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.)
Amazon v Stephen Colbert? Amazon Slow-walks Books by Gladwell, Colbert, Others in Spat with Hachette
In an apparent dispute over sales terms with big five publisher Hachette Book Group, Amazon is slowing delivery of select Hachette titles, The New York Times reports. Among the affected titles are James Patterson’s “Alex Cross, Run” and Stephen Colbert’s “America Again: Re-becoming the Greatness We Never Weren’t,” according to the Times. Amazon has used similar tactics in the past, including removing “buy buttons” from nearly every Macmillan title in 2010 over disputed e-book sales terms.
Amazon is in some cases delaying sales by format. All English language trade paperbacks by Malcolm Gladwell, for example, ship in two to three weeks, while Gladwell’s hardcovers ship immediately.
The availability of the titles Amazon delays appears to shift from time to time. “Alex Cross, Run” is listed as in stock this morning, while Amazon is still slow-walking “America Again,” which is available in two to three weeks in hardcover.
Self-interest protects certain formats: all titles appear to be available in Kindle editions.
As of March 4, MacAdam/Cage is out of business. After undergoing bankruptcy proceedings, the former publisher closed down shop and, by mid-March, officially reverted all print and subsidiary rights to its authors. However, under a 2009 license affecting 180 titles, the U.K.-based publisher MP Publishing is still exploiting MacAdam/Cage e-books through e-tailers in the U.S. and abroad. The legal status of this license agreement is questionable; many affected authors assert that MacAdam Cage was never granted electronic rights. The list of titles can be found here.
The Authors Guild will assist any MacAdam/Cage author who wants to challenge MP’s claim to his or her titles. To discuss the matter with our legal team, send an e-mail to email@example.com, attaching a copy of your MacAdam/Cage agreement. Now that MacAdam/Cage is defunct, we will hold MP and its owner Mark Pearce directly accountable for e-book titles that have been exploited without authorization or compensation.
For details of the MacAdam/Cage bankruptcy, please see the following report from the Guild’s legal department.
Authors Malcolm Gladwell, J.M. Coetzee, Michael Pollan, Margaret Atwood, Peter Carey Support Lawsuit Against Google’s Theft of Books Through Digitization
New York, NY- Prize-winning authors, international rights organizations, and legal experts Monday joined the Authors Guild in fighting what they call Google’s dangerous and unprecedented violation of copyright law. They filed eight stinging friend-of-the-court briefs in support of the Guild’s appeal in Authors Guild v. Google, agreeing that Judge Denny Chin’s decision in the case should be overturned. The briefs can be viewed in their entirety at the end of this blog post.
“Google’s ambitions respected no borders,” said Authors Guild president Roxana Robinson. “Millions of copyrighted books by authors from every major country were swept in to Google’s scheme. As the new filings demonstrate, not just authors but also photographers, visual artists, songwriters, and publishers around the world find it particularly galling that a wealthy American company would try to find a way to use their creations for free.”
Authors from Australia, Canada, and South Africa joined one brief, including Margaret Atwood, Thomas Keneally, J.M. Coetzee, Yann Martell, Peter Carey and Michael Frayn. In a separate filing, an array of international rights organizations warned that if this massive expansion of “fair use” is allowed to stand it turns the United States into a rogue nation, in violation of international norms of copyright.
Copyright experts, including Marybeth Peters, Former U.S. Copyright Register, Jon Baumgarten, Former General Counsel, U.S. Copyright Office, and professor Raymond T. Nimmer, filed briefs as well.
American authors Malcolm Gladwell, Michael Pollan, Karen Russell, Ursula K. Le Guin, Ron Larson, Taylor Branch, Tracy Chevalier, Lawrence Hill, Diane McWhorter, Robert Christopherson and Tracy Kidder submitted a brief that highlights how Google has left little room for authors and publishers to develop partnerships and licensing opportunities of their own.
And fifteen U.S. groups, representing textbook authors, songwriters, visual artists, illustrators and photographers, filed briefs of their own. These organizations collectively represent thousands upon thousands of individuals dependent on copyright for their livelihoods. Their conclusion sums up the strong case against Google: “One group cannot simply be allowed to take from creators and give works to the public for free with impunity. This undermines the very purpose of copyright law and ultimately of fair use.”
The Authors Guild first sued Google in 2005, citing “massive copyright infringement” in developing its Google Book Search database. The Guild filed its brief on April 11, 2014 with the U.S. Court of Appeals for the Second Circuit Court in Manhattan.
Jan Constantine, General Counsel of the Authors Guild, is testifying before the House Judiciary Committee this afternoon on mass digitization of books and so-called orphan works. Those topics, of course, are at the heart of two Guild lawsuits, Authors Guild v. Google and Authors Guild v. HathiTrust. An advance copy of Jan’s written testimony is available below.
Authors Guild House Judiciary Testimony (Text)
Here are three highlights:
Out of print books only
1. We’re proposing that Congress empower the creation of a collective licensing organization (something like ASCAP or BMI) to deal with both mass digitization and “orphan” books. Such an organization would pave the way for a true national digital library, but it would have to be limited in scope, just as ASCAP is.
Here are the key components:
A. Authors get paid for the uses, naturally.
B. Licenses would be non-compulsory. Authors get to say no.
C. Licenses would cover out-of-print books only. No disrupting commercial markets.
D. Display uses only. No ebooks or print books.
E. There would be a tribunal to go to if the licensing agency and an institution couldn’t agree on the fee.
Such agencies are already in place around the world, licensing limited photocopy uses of books. They all license orphan books as part of the package.
There are millions of out-of-print copyrighted books. Making these books available would have an enormous societal benefit and bring our nation’s great research libraries to computer screens at our smallest colleges and most remote rural libraries.
Guild says 1963 copyright hearing “eerily prescient” of Google’s book scanning project
2. A Copyright Office hearing on February 20, 1963, is eerily prescient about what was to come. (Irwin Karp, legendary and curmudgeonly counsel for the Authors Guild and Authors League was there.) It’s as if everyone saw Google and its mass digitization of books under the banner of fair use coming. Not only that, they addressed it in legislation – it was an early hearing for what became the 1976 Copyright Act.
UMI found “Orphan Row” authors decades ago
3. Fifty years ago, people knew how to find authors and other rights holders of books, they didn’t just declare out-of-print books to be “orphans”. UMI, Bell & Howell, and 3M raced to see which company could pre-clear the most books for the new print-on-demand technology. UMI boasted it would “go to Timbuktu” to clear rights.
And, get this: Remember “Orphan Row,” our term for the list of 100-plus books that HathiTrust was preparing to release in ebook form? UMI cleared the rights to seven of them decades ago, long before the Internet made searching for rights holders easy. It’s amazing what you can find when you really want to find it.
Here are some “snippets” from that 1963 hearing, followed by the list of Orphan Row books UMI had cleared rights for by the 1970s.
KAMINSTEIN (Copyright Register): I was going to hold this for later on, but I have a telegram from Reed Lawlor, who says, “I suggest you consider adding the following section 6: ‘In any event reproduction of a copyrighted work in machine readable form for use in the analysis, citation and reasonable quotation of the work by means of an information storage and retrieval system shall be considered a fair use.’.” We were going to hold this for the discussion of fair use, but I certainly have no objection to opening up the subject here. Did you want to comment on it?
When Scott Turow stopped by CBS This Morning last week to promote his new book, Identical, co-anchor Charlie Rose turned the discussion to Turow’s “beef with Amazon,” while Norah O’Donnell brought up his April New York Times piece on “The Slow Death of the American Author.”
Turow said Amazon’s below-cost ebook pricing, “destroys physical bookstores and drives the reading public into the ebook, which of course Amazon dominates. They’re a great competitor and I don’t mind fair operation of the market. I don’t like unfair tactics.”
Arguing that the Google Library Project violates authors’ rights to control the copying and distribution of their books, destroys a potential market for the works, and puts the material at greater risk of theft, the Authors Guild urges Judge Denny Chin to rule against Google in a court brief filed ahead of next Monday’s hearing on summary judgment.
While Google maintains that its mass unauthorized copying of books is “transformative,” and therefore protected as fair use, the Guild argues that merely digitizing a work doesn’t meet the legal standard of transformative.
The brief also says that a program as all-encompassing as the Library Project “eviscerates” any possibility that license holders could form a collective market for the works.
On the issue of security, the brief outlines the risks of Google making digitized books available without any accountability for keeping it safe. What’s worse, if such programs are considered fair use, “others will engage in their own unauthorized book digitization programs, putting more books within the reach of digital thieves,” the brief says.
The Guild rejects a number of Google’s justifications for the project, including the contention that it’s actually helping authors by increasing exposure to their books (the “we were only trying to help” defense) and that the program is “only indirectly commercial.” In fact, according to the brief, “the primary motivation for Google’s exploitation of the authors’ books is for Google to gain a competitive advantage in the online search marketplace” by increasing traffic and therefore ad revenue.
Recognizing that the “fair use doctrine is not designed to address the enormity of Google’s infringement,” the Guild argues that it’s up to Congress, not the courts, to revise copyright law to deal with technological advances. Earlier this year, the House Judiciary Committee said it would begin a review of U.S. copyright law. In the meantime, the brief says, “Google’s unilateral and profit-driven effort to upset the balance between copyright owners and users must be rejected.”