Evan Schnittman observed it as a smear of light on the fringe of our galaxy, but it took media guru Mike Shatzkin to fully articulate its significance. And significant it is, a possible game-changer in the internecine struggle among authors, publishers, and Google. It has to do with a little-known provision of the US Copyright Act of 1978.

Schnittman, a Vice President of Business Development and Rights for Oxford University Press, mentioned it almost as an afterthought at the end of “There Will Be Disintermediation”, the final installment of a brilliant three part analysis in his Black Plastic Glasses website. “Mark your calendars, folks,” he declares, “the disintermediation begins on January 1, 2013. What happens on January 1, 2013? See for yourself in the US Copyright Act of 1978, section 203. {…Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant…}” [bold print is Schnittman's.]

“What if this change,” asks Schnittman, “was so significant that it could possibly even spawn an industry wide reset of the way we do things?” He leaves us panting for an answer, and Shatzkin provides it:

“It turns out there is a clause in the 1978 copyright law that allows any author to reclaim any copyright despite any contract with a publisher, simply by serving notice. The copyright can be reclaimed no less than 35 years and no more than 40 years from the book’s original publication. So books published in 1978 can be reclaimed by their authors from 2013-2018.”.

“One wonders” Shatzkin ruminates, “how many agents are aware of this law and are preparing for it.”

Actually many agents have been aware of it for years, and a number have invoked it. It’s commonly referred to as the “Widows and Orphans Provision,” because it entitles immediate family members to recover from publishers or certain derivative licensees (like movie companies) the copyrights to works published by a deceased author. (Don’t worry, men, widowers are included!) What some agents may not be aware of is that an author doesn’t have to be dead for the reclamation to take place; he or she simply has to live long enough to take advantage of the provision. For books licensed to publishers after January 1, 1978, the law is effective “thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier.”

What surprises Shatzkin is that Article 203 has not come up in discussions about the Google Settlement, and we owe him and Schnittman a debt of gratitude for placing it on the table.

Until recently we’d have said that (except for a small number of evergreen backlist books) most titles coming up for reclamation under the Act are worth little or nothing. But with Google’s push to monetize old books, even moribund ones may have value either to their authors, their publishers, or Google. As Shatzkin puts it, for some old books “it looks like a new payday has been set up.”

For the full text of Article 203 of the 1978 Copyright Act, click here.

Richard Curtis

Some time ago, the Community for Creative Non-Violence, an advocacy group for the homeless, commissioned a Baltimore sculptor, James Earl Reid, to create a sculpture. In due time, his skilled hands produced a piece called Third World America, celebrating the dignity and suffering of homeless people. It was a work that both the advocacy group and the sculptor could be proud of, and they were. But then, as both began making plans to take it on tour, a question arose that nobody had bothered to explore in any depth: Who owns Third World America? The Community for Creative Non-Violence claimed the sculpture was a “work made for hire.” Not only had the group hired the sculptor, but had also imparted to him its vision of what the piece should look like, and had even given him much input on details. Be that as it may, claimed Reid, he was the sole creator of the work and he should retain the copyright.

The dispute triggered a legal battle culminating in a Supreme Court decision that has important implications for writers. For, if you substitute “publisher” or “packager” for the group that hired Reid, “writer” for “sculptor,” and “book” for “sculpture,” you have a perfectly analogous relationship to one quite commonly found on the publishing scene. Under the “work-for-hire” provision of the Copyright Act of 1976, publishers, packagers, magazines, newspapers, and other persons or businesses may copyright in their own names works that they conceive and “farm out” to freelance writers. Like the Committee for Creative Non-Violence, these parties originate the writing projects, furnish writers with detailed specifications, and offer writers abundant editorial guidance. Are they not, then, entitled to claim ownership of copyright to those works? Are they not entitled to exploit those works in whatever way they wish, with no further obligation to the writers?

Click here to continue.

Richard Curtis

Though it’s generally agreed that Google’s settlement with the Association of Publishers and Authors Guild was fundamentally sound, the New York Times‘s Miguel Helft points out an aspect that has many critics deeply troubled.

For the purpose of explaining it simply, we can divide books into three fundamental categories: 1) Those whose copyright is currently in effect and the copyright owners have been located; 2) Those whose copyright protection has expired and have entered the public domain where anyone may publish them without obligation to the copyright owner; and 3) Those whose copyright is currently in effect but the copyright owners have not been located or have not asserted their ownership.

If you’re in the first category you are afforded a large measure of control and protection including the right to opt out of the Google settlement. By opting out, you retain the right to file your own lawsuit or join a separate lawsuit against Google. If you opt out, you will not be entitled to receive any payments under the Settlement, or take advantage of other Settlement benefits. You must submit your opt-out instruction online or postmarked on or before May 5, 2009.

If you’re in the second and your book has fallen into the public domain there’s not much you can do about it But thanks to the changes in copyright laws starting in the mid-1970s, the ranks of authors who have outlived their copyrights are rapidly diminishing as we shift to protection for seventy years after the death of the author.

That leaves the third category and that’s the one that observers are worried about. Describing them as orphans, Helft explains that as a result of its scanning initiative, Google has become in effect the legal guardian of these millions of abandoned books, which gives Google “virtually exclusive rights to publish the books online and to profit from them.” As a result, “Some academics and public interest groups plan to file legal briefs objecting to this and other parts of the settlement in coming weeks, before a review by a federal judge in June.”

Though every book was once some author’s love-child, many titles in this category may be of little literary, commercial or academic merit. Yet, who’s to say? One scholar’s trash may be another’s treasure, and the scholarly community is loath to give Google the right to make that judgment. This provision of the settlement may therefore be modified when the 134 page document comes before a court for approval in June. Robert Darnton, head of the Harvard University library system, makes no bones about it: “Google will be a monopoly,” he declares.

Needless to say, Google takes a very different view. “This agreement expands access to many of these hard-to-find books in a way that is great for Google, great for authors, great for publishers and great for readers,” Helft quotes Alexander Macgillivray, the lawyer who represented Google in the lawsuit.

Authors in the third category do have a remedy. Google is creating a Book Rights Register, which will be co-administered by authors and publishers, that will enable rights holders or their heirs to claim their orphaned books and collect any money that Google’s exploitation has earned for them – less Google’s 37% commission.

So, calling all authors or their heirs: visit http://books.google.com/ and enter your name in the Search box. If any of your books are there, review the copyright status of your books. If they are still legally protected by copyright you may elect to opt out out of Google’s offer to make them available in their program. If you keep them in the program you may earn a little money from Google’s exploitation of your publication rights. But you also you run the risk of having your book converted into formats that are competitive with those in existence or that might come into existence; and after Google takes its cut you will end up with a fraction of the value you might otherwise earn.

RC

My first encounter with the term “fair use” scarred me for life.

I was an apprentice literary agent and one of the agency’s authors had quoted, without permission, a single line of a poem composed by a late distinguished man of letters. We received a major lawyer letter from the poet’s estate threatening to sue our author’s sorry behind into fine fragments for appropriating a copyrighted work without permission or payment.

I was instructed by my boss to tell the lawyer that the author had every right to publish the line on the grounds of the doctrine of fair use. And where, we asked, did this lawyer get off claiming that a single line of verse violated the doctrine? Whereupon I received an even more vitriolic letter threatening to name me and my boss in what would be the mother of all infringement lawsuits. The gist of the lawyer’s position was something like this: “If you put a thousand authors in a room for a thousand years, none of them would remotely be able to write that deathless line.” And you know what? I think he was right. That line was as inspired as Robert Frost’s “Whose woods these are I think I know” or Dylan Thomas’s “Do not go gentle into that good night.”

The flap was settled with a generous permission fee and the author’s behind lived to sit another day.

I was reminded of this incident by an article by Brian Stelter in the New York Times about the thin line that bloggers walk when they extensively quote other people’s work. “Some media executives are growing concerned that the increasingly popular curators of the Web that are taking large pieces of the original work — a practice sometimes called scraping — are shaving away potential readers and profiting from the content,” writes Stelter.

Though reputable bloggers are usually unstinting in linking and giving credit to the writers and publications whose work they quote, the revenue accruing to the quoted publications is negligible, even when the blogsite is a high-traffic one such as Huffington Post or Google News that can be expected to send a certain number of visitors to the original source. Now, those original sources are getting cranky about underwriting the salaries of editors and journalists, generating original story ideas, conducting research and fact checking and legal diligence only to see bloggers step in and collect the credit, traffic and revenue. Says Stelter:

“Copyright infringement lawsuits directed at bloggers and other online publishers seem to be on the rise. David Ardia, the director of the Citizen Media Law Project, said his colleagues kept track of 16 such suits in 2007. In 2004 and 2005, it monitored three such suits each year. And newspapers sometimes send cease-and-desist orders to sites that they believe have crossed the line.”

As my author learned to his regret, US Copyright Law does not define fair use in terms of words, lines, sentences, paragraphs or pages. The test is more amorphous and calls on a variety of qualitative and quantitative tests that are not consistent or dependable. In the ambiguous universe of Fair Use, the first eleven words of Allen Ginsberg’s famous poem “Howl” (“I saw the best minds of my generation destroyed by madness”) may carry as much legal weight as hundreds of words lifted from a tome of lesser distinction.

Stelter’s article, Copyright Challenge for Sites That Excerpt, examines efforts to create a conduct code that navigates between legal, responsible citation and unabashed scraping. One important criterion cited by Arianna Huffington is whether value is added by bloggers to texts they cite in their columns and comments. If a blogger can spin borrowed material in a way that creates fresh insights, the way a jazz musician riffs on someone else’s tune, that spin may arguably be defensible. On the other hand, in Huffington’s code verbatim appropriation without enhancement would be harder to justify.

Of the 1256 words in Mr. Stelter’s Times article, I have used 101. I have cited him and the New York Times as the source, and linked to his article. Have I fairly used his material? Have I added value to his work? Or will I be getting a lawyer letter from the newspaper’s legal counsel? Do I deserve to? And those lines from Frost and Thomas? Is my own behind in jeopardy for having quoted them without permission or fee?

Your guess is as good as mine. And that’s as good a definition of fair use as any I’ve heard.

Richard Curtis

If the New York City subway system has no practical means of delivering cell phone service in its tunnels, why are so many subway travelers gazing so intently at their cell phone screens? In all likelihood they’re reading one of the 1.5 million books that Google has just made available for download into such devices as the iPhone and the T-Mobile G1. The books are all public domain titles, meaning their copyright protection has lapsed. This according to Miguel Helft of the New York Times.

Amazon, too, is adapting its Kindle e-book library for distribution on mobile phones. Though the Kindle selection at about 230,000 titles is a fraction of Google’s, Helft thinks that “the public domain books available through Google Book Search are not likely to be the most popular titles, as they are older books for which copyrights have expired. In contrast, the Kindle library includes scores of newly released books, including many current best sellers.”

I’m sure many bibliophiles will take passionate exception to Helft’s suggestion that newer is better, and it will be fascinating to see how many obscure titles are downloaded – and which ones.3

Google’s scanning initiative drew a lot of fire, indeed a major lawsuit. The suit is behind us (settled), and we can look forward to counting 1.5 million blessings as this flood of displaced literature settles over us like a delicious blanket.

In his statement about the lawsuit settlement, Sergey Brin, co-founder and president of technology at Google declared,

“Google’s mission is to organize the world’s information and make it universally accessible and useful. Today, together with the authors, publishers, and libraries, we have been able to make a great leap in this endeavor. While this agreement is a real win-win for all of us, the real victors are all the readers. The tremendous wealth of knowledge that lies within the books of the world will now be at their fingertips.”

RC

Here’s another brief bit from one of my favorite blogs, TechCrunch. Although the Kindle, Amazon.com’s brand-new e-book reader (about which we have blogged extensively) sells books in the proprietary, locked MobiPocket format, the writer points out how easy it is to download book files from any of the myriad BitTorrent sites (where all those illegal file copies–music, movies and, yes, books, too–can be found if you’re not worried about being tracked by the RIAA or any of the other organizations dedicated to chasing after data thieves).

Now, there are a number of sites, like Project Gutenberg, where files exist for any number of out-of-copyright/public domain titles. These files can be downloaded for free and used as the reader chooses. They are often posted in multiple formats like .txt (Text only), .pdf (Adobe Reader), .doc (Microsoft Word) and .Lit (Microsoft Reader). The Kindle can read text and Word files and the other two are easily converted into one or the other of these formats and they can then be added to the Kindle via the dedicated email address that comes with every Kindle account.

However, the BitTorrent sites have files for lots of books, including plenty of brand-new copyrighted titles, that can be downloaded just as easily, converted to whatever format seems best and loaded onto the Kindle via that same email address.

It’s easy. It’s quick. It’s convenient. It’s free. It’s also completely illegal–but we haven’t seen that stopping too many music collectors or movie fans now, have we? Are book readers more honest and law-abiding than music and movie fans? There’s no real way to know until some deep-pocketed publisher, or a publishers enforcement organization, starts tracking downloads and suing everyone in sight. Perhaps it won’t come to that but Amazon has given all those downloaders a way to put their files, legally obtained or otherwise, on a handy portable reading device.

Maybe that Attributor story I did a while back, the one about a company whose service tracks content appearances on the net, begins to make a lot more sense. I wonder what they charge?

- John

There was a fascinating piece of news published a week or so ago. I stumbled onto it in a link to a site called “Stuff” or, more properly, stuff.co.nz, which means, according to my understanding of these things, that the site is registered in New Zealand.

The gist of the story is that a Harry Potter fan, George Lippert by name, wrote a story involving Harry Potter that takes up after the end of the final book in J.K. Rowling‘s massively successful seven book Harry Potter series, Harry Potter and the Deathly Hallows, and then posted his story on his own website.

Now, there’s a long underground tradition of what is referred to as “Fan Fiction.” Essentially, fans of a given book or movie or TV series use the characters and settings from their favorite, or favorites if they’re feeling extra-frisky, and write original adventure stories that fall outside the established (read “published” or “broadcast”) canon. In these stories, almost anything can happen from romances to marriages, from wild adventures to cross-species mating. I first heard of this sort of thing in association with the original Star Trek TV series back in the 1960s and I think that may even be where a lot of the ideas for this sort of thing originated since there don’t seem to be too many examples that pre-date that time.

The trick with all of this, of course, is that the various media franchises from which these fan writers “borrow” the characters and settings are owned by large media entities who have shown, on occasion, a tendency to be highly litigious in order to protect the value of the properties they control. In a lot of cases, these corporations may be aware of the existence of these unauthorized stories and simply turn a blind eye as long as they don’t see the fan writers doing anything ambitious like printing and selling copies of their stories. Think of it as some dirty little secrets that aren’t really secret and probably aren’t all that dirty either.

The interesting news part, though, is that J.K. Rowling herself has taken a public position and said that she won’t be suing anybody who writes Harry Potter stories as long as they don’t sell them and as long as they make it clear that Rowling is not herself personally involved in the stories. That’s more than a bit of a leap past the point of turning a blind eye and strikes me as, if not revolutionary, at least generous-hearted and benign. From all I’ve seen over the years, that doesn’t surprise me about her but I do tend to wonder what her publishers and her movie production company think about her decisions to say in public what they’ve only really ever allowed “under the table,” so to speak. The photo that leads this story is from that “Stuff” story link and I can’t help but think that the smirk in her expression is the result of feeling the power she now has to make large entities smile and do what she wants–and more power to her.

- John

I was doing a Google search on the subject of ebooks (no surprise!) and I stumbled onto esnips.com. It’s a site that offers free online storage for up to five gigabytes worth of your electronic files—music, photos, art, texts, whatever. All you have to do is provide an email address and sign up and you’re good to go. You can upload files, make them public or private, share them with friends or business associates, look at and/or download other people’s files and, in general, share: your knowledge, your esthetic eye, your taste, your humor, your whimsy.

It seems as if these sorts of things are proliferating madly. Since I keep an eye on the online world for reasons both personal (plain curiosity among them) and professional (I do most of my work online, one way or another), I’m aware of a current business phenomenon called Web 2.0. There are many, many startup companies these days that are convinced that if they can come up with the perfect combination of tools and services they will be able to attract millions or tens of millions of participants (read: customers) who will join their site, visit regularly and spend lots of time, recruit their social groups to use the site as a meeting place, etc., etc. Since no one is asking you to pay for that online storage space, for hosting your personal website (MySpace, FaceBook, and on and on…) or for whatever else it is that the site might do, you have to wonder who is paying for it all and the answer is, often enough, advertisers eager to put their products in front of your eyes and willing to pay for that opportunity. But I digress…

Ebooks are what got me started and they’re the ostensible subject of this blog so that’s where I’m getting back to. The source that turned me on to the site specifically mentioned ebooks as one of the things you were likely to find a lot of on the site, worth a browse to see what you might find that would be of personal interest. I did some scouting around and I found an item or two of interest, including some short stories posted by other members, a couple of titles by H. G. Wells, including The War of the Worlds as a PDF file, including a link to yet another site, planetpdf.com, which I had not previously been aware of. On the main page of that site was a link, which took me to a page offering a sampling of ebooks in PDF file format: Free PDF eBooks.

I was about to get all bent out of shape about copyright issues on esnips.com (lots more on that in another posting sometime soon) when I saw J.R.R. Tolkien’s name several times and assumed that someone had posted unauthorized copies of his still-in-copyright works but I was happily surprised to note that the files were marked as having been flagged by other users as suspect and were under review before being made available. A self-policing system that seems to work—good stuff. Of course, there were some other items where that nasty copyright issue might have been more pertinent and the prose section (small though it is in these early days) seemed to be well-supplied with MP3 files of songs, a bit of a stretch in classification terms, but the wonderful, horrible thing about volunteer labor, which all of these sorts of sites live and die by, is that you get what you pay for and quality of thinking and organizational ability can end up somewhere on the low end of the scale.

Of course, what we want you to do is buy E-Reads ebooks. Even though we don’t have Tolkien titles available, we do have quite a selection of material by a very diverse group of authors and we’re hoping that this blog will pique your interest just enough to get you to come and browse. I practically guarantee you’ll find something you want to read and own. Just glance around on the page you’re reading, click a link or search for an author name or book title to see what we have. At least we’ve got everything pretty well organized and we guarantee to solve your problems if you have them with any of our products—but, then, we’re not giving them away for free.