Mickey’s Copyright

22 September 2015

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Science “Pirate” Attacks Elsevier’s Copyright Monopoly in Court

17 September 2015

From TorrentFreak:

Earlier this year publishing company Elsevier filed a complaint at a New York District Court, hoping to shut down the two portals. According to the publisher the sites willingly offer millions of pirated scientific articles.

The court has yet to decide on Elsevier’s request for an injunction and allowed the operators time to respond. This week, Sci-Hub founder Alexandra Elbakyan submitted her first response.

While Elbakyan’s letter doesn’t address the legality of her website she does place the case in a wider context, explaining how the site came to be.

“When I was a student in Kazakhstan university, I did not have access to any research papers. Papers I needed for my research project,” Elbakyan writes (pdf), explaining that it was impossible as a student to pay for access.

“Payment of 32 dollars is just insane when you need to skim or read tens or hundreds of these papers to do research. I obtained these papers by pirating them,” she adds.

As explained in an earlier interview with TF, Elbakyan then decided to help other researchers to obtain research articles, which eventually grew to become a library of millions of works.

Elbakyan continues her letter by informing the court that unlike in other industries, the authors of these papers don’t get paid. Elsevier requires researchers to sign the copyright over to the company and collects money from their work through licensing and direct sales.

“All papers on their website are written by researchers, and researchers do not receive money from what Elsevier collects. That is very different from the music or movie industry, where creators receive money from each copy sold,” she notes.

Researchers often have no other option than to agree because a career in academia often depends on publications in top journals, many of which are owned by Elsevier.

Link to the rest at TorrentFreak, and thanks to Nate for the tip.

Posted by guest blogger Meryl Yourish.

What Ever Happened to Google Books?

13 September 2015

From The New Yorker:

was the most ambitious library project of our time—a plan to scan all of the world’s books and make them available to the public online. “We think that we can do it all inside of ten years,” Marissa Mayer, who was then a vice-president at Google, said to this magazine in 2007, when Google Books was in its beta stage. “It’s mind-boggling to me, how close it is.”

Today, the project sits in a kind of limbo. On one hand, Google has scanned an impressive thirty million volumes, putting it in a league with the world’s larger libraries (the library of Congress has around thirty-seven million books). That is a serious accomplishment. But while the corpus is impressive, most of it remains inaccessible. Searches of out-of-print books often yield mere snippets of the text—there is no way to gain access to the whole book. The thrilling thing about Google Books, it seemed to me, was not just the opportunity to read a line here or there; it was the possibility of exploring the full text of millions of out-of-print books and periodicals that had no real commercial value but nonetheless represented a treasure trove for the public. In other words, it would be the world’s first online library worthy of that name. And yet the attainment of that goal has been stymied, despite Google having at its disposal an unusual combination of technological means, the agreement of many authors and publishers, and enough money to compensate just about everyone who needs it.

The problems began with a classic culture clash when, in 2002, Google began just scanning books, either hoping that the idealism of the project would win everyone over or following the mantra that it is always easier to get forgiveness than permission. That approach didn’t go over well with authors and publishers, who sued for copyright infringement. Two years of insults, ill will, and litigation ensued. Nonetheless, by 2008, representatives of authors, publishers, and Google did manage to reach a settlement to make the full library available to the public, for pay, and to institutions. In the settlement agreement, they also put terminals in libraries, but didn’t ever get around to doing that. But that agreement then came under further attacks from a whole new set of critics, including the author Ursula Le Guin, who called it a “deal with the devil.” Others argued that the settlement could create a monopoly in online, out-of-print books.

Four years ago, a federal judge sided with the critics and threw out the 2008 settlement, adding that aspects of the copyright issue would be more appropriately decided by the legislature.

. . . .

 But, of course, leaving things to Congress has become a synonym for doing nothing, and, predictably, a full seven years after the court decision was first announced, we’re still waiting.

. . . .

 Unfortunately, Google made the mistake it often makes, which is to assume that people will trust it just because it’s Google. For their part, authors and publishers, even if they did eventually settle, were difficult and conspiracy-minded, particularly when it came to weighing abstract and mainly worthless rights against the public’s interest in gaining access to obscure works. Finally, the outside critics and the courts were entirely too sanguine about killing, as opposed to improving, a settlement that took so many years to put together, effectively setting the project back a decade if not longer.

Link to the rest at The New Yorker and thanks to Dave for the tip.

Australian ‘copyright expert’ advocates perpetual copyright

5 September 2015

From Chris Meadows via TeleRead:

[T]he director of Australian National University’s Centre of Law and Economics, Dr. George Baker . . . has claimed that current copyright law is not strict enough, and that copyright should last forever.

. . . .

Perpetual copyright simply would not make any of the original creators more creative, and it would not help future creators build on their works. And as the EFF article points out with a link to one of my favorite Axis of Awesome videos (though it might have done better to link to Rob Paravonian’s “Pachelbel Rant” instead), once you start with the idea of eternal copyright, where do you stop? Should people still be paying royalties to the estates of Pachelbel and Shakespeare? (For that matter, since nobody really knows exactly who wrote the books that make up the Bible, that would make it one of the ultimate “orphan works.”)

Spider Robinson wrote a Hugo Award-winning short story also involving music and perpetual copyright, “Melancholy Elephants” (read in single-page format via Baen), which is commonly invoked whenever the question comes up. Robinson makes the case that we need an existing body of out-of-copyright work to draw upon, because we always build on what has gone before.

. . . .

In the end, I suppose we should be glad that we’re unlikely ever to have perpetual copyright—there are simply too many well-informed people out there who wouldn’t stand for it.

Link to the rest at TeleRead

Kindle Counterfeiting — A Growing Threat to Authors

24 August 2015

From Words on Words:

An insidious form of piracy is on the rise again, and you may already be a victim.

When Vancouver attorney and author Rebecca Merry Murdock checked Amazon listings for her debut book, she found something strange. The listing for her ebook version was not linked to her author page or the print version of her book. Amazon’s support team remedied the problem by linking the ebook to the print version and her author profile.

Weeks later, Rebecca noticed that a search for her book brought up an unfamiliar ASIN (Amazon’s unique catalog number).

An imposter had stolen the content of her book, uploaded it to Amazon, and created an exact duplicate of her real sales page. That imposter had been collecting royalties for the sale of Rebecca’s book. The imposter’s sale page was indistinguishable from the real one, and worse — it was now linked to her official author page.

And as a final insult, the counterfeit page appeared first when customers searched for Rebecca’s title.

. . . .

Although Amazon’s Anti-Counterfeiting Policy states that “if we determine that a seller account has been used to engage in fraud or other illegal activity, remittances and payments may be withheld or forfeited,” there is no indication that Rebecca will be compensated for months of stolen royalties.

Link to the rest at Words on Words and thanks to Andy for the tip.

Copyright Case Asks: What is a Cheerleading Uniform?

21 August 2015

From The Wall Street Journal Law Blog:


There can be an almost philosophical quality to copyright fights, which often deal with questions of essence and being.

A ruling handed down by the Sixth U.S. Circuit Court of Appeals in Ohio on Wednesday wrestled with an inquiry into the nature of outfits worn by cheerleaders.

The question before the appellate court was whether cheerleading uniforms are eligible for federal copyright protection.

Sixth Circuit Judge Karen Nelson Moore, who wrote the opinion, framed the case more enigmatically: “Are cheerleading uniforms truly cheerleading uniforms without the stripes, chevrons, zigzags, and color blocks?”

The dispute — an infringement claim by a uniform designer accusing another company of ripping off its designs (pictured above) — is a good example of how tricky it can be for courts to decide what is copyrightable.

Federal law says that for a work to be copyrightable it has to have some originality and be “fixed in a tangible medium of expression,” such as a canvas, film, a computer disc or even human skin. But things get extra complicated in cases involving three-dimensional objects.

How to distinguish between the mechanical or utilitarian aspects of an object and its artistic features is an unsettled area in case law. Only the latter is copyrightable. So, in an example offered by the U.S. Copyright Office in its manuals, the design of a chair cannot be copyrighted but a carving on the back of a chair can be. A T-shirt isn’t copyrightable but artwork printed on it is.

. . . .

“The district court concluded that a cheerleading uniform is not a cheerleading uniform without stripes, chevrons, zigzags, and colorblocks, and therefore Varsity’s copyrights are invalid,” the opinion says.

The Sixth Circuit opinion by Judge Moore disagreed. The court likened uniforms to fabric patterns, which can be protected by copyright. Wrote the judge:

To the extent that [the defendant] contends that pictorial, graphic, or sculptural features are inextricably intertwined with the utilitarian aspects of a cheerleading uniform because they serve a decorative function… we reject that argument. Such a holding would render nearly all artwork unprotectable. Under this theory of functionality, Mondrian’s painting would be unprotectable because the painting decorates the room in which it hangs….It would also render the designs on laminate flooring unprotectable because the flooring would be otherwise unattractive….Finally, holding that the decorative function is a “utilitarian aspect of [an] article,” would make all fabric designs, which serve no other function than to make a garment more attractive, ineligible for copyright protection. But it is well-established that fabric designs are eligible for copyright protection…We therefore conclude that a pictorial, graphic, or sculptural work’s “decorative function” does not render it unable to “be identified separately from,” or “[in]capable of existing independently of, the utilitarian aspects of the article.”

Link to the rest at The Wall Street Journal (Link may expire) and thanks to Dave for the tip.

Russia Has Published Books I Didn’t Write

20 August 2015

From The Daily Beast:

A new foreign-language edition is normally cause for celebration in an author’s household. But in this case the news that two books have been published under my name by the Moscow publishing house “Algoritm” has prompted puzzlement mixed with consternation. One of them is called How the West Lost to Putin. The other is With Putin or without him: what awaits Russia in the next 10 years. I had no idea about either. Nor had my agents, Rogers Coleridge and White, who have dealt with 30-plus foreign-language editions of my previous books.

I am not the only recipient of this unexpected and unwanted compliment. My colleague Luke Harding, a former Moscow correspondent of the LondonGuardian, and my friend Don Jensen, a veteran cold warrior and commentator, have also had books published in their names. Rather more grandly, another book has come out in the name of Henry Kissinger.

It is hard to work out the justification for what looks like an act of intellectual piracy. “My” two books seem to be a collection of interviews and articles already published in other outlets. I may be mistaken, but I don’t think that Algoritm is going to find that a commercial bonanza. I did publish my first book, The New Cold War in Russian, but sales were modest. The effort of collating and translating less substantial bits of work would hardly be merited by the likely sales.

So it is more likely that the aim is propagandistic. The blurb on the publisher’s website says that: “Lucas expresses the views of that part of the British establishment which is negatively directed to the politics of the Putin regime.” The Kremlin’s spin machine wants to portray Russia as a besieged fortress surrounded by malevolent outsiders. How better to demonstrate that than by publishing an establishment jackal who yaps the tunes of the British establishment?

Link to the rest at The Daily Beast and thanks to Matthew for the tip.

Instagramming your brunch could soon be a crime in Germany

19 August 2015

From The Local:

Instagrammers and foodies beware: snapping pics of scrumptious snacks in Germany could leave you facing a lawsuit for copyright infringement by the chef, a lawyer has warned.

. . . .

#FoodPorn is a widely recognized tag on social media for ridiculously mouth-watering food images – but according to a report by Die Welt, food bloggers across Germany could find themselves up against the law when they photograph and upload their meals.

A 2013 Federal Court of Justice ruling expanded copyright protections to apply to elaborately arranged food, making it the artistic property of its creator. That means that anyone wanting to post a pic of the work of culinary art may have to ask permission first.

“An elaborately arranged dish in a restaurant can be a copyright-protected work,” explained Dr. Niklas Haberkamm, partner at corporate law firm Lampmann, Haberkamm & Rosenbaum (LHR) to Welt.

“In such a case, the creator of the work has the right to decide where and to what extent the work can be reproduced,” he said.

. . . .

German legal services website wrote in a post about food porn on Thursday that whether a meal is considered art depends on the advanced level of the meal’s design, so snapping a selfie with your French fries from a food stand is not going to be the problem – it’s when you go to more refined, world-rated establishments.

Link to the rest at The Local

PG is not an expert on German or EU copyright law, but, in the US, he suggests this would be a stretch.

Authors, Keep Your Copyrights. You Earned Them.

14 August 2015

From The Authors Guild:

Authors should not assign their copyrights to publishers. As our Model Contract emphasizes:

“CAUTION: Do not allow the publisher to take your copyright or to publish the copyright notice in any name other than yours. Except in very unusual circumstances, this practice is not standard in the industry and harms your economic interests. No reputable publisher should demand that you allow it to do so.”

Most trade publishers do not ask for an outright assignment of all exclusive rights under copyright; their contracts usually call for copyright to be in the author’s name. But it’s another story in the world of university presses. Most scholarly publishers routinely present their authors with the single most draconian, unfair clause we routinely encounter, taking all the exclusive rights to an author’s work as if the press itself authored the work: “The Author assigns to Publisher all right, title and interests, including all rights under copyright, in and to the work…”

. . . .

The problem is that most academic authors—particularly first-time authors feeling the flames of “publish or perish”—don’t even ask. They do not have agents, do not seek legal advice, and often don’t understand that publishing contracts can be modified. So they don’t ask to keep their copyrights—or for any changes at all. Many academic authors tell us they were afraid to request changes to the standard agreements for fear that the publisher would pull the plug on their books. One said that when his first book was published in 1976, he never even read the contract and would (and did) sign anything to get published.

So we asked several university press representatives “Why is a clause granting copyright to the publisher the default language in university press agreements?” Here’s what they said (sometimes after consulting with their lawyers):

  • “We are a non-profit press and we can’t do things that commercial trade presses do.”
  • “The press is better positioned than the author to defend the copyright by use of premium outside counsel, as well as by use of an anti-piracy service to curb piracy.”
  • “Having the copyright in the press’s name allows us to work freely to maintain the integrity of the work and maximize its publishing life.”
  • “We’re close enough to the work to do the best job and we have incentive to protect the publishing mission.”
  • “It makes it easier for the press because it doesn’t have to ask for an author’s approval when permission uses are granted.”
  • “It eliminates any confusion as to which party should be contacted regarding re-use and sub-rights, etc. and it simplifies things in regards to piracy as well. Trade authors are more likely to have agents who may retain certain sub-rights and exploit them independent of any publisher relationship.”

Not one of these rationalizations passes the giggle test.

Link to the rest at The Authors Guild and thanks to Melinda for the tip.

Making Sense of Collaboration Agreements

12 August 2015

From CopyLaw:

Nearly everyone has heard the oft-repeated statistic that 50% of all marriages end in divorce. But what about creative partnerships?  The odds are no better.   Pity the poor expert, celebrity, author, playwright or screenwriter who enters into a creative partnership without thinking about the financial, emotional and practical challenges ahead of them.  If the relationship falters, a well-drafted collaboration agreement (written during the romance stage of the relationship) can be consulted.   If the relationship fails, that agreement will help for a clean break-up.

Like marriage, the key reasons most authors cite for failed collaborations are lack of commitment, lack of communication, lack of equality, unrealistic expectations, and, surprisingly, lack of mutual respect.  While trust is an important element of any relationship, without a written agreement you are ill equipped to deal with these and other conflicts.  Contracts define rights and remedies, and thus help avoid misunderstandings.

. . . .

The formation (and dissolution) of a creative partnership is governed by federal copyright law and state contract law. When authors blend their talents to create a unitary work, each collaborator is presumed to co-own the copyright, and share equally in the  money the copyright generates – whether profits or royalties. Further, under the default rules of the Copyright Act – which can be altered by a written agreement — each collaborator can license the nonexclusive rights to the work to a third party, provided they fairly account for the profits to the other.

Problems between collaborators commonly arise when there are multiple offers for the work or requests for exclusive rights and no agreement exists between the collaborators. If your collaboration is not working, and your agreement doesn’t delegate the right to make business decisions to one of the partners, a recalcitrant collaborator can prevent the other collaborator from licensing or selling film or other rights in the work.  For this reason, you might consider changing the default rules of equal control and ownership, if the book is memoir, or an extension of one author’s business or brand.  Relinquishing control, however, does not necessarily mean a smaller financial interest or lack of transparency.

. . . .

If you can’t hold it together long enough to see the work published, the impact of a literary breakup can be devastating.  One such disaster scenario is the unilateral termination of “as told to” collaborations, such as the failed collaboration between Fay Vincent, the former commissioner of baseball, and writer David Kaplan.  After 90% of Vincent’s memoir was completed, Vincent withdrew the project from his publisher, and thwarted Kaplan’s efforts to publish the book under Kaplan’s own name. See, Kaplan v. Vincent, 937 F. Supp. 307 (SDNY 1996).  If the parties had a well-written agreement – as opposed to an oral understanding — likely, costly , time consuming and psychologically draining litigation would have been avoided.
If you are a writer who has been approached to help write a memoir, your agreement needs to address: (i) access to pertinent documents; (ii) reasonable access to the subject; and (iii) the subject’s good faith effort to secure the writer’s access to interviews with other individuals as may be needed to prepare the proposal or complete the book. From the subject’s perspective, confidentiality is a key issue.

If you are assisting with a memoir, are you delivering a “warts and all” portrait? Alternatively, is your role to put the best face on your subject’s life story, without resorting to blatant deception? A property drafted collaboration agreement will address these issues.  The greater you detail what is to be delivered, the less arbitrary the acceptance standards will be.  Since progress payments are the norm, if the subject is unhappy, you may not see anything beyond your initial payment or advance.

Link to the rest at CopyLaw

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