Larry Lessig: How law strangles creativity

Money’s value is at bottom dependent on our belief in its value, and art that illustrates this point is not counterfeiting

From Suite 101

Although the United States Treasury Department has very strict and serious laws about the counterfeiting of currency, there is one law that is above them that they seem to recognize and that is the artists freedom of expression.

J.S.G. Boggs (born Steve Litzner) is most famous for his hand drawn, one-sided United States bills that he then exchanges for goods and services just like real money. His drawings show the hand of a master draftsman so much so that he has been arrested for his counterfeiting in England and Australia. Boggs was acquitted in both cases on the grounds that he was creating art and not forging or counterfeiting currency and trying to pass it off as such.

But Boggs’ creations are as elusive as his philosophy about the art he creates. He does not consider the drawn bank notes as money and they are commonly referred to as Boggs Notes, Boggs Bills, and Boggs Dollars. Boggs considers the art part of his work when he exchanges the bills, receives change, and receipt and goods. He then is willing to sell the receipt, change and goods as the art, not the original bill. If a collector wants a hand drawn Boggs Bill they will have to track down the lucky recipient themselves.

While Boggs art work could be considered hard to collect and esoteric he is taken seriously by the art world. The proof? His work is in the collections of the British Museum, the Art Institute of Chicago, the Museum of Modern Art, and the Smithsonian Institution.

One of my favorite books on the “value” of money is Lawrence Wechsler’s Boggs: A Comedy of Values.

Sorry, but your political enemies can use your copyrighted works (as long as their use is fair use).

Many people believe that an artist’s rights in her work include the right to prevent the use of the work on behalf of causes and beliefs she does not believe in. That may be true in Europe; it is not true in the U.S., provided that the use the artist is trying to deny does not exploit the markets created by the original work. In other words, politicians with whom singers disagree may well have the right to use excerpts from those singers’ songs. And the producers of movies that advance views with which the singers take strong exception may not have any worry as long as they are using the songs they are using aren’t being used merely to attract an audience to the movie by use of the song.

Times Higher Education explains the difference between European and Anglo-American law:

The later European view of copyright regarded a published work as the author’s offspring as much as his property, endowing him with inalienable moral as well as tradeable commercial rights. The Anglo-American tradition in copyright, which is based firmly in the notion of property and income, resisted this concept.

Thus, in June, a federal court in New York City denied Yoko Ono’s request for an injunction against further showing and distribution of the movie Expelled, which, as I have previously written, criticizes evolution, promotes the teaching of intelligent design, and, in the process, uses 15 seconds of John Lennon’s song “Imagine.”

As I wrote when Ono’s lawsuit was first filed, If the filmmakers had tried merely “to capitalize on the film as soundtrack material that would be attractive to an audience would likely not be fair use, but, if, as seems likely, the song is quoted to criticize its atheism, that use would likely constitute fair use, regardless of whether Ono finds the users’ message objectionable.” The court, apparently, thought similar things (citations and footnotes omitted; hyperlink added):

Defendants’ use is transformative because the movie incorporates an excerpt of Imagine for purposes of criticism and commentary. The filmmakers selected two lines of the song that they believe envision a world without religion: “Nothing to kill or die for/ And no religion too.” (“Imagine” lyrics) As one of the producers of “Expelled” explains, the filmmakers paired these lyrics and the accompanying music to a sequence of images that “provide a layered criticism and commentary of the song.” The Cold War-era images of marching soldiers, followed by the image of Stalin, express the filmmakers’ view that the song’s secular utopian vision “cannot be maintained without realization in a politicized form” and that the form it will ultimately take is dictatorship. The movie thus uses the excerpt of “Imagine” to criticize what the filmmakers see as the naïveté of John Lennon’s views. The excerpt’s location within the movie supports defendants’ assertions. It appears immediately after several scenes of speakers criticizing the role of religion in public life. In his voiceover, Ben Stein then connects these sentiments to the song by stating that they are merely “a page out of John Lennon’s songbook.” In defendants’ view, “Imagine” is a secular anthem caught in a loop of history recycling the same arguments from years past through to the present. We remind our audience that the ideas they just heard expressed from modern interviews and clips that religion is bad are not and have been tried before with disastrous results.”  The filmmakers “purposefully positioned the clip . . . between interviews of those who suggest that the world would be better off without religion and an interview suggesting that religion’s commitment to transcendental values place limits on human behavior. . . . mak[ing] the point that societies that permit Darwinism to trump all other authorities, including religion, pose a greater threat to human values than religious belief.”

Defendants’ use of “Imagine” is similar to the use at issue in a recent decision of the United States Court of Appeals for the Second Circuit in which fair use was found, Blanch v. Koons. There, the visual artist Jeff Koons copied photographer Andrea Blanch’s photograph from a fashion magazine without permission and incorporated a portion of it into one of his paintings.  . . . As in Blanch, defendants here use a portion of “Imagine” as “fodder” for social commentary, altering it to further their distinct purpose. Just as Koons placed a portion of Blanch’s photograph against a new background, defendants here play the excerpt of the song over carefully selected archival footage that implicitly comments on the song’s lyrics. They also pair the excerpt of the song with the views of contemporary defenders of the theory of evolution and juxtapose it with an interview regarding the importance of transcendental values in public life. Plaintiffs contend that defendants’ use of “Imagine” is not transformative because defendants did not alter the song, but simply “cut and paste[d]” it into “Expelled.” As the foregoing discussion illustrates, however, this argument draws the transformative use inquiry too narrowly. To be transformative, it is not necessary that defendants alter the music or lyrics of the song. Indeed, defendants assert that the recognizability of “Imagine” is important to their use of it.  Defendants’ use is nonetheless transformative because they put the song to a different purpose, selected an excerpt containing the ideas they wished to critique, paired the music and lyrics with images that contrast with the song’s utopian expression, and placed the excerpt in the context of a debate regarding the role of religion in public life. Plaintiffs also contend that defendants’ use of “Imagine” is not transformative because it was unnecessary to use it in order to further the purposes defendants have articulated.

Determining whether a use is transformative, however, does not require courts to to decide whether it was strictly necessary that it be used. In Blanch, although certainly Koons did not need to use Blanch’s copyrighted photo, as opposed to some other image of a woman’s feet, in his painting, the Second Circuit did not suggest that this lack of necessity weighed against a finding of fair use. Similarly, in Bill Graham Archives, the Second Circuit found a transformative use in the defendants’ unauthorized inclusion of several of the plaintiff’s images-principally concert photos-in a coffee-table book about the musical group the Grateful Dead.  Although the defendants manifestly could have proceeded without the plaintiff’s , which constituted only a small part of the book, this posed no obstacle to a finding of fair use.

As I said, I think the use of “Imagine” by the filmmakers without permission is legitimate fair use. Nonetheless, Lennon, and “Imagine” in particular, are being misrepresented. Lennon’s song imagines a world unpolluted by religious sectarianism, not exactly a radical view in light of the issues of the day. But that’s not a view many can find tolerable, even in the U.S. of 2008, and they’ll resort to misrepresentation to support their intolerance.  One day after the decision against Ono, the Wall Street Journal ran a story with the headline The Case Against John Lennon.  The quote that highlights the column?

Nothing to live or die for — what a nightmare.

Mike Thomas points out that the line is “Nothing to kill or die for” and asks:

What is going on here? Why is the WSJ promoting a column with such a provacative title and using a misquote to mislead readers into a negative reaction against John Lennon? The column itself is a mess. It is poorly written, jumbled and fails to adequately explain how John Lennon or his song “Imagine” has anything to do with what the column appears to be about. Here is the pertinent section that mentions Lennon:

“Mr. Sharansky has a new book, titled Defending Identity. It would be equally accurate to call it The Case Against John Lennon. Or, more specifically, the case against ‘Imagine,’ Lennon’s anthem to a world with ‘no countries . . . nothing to kill or die for/And no religion too.’ For Mr. Sharansky, a nine-year resident of the Perm 35 prison camp, that’s a vision that smacks too much of the professed beliefs of the ex-Beatle’s near namesake, Vladimir Ilyich.’

What the hell? Does he think he’s being clever or something? Lennon sounds like Lenin. Get it? So obviously they must be related or they must think alike or something right? Nevermind that “Lenin” was actually an alias for Vladimir Illich Ulyanov, while the surname Lennon dates back hundreds of years to old Ireland.

No, they sound alike so there must be a connection. Right? Kind of like how Obama sounds like Osama so they must be related too. Yeah. That’s the level of reasoning that the column sinks to.

Absolutely pathetic.

And of course he never goes back and explains how V.I. Lenin’s brutal and dictatorial ways have any similarity or correlation to Lennon’s ode to world peace. But fortunately for the cretins who run the WSJ editorial pages, John Lennon is dead and can’t defend his classic work against their asinine columnist’s offhanded smear.

Here’s Ken Miller, a biologist from my alma mater speaking at Case Western Reserve University, from which I am currently on leave, speaking on intellligent design, evolution, and religion:

Art & Money, Part X

From the Guardian: “Lehman Brothers has won permission to release, and sell, $8m (£5.4m) worth of art that once adorned office walls at the bankrupt investment bank.”  Interestingly, “[f]ormer Lehman chief executive Richard Fuld and his wife Kathy put $20m worth of art up for sale at Christie’s in New York recently.” According to Bloomberg.com, the investment bank’s collection included “3,500 contemporary artworks that have been displayed in the investment bank’s offices around the world” It apparently also “inherited” 900 other works when it purchased purchased money manager Neuberger Berman in 2003. The investment bank’s collections have a long history, but in the end, for an investment bank the works of art were nothing more than very expensive decorations that will be sold at fire sale rates:

Art adviser Janice Oresman was hired to build up Lehman’s holdings in the late 1970s and early 1980s.

“Lehman was a pacesetter,” she said. Her acquisitions included a large Louise Nevelson sculpture and paintings by Wayne Thiebaud, along with contemporary prints by Jasper Johns and Frank Stella. Johns’s prints have sold recently at auction for as much as $50,000.

The Lehman family name itself has a collecting legacy. Renoirs and Rembrandts owned by Robert Lehman, grandson of the firm’s founder, are installed in the Robert Lehman wing at New York’s Metropolitan Museum of Art.

Neuberger founder Roy Neuberger bought art for his personal collection and installed it at the money manager’s offices. . . . Arthur Goldberg, an art collector and now-retired partner at Neuberger, was in charge of the company’s art purchases from 1990 to 1998. “They gave me a budget and let me buy what I wanted,” said Goldberg, who declined to speculate on the current value of Lehman’s collection. He bought works by Marlene Dumas and Damien Hirst before those artists were well known. This week, a Hirst sculpture of a calf immersed in formaldehyde sold for $18.6 million at Sotheby’s in London.

Neuberger’s corporate collection is fairly well known. A group of about 55 paintings, drawings and sculptures toured four museums, including the Henry Art Gallery in Seattle and the Tampa Museum of Art in Florida in 2003 and 2004. Works include a Jim Hodges spider-web-like sculpture and Candida Hofer photographs.

“My hope is that the collection will continue,” Goldberg said. “But my pragmatic feeling is that whoever acquires Neuberger and Lehman will look at the thing as an asset and not as art.”

Living the life of an artist or stealing? Coldplay faces the question once again

The Chicago Tribune reports: “A day after hauling in seven Grammy nominations, the members of Coldplay should’ve been celebrating. Instead they were served with a copyright infringement lawsuit Thursday that claims they ripped off guitarist Joe Satriani to write one of their biggest hits, ‘Viva La Vida.’”

And a comparison of the songs sure makes Satriani’s allegations credible:

There must be something about that song.  A band called Creaky Boards earlier this year accused Coldplay of stealing Viva La Vida from them:

As TechDirt subsequently reported, however, the leader of Creaky Boards later “not only retracted his accusation, but suggested that perhaps both bands were actually “inspired” by the “Fairy Theme” in the Legend of Zelda.”  TechDirt also made this, very important point:

. . . The thing is, part of the point we keep trying to make around here is that, for the most part, that’s true of just about everyone. It’s the overly aggressive use of copyright law that prevents that sort of “goodness” from showing up. Oh, and it’s also worth mentioning, that this little story has definitely increased the profile of The Creaky Boards — proving one of the points we recently made about plagiarism. Even if the plagiarist is “bigger” than you, the original creator can use that to their advantage aswell.

Plagiarism, even “unconsciously” done, has gotten musicians in trouble. In Three Boys Music v. Michael Bolton, a federal court of appeals upheld a jury award of $5.4 million against Michael Bolton and Sony (the record company associated with him) for “unconsciously” plagiarizing the Isley Brothers’ “Love is a Wonderful Thing.” As noted by the Columbia Law Library Music Plagiarism Project, the case is comparable to Bright Tunes Music v. Harrisongs Music, in which the court held that in his hit song “My Sweet Lord” George Harrison had “unconsciously misappropriated the musical essence of ‘He’s So Fine.’”

The decision against George Harrison has been heavily criticized.  It is important to note, though, that “plagiarism” involves issues entirely different than the ones (contentious themselves) involving sampling. Most importantly, it involves drawing those impossible lines between artistic influence, legitimate appropriation, and acts that are considered the equivalent of theft. Bob Dylan is without question one of the most important artists of our time, but, as John Pareles has written in “Plagiarism in Dylan, or a Cultural Collage?”

The absolutely original artist is an extremely rare and possibly imaginary creature, living in some isolated habitat where no previous works or traditions have left any impression. Like virtually every artist, Mr. Dylan carries on a continuing conversation with the past. He’s reacting to all that culture and history offer, not pretending they don’t exist. Admiration and iconoclasm, argument and extension, emulation and mockery – that’s how individual artists and the arts themselves evolve. It’s a process that is neatly summed up in Mr. Dylan’s album title ” `Love and Theft,’ ” which itself is a quotation from a book on minstrelsy by Eric Lott.

Hip-hop, ever in the vanguard, ran into problems in the mid-1980′s when the technique of sampling – copying and adapting a riff, a beat and sometimes a hook or a whole chorus to build a new track – was challenged by copyright holders demanding payment even for snippets. Although sampling was just a technological extension of the age-old process of learning through imitation, producers who use samples now pay up instead of trying to set precedents for fair use.

Check out the following.  Led Zeppelin was covering Kansas Joe McCoy and Memphis Minnie, but Dylan claims the authorship of and the copyright in his song.  Of course, the copyright in the first song had expired, so Dylan’s song is not an legally infringes nothing:

I have made it a point on this blog to point out that historically many “Writers, like other artisans, considered their task to lie in the reworking of traditional materials according to principles and techniques preserved and handed down to them in rhetoric and poetics – the collective wisdom of their craft.”  In short, there is nothing unusual about Dylan’s compositional methods.  That’s not to say that Coldplay isn’t in legal trouble as a result of Satriani’s lawsuit.  It’s to say that we’re in a cultural moment in which people are ready to find theft and “plagiarism” where there may not be any.  Is Coldplay making money that really belongs to Satriani?  Would Satriani’s song have gotten a greater audience had Coldplay’s never been released?

ADDENDUM, from Wired:

Joe Satriani accused Coldplay of plagiarism for lifting elements of his song “If I Could Fly” for its hit song “Viva La Vida” earlier this year.

Now, videos depicting  similarities between the songs are disappearing from YouTube courtesy of Coldplay’s label, EMI, which claims the videos infringe on its copyright. We found one that’s still online, which you can view to the right, for the time being.

You can still hear the Coldplay song elsewhere on YouTube, including in user-generated videos, so it seems likely that EMI is removing the comparison videos due to embarrassment on the part of Coldplay and/or legal ramifications for the ongoing Satriani suit, as Music Industry Blog posits. One imagines that a judge or jury would merely need to see one of these videos to conclude that there’s a striking similarity between the songs… probably too striking.

It’s conceivable that the Chris Martin lifted the beat, chords and melody from Satriani subconsciously. It’s not uncommon for musicians to hear something and regurgitate it later without realizing it. Coldplay has been accused of stealing someone’s music before — for the same song, no less. And another YouTube video has cast doubt on these claims by showing that all three bands could owe a debt to some guy called Günther.

We’re not so interested in the spat between Satriani and Martin; plagiarism accusations abound in the music world. What’s interesting here is that EMI appears to be using copyright as a way to remove one version of a Coldplay song while allowing other versions to remain online. It’s a useful reminder of the ways in which copyright law can be used for purposes other than thwarting the infringement of copyright. In this case, it’s a somewhat useful tool for downplaying plagiarism accusations directed at one of the world’s top acts.

Many labels have deals with YouTube that allow their works to appear in user-generated videos, because doing so can net them more of YouTube’s ad revenue (artists and labels sometimes can get paid when someone synchs their music to user-created video on YouTube). Apparently, these deals involve the ability to pull certain objectionable usages for reasons other than copyright, although the message that appears on YouTube — “This video is no longer available due to a copyright claim by EMI Music” — appears a bit disingenuous. If copyright were the issue, a YouTube search for “coldplay viva la vida” wouldn’t return 32,700 results.

Friday Night Music Club: Tom Paxton: One Million Lawyers

Donald Trump, Pop Star

Donald Trump has always been good for coming up with “creative” rationalizations for his failures and his apparent successes. His creativity has been the foundation of his career as a pop star. There has always been a serious question, however, whether he should be taken seriously as a business person. Trump’s real estate empire, begun on an already substantial fortune built by his father’s real estate exploits, has been for a considerable amount of time founded more on debt than on his own assets. But he continues to draw front page attention, as in today’s New York Times, which discusses a “lawsuit filed by Mr. Trump, the real estate developer, television personality and best-selling author, in an effort to avoid paying $40 million that he personally guaranteed on a construction loan that Deutsche Bank says is due and payable.” Mr. Trump argues that he is excused from his obligation to pay back the loan under a “force majeure” clause in the construction contract “that allows the borrower to delay completion of the building if construction is hampered by such things as riots, floods or strikes. That clause has a catch-all section covering ‘any other event or circumstance not within the reasonable control of the borrower.’”

“Would you consider the biggest depression we have had in this country since 1929 to be such an event? I would,” [Trump] said in an interview. “A depression is not within the control of the borrower.” ”

it is a ridiculous argument. Quite plainly an investor bears the risk of a downturn in the real estate market. And one could hardly deem the downturn in the real estate market unforeseeable. People have been claiming the real estate market was overheated for years. If Trump were to prevail, it should piss off every foreclosed homeowner in the country, few of whom were as well positioned as Trump to genuinely understand the risk of borrowing money that, in the event of a downturn in a market (an inevitable event), they would be unable to repay.

But Trump gets his lawsuit and his front page coverage in the New York Times. Just wait, though: sooner or later he’ll go into bankruptcy. Until now, he’s had so much borrowed money his lenders could not afford to let him go into bankruptcy — it was better to lend him more money and keep him in business than to risk losing what they would lose if Trump went into bankruptcy. But now the banks don’t have any more money to lend him. Stay tuned.

Is Wal-Mart a person? Kind of, but not really.

One of the odder and more influential innovations in law was the 19th Century “recognition” of corporations as “persons,” a notion that has begun to have a profound impact on our law in the last 30 years. That a corporation is a person is something you learn early in law school, and for the most part the notion is not a disturbing one. I teach contracts, and there seems nothing odd to me that corporations are parties to contracts and thus have rights and duties under those contracts.

That an abstract entity (albeit one with concrete assets) has the same legal status as you and I do becomes weird, however, when you start considering constitutional implications. How can a corporation have the right to free speech? Well, they argue they do, and the argument has profound implications, particularly in the area of campaign contributions. The principal argument against regulating campaign contributions is that doing so limits free speech. If one limits what a person can give to a candidate or a party, the argument goes, then one is limiting the extent to which that person can express his political beliefs. Limiting money, in other words, is limiting speech. But when speaks of limits on corporate contributions, you’re talking not only of limiting money, not speech, but of limiting money from something that isn’t really a person (but that, after all, only is expressing the views of people who have their own rights to free speech).

In an interview with BuzzFlash from 3 years ago, “Is Wal-Mart a Person?,” Thom Hartmann tells “why it is — kind of — but not really:

Nike asserted before the Supreme Court last year, as Sinclair Broadcasting did in a press release last month, that these corporations have First Amendment rights of free speech. Dow Chemical in a case it took to the Supreme Court asserted it has Fourth Amendment privacy rights and could refuse to allow the EPA to do surprise inspections of its facilities. J.C. Penney asserted before the Supreme Court that it had a Fourteenth Amendment right to be free from discrimination – the Fourteenth Amendment was passed to free the slaves after the Civil War – and that communities that were trying to keep out chain stores were practicing illegal discrimination. Tobacco and asbestos companies asserted that they had Fifth Amendment rights to keep secret what they knew about the dangers of their products. With the exception of the Nike case, all of these attempts to obtain human rights for corporations were successful, and now they wield this huge club against government that was meant to protect relatively helpless and fragile human beings.

Could Thomas Kinkade assert a property right over his “style”?

Frank Pasquale writes that the painter Thomas Kinkade may be positioning himself to be able to assert copyright or trademark claims over people who allegedly appropriate his style. There are several problem that would face Kinkade. First, it’s difficult to protect a “style” rather than a “work.” Second, Kinkade’s style has been described as something less than an original one: Kenneth Baker, critic for the San Francisco Chronicle, barely conceals his contempt: “‘He has a vocabulary, as most painters do. And it’s a vocabulary of formulas, unfortunately. And he shuffles the deck every so often. Lighthouse, cottage, sea, ships, sky, so on, so on. Little bit of waves, so on, rocks. And you end up with this.’” Kinkade’s own instructions on how to make a film in his style may not belie this criticism that his “style” is little more than a simple formula:

Whenever possible utilize sunset, sunrise, rainy days, mistiness — any transitory effect of nature that bespeaks luminous coloration or a sense of softness.

Emphasize gentle camera moves, slow dissolves, and still camera shots. A sense of gradual pacing. Even quick cut-away shots can slightly dissolve.

[Make] references to my anniversary date, the number 52, the number 82, and the number 5282 (for fun, notice how many times this appears in my major published works). Hidden N’s throughout — preferably thirty N’s, commemorating one N for each year since the events happened.

There’s no question, though, that a court would hold that copying a Kinkaid painting whole would constitute copyright infringement, (Doing so in small, electronic form for purposes of commentary and criticism, however, would constitute non-infringing fair use.) Even maps, as Pasquale points out, are protected by copyright against wholescale copying, even if the underlying information they compile is entirely factual. That’s why mapmakers used to put fictional locations in obscure places on their maps — people who copied such maps whole would be revealed by the use of the fictional place. But can a “style” be protected? That would be a difficult position to maintain, especially given the legitimate influence any successful artist will necessarily have. Nevertheless, Pasquale concludes, “It’s a tricky legal question as to what critical mass of stylistic detail in a Kinkade painting is enough to warrant copyright protection when another is inspired/corrupted by it. Or what remarkable idiosyncrasy should be trademarkable.”

Why did I call Google a (former?) “white knight”?

I wrote yesterday that some fear Google’s decision to settle the lawsuit over the Google library project heralds a new era, one in which Google will not be the rich uncle fighting the fights over copyright that others, who cannot afford being engaged in protracted lawsuits, will be unable to fight. The point deserves some further observations.

First, those who represent wealthy corporate interests typically decry the fact that in the U.S. both the party who brings the lawsuit (the plaintiff) and the party who is sued (the defendant) bears its own litigation costs, win or lose. This rule (the American Rule) is in contrast to the English Rule. In the U.K., the party who loses a lawsuit pays the costs of the winner’s lawyers. As a result, there are fewer cases brought by plaintiffs without resources. Corporate interests that advocate for “tort reform” don’t want individuals suing corporations as often as they currently do for things like personal injury and employment discrimination. If plaintiffs had to pay the costs of the defendants’ attorneys in those lawsuits when the plaintiffs lost, far fewer plaintiffs would in fact sue.

But in the copyright arena in these internet days, it generally is wealthy corporate interests that are threatening to sue or suing individual defendants. Because many of these defendants cannot afford to pay for lawyers to fight these threats, they back down. As a result, there is what is called “copyright overclaiming” – that is, copyright holders claim rights they don’t have, threaten legal action (or send DMCA takedown notices), and get what they want even though they are not entitled to it. Sometimes copyright holders can get help (from, for example, the Electronic Frontier Foundation), but in 999 cases out of 1000 they’re left to their own devices, and it usually makes far more sense to back down then to fight. Why pay for a lawyer to fight an expensive lawsuit when, if you lose, you’ll have to pay the far more expensive legal costs incurred by your adversary too?

That’s why, if Fred von Lohman is right and Google is no longer going to fight copyright battles it thinks should be fought on the merits (and not only for short term business advantage), it would be a real loss; it is, in short, why I called Google a “white knight” in the title of yesterday’s post.

Has the Copy-Left lost its white knight?

Google has been a very interesting company to anyone concerned with copyright law.  Google has taken on lawsuits raising issues others don’t have the resources to fight over, and Google has been very effective in making good arguments in those cases.  Fred von Lohman now wonders if those days are gone:

Late last month, Google announced a settlement in its lawsuit with book publishers and authors over its Google Book Search offering. . . .

The Book Search case is just one of a series of high-stakes lawsuits that Google has taken up in the name of the disruptive innovation that fuels the Internet economy. . . .

Google, assisted by its expensive, top-drawer legal team, has a track record of winning these precedent-setting Internet cases. And by winning, Google sets a precedent that other innovators can rely on, as well. In essence, Google’s legal investments have paid dividends for the entire Internet innovation economy.

Until now. By settling rather than taking the case all the way (many copyright experts thought Google had a good chance of winning), Google has solved its own copyright problem – but not anyone else’s. Without a legal precedent about the copyright status of book scanning, future innovators are left to defend their own copyright lawsuits. In essence, Google has left its former copyright adversaries to maul any competitors that want to follow its lead.