Photo groups file suit against Google

Well, several photo groups, along with some photographers, have filed suit against Google regarding their google books project.

I won’t repeat what has been said in the various articles. You can read about it:

In the New York Times;

On the ASMP website;

Read the complaint itself.

One thing I will say is that the recent Supreme Court ruling of Reed Elsevier v. Muchnik has paved the way for this case.

Here is why.

Many of the photographers covered  in the Google Books photographers class action suit have likely not registered their copyrights. This means that they could not bring suit themselves and still get statutory damages. But in the Muchnik case, the Supreme Court ruled that the court can still have jurisdiction over a copyright case in a class action, even if the members of the class covered by the settlement have not all registered their copyrights. Of course the google suit asks for statutory damages for each infringement, and a court is not likely to award statutory damages for infringements where the copyright is not registered. But getting a judgment and getting a settlement are two entirely different things. The way is now clear for a settlement.

Photographers should be aware of the danger of class actions suits. Google may get hit in the pocket book, but there is always a risk that photographers who aren’t in the original suit will not see much of the money. Here’s hoping that the photo groups don’t let that happen.

It’s photo week at the Supreme Court of the United States

Photographers should be paying attention to the Supreme Court this week…

Tasini continued…

Oral arguments were heard today in Reed Elsevier v. Muchnick. This case is connected to our old friend Tasini v. New York Times, which some say started the whole rights grabbing trends of the modern day newspaper contract. While this case won’t really have as much of an impact on photographers, it is interesting because of the connection. It involves the authority of the court over copyright cases and settlements when the rights holders haven’t registered their copyright. It also involves an enormous class of journalists. Here is a summary of the oral arguments (note to self: research why people keep hyphenating “freelancer”) and here is a transcript of the oral arguments.

If the court rules that a federal court cannot approve a settlement involving rights-holders who have not registered, it seems inevitable that this will affect the Google Books settlement.

The Dog-fight Video Case

In another case that is important to photographers, the U.S. Supreme Court heard oral arguments Tuesday about whether or not a law that bans visual depictions of cruelty to animals is a violation of the First Amendment.

U.S. v. Stevens is the first case ever to be prosecuted under a federal law that bans any “depiction of animal cruelty” if such cruelty is illegal in the place where the depiction is created, sold or possessed.

It has been many years since the Court found that the government interest in preventing child pornography was so great that it overrode any First Amendment rights of the child pornographer, a rather appropriate finding. By making the expressive act illegal, the motive for the abuse is diminished. Child pornography involves abuse of a child and the photography itself is abusive. The law is clearly narrowly tailored and serves a compelling government interest.

This law is not so well orchestrated. For example, the defedant, Stevens, was not involved in any animal abuse, he merely edited together footage that he obtained from others.

While well intentioned (many attacks on the First Amendment are), I think this law is certain to be struck down. First of all, I don’t believe that our government truly has a compelling interest in preventing cruelty to animals. If it did, much of the way our nation produces meat would be illegal (yes, I am a vegetarian). Second, the law is in no way narrowly tailored. There are many possibilities of perfectly legal activity that could get a person caught up in this law. And there are loopholes that would make illegal a video or photograph of something that was legal where it occurred (say bullfighting in Spain). I once photographed a ritual sacrifice of a sea turtle in a Fijian village. It was gross. It was brutal and cruel. But it was important to document. Those pictures could get me in trouble with the feds under this law.

If you don’t believe me, just take a look at the list of hypotheticals the justices posed to the attorneys in this case. The article in the New York Times says it all.

The transcript, full of hypotheticals, is here.

An article about the NPPA signing an amicus brief urging the court to hold the law unconstitutional is here.

One of my favorite things to listen to is a Nina Totenberg report on Supreme Court arguments. Her review of this weeks oral arguments is available here.

Coaliation against Google Books settlement.

Thanks Robert House for this link to an article about the growing coalition arguing against the Google Books settlement.

Google Books deadline extended

This post wast supposed to be a reminder about the opt-out deadline. However, I have read that the deadline has been extended to Sept. 4, and the hearing rescheduled for October 7. Of course that is no excuse for putting off your decision to the next last minute.

I am not advocating opting out or opting in. What I am advocating is reading the relevant information and making an actual decision. This is not like other class action settlments where all you lose is $5 from CD manufacurers. There are serious rights on the line here.

See my earlier post, or for that matter, google it!

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

Magazines on Google

“A Photo Editor” blogger Rob Haggart reports that Rodale, which is a magazine publisher,  is publishing back issues of the magazine on Google. They are available through Google Book Search. Here is a post about it on Google as well.

Haggart brings up the amusing point of what to do with magazines that basically write the same articles every month.

But he also brings up the question of whether the magazine is violating copyright a/la New York Times v. Tasini, which ruled that publishers did not have a right to relicense content to database without the contributor’s consent. (If in fact this is an arrangement between the publishers and google, and not an independent act by google)

Google Book search- includes magazines now

My opinion (as a student of the law, not as a judge or lawyer) is that this is permissible, based on the Tasini opinion, which by coincidence, we read last week in my copyright course.

The big difference between Google magazines and Tasini is that Tasini involved a large database where the articles could appear along with completely unrelated articles or alone. They didn’t appear in context, and so they didn’t qualify as permissible revisions.

In the current situation, the articles and photographs appear in context and I think they would be considered permissible revisions. Which is not to say that Google can post them without the magazine’s consent, but only that the magazines can authorize Google to post them without the photographer’s consent.

From Tasini:

“A newspaper or magazine publisher is thus privileged to reproduce or distribute an article contributed by a freelance author, absent a contract otherwise providing, only “as part of” any (or all) of three categories of collective works:

(a) “that collective work” to which the author contributed her work,

(b) “any revision of that collective work,” or

(c) “any later collective work in the same series.”

In accord with Congress’ prescription, a “publishing company could reprint a contribution from one issue in a later issue of its magazine, and could reprint an article from a 1980 edition of an encyclopedia in a 1990 revision of it; the publisher could not revise the contribution itself or include it in a new anthology or an entirely different magazine or other collective work.” H. R. Rep. 122-123″

I think if a photographer took this case to court, it would look more like Greenberg v. National Geographic. In that case, a court ruled in favor of the publisher’s right to republish a digital “revision” of the magazine without permission of the photographer. The magazine pages on the CD ROMs in the NGS case were presented in their original context, whereas the Tasini articles in the Lexis and other databases were not. Seems like a small difference, but it makes all the difference.

A good way to distinguish the two is to think about the good old microfilm days. If it looks like microfilm (you have to look at the entire page in context) then it is more like the Greenberg case. The Google Magazine search looks more like microfilm.

Keep in mind that each case has the potential to be different based on the facts, and a contractual agreement between a magazine and a photographer may change the equation. Also, if this is not an arrangement with the publishers, but is instead google going out on it’s own, it is a different kind of trouble.

Ironically, this google magazine search could be a major blow to Lexis Nexis. Why pay LN fees to search magazines when you can do it for free on Google.

Reminder: this should not be considered legal advice. See disclaimer.