Appeals Court Rejects Labels' Collusion Scheme To Try To Force Pandora To Pay Higher Rates

from the nice-try,-but-no dept

Last year, we wrote about a somewhat crazy lawsuit involving ASCAP, Pandora, and various record labels that was officially about trying to force Pandora into paying higher rates. There were a lot of moving parts in the case, but a key point was that various publishers (owned by the major record labels) pulled a neat little trick in which ASCAP allowed the publishers to "partially remove" their catalog, such that ASCAP could still license the catalog to traditional organizations, but not to "new media" companies (i.e., Pandora). Then, the publishers tried to "negotiate" independently with Pandora, and by "negotiate" I mean "refuse to tell Pandora what songs were no longer covered by ASCAP and then threaten a massive lawsuit if Pandora accidentally streamed any of those songs." Under such pressure, Pandora caved and agreed to pay much higher rates to those publishers, and ASCAP then spun around and tried to argue that those new rates were much more representative of "market rates" leaving out how the whole thing was planned together as a group as a form of collusion. Thankfully, the district court recognized what was going on, and mostly sided with Pandora, raising the rates slightly, but nowhere near as much as ASCAP and the publishers sought.

ASCAP and the publishers appealed, but the appeals court has now easily sided with Pandora, seeing no problems with the lower court's rulings. The ruling [pdf] doesn't get into the whole collusion bit, but does note that allowing publishers to do this "partial removal" trick quite clearly violated the letter and spirit of the ongoing "consent decree" that ASCAP has with the Justice Department, to guarantee that it's not violating antitrust law. The consent decree says that if someone wants to license music that ASCAP has the right to license, ASCAP has to provide that license. Since it makes no distinction among different kinds of services, ASCAP can't just make up that part:

Appellants contend that publishers may withdraw from ASCAP its right to license their works to certain new media music users (including Pandora) while continuing to license the same works to ASCAP for licensing to other users. We agree with the district court’s determination that the plain language of the consent decree unambiguously precludes ASCAP from accepting such partial withdrawals. The decree’s definition of “ASCAP repertory” and other provisions of the decree establish that ASCAP has essentially equivalent rights across all of the works licensed to it. The licensing of works through ASCAP is offered to publishers on a take‐it‐or‐leave‐it basis. As ASCAP is required to license its entire repertory to all eligible users, publishers may not license works to ASCAP for licensing to some eligible users but not others.

Basically, the consent decree is quite clear: if you have the right to license the music, you have to license it to all-comers, and you can't make up artificial classifications that you won't license it to. As the ruling notes, it seems what ASCAP and the publishers are really trying to do is to rewrite the consent decree on the fly and have the court system sign off on it. The court will not do that:

Appellants would have us rewrite the decree so that it speaks in terms of the right to license the particular subset of public performance rights being sought by a specific music user. This reading is foreclosed by the plain language of the decree, rendering Appellants’ interpretation unreasonable as a matter of law

Of course, ASCAP, the publishers and the labels have been lobbying quite hard to get the DOJ and/or Congress to throw out the consent decree altogether, so that they can go back to colluding in this matter to try to jack up rates. Expect those efforts to expand even more given this ruling.

Finally, the court also says that the new rates set by the lower court are perfectly fine and it sees no reason to change those rates, no matter how much whining ASCAP might do about the new rates.

Having reviewed 1 the record and the district court’s detailed examination thereof, we conclude that the district court did not commit clear error in its evaluation of the evidence or in its ultimate determination that a 1.85% rate was reasonable for the duration of the Pandora‐ASCAP license. We likewise conclude that the district court’s legal determinations underlying that ultimate conclusion— including its rejection of various alternative benchmarks proffered by ASCAP—were sound.

Basically: just because you say the rates are unfair doesn't make them unfair. Either way, given the way ASCAP and the publishers have whined and complained about this entire process, expect that to reach a new level of ridiculousness in the near future, with a bunch of bogus talk about how absolutely unfair life is for them, even as they rake in tons of money.

Filed Under: compulsory rates, consent decree, licensing, music, partial withdrawal, publishers, rates
Companies: ascap, emi, pandora, sony music publishing, universal music

DailyDirt: Peer Reviewed Publications Are Everywhere

from the urls-we-dig-up dept

Peer reviewed publications have been under some additional scrutiny lately, as some of the practices of peer review aren't quite as honest and reliable as they once might have been. Fortunately, there are some solutions that create alternatives to the peer review process that involve opening up the content for more reviewers to study, question and verify results. Having reliable information more widely available to the public sounds like it can't go wrong, but it's not easy to build a reputation on a small database of preprints. However, as more and more significant results come from unlikely people, the process of peer review will need to adapt and account for unexpected authors.

• Academic journals are a multi-billion-dollar industry with a handful of dominant publishers. These paywalled systems could be disrupted by more open publishing schemes used by organizations such as PLOS, arxiv.org and academia.edu -- if the next generation of peer review turns out to be effective and economical. [url]
• PubPeer creates an anonymous forum for criticizing technical papers -- offering a kind of alternative to the traditional peer review process to help weed out unreliable publications. However, the anonymous nature of PubPeer may be threatened by a court order to reveal a commenter's identity over alleged defamation. [url]
• A scientific publication that's peer reviewed by kids (age 8-16yo) is getting children into the game of science early. Frontiers for Young Minds isn't exactly the cutting edge of science, but it's free for submissions and has no paywall. The business model probably doesn't scale too well, but nobody is likely getting tenure based on papers published before they could legally drive. [url]

After you've finished checking out those links, if you have some spare change (or more) and would like to support Techdirt, take a look at our Daily Deals for cool gadgets and other awesome stuff.

Filed Under: academia.edu, academic journals, arxiv.org, frontiers for young minds, media, paywall, peer review, plos, preprints, publications, publishers, pubpeer, science

Boycott Called Against Spanish Newspaper Publishers' Association Titles In Protest Of New Copyright Law

from the defending-the-glue dept

Last week we reported on the Spanish newspaper publishers' association (AEDE) begging the Spanish government and EU to stop Google News shutting down as it realizes how much its members depend on Google for traffic to newspaper sites. To bring home just how stupid the new Spanish copyright law is, the online site Hipertextual.com is now calling for a boycott of all titles owned by AEDE (original in Spanish):

Are you too against the new copyright law and the AEDE tax on media and aggregators? The first step you can take right now is to begin a boycott of AEDE titles: don't visit them, don't link to them, don't give them traffic or relevance.

The Hipertextual.com article also recommends installing add-ons for the Chrome and Firefox browsers that automatically block all links to AEDE titles, and provides lists of international, national and regional alternatives.

Even if it is well supported, the boycott on its own probably wouldn't have much effect, but combined with the devastating loss of traffic that Google News closing will cause, it will certainly add to the pressure on the AEDE publishers. Just as importantly, it will also show that whatever the Spanish government may think, the country's new copyright law is not just about squeezing money from a rich US company, but also represents a serious threat to the basic glue that holds the Web together -- the hypertext link.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: boycott, google news, publishers, spain
Companies: aede

French Publishers Think They Can Fix Online Advertising By Suing The Company Behind AdBlockPlus

from the 'fix'-as-in-'burn-all-bridges-in-all-directions' dept

The debate over ad blockers continues, all without gaining much ground in terms of coherence. Most people still find ads annoying, something that plays hell with websites' attempts to make money by utilizing them. Ad blockers kick these intrusive nuisances to the curb (and block questionable scripts), prompting website owners to make regrettable decisions like blocking users of ad blockers or banning any discussion of ad blocking software, etc. Responses like these seem to emanate from the brainstem rather than from careful consideration, and generally do more to alienate readers than screen-eating splash ads and flash-heavy sidebars that slow systems to a crawl.

So, who's going to pay for all of this "free" content? That's the question on many site owners' minds. Subscriptions, paywalls, data mining, patronage, physical goods tie-ins… all of these are options. Not a single one of these is perfect and none of them have enough pull of their own to completely displace ad revenue.

It's an industry that's still ripe for disruption, just as much as the online publishing field is. Advancements have been made, but there's still a long road ahead before any sort of consistently profitable equilibrium is achieved. But why wait? And, by all means, why innovate? Members of the French publishing industry are now doing what so many industries have done before -- attempting to sue their way to success. (via slashdot)

On grounds that it represents a major economic threat to their business, two groups of French publishers are considering a lawsuit against AdBlockPlus creator Eyeo GmbH. (Les Echos, broke the news in this story, in French).

Plaintiffs are said to be the GESTE and the French Internet Advertising Bureau. The first is known for its aggressive stance against Google via its contribution to the Open Internet Project. (To be clear, GESTE said they were at a “legal consulting stage”, no formal complaint has been filed yet.) By his actions, the second plaintiff, the French branch of the Internet Advertising Bureau is in fact acknowledging its failure to tame the excesses of the digital advertising market.

As Frederic Filloux notes, this proposed litigation will be nothing more than two failures attempting to co-write "History: A Biography." Even if these two manage to take AdBlockPlus down, they'll just find themselves facing people who still don't want to see ads and many, many developers willing to fill the void. And once people are aware that these two plaintiffs are willing to force them to view ads, they'll be twice as happy to actively make things worse for the publishers. There will also be collateral damage: people employed by both who don't see eye-to-eye with their employers but whose employment will be adversely affected by the backlash.

Not that Eyeo GmbH is completely blameless. While the product works as advertised, the philosophy of the company isn't exactly altruistic. The company has its own idea of what is or isn't an "acceptable ad," but the quantifying factors verge on ethereal.

1. Acceptable Ads are not annoying.
2. Acceptable Ads do not disrupt or distort the page content we’re trying to read.
3. Acceptable Ads are transparent with us about being an ad.
4. Acceptable Ads are effective without shouting at us.
5. Acceptable Ads are appropriate to the site that we are on.

But who decides whether an ad is "acceptable" or not (and thus qualified for a spot on the software's whitelist)? Well, the company does. And since the company is interested in moving copies of AdBlockPlus, it's hardly an unbiased view. It admits that it receives fees from some companies in return for whitelisting, which it also extends to all "small- to medium-sized websites." It promises not to sell whitelist spots, but it also withholds information about how it determines which sites are eligible for free whitelisting, or which advertisers it takes money from.

Filloux points out the pitfall this situation presents.

[A] single private entity cannot decide what is acceptable or not for an entire sector. Especially in such an opaque fashion.

Eyeo GmbH is filling a vacuum created by the incompetence and sloppiness of the advertising community’s, namely creative agencies, media buyers and organizations that are supposed to coordinate the whole ecosystem (such as the Internet Advertising Bureau.)

It's an industry that's singularly an anti-industry force. AdBlockPlus's success is tied to the failures of the ad industry. It seems willing to play nice with certain advertisers, but these qualifications are withheld from both the industries it affects and the users who depend on the product.

But the "solution" these publishers are proposing is no solution. What needs to be fixed will remain unaddressed as long as simply suing an undesirable entity out of circulation remains a possibility. This isn't just a French thing, either. We see it here in the US as well -- the use of government entities (legislative, judicial) instead of actual innovation when faced with declining revenue. The fact that it rarely, if ever, works is lost on the incumbents. (Remember that time when the RIAA sued LimeWire out of existence and piracy ended?) AdBlockPlus may have its issues, but forcing it out of the market won't fix the online advertising. All it will do is make it worse.

Filed Under: adblockplus, advertising, france, lawsuits, publishers
Companies: eyeo gmbh, french internet advertising bureau, geste

How Publishers & Copyright Gave Amazon The Very Power That Publishers Now Hate

from the which-was-totally-predictable dept

We've been meaning to weigh in some more on the whole Amazon/Hachette battle, because lot of misinformation has been spewed around (including by Paul Krugman). Unfortunately there have just been too many other things to cover and we haven't had the time to do a more thorough piece. However, Tim Lee, over at Vox, has a good short piece detailing how many of the publishers' problems are really because of copyright law and the stupid DRM that the publishers themselves demanded -- and which now gives Amazon its power over them in the market. The issue? The DMCA and the fact that Section 1201 makes it illegal to circumvent any DRM (even if for non-infringing purposes). End result, all those books on Amazon are stuck on Amazon.

Amazon has taken advantage of the DMCA too. Kindle books come copy-protected so that only Amazon-approved software can read it without breaking the law. Of course, software to convert it to other formats exists, but it's illegal and accordingly isn't very convenient or user-friendly.

And that creates a huge barrier to entry. People who want to create new e-reader apps or devices can't do what MP3 startups did in the 1990s and offer to automatically import your existing e-books from Kindle, iTunes, or other major platforms. Instead, they have to start from scratch, creating their own e-book store and convincing all the major publishers to sign up for it.

Even more daunting, they have to convince customers to toss their existing e-book libraries and buy new copies of their e-books on the new platform — or split their time between multiple platforms.

The thing is, none of this is even remotely surprising. Almost six years ago, we warned book publishers of this exact scenario. This wasn't hard to predict, because the same damn thing had happened in music, before Apple finally dumped its music DRM. But no one listens to us.

And yet, you can bet that if changing the anti-circumvention provisions of the DMCA is up for discussion during the next effort at copyright reform, the book publishers and their lobbyists will actually be among the most vocal about keeping it the way it is. They still don't seem to recognize how their own demands for DRM created the situation they're so worried about today with Amazon having more power than the publishers like.

Filed Under: anti-circumvention, copyright, dmca, dmca 1201, drm, ebooks, lock-in, publishers
Companies: amazon

European Commission Consultation On Copyright Reveals Chasm Between Views Of Public And Publishers

from the now-they-can't-deny-it,-but-will-they-act-on-it? dept

In January of this year, we urged Techdirt readers to express their views on copyright by participating in the European Commission's consultation on the subject. It seems that many of you did, judging by the final numbers, which have just been published by the Commission (pdf):

The public consultation generated broad interest with more than 9,500 replies to the consultation document and a total of more than 11,000 messages, including questions and comments, sent to the Commission's dedicated email address. A number of initiatives were also launched by organized stakeholders that nurtured the debate around the public consultation and drew attention to it.

Some 5600 response came from the public, 2400 from authors/performers, and a thousand or so from companies. The European Commission has published an analysis of the comments on a question-by-question basis. This makes it slightly hard to get an overall sense of what the various sectors are saying, but fortunately Leonhard Dobusch has tackled that problem in an illuminating post on the Governance Across Borders blog:

I tried to have a look at the bigger picture here: what do we learn about the state of copyright at large? And what overall direction should copyright reform take?

Here's how he addressed those questions:

What I have done is to check for each of the 24 issue sections whether one of the respective stakeholder groups sees a need for copyright reform or is content with the current copyright system (for details check out a public Google spreadsheet with original quotes). The results are not entirely surprising and very clear: we have a strong divide among copyright stakeholders with end users and institutional users (e.g. libraries, archives, universities) strongly in favor of copyright reform and authors, collective management organizations, publishers and producers in favor of the current copyright system.

He then turned that information into two striking graphics:

For those that can't view those images, they show the public massively in favor of reforming just about every aspect of copyright, and publishers massively against doing so. As Dobusch writes:

the two charts above indicate that current EU copyright is very unbalanced. When one side is completely satisfied with the status quo and the other is very unhappy then this is not a balanced situation. Given that a good compromise should leave everybody equally unhappy, the results of the consultation also show the direction for copyright reform efforts of the new EU Commission: re-balancing copyright requires at least some reform as demanded by end users and institutional users, most importantly a more harmonized and flexible system of exceptions and limitations.

This is what Techdirt and many others have been urging for years. What's important here is that with this significant response to the consultation, it is now impossible for the European Commission to ignore the chasm between the views of the public, hugely unhappy about the current imbalance of copyright, and those of the publishers, desperately trying to keep things as unfair and as profitable as they are currently. Whether the Commission does anything about it is quite another matter.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: copyright, copyright reform, eu, eu commission, europe, public, public interest, publishers

One-Percent Authors Want To End Destructive Conflict, Bring Order to the Galaxy

from the picking-sides dept

Just when I thought Amazon Derangement Syndrome couldn't get any more acute, I woke up to this "letter to our readers" spearheaded by bestselling writer Douglas Preston and signed by 69 authors. One day, historians and psychologists might manage to explain how various authors came to fear and revile a company that has sold more books than anyone in history; that pays authors up to nearly six times the royalties of the New York “Big Five” lockstep rate; that single-handedly created the ebook and self-publishing markets; that offers more choice and better prices to more readers than anyone ever has before; and that consistently ranks as one of the world’s most admired companies. But for now, let's see if we can figure it out ourselves...

A letter to our readers:

Amazon is involved in a commercial dispute with the book publisher Hachette, which owns Little Brown, Grand Central Publishing, and other familiar imprints.

Unmentioned is that Hachette is part of the Lagardère Group, a French conglomerate with sales of something like ten billion dollars a year. Not exactly David to Amazon's Goliath.

These sorts of disputes happen all the time between companies and they are usually resolved in a corporate back room.

Indeed, Amazon and Hachette are just a retailer and a supplier having trouble coming to terms. Something that couldn’t be more common. Unless, unless...

But in this case, Amazon has done something unusual. It has directly targeted Hachette’s authors in an effort to force their publisher to agree to its terms.

This is misleading. Not only has Amazon not "targeted Hachette’s authors," it has offered to compensate them for any damage they suffer by virtue of their publisher's dispute with Amazon. Hachette has refused that offer. Do the authors of this letter not know about Amazon’s offer to help compensate Hachette's authors, and Hachette's refusal? Why don't they mention it?

For the past month, Amazon has been:

--Boycotting Hachette authors, refusing to accept pre-orders on Hachette’s authors’ books, claiming they are “unavailable.”

Amazon is not boycotting anyone. All books by all Hachette authors are available in the Amazon store. In the face of this, to claim there’s a “boycott” is either ignorance or propaganda.

Not including a preorder button for a tiny percentage of titles isn’t a boycott. It’s a shot across the bow, and a fairly mild one compared to what an actual boycott of all Hachette titles would look like. As for “unavailable,” if a book isn’t published yet and you can’t preorder it, how else should its status be described?

--Refusing to discount the prices of many of Hachette’s authors’ books.

The prices of Hachette’s books are set by Hachette. If the authors of this letter think those prices are too high — and apparently, they do — it’s bizarre that they’re blaming Amazon.

--Slowing the delivery of thousands of Hachette’s authors’ books to Amazon customers, indicating that delivery will take as long as several weeks on most titles.

When a retailer and supplier can’t come to terms — something the letter’s writers acknowledge happens “all the time” — what is the retailer supposed to tell its customers?

As writers—some but not all published by Hachette—we feel strongly that no bookseller should block the sale of books or otherwise prevent or discourage customers from ordering or receiving the books they want.

This is a bit rich. My own Amazon-published titles are boycotted by Barnes & Noble and by many indie bookstores. Tens of thousands of Indie-published authors face the same widespread boycott. An actual boycott, as in, outright refusal to stock books written by these authors — not because of price or other contractual terms, but simply because the retailers in question don't like these authors' way of publishing. Yet this is the first I've heard any of the letter's authors express their strong feelings on bookstores preventing or discouraging customers from ordering or receiving the books they want.

What's really weird, when you stop and think about it, is that if customers being able to read the books they want is really an important value for the letter’s authors, you would think they would love Amazon’s business model and find Hachette's suspect. After all, Hachette is a gatekeeper — their whole business model is predicated on excluding from readers probably 99.99% of manuscripts. Amazon’s model is to let all authors publish and to trust readers make up their own minds. If customer choice is the real value in play here, you can’t coherently support Hachette and decry Amazon.

Unless, of course, all that happy talk about customer choice is a canard.

It is not right for Amazon to single out a group of authors, who are not involved in the dispute, for selective retaliation.

It wouldn't be right if Amazon were doing it. As explained above, they're not. What I'd like to know is why the letter's authors apparently feel it is right when Barnes & Noble and other booksellers really do single out authors for retaliation? Why are they upset about a fictional Amazon boycott, and sanguine about a real Barnes & Noble one?

Moreover, by inconveniencing and misleading its own customers with unfair pricing and delayed delivery, Amazon is contradicting its own written promise to be “Earth's most customer-centric company.”

I agree that it's an inconvenience for customers when a retailer and supplier can't come to terms. But it happens, and it's not that hard to understand why a retailer might feel compelled to hold the line in one discrete area to prevent its supplier from forcing it to charge higher prices across the board. Think of it as a "lesser of two evils" dynamic a retailer might face with regard to what's best for its customers. Regardless, I'm not sure why the letter's authors reflexively lay blame for the dispute and its consequences at Amazon's feet while reflexively absolving (and refusing even to question) Hachette. And I don't see Amazon doing anything here that I would characterize as "misleading."

All of us supported Amazon from when it was a struggling start-up. We cheered Amazon on. Our books started Amazon on the road to selling everything and becoming one of the world’s largest corporations. We have made Amazon many millions of dollars and over the years have contributed so much, free of charge, to the company by way of cooperation, joint promotions, reviews and blogs. This is no way to treat a business partner.

Under the circumstances, that last line sounds like projection.

Nor is it the right way to treat your friends.

I'm not sure what this means. What does friendship have to do with a retailer and supplier negotiating terms? Are they saying that in a contract dispute, you can't allow your friends to become collateral damage? Okay, but why is that message directed at Amazon and not at Hachette?

I know, I know... they really just want to end this destructive conflict, and bring order to the galaxy... Bear in mind that no one outside of Amazon and Hachette even knows for sure the details of their discussions. There's been a lot of informed speculation in the blogosphere, and it seems likely that the essence of the dispute is that Hachette wants to return to "agency" pricing, which enables Hachette to keep the prices of ebooks artificially high, while Amazon wants the flexibility to charge less. But in the face of no knowledge, or of the likelihood that Hachette is trying to force Amazon to charge higher prices, the knee-jerk anti-Amazon response isn't easy to understand.

Without taking sides on the contractual dispute between Hachette and Amazon, we encourage Amazon in the strongest possible terms to stop harming the livelihood of the authors on whom it has built its business.

Well, that made me smile. I’m glad no one is taking sides! In fact, reading their letter, I still have no idea which side the letter’s authors favor… :)

But seriously, I have to ask… do these people really not recognize that they're taking sides? Not that I think taking sides is wrong; personally, I think Hachette is a joke and I side with Amazon because I favor lower prices, higher royalties, and more choice. But to write a letter like this and claim you're not taking sides... are they disingenuous? Or are they so psychologically wedded to legacy publishing that they think taking Hachette's side is just being neutral?

For some reason it reminds me of the joke: "If we're not supposed to eat animals, why are they made of meat?"

But anyway... if the value in play here is that a company should "stop harming the livelihood of the authors on whom it has built its business," I'm gobsmacked that these people aren't demanding more from Hachette. Hachette pays its authors 12.5% in digital royalties. It keeps the lion's share of increased ebook profits for itself. It demands life-of-copyright (that is, forever) terms of license. It inhibits its authors' ability to publish other works by insisting on draconian anti-competition clauses. It pays its authors only twice a year. It has innovated precisely nothing, ever, preferring to collude to fix prices with Apple and the other members of the New York "Big Five." That's Hachette's business record... and these authors, who purport to care so much about a company harming the livelihood of authors, have nothing to say about it?

I guess that’s what they mean by "not taking sides."

None of us, neither readers nor authors, benefit when books are taken hostage.

Then why aren’t they telling Hachette to set their books free? End agency pricing! Let retailers discount! Don't collude! Free those books!

(We’re not alone in our plea: the opinion pages of both the New York Times and the Wall Street Journal, which rarely agree on anything, have roundly condemned Amazon’s corporate behavior.)

I always mistrust this kind of assertion in the absence of links or other citations — especially coming from a group that has already made as many misleading claims as this one. But let's assume their claim about overlapping op-eds is true. The New York Times and Wall Street Journal "rarely agree on anything”? This is possibly the most thoughtless (or misleading) claim the letter's authors have made yet. I know it's a bit discursive, but here’s Noam Chomsky on propaganda:

"One of the ways you control what people think is by creating the illusion that there's a debate going on, but making sure that that debate stays within very narrow margins. Namely, you have to make sure that both sides in the debate accept certain assumptions, and those assumptions turn out to be the propaganda system. As long as everyone accepts the propaganda system, then you can have a debate."

Like the Democratic and Republican branches of America's single political party, the New York Times and Wall Street Journal have far, far more in common than they do in dispute. Suggesting their concurrence on a topic is meaningful is exactly like suggesting that because majorities of Democrats and of Republicans voted to invade Iraq, the war was a good idea.

We call on Amazon to resolve its dispute with Hachette without hurting authors and without blocking or otherwise delaying the sale of books to its customers.

I know I’m repeating myself, but... it's fascinating that these people — who are of course not taking sides! — are calling on Amazon this way and saying nothing at all to Hachette. You'd think Hachette is a wholly pure and innocent child, lacking any autonomy at all in this business dispute.

We respectfully ask you, our loyal readers, to email Jeff Bezos, c.e.o and founder of Amazon, at jeff@amazon.com, and tell him what you think. He says he genuinely welcomes hearing from his customers and claims to read all emails from this account. We hope that, writers and readers together, we will be able to change his mind.

It’s sad. Imagine the good that might be accomplished if mega-bestselling authors like Child, Patterson, and Turow were even fractionally more inclined to leverage their fame and fortune in calling attention to real injustices in publishing. The pittance the New York "Big Five" (the cartel is right there in the moniker) pay their authors. The industrial-level scamming of newbie writers by Penguin Random House-owned Author Solutions. Harlequin setting up subsidiaries solely to screw writers out of their royalties.

Instead, these one-percenters consistently ignore the tremendous good Amazon has done for all authors, and allow misguided self-interest to distort their perceptions and their arguments. They take full-page ads in the New York Times, they give interviews with an adoring press, they publish letters like this one… all to perpetuate a publishing system that is designed to create a one-percent class of winners and to exclude everyone else. You want to know something else the New York Times and Wall Street Journal are going to agree on? They're going to offer a ton of coverage to this "letter to readers" because it was signed by a few superstars. And they're going to ignore a competing petition that in the few hours since it went live is already closing in on a thousand signatures, many of them submitted by the mom-n-pop, small-business, indie authors Amazon has enabled to earn a living from their writing for the first time ever. This imbalance is the way establishments work, and the authors of the "letter to our readers" are nothing if not part of the publishing establishment they seek to perpetuate.

It's all right. The establishment has the names. Freedom and choice have the numbers. And the numbers always win in the end.

Oh, and that petition? You can add your name here.

P.S. Some further suggested reading on this topic.

If you love books then you should be rooting for Amazon, not Hachette or the Big Five

Authors Behaving Badly and Authors Who Aren’t

Amazon Finally Defends Itself Against Accusations That It's A Bully Pushing Around Hachette

Filed Under: authors, e-commerce, publishers
Companies: amazon, hachette

EU Publishers Present Their 'Vision' For Copyright: A Permission-Based Internet Where Licensing Is Required For Everything

from the thanks,-but-no-thanks dept

For too many years, the copyright industries fought hard against the changes being wrought by the rise of the Internet and the epochal shift from analog to digital. Somewhat belatedly, most of those working in these sectors have finally accepted that this is not a passing phase, but a new world that requires new thinking in their businesses, as in many other spheres. A recent attempt to codify that thinking can be found in a publication from the European Publishers Council (EPC). "Copyright Enabled on the Network" (pdf) -- subtitled "From vision to reality: Copyright, technology and practical solutions enabling the media & publishing ecosystem" -- that is refreshingly honest about the group's aims:

Since 1991, Members [of the EPC] have worked to review the impact of proposed European legislation on the press, and then express an opinion to legislators, politicians and opinion-formers with a view to influencing the content of final regulations. The objective has always been to encourage good law-making for the media industry.

The new report is part of that, and is equally frank about what lies at the heart of the EPC's vision -- licensing:

A thread which runs through this paper is the proliferation of 'direct to user’ licensing by publishers and other rights owners. Powered by ubiquitous data standards, to identify works and those who have rights in those works, licensing will continue to innovate exponentially so that eventually the cost of serving a licence is close to zero. The role of technology is to make this process seamless and effective from the user's perspective, whether that user is the end consumer or another party in the digital content supply chain.

Seamless licensing will be made possible through the roll-out of ubiquitous Digital Rights Statements (DRS) containing information about identity, rights and -- you guessed it -- licenses:

The key point about a DRS is that once it exists, it can be searched, read and actioned by any other machine connected to the Internet. And once the DRS is indexed by a search engine, through the machine readable IDs contained in the DRS it will always be possible to find the person or entity who owns or administers the rights and the rights associated with it. From there, it will be possible to link to the service from which the rights can be obtained and the content accessed and, if applicable, paid for.

Furthermore, this infrastructure is well suited to a world of 'mash-ups' where one work will incorporate parts or elements of other works, because the relevant IDs can identify the whole of a work or granular elements of it.

As that makes clear, the EPS vision includes being able to pin down every single "granular" part of a mash-up, so that the rights can be checked and -- of course -- licensed. Call it the NSA approach to copyright: total control through total surveillance. The paper helpfully explores how that would work out in various specific situations encountered today. For example, the European publishers want to be able to use licensing to restrict access even to material on the open Internet:

Legal clarification is needed about the relationship between hyperlinks and licence terms on the websites (or other platforms) to which they link. It must be clear that rights owners may by their licence terms to "restrict" access to content on an "open website" to a specific category of "the public" (e.g. users who visit the site directly), whether or not accompanied by technical protection measures.

So licenses would be able to forbid the use of hyperlinks to jump directly to pages, even though the latter were not locked down by DRM. The EPC is also worried about an "overbroad" interpretation of a general right to browse copyright material without needing an explicit license:

Whilst the general proposition that Internet browsing does not require a licence is reasonable, there remains a risk that an overbroad interpretation could mean that activities which ought properly to be licensable (e.g. the consumption of press cuttings) might cease to be so.

To tackle that, the EPC wants (pdf) "a new limited neighbouring right to stop unlicensed use of snippets," and also, for good measure, "[h]yperlinking to illegal copies to be treated as an infringement." Given this relentless focus on creating a permission-based Internet, it will come as no surprise that the EPC hates the idea of introducing fair use in Europe:

this is an issue which would require considerable evidence-based research in order to make a reasoned evaluation of the benefits of introducing a fair dealing exception compared with the uncertainty and other risks which would be caused by its introduction.

That call for "considerable evidence-based research" is rather rich, given the complete absence of it for all the recent changes to European copyright law in favor of publishers. Indeed, as Techdirt has frequently discussed, there is plenty of research to support reducing copyright's term and reach, but when this is brought up, publishers are strangely uninterested in evidence-based policy making, preferring to stick with the dogma-based kind. Naturally, the EPC thinks that instead of fair use, what people really need is more licensing:

Europe would be better positioned to reach a dynamic flexibility for increased uses by providing incentives to small scale licensing, both B2B and B2C, and automated licensing solutions.

Part IV of the report is entitled "Meeting users' needs in the new media & publishing ecosystem." That's a welcome emphasis, since it finally recognizes that the users are not just some passive recipient of what the publishers decide to throw at them. However, the section's focus is still resolutely on seeking permission for every possible use of copyright material.

For example, one of the areas where publishers are fighting fiercely against granting new copyright exceptions is for text and data mining. The refusal to contemplate anything but licensing as an option led to a group of researchers, SMEs, civil society organizations and open access publishers pulling out of the European Commission's "Licensing for Europe" fiasco. Here's what EPC has to say on the matter:

A new exception for text and data mining at EU level carries a huge risk from 'the law of unintended consequences'. A key theme running through our paper is the enabling role of technology in managing copyright. Given the increasing automation of rights management, the full potential of which we have yet to realise, including in the area of specific permissions, access to and use of content, we urge the European Commission to look at practical solutions first for serving the genuine needs of the research community before legislation.

Scare-mongering about an exception for text and data mining is bad enough, but it gets worse. In this same section, we read the following concerning the copyright needs of users with a disability:

There are undoubted challenges faced by this user group in being able to access digital content although publishers have been investing in voluntary solutions, including via ePub3 and voice-enabled services online.

The report then goes on immediately to mention:

The Marrakech Treaty is a recent exemplar. It provides a legal framework to facilitate access to published works for persons who are blind, visually impaired or otherwise print disabled.

That gives the impression that the Marrakech Treaty was something that publishers backed strongly as a fair way of helping those with disabilities. In fact, quite the reverse is true. To have that hard-won treaty for the visually impaired presented here as an example of how publishers can be relied on to do the right thing by the public is not just misleading but morally repugnant. It shows that despite some fair words in the rest of the "vision" document, in important ways European publishers are just as selfish and cynical as ever.

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Filed Under: copyright, eu, fair use, licenses, permission, permission society, publishers
Companies: european publishers council

German Newspapers Want Google To Pay Them For Appearing In Search Results (Even As They Try To Rank Higher)

from the insanity-offense dept

About four years ago, you may recall, a group of German publishers were absolutely furious at Google for daring to send them traffic. At the time, they more or less admitted that they were just jealous that Google was able to earn revenue:

Hans-Joachim Fuhrmann, a spokesman for the German Newspaper Publishers Association, said the Web sites of all German newspapers and magazines together made 100 million euros, or $143 million, in ad revenue, while Google generated 1.2 billion euros from search advertising in Germany.

"Google says it brings us traffic, but the problem is that Google earns billions, and we earn nothing," Mr. Fuhrmann said.

Of course, as we pointed out at the time, he was comparing apples to oranges. Google earns money from search advertising. And the newspapers earn money from advertising as well, so the claim that the newspapers earn "nothing" is wrong. However, two years later, the publishers convinced the German government to take a stand and claim that showing news snippets and linking to the source somehow required a license. That resulted in a legislative fight, ending last year with a somewhat watered down snippet law that no one was entirely sure applied to Google.

Well, it appears the publishers aren't satisfied with how this has all worked out, because as Jeff Jarvis is pointing out, they've kicked off a legal arbitration process, in which they're demanding 11% of gross worldwide revenue on any search result that includes one of their snippets. This has been filed by the VG Media industry group. This is bizarre on multiple levels, including the fact that if everyone was able to get that, given the "10 blue links" nature of Google, the company would have to pay out over 100% of its search revenue to the very same people they're sending traffic to. That's... ridiculous.

Of course, we've seen all of this before. In nearby Belgium, a bunch of newspapers demanded payment back in 2006, and a court then ordered Google to pay up. When Google, instead, decided to remove those newspapers from its index, the very same Belgian newspapers flipped out and demanded to be let back into Google. Eventually, for reasons that I still don't understand, Google effectively decided to pay off the Belgian newspapers with a promise of vaguely helping them to make money online. I would imagine that the German newspapers are just looking for a similar handout. Same thing as French newspapers.

However, the example of the Belgians both demanding payment, but then also freaking out when they were removed from the index, is instructive. These newspapers receive tremendous benefits from being included in Google: Google sends them a ton of traffic. That's why they got so upset when removed. The problem is that (1) they're apparently bad at monetizing that traffic and (2) they're jealous of Google, thus demanding a pay off of some sort. As Danny Sullivan writes about this latest lawsuit, the true hypocrisy is apparent in the fact that the German newspapers, supposedly so upset about Google listing them without paying, have not only done nothing to remove themselves from Google's index (as can be easily done), but have actually made use of Google's tools to enhance their appearance within Google.

As Sullivan notes, these newspapers aren't being "swept up into Google's results against their wills," but rather appear to be "actively trying to gain more placement and visibility in them." And that's why this move for a cut of the revenue is so ridiculous and cynical. Basically, they're getting an incredibly valuable service from Google for free and are now demanding to get paid for it as well.

Filed Under: germany, newspapers, publishers, search engines, snippets
Companies: google, vg media

Economist Explains How Copyright Just Isn't Working

from the the-same-incumbents-still-winning dept

Alex Tabarrock, one of the contributors to Marginal Revolution (and associate professor of Economics at George Mason University) has often dealt with the subject of intellectual property from an economist's perspective. Recently, he changed things up and posted about his personal experiences with the frustrations inherent to intellectual property laws. Dealing with copyright in practice is much, much more aggravating and ridiculous than dealing with it in theory.

Working with textbook publishers, Tabarrock ran smack into the wall that copyright has constructed around -- of all things -- the public domain. (via Techdirt reader Marco)

For example, the publisher doesn't like to use public domain images. Why not? What could be better than free? The problem is that the bundlers insulate a publisher from lawsuits but when we use a public domain image the publisher is open to lawsuit if a mistake has been made and that makes them fearful.

That's only one way excessive copyright protection negatively affects the public domain. As has been noted here several times, the expanding length of copyright protection has carved a massive hole in the public domain, resulting in fewer older works being made available for public consumption. Our current system grants automatic copyright protection, along with a lifetime + 70 years of keeping it locked up, even if the creator has no desire to exploit the system well into his or her children's later years. This automatic protection makes the public domain a minefield for almost everyone.

The general lesson is that strong IP shrinks the public domain not just because it keeps things out of the public domain but also because it makes the public domain appear to be uncertain and dangerous. It's as if clean, mountain spring water were freely available but people bought from the bottlers instead out of fear of contamination.

As Tabarrock points out, this expanded, automatic protection actually does very little for the individual creator. Instead, it rewards "bundlers" like Corbis and Getty, entities that can use their own products without fear of legal reprisal. The more they bundle, the harder it is for others to make their creations available to other creators. Anything outside the mega-bundlers is viewed by other giants in the industry as inherently suspect by those paid small fortunes to protect their clients' IP and fend off challenges from others.

Worse, even if you secure the rights, you may not have secured the rights.

Here is another example. To illustrate the point that, contrary to what is often argued, a rich person might get more from another dollar than a poor person we have in Modern Principles a movie still of Scrooge McDuck swimming in money. We think the image speaks for itself but apparently that is a problem. The rights to the photo are–we are told–not the same as the rights to the characters shown within the photo. Thus, even though we have bought and paid for the right to print the photo, to ensure that the use of the characters within the photo falls under fair use we must discuss, comment on and critique the content of the photo in the text.

It's no coincidence that the example given features a Disney character. Many of the excesses in copyright law can be traced directly back to the entertainment giant. As long as it exists, copyright term expansion will always be on the table. Again, this favors the corporations, not the creators, as those creations are made under contract or considered "work for hire." They retain none of the rights, making any extension of copyright protection solely a win for Disney et al.

This climate has given rise to another powerful group, one equally benefited by each extension and convolution of copyright law: IP lawyers. Someone has to navigate the mess made by those in the copyright industry, and billable hours mount pretty quickly when someone can purchase the rights to a photo but not the content of the photo.

The public domain is dead to most in the industry. It's there to be occasionally exploited (Disney loves doing this) but the thought of anything of theirs falling into the public domain is inconceivable. It's a relic of the past as far as they're concerned, a noble idea that has no relevance in this era of lifetime-plus terms and automatic protection. But this same protection, granted in the name of creators, harms creators. At best, it makes navigating the rights process unnecessarily frustrating. At worst, it makes the public domain unusable and turns independent artists into unsafe, unknown quantities.

Filed Under: academic publishing, alex tabarrock, books, copyright, culture, public domain, publishers, risk