Authors Guild's Scott Turow: The Supreme Court, Google, Ebooks, Libraries & Amazon Are All Destroying Authors

from the old-man-yells-at-cloud dept

We've written more than a few times about Scott Turow, a brilliant author, but an absolute disaster as the Luddite-driven head of the Authors' Guild. During his tenure, he's done a disservice to authors around the globe by basically attacking everything new and modern -- despite any opportunities it might provide -- and talked up the importance of going back to physical books and bookstores. He's an often uninformed champion of a past that never really existed and which has no place in modern society. He once claimed that Shakespeare wouldn't have been successful under today's copyright law because of piracy, ignoring the fact that copyright law didn't even exist in the age of Shakespeare. His anti-ebook rants are just kind of wacky.

However, in his latest NY Times op-ed, he's basically thrown all of his cluelessness together in a rambling mishmash of "and another thing", combined with his desire to get those nutty technology kids off his lawn. For the few thousand members of the Authors Guild, it's time you found someone who was actually a visionary to lead, rather than a technology-hating reactionary pining for a mythical time in the past.

First up, a confused reaction to the Supreme Court's protection of first sale rights in Kirtsaeng.

LAST month, the Supreme Court decided to allow the importation and resale of foreign editions of American works, which are often cheaper than domestic editions. Until now, courts have forbidden such activity as a violation of copyright. Not only does this ruling open the gates to a surge in cheap imports, but since they will be sold in a secondary market, authors won’t get royalties.

First of all, no, this was not a "change" in US law. Courts had not forbidden this particular situation in the past, because the specifics of this hadn't really been tested in the past other than a few recent cases with somewhat different fact patterns. The point of the Supreme Court's ruling was to reinforce what most people already believed the law to be: if you buy a book, you have the right to resell it.

As for the "surge" in cheap imports, let's wait and see. It might impact markets like textbooks, which are artificially inflated, but for regular books? It seems like a huge stretch to think that it would be cost effective to ship in foreign books just for resale. And, of course, secondary markets have existed for ages, and studies have shown that they actually help authors because it makes it less risky to buy a new book, since people know they can resell it. Turow admits that secondary markets have always existed, but then jumps to what this is all "really" about in his mind:

This may sound like a minor problem; authors already contend with an enormous domestic market for secondhand books. But it is the latest example of how the global electronic marketplace is rapidly depleting authors’ income streams. It seems almost every player — publishers, search engines, libraries, pirates and even some scholars — is vying for position at authors’ expense.

Yes, that's right. The Kirtsaeng decision isn't just about first sale, it's really about the evil "global electronic marketplace" sucking authors dry. Of course, Turow fails to mention that Kirtsaeng had next to nothing to do with the internet. Yes, Kirtsaeng ended up selling his books via eBay, but tons of books sell on eBay. That had no impact on the ruling at all. The issue in the ruling was about books legally purchased abroad, and Kirtsaeng did that without the internet -- he just had friends and family back in Thailand buying books for him. To blame that on "the global electronic marketplace" is just completely random and wrong. It seems like the kind of thing someone says when they just want to blame technology for everything. Turow has his anti-technology hammer, but he's got to stop seeing nails in absolutely everything.

Authors practice one of the few professions directly protected in the Constitution, which instructs Congress “to promote the progress of Science and the useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The idea is that a diverse literary culture, created by authors whose livelihoods, and thus independence, can’t be threatened, is essential to democracy.

Turow is a lawyer. As such, I would expect him not to misrepresent what the Constitution says, but he's done so here. Authors are not "directly protected in the Constitution." The Constitution does not "instruct" Congress to create copyright to promote the progress. Article 1, Section 8 of the Constitution grants Congress specific powers concerning what it can do. It does not "instruct" Congress that it must do these things. The same section of the Constitution also gives Congress the ability to "grant letters of marque" to privateers ("pirates" on the high seas) to attack enemies. No one would ever argue that the Constitution "instructs" Congress to authorize pirates on the high seas to "attack and capture enemy vessels." In fact, Congress has not officially used this power since 1815. Similarly, there is no requirement that Congress "protect" authors in this manner, no matter how much Turow may pretend this is the case.

Frankly, it's bizarre that Turow would so misrepresent the Constitution, when he must know what he's saying is untrue. It really calls into question why the NY Times allows such blatantly false statements to go out under its name.

That culture is now at risk. The value of copyrights is being quickly depreciated, a crisis that hits hardest not best-selling authors like me, who have benefited from most of the recent changes in bookselling, but new and so-called midlist writers.

Take e-books. They are much less expensive for publishers to produce: there are no printing, warehousing or transportation costs, and unlike physical books, there is no risk that the retailer will return the book for full credit.

Note the implicit assumption: only publishers produce books. Turow, apparently, ignores the fact that these modern technological wonders (which he hates so much) have enabled an entire new world of massively successful self-published authors, who take advantage of this situation to realize that they don't need publishers, and the lower costs and ease of distribution makes things much easier. As Clay Shirky has said in the past, publishing is a button, not an industry. And, no, that doesn't mean that authors should all do it by themselves, but the challenges are in marketing, not in "publishing" or distribution any more (with respect to ebooks).

Also the idea of a literary culture at risk is laughable. More books are being published today than ever before. More people are reading books today than ever before. More people are writing books than ever before. Books that would never have been published in the past are regularly published today. There is an astounding wealth of cultural diversity in the literary world. Sure, some of it means a lot more competition for the small group of authors (only about 8,000 or so) that Turow represents... oh wait, I think we've perhaps touched on the reason that Turow is all upset by this. But, of course, more competition for that small group of authors does not mean the culture of books and literature is at risk at all. Quite the opposite.

But instead of using the savings to be more generous to authors, the six major publishing houses — five of which were sued last year by the Justice Department’s Antitrust Division for fixing e-book prices — all rigidly insist on clauses limiting e-book royalties to 25 percent of net receipts. That is roughly half of a traditional hardcover royalty.

Best-selling authors have the market power to negotiate a higher implicit e-book royalty in our advances, even if our publishers won’t admit it. But writers whose works sell less robustly find their earnings declining because of the new rate, a process that will accelerate as the market pivots more toward digital.

Again, this totally ignores the new reality. Authors who don't like this admittedly crappy deal from the big publishers can go to alternatives. They can self-publish. Or they can sign up with one of a new crop of digitally savvy publishers who are much more like partners than gatekeepers. No surprise that Turow doesn't even seem to know these things exist. Hell, just last week we were talking about a successful self-published author who leveraged his massive success into an extremely favorable deal with Simon and Schuster to handle physical book distribution. And a week later Scott Turow argues that only historical top sellers like himself can negotiate better rates with the Big 6 Publishers in NY? Wake up, Scott, there's a whole new world out there that you seem to be ignoring.

Barry Eisler famously turned down a half million dollar contract with a publisher, because he realized that the economics of going direct were much better. Plenty of authors are recognizing that they have leverage today where they used to have none. It seems odd that Turow doesn't even acknowledge this reality at all, instead assuming that authors are still locked into the system where the only way they can become published is by taking a bad deal with a publisher.

And there are many e-books on which authors and publishers, big and small, earn nothing at all. Numerous pirate sites, supported by advertising or subscription fees, have grown up offshore, offering new and old e-books free.

If you're an author earning nothing at all, then you've got bigger problems than technology. It probably means you're mired in obscurity and no one knows who the hell you are. On top of that, it means you've done nothing at all to connect with your fans. Because we've seen authors who actively encourage the piracy of their books, but who also work to connect with their fans, and have seen their sales go way up, because those fans want to support the authors. Also, as most people know (why doesn't Turow seem aware of this?) ebook "piracy" is a fairly small part of the market, in part because the initial market was dominated by the Amazon Kindle, and publishers smartly jumped on board. Yes, there is ebook piracy, but it's not like the music and movie business where the official sources basically ceded the entire market to piracy for years.

The pirates would be a limited menace were it not for search engines that point users to these rogue sites with no fear of legal consequence, thanks to a provision inserted into the 1998 copyright laws. A search for “Scott Turow free e-books” brought up 10 pirate sites out of the first 10 results on Yahoo, 8 of 8 on Bing and 6 of 10 on Google, with paid ads decorating the margins of all three pages.

Okay, this is just dumb. First of all, no one is searching for "Scott Turow free e-books" so this shouldn't be much of a concern. I did a Google Trends search on "Scott Turow free e-books" vs. "Scott Turow books" and it shows no one searches for "Scott Turow free e-books", so he doesn't have much to worry about. Frankly, he should probably be a hell of a lot more concerned that not too many people seem to be searching for "Scott Turow books" either. But the larger point here is that, even if people were searching for "Scott Turow free e-books," how would that matter that much? By the very fact that they're doing that particular search, they've more or less self-identified as people not interested in paying money for Scott Turow books, so they're not the market anyway.

If I stood on a corner telling people who asked where they could buy stolen goods and collected a small fee for it, I’d be on my way to jail. And yet even while search engines sail under mottos like “Don’t be evil,” they do the same thing.

This is silly on multiple levels. First of all, by his own numbers, Google (who uses "Don't be evil") had the least number of "bad" sites in the results according to Turow. I did the same search and actually found only a couple sites that possibly were infringing. Instead, I did see links to the Authors Guild, to Amazon, to Turow's Wikipedia page... and to an old Techdirt article about Turow's cluelessness. That said, you could argue that if Google is "being evil" here it's actually by not giving its users what they're looking for -- which is clearly "free e-books." If people were actually doing this search (and we've already shown they're not) then perhaps it really just meant that Turow should be offering his own damn free ebooks, since that's what people are looking for. Why not offer an early work as a free download to get people interested in his books? Hell if he's really worried about it, offer up the first five chapters of a book. I've read a few of his books, and they can really grab you. Let people read the first few chapters for free and I'd bet lots of people would pay a reasonable price for the full book.

Instead of understanding any of this, Turow falsely attacks search engines on multiple levels. First, he suggests they're at fault because people are looking for free ebooks (even if they're not actually doing so for his own books). He assumes that because he did that search, others must. Second, when those search engines actually try to deliver what these theoretical people want (despite the fact that Turow himself has failed to do so) he complains about it. Finally, he falsely suggests that the search engines are making money doing so. They're not. Search engines make money if people click on ads. If someone sees a free ebook and clicks on an organic link, the search engine isn't making any money. I recognize that Turow hates technology, but that's no excuse for being blatantly ignorant about it when spewing misrepresentations in the NY Times.

From there, he attacks Google's book scanning project.

Google says this is a “fair use” of the works, an exception to copyright, because it shows only snippets of the books in response to each search. Of course, over the course of thousands of searches, Google is using the whole book and selling ads each time, while sharing none of the revenue with the author or publisher.

The second sentence has nothing to do with the first sentence. It is fair use because they're only showing snippets at a time, and most of those searches lead people to places where they can buy the books. I just did a search on Google Books for "Scott Turow" and the top links is to an Amazon page listing out all of Turow's books for sale. You'd think he'd appreciate such things. But, then, he'd have to not be a technologically illiterate Luddite.

All of this also ignores that Google's book scanning is really just about creating a rather useful card catalog for books, making them easier to find. Over and over again, people who have actually looked at the issue (i.e., not Scott Turow) have found that Google books increases sales of books. Considering he was just complaining about authors not getting any money, you'd think this would be a good thing.

He drones on about Google scanning books for a while, and then... attacks libraries for wanting to lend out ebooks, insisting that if they can do that, no one will ever buy a book again.

Now many public libraries want to lend e-books, not simply to patrons who come in to download, but to anybody with a reading device, a library card and an Internet connection. In this new reality, the only incentive to buy, rather than borrow, an e-book is the fact that the lent copy vanishes after a couple of weeks. As a result, many publishers currently refuse to sell e-books to public libraries.

One might also say "in this new reality," libraries are helping people access the wealth of information contained in books, just as they've always done. Who knew Scott Turow was so anti-library? It's kind of silly that maximalists and luddites keep jumping back to this trope. The idea that if you can get something for free, no one will ever pay for it. That's never been true and will never be true. All of the works that people pay for and download to their Kindles are already available for free on unauthorized sites. But tons of people pay. All of the music that people pay for and download to their iPods is already available for free on unauthorized sites. But tons of people pay. People will pay all the time for things they can get for free. Just check out the bottled water industry.

Turow then jumps back to attacking his other technological nemesis, Amazon, based on random speculation about a patent the company received:

An even more nightmarish version of the same problem emerged last month with the news that Amazon had a patent to resell e-books. Such a scheme will likely be ruled illegal. But if it is not, sales of new e-books will nose-dive, because an e-book, unlike a paper book, suffers no wear with each reading. Why would anyone ever buy a new book again?

Well, there's that trope again. Also, this ignores the ReDigi ruling, which has already said this is illegal, though that will be appealed. But, again, lots of people will still buy new ebooks, because they like to support authors. Also, it's likely that smart authors will embrace new and interesting business models in which this kind of thing isn't a problem. They can use Kickstarter to "pre-sell" the books and get support from fans. They can offer special benefits for fans who buy new books (such as membership in a fan club with other fans of that author). They can provide early previews or discounts on future or past works to those who buy first run copies of their new works. The list goes on and on -- and those are just the ones I came up with in the 30 seconds I spent thinking about it. Give me a full day to work on it, and the list would be in the dozens. But Turow, bizarrely, assumes that no one could possibly come up with any other reason.

And, from there, we go off onto a totally wacky tangent about Russia.

Last October, I visited Moscow and met with a group of authors who described the sad fate of writing as a livelihood in Russia. There is only a handful of publishers left, while e-publishing is savaged by instantaneous piracy that goes almost completely unpoliced. As a result, in the country of Tolstoy and Chekhov, few Russians, let alone Westerners, can name a contemporary Russian author whose work regularly affects the national conversation.

Note that he names Tolstoy and Chekhov -- two authors who both died more than a century ago. Could Turow easily name for us a Russian author from the 1940s who regularly affected the national conversation? How about the 1960s? 1980s? 1990s? No? Perhaps the problem isn't ebooks and piracy.

Meanwhile, as it so happens, not too long ago, we wrote a report on the content markets in various countries, including Russia. Turow might find it helpful, since he seems to be at a loss for actual data and facts in so many of his public statements on these issues. He can get a copy of The Sky is Rising 2 if he'd like. We offer it for free (the horror!). In it, he'd discover that the Russian book business is on the upswing. In the past fifteen years, the number of books published has increased by an impressive 266%, from just 33,623 in 1995 to 122,915 in 2011. That rate of growth exceeded all of the other countries we studied in Europe. It is true that the Russian market saw a decline in book revenue between 2008 and 2011 as the worldwide recession had an impact, but it has also recently seen the absolutely massive growth in the sale of ebook readers. As we've seen elsewhere, growth in ebook readers almost always acts as a leading indicator for later growth in ebook sales, because most readers connect easily to various authorized ebook stores, and the convenience factor leads to sales. One of the issues in Russia has been that many of the established players have been exceptionally slow in offering up authorized copies in the Russian market. If there are no authorized copies to buy, it shouldn't be a huge surprise to find out that people seek out alternatives.

It should be noted that when famed author Paulo Coelho decided to pirate his own book in Russia, it was because his publisher refused to offer a Russian translation. And what Coelho discovered was that sales of his book jumped from around 1,000 books to over 100,000 books because of his own decision to seed an unauthorized Russian translation. At the very least, this suggests that "piracy" isn't the problem and that, if handled well, authors can absolutely get people to buy, even when free works are available.

Scott Turow is clearly a smart individual. He's a fantastic author, whose books I've enjoyed for years. But it boggles my mind that he's so anti-technology based on ridiculous and ignorant claims, and that despite being called out on his ignorant statements for years, he chooses not to learn, but instead doubles down on those same ignorant statements by saying even more. It's doubly confusing that the NY Times sullies its own good name by allowing such obviously false statements to be published under its masthead.

Finally, the 8,000 or so authors (a mere fraction of the number of actual authors out there) who make up the Authors Guild are not served well by having someone as technologically reactionary as Turow leading them. It seems they'd be much better served by having a visionary leader who looks at ways to embrace new opportunities and who has realized that they can help to better promote, to connect with fans and to monetize their works. Having someone just yell about general progress, and try to ignorantly shoo the "kids" off his lawn over and over again, does them no favors.

Filed Under: authors, copyright, ebooks, first sale, libraries, scanning, scott turow, search engines, technology
Companies: amazon, authors guild, google

Sorry Fair Use, Court Says News Clipping Service Infringes On AP Copyrights

from the fair-use,-what's-that? dept

We were surprised last year when the Associated Press decided to sue Meltwater News -- an online press clipping/news aggregator service. The issue is that Meltwater does index various news articles, just like Google, allowing you to search on them. But it does not deliver the full articles to users instead delivering snippets (just like Google News), and then points them to versions online (increasing traffic to AP stories). It delivers two snippets -- the first is only 300 characters, representing the opening of the article, and the second of less than 140 characters, highlighting the line that triggered the alert itself (i.e., matching keywords). However, Meltwater also has a feature that lets subscribers choose to archive the text of articles they find elsewhere -- like a ReadItLater/EverNote/Instapaper kind of thing. But that's all done at user discretion, not by Meltwater.

Not surprisingly, we found Meltwater's response to the lawsuit quite compelling. It argued a strong fair use right, combined with claims of copyright misuse by the AP. Unfortunately, the court did not find them compelling. The district court has sided with the Associated Press in ruling for summary judgment against Meltwater, a ruling that will surely be appealed.

The ruling itself has a ton of problems, that hopefully will be fixed by an appeals court. The court seems strongly influenced by the fact that the AP has a service that competes with Meltwater, but that, alone, is no basis for finding infringement. Also, it notes that other "competitors" in the space do have AP licenses, including Google News. But that's misleading. The AP had threatened Google News with a similar lawsuit, but they got around it with a silly agreement by which Google licenses AP news to post full stories as if it were an AP syndication partner. But that's not what Meltwater does.

The court doesn't agree with the fair use defense by Meltwater, but does so with some really wacky reasoning. It runs through the standard four factor test, but really has a unique interpretation of what counts as "transformative" use, somehow arguing that the use needs to be an entirely new form of use to be transformative.

Based on the undisputed facts in this record, Meltwater provides the online equivalent to the traditional news clipping service. Indeed, Meltwater has described itself as adding “game-changing technology for the traditional press clipping market.” There is nothing transformative about that function.

I don't think that's what transformative means. No one said it had to be innovative -- just different from the purpose of the original work.

Separately, the court argues that because Meltwater competes with one part of the AP's business, then the transformative argument doesn't apply.

Meltwater copies AP content in order to make money directly from the undiluted use of the copyrighted material; this is the central feature of its business model and not an incidental consequence of the use to which it puts the copyrighted material. Thus, it is not surprising that Meltwater’s own marketing materials convey an intent to serve as a substitute for AP’s news service.

That, unfortunately, is confusing two different aspects of the AP's business. There's the reporting side which produces the news, and then there's the "news service" side, which sells the service of providing news alerts to various customers. Meltwater is competing with the latter, but the copyrights in question apply to the former -- and thus Meltwater's use should be seen as transformative since it is not competing with the copyright around the creation and presentation of the news itself, but rather with the service of finding the most relevant news.

Furthermore, the court keeps going back to the low rate of clickthrough on Meltwater's clips. But that, too, is misleading. First of all, this could just be because Meltwater's relevance engine isn't very good. If it's not delivering relevant content, then people won't click very much. But that should hardly weigh on the copyright claim. Alternatively, perhaps it's the Associated Press's content that isn't very good. That is, readers see little reason to click on their versions of the story. Again, the actual click through rate on such stories is somewhat meaningless and certainly doesn't suggest that people are using the AP less because of Meltwater. They still may be articles that that people wouldn't see otherwise, it's just that for, whatever reason, people didn't click through them that much. Also, you have to look at how many people use clipping services anyway -- it's not necessarily to read each and every article, but to do a quick skim and see if there's anything really important they need to know about or to get a general sense of coverage out there. None of those would result in clicks. But that doesn't mean that Meltwater doesn't overall increase absolute clicks to AP articles simply by exposing them to more people.

In the discussion on the "amount" of work use, the court again runs into trouble, arguing ridiculously that taking the opening (or "the lede") from every article is somehow against a finding of fair use:

Meltwater took between 4.5% and 61% of the Registered Articles. It automatically took the lede from every AP story. As described by AP’s Standards Editor, the lede is “meant to convey the heart of the story.” A lede is a sentence that takes significant journalistic skill to craft. There is no other single sentence from an AP story that is as consistently important from article to article –- neither the final sentence nor any sentence that begins any succeeding paragraph in the story.

In other words, Meltwater is smartly using the first sentence to highlight what an article is about. Without that, it's service is a lot less useful. But that doesn't change the nature of the overall issue, which is that it's still only offering up a small portion of the content in question.

The court also seems to think it knows how to run a search engine:

Next, Meltwater argues that the extent of its copying is justified because its purpose is to serve as a search engine. But, Meltwater has failed to show that it takes only that amount of material from AP’s articles that is necessary for it to function as a search engine. Indeed, the evidence is compellingly to the contrary.

I'm curious. What is "the amount necessary to function as a search engine?" One might reasonably suggest that a search engine would be wise to index everything. Yet the court here seems to be suggesting otherwise. I'm curious how many search engines the judge has built.

Basically, Meltwater points out that what it does is no different than a search engine, and the court says (without much basis) that it doesn't think Meltwater really is a search engine, and thus these defenses don't apply. But this is extremely troubling for actual search engines, because you can take each of the pieces out and then try to apply them to a basic search engine, and you'll find that if this ruling stands, it makes being a search engine much more difficult as well.

The court, also worryingly, rejects Meltwater's argument that because the AP did not block it via robots.txt, that it is providing an implicit license to index the site.

The implied license that Meltwater is advocating would reach to every web crawler with no distinction between those who make fair use and those who do not, or between those whose uses may be publicly observed and those whose uses are hidden within closed, subscriber systems. Meltwater has presented no evidence to suggest that robots.txt instructions are capable of communicating which types of use the copyright holder is permitting the web crawler to make of the content or the extent of the copying the copyright holder will allow.

Again, this appears to be off the mark, conflating a few separate issues. First, it's a combination both of (a) publishing openly online and (b) not using robots.txt that suggests an implied license to index. The court ignores the (a) part, and seems to give much more weight to the argument that it's just (b) being implied. Second, it ignores the fact that this is solely about the implied license to index. There could still be infringement for what's done with the index, but that's separate from the indexing itself.

The court doubles down on this mistake.

There is yet another policy reason against the use of robots.txt protocol to enforce the Copyright Act. The protocol is a helpful innovation that gives instructions to cooperating crawlers. But, in the interest of openness on the Internet, one would expect it to be used only when it is in the clear interest of the website to broadly limit access. It is fair to assume that most Internet users (and many owners of websites) would like crawlers employed by search engines to visit as many websites as possible, to include those websites in their search results, and thereby to direct viewers to a vast array of sites. Adopting Meltwater’s position would require websites concerned about improper copying to signal crawlers that they are not welcome.

Again, that's not true. Sites concerned about improper copying can still use copyright law against the actual improper copying outside of the indexing. It's never the indexing that's the problem, but what that index is used for.

We had also noted, when Meltwater responded to the AP's claims, that it argued that the AP was engaged in copyright misuse. The court dismisses this point quickly. Not only is copyright misuse not established as a copyright defense in the Second Circuit, where the case is being heard, but the court argues that Meltwater has done little to show actual misuse by the AP.

There are numerous problems with this ruling, and I imagine the case will get even more interesting on appeal, as lots of internet companies who rely on fair use for scraping content suddenly need to be paying attention to the specifics of this case.

Filed Under: copyright, fair use, news clipping, search engines, transformative use
Companies: ap, meltwater

Bev Stayart Loses Yet Another Battle Against Levitra, Cialis And Search Engine Results

from the knocking-the-wall-down,-one-head-on-collision-at-a-time dept

Bev Stayart, tireless bringer of lawsuits against various search engines for their supposed besmirchment of her good name by placing it next to words like "Levitra," "Cialis," and various porn-related ads, has batted a solid .000 thus far in her legal career.

In 2009, she sued Yahoo! for violating the trademark on her name (no. really.) with its search results, which often produced listings for porn sites and malware. (She, or her legal counsel/husband, also found time to threaten Techdirt with a lawsuit if it didn't remove certain comments on the original post. Techdirt didn't and the lawsuit failed to materialize.) This suit was dismissed later that year, with the court denying her request to refile.

So, Stayart tried a different tack, suing Yahoo! for violating her "privacy rights." This suit was also tossed. In between filing suits against Yahoo! and having them tossed, Stayart filed another "pissed-off-at-search-engines" suit against Google, this time because her name seemed inextricably linked with Levitra in Google's suggestion box. This suit was dismissed as well, as she again failed to prove that her name was a marketable term eligible for trademark protection. All the while, the obvious solution has continued to elude her --- stop suing and mentioning porn, malware and Levitra in your lawsuits and your name might stop being connected with those terms by search engine algorithms.

The latest court decision keeps her hitless string intact, again finding in favor of Google. Stayart's latest angle was to claim Google "misappropriated" her name because (mostly thanks to her legal efforts), "bev stayart levitra" remains a top search suggestion.

On Wednesday, however, the 7th Circuit Court of Appeals tossed her yet another loss in her lawsuit against Google, upholding a decision made by a district court in 2011. In the appellate case, Stayart argued that her rights under Wisconsin's right to privacy laws had been violated under §995.50(2)(b).

"The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person or, if the person is a minor, of his or her parent or guardian" constitutes an invasion of privacy, the law states.

But the Court disagreed.

"Stayart has not articulated a set of facts that can plausibly lead to relief under Wisconsin's misappropriation laws," the court wrote (PDF).

In fact, the court cited her own previous case against Yahoo!, in which that court found that there had to be a "substantial rather than an incidental connection between the use and the defendant's commercial purpose."

Many have tried but very few have proven (even in friendlier courts) that search engine algorithms just "have it in" for some people, linking them with ED drugs, porn, malware, Russian gang activity, etc. These many "victims" all share the same self-destructive tendency to file and refile lawsuits, with each filing further cementing the link between their names and the terms they'd rather not have connected with them.

But this lesson remains lost on Stayart. It looks like she's ready to step up to the plate again, in hopes of finally getting on base.

Stayart called Ars back, and said that she vehemently disagrees with the decision, and is considering appealing the case to the United States Supreme Court, as well as other suits. However, she noted that her counsel (also, her husband) will make those decisions.

She adds that she feels the decision was "economically-based" and favored the "one percent." I'm really not sure exactly WHY she feels this way, but I'm sure the future will be full of opportunities for her to explain herself. And when the legal paper starts flying again, Stayart will find herself relentlessly pursued across various search engines by her old nemeses, Levitra and Cialis.

Filed Under: associated, bev stayart, lawsuits, privacy rights, search engines
Companies: google, yahoo

German Newspaper 'Snippet' Law Passes: Watered Down, But Still Stupid

from the how-small-is-smallest? dept

For a year now, Techdirt has been following the sorry saga of Germany's attempt to make search engines and others pay for licenses to show even small excerpts from online newspapers. The main motivation seems to be to take money from Google for being successful, and to give it to the German publishers that are struggling.

Even though the idea that newspapers were suffering because of the short excerpts shown as part of search results is absurd, and existing copyright law already forbids unauthorized use of longer extracts, publishers had enough friends in the German parliament to get the "snippets" law pushed through today. However, along the way, a small amendment was made to the text that makes it slightly less damaging. According to the new wording (pdf - German original), quotations will have to be licensed unless they are:

single words or the smallest excerpts

Unhelpfully, no definition for "smallest excerpts" is given, which means there is still considerable uncertainty over just how many words can be quoted without paying a licensing fee. That's bound to have a chilling effect on the use of snippets, as publications err on the side of caution before court cases begin to establish what is and isn't acceptable. Another issue is whether quotations in blogs or on social networks will be exempt: according to the German magazine Der Spiegel they will ("probably", in the case of Facebook). But again, we won't know for sure until cases come to court.

Happily, there is still some doubt over whether the law will ever come into force. According to Der Spiegel again, the SPD (Socialist Party) may be able to overturn the law in Germany's other legislative body, the Bundesrat. Let's hope it succeeds, and saves Germany from the embarrassment of trying to implement such a backward-looking and unworkable law.

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Filed Under: copyright, fair use, germany, newspapers, search engines, snippets

Google's Other Bad Idea: Offering 50 Million Euros To French Newspapers [Updated]

from the is-that-really-wise? dept

Earlier this week we wrote about a strange move by Google: apparently agreeing to pay the French telecoms company Orange extra to deliver its traffic -- thus abandoning the principle of net neutrality it has championed for so long. And now here's another dubious decision: allegedly offering to pay French publishers 50 million Euros in order to settle the dispute over the display of news snippets in its search results:

According to the report, French publishers turned down the €50 million (USD $66.6 million) offer and demanded a figure of €70 to €100 million instead. They also objected to the way Google proposed to disburse the money. The company reportedly offered to spend a third of the €50 million in the form of direct ad purchases while using the rest for commercial advertising partnerships between Google and the publishers. The publishers reportedly complained that too much of the proposed money was contingent on sales figures.

This suggests that Google is trying to frame these payments as more of a partnership with the newspapers than an acquiescence to their demands. That's no surprise, because if it is seen to be paying a license to display copyright material in this case, the pressure to do the same elsewhere will inevitably increase. In fact, it has already adopted this "partnership" explanation for the deal it cut with Belgian publishers last month:

We have reached an agreement that ends all litigation and represents great news for both us and the newspapers. We continue to believe that our services respect newspaper copyrights and it is important to note that we are not paying the Belgian publishers or authors to include their content in our services. From now on, Google and Belgian French-language publishers will partner on a broad range of business initiatives

It remains to be seen whether publishers in France and around the world will be happy to "partner" in this way, or whether some will hold out for a formal recognition by Google that it is paying them for a license to display snippets from their publications. Let's hope not: it would be a truly awful precedent that would undermine not only Google's business model, but much of the Web as we know it.

Update: Right on cue, Eric Schmidt has just unveiled -- you guessed it -- a "partnership" with French publishers:

Today I announced with President Hollande of France two new initiatives to help stimulate innovation and increase revenues for French publishers. First, Google has agreed to create a €60 million Digital Publishing Innovation Fund to help support transformative digital publishing initiatives for French readers. Second, Google will deepen our partnership with French publishers to help increase their online revenues using our advertising technology.

So the price seems to have gone up slightly, from €50 million, to €60 million, plus unspecified amounts to "help increase" publishers' advertising revenue. But no mention of the dreaded "licensing" word in there, so maybe the French publishers blinked, and Google won this time. But expect the issue to come up again in other countries -- Germany, for example -- where Google might not be so lucky.

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Filed Under: france, newspapers, paying to link, payments, search engines
Companies: google

French Hadopi Scheme Gutted; Other Bad Ideas To Be Introduced Instead

from the three-strikes-is-out dept

France's Hadopi graduated response approach, also known as "three strikes", occupies a special place in the annals of copyright enforcement. It pioneered the idea of punishing users accused of sharing unauthorized copies of files, largely thanks to pressure from the previous French President, Nicolas Sarkozy, who seems to have hated most aspects of this new-fangled Internet thing. Sadly, other countries took up the idea, including the UK with its awful Digital Economy Act, New Zealand, Spain and, more recently, the US.

Hadopi hasn't been going too well. Despite putting out some dodgy statistics, the Hadopi agency hasn't really been able to show that the three-strike approach is doing anything to reduce the number of unauthorized downloads. In the two years that Hadopi has been running, only one person has been brought to court -- and he was innocent, but fined anyway.

As we reported, with Sarkozy gone, the new French President and his team are looking for ways to cut the cost of this scheme. Numerama has details of a recent presentation from the French Minister of Culture and her advisor, Pierre Lescure, about the future of Hadopi (original in French) that confirms the "three strikes" approach is likely to be dropped:

[Lescure] strongly suggests that the graduated response will be abandoned, because it is considered illegitimate and ineffective. "It is likely that a significant proportion of Internet users who have stopped P2P downloads have turned to other types of unmonitoried methods (streaming, direct download) rather than legal offerings, whether free or paid," writes Mission Lescure. Sending out e-mails may be not stopped, but it seems certain that the criminal sanctions will be shelved.

That's probably as close as the French government will ever come to admitting that Hadopi is a failure. Unfortunately, it seems that it will be bringing in three other bad ideas instead:

To put pressure on intermediaries. It is necessary "to make hosts more accountable by forcing them to remove promptly illegal content and to prevent their reappearance, and by strengthening international cooperation in order to punish sites that refuse to comply";

De-list illegal offerings. It is necessary "to reduce the visibility of illegal offerings by acting on the listing in search engines, if necessary through legislation";

"Turn off revenue sources for infringing sites (the "Follow the money" approach), by making intermediaries (advertisers, online payment services) liable."

We've seen all these idea elsewhere -- the first time in ACTA, the second in efforts to make Google skew its search results, and the last in SOPA. They're all terrible in their own ways, but it's good to see France apparently realizing that punishing the public is even worse.

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Filed Under: copyright, france, hadopi, intermediary liability, search engines, three strikes

Google Asks Germans To Protest 'Pay To Link' Proposal As It Comes Close To Becoming Law

from the dumb-proposals dept

For a few years now, we've been following attempts in Germany -- mainly driven by newspaper publishers -- to create a bizarre new copyright-like right (specifically a "neighbor right") in "linking" such that a site like Google would have to pay sites that it links to. The bizarre and nonsensical argument is that because a site like Google makes some of its money by linking to sites, those sites "deserve" part of the money. This is problematic for a long list of reasons, not the least of which is it's fundamentally backwards economically. If sites like Google are making money from directing people to other sites, they're making money because they provide a valuable service in helping people find the content, not because of the content itself. It's up to the sites themselves to figure out how to monetize the traffic -- not to run to the government to force others to pay. And, if you think this is just a Google issue, you're wrong. Among the proposals was one that would impact many others, including people posting links on blogs, Facebook, Twitter and other sites.

The final proposal would be wide reaching in impact, and make it ridiculous to run a search engine or any kind of aggregator in Germany:

The new section, if introduced, would provide the "producer of news materials" the general "exclusive right to make said materials publicly available, in whole or in part, for commercial purposes," according to an unofficial translation of the German Government's proposals.

Others would be permitted to provide "public access" to the publishers' material unless those providing that access are "commercial operators of search engines or commercial providers of services that aggregate this content in a respective fashion". News publishers' right to control the commercial exploitation of their work in this regard would extend for a year after publication. Authors of the work would be entitled to be "provided with a reasonable share of the remunerations issuing from the author’s work".

The German government is set to take up the issue on Thursday and Google has realized that maybe it should let folks in Germany know that this proposal would seriously cut into their internet services. As Google accurately notes, if the law passes it will mean "higher costs, less information and massive legal uncertainty." That's what happens when you insist that content providers who fail to monetize traffic somehow "deserve" money from a third party that is helping people find them.

The logic behind this bill makes no sense. Do we require that GPS service providers pay stores for directing people to where they're located? Of course not. The very concept is ludicrous. Yet that's exactly what this bill is doing in Germany.

Most ridiculous of all: if publishers don't like being in Google's results, they can already opt-out. So if this was really "piracy" as the publishers claim, they have a solution already at their disposal. But this isn't about piracy at all, of course. It's about publishers who haven't been able to adapt seeing Google make lots of money and getting jealous. So they're demanding a cut of the money. It's a sad statement on the nature of both publishers and German copyright law that this proposal is even being seriously considered.

Filed Under: copyright, germany, linking, neighboring rights, pay to link, search engines
Companies: google

Confused Irish Newspaper Editorial Argues That Search Engines Need To Pay Newspapers

from the time-to-drop-the-irish-examiner dept

As a few folks sent in, recently the Irish Examiner newspaper had an editorial arguing that copyright law needs to be expanded because, of course, newspapers are suffering. Though, as you look at the details, whoever wrote the article appears to be quite confused:

The scale of the piracy is astounding. In 2010, while every media company in the country shed jobs and cut costs to the bone, a single search engine operating in Ireland offered around 150,000 newspaper articles that cost publishers an estimated €46.5m to generate. Last year that site offered more than 350,000 articles at a cost equivalent to more than €110m. And all without paying one cent to those who created those articles.

This free-for-all has put Ireland’s 8,600 creative enterprises, the 116,000 jobs involved — some 7.5% of GDP and 6.5% of total employment — under a darkening cloud. Multinational corporations, ironically styling themselves champions of free information having stolen it themselves, pretend that they see nothing wrong with hijacking the work of others. They do this to create entities that exist primarily, in a news context, to deliver rather than generate content. To rub salt into the wound these entities are determined to secure advertising revenue on the back of that snatched news content. This is the very revenue that made the gathering of the news possible in the first place.

First of all, they seem to be claiming that search engines that index content, show a snippet and link people to the original content are "piracy." That's crazy talk. Furthermore, while they don't name the "search engine" they claim that it "offered" these articles. Of course, if it really posted all the articles itself, then there is no need to change copyright laws -- the company could already sue them for infringement. However, assuming that they're really talking about Google or just about any other search engine, what they really mean is that the search engines aggregated the content and linked people back to the original. The "cost" to produce those articles is irrelevant to the overall discussion. Yes, it costs money, but it's the job of a business model to bring in even more money. If the business geniuses who run your paper are too clueless to figure out how to monetize the traffic from Google, then perhaps you deserve to go out of business.

In the end, as we've seen elsewhere, this isn't about "piracy" at all. This is about newspapers who don't know how to adapt, and are staffed by completely technologically illiterate folks, who simply see that Google is making money while they're struggling and assume (totally incorrectly) that Google needs to pay them for sending them traffic.

Filed Under: ireland, newspapers, search engines
Companies: google

No, Telling Customers Why Your Product Is Better Than A Competitor's Is Not Trademark Infringement

from the and-judges-should-know-that dept

Every time I read an opinion like this ruling in AR Pillow Inc. v. Cottrell, a little piece of me dies. This is a ridiculously easy case, yet somehow it got all tangled up.

The litigants are rival vendors of similar products to combat baby acid reflux. For a slightly similar dispute involving trademark fights over baby products, see BabyAge v. Leachco.

The plaintiff is largely complaining about text on the defendant's website explaining why the plaintiff's product isn't as good as the defendant's. From my perspective, the explanation doesn't constitute a trademark "use" at all because the trademark is being used as a referent. See, e.g., Naked Cowboy v. CBS, 2012 WL 592539 (S.D.N.Y. Feb 23, 2012). Thus, the court should dismiss the trademark claim for non-trademark use. But if the court doesn't do that, at least it should dismiss as a nominative use. See, e.g., 1 800 GET THIN v. Hiltzik. There is absolutely no question that the defendant's reference qualifies as a nominative use under Ninth Circuit law. Yet, and here's where a piece of me dies, the opinion doesn't discuss nominative use AT ALL. What???

Instead of addressing the two most obvious grounds, the court engages in doctrinal contortions to fit this case into a standard likelihood of consumer confusion (LOCC) analysis. As I've explained elsewhere, the multi-factor LOCC test simply makes no sense when a third party is using the trademark editorially as a referent. My paradigmatic example is the Ballysucks case, where the LOCC analysis is ridiculous because the court is trying to compare a vendor with a griper who registered a "sucks" domain. The LOCC test doesn't work any better here. The judge almost seems to know that the LOCC test isn't the right test, but he doesn't seem to know what else to do.

Fortunately, the judge overcomes his shaky analysis by reaching the right result, concluding that there's insufficient evidence of consumer confusion. Yay for good outcomes. But we need to find better ways to make it clear trademark law should not play a role in situations like this. For more on that, see my Online Word of Mouth paper.

One more point: the court's technological discussions are a mixed bag. On the plus side, citing Network Automation and Matt Cutts' blog post/video, the judge rejects the plaintiff's claims over keyword metatags because Google ignores them. But then the judge launches these groaners:

"there is no evidence in the record that use of the term AR Pillow in Google or other search engine currently leads to defendant's website"

and later

"Consumers who search for AR Pillow today are not presented with defendant's website in the rankings"

Oh god, not this again. Please, let's kill this meme RIGHT NOW. Relative placement of search engine results is a HORRIBLE way to evaluate trademark disputes. First, as I explain here, the junior user doesn't control placements--the search engines do. Second, in my post on the Bitchen Kitchen litigation, I explain technological reasons why this is a terrible idea, including search results personalization, the fact that results change minute-by-minute, and the fact that different search engines rank their results differently. Judges, I beg you, please don't go down this wormhole.

Filed Under: competitors, search engines, trademark
Companies: ar pillow, cottrell

UK Labour Party: Let's Just Get On With Kicking People Offline Over Copyright Infringement

from the give-us-data-not-dogma dept

As Techdirt reported at the time, the UK's Digital Economy Bill was rammed through Parliament, without proper scrutiny or even much democratic process, in the dying hours of the previous government. Since then, the implementation of the Digital Economy Act has moved forward relatively slowly. That's partly because there have been a series of legal challenges from ISPs concerned about its legality (and likely cost for them). In addition, it made sense for the current UK government to wait for the completion of the Hargreaves report on copyright in the digital age before proceeding.

But the people who drew up the Act and its punitive approach to tackling unauthorized file sharing -- the UK Labour Party -- have no doubts; they want extreme measures brought in now. Here's what Harriet Harman, the party's deputy leader, thinks the UK government should do:

implement the Digital Economy Act under a clear timetable including getting on with the notification letters and publishing the code of practice

lead and set a deadline for agreement in the industry for site blocking, search engine responsibility and digital advertising

That is, she wants people thrown off the Internet for allegedly sharing files (the three-strikes "notification letters"); censorship ("site blocking"); search results to be doctored ("search engine responsibility"); and extra-judicial punishment (cutting off revenues from "digital advertising".)

Of course, she wants all this without producing any specific evidence that it would actually help the music industries, or any awareness that innocent people might suffer as a result. That's to be expected, since the Digital Economy Act was drawn up in exactly the same way: without any research that its measures were appropriate, proportionate or effective.

To be fair, Harman does quote a few figures in her speech, such as this one:

Research by [the University of Hertfordshire] and UK Music found that:

Over 60% of 14-24 year olds were downloading music without paying for it.

Of course, that figure is pretty meaningless, since it includes people who have downloaded just once as well as those who download frequently. Moreover, they may have downloaded without paying in order to sample before before buying, or because they weren't able to buy what they wanted -- something the research quoted by Harman explicitly recognizes (pdf):

40% said their main reason for filesharing is to save money or because it's free. 23% said they did so to get hold of music they could not buy (for instance, pre-releases, DJ mixes) and 22% to experiment and try-before-they-buy.

So at most, 40% of that 60% were downloading music because it was free -- only 24%, which is rather different from 60%. Not only that, but the same research reported:

85% of illegal downloaders say they would be interested in paying for an unlimited, all-you-can-eat download service.

In other words, the vast majority of these unauthorized downloads are because of a failure to offer a product that people would gladly pay for.

Here's another number she mentioned:

Research from Harris Interactive found that:

3/4 of all digital music obtained in 2010 was downloaded illegally.

This is what the research report, commissioned by the British recorded music industry body BPI, said (pdf):

Harris conservatively estimates that 1.2bn tracks will be illegally downloaded in 2010 -- equivalent to a stack of CDs some 74 miles high stretching well into space.

Illegal downloads represent three quarters of all music obtained digitally, when set against BPI's prediction of 370m tracks in total across singles and albums bought legally by the end of this year.

That is, it's an estimated figure, but without any methodology given for how it was obtained. Here's another estimate from the same report:

Harris Interactive calculate that the total number of people in the UK illegally downloading music on a regular basis is 7.7m.

That's almost exactly the same figure that Jupiter Research obtained in its own research on the subject. Harman used another claim from that company in her speech:

Of course every illegally downloaded track would not translate into one which was paid for but even taking that into account Jupiter Research estimate:

That revenue lost to the recorded music industry last year through piracy was £236m.

Unfortunately, neither the research nor its methodology is publicly available as far as I can tell, making it hard to judge how reliable that figure is. But we do know something about Jupiter's estimate elsewhere that there were 7 million people downloading in the UK. As Techdirt noted at the time, this figure had been extrapolated from just 136 self-reported filesharers, using some pretty shaky logic. A more realistic number is likely to be closer to 3.9 million -- rather less than the Harris Interactive estimate quoted above.

The final figure that Harman quotes is in many ways the most important:

And despite the success of UK music, piracy has contributed to the fall in revenues of UK record labels - down 1/3 since 2004.

This, in a way, is the key "justification" for the harsh measures that Labour believes are "necessary": the UK music industry is suffering because of piracy, and must be saved at all costs. Unfortunately for Harman -- and for Labour's logic -- that's simply not true. As Techdirt reported, even the industry's own economists admit that the music industry is growing, not shrinking; the industry doesn't need "saving".

Although it's welcome that Harman tries here to justify her call for guilt upon accusation, censorship and extra-judicial punishments with some figures, it's significant that none of them stands up to scrutiny. In fact, there is no independent evidence whatsoever that the kind of measures the Labour Party embodied in the Digital Economy Act are either needed or effective. It's sad to see Harman continuing to suggest otherwise: surely it's time to move the debate on from one based on rigid dogma to one using real data?

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Filed Under: censorship, digital economy act, internet access, labour, search engines, site blocking, three strikes