Archives for category: Copyright

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?

__________________

* 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.

Wikipedia defines NFT thus: “A non-fungible token (NFT) is a unique and non-interchangeable unit of data stored on a digital ledger. NFTs can be used to represent easily-reproducible items such as photos, videos, audio, and other types of digital files as unique items, and use blockchain technology to establish a verified and public proof of ownership.”

Jane Friedman has written a straightforward explainer-piece for the mystified. After quoting that Wikipedia definition, she starts off, “If Bitcoin and other cryptocurrencies are the money of the future, NFTs are your unique possessions of the future that can be sold for money.” That makes me cross my fingers that Bitcoin won’t turn out to be the money of the future. She goes on, “NFTs showcase your social status and what you care about, similar to a Rolex on your wrist, the Birkin bag on your arm, a Picasso on your wall, or a first edition of Thomas Pynchon’s Gravity’s Rainbow on your shelf.” This all rather leaves me out in the cold, but I guess when much of many people’s social life has moved on-line, such digital conspicuous consumption makes some sort of crazy sense. Read on for an exploration of possible (if unlikely, I think/hope) applications to publishing.

She doesn’t spend any time on the energy problems around NFTs. After their recent NFT sale The Economist alluded to the carbon footprint cost involved in validating blockchain transactions.

Of course I don’t get it when it comes to NFTs, cryptocurrencies, and web3, so I find it quite hard to see the positives in the argument. It all seems ultimately to be a lot of wishful thinking about a non-existent problem. In so far as we have problems with our current social media landscape I think we will begin to cope with them by learning to ride the bike, not by inventing a whizz-bang rocket-powered personnel-carrier.

Copyright in a painting, sculpture, work of art, is available in just the same sort of way as for a book. If your book exists in one copy only — a ratty manuscript stuffed into the back of a drawer — then the situation is exactly analogous: it’s fixed in a tangible medium of expression. The big difference with book copyrights is that the thing tends to be available in multiple, perfectly legal, copies. A duplicate painting is a fake. (Did someone like Warhol come close to self-copying? And if there were two “originals” of a painting, how would that affect value?)

CNN, via The Passive Voice, has an impassioned piece about copyrights in paintings. The situation with regard to adaptations is basically the same as with a book. You can make a parody — but just look out for law suits. It costs a lot of money to defend a law suit, even one which isn’t really backed by your opponent’s interpretation of the law. Caution is obviously desirable.

Old paintings owned by museums are often subjected to restoration. I believe that Mark Rothko’s paintings are particularly fragile. Once a team of conservators have added little bits of paint here, some color there, and returned things to their “original” condition, are we dealing with a collaborative work, or even a work made for hire? Wisely we have chosen not to confront these questions. Here’s a video of them repairing a vandalized Rothko at the Tate Museum:

The main revenue stream in the copyright in artworks is the sale of reproductions. Ownership of a piece of art does not automatically include the right to allow for reproductions. (It could in theory, but that would be because the buyer had separately negotiated to buy that right too.) But even if you do own the reproduction right there’s also the issue of the copyright the photographer holds in the photograph they made of the sculpture. Before showing it in your book, you’ll need to get permission from the photographer too. This raises the problem that a photo of a public domain work, say the Mona Lisa, may nevertheless require permission, from the photograph’s owner.

It is all a bit of a rabbit hole. When in doubt, ask.

On 25 October The Economist sold a Non-Fungible Token (NFT) of their 18 September cover (above) for 99.9 ether, the equivalent of $420,000. In a way (in actual fact) owning an NFT of an artwork is an exact digital equivalent of owning a painting. “NFTs are a digital property deed that lives on a blockchain and can be bought on financial platforms using digital currencies”.* You own it, and can sell it to another collector. The Economist reports that the terms of sale also entitle them to 10% of the proceeds from such a future sale which, like the original profit, will be donated to their educational charity The Economist Educational Foundation.

The rights which come with the purchase of an NFT need to be carefully defined. The Economist tells us their cover’s “new owner . . . has rights akin to a licence: they can display the image in certain ways, but cannot commercialise it (by, for instance, selling T-shirts with the image on them.” However the hassle in getting the sale done seems to have been large, and they also mention the large carbon emission effects of the transaction — blockchain is a heavy consumer of computer time.

________________

* For me, this falls into the same pit of definition as things like futures trading and stock options (and the modern automobile engine). You sort of know what folks are talking about but have no gut-feeling of reality when you hear the terms. As such, I’d like to argue, blockchain, Bitcoin, digital trading, and so on, represent no greater threat to our mental comfort that lots of other things we just don’t get. So, no worries. We’ll probably be getting more and more used to them as time goes by anyway.

Now this is the sort of thing The Passive Voice is good at — straight-ahead legal stuff. His post “Inheriting the copyright” references and extracts from a piece at The Legal Genealogist. If you want to read the whole piece there’s a link to it at The Passive Voice, but the extracted bit may be enough for most readers. If you’re in line to receive a legacy including a valuable copyright, you need to read this. Ditto if you’ve got such jewels to hand on.

Getting it right is important. Legal struggles tend to be expensive. “Long ago and far away, he [the writer of The Passive Voice] managed to resolve litigation over the meaning of a will that had been ongoing for 16 years.” No doubt a satisfying outcome. But of course the classic instance here is Jarndyce and Jarndyce. Law cases are good for lawyers and should always if possible be avoided. The Passive Guy’s good advice is “it is not impolite for you to ask what the costs will be for the attorney’s services”. Our reluctance to talk money should always be resisted in business dealings: this is no doubt in large part why your author ancestor had an agent to do the negotiating.

See also The ultimate rights transfer, and Term of copyright.

Maybe you saw the television series “Lupin”, about a slick burglar inspired by the fictitious cambrioleur Arsène Lupin. It’s quite fun. You can find it on Netflix. Slate, via Technology • Innovation • Publishing brings us this story of yet more Sherlock Holmes copyright troubles, these ones dating from 1907; troubles which lead to the French publisher’s cleverly changing their detective’s name to Herlock Sholmès. Instantly recognizable, but obviously different — and whatever your views as to whether characters are copyrightable or not, not an infringement.

The Arsène Lupin books were written by Maurice Leblanc (1864-1941). Naming problems seem to have dogged the series. The main character was originally called Arsène Lopin at his “birth” in 1905, but a local politician of that name objected to having a burglar named after him, however smart, so o became u. The short story “Sherlock Holmes Arrives Too Late” was published in Je sais tout magazine in June 1906 leading to Conan Doyle’s objection. When the story and its sequel were published in book form in 1908 the title had been changed to Arsène Lupin contre Herlock Sholmès. Leblanc wrote 25 Lupin books. There’s a whole tangled history of naming changes made by translators into English. The Holmes estate is rather prickly when it comes to interpretation of the copyright laws, and still seek to exercise control, as I wrote a few years ago in Holmes run. Plus ça change, plus c’est la mème chose.

On a different Holmesian tack, The Economist’s 1843 Magazine (link via Nate Hoffelder; probably behind a paywall I fear) tells us about the man who was employed for seven years to reply to letters addressed to Sherlock Holmes. Wikipedia tells us that by the 1990s there were already over 25,000 stage adaptations, films, television productions and publications featuring the detective, so correspondence was quite vigorous, particularly as lots of people believe Holmes was real.  Nearly 60% of respondents to a British poll in 2008 believed he was a living person. (Equally inspiringly, a quarter thought Winston Churchill was fictional).

In 1975 Chris Bazlinton was offered a job in PR for Abbey National. “’Oh, one more little thing,’ the general manager said. ‘You will also have to act as secretary to Sherlock Holmes, answering the mail that comes in for him.’” In the early years of Mr Holmes’ existence Baker Street didn’t extend beyond Number 85, so any letters to 221b were just abandoned by the Post Office. But when Abbey National opened their new headquarters in 1932, their building occupied numbers 219-229 — so they started getting the letters. Rather than throw them away they decided to treat them as a public relations windfall and to reply to as many as they could. Mr Bazlinton became the seventh secretary to Sherlock Holmes. He figures he must have dealt with about 6,000 fan letters. Abbey National moved out of its Baker Street building nearly twenty years ago. Today the Sherlock Holmes museum occupies a Georgian row house a bit further up Baker Street. They have been given the number 221b, a bit out of numerical sequence, so they now get the fan mail. 

Copyright exhaustion is a fancy way of saying that after a copyrighted item is first sold the copyright owner no longer has the ability to control or benefit from its distribution. In America we refer to this as the first sale doctrine. Once you have bought a book (or been given it) you can give it away, resell it, burn it, use it to clean your windows — whatever you want, and the author has no say or stake in any of these activities. The physical object isn’t protected by copyright: it’s the content that is. The end of the transition period following Brexit seems to mean that the old international agreement on regulations around this topic will lapse, and the UK government has to change the rules.

Publishers (and no doubt other heavier IP hitters like pharmaceutical companies) fear that any change will lead to a loss of income if books or pills are bought more cheaply in Europe and reexported to the UK. Not sure I understand how the basis for this worry has anything directly to do with copyright, and I think that’s the main source of confusion surrounding this campaign. The real issue seems to be a change in the regulations governing reimportation of products which have been sold to a dealer in Europe. The concern seems to be that some sort of loophole will be left in the rules which will enable books sold at a bigger discount to overseas agents to come back into Britain undercutting the local edition. But surely there are no forces mandating that you have to sell your books at a greater discount to a European dealer than to a local one, so why do we have to be concerned about masses of such books turning up so that we cannot sell our own editions? If a copy is sold to a German dealer, at that point the author gets their royalty: if the book finds its way back into Britain and is resold the author isn’t due any royalty anyway, so what’s the concern from the authors point of view? Are we worrying about the US edition being imported at a lower price than the local UK version? (It is of course possible that an author will be earning a different royalty on the two editions.)

With an ebook the copyright situation is different in that when you “buy an ebook” you aren’t really buying anything. What you are actually doing is leasing access to a file on a computer: you can use the file, but you can’t sell it or even give it away your access to it. No first sale ever takes place in such a situation, so copyright is not exhausted. To my mind this feature of the ebook market (along with the internationalization of the book supply chain) throws into question the whole basis on which we have “always” allocated rights to different publishers around the world. World rights begin to look awkwardly anachronistic.

31 August, today, is the date on which the UK government’s consultation period comes to an end. Publishing Perspectives informs us that the Publishers Association has publicized its research which shows that “64 percent of publishers’ book revenue is estimated to be at risk if the government changes the current copyright laws. The Intellectual Property Office is currently consulting on a change to the UK intellectual property framework in which one of the proposed outcomes, called ‘international exhaustion,’ would, according to the association, ‘spell disaster for the UK’s publishing industry’.”

When Britain was part of the EU single market, a first sale within the European Economic Area was the point at which the copyright owner could no longer control onward distribution. Now Brexit has apparently necessitated a reconsideration of the rules. One can see how lax rule drafting might lead to a situation where cheap international editions of a book could be imported into the UK, undercutting the domestic edition. So of course your industry association needs to lobby the government to ensure that such stupidity doesn’t happen. Save our Books is the campaign vehicle they have (rather misleadingly) selected.

Far be it from me to suggest the PA is guilty of telling an untruth — particularly as I have to confess I don’t really understand the mechanics of the problem — but I do think arguments should be conducted in reasonable and honest terms. To suggest that 64% of publishers’ revenues will disappear because English books can be imported from Europe sounds so outlandish that it makes it easy for the opposition to dismiss the claim as obviously partisan. If it really is a serious risk that lax rule drafting might lead to losses for UK businesses, wouldn’t one imagine a Conservative government, however chaotic, being rather cautious about making such a change?

Copyright exhaustion is a deeply misleading term. It seems to imply that copyright in the work is exhausted, whereas it’s just the copyright payment in that one individual copy that’s been used up. If selling a copy of your book meant that it immediately went into the public domain we’d see lots more book renting (á la ebook). Here the US term is much better: first sale is unambiguous.

The Office of the General Counsel of Harvard University has spoken. “Copyright and Fair Use” is available here. You may also download it as a PDF.

The basics — “Copyright does not protect ideas, nor does it protect facts.  It protects only the form in which ideas or facts are expressed.  For example, you may read a copyrighted paper and appropriate its ideas, or facts it conveys, into your own work without violating the copyright.” But you can’t just use the same words.

The piece is, obviously, directed at academic authors who may feel the need for guidance in the matter of quoting other researcher’s work. The advice is straightforward and direct.

Link via The Passive Voice. No doubt most colleges offer similar advice.

Plagiarism Today tells us

Andy Maxwell at Torrentfreak writes that Talon White, the former operator of a pair of pirate websites, has been sentenced to 12 months in prison for criminal copyright infringement and tax evasion. He has also been ordered to pay some $4.3 million is restitution to the MPAA (now MPA*) and the IRS.

The investigation began almost 8 years ago when PayPal sent information to the alleged infringing sites to Homeland Security. That prompted the MPA to send a cease and desist letter to the site’s operator, which responded by actually opening up new sites. In November 2018, a judge granted a search warrant for White’s property and, a year later, he pleaded guilty to one count of criminal copyright infringement and one count of tax evasion.

However, White’s sentencing was delayed due to the pandemic, and it only recently took place with the Department of Justice petitioning for a strong sentencing noting that White made millions off his operation and deliberately underreported his income by $4.4 million to the IRS. On top of the restitution, White must forfeit all currency and cryptocurrency previously seized from his bank accounts as well as a house purchased with the revenue.

Gambling News also carries a report — they describe Mr White as “a self-reported 31-year old professional poker player from Newport, Oregon”.

Photo: WSOP.com

These mills grind slow, but copyright enforcement is important. All too often the damage is worth less than the cost of a lawsuit would be, so no action is brought. To counter this problem Congress recently passed legislation establishing a small claims court for cases involving less than $30,000. This court is still being set up. On a larger scale, it looks like SciHub may be in trouble now for taking journal articles and making them available for free.

____________________

* Motion Picture Association (formerly “of America”). I suspect we all know what the acronym IRS stands for, but, for the benefit of non-Americans, it’s the Internal Revenue Service to whom we get to send our taxes. In Britain this was once upon a time called the Inland Revenue. Now it rejoices in the name Her Majesty’s Revenue and Customs.

The Passive Voice carries a story from The Chronicle of Higher Education about further troubles at Sci-Hub.

As usual The Passive Voice is in favor of whatever works against the ‘traditional” publishing industry. But just because Elsevier is a successful business (which all Americans are supposed to believe to be a good thing) this doesn’t have any bearing on whether Sci-Hub’s theft of copyright materials is or is not a good thing. It is certainly an illegal thing.

Yes Ms Elbakyan may have set up Sci-Hub with what could pass as noble intentions: “I thought Sci-Hub would become legal in a couple of years,” she said. “When the laws are obviously in the way of scientific development, they should be canceled.” But — I’ll say it though it does go without saying — just because you disagree with a law does not give you or anyone else the right to disregard it.

Whether or not copyright ought to be regarded as a property right is a question that can be debated. But for the un-friends of the publishing industry, it does have to be remembered that copyright is protected around the world, and is fundamentally a right held by authors not publishers. In the case of most journal articles the authors tend to assign copyright to the publisher. They assign it: publishers don’t steal it! Might it be worth looking at their motivation in this sort of transaction? Might one detect an analogy here with self- as against traditional publishing?

Apparently blissfully innocent of any knowledge about the publishing of journals, The Passive Voice comes up with the jolly good idea that universities should establish some sort of organization which can be tasked with publishing scientific journals (as if these were the only kind), and thus somehow outflank Elsevier. Universities first had this idea five centuries ago: the organization the came up with is called a university press. Elsevier may publish a lot of journals, but university presses publish many more. Unfortunately for the noble and altruistic impulses behind The Passive Voice‘s crusade, university presses do not give away their journals for free. To get these articles for free you either have to go to a library with a subscription, or steal them via a site like Sci-Hub.

See also Open Access, like it or not.

Richard Charkin, at Publishing Perspectives, writes about the 125th anniversary of the IPA.

A hop.

Hops are the flowers (also called seed cones or strobiles) of the hop plant Humulus lupulus. Hops add the bitter to beer.

IPA, a hop-heavy style of beer, gets its name, India Pale Ale because the October beer brewed in the late eighteenth century by George Hodgson’s Bow Brewery, handy for the East India Docks, when shipped to India, seemed miraculously improved by its sea voyage. During the Napoleonic Wars the East India Company commissioned Allsop’s brewery in Burton upon Trent to develop a strongly-hopped pale ale in the style of Hodgson’s for export to India. Burton India Pale Ale was quickly preferred by merchants and their customers in India.

Once upon a time I worked for the company that produced The Complete Idiot’s Guides. This formula series was set up to compete with Wiley’s Dummy’s Guide to this that and the other. The concept grew out of computers and was probably originated to fill the gap left by those gigantic manuals you used to get from your computer company whenever you bought a new program. (Computer companies quickly realized they could increase margins by not bothering to print vast volumes, and put the stuff online, where few non-enthusiasts were able to seek it out.) These Guides were an example of publisher-driven publishing: there was a tightly-structured template of permissible approaches to the topic you had been assigned, and of the tone in which you addressed it. If an author failed to follow the plan they might get another chance before being replaced by a more rule-compliant writer. I’ve lost sight of my Complete Idiot’s Guide to Beer, or I’d have no doubt been able to go on at great length on the topic of IPA.

The mathematically alert will have calculated that India Pale Ale has been around a good deal longer than a century and a quarter. And of course Mr Charkin was talking about the International Publishers Association, the world’s largest federation of national, regional and specialist publishers’ associations. The IPA, of which Mr Charkin is a past president, was founded in 1896 with the aim of ensuring that countries throughout the world showed respect for copyright, and properly implemented the (then) new international copyright treaty, the “Berne Convention for the protection of literary and artistic works”. There are 86 member organizations from 71 countries around the world. This is one of those organizations which I’m sure it’s really valuable to have, but whose operations are invisible to most people in publishing — at least until there’s some crisis. Maybe we’ll be getting some copyright reforms to address the internationalization of information now that it doesn’t have to cross the oceans in a boat like books — and India Pale Ale — used to. Individual nations will no doubt continue to introduce their own reforms piece by piece, but with something as universally relevant as copyright, some sort of international harmonization is essential. IPA to the rescue?

Kent was where the hops would grow, and lots of London families would make their way down for the harvest. Where I lived, in the north, the school holiday we got was for the potato harvest, tattie howking, as it was referred to, but down south hops provided the “holiday”. Oast houses were used to dry the hops though most remaining examples are just sentimental memorials now that the entire process has been mechanized.

Oast houses in Kent

If you don’t see this charmingly nostalgic video here, or the IPA one above, please click on the title of this post in order to view them in your browser.