Hot Issues in Copyright Ebooks, orphans, first sale … Massachusetts Library System Wednesday Jan 30, 2013 at 12:00 PM Presented by Mary Minow, J.D., A.M.L.S.

Hot Issues in Copyright

Ebooks, orphans, first sale …

Massachusetts Library SystemWednesday Jan 30, 2013 at 12:00 PM

Presented by Mary Minow, J.D., A.M.L.S.

LibraryLaw.com

• Legal information

• Not legal advice!

Legal Disclaimer

Agenda

Ebooks

Lending content

Litigation:Google Books, Hathi Trust

Other issues

E-reservesStreaming videos UCLA, YouTube

Changing formats

Lending ContentCopyright v. Licenses

Specific Copyright Exception:

FIRST SALE

Lending ContentCopyright v. Licenses

Specific Copyright Exception:

FIRST SALE

PART OF PUBLIC LAW

Lending ContentCopyright v. Licenses

Specific Copyright Exception:

FIRST SALE

PRIVATE CONTRACT overrides copyright law

(almost always)

What is Copyright FIRST SALE?

 Loan books

Sell used books

Copyright Law17 U.S.C. Sect. 109

Don’t take for granted! First Sale Doctrine in United States

• Public Lending Right

Euros © Will Spaetzel 2004. Some Rights Reserved. Attribution-NonCommercial-ShareAlike 2.0 Generic www.flickr.com/photos/redune/5073664/

Not true everywhere!Public Lending Right =

authors paidwhen books are loaned

First Sale: Under ReviewCase to watch

Capitol Records v Redigi (New York Southern District)

http://dockets.justia.com/docket/new-york/nysdce/1:2012cv00095/390216/

Is there a right to sell used digital music?

If yes, ebooks next

Massachusetts based MP3 resellerDeletes MP3 from user’s computer

Digital First Sale?

Outdated law.

Rights triggered when copy is made, even if original is deleted.*

*may make INCIDENTAL OR FAIR USE argument, depending on circumstances

First Sale: Under Review

Case to watchKirtsaeng v. Wiley (U.S. Supreme Court)

http://www.web2carz.com/trends/offline/1545/the-supreme-court-may-make-resale-illegalSee also First Sale Fast Facts for Libraries / Library Copyright Alliance Jan. 18, 2013

http://www.librarycopyrightalliance.org/bm~doc/lca-tp-firstsale18jan13.pdf

Are copies printed abroad subject to First Sale?

If no, possible erosion of print loans, library booksales

works made overseas

LENDING CONTENT Copyright Safe

OK:

• Public Domain

• Creative Commons

• Permission(e.g. local author)

New rights modelsunglue.it – creative commons

Rights holders set dollar mount, readers pledge $ to “unglue”

Success =Creative Commons License

Licenses

Licenses

understanddefault copyright

rights before signing

understanddefault copyright

rights before signing

Douglas County Libraries and Califa:

Statement of Common Understanding

Uses copyright law, not license

Describes how copyright law applies

One user-One loan

LITIGATION: Hathi Trust Book Scans as FAIR USE

OK for

preservation searching text mining print disabled users

Now on appeal.

Orphan works program suspended, not currently at issue

Authors Guild v. HathiTrust

LITIGATION: Google Books Scanned over 20 million books with library partners Search “snippets”

2005 Authors and publishers sued Google

Proposed settlement:

BOOKS RIGHTS REGISTRY (sell orphans)

Court REJECTED

Current status: publishers settled authors have not

Authors Guild v. Google

Not at issue:

2 million public domain books

2 million previews with publisher agreements

http://www.librarycopyrightalliance.org/bm~doc/googlebookslitigation-familytree.pdf

Google Books

Authors Guild v. Google

For

updates

thepublicindex.org

Institute for Information Law and Policy at New York Law School.

Orphans: Public Comment Period Deadline Feb. 4, 2013

http://www.copyright.gov/orphan/

Updating library co

pyright

Feb 8 Columbia Univ

Updating library co

pyright

Feb 8 Columbia Univ

http://tinyurl.com/Sec108

Agenda

Other issues

E-reservesStreaming videos UCLA, YouTube

Changing formats

E-Reserves

Cambridge University Press v. Becker

COURT (May 2012):

26 not registered or de minimis44 FAIR USE 5 Infringing

Look to amount and market harmRejected CLASSROOM GUIDELINES

Reasonable limits: One chapter of book with 10+ chapters 10 % of book less than 10 chapters

On appealSee ARL Issue Brief by Brandon C. Butlerhttp://www.arl.org/bm7Edoc/gsu_issuebrief_15may12.pdf

http://dockets.justia.com/docket/georgia/gandce/1:2008cv01425/150651/

Streaming Videos: UCLA Case

UCLA converted DVDs to streaming for in course management system

November 2012: Court found it could be FAIR USE – the streaming did not substitute for purchase and did not cause market harm.

January 2013 : Second amended complaint dismissed

Assn for Information Media & Equipment v. University of Californiahttp://dockets.justia.com/docket/california/cacdce/2:2010cv09378/489296/

May We Show YouTube Video?

Copyright and YouTube Terms of Service

Copyright Law – Specific exception

OR MAKE FAIR USE CASE

Performance by instructors or pupils in face-to-face teaching activities of nonprofit educational institution in classroom or similar place devoted to instruction

See also TEACH Act for distance ed

17 U.S.C. Sect. 110(1)and (2)

May We Show YouTube Video?

Copyright and YouTube Terms of Service

Copyright Law – Specific exception

OR MAKE FAIR USE CASE

• Performance or display to the public on apparatus commonly

used in private homes permissible unless– Direct charge to audience or further transmission to the public

• OK for non food/drinking establishments with less than 2,000 sq ft

if no more than six loudspeakers (no more than four per room) (for audio only)

no more than four audiovisual devices (no more than one per room) and diagonal screen size no greater than 55 inches

17 U.S.C. Sect. 110(5)

YouTube Terms

http://www.youtube.com/t/contentid

YouTube Terms of Service4. General Use of the Service—Permissions and Restrictions

YouTube hereby grants you permission to access and use the Service as set forth in these Terms of Service, provided that:

A. You agree not to distribute in any medium any part of the Service or the Content without YouTube's prior written authorization, unless YouTube makes available the means for such distribution through functionality offered by the Service (such as the Embeddable Player).

B. You agree not to alter or modify any part of the Service.

C. You agree not to access Content through any technology or means other than the video playback pages of the Service itself, the Embeddable Player, or other explicitly authorized means YouTube may designate.

D. You agree not to use the Service for any of the following commercial uses unless you obtain YouTube's prior written approval:

the sale of access to the Service;

the sale of advertising, sponsorships, or promotions placed on or within the Service or Content; or

the sale of advertising, sponsorships, or promotions on any page of an ad-enabled blog or website containing Content delivered via the Service, unless other material not obtained from YouTube appears on the same

page and is of sufficient value to be the basis for such sales.

E. Prohibited commercial uses do not include:uploading an original video to YouTube, or maintaining an original channel on YouTube, to promote your

business or artistic enterprise;

showing YouTube videos through the Embeddable Player on an ad-enabled blog or website, subject to the advertising restrictions set forth above in Section 4.D; or

any use that YouTube expressly authorizes in writing.

(For more information about what constitutes a prohibited commercial use, see our FAQ.)

http://www.youtube.com/t/terms?hl=en

Copyright Geek Time: Changing Formats

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

17 U.S.C. Sect. 101

To be copyrightable, a derivative work must differ sufficiently from the original to

be regarded as a new work or must contain a substantial amount of new

material. Making minor changes or additions of little substance to a preexisting

work will not qualify a work as a new version for copyright purposes. The new

material must be original and copyrightable in itself. Titles, short phrases, and

formatting are not copyrightable. http://www.copyright.gov/circs/circ14.pdf

Agenda

Ebooks

Lending content

Litigation:Google Books, Hathi Trust

Other issues

E-reservesStreaming videos UCLA, YouTube

Changing formats