Fair Use and Google: Ten Years After

(Ten Years After, I’d Love to Change the World)

Digesting the fair use reading in The Authors Guild v. Google in the Second Circuit, I went back to some things that I wrote when the case was filed, ten years ago, in 2005. What did I get right, what did I get wrong, and where and how is the jury (proverbially) still out?

From Google Sued; Books Disappearing (at The Conglomerate):

Will Google Print [as Google Book Search was then known] kill the book?

Books are really, really important things culturally, particularly in Western culture. Have been for hundreds of years. Almost everyone loves books and depends on books. And books are absolutely central to modern copyright law, both conceptually and doctrinally. (They’re even more important than authors, in my view. But I’ll take on one controversial topic at a time.) Books are fixed, limited containers of creativity. Books have beginnings, middles, and ends. Without books, we wouldn’t have “works,” and without “works” we wouldn’t know how to process questions of incentives and questions of access. We wouldn’t know where to put the author’s “moral right,” if there is one; we wouldn’t know what to refer to when we make “fair use” of a work. We wouldn’t know what to distribute, and distribution of creativity is the ultimate goal of the whole system.

If you expose the creativity without framing it in a book — and this is what Google proposes to do — all you have is data. Data that you can mix and remix and reuse and share in bits (bytes) and pieces and aggregates of new scale and scope. Data that is everywhere and nowhere, all at once.

When this happens — and Google may not do it, but I suspect that in the long run, it will happen — we’ll need to rethink not only the premises of copyright law, but we’ll also need to rethink some of our arguments about where culture comes from, where it goes, and what we do with it. This is the sense in which Google Print may be killing the book. And if the book dies, copyright as we know it ultimately dies too. (Note, by the way, how this question tracks what has been happening for the last few years in the music business, and particularly how it tracks the evolution of the concept of the copyrighted “work” in the context of sampling litigation. When copyright protects individual chords, then copyright really is protecting just data.) I confess that I have mixed feelings about this, and I haven’t come to a conclusion about where my sympathies lie. Right now I’m looking forward to, or at least hoping for, a good fight.

But there’s more. In Google Print II (here at madisonian.net), I characterized the case as “bet the Internet” litigation. GBS turns books into data (one might say, as Judge Leval did, that GBS “transforms” them); data means search; search means the Internet. Not to get all reductive and everything, but that, it still seems to me, just about sums it up. I was right (this case is all about how the concept of the book interacts with the concept of the Internet), I was wrong (I was somewhat skeptical of the fair use argument), and we still don’t know where, exactly, the roulette wheel will stop. Google has made an enormous bet. I wrote once that all of Internet law can be summed up in the stories represented in the movie Casablanca. That idea, too, seems to have legs. Google has put its chips on twenty-two. Les jeux sont fait. Is Judge Leval a contemporary Rick Blaine? Or will copyright find its Victor Laszlo at the Supreme Court?

Working Fair Use

Are there tensions in recent fair use cases regarding methods? Fair use analysis has traditionally and conventionally posed a set of very “work-specific,” nuanced questions. For at least 15 years or so, since the rise of the original Napster technology (and really, at least since “librarying” was at issue in the original Betamax litigation), social practices and information technologies have raised the question of large-scale alleged fair uses. Yet copyright law sticks somewhat stubbornly to the “work-specific” legal framework. Are cracks appearing in that facade? Have recent cases opened that conversation in earnest? Continue reading Working Fair Use

Legal Education Begins Anew

Every year since I began teaching, I’ve been nagged by a sense that I was doing some wrong things in the classroom, but for some right reasons.  That sense accelerated over the last five years, to the point that I’ve mostly thrown over my own internal framing of what and how I teach.  As a few readers of this blog know, I’ve also externalized that framing in a series of manuscripts.  I posted a new one just the other day.  I’m taking this moment to collect all of these here in a single post, in a transparent attempt to increase their circulation.

In reverse chronological order, they are:

Preparing for Service: A Template for 21st Century Legal Education (unpublished)


Legal educators today grapple with the changing dynamics of legal employment markets; the evolution of technologies and business models driving changes to the legal profession; and the economics of operating – and attending – a law school. Accrediting organizations and practitioners pressure law schools to prepare new lawyers both to be ready to practice and to be ready for an ever-fluid career path. From the standpoint of law schools in general and any one law school in particular, constraints and limitations surround us. Adaptation through innovation is the order of the day.

How, when, and in what direction should innovation take place? Who should lead, guide, and participate? These are questions often asked in both legal education in particular and in higher education in general. Rarely are answers accompanied by specific examples, strategies, or programs. This paper offers precisely that specificity. It documents one institution’s process and output, beginning with the concept of innovation in the face of multiple challenges and proposing one set of concrete, actionable strategies, tactics, and programs. These range from school-wide interventions to ideas for use at the level of the individual faculty member and course.

The purpose of making the paper available is to note merely that if innovation is a hill to be climbed, then it can be climbed. The process and results may be more valuable if they are shared with others, even if the particular route documented here is not the only one available and may not the best for all times and places.

Innovators, Esq.: Training the Next Generation of Lawyer Social Entrepreneurs (published at 83 UMKC L. Rev. 967 (2015))


Today’s law school graduates need to be entrepreneurial to succeed, but traditional legal education tends to produce lawyers who are “strange bedfellows” with entrepreneurs. This article begins by examining the innovative programs at many law schools that ameliorate this tension, including the programs offered by our Innovation Practice Institute (IPI) at the University of Pittsburgh School of Law. Although these programs train law students to represent entrepreneurs and to be entrepreneurial in law-related careers, few (if any) law schools train law students to be “business” entrepreneurs. Drawing on our own experiences and the writings of Bill Drayton, the lawyer who pioneered the field of social entrepreneurship, we discuss how some lawyers have applied their legal education to be successful “social” entrepreneurs. Finally, we outline the IPI’s three-year law school program explicitly designed to train law students to be social entrepreneurs.

Leading New Lawyers: Leadership and Legal Education (unpublished)


Lawyers may become leaders, but leaders also may become lawyers. The path to leadership can begin in law school. This short essay describes a leadership development course developed and implemented at a law school over the last four years.

Visions of the Future of (Legal) Education (unpublished)


One law professor takes a stab at imagining an ideal law school of the future and describing how to get there. The Essay spells out a specific possible vision, taking into account changes to the demand for legal services and changes to the economics and composition of the legal profession. That thought experiment leads to a series of observations about values and vision in legal education in general and about what it might take to move any vision forward.

There’s more:

Anyone interested in this topic or this material should read the stimulating exchanges in the mobblog on legal education that Deven Desai organized here in 2008.

I took some tentative further steps into deeper water in 2012, at the Faculty Lounge.


This One Goes to 11

Just about 11 years ago, on August 30, 2004 to be precise, I launched this blog.  Blog authorship has expanded and shrunk since then; posting frequency has increased and decreased; the blog’s scope has expanded – and expanded some more; I’ve cycled through a lot of templates and designs.  The most recent design update leaves the blog with (still) a pretty primitive appearance, but most of the readership today accesses the posts through Twitter and Facebook.  Cosmetics don’t matter so much, I think.

But, interestingly, I haven’t put the blog (and its readers) out of its misery.  (During my tenure here, I’ve created, supported, and eventually put to bed two other blogs.  At one point I was maintaining and posting to five blogs in all, concurrently.)  Madisonian.net chugs on.  There is more to say, and there is some that was said before that needs to be revived, renewed, and said again.  The Internet is great at remembering things, for better or worse.  People often aren’t.

IP and Ignorance

My views of the deficiencies and virtues of intellectual property scholarship pop up on this blog from time to time, usually just before or just after the annual IPSC – Intellectual Property Scholars Conference.  See posts from 2014, and 2010, and 2007.

I am headed to Chicago tomorrow for the 2015 edition of IPSC, but instead of ranting about the state of IP scholarship, instead I’ll point you all to a provocative article:

Andrew Abbott, “Varieties of Ignorance,” American Sociologist, 41:174-189, 2010.

You’ll need access to Springer or JSTOR, etc., probably through an institutional subscription, to read the whole thing in English.  At least part of the English language version may be available here.  There is a German language version available here.

The video above is, of course, the trailer for “Birdman, or the Unexpected Virtue of Ignorance,” which won the Best Picture Academy Award earlier this year. I enjoyed that film but thought that “Boyhood” was superior in just about every way.