November 2005

Google And The Digitization of The Planet's Books

by Lee Gesmer on November 27, 2005

Copyright.

    “Imagine the cultural impact of putting tens of millions of previously inaccessible [books] into one vast index, every word of which is search able by anyone, rich and poor, urban and rural, First World and Third, en tout langue — and all, of course, entirely for free.”

    Eric Schmidt, Google CEO
    “Mr Schmidt fails to mention that Google’s intent . . . is to make even more money. . . . Can it be so greedy that it seeks to bolster it profits by freely exploiting the rights of publishers and authors?”

    Patricia Schroeder, President, American Association of Publishers

The legal controversy over Google’s plan to use a proprietary high speed scanning process to copy (to start with) the entire book collections in the libraries at Michigan, Stanford, Oxford, the New York Public Library and Harvard, whether or not a particular book is under copyright, and to require copyright owners to notify Google if they wish to “opt out” of this program, has reached fever pitch.… Read the full article

Trademark. What do you do when someone sets up a web site almost identical to yours, but you can’t find the owner of the site in order to sue them?

This was the problem faced by American Girl , which sells wholesome girls dolls, clothing and books targeted at pre-adolescent girls, when it discovered that someone was publishing pornography on www.amercangirl.com. (Note the missing letter).

American Girl sued the registrar and “John Doe” (legalese for, “I’ll name you when I identify you”) but was rebuffed by a Federal District Court Judge in Wisconsin, who held that a John Doe suit was inappropriate in these circumstances. However, this judge really did his homework, and the decision is an excellent road map on how to go about obtaining an injunction under these circumstances, including remedies such as an in rem action against Verisign under the ACPA or arbitration under the UDRP. The decision also provides an excellent summary of the domain name system and the laws that regulate it.… Read the full article

It’s Hard to Fire the President . . .

by Lee Gesmer on November 20, 2005

Minority Shareholder/Fiduciary Duty.

. . . of your company, that is.

OK, here the facts, minus the legal jargon.

You’re a businessman with a successful company. You meet someone that wants to go into business with you in a related area. You start a new company, making sure that you hold a majority interest (52.5%). Your new “partner” gets 37.5%, and the rest of the stock goes to a couple of employees. Although your partner is a minority shareholder he’s running the business, so you make him president of the company.

Almost ten years go by, and although the company is making money you’re unhappy with your partner. He’s bad at finances, and tensions arise over bookkeeping and other business issues.

Eventually you reach your boiling point, and one morning you fire your minority partner.

Simple enough you think. After all, you own a majority of the company, what’s stopping you from doing this?… Read the full article

Dog Bites Man, Not News

by Lee Gesmer on November 15, 2005

[Update: this case was affirmed by the First Circuit in 2007; link here]

Massachusetts Lawyers Weekly reports, on the front page of its October 31, 2005 issue, that Federal District Court Judge Robert Keeton has dismissed, under the Communications Decency Act, claims that Lycos was responsible for third-party defamatory postings on Lycos’ Raging Bull website. The case is Universal Communications Systems, Inc. v. Lycos, Inc. Apparently there is no written decision from Judge Keeton.

The idea that a web site is not liable for defamatory postings is not, I repeat not, news. The Communications Decency Act provides:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Translation: A web hosting service that permits third parties to post on its site is not the publisher or speaker of that information, and therefore cannot be liable for defamation posted by the third party.… Read the full article