E-books, orphan works, and e-reserves have all been central issues in litigation. Get an update on cases and other pending copyright developments that affect libraries, users and access to information.
Presenter Bio: Mary Minow is currently the holder of the Follett Chair in Library and Information Science at Dominican University. She is also a member of the National Museum and Library Services Board. She manages the Stanford Copyright and Fair Use website and founded the Library Law blog. In addition, she serves on the board of the Electronic Privacy Information Center, as well as the board of the Freedom to Read Foundation.
1. Hot Issues in Copyright
Ebooks, orphans,
first sale …
Graduate School of Library and Information Science
Dominican University October 30, 2013
Presented by
Mary Minow, J.D., A.M.L.S.
LibraryLaw.com
6. Lending Content
Copyright v. Licenses
PRIVATE CONTRACT
Specific Copyright
overrides copyright
Exception: law
(almost always)
FIRST SALE
7. What is Copyright FIRST SALE?
Loan books
Sell used books
Copyright Law
17 U.S.C. Sect. 109
8. Digital First Sale?
Outdated law.
Rights triggered when
copy is made, even
if original is deleted.*
*may make INCIDENTAL OR FAIR USE argument, depending on circumstances
9. Digital First Sale?
Outdated law.
Rights triggered when
copy is made, even
if original is deleted.*
*may make INCIDENTAL OR FAIR USE argument, depending on circumstances
10. Digital First Sale?
Outdated law.
Rights triggered when
copy is made, even
if original is deleted.*
*may make INCIDENTAL OR FAIR USE argument, depending on circumstances
12. First Sale: Sell Used e-files?
A right to sell used digital
music?
https://www.redigi.com/
March 2013 Partial summary
judgment for plaintiff
new copy made,
even if old was deleted
Redigi 2.0 direct from iTunes to
locker
https://www.redigi.com/
Neew!
N w!
2014
Capitol Records, LLC v. ReDigi Inc., No. 12 Civ. 95 (RJS), 2013 WL 1286134 (S.D.N.Y. Mar. 30,
2013)
RSS feed at
http://dockets.justia.com/docket/newyork/nysdce/1:2012cv00095/390216/
13. First Sale: Supreme Court
2013
Are copies printed abroad subject to First Sale?
Yes.
Library Copyright Alliance cited in opinion.
Kirtsaeng v. John Wiley& Sons, Inc., 133 S. Ct. 1351 (2013); See also First Sale Fast Facts for
Libraries / Library Copyright Alliance http://www.librarycopyrightalliance.org/bm~doc/lca-tpfirstsale18jan13.pdf
14. First Sale: Supreme Court
2013
Are copies printed abroad subject to First Sale?
Yes.
PTO : :impacts right to
PTO impacts right to
sell abroad
sell abroad
Reexamine legislatively
Reexamine legislatively
Library Copyright Alliance cited in opinion.
Kirtsaeng v. John Wiley& Sons, Inc., 133 S. Ct. 1351 (2013); See also First Sale Fast Facts for
Libraries / Library Copyright Alliance http://www.librarycopyrightalliance.org/bm~doc/lca-tpfirstsale18jan13.pdf
19. Douglas County Libraries and Califa:
Statement of Common Understanding
Uses copyright
law, not license
Describes how
copyright law
applies
One userOne loan
20. LITIGATION: Hathi Trust
Book Scans as FAIR USE
OK for
preservation
searching
text mining
print disabled users
Now on appeal.
Orphan works program suspended,
not currently at issue
Authors Guild v. HathiTrust
21. LITIGATION: Google Books
Scanned over 20 million books
with library partners
Search “snippets”
2005 Authors and publishers sued Google
Proposed settlement:
BOOKS RIGHTS REGISTRY (sell orphans)
Court REJECTED
Current status:
publishers settled
authors have not
Not at issue:
2 million public domain books
2 million previews with publisher agreements
Authors Guild v. Google
24. Opportunity for Public Comment
Deadline: November 13
•
Benefits of First Sale? Experience in Digital Market?
•
Possible to share books with friends? Second hand texts for students?
•
Alternatives to incorporate into digital market?
•
Technology updates since Copyright Office First Sale study in 2001?
•
Markets or users that warrant particularized treatment?
Department of Commerce’s Internet Policy Task Force
Public Meeting Dec. 12th Ronald Reagan Building, Washington, DC
http://www.ntia.doc.gov/federal-registernotice/2013/request-comments-departmentcommerce-green-paper-copyright-policy-creat
Federal Register Docket 130927852-3852-01
26. E-Reserves
COURT (May 2012):
26 not registered or de minimus
44 FAIR USE
5 Infringing
Look to amount and market harm
Rejected CLASSROOM GUIDELINES
Reasonable limits:
One chapter of book with 10+ chapters
10 % of book less than 10 chapters
See ARL Issue Brief by
Brandon C. Butler
http://www.arl.org/bm7Edoc/gsu_is
suebrief_15may12.pdf
Appeal arguments week of Nov. 18, 2013 in Atlanta
Cambridge University Press v. Becker
27. Streaming Videos:
UCLA Case
UCLA converted DVDs to streaming
for in course management system
November 2012: Court found it could
be FAIR USE – the streaming did
not substitute for purchase and did
not cause market harm.
Assn for Information Media & Equipment v. University of California
http://www.nacua.org/documents/UCLAStreamingMediaCopyright2012.pdf
http://dockets.justia.com/docket/california/cacdce/2:2010cv09378/489296/
28. May We Show YouTube Video?
Copyright and YouTube Terms of Service
Copyright Law – Specific exception
OR MAKE FAIR USE CASE
Performance by instructors or pupils in faceto-face teaching activities of nonprofit
educational institution in classroom or
similar place devoted to instruction
See also TEACH Act for distance ed
17 U.S.C. Sect. 110(1)and (2)
30. YouTube Terms of Service
4. General Use of the Service—Permissions and Restrictions
YouTube hereby grants you permission to access and use the Service as set forth in these Terms of Service, provided that:
A. You agree not to distribute in any medium any part of the Service or the Content without YouTube's prior written
authorization, unless YouTube makes available the means for such distribution through functionality offered by the
Service (such as the Embeddable Player).
B.
You agree not to alter or modify any part of the Service.
C. You agree not to access Content through any technology or means other than the video playback pages of the
Service itself, the Embeddable Player, or other explicitly authorized means YouTube may designate.
D. You agree not to use the Service for any of the following commercial uses unless you obtain YouTube's prior written
approval:
the sale of access to the Service;
the sale of advertising, sponsorships, or promotions placed on or within the Service or Content; or
the sale of advertising, sponsorships, or promotions on any page of an ad-enabled blog or website containing
Content delivered via the Service, unless other material not obtained from YouTube appears on the same page
and
is of sufficient value to be the basis for such sales.
E. Prohibited commercial uses do not include:
uploading an original video to YouTube, or maintaining an original channel on YouTube, to promote your business
or artistic enterprise;
showing YouTube videos through the Embeddable Player on an adenabled blog or website, subject to the advertising restrictions set forth above in Section 4.D; or
any use that YouTube expressly authorizes in writing.
(For more information about what constitutes a prohibited commercial use, see our FAQ.)
http://www.youtube.com/t/terms?hl=en
The two main methods of ◊calculation are as follows: (a) payment on the basis of how often an author’s works are lent out; and (b) payment per copy of an author’s work held in libraries
The two main methods of ◊calculation are as follows: (a) payment on the basis of how often an author’s works are lent out; and (b) payment per copy of an author’s work held in libraries
The two main methods of ◊calculation are as follows: (a) payment on the basis of how often an author’s works are lent out; and (b) payment per copy of an author’s work held in libraries
The two main methods of ◊calculation are as follows: (a) payment on the basis of how often an author’s works are lent out; and (b) payment per copy of an author’s work held in libraries
not new, persistent copies, but incidental copying to a lawful use.
In the context of cross border transactions, the relationship between the fi
rst sale doctrine and the importation right of U.S. law (defined in the Copyright Act as part of
the distribution right) has been the subject of litigation Differing interpretations in
the courts were recently resolved by the Supreme Court in a holding
that goods lawfully made and purchased with the authorization of the copyright owner anywhere
in the world can be resold within the United States
.
PTO Green Paper: While the case did not directly raise the issue of online application of the first sale doctrine, the Court’s decision could have an impact on the ability of right holders to offer their works at different prices and different times in different countries , 198 and may result in legislative reexamination of the doctrine as a whole
In the context of cross border transactions, the relationship between the fi
rst sale doctrine and the importation right of U.S. law (defined in the Copyright Act as part of
the distribution right) has been the subject of litigation Differing interpretations in
the courts were recently resolved by the Supreme Court in a holding
that goods lawfully made and purchased with the authorization of the copyright owner anywhere
in the world can be resold within the United States
.
PTO Green Paper: While the case did not directly raise the issue of online application of the first sale doctrine, the Court’s decision could have an impact on the ability of right holders to offer their works at different prices and different times in different countries , 198 and may result in legislative reexamination of the doctrine as a whole
What are the benefits of the first sale doctrine? And to what extent are those benefits currently being experienced in the digital marketplace?
To what extent does the online market today provide opportunities to engage in actions made possible by the first sale doctrine in the analog world, such as sharing favorite books with friends, or enabling the availability of less-than-full-price versions to students?
If the market does not currently provide such opportunities, will it do so in the near future? If not, are there alternative means to incorporate the benefits of the first sale doctrine in the digital marketplace? How would adoption of those alternatives impact the markets for copyrighted works?
Are there any changes in technological capabilities since the Copyright Office’s 2001 conclusions that should be considered? If so, what are they? For example, could some
9 Id. at 36 10 Id.
8
technologies ensure that the original copy of a work no longer exists after it has been
redistributed?
To what extent are there particular market segments or categories of users that may
warrant particularized legal treatment?
How will the Supreme Court’s decision in Kirtsaeng v. John Wiley & Sons, Inc., 133
S.Ct. 1351 (2013), impact the ability of right holders to offer their works at different prices and different times in different online markets? How will any such changes impact the availability of and access to creative content in the United States and elsewhere
http://notice.usa.gov