Archives for category: Copyright

I recently wrote about the daring decision of the Internet Archive to offer people free digital access to a lot of copyright books. They seemed to argue that desperate times require desperate measures: which may be fair enough, but doesn’t permit you to disregard the law of the land just because there’s a pandemic aloose in the land.

Now publishers have brought a lawsuit, seeing that pointing out the error of their ways wasn’t going to make the Internet Archive change their policy of giving away other people’s property (not just the publishers of course, but the authors whose work is being given away). Here’s the Publishers Weekly story, and a nice balanced analysis by Chris Meadows from TeleRead. Even the Passive Voice piece sees PG forced into an uncharacteristically non-anti-publisher stance.

And now it’s all over. Well, the immediate covid-lending of multiple copies is over. Brewster Kahle, head of the Internet Archive has said that they will continue lending scans of print library books on a one copy/one user model. Their theory justifying this is something called controlled digital lending. Under this untested legal theory theory, a library or a nonprofit, like the Internet Archive should be allowed to scan a printed copy of a book they have legally acquired, and then make that scan available to be borrowed in lieu of the print book, while, crucially, taking the corresponding print book out of circulation while the digital copy is on loan, or vice versa, so that at any time they are lending only the number of copies (in whatever format) that they have purchased. Unfortunately the law doesn’t see things like this: maybe the law is too analog fixated, but it is what it is. In an analog world the book is the physical book, not the content. There are specific rights transferred by different kinds of sale. It’s true that a library, having bought a paperback copy can legally send it out to a bindery and have it converted into a hardback. There’s even a word for it: prebinding. However, if you buy a print copy of each novel of Zadie Smith, you have not acquired the right to publish an omnibus edition of Smith’s novels, either in physical or digital form. Like all this digital enthusiasts, Mr Kahle may wish it were so, but it just ain’t.

I assume that the lawsuit will probably continue, providing a test of the theory of controlled digital lending. But the publishers may consider the game not worth the candle during this uncertain financial period.

The New York Times has a long and fascinating article in the Business Section of the issue of 24 May. (You may need a subscription to see this I fear.) The piece involves the saga of suit and counter-suit from a couple of authors active in the Omegaverse. The Omegaverse is a sort of fan fic phenomenon, involving folks writing and sharing futuristic wolf-themed erotica. Apparently 70,000 stories set in the Omegaverse have been published on the site Archive our own. One author, Ms Cain, took tropes from this “conversation” and wrote novels which tuned out to be wildly successful. These books were adapted from her earlier unpublished Batman fan fic erotica. She later discovered another author, Ms Ellis, who was writing novels using the same tropes, and also selling lots of books. Ms Cain issued “takedown” notices, as allowed under the Digital Millennium Copyright Act*, and sales of Ms Ellis’ books stopped. Ms Ellis is countersuing on the basis that Ms Cain owned no copyright in these group-sourced characters and situations, nor does it seem that the words of any of Ms Cain’s books were duplicated (which of course is the real basis of copyright — you can’t copyright a story line or a character). In a statement which doesn’t increase confidence in her, Ms Cain reports that she hasn’t actually checked to see if any words were actually duplicated as the experience of reading Ms Ellis’ books would have been too upsetting! “It was hard for me to read them side by side, honestly, because I felt very violated.”

It is interesting to note just how much money there is to be made writing this sort of stuff. Ms Cain is quoted as saying in a 2016 sci-fi/fantasy podcast “Dip your toes into the erotica pool. There’s nothing to do here but make money.” At a relatively early stage in her career, it seems, her publisher, Blushing Books, reported that the series had made $370,000. The amounts of money to be made have obviously turned Ms Cain from a fan into a tycoon, whose motivation has shifted from lust to lucre. Blushing Books has dropped out of the suit admitting that no plagiarism or copyright violation has taken place. The law is moving forward as the law does. The Times article concludes: “In the meantime, the Omegaverse continues to thrive. This year, more than 200 new books from the genre have been published on Amazon.

“The latest batch draws on virtually every genre and trope imaginable: paranormal shifter romances, paranormal Mpreg romances, [Mpreg refers to the ability of some males in the Omegaverse to give birth] reverse harem romances, sci-fi alien warrior romances. There are fantastical Alpha-Omega stories featuring witches, unicorns, dragons, vampires, wolf-shifters, bear-shifters, and wolf-shifters versus bear-shifters. There are comparatively pedestrian Omegaverse romances about celebrity chefs, dentists, frat boys, bakers, bodyguards and billionaires. In a teeming multiverse of stories, the tropes are still evolving, inexhaustible.” Quite amazing.

Implications for our copyright law abound, but it does seem to me the main issue behind all this is plagiarism rather than copyright infringement, with Ms Cain having no exclusive right to the themes collectively developed in the Omegaverse.

In the isn’t-life-crazy genre, here’s an article from Electric Literature about five other plagiarism and copyright infringement suits.

See also the related Cockygate case from a couple of years ago.


* According to the Times, the US Copyright Office has recently issued a report detailing how the Digital Millennium Copyright Act has failed to keep pace with digital developments. From 1998 to 2010 Google apparently received less than 3 million takedown notices: in 2017 alone they got more than 880 million of them. Change will be coming.

On the face of it it might seem nonsensical that by posting a photo to Instagram you are giving up your copyright in the image — but as Judge Kimba Wood recently ruled, that is indeed the case. When you sign up for an account on Instagram you apparently agree to terms granting them “a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the Content”. Mashable just won the suit for copyright infringement brought against them by Stephanie Sinclair who turned down Mashable‘s $50 offer yet saw them use her photo of a Guatemalan mother and child anyway. The Hollywood Reporter carries the story. (Link via Technology • Innovation • Publishing.)

This, rather obviously, demonstrates the need to read the small type. Of course we all brush this off, and that may be OK for day-to-day life. After all why would you want to use Apple’s OS Catalina for anything other than the purposes they have designed it for? But if you refuse to read the full contract you agree to just don’t think you can then bring a law suit — or at least don’t waste your money doing so until you’ve taken the time to read carefully what you signed up to years ago.

This is another of the many cases which indicate the need to clarify our copyright laws. Copyright law as it stands is ruggedly analog: “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed”. The law urgently needs to start to take account of the digital world directly, not just by logical extension. The online world is quite obviously different from the world of print. Showing you my photograph of a family in Guatemala is quite clearly a different matter from my publishing it in a book or a magazine. If I show you a photograph I took, either as a hard copy or on my iPhone, you’d never imagine that you had any right to reproduce it. If I gave you a print? If you see it online does that amount to its being it published? What if I send a picture to you as an email attachment? Common sense may provide ready answers to these questions, but copyright law may not be the right mechanism for protecting all uses.

Let us bear in mind that the reason for having copyright protection in the first place is not to enrich content creators; it is “to promote the progress of useful arts and science” by encouraging authors to share their works without just giving them away. This seems to bear scant relation to a social media “publication” of you modeling your latest outfit.

The Passive Voice links to a post from the American Bar Association. The ABA’s full article presents a thorough history of U.S. copyright law.

At first copyright protection was provided by individual states, and Connecticut was the first to do this, in 1783. Our first national copyright law was passed by Congress in 1790, three years after the Constitution was signed. To get protection a work had to be registered with the clerk of the local district court, with whom a copy of the work had also to be deposited. In the first move toward centralization of the process in 1831 these district court clerks were required “at least once in every year, to transmit a certified list of all such records of copyright . . . and also all the several copies of books or other works deposited . . . to the Secretary of State, to be preserved in his office.”

It wasn’t till 1865 that the Library of Congress (founded in 1800) became the place where copies of books were required to be deposited to ensure copyright protection, and this flow of books to the Library was cemented by the Act of 1870. The work expanded so quickly that the Librarian of Congress was soon applying for help, and in 1897 the Copyright Office was established by Congress as a quasi-independent department of the LoC with the job of Register of Copyrights created to manage it. In 1996, Congress clarified that the Register has an equivalent position to that held by the head of the U.S. Patent and Trademark Office. The thrust towards independence of the Copyright Office continues, with the proposal to make the Register a presidential appointment, freeing the job from the requirement of channelling authority through the Librarian of Congress.

Clearly the scope of copyright has exploded in recent years with the development of the digital world and social media. What the copyright position might be with a picture placed on Instagram or Snapchat is very different from a reproduction in a book. I don’t have to lay claim to any crystal-ball skills when I say that copyright law is due for further change.


I recently held forth on Artificial Intelligence and copyright. Heck; sometimes it seems like we have to wonder about ordinary intelligence and copyright. Tractors, monkeys, the back of Rod Stewart’s head*!

Last year Plagiarism Today took a look at the question in a piece entitled Copyright and Artificial Intelligence. (Link via The Passive Voice.) The author appears to end up concluding that AI can only begin to qualify for copyright protection if it can be demonstrated that it has consciousness. Wow! I doubt if legal scholars and our legislators will ever be qualified to conduct this debate.

There’s no doubt that lots of written material is now being generated by computers — Forbes reports on a bunch of such systems being used by newspapers and magazines. I can’t help discerning an analogy with those commentators back in the radio days, who having lost phone contact with someone at the game, just made up their play-by-play for an innings or two. In a virtual world after all, what is reality?

Part of the trouble with all this is that copyright is a fundamentally analog idea. If you write it all down in a tangible form you own the copyright. The person who made your pen, or the ink you dip it into might be argued to have some sort of claim, but we all acknowledge that any such claim is more than satisfied by the payment you made for the bottle of ink. Similarly we can, I think, cope with the idea that the manufacturer of the typewriter you used and the ribbon that passed through it, don’t have any ownership in what you type. (I wonder if it’s ever been claimed that something was copyright because it was to be found impressed into a typewriter ribbon.) But things surely become a bit messier when you get to computers, and especially when we arrive on-line. Your ability to make a tangible copy is in some important ways the consequence of a collaboration between you who pressed the keys, and the large team of programmers who ensured that those keys would indeed output what it was you intended. Remove the “you” in the shape of an author, and what an artificial intelligence program “creates”, it seems to me, ought to be just as protectable as the handwritten manuscript. Copyright is probably no longer the appropriate vehicle for all this — but where are we going to find the philosophers of copyright who are going to think our way to the next level?

I suspect that we are currently guilty of over-hyping artificial intelligence. Clearly it can generate a first draft of a newspaper article; maybe with really boring stuff, a final draft, but editorial eyes are no doubt cast. Sure it’s great that your fridge can tell you when you need to buy more milk or whatever, but the trouble with the technology is it can only do things it has learned how to do. And it learns in a pretty power-crunching way: show all the pictures you have of a particular virus to an AI-enabled computer, and sometime soon it’ll be able to identify a particular virus. The trouble with that one turns out to be that most of the photos the computer learned from included a little scale, and the clever machine was learning from the scale. No scale, no virus. Will self-drive cars go through a stop sign if a sparrow is flying in front of it at the wrong moment? Fix that, and what about a sparrow hawk, or a butterfly or two? Optimistic researchers believe that they’ll ultimately be able to see a way to make the computer work in a way analogous to the way our brains work. If we understood how the brain works in any detail this might make a bit more sense, but at the moment we think we understand only that consciousness and the brain work in some ways like a computer — which is a nicely circular way to approach building a computer to do what a brain does. We are clever — but I’m willing to bet we’re not clever enough to mimic consciousness in a machine. (I certainly won’t be around to have to eat my words or pay off!)


* A few years back Rod Stewart was sued for copyright infringement because he used a photo of the back of his head on a poster advertising a Las Vegas show. A photographer who had a few years previously photographed the back of Stewart’s head for a Stewart album cover, sued for copyright infringement because the idea was too close to their copyrighted image. It’s a wonder the barber didn’t sue too. Louis Menand discussed this example of crazy law in a New Yorker piece entitled Copywrong in 2014.

Here’s a Michael Healey piece at Publishing Perspectives from a few years back. He confesses that ‘Copyright has come to be seen by many outside our industry as an inhibitor to creativity’ and who am I to say him nay? Rights holders all too often seem to be more concerned (entirely appropriately as the law’s written) with their financial return than with the good of the community. Notoriously farmers have been being prevented from tinkering with tractors they’d paid for. The Economist has a piece on the right to repair movement. Describing bright ideas as “intellectual property” may be at the root of the problem: obviously we’re going to want to protect our property, even if we came by it as a result of years of education, the results of lots of other experiments, discussions with colleagues, conversations with our wife late at night, or editorial tweaks. Not much chance of changing that of course.

The original purpose of copyright was “to promote science and the useful arts”, not ensure tractor manufacturers a flow of repair work from purchasers of their products. Techdirt has a piece going to the fundamentals and proposing a complete rebuild from the ground up so that copyright can cease impeding and start encouraging learning as originally intended. Unfortunately like so many commentators Mike Masnick is strong on identifying and deploring the problem, weak on suggesting directions for improvement. And who can blame him? Congress’s mind is elsewhere nowadays, but some major reform of copyright is likely to be coming in a year or two. It’s just become too hard to shoehorn new technologies into the old mold. I still like my Copyright three ways idea.

The Digital Reader reported on 7 December 2015 on changes made in Britain which appears effectively to give the designer of any man-made object copyright in any reproduction (and this would include a photograph) of that object. Publishers would have to clear permissions retrospectively or end up wasting stock of some books. He also detects signs of contagion in USA. This seems to tie back to the monkey and the selfie: if only in the craziness department.


In 1717 a French slave ship was captured by the English pirate Blackbeard. He renamed it “Queen Anne’s Revenge” and started using it as his flagship. It had 40 cannons and a crew of 300 jolly men, and would sail around the Caribbean and up the eastern coast of the America colonies. But in 1718 it ran aground just a mile off Beaufort, N.C. and sank.

Blackbeard’s pirate career seems to have lasted just a couple of years and his reputation for violence (and success) to have been somewhat exaggerated. In particular there seems to be no justification for the tale that he’d go into battle with his pigtails on fire which in this picture he seems to be doing just for fun.

In 1996 the sunken vessel was discovered by marine salvage company Intersal, Inc. Under federal and state law the remains of sunken vessels belong to the state, and the state commissioned Intersal to recover the ship. The company hired Frederick Allen to make a video record of the operation. Mr Allen would register copyright as he went along. The State of North Carolina began publishing photos of Mr Allen’s work on its website, and when he objected, made a settlement in 2013 with him of $15,000 for one such copyright infringement, but continued to make similar uses of his work. Ultimately Mr Allen sued the state in Federal Court. The Supreme Court of the United States just decided that states remain immune from prosecution for copyright infringement. Naturally the case isn’t as straightforward as that, and you may read more detail at NPR‘s story by the inestimable Nina Totenberg.

But the long and short of it appears to be that you cannot sue a state for copyright infringement, though Congress does appear to have made some efforts to allow this, and I suppose may try again sometime in the future if it ever has the time.

The Scholarly Kitchen has a useful discussion of the state of play on the vexed question of whether a work produced by a computer can be protected by copyright. Thus far the thin red line is being held, and only works created by human beings can be copyrighted: animals, plants and machines are out of luck. After all if every possible combination of words were to be copyrightable, this would seem to mean the end of copyright, since anyone (merely human) writing anything would have to acknowledge that it could theoretically already have been written by some busy AI program.*

Of course we don’t yet have our Library of Babel, and until a “work” is recorded in some tangible form, it can’t be copyright — so if you are composing a magnificent verse epic in your head as you do your ten-mile runs, write the damn thing down before some machine beats you to it. Verse seems to be the area in which AI is currently performing best: lots of associative adjectives, and an ability to disguise a lack of logical argument. (See also Robot writer.) However I did write last year about Springer’s publishing of a machine generated survey of recent research. It’s not clear from the accounts about this volume whether Springer, or an “author”, is claiming copyright in this work. Probably not too important as this is not the sort of stuff you’d want to pirate.

I bet what’ll happen will be that machines will busily write away and some person or other will step forward to claim that they in fact wrote the book, for which they’ll then take out copyright. After all, even today your computer provides you will spellcheck and word prompts. Nobody thinks that these things represents a diminution of authorial creativity, so why not the next step, and then the next step, and so on. As long as you claim you wrote it yourself not your iPhone, who’s to know any better?

Of course come to think of it, in a Library of Babel world where everything is already available what is the value of something called copyright whose main job is to encourage writing?


* This puts me in mind of the recent story about a couple of guys who have written down every melody there could ever be.

Many musicians have been sued to the tune of millions of dollars, over melodies they wrote which courts have decided originated in a previous song. Damien Riehl and Noah Rubin have programmed up a way to make every melody ever written, or not yet written, available in the public domain. It’s all just mathematics after all: there’s a finite number of possible combinations of eight notes, and maybe creating a melody is nothing more than spiritually accessing a pre-exisiting database of all possible melodies.

If you don’t see a video here, please click on the title of this post in order to view it in your browser. Thanks to David Crotty at The Scholarly Kitchen for the link.

But will this work? Chris Meadows at TeleRead doubts it. Of course, as Mr Riehl admits copyright suits can be about more than just melodies, but some have been about melody alone, and to the extent that his hard drive does represent a copyrightable work it may reduce legal traffic. But does the collection of melodies not fail because of the ruling that only works created by humans may be copyrighted? Takes a law suit to discover what’s legal.


I did a post last September about the lawsuit being brought by the Association of American Publishers against Audible because of its desire to use the text, generated by AI from their audio stream, as a sort of subtitle track to its audiobooks. The publishers argued that the text represents a copyright item not covered by the sublease of the audio rights. Now the lawsuit has been settled in the publishers’ favor says Publishing Perspectives.

This video demonstrates what Audible Captions looks like.

If you don’t see a video here please click on the title of this post in order to view it in your browser.

The case has been decided out of court, and under the terms of the settlement Audible agrees to obtain permission from the publisher (if that publisher is a member of the AAP) before applying the Captions feature to audiobooks. Amazon, owners of Audible, has agreed to extend the agreement to cover books published by any publisher, member of AAP or not — as reported by The Digital Reader. This means that if you see Captions when you are “reading” your Audible audiobook you can rest assured that, if it’s a copyright work, permission will have been granted by the publisher and that this will mean that some sort of payment has doubtless been made to the author.

This whole shebang may not constitute a massive advantage for the reading public. If you really want the text would you not be reading the book? If you want the audio, do you really need the stress of trying to keep up with the printed words? Obviously some will want to attend to both, but I wonder how many. No harm, of course, in such a service being available, as long as it’s being done within the limits of the copyright law. If you really want it, now you’ve got it, though there seems to be uncertainty about how much Audible’s going to use the feature. Reports suggest that Captions may actually only appear on books already in the public domain. Which may in itself be a comment on the actual value of this feature.

Golden Goose Publishing brings us the poems of Donald J. Trump, compiled from presidential tweets — literary productions which surely secure the place of our first gentleman (!) as our first poet. As the publisher describes the work:

“Combining the measured contentiousness of Thoreau, the terse poignancy of Hemingway, and the incisive social commentary of Ta-Nehisi Coates and Toni Morrison, Donald J. Trump has emerged as one of the leading poets of his generation. Together with contemporaries such as Rupi Kaur and Haruki Murakami, Trump has helped bring about a revolution in twenty-first-century literary expression. Considered one of the most inventive poets in a digital world, Trump masterfully uses technology and the written word to reflect and shape the hearts and minds of his culture.

His words, at times inspirational, often fractious, always display a brilliant creative mind for linguistic inventiveness. His work continues to challenge the boundaries of what language is — as well as what it is capable of. 

This collection sheds light on the depth of his creative genius as well as the breadth of his mastery of a wide range of topics and his ability to deftly communicate across the emotional spectrum. We, the collectors of this volume, humbly present this collection of works in hope that it may move you, enlighten you, inspire you, and — above all — that you will appreciate the poetical genius of our time, Donald J. Trump.”

$39 (+ freight) required to obtain your own a copy.

We owe knowledge of this important addition to our nation’s literary heritage to Book Patrol. (A search of Amazon reveals that there are a couple of other publishers who have already had the same idea.)

In a related creative adaptation of presidential tweets, we acknowledge President Supervillain (@PresVillain on Twitter) a melding of the president’s actual words into pre-exisitng comic book artwork: e.g.:

Now publishing a selection of someone’s tweets rearranged into verse form might seem to raise a question of copyright. Are Golden Goose laying themselves open to a law suit from our tippy-topmost litigator over copyright infringement? Government communications are not copyrighted, but of course many (most/all? I don’t study this) of the author’s tweets are coming from his personal account. While the consensus seems to be that tweets are not copyrightable, the opinion rests on their brevity and specific subject matter, which it seems to me might not be directly relevant here. WIPO Magazine has a short description of the situation. The trouble of course is that new technologies come up with new ways of creating content, some of which cannot of necessity be covered by copyright law, having been no more than a gleam in someone’s eye when the law was complied. A revision of copyright law will obviously address this, and lots of other, issues.

One might argue that President Supervillain gets by on the basis of parody, an exemption to the need for permission under our current copyright law. Maybe Golden Goose can argue the same. The trouble, as ever, with copyright law exemptions is that you’ll never know whether you are right or not until you’ve been sued.