Archive for the 'Digital Copyright Wars' Category

"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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            Publishers Appeal Georgia State E-reserves Case

            Posted in Copyright, Digital Copyright Wars, E-Reserves, Publishing on September 11th, 2012

            Cambridge University Press, Oxford University Press, and Sage Publications have filed an appeal in the Cambridge University Press et al. v. Patton et al. case.

            Here's an excerpt from the press release announcing the publishers' intent to appeal:

            This case had the potential to mark a significant first step toward addressing the need for clarity around issues of copyright in the context of higher education, where current practices around fair use in a digital environment vary widely and could benefit from sound judicial guidance. Our hope was that the District Court would provide that guidance.

            Instead, the Court's rulings, culminating in the August injunction decision, shift radically from long-accepted fair use principles and introduce, among other errors, unsustainable policies regarding the proportion of a work not readily available for digital licensing that can be digitally copied without restriction. We have no alternative but to appeal, to protect our authors' copyrights and advocate for a balanced and workable solution.

            Read more about it at "Publishers Appeal Ruling in GSU E-Reserves Case."

            | Scholarly Electronic Publishing Bibliography 2010: "SEP [Scholarly Electronic Publishing Bibliography] is compiled with utter professionalism. It reminds me of the work of the best artisans who know not only every item that leaves their workshops, but each component used to create them—providing the ideal quality control." — Péter Jacsó ONLINE 27, no. 3 (2003): 73-76. | Digital Scholarship |

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              "Modern Technology, Leaky Copyrights and Claims of Harm: Insights from the Curious History of Photocopying"

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

              Diane Leenheer Zimmerman has self-archived "Modern Technology, Leaky Copyrights and Claims of Harm: Insights from the Curious History of Photocopying" in SSRN.

              Here's an excerpt:

              The core problem this paper attempts to address what should count as "economic harm" in determining whether particular kinds of copying are appropriately treated as copyright infringement. . . . The argument that copying without permission, especially on the internet, is per se harmful has led to a variety of increasingly stringent self-help and legislative measures designed to prevent and to punish the activity, although often without evidence of success. But researchers who study such things continue to find evidence of the damage, at least from noncommercial activity, elusive. The reasons this might be so, and the inferences to be drawn from it are an interesting subject for copyright theorists to consider, but so far, very little serious attention has been paid to examining the phenomenon. This paper is an effort to begin filling in that blank by setting out a case study of a rampant form of copying technology that long pre-dates the internet: photocopying. In many ways, the photocopying story is a microcosm of what happens when a new technology bursts onto the copyright scene, and as such, it is a possible source of learning about how copyright should treat the issue of noncommercial copying generally, whether it happens compliments of Xerox, or compliments of your regional ISP.

              | Digital Scholarship |

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                Copyright: "Adverse Possession of Orphan Works"

                Posted in Copyright, Digital Copyright Wars on August 19th, 2012

                Katherine M. Meeks, has self-archived "Adverse Possession of Orphan Works" in SelectedWorks.

                Here's an excerpt:

                This paper proposes that Congress could adapt the real property doctrine of adverse possession to clear the muddy rights to these orphan works. Adverse possession is a mechanism for resolving competing claims to land that arise where an owner has failed to assert his rights for many years, allowing a hostile trespasser to assume control of the land as if it were his own. . . Although Congress would need to modify the black letter test before it could be applied to intangible property, the policy rationale behind adverse possession applies with equal or greater force in the orphan works context. Where the holder of a copyright has failed both to exploit his product and to register his whereabouts with the Copyright Office, such that others might seek permission to use his creative expression, his intellectual property rights should not shackle libraries, museums, or other institutions that perceive a scholarly or commercial demand for the work.

                | Google Books Bibliography | Digital Scholarship |

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                  "Do Bad Things Happen When Works Enter the Public Domain?: Empirical Tests of Copyright Term Extension"

                  Posted in Copyright, Digital Copyright Wars, Public Domain on August 16th, 2012

                  Christopher J. Buccafusco and Paul J. Heald have self-archived "Do Bad Things Happen When Works Enter the Public Domain?: Empirical Tests of Copyright Term Extension" in SSRN.

                  Here's an excerpt:

                  The international debate over copyright term extension for existing works turns on the validity of three empirical assertions about what happens to works when they fall into the public domain. Our study of the market for audio books and a related human subjects experiment suggest that all three assertions are suspect. We demonstrate that audio books made from public domain bestsellers (1913-22) are significantly more available than those made from copyrighted bestsellers (1923-32). We also demonstrate that recordings of public domain and copyrighted books are of equal quality.

                  | Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

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                    Publisher Plaintiffs Issue Statement on Order in Georgia State University E-Reserves Copyright Case

                    Posted in Copyright, Digital Copyright Wars, E-Reserves, Publishing on August 15th, 2012

                    The publisher plaintiffs have issued a statement on Judge Orinda Evans' order in the Georgia State University e-reserves copyright case.

                    Here's an excerpt:

                    The District Court's decision is marred by a number of serious legal errors. The fair use exception cannot be stretched beyond recognition simply because course materials are delivered in a digital format by an educational institution. The ruling excuses copyright violations by GSU and endorses unauthorized copying and distribution of academic works well beyond what the law allows and what universities across the country consider reasonable. The decision devalues academic scholarship by treating such work as 'factual' compilations. . . .

                    As with the initial decision to bring suit, the decision regarding an appeal will be based on a considered assessment that takes into account the extent to which this ruling, which we believe to be legally vulnerable on multiple grounds, endangers the creation and dissemination of high-quality academic work

                    Georgia State University has also issued a statement about the order.

                    | Scholarly Electronic Publishing Weblog | Digital Scholarship |

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                      Judge Issues Order in Georgia State University E-Reserves Copyright Case: GSU’s Defense Costs to Be Paid by Plaintiffs

                      Posted in Copyright, Digital Copyright Wars, E-Reserves, Libraries on August 12th, 2012

                      Judge Orinda Evans has issued an order in the Georgia State University e-reserves copyright case that says, in part, that the defendants's attorney's fees and other defense costs will be paid by plaintiffs.

                      Here's an excerpt from the order:

                      In this litigation, the Court limited Plaintiffs to claims arising in three semesters in 2009 but did not require Plaintiffs to pursue all claims. When the trial began, Plaintiffs chose to pursue 99 claims out of 126. They then dropped 25 claims (and added one) during the trial. As to the remaining 75 claims, no prima facie case was proven in 26 instances. Digital permissions were unavailable in 33 instances. Neither digital nor hard copy permissions were available in 18 cases. Although the Court does not doubt Plaintiffs' good faith in bringing this suit, and there was no controlling authority governing fair use in a nonprofit educational setting, Plaintiffs' failure to narrow their individual infringement claims significantly increased the cost of defending the suit.

                      For these reasons, the Court exercises its discretion to award to Defendants their reasonable attorneys' fees. Other costs will also be taxed in favor of Defendants and against Plaintiffs to the extent permitted by statute.

                      Read more about it at "Judge Denies Publishers' Request for Relief in Georgia State U. E-Reserves Case" and "The Prevailing Party."

                      | Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

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                        "It Was Never a Universal Library: Three Years of the Google Book Settlement"

                        Posted in Copyright, Digital Copyright Wars, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on July 22nd, 2012

                        Walt Crawford has published "It Was Never a Universal Library: Three Years of the Google Book Settlement" in Cites & Insights: Crawford at Large.

                        Here's an excerpt:

                        Remember the Google Books settlement? It was going to settle a four-year-old pair of lawsuits (four years old then, eight years old now) against Google (by the Association of American Publishers, AAP, and the Authors Guild, AG) asserting that Google was infringing on copyright through its two-line snippets from in-copyright books scanned in the Google Library Project—and by the scanning itself. Later, a third group representing media photographers also sued Google for the same actions. . . .

                        This is a long set of notes and comments (cites & insights). It strikes me that the topic and complexity deserve that length—but note that I'm offering much briefer excerpts and comments on most items than I normally would in this sort of roundup.

                        After two sets of general notes and overviews (one before the settlement was rejected, one after) I'm breaking the discussion down by topics rather than chronologically.

                        | Google Books Bibliography | Digital Scholarship |

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