Copyright Blog Update: The Future of the Georgia State Case, Google Censors the Internet (When it’s Profitable) and Active Nashville Songwriters Drop 80%

Stephen Carlisle January 9, 2015

Time to update several topics that were the subject of blog posts in 2014.

The Future of the Georgia State Case

Back on October 24, 2014, this blog discussed the impact of the ruling in Cambridge University Press v. Patton, a/k/a the “Georgia State” case. ¹ The case had the effect of eliminating “bright line” rules when engaging in fair use analysis, but reaffirmed the preferences afforded to not-for-profit educational institutions when considering the question of fair use.

On January 2, 2015, the 11^th Circuit denied the request of the publisher plaintiffs for a rehearing of the case. (Link currently unavailable) Georgia State also filed for rehearing, which was also denied. The denials of the rehearing request were made without comment, leaving the previous opinion intact and unmodified. So, what options do the publishers have at this point?

The first would be a direct appeal to the Supreme Court of the United States. This is unlikely to succeed for several reasons. The SCOTUS has absolute discretion in what cases it hears, and only accepts a tiny fraction of those cases it is asked to hear. So, the publishers must demonstrate some compelling reason why the Court should hear the case at this time. The 11^th Circuit opinion only re-affirms what the SCOTUS has already held: there are no bright line rules and every claim of fair use must be examined on a case by case basis. Plus, to my knowledge, there are no conflicting opinions from any of the other circuits, a prime reason that the SCOTUS chooses to accept a case. These factors don’t mean the publishers won’t try, but it is a huge long shot in terms of potential success.

Next would be to re-try the case. This will be unpalatable to the publishers. First and foremost, they would be re-trying the case in front of the same Judge who ruled against them on the first trial. Next, while only one Appellate Judge said he thought it was clear that Georgia State was not engaging in fair use, the other Judges only disagreed with the methodology of how the Judge arrived at her decision, not the decision itself. She could stay within the guidelines set by the 11^th Circuit and largely arrive at the same conclusion. This, of course, would lead to another appeal, all the while consuming large amounts of time and incurring huge amounts of attorneys’ fees in the process.

The publishers could try to settle the case. While this has a facial appeal as a strategy, I feel that this will not work. Remember, since Georgia State is an arm of the State Government of Georgia, they have sovereign immunity from having to pay damages. The publishers have no leverage there. What the publishers really want is a ruling that the 1976 Classroom Copying Guidelines are the maximum allowable copying. Not only is Georgia State not going to agree to this since it is so restrictive, it flies in the face of the 11^th Circuit ruling of ”no bright line rules.” So, even if they were to agree to it, the Judge could not enter a judgment ruling this in the face of the 11^th Circuit precedent to the contrary. The same fate befalls a ruling that the course pack cases are equivalent to online posting. The 11^th Circuit also ruled that this is not so. Lastly, Georgia State long ago changed their policy with regards to the posting of copyrighted materials on line. So what is there that Georgia State can give up in settlement that the publishers would want? Nothing that I can see.

Which leads me to the last strategy, dismiss the case and try again in a different court. This one is a bit tricky since it has the distinct odor of forum shopping. The plaintiff(s) would have to be different, as the 11^th Circuit ruling is binding on the current publisher plaintiffs. The location would have to be outside of Florida, Georgia and Alabama for the same reason, all District Court Judges in those states are currently bound by the 11^th Circuit opinion. The ultimate strategy is to get the 11^th Circuit ruling over-turned, and the only institution that could do that is the Supreme Court of the United States. The best way to do this, as noted above, is to create a conflict between circuit courts. So, the new plaintiff-publisher would have to file suit against a different educational institution or library. Perhaps they might choose as their target one of the many “for profit” universities, who are less sympathetic as a defendant than a not-for-profit institution. The new plaintiffs would have to win a judgment in their favor, and then prevail on the inevitable appeal. This would then create the necessary conflict that might cause the SCOTUS to take up the issue. The ball, as the cliché goes, is in the court of the publishers.

Google Censors the Internet (If it’s Profitable)

This blog has long been critical of Google and its self-serving and sometimes underhanded approach to processing DMCA takedowns. ² Now that 2014 is in the books, let’s take a look back. According to the website Torrent Freak, Google processed over 345 million takedown notices in 2014. ³ The math is easy. This amounts to nearly 1 million takedown notices per day which are being served on Google. I asked way back on July 24, 2014, why doesn’t Google see this as a tremendous waste of human resources? ⁴ Would it not be more profitable to make Google’s policy “take-down and stay-down?”

Apparently not. As previously pointed out on this blog, Google will happily take down or block access to websites for a variety of reasons. ⁵ As this article makes vividly clear, Google is also more than willing to censor websites and suppress free speech, if it is in Googles best business interest to do so. ⁶ This is what Google claims that it does:

“For our own websites and for the Internet as a whole we have worked tirelessly to combat internet censorship around the world,” Google co-founder Sergei Brin said in a 2011 blog post. “I am proud of the role Google has played.” ⁷

According to this money.cnn.com article, this is what Google really does:

“… In Turkey, Google takes down links to sites that defame the country’s founder, Mustafa Kemal Ataturk — that’s illegal there. In Thailand, denigrating the Thai monarch is against the law, so Google blocks YouTube videos in Thailand that ridicule King Bhumibol Adulyadej.” ⁸

“In 2010, Google became so exasperated by China’s censorship demands that it pulled its business out of the country altogether. At the time, Google said it would abide by censorship demands from democratically elected governments, (emphasis added) but Chinese people did not have the ability to choose the leaders making the censorship demands…Yet Google plays both sides of the fence. Though it doesn’t operate in China, it does operate in other countries with dictatorships or monarchies, including Zimbabwe and Thailand. Google declined to comment for this story.” ⁹

The reality is Google is more than happy to censor the internet and squash free speech, as long as it is profitable and in their best interests.

So, the next time Google trots out the old “we don’t want to suppress free speech” canard as to why they won’t de-list pirate sites, you’ll recognize what Google is trying to feed you: a two faced baloney sandwich.

Active Nashville Songwriters Drop 80%

Back on August 13, 2014, this blog did an in depth analysis of the economic harm done to copyright creating entities from internet piracy. ¹⁰ Last Monday, The Tennessean released this article on Nashville songwriters, titled Nashville’s Musical Middle Class Collapses. ¹¹ This article presents some fairly sobering statistics on what happened to songwriters in “Music City” in the internet age.

“Since 2000, the number of full-time songwriters in Nashville has fallen by 80 percent, according to the Nashville Songwriters Association International. Album sales plummeted below 4 million in weekly sales in August, which marked a new low point since the industry began tracking data in 1991. Streaming services are increasing in popularity but have been unable to end the spiral.

The result has been the collapse of Nashville’s musical middle class — blue-collar songwriters, studio musicians, producers and bands who eke out a living with the same lunch-pail approach that a construction professional brings to a work site.” ¹²

So, tell me again how internet piracy does not have a negative economic effect on the music industry, but actually helps it?