Author Archives: Authors Alliance

Trump v. Woodward, Copyright Ownership of Interviews, and Government Works

Posted February 2, 2023

Earlier this week, you might have seen news that former President Donald Trump has filed a new lawsuit, this time against journalist Bob Woodward and his publisher Simon & Schuster. The suit alleges, among other things, that Bob Woodward and Simon & Schuster are infringing Trump’s copyright interests by copying and distributing eight hours of “raw” interviews that Trump gave to Woodward over the course of 2019 and 2020. The complaint alleges that the interviews were recorded by Woodward for purposes of his book, Rage, which was released in September 2021, on the condition that the recordings only be used for that book. In October of 2022, and without Trump’s consent, Woodward and Simon & Schuster released The Trump Tapes: Bob Woodward’s Twenty Interviews with President Donald Trump, which contained nearly complete audio recordings of the interviews, prompting Trump’s lawsuit.

The suit is actually pretty interesting from a copyright perspective and might yield some lessons for those who work with interviews or oral histories, or who interact with papers of elected officials. We thought it was a good opportunity to talk about some of the issues that it raises that we commonly hear about from authors:

Copyright in Interviews

A important question in the suit will likely be whether Trump has any copyright ownership interest in the interviews. Ownership of copyright in interviews is not as clear cut as you might think. In a typical interview, oral history, or similar recording you’d have at least two people contributing – the interviewer (in this case, Woodward) and the interviewee (Trump). Assuming for a moment that such contributions are sufficiently original and creative–not a high bar– and knowing as we do that they are adequately fixed since they were recorded at the direction of both parties, you’d probably conclude that rights in the interviews would rest at least originally with one or both of Woodward or Trump.

Over the years a few commentators have written about the issue of rights in interviews, and two basic approaches to ownership have emerged:

A “split copyright” theory: concluding that the contribution of the interviewer and interviewee are actually two separate works, each owned independently of the other.
A “joint ownership” theory: concluding that the contribution of the interviewer and interviewee were created with “the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole” and therefore there is just one work with two copyright owners.

Surprisingly, there isn’t much clear case law on point. Probably the most helpful case is Suid v. Newsweek, a 1980 district court case that takes the “split copyright” approach. That case was brought as a federal copyright infringement claim by Lawrence Suid, who in 1978 published a 357-page book titled “Guts Glory-Great American War Movies.” The book included previously unpublished interviews that Suide conducted with figures such as Bruce Wayne, Jack Valenti, and Michael Wayne. Newsweek in 1979 published a four page article about John Wayne that included interview quotes copied from Suid’s book. Suid sued for copyright infringement. For the interviews, the court concluded that Suid did not have a valid claim because the quotes originated with the interviewee (in this case, Wayne) and not Suid himself. The court explained, “the author of a factual work may not, without an assignment of copyright, claim copyright in statements made by others and reported in the work since the author may not claim originality as to those statements.”

This “split copyright” approach is also the one apparently taken by the U.S. Copyright Office when it reviews registration applications for interviews. The Copyright Office Compendium III (Section 719) explains that:

The U.S. Copyright Office will assume that the interviewer and the interviewee own the copyright in their respective questions and responses unless (i) the work is claimed as a joint work, (ii) the applicant provides a transfer statement indicating that the interviewer or the interviewee transferred his or her rights to the copyright claimant, or (iii) the applicant indicates that the interview was created or commissioned as a work made for hire.

Though the Copyright Office guidance isn’t binding on the courts in this case–and for that matter, neither is the decision of the district court in Suid–it is the long-standing position of the Copyright Office going back to at least 1984 (see Section 317 of the Compendium II).

For the “joint copyright” approach – the logic is straightforward and favored by several commenters including prominent treatises such as Patry on Copyright and Nimmer on Copyright. John A. Neuenschwander, author of the extremely helpful A Guide to Oral History and the Law also favors this view. Because a joint work is only created when there is intent that the contributions be merged, it does raise important factual questions about what the parties were thinking when they conducted the interview.

As for Trump and Woodward, the difference between which of these two approaches might apply could matter a great deal. If the interviews are considered two separate works, and Trump actually owns rights in his portion of the interview (a big “if” – more below), he may well have a valid copyright infringement claim. If it is a joint work, however, he may not have an infringement claim but could have a claim to a share of the royalties. That’s because for a joint work, an owner of an interest in that work is allowed full use of the work, but has to account to the other joint owners for any profits resulting from that use.

Government Works

Whether Trump has any interest at all–either as a joint-owner and independently–depends on at least one other determination: whether Trump’s contributions are a “work of the United States Government.” It’s an important question for this case, but also an issue whose resolution could have important implications for authors who are using source materials that originate with U.S. Government officials, particularly elected officials.

Section 105 of the Copyright Act provides that “Copyright protection under this title is not available for any work of the United States Government.” And, a work of the U.S. Government is in turn defined as “a work prepared by an officer or employee of the United States Government as part of that person’s official duties.”

For Trump’s case, this matters because he was President at the time that he granted the interviews. So, the question is whether Trump’s contributions are a “work of the United States government” – i.e., were they prepared by “an officer or employee” of the government, and were they made “as part of that person’s official duties”?

As you might imagine, for most people receiving a paycheck from the federal government, this is a pretty straightforward question. Their employment status and job description are well defined, and it’s usually easy to identify when a work falls within or outside their official duties. For example, a lawyer for the Department of Justice who at night writes fantasy novels would be just as entitled to copyright protection for those novels as any other author would for their own novel. Similarly, when that same lawyer writes a memo for a case they are working on, it would be well within the scope of their employment.

But, the office of the President is a bit different, and as far as we’re aware, there isn’t clear guidance on whether creative works of the President in this context would be covered by Section 105. The statute isn’t widely litigated-–there are only about ten published cases ever that say anything about what it actually means–-but the Supreme Court in Georgia v. Public.Resource.Org recently had the opportunity to explain that “the bar on copyright protection for federal works . . . applies to works created by all federal ‘officer[s] or employee[s],’ without regard for the nature of their position or scope of their authority.” And for its part, the Copyright Office has interpreted this to mean that “this includes works created by the President; Congress; the federal judiciary; federal departments, agencies, boards, bureaus, or commissions; or any other officer or employee of the U.S. federal government while acting within the course of his or her official duties.” One would imagine that Trump’s lawyers would push back on such a view–potentially arguing that the President is neither an “officer” or “employee” of the U.S. Government, but in a category all its own (an argument not without precedent in other contexts) or alternatively, that even if he is covered as one of those categories of individuals, his interviews were not part of his “official duties.” Whether either argument would be successful, we don’t know.

If this suit actually moves forward, it will be an interesting one to watch, especially for authors engaged in writing that relies on interviews, oral histories, or materials related to the President.

Other notes, if you care to read more

If you’re interested in the issue of copyright in interviews, there are a handful of cases addressing ownership in interviews under common law copyright (i.e., state law that was formerly applicable, but not here). A few of the most cited are Estate of Hemingway v. Random House, a NY case from 1968 in which Hemingway’s estate asserted a common law copyright claim against Random House for publication of Hemingway’s oral statements, and Falwell v. Penthouse International, a case arising under Virginia law in which Reverend Jerry Falwell sued Penthouse for publication of his oral statements. Both those cases raised issues about rights in oral statements that were never “fixed” (e.g., written down, recorded) with the authorization of the speaker. But neither is particularly helpful for this Trump-Woodward case, both because federal law applies and because it seems clear that Trump authorized the recordings.

You may also encounter an unusual case, arising under federal copyright law, titled Taggart v. WMAQ Channel 5 Chicago, a short opinion from the Southern District of Chicago from 2000. The case was brought as a pro se action by Arthur Taggart, an individual who was convicted of and incarcerated for multiple felonies. Taggart was interviewed by WMAQ, a Chicago TV station while in prison. WMAQ then broadcast portions of those interviews, which Taggart did not consent to, highlighting unfavorable facts that Taggart admitted to on tape. Taggart sued for copyright infringement, but the court dismissed his claim. The court made several highly questionable assertions about Taggart’s potential interest in the work. For example, suggesting that even though the work was recorded with Taggart’s approval, because Taggart was not directly in control of the recording device, he could not claim an interest: “if anyone was the ‘author,’ ” the court reasoned, “it may very well have been the cameraman who fixed the ideas into a tangible expression, the videotape.” The court also suggested that, despite Taggart communicating quite vividly in the interview, and WMAQ reproducing his expression verbatim, “the utterances made during an interview are not an expression of an idea for the purpose of copyright law, they are simply an idea, and thus not subject to copyright protection.” This approach to fixation and creativity have been criticized in several places (e.g., this helpful law review note by Mary Catherine Amerine) and seems to us a clear outlier.

‘Negotiating with the Dead’

Posted January 30, 2023

This is a guest post by Meera Nair, PhD, Copyright Specialist for the Northern Alberta Institute of Technology (NAIT), commenting on the recent extension of copyright term in Canada. It was originally published at https://fairduty.wordpress.com/2023/01/10/negotiating-with-the-dead/.

When it became evident that our copyright term was to be extended by twenty years, with no measures to mitigate the excess damage wrought by such action, Margaret Atwood’s book of this title kept returning to mind. A foray into the relationships that exist between writers and writing, a book where the word copyright did not feature among those ruminations, the title nonetheless feels apt for the days ahead.

Works of long-since-dead authors will now—in the best of situations—literally become objects of negotiation. This is purportedly to the benefit of those authors’ heirs, whereas on balance the true beneficiaries will be international publishing conglomerates and collective societies. In the worst of situations though, works will simply fade away with no surviving copy to emerge seventy years after their authors’ deaths. Those authors will be forgotten, and the public domain will remain poorer.

Atwood has been a prominent advocate for a stronger scope of protection in the name of copyright, famously remembered for her characterization of exceptions as expropriation and theft during a Standing Committee Meeting of the Department of Canadian Heritage in 1996. Two decades later, when she gave the 2016 CLC Kreisel Lecture at the University of Alberta, fair dealing was called out by name. Nonetheless, that lecture was a delight to listen to, grounded as it was on Atwood’s own experiences of being a Canadian writer.

It is her life that lies at the foundation of Negotiating, which took form through the Empson Lectures at the University of Cambridge in 2000. The combination of literature, literary criticism, book history, and history itself, written as only Margaret Atwood can, makes for compelling reading. In this book she comes perhaps closest to answering an age-old question about writing: what does it mean to write? There is no neat and tidy answer; at the very least it is blood, sweat, and tears amid negotiations between oneself, the society of the living, but also that of the dead.

To be sure, financial wherewithal is relevant to any impetus to write. Money appears approximately three times among the 74 reasons for writing taken “from the words of writers themselves (xx-xxii).” Yet, perhaps unintentionally, Atwood lays bare why copyright was not, nor ever will be, a broad determinant of success (either literary or material) for Canadian writers and publishers. From identifying the limitations of the Canadian publishing sector in the early to mid-twentieth century (to say there was disinterest in Canadian authors is putting it mildly), to stripping away the facades of originality and individuality (which underpin copyright’s structure of rights) in literary endeavor, there is much here to remind us that Canada’s phenomenal success in developing literary talent (see here and here) has occurred despite copyright, not because of it.

After borrowing the book repeatedly from the Edmonton Public Library, I had to buy it. Or rather, I had to buy it in the original form. Because what I had borrowed was a book titled On Writers and Writing, by Margaret Atwood, identified as a Canadian reprint of her earlier work, Negotiating with the Dead.

My preference was to buy Negotiating; in the peculiarities of my own mind, somehow it felt more authentic. As it turned out though, my instincts were correct. The two books are not the same. The difference lies, not in Atwood’s words, but in the representation of what copyright is. While both books specify the copyright as belonging to O.W. Toad (the name of Atwood’s enterprise), similarity ends there.

In Negotiating, published by The Press Syndicate of The University of Cambridge, readers are told: “This book is in copyright. Subject to statutory exceptions and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press (emphasis mine).”

There it is. A clear indication that statutory exceptions exist and are relevant; meaning that some reproduction might not require permission. Whereas in Writers, published by Emblem (an imprint of McClelland & Stewart, a division of Random House of Canada Limited, a Penguin Random House Company), readers are told that permission is always needed for even a particle copied:

“All rights reserved. The use of any part of this publication reproduced, transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, or stored in a retrieval system, without the prior written consent of the publisher – or, in the case of photocopying or other reprographic copying, a license from the Canadian Copyright Licensing Agency – is an infringement of the copyright law (emphasis mine).”

Despite what a publisher might prefer, Canada’s Copyright Act permits unauthorized uses of insubstantial parts of a work and unauthorized uses of substantial parts which comport with fair dealing or other exceptions. As the Supreme Court (with unanimity) stated in 2004, “the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright (para 48).” And yet, willful misinformation is standard fare among books issued in Canada.

Given the stunting of our public domain by term extension, fair dealing is even more important now as it provides some allowance of use of older, protected, material. But even a large and liberal interpretation of fair dealing, as required by our Supreme Court, is no substitute for a vibrant public domain.

With the Act expected to undergo change this year, Canada could still introduce a system of registration associated to a longer term of copyright. Owners of works which continue to be commercially successful fifty years after an author’s death, will likely choose to register and thus receive the additional twenty years of protection. Whereas works that did not have such longevity with respect to commercialization, and works that were never intended for revenue generation, would likely not be registered and thus would enter the public domain without the twenty year delay. Such a system was recommended by a former Industry Committee to uphold our obligations under CUSMA, ensure that commercial works which may benefit by a longer term are able to capture that gain, and continue to grow the public domain.

The difficulty is to convey to current Canadian lawmakers the importance of the public domain. Too often, its intangibility has meant that the public domain is perceived as being of lesser value. That an author’s work is not protected somehow deems it and the author as being unworthy. Even the way older works are spoken of, that they have “fallen into the public domain,” carries an aura of degradation familiar to the plight of “fallen women.” Whereas the public domain is precisely the opposite; it enables new works to emerge. As Jessica Litman wrote in The Public Domain (1990):

To say that every new work is in some sense based on the works that preceded it is such a truism that it has long been a cliche, invoked but not examined. … The public domain should be understood not as the realm of material undeserving of protection, but as a device that permits the rest of the system to work by leaving the raw material of authorship available for authors to use (966-968).

That this truism went unexamined and unarticulated is a testament to the difficulty of capturing the intricacy of the relationships between old works and new authors. Margaret Atwood not only undertook such an exploration but also elegantly articulated the journey that underlies every literary endeavor.

It is only fitting then that Margaret Atwood should have the last words:

… All writers must go from now to once upon a time; all must go from here to there; all must descend to where the stories are kept; all must take care not to be captured and held immobile by the past. And all must commit acts of larceny, or else of reclamation, depending how you look at it. The dead may guard the treasure, but it’s useless treasure unless it can be brought back into the land of the living and allowed to enter time once more – which means to enter the realm of audience, the realm of readers, the realm of change (p.178).

Authors Alliance Annual Report: 2022 In Review

Authors Alliance is pleased to share this year’s annual report, where you can find highlights of our work in 2022 to promote laws, policies, and practices that enable authors to reach wide audiences. In the report, you can read about how we’re helping authors meet their dissemination goals for their works, representing their interests in the courts, and otherwise working to advocate for authors who write to be read.

Click here to view the report in your browser.

Authors Alliance Signs on to Amicus Brief in Gonzalez v. Google

Posted January 20, 2023

Yesterday, Authors Alliance joined a diverse group of creators of online content on an amicus brief in Gonzalez v. Google, a case before the Supreme Court. The case is about Section 230 of the Communications Decency Act and whether it protects curated recommendations by platforms. Section 230 protects online service providers from legal liability for content generated by users, and is considered by many to be essential for a vibrant and diverse internet. By shielding platforms from liability for speech their users make on these platforms, Section 230 enables the free flow of ideas and expression online, including speech on controversial topics. This is consistent with First Amendment values and the functioning of the internet as we know it.

The case concerns ISIS recruitment videos posted on YouTube, which the petitioner alleges were recommended by the platform. Gonzalez argues that Section 230 should not shield Google from liability, and that it aided in ISIS recruitment by recommending these videos to users. Google, on the other hand, contends that Section 230 shields it from liability for recommendations made on the platform, including the recommendations at issue in the case.

Our brief makes three principal arguments. First, it argues that Congress intended Section 230 to foster a free Internet where diverse and independent expression thrives. We explain that 230 was meant to facilitate free expression online, which is precisely what it continues to do.

Second, our brief argues that platform recommendations contribute to the flourishing of free expression, creativity, and innovation online. Authors like our members are served by platform recommendations and curation: for authors whose works may not appeal to a general audience, platform recommendations enable readers interested in a particular topic or type of work to discover them. In this way, platform recommendation can serve authors’ interests in seeing their works reach broad and diverse audiences. This is particularly important for authors just starting out in their careers who have not yet found an audience, and platform recommendations can and do help these authors grow their audiences.

Finally, we argue that altering Section 230’s protections for recommendations could have dire consequences for current and future creators—including authors— and could chill the free flow of ideas online. If platforms were to be held liable for content created by users, we believe they would be inclined to take a more conservative approach, moderating content to avoid the threat of a lawsuit or other legal action. This could reasonably lead platforms to avoid hosting content on controversial topics or content by new and emerging creators whose views are unknown. An author’s ability to write freely, including on controversial topics, is essential for a vibrant democratic discourse. And if platforms were reluctant to recommend content by new creators, who may be seen as less “safe,” dominant and established creators could be entrenched, doing a disservice to less established creators. Were platforms to censor certain writings or ideas to avoid lawsuits, the internet would become less free, less vibrant, and more sanitized—doing a disservice to all of us.

Authors Alliance thanks Keker, Van Nest & Peters LLP for their invaluable support and contributions to this brief, as well as our fellow amici for sharing their stories.

Announcing the “Text and Data Mining: Demonstrating Fair Use” Project

Posted December 22, 2022

We’re very pleased to announce a new project for 2023, “Text and Data Mining: Demonstrating Fair Use,” which is generously supported by the Mellon Foundation. The project will focus on lowering and overcoming legal barriers for researchers who seek to exercise their fair use rights, specifically within the context of text data mining (“TDM”) research under current regulatory exemptions.

Fair use is one of the primary legal doctrines that allow researchers to copy, transform, and analyze modern creative works—almost all of which are protected by copyright—for research, educational, and scholarly purposes. Unfortunately, in practice, not everyone is able to use this powerful right. Researchers today face the challenge that fair use is often overridden by a complex web of copyright-adjacent laws. One major culprit is Section 1201 of the Digital Millennium Copyright Act (“DMCA”), which imposes significant liability for users of copyrighted works who circumvent technical protection measures (e.g., content scramble for DVDs), unless those users comply with a series of specific exemptions to Section 1201. These exemptions are lengthy and complex, as is the process to petition for their adoption or renewal, which recurs every three years.

Text data mining is a prime example of work that demonstrates the power of fair use, as it allows researchers to discover and share new insights about how modern language and culture reflect on important issues ranging from our understanding of science to how we think about gender, race, and national identity. Authors Alliance has worked extensively on supporting TDM work in the past, including by successfully petitioning the Copyright Office for a DMCA exemption to allow researchers to break digital locks on films and literary works distributed electronically for TDM research purposes, and this project builds on those previous efforts.

The Text Data Mining: Demonstrating Fair Use project has two goals in 2023:

1) To help a broader and more diverse group of researchers understand their fair use rights and their rights under the existing TDM exemption through one-on-one consultations, creating educational materials, and hosting workshops and other trainings; and

2) To collect and document examples of how researchers are using the current TDM exemption, with the aim of illustrating how the TDM exemption can be applied and highlighting its limitations so that policymakers can improve it in the future.

We’ll be working closely with TDM researchers across the United States, as well organizations such as the Association for Computers and the Humanities, and will be actively exploring opportunities to work with others. If you have an interest in this project, we would love to hear from you!

About The Andrew W. Mellon Foundation

The Andrew W. Mellon Foundation is the nation’s largest supporter of the arts and humanities. Since 1969, the Foundation has been guided by its core belief that the humanities and arts are essential to human understanding. The Foundation believes that the arts and humanities are where we express our complex humanity, and that everyone deserves the beauty, transcendence, and freedom that can be found there. Through our grants, we seek to build just communities enriched by meaning and empowered by critical thinking, where ideas and imagination can thrive. Learn more at mellon.org.

Please Support Authors Alliance This Holiday Season!

Posted December 6, 2022

Dear Members and Allies,

Since 2014, you have helped Authors Alliance fulfill our mission to advance the interests of authors who want to make the world a fairer and more just place, to spark new conversations, and to be read by wide audiences. But our continued existence is not guaranteed, and we need your help to continue to advocate for authors who write to be read. Each year, we launch a year-end fundraising campaign and this year, we need your support more than ever.

In 2022, we continued to speak out in favor of laws and policies that empower authors to reach wide audiences, with a new focus on and expansion of our advocacy work. We submitted amicus briefs in five separate federal lawsuits (our most ambitious amicus docket yet!), defending authors’ ability to exercise their fair use rights at home and abroad, create transformative derivative works, reach readers via controlled digital lending by libraries, and more. We helped authors speak out against publishers whose actions weren’t aligned with their interests, magnifying author voices in the face of a sudden loss of access to their works. We also continued to partner with allied organizations to urge Congress to reject maximalist copyright policies, weighed in on several Copyright Office rulemakings, and much more.

We’re proud of our many accomplishments in 2022, and cannot wait for you to see what we have in store for 2023. You can expect a brand new guide to legal issues related to writing about real people, a wealth of advocacy work related to strengthening authors’ ability to engage in text data mining, and more amicus briefs to represent your interests in the courts.

Please consider making a tax-deductible donation today to help us carry on our work in 2023. Every contribution enables us to do our part to help you keep writing to be read!

Please support Authors Alliance today!

Book Talk: Data Cartels

Posted November 11, 2022

We’re excited to invite you to join us for another book talk, co-sponsored with Internet Archive, with author Sarah Lamdan about her book Data Cartels.

Join SPARC’s Heather Joseph for a chat with author Sarah Lamdan about the companies that control & monopolize our information.

Book Talk: Data Cartels with Sarah Lamdan & Heather Joseph
Co-sponsored by Internet Archive & Authors Alliance
Wednesday, November 30 @ 10am PT / 1pm ET
Register now for the virtual discussion.
Purchase Data Cartels from The Booksmith

In our digital world, data is power. Information hoarding businesses reign supreme, using intimidation, aggression, and force to maintain influence and control. Sarah Lamdan brings us into the unregulated underworld of these “data cartels”, demonstrating how the entities mining, commodifying, and selling our data and informational resources perpetuate social inequalities and threaten the democratic sharing of knowledge.

Sarah Lamdan is Professor of Law at the City University of New York School of Law. She also serves as a Senior Fellow for the Scholarly Publishing and Academic Resources Coalition, a Fellow at NYU School of Law’s Engelberg Center on Innovation Law and Policy.

Heather Joseph is a longtime advocate and strategist in the movement for open access to knowledge. She is the Executive Director of SPARC, an international alliance of libraries committed to creating a more open and equitable ecosystem for research and education. She leads SPARCs policy efforts, which have produced national laws and executive actions supporting the free and open sharing of research articles, data and textbooks, and has worked on international efforts to promote open access with organizations including the United Nations,, The World Bank, UNESCO, and the World Health Organization.

Book Talk: Data Cartels with Sarah Lamdan & Heather Joseph
Co-sponsored by Internet Archive & Authors Alliance
Wednesday, November 30 @ 10am PT / 1pm ET
Register now for the virtual discussion.

Github Copilot Class Action Lawsuit (and why authors and researchers should pay attention)

Posted November 4, 2022

Yesterday there was a pretty interesting class action lawsuit filed against Github and Microsoft. The suit is about Github’s Copilot service, which it advertises as “Your AI pair programmer.” As described by Github, Copilot is “trained on billions of lines of code” and “turns natural language prompts into coding suggestions across dozens of languages.” The suit focuses on Github’s reuse of code deposited with it by programers, mostly under open source licenses, which Github has used to train the Copilot AI. Those licenses generally allow reuse but commonly come with strings attached–such as requiring attribution and relicensing the new work under the same or similar terms. The class action asserts, among other things, that Github hasn’t followed those terms because it hasn’t attributed the source adequately and has removed copyright-relevant information.

Sounds interesting, but you might be wondering why we care about this lawsuit. For a few reasons: one, it raises some important questions about the extent to which researchers can use AI to train and produce outputs based on datasets of copyrighted materials, even materials thought generally “safe” because they’re available under open licenses. As the suit highlights, materials that are openly licensed aren’t without any restrictions (most include attribution requirements), but when those materials are aggregated and used to craft new outputs, it can be seriously complicated to find the right way to attribute all the underlying creators. If this suit raises the barrier to using such materials, it could pose real problems for many existing research projects. It could also result in further narrowing of what datasets are likely to be used by AI researchers– resulting an even smaller group of materials that include what law professor Amanda Levendowski refers to as “biased, low-friction data” (BLFD), which can lead to some pretty bad and biased results. How and when open license attribution requirements apply is important for anyone doing research with such materials in aggregate.

Second, the suit at least indirectly implicates some of the same legal principles that authors working on text-data mining projects rely on. We’ve argued (successfully, before the U.S. Copyright Office) that such uses are generally not infringing–-particularly for research and educational purposes-–because fair use allows for it. Several others, such as Professors Michael Carroll and Matthew Sag, have made similar arguments. Of course, Github Copilot has some meaningful differences from text-data mining for academic research; e.g., it is producing textual outputs based on the underlying code for a commercial application. But the fair use issue in this case could have a direct impact on other applications.

Interestingly, the Github Copilot suit doesn’t actually allege copyright infringement, which is how fair use would most naturally be raised as a defense. Instead, the plaintiffs, as class representatives, make two claims that could implicate a fair use defense: 1) a contractual claim Github has violated the open source license covering the underlying code, which generally require attribution among other things; 2) a claim Github has violated Section 1202 of the Digital Millennium Copyright Act by removing copyright management information (“CMI”) (e.g., copyright notice, titles of the underlying works).

The complaint attempts to avoid fair use issue, asserting that ”the Fair Use affirmative defense is only applicable to Section 501 copyright infringement. It is not a defense to violations of the DMCA, Breach of Contract, nor any other claim alleged herein.” The plaintiffs may well be trying to follow the playbook of another recent open source licensing case, Software Freedom Conservancy v. Vizio, which successfully convinced a federal court that its breach of contract claims, based on an alleged breach of the the GPLv2 license, should be considered separate and apart from a copyright fair use defense.

This suit is a little different though. For one, at least five of the eleven licenses at issue explicitly recognize the applicability of fair use; for example, the GNU General Public License version 3 provides that “This License acknowledges your rights of fair use or other equivalent, as provided by copyright law.” It would seem more of a challenge to convince a court that a fair use defense doesn’t matter when almost half of the licenses explicitly say it does. Likewise, while the text of Section 1202 doesn’t explicitly allow for a fair use defense, its restrictions are only applicable to the removal of CMI when it is done “without the authority of the copyright owner or the law.” The plaintiffs claim that fair use isn’t a defense to allegations of a Section 1202 violation, but thats far from clear, and it may be that removal of information pursuant to a valid fair use claim should qualify as removal with the “authority . . . of the law.”

The lawsuit is a class action, so it faces some special hurdles that a typical suit would not. For example, the plaintiffs must demonstrate that they can adequately represent the interests of the class, which it has defined as:

All persons or entities domiciled in the United States that, (1) owned an interest in at least one US copyright in any work; (2) offered that work under one of GitHub’s Suggested Licenses; and (3) stored Licensed Materials in any public GitHub repositories at any time between January 1, 2015 and the present (the “Class Period”).

That could pose a challenge given that it seems likely that at least a portion–if not a sizable portion–of those who contributed code to Github under those open licenses may be more sympathetic to Github’s reuse than the claims of the plaintiffs. In Authors Guild v. Google, another class action suit involving mass copying to facilitate computer-aided search and outputs like snippet view in Google Books, similar intra-class conflicts posed a challenge to class certification (including objections we raised on behalf of academic authors). The Github Copilot suit also includes a number of other claims that mean it could be resolved without addressing the copyright and licensing issues noted above. For now, we’ll monitor the case and update you on outcomes relevant to authors.

Community Call : Writing About Real People Legal Guide

Writing about real people can raise a number of complicated legal issues for authors. Legal issues such as defamation and rights of publicity have a number of fact-specific rules, exceptions, and exceptions to exceptions that can be difficult to navigate without help. We’ve found that these issues can be an obstacle to creation for all types of authors, from bloggers to narrative nonfiction authors to historians, cultural anthropologists, and other scholarly authors.

As part of our highly used series of guides on legal issues for authors, Authors Alliance has set out to create a guide to writing about real people for nonfiction authors. We’ve got a good start and edited draft already, but would like your input as we refine the guide – what should we be highlighting? What’s trickiest, most salient, and for which types of nonfiction authors?

We invite Authors Alliance members, A2P2 partners, and others who are interested to join us for a community call on Monday, November 14, 2022, from 1-2pm Eastern/10-11am Pacific. The meeting will be held on Zoom, and you can register here.

We plan to share our plans for the guide, including scope and coverage, ideas for additional content (e.g., teaching resources), and publication plans. We’d like to hear from you:

What important issues have we not included in our plans for the guide that we should?
Which issues in the guide seem most salient or important for nonfiction authors?
What helpful examples do you have that we might include to help authors?
How can we format, structure, and disseminate the guide best to support authors who need this information?

Authors speak out: an update on the Wiley ebook situation

Last week we wrote about publisher John Wiley & Sons abruptly removing some 1,300 ebooks from library collections, and then (in the face of significant public outcry from librarians, authors, and instructors) temporarily restoring access for the academic year.

Authors Alliance has heard from a number of authors expressing their strong disapproval of Wiley’s actions. To help them express their concerns, we co-wrote a letter with #ebookSOS that authors of the Wiley books can sign on to, calling on Wiley to change their practices. The text of the letter can be read here. We’re still working on reaching out to all of the individual authors of these books (if you are inclined to help find contact info, you can contribute it here), but already we’re hearing back from authors with comments of their own. For example, authors wrote us to express their frustration over lack of respect for their interests in seeing their books put into the hands of readers:

“I find the removal of eBooks arbitrary and infringing on the rights of the authors and the prospective readers/users of these book.”

“I strongly agree with your approach concerning the e-books. Wiley is evidently the only beneficiary of this system, which works against the authors and readers.”

“I would like my book to be available to as many students as possible.”

Unsurprisingly, the question of royalties paid out to the authors of top-selling titles is a frequent topic of discontent, highlighting the mismatch between the high prices that Wiley charges for access and the funds that actually make their way to authors. For example, authors wrote us to say:

“Recently I wrote Wiley if I can get a yearly list of royalty payments corresponding to hard cover, e-book and, if appropriate, solution manual. Because for a book in the forefront of the technology, I received only $8 as the last royalty payment. The result was no answer. All these make me question if they calculate the royalty payments honestly. I was not intending to get rich when I decided to write this book, but the return of time and effort I put for writing such a book is not fair. I wonder whether the return for Wiley is also that low.”

“Wiley created a lot of problems in royalty payments. I had to write a letter of complaint to the CEO of Wiley in order to get my first royalty payment after approximately three years after the publication of the book. The payment department was uncooperative.”

As we note above, in response to mounting pressure, Wiley did recently announced it will reinstate the withdrawn books, but only until June 2023. After hearing from the authors we’ve reached out to, Authors Alliance and #ebookSOS agree that the problem is in no way solved and are continuing their efforts to raise awareness with authors.

For more information please contact us at ebooksoscampaign@gmail.com or at info@authorsalliance.org.

Note: this initiative is part of a wider joint project, to educate and empower authors, who rarely know how their work is managed post-publication, to hold publishers to account. If you want to help on this project please get in touch.