Category: Digital Copyright Wars

The European Orphan Works Directive: An EIFL Guide

EIFL has released The European Orphan Works Directive: An EIFL Guide.

Here's an excerpt from the announcement:

This Guide sets out the background and key provisions of the Directive. It makes recommendations for libraries for implementation in EIFL partner countries that are members of the EU, and advises libraries in EIFL partner countries with EU bilateral agreements on crafting solutions that best meet their local circumstances and capacity.

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"The HathiTrust Case and Appeal: A Policy Brief"

The EDUCAUSE Policy Office has released "The HathiTrust Case and Appeal: A Policy Brief."

Here's an excerpt:

On October 10, 2012, Judge Harold Baer of the U.S. District Court in New York ruled in favor of the HathiTrust Digital Library (HDL) and its university partners in a copyright infringement suit brought by the Authors Guild (AG) and other groups. This policy brief outlines why this decision was important for higher education, what impact the February 2013 appeal might have, and next steps.

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"British Invasion: How the United Kingdom’s Approach to International Harmonization of Copyright Law Can Inform United States Orphan Works Legislation"

Abigail Bunce has self-archived "British Invasion: How the United Kingdom's Approach to International Harmonization of Copyright Law Can Inform United States Orphan Works Legislation" in SSRN.

Here's an excerpt:

This Note argues that the United States should propose and adopt legislation to resolve the orphan works issue based on the licensing system recently enacted in the United Kingdom. Part I discusses the common economic principles underlying the American and British copyright systems and traces their different approaches to international harmonization. Part II introduces orphan works and the various issues they present, from their first identification through their present controversy within the mass digitization context. Part III discusses the past and current approaches on the American, British, and European Union stages to solve the orphan works issue. Finally, Part IV evaluates and compares the approaches, arguing that while the U.S. should primarily adopt the system advocated by the U.K., the U.K. system could equally benefit from ideas inherent in the U.S. system.

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"Brief of Digital Humanities and Law Scholars as Amici Curiae in Authors Guild v. Hathitrust"

Matthew Jockers, Matthew Sag, and Jason Schultz have self-archived "Brief of Digital Humanities and Law Scholars as Amici Curiae in Authors Guild v. Hathitrust" in SSRN.

Here's an excerpt:

This Amicus Brief was filed in the United States Court of Appeal for the Second Circuit in the case of Authors Guild v. Hathitrust on June 4, 2013. The case is on Appeal from the United States District Court for the Southern District of New York, No. 11 CV 6351 (Baer, J.)

Amici are over 100 professors and scholars who teach, write, and research in computer science, the digital humanities, linguistics or law, and two associations that represent Digital Humanities scholars generally. . . .

The Court's ruling in this case on the legality of mass digitization could dramatically affect the future of work in the Digital Humanities. The Amici argue that the Court should affirm the decision of the district court below that library digitization for the purpose of text mining and similar non-expressive uses present no legally cognizable conflict with the statutory rights or interests of the copyright holders.

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Library Copyright Alliance Files Brief in Georgia State University E-Reserves Case

The Library Copyright Alliance has filed a brief in the Cambridge U. Press et al. v. Mark P. Becker et al. e-reserves copyright case that was prepared by the EFF and Jonathan Band.

Here's an excerpt from the EFF announcement:

In the amicus brief filed today, EFF urges the appeals court to see what the district court saw: the vast majority of uses at issue were protected fair uses. Moreover, as a practical matter, the licensing market the publishers say they want to create for e-reserves will never emerge—not least because libraries can't afford to participate in it. Even assuming that libraries could pay such fees, requiring this would thwart the purpose of copyright by undermining the overall market for scholarship. Given libraries' stagnant or shrinking budgets, any new spending for licenses must be reallocated from existing expenditures, and the most likely source of reallocated funds is the budget for collections. An excerpt license requirement thus will harm the market for new scholarly works, as the works assigned for student reading are likely to be more established pieces written by well-known academics. Libraries' total investment in scholarship will be the same but resources will be diverted away from new works to redundant payments for existing ones, in direct contradiction of copyright's purpose of "promot[ing] progress."

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House Judiciary Committee Chairman Announces Comprehensive Review of Copyright Law

House Judiciary Committee Chairman Bob Goodlatte has announced that his committee will undertake a comprehensive review of copyright law.

Here's an excerpt from the announcement:

There is little doubt that our copyright system faces new challenges today. The Internet has enabled copyright owners to make available their works to consumers around the world, but has also enabled others to do so without any compensation for copyright owners. Efforts to digitize our history so that all have access to it face questions about copyright ownership by those who are hard, if not impossible, to locate. There are concerns about statutory license and damage mechanisms. Federal judges are forced to make decisions using laws that are difficult to apply today. Even the Copyright Office itself faces challenges in meeting the growing needs of its customers—the American public.

So it is my belief that a wide review of our nation's copyright laws and related enforcement mechanisms is timely. I am announcing today that the House Judiciary Committee will hold a comprehensive series of hearings on U.S. copyright law in the months ahead. The goal of these hearings will be to determine whether the laws are still working in the digital age. I welcome all interested parties to submit their views and concerns to the Committee.

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"The Copyright Axis of Evil: The Academic Library Must Confront Threats to User Rights"

ACRL has released "The Copyright Axis of Evil: The Academic Library Must Confront Threats to User Rights" as part of the ACRL 2013 Proceedings.

Here's an excerpt:

This paper will define the key copyright developments that will challenge academic libraries over the next two years (2013-15) as they seek to support teaching, learning and research at their institutions. American libraries have benefited in significant ways from the availability of fair use (section 107) and various exceptions (section 108) in the US copyright law. But a new library treaty in development at the World Intellectual Property Organization highlights the expanding influence of global copyright developments on national policies.

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"Fair Use & Mass Digitization: The Future of Copy-Dependent Technologies after Authors Guild v. Hathitrust"

Angel Siegfried Diaz has self-archived "Fair Use & Mass Digitization: The Future of Copy-Dependent Technologies after Authors Guild v. Hathitrust" in SSRN.

Here's an excerpt from:

This note discusses the future of digital libraries and other products reliant on mass digitization in the wake of the Hathitrust decision. First, this note presents an overview of U.S. copyright protection and the ways in which its goal of incentivizing authors has consistently been balanced by efforts to protect preservation, access, and fair use. . . .

Second, this note discusses the trial court opinion in Authors Guild v. Hathitrust and the court's fair use finding regarding the full-text search index and copies for the print disabled. . . .

Third, this note discusses the Hathitrust decision's effect on the future of the Google Books case and argues that the fair use ruling paves the road for a similar finding while also giving Google leverage in its ongoing settlement negotiations. . . .

Fourth, after exploring the judicial efforts to protect useful technologies as a matter of public policy, this note explores legislative solutions that would better advance copyright's goals of promoting education, research, preservation, and access.

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Digital Music Consumption on the Internet: Evidence from Clickstream Data

The Institute for Prospective Technological Studies. has released Digital Music Consumption on the Internet: Evidence from Clickstream Data.

Here's an excerpt:

This paper analyses the behaviour of digital music consumers on the Internet. Using clickstream data on a panel of more than 16,000 European consumers, we estimate the effects of illegal downloading and legal streaming on the legal purchases of digital music. Our results suggest that Internet users do not view illegal downloading as a substitute for legal digital music. Although positive and significant, our estimated elasticities are essentially zero: a 10% increase in clicks on illegal downloading websites leads to a 0.2% increase in clicks on legal purchase websites. Online music streaming services are found to have a somewhat larger (but still small) effect on the purchases of digital sound recordings, suggesting complementarities between these two modes of music consumption. According to our results, a 10% increase in clicks on legal streaming websites leads to up to a 0.7% increase in clicks on legal digital purchase websites. We find important cross country differences in these effects.

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Presentations from the Congressional Internet Caucus Advisory Committee’s State of the Net Conference

The Congressional Internet Caucus Advisory Committee has released presentations from the State of the Net conference.

Here's a description of the conference:

Attracting over 600 attendees annually, the State of the Net Conference provides unparalleled opportunities to network and engage on key policy issues. The State of the Net Conference is the largest information technology policy conference in the U.S. and the only one with over 50 percent Congressional staff and government policymakers in attendance. The State of the Net Conference is the only tech policy conference routinely recognized for its balanced blend of academics, consumer groups, industry and government.

Here's an example presentation: First Sale and No Resale: Could SCOTUS and the Internet Redefine Content Ownership? .

| Scholarly Electronic Publishing Weblog | Digital Scholarship |

EFF and Public Knowlege’s Comments on Copyright Office’s Orphan Works Inquiry

The Electronic Frontier Foundation and Public Knowledge have released their comments on the Notice of Inquiry by the Copyright Office for comments regarding orphan works, Docket No. 2012-12.

Here's an excerpt:

A range of options, none of them exclusive, can alleviate the problems created by the prevalence of orphan works. Even in the absence of more systemic change that can stem the growing number of works whose copyright information disappears into obscurity, the application of fair use and legislative work on damages reduction (both for orphan works specifically and for good faith fair uses generally) can allow a variety of users to bring a variety of works to the public. Mass digitization projects promise to be a part of that process, and should be able to proceed in many cases under current law. However, more ambitious plans for broader, publicly available MDPs could be incentivized to serve the public interest with additional damages limitations, attended by public interest conditions. We

| Google Books Bibliography (XHTML website; over 320 entries) | Digital Scholarship |

Surprise Brief by Justice Department in Georgia State University E-Reserves Case

The Justice Department has filed a brief in the Cambridge University Press et al. v. Patton et al. case by for a 21-day extension in which to "to file any amicus brief in support of appellants or in support of neither party."

Here's an excerpt from "Obama Administration Considers Joining Publishers in Fight to Stamp out Fair Use at Universities":

In digging into this, we've heard from a few sources that it's actually the US Copyright Office that has asked the DOJ to weigh in on the side of the publishers and against the interests of public universities and students.

Read more about it at "Publishers and Library Groups Spar in Appeal to Ruling on Electronic Course Reserves," "Unwelcome Intervention?," and "U.S. Attorneys May Weigh in On GSU E-Reserves Case."

| Google Books Bibliography (XHTML website; over 320 entries) | Digital Scholarship |

"The Authors Guild v. Hathitrust: A Way Forward for Digital Access to Neglected Works in Libraries"

James Aaron has self-archived "The Authors Guild v. Hathitrust: A Way Forward for Digital Access to Neglected Works in Libraries" in SSRN.

Here's an excerpt:

This Comment begins by describing the HathiTrust Orphan Works Project and what it renames the neglected works problem. Next, it examines the legality of the project under current copyright law, focusing mainly on fair use under section 107, and concludes that it is unclear whether the project violates copyright law. Finally it analyzes whether this result fits the policy goals of copyright, and because it does not, proposes both legislative and judicial changes to copyright law to make it clear that in the proper circumstances, nonprofit, educational uses of neglected works do not violate copyright law.

| Google Books Bibliography (XHTML website; over 320 entries) | Digital Scholarship |

"Open-Sourcing the Global Academy: Aaron Swartz’s Legacy"

Rebecca Gould has self-archived "Open-Sourcing the Global Academy: Aaron Swartz's Legacy" in SSRN.

Here's an excerpt:

This essay examines Swartz's Open Access vision, and traces the challenges he faced in carrying out his dream. Arguing that Open Access is the future of scholarship in the digital age, I outline concrete strategies for bringing Swartz's dream to fruition.

| Scholarly Electronic Publishing Weblog | Digital Scholarship |

"SOPA, PIPA, ACTA, TPP: An Alphabet Soup of Innovation-Stifling Copyright Legislation and Agreements"

Michael A. Carrier has published "SOPA, PIPA, ACTA, TPP: An Alphabet Soup of Innovation-Stifling Copyright Legislation and Agreements" in the Northwestern Journal of Technology and Intellectual Property.

Here's an excerpt:

In this article, I discuss the effects of four copyright proposals on innovation: the Stop Online Piracy Act (SOPA), PROTECT IP Act (PIPA), Anti-Counterfeiting Trade Agreement (ACTA), and Trans-Pacific Partnership Agreement (TPP). These proposals contain provisions that would impose copyright liability in a vague and far-reaching manner that would harm innovators, dissuade venture capitalists, and ultimately stifle innovation.

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

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

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

Here's an excerpt:

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

| Digital Scholarship's 2012 Publications | Digital Scholarship |

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

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

Here's an excerpt:

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

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

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

| Google Books Bibliography | Digital Scholarship |

Republican Study Committee Released Progressive Copyright Brief Then Withdrew It

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

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

| Digital Scholarship |

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

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

Here's the brief.

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

| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

Copyright: Authors Guild Appeals HathiTrust Ruling

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

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

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

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

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

"Suing HathiTrust"

C.E. Petit has published "Suing HathiTrust" in Scrivener's Error: Warped Weft.

Here's an excerpt:

This is an initial review only of the third segment of the Google BookScan lawsuits, generally known as the "HathiTrust suit" and formally known as Authors' Guild, Inc. v. HathiTrust, No. 11-6351 (S.D.N.Y.) (Baer, J.). The first two segments were the Authors' Guild's lawsuit against Google, and the publishers' lawsuit against Google (which were later consolidated… and at this writing may be severing). As a side note, the HathiTrust matter was referred to Judge Chin for further consolidation with the existing GBS suits, but was rejected as not sufficiently related… and inconsistent with Judge Chin's elevation to the Second Circuit, although the rejection did not emphasize that issue.

| A Look Back at 23 Years as an Open Access Publisher | Digital Scholarship |

No Ripping: Copyright Office Issues "Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies"

The U.S. Copyright Office has issued the final rule for the "Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies."

Of particular interest is section "IV. Classes Considered But Not Recommended, D. Motion Pictures and Other Works on DVDs and Other Media—Space Shifting," which starts on page 58.

Here's an excerpt:

Proponent Public Knowledge stated a desire to move lawfully acquired motion pictures on DVDs to consumer electronic devices, such as tablet computers and laptop computers, that lack DVD drives. It asserted that consumers' inability to play lawfully acquired DVDs on the newest devices adversely affected noninfringing uses of the works contained on DVDs, and that a reasonable solution was for these consumers to copy the motion pictures into a format that could be viewed on the new devices. . . .

Public Knowledge cited RIAA v. Diamond Multimedia Systems Inc., 180 F.3d 1072 (1999), and Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), in support of its contention that space shifting is a noncommercial personal use, and therefore a fair use. . . .

The Register recognized that there is significant consumer interest in the proposed exemption. Proponents, however, had the burden of demonstrating that the requested use was noninfringing. Neither of the two key cases relied upon by proponents, however, addresses or informs the space shifting activities at issue. . . .

The Register further observed that the law does not guarantee access to copyrighted material in a user's preferred format or technique. Indeed, copyright owners typically have the legal authority to decide whether and how to exploit new formats. The Register noted that while the law may someday evolve to accommodate some of proponents' proposed uses, more recent cases touching upon space shifting confirm that the fair use implications of various forms of space shifting are far from settled. . . .

In urging that space shifting is a fair use, Public Knowledge characterized the copying of motion pictures for use on personal devices as a "paradigmatic noncommercial personal use" that could facilitate a transformative use. It further asserted that integrating reproductions of motion pictures from DVDs into a consumer's media management software was analogous to the integration of thumbnail images into internet search engines found to be a transformative use in Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007).

The Register did not agree with this analysis. In her view, the incorporation of reproductions of motion pictures from DVDs into a consumer's media management software is not equivalent to the provision of public search engine functionality. Rather, it is simply a means for an individual consumer to access content for the same entertainment purpose as the original work. Put another way, it does not "add[] something new, with a further purpose or different character, altering the first with new expression, meaning," or advance criticism, comment, or any other interest enumerated in the preamble of Section 107. The Register therefore concluded that the first fair use factor did not favor a finding of fair use. The Register additionally determined that where creative works were being copied in their entirety, factors two and three also weighed against fair use, and that there was an inadequate basis in the record to conclude that the developing market for the online distribution of motion pictures would not be harmed by the proposed uses.

Finally, the Register concluded that proponents had failed to demonstrate that the use of a reasonably priced peripheral, a different device, or an online subscription service to access and play desired content did not offer a reasonable alternative to circumvention. Accordingly, the Register was not persuaded that the inability to engage in the space shifting activities described by proponents is having a substantial adverse impact on consumers' ability to make noninfringing uses of copyrighted works.

Read more about it at "United States Copyright Office: Ripping Is Illegal."

| Reviews of Digital Scholarship Publications | Digital Scholarship |

ALA Joins Owners’ Rights Initiative

ALA has joined the Owners' Rights Initiative.

Here's an excerpt from the announcement:

Today, the American Library Association announced that it has joined—as a founding member—the Owners' Rights Initiative (ORI)—a coalition of retailers, libraries, educators, Internet companies and associations working to protect ownership rights in the United States.

The coalition was formed to champion "first-sale rights," or ownership rights, as the issue will be taken up by the U.S. Supreme Court in the case of Kirtsaeng vs. Wiley & Sons, Inc. on October 29, 2012. The Supreme Court's decision could have adverse consequences for libraries and call into question libraries' abilities to lend books and materials that were manufactured overseas.

| Reviews of Digital Scholarship Publications | Digital Scholarship |

"Brief of Digital Humanities and Law Scholars as Amici Curiae in Authors Guild v. Google"

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 |

Hathitrust Wins Authors Guild, Inc. et al. v. Hathitrust et al. Case

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 |