After taxes- Google books deadline looms

As you finish up with your tax deadline, another important deadline is looming.

The Google Book settlement with the Author’s Guild has May 5 opt out deadline. That is a less than 3 weeks.

What does this mean to you?

Well, if you want to be a part of the settlement, you don’t have to do anything. But you need to make a couple of decisions.

1) Your first decision-does this affect me as a photographer? It may or it may not. According to the Google Settlement Page FAQ’s:

The settlement covers:

“all persons and entities that, as of January 5, 2009, own a U.S. copyright interest in one or more Books or Inserts that are “implicated by a use” authorized by the Settlement.”

“Photographs, illustrations, maps, paintings and other pictorial works in Books are covered by the Settlement ONLY when either (a) the U.S. copyright interest in the pictorial work is owned by a person who is also a copyright owner of the Book containing the pictorial work or (b) the pictorial work is an illustration in a children’s Book (see below). For example, if a copyright owner of a Book on photography is also a copyright owner of photographs in that Book, those photographs are covered by the Settlement. However, the Settlement does not cover any other photographs in the Book whose copyright is owned only by persons who are not copyright owners of the Book. Similarly, if a history Book contains a series of maps where the copyrights to those maps are owned only by persons other than a copyright owner of that history Book, those maps are not covered by the Settlement.”

2) If you believe you are covered by the settlement, you have a second decision. Do you want to participate?

How do you decide if you like the deal or not. Well, you have to know what google is authorized to do under the settlement AND what benefits you will receive. According to the Google Settlements FAQ page (run by Google), the following applies:

1. “What is Google Authorized to do Under the Settlement?
   Under the Settlement, Rightsholders authorize Google, on a non-exclusive basis, to:

   Cash Payments. Google will pay a minimum of $45 million to compensate Rightsholders whose works Google has scanned without permission as of May 5, 2009. Rightsholders of works Google has scanned without permission as of May 5, 2009 are eligible for Cash Payments, which will be at least $60 per Principal Work, $15 per Entire Insert, and $5 per Partial Insert. A “Principal Work” is the main work in a Book (that is, the part of the Book that does not include forewords, afterwards, footnotes and other material).”

   • Continue to digitize Books and Inserts
   • Sell subscriptions to an electronic Books database to institutions;
   • Sell online access to individual Books;
   • Sell advertising on pages from Books;
   • Display portions of Book in a “preview” format to encourage sales of online access to Books;
   • Display Snippets from Books; and
   • Display bibliographic information from Books.

2. What Benefits Are the Rightsholders Receiving from the Settlement?

   63% of Revenues Earned in Google Book Search. Google will pay rightsholders 63% of all revenues Google receives from the commercial uses Google makes of the Books.

   Establishment of the Book Rights Registry. Google will pay $34.5 million to establish and maintain a Book Rights Registry, to locate rightsholders and create a database of their contact information and copyright interests in Books and Inserts, and to collect revenues from Google and distribute those revenues to rightsholders, and for notice and settlement administration costs.

   Right to Manage Books and Inserts in Google Book Search. Rightsholders will have the right to determine whether and to what extent Google may use their copyrighted writings.

My concerns about the settlement:

The Payment: $60 cash payment to scan your book and make it available online is not very much, compared to the purchases of the book which you will lose. While author’s will supposedly get 67% of the profits, it is not clear how they will determine who gets those profits or where the money from true orphan books will end up. Will they track the books that are read on their online service and distribute to those authors? It is important that there be a procedure in place that connects the use of each individual book with the author.

The Book Rights Registry: This should benefit creators. It is important that there be safeguards in the registry for privacy reasons. However, one of the main obstacles to paying creators is finding them, so this will definitely help.

What price will the the access be: This appears to be the million dollar question. While libraries are concerned about this number being too high (it currently costs $50 to access some law books on Lexis Nexis), author’s should be concerned about this number being too low. If someone won’t buy my book because they can get it online for $2, maybe I am losing a lot of money. Then again, maybe that is more than I would have gotten from a hard-copy sale. And maybe, like iTunes, more people will by my book because it cost less, and I will ultimately profit. But it is hard for an author to make that decision without more facts.

Right to Manage Books: This is what makes this settlement acceptable to me. If I can determine to what extent Google can use my copyrighted work, I control my work. This means if it is driving down my profit, I can adapt. But clarity on the amount of rights you can exercise would be helpful.

Magazines: Read my post below about magazines. While this settlement claims to be only about books, I am deeply concerned that similar online distribution of magazines is being accomplished by Google.

For more information:

Article about who is opposed to the settlement (includes a quote from Vic Perlman).

Blog post from the Advertising Photographers of America.

Article on Author’s Link.

This New York Times article discusses some of the philosophical objections to the settlement, including concerns that Google is creating a monopoly of access to “orphan” books.

The Author’s Guild, which is one of the organizations that initiated the suit. Keep in mind that they helped shape the terms of the settlement, so they believe it is fair. They have a large number of resources on their settlement page.

Google also has a settlement page.

I am a strong believer in the mantra “consider the source,” so while these resources may be accruate, you should seek out information and evaluation from a third party that is representative of creators.

All right, that should give you enough reading material until the tax extension deadline (yes, I filed for an extension for like the 5th year in a row).

Cheerio! Alicia

Magazine Death Pool

A magazine on the list at http://www.magazinedeathpool.com

Well, just to make us newspaper fans feel better, there is a blog called the Magazine Death Pool which is tracking the various magazine closings.

Some of these truly look like they deserved to go, but some are a bit of a surprise.

The blog itself seems to have lasted quite a while

Bankrupt Tribune Co. paying freelancers and stringers

Despite its bankruptcy filing on Dec. 8, 2008, Tribune Company appears to be paying freelancers and stringers for work done during the bankruptcy period (before Dec. 8). A memo on the Tribune bankruptcy website states that payments should arrive in mid-January. Some payments have already gone through.

In a memo on it’s bankruptcy website, Tribune wrote,

“After a careful review of the outstanding invoices submitted by the freelancers/stringers at Tribune’s business units, the company has determined that it will be possible to begin paying these individuals for work done prior to Dec. 8, 2008.”

According to the memo, payments have a statutory limit of $10,950 per individual.

Work completed on or after December 8, 2008, is not affected by the bankruptcy filing and should be paid as normal, according to Tribune.

We have confirmed that some pre-petition invoices have already been paid.

Photographers with questions should check with the publication with which they have done the work for. Those who still have not been paid by the end of the month should file a Proof of Claim Form, available at this link:
http://chapter11.epiqsystems.com/documents.aspx?pk=7d2b7379-c031-4bdd-b0b1-9977bd9b8091

A creditors meeting is being held on January 16, 2009 at 10:00 a.m., at J. Caleb Boggs Federal Building, 844 King Street, Room 5209, Wilmington, Delaware 19801

More information on the Tribune bankruptcy, including the memo about freelancers can be found at:

http://chapter11.epiqsystems.com/tribune

And now, the really good stuff

In my Constitutional Law class, we have begun studying The First Amendment.

Ahhh. This is why I am here.

The beginnings of U.S. First Amendment Law were not so pretty. Early U.S. law forbid several kinds of speech. Not so long ago, in the early 20th century, when the U.S. is at war, the following was illegal:

• attempting to cause insubordination, disloyalty, refusal of duty
• displaying the flag of a foreign enemy
• publishing disloyal language about the form of government, the flag, or the Constitution

The laws evolved a bit over the years, even into the 1920’s there were many kinds of speech that were illegal, most of them relating to trying to squash the communist party movements in the U.S. There were convictions for holding meetings, advocating the illegality of the draft, and several other things. Justices in those decades often cited the fact that you can’t yell fire in a crowded theater (unless there is one), a proof that the First Amendment should have limitations.

Probably the most bothersome thing about what I read this week was the fact that the current standard for free speech is found in the 1969 case of Brandenburg v. Ohio, where the Supreme Court ruled that the Constitution protected inflammatory speech, in particular, a very nasty KKK rally. I wonder, if it had been a Black Panthers rally, if they would have reached the same result. But that is for the historians. Whatever the means that we got there is, the current judicial standard for free speech is this:

The constitutional guarantees of free speech and free press do not permit a state to forbid advocacy of

• the use of force, or the violation of law
• except where such advocacy is
• directed to inciting or producing imminent lawless action AND
• is likely to incite or produce such action

Seems to me that a KKK rally in the late 60’s would in fact qualify under this standard.

But basically there is a fine line here, which is this: belief, and promoting a belief is protected. Promoting violent criminal action is not.

A couple of important notes from earlier cases:

• Advocacy, means people are urged to do something, rather than believe something. (Yates v. United States)
• To be prohibited, words must be used in a way that they create a “clear and present danger” that they will bring about substantive evils. (Schenck v. United States)
• To put it another way, 1) there must be reasonable ground that the danger is imminent, and
  2) the evil advocated must be a serious one. (Whitney v. California, concurrence)

Ooooh. Fun!

Covering the Conventions? — Write this down

If you are covering the conventions, you should know about a wonderful resource that the Reporters Committee for the Freedom of the Press has every convention cycle: 24-hour convention legal hotline for journalists. According to their website, the RCFP has provided this service for every convention cycle for the last 36 years.

Credentialed journalists who face detention and arrest can call the hotline for legal help. There are different numbers for Republican and Democratic Conventions, but both numbers, and an informative flier that definitely should be printed out and brought to the convention is at this link:

http://www.rcfp.org/conventions/index.htm

The flier is jam-packed with useful notes. Please print it out and bring it with you. Read it on the plane. It has great insight into the arrest procedures, bonding, etc.

Why all the fuss about journalists and arrests at conventions? You can read this story about journalists arrested in the 2004 Republican National Convention in New York City.

Hopefully we won’t see a repeat of that mess. But whether you are credentialed media, traditional, student, freelance, blogger, be aware of the potential for problems and be prepared with a way to deal with it. Above all, remain calm and professional- annoyed cops often go overboard and being legally right doesn’t matter much if you miss the story because you are stewing in a jail cell.

Here are the hotline numbers:

Democratic Convention Hotline: (303) 376-2404

Republican Convention Hotline: (651) 238-1884

More info from the flier:

• The MEDIA HOTLINE should not be used for disputes over credentials or problems unrelated to your news coverage of the convention. You may call the Reporters Committee’s regular hotline, (800) 336-4243, if you have other credentialing or access issues.
• Non-credentialed reporters and protestors who are arrested may not use this MEDIA HOTLINE, but may instead contact the People’s Law Project of the National Lawyers Guild at (303) 830-0277.
• Questions about civil rights and liberties issues will be fielded by the American Civil Liberties Union of Colorado at (303) 777-5482, ext. 118.

Free speech and high school newspapers

A high school student in California studied flag burning in his American government class. So he wrote an editorial about it for the student newspaper, and the newspaper ran a photo of a flag burning. He thought it would make a good article on free speech.

The principal shut down the newspaper.

Student Press Law Center Report reports out that it is a violation of California state law for a student newspaper to be censored unless it is libelous, obscene, or incites students to break the law. In addition, it is illegal for administrators to retaliate based on student speech.

The Contra Costa Times reports that the bill applies to colleges only, and needs to be expanded to high schools.

If the bill doesn’t apply to high schools, it should. Public high schools are public entities and should be held to the highest standard of open and free press- especially when it comes to budding citizens who are barely learning to vote.

First of all, you don’t teach kids about the First Amendment and then stomp all over it when they try to exercise it. Second of all…. I don’t think this needs a second of all. It’s the kind of thing that makes me want to scratch my red-white-and-blue eyeballs out.

Who owns the Copyright to a Sporting Event?

The short answer- Nobody.

The long answer- It was the question the Second Circuit addressed in NBA v. Motorola, Inc., 105 F.3d 841 (2d Cir. N.Y. 1997). Motorola was selling hand-held pagers called “SportsTrax” which would display updated play-by-play information about the progress of the games. This was done without the NBA’s permission, and NBA sued for misappropriation.

Time for a little history lesson. Back in 1918, there was a case where a company called International News Service, was sued by the Associated Press. INS would read AP bulletins and then send that news by telegraph to its own customers, sometimes rewritten, and sometimes verbatim. So AP and the AP newspapers did all the work, and INS was trying to profit from it. Hello lawsuit. This case made it all the way to the U.S. Supreme Court.

An important part of the INS case was that it clarified that while a news article may be copyrighted, “the news as such, is not copyrightable.” BUT, the court ruled that “one who gathers news” may be said to have quasi-property rights in the fruit of that labor against his competitor. The injunction against INS was upheld, to the extent that they could not copy the news while it was still valuable (but after the freshness of the news died, there was no proprietary right to it). Note that this would never have prevented INS from going out and reporting on the same news, it just prevented INS from doing their news-gathering by reading the AP wire.

Back to the NBA case. It was this principle that NBA wanted to use against Motorola.

The Motorola court said that a “hot news” claim was still valid 80 years later but only under limited circumstances.

Specifically, a “hot news,” quasi-property claim on the facts of the news could be applied when:

• a plaintiff generates or gathers information at a cost;
• the information is time-sensitive;
• a defendant’s use of the information constitutes free-riding on the plaintiff’s efforts;
• the defendant is in direct competition with a product or service offered by the plaintiffs; and
• the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.

The Motorola court went on to rule that NBA did not have that kind of proprietary right on the facts of the sporting event. It went on to evaluate a more straightforward look at the copyright law:

“17 U.S.C.S. § 102(a) lists eight categories of “works of authorship” covered by the act, including such categories as “literary works,” “musical works,” and “dramatic works.” The list does not include athletic events, and, although the list is concededly non-exclusive, such events are neither similar nor analogous to any of the listed categories. (Motorola at 846).”

Basically, the sporting event was not a creative expression because they are not “authored.” In theory, sports have no underlying script. Further, the court elaborated that to allow copyright of a sports competition, then figure skaters, whose moves are orchestrated, could copyright their moves, such as the triple lutz, and prevent their competitors from using the same move and that would destroy competition in sports.

Keep in mind, that the broadcast of a sporting event is absolutely protected by copyright. And of course, a photo of a sporting event is protected by copyright. But the event itself is not, according to this case.

Friends, as the sports associations try more and more to become exclusive “content producers,” this could become a bumpier ride.