Archive for the 'Copyright' Category

First Sale Doctrine Win in Kirtsaeng v. John Wiley & Sons

Posted in Copyright on March 19th, 2013

The Supreme Court has ruled in Kirtsaeng, dba Bluechristine99 v. John Wiley & Sons, Inc. that the first sale doctrine applies to “copies of a copyrighted work lawfully made abroad.”

Here's an excerpt from the ruling:

Held: The "first sale" doctrine applies to copies of a copyrighted work lawfully made abroad. Pp. 7-33.

(a) Wiley reads "lawfully made under this title" to impose a geographical limitation that prevents §109(a)'s doctrine from applying to Wiley Asia's books. Kirtsaeng, however, reads the phrase as imposing the non-geographical limitation made "in accordance with" or "in compliance with" the Copyright Act, which would permit the doctrine to apply to copies manufactured abroad with the copyright owner's permission. Pp. 7-8.

(b) Section 109(a)'s language, its context, and the "first sale" doctrine's common-law history favor Kirtsaeng's reading. Pp. 8-24.

(1) Section 109(a) says nothing about geography. "Under" can logically mean "in accordance with." And a nongeographical interpretation provides each word in the phrase "lawfully made under this title" with a distinct purpose: "lawfully made" suggests an effort to distinguish copies that were made lawfully from those that were not, and "under this title" sets forth the standard of "lawful[ness]" (i.e., the U. S. Copyright Act). This simple reading promotes the traditional copyright objective of combatting piracy and makes word-by-word linguistic sense.

In contrast, the geographical interpretation bristles with linguistic difficulties. Wiley first reads "under" to mean "in conformance with the Copyright Act where the Copyright Act is applicable." Wiley then argues that the Act "is applicable" only in the United States. However, neither "under" nor any other word in "lawfully made under this title" means "where." Nor can a geographical limitation be read into the word "applicable." The fact that the Act does not instantly protect an American copyright holder from unauthorized piracy taking place abroad does not mean the Act is inapplicable to copies made abroad. Indeed, §602(a)(2) makes foreign-printed pirated copies subject to the Copyright Act. And §104 says that works "subject to protection" include unpublished works "without regard to the [author's] nationality or domicile," and works "first published" in any of the Cite as: 568 U. S. ____ (2013) 3 Syllabus nearly 180 nations that have signed a copyright treaty with the United States. Pp. 8-12.

(2) Both historical and contemporary statutory context indicate that Congress did not have geography in mind when writing the present version of §109(a). A comparison of the language in §109(a)'s predecessor and the present provision supports this conclusion. The former version referred to those who are not owners of a copy, but mere possessors who "lawfully obtained" a copy, while the present version covers only owners of a "lawfully made" copy. This new language, including the five words at issue, makes clear that a lessee of a copy will not receive "first sale" protection but one who owns a copy will be protected, provided that the copy was "lawfully made." A nongeographical interpretation is also supported by other provisions of the present statute. For example, the "manufacturing clause," which limited importation of many copies printed outside the United States, was phased out in an effort to equalize treatment of copies made in America and copies made abroad. But that "equal treatment" principle is difficult to square with a geographical interpretation that would grant an American copyright holder permanent control over the American distribution chain in respect to copies printed abroad but not those printed in America. Finally, the Court normally presumes that the words "lawfully made under this title" carry the same meaning when they appear in different but related sections, and it is unlikely that Congress would have intended the consequences produced by a geographical interpretation. Pp. 12-16.

(3) A nongeographical reading is also supported by the canon of statutory interpretation that "when a statute covers an issue previously governed by the common law," it is presumed that "Congress intended to retain the substance of the common law." Samantar v. Yousuf, 560 U. S. ___, ___. The common-law "first sale" doctrine, which has an impeccable historic pedigree, makes no geographical distinctions. Nor can such distinctions be found in Bobbs-Merrill Co. v. Straus, 210 U. S. 339, where this Court first applied the "first sale" doctrine, or in §109(a)'s predecessor provision, which Congress enacted a year later. Pp. 17-19.

(4) Library associations, used-book dealers, technology companies, consumer-goods retailers, and museums point to various ways in which a geographical interpretation would fail to further basic constitutional copyright objectives, in particular "promot[ing] the Progress of Science and useful Arts," Art. I, §8, cl. 8. For example, a geographical interpretation of the first-sale doctrine would likely require libraries to obtain permission before circulating the many books in their collections that were printed overseas. Wiley counters that such problems have not occurred in the 30 years since a federal court first adopted a geographical interpretation. But the law has not been settled for so long in Wiley's favor. The Second Circuit in this case was the first Court of Appeals to adopt a purely geographical interpretation. Reliance on the "first sale" doctrine is also deeply embedded in the practices of booksellers, libraries, museums, and retailers, who have long relied on its protection. And the fact that harm has proved limited so far may simply reflect the reluctance of copyright holders to assert geographically based resale rights. Thus, the practical problems described by petitioner and his amici are too serious, extensive, and likely to come about to be dismissed as insignificant—particularly in light of the ever-growing importance of foreign trade to America. Pp. 19-24.

(c) Several additional arguments that Wiley and the dissent make in support of a geographical interpretation are unpersuasive. Pp. 24-33. 654 F. 3d 210, reversed and remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, SOTOMAYOR, and KAGAN, JJ., joined. KAGAN, J., filed a concurring opinion, in which ALITO, J., joined. GINSBURG, J., filed a dissenting opinion, in which KENNEDY, J., joined, and in which SCALIA, J., joined except as to Parts III and V-B-1.

| Digital Scholarship | Digital Scholarship Publications Overview | Sitemap |

Be Sociable, Share!

    The Thinkpiece "Libraries, eLending, and the Future of Public Access to Digital Content"

    Posted in Copyright, E-Books, Licenses, Reports and White Papers on February 20th, 2013

    IFLA has released The Thinkpiece "Libraries, eLending, and the Future of Public Access to Digital Content".

    Here's an excerpt:

    In October 2012 IFLA therefore commissioned an independent consultant, Civic Agenda, to prepare a 'thinkpiece' to inform discussion at a meeting of experts from the library and publishing sector. This meeting took place over three days at IFLA Headquarters in The Hague in November 2012. The thinkpiece was the starting point for discussions on desirable characteristics for public access models for library digital content, library user expectations' regarding eBooks, and the relationship between libraries and publishers in the eBook age. During the meeting participants focused on the role of copyright, licensing and legislation in access to digital content like eBooks, as well as reviewing advocacy campaigns and the potential for IFLA as an advocate for library access to eBooks.

    | Scholarly Electronic Publishing Bibliography 2010 ( paperback and PDF file; over 3,800 entries) | Digital Scholarship |

    Be Sociable, Share!

      "A Case for the Public Domain"

      Posted in Copyright, Open Access, Public Domain on February 18th, 2013

      Clark D. Asay has self-archived "A Case for the Public Domain" in SSRN.

      Here's an excerpt:

      Over the past several decades open license movements have proven highly successful in the software and content worlds. . . . This Article argues that this IP-based approach, while perhaps helpful in the beginning, is no longer necessary and in fact prevents the movements from reaching their full potential. The IP-based approach has this effect by causing significant transaction costs without offsetting benefits, resulting in a tragedy of the anti-commons. The IP-based approach also creates the risk of IP trolls in the future, especially in the copyright sphere. . . . The Article then examines the benefits of a public domain approach and argues that such an approach would reduce the wasteful transaction costs, limit the possibility of IP trolls, still satisfy the purposes of those that contribute materials under open licenses, and better align with the normative tenets of such movements. To conclude, the Article assesses the merits of a "Public Domain Act" that would help address obstacles that currently exist in dedicating materials to the public domain and posits some theoretical implications relating to innovation based on the experiences of the open license movements and the arguments of this Article.

      | Digital Scholarship's Digital/Print Books | Digital Scholarship |

      Be Sociable, Share!

        Presentations from the Congressional Internet Caucus Advisory Committee’s State of the Net Conference

        Posted in Copyright, Data Curation, Open Data, and Research Data Management, Digital Copyright Wars, Digital Culture on February 14th, 2013

        The Congressional Internet Caucus Advisory Committee has released presentations from the State of the Net conference.

        Here's a description of the conference:

        Attracting over 600 attendees annually, the State of the Net Conference provides unparalleled opportunities to network and engage on key policy issues. The State of the Net Conference is the largest information technology policy conference in the U.S. and the only one with over 50 percent Congressional staff and government policymakers in attendance. The State of the Net Conference is the only tech policy conference routinely recognized for its balanced blend of academics, consumer groups, industry and government.

        Here's an example presentation: First Sale and No Resale: Could SCOTUS and the Internet Redefine Content Ownership? .

        | Scholarly Electronic Publishing Weblog | Digital Scholarship |

        Be Sociable, Share!

          "Access and the Public Domain"

          Posted in Copyright, Public Domain on February 12th, 2013

          Randal C. Picker has self-archived "Access and the Public Domain" in SSRN.

          Here's an excerpt:

          Section I of the paper sketches out the emerging public domain. Section II considers three conceptual questions for structuring use of the public domain focusing on the extent to which the public domain should be viral; on whether we should insist that the public domain be accessed only through the original artifacts embodying it; and on whether private appropriability incentives for distribution of public domain scans match overall social interests. Section III turns to the tools for restricting use of the public domain, to copyright, contract, the DMCA and the CFAA. Each of these matters for access to the public domain and for competition over it. Section IV considers one narrow question regarding the relationship between copyright's deposit requirement and a truly public domain, while the last section briefly concludes the paper.

          | Digital Scholarship Overview | Digital Scholarship |

          Be Sociable, Share!

            "Response to Library of Congress NOI on Orphan Works and Mass Digitization"

            Posted in Copyright, Mass Digitizaton on February 11th, 2013

            Denise Troll Covey has self-archived "Response to Library of Congress NOI on Orphan Works and Mass Digitization" in SelectedWorks.

            Here's an excerpt:

            Responding on behalf of Carnegie Mellon University, we appreciate the commitment of Congress and the U.S. Copyright Office to solving the orphan works problem and the opportunity to address the issues articulated in the Notice of Inquiry. As noted in the 2006 Report on Orphan Works, the orphan works problem is significant, pervasive, and thwarting the purpose of copyright.

            Carnegie Mellon's response addresses the primary questions posed in the Notice of Inquiry. The discussion proceeds as follows:

            • Current state of play for solving the orphan works problem
            • Principles that should shape the solution
            • Proposal for a two-pronged solution that might be palatable at this time

            | Digital Scholarship Overview | Digital Scholarship |

            Be Sociable, Share!

              EFF and Public Knowlege’s Comments on Copyright Office’s Orphan Works Inquiry

              Posted in Copyright, Digital Copyright Wars, Mass Digitizaton, Publishing on February 7th, 2013

              The Electronic Frontier Foundation and Public Knowledge have released their comments on the Notice of Inquiry by the Copyright Office for comments regarding orphan works, Docket No. 2012-12.

              Here's an excerpt:

              A range of options, none of them exclusive, can alleviate the problems created by the prevalence of orphan works. Even in the absence of more systemic change that can stem the growing number of works whose copyright information disappears into obscurity, the application of fair use and legislative work on damages reduction (both for orphan works specifically and for good faith fair uses generally) can allow a variety of users to bring a variety of works to the public. Mass digitization projects promise to be a part of that process, and should be able to proceed in many cases under current law. However, more ambitious plans for broader, publicly available MDPs could be incentivized to serve the public interest with additional damages limitations, attended by public interest conditions. We

              | Google Books Bibliography (XHTML website; over 320 entries) | Digital Scholarship |

              Be Sociable, Share!

                "Orphan Works and the Search for Rightsholders: Who Participates in a ‘Diligent Search’ under Present and Proposed Regimes?"

                Posted in Copyright on February 4th, 2013

                David R. Hansen, Gwen Hinze, and Jennifer Urban have self-archived "Orphan Works and the Search for Rightsholders: Who Participates in a 'Diligent Search' under Present and Proposed Regimes?" in SSRN.

                Here's an excerpt:

                Regardless of the specific formulation, the search for rightsholders (or conversely, the confirmation that no rightsholder can be located) is an integral component of almost every orphan works proposal. This paper examines in detail the core schemes for identifying rightsholders among the leading orphan works regimes and proposals. Although these schemes differ across many variables, three factors predominate: (1) who is expected to participate in the search process, (2) the nature and extent of the required search generally; and (3) specifically what types of resources, tools, registries or other information-sharing mechanisms are required or allowed.

                This paper compares existing proposals' approaches with respect to the first factor: who participates in a search? A subsequent paper will focus on the second and third factors.

                | Digital Scholarship Overview | Digital Scholarship |

                Be Sociable, Share!

                  Surprise Brief by Justice Department in Georgia State University E-Reserves Case

                  Posted in Copyright, Digital Copyright Wars, E-Reserves, Libraries on February 4th, 2013

                  The Justice Department has filed a brief in the Cambridge University Press et al. v. Patton et al. case by for a 21-day extension in which to "to file any amicus brief in support of appellants or in support of neither party."

                  Here's an excerpt from "Obama Administration Considers Joining Publishers in Fight to Stamp out Fair Use at Universities":

                  In digging into this, we've heard from a few sources that it's actually the US Copyright Office that has asked the DOJ to weigh in on the side of the publishers and against the interests of public universities and students.

                  Read more about it at "Publishers and Library Groups Spar in Appeal to Ruling on Electronic Course Reserves," "Unwelcome Intervention?," and "U.S. Attorneys May Weigh in On GSU E-Reserves Case."

                  | Google Books Bibliography (XHTML website; over 320 entries) | Digital Scholarship |

                  Be Sociable, Share!

                    What’s the Deal with Copyright and 3D Printing?

                    Posted in Copyright, Reports and White Papers on January 31st, 2013

                    Public Knowledge has released What's the Deal with Copyright and 3D Printing?

                    Here's an excerpt from the announcement:

                    Today Public Knowledge is happy to announce a new whitepaper: What's the Deal with Copyright and 3D Printing? This paper is something of a follow up to our previous 3D printing whitepaper It Will Be Awesome if They Don't Screw It Up: 3D Printing, Intellectual Property, and the Fight Over the Next Great Disruptive Technology. Unlike It Will Be Awesome, which focused on the broad connection between intellectual property law and 3D printing, What's the Deal? takes a deeper dive into the relationship between copyright and 3D printing. . . .

                    Of course, the first step in understanding what is not protected by copyright is recognizing what is protected by copyright. What's the Deal? is designed to help mark those boundaries and draw focus to the hard — and easy — questions that the boundaries raise.

                    | Reviews of Digital Scholarship Publications | Digital Scholarship |

                    Be Sociable, Share!

                      "The Authors Guild v. Hathitrust: A Way Forward for Digital Access to Neglected Works in Libraries"

                      Posted in Copyright, Digital Copyright Wars, E-Books, Mass Digitizaton, Publishing on January 30th, 2013

                      James Aaron has self-archived "The Authors Guild v. Hathitrust: A Way Forward for Digital Access to Neglected Works in Libraries" in SSRN.

                      Here's an excerpt:

                      This Comment begins by describing the HathiTrust Orphan Works Project and what it renames the neglected works problem. Next, it examines the legality of the project under current copyright law, focusing mainly on fair use under section 107, and concludes that it is unclear whether the project violates copyright law. Finally it analyzes whether this result fits the policy goals of copyright, and because it does not, proposes both legislative and judicial changes to copyright law to make it clear that in the proper circumstances, nonprofit, educational uses of neglected works do not violate copyright law.

                      | Google Books Bibliography (XHTML website; over 320 entries) | Digital Scholarship |

                      Be Sociable, Share!

                        "Open-Sourcing the Global Academy: Aaron Swartz’s Legacy"

                        Posted in Copyright, Digital Copyright Wars, Open Access, Publishing on January 30th, 2013

                        Rebecca Gould has self-archived "Open-Sourcing the Global Academy: Aaron Swartz's Legacy" in SSRN.

                        Here's an excerpt:

                        This essay examines Swartz's Open Access vision, and traces the challenges he faced in carrying out his dream. Arguing that Open Access is the future of scholarship in the digital age, I outline concrete strategies for bringing Swartz's dream to fruition.

                        | Scholarly Electronic Publishing Weblog | Digital Scholarship |

                        Be Sociable, Share!

                          Page 10 of 71« First...89101112...203040...Last »



                          Digital Scholarship

                          Copyright © 2005-2015 by Charles W. Bailey, Jr.

                          Creative Commons License
                          This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International license.