Archive for the 'Copyright' Category

"The Long and Winding Road to the Google Books Settlement"

Posted in Copyright, Digital Copyright Wars, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on February 2nd, 2010

Jonathan Band has published "The Long and Winding Road to the Google Books Settlement" in The John Marshall Review of Intellectual Property Law.

Here's an excerpt:

In its Library Project, Google is scanning millions of books from the world's leading research libraries to include in a searchable database. This scanning has occurred without the copyright owners' authorization, leading to the class action copyright infringement lawsuit, Authors Guild v. Google, Inc. The central legal issue in the litigation is whether copyright law's fair use doctrine provides Google with a defense against the authors' claims. Ultimately, the parties reached a settlement. The proposed Settlement Agreement is an extremely complex document which, if approved by the court, will govern the future of the Google Library Project. It creates a mechanism that allows Google to scan and display the full text of millions of books. In exchange, Google will pay fees to each book's rightsholder. The proposed settlement has precipitated a heated public debate over competition concerns, privacy, intellectual freedom, and the rights of authors and publishers. This article traces the history of the Google Library Project and discusses in-depth the original Google Library Project, the litigation, the original Settlement Agreement, debate concerning the approval of the Settlement Agreement, and the Amended Settlement Agreement.

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    Copyright Office Issues Interim Regulation Giving U.S. Online-Only Works Deposit Exemption

    Posted in Copyright on January 27th, 2010

    The U.S. Copyright Office has issued an interim regulation giving U.S. online-only works a copyright deposit exemption.

    Here's an excerpt from the announcement:

    The Copyright Office of the Library of Congress is adopting an interim regulation governing mandatory deposit of electronic works published in the United States and available only online. The regulation establishes that online-only works are exempt from mandatory deposit until a demand for deposit of copies or phonorecords of such works is issued by the Copyright Office. It also states that categories of online-only works subject to demand will first be identified in the regulations, and names electronic serials as the first such category for which demands will issue. In addition, the regulation sets forth the process for issuing and responding to a demand for deposit, amends the definition of a "complete copy" of a work for purposes of mandatory deposit of online-only works, and establishes new best edition criteria for electronic serials available only online.

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      Michael Geist Overviews Anti-Counterfeiting Trade Agreement (ACTA)

      Posted in Copyright, Digital Copyright Wars on January 27th, 2010

      Michael Geist has written a series of posts that overview the Anti-Counterfeiting Trade Agreement (ACTA).

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        Lessig: "For the Love of Culture: Google, Copyright, and Our Future"

        Posted in Copyright, Digital Copyright Wars, E-Books, Google and Other Search Engines, Publishing on January 27th, 2010

        Lawrence Lessig has published "For the Love of Culture: Google, Copyright, and Our Future" in The New Republic.

        Here's an excerpt:

        There is much to praise in this settlement [Google Books Settlement]. Lawsuits are expensive and uncertain. They take years to resolve. The deal Google struck guaranteed the public more free access to free content than "fair use" would have done. Twenty percent is better than snippets, and a system that channels money to authors is going to be liked much more than a system that does not. (Not to mention that the deal is elegant and clever in ways that a contracts professor can only envy.)

        Yet a wide range of companies, and a band of good souls, have now joined together to attack the Google settlement. Some charge antitrust violations. Some fear that Google will collect information about who reads what—violating reader privacy. And some just love the chance to battle this decade's digital giant (including last decade's digital giant, Microsoft). The main thrust in almost all of these attacks, however, misses the real reason to be concerned about the future that this settlement will build. For the problem here is not just antitrust; it is not just privacy; it is not even the power that this (enormously burdensome) free library will give this already dominant Internet company. Indeed, the problem with the Google settlement is not the settlement. It is the environment for culture that the settlement will cement.

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          "Control of Museum Art Images: The Reach and Limits of Copyright and Licensing"

          Posted in Copyright, Digitization, Licenses, Museums on January 26th, 2010

          Melissa A. Brown and Kenneth D. Crews have self-archived "Control of Museum Art Images: The Reach and Limits of Copyright and Licensing" in SSRN.

          Here's an excerpt:

          Many museums and art libraries have digitized their collections of artworks. Digital imaging capabilities represent a significant development in the academic study of art, and they enhance the availability of art images to the public at large. The possible uses of these images are likewise broad. Many of these uses, however, are potentially defined by copyright law or by license agreements imposed by some museums and libraries that attempt to define allowable uses. Often, these terms and conditions will mean that an online image is not truly available for many purposes, including publication in the context of research or simple enjoyment. Not only do these terms and conditions restrict uses, they also have dubious legal standing after the Bridgeman case. This paper examines the legal premises behind claiming copyright in art images and the ability to impose license restrictions on their use.

          This paper is one outcome of a study of museum licensing practices funded by The Samuel H. Kress Foundation. This paper is principally an introduction to the relevant law in the United States and a survey of examples of museum licenses. The project is in its early stages, with the expectation that later studies will expand on this introduction and provide greater analysis of the legal complications of copyright, the public domain, and the reach of license agreements as a means for controlling the use of artwork and potentially any other works, whether or not they fall within the scope of copyright protection.

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            The Public Domain Manifesto

            Posted in Copyright, Digital Copyright Wars, Public Domain on January 24th, 2010

            COMMUNIA has released The Public Domain Manifesto and seeks organizations and individuals to sign it. The Creative Commons, James Boyle, and Lawrence Lessig are among the current signatories.

            Here's an excerpt:

            1. The Public Domain is the rule, copyright protection is the exception. Since copyright protection is granted only with respect to original forms of expression, the vast majority of data, information and ideas produced worldwide at any given time belongs to the Public Domain. In addition to information that is not eligible for protection, the Public Domain is enlarged every year by works whose term of protection expires. The combined application of the requirements for protection and the limited duration of the copyright protection contribute to the wealth of the Public Domain so as to ensure access to our shared culture and knowledge.
            2. Copyright protection should last only as long as necessary to achieve a reasonable compromise between protecting and rewarding the author for his intellectual labour and safeguarding the public interest in the dissemination of culture and knowledge. From neither the perspective of the author nor the general public do any valid arguments exist (whether historical, economic, social or otherwise) in support of an exceedingly long term of copyright protection. While the author should be able to reap the fruits of his intellectual labour, the general public should not be deprived for an overly long period of time of the benefits of freely using those works.
            3. What is in the Public Domain must remain in the Public Domain. Exclusive control over Public Domain works must not be reestablished by claiming exclusive rights in technical reproductions of the works, or using technical protection measures to limit access to technical reproductions of such works.
            4. The lawful user of a digital copy of a Public Domain work should be free to (re-)use, copy and modify such work. The Public Domain status of a work does not necessarily mean that it must be made accessible to the public. The owners of physical works that are in the Public Domain are free to restrict access to such works. However once access to a work has been granted then there ought not be legal restrictions on the re-use, modification or reproduction of these works.
            5. Contracts or technical protection measures that restrict access to and re-use of Public Domain works must not be enforced. The Public Domain status of a work guarantees the right to re-use, modify and reproduce. This also includes user prerogatives arising from exceptions and limitations, fair use and fair dealing, ensuring that these cannot be limited by contractual or technological means.
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              Jammie Thomas-Rasset's File Sharing Fine Drops to $2,250 per Song from $80,000 per Song

              Posted in Copyright, Digital Copyright Wars, P2P File Sharing on January 24th, 2010

              Michael J. Davis, Chief Judge of the Minnesota United States District Court, has ruled that Jammie Thomas-Rasset's file sharing fine be reduced to $2,250 per song from $80,000 per song.

              Here's an excerpt from the ruling:

              After long and careful deliberation, the Court grants in part and denies in part Thomas-Rasset's motion and remits the damages award to $2,250 per song—three times the statutory minimum. The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music. Moreover, although Plaintiffs were not required to prove their actual damages, statutory damages must still bear some relation to actual damages.

              The Court has labored to fashion a reasonable limit on statutory damages awards against noncommercial individuals who illegally download and upload music such that the award of statutory damages does not veer into the realm of gross injustice. Finding a precise dollar amount that delineates the border between the jury's wide discretion to calculate its own number to address Thomas-Rasset's willful violations, Plaintiffs' far-reaching, but nebulous damages, and the need to deter online piracy in general and the outrageousness of a $2 million verdict is a considerable task. The Court concludes that setting the limit at three times the minimum statutory damages amount in this case is the most reasoned solution.

              This award constitutes the maximum amount a jury could reasonably award to both compensate Plaintiffs and address the deterrence aspect of the Copyright Act. This reduced award is significant and harsh. It is a higher award than the Court might have chosen to impose in its sole discretion, but the decision was not entrusted to this Court. It was the jury's province to determine the award of statutory damages and this Court has merely reduced that award to the maximum amount that is no longer monstrous and shocking. Plaintiffs have seven days from the date of this Order to decide whether to accept the remittitur or request a new trial on the issue of damages.

              The Court denies Thomas-Rasset's motion for a new trial based on the admission of evidence collected by MediaSentry. It further denies her motion for a new trial based on Plaintiffs' failure to produce certified copies of the sound recordings deposited with the Copyright Office.

              Finally, the Court grants Plaintiffs' request to amend the Judgment to include a permanent injunction.

              Read more about it at "Court Reduces 'Shocking' File Sharing Award" and "Judge Slashes RIAA's $1.92 Million Fine against Minnesota Mom."

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                Updated: "Copyright Term and the Public Domain in the United States" Chart

                Posted in Copyright, Digitization, Public Domain on January 20th, 2010

                Peter Hirtle has updated his useful "Copyright Term and the Public Domain in the United States" chart as of 1/1/2010.

                Read more about it at "Copyright Term and the Public Domain in the United States—2010 Update—An Interview with Peter Hirtle."

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                  EFF: "12 Trends to Watch in 2010"

                  Posted in Copyright, Digital Copyright Wars on January 17th, 2010

                  Tim Jones has posted "12 Trends to Watch in 2010" in the Electronic Frontier Foundation's Deeplinks blog.

                  Here's an excerpt:

                  2. Books and Newspapers: .TXT is the new .MP3

                  Since 2000, the music industry has most spectacularly flailed (and failed) to combat the Net's effect on its business model. Their plans to sue, lock-up and lobby their way out of their problem did nothing to turn the clock back, but did cause serious damage to free speech, innovation and fair use.

                  These days, the book and newspaper industries are similarly mourning the Internet's effect on their bottom line. In 2009, Rupert Murdoch changed the tone of the debate when he called those who made fair use of his papers' content "thieves". We think 2010 and beyond will see others in the print world attempt to force that view, and break the fair use doctrine by lobbying to change accepted copyright law, challenging it in the courts, or by placing other pressures on intermediaries.

                  A cluster of similar battles around user control are also gathering around e-reader products like Kindle and Google Book Search, many of which rewrite the rules for book ownership and privacy wholesale.

                  So, in 2010, will the printed word step smartly into the digital future, or will it continue to stay stuck in the denial and bargaining phase that dominated digital music's lost decade?

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                    Google D.C. Talk: ACTA—The Global Treaty That Could Reshape the Internet

                    Posted in Copyright, Digital Copyright Wars on January 14th, 2010

                    The Google Public Policy channel has released Google D.C. Talk: ACTA—The Global Treaty That Could Reshape the Internet. ACTA stands for the Anti-Counterfeiting Trade Agreement, a very important intellectual property rights treaty that is being secretly negotiated.

                    Here's an excerpt from the announcement:

                    The panel will tackle important questions like: Will ACTA preserve the existing balance in intellectual property laws, providing not just enforcement for copyright holders but also appropriate exceptions for technology creators and users? Will it undermine the legal safe harbors that have allowed virtually every Internet service to come into existence? And will it encourage governments to endorse "three strikes" penalties that would take away a user's access to the Internet?

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                      "Google Book Search and the Future of Books in Cyberspace"

                      Posted in Copyright, Digital Copyright Wars, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on January 13th, 2010

                      Pamela Samuelson has self-archived "Google Book Search and the Future of Books in Cyberspace" in SSRN.

                      Here's an excerpt:

                      The Google Book Search (GBS) initiative once promised to test the bounds of fair use, as the company started scanning millions of in-copyright books from the collections of major research libraries. The initial goal of this scanning was to make indexes of the books’ contents and to provide short snippets of book contents in response to pertinent search queries. The Authors Guild and five trade publishers sued Google in the fall of 2005 charging that this scanning activity was copyright infringement. Google defended by claiming fair use. Rather than litigating this important issue, however, the parties devised a radical plan to restructure the market for digital books, which was announced on October 28, 2008, by means of a class action settlement of the lawsuits. Approval of this settlement would give Google—and Google alone—a license to commercialize all out-of-print books and to make up to 20 per cent of their contents available in response to search queries (unless rights holders expressly forbade this).

                      This article discusses the glowingly optimistic predictions about the future of books in cyberspace promulgated by proponents of the GBS settlement and contrasts them with six categories of serious reservations that have emerged about the settlement. These more pessimistic views of GBS are reflected in the hundreds objections and numerous amicus curiae briefs filed with the court responsible for determining whether to approve the settlement. GBS poses risks for publishers, academic authors and libraries, professional writers, and readers as well as for competition and innovation in several markets and for the cultural ecology of knowledge. Serious concerns have also been expressed about the GBS settlement as an abuse of the class action process because it usurps legislative prerogatives. The article considers what might happen to the future of books in cyberspace if the GBS deal is not approved and recommends that regardless of whether the GBS settlement is approved, a consortium of research libraries ought to develop a digital database of books from their collections that would enhance access to books without posing the many risks to the public interest that the GBS deal has created

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                        Objections to the Google Books Settlement and Responses in the Amended Settlement: A Report

                        Posted in Copyright, Digital Copyright Wars, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on December 10th, 2009

                        The Public-Interest Book Search Initiative at the New York Law School has released Objections to the Google Books Settlement and Responses in the Amended Settlement: A Report.

                        Here's an excerpt:

                        This report collects information about the objections raised to the original proposed settlement in the Authors Guild v. Google litigation. We identified 76 distinct issues, which we grouped into 11 categories. This report briefly summarizes each issue, provides an illustrative quotation from a filing with the court, and indicates any related changes in the amended settlement. . . .

                        This report is descriptive, not evaluative. Inclusion of an issue means only that at least one party made the full argument in a filing to the court. It does not represent any judgment about whether the objection accurately characterizes the settlement or the underlying facts. Nor does it represent any judgment about the legal merits of the objection. Our classification and ordering of the objections are meant as an aid to the reader, not substantive commentary. Our choice of representative quotations is not meant as an endorsement of any particular filer’s arguments. Similarly, inclusion of changes from the amended settlement does not represent a judgment about whether the changes address the relevant objection.

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