Law and Tech A weblog on Law and Technology


Amazon is watching…

As the NY Times reports, unbeknownst to Amazon’s Kindle customers who purchased e-books of George Orwell’s 1984 and Animal Farm, the titles were secretly deleted from their owners devices. The books were deleted and customers accounts credited because the books were added to the Kindle store by a company that did not have rights to them. As comments rolled in on the Times’ Bits blog many questioned what it means to own an e-book.

Different protections exist for the protection of dead trees of older tech and the ones and zeros of the new age. These differing schemes afford the purchasers of the different media different rights with respect to their copy of the same underlying work. Technology and norms create differing schemes for protecting content owner’s rights. For instance, copyright law’s first sale doctrine (17 U.S.C. 109) gives the owner of a copy of a copyrighted work the ability to sell the copy without needing authorization of the copyright holder. This right does not extend though to works that are acquired through “rental, lease, loan, or otherwise, without acquiring ownership of it.” 17 U.S.C. 109(d). Here we see law work in tandem with societal norms: “I own this book, I can do with it like I please.”

Moving to the digital age where the norms have not been set in stone there are many differences. Some differences are technological while others are differences in the norms of the medium. Digital files are easily distributable due to networks like the Internet and can be copied from one device to another easily without destroying the first copy. The ease of making a perfect copy creates a different landscape than in the world without digital files. The other major difference is that the copy that the user has does not degrade over time, unlike “real” copies. (Though, it can be argued that in an ever evolving world of file formats, a single file’s shelf life may not be that long as a new file format supersedes it without backwards compatibility without an easy conversion process.) Also, with a change in medium also created a change in the way works are distributed. From one where the consumer “owns” the product to one where they merely license it. These ease of license agreements and limitations of use of the product are due, in part, to the ease the works are transmitted. This ease worried copyright holders and so they have lashed back and educated the public that file sharing and other forms of digital distribution are wrong (morally and legally). Also through the introduction of DRM and other digital locks, it became more difficult to freely and easily transmit files. Norms were created that said “I can use this book, but I cannot share it with anyone else.” And so, while it was commonplace for people to share a CD, book, or video game, due to new norms, locks, and licenses digital versions of the same works are effectively for the purchaser only.

It is interesting to see the immense freedom (anarchy) the digital landscape provided originally created a world in which there is more
control over content than ever. It appears in the future we will see more tactics like Amazons to retake the data they sold the user. Like the article noted: “it’s like Barnes & Noble sneaking into our homes in the middle of the night, taking some books that we’ve been reading off our nightstands, and leaving us a check on the coffee table.”


Wikipedia, a market approach to copyright?

Copyright gives the owner of the copyright an exclusive right to distribute and display their images. 17 U.S.C. 106. This exclusivity
creates an effective monopoly on a particular creative work. In some instances this exclusive right gives the owner a lot of bargaining power
when dealing with those who want to use the content. (Just look at the music and movie industries, piracy aside.)

The NY Times reports that Wikipedia has a strong policy of using works that are licensed under a very unrestricted Creative Commons license which professional photographers are weary of. Because of this, Wikipedia does not have many good photographs of celebrities. But, at the same time celebrities want their (good) pictures on Wikipedia. But, because of the licensing restrictions on Wikipedia, if it can go there anyone can basically take and use the content – much to the chagrin of the photographers.

The article finishes with a quote from celebrity photographer Jerry Avenaim: “To me the problem is the Wikipedia rule of public use . . . If they truly wanted to elevate the image on the site, they should allow photographers to maintain the copyright.” It appears that as Wikipedia becomes more indispensable we’re going to see a much greater push of celebrities to get pictures of their likeness on the site licensing restrictions on the part of Wikipedia or not. Celebrities may eventually push for some photos of them to be distributed with a CC or other “copylite” licenses. In this case it’s Wikipedia’s relative exclusivity that beats out the content owner.


One Expensive Playlist…

As reported, the Jammie Thomas-Rasset verdict was announced, $1.92M to the music industry's largest players. This is after she "won" a retrial after the Judge ordered a retrial for an imprecise instruction in the first trial which the jury rendered a comparatively minuscule $222,000 verdict. But, as Thomas said, "Good luck trying to get it from me... it's like squeezing blood from a turnip." This reopens the question as to whether the sky is truly the limit as to damages. Especially as to statutory (compensatory) damages for copyright infringement, which is thousands of times more than the cost of the 24 songs she infringed.


Google Book deal under scrutiny

The Wall Street Journal has reported that the U.S. Justice Department has sent formal demands to Google, Inc. for information about a settlement deal that would enable the search engine giant to provide millions of books online through its Google Book Search. 

The Association of American Publishers and others filed a law suit in 2005 against Google Book Search after Google began scanning US books still in copyright for its database in 2004.  The conflict has resulted in a settlement where Google will sell book content online and internet users will be able to search for and buy millions of titles, many of which are out of print.  The $125m deal has been deemed the biggest book deal in US publishing history but awaits federal court approval and has now come under scrutiny for possible antitrust violation. 

The settlement was given preliminary approval by New York District Judge John Sprizzo in October of last year with a scheduled hearing for June 11, 2009. The speed with which the time table was laid out surprised some as the hearing was scheduled for less than a month after the deadline to file comments on the settlement.  Subsequent protesting of the settlement lead to a decision by New York District Judge Denny Chin to extend the objection deadline to Sept. 7, 2009 and the hearing to approve the settlement to October 12, 2009. 

Those in support of the settlement argue that it will tremendously aid the publishing industry and society by making books, especially hard to find books, more accessible.  However, the argument on the other side is that deal will concentrate too much power in a single entity.  The concern is that Google will gain a monopoly over too many books, especially those whose copyright holders cannot be identified.  The deal gives Google exclusive rights to these books, called orphan works, as Google will have the right to display and sell these books and save any profit for five years in the event the copyright holder appears.  Other companies however will not have this right and would be subject to copyright violation and fines for doing a similar display of orphan works.  Additionally, the Google Book Search system will know which books a user has searched, read and purchased and that could raise privacy issues.


Under the deal, consumers using Google books search will be offered free samples of chosen titles, with the option to buy more.  It will also allow users to download any of the books already scanned into Google’s database. The Book Rights Registry will take payments from Google and (after a fee) distribute them to authors and publishers.  The agreement is similar Apple iTunes music store.  The agreement will primarily target universities and organizations which will pay large subscriptions on behalf of students and researchers.


Google Book Search has accumulated and digitalized around 10 million books so far, though only a small portion of most books in copyright are shown online. Google also accounts for about two-thirds of U.S. web searches and brings in about one-third of the money spent on internet advertising in the U.S.  This activity has drawn attention by rivals and regulators.  Many consider this recent investigation as evidence of efforts by the Obama administration to increase the level of antitrust scrutiny of the technology industry.

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