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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More on Coulee Catholic Schools v. LIRC

discriminationAs Professor Esenberg has just posted about, earlier this week, the Wisconsin Supreme Court handed down a very important decision, Coulee Catholic Schools v. LIRC (2009 WI 88). Although some describe the holding as “a dramatic change” in Wisconsin employment law, I think the case is more important for its constitutional discussion. On the actual question presented, I think the Court’s holding was straightforward, correct, and not very dramatic.

In Coulee Catholic Schools, the Court was asked whether a first grade teacher in a Catholic school was subject to the “ministerial exception,” meaning that the school’s religious freedom to select its own ministers and leaders barred her age discrimination claim. Half the courts in the country that have considered this question concluded that a religious school teacher is engaged in sufficient ministry to be included, while half have said that such a teacher is not. The Wisconsin Supreme Court decided that the religious school teacher in this case did engage in and lead sufficient religious activities to fall within the exception.

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Coulee Catholic: Of Loopholes and Legislating

Wednesday, in a case called Coulee Catholic Schools v. Labor and Industry Review Commission, the Wisconsin Supreme Court held that the “ministerial exception” to state laws prohibiting employment discrimination applied to a teacher in a Catholic grade school. As a result, the teacher’s claim against the school for age discrimination must be dismissed.

There a few points worth making. First, it is inaccurate and misleading to call the decision, which was written by Justice Michael Gableman and joined by Justices Prosser, Roggensack and Ziegler, “legislating from the bench.” Although this exception is not spelled out in the applicable statute, it is fairly implied from the free exercise clause of the First Amendment and the freedom of conscience clause in Article I, sec. 18 of the Wisconsin Constitution. In fact, courts everywhere recognize it and it is consistent with a general reluctance on the part of courts to examine the internal decision making of religious organizations on matters that implicate the organization’s religious mission and precepts. To determine whether the plaintiff in this case was terminated due to her age, an administrative agency or court would have to examine the school’s decision in light of its religious mission and that would lead to state evaluation of religious judgments.

Second, it is also unfair to say that the Court found a “loophole,” although I can see that there is some poetic justice in the charge for critics of Gableman campaign ads that used that term in connection with certain of the Court’s criminal law decisions. 

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