11/14. The U.S. District Court (SDNY) released its opinion [30 pages in PDF] in Authors Guild v. Google, the landmark book scanning copyright infringement case filed back in 2005, granting summary judgment to Google on the affirmative defense of fair use. Although, the issue will likely be decided by the Court of Appeals, if not the Supreme Court.

Introduction. This is a huge victory for Google and its university library partners, and a defeat for book authors and other creators of copyrighted works subject to mass digitization.

The District Court opined that "all society benefits" from Google's business model. It stretched the language of the fair use statute and judicial precedent to preserve these societal benefits.

Leading book publishers reached a settlement with Google in a parallel case last year. See, story titled "Google and Five Book Publishers Settle 2005 Copyright Infringement Action" in TLJ Daily E-Mail Alert No. 2,464, October 18, 2012.

The Authors Guild did not also name as defendants in this action Google's library partners, which provided the books for scanning, and received back digital copies.

The Authors Guild's Paul Aiken stated in a release that "We disagree with and are disappointed by the court’s decision today".

He continued that "This case presents a fundamental challenge to copyright that merits review by a higher court. Google made unauthorized digital editions of nearly all of the world's valuable copyright-protected literature and profits from displaying those works. In our view, such mass digitization and exploitation far exceeds the bounds of fair use defense." Hence, "We plan to appeal the decision."

The Authors Guild and Google have attempted, but failed, to reach a settlement that can win court approval. Appellate proceedings are likely to proceed.

Moreover, the nature of this case is such that, regardless of the disposition by the three judge panel of the U.S. Court of Appeals (2ndCir), there may also be an en banc panel opinion, and a petition for writ of certiorari to the Supreme Court, which that Court might grant. Hence, the legal issue of whether mass digitization of copyrighted works without authorization is protected fair use is not likely to be resolved for several years.

The opinion is 30 pages. Given the importance of this case, its first impression status, its long history, the intricacy of the facts, and the complexity of fair use analysis, this opinion is brief under the circumstances. The presiding Judge, Denny Chin, may well contemplate that his opinion will soon be displaced by an appellate opinion.

Public Policy Basis of Opinion. The District Court opinion provides only a cursory ten page analysis in which applies the facts of Google's copying to each of the four prongs of the fair use statute. (See, pages 16-25.) It relies significantly upon an understanding of what would make good policy.

Judge Chin wrote, "In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits." (See, page 26.)

The opinion devotes only a single paragraph to fair use analysis of copies given to the participating libraries.

This is a thin opinion short on legal analysis. Judge Chin does not lack a deep understanding of copyright law. He is not lazy. He does not lack for highly qualified law clerks. Yet, this opinion repeatedly disposed of key issues with a few brief sentences that lack legal analysis. Judge Chin may have been so brief because he knew that no matter how thorough or how well he wrote, his judgment would be appealed, and the opinion of a three judge panel of the Court of Appeals (if not an en banc panel, or the Supreme Court) will inevitably supplant his opinion.

In addition, not only has Judge Chin written an opinion that makes a public policy choice, his application of the statute to the facts of the case runs far adrift of the text of the statute.

Facts. The opinion states that "As for the Library Project, Google has scanned more than twenty million books, in their entirety", and "has provided digital copies of millions of these books to the libraries", but "Google did not seek or obtain permission from the copyright holders to digitally copy or display verbatim expressions from in-copyright books", and it "has not compensated copyright holders for its copying of or displaying of verbatim expression from in-copyright books or its making available to libraries for downloading of digital copies of in-copyright books scanned from their collections."

It summarizes Google's use of optical character recognition (OCR) "technology to generate machine-readable text, compiling a digital copy of each book."

Then, "Google analyzes each scan and creates an overall index of all scanned books. The index links each word or phrase appearing in each book with all of the locations in all of the books in which that word or phrase is found. The index allows a search for a particular word or phrase to return a result that includes the most relevant books in which the word or phrase is found."

"Users of Google's search engine may conduct searches, using queries of their own design. ... In response to inquiries, Google returns a list of books in which the search term appears." Google also provides users access to excerpts from copyrighted books, for which it uses the term "snippet".

Statute. The exclusive rights of copyright are codified at 17 U.S.C. § 106. The fair use defense to infringement of these exclusive rights is codified at 17 U.S.C. § 107.

The preamble states in part that notwithstanding the exclusive rights of copyright, "the fair use of a copyrighted work, ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." (Parentheses in original.)

Then, Section 107 provides a four part guidance for the District Court: "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work."

In this opinion, other than public policy considerations, the most important finding for Judge Chin was his conclusion that there is a "transformative use". This phrase, and even the word "transformative", are conspicuously absent from the fair use statute.

In contrast, Section 106 provides that "the owner of copyright under this title has the exclusive rights" to prepare and to authorize "derivative works based upon the copyrighted work". Section 101 defines a "derivative work” to include any "form in which a work may be ... transformed".

Chin's Fair Use Analysis. The District Court considered these four parts in numerical order.

The first prong is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes".

The District Court concluded that because "Google's use of the copyrighted works is highly transformative", this prong "strongly favors a finding of fair use", notwithstanding the fact that Google is a commercial enterprise that benefits commercially from its book scanning. The Court wrote that "Google Books serves several important educational purposes." (See, pages 19-22.)

The District Court also wrote that this prong is "key".

The second prong is "the nature of the copyrighted work". The District Court concluded that this prong weighs in favor of a finding of fair use solely on the basis that most of the copied works are non-fiction books. (See, pages 22-23.)

The third prong is "the amount and substantiality of the portion used in relation to the copyrighted work as a whole". The book scanning program involves copying of the entirety of every book covered by the program. One could not conceive a hypothetical in which a greater amount or portion is copied. Nevertheless, Judge Chin wrote that "On balance, I conclude that the third factor weighs slightly against a finding of fair use." (See, pages 23-24.) The word "slightly" is in the least an understatement.

The fourth prong is "the effect of the use upon the potential market for or value of the copyrighted work."

The District Court wrote that "a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders", and therefore concluded "that the fourth factor weighs strongly in favor of a finding of fair use". (See, pages 24-25.)

This scanning program, and this case, are over eight years old. Yet, the District Court's opinion contains no findings of fact, and no references to data, regarding the actual impact upon the market for any of the copied books.

Reaction. The Computer and Communications Industry Association's (CCIA) Matt Schruers stated in a release that "This ruling is a vindication for transformative technologies online. Judge Chin's opinion makes unmistakably clear that the public's access to revolutionary tools like Book Search, which advance research and understanding, and expand access to underserved populations, should not be limited by formalistic objections to scanning and indexing."

The Library Copyright Alliance, a coalition of the American Library Association (ALA), Association of College & Research Libraries (ACRL), and the Association of Research Libraries (SRL), issued a release that praises the opinion.

The National Federation of the Blind's (NFB) Marc Mauer stated in a release that "The announcement of this ruling is a joyful occasion for all blind Americans because it paves the way for full and equal access by the blind and others with print disabilities to the knowledge contained in millions of books. We are pleased that the court explicitly recognized access to information by people with disabilities as a benefit of the Google Books Project."

Google released no statement, and its attorneys (Durie & Tangri) declined to talk with TLJ. The Authors Guild released a statement (quoted and hyperlinked above), but its attorneys (Boni & Zack) did not return a phone call, and an Authors Guild spokesman declined to speak with TLJ.

11/14. The following is a summary of the history of Authors Guild v. Google, and several related cases involving unauthorized scanning of books under copyright, including McGraw Hill v. Google and Authors Guild v. HathiTrust.

Authors Guild v. Google and McGraw Hill v. Google. The Authors Guild filed a class action complaint against Google in the U.S. District Court (SDNY) on September 20, 2005. See, story titled "Author's Guild Sues Google for Copyright Infringement" in TLJ Daily E-Mail Alert No. 1,218, September 21, 2005. The just issued opinion is in this case.

This case is Authors Guild, et al. v. Google, U.S. District Court for the Southern District of New York, D.C. No. 05-CV-8136-DC, Judge Denny Chin presiding. He was a District Court Judge when the case was filed. He was elevated to the U.S. Court of Appeals (2ndCir) in 2010. However, he continues to sit by designation in the District Court proceeding.

Various large book publishers, including McGraw Hill, filed a complaint against Google in the same District Court on October 19, 2005. See, story titled "Major Book Publishers Sue Google for Digitizing Copyrighted Books" in TLJ Daily E-Mail Alert No. 1,237, October 20, 2005.

That case is McGraw Hill Companies, Inc., Pearson Education, Inc., Penguin Group (USA) Inc., Simon & Schuster, Inc. and John Wiley & Sons, Inc. v. Google Inc., U.S. District Court for the Southern District of New York, D.C. No. 05-CV-8881. Judge Chin presided in that case also.

Both complaints alleged copyright infringement in connection with Google's scanning and distributing books under copyright without authorization.

See also, story titled "University Publishers Accuse Google of Systematic Infringement of Copyright on a Massive Scale" in TLJ Daily E-Mail Alert No. 1,142, May 25, 2005, story titled "Google, Publishers and Authors Debate Google's Print for Libraries Program" in TLJ Daily E-Mail Alert No. 1,239, October 25, 2005, and story titled "Microsoft Counsel Says Google Systematically Violates Copyright" in TLJ Daily E-Mail Alert No. 1,547, March 6, 2007.

Google, the publisher plaintiffs and the Authors Guild attempted to conclude the litigation with a vast class action settlement, which was legislative in scope. The proposed settlement would have affected the rights of many not a party to the settlement, and given Google a competitive advantage over other book scanning businesses.

Google, publishers and the Authors Guild announced their original proposed class action settlement in October of 2008. They announced an amended agreement in November of 2009. See, story titled "Amended Settlement Agreement Filed in Google Books Case" in TLJ Daily E-Mail Alert No. 2,015, November 16, 2009.

The Department of Justice (DOJ) filed pleadings criticizing components of the agreements. See, story titled "DOJ Files Pleading in Google Books Case" in TLJ Daily E-Mail Alert No. 1,985, September 21, 2009, and story titled "DOJ Criticizes Amended Google Books Settlement" in TLJ Daily E-Mail Alert No. 2,043, February 12, 2010.

Eventually, Judge Chin rejected the proposed settlement. He concluded the Amended Settlement Agreement (ASA) [173 pages in PDF] "is not fair, adequate, and reasonable", as required by Rule 23, Federal Rules of Civil Procedure. See, stories titled "District Court Rejects Google Books Class Action Settlement" in TLJ Daily E-Mail Alert No. 2,206, March 22, 2011, and "Orphan Works and the Court's Rejection of the Google Book Deal" in TLJ Daily E-Mail Alert No. 2,207, March 23, 2011.

Subsequently, Google and the publisher plaintiffs reached a separate settlement one year ago. See, story titled "Google and Five Book Publishers Settle 2005 Copyright Infringement Action" in TLJ Daily E-Mail Alert No. 2,464, October 18, 2012.

This left Authors Guild v. Google pending.

Authors Guild v. HathiTrust. There is a related action in the same District Court, Authors Guild v. HathiTrust. However, that case was before a different Judge, Harold Baer. It is now on appeal to the 2nd Circuit.

The District Court held in its decision of October 10, 2012 that mass copying of library books for the purposes of full text searches, preservation, and access for people with certified print disabilities, constitutes fair use. The District Court did not rule on the "orphan works" issue in that case.

That case is Authors Guild, et al. v. HathiTrust, U.S. District Court for the Southern District of New York, D.C. No 11-CV-6351-HB.

The Authors Guild and others filed their original complaint [26 pages in PDF] on September 12, 2011 against the University of Michigan, University of California, the University of Wisconsin, Indiana University, and Cornell University.

These five universities are involved in the mass book digitization programs pursuant to contracts with Google that are also at issue in Authors Guild v. Google. The HathiTrust is a name used by these universities, and others, for their aggregation of these and other digital copies. Google is not a defendant in this action.

The original complaint alleged "systematic, concerted, widespread and unauthorized reproduction and distribution of millions of copyrighted books and other works". The complaint alleged that "approximately 73%" of the HathiTrust's collection is under copyright, and that this is "one of the largest copyright infringements in history".

An amended complaint added additional parties, including the New York based Authors League Fund. The plaintiffs also include foreign author groups, and several individual authors.

The complaint also alleged that four of the defendant universities have announced an "Orphan Works Project" to make available online "so called ``orphan works´´ -- works that are protected by copyright but whose rights holders theoretically cannot be located by procedures established by the HathiTrust".

The plaintiffs sought declarations that the "Defendants' systematic digitization and distribution of copyrighted materials without authorization constitutes unlawful copyright infringment", and "Defendants' distribution and display of copyrighted works through the HathiTrust Orphan Works Project will infringe the copyrights of Plaintiffs and others likely to be affected".

The complaint also sought an injunction barring the defendants from "systematically reproducing, distributing and/or displaying" plaintiffs' copyrighted works, from "providing to Google for digitization copyrighted works without authorization", and from "proceeding with the HathiTrust Orphans Work Project, including without limitation, from displaying, distributing or otherwise making available any so-called orphan work protected by copyright".

The complaint did not seek damages. Four of the five defendants are political subdivisions of states, and therefore have 11th Amendment immunity from claims for damages for copyright infringement, pursuant an unfortunate series of Supreme Court's opinions. See, 1999 Rehnquist opinion in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627, invalidating the Patent and Plant Variety Protection Remedy Clarification Act, and 1999 Scalia opinion in College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, invalidating the Trademark Remedy Clarification Act.

Judge Baer wrote a sweeping decision in which he came down on the side of the universities on numerous issues.

He wrote that the defendants make available digital works in the HathiTrust for "full text searches" that do not provide access to the copyrighted text, for "preservation", and for "access for people with certified print disabilities". And, for the works labeled "orphan works" by the defendants, it makes works available "for full view". He added that after the filing of the complaint the "orphan works" program was "temporarily suspended".

The opinion does not disclose that the University of Michigan (UM) had published a list of works that it deemed to be "orphan works", only to be confronted by evidence that it had improperly listed numerous works, under copyright, with a living rights holders, there were available for sale. The UM promptly withdrew the list from its web site, and published short statement in which it acknowledged "a number of errors, some of them serious".

Judge Baer added that the "UM has not yet provided a new process for identifying Orphan Works, or even a timeline for when that might happen".

Judge Baer made no finding of bad faith by the UM. Invocation of the fair use defense is premised on good faith by the defendant. The UM arguably acted with bad faith in attempting to classify works as "orphan works". Such a finding could have served as the basis for rejecting the fair use defense as to the UM. But, Judge Baer made no such ruling.

Instead, Judge Baer held that all of the claims regarding the HathiTrust "Orphan Works Project" are not ripe.

He wrote that "The claims here are not fit for adjudication. Were I to enjoin the OWP, I would do so in the absence of crucial information about what that program will look like should it come to pass and whom it will impact."

Given that there is no "orphan works" exception to the exclusive rights of copyright, under either the Copyright Act, or court created rule, there is no sets of facts under which the defendants could have prevailed on an asserted "orphan works" exception. Hence, Judge Baer could have both found ripeness, and granted summary judgment, on the "orphan works" issue.

Next, Judge Baer rejected the argument that the availability of Section 108 (an exception to the exclusive rights of copyright that allows libraries to make a copies of certain works for specified purposes) precludes a finding that Section 107 (an exception to the exclusive rights of copyright for fair use) allows infringement.

Then, Judge Baer made the most critical ruling -- that copying for the purposes of full text searches, preservation, and for access for people with certified print disabilities, constitutes fair use.

Judge Baer, like Judge Chin, rendered a ruling on fair use in large part based on public policy considerations.

See also, story titled "District Court Disposes of Authors Guild's Book Scanning Case Against Universities" in TLJ Daily E-Mail Alert No. 2,468, November 2, 2012.

ASMP v. Google. There is also a related infringement action involving unauthorized scanning of photographs and other visual works under copyright. It was filed on April 7, 2010. That case is American Society of Media Photographers, Inc. et al. v. Google, Inc., U.S. District Court for the Southern District of New York, D.C. No. 10-CV-2977.

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The House will meet at 12:00 NOON for morning hour, and at 2:00 PM for legislative business. Votes will be postponed until 6:30 PM. The House will consider several items under suspension of the rules, including HR 2061, the "Digital Accountability and Transparency Act of 2013". See, Rep. Cantor's schedule.

The Senate will meet at 2:00 PM.

2:30 PM. The Senate Homeland Security and Government Affairs Committee (SHSGAC) will hold a hearing titled "Beyond Silk Road - Potential Risks, Threats, and Promises of Virtual Currencies". The witnesses will be __. See, notice. Location: Room 342, Dirksen Building.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its August 27, 2013 Public Notice (PN) that seeks to refresh the record in its phone bill cramming proceedings. This PN is DA 13-1807 in CG Docket Nos. 11-116 and 09-158, and CC Docket No. 98-170. See, notice in the Federal Register, Vol. 78, No. 192, October 3, 2013, at Pages 61250-61251, and story titled "FCC Again Seeks Comments on Phone Bill Cramming" in TLJ Daily E-Mail Alert No. 2,593, September 2, 2013. The FCC adopted and released its last Further Notice of Proposed Rulemaking (FNPRM) [79 pages in PDF] on cramming on April 27, 2012. It is FCC 12-42 in the same dockets.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking [94 pages in PDF] regarding the provision and marketing of Internet Protocol Captioned Telephone Service (IP CTS). The FCC adopted and released this item on August 26, 2013. It is FCC 13-118 in CG Docket Nos. 13-24 and 03-123. See, notice in the Federal Register, Vol. 78, No. 170, September 3, 2013, at Pages 54201-54209.

EXTENDED FROM NOVEMBER 1. Extended Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking and Notice of Inquiry (FNPRM & NOI) regarding human exposure to RF electromagnetic fields. The FCC adopted this item on March 27, 2013, and released it March 29, 2013. It is FCC 13-39 in ET Docket Nos. 03-137 and 13-84. See, notice in the Federal Register (FR), Vol. 78, No. 107, June 4, 2013, at Pages 33654-33687. See also, story titled "FCC Addresses Cellphone RF Exposure" in TLJ Daily E-Mail Alert No. 2,543, April 1, 2013. See, Public Notice (DA 13-2025) at page 6 extending deadlines, and notice in the FR, Vol. 78, No. 212, November 1, 2013, at Pages 65601-65602..

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. See, Rep. Cantor's schedule.

POSTPONED. 8:00 - 10:00 AM. Broadband Census News LLC will host a panel discussion titled "Changes to Patent Law and the Landscape for Broadband Innovation". The speakers will be __. Breakfast will be served. This event is open to the public. The price to attend is $47.12. See, notice and registration page. This event is also sponsored by Comcast, Google, and US Telecom. Location: Clyde's of Gallery Place, 707 7th St., NW.

9:00 AM - 5:00 PM. The Federal Aviation Administration's (FAA) RTCA Special Committee 222, Inmarsat AMS(R)S will meet. The agenda includes final review of the draft material for the DO-262 MOPS for Inmarsat's SwiftBroadband, IP backbone for aircraft. See, notice in the Federal Register, Vol. 78, No. 192, October 3, 2013, at Page 61446. Location: RTCA, Suite 910, 1150 18th St., NW.

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10:00 AM. The House Commerce Committee (HCC) will hold a hearing titled "Examining Federal Regulation of Mobile Medical Apps and Other Health Software". The witnesses will be Mike Marchlik (McKesson Technology Solutions), Jim Bialick (Newborn Coalition), Zachary Lemnios (IBM), Robert Jarrin (Qualcomm), and Leonard Lichtenfeld (American Cancer Society). Webcast. See, notice. Location: Room 2322, Rayburn Building.

10:00 AM. The House Science Committee (HSC) will hold a hearing titled "Is My Data on Healthcare.gov Secure?". The witnesses will be Morgan Wright (Crowd Sourced Investigations), Fred Chang (Southern Methodist University), Avi Rubin (Johns Hopkins University), and David Kennedy (TrustedSEC). See, notice. Location: Room 2318, Rayburn Building.

10:15 AM. The House Commerce Committee's (HCC) Subcommittee on Oversight and Investigations will hold a hearing titled "Security of Healthcare.gov". The witnesses will be Henry Chao (Centers for Medicare and Medicaid Services), David Amsler (Foreground Security, Inc.), Maggie Bauer (Creative Computing Solutions, Inc.), and Jason Providakes (MITRE Corporation). Webcast. See, notice. Location: Room 2123, Rayburn Building.

1:30 PM. The House Judiciary Committee's (HJC) Subcommittee on Courts, Intellectual Property and the Internet will hold a hearing titled "The Rise of Innovative Business Models: Content Delivery Methods in the Digital Age". The witnesses will be __. Webcast. See, notice. Location: Room 2141, Rayburn Building.

6:00 - 9:00 PM. The National Economists Club (NEC) will host an event titled "2013 Annual Members Dinner". The speaker will be Ben Bernanke, Chairman of the Federal Reserve Board (FRB). Location: Chamber of Commerce, 1615 H St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host an event titled "Global Trends in Spectrum Management". The speakers will be Robb Tanner (Office of the U.S. Trade Representative), David Goldman (Legal Advisor to FCC Commissioner Jessica Rosenworcel), Jennifer Manner (Echostar), Charla Rath (Verizon), Donna Bethea (Iridium Satellite), and __. CLE credits. Prices vary. No webcast. See, notice. Location: Dow Lohnes, 1200 New Hampshire Ave., NW.

EXTENDED FROM NOVEMBER 1. Extended deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Public Notice (PN) which seeks comments on the National Exchange Carrier Association's (NECA) proposed 2014 modification of the average schedule universal service high cost loop support formula. This PN is DA 13-1870 in FCC 05-337. See, Public Notice (DA 13-2025) extending deadlines (item 2, at page 3), and notice in the Federal Register, Vol. 78, No. 212, November 1, 2013, at Pages 65601-65602..

The House will meet at 10:00 AM for morning hour, and at 12:00 NOON for legislative business. See, Rep. Cantor's schedule.

9:00 AM. The U.S. China Economic and Security Review Commission (USCESRC) will release its 2013 Report to the Congress. The speakers will include Chairman William Reinsch and Vice Chairman Dennis Shea. Location: Room 2212, Rayburn Building.

RESCHEDULED FROM OCTOBER 9. 9:00 - 10:30 AM. The Information Technology & Innovation Foundation (ITIF) will host a panel discussion titled "Next-Gen Data Centers: Bringing Energy Efficiency to Government". The speakers will be Rep. Anna Eshoo (D-CA), Robert Atkinson (ITIF), Colin Coyle (Hewlett Packard), Dean Garfield (Information Technology Industry Council), Eric Masanet (Northwestern University), Kathy Snyder (Lockheed Martin) and Kathrin Winkler (EMC Corporation). Free. Open to the public. See, notice. Location: Room 122, Cannon Building, Capitol Hill.

RESCHEDULED. 9:30 AM. The U.S. International Trade Commission (USITC) will hold a hearing titled "Trade Barriers That U.S. Small and Medium Sized Enterprises Perceive as Affecting Exports to the European Union". See, notice in the Federal Register, Vol. 78, No. 216, November 7, 2013, at Pages 66950-66951. This relates to the Office of the U.S. Trade Representative's (OUSTR) ongoing negotiation of a Transatlantic Trade and Investment Partnership (TTIP) with the European Union (EU). See also, stories titled "EU and US Announce Beginning of Transatlantic Trade and Investment Partnership Negotiations" and "Obama Mentions Trans Pacific Partnership Trade Agreement" in TLJ Daily E-Mail Alert No. 2,523, February 13, 2013, and "Marantis Outlines Objectives of US EU TTIP Negotiations" in TLJ Daily E-Mail Alert No. 2,537, March 20, 2013. Location: USITC, 500 E St., SW.

10:00 AM. The House Foreign Affairs Committee will meet to mark up several bills, including HR 3470, a bill that would amend the Arms Export Control Act (AECA), and also affect the Department of Commerce's (DOC) Commerce Control List (CCL) and Export Administration Regulations (EAR). See, notice. Location: Room 2172, Rayburn Building.

RESCHEDULED FOR NOVEMBER 21. 10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Continued Oversight of U.S. Government Surveillance Authorities". The witnesses will be James Cole (DOJ Deputy Attorney General), John Inglis (Deputy Dirrector of the National Security Agency), and Robert Litt (General Counsel in the Office of the Director of National Intelligence). Webcast. See, notice. Location: Room 226, Dirksen Building.

11:15 AM. The House Judiciary Committee (HJC) will meet to mark up HR 3308, the "Innovation Act". See, manager's amendment and notice. Webcast. Location: Room 2141, Rayburn Building.

1:00 PM. The House Small Business Committee (HSBC) will hold a hearing titled "The Startup Movement". The HSBC notice states that "The purpose of the hearing is to examine the importance of startups to the economy and receive testimony on whether distinctions between startups and small businesses necessitate different policies." Location: Room 2360, Rayburn Building.

The House will meet at 9:00 AM for legislative business. See, Rep. Cantor's schedule.

9:00 - 10:30 AM. The Information Technology & Innovation Foundation (ITIF) will host a panel discussion titled "The Future of Moore’s Law: Semiconductor Innovation and the High Tech Economy". The speakers will be Robert Atkinson (ITIF), Ahmad Bahai (Texas Instruments), Mark Bohr (Intel), Sanjay Banerjee (University of Texas-Austin), Robert Colwell (DARPA), and Brian Toohey (Semiconductor Industry Association). Free. Open to the public. See, notice. Location: Room 485, Russell Building, Capitol Hill.

RESCHEDULED FROM NOVEMBER 20. 10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Continued Oversight of U.S. Government Surveillance Authorities". The witnesses will be James Cole (DOJ Deputy Attorney General), John Inglis (Deputy Dirrector of the National Security Agency), and Robert Litt (General Counsel in the Office of the Director of National Intelligence). Webcast. See, notice. Location: Room 226, Dirksen Building.

10:30 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology will hold a hearing titled "Oversight of FirstNet and the Advancement of Public Safety Wireless Communications". The witnesses will be __. Webcast. See, notice. Location: Room 2123, Rayburn Building.

1:30 - 4:30 PM. The Department of Homeland Security's (DHS) National Infrastructure Advisory Council (NIAC) will meet. The agenda includes discussion of President Obama's cyber security order ( Executive Order 13636) and the National Institute for Standards and Technology's (NIST) document [47 pages in PDF] titled "Preliminary Cybersecurity Framework". See, notice in the Federal Register, Vol. 78, No. 212, November 1, 2013, at Pages 65675-65676. Location: U.S. Patent and Trademark Office, 2800 South Randolph Street, Room 3C71, Arlington, VA.

Rep. Cantor's schedule states that no votes are expected in the House.

The House will not meet the week of November 25 through November 29. It will return from its Thanksgiving recess on Monday, December 2. See, House calendar for the 113th Congress, 1st Session.

11/14. This piece provides commentary on several aspects of the District Court's opinion in Authors Guild v. Google, including the District Court's reliance upon the fair use concept of "transformative use", the absence of market data or analysis in the opinion, and the issue of data security.

Transformative Use. The Authors Guild sued Google alleging copyright infringement. Google asserted the affirmative defense of fair use. The District Court found fair use, in significant part because it concluded that Google made a "transformative use" of the copyrighted works.

Fair use is codified by statute. It is the duty of the District Court to apply the statute. But, "transformative use" is not in the statute. Hence, this opinion is based upon principles not found in the statute. There is one Supreme Court opinion infers that the first prong of the fair use analysis extends to certain "transformative" uses. However, the case was restricted to parody of one song, while Google is copying all books, without any claim to parody.

In addition, there are Court of Appeals opinions that further expand the Supreme Court's "transformative" use holding, beyond parody, to also protect search engines that provide thumbnail copies of photographs that rights holders have published on the internet. However, the opinion in the present case goes well beyond these opinions. For example, Google is scanning books not available on the internet, and retaining on its servers, and providing to users, more than thumbnails.

What is now known as fair use was first set forth in the U.S. by a trial court opinion in Folsom v. Marsh, 9 F. Cas. 342 (CCD Mass. 1841). Supreme Court Justice Joseph Story, sitting as a trial court judge, wrote that the Court should "look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work."

The Copyright Act of 1976 included the first codification of fair use in Section 107.

But, the exclusive rights of copyright, codified at Section 106, includes the exclusive right to "to prepare derivative works based upon the copyrighted work". Moreover, Section 101 defines a "derivative work" as "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. ..." (Emphasis added.)

Thus, the statute alone would appear to warrant a rejection Judge Chin's concept of "transformative use" in his opinion in Authors Guild v. Google.

However, Judge Chin relied also upon recent judicial opinions that construe the fair use statute.

First, there is the one Supreme Court opinion. The March 7, 1994 opinion of the Supreme Court in Campbell v. Acuff-Rose Music, 510 U.S. 569, first held that the first prong of the fair use statute should extend to certain "transformative" uses.

The Supreme Court wrote that "The first factor in a fair use enquiry is ``the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.´´ § 107(1). This factor draws on Justice Story's formulation, ``the nature and objects of the selections made.´´"

The Supreme Court continued that "The enquiry here may be guided by the examples given in the preamble to § 107, looking to whether the use is for criticism, or comment, or news reporting, and the like, see § 107. The central purpose of this investigation is to see, in Justice Story's words, 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 facts of that case involved a parody of the song "Pretty Woman". The defendants did not copy the sound recording. Rather, they recorded a parody version that maintained the melody and guitar base, but made significant changes, especially in the words, in a manner that parodied the original.

While Judge Chin cited Campbell v. Acuff-Rose Music as authority for his application of "transformative use", he invoked the concept in a much different manner. The Supreme Court considered parody to be transformative. Google is engaging in verbatim copying, not parody. The Supreme Court based its ruling on the language in the preamble regarding criticism or comment. Google is not engaging in criticism or comment.

Some lower court opinions in recent years have strictly limited application of the concept of "transformative use" to that articulated by the Supreme Court. See for example, the 9th Circuit's opinion in Dr. Seuss Enterprises v. Penguin Books, 924 F.3d 1559 (1997), holding that the holding of Campbell v. Acuff-Rose Music is limited to parody of the copied work, and providing a strict definition of parody. Judge Chin's conclusion is inconsistent with Dr. Seuss, and some other opinions.

On the other hand, other lower courts have expanded the concept of "transformative use" to protect uses not endorsed by the Supreme Court. See especially, the 9th Circuit's opinion in Kelly v. Arriba Soft, 336 F.3d 811 (2003), and opinion in Perfect 10 v. Google, 508 F.3d 1146 (2007), both of which allowed as fair use thumb nail search engine copies of copyrighted photographs published on the internet. And see, the U.S. District Court's (SDNY) October 10, 2012 opinion in Authors Guild v. HathiTrust, regarding books.

Google and Judge Chin relied heavily upon these cases.

However, Judge Chin's ruling goes beyond those in Kelly and Perfect 10. First, in both of those cases the parties alleging infringement had placed their copyrighted photos on the internet, and hence made them accessible to the defendants' web crawlers. In contrast, in Authors Guild v. Google, Google copied books from paper that had not been placed on the internet by rights holders. Second, in Kelly and Perfect 10 the search engine did not retain full sized copies on its servers, while in the present case Google has.

While the opinions in Perfect 10, HathiTrust and Authors Guild v. Google all rely heavily upon the concept of "transformative use", and apply it Google's mass digitization projects, these opinions are way ahead of both the text of the statute and the one Supreme Court opinion on point. The Supreme Court may eventually decide that fair use and transformative use should be so transformed.

Alternatively, the Supreme Court may decide that it does not wish to take fair use law as far as the judges in these cases have taken it. It may decide that any such expansion of fair use would be a legislative decision for the Congress.

Economic Data and Analysis. This opinion is devoid of any sales or price data or economic analysis of markets, even though the fair use requires the District Court to study the "market", and the District Court has had ample time and opportunity to make are solid analysis of the impact of Google's copying upon actual markets for copied books.

This case might be compared and contrasted to another U.S. District Court case involving digital books, U.S. v. Apple. The District Court disposed of that case much more quickly. Apple and the publisher defendants initiated the actions that lead the Department of Justice (DOJ) to file suit in 2011. The DOJ filed its complaint alleging violation of antitrust law on April 11, 2012. The District Court ruled on July 20, 2013, and issued its final judgment on September 6, 2013.

Moreover, that District Court's 160 page opinion made detailed findings of fact regarding the impact of Apple's actions upon e-book prices and the e-book market. It also contains intricate economic analysis. One may not agree with the District Court's findings and analysis. But, the District Court indisputably received a vast amount of evidence and argument on these market issues, and quickly wrote an opinion with detailed market analysis.

The District Court is required to conduct market analyses in antitrust cases, such as U.S. v. Apple. In addition, the fair use statute requires the District Court to consider "the effect of the use upon the potential market for or value of the copyrighted work". Most infringement cases involve a single work, and most fair use motions are decided soon after the alleged infringement. An analysis of the effect upon the market is necessarily forward looking, predictive and speculative.

In contrast, in the present case, millions of books have been copied, and the program has been in operation since 2004. Judge Chin offered a brief and highly speculative conclusion regarding the "potential market" when he could have made data driven conclusions regarding the actual market.

There was ample opportunity to conduct market analysis. There are millions of items for statistical observation. The parties and court have had eight years to collect and analyze it. The Authors Guild asserted that markets have been impacted, and authors have been harmed, by Google's actions. Google asserted that authors have benefited from Google's actions. But, the opinion contains no findings regarding the impact upon the price or sales volume of any book, category of books, or books overall. It contains no findings regarding the impact upon consumer purchasing behavior. It contains no economic analysis.

Data Security. This opinion does not address data security. The just released opinion, and the District Court's 2012 opinion in Authors Guild v. HathiTrust, allow scanning, digitization, and storage by both Google and universities of books under copyright.

If these digitized works are stolen, and distributed via the internet by some entity that operates beyond the jurisdiction of the U.S. District Courts, the economic value of these works to the rights holders could be substantially destroyed.

University libraries lack expertise in cyber security. The mission of these libraries is to make stuff available, to many people, without any meaningful screening -- not to protect, exclude and secure. They also lack the incentive to protect digitized works from unauthorized access, copying, and further distribution. It is not their property. They do not stand to loose sales or licensing revenues if works are stolen. They are also vulnerable to insider theft.

Also, if the District Court's conclusion stands after appellate review, other businesses, and other universities may engage in similar unauthorized scanning of works under copyright. The number of targets for theft will thus increase. The risk of injury to authors will increase.

Amazon. The opinion does not address Amazon, or other of Google's competitors. Amazon has provided broad benefits to society with its online sale of hard copy books, creation of an online secondary market for hardcopy books, online sale of digital books, and online book search services.

Yet, Amazon, unlike Google, has worked cooperatively and by agreement with all rights holders. Amazon has played within the rules, as rights holders understand them. And, "all society benefits" from its efforts. Google has aggressively defied rights holders, acted by fiat, and profited from a business model that may yet be rejected by a higher court.

While the opinion addresses whether or not authors are harmed by Google's unauthorized book scanning, it does not address the competitive advantage that Google has gained over its competitors by its actions, and this court opinion.