The United Kingdom’s Intellectual Property Office (IPO) just released an extremely important announcement revising the UK’s copyright laws, bringing them more up to date with a digital age. “Modernising Copyright: A modern, robust and flexible framework” (pdf) formalizes permissions for a wide range of acts that in the U.S. are likely to be judged as Fair Use, but which have not obtained the benefit of explicit endorsement.
One of the IPO’s singular provisions in “Modernising Copyright” – that contracts cannot overwrite existing copyright exceptions and limitations – will have widespread repercussions. IFLA is helping drive similar discussions in international deliberations at WIPO focusing on libraries and archives. The U.S. Congress should give serious consideration to adopting a homologous principle. The UK, whose copyright framework is broadly similar to the U.S., now stands at the forefront of European thinking on copyright. Continue reading
On October 26 and 27—yes, just before Hurricane Sandy—New York Law School hosted In re Books, a “conference on law and the future of books.” A loose spiritual sequel to our 2009 conference on the Google Books settlement, D is for Digitize, In re Books was designed to bring together authors, publishers, librarians, scholars, and readers to think deeply about the challenges facing books in a digital age, and how law can help face those challenges. I’m happy to report that, following some post-Sandy cleanup, full video of the conference is now available online. (We will have downloadable versions ready soon.)
In my opening remarks, I tried to set a tone of good will for the conference:
We here in this room are joined by a common love of books. We are authors, publishers, literary agents, librarians, archivists, scholars and especially all of us are readers. And we are gathered together in a law school, for of all the professions, it is the lawyers who are the most devoted to the written word. Our task is to consider the future of books and law in a digital age. We stand at the crossroads of legal code, computer code, and the codex.
The legal system for books we have today is essentially the same one developed three hundred years ago to make cultural and economic sense out of the rise of a transformative media technology: the printing press. Today, we are living through—we are creating—another, equally transformative media technology: the computer. We are, I submit, still in the in incunabulum age of the digital book; the basic technology is clearly established, but the social outlines of what digital books will become are not. Determining the most appropriate laws to go along with them—whether it be the next iteration of copyright, or the Worshipful Company of Kickstarters, or the Deposit Library of Babel, or the inalienable moral right to have your wiki revisions properly attributed—we will not today or tomorrow finish the task, but we can perhaps help to advance it. …
It is early in the morning of the next age of books. Let us welcome in the day and see what it will bring. Continue reading
When I was working in the Open Book Alliance to defeat the Google Book Search proposals, one of the first things that I learned as a neophyte working the Hill was that one’s allies and foes on legislative action swirled in fluid kaleidoscopes. Coalitions formed and then re-formed depending on what was at issue, and who had a stake. Public positions could change suddenly and inexplicably, until one figured out whom had spoken to who.
So it was this weekend before Thanksgiving. On Friday, 16 November, the conservative Republican Study Committee (RSC) released an amazingly liberal document proposing deep and substantive reforms in U.S. copyright law. Within 24 hours, on Saturday, 17 November, the report had been pulled from the House website and an email apology for its “inadequate” vetting had been flung out on the net. Hollywood had hit their phones, and the political volte-face was as dramatic as something out of Hitchcock’s The Man Who Knew Too Much. Continue reading
Words have to be put in context. Last week, Skip Dye, Random House’s VP of Library and Academic Sales, was quoted in Library Journal as saying, “Random House’s often repeated, and always consistent position is this: when libraries buy their RH, Inc. ebooks from authorized library wholesalers, it is our position that they own them.” Along with many others, I had many questions about what RH meant by “own.” I wrote Mr. Dye directly, noting that the Internet Archive was able to cut a check as a registered California library to purchase books for Open Library. Mr. Dye returned my message, and yesterday we had a long conversation, running almost an hour. At the end of our discussion, I better understand how much ownership libraries have of Random House titles: Nada. Libraries don’t own anything. Continue reading
This past week, Michael Kelley, the Editor in Chief of Library Journal, called attention to statements from Random House that suggest that libraries own the books they acquire from distributors such as Overdrive or 3M. Evidently, as far as Random is concerned, distributors are not compelled to enforce license agreements with libraries for Random House titles. Michael quotes Skip Dye, head of library relations at Random, “Random House’s often repeated, and always consistent position is this: when libraries buy their RH, Inc. ebooks from authorized library wholesalers, it is our position that they own them.” Skip goes on to say, “This is our business model: we sell copies of our ebooks to an approved list of library wholesalers, and those wholesalers are supposed to resell them to libraries. In our view, this purchase constitutes ownership of the book by the library. It is not a license.”
In programming languages, there is a crucial concept called a “pointer.” A pointer is a reference to a location in memory where the value of an object, such as a variable or constant, is stored. One often chooses to perform operations on memory locations rather than on objects directly; one can even manipulate pointers to arrays of pointers. I struggled to grasp this concept when I was introduced to programming languages that relied on pointer logic, such as C. Working with older Fortran compilers, I didn’t understand why one might want to reference a variable’s contents instead of operating directly on it. Eventually, I intuited how insanely powerful this tool was, and I never questioned it again.
In the world of e-books, we are still living in the age of Fortran 77. We’re fixated on directly handling ebooks on our dedicated readers or mobile devices – irrespective of whether they are truly owned or only licensed – and we wrestle with the novel control the retailer exerts over digital books even after we purchase them. That’s understandable, given the basis of our prior experience with print books; it certainly suits ebook retailers, who want to continue to own the online relationship with the user. For libraries as well as individuals, having the option of putting one’s hands on the object – even if it is digital – reflects the emotional priorities of ownership as well as the presumably concomitant ability for libraries to preserve content as part of their mission.
The genesis of new companies like Bookshout point us in a new direction. Bookshout provides users with a vendor-neutral bookshelf where a reader can aggregate their content from different retailers onto a common platform. While there remain a lot of questions about how Bookshout will work at scale, it has the support of many publishers who endorse the ability of readers to move their books to a location of their choosing. The retailers – Amazon, Apple, and others – may be less thrilled at the potential circumvention of their heretofore proprietary relationship with purchasers of e-books. Continue reading
The Authors Guild’s lawsuit against Google over book scanning is grinding on into its eighth year. After a settlement, an amended settlement, a rejection of the settlement, and a protracted procedural fight over certifying the case as a class action, it has made almost no substantive progress in front of Judge Chin. Meanwhile, the Authors Guild’s lawsuit against Google’s HathiTrust library partners has produced a definitive ruling from Judge Baer in little more than a year. What started as a sideshow has become the main event.
And what an event it is! The mainstream media were all over last week’s ho-hum settlement between Google and the AAP but have mostly kept quiet about yesterday’s ruling. In contrast, the Twitterverse exploded with news of the HathiTrust opinion and hasn’t quieted down yet. The Twitterers have it right: this decision is a big deal. There are so many winners from the decision, it’s hard to count them all: Continue reading
A Federal judge has found in favor of defendant HathiTrust’s (HT) request for summary judgment on Fair Use grounds against the Authors Guild (AG), delivering a victory for those seeking new uses for digitized material. The AG had filed suit against HathiTrust and several public universities alleging widespread copyright infringement through Hathi’s mass digitization project (MDP) with Google.
Judge Baer ruled that the MDP was transformative; the uses made of the digital copies for search, analysis, and facilitating access for the reading disabled all clearly fell within Fair Use. In his ruling, which eliminates the need for a jury trial, Baer’s language was emphatic: “Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact. I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP … “.
Although the AG could appeal the HT ruling, PW contributor and legal scholar James Grimmelmann notes that the “opinion makes the case seem so lopsided that it makes the appeal into an uphill battle.” Judge Baer clearly felt that some of AG’s assertions – e.g., proclaiming that Section 108 worked precisely opposite the way it clearly states it works with Fair Use, were frivolous. Legal fees are routinely assessed against the losing party in copyright cases, and the AG should offer not to appeal the case in exchange for the defendants agreeing not to seek attorneys’ fees. Whether defendants would accept such a trade given the low odds of a successful appeal is open to question.
The Court’s straightforward and clean ruling provides the AG with very little room to maneuver in its continuing case against Google, which is currently stayed on a procedural issue at the Appeals Court. Notably, Judge Baer found that the AG, as an authors association, lacked the ability to represent its members’ individual copyright claims in AG v. HathiTrust. This suggests that only class action certification, which now must be upheld at Appeals, would permit it to have a compelling footprint in its case before Judge Chin.
Last month, a British tabloid reported that Bruce Willis was planning to sue Apple. The actor, the newspaper explained, was furious that iTunes’s terms of service would keep him from leaving his music collection to his daughters when he died. The story was soon revealed to be somewhere between fantasy and fabrication. But even before a five-word tweet from Willis’ wife (“it’s not a true story”) definitively refuted the article’s claims, the news had gone viral, spreading far beyond the usual haunts of fatuous celebrity journalism. Something in the rage of Imaginary Bruce Willis had touched a nerve.
Part of what makes the story so remarkable is that it’s also so implausible. Bruce Willis is one of the most successful actors of his generation, with a Hollywood career spanning three decades and multiple mega-hits. He’s so successful that surely he could afford to leave his daughters enough money to buy all the digital music they they can listen to. No child of Bruce Willis will ever want for music.
But the story blew up like something out of a Bruce Willis movie because it tweaked an anxiety many people share about copyright: that we no longer really own the songs we listen to or the books we read. Traditionally, a crucial part of copyright law’s bargain between author and audience was that the author owns the copyright, the audience owns their copies. This second half of the deal—that we have the right to give away our media, to lend them to friends or sell them to strangers—was enforced by the doctrine known as first sale. You buy something and it’s yours. Only the author has the right to authorize more copies, but you can do with yours as you please. Continue reading
Almost seven years ago to the day that the five of the largest publishers in the world filed a suit in a U.S. district court against Google, the AAP and Google announced that the parties have agreed to settle their litigation. Although publishing announcements seem tethered to the penumbra of the Frankfurt Book Fair, this is not “stop the presses” material: the publishers have been negotiating with Google for some time, even while the Authors Guild determinedly presses their class action engagement. But what is surprising, perhaps, is that so little has been apparently achieved by the publishers through these long years of uncertainty.
Publishers are left to opt-out of Google’s library-obtained dataset, and can now participate in commercializing older titles that Google has never ceased digitizing both in the U.S. and abroad, even if the rate of library digitization may be slowing. Acceptance of an underwhelming result which leaves nothing changed on the ground, as legal scholar James Grimmelmann of New York Law School notes, marks a pivot from 2007 when the suit was launched with a fulsome and righteous salvo: “Publishers bring this action to prevent the continuing, irreparable, and imminent harm that Publishers are suffering, will continue to suffer, and expect to suffer due to Google’s willful infringement, to further its own commercial purposes, of the exclusive rights of copyright that Publishers enjoy in various books …”.
Well, so much for that. Continue reading