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.

Extended Collective Licensing: an Online Survey

10 June 2014

From Action on Author’s Rights:

Extended collective licensing (ECL) is a form of collective licensing of copyright works under which collecting societies are legally permitted to license the use of works created by (or belonging to) persons who are not members of their society. Last summer the UK Parliament passed primary legislation to legalise extended collective licensing by UK collecting societies. Secondary legislation is expected this autumn: this will set out in detail the regulations under which such schemes will operate.

The libraries and archives sector (or at least, the big, well-funded libraries and archives) want an ECL scheme or schemes that will permit them to digitise printed books and other materials and make them available online. The Government has announced its intention that ECL should be available for mass digitisation projects.

. . . .

These projects will sweep up the works of foreign as well as British authors, illustrators, photographers, etc.

Members of licensing societies are going to be given the opportunity to vote on such schemes. Non-members are to be allowed to make representations to the UK government; that is, if they are exceptionally well-informed and manage to find out that a scheme is under consideration. If they find out about a scheme in time, non-members will also be allowed to opt out.

. . . .

As I have already said, ECL is a can of worms. For one thing, it will involve the intrusion of collective licensing into areas such as book publishing and licensing illustrations where direct licensing has been the standard procedure. Worse, it is going to disrupt the long-established industry practice under which authors license their books to publishers on an exclusive basis. What happens when the government permits private companies (for that is what the licensing societies are) to override the provisions in commercial agreements legally contracted between third parties? Who knows? but it appears we are about to find out. There are other problems. It is highly questionable whether ECL for book digitisation is compatible with the UK’s international obligations under the Berne Convention and other copyright and IP treaties.

Link to the rest at Action on Author’s Rights, including a link to an online survey, and thanks to Gill for the tip.

Web browsing is copyright infringement, publishers argue

6 June 2014

From Ars Technica:

Europeans may browse the Internet without fear of infringing copyrights, as the EU Court of Justice ruled Thursday in a decision that ends a four-year legal battle threatening the open Internet.

. . . .

In this week’s case, the court slapped down the Newspaper Licensing Agency’s (NLA) claim that the technological underpinnings of Web surfing amounted to infringement.

The court ruled that “on-screen copies and the cached copies made by an end-user in the course of viewing a website satisfy the conditions” of infringement exemptions spelled out in the EU Copyright Directive.

. . . .

 “Despite the ruling, one cannot overstate how irrational this case was to begin with. It’s hard to believe the question at stake was whether browsing the Internet is legal or not,” said Jakob Kucharczyk, the Brussels director for the Computer & Communications Industry Association. “Even though the court has provided a clear answer to that question, one must wonder whether our copyright regime is apt for the digital era.”

Link to the rest at Ars Technica and thanks to Chris for the tip.

PG is definitely not an expert on European law, but this seems a strange case to have been brought in the first place.

Web browsers must certainly be the most common type of software in use around the world. Every computer, tablet and smartphone has a browser in it and (PG thinks) every browser does some sort of caching as a means of speeding up the web browsing experience.

The idea that a copyright holder which makes its content available on the internet in a form designed for viewing via a web browser does not consent to the technical means by which that browser operates to present content to the viewer is bizarre.

Look who’s…not here yet

15 May 2014

From TeleRead:

Most of the time, geographic restrictions on book publishing and e-book sales work against people outside the USA who want to get the latest book from the USA that hasn’t been published where they are. But every so often, it goes the other way around.

A book that has picked up a lot of press over the last month or so is a satire by German author Timur Vermes called Look Who’s Back (or, in the original German, Er ist wieder da, literally “He’s back again.”) As you might guess from the cover image, the “who” in question is one Adolf Hitler.

Written in first person from der Führer’s point of view, the novel chronicles the events that follow when Adolf Hitler unexpectedly wakes up in 2011 Germany with no memory of any events that follow his death at the end of World War II. Taken for a method-acting comedian (because, after all, who would expect him to be the real Hitler?), he achieves modern-day Internet celebrity.

. . . .

Part of the book’s satirical point is that, by expressing the same views held by the real historical Hitler, this latter-day Hitler attains popularity because people are willing to listen to what he has to say—just as they were back in the day.

. . . .

Even though it’s got an English translation, the only paper copies are listed as available on the USA’s Amazon come from third-party sellers—obviously, imports—and the e-book version has an availability date listed of December 31, 2035. That has to be a placeholder date; the last time I checked the e-book had a date listed in August of 2015 but they must have changed it. So in actuality there’s nothing to say when the book will be available in the US; maybe the European publisher hasn’t even decided yet.

The book is available in Kindle format in Europe. If you click on the cover of the hardcover to do the look inside the book thing, the preview is of the Kindle version of the English translation, so it definitely exists. It’s just that it’s not licensed for distribution in the USA yet so you can’t actually buy it that way over here.

. . . .

It took me one minute of searching to find a verifiably real downloadable EPUB of the English translation. It didn’t even require BitTorrent. So if I wanted to read the book without paying for it, I could start right now. As we’ve mentioned time and again, windowing only serves to promote piracy. Even the Big Six publishers realized that when they decided to implement agency pricing.

Publishers need to start getting their acts together, and forge partnerships with foreign publishers if they can’t world-publish themselves. The book has already been translated into English, so it’s not as if it would need to go through another edit pass. They just need to get it printed and into the distribution system. And ideally they should figure out how to do that quickly, so they can strike while the iron of publicity is hot. Who’s even going to remember the publicity about this book by the time it finally does come out in the USA?

Link to the rest at TeleRead

Textbook Publisher Backs Down, Won’t Force Students to Return Paper Textbook

12 May 2014

From The Digital Reader:

An email was making the rounds last week from Aspen publishers, a Wolters Kluwer Law imprint.

This publisher sent the email to law professors to tell them about changes that were coming with the new edition of  certain casebooks, including both a new website and the requirement that students return the casebook at the end of the semester (a violation of the First Sale Doctrine).

Naturally this caused a ruckus on this blog as well as among the law professors who received the email,and a couple days later Aspen responded to the protests with a clarification. They insist that their attempt to take rights away from students was merely one of the options a student will have for buying the next edition.

. . . .

Wolters Kluwer is trying to cut into the resale market and deprive students of the rights they have over their property.

I have to agree with Kevin Smith when he criticized Wolters Kluwer:

First, just a reminder that these attempts to undermine the right of first sale are an effort from publishers to gain a sort of “super” property right.  No other property owner expects to be able to sell their product and still be able to prevent the purchaser from making a resale.  To see the absurdity of this, imagine if Ford tried to shut down the market for used cars by including such a restriction in a purchase contract; it would be a quick way to go out of business.  If Aspen really cannot survive in a market where resale is an option — this has been the case in the U.S. for its entire history, as well as in the rest of the world for a long time — it is probably time for them to shut off the lights and go home.

Link to the rest at The Digital Reader and thanks to Glinda for the tip.

The first sale doctrine, codified at 17 U.S.C. § 109, allows any person who purchases a copy of a copyrighted work from the copyright holder or from someone else who has acquired the copy from the copyright holder to sell or otherwise dispose of that copy, notwithstanding the interests of the copyright owner. 

When Lyrics Get Posted Online, Who Gets Paid?

11 May 2014

From National Public Radio:

Any time a song is popular, you’ll find people debating it. And at some point during that debate, someone is going to Google the lyrics.

There are roughly 5 million searches for lyrics per day on Google, according to LyricFind. Those searches often lead to websites that post lyrics to lots of songs — and, in many cases, sites that post ads alongside those lyrics.

David Lowery, frontman and songwriter for Cracker and Camper van Beethoven, is waging war on the sites he believes make money off song lyrics but don’t pay the songwriter. Once he took a closer look at where his music was making money on the Internet, he realized: There were more people searching to find lyrics to his songs than searching to illegally download mp3s of his music. And he wasn’t making money off those searches. Last November, after months of exhaustive and systematic Googling, he released something called The Undesirable Lyric Website List.

The National Music Publishers Association seized upon this list, and announced that it would be sending take-down notices to every single name. At the top of that list was the very popular Rap Genius.

. . . .

 Just this week, Rap Genius announced that, despite its opinion that the site falls under the criteria for fair use, it’s going to pay songwriters for posting their lyrics. It’s just easier than fighting with music publishers, who’ve been very successful at going after other lyric sites in the past few years.

Link to the rest at NPR and thanks to Joshua for the tip.

Self-Publishing #Fails

6 May 2014

From Joel Friedlander:

As an author said to me last night, “This self-publishing is a lot of work, it’s hard.”

Hey, at least she has good advice and people to call on. It’s the other people I worry about, the ones who don’t know when they are poised to step right in something unpleasant, something that might require some real effort to get rid of.

Yes, it’s the Self-Publishing #Fails.

. . . .

1. Formatting for beginners.

In the last couple of weeks I’ve been handed 2 books by their authors that really made my heart sink. Why? In each case the author was a professional, highly educated, well-informed and determined to create a book worthy of commercial publication.

Problem? They had each found a “semi-pro” book formatter to create their nonfiction book interiors. How do I know they were “semi-pro”? Immediately I saw things like blank right-hand pages, running heads on blank pages, an entire book typeset with hyphenation set to “off,” inappropriate visual spacing, all the usual suspects.

. . . .

3. Is That Cover Yours or Mine?

An author in the popular paranormal romance genre was just getting started in her career. She studied all the blogs that other writers in her peer group wrote, and learned how to put together a book for print on demand publishing.

She wanted a distinctive cover treatment, especially because she was launching a series, with the intent to publish a whole line of books with the same characters appearing in different settings and combinations.

So the whole representation of the story on the front cover of the first books was of a lot of concern.

She found an artist who specialized in illustrations for book covers, and the two had a great working relationship.

Together, they came up with a beautiful cover, attractive typography, and a custom illustration that truly represented the whole work.

Everyone was happy.

But then a funny thing happened. The book, and it’s sequel, started to get really popular, selling tens of thousands of copies.

When the author got back in touch with the illustrator for a new cover for the next book, she also got a shock.

The illustrator let the author know that she now owed more money for the first illustrations, and that the new illustrations were going to cost a lot more, like triple the original cost.

Link to the rest at The Book Designer

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