From The Washington Post:

The Supreme Court ruled Tuesday that textbooks and other goods made and sold abroad can be re-sold online and in discount stores without violating U.S. copyright law.

In a 6-3 opinion, the court threw out a copyright infringement award to publisher John Wiley & Sons against Thai graduate student Supap Kirtsaeng, who used eBay to resell copies of the publisher’s copyrighted books that his relatives first bought abroad at cut-rate prices.

Justice Stephen Breyer said in his opinion for the court that once goods are sold lawfully, whether in the U.S. or elsewhere, publishers and manufacturers lose the protection of U.S. copyright law.

“We hold that the ‘first sale’ doctrine applies to copies of a copyrighted work lawfully made abroad,” Breyer said.

. . . .

Kirtsaeng sold $900,000 worth of books published abroad by Wiley and others and made about $100,000 in profit. The international editions of the textbooks were essentially the same as the more costly American editions. A jury in New York awarded Wiley $600,000 after deciding Kirtsaeng sold copies of eight Wiley textbooks without permission.

The high court wrestled with what protection the holder of a copyright has after a product made outside the United States is sold for the first time. In this case, the issue was whether U.S. copyright protection applies to items that are made abroad, purchased abroad and then resold in the U.S. without the permission of the manufacturer.

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

This decision complicates the decision to sell territorial rights for major publishers.

If there are large differences in the pricing of English-language books by either the US publishers selling abroad or by foreign publishers operating under territory licenses, the US publisher has to assume that books published abroad will make their way back to the US market.

From author Anne R. Allen:

Thing is: fair use doesn’t apply to songs. That’s because songs can have very few lines to use—fairly or otherwise.

. . . .

What you CAN use without permission is a song’s title. Titles can’t be copyrighted.

. . . .

Here’s Blake Morrison in the Guardian talking about the price of using song lyrics in his novel South of the River.

‘I’d restricted myself to just a line or two from a handful of songs and vaguely hoped that was OK or that no one would notice. My editor, reasonably enough, was more cautious, and at the last minute someone from the publishing house helpfully secured the permissions on my behalf.

‘I still have the invoices. For one line of “Jumpin’ Jack Flash”: £500. For one line of Oasis’s “Wonderwall”: £535. For one line of “When I’m Sixty-four”: £735. For two lines of “I Shot the Sheriff” (words and music by Bob Marley, though in my head it was the Eric Clapton version): £1,000. Plus several more, of which only George Michael’s “Fastlove” came in under £200. Plus VAT. Total cost: £4,401.75. A typical advance for a literary novel by a first-time author would barely meet the cost.’

. . . .

I’m working now on a novel about Boomers set in the ’60s, ’70s and ’80s, and I’ve solved the music problem by writing my own lyrics. I had a whole lot of fun writing a David Crosby-style folk-rock love song, “Happy Endings are Only for Fairy Tales” and a Donna Summer-style disco song, “City Girls” and a druggy hair-rock anthem, “Bored as Hell.”

Link to the rest at Anne R. Allen

Passive Guy has mentioned writing some Welsh poetry that Dylan Thomas might have penned on a really, really bad day for one of Mrs. PG’s books.

Fair use applies to everything that is subject to copyright, but Anne is correct that, as a practical matter, because of the small number of words, quoting a song or a non-epic poem is very difficult to get past a fair use test. Plus, as a practical matter, the music labels want everyone to know they will sue and a nasty response to any use of music lyrics is a form of insurance for them.

From Dean Wesley Smith:

When and how do you get your book back?

. . . .

On a standard traditional publishing contract these days (in the States), you are signing over the rights in the contract for “the life of the copyright.” Now, under contract law in the States, a contract must have a firm end date, and this has been tested to be a firm end date. 70 years past the death of the author. Firm amount of time, so legal.

So the publisher is trying to get most rights to your book for your life, your kid’s life, and into the old age of your great-grand kids. Head-shaking, but true. (In other words, if you live for 50 more years, the contract could be good for 120 years. The same as if someone had signed a contract in 1893.)

Why do they need or want this? Because a license for a copyright is a form of property. And has value to the bottom line of corporation accounting ledgers.

. . . .

Now stop and think about that for a moment. The copyright license you signed over in your contract has value, so why should they just give it back to you?

Starting to see the problem? Pretend you bought a rental property. It is part of your net worth. Would you want to just give it back to the seller because they asked even though you paid money for the property and your contract says you don’t have to? Not likely.

. . . .

But wait, you say!!! (I can hear you.)  Right there, in my contract, is a reversion clause that allows me, under certain conditions, to get my book transferred back to me so that I can get it back into print indie publishing or resell it to another publisher.

On the surface it seems that way. And that land for sale in Florida looks great as well in those pictures.

Under all contracts I have seen lately, that reversion clause is phrased in such a fashion that almost no circumstance would ever allow that property to leave the corporate balance sheet. At least for the life of the copyright.

In other words, you will never see your book again.

. . . .

Also, I want to be clear to all of you traditional-published old-timers out there who keep telling writers this isn’t a problem. This clause in contracts for new writers has changed in the last eight years or so. Kris and I got every book we sold to New York publishers (that we owned) reverted except for one. (Not the work-for-hire books. All the reverted books had contracts done before the changes started.)

These new reversion clauses are one of the major reasons I won’t sign a traditional publishing contract at the moment unless it is a media or work-for-hire, which I don’t expect to ever own.

. . . .

If you have clout, meaning your advance is mid-six figures and up, you can get a termination date on the contract. Many brand names give a publisher ten years which I feel is a fair and decent time. But us normal writers can’t get a termination date on a contract. Most contracts out of Europe have either termination dates or totals sales terminations. Very simple and good for the writer. But most traditional contracts in the States define the termination date as the life of the copyright.

Link to the rest at Dean Wesley Smith

As long-time visitors to The Passive Voice know, PG believes publishing contracts made for the life of the copyright are ridiculous and unfair.

PG will confirm Dean’s observation that out-of-print provisions in recent New York publishing contracts should more accurately be called never-out-of-print provisions. If you can’t understand the out-of-print clause in your publishing contract, you’ll probably have problems trying to exercise it.

While PG makes some money helping authors get out of lifetime plus 70 year contracts, he thinks the world would be a better place if publishing contracts, like all sorts of other business contracts, ended after a reasonable period of time.

One of the ways that some new small presses are competing for authors is to offer far better publishing contracts than New York offers. Some of these contracts are ending after three years, five years, seven years, ten years. When one of these new model contracts ends, if the author and publisher are both satisfied with the relationship, they can always extend it for several more years.

What a refreshing change! A business relationship continues because both parties are happy with it, not because one of the parties used its superior bargaining and market power to coerce the other into signing an unfair contract.

This is how contracts work in the reality-based business world. The fact that Big Publishing is so much different is yet more evidence of the inbred parochialism that makes that business a sitting duck for Amazon and others.

From the website of Random House’s almost-vanity imprints:

In response to recent constructive discussions with authors, agents and writers’ groups, including the Horror Writers Association, we are making adjustments to our proposed terms for authors with Random House’s new digital imprints, Hydra, Alibi, Loveswept, and Flirt. Prospective authors will have a choice of two models under which to publish: a profit share or an advance plus royalty.

• Under the profit share model, there is no advance offered. Hydra, Alibi, Loveswept, or Flirt and the author will split profits 50-50 from the first copy sold. The term “profit” will be defined as net sales revenue minus deductions as follows: For print editions, deductions will include actual costs directly attributable to production and shipping of the book; for digital editions, Hydra, Alibi, Loveswept, or Flirt will cover the cost of production. For both print and digital editions, Hydra, Alibi, Loveswept, or Flirt will cover all marketing costs connected with general, category- or imprint-wide marketing programs. Hydra, Alibi, Loveswept, or Flirt will also cover costs of marketing activities undertaken specifically on behalf of the book up to $10,000. Title-specific marketing costs above $10,000 will be proposed in advance to the author. If the author agrees, the incremental costs of such title-specific marketing activities over $10,000 will be deducted from sales revenue before profits are split. Cash payments owed to authors will be made quarterly.
• Under the advance plus royalty model, authors are offered a more traditional publishing arrangement, with Random House’s standard eBook royalty of 25 percent of net receipts. These authors will be paid an agreed-upon advance against royalties, and Hydra, Alibi, Loveswept, or Flirt will cover production, shipping, and marketing for all formats at 100 percent of cost.

. . . .

Hydra, Alibi, Loveswept, and Flirt acquire rights to every book for the term of copyright, subject to an “out-of-print” clause, which provides for the author to request reversion of his or her rights three years after publication if the title fails to sell 300 copies in the 12 months immediately preceding the request.

Link to the rest at At Random and thanks to Kat and others for the tip.

PG will leave it to his visitors to determine whether this is true reform on the part of these imprints or if their first deal terms were more reflective of their true attitude towards authors.

He will opine that an out-of-print clause that is based on digital copies sold instead of cash paid to an author is a sucker’s game. What is the price of these digital books? 99 cents? 10 cents? one cent?

Remember, as the HALF folks say, they are acquiring rights to every book forever. During “forever”, no author can assume that Amazon’s present rules for pricing will continue. During “forever”, inflation will almost certainly occur so today’s 99 cents becomes tomorrow’s one cent.

PG also reminds all who would venture into HALF’s domain to read the contract. It will certainly contain provisions that are not discussed in the organization’s blog posts.

From PBS MediaShift:

On January 29, Amazon Technologies Inc. received a patent pertaining to the “secondary market for digital objects.” According to the patent abstract, the technology will enable Amazon customers to transfer — and presumably sell — e-books, MP3s, and other digital files to other customers. And, Apple too has filed for patents on the transfer of owned digital items.

The whole issue of used digital goods is a big one, with far-reaching implications for media in general, but music and publishing in particular.

. . . .

It’s still unclear however, if Amazon will actually use the patent. And if it does, how it might structure such a business. An Amazon representative declined to comment to MediaShift on the issue.

. . . .

Still, prominent authors have begun to debate what the potential sale of used e-books would mean for the publishing industry and the writers who depend on it. If used e-book sales follow the model of used print book sales, they will provide no revenue for authors and publishers. But digital copies don’t degrade the way printed books do, so the availability of used e-books could also remove readers’ incentive for buying new e-books.

In selling used digital music, ReDigi differs from other used goods marketplaces (including how Amazon deals with used physical goods) in that it pays both the copyright holder and the artist. Recently at the Tools of Change conference in New York, ReDigi CEO John Ossenmacher assured the book industry that the company would also compensate publishers and authors with e-book resales.

. . . .

Bill Rosenblatt, president of digital consulting firm Giant Steps Media, summed up at the Tools of Change conference the ramifications for authors by simply saying that they’re most likely to be the ones stuck in the middle. The winners will be the resellers, libraries and consumers. The losers will be conventional publishers and new retailers. But for authors, it could go either way.

“Perhaps the increased economic activity of digital resale will make up for any losses in new sales,” Rosenblatt said.

. . . .

John Scalzi wrote on his blog, “There’s a direct correlation between me getting paid to write novels, and me writing them.”

Do readers fail to appreciate that their book purchasing decisions affect whether or not their favorite writer can produce another book? Scalzi said this might be true.

“People don’t see creative people as they are in reality,” he said. “Ninety-nine percent of everybody in a creative field is barely eking by. Also, when it comes right down to it, people like getting bargains. They’re not following the product chain back to the initial starting point.

“People are always going to want to get things inexpensively, so part of our job these days is to remind them there’s an actual human being on the other end of the equation, and that actual human being has rent to pay, and children they’d like to feed. The vast majority of writers are not like Stephen King or J.K. Rowling or Suzanne Collins. The average author makes a four-figure salary a year from their writing. If you don’t pay them, a lot of them will decide they can’t afford to write professionally anymore.”

. . . .

In a February 7 post on his blog, Scalzi wrote, “I would rather you pirate the e-book than buy it used.” When asked to explain this comment, he said, “If you’ve made the determination that you’re not going to pay me for the book, I don’t see why [Amazon CEO] Jeff Bezos or anyone else should get paid. I’m the guy who wrote it. Why should they get paid? All they are doing is giving you a space to sell that thing. They’re going to take a cut out of work that other people did.”

Link to the rest at PBS and thanks to Jeanne for the tip.

From Courthouse News Service:

Similarities between Harlequin’s novel, “The Proud Wife,” and a romance writer’s unfinished work fall short of a copyright violation, a federal judge ruled.

Kelly Rucker had filed a federal complaint against Harlequin Enterprises in April 2012, claiming that the publisher plagiarized her novel “How to Love a Billionaire.”

Though her book remains unfinished, Rucker allegedly submitted the first chapter and a plot synopsis to multiple romance-novel writing contests from 2009 to 2011.

. . . .

U.S. District Judge Lee Rosenthal dismissed the case with prejudice Tuesday. “This court does not resolve whether Harlequin accessed Rucker’s work because, as explained below, there is no actionable similarity between the works and therefore no infringement,” the 18-page opinion states.

None of the similarities between “The Proud Wife” and “How to Love a Billionaire” emerge “in legally protected elements,” the court found.

“The similarities between the two works are in generic elements – features, plots, characters, and elements found in many romance novels,” Rosenthal wrote. “A theme or trope that has long existed is not ‘expression’ that the Copyright Act protects.”

Link to the rest at Courthouse News Service and thanks to B.S. for the tip.

Here’s the court’s opinion. In PG’s inestimably humble opinion, this was a really lame suit to pursue.

From Time:

The Harlem Shake, now two weeks into its life as America’s favorite (or most annoying) meme, has shown a surprising resilience in an age when most Internet jokes have a 24-hour shelf life. More than 4,000 videos featuring the words “Harlem Shake” were being posted per day to YouTube during the peak of the mania last week, and new versions continue to crop up. The primary element holding the videos together, which feature everything from dancing walruses to Power Rangers, is the song “Harlem Shake,” a hip-hop instrumental that sports a now-infamous beat drop about 15 seconds in. While the videos are simple fun for the thousands of people that have participated in Harlem Shakes, they’ve become an easy moneymaker for the song’s creator, Baauer, and YouTube itself.

Just a few years ago, copyright lawyers likely would have shut down the Harlem Shake craze before it could really get going.

. . . .

Through a service called Content ID, YouTube automatically trawls its servers looking for copies of copyrighted materials that owners have asked to be protected. Users of the service can then have these copies removed from YouTube, do nothing, or have ads sold against the videos if they qualify for monetization. When Baauer’s label, Mad Decent, originally uploaded the full “Harlem Shake” song to YouTube in the summer of 2012, they were hoping it would proliferate. “We’ve, from the beginning, been very much a proponent of allowing everybody to do whatever they want with our stuff, as long we’re able to monetize it,” says Jasper Goggins, the manager of the label. “It’s a great way to help spread the music.”

. . . .

Thanks to Content ID, Baauer was well positioned to immediately begin profiting when the Harlem Shake meme took off at the start of February. When the University of Georgia does the Harlem Shake underwater or a firefighter does it with a chicken, Baauer and his label get some of the ad revenue, as does YouTube. The people shooting the videos get no money because they are using copyrighted content. So far thousands of Harlem Shake videos totalling tens of millions of views have been claimed by the copyright owners in order to be monetized.

Link to the rest at Time

From readwrite:

It’s finally happening. That moment we’ve been hearing about for years – the one where futuristic-sounding 3D printing becomes ubiquitous – is actually upon us. President Obama even mentioned 3D printing in his State of the Unionaddress.  As prices drop and the technology improves, consumers are awaiting this disruptive new era with bated breath.

So are intellectual property lawyers.

Before long, many of us will be able to print physical objects as easily as we once burned DVDs. And just as the Internet made trading MP3 music files and ripped movies a breeze, downloading 3D images to print on your shiny new MakerBot printer will be as easy as torrenting “The Hurt Locker.”

. . . .

Last week, HBO sent a cease-and-desist letter to Fernando Sosa asking him to stop selling a 3D printed iPhone dock he modeled after the Iron Throne chair from the popular HBO TV series Game of Thrones.  Even though Sosa designed the dock himself in Autodesk Maya, HBO owns the rights to the show, its characters – and apparently the inanimate objects that appear onscreen.

It has been two years since the first known Digital Millennium Copyright Act (DMCA) takedown notice for a 3D printable object was sent.

. . . .

In general, non-artistic objects – that is, items intended to be used rather than admired for their aesthetic value – do not typically fall under the scope of copyright law.

. . . .

But what if you design a chair with a very unique ornamentation on the armrests? If you download my chair design and print yourself out a version of the chair for your very own, can I sue your brains out, RIAA-style?

Link to the rest at readwrite

At the moment, 3D printing is focused on objects. When PG read this item, he wondered what 3D stories might be like.

If you’re interested in more about 3D printing, you’ll find a couple of videos below.

.

From The Digital Reader:

As you probably know, the vast majority of the Holmes stories are old enough that they are no longer in copyright in the US. (The author died in 1930, so his entire body work is public domain everywhere but the US.) In the US you can legally download nearly any of the Holmes stories from sites like Project Gutenberg. If you wanted to, you could then format the stories as ebooks or bind them into a paper book and sell the stories. This is completely legal.

But according to the Conan Doyle estate, one thing you cannot do is write a new story that features Sherlock Holmes. There is exactly one remaining Conan Doyle book, The Case-Book of Sherlock Holmes, that still contains copyrighted Sherlock Holmes stories – 10 stories, in fact. Because some of the original stories are still in copyright in the US, the estate believes that they can control who writes new stories. They are using that control to collect fees from publishers, studios, and anyone with deep pockets.

. . . .

US copyright law protects a work as a whole, not the elements in a work.

. . . .

If the elements of a story can be copyrighted and not the work as a whole, then all of the Sherlock Holmes stories that have entered the public domain include a copyrighted element. If the Holmes character is still under copyright then arguably you cannot do _anything_ to _any_ of the Holmes stories. They all mention a copyrighted element and thus cannot be used.

Link to the rest at The Digital Reader

Following up on a prior post, Spots the Space Marine is back up on Amazon.

Thanks to Andrew for the tip.