Do New White House Flickr Image Restrictions Contravene Copyright Law?

This Slashdot post highlights the incongruity between US government copyright policy and the White House's recent restrictions on the uses of images posted to its Flickr photostream.

Government policy states, in part, that "[a] work that is a United States Government work, prepared by an officer or employee of the United States Government as part of that person's official duties, is not subject to copyright in the United States and there are no U.S. copyright restrictions on reproduction, derivative works, distribution, performance, or display of the work." This is consistent with the Copyright Act as well. Images on the White House Flickr photostream, however, now contain this restrictive legend: "This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph." (Example here.) It then goes on to prohibit the commercial use of the image in any way that suggests the endorsement of the subject.

Oddly enough, the Flickr page also contains a link to the Government Policy that disclaims a copyright interest in images that are United States Government works -- as most of the White House photostream images are.

Even more oddly, the restrictive legend is not the same for all images. This image of the President meeting with former president George H.W. Bush removes the word "only" from the restrictive legend, which changes its meaning considerably, from a restrictive one to an explanatory one: "This official White House photograph is being made available for publication by news organizations and/or for personal use printing by the subject(s) of the photograph." The lack of an "only" there suggests that others can use the image as well. Perhaps it's a partisan thing.

There is of course a tension between the rights that the creator of an image has in that image (which are addressed by copyright law) and those that the subject of the image has in that same image (which are addressed by publicity laws in most states that give individuals some rights over how their images are used for advertising or other purposes). This was highlighted in a case brought two years ago by the family of a Texas teenager whose picture was taken by a photographer and posted on Flickr with a Creative Commons Attribution License. The family sued when Virgin Mobile used the image in ads for its mobile phone service in Australia. The issue there was really not one of copyright, but of publicity.

The President recently experienced the same sort of situation, when the Weatherproof clothing brand used an image of the President wearing a Weatherproof brand jacket on a billboard ad in Times Square.

Perhaps what the White House means to say is best expressed in the second half of the restrictive legend it now posts with its Flickr images, which states that the images "may not be used in commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House." That legend is grounded in publicity law, not copyright, and is not inconsistent with the government disclaimer of copyright. It would perhaps be the better limitation for the White House to emphasize.

The Annual Super Bowl Copyright Post

Ars Technica had a nice post several days ago about copyright and The Super Bowl; this one focusing on the screen size limitation written into the Copyright Act. Two takeaways from the post, which is worth reading: first, it offers yet another example of how complex this area of the law is, and second, it reminds copyright owners to use common sense when making decisions about enforcement. Just because you can enforce a right doesn't always mean you should.

RIAA Fights Internet Broadcast of File-Sharing Hearing

As you may have heard, a Massachusetts federal district court judge recently granted the motion of the defendant in a file-sharing copyright infringement case brought by the RIAA to broadcast a pre-trial hearing over the Internet. Yesterday, that order was stayed so that the RIAA could appeal it to the First Circuit. The RIAA's mandamus petition is interesting reading. The main ground of the petition is essentially that the judge's order is against the rules, namely rule 83.3 of the local rules.

Really. Let's take a look at Rule 83.3.

-- (a) Recording and Broadcasting Prohibited. Except as specifically provided in these rules or by order of the court, no person shall take any photograph, make any recording, or make any broadcast by radio, television, or other means, in the course of or in connection with any proceedings in this court, on any floor of any building on which proceedings of this court are or, in the regular course of the business of the court, may be held. [Emphasis supplied]

Looks to me like the judge has some discretion there. But, the RIAA argues, allowing recording conflicts with the policies of the Judicial Conference of the United States. This appears to be a stronger argument -- the Judicial Conference has repeatedly come out against permitting the recording or broadcast of court proceedings. In a 2007 statement to Congress, Judge John Tenheim explained the bases for the opposition:

-- The Judicial Conference position is based on a thoughtful and reasoned concern regarding the impact cameras could have on trial proceedings. This legislation has the potential to undermine the fundamental right of citizens to a fair trial. It could jeopardize court security and the safety of trial participants, including judges, U.S. attorneys, trial counsel, U.S. marshals, court reporters, and courtroom deputies. The use of cameras in the trial courts could also raise privacy concerns and produce intimidating effects on litigants, witnesses, and jurors, many of whom have no direct connection to the proceeding. In addition, appearing on television could lead some trial participants to act more dramatically, to pontificate about their personal views, to promote commercial interests to a national audience, or to increase their courtroom actions so as to lengthen their appearance on camera. Finally, camera coverage could become a negotiating tactic in pretrial settlement discussions or cause parties to choose not to exercise their right to have a trial.

While few if any of those concerns apply in this case, there's no arguing that the Judicial Conference is not a fan of broadcasting contentious courtroom proceedings.

So is the RIAA simply defending the Judicial Conference against the actions of a wayward District Court judge? No; the RIAA is concerned that allowing the hearing to be broadcast will cause "irreparable harm." The nature of that harm?

-- Here, where the district court's interpretation of the Local Rule may well open the doors to a flood of applications by broadcasters seeking to record and broadcast other proceedings throughout the District of Massachusetts, there is necessarily a "sufficient showing of irreparable harm" to merit the exercise of this Court's power of mandamus.

So the RIAA is also defending the rest of the Massachusetts Federal Judiciary from the increased burdens of having to deal with this "flood of applications" from others seeking permission to broadcast other trials. A very noble position, to be sure, but of course the RIAA is also worried on its own behalf:

-- Nor is there any doubt that Petitioners would suffer irreparable harm if the proposed broadcast of the proceedings in this case is allowed to proceed.

By way of proof, the RIAA then offers the following explanation:

-- The Judicial Conference has repeatedly expressed the view that presence of cameras in district court proceedings "can do irreparable harm to a citizen's right to a fair trial."

That, however, is by no means proof that irreparable harm would occur in this case. The RIAA's next argument is rather ironic, given the nature of the dispute:

-- Petitioners are concerned that, unlike a trial transcript, the broadcast of a court proceeding through the Internet will take on a life of its own in that forum. The broadcast will be readily susceptible to editing and manipulation by any reasonably tech-savvy individual. Even without any improper modification, statements may be taken out of context, spliced together with other statements, and broadcast rebroadcast [sic] as if it were an accurate transcript.

Of course, a written transcript is even more susceptible to manipulation than is a video or audio recording. It's laughably easy to select statements out of context from a written transcript and present them in a way that is unfavorable to one side or the other. If anything, a video record would make any such manipulation more evident, with cuts and splices to the record appearing as odd "jumps" or "skips" in the recording or in the appearance of the speaker.

The RIAA saves what to me is its strongest argument for last: that the Beekman Center, which would host the broadcast, is strongly opposed to the RIAA's suits against alleged file sharers and is closely allied with the defense team. This, however, is the issue that is easiest to fix -- allow a relatively neutral party, such as a "traditional" news organization, to host the feed.

The RIAA, of course, has a legitimate reason to complain where the manner in which users copy or distribute its members' recordings reaches beyond the often-murky boundaries of fair use. Its vehement opposition to having this hearing broadcast appears to masquerade a real concern about looking bad before an Internet audience with a stated concern about protecting the integrity of the judical system. That's a little ironic in view of the RIAA's recent decision to more or less abandon the courts and let ISPs regulate offending users.

Read Wired's take on this here and here.

WhiteHouse.gov Uses Creative Commons Copyright License

Change.gov is now referring visitors to http://www.whitehouse.gov/. Behind the notice page, however, the website remains active, which is good to know given the amount of information deposited there.

The copyright policy is a bit simpler now, but still incorporates Creative Commons for third-party content:

Copyright Notice

Pursuant to federal law, government-produced materials appearing on this site are not copyright protected. The United States Government may receive and hold copyrights transferred to it by assignment, bequest, or otherwise.

Except where otherwise noted, third-party content on this site is licensed under a Creative Commons Attribution 3.0 License. Visitors to this website agree to grant a non-exclusive, irrevocable, royalty-free license to the rest of the world for their submissions to Whitehouse.gov under the Creative Commons Attribution 3.0 License.

Webinar -- Protecting Your Intellectual Property

On February 12, I am participating in a webinar titled "Protecting Your Intellectual Property." It's a "basics" type of presentation; if you read this blog and others like it, you probably know most of what we'll be talking about. However, please feel free to register or suggest it to friends or colleagues who would like a quick overview of the area.

Should ISPs be Compensated for Responding to RIAA Notices?

Following on my earlier post about the RIAA's apparent decision to move to a "three-strikes" approach to copyright enforcement comes this report of a small ISP that responds to music industry disconnect demands by asking for a billing address. It seems that copyright owners are not terribly interested in paying ISPs for the time and trouble it takes to disable an account.

In the view of this ISP, if the RIAA is going to expect ISPs to act as its enforcement arm, then it's reasonable for ISPs to expect to be compensated in return. At some level, this makes sense; courts impose filing fees on plaintiffs, and given that the RIAA's three-strikes policy will shortcut many of the legal procedures that slow enforcement, perhaps it's time for ISPs and the RIAA to agree on a sensible schedule for dealing with enforcement demands.

On the other hand, resisting enforcement until the bill is paid does not appear to be covered by the DMCA. Under the DMCA's Safe-Harbor provisions for ISPs, an ISP that receives proper notice of an alleged infringement is required to "respond[] expeditiously" to remove or disable access to the offending material. Assuming that the takedown request complies with the level of specificity required by the DMCA, the question is whether an ISP is responding "expeditiously" if it demands compensation before it acts.

RIAA Battles Now Shift to ISPs

According to a Wall Street Journal article, the RIAA is set to move away from its strategy of suing individuals for allegedly downloading copyrighted music without permission. After more than 35,000 lawsuits and lots of negative press, the association apparently has decided that legal due process has its downsides.

It is this "no more RIAA lawsuits!" shoe that has been making most of the headlines today. The other shoe, however, remains to be dropped, and we're not talking any little old Muntader al Zeidi size 9 shoe here -- this other shoe could be one of those monster Shaquille O'Neil size 23s.

According to the WSJ, the RIAA is negotiating agreements with Internet service providers to implement some form of a "three strikes" policy. As described in the article, the three strikes policy would work something like this:

The RIAA "will send an email to the provider when it finds a provider's customers making music available online for others to take.

"Depending on the agreement, the ISP will either forward the note to customers, or alert customers that they appear to be uploading music illegally, and ask them to stop. If the customers continue the file-sharing, they will get one or two more emails, perhaps accompanied by slower service from the provider. Finally, the ISP may cut off their access altogether."

The three strikes enforcement policy avoids all of that expense, delay, and publicity of a court battle. Oh, and due process. That's out too. With copyright law being as nuanced as it is, and far from clear on so many issues, this three strikes policy is more likely to tread on more listeners' legal rights than is the present policy of individual lawsuits. Are ISPs now going to become the arbiters of fair use? Can we really expect them to devote the time and money to decide competently whether an individual listener's downloads were legal or not?

The Electronic Frontier Foundation has a good post discussing these issues in more detail.

UK Surveys IP in the Workplace

The UK Intellectual Property Office's IP Crimes Group has released research results that appear to show a complacency towards IP infringement issues in the workplace. The study focused on IP infringement in the workplace, with information gathered by way of interviews of a random sample of managers.

Some of the findings include:

-- 75% of companies allow employees to advertise items for sale to their colleagues; DVDs and CDs are the most commonly-sold items.

-- Almost 20% of the managers were aware of counterfeit DVD sales being made at work, with lower-level managers being more aware of such sales than were upper-level managers.

-- Few of the surveyed managers say that their organizations train employees not to download copyrighted material without the copyright owner's permission; 28% report that there is no such training, and 45% say that "employment contracts forbid illegal activity," which is not the same as training.

-- As for business software, roughly half of the managers said that they either did not know how often their organization checked to make sure that all business software was properly licensed, or that such audits occurred "less than once a year."

-- While 99% of managers would turn to the Internet and their human resources departments to educate themselves on their company's rights and responsibilities with regard to copyright and trademark issues, about 40% would ask their lawyers.

-- Nearly three-quarters of those surveyed would find it useful to receive some sort of information about IP issues in the workplace.

For those of us whose careers are deeply intertwined with IP law, these findings can serve as a bit of a wake-up call. Not everybody in business is as sensitized to identifying and managing IP issues as we are. There is still plenty of work to be done . . .

Drew "MySpace" Ruling Makes Bad Law

The Lori Drew "MySpace" suicide case is a perfect example of a hard case making bad law. There are no winners in this sad, sad situation. That said, the tragedy that befell the young suicide Megan Meier, which some believe to have been caused at least indirectly by Drew & company's machinations, and our desire to extract retribution, does not justify interpreting federal law in a way that would make criminals of the millions of people who have entered false information as part of a website registration.

It would not surprise me to see this verdict overturned, if not by the trial judge, then by the 9th Circuit on appeal.

For an excellent discussion of this case, the court's ruling, and its implications, see this Groklaw entry and the Electronic Frontier Foundation amicus brief cited therein.

Could Baiting Infringers Create an Implied License?

TechDirt reports (via TorrentFreak) about a situation in the UK involving copyright owners that may have licensed content to a company with the understanding that the licensee would upload that content to various bit-torrent distribution networks. The licensee would then reportedly hire a law firm to send threatening letters to those who took the bait and downloaded the very torrent files that the licensee had uploaded.

If we take the report as true, then I'm wondering whether those who downloaded the files could argue that, by uploading the files to a public file distribution network, the licensee was impliedly consenting to the downloads that are the focus of the law firm's demand letters.

Seems to me this is kind of like letting your horse out of the barn and then calling the sheriff when you see a stranger in the saddle.

Thanks to Michael Scott for the tweet.

Double-Dipping Counterfeit "Blu-Rays" from China

From either the "Adding Insult to Injury" or "You Get What You Deserve" departments comes this report that Chinese counterfeiters have been copying movies from Blu-Ray discs, burning them on to discs in a DVD format, then passing off the fakes as Blu-Rays.

Proving that you just can't trust anybody these days. Thanks to Engadget for this one!

Two Sides to Black Friday Scoop Disputes

Thanksgiving is approaching, where we all take a day out of our busy lives to pause, thank the Deity who occupies that space in our lives that we reserve for such a Being for all of the blessings that we have been given, and then gorge ourselves silly. With that out of the way, we turn immediately to "Black Friday," where hundreds of thousands of us arise from our tryptophanically-aided slumbers at obscenely-early hours to stand in long, winding, dark, cold lines in front of one of our nation's Massive Retail Giants so that we can be assured of acquiring even more of said blessings.

Sociological commentary aside, what makes Black Friday interesting from a legal perspective is the annual dust-ups between a growing collection of Scrappy Websites on the one side, and Massive Retail Giants on the other, over the unauthorized disclosure of what the Massive Retail Giants are going to selling at Ridiculously Low Prices that Friday morning. Some examples of what's out there are here, here, and here.

The Scrappy Website TechCrunch has posted a fairly typical cease-and-desist letter, this one from a law firm representing Wal-Mart, demanding that TechCrunch take down what is claimed to be a preview of a Sam's Club Black Friday ad that appears on its CrunchGear site.

(The posting of the letter, by the way, is a fairly typical tactic -- the lesson being that if you're going to write a cease-and-desist letter to a Scrappy Website, there's a better than 50-50 chance it's going to end up being posted for all to see. So triple-proofread that letter and try to make sure it doesn't sound too snarky. And you might want to leave off your direct email address and contact numbers.)

The letter presents a good opportunity to review the usual bases of Massive Retail Giant claims against Scrappy Websites that post these scoops. These claims can be summarized as follows:

1. Unauthorized disclosure of trade secrets (i.e., information about what is going to be on sale and what the sale prices will be);

2. Copyright infringement (where the Scrappy Website has posted images of the Black Friday circular)

And just in case the offending Scrappy Website can be considered a "service provider" under the Digital Millennium Copyright Act, the letter includes a DMCA takedown notice that is designed to drain the Scrappy Website's safe harbor. Very thorough.

Of course many of the Scrappy Websites that receive these notices routinely pooh-pooh the Massive Retail Giants' threats, post the cease-and-desist letters, and brazenly continue to display the offending ads. The fans of the Scrappy Websites then fill the sites with nasty commentary poking fun at the Massive Retail Giants for trying to push the Scrappy Websites around. "This information is going to be public anyway," they snort, "so why try to stop it now?"

That's an easy gut-reaction position to take. But there are two sides to any argument, and I can see a couple of legitimate reasons why the Massive Retail Giants are concerned about these early disclosures.

First, some of these early leaks are just wrong. The TechCrunch post is one example. It originally claimed that Wal-Mart was going to be selling a Nintendo Wii package at an extraordinarily attractive price, and it posted a copy of an ad that appeared to back that up. Some days later, however, it issued a correction to the price; the package price may actually be considerably higher (almost double, as a matter of fact). Wal-Mart has a legitimate concern that its customers will see the first (low) price on the TechCrunch website but not the second (high) one, show up on Black Friday expecting to pay the cheaper price, and be disappointed. No retailer likes its customers to be disappointed.

Second, there is no doubt some competitive maneuvering going on here. Each Massive Retail Giant wants to lure as many customers as it can to its stores on Black Friday, and is tailoring its ads as best as it can to accomplish that goal. Leaked ads give the competition both the information and the time to react and devise offers that may be more attractive to consumers. Each consumer can only wait in a single long, winding, dark, cold line, and each Massive Retail Giant wants the longest, windiest, darkest, coldest lines to be the ones in front of its stores.

On the other hand, to protect information as a trade secret it must be treated as a trade secret. If any of these spats ever made their way to court, the Massive Retail Giants would need to show that the information they were claiming to protect had been treated internally and externally as trade secrets, guarded by non-disclosure agreements, locked rooms, and password-protected computer files.

As for the copyright infringement claim, it is frankly hard to argue against that at least from a technical perspective. That said, I wonder whether the Massive Retail Giants have registered any of those advertising fliers with the Copyright Office. Given that they make no money off of the sale of the advertising circulars, statutory damages and the potential for attorneys' fees would probably be the best they could hope for.

Open-Source Hardware Licenses?

Open source concepts are not only for software. Hardware designers are allowing users free rein to build and tinker with product designs, with interesting results.

From the Make Blog, via Slashdot, comes the story of Mitch Altman, inventor of one of the most useful devices known to man: the "TV-B-Gone," which is a portable device that will turn off dozens of brands of television sets from many feet away. Great if you are the type of person who likes to anonymously enrage a crowded sports bar just as that overtime field goal kick is midway to the uprights.

Altman patented his idea, but decided to make a kit available to the public and is happy to hear from those who improve his design or modify it in interesting ways.

I discussed something similar recently, in my post about Dr. Johnny Chung Lee and his Nintendo Wii controller ideas. What I haven't considered is what kind of a license would cover the intended grant of rights.

The difference between open-source software and open-source hardware lies in the nature of the rights involved. Open source software (which includes firmware) is grounded in copyright. The copyright -- and the rights associated with the copyright -- arise and exist as of the moment the software is created and fixed in some tangible medium of expression.

Rights to a device, on the other hand, are grounded in patent. The patent is a discretionary award from the sovereign, not a right that exists ab initio. While the inventor can certainly create a document that is called a "license" to a pending patent application, until that patent issues the agreement is really just a contract, enforceable only by its terms (as opposed to being enforceable by way of patent law). Once the patent issues, the license would have both contractual and patent law on its side.

Such a license could make enforcing typical open-source conditions interesting -- what is the tangible analog of freely distributing modified code? Making the modified product design freely available, while still allowing the licensee the right to make and sell the modified product at a profit? And what of the modifications made to the original product? Would the license permit the licensee to patent the improvement, but require it to license the improvement on the same terms as the original?

I'm aware that there have been a few stabs taken at creating open-source hardware licenses, but the ones that I've seen seem to be grounded in copyright -- in particular, focusing on the specifications that are being licensed as opposed to the product itself. And I'm of course aware that many physical products contain a lot of software, without which the products would not operate. So for some products, the software/firmware license may suffice. But I'd love to hear if something that considers the patent issues discussed above has been proposed.

Auditude Moves to MySpace; Monetizing Pirated Uploads

From the "if you can't beat 'em, then at least make some money off of 'em" department comes the report that Auditude and MySpace have signed a deal that will layer the Auditude platform over video content on MySpace. Auditude creates tags for its clients' video content, then uses those tags to identify that content on the Internet and deliver targeted advertising when that content is viewed. In other words, Auditude clients can make money by selling ads that the Auditude system will deliver -- even to videos that are uploaded without the client's permission.

This is a great example of reactive technology. Efforts to stop the spread of proprietary video content over the Internet have had limited success, to put it mildly. Technology such as Auditude's begins with the premise that the content will be distributed, and turns that distribution into a business opportunity.

Wassup? with that Obama Video

Thanks to Michael Geist for mentioning this in his blog:

You may remember the "Wassup?" Budweiser ads from some years back, which featured, well, various men screaming "wassup?" at each other. A simple yet oddly memorable ad campaign. The original cast recently reunited to film a clever two-minute video in favor of the Obama candidacy that's been viewed more than 2 million times on YouTube. As political statements go, by the way, it is extraordinarily understated.

The interesting thing is the story behind the rights to the "Wassup?" idea. Budweiser had nothing to do with the new pro-Obama video; apparently it had only licensed the rights for five years, after which they reverted to Charles Stone III, the director of the original "Wassup?" commercial. You can read more about that in Burt Helm's "Brand New Day" blog for Business Week here.

There are two takeaway points here: First, where entertainment is concerned, much is recycled to take advantage of people's familiarity with the original. Stone was smart (or maybe just lucky) because he can now use the same idea to bring his message to millions, building on the foundation of consumer familiarity that Budweiser paid for. Second, this serves as a reminder to consider carefully what happens to licensed IP at the end of the license term, and how long that term is going to run. Licensees, you may want an option to extend a license that is successful; and licensors, you may want the ability to renegotiate the terms in such a case.

More from the Google Library Settlement

I've managed to burrow a bit deeper into the depths of the Dostoyevsky-esque tome that is the Google Library Project settlement (see post below), and offer the following interesting points (references to the Settlement Agreement sections follow in parenthesis):

-- Google will not be printing books nor, apparently, offering downloads to consumers, at least of books that are still protected by copyright (it will continue to offer downloads of public domain books). Instead, a "Consumer Purchase" will permit one to "view, copy/paste and print pages of a Book," with a four-page limit on the copy/paste and a twenty-page limit on the print features. Note that "download" is not among the permitted activities, so consumers will need an active Internet connection to read what they purchase. Printed pages will include both a "visible watermark" that will identify the printed material as copyrighted and will also include encrypted "session identifying information" that is to help identify the user who printed the material. (4.2(a))

Comment: This could be an issue going forward. While electronic book readers are growing in popularity, part of that popularity lies in the ability to use them in places where Internet access is limited (planes, beaches, subways, I-80 through most of the country). The settlement does leave open the possibility that the parties could agree to other distribution methods in the future. But clearly, the publishers aren't interested in handing their core business over to Google.

-- Rightsholders can either specify the price they want Google to charge for access, or allow a yet-to-be-developed-by-Google algorithm that will automatically set the book price (called the "Settlement Controlled Price"). The Settlement Controlled Price algorithm will place the book in one of twelve preset fixed prices for books (called "bins") that begin at $1.99 and end with $29.99. The algorithm will distribute the Settlement Controlled Price books among those twelve bins according to a set percentage books per bin (i.e., 5% of the books Google offers for Consumer Purchase go in to the $1.99 bin; 8% in the $14.99 bin, etc.). 46% of the books so priced are to be available from bins that are priced from $2.99 to $5.99. (4.2(c))

Comment: The concept of a Settlement Controlled Price algorithm is a very "Googly" feature that I'm sure somebody in Google Labs is already digging into. The algorithm is to be designed "to find the optimal . . . price for each Book and, accordingly, to maximize revenue for each Rightsholder." It will be interesting to see whether Google ends up patenting this, or elects to keep it a trade secret. If it works, it could end up being its own profit center, with Google renting out a modified version of the SCP algorithm tailored for regular publishing.

-- The Registry will receive 70% of "Net Purchase Revenues" and "Net Advertising Revenues" from Google. "Net" comes after Google subtracts 10% from the gross revenues to cover its operating expenses. So for every dollar Google grosses from Purchases and Advertising, the Registry receives 63 cents. ([1.00 - .10] x .7 = .63).

Comment: So Google will have to generate about $340 million in purchase and ad revenues to earn back its $125 million investment in this settlement, which doesn't consider those 10% "operating expenses."

-- I'm a bit confused by this one: In 3.10(c)(iii), Google is prohibited from displaying "on, behind or over the contents of a Book or portion thereof," including Preview Use pages, "any pop-up, pop-under, or any other types of advertisements or content of any kind." That said, 3.14 then permits Google to "display advertisements on Preview Use pages and other Online Book Pages." If I figure it out I will update this.

-- Google has some rights to add hyperlinks to book texts: it can link from one part of a book to another part of the same book; it can link from the book to an "online version of an external source cited" in a footnote, endnote, or biliography; and it can link to a URL that is included in the book text. (3.10(c))

-- Provided the Rightsholder does not object, Google can enable a "Book Annotation" feature that will allow users to make notes associated with the book for the user's personal use, and to share those notes with a limited number of other users. (3.10(c)).

Comment: The Book Annotation feature could be great for collaborative endeavors such as research projects, study groups, book clubs, and cellularly-distributed underground radical organizations bent on Ending Civilization as We Know It. I'm sure the NSA is on it, though, so no worries there.

This settlement has been meticulously crafted; it is a very impressive document, and reflects what must have been an enormous amount of work and a shared willingness to come to a creative solution among all of the parties involved.