Author Archives: Pamela Samuelson

Principles For Reassuring Authors of SSRN-Posted Papers Under Elsevier’s Ownership

Posted May 19, 2016

Note: This post was updated on June 2, 2016 in order to reflect changes in the final list of principles as presented to Elsevier and SSRN.

For-profit publisher Elsevier’s acquisition of the Social Science Research Network (SSRN) was disturbing news for many scholars who use SSRN to share their writings with colleagues. SSRN was never fully committed to the broadest conceptions of open access. But for those of us who have posted our works on SSRN over the years, it was open enough for purposes of disseminating our works to readers without charge. Our user-generated content—the hundreds of thousands of scholarly works that researchers have posted on SSRN and the network effects that have arisen from our usage of the site—is what made the SSRN platform valuable to scholars and readers, as well as valuable enough for Elsevier to want to acquire it. That content is collectively ours, not SSRN’s, and not Elsevier’s.

Despite some reassurances that SSRN policies won’t change post-acquisition, there is reason to be concerned about the willingness of an Elsevier-run SSRN to accommodate the open access preferences of scholars who post there. Elsevier has recognized that displaying some receptiveness to open access is shrewd in the current era, although it has pursued policies that have created obstacles to true open access in the view of many scholars.

How might Elsevier reassure SSRN authors that it will continue to respect the policies that have attracted scholarly authors to post on that site? As a starting point, Authors Alliance proposes these principles:

  1.  SSRN will be transparent about Elsevier’s plans for SSRN and apprise all contributing authors of any contemplated change no less than four months before effectuating it.
  2.  To post a work on SSRN, authors will not need to grant SSRN more than a nonexclusive license to reproduce and distribute verbatim copies of that work in the SSRN database. Licenses for any additional uses of authors’ works must be obtained separately.
  3.  The license for posting is and will remain a revocable license, so that if authors decide to withdraw their work from SSRN because of changes in its policies, or for any other reason, they can take down their previously posted works and can download a copy of their works before taking them down.
  4.  SSRN will remain an open platform for posting works regardless of their publication status. SSRN will not adopt a policy prohibiting authors from posting their works to SSRN where that posting is not prohibited by any agreement that the author has made with another party or any other obligation undertaken by the author.
  5.  SSRN will not remove a work posted by an author unless the author directs that it should be taken down, or SSRN must take the work down to comply with applicable law.
  6.  Authors may freely update versions of previously posted works.
  7.  SSRN will not interfere with authors’ ability to self-archive works posted on SSRN and to post the same works on other sites, including institutional open access repositories.
  8.  SSRN users should be able to download works posted on SSRN for any lawful purpose, without charge, unless the author elects to impose a charge. Such an agreement should be specifically obtained and separately consented to.
  9.  Authors’ right to rely on fair use to post works on SSRN that include third-party materials will not be limited by the terms of any SSRN or Elsevier policy or license.
  10. SSRN will not give preferential treatment in posting, search results, rankings, or otherwise to works published by Elsevier, to authors affiliated with Elsevier or Elsevier-related entities, services, or tools, nor to publications distributed for a fee.
  11. SSRN will promptly notify in advance authors who have posted works on SSRN about any changes in SSRN policies or terms of service that would impact the interests of those authors, including attempted changes in the terms of the license granted by authors or changes in the availability of posted works and statistics about views and downloads of posted articles. Changes in license terms or availability of works or data shall not take effect without affirmative consent from affected authors, not merely on the basis of blanket consent to prior policies.

This list focuses primarily on terms of use related to ownership and licensing of the articles posted on SSRN. It does not exhaust the features that will be important to keeping SSRN an attractive platform for the scholarly community. We also care about the platform’s approach to privacy, metadata, usage statistics, and interoperability. As the contributors of content that underlies SSRN’s value, we will monitor with interest whether these policies align with our values.

Agree with these principles? Join us in standing up for them by joining us as a member, or by letting SSRN know on twitter.

Important Fair Use Decision Stands, Helps Keep Authors’ Works Findable

Posted April 18, 2016

Pamela Samuelson, President, Authors Alliance

There was very good news for authors in the Supreme Court’s decision not to review last year’s ruling in the Authors Guild v. Google litigation. That decision, which will now stand, found that Google’s scanning of in-copyright books from research library collections for purposes of creating an index and serving up snippets in response to user search queries was fair use, not copyright infringement. The Authors Guild’s leadership (and its lawyers) are undoubtedly disappointed in this outcome. But all authors who want their books to be found by readers who are interested in learning from those books have reason to celebrate the end of this decade-long litigation.

While we obviously can’t know for sure what the Court would have done had it decided to hear the Guild’s appeal, it is fair to infer that the Court was not so outraged by the Second Circuit’s ruling that it felt compelled to put the case on its docket. The Court’s rejection of the Guild’s petition does not, of course, mean that it approved the fair use ruling. Yet it is worth noting that the Court gave considerable deference to Judge Leval’s conception of fair use in its 1994 Campbell v. Acuff-Rose decision. It was the very same judge’s fair use analysis that the Court would have reviewed had it taken the Authors Guild v. Google case.

Authors Alliance filed a friend of the court brief in support of Google’s fair use defense, saying: “Book Search makes it possible for many who are not privileged to have physical access to research library collections to be able to discover that our works exist.  Interested researchers should be able to find in an efficient way the ideas and contributions to human knowledge contained in our writings. We want our intellectual legacies to extend to a new generation of readers who nowadays search and find books almost exclusively online. Creation of a full-text searchable database of books provides these benefits.”

Judge Leval recognized the public benefit in making books more findable: “Google’s making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs’ books without providing the public with a substantial substitute for matter protected by the Plaintiffs’ copyright interests in the original works or derivatives of them.”

Judge Leval could have gone on to say that authors of published books want those books to be findable and to be useful to readers who are looking for information that the books contain. So it isn’t just the public (and Google) who benefit from Book Search, but these authors as well.

Why Authors Alliance Supports a Broader View of Fair Use Than the Authors Guild

Posted February 22, 2016

by Authors Alliance co-founder Pamela Samuelson

In December 2015, the Authors Guild asked the U.S. Supreme Court to review the Court of Appeals ruling that Google had made fair use of the in-copyright books that Google scanned from research library collections for its Book Search project in order to index their contents and serve up snippets in response to user search queries. Seven amicus curiae (friend of the court) briefs were filed in February in support of the Guild’s position. (The briefs can be found here.)

A common theme running through these briefs is that fair use should not be available as a defense to copyright infringement unless the defendant’s use resulted in the creation of a new work of authorship, such as a parody of a popular song or a critical commentary that quotes from the criticized author’s work. If someone merely uses an author’s work for a different purpose than the original and does not create a new work, the briefs argue that this should not be considered “transformative,” as the Second Circuit has ruled in the Google case, or weigh in favor of fair use.

“Transformativeness” has become an important factor in fair use cases since the Supreme Court’s 1994 decision in Campbell v. Acuff-Rose Music, Inc., which tested whether a rap parody version of Roy Orbison’s famous “Pretty Woman” song was fair use or infringement. In deciding whether the challenged use is fair, the Court directed judges to consider if the use ”supersede[s] the objects of the original creation,… or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative.’” The Authors Guild reads this definition differently than the Second Circuit does.

The Authors Guild’s attack on the different purpose cases is, of course, mainly aimed at Google. But if the Guild and its amici are right, then a rather large number of “different purpose” fair use cases that courts have decided in the past decade or so would seemingly fall as well. So let’s review some of them to consider the implications of the Guild’s position.

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Begging To Differ With Authors Guild About Google Book Search

Posted February 13, 2016

A version of the following letter by Authors Alliance co-founder Pamela Samuelson ran in the Wall Street Journal on February 13 in response to an earlier opinion piece published by the Authors Guild. In the full-length editorial below, Samuelson takes issue with the claim that Google Book Search undermines fair use and hurts authors. Many of our members and allies are familiar with the ongoing litigation between the Authors Guild and Google. We at Authors Alliance filed an amicus brief in support of the fair use defense, and have been closely following the case. Thus far, rulings have favored Google, and the Authors Guild is currently petitioning the Supreme Court to review the case. (The Court’s decision on whether or not to grant certiorari is expected this spring.) In light of this, strong voices in support of fair use and the public good need more than ever to be heard.

In a recent op-ed published in the Wall Street Journal, entitled “How Google Stole the Work of Millions of Authors,” Roxana Robinson, President of the Authors Guild, charged Google with stealing the works of millions of authors because Google digitized books from research library collections, indexed their contents, and served up a few snippets per book in response to user search queries.

I beg to differ. Google Book Search is a boon for both readers and authors.

Book Search consists overwhelmingly of non-fiction books, dense with knowledge, scanned from university research library collections. They were mostly written by academic authors in the hope and expectation that the books would be read by others and contribute to the ongoing progress of knowledge creation and dissemination. Their authors want the books to be discoverable.

Conventional research library catalogs can help some prospective readers to find some books, but they provide only limited information about the books in the libraries’ collections and fall short of ensuring the long-term intellectual legacies of the books’ authors. Full-text search databases such as Google Book Search do considerably more to stave off scholarly oblivion. These services offer authors new hope that their books will find readers and will contribute to scholarly discourse that will promote the ongoing progress of knowledge. Even those who lack physical access to research library collections can find out that books exist that they might want to buy or borrow. This is consistent with the constitutional purpose of copyright law.

Perhaps some best-selling Authors Guild members do not need full-text search tools to reach their audiences. But the Guild’s position does not represent the interests of all authors. Many professional writers, as well as academic authors, are likely to benefit from full-text search tools such as Book Search. Indeed, an empirical study of the views of 880 professional writers, introduced in evidence in the Google Books case, reported that well over half of authors surveyed affirmatively approved of Book Search snippets, almost half thought that Book Search snippets would help sales of their books, and only a tiny minority (four percent) thought that Book Search snippets would be harmful.

Despite the many benefits that Book Search provides for authors and readers, the Authors Guild and a small number of its members have been seeking a windfall award of $3 billion in statutory damages for the copying of scholarly books from research library collections in which very few of the Guild’s members actually own copyright interests. The Guild is also seeking injunctive relief to remove Book Search from the Internet, a sweeping remedy that would harm the interests of authors who want readers to find their books.

In ruling against the Authors Guild, the Second Circuit concluded that Google Books “augments public knowledge by making available information about plaintiffs’ books without providing the public with a substantial substitute for matter protected by the plaintiffs’ copyright interests.” The information that Google makes instantaneously available about relevant books “would otherwise not be obtainable in lifetimes of searching.”

This fair use ruling should stand. It serves the interests not only of readers, but also of authors who want their works to be discovered during their lifetimes and beyond.

Read the letter in the Wall Street Journal.

Thoughts on the Copyright Office Report and Orphan Works

Posted June 18, 2015

Authors Alliance Co-Founder Pamela Samuelson

The Copyright Office report on Orphan Works and Mass Digitization is an important step in the long road toward resolving the orphan works problem and seeing more of our cultural and intellectual heritage made accessible to the public and to authors who want to build upon this heritage.

Authors Alliance commends the Copyright Office for the serious attention it has given to this issue. We were glad to see that the Office regards the orphan work problem as “widespread and significant” and in need of policy resolution. We commend the Office for endorsing that the orphan work solution should apply to all types of works, all types of uses, and all types of users. We were pleased also to see that the Office accepts that fair use is and should be part of the solution to this problem and that the limitation on liability approach the Office proposes can co-exist with fair use as a solution to the orphan works problem in the United States.

Nevertheless, I am left with three reservations about the proposal: First, the Office proposes to condition eligibility for the limitation on liability approach on the user’s filing a very detailed notice of intent to use with the Copyright Office, which must include a description of the search conducted for the rights holder as well as what the intended uses are before any uses have been made. This may not be unduly cumbersome for major copyright industry firms, but for individual authors, particularly those whose motivation to write is more focused on contributing to knowledge than to make a lot of money, the notice-of-intent-to-use may be too difficult to comply with, particularly if the number of orphans that, say, an historian or anthropologist might want to use is substantial and if the exact nature of the uses have yet to be determined. The Office’s 2006 report did not include the notice-of-intent-to-use requirement.

Second, we should be concerned with the central role that the Office intends to play in developing standards for diligent searches for rights holders. Given the wide variety of works, users and uses that will be affected by the proposal, a one-size-fits-all search standard set by the Office may not provide the flexibility that would be desirable. Of course, a diligent search for rights holders should be required, and those who undertake lame searches should not qualify for limits on liability, but searches should be reasonable in light of the circumstances. A major motion picture studio that wants to make a movie of an orphaned short story should have to make a more rigorous search than an academic author who wants to use orphan works in a research project.

Third, it was disappointing that the Office was somewhat skeptical about the utility of codes of best practices for making fair uses of orphan works. These codes have been adopted through a rigorous and conscientious community processes, and provide greater guidance about fair use than can be had simply by studying the fair use case law.

Tackling problems of this scale is far from easy, but I am hopeful that, with the participation of Authors Alliance and other stakeholders, a fair and viable solution will not prove too far off.

Why is Fair Use Good for Authors?

Posted February 25, 2015

Authors Alliance Co-Founder Pamela Samuelson

Authors and artists rely on copyright’s doctrine of fair use far more than they may realize. February 23-28 is Fair Use Week this year, so it’s a good time to think about when and why fair uses benefit authors. (Fair uses of copyrighted works are not infringements; here’s a link to the Authors Alliance FAQ about fair use.) Authors and artists are likely to make and benefit from fair uses in every phase of the creative process and long thereafter.

The preparatory phase of creative work often involves making and being surrounded by fair use copies of materials that contain the information or inspiring words or images that the author/artist needs as raw materials. Sometimes authors search through large numbers of documents or other works to find the exact words or images that they need to prove or illustrate a point they want to make or to set context for the story they plan to tell. Often, the perfect source can only be found by scouring through reams of material, selecting from this a relatively small number of candidates for the use, and then as they create the work they have in mind, figuring out which is the right quote or image to use and where exactly to place it. Fair use copying is an integral part of this phase of the creative process.

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In Search of James Bond’s Essence

Posted February 8, 2015

Authors Alliance Co-Founder Pamela Samuelson

Having read several of Ian Fleming’s books as a youngster and seen virtually every James Bond movie, I have long been intrigued by the question: what is the essence of James Bond as a character? 007, yes. Shaken, not stirred, for sure. Handsome in a tuxedo or a swimsuit, yes, as well. Narrow escapes in exotic locations, that too. But surely these bits of his persona are not the essence of his (fictional) character.

The question is not just one for idle debate on a late winter evening. There has been litigation about whether those who depict James Bond-like characters without getting permission from those who claim copyrights in the books and movies are infringers.

MGM, for example, once sued Honda for copyright infringement because one of Honda’s television commercials featured a Bond-like character in a Honda del Sol automobile to show off the car’s detachable roof.

In the ad, a young, well-dressed couple was driving along a highway in one of Honda’s cars while being chased by a high-tech helicopter. A monstrous villain with metal-encased arms jumped out of the helicopter, landed on the car’s roof, and threatened the couple with imminent harm. To dispatch the villain, the male driver, with a flirtatious turn to his companion, released the Honda’s detachable roof, sending their foe into space and effecting the couple’s speedy get-away.

A well-known adage of copyright is that this law protects an author’s expression, not his or her ideas. So is Bond’s character an idea or an expression?

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Why the Authors Alliance Amicus Brief Supports Google’s Fair Use Defense

Posted July 10, 2014

By Authors Alliance co-founder Pamela Samuelson.

It was nearly a decade ago that the Authors Guild and three of its members brought a class action lawsuit against Google. It charged that Google’s digitization of in-copyright books from major research library collections for its Book Search project was copyright infringement. The plaintiffs have asked for an award of $3 billion in statutory damages against Google and an injunction to remove Book Search from the Internet.

What a tragedy it would be if the Authors Guild prevailed in this lawsuit—and not just for members of the public who have come to depend on Book Search to find information, but also for the overwhelming majority of authors who want their books to be discoverable through full-text searchable databases such as Book Search.

Google’s main defense has always been that this scanning was fair use because it helps users to find books containing information relevant to their queries without harming the market for the books. Indeed, by providing links to online stores from which the books can be purchased, Book Search is likely to enhance the marketability of books in this database.

Google won its fair use at a lower court last fall. The Authors Guild appeal is now pending before the Second Circuit Court of Appeals, which has long been the most influential court on copyright issues. Oral argument will likely occur in the fall. A decision on the merits should be rendered in the first half of 2015.

The Authors Alliance has today filed a brief in support of the lower court’s fair use ruling. The Alliance has an interest in this litigation because a substantial proportion of our members have books in the Book Search database. Several dozens of books written by Alliance Advisory Board members can, for instance, be found through Book Search. They includes nine by Harvard historian Robert Darnton, seven by Lawrence Lessig, five by Michigan economist Paul Courant, four by former Poet Laureate Robert Pinsky, three by former President of the Modern Language Association Sidonie Smith, and one by Nobel Laureate Harold Varmus. Because Authors Alliance members want their books to be found, the organization supports Google’s fair use defense in this case.

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Why Does the Authors Alliance Care About Orphan Works?

Posted July 2, 2014

By Authors Alliance co-founder Pamela Samuelson.

During the Authors Alliance launch at the Internet Archive, I talked about why the problem of orphan works is one of the pressing concerns the Authors Alliance seeks to address with its Principles and Proposals for Copyright Reform. Many of us, including academics, biographers, writers of historical fiction, and documentary filmmakers, come across many documents relevant to our research projects that we want to include in our works.

Sometimes we can tell that the documents are in the public domain, and sometimes we can easily track down the owners of in-copyright works and ask for permission. But many times, especially with older documents, it is unclear who the author is, how to track him or her down, or who else might have rights in the work.

Confusion about who is the author or owner of the rights is, of course, not an excuse to ignore copyright interests. There is general consensus that a prospective reuser should have to conduct a reasonably diligent search for the copyright owner, but copyright should not unreasonably impede reuse of the work if no owner can be found.

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HathiTrust Wins Big Victory for Authors in Authors Guild Case

Posted June 10, 2014

By Authors Alliance co-founder Pamela Samuelson.

The Authors Guild may have suffered a major loss today when the Second Circuit Court of Appeals ruled against its copyright infringement lawsuit against HathiTrust. But the HathiTrust win is an important victory for authors who write to be read and want readers to know their works exist.

The Second Circuit ruled that digitizing books for the purpose of enabling researchers to find information contained in books in the HathiTrust digital library is a fair use. With the aid of HathiTrust’s technology, researchers can make a query, for example, to find out how many of the 10 million books in the HathiTrust corpus contain references to anaphylactic shock. HathiTrust does not display the contents of in-copyright books responsive to such a query, but it does inform the researcher of the page numbers of books in physical library collections that are responsive to the query.

To put the point more simply, the court ruled that it is not copyright infringement for libraries to digitize works for the purpose of helping researchers find pertinent books. Authors of research library books often spent years writing them with the goal of sharing the knowledge and insights they contain with interested researchers. That knowledge can now be found using HathiTrust instead of moldering away unread in the physical stacks of research libraries.

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