22, 2005 report on the recent, highly significant tussle between Microsoft and the Commonwealth of Massachusetts concerning proprietary rights to file formats vs. state sovereignty. Massachusetts won in a precedential battle of potentially long- and broad-ranging impact. As noted by David Berlind at Between the Lines:
"Mass. officials also gave their definition of an open specification as one that meets the following three criteria:
- It must have no or absolutely minimal legal restrictions attached to it.
- It must be published and subject to peer review
- It must be subject to joint stewardship"
Microsoft had no choice but to give in or lose the Massachusetts business and thus "[made] the license to the Office file formats perpetual and royalty-free.
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Permalink : Andis Kaulins : 9/24/2005 08:49:00 PM
LAW PUNDIT Friday, September 23, 2005 9/23/2005 02:11:00 PM [Home]
[Print]
The (Arianna) Huffington Post Blog and Birds of a Feather
Birds of a feather...flock together.
As a political centrist and multi-professional my day-to-day is filled with a lot of solid content. As a result, I am a great fan of the world of pseudo-glamour and its lack of that content - which creates a nice balance between the the two. Actually, that last phrase is redundant.
Arianna Huffington has a nice posting on a just clebrated party of the "the Vanguard...and the Old Guard". And you have to hand it to Arianna for having the chutzpah (audacity) to call her blog The Blog. But then again you have to know how to market yourself, and Arianna does, who doubts this?
Those deluded ones who think that the blogging movement is a collection of lone wolfs hacking away their bleary-eyed nights at their computers in the basements of tenement buildings (there are of course a few of those) should read this from Arianna on partying with the birds of the feather:
"Nick Denton of Gawker Media threw a party Wednesday night welcoming the Huffington Post to the neighborhood -- both to the Soho neighborhood, where our office is, and to the online neighborhood....
The media-centric crowd was mostly new media with a sprinkling of old -- and more than a few who straddle both....
There was much obsessive talk about the surging growth in online traffic and advertising. And the way old media moguls like Rupert Murdoch are set on becoming online media moguls as well. And the growing newspaper troubles -- including more layoffs at the New York Times and circulation drops at the Washington Post, Los Angeles Times, Chicago Tribune, and San Francisco Chronicle."
So who are these feathery birds and their digital nests who were at this party?
Blogs and bloggers represented at the party....
Gossip
- Jessica Coen (show biz gossip and news)
- At Gawker (New York gossip and news) we were flabbergasted to read that Ronald McDonald had become a female in Japan.
- Defamer (L.A. gossip and news)
- Wonkette (Washington D.C. gossip)
- Sploid (tabloid news)
Social Networking
We were particularly intrigued by the mention of a site previously unknown to us, Dodgeball, a real-time mobile social networking system that we see as being a pioneering forerunner of wireless communciation for fun and business, home and work.
Avantgarde Media and Media Blogs
- Megnut in the person of Pyra-Labs (Blogger forerunner) co-founder Meg Hourihan
- Slate
- Elizabeth Spiers (MediaBistro)
- John Batelle
- Jake Dobkin of the Big Apple oriented Gothamist
- College Humor
- The Onion
- Salon
Representatives of Big Mainstream Media
- AOL in the persons of Jim Bankoff and Michael Wolfson
- Arianne writes:
"MSM representatives included Kit Seelye of the New York Times; Serena Torrey of New York magazine; Lloyd Grove of the Daily News; Peter Maass of the New York Times Magazine; Julia Rothwax and Josh Green of The Atlantic; and Lawrence O'Donnell of The McLaughlin Group and West Wing; with Jason Rapp of NYTimes.com; Eric Alterman; Joe Conason; Rufus Griscom of Nerve; Remy Stern and Maer Roshan of Radar; Nathan Richardson of WSJ Online; and Jeremy Phillips of News Corp among the straddlers."
Political Blogs
- Talking Points Memo
Erotica Blogs
- Fleshbot ("politically correct" erotica as long as you don't follow the links too far - if you do, make sure you have a strong anti-spy program or you may find your computer overrun with spyware and worse - you are warned)
Media Conclusion
So basically, blogging is taking off where other media may be fading. The message is the same, but only the media are changing. Marshall McLuhan of "the media is the message" would be pleased.
We were not invited, but then again, consider who else was NOT at the party.
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Permalink : Andis Kaulins : 9/23/2005 02:11:00 PM
The (Arianna) Huffington Post Blog and Birds of a Feather
Birds of a feather...flock together.
As a political centrist and multi-professional my day-to-day is filled with a lot of solid content. As a result, I am a great fan of the world of pseudo-glamour and its lack of that content - which creates a nice balance between the the two. Actually, that last phrase is redundant.
Arianna Huffington has a nice posting on a just clebrated party of the "the Vanguard...and the Old Guard". And you have to hand it to Arianna for having the chutzpah (audacity) to call her blog The Blog. But then again you have to know how to market yourself, and Arianna does, who doubts this?
Those deluded ones who think that the blogging movement is a collection of lone wolfs hacking away their bleary-eyed nights at their computers in the basements of tenement buildings (there are of course a few of those) should read this from Arianna on partying with the birds of the feather:
"Nick Denton of Gawker Media threw a party Wednesday night welcoming the Huffington Post to the neighborhood -- both to the Soho neighborhood, where our office is, and to the online neighborhood....
The media-centric crowd was mostly new media with a sprinkling of old -- and more than a few who straddle both....
There was much obsessive talk about the surging growth in online traffic and advertising. And the way old media moguls like Rupert Murdoch are set on becoming online media moguls as well. And the growing newspaper troubles -- including more layoffs at the New York Times and circulation drops at the Washington Post, Los Angeles Times, Chicago Tribune, and San Francisco Chronicle."
So who are these feathery birds and their digital nests who were at this party?
Blogs and bloggers represented at the party....
Gossip
- Jessica Coen (show biz gossip and news)
- At Gawker (New York gossip and news) we were flabbergasted to read that Ronald McDonald had become a female in Japan.
- Defamer (L.A. gossip and news)
- Wonkette (Washington D.C. gossip)
- Sploid (tabloid news)
Social Networking
We were particularly intrigued by the mention of a site previously unknown to us, Dodgeball, a real-time mobile social networking system that we see as being a pioneering forerunner of wireless communciation for fun and business, home and work.
Avantgarde Media and Media Blogs
- Megnut in the person of Pyra-Labs (Blogger forerunner) co-founder Meg Hourihan
- Slate
- Elizabeth Spiers (MediaBistro)
- John Batelle
- Jake Dobkin of the Big Apple oriented Gothamist
- College Humor
- The Onion
- Salon
Representatives of Big Mainstream Media
- AOL in the persons of Jim Bankoff and Michael Wolfson
- Arianne writes:
"MSM representatives included Kit Seelye of the New York Times; Serena Torrey of New York magazine; Lloyd Grove of the Daily News; Peter Maass of the New York Times Magazine; Julia Rothwax and Josh Green of The Atlantic; and Lawrence O'Donnell of The McLaughlin Group and West Wing; with Jason Rapp of NYTimes.com; Eric Alterman; Joe Conason; Rufus Griscom of Nerve; Remy Stern and Maer Roshan of Radar; Nathan Richardson of WSJ Online; and Jeremy Phillips of News Corp among the straddlers."
Political Blogs
- Talking Points Memo
Erotica Blogs
- Fleshbot ("politically correct" erotica as long as you don't follow the links too far - if you do, make sure you have a strong anti-spy program or you may find your computer overrun with spyware and worse - you are warned)
Media Conclusion
So basically, blogging is taking off where other media may be fading. The message is the same, but only the media are changing. Marshall McLuhan of "the media is the message" would be pleased.
We were not invited, but then again, consider who else was NOT at the party.
.
Permalink : Andis Kaulins : 9/23/2005 02:11:00 PM
LAW PUNDIT Wednesday, September 21, 2005 9/21/2005 01:31:00 PM [Home]
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Dubya or Dontya ?
This is one of my rarer posts on politics and presents some of my ideas about things that make the world go 'round: Dubya or Dontya ?
(Note: Dubya is the way the middle W in George W. Bush's name is pronounced in some parts of the USA and it has become a nickname of sorts for the President. Dontya (or dontcha) is a short-form writing of "don't you"). So, Dubya or Dontya, "do you or don't you ..." [fill in the blank]?
A friend of mine wrote the following:
"So, what do you think about a president who doesn't believe in evolution? Or, global warming. Or, women's rights. Or, stem cell research."
Here is what I wrote (with slight amendments):
GEORGE W. BUSH
We have to separate the man from the office. Many people do not like George W. Bush at all as a person, but we should not focus on whether we like his personality, which is a personal thing, but rather on the policies and actions of his administration. To like a product, we do not need to like the product's maker, and vice versa.
Globally, I think we greatly overestimate the importance of the US President in the great scope of things. Dubya has inherited his father's business, as it were. This happens all the time in the business world.
I myself find Dubya amusing, somewhat hapless intellectually, but strong in his core of decisionmaking, which a President needs to be.
This decisionmaking is one of the primary responsibilities of a President of the United States. He MUST decide, or, as fromer President Harry S. Truman had written on a plaque on his desk: "The buck stops here". The President can not "pass the buck" to someone else. He must act and he is held responsible for what he does.
It is one thing to be a pundit but it is another thing to actually carry and have to exercise responsibility.
To judge any person accurately in his position, we should honestly ask ourselves: What would we do if WE carried the actual responsibility? If we did so honestly, we would find that we would in fact often act differently than what we profess. Indeed, people often say one thing but do another. It is the latter that counts.
AMERICA
In addition, rather than to concentrate solely on the President and his office, we should come to terms with the realization that George W. Bush symbolizes a great portion of America generally. Millions of Americans put Dubya where he is. So, it is not Bush that is the problem, if a problem exists, it is the America who put him in his office that is the problem, if a problem exists. Bush is not at fault for that, no more than he is for the vagaries of nature such as Hurricane Katrina, which devastated New Orleans and led to other unnecessary difficulties there, in part because of long-term and short-term failings by thousands of other Americans.
It is, in any case, quite wrong, stupid and foolish on the part of many commentators to constantly see George W. Bush as the scapegoat for things they dislike about current events. That merely shows a superficiality of analysis which prefers to deal in personalities rather than getting down to the brass tacks of causality for the world's existing problems.
The fact is, America is the world's most powerful nation and it exercises its power to protect itself, which is to be expected. Some like this exercise of power and some do not, but no one can deny that George W. Bush is acting in what he views to be America's best interests. All the rest is a difference of opinion on how to do it.
EVOLUTION and CREATIONISM
Bush's views on evolution have little effect in a country where the number of dogmatic creationists is steadily increasing. In my view, the proof that men evolved from the apes is found in many of mankind's adamant stand that they do not. Frankly, the "intelligent design" of God would have created a smarter creature than what we see on Earth currently. Most men still have one leg in their former chimpanzee mentality. On the other hand, if we view time as endless in infinity, then our being here is nothing more than the snap of the fingers - i.e. in this sense, the creationists are not wrong. Whether we "evolved" or "were created" is simply a matter of your time reference, nothing more. On a time spectrum of trillions of years and beyond, man's presence is not even a second of time by comparison.
GLOBAL WARMING
Global warming is not high on my anti-Bush priority list - execept as explained below - because George W. alone can do little about the fact that we have 6 billion people on this planet and steadily increasing.
Instead of rewarding underdeveloped countries with money for stupidities I would reduce all US foreign aid to the provision of birth control devices and anti-baby pills. Go after the cause of the problem.
In this connection, the emotional issue of abortion in the USA is absurd when one sees the inhabitants of the mass of underdeveloped nations increasing their populations dramatically. The world is becoming a dangerous playground for overpopulated elements whose sheer mass presence is the major problem of global warming (and other dire problems). Imagine the pollution and warming when every human being (and 10 billion inhabitants is not that far off) has an automobile and is defecating his wastes into the rivers and oceans. Appalling.
WOMEN'S RIGHTS
Women control 70% of the assets in the Western world - mostly through inheritance, because they also live on average 7 years longer than men do (those at least are the statistics here in Europe). When the women go on the warpath about women's rights, is it really justified by such major parameters as above? Do men have more or fewer actual rights than the ladies? Why do men not live as long as women? Is it because a man's life has more stress? Is that a right?
If women want to be chairpersons of Hewlett-Packard - great - more power to them. For that, I hope then to have more time to be on the golf course. As for the controversial abortion issue and the right of women to their own bodies - now really, how many people are we talking about here? The solution is - if some are aborting more, we others should reproduce more. Such a simple remedy. Raise up a contradictory movement, as it were. The possibilities are immense.
STEM CELL RESEARCH and MEDICAL CLONING
I can share no real understanding of why stem cell research or medical cloning are so emotionally controversial. Here is what I read at the government NIH website:
"The use of embryonic stem cells is controversial. The controversy is based on the belief by opponents that a fertilized egg is fundamentally a human being with rights and interests that need to be protected. Those who oppose stem cell research do not want fetuses and fertilized eggs used for research purposes.
Supporters of stem cell research argue that the fertilized eggs are donated with consent from each couple and would be discarded anyway. Therefore, there is no potential for those fertilized eggs to become human beings. Fertilized eggs are not (at this time) being created specifically for stem cell research.
As with any moral and ethical issue, the controversy surrounding stem cell research will likely continue for quite some time. Supporters believe that an aggressive federal program is needed before the potential of stem cell research can be realized. At this time, federal funding is limited to stem cell lines that already exist. The funding does not support further destruction of fertilized eggs. This is based on the idea that the "life and death" decision on the existing stem cell lines has already been made. Thus, a compromise has been made that supports medical research and respects the fundamental moral issues associated with the potential for life."
What does Dubya have to do with any of this? Veritably nothing. This is merely the progress of science and the inevitable controversy about that progress and the possibiities that it opens. Stem cell research is e.g. allowed in the United Kingdom but there are legitimate legal issues which need to be managed, so that there is always a middle road to be found down the road.
See generally ISSCR
Europe
European Union
Modern genetics will lead to many new things that are different than what happened in previous eras and which frighten the uninformed masses. That is to be expected. It is also to be expected that there will be opposition and need for regulation.
DUBYA or DONTYA
I judge Dubya and the Bush administration by things that affect me directly - Don't You?- and those are the issues of security and the economy.
I am a staunch Bush supporter on foreign policy. This is a tough world out there and you have to get rid of the crazies and all who support them. You do not wait for rogue states to start selling nuclear weapons to the world.
On domestic policy, I am anti-Bush because he made absolutely needless tax cuts for the rich which have brought nothing for the nation's economy. The rich put that money - originally a plus in the treasury under President Clinton - back into the treasury as loans (federal securities) for which the rest of the country now has to pay taxes to pick up the interest payments. This was a stupid redistribution of monies which the middle class has to bear so that the rich have more money.
Many other so-called issues of our time are tangential issues which have little or no impact on my life - or yours.
.
Permalink : Andis Kaulins : 9/21/2005 01:31:00 PM
Dubya or Dontya ?
This is one of my rarer posts on politics and presents some of my ideas about things that make the world go 'round: Dubya or Dontya ?
(Note: Dubya is the way the middle W in George W. Bush's name is pronounced in some parts of the USA and it has become a nickname of sorts for the President. Dontya (or dontcha) is a short-form writing of "don't you"). So, Dubya or Dontya, "do you or don't you ..." [fill in the blank]?
A friend of mine wrote the following:
"So, what do you think about a president who doesn't believe in evolution? Or, global warming. Or, women's rights. Or, stem cell research."
Here is what I wrote (with slight amendments):
GEORGE W. BUSH
We have to separate the man from the office. Many people do not like George W. Bush at all as a person, but we should not focus on whether we like his personality, which is a personal thing, but rather on the policies and actions of his administration. To like a product, we do not need to like the product's maker, and vice versa.
Globally, I think we greatly overestimate the importance of the US President in the great scope of things. Dubya has inherited his father's business, as it were. This happens all the time in the business world.
I myself find Dubya amusing, somewhat hapless intellectually, but strong in his core of decisionmaking, which a President needs to be.
This decisionmaking is one of the primary responsibilities of a President of the United States. He MUST decide, or, as fromer President Harry S. Truman had written on a plaque on his desk: "The buck stops here". The President can not "pass the buck" to someone else. He must act and he is held responsible for what he does.
It is one thing to be a pundit but it is another thing to actually carry and have to exercise responsibility.
To judge any person accurately in his position, we should honestly ask ourselves: What would we do if WE carried the actual responsibility? If we did so honestly, we would find that we would in fact often act differently than what we profess. Indeed, people often say one thing but do another. It is the latter that counts.
AMERICA
In addition, rather than to concentrate solely on the President and his office, we should come to terms with the realization that George W. Bush symbolizes a great portion of America generally. Millions of Americans put Dubya where he is. So, it is not Bush that is the problem, if a problem exists, it is the America who put him in his office that is the problem, if a problem exists. Bush is not at fault for that, no more than he is for the vagaries of nature such as Hurricane Katrina, which devastated New Orleans and led to other unnecessary difficulties there, in part because of long-term and short-term failings by thousands of other Americans.
It is, in any case, quite wrong, stupid and foolish on the part of many commentators to constantly see George W. Bush as the scapegoat for things they dislike about current events. That merely shows a superficiality of analysis which prefers to deal in personalities rather than getting down to the brass tacks of causality for the world's existing problems.
The fact is, America is the world's most powerful nation and it exercises its power to protect itself, which is to be expected. Some like this exercise of power and some do not, but no one can deny that George W. Bush is acting in what he views to be America's best interests. All the rest is a difference of opinion on how to do it.
EVOLUTION and CREATIONISM
Bush's views on evolution have little effect in a country where the number of dogmatic creationists is steadily increasing. In my view, the proof that men evolved from the apes is found in many of mankind's adamant stand that they do not. Frankly, the "intelligent design" of God would have created a smarter creature than what we see on Earth currently. Most men still have one leg in their former chimpanzee mentality. On the other hand, if we view time as endless in infinity, then our being here is nothing more than the snap of the fingers - i.e. in this sense, the creationists are not wrong. Whether we "evolved" or "were created" is simply a matter of your time reference, nothing more. On a time spectrum of trillions of years and beyond, man's presence is not even a second of time by comparison.
GLOBAL WARMING
Global warming is not high on my anti-Bush priority list - execept as explained below - because George W. alone can do little about the fact that we have 6 billion people on this planet and steadily increasing.
Instead of rewarding underdeveloped countries with money for stupidities I would reduce all US foreign aid to the provision of birth control devices and anti-baby pills. Go after the cause of the problem.
In this connection, the emotional issue of abortion in the USA is absurd when one sees the inhabitants of the mass of underdeveloped nations increasing their populations dramatically. The world is becoming a dangerous playground for overpopulated elements whose sheer mass presence is the major problem of global warming (and other dire problems). Imagine the pollution and warming when every human being (and 10 billion inhabitants is not that far off) has an automobile and is defecating his wastes into the rivers and oceans. Appalling.
WOMEN'S RIGHTS
Women control 70% of the assets in the Western world - mostly through inheritance, because they also live on average 7 years longer than men do (those at least are the statistics here in Europe). When the women go on the warpath about women's rights, is it really justified by such major parameters as above? Do men have more or fewer actual rights than the ladies? Why do men not live as long as women? Is it because a man's life has more stress? Is that a right?
If women want to be chairpersons of Hewlett-Packard - great - more power to them. For that, I hope then to have more time to be on the golf course. As for the controversial abortion issue and the right of women to their own bodies - now really, how many people are we talking about here? The solution is - if some are aborting more, we others should reproduce more. Such a simple remedy. Raise up a contradictory movement, as it were. The possibilities are immense.
STEM CELL RESEARCH and MEDICAL CLONING
I can share no real understanding of why stem cell research or medical cloning are so emotionally controversial. Here is what I read at the government NIH website:
"The use of embryonic stem cells is controversial. The controversy is based on the belief by opponents that a fertilized egg is fundamentally a human being with rights and interests that need to be protected. Those who oppose stem cell research do not want fetuses and fertilized eggs used for research purposes.
Supporters of stem cell research argue that the fertilized eggs are donated with consent from each couple and would be discarded anyway. Therefore, there is no potential for those fertilized eggs to become human beings. Fertilized eggs are not (at this time) being created specifically for stem cell research.
As with any moral and ethical issue, the controversy surrounding stem cell research will likely continue for quite some time. Supporters believe that an aggressive federal program is needed before the potential of stem cell research can be realized. At this time, federal funding is limited to stem cell lines that already exist. The funding does not support further destruction of fertilized eggs. This is based on the idea that the "life and death" decision on the existing stem cell lines has already been made. Thus, a compromise has been made that supports medical research and respects the fundamental moral issues associated with the potential for life."
What does Dubya have to do with any of this? Veritably nothing. This is merely the progress of science and the inevitable controversy about that progress and the possibiities that it opens. Stem cell research is e.g. allowed in the United Kingdom but there are legitimate legal issues which need to be managed, so that there is always a middle road to be found down the road.
See generally ISSCR
Europe
European Union
Modern genetics will lead to many new things that are different than what happened in previous eras and which frighten the uninformed masses. That is to be expected. It is also to be expected that there will be opposition and need for regulation.
DUBYA or DONTYA
I judge Dubya and the Bush administration by things that affect me directly - Don't You?- and those are the issues of security and the economy.
I am a staunch Bush supporter on foreign policy. This is a tough world out there and you have to get rid of the crazies and all who support them. You do not wait for rogue states to start selling nuclear weapons to the world.
On domestic policy, I am anti-Bush because he made absolutely needless tax cuts for the rich which have brought nothing for the nation's economy. The rich put that money - originally a plus in the treasury under President Clinton - back into the treasury as loans (federal securities) for which the rest of the country now has to pay taxes to pick up the interest payments. This was a stupid redistribution of monies which the middle class has to bear so that the rich have more money.
Many other so-called issues of our time are tangential issues which have little or no impact on my life - or yours.
.
Permalink : Andis Kaulins : 9/21/2005 01:31:00 PM
LAW PUNDIT 9/21/2005 01:26:00 AM [Home]
[Print]
The Importance of Evidence
One area in which the legal community is lax is in inculcating a proper appreciation of EVIDENCE in the other arts and sciences.
Roger Schank of Carnegie-Mellon University writes the following, inter alia, at Edge 168 regarding the teaching of evolution or intelligent design in the schools.
"Here is what we should teach our children: how to think; how to look at evidence and determine reasonable conclusions that can be derived from the evidence; how to know what constitutes evidence; how to interpret evidence.
Stop telling children facts. Do that in church or wherever religious indoctrination takes place. School should not be about indoctrination but reasoned thought. Teach children to come to their own conclusions. Stop confusing religion with thought."
.
Permalink : Andis Kaulins : 9/21/2005 01:26:00 AM
The Importance of Evidence
One area in which the legal community is lax is in inculcating a proper appreciation of EVIDENCE in the other arts and sciences.
Roger Schank of Carnegie-Mellon University writes the following, inter alia, at Edge 168 regarding the teaching of evolution or intelligent design in the schools.
"Here is what we should teach our children: how to think; how to look at evidence and determine reasonable conclusions that can be derived from the evidence; how to know what constitutes evidence; how to interpret evidence.
Stop telling children facts. Do that in church or wherever religious indoctrination takes place. School should not be about indoctrination but reasoned thought. Teach children to come to their own conclusions. Stop confusing religion with thought."
.
Permalink : Andis Kaulins : 9/21/2005 01:26:00 AM
LAW PUNDIT Tuesday, September 20, 2005 9/20/2005 08:00:00 PM [Home]
[Print]
Krauthammer on Roberts
Charles Krauthammer has a beautifully written September 16, 2005 op-ed at the Washington Post which he titles Roe v. Roberts.
What we like about Krauthammer is his no-nonsense approach to commenting on current events.
As for Roberts, we agree when Krauthammer writes:
"[Roberts] is a perfectly reasonable traditional conservative, who will be an outstanding chief justice. He is just not a judicial revolutionary. If you're a conservative looking for a return to the good old days, you'll be disappointed. And if you're a liberal who lives for the good old days because that's all that liberalism has left, tell Chuck Schumer to relax."
By the way, even though Schumer has recently done some stupid things in his excerise of office, we think that he has done a good job - on balance - as Senator from New York. Nevertheless, we definitely oppose his "war stand" against Roberts. There are more important things for Congressmen to do than wage constant battle against judicial appointments and political nominations. A Senator should be a lawmaker and should be busy writing the laws that are necessary for the 21st century. There, the Senate and the House are way behind schedule.
.
Permalink : Andis Kaulins : 9/20/2005 08:00:00 PM
Krauthammer on Roberts
Charles Krauthammer has a beautifully written September 16, 2005 op-ed at the Washington Post which he titles Roe v. Roberts.
What we like about Krauthammer is his no-nonsense approach to commenting on current events.
As for Roberts, we agree when Krauthammer writes:
"[Roberts] is a perfectly reasonable traditional conservative, who will be an outstanding chief justice. He is just not a judicial revolutionary. If you're a conservative looking for a return to the good old days, you'll be disappointed. And if you're a liberal who lives for the good old days because that's all that liberalism has left, tell Chuck Schumer to relax."
By the way, even though Schumer has recently done some stupid things in his excerise of office, we think that he has done a good job - on balance - as Senator from New York. Nevertheless, we definitely oppose his "war stand" against Roberts. There are more important things for Congressmen to do than wage constant battle against judicial appointments and political nominations. A Senator should be a lawmaker and should be busy writing the laws that are necessary for the 21st century. There, the Senate and the House are way behind schedule.
.
Permalink : Andis Kaulins : 9/20/2005 08:00:00 PM
LAW PUNDIT Monday, September 19, 2005 9/19/2005 11:19:00 PM [Home]
[Print]
Convert Websites to Text Only - The Lift Text Transcoder
It may sometimes be useful and necessary - in law particularly - to convert website pages from a graphic-based to a text-based form.
The freeware LIFT Text Transcoder makes it possible to convert web pages to text-only versions. The manual states:
"LIFT Text Transcoder (or transcoder) is a web application that converts a web page into its text-only version on-the-fly by eliminating all page layout that is present in the original page and by hiding many accessibility defects.
The transcoder is useful for the website visitor, since it removes some accessibility issues and small defects like missing image ALTs or forms that are not properly linearized or flash objects. It can be used also by the web developer to determine if the reading order of the information presented in the page makes sense when read in the order that would be followed by a screen reader or speech browser.
The LIFT Text Transcoder - enter a URL at that link page to try it out - is useful for people and situations where:
- graphics cannot be seen (e.g. blind persons, text-only browsers, ...);
- sizes of the page elements have to changed (e.g. a low-vision persons that maximizes the browser windows to enlarge its contents; a PDA user who has to fit everything on a small screen);
- size of text that has to be changed (e.g. a low-vision person; a presenter that has to project a web page to an audience via a projector);
-links and buttons have to be easily located and operated (e.g. a person with motor disabilities that cannot move his/her hand with precision, like somebody with a broken arm);
-form fields need to be easily layed out to be used (e.g. a low vision person using a screen magnifier that restricts his/her field of vision)."
The options that are available for each text-only page so produced are:
"Change the current font size: larger | default | smaller
Current color mode is Black on White, other available modes: Yellow on Black | Black on Cream
Show textual links as buttons
Do not move navbars
Open not handled documents directly
Hide the Text/Graphical View Panel
Hide Text Only Options
Open the original version of this page."
.
Permalink : Andis Kaulins : 9/19/2005 11:19:00 PM
Convert Websites to Text Only - The Lift Text Transcoder
It may sometimes be useful and necessary - in law particularly - to convert website pages from a graphic-based to a text-based form.
The freeware LIFT Text Transcoder makes it possible to convert web pages to text-only versions. The manual states:
"LIFT Text Transcoder (or transcoder) is a web application that converts a web page into its text-only version on-the-fly by eliminating all page layout that is present in the original page and by hiding many accessibility defects.
The transcoder is useful for the website visitor, since it removes some accessibility issues and small defects like missing image ALTs or forms that are not properly linearized or flash objects. It can be used also by the web developer to determine if the reading order of the information presented in the page makes sense when read in the order that would be followed by a screen reader or speech browser.
The LIFT Text Transcoder - enter a URL at that link page to try it out - is useful for people and situations where:
- graphics cannot be seen (e.g. blind persons, text-only browsers, ...);
- sizes of the page elements have to changed (e.g. a low-vision persons that maximizes the browser windows to enlarge its contents; a PDA user who has to fit everything on a small screen);
- size of text that has to be changed (e.g. a low-vision person; a presenter that has to project a web page to an audience via a projector);
-links and buttons have to be easily located and operated (e.g. a person with motor disabilities that cannot move his/her hand with precision, like somebody with a broken arm);
-form fields need to be easily layed out to be used (e.g. a low vision person using a screen magnifier that restricts his/her field of vision)."
The options that are available for each text-only page so produced are:
"Change the current font size: larger | default | smaller
Current color mode is Black on White, other available modes: Yellow on Black | Black on Cream
Show textual links as buttons
Do not move navbars
Open not handled documents directly
Hide the Text/Graphical View Panel
Hide Text Only Options
Open the original version of this page."
.
Permalink : Andis Kaulins : 9/19/2005 11:19:00 PM
LAW PUNDIT 9/19/2005 07:51:00 AM [Home]
[Print]
Internet Archiving and the Law - UK, EU, USA, Australia
Is Internet Archiving Legal? See Legal issues reating to the archiving of Internet resources in the UK, EU, USA and Australia, a study undertaken for the JISC and Wellcome Trust, by Andrew Charlesworth, University of Bristol, Centre for IT and Law, Version 1. - 25 February 2003.
See also the International Internet Preservation Consortium (IIPC)
which writes about the consortium:
"Australia, Canada, Denmark, Finland, France, Iceland, Italy, Norway, Sweden, The British Library (UK), The Library of Congress (USA) and the Internet Archive (USA) acknowledged the importance of international collaboration for preserving Internet content for future generations and therefore decided to form a consortium called the International Internet Preservation Consortium.
The goals of the consortium are:
To enable the collection of a rich body of Internet content from around the world to be preserved in a way that it can be archived, secured and accessed over time.
To foster the development and use of common tools, techniques and standards that enable the creation of international archives.
To encourage and support national libraries everywhere to address Internet archiving and preservation."
Members of IIPC are:
Bibliothèque nationale de France
(National Library of France)
Quai François Mauriac
75706 Paris cedex 13 France
http://www.bnf.fr
Biblioteca Nazionale Centrale di Firenze
(National Library of Italy, Florence)
Piazza dei Cavalleggeri, 1
50122 Firenze Italy
http://www.bncf.firenze.sbn.it
iipc@bncf.firenze.sbn.it
Det Kongelige Bibliotek
(The Royal Library, Denmark)
Postbox 2149
DK-1016 Copenhagen Denmark
http://www.kb.dk
iipc@kb.dk
Helsingin yliopiston kirjasto -
Suomen Kansalliskirjasto
(Helsinki University Library,
The National Library of Finland)
PL 15 (Unioninkatu 36)
00014 HELSINGIN YLIOPISTO Finland
http://www.lib.helsinki.fi
hyk-iipc@helsinki.fi
Internet Archive
The Presidio of San Francisco
116 Sheridan Avenue
Box 29244
San Francisco, CA 94129 United States of America
http://www.archive.org
iipc@archive.org
Kungliga biblioteket Sveriges nationalbibliotek
(The Royal Library, National Library of Sweden)
Box 5039
S-102 41 Stockholm Sweden
http://www.kb.se
Landsbokasafn Islands - Haskolabokasafn
(National and University Library of Iceland)
Arngrimsgata 3
IS-107 Reykjavik Iceland
http://www.bok.hi.is
Library and Archives Canada
395, Wellington Street
Ottawa (Ontario) K1A 0N4Canada
http://www.collectionscanada.ca
iipc@lac-bac.gc.ca
Nasjonalbiblioteket
(The National Library of Norway)
P.O. Box 2674 Solli
NO-0203 Oslo Norway
http://www.nb.no
iipc@nb.no
National Library of Australia
Parkes Place
Canberra, ACT 2600 Australia
http://www.nla.gov.au
iipc@nla.gov.au
The British Library
96 Euston Road
London NW1 2DB United Kingdom
http://www.bl.uk
iipc@bl.uk
The Library of Congress
LM 637
Washington, D.C. 20540 United States of America
http://www.loc.gov
iipc@loc.gov
.
Permalink : Andis Kaulins : 9/19/2005 07:51:00 AM
Internet Archiving and the Law - UK, EU, USA, Australia
Is Internet Archiving Legal? See Legal issues reating to the archiving of Internet resources in the UK, EU, USA and Australia, a study undertaken for the JISC and Wellcome Trust, by Andrew Charlesworth, University of Bristol, Centre for IT and Law, Version 1. - 25 February 2003.
See also the International Internet Preservation Consortium (IIPC)
which writes about the consortium:
"Australia, Canada, Denmark, Finland, France, Iceland, Italy, Norway, Sweden, The British Library (UK), The Library of Congress (USA) and the Internet Archive (USA) acknowledged the importance of international collaboration for preserving Internet content for future generations and therefore decided to form a consortium called the International Internet Preservation Consortium.
The goals of the consortium are:
To enable the collection of a rich body of Internet content from around the world to be preserved in a way that it can be archived, secured and accessed over time.
To foster the development and use of common tools, techniques and standards that enable the creation of international archives.
To encourage and support national libraries everywhere to address Internet archiving and preservation."
Members of IIPC are:
Bibliothèque nationale de France
(National Library of France)
Quai François Mauriac
75706 Paris cedex 13 France
http://www.bnf.fr
Biblioteca Nazionale Centrale di Firenze
(National Library of Italy, Florence)
Piazza dei Cavalleggeri, 1
50122 Firenze Italy
http://www.bncf.firenze.sbn.it
iipc@bncf.firenze.sbn.it
Det Kongelige Bibliotek
(The Royal Library, Denmark)
Postbox 2149
DK-1016 Copenhagen Denmark
http://www.kb.dk
iipc@kb.dk
Helsingin yliopiston kirjasto -
Suomen Kansalliskirjasto
(Helsinki University Library,
The National Library of Finland)
PL 15 (Unioninkatu 36)
00014 HELSINGIN YLIOPISTO Finland
http://www.lib.helsinki.fi
hyk-iipc@helsinki.fi
Internet Archive
The Presidio of San Francisco
116 Sheridan Avenue
Box 29244
San Francisco, CA 94129 United States of America
http://www.archive.org
iipc@archive.org
Kungliga biblioteket Sveriges nationalbibliotek
(The Royal Library, National Library of Sweden)
Box 5039
S-102 41 Stockholm Sweden
http://www.kb.se
Landsbokasafn Islands - Haskolabokasafn
(National and University Library of Iceland)
Arngrimsgata 3
IS-107 Reykjavik Iceland
http://www.bok.hi.is
Library and Archives Canada
395, Wellington Street
Ottawa (Ontario) K1A 0N4Canada
http://www.collectionscanada.ca
iipc@lac-bac.gc.ca
Nasjonalbiblioteket
(The National Library of Norway)
P.O. Box 2674 Solli
NO-0203 Oslo Norway
http://www.nb.no
iipc@nb.no
National Library of Australia
Parkes Place
Canberra, ACT 2600 Australia
http://www.nla.gov.au
iipc@nla.gov.au
The British Library
96 Euston Road
London NW1 2DB United Kingdom
http://www.bl.uk
iipc@bl.uk
The Library of Congress
LM 637
Washington, D.C. 20540 United States of America
http://www.loc.gov
iipc@loc.gov
.
Permalink : Andis Kaulins : 9/19/2005 07:51:00 AM
LAW PUNDIT Friday, September 16, 2005 9/16/2005 05:39:00 PM [Home]
[Print]
The Song Happy Birthday to You is Copyrighted - A Copyright Case in Point
When we talk here at LawPundit about the law of the future and the problems that we are going to face and the cases that judges like John Roberts are going to have to decide, we are not merely theorizing.
A copyright case in point is one of the world's best known songs "Happy Birthday to You".
Did you know that this song is copyrighted and will continue to be so until the year 2030? Are you in doubt? Read Happy Birthday, We'll Sue.
In an ironic twist of fate, Prof. Lawrence Lessig, digital rights guru and founder of Creative Commons, was recently involved in a "Happy Birthday to You" case for the Free Culture Movement.
His account of the story points to the severe problems we still face in this legal field.
.
Permalink : Andis Kaulins : 9/16/2005 05:39:00 PM
The Song Happy Birthday to You is Copyrighted - A Copyright Case in Point
When we talk here at LawPundit about the law of the future and the problems that we are going to face and the cases that judges like John Roberts are going to have to decide, we are not merely theorizing.
A copyright case in point is one of the world's best known songs "Happy Birthday to You".
Did you know that this song is copyrighted and will continue to be so until the year 2030? Are you in doubt? Read Happy Birthday, We'll Sue.
In an ironic twist of fate, Prof. Lawrence Lessig, digital rights guru and founder of Creative Commons, was recently involved in a "Happy Birthday to You" case for the Free Culture Movement.
His account of the story points to the severe problems we still face in this legal field.
.
Permalink : Andis Kaulins : 9/16/2005 05:39:00 PM
LAW PUNDIT 9/16/2005 04:29:00 PM [Home]
[Print]
Law and the Future in the case of Roberts
The August, 2005 Law@Stanford Newsletter for alumni and friends of Stanford Law School refers inter alia to an August 28, 2005 New York Times article by Jeffrey Rosen, Professor of Law at George Washington University, entitled "Roberts v. the Future".
Rosen perspicaciously raises numerous important questions about law and "the future", especially the technological future. As Rosen predicts in that article - and as has actually subsequently happened - the sometimes myopic Senate hearings on the Roberts nomination may be masking the real issues.
Rosen writes:
"[T]he Supreme Court will, in all likelihood, be asked to decide a fascinating array of divisive issues that are now only dimly on the horizon. To try to identify more concretely what those issues might be, I recently canvassed a number of technology experts, bioethicists and legal scholars.
The topics that they discussed amount to a Brave New World of constitutional disputes. As Congress and the states pass legislation to address a host of futuristic issues, from the genetic enhancement of children to the use of brain scanning to identify criminal suspects, the laws will inevitably be challenged in court, raising novel and surprising questions about how to interpret our constitutional rights to privacy, equality and free expression. Rather than focusing on Roberts's past, the senators questioning him might get a better sense of his future on the Supreme Court by imagining the issues of the next generation. The court's response to those issues, far more than its resolution of cases that will be decided next year, will define the role it will play in the first decades of the 21st century."
Rosen covers:
Brain Fingerprinting and the Future of Privacy Rights
Genetic Screening and the Future of Personal Autonomy
D.N.A. and the Future of Affirmative Action
Old Age and Drug Legalization
Property, Free Expression and the Right to Tinker
e.g. "[D]uring the next decade or two there may be other, less familiar legal debates over the scope of rights involving private property -- in particular, the ability of corporations and entrepreneurs, through the use of copyright and patent law, to control a broad spectrum of intellectual property, from digital entertainment to genetic sequences....The guru of digital activism is the Stanford law professor and cyberspace visionary Lawrence Lessig, whom I recently reached by telephone in Spain. ''As life moves increasingly onto the Net and the capacity to control every aspect of our cultural capital increases almost to perfection, the question will be whether there is an affirmative right of access, to use and remix,'' Lessig said."
Fascinating stuff.
The article also contains some poignant anecdotes about Judge Roberts, all of which, in our opinion, indicate that this man is very competent for the office to which he has been nominated and very fit for the "future" of law.
.
Permalink : Andis Kaulins : 9/16/2005 04:29:00 PM
Law and the Future in the case of Roberts
The August, 2005 Law@Stanford Newsletter for alumni and friends of Stanford Law School refers inter alia to an August 28, 2005 New York Times article by Jeffrey Rosen, Professor of Law at George Washington University, entitled "Roberts v. the Future".
Rosen perspicaciously raises numerous important questions about law and "the future", especially the technological future. As Rosen predicts in that article - and as has actually subsequently happened - the sometimes myopic Senate hearings on the Roberts nomination may be masking the real issues.
Rosen writes:
"[T]he Supreme Court will, in all likelihood, be asked to decide a fascinating array of divisive issues that are now only dimly on the horizon. To try to identify more concretely what those issues might be, I recently canvassed a number of technology experts, bioethicists and legal scholars.
The topics that they discussed amount to a Brave New World of constitutional disputes. As Congress and the states pass legislation to address a host of futuristic issues, from the genetic enhancement of children to the use of brain scanning to identify criminal suspects, the laws will inevitably be challenged in court, raising novel and surprising questions about how to interpret our constitutional rights to privacy, equality and free expression. Rather than focusing on Roberts's past, the senators questioning him might get a better sense of his future on the Supreme Court by imagining the issues of the next generation. The court's response to those issues, far more than its resolution of cases that will be decided next year, will define the role it will play in the first decades of the 21st century."
Rosen covers:
Brain Fingerprinting and the Future of Privacy Rights
Genetic Screening and the Future of Personal Autonomy
D.N.A. and the Future of Affirmative Action
Old Age and Drug Legalization
Property, Free Expression and the Right to Tinker
e.g. "[D]uring the next decade or two there may be other, less familiar legal debates over the scope of rights involving private property -- in particular, the ability of corporations and entrepreneurs, through the use of copyright and patent law, to control a broad spectrum of intellectual property, from digital entertainment to genetic sequences....The guru of digital activism is the Stanford law professor and cyberspace visionary Lawrence Lessig, whom I recently reached by telephone in Spain. ''As life moves increasingly onto the Net and the capacity to control every aspect of our cultural capital increases almost to perfection, the question will be whether there is an affirmative right of access, to use and remix,'' Lessig said."
Fascinating stuff.
The article also contains some poignant anecdotes about Judge Roberts, all of which, in our opinion, indicate that this man is very competent for the office to which he has been nominated and very fit for the "future" of law.
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Permalink : Andis Kaulins : 9/16/2005 04:29:00 PM
LAW PUNDIT 9/16/2005 01:30:00 AM [Home]
[Print]
Speaking of the Future - Patents and Other Things that Matter
Speaking of the Future - Patents and Other Things that Matter
LAW PUNDIT 9/16/2005 12:09:00 AM [Home]
[Print]
Blog Search Launched at Google and Blogger
CaryGEE has called my attention to PC World's September 14, 2005 article, "Google Launches New Blog Search Tool" by Juan Carlos Perez of IDG News Service, where we find that Google has launched a beta blog search function at
Google Blog Search and at Blogger Blog Search Beta.
For an explanation of this feature, see Blogger's Blog Search FAQ or Google's Blog Search Help.
As written there:
"The goal of Blog Search is to include every blog that publishes a site feed (either RSS or Atom). It is not restricted to Blogger blogs, or blogs from any other service."
As a test, we tried searches for "internet law" (in quotation marks) and
"law of the future" (in quotation marks).
The latter led us to an "Edge" page quoting the Orwellian "law of the future" as providing that "any new technology that can be tried will be".
That certainly applies to "search".
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Permalink : Andis Kaulins : 9/16/2005 12:09:00 AM
Blog Search Launched at Google and Blogger
CaryGEE has called my attention to PC World's September 14, 2005 article, "Google Launches New Blog Search Tool" by Juan Carlos Perez of IDG News Service, where we find that Google has launched a beta blog search function at
Google Blog Search and at Blogger Blog Search Beta.
For an explanation of this feature, see Blogger's Blog Search FAQ or Google's Blog Search Help.
As written there:
"The goal of Blog Search is to include every blog that publishes a site feed (either RSS or Atom). It is not restricted to Blogger blogs, or blogs from any other service."
As a test, we tried searches for "internet law" (in quotation marks) and
"law of the future" (in quotation marks).
The latter led us to an "Edge" page quoting the Orwellian "law of the future" as providing that "any new technology that can be tried will be".
That certainly applies to "search".
.
Permalink : Andis Kaulins : 9/16/2005 12:09:00 AM
LAW PUNDIT Thursday, September 01, 2005 9/01/2005 12:27:00 PM [Home]
[Print]
The German Economy and Office Furniture Sales
The September 2005 edition of the German business magazine FACTS has a telling chart of the German market for office furniture since the year 2000, surely one very indicative gauge of the state of the German economy, which has been suffering greatly under Chancellor Schroeder's economically incompetent Red-Green political coalition.
This chart, created by the Interconnection Consulting Group , shows that the German office furniture market has dropped continuously from ca. € 2.5 billion (= German Milliarden) in the year 2000 to ca. € 1.4 billion in 2004. A further drop to somewhat less than ca. €1.4 billion is expected for 2005, with minimal projected increases in 2006 and 2007.
Not only is the sharp decrease in demand from 2000 to 2005 dramatic but it illustrates well the sluggish recessive state of the German economy generally.
Schroeder's foolhardy attempted solution to the German problem - through Hartz IV to take money away from the growing army of unemployed and through tax reductions to give that money to those who have enough already - has failed badly. Quite the contrary, in view of the upcoming elections, the opposition CDU/CSU political parties are campaigning with placards pointing out that 1000 jobs a day are still being lost under the current administration.
No country has ever resurrected its economy by taking money from the poor and making them even poorer and giving that money to the rich, as Schroeder has done. But many countries have recharged their economies by allowing the wealth that is in the country to work for the country's benefit, rather than to drive that wealth out of the country by political policies designed to curtail business and business investment.
The tenure of Schroeder and the Red-Green coalition in Germany has been an economic disaster for the country and we can all only hope that the German people are smart enough to throw them out on their ears in the upcoming election of September 18, 2005. It is high time for the Germans to acknowledge that Schroeder is the worst Chancellor ever in post-WWII Germany.
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Permalink : Andis Kaulins : 9/01/2005 12:27:00 PM
The German Economy and Office Furniture Sales
The September 2005 edition of the German business magazine FACTS has a telling chart of the German market for office furniture since the year 2000, surely one very indicative gauge of the state of the German economy, which has been suffering greatly under Chancellor Schroeder's economically incompetent Red-Green political coalition.
This chart, created by the Interconnection Consulting Group , shows that the German office furniture market has dropped continuously from ca. € 2.5 billion (= German Milliarden) in the year 2000 to ca. € 1.4 billion in 2004. A further drop to somewhat less than ca. €1.4 billion is expected for 2005, with minimal projected increases in 2006 and 2007.
Not only is the sharp decrease in demand from 2000 to 2005 dramatic but it illustrates well the sluggish recessive state of the German economy generally.
Schroeder's foolhardy attempted solution to the German problem - through Hartz IV to take money away from the growing army of unemployed and through tax reductions to give that money to those who have enough already - has failed badly. Quite the contrary, in view of the upcoming elections, the opposition CDU/CSU political parties are campaigning with placards pointing out that 1000 jobs a day are still being lost under the current administration.
No country has ever resurrected its economy by taking money from the poor and making them even poorer and giving that money to the rich, as Schroeder has done. But many countries have recharged their economies by allowing the wealth that is in the country to work for the country's benefit, rather than to drive that wealth out of the country by political policies designed to curtail business and business investment.
The tenure of Schroeder and the Red-Green coalition in Germany has been an economic disaster for the country and we can all only hope that the German people are smart enough to throw them out on their ears in the upcoming election of September 18, 2005. It is high time for the Germans to acknowledge that Schroeder is the worst Chancellor ever in post-WWII Germany.
.
Permalink : Andis Kaulins : 9/01/2005 12:27:00 PM
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