anticircumvention exemption rule published

I’m going to try to summarize the newly published exemption to the anticircumvention rules, but it will take a while because it’s complicated as heck. For our class of university folks, it’s better, BUT — .

The “but” will take a while to explore. In the meantime, my less educational and informative assessment of this rulemaking:

The prolixity of this rulemaking puts it into its own special hell of inaccessible, unintelligible, crazy-making meshugaas / mishegas. It makes me nostalgic for the glory days of 2000, 2003, when at least you could read the exception. Can’t they just “publish any class of copyrighted works”?

Is this the kind of fine regulatory work we could expect even more of from a newly independent Office?

On medical devices and all the other really nutty stuff they were dealing with: The CO really should have been bold and broadened the run-around they did on printer cartridges in ’06, beefing it up with a little misuse …. As Cathy Gellis points out, they go the extra mile on interpreting their authority in some instances, so why not here, in areas where they are so clearly not competent?

The hubris of the CO really thinking they can and should opine on copyright and its appropriate boundaries in these contexts is astonishing. My read on the embargo is them trying to give time to weigh in post-publication, because they needed to get the decision out — Maria Pallante (the Register of Copyrights) is nothing if not diligent about deadlines.

See also:

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Authors Guild v. Google – another fair use win

Authors Guild v. Google (2d Cir. 2015/10/16) just came out, and it’s another win for fair use: “The Court of Appeals concludes that the defendant’s copying is transformative within the meaning of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578-585 (1994), does not offer the public a meaningful substitute for matter protected by the plaintiffs’ copyrights, and satisfies § 107’s test for fair use.”

Commentaries and Links:

My thoughts while reading through the case. No analysis yet; just reaction.

Full Text Indexes Are Data About Books, and That’s Fair Use

  • I made this point 10 years ago:  Here’s what I wrote ten years ago about full-text as factual information about a work: “The total number of words, the presence of particular words, and the arrangement of those words in a work are, among other things, facts about the work. So are the author, the title, chapter titles, publication date, etc. Creation of an index to a work or multiple works includes gathering facts about the works. Conceptually, it’s quite distinct from the activities the Copyright Act is aimed at: copying and distributing works are clearly aimed at competitive copying, what used to be termed “piracy”.”
  • Compare with these quotes from Leval’s opinion for the Second Circuit:
    • “Even if the search function revealed 100% of the words of the copyrighted book, this would be of little substitutive value if the words were revealed in alphabetical order, or any order other than the order they follow in the original book.”  p.33Sure, a snippet search might reveal the factual answer to a question and eliminate the need for a sale (or a rental). But the facts are not protected by copyright. “Google would be entitled, without infringement of Goldberg’s copyright, to answer the student’s query about the year Roosevelt was afflicted, taking the information from Goldberg’s book. ”  (pp. 35-36)  Ooh ooh!  Data mining.
    • “the cumbersome, disjointed, and incomplete nature of the  aggregation of snippets made available through snippet view” — Leval: This phrase is so good I will use it twice! Just for emphasis.  (p.36)
    • “Furthermore, the type of loss of sale envisioned above will generally occur in relation to interests that are not protected by the copyright.” – p.35 This is a frank recognition that not all interests that COULD conceivably be covered by some copyright claim are in fact protected by copyright. I really hope this provides helpful support for examining the copyright interests underlying a claim will receive additional critical scrutiny.
  • All the stuff in about metadata & info about books is useful for librarians, scholars.
  • Carrie Russell at ALA made this point clearly:  “In Google Books, Court Finds Creating an Index Is a Fair Use”

Beautiful Language About Copyright’s Purpose

  • “Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.” slip op. p.13 — This isn’t new, but I always like to see the reminder.  Ah, Lord Ellenborough. “In the words of Lord Ellenborough, “[W]hile I shall think myself bound to secure every man in the enjoyment of his copy-right, one must not put manacles upon science.” Cary v. Kearsley, 170 Eng. Rep. 679, 681, 4 Esp. 168, 170 (1802).”  Trotting out the hoary old fan favorites!
  • I like this one: “[The crucial question: how to define the boundary limit of the original author’s exclusive rights in order to best serve the overall objectives of the copyright law to expand public learning while protecting the incentives of authors to create for the public good.” p.15

The Master of “Transformativeness” Sets the Record Straight:

Judge Leval wrote the book–well, the article–on transformative uses, which the Supreme Court then cited in Campbell v. Acuff-Rose (the “Pretty Woman” case). This effectively established the transformativeness analysis as a key gloss on fair use. Since then it has swept the courts, and proven indispensable in analyzing all sorts of uses. Judge Leval clarifies some confusions that have arisen:

  • “In other words, transformative uses tend to favor a fair use finding because a transformative use is one that communicates something new and different from the original or expands its utility, thus serving copyright’s overall objective of contributing to public knowledge.” p.17 I suspect this will be requoted:
  • “The word “transformative” cannot be taken too literally as a sufficient key to understanding the elements of fair use. It is rather a suggestive symbol for a complex thought” p.17 … corrective to the literalists who have tried to argue that “transformativeness” means the work itself has to be changed.
  • Helpful gloss on “transformative” versus “derivative works” on pp.18-19: “The statutory definition suggests that derivative works generally involve transformations in the nature of changes of form. 17 U.S.C. § 101. By contrast, copying from an original for the purpose of criticism or commentary on the original or provision of information about it, tends most clearly to satisfy Campbell’s notion of the “transformative” purpose involved in the analysis of Factor One.”
  • More substance in fn 18’s discussion of transformativeness and “complementarity” than in all of Kienitz v. Sconnie Nation. “We do not find the term “complementary” particularly helpful in explaining fair use. The term would encompass changes of form that are generally understood to produce derivative works, rather than fair uses, and, at the same time, would fail to encompass copying for purposes that are generally and properly viewed as creating fair uses. “
  • “We have no difficulty concluding that Google’s making of a digital copy of Plaintiffs’ books for the purpose of enabling a search for identification of books containing a term of interest to the searcher involves a highly transformative purpose, in the sense intended by Campbell. Our court’s exemplary discussion in HathiTrust informs our ruling. ”  p.21  No difficulty!  Exemplary!  “We have no doubt that the purpose of this copying is the sort of transformative purpose described in Campbell as strongly favoring satisfaction of the first factor.” p.22 It’s hard to see p.21 and 22, with its string cite that “We cited …” in HathiTrust, as anything other than a seriously smackdown of the Authors Guild.

Addressing the Factors:

 

The Authors Guild suggests the Second Circuit ignores the fourth factor. Not so:

  • Leval addresses the idea that commercial uses should presumptively be unfair based on earlier Supreme Court law (Sony):, noting that later Supreme Court jurisprudence “reversed on this very point”: “If that [Sony] were the extent of precedential authority on the relevance of commercial motivation, Plaintiffs’ arguments would muster impressive support.”  Ouch.  “However, while the commercial motivation of the secondary use can undoubtedly weigh against a finding of fair use in some circumstances, the Supreme Court, our court, and others have eventually recognized that the Sony dictum was enormously overstated.” Oh yeah. (p.24) … And then the discussion begins, starting with “The Supreme Court reversed on this very point” in Campbell.
  • It is not the role of the fourth factor to eliminate any possibility of a lost sale.  “But the possibility, or even the probability or certainty, of some loss of sales does not suffice to make the copy an effectively competing substitute that would tilt the weighty fourth factor in favor of the rights holder in the original. There must be a meaningful or significant effect “upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4). ” p.35 (emphasis added)
  • Reminder: Not all interests are protected by copyright. The factual content is not protected by content. “Furthermore, the type of loss of sale envisioned above will generally occur in relation to interests that are not protected by the copyright.” – p.35 I really hope this provides helpful support for examining the copyright interests underlying a claim will receive additional critical scrutiny.
  • Sure, a snippet search might reveal the factual answer to a question and eliminate the need for a sale (or a rental). But the facts are not protected by copyright. “Google would be entitled, without infringement of Goldberg’s copyright, to answer the student’s query about the year Roosevelt was afflicted, taking the information from Goldberg’s book. ”  (pp. 35-36) Data mining is protected.

Derivative Works (infringing) Versus Transformative Uses (fair)

  • “Plaintiffs next contend that, under Section 106(2), they have a derivative right in the application of search and snippet view functions to their works, and that Google has usurped their exclusive market for such derivatives. There is no merit to this argument.” (p.37, emphasis added).
  • “The extension of copyright protection beyond the copying of the work in its original form to cover also the copying of a derivative reflects a clear and logical policy choice.” p.37 – Nicely done reminder that it’s not each and every creation of something “derived from” a work.
  • The exemplary list of derivative works in 17 USC 101 “strongly implies that derivative works … ordinarily are those that re-present the protected aspects of the original work, i.e., its expressive content, converted into an altered form.”  Leval, credited with reshaping fair use law through the “transformativeness” inquiry, here takes on one of the significant critiques / confusions: What’s the difference between a transformative fair use, and an infringing derivative work?

The Guild’s “Digital Risk” Argument? Not so persuasive.

  • Judge Leval is not warmly disposed toward the plaintiffs’ “sheer speculation” about “mere speculative possibilities” that libraries might misuse their copies. Thanks, Judge Leval!  Anyone who knows librarians knows we are the furthest from “nefarious” one could imagine.

Pretty much none of the Guild’s arguments were persuasive, actually. Judge Leval is Not Impressed.

Ten months did not improve Judge Leval’s impression of the Guild’s arguments. He was openly skeptical in oral argument of many of their points, and is not exactly using his nice voice to dismiss various arguments put forward by plaintiffs:

  • “We have no difficulty concluding …” (p.21)
  • “If that were the extent of precedential authority on the relevance of commercial motivation, Plaintiffs’ arguments would muster impressive support.” (p.24)
  • “There is no merit to this argument.” (p.37)
  • “Unlike the Plaintiffs’ argument just considered based on a supposed derivative right to supply information about their books, this claim has a reasonable theoretical basis.” (p.41)
  • “Plaintiff’s effort to [rebut Google’s security showings] falls far short.” (p.43)
  • “The claim fails” (p.44)
  • “We have considered Plaintiffs’ other contentions not directly addressed in this opinion and find them without merit. ” (fn 27, p.46)
  • Appendix B

 

Various Thoughts About the Opinion (While Reading)

  • Most detailed description I have yet seen (outside of technical documents) of the snippets. I wonder how much time the judges and clerks spent poking around in Google Books. I bet, a lot!
  • Cats! Everything is better with cats.  “Snippet view adds important value to the basic transformative search function, which tells only whether and how often the searched term appears in the book. Merely knowing that a term of interest appears in a book does not necessarily tell the searcher whether she needs to obtain the book, because it does not reveal whether the term is discussed in a manner or context falling within the scope of the searcher’s interest. For example, a searcher seeking books that explore Einstein’s theories, who finds that a particular book includes 39 usages of “Einstein,” will nonetheless conclude she can skip that book if the snippets reveal that the book speaks of “Einstein” because that is the name of the author’s cat.” p.23
  • Presumption of unfairness for commercial uses, relying on Sony?  IF … then yeah, impressive.  But NOT.  “If that were the extent of precedential authority on the relevance of commercial motivation, Plaintiffs’ arguments would muster impressive support.”  Ouch.  “However, while the commercial motivation of the secondary use can undoubtedly weigh against a finding of fair use in some circumstances, the Supreme Court, our court, and others have eventually recognized that the Sony dictum was enormously overstated.” Oh yeah. (p.24) … And then the discussion begins, starting with “The Supreme Court reversed on this very point” in Campbell.
  • Leval issues a little dicta of his own in fn 20. Maybe for the published version they’ll strip the last two sentences, which are actually assertions of opinions masquerading as facts; facts that were not adequately briefed in this case.
  • Really appreciated the use of the generic female in .
  • “Even if the search function revealed 100% of the words of the copyrighted book, this would be of little substitutive value if the words were revealed in alphabetical order, or any order other than the order they follow in the original book.”  p.33
  • “But the possibility, or even the probability or certainty, of some loss of sales does not suffice to make the copy an effectively competing substitute that would tilt the weighty fourth factor in favor of the rights holder in the original. There must be a meaningful or significant effect “upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4). ” p.35
  • Frank recognition that not all interests that COULD conceivably be covered by some copyright claim are in fact protected by copyright: “Furthermore, the type of loss of sale envisioned above will generally occur in relation to interests that are not protected by the copyright.” – p.35 I really hope this provides helpful support for examining the copyright interests underlying a claim will receive additional critical scrutiny.
  • Sure, a snippet search might reveal the factual answer to a question and eliminate the need for a sale (or a rental). But the facts are not protected by copyright. “Google would be entitled, without infringement of Goldberg’s copyright, to answer the student’s query about the year Roosevelt was afflicted, taking the information from Goldberg’s book. ”  (pp. 35-36)  Ooh ooh!  Data mining.
  • “the cumbersome, disjointed, and incomplete nature of the  aggregation of snippets made available through snippet view” — Leval: This phrase is so good I will use it twice! Just for emphasis.  (p.36)
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Comments on Copyright Office Mass Digitization Proposal

I submitted comments on behalf of the Boston Library Consortium today to the Copyright Office in its “Notice of Inquiry  on Mass Digitization“, and the Copyright Office’s proposal of an Extended Collective Licensing regime.

Thanks to Terry Burton, Ryan Maloney, Charlotte Roh, and Jeremy Smith, for helpful editing; to Robert Cox (UMass Amherst) and Christian Dupont (Boston College) for supplying project details; and to Susan Stearns for leading the charge for BLC to speak out on this important issue.

Further Reading

Other commenters

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long copyright terms and evidentiary problems

Click to read PDF of decision in Rupa Marya v. Warner/Chappell

(downloaded from PACER / RECAP; issued from Central District of California 2015/09/22).

Feel free to sing “Happy Birthday” in public, because a court just said Warner wasn’t able to prove it owns the song — and if a major corporation that has been charging people (millions!) for decades to sing the song can’t actually prove it holds the rights, then I would bet money that nobody can.

The song “Happy Birthday” was originally written and published in the 1800s, and the melody is clearly in the public domain. Warner was claiming copyright only over the lyrics, but it has been making millions from licensing the simple lyrics “Happy Birthday to you … ” in a variety of movies and entertainment venues.

A documentary filmmaker elected to resist, suing for a declaratory judgment that Warner did not own the copyright.

Warner lost, because it was not able to prove that it owned the copyright. Why? Because it is really difficult to maintain records over the course of many decades.

We librarians and archivists know this already, of course; it’s why we have whole departments (hi, SCUA) dedicated to preserving and making accessible archival content. Even still, content will sometimes get “lost” or simply not be preserved in the first place.

That’s the situation Warner found themselves in: They didn’t have the original contracts, and the Copyright Office registrations were spotty. So Warner ended up having to rely on old testimony and newspaper quotes from Patty & Mildred Hill about how they composed the work — and they weren’t able to prove, ultimately, that they owned it. (Evidence geeks! Did you notice the “ancient records” exception?)

So, a fun lesson for copyright aficionados: The burden of proving you own a copyright is always on the rightsholder claiming infringement.

And a not-so-fun lesson for rightsholders who are always arguing for longer terms and fewer registration / renewal requirements: The long copyrights you seek are only as strong as the documentary proof that you actually own them.

Cheers,

Laura

eta: People have asked me if this decision will stand. I do imagine Warner is likely to appeal, but this is primarily a trial court weighing questions of evidence. The standard for an appellate review of a trial court’s evidentiary findings is very high — basically that the trial judge made obvious errors.  I haven’t reviewed the record (the materials submitted) so it’s hard to say, but the opinion doesn’t suggest a lot of room for interpretation. There’s just no evidence on some key points that Warner needed to prove — i.e., that it owns the copyright.  No evidence is hard to get around.

But Warner can afford really good lawyers, who could try to get around the issue with creative argumentation, or by doing more research and finding other documentation to prove their copyright.  So Warner has to decide: Is it worth the expense of litigating to try to hang onto a few million in royalties annually?  What are their odds of winning and losing on appeal, and is there a chance that they would establish a bad precedent if they appeal?

That’s just to appeal this part of the case.  The second part of the case is an argument that Warner has to pay back millions of royalties they unjustifiably claimed (what legal scholar Jason Mazzone has termed “copyfraud”).  This part of the case raises some additional interesting issues, and if it bolsters the doctrine of copyright misuse, I’ll be really happy.  I’m also curious to know what Warner might be liable for — how far back could the court go in looking at old revenues?  I don’t know, but now I want to find out.

 

Further reading:

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Comment on Copyright Office Visual Works Notice of Inquiry

July 23, 2015

The University Libraries at UMass Amherst filed a comment with the Copyright Office in its Notice of Inquiry on Visual Works.  Focusing on Questions 4 and 5, we sought to illuminate the ways in which images are used in teaching.

Click here to 
download the PDF file.

Other comments:

 

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Workshop on Author Agreements

Charlotte Roh and I are running a workshop today for ISSR (Institute for Social Science Research), on negotiating your author agreements.

Author Negotiations Workshop, ISSR, April 17 – 107 Bartlett Hall, 1pm – 3pm

“Negotiating Author Contracts and Agreements” with Laura Quilter, the Copyright and Information Policy Librarian at UMass Amherst

Friday, April 17, 2015 – 1:00pm to 3:00pm
107 Bartlett Hall

Scholars routinely sign away rights when they publish — rights that they need to share their own work with colleagues and students, and rights they need to publish and research new work. What rights should faculty keep, and what are the best strategies for negotiating author agreements? Laura Quilter and Charlotte Roh, both with the Scholarly Communication Dept. at the Libraries, will review the issues and bring their respective legal and publishing expertise.

Laura Quilter is the Copyright and Information Policy Librarian at the UMass Amherst Libraries. She educates the campus community on copyright and related matters, through workshops and consultations. She is an attorney (JD, UC Berkeley 2003) and librarian (MLS, University of Kentucky, 1993).

Charlotte Roh is the Scholarly Communication Resident Librarian at the University of Massachusetts Amherst, where she is manages the institutional repository, ScholarWorks@UMass Amherst. She is involved in library publishing, author consultations, and scholarly communication social justice. Her background is in academic publishing with Oxford University Press and Taylor & Francis, and she continues to freelance as an editor.

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