Sunday, 26 October 2003

Copyright infringement by Amazon.com

Yesterday I was forwarded a copy of this message from the Authors Guild about a new program under which Amazon.com is making the full text of certain books available for searching and download from the Amazon.com web site.

The message from the Authors Guild was the first I had heard of this scheme, and I hadn't approved any contract to make the text of my books available in this form. (I'm not sure whether I want to, but I hadn't even been asked.)

I hold the copyright to my books, and my contract with my publisher requires my approval for any licenses of "subsidiary rights" (including rights to publication in any medium other than printed books).

But I checked and, sure enough, the full next of the most recent editions of both The Practical Nomad: How to Travel Around the World and The Practical Nomad Guide to the Online Travel Marketplace is available for search and download from the Amazon.com Web site, just as music and videos are available for download through Napster, Kazaa, and other file-sharing systems.

It should come as no surprise that Amazon.com is becoming more conspicuous as a plagiarist. Alexa, a subsidiary of Amazon.com -- with its offices located, bizarrely, in a national park -- has for years been engaged in systematic collection and use for commercial purposes of a comprehensive archive of unauthorized bootleg copies of everying it can find that has ever been available anywhere on the Web. Google has a similar "cache" both of Web content and of Usenet postings that has raised similar copyright concerns .

Alexa and Google claim that they allow Webmasters to "opt-out" of storage and redistribution of material on their Web pages by including "META NAME="ROBOTS" CONTENT="noarchive"' in their HTML code, or similar instructions in a "robots.txt" file. But that doesn't absolve Alexa or Google of copyright infringement, because:

  1. Under the law in the USA (where Alexa and Google are based) and most other countries, all copyrightable work is copyrighted from the moment of creation, and any use other than "fair use" is permitted only by explicit permisison ("opt-in"). Alexa and Google operate on the reverse (legally impermissible) assumption that unlimited copying and commercial use is permitted unless there's an "opt-out" in the HTML.
  2. Alexa and Google place the power to "opt-out" in the hands of whomever controls the HTML. But there's no guarantee that she who holds the copyright to the content controls the HTML in which the page is encoded. That's usually not the case, especially for freelance content producers.
  3. Alexa and Google's commercial use of their "archive" or "cache" of bootleg copies is clearly not "fair use". It's especially damaging to authors, photographers, and other producers of work that is licensed for time-limited availability on the Web. Freelance writers and photographers often depend for their livelihood on the ability to license the same work repeatedly in different markets or at different times. But long after the original Web site's license has expired, and the work has been removed from that site, bootleg copies remain available for free from the Google "cache" and the Alexa "archive" -- sabotaging the ability of the content producer to license the same work elsewhere.

It should be no surprise that large publishing and distribution companies like Google and Amazon.com are the Napster's (and worse) of text bootlegging. Creators -- writers, musicians, and others -- have long complained of publishers who appropriate their works without permission and use them for the publishers' profit, without compensation to the creators.

(It's worth noting that the U.S. Constution authorizes Congress to "secur[e] for limited times to authors and inventors the exclusive right to their respective writings and discoveries." There's no mention of any rights for publishers or distributors, and it's not clear that copyrights are intended to be capable of sale, as opposed to licensing.)

In 2001, in Tasini v. New York Times, the U.S. Supreme Court upheld copyright infringement judgments against the New York Times, Time Warner AOL, Newsday, Mead Data Central (Lexis/Nexis), University Microfilms, and others, for making available comprehensive searchable electronic databases of content to which the rights to such use were owned by the authors and photographers, not the publishers.

But the successful plaintiffs in the Tasini case have yet to receive a penny in damages, and the wholesale bootlegging of the entire content of the Web (or as much of it as they can get their hands on) by Google and Alexa continues unabashedly and unabated. It's par for the course that Alexa's parent, Amazon.com, now wants to distribute bootlegs copies of everything in Books In Print , and that it's asking publishers, not authors, for permisison to do so.

So my question is, if publishers like the MPAA and the RIAA really care about copyright infringement, why aren't they going after the big fish -- publishers who are, quite literally, trying to steal and sell the entire content of the World Wide Web, and entire libraries of work created by freelancers -- rather than going after people who they think might have stolen single songs? If this is really about "fair compensation for creators", why isn't the publishing industry trying to help creators collect from the Tasini defendants, or trying to stop Google or Amazon.com?

The near-inescapble conclusion is that publishers don't care about copyright: they care about their profits, whether through their own wholesale theft from creators or through suppression of petty retail theft by "file sharing". The real "copyright thieves" are, for the most part, publishers and distributors who steal from creators of music, text, photots, etc. -- not individuals who steal single copies from those publishers and distributors.

Link | Posted by Edward on Sunday, 26 October 2003, 15:13 ( 3:13 PM) | TrackBack (1)
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