Archive for the 'Digital Copyright Wars' Category

"Suing HathiTrust"

Posted in Copyright, Digital Copyright Wars, Mass Digitizaton, Publishing on October 29th, 2012

C.E. Petit has published "Suing HathiTrust" in Scrivener's Error: Warped Weft.

Here's an excerpt:

This is an initial review only of the third segment of the Google BookScan lawsuits, generally known as the "HathiTrust suit" and formally known as Authors' Guild, Inc. v. HathiTrust, No. 11-6351 (S.D.N.Y.) (Baer, J.). The first two segments were the Authors' Guild's lawsuit against Google, and the publishers' lawsuit against Google (which were later consolidated… and at this writing may be severing). As a side note, the HathiTrust matter was referred to Judge Chin for further consolidation with the existing GBS suits, but was rejected as not sufficiently related… and inconsistent with Judge Chin's elevation to the Second Circuit, although the rejection did not emphasize that issue.

| A Look Back at 23 Years as an Open Access Publisher | Digital Scholarship |

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    No Ripping: Copyright Office Issues "Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies"

    Posted in Copyright, Digital Copyright Wars on October 26th, 2012

    The U.S. Copyright Office has issued the final rule for the "Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies."

    Of particular interest is section "IV. Classes Considered But Not Recommended, D. Motion Pictures and Other Works on DVDs and Other Media—Space Shifting," which starts on page 58.

    Here's an excerpt:

    Proponent Public Knowledge stated a desire to move lawfully acquired motion pictures on DVDs to consumer electronic devices, such as tablet computers and laptop computers, that lack DVD drives. It asserted that consumers' inability to play lawfully acquired DVDs on the newest devices adversely affected noninfringing uses of the works contained on DVDs, and that a reasonable solution was for these consumers to copy the motion pictures into a format that could be viewed on the new devices. . . .

    Public Knowledge cited RIAA v. Diamond Multimedia Systems Inc., 180 F.3d 1072 (1999), and Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), in support of its contention that space shifting is a noncommercial personal use, and therefore a fair use. . . .

    The Register recognized that there is significant consumer interest in the proposed exemption. Proponents, however, had the burden of demonstrating that the requested use was noninfringing. Neither of the two key cases relied upon by proponents, however, addresses or informs the space shifting activities at issue. . . .

    The Register further observed that the law does not guarantee access to copyrighted material in a user's preferred format or technique. Indeed, copyright owners typically have the legal authority to decide whether and how to exploit new formats. The Register noted that while the law may someday evolve to accommodate some of proponents' proposed uses, more recent cases touching upon space shifting confirm that the fair use implications of various forms of space shifting are far from settled. . . .

    In urging that space shifting is a fair use, Public Knowledge characterized the copying of motion pictures for use on personal devices as a "paradigmatic noncommercial personal use" that could facilitate a transformative use. It further asserted that integrating reproductions of motion pictures from DVDs into a consumer's media management software was analogous to the integration of thumbnail images into internet search engines found to be a transformative use in Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007).

    The Register did not agree with this analysis. In her view, the incorporation of reproductions of motion pictures from DVDs into a consumer's media management software is not equivalent to the provision of public search engine functionality. Rather, it is simply a means for an individual consumer to access content for the same entertainment purpose as the original work. Put another way, it does not "add[] something new, with a further purpose or different character, altering the first with new expression, meaning," or advance criticism, comment, or any other interest enumerated in the preamble of Section 107. The Register therefore concluded that the first fair use factor did not favor a finding of fair use. The Register additionally determined that where creative works were being copied in their entirety, factors two and three also weighed against fair use, and that there was an inadequate basis in the record to conclude that the developing market for the online distribution of motion pictures would not be harmed by the proposed uses.

    Finally, the Register concluded that proponents had failed to demonstrate that the use of a reasonably priced peripheral, a different device, or an online subscription service to access and play desired content did not offer a reasonable alternative to circumvention. Accordingly, the Register was not persuaded that the inability to engage in the space shifting activities described by proponents is having a substantial adverse impact on consumers' ability to make noninfringing uses of copyrighted works.

    Read more about it at "United States Copyright Office: Ripping Is Illegal."

    | Reviews of Digital Scholarship Publications | Digital Scholarship |

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      ALA Joins Owners’ Rights Initiative

      Posted in ALA, Copyright, Digital Copyright Wars, Publishing on October 23rd, 2012

      ALA has joined the Owners' Rights Initiative.

      Here's an excerpt from the announcement:

      Today, the American Library Association announced that it has joined—as a founding member—the Owners' Rights Initiative (ORI)—a coalition of retailers, libraries, educators, Internet companies and associations working to protect ownership rights in the United States.

      The coalition was formed to champion "first-sale rights," or ownership rights, as the issue will be taken up by the U.S. Supreme Court in the case of Kirtsaeng vs. Wiley & Sons, Inc. on October 29, 2012. The Supreme Court's decision could have adverse consequences for libraries and call into question libraries' abilities to lend books and materials that were manufactured overseas.

      | Reviews of Digital Scholarship Publications | Digital Scholarship |

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        "Brief of Digital Humanities and Law Scholars as Amici Curiae in Authors Guild v. Google"

        Posted in Copyright, Digital Copyright Wars, Digital Humanities, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on October 21st, 2012

        Matthew L. Jockers, Matthew Sag, and Jason Schultz have self-archived "Brief of Digital Humanities and Law Scholars as Amici Curiae in Authors Guild v. Google" in SSRN.

        Here's an excerpt:

        The brief argues that, just as copyright law has long recognized the distinction between protection for an author's original expression (e.g., the narrative prose describing the plot) and the public's right to access the facts and ideas contained within that expression (e.g., a list of characters or the places they visit), the law must also recognize the distinction between copying books for expressive purposes (e.g., reading) and nonexpressive purposes, such as extracting metadata and conducting macroanalyses. We amici urge the court to follow established precedent with respect to Internet search engines, software reverse engineering, and plagiarism detection software and to hold that the digitization of books for text-mining purposes is a form of incidental or intermediate copying to be regarded as fair use as long as the end product is also nonexpressive or otherwise non-infringing.

        | Google Books Bibliography | Digital Scholarship |

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          Hathitrust Wins Authors Guild, Inc. et al. v. Hathitrust et al. Case

          Posted in Copyright, Digital Copyright Wars, Mass Digitizaton, Publishing on October 10th, 2012

          James Grimmelmann reports in "HathiTrust Wins" that Hathitrust has won the Authors Guild, Inc. et al. v. Hathitrust et al. case .

          Here's an excerpt:

          On every substantive copyright issue, HathiTrust won:

          • Section 108 on library privileges doesn't limit the scope of fair use.
          • A search index and access for the print-disabled are both fair uses.
          • Search indexing is a transformative use.
          • The libraries aren't making commercial uses, even though they partnered with Google to get the scans.
          • The plaintiffs haven't proven that HahiTrust is creating any security risks.
          • There is no market for scanning and print-disabled access, nor is one likely to develop.
          • UM is required under the ADA to provide equal access to the print-disabled, and is allowed to under Section 121 of the Copyright Act.

          | Reviews of Digital Scholarship Publications | Digital Scholarship |

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            ACTA—The Ethical Analysis of a Failure, and Its Lessons

            Posted in Copyright, Digital Copyright Wars, Reports and White Papers, Scholarly Communication on October 10th, 2012

            The European Centre for International Political Economy has released ACTA—The Ethical Analysis of a Failure, and Its Lessons.

            Here's an excerpt:

            In this article, I wish to contribute to the post-ACTA debate by proposing a specific analysis of the ethical reasons why ACTA failed, and what we can learn from them. I argue that five kinds of objections—namely, secret negotiations, lack of consultation, vagueness of formulation, negotiations outside any international body, and the creation of a new governing body outside already existing forums—had only indirect ethical implications. This takes nothing away from their seriousness but it does make them less compelling, because agreements should be evaluated, ethically, for what they are, rather than for the alleged reasons why they are being proposed. I then argue that ACTA would have caused three ethical problems: an excessive and misplaced kind of responsibility, a radical decrease in freedom of expression, and a severe reduction in information privacy. I conclude by indicating three lessons that can help us in shaping ACTA 2.

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

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              Google and Publishers Settle Seven-Year-Old Copyright Lawsuit over Google Library Project

              Posted in Copyright, Digital Copyright Wars, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on October 4th, 2012

              Google and the Association of American Publishers have settled the copyright lawsuit over Google Library Project. The related Authors Guild lawsuit has not been settled.

              Here's an excerpt from the Google press release:

              The agreement settles a copyright infringement lawsuit filed against Google on October 19, 2005 by five AAP member publishers. As the settlement is between the parties to the litigation, the court is not required to approve its terms.

              The settlement acknowledges the rights and interests of copyright-holders. US publishers can choose to make available or choose to remove their books and journals digitized by Google for its Library Project. Those deciding not to remove their works will have the option to receive a digital copy for their use.

              Apart from the settlement, US publishers can continue to make individual agreements with Google for use of their other digitally-scanned works. . . .

              Google Books allows users to browse up to 20% of books and then purchase digital versions through Google Play. Under the agreement, books scanned by Google in the Library Project can now be included by publishers.

              See also the AAP press release.

              | Google Books Bibliography | Digital Scholarship |

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                European Parliament Passes Orphan Works Bill

                Posted in Copyright, Digital Copyright Wars, Legislation and Government Regulation, Libraries on September 13th, 2012

                The European Parliament has passed an orphan works bill.

                Here's an excerpt from the press release:

                Under the new rules, a work would be deemed to be "orphan" if a "diligent" search made in good faith failed to identify or locate the copyright holder. The legislation lays down criteria for carrying out such searches.

                Works granted orphan status would be then be made public, for non-profit purposes only, through digitisation. A work deemed to be "orphan" in any one Member State would then qualify as "orphan" throughout the EU. This would apply to any audiovisual or printed material, including a photograph or an illustration embedded in a book, published or broadcast in any EU country.

                MEPs agreed that the right holder should be entitled to put an end to the orphan status of a work at any time and claim appropriate compensation for the use made of it.

                They nonetheless inserted a provision to protect public institutions from the risk of having to pay large sums to authors who show up later.

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

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