Category Archives: Blog

First Sale, Fair Use, and Digital Downloads:
Capitol Records v. ReDigi

Posted February 22, 2017

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In honor of Fair Use Week, we are delighted to feature this guest blog post from NYU Technology Law & Policy Clinic students Cassie Deskus and Kristen Iglesias discussing the role of fair use in the ReDigi case.

The Second Circuit will soon hear arguments in Capitol Records v. ReDigi, a case that will determine if and when consumers will be able to resell lawfully owned digital media. ReDigi provided an online marketplace for reselling music purchased from iTunes. ReDigi’s software allowed users to transfer music from their computer to ReDigi’s cloud servers, where it was offered for sale. Upon a subsequent sale, the software transferred the file to the buyer’s computer. The transfer process attempted to avoid copyright issues by employing strong verification safeguards and ensuring that there was only ever one full copy of the song in existence at any given time.

If ReDigi had been in the business of reselling physical CDs or books, resale would have been an uncontroversial application of first sale—a doctrine which permits the owner of any lawfully owned copy to dispose of that copy without restriction. The District Court, however, held that each song transfer was an unlawful reproduction, effectively preventing the owner of a digital work from reselling it. Unless the opinion is reversed, the only way consumers will ever be able to resell their digital music or books is to sell their entire digital device. In other words, to resell a $0.99 eBook you finished reading years ago, you’d have to sell your entire tablet and all of its contents!

This should be concerning to all creators of digital works. Without lawful resale, the “secondary markets” we enjoy in the physical sphere–libraries, used bookstores, garage sales, and even donations–cease to exist in the digital sphere. Not only will authors be unable to reach the same listeners and readers via digital publication that they might through analog publication, but those same listeners and readers won’t be able to easily share the digital works that they love.

That’s why the NYU Technology Law & Policy Clinic filed an amicus brief on behalf of over 20 copyright scholars, including several Authors Alliance members, arguing that any alleged unlawful reproductions are covered by either first sale or fair use.

As many Authors Alliance members know, the first factor of fair use is “the purpose and character of the use.” We argued that exercising a copy owner’s first sale rights, which have been recognized by courts and Congress for over one hundred years, is about as fair a purpose as can be. The public benefits resulting from digital secondary markets also favor this interpretation. The fact that ReDigi was a commercial enterprise does not change this outcome—indeed, many commercial uses of digital copyrighted works have been held to be fair use. ReDigi’s platform parallels secondary markets that have always existed in the physical realm; such markets are a testament to copyright law’s tolerance for, and accommodation of, robust resale rights. We hope that the Second Circuit reverses the lower court and preserves digital first sale, especially given the strong fair use arguments favoring ReDigi. If you’d like to read the rest of our argument, the entire brief is available here.

Fair Use Week: Our Best Practices Guide is Underway!

Posted February 21, 2017

ARL-FairUseWeek-Logo-BlueThis Fair Use/Fair Dealing Week, we’re highlighting a new project that’s of special interest to any non-fiction author who has ever been baffled by fair use. Following on the success of our educational guides for rights reversion and open access, we are hard at work on our latest project: a new guide to fair use best practices for non-fiction authors. Inspired by the work of Peter Jaszi and Patricia Aufderheide at the Center for Media and Social Impact at American University, the third volume in our growing library of educational resources will focus on best practices for nonfiction authors—from biographers to science writers, historians to literary critics, memoirists to academics, and beyond—who depend on the use of copyrighted materials in their work.

Authors Alliance is partnering with the Samuelson Law, Technology, and Public Policy Clinic at UC Berkeley Law to draft the guide, which will feature extensive input from non-fiction authors, copyright experts, and partner organizations. The goal of this fair use guide is to empower authors to exercise their right to use source materials to further their research and writing goals by helping them to make confident fair use decisions. The guide will help nonfiction authors who want to do things like:

  • Include song lyrics in an academic paper discussing musical trends;
  • Use several lines from a novel to analyze the author’s use of metaphors in a work of literary criticism;
  • Use a chart in a scientific paper to demonstrate a process;
  • Incorporate a photograph in a biography to provide historical context;
  • And much more!

We plan to release the guide this year, and look forward to keeping our members, allies, and partner organizations up to date on the project. If you have a question, concern, or real-life example of a fair use issue that you would like to see addressed in the guide, let us know! We can always be reached at info@authorsalliance.org.

“The Best Panel I Attended”: Authors Alliance at the AWP Conference

Posted February 15, 2017

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The Authors Alliance team is back from Washington, DC, and we’re happy to report that our time at the 2017 Association of Writers and Writing Programs (AWP) conference was a great success. We’d like to extend a warm welcome to the many new members who joined Authors Alliance at AWP!

Now in its 50th year, the AWP conference draws 12,000 attendees, including MFA students, writing teachers, publishers, booksellers, and authors of all stripes. From February 9-11, Brianna Schofield and Erika Wilson hosted a table at the AWP Bookfair and were gratified by the level of interest and engagement from the writing community. Conference attendees kept us busy with questions about our resources and tools, especially our rights reversion handbook and our forthcoming guides to publication contracts and to best practices in fair use. We were thrilled to have so many enthusiastic new members join Authors Alliance. If you’d like to be part of our growing community of authors and creators, it’s easy to sign up online (basic membership is free).

In addition to staffing a robust information table, we also presented a conference panel on “Demystifying Copyright: A Crash Course in the Law of Literature,” featuring Authors Alliance executive director and intellectual property expert Rebecca Tushnet of Georgetown Law School. (Our third panelist, Jessica Silbey of Northeastern University, was unable to attend due to winter weather in Boston.) The session drew a large and engaged audience, and a number of attendees told us that it was the most useful panel they attended during the conference. We discussed topics ranging from Creative Commons licenses to fair use to publication contract language.

We thoroughly enjoyed this wonderful opportunity to meet hundreds of writers, share our resources, and share the Authors Alliance mission with our new members!

 

Authors Alliance Amicus Brief Supports Fair Use Defense in Georgia State Case

Posted February 13, 2017

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Since our founding, Authors Alliance has supported a robust interpretation of fair use that helps authors keep their works discoverable and in the hands of readers. We’ve published a number of opinion and policy articles on the subject, and our members and allies may recall that we filed an amicus brief in support of Google in the Authors Guild v. Google Books litigation, in which we argued that Google’s snippet views of scanned books from libraries made books more discoverable and served a public good by enhancing access to millions of works. We welcomed the Supreme Court’s decision not to hear the case, thereby ending the decade-long litigation and allowing the district court’s ruling in favor of fair use to stand.

Now, Authors Alliance has weighed in again on the fair use question, this time in the matter of Cambridge University Press v. Albert. The case turns on whether faculty at Georgia State University (GSU) infringed Cambridge University Press’ and other publishers’ copyrights by assigning chapters from scholarly books to their students via secure course websites. GSU argues that this limited use for nonprofit educational purposes falls within fair use, and we have filed an amicus brief with the 11th Circuit in support of that argument. In the brief, we highlight that academic authors’ primary motivation to write and publish scholarly works is grounded in their desire to share and advance knowledge. Many of our members are academic authors, and one of our members is the author of a chapter at issue in the case. They—and we—believe that this limited use of copyrighted content in a nonprofit educational setting meets the test for fair use. In the brief, we present three main arguments in support of this interpretation:

  • Incentives to write and publish scholarly book chapters will not be impaired by a ruling that nonprofit educational uses of these chapters is fair use.
  • The use of fact-, method-, and theory-intensive scholarly book chapters assigned primarily because of the originality of ideas, theses, research, data, and methods they contain, rather than on originality of expression, should tip in favor of fair use.
  • New options in digital publishing and trends toward open access in scholarly communications favor the fair use ruling.

The full text of the brief may be read here. We will continue to follow the case and provide updates on new developments in the litigation.

Authors Alliance on the Road: Washington, DC

Posted February 3, 2017

On February 8-11, Authors Alliance will travel to Washington, DC for the annual Association of Writers and Writing Programs (AWP) Conference and Bookfair. Following the success of last year’s presentation on rights reversion and publishing contract terms, we were again selected to present an educational panel at the conference—the largest professional gathering of writers, writing programs, and publishers in the United States.

This year’s presentation, Demystifying Copyright: A Crash Course on the Law of Literature, features intellectual property experts Rebecca Tushnet of Georgetown University and Jessica Silbey of Northeastern University. Copyright controls authorship’s inputs, in terms of how we can use the works of those who came before us, and its outputs, in terms of how others can use our work. But the law is too often arcane and its opacity can be disempowering. This panel of legal experts will outline important copyright basics and tackle some of the stubborn myths and misconceptions surrounding our copyright system.  The discussion will be moderated by Authors Alliance executive director Brianna Schofield.

In addition to the panel, Authors Alliance will also staff an information booth at the AWP conference bookfair.  We will be available for the duration of the conference to distribute educational materials, speak directly with authors, and answer questions about issues such as copyright, contracts, rights reversion, open access, and termination of transfers.

We look forward to the opportunity to connect with authors, creators, and our members and spread the word about our tools and resources. If you are planning to attend AWP this year, be sure to stop by our table and say hello!

Welcome, Brianna Schofield!

Posted February 1, 2017

We are delighted that Brianna Schofield has joined Authors Alliance as our new Executive Director, effective today. Schofield is a copyright attorney licensed to practice in California, and has extensive experience in working on our core issues thanks to her leadership at the Samuelson Law, Technology, and Public Policy Clinic at UC Berkeley Law. She is co-author of our handbooks on rights reversion and open access, and is a knowledgeable and passionate advocate for authors’ rights, fair use, and other key issues of importance to our community. In addition to her legal and policy expertise, she brings a wealth of business management experience to her new role.

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“Over the past two years, I have had the great privilege of partnering with Authors Alliance to develop resources that advance the mission of the organization,” Schofield says. “In working on these projects, I have been inspired by the devotion of Authors Alliance members and leadership to the shared goal of promoting widespread access to knowledge and creativity. As the new Executive Director, I am incredibly excited to expand upon this work and to continue to support authors who want to share their works broadly.”

The Authors Alliance board and core staff are excited to welcome Schofield on board and to introduce her to our community. “Brianna is an exceptionally well qualified person to succeed our former (wonderful) Executive Director Michael Wolfe,” says Authors Alliance President Pamela Samuelson. “We are delighted to have her on board as our ED.”

Brianna can be reached at brianna@authorsalliance.org. Please join us in welcoming her to her new role!

Authors Alliance Submits Comments Regarding the U.S. Copyright Office to the House Judiciary Committee

Posted January 31, 2017

Today, Authors Alliance submitted comments to the House Judiciary Committee in response to an initial proposal by Representatives Bob Goodlatte (R-VA) and John Conyers (D-MI) to reform the U.S. Copyright Office. The Committee invited comment on four proposed reforms intended to reorganize the office, bolster expertise, modernize technology infrastructure, and allow for pursuit of small claim infringements.

We applaud the Judiciary Committee for soliciting stakeholder input on these important issues, and we will continue to monitor developments at the Copyright Office and keep our members up to date as the Office seeks a new Register of Copyrights and works to implement reforms. The full text of our comments may be read below:

Copyright Week 2017: New Media and New Rules for 21st-Century Creators

Posted January 19, 2017

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It’s copyright week! This week, Authors Alliance is joining a group of organizations in reflecting on some of the principles that help make copyright law an engine of creativity.

Copyright is intended to fuel creativity by helping creators secure the rights they need to comfortably and profitably continue with their work. But creators come in all shapes and sizes and many internet-age creators have very different needs from the copyright system than some of their more traditional peers. We need a system that works to foster these digitally-empowered voices, but too often the system we have does just the opposite.

In particular Section 1201 of the Digital Millennium Copyright Act, which provides legal protection for digital locks on copyrighted goods, has been deeply problematic for new and important creative works. We have written previously about Authors Alliance’s effort to obtain an exemption to this law that preserves authors’ right to make one important kind of fair use in the digital age. The exemption, which we explained in detail here and here,  protects the fair use rights of e-book authors, allowing them to bypass the encryption on DVDs, Blu-ray, and other media in order to use film clips in multimedia e-books.

In comments filed with the U.S. Copyright Office in 2015, we asked for an exemption to allow multimedia e-book authors to circumvent technological protection measures in order to embed video content into their works for fair use purposes, just as they have been able to embed quotations and images into their paper books. We requested that the previous 2012 exemption be modified to allow authors to access  more kinds of video content and use it in their multimedia ebooks for any fair use, not just film analysis.

While we were pleased to see the Acting Librarian of Congress announce a Final Rule preserving and expanding this important exemption, the solution is a patch at best: a sliver of fair use preserved for a sliver of authors for a short term of years. We need long-term solutions that ensure that the law both allows and fosters digital creativity that depends on fair use.

New technologies open up creative possibilities unheard of even a decade ago. Instead of being locked down, these innovations should be fostered, and creators allowed to fully rely on fair use in the digital world.

Copyright Week 2017: Foster Transparency and Representation in Copyright and Provide Input on the Next Register of Copyrights

Posted January 18, 2017

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It’s copyright week! This week, Authors Alliance is joining a group of organizations in reflecting on some of the principles that help make copyright law an engine of creativity.

Copyright law has many stakeholders, including creators of all kinds and the consumers of their works. Traditionally, however, only a narrow band of copyright’s constituents have had real representation in setting copyright policy, which has typically put the interests of certain classes of commercial creators and industries first. From the start, Authors Alliance has worked to bring the voices of creators who wish to share their work broadly to these important debates.

Today, the United States is at a critical inflection point in how it makes copyright policy and whose interests are considered in the process, with a new Librarian of Congress currently working to appoint a new Register of Copyrights (the highest ranking official at the United States Copyright Office and the U.S. government’s leading copyright expert).

In fact, the resignation of Register of Copyrights Maria Pallante last fall brought about renewed scrutiny of the entire U.S. Copyright Office, as well as calls for reform—notably from Rep. Goodlatte and the House Judiciary Committee in December.  Key points under consideration are the Office’s relationship to the Library of Congress, its organizational structure, and the pressing need for modernization and technological upgrades.

The Library of Congress is currently seeking input from the public on the qualifications and priorities for a new Register of Copyrights. The Copyright Office is tasked with serving a diverse constituency whose values and goals are often at odds with one another. The leadership transitions at LOC and the Copyright Office have created a significant opportunity to see a copyright office that is both more effective at its core functions (most especially, registering copyrights and copyright transfers), and more cognizant of the diversity of interests in our copyright system. The debates are real, and the consequences far-reaching. Now is the time for those of us who support openness, a broad view of fair use, and protections for individual creators, to advocate for our values.

Authors Alliance is closely following these developments at the Copyright Office in the coming year, and is committed to continuing seeing our members’ interests represented in these kinds of venues. We encourage all of our members and allies to take the LOC’s survey by the January 31 deadline to ensure that we—as authors and creators whose work is both helped and hindered by copyright policy—have a voice in the ongoing debates on copyright reform.