Google Book-Search Pact Draws Antitrust Scrutiny

The Department of Justice is looking into whether Google Inc.’s proposed book-search settlement with authors and publishers violates antitrust laws, according to people familiar with the matter.

In recent weeks, the DOJ has contacted Google and some of its critics to ask about the settlement, which is designed to give Google the right to include millions of additional works in its searchable archive of digitized books, known as the Google Book Search service, these people say.

A spokeswoman for the Department of Justice declined to comment. Representatives for the Association of American Publishers and the Authors Guild did not return requests for comment.

Whether the Justice Department would seek to block the settlement, which is pending court approval, remains unclear. The investigation is Google’s second tangle with the Justice Department in the past year. Last year, Google was forced to abandon an advertising agreement with Yahoo Inc., after regulators said it would sue to stop the deal on the grounds that it would give Google too much control over the online advertising market.

The settlement, unveiled in October, seeks to resolve a class-action lawsuit that stems from cases filed by the Authors Guild and the Association of American Publishers in 2005 to stop Google from scanning books and making them searchable online. The lawsuit, filed in the U.S. District Court for the Southern District of New York, alleged that Google’s book search project violated copyrights.http://online.wsj.com/article/SB124095639971465549.html

Digital photography complicates issue of "fair use."

The Wall Street Journal – Technology makes it easy to lift parts of someone else’s music, video or other digital creations, tweak it, and call the result one’s own. This usually causes no harm, but the case of a photo-turned-poster of Barack Obama is a reminder that just because technology makes something possible doesn’t make it right.

Until the digital age, the common view of copyright law was that it served overreaching corporations against creative little guys. Groucho Marx once generated publicity for the Marx Brothers film “A Night in Casablanca” by playing on this cynicism. Warner Bros. asked for the plot of the film, fearing it would spoof its Humphrey Bogart classic, “Casablanca.” Groucho Marx responded with a letter threatening a counterclaim against Warner for using the word “Brothers.

Now disputes are as likely to be little guy versus little guy, with artists and photographers split over the Obama case. One side defends poster artist Shepard Fairey, while the other cries foul on behalf of freelance photographer Mannie Garcia, who took a striking photo in 2006 while on assignment for the Associated Press of then Sen. Barack Obama gazing off to one side. Mr. Fairey discovered the photo on Google and used it, without crediting the photographer, to create the “Hope” poster. With Mr. Fairey’s permission, the Obama campaign widely used this image to support the candidate.

Earlier this year, New York gallery organizer James Danziger was planning a show featuring Obama campaign art, including the Fairey poster. He wondered whose photo had been used, but Mr. Fairey refused to say. Online searching found it to be Mr. Garcia’s photo. When the AP learned the poster was based on its photo, it sought standard licensing terms from Mr. Fairey, who refused. Instead, Mr. Fairey sued the AP, which has counterclaimed.

It’s not clear who wins as a matter of law. The concept of “fair use” is broad, but photographers argue that the lighting, angle and much of the art of the poster, which seems to have been digitally created, was in the photo. Mr. Garcia, a veteran war photographer, worked hard for the image. “I’m on my knees, I’m down low, and I’m just trying to make a nice, clean head shot,” he told National Public Radio. “I’m looking and waiting. I’m waiting for him to turn his head a little bit. . . . Boom. I was there. I was ready.”http://online.wsj.com/article/SB123716866712036921.html

Goggle Spends Millions Looking For Copyright Holders

The New York Times – Last month an e-mail message washed up at the offices of The Cook Islands News in the South Pacific. It was a request to place a half-page advertisement in the newspaper, which has a circulation of 2,500. The cost was $370.

“We were amazed — it came from out of nowhere,” the newspaper’s editor, John Woods, said in a telephone interview. “We are very skeptical of ads like that.”

Even more surprising was who was paying for it: Google.

Google, the online giant, had been sued in federal court by a large group of authors and publishers who claimed that its plan to scan all the books in the world violated their copyrights.

As part of the class-action settlement, Google will pay $125 million to create a system under which customers will be charged for reading a copyrighted book, with the copyright holder and Google both taking percentages; copyright holders will also receive a flat fee for the initial scanning, and can opt out of the whole system if they wish.

But first they must be found.

Since the copyright holders can be anywhere and not necessarily online — given how many books are old or out of print — it became obvious that what was needed was a huge push in that relic of the pre-Internet age: print.

Under the proposed settlement, reached on Oct. 28 and still subject to court approval, there must be an effort the court finds “reasonable and practicable” to find authors and publishers — especially copyright holders of so-called orphan books, which are still in copyright but long out of print. So the task means placing at least one ajavascript:void(0)dvertisement in every country in the world.

One reason courts have required such heroic efforts to reach the people covered by a settlement is that unless parties opt out of the settlement, they are automatically opting in. The least that must be done, the argument goes, is let those affected know about it.http://www.nytimes.com/2009/03/04/books/04google.html

Supreme Court to Revisit a Case on Breach of Copyright

WASHINGTON — The Supreme Court agreed on Monday to revisit a case it decided eight years ago in favor of freelance writers who said that newspapers and magazines had committed copyright infringement by making their contributions available on electronic databases.

In that 2001 decision, New York Times Company v. Tasini, the Supreme Court seemed to contemplate and even encourage a settlement of the case, saying that the parties “may enter into an agreement allowing continued electronic reproduction of the authors’ works.”

After the Tasini decision, many freelance works were removed from online databases. Most publishers these days require freelance writers to sign contracts granting both print and online rights.

In an effort to settle the original copyright infringement claims, authors, publishers and database companies undertook four years of what they said were intensive, complex and costly negotiations. In the end, the defendants agreed to pay $18 million for a global settlement of all claims in four class actions to two groups of authors — those who had registered copyrights in their works and those who had not.

The second group was by far the more numerous. But the federal copyright law allows suits claiming copyright infringement only after works are registered.

In November 2007, a divided three-judge panel of the United States Court of Appeals for the Second Circuit, in New York, declined to approve the settlement, saying it did not have jurisdiction over the claims of the second group of authors.

The question for the Supreme Court this time is whether courts may approve global class action settlements that include claims they would not have had jurisdiction to decide.

Many authors supported the settlement, but some objected. The objectors said that authors who had not registered their works were treated unfairly because their share would be reduced if there was not enough money to go around.

But all concerned urged the court to hear the case, Reed Elsevier v. Muchnick, No. 08-103.http://www.nytimes.com/2009/03/03/business/03bizcourt.html

New Rules Push Colleges to Rethink Tactics Against Student Pirates

Colleges are about to be told how to fight piracy. They have deployed various tactics over the years to deter illegal file sharing, usually of commercial music and movies, by their students. But this month, the U.S. Department of Education will begin crafting regulations that specify strategies. That prospect is making some campus officials wonder if plans they have already invested in will pass muster.

The regulations will interpret three antipiracy provisions in the Higher Education Act renewed by Congress last year. The law requires colleges to inform students of institutional and criminal penalties for unauthorized file sharing, to “effectively combat” copyright violations with “a variety of technology-based deterrents,” and to offer alternatives to illegal downloading. Because the requirements are simultaneously strict and vague, colleges are attentively awaiting their interpretation.

Many are in good shape. “To a large extent, the Higher Education Act codifies what colleges are doing already,” says Steven L. Worona, director of policy and networking programs for Educause, the college-technology group. About 90 percent of four-year colleges and universities have policies to deter illegal file sharing, according to an October survey by the Campus Computing Project, which tracks information-technology trends.

Still, community colleges and other institutions that largely escaped the Recording Industry Association of America’s mass lawsuits against students accused of violating copyrights may not have developed those policies as fully. And some that do have policies are unsure whether their approaches will comply with the new rules.http://chronicle.com/weekly/v55/i23/23a01901.htm

Color This Area of the Law Gray

Post courtesy of Stephanie Toth

The Wall Street Journal – Beauty, it is often said, is in the eye of the beholder, and so might be copyright infringement. Artist Richard Prince never denied that he made use of some photographic images he found in a 2000 book by Patrick Cariou called “Yes Rasta,” documenting the community of Rastafarians the French photographer encountered in the mountains of Jamaica, for collage paintings that were exhibited last fall at New York’s Gagosian Gallery and reproduced in a book published by Rizzoli.

The question is whether Mr. Prince’s use of these images was “transformative” — borrowing in the process of creating something entirely new — or just stealing. A lawsuit filed by Mr. Cariou in New York District Court in late December against the appropriationist Mr. Prince — as such artists are known — likely will be one more front in the battle over what constitutes copyright infringement in these days of “sampling” and point-and-click downloading.

According to Mr. Cariou’s lawyer, Daniel Brooks, Mr. Prince scanned several of Mr. Cariou’s images of people and landscapes into his computer and printed them directly onto his canvases. He then defaced them in limited ways (placing an electric guitar in one Rastafarian’s hands and daubing paint onto the face, for instance), as well as adding other elements to the paintings. Mr. Prince “didn’t transform these photographs — he just used them,” said Mr. Brooks. But it is Mr. Prince’s contention that he took the photographer’s images as raw material — the way an assemblage sculptor uses “found objects” — in order to create something that not only comments on the photographs’ previous meaning but also gives them new meaning. Mr. Brooks noted that Mr. Prince could have avoided the problem altogether by traveling to Jamaica to take his own photographs for his canvases, but the entire point of Mr. Prince’s art is commentary on images that already exist in the world.

Other artists have stumbled into this gray area of the law. “It’s meant to be a gray area, because the copyright law is designed to be flexible,” said John Koegel, a lawyer who successfully represented artist Jeff Koons in an infringement lawsuit by a commercial photographer, Andrea Blanch, in 2005. “The law states that the use of a copyrighted image is transformative based on the ordinary lay observer’s sense of if the new work is different and how different it is. It is very much of a visual thing, and there is no bright line that artists can go by.”http://online.wsj.com/article/SB123319795753727521.html

Fix for Music Piracy: Tack a Fee on Broadband

Douglas, the capital of the Isle of Man, which wants all broadband customers to pay a fee in exchange for rights to music online.

The New York Times – PARIS — Two generations ago, the Isle of Man gave the world the Bee Gees. Now it says it wants to help the wounded music industry stay alive.

The island, a rainy outpost in the Irish Sea, is promoting an offbeat remedy for digital piracy, which the music labels blame for billions of dollars in lost sales. Instead of fighting file-sharing, the local government wants to embrace it — and it is trying to enlist a skeptical music industry’s help.

Under a proposal announced this month, the 80,000 people who live on the Isle of Man would be able to download unlimited amounts of music — perhaps even from notorious peer-to-peer pirate sites. To make this possible, broadband subscribers would pay a nominal fee of as little as £1, or $1.38, a month to their Internet service providers.

Ron Berry, director of inward investment for the Isle of Man, said the music industry needed radical approaches because of the “utter failure” of its current strategies. Global music sales have fallen nearly 25 percent since 2000.

Despite nearly a decade of campaigning against piracy, the industry’s international trade group estimates, 95 percent of tracks distributed online are pirated, generating no revenue for the recording companies.

“A lot of people in the business are concerned with how much money they are losing, but not with how much money they could make,” Mr. Berry said.

Under his proposal, the money collected by the Internet providers would be sent to a special agency that would distribute the proceeds to the copyright owners, including the record labels and music publishers. They would receive payments based on how often their music was downloaded or streamed over the Internet, as they now do in many countries when it is performed live or on the radio.http://www.nytimes.com/2009/01/26/business/worldbusiness/26music.html?partner=permalink&exprod=permalink

Apple Drops Copyright Protection on Songs

The New York Times – SAN FRANCISCO — In moves that will help shape the online future of the music business, Apple said Tuesday that it would remove anticopying restrictions on all of the songs in its popular iTunes Store and allow record companies to set a range of prices for them.

Beginning this week, three of the four major music labels — Sony Music Entertainment, Universal Music Group and Warner Music Group — will begin selling music through iTunes without digital rights management software, or D.R.M., which controls the copying and use of digital files. The fourth, EMI, was already doing so.

In return, Apple, whose dominance in online music sales gives it powerful leverage, agreed to a longstanding demand of the music labels and said it would move away from its insistence on pricing all individual song downloads on iTunes at 99 cents.

Instead, the majority of songs will drop to 69 cents beginning in April, while the biggest hits and newest songs will go for $1.29. Others that are moderately popular will remain at 99 cents.http://www.nytimes.com/2009/01/07/technology/companies/07apple.html?partner=permalink&exprod=permalink

Google Scans Books, Puts Them Online

The New York Times – MOUNTAIN VIEW, Calif. — Ben Zimmer, executive producer of a Web site and software package called the Visual Thesaurus, was seeking the earliest use of the phrase “you’re not the boss of me.” Using a newspaper database, he had found a reference from 1953.

But while using Google’s book search recently, he found the phrase in a short story contained in “The Church,” a periodical published in 1883 and scanned from the Bodleian Library at Oxford.

Ever since Google began scanning printed books four years ago, scholars and others with specialized interests have been able to tap a trove of information that had been locked away on the dusty shelves of libraries and in antiquarian bookstores.

According to Dan Clancy, the engineering director for Google book search, every month users view at least 10 pages of more than half of the one million out-of-copyright books that Google has scanned into its servers.

Google’s book search “allows you to look for things that would be very difficult to search for otherwise,” said Mr. Zimmer, whose site is visualthesaurus.com.

A settlement in October with authors and publishers who had brought two copyright lawsuits against Google will make it possible for users to read a far greater collection of books, including many still under copyright protection.

The agreement, pending approval by a judge this year, also paved the way for both sides to make profits from digital versions of books. Just what kind of commercial opportunity the settlement represents is unknown, but few expect it to generate significant profits for any individual author. Even Google does not necessarily expect the book program to contribute significantly to its bottom line. http://www.nytimes.com/2009/01/05/technology/internet/05google.html?partner=permalink&exprod=permalink

New Machines Cheaply Reproduce Books On Demand

Editors Note: Another advance in technology poses challenges for copyright holders – this time it is not music being downloaded, but easy, quick publishing of books for 1 cent per page. – MT

Chronicle of Higher Education – If you wonder what the future of book publishing might look, smell, and sound like, head north to the University of Alberta’s bookstore in Edmonton. There a $144,000 machine is churning out made-to-order paperbacks at a cost of a penny a page.

It’s the Espresso Book Machine, which converts digital files into bound books, one order at a time, in under 15 minutes. The contraption smells like glue, looks like a couple of copy machines attached to a cabinet, and emits its share of clunking and thunking sounds, said Jacqui Wong, the machine’s operator, who calls it her “baby.”

At least seven Espressos are in operation, several on college campuses. Instead of publishers’ printing thousands of books and hoping some of them will find buyers — and losing money when they don’t — the machine prints on demand. Customers can submit an order for, say, an old textbook or a copy of a 19th-century classic, and walk out with it several minutes later.http://chronicle.com/weekly/v55/i15/15a00103.htm