Digital Copyright Wars – Page 10

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

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 |

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

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 |

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

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.

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

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

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 |

"The New Prohibition: A Look at the Copyright Wars through the Lens of Alcohol Prohibition"

Donald P. Harris has self-archived "The New Prohibition: A Look at the Copyright Wars through the Lens of Alcohol Prohibition" in SSRN.

Here's an excerpt:

This Article argues that legislators, commentators, and the copyright industry must entertain laws that embrace filesharing, and seek other ways to incentivize artists and other creators. The Article traces Alcohol Prohibition of the 1920s and 1930s as an historical example of laws that were inconsistent with the vast majority of society's morals and norms. Looking back, one can see many similarities between the Alcohol and Filesharing Prohibitions. The Article suggests, then, that lessons learned from the failed "noble experiment" of Alcohol Prohibition should be applied to the current filesharing controversy. Doing so, the Article advocates legalizing certain noncommercial filesharing. A scheme along these lines will comport with societal norms and will force new business models to replace outdated and ineffective business models.

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

Association of American Publishers Issues Statement on Georgia State University E-Reserves Copyright Case Ruling

The Association of American Publishers has issued a statement on the Georgia State University e-reserves copyright case ruling.

Here's an excerpt from the press release:

At the same time, we are disappointed with aspects of the Court's decision. Most importantly, the Court failed to examine the copying activities at GSU in their full context. Many faculty members have provided students with electronic anthologies of copyrighted course materials which are not different in kind from copyrighted print materials. In addition, the Court's analysis of fair use principles was legally incorrect in some places and its application of those principles mistaken. As a result, instances of infringing activity were incorrectly held to constitute fair use. . . .

The Court's ruling has important implications for the ongoing vitality of academic publishing as well as the educational mission of colleges and universities. Contrary to the findings of the Court, if institutions such as GSU are allowed to offer substantial amounts of copyrighted content for free, publishers cannot sustain the creation of works of scholarship. The resources available to educators will be fundamentally impaired.

| E-science and Academic Libraries Bibliography | Digital Scholarship |

"Issue Brief: GSU Fair Use Decision Recap and Implications"

ARL has released "Issue Brief: GSU Fair Use Decision Recap and Implications."

Here's an excerpt:

Although the decision is certainly not perfect (the use of bright line rules for appropriate amount under factor 3 is particularly troubling), Judge Evans has written a thorough and thoughtful analysis of the issues, and her opinion represents an overwhelming victory for Georgia State individually, a major defeat for the plaintiff publishers and for the AAP and CCC, and overall a positive development for libraries generally. The substance of the opinion is not ideal, but it is far more generous than the publishers have sought, it establishes a very comfortable safe harbor for fair use of books on e-reserve, and libraries remain free to take more progressive steps.

| Scholarly Electronic Publishing Weblog | Digital Scholarship |

Georgia State University E-Reserves Copyright Case Ruling (Cambridge University Press et al. v. Patton et al.)

The ruling is in for the Cambridge University Press et al. v. Patton et al. case.

Here's an excerpt from the ruling:

Of the 99 alleged infringements that Plaintiffs maintained at the start of trial, only 75 were submitted for post-trial findings of fact and conclusions of law. This Order concludes that the unlicensed use of five excerpts (of four different books) infringed Plaintiffs' copyrights. The question now is whether Georgia State's 2009 Copyright Policy caused those infringements. The Court finds that it did, in that the policy did not limit copying in those instances to decidedly small excerpts as required by this Order. Nor did it proscribe the use of multiple chapters from the same book. Also, the fair use policy did not provide sufficient guidance in determining the "actual or potential effect on the market or the value of the copyrighted work," a task which would likely be futile for prospective determinations (in advance of litigation). The only practical way to deal with factor four in advance likely is to assume that it strongly favors the plaintiff-publisher (if licensed digital excerpts are available).

Read more about it at "The GSU Decision—Not an Easy Road for Anyone" and “Inside the Georgia State Opinion.”

| 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 |

"Orphan Works as Grist for the Data Mill"

Matthew Sag has self-archived "Orphan Works as Grist for the Data Mill" in SSRN.

Here's an excerpt:

The phenomenon of library digitization in general, and the digitization of so-called "orphan works" in particular, raises many important copyright law questions. However, as this article explains, correctly understood, there is no orphan works problem for certain kinds of library digitization. . . .

The nonexpressive use of copyrighted works has tremendous potential social value: it makes search engines possible, it provides an important data source for research in computational linguistics, automated translation and natural language processing. And increasingly, the macro-analysis of text is being used in fields such as the study of literature itself. So long as digitization is confined to data processing applications that do not result in infringing expressive or consumptive uses of individual works, there is no orphan works problem because the exclusive rights of the copyright owner are limited to the expressive elements of their works and the expressive uses of their works.

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

In AAP Meeting Video, RIAA Chairman Discusses How US ISPs Will Enforce Copyright Restrictions This July

At the Association of American Publishers' 2012 Annual Meeting, Cary Sherman, Chairman and CEO of the Recording Industry Association of America, discussed how US ISPs will begin a copyright enforcement program this July. (See the AAP's USTREAM page, Content Industries and Copyright entry.)

The ISPs will be acting in accordance with a "Memorandum of Understanding" that outlines a graduated response and "mitigation measures."

| Scholarly Electronic Publishing Bibliography, Version 80 | Digital Scholarship |

"Orphan Works: Mapping the Possible Solution Spaces"

David Robert Hansen has self-archived "Orphan Works: Mapping the Possible Solution Spaces" in SSRN.

Here's an excerpt:

This paper surveys a range of proposed orphan works solutions. The goal is to acquaint the reader with the wide variety of solution types, and to identify the positive and negative aspects of each. The paper discusses four general categories of proposed solutions to the orphan works problem: Remedy-limitation approaches, such as the one advocated in the 2006 U.S. Copyright office proposal, that are predicated on a user's good-faith, reasonable search for rights holders; administrative systems, such as the one adopted in Canada, that allow users to petition a centralized copyright board to license specific reuses of orphan works; access and reuse solutions that are tailored to rely upon the existing doctrine of fair use; and extended collective licensing schemes, which permit collective management organizations ('CMOs') to license the use of works that are not necessarily owned by CMO members, but that are representative of the CMO members' works.

| Scholarly Electronic Publishing Bibliography, Version 80 | Digital Scholarship |

Digital Copyright: Authors Guild Files Motion for Partial Judgment on the Pleadings in Authors Guild et al. v. Hathitrust et al.

The Authors Guild has filed a motion for partial judgment on the pleadings in the Authors Guild et al. v. Hathitrust et al. case.

Here's an excerpt from the associated "Memorandum of Law in Support of Plaintiffs' Motion for Partial Judgment on the Pleadings":

Defendants are wildly exceeding the special privileges Congress granted to libraries under Section 108 by systematically digitizing, reproducing, distributing and putting at risk millions of works through their mass book digitization program. Defendants' so-called orphan works program is similarly inimical to the Copyright Act, as it violates Section 108(h)'s explicit limitation of libraries' use of orphan works to the twenty year period preceding the end of their copyright term. Neither fair use under Section 107, nor any other statutory exception under the Copyright Act, can justify Defendants' systematic and concerted digitization, reproduction, distribution and other unauthorized uses of millions of copyright-protected library books. Accordingly, Plaintiffs urge the Court to grant their motion for partial judgment on the pleadings.

| Digital Bibliographies | Digital Scholarship |

Pamela Samuelson et al. Send Letter to US District Court Judge Denny Chin about Authors Guild v. Google Case

Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law and Information at the UC Berkeley School of Law, and other scholars have sent a letter ("Academic Author Objections to Plaintiff's Motion for Class Certification") to US District Court Judge Denny Chin about class certification issues in the Authors Guild v. Google Case.

Here's an excerpt:

We believe that our works of scholarship are more typical of the contents of research library collections than works of the three named plaintiffs in this case. Betty Miles is the author of numerous children's books. Jim Bouton is a former baseball pitcher who has written both fiction and nonfiction books based on his experiences as a baseball player. Joseph Goulden is a professional writer who has written a number of nonfiction books on a variety of subjects, including a book about "superlawyers." None of these three are academic authors. Their books are aimed at a popular, rather than an academic, audience. As professional writers, their motivations and interests in having their books published would understandably be different, and likely more commercial, than those of academic scholars. Hence, our concern is that these three do not share the academic interests that are typical of authors of books in research library collections. As we explain further below, the clearest indication that the named plaintiffs do not share the same priorities typical of academic authors is their insistence on pursuing this litigation.

| Google Books Bibliography | Digital Scholarship |

How to Fix Copyright

William Patry, Senior Copyright Counsel at Google, has published How to Fix Copyright (publisher's description).

Here's an excerpt:

Our current laws are the result of "lobbynomics," the continual use of exaggerated (and often false) claims and crises as an excuse to pass laws that are unnecessary and many times harmful. . . . We will never fix our laws unless we clean house and start all over again, this time on a sound, empirical basis: Simply adding on to a failed structure will no longer work.

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

"Golan v. Holder: A Farewell to Constitutional Challenges to Copyright Laws"

The Library Copyright Alliance has released "Golan v. Holder: A Farewell to Constitutional Challenges to Copyright Laws" by Jonathan Band.

Here's an excerpt:

The majority opinion in Golan closes the door on constitutional challenges to copyright statutes unless those statutes contain absolutely no time limits or directly undermine the idea/expression dichotomy or fair use. Justice Breyer failed to convince the Court that under the Constitution Congress had the authority to enact only utilitarian copyright statutes that incentivized the creation of new material. The majority opinion leaves Congress as the sole venue for fighting draconian copyright laws.

| Scholarly Electronic Publishing Bibliography, Version 80 | Digital Scholarship |

Sharing: Culture and the Economy in the Internet Age

The Amsterdam University Press has released Sharing: Culture and the Economy in the Internet Age.

Here's an excerpt:

This book is about file sharing for creative, expressive or informative works in all media. More specifically, it is about file sharing between individuals and without profit motive. File sharing is the act of making a file available to other individuals by putting it on-line, by sending a copy, or by rendering it accessible through a file sharing software. We defend the view that sharing without direct or indirect monetary transaction—or "non-market" sharing—is legitimate. We also claim that sharing is socially and culturally valuable and will play a key role in the future of our culture and the creative economies. Furthermore, this book proposes a means to strengthen and exploit the synergy between file sharing and creativity, for the general benefit of society and the enrichment of the cultural economy.

| Digital Scholarship |

HathiTrust Responds to First Amended Complaint in Authors Guild, Inc. et al. v. HathiTrust et al. Copyright Case

HathiTrust has responded to the plaintiffs' First Amended Complaint in the Authors Guild, Inc. et al. v. HathiTrust et al. copyright case.

| Digital Scholarship's Digital Bibliographies | Digital Scholarship |

SOPA/PIPA Alternative: "Fighting the Unauthorized Trade of Digital Goods while Protecting Internet Security, Commerce and Speech"

Senator Ron Wyden and others have released a draft proposal, "Fighting the Unauthorized Trade of Digital Goods while Protecting Internet Security, Commerce and Speech," that presents an alternative to the Stop Online Piracy Act (SOPA) and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PIPA).

Here's an excerpt:

We found that using trade laws to address the flow of infringing digital goods into the United States makes it possible to avoid many of the pitfalls that would arise from other legislative proposals currently being advanced to combat online infringement. Namely by putting the regulatory power in the hands of the International Trade Commission—versus a diversity of magistrate judges not versed in Internet and trade policy—will ensure a transparent process in which import policy is fairly and consistently applied and all interests are taken into account. When infringement is addressed only from a narrow judicial perspective, important issues pertaining to cybersecurity and the promotion of online innovation, commerce and speech get neglected. By approaching digital good infringement as a matter of regulating international commerce, we are able to take all of these factors into account.

| Digital Scholarship's Digital Bibliographies | Digital Scholarship |

"Copyright Policy and Practice in Electronic Reserves among ARL Libraries"

College & Research Libraries has released a preprint of "Copyright Policy and Practice in Electronic Reserves among ARL Libraries."

Here's an excerpt:

This paper presents the results of a survey of 110 ARL institutions regarding their copyright policies for providing electronic reserves. It compiles descriptive statistics on library practice as well as coding responses to reveal trends and shared practices. Finally, it presents conclusions about policy-making, decision-making and risk aversion in ARL institutions.

| Digital Scholarship's Digital Bibliographies | Digital Scholarship |

Copyright Infringement and Enforcement in the US

The American Assembly has released Copyright Infringement and Enforcement in the US.

Here's an excerpt:

The note excerpts a forthcoming survey-based study called Copy Culture in the U.S. and Germany. Drawing on results from the U.S. portion of the survey, it explores what Americans do with digital media, what they want to do, and how they reconcile their attitudes and values with different policies and proposals to enforce copyright online.

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

The Impact of U.S. Internet Copyright Regulations on Early-Stage Investment: A Quantitative Study

Booz & Company has released The Impact of U.S. Internet Copyright Regulations on Early-Stage Investment: A Quantitative Study

Here's an excerpt from the press release:

A large majority of the angel investors and venture capitalists who took part in a Booz & Company study say they will not put their money in digital content intermediaries (DCIs) if governments pass tough new rules allowing websites to be sued or fined for pirated digital content posted by users. (DCIs are the companies that provide search, hosting, and distribution services for digital content such as YouTube, Facebook, SoundCloud, eBay, and thousands of others.) More than 70 percent of angel investors reported they would be deterred from investing if anti-piracy regulations against "user uploaded" websites were increased.

| New: Scholarly Electronic Publishing Bibliography, Version 80 | Digital Scholarship |

Library Copyright Alliance Sends Letter to House Committee on the Judiciary about Stop Online Piracy Act

The Library Copyright Alliance has sent a letter to Chairman Lamar Smith and Ranking Member John Conyers of the House Committee on the Judiciary about the Stop Online Piracy Act.

Here's an excerpt:

There are three pending copyright infringement lawsuits against universities and their libraries relating to their use of digital technology One of these cases, AIME v. UCLA, concerns the streaming of films to students as part of their course assignments. These lawsuits reflect a growing tension between rights holders and libraries, and some rights holders' increasingly belligerent enforcement mentality. Moreover, legislation such as SOPA and the PRO-IP Act passed in the 110th Congress, and the activities of the Intellectual Property Enforcement Coordinator (a position created by the PRO-IP Act), encourage federal prosecutors to enforce copyrights law more aggressively.

In this environment, the criminal prosecution of a library for copyright infringement is no longer beyond the realm of possibility. For this reason, we strongly oppose the amendments described above, which would increase the exposure of libraries to prosecution. The broadening of the definition of willful infringement could result in a criminal prosecution if an Assistant U.S. Attorney believes that a library's assertion of fair use or one of the Copyright Act's other privileges is unreasonable. This risk is compounded with streaming, which SOPA would subject to felony penalties even if conducted without purpose of commercial advantage or private financial gain.

| New: Scholarly Electronic Publishing Bibliography, Version 80 | Digital Scholarship |

Legal Issues in Mass Digitization: A Preliminary Analysis and Discussion Document

The U.S. Office of the Register of Copyrights has released Legal Issues in Mass Digitization: A Preliminary Analysis and Discussion Document .

Here's the announcement:

The Copyright Office has published a Preliminary Analysis and Discussion Document that addresses the issues raised by the intersection between copyright law and the mass digitization of books. The purpose of the Analysis is to facilitate further discussions among the affected parties and the public discussions that may encompass a number of possible approaches, including voluntary initiatives, legislative options, or both. The Analysis also identifies questions to consider in determining an appropriate policy for the mass digitization of books.

Public discourse on mass digitization is particularly timely. On March 22, 2011, the U.S. District Court for the Southern District of New York rejected a proposed settlement in the copyright infringement litigation regarding Google's mass book digitization project. The court found that the settlement would have redefined the relationship between copyright law and new technology, and it would have encroached upon Congress's ability to set copyright policy with respect to orphan works. Since then, a group of authors has filed a lawsuit against five university libraries that participated in Google's mass digitization project. These developments have sparked a public debate on the risks and opportunities that mass book digitization may create for authors, publishers, libraries, technology companies, and the general public. The Office's Analysis will serve as a basis for further policy discussions on this issue.

| Google Books Bibliography | Digital Scholarship |

Analysis of the Authors Guild et al. v. HathiTrust et al. Case

Below are a selection of posts and other documents analyzing the Authors Guild et al. v. HathiTrust et al. case.

"About Those Orphans" by Brandon Butler
"HathiTrust and the Litigation Path" by Kenneth Crews
"Is It All about the Orphans?" by Kevin Smith
Resource Packet on Orphan Works: Legal and Policy Issues for Research Libraries by Prudence Adler, Jonathan Band, and Brandon Butler
"Suing HathiTrust" by C. E. Petit

Read more about it at "Authors Guild v. HathiTrust et al. Resources."

| New: Institutional Repository and ETD Bibliography 2011 | Digital Scholarship |

"Access to the Agreement between Google Books and the British Library"

In "Access to the Agreement between Google Books and the British Library," Javier Ruiz of the Open Rights Group analyzes the Google Books contract between Google and the British Library (includes a link to contract).

Here's an excerpt:

The British Library recently announced to much fanfare a deal with Google to make available online a quarter of a million books no longer restricted by copyright, thus in the public domain.

The deal is presented as a win-win situation, where Google pays for the costs of scanning the books, which will be available on both Google and BL's websites. This sounds very philanthropic from Google, however the catch is in the detail:

"Once digitised, these unique items will be available for full text search, download and reading through Google Books, as well as being searchable through the Library's website and stored in perpetuity within the Library's digital archive."

In order to find out what this really means we asked the British Library for a copy of the agreement with Google, which was not uploaded to their transparency website with other similar contracts, as it didn't involve monetary exchange.

| Digital Scholarship |