How The Cookie Crumbles

Regrettably, this is not about an end to data-collecting "cookies".  It's about intellectual property esoterica. 

For Fenwick and West LLP , legal blogger David L. Hayes Esquire  has complied the most comprehensive and fascinating summary of the most newsworthy and influential copyright lawsuits in recent times.

It is titled, "ADVANCED COPYRIGHT ISSUES ON THE INTERNET."
https://www.fenwick.com/insights/publications/advanced-copyright-issues-on-the-internet

Here is the link to the .pdf, all 1020 pages of it.  
https://assets.fenwick.com/documents/Internet-Copyright-Treatise-0920.pdf

It's an absolute treasure trove if you want to know what was really going on with the Dancing Baby (see page 889), or why EBay cannot be touched when its sellers sell copyrighted works at auction (see page 926) , caching, incidental copies of copyrighted works, inducement liability, vicarious liability, innocent storage, acting as a conduit,  and much much more.

Many decisions seem harsh to copyright owners. That's the way the cookie crumbles.

Of great interest is pp 999 - 1001 (First Sales In Electronic Commerce), which goes to the heart of why the Internet Archive's digital lending premise is not permitted under the DMCA. At least, it is of interest, if you read this rather piratical distortion of copyright history by Ryan and LaToya and Maria.

https://wdet.org/posts/2020/10/15/90154-publisher-lawsuit-against-internet-archive-puts-future-of-book-ownership-in-question/

I'm not sure if you can "like" this author's reply to the premise, left in the Comments section of the piece, but the comments about "the future of book ownership" are absolute, opinionated rubbish.

Another somewhat concerning article about a religious institution deciding to opt for piracy instead of donating their library to a University occurred this week.
https://www.insidehighered.com/news/2020/10/21/marygrove-college-library-materials-have-been-digitized-and-placed-online-will


For those writers with a book written and ready for competition, entry into the Vivian is free for members of RWA and also for non-members this inaugural year, and will open for entries on November 10th at 11.00 am Central Time.

Visit www.rwa.org/TheVivian for information.

All the best,

Rowena Cherry 

SPACE SNARK™ http://www.spacesnark.com/  

No Digital First Sale Rights For Now

I am pleased to report that authors' incomes will not--for the time being--be further decimated by "First Sale Doctrine" being applied to e-books.

A report issued today by the U.S. Department of Commerce recommends amendments to copyright law that would provide courts with both more guidance and greater flexibility in awarding statutory damages.
In its "White Paper on Remixes, First Sale, and Statutory Damages," the Department’s Internet Policy Task Force (IPTF) sets forth its conclusions on three important copyright topics in the digital age: (1) the legal framework for the creation of remixes; (2) the relevance and scope of the “first sale doctrine;” and (3) the appropriate calibration of statutory damages in the contexts of individual file sharers and secondary liability for large-scale infringement. 
The White Paper recommends amending the Copyright Act to incorporate a list of factors for courts and juries to consider when determining the amount of a statutory damages award. In addition, it advises changes to remove a bar to eligibility for the Act’s “innocent infringer” provision, and to lessen the risk of excessive statutory damages in the context of non-willful secondary liability for online service providers. 
With respect to remixes and the first sale doctrine in the digital environment, the report concludes that the evidence has not established a need for changes to the Copyright Act at this time. The Task Force makes several recommendations, however, to make it easier for remixers to understand when a use is fair and to obtain licenses when they wish to do so. It also recommends the development of best practices by stakeholders to improve consumers’ understanding of the terms of online transactions involving creative works. Finally it notes the need to continue to monitor legal and marketplace developments to ensure that library lending and preservation concerns are addressed.
In making its recommendations, the Task Force was mindful of the need to protect copyrights effectively while also promoting innovation on the Internet.
This new report follows up on issues first discussed in a 2013 IPTF Green Paper, "Copyright Policy, Creativity, and Innovation in the Digital Economy," and is the product of two sets of written comments and five public meetings and roundtables conducted through the following year.
The IPTF is made up of representatives from the United States Patent and Trademark Office (USPTO), The National Telecommunications and Information Administration (NTIA) and other Commerce Department agencies. 
The White Paper and additional background information can be found online at: www.uspto.gov/copyright-white-paper-2016.

Should First Sale Doctrine Apply To Intellectual Property?

Marilynn Byerly has graciously consented to allow me to repost an article she posted on her own "Adventures In Writing" blog in November 2013.

Marilynn's comments are important as the USPTO is about to host a Roundtable on the topic of copyright reform with regard to whether First Sale Doctrine should apply to digital works, and as a group of Berkeley lawyers attempts to start a "grassroots" movement to change (weaken) copyright protections under the law--which I infer is for the benefit of Amazon, Google, libraries, and freetards-- but not for professional authors.

Should eBooks Be Resold Like Used Paper Books?

The Department of Commerce is asking for comments about 
Digital First Sale and the possible changes to copyright law
 that would allow an ebook to be resold.  

Here’s my letter.

The biggest problem with the resale of “used” e-books 
is e-book piracy.  Some think that cheaper books mean less reason to 
pirate books and that’s true to a certain extent, but used e-books also
mean that authors and publishers will no longer be able to prove 
that an online copy has been stolen.

Right now, publishers and authors license their books to specific 
resellers/distributors like Amazon Kindle, BN’s Nook, and Smashwords. 
If a book is available at any other site, the publisher and author know 
instantly that that book is pirated, and they help the authorities take 
these sites down.  

These sites are fairly common, and some look like legitimate 
book-selling sites so the consumer is no wiser that they are buying
 stolen books.  Some of these sites actually sell the books, others 
are scams which steal credit card information and install viruses 
on the victim’s computer.  

If e-books are sold used, the scam sites will be able to fly under 
the legal radar.

Pirate sites will claim that their books are being given away for free 
by legal owners so they can continue their dispersal of illegal copies.  

If e-books are sold used and a site or individual can sell thousands 
of copies  of the same ebook by saying that they are selling one used,
there will be no way  for the author/publisher to prove this.  
This will essentially make book theft a crime that can’t be punished.

Even readers who want to do the right things by buying legally won’t 
be able to tell who is a legitimate reseller and who isn’t.  

Readers looking for bargains will buy illegal books instead of legal 
ones, the profit margin for authors and publishers which is small now 
will plummet to the point that publishing will no longer be profitable
for anyone, and those who make the money will have done nothing
to create books.  

Allowing the sale of used e-books will destroy all value to copyright.

Marilynn Byerly, Author

Thank you, Marilynn Byerly.

My best wishes,

Rowena Cherry