Copyright Law Stifling Free Speech And Artistic Criticism

from the yet-again dept

Pacific Standard Magazine has a really great article by Noah Berlatsky, looking at how copyright is stifling artistic criticism. Much of it focuses on a recent paper by John Tehranian, whom we've written about before. The paper is called Dangerous Undertakings: Sacred Texts and Copyright's Myth of Aesthetic Neutrality -- and focuses on how aesthetic judgments about the value of works almost always applies in copyright cases, which is a bit dangerous when it comes to art, criticism and free speech. Berlatsky's piece focuses on the famous case of The Wind Done Gone, the famous "unauthorized retelling" of Gone With The Wind from the perspective of another character. The lower court said it was infringing, and the appeals court overturned it -- but both were based, at least in part, on aesthetics, rather than underlying legal issues:

In its decision, the court pointed in particular to the fact that Scarlett and Mammy died in The Wind Done Gone as evidence that the sequel harmed the original. In financial terms, this objection doesn’t make much sense—as Tehranian points out, Kirk and Spock died in the Star Trek series at various points, and no one had any trouble bringing them back to life when needed. But the court’s objection does make sense if Gone With the Wind is viewed as inviolable, if any tarnishing of it is seen as illegitimate. “Thus, it is not whether the work is parody or sequel that truly appears to drive the court’s decision;” Tehranian concludes, “it is destruction of the work’s romanticism—a romanticism that is grounded in a distinctly whitewashed vision of the antebellum.”

The Eleventh Circuit Court of Appeals eventually reversed the lower court. But aesthetics were involved in that decision as well. The appeals court based its decision on the estimation that Gone With the Wind was not an inviolable classic, but was instead a flawed and indeed racist work. The court particularly singled out the fact that the Mitchell estate had prevented authorized sequels from discussing homosexuality or miscegenation. The Mitchell estate was trying to prevent re-evaluation or criticism of Gone With the Wind, and, implicitly, of its vision of the South. The appeals court ruled that such re-evaluation and criticism was in fact aesthetically valuable. “To the Eleventh Circuit,” Tehranian concludes, “the time had come to de-canonize Gone With the Wind and its inviolability.”

Berlatsky suggests that Tehranian argues this is okay because the fact that the Copyright clause of the Constitution talks about promoting the progress of "the useful arts," but that's a misreading of the Constitutional clause (and Tehranian's paper). While many people confuse this, the "useful arts" part of the clause is actually referring to patent protection ("useful arts" at the time meant inventions effectively). Copyright is supposed to be for promoting the progress of "science" (which at the time really meant "learning"). The real issue is what "promotes the progress" -- and that's where the aesthetic nature comes into play.

Tehranian's paper actually goes on to discuss another case, which we've discussed as well, which is the similar story of someone trying to write an unauthorized sequel to Catcher in the Rye. Except in that case, the judge banned the publication of the book entirely. And, again, aesthetic values came into play. As Tehranian notes:

The results of the two cases differed. In the former, an injunction against publication of the unauthorized work was lifted, and in the latter, the injunction ultimately stood. However, in both cases, aesthetic considerations – namely juridical conceptions of history, hierarchy and value pertaining to the underlying works and their allegedly infringing alter egos – dominated the fair-use analysis and ultimately enabled the law’s selective consecration of cultural meaning, its development of epistemological narratives and its beatification of sacred texts.

Later in the paper:

And aesthetic judgments on the relative value of unauthorized derivative works appear to have made a key difference in the court’s decision to issue the injunction. Consider the only mention that the Salinger court makes of the overarching goals of the copyright system. Seeking to reconcile its ruling with copyright’s role in promoting progress in the arts, the Salinger court reasoned that ‘some artists may be further incentivized to create original works due to the availability of the right not to produce any sequels’ (Salinger 2010b: 268, emphasis in original). As a first matter, the court’s speculation on this point strains all credulity. But regardless of how one feels about the bizarre conjecture that the right not to produce sequels can incentivize creation, it is clear that the court’s statement rests on a tacit aesthetic judgment: that it is better to preserve (ex post) the incentive to create The Catcher in the Rye than it is to stimulate the creation of unauthorized sequels. The calculus here is fairly remarkable: the court chooses to enjoin definitely the publication of unauthorized derivatives – works that could contribute to progress in the arts – on the chance, based on idle speculation, that some artists may create more because they can rest secure in the knowledge that no one can create sequels of their works. The hierarchy at play is simple: the original work implicitly trumps the sequel(s) and/or derivatives, especially those of the unauthorized variety. Certainly, for every Godfather II and Return of the Jedi, there are dozens of Blues Brothers 2000’s. But in deciding the fate of The Wind Done Gone, the Eleventh Circuit certainly did not seem bothered by this possibility, as it adopted a radically different aesthetic judgment of the unauthorized derivative. At a more subconscious level and in the context of our times, it perhaps feels less wrong to allow someone to skewer the dated artistic vision of Margaret Mitchell than to permit the adulteration of J.D. Salinger’s beloved Holden Caulfield.

As for the idea that this is an acceptable state of affairs, I find that to be troubling. We shouldn't rely on judges to determine the overall aesthetic value of things, because that is, by definition, a regulation on speech that shouldn't be permitted under the First Amendment. Judges determining the aesthetic value of a particular work is a dangerous path to tread.

Berlatsky argues that the culprit here is copyright terms, and that we'd have fewer of these problems if copyright were shorter. Undoubtedly that's true -- depending on the length, the works discussed above would likely be public domain by now. But, that still fails to take into account attempts to do more with recent works.

As we've covered recently fan fiction is an important form of speech, even when done commercially. Thus, an even better solution to all of this is to go back to basics: copyright should only protect the expression, not the idea. This is what we're told, but it often seems to fail in these cases. Writing fan fiction, unauthorized retellings, unauthorized sequels and the like are all very different forms of expression. While they may quote and/or reference the original, they are, by definition, not copies. If copyright were properly applied, these would be allowed as not copying the expression (and, at worst, as transformative, derivative works protected by fair use).

Unfortunately, however, judges feel the need to "protect" original works based on aesthetic values, and that's a huge problem for culture, free speech and criticism.

Filed Under: aesthetics, art, books, criticism, expression, free speech, idea expression dichotomy, john tehranian, noah berlatsky, retelling

EU's Highest Court Allows Libraries To Digitize Books Without Rightholder's Permission

from the balancing-the-books dept

Recently, Techdirt has reported on a number of decisions about copyright being handed down by the European Union's highest court, the EU Court of Justice (EUCJ). Here's another, this time involving the digitization of books (pdf). The case concerned a university library in Germany that wanted to digitize a book that it had purchased so as to be able to make it available electronically to its visitors. The publishing house tried to sell it an e-book of the work concerned that could be used for this purpose, but the library refused. Because it involved the EU Copyright Directive, the case was referred by the Federal Court of Justice in Germany to the EUCJ, which has now released the following decision:

the Court holds, first of all, that, even if the rightholder offers to a library the possibility of concluding licencing agreements for the use of his works on appropriate terms, the library may avail itself of the exception [permitted by the EU Copyright Directive] provided for in favour of dedicated terminals; otherwise, the library could not realise its core mission or promote the public interest in promoting research and private study.

Furthermore:

the Court finds that the directive does not prevent Member States from granting libraries the right to digitise the books from their collections, if it becomes necessary, for the purpose of research or private study, to make those works available to individuals by dedicated terminals. The right of libraries to communicate, by dedicated terminals, the works they hold in their collections would risk being rendered largely meaningless, or indeed ineffective, if they did not have an ancillary right to digitise the works in question.

In other words, since the EU Copyright Directive permits libraries to be given a right to use dedicated terminals to display works they already own, that would be meaningless if they couldn't digitize those works first. Although that's an eminently sane and reasonable result, copyright maximalists will doubtless complain about the erosion of their "rights", since they seem to take it as axiomatic that every new use of material under copyright should result in a payment to them. Happily, once more the EUCJ seems to be trying to bring a little more balance to this most unbalanced of fields.

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Filed Under: books, copyright, digitization, eu, eu court of justice, eucj, europe, libraries

Texas Religious Leaders Try To Get Public Libraries To Ban Vampire Books For Them

from the church-and-state dept

Public libraries: they're important. Now that we've gotten that out of the way, somebody is going to have to explain to me why we occasionally see people attempt to take books out of libraries on either religious or decency grounds. It seems to me that these people often need a lecture on the First Amendment and how they probably want to be careful about eroding its protections. The latest in need of such a lecture is a group of Texas religious leaders who are circulating a letter demanding a local public library remove all works of fiction that have to do with vampires and the occult.

Phillip Missick and other religious leaders have called on the Austin Memorial Library to remove books about vampires, demons and other magical beings from the teen section. Missick is circulating a petition that requests that the "occultic and demonic room be shut down, and these books be purged from the shelves, and that public funds would no longer be used to purchase such material, or at least require parents to check them out for their children," according to the Cleveland Advocate.

Missick's reasoning for this is the same moral panic crap we've written about so often: if children read about the occult, they'll end up being demonic little hooligans or whatever. It's Dungeons and Dragons, video games, and chess all over again. But it's all the more egregious when a religious leader calls for the removal of secular funds from a public institution to fulfill his religious views. We don't do that in America. Let me show Pastor Missick why we don't do that, using one of his own statements.

"This is dark. There's a sexual element. You have creatures that aren't human. I think it's dangerous for our kids," Missick, a pastor at King of Saints Tabernacle of Cleveland, told KTRK.

Now, let me think what other books that might exist that I could argue contain dark literature, sexual elements, and creatures that aren't human? Oh, I know! How about the bible? Plenty that could be considered dark, what with the detailed descriptions of war and Cain killing Abel and all that. Sexual elements? Oh, you betcha, what with the incestuous date-rape of Lot by his daughters and the orgies and whatnot. Non-human creatures? Well, you know, there's God, angels, and demons, so yeah. Most public libraries carry the bible in the reference section, alongside the equally dark-n-sexy religious texts from other major religions.

So, are we going to ban the bible in public libraries because of this? Shall we insist no public funds go to buying religious texts, including the bible? Of course not, because libraries aren't for partisan texts, they're for all texts that have value to the public, including texts we may not care for. You can't understand literature if you don't have a basic understanding of religious texts and you can't understand the current realm of young-adult fiction if you don't have access to vampire books. Sad, but that's the way it is.

So, hey, to my religious friends: stop trying to ban books. You're chipping away at a federal law that allows you to exist.

Filed Under: banning, books, moral panic, phillip missick, public libraries, texas, vampires

Amazon To Hachette And Authors: Here, Let Us Explain Basic Price Elasticity To You

from the lower-price,-make-more-money-dimwits dept

Apparently Amazon's efforts earlier this month to make it abundantly clear that it's fight with Hachette is about helping, not harming authors still didn't quite make it through to authors who seem to reflexively hate Amazon (often for reasons that don't make much sense). So now Amazon has tried to be even more explicit, by taking the time to explain what price elasticity means, and how Amazon's plan would actually make authors more money. They lay it out pretty clearly, especially for those authors who maybe didn't do so well in economics classes:

A key objective is lower e-book prices. Many e-books are being released at $14.99 and even $19.99. That is unjustifiably high for an e-book. With an e-book, there's no printing, no over-printing, no need to forecast, no returns, no lost sales due to out-of-stock, no warehousing costs, no transportation costs, and there is no secondary market -- e-books cannot be resold as used books. E-books can be and should be less expensive.

It's also important to understand that e-books are highly price-elastic. This means that when the price goes up, customers buy much less. We've quantified the price elasticity of e-books from repeated measurements across many titles. For every copy an e-book would sell at $14.99, it would sell 1.74 copies if priced at $9.99. So, for example, if customers would buy 100,000 copies of a particular e-book at $14.99, then customers would buy 174,000 copies of that same e-book at $9.99. Total revenue at $14.99 would be $1,499,000. Total revenue at $9.99 is $1,738,000.

The important thing to note here is that at the lower price, total revenue increases 16%. This is good for all the parties involved:

• The customer is paying 33% less.
• The author is getting a royalty check 16% larger and being read by an audience that's 74% larger. And that 74% increase in copies sold makes it much more likely that the title will make it onto the national bestseller lists. (Any author who's trying to get on one of the national bestseller lists should insist to their publisher that their e-book be priced at $9.99 or lower.)
• Likewise, the higher total revenue generated at $9.99 is also good for the publisher and the retailer. At $9.99, even though the customer is paying less, the total pie is bigger and there is more to share amongst the parties.

Keep in mind that books don't just compete against books. Books compete against mobile games, television, movies, Facebook, blogs, free news sites and more. If we want a healthy reading culture, we have to work hard to be sure books actually are competitive against these other media types, and a big part of that is working hard to make books less expensive.

So, at $9.99, the total pie is bigger - how does Amazon propose to share that revenue pie? We believe 35% should go to the author, 35% to the publisher and 30% to Amazon. Is 30% reasonable? Yes. In fact, the 30% share of total revenue is what Hachette forced us to take in 2010 when they illegally colluded with their competitors to raise e-book prices. We had no problem with the 30% -- we did have a big problem with the price increases.

Amazon then goes one step further, driving a real wedge between Hachette and authors with the following paragraph:

One more note on our proposal for how the total revenue should be shared. While we believe 35% should go to the author and 35% to Hachette, the way this would actually work is that we would send 70% of the total revenue to Hachette, and they would decide how much to share with the author. We believe Hachette is sharing too small a portion with the author today, but ultimately that is not our call.

Are there legitimate concerns that some may have about Amazon's position in the marketplace? Absolutely. But it's fight with Hachette does not seem to be about that, but rather about setting up a deal that actually does make everyone better off. It appears that Hachette has been fighting that, in this ridiculous belief that ebooks have to be priced higher -- and that it should get to keep more and more of the money.

Filed Under: authors, books, ebooks, economics, price elasticity
Companies: amazon, hachette

Why Does The Author's Guild Refuse To Even Acknowledge Views Of Authors Who Disagree With It?

from the they're-not-representing-authors dept

Could the organization calling itself the "Authors Guild" (from its behavior, better understood as a lobbying arm for big publishing houses) get more fearful and brittle? In response to a typically lopsided AG blog post yesterday, in which the Author's Guild mentioned, but failed to link to, a petition in favor of low ebook prices and fair wages for authors, I left the following comment:

For anyone inclined to consider thoughts a bit less hidebound than those of the "Authors Guild," here are a few good posts:

• More Preston Nonsense
• Authors United? I Wish It Were So
• Amazon/Hachette -- The Sounds of Silence
• Konrath and Eisler vs Richard Russo: The Sequel

Not for the first time, my comment didn't make it past the censor moderator. Why? Did I use obscene language? Insult anyone? Engage in unacceptably trollish behavior? Or did I simply link to a few posts that offer opposing viewpoints? It's funny, I write about the AG, and former president Scott Turow, and AG pitchman Richard Russo, and Douglas Preston's self-serving anti-Amazon efforts fairly regularly. And I always link to, and extensively quote from, anything I'm discussing. Not just because I want my readers to be able to make up their own minds. Not just because I have some integrity. But also because I want people to see exactly what the AG and its legacy-publishing shills are saying. Their positions are so illogical, so self-contradictory, and so self-serving that I believe the more light I can shine on them, the better people will understand what the AG and its people are really about.

But when an organization tries to conceal what its critics are saying, it's fair to surmise that something else is driving its behavior. And I don't know what that thing could be other than fear of contrary opinions the organization senses are more compelling than the organization's propaganda. Because really, what can you say about an organization so brittle, so insular, so fearful... that it won't even permit a few contrary links in a comment section? What can you say about an organization calling itself an "Authors Guild"... that censors the voices of authors whose opinions it doesn't like?

Filed Under: books, fear, publishing
Companies: amazon, authors guild, hachette

France Passes Anti-Amazon Law Eliminating Free Shipping; Amazon Responds With 0.01 Euro Shipping Fees

from the cher-dieu,-nous-avons-été-Columbia-Housed! dept

In a long-running legal battle that stretches back nearly a decade, Amazon has again emerged as the winner, despite both a court ruling and legislation against it.

In 2004, France's bookstores took the company to court over its discounts and free shipping, arguing that the online retailer was killing off local businesses. Three years later, the court emerged with a ruling that declared Amazon would have to start charging for shipping or face a 1,000 euro per day fine until it did. Amazon chose the latter option, opting to allow aggrieved merchants (and press covering the legal battle) to provide it with some very low-cost press.

Since that strategy didn't pay off, French retailers began pushing for a law aimed at all online retailers -- but most specifically Amazon -- that would make it illegal to offer free shipping to French book purchasers. This was on top of an existing law (put into force in 1981) that forbade anything more than a 5% discount on new titles. This new law forces Amazon to charge for shipping or face being banned from selling in France completely, along with stripping away the 5% discount.

No doubt this was seen as a huge victory for all the local stores that managed to weather the last 10 years of low-level, government-aided price fixing. It probably felt like one, too, right up until Amazon announced its new shipping rate.

France's "anti-Amazon" law prohibiting free shipping and discounts has now gone into effect, and Amazon quickly announced that it had conformed -- technically. Though it no longer ships books for free, it only charges 0.01 euro, conforming to the letter if not the spirit of the law (French Prime members still receive free book shipping).

Enjoy your symbolic victory, French legislators. A whopping centime per shipment "containing books" (no matter how many items are in the cart) will no doubt restore the financial glory of local retailers, especially when unaffected items start flowing into France with both discounts and cheaper shipping.

That's the sort of "victory" that's often achieved by legislating "fairness." There are others ways local retailers could have handled this problem, but they chose the long, expensive and ultimately fruitless courtroom/legislation route and the end result is 1/100th of a Euro per shipment. And this won't be the end of it. Amazon is apparently eyeing an appeal with the EU Commission, which views the new law as anti-competitive.

Filed Under: books, france, free shipping, regulations, shipping
Companies: amazon

Amazon Offers Authors 100% Of Ebook Sales To Get Them To Recognize Its Fight With Hachette Isn't About Screwing Authors

from the wake-up-authors dept

Last week, we had a post from author Barry Eisler, responding to a bunch of other authors who were attacking Amazon over its current contract dispute with Hachette. As Eisler noted, nearly all of their complaints were either misleading or didn't make sense. There's no doubt that there's a contract dispute going on, but claims of "boycotts" and other attacks seem really directed to people misunderstanding what's going on in the dispute -- and thus, those authors are defending the traditional gatekeeper publishing model in which Hachette gets to keep nearly all of the proceeds of book sales. Of course, the authors' main "complaint" was that they felt like they were being used as pawns in the fight, and that the dispute might impact their sales directly.

To show how bogus that claim is, Amazon today went directly to Hachette authors with a proposal Amazon claims Hachette rejected: offering to give authors 100% of the proceeds on ebook sales.

The letter extends and develops a proposal Amazon made earlier in the dispute, which was dismissed by Hachette. It now offers Hachette authors “100 percent of the sales price of every Hachette e-book we sell.” Amazon also offered to suspend all its shipping delays and price adjustments, which it put in place in an effort to bend Hachette to its will.

Of course, defenders of the publishers insist that this is all a ploy for Amazon in its never-ending mission to take over the world:

Roxana Robinson, president of the Authors Guild, dismissed the proposal.

“If Amazon wants to have a constructive conversation about this, we’re ready to have one at any time,” she said in an email. “But this seems like a short-term solution that encourages authors to take sides against their publishers. It doesn’t get authors out of the middle of this – we’re still in the middle. Our books are at the center of this struggle.”

Once again, it's confusing to figure out which side the Authors Guild is really on here. Since we started covering that organization, it appears that it sides 100% with the publishers and rarely sides with what matters for the vast majority of authors.

The whole situation is quite bizarre when you think about it. At the same time you have Hachette and the Authors Guild insisting that they're trying to "protect the book" by keeping book prices artificially high, they're loudly complaining that Amazon won't discount their books. Notice some hypocrisy here? If you want to understand why this is happening, the best explanation I've seen so far comes from Hugh Howey, one of the super successful self-published authors who is firmly in Amazon's camp on this fight. Writing in the Guardian, he notes the perverse incentives of the traditional publishing world on Amazon:

Under the previous wholesale model, publishers might price an ebook at $14.99, and with the 50% discount, an online retailer like Amazon was able to discount to a more reasonable $9.99 to serve customers. Customers who expect digital books to cost less than the paperbacks with which they were familiar. With the new discount rate, Amazon stood to lose money by offering that same price. Publishers, meanwhile, were less than enthusiastic about lowering the offered wholesale discount.

Publishers like Hachette now found themselves in enviable territory. They could price ebooks high – protecting their relationship with high-street booksellers – and rely on Amazon to cut their own margin to the bone in order to move quantities of ebooks. This new situation created the bizarre scenario where authors who once complained about Amazon's discounting are now complaining that they aren't discounting enough. And during these negotiations, parties from Hachette's side are accusing Amazon of raising prices by offering something close to what the publisher itself is setting.

In a presentation to investors, Hachette has stated as a primary goal the control of ebook pricing. Breaking their habitual silence just last week, a representative from Amazon confirmed that the sticking point in these negotiations is indeed price. So both sides have confirmed what's at stake. History would indicate that Amazon thinks ebooks should cost no more than $9.99. Their agreement with self-published authors supports this, as the royalty rate paid halves if the price exceeds this amount. Hachette, meanwhile, would very much prefer to offer ebooks at $14.99 or more and leave any discounting up to Amazon (or any pain up to their customers).

In other words, everyone really knows that ebooks should be priced lower, but the old publishing world wants to be able to set much higher prices, forcing Amazon to basically make no money at all on pricing the books lower. Given this scenario, it actually makes sense for Amazon to then make this offer to authors directly: it will hand over 100% of ebook revenue, because under Hachette's proposal, Amazon would make no money at all (or even lose money) on ebook sales anyway.

Filed Under: authors, books, contractual fight, ebooks, self-publishing
Companies: amazon, hachette

New Research Shows Digitization Results In Routine Lock-Down Of Public Domain Books

from the what-about-our-rights? dept

The public domain is supposed to be what we receive in return for, and after the expiry of, time-limited, government-backed intellectual monopolies that are granted to creators. As Mike noted recently, that neat equation does not reflect today's reality for copyright, where the situation is so complicated that it requires a 52-page handbook to determine whether or not something is in the public domain.

But the situation is actually far worse than that, because the public is being denied access to many works that are unambiguously in the public domain because of new restrictions being placed on them when they are digitized. That's something that Techdirt has discussed before, but such stories have been largely anecdotal. Research from New Zealand provides us with more detailed information of what's going on:

In order to establish the extent to which digitized public domain books are being restricted, a sample of 100 pre-1890 books was selected from the New Zealand National Bibliography (NZNB). This sample was chosen on the assumption that these works had entered the public domain under New Zealand copyright law. Each book in the sample was searched for within six online repositories: Google Books, Hathi Trust, Internet Archive, Early New Zealand Books (ENZB), New Zealand Electronic Text Collection (NZETC) and Project Gutenberg. In addition, Google and Bing searches were conducted for all sample books that could not be located within these repositories.

Here's what the researchers discovered:

The findings of this research suggest that a high proportion of digitized public domain books are being restricted by online repositories. Out of a sample of 100 public domain books, only three are hosted by repositories that do not impose any form of usage restriction. Furthermore, 48 percent (24) of all digitized books [50 out of the 100 public domain sample] are hosted by a repository that restricts or blocks access, with the most restrictive repository limiting or blocking access to 91 percent (21) of sample books within its collection.

They also managed to pinpoint the key problem:

Almost all access restrictions applied to public domain books within the sample were the result of repositories using a process of estimation to assess copyright status. Within the sample, a one-minute search located accurate biographical information about authors two-thirds of the time. This task takes a fraction of the time required to digitize a book, which involves 30 minutes to scan 500 pages (Kelly, 2006).

A solution is the following:

Digitizers should incorporate the sourcing of copyright information within the overall process of digitization, and copyright estimation should only be used as an option of last resort. Furthermore, copyright estimation periods should better reflect statistical norms regarding the actual duration of copyright protection. The current estimation period of 140 years, used by Google Books and Hathi Trust, is far too conservative. If hosted under this policy, 47 percent of sample books would be restricted. This is despite the fact that all books with locatable biographical information were confirmed as being in the public domain for between 30 and 132 years.

This goes back to the problem of determining whether a work is in the public domain or not. Because that can be complex, those carrying out the digitization of works simply assume the worst, just to be on the safe side. That's something that needs to change, otherwise we risk losing not just the benefits of digitized public domain works, but also our undoubted rights to access them freely.

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Filed Under: archives, books, copyright, ebooks, libraries, lockdown, new zealand, public domain

Advocate General Says EU Libraries May Digitize Books In Their Collection Without Permission

from the baby-steps dept

A few days ago, Techdirt wrote about the Authors Guild losing yet again in its attempt to stop university libraries and Google scanning books without permission. Over in Europe, a similar, if rather more limited decision has been handed down by the Advocate General of the European Union's Court of Justice (pdf). As is usual, this is only a preliminary ruling, but is generally followed by the court itself. The case concerns a dispute between the Technical University of Darmstadt and a German publishing house, Eugen Ulmer KG:

The publishing house is seeking to prevent (i) the university from digitising a book it holds in its library collection published by Eugen Ulmer and (ii) users of the library from being able, via electronic reading points provided therein, to print the book or save it on a USB stick and/or take those reproductions out of the library. The university has digitised the book in question and made it available on its electronic reading posts. It has refused the offer of the publishing house to purchase and use as electronic books ('E-books') the textbooks it publishes.

Here's the key part of the decision:

the Advocate General considers that the [EU copyright] directive does not prevent Member States from granting libraries the right to digitise the books from their collections, if their being made available to the public by dedicated terminals requires it. That may be the case where it is necessary to protect original works which, although still covered by copyright, are old, fragile or rare. That may also be the case where the work in question is consulted by a large number of students and its photocopying might result in disproportionate wear.

However, [the Advocate General] Mr Jääskinen makes clear that the directive permits not the digitisation of a collection in its entirety, but only the digitisation of individual works. It is particularly important not to opt to use dedicated terminals where the sole purpose of doing so is to avoid the purchase of a sufficient number of physical copies of the work.

Lastly, Mr Jääskinen takes the view that the directive does not allow the users of dedicated terminals to save the works made available to them on a USB stick.

As that indicates, this is a fairly specific result, rather than a broad general right as in the US digitization case. However, what is encouraging is that it is the latest in a string of good decisions handed down by the European Union's Court of Justice that are starting to introduce a modicum of common sense to Europe's outdated copyright laws.

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Filed Under: books, copyright, digitizing, eu, europe, fair use, libraries, permission
Companies: authors guild, eugen ulmber kg, university of darmstadt

Accepting Amazon's DRM Makes It Impossible To Challenge Its Monopoly

from the from-one-monopoly-to-another dept

Amazon was the target of some well-deserved criticism this past week for making the anti-customer move of suspending sales of books published by Hachette, reportedly as a hardball tactic in its ongoing negotiations over ebook revenue splits. In an excellent article, Mathew Ingram connects this with other recent bad behavior by Internet giants leveraging their monopolies. Others have made the connection between this move and a similar one in 2010, when Amazon pulled Macmillan books off its digital shelves.

That dispute took place a little over four years ago, and ended with Amazon giving in and issuing a statement that people found a bit strange. Here's a quote:

We want you to know that ultimately, however, we will have to capitulate and accept Macmillan’s terms because Macmillan has a monopoly over their own titles, and we will want to offer them to you even at prices we believe are needlessly high for e-books.

"Monopoly" was a funny choice of words there. The author John Scalzi, whose piece decrying Amazon’s actions at the time is still very much worth reading, memorably took issue:

And not only a forum comment, but a mystifyingly silly one: the bit in the comment about Amazon having no choice but to back down in the fight because “Macmillan has a monopoly over their own titles” was roundly mocked by authors, some of whom immediately started agitating against Amazon’s “monopoly” of the Kindle, or noted how terrible it was that Nabisco had a “monopoly” on Oreos.

Monopoly, of course, is economically the correct term. Publishers of books that are restricted by copyright have a set of exclusive rights granted to them by law. Their monopoly looks distinct from Amazon's near-monopoly bookseller position, though, because it's one agreed to in public policy. In a sense it is also more absolute, and less vulnerable to challenge, because it's a legal monopoly, and not just a market monopoly.

To the extent Amazon has a monopoly on selling paper books, then, it could be challenged not just by legal action (such as antitrust investigation) but by other businesses competing. There would be some extreme logistical difficulties, and disparities created by economies of scale that might be impossible to overcome, but in principle other businesses are able to compete for Amazon's market position on physical books.

Copyright behaves differently: when it comes to Macmillan or Hachette's books, nobody may undercut prices by making production more efficient, or design prettier covers, or edit the text into a more compelling presentation. Where that's a good thing, it's because we've reached it by public policy. We've granted copyright holders an inviolable (if limited) legal monopoly because we as a society like the results.¹

A very real danger, though, is if Amazon can take the challengeable market monopoly it has put together, and ratchet it into an unchallengeable legal monopoly. That is exactly what DRM does.

By putting DRM on its digital products—ebooks and audio books—Amazon gets the legal backing of the Digital Millennium Copyright Act's anti-circumvention restrictions on its products. This isn't for the advancement of public policy goals, either; Amazon gets to create the private law it wants to be enforced. Thanks to DRM, Kindle users are no longer free to take their business elsewhere—if you want a Kindle book, you must purchase it from Amazon.

Fortunately Kindle software can, for now, read other non-restricted formats. But the functionality is limited, and not guaranteed to stick around. And it's a one-way street: other software and hardware may not read ebooks in the Kindle format. Customers who amass a Kindle library will find no compatible non-Amazon reader. The fact that individual users can usually circumvent the DRM, too, doesn't help businesses trying to compete in that space.

Amazon has a lot of fans, and they tend to ascribe its rise as a bookseller for its aggressively pro-customer stance. If it drops that stance, even major fans would probably agree that it no longer deserves the throne. Unfortunately, DRM takes the conditional monopoly that customers like (you get to be the largest bookseller so long as you're good to your customers) and replaces it with an unconditional one (you once achieved monopoly and that is now permanent).

Last week's sketchy move against Hachette looks like a willingness to throw its customers under a bus in the name of better business deals. If publishers continue to insist on DRM, and if customers continue to allow it, we lose our ability to object.

1. Of course, that is only as true as copyright policy reflects the will of the public, which it doesn’t, but it’s something to aspire to.

Republished from parker higgins dot net

Filed Under: books, disputes, drm, monopoly
Companies: amazon, hachette