Texas considering Open Document format - SB 446

Texas, following Massachusetts (covered .here and here at OOTJ), is considering a bill that would mandate use of open document format rather than Microsoft's product. Commentary by Sam Hiser at his blog. I'll bet Microsoft is mad.

A Brave Librarian in Baghdad

Today's New York Times includes an inspiring but ultimately tragic story about Saad Eskander, the director of Iraq's National Library and Archive in Baghdad. Dr. Eskander, who is working under harrowing conditions to safeguard the collection and protect his staff, is keeping a diary of his experiences. The diary is available over the British Library website. "Written in a flat, unemotional style, the entires relate the bombings, blockades, shootings, threats, shortages and petty frustrations that make up everyday life for the cadre of civil servants working at Iraq's main cultural and literary storehouse. A complaint that heating fuel prices are 40 times higher than in the fall is followed by a report on the assassination of one of the library's bright young Web designers and the need to ask the government to keep the electricity on." The British Library has been publishing the diary since December 30, but it includes material from mid-November. One of the most sobering parts of the diary is Dr. Eskander's chart that makes clear the impact of sectarian violence on his staff for just the month of December: four employees assassinated and two kidnapped, "66 murders of staff members' relatives, 58 death threats and 51 displacements." I can't even imagine working under conditions like this, and am very proud of be part of a profession that that includes people like Dr. Eskander and his staff.

The Bush Presidential Library In the News Again

Many members of the faculty at Southern Methodist University are against plans to build the George W. Bush Presidential Library on their campus, reports today's issue of Inside Higher Education. The object of their opposition is not the library itself, but rather "a policy institute to be affiliated with it that would have as its mission promoting the Bush philosophy." This institute would have "an explicitly ideological identity" and would report to the "president's foundation instead of to the university"; this situation would run "counter to academic values," according to the critics. The university, predictably, argues that the library would have a great deal of scholarly value and bring long-term gains to the campus.

Enter "national groups of archivists and historians" who are attempting to expand the debate to the question of access to presidential papers. They argue that a presidential library that does not contain all the papers of a particular president is nothing more than "a museum of political propaganda." The reason for their concern is Executive Order 13233 signed in the aftermath of the 9/11 attacks. This executive order gives "presidents and former presidents much more control over their records" and extends "that right to a family member when a former presisdent dies"; in effect "the Bush order goes beyond the control asserted by any president since Nixon (whose efforts to control his papers led to various laws to promote access)."

According to Benjamin Hufbauer, an associate professor of art history at the University of Louisville and author of Presidential Temples: How Memorials and Libraries Shape Public Memory, as long as the executive order stands, SMU has no justification for arguing that the Bush Library will be a great scholarly resource. Groups such as the Society of American Archivists and the Project on Government Secrecy of the Federation of American Scientists are pushing SMU to reject the library unless Bush reverses the executive order. "Steven Aftergood, director of the [Project on Government Secrecy], said, 'I think the decision about where to locate the library has the potential to merge with a larger debate regarding Bush administration information policy.'" There is no indication that SMU will rethink its position on the presidential library, however.

The Empire Strikes Back! Disputing Global Warming

The Guardian reports that ExxonMobile and a think tank (American Enterprise Institute) closely affiliated with the Bush (W) administration has been offering cash to scientists to dispute the UN Intergovernmental Panel on Climate Change (IPCC).

The AEI has received more than $1.6m from ExxonMobil and more than 20 of its staff have worked as consultants to the Bush administration. Lee Raymond, a former head of ExxonMobil, is the vice-chairman of AEI's board of trustees.

The letters, sent to scientists in Britain, the US and elsewhere, attack the UN's panel as "resistant to reasonable criticism and dissent and prone to summary conclusions that are poorly supported by the analytical work" and ask for essays that "thoughtfully explore the limitations of climate model outputs".

Climate scientists described the move yesterday as an attempt to cast doubt over the "overwhelming scientific evidence" on global warming. "It's a desperate attempt by an organisation who wants to distort science for their own political aims," said David Viner of the Climatic Research Unit at the University of East Anglia.

"The IPCC process is probably the most thorough and open review undertaken in any discipline. This undermines the confidence of the public in the scientific community and the ability of governments to take on sound scientific advice," he said. [snip]

Ben Stewart of Greenpeace said: "The AEI is more than just a thinktank, it functions as the Bush administration's intellectual Cosa Nostra. They are White House surrogates in the last throes of their campaign of climate change denial. They lost on the science; they lost on the moral case for action. All they've got left is a suitcase full of cash."

On Monday, another Exxon-funded organisation based in Canada will launch a review in London which casts doubt on the IPCC report. Among its authors are Tad Murty, a former scientist who believes human activity makes no contribution to global warming. Confirmed VIPs attending include Nigel Lawson and David Bellamy, who believes there is no link between burning fossil fuels and global warming.

ick. Meanwhile, The Christian Science Monitor published a report Jan. 31 headlined: "Has the White House interfered on global warming reports? A new report claims that the Bush administration has suppressed scientists' climate-change work."

More than 120 scientists across seven federal agencies say they have been pressured to remove references to "climate change" and "global warming" from a range of documents, including press releases and communications with Congress. Roughly the same number say appointees altered the meaning of scientific findings on climate contained in communications related to their research.

These findings, part of a new report compiled by two watchdog groups, shed new light on complaints by a scattering of scientists over the past year who have publicly complained that Bush administration appointees have tried to mute or muzzle what researchers have to say about global warming.

"We are beyond the anecdotal," says Francesca Grifo, director of the scientific integrity program at the Union of Concerned Scientists (UCS), one of the two groups, referring to press reports of a dozen instances of interference that have emerged over the past 12 months. "We now have evidence to support the view that this problem goes deeper than just these few high-profile cases." [snip]

Meanwhile, Congress is considering several pieces of legislation that would impose controls on industrial carbon-dioxide emissions – blamed for trapping heat in the atmosphere and contributing to the noticeable warming effect on the earth's climate.

The question is not so much about federal scientists' ability to publish their results in specialized journals that few but their colleagues read, the report's authors say. Instead, the trouble arises when agencies translate "journalese" into language the general public or lawmakers can grasp for use in official government reports or media releases. [snip]

Sometimes scientists and career public-affairs officers would send press releases related to global warming up the ladder for review, then never hear back. Or appointees changed the wording in ways that scientists felt distorted the results or their implications, and the researchers weren't given a chance to argue their case. One of the most blatant examples focuses on the issue of hurricanes and global warming. According to the report, in 2005, the White House stepped in to block an interview MSNBC sought with NOAA scientist Thomas Knutson, who a year earlier had published a modeling study on the potential link between hurricanes and global warming. The interview was to focus on new research by other scientists that suggested global warming has contributed to trends toward stronger hurricanes.

Documents GAP obtained showed that instead of approving subsequent interviews with Dr. Knutson, high-level public-affairs officers routed interview requests to NOAA scientist Chris Landsea in Miami, who argued, in part, that the quality of global hurricane data was too poor and inconsistent to draw meaningful conclusions. In another instance, reporters interested in interviewing a NOAA scientist who had coauthored a new research paper concluding that modern warming "is dominated by human influences" were sent instead to then-deputy administrator Jim Mahoney.

Details of interference

In all, 150 scientists reported a combined 435 instances of real or perceived "interference" related to global-warming research within the past five years. This has led to self-censorship, Mr. Maassari says,

Link here for the Executive summary from the joint report.

Link to Government Accountability Project, the second group that sponsored the investigation and report. This site, like the UCS link above, has excellent links and lots of reports and information on environmental issues, as well as lots of other topics.

Link to the House Oversight and Government Reform Committee, chaired by Rep. Henry Waxman. They held hearings (link) on governmental interference with environmental scientists. Visit this last link for a nice collection of the hearings' testimony, list of witnesses and various statements.

Signing Statements Update

The Boston Globe reported on February 1 that John Conyers, Jr., the new chair of the House Judiciary Committee, stated that "he is launching an aggressive investigation into whether the Bush administration has violated any of the laws it claimed a right to ignore in presidential 'signing statements.'" The issue boils down to whether the administration has abused its powers, which Conyers plainly believes it has. "Bush has claimed that his executive powers allow him to bypass more than 1,100 laws enacted since he took office. But administration officials insist that Bush's signing statements merely question the laws' constitutionality, and do not necessarily mean that the president also authorized his subordinates to violate them." Six attorneys have been added to Judiciary's staff in order to pursue the investigation, a measure of how seriously Conyers considers this issue to be. The article cites data compiled by Professor Christopher Kelley, a political science professor at Miami University in Ohio. According to Professor Kelley, "Bush has used signing statements to challenge 1,149 laws that were contained in 150 bills...By comparison, all previous presidents combined challenged about 600 total laws."

Improve Basic Research Skills

Whether you are doing legal research, or another kind, online or paper, here are some basic research skills that will improve your results:

I. Develop a Research Process
A. Stop to think before you start researching. It's worth the time you put in at the start because you'll be much more efficient (get it more quickly) and effective (get everything you need) if you plan!
B. Identify significant facts, and develop search terms.
1. Be creative and come up with synonyms.
2. Be flexible and add new terms when you run across them in your research.
3. Be meticulous and note the date you added the new term -- you might want to re-run earlier searches using the new term!
C. Frame issues (you may need to read a bit in a hornbook or textbook to help identify issues)
1. May need to subdivide, narrow or broaden, or even add
issues as research continues.
2. Arrange in a logical manner, with issues which depend upon
the outcome of other issues listed later.
3. Most methodical research method is to exhaust all relevant
authority on 1 issue before beginning research on another.
Keeps your research focused; keeps you from straying
into irrelevant areas; and lets you quickly get an idea
of the time required for the project. Legal issues can't
be compartmentalized by the source of law.
D. Identify relevant sources (whether paper or electronic) For any kind of research, think about what kind of resource might answer your question. Would there perhaps be a statute or regulation on this matter? Might it be discussed in a journal article or a practice manual?
1. List them in the order to be used for each issue, at least
when you are just a beginner in legal research. This will
keep you from omitting a source or researching in a less
efficient way.
2. Good beginning places (for law) if you are unfamiliar with the
area:
a. Hornbook or Treatise, nutshells.
b. CLE and jury instructions (excellent if available; jury
instructions are good sources for the elements of the cause of action. CLEs will mention the state cases, statutes, constitutional sections that will govern.)
c. Law journal articles (or other journals, too).
d. Legal encyclopedias (state encyclopedias are better if
available because national are too general)
e. ALR (American Law Reports, 1st - 4th and Fed.) Good
if your case is very fact-sensitive or if there are no cases in your jurisdiction. These survey cases nationwide, so you can see what other states have done, find a case that is more factually similar, and discover if there are clear
patterns among the states or circuits.
3. To decide where to start, use these pointers:
a. Look at comprehensiveness, type of material included, level of detail and dates covered, to choose the set or database that best matches your research needs.
b. For broad overviews, choose paper sources, such as hornbooks, treatises or a local encyclopedia or CLE materials. Don=t go online until you have enough background to know the terms of art and the most important primary sources of law in the area!
c. For broad concepts, begin with paper sources, as in b, above.
d. For statutory or regulatory research, usually begin with paper sources.
e. For common terms or terms that can have more than one meaning,
begin with paper or a carefully structured electronic search.
f. For unique or unusual words or phrases, choose electronic searching.
g. For cases that define a word or phrase, use the set Words and Phrases or the volumes at the end of most digests marked Words and Phrases.
h. For proper names and terms of art, choose electronic searching.
i. For fact sensitive research (details of the facts would change the outcome), choose electronic sources or ALRs.
j. For multi-year or multi-jurisdiction searches, choose electronic sources or ALRs.
k. For the elements of a cause of action, try looking at jury instructions!
l. If a computer search turns up nothing, use the books! There may be a problem with the term(s) you used, or you may be in the wrong database.
D. Research the issues: Take careful notes of which sources you have looked at, what terms you searched and what you found. Include dates! You will save yourself time in the long run, because you will avoid redoing research. Develop your own method of taking notes, but be orderly and consistent. Write down the complete cite! If you are on Westlaw or Lexis, use the "Research Trail" or "History" to keep your records. You can keep refreshing these so they don't disappear after 3 days!
1. As you gain expertise and confidence, you'll develop
shortcuts
2. You'll also develop insight into when it's safe to
terminate your research. Generally, it's better to err on
the side of caution, but you need to balance cost as well.
Eventually, you will notice that all the cites are to statutes
and cases that you have already seen. This is a sign that
you have found the leading cases in your jurisdiction.
E. Read before going online unless you are confident you know
the terms of art in the area!!!!
F. Communicate your solution - organizing and writing legal
memoranda is beyond the scope of this course, but vital.

II. Statutes first!
A. Look first at any relevant statutes. More law is governed
by statutes than it looks like when you are in law school. If
there is a governing statute, that is what will decide the case
more than case law. Also, annotated statute books are excellent
case finding tools, and can lead you to forms, and other resources.
B. Be sure you have updated and shepardized all statutes. Re-
member to use interim supplements and legislative services or
online services to be sure the statute hasn=t changed.
C. Follow up with regulations from relevant agencies, if any.
D. Be alert to constitutional issues, as well.

III. Finding Relevant Cases
A. If there are any statutes, regulations, constitutional issues, be
sure you have looked at cases construing them. If not, or after
doing that, use digests to locate cases by subject matter. Remember
to use the West key number if you have a case from another juris-
diction to locate cases in your jurisdiction=s digest. Key numbers
can also be used on Westlaw to help target your search.
B. Be aware of jurisdiction! If the case is higher up in the judicial
chain of command in your jurisdiction, it is mandatory authority.
If the case is from another jurisdiction, it is only persuasive. If it
is the same court, your judge(s) will probably follow, but are not
obliged to in the same way as if the precedent were from a higher
court.
C. Shepardize all relevant cases, not only to make sure they are still
good law, but also to find other relevant cases in the same jurisdiction.
Sooner or later, your shepardizing will lead you in a circle; when that
happens, you will know you have probably found all relevant cases in
your jurisdiction.
D. Update your research by looking at advance sheets, using online or
CD-Rom services, the latest Shepards or Westlaw=s new West Cite service.

Eco-shift; the politics of global warming has changed at last!

The upcoming issue of The New Yorker has a short report on the recent changes in U.S. government following the November elections here. Here are highlights with some helpful links:

release last week of the latest report by the Intergovernmental Panel on Climate Change represents an important, perhaps even historic, event.

Founded in 1988, the I.P.C.C. is a joint venture of the United Nations Environment Programme and the World Meteorological Organization. Every four or five years, it conducts an exhaustive survey of the available data and issues a multi-volume assessment of the state of the climate. By the time the I.P.C.C. publishes an assessment, it has been vetted by thousands of scientists, as well as by the organization’s hundred and ninety-odd participating governments. The process guarantees that I.P.C.C. reports are conservative—indeed, frequently out of date

IPCC link includes the report referenced above, plus a number of other working group reports.

PhysOrg website with news reports about the report. Also the source of the photo above of polar bears on melting icebergs. This website notes about the image, that it was released by the "Canadian Ice Service Friday Feb. 2, 2007 and taken by photographer Dan Crosbie in 2004 shows two polar bears on a chunk of ice in the arctic off Northern Alaska.

Back to the New Yorker article, which moves on to focus on U.S. politics:

As it happens, the release of the report coincides with an important political shift. Though President Bush remains recalcitrant—he could barely bring himself to utter the phrase “climate change” in his State of the Union address last month—the Republican defeat in November has removed from power Congress’s most reliable obstructionists. In the Senate, James Inhofe, of Oklahoma, best known for having declared global warming the “greatest hoax ever perpetrated on the American people,” ceded the chairmanship of the Environment and Public Works Committee to Barbara Boxer, of California. “For the last twelve years . . . all we’ve been talking about is, ‘Is there global warming?’ ” Boxer recently told USA Today. “I’m over it. We need to move forward.” Boxer herself has signed on to a bill, sponsored by Senator Bernie Sanders, of Vermont, that would cut America’s carbon emissions by eighty per cent by 2050.
(snip)
On the House side, the Democratic majority has elevated Representative John Dingell, of Michigan, to the chairmanship of the Energy and Commerce Committee. Dingell assumes the post from Joe Barton, of Texas, whose tenure was marked by a series of investigations (or, if you prefer, witch hunts) targeting prominent climate scientists. Now eighty, Dingell has spent more than half a century in Congress protecting the American auto industry. Nevertheless, he has promised to hold hearings on climate change, and has invited Al Gore to testify. Meanwhile, House Speaker Nancy Pelosi has gone a step further, creating a Select Committee on Energy Independence and Global Warming, reportedly to be headed by Representative Ed Markey, of Massachusetts. “The science of global warming and its impact is overwhelming and unequivocal,” Pelosi said, announcing the committee’s formation last month. “Now is time to act.”

Here is Nancy Pelosi's press release announcing the establishment of the Select Committee on Energy Independence and Global Warming.

Link here to an in-depth article from The Washington Post on House actions, titled "House Repeals Tax Break for Big Oil."

And lastly, the New Yorker article discusses the coalition of several large U.S. corporations into the U.S. Climate Action Partnership. Their website includes the names of member organizations, their principles and a report, "A Call for Action," in pdf.

Take a look at the Pew Center on Global Climate Change for more helpful info.

And The New Scientist Climate e-magazine has helpful articles.

The American Association for the Advancement of Science webpage on climate change has helpful articles and links.

And to see the text of bills in the House and Senate introduced since 2007 began, search Thomas with terms ["carbon dioxide" AND reduction AND DATE 2007].

And now for something completely different

A cat that likes to be spanked:

Is the VP the Fourth Branch?

Many law librarians and research and writing instructors have lamented the lack of comprehension by first-year law students of the basics of high school civics classes and the three co-equal branches of government--legislative, executive, and judicial. Recent decades--certainly as far back as Nixon's claims that "if the president does it, it's legal" and on through the Reagan administration's Iran-Contra scandals (and, to be fair, repeated Democratic and Republican calls for a line-item veto) through Bush's novel use of presidential signing statements to make legislation say the opposite of what it was meant to say--may have left many of us understandably muddled about the relations among the three branches. But at least I've always assumed that the Office of the Vice President was firmly located in, and subservient to, the President. Until I read this by Joshua Micah Marshall:

I will confess to having been extremely skeptical in the early years of the Bush Presidency that Cheney was really running the show. It seemed too facile an explanation for what I was convinced was a far more complicated situation. Until the 9/11 Commission report came out.

Even the watered-down version of events in the Commission's report made it absolutely clear that Cheney, ensconced in the White House bunker on the morning of the attacks, had issued shootdown orders outside of the chain of command and then conspired with the President to conceal this fact from the Commission.

Since then, I've gone from being open to the idea of an Imperial Vice Presidency to being convinced that historians will debate whether something approaching a Cheney-led coup d'etat has occurred, in which some of the powers of the Executive were extra-constitutionally usurped by the Office of the Vice President.

Last week, in trying to break the lock on who actually works in the OVP--which the Vice President refuses to reveal--the guys at Muckraker stumbled across this entry from a government directory known as the "Plum Book":

The Vice Presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch, but is attached by the Constitution to the latter. The Vice Presidency performs functions in both the legislative branch (see article I, section 3 of the Constitution) and in the executive branch (see article II, and amendments XII and XXV, of the Constitution, and section 106 of title 3 of the United States Code).

It appears that Cheney's office submitted this entry in lieu of a list of its employees, as federal agencies must do. It sounds like something Cheney's current chief of staff, David Addington, might have written. Cheney and Addington have been the among the most powerful proponents of the theory of a "unitary executive," but there are indications that they have also advanced, though less publicly, a theory of a constitutionally distinct and independent vice presidency....

By custom and tradition, the Vice President's role had been circumscribed by how little express power and authority the Constitution granted the position. Hence, all the jokes over the years about the vice presidency. But in a move that is decidedly anti-conservative, in the conventional sense, Cheney moved to fill the void. I fear that what we will eventually find are structural flaws that were deliberately exploited by the OVP, which in turn further undermined constitutional and statutory structures.

Still, I can't help but be fascinated by the more pedestrian issue of how Cheney continues to assert himself so vigorously without running up against the ego of a cocksure President. How is it that Bush, who is so caught up in macho public demonstrations of his own personal strength and courage, can tolerate a shadow presidency within his own White House? What kind of spell has Cheney cast that allows Bush to continue to believe he is the decider? You can imagine all sorts of dysfunctional psychological dramas playing out behind the scenes.

New Yorker on Google Book Project

Jeffrey Toobin has a lengthy article in this week's New Yorker magazine (link to full article in title, above), in the Annals of Law, "Google's Moon Shot." He recaps the history of the Google Book Project to create a digital library fully searchable with the Google search engine. He then considers two recent copyright suits against the project, and what Google's likely response will mean for the rights of users.

In addition to forming partnerships with libraries, the company has signed contracts with nearly every major American publisher. When one of these publishers’ books is called up in response to search queries, Google displays a portion of the total work and shows links to the publisher’s Web site and online shops like Amazon, where users can buy the book. “We are helping the publishers reach consumers that otherwise might not have known about their books and helping them market their books by giving limited but relevant previews of the books,” Jim Gerber, Google’s director of content partnerships, told me. “The Internet and search are custom made for marketing books. When there are a hundred and seventy-five thousand new books each year, you can’t market each one of those books in mass market. When someone goes into a search engine to learn more about a topic, that is a perfect time to make them aware that a given book exists. Publishers know that ‘browse leads to buy.’ ” (Google says that it does not take a cut of sales made through its books site.)

Still, on October 19, 2005, several leading publishers, including Simon & Schuster, the Penguin Group, and McGraw Hill—all of which are partners in Google Book Search—filed a lawsuit against the company, seeking to stop the project. The publishers don’t object to Google’s plan for helping them sell new books, but they assert that the library component of the project is illegal. They claim that Google’s “massive, wholesale and systematic copying of entire books still protected by copyright” infringes on the publishers’ rights. They demand that Google stop further copying and “destroy all unauthorized copies made by Google through the Google Library Project of any copyrighted works.” (The Authors Guild filed its lawsuit around the same time.) The publishers, who have the support of the Association of American Publishers, are suffering from a version of the problem that John Kerry had in the last Presidential campaign: they are for Google Book Search at the same time that they are against it.
(snip)
The legal assertion at the core of Google’s business plan is its purported right to scan millions of copyrighted books without payment to or permission from the copyright owners. Approximately twenty per cent of all books are in the public domain; these include books that were never copyrighted, like government publications, and works whose copyrights have expired, like “Moby-Dick.” Google has simply copied such books and made them available on the Web. Roughly ten per cent of books are copyrighted and in print—that is, actively being sold by publishers. Many of these books are covered by Google’s arrangement with its publisher partners, which allows the company to scan and display parts of the works.

The vast majority of books belong to a third category: still protected by copyright, or of uncertain status, and out of print. These books are at the center of the conflict between Google and the publishers. Google is scanning these books in full but making only “snippets” (the company’s term) available on the Web. (Google searches turn up only the search term and about twenty words on either side of it.) Copyright law has never forbidden all “copying” of a protected work; scholars and journalists have long been allowed to quote portions of copyrighted material under the doctrine of fair use. Google maintains that the chunks of copyrighted material that it makes available on its books site are legal under fair use. “We really analogized book search to Web search, and we rely on fair use every day on Web search,” David C. Drummond, a senior vice-president at Google who is overseeing the response to the lawsuits, told me. “Web sites that we crawl are copyrighted. People expect their Web sites to be found, and Google searches find them. So, by scanning books, we give books the chance to be found, too.” (Google also has an “opt out” policy, which allows copyright holders to request that specific titles be omitted from the company’s database.)

However, according to the plaintiffs in the cases against Google, the act of copying the complete text amounts to an infringement, even if only portions are made available to users. “What they are doing, of course, is scanning literally millions of copyrighted books without permission,” Paul Aiken, the executive director of the Authors Guild, said. “Google is doing something that is likely to be very profitable for them, and they should pay for it. It’s not enough to say that it will help the sales of some books. If you make a movie of a book, that may spur sales, but that doesn’t mean you don’t license the books. Google should pay. We should be finding ways to increase the value of the stuff on the Internet, but Google is saying the value of the right to put books up there is zero.”

Google asserts that its use of the copyrighted books is “transformative,” that its database turns a book into essentially a new product. “A key part of the line between what’s fair use and what’s not is transformation,” Drummond said. “Yes, we’re making a copy when we digitize. But surely the ability to find something because a term appears in a book is not the same thing as reading the book. That’s why Google Books is a different product from the book itself.” In other words, Google says that being able to search books on its site—which it describes as the equivalent of a giant library card catalogue—is not the same as making the books themselves available. But the publishers cite another factor in fair-use analysis: the amount of the copyrighted work that is used in the creation of the new one. Google is copying entire books, which doesn’t sound “fair” to the plaintiff publishers and authors. “Traditional copyright analysis says that a transformation leads to the creation of a new and independent work, like a parody or a work of criticism,” Jane Ginsburg, a professor at Columbia Law School, said. “Copying the entire work, which is what Google is doing, does not preclude a finding of fair use, but it does fall outside the traditional paradigm.”
(snip)
The key legal question is whether the courts will allow Google to continue to scan copyrighted material without permission. But the schedule of the lawsuits may turn out to be as significant as the merits of the cases, which are before Judge John E. Sprizzo. In keeping with the stately pace of federal litigation, the depositions of witnesses are to begin sometime this year, and the parties will be allowed to file motions for summary judgment—in Google’s case, to dismiss the suits—in early 2008. Then there could be a trial. If the cases are appealed, they could linger well into the next decade.

However, most people involved in the dispute believe that a settlement is likely. “The suits that have been filed are a business negotiation that happens to be going on in the courts,” Marissa Mayer told me. “We think of it as a business negotiation that has a large legal-system component to it.” According to Pat Schroeder, the former congresswoman, who is the president of the Association of American Publishers, “This is basically a business deal. Let’s find a way to work this out. It can be done. Google can license these rights, go to the rights holder of these books, and make a deal.”

The terms of such a deal aren’t hard to imagine. The Authors Guild is concerned that pirated copies of the books on Google’s site could leak to the public, and so the organization would insist on security measures. (Sadly, for writers and publishers, demand for their products has never been robust enough to generate a major piracy problem.) As for distribution of the proceeds from the site, Google might agree to share revenue with publishers, in the way that radio stations pay for the music they play; publishers could receive a fee based on a statistical analysis of how often their books are viewed. Google could pay in cash or in kind, with advertising.

But a settlement that serves the parties’ interests does not necessarily benefit the public. “It’s clearly in both sides’ interest to settle,” Lawrence Lessig, a professor at Stanford Law School, said. “Businesses in Internet time can’t wait around for years for lawsuits to be resolved. Google wants to be able to get this done, and get permission to resume scanning copyrighted material at all the libraries. For the publishers, if Google gives them anything at all, it creates a practical precedent, if not a legal precedent, that no one has the right to scan this material without their consent. That’s a win for them. The problem is that even though a settlement would be good for Google and good for the publishers, it would be bad for everyone else.”
(snip)
Among Google’s potential competitors in the field of library digitization are members of the Open Content Alliance, which facilitates various scanning projects around the country and overseas. Funded largely by Microsoft and the Alfred P. Sloan Foundation, the O.C.A. has formed alliances with many companies and institutions, including the Boston Public Library, the American Museum of Natural History, and Johns Hopkins University. For the moment, though, the O.C.A.’s members are copying only material in the public domain (and works from copyright owners who have given explicit permission), which limits the scope of the projects substantially.

Google’s advantage may well be cemented if the company settles its lawsuits with the publishers and authors. “If Google says to the publishers, ‘We’ll pay,’ that means that everyone else who wants to get into this business will have to say, ‘We’ll pay,’ ” Lessig said. “The publishers will get more than the law entitles them to, because Google needs to get this case behind it. And the settlement will create a huge barrier for any new entrants in this field.”

In other words, a settlement could insulate Google from competitors, which would be especially troubling, because the company has already proved that when it comes to searches it is not infallible. “Google didn’t get video search right—YouTube did,” Tim Wu, a professor at Columbia Law School, said. (Google solved that problem by buying YouTube last year for $1.6 billion.) “Google didn’t get blog search right—technorati.com did,” Wu went on. “So maybe Google won’t get book search right. But if they settle the case with the publishers and create huge barriers to newcomers in the market there won’t be any competition. That’s the greatest danger here.”