Google Books and Fair Use: A Tale of Two Copyrights?

On 14 November 2013, the US District Court of the Southern District of New York issued a major ruling in favour of the Google Books project, concluding that Google’s unauthorized scanning and indexing of millions of copyrighted books in the collections of participating libraries and subsequently making snippets of these works available online through the “Google Books” search tool qualifies as a fair use under section 107 USCA. After assuming that Google’s actions constitute a prima facie case of copyright infringement, Judge Chin examined the four factors in section 107 USCA and concluded in favour of fair use on the grounds that the project provides “significant public benefits,” that the unauthorized use of copyrighted works (a search tool of scanned full-text books) is “highly transformative” and that it does not supersede or supplant these works. The fair use defence also excluded Google’s liability for making copies of scanned books available to the libraries (as well as under secondary liability since library actions were also found to be protected by fair use): it is aimed at enhancing lawful uses of the digitized books by the libraries for the advancement of the arts and sciences. A previous ruling by the same court of 22 March 2011 had rejected a settlement agreement proposed by the parties, on the grounds that it was “not fair, adequate, and reasonable”. The Authors Guild has appealed the ruling.

Open Innovation: Legal Hurdles in the Creation of Contractual Arrangements Governing Idea Competitions?

The phenomenon of Open Innovation has been gaining prominence over the last decade. Idea competitions have been used in a variety of industrial sectors. Nevertheless, the legal issues raised by this topic have not been broadly addressed, yet. These arise from the adverse interests of the actors. The company which organizes an idea competition would usually like to have the opportunity to comprehensively use the solutions, ideas or products submitted by the competition entrants. For the company it is important to obtain all intellectual property rights in the idea, in the product created as a result and, thus, in the rights to be exploited in the future, in particular, patents, utility models, trademarks, copyrights and registered designs as well as other industrial property rights. The participant would like to participate to the greatest extent possible in the success of the submitted solution. This affects, firstly, the question of fair remuneration or further participation in any profits earned as well as, secondly, any personal rights such as being named as inventor or author. The article aims to show the contractual difficulties which have to be addressed tailoring theterms of an idea competition under German law.

A Qualitative Study on the Adoption of Copyright Assignment Agreements (CAA) and Copyright License Agreements (CLA) within Selected FOSS Projects

Open source software projects are multi-collaborative works incorporating the contributions of numerous developers who, in spite of publishing their code under a public license such as GPL, Apache or BSD, retain the copyright in their contributions. Having multiple copyright-owners can make the steering of a project difficult, if not impossible, as there is no ultimate authority able to take decisions relating to the maintenance and use of the project. This predicament can be remedied by centring the dispersed copyrights in a single authority via contributor agreements. Whether to introduce contributor agreements, and if so in which form, is a pressing question for many emerging, but also for established projects. The current paper provides an insight into the ethos of different projects and their reason for adopting or rejecting particular contributor agreements. It further examines the exact set-up of the contributor agreements used and concludes that smart drafting can blur the difference between CAAs and CLAs to a considerable extent, manoeuvring them into a legal grey area. To avoid costly litigation to test the legal enforceability of individual clauses, this paper proposes the establishment of an international committee comprised of developers, product managers and lawyers interested in finding a common terminology that may serve as a foundation for every contributor agreement