Copyright/Intellectual Property

Internet hyperlinks do not infringe copyright, EU court advised

7 April 2016

From Reuters:

A link to a website which publishes photos without authorisation of the author does not in itself constitute a copyright infringement, an adviser to Europe’s top court said on Thursday.

. . . .

While European Union rules say every act of communication of a copyrighted work has to be cleared by the copyright owner, it would be to the detriment of the Internet to make hyperlinks fall under these rules, the advocate general said.

The case arose in the Netherlands where the GeenStijl website had provided a link to an Australian site showing pictures of a Dutch celebrity taken by Playboy magazine. The Australian site did not have Playboy’s consent to do so.

“Hyperlinks which lead, even directly, to protected works are not ‘making them available’ to the public when they are already freely accessible on another website, and only serve to facilitate their discovery,” the opinion said.

Link to the rest at Reuters

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Chapman law professor looks to shift the thinking on copyright

6 April 2016

From The Orange County Register:

In 1928, Mickey Mouse was released to the world in the animated short “Steamboat Willie,” with a maximum 56-year copyright term before the iconic rodent would be released to the public domain.

Obviously, that last part didn’t happen. The copyright for Disney’s beloved mascot was given a new lease on his copyrighted life thanks to the Copyright Act of 1976, extending his protection to 2003. It happened again with the Sonny Bono Copyright Term Extension Act of 1998, which pushed the mouse’s protection up through 2023.

This trend of extension is known to some as the “Mickey Mouse Curve,” but the desire for such copyright extensions is hardly exclusive to Disney. Countless groups have lobbied for changes to copyright laws over the years, and there have been major transformations to show for it – not all of them helpful to the average creator, much less consumers.

. . . .

“Intellectual privilege” is a contrast to the term “intellectual property” usually used in reference to copyrighted material. Bell proposes that we might better understand copyright by thinking of it as a government-granted privilege, rather than tangible property that we own. To contrast the two, consider a basic idea of tangible property – your home. Copyrights are designed to expire at a certain point, but if you own your house, it won’t arbitrarily be taken away from you if you own it for a certain period of time. Fair use is also a consideration – copyright holders must make room for fair use, but you’d never be expected to let a stranger borrow a room in your home without your permission, citing “fair use.”

Bell’s book is published under the “Founder’s Copyright,” also known as copyright law as it existed in 1790. At that time, the copyright statute of the United States, about 1,308 words long, gave authors monopoly over their creations for 14 years with an option to renew for another 14, totaling 28 years.

Link to the rest at The Orange County Register and thanks to Jacqueline for the tip.

With due respect to Professor Bell, PG doesn’t recommend that his clients rely upon Founder’s Copyright to protect their work.

Harvard Sues Elmore, Gets Injunction Stopping Sales of

29 March 2016

From the Maine Antique Digest:

A lawsuit filed in federal court in New Mexico in June 2015 pits Harvard University, which has about a $37 billion endowment, against Steve Elmore, an antiques dealer who patched together $36,000 to self-publish a book. The suit may hinge on the definition of the word “manuscript.”

. . . .

In 2015 Elmore of Santa Fe, New Mexico, self-published a 217-page book, In Search of Nampeyo: The Early Years, 1875-1892. It was the culmination of decades of work and research. His publication was also the result of Elmore’s being rejected by the Peabody Museum Press, the publishing arm of the Peabody Museum of Archaeology and Ethnology at Harvard University.

In its suit, Harvard claims Elmore used photos he took in the Peabody Museum after signing an agreement that specified how he would use the photos and restricted their use. Elmore counters that Harvard released all its rights to the manuscript and wants to publish his decades of research without crediting him.

According to court documents, in August 2010 Elmore signed a contract with the Peabody Museum Press to write a manuscript on Nampeyo. The contract noted that the manuscript was subject to peer review and promised “potential publication,” and Elmore was paid $1500 to conduct research at the museum.

. . . .

“The first version of my manuscript was sent out for peer review, with two out of three reviewers recommending publication with revisions. The editor asked me to revise the book for the more scholarly ‘Peabody Museum Papers’ series. She asked me to explain my methodology and to link my work to art history, which I did. The new version of my manuscript, complete with my photos, took me another year and added 100 pages to my manuscript. In November 2013 I submitted this final version…and it was rejected with little comment in January 2014 by the Peabody Museum Press board of directors,” said Elmore.

The rejection letter’s language is the subject of dispute.

In a letter dated January 21, 2014, Joan Kathryn O’Donnell, director of the Peabody Museum Press, rejected Elmore’s manuscript because it was not a fit with the Peabody’s “editorial and publishing priorities and standards.” Elmore’s approach to the material, the letter said, was “inappropriate” for the Peabody’s scholarly publication series, and it quoted a board member who leveled a stark criticism. “We are an academic press, and this is not an academic book,” the unnamed board member said.

The rejection letter stated that the Peabody Museum Press was returning to Elmore “all rights in the manuscript…including all versions of the manuscript submitted to the Peabody Museum Press.” O’Donnell encouraged Elmore to publish elsewhere, even offering ten to 15 high-quality photographs and suggesting American Indian Art Magazine as a possible venue. “We tried very hard to make this project work,” O’Donnell lamented.

Elmore took O’Donnell’s advice but didn’t go the magazine route, and he didn’t accept the Peabody’s offer of photographs; he self-published the book through Spirit Bird Press, an entity he created.

. . . .

On December 10, 2015, a federal judge granted Harvard’s motion for an injunction, stopping Elmore from advertising, selling, and distributing his book. Elmore had already sold over 900 copies of the book that cost him $36,000 to produce, had a deal with Amazon.com in place, and had media kits ready to promote his book.Maine Antique Digest reviewed the book in the April 2015 issue.

Elmore is fighting back on two fronts: he’s filed a countersuit in federal court and launched legal action in a state court in New Mexico. His countersuit alleges breach of contract, breach of covenant of good faith and fair dealing, tortious interference with contractual relations, conversion, and more.

. . . .

In an e-mail to M.A.D., Elmore states his case. “Here’s my take on the Permission to Photo agreement. First, that agreement is Harvard’s attempt to strip photographers of their copyright of their work. The intention of the agreement is for Harvard to avoid U.S. Federal Copyright law and for Harvard to assert itself between the photographer and his own copyright, thus placing itself above the law. Right now, Harvard acknowledges I own the copyright to my photos, returned in the ‘all rights’ letter, yet insists I can’t publish them. What else does copyright mean? I’m not denying I signed the agreement, and I would not have published without their returning to me in writing from the Board ‘all rights’ etc. and ‘recommending’ I publish elsewhere.

. . . .

Harvard’s lawyers claim the injunction is necessary. “It is extremely important to the Museum to have control over and approval of any published photographs of its collections, because the quality of those photographs and the way they are presented reflect directly on the Museum, and either enhance or degrade its reputation.” Harvard claims that Elmore’s photographs are blurry, washed out, or inadequately lighted.

Link to the rest at Maine Antique Digest

The girl who stole my book: How Eilis O’Hanlon found out her crime novels were swiped by a stranger

29 March 2016

From Independent.ie:

Last October, I logged on to Twitter to find that I was now being followed by an account with the username @DonnaPatel. Something made me click on this particular link to see who it was. Call it intuition.

Donna Patel described herself as an “aspie” and “Potterhead”, and her most recent interaction had been with an Irish author calling herself “Joanne Clancy”.

Donna had been reading Clancy’s latest book, Tear Drop, a thriller about the hunt for a serial killer in Cork. At the time, it was the 111th biggest-selling e-book on Amazon’s UK division, and the number-one bestseller in Irish crime fiction, and Donna Patel had a simple question for the author: “Are you Ingrid Black?”

Next day, having received no reply to her message, Donna sent another tweet to the same account, saying: “Your book Tear Drop is The Dead by Ingrid Black.” Shortly afterwards, a third: “So you must be one of the authors behind Ingrid Black, or you are plagiarising.” Shortly afterwards, Joanne Clancy had deleted her account.

I found this exchange particularly interesting, and for a very good reason.

I am Ingrid Black.

One half of Ingrid Black, to be precise. She is a pseudonym, adopted more than 10 years ago for a joint crime-writing project between myself and my co-author and partner, Ian McConnell, and The Dead was our first book.

. . . .

By this time, however, the editor at Penguin who had championed the books had left for Australia, and, sadly, our new agent died. Feeling like we were back at square one, and not knowing how to start over, Ingrid Black slipped off the radar. In time, the books fell out of print and copyright reverted to us as the original authors.

At various points over the next few years, we toyed with the idea of releasing the Saxon stories as e-books. It seemed silly not to. They represented many years of work. Why not give them a new lease of life?

We set up a Twitter account in the name of Ingrid Black to prepare for publication. Our first tweet: “Now all I have to do is figure out how you put a book on Kindle, and I’ll be a millionaire by Christmas. That’s how it works, right?” Though, of course, it wasn’t done by that Christmas. Or the next one. Procrastination was our middle name.

We’d only sent six tweets and had less than 100 followers when, in October, we logged on to Twitter to see Donna Patel accuse Joanne Clancy of plagiarising The Dead.

. . . .

The first step was to find out if there was any truth to that allegation. Amazon’s summary of the book in question, which had been released in August 2015, certainly sounded familiar: “The serial killer known as Tear Drop vanished almost a decade ago, and nothing has been heard from him . . . until now. As death stalks the dark streets of Cork City, Detective Elizabeth Ireland must embark upon a frightening psychological journey to uncover the killer’s identity.”

Still, a blurb wasn’t conclusive proof; there are only a limited number of plots. So Ian and I downloaded a free sample and started reading Chapter One. The truth soon became apparent. Donna Patel was right.

Tear Drop wasn’t simply similar to The Dead.

It was The Dead. Everything about it was the same, from the plot to the protagonist’s sarcastic manner of speaking, to the jokes, to the very structure of the sentences and paragraphs.

. . . .

Once more, detail by detail, our book was being raided and filleted in front of my eyes. Tear Drop had been put together by someone who had The Dead open at the side of the keyboard as they typed.

I knew I had to read to the end. Gritting my teeth, I paid to download Tear Drop on to my Kindle. I didn’t have much doubt what I would find, but it was still a shock to find all my worst suspicions confirmed.

. . . .

Not only that, but it was doing well enough to be among the most downloaded books on Kindle at the time, and to be top of the charts in Ireland. It was also being widely, and enthusiastically, reviewed by fellow authors and crime-fiction fans, both on Amazon and elsewhere across the internet, many of whom were hailing it as Joanne Clancy’s best book to date.

“Personally, I really do not know how she came up with the superb storyline,” said one.

We did.

. . . .

Google searches discovered a few more facts about Joanne Clancy. There were a number of photographs purporting to be of her, which could be found online. She was listed on the professional networking site LinkedIn, where she was described as an “Amazon bestselling author and creative entrepreneur”. She had a Facebook page, which I bookmarked for later reference, but within 24 hours that, too, had been taken down.

. . . .

A few days after emailing the mysterious Joanne Clancy, I checked the email account we had set up for Iseult O’Malley and found that Clancy had replied to our fictional student: “Thanks a million for contacting me. My apologies for not replying sooner, but my website’s been having a few glitches, which have just been fixed.”

She agreed to an interview, but only by email, adding: “I look forward to hearing from you. Best wishes, Joanne.”

We began to feel almost bad for tricking her. This was one of the strangest aspects of the whole affair. What Joanne Clancy had done was devious, and yet, without knowing why she’d done it, it was hard to know how we felt about her. We kept changing our minds. What if she genuinely had no idea that she was doing anything wrong?

. . . .

Within hours of the publication of Insincere, we finally submitted a complaint to Amazon on the grounds of copyright infringement.

Link to the rest at Independent.ie and thanks to Craig for the tip.

Paul McCartney takes battle for Beatles songs to copyright office

27 March 2016

From The Washington Post:

Well into his eighth decade, Paul McCartney has a lot to be thankful for. Though he recently was denied entry to Tyga’s post-Grammys party, he is a living legend: one of two surviving Beatles and the co-writer of much of the band’s material. Yet, one prize remains beyond McCartney’s grasp. He lost his publishing rights to the Beatles’ catalogue decades ago and, despite years of wrangling that included a tiff with Michael Jackson, has been unable to get them back.

Now, McCartney has fired another fusillade in his battle to reclaim his music. As Billboard first reported, records show McCartney, taking advantage of a law that allows singers to reclaim publishing rights after 56 years, filed a “notice of termination” with the U.S. Copyright Office. The songs on the table include many Beatles masterworks, including “Hey Jude” and “Revolution” — and, for the record, “Ob-La-Di, Ob-La-Da,” one of John Lennon’s least-favorite Beatles songs.

Publishing rights are, more or less, the right to “exploit” a song — to, for example, license it to a film, TV show or video game. The vast majority of McCartney’s work with the Beatles was credited to “Lennon-McCartney” — but, as the BBC noted, the singers lost their publishing rights in the 1960s when ATV, a publishing company they created with the other Beatles, their manager and outside investors, was sold without their knowledge.

. . . .

“In order to reclaim publishing ownership of a song, a songwriter must file with the U.S. Copyright Office, terminating the publishing anywhere from 2 to 10 years before the 56 years elapse, in order to obtain ownership of that song’s publishing in a timely manner. (If the writer doesn’t put in a notice within that window, they have another five-year period to reclaim the copyrights but each day’s delay adds another day that the publisher owns the copyright.)”

Link to the rest at The Washington Post and thanks to Cora for the tip.

Here’s an article that explains the law in greater detail.

Commission seeks views on neighbouring rights and panorama exception in EU copyright

23 March 2016

From The European Commission – Digital Single Market:

Today the European Commission is launching an open consultation  as part of its work to update EU copyright rules for the digital age. It is seeking views on the role of publishers in the copyright value chain, including the possible extension to publishers of the neighbouring rights. Publishers do not currently benefit from neighbouring rights which are similar to copyright but do not reward an authors’ original creation (a work). They reward either the performance of a work (e.g. by a musician, a singer, an actor) or an organisational or financial effort (for example by a producer) which may also include a participation in the creative process. The Commission is also consulting on the panorama exception, which concerns the use made of images depicting buildings, sculptures and monuments located permanently in public places.

. . . .

An independent and pluralistic publishing sector is important for our society, cultural diversity and democratic participation. This part of the consultation therefore aims at gathering views as to the challenges (if any) faced by publishers of press and other print products in the digital environment as a result of the current copyright legal framework. It asks about the impact that a possible change in EU law to grant publishers a new neighbouring right would have on them and on the whole publishing value chain. The Commission also wants to gather views as to whether the need (or not) for intervention is different in the press as compared to other publishing sectors and which significance such an intervention would have for the future of the sector.

. . . .

Neighbouring rights are rights similar to copyright but that do not reward an authors’ original creation (a work). They reward either the performance of a work (e.g. by a musician, a singer, an actor) or an organisational or financial effort (for example by a producer) which may also include participation in the creative process. Current EU copyright law grants neighbouring rights to performers, film producers, record producers and broadcasting organisations. Publishers are not among the neighbouring right holders at European level.

Link to the rest at European Commission – Digital Single Market and thanks to SFR for the tip.

‘Star Trek’ Fans Want Paramount, CBS to Do Better Job Explaining Franchise to Court

24 February 2016

From The Hollywood Reporter:

Later this year, Star Trek will celebrate its 50th birthday. Before that happens, though, Paramount and CBS are being challenged to provide more ownership information about their franchise as well as discuss the nuances of the multiple television series and the many films that have resulted from Captain James T. Kirk’s original five-year mission aboard the U.S.S. Enterprise.

This is happening because Alec Peters and other Star Trek fans put in motion a studio-quality film titled Axanar with money raised from Kickstarter. In reaction, Paramount and CBS brought a lawsuit in December alleging that the producers of this crowdfunded movie were “using innumerable copyrighted elements of Star Trek, including its settings, characters, species, and themes.”

But according to a court filing on Monday by the defendants, that’s nowhere near enough to survive dismissal.

The first thing that the defendants request is more specificity about which of the “thousands” of copyrights relating to Star Trek episodes and films are being infringed — and how.

Taking issue with a complaint that lumps the entire Star Trek universe together, the dismissal motion points out that the original series featured a certain adventure aboard the U.S.S. Enterprise — one involving fictitious species such as the Vulcans and the Klingons — whereas The Next Generation had new captain (Jean-Luc Picard) and “revealed a universe with previously unexplored dimensions.”

The defendants also nod to new characters, sets and plots in Voyager and Deep Space Nine and the various films (including the upcoming series and film) to arrive at the argument that Paramount and CBS aren’t doing an adequate job recognizing the vast differences between the films and television episodes nor meeting minimum pleading standards. Producers of the crowdfunded film argue they shouldn’t be left guessing about what they’ve infringed nor should they be required to sift through each movie and TV episode to determine the claims against them.

“Plaintiffs do not allege that Defendants are engaged in wholesale copying of each Star Trek motion picture and television episode, or even that Defendants lift substantial material from each of Plaintiffs’ alleged works,” states the motion. “Plaintiffs’ conclusory allegations do little to put Defendants on adequate notice of the claims against them.”

. . . .

There are other cases, though, that stand for the proposition that since expression and not ideas are what’s copyrightable, plaintiffs shouldn’t be allowed to sue before a court can actually see the allegedly infringing work in question.

Link to the rest at The Hollywood Reporter and thanks to Chris for the tip.

PG notes that the owners of Hollywood franchises have never hesitated to stretch copyright and trademark laws to sometimes ridiculous dimensions.

This case raises an interesting issue about whether a given tv/movie/literary property can become so sprawling that the boundaries of protection become difficult or impossible to define with specificity. Absent use of specific Star Trek elements, what’s a Star Trek movie and what is just another space opera that uses tropes found in Star Trek as well as dozens of other science fiction books and movies that predate Star Trek?

The Nostalgia Critic asks, ‘Where’s the Fair Use?’

19 February 2016

From Chris Meadows via TeleRead:

The notion of “fair use” is a long-enshrined concept in copyright—effectively an “exception” to copyright law, it allows the use of portions of (or in some cases theentirety of) a copyrighted work without permission from its rights holder, for purposes such as review, criticism, commentary, or education. Many cases of fair use have to be litigated to be determined, while others are fairly obvious.

Fair use is an important issue across all different copyrighted media—books, music, video, and so on. It’s also been responsible for a remarkable number of copyright conflicts, most recently the Google Books affair currently seeking certiorari with the Supreme Court. Given how easy it is to copy, excerpt, and remix media via the Internet, you could say that the question of fair use is one of the fundamental questions of the Internet itself.

And where fair use meets the Digital Millennium Copyrights Act, we wind up with some major conflicts. The DMCA basically tells Internet services like blogs or YouTube that they can have “safe harbor”—that is, they can’t be held liable for copyright-infringing content a user uploads—as long as they act to take down infringing content as soon as they’re told about it. A service like YouTube, which gets some immense amount of content uploaded every day, can’t hope to vet it all manually, so it creates an automated process to let rights-holders detect and file claims on infringing content. And that’s where one of the big problems comes in.

Doug Walker, aka the Nostalgia Critic, has released a 20-minute video looking at the fair use rights problem on YouTube, and it is an especially important issue for people who make their living doing videos that make fair use of copyrighted content. The fundamental problem is that the automated copyright takedown system on YouTube is extremely biased in favor of content owners, who are allowed to make repeated copyright claims against channels (such as the Nostalgia Critic’s own, or those of several other people who get to present their cases in this video), divert any monetary revenue from their videos, and effectively stifle negative reviews of their products, without any negative repercussions if it turns out their claims are invalid. This system handicaps YouTube creators by limiting their ability to defend against such claims, potential even resulting in their channels being taken down if they have too many against them at once.

. . . .

Walker notes that his own channel has to deal with YouTube copyright complaints literally every other day. Walker makes review and criticism videos that usually feature clips from movies—a fair use by the very letter of the law—but he has nonetheless had to limit his use of clips in some of his videos simply because the studio responsible has already demonstrated its willingness to make life difficult for him if he doesn’t. But some review and criticism videos from others—including one channel that features no content from the movie at all, just video of people sitting in a car talking about it—have nonetheless had claims filed against them as well.

Link to the rest at TeleRead

Who’s Making Money from Pirated Audiobooks on YouTube?

19 February 2016

From Readers Entertainment:

Pirating books is a practice that has been around for years.  Someone copies a book and uploads it to a sharing site for others to download for free or for a cost.  It is a constant battle that authors and publishers face as a part of doing business.

Recently, I was searching YouTube for a book trailer, but what I found was an audiobook.  Someone had recorded the audiobook and put it up on YouTube to share.  So, I started looking into how many audiobooks were on YouTube and was surprised at how many I found there.  And though I can’t say it surprised me that people were pirating audiobooks, what did intrigue me was that the audiobook videos on YouTube had ads on them.

Why is this so intriguing?  Because of my extensive experience with YouTube videos, I knew that Google, who owns YouTube, has a policy in place for copyrighted material.  When material is discovered to be copyrighted, Google contacts the copyright owner and asks gives them a choice.

  1. To remove the material entirely.
  2. To allow ads against the material with revenue share. Meaning YouTube and the copyright owner make money off the ads.

If the copyright owner allows advertisements to appear on or next to the material they get a percentage of the revenue brought in by those ads.

I contacted Google/YouTube to ask them about the audiobooks I found and the ads on them.  I was contacted by Stephanie Shih of Google who send me what she called “Background information” on how things work regarding copyright infringement and how it is handled.

She confirmed their policy to give copyright holders the option to have the material deleted or monetized.  According to her information as of October 2014 YouTube has paid out of $1 Billion to rightsholders who have chosen to monetize claims since Content ID first launched in 2007.

Link to the rest at Readers Entertainment and thanks to Suzan for the tip.

Justice Scalia’s copyright legacy—and what his loss means for e-book cases

15 February 2016

From Chris Meadows via TeleRead:

Yesterday, the Supreme Court lost one of its most conservative judges at one of the most interesting possible times. There are plenty of articles going around about what this will mean for progressive cases in general, but I’d like to take a quick look at Scalia’s legacy through cases that have had an impact on e-books and related areas. After that, I’ll have some thoughts on what his departure could mean for the two big e-book-related cases currently seeking to be heard by the Supreme Court—USA v. Apple and Authors Guild v. Google.

Scalia was a user of some e-reading technology; in 2010, we noted that he owned an iPad. A quick review of some of the court’s major copyright cases shows that Scalia’s legacy is actually a mixed one, at least insofar as copyright, fair use, and e-books are concerned. In 1994, he joined with all the other justices in the Supreme Court’s last major fair use decision—Campbell v. Acuff-Rose Music, Inc., which concluded that commercial parodies can be fair use and enshrined the four-factor fair use test currently used in case law. That four-factor test is, of course, at the center of the current controversy over the Google Books decision which the Authors Guild hopes to convince the Supreme Court to hear. The case has also been a popular citation in discussions concerning fan fiction and other music parody matters.

In 2001’s New York Times Co. vs. Tasini, Scalia held with the majority, that freelance writers had copyright privileges over works of theirs that were subsequently included in a database without permission or compensation.

. . . .

In Kirtsaeng v. Wiley, another important first-sale doctrine case, Scalia was one of the dissenters who felt that exchange student Kirtsaeng should not have the right to reverse-import cheap foreign editions of college textbooks. And in American Broadcasting Cos. Inc. v. Aereo, Inc., in which Aereo was ruled to be infringing the copyright of the broadcasters whose content it rebroadcast, Scalia wrote the dissent, in which he compared Aereo to the VCR and felt that deciding if new technologies merited modification of the law should be Congress’s job rather than the Court.

It’s perhaps a little surprising, but it seems that Scalia was often on the same side as copyright reformers—helping to define fair use, insisting trademark not be permitted to trump the public domain, and feeling Aereo should have been permitted to continue.

Link to the rest at TeleRead

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