Plus ca change, plus c’est la meme chose (GBS again) November 17, 2009
Posted by Kevin Smith in : Uncategorized , add a commentIn the brief time since the Amended Google Books Settlement was filed with the court (on Friday the 13th) and released to the public, there has been a flurry of commentary from a variety of perspectives. Two interesting themes have emerged, however, from those on both sides of the great debate over whether the Google Books project is a good thing or a bad thing. First, both sides seem to acknowledge that the changes have not been all that substantial. Second, no one seems to think that the debate and legal maneuvering is really over.
Here is a quick look at what I perceive to be the major changes.
First, and probably most significant, the Settlement is now very clear that it applies only to books registered for copyright in the US or published in the UK, Canada or Australia. This is an obvious attempt to avoid the objections and potential legal complications of including in the new Google products books subject to different copyright regimes and different author expectations; this comment on the Stanford Cyberlaw blog calls it “a policy-oriented maneuver intended to remove political pressure coming from abroad.” It is interesting to consider what this means for the actual Google Book search results. Will we continue to see snippets only of “foreign” books scanned by Google in the free database? If so, does that indicate that Google really is continuing to assert fair use in some cases? Or will these books disappear altogether? In any case, we know that under the new terms, such works from other countries will not be part of the institutional subscription database, and that fact will substantially lower the value of the product. Many of the works that will now be excluded are the very ones that research libraries have the most difficulty obtaining via interlibrary loan, so they are ones we were most counting on finding in the Google subscription database. We must expect that the pricing of that database will be adjusted to reflect a significant decrease in value offered.
The next important thing to note about the amended settlement is what it does not do. It does not address the concerns over reader privacy that have been expressed by many groups. The Electronic Frontier Foundation expresses its disappointment about this lack of a privacy plan here. In a conversation about this topic yesterday, a colleague of mine made the point that for Google to offer a privacy plan for this product would beg the question of privacy policies enterprise-wide, and that is a discussion Google, which depends on targeted advertising, does not want to have.
On the positive side, the amended settlement does clarify that rights holders can elect to allow free availability of their out-of-print but still in-copyright books, or to have them released subject to a Creative Commons license. This will be a significant benefit to academics who have retained or reclaimed copyright in their own books; unfortunately, that is a much smaller class of authors than it should be.
In many ways the heart of the settlement, its huge compulsory license to Google to commercialize orphan works and other unclaimed titles, has not changed much. There is a nice discussion of this aspect of the matter in this New York Times article. The basic change being made is some restriction on how the money generated by sales of these works can be spent, and the appointment of an independent “fiduciary” to the Books Rights Registry board to protect the interests of this immense unrepresented class The fundamental legal problem of an inappropriate use of the class action suit to create this license does not, and probably cannot, change. Without that license, there is little if any incentive for the parties to bargain at all.
The great unknown in all of this is whether the Books Rights registry will be able to license other parties to exploit orphan works in ways similar to the opportunity the settlement creates for Google. The provisions of the first settlement that had been known as the “most favored nation” clause, which said that the BRR could not give anyone else more favorable terms than Google got, has been removed — see the changes in sections 3.8(a) and 6.2(b) in the above-linked “redline” version of the settlement. So it is now the case that if the BRR can license orphan works at all, it can give favorable terms to other parties. But that is a very big “if.” As James Grimmelmann explains in this post, it is not at all clear that the BRR will have this authority until and unless Congress acts to resolve the orphan works dilemma legislatively. The NY Times article also seems to believe that this change depends on Congressional approval before the new independent fiduciary can assist with other orphan works projects. So Google likely still has its exclusive position, which could only be threatened by an unlikely combination of Congressional action and very deep pockets.
Overall, it is hard to argue with the title of this article from Library Journal which suggests that the amended settlement agreement makes only minor changes, and, as noted above, the most significant change probably decreases the overall utility of the settlement to academic libraries. The LJ article quotes a spokesman for the Open Book Alliance (which opposes the Google project) to the effect that the settlement is “sleight of hand.” Even allowing for the bias source of this quote, I think it reflects a truth, that Google and its partners (which is what they are, as opposed to opponents, at this point) wanted to change the agreement as little as was necessary to slip by the complaints raised by the Justice Department. As the NY Times article notes, that is really the only critic of the original deal that the settlement is designed to placate. Whether it has gone far enough to satisfy the DoJ is still an open question.
Architectural overreaching November 13, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, User Generated Content , 1 comment so farThis recent post on the TechDirt blog drew my attention (and that of may others) to an earlier note on the Freakonomics blog about an artist who pays an annual fee plus a percentage of his earnings to the University of Texas, Austin for the right to paint pictures of famous UT buildings like the Texas Tower and to use university emblems, even including the burnt orange color scheme.
On TechDirt, notice of this arrangement provoked a lot of angst. Many of the comments expressed outrage at the “fact” that ordinary citizens who have to pay a copyright fee for photographs they take of public buildings, because of the copyright protection afforded to architecture. That this is the state of the law is affirmed by several of those comments. In contrast, the blogger who wrote the TechDirt post in the first place asked a differently focused question –”why should the painter have to pay a fee at all?”
All of the venting in the comments on this blog post reminded me of an article I have been reading by Professor Jessica Litman, about which I shall say more in another post, in which she discusses the “independent threat to the health of the copyright system” that arises from the “widespread perception of the current copyright system as illegitimate.” The outraged comments point up this perception, even though they are largely misinformed. The important question to address in this particular situation is really that other one — why pay a fee at all? — since the answer should allay some of the outrage.
The basic response to the concern for photographers and artists is that the copyright law provides an explicit exception, a limitation on the scope of the right in architectural works, that makes most drawing, paintings and photos of buildings non-infringing. Section 120(a) of the Copyright Act (Title 17 of the US Code) says:
Pictorial Representations permitted — The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing or public display of pictures, paintings, photographs and other picotial representations of the work, if the building in which the work is embodied or is ordinarily visible from a public place.
So there is no way under copyright law for UT Austin or any other building owner to prevent, or extract fees, for paintings and photographs of such buildings, either because they were constructed before copyright protection extended to buildings (as opposed to just plans) or because of the exception quoted above.
Other types of protection that could allow the extraction of a fee from the artist would usually be trademark issues. University emblems will almost certainly be subject to such protection. The issue of the burnt orange color scheme, however, is much more doubtful, especially after the decision earlier this month involving a similar issue around an artist’s use of Alabama’s crimson colors in the U.S. District Court for Northern Alabama.
So to return to the question of why the artist should pay this fee, one possible answer, I think, is that he wants to. For paintings of buildings on the public property of the University, such a fee is probably neither required or enforceable, unless there are trademark elements included. But the artist could have entered into a voluntary licensing agreement with the University, perhaps out of a sense of loyalty or fairness. Or, of course, he may just be badly misinformed. Unfortunately, we frequently encounter situations in which someone asks about a license in a situation where none is required and ends up paying an unnecessary fee. Copyright owners (or putative owners) have little incentive to correct these misapprehensions.
Copyright should be an author’s right (part 2) November 9, 2009
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation , 1 comment so farAs promised in the last post, here is a very different look at the copyright incentive and the need to be thoughtful and cautious when we talk about copyright as an author’s right.
In the Autumn 2009 issue of The American Scholar, William J. Quirk writes an absolutely fascinating reflection on the finances of F. Scott Fitzgerald, whose tax returns and yearly financial ledgers were preserved and form the basis for Quirk’s essay called “Living on $500,000 a Year.”
The essay will be of interest to many people who are not obsessed with copyright issues, but one line struck my obsession very deeply. According to Quirk, when Fitzgerald died in 1940, “his estate was solvent but modest – around $35,000, mostly from an insurance policy. The tax appraisers considered the copyrights worthless.” Fitzgerald’s copyright, of course, were not worthless over time. As Quirk tells us elsewhere, the royalties from the sale of The Great Gatsby continue to generate about half a million dollars every year for the trust set up by Fitzgerald’s daughter Scottie to benefit her children.
This would seem to be one of the rare cases where the long term of copyright protection (Gatsby, published in 1925, will be protected until 2020) continues to benefit the descendants of the author. Usually, of course, copyrighted works have ceased to generate any income at all after only a few years, and those who inherit the rights generally neither know that they hold them nor get any benefit. Fitzgerald, however, arguably presents a strong, if unusual, case for long-lasting copyright protection. But when we look deeper, we see that the incentive that copyright is supposed to provide probably was overblown even in this case.
First, it is not very likely that the knowledge that his writings would make his grandchildren wealthy really played any part in Fitzgerald’s decision to write his novels. Indeed, Quirk’s essay tells the story of a man driven to work partly by the need to make money to keep a roof over his head from day to day (which is why he wrote short stories) and partly by the need to express himself (which is what he wrote his novels to do). The copyright incentive worked in the short term – it made it possible for Fitzgerald to sell his stories and novels for relatively healthy sums – but all of that incentive was immediate. The thought of riches two generations in the future was no part of what made Scott write.
Also, if the copyrights were considered worthless at his death, it is hard to see how Fitzgerald could have imagined profits for his grandchildren. Even in this case, the incentive argument for an average copyright term of 95 years rests on the absurd assumption that authors can predict future success in the face of present failure (or perhaps that they are even more deluded than the rest of us).
Even if the copyright incentive can work in some cases, of course, it must remain in the hands of the authors. If Fitzgerald had transferred his copyright to publishers, as is common practice today, there is little chance that his grandchildren would be enjoying all of that money, especially since there was a substantial period of time during which no one could anticipate the rebirth of interest in his books. Once again we come to the inescapable conclusion that the justification for strong copyright protection, which is the incentive it provides to authors, is only valid if copyright remains in the hands of those authors. To be effective at all, copyright must be, and remain, an author’s right.
Copyright should be an author’s right (part 1) November 4, 2009
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing , 1 comment so farIt seems like such a simple point. And the rhetoric of authors’ entitlement to the fruits of their labors has always been prominent in copyright debates, although it was usually on the lips of printers and publishers whose real concerns were much different. Two very different articles have once again led me to reflect on the importance of keeping authors (broadly defined as anyone who actually creates the intellectual property that is subject to copyright) at the forefront of copyright discussions and decisions.
First there are these stories about file-sharing of scholarly articles amongst medical researchers – one from the Chronicle of Higher Education here and the other from Techdirt here. The Chronicle is particularly scolding in its tone, and it evokes the misnomer “piracy” in its title. But aside from that commonplace rhetorical strategy, I want to emphasis two points raised by these reports.
First, the estimate of how much money journal publishers would lose by this practice, which the Chronicle sets at $1.4 million per year, should be taken with a ton of salt. As has become very well known in recent times, these estimates are usually built on false assumptions. The recording industry, for example, often assumes that each unauthorized song download costs the industry the full price of a CD. But there is no reason to believe that that is true; the consumer might be unwilling to pay for an entire CD to get one song and prefer to forgo the music altogether or pay to download a single track if the free option were not available. Likewise, an article shared over a peer-to-per network does not translate to a lost subscription or even, necessarily, to a lost per-article fee. We just do not know how much access would be worth to a consumer, and the copyright monopoly has prevented us from ever getting reliable market data.
Second, we should remember that there is a big difference between music file-sharing and the swapping of academic journal articles. In the latter case, academics are on both ends of the transaction; they are the authors as well as the consumers of the articles that are exchanged. If it were not for the academic practice of giving away copyright to publishers, this would be no big deal at all. Because of the lack of a financial incentive for academic authors, file-sharing of academic articles causes no economic lose to producers. What makes it newsworthy, and, from the academic point of view, necessary, is that copyright is held by entities other than the authors. By transferring copyright wholesale, instead of granting temporally-limited licenses to publish, academic authors have help create the access problem they are now trying to solve with file-sharing networks. That doing so is potentially an infringement of copyright is evidence of how harmful this practice has become to the fundamental mission of colleges and university.
And this gets me back to the point about copyright as an author’s right. For copyright to function, it must serve the needs of creators; if it does not, its fundamental purpose, which is to create incentives that encourage authorship and other forms of creative expression, is defeated. When academic authors give away their copyrights, and then have to resort to “illegal” file-sharing to get access to fundamental research, the copyright system has broken down. Only by reclaiming their copyright entitlement can academic solve this problem.
In a few days I will look at this problem of copyright as an author’s right from a very different perspective, based on an article about the finances of F. Scott Fitzgerald.
Through the copyright looking glass October 29, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Copyright in the Classroom , 1 comment so farIt is getting both monotonous and annoying to write repeatedly about badly reasoned court decisions in the area of copyright. Unfortunately, when they directly impact higher education, we cannot ignore these pernicious errors by our federal courts.
Earlier this month, a district court in Michigan handed down such a decision in yet another “course pack” case in that state. There was a twist this time, however, which the court chose to ignore. In this case, brought by Blackwell, Elsevier, Oxford, Sage and John Wiley publishers, the copy shop received photocopied course packs from professors, than handed them to individual students who made copies for their own use. Amazingly, the court found that this practice constituted direct infringement by the copy shop of the copyright holder’s exclusive rights of reproduction and distribution.
The problem, of course, is that no employee of the copy shop took any action that actually implicated either of these rights. The shop, owned by Excel Research Group, actually made no copies of any of the material over which the suit was brought. Judge Avern Cohn contemptuously dismisses this point, asserting that “the fact that the students push a button on a copier in the manner described is of no significance.” But such facts are exactly what are significant in legal reasoning, and the judge offers no principled reason for ignoring this fact other than his apparent desire to see the plaintiffs win their case.
Even more troubling was the treatment of the distribution right, which the court said was infringed by the shop handing out the course packs it was given. For this to be true, those copies would have to be unlawfully made, so that the doctrine of first sale did not apply to them. But Judge Cohn made no such finding; he simply noted that the packs were brought to the shop by professors who assigned the readings to their students. Again, the judge seems disinterested in either the details of the law or the facts before him; he simply appears anxious to arrive at the conclusion he thinks is desirable.
This startlingly bad reasoning serves a purpose for both the court and the publishers, of course. It is the only way, albeit one that requires ignoring both law and facts, to hold the copy shop liable without also saying that the copies made by faculty members and students were themselves infringing. The shop’s liability, if any, is clearly contributory to direct infringement by students and their instructors. But the court did not want to hold this way, and I am sure the publishers did not ask them to. To find direct infringement would be so obviously to attack the basic necessities of education, and would so clearly contravene the intention of Congress when they included “multiple copies for classroom use” in the list of examples of fair use, that it was too politically dangerous. And publishers would fear, no doubt, a decision that would suggest to their customers that their products truly are unusable. So rather than find direct infringement by teachers and students so as to hold the copy shop indirectly liable, the court rendered an incoherent decision in which Excel is held liable for directly infringing copyright without making a single copy.
There is some excellent analysis of this decision by Peter Hirtle here and by Shourin Sen here.
The result of this case is similar to what we have been decrying for some time now — a creeping expansion of the exclusive rights in copyright way beyond the boundaries Congress set for them. Here that expansion has been abeted by a judge who apparently sees his role as a kind of knight-errant, righting every wrong he perceives, regardless of the legal foundation.
