Last week in federal court, the stock-photo licensing company Getty Images filed a massive copyright infringement suit against Microsoft that could potentially shed light on the issues being litigated in our historic copyright case, Authors Guild v. Google. But unlike Google, which has never so much as interrupted the practices we dispute, Microsoft responded by at least temporarily removing the software at the heart of Getty’s complaint.
On Thursday, Getty accused Microsoft of infringement and asked the court to compel the tech company to stop offering its Bing Image Widget, which allows web publishers to display and arrange unlicensed images from Bing Image Search on their websites. Microsoft responded on Friday afternoon by removing the beta version of the offending image portal.
Getty’s entire business consists of the licensing of stock photos, both offline and on. If Microsoft is allowed to freely provide copyrighted images to web publishers, Getty contends, its Internet revenue streams will dry up, and the injury will be “incalculable.” “In effect,” Getty’s court filing states, Microsoft “has turned the entirety of the world’s online images into little more than a vast, unlicensed ‘clip art’ collection . . . all without seeking permission from the owners of copyrights in those images.”
It has been a lively week in the book world. Many of our members have been asking what we’re doing and how we feel about the ongoing dispute between Amazon and Hachette, in which Amazon has played a tough game of hardball, slowing or blocking the delivery of thousands of titles.
This weekend a group of some 900 authors published a two-page ad in the New York Times criticizing these tactics. The organizer, Douglas Preston, is a member of our board, and several of his fellow Council members, along with many members of the Authors Guild, signed the letter, which you can read here. It said: “As writers—most of us not published by Hachette—we feel strongly that no bookseller should block the sale of books or otherwise prevent or discourage customers from ordering or receiving the books they want. It is not right for Amazon to single out a group of authors, who are not involved in the dispute, for selective retaliation.” That’s something we all agree with. And it’s not right for Amazon to claim that they were forced to do this: no one made them do this.
The Authors Guild is committed to an inclusive, big-tent approach to its mission as the published writer’s advocate. The recent clash between Amazon and Hachette Book Group has called attention to the contrasting viewpoints of traditionally-published and self-published authors. During this dispute the Guild has spoken out against Amazon’s tactics—which needlessly imperil the livelihoods of authors who are not involved in the negotiations—while also challenging the major publishing houses to revisit the parsimonious stance they’ve taken on authors’ e-book royalties.
The Guild recognizes all authors’ rights to make a living from their books and to pursue the most suitable audience for them. It is a sign of the strength and diversity of our membership that two of our Council Members, Douglas Preston and CJ Lyons, have taken different public stands in defense of serious authors.
After 14 years, on June 10, 2014, we have received final approval from the U.S. Distinct Court, Southern District of New York, of our $18 million class-action settlement in In Re Literary Works in Electronic Databases Copyright Litigation. While there is a 30-day period to appeal any objections made at the final hearing, we still believe that Authors who filed valid claims in accordance with the initial settlement in 2005 will receive payment sometime this year. There is nothing any of the claimants need to do at this point except deposit your checks when you receive them.
The Authors Guild, the American Society of Journalists and Authors, the National Writers Union, and 21 freelance writers brought the class-action suit in 2000 on behalf of thousands of freelancers whose stories had appeared in online databases—including those run by The New York Times, Dow Jones, and Knight-Ridder—without their consent. In 2005, a negotiated settlement that pegged award amounts to whether an article had been registered with the U.S. Copyright Office was challenged by 10 authors who had not registered their works. Their challenge eventually made it to the Supreme Court, which decided in favor of the class action litigants in 2010, clearing the way for the revised settlement.
The amounts that will be paid to individual writers depend on a number of factors: the original fee paid for the article, the year it was published, whether the writer registered the copyright and whether he or she agrees to future use of the article in the databases. Defendants have agreed to pay writers up to $1,500 per work for registered stories. Writers who failed to register their copyrights will receive up to $68.40 per article. The revised settlement sets a minimum award level of $10 million in payments to writers, the same floor that was set in the 2005 settlement.
More information regarding exactly when payment will soon be available at www.copyrightclassaction.com.
We received yesterday’s Second Circuit decision in Authors Guild v. HathiTrust with mixed feelings. The decision was not a total victory for either side. While the Court, over our objections, allowed HathiTrust to maintain its database of digitized books in light of the present security protections, the Court was clear that any breach of that security leaves HathiTrust at risk of future litigation. We also were pleased that the Court refused to issue the blanket approval HathiTrust requested to use the database to replace books in its holdings that had reached the end of their physical life and vacated the District Court decision on that point. Overall, we also were heartened that the Court, while approving two very limited uses of the database—for word search and display to the disabled—emphasized that the decision did not extend to the display of the text of the books to all HathiTrust users, or even authorize universal display of snippets.
The Authors Guild remains committed to the notion that the digital revolution cannot come at the cost of authors’ rights to preserve writing as a livelihood. Our pursuit of this claim led directly to HathiTrust’s abandonment of the Orphan Works Project, which would have posed a major threat to authors’ rights by allowing these libraries to fully display their digital copies of in-copyright works with no more basis than the bare claim that they couldn’t find the rights-holders. The related case against Google will come before the Court next. We continue to believe that it is fundamentally unfair for Google to make use of the entire text of copyrighted books for its own commercial purposes without any compensation to authors.
In the flurry of media stories over the last few weeks covering the dispute between Amazon and Hachette Book Group, one perspective has largely been overlooked: that of the author. Two Guild members recently took to the airwaves to fix that.
Authors Guild President Roxana Robinson was a guest Thursday morning on NPR’s On Point, reminding listeners that while Amazon may be the bully in this particular dispute, Hachette and the rest of the Big Five don’t exactly have clean records when it comes to e-book revenue, which seems to be the object of the two firms’ standoff.
Just as Amazon is pressuring Hachette now, Hachette and other major trade publishers, Robinson said, regularly put the squeeze on their authors when it comes to e-book royalty rates. As we’ve maintained for years, an e-book royalty of 25% of net receipts is a windfall to the publisher and a major step back for authors. To begin with, it’s not reflective of publishing’s traditional “joint venture” arrangement, in which authors and publishers effectively split the net proceeds of book sales. What’s more, it incentivizes publishers to favor e-books, from which they profit at a higher rate than from hardcover sales.
Robinson also touched on the potential antitrust violations of Amazon’s market dominance, particularly its predatory pricing schemes. The New York Times covered similar ground in an editorial on Tuesday. The Times’ editorial board wrote that “when a company dominates the sale of certain products as Amazon does with books, it has the power to distort the market for its own benefit and possibly in violation of antitrust laws.”
Robinson wasn’t the only member of the Authors Guild family in the news. Council member Sherman Alexie made a Wednesday evening appearance on The Colbert Report, standing up for the authors affected by the corporate standoff and even suggesting a boycott of Amazon.
When two publishing giants fight, Colbert asked Alexie, who do you root for? Alexie responded without hesitation: “You root for the authors.” Colbert and Alexie, both Hachette authors, expressed frustration not only at what Amazon’s tactics have done to their own royalties, but also at how they could affect new authors.
The authors also took the time to remind readers that Amazon’s not the only bookstore on the block. When Colbert asked Alexie what we can do to fight back, the novelist responded with a solution we can all bear in mind: “Well, number one, you don’t shop there . . . for anything.”
The American Booksellers Association hasn’t passed up this opportunity to convert readers’ ill-will towards Amazon into more support for their members. The organization released a logo this week sporting the following message: “Thanks, Amazon, the indies will take it from here. Independent bookstores sell books from all publishers. Always.”
We’re hopeful that independent bookstores, at least, can find a way to turn this strife to their advantage.
On Monday the Supreme Court issued a one-line order declining to hear the appeal of New York Times journalist James Risen. A lower court had ordered the reporter to comply with a subpoena requiring him to reveal a confidential source.
The case began after Risen’s 2006 book, State of War, reported on a botched CIA operation that may have given valuable nuclear technology to Iran. During a Justice Department investigation of the operation, Risen was issued a subpoena to testify about a confidential source. He refused.
In a remarkable move, Amazon released a statement yesterday defending its slow-walking of Hachette Book Group titles. The normally tight-lipped corporation broke its silence amid a barrage of press—including Authors Guild President Roxana Robinson’s appearance on the Bloomberg TV program “Market Makers”—concerning its ploy to pressure Hachette into accepting unfavorable contract terms.
Blackmail works best. That seems to be Amazon’s negotiating strategy, at least. The online retailer is now refusing orders on some Hachette Book Group titles in an attempt to extort better contract terms from the publisher.
We reported earlier this week on Amazon’s “slow walking” of Hachette Book Group titles. Amazon was putting pressure on the smallest of the Big Five publishers as the two firms try to negotiate a new contract.
Amazon and Hachette Book Group are still battling it out as Amazon seeks to squeeze the publisher’s profit margins in their new contract. Amazon continues to deploy a tactic we’ve called “slow walking,” purposefully putting what appears to be hundreds of Hachette books on two to three week back order to remind Hachette of Amazon’s market power. (See “Amazon Slow-walks Books by Gladwell, Colbert, Others in Spat with Hachette” for more.)