The Google Book Project: An Update

I've decided to use this week's blog entry to give everyone an update on Google's massive book scanning project. After searching for and reading news stories about copyright infringement for ten weeks it seems to me like this story is the most talked about and it is definitely the only copyright story which has intelligent people who feel very strongly on two sides of the debate. As I reported in an earlier post Google has decided to attempt to make most of the world's books available to the public online at any time. When Google announced this plan to make so many out of print books available online they were sued for copyright infringement by various entities representing authors. Google had decided to make a profit from the distribution of some of these books without making any payments to the authors. Many of the out of print books in question have been out of circulation for many years and it is unclear who holds the copyrights to these works. These books are called orphan books.

After the lawsuit was initiated Google negotiated with the author's guild, a group that represents American authors, and others in order to come to an agreement that would allow Google to publish the books in exchange for assurances that royalties would be paid to known copyright holders. Many groups were unhappy about this proposed settlement and the Justice Department stepped in and told Google that the deal was illegal and needed to be revised. Please see the previous post "Google is stealing orphans" for the full backstory.

This last week Google and the Author's Guild submitted a revised agreement to a federal judge for approval. Google stepped back on some issues and decided to fight on some others. First of all Google has decided that its agreement with the Author's Guild should only apply to books from the U.S., the U.K., Canada, and Australia. This is significant because some of the fiercest backlash to the proposed deal had come from foreign governments like France, Germany, and especially China. Earlier one of my fellow students commented on my blog and asked me if China ever gets any of its intellectual property stolen, but the Chinese have apparently avoided becoming a victim in this case. This is ironic when you consider the fact that China is the world's biggest infringer.

Google has also agreed to change its plans for the funds obtained from the sale of "orphan works". Instead of holding the funds itself for five years as originally suggested, Google has agreed to turn the funds over to a third party fiduciary who would hold the funds for ten years and then donate them to charity. 25% of the orphan money would go towards trying to find these missing authors or their heirs. So at least in the new agreement Google has promised to try and find to the orphans' real parents after stepdaddy Google has sold the kids down the river. Google also explicitly promises in the new agreement to allow its competitors such as Barnes and Noble and Amazon a right to access the online database and to make sales from it as well.

This is a story where our government actually seems to have functioned pretty well. The Department of Justice stepped in in this case and stopped Google from obtaining an illegal monopoly over the world's printed knowledge, and still found a way to allow many of these fantastic books to be accessed by the public.

Here are some links to great web pages about this story. I have a link to Google's official statement about the new agreement and a link which leads you to the actual agreement submitted to federal court.

http://searchengineland.com/revised-google-book-settlement-filed-29814

http://www.openbookalliance.org/2009/11/is-the-google-settlement-worth-the-wait/

http://www.businessweek.com/the_thread/techbeat/archives/2009/11/google_books_sc.html

http://googlepublicpolicy.blogspot.com/2009/11/modifications-to-google-books.html

Is Doing Your Homework Copyright Infringement?

Hey guys, need a new excuse for your professors? Have you run out of "dog ate my homework" stories. Here's a new one for you. "I couldn't complete the assignment, because I didn't want to be guilty of copyright infringement."

There is a lot of chatter on the net this week about this case (S.D.N.Y. 2009) recently decided in U.S. district court. In this case a textbook publisher successfully sued a person who was selling answers to questions from the textbook via the internet. The publisher did not own the rights to the answers, but instead it held a copyright on the textbook which contained the questions. However the court ruled that the answer sheet was a "derivative work". A derivative work is defined in 17 U.S.C. § 101:

"A “derivative work” is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”."

Basically a derivative work is one that is largely based on some other copyrighted material. It does not stand on its own, and is dependent on someone else's work for its substance. In this case the court ruled that the defendant's document which was composed of answers to the questions in the textbook was a derivative work. He could not have answered the questions without the textbook and the answer sheet did not make sense without the textbook.

So my fellow students, what does this mean to us? When we answer questions out of our textbooks are we breaking the law? If this were true than based upon all the homework we are assigned I'd say some of these paralegal instructors are accomplices. One of the bloggers who commented on this case said we should all ask for liability waivers before we agree to submit answers to questions from a copyrighted source. I think this is a little extreme because most of us are not mass producing our homework assignments and distibuting them to other students. I believe the defendant in this case was found guilty of infringement because he was selling his answers and making a profit from them. This is what drew the eye of the textbook publisher and federal prosecutors. Still it makes you think about the fact that we students frequently produce derivative works that we would have to be careful about publishing or profiting from.

Here are some links to blogs about this case,

http://www.exclusiverights.net/2009/10/court-finds-that-answers-to-textbook-questions-are-an-infringing-derivative-work/

http://www.techdirt.com/articles/20091030/1549296745.shtml

We Are the Knights Who Say, "See You in Court Guv'nor"

The political race for Governor of New Jersey is neck and neck. It has been an extremely close battle between former Senator and incumbent Governor John Corzine and his challenger Chris Christie. Each candidate had some advantages entering the race. Mr. Corzine is the incumbent and a democrat in a state where there are 700,000 more registered democrats than republicans. He has former President Clinton and President Obama campaigning for him. Mr. Christie was appointed as U.S. Attorney by President George W. Bush and has developed a persona as a straight shooter and a leader who eliminates corruption.

However both candidates have some factors working against them. Mr Corzine's first term was characterized by some of the worst economic conditions in the history of the State of New Jersey. The economic collapse cannot be solely blamed on the governor, but the fact that he is a former chairman at Goldman Sachs isn't helping him distance himself from New Jersey's banking crisis. Mr. Christie has been forced to answer questions regarding his relationship with some of his family members who are convicted mobsters. So the people of New Jersey must choose between A former Senator/Goldman Sachs chairman or a U.S. Attorney/Gangster. It's no surprise that the race is very close. Citizens of New Jersey can't decide which crook is worse.

But now there is a new factor. There is some fresh dirt just dug up, and it's our favorite kind, politicians committing copyright infringement. Apparently Mr. Christie used some copyrighted material in one of his campaign ads. I love when I read these stories about politicians who steal copyrighted material and use it in campaign ads. Since I've been doing this blog I've realized, this happens all the time. Every week there is a new story about a politician using copyrighted music, photos, and even writing without proper permission to do so. This is even more disturbing coming from Mr. Christie, a former U.S. Attorney who has been practicing law for 22 years.

So what was the copyrighted material in this case? Is it a song in a campaign commercial, a photo in a campaign poster, or a plagiarized quote in a campaign speech? Nope, it's a Monty Python comedy sketch. Mr. Christie uses Monty Python in an attempt to humiliate Corzine in an attack ad. It's actually kind of funny and surreal at the same time. Monty Python in a political ad for Governor in a pretty large and influential state.

Of course no one asked the guys from Monty Python if it was O.K. to use the skit and they are not happy. They have threatened to sue Mr. Christie and seem pretty serious about it. Maybe this will be the last straw in a very close election and Mr. Christie will be sent packing, but he's not dead yet. Don't put him in the cart.

Here are some links to the story, the first story has a link to the ad.

http://www.huffingtonpost.com/martin-lewis/chris-christie-rips-off-m_b_341598.html

http://www.philly.com/philly/wires/ap/news/state/new_jersey/20091101_ap_gopschristiesaysgovernorraceisaboutturnout.html

From Russia With Love

Well comrades copyright infringement is all good when you're the one doing the taking, but when the tables are turned you just get all red.

One of the world's biggest markets for counterfeit goods exists in Russia. For countless decades Russians have laughed in the face of international copyright law. The Russian people may have to wait in line for hours for bread, but they can get the new Jay-Z album on any corner. Russian copyright infringers have made millions selling copyrighted music, movies, and computer programs from around the world, and for the most part the Russian government has turned the other cheek.

But now the shoe is on the other foot and the Russians are mad. One of the nations most beloved national treasures is being illegally copied and mass produced in foreign facilities around the globe. The Russians are afraid that these knock-offs are hurting the reputation of one of its most successful products.

So what could this fine Russian product be you ask? Space Secrets? A designer vodka? Nope it's the 1947 model of the Kalashnikov assault rifle, commonly referred to as the AK-47. This Russian export has been a huge success for over sixty years. It is an incredibly versatile weapon that is sought after by fighting men throughout the world. Unfortunatley for the Russians it is also produced around the world now. Many countries, including China have been illegally producing counterfeit AK's for the black market for years. The Russians are cracking down and pulling out all diplomatic measures in an effort to protect the AK's good name and good profit potential.

Here's a link to the story. http://www.kansascity.com/news/world/story/1527814.html

Even Hope is Stolen

AP photo-left / Fairey's image-right






Yes We Can. Yes we can violate copyright law through the creation of campaign posters. The situation looked bleak for world renowned street artist Shepard Fairey this week when his copyright infringement lawsuit took a turn for the worse.

Mr. Fairey gained worldwide popularity after he created an iconic image of then presidential candidate Barack Obama. The artist took a photo of Mr. Obama which showed him with his head tilted skyward, enhanced it with some red, white, and blue highlights and posted the word HOPE underneath in bold letters. The now famous image has been used on thousands of campaign posters, tshirts, bumper stickers, and even stationary. The artist made a significasnt profit from the sales his image generated.


But followers of I Know My Copyrights must know that this tale of the American dream doesn't end happily. Seems Mr. Fairey used a copyrighted photograph to generate the image of President Obama that led to his new found riches. Unfortunately for him he used copyrighted material belonging to an organization who takes copyrights very seriously and has the resources to pursue would be infringers with great zeal, the Associatead Press.


Seems the AP found the hope poster image to be strinkingly similar to an AP photograph that showed candidate Obama seated next to George Clooney. The AP asked Mr. Fairey for credit and compensation for the use of their photo and he answered them with a lawsuit claiming that fair use exemptions gave him the right to use the photo. The AP countersued for copyright infringement.


Mr Fairey further compounded the matter by initially lying to his attorneys and everyone else about the true source photograph for the image. He initially claimed that he had in fact used a different photograph to create his poster and even produced evidence which he gave to his attorneys. This week Mr. Fairey admitted to falsely creating this evidence after the lawsuit had begun and deleting files from his computer which would have led investigators to the true source photograph, the one owned by the AP. Now Mr. Fairey's attorneys plan to ask the court permission to step down as his counsel because of his deception.


Let this be a two-headed lesson to us all, 1.Do not use copyrighted material to make a profit for yourself and 2. if you do, do not lie to your attorney about it.


Here are some links to the story:

http://artsbeat.blogs.nytimes.com/2009/10/16/ap-says-shepard-fairey-lied-about-hope-poster/



http://www.examiner.com/x-8310-Trendy-Living-Examiner~y2009m10d17-Shepard-Fairey-lied-about-Obama-Hope-poster-image-Photo-Gallery--Video



http://www.theage.com.au/world/i-lied-poster-artist-admits-20091018-h2vw.html

French President Sarkozy- A Copyright Hypocrite?

French President Nicolas Sarkozy has been an extremely vocal public advocate for those who hold copyrights. He has been the key supporter of a piece of French legislation which would mandate some of the world's most severe punishments for those found guilty of illegally pirating copyrighted material. The proposed law contained a "three strikes and your out" policy which would literally kick people off the Internet. If the law was in effect a French citizen who was proven guilty of copyright infringement three times would not be allowed back on the Internet. The French President championed the efforts which eventually got this bill passed, but it was later declared unconstitutional by the French Constitutional Council.

Unfortunately Mr. Sarkozy has now been twice accused of stealing copyrighted material himself. His first infringement came at the expense of the popular French music group MGMT. The President's political party UMP repeatedly used portions of the group's song "Kids" at some political rallies and in some web and television commercials. UMP party officials admitted to using the material because of its appeal to young people. The only problem was they never bothered to obtain permission from the band to use the song. The same party which was fighting to throw piraters off the Internet was pirating music.

http://www.guardian.co.uk/music/2009/feb/24/nicolas-sarkozy-party-compensates-mgmt

Reasonable minds would believe that the incident with MGMT would have heightened the attention of the President, his staff, and other supporters of the "three strikes" law. I mean it must have been pretty embarrassing to be threatened by some French rockers in their early twenties. Maybe somebody should have sent out a memo. "Attention All Staff: Please Refrain from Stealing any Copyrighted Material, as it may serve to make us look like idiots"

That memo was never sent. Early this month the President had scheduled a conference with some French diplomats where he planned to distribute a short film about himself. He paid the distributor for 50 copies of the DVD but the conference was attended by about 400 diplomats. This situation did not present a problem for the president's competent staff however; they just made a few copies. When the story broke the president was caught holding the bag again.

Guess he only has one strike left.

http://www.techdirt.com/articles/20091008/2344176470.shtml

http://www.huffingtonpost.com/2009/10/08/nicolas-sarkozy-french-pr_n_313723.html

Hey, Get Your Hand Out of My Honeypot

U.S. District Judge Florence-Marie Cooper dismissed a pair of copyright infringement lawsuits against Disney this week. Disney was in court in an attempte to resolve its long running dispute with the heirs of Mr. Stephen Slesinger. Mr Slesinger purchased the rights to A.A. Milne's "Winnie the Pooh" characters in 1930 and later sold them to Disney in 1961 in a deal that promised Mr. Slesinger future royalties when Pooh Bear and his friends were used in the future.

The Slesinger family started a lawsuit against Mickey and pals in 1991 when they began to feel they were getting cheated out of their part of the agreement reached with Disney in 1961. The family felt that Disney was using unfair accounting procedures to reduce the royalty payments made to the family. The disputed amount involved a discreptency of $700 million. Disney claimed that they had legally acquired the rights to Pooh in 1961 and asked the judge to put an end to the royalty payments made to Mr. Slesinger's estate.

The case started in state court as a breach of contract lawsuit, but was thrown out after 13 years of litigation because of misconduct by private investigator hired by the Slesingers. Apparently the p.i. broke into a Disney facility and stole some documents that the Slesingers planned to use to support their claims. The courts do not accept breaking and entering as a legitimate form of discovery and as a result the breach of contract lawsuit was dismissed. The only avenue left for the Slesingers was a copyright infringement lawsuit in federal court. Although Judge Cooper ruled that Disney held the rights to the loveable, pudgy bear, she said that royalty payments to the Slesingers would continue.

When I look around my house I get a sense of the value of a copyright. Without much effort I was able to find a stuffed Pooh bear and a stuffed Tigger, three childrens' books featuring Pooh and his friends, a Pooh blanket, and even a Pooh toothbrush. If my house is in any way representative of the typical home of a small child in America then this Pooh merchandising empire is a goldmine. Bloomberg News says that Pooh is Disney's single most profitable character (take that Mickey). I wish I could get ten percent of the Pooh action in my own home, so I can understand why copyright law is crucial when it comes to protecting assets like the Pooh franchise.

Here are two links to stories about the Pooh case:

http://www.kdvr.com/entertainment/la-fi-ct-disney29-2009sep29,0,3942585.story

http://www.reuters.com/article/industryNews/idUSTRE58S08G20090929