Two decisions in two different countries about the same patent issue in a single day. How’s that for coincidence? An Apple vs. Samsung fight over a couple of user-interface patents has been decided independently in both South Korea and the US today.
The South Korean decision, which was issued first, was more balanced toward both sides: Samsung violated Apple’s patents on the “bounce-back” effect and slide-to-unlock, but didn’t copy Apple’s designs; Apple violated a couple of Samsung’s wireless patents. They each owe each other five-digit damage sums (Apple owes Samsung about 50% more than Samsung owes Apple), and sales of Apple iPhone and iPad and Samsung Galaxy products are temporarily banned in South Korea.
If this award stands, how is this going to affect the nascent tablet market? Will everyone but Apple get out of it lest they attract Apple’s unwanted attention if they do too well? With as many patents as there are in play, it ends up looking something like the Biblical concept of sin—no matter how well you try to behave, you’ve assuredly done something wrong just by existing. The “Mutually Assured Destruction” school of patent defense was supposed to safeguard against this, by giving companies ammunition to sue right back if another company sues them—but this doesn’t seem to be working out so well for Samsung right now, does it?
When we look at the decision Kodak announced today to sell its film division, are we looking at the future of the book publishing industry? For decades, Kodak’s name was synonymous with film. Now, as the company struggles in bankruptcy during a costly patent fight versus Apple, it is selling the very thing that once made its reputation.
Cast your mind back twenty-odd years ago to when the first consumer-grade digital cameras started coming out. Did anyone look at those grainy, costly things and think, “Hey, this is gonna replace film one day!”? (Well, maybe some people predicted it in the same optimistic sense as they’ve long predicted microfilm and book spools will replace printed books, but seriously?) Certainly Polaroid and Kodak didn’t seem to take it seriously—to their eventual chagrin.
As I wrote for TeleRead a while ago, it used to be that you could find even relatively obscure sizes of film at your local corner store. I was able to take and have developed photos using a then-30-year-old Brownie Hawkeye box camera, and never had any trouble finding film for it.
But after twenty years of development, all the obscure types of film went by the wayside, and even the more common ones have become harder to find. There was still a photo developing counter at the K-Mart where I worked 15 years ago when I worked there, but a few years ago they ripped it out for more space.
So maybe fifteen, twenty years ago, people might have looked at the immature state of digital cameras and thought, “Oh, no, that will never replace film. Maybe almost everyone will use it, but film will stay around forever.” People are saying that about e-books versus print books now. But after a couple of decades of improvement, Kodak is now selling the very thing that used to make Kodak Kodak. (It already took Paul Simon’s Kodachrome away.)
So given ten more years or so of e-books maturing, might we read stories about Big Six publishers divesting themselves of their printing divisions, finding it more economical to farm out whatever print runs are necessary anymore to print-on-demand?
This means that 1DollarScan users who have Evernote will be able to use the service’s apps on desktop computers, phones, tablets, ereaders, and other platforms to view, edit, and annotate the books they send in—making those books just like the web sites, photos, internal notes, and other material that users clip themselves.
Now while Evernote told TechCrunch that there’s nothing particularly special about this—1DollarScan is just using Evernote’s application programming interface (the “hooks” that it makes available to let other programs and services make use of Evernote’s own systems) the same as hundreds of other developers—I think it’s interesting in what it says about Evernote that it makes these systems so widely available. And we should be on the lookout for even more announcements of digital services using Evernote for storage since Evernote’s Trunk developers’ conference is tomorrow.
Evernote is kind of hard to categorize as a service. Is it for e-reading, as with 1DollarScan’s books? Storing articles to read later as with InstaPaper? Writing memos like a notepad you can read everywhere? Taking photos of things you want to remember and storing them securely? It’s for all of those and more. And its presence on even more platforms than Amazon’s Kindle means it has the potential for a wide degree of usefulness in its users’ lives.
In regard to the other matter, the Author’s Guild’s stance on 1DollarScan, I’ll note that the Guild might be making a lot of noise about the company “subverting the author’s fundamental right[s]”, but doesn’t seem to have moved to file a lawsuit yet the way it has with Google or HathiTrust. Is it doubtful about its ability to triumph, or cagey about taking on too many lawsuits at once? Either way, 1DollarScan continues to operate.
That being said, it’s not clear how firm the company’s legal ground really is—or even if the firmness really matters. Apple and Amazon are offering very similar services for music, though they did get licenses from the record labels to do so—but even though the first such (unlicensed) service, MP3Tunes, was found largely legal, it nonetheless ran up such high legal costs in defending itself that it had to file for bankruptcy. Sadly, our country’s legal system is biased in favor of entities with large pocketbooks. It remains to be seen what the Author’s Guild’s pocketbook will look like after it finishes going a few rounds with Google and HathiTrust.
The Department of Justice has filed a 17-page response to the motions for summary judgment filed lately by various parties in the agency pricing anti-trust case, and for those who are enjoying following the game of legal ping-pong, the DoJ has made a great return back over the net.
In the filing, the DoJ responds to arguments raised by Apple, Penguin, Macmillan, and the combination of Barnes & Noble and the American Booksellers Association. A number of the responses have to do with how various cases the parties cited don’t mean what they think they do, but there’s still plenty of stuff that won’t make ordinary readers’ eyes glaze over to go around.
The DoJ starts out by addressing the argument made in common by many who opposed the settlement that e-books are different and anti-trust laws shouldn’t apply to them. Funny thing, says the DoJ, but quite a few other businesses have tried the same “the rules shouldn’t apply to us” argument, including “[r]ailroads, publishers, lawyers, construction engineers, health care providers, and oil companies”. And time and again, the courts have shot these arguments down.
Suggestions that the antitrust laws are of no use when it comes to e-books are especially remarkable in light of the unmistakable consumer harm that resulted from the conspiracy in this case. The conspirators eliminated the “wretched $9.99 price” that so attracted the reading public and so infuriated publishers, Compl. (Docket No. 1) ¶ 32, and made sure that Apple would not have to contend with what it viewed as senseless competition as it entered the e-book market. Now those conspirators that have not settled with the United States seek to upset the settlements that have been reached, and thereby delay the restoration of competition. Those efforts have no basis in law, and this Court should reject them.
In response to Apple’s objection that it’s being punished without its own trial yet, the DoJ says that no existing legal theory allows Apple to be a dog in the manger and prevent everyone else from benefiting from the settlement—especially since Apple’s own contracts with publishers allowed immediate termination by any party on 30 days’ notice—not too different from the 7 days’ notice required by the settlement. (Certainly not different enough that Apple has protested on those grounds.) Apple’s complaint that the settlement changes who has the responsibility for pricing is “bewildering” because it’s actually giving Apple the ability to set its own price that it did not have before—though, of course, the thing that’s really bothering Apple is that everyone else will get to do it, too.
As for Penguin, the DoJ effectively accuses it of trying to mislead with statistics by pointing the court at commenters who incorrectly assumed prices had gone down based on limited information—while Penguin’s own prices had risen by an average of 17% in the four weeks after Penguin implemented agency pricing. It also says that, under existing case law, it is under no obligation to produce any economic analyses in support of its assertion.
The DoJ also rejects Macmillan’s assertion that the settlement will give Amazon back control over the entire e-book market, noting continued heavy competition by other companies—and pointing out that even if Macmillan was right, blunting competition is not the purpose of anti-trust law—rather, it’s “to protect the public from the failure of the market.”
Apparently the only new argument offered by Barnes & Noble and the ABA was the idea that the overwhelming volume of comments opposing the settlement should demonstrate it is not in the public interest. (Even I think that’s kind of a silly assertion, as much as some of those opposed attempted to stack the ballot box with form letters.) The DoJ points out that most of those comments didn’t come from entities who wanted to serve the public interest, but rather from those who stood to benefit by the continuation of agency pricing.
This is all very exciting. I wonder who the judge is going to find most convincing? Will the settlement go through?
I also wonder what the Department of Justice would have to say to the filings from Bob Kohn, assuming the judge permits them. Given what they wrote about him in the original response to comments, it would almost certainly be amusing.
You can tell we’re getting close to the Presidential election by just how silly attempts to politicize things get. Case in point: Amazon’s new “heat map” of how well “red” and “blue” books are selling in different states. Amazon basically calls any given book “red” or “blue” based on marketing materials, reader votes, and so forth, and then tracks which books have been selling better in which states over the last 30 days. The result is a largely-pink map of the USA which seems to suggest that nearly everyone’s reading Republican, regardless of what the election is going to look like.
Still, there’s no getting around the fact that even reliably blue states like California come out in shades of red in the Amazon map. According to publishing-industry analyst Michael Norris, of Simba Information, that might be due to the right’s ability to connect with its readers. “I can tell you that there are conservative imprints and conservative publishers that are just brilliant at figuring out what kind of books their audience wants to read,” Norris told Wired. “There just aren’t aggressively left-leaning imprints like that.”
Even that may be giving this map too much credence. There’s absolutely nothing scientific about it. Even leaving aside the fact that people may be reading the books not because they agree with them but to know what the “other side” is thinking, the sheer fact that a book is either completely red or completely blue assigns the same weight to a book by a serious political thinker as one by a loony conspiracy theorist.
All you can really tell from this map is that the books Amazon categorizes as red seem to be selling better than the books Amazon categorizes as blue. But I expect that’s not going to stop anyone who wants to cite it as “evidence” for their favored political prognostication.
How do authors feel about their publishers? The UK’s “Writers’ Workshop” site has the results of a survey of about 300 authors, both professionally-published and self-published, conducted through assistance from several authors’ associations. Two thirds of those polled had published at least 3 books, and 70% had published one within the last twelve months (and another 18% between 1 and 2 years ago), so they’re mostly authors of recent vintage and well-informed.
The poll asked various questions about how authors relate to their publishers—how happy they are with its editorial services, cover art and blurbs, advertising campaigns, and feedback—and how likely they are to self-publish in years to come. The results are quite interesting: the authors are happy with the editorial aspects, production values, and the promptness of payment—but are considerably less happy about the quality of communication and marketing support by their publisher, and about 3/4 of them are at least considering the possibility of self-publishing in the future. (Found via “Ask Nicola”.)
The statistics are rather damning. For example, question 13: only 20% of surveyed authors felt as though they were “closely involved” with their publisher’s marketing plans. Question 14: Only 14% of surveyed authors felt the publisher made full use of their abilities and resources in its marketing campaign (and only 24% more were mostly happy with how their publisher included them).
Question 17: Only 22% of surveyed authors were asked by their publisher for feedback in such a way that they could be completely honest about their feelings, and 46% weren’t asked what they thought at all. Question 20: Only 26% of surveyed authors say they would never consider self-publishing through Amazon. And question 23: If asked to move to another publisher, only 37% are happy enough with their current publisher to say they would definitely stay.
Of course, these results tend to cover only a relatively few authors, from the UK. It’s chancy to generalize too much to the state of publishing in the USA or elsewhere in the world. But given that the Big Six publishers are multinationals who publish in the UK as well as here, it’s hard to imagine their behavior, or authors’ responses to that behavior, would be all that different on this side of the Big Pond.
It’s all to easy to rail against “those idiot publishers” and suggest that businesses whose suppliers are that unhappy with aspects of how they do business and who have such readily-available competition won’t stay in business for too long. But really, it’s unclear whether publishers will be hurt so much by this in the long run. Certainly there are enough other things they could be hurt by that it’s hard to say whether this straw might break the camel’s back.
Still, it’s interesting to watch these rumblings of discontent and wonder if the publishers will sooner or later take them into consideration.
Long-time young-adult literature fans might have been left scratching their heads when Amazon recently announced that the The Hunger Games trilogy had passed Harry Potter as its all-time bestselling young adult series. However, all became clear when Amazon mentioned that the series had been selling like crazy as e-books: for every print version of a Hunger Games book sold, readers bought 3.7 Kindle e-book copies.
Of course, the Hunger Games books have been available electronically for some time, whereas Harry Potter only became available in the past year. And Hunger Games just had a blockbuster movie adaptation to drive interest in the paper books, while my Mom told me that Harry Potter was very much “yesterday’s news” among the kids at the high school from which she retired as librarian this year. But still, I find this a very interesting statistic as it seems Hunger Games sales are considerably more skewed toward e-books than fiction book sales as a whole.
So what does that say about the target audience? Are young readers skewing more and more toward e-books as they have more of a taste for gadgets than older generations? Are they more likely to engage in the impulse-buy of downloading an e-book?
The price of the Kindle editions might be a factor, too: the original book is available for $1.99 for Kindle right now (or $5 in a movie tie-in edition), with the other two books $5.99 each—pretty cheap for traditionally-published bestsellers, and definitely within the price range of kids with allowances to spend. Weirdly, a trilogy edition is available at $18.99 for Kindle, which is more than you’d pay for the original three books if all of them were $5.99!
This also may give the lie to the idea that people aren’t interested in reading anymore. It sure seems like quite a few still are!
Those of us of a certain age are sure to hold warm recollections of Choose Your Own Adventure stories—those fun little interactive tales from the 1980s filled with instructions to turn to certain pages if you made particular choices in the narrative. For a while, they were all the rage, and there were dozens of them published. They kind of faded out, but nonetheless they’re still probably the most commercially successful example of hypertext fiction.
These books have been available as e-books for a while, but a start-up called Visual Baker wants to bring one of them to the iPad and iPhone in a major way. It’s running a Kickstarter project, working with series creator Edward Packard to bring one of his books to the iPad in an interactive, illustrated, animated, and socially-enabled version. The project has a quite modest goal of $12,000, and it has already reached $2,500 in pledges with 24 days to go. (Found via AppleTell.)
The Kickstarter page has some of the new artwork for the book up, and a video that includes a statement from Packard and shots of some of the animated pages and art from the application. It looks pretty impressive. If the project is successful, they plan to do several other Choose Your Own Adventure books next.
And since anyone who pledges at least $5 will get the app when it is finished, it’s quite reasonably priced for what you get, too. Rewards for higher donations include a non-interactive PDF version, stickers, concept art PDF books, and even (for two people who donate $800) the chance to participate in creating a new ending.
When I found out about the project, I expected little more than a nostalgia trip, but reading through the Kickstarter and looking at the art, I find myself intrigued. As limited hypertext-style works themselves, Choose Your Own Adventure books could be considered the skeleton of the kind of multimedia interactive experiences possible today. And if this project funds, Visual Baker will be clothing one of those skeletons in flesh. It seems like a natural fit for the medium.
Think that Amazon’s parcel pickup lockers might represent a threat to brick-and-mortar bookstores, if the company ever gets around to putting enough of them in? Well, in the UK, Amazon appears set to leapfrog over that rollout obstacle by teaming up with a courier service called Collect+ that already offers parcel pickup and delivery from 4,900 shops nationwide—many of them convenience stores that are open a lot later than the local post office.
The Telegraph reports that Amazon has begun trying the plan out on a small scale with books and clothes, but plans to roll it out nationwide. This will, of course, spark concerns among traditional “high street” retailers who had ample cause for alarm about Amazon already. It’s one thing to offer greater convenience and reach for e-books, but if they can extend that same convenience to paper books, too, the bookstores could be in even more trouble.
I wish Amazon would hurry up and roll something like that out in my area. Since I no longer have a car, package delivery has become a bit challenging. I’ve used ship-to-store services from both Wal-Mart and Best Buy and been very satisfied with the results, but I’d prefer to order from Amazon which has both the prices and selection I want.
Of course, shipping is irrelevant where e-books are concerned, but sooner or later you need physical goods. (It’s quaint to look back on the early days of the commercial Internet, when people experimented to see if they could live solely on items they bought on-line. They’d have no problem now.)
On Silicon Valley news and opinion site Pando Daily, Hamish McKenzie makes an interesting observation about magazines and their attempts to jump to electronic versions. McKenzie sees their problems as not so much difficulties moving to digital as it is a problem trying to push an obsolete bundled format in digital.
It’s a similar point to something I said toward the end of my post about the free first issue of Amazing Stories the other day, in which I suggested such an e-magazine might work better as individual stories rather than big bundles of them. In the old days of print, magazines were printed because that was the only economical way to get many different short articles and stories to readers: bundle them up together so they are economical to print.
But in this new tablet-enabled world, people don’t necessarily read magazines—they read individual stories, and they don’t care where they get them. They use aggregators like Flipboard, Zite, or RSS apps like Reeder to create their own personalized magazines out of a variety of sources, and read those instead. Forcing consumers to download a huge chunk of content that they might not even read most of makes less and less sense as time goes by.
In the future, magazine brands will be producers, endorsers, commissioners, curators, designers, and promoters – but they won’t primarily be bundlers. The bundle may still exist, but it will be a much smaller piece of the magazine business than it is today. The printed product, for instance, might ultimately be a prestige item distributed occasionally as a supplement to, or showcase of, the brand’s best work according to a particular theme or period of time. It’s difficult to envisage a printed product that in 10 years will be profitable when produced on a weekly or monthly basis.
And magazine publishers, as well as the journalists and editors who write them, will either adapt or go out of business.
It’s an interesting idea, and we’re seeing it start to happen today in some ways, with the emphasis on individual stories and sharing them through social media. I also see a lot of stories from co-owned e-news sites republished in each other’s feeds. Ars Technica carries Wired articles, and vice versa. But there are still plenty of e-magazines that publish entire monthly issues that download into your tablet in one big chunk.
I wonder how many of those there will be in five or ten years?
More interesting news to come out of the Google Books case. Publishers Weekly and paidContent report that Judge Denny Chin has granted permission for several academic and librarian groups and the Electronic Frontier Foundation to intervene in the case by filing amicus curae or “friend of the court” briefs. These groups want to file in Google’s favor because they see the case as a terrific opportunity to expand the power of the ‘fair use’ doctrine.
In a recent memorandum, the judge set a schedule of receiving various motions pertaining to the amicus briefs and motions for summary judgment up through November, with oral arguments to begin in December. That will be an interesting Christmas present: the chance to watch the Authors Guild and Google slug it out.
It’s not surprising that academics, librarians, and the EFF would want to argue in favor of fair use. The Library Copyright Alliance and EFF filed a similar brief in the related Authors Guild vs. HathiTrust suit. And in general, academics and librarians have a strong interest in the freer use of information.
In their brief (PDF), EFF and the librarians make the case that Google Books “has become an essential research tool,” that it makes possible new forms of research that were impossible before, and that it makes it easier for readers to find books and thus improves sales—and it also helps authors in another way, by helping them do research too. They argue that Google Books’s “tremendous public benefit tilts the analysis firmly in favor of fair use,” as it helps “To promote the Progress of Science and useful Arts.” It also draws upon a thumbnail image Google Image Search precedent that held that thumbnailing was indeed a fair use.
On a related but separate note, Google has gotten permission to appeal the award of class action status to the Authors Guild in the case—which is why arguments in the main thrust of the case have been delayed until December; Judge Chin can’t really do anything until the appeals court decides whether the Authors Guild gets to be a class or not.
Whatever gets decided in this case, it’s going to be appealed and argued over for years to come, but it has the potential to either expand or cripple fair use considerably. But cases like this are the way that our legal doctrine evolves. Someone does something blatantly illegal with possibly laudable reasons, and it’s up to the courts to adjust the laws to fit.
It’s really a decent system when you get right down to it, because there’s no way anyone passing laws at any given time could possibly hope to predict the impact they and future technology will have on each other. So sometime in the future when something the laws don’t adequately cover happens, aggrieved parties file suit, the defendant lawyers up, and new laws get made.
It will be interesting to see who the new laws that come out of this case will favor. Maybe in a few years we’ll finally know.
As I’ve pointed out elsewhere, Internet-posted fanfiction from the ‘90s comprised some of the original on-line “e-books”. And it’s still insanely popular today, even occasionally spawning professionally-published books that go on to become mega-hits. But the question of the legality of fanfic continues to be a controversial one. How do you know if your fanfic is “legal”? And what should you do if you get a cease-and-desist notice?
Over on io9, Lauren Davis has consulted with fanfic law maven Rebecca Tushnet to produce a lengthy, detailed analysis of how copyright pertains to fanfic, how fanfic fits into the four-factor test for fair use, and what to do if your fanfic gets a cease-and-desist order. The article goes into a number of legal precedents and is quite interesting in a number of ways. (Found via Techdirt.)
Of course, the only real way to find out whether a particular fan work is “fair use” or not is to take it to court and let a judge decide, and not many fanfic writers are going to want to do that. Fortunately, more and more creators are coming to recognize the promotional power of fanfic as an incitement to readers to investigate and purchase the original works.
But perhaps one of the most fascinating things about the article comes in the comment thread that follows it, in which Steve Vander Ark, creator and publisher of the Harry Potter Lexicon website and subsequent book, discusses the legal reasoning behind and the impact of the lawsuit that prevented the book from being published in its original form.
He points out that the original website had asked and been granted permission by all parties concerned with Harry Potter copyright ownership to use copyrighted material on its website…so why was it suddenly not kosher to use the same material in a book that was just that same website in another form? That being said, he was nonetheless happy with the judge’s decision, as it provided guidelines he could use to rewrite the book to pass legal muster and be published after all.
The three-ring circus continues. Apple, the two non-settling publishers, and the Authors Guild have filed legal briefs in response to the Department of Justice’s proposed settlement with the three publishers who are settling. Unsurprisingly, they’re all against it, and tend to share similar arguments. One kind of funny thing here is that, though the judge had asked them to make their oppositions clear during the public comments period, these filings after it ended represent the first peeps we’ve heard out of some of them in terms of their precise feelings about it.
Apple insists (PDF) that by forcing those publishers to terminate their agency pricing contracts with it, the DoJ is punishing Apple a year before it even comes to trial. Bob Kohn, whose own brief I mentioned the other day, is against allowing Apple to skate while Amazon gets to terminate its own agency contracts—because Apple could use its “most-favored nation” clause, in which it is allowed to match the lowest price of a given e-book anywhere, to scoop the price advantage of non-agency without having to pony up its wholesale cost.
Penguin (PDF) is unable to resist making a literary allusion: “The Emperor has no clothes.” Interestingly enough, both Penguin and Macmillan (PDF) insist that there’s no actual evidence e-book prices even did rise during the agency pricing period. (In other news, black is white, love is hate, and short is tall. Just goes to show how easy it is to massage statistics into saying whatever you want them to say, no matter what side you’re on.) They also argue that the DoJ has not proven that overturning agency pricing actually is in the public interest, and insist that the settlement will do immeasurable harm by allowing Amazon to continue using predatory pricing to build its market share.
The Authors Guild likewise argues (PDF) that allowing Amazon to continue selling e-books at a loss is “destructive of competition” and requests a hearing into the matter.
I wonder if we will see a hearing? Given the dramatic levels of opposition to the settlement we’ve seen thus far (with the vast majority of (admittedly largely rubber-stamped xerox copies) comments being against it), it seems unlikely the judge would be able to get away with just rubber-stamping it. Either way, it should be interesting to find out.
Why does anyone even do top 100 books lists anymore? The only thing they’re really good for is inciting controversy, because no matter what books you pick, someone will nitpick your selection for slights real and imaginary—whether it’s leaving favorite authors off the list or skewing your choices toward certain factors. I have yet to see any sort of Top X list that does not attract this sort of controversy.
Case in point: NPR’s recent announcement of a “100 best-ever teen novels” list. With 100 books to choose from, you can bet people will find something objectionable. And they did. While lauding some of the choices, blogger Megan Crane at Forever Young Adult pointed out that the list includes an awful lot of vampires, most books are from the last few years, and the list is also “extremely white.”
NPR made ridiculously arbitrary and inconsistent decisions as to which books they believed qualified as YA and which books were completely removed from the voting process. If something was nominated enough, it should have been left on the list. If enough people consider it YA, then it shouldn’t matter what a panel of a few people decide. Pride and Prejudice was too “Universal” (what on earth does THAT even mean in terms of this poll?) and A Tree Grows In Brooklyn was too “Adult.” Ender’s Gamewas removed because its “violence isn’t appropriate for young readers.” […] I can’t even respond to that without my brain exploding[.]
Clearly, audience-selected "Best Ever" lists are dangerous and problematic, but the absence of any indication of NPR’s awareness of the glaring neglect on their list is also troubling. A list of "Best-Ever" books that declares only two books about teens of color worthy keeps all of these amazing stories in the margins, and arguably marginalizes them even further. When the world of reading remains so predominantly white, children and teens of color receive the clear message that they don’t belong. It sends a message directly from readers as well as NPR that writing about people of color is not valuable or valued, that their stories aren’t as important as the trials and tribulations of Edward and Bella; the Twilight series ranks #27.
I’m not saying that these folks don’t make some good points about the list. Indeed, if the list really was mostly reader-selected, the list itself might say some interesting things about the people as a whole whose input made it up. Perhaps those readers just don’t care about protagonists of color. But any time someone tries to come up with as many as 100 examples of the best things in their class, they’re guaranteeing that nobody who has an opinion will entirely agree with them.
Here’s some more news about the Georgia State University lawsuit over copyright infringement in digital academic course packets. The judge has issued her ruling (PDF) on the remedy she would order concerning the 5 counts out of the 99 infringements submitted that she found were not fair use under the law. This ruling clarifies some confusion over the previous ruling, as both sides were making hay out of claiming they had “won”.
Well, now the judge has clarified the winner: it was Georgia State University. Over the course of the ruling, she clarifies a few points about the nature of the fair use that were fuzzy, having to do with the amount, type, and permissions of the access. And though she does not have to, she orders the plaintiffs to pay the legal costs of the defendant because some of the plaintiffs’ bad behavior over the course of the suit “significantly increased the cost of defending the suit.”
The judge also saw no need to slap GSU with the kind of complicated digital permissions record keeping system the plaintiffs wanted. It would only serve to increase costs, while in fact through the way they managed their program GSU was already trying to comply with copyright law anyway.
It seems pretty clear that the forces of fair use have won this round. Though the battle is far from over, as the case still has to pass muster on appeal. That could drag on a while, and possibly lead to unexpected consequences. In the mean time, universities can rest secure in the knowledge that they can get by with using a small portion of a given copyrighted work with impunity in their course packets.