Entries tagged with “law” from Tools of Change for Publishing
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.
EFF's Concerns About the Google Book Search Settlement
Peter Brantley
November 3, 2008
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The Electronic Frontier Foundation (EFF) notes that the Google Book Search settlement accomplishes a degree of access that litigation might have taken years to develop, but it also observes areas of concern: fair use, innovation, competition, access, public domain and privacy.
Innovation: It seems likely that the "nondisplay uses" of Google's scanned corpus of text will end up being far more important than anything else in the agreement. Imagine the kinds of things that data mining all the world's books might let Google's engineers build: automated translation, optical character recognition, voice recognition algorithms. And those are just the things we can think of today. Under the agreement, Google has unrestricted, royalty-free access to this corpus. The agreement gives libraries their own copy of the corpus, and allows them to make it available to "certified" researchers for "nonconsumptive" research, but will that be enough?
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."
EFF Looks at the Big Questions Surrounding Digital Books
Peter Brantley
August 19, 2008
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At the Electronic Frontier Foundation (EFF), a post on what the future of digital books portends for pubishers and consumers:
Skeptics should remember that it wasn't long ago that many predicted that CDs would never replace vinyl, and later that MP3s would never replace CDs. You can still find great record stores that specialize in vinyl, but the trend towards digital music has been steady and unstoppable. And the music industry has paid a huge price for their failure to embrace the new technology. After first ignoring new technologies, they then proceeded to try to sue innovators, restrict users with DRM copy protection and then punish fans with indiscriminate lawsuits, none of which did a thing to stop online sharing of music. Sales are down, illegal filesharing is up, and no one has found a way to unite the industry around monetizing the sharing of digital music (though EFF has suggested a Better Way Forward).
Will the same thing happen to the publishing industry as books become digital? If the trend continues, with better devices promising longer battery life and better screen resolution, digital books will become a force to be reckoned with. Are we doomed to watch the publishing industry run through the same gamut of bad decisions that have plagued the recording industry for the last few years?
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)
Indiana's "Explicit" Law Struck Down
Mac Slocum
July 2, 2008
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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.
As the article notes, the law's intent was to restrict businesses that sell pornographic content from moving into areas with limited zoning regulations, but the legislation's broad framing of "explicit" material put other retailers -- including booksellers -- at risk.
Update 7/3 -- Indiana's attorney general says the state will not appeal the ruling.
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.
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. "
Ruling: First Sale Doctrine Applies to Promotional CDs
Peter Brantley
June 12, 2008
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Universal Music Group (UMG) tried to prevent sales of promotional CDs labeled "Not for Resale," but a federal district court says the first sale doctrine extends to these promotional discs. From the Electronic Frontier Foundation:
In its ruling, the district court found that the initial recipients of "promo CDs" own them, notwithstanding "not for resale" labels. The court rejected the notion that these labels create a "license," concluding that the CDs are gifts. According to the opinion, "UMG gives the Promo CDs to music industry insiders, never to be returned ... Nor does the licensing label require the recipient to provide UMG with any benefit to retain possession." (The court also found that federal postal laws relating to "unordered merchandise" establish that promo CDs are gifts to their recipients.)
With software vendors, laser printer manufacturers, and patent owners trying to strip consumers of their first sale rights with unilateral labels, licenses, and notices, today's ruling sets an important precedent holding the line against these efforts (and comes one day after the Supreme Court reaffirmed the same principle in the patent context in Quanta v. LG).
POD Publisher Files Class Action Lawsuit Against Amazon
Andrew Savikas
May 19, 2008
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On his blog Morris Rosenthal reports on a class-action lawsuit filed today against Amazon by POD publisher BookLocker.com:
Today a class action lawsuit was filed in response to Amazon’s threat to remove the "Buy" buttons of publishers who refuse to sign up with their on-demand printing subsidiary, Booksurge. If certified, the class action will most likely include all publishers who use on demand printing to print their books for distribution. If it functions like the class action lawsuits involving credit card or telephone billing that we all find ourselves party to on a regular basis, publishers will automatically be included unless they opt out. The primary plaintiff in the suit is BookLocker.com, Inc., the company that first broke the silence about the heavy-handed tactics Booksurge was using against Lightning Source's larger publisher customers.
The full complaint is available as a PDF, but I've taken the liberty of posting it here via SlideShare as well (click here if you don't see the embedded doc below):
Essentially, the complaint alleges Amazon is in violation of the Sherman Act by engaging in "tying":
An arrangement whereby the seller of some product or service requires, as a condition to the sale of that product (the tying product), that the buyer purchase some additional product (the tied product). The tying arrangement is unlawful when the seller has some power over the market for the tying product. Tying arrangements are generally per se illegal, assuming that the selling firm has the market power to force the arrangement upon its customers.
The meat of the complaint is in paragraphs 38 and 39:
Amazon forces POD publishers to use BookSurge for printing services when they might otherwise prefer to purchase such printing services elsewhere.
Amazon’s practice of tying printing services to sales in the Online Book Market unreasonably restrains trade and is unlawful per se under Section 1 of the Sherman Act.
In light of recent moves by Amazon (including reports of bullying in the UK), litigation was an inevitability. And this isn't the only pending lawsuit Amazon's involved in (it's not even the only anti-trust lawsuit Amazon is involved in -- Gerlinger v. Amazon.com is still under appeal). Amazon lists seven items in the "Legal Proceedings" section of its 2007 annual report, among them patent infringement and breach of contract, fairly standard for a public company of their size (and they're on the plaintiff side of the aisle against New York State on sales taxes). It will be interesting to see whether other POD publishers join the fray.
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