Thursday, 6 November 2003

Lawyers, bloggers weigh in on book page images

Authors’ lawyer (and former book editor) Charles E. Petit , who apparently represents a number of short-story writers, offers both an excellent page of advice for authors on dealing with and some right-on commentary on the issue in his blog, starting with this article on 27 October 2003 (check his whole archive since then for the rest of the thread, describing in detail his communications with regarding the infringement of his clients’ copyrights).

As of 31 October 2003, when was reported in the press as saying that only 15 authors had asked to have their works removed from the giveaway program, Petit noted that, “I am personally aware of more than 15 authors who had asked for removal by the close of business on Tuesday, and I’m certain there are others I don’t know about.”

Petit also writes, inter alia :

Using a 56k dialup connection, it took me less than six minutes to get a “free” copy of a 9,000-word article in investigating one of my clients’ collections of academic works. It’s an important, indeed seminal, work in that field; and it took less than five minutes thereafter to run the result through OCR software and get a compact, editable version that could easily have been posted on the Internet through any of the various pirate sources. Needless to say, my client was not very pleased….

What this really points out more than anything else is that S&M [sales & marketing] dorks don’t care about legalities. Only someone who had no familiarity with Tasini could have conceived of this program, or at least conceived of it without running immediately to the legal department for advice. (That goes for you, too, Google and B&N; don’t think my clients and I are not watching.) Instead, because getting a solid legal review might have derailed this neato idea before it started, whoever came up with it probably started lots of planning in an effort, whether conscious or not, to build so much momentum that it could not be easily derailed by some crummy lawyer “who doesn’t understand sales in the first place.”…

An individual author may decide that he or she does not care if the material becomes available through Amazon’s program. That is his or her right. It is not, however, the right of either Amazon itself or the publisher (unless special contract language exists) to make that decision for the copyright holder….

This should have been done on an opt-in basis, not an opt-out basis. The publishing contracts and copyright law demand nothing less.

Eugene Volokh notes the issue in The Volokh Conspiracy , one of the leading legal blogs, but says, “I express no views on the economic or the legal question (in part because to answer the legal question I’d have to see just what the contracts say).” IMHO, saying he needs to read all the contracts (while true, in a sense) is missing the essence of what seems to be claiming: that the right of publishers (and perhaps, as Petit suggests , distributors) to dispose of electronic rights is somehow inherent by default in the right to print publication, irrespective of copyright ownership (as stated in the book itself) by the author, and even in the absence of any explicit contractual grant of electronic rights. That’s exactly what the Supreme Court’s decision in Tasini v. NYT would seem to imply that they don’t have.

Like someone who likes free MP3’s but who knows that Napster infringes copyrights, Volokh also seems reluctant to criticize such a “worthy endeavor”, by which I guess he means “a program I might want to make use of myself”.

Brian Dear’s Nettle blog makes the same ambivalence — he would find it useful himself, but recognizes that it’s based on copyright theft — more explicit in Unfair Use? Amazon’s Free Book Giveaway and More on Amazon’s Search Inside the Book :

For someone like me who’s spent years doing research for a nonfiction history book, it’s an incredible tool. This is the best thing on the web since Google unleashed a fully searchable Usenet archive dating back to 1982.

However, I am doubtful the service — as it exists today — will last long. It is too good.

Why is it too good? Because if you’re determined, you can copy entire chapters out of books —- or, if you are really determined, entire books. Here’s how…

How could this kind of feature possibly qualify as fair use of a copyrighted work? Amazon does not seem to place any burdens or restrictions in the way that would prevent such unfair use —- for that is surely what this is.

UCLA corporate law professor (and law book author) Stephen Bainbridge also voices this ambivalence in his blog in Amazon’s new search feature and The publisher—author conflict of interest .

Books sold to law students for secondary reading are my stock in trade. From my perspective, what Amazon is doing is no different than what Kazaa is doing to music….

As a researcher, I have to agree: it is incredibly useful. It will help me satisfy law review editors’ insatiable desire for citations. As an author of low volume reference works, however, I am afraid it will eviscerate my modest sales.

When he reviewed his particular contract with his publisher, Bainbridge discovered that even he, a commercial law professor, had explicitly signed away electronic rights to his books, without realizing or remembering having done so. But not all book contracts include grants to the publisher of electronic rights — I know mine don’t, and from my limited knowledge, I suspect most don’t.

There’s more discussion in this thread at Slashdot and in The Importance Of .

(You can seaa all my coverage of this topic since I first learned of’s program in the Writing and Publishing section of this blog.)

[Addendum, 6 November 2003: As of this afternoon, the “Search Inside This Book” links and banner over the cover image have been removed from the pages listing my books, as have the previous “Look Inside the Book” excerpts. (Evidently will no longer provide for display of only selected pages: now it’s the entire book or none of it. And they’ve reinstated earlier versions of the cover images — even going back, for The Practical Nomad Guide to the Online Travel Marketplace, to the first version of the cover they ever used, from the publisher’s pre-publication catalog, with a different title, subtitle, and look from how the book actually appears in print.) I guess that, even though they haven’t deigned to talk with me, they are reading this blog, and noticed what I said in yesterday’s entry . Come on, guys and gals: if you’re reading this, and we both know you are, let’s talk directly, OK? You know where to find me if you truly are willing to work with , and not against, authors and our interests. As I’ve outlined, I think there’s a great opportunity to make this into an electronic text distribution system that benefits, publishers, readers, and writers.

Also today, the New York Times has a lengthy piece in the Circuits section on’s “Search” program. (They still don’t want to admit that “search” is not the same as “page-image delivery”.) The Times reports that my publisher, Avalon Travel Publishing, “contacted its 140 writers to explain the program and offer to remove the books of those declining to take part…. 10 authors … asked that their books be withdrawn.” But the words “copyright” and “infringement” never intrude on the picture painted by the Times; also unmentioned is the fact that the governing legal precedent is the one in which the U.S. Supreme Court upheld the liability of the Times itself (and its co-defendants) for wholesale plagiarism in granting “licenses” for electronic distribution when their contracts with writers gave them only print rights.]

Link | Posted by Edward on Thursday, 6 November 2003, 07:57 ( 7:57 AM)

The Times article, which one can access without registering by searching for the line quoted by Ed, is surprisingly bland. Is it possible that only 10 of 140 Avalon Travel Publishing authors decided to opt out of Amazon's power grab? Do the other 130 figure they have nothing to lose? I wonder....

Posted by: David Stanley, 6 November 2003, 21:00 ( 9:00 PM)
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"Don't believe anything just because you read it on the Internet. Anyone can say anything on the Internet, and they do. The Internet is the most effective medium in history for the rapid global propagation of rumor, myth, and false information." (From The Practical Nomad Guide to the Online Travel Marketplace, 2001)
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