Does Influential Report Get Copyright’s Goals Right?

Does copyright exist to encourage creative expression, full stop, or does it also seek to motivate the commercialization of creative works?

On Thursday, the National Research Council of the national science, engineering and medical academies* issued a 102-page report calling for research to provide empirical data that better inform copyright policy decisions in the digital age. The National Research Council is influential in Washington; its report, Copyright in the Digital Era: Building Evidence for Policy, is likely to be widely cited. Terry Hart of Copyhype, however, says that the NRC report mishandles a fundamental issue — the purpose of copyright — and cites a 2012 Supreme Court decision to back him up.

The NRC report’s characterization of the tone of the copyright debate (“strident”) is indisputable, so is its statement that the debate is “between those who believe the digital revolution is progressively undermining the copyright protection essential to encourage the funding, creation, and distribution of new works and those who believe that enhancements to copyright, are inhibiting technological innovation and free expression.”

The NRC then makes the case for more data:

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Posted in Advocacy, Authorship, Copyright

Harper Lee Sues Agent She Says Tricked Her

Harper Lee is suing her former agent, Sam Pinkus, to recover royalties from To Kill a Mockingbird dating back to 2007, when he allegedly tricked her into signing over copyright  to the classic novel as she was in an assisted living facility recovering from a stroke.

“Pinkus knew that Harper Lee was an elderly woman with physical infirmities that made it difficult for her to read and see,” Lee’s lawyer Gloria Phares says in a complaint filed in federal court last week, according to Bloomberg and other news sources. The 87-year-old author regained rights to the novel in 2012, but Pinkus has continued to collect royalties.

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Posted in Authorship, Copyright, Royalties

Gamesmanship: Virtual Pirates Befuddle Real Ones

File this one under behavioral science experiments. Also, file it under brilliant promotional stunts.

On Sunday Australian game developer Greenheart Games, run by brothers Patrick and Daniel Klug, released its first product, “Game Dev Tycoon.” It’s a computer game in which players pretend to be game developers of the 1980s, starting their businesses from their garages.

Just as Greenheart Games opened its virtual doors for business, Patrick Klug purposely released an unlocked version of Game Dev Tycoon on the “number one torrent sharing site” (Pirate Bay, which beat out KickassTorrents for the honors, according to TorrentFreak.). Here’s what Patrick posted:

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Posted in Copyright

Pirate Party Wins First Direct National Elections, in Iceland

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.

We’ll see.

Posted in Advocacy, Copyright

Are Copyright Laws “Still Working in the Digital Age”? House Judiciary Chair Pledges Comprehensive Review

Bob Goodlatte, R-Va., chair of the House Judiciary Committee, announced last Wednesday that the committee “will hold a comprehensive series of hearings on U.S. copyright law in the months ahead. The goal of these hearings will be to determine whether the laws are still working in the digital age.”

Goodlatte made his remarks at the World Intellectual Property Day celebration at the Library of Congress, and invited interested parties to submit their views to the Judiciary Committee. His full statement is here.

Goodlatte noted that Maria Pallante, Register of Copyrights, had called for such a comprehensive review leading to “the next great copyright act” in testimony on March 20th. In her prepared statement, Pallante said that “authors do not have effective protections, good faith businesses do not have clear roadmaps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated.”

In her March 20th testimony, Pallante made clear her view that “the issues of authors are intertwined with the interests of the public.” Authors, Pallante said,

are not a counterweight to the public interest but instead are at the very center of the equation. In the words of the Supreme Court, “[t]he immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” Congress has a duty to keep authors in its mind’s eye, including songwriters, book authors, filmmakers, photographers, and visual artists. A law that does not provide for authors would be illogical — hardly a copyright law at all.

Pallante pointed out, however, that the last major overhaul of U.S. copyright law, the 1976 Copyright Act, took two decades to negotiate. We expect to be hearing much more about this in the months ahead.

Posted in Advocacy, Authorship, Copyright

Fair Use Ruling: Artist Sufficiently Transformed 25 of 30 Photos

On Thursday, the Second Circuit Court of Appeals overturned a trial court’s decision, ruling that an artist’s uses of 25 copyrighted photographs were sufficiently transformative to be protected by copyright’s fair use defense. The court was uncertain, however, whether the artist’s uses of five other photographs should be considered adequately transformative to trigger the defense. The court’s opinion, Cariou v. Prince, is available here.

The artist, Richard Prince, had copied the work of photographer Patrick Cariou, who had taken the photographs over a six-year period in Jamaica. Cariou had  published the collection in a book, “Yes Rasta,” in 2000.

Prince used 30 photos from Cariou’s book in creating “Canal Zone,” a series of large-scale works exhibited at galleries in St. Barth’s and New York City in 2007 and 2008. Prince’s modifications to the black-and-white photos varied, but included enlarging the images, adding acrylic paint, pasting on new elements, tinting them, and using them in collages. According to the court, some of Prince’s works exhibited at the galleries almost entirely obscure Cariou’s original photographs. In others, Cariou’s original images are still readily apparent.

The court found that 25 of Prince’s works “manifest an entirely different aesthetic from Cariou’s photographs”:

Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative. Cariou’s black-and-white photographs were printed in a 9 1/2″ x 12″ book. Prince has created collages on canvas that incorporate color, feature distorted human and other forms and settings, and measure between ten and nearly a hundred times the size of the photographs.

The court cautioned, however, that not all “cosmetic changes to the photographs would necessarily constitute fair use. A secondary work may modify the original without being transformative.” As an example, the court cited its 1998 ruling that a book providing synopses of Seinfeld television episodes infringed the original shows’ copyrights, since the book simply repackaged the episodes’ content in a new form.

The appellate court was uncertain whether Prince’s modifications were merely cosmetic for five of the thirty works.  The court remanded the case to the trial court to determine whether those “relatively minimal alterations” were sufficiently transformative to be deemed fair uses of Cariou’s photographs.

Posted in Advocacy, Copyright

Ebooks, International Part 2: In Russia, Amazon Readies Kindle. Can Harvard/Goldman Alum Make It Work?

Earlier, we reported on ebook developments in Brazil. Now, on to Russia.

Ingrid Lunden of TechCrunch reports that Amazon appears to be getting ready open ebook operations in Russia. Although Amazon hasn’t confirmed the report, on April 19 Forbes posted news at its Russian website that Amazon had hired Arkady Vitrouk to head its Russian office. Vitrouk is the former CEO of ABC-Atticus, a Russian publishing conglomerate owned by Alexander Mamut, which Forbes says is one of Russia’s 50 wealthiest people.

Lunden of TechCrunch confirmed Forbes’ report through Vitrouk’s LinkedIn profile, which lists him as director of Kindle Content for Russia. (It also shows that he attended Harvard Business School and worked at Goldman Sachs before joining Atticus Publishing Group and now Amazon.) Lunden dug further, finding that Amazon is seeking to hire two content acquisition managers for Kindle Russia, and a senior manager for Kindle content pricing in Russia.

Ebook pricing may prove to be particularly tricky in Russia, where digital piracy is rampant. One commenter on Forbes’ Russian site seems to think so, asking what sense it made for Amazon to enter the Russian market, “if the books on the Internet [I] will not be buying one.” (Translated by Google.)

The Russian Federation has been on the U.S. Trade Representative’s Priority Watch List for years. (Brazil, which we discussed in an earlier post, lags Russia as a haven for piracy in our government’s estimation. The USTR places it on its Watch List — without priority.) Perhaps things in Russia will soon improve, however. On December 21st, the USTR announced that it had reached an agreement with Russia on an Intellectual Property Rights Action Plan. The IPR Action Plan calls for Russia to take various steps to combat online piracy.

Then again, maybe not. The new IPR Action Plan was announced shortly after the 6-year anniversary of a US-Russia bilateral agreement (referred to here, p. 23) on the protection and enforcement of intellectual property rights. Russia’s been on the US Trade Representative’s Priority Watch List ever since.

Arkady Vitrouk has his work cut out for him.

Posted in Advocacy, Authorship, Copyright, E-Books

Scott Turow on Piracy, Lowball E-Royalties & Literary Culture

In a New York Times Op-Ed today, Scott Turow takes on the threat posed by book piracy, e-lending and traditional publishers’ lockstep, 25% ebook royalties to the health of our literary culture. Check it out: The Slow Death of the American Author

Posted in Advocacy, Authorship, Copyright, E-Books

“Orphan Works” Unresolved in HathiTrust Ruling

Wednesday evening, US District Court Judge Harold Baer ruled that the mass book digitization program conducted by five major universities in conjunction with Google is a fair use under US copyright law. Under that program, Google has converted millions of copyright-protected library books into machine-readable files, duplicating and distributing the digitized books to university libraries. The universities pooled the digitized books into an online database organized by the University of Michigan known as HathiTrust.

We disagree with nearly every aspect of the court’s ruling. We’re especially disappointed that the court refused to address the universities’ “orphan works” program, which defendants have repeatedly promised to revive. A year ago, the University of Michigan and other defendants were poised to release their first wave of copyright-protected, digitized books to hundreds of thousands of students and faculty members in several states. The universities had deemed the authors of these books to be unfindable.

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Posted in Advocacy, Copyright

Publishers Drop Mass Book Digitization Suit Against Google. Authors’ Class-Action Continues.

A group of large U.S. publishers agreed to drop their lawsuit against Google over its mass-digitization of millions of copyright-protected books. In a press release issued this morning, the Association of American Publishers and Google said that the terms of the settlement are confidential and won’t need court approval. The parties did lift the covers off the deal a bit, saying publishers “can choose to make available or choose to remove their books and journals digitized by Google.” The statement does not say whether Google is compensating publishers for its unauthorized uses of the books, nor does it address whether Google will continue scanning books without permission. The press release acknowledges that the settlement doesn’t affect the authors’ class-action lawsuit against Google.

“The publishers’ private settlement, whatever its terms, does not resolve the authors’ copyright infringement claims against Google,” Authors Guild executive director Paul Aiken said in a statement. “Google continues to profit from its use of millions of copyright-protected books without regard to authors’ rights, and our class-action lawsuit on behalf of U.S. authors continues.”

The press release follows.

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Posted in Advocacy, Copyright, E-Books