Another Legal Victory Keeps Sherlock Holmes In The Public Domain

5 August 2014

From io9:

Last year, a federal judge ruled that Sherlock Holmes and Dr. Watson are no longer covered by U.S. copyright law. But, the Conan Doyle Estate continued its litigation — and today, another federal judge issued a blistering statement, saying that the estate might also be violating anti-trust laws.

“The Case of the Greedy Estate” is a story in three parts. First, in 2013, editor Leslie Klinger filed a complaint against the Conan Doyle Estate regarding an anthology of new Sherlock Holmes stories. The estate had threatened to block sales of the anthology unless it received a licensing fee for the use of elements of Sir Arthur Conan Doyle’s original stories.

. . . .

Then, in Part II of our saga, 7th Circuit Judge Richard Posner rejected an appeal made by the estate, concluding in June 2014 that, “The spectre of perpetual, or at least nearly perpetual, copyright … looms, once one realizes that the Doyle estate is seeking 135 years (1887–2022) of copyright protection for the character of Sherlock Holmes as depicted in the first Sherlock Holmes story.”

. . . .

And then came the real zinger: that the Doyle estate could be in violation of U.S. anti-trust laws:

We note finally that the estate was playing with fire in asking Amazon and other booksellers to cooperate with it in enforcing its nonexistent copyright claims against Klinger. For it was enlisting those sellers in a boycott of a competitor of the estate, and boycotts of competitors violate the anti-trust laws. The usual boycott is of a purchaser by his suppliers, induced by a competitor of the purchaser in order to eliminate competition from that purchaser…..This case is different, in its facts but not in economic substance or legal relevance, because the boycotters enlisted by the Doyle estate were buyers from the victim, rather than sellers to it. But functionally they were suppliers—suppliers of essential distribution services to Klinger.

“It’s time the estate, in its own self-interest, changed its business model,” concluded Posner.

Link to the rest at io9 and thanks to Scott for the tip.

Wattpad Expands Creative Commons Options Enabling Fan Fiction

23 July 2014

From Galleycat:

Digital writing community Wattpad is making it easier for writers to make their work available to be the basis of fan fiction. The social network has expanded its Creative Commons licensing option to level 4.0, which essentially means that they are giving writers more options to rework and remix the work of other writers.

. . . .

“The biggest question facing new writers today isn’t how to protect their work; it’s how to find a readership for it,” stated Doctorow. “It makes complete sense that so many Wattpad writers are gravitating toward Creative Commons licenses: by giving others permission to share your writing, you can open doors to new audiences and new creative opportunities.”

Link to the rest at Galleycat and thanks to AD for the tip.

Dutch court lets ebook reseller stay online

22 July 2014

From PC World:

Dutch publishers have failed in their efforts to immediately close down ebook reselling site Tom Kabinet.

The Amsterdam District Court ruled Monday that the reseller can stay in business, after the Dutch Publishers Association (DPA) filed a preliminary case at the beginning of July to urgently close the site for copyright infringement.

Tom Kabinet offers a platform that it says lets users legally sell used ebooks. Sellers have to declare they obtained their copies legally and agree to delete their versions when a sale is made. While the service has no way to verify whether a copy is legal or whether copies were deleted by their original owners, it does add a water mark to the ebook before it is sold in order to track down possible illegal distribution.

Tom Kabinet argued that its activities are legal under a 2012 ruling by the Court of Justice of the European Union (CJEU) that permitted the trading of “used” software licenses.

Link to the rest at PC World

Sherlock Holmes and the mystery of copyright

21 July 2014

From SCOTUSblog:

Are Sherlock Holmes and Dr. Watson still under a legal cloak (or cape, if you will) of copyright law?  The Supreme Court may have to solve that mystery, to decide a new legal plea filed Tuesday by the estate of Sir Arthur Conan Doyle, the Scottish creator of that fictional detective and his far less colorful companion.

The estate has been attempting to block a California lawyer and Holmes fancier, Leslie S. Klinger, from publishing a new book about the two characters unless he is willing to get a license from the estate and pay a fee.  The U.S. Court of Appeals for the Seventh Circuit rejected the estate’s copyright claim, calling it “quixotic.”

. . . .

At this point, the Doyle estate is only seeking a delay of the Seventh Circuit’s ruling, until it can file a petition for review of the decision itself.  The Seventh Circuit refused a stay on July 9.  But to deal with the application, the Court will have to decide whether the legal claim has any chance of ultimately succeeding and decide who might be hurt if a stay is, or is not, issued..

Doyle has been dead for eighty-four years, but because of extensions of copyright terms, ten of his fifty-six short stories continue to be protected from copying.

. . . .

The Doyle estate, though, is pressing a quite unusual copyright theory.  It contends that, since Doyle continued to develop the characters of Holmes and Watson throughout all of the stories, the characters themselves cannot be copied even for what Doyle wrote about them in the works that are now part of the public domain and thus ordinarily would be fair game for use by others.

. . . .

After the estate said that it would use its connections with and others to see that the new book did not get distributed, and added that it might sue for copyright violation, Klinger sued the estate in federal court to get the copyright issue settled.

In its ruling in mid-June, the Seventh Circuit found that nothing in the planned new volume will touch upon what Doyle wrote about his characters in the final ten stories that remain protected.  With its focus on those characters in the earlier, and no longer protected works, the new volume did not violate any of the estate’s copyrights, the court of appeals decided.

. . . .

That is the ruling that the estate is planning to appeal to the Supreme Court.   Its main argument is that, if other authors may exploit the Holmes and Dr. Watson characters, that “will stifle the estate’s ability to manage the Sherlock Holmes character’s further promotion and development through licensing agreements at a time when Sherlock Holmes movies and television shows are more popular than ever.”

Link to the rest at SCOTUSblog

HarperCollins digital direct platform has a problem: Free Narnia now!

2 July 2014

From TeleRead:

As reported earlier in TeleRead, HarperCollins launched its direct-to-consumer ebook sales platform, co-authored with Accenture, with C.S. Lewis and Narnia as its flagship media properties, in October 2013 in the form of the C.S. and websites. But that brave attempt at an end-run around Amazon and Smashwords has hit one little snag – C.S. Lewis’s works are now out of copyright in Canada and elsewhere, and the Narnia series is now available for free in its entirety from the Project Gutenberg Canada website.

“Find out how fans of C.S. Lewis are celebrating the life of this much-loved author 50 years after his death,” crows the banner on the HarperCollins website. Well, obviously Lewis fans at Project Gutenberg Canada celebrated by digitizing the entire Narnia series and putting it online, in HTML, text format, and very respectable-looking EPUB editions.

. . . .

Perhaps HarperCollins calculated that it could counter an inevitable dropoff in ebook sales of Narnia books with a strong promotional and branding effort, especially for markets with a longer copyright term than Canada and Australia’s 50 years. This is pure speculation, though.

Link to the rest at TeleRead

Supreme Court Rules Against Aereo in Broadcasters’ Challenge

25 June 2014

From USA Today:

The Supreme Court blocked an innovative Internet streaming service Wednesday from potentially upending the way Americans watch television.

The justices sided 6-3 with the nation’s major TV networks and cable companies against Aereo, an Internet startup that rebroadcasts live programs to subscribers without paying retransmission fees.

. . . .

Aereo had argued that it differed from cable and satellite services because each subscriber is assigned an individual, dime-sized antenna, often stored on rooftop circuit boards. But a majority of justices saw those antennas as just a way around copyright laws.

“Aereo’s system is, for all practical purposes, identical to a cable system,” Justice Stephen Breyer wrote for the majority. “Both use their own equipment. Both receive broadcast television programs, many of which are copyrighted. Both enable subscribers to watch those programs virtually as they are being broadcast.”

In making their limited ruling against Aereo, the justices stressed that new technologies such as cloud computing should not feel constrained. During oral arguments in April, Aereo’s attorney, David Frederick, said “the cloud-computing industry is freaked out about this case.”

“We believe that resolution of questions about cloud computing, remote storage DVRs, and other novel matters not now before us should await a case in which they are clearly presented,” Breyer said.

Link to the rest at USA Today and thanks to Joshua for the tip.

PG thought Aero had done a masterful job of designing its system around copyright law as construed in prior Supreme Court opinions but, obviously, he (along with three Supreme Court justices) was wrong.

The case does illustrate one way of responding to disruptive technology – having it declared illegal.

Open Road Fires Back at HarperCollins in Copyright Case

23 June 2014

From Publishers Weekly:

In a court filing, Open Road attorneys last week assailed what it called HarperCollins’ “extreme”proposal for an injunction and more than $1.1 million in legal fees and damages to settle claims stemming from Open Road’s unauthorized e-book edition of Jean Craighead George’s Julie of the Wolves.

Claiming that the Harper proposal is based on “a misleading portrayal” of the facts, Open Road attorneys argued that not only has Harper not suffered the kind of irreparable harm necessary to justify its proposed remedy, in fact it has not suffered any harm at all. “Harper cannot prove any present harm, let alone irreparable harm,” Open Road attorneys argued, noting that despite its win in court, Harper does not have the right to sell Julie of the Wolves e-books without the author’s consent, “which it has never obtained” owing to “a fundamental disagreement as to a fair e-book royalty.”

. . . .

 In its response last week, Open Road argued that it litigated the case in a “non-vexatious” manner only after two separate legal reviews supported its belief that George held e-book rights. The brief concluded that a damage award in the $750 to $30,000 range would be “sufficient,” given that Open Road has not made significant profits and that Harper lacks the explicit right to publish a digital edition of its own.

. . . .

 “Authors who believe they have retained e-book rights and traditional publishers who often overreach in claiming broad grants under the original contracts are often involved in negotiations over the exploitation of the authors’ works in new media,” the Open Road brief argues. “Given the disparity in economic resources, those negotiations are already heavily skewed in favor of the large publishers. The Court should not skew the balance further against authors who seek to assert their rights with the threat of million dollar attorneys’ fee awards.”

. . . .

 At its heart, however, as Open Road’s brief suggests, the case is more about e-book royalties. HarperCollins signed George’s Julie of the Wolves in 1971, for a $2000 advance and has since sold over 3.8 million copies in print. But according to court filings, Harper has refused to budge from a 25% net royalty on e-book sales, which George, before her death in May 2012, deemed fundamentally unfair. Open Road paid George a 50% e-book royalty.

Link to the rest at Publishers Weekly and thanks to Dana for the tip.

Sherlock lives in public domain

17 June 2014

From The Guardian:

A US court has ruled that Sherlock Holmes – along with 46 stories and four novels he’s appeared in – is in the public domain, reaffirming the expiration of the copyright once owned by the estate of Scottish writer Arthur Conan Doyle.

The ruling by the seventh US circuit court of appeals in Chicago comes after the Doyle estate threatened to sue the editor of a book of original Holmes fiction if the author didn’t pay licensing fees.

Doyle’s estate contacted Leslie Klinger in 2011, when he was about to publish an anthology of original fiction starring Holmes, A Study in Sherlock: Stories Inspired by the Sherlock Holmes Canon. The estate demanded publisher Random House pay $5,000 in licensing fees for the use of the Holmes character.

. . . .

“If you proceed instead to bring out Study in Sherlock II [the original title of In the Company of Sherlock Holmes] unlicensed, do not expect to see it offered for sale by Amazon, Barnes & Noble and similar retailers. We work with those compan[ies] routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well,” wrote Doyle’s estate.

This time, Klinger sued.

. . . .

The estate argued that copyright should continue to apply because Holmes was made a more “round” character in the last 10 stories.

“Flat characters thus don’t evolve. Round characters do; Holmes and Watson, the estate argues, were not fully rounded off until the last story written by Doyle. What this has to do with copyright law eludes us,” wrote Judge Richard A Posner in the court’s opinion.

The decision is one of the few where a reader might find a federal court discussing Star Wars. Judges said that the estate’s argument was tantamount to an argument that copyrights on Star Wars, Episodes IV, V and VI were extended because of the release of Episodes I, II and III.

“We don’t see how that can justify extending the expired copyright on the flatter character,” Posner wrote.

“Anyway it appears that the Doyle estate is concerned not with specific alterations in the depiction of Holmes or Watson in Holmes-Watson stories written by authors other than Arthur Conan Doyle, but with any such story that is published without payment to the estate of a licensing fee,” the judges wrote.

Link to the rest at The Guardian and thanks to Kris for the tip.

HathiTrust Digital Library Wins Latest Round in Battle With Authors

11 June 2014

From The Chronicle of Higher Education:

In what legal observers and fair-use advocates are calling a victory for libraries, a federal appeals court has upheld most of a lower court’s 2012 ruling in favor of the HathiTrust Digital Library in a copyright-infringement lawsuit brought by the Authors Guild and other plaintiffs.

The decision is another legal setback for the Authors Guild, which has also been fighting a long court battle over Google’s mass digitizing of books. But the appeals court’s move will encourage both scholars who want to text-mine digitized works and libraries that want to give print-disabled patrons greater access to content, among others.

Together with its partner institutions, the digital library holds millions of copies of digitized works, many of them still under copyright. In the ruling, handed down on Tuesday, the U.S. Court of Appeals for the Second Circuit, in New York, agreed with the late Judge Harold Baer Jr. of the U.S. District Court in Manhattan that HathiTrust’s creation of a searchable, full-text database of those works counts as fair use. So does making texts available in different formats for the vision-impaired and other users with disabilities that make it hard to use print, the appeals court said.

“That one’s going to have a very large impact because now we have a court of appeals on record holding that providing copies to the print-disabled is fair use,” said James Grimmelmann, a professor of law at the University of Maryland and an expert on intellectual-property issues. “The holding that search is transformative fair use is basically the same” as the lower court’s, he said. The Second Circuit ruling notes that users doing searches in HathiTrust’s database don’t have access to the full text of the works, which “fairly refutes the notion that this is a market that book authors could have hoped to license,” Mr. Grimmelmann said.

Link to the rest at The Chronicle of Higher Education and thanks to Matthew for the tip.

Judge Reminds Vexatious Human Being That Ideas — Even Techno-Dragons With Guns — Are Not Protected By Copyright

10 June 2014

From Techdirt:

When someone accuses someone else of “stealing their ideas” in a legal filing, there’s a good chance the lawsuit is doomed to fail. Ideas aren’t protected. Expressions of those ideas are, but only as long as there’s something significantly original about the expression(s) in question. Simply declaring that someone “stole” something isn’t going to cut it.

In a dismissal that runs longer than the complaint preceding it, a New York district court breaks it all down for the pro se complainant. Here are the original allegations.

In January 2014, L’Poni Baldwin published a book called The Society on Da Run: Dragons and Cicadas. This book infringes on my book Dragons: Lexicon Triumvirate, which was published in 2005.

Ms. Baldwin’s book involves “Space Dragons”, which are identical to the space dragons in Dragons: Lexicon Triumvirate. Ms. Baldwin also used a “Dragon God,” which is identical to the dragon god Dennagon in my book Dragons: Lexicon Triumvirate.

Ms. Baldwin also combines futuristic technology and dragons in her book, which is a copy of the fact that I used futuristic technology and dragons in my book. She also includes a dragon city and spaceships, which were also in my writing.

. . . .

[T]he bulk of the dismissal is a reminder that ideas — especially those that are “significantly common” — simply aren’t copyrightable. Not only that, but even given the amount of leeway granted pro se complainants, one of the key ingredients to a successful lawsuit is actually stating an actionable claim.

It is clear that Eng, as told by him in his complaint, has seized hold of similarities between his ideas, as expressed in “Dragons: Lexicon Triumvirate,” and Baldwin’s, as expressed in her own works. Far from being “original” in a legal sense, the ideas which Eng purports to own are similarly common in the corpus of American science fiction and fantasy. Moreover, plaintiff entirely fails to identify how Baldwin’s expressions are in any way substantially similar to his own, and even the most cursory comparison of the works in question can make clear that the authors express their common ideas quite differently.

For instance, Eng alleges that the “dragon gods” in Baldwin’s stories are “identical” to what the character Dennagon becomes in his own novel. But, where Eng’s supreme dragon realized singular, limitless power through contact with the titular Lexicon artifact, and made himself one with eternity itself, the “dragon gods” of Baldwin’s writings are many, less-than-omnipotent, and preoccupied with mundane concerns.

Link to the rest at Techdirt and thanks to Suburbanbanshee for the tip.

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