Copyright/Intellectual Property

Torching the Modern-Day Library of Alexandria

27 April 2017

From The Atlantic:

You were going to get one-click access to the full text of nearly every book that’s ever been published. Books still in print you’d have to pay for, but everything else—a collection slated to grow larger than the holdings at the Library of Congress, Harvard, the University of Michigan, at any of the great national libraries of Europe—would have been available for free at terminals that were going to be placed in every local library that wanted one.

At the terminal you were going to be able to search tens of millions of books and read every page of any book you found. You’d be able to highlight passages and make annotations and share them; for the first time, you’d be able to pinpoint an idea somewhere inside the vastness of the printed record, and send somebody straight to it with a link. Books would become as instantly available, searchable, copy-pasteable—as alive in the digital world—as web pages.

It was to be the realization of a long-held dream. “The universal library has been talked about for millennia,” Richard Ovenden, the head of Oxford’s Bodleian Libraries, has said. “It was possible to think in the Renaissance that you might be able to amass the whole of published knowledge in a single room or a single institution.” In the spring of 2011, it seemed we’d amassed it in a terminal small enough to fit on a desk.

“This is a watershed event and can serve as a catalyst for the reinvention of education, research, and intellectual life,” one eager observer wrote at the time.On March 22 of that year, however, the legal agreement that would have unlocked a century’s worth of books and peppered the country with access terminals to a universal library was rejected under Rule 23(e)(2) of the Federal Rules of Civil Procedure by the U.S. District Court for the Southern District of New York.When the library at Alexandria burned it was said to be an “international catastrophe.” When the most significant humanities project of our time was dismantled in court, the scholars, archivists, and librarians who’d had a hand in its undoing breathed a sigh of relief, for they believed, at the time, that they had narrowly averted disaster.

. . . .

Google’s secret effort to scan every book in the world, codenamed “Project Ocean,” began in earnest in 2002 when Larry Page and Marissa Mayer sat down in the office together with a 300-page book and a metronome. Page wanted to know how long it would take to scan more than a hundred-million books, so he started with one that was lying around. Using the metronome to keep a steady pace, he and Mayer paged through the book cover-to-cover. It took them 40 minutes.

Page had always wanted to digitize books. Way back in 1996, the student project that eventually became Google—a “crawler” that would ingest documents and rank them for relevance against a user’s query—was actually conceived as part of an effort “to develop the enabling technologies for a single, integrated and universal digital library.” The idea was that in the future, once all books were digitized, you’d be able to map the citations among them, see which books got cited the most, and use that data to give better search results to library patrons. But books still lived mostly on paper. Page and his research partner, Sergey Brin, developed their popularity-contest-by-citation idea using pages from the World Wide Web.
By 2002, it seemed to Page like the time might be ripe to come back to books. With that 40-minute number in mind, he approached the University of Michigan, his alma mater and a world leader in book scanning, to find out what the state of the art in mass digitization looked like. Michigan told Page that at the current pace, digitizing their entire collection—7 million volumes—was going to take about a thousand years. Page, who’d by now given the problem some thought, replied that he thought Google could do it in six.. . . .He offered the library a deal: You let us borrow all your books, he said, and we’ll scan them for you. You’ll end up with a digital copy of every volume in your collection, and Google will end up with access to one of the great untapped troves of data left in the world. Brin put Google’s lust for library books this way: “You have thousands of years of human knowledge, and probably the highest-quality knowledge is captured in books.” What if you could feed all the knowledge that’s locked up on paper to a search engine?

By 2004, Google had started scanning. In just over a decade, after making deals with Michigan, Harvard, Stanford, Oxford, the New York Public Library, and dozens of other library systems, the company, outpacing Page’s prediction, had scanned about 25 million books. It cost them an estimated $400 million. It was a feat not just of technology but of logistics.

. . . .

The stations—which didn’t so much scan as photograph books—had been custom-built by Google from the sheet metal up. Each one could digitize books at a rate of 1,000 pages per hour. The book would lie in a specially designed motorized cradle that would adjust to the spine, locking it in place. Above, there was an array of lights and at least $1,000 worth of optics, including four cameras, two pointed at each half of the book, and a range-finding LIDAR that overlaid a three-dimensional laser grid on the book’s surface to capture the curvature of the paper. The human operator would turn pages by hand—no machine could be as quick and gentle—and fire the cameras by pressing a foot pedal, as though playing at a strange piano.

What made the system so efficient is that it left so much of the work to software. Rather than make sure that each page was aligned perfectly, and flattened, before taking a photo, which was a major source of delays in traditional book-scanning systems, cruder images of curved pages were fed to de-warping algorithms, which used the LIDAR data along with some clever mathematics to artificially bend the text back into straight lines.

. . . .

In August 2010, Google put out a blog post announcing that there were 129,864,880 books in the world. The company said they were going to scan them all.

Of course, it didn’t quite turn out that way. This particular moonshot fell about a hundred-million books short of the moon. What happened was complicated but how it started was simple: Google did that thing where you ask for forgiveness rather than permission, and forgiveness was not forthcoming. Upon hearing that Google was taking millions of books out of libraries, scanning them, and returning them as if nothing had happened, authors and publishers filed suit against the company, alleging, as the authors put it simply in their initial complaint, “massive copyright infringement.”

. . . .

As Tim Wu pointed out in a 2003 law review article, what usually becomes of these battles—what happened with piano rolls, with records, with radio, and with cable—isn’t that copyright holders squash the new technology. Instead, they cut a deal and start making money from it. Often this takes the form of a “compulsory license” in which, for example, musicians are required to license their work to the piano-roll maker, but in exchange, the piano-roll maker has to pay a fixed fee, say two cents per song, for every roll they produce. Musicians get a new stream of income, and the public gets to hear their favorite songs on the player piano. “History has shown that time and market forces often provide equilibrium in balancing interests,” Wu writes.

But even if everyone typically ends up ahead, each new cycle starts with rightsholders fearful they’re being displaced by the new technology. When the VCR came out, film executives lashed out. “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone,” Jack Valenti, then the president of the MPAA, testified before Congress. The major studios sued Sony, arguing that with the VCR, the company was trying to build an entire business on intellectual property theft. But Sony Corp. of America v. Universal City Studios, Inc. became famous for its holding that as long as a copying device was capable of “substantial noninfringing uses”—like someone watching home movies—its makers couldn’t be held liable for copyright infringement.

The Sony case forced the movie industry to accept the existence of VCRs. Not long after, they began to see the device as an opportunity. “The VCR turned out to be one of the most lucrative inventions—for movie producers as well as hardware manufacturers—since movie projectors,” one commentator put it in 2000.
It only took a couple of years for the authors and publishers who sued Google to realize that there was enough middle ground to make everyone happy. This was especially true when you focused on the back catalog, on out-of-print works, instead of books still on store shelves. Once you made that distinction, it was possible to see the whole project in a different light. Maybe Google wasn’t plundering anyone’s work. Maybe they were giving it a new life. Google Books could turn out to be for out-of-print books what the VCR had been for movies out of the theater.If that was true, you wouldn’t actually want to stop Google from scanning out-of-print books—you’d want to encourage it. In fact, you’d want them to go beyond just showing snippets to actually selling those books as digital downloads.. . . .

Those who had been at the table crafting the agreement had expected some resistance, but not the “parade of horribles,” as Sarnoff described it, that they eventually saw. The objections came in many flavors, but they all started with the sense that the settlement was handing to Google, and Google alone, an awesome power. “Did we want the greatest library that would ever exist to be in the hands of one giant corporation, which could really charge almost anything it wanted for access to it?”, Robert Darnton, then president of Harvard’s library, has said.

Darnton had initially been supportive of Google’s scanning project, but the settlement made him wary. The scenario he and many others feared was that the same thing that had happened to the academic journal market would happen to the Google Books database. The price would be fair at first, but once libraries and universities became dependent on the subscription, the price would rise and rise until it began to rival the usurious rates that journals were charging, where for instance by 2011 a yearly subscription to the Journal of Comparative Neurology could cost as much as $25,910.Although academics and library enthusiasts like Darnton were thrilled by the prospect of opening up out-of-print books, they saw the settlement as a kind of deal with the devil. Yes, it would create the greatest library there’s ever been—but at the expense of creating perhaps the largest bookstore, too, run by what they saw as a powerful monopolist. In their view, there had to be a better way to unlock all those books. “Indeed, most elements of the GBS settlement would seem to be in the public interest, except for the fact that the settlement restricts the benefits of the deal to Google,” the Berkeley law professor Pamela Samuelson wrote.

Link to the rest at The Atlantic and thanks to Valerie for the tip.

Andy Warhol Estate Sues Photog Over Prince Photo Copyright Fight

16 April 2017
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From PetaPixel:

The estate of legendary artist Andy Warhol has filed a lawsuit against New York City photographer Lynn Goldsmith. The reason? Goldsmith believes Warhol violated her copyright by turning one of her portraits of Prince into a painting.

The New York Daily News reports that the lawsuit is a “preemptive strike” against the photographer before she gets a chance to file a copyright infringement lawsuit first.

The photo at the center of the battle is a publicity portrait of the late musician Prince, captured by Goldsmith back in 1981. Three years after the photo was made, Warhol decided to create his “Prince” series of paintings and “drew inspiration” from the picture to create his works.

Goldsmith is accusing the Warhol painting of being an infringement of her photo, but the Warhol estate is arguing that the paintings were transformative enough to be considered new works.

“Although Warhol often used photographs taken by others as inspiration for his portraits, Warhol’s works were entirely new creations,” writes Warhol estate lawyer Luke Nikas in the lawsuit. “As would be plain to any reasonable observer, each portrait in Warhol’s Prince Series fundamentally transformed the visual aesthetic and meaning of the Prince Publicity Photograph.”

. . . .

“It is a crime that so many ‘artists’ can get away with taking photographers’ images and painting on them or doing whatever to them without asking permission of the ‘artist’ who created the image in the first place,” the photographer wrote.

Link to the rest at PetaPixel

In Music, DRM Is Back While Ownership Is Going Away

13 April 2017

From Copyright and Technology:

The RIAA’s annual revenue figures for recorded music are a goldmine of information about the state, health, and direction of the music industry. The 2016 figures that the RIAA published at the end of March generated a few common headlines in the trade and business press:

  • Recorded music revenue in the United States is finally growing again, up 11% over last year after five years of flat-to-slight-decline;
  • Subscription streaming revenue growth accelerated, more than doubling since 2015.  It is now the majority source (51%) of recorded music revenue, even counting CDs and other physical products;
  • The vinyl renaissance is hitting its limits, as growth has slowed and vinyl looks headed for a new peak of 6% of total industry revenue.

But beneath those headlines lie a few more developments which indicate fundamental tipping points in music’s digital transformation.

First, and most relevant to us here, is something I’ve predicted but the RIAA numbers make it official: encrypted digital music accounts for more revenue than DRM-free music (digital or analog). In other words — if you define DRM as any encrypted means of content delivery — DRM for music is back.

. . . .

[O]nly 30% of digital music comes from DRM-free sources while 70% is encrypted in some way.

. . . .

The only modes of digital music delivery that don’t use encryption today are CDs, downloads, and many simulcast streams of AM/FM radio signals. CDs have fallen so far from their 1999 peak that they now account for only 15% of total revenue. Download revenue is also in free-fall and now accounts for 24% of total revenue.

. . . .

An even more important indication of change is the shift in consumer preference from “ownership” to “access” models. This won’t come as a shock to those who have been watching the music industry evolve for a while, but it’s reality now: people have found that when music is available everywhere on any device, it’s not so important to own it anymore.

Link to the rest at Copyright and Technology

Australia’s copyright reform could bring millions of books and other reads to the blind

4 April 2017

From The Conversation:

Proposed changes to Australia’s copyright law should make it easier for people to create and distribute versions of copyrighted works that are accessible to people with disabilities.

The Copyright Amendment (Disability Access and other Measures) Bill was introduced to Parliament on Wednesday.

If passed, it would enable people with disabilities to access and enjoy books and other material in formats they can use, such as braille, large print or DAISY audio.

The Australian Human Rights Commission has long been calling for action to end the “world book famine” – only 5% of books produced in Australia are available in accessible formats. This means that people with vision impairment and other reading disabilities are excluded from a massive proportion of the world’s knowledge and culture.

Under the current law, educational institutions and other organisations can produce accessible copies of books, but the system is slow and expensive. Only a small number of popular books are available, and technical books that people need for work are often out of reach.

Technology should make accessibility much easier, but publishers have been slow to enable assistive technologies.

. . . .

Amazon’s Kindle, for example, used to allow text-to-speech to help blind people read books, but Amazon gave in to publishers’ fears and allowed them to disable the feature. Apple’s electronic books are much better, but there are still major gaps.

Link to the rest at The Conversation

Stephen King Sued Over The Dark Tower

3 April 2017

From TMZ:

Stephen King stole the idea for his main man in “The Dark Tower” series from a famous comic book character also known as a gunslinger … according to a new suit.

The creator of “The Rook” comics claims King’s protagonist, Roland Deschain, is based on his main character, Restin Dane. He says Deschain has striking similarities to Dane other than just their initials — both are “time-traveling, monster-fighting, quasi-immortal, romantic adventure heroes.”

“The Rook” creator also points out King’s Deschain dresses like a cowboy despite not being from the Old West — just like Restin Dane — and the towers in both books look the same.

. . . .

According to the docs … the Restin Dane character was in more than 5 million comic magazines from 1977-1983 and King admits he read those stories. The first book in King’s ‘Dark Tower’ series was released in 1982.

 

Link to the rest at TMZ and thanks to Michael for the tip.

PG says TMZ doesn’t do a very good job of covering legal matters.

 

How this Texas woman changed the lives of the blind and impaired with creation of audiobook studio

28 March 2017
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From The Houston Chronicle:

Carolyn Randall is enthralled by words. She’s been so as long as her 90-year-old memory can recall.

Decades before she’d create the Texas State Library’s audiobook recording studio, a project that has helped thousands of blind and impaired people, Randall was a bookworm growing up in Champaign, Illinois. She read historical fiction and scripts by Fyodor Dostoevsky.

“I was a slow reader,” said Randall, now a Houston resident. “I paid attention to each word.”

. . . .

Shortly after, Randall heard that the University of Houston needed help to record audiobooks. She began volunteering weekly.

In the late 1960s, Robert Levy founded what was then Taping for the Blind, a Houston audiobook and radio program now called Sight into Sound. The news made its way to Randall, who, upon hearing it, remembered an uncle who had once said he needed audiobooks while recovering from cataract surgery. She had an idea.

“I thought, ‘I can do this in an even better way than at the University of Houston,'” Randall said. “That’s how I really got started.”

She stayed with the program for about 10 years before moving with Howard to Austin.

Living in the capitol meant an opportunity to volunteer at the state library.

Randall couldn’t pass it up. She began with small tasks, “filing whatever they needed,” she said. But she quickly cultivated relationships. She also noticed there was no state-sponsored studio to record audiobooks. The library’s Talking Book Program had for decades used an audiobooks archive provided by the National Library Service for the Blind and Physically Handicapped. But no state resource existed for audiobooks and authors specific to Texas.

Randall lobbied for funding to outfit a room with recording booths. Volunteers were recruited, and the studio was born in 1978, with Randall as its director.

. . . .

Almost 40 years later, more than 5,000 titles (books, magazines, etc.) have been recorded at the studio, which in total has a collection of more than 10,000 titles in multiple languages. The studio has about 100 volunteers, and it services roughly 18,000 blind and impaired people statewide. It also offers some books in braille.

Link to the rest at The Houston Chronicle

Of course, PG was reminded of 17 U.S. Code § 121, which provides, in part:

Notwithstanding the provisions of section 106, it is not an infringement of copyright for an authorized entity to reproduce or to distribute copies or phonorecords of a previously published, nondramatic literary work if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities.

. . . .

“authorized entity” means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities;

Stop the Presses!

17 February 2017

From author and attorney Mindy Klasky:

REBEL AUTHOR TAKES ON MIGHTY EMPIRE

(A press release for our times)

A little more than a week ago, in a city not far away, author Mindy Klasky was putting the finishing touches on her new novel, then called REBEL RISING. Klasky had worked on REBEL for the past four years, adapting an earlier work that had failed to find its audience, allegedly because certain large store book buyers did not care for stories about children who rebel against the religion of their parents.

Due for release on February 28, with cover designed, ads purchased, and everything set to go, Klasky prepared to press the button for pre-orders to go live. But then, an ominous shadow darkened the launch pad:  Disney announced a new Star Wars novel titled — you guessed it — REBEL RISING.

Link to the rest at Mindy Klasky

Here’s a link to Mindy Klasky’s books. If you like an author’s post, you can show your appreciation by checking out their books.

The Metropolitan Museum of Art Makes 375,000 Images of Fine Art Available Under a Creative Commons License: Download, Use & Remix

15 February 2017

From Open Culture:

What do you need to make art? Why, art, of course: the works that have come before provide inspiration, establish a tradition to follow and expand, and now, in our digital age, even provide the very materials to work with. The Metropolitan Museum of Art has assured us that we should feel free to “use, remix, and share” their latest batch of 375,000 digitized artworks of a variety of forms and from a variety of eras in any which way we like. In partnership with Creative Commons, they’ve released them all under the latter’s CC0, or “no rights reserved” license, which places them “as completely as possible in the public domain, so that others may freely build upon, enhance and reuse the works for any purposes without restriction under copyright or database law.”

Link to the rest at Open Culture

PG says this appears to make these specific works of art (not the entire collection of the Met) available for use on book covers.

Here’s a link to Introducing Open Access at The Met for more information.

And here’s In the Library by Edwin Austin Abbey, released under the Met’s CC0 license:


and a photo taken by Alfred Stieglitz in Paris in 1908

and a Migrant Pea Picker’s Makeshift Home, Nipomo, California, taken by Dorothea Lange in 1936

Logan Composer Is Getting Sued Over Allegedly Stolen Lucifer Theme Song

13 February 2017

From i09:

Warner Bros. has a hell of a problem on its hands. A pair of musicians are suing the company and Logan composer Marco E. Beltrami for using the theme song they helped create for the show without giving them money or credit.

 Robert and Aron Marderosian, known collectively as The Mardos and Heavy Young Heathens, filed the suit in California last week. It claims that Beltrami, who did the Academy Award-winning scores for 3:10 to Yuma and The Hurt Locker, reached out to the brothers for help in creating a theme song for the show. According to the lawsuit, Beltrami “was not able to capture the essence of what Warner Bros. and NS Pictures were looking for,” and that Warner Bros. had rejected all of Beltrami’s submissions.

The Mardos agreed to create a theme song for the show in exchange for co-writer credit, as well as retention of all publishing rights if the show went to series. However, according to the lawsuit, Beltrami passed off the composition as his own and didn’t tell Warner Bros. about his agreement with the brothers after they chose the six-second excerpt that was ultimately used in Lucifer.

Link to the rest at i09

Working for free (but working for yourself)

7 February 2017

From Seth Godin:

Freelancers, writers, designers, photographers–there’s always an opportunity to work for free.

There are countless websites and causes and clients that will happily take your work in exchange for exposure.

And in some settings, this makes perfect sense. You might be making a contribution to a cause you care about.

. . . .

But just because you’re working for free doesn’t mean you should give away all your upsides.

Consider the major publishing platforms that are happy to host your work, but you need to sign away your copyright.

. . . .

Now, more than ever, you have the power to say “no” to that.

Because they can’t publish you better than you can publish yourself.

It doesn’t matter if these are their standard clauses. They might be standard for them, but they don’t have to be standard for you and for your career.

Link to the rest at Seth Godin

PG says “This is our standard contract” may be the oldest con known to humankind to persuade someone (including an author) to sign a terrible contract.

The “standard contract”, “standard clause” or “standard language” designation is designed to make the author think that everyone agrees to those terms. Who is an author, particularly a new author, to dare to ask for something different than all the established authors accept?

This is baloney. Publishing contracts are changed all the time.

Publishing contracts of a certain era were formatted so the changes in “standard” language were shown in a different font or otherwise highlighted. PG has seen such contracts that included dozens of changes for authors who were not best-sellers. Many agents have a set of standard changes they always make to the “standard contract” from a particular publisher.

Most publishers no longer use stone tablets for their contracts. Microsoft Word can change a “standard contract” to a fairer contract in an eyeblink.

PG says, “Ask and ye shall receive.” And if you don’t receive, you can walk away and get a better deal from someone else. The Amazon or Draft2Digital or Smashwords, etc., options are always open.

Another negotiating tip – Always have an alternative planned before you begin a business negotiation. Negotiation theorists call this a BATNA – Best Alternative To a Negotiated Agreement. Part of the psychology of the “standard contract” ploy is the assumption that the author is mentally and emotionally committed to having a book published by a particular publisher, working with a famous editor, seeing big stacks of books in Barnes & Noble, etc.

Prior to sending the contract to the author, many publishers encourage an author, particularly a first-time author, to think everything will be sunshine and lollipops. The author has told all of her relatives and friends that Big Time Publishing has accepted her book, imagined what it will be like to fly on a private jet to Paris for a book signing, what she will say during her Nobel Prize acceptance speech, etc., etc., etc.

These sorts of things put immense pressure on an author to not walk away from a bad deal. PG suggests that an author may want to defer any announcement until after a fair contract is negotiated and signed. However, he knows this can be a very difficult thing to do, so perhaps a cautionary element should be added to any pre-contract announcements, “But I’m going to make sure the contract and all the details are right before this is official.”

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