We were waiting and watching for what promised to be a landmark fair use decision from Judge Denny Chin in the Google Library litigation when the case was stayed while its certification as a class action was appealed.  In the meantime, a companion case before Judge Harold Baer, The Authors Guild v. Hathitrust, involving a consortium of universities that are cooperating with Google and using its digitized copies of books for their own purposes, moved along rather quickly.   On October 10th, Judge Baer handed down a decision upholding the universities’ fair use defense, and it is being touted as a harbinger of ultimate victory for Google.  Is it?




At a campaign rally in Pennsylvania yesterday, Representative Paul Ryan used Twisted Sister’s 1984 anthem “We’re Not Gonna Take It” as his walk-on (or perhaps walk-off) music. For those who don’t know or remember it, the song is a timeless expression of core Republican values (e.g., “your life is trite and jaded/boring and confiscated/if that’s your best, your best won’t do”). The song’s composer, Twisted Sister frontman, host of radio’s “House of Hair,” and genuine music business nice guy and wit, Daniel “Dee” Snider, objected: “I emphatically denounce Paul Ryan’s use of my band Twisted Sister’s song, ‘We’re Not Gonna Take It,’ in any capacity. There is almost nothing he stands for that I agree with except the use of the P90X.”

The story initially caught my attention because I recently represented Snider’s interests in a copyright infringement case involving “We’re Not Gonna Take It” (along with “I Wanna Rock” and “Burn in Hell”).  More generally, though, stories like this have become increasingly commonplace as, mostly Republican, candidates have taken to appropriating music from the other side of the culture wars, perhaps as a means of deflecting attention from the revanchist social policies they actually espouse.  Do Snider and other victims of this form of cognitive dissonance have any claim under copyright law?




Could a university chemistry department routinely scan copyrighted scientific journals in their entirety to create an electronic, searchable database that puts their contents at the fingertips of professors and students, so they could use the data compiled by others in perfectly appropriate ways in their own scholarship?  I think the answer is clearly “no.”  As a result, most universities will subscribe, for a fee, to commercial databases that provide access to such materials under license from the publishers.  Is the answer different if the English department wishes to scan all newly published novels in their entirety, so that scholars engaged in “Digital Humanities” can more readily “understand individual texts, the connections between texts, and the evolution of literary language”?  That would seem to be the implication of an interesting but ultimately unavailing brief recently filed by a group of such scholars as amici curiae (friends of the court) in the Google Library Project case. (more…)


It has been seven years since The Authors Guild and some of its individual members first filed suit against Google, charging that its Library Project—to the extent it posted “snippets” of works still in copyright—constituted a massive copyright infringement.  Initially, Google welcomed the class action as a vehicle for negotiating a global settlement of such claims that would have, among other things, given Google the exclusive right to digitize so-called orphan works, millions of books still in copyright but not in print and for which the identity of the copyright owner could not readily be ascertained.  It was a breathtakingly imaginative and audacious use of the litigation process, “an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court.”  But ultimately two negotiated settlements were rejected in the face of intense opposition, including antitrust concerns raised by the Department of Justice.  Now Google and the authors find themselves in an old-fashioned lawsuit.


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