Hot Issues in Copyright
Ebooks, orphans,
first sale …

Graduate School of Library and Information Science
Dominican Univer...
Legal Disclaimer
• Legal information
• Not legal advice!
Agenda
Ebooks
Lending content
Litigation:
Google Books, Hathi Trust

Other issues
E-reserves
Streaming videos UCLA, YouTub...
Lending Content
Copyright v. Licenses
Specific Copyright
Exception:
FIRST SALE
Lending Content
Copyright v. Licenses
Specific Copyright
Exception:
FIRST SALE
PART OF
PUBLIC LAW
Lending Content
Copyright v. Licenses
PRIVATE CONTRACT
Specific Copyright
overrides copyright
Exception: law
(almost alway...
What is Copyright FIRST SALE?
Loan books
Sell used books

Copyright Law
17 U.S.C. Sect. 109
Digital First Sale?
Outdated law.
Rights triggered when
copy is made, even
if original is deleted.*

*may make INCIDENTAL ...
Digital First Sale?
Outdated law.
Rights triggered when
copy is made, even
if original is deleted.*

*may make INCIDENTAL ...
Digital First Sale?
Outdated law.
Rights triggered when
copy is made, even
if original is deleted.*

*may make INCIDENTAL ...
Don’t take for granted!
First Sale Doctrine in United States
• Public Lending Right

Not true everywhere!
Public Lending R...
First Sale: Sell Used e-files?
A right to sell used digital
music?
https://www.redigi.com/
March 2013 Partial summary
judg...
First Sale: Supreme Court
2013
Are copies printed abroad subject to First Sale?
Yes.
Library Copyright Alliance cited in o...
First Sale: Supreme Court
2013
Are copies printed abroad subject to First Sale?
Yes.

PTO : :impacts right to
PTO impacts ...
LENDING CONTENT
Copyright Safe

OK:
• Public Domain
• Creative Commons
• Permission
(e.g. local author)
New rights models
unglue.it – creative commons
Rights holders set
dollar mount, readers
pledge $ to “unglue”
Success =
Cre...
Licenses
Licenses
understand
understand
default copyright
default copyright
rights before signing
rights before signing
Douglas County Libraries and Califa:
Statement of Common Understanding
Uses copyright
law, not license
Describes how
copyr...
LITIGATION: Hathi Trust
Book Scans as FAIR USE
OK for
preservation
searching
text mining
print disabled users
Now on appea...
LITIGATION: Google Books
Scanned over 20 million books
with library partners
Search “snippets”
2005 Authors and publishers...
http://www.librarycopyrightalliance.org/bm~doc/googlebookslitigation-familytree.pdf
Google Books
For tes
dandex.org
upublici
p
the

Authors Guild v. Google
Institute for Information Law and Policy at New Yo...
Opportunity for Public Comment
Deadline: November 13
•

Benefits of First Sale? Experience in Digital Market?

•

Possible...
Agenda
Other issues
E-reserves
Streaming videos UCLA, YouTube
Changing formats
E-Reserves
COURT (May 2012):
26 not registered or de minimus
44 FAIR USE
5 Infringing
Look to amount and market harm
Rejec...
Streaming Videos:
UCLA Case
UCLA converted DVDs to streaming
for in course management system
November 2012: Court found it...
May We Show YouTube Video?
Copyright and YouTube Terms of Service
Copyright Law – Specific exception
OR MAKE FAIR USE CASE...
YouTube Terms

http://www.youtube.com/t/contentid
YouTube Terms of Service
4. General Use of the Service—Permissions and Restrictions
YouTube hereby grants you permission t...
International Developments

http://www.librarycopyrightalliance.org/bm~doc/user-guide-marrakesh-treaty1013final.pdf
International Library Copyright
Treaty Discussions

http://www.wipo.int/meetings/en/details.jsp?meeting_id=29944
Agenda
Ebooks
Lending content
Litigation:
Google Books, Hathi Trust

Other issues
E-reserves
Streaming videos UCLA, YouTub...
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Hot issues in copyright

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E-books, orphan works, and e-reserves have all been central issues in litigation. Get an update on cases and other pending copyright developments that affect libraries, users and access to information.

Presenter Bio: Mary Minow is currently the holder of the Follett Chair in Library and Information Science at Dominican University. She is also a member of the National Museum and Library Services Board. She manages the Stanford Copyright and Fair Use website and founded the Library Law blog. In addition, she serves on the board of the Electronic Privacy Information Center, as well as the board of the Freedom to Read Foundation.

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  • http://www.fs.usda.gov/Internet/FSE_MEDIA/stelprdb5172915.jpg
  • http://www.ca.sandia.gov/casite/images/handshake.gif
  • http://blog.law.cornell.edu/blog/2012/06/13/lii-releases-first-ebook-for-kindle-and-nook-u-s-code-title-17/
  • http://blog.law.cornell.edu/blog/2012/06/13/lii-releases-first-ebook-for-kindle-and-nook-u-s-code-title-17/
  • http://blog.law.cornell.edu/blog/2012/06/13/lii-releases-first-ebook-for-kindle-and-nook-u-s-code-title-17/
    http://www.csc.noaa.gov/idiq/
  • http://www.nlm.nih.gov/share/image/circ_desk.jpg
  • The two main methods of ◊calculation are as follows: (a) payment on the basis of how often an author’s works are lent out; and (b) payment per copy of an author’s work held in libraries
  • The two main methods of ◊calculation are as follows: (a) payment on the basis of how often an author’s works are lent out; and (b) payment per copy of an author’s work held in libraries
  • The two main methods of ◊calculation are as follows: (a) payment on the basis of how often an author’s works are lent out; and (b) payment per copy of an author’s work held in libraries
  • The two main methods of ◊calculation are as follows: (a) payment on the basis of how often an author’s works are lent out; and (b) payment per copy of an author’s work held in libraries
  • not new, persistent copies, but incidental copying to a lawful use.
  • In the context of cross border transactions, the relationship between the fi
    rst sale doctrine and the importation right of U.S. law (defined in the Copyright Act as part of
    the distribution right) has been the subject of litigation Differing interpretations in
    the courts were recently resolved by the Supreme Court in a holding
    that goods lawfully made and purchased with the authorization of the copyright owner anywhere
    in the world can be resold within the United States
    .
    PTO Green Paper: While the case did not directly raise the issue of online application of the first sale doctrine, the Court’s decision could have an impact on the ability of right holders to offer their works at different prices and different times in different countries , 198 and may result in legislative reexamination of the doctrine as a whole
  • In the context of cross border transactions, the relationship between the fi
    rst sale doctrine and the importation right of U.S. law (defined in the Copyright Act as part of
    the distribution right) has been the subject of litigation Differing interpretations in
    the courts were recently resolved by the Supreme Court in a holding
    that goods lawfully made and purchased with the authorization of the copyright owner anywhere
    in the world can be resold within the United States
    .
    PTO Green Paper: While the case did not directly raise the issue of online application of the first sale doctrine, the Court’s decision could have an impact on the ability of right holders to offer their works at different prices and different times in different countries , 198 and may result in legislative reexamination of the doctrine as a whole
  • http://photos.state.gov/galleries/singapore/6771/eDevices/
     
  • What are the benefits of the first sale doctrine? And to what extent are those benefits currently being experienced in the digital marketplace?
    To what extent does the online market today provide opportunities to engage in actions made possible by the first sale doctrine in the analog world, such as sharing favorite books with friends, or enabling the availability of less-than-full-price versions to students?
    If the market does not currently provide such opportunities, will it do so in the near future? If not, are there alternative means to incorporate the benefits of the first sale doctrine in the digital marketplace? How would adoption of those alternatives impact the markets for copyrighted works?
    Are there any changes in technological capabilities since the Copyright Office’s 2001 conclusions that should be considered? If so, what are they? For example, could some
    9 Id. at 36 10 Id.
    8
    technologies ensure that the original copy of a work no longer exists after it has been
    redistributed?
    To what extent are there particular market segments or categories of users that may
    warrant particularized legal treatment?
    How will the Supreme Court’s decision in Kirtsaeng v. John Wiley & Sons, Inc., 133
    S.Ct. 1351 (2013), impact the ability of right holders to offer their works at different prices and different times in different online markets? How will any such changes impact the availability of and access to creative content in the United States and elsewhere
    http://notice.usa.gov
  • Hot issues in copyright

    1. 1. Hot Issues in Copyright Ebooks, orphans, first sale … Graduate School of Library and Information Science Dominican University October 30, 2013 Presented by Mary Minow, J.D., A.M.L.S. LibraryLaw.com
    2. 2. Legal Disclaimer • Legal information • Not legal advice!
    3. 3. Agenda Ebooks Lending content Litigation: Google Books, Hathi Trust Other issues E-reserves Streaming videos UCLA, YouTube Changing formats International developments
    4. 4. Lending Content Copyright v. Licenses Specific Copyright Exception: FIRST SALE
    5. 5. Lending Content Copyright v. Licenses Specific Copyright Exception: FIRST SALE PART OF PUBLIC LAW
    6. 6. Lending Content Copyright v. Licenses PRIVATE CONTRACT Specific Copyright overrides copyright Exception: law (almost always) FIRST SALE
    7. 7. What is Copyright FIRST SALE? Loan books Sell used books Copyright Law 17 U.S.C. Sect. 109
    8. 8. Digital First Sale? Outdated law. Rights triggered when copy is made, even if original is deleted.* *may make INCIDENTAL OR FAIR USE argument, depending on circumstances
    9. 9. Digital First Sale? Outdated law. Rights triggered when copy is made, even if original is deleted.* *may make INCIDENTAL OR FAIR USE argument, depending on circumstances
    10. 10. Digital First Sale? Outdated law. Rights triggered when copy is made, even if original is deleted.* *may make INCIDENTAL OR FAIR USE argument, depending on circumstances
    11. 11. Don’t take for granted! First Sale Doctrine in United States • Public Lending Right Not true everywhere! Public Lending Right = authors paid when books are loaned Euros © Will Spaetzel 2004. Some Rights Reserved. Attribution-NonCommercial-ShareAlike 2.0 Generic www.flickr.com/photos/redune/5073664/
    12. 12. First Sale: Sell Used e-files? A right to sell used digital music? https://www.redigi.com/ March 2013 Partial summary judgment for plaintiff new copy made, even if old was deleted Redigi 2.0 direct from iTunes to locker https://www.redigi.com/ Neew! N w! 2014 Capitol Records, LLC v. ReDigi Inc., No. 12 Civ. 95 (RJS), 2013 WL 1286134 (S.D.N.Y. Mar. 30, 2013) RSS feed at http://dockets.justia.com/docket/newyork/nysdce/1:2012cv00095/390216/
    13. 13. First Sale: Supreme Court 2013 Are copies printed abroad subject to First Sale? Yes. Library Copyright Alliance cited in opinion. Kirtsaeng v. John Wiley& Sons, Inc., 133 S. Ct. 1351 (2013); See also First Sale Fast Facts for Libraries / Library Copyright Alliance http://www.librarycopyrightalliance.org/bm~doc/lca-tpfirstsale18jan13.pdf
    14. 14. First Sale: Supreme Court 2013 Are copies printed abroad subject to First Sale? Yes. PTO : :impacts right to PTO impacts right to sell abroad sell abroad Reexamine legislatively Reexamine legislatively Library Copyright Alliance cited in opinion. Kirtsaeng v. John Wiley& Sons, Inc., 133 S. Ct. 1351 (2013); See also First Sale Fast Facts for Libraries / Library Copyright Alliance http://www.librarycopyrightalliance.org/bm~doc/lca-tpfirstsale18jan13.pdf
    15. 15. LENDING CONTENT Copyright Safe OK: • Public Domain • Creative Commons • Permission (e.g. local author)
    16. 16. New rights models unglue.it – creative commons Rights holders set dollar mount, readers pledge $ to “unglue” Success = Creative Commons License
    17. 17. Licenses
    18. 18. Licenses understand understand default copyright default copyright rights before signing rights before signing
    19. 19. Douglas County Libraries and Califa: Statement of Common Understanding Uses copyright law, not license Describes how copyright law applies One userOne loan
    20. 20. LITIGATION: Hathi Trust Book Scans as FAIR USE OK for preservation searching text mining print disabled users Now on appeal. Orphan works program suspended, not currently at issue Authors Guild v. HathiTrust
    21. 21. LITIGATION: Google Books Scanned over 20 million books with library partners Search “snippets” 2005 Authors and publishers sued Google Proposed settlement: BOOKS RIGHTS REGISTRY (sell orphans) Court REJECTED Current status: publishers settled authors have not Not at issue: 2 million public domain books 2 million previews with publisher agreements Authors Guild v. Google
    22. 22. http://www.librarycopyrightalliance.org/bm~doc/googlebookslitigation-familytree.pdf
    23. 23. Google Books For tes dandex.org upublici p the Authors Guild v. Google Institute for Information Law and Policy at New York Law School.
    24. 24. Opportunity for Public Comment Deadline: November 13 • Benefits of First Sale? Experience in Digital Market? • Possible to share books with friends? Second hand texts for students? • Alternatives to incorporate into digital market? • Technology updates since Copyright Office First Sale study in 2001? • Markets or users that warrant particularized treatment? Department of Commerce’s Internet Policy Task Force Public Meeting Dec. 12th Ronald Reagan Building, Washington, DC http://www.ntia.doc.gov/federal-registernotice/2013/request-comments-departmentcommerce-green-paper-copyright-policy-creat Federal Register Docket 130927852-3852-01
    25. 25. Agenda Other issues E-reserves Streaming videos UCLA, YouTube Changing formats
    26. 26. E-Reserves COURT (May 2012): 26 not registered or de minimus 44 FAIR USE 5 Infringing Look to amount and market harm Rejected CLASSROOM GUIDELINES Reasonable limits: One chapter of book with 10+ chapters 10 % of book less than 10 chapters See ARL Issue Brief by Brandon C. Butler http://www.arl.org/bm7Edoc/gsu_is suebrief_15may12.pdf Appeal arguments week of Nov. 18, 2013 in Atlanta Cambridge University Press v. Becker
    27. 27. Streaming Videos: UCLA Case UCLA converted DVDs to streaming for in course management system November 2012: Court found it could be FAIR USE – the streaming did not substitute for purchase and did not cause market harm. Assn for Information Media & Equipment v. University of California http://www.nacua.org/documents/UCLAStreamingMediaCopyright2012.pdf http://dockets.justia.com/docket/california/cacdce/2:2010cv09378/489296/
    28. 28. May We Show YouTube Video? Copyright and YouTube Terms of Service Copyright Law – Specific exception OR MAKE FAIR USE CASE Performance by instructors or pupils in faceto-face teaching activities of nonprofit educational institution in classroom or similar place devoted to instruction See also TEACH Act for distance ed 17 U.S.C. Sect. 110(1)and (2)
    29. 29. YouTube Terms http://www.youtube.com/t/contentid
    30. 30. YouTube Terms of Service 4. General Use of the Service—Permissions and Restrictions YouTube hereby grants you permission to access and use the Service as set forth in these Terms of Service, provided that: A. You agree not to distribute in any medium any part of the Service or the Content without YouTube's prior written authorization, unless YouTube makes available the means for such distribution through functionality offered by the Service (such as the Embeddable Player). B. You agree not to alter or modify any part of the Service. C. You agree not to access Content through any technology or means other than the video playback pages of the Service itself, the Embeddable Player, or other explicitly authorized means YouTube may designate. D. You agree not to use the Service for any of the following commercial uses unless you obtain YouTube's prior written approval: the sale of access to the Service; the sale of advertising, sponsorships, or promotions placed on or within the Service or Content; or the sale of advertising, sponsorships, or promotions on any page of an ad-enabled blog or website containing Content delivered via the Service, unless other material not obtained from YouTube appears on the same page and is of sufficient value to be the basis for such sales. E. Prohibited commercial uses do not include: uploading an original video to YouTube, or maintaining an original channel on YouTube, to promote your business or artistic enterprise; showing YouTube videos through the Embeddable Player on an adenabled blog or website, subject to the advertising restrictions set forth above in Section 4.D; or any use that YouTube expressly authorizes in writing. (For more information about what constitutes a prohibited commercial use, see our FAQ.) http://www.youtube.com/t/terms?hl=en
    31. 31. International Developments http://www.librarycopyrightalliance.org/bm~doc/user-guide-marrakesh-treaty1013final.pdf
    32. 32. International Library Copyright Treaty Discussions http://www.wipo.int/meetings/en/details.jsp?meeting_id=29944
    33. 33. Agenda Ebooks Lending content Litigation: Google Books, Hathi Trust Other issues E-reserves Streaming videos UCLA, YouTube Changing formats International developments

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