The CopyKat.

The decade-long legal fight over Google’s effort to create a digital library of millions of books is finally over ... the Supreme Court has declined to hear a challenge from authors who had argued that the tech giant’s project was ‘brazen violation of copyright law’ — effectively ending the legal battle in Google’s favour. Without the Supreme Court taking up the case, a federal appeals court ruling from October, which found that the book-scanning program fell under the umbrella of fair use, will stand.” More here

Getty Images has filed a formal antitrust complaint with the European Commission about Google image search. According to reports, Getty claims that high-resolution Google image search results, “scraped” from its customers’ sites, are “siphoning traffic and profits from photographers.” Getty argues, because people can view high-quality versions of its photos in image search results, consumers don’t need to click through to publisher sites, and traffic and revenues are suffering accordingly.  Google and Getty Images had been in talks for some time over Getty’s concerns about high-resolution images in Google image search. However, Getty says that Google ultimately told the company to “accept the new image format or opt out of image search”. According to the Financial Times Getty said it felt coerced by Google’s market power into participating. Something it clearly now regrets doing. More here.

According to the IFPI's head of anti-piracy, calling illegal downloading "piracy" has become somewhat of a negative. The problem is that the concept of piracy is, well, just too 'romantic' and exciting. What's not to like about Pirates of the Caribbean (well quite a lot BUT the franchise got Keef in it). Graeme Grant is suggesting a name change -  but can simply changing the name of something really change the beast?

Baroness Lucy Neville-Rolfe, the UK's Minister for Intellectual Property, has confirmed that the British government is leaning toward the idea of increasing the sentence for online piracy,  to bring it into line with that for physical infringement: “Last year the government consulted on increasing the maximum term to 10 years. We received over a thousand responses, which have played a significant part in helping to shape the discussion” she said.

Baidu, China’s largest search engine, has signed a formal agreement with the United Kingdom concerning the platform's management of intellectual property rights. There are no clear details of the new Memorandum of Understanding about IP infringement, except that the signing was witnessed by Dr Ros Lynch, Director of Copyright and Enforcement at the UK Intellectual Property Office, who is currently in China to promote UK-China copyright week, and that also attending were Baidu president Ya-Qin Zhang and Robin Li, Baidu’s co-founder, chairman and CEO of Baidu. The MoU concerns ‘Copyright Protection Collaboration’. We await details in the next IPO China newsletter! More here!

Republican Congressman Bob Goodlatte has put out a statement and a video claiming that the House Judiciary Committee which he chairs is finally ready to start releasing some proposals in response to US Copyright Registrar Maria Pallante's call for Congress to create the "next great Copyright Act". Goodlatte says he is currently focussing on reforms where there is consensus, saying: "In the weeks ahead, we will identify areas where there is a likelihood of potential consensus and circulate outlines of potential reforms in those areas. Then we will convene stakeholders for further work on these potential reforms.  And you have my personal commitment that as the review shifts to more focused work on potential reforms, the process will be transparent and the Committee will continue to ensure that all interested parties have the opportunity to weigh in on issues of concern to them. Our copyright system deserves no less." and "...it is critical that Congress understand the overall impact of any changes in copyright law before proceeding with formally introduced legislation. It is also clear that neither a solely copyright owner focused bill, nor a copyright user focused bill, could be enacted by Congress today, nor should they be. Goodlatte said that the review of the country’s copyright law, which included 20 formal hearings as well as public roundtables in Nashville, Santa Clara and Los Angeles, helped "develop a comprehensive record of the issues facing the American copyright system today.” TechDirt has its own opinion here and more on MusicWeek here.

The CopyKat - the Dung Beetle is back - and its angry now

Miriam Elia, the artist who was threatened with legal action by Penguin for a humorous book introducing children to the art world in the style of the Peter and Jane readers from the 1960s and 1970s has taken satirical revenge, after the publisher announced its own series of humorous retro titles based on the Ladybird books, telling the Guardian that when she realised Penguin had stolen her idea she was "a little angry" but rather than slinging insults on Twitter she  thought she would create a ‘satirical Ladybird book’ about the situation with "We Sue an Artist", her "Dung Beetle guide to corporate intimidation".  Our September 2014 Blog on this can be found here.

In China, the State Administration of Press & Publications, Radio, Film & Television (SAPPRFT) has announced several measures to tackle illegal copying and recording of films in cinemas. Technological analysis will be used to trace the time and venue of illegal recordings, and more education and training courses will be provided to raise IP awareness. The excellent China IP newsletter from the IPO, the British Embassy in Beijing and UK Trade and Investment points us to the SAPPRFT website.

Online radio provider Pandora is to pay out some $90 million to the three major record companies, Universal, Sony and Warners, along with ABKCO, as payment for use of pre-1972 recordings. In June, Sirius paid $210 million to resolve a long-running lawsuit over its broadcast of older tracks. Pandora will pay $60 million for the use of recordings through 2015, and another $30 million to cover through 2016. Last year, recording companies filed a lawsuit in New York State Supreme Court in Manhattan, accusing Pandora of violating the state’s copyright protections by using recordings of older songs without permission. The move followed the success of Flo & Eddie (The Turtles) in garnering copyright protection for sound recordings under state laws in both New York and California - although they failed to convince a judge in Florida on the same arguments.

Having sent a cease-and-desist letter to Donald Trump, asking the Republican presidential candidate to stop using “Dream On” during his campaign, Aerosmith frontman Steven Tyler has now penned an open letter explaining his views on U.S. copyright laws — and how they need to be rervised (from the perspective of a very successful long term recording artiste methinks!). “My intent was not to make a political statement, but to make one about the rights of my fellow music creators,” the singer writes in his open letter, first published on Huffington Post. “But I’ve been singing this song for a while now” adding his campaign was "to make sure that songwriters and artists can practice their art without threat of extinction. "To make sure those who practice their craft get paid fairly when others use their work" and The laws need to change. We have so many laws in America that control how we get paid for our music. Seventy-five percent of songwriters' income in the U.S. is regulated by the government? Too much government intervention in art and music is a bad thing." Image from wikicommons.

The European Commission has no plans to weaken copyright, but wants a "targeted" and "balanced" reform with concrete benefits for consumers and right holders. That's according Gunther Oettinger, the member of the European Commission with responsibility for the Digital Economy and Society, speaking at the Frankfurt Book Fair.


The saga of 'Happy Birthday' in the USA isn't over by a long shot. Not only do the current plaintiffs want the court to give a clear statement over the status of the copyright protection (or in their view lack of copyright protection) attached to the song, the matter remains of the millions of dollars paid to Warner/Chappell by licensees who wanted to use the song.  But Warner/Chappell hasn't given up either .... the music publisher is seeking Judge King's reconsideration of his September ruling, in particular, they disagree with King's interpretation of a 1940s agreement between Summy and the Hill sisters, and, as an alternative, has requested permission to file an immediate appeal. More on this on the Hollywood Reporter here.

Over on the IPKat, Eleonora tells us that he US Court of Appeals for the 2nd Circuit has delivered its judgment in the Google Books case and has confirmed the decision of Judge Chin -  that the scanning activities of Google within its Library Project are to be considered a fair use of copyright works.

And finally, A federal court jury in Nevada has ordered a Las Vegas-based software maintenance firm and its chief executive to pay just over $50 million in damages to technology giant Oracle in a copyright infringement lawsuit. Oracle had sought nearly $246 million in damages. The verdict against Las Vegas-based Rimini Street Inc. and CEO Seth Ravin followed a two-week trial in U.S. District Court in Las Vegas. It focused on copies of J.D. Edwards and Siebel-branded Enterprise software. Ravin was found jointly liable for $14.4 million of the $50 million figure. Rimini Street has filed a separate action against Oracle asking the court to confirm that Rimini Street's new processes for it's PeopleSoft update development do not infringe on Oracle copyrights.

Judge Chin Appears to Bolster Google’s Fair Use Claim

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In the latest chapter of the Google Books saga, Judge Denny Chin has given Google some cause for optimism.

As regular readers of the 1709 Blog will remember, the Authors Guild sued Google in 2005 over its plan to digitize more than 20 million books. The Authors Guild maintains this infringes copyright in many works, but Google counters that the reproduction of copyrighted material is fair use. Google claims that their digitization provides great benefit to the public and researchers, that there is no evidence of market harm to copyright owners, and that their use is transformative as it only allows consumers to access “snippet” views of copyrighted material. In July 2012, after a controversial settlement plan failed, the parties filed cross motions for summary judgment. On Monday, the US District Court in New York heard the oral arguments.

It took Judge Denny Chin only 40 minutes to hear the arguments, and during this time he appeared to favor Google’s fair use claim. Chin repeated the many public benefits that Google Books provides, noting that even his law clerks use it to perform citation checks. He also acknowledged amicus briefs from libraries and humanities professors that support the benefit the project has for researchers. Given these arguments, he posed a question to Author Guild attorney, Ned Rosenthal: “aren’t these transformative uses, and don’t they benefit society?” When Rosenthal argued that the project may lead to lower compensation for authors, Chin noted examples where people had bought works after finding information about them through Google Books. When Rosenthal argued that this was a matter for Congress, Chin quipped: “[d]oes anything get done in Congress these days?” He later followed this by asking Rosenthal: “[w]hat are you suggesting? That I don’t decide…and wait for Congress?”

The case now appears, after eight long years, to be heading towards resolution.  

Some French fresh air to the Google Books project

Fans of the Google Book Search Project were perhaps left a bit disappointed when last year Judge Denny Chin rejected the US Search Settlement Agreement, which Google had concluded in 2008 with the Authors Guild and the Association of American Publishers. The Judge urged, among the other things, that the settlement be revised from opt-out to opt-in. Following the ruling, the parties started new negotiations, but an agreement has not been achieved yet.

Contrary to the situation in the US, yesterday the Syndicat National de l'Edition (SNE, the French Publishers Association) and the Société des Gens de Lettres (an authors' group) put an end to a six year long running litigation against Google, over its project of digitising out-of-print books (see press coverage of the litigation here and here).

As clarified by The Wall Street Journal, this is the last lawsuit to be dropped, as last year other publishers settled their own cases.

The parties, reports The Financial Times, concluded a framework agreement under which French publishers can strike their commercial arrangements individually with Google, which will exchange information with publishers instead of scanning French books without consent. As explained by Monsieur Gallimard, SNE's chief executive, this means that "now it’s up to every publisher to decide if they want or not, to sign a framework agreement with Google in line with copyright laws" [the agreement is therefore opt-in]

According to The New York Times, the settlement achieved yesterday is modelled on previous agreements that Google concluded separately with French publishers Hachette Livre and La Martinière. In particular, these agreements allowed publishers to retain control over many conditions of the book-scanning project, including which titles were to be made available. 
In the framework of the deal struck yesterday, French publishers and authors will be able to sell digital copies of the books Google has scanned so far, with Google enjoying a share of the revenues. 

Young French publishers celebrate the settlement 

Apparently, to make all this possible, Google "coughed up an undisclosed amount of cash to sweeten the deal" and, as part of the agreement, it "will financially support the creation of a database of works for authors and rights owners, as well as a youth-reading program", explains The Wall Street Journal.

As declared by the head of Google Books France, Monsieur Philippe Colombet, "our hope is that these pathbreaking partnerships will help jump-start the emerging French electronic book market". Apparently, the EU market for ebooks has been held back, among the other things, by disputes over rights, explains The New York Times.

Although this agreement will "put France ahead of the rest of the world in bringing long lost out-of-print works back to life”, Google clarified that yesterday's settlement is not going to affect the outcome of the ongoing US litigation. However, there is hope that this may add positive momentum to the Google Books project in general. This is because, said Monsieur Colombet, "Google is open to a variety of agreement options in the US, including deals like this one".

Overall, this outcome is to be welcomed. Indeed, these are exciting (or worrisome, depending on the perspective one wishes to adopt) times for the book industry. In any case, it is time for a change. Business models are evolving and the chances offered by digitisation of contents are not to be missed. It seems that attention of both private parties and legislators (just think of the ever-growing interest in orphan works and out-of-print books, on which see earlier 1709 Blog post here) is now directed at understanding how these opportunities can be seized. This requires a bit of courage and – at the end of the day - a Non, je ne regrette rien-like attitude.