Archives for category: Copyright

This legal interlude, fantasizing about library terms of supply, all provided a nice little flurry of fun. And now it’s over.

Publishers Weekly reports on the end of Association of American Publishers’ lawsuit against the State of Maryland about their law attempting to force publishers to sell ebooks to libraries at discounted prices. The judge decided not to bother to issue an injunction forbidding Maryland from doing this: that the “State never enforced the law and represents it will not enforce it in the future is an important factor bearing on whether the Court should take the additional step to enjoin the State from enforcing the Act. The Court has declared the Maryland Act unconstitutional and may reasonably assume the State will abide by the declaration.” I suppose if the State changes its mind and really tries to make publishers sell ebooks cheaply to libraries, an injunction can easily be obtained.

Now the court has ruled in favor of the AAP, indicating that Maryland, or any state, cannot just decide to override laws passed by Congress — in this case the copyright law — one can perhaps imagine that this would be the end of such legislation. But as Publishers Weekly told us in February “Library e-book bills are now pending in five state legislatures, MassachusettsRhode Island, IllinoisTennessee, and Missouri, and such bills have already passed unanimously in Maryland and New York.” Subsequently Connecticut joined the queue. The Governor of New York already vetoed that bill, and I don’t know where the other states stand, as well as any others who may have found the ebook bandwagon irresistible, but basic equity seems pretty clear. Prices are determined by the seller: if you don’t like it, don’t buy it.

Now of course you can see why legislators would favor bills like this, whatever their chances of success. Makes them look like they are sticking up for the rights of their constituents without much chance of their having to do anything about it. But to me, any law or lawsuit based upon the words “reasonable prices” must be doomed: one man’s reasonable is another man’s exorbitant, is another man’s way too cheap. Pricing of ebooks for libraries still remains in flux: it hasn’t been all that many years after all. A solution needs to be negotiated not litigated or legislated or enforced. If librarians want their customers to be able to borrow ebooks, then the price they pay for them has (obviously) got to be a price publishers and authors are willing to receive. You can’t in any price negotiation say “This is ridiculous, I refuse to pay more than this much”. Well of course you can, but you have to expect your negotiating partner to walk away from the table, which just leaves you high and dry.

Let us take for an instant the extreme position — how damaging to the world would it actually be if ebooks could not be borrowed from libraries at all? To publishers? Not a bit: or if at all, very little. After all, the publisher would in theory rather that every reader should buy their own copy (even of a printed book — though of course everyone has bought in on the social desirability of a library system where barriers to reading are at least not financial). To authors? Maybe a little: it’s always nice to have another reader, even one who’s a non-buyer. To libraries? Maybe a bit annoying, especially if many people protest and start bending the librarian’s ear. To readers and library users? It’s just a matter of money. If I have to pay, will I nevertheless still read? Well of course that depends — and there always remains the free physical library book as an option. But in no way does the world as we know it cease to function if I can’t get a free ebook from the library. I am not advocating such a position. Nor is the publishing industry even thinking of such a thing, although it might reduce tensions between publishers and an important market segment.

Bite your tongue ye commentators, and be patient: a pricing solution will be reached. Surely it’s obvious that futile lawsuits are not a great way to win friends and influence your suppliers. I’m no lawyer, and have to assume that lawyers must have advised all these states that there’s some ground for proceeding, mustn’t they? — but just what ground that is I’ve no idea. Just because I wrote a book and people would like to read it for free, why must I be made to supply it at a cheap price to my local library? This doesn’t seem to me any more reasonable than that because eating is important to the public, farmers should be required to sell meat and milk at discounted prices. Now of course we have to recognize, yet again, that this “movement” is all based upon the erroneous “common knowledge” that ebooks cost nothing to produce! THEY DON’T.

In Libraries and ebooks I previously beat the drum of getting ebooks out of the library and having publishers “rent” them to readers.

See also Mandatory ebook licenses for libraries?.

If you hit Command C and copy someone else’s words, then paste them, and go through the quote and edit it into “your own words”, are you in fact indulging in plagiarism? PlagiarismToday says yes in their post “Why you can’t make someone else’s words your own”. Jonathan Bailey has devised a procedure called Cleanroom which is designed to help writers avoid plagiarism. Given that the main edict is “don’t copy and paste” this might seem a bit circular. Mr Bailey’s point about avoiding copying and pasting is that it’s copying not writing. OK. More importantly, more riskily, if you do a lot of it you will almost inevitably miss changing some of your pastings into “your own words”. These sentences, even if you do remember to edit them, will of course not really be “your own words” — they are someone else’s thoughts, disguised so they can pass as your own.

Notwithstanding, I have to confess to doing this from time to time. I do believe that what I copy and edit are always fairly short bits: maybe a full sentence. I believe that I do it so that I won’t get the argument wrong more than just to reproduce the thought. I think (and hope) that my editing is always pretty extensive. Oftentimes, if it just looks like it’ll be too much of a hassle to change it all, I do enclose the resultant paste in quotation marks, and attribute it — which is obviously the “right” thing to do.

Copy and paste is almost certainly what led to a steady increase in the length of manuscripts submitted to publishers (at least to academic publishers) towards the end of the last century. In the olden days if you added a couple of sentences in the middle of Chapter Three, then you had to retype the entire chapter to accommodate the insertion: one would try to make a balancing deletion in order to avoid having to retype the whole damn thing. As soon as we got word processors we could shunt paragraphs around and add lots of second thoughts without any need to delete first ones. First thoughts plus second thoughts equal longer books.

We all get drilled into our heads that copyright protects not ideas, but the expression of ideas. You can’t copyright the thought “ideas can’t be copyrighted”, but as soon as I write it out in this sentence, this way of saying it is now protected by copyright — well, that might be just too general, generic, a statement for copyright to come into play, but if I dressed it up a bit more “uniquely” with some fancy adjectives and qualifiers it would be protectable. Or to put it differently but more accurately, the sentence as it stands would theoretically be protected by copyright but the value of that protection might be $0.

Via Nate Hoffelder’s Weekly News Brief comes this link to Nolo‘s account about how it is that characters can become copyrightable. Just try writing a novel featuring a suave British spy called James Bond. “Fictional characters can, under U.S. law, be protected separately from their underlying works. This is based on the legal theory of derivative copyrights. To obtain this type of protection, a creator must prove that the characters are sufficiently unique and distinctive to merit this protection.”

Derivative works include prominently fan fictions. In my 2015 fan fic post I claimed wrongly that characters could not be protected by copyright. They can be if they are really well known, but in many instances authors don’t bother to sue because the law isn’t clear, and getting a judge to judge is always an expensive proposition. So fan fics for instance thrive on putting favorite characters into novel situations, and authors mostly regard this as almost a form of marketing for their own books.

See also Herlock Sholmès and the case of the curious © claim.

The Passive Voice explains recent changes in the Copyright registration procedures covering digital-only publications. As Copyright.gov tells us “Section 407 of the Copyright Act generally requires the owner of the copyright in a work published in the United States to deposit two copies with the Copyright Office for use by the Library of Congress. The Register of Copyrights is authorized to exempt certain classes of works from this mandatory deposit requirement. In a 2010 interim rule, the Office codified its longstanding practice of exempting all electronic works that are not available in a physical format.” [There were a few exceptions.]

In 2020 they decided that books published only in a digital version would become subject to a deposit requirement, in electronic form, when © is registered. (None of this refers to what we normally think of as e-books, where the digital version is in effect no more than a different format of a print book — the deposit in these cases will have taken place when © in the original printed book was filed.) The Passive Voice speculates that this acceptance of digital deposit might indicate a recognition by The Library of Congress that they can’t store everything in physical form, and that they may want to move more generally to e-deposit. If there’s anything to this, it will no doubt be a long drawn out process. The new reg isn’t substituting a digital copy for a hard copy: it’s introducing a digital copy deposit requirement.

For those who feel compelled to get their news from the horse’s mouth, here’s a link to the Federal Register of 12 November 2020 in which the rule is set forth.

See also Copyright registration.

“For popular e-books, libraries pay $55 for a copy that expires after two years, or $550 for a copy for 20 years, compared with the about $15 that a consumer would pay, according to the American Library Association (ALA).”

Clearly Sludge (link via The Passive Voice) thinks this bare assertion requires no discussion: case over, off with his head — unambiguous case of publisher profiteering. Why should a library be forced to pay so much more than an individual? — Well, because an individual can read their ebook, just as they can their print book, to themselves, or in rare cases out loud to a small gathering. They can reread their ebook as often as they like, but unlike the hard copy edition, they can’t resell the ebook, give it away or even (without difficulty) lend it to someone else. Such access as they have acquired is theirs and theirs alone. If a library were able to “buy” outright the same ebook, they could then lend it to as many readers as they liked, put it on the interlibrary loan system, give it away to all and sundry, and thus deprive the author (and yes, the publisher) of any more income from that publication. Librarians of course recognize that there is a problem here, but they often fail to recognize that the logic of their pricing gripes can lead to exactly this sort of situation.

That Sludge shouldn’t know exactly what they are talking about is perhaps understandable — their focus is elsewhere, as their banner “Relentlessly exposing corruption” indicates, but they quote a group called Library Futures which, given its name, should know better than to make this nonsensical assertion — “Libraries simply can no longer be forced to rent their e-book collections with restrictions and pricing that are designed to minimize the libraries’ ability to provide access to the public, while maximizing publisher profits over that library mission”. But hang on a minute: Libraries cannot do anything other than rent their ebooks. Ebooks are not available for “sale” in any other way. No purchaser can do anything other than rent their ebooks. Ebooks are available only for rent. When you “buy” an ebook you are in reality buying access to a website where the book is available to be read. If libraries don’t like renting ebooks, the answer is clear: save your money and spend it on some other stuff you can really own.

The Sludge solution comes about because they have seen that the State of Maryland passed a “law that aims to increase public libraries’ access to e-books, with support from a powerful copyright lobbying group”. What the law actually does (did, as it’s not going to be happening, as nor will similar laws passed by other states) is to order publishers to sell ebooks to libraries at “reasonable” prices — reasonableness to be determined by the state. We can all agree that it’s a wonderful thing that during the pandemic borrowing of ebooks from libraries increased, but it’s dishonest to yoke an argument justifying expropriation of property to the tragedy of covid. Just because lots of people enjoyed a free ebook during their illness or confinement to home, is, unfortunately, no argument for why their library should be allowed to get the things at a knockdown price.

We go back and forth on how much it is right for a publisher to charge a library for access to an ebook: it’s just impossible to predict how many library patrons will want to borrow this or that book, which makes it difficult to know what an appropriate charge might look like. The debate goes on. But, how about this as a response to all the carping about library pricing terms — let’s decide that ebooks should never be available at all through the library? Given the mechanics of what’s actually happening in the case of a library loan of an ebook, would it not make sense for the library just to get out of the way, and leave the lending to the publishers or their agents? Funding given to libraries could be redirected in part to the publisher or their agents in proportion to the amount of lending going on with each title — computers are after all notoriously good at bean counting — so all this could be arranged relatively easily. (And of course, in Britain at least, we already have such a system in place for library lending.) That library patrons should like to get free access to all sorts of books is understandable enough; that publishers and authors should be made to give away their products at a punitively discounted price is not. Nobody’s happy. Let’s see what the Gordian-knot-chopper argument about not letting libraries get hold of ebooks at all does to the concentration of minds.

See also Ebooks and libraries and Going into overdrive on library ebooks.

Co-sponsor of the Strengthening Measures to Advance Rights Technologies Copyright Act of 2022 (maybe they could use some editorial help here) Senator Patrick Leahy wirbles “Nearly twenty-five years ago we enacted the Digital Millennium Copyright Act, a landmark update to the copyright laws for the internet age. Since then, the internet has significantly changed, and with it so has the world of copyright. I’m excited to work, alongside Senator Tillis, with filmmakers, musicians, authors, and artists of all stripes, enlisting the help of online platforms, to address online copyright theft that robs these artists of the fruits of their creativity and hard work. The technology exists to protect against this theft; we just need online platforms to use the technology. I’m working hard to make sure our artists get paid, and we can enjoy legal access to their wonderful creations.”

Of course we none of us want artists being robbed of their fruit, but this proposal probably isn’t going to prevent websites posting copyright material without payment. (I confess to doing so myself.) This legislation is basically a patch to be applied to the Digital Millennium Copyright Act of 1998, aiming to compel platforms to adopt the STMs (standardized technical measures) called for in the 1998 Act but hardly ever implemented. That law says that service providers and content-sharing companies like YouTube don’t have to pay for copyright theft on their platforms as long as they have “worked with copyright owners to create effective standardized technical measures (STMs) to identify and protect against distribution of stolen content.” They have just not done this, though no doubt legal experts have managed to loophole into any discussion of the matter a working-with-copyright-owners story.

Fair enough in a way; we do what we can. Baby steps are still steps. But what’s really needed is a total revision of the Digital Millennium Copyright Act written from a point of view other than Mickey Mouse’s. Plagiarism Today believes that the SMART Act is unlikely to become law, and suggests it’s no more than an opening shot, a sighter, in a longer discussion. Babies and bathwater come to mind as ever when copyright changes are discussed. Legislators, please do bear in mind the fundamental differences between YouTube et al. and blogs like this one. Sledgehammers can hurt, even if they are swung with the best of intentions.

I continue to root for three kinds of copyright, though I don’t believe the Senate is listening!

The Harvard document I linked you to in my post, Basics of copyright, was basically focussed on fair use. Plagiarism Today directs us to Circular 1 from the U. S. Copyright Office as a true basic introduction to the subject of (U.S.) copyright. Anyone seeking a brief introduction to the subject of copyright would be well advised to read Circular 1.

As its name clearly tells you, copyright is based on the idea of the right to make copies of intellectual properties. A copy of a book is a fairly straightforward idea — that’s what we pull off the shelf — though of course you could sit down and make a copy of a book by hand. Our law, because it’s based on pervious laws, tends to take off from a world in which these are your only two options. However technology has obviously updated the writing on the wall — you can make a Xerox copy of an entire book. Even easier, a digital copy is clearly an absolutely basic form of copy, and can be made at the flick of a finger, but I can’t help regarding it as so different that it almost needs a separate word to define it. Congress can’t just decide that a digital copy shall henceforth be called a “replication” in order to clarify its copyright status and distinguish it from a handwritten copy. Well, I suppose it could, but none of us would fall in line.

So we are stuck with a situation where making a copy can be as hard as finding a printing works, creating an original image and transferring it into the print system, buying some paper and then printing (and paying for) the printing of a copy or copies — or as simple as pressing Command-C on you keyboard. Recent revisions of the copyright law have tried to take account of the digital revolution, but I suspect we won’t get it “right” until we start again with a blank sheet of paper.

Last year Spice DAO* invested $3 million in a copy of a rare book, Jodorowsky’s Dune. This book is no doubt the script and storyboards for Chilean film director Alejandro Jodorowsky’s movie based on Dune by Frank Herbert which slouched towards a birthing some time in the 1970s. Apparently only ten or so copies were made.

The story brought to us by Plagiarism Today implies that Spice DAO can’t tell the difference between “a book” as a physical object, and “a book” as content, in which form it is of course protected by the law of copyright. But the story seems to be more nuanced than Plagiarism Today suggests. At The Verge, Adi Robertson gives us a more sober analysis. Turns out that Spice DAO know exactly what it is they have and haven’t bought, and understand perfectly well that among the things they haven’t bought are any intellectual property rights. What Ms Robertson suggests they have bought is a modicum of publicity. Maybe there will be a rush to buy NFTs of individual pages of the book which it appears is one of the ways Spice DAO plan to recoup their investment. There may be an eagerness to invest in NFTs which outstrips our understanding of what an NFT is.

A Non-Fungible Token is a unique digital address stored on a blockchain. If anyone was silly enough to pay me for it, I could in theory sell them “ownership” of this photo of our apartment window showing the top of our Christmas tree. Their ownership would be secure, guaranteed by the power of blockchain. So in exchange for a nice cheque you can become the undisputed, and indisputable, owner of this picture. Sounds irresistible, doesn’t it?

Ownership of this picture would mean little. I could if I wanted sell another NFT of it to your neighbor, and if you sought to reproduce the photo I could sue you for copyright infringement. While you could resell the NFT itself, if you hoped to sell a copy of it, you couldn’t, nor could you create another NFT of it. Of course you could in theory bargain with me to acquire the rights to do these things — if you could afford them — but I suspect much of the excitement around NFTs these days is based on the assumption that these rights are automatically included in the purchase. Lots of people are probably going to wake up one day and regret their expenditure on NFTs of individual pages from Jodorowsky’s Dune.

Just who’d own the rights to the story bible of a movie that was never made isn’t altogether obvious, but it is the sort of thing that could be found out one would think. So supposedly permission to do something could be sought from someone somewhere. Mr Jodorowsky is still with us, approaching his 93rd birthday. Confusingly there is actually a movie called Jodorowsky’s Dune. This is a documentary about Mr Jodorowsky’s efforts to make the film adaptation of Dune, which effort collapsed when the director refused to compromise on length: the studio liked two hours, he wanted ten to fourteen. He hoped to give roles to Salvador Dali and Orson Welles and have the music taken care of by Pink Floyd. In the end, David Lynch’s version of Dune came out in 1978, and of course there’s now a mini-series making the rounds.

An NFT of a book sounds rather unlikely. Here I find myself in agreement with Kristine Kathryn Rusch “NFTs have the feeling of a fad (at best) or a scam (at worst) to me.” Maybe there’s a place for them in the computerized areas of the graphic arts, but a book sounds about the opposite of an exclusively owned artwork. Maybe the manuscript might be an apt subject for NFT-ification, but would you want to own an NFT of the manuscript of The Sound and the Fury, rather than the actual manuscript? But maybe I’m missing the whole point of NFTs.

And in the meantime $3 million sounds like a risky investment.

See also NFTs from a couple of months ago.

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* DAO stands for “decentralized autonomous organization”. It is described at Wikipedia as “an organization represented by rules encoded as a computer program that is transparent, controlled by the organization members and not influenced by a central government. A DAO’s financial transaction record and program rules are maintained on a blockchain”

“A blockchain is a growing list of records, called blocks, that are linked together using cryptography. Each block contains a cryptographic hash of the previous block, a timestamp, and transaction data (generally represented as a Merkle tree). The timestamp proves that the transaction data existed when the block was published in order to get into its hash. As blocks each contain information about the block previous to it, they form a chain, with each additional block reinforcing the ones before it.”

Plagiarism isn’t right, of course, but it always seems to me that its seriousness depends on who’s doing it and why. A politician is found to have plagiarized when writing their master’s thesis? So what? They’ve no doubt done a lot worse. An undergraduate plagiarizes in their weekly essay? Give me a break: what else are they meant to do? Well of course mentioning a source might be the responsible thing to do, but we can’t expect him/her to refer exclusively to their own original research can we? A bestselling author is shown to have cribbed most of their latest from someone else’s unknown novel — well, now you’re talking. (Part of the mystery surrounding the recent manuscript theft case is that this is exactly what it looks like, but there’s no evidence that the alleged perpetrator did anything of the kind.)

Of course influence can look like plagiarism and even Shakespeare‘s been tarred with this brush. If an Andrew Lloyd Webber tune sounds a bit like Puccini, that’s one thing. If a Puccini piece sounds like Puccini that’s a horse of a different color. It’s a bit like an accent: hard to avoid. If you mistake someone on the street for a friend of yours, you can hardly accuse the stranger of trying to pass themselves off as your buddy.

Still, although things shade off into these grey areas, we are usually talking about more obvious behavior when we discuss plagiarism. Given that academic jobs are distributed on the basis of publication activity, it’s not altogether amazing that, in order to get tenure, one or two over-eager professors are willing to pass off the work of others as their own. This can be as simple as just copying a journal article, and changing the author’s name, though usually a little more effort is put into the task. The OUP Blog brings us an examination of six types of plagiarism.

The six headings under which they examine plagiarism are:

  • Paraphrasing (without mentioning the source)
  • Patchwork or mosaic copying
  • Verbatim quotation without acknowledgement
  • Source-based plagiarism (faking a good looking source)
  • Global plagiarism (passing off a copied work as yours)
  • Self-plagiarism

In one way one might think that self-plagiarism is fair enough — if I can’t use my own works who’s work can I trust? But of course the issue is providing a reference. By failing to mention that the authority you are referring to is actually yourself, you attempt to imply that other researchers think as you do. And of course any extensive undercover quotation from yourself is a sign of laziness.

During the Covid epidemic, they inform us, “globally, the similarity score for academic submissions rose from an average of 35.1% to an average of 49.6% across the two measured time periods. This includes a 31% rise in paraphrased content and a 39% rise in identically matched content.”

The post is written by Epigeum, Oxford’s online course provider. They tell us that they “offer a number of programmes on these subjects [avoiding plagiarism and other poor practices] that provide comprehensive training and can form part of a wider approach to research or academic integrity”.

Bit depressing that we live in a world where integrity has become something adults need to be trained in. Plagiarism is obviously surprisingly hard to avoid. Just keep your references up to date, OK?

For a particular instance, see Textbook withdrawn. Another earlier post, Plagiarism suit, looks at a self-publishing outbreak. Plagiarism tales a look at on-line plagiarism checkers as part of a discussion of another Oxford University Press manifestation.

TorrentFreak (link via Technology • Innovation • Publishing) tells us that a default judgement of $7.8 million has just been handed down in a lawsuit brought by Amazon Content Services, Penguin Random House and several authors including John Grisham, Lee Child, and R. L. Stine against ebook bargain sites Kissly.net, Wtffastspring.bid, Libly.net, and Cheap-Library.com. The sites, which operated under the “KISS Library” brand, sold pirated ebooks at bargain prices. The defendants in the suit spent more time dodging than addressing the complaint, and the judgement was handed down in their absence.

I suppose we expect to be able to collect, do we? Probably not, according to Publishers Weekly. It may also prove difficult to get the Ukrainian principals to cease and desist in this obviously highly profitable business. Maybe some potential customers (libraries) will pay attention.

I think we can all get behind the idea that a Ukrainian company (any company) should not be allowed rip off ebook authors in order to get ebooks cheaply to libraries.* But closer to home we have attacks on-going against the terms on which publishers supply ebooks to libraries. The basic problem is of course that everyone knows that ebooks cost nothing to produce — so why should we have to pay anything for them? Need I say that this is of course nonsense?

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* Motivation, however plausibly noble, doesn’t matter. The law is the law. Theft is theft. Robin Hood was after all “an outlaw”. Cf. the Sci-Hub saga, and the lawsuit against the Internet Archive.