Authors’ Orphan Works Reply: The Libraries and Google Have No Right to “Roll the Dice with the World’s Literary Property”
Authors’ groups from Australia, Canada, Norway, Sweden, the UK and the US (including the Authors Guild and the Authors League Fund) and eleven individual authors filed their reply brief in the HathiTrust mass book digitization and orphan works case late on Friday. It’s the final brief to be filed in the appeal of Judge Harold Baer’s ruling last October that questions regarding HathiTrust’s “orphan works” program were moot and that HathiTrust’s other uses of millions of copyrighted books were protected by copyright law’s fair use doctrine.
A summary of the litigation is here. Here’s a six-sentence version for the time pressed: Several university libraries worked with Google to digitize millions of copyright-protected library books. The universities then placed these digital books in an online repository known as HathiTrust and permitted Google to keep a copy of each of the digital books it created. Although HathiTrust does not generally make those ebooks available, in the summer of 2011 it announced an “orphan works” program that would have allowed the downloading of books that the universities deemed “orphans” (books for which the authors cannot be found after diligent search). Authors and authors’ groups sued to stop the program and quickly discovered that many of the so-called orphans were readily findable. HathiTrust suspended the program, promising to restart it after further review. Last October, Judge Baer ruled as above; the plaintiffs appealed the ruling.
Week two in the Apple fix-pricing trial began Monday with HarperCollins CEO Brian Murray and Macmillan CEO John Sargent testifying that they weren’t forced by Apple to revise their terms with Amazon–as the Justice Department’s claims–but simply engaged in tough negotiations with both e-tailers to get the best possible deal.
While all five major publishers originally named in the suit have settled with the DOJ, the government’s case hinges largely on their actions in 2010, when Apple allegedly acted as “ringmaster” compelling them to adopt the agency model.
Monday’s witnesses also included a Google executive who finished testimony that began last week, when the Apple’s lawyer aggressively grilled him about his contention that publishers had told him Apple forced them to adopt a model that would result in higher prices. CNET reported:
Apple started to pick away at the Department of Justice’s claim that the tech giant conspired to inflate e-book prices by repeatedly and rapidly firing questions at a key Google witness.
The tactic paid off for lead Apple attorney Orin Snyder, who began to wear down on Thomas Turvey, director of strategic relationships for Google. Turvey appeared increasingly frazzled and frustrated as the afternoon went on.
Asked to name a publisher who told him about Apple’s demands, Turvey could not.
By highlighting journalists’ need to protect confidential sources and other information, the Justice Department’s recent seizing of AP phone records without notice may finally lead to passage of a federal press shield law. The Authors Guild, which has long backed the enactment of such a law, is part of a coalition of media organizations calling on Congress to use this as an opportunity to strengthen the First Amendment protection of press freedom. It’s going to be an uphill battle, says legislation monitor GovTrack.us.
Still, the moment seems right. Amid the uproar over the DOJ’s actions, President Obama has asked New York Democrat Sen. Chuck Schumer (D-NY) to revive shield law legislation that was shelved in 2009. Last week Schumer said he would reintroduce the bill, The Free Flow of Information Act, and Texas Republican Rep. Ted Poe introduced shield law legislation in the House. Here’s the text of the bill from THOMAS (Library of Congress) and an analysis of the bill’s sections by the Newspaper Guild.*
The U.S. government is calling out Ukraine for its shoddy enforcement of intellectual property rights laws, putting the Eastern European nation literally in a class by itself among trading partners who fail to protect copyright holders.
A new report from the Office of the U.S. Trade Representative designates Ukraine a Priority Foreign Country (PFC), a benign-sounding label reserved for the worst intellectual property rights offenders. It’s been more than seven years since a U.S. trading partner had PFC status. That country? Ukraine, a PFC from 2001 to 2005, when it improved its practices enough to (temporarily) lose the designation.
Update: Pirate Bay’s moved yet again! TorrentFreak reports today that when Swedish prosecutors moved to seize Pirate Bay’s Swedish (.SE) and Icelandic (.IS) domains, Pirate Bay swiftly migrated its virtual home to Sint Maarten, proprietor of the .SX top-level domain. Sint Maarten, a constituent country of the Netherlands, comprises the southern half of the Caribbean island Saint Martin.
The Pirate Party, an Internet libertarian group, has been on the political map for a while, particularly in Europe. It has gained seats in state legislatures (in Germany) and, through a coalition, a senate seat in a national legislature (in the Czech Republic). It now claims its first national, directly elected representative, in the Icelandic parliament.
It’s been an especially big month for the piracy minded in Iceland. Last week, Iceland became the virtual home of file-sharing promoter Pirate Bay. Pirate Bay, no longer welcome in its home country of Sweden, had briefly moved its site from a Swedish domain (.SE) to Greenland-based domain (.GL). Greenland’s domain name host, however, quickly booted Pirate Bay, so it moved again, to Iceland (.IS). It seems to have found a more hospitable home there, at least for the moment. TorrentFreak reported last week that Iceland’s top-level domain name registrar had no plans to kick out Pirate Bay.
What does the Pirate Party’s parliamentary victory mean? Leo Mirani at Quartz, a business news site, thinks it means the Pirate Party will need to grow up:
…the Pirate Party will need to refine its ideology and find a balance between the ideal vision of online freedom it espouses and the unsavoury activities and people it can easily find itself associated with. That is a tricky line to walk, especially since it can’t pick its supporters and members.