Sunday, April 25, 2010

Judge Presiding Over Google Settlement Moves Up; Publishers Weekly, 4/22/10

Andrew Albanese, Publishers Weekly; Judge Presiding Over Google Settlement Moves Up:

"In yet another twist in the Google Books Settlement, the judge presiding over the deal's approval, Denny Chin, was confirmed by the Senate for a seat on the Second Circuit Court of Appeal, 98-0. Although it is unclear exactly how Chin's promotion might affect the Google Settlement, four immediate questions stand out:

First, does the appointment mean a settlement decision is coming sooner, rather than later? With Chin to take his seat as soon as possible, he will certainly want to expedite his current caseload as much as possible. On the other hand, Chin may choose to pass the case on to another judge entirely, which could delay a ruling. On his blog, Scrivener's Error, attorney C.E. Petit thinks Chin will likely pass along the Goolge ruling. "If Judge Chin isn't pretty well already done writing his opinion(s)," Petit summarized, "everything that is currently live in GBS is almost certainly going to be decided by somebody else."

Second, looking ahead, how might Chin's appointment affect the settlement's appeal process? Many suspect that whatever Chin's ruling, it will be appealed to the Second Circuit-the very Court Chin has just been appointed to. Chin will certainly have to recuse himself from the appeal.

Third, the recently-launched visual artists' suit against Google will be impacted. Chin was assigned to that case as well, and a new judge will now be appointed. Given Chin's familiarity with the settlement, there will be some affect on the judicial economy of that suit. The suit, which seeks "monetary, injunctive, and declaratory relief," was filed after Chin denied a request by the artists to join authors and publishers' $125 million class action settlement as a party.

And fourth, could Chin could now be involved in the Muchnick v. Reed Elsevier appeal? That case was recently remanded to the Second Circuit by the Supreme Court. It could be fascinating to see how Chin's thinking on the Google settlement manifests itself in that ruling, or, if he recuses himself from that case, citing similarity. Muchnick v. Reed Elsevier stems from the long-running Tasini v. New York Times case, the settlement of which includes a license-by-default much like the one at issue in the Google settlement. "I believe that, from a practical standpoint, the root issues in [Google and Tasini] are identical," lead objector Irv Muchnick told PW in April, "and that they should be coordinated in some fashion."

While the publishing world knows Chin to be the man deciding the fate of the Google settlement, he is probably better known to the world-and the Senate-as the man who put Ponzi-schemer Bernie Madoff away. In addition, Chin, born in Hong Kong, is now the only active Asian-American judge on a federal appeals court. Chin's appointment had been held up by anonymous holds in the Senate. The Second Circuit Court is based in New York City, and most recently saw one its own, Sonia Sotomayor, rise to the Supreme Court."

GBS: Chin Is In; James Grimmelmann's Laboratorium Blog, 4/22/10

James Grimmelmann's Laboratorium Blog; GBS: Chin Is In:

"Denny Chin was unanimously confirmed by the Senate this morning for a seat on the United States Court of Appeals for the Second Circuit. Congratulations to Judge Chin.

I don’t know what this means for the Google Books case, and would rather just wait to see than speculate."

Tech Companies Fear Implications of Trade Pact; New York Times, 4/20/10

Associated Press via New York Times; Tech Companies Fear Implications of Trade Pact:

"Companies across the technology industry -- from Internet access providers to social networking sites to video-sharing services -- are bracing for this week's release of a draft of a trade agreement that they fear could undermine all sorts of online activities.

The agreement, being negotiated by the United States and nearly a dozen trading partners, is intended to create an international framework to crack down on counterfeiting, copyright violations and other intellectual property theft. But skeptics warn that it could chill free speech and other online expression by making technology companies liable for the misdeeds of their users.

''If online platforms themselves are held liable in a way that is overly broad, the platforms themselves will start screening and censoring or scaling back how open to user participation they are,'' said David Sohn, senior policy counsel for the Center for Democracy & Technology, an interest group that advocates for civil liberties online. ''They will have to exercise really tight control.''

The Bush administration began negotiating the Anti-Counterfeiting Trade Agreement, or ACTA, in the fall of 2007 in an effort to harmonize intellectual property protections across different nations. The far-reaching agreement would encompass everything from counterfeit pharmaceuticals to fake Prada bags to online piracy of music and movies. Once ratified, trade agreements take full effect and a country can face complaints for noncompliance.

Since early on, the talks have been mired in controversy. For one thing, countries that are considered the biggest sources of intellectual property theft -- such as China and Indonesia -- are not participating. Nations taking part include the European Union member states, Japan, Korea, Canada, Mexico, Morocco, New Zealand, Singapore, Switzerland and Australia.

The negotiations have been held behind closed doors, with no opportunity for public comment or outside input. Earlier versions of the trade agreement have been leaked, but the first official draft won't be released until Wednesday -- even though last week's talks in New Zealand marked the eighth round of negotiations. The next round will take place in Switzerland in June.

Michael Geist, a law professor at the University of Ottawa who specializes in Internet and electronic commerce issues, argues that because the agreement could reshape intellectual property laws in so many countries, the proper forum for such negotiations is the World Intellectual Property Organization. WIPO negotiations are more open to public scrutiny and include countries where much of the counterfeiting takes place, he noted.

''Anyone in a democratic country should be uncomfortable when governments go behind closed doors to negotiate an agreement that will ultimately have a significant impact on domestic law,'' Geist said.

Many technology companies fear that ACTA could undermine existing legal precedent and intellectual property laws in the United States, including the landmark 1998 Digital Millennium Copyright Act. The current U.S. legal framework includes important protections for Internet service providers and other technology companies when their users are accused of copyright infringement. Although current law requires companies to remove infringing content, it limits their liability.

Most big technology companies are hesitant to comment on the record about ACTA until they see an official draft, but privately they say that immunity is critical not just for Internet service providers such as AT&T Inc. and Verizon Communications Inc., but also for any online company that hosts user-generated content. That includes social networking sites such as Facebook, video-sharing sites such as Google Inc.'s YouTube and even the online encyclopedia Wikipedia.

The darkest fear of the technology companies is that ACTA contains provisions that would require them to cut off access to users who violate copyright protections and possibly would hold the companies liable for violations.

The dangers of such ''secondary liability'' were underscored by a recent court ruling in Italy, which held three Google executives criminally responsible for hosting an online video of an autistic teenager being bullied, said Sohn of the Center for Democracy & Technology.

Sohn also said he worries that the trade agreement will exclude another ''safeguard'' in U.S. law -- the ''fair use'' doctrine, which allows limited use of copyright-protected material for commentary, criticism, research, teaching and news reporting.

''While this is being characterized as an anti-counterfeiting agreement, it is really a copyright deal with rules that will affect the daily lives of millions of people both online and in the digital realm,'' Geist said.

ACTA skeptics aren't only worried that it will bring more-restrictive rules to the U.S. Sherwin Siy, deputy legal director for Public Knowledge, another public interest group, fears that ACTA could also export strict, punitive copyright enforcement measures that exist in U.S. law to other countries. That could include high statutory damage awards, he said.

To be sure, ACTA has plenty of defenders. In November, a long list of media companies and trade groups, including the Motion Picture Association of America and the Recording Industry Association of America, sent a letter to Congress expressing support for the agreement.

ACTA, they wrote, has the potential to ''preserve high value American jobs, and create new ones'' and ''buttress our country's leading position in the creation, publishing and distribution of software, video games, films, music, books, television programs, journals, visual materials and other works protected by copyright.''

The office of the U.S. Trade Representative, which is negotiating ACTA on behalf of the U.S., said in a statement that it is working to implement ''President Obama's commitment to aggressively protect American intellectual property overseas'' and is ''respecting the balance struck by the U.S. Congress on these issues.''

The trade representative added that secondary liability for copyright infringement already exists in U.S. and foreign laws. ACTA, it hopes, would ''protect Internet intermediaries from secondary liability if they play by the rules.''"

India Introduces Draft Copyright Amendments; Some Good, Some Bad; TechDirt, 4/23/10

Mike Masnick, TechDirt; India Introduces Draft Copyright Amendments; Some Good, Some Bad:

"Michael Geist points our attention to the news that India has introduced a draft of proposed amendments to its copyright law, in an attempt to bring India's copyright laws into alignment with those ever popular "international obligations" found in various (industry dominated) treaties. There were reports late last year that the proposals were likely to be draconian, as the negotiations had mainly been between the government and the recording industry with no input from the public. However, the actual proposal (pdf) is much more of a mixed bag -- with lots of somewhat surprisingly good things included.

For example, it extends the concept of "fair dealing" to cover "private and personal use" and makes sure that anti-circumvention rules only apply when the circumvention is used to infringe on copyrights. The US anti-circumvention clause in the DMCA makes no such distinction (so even if you circumvent copy protection for a perfectly legal reason -- such as to make a personal backup -- it's still infringement just to circumvent). Also, the new proposal would allow more access to copyrighted works by "physically challenged persons." However, it appears that some feel that those provisions don't go far enough. It allows for the conversion of copyrighted works into Braille without having to pay a fee, but many visually impaired point out that it does not cover converting the works to audio formats with e-reading software or audiobooks. Some political parties are threatening to boycott the proposal if this part isn't fixed.

The part of the bill that's getting the most attention in India is that it would create an additional right for content creators, which they would hold onto, rather than having the right transferred over to the producers and record labels. In other words, it seeks to make sure that the actual content creators don't have their rights stripped from them by the industry. Not surprisingly, the record labels are up in arms about this, and find the whole thing to be terribly unfair. In their defense, it is a bit strange to set up a copyright where the rights are not transferable, even if the purpose is really to give more power to the content creators themselves.

That controversial clause does seem like a mixed bag itself. Decreasing the control the industry has over actual content creators is a good thing, but I'm not sure layering on another "right" is the way to do it. There are some other questionable aspects of the bill as well -- including (of course) extending the length of copyright, in some cases, for no good reason. It also sets up new statutory compulsory rights. While those sometimes are useful in clearing up confusion, it creates a totally arbitrary system for setting payment rates, rather than letting the market figure it out.

Overall, it sounds like this is better than many of the proposed copyright law changes out there -- and I'm sure that the entertainment industry, who had been pushing for India to put potential infringers in jail, won't like this one bit -- but it's not that great either."

Climatologist sues, wants paper to erase all traces of libel; Ars Technica, 4/25/10

John Timmer, Ars Technica; Climatologist sues, wants paper to erase all traces of libel:

"It's probably an unfortunate measure of the quality of modern journalism that few of us would be surprised to hear that an editorial on a politically controversial topic contained significant factual inaccuracies. But climate change seems to have reached the point where even some apparent facts have become points of contention, and at least some reporters have become comfortable with simply making things up and ascribing their imaginings to credible scientific sources. Apparently fed up with similar practices in editorials produced by Canada's National Post, a climatologist has now sued the publisher for libel and defamation. But the suit seeks a judgement that's remarkably sweeping: the scientist wants the publisher to hand over the copyright to the editorials so he can attempt to erase them from the Internet."

Friday, April 16, 2010

GAO piracy report: A deeper look; CNet News, 4/13/10

Greg Sandoval, CNet News; GAO piracy report: A deeper look:

"Copyright owners are in need of some good researchers.

I've already written a news story about the report on piracy and counterfeiting issued Monday by the U.S. Government Accountability Office (GAO) that called into question some of the assertions made by copyright owners about the effects of piracy on their businesses.

Because the claims about piracy's effects could influence copyright legislation in the future, it's worth taking a closer look at the GAO's year-long investigation. I also wanted to cover some points I wasn't able to make in the previous story."

Viacom focused on PR war win with latest YouTube doc dump; Ars Technica, 4/16/10

Matthew Lasar, Ars Technica; Viacom focused on PR war win with latest YouTube doc dump:

"Viacom and Google's fight for public sympathy in their copyright lawsuit continues with Viacom's release of more "smoking gun" documents. The media company says the latest show that Google "made a deliberate, calculated business decision" to profit from copyright infringement after its purchase of YouTube in 2006. Nonsense, says Google in response.

This battle for hearts and minds is heating up following the publication of key court filings in Viacom's $1 billion infringement suit against YouTube and its owner Google in a New York federal district court. "

Free at last! Official ACTA text coming next week; Ars Technica, 4/16/10

Nate Anderson, Ars Technica; Free at last! Official ACTA text coming next week:

"After more than a year of sustained pressure, the countries negotiating the Anti-Counterfeiting Trade Agreement (ACTA) have decided that the time is right to release the draft text of their work.

The official announcement came today after the conclusion of negotiations in New Zealand. "There was a general sense from this session that negotiations have now advanced to a point where making a draft text available to the public will help the process of reaching a final agreement," says the official announcement.

"For that reason, and based on the specific momentum coming out of this meeting, participants have reached unanimous agreement that the time is right for making available to the public the consolidated text coming out of these discussions, which will reflect the substantial progress made at this round."

The draft text will be released this upcoming Wednesday, April 21.

The announcement also shows just how carefully the European Union, Japan, Korea, Mexico, New Zealand, the US, and others have been watching public opinion. It goes out of its way to say that the treaty will not oblige "participants to require border authorities to search travelers' baggage or their personal electronic devices for infringing materials." This is a clear attempt to rebut the "but customs will start searching my iPod!" madness we've seen in relation to ACTA.

The announcement also says that "no participant is proposing to require governments to mandate a 'graduated response' or 'three strikes' approach to copyright infringement on the Internet." As we've reported before, the leaked draft text does demand that ISPs have some plan in place to deter infringers, and a footnote made it clear that booting them off the Internet would be a great way to handle this—but the language in the draft came straight from the existing DMCA in the US and does not mandate any specific approach.

The announcement is certainly good news for fans of transparency, but it's not all sunshine and unicorns. For one thing, the participants plan to strip out their "respective positions." In other words, we are going to get a consolidated draft text that provides no information about who has been arguing for what position.

Not that it really matters, since massive leaks have already revealed negotiating positions and a complete draft text from January. It's disappointing that the negotiating countries refused to release more information about the process along the way; their decision to do so now has limited meaning, since the complete text is already leaked.

Still, it should allow negotiators to start answering public questions about the treaty and responding to public criticism. That's a good thing, but it comes quite late in the process. After a couple years of negotiations, the existence of a "consolidated text" shows that most of the tough negotiating has already been done. Changes could still be made at this point, but it's late in the process and today's announcement reminds us that the aim is to wrap up this treaty "as soon as possible in 2010."

The next meeting takes place in Switzerland in June."

Digital Economy Act: This means war; (London) Guardian, 4/16/10

Cory Doctorow, (London) Guardian; Digital Economy Act: This means war:

Baking surveillance, control and censorship into the very fabric of our networks, devices and laws is the absolute road to dictatorial hell:

"With the rushed passage into law of the Digital Economy Act this month, the fight over copyright enters a new phase. Previous to this, most copyfighters operated under the rubric that a negotiated peace was possible between the thrashing entertainment giants and civil society.

But now that the BPI and its mates have won themselves the finest law that money can buy – a law that establishes an unprecedented realm of web censorship in Britain, a law that provides for the disconnection of entire families from the net on the say-so of an entertainment giant, a law that shuts down free Wi-Fi hotspots and makes it harder than ever to conduct your normal business on the grounds that you might be damaging theirs – the game has changed.

I came to the copyfight from a pretty parochial place. As a working artist, I wanted a set of just copyright rules that provided a sound framework for my negotiations with big publishers, film studios, and similar institutions. I worried that the expansion of copyright – in duration and scope – would harm my ability to freely create. After all, creators are the most active re-users of copyright, each one of us a remix factory and a one-person archive of inspirational and influential materials. I also worried that giving the incumbent giants control over the new online distribution system would artificially extend their stranglehold over creators. This stranglehold means that practically every media giant offers the same awful terms to all of us, and no kinder competitor can get our works into the hands of our audiences.

I still worry about that stuff, of course. I co-founded a successful business – Boing Boing, the widely-read website – that benefits enormously from not having to pay fealty to a distributor in order to reach its readers (by contrast, the old print edition of Boing Boing folded when its main distributor went bankrupt while owing it a modest fortune and holding onto thousands of dollars' worth of printed materials that we never got back). My novels find their way onto the bestseller list by being distributed for free from my website simultaneous with their mainstream bookstore sales through publishers like Macmillan and HarperCollins and Random House.

My whole life revolves around the digital economy: running entrepreneurial businesses that thrive on copying and that exploit the net's powerful efficiencies to realise a better return on investment.

Parliament has just given two fingers to me (and every other small/medium digital enterprise) by agreeing to cripple Britain's internet in order to give higher profits to the analogue economy represented by the labels and studios.

But today, my bank-balance is the least of my worries. The entertainment industry's willingness to use parliament todi impose censorship and arbitrary punishment in the course of chasing a few extra quid is so depraved and terrible that it has me in fear for the very underpinnings of democracy and civil society.

In the US, the MPAA and RIAA (American equivalents of the MPA and the BPI) just submitted comments to the American Intellectual Property Czar, Victoria Espinel, laying out their proposal for IP enforcement. They want us all to install spyware on our computers that deletes material that it identifies as infringing. They want our networks censored by national firewalls (U2's Bono also called for this in a New York Times editorial, averring that if the Chinese could control dissident information with censorware, our own governments could deploy similar technology to keep infringement at bay). They want border-searches of laptops, personal media players and thumb-drives.

They want poor countries bullied into diverting GDP from humanitarian causes to enforcing copyright. And they want their domestic copyright enforcement handled, free of charge, by the Department of Homeland Security.

Elements of this agenda are also on display (or rather, in hiding) in the secret Anti-Counterfeiting Trade Agreement, a treaty being drafted between a member's club of rich nations. They've turned their back on the United Nations to negotiate in private, without having to contend with journalists or public interest groups. By their own admission, they intend to impose this treaty on poor countries as a condition of ongoing trade, and in the US, the Obama administration has announced its intention to pass ACTA without Congressional debate.

I'm not such a techno-triumphalist that I believe that the free and open internet will solve all our socio-economic problems. But I am enough of a techno-pessimist to believe that baking surveillance, control and censorship into the very fabric of our networks, devices and laws is the absolute road to dictatorial hell.

Chekhov wrote that a gun on the mantelpiece in act one is sure to go off by act three. The entertainment industry's blinkered pursuit of its own narrow goals has the potential to redesign our technology to be the perfect tools and excuses for oppression."

5 Ways The Google Book Settlement Will Change The Future of Reading;, 4/2/10; 5 Ways The Google Book Settlement Will Change The Future of Reading:

"1. It may become harder to get information online about books from writers you love...

2. You will find yourself reading free books online, by authors who have disappeared. And Google will make money when you do...

3. Google will be competing with Apple and Amazon and everybody else to be your favorite online bookseller...

4. Google will be competing with Apple and Amazon and everybody else to be your favorite online bookseller...

5. Pulp science fiction will make a comeback in ways you might not expect."

Tuesday, April 13, 2010

[Podcast] American Readers, Waiting Impatiently For 'The Girl'; NPR, 4/5/10

[Podcast, 4 min. 38 sec.] NPR; American Readers, Waiting Impatiently For 'The Girl':

"All this online book-buying did not escape the attention of book sellers, like David Thompson of Murder By the Book mystery bookstore in Houston. Thompson says the store wanted to honor the U.S. release date, but it kept getting harder and harder.

"We had gotten several very loyal customers who just absolutely needed the third book because the second one ends with such a cliffhanger you really, really want to read that third one right away," Thompson says. "And so we felt that it was really important to serve our customers and import these books that there was a desperate demand for."

Eventually Knopf found out that Thompson's store and others were importing copies of The Girl Who Kicked the Hornet's Nest and selling them to their customers. Knopf asked the booksellers to stop the practice, because says Bogaards, "it's a violation of copyright law."

But even online booksellers like are supposed to honor the U.S. release dates, which Bogaards says consumers may not know.

"What I would say to readers is, I would encourage them to shop at their local bookseller here in the United States or their online bookseller in the United States, where no laws are being broken and you are supporting the continuing discovery of world literature," Bogaards says."

Copyright and wrong; Economist, 4/8/10

Economist; Copyright and wrong: Why the rules on copyright need to return to their roots:

"WHEN Parliament decided, in 1709, to create a law that would protect books from piracy, the London-based publishers and booksellers who had been pushing for such protection were overjoyed. When Queen Anne gave her assent on April 10th the following year—300 years ago this week—to “An act for the encouragement of learning” they were less enthused. Parliament had given them rights, but it had set a time limit on them: 21 years for books already in print and 14 years for new ones, with an additional 14 years if the author was still alive when the first term ran out. After that, the material would enter the public domain so that anyone could reproduce it. The lawmakers intended thus to balance the incentive to create with the interest that society has in free access to knowledge and art. The Statute of Anne thus helped nurture and channel the spate of inventiveness that Enlightenment society and its successors have since enjoyed.

Over the past 50 years, however, that balance has shifted. Largely thanks to the entertainment industry’s lawyers and lobbyists, copyright’s scope and duration have vastly increased. In America, copyright holders get 95 years’ protection as a result of an extension granted in 1998, derided by critics as the “Mickey Mouse Protection Act”. They are now calling for even greater protection, and there have been efforts to introduce similar terms in Europe. Such arguments should be resisted: it is time to tip the balance back.

Annie get your gun

Lengthy protection, it is argued, increases the incentive to create. Digital technology seems to strengthen the argument: by making copying easier, it seems to demand greater protection in return. The idea of extending copyright also has a moral appeal. Intellectual property can seem very like real property, especially when it is yours, and not some faceless corporation’s. As a result people feel that once they own it—especially if they have made it—they should go on owning it, much as they would a house that they could pass on to their descendants. On this reading, protection should be perpetual. Ratcheting up the time limit on a regular basis becomes a reasonable way of approximating that perpetuity.

The notion that lengthening copyright increases creativity is questionable, however. Authors and artists do not generally consult the statute books before deciding whether or not to pick up pen or paintbrush. And overlong copyrights often limit, rather than encourage, a work’s dissemination, impact and influence. It can be difficult to locate copyright holders to obtain the rights to reuse old material. As a result, much content ends up in legal limbo (and in the case of old movies and sound recordings, is left to deteriorate—copying them in order to preserve them may constitute an act of infringement). The penalties even for inadvertent infringement are so punishing that creators routinely have to self-censor their work. Nor does the advent of digital technology strengthen the case for extending the period of protection. Copyright protection is needed partly to cover the costs of creating and distributing works in physical form. Digital technology slashes such costs, and thus reduces the argument for protection.

The moral case, although easy to sympathise with, is a way of trying to have one’s cake and eat it. Copyright was originally the grant of a temporary government-supported monopoly on copying a work, not a property right. From 1710 onwards, it has involved a deal in which the creator or publisher gives up any natural and perpetual claim in order to have the state protect an artificial and limited one. So it remains.

The question is how such a deal can be made equitably. At the moment, the terms of trade favour publishers too much. A return to the 28-year copyrights of the Statute of Anne would be in many ways arbitrary, but not unreasonable. If there is a case for longer terms, they should be on a renewal basis, so that content is not locked up automatically. The value society places on creativity means that fair use needs to be expanded and inadvertent infringement should be minimally penalised. None of this should get in the way of the enforcement of copyright, which remains a vital tool in the encouragement of learning. But tools are not ends in themselves."

Thursday, April 8, 2010

U.K. Approves Crackdown on Internet Pirates; New York Times, 4/8/10

Eric Pfanner, New York Times; U.K. Approves Crackdown on Internet Pirates:

"The British Parliament on Thursday approved plans to crack down on digital media piracy by authorizing the suspension of repeat offenders’ Internet connections.

Following the House of Commons late Wednesday, the House of Lords on Thursday approved the bill after heavy lobbying from the music and movie industries, which say they suffer huge losses from unauthorized copying over the Internet.

The law makes Britain the second large European country, after France, to approve a so-called graduated response system, under which online copyright violators face temporary suspensions of their Internet accounts if they ignore warning letters to stop.

“The U.K. has today joined the ranks of those countries who have taken decisive and well-considered steps to address the issue,” John Kennedy, chief executive of the International Federation of the Phonographic Industry, said in a statement. “We hope this will prompt more focus and urgency for similar measures in other countries where debate is under way.”

The anti-piracy plan is part of a broader bill aimed at stimulating the development of the digital economy in Britain."

Wednesday, April 7, 2010

Visual Artists to Sue Google Over Vast Library Project; New York Times, 4/7/10

Miguel Helft, New York Times; Visual Artists to Sue Google Over Vast Library Project:

"As Google awaits approval of a controversial settlement with authors and book publishers, the company’s plan to create an immense digital library and bookstore may face yet another hurdle.
On Wednesday, the American Society of Media Photographers and other groups representing visual artists plan to file a class-action lawsuit against Google, asserting that the company’s efforts to digitize millions of books from libraries amount to large-scale infringement of their copyrights.

The lawsuit, in some respects, mirrors the complaints filed in 2005 by the Authors Guild and the Association of American Publishers when they first opposed Google’s library project on copyright grounds.

Those groups have since agreed to a sweeping $125 million settlement that, if approved, would allow Google to make available and sell digital copies of millions of out-of-print books. The settlement would also give authors and publishers new ways to make money from digital copies of their work.

The photographer group decided to file suit after its efforts to intervene in the settlement were rejected by a court last year. The complaint claims Google’s mass copying efforts infringe on the rights of photographers and other creators of graphic works.

“We are seeking justice and fair compensation for visual artists whose work appears in the 12 million books and other publications Google has illegally scanned to date,” said Victor Perlman, general counsel for the American Society of Media Photographers.

Other groups joining the class action include the Graphic Artists Guild, the North American Nature Photography Association and the Professional Photographers of America, as well as individual photographers and illustrators.

Google’s settlement with authors and publishers largely excluded photographs and other visual works. Legal experts said it was not unexpected that Google would face claims from groups that were not part of the original case and are not covered by it.

“Google is trying to control or expand access to virtually all information in the world,” said Scott Moss, an associate professor at the University of Colorado Law School. “It isn’t surprising that their settlement with written authors doesn’t end all their legal battles.”

Professor Moss said that while Google would have to contend with the allegations made by the photographers and graphic artists, the new case was not likely to delay or otherwise affect the company’s settlement with authors and publishers.

Judge Denny Chin, of United States District Court for the Southern District of New York is expected to rule on the validity of the proposed settlement in the coming months.

The agreement has faced a barrage of opposition from Google rivals like and Microsoft, as well as many academics and legal scholars, representatives of authors and estates, and even some foreign governments. The Justice Department said the settlement posed antitrust and other legal problems.

Unlike the suit by authors and publishers, which focused largely on Google’s scanning of books from libraries, the suit from the photographers and graphic artists includes Google’s “partner program,” under which some publishers allow Google to include their books in the company’s book search service. The new suit claims the program fails to adequately compensate visual artists for the use of their work."

Sunday, April 4, 2010

Obama admin: time to make radio pay for its music; Ars Technica, 4/2/10

Nate Anderson, Ars Technica; Obama admin: time to make radio pay for its music:

"The recording industry scored a significant victory today with news that the Obama administration will provide its "strong support" for the Performance Rights Act. The bill would force over-the-air radio stations to start coughing up cash for the music they play; right now, the stations pay songwriters, but not the actual recording artists.

This has been a dream of the recording industry for decades, but it has taken on new importance as the revenues from recorded music have plummeted over the last decade. The broadcasters refer to the idea as a new "tax" that will largely benefit foreign record companies such as Universal (France), Sony (Japan), and EMI (UK).

Taking sides

Today, a letter from the Commerce Department's general counsel, Cameron Kerry, makes clear which side has the administration's support: the recording industry. (We double-checked with Kerry's office; this is no April Fools' joke.)

"The Department has long endorsed amending the US copyright law to provide for an exclusive right of public performance of sound recordings," says the letter. It pledges "strong support" for the current bill and approves the idea that radio's payment exemption is nothing more than "an historical anomaly that does not have a strong policy justification."

A copy of the letter was sent to Sen. Patrick Leahy (D-VT), chair of the Senate Judiciary Committee. In the letter, Kerry says that making radio pay for music is really a matter of fairness—not just to artists, but to Internet webcasters and satellite radio, too.

That's because both webcasters and the satellite radio folks currently do have to pay a public performance right on the music they play; the exclusion granted to over-the-air broadcasters thus distorts the market and makes it difficult for new technologies to gain traction. "It would also provide a level playing field for all broadcasters to compete in the current environment of rapid technological change, including the Internet, satellite, and terrestrial broadcasters," says the letter.

In addition to rationalizing the performance rights scheme in the US, Commerce points out that the US is the only major industrialized country to have such an exemption for over-the-air radio. Making a change isn't just a case of bowing to peer pressure; real money is at stake, since many artists are unable to collect the public performance money due them in other countries because of "the lack of reciprocal protection under US copyright law.""

Saturday, April 3, 2010

[OpEd] The End of History (Books); New York Times, 4/3/10

[OpEd] New York Times; Marc Aronson, The End of History (Books):

"TODAY, Apple’s iPad goes on sale, and many see this as a Gutenberg moment, with digital multimedia moving one step closer toward replacing old-fashioned books.

Speaking as an author and editor of illustrated nonfiction, I agree that important change is afoot, but not in the way most people see it. In order for electronic books to live up to their billing, we have to fix a system that is broken: getting permission to use copyrighted material in new work. Either we change the way we deal with copyrights — or works of nonfiction in a multimedia world will become ever more dull and disappointing.

The hope of nonfiction is to connect readers to something outside the book: the past, a discovery, a social issue. To do this, authors need to draw on pre-existing words and images.
Unless we nonfiction writers are lucky and hit a public-domain mother lode, we have to pay for the right to use just about anything — from a single line of a song to any part of a poem; from the vast archives of the world’s art (now managed by gimlet-eyed venture capitalists) to the historical images that serve as profit centers for museums and academic libraries.

The amount we pay depends on where and how the material is used. In fact, the very first question a rights holder asks is “What are you going to do with my baby?” Which countries do you plan to sell in? What languages? Over what period of time? How large will the image be in your book?

Given that permission costs are already out of control for old-fashioned print, it’s fair to expect that they will rise even higher with e-books. After all, digital books will be in print forever (we assume); they can be downloaded, copied, shared and maybe even translated. We’ve all heard about the multimedia potential of the iPad, but how much will writers be charged for film clips and audio? Rights holders will demand a hefty premium for use in digital books — if they make their materials available in that format at all.

Seeing the clouds on the horizon, publishers painstakingly remove photos and even text extracts from print books as they are converted to e-books. So instead of providing a dazzling future, the e-world is forcing nonfiction to become drier, blander and denser.

Still, this logjam between technological potential and copyright hell could turn into a great opportunity — if it leads to a new model for how permission costs are calculated in e-books and even in print.

For e-books, the new model would look something like this: Instead of paying permission fees upfront based on estimated print runs, book creators would pay based on a periodic accounting of downloads. Right now, fees are laid out on a set schedule whose minimum rates are often higher than a modest book can support. The costs may be fine for textbooks or advertisers, but they punish individual authors. Since publishers can’t afford to fully cover permissions fees for print books, and cannot yet predict what they will earn from e-books, the writer has to choose between taking a loss on permissions fees or short-changing readers on content.

But if rights holders were compensated for actual downloads, there would be a perfect fit. The better a book did, the more the original rights holder would be paid. The challenge of this model is accurate accounting — but in the age of iTunes micropayments surely someone can figure out a way.

Before we even get to downloads, though, we need to fix the problem for print books. As a starting point, authors and publishers — perhaps through a joint committee of the Authors Guild and the Association of American Publishers — should create a grid of standard rates and images and text extracts keyed to print runs and prices.

Since authors and publishers have stakes on both sides of this issue, they ought to be able to come up with suggested fees that would allow creators to set reasonable budgets, and compel rights holders to conform to industry norms.

A good starting point might be a suggested scale based on the total number of images used in a book; an image that was one one-hundredth of a story would cost less than an image that was a tenth of it. Such a plan would encourage authors to use more art, which is precisely what we all want.

If rights remain as tightly controlled and as expensive as they are now, nonfiction will be the province of the entirely new or the overly familiar. Dazzling books with newly created art, text and multimedia will far outnumber works filled with historical materials. Only a few well-heeled companies will have the wherewithal to create gee-whiz multimedia book-like products that require permissions, and these projects will most likely focus on highly popular subjects. History’s outsiders and untold stories will be left behind.

We treat copyrights as individual possessions, jewels that exist entirely by themselves. I’m obviously sympathetic to that point of view. But source material also takes on another life when it’s repurposed. It becomes part of the flow, the narration, the interweaving of text and art in books and e-books. It’s essential that we take this into account as we re-imagine permissions in a digital age.

When we have a new model for permissions, we will have new media. Then all of us — authors, readers, new-media innovators, rights holders — will really see the stories that words and images can tell."

Thursday, April 1, 2010

Remix Pedagogy, Libraries, and the Georgia State Case | Peer to Peer Review; Library Journal,

Barbara Fister, Library Journal; Remix Pedagogy, Libraries, and the Georgia State Case Peer to Peer Review:

"I found myself wondering today if students at my college would be happy if the US District Court for the Northern District of Georgia agrees to the motion for summary judgment filed by Cambridge, Oxford, and SAGE against Georgia State University. A ruling in favor of the publishers could put an end to most library e-reserves programs and would essentially prohibit the sharing of scholarly publications through course management systems (CMSs) without purchasing a license for each work, each student, each semester.

So why might our students be pleased?

Increasing students’ costs by replacing e-reserves with coursepacks, print or electronic, is, frankly, a non-starter. Legislators have been logging so many complaints about the cost of textbooks, the US Congress has passed a law that requires faculty to identify their required course texts before students register for classes, so that they can calculate how much the course will set them back and plan accordingly.

This is not pleasing to faculty, who now have to turn in their textbook orders much earlier, and it’s a huge headache for campus bookstores (which have to play along but will lose sales to used book vendors) and registrars who have to construct new registration procedures to enforce the law. If the courts rule against George State University, making students pay for virtually every assigned reading would be a politically toxic outcome. But it’s equally unlikely that cash-strapped institutions would be willing or able to subsidize the costs on behalf of students.

The most likely immediate outcome is that faculty would simply scale back on reading assignments. I can hear our students cheering already. But is this really good for higher education?

Going to the source

Many instructors prefer to expose students to scholarly work in its original form, rather than rely exclusively on textbooks that have combined and digested the most commonly-accepted research ideas into an accessible but bland survey.

Of course, faculty have other options. If pay-per-use proved to be too expensive, they could limit their assigned reading to open access scholarship or to materials that are licensed by the library for campus use—oh, but not including publications like the Harvard Business Review, which prohibits using its library-licensed articles in courses. (Personally, I think tenure and promotion committees should disregard any citations to this publication on candidate’s CVs, just to even the score.)

But knowledge isn’t built out of stuff that can be easily substituted, depending on cost and availability. It’s built out of unique ideas that were expressed by scholars in order to contribute something new to our understanding of the world. One of the reasons why market-based economics are so inappropriate for scholarly communication is that in the marketplace of ideas, you can’t win market share by offering a cheaper idea.

Each idea has to stand on its own merits, regardless of which publishing company owns the copyright. If I can’t afford the knowledge in an article published in Nature Neuroscience, I can’t correct the market by choosing an article in a cheaper journal. Even more confounding, being exclusive and rare does not increase the value of an idea; its value is measured by how often it’s shared.

From the publishers’ perspectiveTo try and understand the publishers’ argument, I read the original complaint, their motion for summary judgment, and supporting materials filed by two university presses and one for-profit scholarly press against four individuals: the president, provost, and heads of the library and IT operations at Georgia State University (which, the plaintiffs note, employs over 100 faculty who have written some of the materials these publishers make available; I wonder what they think about this lawsuit?). These seem to be the plaintiffs’ major points:

Revenue generated by course packs has gone down as e-reserve and CMS systems are adopted; students prefer not to purchase course packs because they are costly, so encourage their instructors to make readings available in an alternative form. It’s hard to know exactly what losses we’re talking about, since every sales figure has been redacted from the documents.

Seems it’s none of our business how much we spend on this stuff.

Some instructors’ course content is conveyed through scholarly texts that, though they have likely been acquired by the library on behalf of the campus, don’t generate new revenue for publishers as students are asked to read them. Implicit in this objection is that faculty should be requiring students to purchase most of their course materials and are engaging in spurious remix culture by creating their own spontaneous anthologies. Oh, for shame.

The plaintiffs feel that checklists used to guide fair use decisions are inappropriate because the people using them are not trained in the law, and such checklists (like the one posted at the Copyright Clearance Center (CCC), which the plaintiffs otherwise endorse as a convenient resource for paying licenses) are too likely to support fair use claims. (Hat tip to Kevin Smith for the link to CCC’s checklist.)

Because readings are in digital form, students could copy and distribute works even if access is limited to enrolled students. Apparently students should not only pay per use, but that use should be limited in some fashion. This neglects the fact that library subscriptions to digital materials enable distribution of full-text articles; in fact, most databases, even SAGE Journals Online, have functions for saving or e-mailing copies of articles, enabling convenient sharing capability. (Maybe I shouldn’t be giving these people ideas.)

Colleges and universities should adhere to fair use guidelines as restrictive as those followed by publishers; one of the plaintiffs points out that when they publish a work that incorporates copyrighted material, they consider it fair use only if they use less than three percent of the work and the use is transformative—which assigned reading typically would not be. They suggest there is no way that reading scholarly materials without a payment for each student could be fair use.

I particularly like this bit of outrage: Students are able to get materials “without setting foot in a bookstore or expending a single cent on the copyrighted materials that lie at the heart of the educational experience.” Have they heard of libraries? Of course they have! We’re their biggest customers. But apparently we’re not at the heart of the educational experience, or if we are, we shouldn’t be.

I confess I laughed out loud at this statement: “This revenue is also vitally important to the authors of such works, and serves as a spur to, and reward for, creative expression.” There is no direct financial incentive for most academic authors to publish. However, having one of your articles assigned in courses, while not profitable, is sweet.

And then there’s this fit of pique: “Defendant’s acts have been and continue to be willful, intentional and purposeful, in violation of Plaintiff’s rights.” In other words, Georgia State didn’t roll over and settle out of court.

I admit, after reading their arguments, the only one that makes any sense to me is that the revenue stream that came from coursepacks is drying up, and publishers are concerned about how to sustain their operations. But is that reason enough to demand that the use of scholarly materials in courses should be metered on a pay-per-use basis? It seems to me irresponsible for scholarly publishers to attempt to criminalize the use of these materials in courses unless it generates additional income for them.

What are our options?

Raizel Liebler asked an excellent question at the LibraryLaw Blog back in 2008, when the complaint was first filed: is fair use dead? Or are traditional publishing models dying? She lays out five options for libraries if publishers win this lawsuit:

Pay permissions for everything placed on e-reserve. This, of course, will reduce our ability to buy new scholarship and will not enhance publishers’ bottom line.

Adopt a deeply conservative set of guidelines and hope they pass muster.

Tell faculty the only things they can put in e-reserves are links to licensed content that doesn’t prohibit such linking.

Cease offering e-reserves.

Change the system.

This last idea, of course, is the only option that has a positive outcome. We need to find a way that scholars can both systematically and impulsively share scholarly work with students without penalty. We need to find a way to support and sustain the editorial value provided by conscientious and professional publishing. We need to ensure that the materials libraries provide on behalf of their communities can be used to further students’ educations.

Something is badly broken when university presses sue universities for using their materials. We need to stop playing a shell game that merely shifts the costs and benefits around. It’s not sustainable.

I want my students to be happy, and I want our faculty to be more aware of the case for open access, but putting a tollgate on library materials used in courses is not the way to go."

EFF's Fred von Lohmann Wins Copyright Award; Electronic Frontier Foundation, 3/30/10

Electronic Frontier Foundation; EFF's Fred von Lohmann Wins Copyright Award:

"EFF Senior Staff Attorney Fred von Lohmann was named the 2010 winner of the L. Ray Patterson Copyright Award today.

The American Library Association (ALA) Office for Information Technology Policy (OITP) and its Copyright Advisory Subcommittee issues the award to recognize work done in support of fair use and the public domain. The award is named after the late L. Ray Patterson, a copyright scholar and historian that left a lasting impression on the law of copyright, the public domain, and fair use.

Chair of the OITP Copyright Advisory Subcommittee Patrick Newell said, "Fred is a tireless advocate for openness of information and seeking the proper balance between intellectual property protection and the public interest in fair use, expression and innovation."

An award reception honoring Fred will be held on June 25 during the ALA's Annual Conference in Washington, D.C."

Study Finds Copyright Concerns Affect Communication Research; Wired Campus, Chronicle of Higher Education, 4/1/10

Jill Laster, Wired Campus, Chronicle of Higher Education; Study Finds Copyright Concerns Affect Communications Research:

"A new survey has found that many communications scholars lack confidence in their knowledge of copyright laws in relation to their research.

On Thursday, American University's Center for Social Media and the International Communication Association released a survey of ICA members titled "Clipping Our Own Wings: Copyright and Creativity in Communication Research." The e-mail survey—to which about 8 percent of ICA members, or 387, responded—found that nearly half of all communications scholars were not confident about their knowledge of copyright laws. The survey also found that nearly a third avoided research subjects or questions because of that lack of knowledge, and a fifth abandoned research that was already under way because of copyright worries.

The report's authors say that the abandoned research is perhaps the most important part of the study because it results in unrealized work and "self censorship" among scholars.

Patricia Aufderheide, director of the Center for Social Media and part of the committee that produced the report, said that in the last two decades "we've seen the erosion of 'fair use'" for different reasons. She cited the growth of the Internet, tightening of copyright rules, and the growth of large media copyright holders, among other things.

"There's a lot of pressures that end up at the desk of some poor communications professor who never thought he'd have to think about this stuff," said Ms. Aufderheide.

According to the report, communications scholars on the whole frequently use copyrighted works such as books (82 percent), journal articles (86 percent) and Internet content (72 percent).

But according to the report, about 60 percent of the scholars had some difficulty getting access to copyrighted works, including problems with obtaining permissions, prohibitive costs, convenient access or copying options, and technological barriers including encryption.

The authors of the report recommend that scholars develop standards for copyright exemption that include "fair use" allowances guaranteed by federal law. The Center for Social Media has produced a code of best practices for use in the profession.

"Effective use of copyright exemptions, such as fair use, fair dealing, and right of quotation, has been shown to have direct links to the quality and nature of creative work," the authors say in the report. "When creators fail to understand or make use of exemptions that permit quotation of existing (and usually copyrighted) culture, they typically suffer from a failure not only to complete work but a hobbling of the imaginative and creative process itself."

European ACTA Negotiators Reject "Three Strikes" Moniker; EFFector List, Electronic Frontier Foundation, 4/1/10

EFFector List, Electronic Frontier Foundation; European ACTA Negotiators Reject "Three Strikes" Moniker:

"Seething Danes were seen stomping out of the ACTA negotiation chambers in Wellington, New Zealand, citing frustration with the United States negotiators' continued pushing of "three strikes" proposals.

"ACTA is an international agreement," fumed negotiator Olaf Atdis. "It's absurd for the United States to continue demanding a baseball analogy when a football analogy would be much more representative of the diversity of the negotiating countries."

"Three strikes" laws and policies require Internet serviceproviders to automatically disconnect their Internetusers on repeat allegations of copyright infringementby entertainment company complaints, but EU negotiatorsreportedly prefer a "carding" system. ISPs that receive complaints would issue "yellow cards" and "red cards,"tracking the official penalty system of the Fédération Internationale de Football Association (FIFA).

EFF spoke out against both naming conventions. "These sports analogies are antithetical to the spirit of the open Internet," argued EFF International Director Gwen Hinze. "The Internet is much more like the Force, which as Obi-Wan taught us all, 'surrounds us and penetrates us. It binds the galaxy together.' Evil Sith-Imperial complaints should not result in an individual being severed from the Force. That's clearly preposterous.""

For more about yellow cards, red cards, the Force,and ACTA: