Google Library Project Preliminary Settlement – Being Scrutinized Worldwide

googlrWe are used to the Recording Industry Association of America aggressively litigating against individuals and organizations, trying to impede copyright infringements of musical works through peer-to-peer networks and/or other file-sharing technologies.  The original Napster was converted to a pay-based music subscription service years ago and, more recently, Kazaa did the same.
 
In light of the heated litigation in the music distribution industry, it was not surprising, by analogy, that Google quickly caught the attention of the Author’s Guild (AG) and Association of American Publishers (AAP) when Google started a massive book-scanning initiative and made the content electronically available over the Web.  This project, known as the Google Library Project (sometimes referred to as “Google Book Search” and formerly known as “Google Print”) led to numerous lawsuits soon after its inception.  After fighting for a few of years over copyright issues, Google reached a preliminary settlement with the AG and AAP for $125 million and also by establishing a royalty registry.  
 
The preliminary settlement has already caught the attention of numerous critics, including the U.S. Department of Justice (DOJ).  The DOJ was inundated with public comments, questioning whether the settlement would give Google monopolistic rights to distribute, for example, numerous out-of-print books.  The DOJ has not formally opposed the settlement, but has started investigating what effects the settlement may have on competition. 
 
A few days ago, public scrutiny of the terms of the Google Library Project preliminary settlement was extended beyond the U.S. borders.  The European Commission (EC) is proactively requesting comments from European Union (EU) authors and publishers, arranging a meeting between EC representatives and EU authors and publishers early in the fall.  During that meeting, the EC hopes to discuss the terms of the preliminary settlement, presumably to evaluate how an analogous settlement in the EU might impact copyrights, as well as antitrust considerations.
 
Although Google’s Library Project continues to grow, there are certainly a lot of remaining issues to resolve.
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IP Colloquium Tackles Fairey v. AP

Intellectual Property Colloquium Doug Lichtman at UCLA is producing a fantastic series of monthly podcasts on IP issues, called the Intellectual Property Colloquium. This month’s episode is on fair use in the Shepard Fairey case, and features a terrific line-up of guests: Mark Lemley, attorney for Fairey; Dale Cendali, attorney for AP; and Ken Richieri, General Counsel at the New York Times, who adds the view of someone on both sides of the issue. Doug asks some pretty good questions, particularly about the notoriously circular fourth fair use factor (the effect on the potential market). It’s worth a listen, and you can also use it for CLE credit in six states, “and any state that accepts any of those through reciprocity,” which I believe includes Wisconsin (do not rely on me for this).

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IP Philanthropy Can Be Ecologically Responsible

img_logo1Since early 2008, there has been an interesting project in IP philanthropy.  At that time, the World Business Council for Sustainable Development (WBCSD) established an initiative called the Eco-Patent Commons.  Member companies of the Eco-Patent Commons are able to “pledge” patents from their portfolios which cover technologies that provide environmental benefits.  Pledging patents into the Eco-Patent Commons is not a transfer of title, but instead is a promise by the patent owner to not enforce the pledged patents against users of the technology (while maintaining rights to defensively terminate the pledge under certain circumstances).

Based on the economic conditions of the last couple of years, I am amazed that companies are willing to allow others to freely practice inventions which would otherwise generate licensing revenues.  However, some companies have done exactly that.

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