Archive for the 'Digital Copyright Wars' Category

"The U.S. Proposal for an Intellectual Property Chapter in the Trans-Pacific Partnership Agreement"

Posted in Copyright, Digital Copyright Wars, Legislation and Government Regulation on December 12th, 2012

Sean M. Flynn et al. have self-archived "The U.S. Proposal for an Intellectual Property Chapter in the Trans-Pacific Partnership Agreement" in SSRN.

Here's an excerpt:

Our ultimate conclusion is that the U.S. proposal, if adopted, would upset the current international framework balancing the interests of rights holders and the public. It would heighten standards of protection for rights holders well beyond that which the best available evidence or inclusive democratic processes support. It contains insufficient balancing provisions for users, consumers, and the public interest.

| Digital Scholarship's 2012 Publications | Digital Scholarship |

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    Authors Guild et al. v. Google: "Brief of Amici Curiae Academic Authors in Support of Defendant-Appellant and Reversal"

    Posted in Copyright, Digital Copyright Wars, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on November 20th, 2012

    Pamela Samuelson and David R. Hansen have self-archived "Brief of Amici Curiae Academic Authors in Support of Defendant-Appellant and Reversal" in SSRN.

    Here's an excerpt:

    Summary of argument: Class certification was improperly granted below because the District Court failed to conduct a rigorous analysis of the adequacy of representation factor, as Rule 23(a)(4) requires. The three individual plaintiffs who claim to be class representatives are not academics and do not share the commitment to broad access to knowledge that predominates among academics. . . .

    Academic authors desire broad public access to their works such as that which the Google Books project provides. Although the District Court held that the plaintiffs had inadequately represented the interests of academic authors in relation to the proposed settlement, it failed to recognize that pursuit of this litigation would be even more adverse to the interests of academic authors than the proposed settlement was. . . .

    In short, a "win" in this case for the class representatives would be a "loss" for academic authors. It is precisely this kind of conflict that courts have long recognized should prevent class certification due to inadequate representation. The District Court failed to adequately address this fundamental conflict in its certification order, though it was well aware of the conflict through submissions and objections received from the settlement fairness hearing through to the hearings on the most recent class certification motions. Because of that failure, the order certifying the class should be reversed

    | Google Books Bibliography | Digital Scholarship |

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      Republican Study Committee Released Progressive Copyright Brief Then Withdrew It

      Posted in Copyright, Digital Copyright Wars, Reports and White Papers on November 19th, 2012

      The Republican Study Committee released “Three Myths about Copyright Law and Where to Start to Fix it,” which attracted immediate attention due to its progressive view of copyright. Now, the brief's PDF is blank.

      However, in “Republican Report: 3 Myths of Copyright, Quashed by MPAA and RIAA,” Ash McGonigal provides a working link to the full text in addition to a recap of the situation.

      | Digital Scholarship |

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        Digital Copyright: Google Asks Court to Reverse Class Certification Decision in The Authors Guild et al. v. Google Inc.

        Posted in Copyright, Digital Copyright Wars, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on November 13th, 2012

        In a brief, Google has asked the U.S. Second Circuit Court of Appeals to reverse the class certification decision by the United States District Court for the Southern District of New York in The Authors Guild et al. v. Google Inc. case.

        Here's the brief.

        Read more about it at "Google Asks Court to Ax Book-Scanning Suit from Authors Guild."

        | Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

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          Copyright: Authors Guild Appeals HathiTrust Ruling

          Posted in Copyright, Digital Copyright Wars, E-Books, Mass Digitizaton, Publishing on November 12th, 2012

          The Authors Guild is appealing the Authors Guild, Inc. et al. v. HathiTrust et al. ruling.

          Here's an excerpt from the "LCA Issues Statement on Authors Guild's Appeal of HathiTrust Decision":

          We are deeply disappointed by the Authors Guild's decision to appeal Judge Baer's landmark opinion acknowledging the legality, and the extraordinary social value, of the HathiTrust Digital Library. Libraries have a moral and a legal obligation to provide the broadest possible access to knowledge for all of our users, and the HathiTrust and its partners have assembled an invaluable digital resource that will ensure for the first time that library print collections can be made available on equitable terms to our print-disabled users. The database also facilitates preservation and cutting-edge scholarship, all with no harm to authors or publishers. As we predicted, Judge Baer did not look kindly on the Guild's shortsighted and ill-conceived lawsuit, saying, "I cannot imagine a definition of fair use that . . . would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA." If there is an upside to this misguided appeal, it is that the Second Circuit will now have the opportunity to affirm that powerful insight.

          Read more about it at "Google Scanning Is Fair Use Says Judge" and "Unintended Consequences in the HathiTrust Case"

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

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            "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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