Court rejects Google Books settlement

[Kali Yuga]

Originally Posted by Elfwreck

If your work isn't worth $2,000 for 20-40 years of exclusivity, it doesn't need to be renewed....

So, if an author publishes 10 short stories in a year, and they remain popular more than 20 years later, she has to shell out $20,000 and hope the Copyright Office doesn't screw up the renewal in order to protect her revenues?

What about photographers? Even back in the days of film, a photographer could easily submit 2,000 images per year to a stock agency. Those images can easily hold commercial value for 30 years. After year 20, should she be required to pay $4 million every year to protect her intellectual property? (And yes, photos can still produce revenues after 20 years.)

What if I want to use copyright laws to enforce free distribution, but bar any and all commercial uses? I can't rely on public domain to do that, since with PD anyone is allowed to use the work for anything, including commercial uses. Do I now need to plunk down $2000 to prevent other people from making money off of my work?

Let's say I'm an author. I publish a book on Smashwords; I price it at $1 per copy and it earns me $100 a year, all the way out to year 20. At that point, should I invest every penny I earned on that book into a registration fee? And how should I feel, if I choose not to renew the copyright, and some Hollywood studio takes the book, doctors it up and makes a huge movie out of it? I've lost my copyrights, so I've lost out on any possible royalties or revenues.

Yet again, automatic copyright protects the "little guy" -- the independent artists who are cranking out a ton of the work. Orphaned works are not such a huge problem that fixing this requires violating the Berne Convention and placing onerous and expensive burdens on artists, or rolling back the clock to one of the worst aspects of previous copyright incarnations.

Originally Posted by Elfwreck

If it doesn't involve shortening copyright, we're going to have a growing digital split between corporate copyright interests and individual non-commercial use.

Not really.

If an artist wants to release or tolerate non-commercial uses of their IP, absolutely nothing about copyright stops that -- in fact, copyright facilitates it.

Originally Posted by Elfwreck

Copyright infringement penalties are absolutely ridiculous when applied to individuals, and most people who look at the cases agree--there's no way that uploading a couple-dozen songs is a couple-million dollars worth of damage to anyone.

Except the juries that repeatedly nailed a certain infringer with huge fines.

Originally Posted by Elfwreck

Several clubs have now declared that "open mic night" can only allow original songs because of copyright hassles. This is... not helping anyone.

It helps the composers who write the songs, since about 90% of the ASCAP/BMI fees are paid out as royalties. And yes, making sure an artist gets paid royalties, if the artist chooses to collect such payments, is one major purpose of copyright.

In this case, the clubs don't want to pay ASCAP and BMI fees. From what I can tell, they charge the establishment $35 each for the licenses of a live music performance, but $0 if they have permission (e.g. a band plays original material). So if they have a cover band -- or a band that plays one cover -- they lose an extra $70 for the night. These agencies have annual caps on the fees as well, by the way.

The costs are not always trivial, but that's just a part of doing business. The fact that the club isn't happy about ASCAP/BMI fees does not give them a moral justification to get what they want for free.

[GA Russell]

The issue of photographs is often brought up here. I don't see any reason for books and photographs to be subject to the same rules.

Since we are philosophizing about what a new copyright law might look like, I think we can reasonably imagine what it might look like for books, without consideration for the different issues faced by photographers (whom I would recommend would get their own law).

[GA Russell]

Originally Posted by Kali Yuga

Orphaned works are not such a huge problem that fixing this requires violating the Berne Convention...

Au contraire, I think the premise of most of these discussions here is that orphan works (combined with lengthy copyright terms) are a huge problem.

[SleepyBob]

Originally Posted by Kali Yuga

What about photographers? Even back in the days of film, a photographer could easily submit 2,000 images per year to a stock agency. Those images can easily hold commercial value for 30 years. After year 20, should she be required to pay $4 million every year to protect her intellectual property? (And yes, photos can still produce revenues after 20 years.)

What if I want to use copyright laws to enforce free distribution, but bar any and all commercial uses? I can't rely on public domain to do that, since with PD anyone is allowed to use the work for anything, including commercial uses. Do I now need to plunk down $2000 to prevent other people from making money off of my work?

Let's say I'm an author. I publish a book on Smashwords; I price it at $1 per copy and it earns me $100 a year, all the way out to year 20. At that point, should I invest every penny I earned on that book into a registration fee? And how should I feel, if I choose not to renew the copyright, and some Hollywood studio takes the book, doctors it up and makes a huge movie out of it? I've lost my copyrights, so I've lost out on any possible royalties or revenues.

Interesting hypotheticals, and I think it comes down to what you want copyright to accomplish. I see the goals of copyright (in my mind) as two-fold:
1. Encourage creativity by protecting the rights of the content creator for a reasonable time. In order to invest significant time into a creative effort, I want to know that if my book sells well, that I won't suddenly have five competitors selling copies of my book that I don't get paid for. And if it gets turned into a movie, it is done after paying me for the right to use my creative effort.
2. Encourage creativity by releasing the book into the public domain after a suitable period. Then we can have new efforts building on existing works: Pride and Prejudice and Zombies, or a special illustrated version with hundreds of pictures.

Both of these can be satisfied, even with much shorter copyright terms. And having a renewal term and charging more than a nominal fee for it enhances #2, while still allowing financial gain in #1 for works that continue to be profitable for the creator.

In the case of your photography example, do you expect to earn more than $4M from the photos you took 20 years ago? If so, by all means, renew your copyright. If not, renew the handful that are worth the fee, and go out and take some new photos that will be protected for the next 20 years.

If you want to enforce no commercial uses of your work, then you decide whether that is worth $2000 to you. Again, part of the tit-for-tat of copyright is that in return for exclusive rights for a limited time, you give up your exclusive rights when the copyright expires. And that is something that creators will know up front.

For the 100 books a year author, it probably isn't worth it to him financially to renew. And that's not necessarily bad. If he is depending on on-going revenue for more than 20 years, then he will know up front that he had better write more than one book in his lifetime, just like patent-holders know that they won't be able to continue to profit from licensing agreements when their patents expire. If he thinks his book could be made into a giant movie, then gamble and renew the copyright. Or let it expire and let the movie be a giant advertisement for his other books.

I agree, it wouldn't the same world as we live in with Life+70 copyrights, or whatever, and it may force some hard decisions, but it certainly isn't unworkable or automatically unfair.

[Greg Anos]

Originally Posted by Kali Yuga

Yes, different in a way that makes registration a total unworkable nightmare.

The US Copyright Office currently has an 18-month backlog -- for optional copyright registration. If registration becomes mandatory, the CO would be overwhelmed.

In the digital era, massive amounts of content is generated and distributed instantaneously. A photographer can crank out 500 images in a day -- and the client will want the images within hours. A blogger can post multiple entries a day, and will want to post immediately. 275,000 books were published in the US in 2008.

If registration was required, the volume of data they would need to host and index would be tremendous. And who's going to fund it? Do you genuinely believe that Congress will appropriate $500 million to the Copyright Office and increase their annual spending to build a registration website, when they are cutting funds to everything in sight?

And of course, a prospective screenwriter can send around his work to dozens of studios, and revise it during the process, without worrying about registering each and every draft at $35 a pop, or waiting a year to get the confirmation of the registration.

Automatic and immediate copyright registration is a vital right for content creators in the digital era -- and that doesn't mean just the big companies, it also means the small or independent artists who are actually doing the creative work. They aren't "clinging to the status quo" for its own sake, they're doing it because requiring registration will impose an onerous burden on the way they earn a living.

I do not see how what amounts to putting a small percentage of work into the public domain ahead of schedule -- or worse, granting Google an exclusive monopoly over those works -- justifies screwing over the content creators and increasing the bureaucracy by several orders of magnitude.


On a side note, let's keep in mind that a major problem with what Google was trying to accomplish did NOT involve orphaned works. Rather, it affected out of print books, where the copyright holder was still alive and aware of his or her work. What Google did was sweep up every book in a given library in its scanning project, and force the authors to opt out -- and if they did not opt out by a certain date, they were in whether they liked it or not. Google made zero effort to track down or find the copyright holders, did not allow any proofreading or review of the scanned book, and did not allow any sort of negotiation on rates. The Settlement also would have given Google an effective monopoly over the orphaned works -- hardly an ideal situation.

Nor, ultimately, does the Author's Guild have the authority to settle in the first place. They don't hold the copyrights, thus they can't give away someone else's rights in a legal settlement.

Like it or not, this is a job for Congress; and the solution is not going to involve shortening copyright, or requiring registration, and will need to protect the artists who are alive and working.

Kali, if you want to treat copyright as property, then you have to do the sort of things that make property legal in most societies. Like registering ownership. You do it with land, and many chattels. (You want to claim something is stolen? You HAVE to prove ownership.) Not enough resources to keep the processing going? Charge more to register.

Copyright is a economic construct. And as such, it costs. The refusal to pay for registering a copyright is just another form of free riding, just like I.P. piracy. Only A. it's legal and B. It lets you play the "copyright lottery" for free. You want to play the "copyright lottery" - pay for the ticket!

Not everything I (or anybody else) do or say is worthy of copyright. I'll pay for the items I think have value. If I'm wrong, <shrug>, I lose. But I'm required to subsidized by the public for my lottery tickets. And as teh public, I'm annoyed that people expect this sort of subsidy...

[Kali Yuga]

Originally Posted by GA Russell

Au contraire, I think the premise of most of these discussions here is that orphan works (combined with lengthy copyright terms) are a huge problem.

Google itself says that only 10% of the books caught in its scanning dragnet are orphaned works. The rest are merely out of print.

Most of those titles are basically gathering dust in university libraries, and will eventually go into public domain.

[Kali Yuga]

Originally Posted by SleepyBob

Both of these can be satisfied, even with much shorter copyright terms....

I partly agree, in that to me life + 50 is ideal.

However, any renewal term will increase the costs and complexities for artists, publishers, and government agencies alike.

In terms of the examples, I think you're missing the extremity of Elfwreck's $2000 registration. It would likely bankrupt creative professionals who try to keep up. How does what amounts to a "Copyright Tax" actually encourage people to create?

There is no question in my mind that automatic copyright is beneficial for and helps promote the arts, and that registration just makes it harder to do the work.

[Elfwreck]

Originally Posted by Kali Yuga

In terms of the examples, I think you're missing the extremity of Elfwreck's $2000 registration. It would likely bankrupt creative professionals who try to keep up. How does what amounts to a "Copyright Tax" actually encourage people to create?

There is no question in my mind that automatic copyright is beneficial for and helps promote the arts, and that registration just makes it harder to do the work.

My extreme reg costs presumes automatic registration for an initial period. 26 years was enough to encourage a lot of works being made; I don't expect a lot of authors would give up on writing if they thought they'd only get two and a half decades of control of their works.

And I'm also open to the idea of $20 reg after that initial period; any required registration is going to mean most works wind up in the public domain. The $2000 is a matter of penalizing keeping works away from the public--it means that authors, artist & photographers would have to figure out which of their works are financially viable for another 20-40 years, and pay for the right to have a monopoly on exploitation. Photographers would have the option of registering pictures in a collection rather than individually; they could certainly register "best photos taken in the 90's" as a set, the way authors are free to register "collected short stories" instead of each one singly.

[kennyc]

Required registration is dumb. The law is correct as it is in that something created is the property of the creator.

Now as far as the duration and transferability etc -- that could potentially do with some changes as well as specifics related to digital issues.

[Elfwreck]

Originally Posted by kennyc

Required registration is dumb. The law is correct as it is in that something created is the property of the creator.

That works fine, as long as he's the only one with access to it. If he wants to license and restrict other people's use of it, registration may be necessary.

If I build swing in my back yard, I don't need to register anything. If I build it on public land, out of public materials (nobody owns language), and I want to limit who can use it, I'm going to have to file something with an office somewhere.

I think requiring registration initially is silly. I think that continued commercial exploitation should require registration; works with no identifiable owner should fall into the public domain quickly, and there should be an acknowledgment that these works are built out of a common, shared heritage, and using materials available to everyone, and therefore locking them away from the other people who contributed to their creation--the ones who taught the author how to read & write, the ones who manufactured the cameras that made the photographer's art possible, the ones who sell the books that make income possible--should be sharply limited.

If you can't make your fortune in 50 years, another 50 won't help. If you can, you can make another fortune with another creative work; you don't need to lean on that one your whole life.

[Kali Yuga]

Originally Posted by Ralph Sir Edward

Kali, if you want to treat copyright as property, then you have to do the sort of things that make property legal in most societies. Like registering ownership.

Does that mean I need to register my clothing, too? How about my pencils?

There is a lot of property that does not require registration in order to receive legal protection, including goods whose theft would be felonious.

Originally Posted by RSE

Copyright is a economic construct. And as such, it costs.

Actually I'd say it is a social construct, much in the same way as any other political rights bestowed upon, demanded by, or accepted by a nation.

However, more to your point: The current structure of copyright already pushes many of the costs onto the copyright holder.

The police do not proactively search for copyright violations, that's up to the copyright holder. If an infringement is found, a federal prosecutor isn't going to step in and take over the case; it's going to be a civil proceeding, where the allegedly aggrieved party has to pay legal fees.

Your idea of copyright as a lottery is patently absurd, by the way.

[Kali Yuga]

Originally Posted by Elfwreck

I think requiring registration initially is silly. I think that continued commercial exploitation should require registration...

Why? Because there is a small slice of work that you want to go into public domain ahead of schedule?

Works, I might add, that would have totally slipped into obscurity if ebooks had developed, say, 50 or 75 years later?

Originally Posted by Elfwreck

....there should be an acknowledgment that these works are built out of a common, shared heritage (etc etc).

There is nothing about the formal structure of copyright and public domain that requires an artist acknowledge a "shared heritage."

Let's say a Chinese artist, who is extensively aware of Chinese landscape painting and ignorant of Western art, moves to Los Angeles and produces work. Those paintings are still protected by copyright, and go into the public domain when copyright expires.

Heck, the artist doesn't even need to leave China; thanks to international treaties, his copyrights are automatically respected in most nations. Without needing to fill out a bunch of paperwork.

Or, let's say I'm a political radical raised in the US, and I despise Western society. My art in turn reflects my contempt for whatever cultural elements I share with other Americans. My work is still protected by copyright and goes into the PD when copyright expires.


Further, copyright covers specific expressions rather than ideas. Artists are clearly capable of influencing one another, even when their work is still protected by copyright.

The public domain is, rather specifically, the removal of copyright protection. That's it. Nothing about it requires or enforces "acknowledging a shared heritage."

Originally Posted by Elfwreck

If you can't make your fortune in 50 years, another 50 won't help. If you can, you can make another fortune with another creative work; you don't need to lean on that one your whole life.

So yesterday it was 20 years, now it's 50? I guess that's progress.

But the reality is, it's just a mechanism to get work into PD earlier than usual. Again, not worth the problems it will inflict on content creators, or the added bureaucracy.

[charleski]

Originally Posted by Kali Yuga

Libraries already have an exemption for archival uses. You as an individual are also allowed to format shift. However, you are not allowed to redistribute that content without the permission of the rights holder.

Under US law, you're referring to section 108. This only applies to recognised libraries open to the public or to anyone who desires to research the material, so it won't help you when you find that stack of newsprint in your attic (and, BTW, it does allow them very limited redistribution rights).

Format-shifting is covered in the US only under the fair-use defense, and doesn't apply to other countries.

Anyone seeking statutory damages in the US is already obliged to register. Other forms of IP such as trademarks and patents need to be registered to have any protection. Registration of copyright has been a central aspect of its legal framework since the Statute of Anne. If it wasn't onerous in 1708, I can't see why it should be onerous now. Objections to registration seem to be founded on little more than hysterical scare-stories such as the one you provide. There is no reason for it to be massively expensive or time-consuming, we have copious tools for handling and indexing data.

I think it might be reasonable to allow a limited initial period in which registration was not required (say 20 years), under the assumption that the author of the work is unlikely to abandon it so soon after creation. But any further protection, or any transferral of the copyright, should be registered. A lot of our current problems can be traced back to Victor Hugo's ill-considered crusade that resulted in the Berne Convention. The function of copyright is to provide a balance between private remuneration and public good, and that balance is currently not being achieved. We should not allow ourselves to be shackled by the mistakes of the past.

[SleepyBob]

Originally Posted by Kali Yuga

I partly agree, in that to me life + 50 is ideal.

However, any renewal term will increase the costs and complexities for artists, publishers, and government agencies alike.

In terms of the examples, I think you're missing the extremity of Elfwreck's $2000 registration. It would likely bankrupt creative professionals who try to keep up. How does what amounts to a "Copyright Tax" actually encourage people to create?

There is no question in my mind that automatic copyright is beneficial for and helps promote the arts, and that registration just makes it harder to do the work.

I don't think there is a right answer for copyright terms. Anything you choose is essentially arbitrary. If you use Life+X, a renewal term may be pointless. But if you want something less than Life, then a renewal process is to the advantage of copyright holders. It is only an additional cost to those who wish to extend their copyright, which is primarily those whose work continues to generate income. And they will happily jump through a small hoop to get that income to continue.

How does a "Copyright Tax" encourage people to create? I would say it isn't the tax itself, but the limited term. (The tax encourages works that don't continue to generate profits to enter the public domain, which is a separate benefit to society.) Here's the logic, as I see it (I'll use an author for simplicity):

1. The existence of copyright encourages me to write and publish a book, because it allows me the opportunity to profit from it and make a living.
2. Most of the profits from most books are realized in the first X years (say 20, or 50 even) after initial publication.
3. Therefore, a protection of X years instead of X+100 years (or anything longer than X) will still be sufficient protection to incent me to write and publish my book.
4. If I need continuing income beyond year X, then the fact that my copyright will expire encourages me to write another book in those X years.

One more analogy:
Insurance agents earn commissions by selling policies. Depending on the company, they may earn 10% of the premiums paid by the policyholder annually for the 10 years following the sale. Even if they make a bunch of huge sales in their first year on the job, they still have an incentive to sell (i.e. create) every year, because even though the 10 years of commissions made it worth it to them to work for the original sales, they still need income after the 10 years are up.

I don't claim that 20 years is the right term, or that $2000 for a renewal is the right price, but that something like 20 years plus 20 year renewal for a non-trivial fee is very workable for copyright holders and lets them be fairly compensated for their work, and has the additional benefit of greatly reducing the issue of out-of-print and orphaned works at the same time.

[Elfwreck]

Originally Posted by Kali Yuga

Why? Because there is a small slice of work that you want to go into public domain ahead of schedule?

I want the works that were released under 26+26 year copyrights to be held to that arrangement. I want back the content that was stolen from the public, the content we were contracted to receive after a set number of years. Everything produced in the US before 1954 should be in the public domain. Dealing with the later L+70 stuff is negotiable.

Works, I might add, that would have totally slipped into obscurity if ebooks had developed, say, 50 or 75 years later?

I have very little interest in pondering the amount of human art & culture that's vanished because nobody figured out how to record & transmit it. There's a lot; if circumstances were different, there'd be a lot more. I don't see how that's relevant.

There is nothing about the formal structure of copyright and public domain that requires an artist acknowledge a "shared heritage."

Let's say a Chinese artist, who is extensively aware of Chinese landscape painting and ignorant of Western art, moves to Los Angeles and produces work. Those paintings are still protected by copyright, and go into the public domain when copyright expires.

I don't see your point.

The Chinese artist, he didn't invent paint, did he? Didn't invent the concept of landscapes as art. Didn't invent paintbrushes, or canvas or parchment. Didn't invent a market for landscapes, or the concept that they were more suitable for hanging in public than pictures of naked ladies. He found a new way to use the tools and skills that other people created. He added his own individual flourishes to a long history of artistic methods. He shouldn't have indefinite control of what he made from others' contributions.

The purpose of the public domain is to acknowledge that cultural expression belongs to all of us, not just the people who record bits of it on paper or phonograph.