Archive for the 'Copyright' Category

"Copyright as Information Policy: Google Book Search from a Law and Economics Perspective"

Posted in Copyright, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on September 24th, 2009

Douglas Lichtman, Professor of Law at the UCLA School of Law, has self-archived "Copyright as Information Policy: Google Book Search from a Law and Economics Perspective" in SSRN.

Here's an excerpt:

The copyright system has long been understood to play a critical role when it comes to the development and distribution of creative work. Copyright serves a second fundamental purpose, however: it encourages the development and distribution of related technologies like hardware that might be used to duplicate creative work and software that can manipulate it. When it comes to issues of online infringement, then, copyright policy serves two goals, not one: protect the incentives copyright has long served to provide authors, and at the same time facilitate the continued emergence of innovative Internet services and equipment. In this Chapter, I use the Google Book Search litigation as a lens through which to study copyright law’s efforts to serve these two sometimes-competing masters. The Google case is an ideal lens for this purpose because both the technology implications and the authorship implications are apparent. With respect to the technology, Google tells us that the only way for it to build its Book Search engine is to have copyright law excuse the infringement that is today by design part of the project. With respect to authorship, copyright owners are resisting that result for fear that the infringement here could significantly erode both author control and author profitability over the long run. I myself am optimistic that copyright law can and will balance these valid concerns. The Chapter explains how, discussing not only the formal legal rules but also the economic intuitions behind them.

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    Pamela Samuelson: "DOJ Says No to Google Book Settlement"

    Posted in Copyright, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on September 22nd, 2009

    In "DOJ Says No to Google Book Settlement," noted copyright expert Pamela Samuelson examines the U.S. Department of Justice's Google Book Search Settlement filing.

    Here's an excerpt:

    Among the most significant recommendations DOJ made for modifying the Proposed Settlement is one to ameliorate the risk of market foreclosure as to institutional subscriptions. DOJ suggests the parties should find a way to "provide some mechanism by which Google's competitors could gain comparable access to orphan works." That is, DOJ is recommending that Google, the Authors Guild and the publishers find a way to let firms such as and Microsoft get comparable licenses to out-of-print books, particularly to orphans. Google has previously denied that it was possible to include competitors in any license granted through the settlement. It will be interesting to see if the litigants want the settlement badly enough to conjure up a way to extend the license to firms other than Google.

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      Comments on U.S. Copyright Office's "Mandatory Deposit of Published Electronic Works Available Only Online" Proposal

      Posted in Copyright, Publishing on September 22nd, 2009

      Comments on the U.S. Copyright Office's "Mandatory Deposit of Published Electronic Works Available Only Online" proposal are available, including comments by the American Library Association and the Association of Research Libraries.

      Here's the Copyright Office's description of the proposal:

      The Copyright Office of the Library of Congress is proposing to amend its regulations governing mandatory deposit of electronic works published in the United States and available only online.

      The amendments would establish that such works are exempt from mandatory deposit until a demand for deposit of copies or phonorecords of such works is issued by the Copyright Office. They would also set forth the process for issuing and responding to a demand for deposit, amend the definition of a "complete copy" of a work for purposes of mandatory deposit of online—only works, and establish new best edition criteria for electronic serials available only online. The Copyright Office seeks public comment on these proposed revisions.

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        Litman on "Real Copyright Reform"

        Posted in Copyright, Digital Copyright Wars on September 21st, 2009

        Jessica Litman, John F. Nickoll Professor of Law at the University of Michigan Law School, has self-archived "Real Copyright Reform" at SSRN.

        Here's the abstract:

        A copyright system is designed to produce an ecology that nurtures the creation, dissemination and enjoyment of works of authorship. When it works well, it encourages creators to generate new works, assists intermediaries in disseminating them widely, and supports readers, listeners and viewers in enjoying them. If the system poses difficult entry barriers to creators, imposes demanding impediments on intermediaries, or inflicts burdensome conditions and hurdles on readers, then the system fails to achieve at least some of its purposes. The current U.S. copyright statute is flawed in all three respects. In this article, I explore how the current copyright system is failing its intended beneficiaries. The foundation of copyright law's legitimacy, I argue, derives from its evident benefits for creators and for readers. That foundation is badly cracked, in large part because of the perception that modern copyright law is not especially kind to either creators or to readers; instead, it concentrates power in the hands of the intermediaries who control the conduits between creators and their audience. Those intermediaries have recently used their influence and their copyright rights to obstruct one another's exploitation of copyrighted works. I argue that the concentration of copyright rights in the hands of intermediaries made more economic sense in earlier eras than it does today. The key to real copyright reform, I suggest, is to reallocate copyright's benefits to give more rights to creators, greater liberty to readers, and less control to copyright intermediaries.

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          U.S. Department of Justice Files Objection to Google Book Search Settlement

          Posted in Copyright, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on September 20th, 2009

          The U.S. Department of Justice has filed an objection to the Google Book Search Settlement.

          Here's an excerpt:

          Nonetheless, the breadth of the Proposed Settlement—especially the forward-looking business arrangements it seeks to create—raises significant legal concerns. As a threshold matter, the central difficulty that the Proposed Settlement seeks to overcome—the inaccessibility of many works due to the lack of clarity about copyright ownership and copyright status—is a matter of public, not merely private, concern. A global disposition of the rights to millions of copyrighted works is typically the kind of policy change implemented through legislation, not through a private judicial settlement. If such a significant (and potentially beneficial) policy change is to be made through the mechanism of a class action settlement (as opposed to legislation), the United States respectfully submits that this Court should undertake a particularly searching analysis to ensure that the requirements of Federal Rule of Civil Procedure 23 ("Rule 23") are met and that the settlement is consistent with copyright law and antitrust law. As presently drafted, the Proposed Settlement does not meet the legal standards this Court must apply.

          This Memorandum sets forth the concerns of the United States with respect to the current version of the Proposed Settlement; these concerns may be obviated by the parties' subsequent changes to the agreement. Commenters' objections to the Proposed Settlement fall into three basic categories: (1) claims that the Proposed Settlement fails to satisfy Rule 23; (2) claims that the Proposed Settlement would violate copyright law; and (3) claims that the Proposed Settlement would violate antitrust law. In the view of the United States, each category of objection is serious in isolation, and, taken together, raise cause for concern. . . .

          This Court should reject the Proposed Settlement in its current form and encourage the parties to continue negotiations to modify it so as to comply with Rule 23 and the copyright and antitrust laws.

          Read more about it at "Do Justice Department Objections Spell Doom for Google's Online Book Deal?," "DOJ: Court Should Reject Google Book Search Settlement," and "Government Urges Changes to Google Books Deal."

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            NPR Interview: "Who Should Control The Virtual Library?"

            Posted in Copyright, E-Books, Google and Other Search Engines, Mass Digitizaton, Privacy, Publishing on September 16th, 2009

            NPR has released a digital audio recording and transcript of an interview with Daphne Keller (Google), Fred Von Lohmann (EFF), and Jessica Vascellaro (Wall Street Journal) about the Google Book Search Settlement.

            Here's an excerpt:

            [Von Lohmann] Unlike a bookstore or even a library, because these books will live online on Google's computers, where you will be accessing them, Google will have the ability to watch every page you read, how long you spend on any particular page, what page you read a minute ago and what page you're going to read a week from now. It really is as though every book comes with a surveillance camera that comes home with you. So we think it's really critical that this arrangement builds in real strong privacy protections because our nation's bookstores and libraries have fought hard for that, and we think we should accept no less online.

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              University of Michigan Press Opts in to Google Settlement

              Posted in Copyright, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing, University Presses on September 16th, 2009

              The University of Michigan Press has opted in to the Google Book Search Settlement.

              Here's an excerpt from the announcement:

              University of Michigan Press has decided to opt in to the terms of the Settlement and is beginning the process of claiming books digitized by Google under its Book Search program. We will claim all titles under copyright on behalf of our authors.

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                Moral Panics and the Copyright Wars

                Posted in Copyright, Digital Copyright Wars on September 15th, 2009

                Noted copyright expert William Patry, Senior Copyright Counsel at Google and former copyright counsel to the U.S. House of Representatives Committee on the Judiciary, has published Moral Panics and the Copyright Wars with Oxford University Press. Patry is also blogging on this topic at Moral Panics and the Copyright Wars. (His well-regarded previous blog was The Patry Copyright Blog.)

                Here's an excerpt from the press release:

                In Moral Panics And The Copyright Wars, Patry details the path that we have taken to get to our current misunderstanding of copyright laws. The most prolific scholar of copyright in history and the author of an eight-volume treatise on copyright and a separate treatise on the fair use doctrine, Patry argues that the cause of these copyright wars throughout history can be largely attributed to words—specifically, metaphors. Patry describes different kinds of metaphors, using them to further illustrate the ways that copyright laws have come to be unnecessarily expanded and misunderstood. For example, nowadays the term "pirate" is used in many instances to describe a type of copyright violation. Patry writes that it is the repetition of the pirate metaphor that makes the term stick, although the metaphor may be used incorrectly or may even be entirely false. This repetition of such metaphors causes whatever company or individual that has come to be associated with the word "pirate" to always be attached to the negative traits associated with a "pirate." This is just one of the ways that Patry shows the influence that words have had in negatively expanding copyright laws as well as causing the public, those who the laws are meant to help, to misunderstand them.

                Patry contends that it has been this metaphoric language that has led to poor business decisions and obscured copyright law's true, public purpose. He concludes that calls for strong copyright laws, just like calls for weak copyright laws, miss the point entirely: the only laws we need are effective laws, laws that further the purpose of encouraging the creation of new works and learning—and that bring respect back to our copyright process.

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                  Defining "Noncommercial": A Study of How the Online Population Understands "Noncommercial Use"

                  Posted in Copyright, Creative Commons/Open Licenses on September 15th, 2009

                  The Creative Commons has released Defining "Noncommercial": A Study of How the Online Population Understands "Noncommercial Use".

                  Here's an excerpt:

                  In 2008-09, Creative Commons commissioned a study from a professional market research firm to explore understandings of the terms"commercial us" and "noncommercial use" among Internet users when used in the context of content found online.

                  The empirical findings suggest that creators and users approach the question of noncommercial use similarly and that overall, online U.S. creators and users are more alike than different in their understanding of noncommercial use. Both creators and users generally consider uses that earn users money or involve online advertising to be commercial, while uses by organizations, by individuals, or for charitable purposes are less commercial but not decidedly noncommercial. Similarly, uses by for-profit companies are typically considered more commercial. Perceptions of the many use cases studied suggest that with the exception of uses that earn users money or involve advertising—at least until specific case scenarios are presented that disrupt those generalized views of commerciality—there is more uncertainty than clarity around whether specific uses of online content are commercial or noncommercial.

                  Uses that are more difficult to classify as either commercial or noncommercial also show greater (and often statistically significant) differences between creators and users. As a general rule, creators consider the uses studied to be more noncommercial (less commercial) than users. For example, uses by a not-for-profit organization are generally thought less commercial than uses by a for-profit organization, and even less so by creators than users. The one exception to this pattern is in relation to uses by individuals that are personal or private in nature. Here, it is users (not creators) who believe such uses are less commercial.

                  The most notable differences among subgroups within each sample of creators and users are between creators who make money from their works, and those who do not, and between users who make money from their uses of others' works, and those who do not. In both cases, those who make money generally rate the uses studied less commercial than those who do not make money. The one exception is, again, with respect to personal or private uses by individuals: users who make money consider these uses more commercial than those who do not make money.

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                    ARL Releases "Summary on House Committee on the Judiciary Hearing: 'Competition and Commerce in Digital Books' (Sept. 10, '09)"

                    Posted in Copyright, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on September 14th, 2009

                    The Association of Research Libraries has released "Summary on House Committee on the Judiciary Hearing: 'Competition and Commerce in Digital Books' (Sept. 10, '09)."

                    Here's an excerpt:

                    The panel of witnesses was evenly divided on these issues, with four unequivocally in favor of the settlement, including representatives from Google and the Authors Guild. Three witnesses were unequivocally opposed, including Register of Copyrights Marybeth Peters and a representative from The eighth witness, law professor Randall Picker of the University of Chicago, was ambivalent and suggested several changes that he felt would cure potential problems with the Settlement. A complete list of witnesses appears on the last page of this summary, with hyperlinks to the written testimony of each witness.

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                      "Looking for Fair Use in the DMCA's Safety Dance"

                      Posted in Copyright on September 13th, 2009

                      Ira S. Nathenson, Assistant Professor of Law at St. Thomas University, has self-archived "Looking for Fair Use in the DMCA's Safety Dance" at SSRN.

                      Here's an excerpt:

                      Like a ballet, the notice-and-take-down provisions of the Digital Millennium Copyright Act ('DMCA') provide complex procedures to obtain take-downs of online infringement. Copyright owners send notices of infringement to service providers, who in turn remove claimed infringement in exchange for a statutory safe harbor from copyright liability. But like a dance meant for two, the DMCA is less effective in protecting the 'third wheel,' the users of internet services. Even Senator John McCain—who in 1998 voted for the DMCA—wrote in exasperation to YouTube after some of his presidential campaign videos were removed due to take-downs. McCain asked YouTube to review take-downs targeting campaign videos before removing them. Unsurprisingly, YouTube declined in fear of losing its safe harbor.

                      This Article does not adopt McCain's suggestion that service providers engage in individualized review of campaign take-downs. But this Article takes extremely seriously an assumption underlying McCain's request, namely, that fair use might be better protected by the DMCA as it is currently written. This Article puts forth a 'fair-use friendly' way of reading the DMCA to better protect users of online services. As a starting point, as noted by the court in Lenz v. Universal Music, copyright owners must consider fair and other non-infringing uses before sending take-down notices. Expanding upon Lenz, this Article examines the structure of the Copyright Act and broader principles of procedural fairness, concluding that permitting copyright owners to obtain removal of fairly used materials would accomplish de facto ex parte seizures of speech. Accordingly, copyright owners must "stop and think" before sending take-downs.

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                        Digital Video: Google's Chief Legal Officer Testifies at Hearing on "Competition and Commerce in Digital Books"

                        Posted in Copyright, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on September 13th, 2009

                        A digital video of David C. Drummond, Senior Vice President of Corporate Development and Chief Legal Officer at Google, testifying at the House Judiciary Committee hearing on "Competition and Commerce in Digital Books" is available on YouTube.

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