Authors Guild Loses Book Scanning Case Once Again

from the because-book-scanning-is-fair-use dept

The Authors Guild simply won't give up on its quixotic attack on modern technology. Even after losing both of its book scanning cases -- one against the Hathitrust (a collection of university libraries) and the other against Google -- it appealed both rulings. This morning, the ruling in the first of those cases, the Hathitrust one, came out, and it pretty much demolished the Authors Guild's arguments, finding, yet again, that book scanning like this is clearly fair use, though for slightly different reasons than the lower court. But there is plenty of useful stuff in the ruling. First, the court explored whether having a full-text searchable database of all text is fair use and found overwhelming support for that idea:

Turning to the first factor, we conclude that the creation of a full-text searchable database is a quintessentially transformative use. ... [T]he result of a word search is different in purpose, character, expression, meaning, and message from the page (and the book) from which it is drawn. Indeed, we can discern little or no resemblance between the original text and the results of the HDL full-text search.

There is no evidence that the Authors write with the purpose of enabling text searches of their books. Consequently, the full-text search function does not “supersede[] the objects [or purposes] of the original creation,” ... The HDL does not “merely repackage[] or republish[] the original[s],” ... or merely recast “an original work into a new mode of presentation,” .... Instead, by enabling full‐text search, the HDL adds to the original something new with a different purpose and a different character.

In other words, copying all the words in books to create that searchable database is transformative fair use. In fact, the court notes that it "adds a great deal more to the copyrighted works at issue than" other transformative uses that the same court has approved. As for the fact that it copies "all" of the work, and how that impacts the "amount of work" used as a fair use test, the court, thankfully, focuses on the word necessary in exploring if "more of the copyrighted work than necessary" was used -- finding that "for some purposes, it may be necessary to copy the entire copyrighted work" and thus that does not weigh against the third factor in the fair use test.

Because it was reasonably necessary for the HDL to make use of the entirety of the works in order to enable the full-text search function, we do not believe the copying was excessive.

The Authors Guild, somewhat ridiculously, argued that because the full copies are kept on multiple servers, it meant that Hathitrust had "more copies than necessary," but the court brushes that aside by pointing out the value of backups and load-balancing between multiple servers.

But the really big issue comes down to the impact on the market, the fourth factor in the fair use test, and the one that is generally considered to be the most important. The court here makes an important distinction that many people completely miss when analyzing the "impact on the market" question -- which is that the only impact that matters is the impact because the copy serves as a substitute for the original. There are lots of other ways the copy might impact that market that do not matter in this analysis.

To illustrate why this is so, consider how copyright law treats book reviews. Book reviews often contain quotations of copyrighted material to illustrate the reviewer's points and substantiate his criticisms; this is a paradigmatic fair use. And a negative book review can cause a degree of economic injury to the author by dissuading readers from purchasing copies of her book, even when the review does not serve as a substitute for the original. But, obviously, in that case, the author has no cause for complaint under Factor Four: The only market harms that count are the ones that are caused because the secondary use serves as a substitute for the original, not when the secondary use is transformative (as in quotations in a book review).

The Authors Guild tried to get around this by using a popular tactic in copyright/fair use cases: claiming that the use might preclude a future licensing opportunity for the work. Thankfully, the court flat out disagrees with this assertion:

This theory of market harm does not work under Factor Four, because the full‐text search function does not serve as a substitute for the books that are being searched... Thus, it is irrelevant that the Libraries might be willing to purchase licenses in orderto engage in this transformative use (if the use were deemed unfair). Lost licensing revenue counts under Factor Four only when the use serves as a substitute for the original and the full‐text‐search use does not.

The Authors Guild also tested out a more laughable, and less popular theory, that because someone might hack into the database and free the works, it represents a harm on the market. The court is... not impressed, noting (1) that the libraries have taken precautions against this and (2) the risk is "hypothetical" and "conjectural" calling back to the MPAA's claims of "harm" from the VCR, where the Supreme Court rejected as being merely "speculative." In other words, you have to show a real likelihood of harm and not just some fantasy land conjectures.

The court also looks at two other users of the work. First, there's the question of providing digital access to "print-disabled audiences" (e.g., the blind, who may have trouble with ordinary books). It's somewhat ridiculous that the Authors Guild seems to actively fight against making works available in other ways to those it doesn't properly serve, but that's the Authors Guild these days. Once again the court notes that this is a clear fair use. Finally, on the question of "preservation" of the works, the court punts, saying it's unclear if that's really an issue with any of the works involved in this lawsuit. Thus, it's not clear if the Authors Guild even has standing to argue that the preservation of works is copyright infringement. So it sends the argument back down to the district court on that issue.

All in all, yet another good win for fair use -- though, given the Authors Guild's previous actions, it is likely they will appeal this ruling as well. Because that's what the Authors Guild does.

Filed Under: 2nd circuit, book scanning, copyright, fair use, standing, transformative
Companies: authors guild, hathitrust

Producers Of '50 Shades' Porn Parody Argue That The Work Is In The Public Domain... But It's Not

from the that's-not-how-the-law-works dept

Back when Universal Studios sued the makers of a "porn parody" of the insanely popular book 50 Shades of Grey, we were among those who pointed out that the book itself was really originally a fan fiction work based on the Twilight books/movie series, and that it seemed a bit hypocritical to not allow other derivative works. I don't know if it was because of us calling out this fact, but the producers, Smash Pictures, are using that exact point in their defense... but then are bizarrely arguing that this makes the work in the public domain.

On information and belief, as much as 89% of the content of the allegedly copyrighted materials grew out of a multi-part series of fan fiction called Masters of the Universe based on Stephenie Myer's Twilight novels. On information and belief, this content was published online between 2009 and 2011 in various venues, including fanfiction.net and the person website of Erika Leonard. On information and belief, much or all of this material was placed in the public domain.

To which we can only say, "huh?!?" I could see an argument being made about transformative works and fair use, but there's no indication anywhere that the work is in the public domain. Just because the same author posted a very similar version online earlier has no bearing on the copyright in the work itself. It kind of makes you wonder about the lawyer that Smash Pictures has working on this case that they'd even make this argument.

Not surprisingly, Universal Studio's high priced lawyers hit back pretty quickly, calling the filing "slapped-together" and pointing out that the whole public domain argument makes no sense.

Moreover, their unsupported assertion that “as much as 89% of the allegedly copyrighted material is derived from previously published, public domain fan fiction based on Stephanie Myers’ Twilight novels” is both deliberately misleading and legally flawed. Defendants suggest that the Fifty Shades Trilogy is “derived from” works by authors other than Erika Mitchell. However, Defendants are in fact referring to an earlier version of the same story written by Ms. Mitchell, which they in their own improper deposition notice identified as “Master of the Universe.” ..... Defendants do not and cannot provide any legal authority for the proposition that an earlier version of Ms. Mitchell’s work is now in the “public domain.” They can hardly defend their infringement of Plaintiffs’ copyrights in the Fifty Shades Trilogy by claiming that it is substantially similar to Ms. Mitchell’s own earlier work.

Indeed. While I still think the lawsuit itself is silly, the public domain claim here is just wacky.

Filed Under: 50 shades of grey, copyright, derivative works, fan fiction, parody, porn, public domain, transformative, twilight
Companies: smash pictures, universal studios

Court: Book Scanning Is Obviously Fair Use

from the not-even-close dept

Well, well. I had a post all written up that I was going to publish today about how the settling of the Publishers lawsuit against Google over book scanning had one downside -- that we didn't get a full court ruling on the question of whether or not the book scanning project constituted fair use. I have to now scrap that post, because before I had a chance to finish it off, the judge in a similar/related case -- filed by the Authors Guild against HathiTrust, a consortium of universities trying to digitize their libraries -- ruled that the book scanning effort was obviously fair use. Judge Harold Baer is pretty explicit that this is absolutely fair use when you look at the details:

Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact. I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA.

In other words, when you look at this project, it should be obvious that it's advancing the public good in many ways, and thus, promoting the progress. The judge relies heavily on one of my favorite fair use cases that I often use to debunk false ideas that some people have about fair use. Those who don't know the law, often insist that there can be no fair use if either (a) the entire work is used or (b) it's used in a commercial setting. Yet, as the Bill Graham Archives v. Dorling Kindersley case showed, neither point needs to be true (even if they may weigh on how the fair use factors are considered). In this case, even if there were commercial elements and the entire works were "used" in that they were scanned, the court said that this use was obviously transformational in a useful manner.

A transformative use may be one that actually changes the original work. However, a transformative use can also be one that serves an entirely different purpose.... The use to which the works in the HDL are put is transformative because the copies serve an entirely different purpose than the original works: the purpose is superior search capabilities rather than actual access to copyrighted material. The search capabilities of the HDL have already given rise to new methods of academic inquiry such as text mining

The judge also, thankfully, noted that just because HathiTrust didn't "add anything new" to the work itself "misses the point" because each scan "serves a different function than the original work."

The judge also rejected the whole claim that the scanning "impacts the market" for the works -- which is the other key factor. While some like to pretend that any activity "impacts the market" because any use limits the possibility of a license, the court (thankfully) recognizes that such an argument is ridiculously broad and makes no sense. Furthermore, he notes that the plaintiffs have to show real harm is likely, and they completely failed to do so here.

Of course, the details in the Google book scanning suit are somewhat different -- in that the use is more clearly commercial, and a greater amount of the book is made available. However, as James Grimmelmann notes, the "near complete victory" for HathiTrust with this ruling does not bode well for the Authors Guild case against Google, and increases the likelihood of an out of court settlement.

Filed Under: book scanning, fair use, transformative
Companies: authors guild, google, hathitrust

If It Takes You 20 Years To Notice Madonna Sampled Your Songs, Perhaps It's A Transformative Use

from the just-saying dept

Ima Fish alerts us to the news that Madonna is being sued for copyright infringement over samples in the hit song "Vogue." That song, you may recall, came out in 1990. So you might think that it's a bit late to claim copyright infringement. Why did it take so long? The copyright holder, VMG Salsoul, claims that Madonna and collaborator Shep Pettibone, used samples of its song, "Chicago Bus Stop (Ooh, I Love It)(Love Break)" and then hid them in Vogue. Yes. Hid them. Here's Chicago Bus Stop: And here's Vogue: If you said the two sound nothing alike, you win. Salsoul claims that Pettibone intentionally "hid" the samples:

The portions of "Love Break, which have been copied into Vogue and all its various "mixes," remixes," videos, YouTube versions, etc. are numerous but intentionally hidden. The horn and strings in Vogue are intentionally sampled from "Love Break" throughout.

The lawsuit notes that, prior to working on Vogue with Madonna, Pettibone had, in fact, worked for Salsoul, doing remixes -- and had remixed that exact song. However, the fact that it took 22 years for Salsoul to even notice certainly raises significant questions about whether this is copyright infringement. One of the issues looked at in determining fair use, of course, is whether or not the work is transformative. You would think, if the original copyright holder didn't recognize its own sample, found in one of the most popular songs of the 90s, that's a pretty good indication that it's "transformative." It certainly isn't a substitute for the original.

Of course, the law around copyright and sampling is a complete mess, thanks to some incredibly questionable rulings, such as the Bridgeport ruling in the Sixth Circuit that claimed "get a license or do not sample." That case did not look at the fair use issues at all, and had various other problems, but these issues rarely come up in court, even in other circuits, because people (on all sides) are afraid of how it will come out. This case, for what it's worth, is not in the 6th Circuit.

There are also questions about the statute of limitations -- and that's another area where copyright law is a mess, but it certainly seems like that would not stop this particular lawsuit, based on a variety of factors.

Either way, the fact that it took so long for the copyright holder to even notice seems like it should be evidence enough to dump this lawsuit in the first place, though that's unlikely to happen.

Filed Under: copyright, fair use, infringement, madonna, salsoul, samples, statute of limitations, transformative

DMCA Exemption Process Highlights The Folly Of The DMCA

from the issuing-a-takedown-for-the-dmca-itself dept

Last week, of course, we paid a fair bit of attention to the latest round of DMCA exemptions, which come along every three years. It was surprising that the Copyright Office and the Library of Congress seem to keep moving the bar (slowly, slowly) towards a more consumer friendly approach, as compared to the early exemptions which never helped consumers at all. Still, the exemption requests that got rejected show how arbitrary the process appears at times.

A lot of folks have written up some pretty thoughtful analysis of the exemptions and the exemption process, and I wanted to highlight three of them here. The first two are similar. Peter Jaszi wrote a very detailed piece (and it's only part one!) highlighting some of the subtext of the exemptions this time around, including a subtle, but extremely important point, that the Copyright Office and the Librarian of Congress may be moving away from the problematic "four factors" fair use analysis (with the most emphasis on the fourth factor, "market impact") towards one where the key factor is whether or not a work is "transformative."

What are the most important take-aways from this passage? In my mind, there are three: First, the Copyright has subscribed fully to the proposition that in today's dominant jurisprudential approach to fair use, "transformativeness" rules. The four statutory factors remain important, of course, but the inquiry into whether and how borrowed material has been repurposed by the user tends to inflect, if not to determine, the analysis of each. And that's true across the board -- even with respect to the famed and feared factor four (market effect), where transformativeness can trump even a showing of lost licensing revenue. This enlightened understand of fair use helps not only to explain why the Recommendation came out as it did this time, but contains a strong suggestion about the kind of reasoning we can expect in future rulemakings.

This is actually a pretty big deal, as many of us have long believed that a transformative use should be a clear cut case of fair use, since it is a new creation (what copyright law is supposed to encourage). The second piece I wanted to highlight is by Larry Downes, which discusses the exact same part of the rulemaking, and how it ever so slightly moves the fair use needle, by noting that the fourth factor (the market impact) should be narrowly focused on the market for the specific work copied, not a larger product. That is, the reason the Copyright Office found jailbreaking a smartphone to be fair use was because it said the copying was only of the firmware, and the proper "market" to measure was not the overall iPhone market, but the market for the firmware alone. And, in that market, jailbreaking does not harm the market for the iPhone's firmware.

In granting the exemption, the Copyright Office rejected Apple's claim that jailbreaking harmed the market for the iPhone. The fair use analysis, the Register said, focuses on the market for the protected work, which in this case is the iPhone's firmware. Since the modifications needed to jailbreak the firmware don't harm the market for the firmware itself, the infringing use is fair and legally excused. It doesn't matter, in other words, that jailbreaking has a potentially big commercial impact on the iPhone service.

That distinction is the notable feature of this decision in terms of copyright law. Courts, and now the Copyright Office, are well aware that technology companies try to leverage the monopoly rights granted by copyright to create legal monopolies on uses of their products or services. In essence, they build technical controls into the copyrighted work that limits who and how the product or service can be used, than claim their intentional incompatibilities are protected by law.

While somewhat different in approach, it feels like Downes and Jaszi are each seeing the same basic thing -- the Copyright Office and the Librarian of Congress (along with a series of recent court rulings) have realized that the pure four factor test hasn't always been useful or applied properly. This does move the needle ever so slightly in a much better direction.

And, for that, we should be happy.

That said, it is worth noting that both of Jaszi and Downes' write-ups have to pick out these details through the legal minutiae. Taking a big step back to look at the forest, rather than counting the rings on a single downed tree, is Tom Lee, who wrote up an excellent analysis for The American Prospect, pointing out that the very fact that we have this slow and unwieldy exemption rule-making process should actually demonstrate the massive problems of the DMCA itself. Specifically, we should all be quite troubled that the government effectively gets to weigh in every three years on how you can use electronic equipment that you purchased:

It might seem strange for the government to attempt to regulate consumers' use of their electronics, then turn a blind eye toward violations. For that matter, the exemptions themselves might seem a bit arbitrary. Isn't it a little silly to permit jailbreaking an iPhone but not an iPod? Might any of the 25 other suggested exemptions have had merit? Doesn't this all reek of selective enforcement (albeit executed at a glacial pace)? And isn't it a bit ridiculous to rely on the librarian of Congress to mediate the tensions between rights holders, device manufacturers, and the IP-buying public?

The answer to all of these questions is yes. But it's worse than that. Proscribing circumvention technologies is a bad idea. This is true even if we immediately carve out reprieves from that restriction, and regardless of whether those reprieves are narrow in principle or wide in practice.

It's true that asking people not to violate copyright doesn't work very well, so it's understandable that rights holders invented DRM. But DRM doesn't work very well, either. Now we've invented a law to force people to pretend that DRM works. That law doesn't work, either, of course -- and it couldn't. The exemptions are a recognition of the fact that if the DMCA functioned perfectly, it would be intolerable. DRM is a lock that can be opened by software, and software is little more than an idea -- certainly the circumvention techniques, the substance of that software, are nothing more than ideas.

While there is the general progression (at a snail's pace) of smarter implementation of fair use, Lee's point is a really important one that gets lost in the shuffle. The very fact that we need a triennial exemption rule-making suggests that the law is ridiculously broken. It is, as Lee notes, a sort of charade. We all are supposed to pretend DRM works, and when it doesn't, we start playing by different rules. And since those rules sometimes get confusing, we need a referee to step in and issue specific exemptions? It's a game of regulatory theater, where people pretend that copyright law actually does something (i.e., protect content) that it does not do.

Filed Under: dmca, exemptions, fair use, transformative

Artist Sues Photographer For Transformative Photo Of Public Artwork, Even Though Photographer Took Down The Photo

from the step-on-this dept

A whole bunch of you sent over yet another story of copyright law gone wrong. An artist named Jack Mackie, who created a piece of artwork made up of bronze shoeprints buried in a sidewalk in Seattle (I'd post a picture, but we'd probably get sued) apparently got upset that a photographer took some photos of it. Remember, it's on a sidewalk. In a public place. And it's a piece of artwork, so people are going to take photos. In this case, the photographer, Mike Hipple, took a photo that was a clear transformative work, rather than a straight copy. The photo, which you can see here, featured someone's feet standing on the art installation -- something you would imagine makes a lot of sense as a commentary on the artwork (since the work itself is of of shoeprints). Cool, right? Not according to Mackie. Hipple posted the photo to a stock photo website -- which does no damage whatsoever to Mackie's work -- and should only call more attention to it. No matter, Mackie sent a legal nastygram. But here's the thing: Hipple complied. He took down the photo and erased it. He no longer has a copy of it. So he complied with the nastygram.

And Mackie sued anyway. He actually waited a year, and then sued, even though the photo had been gone since just a few days after the nastygram was sent. It seems like this should be a clear transformative use. It wasn't just a photo of the artwork, but added a different element that acted as a bit of commentary on the work itself. It's hard to see how this would have even the slightest negative impact on the actual work or the artist. This is just the sort of ridiculous situation that arises when people are told that they "own" something that cannot be owned.

Filed Under: artwork, copyright, jack mackie, mike hipple, photography, transformative

Yes, Artists Build On The Works Of Others... So Why Is It Sometimes Infringement?

from the it's-called-inspiration dept

Following on our story the other day about copyright questions concerning the "appropriated art" that became the iconic Obama campaign poster, the Wall Street Journal has an interesting article exploring the fine line between derivative works and transformative works in the art world. As you probably know, derivative works (e.g., making a movie out of a book) are considered copyright infringement, but transformative works are not.

Of course, how you define a transformative work is a big open question. The article doesn't discuss it here, but for some unexplained reason, courts have mostly determined that there is no such thing as transformative works in music -- so sampling is mostly seen as infringement. The article, instead, focuses on visual artwork, though, where courts have ruled in different ways, depending on the artwork -- leading many to consider this to be a "gray area."

It probably won't surprise many, but to me the whole concept seems silly. The history of creativity has always included the concept of taking the ideas of others (those who influenced you) and building on them. That's the history of storytelling. It's the history of joke telling. It's the history of writing. It's the history of music. It's the way art is created. And that's a good thing. Art never springs entirely from 100% original thought. It's an amalgamation of what else is out there -- put together in a new way. What's even more ridiculous is that, in almost every one of these cases, it's difficult to see how the "original" complaining artist is even remotely "harmed" by the follow-on artists. If anything, it's likely that the later art would only draw more attention to the original artist. It's just that we've built up this ridiculous culture of "ownership" of ideas, where people think that someone else doing something creative by building upon my work is somehow "stealing." It's a shame, and it's incredibly damaging to our cultural heritage -- which, of course, is exactly the opposite of what copyright law is supposed to be about.

Filed Under: appropriation, art, copyright, derivative, inspiration, transformative