Back in 2005, I wrote that Google Print “may single-handedly keep the copyright-related blog world in business for the next few years.” Eight years later, the Southen District of New York decisively granted Google’s motion for summary judgment that the book scanning project is fair use. The Authors Guild v. Google (SDNY, Nov. 14, 2013)
The book search does not provide a competitive substitute for the actual book:

“An ‘attacker’ who tries to obtain an entire book by using a physical copy of the book to string together words appearing in successive passages would be able to obtain at best a patchwork of snippets that would be missing at least one snippet from every page and 10% of all pages.”

1. The Purpose and Character of the Use
Google use of the scanned books’ text to create a search index and display search result snippets is “highly transformative. Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books.”
While books are used to convey information, Google uses the text differently:

“Google Books thus uses words for a different purpose — it uses snippets of text to act as pointers directing users to a broad selection of books.
Similarly, Google Books is also transformative in the sense that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research. Words in books are being used in a way they have not been used before. Google Books has created something new in the use of book text — the frequency of words and trends in their usage provide substantive information.
Google Books does not supersede or supplant books because it is not a tool to be used to read books. Instead, it “adds value to the original” and allows for “the creation of new information, new aesthetics, new insights and understandings.” Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. at 1111. Hence, the use is transformative.

Even though Google is a commercial enterprise, it isn’t using the book scans in a commercial manner: “Here, Google does not sell the scans it has made of books for Google Books; it does not sell the snippets
that it displays; and it does not run ads on the About the Book pages that contain snippets. It does not engage in the direct commercialization of copyrighted works.”
Thus, the first factor “strongly favors” a finding of fair use.
Would the outcome here be different is Google ran ads against book content and searches? If it sold books through its own book store?
2. The Nature of Copyrighted Works
Books are the paradigmatic protectable copyrighted works — after all, copyright wouldn’t exist but for books. But works of fiction are entitled to greater protection than non-fiction books. Most of the books scanned by Google are non-fiction. Further, the scanned books are published and available to the public, which favors a finding of fair use.
3. Amount and Substantiality of the Portion Used
Google does scan the entirety of the works. However, full-text copying is required in order to be able to index and search the books. “Significantly, Google limits the amount of text it displays in in response to a search.” Because Google scans the entire works, the third factor weighs slightly against a finding of fair use.
4. Effect of Use Upon Potential Market or Value
Google’s book search does not replace or compete with actual books.

“Google does not sell its scans, and the scans do not replace the books. While partner libraries have the ability to download a scan of a book from their collections, they owned the books already — they provided the original book to Google to scan. Nor is it likely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book. Not only is that not possible as certain pages and snippets are blacklisted, the individual would have to have a copy of the book in his possession already to be able to piece the different snippets together in coherent fashion.
To the contrary, a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders. An important factor in the success of an individual title is whether it is discovered — whether potential readers learn of its existence. Google Books provides a way for authors’ works to become noticed, much like traditional in-store book displays. Indeed, both librarians and their patrons use Google Books to identify books to purchase.”

The fourth factor weighs strongly in favor of a finding of fair use.
Finally, Judge Chin rules, “Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.”
This is a decisive ruling that scanning book content for indexing, searching, and educational purposes is fair use.
Discussion and Commentary
Evan Brown, Information Law Group, What the Google Book Search Fair Use Decision Means For Innovators: “Google’s use of technology in this situation was disruptive. It challenged the expectation of copyright holders, who used copyright law to challenge that disruption. It bears noting that in the court’s analysis, it assumed that copyright infringement had taken place. But since fair use is an affirmative defense, it considered whether Google had carried its burden of showing that the circumstances warranted a finding that the use was fair. In this sense, fair use serves as a backstop against copyright ownership extremism. Under these particular circumstances — where Google demonstrated incredible innovation — that backstop provided room for the innovation to take root and grow. Technological innovators should be encouraged.”
Matthew Sag, Google Books held to be fair use: “Unless today’s decision is overruled by the Second Circuit or the Supreme Court — something I personally think is very unlikely –, it is now absolutely clear that technical acts of reproduction that facilitate purely non-expressive uses of copyrighted works such as books, manuscripts and webpages do not infringe United States copyright law. This means that copy-reliant technologies including plagiarism detection software, caching, search engines and data mining more generally now stand on solid legal ground in the United States. Copyright law in the majority of other nations does not provide the same kind of flexibility for new technology.”
Ali Sternburg, DisCo Project, Google Books Opinion is a Win for Fair Use and Permissionless Innovation: “One key takeaway from this case is validating that companies can invest resources into creating tools that benefit the public without seeking permission from gatekeepers, if their efforts are transformative, which can involve copying and digitizing entire works.”
Joe Mullin, Ars Technica, Google Books ruled legal in massive win for fair use “In the long term, the failure to settle may result in more scanning, not less. If Chin’s ruling stands on appeal, a clean fair-use ruling will make it easier for competitors to start businesses or projects based on scanning books—including companies that don’t have the resources, legal or otherwise, that Google has.”
Timothy B. Lee, The Washington Post, Google Books ruling is a huge victory for online innovation “If the ruling is upheld on appeal, it will represent a significant triumph for Google. More important, it would expand fair use rights, benefiting many other technology companies. Many innovative media technologies involve aggregating or indexing copyrighted content. Today’s ruling is the clearest statement yet that such projects fall on the right side of the fair use line.”
Adam L. Penenberg, The Google Books decision is good for authors and readers “Although the two litigants were the Authors Guild and Google, and the guild vows to appeal the decision, it doesn’t represent my views. I’m glad it lost. I don’t agree that Google robs authors of income, because the vast majority of us don’t make a cent off our books in the years after they are published. If Google is willing to take on the task of scanning each book and making them searchable, then setting up a way for people to be able to buy them right there and then, it should also get a cut of the action.”
Will Oremus, Slate, Google Books Ruling a Win for Fair Use … and Rich Tech Companies: “The trick, it seems, is to steal so aggressively and profit so much that by the time the lawsuits hit, you’re rich enough to fend them off.”
David Kravets, Wired, Google’s Book-Scanning Is Fair Use, Judge Rules in Landmark Copyright Case “Google’s massive book-scanning project that makes complete copies of books without an author’s permission is perfectly legal under U.S. copyright law, a federal judge ruled today, deciding an 8-year-old legal battle.”

At Time’s Techland Blog, Ben Bajarin writes:

Why We Want TV to Be Disrupted So Badly.

I was at the Consumer Electronics Show where [Tivo and ReplayTV] debuted, and their booths were as packed as any on the show floor. Both offered such a simple premise: pause, rewind and fast forward live TV. In my opinion, these two companies paved the way for the disruption we will eventually see. Why? Because they showed us how much better our TV experience could be, and how crappy the technology was that our current television providers provided us with.
I remember having discussions with executives at both TiVo and ReplayTV during their startup years. In particular, I remember a conversation with Anthony Wood, one of the founders of ReplayTV and the now founder and CEO of Roku. I asked Anthony why the current TV providers didn’t think of this first. His answer, plain and simple, was “because they are not technology companies.” So profoundly true. And the fact that they are not technology companies is the simple reason so many of us in the tech industry want TV to be disrupted. We know the technology and the experience can be so much better.

No. The reason that the existing TV companies weren’t thinking about innovating the TV experience is not because they are not technology companies (which they are), but simply because they don’t have to. The market to deliver television and broadband is not competitive. The major cable providers don’t compete with each other in the same market. Whether any particular household subscribes to television service through Comcast or Time Warner or Cablevision depends not on that household’s choice to pick one cable provider over another, but by the local monopoly franchise granted to a cable provider.
Cable companies are not competing with each other to win market share at the consumer level, but are competing with each other to win market share at the municipal level. They compete for the franchise right. So there’s no need to push forward with technology to make the viewing experience better — only to be generally competitive with other cable providers in other markets so as to prevent an overwhelming groundswell of desire to change.
If the cable companies competed directly for the same customers, the quality of the product and experience would be far more customer friendly.
In most regions, consumers have few other options for internet or television service than their local cable monopoly. DSL internet service from the phone company is no longer competitive with the speeds that cable modems can offer. Satellite television service requires installing a satellite dish and service can be disrupted by bad weather.
In New York City, Verizon is supposed to provide competitive broadband/video fiber optic service to all households by June 30, 2014, but many areas of the city still lack the access to the competitive fiber optic network. NYC Public Advocate (and mayoral candidate) Bill Diblasio notes Verizon is not yet serving many areas of New York with Fios. Outside of the Fios service area, Google is wiring cities with fiber optics, and an impressively ambitious internet and TV service, but its rollout is limited to Kansas City (and then coming to Provo, UT and Austin, TX.) Otherwise, no cable company has to deal with a truly competitive service provider. Arms-length competition, where providers simply need relative parity to each other, doesn’t force providers to innovate in the same way that they would with direct competition.
And since Tivo and ReplayTV launched more than a decade ago, the DVR market has become less innovative and competitive. In more than seven years since Tivo introduced its first HD device (the Series 3), the Tivo software interface still is not fully updated to HD — a substantial amount of the user interface in the latest Premiere DVRs has been carried over directly from the decade-old Series 2 design. In fact, for sharing recorded content around the house, many cable company solutions are better than Tivo.
ReplayTV was forced out of business through litigation over its automatic commercial skipping feature. Cable providers are competing successfully with Tivo not by offering DVR that is functionally competitive with Tivo’s offering, but by offering DVR service that works well enough for most viewers, is easier to install, and is a single fee with the cable bill.
If cable providers had to compete with each other for customers, the quality of the television viewing experience would be orders opt magnitude better than it is today. But fortunately, we are on the cusp of a period of rapid, transformative innovation in the television space.
Innovation is coming not because the cable television market is becoming any more competitive, but despite the best efforts of the cable companies to prevent consumer-friendly change.
Most broadband connections (largely through cable companies) are fast enough to stream HD-quality video reliably. Devices to stream internet content to an actual television are inexpensive and work reasonably well. Netflix, Amazon, iTunes, Hulu, HBO GO, ESPN, MLB, the NBA and the NHL all stream high-quality content to Roku and/or Apple TV that make it possible to replace cable television with on-demand access to a vast library of quality content and/or live sports. And although some cable providers do not authenticate their users for HBO GO access on Roku or AppleTV devices, the increasing quality and availability of streaming content is forcing cable companies to actually compete not just with one competitive cable box provider, but with the wealth of video programming on the entire internet. And so, to be competitive and keep customers spending on video programming, rather than just treating the cable company as a broadband provider, the cable companies have to offer the ability to time-shift or place-shift content, whether by video streaming to tablets, access to on-demand programming, or network-based DVRs.
The oft-maligned bundling of cable channels actually providers more value, at least in terms of the breadth of programming available, compared with ala carte internet video.
So, the problem isn’t that cable providers aren’t technology companies — that assertion is preposterous considering that cable providers are also the primary provider of home broadband in the US. The reason that the television industry is ripe for disruption is because the consumer market is non-competitive.

Apple’s Developer Site was hacked. All Things D reports; Apple Developer Center Was Hacked; Site Remains Down While Company Overhauls Security
In their notification, Apple notes that they are letting developers know about this attack “in the spirit of transparency.”
Without knowing more information about what information was obtained through the data breach incident, there are a number of scenarios where state laws would require that Apple notify its users that their personal information may have been accessed by an unauthorized third party.
In the US, each of the fifty states (as well as DC and Puerto Rico) has its own data breach notification law. Compliance is based not on the state in which an entity that stores personal information actually resides or stores that information, but, because we consider privacy to be a personal right, it is based on the home state of the person whose data is being stored.
Most states define personal information to include:

An individual’s first name or first initial and last name plus one or more of the following data elements: (i) Social Security number, (ii) driver’s license number or state- issued ID card number, (iii) account number, credit card number or debit card number combined with any security code, access code, PIN or password needed to access an account and generally applies to computerized data that includes personal information. Personal Information shall not include publicly available information that is lawfully made available to the general public from federal, state or local government records, or widely distributed media. In addition, Personal Information shall not include publicly available information that is lawfully made available to the general public from federal, state, or local government records.

But, some states have a broader definition of personal information than this. Some states require that the state is notified in case of a data breach that affects a certain number of residents. Some states offer a safe harbor from notification if personal information is encrypted and not access in an unencrypted format.
BakerHostetler has a straightforward and comprehensive summaries of data breach notification laws Data Breach Charts. With each of the states having a different requirement, Apple’s notice to its developers wasn’t solely in the spirit of transparency, but also in the spirit of legal compliance.
A security researcher claims to have accessed secure Apple data after filing a bug report to encourage Apple to fix the hole that he found. iMore reports Security researcher claims to have reported bugs shortly before Apple took down its developer portal. Whether or not the data was leaked by a white hat hacker instead of a black hat hacker, that doesn’t affect the fact that personal data was delivered to a third party, which requires the company storing the personal data to report it to the individuals, and depending on the number of people affected, also to certain states.
Last week, the House Energy & Commerce Committee Subcommittee on Commerce, Manufacturing, and Trade held hearings on whether a federal data breach notification statute is necessary. Subcommittee Explores State of Data Breaches in United States
Earlier this month, the California Attorney General released her report on data breaches affecting California residents in 2012, when 2.5 million Californians had personal information put at risk through an electronic data breach, but more than half of those citizens’ would have been protected if the companies storing their personal data better encrypted the data.