To Kill a Mockingbird e-book at B&N, but is it legal?

To Kill a Mockingbird e-book at B&N, but is it legal?

You can go to

eReaderIQ

and list books to have them notify you when they are released in Kindle format. This is one of the great free services offered by that site, which is perhaps the most valuable Kindle resource on the web.

Harper Lee’s To Kill a Mockingbird is the most watched book right now, and typically has been.

Why isn’t it already legally in e-book form?

Well, my understanding is that Harper Lee doesn’t like to talk about TKaM, and even perhaps wishes it was never published in the first place (for personal reasons).

Rather than being specifically opposed to e-books, my sense is that no one wants to approach the author about the issue, and while that unfortunately makes the book unavailable, I can respect that.

So, it was quite a surprise when I was alerted to this listing at Barnes & Noble:

To Kill a Mockingbird e-book

Thanks to Meya, one of the Kindle Forum Pros, for that heads-up!

If this was a legitimate edition, done with permission of Harper Lee, I would have seen it announced six ways to Sunday (even though this is Sunday). It would be as big a coup as when the Harry Potter books went to e-book (although somehow, I don’t think “Harpermore” would be as fun) and if a publisher got it, they’d trumpet it.

I checked first to see that it was the book, and not a guide book or something. They have a “look inside” feature, and it appears to be the full work.

Then, I looked at the publisher listed. It says it is from “Micro Publishing”. A quick search doesn’t show me a publisher with that name.

Harper Lee has been with HarperCollins (I believe HarperCollins and Harper Lee are just  coincidentally similar) as a publisher for some time, so I checked their site: no evidence of an e-book.

Actually, that’s a good path for me: I’ll probably send HarperCollins something to give them a heads-up.

This could be a legitimate version, but I think that’s unlikely. You usually can’t complain about infringement on behalf of someone if you don’t have a personal stake in the book: it would make it too likely for nuisance removals, which is apparently what happens at YouTube.

Anyway, if this an authorized edition and Amazon also gets it, great. I think the most likely thing, though, is that this is someone using Barnes & Noble’s independent publishing platform to infringe).

What happens if you buy it as a NOOK book and it turns out it is infringing? You won’t be legally liable for anything…it’s the distribution that’s the problem. The Supreme Court has ruled that having infringing copies isn’t the same as having stolen goods (infringement and theft are two different crimes, for one thing). Amazon famously removed infringing copies of 1984 from Kindles, and said they wouldn’t do that again in the same circumstances (that was overstepping the bounds…as I mentioned, having the book wasn’t illegal). I would hope, though, that people would voluntarily delete it.

If I hear more, I’ll let you know.

Update: it appears to be gone from Barnes & Noble this morning. It’s possible that the post here and/or my contacting HarperCollins had something to do with it.

I suspect some people probably wish it was still there, but if it was infringing, I’m happy to see it gone.

This post by Bufo Calvin originally appeared in the I Love My Kindle blog.

Re-imagining copyright

Re-imagining  copyright

Maria A. Pallante, the Register of Copyrights, recently spoke before Congress about the future of copyright:

The Register’s Call for Updates to U.S. Copyright Law

The transcription linked above is fairly short. I’ve read it, and I had a couple of people direct me to it as well (thanks for that…even if I’ve already found something, I appreciate getting a heads up).

There are certainly interesting things in this Federal document. I’m going to reproduce a couple of paragraphs here:

“A central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age. I do not believe that the control of copyright owners should be absolute, but it needs to be meaningful. People around the world increasingly are accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws.

Moreover, while philosophical discussions have a place in policy debates, amending the law eventually comes down to the negotiation of complex and sometimes arcane provisions of the statute, requiring leadership from Congress and assistance from expert agencies like mine. The list of issues is long: clarifying the scope of exclusive rights, revising exceptions and limitations for libraries and archives, addressing orphan works, accommodating persons who have print disabilities, providing guidance to educational institutions, exempting incidental copies in appropriate instances, updating enforcement provisions, providing guidance on statutory damages, reviewing the efficacy of the DMCA, assisting with small copyright claims, reforming the music marketplace, updating the framework for cable and satellite transmissions, encouraging new licensing regimes, and improving the systems of copyright registration and recordation.”

However, while the Register says that “…Congress does not need to start from scratch…”, I wanted to do just that.

I’m going to free us from the requirement to think about what could pass, and what is technically possible, and ask us just to re-imagine copyright. I’m going to act as if there had never been copyright, and look at the idea afresh.

After all, the original concepts of copyright largely had to do with protecting people who made maps. There was a lot of risk in mapping a coast, and if you couldn’t benefit from it (since other people just reproduced your map and sold it), there would be a lot less incentive for people to invest in the enterprise. Certainly, people would still have explored, but it wouldn’t be likely to produce the kinds of relatively accurate maps that other people could use.

So, let’s start at the very beginning.

Someone creates something intangible, a book, a song, which can be consumed by others.

Why should the government be involved in what happens next?

What are the societal benefits in creating law which controls what happens to that work?

Well, there are a couple of things.

The first thing we could say is that there is just a moral right that the person who created the work should have control over how it is used. In that argument, we are protecting people from unreasonable exploitation by others.

We do pass a lot of laws for that reason. For example, if someone is a “Peeping Tom”, that’s illegal. There doesn’t have to be any monetary use of that…the observer doesn’t have to sell, or even record, images of you for it to be a crime. We just say that you have the right to that privacy, and someone who violates that right can be charged with a crime. We could think of copyright the same way: you created that work, and you should get to control who consumes it.

The other big argument is an advantage to the economy.

That says that there is a plus to the society in people creating something, and that they won’t tend to do it without the ability to make money from it (this is akin to the map argument).

Would somebody spend $100 million to make a movie if there wasn’t a way to make that money back?

Would someone spend two years researching a non-fiction book, if they couldn’t be compensated?

This one suggests that copyright makes it more likely for valuable ideas to get into societal use, even if that use is controlled by the creator of the work. If you can’t make money with that documentary, would you share it with other people the way movie makers do now?

While emotionally, the moral argument is powerful to me, I think I would tend to set up a government system based on making money. The taxes from that clearly benefit the society, and an economic motive is going to encourage production and risk.

Here’s my first new copyright postulate:

If you create something, you have the right to make money from it.

Now, current copyright recognizes something called “Fair Use”.

U.S. Copyright Office – Fair Use

When you look at the elements of Fair Use, it currently suggests that there are times when your right to control your material is  overridden  by a societal good…such as criticism of your work, or teaching (within limits).

I’m going to expand this in my thinking.

Here’s my second new copyright postulate:

If what someone does does not impact your ability to make money on your work, you do not have control over it.

This is sweepingly broad, and would be a big change. It would create a lot of arguments when there was transmission involved from one person to another, but it would remove a lot of controversies over personal use.

The burden would be on the rightsholder to prove that making money was impacted.

For example, let’s say you have a p-book (paperbook). You want to scan it and turn it into an e-book for your own personal use. While many people assume that’s legal, and it may be, that isn’t clear.

Under my re-imagined copyright, the rightsholder has to prove that you would otherwise have bought an e-book if you couldn’t do that. There isn’t a presumed control over every copy produced, just a control over making money from your work.

This is, incidentally, how a lot of readers seem to think it should work (that doesn’t make it right, of course). If they bought the book once in paper, they think they are entitled to a free copy in e-book form. The same could be said for going from a hardback to a paperback…if you wouldn’t have bought the paperback, should it be okay for you to photocopy the book and reproduce it in a more convenient form?

I need to be very clear that I am not advocating these changes, I’m just thinking about them.

Under this new concept, it isn’t reproduction that matters: it’s consumption.

Could it be worked out that the rightsholder collects a fee every time you read a book? In other words, you buy the book, pay for reading it the first time, don’t pay anything more if it sits around in your archives (on your bookshelves in the paper world), then pay for it again if you read it again years later?

As you can see, I’m not worried about the technological implementation in this “thoughtabout”. I’m looking for the guiding principles.

What about somebody licensing/buying a book from you, and then distributing it for free over the internet?

Hm…if the purchaser could be charged for everybody who read that free copy, that could work.

Somebody reads it, the rightsholder gets paid.

Ideally, of course, the rightsholder gets paid before somebody reads it.

That might be the best way to go, in this hypothetical world. The rightsholder is paid per use.

Of course, that would mean that there would be some sort of record of who was using what, and people would resist that…but I’m not concerned with what’s practicable right now.

Another major issue is whether creative works eventually belong to society at large. I’ve asked this question before:

Should copyright be permanent?

Under my first postulate, if copyright is purely to protect an economic value, then you give up copyright if you are not using it to make money.

That sends shivers down my spine in a bad way…I want artists to be able to control their art, emotionally. However, is that what the government should be doing?

We do this already with patents…if you don’t use your patent, you can lose it.

We could say that if your book isn’t available to the public (“in print”, in the old parlance), or if you aren’t making a good faith effort to make it available, you lose control over it.

What about educational use? If the educational use doesn’t cut into the market, then it would be allowed in this new conception. If it did, if the students don’t buy the work because they can read for it free whenever they want to as part of a class, that would fail the test.

Oh, those might be some complicated court cases in the beginning!

Actually, I think these two postulates create an interesting balance. You control your creative works as long as you are using them to make money, and any other use of them is okay.

What do you think? I’m not terribly happy with this myself, and can poke holes in it. I just really want to rethink things. We shouldn’t have copyright which is based on individual ownership of physical containers, because that’s just not the entire future.

Do you think copyright should take into account art for art’s sake? Should educational use get any special and separate rules? Parody is legal in the USA, not legal in Canada…what should it’s status be? What do you think of what Register Pallante has actually suggested? Feel free to let me and my readers know by commenting on this post.

This post by Bufo Calvin originally appeared in the I Love My Kindle blog.

Supreme Court rules in First Sale Doctrine case

Supreme Court rules in First Sale Doctrine case

The Supreme Court has made an important ruling on copyright.

http://www.supremecourt.gov/opinions/12pdf/11-697_d1o2.pdf

It was getting quite a bit of coverage yesterday, and I was seeing some wide-ranging guesses about what it might mean. I wanted to wait until I’d read the 74 page document…so you don’t have to. If you want to read it, you can, and I have to say, it’s one of the more entertaining and clearly written legal statements I’ve read. I’m not a lawyer, by the way…just an interested layperson, but I have read a fair amount on copyright.

I’ve written about the “First Sale Doctrine” before, but a quick summary of it is important to understanding this case.

Essentially, it is a limitation on the exclusive rights granted to a copyright owner. It says that your rights to “distribution” are exhausted after the first sale of a copy of the book (I’m really paraphrasing here).

In other words, the copyright owner gets to control distribution of the work (within limits), until a copy of it is bought by somebody. That copy (not the work itself) is the property of the person who bought it, who can then resell it/destroy it and so on without the copyright owner’s permission.

I think it’s easiest to refer to the book as the words the author wrote (and the editor edited and so on) and the “container” of those words…the paper on which the book is printed. If you buy a copy of a paperbook, you own the container, and you can do what you want to do with that. You don’t own the words the author wrote, so you can’t photocopy the book and sell it on line, for example.

When you buy a license for an e-book (which is what you buy in a Kindle store), you own that license just as much as you own a copy of a paperbook. However, what you download is not the same thing as buying a paper container. Your license will allow you to download the book (typically to multiple devices) in order for you to read it, but that doesn’t exhaust the copyright owner’s rights in the same way as buying a paperbook copy. You agree to terms of the license, which may include you not redistributing the work.

This decision does not allow you to resell an e-book which you have licensed (although arguably, if you bought a legally produced e-book on a CD at a garage sale, you could resell it….but that form of distribution is rare, certainly).

This case really addressed a pretty narrow issue: does the First Sale Doctrine’s ability to override the exclusive rights given under copyright (which includes importation) apply to books legally manufactured abroad?

Let me summarize this case a bit. It is not an issue of somebody having been overseas, bought a book in a bookstore while on vacation, and selling that book to a used bookstore in the USA later.

This was clearly a case of the person importing the books to the USA with the intent of making a profit.

The ruling says:

“Respondent, John Wiley & Sons, Inc., an academic textbook publisher, often assigns to its wholly owned foreign subsidiary (WileyAsia) rights to publish, print, and sell foreign editions of Wiley’s English language textbooks abroad. Wiley Asia’s books state that they are not to be taken (without permission) into the United States.When petitioner Kirtsaeng moved from Thailand to the United Statesto study mathematics, he asked friends and family to buy foreign edition English-language textbooks in Thai book shops, where they sold at low prices, and to mail them to him in the United States. He then sold the books, reimbursed his family and friends, and kept the profit.”

Kirtsaeng apparently had a DBA (Doing Business As), and sold hundreds of books this way. For me, this was clearly an import business. That doesn’t necessarily impact the decision, but I think it’s important to realize that this was a case of someone operating a commercial venture, not someone who was just a reader selling a book after finishing it.

What Wiley (the publisher) had done was publish a cheaper version of the book in Thailand, for the Thai market. They had included a statement in the book that it was not to be taken without permission into the United States.

The question boils down to this: does the USA’s First Sale Doctrine apply to those books manufactured outside the USA and then brought here and sold?

If it does, Kirtsaeng was fine. If it doesn’t, Kirtsaeng was infringing on the rights of Wiley to control importation of legally produced copies.

The Court’s ruling, and the dissent, really hinge on these five words: “lawfully made under this title”. The “title”, in that case, is basically US copyright law (not the title of the book).

Does it mean “made subject to the conditions of US copyright law” or “made in a jurisdiction of US copyright law (i.e. the USA)”?

The majority decision said that it meant under the conditions…there was no geographical barrier to First Sale Doctrine (for secondary sales happening in the USA).

Judge Ginsburg wrote the dissenting opinion (it was 6 to 3), arguing that the geographical limitation does apply.

I think those dissenting opinions are often the most interesting…but I tend to think that in life, too.

The Court appears to have reversed something it said (not something it ruled) in an earlier case. That lead to one of the funnier lines in the ruling:

“Is the Court having once written dicta calling a tomato a vegetable bound to deny that it is a fruit forever after?”

Here’s how I would read this:

Wiley thought it was following what the Court had indicated previously by having two different prices for two different markets, and that it would be able to enforce that.

Now, the Supreme Court says that’s not the case…once somebody buys that legal copy abroad, the copyright owner’s rights are exhausted (that’s called “international exhaustion”)…they no longer have control over sales of that container.

What are the implications of this?

Publishers may not be able to have two prices for two markets for p-books in the same way any more, and that could be a real problem for them. It could logically mean that prices in Thailand shoot up to match the USA (or at least to account for those possible USA resales).

The Court acknowledges that:

“…Wiley and the dissent claim that a nongeographical interpretation will make it difficult, perhaps impossible, for publishers (and other  copyright  holders) to divide foreign and domestic markets. We concede that is so. A publisher may find it more difficult to charge  different  prices for the same book in different geographic markets. But we do not see how these facts help Wiley, for we can find no basic principle of copyright law that suggests that publishers are especially entitled to such rights.”

In other words, “hard cheese”.

The Supreme Court acknowledges that it’s a problem for Wiley in the future, but hey, it’s not the Court’s problem.

I do not think the decision makes it more likely that we’ll be able to re-sell e-books (although there are other things that may make that possible…see Patent suggests Amazon could create used e-book market.

I do think that there are other countries that won’t like this decision (partially because we appear to be flipping on the issue of international exhaustion), and that it may drive up prices outside the USA.

What do you think? Feel free to let me and my readers know by commenting on this post.

This post by Bufo Calvin originally appeared in the I Love My Kindle blog.

Little Orphan E-books

Little Orphan E-books

I’ve written a number of times in the past about “orphan books”.

Those are ones that are still under copyright, but where potential publishers can’t find anybody with whom to negotiate for the license to publish the book, so it stays unavailable to the public.

In fact, orphan books regulation was one of the things I mentioned a couple of years ago in

Five things the USA can do to help e-books stimulate the economy

I keep hoping to see legislation passed that would find a way around the dilemma and thereby legally get more older books into the market.

Well, according to this

Publishers Weekly article

it appears that it won’t happen soon.

The Copyright Office has recognized that orphan works represent “…a major cause of gridlock in the digital marketplace”.

You can read comments submitted when the Copyright Office raised the issue in late 2012

here

It’s obviously a tricky issue, but I do think the weight is falling towards some sort of solution, and that we’ll get it eventually.

There are, in a sense, four strong positions at work here.

One is basically the creators’ rights to control the use of their content (within copyright limits), even if that means the public doesn’t have access to it. It says that the principal of ownership of intellectual property is supreme, and even when the creator of the work can not be contacted, actions can not be taken without permission.

A second is an economic driver. There is money to be made and sales are being lost because a book can’t be republished…even though people want it. The publishers with this position are not saying that the author shouldn’t be compensated if they can be found. They are saying that if the author can’t be found after due diligence, the book should be able to be published, and the author will get paid if they show up and claim (and prove the right to) royalties.

A third position is the one that says that society has the right to literature and nonfiction works created within it, after reasonable compensation has been made to the author. This doesn’t necessarily say that there shouldn’t be copyright at all, but that, when in doubt, a book should be made available, not withheld.

The fourth one is an interesting fork in interests. This is the strengthening of Fair Use, in this case meaning that being able to read a book from a library might be okay when publishing it for profit isn’t. That puts the libraries potentially in a position of arguing against orphan work release. If the libraries have the books and the bookstores don’t, it’s a plus for the libraries.

I have explored the idea of much broader Fair Use before. I suggested in one of my least popular articles

Should copyright be permanent?

that it might be possible to make “societal benefit use” free, in exchange for permanent copyright for commercial purposes. A school would be able to use the latest pop hit in a classroom in order to analyze the music without paying a royalty, for example.

One proposed solution to orphan works is to create a collective registry, where royalties are paid into a big pot (if you can’t find a rightsholder) and sit around waiting for someone to claim them.

That does amount to publishing without permission, and you can easily see how it could create a huge expensive  bureaucracy  that becomes a massive and significant entity in itself. It could have millions of dollars that just sat there, while every once in a while, an author (or a descendant…copyright extends beyond death, generally) showed up and collected a few bucks from it.

I’m not sure what the right answer to this is, but I think we’ll find one in the next ten years. I know that copyright infringement prosecutions can be a pretty profitable “business”, and that might be something else that works against orphan books legislation.

Years ago, I knew someone who said they made their living this way.

The person was a lawyer. They’d go out to local bars, and write down the songs that the band played. They’d get contact information for the band.

The lawyer would send a bill for the royalties.

The band would pay up (being threatened with much more onerous consequences if they didn’t), and the lawyer would turn it over to the rightsholders, getting paid what amounted to a “bounty” for the work.

The lawyer owned a decent house…

What do you think about this? I think the broader question is, how does copyright need to be reformed generally, if it does? It is virtually impossible to control reproduction and distribution at this point…very different from what it was even fifty years ago (much less when copyright was conceived). Does making something legal which was illegal result in an ability for the creator to get compensated (which in turn results in taxes for the government)? Is there a parallel to legalize drugs…the government doesn’t profit from illegal drugs (and indeed, spends a lot of money trying to enforce laws), but makes a lot of money from legal substances (like alcohol and tobacco)? Of course, the drugs are a different story, because they also can cause expenses for the government (in healthcare, for example). How would you fix copyright, if you think it is broken? Feel free to let me and my readers know by commenting on this post.

This post by Bufo Calvin originally appeared in the I Love My Kindle blog.

Taking back the backlist

Taking back the backlist

The tradpubs (traditional publishers) have had a lot of challenges lately, and 2013 brings another big one that may certainly result in higher prices for consumers and/or loss of content licensing for them.

This goes back to the 1978 revision of the Copyright law, and the relevant portion is in Section 203 of Title 17:

http://www.copyright.gov/title17/92chap2.pdf

“—In the case of any work other than a

work made for hire, the exclusive or nonexclusive grant of a transfer or license of
copyright or of any right under a copyright, executed by the author on or after
January 1, 1978, otherwise than by will, is subject to termination under the following conditions:

<snip…I’m cutting to the next important part>

(3) Termination of the grant may be effected at any time during a period of
five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier.”

Now, there’s more to it than that, but basically, authors can simply reclaim the rights to books published in 1978 starting next year.

So, if Stephen King wants to reclaim the rights to The Stand, he can…sorry, publisher.

That also goes for books like The Road Less Traveled, The Far Pavilions,  and The World According to Garp.

This is a disaster for traditional publishers, although they’ve known it was coming for some time (about thirty-five years).

It has become a much bigger problem since approximately 2007, though.

Why?

Authors now have a very viable way to distribute their books themselves…through e-books.

Does that mean a brand name author is going to dump a publisher they’ve been with for years?

My guess is probably not…but they will want compensation for not dumping them.

In fact, if you were my agent and you didn’t negotiate something on a book that was still selling well when I had the option to take it somewhere else, we might have a serious talk.

Now, naturally, a lot of books published in 1978 may not have as much value as those well-known ones I named. If the rights haven’t already reverted to the authors or their estates, the impact on the publishers may be small, while it might let an author independently publish a book, giving it a second life.

For the bigger titles, though, why is this such a big deal for publishers?

They live on the backlist, also called the “long tail”.

When I managed a brick-and-mortar book, we’d get paper catalogs from publishers. The front of the catalog would be the new and hot titles, the ones they were promoting. There would be a picture of the cover, maybe an author bio, maybe a blurb…they were spending money to market it.

In the back of the catalog, there was pretty much just a list of reliable older titles (hence the “backlist”). We didn’t need to have Hemingway or Ian Fleming promoted to us…we already knew what they were and what they would probably sell (unless there was a new movie version or something like that).

Those sold for us reliably, so we bought them reliably.

The publishers didn’t have to do anything to sell them to us…so it was very cost effective for them.

They probably also weren’t paying new licensing fees every year. They would have recouped their production costs. While there were a few ongoing costs (accounting and such), the books were pretty much gravy.

Now, the gravy train might be derailed.

It’s unclear as to how much of an impact this will have, but I’m sure it will have some.

As this continues throughout the years, it may mean we see books as e-books we might not otherwise see until they fell into the public domain…but it might also mean that the tradpubs raise the prices to cover those “retention fees”.

It will be interesting to watch…

This post by Bufo Calvin originally appeared in the I Love My Kindle blog.

Round up #124: iPad Mini helps Fire’s sales, no NOOK on Surface

Round up #124: iPad Mini helps Fire’s sales, no NOOK on Surface

The ILMK Round ups are short pieces which may or may not be expanded later.

iPad Mini like spinach to Kindle Fire’ s Popeye

“Kindle Killer” fans, lose one turn.

Amazon told

All Things D

that Wednesday, October 24th, was the biggest sales day to date for the  Kindle Fire HD.

The day before, Apple had announced their long-awaited iPad Mini.

Is it reasonable to conclude that the announcement of the Mini helped Kindle Fire sales?

I think so. I suppose its possible that every day for the Fire has been the best sales day to date, and that it would have been even higher if the Mini had not been announced, but I doubt that’s the case.

Why would the biggest brand in the world announcing a potentially competing product help your product?

My guess is that a lot of people were holding off on buying a smaller tablet until they saw what Apple was going to do.

They saw it; they didn’t like it.

The clearest negative is price, as I addressed in this earlier post. At $329, it’s just too much compared to the $199 Kindle Fire HD or $159 Kindle Fire SD. Comparing it to the former, which is the more comparable model, it’s like Amazon has a $20,000 car…and Apple is selling a $33,000 car. You can certainly sell cars at $33,000, but they better have a whole more going for them…and I don’t think, in a fair comparison, that the iPad Mini does.

While Apple is certainly likely to pile up the cash in the near future, this move has people wondering about the longer term:

Forbes: “Tim Cook Dumps Steve Jobs’ Product Strategies With iPad Mini”

No NOOK app on the Microsoft Surface

I don’t know…don’t you think that after Microsoft gave Barnes & Noble $300 million, Barnes & Noble could have spared less than one percent of that to make a NOOK app for the Surface?

This has people scratching their heads:

Wall Street Journal article

I have no doubt that B&N will have a lovely app and bookstore for Windows 8 and the Surface tablet soon…but meanwhile, all those people who decided to go with a Surface will get hooked on Kindle. It’s like showing up to the World Series three innings late; it doesn’t mean you can’t win, but…

Supreme Court to hear First Sale Doctrine case on Monday

Back in 1908 (which is a long time ago, but more than a century after the founding of the USA), the US Supreme Court heard a case. A publisher, Bobbs-Merrill, had put a notice on one of their books that it could not be sold for under $1.

The R.H. Macy department store sold it for eighty-nine cents.

The publisher asserted that violated its copyright.

The case got all the way to the Supreme Court, which ruled in favor of the retailer.

FindLaw text of the decision

Copyright did not extend to control of a copy after it was initially sold. The rightsholder still holds rights to the book itself (what the author wrote); just because you bought a copy of a paperbook doesn’t give you the right to turn it into a movie or make more copies and sell them. However, that copy you buy is yours to control; sell it; give it away; burn it.

This was made part of US copyright law in 1976:

http://www.copyright.gov/title17/92chap1.pdf

Section 109 reads in part:

“§109 · Limitations on exclusive rights:
Effect of transfer of particular copy or phonorecord
(a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.”

On Monday, the Supreme Court may take up a case about the First Sale Doctrine, and in a lower court, the publisher has been upheld.

Here’s the basic thing:

Publishers may sell books for different prices in different markets around the world. That makes sense: the economies are different, distribution costs are different, and so on.

In the case at hand, a student bought textbooks overseas (or had people buy them) cheaply, then imported them to the USA and sold them here for a profit.

Washington Post article

There is a lot of speculation out there that, depending on the ruling, this could mean the end of used bookstores, the end of Netflix renting DVDs…heck, practically the end of garage sales.

I don’t think the Supreme Court is going to rule that broadly.

The argument by John Wiley & Sons, the publish is, I believe, that the First Sale  Doctrine does not apply to those books that they manufactured overseas.

That’s a narrow argument. The Supreme Court doesn’t have to say whether it should apply or not, just whether it does.

Go back to the part I quoted. Here’s the key phrase to me:

“…copy or phonorecord lawfully made under this title” (emphasis added)

Those books abroad are not made under Title 17 of US law…so Section 109 doesn’t apply.

Essentially, the Court could do a few things, as I understand it:

• Let the lower court decision stand: the student who imported the books would owe the publisher money, and people would not be able to import copyrighted materials from overseas and sell them here if the copyright owner was here and did not give permission
• Overturn the lower court, meaning the student didn’t owe anything
• Say that the First Sale Doctrine does not apply any more…to anything

I think the bottom one is unlikely, but you never know.

If the first choice was made, you could see publishers move a lot more manufacturing overseas. Cutting out the used book market might certainly sound attractive to them, although no doubt some people have significant “discovery” through used books. For example, a person might get a book by a particular author for fifty cents at a garage sale, then go on to buy the author’s newest book for $20 from a bookstore.

If the First Sale Doctrine went away in the USA, hypothetically, the price of textbooks could come down. Supposedly, part of the reason they cost so much is that they are commonly resold several times.

I wouldn’t count on that, though.

It will be interesting to see what happens.

Trying to go netbook-less

I’m trying to make the transition to using my Kindle Fire HD and a Bluetooth keyboard to replace a netbook we own, so my Significant Other can get the “small laptop” back. I’ve monopolized it for a long time.

So far, the results are uneven. I can type on it just fine; better, in fact, than on our desktop, since the keyboard sits more comfortably.

The problem has been in copying and pasting, and launching things effectively.

I seem to have no problem copying anything, but getting it to paste into some boxes on the internet is hard. The biggest problem is that I can’t seem to paste where I want to paste effectively when writing a blogpost in WordPress.

I am, though, able to respond on the Kindle forums just fine…even pasting a URL, for example.

One negative is that I know I haven’t been quite as responsive to comments on this blog (although I think I’m still pretty fast when doing it).

I also have to take my hands off the keyboard to use the Fire to tap, say, a “post” button. I think I’ll be able to work out that part of the juggling; I’m hoping to find an effective keyboard way to do it.

I think when I have my larger screen Kindle Fire HD that will also be easier…it’s a tad small to see the 7″ when I’m typing away. I’m a touch typist, so I don’t have to look at it all the time, but I do need to see it sometimes.

What do you think? Will the Supremes overturn the First Sale Doctrine? If so, how does that affect the migration from paper (where people resell extensively) to e-books (where they don’t resale, generally). How big a misstep is the iPad Mini price (if you think it is one at all)? Was Barnes & Noble just behind a deadline, or is there something more fundamental happening? Does it mean anything that Microsoft didn’t hold the launch for them? Feel free to let me and my readers know by commenting on this post.

This post by Bufo Calvin originally appeared in the I Love My Kindle blog.

Federal judge does NOT legalize selling “used” MP3s

Federal judge does NOT legalize selling “used” MP3s

WAR IS PEACE, FREEDOM IS SLAVERY, IGNORANCE IS STRENGTH*

There is a recent Federal judge’s decision that is getting some serious “through the looking glass” spin (as well as honest misinterpretation). I’d say the headlines are from Bizarro world, but I think two pop cultural references are enough on this.

Let’s go through the basics on what is happening here and look at what the judge actually said…and what it might mean.

There is a website, ReDigi, that lets people resell “used” MP3s. It’s all done quite narrowly…the music is from iTunes, proof of ownership is part of it, and the person who sells it doesn’t still have access to it. It is understandably attractive to some people who bought music. You buy a tune for ninety-nine cents, and maybe resell it for thirty-five cents…lowers the effective cost considerably.

Capitol Records has objected, and is taking ReDigi to court.

The record company also asked the court for an injunction to stop ReDigi’s activities (as they relate to Capitol) while the case progresses.

Judge Richard J. Sullivan denied the injunction.

Some of the blogosphere interpreted this as the judge siding with ReDigi.

That’s actually pretty much the opposite of what happened.

According to this

transcript posted by Wired.com

the judge said the following (in part):

“I think likelihood of success on the merits is
3 something that plaintiffs have demonstrated. I should bear in
4 mind or at least repeat what the lawyers already know, which is
5 that that doesn’t mean that I’m finding that the plaintiffs
6 would win in this case, it’s just that they have demonstrated
7 that there are arguments that on their face look to be
8 compelling or potentially persuasive arguments. They have
9 certainly done a good job of articulating those based on the
10 statute, which I think covers that element.”

The plaintiffs in this case? Capitol Records.

The reason why a court would issue an injunction (which, in a sense, punishes someone who has not yet been found guilty) is if the accuser will suffer “irreparable harm” while the process is being settled.

In other words, the judge would issue an injunction if Capitol Records was not likely to be able to recover damages even if they win.

In this case, the judge felt that ReDigi is keeping good records, so that if they lose, there will be a specific accounting of what is owed to Capitol.

Let’s say that you have trees on your property that are more than a hundred years old. Another party is cutting down those trees. In that case, a judge might issue an injunction because, even if you win, those trees can’t be exactly replaced. You would suffer a loss that could not be repaired.

As another example: suppose you have a big movie that’s about to come out. Someone is distributing bootleg copies of your movie on the internet. That could hurt your box office in a way that could not be recovered. People might not go to your movie in the theatres, and there might be no way to stop those copies from circulating once they were out in the wild. That would be a reason for an injunction.

ReDigi is not distributing willy nilly. It’s carefully controlled. They are arguing that their customers have a legal right to do this.

If ReDigi wins, ReDigi would have suffered a loss by having their sales stopped while the case went on.

If ReDigi loses, Capitol would not have lost anything for which Redigi couldn’t compensate them.

The judge had to consider other factors than just the sales…would the market be confused by what was happening with ReDigi, and thus hurt Capitol?

The judge’s decision was that there was no irreparable harm in allowing ReDigi to continue until there is a legal decision.

Judge Sullivan also said:

“And as to the public interest, I think obviously the
21 public has an interest in seeing copyright law enforced. On
22 the other hand, that copyright law includes recognitions of
23 things like legitimate secondary markets and the ability of
24 owners to resell their items.”

So, the judge did not decide that re-selling MP3s was legal. The judge decided that there was no irreparable harm in allowing ReDigi to continue while the case continues.

Who will win in the court?

I know enough to know that it will depend on the arguments made. My own sense of it is that the First Sale Doctrine (which is what allows you to resell a copy of a paperbook you bought without getting permission from the rightsholder) doesn’t apply to a license (which is with what we are generally dealing in conjunction with digital content). In other words, it would surprise me if ReDigi won in court, but it could happen.

I think looking at the beginning of this article that I might be being too snarky in the intro. I think there are legitimate, thoughtful people who believe that the First Sale Doctrine does apply to licenses. I was reacting to people headlining something that doesn’t seem to me to be what the judge said…I thought that might be misleading.

I hope I’ve made the case a little clearer. I’ll be interested to see what happens as it goes forward.

• ReDigi announcement on the decision
• Darlene Storm article in Computerworld
• Amazon Kindle community thread started by NalaJr that alerted me to the ruling

* These are from 1984 by George Orwell. As you can tell, they reverse logic, but part of the argument of the book is that people can be swayed in some way by statements like that. In this case, I was (somewhat emotionally) seeing the “judge legalizes” as the opposite of what was the reality. In rethinking this, the judge didn’t say it was illegal either, so that is an exaggeration. However, I can see how “Ignorance Is Strength” applies to headlines that misrepresent the facts, so I’m leaving it. Feel free to let me know if you think I should have removed it…I’m a bit on the fence myself

This post by Bufo Calvin originally appeared in the I Love My Kindle blog.

Supreme Court to decide: can Congress take books out of the public domain?

Supreme Court to decide: can Congress take books out of the public domain?

Sometime in the future…

“Mr. Cratchit?”

“Yes?”

“I’m here to collect fifty dollars in royalties.”

“Royalties? For what?”

“You posted a YouTube video featuring your children seeing a song owned by client.”

“What? What song?”

“Jingle Bells.”

“Jingle Bells? Listen, this must be a mistake…I looked it up before we posted. That song was published in 1857! It’s in the public domain.”

“It was. Congress reinstated the copyright, and the people I represent, DeadGuyMusic.com, purchased the rights for the USA. Your lovable tykes; performance infringes upon my clients’ legally established domain. If you do not pay the $50, we will be forced to bring federal charges.”

“I…I guess I’ll pay it.”

“Thank you. I’m off to shut down Ms. Patel’s third-grade class performance of The Wizard of Oz.”

“The musical?”

“No, they are just reading the novel out loud. I also represent DeadGuyBooks.com…”

Could this happen?

Could Congress take books out of the public domain?

That’s one of the things that the Supreme Court will look at this term…and possibly very soon.

It could hypothetically really affect the books we read.

Many, if not most, of the books I’ve read on my Kindle are free public domain classics.

Public domain books in a case like that have typically been under copyright protection at some time, but have fall into what is called the “public domain”. At that point, they belong to the public…anyone can publish them without having to obtain (typically pay for) the rights from anyone.

That’s the basis of Project Gutenberg:

http://www.gutenberg.org

That great organization has volunteers digitize books that are in the public domain, and then distributes them for free as e-books.

Once a book falls into the public domain, it stays there.

At least, it used to stay there.

The problem is that the USA has some kind of convoluted copyright laws…we used to require a specific way for a copyright notice to be displayed, people used to have to renew the copyrights, and so on.

If you think that doesn’t matter, ask George Romero. When Night of the Living Dead was released, a distributor changed the title…and replaced the “title card”. The copyright notice had been on the original title card, and so it was released without a notice by accident.

Since then, anybody who wants to do it can release Night of the Living Dead…and they have, in some really shoddy editions (and some good ones, too). The loss of copyright also meant that other people could do derivative works…no, I’m not talking about all those other zombie movies out there. If you want to make a musical of Night of the Living Dead, and it’s in the public domain, you don’t have to get permission. There was an interesting internet version done in many animation styles (called Night of the Living Dead Reanimated).

That may sound bad (or good) to you. When something falls out of copyright, people can do anything they want with it. I’ve talked about the idea before of copyright being permanent, but this is something different.

The issue is that we sign international copyright agreements, which is important to protect our citizen’s intellectual property. If anybody could distribute the latest Hollywood movies abroad with impunity, that would be really bad for our economy. Many of our movies make most of their movie outside of theatres in the USA nowadays.

We run into a situation with that: the “rule of the longer term”. Effectively, we may agree that if a work is still under copyright under some other country’s rules with whom we have a treaty, we will have the book be under copyright in our country.

That’s fine, although complicated. We don’t have the longest terms (Mexico beats us, for one), but we could still make that work.

The weird thing is that Congress reinstated some copyrights under that situation.

Things like Peter and the Wolf were put back under copyright protection in 1994.

So, let’s say you were a music publisher, and you put out the sheet music for Peter and the Wolf when it was in the public domain.

Now it isn’t.

You’d have to stop selling your sheet music…or pay royalties on it.

Things take a long time to get to the Supreme Court…so they should be deciding this in 2011.

There are people who make their living (or try to) selling public domain e-books. That’s in addition to the free ones we get, of course. Nothing illegal (or wrong, in my opinion) about that. If you buy an obscure paperbook at a garage sale and go to the trouble to digitize it (assuming it’s in the public domain), I don’t see a problem with you wanting compensation for that.

If the Supreme Court says that it’s okay for Congress to restore copyrights, all of that gets risky (even if it’s unlikely they will restore the copyright to, say, A Study in Scarlet or Alice in Wonderland).

What if the Supreme Court says its unconstitutional for Congress to have restored copyright?

We might have to drop out of some international treaties. We might have to rewrite our copyright laws to be match other countries.

What happens is some other country then retroactively makes their copyright go back 1,000 years?

Do we match it?

Copyright has been getting longer over time as the “shelf life” value of creative works has gotten longer.

Whichever way this goes, it’s going to be interesting to see how it affects what we can read.

This

National Law Review article

gives you more in-depth background.

This post by Bufo Calvin first appeared in the I Love My Kindle blog. 

Flash! Homeland Security seizes bit torrent domain names

Flash! Homeland Security seizes bit torrent domain names

“Avast, ye scurvy dogs!  It be off to the brig with ye!”

Actually, even though it was fun to write that line, it’s not what happened.

ICE (Immigration and Customs Enforcement) has a reputation as being the enforcer in illegal alien issues in the USA.  However, they are also (as the C indicates) part of Customs.  Customs has to do with import.

ICE is part of the Department of Homeland Security (which integrates over twenty government agencies.

Let me set this up for you, and why it is related to e-books.

BitTorrent is a “protocol” that allows peer to peer sharing.  You can use it to send files and get files.  There isn’t exactly a central server…I could send to you and vice versa.

While there are legal uses for BitTorrent, it has also extensively been used by “pirate” sites to distribute unauthorized copies of movies, TV shows, music…and e-books.

Those sites are often outside the US, and they often are infringing on the legal rights of US entities.  That’s why this is under the jurisdiction of DHS.  If it was all taking place in the US, the FBI (and/or the Federal Trade Commission…and some other authorities) would have taken the lead, most likely.

What the government did, logistically, was pretty clever and simple.  They seized the domain names.  Let’s say that a site was named twobitsisaquartertorrent.com.  Before Friday, you could have gone to that site and been able to download illegal copies of, say, Harry Potter.  ICE took over the domain name, and put their own message on it.  The message basically said that the site had been seized pursuant to a warrant.

I’m not seeing a press release, but here is a

New York Times article

This is certainly not the first time sites have been seized but this story seems to have more of a buzz because of the involvement of DHS.

One of the main questions for people is going to be if the seizure was too broad.  If American sites had links to international sites, they may have been seized…but I haven’t seen the specifics of the warrant.  The warrant means that someone had to submit evidence and a judge had to approve.

Being shutdown is not good, of course, but at this point, I don’t think there is any other punishment.  Pirates haven’t been thrown into the brig, yet, from what I’ve heard.

I’ve also already heard that other sites are up.

If you use these sites, you know how you have been affected.  What if you don’t?

Well, fear of piracy has been one of the reasons some authors and publishers have suggested they haven’t done an e-book version.  I personally think that having a legitimate e-book version available is the best way to combat illegal versions, but it’s hard to get real statistics.

Conceptually, I don’t see a problem with this mission: stop sites enabling illegal activity.  It’s the execution of it that will get careful examination.  What if someone was writing about bittorrent sites, even critically, and linked to them?  Presumably, they would not have been included in a warrant…but we will probably hear stories alleging that sort of thing happened.

What do you think?  Does this strike a blow for artists?  Is this the government doing the work of big corporations?  Is it censorship?  Is it protecting the US from foreign infringement?  Feel free to let me know.

For more on piracy, see this earlier post.

Edited to add: tuxgirl, one of my regular readers, pointed out that speculation that this could be related to the recent wikileaks release of documents.  That’s certainly possible.  I’m not quite sure why ICE would lead that, though. 

This post by Bufo Calvin originally appeared in the I Love My Kindle blog.