| Last week the New York State Supreme Court, New York County, dismissed all claims in a million dollar lawsuit brought by the Graphic Artists Guild (GAG) against the Illustrators' Partnership of America (IPA) and five named individuals. In the lawsuit, GAG asserted claims for defamation and interference with contractual relations, alleging that IPA had interfered with a "business relationship" GAG had entered into that enabled GAG to collect orphaned reprographic royalties derived from the licensing of illustrators' work. GAG alleged that efforts by IPA to create a collecting society to return lost royalties to artists "interfered" with GAG's "business" of appropriating these orphaned fees. In her decision, Judge Debra James ruled that statements made by the Illustrators' Partnership and the other defendants were true; that true statements cannot be defamatory; that illustrators have a "common interest" in orphaned income; and that a "common-interest privilege" may arise from both a right and a duty to convey relevant information, however contentious, to others who share that interest or duty. Regarding a key statement at issue in the lawsuit: that GAG had taken over one and a half million dollars of illustrators' royalties "surreptitiously," the judge wrote: "Inasmuch as the statement [by IPA] was true, [GAG]'s claim cannot rest on allegations of a reckless disregard of whether it was false or not. Truthful and accurate statements do not give rise to defamation liability concerns." (Emphasis added.) And she noted: "The plaintiff Guild has conceded that it received foreign reproductive royalties and that it does not distribute any of the money to artists." Labor Department filings provided as evidence to the court document that between 2000 and 2007, GAG collected at least $1,581,667 in illustrators' reprographic royalties. GAG admitted to having collected similar royalties since 1996. GAG's officers have repeatedly refused to disclose how much money their organization has received to date or how the money has been spent. DUTY AND COMMON INTEREST The judge concluded that this situation justified an assertion of common interest by IPA. This means that "the party communicating [relevant information] has an interest or has a duty" to convey that information truthfully to others "having a corresponding interest or duty": "The duty need not be a legal one, but only a moral or social duty. The parties need only have such a relation to each other as would support a reasonable ground for supposing an innocent motive for imparting the information. Here the plaintiff Guild's factual allegations demonstrate that the defendants' statements were both true, and fall within the parameters of the common-interest privilege." (Emphasis added.) We hope this decision will end the two and a half years of litigation during which GAG pursued its claims against IPA and artists Brad Holland, Cynthia Turner and Ken Dubrowski of IPA, as well as attorney Bruce Lehman, former Commissioner of the US Patent Office and Terry Brown, Director Emeritus of the Society of Illustrators. All defendants were participants in a public presentation sponsored February 21, 2008 by 12 illustrators organizations. The presentation was disrupted by GAG's officers and their attorney. A videotape of the event proves that statements which GAG alleged to be defamatory were made only in response to GAG's intervention, and that until that time, no speakers had mentioned GAG or GAG's longstanding appropriation of illustrators' royalties. Last year, on January 12, 2010, Judge James issued a prior ruling dismissing nearly all of GAG's causes of action. This left only a claim asserted by GAG against Brad Holland. But in a response filed with the court February 4, 2010, attorney Jason Casero, serving as counsel for IPA, pointed out that GAG's remaining claim rested on an allegedly defamatory statement that Holland never made. When confronted with evidence, GAG was forced to admit it had "inadvertently attributed" the statement to Holland. GAG subsequently filed new motions in an effort to revive its claims against IPA and the other defendants. Last summer the judge consolidated GAG's multiple motions and on April 18, 2011, she dismissed all ten causes of action against IPA and all the defendants. REPROGRAPHIC RIGHTS AND ORPHAN WORKS GAG served the lawsuit on IPA October 10, 2008, seven days after Congress failed to pass the Orphan Works Act of 2008. The Illustrators' Partnership and 84 other creators' organizations opposed that legislation. GAG had lobbied for passage of the House version of the Orphan Works bill. Mandatory lobbying disclosures document that GAG spent nearly $200,000 in Orphan Works lobbying fees. In our opinion, the issues behind the lawsuit are greater than whether an organization should be allowed to benefit from the millions of dollars that, collectively, illustrators are losing. We believe the reprographic rights issue is linked to both orphan works legislation and the Google Book Settlement, which Federal Judge Denny Chin dismissed on March 22, 2011. Each of these developments involves an effort by third parties to define artists' work and/or royalties as orphaned property, and to assert the right, in the name of the public interest or class representation, to exploit that work commercially or to appropriate the royalties for use at their sole discretion. So far, judges have affirmed that copyright is an individual, not a collective right, and that unless one explicitly transfers that right, no business or organization can automatically acquire it by invoking an orphaned property premise. Now the challenge for artists will be to see that Congress does not pass legislation to permit what the courts have so far denied. We'll have more to say about this issue in the future. For now we'd like to conclude by thanking our attorney Jason Casero, who provided us with a strong, incisive and heartfelt defense; his law firm, McDermott Will & Emery, which provided us with his services; the Volunteer Lawyers for the Arts of New York and its Director Elena Paul. We'd also like to thank Dan Vasconcellos, Richard Goldberg, and the over 700 artists and illustrators who in 2008 signed a petition asking GAG (unsuccessfully as it turned out) to drop the lawsuit; the support of so many colleagues was a great tonic at a low time. Finally we'd like to thank the representatives of the 12 organizations that comprise the American Society of Illustrators' Partnership (ASIP). ASIP is the coalition organization IPA incorporated in 2007 to act as a collecting society to return royalties to artists. - Brad Holland and Cynthia Turner for the Board of the Illustrators' Partnership This message may be reposted or emailed in its entirety to any interested party. |
Wednesday, April 27, 2011
Graphic Artists Guild Lawsuit Dismissed
Wednesday, March 23, 2011
Court Rejects Google Book Settlement
Yesterday, U.S. Circuit Judge Denny Chin rejected the Book Rights Registry settlement between Google and the US Authors Guild. The $125 million commercial agreement would have rewarded both parties for the largest mass infringement of authors' copyrights in history. Instead, the judge ruled it a business deal "too far."
"A Reversal of Copyright Law" is what we called this agreement in our warning to illustrators September 29, 2009. Like the visual arts "databases" we opposed during the Orphan Works fight, we wrote:
Judge Chin held this to be the case. "A copyright owner's right to exclude others from using his property is fundamental and beyond dispute," he ruled. "[I]t is incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission."
The judge also noted objections to the "Adequacy of Class Representation." In short, this holds that neither Google, nor any organizations claiming to represent authors, nor the university libraries that gave Google "permission" to digitize their holdings, own the copyrights to the works this agreement would have allowed them to exploit.
Therefore, they have no standing to broker deals based on claims that they represent the "class" of authors.
The judge held this to be the case even where organizations asserted the right to "expropriate" "orphaned" royalties belonging to rightsholders. Noting that "After ten years, unclaimed funds may be distributed to literary-based charities," the judge concluded:
In rejecting the settlement, Judge Chin also echoed the US Justice Department's antitrust objections: The deal, he wrote, "would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission..." He suggested the settlement might win approval if it were revised to cover only those who opt into the agreement.
"A Reversal of Copyright Law" is what we called this agreement in our warning to illustrators September 29, 2009. Like the visual arts "databases" we opposed during the Orphan Works fight, we wrote:
"this agreement would allow both Google and a yet-to-be-created Book Rights Registry to commercially profit from an author's work whenever they say they can't locate the author.
"Both schemes would force authors to opt out of commercial operations that infringe their work or to 'protect' their work by opting-in to privately owned databases run by infringers. This Hobson's Choice for authors reverses the principle of copyright law."
Judge Chin held this to be the case. "A copyright owner's right to exclude others from using his property is fundamental and beyond dispute," he ruled. "[I]t is incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission."
The judge also noted objections to the "Adequacy of Class Representation." In short, this holds that neither Google, nor any organizations claiming to represent authors, nor the university libraries that gave Google "permission" to digitize their holdings, own the copyrights to the works this agreement would have allowed them to exploit.
Therefore, they have no standing to broker deals based on claims that they represent the "class" of authors.
The judge held this to be the case even where organizations asserted the right to "expropriate" "orphaned" royalties belonging to rightsholders. Noting that "After ten years, unclaimed funds may be distributed to literary-based charities," the judge concluded:
"[A]t a minimum a fair question exists as to whether this Court or the Registry or the Fiduciary would be expropriating copyright interests belonging to authors who have not voluntarily transferred them. As Professor Nimmer has written: 'By its terms Section 201(e) is not limited to acts by governmental bodies and officials. It includes acts of seizure, etc., by any 'organization' as well.' 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright §10.04 (Rev. Ed. 2010) (footnote omitted)." [Page 31 of the judge's ruling, emphasis added.]
In rejecting the settlement, Judge Chin also echoed the US Justice Department's antitrust objections: The deal, he wrote, "would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission..." He suggested the settlement might win approval if it were revised to cover only those who opt into the agreement.
Saturday, April 10, 2010
Individual Rights Versus the Collective
| For the last several days, we've been responding to queries about the announced "class-action" lawsuit by "visual arts" organizations against Google in the matter of the Google Book Search project. Some perspective: The organizations suing Google are the same visual arts groups that lobbied for passage of the House version of the Orphan Works bill. That bill would have created commercial registries that artists would have to patronize to protect their work from potential orphan status. It would also have created a Dark Archive where infringers could register their right to infringe work. The Google Book Search settlement involves an agreement in which two US organizations would consent to Google's mass infringement of books by the world's authors in return for multimillion dollar cash settlements for their organizations and payouts of $5 to $60 to the infringed authors. In return Google would continue scanning, create yet additional commercial products without the prior consent of rightsholders, control future markets and create a Book Rights Registry of "orphaned" books. The settlement has been condemned by the US Justice Department, the US Copyright Office, several countries and by authors and publishers around the world. One of the chief objections to the settlement is that the plaintiffs do not have standing to trade away the rights of the world's authors as a class action. The US Government has filed two formal statements against the agreement, noting that procedural rules cannot be used to modify rights: "[T]he amended settlement agreement suffers from the same core problem as the original agreement: it is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the court in this litigation". (Emphasis added) We commented on this case last fall. It’s currently under review by the United States District Court for the Southern District of New York. Copyright is an Individual Right Let's reassert the basic principles we've held to since we started the Illustrators' Partnership: · We believe that copyright should be maintained as an individual, not a collective right. · As such, we will not make claims to represent the copyrights of others without their consent; and · We don't recognize the right of any organization to represent our copyrights without our consent. The Google Book Rights Settlement and the Orphan Works Act have highlighted the age-old problem of separating individual rights from the collective. The ability of large internet interests to build empires by aggregating the work of individuals and licensing that work as a "service" to the public has created a tempting business model for opportunists eager to cash in and clothe their self-interest in the language of altruism. The land rush for creators rights as a collective right is on. Copyright is a property right and is the exclusive right of the author. We'll have more to say about this in the future. |
Thursday, March 18, 2010
White House Seeks Artists' Comments to Improve Copyright Protection
New Copyright Czar begins Joint Strategic Plan to Protect Intellectual Property
Victoria Espinel is the first U.S. Intellectual Property Enforcement Coordinator (IPEC), also known as the Copyright Czar. Congress created IPEC by an Act of Congress. Ms. Espinel serves within the Executive Office of the President to coordinate with all the federal agencies that fight the infringement of intellectual property.
Ms. Espinel and her team are specifically tasked with formulating and implementing a Joint Strategic Plan to help protect the ingenuity and creativity of Americans by improving the U.S. Government's protection of the rights of intellectual property owners.
Your input is requested.
The White House is inviting your public input and participation to shape an effective intellectual property enforcement strategy. Please respond with your written submissions regarding the costs to you, your business and the U.S. economy resulting from infringement of your intellectual property rights, both direct and indirect.
This will be a 2-part process.
The first is to gather public recommendations by March 24. IPEC will then gather your input on the formulated plan.
Please be precise.
Include your name, city, state, and what type of artist you are. Explain why copyright is critical to you as a commercial artist, how infringement affects you, and what the U.S. government can do to better protect the rights of American artists. If your submission is about your economic loss due to infringement of your copyrights you must clearly identify the methodology used to calculate your losses or otherwise validate your infringement and enforcement costs.
Your submission will be publicly posted.
For this reason, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information.
Confidential disclosures.
If you have confidential business information that would support your recommendation or that you believe would help the Government formulate an effective enforcement strategy, please let them know by contacting:
Deadline: Submissions must be received by Wednesday, March 24, 2010, at 5 p.m. EST.
Address: All submissions should be sent electronically via intellectualproperty@omb.eop.gov
Additional Background Reading:
White House Blog
Federal Register Notice Request
Victoria Espinel is the first U.S. Intellectual Property Enforcement Coordinator (IPEC), also known as the Copyright Czar. Congress created IPEC by an Act of Congress. Ms. Espinel serves within the Executive Office of the President to coordinate with all the federal agencies that fight the infringement of intellectual property.
Ms. Espinel and her team are specifically tasked with formulating and implementing a Joint Strategic Plan to help protect the ingenuity and creativity of Americans by improving the U.S. Government's protection of the rights of intellectual property owners.
Your input is requested.
The White House is inviting your public input and participation to shape an effective intellectual property enforcement strategy. Please respond with your written submissions regarding the costs to you, your business and the U.S. economy resulting from infringement of your intellectual property rights, both direct and indirect.
This will be a 2-part process.
The first is to gather public recommendations by March 24. IPEC will then gather your input on the formulated plan.
Please be precise.
Include your name, city, state, and what type of artist you are. Explain why copyright is critical to you as a commercial artist, how infringement affects you, and what the U.S. government can do to better protect the rights of American artists. If your submission is about your economic loss due to infringement of your copyrights you must clearly identify the methodology used to calculate your losses or otherwise validate your infringement and enforcement costs.
Your submission will be publicly posted.
For this reason, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information.
Confidential disclosures.
If you have confidential business information that would support your recommendation or that you believe would help the Government formulate an effective enforcement strategy, please let them know by contacting:
Thomas L. Stoll
Office of the Intellectual Property Enforcement Coordinator
(202) 395-1808
Deadline: Submissions must be received by Wednesday, March 24, 2010, at 5 p.m. EST.
Address: All submissions should be sent electronically via intellectualproperty@omb.eop.gov
Additional Background Reading:
White House Blog
Federal Register Notice Request
Thursday, October 22, 2009
Authors Groups Meet in Oslo
OSLO NORWAY Over 60 authors organizations met here this week to discuss strategies for defending authors' rights in the digitized world. Their call to action is reminiscent of the grassroots coalition that came together in the US last year to oppose the Orphan Works bill. In addition to concerns over anti-copyright legislation, authors around the world, including visual artists, face threats from piracy, unauthorized usage, all-rights contracts and, in the US, the loss and/or dissipation of their reprographic royalties.
The Oslo meeting was held concurrent with the anniversary of the founding of the International Federation of Reproduction Rights Organizations (IFRRO). IFRRO was born in Oslo 25 years ago. In the last quarter century, it has grown to 190 members and associate members, of which the Illustrators' Partnership is one.
IFRRO was founded by a small group of visionaries who believed that there was a need for an international organization of Reprographic Rights Organizations (RROs). RROs are collecting societies that monitor and clear rights to authors' creations in collective works such as books, magazines, etc. They grant rights, as mandated by authors, collect fees and return royalties to illustrators, artists, writers and others.
Collecting societies are a new concept to most American illustrators. They exist in countries around the world, but currently, there are none for illustrators in the US. Two years ago, the Illustrators' Partnership brought together 12 prominent visual arts organizations. These groups have incorporated as the American Society of Illustrators Partnership (ASIP).
ASIP, which has been chartered as a collecting society, hopes to begin the long-overdue process of bringing accountability to illustrators' reprographic rights. The 12 founding groups of ASIP also formed the nucleus of the 85 organizations that opposed the Orphan Works bill. In future reports, we'll tell you more about what illustrators can do individually to help us build this formal coalition into a functioning society.
Another Anniversary: The 1999 Santa Fe Conference
The meeting of authors this week in Oslo recalls another anniversary closer to home: the first Illustrators Conference, which opened 10 years ago this week in Santa Fe.
The Santa Fe Conference was a grassroots event founded by 8 artists and reps who believed that illustrators should not accept a slow evolution toward the dissolution of their rights. The conference led to the creation of the Illustrators' Partnership - founded by 3 of the same artists- to act on the initiatives first raised at that pioneering event.
So now, as authors worldwide issue a call for cooperative action, we're pleased to note that the spirit of Santa Fe, invoked by illustrators a decade ago, is still alive and well in the US. It's the spirit that guided artists in Washington last year and with luck, it may yet swell and aid in the preservation of copyright law, which is the legal means by which the distinctive expressions of individuals are themselves preserved.
The Oslo meeting was held concurrent with the anniversary of the founding of the International Federation of Reproduction Rights Organizations (IFRRO). IFRRO was born in Oslo 25 years ago. In the last quarter century, it has grown to 190 members and associate members, of which the Illustrators' Partnership is one.
IFRRO was founded by a small group of visionaries who believed that there was a need for an international organization of Reprographic Rights Organizations (RROs). RROs are collecting societies that monitor and clear rights to authors' creations in collective works such as books, magazines, etc. They grant rights, as mandated by authors, collect fees and return royalties to illustrators, artists, writers and others.
Collecting societies are a new concept to most American illustrators. They exist in countries around the world, but currently, there are none for illustrators in the US. Two years ago, the Illustrators' Partnership brought together 12 prominent visual arts organizations. These groups have incorporated as the American Society of Illustrators Partnership (ASIP).
ASIP, which has been chartered as a collecting society, hopes to begin the long-overdue process of bringing accountability to illustrators' reprographic rights. The 12 founding groups of ASIP also formed the nucleus of the 85 organizations that opposed the Orphan Works bill. In future reports, we'll tell you more about what illustrators can do individually to help us build this formal coalition into a functioning society.
Another Anniversary: The 1999 Santa Fe Conference
The meeting of authors this week in Oslo recalls another anniversary closer to home: the first Illustrators Conference, which opened 10 years ago this week in Santa Fe.
The Santa Fe Conference was a grassroots event founded by 8 artists and reps who believed that illustrators should not accept a slow evolution toward the dissolution of their rights. The conference led to the creation of the Illustrators' Partnership - founded by 3 of the same artists- to act on the initiatives first raised at that pioneering event.
So now, as authors worldwide issue a call for cooperative action, we're pleased to note that the spirit of Santa Fe, invoked by illustrators a decade ago, is still alive and well in the US. It's the spirit that guided artists in Washington last year and with luck, it may yet swell and aid in the preservation of copyright law, which is the legal means by which the distinctive expressions of individuals are themselves preserved.
Friday, October 2, 2009
Orphan Works and the Google Settlement Part 3: Compelling Arguments
Compelling Arguments
On September 10, 2009, Marybeth Peters, Register of the US Copyright Office, testified before Congress in opposition to the Google Book Search Settlement. Her arguments on behalf of creators rights are compelling and we support them. However, we note with some irony that they are nearly identical to the arguments we made in opposing the Orphan Works bill last year. We don't know what conclusions to draw from this fact, but we think it's fair to draw attention to it.
We've picked several examples below and matched them with quotes from our own writings and testimony. In every case, the emphasis is ours.
Marybeth Peters on the Google Book Settlement: "The [Google] settlement is not merely a compromise of existing claims, or an agreement to compensate past copying and snippet display. Rather, it could affect the exclusive rights of millions of copyright owners, in the United States and abroad, with respect to their abilities to control new products and new markets, for years and years to come."
IPA on the Orphan Works Bill: The bill's sponsors say it's merely a small adjustment to copyright law. In fact...its provisions have been drafted so broadly it will orphan the work of working artists. Its consequences will be far reaching, long lasting, perhaps irreversible and will strike at the heart of art itself."
Marybeth Peters on the Google Book Settlement: "[The Book Rights Registry] is likely to have the unfortunate effect of creating a false database of orphan works, because in practice any work that is not claimed will be deemed an orphan."
IPA on the Orphan Works Bill: "As clients come to rely on these [visual arts] registries as one-stop shopping centers for rights clearance, any works not found in the registries could be infringed as orphans."
Marybeth Peters on the Google Book Settlement: "Compulsory licenses... are scrutinized very strictly because by their nature they impinge upon the exclusive rights of copyright holders...By its nature, a compulsory license "is a limited exception to the copyright holder's exclusive right . . . As such, it must be construed narrowly."
IPA on the Orphan Works Bill: "[The Orphan Works bill] radically abridges the fundamental principal of exclusive rights granted to creators under the copyright law, and creates a sweeping compulsory license permitting large scale unauthorized use of not only older works, the provenance of which may be difficult to determine, but also of the valuable contemporary works that are the economic life blood of those in our profession."
Marybeth Peters on the Google Book Settlement: "Compulsory licenses are generally adopted by Congress only reluctantly, in the face of a marketplace failure."
IPA on the Orphan Works Bill: "The Copyright Office only received about 215 relevant letters to their Orphan Works Study. From this they deduced a claim of widespread market failure in commercial markets..." " But the Copyright Office studied the specific subject of orphaned work. They did not inquire about the workings of commercial markets and there is no evidence in their report that business clients are unable to find the living authors they wish to work with. No evidence whatsoever."
Marybeth Peters on the Google Book Settlement: "In summary, the out-of-print default rules would allow Google to operate under reverse principles of copyright law..."
IPA on the Orphan Works Bill: "[The Orphan Works bill] creates the public's right to use private property as a default position, available to anyone whenever the property owner fails to make himself sufficiently available." "[I]ts logic reverses copyright law."
Marybeth Peters on the Google Book Settlement: "In essence, the proposed settlement would give Google a license to infringe first and ask questions later..."
IPA on the Orphan Works Bill: "Since orphan works transactions would occur only after infringement, the rights holder would have no leverage to bargain for more than the infringer is willing or able to pay."
Marybeth Peters on the Google Book Settlement: "[C]opyright law has always left it to the copyright owner to determine whether and how an out-of-print work should be exploited."
IPA on the Orphan Works Bill: "Under copyright law, no author can be compelled to publish his or her work. So by what right of eminent domain can Congress give strangers the right to publish our work without our knowledge, consent or payment?"
Marybeth Peters on the Google Book Settlement: "The broad scope of the out-of-print provisions and the large class of copyright owners they would affect will dramatically impinge on the exclusive rights of authors, publishers, their heirs and successors."
IPA on the Orphan Works Bill: "The fundamental problem with the Orphan Works Act is that it's been drafted so broadly its use cannot be confined to real orphaned work situations." "To redefine an orphaned work as "a work by an unlocatable author" is to radically re-define the ownership of private property...Since everybody can be hard for somebody to find, this voids a rights holder's exclusive right to his or her own property."
Marybeth Peters on the Google Book Settlement: "Some foreign governments have raised questions about the compatibility of the proposed settlement with Article 5 of the Berne convention, which requires that copyright be made available to foreign authors on a no less favorable basis than to domestic authors, and that the "enjoyment and exercise of these rights shall not be subject to any formality."
IPA on the Orphan Works Bill: "[P]utting pressure on creators to subsidize the creation of privately-owned registries violates the intent of international copyright law, specifically Article 5(2) of the Berne Convention: "The enjoyment and the exercise of these rights shall not be subject to any formality."
Marybeth Peters on the Google Book Settlement: "The ability of copyright owners and technology companies to share advertising revenue and other potential income streams is a worthy and symbiotic business goal that makes a lot of sense when the terms are mutually determined. And the increased abilities of libraries to offer on-line access to books and other copyrighted works is a development that is both necessary and possible in the digital age. However, none of these possibilities should require Google to have immediate, unfettered, and risk-free access to the copyrighted works of other people. They are not a reason to throw out fundamental copyright principles; they are a pretext to do so."
IPA on the Orphan Works Bill: "The internet has created a culture of appropriation; and immediate global access to artistic works has facilitated piracy, unintentional infringement and plagiary. But instant and unrestricted access to work should not be construed as a necessity just because technology has made it a possibility. That an artist's work now can be instantly transmitted around the world without the artist's permission or control does not justify a user's 'right' to take the work."
Marybeth Peters on the Google Book Settlement: "[T]he settlement would inappropriately interfere with the on-going efforts of Congress to enact orphan works legislation in a manner that takes into account the concerns of all stakeholders as well as the United States' international obligations.
IPA on the Orphan Works Bill: "This bill has been drafted behind closed doors, without a needs-assessment study, an economic impact analysis, or an evaluation of how the public would be affected by this transfer of private property from individuals to giant commercial databases...For artists, the most troubling part has been our near-total exclusion from the legislative process.
"On July 11th [2008], on behalf of all those who oppose this bill, [we] submitted Amendments to the Subcommittee on Courts, the Internet and Intellectual Property. Those Amendments would make this bill a true orphan works bill. The Amendments have never been considered...This is no way to re-write U.S. copyright law."
Q.E.D.
The Register's full testimony from September 10, 2009 can be found here.
On September 10, 2009, Marybeth Peters, Register of the US Copyright Office, testified before Congress in opposition to the Google Book Search Settlement. Her arguments on behalf of creators rights are compelling and we support them. However, we note with some irony that they are nearly identical to the arguments we made in opposing the Orphan Works bill last year. We don't know what conclusions to draw from this fact, but we think it's fair to draw attention to it.
We've picked several examples below and matched them with quotes from our own writings and testimony. In every case, the emphasis is ours.
Marybeth Peters on the Google Book Settlement: "The [Google] settlement is not merely a compromise of existing claims, or an agreement to compensate past copying and snippet display. Rather, it could affect the exclusive rights of millions of copyright owners, in the United States and abroad, with respect to their abilities to control new products and new markets, for years and years to come."
IPA on the Orphan Works Bill: The bill's sponsors say it's merely a small adjustment to copyright law. In fact...its provisions have been drafted so broadly it will orphan the work of working artists. Its consequences will be far reaching, long lasting, perhaps irreversible and will strike at the heart of art itself."
* * * * *
Marybeth Peters on the Google Book Settlement: "[The Book Rights Registry] is likely to have the unfortunate effect of creating a false database of orphan works, because in practice any work that is not claimed will be deemed an orphan."
IPA on the Orphan Works Bill: "As clients come to rely on these [visual arts] registries as one-stop shopping centers for rights clearance, any works not found in the registries could be infringed as orphans."
* * * * *
Marybeth Peters on the Google Book Settlement: "Compulsory licenses... are scrutinized very strictly because by their nature they impinge upon the exclusive rights of copyright holders...By its nature, a compulsory license "is a limited exception to the copyright holder's exclusive right . . . As such, it must be construed narrowly."
IPA on the Orphan Works Bill: "[The Orphan Works bill] radically abridges the fundamental principal of exclusive rights granted to creators under the copyright law, and creates a sweeping compulsory license permitting large scale unauthorized use of not only older works, the provenance of which may be difficult to determine, but also of the valuable contemporary works that are the economic life blood of those in our profession."
* * * * *
Marybeth Peters on the Google Book Settlement: "Compulsory licenses are generally adopted by Congress only reluctantly, in the face of a marketplace failure."
IPA on the Orphan Works Bill: "The Copyright Office only received about 215 relevant letters to their Orphan Works Study. From this they deduced a claim of widespread market failure in commercial markets..." " But the Copyright Office studied the specific subject of orphaned work. They did not inquire about the workings of commercial markets and there is no evidence in their report that business clients are unable to find the living authors they wish to work with. No evidence whatsoever."
* * * * *
Marybeth Peters on the Google Book Settlement: "In summary, the out-of-print default rules would allow Google to operate under reverse principles of copyright law..."
IPA on the Orphan Works Bill: "[The Orphan Works bill] creates the public's right to use private property as a default position, available to anyone whenever the property owner fails to make himself sufficiently available." "[I]ts logic reverses copyright law."
* * * * *
Marybeth Peters on the Google Book Settlement: "In essence, the proposed settlement would give Google a license to infringe first and ask questions later..."
IPA on the Orphan Works Bill: "Since orphan works transactions would occur only after infringement, the rights holder would have no leverage to bargain for more than the infringer is willing or able to pay."
* * * * *
Marybeth Peters on the Google Book Settlement: "[C]opyright law has always left it to the copyright owner to determine whether and how an out-of-print work should be exploited."
IPA on the Orphan Works Bill: "Under copyright law, no author can be compelled to publish his or her work. So by what right of eminent domain can Congress give strangers the right to publish our work without our knowledge, consent or payment?"
* * * * *
Marybeth Peters on the Google Book Settlement: "The broad scope of the out-of-print provisions and the large class of copyright owners they would affect will dramatically impinge on the exclusive rights of authors, publishers, their heirs and successors."
IPA on the Orphan Works Bill: "The fundamental problem with the Orphan Works Act is that it's been drafted so broadly its use cannot be confined to real orphaned work situations." "To redefine an orphaned work as "a work by an unlocatable author" is to radically re-define the ownership of private property...Since everybody can be hard for somebody to find, this voids a rights holder's exclusive right to his or her own property."
* * * * *
Marybeth Peters on the Google Book Settlement: "Some foreign governments have raised questions about the compatibility of the proposed settlement with Article 5 of the Berne convention, which requires that copyright be made available to foreign authors on a no less favorable basis than to domestic authors, and that the "enjoyment and exercise of these rights shall not be subject to any formality."
IPA on the Orphan Works Bill: "[P]utting pressure on creators to subsidize the creation of privately-owned registries violates the intent of international copyright law, specifically Article 5(2) of the Berne Convention: "The enjoyment and the exercise of these rights shall not be subject to any formality."
* * * * *
Marybeth Peters on the Google Book Settlement: "The ability of copyright owners and technology companies to share advertising revenue and other potential income streams is a worthy and symbiotic business goal that makes a lot of sense when the terms are mutually determined. And the increased abilities of libraries to offer on-line access to books and other copyrighted works is a development that is both necessary and possible in the digital age. However, none of these possibilities should require Google to have immediate, unfettered, and risk-free access to the copyrighted works of other people. They are not a reason to throw out fundamental copyright principles; they are a pretext to do so."
IPA on the Orphan Works Bill: "The internet has created a culture of appropriation; and immediate global access to artistic works has facilitated piracy, unintentional infringement and plagiary. But instant and unrestricted access to work should not be construed as a necessity just because technology has made it a possibility. That an artist's work now can be instantly transmitted around the world without the artist's permission or control does not justify a user's 'right' to take the work."
* * * * *
Marybeth Peters on the Google Book Settlement: "[T]he settlement would inappropriately interfere with the on-going efforts of Congress to enact orphan works legislation in a manner that takes into account the concerns of all stakeholders as well as the United States' international obligations.
IPA on the Orphan Works Bill: "This bill has been drafted behind closed doors, without a needs-assessment study, an economic impact analysis, or an evaluation of how the public would be affected by this transfer of private property from individuals to giant commercial databases...For artists, the most troubling part has been our near-total exclusion from the legislative process.
"On July 11th [2008], on behalf of all those who oppose this bill, [we] submitted Amendments to the Subcommittee on Courts, the Internet and Intellectual Property. Those Amendments would make this bill a true orphan works bill. The Amendments have never been considered...This is no way to re-write U.S. copyright law."
Q.E.D.
The Register's full testimony from September 10, 2009 can be found here.
Wednesday, September 30, 2009
Orphan Works and the Google Book Settlement / Part II
A Reversal of Copyright Law
Last Friday we summarized the basic details of the Google Book Search Settlement. Like the visual arts "databases" we opposed last year, this agreement would allow both Google and a yet-to-be-created Book Rights Registry to commercially profit from an author's work whenever they say they can't locate the author.
Both schemes would force authors to opt out of commercial operations that infringe their work - or to "protect" their work by opting-in to privately owned databases run by infringers. This Hobson's Choice for authors reverses the principle of copyright law.
The by-product of the Google settlement (again like the Orphan Works bill) would be to establish public access to private property as the default position in copyright law. In other words, it presumes:
a.) that the public is entitled to use your work as a primary right,
b.) that it's your legal obligation to make your work available, and
c.) that if you fail to do so, you forfeit your exclusive right to control access to your work.
If you're an author and you wish to keep the book you write from becoming a potential orphan, you'd therefore have to register it with the Book Rights Registry run by the parties that settled with Google (and who will receive an award of $30 million for cutting themselves in).
Advocates of the deal try to justify it by saying it will make more books available to more people than at any other time in history - a claim that's no doubt true - but therefore they say, as Andrew Albanese writes in Publishers Weekly, "the massive public good of the deal far outweigh[s] the individual greivances [sic] of rightsholders."
Yet it's in this very argument that the danger lies.
Once the Copy Left has established a legal precedent that the property rights of authors can be subordinated to the assertion of public interest, they can build on that principle to enact further statute and case laws to benefit commercial interests. To do this, they'll have to chip away further at the inherent property rights of individuals.
Orphan Works: "Half a Loaf"
An example of the agenda that underlies both the Google book search settlement and the Orphan Works bill came in May, 2008, at a time when the Orphan Works bill looked to be a shoo-in by early summer. Anticipating a quick mopping up operation, the bill's advocates were high-fiving one another. But as James V. DeLong of the Convergence Law Institute reminded them, there was still much work ahead.
Calling the Orphan Works bill just "half a loaf," he hinted at what it would take to permit commercial interests to take the whole loaf:
Both the Google Book settlement and the Orphan Works bill have their intellectual rationale in the war on authors that began decades ago in the obscure theories of Postmodern literary critics. Their fundamental premise is that all creativity is communal and that authors are only the agents through which the community creates. This has led a handful of activist legal scholars to demand changes in the law requiring artists, writers and others to affirm and reaffirm the rights to use their own work by, in effect, licensing it from the public "commons."
This argument, Marxist in its origins, has found its unlikely champion in those large commercial Internet interests that hope to build Information Age empires supplying businesses and the public with creative "content." By defining millions of works as orphans on the premise that some might be, both the Google Book settlement and the Orphan Works bill would allow these opportunists to profit by harvesting the work of others, providing their databases with content they could never afford to create themselves nor license from authors.
Next: Orphan Works and the Google Book Settlement /Part III: Compelling Arguments
The Register of the US Copyright Office has condemned the Google settlement in terms nearly identical to our condemnation last year of the Orphan Works bill. In Part III, we'll examine those similarities to see the patterns that are emerging from this insidious effort to change copyright law.
Last Friday we summarized the basic details of the Google Book Search Settlement. Like the visual arts "databases" we opposed last year, this agreement would allow both Google and a yet-to-be-created Book Rights Registry to commercially profit from an author's work whenever they say they can't locate the author.
Both schemes would force authors to opt out of commercial operations that infringe their work - or to "protect" their work by opting-in to privately owned databases run by infringers. This Hobson's Choice for authors reverses the principle of copyright law.
The by-product of the Google settlement (again like the Orphan Works bill) would be to establish public access to private property as the default position in copyright law. In other words, it presumes:
a.) that the public is entitled to use your work as a primary right,
b.) that it's your legal obligation to make your work available, and
c.) that if you fail to do so, you forfeit your exclusive right to control access to your work.
If you're an author and you wish to keep the book you write from becoming a potential orphan, you'd therefore have to register it with the Book Rights Registry run by the parties that settled with Google (and who will receive an award of $30 million for cutting themselves in).
Advocates of the deal try to justify it by saying it will make more books available to more people than at any other time in history - a claim that's no doubt true - but therefore they say, as Andrew Albanese writes in Publishers Weekly, "the massive public good of the deal far outweigh[s] the individual greivances [sic] of rightsholders."
Yet it's in this very argument that the danger lies.
Once the Copy Left has established a legal precedent that the property rights of authors can be subordinated to the assertion of public interest, they can build on that principle to enact further statute and case laws to benefit commercial interests. To do this, they'll have to chip away further at the inherent property rights of individuals.
Orphan Works: "Half a Loaf"
An example of the agenda that underlies both the Google book search settlement and the Orphan Works bill came in May, 2008, at a time when the Orphan Works bill looked to be a shoo-in by early summer. Anticipating a quick mopping up operation, the bill's advocates were high-fiving one another. But as James V. DeLong of the Convergence Law Institute reminded them, there was still much work ahead.
Calling the Orphan Works bill just "half a loaf," he hinted at what it would take to permit commercial interests to take the whole loaf:
"These possibly-orphan, sort-of-orphan, and gray literature works simply cannot be made available if the digitizers are required to make one-by-one judgments and seek permission before copying. If they are to be retrieved in useful form, then sooner or later Google, Amazon, Microsoft, and some others must be permitted to digitize on a massive scale."Of course he acknowledged that the new reverse copyright law should not deprive intellectual property owners of their "legitimate rights." But he reaffirmed the Copy Left's fundamental premise that intellectual property owners should not be entitled to legitimate rights except in situations where they've registered their works:
"At some point, some kind of grand grandfathering proceeding will probably be required, a window in which holders of existing rights must reaffirm them or lose them." (Italics added)Again, this is the same premise we see at work in the Google book settlement. As Lynn Chu, a principal at Writers Representatives LLC, wrote in the Wall Street Journal, March 28, 2009:
"Under the settlement, every rights-owner in America is supposed to hand over all their private contract data, on every edition of every work they ever wrote -- and every excerpt permission ever granted to others -- at the peril of losing the money Google will be making on their backs. This is a massive burden on everyone in the book industry, making us all, in effect, Google's data-entry slaves. Indeed, in most cases such information about every permission ever granted is unlocatable. It opens a Pandora's box of disputes and mistaken claims about who actually owns what." (Italics added)This is identical to our warning last year about the Orphan Works bill:
"[The Orphan Works bill] would force artists either to entrust their entire life's work to privately owned commercial databases or see it exposed to widespread infringement. It would let giant image banks access our commercial inventory and metadata - and enter our commercial markets as clearinghouses to compete with us for our own clients. I can think of no other field where small business owners can be pressured to supply potential competitors with their content, business data and client contact information." - Brad Holland, Small Business Administration Roundtable, August 8, 2008The War on Authors
Both the Google Book settlement and the Orphan Works bill have their intellectual rationale in the war on authors that began decades ago in the obscure theories of Postmodern literary critics. Their fundamental premise is that all creativity is communal and that authors are only the agents through which the community creates. This has led a handful of activist legal scholars to demand changes in the law requiring artists, writers and others to affirm and reaffirm the rights to use their own work by, in effect, licensing it from the public "commons."
This argument, Marxist in its origins, has found its unlikely champion in those large commercial Internet interests that hope to build Information Age empires supplying businesses and the public with creative "content." By defining millions of works as orphans on the premise that some might be, both the Google Book settlement and the Orphan Works bill would allow these opportunists to profit by harvesting the work of others, providing their databases with content they could never afford to create themselves nor license from authors.
Next: Orphan Works and the Google Book Settlement /Part III: Compelling Arguments
The Register of the US Copyright Office has condemned the Google settlement in terms nearly identical to our condemnation last year of the Orphan Works bill. In Part III, we'll examine those similarities to see the patterns that are emerging from this insidious effort to change copyright law.
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