Google Book Settlement Rejected – For Good Reason

Last week, Judge Denny Chin, sitting in the U.S. District Court, Southern District of New York, rejected the Google book settlement. He concluded that the settlement “is not fair, adequate, and reasonable.”  This post discusses how he came to that conclusion.

Background

Google began scanning library books in 2004.  Many of those books were still protected by copyright.  Google did not get permission from the copyright owners to copy the books.  In 2005, a group of authors and publishers brought the class action copyright infringement suit against Google that gave rise to the Google book settlement.  The parties filed a proposed settlement agreement on October 28, 2008, which was preliminarily approved on November 17, 2008.  That proposed settlement received hundreds of objections.  The Amended Settlement Agreement (ASA) just rejected by the court was filed for final approval on November 13, 2009.  It was preliminarily approved on November 19, 2009, and it, too, was met with hundreds of objections.  The court held a fairness hearing on February 18, 2010.

The ASA

The Class covered by the ASA includes all people who own a U.S. copyright interest in books or inserts (forwards, etc.) affected by a use authorized by the ASA.  Class members must affirmatively opt-out to be excluded from the settlement.  Under the ASA, Google was authorized to “(1) continue to digitize Books and Inserts, (2) sell subscriptions to an electronic Books database, (3) sell online access to individual Books, (4) sell advertising on pages from Books, and (5) make certain other prescribed uses.”  (Opinion, page 6).  Google would pay rightsholders a percentage of the revenues from these uses and from net revenues from sales and advertising.  A “Books Rights Registry” would administer the revenue distributions. 

The Registry would be required to locate rightsholders using “commercially reasonable efforts.”  Funds unclaimed after 5 years could be used to cover the expense of locating rightsholders of unclaimed works and after 10 years, unclaimed funds could go to literary-based charities.

Under the ASA, Google could not display in-print books without prior express authorization from the rightsholders.  Google could display out-of-print books without prior express authorization from the rightsholders, but would be required to stop if directed to by the rightsholders.  There are many nuances this brief description does not discuss.

The Court’s Opinion

The court’s opinion is organized around the kinds of objections received to the ASA.  These objections are:

  • Adequacy of Class Notice
  • Adequacy of Class Representation
  • Scope of Relief Under Rule 23
  • Copyright Concerns
  • Antitrust Concerns
  • Privacy Concerns
  • International Law Concerns

Judge Chin pointed out that the vast majority of the submissions filed commenting on the ASA objected to the ASA.  Around 6,800 class members opted out, which he thought was an extremely high number.  He thought the objections were great in number and some of the concerns significant.

A federal court cannot approve a class action settlement unless it is “fair, adequate, and reasonable, and not a product of collusion.” (Opinion, p. 14).  Judge Chin applied that standard in evaluating the objections to the ASA.

Adequacy of Class Notice.  Judge Chin thought the class received adequate notice.  Over 1.26 million individual notices were sent to potential class members worldwide, in thirty-six languages.  The Plaintiffs also maintained a website with information about the case.  In addition, there was a huge amount of publicity.  He thought it “hard to imagine that many class members were unaware of the lawsuit.”  (Opinion, page 19).

Adequacy of Class Representation.  Judge Chin concluded that “there is a substantial question as to the existence of antagonistic interests between named plaintiffs and certain members of the class.”  He thought the differences were troubling.

Scope of Relief Under Rule 23.  This part of the discussion refers to Federal Rules of Civil Procedure, Rule 23, governing class actions.  Judge Chin determined that the ASA contains two distinct parts.  The first part covers past conduct.  Google would be released from liability for past copyright infringement.  The second part covers future acts.  It would transfer certain rights to Google in exchange for future and ongoing arrangements and would release Google from liability for certain future acts.  Judge Chin found that the second part exceeds the scope of Rule 23.  The US DOJ argued that the ASA “is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court in this litigation.”  (Opinion, page 21).

Further, Judge Chin thought “the establishment of a mechanism for exploiting unclaimed books” should be addressed by Congress, not the courts.  He also reiterated that the class plaintiffs did not adequately represent the interests of some class members.  For example, the interests of academic authors and The Authors Guild authors are not aligned, as academic authors seek maximized access to knowledge and The Authors Guild authors seek maximized profits.

Judge Chin also indicated that the ASA is unlike other class actions settlements in which class members who have not been heard from release their claims for purported past grievances.  Under that ASA,

class members would be giving up certain property rights in their creative works, and they would be deemed– by their silence– to have granted to Google a license to future use of their copyrighted works.

(Opinion, page 30).

Copyright Concerns.  Judge Chin’s first point is that under the Copyright Clause of the U.S. Constitution (Article I, Section 8, clause 8), Congress was granted the power to address copyright issues presented by technology.  The courts were not granted that power.

Judge Chin’s second point is that the ASA opt-out provisions grant Google “the ability to expropriate the rights of copyright owners who have not agreed to transfer those rights” and that this may violate the Copyright Act, 17 USC §201(e).  Section 201(e) provides that government bodies, other officials, and organizations cannot seize exclusive rights under copyright when those rights have not been transferred voluntarily by the copyright owner.  The argument is that the ASA uses the court system to unlawfully seize these rights on Google’s behalf.  Judge Chin did not think it was necessary for him to rule on this point, although he is troubled by it. 

Judge Chin indicated that a copyright owner’s right to exclude others from using the work is beyond dispute.  A copyright owner has no obligation to exploit a work.  Under that ASA, absent class members who do not opt out of the class are “deemed to have released their rights even as to future infringing conduct.”  (Opinion, page 33).  Judge Chin stated

it is incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission.

(Opinion, page 35).

Antitrust Concerns.  The first concern is that Google would have a de facto monopoly over unclaimed works.  The second concern is that Google would have control over the search market.  Google would have the only complete commercial database of orphan works (works for which the copyright owner cannot be located), adding to its market power in online search.  

Privacy Concerns.  A privacy concern is that the ASA does not follow established law protecting reader privacy by limiting the disclosure of reader information.  Judge Chin thinks the privacy concerns are real, but does not consider them by themselves a reason to reject the ASA.

International Law Concerns.  Although Google argues that the settlement affects only U.S. copyright interests, it is in fact much broader than that.  The U.S. is a 1989 signatory to the Berne Convention, so that all books published in any Berne Convention signatory country after 1989 are protected by U.S. copyright law.  The ASA attempts to restrict its application to foreign books registered in Washington, D.C. or published in Canada, the United Kingdom or Australia on or before January 5, 2009.  Foreign rightsholders are still concerned, though, because many foreign books were registered in the U.S. before 1989 to ensure U.S. copyright protection.  Foreign rightsholders also object, arguing that the ASA would violate international law, such as the Berne Convention and WTO TRIPS (World Trade Organization Trade-Related Aspects of Intellectual Property Rights). Foreign authors also have trouble determining whether they are covered by the ASA, due to the unavailability online of Copyright Office records dated before 1978.  

Orphan works are a problem all over the world, not just in the U.S.  Foreign objectors point out that each country should address this problem and that a class action settlement in the U.S. is not the best way to solve a problem affecting global competition.  Judge Chin thinks the objections of foreign nationals and governments are another indication that Congress should be the one to act, not the courts.

Conclusion.  As indicated above, Judge Chin concluded “that the ASA is not fair, adequate, and reasonable.”  He went on to say that “many of the concerns raised in the objections would be ameliorated if the ASA were converted from an ‘opt-out’ settlement to an ‘opt-in’ settlement.”  (Opinion, page 46).  He urged the parties to consider revising the ASA along those lines.

Pip is Here!

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Pip is our new 8 week old Vizsla puppy!  We are very excited and happy to have Pip join our family!  We picked him up from his breeder on Saturday morning.  That gave Pip and us all day Saturday to adjust to each other and for Pip to investigate his new surroundings before bedtime.  We enjoyed several very fun and short training sessions, just 2 to 3 minutes each.  We taught come, sit and down, using kibble and liver food rewards.  Pip successfully performed each of these exercises, helping us feel successful, too.

We are raising Pip using Ian Dunbar’s approach outlined in Before & After Getting Your Puppy: The Positive Approach to Raising a Happy, Healthy & Well-Behaved Dog.  Dunbar advocates early puppy training and socialization.  He states in his book’s introduction:

All serious adult dog behavior, training, and temperament problems can be prevented quite easily with early socialization and lure/reward, puppy-friendly training techniques.

Dunbar’s message is that if people adequately trained and socialized their dogs as young puppies, there would be far fewer dogs turned over to shelters to be euthanized.

I could have done a better job socializing puppies I raised in the past.  They were all wonderful dogs, but did not achieve the NPD (Near Perfect Dog) status Dunbar aspires to in his book.  We want Pip to be an NPD.  We have great expectations for him on a number of fronts.

Dunbar recommends giving your puppy Kong toys stuffed with kibble to prevent him from becoming a destructive chewer and/or a compulsive barker.  Kong toys are rubber dog toys that come in a variety of shapes and sizes and can be stuffed with food.  We are starting with the Kong Stuff-a-Ball treat dispenser. It’s shaped a bit like a ball, except that it has straight sides with slits so that you can put kibble all around the outside of the ball.  The inside is hollow and can be stuffed with kibble.  We soften the kibble in water before stuffing the Kong toy with it.  Pip doesn’t play with the toy constantly, but is interested enough to eat the kibble off the outside and to work on getting out the food from the inside.  Odessa likes to help him by licking at the stuffed toy from the outside of Pip’s cage.

Pip is not allowed to run free in the house.  When we are not interacting with Pip and giving him 100% of our attention, he is inside a crate or a cage.  We have several crates or cages for him set up around the house.  All of our dogs have their own cages where they go when they come in from outside and where they sleep at night.  Pip sleeps in a crate in our bedroom at night for now, but will graduate to sleeping in the dog area, an area next to the kitchen, when he is housebroken. 

We are putting a lot of time and energy into Pip’s puppyhood education.  We know that some people would think what we are doing is not necessary and a waste of time, but we look forward to the day when Pip achieves NPD status.

Zediva DVD Streaming Service Infringing or Not?

Zediva recently captured the attention of copyright commentators with its new streaming movie service.  Zediva Streams New Releases Through Copyright Loophole, by Ryan Singel, captures the essence of what the service is about.  As soon as a movie is released on DVD, Zediva buys it, then rents it and a DVD player to you.  The DVD and DVD player remain in Zediva’s data center and the movie is streamed to you over the Internet so that you can see it on PC, Mac or Google TV devices with Adobe Flash.  You can’t download or copy the DVD – that’s a violation of Zediva’s Terms of Use.  The service is designed to allow movie watchers to see DVD releases sooner than they could on Nexflix, which has agreed not to rent out movies in the first month they are available on DVD.  According to Singel, Zediva doesn’t have any licensing agreements with the studios and does not intend to seek any.

Zediva’s FAQs draw analogies between its service and brick and mortar DVD rental stores. Perhaps Zediva’s founders and attorneys think Zediva’s service is noninfringing for the same reason a brick and mortar store’s service is noninfringing.  The first sale doctrine (17 USC §109)  allows the owner of a particular copy of a copyrighted work to sell or dispose of that particular copy without regard to the copyright owner.  That is why lending libraries and DVD rental stores are noninfringing uses of works.  Section 109 specifically excludes sound recordings and computer programs from the first sale doctrine and that is why you can’t rent a music CD or a computer program.  A software license can seem like a rental, but it is not.  You get a license because the copyright holder or someone authorized by the copyright holder grants you one.  With a rental, a third party rents something to you without the authorization of the copyright holder.

James Grimmelmann argues against Zediva’s success in That Zediva Thing? It’s So Not Going to Work. Grimmelmann makes the point that the first sale doctrine is a defense only to distribution and display rights and is irrelevant to a performance right claim.  The Copyright Act gives the copyright owner the right to perform the copyrighted work publicly.   

To perform or display a work “publicly” means —

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

17 USC §101 

Grimmelmann compares two cases, Columbia Pictures Industries v. Redd Horne  and Cartoon Network LP, LLLP v. CSC Holdings, Inc. In Redd Horne, a video store rented video tapes together with private viewing rooms where its customers could view the videos.  The court held that was a public performance that could be prohibited by movie studio copyright owners.  In Cartoon Network, Cablevision offered a “cloud” DVR service in which a customer could record a TV show to a remote DVR system and have it played back to her TV set later on.  The court in Cartoon Network held that this was not a public performance.

Grimmelmann explains that the distinguishing factor in the two cases is that in Cartoon Network, each customer viewed a distinct copy, whereas in Redd Horne, the video store owner kept showing the same copy over and over again to different people.  So long as the customer views her own distinct copy, it is not a public performance.  There is certainly support for this interpretation in the Copyright Act, in which members of the public can “receive it [the performance] in the same place or in separate places and at the same time or at different times.”  Grimmelmann also thinks it’s significant that Zediva keeps physical control of its DVDs at all times, just as the video store in Redd Horne kept physical control of the videos at all times.  The customers in Cartoon Network controlled their viewing times.  Netflix and video store customers physically control the DVDs they rent.

Can Zediva get around these distinct copy and viewing in different places at different times predicaments?  A unique feature of the Zediva service is that once a customer starts watching a movie, that particular DVD of the movie is not available for other customers to use.  Zediva buys its DVDs and does not copy them.  A Zediva customer has up to two weeks to finish watching her movie.  She can even watch the movie again during those two weeks.  If she wants to stop in the middle and continue the next day at the same place in the movie, she can.  Are these differences enough to take Zediva from the Redd Horne result to the Cartoon Network result?

Even if Zediva clears the above hurdles, lack of control over the end users could turn a streamed DVD into an unauthorized public performance of that DVD.  How will Zediva police its users so that they do not publicly perform the streamed movies by playing them on screens in places open to the public, such as bars or other retail establishments?  Zediva’s Terms & Conditions of Use indicate that “public performance of any kind” is not allowed, but does not define “public performance.”  That language seems inadequate for anyone trying to prevent unauthorized public performances.

Finally, could this be the same kind of streaming as the illegal streaming that was targeted by the Obama Administration’s white paper and was the subject of last week’s post?  No, it could not.  Criminal streaming under the Copyright Act requires that the infringement occur after the motion picture has been released and before “copies for sale to the general public in the United States in a format intended to permit viewing outside a motion picture exhibition facility” are made available.  17 USC §506(a)(3)(B). Zediva streams DVDs it purchases after the movie has been released on DVD.

“Illegal Streaming” a Felony? White House White Paper Directed at Activity that is Already Criminal

The White House recently issued a white paper on intellectual property enforcement legislative recommendations. I read the white paper after reading White House wants new copyright law crackdown, by Declan McCullagh. McCullagh states, “The White House today proposed sweeping revisions to U.S. copyright law, including making “illegal streaming” of audio or video a federal felony and allowing FBI agents to wiretap suspected infringers.”  I think a more accurate description is to say that the White House requests Congress to enact measures that increase the ability of the federal government to prosecute conduct that is already criminal and involves the use of intellectual property.

The white paper recommends changes in the following categories:

  • Increasing the statutory maximum sentences for crimes involving economic espionage and drug offenses under the Federal Food, Drug and Cosmetic Act (FFDCA), particularly for counterfeit drug offenses.
  • Increasing the range of U.S. Sentencing Guidelines for intellectual property offenses for crimes involving (1) the theft of trade secrets and economic espionage, (2) trademark and copyright offenses when infringing products are knowingly sold for use in national defense, national security, critical infrastructure, or by law enforcement, (3) intellectual property offenses committed by organized criminal enterprises/gangs, (4) intellectual property offenses that risk death or serious bodily injury and for offenses involving counterfeit drugs and (5) repeat intellectual property offenders.
  • Legislative changes to give enforcement agencies the tools they need to combat infringement by (1) clarifying that, in appropriate circumstances, infringement by streaming, or by means of other similar new technology, is a felony, (2) authorizing Homeland Security (DHS) to share pre-seizure information with rightholders and (3) giving law enforcement authority to seek a wiretap for criminal copyright and trademark offenses.
  • Legislative changes to allow DHS to share information about enforcement activities with rightholders and information about and samples of circumvention devices with rightholders post-seizure.
  • Legislative changes to improve U.S. enforcement efforts involving pharmaceuticals, including counterfeit drugs.
  • Legislative changes increasing U.S. Customs and Border Protection’s (CBP) authority to issue administrative penalties.
  • A legislative change to create a right of public performance for copyright owners for sound recordings transmitted by over-the-air broadcast stations.

The white paper discusses increasing sentences and enabling law enforcement to use newer technology tools than those currently authorized to detect conduct that is already a crime.  Regarding infringement by streaming, the white paper states:

Existing law provides felony penalties for willful copyright infringement, but felony penalties are predicated on the defendant either illegally reproducing or distributing the copyrighted work.  Questions have arisen about whether streaming constitutes the distribution of copyrighted works (and thereby is a felony) and/or performance of those works (and thereby is a not a felony). These questions have impaired the criminal enforcement of copyright laws.  To ensure that Federal copyright law keeps pace with infringers, and to ensure that DOJ and U.S. law enforcement agencies are able to effectively combat infringement involving new technology, the Administration recommends that Congress clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances.

Not all infringing streaming is a crime or “illegal streaming.”  Many people would say that the peer to peer streaming the U.S Supreme Court condemned in MGM v. Grokster  is “illegal streaming.”  That case, however, is about the extent to which the providers of software that could be used for non-infringing purposes could be held liable for the end users’ infringing uses.  Grokster was a civil copyright infringement case and there is no suggestion in the court’s opinion that MGM thought Grokster committed a crime.  The type of “illegal streaming” that is discussed in the white paper is streaming that is used by criminals to further their crimes. 

Presently, infringing downloading can be a criminal offense when it is willful.  17 USC §506.  An infringer acts “willfully” when she has knowledge that the act is infringing or recklessly disregards the possibility of infringement.  Subsection 506(a)(1)(C) provides that a person who willfully infringes a copyright commits a criminal infringement

by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

To that extent, “illegal streaming” is already a crime and can be a felony under 18 USC §2319(d) and 18 USC §3559(a). The white paper proposes to clarify when “illegal streaming” is a felony and when it is not.

The white paper does not advocate increasing copyright and trademark protection and enforcement across the board.  Instead, it distinguishes activity that is more commonly thought of as a less serious violation.  For example, with respect to enhancing the offense level for a defendant who knowingly sells infringing products for military or other critical uses,

The Administration also recommends adding an application note to the provision to ensure that sales that only indirectly impact national defense or security, law enforcement functions, or critical infrastructure are not swept into the provision. Thus, a sale of counterfeit semiconductors for use in a military system qualifies for the enhancement; the sale of a counterfeit toner cartridge for a computer printer used at military headquarters would ordinarily not.

The changes proposed in the white paper are not sweeping changes to copyright law, but rather more modest changes to aid law enforcement and to protect people from truly harmful intellectual property infringements such as occur with counterfeit drugs.

Betty Boop Court Misses the Trademark

Controversy surrounds the 9thCircuit’s ruling in the Betty Boop case (Fleischer v. A.V.E.L.A.).  I felt reluctant to do a post on this case because there are already some sagacious posts on this topic by highly respected commentators:  Betty Boop And The Return of Job’s Daughters by Marty SchwimmerWho Knows Who Owns Betty Boop by Pamela ChestekBetty Boop as a Material Girl by Rebecca Tushnet and An Opinion That Cries Out For A 9th Circuit En Banc Review…Betty Boop and The Tangled Character Copyright and Trademark Chain of Title  by Kate Spelman.  I decided to take the plunge after realizing that my take is different from what I have read so far and because it’s such an intriguing topic.

I have a question and a comment about this case:

Question:  Does the court believe that trademarks should be limited in duration, like copyrights?

Comment:  The Betty Boop plaintiff loses because of the court’s completely inapplicable analogy.  The court generalized from a case in which the trademark owner failed to timely assert its rights in its mark to this case in which the trademark owner did timely assert its rights. 

Here is a brief summary of the case.  The Betty Boop cartoon character was created by Max Fleischer in the 1930s.  He sold the rights to her cartoon and character around 1946.  The Fleischer family revived the Fleischer cartoon business in the early 1970s, repurchasing intellectual property rights to the Betty Boop character.  A.V.E.L.A., the defendant, started selling Betty Boop merchandise sometime after the Fleischer family began to bring the Betty Boop character back into circulation.  Fleischer sued A.V.E.L.A. for copyright and trademark infringement.

The district court dismissed the case on summary judgment.  The 9th Circuit affirmed.  The 9th Circuit’s ruling on the trademark part of the case creates the most controversy.  The circuit court determined that the parties’ arguments were moot and that the controlling precedent was its decision in International Order of Job’s Daughters v. Lindeburg, a case which neither party cited.

Job’s Daughters is an organization that used its name and emblem as trademarks.  Lindeburg manufactured jewelry with the Job’s Daughters emblem without a license.  Job’s Daughters sued for trademark infringement.  The 9thCircuit held that Lindeburg did not use the Job’s Daughters name and emblem as trademarks, that consumers purchased the jewelry for its design and did not purchase it because it was sponsored by the organization the emblem signified.  Jewelry with the Job’s Daughter’s emblem was available from many different unlicensed sources and consumers did not ordinarily purchase jewelry from only “official sources.”  In addition, Lindeburg manufactured unlicensed jewelry with the Job’s Daughters emblem between 1954 and 1975 before Job’s Daughters finally took action.  Job’s Daughters did not police its trademark when it should have, and when it did try to enforce its exclusive rights in the mark, it was too late.

The Betty Boop court applied its Job’s Daughters ruling to the Betty Boop facts and determined “that A.V.E.L.A. is not using Betty Boop as a trademark, but instead as a functional product.”

It is true in Job’s Daughters that the consumers bought the unlicensed jewelry as a functional product.  This resulted from the failure of the trademark owner to enforce the mark, not because of the intrinsic functionality of the jewelry.  The court in Job’s Daughters should have determined that the trademark owner did not enforce the mark and let it go at that.  Instead, the court created a bad precedent which it used in the Betty Boop case.

This language from the Betty Boop case is particularly interesting for rights holders of properties that are subject to both copyright and trademark protection:

If we ruled that A.V.E.L.A.’s depictions of Betty Boop infringed Fleischer’s trademarks, the Betty Boop character would essentially never enter the public domain.

This quote above is based on Dastar Corp. v. Twentieth Century Fox Film Corp. In Dastar, Fox neglected to renew its copyright on a television series it created under license and based on General Dwight D. Eisenhower’s book about the World War II allied campaign in Europe.  The television series entered the public domain.  Fox later acquired rights to Eisenhower’s book, including the exclusive right to distribute and sublicense the television series on video.  Dastar used footage from the television series to manufacture its own video set of the allied campaign, without attributing any of it to Fox.  Fox sued Dastar for copyright infringement.  Fox tacked on a Lanham Act §43(a) (a.k.a. §1125(a)) claim for “reverse passing off,” which is the infringer passing off the trademark owner’s goods as the infringer’s own goods.  Ordinary “passing off” is when the infringer passes off his goods as the trademark owner’s goods.  Fox could not overcome the failure to maintain the copyright and tried to rely on a claim for an unregistered trademark to save the day.  Fox tried to regain its copyright in the television series, which it allowed to slip into the public domain, by using a trademark theory and the court didn’t buy it.  Dastar is another case with a very narrow range of supportable application.

Different types of intellectual property offer different protections.  Properly maintained trademarks do not enter the public domain.  Whether the expiration of a copyright causes a property that is also protected by a trademark to enter the public domain is hotly debated. Does the court mean to suggest that long time trademarks such as IBM and Sears should someday enter the public domain?

The court also failed to acknowledge that Betty Boop is essentially a cartoon character.  Cartoon characters differ from other trademarks in that the product, the cartoon, is the same as the trademark, the cartoon.  Thus, it misses the point to look at the functional aspect of a product derived from the cartoon.  I posted a paper on this subject entitled Trademark Protection for Cartoon Characters on my website.

Odessa’s Career Change

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Dee, my partner, and I welcome Odessa into our fold!  Odessa began life as a Guide Dogs for the Blind puppy.  Dee and I are Guide Dogs volunteers.  Last spring, Dee decided she wanted to raise a Guide Dog puppy.  She picked Odessa up from the Guide Dogs puppy truck in Tacoma, Washington on March 7, 2010.  Odessa, a black Labrador Retriever, was just 10 weeks old and completely adorable!

Guide Dogs for the Blind does what its name says, provide seeing eye dogs for blind and visually impaired people.  The main campus is in San Rafael, California.  There is also a campus in Boring, Oregon.  The dogs live with volunteer raisers for up to 18 months before they return to either the San Rafael or Boring campus for formalized training.  The volunteer raisers socialize the puppies and teach them basic commands.  After they return to campus, the dogs learn to work in harness.  Sometimes the dogs are not chosen to return to campus and instead are placed in pet homes.  This is called a “career change.”

We raised Odessa in our home from March until late November 2010.  Odessa is very smart, but very energetic.  Her wild streak made her a challenge to raise.  In November, she was transferred to a more experienced puppy raiser in the hopes that the experienced raiser could better help Odessa with her training issues.

Dee is partial to black Labs.  Her favorite dog, Certs, was a Lab-Australian Shepherd Mix.  Dee got Certs when he was 8 weeks old.  Certs was Dee’s companion and kept the world safe for her until his death at 16 years old.  Dee and Odessa formed a special bond.  It was tough to let Odessa go, but she did belong to Guide Dogs and had a higher calling.  We both believed Odessa would make a great Guide Dog.

Dee was ecstatic when she received a call saying that Odessa would not continue in the Guide Dog program and would we like to have Odessa as our pet.  We are sorry that Odessa did not progress in the program, but we are very happy to have her as our pet.  Welcome home, Odessa!

EULA Awareness

A EULA is an End User License Agreement.  It is the agreement that you are supposed to read, but don’t, before you click “I agree,” so that you can download software onto your computer from the Internet.  People don’t like to read EULAs because they’re tedious, especially when you’re anxious to download and use your software.  Another reason people don’t like to read EULAs is that EULAs tend to be long and complicated.  Someone recently wanted to save time and money and asked me to use an Internet legal document service to draft a EULA.  I declined.  I didn’t feel comfortable using agreement language when I had no way of verifying the reliability of the source.

All license agreements are contracts.  Contracts can be known by different names, such as commercial real estate leases or software licenses.  A EULA is a particular type of software license.  Licenses allow a rights holder to let other people use those rights without giving up complete control of the rights.

Every license covers an imaginary universe of what that license is about and things included in it.  This is called the “scope.”  The scope includes at least seven essential aspects:

  1. subject matter;
  2. activities permitted;
  3. field of use;
  4. exclusivity;
  5. territory;
  6. time; and
  7. sublicensing.

(Source:  Kenneth L. Port, Jay Dratler, Jr., Faye M. Hammersley, Terence P. McElwee, Charles R. McManis, Barbara A. Wrigley, Licensing Intellectual Property in the Information Age, Second Edition, Carolina Academic Press, 2005, pp. 12-14.)

It takes time to thoroughly discuss these seven areas of contract scope with a software developer.  Using shortcuts like stock forms available on the Internet does not do away with the need to discuss this important information.

Do lawyers use forms or model agreements to draft contracts?  You bet.  It happens all of the time.  For me, the reliability of the source is an important consideration in deciding what contract language to use.  When I am drafting a technology contract, I like to start with The Tech Contracts Handbook, by David W. Tollen, ABA Publishing, 2010.  This book does an outstanding job of describing various contract clauses and when to use them.  It is also written in plain English.  Non-lawyers appreciate that, but lawyers appreciate it, too.  The Tech Contracts Handbook website contains downloadable form contracts that aren’t in the book.

Someone also told me that EULAs have been around for awhile and that it should be a simple matter to get one off of the Internet.  EULAs have probably been around for a couple of decades.  What about commercial real estate leases?  Those have been around for hundreds of years.  It seems unlikely that anyone involved in negotiating a commercial real estate lease would suggest that her attorney just download one from the Internet.

Stuart A. Heller, a Seattle area attorney who calls himself, “The Leasing Lawyer,” recently gave an excellent presentation to the Solo & Small Firm Section of the King County Bar Association.  His presentation was called “Six Keys to Successful Lease Negotiation from Tenant’s Viewpoint.”  One of his main points was that the lease terms that are important to the tenant must be individually negotiated so that the tenant gets what she wants and needs to successfully operate her business from the leased premises.  The same is true for EULAs.  Each EULA must be individually tailored to the software provider’s unique situation to ensure that the software provider’s intellectual property is adequately protected.  An improperly drafted EULA is unlikely to achieve its objectives and is a wasted effort.