ArtsWatch: Google Books Still A Step Too Far

Settlement agreement denied, called unfair to copyright owners
March 28, 2011 -- 8:04 am PDT
By Philip Merrill /

The Recording Academy actively represents the music community on such issues as intellectual property rights, music piracy, archiving and preservation, and censorship concerns. In pursuing its commitment to addressing these and other issues, The Recording Academy undertakes a variety of national initiatives. ArtsWatch is a key part of an agenda aimed at raising public awareness of and support for the rights of artists. To become more involved, visit Advocacy Action @ and sign up for Advocacy Action E-lerts.

On March 22 New York U.S. District Court Judge Denny Chin rejected the proposed settlement agreement between the Authors Guild and Google and scheduled a status conference on the case for April 25. The Google Books project, which has scanned millions of books and has already made much of their content and metadata searchable, would like to offer a combination digital library and bookstore. Authors Guild President Scott Turow said, "Readers want access to these unavailable works, and authors need every market they can get. There has to be a way to make this happen. It's a top priority for the Authors Guild." Groups pleased the agreement was rejected include Electronic Frontier Foundation, Open Book Alliance and Public Knowledge. Copyright concerns posed several major issues in Chin's determination that the agreement was not fair, adequate and reasonable, including orphan works for which owners cannot be located, and the intellectual property rights of foreign owners. As has been true for years, Google's proposal to allow authors to opt out of the agreement remains a major sticking point — Chin urged that this be revised to allow authors wanting to participate the ability to opt in. The change would clearly distinguish the out-of-copyright portion of Google Books from its planned marketplace of books in print, with Google serving as publisher or licensed distributor of copyrighted works according to traditional rules and roles. What is at stake is Google's desire to offer an integrated service that would provide a single point of access to all books, including those still protected by copyright but not in print. Many believe only Congress can offer new rules to govern the new possibilities offered by digital technology. Meanwhile, Google is likely to buck tradition and push for progress as it works with the Authors Guild to revise their terms of agreement.

Nevada U.S. District Court Judge James Mahan issued a verbal decision on March 18 finding that nonprofit Center for Intercultural Organizing's online publication of a newspaper article in its entirety was non-infringing under the fair use defense. Righthaven sued CIO on behalf of the Las Vegas Review-Journal and has engaged in a pattern of what Electronic Frontier Foundation has depicted as calculated lawsuits without basis and drew harsh words from Mahan. Although quoting or republishing all of an article without permission does not favor a finding of fair use, Mahan was convinced the Oregon-based nonprofit qualified for the defense since the article's reuse was purely informative and would not impact the commercial news market. Defendants are drafting a dismissal order for the judge's signature and Righthaven plans to appeal the ruling. PaidContent observed that "Righthaven's pursuit of these cases could backfire on the whole media industry" as they potentially cloud where fair use begins and ends.

On March 21 the U.S. Supreme Court declined to hear an appeal by Universal Music Group on procedural issues pertaining to UMG's court loss over calculations for Eminem's digital royalties. The wording of standard pre-digital era recording contracts was not specific whether permanent downloads should be calculated as sales or as licenses, with licenses qualifying for a higher royalty rate than sales. UMG's loss opens up the prospect that labels could owe big back royalties to legacy artists, but this court case is likely far from over. The plaintiffs lost the initial jury trial and subsequently appealed the earlier loss of their pre-trial motion for summary judgment. The plaintiffs won and UMG appealed on procedural grounds, arguing that plaintiffs' appeal was untimely and the appeals court should not have considered trial evidence. UMG cannot take those procedural issues any higher but could still appeal its loss on other grounds.

CTIA-The Wireless Association announced a new mobile app rating initiative on March 22. President/CEO Steve Largent said, "The mobile app market is growing exponentially and we understand the challenges that parents may face when determining what content is appropriate for their children. That's why we're proud to introduce this initiative so parents can make informed decisions regarding the apps their children download." CTIA also issued a request for proposal to build a database for developers to fill out a questionnaire describing their app and receive the rating applicable to their app's content.

On March 23 Adobe announced its Adobe Pass, an online video authentication service providing cable subscribers with free online access to cable programming from participating networks. Launch partners include Comcast, Cox, Dish Network, MTV Networks, Turner Broadcasting, and Verizon. Adobe Pass, which uses Adobe Flash where it is available or HTML 5 as an alternative, is an implementation of the TV Everywhere model that Comcast and Time Warner announced in June 2009.

Representatives of MPAA, the Office of the U.S. Trade Representative and RIAA expressed disappointment that the World Trade Organization deadline of March 19 passed without China's compliance with its WTO obligations to relax importation and distribution restrictions on American media. The deadline was imposed as part of America's WTO dispute with China in 2009, though representatives of the MPAA and others believe China is engaged in compliance efforts.

On March 23 Britain's Chancellor George Osborne delivered the government's 2011 budget, including an accompanying report, "The Plan For Growth." The plan supports "the establishment by industry of a Creative Industries Council, which can provide a voice for the sector with the financial community and coordinate action on barriers to growth." A strong advocate for the council's creation, UK Music CEO Feargal Sharkey said, "We are heartened that government recognizes music's unique potential."


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