US District Court Judge Denny Chin has granted preliminary approval of the amended Google Book Search Settlement.
Here's the order.
Read more about it at "Judge Gives Preliminary Approval to Google Deal, Sets Feb. 18 for Final Hearing" and "Judge Sets February Hearing for New Google Books Deal."
Benjamin J. Keele has self-archived "Examining Law Journal Publication Agreements for Copyright Transfers and Self-Archiving Rights" in SSRN.
Here's an excerpt:
This study examines 78 law journal publication agreements and finds that a minority of journals ask authors to transfer copyright. Most journals also permit author to self-archive articles with some conditions. The study recommends journals make their agreements publicly available and use licenses instead of copyright transfers.
The Library Copyright Alliance has released International Copyright: Why It Matters to Libraries.
Here's an excerpt:
One of the most important issues for libraries at the present time is the need to reinforce copyright limitations and exceptions. Limitations and exceptions that enable uses of works without prior consent of or payment to the copyright holder or payment, for purposes such as research, scholarship and teaching, library preservation, and interlibrary loan, are a fundamental part of the copyright system, but they have not expanded at an equal pace with enhanced rights and protections in recent years. Internationally higher standards of protection and enforcement have been mandated by TRIPS, the WIPO Copyright Treaty, and the WIPO Performances and Phonograms Treaty. In many nations including the U.S., extension of copyright terms, anticircumvention legislation, and a steadily increasing culture of enforcement have created additional restrictions to use of information. There has been no expansion of limitations and exceptions.
An international group of copyright experts have launched Copyright Watch, which is hosted by the Electronic Frontier Foundation.
Here's an excerpt from the announcement:
A single country's copyright law can be truly byzantine (the United States' seems to be the longest at around 130,000 words, although we're pretty sure Afghanistan has the shortest, lacking as it does any copyright regulations at all). And right now, every one of the 184 countries in Copyright Watch's database is struggling to reform their regulations to fit the difficulties and opportunities of the digital age.
It's a real challenge to map all of these laws, and all of these changes. But it's vital that we do so. Every shift in any of those countries might spread: whether it's for good or ill, maximalist or reforming. Lawmakers eagerly look for track records in other nations, or are obliged to adopt another's bad laws through treaty or trade agreement. Japan decides to model their new law's exceptions on the United State's broad fair use principles; politicians see France's three strikes laws, and decide to import them wholesale. We're hoping Copyright Watch will give the public as powerful a tool for monitoring the global copyright outlook as any private interest.
An amended version of the Google Book Search Settlement has been filed by the AAP, the Authors Guild, and Google with the U.S. District Court for the Southern District of New York.
The complete amended agreement is available from Google as a Zip file.
Exhibit 1 provides the primary text of the amended settlement agreement.
An overview of the amended settlement agreement is available, as is an FAQ.
Read more about it at "Google Books Settlement Sets Geographic, Business Limits"; "Is the Google Books Settlement Worth the Wait?"; and "Terms of Digital Book Deal with Google Revised."
Rebecca Tushnet has self-archived the "Economies of Desire: Fair Use and Marketplace Assumptions" in SSRN.
Here's the abstract:
At the moment that "incentives" for creation meet "preferences" for the same, the economic account of copyright loses its explanatory power. This piece explores the ways in which the desire to create can be excessive, beyond rationality, and free from the need for economic incentive. Psychological and sociological concepts can do more to explain creative impulses than classical economics. As a result, a copyright law that treats creative activity as a product of economic incentives can miss the mark and harm what it aims to promote. The idea of abundance—even overabundance—in creativity can help define the proper scope of copyright law, especially in fair use. I explore these ideas by examining how creators think about what they do. As it turns out, commercially and critically successful creators resemble creators who avoid the general marketplace and create unauthorized derivative works (fanworks). The role of love, desire, and other passions in creation has lessons for the proper aims of copyright, the meaning of fair use, and conceptions of exploitation in markets.
The UK Intellectual Property Office has released © The Way Ahead: A Strategy for Copyright in the Digital Age.
Here's an excerpt:
Based on the findings, the Government's reported intentions are:
- for authors of copyright works; to support fair treatment through new model contracts and clauses and fair returns for use of their work by improving education about and enforcement of rights;
- for rights holders; to help secure a viable future by encouraging the development of new business models, modernising the licensing process and maintaining support for education about and enforcement of rights;
- for consumers; to allow them to benefit from the digital age by seeking to legitimise noncommercial use of legitimately-purchased copyright works and improving access to 'orphan works' such as out-of-print books;
- for educators and researchers; to support them by improving access to works, resolving issues around copyright and contract and ensuring exceptions to copyright are right for the digital age; and
- for businesses and other users; to work towards a simpler copyright system by, improving the copyright licensing process and encouraging the development of new business models.
This means:
- UK action to improve access to orphan works, enable extended collective licensing, encourage the development of model contracts and clauses, and tackle P2P file-sharing; and
- A willingness on the Government's part to consider European action that provides commonsense rules for private, non-commercial use of copyright material that will give consumers much more freedom to do what they want (such as creating mash-ups) and make clear what they cannot do.
Pamela Samuelson and Krzysztof Bebenek have self-archived "Why Plaintiffs Should Have to Prove Irreparable Harm in Copyright Preliminary Injunction Cases" in SSRN.
Here's an excerpt:
It has become lamentably common for courts to issue preliminary injunctions in copyright cases once rights holders have shown a reasonable likelihood of success on the merits without going on to require them to prove that they will suffer irreparable harm unless the injunction issues. Harm is too often presumed to be irreparable if plaintiffs have made out a prima facie case of infringement. This presumption cannot be squared with traditional principles of equity, as interpreted in numerous Supreme Court decisions, particularly eBay, Inc. v. MercExchange LLC, 547 U.S. 388 (2006).
While a presumption of irreparable harm is inappropriate in all copyright cases, it is particularly troublesome in cases involving transformative uses of existing works, such as parodies and remixes and mashups, because free expression and free speech interests of creative users are at stake and transformative uses cases often raise plausible non-infringement defenses. Indeed, if any presumption about harm is appropriate in transformative use cases, it should probably run in favor of irreparability of harm to the defendants' free expression and speech interests under First Amendment case law which treats preliminary injunctions as presumptively unconstitutional prior restraints on speech.
Peter Hirtle, Cornell University Library's Senior Policy Advisor, is interviewed in "Removing All Restrictions: Cornell's New Policy on Use of Public Domain Reproductions," which has been published in the latest issue of Research Library Issues.
Here's an excerpt:
Restrictions on the use of public domain work, sometimes labeled "copyfraud," are generating increasing criticism from the scholarly community. With significant collections of public domain materials in their collections, research libraries are faced with the question of what restrictions, if any, to place on those who seek to scan or otherwise reproduce these resources with the intention of publication.
Cornell University Library has responded by adopting new permissions guidelines that open access by no longer requiring users to seek permission to publish public domain items duplicated from its collections. Users planning to scan and publish public domain material are still expected to determine that works are in the public domain where they live (since public domain determinations can vary internationally). Users must also respect noncopyright rights, such as the rights of privacy, publicity, and trademark. The Library will continue to charge service fees associated with the reproduction of analog material or the provision of versions of files different than what is freely available on the Web. The new guidelines are found at http://cdl.library.cornell.edu/guidelines.html.
Laura N. Gasaway, Associate Dean for Academic Affairs and Professor of Law at the University of North Carolina School of Law, has self-archived "A Defense of the Public Domain: A Scholarly Essay" in SelectedWorks.
Here's the abstract:
Much has been written for librarians about copyright law. Despite the importance of the public domain, it has attracted much less scholarly attention than has copyright law generally, and yet a healthy and robust public domain is crucial to our society. It provides the building blocks for authors, composers, artists and movie makers who can borrow from public domain works without seeking permission of copyright owners. Unfortunately, the public domain is under attack from expanding the term of copyright, to making it more difficult for works to enter the public domain to the restoration of some foreign copyrights that had entered the public domain in the United States. Some librarians have asked whether vigorous application of fair use could not substitute for the shrinking public domain. It cannot. Fair use is a defense to copyright infringement and is very fact determinate. A court's finding of fair use applies only to the two parties to the litigation while the public domain is available to everyone from individual users of works, to artists and authors and to publishers and producers. It is crucial that the public domain be energetically defended. Today, it is not clear whether an author can even place his or her work in the public domain since copyright attaches automatically. A statutory method must be developed so that authors who wish to do so can easily place their works in the public domain.
The Cornell University Library has published Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums by Peter B. Hirtle, Emily Hudson, and Andrew T. Kenyon. A PDF copy of the book can be freely downloaded and the print version can be purchased from CreateSpace.
Here's an excerpt from the press release:
How can cultural heritage institutions legally use the Internet to improve public access to the rich collections they hold?
"Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums," a new book by published today by Cornell University Library, can help professionals at these institutions answer that question.
Based on a well-received Australian manual written by Emily Hudson and Andrew T. Kenyon of the University of Melbourne, the book has been developed by Cornell University Library's senior policy advisor Peter B. Hirtle, along with Hudson and Kenyon, to conform to American law and practice.
The development of new digital technologies has led to fundamental changes in the ways that cultural institutions fulfill their public missions of access, preservation, research, and education. Many institutions are developing publicly accessible Web sites that allow users to visit online exhibitions, search collection databases, access images of collection items, and in some cases create their own digital content. Digitization, however, also raises the possibility of copyright infringement. It is imperative that staff in libraries, archives, and museums understand fundamental copyright principles and how institutional procedures can be affected by the law.
"Copyright and Cultural Institutions" was written to assist understanding and compliance with copyright law. It addresses the basics of copyright law and the exclusive rights of the copyright owner, the major exemptions used by cultural heritage institutions, and stresses the importance of "risk assessment" when conducting any digitization project. Case studies on digitizing oral histories and student work are also included.
Hirtle is the former director of the Cornell Institute for Digital Collections, and the book evolved from his recognition of the need for such a guide when he led museum and library digitization projects. After reading Hudson and Kenyon's Australian guidelines, he realized that an American edition would be invaluable to anyone contemplating a digital edition.
Anne R. Kenney, the Carl A. Kroch University Librarian at Cornell University, noted: "The Library has a long tradition of making available to other professionals the products of its research and expertise. I am delighted that this new volume can join the ranks with award-winning library publications on digitization and preservation."
As an experiment in open-access publishing, the Library has made the work available in two formats. Print copies of the work are available from CreateSpace, an Amazon subsidiary. In addition, the entire text is available as a free download through eCommons, Cornell University's institutional repository, and from SSRN.com, which already distributes the Australian guidelines.
SHERPA has released a major upgrade of its RoMEO service, which lists publishers' self-archiving policies.
Here's an excerpt from the press release:
A major upgrade to RoMEO has been released today, giving:
- Extra Category for the self-archiving of the Publisher's Version/ PDF
- Expanded Journal Coverage
- Extra Search Options for Journal Abbreviations and Electronic ISSNs
- New Tabular Browse View for Publishers
- Selective Display of Publishers' Compliance with Funding Agencys' Mandates . . . .
Previous versions of RoMEO have concentrated on highlighting information on the use of the pre-print and post-print. There has been great support from the community for also providing clearly labelled information on the use of the publisher's version/PDF as a separate item. This feature has now been included and sits alongside information on self-archiving rights for Pre-prints and Authors' Post-prints. The information is available in both individual publisher entries and in the new Tabular Browse View.
RoMEO now provides expanded journal coverage, enabling users to draw from both the Directory of Open Access Journals (DOAJ) and the Entrez journal list for the Life Sciences, along with the existing resource of the British Library's Zetoc service.
In addition to searching for journals by Print ISSN, users are now able to search by Electronic ISSN. They can also search for journals using title abbreviations.
The new Tabular Browse View enables users to display comparative charts of publishers, to quickly determine and compare what different Publishers allow them to deposit, and if the Publisher has a Paid OA Option.
If you or your authors receive funding from any of the 50 plus agencies listed in JULIET, you will now be able to restrict your search results to display Publishers' compliance with any of the funding agencies' policies listed in JULIET.
The European Commission has adopted a Communication from the Commission: Copyright in the Knowledge Economy.
Here's an excerpt from the press release:
The European Commission today adopted a Communication on Copyright in the Knowledge Economy aiming to tackle the important cultural and legal challenges of mass-scale digitisation and dissemination of books, in particular of European library collections. The Communication was jointly drawn up by Commissioners Charlie McCreevy and Viviane Reding. Digital libraries such as Europeana ( http//www.europeana.eu ) will provide researchers and consumers across Europe with new ways to gain access to knowledge. For this, however, the EU will need to find a solution for orphan works, whose uncertain copyright status means they often cannot be digitised. Improving the distribution and availability of works for persons with disabilities, particularly the visually impaired, is another cornerstone of the Communication.
On adoption, Commissioners McCreevy and Reding stressed that the debate over the Google Books Settlement in the United States once again has shown that Europe could not afford to be left behind on the digital frontier.
"We must boost Europe as a centre of creativity and innovation. The vast heritage in Europe's libraries cannot be left to languish but must be made accessible to our citizens", Commissioner McCreevy, responsible for the Internal Market, stated.
Commissioner Reding, in charge of Information Society and Media, said: "Important digitisation efforts have already started all around the globe. Europe should seize this opportunity to take the lead, and to ensure that books digitisation takes place on the basis of European copyright law, and in full respect of Europe's cultural diversity. Europe, with its rich cultural heritage, has most to offer and most to win from books digitisation. If we act swiftly, pro-competitive European solutions on books digitisation may well be sooner operational than the solutions presently envisaged under the Google Books Settlement in the United States."
The Communication addresses the actions that the Commission intends to launch: digital preservation and dissemination of scholarly and cultural material and of orphan works, as well as access to knowledge for persons with disabilities. The challenges identified by the Commission today stem from last year’s public consultation on a Green Paper ( IP/08/1156 ), the Commission's High Level Group on Digital Libraries and the experiences gained with Europe's Digital Library Europeana ( IP/09/1257 ).
Presentations from the Access 2009 Conference are now available. Digital videos and presentation slides (if available) are synched.
Here's a quick selection:
Kenneth Crews and James Grimmelmann have posted blog reports about the Google Books Settlement status conference on October 7th. An amended agreement is anticipated to be filed by November 9th.
Here's an excerpt from the Grimmelmann's post:
Judge Chin is trying to move this case, and his overall attitude seemed to be that he wants as clean a record as possible, and soon, so that he can act on it. That would incline me to think that he is hoping to be able to approve the settlement, or at the least to kick some of the legal issues upstairs to the Second Circuit for its guidance.
Read more about it at "Amended Google Deal Targeted for November 9."
U.S. District Court Judge Richard A. Jones has ruled that resale of licensed software from Autodesk is not a copyright violation.
Here's an excerpt:
The legislative history of § 109 and § 117 informs the court's decision in several respects. First, as the court noted, it suggests that "owner" not only had the same meaning when both sections were enacted, but that the meaning was that ascribed to the term in decisions like Wise. Congress did not amend the term "owner" when amending the statutes. Second, the legislative history reveals not only that Congress has modified § 117 and § 109 to specifically address computer software, but that when it does so, its modifications are not subtle. This makes it even more improbable that Congress ascribes two different meanings to "owner." Third, the legislative history shows that despite incentive and opportunity to modify the term "owner," Congress has not done so. . . .
Autodesk's claim that Mr. Vernor promotes piracy is unconvincing. Mr. Vernor's sales of AutoCAD packages promote piracy no more so than Autodesk's sales of the same packages. Piracy depends on the number of people willing to engage in piracy, and a pirate is presumably just as happy to unlawfully duplicate software purchased directly from Autodesk as he is to copy software purchased from a reseller like Mr. Vernor. The court notes, moreover, that even if CTA had never opened its AutoCAD packages, never installed the software on its computer, and thus never raised the possibility of piracy, Autodesk would still take the position that CTA's resale of those packages was a copyright violation.
Read more about it at "It's Still A Duck: Court Re-Affirms That First Sale Doctrine Can Apply to 'Licensed' Software."
ACRL, ALA, and ARL have released The Google Books Settlement: Who Is Filing And What Are They Saying?.
Here's an excerpt:
The Association of Research Libraries, the American Library Association, and the Association of College and Research Libraries have prepared this document to summarize in a few pages of charts some key information about the hundreds of filings that have been submitted to the federal district court presiding over the Google Books litigation. The Google Books Settlement is the proposed settlement of a class action lawsuit brought against Google, Inc. by groups and individuals representing authors and publishers who objected to Google’s large-scale scanning of in-copyright books to facilitate its Book Search service. The Settlement would bind not only the groups who sued Google, but also most owners of copyrights in printed books ("class-members"), unless they choose to opt out of the Settlement. Class-members who opt out retain their right to sue Google over its scanning activities, but will not be part of the collective licensing scheme created by the Settlement. Under the Settlement, participating class-members will get a one-time payment in compensation for past scanning as well as a share of Google’s future revenues from its scanning activities. A new, non-profit entity called the Book Rights Registry will represent rightsholders under the Settlement going forward.
In "Justice and Google Books: First Thoughts about the Government's Brief," Kenneth Crews, Director of the Copyright Advisory Office at Columbia University, discusses the U.S. Department of Justice Antitrust Division's filing on the Google Book Search Settlement.
Here's an excerpt:
The filing is remarkable for its lucid dissection of select issues. It is diplomatic, and it holds out repeated hope for the continued talks among the parties to the case. But clearly the DOJ does not like what it sees.
U.S. District Judge Denny Chin has postponed the October 7th fairness hearing for the Google Book Search Settlement; however, a status conference will occur on that date.
Here's the ruling.
Read more about it at "Google Judge Calls 'Status Conference' for 7th October" and "Judge Agrees to Postpone Google Books Hearing."
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.
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 Amazon.com 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.
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.
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.
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."
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.
