Stanford Law 4020: Lawyering for Innovation (Fall 2017) | Tom Rubin | September 02, 2017


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Stanford Law 4020: Lawyering for Innovation (Fall 2017)

Original Creator: Tom Rubin Current Version: Tom Rubin Show/Hide
Strategic lawyering in the 21st century requires a combination of critical skillsets, including facility with technology, product design, partnerships, dispute resolution, and policy. No issue in the digital age has demonstrated this better than the history of and litigation surrounding Google Books. This seminar will focus on strategic lawyering at the cutting edge of innovation by closely studying, among other things, the history of Google Books and the evolution of copyright in the digital age. 

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  1. 1 Show/Hide More Week 1 (Sept. 27): Introduction & background
    Original Creator: Tom Rubin Current Version: Tom Rubin
    The digital age for content has been hastened by key technological developments, transformed by evolving consumption patterns and business models, and marked by antagonism between content owners and technology platforms. During the first class, we will drill down into the technology and digital content revolutions, review the impact of copyright policy, and discuss an overview of the Google Books case.
    1. 1.6 Show/Hide More Eldred v. Ashcroft , 537 U.S. 186 (2003)
      Original Creator: Tom Rubin Current Version: Tom Rubin
      Read the introduction/background and sections II and IV of Justice Ginsburg's opinion (paragraphs 8-16, 25-57, 65-68) and all of Justice Breyer's dissent (which starts at paragraph 119). Skim rest.
    2. 1.7 Show/Hide More Copyright Office, Report on Orphan Works (2006)
      Read letters in preface to report and pp. 1-20, 29-34, 41-44, 92-93.
  2. 2 Show/Hide More Week 2 (Oct. 4): The origins of the Google Books dispute | Digital ADR
    Original Creator: Tom Rubin Current Version: Tom Rubin

    Various factors – including lengthened copyright term, elimination of the registration requirement, and increased ability to access works – have led to stresses in the copyright system and opportunities for legal and technological innovation. Enter Google Books. We will examine the legal landscape that brought about the project, the agreements with libraries that made it possible, and the two resulting lawsuits that followed. [first half of class]

    Disputes between content owners and technology innovators have long played a central role in the development of copyright law and business models for content. Several of those battles, particularly in the digital age, have been resolved in nontraditional and creative ways outside the courtroom. We will look in particular at the resolution of lawsuits involving the digital audio tape (DAT) recorder and YouTube, which included both legal and extralegal solutions. [second half of class]

    1. 2.9 Show/Hide More Audio Home Recording Act
      Read sections 1001-1004, 1006, 1008. Skim rest of sections.
    2. 2.18 Show/Hide More YouTube Content ID Handbook
      Read slides 5-13, 24-27, 35-39, 48-49, 57-59, 66-67.
  3. 3 Show/Hide More Week 3 (Oct. 11): The settlement
    Original Creator: Tom Rubin Current Version: Tom Rubin
    The Google Books project promised to enliven moribund works, create massive utility, and depressurize the copyright system. Copyright owners disagreed and sued, but the parties soon turned to quietly crafting a sweeping, lasting, and amicable resolution that took the world by storm. We will study the process, structure, and terms of the complex settlement.
    1. 3.1 Show/Hide More Authors Guild v Google settlement agreement dated 10/28/08

      1. Whereas clauses
      2. Article I – Definitions (as you encounter terms in other provisions)
      3. Article II – Settlement Benefits (whole thing)
      4. Article III – Google Book Search (whole thing)
      5. Article IV – Economic Terms (4.1(a)(i), 4.1(a)(ii), 4.1(d), 4.2(a), 4.3(a), 4.3(b), 4.4, 4.5(a), 4.5(b)(vi), 4.7)
      6. Article V – Other Settlement Benefits (5.1, 5.2, 5.5)
      7. Article VI –Registry (6.1, 6.2(b), 6.3(a), 6.5)
      8. Article VII – Libraries (7.2(a), 7.2(b)(v), 7.2(b)(vi), 7.2(b)(vii), 7.2(d)(i), 7.2(d)(iii), 7.2(d)(vi-x))
      9. Article X – Releases (10.1(f), 10.2(b)(ii), 10.2(h))
      10. Article XVI – Right to Terminate Agreement
      11. Attachment M – Settlement Agreement between Publishers and Google

      Attachment A – Author / Publisher Procedures
      Attachment C – Plan of Allocation
      Attachment I – Notice of Class Action Settlement
      Attachment J – Summary Notice of Class Action Settlement

  4. 4 Show/Hide More Week 4 (Oct. 18): The opposition
    Original Creator: Tom Rubin Current Version: Tom Rubin
    Courts routinely rubberstamp class action settlements. The Google Books settlement was on a path to be no exception. How that changed is a study of interests and activism in the digital age. We will examine the rise of the opposition to the settlement and review key objections from governments, public interest organizations, rightsowners, competitors, and others.
  5. 5 Show/Hide More Week 5 (Oct. 25): The outcome & class certification
    Original Creator: Tom Rubin Current Version: Tom Rubin

    Nearly two and a half years after the settlement was filed, the court issued a decision rejecting it. We will study the lead up to Judge Chin’s decision rejecting the settlement, including a Congressional hearing and the fairness hearing, and closely analyze the court’s decision. [first half of class]

    The digital age offers the promise of democratizing creativity and providing creators with unprecedented opportunity to build audiences and distribute works how and where they see fit. The class action issues in the Google Books case highlighted the heterogeneous nature of creators today. We will look at the interests and arguments that led to class certification being granted by the district court and then overturned on appeal. [second half of class]

    1. 5.1 Show/Hide More Plaintiffs' Supplemental Memorandum Responding to Specific Objections
      Read pp. ii-v (table of contents) and any 20 pages of this or Google's brief (choose any topics of interest).
    2. 5.2 Show/Hide More Brief of Google Inc. in Support of Motion for Final Approval of Amended Settlement Agreement
      Read pp. i-ii (table of contents) and any 20 pages of this or plaintiffs' brief (choose any topics of interest).
    3. 5.3 Show/Hide More Transcript of Fairness Hearing, 2-18-10
      Skim pp. 14-21, 39-44, 131-137, 143-149, 158-165.
    4. 5.6 Show/Hide More Google's brief on appeal of class certification
      Read pp. 14-25 and skim pp. 36-39.
    5. 5.10 Show/Hide More The Authors Guild
      Review website, in particular “Where We Stand” (tab on top of page).
  6. 6 Show/Hide More Week 6 (Nov. 1): The evolution of fair use
    Original Creator: Tom Rubin Current Version: Tom Rubin
    Fair use has evolved and been transformed by the technologies and opportunities of the digital age. As a prelude to discussion of the fair use issues related to Google Books, we will study the development of the doctrine of transformative fair use.
    1. 6.7 Show/Hide More Perfect 10 v. Amazon & Google (9th Cir. 2007)
      Read Sections I and III.C (Fair Use). Skim Sections III.A (Display) and III.B (Distribution).
    2. 6.9 Show/Hide More Prof. Fisher video on fair use [STOP AT 29:05]
      Stop at 29:05, after Harper & Row discussion and before Campbell v. Acuff-Rose discussion
  7. 7 Show/Hide More Week 7 (Nov. 8): HathiTrust & Google Books
    Original Creator: Tom Rubin Current Version: Tom Rubin
    Nowhere have the boundaries of fair use in the digital age been fought more fiercely as in the case of books. We will closely examine the issues raised by Authors Guild’s litigations against Google and against HathiTrust, and their outcomes.
  8. 8 Show/Hide More Week 8 (Nov. 15): Policy & Products
    Original Creator: Tom Rubin Current Version: Tom Rubin
    Copyright law is a 20th (and, at times, 19th) century blueprint that is ill-suited to the design and opportunity of the 21st century digital world. Fixes are urgently needed, yet policy lags farther and farther behind. We will explore how businesses, organizations and rightsholders deal with these uncertainties, by studying developments related to copyright policy and product design. 
    1. 8.1 Show/Hide More News article, Report by the US Copyright Office on Orphan Works and Mass Digitization (6/24/15)
      Read this brief summary of the 2015 Copyright Office report. If interested in more detail, the full Copyright Office report is included below. Only pp. 76-82 are assigned (section covering fair use and voluntary agreements), but the report has a detailed table of contents if you want to read details about other issues.
    2. 8.2 Show/Hide More Copyright Office, Orphan Works and Mass Digitization Report (June 2015)
      Read pp. 76-82 (discussion of fair use and voluntary agreements). The report has a detailed table of contents if you want to read details about other issues.
  9. 9 Show/Hide More Week 9 (Nov. 29): Amazon & Apple
    Original Creator: Tom Rubin Current Version: Tom Rubin
    While the Google Books case was pending and Amazon’s market position was strengthening, Apple entered the ebooks market with the launch of the iPad in a way that drew the attention of regulators. We will review the ebooks antitrust case against Apple and publishers, how it originated, its outcome, and how it relates to the others issues and players in the publishing ecosystem, including Amazon. We will also examine the increasing competition concerns being raised against technology industry giants.
    1. 9.1 Show/Hide More The New Yorker, The E-Book Conspiracy Comes to a Close (7/11/13)
      This article provides background and a summary of the district court decision.
    2. 9.2 Show/Hide More United States v. Apple (2d Cir. 2015)
      The Second Circuit decision is long and contains a majority opinion, a concurrence and a dissent, so please follow these instructions carefully (or feel free to read the entire thing!):
      1. Read Judge Livingston's Introduction (pp. 4-10) and Factual Background (pp. 10-44).
      2. Skim Discussion (pp. 50-71).
      3. Read Market Entry (pp. 94-104), Judge Lohier's concurrence (two unnumbered pages), and Judge Jacobs' dissent (pp. 25-34).

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September 24, 2017

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Tom Rubin


Stanford Law School

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