Google Book Search is a Fair Use

Back in 2005, I wrote that Google Print "may single-handedly keep the copyright-related blog world in business for the next few years." Eight years later, the Southen District of New York decisively granted Google's motion for summary judgment that the book scanning project is fair use. The Authors Guild v. Google (SDNY, Nov. 14, 2013)

The book search does not provide a competitive substitute for the actual book:

"An 'attacker' who tries to obtain an entire book by using a physical copy of the book to string together words appearing in successive passages would be able to obtain at best a patchwork of snippets that would be missing at least one snippet from every page and 10% of all pages."

1. The Purpose and Character of the Use
Google use of the scanned books' text to create a search index and display search result snippets is "highly transformative. Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books."

While books are used to convey information, Google uses the text differently:

"Google Books thus uses words for a different purpose -- it uses snippets of text to act as pointers directing users to a broad selection of books.

Similarly, Google Books is also transformative in the sense that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research. Words in books are being used in a way they have not been used before. Google Books has created something new in the use of book text -- the frequency of words and trends in their usage provide substantive information.

Google Books does not supersede or supplant books because it is not a tool to be used to read books. Instead, it "adds value to the original" and allows for "the creation of new information, new aesthetics, new insights and understandings." Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. at 1111. Hence, the use is transformative.

Even though Google is a commercial enterprise, it isn't using the book scans in a commercial manner: "Here, Google does not sell the scans it has made of books for Google Books; it does not sell the snippets
that it displays; and it does not run ads on the About the Book pages that contain snippets. It does not engage in the direct commercialization of copyrighted works."

Thus, the first factor "strongly favors" a finding of fair use.

Would the outcome here be different is Google ran ads against book content and searches? If it sold books through its own book store?

2. The Nature of Copyrighted Works
Books are the paradigmatic protectable copyrighted works -- after all, copyright wouldn't exist but for books. But works of fiction are entitled to greater protection than non-fiction books. Most of the books scanned by Google are non-fiction. Further, the scanned books are published and available to the public, which favors a finding of fair use.

3. Amount and Substantiality of the Portion Used
Google does scan the entirety of the works. However, full-text copying is required in order to be able to index and search the books. "Significantly, Google limits the amount of text it displays in in response to a search." Because Google scans the entire works, the third factor weighs slightly against a finding of fair use.

4. Effect of Use Upon Potential Market or Value
Google's book search does not replace or compete with actual books.

"Google does not sell its scans, and the scans do not replace the books. While partner libraries have the ability to download a scan of a book from their collections, they owned the books already -- they provided the original book to Google to scan. Nor is it likely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book. Not only is that not possible as certain pages and snippets are blacklisted, the individual would have to have a copy of the book in his possession already to be able to piece the different snippets together in coherent fashion.

To the contrary, a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders. An important factor in the success of an individual title is whether it is discovered -- whether potential readers learn of its existence. Google Books provides a way for authors' works to become noticed, much like traditional in-store book displays. Indeed, both librarians and their patrons use Google Books to identify books to purchase."

The fourth factor weighs strongly in favor of a finding of fair use.

Finally, Judge Chin rules, "Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders."

This is a decisive ruling that scanning book content for indexing, searching, and educational purposes is fair use.

Discussion and Commentary
Evan Brown, Information Law Group, What the Google Book Search Fair Use Decision Means For Innovators: "Google’s use of technology in this situation was disruptive. It challenged the expectation of copyright holders, who used copyright law to challenge that disruption. It bears noting that in the court’s analysis, it assumed that copyright infringement had taken place. But since fair use is an affirmative defense, it considered whether Google had carried its burden of showing that the circumstances warranted a finding that the use was fair. In this sense, fair use serves as a backstop against copyright ownership extremism. Under these particular circumstances — where Google demonstrated incredible innovation — that backstop provided room for the innovation to take root and grow. Technological innovators should be encouraged."

Matthew Sag, Google Books held to be fair use: "Unless today’s decision is overruled by the Second Circuit or the Supreme Court — something I personally think is very unlikely –, it is now absolutely clear that technical acts of reproduction that facilitate purely non-expressive uses of copyrighted works such as books, manuscripts and webpages do not infringe United States copyright law. This means that copy-reliant technologies including plagiarism detection software, caching, search engines and data mining more generally now stand on solid legal ground in the United States. Copyright law in the majority of other nations does not provide the same kind of flexibility for new technology."

Ali Sternburg, DisCo Project, Google Books Opinion is a Win for Fair Use and Permissionless Innovation: "One key takeaway from this case is validating that companies can invest resources into creating tools that benefit the public without seeking permission from gatekeepers, if their efforts are transformative, which can involve copying and digitizing entire works."


Joe Mullin, Ars Technica, Google Books ruled legal in massive win for fair use "In the long term, the failure to settle may result in more scanning, not less. If Chin's ruling stands on appeal, a clean fair-use ruling will make it easier for competitors to start businesses or projects based on scanning books—including companies that don't have the resources, legal or otherwise, that Google has."

Timothy B. Lee, The Washington Post, Google Books ruling is a huge victory for online innovation "If the ruling is upheld on appeal, it will represent a significant triumph for Google. More important, it would expand fair use rights, benefiting many other technology companies. Many innovative media technologies involve aggregating or indexing copyrighted content. Today's ruling is the clearest statement yet that such projects fall on the right side of the fair use line."

Adam L. Penenberg, The Google Books decision is good for authors and readers "Although the two litigants were the Authors Guild and Google, and the guild vows to appeal the decision, it doesn’t represent my views. I’m glad it lost. I don’t agree that Google robs authors of income, because the vast majority of us don’t make a cent off our books in the years after they are published. If Google is willing to take on the task of scanning each book and making them searchable, then setting up a way for people to be able to buy them right there and then, it should also get a cut of the action."

Will Oremus, Slate, Google Books Ruling a Win for Fair Use ... and Rich Tech Companies: "The trick, it seems, is to steal so aggressively and profit so much that by the time the lawsuits hit, you’re rich enough to fend them off."

David Kravets, Wired, Google’s Book-Scanning Is Fair Use, Judge Rules in Landmark Copyright Case "Google’s massive book-scanning project that makes complete copies of books without an author’s permission is perfectly legal under U.S. copyright law, a federal judge ruled today, deciding an 8-year-old legal battle."

Disrupt my TV, please

At Time's Techland Blog, Ben Bajarin writes:

Why We Want TV to Be Disrupted So Badly.

I was at the Consumer Electronics Show where [Tivo and ReplayTV] debuted, and their booths were as packed as any on the show floor. Both offered such a simple premise: pause, rewind and fast forward live TV. In my opinion, these two companies paved the way for the disruption we will eventually see. Why? Because they showed us how much better our TV experience could be, and how crappy the technology was that our current television providers provided us with.

I remember having discussions with executives at both TiVo and ReplayTV during their startup years. In particular, I remember a conversation with Anthony Wood, one of the founders of ReplayTV and the now founder and CEO of Roku. I asked Anthony why the current TV providers didn't think of this first. His answer, plain and simple, was "because they are not technology companies." So profoundly true. And the fact that they are not technology companies is the simple reason so many of us in the tech industry want TV to be disrupted. We know the technology and the experience can be so much better.

No. The reason that the existing TV companies weren't thinking about innovating the TV experience is not because they are not technology companies (which they are), but simply because they don't have to. The market to deliver television and broadband is not competitive. The major cable providers don't compete with each other in the same market. Whether any particular household subscribes to television service through Comcast or Time Warner or Cablevision depends not on that household's choice to pick one cable provider over another, but by the local monopoly franchise granted to a cable provider.

Cable companies are not competing with each other to win market share at the consumer level, but are competing with each other to win market share at the municipal level. They compete for the franchise right. So there's no need to push forward with technology to make the viewing experience better -- only to be generally competitive with other cable providers in other markets so as to prevent an overwhelming groundswell of desire to change.

If the cable companies competed directly for the same customers, the quality of the product and experience would be far more customer friendly.

In most regions, consumers have few other options for internet or television service than their local cable monopoly. DSL internet service from the phone company is no longer competitive with the speeds that cable modems can offer. Satellite television service requires installing a satellite dish and service can be disrupted by bad weather.

In New York City, Verizon is supposed to provide competitive broadband/video fiber optic service to all households by June 30, 2014, but many areas of the city still lack the access to the competitive fiber optic network. NYC Public Advocate (and mayoral candidate) Bill Diblasio notes Verizon is not yet serving many areas of New York with Fios. Outside of the Fios service area, Google is wiring cities with fiber optics, and an impressively ambitious internet and TV service, but its rollout is limited to Kansas City (and then coming to Provo, UT and Austin, TX.) Otherwise, no cable company has to deal with a truly competitive service provider. Arms-length competition, where providers simply need relative parity to each other, doesn't force providers to innovate in the same way that they would with direct competition.

And since Tivo and ReplayTV launched more than a decade ago, the DVR market has become less innovative and competitive. In more than seven years since Tivo introduced its first HD device (the Series 3), the Tivo software interface still is not fully updated to HD -- a substantial amount of the user interface in the latest Premiere DVRs has been carried over directly from the decade-old Series 2 design. In fact, for sharing recorded content around the house, many cable company solutions are better than Tivo.

ReplayTV was forced out of business through litigation over its automatic commercial skipping feature. Cable providers are competing successfully with Tivo not by offering DVR that is functionally competitive with Tivo's offering, but by offering DVR service that works well enough for most viewers, is easier to install, and is a single fee with the cable bill.

If cable providers had to compete with each other for customers, the quality of the television viewing experience would be orders opt magnitude better than it is today. But fortunately, we are on the cusp of a period of rapid, transformative innovation in the television space.

Innovation is coming not because the cable television market is becoming any more competitive, but despite the best efforts of the cable companies to prevent consumer-friendly change.

Most broadband connections (largely through cable companies) are fast enough to stream HD-quality video reliably. Devices to stream internet content to an actual television are inexpensive and work reasonably well. Netflix, Amazon, iTunes, Hulu, HBO GO, ESPN, MLB, the NBA and the NHL all stream high-quality content to Roku and/or Apple TV that make it possible to replace cable television with on-demand access to a vast library of quality content and/or live sports. And although some cable providers do not authenticate their users for HBO GO access on Roku or AppleTV devices, the increasing quality and availability of streaming content is forcing cable companies to actually compete not just with one competitive cable box provider, but with the wealth of video programming on the entire internet. And so, to be competitive and keep customers spending on video programming, rather than just treating the cable company as a broadband provider, the cable companies have to offer the ability to time-shift or place-shift content, whether by video streaming to tablets, access to on-demand programming, or network-based DVRs.

The oft-maligned bundling of cable channels actually providers more value, at least in terms of the breadth of programming available, compared with ala carte internet video.

So, the problem isn't that cable providers aren't technology companies -- that assertion is preposterous considering that cable providers are also the primary provider of home broadband in the US. The reason that the television industry is ripe for disruption is because the consumer market is non-competitive.

Transparency May Be Required

Apple's Developer Site was hacked. All Things D reports; Apple Developer Center Was Hacked; Site Remains Down While Company Overhauls Security

In their notification, Apple notes that they are letting developers know about this attack "in the spirit of transparency."

Without knowing more information about what information was obtained through the data breach incident, there are a number of scenarios where state laws would require that Apple notify its users that their personal information may have been accessed by an unauthorized third party.

In the US, each of the fifty states (as well as DC and Puerto Rico) has its own data breach notification law. Compliance is based not on the state in which an entity that stores personal information actually resides or stores that information, but, because we consider privacy to be a personal right, it is based on the home state of the person whose data is being stored.

Most states define personal information to include:

An individual’s first name or first initial and last name plus one or more of the following data elements: (i) Social Security number, (ii) driver’s license number or state- issued ID card number, (iii) account number, credit card number or debit card number combined with any security code, access code, PIN or password needed to access an account and generally applies to computerized data that includes personal information. Personal Information shall not include publicly available information that is lawfully made available to the general public from federal, state or local government records, or widely distributed media. In addition, Personal Information shall not include publicly available information that is lawfully made available to the general public from federal, state, or local government records.

But, some states have a broader definition of personal information than this. Some states require that the state is notified in case of a data breach that affects a certain number of residents. Some states offer a safe harbor from notification if personal information is encrypted and not access in an unencrypted format.

BakerHostetler has a straightforward and comprehensive summaries of data breach notification laws Data Breach Charts. With each of the states having a different requirement, Apple's notice to its developers wasn't solely in the spirit of transparency, but also in the spirit of legal compliance.

A security researcher claims to have accessed secure Apple data after filing a bug report to encourage Apple to fix the hole that he found. iMore reports Security researcher claims to have reported bugs shortly before Apple took down its developer portal. Whether or not the data was leaked by a white hat hacker instead of a black hat hacker, that doesn't affect the fact that personal data was delivered to a third party, which requires the company storing the personal data to report it to the individuals, and depending on the number of people affected, also to certain states.

Last week, the House Energy & Commerce Committee Subcommittee on Commerce, Manufacturing, and Trade held hearings on whether a federal data breach notification statute is necessary. Subcommittee Explores State of Data Breaches in United States

Earlier this month, the California Attorney General released her report on data breaches affecting California residents in 2012, when 2.5 million Californians had personal information put at risk through an electronic data breach, but more than half of those citizens' would have been protected if the companies storing their personal data better encrypted the data.

API Madness

This week, the inter webs went all aflutter when Michael Sippey of Twitter announced the Changes coming in Version 1.1 of the Twitter API.

In general, Twitter is seeking to more tightly control the user experience and discourage active development of third-party client applications. Yet it seems like so much of the success of Twitter comes from the origin in lack of control. It was simple and the users built most of the conventions that Twitter relies on.

For a service like Twitter that is so simple and basic, will attempting to make it into something different end up killing it off? Will App.net or something else be the Facebook to Twitter's Friendster or Myspace?

Even though much of the use of Twitter is on its own website, it seems like the most active users, and the reason that the service became successful comes form client software, all of which came from third-parties. Twitter's official clients were originally written independently by Loren Brichter as Tweetie and then acquired (and then apparently left for dead.)

As Twitter is trying to build itself into a business, it's also changing to dictate how the service is used, rather than building on the conventions that have evolved.

Web communities tend to take on their own unique and individual character and personality. Some, like Metafilter or Reddit are largely supportive and collaborative. Others, like 4chan or Funnyjunk take on personalities that are more anarchic or antagonistic. The communities that tend to have stronger community values are the ones who tend to have stronger moderation enforcing community norms, whether that is individual moderators like at Metafilter or the community norms that Twitter's users established. In particular, the @username convention and the #hashtag convention both came from use, not from Twitter.

Image uploads were supported by third-party clients long before Twitter launched it's own image hosting service.

And while if hoping to extend the Twitter service and sell it to advertisers, it makes more sense for it to be a website rather than a service that works across different software. But it seems more likely to alienate the user and developer ecosystem that Twitter enables. And because Twitter as it is today provides tremendous value to the users and developers, trying to recapture some of the value from the users and developers, rather than sell those users' attention to advertisers seems like the better way to capture value, because it will encourage the users to use the site more.

By carefully and narrowly designating what the Twitter service is, rather than listening to what the most active users want, is Twitter going to be driving its most active users and third-party developers away from its service?

The most-active Twitter users seems to interact with the service mainly through Tweetdeck*, Tweetbot, or the rapidly stagnating Twitter apps rather than the website.

*Yes, Twitter own Tweetdeck, but it seems to be a vastly different experience than the Twitter website.

Developer Rules of the Road,

Terms of Service and Display Guidelines, which will become display rules.


Marco.org, Interpreting some of Twitter’s API changes: "I sure as hell wouldn’t build a business on Twitter, and I don’t think I’ll even build any nontrivial features on it anymore."


Doubling Down

Here's an example of how overly aggressive tactics blow up in one's face. And then taking that explosion and doubling down aggressively.

Matthew Inman writes and publishes The Oatmeal, one of the funniest comics on the web. Users at Funnyjunk.com reposted many of Inman's comics. So Inman asked his readers how he should respond and then had some dialogue with the proprietor and denizens of Funnyjunk.

Then last week, Inman received a demand letter from Funnyjunk: FunnyJunk is threatening to file a federal lawsuit against me unless I pay $20,000 in damages. Alleging that The Oatmeal violated made false accusations of willful copyright infringement and infringed on Funnyjunk's rights under the Lanham Act, Funnyjunk's attorney demanded $20,000.

Inman's attorney replied, as did Inman, who used IndieGoGo to ask his readers to raise the $20,000 and donate it to the National Wildlife Foundation and the American Cancer Society (as well as send a crude cartoon to the owners of Funnyjunk.)

After Inman raised more than $100,000, Funnyjunk's attorney Charles Carreon went full Rakofsky to personally sue not only Inman, but also IndieGoGo, the National Wildlife Foundation and the American Cancer Society. The Oatmeal v. FunnyJunk, Part IV: Charles Carreon Sues Everybody: "On Friday, June 15, 2012, attorney Charles Carreon passed from mundane short-term internet notoriety into a sort of legal cartoon-supervillainy."

Wow.

Testing

This is a test entry. Feel free to not get excited.

We've been here before, but now the Supreme Court is again hearing arguments on the FCC's indecency standards, in particular the First Amendment aspects and the rule on fleeting expletives and broadcast.

Transcript: FCC v. Fox (Oral Arguments, Jan. 10, 2012)

Lyle Denniston, SCOTUSblog Many options on TV rules, "With one Justice testing the ultimate constitutionality of government controls on broadcast TV, another trolling for an exceedingly narrow approach, two others suggesting that technology may be overtaking the constitutional dispute, one signing himself up for rigorous morality policing, and one whose vote may really be crucial staying entirely silent, the Supreme Court on Tuesday wandered widely in its new exploration of the state of profanity and nudity on television and radio. The lively argument in the latest round of that controversy even had a lawyer pointing out portrayals of nudity in the courtroom decorations above the Justices' heads."

Adam Liptak, The New York Times, TV Decency Is a Puzzler for Justices, "In a rollicking Supreme Court argument that was equal parts cultural criticism and First Amendment doctrine, the justices on Tuesday considered whether the government still had good reason to regulate cursing and nudity on broadcast television. The legal bottom line was not easy to discern, though there seemed to be little sentiment for a sweeping overhaul of the current system, which subjects broadcasters to fines for showing vulgar programming that is constitutionally protected when presented on cable television or the Internet."

Nina Totenberg, NPR: High Court Hears Arguments In FCC Indecency Case
"Inside the Supreme Court on Tuesday, Solicitor General Donald Verrilli, representing the Obama administration, said that Congress intended broadcast licenses to come with an obligation to meet certain decency standards -- standards that would provide a safe haven for family viewing."

Ruthann Robson, Constitutional Law Prof Blog FCC v. Fox Argument: On Naked Buttocks, Regulated Media, and the First Amendment "Both Fox (represented by Carter G Phillips) focused on the 'fleeting expletive' sanction based on Cher's statement at an award ceremony and ABC (represented by Seth Waxman) focused on a nudity sanction based on an episode of NYPD Blue, argued against the FCC (represented by the Solicitor General Verrilli)."

Compare/Contrast

On Thursday morning, the House Judiciary Committee will have a full committee markup of the latest version of H.R. 3261 the Stop Online Piracy Act. Here's some initial analysis from Mike Masnick at Techdirt Lamar Smith Proposes New Version Of SOPA, With Just A Few Changes.

Today, comedian Louis C.K. released his latest standup special, filmed earlier this year at the Beacon Theater in New York, NY as a simple $5 direct download. No DRM, payment simply through Paypal. He's aware of the risk of piracy and believes that simply offering a product that's inexpensive and simple enough that it's a better customer experience.

I hosted a podcast discussion that I'll be posting later this week -- one of the topics we discussed was the fact that a torrent download offers the best viewing experience for any way of watching television programming. (None of the glitches of streaming, none of the commercials of broadcast and none of the interminably long menus of DVDs and Blu-Rays.) Probably the only other one that compares is iTunes (which has the disadvantage of being the most expensive way to watch lots of television.)

Is the best way to compete with casual infringements simply to offer the best experience?

The New Digital Divide

Susan Crawford in the New York Times on The New Digital Divide:

"While we still talk about “the” Internet, we increasingly have two separate access marketplaces: high-speed wired and second-class wireless. High-speed access is a superhighway for those who can afford it, while racial minorities and poorer and rural Americans must make do with a bike path…

"Over the last 10 years, we have deregulated high-speed Internet access in the hope that competition among providers would protect consumers. The result? We now have neither a functioning competitive market for high-speed wired Internet access nor government oversight."

The market for dial-up internet access was competitive. The market for broadband access isn't. And without competition, incumbents can simply charge a prevailing rate. There's no incentive for competition, because it's not like a homeowner can simply switch from Time Warner to Comcast without moving to a new house that is in a Comcast service area. Competition spurs innovation and reduces rent-taking. A market needs either tight regulation or stiff competition. Home broadband providers are shielded form both.

Market Failure and Piracy

The historical popularity of file sharing owes as much to access as to price. Back around the turn of the century when musical lovers were clamoring for the ability to buy legal downloads, but didn't have a way to do that easier than piracy until Apple opened the iTunes store?

Dan Messer, Not All Bits, Warner Bros. Locking Down Harry Potter and Screwing Themselves "Hey, they tried to give someone, anyone, some money for this product and they were denied a legal avenue to do so at every turn. So, right or wrong, ethical or not, they acted upon the wantingness, the desire, created by Disney, and then removed Disney from the equation. Then they went out and gave that money to someone who would sell them some popcorn to snack on while watching the movie."

All else equal, music, TV and film buyers don't mind spending money on media when they know that it will be convenient and high quality. The hassles and risks of file sharing make sense when the paid alternative is both more difficult and more expensive or simply does not exist at all.

Termination Station

Larry Rohter, The New York Times, Record Industry Braces for Artists’ Battles Over Song Rights: "Since their release in 1978, hit albums like Bruce Springsteen’s “Darkness on the Edge of Town,” Billy Joel’s “52nd Street,” the Doobie Brothers’ “Minute by Minute,” Kenny Rogers’s “Gambler” and Funkadelic’s “One Nation Under a Groove” have generated tens of millions of dollars for record companies. But thanks to a little-noted provision in United States copyright law, those artists — and thousands more — now have the right to reclaim ownership of their recordings, potentially leaving the labels out in the cold."

Here's the relevant section of the Copyright Act:

§ 203. Termination of transfers and licenses granted by the author

(a) Conditions for Termination. — In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions:
    (1) In the case of a grant executed by one author, termination of the grant may be effected by that author or, if the author is dead, by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author's termination interest. In the case of a grant executed by two or more authors of a joint work, termination of the grant may be effected by a majority of the authors who executed it; if any of such authors is dead, the termination interest of any such author may be exercised as a unit by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author's interest.

    (2) Where an author is dead, his or her termination interest is owned, and may be exercised, as follows:

      (A) The widow or widower owns the author's entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author's interest.

      (B) The author's surviving children, and the surviving children of any dead child of the author, own the author's entire termination interest unless there is a widow or widower, in which case the ownership of one-half of the author's interest is divided among them.

      (C) The rights of the author's children and grandchildren are in all cases divided among them and exercised on a per stirpes basis according to the number of such author's children represented; the share of the children of a dead child in a termination interest can be exercised only by the action of a majority of them.

      (D) In the event that the author's widow or widower, children, and grandchildren are not living, the author's executor, administrator, personal representative, or trustee shall own the author's entire termination interest.

    (3) Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier.

    (4) The termination shall be effected by serving an advance notice in writing, signed by the number and proportion of owners of termination interests required under clauses (1) and (2) of this subsection, or by their duly authorized agents, upon the grantee or the grantee's successor in title.

      (A) The notice shall state the effective date of the termination, which shall fall within the five-year period specified by clause (3) of this subsection, and the notice shall be served not less than two or more than ten years before that date. A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect.

      (B) The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation.

    (5) Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.

(b) Effect of Termination. — Upon the effective date of termination, all rights under this title that were covered by the terminated grants revert to the author, authors, and other persons owning termination interests under clauses (1) and (2) of subsection (a), including those owners who did not join in signing the notice of termination under clause (4) of subsection (a), but with the following limitations:

    (1) A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant.

    (2) The future rights that will revert upon termination of the grant become vested on the date the notice of termination has been served as provided by clause (4) of subsection (a). The rights vest in the author, authors, and other persons named in, and in the proportionate shares provided by, clauses (1) and (2) of subsection (a).

    (3) Subject to the provisions of clause (4) of this subsection, a further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is signed by the same number and proportion of the owners, in whom the right has vested under clause (2) of this subsection, as are required to terminate the grant under clauses (1) and (2) of subsection (a). Such further grant or agreement is effective with respect to all of the persons in whom the right it covers has vested under clause (2) of this subsection, including those who did not join in signing it. If any person dies after rights under a terminated grant have vested in him or her, that person's legal representatives, legatees, or heirs at law represent him or her for purposes of this clause.

    (4) A further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is made after the effective date of the termination. As an exception, however, an agreement for such a further grant may be made between the persons provided by clause (3) of this subsection and the original grantee or such grantee's successor in title, after the notice of termination has been served as provided by clause (4) of subsection (a).

    (5) Termination of a grant under this section affects only those rights covered by the grants that arise under this title, and in no way affects rights arising under any other Federal, State, or foreign laws.

    (6) Unless and until termination is effected under this section, the grant, if it does not provide otherwise, continues in effect for the term of copyright provided by this title.

Were these in fact works for hire? Did the labels ever treat their artists like employees? If the artists are independent contractors, besides the named artists, who of the producers, executives and session musicians count as co-authors of the work?

This could prove to be very interesting… or not.

Update (8/17). The Times today ran a story about a copyright termination lawsuit on the front page of the arts section: A Village Person Tests the Copyright Law "Victor Willis, the original lead singer of the group, filed papers this year to regain control in 2013 over his share of “Y.M.C.A.,” whose lyrics he wrote, under a copyright provision that returns ownership of creative works to recording artists and songwriters after 35 years. His claim to “Y.M.C.A.” and 32 other Village People compositions, however, is being contested by two companies that administer publishing rights to the songs."

The complaint: Scorpio Music v Willis

This year, cyclists in New York City are contending with increased scrutiny from police officers, who are attempting to crackdown on any and all infractions of code. Bike Ticketing In New York, Widespread, On the Rise

Eben Weiss, Bicycling Magazine, In Crackdown on Cyclists, History Repeats Itself: "Nevertheless, this perception in New York City of bicycles as dangerous and the people who ride them as bullies has not changed. In an unprecedented investment in cycling infrastructure that gave even Portland an inferiority complex, New York City has added hundreds of miles of bicycle lanes in the past few years. As a result, the number of bicycle commuters has doubled since 2005. So, it seems, has resentment, and people have been blaming bike lanes for everything from harming local retail businesses (uh, it couldn’t have anything to do with that little recession we’re having, could it?) to somehow making the streets more dangerous for children and senior citizens, who would presumably prefer to be mowed down by cars instead of bicycles."

Filmmaker Casey Neistat was ticketed for riding outside of a bicycle lane, and made this amusing video to show how often bike lanes are obstructed:

Also this week, this video highlighting the interactions between cyclists, pedestrians and cars:

3-Way Street from ronconcocacola on Vimeo.



Cyclists in NYC have a reputation for riding aggressively, weaving in and out of traffic, ignoring red lights and riding dangerously and erratically.

In large part, cyclists perpetuate these stereotypes because neither the city's infrastructure nor law enforcement allow cyclists to ride safely while also compling with the law. A bicycle rider is much smaller and slower than the cars, trucks and buses with which he would share the roads, and much faster than – and thus dangerous to – the pedestrians who use the sidewalks and crosswalks. Absent a complete network of dedicated, physically separated, safe bicycle lanes, cyclists need to ride more aggressively in order to attempt to feel safe riding among the much larger and faster vehicular traffic. Riders who started cycling in the city prior to the Sadik-Kahn bike lane bonanza were accustomed to riding aggressively without much regard to the letter of the law, because the infrastructure did not create a respected space for cyclists to behave prudently and responsibly as cyclists. Cyclists riding in traffic lanes were (and still are) treated by motorists as interlopers into their dedicated space. Cyclists riding on the sidewalk in violation of the law were doing so because it could be safer than riding alongside traffic.

In at least two ways, copyright in the digital age also reflects a similar dynamic, with remixers and P2P file sharers acting without strict adherence to the law in order to route around the market and copyright regime knowing how to meet their needs.

During the dawn of the era of digital music, users turned to P2P file sharing when they found it impossible to legitimately buy digital downloads. Before the launch of the iTunes Music Store, 8 years ago, there was no systemic legal way to buy individual songs for a reasonable price. Buyers who were willing to pay $0.99 for a hit single, but not $12 for the album including that single might be priced out of buying the full album. So instead, they would turn to P2P in order to get the one track they wanted.

At the beginning of the P2P era, downloading MP3s over a high-speed university network or internet connection could be faster than ripping the legitimately purchased CD to MP3 on a standard computer of the time. And so many of the early P2P music pirates infringed on copyright law not as a show of protest against an unjust law, but out of a market's failure to offer a product – downloadable digital music – at any price. The original simply offered the best music acquisition experience available at the time.

For a time in the early aughts, the major labels were not only not offering the digital music product that the market sought, but seemed vigorously opposed to offering any service that was both legal and offered any level of convenience to customers. Because the labels were so worried about piracy, they were hesitant to offer convenient digital downloads at reasonable prices without ensuring that those files were locked down with DRM. It seemed like the perception on the label side was the digital downloads = piracy. Only after Apple's iTunes service offered enough DRM to satisfy the labels, but worked seamlessly enough to entice iPod users did we start to see today's market gradually emerge.

In the last 8 years, a vibrant market for digital music and video content emerged to provide a wide selection from a number of retailers in both downloadable sales (iTunes, Amazon) and streaming rentals (Rdio, Rhapsody, MOG, Netflix, Hulu). At the same time, copyright owners went to court to defend their rights against infringers. And sharing music and video illicitly over P2P has lost most of the noble reasons for its use. The vast majority of users on P2P now are doing so out of a conscious preference of piracy over legitimate access. In some cases, P2P helps fans access material when it is first released, rather than waiting for the release window to catch up to their home country. In other cases, it is because piracy provides a better user experience than the legitimate access. But in others, it's simply to avoid having to pay.

The cyclists who started riding aggressively and flaunting rules out of safety will happily follow reasonable laws once the infrastructure is in place to allow them to ride safely, quickly and conveniently throughout the entire city. There are other cyclists however, who choose to flaunt the law, ride aggressively and recklessly, salmoning against traffic as a statement of some kind. They may see themselves as engaging in "bike culture" because they are adopting the styles and norms of aggressive riders for the sake of being aggressive and edgy, rather than out of necessity.

Before the advent of popular legitimate online music services, I worried that the lack of the services would turn young music listeners towards a life of expecting all downloads for free, and not understanding that recording artists might want to make a living from their work. (This attitude persists, but hopefully is not the dominant one amongst today's youth.)

Today, New York City and its urban cyclists face a similar crossroads. Will the crackdown on traffic code violations come along with continuing progress towards a complete, safe, viable cycling infrastructure? Will cyclists have the space and respect that we need to be one of three coequal classes of users of the public space along with pedestrians and motorists? If so, then I would expect reckless cycling to decrease at the same rate that infrastructure makes compliance with all regulations safer and more efficient than recklessness.

If, however, the vociferous bike lane opponents get their wishes and start to rip out the nascent bike infrastructure, this will become a fruitless crackdown that might only serve to delegitimize bicycling as a method of transportation in New York City. (Fortunately for cycling advocates, this week has seemed to establish that Anthony Weiner is not likely to succeed Michael Bloomberg as the next mayor of New York.)

Cyclists and policymakers should learn from the music industry: the violations of law occur because compliance is largely impossible. Legal opportunities to purchase usable digital music downloads have likely had a far larger impact on P2P usage than copyright infringement suits filed against file sharers. A cycling infrastructure where bike lanes aren't systemically blocked by parking, standing and turning vehicles and where lanes don't end abruptly to force cyclists into traffic will be more effective at encouraging safe, respectful cycling than a crackdown. Preventing encroachments and respecting the cyclists' space to be able to ride safely is the only way to encourage cyclists to respect other users of the city's public space.

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While blog posts here may discuss topics involving legal issues, the discussion is for informational purposes only. Nothing on this site is intended to be legal advice and so should not be used as a substitute for the advice of competent counsel.