Supreme Court Says It Won't Hear Authors Guild Appeal Over Google Books Ruling

from the nice-to-see dept

Last fall, the 2nd Circuit appeals court gave a clear and convincing win to Google in the long-running Authors Guild case against Google's book scanning program. And, really, the decision was a massive win for the public, in that it was a strong defense of fair use (even in commercial settings). But, of course, the still clueless Authors Guild -- which doesn't seem to actually represent the interests of most authors (many of whom have found Google Books to be a profoundly useful tool) -- decided to ask the Supreme Court to overturn the case.

That request has now been rejected. As is standard with the Supreme Court, no reason is given: If you can't read that, it just says that the petition for cert is denied and that Justice Kagan "took no part in the consideration." I'm not exactly sure why Kagan abstained -- I thought perhaps she had weighed in on earlier rounds of the case as Solicitor General, but can't find anything.

Either way, this is a very good thing. The excellent 2nd Circuit ruling stands. And while it technically only applies to cases in that circuit, it will most likely influence cases elsewhere. Also, the Supreme Court has a long, and unfortunate, history of coming up with nutty decisions in big copyright cases.

Filed Under: 2nd circuit, book scanning, copyright, elena kagan, fair use, supreme court
Companies: authors guild, google

DailyDirt: Fact-Checking Some Christmas Traditions

from the urls-we-dig-up dept

We've noticed some Christmas dinner traditions that might sound a little strange. But there are some traditions around this time of year that are curious enough to warrant some quick fact-checking. Whatever the case may be, enjoy whatever traditions you follow!

• Is Chinese food really the most popular restaurant choice for Christmas? A quick look at some Google search trends shows that searches for Chinese food spike around the Christmas season. And apparently, a growing number of kosher Chinese restaurants serve 'Jewish Christmas' meals without pork or shellfish. [url]
• The origin of candy canes isn't clear, but they might date back to the 17th century. Candy canes may have started out as straight sticks, and there's little evidence that they're in a J-shape for Jesus. There is a patented candy cane machine that improved the process for making the J-bend without breaking the candy, filed back in 1957. So the "modern" candy cane can be traced back to a Catholic inventor -- Father Gregory Keller. [url]
• During Justice Elena Kagan's 2010 confirmation hearing for the Supreme Court, Kagan testified that she was probably at a Chinese restaurant for Christmas. While other kinds of restaurants (besides Chinese) are actually open on Christmas, it seems that Chinese food has evolved to cater to American tastes. [url]

After you've finished checking out those links, take 10% off any $50+ order from our Daily Deals using the promo code DAILYDIRT.

Filed Under: candy cane, christmas, dinner, elena kagan, food, gregory keller, keller machine, kosher, traditions

Supreme Court Tells Conan Doyle Estate To Take A Hike: Consider Sherlock Holmes In The Public Domain

from the well-that-didn't-take-long... dept

Well that did not take long at all. We just wrote about the Sir Arthur Conan Doyle Estate begging the Supreme Court to issue a stay on the appeals court ruling that determined (easily) that Sherlock Holmes was in the public domain. The Conan Doyle Estate wanted the Supreme Court to issue a stay on the decision while it prepared an appeal. That stay would effectively block the publication of the book that Leslie Klinger was planning -- which was at the center of the lawsuit.

Justice Elena Kagan, who received the request for the stay from the estate has already rejected it with no comment or explanation. She did so without consulting with her fellow justices or without asking (or waiting) for a filing from Klinger. She has every right to just make this decision, but it certainly suggests that the Supreme Court (well, at least Kagan) finds the appeals court ruling to be quite persuasive, and is not at all convinced the estate has a legitimate argument. I'm sure that the estate will still ask the Supreme Court to rehear the case, but at least this initial response suggests that the Supreme Court is not interested. Chalk up another (small) victory for the public domain.

Filed Under: copyright, elena kagan, leslie klinger, public domain, sherlock holmes, supreme court
Companies: conan doyle estate

Conan Doyle Estate Asks Supreme Court To Step In And Block Sherlock Holmes From Being Public Domain'd

from the a-curious-case dept

In February of last year, we wrote about author/lawyer Leslie Klinger suing the Conan Doyle Estate for demanding a license for his latest book about Sherlock Holmes. An earlier book that Klinger had published about Holmes had resulted in his publisher paying the estate a license, but Klinger felt he didn't need such a license for the latest book. Nearly all of Sir Arthur Conan Doyle's Sherlock Holmes works are in the public domain (published before 1923), but there is one remaining book of a bunch of stories called The Case-Book of Sherlock Holmes which was published after 1923 and is still in copyright. Klinger insists his own latest book would only pull from the public domain works, but the Doyle Estate made the amazing argument that it could effectively keep the characters of Holmes and Watson locked up forever by claiming that each new work added another layer to the character in an ongoing fashion, and the clock would start anew each time.

This reasoning got rejected quickly by the district court, and last month an appeals court ruled (strongly) against the estate, making it quite clear that the basic characters are very much in the public domain. As the court noted, the estate doesn't get to make up copyright law the way it would like:

We cannot find any basis in statute or case law for extending a copyright beyond its expiration. When a story falls into the public domain, story elements—including characters covered by the expired copyright—become fair game for follow-on authors...

The court seems completely unpersuaded by the Conan Doyle Estate's ridiculous fear that (*gasp*) if Holmes goes into the public domain, some people might create different versions of him. That's actually kind of the point of the public domain. That's what's supposed to happen.

Well, wouldn't you know it? The Conan Doyle Estate is not giving up, and appears poised to take this to the Supreme Court. It has started out by asking the Supreme Court to stay the appeals court ruling (basically blocking the publication of the book) until the estate can ask the Supreme Court to hear the full case. The estate's argument is about as silly as you'd expect. Basically, it insists that because Klinger has not handed over his entire work, it can't be declared to be non-infringing, and thus his publication should be blocked. The Estate is actually flipping the equation (without admitting it). It's correct that to show infringement, you first would need to examine the work, but here it's actually demanding that a negative be proven. It's demanding that Klinger present his final work to prove that it doesn't infringe. That's silly. If Klinger's final work does infringe, then the estate can bring it to court. The question Klinger's original lawsuit addressed was more straightforward: so long as he relies on the public domain works as his source material, there shouldn't be anything that infringes. And two courts have agreed with him.

Hopefully the Supreme Court rejects this, which would also likely mean that it will reject the eventual appeal from the estate as well. However, if Justice Kagan (who is handling these kinds of requests) decides to grant the stay, then we could be in for another round and another chance for the Supreme Court to dig in on copyright issues. Given its past record -- especially on the public domain -- this might be a dangerous thing.

Filed Under: copyright, elena kagan, leslie klinger, public domain, sherlock holmes, sir arthur conan doyle, surpreme court
Companies: conan doyle estate

Obama Nominates Former Top RIAA Lawyer To Be Solicitor General

from the well-that's-just-great dept

This has actually been rumored for quite some time, but now it's official. President Obama has nominated one of the RIAA's top litigators, Donald Verrilli to replace Elena Kagan as Solicitor General. Verilli, of course, was instrumental in leading the RIAA's case against Grokster. He was apparently also involved in Viacom's fight against YouTube (according to Wired -- I didn't know that previously). In other words, he's been the copyright maximalists' go to guy in court for extending and twisting copyright laws in anti-competitive and free speech-destroying ways. So, it seems we should expect a pretty strong defense of the government seizing domain names in violation of the First Amendment.

Of course, I find it kind of amusing that Darrell Issa and anti-Google lobbying group Consumer Watchdog are still claiming that the administration is in Google's pocket. As far as I know, many of the former top Googlers who did go to the White House have since left (some in frustration), while Obama has been hiring all sorts of folks who are about as anti-Google as can be into top roles. Beyond Verilli, Obama has also hired Bill Daley, who had been president of SBC (now AT&T), which has gone out of its way for years to try to take down Google. Where exactly is Google's "power" in the administration these days?

Filed Under: donald verrilli, elena kagan, president obama
Companies: riaa

Princeton Demands Website Remove Elena Kagan's Thesis; Claiming Copyright Infringement

from the fair-use? dept

Obviously, there's been lots of talk about Supreme Court nominee Elena Kagan in numerous areas. There have been various reports concerning Kagan's supposed views on copyright, but those seem pretty blown out of proportion from what I've seen and in talking to folks who know Kagan. She was a big supporter of the Berkman Center at Harvard, but that was part of her job. Other than her recommendation in the Cablevision case, there doesn't seem to be much to go on. In fact, I'm considerably more concerned with the idea that one of the leading contenders for Kagan's current job of Solicitor General is one of the entertainment industry's favorite legal attack dogs who led the industry's case in Grokster and was a major player in the Jammie Thomas trial before being appointed to the Justice Department (where he didn't last very long before moving over to the White House as associate White House counsel). Still, if Kagan really is a big supporter of fair use, you have to wonder what she thinks of the following situation.

With everyone digging deeper and deeper to find out more about Kagan, the website Red State apparently dug up her undergraduate thesis and posted it to their website... leading Princeton to demand that the thesis be taken down -- not, of course, for political reasons, but copyright ones. The University is selling copies of her thesis, and apparently the commercial value just shot up:

It has been brought to my attention that you have posted Elena Kagan's senior thesis online.... Copies provided by the Princeton University Archives are governed by U.S. Copyright Law and are for private individual use only. Any electronic distribution is prohibited, as noted on the first page of the copy that is on your website. Therefore I request that you remove it immediately before further action is taken.

Of course, ordering that the document be pulled down pretty much guarantees that it will get spread more widely -- and there's definitely a journalistic reporting defense for posting the document (though, I'm not particularly convinced that anything anyone wrote in college has much meaning once they've spent a few decades outside of college). And, of course, in trying to get the document taken down, it's just going to lead conspiracy-minded folks to think there's more to the document than there is (in actuality, it's a rather bland historical analysis, but you wouldn't know that from what some sites are claiming about it). But from a journalistic standpoint, it seems you could make a decent argument for fair use in distributing the document. In fact, publications like Newsweek are already sharing parts of the thesis as well (mostly to debunk the hysteria around it). It's difficult to see what Princeton gained in issuing the takedown notice, other than to rile up people.

Filed Under: copyright, elena kagan, princeton, thesis

Obama Administration Sides With Technology Over Hollywood In Cablevision Case

from the finally! dept

It's no secret that those of us who have been in favor of pushing back against the worst abuses of intellectual property law have been disappointed by the Obama administration -- which brought in a number of entertainment industry lawyers and seemed to side with IP holders over the public at almost every turn... until now. We've talked about the importance of the lawsuit over Cablevision's remote DVR system, and whether it represented copyright infringement. The appeals court had ruled that just because the DVR was hosted at Cablevision's datacenter instead of in a house it wasn't infringement. This makes perfect sense. Yet the entertainment industry has been claiming that allowing Cablevision to host DVRs on its own premise is infringement and Cablevision has to pay extra for the right to offer the same exact TiVo-type service that anyone can use in their home. Earlier this year, the Supreme Court asked the new Solicitor General to weigh in. At the time, we noted that this could be a good thing, since one of the last things Solicitor General Elena Kagan did before leaving Harvard to join the administration was recruit Larry Lessig to Harvard.

And, indeed, it appears that Kagan has not succumbed to entertainment industry's tortured logic on this issue and has recommended that the Supreme Court not take the case, saying that the appeals court ruling reasonably resolved the issues in the case. Either way, it's nice to see that the administration hasn't been totally taken over by those who believe in twisting copyright law to protect obsolete business models.

Filed Under: cloud computing, copyright, elena kagan, obama administration, remote dvr
Companies: cablevision