Digital Economy Bill passes in UK- without orphan works provision

Busy day. The controversial Digital Economy Bill has apparently passed in the UK. The good news is that the controversial orphan works provisions in the bill were removed, due primarily to the efforts of photographers. YEAH photogs.

Read about it here.

My previous post on the controversy, and photographers efforts is here.

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.

Photographers Respond to British Orphan Works bill

There has been some gnashing of the teeth regarding the proposed Digital Economy Bill which is being proposed in the United Kingdom. A British photography group has responded and recently posted their briefing paper. This is a great argument for the problems with an orphan works bill.

My understanding from congress is that there is no Orphan Works proposal at this time, but I have a feeling that it will be dropped on us with little warning when it is introduced, so it is great to have these arguments sorted out. The British comments are well thought out and useful for any OW debate.

Find them here: http://copyrightaction.com/blog/epuk-lords-briefing-paper

Thanks to those in GB who are fighting for rights that photographers throughout the globe value.

-A

Shepard Fairey Drama Twist

Sometimes a lawsuit is just a lawsuit.

But sometimes it is a soap opera. Sometimes, a lawsuit is an attempt to shape the laws, an attempt to get the public to wake up and take sides. And sometimes there is a cliff hanging twist and turn every time you think it is safe to turn off the internet. Fairey v. Associated Press, is all of the above, and the case has all of the elements of a good drama (except sex): politics, money, theft, lies, and art.

In the latest twist, Fairey has admitted that he falsified evidence and attempted to destroy other evidence. AP has also issued a statement, stating that the Fairey’s lawyers are attempting to withdraw from representation of Fairey. To them, I say: “what did you expect from a thief.”

Bad news for the copyleft- their “poster-child” for fair use has almost certainly ruined his case. There is nothing like lying to the court and violating discovery to remove all sympathy a judge might have for your case. Furthermore, he could be sanctioned to the point that he looses his primary defense. No matter what happens, he looks very guilty.

On Another Note:

When researching this news, I noticed an interesting article from the EFF that explains how as a part of the countersuit, the AP is also making a claim under the Digital Millenium Copyright Act for stripping the metadata from the photograph (see item 137 and 182 of the counterclaim document). I was not aware of this, but this will be another interesting element of the case to follow closely if this does not settle. Removing metadata is a violation of the DMCA. And yet nearly every newspaper website in America removes metadata from photos that it publishes. I have long criticized this practice- it creates orphans. But if AP wins on the issue of removing the metadata, media lawyers will have to wake up about the practices of news organizations relating to preserving metadata.

On Yet Another Note:

As I mentioned, this case has many twists and turns. Few legal posts I have seen evaluate the Mannie Garcia claim that he is the rightful copyright holder of the photograph. Here is one great article about it, though.

I have chart on work for hire that I created earlier this year. Without knowing more facts about Garcia and his arrangement with AP, it is hard to work through it, but you might find it useful.

Interesting Related Documents:

Fairey’s Initial Complaint

AP’s Answer and Countersuit

Fairey’s motion to amend the claim (with the details about Shepard Fairey’s change in story)

Mannie Garcia’s Motion for intervention.

More documents from the case.

Coaliation against Google Books settlement.

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

The copyright of “Happy Birthday”

Happy Birthday Ladies! Did you get a performance license for that song?

Did you know that someone claims ownership to the copyright to the song “Happy Birthday to You”?

It was referenced in the dissent of a well-known copyright case, Eldred v. Ashcroft.

In honor of the end of law school finals, here is some light summer reading for you.

A legal scholar did some digging and found out some interesting facts. Digging deeply into the authorship of the lyrics and the melody, technical legal issues, evidentiary issues and policy issues, the author provides a logical look at the facts of a song whose music was written in 1893, but was combined with lyrics and published in 1935.

So what is the answer- as in many legal issues, it’s complicated. I won’t spoil the ending for you, you can read the paper yourself. Reading like a soap opera for copyright nerds like me, it is not only a very interesting tale, but a great look at the history of copyright law.

Ultimately, until tested in court, we won’t have a definitive answer, and no one seems likely to challenge it (the article addresses why). In the mean time, the song earns over $2 million in licensing revenue every year.

Find the article at this link.

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

Orphan works dead? Don’t be so sure.

It’s amazing how fast unsubstantiated news travels. Many bloggers have been reporting that the Orphan Works Bill is dead. This seems to be based on a blog article in Wired, who quotes unnamed lobbyists.

The blog post states that the bill passed the Senate and then landed dead on arrival in the House. In fact it was referred to the Judiciary Committee where it still can be agreed to and presented to the House. If you think the House is too busy, remember that the Senate was also busy dealing with the economy on Friday.

Here is the status of the Senate Bill. As of this post, it has been referred to the House Committee on the Judiciary. It is up to them whether they will abandoned their previous bill H.R. 5889 in favor of this one, or wait to start over next year.

Even though members of the House Judiciary Committee may not favor the Senate Bill, they are under enormous pressure from lobbyists to pass the Senate Bill.

This means that the bill is not dead. It may be “less likely to succeed,” but I am not going to start sleeping about this issue. “Not likely” and “dead” are two different things.

P.S. If you live in San Antonio, or Austin, or other Texas cities in District 21 (which is a poster child for gerrymandering), your congressman might be Lamar Smith, a co-sponsor of the house bill. You voice really counts. He, like every other House Rep., is running for re-election. He is being pressured to pass the Senate Bill and needs to know that his constituents don’t want it.

Orphan Works Alert: If you thought the Senate was busy saving the economy….

Think again.

Yesterday the Senate passed the Shawn Bentley Orphan Works Act. In a time when our nation is in financial crisis, this bill is a threat to small business owners (photographers and artists). A similar bill was pending in the House of Representatives that had more protections for creators, but the Senate has forwarded their version to the House.

What now?

Now we have to target the House of Representatives. We don’t want the House to adopt the Senate version, and we don’t want the House to pass a version that doesn’t have better protections for photographers.

A REALLY easy way to help let your representative know how you feel about this bill is to use this automatic letter generator.

In addition, there is a letter designed for photojournalists (although it is not updated to reflect the news of today). And other letters that you can choose from, if you want to be picky.

It is really urgent for photographers to do this if we want to have an effect. A strong pro-orphan works lobby is hard at work sending faxes, phone calls and emails to their representatives. We must do the same.

Finally, keep an eye on what the House is considering by following the Daily Leader (its a long list, but you can search “orphan” within the page). If you see an orphan works bill on the calendar, call everyone you know.

I wrote an extensive article explaining Orphan Works for the August News Photographer magazine. A pdf of the article is in the previous post.