Google Riches, Stanford Brains, Lawyers Fight to Widen Fair Use

The Project stands apart from others on the copyleft in its focus on intellectual property litigation, Falzone said. The Electronic Frontier Foundation (EFF) has broader interests, and other law-school technology centers handle few suits, which with discovery and other burdens can be very costly, he said. But thanks to pro bono help, the Project is “in the unique position of having the resources and the ability to litigate these cases start to finish.” The operation is welcome in the fight, said Fred von Lohmann, an EFF senior lawyer. Lessig is an “incredible magnet for fair- use stories,” and the Project will allow action on more of them, he said: “There’s no shortage of people who know intellectual property law. There’s always a shortage of people who can litigate them on the ground.”

But the Project doesn’t seek a court fight in every case. Falzone hopes the threat of litigation will deter copyright owners, “make them a little bit more circumspect in the enforcement of copyright claims,” he said. And a pilot effort aims to cut insurance costs for making documentary film by having volunteer lawyers relieve insurers of the risk of defending movies against legal claims. “I think that’s a fantastic idea,” von Lohmann said.

Fair use is crucial to consumer electronics, Internet and other companies, Falzone said. Given the impact of the iPod and iTunes, plus YouTube and new owner Google, “if you don’t think opening up new channels of creativity and content drives hardware and software sales, you're out of your mind,” he said.

The Project’s Web page says it “was founded… with a substantial donation from Google.” Its parent, the Stanford Center for Internet & Society (CIS), said in late Nov. that the company had promised it $2 million “to establish a balance between the right to access and use information and the ownership of information.”

The Project is Lessig’s baby, Falzone said: He “conceived it, created it and got it funded.” In his Wired magazine column and elsewhere, Lessig stood up last year for the Google Print service, now Google Book Search, against publishers’ copyright claims. Declaring that the company’s stand was in the interest of all companies helping to spread information online, he crossed swords with James DeLong, a senior fellow at the Progress & Freedom Foundation.

DeLong sees commercial interest and hypocrisy in Google’s financing the Project, he said. “Google’s business model is essentially dependent on lots of content and not paying for it,” he told us: “So Google’s increasingly at odds with content providers who are trying to protect this content and market it directly.” The company sees “a commonality of interest” with Lessig -- “a very important figure in academia, a rock star” -- who tries to turn the legitimate doctrine of fair use into a “lever” to undo legitimate copyright protections, DeLong said. He disputed what he calls Google’s position “that its interests and the public’s are automatically the same.”

Google is among many organizations that would benefit from the Project’s success, Falzone said. But the Project is not “directed by them, beholden to them” or guided by what the company “would want or like” it to do, he said: “We are going to take the important cases that change the law and benefit the public interest as a whole.” Google, the RIAA and the MPAA didn’t return calls seeking comment or declined to comment for this article.

Falzone wouldn’t discuss the Project’s budget in detail. “We have the money to do what we need,” he said: “We're not going to refuse a case because we don’t have the resources.”

Falzone is the Project’s only full-time employee but he has a good deal of help. At CIS, that includes Dir. Lessig, Exec. Dir. Jennifer Granick, Assoc. Dir. Lauren Gelman, fellows David Levine and David Olson -- both veteran intellectual property lawyers -- and students working at the Cyberlaw Clinic. The Project plans to hire a litigator as assistant director this academic year, Falzone said. He also calls in volunteer help from a network of law firm litigators across the country.

The Project’s mission is to “clarify, define and expand the principles of fair use,” Falzon said. That means “your right to borrow and utilize copyrighted material to create something new and transformative,” he said. Unlicensed file- sharing is illegal, wrong and professionally uninteresting to him, he said. “Unadorned replication in place of purchase -- that’s a very legitimate concern for any media company,” he said: “Fair use is not about piracy. It does not protect piracy. It was not designed to do so.” On the other hand, “once you get” a work lawfully, “what you can do with it -- that’s what we're focused on.” Those who argue otherwise -- or hijack news photos for online posting before photographers can sell them -- give fair use “a bad name,” he said.

In some areas -- notably music sampling -- the law on fair use “is at best confused and worst hostile” to creativity, said Falzone. This would call for federal legislation, except that labels’ and studios’ influence would bar positive change, he said: “The RIAA and the MPAA will be there with their best-dressed, most effective” lobbyists to block that.

The Fair Use Project worked with muckraking documentary director Robert Greenwald on his Iraq for Sale: The War Profiteers, Falzone said, but he wouldn’t discuss particulars. Defense contractor CACI has posted on the Internet exchanges with Lessig over the film, which CACI characterized as a “Deceitful Propaganda DVD.” The movie linked CACI with torture at Abu Ghraib, and it responded with trademark and defamation allegations. The Project also has done work in connection with a forthcoming high-profile work that uses music and video clips in treating hip-hop music and its “real-world effects,” Falzone said. He wouldn’t elaborate.

Falzone, 34, is a Harvard Law School graduate. Before starting at Stanford this school year, he was a litigation partner at Bingham McCutchen, a 950-lawyer firm that American Lawyer ranked 16th best in the U.S. this year. Falzone represented software companies including Electronic Arts and publishers such as Penguin Putnam and Chronicle Books. He didn’t join the Project out of longstanding desire for public-interest work, he said. “When the opportunity to litigate copyright cases with Larry Lessig came up, I just couldn’t say no,” Falzone said.

The Project has hit the ground running. It’s known mainly for filing a declaratory judgment suit against James Joyce’s estate to establish Stanford Prof. Carol Schloss’s right to quote, free, from copyrighted material. A hearing is set for Jan. 21 in U.S. Dist. Court, San Jose, on a dismissal request by the estate based on lack of jurisdiction, Falzone said. The Project is working with San Francisco’s Keker & Van Nest and Howard Rice Nemerovski Canady Falk & Rabkin.

The Project also has a summary judgment motion before U.S. Dist. Court, Manhattan, on behalf of musician Brian Transeaux, accused by Ralph Vargas of misappropriating a 5- sec. drumbeat, Falzone said. If that fails, a trial is set to start March 5. In that case, Falzone has help from Chicago-based Kirkland & Ellis. The international firm is donating not only lawyer time but also “substantial expert witness fees and stuff like that,” Falzone said. He said the case exemplifies music sampling as another Project priority. The Project also “may under the right circumstances want to do something about” what it sees as overreaching in state common-law copyright protection that goes beyond federal rights, Falzone said.

The Project is working with Chris Sprigman, U. Va. assoc. professor of law, to overturn 2 rulings. One rejected a claim by a U. of Colo. conductor and others that Congress unconstitutionally reapplied copyright protections wholesale to works that had gone into the public domain. Falzone expects a decision within months in the case, Golan v. Gonzales, by the 10th U.S. Appeals Court, Denver, he said. The other, argued before and awaiting decision by the 9th Circuit, San Francisco, is on behalf of Brewster Kahle, Internet Archive dir. and Alexa co-founder. It challenges provisions in the 1976 Copyright Act and follow-up laws giving works full copyright protection terms without the registration and renewal previously required.