Fairly Unsurprising - the Google Books Decision

With its recent Google Books decision, the Second Circuit hasn’t necessarily broken new ground so much as – doing what courts from time immemorial have always done – applied existing law to a new situation.  The result, within this very discrete set of facts, can be summarized thus: 

- Full-text imaging and OCR-ing of books is okay if you do it for someone who owns a copy of that book and won’t use the scanned version to infringe the author’s rights.  Permitting the public to search the full text of the book falls within the fair use doctrine, provided the search results you provide are of only small portions of the book, do not substantially harm the market for the book (such as when an entire recipe is revealed from a cookbook), and you don't make money from the process.  

This all seems quite reasonable, and may provide some new guidance for fair use advocates.  Its very reasonableness, however, makes it a wee bit suspect, since much of the existing law of copyright has very little to do with reasonableness and very much to do with what major content owners think it should be.  

If the Supreme Court considers and upholds the Second Circuit decision, look for content owners to lobby Congress for a legislative “fix” that will close what I’m sure many will consider to be an undesirable result.  

In the meantime, my personal takeaway from the Google Books decision is the existence of the Google Ngram viewer, which charts the frequency of word use over time among the many books that Google has scanned.  In the interest of scholarship, I offer the results of my own thoughtful exploration of this feature below.  

And to Your Right - the TTIP

With all the news about the Trans-Pacific Partnership (TTP) and debate about its effects on intellectual property and Internet user rights, we should also keep in mind another huge trade deal that is in mid-negotiation: the Transatlantic Trade and Investment Partnership, or TTIP, between the US and the EU.  The TTIP is not nearly as far along as the TPP, but because of its similar potential to have a huge impact the US it also bears watching.

The TTIP has inspired huge protests in the EU, with hundreds of thousands of people gathering to protest it this past week in Berlin and other cities in Europe, and more than 3.2 million people signing an anti-TTIP petition that was delivered last week to the European Commission.  Many of the protestors' concerns relate to the TTIP's potential effect on European food safety and environmental laws, which are generally viewed to be tougher than those imposed in the US.

The TTIP isn't all about GMO and fracking, however.  It is intended to include provisions relating to intellectual property, and while they haven't been solidified yet, the Electronic Frontier Foundation nonetheless prepared a piece back in January of 2015 that nicely highlights some areas of potential concern.  

In any event, when that many people claim to oppose a trade deal that directly involves the US, it bears keeping an eye on what's going on.  The US media has been relatively quiet about the TTIP, so if you want to follow along you'll be best served to see what the international press has to say about it.

 

Good Points on the TPP from the EFF

The Electronic Frontier Foundation has penned an excellent analysis of the IP provisions of the Trans-Pacific Partnership text that you can read in full here.

Something that I did not appreciate when I read the leaked language of the IP section was how the restrictions applied to users tend to be mandatory, while the rights given to them tend to be discretionary.  Which of course makes sense if you accept the contention that major content providers significantly influenced the (secret) negotiations the led to the TPP.  

Frankly, much of the IP language of the TPP tends to impose the regimes currently in place in the US, which is why it may be harder for me to be shocked to see them in this document.  At any rate, the EFF's analysis offers a fresh perspective on what the appropriate limits should be on both content owner rights and user rights.  Good reading.

Let's Take Our Time Before We Freak Out About the TPP

While I am not a big fan of the way the Trans-Pacific Partnership Agreement was negotiated or has been ballyhooed by the Obama administration, the fact remains that it is the text of the TPP that needs to be the focus of our attention going forward.

Wikileaks has just released a the IP Rights Chapter of the TPP, or at least the version that existed as of October 5, 2015. 

Based on the version released by Wikileaks, The Guardian article linked here says that the TPP will "give signatories the ability to curtail legal proceedings if the theft of information is 'detrimental to a party’s economic interests, international relations, or national defense or national security' – in other words, presumably, if a trial would cause the information to spread."

I'm not sure I agree. The text in question (Article Q.Q.H.8.3) says that "a Party (any of the countries who sign on to the TPP) may, where appropriate, limit the availability of such criminal procedures [to prosecute trade secret theft], or limit the level of penalties available, TO one or more of the following cases: . . . . (e) the acts are detrimental to a Party's economic interest, international relations, or national defense or national security."

Note the "TO," which I highlighted. This suggests that a country may limit its criminal prosecution of trade secret theft TO situations where the theft is detrimental to the country's economic interest.

The Guardian's interpretation effectively replaces the word "TO" with the word "IN." Doing so substantially changes the meaning of this section. If a country can "limit the availability of such criminal procedures . . . IN . . . one or more of the following cases," then the country can restrict application of existing laws in situations where "the acts are detrimental to a Party's economic interest" etc.

But I don't think that's what the provision is trying to say.

Certainly this is one area that could use some clarification before it's up for ratification.