…At least for now. Judge Denny Chin of the U.S. District Court for the Southern District of New York issued an opinion denying Google’s motion to dismiss the suit and granting a motion to certify the class of plaintiffs. Google had been sued for copyright infringement for making complete, digital copies of books for the Google Books project. The copyrights are owned by authors and photographers who are members of the Authors Guild and the American Society of Media Photographers.
Google has scanned 12 million books and given digital copies to libraries while making the text available for search on Google Books.
Two previous attempts to settle the case had been unsuccessful when objections from some of the copyright holders and the Justice Department resulted in the court not approving the proposed settlements. When the settlements fell apart, Google filed a Motion to Dismiss the suit and the plaintiffs filed a Motion for Class Certification. The two motions are intertwined as Google’s motion attempted to dismiss the case because the associations don’t have standing to sue on behalf of their members, while the associations were trying have the judge approve class action status for “[a]ll persons residing in the United States who hold a United States copyright interest in one or more Books reproduced by Google as part of its Library Project….” The court dismissed Google’s motion, allowing the associations to remain as plaintiffs, and granted the motion to certify the class.
Two things that are interesting are that this will simplify the case going forward and judge Chin does not appear sympathetic to a “fair use” defense by Google.
The case will be simplified because the associations will be able to act on behalf of their members. This means the individual association members will not need to directly participate. The creation of a class action will also simplify things, eventually. The certification of the class, while opposed by Google, may actually make an eventual settlement easier to administer. Imagine the letters you’ve received offering to pay you a portion of a class action settlement being sent to the all the copyright holders.
Judge Chin also appears less than sympathetic to a potential “fair use” defense by Google. To allow the associations to have standing, the participation of the individual members must not be critical. Google asserted that a “fair use” defense would require each copyright holder to participate to determine if the copying was allowable. On its face, the argument makes sense because many of the points of analysis of “fair use” require a review of the nature of the copyrighted work. Judge Chin, however, dismissed the argument noting “the sweeping and undiscriminating nature of Google’s unauthorized copying….”
Given that Google is now faced with a plaintiff class including all affected copyright holders in the United States, and a strong indication from Judge Chin that a “fair use” defense is a nonstarter, a new round of settlement negotiations may be around the corner. Of course, Judge Chin’s opinion can be appealed to the Court of Appeals for the Second Circuit.
There have been a lot of blog posts and articles about Pinterest and how copyright claims may affect its future. I agree with the sentiment that Pinterest’s opt-out system is a clumsy response to the situation, but their phenomenal growth to this point may be their saving grace. I wrote a bit about the dust-up last week between Pinterest and content providers
If Pinterest had a fraction of the users that it has now, some copyright holders may have already tried to shut it down. By utilizing the DMCA safe harbor, Pinterest has been able to operate and expand to the point that many copyright holders are seeing the advantage of such a wide reaching platform.
To take advantage of this situation, Pinterest may need to make some changes. After they talked with Kristen Kowaiski, it sounds like Pinterest may be making some changes after all. Here are a couple of things I see:
- By its terms of service, Pinterest asserts the right to copy and even sell whatever a person pins on a board. Even if it’s a right never exercised by Pintererest, the specter of such a term will have a chilling effect on participation by those who want to pin their own work.
- The opt-out plan is not workable. An opt-in system would be much better for the web ecosystem in general and show greater respect for the copyrights of creative publishers. Granted, if Pinterest was just starting, it would never get the traction for people to opt-in. Now, though, with the number or users and all the buzz, the incentives are there for the people Pinterest would likely want to opt-in to do so (potential advertisers and content providers).
There is speculation about how Pinterest will make money, and I have some guesses as well. Pinterest’s appearance could be adversely affected by the inclusion of ads unless they are very subtle. That would be particularly problematic since so much of the buzz has been about how Pinterest is revolutionizing page design.
The real potential is in data mining the interests of its users based on their pins and predicting other interest based on them. This can allow for targeted advertising, not just on Pinterest’s site, but on third party sales sites. Imagine going to Amazon.com and seeing ads for things related to what you have pinned on your board, or that people similar to you have pinned.
Facebook does things like this, but I think “pinning” could provide an even better indication of what a user might spend their money on than “liking.” To reach this potential, Pinterest has to avoid scaring off content providers and users. Time will tell if they can.
Pinterest has a remarkable story. They’ve grown faster than even they could have hoped and now have millions of users “pinning” their favorite things from the web onto the users’ boards.
Of course, some brands love the grassroots advertising this provides, and many content providers appreciate the exposure. In many cases Pinterest and other social media sites are driving more traffic to sites than search engines. That is all well and good until someone doesn’t want their content copied and pinned.
Enter Pinterest and its response to the Digital Millennium Copyright Act. The DMCA can make ISPs and online publishers liable for copyright infringement by their users, unless they take certain actions to fall within the safe harbor provisions. Pinterest does this and even blogged about it this week.
I think Pinterest’s strategy of providing code for a meta tag that will prevent pinning of content from a page having that tag (an opt-out) is a bit short sighted. But what I really found interesting were the comments from the content providers.
Now excuse me while I go find a plugin for WordPress so this post can be pinned.