Richard Epstein recently published a column on FT.com's New Technology Policy Forum about the Patent Reform Act of 2007. He argues that changes to the injunction rule and damage rule in the PRA are "a one-two combination that would dampen patent innovation." Read the column for yourself here.
On September 20, Richard Epstein and NYU's Harry First participated in an email forum sponsored by Financial Times. The pair answered questions about the European Union's Court of First Instance ruling against Microsoft a few days prior (Randy Picker also wrote about the case on these pages).
The questions and answers are available here.
The European Union’s Court of First Instance issued its decision in the Microsoft case today upholding in most respects the March 23, 2004 decision of the European Commission. That decision had concluded that Microsoft had abused a dominant position by tying Windows media player to Windows and by refusing to make available to competitors information about protocols that would make it easier for third-party products in the work group server operating system market. That decision had also imposed a fine of roughly €500 million and had ordered a monitoring trustee going forward to ensure compliance with the decision. The Court of First Instance upheld everything other than the monitoring trustee.
The decision is a behemoth—the pdf runs 248 pages—and even the press release runs five pages. Serious analysis of the ins and outs of the case law will require some days, but I think we can offer a quick assessment of the likely market impact of the decision:
1. €500 Million Fine. This is a great deal of money, even in the world of Microsoft, but ultimately, this just knocks down their stack a bit. Market impact?: little to none.
2. Required Unbundling of Windows Media Player. The European Commission required Microsoft to offer separate with and without versions of Windows: one version that could include the Windows Media Player and one that would come without it. Microsoft and the EU tussled over the name of the reduced technology version—I think Microsoft wanted to call it “Windows, the Junky Version Required by the EU”—but as the European Commission did not require Microsoft to charge a reduced price for the reduced function version, it has had little market impact. I understand the logic of the EU position—indeed, published an article before that remedy was announced suggesting exactly that remedy—but the market response has been as what one might have forecast: very little adoption of the reduced technology version. That in part caused me to switch suggested remedies in a later paper (simple version: don’t subtract from Windows as the EU did, but add to it instead by requiring Microsoft to add competing products as part of its Windows distribution (the so-called must carry remedy)). Market impact of required unbundling: again little to none.
3. Required Interoperability Disclosure in the Work Group Server Operating Systems Market: This is the one that could matter. In some sense we might judge that from the fact that Sun and other competitors pushed the Commission to pry open the Windows communications protocols. Presumably that is some indication of their belief that they will benefit from greater access to those protocols. What that benefit is is less clear to me. John Frank, a Microsoft attorney, gave a talk to our students here at the Law School last Spring. I walked away thinking that I needed to have a greater technical understanding of the technology, particularly the multimaster replication technology. I hope the tech bloggers address this today. And this is one where we need to go both ex ante and ex post. Distributing Microsoft technology to its competitors will almost certainly enhance competition ex post, but a general policy of doing this will reduce investment incentives ex ante. Market impact of greater interoperability?: Best guess is positive given the existence of the technology, but we should hear from the tech guys.
As the EU press release notes, the next step for Microsoft is an appeal to the EU Court of Justice. For me, the next step is trying to figure out how to edit the 248 pages down to the roughly 20 we can do in my antitrust class (currently scheduled for class 25 this Fall). Perhaps I can just keep every 12th word?
Things have turned quite interesting in the upcoming Federal Communications Commission auction of new spectrum. Google announced today that it was willing to bid at least $4.6 billion in the upcoming 700 MHz auction, so long as the spectrum was sold subject to four open platform requirements. At first glance, that must seem odd: why does Google want restrictions imposed that it could simply implement as the auction winner? The point of course is that Google wants these requirements imposed on any winner, not just itself. Google might be happy to go into the spectrum business but it clearly believes that it benefits if open-platform spectrum is created. Google has effectively offered the FCC a price floor for the spectrum, so long as it gets the rules that it wants. What should the FCC do?
Adding the open-platform requirements will almost certainly reduce the revenues that the FCC will collect in the auction. Many of the incumbents may be discouraged from bidding under the open-platform requirements. But revenue maximization shouldn’t be the government’s chief concern: the government should be in the social welfare business and it should be willing to accept reduced revenue if it can buy enough telcom competition.
I was in a Blockbuster video store this morning for the first time in a very long time. In my house, I run our Netflix queue, while my wife makes the rare foray to Blockbuster—usually for something kiddish. But I did the return this morning and actually went in to look around. What caught my eye immediately are the new Blockbuster exclusives that it is pushing heavily in its stores. A quick online tour makes clear—sort of—what is going on.
Continue reading "Blockbuster Exclusives, the First-Sale Doctrine and Competition over Content" »
What makes the PlayStation 3 tick? The Apple iPod? Your BlackBerry? Software, or, more precisely—and much more interestingly—a software platform makes the hardware sing and sits in the middle of a business ecosystem of users, hardware makers and software developers. An invisible engine.
David S. Evans, Andrei Hagiu and Richard Schmalensee hold a mix—individually and collectively—of high-end academic and consulting positions. They are nicely-situated to bring to bear sophisticated theory—here, the rapidly developing economics of multi-sided markets—and a substantial amount of real-world contact. They do exactly that in their new book Invisible Engines: How Software Platforms Drive Innovation and Transform Industries.
Here is a twofer: an interesting example of remixing preexisting works plus a window into content cultural differences between the United States and Europe.
The European Commission’s MEDIA website is currently promoting its efforts in supporting film in Europe with four compiled video clips showing different emotions. Clips capture joy, love and sadness, but it is the fourth clip that is getting the blogging attention (you can watch a version of it at the European Commission site or at YouTube).
On the cultural differences, note the extensive financing of film by the European Union plus note that the fourth clip is NOSFWUS (not obviously safe for work in the United States). (Hat tip: Internet Ronin via Althouse.)
This is one of a series of posts; the last post was here.
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The new tools of creation and distribution make this the best time ever for those willing to give away their content. But professional content creators have never faced a greater challenge. Part of this is greater competition from the newly empowered amateurs, the new content professionals of the Internet era. Competition is healthy, and especially so given the poor track records of the gatekeepers in choosing content. The “failure” rate on professionally chosen music is extraordinarily high. But I suspect that most of the professionals believe, rightly or wrongly I do not know, that their content will win in the marketplace against the amateurs.
Instead, the greater challenge to professionals is the collapse of the copy and the ability of content users to unbundle content and ads. If content creators cannot control copies or cannot ensure that ads remain attached to content, how will content creators get paid? Content producers have looked to technology to bolster the copy as copy and to limit whether users can unbundle ads and content. It is important to see the systematic challenge posed.
Like the Doctor’s tardis, some Supreme Court cases are “transcendentally dimensional”: bigger (or smaller) on the inside than the appear from the outside. I have never been sure of the exact “size” of the Supreme Court’s 1911 decision in Dr. Miles, but I no longer need to sort through that. This morning, in a 5-4 decision authored by Justice Kennedy, in Leegin Creative Leather Products v. PSKS, the Supreme Court overruled Dr. Miles and determined that antitrust actions relating to minimum resale price maintenance should be evaluated under the rule of reason. (Minimum RPM means that the manufacturer requires a retailer to agree to sell the manufacturer’s goods for at least a particular price. Sony might require Best Buy to sell its new HD rear-projection TV—I have been doing some looking—for at least $1500.) This was exactly what I predicted before when the Supreme Court took the case, so this isn’t a surprise. That said, the oral argument indicated that the decision would be close and that too was right. We get another 5-4, and like the other cases at the end of this Term, you can probably guess the line-up.
Continue reading "Doctor Who?: Reason Comes to Minimum RPM in Leegin" »
This is one of a series of posts; the last post was here.
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So far, the Internet has meant different things to text, video and music. The Internet is the perfect device for copying a book. Stick the book into the Internet, press a button, and out comes a copy, just like a photocopying machine. That sentence probably didn’t seem to make much sense, but I think that it is right. Consider Harry Potter and the Half-Blood Prince, book number six in J.K. Rowling’s planned seven-book series. Leading books like HP VI are usually released simultaneously in many formats: standard hard cover; audio (both CD and cassette); a large-print version; and more recently several ebook formats. Same text, but different readers can experience the work in the format that best matches them.
Rowling declined to release an electronic version of the text. Hard-core Harry Potter fans wanted a searchable version of the text. Rowling was thought to have left clues scattered throughout the text about Harry’s eventual fate, and the Potterphiles wanted to find them. Reading the text was one thing, searching it another. But without an electronic version of the text—all 652 pages of it—how could they do that?
Good for Microsoft. Late yesterday, the Department of Justice posted on its website its most recent joint status report regarding compliance with the final judgments entered in the federal government action against Microsoft. The new report describes an agreement by Microsoft to revamp how Vista approaches desktop search. Google has contended that Microsoft’s approach to desktop search in Vista creates a barrier to entry for competing desktop search products. The new agreement should resolve this complaint and facilitate greater competition in desktop search. Good for Microsoft and good for us.
We are once again changing how we organize computers. In the past, we moved from mainframes to mini computers to freestanding personal computers. The introduction of ubiquitous networks tying together these computers has had important consequences in area after area (I discuss this generally here in the context of cyber-security and more specifically for copyright here).
We are now moving towards a cloud organization for data. Some content may be stored locally on your machine, while other content—content that you in some powerful sense think belongs to you—will be stored remotely. Where actually? You won’t have a clue. For those data—data stored in the cloud—we need to define the respective rights of all of those with access to the data. I have blogged on this before in the context of data portability. The recent tussle between Google and the European Union over how long Google would keep search data is another example (Google has revised its practices and will now keep data for only 18 months rather than two years). These are the front lines of the law of cloud computing.
Today, the Sixth Circuit issued a decision in Warshak v. United States that addresses Fourth Amendment rights for remotely stored e-mail. (Hat tip: Orin Kerr.) This is another step on what will be a path of increasing interest and difficulty: how will we regulate the cloud?
Continue reading "Regulating the Cloud: Warshak v. United States" »
Over the last week, it has been become clear that Apple is embedding some identifying information in songs purchased from iTunes, including the name of the customer and his or her e-mail address. This has raised the ire of consumer advocates, including the Electronic Frontier Foundation which addressed this again yesterday.
Last year, I published a paper entitled Mistrust-Based Digital Rights Management (online preprint available here). In that paper, I argued that as we switched from content products such as CDs and DVDs to content services such as iTunes, Google Video and YouTube, we would embrace identity-based digital rights management. This is exactly what we are seeing from iTunes. How should we assess identity-based DRM?
Continue reading "iTunes and Identity-Based Digital Rights Management" »
This is one of a series of posts; the last post was here.
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But even with the rise of copying started by Xerox, copying on physical media—paper, cassettes, VCR tapes and DVDs—brought with it critical limitations that ultimately restricted how much content could be distributed by consumers: it is just hard for consumers to share stuff. Most of the problem is organizational. Before the VCR, we had come up with a good way to share only two things: books and tuxedos. That isn’t quite right, but you probably see the basic point.
This is one of a series of posts; the last post was here.
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Jump across time quickly: from medieval monks to Gutenberg to 1959 and the Xerox 914 and finally to Sean Fanning, who created Napster. These events define three eras of copying. Call the first period Handcrafted Content; the second, Gutenberg’s Professionals; and the third, starting with the Xerox 914, Distributed Content and Copying. In defining these eras, focus on the second-copy costs for the author/publisher versus those of a person in possession of a single copy of the work. Not the cost of producing the first copy, but instead, first copy in hand, how much does it cost to create a copy of that copy? Does the author/publisher have an advantage over a person who has acquired a physical copy of the work?
How do you think Donald Duck would sound doing the Gettysburg Address? The genie from Aladdin reciting the Bill of Rights? Perhaps your tastes run in a different direction. George Bush channeling Bono? Tony Blair contemplating his future courtesy of the Clash? Perhaps Elmer Fudd singing opera (oh wait, that’s already been done and classically so)?
This is all doable. What we really need is a grand database of video snippets—a database of what a telecommunications lawyer would call unbundled video elements (“UVEs”). The Wall Street Journal reported today that George Lucas is taking a step in this direction by releasing 250 clips tomorrow in honor of the 30th anniversary of the original film. (Commentary here and here.)
How would we use such a database? Eric Faden, a media professor at Bucknell, has given us a glimpse of this in his recent video “A Fair(y) Use Tale.” What do we learn?
This is one of a series of posts; the last post was here.
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The rise of copying and yet even more recently of easy distribution across the Internet has changed the consequences of the copy profoundly. Technology has dramatically expanded what can be copied, and personal computers and networking have made distribution of digital copies instantaneous. To possess a copy is to have the power of distribution in your hands. To sell a single copy of a work is to sell the practical ability to distribute content for free. Sold once, free everywhere. That is most true for music—hence music has been the frontline in the content wars—as the songs that make up popular music today are divided up nicely into 3-5 minute chunks and in digital form are measured in megabytes and not gigabytes.
This is one of a series of posts; the last post was here.
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But while Gutenberg created the copy, we should also note what he didn’t create: Johann 1.0, the Gutenberg Reading System™. There was no device interposed between the content and the reader, no distinctive system to carry the information to those who wanted to access it. That was also true of the dominant method for creating music: home-brewed using instruments and sheet music. Any piece of sheet music would work with any piano.
This is one of a series of posts; the last post was here.
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Gutenberg’s printer created mass media, a way for producers of content to distribute those works to many consumers. Producers were freed of the powerful technical limitations of one-by-one document production or of in-person, live production. Gutenberg created the copy, the widely-distributed, faithfully-executed physical instantiation of content. Printing brought with it reproductive fidelity and volume, the ability to turn a single manuscript produced by an author into many accurate copies available to the public. Until recently—say the last three decades roughly—a copy of the content provided only a way to consume the content, that is, to read the book or listen to the music or go the movie theater to take in a show. And it wasn’t even possible to possess a copy of radio or television broadcast: radio waves emanated through the ether to be received, ever so briefly and fleetingly.
As we head toward the Summer—only one more week of 2L and 3L classes—I am returning to a longer project that I have been pursuing. The first post in the series is here.
But this change in technology has brought with it a more fundamental alteration of the landscape of content. With prior technologies, non-professionals—call them amateurs—couldn’t afford the standard tools for making content and lacked access to broad channels of distribution. The declining cost of the tools of production and distribution—the personal computer and the network—have changed that, with dramatic results. We have millions of bloggers. Content that might have been read by no one ten years ago—a diary—is available to the world through blogging. Small-group discussions that might have been done via email before now take place in public, on blogs and across blogs. Bands that would otherwise just be making noise in someone’s garage—preferably one a few blocks away—can now find a following on mySpace; and amateur videos are now competing with television on sites such as YouTube and iFilm. An uploaded video on YouTube may be seen by more viewers than a movie distributed by a major movie studio. This is the era of spontaneous scale.
On the airplane on the way back from a conference Friday at George Mason on innovation and competition policy, I reread the Second Circuit’s opinion in Corley and I also read Henry David Thoreau’s 1849 speech on civil disobedience (available here and here and originally given under the title Resistance to Civil Government). There has been continuing discussion about the Digg revolt, the role of free speech and the First Amendment and appropriate scope of civil disobedience (see in particular posts by Ed Felten and Tim Lee). I would like to return to this subject and address some of the comments on my post on this last week.
The last 24 hours have been particularly interesting on the website digg.com. If you don’t digg—and I don’t—digg is a social aggregation website for content. Put differently—that is in English—Digg effectively lets users continuously vote on cool content. Content that gets sufficiently digged works it way to the front page of the website and Digg then links to the original website posting the content. Yesterday, content that Digg believed that it had a legal obligation to not link to made it to the site’s front page. Digg initially removed the links, and then backed away when its users continuously digged sites with the impermissible content. This case raises questions about civil disobedience in an electronic age and what laws are worthy of our obedience.
Apple and EMI announced today that they would start selling higher-quality DRM-free music on iTunes at a price of $1.29 per track, 30 cents more than iTunes’s standard 99 cents price. This is an outgrowth of Steve Jobs’s Thoughts on Music (my post on that here). The press conference slides indicate that 84% of surveyed European consumers would like to be able to move their music files between devices and this will make that possible. This is an interesting expansion of the iTunes business model, and one that should further accelerate the death of the CD. The ease of use that people associate with music CDs is coming to iTunes.
Continue reading "Apple and EMI: What Rights Are You Willing to Pay For?" »
I don’t know, so you might want to stop reading. But if you are willing to live with smaller slices of knowledge, then let me suggest that whatever the answer is the Supreme Court didn’t do anything unusual in its 2005 decision in the Grokster case. Larry Lessig suggests otherwise in an op-ed in the New York Times last Sunday, but I just have trouble squaring that analysis with the history of the courts in copyright. The courts created fair use, notwithstanding that the federal copyright statute said nothing about it, and the Supreme Court’s 1984 landmark decision in Sony represented an exercise in common law copyright. Whatever one thinks of Grokster on the merits, we should not think that it represents a powerful shift away from Congress in favor of the courts in copyright.
Continue reading "What Should Courts Be Doing in Copyright Cases?" »
My laptop has been dying over the last two weeks, and, as of Tuesday, no longer would turn on. Since the machine didn’t just keel over and die, I had a chance to assess the status of all of the content “on” the machine to make sure that I didn’t lose anything. Of course, “on” the machine doesn’t mean what it used to. The law school mirrors big chunks of the content stored on my laptop (though not all of it, as we needed to deal with locally-stored items in Outlook). More interesting and more relevant to law, more and more of my content is stored centrally with someone else, in my case, Google.
I am a big, big fan of RSS and use Google Reader to manage that content. If you want to know what I am interested in right now—what I found interesting in the 136 subscriptions currently flowing through Google Reader (is that a lot?)—you want to look at my Google Reader tag cloud. But the right question for law is: as we move from products and local storage to services and centralized storage, who owns the data and what establishes rights to access and use the data?
Continue reading "Mandatory Data Portability and Interoperability: The Next Frontier?" »
If you would like to vote on the Oscars, you can now download this year’s nominees at OscarTorrents.com, watch them and then cast your vote for your favorites. Not legally of course, but why should we be bothered with paying for content when technology makes it possible to make other people’s work available for free? And don’t fear law: “To those worried about downloading in case they get sued: by our calculations, your chances of getting nailed are way less than your chances of winning the lottery. Don’t think twice about it.”
I love RSS. The University of Chicago Press journals now do RSS, or at least the ones that I read (JLE, JLS and JPE). Now amidst the Steve Jobs Thoughts on Music and reports that EMI may move to unDRMed MP3s, this from the most recent issue of the Journal of Political Economy. Oberholzer-Gee & Strumpf, The Effect of File Sharing on Record Sales: An Empirical Analysis:
For industries ranging from software to pharmaceuticals and entertainment, there is an intense debate about the appropriate level of protection for intellectual property. The Internet provides a natural crucible to assess the implications of reduced protection because it drastically lowers the cost of copying information. In this paper, we analyze whether file sharing has reduced the legal sales of music. While this question is receiving considerable attention in academia, industry, and Congress, we are the first to study the phenomenon employing data on actual downloads of music files. We match an extensive sample of downloads to U.S. sales data for a large number of albums. To establish causality, we instrument for downloads using data on international school holidays. Downloads have an effect on sales that is statistically indistinguishable from zero. Our estimates are inconsistent with claims that file sharing is the primary reason for the decline in music sales during our study period.
The last two days have been interesting for those of us with a strong interest in razors and blades, in this case, Apple’s iPod and music and newly-announced printers by Kodak and the cartridges that will go in them. Yesterday, Steve Jobs posted Thoughts on Music on the Apple website, in which he set out his views of music DRM. Apple is prepared to walk away from DRM (well, only sort of, and nothing suggests that Steve Jobs is willing to do so more generally (read: Don’t expect Pixar films to be free of DRM anytime soon)). And Kodak has announced a new approach to selling printers and cartridges: “think: is it smarter to save money on a printer or ink? (Hint: You only buy the printer once.)” Raise prices on printers and lower prices on cartridges. Both of these are worth considering more carefully.
Continue reading "Razors and Blades Again and Again: Apple and Kodak" »
Danny Sokol, a former student of mine now teaching antitrust at Wisconsin, has arranged a series of posts on his Antitrust & Competition Policy blog addressing how different professors approach teaching antitrust. Here is what I said.
The University of Virginia Law Review has a new online format to encourage scholarly conversations—well, I think that they are hoping for something just a tad more civilized than Jerry Springer but not too much so—over recent articles in the UVaLRev. The first In Brief is now up. The target article is The Piracy Paradox: Innovation and Intellectual Property in Fashion Design by Kal Raustiala (of UCLA law) and Chris Sprigman (a Chicago grad and currently of Virginia law). I respond as does Rochelle Dreyfuss (of NYU law). We mobblogged the paper here in November.
Sam Peltzman is a legendary University of Chicago economist. I first encountered his research during high-school debate, where his work was being quoted for one counter-intuitive proposition after another. Most famous, perhaps, is his suggestion that mandatory seat belt laws wouldn’t reduce deaths—at least certainly not as much as forecast—because drivers would compensate for their “forced” safety consumption by driving faster. This is known as the Peltzman Effect. (As to the empirical validity of the claim itself, see this recent post by Steve Levitt on his Freakonomics blog.)
We look like we are getting to run another test of the Peltzman Effect as Wal-Mart and environmentalists (together!) (NYT, 1/2/07 $) push us towards compact fluorescent light bulbs (CFLs). Will CFLs save energy as consumers swap 60-watt incandescents—Thomas Edison’s light bulb—for 15 watt CFLs? Or will consumers seize the day(light) by swapping 60-watt CFLs for 60-watt incandescents? If so, that will offset projected energy savings (and the corresponding carbon dioxide reductions).
Continue reading "Compact Fluorescents and the Peltzman Effect: Saving Energy vs. More Light?" »
I know: hit the power button on the remote (and I have figured that out), but that isn’t actually the question. Today’s Wall Street Journal has a good story (“Find It on the Web, Watch It on TV” ($ I assume)) on the growing market in devices to move content from the web to your television. Yes you can download Lost at iTunes, but do you really want to watch it on your iPod, especially if you have a new HDTV sitting in your family room? As television content unbundles and we all get to mix and match content from across the world, how do we get the content on our TVs?
Yesterday, my six-year old daughter got a copy of the book Rudolph The Red-Nosed Reindeer. The book jacket describes the book as “The Original Story of Rudolph,” and there is no doubt that the book version differs from the well-known song or the Burl Ives Christmas special. That was interesting, but I found the back flap of the book jacket of even greater interest. We are told that Rudolph was written by Robert May in 1939 while he was working for Montgomery Ward, the old department store chain. Ward used Rudolph as a holiday giveaway.
Continue reading "Rudolph The Red-Nosed Reindeer: A Tale of Copyright Transfer" »
That’s the Supreme Court calling to say that while the patient is fine, your time grows short.
As Lyle Denniston reported this afternoon, amidst the hubbub over the Supreme Court’s shrinking docket—Linda Greenhouse in the New York Times this morning and Tom Goldstein’s detailed commentary on Nov. 30th—the Supreme Court took five new cases today. Two are antitrust cases (bring the Term’s total to four). One of the new cases addresses antitrust immunities in the context of the initial public offering market; the second takes us back to 1911 and the Supreme Court’s decision in Dr. Miles.
The issue is vertical contracting and whether minimum resale price maintenance is so pernicious that it should be routinely condemned as a violation of Section 1 of the Sherman Act. The Court so concluded in 1911, but economic analysis in the intervening years has indicated that minimum RPM may often be beneficial and courts should therefore conduct a more careful analysis. Presumably, the Court granted cert today to adopt just that view and the good doctor’s near-century run will come to a close.
Judge Posner is no stranger to new technology, both personally and professionally. He's taking it to new heights, however, in early December, when he will enter the world of Second Life and his avatar will be interviewed about his book Not a Suicide Pact. For more information and reservations, visit New World Notes.
If this post was complete gibberish to you, you may want to read up on avatars and Second Life.
Yesterday, the Supreme Court heard arguments in Bell Atlantic v. Twombly, one of two antitrust-focused cases this term. (The second case, Weyerhaeuser v. Ross-Simmons is being argued today (Jason Harrow at SCOTUSblog has a good preview of that case)). Twombly focuses on the pleading requirements established by the Federal Rules of Civil Procedure, and in particular, how those rules will apply to plaintiffs bringing antitrust complaints. With the Supreme Court’s new policy of same-day release of the transcripts of oral argument, we can now guess in real-time at what the Court will do. In truth, we could guess before (and did), but now we have more than second-hand accounts to go on. What should we make of yesterday’s argument?
Continue reading "Reading Twombly Tea Leaves on Boylston Street" »
I want to first comment on the negative space discussion, which is very interesting.
The question of copyright's negatives is closely related to the question of meta-IP, which also no one understands. Why are some things protected by copyright? Others by patent? Others by nothing at all?
One theory is maybe something like a historical public choice theory. In other words, behind every grant of an IP right lies (1) a group who wants protection against misappopriation, (2) organized enough to press its claims, (3) without powerful opposition. Where that pattern has existed over time, you find a trail of intellectual property rights.
This leads to a highly path dependent, or founder's effect driven shape to the various IP domains. Copyright begins by dealing with one problem (books), makes up rules for books, and then moves on to everything that seems analogous. Patent begins with things like wrenches, makes up rules, and then goes onward from there. Under this theory there's no use looking at the nature of things, as opposed to the interest groups and litigants who were in a position to ask and get protection.
Maybe by analogy, if we were studying a tree that grows in Africa, if someone asked, why don't we find this tree in South America, the answer is that the organism didn't quite get there, and instead another tree is growing where it might have.
That explanation may be one of the more accurate, but perhaps less fun. I think there's alot to think about in Clarisa Long and Henry Smith's approach to these problems, which is to look at the information costs created by the items in question and the IP regimes in question. So, for example, (as Mike pointed out), copyright has a tendency to cling to physical things that, well, can be easily copied. Patent, at least traditionally, was stuck to the physical ebodiment of an invention. So some of the negative and positive spaces in IP might be helpfully understood this way.
I had occasion, finally, to get my hands on one of the new Sony E-Readers, and it set me thinking about the path dependency of innovation in the face of legal obstacles. If you have not seen one of these electronic-pocket-book-platform things, you will have trouble imagining how such a small change could convince many users that the world of reading is about to change. The Sony device sells for about $400 and holds up to 80 books. The one I tested had Freakonomics loaded on it, and so I read and marveled. Only the charts in Freakonomics looked a tad worse than they do on familiar pages. But one look at this device sets the mind and heart to work on the possibilities.
The Federal Trade Commission recently released a staff report on municipal wireless (“Municipal Provision of Wireless Internet”). The report is a lot of on-the-one-hand and on-the-other, but the report does a good job of laying out the current legal landscape and the various models of muni wireless that communities might pursue. The bottom line for the report is a decision tree (p. 48) intended to help municipalities assess the possibility of municipal wireless.
But the FTC analysis starts in the wrong place, and the key mistake is in not separating carefully a municipality’s role as service provider from its role as input provider. Start with the latter. As I emphasize in a recent paper on municipal wireless (“Who Should Regulate Entry into IPTV and Municipal Wireless?”), many municipalities will have dense networks of physical assets that will be attractive to a wireless entrant. City light poles are a good example: they are all over and sufficiently close that even short-distance wireless technologies (such as Wi-Fi) can rely on them.
Continue reading "Should Your City Want Municipal Wireless?" »
In my secured transactions and bankruptcy classes, when I teach the Modigliani-Miller theorem—or, as we think of it at the University of Chicago, Miller-Modigliani—I describe it as focused on the consequences of home-brewed arbitrage. Investors outside of a firm can buy or sell debt or equity to replicate or counteract steps taken by a firm to create an optimal debt-equity ratio. Hence the theorem’s core point about the irrelevance of capital structure under certain highly-stylized conditions.
But apparently home-brewed arbitrage has taken on another meeting, as the Chicago Tribune detailed in an interesting if fluffy article yesterday about Starbucks and the bootleg latte. As the Tribune describes it, Starbucks's pricing creates a doppio-latte arbitrage opportunity. But the article raises interesting points about an item of ongoing interest for me, namely, under what circumstances can users deviate from the intended uses of producers? For regular readers of this blog, you will recognize that this once again takes us back to questions relating to digital rights management and the Digital Millennium Copyright Act (see posts here and here).
Richard Epstein recently delivered the Keynote address at the Progess & Freedom Foundation's Aspen Summit on the subject of "The Structural Unity of Real and Intellectual Property." Mildly interested? Read the press release here. Very interested? Read the piece here. Miss listening to Professor Epstein talk? See the video here. Have comments? Leave them in the comments section.
(This is my third post on Henry Jenkins’s new book Convergence Culture; the first two posts are here and here; and the Wall Street Journal had a terrific article on fan fiction on Saturday (here ($)).)
Jenkins pushes (p.190) for a reformulation of fair use “to legitimate grassroots, not-for-profit circulation of critical essays, and stories that comment on the content of mass media.” But he clearly wants more, as he recognizes that most fans aren’t that interested in producing work that the law is most likely to protect (parody or critical commentary of the sort seen in The Wind Done Gone), but who want instead to write about Ron and Hermione kissing. That said, Jenkins believes that copyright holders should be protected from commercial competitors.
I am most interested in Jenkins’s claim about the relationship between IP and authoritative status.
(This is part 2 of a three-part post; part 1 is here.)
Enter the world of fan fiction. Fans create new content using the characters and settings of the original. This is really the heart, as Larry Lessig puts it, of the extent to which popular culture on the Internet is going to be read-only vs. read-and-write. Fan fiction predates the Internet—Textual Poachers is a 1992 work—but the Internet makes available to the world what had been private writings circulated in small groups. Jenkins focuses on Harry Potter and Star Wars.
This is a review of Henry Jenkins’s new book Convergence Culture. The review is a bit longish, so I will do it in three separate posts today; Friday; and Monday.
Jenkins is a media studies professor at MIT, and his job is the fantasy job of a 12 year old: watch Survivor and American Idol and count it as work. His new book Convergence Culture is a sequel to his 1992 work Textual Poachers: Television Fans and Participatory Culture. Both books examine participatory media, that is, a popular culture that directly involves fans in the defining of the culture. This convergence isn’t about technology—one screen (or one box) to rule them all—but rather about the way that the bright lines separating content creators from content users are becoming increasingly fuzzy. A convergence of creators and users-as-creators.
The book is a fun read—examining not only Survivor and American Idol but also “transmedia” storytelling in The Matrix and Harry Potter and Star Wars fan fiction—and is an almost anthropological examination of new trends in fan participation. Fan participation also raises important legal issues (especially for copyright) and Jenkins spends some time on those, though they are not, understandably, the focus of the book.
Continue reading "Book Review: Convergence Culture by Henry Jenkins" »
On Friday, I posted on Amazon’s new video download service, Amazon Unbox Video. Today, I want to head into the terms of use. My version of the printout runs 26 pages though only the first ten are actually about Unbox; the remaining pages relate to Microsoft’s .Net framework. Three characteristics stand out in the terms of use: phoning home to the Amazon mothership; remote destruction; and soft contractual rights. Consider these one by one.
Amazon has launched a new video download service: Amazon Unbox Video. The launch of a new content service these days is an exercise in designing access and control over content. Today I will sketch out the big picture features of this access; next week I will do the lawyerly thing and head into the terms of use.
We should start with the basics. Amazon has apparently struck deals with a large number of content providers, including major TV networks, such as CBS, Fox, Nickelodeon and others (but not ABC or NBC) and deals with a number of major movie studios including Paramount, Sony, Universal and Warner Bros.
Gary Krakow has a column today on MSNBC raving about a new Nokia smartphone. I confess that I do not find cell phones interesting, I guess because I have persuaded myself that, notwithstanding the advertising, a cell phone is just a cell phone and it doesn’t somehow define my worth as a human being. But I am very interested in product feature sets and interested in particular, both professionally and personally, in a cell phone that will toggle intelligently between standard cell phone service and Wi-Fi service.
Continue reading "The Wi-Fi Cell Phone and Built-In Competition" »
An author creates a work, a book perhaps, or a movie or recorded music. The point at which the author grants access to the work and how the author grants access to the work is a critical juncture in the life of content. And how content is created and distributed is changing rapidly. We have said that before, indeed have said that with each revolution in communications. The telegraph was the wonder of its day and radio exploded. Television and cable grew into the dominant media of the late 20th century. Now the emergence of the Internet and a broadband infrastructure have radically decentralized the opportunities to create and distribute content.
This change in distribution technology has powerful consequences for the transition point between private content and taking the content public (publication in a word). For most of the history of content, built-in technological limitations of the media of distribution meant that publication brought with it certain control over content. For a consumer, books, movies and recorded music were hard to copy and even harder to distribute in large numbers. The Internet has changed this. To possess a copy of a work is to have the power of distribution in your hands. For a creator, to sell a single copy of a work is to sell the practical ability to distribute content for free. Sold once, free everywhere.
Herbert Hovenkamp, the Ben V. & Dorothy Willie Professor of Law and History at The University of Iowa College of Law, is best known to the antitrust bar for his role as the senior surviving author of the multi-volume Antitrust Law treatise originated by Philip Areeda and Donald Turner. The treatise is the standard reference in antitrust and the common-law nature of antitrust in the United States makes the treatise particularly influential. Hovenkamp has also written more broadly and my personal favorite has always been his 1991 business history Enterprise and American Law 1836-1937. Now Hovenkamp has written a new single-volume overview of U.S. antitrust law entitled The Antitrust Enterprise: Principle and Execution.
Of course, the gold standard for this genre is Bork’s The Antitrust Paradox and I push my students towards Posner’s Antitrust Law, a second edition of which was issued in 2001. Like those books when they were published, it is easy to say that any serious antitrust participant should buy and read The Antitrust Enterprise. The book is a highly-readable, integrated perspective on the state of antitrust law in the U.S., written by someone who has both a historian’s sense of time and change and regulatory cycling and an up-to-date knowledge of current doctrinal twists. You should put it on your bookshelf and on one of the low shelves that you can reach easily while sitting at your desk.
Continue reading "Book Review: Hovenkamp's The Antitrust Enterprise" »
I recently re-read the Eighth Circuit’s 2005 decision addressing online gaming, reverse engineering and interoperability (Davidson & Associates v. Jung, 422 F.3d 630 (8th Cir. 2005)). The case raises the usual questions regarding open- versus closed-system competition, but it adds a twist and it is that twist that I want to focus on. As usual, I will come out on the side of evil, or at least evil as most of the copyright world usually sees these things.
Blizzard produces a variety of war games, including StarCraft and WarCraft. In 1997, Blizzard created an online gaming environment, Battle.net. At Battle.net, you could test your WarCraft skills against other users. Today, this is a common move in the game industry taking what had been a freestanding product—a game DVD or CD—and turning it into a full-blown service and a multi-player environment.
Lee Gomes’s Wall Street Journal column today discusses Chris Anderson’s new book The Long Tail. I should say up front I liked the book: it makes a serious point but remains quite accessible. Perfect beach reading. Gomes’s column suggests that he thinks that Anderson overclaims in the book; Anderson has a reply on his blog. And my former seminar-mate Tim Wu has a review at Slate. We should try to understand the core idea of the book and then consider the dispute.
Anderson’s focus is the unbundling of the shelf. Walk into a store and stare at a shelf. The shelf is both display—the way the products are visually presented to the consumer—and the fulfillment mechanism—you reach and pull the product off the shelf. Online stores unbundle the shelf: you see the product on Amazon’s web site and someone in a warehouse pulls the product off the shelf if you click and buy it.
Brad Smith, Microsoft’s General Counsel, doesn’t look much like Moses, but he came down from Mount Sinai yesterday anyway to announce Microsoft’s new “Twelve Tenets to Promote Competition.” This is about the structure of competition in the economic space defined by Windows. We should take stock on where we are in the Microsoft antitrust cases and then assess how the 12 Tenets fit.
Try this hypothetical. Writing a novel seems to be the thing for law professors to do these days, so I pen a law-and-economics thriller (how could it not be?). You want to read it but I have not released any copies but you know that I have one printed sitting in my bedroom at home. You break into my house, steal the novel, immediately read it, and blog a book review, which includes juicy quotes (“He had the supply, she had the demand, and in the heat of the moment they vertically integrated.”)
Where does this put us when the cops catch you? Do you go to jail? Can I sue you for copyright infringement?
The Kaleidescape video jukebox is a pretty simple idea: 5.5 terabytes of storage hooked up to your television. Store your DVD collection on it—up to 825 DVDs—and watch each one in an instant. No messy search for DVD boxes, a sizable fraction of which turn out to be empty (do people actually put away DVDs in your house)? A real video iPod: hundreds of selections a few clicks away. Sounds good? Not to the DVD Copy Control Association which sued Kaleidescape in late 2004. (Updated info on the lawsuit is here.)
What on earth can be the problem with storing your DVD collection on what after all is nothing more than a fancy, large hard drive? The answer tells us a great deal about tricky issues of the real business of lawyers—institutional engineering—when we are dealing with copyright and technology.
The New York Times reported Thursday that Wal-Mart has adopted a new policy of not prosecuting shoplifting if $25 or less is involved. Why has Wal-Mart gone soft? It costs too much to enforce the law, too much for Wal-Mart, and that is with Wal-Mart just focusing on its costs. The costs to the police of enforcing those laws are substantial; indeed, South Strabane Township in Pennsylvania (population 9,000) has one of its 16 officers tied up on Wal-Mart shoplifting duty. And Dan Filler notes how much of the local court docket is chewed up by shoplifting.
As Stephen Dubner points out, the change could give rise to some interesting empirical effects. He focuses on what the police will do now that they are not hanging out at Wal-Mart. I want to know how many more shoplifters well head to Wal-Mart and will they be careful to choose the $24.99 headphones rather than the really nice ones?
But my real interest here, raised before, is whether we would benefit by lowering the cost of enforcement, should we have such a technology available? If Wal-Mart and the police could drop the cost of enforcement 50% or more, is there any reason we shouldn’t want that?
Last Thursday, a federal district court judge ruled that CleanFlicks violated U.S. copyright law when it edited movies for sex, violence and language. CleanFlicks sought to claim protection under “fair use” but the court rejected that claim. The case is interesting in the way that it ties into the issue of digital rights management (posts here and here) and the question of how we will allocate control between content creators and content users.
We should start with some background on CleanFlicks. CleanFlicks does exactly what the name suggests. It edits out the bad parts of movies (or are those the good parts, I always get confused) to make movies more family friendly. Clean movies. Nick Gillespie at Reason nominates Titanic as a natural candidate. Very little violence in the movie (well, other than the thing with the iceberg and everybody dying in the end) and very little sex, other than one key scene in which Leo DiCaprio sketches Kate Winslet in the nude (Kate, not Leo), and you do get something of a lingering look at Winslet’s breasts. Take out the breasts and now we have family friendly.
Continue reading "CleanFlicks and Digital Rights Management" »
The Associated Press is reporting allegations that Ann Coulter plagiarized certain passages in her new, controversial book Godless (sorry, that was unforgivably redundant: anything that Coulter writes will be controversial; that is her particular niche after all).
I am no Coulter fan, but it is worth considering the allegations to help to orient ourselves in the world of copyright and plagiarism. At least in some cases, Coulter seems to have “borrowed” facts. Facts are in the public domain and are free to be repeated by all, and it is therefore important that we separate borrowing from fiction from repeating facts.
Ed Felten has an interesting post (“Freeing the Xbox”) about efforts to “hack” the Xbox to open it up so that it can run the Linux operating system. And Tim Lee at the Technology Liberation Front has a series of related posts on this issue. Ed notes that given the price/power combination of the Xbox, it is an attractive target. How we should we evaluate this? Here is what Ed says:
The real action here is in Microsoft’s strategy of selling the Xbox hardware as a loss leader, and the tendency of the Xbox Linux work to frustrate this strategy. Xbox Linux creates value for its users. Should public policy be willing to destroy this value in order to enable Microsoft’s pricing strategy? My instinct is that it should not, though there is a plausible argument on the other side.
This is a reasonably balanced statement, but I don’t think that this is still the right way to frame this issue, and I do want to make clear the other side. Ed puts it as users vs. Microsoft, but this is as least as much about user vs. user and we have to understand what the Linux hack means for people playing games on the Xbox.
The blogosphere has reacted with horror at the notion that the RIAA—the Recording Industry Association of America—might take action against YouTube for hosting content using recorded music without permission. Cory Doctorow of the Electronic Frontier Foundation characterizes this as “crazy, of course,” while John Battelle, author of The Search (a good book: my review here), puts the point more colorfully: “Wake up. This is how we use music in the read world. Get over yourselves.”
YouTube is the next future of television. Maybe or maybe not, but YouTube and sites like it are scorchingly hot right now. These sites host video content created by users (user-generated content or amateur content). Some of the content is extraordinarily good (my favorite: 10 things I HATE about commandments (watch it twice and count the number of probable copyright violations the second time)), most is dreadful. As Cory Doctorow’s post makes clear, the RIAA has not said that they would pursue action again these sites or the consumers creating the content.
For the music industry, this is a not-so-golden oldie and the conflict illustrates the persistent gap between actual law and the public’s knowledge of that law and, frequently, perceptions of fairness. On these facts, far from being crazy or somehow a misuse of copyright, I think that music copyright holders have a straight-forward action against YouTube. To see that, we should start in 1917.
Continue reading "ASCAPing YouTube: This Is How We Pay for Music in the Real World" »
This afternoon, announcing that the “fourth try is a charm,” the D.C. Circuit upheld the Federal Communication Commission’s unbundling rules. If that statement doesn’t strike you as wondrous, it means that you are not a telecommunications person—lucky you—but also means that you are not sufficiently curious. (“You mean the FCC issued three sets of complicated rules over a decade, the courts rejected all of those, and now finally, on the fourth try, the D.C. Circuit blessed the rules?”)
Yes, exactly. A quick review. In February, 1996, Congress enacted a new telecommunications law, known to all as the Telecommunications Act of 1996. That statute required the FCC to issue the required rules in six months. Now, June, 2006—only ten years late—we finally have rules that have made it through the courts, assuming of course that the Supreme Court doesn’t jump in (which it did twice before).
How did we get into this mess?
Continue reading "Stop the Presses: FCC Unbundling Rules Upheld!" »
Like doctors, lawyers should aspire to do no harm. Well, we should hope to do much, much better, but we should settle for not doing any harm. It doesn’t always work that way, though, as recent news concerning Microsoft makes clear.
Start with good news. At the end of last week, Dell and Google announced a new deal under which, we all assume, Google will pay Dell to pre-install Google software on Dell machines. As that deal suggests, even in today’s networked world, pre-installation of software is valuable. Skype—the free voice-over-IP software—has also reached a deal with Dell. The U.S. antitrust remedy in the Microsoft case hoped to create greater competition for pre-installed software and seems to be doing exactly that. Chalk one up for the lawyers.
But now the bad news: consumers are going to find it harder to get new tools from Microsoft and will have to pay more to get them.
Continue reading "Remedies in Microsoft: Be Careful What You Ask For" »
Lior’s two recent posts on driving focus on the possibility of distributed reputation systems as a means of enforcing driving rules (and more generally). I want to consider a different alternative: automatic tickets.
I haven’t received that many driving tickets over time, but it is always startling to see the flashing blue light behind you. We had a new startle the other day at my house: my wife got a ticket in the mail for—I will say allegedly—running a red light. No blue lights, no “may we see your registration, please mam,” just a ticket in the mail with two pictures. One picture purported to be our minivan and a red light—very hard to make out the color of the light in the picture— the second was a close up of our license plate. The ticket says that all of this was done automatically. (In my wife’s defense, I was test-driving a new car in front of her and she was following me to the dealership’s remote lot; I should have stopped on the yellow to keep the cars together; mea culpa (though my wife doesn’t read the blog).)
But the issue of interest is the title of the post: do we like automated tickets (and what does that have to do with the Digital Millennium Copyright Act)?
Continue reading "More Driving: Do We Like Automated Tickets?" »
Why are cops needed in Times Square but not on a small town's Main Street? Why are small town drivers so much safer than big city drivers? Why do blog commenters sometimes say harsher, meaner, sillier or more unorthodox things than they would dare say to their friends or family? These are complex questions that defy simple and singular answers. But one partial answer that draws together these three examples is the role of anonymity and obscurity. Reputation may be the most effective mechanism around for getting individuals to behave in a socially cooperative way; more effective than law and more effective than conscience or altruism.
In my earlier post, "How's My Driving?" for Everyone, I discussed whether we might rely on reputation and feedback mechanisms (similar to those used on eBay) to improve the performance of urban drivers. The paper that I was blogging about focuses on driving. But it implicates a much bigger issue too. Namely, as reputation and feedback systems become more reliable, more ubiquitous, and less expensive, we can expect to see these systems displace criminal and tort law as mechanisms for social control. After the jump, I will offer some thoughts about the effects of that displacement.
Yesterday, the Free Software Foundation launched a new anti-DRM initiative—in real space quite-cleverly in the yellow suits worn to manage toxic wastes and online at defectivebydesign.org (“There is no more important cause for freedom than the call for action to stop DRM from crippling our digital future”). As Peter Brown, Executive Director of the FSF put it: “In any other industry, such limitations or invasions would be considered major flaws. A media player that restricts what you can play is like a car that you won’t let you steer. Products containing DRM are defective—only, unlike other products, these defects are deliberately created by an industry that has long stopped caring about us.”
Earlier this month, I gave a talk on DRM for our alumni weekend (slides available here and a forthcoming paper here). I started the talk with a description of what we might label the three eras of copying technology. Think of these as monk time and the era of the scriptorium; the time of Gutenberg’s asymmetry; and the era of cheap copying, dated say from 1959 with the launch of the Xerox 914, the first automatic plain paper copier.
Continue reading "Digital Rights Management: Defective By Design?" »
Arsenal lost 2-1 to Barcelona in an epic Champions League final played this evening in Paris. (If you don’t follow football as they call it over there, think the Super Bowl, only more important (more people in Europe; soccer has a bigger mind-share; plus national overtones (Arsenal is based in London and you know where Barcelona is)). Arsenal and Barcelona have some of the best footballers in the world (or at least the best that Chelsea money can’t buy). Arsenal goal-keeper Jens Lehmann (and the starting keeper for the German National team in the upcoming World Cup) was booted out of the game in the 18th minute, so Arsenal played 10 on 11 for most of the game, and with a second-string keeper to boot. Arsenal led 1-0 for most of the game, but Barcelona closed with two late goals to take the win.
Now for modern communications. Last year, a group of LLM students were nice enough to give me an Arsenal jersey (thanks again!), which I wore today (my 12-year old son is a big Arsenal fan). I “watched” the game at the Law School by reading the BBC’s text feed about the game (not video on demand as I did with March Madness). As I was walking home from work roughly an hour after the game was over, three people—I passed 10 or so—stopped me to tell me what a tough loss Arsenal had suffered. Three!
ESPN2 had the game on live today, and we taped it (actual VCR tape still works), so we will have to see if it was exciting as it seemed in text at the BBC.
Over at IPCentral, I am writing and blogging this week about a possible new solution to the problem of patent holdouts. The core idea is relatively simple:
A patent holder whose patent is made public after some relevant technology has been widely adopted can demand not only a royalty that reflects the intrinsic value of that technology but also a royalty that reflects the value of each infringing firm's technology-specific investments. This is the familiar patent holdout problem, and it particularly plagues the standard-setting process. Importantly, and the insight missed both in practice and in the literature today, the greater the number of patent holders in this holdout position, the less each can expect to earn from this tactic. That is, if fifteen patent holders can credibly threaten to shut an infringer for six months while that firm redesigns its products and services, the value associated with avoiding six months of disruption must be split fifteen ways. If three hundred patent holders can credibly make that threat, the pro rata share drops by a factor of twenty. More patents means less money per patent holder. Less money, in turn, means less of an incentive for a firm to strategically delay in the hopes of being a patent holdout, and less of an incentive for an accidental patent holdout to actually bring suit.
A few weeks ago, I was driving to the airport in Seattle. Traffic was flowing reasonably well on the freeway. Just two car lengths ahead of me, a driver in a pickup truck began swerving violently between the two leftmost lanes, nearly colliding with a minivan. The minivan blared its horns and the pickup driver proceeded to drive like a maniac for the next half mile or so, violently jerking his car from lane to lane, swerving unpredictably across multiple lanes, and forcing numerous drivers to brake suddenly and become agitated during an otherwise uneventful morning commute. The pickup driver then swerved for the exit ramp, and abruptly left the freeway.
This scenario -- atrocious driving on the freeway by an anonymous motorist, observed by dozens of bystanders, yet sanctioned in no meaningful way -- plays out thousands of times daily on American freeways. The police can’t be everywhere, we rarely know the people driving near us on the freeways, and this combination of rare surveillance and practical driver anonymity contributes substantially to aggressive driving. Largely as a result, vehicular collisions are the leading killer of Americans aged 15 to 29. I have just posted a brand new paper on SSRN (free download available here), that shows how the law can take much better advantage of the information that you and me obtain about our fellow motorists every day on the roads. The paper, entitled, “How’s My Driving?” for Everyone (and Everything?) (forthcoming NYU Law Review, Nov. 2006), advocates mandating the placement of “How’s My Driving?” placards on the bumpers of every car and truck in the United States. My paper argues that with a universal “How’s My Driving?” program, we can reduce vehicle accidents, dramatically lessen our expenditures on traffic police, improve the functioning of the tort system, and curtail road rage and driver frustration. The best available studies suggest that the use of “How’s My Driving?” placards and monitoring systems on commercial vehicles is associated with reductions in accidents of between 20 and 53 percent. There are strong reasons to believe that similar accident reductions could be achieved nationally if “How’s My Driving?” placards were mandated in all vehicles, and that thousands of lives could be saved every year as a result.
I am not sure that one can ever describe a 10-page, unanimous opinion for the Supreme Court as badly fractured, but eBay v. MercExchange might be that case.
The simple version is that the Court unanimously holds, in an opinion by Justice Thomas, that the “well-established principles of equity” for granting a permanent injunction apply to disputes arising under the Patent Act. The Court won’t “lightly” imply exceptions to general equitable practice, and after wrestling briefly with a couple of sections in the Patent Act, concludes that the standard off-the-rack rules for permanent injunctions should apply to patent cases. Neither lower court did that, so reversed and remanded to the district court for a first crack at the problem.
Now for the fracturing.
Two quick items:
1. The Supreme Court decided the eBay case today, one of the key patent decisions before the Court this Term. The opinion is here; eBay wins; the syllabus is below the fold.
2. If you are into C&C—that would be content & carriage—the New York Times had three very interesting articles yesterday. Start with Kevin Kelly’s “Scan this Book.” The article is worth more attention in a subsequent post, but here is what I tag as the most interesting/controversial suggestion: “Copyrights must be counterbalanced by copyduties. In exchange for public protection of a work's copies (what we call copyright), a creator has an obligation to allow that work to be searched. No search, no copyright.” Then read Richard Siklos’s Media Frenzy column on the tricky issues in converging TVs and PCs. Finally, read Jacques Steinberg’s piece on the current state of moving TV content to the Internet and the difficulties that can arise from divided ownership.
The New York Times’s Sports Section had another plagiarism story yesterday, this one relating to NBC’s broadcast of the Kentucky Derby. Apparently in the pre-race show, NBC ran through the challenges faced by a number of the participants, including Michael Matz, the trainer for eventual-winner Barbaro. Matz had been in a plane crash and rescued three kids. Sounds like genuine heroism.
NBC captured this by using language from the television show West Wing, which had its series finale Sunday night. The borrowing of West Wing dialogue took two forms. Tom Hammond, one of NBC’s announcers, stated that Matz “ran into the fire to save the lives of three children,” and then paused and repeated, “ran into the fire.”
For those of us who are West Wing watchers—my wife and I netflix it and just started season 6—that line immediately resonates. Fictional President Jed Bartlet, played by Martin Sheen, delivered that line in an end-of-episode speech, a line written by heartthrob speech-writer—this is fiction remember—Sam Seaborn, played by Rob Lowe. The NYT also quotes a second line read by Hammond and matches that with corresponding text from West Wing.
NBC has already conceded the plagiarism and has said that it will no longer accept work from the responsible freelance writer. Last week, I raised the question of the relationship between plagiarism and copyright’s fair use doctrine. What should we think of this situation?
Philadelphia approved today its deal with EarthLink to turn Philadelphia into a giant Wi-Fi hotspot. Philadelphia is usually described as the first large city to head down this path, though many smaller cities have already done so. (MuniWireless.com has detailed information about many of these efforts.)
I recently gave a talk on Telecommunications Entry and Preemption at a conference on preemption at the American Enterprise Institute. The conference was organized by our Richard Epstein and Michael Greve of AEI. You can find the papers here (and my paper in particular here).
My paper addresses past efforts in choosing jurisdictional level for telecommunications entry—cable franchising, the Pole Attachments Act of 1978 and satellite television—and also looks at municipal wireless broadband and video franchising for IPTV (television over fiber from new video entrants such as AT&T and Verizon).
I also have slides and AEI has a webcast here (click on the video link in the upper-right corner). (The webcast audio is perfect but the video reveals the dangers of a peripatetic speaker.) I will do a second draft of the paper over the next month, so if you have comments here or via email, please let me know.
Randall Stross who writes the Digital Domain column for the New York Times has an interesting column today on the difficulties that digital video recorders pose for ad-supported television—free TV—and he also addresses how circumstances have changed since the Supreme Court’s decision in Sony in 1984 regarding home-taping—time-shifting—as fair use. Stross and I had a lively conversation last week about the issue.
If you would like to read more, I have a fairly extended treatment of this issue in my paper “The Digital Video Recorder: Unbundling Advertising and Content” (here as a pre-publication version and here, the 2004 published version if you have access to Hein Online).
Update: Copyright guru Bill Patry addresses this in a new post.
One of the core tenets of the open-source movement is that “all bugs are shallow.” With enough eyes looking at the code, someone will figure out a lurking problem and will do so easily. Copyright should have its own version of this: all copying is shallow and all plagiarism is shallow. With enough readers, authors will learn if their work has been copied.
Kaavya Viswanathan’s novel “How Opal Mehta Got Kissed, Got Wild and Got a Life” was recalled last week after it appeared that Ms Viswanathan had copied a substantial number of passages from two other novels, “Sloppy Firsts” and “Second Helpings,” both by Megan McCafferty. Now, according to a report in this morning’s NYT, it appears that other passages in the book may have been copied from “Can You Keep a Secret?” by Sophie Kinsella. The remix culture—take pieces from many sources and recombine them in a new work—has come to text.
My Spring seminar is entitled "Antitrust and IP Policy Seminar: Copyright Classics." We are reading classic articles from the secondary copyright literature. Students will be posting on the articles and commenting on the posts of their fellow students. The blog is open to the public; only students can author original posts but anyone can post a comment. The blog is at http://picker.typepad.com/picker_seminar/.
This week we are reading then Professor Breyer's 1970 Harvard Law Review article "The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies and Computer Programs." (84 Harv. L. Rev. 281)
Not of the movie, of course. I haven’t seen it and indeed, my wife and I haven’t been to an adult film—I don’t mean porn (though BI2 may qualify), I just mean a movie that you go to without your kids—in a theater in years.
Instead, I want to focus on the interaction between the MPAA’s content ratings system and versioning—multiple versions of the same content—and windows—the time periods between releases of versions.
As every movie watcher knows, the Motion Picture Association of America has a trademarked rating system for movies: G; PG; PG-13; R; and NC-17. The trademarks are important. The NC-17 rating—for films that “most parents will consider patently too adult for their youngsters under 17”—replaced the X rating. The MPAA didn’t trademark the X and the porn industry glommed on to it with glee (XXX must be three times as good as X).
I spent a chunk of yesterday afternoon doing field research. Law professors do much too little of this, so I wanted to step up to do my part.
This means that I watched the end of the Boston College/Pacific game in the first round of the annual NCAA Men’s Basketball tournament, known around the world as March Madness. Of course, I watched the game over the Internet as part of MMOD: March Madness on Demand. No TV set required: just my computer and the bandwidth of the Law School’s network. That makes it research, and not just TV watching.
What did I learn in my visit to the field? (Oh, by the way, Boston College, predicted by some to win the tournament, won, but in double overtime.)
I need to do a second DRM post to follow up my last post—and if you haven’t read Ed Felten’s posts (here and here), you should—but before doing that, let me raise a different question. I just completed 3+ class sessions on Microsoft in my antitrust class. Here is the question: to what extent do we think that the current competitive structure in computers and the Internet is because of—or in spite of—the U.S. and EU cases against Microsoft?
Inspired in part by David Friedman, I am this year scrapping my normal seminar on “current legal issues in law and technology” and replacing it instead with a seminar more focused on the future. Specifically, this year, I want to identify technologies and social norms that might very likely change in the next five to ten years, and I want to think through how those changes will affect law, business, and culture.
Imagine, for example, that in five years every product comes with a working RFID tag that announces via radio signal what the product is. What business models will change as a result, and in turn what legal structures and social norms will give way? Imagine instead that financial transactions shift fully away from paper money and toward online intermediaries like PayPal. What banking rules will come under pressure, and what implications are there for other aspects of society? What if every city does what Philadelphia and Chicago are doing, namely rolling out government-sponsored WiFi Internet access that covers the downtown area? Or what happens when a large percentage of the workforce starts telecommuting across international political boundaries?
I am giving a talk Sunday—yes, law profs work the odd Sunday—on DRM at the Digital Broadband Migration conference in Colorado. Since Doug Lichtman has been talking about DRM on the blog this week, I thought that I would jump in with a preview of my talk (and forthcoming paper).
Try four ideas:
1. The Sony BMG rootkit fiasco makes clear how difficult it will be to make add-on DRM work for music CDs.
2. Even when DRM is introduced into a technology from the getgo, such as was attempted with the digital television broadcast flag, that technology may fail as people who get the content will have a shared interest with professional decryptors in removing content limitations.
3. Meaningful DRM may need to be identity-based, meaning that we can glean the identity of the content purchaser from the content itself. Again, it will be hard to inject identity into one-to-many—broadcast—approaches to content distribution, be that for digital television or high-def audio. In contrast, as we drop physical media such as music CDs and DVDs and switch over to online distribution of content—iTunes and Google Video—we can add identity-based DRM if we want to do so.
4. Identity may suffice, but we might conclude that we need to do more. We may need to give content purchasers reasons to be reluctant to deal with professional decryptors. Put differently, we may need to add mistrust to DRM schemes.
Take these one by one.
Continue reading "Adding Mistrust to Digital Rights Management" »
In the current issue of IP Law & Business, I wrote a column on DRM—that is, a column on the many “digital rights management” technologies that today allow copyright holders to in various ways restrict access to their work. DRM has earned itself a bad reputation in recent months. The DRM on some recent music CDs, for instance, turned out to inadvertently expose purchasers to substantial computer virus and malware risks. Nevertheless, my column is somewhat upbeat. I make two basic points.
Larry Lessig posted this week a synchronized set of slides and audio addressing Google Book Search as fair use. The talk runs for 30 minutes but ultimately the core point is simple and I think relatively conventional: transactions costs matter for the scope of allowed fair use. The suggestion here is a transaction-cost based opt-out model: for low-cost of consent holders, GBS has to ask permission, but for high-cost of consent holders, GBS need not ask permission, but instead those holders have to opt out.
Continue reading "Google Book Search and the Transaction Costs of Consent" »
In the current issue of Regulation Magazine, Mark Lemley, Bhaven Sampat and I write about patent reform. Our launching point is the simple fact that, at the time patent applications are reviewed, the Patent Office has no way to identify the small number of applications that are likely to end up having real economic consequence. Thus patent applications are for the most part treated alike, with every application getting the same -- and by necessity sparse -- review. We then urge in response three basic reforms.
I have blogged twice before on Google Book Search (Nov. 18: “Hypos for My Copyright Class” and Nov. 11: “Fair Use and Inefficient Bundling”), but having started a new quarter of antitrust today, I am now starting to use GBS more systematically. That use has quickly raised a number of questions regarding how we will work with public domain works and with government works.
Tomorrow I am teaching excerpts from the Supreme Court’s 1911 opinion in the Standard Oil case. That case resulted in the break-up of Standard and killed off the literal reading of Section 1 of the Sherman Act announced by the Court in Trans-Missouri in 1897.
The Standard Oil opinion describes the development of the English monopoly law of forestalling, regrating and engrossing. Don’t know what those are? Me either, really, but that’s where GBS comes in.
Continue reading "Working with Google Book Search (and Making it Better)" »
Last week, Warner/Chappell apparently sent a cease & desist letter to a firm whose software helps users find and use song lyrics. That letter has touched off a flurry of discussion in academic circles about how copyright law should treat song lyrics. It seems that almost everyone agrees that I can listen to my favorite Neil Diamond song and write down the lyrics for my own enjoyment. Reasonable minds disagree, however, over how much outsiders can help me, for instance by running a website that lists song lyrics or providing a tool that helps me find song lyrics online.
I think the merits here are tricky, but the battle provides an opportunity to sharpen a point often missed in discussions of fair use: a use might be fair when inefficient and awkward, but not fair at all when efficient, large-scale and streamlined.
An example: photocopying.
Continue reading "Copyright, Music Lyrics, and Neil Diamond" »
The last few weeks have been bad ones for SonyBMG. The music giant included copy-protection software on many of its recent CDs, and that software turned out to expose purchasers to significant security risks. In one case, for example, the software hid itself on the purchaser's computer in order to stop the purchaser from disabling the software; but now virus writers can use that "hidden" section to sneak in other unwanted code, like dangerous viruses. The result has been a PR disaster, a massive recall of protected CDs, and now also a series of filed lawsuits. Ed Felten has a fantastic series of posts on all this and I would encourage anyone with interest in the details to read those posts with care.
On the legal side, meanwhile, the EFF's Fred von Lohmann has been offering a great deal of commentary on the controversy, and it is no overstatement to say that Fred is downright gleeful to see SonyBMG stumble in this way. Writes Fred:
So here's to the eventual demise of DRM [digital rights management] on digital music. Once the DRM is gone, we can see what a real, robust, competitive digital music marketplace looks like.
I think, by contrast, that Fred's enthusiasm is at best premature and most likely embarrassingly wrong. Despite what Fred says, this is not the end of DRM, and the end of DRM is certainly not something to celebrate in any event.
As Eric Goldman notes on his blog, the Seventh Circuit issued an opinion yesterday in BMG v. Gonzales. The appeal squarely raised the question of whether downloading copyrighted music without permission using a peer-to-peer network is plausibly "fair use" and hence excused from liability. Judge Easterbrook, correctly in my view, thought not.
Along the way, Easterbrook includes two interesting discussions that seem likely to have broad implications.
There's an interesting Times article today on the latest form of outsourcing, and Greg Lastowka, who has written neat scholarship on the law of virtual worlds, blogs about it here. Essentially, large numbers of Chinese workers are employed playing videogames in virtual worlds for twelve hours a day, earning gold, weapons, and armor, which they then sell to Westerners who want virtual gold, weapons, and armor but have more real-world income than time or skill for gaming. If the Times has it right, then this has become a major industry in China.
All of this raises something of a puzzle: Why don't software developers cut out the middleman?
Continue reading "Gold Farming & Cutting out the Middleman in Virtual Worlds" »
Picture, actually. c|net, the leading online info source for news and technology, has republished my Nov. 4th post on this blog regarding Amazon's new digital book services ("Buy the Book, Get the Search Service"). The content is the same, so no need to click over, unless you really, really want to see my new official law school picture.
In my last post on Google Print—since rechristened Google Book Search—I raised a particular law and economics concern about the project (see Fair Use and Inefficient Bundling). That post generated a flurry of comments—thanks!—and now I want to try a different approach to assessing the project: the world of the law school hypothetical. Try two different versions of what Google Book Search is doing to evaluate the actual project.
Google Index: In truth, for most books, the index at the back of the book leaves much to be desired—academic speak for the average index stinks. In the rush to the finish the book, the author or the publisher slaps a list of terms and page numbers together, and voila, the index is done. Larry and Sergey know this, so they announce the Google Index project. Google will scour the world for the best indexers, promise them as much free chicken-apple sausage as they can eat, and give them each a stack of books. Read the book, create an index, and put the index online. (We could also imagine a wiki-index project if you prefer less centralization.)
Continue reading "Google Print: Hypos for My Copyright Class" »
I am running my online workshop group blog this week, where we are discussing Julie Cohen’s forthcoming paper “The Place of the User in Copyright Law.”
Yesterday, Doug Lichtman asked the question “how should we decide when a copyright holder is entitled to earn revenue from a new technology.” He said that he didn’t have an answer yet, and I don’t either, but I do think that we need to talk about fair use and how it can operate as an inefficient bundling of rights.
Consider this set up. We have a book published on paper. All consumers value the paper copy of the book at $8. Some consumers are happy as clams with just paper. Other consumers would love to have a digital, searchable copy of the book to go along with the paper copy. Those consumers would value bundle of a paper copy and a digital copy at $12.
If the copyright owner didn’t fear copying—either of the physical book or a digital copy—what would she do?
Continue reading "More Google Print: Fair Use and Inefficient Bundling" »
How we watch television changed this week. If innovation adoption typically tracks an S-curve, we seem to be swooping upwards. I wish that I could say the same for the regulation of television, but unfortunately legal progress moves much more slowly, if at all.
CBS and NBC announced new deals this week to make available on-demand popular television shows soon after they are regularly broadcast (here in the WSJ (and free this week as the Journal tests expanding its free content) and also here at c|net). ABC has already moved to do this in its deal with iTunes (see my prior post on this), but these deals are even more significant, as you will be able to watch the shows on your TV, and not just your iPod.
Continue reading "Watching TV (and Regulating TV Watching)" »
There is a lively conversation underway across the Web regarding Google Print. I posted some thoughts a few days ago here, and now (among many others) Larry Lessig and Jim DeLong have joined in, with the conversation continuing in the comments section of Lessig's post and in a second post from Jim.
All that has led me to a question to which I do not yet have a well-formed answer: how should we decide when a copyright holder is entitled to earn revenue from a new technology? Consider, for example, movies. If I make a movie based on your book, and my movie hurts sales of your book, I take it that it is easy to agree that I should have to share some of my movie revenue with you. The new technology in that case displaced sales of the old one, and the law likely should help to dampen that blow, in this case by requiring movie producers to license the work. But what if it were the case that movie sales did not at all diminish book sales?
Next Monday, November 14th, we will start our next version of the Picker MobBlog (located at picker.typepad.com) . When we did our first version of this last June in connection with the release of the Supreme Court’s opinions in Grokster and Brand X, I described what we were doing:
Think of this as a “smart mob” blog (or not so smart, you tell me). The idea is to bring together a group of interested people to blog on a particular topic, do so, and disband. I will post on the blog intermittently between mobs, but the mobs will be the heart of the blog. I think of this as an online reading group or an online workshop.
On Monday, Julie Cohen of Georgetown Law School will present her new paper “The Place of the User in Copyright Law.” Julie will do an initial post on the paper and then participants in the mob will comment on it. The mobblog will run Monday through Wednesday or so.
This mob will consist of Ed Felten (Princeton, Freedom to Tinker blog); Wendy Gordon (Boston University); Doug Lichtman (Chicago); Jessica Litman (Wayne State); Joseph Liu (Boston College); Lydia Loren (Lewis & Clark); Michael Madison (Pittsburgh, madisonian.net blog); Bill Patry (Thelen Reid, The Patry Copyright blog); Larry Solum (Illinois, Legal Theory blog); Jim Speta (Northwestern); Rebecca Tushnet (Georgetown, her blog); Fred Von Lohmann (Electronic Frontier Foundation); and Phil Weiser (Colorado).
We hope that readers of this blog may find the focused discussion interesting and we invite readers and comments.
The digitized book market exploded this week. Google Print went live and Amazon, Microsoft and Random-House each announced new programs. The copyright issues in the lawsuits against Google Print are worth separate attention, but I want to focus on the interesting aspects of Amazon’s announcement. It says a great deal about the important issue of how we will sell digital texts and what that means for copyright law.
Amazon announced Amazon Pages and Amazon Upgrade. Pages is a pay-per-page model. Want to read only the juicy parts of the latest tell-all? You could go to the bookstore and stand there flipping through the book with a clerk looking over your shoulder, but now, with Pages you can go legit: you can just search for “Monica Lewinsky,” pay for the two pages you really want to see and be done with it.
I guess when you are interested in something, everything looks interesting, but this seems like an especially interesting week at the intersection of law and technology. I posted yesterday on the telcom mergers approved by the FCC on Monday.
Here is my list; add yours in the comments.
On Monday, the Federal Communications Commission approved the merger of SBC and AT&T and of Verizon and MCI. Last week, the Department of Justice completed its parallel review process under the antitrust laws and also greenlighted the mergers, subject to a handful of modifications.
Telecommunications mergers always give me a hankering to watch the second of the Arnold Schwarzenegger Terminator movies, known to its fans as T2: Judgment Day.
On Friday, October 21, 2005, the Law School's Intellectual Property Law Society presented a discussion with Professor Douglas Lichtman and Professor Randy Picker about the Grokster decision. The panel can be heard right now by clicking here. Or, better yet, download the file to your mp3 player and listen on the go. (Lichtman; Picker; Grokster; at the gym; in the car; what could be better than that? What?? Ok. Fine. Here are Picker's very nifty slides. Happy now?)
Instructions on how to download are now available here, including instructions on how to have our audio content automatically delivered to your iPod every time a new post comes up. We've also included a modified version below the fold for easy access.
Over the weekend, I read John Battelle’s new book, The Search: How Google and Its Rivals Rewrote the Rules of Business and Transformed Our Culture (Portfolio, 2005). Battelle was a cofounding editor of Wired magazine—culture, life and technology for the digerati—and founder of The Industry Standard, an Internet-focused magazine that rose and fell with the bubble. Battelle also blogs on search.
The Search details the rise of Google from Larry Page and Sergey Brin’s days as Stanford graduate students and their research on search algorithms to the start-up—yes, there was a garage—through the Google IPO (do look at Google’s unique S-1 if you haven’t). Google is sufficiently important that that story alone would make the book a worthwhile read, but Battelle does substantially more.
If plastics was the one word for Benjamin Braddock, then today’s word is clickstream.
Lots of related news stories this week; such is the nature of business coevolution.
Take this group of stories. Monday the Wall Street Journal had a front-page story (paywall I assume) on podcasts, not by the blog forward wave but instead by ABC News and Clear Channel. The same day, the New York Times ran a story on efforts by the Japanese music industry to impose a content tax on iPod sales in Japan. This would be a royalty tax, and the revenues would be distributed among the participants in the music industry.
On Wednesday, Apple introduced a new iPod for video (stories here and here). That same day, Apple reported that its quarterly profit had quadrupled. And on Thursday, the Wall Street Journal ran two stories (here and here) about how Comcast was altering its strategy, including teaming up with Google to buy a piece of AOL.
What is going on? The answer is the ever-changing role of RAZRs and Blades. Well, not really RAZRs and Blades but razors and blades.
I want to return to my prior post from Tuesday questioning the utility of peer-to-peer file distribution. That post has spurred a number of responsive posts (from my colleague Lior Strahilevitz here, from Ed Felten here and from Brett Frischmann here), plus extensive comments from Tim Wu and others. (Tim and I co-taught an innovation policy seminar in the Spring, so this is part of a continuing conversation.)
Both Lior and Ed focus on the question of control. I think that that is exactly the right issue, but we should see what to make of it. Unfortunately, I think we need to start with questions of telecommunications and computer engineering before we can turn to law and economics. I say unfortunately as I suspect that I’m at a comparative disadvantage relative to Ed (who is as you may know a Princeton computer science prof) and Tim, who spent a number of years in the Valley at a network equipment firm. Nonetheless, in the great tradition of lunch at the University of Chicago Law School, I will plunge ahead fearlessly.
The social networking site Friendster got into a lot of trouble with some of its members recently by changing its ground rules. Friendster, along with similar social networking sites, allows individuals to create profiles of themselves on the Internet and then look up profiles belonging to friends, potential romantic interests, and long lost acquaintances. One of Friendster’s neatest functionalities is the ability to see beyond one degree of separation (i.e. to friends-of-friends), which exponentially expands the range of one’s possible social contacts. (For a paper on social networks and their privacy implications, go here.)
Randy raises a fascinating question below about the appropriate uses for Peer-to-Peer technologies, and he and Tim Wu have begun an interesting dialogue in the comments. Let me suggest an alternative answer to Tim’s.
Peer-to-Peer technologies have substantial utility in those circumstances where anonymity or decentralization are desirable. So, as Ian Clarke has long argued with respect to Freenet, peer-to-peer can be an effective mechanism for enabling free political speech in those parts of the world that have repressive governments. It is relatively easy for a repressive government to shut down one or a dozen central servers, but virtually impossible for them to shut down all content-hosting peers, unless they’re willing to turn off Internet access altogether. Similarly, with central severs, it is much easier to compile a list of the Internet addresses belonging to content downloaders, but much harder to do this effectively when the distribution channels are peer-to-peer. There is enormous potential for these kinds of technologies to promote freedom and democracy in authoritarian regimes and robust, uninhibited debate in freer societies where legal liability concerns and social norms constrain discourse unduly.
Continue reading "Taking Freenet Seriously: A Response to Picker on Peer-to-Peer" »
Absolutely nothing, say it again. That overstates—probably—but I think that there is more to that statement than meets the eye. Doug Lichtman addressed Google Print this morning, which raises interesting and contested copyright issues focusing on fair use. Google Print is one approach to bringing content online.
I want to focus instead on two different contexts in which we bring work online: public domain works and shared photographs. Project Gutenberg is probably the leading example of distribution of public domain works, though Yahoo announced this week that it will work with the Open Content Alliance to bring public domain works online. Photographs are shared on a variety of websites, flickr and Photobucket are two well-known sharing sites.
Here is the question that I am interested in: what content should be distributed on a peer-to-peer basis and why?
Last week, the Author's Guild filed suit against Google, arguing that Google's new "Google Print" project infringes copyright. The blogosphere has been abuzz on the topic, with (among others) Jack Balkin, Tim O'Reilly, and Larry Lessig weighing in strongly on Google's side. But I'm not so sure, for reasons I want to develop a bit here.
For those of you who haven't followed this one, the question is whether Google can build a searchable index that allows queries against a database of print books that Google itself scans in. Google has already begun the scanning, and Google's basic position is that it can scan any book it wants, even without the copyright holder's permission. In legal terms, Google's contention is that it is fair use to scan a book without permission if the purpose of the scan is to then create an a search engine that will return only snippets of the work.
I have several concerns with such an argument.