And Of Course: Authors Guild Asks Supreme Court To Overturn Fair Use Ruling On Google Books

from the fighting-technology-every-step-of-the-way dept

Back in October, the 2nd Circuit appeals court issued a really wonderful fair use win on the long-running (and somewhat ridiculous) lawsuit that the Authors Guild had filed against Google Books. The decision -- written by Judge Pierre Leval, who has long been a key player on issues of fair use -- was decisive and clear. It capped a ridiculously long process, in which the Authors Guild lost at every stage, wasting the money of its members. The ruling was quite clear that Google Books was transformative and did not compete with the original works. It also highlighted how it benefited the public. A key part of the ruling:
The ultimate goal of copyright is to expand public knowledge and understanding, which copyright seeks to achieve by giving potential creators exclusive control over copying of their works, thus giving them a financial incentive to create informative, intellectually enriching works for public consumption. This objective is clearly reflected in the Constitution’s empowerment of Congress “To promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their respective Writings.” U.S. Const., Art. I, 7sect; 8, cl. 8) (emphasis added). Thus, while authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public, whose access to knowledge copyright seeks to advance by providing rewards for authorship.
We noted at the time that it was likely that the Authors Guild would ask the Supreme Court to rehear the case -- and according to the Washington Post, that is exactly what's happening. The filing claims that this is a massive and unprecedented expansion of fair use, and wants the Supreme Court to fix things:
This case represents an unprecedented judicial expansion of the fair-use doctrine that threatens copyright protection in the digital age. The decision below authorizing mass copying, distribution, and display of unaltered content conflicts with this Court’s decisions and the Copyright Act itself. This case also presents important issues on which the circuits are split, highlighting the need for this Court to act.
As we noted in our post about the original ruling, it's not clear that there's really a circuit split here, no matter what the Authors Guild wants to claim. The Authors Guild tries to manufacture a circuit split by arguing that multiple other courts have said the "transformative use" test requires "new creative expression" but it seems to be making that up. Yes, that's one form of transformative use, but not the only one.

The Supreme Court rejects most petitions to hear cases, so it wouldn't surprise me if it turns this one down as well. That would be the best overall result. The 2nd Circuit ruling is clear and concise -- and given the Supreme Court's history on copyright issues, there's a half-decent chance that even if it came to the right overall decision, the justices would muck it up in some way in the process. Either way, if the Supreme Court does take the case, this will be a key one to follow.

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  1. icon
    toyotabedzrock (profile), Jan 4th, 2016 @ 4:04pm

    If copyright is supposed to be limited in duration from the author's point of view, which is how you encourage further creation of new works, then how is extending past death legal?

    If it lasts past death then the copyright term is perpetual in relation to the author.

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  2. identicon
    Anonymous Coward, Jan 4th, 2016 @ 4:12pm

    "Fair use isn't fair that it's fair."

    reply to this | link to this | view in thread ]

  3. icon
    Alien Rebel (profile), Jan 4th, 2016 @ 4:34pm

    the Authors Guild lost at every stage, wasting the money of its members.

    It's been a while since I've had a look at the Authors Guild form 990 tax returns; a quick look at their latest return available on Guidestar shows dues revenue of $913,560. With total functional expenses of $3,156,111 I'm somewhat curious about just who's money it was that got spent. Authors Guild EIN is 13-2509231 for any of you financial nerds who want to dig.

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  4. identicon
    Anonymous Coward, Jan 4th, 2016 @ 4:44pm

    "Judicial expansion". Isn't the very concept of fair use one that originated with the courts?

    reply to this | link to this | view in thread ]

  5. identicon
    Capt ICE Enforcer, Jan 4th, 2016 @ 4:47pm

    Let's hope for Supreme Court to rule

    I disagree about not having the Supreme Court rule on this matter. After all, they were able to transform Aero into a Duck, but not a Duck at the same time. If that isn't imagination and transformation at its best, then I don't know what is.

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  6. identicon
    Anonymous Coward, Jan 4th, 2016 @ 5:10pm

    Re:

    Isn't the very concept of fair use one that originated with the courts?
    During the 19th century, the conception and scope of copyright changed considerably. At the beginning of that century, copyright was seen simply as right to a manufacture a particular book. Even then, the courts would not countenance trivial variations on the book intended merely to evade copyright. That bar against trivial variation expanded throughout the course of the century. By the end of that century, copyright was conceived more abstractly, as protecting an author's work, including what we now call derivative uses.

    Concomitantly, uses that at the beginning of the 19th century were simply seen as outside the scope of copyright, were, by the end of that century, sometimes seen as fair use, or else otherwise had simply been brought within an expanded scope of copyright.

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  7. icon
    JBDragon (profile), Jan 4th, 2016 @ 5:20pm

    I don't have a problem with Copyright in general. I don't think anything should have a Copyright on it of more then 20 years at most. if the person is DEAD, the copyright should end. It shouldn't go on forever so that family members for generations are still collecting it.

    Does anything go into the Public Domain any more?

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  8. identicon
    Anonymous Coward, Jan 4th, 2016 @ 5:21pm

    According to this court corporations are people too, and sodomy is an acceptable way to consummate a marriage. I am for equal rights under the law. Though that shouldn't depend on what the possible meaning of is, is.

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  9. icon
    Chris Meadows (profile), Jan 4th, 2016 @ 6:04pm

    I think they'll hear it

    As I wrote here, I think they'll give the Apple case a miss, as it's basically a bog-standard antitrust case, but I think they will take the Google Books case.

    As the Authors Guild points out, SCOTUS hasn't had a major fair-use case before it in something like 20 years, which means the entire Internet has grown up and become a public thing since then without any SCOTUS jurisprudence, and this case definitely deals with some Internet-age questions (like whether it can be considered fair use to make a search engine for someone else's content). I don't think they'll pass up the chance to rule on it.

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  10. identicon
    Anonymous Coward, Jan 4th, 2016 @ 6:19pm

    Re: I think they'll hear it

    … some Internet-age questions (like whether it can be considered fair use to make a search engine for someone else's content).
    Did you mean to state that question as broadly as you did?

    That is, did you mean to ask whether Google needs a license to index websites? After all, most websites are “someone else's content”.

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  11. icon
    Michael Barclay (profile), Jan 4th, 2016 @ 7:07pm

    Two glaring omissions in the cert petition

    There are two glaring and interesting omissions in the cert petition:
    (1) The petition doesn't discuss the fact that the Authors Guild failed to petition for cert. after it lost the related HathiTrust case. There, the Second Circuit held that (a) the libraries' use of the digitized books was a fair use, and (b) the Authors Guild didn't have standing to bring an copyright claim as an association. The Authors Guild should be precluded from rearguing these points any further. This should dispose of the 3rd and 4th questions presented.
    (2) In 1990, Judge Pierre Leval wrote what is widely accepted as the leading article on fair use. The Supreme Court cited the article about 16 times in the Campbell case. The article is highly instructive on the 1st question presented . . . yet the petition doesn't mention or cite it at all. Perhaps that's because Judge Leval wrote the Second Circuit opinion under review here.

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  12. identicon
    Glenn, Jan 4th, 2016 @ 8:24pm

    Who knew... that copyright would be the downfall of civilization.

    reply to this | link to this | view in thread ]

  13. icon
    That One Guy (profile), Jan 4th, 2016 @ 8:54pm

    Re:

    Given it wasn't too long ago that it was revealed that the *AA's were 'funding' a state attorney general to fight 'Goliath', it wouldn't surprise me in the slightest if they've been 'generously donating' funds to the Authors Guild so they can continue to go after Google.

    Why do it directly when you can pay someone else to do it for you?

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  14. icon
    Chris Meadows (profile), Jan 4th, 2016 @ 9:16pm

    Re: Re: I think they'll hear it

    As a matter of fact, I did. And that's part of why I think SCOTUS will take the case—to settle that question once and for all. Because the only real difference between Google Books and Google web search is that it's a whole lot easier, physically, to spider the web than it is to scan and OCR paper books.

    And yet, in both cases, Google is copying content that doesn't belong to it. (I read somewhere that in order to index the web, Google creates multiple complete copies of the entire Internet on its own servers. Something like five or six complete copies at any given time.) In both cases, it permits people who don't want to be indexed to opt out (by submitting a form with Google Books, or by using a robots.txt file with Google web search).

    And the odd thing is, nobody seems to kick up any fuss about Google indexing the web—and certainly there haven't been any major legal rulings on it, as far as I know. And yet, by doing so Google is copying everybody else's content, multiple times, without asking permission ahead of time. Just as it's doing with Google Books.

    If Google Books was found to be illegal, it would not only shut down Google Books, but would also throw the entire notion of indexing the web itself into doubt. And there hasn't been a major ruling yet on either kind of search engine. I think SCOTUS will take this chance to make one.

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  15. identicon
    Anonymous Coward, Jan 4th, 2016 @ 9:32pm

    Re: Re: Re: I think they'll hear it

    [N]obody seems to kick up any fuss about Google indexing the web—and certainly there haven't been any major legal rulings on it, as far as I know.
    Perfect 10 v Google (9th Cir 2007) ?   Just recalling a ruling off the top of my head. I'm thinking especially about the thumbnail issue in that case.

    Anyhow, I guess it does depend on how you characterize a legal ruling as “major”.

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  16. icon
    Chris Meadows (profile), Jan 4th, 2016 @ 9:35pm

    Re: Re: Re: Re: I think they'll hear it

    Good point, but did that one make it out to SCOTUS? It might end up being one of the precedents cited regardless; who knows.

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  17. identicon
    Anonymous Coward, Jan 5th, 2016 @ 12:00am

    Re:

    copyright is for the life of the author plus 70 years.

    reply to this | link to this | view in thread ]

  18. identicon
    Anonymous Coward, Jan 5th, 2016 @ 1:31am

    Re: Re:

    And if you're the author, and the copyright extends past your death then "the copyright term is perpetual in relation to the author"...

    reply to this | link to this | view in thread ]

  19. icon
    Seegras (profile), Jan 5th, 2016 @ 3:58am

    Re:

    Yesyes, People already fought in 1841 against the expansion of the duration to after the authors death:

    http://homepages.law.asu.edu/~dkarjala/OpposingCopyrightExtension/commentary/MacaulaySpeeches.html

    An d actually, Macauley was right with absolutely all of his predictions:

    And you will find that, in attempting to impose unreasonable restraints on the reprinting of the words of the dead, you have, to a great extent, annulled those restraints which now prevent men from pillaging and defrauding the living.

    reply to this | link to this | view in thread ]

  20. icon
    Whatever (profile), Jan 5th, 2016 @ 5:18am

    Death and Values

    One of the reasons copyright doesn't end at the moment of the authors death is because that would make it a lot harder to place an economic value on a book. Imagine if you will someone who is dying of an incurable disease, who writes a masterpiece. What is it's economic value? Since the resell time would be incredibly short (perhaps days) or might even occur after the death, then the work would be economically worth very little, as there is little chance that anyone would want invest in something which could be public domain in the morning.

    Copyright is often not just licensed, but sold outright. When do you consider a company dead? What happens if the company never ceases to exist? Would it be granted a longer copyright (it's life ) than someone else?

    Death is arbitrary. A celebrated author today could be tomorrow's hood ornament for a city bus. Does her heirs deserve a lesser value from her efforts because she didn't look both ways before crossing the street?

    As for the story itself, the real question here for me is the simple: "is converting something from printed matter to digital format transformative in nature?". Does the court ruling essentially mean that each author would have to file a copyright case individually to find out where they really stand? Does the court system really want to retry essentially the same case for every copyright literary work? There is a point where SCOTUS maybe could add some light in the situation, because if moving something to digital is transformative, then it's pretty much free game for any work out there.

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  21. identicon
    Anonymous Coward, Jan 5th, 2016 @ 6:37am

    Re: Death and Values

    as there is little chance that anyone would want invest in something which could be public domain in the morning.

    Which is why it is impossible to find copies of the Iliad, Odyssey, the Canterbury tales, Beowulf and the works of Shakespeare amongst other ancient works are not available today, and that is why nobody knows that they exist.

    reply to this | link to this | view in thread ]

  22. identicon
    Anonymous Coward, Jan 5th, 2016 @ 6:39am

    Re:

    In the world of copyright, what else originated in the courts?
    IIRC, copyright was originally intended to control the business of (as in not private) making and selling copies of printed material. Only recently has this been aimed at private individuals, and guess what ... it was the courts who did it - right?

    What does "legislating from the bench" mean?
    1) It means that you do not agree with the court ruling.
    2) It also means that you think the issue being ruled upon is clearly defined and therefore not open to interpretation.

    Now I'm sure some out there will claim that the courts need to "keep up with technology" and should redefine the laws every so often. Well, that is what happened here right - including copyright extension, who is affected and .... fair use. Go figure.

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  23. identicon
    Anonymous Coward, Jan 5th, 2016 @ 6:42am

    Re: Death and Values

    That last part is both insanely stupid, and the only rational response, but it leads to a maddening trail of 'is-it-isn't-it'.

    reply to this | link to this | view in thread ]

  24. identicon
    Anonymous Coward, Jan 5th, 2016 @ 6:43am

    Re:

    So ... if one ruling does not met your expectations then all rulings are equally wrong?

    reply to this | link to this | view in thread ]

  25. identicon
    Anonymous Coward, Jan 5th, 2016 @ 6:51am

    Re: Death and Values

    "as there is little chance that anyone would want invest in something which could be public domain in the morning."

    This is probably the highest priority question that crosses my mind prior to any book purchase. It far exceeds the question of whether I may find the book of interest or whether said book will meet my research needs. My investment in a book solely resides upon the perceived value of said book in seventy years - because the resale value is very very important .... wait - I am not allowed to resell my book purchases? wtf? Screw it, not buying any more books.

    reply to this | link to this | view in thread ]

  26. icon
    That One Guy (profile), Jan 5th, 2016 @ 6:55am

    Re: Death and Values

    Copyright's job isn't to assign value to a work, that's up to the market and/or public. Copyright's 'job' is simply to provide incentive to creators so that they create more(high quality, low quality, doesn't matter), and (theoretically) have the public benefit more as a result.

    If someone on their deathbed doesn't want to write/finish a book because it won't benefit them for more than a short period of time, good riddance, there are more than enough people who will create, rewards or not, to make up the slack.

    Death is arbitrary. A celebrated author today could be tomorrow's hood ornament for a city bus. Does her heirs deserve a lesser value from her efforts because she didn't look both ways before crossing the street?

    Put bluntly, so what?

    The author could have been turned into road pizza, and the book could have bombed spectacularly, are the heirs owed anything in that case?

    Say the creator was a craftsman with a valuable business making customer furniture, one that had a steady stream of customers, and plenty of money. However upon their death the business tanks, as without their skill in making custom pieces the number of customers shrink, until they finally go elsewhere entirely.

    Before the creator died, the business brought in money. After they died, it was near worthless. The question is, were the heirs cheated because what had benefited them while the creator was alive now does not? Are they owed something simply because the business/creations used to be considered valuable?

    The 'deal' of copyright is meant to be one of creator and public, not creator, any heirs they have and/or any companies that might buy up the rights and the public. Just because the creator may buy it shortly after they make something it does not automatically follow that the heirs deserve to be 'compensated' with the same monopoly rights as a result.

    There is a point where SCOTUS maybe could add some light in the situation, because if moving something to digital is transformative, then it's pretty much free game for any work out there.

    If all Google Books was doing was 'moving something to digital', you might have a point, but this is not the case.

    Google Books digitize the books, and while they do make them searchable for research and similar purposes, it's presented in a limited fashion, such that it's hardly the case that you can just hit up Google Books and read a bunch of them for free. You can read excerpts, but only strictly limited ones, making it a good tool for research or looking for a particular phrase/fact, but not much else.

    reply to this | link to this | view in thread ]

  27. icon
    That One Guy (profile), Jan 5th, 2016 @ 7:02am

    Re: Re: Death and Values

    Not just book purchases, I'm sure the vast majority of books throughout history, if not all of them, were written solely because authors knew that thanks to copyright they'd be granted a valuable monopoly right by the government that they could use to get all the profits they, and their heirs were owed.

    The idea that anyone would write, or paint, or make music simply to write, or paint, or make music, to turn an idea in their head into something real, something they could share with others is pure absurdity; clearly people have only, and will only, create when they are assured of making money from it and maintaining an iron-grip on their creations.

    reply to this | link to this | view in thread ]

  28. icon
    Whatever (profile), Jan 5th, 2016 @ 7:30am

    Re: Re: Re: Death and Values

    It's pretty funny to watch you guys pile on. Nobody says the books wouldn't get written (or the movies made, or whatever) but with a copyright term that could end at any time, it would be less likely that companies would be willing to take a risk, or might pay significantly less to an author for the rights if the book might be in the public domain the next day. It wouldn't stop the authors from writing, it might just make it harder to market their work or get decent distribution or exposure.

    Repeat: I never said people wouldn't write. It's entire an economic question, not a creation question. Creation would continue, but you and I might never know - we might never get to know the work.

    reply to this | link to this | view in thread ]

  29. icon
    That One Guy (profile), Jan 5th, 2016 @ 7:42am

    Re: Re: Re: Re: Death and Values

    You could say the same of any copyright that might end at any time during the company's 'lifetime'. A copyright might not last for the entire duration of the company, it might go into the public domain(I jest of course) half-way through, or after only a decade or so.

    If 'We can't buy the rights to this, the creator might die' is a serious consideration to whether or not a company is willing to invest in doing so, rather than 'We want the rights to this because we think we can make a profit selling it', then the priorities of the company are completely shot.

    Repeat: I never said people wouldn't write. It's entire an economic question, not a creation question. Creation would continue, but you and I might never know - we might never get to know the work.

    Given there is more being created now than ever before in history, large chunks of it in spite of copyright, rather than because of it(fanfics, remixes of all sorts, that sort of stuff), the same is true for everything created.

    I've no doubt that there are some downright masterpieces I'm missing out on, simply because I don't know about them, so I wouldn't lose any sleep if a few works slip through the cracks because some company didn't want to take a risk on something in case the creator might die at some point in the near future, especially if having copyright end at the death of the creator lead to even more stuff being created, as I imagine would be the case.

    reply to this | link to this | view in thread ]

  30. icon
    Whatever (profile), Jan 5th, 2016 @ 7:42am

    Re: Re: Death and Values

    "Copyright's job isn't to assign value to a work, that's up to the market and/or public. Copyright's 'job' is simply to provide incentive to creators so that they create more(high quality, low quality, doesn't matter), and (theoretically) have the public benefit more as a result. "

    Copyright doesn't assign value, that's silly. It does however create certainty about a certain type of ownership and control, which is important in defining economic value. It doesn't assign value.

    "Say the creator was a craftsman with a valuable business making customer furniture,"

    The difference here is that the craftsman is paid full value for each work as he goes along. Build a table, sell it for $1000, end of story. A writer may write a book that sells a million copies, and generates tens of millions of dollars, but it does not do that in a single sale. Rather, it happens over a long period of time over many individual transactions - some of which may occur after his or her death. The author may never in their lifetime actually obtain the full market value of their work as a result.

    The writer doesn't sell their work outright (unless they are doing work for hire), but instead sells fractional copies of the work. That process may take longer than the writers lifetime to complete.

    Put another way: If your craftsman sold a table for $1000, but got only $100 today and the rest due next month, and then he died, would his heirs be allowed to collect the other $900? Of course they would. The value of his work didn't disappear because he died, it still has to be paid for.

    As for Google Books, the question remains - is digitizing the works transformative, or derivative? The search is value added after the fact, the work is digitized in it's entirety and stored - the search and presentation are secondardy to the initial making of the copy. Yes, there is benefit in being able to search the work, but where is the creator's choice to be indexed or not? The non-transformative digitizing would appear to violate the rights of the author or rights holder to decide how their work is distributed.

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  31. identicon
    Anonymous Coward, Jan 5th, 2016 @ 7:47am

    Re: Re: Re: Re: Death and Values

    Repeat: I never said people wouldn't write. It's entire an economic question, not a creation question. Creation would continue, but you and I might never know - we might never get to know the work.

    There is so much that is worthwhile , where worthwhile depends on personal taste, published for free on the Internet that a person cannot keep up with it all. However that is a problem most people can live with, and a vast improvement on what happened for most of human history, most works were never seen by anyone but their author.

    reply to this | link to this | view in thread ]

  32. identicon
    Anonymous Coward, Jan 5th, 2016 @ 8:01am

    Re: Re: Re: Re: Death and Values

    "I never said people wouldn't write"

    That may be, but others have.

    reply to this | link to this | view in thread ]

  33. identicon
    Anonymous Coward, Jan 5th, 2016 @ 8:07am

    "ownership and control, which is important in defining economic value"

    I know taking things out of context can led to silly conclusions, but it is fun. So, extrapolating ... the value of shelter over ones head to an individual is not related at all to the health benefits and creature comforts afforded - no, the value is solely a function of who owns and controls it. Bear Gryllis is clearly wrong when he insists upon making a shelter - lol.

    reply to this | link to this | view in thread ]

  34. icon
    That One Guy (profile), Jan 5th, 2016 @ 8:11am

    Re: Re: Re: Death and Values

    Put another way: If your craftsman sold a table for $1000, but got only $100 today and the rest due next month, and then he died, would his heirs be allowed to collect the other $900? Of course they would. The value of his work didn't disappear because he died, it still has to be paid for.

    Except with regards to copyright it's never 'sold' for any set amount, which means there's no 'end' to how much it can be 'sold' for.

    If the heirs are 'due' the value for 10 years after the creator dies, how about 20? 50? 70? 90? If you're going to say that they're owed what the work is 'worth', that being whatever the market determines it's worth, would you say that it should ever fall into the public domain, such that they lose their monopoly control over it? It's still valuable so long as the market is willing to give it value after all, are they not owed the profits from it, even then?

    As for Google Books, the question remains - is digitizing the works transformative, or derivative?

    How could it be derivative? Google isn't scanning the books to re-sell them, modify them, or change them, they're scanning the books to format shift them, so that they can more easily be searched through.

    Yes, there is benefit in being able to search the work, but where is the creator's choice to be indexed or not? The non-transformative digitizing would appear to violate the rights of the author or rights holder to decide how their work is distributed.

    Those rights however are not absolute, otherwise Fair Use wouldn't exist. I'm sure there are any number of authors that would prefer that their works not be indexed in Google Books, and while I can't remember offhand if they can 'opt-out' by sending a request as such to Google, even if they couldn't that wouldn't necessarily mean that Google was overstepping here if their activity was considered Fair Use, as is the case.

    By the same token I'm sure there are any number of things that creators would rather their creations not be used for(parody being the first thing that comes to mind), but it's accepted that the rights of the creators sometimes have to take a back seat to the rights of the public in using those creations. The creator gets a government granted monopoly, but it has exceptions, and if the use of a work is seen as benefiting the public without unduly harming the creator in the process, that's generally considered one of those exceptions.

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  35. identicon
    Anonymous Coward, Jan 5th, 2016 @ 8:32am

    Re: Re: Death and Values

    The book was created though, right? Even if the author dies the next day.

    Copyright of 1 day appears to have been enough of an incentive for this individual to create the book.

    Copyright was not intended, "to promote the financial livelyhood of the author and their heirs for 70 years after their death" it was intended to "promote the progress of science and the useful arts" In this example, one day was apparently enough of an incentive for the author to create the work, there is nothing that guarantees a profit from writing a book...

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  36. identicon
    Anonymous Coward, Jan 5th, 2016 @ 9:09am

    See, here's the problem.

    If you see copyright as primarily an incentive to monetize your work, then anything that detracts from it (like public domain or fair use) must be a problem, right?

    This is probably the kind of worldview publishers operate under.

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  37. identicon
    Anonymous Coward, Jan 5th, 2016 @ 9:13am

    Re:

    Addendum: I mean, really. What IS a publisher, other than an organization that distributes (ergo, copies) works for profit?

    reply to this | link to this | view in thread ]

  38. icon
    PT (profile), Jan 5th, 2016 @ 10:51am

    Re: Re:

    Backward, have it you. Guild, authors's, you are?

    It was Congress that altered copyright law to extend it to things as trivial as your wife's grocery list. Congress removed the necessity to file for it. The act of scribbling it down creates copyright. This comment is copyright. Thanks, Congress.

    "Legislating from the bench" means you do not agree with what Congress told you to do, so you do not enforce Congress's law. Your definition is better known as "jury nullification".

    As for copyright extension, I'm not aware that the late Sonny Bono was a member of the judiciary. I always thought he was a second rate singer who went into politics after his wife dumped him.

    reply to this | link to this | view in thread ]

  39. identicon
    Anonymous Coward, Jan 5th, 2016 @ 11:08am

    Re: Re:

    Isn't the very concept of fair use one that originated with the courts?
    During the 19th century, the conception and scope of copyright changed considerably.
    Btw & fwiw, three commentaries by Oren Bracha in Primary Sources on Copyright sketch out one scholar's view of this changing landscape during the 19th century.

    Commentary on Folsom v. Marsh (1841)
    Folsom v. Marsh, decided in 1841 by Justice Joseph Story (1779-1845) is commonly considered the origin of the Fair Use defense in American copyright law. In reality the case dealt mainly with the scope of copyright protection and the concept of infringement. . . Folsom v. Marsh was an important part of a group of copyright cases decided by Justice Story in the first half of the nineteenth century that began to transform the traditional legal and intellectual framework of copyright law. These cases constituted a shift from a narrow understanding of copyright as a right to print and sell a copy of a particular text to a broader understanding of copyright as a general control of the market value of an intellectual work.
    Commentary on Stowe v. Thomas (1853)
    The case involved a claim of copyright infringement by Harriet Beecher Stowe against a publisher of an unauthorized German translation of her book Uncle Tom's Cabin. The court decided that a translation was not a copy of the original and, therefore, did not infringe copyright. The decision epitomized the traditional approach that conceptualized copyright protection in terms of the limited right to print copies. From this approach followed a narrow understanding of the scope of copyright protection and of the entitlements it included. When Stowe v. Thomas was decided this traditional approach was in decline. It was superseded by a new understanding of copyright as the protection of an intellectual work, irrespective of the exact form or medium of reproduction. The transition was reflected in the fact that nineteenth century copyright commentators harshly criticized the Stowe v. Thomas decision and in the explicit legislative addition of the translation entitlement to copyright protection in 1870.
    Commentary on Copyright Act Amendment (1856)
    The agitation for a public performance entitlement that began in the 1830s and culminated in the 1856 amendment to the Copyright Act were intertwined with changes on the intellectual and material levels. The prevalent understanding of copyright gradually changed from a limited right of reprint to ownership of an intellectual work that entitled the owner to the market profits from any exploitation of the work, irrespective of changes of form and medium.

    reply to this | link to this | view in thread ]

  40. identicon
    Anonymous Coward, Jan 5th, 2016 @ 11:36am

    Re: Re: Re:

    Backward, have it you. Guild, authors's, you are?

    It was Congress…
    In the specific context of fair use, though, L. Ray Patterson's criticism of Folsom v Marsh (1841) (“Folsom v. Marsh and Its Legacy”) is most chiefly directed at Justice Story.
    The fair use doctrine has become so important in American copyright law that it is somewhat surprising to learn that the case credited with creating it, Folsom v. Marsh, was so poorly reasoned that it may be entitled to first place in the category of bad copyright decisions. . . .

    reply to this | link to this | view in thread ]

  41. identicon
    Rekrul, Jan 5th, 2016 @ 12:13pm

    Re: I think they'll hear it

    As the Authors Guild points out, SCOTUS hasn't had a major fair-use case before it in something like 20 years, which means the entire Internet has grown up and become a public thing since then without any SCOTUS jurisprudence, and this case definitely deals with some Internet-age questions (like whether it can be considered fair use to make a search engine for someone else's content). I don't think they'll pass up the chance to rule on it.

    Why would anyone think that having SCOTUS rule on this would be a good idea? I mean sure, a fair use ruling would a good thing, but what are the chances of that actually happening? For some time now, SCOTUS has shown itself to be very pro-corporation (as in the copyright industry, not Google) and they've made some really terrible rulings in the recent past.

    SCOTUS used to be about upholding the Constitution and deciding what's fair. Taking a case before SCOTUS now is just rolling the dice. Will they make an intelligent ruling that is good for the people or will use the opportunity to hand even more power to big corporations?

    reply to this | link to this | view in thread ]

  42. identicon
    Rekrul, Jan 5th, 2016 @ 12:22pm

    I know most people are talking about copyright here, but while reading this article, another questions popped into my head;

    Why do we have so many different levels of courts? It's not like any of them really deliver a final ruling. Two parties go to court and whichever party loses, they appeal the ruling to the next highest court. Whichever party loses at that court then appeals the ruling to the next highest court and so on.

    reply to this | link to this | view in thread ]

  43. icon
    Anonymous Monkey (profile), Jan 5th, 2016 @ 1:30pm

    Re: Re: Death and Values

    ...copies of the Iliad, Odyssey, the Canterbury tales, Beowulf and the works of Shakespeare amongst other ancient works...


    irony at it's finest.

    Funny how these things that are readily available, have a lasting impression, are STILL sought after, and DO make publishers money, can't be claimed as being owned because they are in the public domain.
    They have no copyright attached... nobody who "owns" it.... is there anybody who doesn't benefit from them being in the public domain?

    People can find it readily...
    Publishers are free to print it... and make money from printing...
    The public at large benefits from the cultural history...

    hmm.. I don't see any ...

    reply to this | link to this | view in thread ]

  44. icon
    Whatever (profile), Jan 5th, 2016 @ 3:12pm

    Re:

    "If you see copyright as primarily an incentive to monetize your work"

    I don't. You are missing the point entirely. Copyright defines ownership. When someone can be owned, it can be bought, sold, transferred, loaned, or kept to one's self.

    Ownership of physical property is no different. For some, that ownership implied economic value, for others it brings anything from safety to pride. Economic value is only one of the things that comes from legally defined possession.

    "This is probably the kind of worldview publishers operate under."

    They are primary economic players, so yes, they are much more likely to see things in economic terms. That someone can create and work and reliably be able to sell rights (or an entire work) with certain guarantees of ownership under the law is pretty important. It's not the only parts, but for publishers, it's the important part. It's also important for many writers who write not just for the love of writing, but for economic reasons. We likely would not have all the works of Philip K. Dick if it were not for economic reasons, as an example.

    reply to this | link to this | view in thread ]

  45. icon
    Whatever (profile), Jan 5th, 2016 @ 3:30pm

    Re: Re: Re: Re: Re: Death and Values

    "If 'We can't buy the rights to this, the creator might die' is a serious consideration to whether or not a company is willing to invest in doing so, rather than 'We want the rights to this because we think we can make a profit selling it', then the priorities of the company are completely shot."

    The problem here is that they are not mutually exclusive statements. They want to make a profit. But the first year or two may not be profitable, and the real profit may be made on the long tail of the work where every copy sold is nearly full profit. So if the copyright disappeared on the second day of the contract because of a fatal car crash or whatever, then every other company could quickly move to bring the same book to market and deny them the time required to be profitable.

    The end result might be different deals with authors that would not be as financially beneficial to the writer, to protect profits. For that matter, it might lead to economic motivated murders, where writers are killed so other companies can bring popular works to market as they have "recently fallen into the public domain".

    "especially if having copyright end at the death of the creator lead to even more stuff being created, as I imagine would be the case."

    There is little indication that this would offset the opportunity cost losses when authors can't write full time, and are instead required to take other jobs to pay their bills. While many authors struggle to get their first successful work out, after that point the income helps them to be able to spend more time writing and less time doing other things to make money.

    reply to this | link to this | view in thread ]

  46. icon
    MrTroy (profile), Jan 5th, 2016 @ 9:50pm

    Re: Re: Re: Death and Values

    As for Google Books, the question remains - is digitizing the works transformative, or derivative?

    Google Books is expanding the market for old books by making them discoverable. It does not substitute for the original product because there's no way to get the entire content of the scanned book. It directs the user to places to purchase the book, if it's available anywhere for sale.

    The comparison to web indexing above is apt; why does anyone not want people to discover their work?

    Put another way: If your craftsman sold a table for $1000, but got only $100 today and the rest due next month, and then he died, would his heirs be allowed to collect the other $900? Of course they would. The value of his work didn't disappear because he died, it still has to be paid for.

    Sure, but that's contract law rather than copyright. I agree with you that copyright shouldn't end at the creator's death - something like 14 years on registration + 14 years on optional renewal makes more sense to me, and I very much doubt we'd lose much in the way of culture from people deciding they don't want to create any more because they are only offered 28 years of exclusivity... after which they can continue selling exactly as they did before but will simply have to compete with other copies (which may or may not appear).

    reply to this | link to this | view in thread ]

  47. icon
    MrTroy (profile), Jan 5th, 2016 @ 11:17pm

    Re: Re:

    "If you see copyright as primarily an incentive to monetize your work"

    I don't. You are missing the point entirely. Copyright defines ownership.


    Actually, I think you're missing the point.

    Copyright is primarily an incentive to produce copyrightable works in the absence of any other motivation.

    If copyright didn't exist, of course we would still have new music, and paintings, and photography, and books - we had all of those (except photography) long before we had copyright. The apparent goal of copyright is to encourage the creation of more works, in an exchange that allows those works to eventually be used by anyone - there's not much difference to the people who were creating before copyright (and would create now without copyright), so it's only those others who are only creating because of copyright that see copyright as primarily an incentive to monetize their work. Everyone else sees copyright as primarily an incentive for more works to be available to the public.

    Ownership of physical property is no different.

    And yet it's nearly trivial to prevent you from relieving me of ownership of my physical property, and nearly impossible to prevent you from relieving me of ownership of my intangible property.

    A book is physical property and can be limited to single ownership. A story is intangible, and there is no way to limit its ownership - once someone knows the story, it cannot voluntarily be forgotten. Digital goods make things tricky because you want to treat it like a physical object in the days when copying that object were hard...

    Now we can share a book or a song as easily as a joke, and models based on the physical(-only) world just don't fit. Trying to make them fit regardless leads to the situation today - where people infringe on copyright as easily as they share a joke, and think as little of it. They maybe read about massive lawsuits against random people for something to do with copyright, but what does that have to do with them?


    And an aside...
    When someone can be owned...
    I know this was a typo, but I found it a pretty funny one.

    reply to this | link to this | view in thread ]

  48. icon
    That One Guy (profile), Jan 6th, 2016 @ 1:42am

    Re: Re: Re: Re: Re: Re: Death and Values

    The problem here is that they are not mutually exclusive statements. They want to make a profit. But the first year or two may not be profitable, and the real profit may be made on the long tail of the work where every copy sold is nearly full profit. So if the copyright disappeared on the second day of the contract because of a fatal car crash or whatever, then every other company could quickly move to bring the same book to market and deny them the time required to be profitable.

    Or the book could bomb for any other number of reasons(poor promotion, strong competition that year, readers don't care for it), such that they break even if they're lucky, if not flat out lose on the deal. Those picking up the rights to books and whatnot already have no guarantee that they'll be able to make back their purchase amount, and yet they still continue to pay for them all the same.

    If anything the idea that an author might drop dead at some point, and they lose their exclusive ability to sell the work has much lower odds than other obstacles for them making their money back, so I'm not seeing how the change would have that much of an impact.

    The end result might be different deals with authors that would not be as financially beneficial to the writer, to protect profits.

    Different authors might get different deals, based upon what the one offering the deals think they can get away with. Yeah, that would be so very different from how things currently work. Publishing companies already strive to make sure that the deals they sign are as beneficial to them as possible, I really don't see the idea that 'you might die, making the rights to your book worth less, therefore we won't pay as much' changing that much at all, especially with the various alternatives popping up and increasing the author's bargaining power.

    For that matter, it might lead to economic motivated murders, where writers are killed so other companies can bring popular works to market as they have "recently fallen into the public domain".

    I was wondering if you'd be able to resist bringing that argument up, given how incredibly stupid it is. Murder is already illegal, very much so. The idea that anyone would risk being charged with murder just to maybe make a few bucks with a non-exclusive ability to sell something is beyond insane.

    There is little indication that this would offset the opportunity cost losses when authors can't write full time, and are instead required to take other jobs to pay their bills.

    As I noted above, I really don't think copyright ending at death would have any significant impact on contracts, but even if it did, so what? Even if a few authors had to do something besides write for a living, with copyright being notably cut back a lot more works would be available to build off of, and I imagine that would more than make up for the decrease in creativity from a handful of writers.

    reply to this | link to this | view in thread ]

  49. icon
    PT (profile), Jan 6th, 2016 @ 5:51pm

    Re: Re: Re: Re:

    I don't recall commenting on fair use.

    reply to this | link to this | view in thread ]

  50. identicon
    Anonymous Coward, Jan 6th, 2016 @ 8:33pm

    Re: Re: Re: Re: Re:

    I don't recall commenting on fair use.
    Look at the comment that started this thread. The person to whom you were replying was themselves replying within that context of that comment, as well as within the larger context of the article —about the petition for certiorari— and Judge Leval's opinion for the 2nd Circuit.

    If you want to carry on a conversation entirely divorced from everyone else's context, well…

    reply to this | link to this | view in thread ]

  51. identicon
    Anonymous Coward, Jan 6th, 2016 @ 9:05pm

    Re: Re: Re: Re: Re: Re: Re: Death and Values

    It's funny that Whatever is suddenly worried about murder when he's completely fine with people getting shot because they happened to look in the direction of a policeman that the policeman thought was funny.

    Apparently, meaningless deaths are only meaningless if the dead are "content creators". Babies on the other hand are completely dispensable as long as authority is being followed and respected.

    reply to this | link to this | view in thread ]

  52. identicon
    cpt kangarooski, Jan 7th, 2016 @ 9:07am

    Re: Re: Re: Re: Re: Re: Death and Values

    But the first year or two may not be profitable, and the real profit may be made on the long tail of the work where every copy sold is nearly full profit.

    That's possible, but it's very unlikely.

    The vast majority of copyrighted works have no copyright-related economic value. Of the small minority of works which do have such value, the vast majority of those works enjoy the vast majority of their value within a very short time after publication (in a broad sense) in a given medium. Works with long-term copyright-related value of any significance are rare as hen's teeth. You may be able to think of a lot of them right off the top of your head, but that's because you've forgotten about or never even knew of all the rest. Creating such a work is like winning the lottery. Happens all the time, but never to you or anyone you know.

    For example, a morning daily newspaper might fetch a dollar a copy at the newsstand during the morning rush hour. Try to sell it again at full price the next day and you'll get nothing but complaints and refusals to buy. In the book world, the reason for hardbacks and paperbacks is to set up two pricing tiers over a longer period of time. (Buyers may perceive hardbacks as better but publishers pay about the same per copy to print them). For a novel, about 90% of the lifetime revenues from the book will be collected within the first 18 months or so from first publication. Movies have perhaps the longest lifetimes, because they keep getting rereleased in different market segments: first run theaters, second run theaters, airlines, pay-per-view, optical disc sales, optical disc rental, premium cable, streaming, basic cable, broadcast tv, etc.

    As for term lengths, the easy answer is to use fixed terms of years. For example a work might get 20 years from first publication worldwide. The author might drop dead the day the term starts or live through the whole thing. But the end date is predictable and everyone can structure their business dealings around it. It worked fine from 1790 through 1977; no reason why we can't bring it back.

    reply to this | link to this | view in thread ]

  53. icon
    The Wanderer (profile), Feb 4th, 2016 @ 5:38am

    Re:

    If we had a lot of individual courts, but all on the same level, then if one court (or group thereof) came to a different set of decisions from the others, there would be no way to resolve that split. You would wind up with "justice" and the law being defined differently depending on where you live. (We have that anyway, due to circuit splits and various other factors, but it would be much worse.)

    If we had only one court, then there would be essentially no way for most people to get a hearing; there are far too many court cases for one court to have the time to hear them all.


    On a structural level (leaving aside state vs. federal sovereignty concerns, among others), the existence of multiple levels of court can be seen as a matter of delegation. The top-level court has final authority as to what the court system judges the law to be, but it delegates authority to lower courts so as to have more people available to hear cases, and those courts in turn delegate authority to courts below them for the same reason.

    That's not the way it's written in the law, but as far as I can see, it's more or less the practical reason for doing it that way.

    reply to this | link to this | view in thread ]


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