Category Archives: Blog

U.S. Copyright Office Releases Report on Moral Rights

Posted April 29, 2019
Painting of author at desk in blue robe
“Author from BL Harley 4425, f. 133” by Guillaume de Lorris and Jean de Meun is licensed under PDM 1.0

In March 2017, Authors Alliance submitted comments in response to the U.S. Copyright Office’s study of moral rights. We voiced our support for creators’ rights to integrity and attribution (subject to limitations and exceptions that protect downstream creative reuse), and our belief that these non-economic authorial rights should be formally recognized in U.S. copyright law—as they are in many other countries. We also encouraged the Copyright Office to consider recognizing other non-economic author rights, namely, the right to revive one’s work if it is no longer available commercially and the right to revise one’s work over time.

Last week, the Copyright Office released a report, Authors, Attribution, and Integrity: Examining Moral Rights in the United States, which provides a review of the U.S. moral rights landscape and recommendations for enhancing existing moral rights protections. The Copyright Office identifies three principles that guide its analysis of a U.S. moral rights framework: respecting foundational principles of U.S. law (including the First Amendment, fair use, and limited copyright terms), appreciating the importance creators place on their attribution and integrity interests, and recognizing and respecting the diversity among industry sectors and different types of works.

Based on these principles, the Office concludes there is no need for the creation of a blanket moral rights statute at this time. Instead, the Office recommends that Congress should consider legislation targeted at specific areas, including amending the Lanham Act and the Visual Artists Rights Act (VARA) to better protect attribution and integrity interests, expanding recourse for removal or alteration of copyright management information, and adopting a federal right of publicity law. These recommendations are detailed in the Office’s report.

Although we are disappointed that the Office declined to recommend that Congress consider new statutory moral rights legislation at this time, Authors Alliance commends the Office for recognizing that attribution and integrity provide meaningful incentives to authors to create new works and that the value to authors of reputational enhancement by virtue of public dissemination of their works is meaningful to authors.

Authors Alliance will continue to speak out for the right of authors to be acknowledged as creators of their works. As we wrote in our founding Principles and Proposals for Copyright Reform, attribution serves not only the interests of authors, but also the reading public’s interest in knowing whose works they are consuming and society’s interest in an accurate record of the intellectual heritage of humankind.

Accessibility Resource Roundup

Posted April 23, 2019
Colorful neon sign of a cowboy on a rearing horse
photo by Jakob Owens on Unsplash

April 23 is World Book and Copyright Day, an annual event organized by UNESCO to promote reading, publishing, and copyright around the world. In that spirit, we’ve compiled this list of resources on the topic of accessibility.

Earlier this month, the WIPO Standing Committee on Copyright and Related Rights (SCCR) held its 38th Session in Geneva. (Although we didn’t attend this session, Authors Alliance has traveled to previous sessions of the SCCR to advocate for reasonable limitations and exceptions to copyright for educational and research purposes.)

One item under consideration at the most recent meeting was the Revised Scoping Study on Access to Copyright Protected Works by Persons with Disabilities. The report, prepared by Professors Caroline Ncube of the University of Cape Town and Blake Reid of the University of Colorado, was based on this 2017 WIPO fact-finding study. It defines various categories of disabilities in order to better identify which formats qualify as accessible for different types of users and analyzes the copyright laws of the 191 WIPO member states in the context of copyright exceptions for persons with disabilities.

In addition to co-authoring the WIPO/SCCR report, Professor Reid also has a new article on Internet Architecture and Disability (forthcoming in the Indiana Law Journal). As the abstract states, “[t]he prevailing doctrinal approach to Internet accessibility seeks to treat websites as metaphorical ‘places’ subject to Title III of the ADA, which requires places of public accommodations to be accessible to people with disabilities. While this place-centric approach to Title III has succeeded to a significant degree in making websites accessible over the last two decades, large swaths of the Internet—more broadly construed to include Internet technologies beyond websites—remain inaccessible to millions of people with a variety of disabilities.”

Also available in pre-print format is the Book Industry Study Group (BISG) Guide to Accessible Publishing (currently in draft for public pre-publication review). This major reference work is a newly updated and greatly expanded edition of the previous 2016 version and contains a comprehensive guide to creating accessible content, a glossary, and a series of “cheat sheets” that break down topics into user-friendly summaries. As the Introduction states, “Maybe someday we’ll be able to stop describing publications as ‘accessible,’ because it will be taken for granted. It’s hoped that this Guide helps us get there.”

Last but by no means least, the International Federation of Library Associations and Institutions (IFLA) has released “Getting Started With the Marrakesh Treaty: A Guide for Librarians.” As we’ve written previously, the treaty creates a set of mandatory limitations and exceptions for the benefit of blind, visually impaired, and otherwise print disabled readers. It requires that contracting states enact copyright exceptions that allow books and other creative works to be made available in accessible formats, such as braille and audiobooks, and to allow for the import and export of such materials. Now that over 50 countries around the world (including the United States) have acceded to the Marrakesh Treaty, the IFLA guide—available in five languages—provides hands-on guidance on international copyright issues to libraries to facilitate availability of materials according to the requirements of the treaty.

For further reading on the topic of accessibility, see also our previous resource roundup, released in the fall of 2018 in connection with our report on Authorship and Accessibility in the Digital Age.

Spotlight on Book Publication Contracts: Follow the Money

Posted April 16, 2019

Shelf with colorful books and Authors Alliance logo on blue background
In our Spotlight on Book Publication Contracts series, we are shining the light on the ways that authors can negotiate for publication contract terms that help them make and keep their books available in the ways they want. This series is based on the information, strategies, and success stories in our guide to Understanding and Negotiating Publication Contracts. Be sure to check out the online or print version of our guide for more details on these and other strategies to help you meet your creative and pragmatic goals.

In previous posts, we have featured ways authors can shape their publication contracts to retain some control over their rights and ways authors can have a say in how their works will be presented to the world. But rights management and design decisions may not be the only thing on your mind in a book deal. In this installment of our Spotlight on Publication Contracts, we’re focusing on ways that you can shape your contract to help secure fair compensation for your work. Contract terms governing advances and royalties are two key ways that your contract determines what money will flow to you.

Advances

Advances are payments for book deals that are credited against all or some part of your future earnings. An author’s advance is influenced by many factors, including the potential market size for the book, whether the author is a new or established writer, the book’s timeliness and competition, and a publisher’s calculation of risk and reward.

A perennial question for authors is “How big should my advance be?”. Unfortunately, there aren’t any hard-and-fast rules about the size of an advance. Sometimes, it makes sense to negotiate for the biggest advance possible. Because an advance is a credit against your royalties, if your publisher pays you a big advance, it has an incentive to market your book aggressively so that it sells enough copies to recoup this payment.

Success Story: An author interviewed for Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts wanted his book to be affordable and to be widely distributed, and he knew marketing would be important. Not being familiar with the publishing business, he hired an agent. The author and his agent pushed for a large advance in exchange for a modest cut in his royalty percentages. This way, the publisher would have the biggest financial incentive to market his book, as it stood to make more money once the author recouped. Further, the author agreed to use half his advance to hire an independent publicist to promote his book. This made it easier for his publisher to agree to a large advance as this increased the likelihood that the author’s book would be financially successful.

On the other hand, it’s possible that you may not receive an advance at all. While advances are typical in trade publishing, they are uncommon for scholarly works published by university presses. And, in certain circumstances, you might not want to take an advance. For example, your publisher may offer you a higher royalty percentage if you don’t take an advance, which could result in you earning more money over the long term if your book is successful. Or, you might be able to use a low (or no) advance as a bargaining chip to get better terms in another part of the contract.

Whatever the size of the advance you settle on, it’s important that you pay attention to how and when your advance will be paid and how your advance will be recouped. For more on advances, see pages 182-194 of Understanding and Negotiating Book Publication Contracts.

Royalties

Royalties are the amount of money that authors get from the sales of their books, usually expressed as a percentage. There are three main types of royalties:

  • royalties based on the book’s published price (also called the “list price,” the “cover price,” or the “manufacturer’s suggested retail price”);
  • royalties based on the publisher’s net income from sales of the book (also called “price received” or “sales proceeds”); and
  • royalties based on the publisher’s net profit.

To calculate your royalties under any of these systems, you’ll need to know both the percentage you will be receiving and the price from which that percentage is taken. It is very important to understand your royalty structure because it can make a huge difference in your future bank statements. For a detailed explanation of each royalty type, see pages 198-205 of Understanding and Negotiating Book Publication Contracts.

Success Story: Sergio Troncoso, an author of short stories, essays, and novels, as well as a savvy negotiator, pushed for his royalties to be a percentage of the list price, reasoning that this would likely be the more lucrative option. His publisher was initially resistant, but after a few rounds of back and forth, Sergio’s patience and perseverance paid off. His publisher agreed to a compromise: Rather than getting the published price (list) royalty he had asked for, he would receive a higher percentage of the net profit royalty than was originally offered.

Your royalties can also be influenced by escalation clauses, small reprinting provisions, reserves on returns, deep discount provisions, and remaindered books. For more on these topics, see pages 206-213 of Understanding and Negotiating Book Publication Contracts.

You’re Invited! 5th Birthday Party With Authors Alliance and Special Guests on May 15

Posted April 10, 2019

You are cordially invited to “Beyond the Bookshelf: Empowering Authors and Reaching Readers in the Digital Age,” an evening of conversation and ideas celebrating five years of Authors Alliance. The party will be held at the David Brower Center in downtown Berkeley on Wednesday, May 15.

We’ll kick things off with a wine and appetizer reception, followed by a panel discussion on how authors create, share, and preserve knowledge in an ever-changing media landscape.

Our panelists include:

Brewster Kahle, Digital Librarian and founder of the Internet Archive
Jeffrey MacKie-Mason
, University Librarian and Chief Digital Scholarship Officer, UC Berkeley
Abby Smith Rumsey
, Historian of ideas focusing on the creation, preservation, and use of the cultural record
Randy Schekman
, 2013 Nobel Laureate and Professor of Cell and Developmental Biology, UC Berkeley

The panel will be moderated by Authors Alliance co-founder Molly Shaffer Van Houweling.

Don’t miss the opportunity to celebrate five years of education and advocacy with the Authors Alliance team and special guest Lawrence Lessig, Professor of Law and Leadership at Harvard.

This event is free, but seating is limited and registration is required. For details and to RSVP, please visit our event page.

If you are unable to attend but would like to make a gift
in honor of our fifth birthday, please donate here.

Reversionary Rights Around the World

Posted April 9, 2019
image by Gordon Johnson from Pixabay

For creators who want their works to be widely shared and enjoyed, terminating transfers of copyright are a powerful option for getting works back out in front of audiences. Authors Alliance has long been a proponent of giving authors statutory rights to terminate transfers of copyright (often called “reversionary” or “termination of transfer” laws). Among other benefits, these rights give creators the ability to give new life to works that have outlived their commercial lives but are nonetheless historically and culturally valuable.

A new study of reversion laws by Joshua Yuvaraj and Rebecca Giblin found that 56% of the 193 countries examined have author-protective laws that allow authors to get their rights back from publishers if certain conditions are met. Yuvaraj and Giblin categorized the reversionary laws they identified based on their triggering circumstances: 1) a set period of time (from, for example, the date of the publication agreement or the author’s death), 2) a work’s out of print status, 3) the publisher’s active use of the work, and 4) other situations (such as if the publisher goes bankrupt).

Yuvaraj and Giblin will continue to examine these reversionary laws in more detail, but initially suggest that laws that allow authors to reclaim rights in the event that rights are not being exploited or if there are no/low sales of their works would help authors’ ongoing interests in their works while protecting publishers’ commercial interests. Read more about Yuvaraj and Giblin’s findings here.

Authors interested in learning more about reversionary laws around the world can explore the beta version of the Creative Commons Rights Back Resource. We encourage experts to contribute to the resource to help expand the database of country-specific laws.

Authors interested in learning more about terminating transfers under U.S. law can visit the Authors Alliance/Creative Commons Termination of Transfer tool at rightsback.org and the Authors Alliance Termination of Transfer resources page. If you are not eligible to exercise a statutory right to terminate a transfer of copyright, you may want to explore options for getting rights back by exercising contractual provisions or through negotiation.

Authors Alliance Guides Now Available on Project MUSE

Posted April 2, 2019

We’re pleased to announce that our educational guidebooks for authors—which cover rights reversion, open access, fair use, and publication contracts—are now available on Project MUSE, a repository for monographs and journals created by Johns Hopkins University in cooperation with libraries and university presses. Founded in 1995, Project MUSE is a non-profit home for scholarship in the humanities and social sciences, and now contains over 674 journals and 50,000 books.

The full range of titles on the platform is available via library subscription; many works (including all Authors Alliance titles) are also freely available to everyone on open access terms thanks to the Open Access Books Program, an initiative funded by the Andrew W. Mellon Foundation with the goal of enabling OA works on the platform to be “broadly shared, widely discoverable, and richly linked.”

Four Authors Alliance guidebooks displayed on a shelf

Starting with the publication of Understanding Rights Reversion in 2015, each Authors Alliance guide has been made freely available to view and download on our website and via the Internet Archive. For those who prefer a traditional book format, the guides are also available for purchase in print.

Now, thanks to Project MUSE, our guides also contain rich metadata to make them discoverable and available to libraries. The PDFs also meet the Project MUSE standards of accessibility for print-disabled readers. We are grateful to Kelley Squazzo and Philip Hearn at Project MUSE for their assistance in making our guides available via the Project MUSE platform. Publishers interested in adding their titles to the Open Access Books Program at Project MUSE can learn more here.

Authors Alliance on the Road: Portland, OR

Posted March 25, 2019
Old Town Portland neon sign against an evening sky
photo by Zack Spear on Unsplash

On March 28-30, Authors Alliance will staff an information table at the Association of Writers and Writing Programs (AWP) Bookfair at the Portland Convention Center. AWP is the largest professional gathering of writers, writing programs, and publishers in the United States, and we’re looking forward to the opportunity to connect with authors, creators, and our members to spread the word about our tools and resources.

We’ll be available for the duration of the conference to distribute educational materials, speak with authors, and answer questions about copyright, fair use, publishing contracts, rights reversion, and more.

If you’re an author planning to attend the AWP conference, be sure to stop by and see us at Table #10065. And if you live the Portland area and are interested in browsing the Bookfair, AWP is offering public admission on Saturday, March 30 for just $5. See you in the Rose City!

New Empirical Evidence on Digitization and the Demand for Physical Works

Posted March 19, 2019
Open books
photo by Congerdesign | Pixabay license

Authors Alliance members and allies know that we are champions of the opportunities presented by the digital age to generate new audiences and new sources of income for authors by helping connect books with readers. When we weighed in with an amicus brief in the Google Books case, we supported the position of authors who wanted their books to be discoverable through full-text searchable databases such as Google Book Search. We shared how Book Search helps readers to discover works, increasing the chance that books will find new audiences and markets as well as promoting the intellectual legacies of authors who wrote them.

New empirical research by Abhishek Nagaraj, Assistant Professor at UC Berkeley-Haas, and Imke Reimers, Assistant Professor of Economics at Northeastern, supports these arguments. Using data from Harvard libraries, the NPD (formerly Nielsen) BookScan database, and the Bowker BooksInPrint database, Nagaraj and Reimers investigated the effect of the Google Books project’s digitization of pre-1923 books from Harvard University’s libraries on demand for physical works. In Digitization and the Demand for Physical Works: Evidence from the Google Books Project, Nagaraj and Reimers present their findings, concluding:

Digitization hurt loans within Harvard but increased sales of physical editions by about 35%, especially for less popular works. Rather than cannibalizing demand, digitization might benefit copyright holders through increased discovery of less popular works.

Nagaraj and Reimers’ research contributes important empirical evidence to debates about the effect of digitization on the market for works. As the authors suggest, instead of serving as a market replacement, the availability of digitized copies may increase demand for print versions, especially for less popular and out-of-print works.

For more details about Nagaraj and Reimers’ data, methodology, and findings, click here to read the full article.

Researching Rumors About Open Access Dissertations

Posted March 12, 2019

We thank Jill Cirasella and Polly Thistlethwaite of the Graduate Center of the City University of New York for contributing the following guest post, which provides some background on their recent book chapter “Open Access and the Graduate Author: A Dissertation Anxiety Manual.”

Photo of Jill Cirasella
Jill Cirasella

For years, we have encouraged researchers at our institution, the Graduate Center of the City University of New York, to consider the benefits—for others, themselves, and their fields of study—of making their scholarship available open access. In doing so, we have found allies, some already committed to open access and some newly swayed by our arguments.

But, like many librarians advocating openness, we have also met resistance—disinclination to make time to upload works to repositories, confusion about variations among publishers’ policies regarding authors’ rights, certainty that niche work has no broader audience, concern about the viability of scholarly societies in an open-access world, etc.

Photo of Polly Thistlethwaite
Polly Thistlethwaite

Most of all, we have heard apprehensions about open access dissertations. Specifically, we have heard students and advisors express fear that making a dissertation open access would sink the author’s chances of publishing a book based on the dissertation.

We could have responded to these worries with our usual refrains about the many benefits and moral necessity of open scholarship, but we felt the weight of our responsibility to our students. We wanted to be able to provide them with confident, informed answers about open access dissertations, especially their effect on the publishing prospects (and, in turn, job and tenure prospects) of their authors. We quickly learned that there were very few research studies on this topic. Rather, blog posts and non-research articles predominated, giving anecdotes and rumors outsized influence. We decided to embark on some research ourselves, to review what was being said and examine, to the extent possible, whether it held up to scrutiny.

In our research, we found a wide array of misgivings about open access dissertations, but we were able to sort them into six categories:

  1. anxieties about finding a publisher for a book based on an open access dissertation
  2. anxieties among publishers about sales of dissertation-based books
  3. anxieties about misdeeds, such as plagiarism and idea theft
  4. anxieties about dissertations not being “ready” for wider audiences
  5. anxieties about having work “online,” whether or not open access
  6. anxieties about corporate monetization of student work

More research on all these matters is necessary, but we were pleased to be able to pull together some (reassuring!) statements by publishers and provide some (reassuring!) data about sales of dissertation-based books. We hope we dispelled some myths, clarified some ambiguities and misunderstandings, and inspired some more formal studies. Our research is available as “Open Access and the Graduate Author: A Dissertation Anxiety Manual,” a chapter in the book Open Access and the Future of Scholarly Communication: Implementation, edited by Kevin L. Smith and Katherine A. Dickson. (Needless to say, we also made it openly available.) We also recommend another chapter in the book that covers similar ground, “From Apprehension to Comprehension: Addressing Anxieties about Open Access to ETDs” by Kyle K. Courtney and Emily Kilcer (also openly available).


Jill Cirasella is Associate Librarian for Scholarly Communication & Digital Scholarship at the Graduate Center of the City University of New York. Her research focus is scholarly communication, broadly construed: recent projects examine anxieties surrounding open access dissertations, benefits of transforming dissertation deposit into a scholarly communication consultation, attitudes about practice-based library literature, and the professional experiences of hard-of-hearing librarians. She serves on the boards of three open access journals, including the Journal of Librarianship and Scholarly Communication, and is driven by a commitment to open scholarship.


Polly Thistlethwaite is Professor and Chief Librarian at the Graduate Center of the City University of New York. She is co-author (with Jessie Daniels) of  Being a Scholar in the Digital Era, a work that urges scholars to publish their work openly and to engage in the debates of the day. In the late 1980s and early 1990s, while working in NYC academic libraries, Polly also worked with the Lesbian Herstory Archives and the AIDS activist group ACT UP. She became a conduit for non-academics seeking access to medical and scholarly work sequestered behind library doors and paywalls. Polly is an advocate for free, publicly available scholarship.

Fair Use, Innovation, and Controlled Digital Lending

Posted March 5, 2019

We’d like to thank co-authors Kyle K. Courtney and David R. Hansen for permission to re-post the following article, which originally appeared on the Copyright at Harvard Library blog on March 1, 2019.


One of the beautiful things about fair use is how it can soften the copyright act, which is in many ways highly structured and rigid, to provide flexibility for new, innovative technology.

To understand how, it’s worth appreciating the structure of the Copyright Act. If you look at the table of contents of Chapter 1 of the Act (“Subject Matter and Scope of Copyright”), you see the first several sections define basic terms such as copyrightable subject matter. Included in that first half of the chapter is Section 106, which defines the exclusive rights held by rights holders: the right to control copying, the creation of derivative works, public distribution, public performance, and display.  In the bottom half of the Act, Sections 108 to 122 provide for a wide variety of limitations and exceptions to those owners’ exclusive rights. These exceptions are largely for the benefit of users and the public, including specific exceptions to help libraries, teachers, blind and print-disabled users, non-commercial broadcast TV stations, and so on.

Then, there’s fair use. As if perfectly positioned to balance between the broad set of rights granted to owners and the specific limitations for the benefit of users and the public, “fair use” is codified in Section 107, though it really isn’t a creature of statute. Fair use is a doctrine, developed by courts as an  “equitable rule of reason” that requires courts to “avoid rigid application of the Copyright Statute when on occasion it would stifle the very creativity which that law was designed to foster.” In that role, fair use has facilitated all sorts of technological innovations that Congress never could have anticipated, allowing copyrighted works and new technology to work together in harmony.

One particularly innovative system developed to enhance access to works is “controlled digital lending” (“CDL”):

CDL enables a library to circulate a digitized title in place of a physical one in a controlled manner. Under this approach, a library may only loan simultaneously the number of copies that it has legitimately acquired, usually through purchase or donation….[I]t could only circulate the same number of copies that it owned before digitization. Essentially, CDL must maintain an “owned to loaned” ratio. Circulation in any format is controlled so that only one user can use any given copy at a time, for a limited time. Further, CDL systems generally employ appropriate technical measures to prevent users from retaining a permanent copy or distributing additional copies.

While the courts have yet to weigh in directly on the CDL concept, we now have some guidance from a case in the Second Circuit Court of Appeals, Capitol Records, LLC v. ReDigi Inc. This case is about the development of an online marketplace created by ReDigi, which facilitated the sale of “used” mp3 music files. Capitol Records sued ReDigi, alleging that ReDigi infringed its exclusive rights to reproduction and distribution when it attempted to use a particular transfer method to sell the used mp3s.

The Court of Appeals upheld a lower court ruling that the doctrine of first sale is only an exception to the public distribution right and, therefore, does not protect digital lending because, in that process, new copies of a work are always made.

The court also rejected ReDigi’s fair use assertion. It found that the use was commercial in nature, was considered non-transformative, and replicated works exactly and precisely; simply put, they created mirror image copies of existing digital files.  Further, though the libraries associations in their briefs had raised the issue of a nexus of connection between fair use and specific copyright exceptions, such as Section 109 and 108, as an extension of Congressional policy that should influence the fair use analysis, the court did not discuss that argument.

That the court ruled ReDigi, a commercial enterprise, had interfered with the market for iTunes-licensed mp3s and their effort was not a transformative fair use, comes as no surprise to most lawyers and copyright scholars.

However, the decision, written by the creator of the modern transformative fair use doctrine, Judge Pierre Laval, contains several important lessons for CDL.

Transformative Use

First, the case raises a significant question as to whether CDL of digitized books may be “transformative” in nature. In the decision, examining the first factor, Judge Leval explains that a use can be transformative when it “utilizes technology to achieve the transformative purpose of improving delivery of content without unreasonably encroaching on the commercial entitlements of the rights holder.” For physical books, especially those that are difficult to obtain, this application of “transformative use” has a direct correlation to the core application of CDL.

Further, this quote interprets another critical technology and fair use case from the U.S. Supreme Court, Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), famously called the “Betamax case.” Since its decision in 1984, the Sony ruling helped establish and foster the creation of new and vital technology, from personal computers and iPods to sampling machines and TiVo. This Sony quote was most recently used in another Second Circuit case, Fox News Network, LLC v. TVEyes, where the same court laid out this particular reading of Sony. So, ReDigi here is drawing upon the precedent of two important transformative fair use cases to make its point. Under this transformative use definition, CDL should be determined to be transformative by the courts, especially if the commercial rights of the rights holder are not unreasonably encroached.

Therefore, while the court found ReDigi’s use to not be transformative, the Second Circuit opened the door for continued technological development, especially for non-commercial transformative uses under the first factor, like CDL. In fact, according to several scholars (Michelle Wu, Kevin Smith, Aaron Perzanowski), this creates a much stronger argument that CDL would be ruled a transformative fair use by a court.

Market Harm

The Second Circuit held that the ReDigi system caused market harm under the fourth factor of the fair use statute. Again, this is not a surprise to the copyright world. The court found that the service provider had no actual control of the objects being sold and that it “made reproductions of Plaintiffs’ works for the purpose of resale in competition with the Plaintiffs’ market for the sale of their sound recordings.”

What does this mean for CDL’s analysis under the fourth factor? Here, again, based on the language of the ReDigi decision, CDL looks pretty different. The ReDigi resales were exact, bit-for-bit replicas of the original sold in direct competition with “new” mp3s online through other marketplaces, such as iTunes. The substitutionary effect was clear, especially since the mp3 format is the operative market experiencing harm. For digitized copies of print books used for CDL, the substitutionary effect is far less clear. With most 20th-century books—the books that we feel are the best candidates for CDL—the market to date has been exclusively print. For those books, some new evidence from the Google Books digitization project suggests that digitization may in fact act as a complementary good, allowing digital discovery to encourage new interest in long-neglected works.

CDL doesn’t compete with a recognized market. When a library legally acquires an item, it has the right, under the first sale doctrine, to continue to use that work unimpeded by any further permission or fees of the copyright holder. CDL’s digitized copy replaces the legitimately acquired copy, not an unpurchased copy in the marketplace. To the extent there is a “market harm,” it’s one that is already built into the transaction and built into copyright law: libraries are already legally permitted to circulate and loan their materials. The CDL “own-to-loan ratio” ensures that the market harm for the digital is the exact same as circulating the original item.

Again, the language of the ReDigi court should be examined closely. The court distinguishes substitutionary markets from those that are complementary and natural extensions of the use inherent with purchasing the original: “to the extent a reproduction was made solely for cloud storage of the user’s music on ReDigi’s server, and not to facilitate resale, the reproduction would likely be fair use just as the copying at issue in Sony was fair use.” Reading this language through the lens of CDL, a modern reproduction service, such as CDL, that further enhances the owner’s use of materials that were purchased under first sale or owned under other authorized means would also qualify as a fair use.

All in all, the ReDigi case most certainly does not settle the CDL issue; if anything, the specific language of the court emphasizes the potential for more non-commercial transformative uses like CDL.


David Hansen is the Associate University Librarian for Research, Collections & Scholarly Communications at Duke University Libraries. Before coming to Duke he was a Clinical Assistant Professor and Faculty Research Librarian at UNC School of Law. And before that, he was a fellow at UC Berkeley Law in its Digital Library Copyright Project.

Kyle K. Courtney is Copyright Advisor and Program Manager at Harvard Library’s Office for Scholarly Communication (OSC). Before joining the OSC, Kyle managed the Faculty Research And Scholarly Support Services department at Harvard Law School Library.