Top 10 Copyright Myths For Photographers

Here's another 10-10-10 Top Ten list. This time, it's for image creators and photographers. You've heard these lines from your clients. It's time to dispel these common myths.

1. You must register with the U.S. Copyright Office to get a copyright ... FALSE.

2. The image must be registered with the U.S. Copyright Office to sue for copyright infringement ... FALSE.

3. You must be a U.S. citizen to register a copyright in the USA ... FALSE.

4. Copyright can protect my ideas ... FALSE.

5. A "poor man's copyright" (mailing a sealed copy to yourself) is the only registration you need ... FALSE.

6. If you don't defend your copyright, you lose it ... FALSE.

7. It can still be a "fair use" when someone makes money from the image use ... FALSE.

8. If an image is old, it cannot be copyrighted ... FALSE.

9. Copyright infringement is not a crime ... FALSE.

10. If you give an image to your client, they can use it for whatever they like ... FALSE.

These points are over simplified. Check out more thorough explanations at in the comments section of this post.

(Note: This is not written by a lawyer, and this is not legal advise. Do consult a lawyer to get legal advice concerning copyright. This list suggests common misinformation about copyright and is not a definitive list.)

Top 10 Copyright Myths For Image Users

10-10-10. October 10, 2010 is a unique, once-in-a-lifetime date. A great excuse for a Top 10 List!

Here are the top ten copyright myths for image users. Professionals and amateurs alike make these mistakes, which can be costly.

1. If an image has a Creative Commons license, you can do whatever you want with it ... FALSE.

2. Images found on the Internet are free to use ... FALSE.

3. It's OK to use an image for free as long as you give proper credit ... FALSE.

4. Modifying an existing image creates a new image that you can claim as your own ... FALSE.

5. It's OK to copy part of an image as long as you don't use the entire image ... FALSE.

6. If an image doesn't have a copyright notice (i.e., the "©" symbol), it's in the public domain and can be used for free ... FALSE.

7. If you paid to use an image, you own it ... FALSE.

8. It's OK to use someone's image as long as you don't make money with it ... FALSE.

9. Once you remove the image from your web site, you don't have any liability ... FALSE.

10. If you can't find the copyright holder, you can use the image for free ... FALSE.

These points are over simplified. Check out the comments for more thorough explanations.

(Note: This is not written by a lawyer, and this is not legal advise. Do consult a lawyer to get legal advice concerning copyright. This list suggests common reasons why some people violate copyright and is not a definitive list.)

Web Sites Seized For Copyright Violations

On June 30th, U.S. authorities executed seizure warrants against nine domain names of web sites that were providing first-run movies. Assets of 15 bank, Paypal, investment and advertising accounts were also seized. And, four residential search warrants were executed.

This is a significant development - seizing web sites that are (allegedly) exploiting the copyrighted property of others. So, what would happen if this emerging willingness to defend the copyrighted value of high-cost movies were applied equally to low-cost photos?

Almost every web site uses images. Some estimates say there are 100 stolen images for every one that is legitimately licensed. What would happen if the search engines, Internet Service Providers and device manufacturers who are making countless profits by enabling access to stolen Intellectual Property ... what if they could seriously risk losing their domains as a result of distributing copyrighted images without authorization? The answer is that many billions of dollars would shift back to image creators and rights holders.

The domain seizures are part of "Operation In Our Sites," a new initiative by the U.S. Immigration and Customs Enforcement (ICE) and the U.S. Attorney for the Southern District of New York (SDNY) that is aimed at countering Internet counterfeiting and piracy.

"ICE and our partners at the National Intellectual Property Rights Coordination Center are targeting pirate Web sites run by people who have no respect for creativity and innovation," said ICE Assistant Secretary Morton, who was in Southern California to meet with the leaders of the movie industry. "We are dedicated to protecting the jobs, the income and the tax revenue that disappear when organized criminals traffic in stolen movies for their own profit."

"Criminal copyright infringement occurs on a massive scale over the Internet, reportedly resulting in billions of dollars in losses to the U.S. economy," said Preet Bharara, the U.S. Attorney for the Southern District of New York, whose office handled the seizure warrants of seven domain names Wednesday. "That translates into lost jobs and real hardships for ordinary working people. That's why we took the actions we did. If your business model is movie piracy, your story will not have a happy ending."

Click here to read the full report by government agencies entitled, "'Operation In Our Sites' targets Internet movie pirates ICE, Manhattan U.S. Attorney seize multiple Web sites for criminal copyright violations".

Corbis Sygma Declares Bankruptcy In France

L'Agence Sygma, the renowned French photojournalism agency that was bought by Corbis a decade ago, has declared bankruptcy in response to a court judgment that found the agency liable for lost images of a photographer. But the storied history may not yet be over for this famous agency, which was renamed Corbis Sygma. The decision to declare bankruptcy rather than pay the court judgment raises many questions for former Sygma photographers whose images, in some cases, could continue to be stored or licensed by Corbis Corporation, the USA-based parent company for its French subsidiaries, Corbis Sygma and Corbis France.

In its article entitled "Photojournalism Agency Sygma In Receivership", Agence France Presse (AFP) reports that Corbis Sygma declared itself insolvent (bankrupt) following a court award of about $1.84 million to photographer Dominique Aubert, who created images from 1987 to 1995 for licensing via Sygma. The court concluded that 750 of his 250,000 images had been lost by the photo agency.

AFP quotes Stefan Biberfeld, the managing director of Corbis Sygma, as saying "It is impossible to pay my creditors". Corbis Sygma has lost money each month for ten years, losing 2 million Euros in 2009 with a total loss of 73 million Euros since Corbis Corporation acquired L'Agency Sygma in 1999, according to Mr. Biberfeld. As a result of the bankruptcy, Corbis Sygma's 29 remaining staff have been fired. Corbis Corporation is owned by Microsoft founder Bill Gates.

It is perhaps ironic that the court judgment is the result of the appeal by Corbis Sygma of an earlier court decision, which awarded a reported 102,000 Euros to Mr. Aubert, less than one-tenth of the current judgment. Mr. Aubert's accomplishments while with Sygma included his coverage of Afghanistan and Lebanon and winning World Press and other awards. His complaint began about 8 years ago. After leaving Sygma, Mr. Aubert became an airline pilot, where he has been employed during much of the appeals process.

In excerpts from a statement by Dan Perlet, the Director of Communications for Corbis Corporation, Corbis said, "We have attempted to bring lost images cases to a fair and reasonable conclusion. However, in a recent lawsuit by a photographer in France, a court awarded damages against Sygma for 1.5 million Euros, an amount that is immensely disproportionate to the revenue opportunity with the images. Given this legal decision, previous decisions, and other likely future lawsuits, we have come to the conclusion that it is no longer possible to maintain Sygma ... We have communicated to our French clients and plan to continue to serve our advertising and marketing clients normally, as well as select media and publishing clients. This has no impact on operations outside of France. We are also working to continue our preservation efforts for the photography, including maintaining the Sygma Access and Preservation Facility, and will continue to offer a Sygma photo collection on the Corbis website."

Speaking through his attorney, Dominique Aubert objects to the characterization that he is responsible for the bankruptcy of Sygma, pointing out that the large judgment is not only for the lost photos, but also for the unauthorized copying and licensing of 1,000 of his images via a Corbis web site. He breaks down the judgment as being 1,299 Euros for each lost original select image plus 199 Euros each in punitive damages, combined with 399 Euros for each image that was scanned and placed online without permission. (1 Euro = about $1.20.)

The attorney's statement says in part, "Contrary to what Corbis Sygma contends, Dominique Aubert never asked for the return of his photographic works. He simply sought compensation for the loss of more than 750 original photos ('red dots'), including unique stories in Afghanistan, the loss of which definitively prohibits any use of his work, and for acts of infringement arising from the exploitation without his authorization of more than 1,000 of his other photographs on the Internet."

(Via his blog, Michel Puech has tirelessly provided the most in-depth coverage of recent French news photo agency events, including a detailed, moment-by-moment summary of the Sygma bankruptcy and a chat with Sygma founder Hubert Henrotte. Michel Puech's blog is one of the sources for this article.)

The history of Sygma has been a colorful one. The agency was founded in 1973 by Hubert Henrotte who led a group of dissatisfied photojournalists to split off from Gamma agency. Ownership changed hands a few times in the decades that followed Sygma's rapid rise. In 1987, 25% of Sygma shares were even owned by British publishing tycoon Robert Maxwell who later died mysteriously at sea and who was rumored to have been an Israeli spy. After Corbis bought Sygma in 1999, management had a difficult time with both its revenue and its photographers. Protests, strikes, resignations, firings and law suits have marked the 11 years since the acquisition by Corbis.

In the Corbis Sygma bankruptcy, a big unknown variable is the future status of the Sygma Preservation and Access Facility, located in Garnay, 45 minutes from Paris. Launched in 2009, Corbis paid many millions of dollars over several years to establish the this state-of-the-art, archival repository. (There is a "must see" video and promotional piece that Corbis produced about the Sygma facility.)

When asked about the status of this facility, a public relations person for Corbis Corporation explained that the Sygma facility is operated by Corbis France, which has 15 employees and which will continue to operate. Corbis intends to maintain the facility and preserve the work represented by Corbis Corporation. Some work is represented by the liquidator in France (as a result of the Corbis Sygma bankruptcy), and Corbis is working with the liquidator to determine the best way to either preserve that work or return it to those photographers who have requested it. (A logical interpretation of this would be that photographers should formally request the return of their images if they want them back. See the contact information further below.)

This Sygma Facility undoubtedly contains many "red dot" original select images (the best of the best) for Sygma and Corbis photographers. Since, in some instances, Corbis Sygma opted not to return all images that photographers requested when it was fully operational, it seems reasonable to assume that Corbis Corporation will not want to pay to return images post-bankruptcy. Reportedly, Corbis Sygma has up to 10 million images from up to 10,000 individual photographers. 876 of these have a contract with Corbis Corporation and are paid from the U.S.. (See the report by Michel Puench.)

Corbis France wants to continue to use the Sygma facility, which houses images related to a mix of various contracts and rights holders of various nationalities. It is possible that the French courts and government could have a strong opinion about the responsibility and outcome of co-mingling storage of images by an American parent company and its two French subsidiaries, one of which is bankrupt.

It is unclear what has or has not occurred since so little is publicly known. Amplified by this uncertainty, the Corbis Sygma bankruptcy raises many questions. For example, it is unclear to what extent Corbis Corporation might be held responsible for the past actions and obligations of Corbis Sygma, for the return of images under its control, or for future sales via Corbis of images that were formerly at Sygma.

Broadening the considerations, hypothetically, could a parent company from one country use contracts to shift benefits away from one of its wholly-owned subsidiaries in a different country, then bankrupt that subsidiary to eliminate its liabilities, and subsequently resume sales in that same country and elsewhere via a different subsidiary or other channel? And in the global age of the Internet, what role would the country of location of e-commerce servers play in all this?

There are many questions that could be raised as Sygma evolves into what might be its final phase of existence. The answers could conceivably have far-reaching implications for international trade agreements and business practices of cross-border conglomerates in the media space. At a minimum, it will surely be of great interest to the photo community.

For Photographers & Claimants

Over time, the Sygma archives have included images from Tempsport, Saba, Outline, Kipa, Stockmar, Apis, Universal Photo, Interpress, Spitzer, Reporter Associes, as well as from thousands of photographers. For photographers who would like to request the return of their images or anyone who has a claim against Corbis Sygma, you will likely need to formally file that claim with the French court. Nothing has yet been established for this purpose. But, a logical place to start is with these two points of contact.

The same court appointed administrator who handled the Gamma bankruptcy has been assigned to handle the Sygma bankruptcy. This court administrator, Mr. Stephane Gorrias, would likely be a good first contact for claims. If he is not ultimately assigned this task, he will likely know who else to contact and what procedure to follow. (In Gamma's case, the company emerged from a Chapter 11-type bankruptcy when a reorganization plan was presented by an early shareholder at Gamma, François Lochon, and accepted by the court. For Corbis Sygma, this is a total bankruptcy with, perhaps, no recourse.) To contact the administrator:

Stephane Gorrias
1 Place Boieldieu
75002 Paris, FRANCE

For American photographers and those who once worked from Sygma's U.S. offices or those with contracts with Corbis Corporation or Corbis France, it probably would be a good idea to make the same request of Corbis. One option is to address your letter to the Corbis Legal Department and fax it to (206) 373-6100 or mail it to:

Corbis Legal Dept.
710 Second Avenue
Suite 200
Seattle, WA 98104 USA

(Editor's Note: This information is preliminary and may not be accurate. Seeking legal advice is always advisable on such matters. This is not legal advice. It's possible that there is not any action that will result in a desirable outcome since it is, after all, a bankruptcy. Some quotations and text in this reportage are translations from French and may not be perfectly accurate. And finally, the opinions expressed are not necessarily those of the author or publisher.)

Registration Counts At ASMP Copyright Event

Held at the posh New York Times Center auditorium, the American Society of Media Photographers (ASMP) flawlessly executed its public discussion of copyright under the banner of "Registration Counts". Speakers made copyright-related presentations to more than 300 participants. A few key points at the all-day event ...

Victor Perlman (ASMP's General Counsel) framed the meeting by retelling the history of copyright, citing the U.S. Copyright Acts of 1790 and 1976 as pivotal moments. Mr. Perlman concluded there are three viable options that adequately address the need to stabilize photographer revenues for digital use: Compulsory licensing, Collective licensing systems, and a Tax on access (such as an Internet tax).

Brian Storm (founder of MediaStorm) stressed that traditional photojournalism is alive and well on the Internet in the form of compelling multimedia story telling. He further emphasized the importance of social media for branding and marketing, including RSS feeds, newsletters, "forward to a friend" and "share" functionality, joining affinity groups and content posting to services like Facebook and Twitter.

Professor Lawrence Lessig (founder of Creative Commons) presented a persuasive argument that traditional copyright law enforcement is polarizing rights holders and users at a time when harmony is needed most. Professor Lessig called for simplifying the law, supporting methods of knowing who owns what (i.e., registries), and making it easier to know what is considered "fair use". He also pointed out that the ecology of creativity requires a culture that encourages amateur creators.

David Carson (General Counsel for the U.S. Copyright Office) mentioned the benefits of copyright registration to society, which include establishing a record of authorship/ownership, assistance to the court in determining the validity of copyright claims, marking in time a version of each work, and USCO's value as a collection source that adds to the Library of Congress. Mr. Carson called attention to the stress that digital evolution is putting on current copyright laws, which were predominantly drafted in the 1960's.

Jeff Sedlik (founder and CEO of the PLUS Coalition) described the mission of PLUS, which is to "Simplify the communication and management of image rights". PLUS will add a registry function later this year that will connect people, permissions and pictures and provide secure, remote metadata storage and lookups.

Darrell Perry (former Director of Photography for the Wall Street Journal) spoke of the shift from the corner news stand to a bigger variety of online news sources. Brand is becoming increasingly important as choices grow, he said. "Do I trust that pipe?" is the question being asked.

Photographer Chase Jarvis pointed out that it's the first time that creators can also be distributors, and the impact that this deceptively simple transition is having. Photographer Liz Ordonez spoke about real estate photography in the South Floria market. And, the panel was moderated by Jay Kinghorn.

All in all, it was an informative and well-executed event. The ASMP will have a video and related resources available of the event in about two weeks.

Orphan Works 20 Years Old Or Older

Let’s delve deeper into the Recommendations For The U.S. Intellectual Property Enforcement Coordinator (IPEC), starting with the suggestion that “orphan works” type legislation should only apply to works and digital files that are older than twenty years.

This is not to debate whether “orphan works” should or should not pass. Given the speed at which the Digital Economy Bill is progressing in England and the powerful forces that support the Orphan Works Act in the USA, it can be assumed that some version will pass. (In fact, we specifically created The Copyright Registry at C-Registry.us to counter the effects of “orphan works” legislation on creators and their agents. It’s clear from our actions that we believe it will ultimately become law in various countries.)

It would be an amazingly simple, fair and effective compromise if the Digital Economy Bill and similar “orphan works” legislation were amended to cover only creative works and digital files that are more than twenty years old. Here’s why …

The original reason for addressing the “orphan works” issue was to enable “publishers” to use images, illustrations and other content in support of cultural heritage, educational and other worthwhile sharing of the arts for the public good. Because so much of the older creative works have no creator or owner information or owners who can’t be found, copyright laws prevent using this historical content for fear of infringement and possible statutory damages. Arguably, our education and heritage is being compromised by fear of copyright liability.

Somewhere along the way, the forces that make their money from providing the devices and services that access “free” content realized that this was a potential gold mine for them. For the last three decades or so, the standard has been “when it’s created, it’s copyrighted”. In other words, no formal registration or notice is required (i.e., “© 2010 John Doe. All Rights Reserved.”). Upon creation, every creative work is instantly copyrighted.

This is pretty fantastic for creators. It means the artistic scribbling of a 4-year old child at a restaurant is copyrighted upon creation (although she would be too young to commercially exploit that work). It means creators can control who gets to use their creativity and be remunerated to create more.

Since the requirement for copyright notices was removed, fewer and fewer creators have affixed notice to their work. And when the Internet exploded on the scene, copyright notices all but disappeared from images and illustrations online. This is due, in part, to rampant copying without authorization. For every image that is legitimately licensed for web use (say, for a student textbook, news or commercial web site), there are easily dozens of copies that are taken and published elsewhere without permission. So, the few images that do have a copyright notice are outnumbered by those that don’t, and then diminished much further by copies of that work from which copyright notice has been removed through unauthorized copying.

The end result is that the vast majority of images online (and, we’re talking maybe as much as 99% of the images on the Internet) have no information as to who the creator or owner is or no means to find or contact the rights holder.

So, the majority of the professional, commercial and editorial images online would be considered “orphaned”, together with an even larger percentage of amateur images.

“Orphan works” legislation says, in essence, that as long as the user has done a “diligent search” to try to find the owner of a creative work, if they can’t find the owner, they can publish and use that potentially copyrighted content with impunity from copyright infringement and statutory damages (with a few exceptions). The only catch is that if the rights holder happens to discover the use amongst the 1 trillion images online, then a fair usage fee must be negotiated. (At which time the user will argue that a fair fee is $1 because “similar” images can be bought from microstock agencies for that price). The end result of “orphan works” legislation, as recently drafted, could be the elimination of most of the potential revenue to creators for the Internet use of their creative works. (Again, we created C-Registry.us to help counter this effect).

Back to the idea of setting a 20-year limit ... Most revenue from image licensing and other creative work happens within the first 20 years of their creation. In fact, with timely images, like news and celebrity photos, most of the revenue happens within the first year from when the image was created. In the sales cycle for most images, their value declines for 20 years until they become “nostalgic”. Then, their value often begins to increase again as they get older.

If there were a 20-year time threshold on “orphan works”, that would provide many benefits to creators, users and society:

1) Historical content with no known owner or agent could be used freely to enrich society (as was originally intended with “orphan works” legislation).

2) Most of the value of modern creativity would remain with its rights holders.

3) It would provide some “breathing room” for creators to begin working with commercial copyright registries and better affixing copyright notice to their works.

4) By establishing that the content AND the digital file must be 20 years old to be eligible as an “orphaned work”, it would totally remove all doubt about a portion that is not “orphaned”. And most importantly, it would enable automated processes to check file creation dates. Search engines, for example, could let users automatically eliminate any file that is not 20 years old. A “diligent search” by a potential user with image or video search engines could immediately eliminate a portion of the works that are clearly not “orphaned”.

From the wedding photographer who posts “proofs” of their clients online for review, to the commercial stock photographer whose images are widely licensed and even more widely stolen, the 20-year rule would significantly protect all creators and, to some degree, Content Consumers also. And, it would protect amateur photographers who don’t have a clue what this discussion is about.

Therefore, it is recommended that creative trade associations, the U.S. Intellectual Property Enforcement Coordinator (IPEC), the U.S. Copyright Office, and legislators of the Digital Economy Bill and the Orphan Works Act consider limiting the definition of an “Orphaned Work” or “Orphan Works” to be a creative work that is at least 20 years old, and a digital file that is at least 20 years old if that creative work is in digital form.

Randy Taylor
www.RandyTaylor.com
The Copyright Registry at C-Registry.us

Recommendations For IPEC-U.S. Intellectual Property Enforcement Coordinator

The U.S. Intellectual Property Enforcement Coordinator, Ms. Espinel, made an open call for comments from industry stakeholders. Many submitted their suggestions. Hopefully, you did too. Here are mine.

My "Evaluative Report And Recommendations For The Application Of Copyright Laws, Technology And Public Policies By The Office Of The United States Intellectual Property Enforcement Coordinator" weighs in at 52 pages. (Thank goodness we had so little time to do it!) It contains a detailed review of technologies that can serve the objectives of copyright use, education and enforcement. And, it contains recommendations of desirable actions for the photography and illustration industry.

The full report can be read here:
Report And Recommendations For The U.S. Intellectual Property Enforcement Coordinator By Randy Taylor

To summarize, my recommendations to IPEC are as follows:

a. Seek international consensus via treaties and conventions

b. Foster creation and sustenance of Registries

c. Initiate a minimum statutory damage or fine for failure to obey a DMCA Take Down order, separate from copyright statutory damages

d. Foster numbering systems because a unique file ID or number is required for each digital content file for the orderly conducting of business and processes

e. Expand copyright notice methods to include machine readable methods as acceptable alternative means of notification

f. Define "Orphan Works" as being limited to works and digital files that are older than 20 years

g. Initiate a worldwide cap on the duration of copyright

h. Initiate a compulsory license for low-end web use of photographic images (uses valued at under $1)

i. Prohibit using “fair use” as an exception when the content usage is for gainful intent

j. Discourage advertising that encourages infringement

k. Assign to a scientific standards body the task to monitor and recommend “best practices” haching methods and formulas

Randy Taylor
www.RandyTaylor.com
http://www.c-registry.us
The Copyright Registry at C-Registry.us

Unregistered Images In Class Actions Are OK Says Supreme Court

Images that have not been registered with the U.S. Copyright Office can be included in class action law suits that involve copyright. That’s what the U.S. Supreme Court indirectly ruled in a unanimous (8-0) vote.

Though the original case was about the rights of writers, this outcome is good for photographers and other image rights holders. It means that owners of photographs that haven’t been registered can still benefit from class actions, which are becoming the best option to get paid from large web sites and companies that monetize contributory infringements of millions or, in some instances, billions of infringing images.

The details are even more complicated. In 2001’s New York Times Co. v. Tasini, the court decided that using the author’s stories in online databases without written authorization was an infringement. Three years later, there was a mediated settlement for $18 million. But, some authors objected. The District Court overruled the objection. Those who objected appealed. But this time the court said it didn’t have jurisdiction because some of the creative works were never registered with the U.S. Copyright Office. Later, the Court of Appeals agreed. Ironically, both the owners and publishers were objecting to the court saying it didn’t have jurisdiction. On March 2, 2010, the U.S. Supreme Court settled the matter once and for all, saying the lower court did, in fact, have jurisdiction, even if the copyrighted content was never registered.

Wow. Complicated. And, the reason for the Supreme Court’s reversal is even further removed from images and copyright issues.

But at the end of the day, the lower court inadvertently forced this Supreme Court decision that was needed to definitively clarify that unregistered content can be included in class action law suits. The lower court did this by going against what both the rights holders and infringers had agreed to in their settlement.

Had the decision gone the other way, only a fraction of images could be included in future actions. And then, they would need to be assembled in a way that separates registered images from unregistered ones. That would have made class actions involving photographs much more difficult to execute with an acceptable outcome.

Randy Taylor
www.RandyTaylor.com
The Copyright Registry at C-Registry.us

Legal Arguments At Google Book Settlement Fairness Hearing

Tete-a-tete and point-to-point, the battle continued in a New York courtroom February 18th for the heart and mind of U.S. District Judge Denny Chin, who is to decide the outcome of the $125 million Google Book Settlement.

Microsoft’s Tom Rubin scored early in the match by pointing out that 173 of 174 million books affected by the settlement will be controlled by Google until their owners come forward to claim them (the so called “orphaned” books). To which Judge Chin said “Good point”, the only time he commented positively about a legal point during the day-long hearings. The Book Rights Registry, which would be empowered by the settlement to relicense the scanned books, would not have the right to monetize the orphaned books. That would leave Google solely capable of making money from these orphaned works because Google could display advertisements (Google Adwords) along side snippets of book text.

Ms. Daralyn Durie, who spoke on behalf of Google near the end of the day, countered that 174 million is the approximate quantity of all the books in the world. 42 million of those books are in U.S. libraries. 10 million books are affected by the Google Book Settlement. And, 5 million of those are “out of print”. So, one is really discussing 5 million books, not every book in the world, Google argued.

(The Google Book Settlement is a complicated class action law suit that is complicated further by the legal arguments of each of the numerous parties with an interest in the outcome … translation: they’re fighting over who gets the control, money and benefits. How to understand the Google Book Settlement? This summary of the February 18th Fairness Hearing attempts to make sense of the major points, which were consolidated in the proceedings from years of legal briefs, court filings and public wrangling.)

Benefits Of The Settlement

In essence, Google supporters believe the greater good to society is served by making this wealth of book knowledge accessible to the many, and that this societal benefit outweighs other legal and business considerations. And, they argue that Google is doing nothing wrong anyway since displaying snippets of text is a “fair use” exception that does not violate copyright law, adding that other companies could scan all the books if they wanted to, but choose not to. So, supporters believe that Google should not be penalized for providing a service that everyone agrees would be beneficial, but that others don’t want to provide or can’t provide, mainly because of economic constraints (because it’s expensive to scan millions of books).

The Google Book Settlement broadens readership of over 10 million books beyond those who have proximity to a major library, which would benefit everyone, including the economically disadvantaged. For example, it lets blind people read more books. And, it would help to preserve the knowledge and heritage that might otherwise be lost eventually because those words are now stored on acid-based paper that deteriorates with time.

Wait just one second, the opposition decries. There is a long list of problems with this business model that must be considered, they argue.

Department of Justice Objections

The most powerful voice on the subject is the U.S. Department of Justice (DOJ), which formally represents the The United States of America on things like this. DOJ is focused primarily on anti-trust and anti-competition aspects. It argues the court’s approval of the settlement would legitimize forward-looking business commitments without the explicit authorization of each copyright holder. DOJ says you really can’t unilaterally assign FUTURE rights and revenues of unknowing rights holders as a way of settling PAST copyright infringements. As DOJ’s William Cavanaugh put it, one “cannot use procedural rules to modify rights”. If the court grants this future immunity from prosecution for copyright infringement, Google would be gaining an unfair advantage in the marketplace, allowing it to make money from “orphaned works” that other companies could not if they adhere to copyright laws. (Unrelated to the settlement, it’s noteworthy that copyright laws concerning orphaned works will likely be dramatically loosened when the Digital Ecommerce Bill becomes law in England in a few weeks and when the USA’s Orphan Works Act passes this year or next).

Foreign Treaty Conflict

Business and government representative came from the Federal Republic of Germany and other countries to express concerns that the settlement would harm U.S. relations with its trading partners, saying the settlement likely violates international treaties, such as WTO-TRIPS (Trade-Related Aspects of Intellectual Property Rights, which is part of the World Trade Organization). Because the United States required governmental registration of copyright prior to 1978, many foreign works are registered with the U.S. Copyright Office, which includes them by default in the settlement. Therefore, foreign books can be monetized and licensed without the knowledge or permission of their foreign author who, perhaps, has exclusive business contracts that are compromised by such unauthorized use.

Additionally, the German representatives argued, Google has different rights under the settlement depending on whether a book is “commercially available” or not. But the interpretation of what is commercial availability (i.e., a printed copy being publicly available for sale) only applies to the USA and Canada. So, a book might be actively sold in Europe, but not sold in the USA, which would allow Google (via the Book Rights Registry) to license the book in conflict with foreign sales efforts. Foreigners feel they’ve been left out of the settlement and abused by its conclusions.

Privacy Rights

While most of the legal arguments revolved around the merits of the class action law suit, some focused on what was missing from the settlement. Most notably, there are concerns about protecting one’s right to privacy. This was best conveyed by Marc Rotenberg of the Electronic Privacy Information Center who argued that it’s impossible to cure the privacy issues within the settlement because the obligation to protect privacy is “un-tethered” from state privacy laws and the obligations of libraries that have traditionally been tasked with safeguarding the confidentiality of access to information. In America, anyone can read a book without fear of persecution, whether by the government or others (i.e., the extreme example portrayed in the book/movie “1984”). Google would have a significant capability to abuse privacy without limitation and without the traditional requirements to protect privacy, detractors argue. Judge Chin seemed interested in this aspect and asked related questions of those speaking before the bar.

Exercising the imagination, it’s easy to see the concern. Google can track almost every search one makes, which creates a very personal snapshot of the interests and concerns of everyone who searches online. It can then merge that personal information with data acquired from 3rd parties, such as credit card or store records of what you buy, as well as when and where you buy it. Google can increasingly determine where you are, physically, when you access the Internet from a phone enabled with GPS (Global Positioning Satellite). Ultimately when this data is all merged, Google’s DoubleClick division, which they bought for $3.1 billion, is uniquely enabled to get the right (relevant) ad in front of the right (interested) people at the right time (when they are ready to buy). The dollar value of this centralized, commercial use of private information will be significant. (None of this was pointed out in the court hearings, however, and is a theoretical embodiment of the concern over privacy that was expressed).

Unclear Scope

The true scope (empowerments and limitations) of the Google Book Settlement are also being questioned. Mr. Rubin of Microsoft emphasized the question of scope, pointing out that the majority of the settlement language refers to “snippets” or portions of book text, not the original purpose of the law suit against Google, which was about the unauthorized scanning of entire books.

Concerns were raised by others present at the hearings about the undefined term “non-display use” in the settlement, which seems to authorize Google to do a broad range of undisclosed future business models that could be in conflict with the interests of rights holders. One example given was the phrase “Pay It Forward”, which is a trademarked phrase, the name of a not-for-profit association, the title of both a successful movie and a book, and also a commonly used metaphor. Would “non-display use”, for example, include using the phrase as a keyword that displays Adwords in a way that benefits one user over another, which could compromise trademarks? Or, looking further into the future, the court was asked rhetorically if “non-display use” would include the direct implanting or imaging of information to the brain without requiring the five senses to consume the data.

Though not necessarily a legal point of case law, the vagueness of some aspects of the Google Book Settlement and the undisclosed future uses that are possible disturb some who oppose the settlement.

Where’s The Money?

Some companies also weighed in with opinions. Sony supports the settlement, believing that a rights registry will reduce the quantity of orphaned works, and that the use of the Open Book Format for the content would extend use to more devices. (It was noted that Sony is in the business of selling devices, competing with 25 other e-reader manufacturers). AT&T expressed their concern that the settlement would confer an unjustified monopoly on Google. The Commonwealth of Pennsylvania wanted to control revenues from orphaned works that are set aside, making them “unclaimed property” according to state law.

Amazon.com was also present. David Nimmer said the court is being asked to usurp the fundamental right of copyright holders to “make and sell” copies of their creative works, pointing to a 2006 Supreme Court decision that confirmed that rights holders may opt to simply withhold the grant of usage rights, regardless of any other consideration. DOJ echoed this opinion when Mr. Cavanaugh said, “It is the right to control one’s work that serves as the incentive to create it.” (Amazon’s Kindle competes in the e-reader market).

Opt-In, Opt-Out, Snippets & Whole Books

Several parties suggested the most difficult parts of the settlement could get a quick fix if the logic of user participation by rights holders were simply changed from “opt-out” to “opt-in”. But, Ms. Durie of Google stressed that without the opt-out approach, “there is no other way to create a market for out-of-print works”. Google has scanned 2 million public domain works, she said, and made them available for free online, but, hundreds of thousands of those have never been searched for or viewed. The transaction cost to find rights holders is too prohibitive for low-demand books, Ms. Durie explained.

Mr. Michael Boni, who was speaking on behalf of the authors and publishers who brought the case against Google that lead to the settlement, agreed. He said if opt-out were reversed, “we wouldn’t have a settlement”. It seemed that by the time Mr. Boni came to the microphone, the authors and publishers were feeling more like defendants than plaintiffs. Mr. Boni, a Philadelphian, said he felt like Rocky Balboa. He went on to amply stress that, despite all the talk about snippets, their original attempt at injunctive relief five years ago was to get a court order to stop the unauthorized scanning of entire books by Google.

What Is Evil?

During the hearings, one evolution of thought equated class actions about discrimination to this settlement about copyright. It was suggested that discrimination is “evil”. Perhaps because it is the mission statement of Google to avoid doing evil, a conversation between the court and Google occurred on the subject. Judge Chin asked whether or not “the dissemination of copyrighted works is evil”. To which Ms. Durie responded, “Copyright infringement is evil to the extent that it is not compensated”.

Judge Chin’s forthcoming decision as to the acceptability of the Google Book Settlement will influence, if not decide, how rights holders of content that is scanned and monetized without authorization will be compensated in the digital age.

Randy Taylor
www.RandyTaylor.com
The Copyright Registry at C-Registry.us

(This is part two of a two-part series by Randy Taylor who attended the Google Book Settlement Fairness Hearing February 18, 2010. Part one is Fairness Of Google Book Settlement Has Its Day In Court.)

Fairness Of Google Book Settlement Has Its Day In Court

Two-dozen blind people squeezed in line with lawyers, professors and journalists outside Judge Chin’s courtroom on February 18th, eager to attend the final Fairness Hearing on the Google Book Settlement. One man still had the store’s size tag stuck to his collar. For the blind, accessing more books is such an important cause that this gentleman had bought a new white shirt to look his best at the hearings. Once the courtroom filled, the remainder gathered their jackets, brief cases, white canes and guide dogs and navigated down 12 floors to the overflow courtroom until that space also filled to capacity.

Nearly 400 people marched past the AP photographer and Bloomberg TV crew who documented arrivals outside New York’s Federal Courthouse. Cell phones, laptops and cameras were not allowed inside. It was an exceptionally large crowd, the bailiff said with a sigh. “It’s like a class reunion of copyright geeks,” one professor added, describing the scene as the rock stars of the Copyright Bar mingled with their former and future teachers, students and colleagues.

As if decided by coin toss, supporters of the settlement lead the verbal presentations, making their case … at times, too fast for the court recorder to keep up with each rapid-fire soliloquy that was compressed to fit strict time limits. The opposition followed next with their own salient points. The crowd listened intently to every word.

Judge Chin set the tone of the hearings, at times with a sense of humor, which was welcomed by all amidst the heartfelt debates on legalities, such as whether the “identical factual predicate doctrine” is more applicable to the case than the “fireman’s test”. When the Commonwealth of Pennsylvania argued that royalties for orphaned works should be treated as “unclaimed property” and controlled be each state, he pointed out that BMI and ASCAP both comply with state laws in this way. Judge Chin quickly quipped, “They probably comply with U.S. copyright laws too,” and laughter rolled through the courtroom.

Judge Chin was in control and kept the ball moving briskly forward, even accidentally skipping the statement by Amazon.com before backtracking to include it. Judge Chin at times chastised speakers for their self-aggrandizing statements or redundant oratory, insisting that people stay on subject and clearly state their case for or against the Google Book Settlement, which all agreed could radically change how book content will be monetized and consumed in digital form in the future.

If there were a main event, it would have to be the presentation by the Department of Justice, which represents the official opinion of the United States of America in such proceedings. Mr. Cavanaugh stated firmly that it is inappropriate to include forward-looking business models in settling class action damages for past infringements. Google’s attorney stated the opposite with equal gusto.

Judge Chin will make his ruling in the coming days after considering all points of view. He will include a supporting opinion that explains his ultimate decision, which could accept or reject the settlement, or send it back to the parties for revision.

(This is part one of a two-part series by Randy Taylor of The Copyright Registry at C-Registry.us, who attended the Google Book Settlement Fairness Hearing on February 18, 2010. Part two is Legal Arguments At Google Book Settlement Fairness Hearing.)

Supreme Court To Decide Copyright’s Fate For Online Monetization

The U.S. Supreme Court will soon make its most momentous decision affecting photographers, stock photo agencies and other creators. It will soon decide whether creative works must be registered with the U.S. Copyright Office before they can be included in a class action law suit concerning copyright infringement. What’s at stake is the future of revenue for most of the Internet uses of creative works.

The USA is one of the countries that require governmental registration to enforce one’s copyright in court. At issue is whether or not this formal registration of copyright should be required to participate in a class action law suit that is copyright related.

It’s a plausible argument. If registration is required for individuals to sue for copyright infringement in U.S. Federal Court, a larger “class” that includes many individuals could also require registration to collectively sue on behalf of those individuals.

On the surface, this might seem like a boring legal technicality. In practical terms, though, this Supreme Court decision could ultimately determine each creator’s ability to make money in the digital age.

Some estimates say there are 20 unauthorized copies for every licensed song online and 100 stolen versions for every authorized image. There are about 3 trillion images online and billions of new images uploaded every month. The problem of unauthorized use is increasing almost exponentially as each new web use exposes that copyrighted work to still more unauthorized copying. Surveys indicate that half to three-quarters of people think it should be OK to take the images of others for personal use on a web site. For rights holders, it’s practically impossible today to get paid for small Internet infringements. Despite all the mircostock shops, it could be argued that a failure of the marketplace has already occurred at the low-end of the market for images online.

The class action law suit is currently the best method for individual creators to get paid for vast quantities of tiny digital infringements. (Other solutions, like Veripixel™, are on the way). A class action can leverage the ability of each individual photographer to monetize their copyright. Without class actions, enforcing low-value, online infringements is virtually impossible because the cost of governmental registration and pursuing a Federal law suit far exceed the potential reward from each minor, individual infringement.

The importance of copyright is paramount in the digital age. Copyright piracy costs the U.S. economy 373,375 jobs and $58 billion in annual output, Senator Hatch tells us. We should have great respect for the framers of the U.S. Constitution who had such clairvoyant foresight in understanding the value of creativity. Copyright was so important to the founding fathers of America that they included it in the Constitution. (Later “after thoughts” added Freedom of Speech, the Right to Bear Arms, Trial by Jury, and the Abolition of Slavery).

So, will the highest court in the land agree with the legal premise that what applies to the one must also apply to the many? Or, will it side with the greater good to society that copyright provides creators and content consumers, which was more in the spirit of the Constitution? The answer is very close and could come as early as the week of February 22nd when the Supreme Court resumes from its current hiatus. In any event, it will be decided before the court adjourns this coming June.

While we wait for the court’s momentous decision, the great copyright debate is increasingly entering the awareness of main stream America. We are all observing the tug-of-war that is evolving between corporate giants and individual creators over who will control the revenues of creative works online. Against this “backdrop”, which is deciding the value of online image use, the importance of copyright education must be emphasized. It’s important that photographers, illustrators, song writers and other individual creators be well informed on the topic and proactively engage in the efforts that represent their collective best interest. One good opportunity to do both is ASMP’s one-day symposium entitled “Copyright and the New Economy: Issues & Trends Facing Visual Artists” on April 21st in New York.

Randy Taylor
Co-founder of The Copyright Registry at www.C-Registry.us

Digital Economy Bill Amendments

Sarah Saunders, who has been keeping an eye on the evolution of the Digital Economy Bill in Britain, points out that amendments have been proposed. These changes seem to bring the bill more in line with other Orphan Works legislation that is progressing in the EU and various countries. Sarah's post with links to the bill and its amendments:

Digital Economy Bill amendments to be discussed

I commented to Sarah's blog as follows:

The requirements mentioned exactly describe the services of the patent-pending ownership identification process of The Copyright Registry at C-Registry.us. It's time for pro-creator British and American counterparts (who support copyright and creators being paid for their work) to join together and actively promote a solution for Orphan Works legislation that is advancing world-wide.

Content Consumption And Copyright Will Shape The Next Decade. What Then Must We Do?

2009 was a disastrous year, marked by personal tragedy for some and a general malaise for the many who create and license content. It culminates a decade in which the inevitable result of massive oversupply of digital content has been accelerated by an equally predictable global economic decline.

In stock photography, big companies have long held the perspective that photography is a “zero sum gain” marketplace in which the size of the pie is static, and the only way to gain revenue is to take market share from others. This strategy manifested itself in massive discounts (over 90% in the case of microstock) from recent pricing models, which has dramatically reduced the size of the pie at a time when quantities of use are experiencing explosive growth.

Though photography is economically small when compared to the music and movie industries, it is the most broadly consumed type of intellectual property on the Internet. We are experiencing a dramatic shift of revenue and power as the Internet becomes the dominant channel for both the distribution and consumption of digital content. Efforts to transition the economic rewards for creators into the Internet Age are being opposed by some with personal or corporate self-interests, sometimes without regard for ethics, truth or fairness.

The 2009 content survey by Creator’s Circle Magazine confirms other reports that half to three-quarters of Americans think it should be OK to take the intellectual property of others for personal use. Copyright infringement violates Federal law. While copyright is the foundation on which content industries are built, it also stands in the way of shifting that wealth from rights holders and distributors into the pockets of the equally powerful technology providers that benefit most from free content. (Senator Orrin Hatch stated in ’09 that copyright piracy costs the U.S. $58 billion in output, 373,375 jobs, $16.3 billion in earnings, and $2.6 billion in taxes.)

So, what’s a government to do when over half of its citizens are eagerly engaging in breaking Federal law and its major industries are battling over rights?

In 2010, a great battle about copyright will enter global headlines. Skirmishes will occur everywhere from blogs to the hallowed halls of national legislative bodies. Combatants will carry the banners of “orphan works”, “three strikes” and other catch phrases. The greatest risk to creators and rights holders in the next decade will not be from unauthorized personal use, for which viable solutions are ready, but rather at a level of national politics in a global theater.

“What then must we do?” Leo Tolstoy asked of poverty in 1886. The good news is that solutions to the digital equivalent of the dilemma posed by Tolstoy are finally within reach. From the many challenges of the last decade, significant opportunities are emerging for creators and content consumers in the next decade.

2010 is the first year in which the eroding value of creativity online can be broadly addressed. Copyright and image registries, like C-Registry.us, will make it possible to know “who owns what” for a significant portion of the 3 trillion images online, which will enable new business models and re-enable honesty. Rights holders will finally have the option to better monetize that content which is presently used without authorization or payment on the Internet.

What then must we do? Simply participate.

It’s time to move from the sidelines, engage in the debate, and join the solutions that are emerging. It’s time to leave apathy, frustration and anger behind and proactively shape the destiny of content consumption. The paradigms are changing. Technology has enabled the creation of new markets and new revenues for intellectual property, as well as the discarding of that self-defeating attitude of zero sum gain. The decade ahead promises fertile fields for the creative seeds that will benefit, educate and entertain the masses, and for those who sow and harvest those creative works.

(Editor’s Note: In coming months, I am preparing a comprehensive report on the major media trends that will shape the coming decade for creators and content consumers. Watch for it by Spring, 2010.)

Digital Economy Bill May Change Copyright Law In UK

In the U.S., Google Book Settlement is the headline at water cooler discussions on copyright, and the Orphan Works Act has stalled temporarily, in part because the Senate Judiciary Committee is preoccupied with things like trying terrorists. Meanwhile in Europe, they have been burning the midnight oil to change their copyright laws to reflect Orphan Works, the Google Book Settlement, content theft on the Internet, and public opinion. The outcome could dramatically affect rights holders.

On November 18th, Her Majesty The Queen of England called for passage of the Digital Economy Bill in her traditional speech to the House of Lords and House of Commons. Britain’s Digital Economy Bill is based largely on a report by its Intellectual Property Office (IPO) entitled "© the way ahead". The British Journal of Photography (BJP) summarizes the report, saying it "asks rights holders to broaden the terms of their licences, allowing the public to use photographs for non-commercial uses without payment or authorisation. It also proposes the establishment of a new collective licensing agency, orphan works legislation and less ‘muscular’ enforcement of image theft."

BJP has reported on this legislative initiative from the rights holder’s perspective in two articles that are quoted in this blog post: "Copyright changes to be announced in Queen's Speech?" and "Government goes ahead with changes to UK licensing rules".

BJP says the Digital Economy Bill proposes "changes to the copyright licensing scheme [that] could impact photographers the most, as non-commercial consumers could use images without having to ask for permission or providing payment to the photographer."

According to BJP, IPO finds the current copyright system to be too complex for users. Although fair compensation for rights holders would be required, BJP quotes IPO as saying that, "making non-commercial use less onerous for consumers, for example by removing the need to seek permission and make payment for personal use of individual copyright works, would help."

IPO believes that one big problem is not being able to find rights holders. BJP quotes IPO as saying "… systems for licensing are complex, time-consuming to access and incomplete. Copyright is automatic and many works (such as photographs) do not incorporate details of their creator or rights holder. As a result, it is hard to get permission to use works. A user may find it impossible to identify the owner of a work."

IPO seems to conclude if there is no method to easily find photographers from their images, then it’s more expedient to change copyright law to no longer make it a copyright violation to use images for non-commercial use without authorization of the rights holder. IPO says, "Making licensing easier benefits all who are currently involved …"

AmateurPhotographer.co.uk quotes Stewart Gibson, head of Members' Services at the Bureau of Freelance Photographers, as saying that although use of a wedding photographer's pictures, for example, without consent would deprive the photographer of a re-print fee, the use of images on someone's personal blog page, say, is "probably not going to be a big deal". Gibson added: "It's not an ideal situation but there is nothing you can do about it in the internet age."

A 2009 survey concluded that over half of people feel it should not be illegal to use someone else’s photos for your personal use. When asked "Should it be illegal to copy an image from a Website for your personal use?" 74% said 'no' in the street interviews and 46% said 'no' in the online survey. Support of legalizing such use goes up even further if proper credit is provided to the creator (an "attribution right"). Subsequent surveys support these numbers. (The full copyright survey in Creator’s Circle Magazine can be read on pages 20 and 21).

This may all seem confusing, as law-making often is. Although previously inconceivable, the logical direction of this movement is clear … and unsettling. If rights holders choose not to enable all means possible to associate their ownership with their creative works, and if there is no easy way for the masses to license that work for personal uses, such as blogging, it could become politically expedient to just change copyright laws to make it acceptable to use the creative works of others without paying. BJP’s reporting would seem to indicate this is the heart of the proposal by the Queen of England.

The two easiest ways to associate a rights holder’s contact information with their images are by 1) embedding IPTC or other data in each image, and 2) using image registries like The Copyright Registry at www.C-Registry.us. C-Registry.us provides various automated and bulk methods to register images at a cost that is almost free.

Google Book Settlement Enters New Phase

On Friday the 13th (11/13/09), a revision to the Google Book Settlement (GBS) was filed in Federal Court, bringing Google a step closer to achieving its vision of indexing and providing the literary history of the world to the world. The GBS Revision seems designed primarily to appease the U.S. Justice Department, which has expressed anti-trust concerns, as well as objections by foreign countries, such as France and Germany, which have raised international political pressure relating to copyright laws and treaties because of GBS.

The GBS Revision removes many foreign publications from the class action, drops a “most favored nation” provision that provided Google with at least as good a deal as any competitor in the future, assigns a Fiduciary to watch over rights, and changes how monies received for “orphaned works” will be used.

The revised settlement agreement is subject to the judgment of Federal Judge Chin. The U.S. Justice Department will likely give a second opinion early in 2010. And while many people support the goal of making books available that were previously unavailable, the process is clearly ongoing with many players on the stage.

Here is a layman’s perspective on a few of the highlights of the GBS Revision, mostly taken from Google’s summary of the revision:

The Book Rights Registry (BBR) will add an independent, court-appointed Fiduciary to control unclaimed funds for “orphan works”, including books and inserts. The Fiduciary will be responsible for representing the interests of rightsholders. This seems intended to address what the U.S. Justice Department saw as a conflict of interest in which the BBR searches for the owners of orphaned works, but if they don’t find the owners, gets to keep the money (to offset operating expenses) or pay it to other rights holders of unrelated works. In the GBS Revision, after 10 years (up from 5 yrs), unclaimed monies will go to literacy-based charities, government entities (ie, state attorney generals) or “fully participating” libraries. The Fiduciary can spend up to 25% of that money trying to find the owner of each unclaimed creative work covered by the settlement.

Foreign countries, such as France and Germany, and publishers in those countries have voiced loud objections to GBS. This prompted the European Union to consider legislation to counter the effects of the Google Book Settlement. The GBS Revision drops most authored works from countries that do not “share a common legal heritage and similar book industry practices”. Books by authors from the United Kingdom, Canada and Australia remain in the deal, as well as any books registered with the U.S. Copyright Office.

Any book retailer (ie, Amazon, Barnes & Noble, local bookstores, etc.) will be able to sell online access to consumers of unclaimed and out-of-print books covered by the settlement. For book sales by Google, a “black box” algorithm will set pricing based on dynamic industry comparisons. Rightsholders will still receive 63% of the revenue while retailers will keep the majority of the remaining 37%.

The “Most Favored Nation” clause is removed that made the Book Rights Registry offer the same terms to Google before licensing unclaimed works to other parties.

And, additional revenue models (for which BBR can license works) is now limited to Print-On-Demand, File Downloads and Consumer Subscriptions.

Photography continues to be excluded from this class action in most instances.

While Google has taken definitive steps to make the Settlement more acceptable, it remains to be seen if Judge Chin will favor the GBS Revisions or the arguments of those who continue to oppose GBS, such as the potential competitors that created the Open Book Alliance, who described the GBS Revision as a “sleight of hand, surgical nip and tuck”.

There is a recorded press conference-style call that included Richard Sarnoff, Chairman of the American Association of Publishers, Paul Aiken, the Executive Director of the Authors Guild, and Daniel Clancy, who it the Engineering Director for Google Books. You can register to hear/replay the discussion by calling (888) 203-1112 or (719) 457-0820 and entering the code “3915040”.

And, Google has issued three documents on the proposed Revision to the Google Book Settlement (GBS) as follows:

Revised GBS Agreement

Summary Of GBS Revision

FAQ’s About GBS Revision

Some Other Resources About The Google Book Settlement Revision:

New York Time’s summary of the GBS Revision

The Laboratorium, organized by lawyer James Grimmelman, has detailed legal analysis of the GBS Revisions that supplements his extensive coverage of GBS to date

Best Practices Copyright Registration Quantities

Best Practices for governmental copyright registration suggest that you should only publish and register one image at a time. As insane as that sounds, it is what could be needed to maximize the value of formal governmental registration with the U.S. Copyright Office, which is required to sue for copyright infringement in U.S. Federal Court.

There’s a tricky and debatable ramification to governmental copyright registration that’s rarely discussed, one that could have a significant impact on the value of an infringement settlement.

A very small percentage of copyright infringements make it all the way to Federal Court. When they do, the defense attorney is inevitably going to argue diminished value of the copyright in every way possible. One way to lower the value of the claim is to argue that the maximum statutory damages must be divided by the quantity of images in their first publication or their governmental registration.

Said another way, if your registration at the U.S. Copyright Office has 10 images on a single application form, and if all 10 images were infringed upon by the same defendant in one occurrence, then defense council will argue that the maximum statutory damage of $150,000 must be divided by 10, which is $15,000 per image. If defense council can get that argument to “stick”, then several conclusions could extend from that logic.

Defense council will argue that the quantity of images in the formal registration divides the applicable valuation or award, even if only one of ten images is infringed. Because 10 images were registered, the award could be $15,000 per image, 1/10th of the maximum statutory limit of $150,000 divided by the quantity of images registered. That’s what defense council will likely argue.

Taken a step further, it could be argued that the first date of publication (the first time people saw your images) also divides the copyright value. So, if you publish 10 images on a web page and that’s their “first publication”, then it could be argued that each image can only get 1/10th of the full statutory maximum, regardless of how they are formally registered because they were published as a collection of images.

Presto, the value of the infringement settlement could plummet 90% (or lower if more images are first published together or registered in one copyright application) if defense council can make this argument prevail. Whether or not one agrees or disagrees with this position is irrelevant. It could be argued by defense council and supported by an expert witness, and it will be in all likelihood.

So, what’s a photographer or illustrator to do?

It is the recommendation of C-Registry.us and a Best Practice for Copyright Registration to limit the quantity of images in the first publication of each to only one image … and, to limit each governmental copyright registration to one image per application. In this way, the quantity of images at first publication will not impact the value of what’s being copyrighted, and the full value of statutory damages will likely apply to each infringed image.

Because grouping many images together in their first publication or in formal governmental copyright registration could lower the damages that are collectible when an infringement goes to court, it’s a Best Practice to only publish or register one image at a time.

Of course, neither of these approaches is practical for many. It can be time consuming and expensive, especially if one's tech skills are limited. Batch processing and automated workflows can keep first publication from being a "collective work". But, a la carte, individual registration eliminates the efficiency of bulk registering all the images of a photo shoot or project or calendar year and adds a logistical burden to creators. Some statistics say that 95% of photographers don’t register their copyright.

The inconvenience factor is one reason why image registries like C-Registry.us are growing rapidly. Registration with the U.S. Copyright Office is the best defense a creator can have. But if the decision is made to not formally register one’s copyright because of time or money constraints, then some protection is better than none. C-Registry.us provides automated registration of many images at once in its commercial registry with its patent-pending Site Protector tool.

Image Registry Adds Automated Registration

Here’s a big step forward for photographers and illustrators to protect the value of their creative works. Site Protector™ enables automated registration of images on an HTML web page in the name of the creator. This new, patent-pending tool facilitates registering images in the image registry at C-Registry.us.

Every time you do a photo shoot, you can now create a web page of images of that shoot, add the simple source code from Site Protector, and upload that page. Every image on that page or added later to that page will be registered automatically in the name of the creator at The Copyright Registry at C-Registry.us.

C-Registry is working on automating the whole copyright registration process. This step gets visual content from web pages registered in the image registry. Coming later … getting it from the image registry into the U.S. Copyright Office.

But meanwhile, photographers and illustrators can conveniently register every image they create by adding source code from Site Protector to the HTML web pages of their portfolio or company site. And if the code is added to a header or footer that spans multiple pages in a web site, every image on every page at that site will be automatically registered for the creator.

This isn’t the U.S. Copyright Office. But it’s the next best thing. And, it’s only $25 per year to register unlimited quantities of images.

Read the press release on automated registration in the image registry.

And, here’s the instructional video on how to automatically register your copyrightable images at C-Registry.us.

Competing Filings On Google Book Settlement

Here's a telling tally of those who officially filed by September 8th with the Court concerning the Google Book Settlement (GBS), broken down by supporters and opposition, and why.

It's interesting to note who is on each list, and who's not. And why they're on the list. Opposition includes lots of big name corporations (Amazon, Microsoft, Yahoo), entire countries (France, Germany, the United States of America), several trade associations (ie, ASMP), etc.. Notably absent are some photo/creator trade associations who have been vocal in the past against orphan works-related issues.

Of those who filed in opposition, 10 fear GBS is anti-competitive. 7 argue it hurts the user. And 23, the biggest group, feel it's bad for rights holders.

Conversely, of supporters who filed, the largest group (23) see GBS as being good for users while 4 argue it encourages competition and 1 thinks GBS is pro-rightsholder.

This informative scorecard entitled "The Google Book Settlement: Who Is Filing and What Are They Saying?" was created by The Association of Research Libraries (ARL), American Library Association (ALA), and Association of College and Research Libraries (ACRL), and authored by Brandon Butler, Law & Policy Fellow for ARL.

The documents:

Original ARL document The Google Book Settlement, Who Is Filing and What Are They Saying

mirrored copy of ARL Google Book Settlement Who Is Filing (in case original becomes unavailable)

Thanks are in order for Professor James Grimmelmann and his team at The Public Index and to Justia for making these filings freely available online

And, here's the History of the Google Book Settlement.

Randy Taylor

Owned Works Need Not Be Mistaken For "Orphaned Works"

The perils of copyright theft plague all creative markets in this digital world. I read a post about e-books and their challenge to track unauthorized use. My comments to that author are appropriate here, as well.

Two dynamics are converging. Every creative work put online exposes it to theft. And, a major movement (Orphan Works) is pushing to change the rules to make "fair game" of all unidentified content (thus diminishing the value of current law that says it's copyrighted even if not credited).

The problem is the worst in the photo space. Almost all web sites use images. Some estimates say there are a hundred uncredited copies online for every legitimately licensed image. There are 2-3 trillion images already online (and exposed to theft) with billions being uploaded monthly. And, stolen images are rarely attributed to their authors.

Several companies provide "detective" services to find infringers for a share of the revenue. The solution we've created is to enable every copy of a content file at any web site, regardless of language, to link back to its rights holder via an open registry. In this way, owned works need not be mistaken for "orphaned works". Though launched in the photo industry, this technology and approach would work for e-books, as well.

The essential ingredient to solve the problem of unauthorized use is a registry. Knowing who owns what is mission critical in getting permission for use. Once owners are identified, rights holders and the market will ultimately determine a fair price for use, which could range from being free (ie, Creative Commons or sharing ad revenue) to the opposite extreme, which could one day be a government-mandated compulsory license. Solutions to industry problems are readily available. Education and adoption are needed.

Randy Taylor
The Copyright Registry at www.C-Registry.us

Justice Department Disapproves Google Book Settlement

On September 18, 2009, the U.S. Department Of Justice advised the Federal Court that it should not accept the Google Book Settlement in its current form. This almost certainly means Judge Chin will ask the parties to renegotiate the deal following his public hearing on the subject on October 7th.

Speaking on behalf of the United States Government, the Justice Department objects to the class action settlement in The Authors Guild Inc. et al. v. Google Inc. as proposed due to concerns of the United States regarding class action, copyright and antitrust law. The government proposes changes that may help address the concerns of United States. The Justice Department suggests the Settlement should:

1. Impose limitations on the most open-ended provisions for future licensing,
2. Eliminate potential conflicts among class members,
3. Provide additional protections for unknown rights holders,
4. Address the concerns of foreign authors and publishers,
5. Eliminate the joint-pricing mechanisms among publishers and authors, and
6. Provide some mechanism by which Google’s competitors can gain comparable access [to scanned content, depending on the settlement’s ultimate scope].

The full Justice Department announcement can be read here:
U.S. Justice Department Disapproves Google Book Search Settlement (PDF)

In my opinion ...

It's been recently reported that Google has been in 11th hour discussions with the Justice Department to offer concessions that would make the book deal acceptable. The existence of these discussions seems to be confirmed by this comment from Justice: "Given the parties’ express commitment to ongoing discussions to address concerns already raised and the possibility that such discussions could lead to a settlement agreement that could legally be approved by the Court ..."

Also of note, in the Congressional Hearing on September 9th, Google offered to forgo some profits and exclusivity in the deal by allowing others to access and publish books from its digital scans. This was widely reported in the media as a concession to publishers such as Amazon.com. It is much more likely that this concession was part of Google's efforts to preemptively appease the Justice Department prior to their September 18th statement to the court.

Judge Chin's decision in October could be a setback for Google since a key element of the Settlement, which must be approved by the court, is to resolve alleged copyright infringement relating to Google's scanning and monetization of books that are still under copyright. Also, since the Settlement does not cover photographs in general, rejection of the current version could encourage a new class action law suit against Google relating to Google Image Search, which began monetizing image search with the addition of Adwords early in 2009.

Everyone agrees that enabling broad, digital access to books (over 10 million scanned thus far), including many that are out-of-print and otherwise inaccessible, would be a great service. What's really being decided is how the money will be divided and who will control this tremendously beneficial service that Google has initiated and paid to setup.

Another ramification ... rejection of the Settlement "as is" would indirectly emphasize the importance of evolving Orphan Works legislation. "Orphaned" books are a small subset of "Orphaned Works".

Randy Taylor
The Copyright Registry