The Association of American Publishers (AAP) and Google announced earlier today that the parties had reached a settlement agreement in the ongoing copyright infringement lawsuit that pits content creators against Google. This copyright dispute started between Google and various content creators as the result of Google’s efforts to digitize books for distribution on the Internet without first obtaining copyright permission. According to AAP and Google, the settlement will provide access to AAP in-copyright books and journals digitized by Google for its Google Library Project. The dismissal of the lawsuit will end seven years of litigation, at least between these parties.
The Authors Guild, however, has not given up the fight and will continue to move forward against Google.
“The publishers’ private settlement, whatever its terms, does not resolve the authors’ copyright infringement claims against Google,” Authors Guild executive director Paul Aiken said in a statement. “Google continues to profit from its use of millions of copyright-protected books without regard to authors’ rights, and our class-action lawsuit on behalf of U.S. authors continues.”
Now that the Olympics are over, or as Jon Stewart calls them, the “Quadrennial Corporate-Sponsored International Ring-Based Sports Event”, it’s time to take a look back at some of the humor the Games inspired. From NBC’s coverage to rumors of rogue wi-fi scramblers and the brand police, the XXX Olympiad’s (snicker) festivities provided plenty of fodder for the jokester in all of us.
My favorites were the Wall Street Journal’s “Homemade Highlights” and the UK Guardian’s “Brick by Brick” series. Gymnastics with pipe cleaners and clothespins? Count me in! Basketball teams made entirely of Legos®? Even better. But, given the litigiousness of the IOC, I thought this would be a good time to discuss why the Guardian and WSJ could get away with making us laugh without fear of the infringement hammer of doom.
The Copyright Statute provides a defense to infringement called “Fair Use” (17 U.S.C. 107). The statute gives us a non-exclusive 4-factor test that provides about as much guidance as furniture instructions requiring an Allen Wrench.
We’ve titled this paper Round 2 because it feels like we’ve been through a boxing match regarding our first article on the subject. Despite the wounds, we felt that the first article brought up a number of interesting issues and generated a few very useful discussions, causing us to rethink our initial conclusion.
First, we’d like to thank the people who commented and gave useful information, particularly those who pointed to relevant links and applicable documents. That was much more helpful than the personal attacks posted in response to our article.
Second we want to again state that we did not accuse anyone of copying, of theft, of illegal activity, of guilt, or of infringement. We tried to walk the line of fairness. Some readers accused us of making those accusations. Interestingly, some readers claimed we were unfairly accusing Oracle, some claimed we were unfairly accusing Sun, and others claimed we were unfairly accusing Google. Maybe that means we succeeded in walking that line. (We did not actually accuse any party.)
We did say, however, that it appears Oracle missed a number of files that appeared to have been copied from Sun, but distinctly noted, “Not knowing all of the details of the case, there could be issues that we’re not aware of.” We realize that this was a long case involving many people, much code, and a very large pretrial record containing a huge number of documents. As we explained in the beginning of the article, we considered this an interesting exercise and wanted to share our results.
The decisions in the recent intellectual property lawsuit of Oracle v. Google[i] have drawn the attention of software developers and intellectual property lawyers alike. As we read about the verdict’s potential to shape future copyright case law, our team here at Zeidman Consulting also wondered whether all the facts in the copyright portion of the case had been uncovered. We decided to pursue these questions using the advanced tools for detecting copyright infringement created by our sister company, Software Analysis and Forensic Engineering (SAFE Corporation) and the thorough processes that we have developed. What started off as simple curiosity turned into an interesting research and analysis project to determine if we could uncover evidence of copyright infringement that Oracle’s experts had missed. Our two-week effort turned up some very surprising results–significant amounts of apparently copied code that was not brought up at the trial.
The Oracle v. Google Lawsuit
The lawsuit began with Oracle accusing Google’s mobile operating system, Android, of violating both patents and copyrights that Oracle holds based on its Java programming language. Specifically Oracle initially accused Google of infringing seven of Oracle’s patents [ii] though five were later thrown out [iii], and also accused Google of copying 37 Java language application program interfaces (APIs) [iv] and other Java source code into Android source code. This article focuses on the copyright portion of the case, leaving the patent infringement claims to a future article (if we have the time).
The major facts in the case are not in dispute. In 2004, Google announced that it had entered into agreements with several major research libraries to digitally copy books and other writings in their collections. Since then, Google has scanned more than 12 million books. Google has delivered digital copies to the participating libraries, created an electronic database of books, and made text available for online searching.
Google users can search its “digital library” and view excerpts – ”snippets” — from books containing search results. For example, when a user enters a search term on the Google Books website, Google displays a list of books containing that term. In many cases, when the user clicks on the link to a particular book, Google displays up to three “snippets” of text from that book — each about an eighth of a page — each of which contains the search term. Millions of the books scanned by Google were still under copyright, and Google did not obtain copyright permission to scan the books.
The Associated Press recently sued Meltwater alleging in its complaint that “[Meltwater] has built its business on the willful exploitation and copying of the AP’s and other publishers’ news articles for profit.” AP asserts copyright infringement claims as well as a common law hot news misappropriation claim under N.Y. law. AP notes that it has to expend significant resources to create its news content. It complains that Meltwater free-rides on its efforts by misappropriating AP’s news and information which Meltwater can then sell for minimal cost via the Internet. It characterizes Meltwater’s actions as a “parasitic” service whose free-riding could make it cost-prohibitive for AP to profitably compete; and, therefore, AP’s economic incentive to continue its business could be significantly threatened.
AP’s common law misappropriation claim has its origins in a remarkably similar suit AP brought against a competing news service almost a century ago. In INS v. AP the Supreme Court, in 1918, enjoined INS, a competing news service, from free-riding on the work product of AP. The misappropriation action was based on INS re-distributing information to its customers which AP had previously released into the public domain. INS was enjoined from using the information for a limited time period while it was hot news (i.e. while it had commercial value as news). The Supreme Court’s decision was based on two rationales: (1) preventing unacceptable conduct in the form of a commercial enterprise free-riding on the investment of time and money by a competitor; and (2) avoiding the resulting ruinous competition that could result from a commercial enterprise free-riding on the efforts of a competitor.
UPDATE: First, please realize that IPWatchdog is not in any way affiliated with Jerk.com. We are a blog reporting on intellectual property and Internet issues. Second, since this article was initially published Jerk.com has moved it hosting at least several times. Third, if you wish to try and get removed please see Jerk.com: Who to Contact to Get Removed (published on IPWatchdog.com 1/18/2013).
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Jerk.com is one of those sites on the Internet that is the poster-child for everything wrong with the Internet and the anonymous communications that are so commonplace. The Internet is the refuge for cowards that wouldn’t have the guts to approach someone and say what they really feel to their face. Shrouded in secrecy provided by the Internet anonymous cowards become emboldened to say vile things and stoop to ridiculous lows — even publishing pictures of young children and asking the Internet community to vote on whether the minor is a jerk.
Jerk.com isn’t the worst website on the Internet by a long shot, but the arrogance with which the site is operated and the flagrant disregard for copyright law is astounding. It seems that anyone can anonymously post a picture of anyone else on Jerk.com, including pictures of young children, and then the voting begins with respect to whether that person is a jerk. All of this is done without the knowledge, permission or consent of the individual, or parents of young children. Once published, anonymous and sometimes vile comments are accepted and posted. Talk about cyberbullying! Disgusting!
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