Entries tagged with “copyright” from Tools of Change for Publishing
William Patry delivering Frey Lecture in Intellectual Property Law at Duke
Andrew Savikas
November 7, 2009
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Google Senior Copyright Counsel Bill Patry, who will be one of our keynote speakers at TOC 2010, delivered a great lecture at Duke last month dissecting the "moral panic" approach to copyright debate, as exemplified by the late Jack Valenti, former CEO of the MPAA. His talk is just under 30 minutes, and then he goes into Q&A with the audience. I particularly appreciated his point that copyright is a social structure, not a moral one, and not one that's based on property rights.
Excerpting Best Practices Hinge on Intent
Mac Slocum
March 2, 2009
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A piece in the New York Times reignites the fair use debate by asking: How much excerpting does fair use cover?
It's a reasonable question, particularly since Google News, the Huffington Post and countless other sites rely on excerpt aggregation to drive traffic and sell ads. But the rules of excerpting are also -- to steal a line from Steve Jobs -- "a bag of hurt."
Fair use is a doctrine, and as much as editors, bloggers and others with an excerpting bent wish for structure (word count, percentage used, image size, etc.), it's not going to happen. Fair use is contextual and case-by-case. That's why Henry Blodget, co-founder of Silicon Alley Insider, has the right perspective:
"To excerpt others the way we want to be excerpted ourselves."
Intent is the key to proper excerpting. If your intent is to single out someone else's work, and drive attention and its associated benefits and detriments to the creator of that work, then excerpts will be short and filled with outbound links. But if your intent is to fool Google, boost your traffic, and use someone else's material to further your own efforts, then excerpts will be long and link-free -- or they'll contain links to your material.
Excerpting is an extension of white-hat vs. black-hat search engine optimization. The white hats understand that search engines are the essential utility on the Web. Gaming them for personal gain erodes value and reduces opportunities for everyone. Black hats care only about short-term efforts, so they do anything they can to turn attention into quick advertising revenue. What black hats don't realize -- or care about -- is the impact their actions have on the structure of the Internet. They're jackhammering the foundation they're standing on.
Sites that push the boundaries of excerpting are engaged in the same self-destructive behavior. They may see short-term traffic and revenue spikes, but the source sites will eventually cry foul and enact their own Draconian countermeasures. Long-term, this doesn't benefit anyone. Sites that rely on excerpted information will lose access, and originating sources will lose attention. To be effective, excerpting needs to be a mutually beneficial relationship that provides value to everyone involved. The only "rule" is intent.
Webcast Video: Youth & Creativity -- Emerging Trends in Self-Expression and Publishing
Mac Slocum
February 2, 2009
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Below you'll find the full recording from the TOC webcast, "Youth & Creativity: Emerging Trends in Self-Expression and Publishing," with Julie Baher and Bill Westerman.
Read more…Film Criticism and YouTube Don't Play Nice
Mac Slocum
January 16, 2009
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In an essay catalyzed by YouTube's removal of a film criticism archive, which included ripped clips from copyrighted movies, Matt Zoller Seitz addresses the disconnect between takedown policies and the gray areas of digital culture:
There should be a way to distinguish between piracy-for-profit (or unauthorized, free redistribution) and creative, interpretive, critical or political work that happens to use copyrighted material. And there must be an alternative to unilateral takedowns. The issues aren't just legal, they're practical. History has demonstrated that there's no copyright protection that can't be defeated, no corporate edict that can't be subverted. And given the technological sophistication that permits digital watermarking, there ought to be a way to make sampling of any sort, authorized or not, scaled to suit the filmmakers' means, profitable for the rights holders, and as fully automated as the copyright-infringement-scouring that's currently happening all over the Internet.
EFF Attorney: Google Book Search Settlement Weakens Innovation
Peter Brantley
November 20, 2008
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In an editorial in The Recorder, Fred von Lohmann of the Electronic Frontier Foundation says Google's settlement with publishers and authors signals an implicit abandonment of Google's legal team working on behalf of innovation across Silicon Valley:
.. By settling rather than taking the case all the way ... Google has solved its own copyright problem -- but not anyone else's. Without a legal precedent about the copyright status of book scanning, future innovators are left to defend their own copyright lawsuits. In essence, Google has left its former copyright adversaries to maul any competitors that want to follow its lead.
Google will doubtless be considering the same endgame for the Viacom lawsuit against YouTube. If Google can strike a settlement with a large slice of the aggrieved copyright owners, then it solves the copyright problem for itself, while leaving it as a barrier to entry for YouTube's competitors.
But when innovators like Google cut individual deals, it weakens the Silicon Valley innovation ecology for everyone, because it leaves the smaller companies to carry on the fight against well-endowed opponents. Those kinds of cases threaten to yield bad legal precedents that tilt the rules against disruptive innovation generally.
Slides from "What Publishers Need to Know about Digitization" Webcast
Liza Daly
November 13, 2008
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TOC will be posting a complete recording of the presentation, but in the meantime I've posted the slides from yesterday's webcast, "What publishers need to know about digitization" on Slideshare.
Thanks to everyone who attended and especially to those who asked so many excellent questions.
Harvard Won't Permit Google Scans of In-Copyright Material
Mac Slocum
October 31, 2008
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Harvard University Library (HUL) has been a partner in Google's library scanning project since 2004, but the boundaries of that partnership will not expand to the in-copyright works covered under Google's new Book Search settlement. From the Harvard Crimson:
In a letter released to library staff, University Library Director Robert C. Darnton '60 said that uncertainties in the settlement made it impossible for HUL to participate.
"As we understand it, the settlement contains too many potential limitations on access to and use of the books by members of the higher education community and by patrons of public libraries," Darnton wrote.
"The settlement provides no assurance that the prices charged for access will be reasonable," Darnton added, "especially since the subscription services will have no real competitors [and] the scope of access to the digitized books is in various ways both limited and uncertain."
The Crimson notes that Harvard will continue to allow scanning of books with expired copyrights.
Reaction to Google Book Search Settlement
Mac Slocum
October 29, 2008
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Updated 10/30, 7:53 AM -- Publishing experts, bloggers and interested parties are weighing in on the Google Book Search settlement. I'll be updating this post as new material comes in. If you see something that deserves notice please post a comment:
Posts Added October 30
On the Google Book Search agreement
(Larry Lessig, Lessig Blog)
The hard question for the registry is how far they will go to support the range of business models that authors and publishers might have. E.g., Yale Press "Books Unbound" and Bloomsbury Academic both have Creative Commons licensed authors. Will the registry enable that fact to be recognized? Indeed, though the comment was made by someone from the plaintiffs' side that it would be "perverse" for authors to choose free licensing, it is perfectly plausible that an author would choose to make his or her work available freely electronically, but contract with one commercial publisher to deal with selling the physical book, or licensing rights commercially. That, again, is the Bloomsbury Academic business model. Ideally, this non-profit should encourage the widest range of rights-respecting business models. One clear signal about what kind of organization this is will come from this.
Posts Added October 29
My initial take on the Google-publishers settlement
(Siva Vaidhyanathan, The Googlization of Everything)
From the beginning, this has seemed to be a major example of corporate welfare. Libraries at public universities all over this country (including the one that employs me) have spent many billions of dollars collecting these books. Now they are just giving away access to one company that is cornering the market on on-line access. They did this without concern for user confidentiality, preservation, image quality, search prowess, metadata standards, or long-term sustainability. They chose the expedient way rather than the best way to build and extend their collections.
Short Term Profits Over Long Term Principles; Google's Caving On Book Scanning Is Bad News (Mike Masnick, Techdirt)
... it's quite upsetting to see Google cave on this. The settlement does not establish any sort of precedent on the legality of creating such an index of books, and, if anything pushes things in the other direction, saying that authors and publishers now have the right to determine what innovations there can be when it comes to archiving and indexing works of content. Unfortunately, this was really inevitable. As was the case with Google caving on YouTube and the Associated Press, it becomes a situation where Google realizes it can throw a little cash at the problem to make it go away -- while also creating a large barrier to entry for any more innovative startup. From a short-term business perspective this might make sense, but from a long-term business perspective (and wider cultural perspective) it's terrible.
Google Book Search Lawsuit Settled, Fair Use Questions Remain ... (Sherwan Siy, Public Knowledge)
But while the legal landscape isn't altered too much by the settlement, the practical landscape could be. Rightsholders and other potential plaintiffs might view this settlement as the model for all future relationships with digitization efforts--if Google pays for digitizing, why shouldn't everyone else? Such a landscape might make a plaintiff more likely to sue, although the results in court, ideally, shouldn't differ, with or without this settlement in place.
Boondoggle in Google Rights Win? (Warning, Rant) (Erik Sherman, Erik Sherman's WriterBiz)
Going forward, people will buy books they want online and libraries will pay for access. Who gets 37 percent of the revenue? Google. Plus, there's advertising revenue and Google gets the same percentage of that. So for $125 million, it's probably nailed down many, many times more future revenue. This will turn out to be a pretty cheap business acquisition for them.
Author's Guild Settlement Insta-Blogging (James Grimmelmann, The Laboratorium)
Read more…The issue is that this is a class-action settlement requiring judicial approval to bind all authors. It's practically impossible for anyone else to take advantage of Google's terms without filing suit to obtain a similar class-binding order. Individual license negotiation -- the route that Google considered and rejected when it started the project -- is utterly infeasible. Since voluntary negotiation can't produce the result one needs to do comprehensive indexing, there's still no market for it, and this settlement therefore shouldn't prejudice future fair use claims by search engines.
MyGazines Settles With Magazine Publishers
Mac Slocum
October 3, 2008
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Mygazines, a Napster-esque magazine service, has reached a settlement with a host of magazine publishers. From Folio:
... according to a source with knowledge of the terms, confirmed later by additional court documents, Mygazines has agreed to remove all of the publishers' copyrighted content, review and screen uploads for any content not authorized by the publishers and open a channel to allow Mygazines to be notified when copyrighted content appears.
The service is still open, but Folio says many of the titles present at the site's launch are no longer available. Mygazines is promoting a vague Publisher Program that offers demographics and revenue sharing.
Orphaned Works Find No Home in House
Peter Brantley
October 1, 2008
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Wired's Threat Level blog notes that the orphan works bill is likely dead on arrival in the House of Representatives after a positive vote in the Senate, as a result of the wee little fiscal problem confronting the country:
The act changes the rules and reduces and sometimes nullifies damages for infringing uses of so-called "orphaned" works as long as there was a "diligent" effort to locate the copyright owner. Orphaned creative works are those in which the copyright holder cannot be promptly located.
Lobbyists have assured Threat Level that the House, which is mired in trying to broker an economic revival package, won't take up the measure, at least not until after the November elections.
News Roundup: Sony Reader Arrives in UK, Google Scanning Newspaper Archives, Blanket Copyright Licenses vs Fair Use
Mac Slocum
September 12, 2008
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UK Reaction to Sony Reader Release
Sara Lloyd discusses the impact of the Sony Reader's recent release in the United Kingdom:
Anecdotally, Waterstones store staff report a great deal of interest from customers, and the rumour mills (or well-planned leak??) put a 6 figure number on the Sony Readers sold by the morning of Thursday 4th September.
As I'm sure all of those working in the digital publishing departments of trade publishing houses will agree, it's nice finally to have a major high street bookselling brand pitch itself into the ebook ring so wholeheartedly - and the Sony device is the most compelling (and competitively priced) there is of the dedicated devices so far available here in the UK. I must say it did make my heart leap just a little bit to see huge POS displays promoting the Sony Reader and the associated ebook catalogue from Waterstones in the Tottenham Court Road and Picadilly branches, and it was fun to go in and do some underground detective work to discover that the Waterstones staff seemed quite clued up about it all. (Continue reading)
Google Scanning Newspaper Archives
Google is extending its scanning efforts to newspaper archives. From the New York Times:
Under the expanded program, Google will shoulder the cost of digitizing newspaper archives, much as the company does with its book-scanning project. Google angered some book publishers because it had failed to seek permission to scan books that were protected by copyrights. It will obtain permission from newspaper publishers before scanning their archives.
Google ... will place advertisements alongside search results, and share the revenue from those ads with newspaper publishers. (Continue reading)
Colleges Weigh Blanket Copyright Licenses vs Fair Use Rights
The Copyright Clearance Center is extending its offer of blanket licenses to larger universities. In a 2007 article in the Chronicle of Higher Education (subscription required), some school administrators expressed concern about the implicit waiver of fair use assertions:
But some librarians are ambivalent about blanket licenses, Mr. Rehbach [Jeffrey R. Rehbach, the library-policy adviser at Middlebury College] says, because they fear that colleges will pay for copyright licenses instead of asserting their rights under fair-use doctrine. "We debate back and forth whether this is the best model for us," he says. "As we move toward more licensed products, are we giving up basic rights under the law?"
Colleges Weigh Blanket Copyright Licenses vs Fair Use Rights
Peter Brantley
September 10, 2008
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The Copyright Clearance Center is extending its offer of blanket licenses to larger universities. In a 2007 article in the Chronicle of Higher Education (subscription required), some school administrators expressed concern about the implicit waiver of fair use assertions:
But some librarians are ambivalent about blanket licenses, Mr. Rehbach [Jeffrey R. Rehbach, the library-policy adviser at Middlebury College] says, because they fear that colleges will pay for copyright licenses instead of asserting their rights under fair-use doctrine. "We debate back and forth whether this is the best model for us," he says. "As we move toward more licensed products, are we giving up basic rights under the law?"
Ruling: Consider Fair Use Before Issuing Takedowns
Peter Brantley
August 22, 2008
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A fairly significant ruling came down Wednesday in Lenz v. Universal, a rather infamous case where Universal Music Publishing Group issued a takedown against a YouTube video of a young child dancing to a song in the background -- a song in which Universal maintained some rights. Universal later acknowledged that this was a fair use of the music, an incidental use, but the Electronic Frontier Foundation (EFF) pursued the aggressive use of Digital Millennium Copyright Act (DMCA) takedowns. The court ruled in the EFF's favor, and it should have significant outcomes. The EFF writes:
Universal moved to dismiss the case, claiming, among other things, that it had no obligation to consider whether [Stephanie] Lenz's use was fair before sending its notice. The judge firmly rejected Universal's theory:
" [A] fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with "a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law," the owner must evaluate whether the material makes fair use of the copyright."
Universal had insisted that copyright owners could not efficiently police copyright infringement if they had to consider whether a give use was fair. Not so, said the judge:
"[I]n the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner's ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review."
TOC Recommended Reading
Mac Slocum
August 21, 2008
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On Being Positive in August (Adam Hodgkin, Exact Editions)
Publishers need to consider the possibility that anything that can be published, will certainly be published digitally, and will, in principle, be available anywhere from many devices. That does not mean that it all will be free (why should it mean that?). But it does mean that it will either be available for free (sponsored by advertising) or because someone wants to buy, give, or rent it.
A New Model for News (pdf) (Associated Press Report)
A key question for news planning today is "How can this story be told?" Increasingly, the answer can be found outside traditional storytelling formats. In one popular example in the 2006 U.S. elections, an AP multimedia producer "mashed up" excerpts from political attack ads with a musical mix. The result garnered more than half a million hits after going viral and getting passed along from the customer sites that displayed the piece. (p.61)
Mygazines.com: The Magazine Industry's "Napster Moment"? (Joe Wikert, Publishing 2020)
This is a golden opportunity for the magazine industry to see how a Napster-like platform for periodicals could and should work effectively. Mygazines is essentially doing e-content R&D for the entire magazine industry; I just hope the industry takes the time to study and understand the results before they look to kill the service.
New Rulings Let Pubs Create Digital Archives With No Additional Royalties
Mac Slocum
July 7, 2008
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We often discuss the limited utility of "exact replica" digital editions of books, magazines and other content, but that same level of pure duplication could prove useful to publishers who reprint back issues in digital archive products. Law.com says two recent rulings allow publishers to create and sell exact digital archives without paying freelance photographers and illustrators additional royalties:
A publisher, according to the en banc majority, may reproduce a freelance photographer's work in a reprint of the original collective work (such as a magazine, newspaper or encyclopedia) to which that photographer contributed; or a revision of that collective work; or a later collective work "in the same series." Reproduction of copyrighted photos in a new work without permission would constitute copyright infringement.
In 2001's New York Times v Tasini, the U.S. Supreme Court found that publishers who post freelancer-created material through Lexis-Nexis and similar online databases must first get permission from the freelancer. The difference between Tasini and these latest rulings lies in "exactness" -- new products (Web sites, databases, mobile initiatives, etc.) require permission from freelancers, but 1:1 digital reprints require no further permission or payment. (Note: Presumably, most publishers now use carefully-worded contracts that stipulate digital permissions. These current cases apply to pre-digital contracts and older material).
In the majority opinion for Greenberg v National Geographic Society, one of the two recent cases, Judge Rosemary Barkett discusses the finer points of the Tasini framework:
Because the freelance authors' articles were "presented to, and retrievable by, the user in isolation, clear of the context of the original print publication" ... the publishers could not claim a privilege ... Thus, the "crucial fact" for the Supreme Court was the databases' ability to "store and retrieve articles separately within a vast domain of diverse texts" ... The articles were presented to the user "standing alone and not in context."
In Greenberg, National Geographic was in the clear because the digital archive it created included the same text, formatting, page numbers and advertising as the original print-based magazines; the digital material was not accessed "in isolation." This is an important distinction. If the context of the original print publication -- images, ads, pages numbers, etc. -- is not readily available or apparent to the end user, there's a chance publishers will not be covered by the "exact archive" privileges.
Law.com notes that add-ons, such as search engines that show results from across digital archives, do not transform reprint archives into new products.
News Roundup: Dual-Display E-Reader Prototype, Content Tracking Not Just for Takedowns Anymore, Indiana "Explicit" Law Struck Down
Mac Slocum
July 3, 2008
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Researchers Develop Dual-Display E-Reader
Researchers from Berkeley and the University of Maryland have built a dual-display e-reader prototype that uses traditional book-reading navigation (i.e. page turns, flipping the cover under, etc.). From the New Scientist:
The two leaves can be opened and closed to simulate turning pages, or even separated to pass round or compare documents. When the two leaves are folded back, the device shows one display on each side. Simply turning it over reveals a new page. (See video of prototype)
Content Tracking Tools: Control for Some, Distribution for Others
An article in BusinessWeek looks at various uses for content tracking systems, from command-and-control monitoring to partnership opportunities via broad distribution:
Just ask Sarah Chubb, president of CondéNet.com, owner of sites ranging from the Epicurious.com cooking site to fashion site Style.com to WiredDigital, the online arm of Wired magazine. A few years ago, Chub enlisted a team of people to scour the Web for unlicensed content use. Now she has a team that does the opposite -- figuring out how to get CondéNet's recipes, fashion photos, and other content onto up-and-coming blogs and social networking sites. Her team is using Attributor's [content tracking] system not to issue takedown notices but to spot new targets. (Continue reading | Related commentary)
Indiana's "Explicit" Law Struck Down
An Indiana law requiring retailers who sell explicit material to register with the state was struck down by a U.S. Federal Court on First Amendment grounds. From the Indianapolis Star:
The law would have required anyone who intended to sell sexually explicit materials -- which plaintiffs say could have included classic literature, as well as pornography -- to register with Indiana's secretary of state, pay a $250 fee and submit a statement with details about the materials. It would have applied to new businesses and existing ones that relocated or began selling the materials after June 30. (Continue reading)
Mistake Shows Need for Clear Communication in Piracy Discussions
Mac Slocum
July 2, 2008
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BusinessWeek recently took a look at the new generation of Web content recognition systems, and right up front the article illustrates one of the essential problems with current piracy discussions: conclusions and misinterpretations fueled by emotion and ambiguity.
In this case, the incorrect conclusion was mine. It began with this passage:
For a media executive, the appeal of a content recognition system is clear. With a glance, a publisher or studio head can plainly see where, when, and how their content is being viewed. In a demonstration for BusinessWeek earlier this year, Attributor executives showed how many times scenes from "The Sopranos" had appeared on 20 leading video sites since they first aired on TV. In all, 1,500 scenes from 52 episodes had been viewed 32 million times. For Time Warner's (TWX) HBO, those viewings might have brought in more than $1 million, said Attributor Chief Executive Officer Jim Brock. [Emphasis added.]
The $1 million figure pushed my buttons. Brock was using piracy fears and unsubstantiated figures to further an agenda ... or so I thought. The author of the article, Peter Burrows, clarified the $1 million figure in a reply to an email I sent: It turns out that Brock was estimating revenue from advertising that did, or could have, run next to the "Sopranos" clips. I'm glad I asked, because there's a big difference between an overlooked opportunity and outright theft.
If we're talking about missed revenue from advertising rather than more inflammatory lost revenue from piracy, then we can further the discussion to advertising-based opportunities and solutions. But if a big figure is thrown out and there's no sense of where it comes from or how it applies, the discussion invariably turns emotional -- i.e. "we're losing money to pirates!", or in my case "more piracy doublespeak!" An exec informed of a $1 million missed opportunity tends to react differently than someone suffering from a $1 million theft (measured analysis vs. scorched-earth cease and desist campaigns).
This example, including the clarification, showcases the importance of clear communication when dealing with an inherently murky topic like piracy. As we've noted previously, piracy is not clear cut. It's natural to condemn the moral and financial violations of content pirates, but outright dismissal could obscure publicity or branding opportunities that yield better long-term results than Draconian countermeasures. Alternative perspectives should at least be considered before lawsuits are launched ... and you need reliable information to reach useful -- and correct -- conclusions.
Copyright Office Catching Up with Digital
Peter Brantley
June 30, 2008
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Another step in the automation of the copyright office. Via Ars Technica:
550,000 registrations a year pass through the Copyright Office, so it's in both the government's and the taxpayers' interest to make the system efficient enough to process those applications in a timely manner. On Tuesday, the Copyright Office will throw the switch on a system called, creatively, the "electronic Copyright Office," or eCO. The system has been in beta for months, and it allows creators to submit copyright registrations and even some actual works directly through the tubes.
Content Tracking Tools: Control for Some, Distribution for Others
Peter Brantley
June 26, 2008
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An article in BusinessWeek looks at various uses for content tracking systems, from command-and-control monitoring to partnership opportunities via broad distribution:
Just ask Sarah Chubb, president of CondéNet.com, owner of sites ranging from the Epicurious.com cooking site to fashion site Style.com to WiredDigital, the online arm of Wired magazine. A few years ago, Chub enlisted a team of people to scour the Web for unlicensed content use. Now she has a team that does the opposite -- figuring out how to get CondéNet's recipes, fashion photos, and other content onto up-and-coming blogs and social networking sites. Her team is using Attributor's [content tracking] system not to issue takedown notices but to spot new targets.
"We used to build our sites on the idea that people would come to our home page," Chubb says. "Now, we're consciously trying to put our content in a lot of places. In most of those cases, there's a revenue opportunity for us," she says, adding that she has no interest in using the technology to launch lawsuits. "
Mark Cuban: Copyright Law Gives Hulu Advantage Over YouTube
Peter Brantley
June 17, 2008
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Mark Cuban says the Digital Millennium Copyright Act (PDF) gives Hulu a distinct advantage over YouTube:
Hulu has one HUGE advantage over YouTube, it has the right to sell advertising in and around every single video on its site. It can package and sell any way that might make its customers happy. YouTube on the other hand, has that right for only the small percentage of the videos on its site that it has a licensing deal with. For probably 99pct or more of the videos on the site, YouTube isn't supposed to know what they even are.
How can that be? Because YouTube hides behind the Digital Millennium Copyright Act. Hulu is a media site that presents videos with advertising. It can do whatever it wants. YouTube is a hosting service. It's not allowed to know what videos are uploaded by users and its not allowed to generate revenue against those videos. It can only sell advertising around videos it has licenses to.
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