Monthly Archives: August 2013

Guild Disputes Google’s Fair Use Claim, Says Scanning Project Puts Authors At Risk

Google’s scanning of books does not meet the legal definition of “transformative,” creates potential harm to authors and other copyright holders, and is not protected as fair use under the law, the Authors Guild argues in a brief filed this week in New York federal court.

“The only thing ‘transformative’ about Google’s display of snippets of in-print books is that it transforms online browsers of book retailers to online users of Google’s search engine. Google ‘transforms’ Amazon customers into Google ad-clickers,” according to the brief.

Whether Google’s mass digitization of copyrighted material qualifies as fair use is the central issue now facing the court in the long-running legal dispute between the search engine giant and the Guild. A decision on fair use issues will influence whether the case should proceed as a class action lawsuit.

In a brief also filed this week, Google maintains that its scanning of copyrighted material is transformative, and actually helps authors by making their books easier to find and benefits the public by rendering information more accessible.

The Guild rejects the characterization of Google’s library-scanning project as anything other than a commercial enterprise intended to give it an advantage over other search engines and increase ad revenue–all while putting authors’ valuable property at risk.

The Guild’s brief points out the threat of piracy created by Google’s online distribution of book content. “One need only pick up a daily newspaper to appreciate how serious this security risk is. Stories of break-ins, hacking and theft appear almost daily.”

The current focus on fair use resulted from an appeals court decision in July. The judge vacated a class certification ruling in The Authors Guild vs. Google, saying issues of fair use had to be decided before determining whether authors should be treated as a class in the case. If Google’s fair use defense requires a book-by-book analysis, then this would weigh against class certification. If a fair use ruling can be made more broadly, then judicial economy is more likely to weigh on the side of class certification.

As the court weighs the legal issues, it’s already clear that Google’s unauthorized scanning of books creates a hazard for every author.

Court Finds Cyberlocker Hotfile Liable for Housing Stolen Content in First of Its Kind Decision

In a ruling cheered as a victory for intellectual property rights, a judge has found file-sharing service Hotfile liable on charges of copyright infringement for housing pirated movies and TV shows on its site.

While the written decision will remain sealed for two weeks, the Motion Picture Association of America touted the ruling in an email to media, Variety reports:

The summary judgment decision from U.S. District Court Judge Kathleen Williams in Florida was the first such ruling on whether cyberlockers can be held liable for the content stored on their site, the MPAA said. It also said that the company’s principal, Anton Titov, also was held liable for infringement.

The case dates back to 2011, when five U.S. movie studios sued Hotfile for hosting massive amounts of pirated material. Hotfile maintained that it was protected under safe harbor provisions of the Digital Millennium Copyright Act of 1998 because it took down pirated material after it was notified of it.

The MPAA has argued that the mass distribution of stolen work was central to Hotfile’s business model. The Los Angeles Times quotes former Sen. Christopher Dodd, Chairman and CEO of the MPAA:

“This decision sends a clear signal that businesses like Hotfile that are built on a foundation of stolen works will be held accountable for the damage they do both to the hardworking people in the creative industries and to a secure, legitimate Internet.”

Bulletin Board

This week’s batch of contests include a nonfiction contest, 2 poetry contests, and one quirky novel contest, with deadlines ranging from September 10-October 1.

The Hunger Mountain Creative Nonfiction Prize is currently seeking submissions for the best creative nonfiction piece. Essays should not exceed 10,000 words. The winner will receive $1,000 and publication in Hunger Mountain, the Vermont College Journal of Arts & Letters. Two honorable mentions will receive $100 each. Entry fee: $20. Deadline: September 10, 2013. For more information, please visit the website.

The Philip Levine Prize in Poetry is an annual book contest sponsored by the MFA Program at California State University, Fresno. Manuscript should be original poetry, not previously published in book form, and should be 48-100 pages, with no more than one poem per page. The winner will receive $2,000, book publication by Anhinga Press, and 25 copies of the book. Entry fee: $25. Deadline: September 30, 2013. For more information, please visit the website.

The Quirk Books “Looking for Love” Fiction Contest is now open for submissions. Entries should be love stories that are “fresh, fun, and strikingly unconventional.” The contest is open to any professional or nonprofessional writer, regardless of nationality, but the work must be written in English. All manuscripts must be original works of book length (at least 50,000 words). The winner will receive a $10,000 advance against royalties and publication by Quirk Books. There is no entry fee. Deadline: October 1, 2013. For more information, please visit the website.

The Red Hen Press Poetry Award is currently accepting submissions for original poems of any theme. The winner will receive $1,000 and publication in the Los Angeles Times Review. Entry fee: $20 for up to three poems, maximum 120 lines each. Deadline: September 30, 2013. For more information, please visit the website.

Court Won’t Let Apple Competitors Avoid Commissions On In-App Ebook Sales

Apple won’t have to let competitors restore in-app purchasing without a commission–a proposal the company said would have handed Amazon a big advantage in the ebook market–Judge Denise Cote indicated during a hearing late Tuesday afternoon.

According to media reports, Cote said the free ride for competitors wasn’t necessary to enable consumers to shop for the best price on ebooks. That was one of several proposals made by the Department of Justice that Cote indicated she would either reject or soften in setting an injunction against Apple for orchestrating a price-fixing conspiracy. She expects to file her formal decision next week.

Even before yesterday’s hearing, the DOJ had backed off a proposal to essentially ban agency pricing at Apple for five years. Instead, Apple will renegotiate its contracts with the five defendant publishers on a staggered schedule beginning in two years. Publishers Weekly reports:

“Apple had also asked that it be allowed to decide the order of publisher renegotiations, but that did not come up at the hearing, meaning that the order selected by the DOJ would likely remain in the final injunction: Hachette, after two years; HarperCollins at 30 months; S&S at 36 months; Penguin at 42 months; and Macmillan, the last to settle the DOJ charges, at 48 months.”

In other good news for Apple, Cote said the injunction will address ebooks only, not all types of content as the DOJ had requested. And instead of putting the company under the broad oversight of an external monitor for five years as the DOJ proposed (originally it was 10 years), she’ll appoint a monitor for two years, with the possibility of a one-year extension, to focus narrowly on ensuring Apple complies with antitrust rules.

Along Publishers Row

by Campbell Geeslin

It was a sad day for the book business when Oprah Winfrey’s book club ended.

Then, last week, the Today Show devoted about five minutes to a new Book Club. The New York Times said publishers “were giddy at the prospect of a potential successor to Oprah’s book club, which in its prime, consistently lifted books to bestseller status.”

The first selection was Samantha Shannon’s The Bone Season, a debut novel with promised sequels.  The author is a 21-year-old who just graduated from Oxford.  She started writing at 13.

The Bone Season is set in the year 2059 with a heroine who is able to enter other people’s minds. Film rights have already been sold.

The author insisted on TV that all this fuss had become dream-like.  “But I hoped for it,” she admitted.

The Today Show plans to feature a new book once a month.

Read More…

Ahead of Tomorrow’s Hearing, Apple Says Yes on Staggering New Publisher Contracts, No On External Monitor

Apple is agreeing to go along with the Department of Justice’s proposal that it renegotiate ebook-selling contracts with publisher defendants on a staggered basis, one every six months beginning two years after the judgment is final. But Apple wants to decide the order in which the contracts are written, not follow the schedule outlined by the DOJ.

Depending on the order, publisher defendants would have to wait anywhere from two to six years to renegotiate their contracts. In the meantime, they would be under a court-ordered ban on agency pricing.

That will be one of several issues considered tomorrow afternoon when Judge Denise Cote convenes a hearing to decide on an injunction against Apple for orchestrating an ebook price-fixing conspiracy. Ahead of the hearing, Cote told the DOJ and Apple to submit revised injunction proposals that narrow the chasm between their earlier filings.

But the two sides remain far apart on some key points, including a DOJ proposal that Apple allow other ebooksellers to conduct in-app purchasing with no commission due to Apple for a period of two years and that Apple pay for and submit to oversight by an external monitor.

Apple contends that it has “bolstered and improved its compliance programs,” and that the DOJ’s insistence on external oversight is intended not to prevent wrongdoing but to “inflict punishment.”

Mormon Authors Support Gay Colleague, Call for Quality Not Sexuality to Guide Publishing Decisions

In Utah, Mormon authors are coming to the defense of colleagues who say their publisher dropped them over a reference to a gay male partner in one of their bios, the Salt Lake City Tribune reported this weekend:

“As of Saturday morning, 41 Mormon authors had signed a letter asking publishers to base decisions on ‘content, quality, and commercial viability, not on any other factor.’”

Earlier this month, David Powers King and Michael Jensen, co-authors of the young adult fantasy novel, Woven, went public with their complaint against Cedar Fort Publishing’s Sweetwater Books.  They said the publisher refused to include the line, “He lives in Salt Lake City with his boyfriend and their four dogs,” in Jensen’s book jacket bio.  Jensen said he offered to change “boyfriend” to “partner.” When that didn’t satisfy the publisher, the deal was off.

Cedar Fort has not commented on the controversy. But in an email to Jensen that he made public, acquisitions editor Angie Workman expressed concern that the line would offend Mormon bookstore buyers, saying, “We will have much better sales if we can get into Deseret Book and Seagull.”

Apparently, Mormon authors aren’t so easily put off by references to homosexuality. Many of those who signed the letter supporting Jensen and King are or have been published by Cedar Fort, including Ryan Rapier, author of The Reluctant Blogger.

“Rapier also said he was rejected by another LDS publisher, Covenant Communications, for the stated reason that his book had a gay character. And his acquisitions editor at Cedar Fort, Angie Workman, was the same editor who raised a red flag over Jensen’s bio.

‘It’s very odd,’ Rapier said, ‘because they had chosen to take a risk with my book.’”

New Books by Members

This week’s batch of recent and upcoming releases by Authors Guild members include titles by Rick Bass, Sean Beaudoin, Anna Harwell Celenza, Melissa de la Cruz, Anna Dewdney, Amy Ehrlich, Samuel G. Freedman, Janice Gary, Timothy Glass, Judy Goldman, Beatrice Gormley, Elizabeth Greenspan, Jacqueline Jules, Kitty Kelley, Amy Grace Loyd, Cindy Neuschwander, Christopher Phillips, and Lauren Willig. Titles under the jump.

Read More…

Sources Say Salinger Left Stockpile of Manuscripts; Leonard’s Son May Finish Father’s Final Book

Big news in posthumous publishing this week: J.D. Salinger and Elmore Leonard may both have new books on the way.

By far the more surprising revelation relates to Salinger, who according to a forthcoming book and documentary, left a trove of manuscripts when he died in 2010 at the age of 91, the New York Times reports:

“Mr. Salinger instructed his estate to publish at least five additional books — some of them entirely new, some extending past work — in a sequence that he intended to begin as early as 2015.

The new books and stories were largely written before Mr. Salinger assigned his output to a trust in 2008, and would greatly expand the Salinger legacy.

One collection, to be called The Family Glass, would add five new stories to an assembly of previously published stories about the fictional Glass family, which figured in Mr. Salinger’s Franny and Zooey and elsewhere, according to the claims, which surfaced in interviews and previews of the documentary and book last week.”

Read More…

New DOJ Proposal Would Let Publishers Renegotiate With Apple on a Staggered Schedule

The Department of Justice today filed a revised proposed injunction against Apple that would still require that publisher defendants’ court-approved ebook contracts be thrown out, but would allow those publishers to begin renegotiating agreements sooner and on a staggered schedule.

The DOJ originally asked for a five-year ban on agency pricing. This new proposal calls for a two-year ban (from the date the judgment is final), after which publishers would take turns–one every six months–working out new deals with Apple. Hachette would go first, at 24 months after the agreement goes into effect; Macmillan would be last at 48 months.

The schedule, which reflects the order in which the publishers settled with the DOJ in the price-fixing case, are among the generally modest changes made in response to Judge Denise Cote’s comments at an Aug. 9 conference.

In its filing today, the DOJ said, “Plaintiffs agree with the Court that staggering the negotiations helps ensure that the Publisher Defendants will not be able to ‘negotiate collectively’ with Apple in order to effectuate contracts that will result in higher e-book prices.”

The DOJ reiterated its demand for an external monitor to ensure Apple adheres to antitrust rules. But it did revise its proposal to cut the length of the injunction from 10 years to five–with the option of extending it if necessary.

Apple is expected to file its revised proposal with the court today.

Cote has asked for the new proposals ahead of a court hearing scheduled for Aug. 27. Considering how far apart Apple and the DOJ were in their initial proposals, unless Apple’s new filing holds substantial changes, the two sides will share little common ground when they meet in court next week.