Digital Copyright Wars – Page 11

Is the Google Book Settlement Still Possible?

In "Google Books Settlement, 2008-2011," James Grimmelmann analyzes the impact of recent rulings and case resolutions on the Google Book Settlement. The rulings and resolutions are the In re: Literary Works in Electronic Databases Copyright Litigation ruling, the National Music Publishers' Association's resolution of The Football Association Premier League Limited, et al. v. You Tube, Inc. lawsuit (consolidated into Viacom v. YouTube), and the Wal-Mart Stores, Inc. v. Dukes et al. ruling.

Here's an excerpt:

The road to class-wide settlement—even to a much more modest settlement that covers only scanning and searching—now appears to be barred. What is more, in light of the freelancers' case and the Supreme Court's recent Wal-Mart case, the road to class-wide litigation also looks to be extraordinarily difficult. Google will raise many of the same adequacy of representation arguments in its opposition to class certification. It might still be more feasible for a few copyright owners holding large number of copyrights to litigate on an individual basis—but the major publishers, who best fit that bill, have all more or less made their peace with Google through its Partner Program. The odds of the authors being able to see this one through to the end have just dropped precipitously. Google is holding all the cards now, and they're all full houses.

| New: Google Books Bibliography, Version 7 | Digital Scholarship |

Carl Malamud Issues Complaint about Smithsonian Institution’s Terms of Use and Licensing Policy

Carl Malamud has put up a website, What Would Luther Burbank Do?, that contains a complaint about the Smithsonian Institution's Terms of Use and Licensing Policy. The complaint concerns a take down notice that Mindy Sommers received from the Smithsonian Institution regarding her Vintage Seed Catalog Digital Collage Sheet Five.

Here's an excerpt:

1.1 The Smithsonian Institution's Terms of Use and Licensing Policy are in violation of 17 U.S.C. § 105 (the "works of government" clause of the Copyright Act) and 20 U.S.C. § 41 (the "increase and diffusion of knowledge among men" clause of the Smithsonian Charter). . . . .

6.1 Injunction. That the Smithsonian Institution be instructed to cease and desist all further "take down" notices until this matter has been thoroughly investigated.

6.2 Investigation. That the Board of Regents investigate and analyze the intellectual property policies of the Smithsonian Institution to determine if such policies are in violation of the Copyright Act or the Smithsonian Charter.

6.3 Restitution. That the Smithsonian Institution work with the community to create high-resolution scans of the Seed Displays source material that is not under copyright by external, non-governmental entities and that such high-resolution scans be released on the Internet with no restrictions on use.

| Digital Scholarship |

Google Books Bibliography, Version 7

Digital Scholarship has released version 7 of the Google Books Bibliography, which presents over 325 selected English-language articles and other works that are useful in understanding Google Books. It primarily focuses on the evolution of Google Books and the legal, library, and social issues associated with it, especially the Google Book Settlement. To better show the development Google Books, it is now organized by year of publication. It primarily includes journal articles, e-prints, magazine articles, and newspaper articles. This version expands coverage of law review articles and legal e-prints. Where possible, links are provided to works that are freely available on the Internet.

The following recent Digital Scholarship publications may also be of interest:

Digital Curation and Preservation Bibliography 2010. Presents over 500 English-language works.
Institutional Repository Bibliography, Version 4. Presents over 500 English-language works.
Scholarly Electronic Publishing Bibliography 2010. Presents over 3,800 English-language works.

| Digital Scholarship | Digital Scholarship Publications Overview |

Opt-In Settlement for Google Books Case?

James Grimmelmann reports that Michael Boni told US District Court Judge Denny Chin at the 7/19/11 status conference that the parties involved in the Google Books lawsuit "have been aiming for an opt-in settlement." The next status conference will occur on 9/15/11.

Here's an excerpt from Grimmelmann's "GBS Status Conference: Opt-in Settlement in the Works?" post:

What that might mean is not obvious. It could mean an actual opt-in settlement, one that binds only class members who send in claim forms. It could mean a settlement in which Google commits to an open-ended offer to all class members. It could mean a narrower, scanning-and-searching-only settlement, so that copyright owners can "opt in" to book sales by striking their own individual deals with Google.

| Digital Scholarship Publications Overview |

The Anti-Counterfeiting Trade Agreement (ACTA): An Assessment

The European Parliament has released The Anti-Counterfeiting Trade Agreement (ACTA): An Assessment.

Here's an excerpt:

The ACTA was motivated by a desire to establish equivalent provisions in international trade agreements containing rules on anti-counterfeiting. This is important at a time when free trade agreements are being negotiated by different parties. For the European Union it is also of importance to protect EU intellectual property rights (IPR) as future EU competitiveness depends on its ability to move into higher value added activities such as those for which IPRs are important. At the same time international agreements on IPRs will only be sustainable when they have the support of all parties. Within the EU the ACTA has also been the source of some concerns regarding the non-transparent way it was negotiated and whether it meets to aims agreed by the European Parliament and Commission that it would be compatible with the existing acquis communautaire and the World Trade Organisation's Trade Related Intellectual Property rights (TRIPs) Agreement.

| Digital Curation and Preservation Bibliography 2010 | Institutional Repository Bibliography | Transforming Scholarly Publishing through Open Access: A Bibliography | Scholarly Electronic Publishing Bibliography 2010 |

"After Google Book Search: Rebooting the Digital Library"

Randal C. Picker has self-archived "After Google Book Search: Rebooting the Digital Library" in SSRN.

Here's an excerpt:

The rejection of the Google Book Search settlement means that we are at a point of rebooting how we design our digital library future. There were many criticisms of GBS and the settlement but perhaps chief among those was the risk that approval of the settlement would have locked in a single approach to digital libraries. Google would have received unique access to the so-called orphan works and that would have provided it what may have been a decisive advantage against digital library competitors, both private and public. As we move forward on the orphan works, we need to do so with two principles in mind. First, we need to enable broad competing uses of the orphan works while, to the greatest extent possible, respecting the rights of the orphan works holders. Second, we should not repeat the mistake of the GBS settlement by somehow tilting the table in favor of digital library monopoly, either public or private.

| Digital Scholarship Publications Overview Google Books Bibliography |

Digital Copyright: "How PIPA Would Affect Colleges and Universities"

The EDUCAUSE Policy Analysis and Advocacy Program has released "How PIPA Would Affect Colleges and Universities." (PIPA is the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act.)

Here's an excerpt:

Whereas COICA didn't bother to define "domain name system server," PIPA says, "[T]he term 'domain name system server' means a server or other mechanism used to provide the Internet protocol address associated with a domain name" (emphasis added).

The phrase "or other mechanism" increases the potential scope of the definition, at the risk of unintended consequences. For example, the term defined this way could sweep in operating systems, email clients, web clients, routers, and other technologies that are operated by our campuses, which would adversely affect operations.

Major U.S. ISPs Agree to Copyright Alert Plan

Five U.S ISPs (AT&T, Cablevision Systems Corp., Comcast Corp., Time Warner Cable, and Verizon) have agreed to a copyright alert plan with the A2IM, IFTA, the MPAA (and major members), and the RIAA (and major members).

Here's an excerpt from the press release:

The new Copyright Alert System addresses these problems with a series of early alerts—up to six—in electronic form, notifying the subscriber that his or her account may have been misused for online content theft of film, TV shows or music. It will also put in place a system of "mitigation measures" intended to stop online content theft on those accounts that appear persistently to fail to respond to repeated Copyright Alerts. The system will also provide subscribers the opportunity for an independent review to determine whether a consumer's online activity in question is lawful or if their account was identified in error. There are no new laws or regulations established as a part of this voluntary agreement. Termination of a subscriber's account is not part of this agreement. ISPs will not provide their subscribers' names to rights' holders under this agreement.

For an explanation "mitigation measures," see the "FAQ's on The Center for Copyright Information and Copyright Alert System."

| Digital Scholarship Publications Overview |

Podcast: Pamela Samuelson on Codifying the Google Books Settlement

In this podcast, Pamela Samuelson discusses her 2011 paper "Legislative Alternatives to the Google Book Settlement" with Jerry Brito, Senior Research Fellow at the Mercatus Center at George Mason University.

Georgia State University Motion for Directed Verdict Granted in Part in Cambridge University Press et al. v. Patton et al. Case

U.S. District Court Judge Orinda D. Evans granted Georgia State University's motion for directed verdict in part in the Cambridge University Press et al. v. Patton et al. case. A directed verdict for the contributory infringement claim was granted.

Here's an excerpt from "Publishers Lose Another Claim as GSU Trial Comes to a Close" by Brandon Butler:

And just like that, Judge Orinda Evans threw out the second of the publishers' three claims. Now indirect infringement is the only remaining claim against GSU. . . .

This claim is the hardest one for GSU to avoid because, in theory, the publishers just have to find one infringement by one professor to prove GSU is an 'indirect infringer.'

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

Recent Commentary about the Georgia State E-Reserves Copyright Case (Cambridge University Press et al. v. Patton et al.)

Below is some recent commentary about the Cambridge University Press et al. v. Patton et al. case.

"A Nightmare Scenario for Higher Education" by Kevin Smith. Here's an excerpt:

First, if this injunction were adopted as proposed, it would enjoin everyone at Georgia State, including students, who would seem to largely lose their fair use rights by virtue of enrolling at GSU. It would apply to e-reserves, faculty web pages and any learning management systems in use or adopted in the future. It would make GSU responsible for every conceivable act of copying that took place on their campus. In short, administrators at Georgia State would have to look over the shoulders of each faculty member whenever they uploaded course material to an LMS or any other web page. . . .

Not only would GSU have to micromanage each faculty member’s choices about how to teach every class, they would also have to give the plaintiff publishers access to all of the computer systems on campus so that they too could examine each professor’s decisions.

"The Georgia State Filing—A Declaration of War on the Faculty?" by Paul Courant. Here's an excerpt:

Call me gullible, but even now I am not fully persuaded that academic publishers are the enemies of faculty and the university. However, I do think that something has gone horribly wrong when entities that were created to serve scholarship employ legal procedures that would hamstring scholars and students who engage in customary and effective behaviors in their teaching and learning. I hope that Judge Evans will recognize that the publishers’ proposal is a plain violation of copyright and would be destructive of vital public purposes.

"What's at Stake in the Georgia State Copyright Case." The Chronicle of Higher Education published comments from prominent experts in this article. Here's an excerpt from Dorothea Salo's contribution:

Should a ruling come down that adds so much complication, cost, or risk to provisions about electronic reserves that institutions and their libraries no longer feel safe offering them, faculty and librarians will unite at last in shared outrage on the far shore of the Rubicon.

"Georgia State, Copyright and the Future of Higher Education" by Tracy Mitrano. Here's an excerpt:

We need senior leadership in our institutions, guided by national associations, to pull that campus radical of the 1960's out of the suits and high heels we now don and get serious about a direction of change that preserves us.

"The Georgia State University Lawsuit Injunction: Back to the Future" by Peggy Hoon. Here's an excerpt:

However, this proposed injunction is so onerous, so intrusive, so far-reaching, and so incompatible with the reality of teaching and learning in the 21st century, that simply widely publicizing the existence of and contents of the proposed injunction may well achieve what the library community has been trying to do for the last twenty years.

**WAKE UP THE FACULTY AND MOBILIZE THEM TO RECLAIM CONTROL OF THEIR OWN WORKS OF AUTHORSHIP AND THEIR OWN SYSTEM OF SCHOLARLY COMMUNICATION.**

This injunction is your fuel—now LIGHT that fire!

| Digital Scholarship | Digital Scholarship Publications Overview |

S.978 Would Make Unauthorized Streaming a Felony with 5 Year Maximum Sentence

Senator Amy Klobuchar and two cosponsors have introduced S.978, which would make unauthorized streaming of copyrighted works a felony.

Here's an excerpt:

‘(2) shall be imprisoned not more than 5 years, fined in the amount set forth in this title, or both, if–

‘(A) the offense consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works; and

‘(B)(i) the total retail value of the performances, or the total economic value of such public performances to the infringer or to the copyright owner, would exceed $2,500; or

‘(ii) the total fair market value of licenses to offer performances of those works would exceed $5,000;’

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

PROTECT IP Act Introduced in Senate

Senators Patrick Leahy (D-Vt.), Orrin Hatch (R-Utah), and Chuck Grassley (R-Iowa) have introduced the PROTECT IP Act (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act) in the Senate.

Here's an excerpt from the press release:

The Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, or PROTECT IP Act, follows bipartisan legislation introduced in 2010, which won the unanimous support of Senate Judiciary Committee members. The PROTECT IP Act narrows the definition of a rogue website, while ensuring that law enforcement can get at the "worst-of-the-worst" websites dedicated to selling infringing goods. Copyright infringement and the sale of counterfeit goods reported cost the U.S. economy billions of dollars and hundreds of thousands of jobs, as well as billions of dollars in lost tax revenue for federal, state and local governments. . . .

The PROTECT IP Act will provide law enforcement with important tools to stop websites dedicated to online piracy and the sale of counterfeit goods, which range from new movie and music releases, to pharmaceuticals and consumer products. Key updates to the PROTECT IP Act include:

A narrower definition of an Internet site "dedicated to infringing activities";

Authorization for the Attorney General to serve an issued court order on a search engine, in addition to payment processors, advertising networks and Internet service providers;

Authorization for both the Attorney General and rights holders to bring actions against online infringers operating an internet site or domain where the site is "dedicated to infringing activities," but with remedies limited to eliminating the financial viability of the site, not blocking access;

Requirement of plaintiffs to attempt to bring an action against the owner or registrant of the domain name used to access an Internet site "dedicated to infringing activities" before bringing an action against the domain name itself;

Protection for domain name registries, registrars, search engines, payment processors, and advertising networks from damages resulting from their voluntary action against an Internet site "dedicated to infringing activities," where that site also "endangers the public health," by offering controlled or non-controlled prescription medication.

E-Reserves and Copyright: Proposed Injunction in Cambridge University Press et al. v. Patton et al. Case

Cambridge University Press and other plaintiffs have submitted a proposed injunction in the Cambridge University Press et al. v. Patton et al. case. The trial starts on 5/16/11.

Here's an excerpt:

II. Subject only to the provisions of Paragraph III hereof, GSU shall be and is permanently enjoined and restrained from creating, reproducing, transmitting, selling, or in any manner distributing, or assisting, participating in, soliciting, encouraging, or facilitating the creation, reproduction, download, display, sale, or distribution in any manner of, copies, whether in hard copy format, digital or electronic computer files, or any other format, of any and all Works without permission.

"Just Google It!—The Google Book Search Settlement: A Law and Economics Analysis"

Frank Müller-Langer and Marc Scheufen have self-archived "Just Google It!—The Google Book Search Settlement: A Law and Economics Analysis" in SSRN.

Here's an excerpt:

Our law and economics analysis of the Book Search Project suggests that—from a copyright perspective—the proposed settlement may be beneficial to right holders, consumers, and Google. For instance, it may provide a solution to the still unsolved dilemma of orphan works. From a competition policy perspective, we stress the important aspect that Google’s pricing algorithm for orphan and unclaimed works effectively replicates a competitive Nash-Bertrand market outcome under post-settlement, third-party oversight.

Pamela Samuelson: "Legislative Alternatives to the Google Book Settlement"

Pamela Samuelson has self-archived "Legislative Alternatives to the Google Book Settlement" in SSRN.

Here's an excerpt:

In the aftermath of Judge Chin's rejection of the proposed Google Book settlement, it is time to consider legislative alternatives. This article explores a number of component parts of a legislative package that might accomplish many of the good things that the proposed settlement promised without the downsides that would have attended judicial approval of it. It gives particular attention to the idea of an extended collective licensing regime as a way to make out-of-print but in-copyright books more widely available to the public. But it also considers several other measures, such as one aimed at allowing orphan works to be made available and some new privileges that would allow digitization for preservation purposes and nonconsumptive research uses of a digital library of books from the collections of major research libraries.

| Digital Scholarship | Digital Scholarship Publications Overview | Google Books Bibliography |

Lawrence Lessig Video: The Architecture of Access to Scientific Knowledge: Just How Badly We Have Messed This Up

CERN has released The Architecture of Access to Scientific Knowledge: Just How Badly We Have Messed This Up.

Here's an excerpt from the announcement:

In this talk, Professor Lessig will review the evolution of access to scientific scholarship, and evaluate the success of this system of access against a background norm of universal access.

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

"Google Book Search in the Gridlock Economy"

Douglas Lichtman has self-archived "Google Book Search in the Gridlock Economy" in SSRN.

Here's an excerpt:

Michael Heller's The Gridlock Economy popularizes a concept that Heller has developed over nearly two decades of influential academic writing: the notion that, when it comes to property rights, too many rights-endowed cooks really can spoil the broth. I was asked in this conference to apply Heller's insight to the Google Book Search project, and the request at first seemed natural. Heller himself suggested that Google Book Search might be an apt poster child for the gridlock phenomenon; Google likewise can often be heard to complain, in Heller-esque tones, that the only way to build a comprehensive search engine for books is to take the books without asking. This Essay, however, questions the example and offers a refinement on Heller's theory. Gridlock, I argue, is not simply a catch-all for situations where a large number of permissions are in play. It is more narrowly a reference to situations where a large number of permissions are in play, and those permissions intertwine.

| Digital Scholarship | Digital Scholarship Publications Overview | Transforming Scholarly Publishing through Open Access: A Bibliography |

A Guide For the Perplexed Part IV: The Rejection of the Google Books Settlement

The Library Copyright Alliance has released A Guide For the Perplexed Part IV: The Rejection of the Google Books Settlement.

Here's an excerpt from the press release:

This guide is the latest in a series prepared by LCA legal counsel Jonathan Band to help inform the library community about this landmark legal dispute.

In the Guide Part IV, Band explains why the Court rejected the proposed class action settlement, which would have allowed Google to engage in a wide variety of activities using scanned books.

As stated in the Guide, "The court concluded that the settlement was unfair because a substantial number of class members [i.e., authors and publishers] voiced significant concerns with the settlement.… However, the validity of the objections seemed less important to the court than the fact that many class members raised them."

As for the impact of the decision on libraries, Band writes that while it is too early to say what the parties will do next, "it appears that both the challenges and the opportunities presented to libraries by the settlement when it was announced in the fall of 2008 are growing narrower and more distant."

| Digital Scholarship | Digital Scholarship Publications Overview | Transforming Scholarly Publishing through Open Access: A Bibliography |

E-Reserves and Copyright: Cambridge University Press et al. v. Patton et al. Trial Set for 5/16/2011

The Cambridge University Press et al. v. Patton et al. trial date has been set for 5/16/2011.

Here's an excerpt from ruling:

At trial, the parties will need to present evidence and argument that will allow the Court to rule on the question whether Plaintiffs may proceed under Ex Parte Younp or whether the case must be dismissed for lack of subject matter jurisdiction. Based on the pleadings alone, the Court cannot say that it lacks subject matter jurisdiction to hear the case. Dismissal under Rules 12(b) (1) and 12(c), Federal Rules of Civil Procedure, would be improper.

Accordingly, Defendants' Motion to Dismiss (Doc. 2393) is DENIED WITHOUT PREJUDICE. The parties are DIRECTED to file a proposed consolidated pretrial order no later than April 29, 2011. The trial is set for May 16, 2011 at 10:00 a.m.

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

Jessica Litman: "Readers’ Copyright"

Jessica Litman, John F. Nickoll Professor of Law at the University of Michigan Law School, has self-archived "Readers' Copyright" in SSRN.

Here's an excerpt:

This essay is part of a project intended to help reclaim copyright for readers, listeners, and viewers. A system of copyright protection makes little sense unless it is designed to encourage the use and enjoyment of the works it induces authors to create and publishers to disseminate. I argue that a clear-eyed examination of copyright's history reveals that solicitude for readers and members of the audience is, in fact, deeply encoded in copyright's DNA. Recently, readers' interests have faded in apparent importance in the copyright scheme in ways that have unbalanced the copyright system, and undermined public support for copyright law. In response to growing criticism of copyright, some of copyright law's most ardent supporters have insisted that users have no rights, should have no rights, and have never had rights in the copyright scheme. That approach, I suggest, is making the problem worse, not better. Copyright seems out of whack because it has forgotten its most important constituents. In this essay, I take a series of very small baby steps in the direction of recognizing rights and liberties within the copyright system for readers, listeners, viewers and other members of the copyright audience.

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

Four Reports and One Hearing on the Orphan Works Problem

In the wake of the recent Google Books Amended Settlement Agreement ruling, the orphan works problem has once again come front and center. Below are four reports and one Congressional hearing on the issue that may be worth revisiting.

Korn, Naomi. In from the Cold: An Assessment of the Scope of "Orphan Works" and Its Impact on the Delivery of Services to the Public. London: JISC, 2009.

Ricolfi, Marco et al. Final Report on Digital Preservation, Orphan Works, and Out-of-Print Works. Luxembourg: European Commission, Information Society and Media DG, Access to Information Unit, 2008.

United States Copyright Office. Report on Orphan Works. Washington, DC: United States Copyright Office, 2006.

U.S. Congress, House. Promoting the Use of Orphan Works: Balancing the Interests of Copyright Owners and Users, Hearing before the Subcommittee on Courts, the Internet, and Intellectual Property of the Committee on the Judiciary, 110 Congress, 2008.

Vuopala, Anna Assessment of the Orphan Works Issue and Costs for Rights Clearance. Luxembourg: European Commission, Information Society and Media DG, Access to Information Unit, 2010.

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

Author’s Guild et al. v. Google Inc. Ruling: Amended Settlement Agreement Denied

Judge Denny Chin of the U.S. District Court Southern District of New York has denied the Amended Settlement Agreement for the Author's Guild et al. v. Google Inc. case.

Here's an excerpt from the ruling:

Before the Court is plaintiffs' motion pursuant to Rule 23 of the Federal Rules of Civil Procedure for final approval of the proposed settlement of this class action on the terms set forth in the Amended Settlement Agreement (the "ASA"). The question presented is whether the ASA is fair, adequate, and reasonable. I conclude that it is not.

While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far. It would permit this class action—which was brought against defendant Google Inc. ("Google") to challenge its scanning of books and display of "snippets" for on-line searching—to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.

Accordingly, and for the reasons more fully discussed below, the motion for final approval of the ASA is denied. The accompanying motion for attorneys' fees and costs is denied, without prejudice.

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

ELI2011 Podcast: How to Fix Copyright

EDUCAUSE has released ELI2011 Podcast: How to Fix Copyright in which William Patry, Senior Copyright Counsel for Google, discusses needed copyright changes. Both digital audio and video versions of the talk are available.

| Digital Scholarship | Digital Scholarship Publications Overview | Reviews of Digital Scholarship Publications |