Category Archives: Blog

Georgia v. Public.Resource.Org: Copyright Case Before the Supreme Court

Posted December 2, 2019

photo of the Supreme Court building — photo by MarkThomas | Pixabay

The following post by Authors Alliance Copyright Research Assistant Nicolas Charest provides an overview of Georgia v. Public.Resource.Org Inc. Today, the Supreme Court of the United States will hear oral arguments in this case, which examines whether the “government edicts” doctrine extends to the Official Code of Georgia Annotated, rendering it uncopyrightable.

Background

The Code Revision Commission (the “Commission”), an arm of the State of Georgia’s General Assembly, is mandated to ensure publication of the statutes adopted by the General Assembly. It does so by contracting with the LexisNexis Group (“Lexis”) to maintain, publish, and distribute the Official Code of Georgia Annotated (“OCGA”), an annotated compilation of Georgia’s statutes. Following guidelines provided by the Commission, Lexis prepares and sells OCGA, which includes the statutory text of Georgia’s laws and annotations (such as summaries of judicial decisions interpreting or applying particular statutes). Lexis also makes unannotated versions of the statutes available online.

Public.Resource.Org (“PRO”) is a non-profit organization that promotes access to government records and primary legal materials. PRO makes government documents available online, including the official codes and other rules, regulations, and standards legally adopted by federal, state, and local authorities, giving the public free access to these documents. PRO purchased printed copies of the OCGA, digitized its content, and posted copies online through its own website.

Georgia filed suit against PRO claiming copyright infringement. Before the lower courts, PRO invoked the judicially-created “government edicts” doctrine. As a matter of public policy, courts have held that government edicts having the force of law, such as statutes and judicial decisions, are not eligible for copyright protection. While the court of first instance agreed with the State of Georgia and the OCGA was found to be copyrightable, on appeal the Eleventh Circuit held that under the government edicts doctrine, OCGA is not copyrightable and rejected Georgia’s infringement claim against PRO. Now, the issue before the Supreme Court is whether Georgia can claim copyrights over the OCGA annotations or if it is prevented from doing so because the annotations are an edict of government.

Position of the Parties

The State of Georgia and the Georgia Code Revision Commission submit that the annotations are not excluded from copyright protection; the annotations lack the force of law and therefore do not trigger the government edicts doctrine. Georgia also argues that the annotations are “derivative works” from the statutes and though published alongside materials in the public domain, they nonetheless are produced by a private entity. Finally, Georgia states that copyright in the annotations is the underlying incentive for its partnership with Lexis and, absent copyright protection for OCGA, Lexis would lose incentive to produce the annotations unless Georgia used taxpayer funds to directly pay for the services.

Public.Resource.Org argues that, in addition to texts with binding legal effect, any works that represent an “authentic” exercise of state legal authority, including legal works adopted or published under the authority of the state, are uncopyrightable edicts of government and therefore cannot be copyrighted. They posit that as long as the documents embody the authority of the state, such works would not be subject to copyright, even if they do not have legal force. PRO concludes that since the OCGA is an official legal document that holds itself out as “published under the authority of the State,” it is therefore a government edict that is ineligible for copyright protection.

Next Steps

Audio of the oral arguments in Georgia v. Public.Resource.Org should be available on the website of the Supreme Court on Friday. We encourage members of Authors Alliance to contact us at info@authorsalliance.org to share your views on the implications and outcome of this case. We will provide an update once the Court issues its decision in this case.

New Resource on Law and Literacy in Non-Consumptive Text Mining

Posted November 19, 2019

Photograph of laptop computer — Photo by Andras Vas on Unsplash

Scholars are increasingly using text data mining to uncover previously unknown patterns, trends, or relationships from a collection of textual documents. In doing so, many of these researchers may be accessing, building, working with, and sharing materials without understanding the legal implications of their actions. In their newly released chapter, Law and Literacy in Non-Consumptive Text Mining: Guiding Researchers Through the Landscape of Computational Text Analysis (in Copyright Conversations: Rights Literacy in a Digital World), Rachael G. Samberg and Cody Hennesy analyze the legal issues that can arise when researchers are engaged in text data mining and provide guidance on how to approach these issues.

As Samberg and Hennesy write, “currently, many [ ] researchers programmatically access and download copyright-protected works—even when it potentially violates copyright, licenses, privacy, or computer fraud law—because it is technically feasible. Few of these researchers are malicious in intent; rather, they may lack the necessary training or support to safely navigate the obscure regulatory environment of the field.”

Samberg and Hennesy’s survey of copyright and other legal issues affecting text data mining addresses:

Copyright and Fair Use: Samberg and Hennesy review several cases where courts have considered the intersection of full text searching a corpus and fair use and found non-consumptive text mining to be fair. They caution that researchers should understand that while it may be fair use in some cases to create and utilize a database for text data mining, further publishing that database may exceed the bounds of fair use.
Contract Law: Samberg and Hennesy discuss how contract law may define how researchers can access materials and what use they can make of them, and may even supplant fair use rights. They review the effect of database license agreements, website terms of service, and agreements with archives and special collections on text data mining.
Ethics: Samberg and Hennesy consider the best practices in responding to requests from web hosts relating to scraping content from the site.

Samberg and Hennesy use this framework to define literacies for researchers based on three stages of outreach and education further articulated in the chapter: use of precompiled corpora, corpus creation, and corpus publishing. The authors conclude that the key literacy is for researchers “to understand the need for a workflow [ ] and to explore a tailored approach in consultation with their librarians.”

This chapter is a valuable contribution towards helping scholars using text data mining to acquire the skills they need to understand and approach the legal implications of their work. Law and Literacy in Non-Consumptive Text Mining: Guiding Researchers Through the Landscape of Computational Text Analysis is available to read in full under a CC-BY license.

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Thanks to a grant from the National Endowment for the Humanities (NEH), Rachael Samberg will lead a national team to help humanities researchers and staff navigate complex legal questions in cutting-edge digital research. The institute, Building Legal Literacies in Text Data Mining, will teach humanities researchers, librarians, and research staff how to confidently navigate the major legal issues that arise in text data mining research. Authors Alliance Executive Director Brianna Schofield will take part in the institute in her capacity as a copyright expert. A call for participants is currently open; applications are due December 20, 2019.

Authors Alliance is Hiring a Staff Attorney

Posted November 13, 2019

Do you want to help authors understand and enjoy their rights and promote policies that make knowledge and culture available and discoverable? Are you a passionate advocate for the positive role that authors can play in advancing access to knowledge and culture? Come join our team as our first staff attorney!

Learn more about the position and how to apply on our jobs page. Applications will be considered on a rolling basis beginning February 3, 2020.

Rights Reversion: Opening Classic Works to New Global Audiences

Posted November 12, 2019

We are grateful to Anita Walz, Assistant Director of Open Education and Scholarly Communication Librarian at Virginia Tech, for sharing the following rights reversion and open access success story. Anita worked with the authors of an out-of-print textbook to make a digitized version available online under a Creative Commons license for a new generation of students—not only at Virginia Tech but around the world. This guest post is published under a CC BY-NC-4.0 license.

“I want to assign this book as required reading for my graduate class. However, there are 125 students and I can’t find enough copies for students to access, borrow, or purchase. You’re a librarian. Can you help?” Librarians often field such inquiries. Depending on the situation, such inquiries may lead to nuances of copyright, ebook acquisition, a search for substitute titles, assertion of fair use and exploration of more ideal scenarios: open access works and open educational resources. Sometimes such inquiries lead us outside of libraries to fact-find with authors and publishers on behalf of library users. The example of Veterinary Epidemiology: Principles and Methods is one such case.

In 2015 and 2016 I worked on my first rights reversion digitization project, inspired in part by the Authors Alliance’s publication Understanding Rights Reversion: When, Why & How to Regain Copyright and Make Your Book More Available. Of course, I didn’t know that it was a rights reversion scenario when I first started. A new faculty member had approached me with a copyright quandary: She wanted to use an out-of-print seminal work from 1987 for her class of 125 students. The six copies owned by the library and the several used copies available for sale would not be nearly enough. A thorough check indicated that a digital version was not available for purchase. We also explored working with the Copyright Clearance Center, but the cost was exorbitant. Wanting to honor the professor’s selection of this particular text, my colleagues and I aided her in conducting an informed fair-use analysis and the library displayed selected chapters one-chapter-at-a-time via the library’s secure eReserve system. With the book obviously out of print, and wondering who owned the rights, I contacted the book’s authors in September 2015.

Dr. Seuss, Picasso, and Grease: Fair Use in the Courts

Posted November 5, 2019

As a follow up to our recent coverage of the fair use issues in the Chronicle Books v. Audible Inc. case, Authors Alliance Copyright Research Assistant Nicolas Charest provides an update on three current cases involving the doctrine of fair use. Click on each case name below to learn more.

Dr. Seuss Enterprises v. ComicMix LLC.

Oh, the Places You’ll Boldly Go! (“Boldly”) is a book that combines the use of imagery, characters, and other visual elements from the Star Trek franchise and the works of Dr. Seuss (most notably Oh, the Places You’ll Go!). In 2016, Dr. Seuss Enterprises sued the creators of Boldly, alleging that the work infringes on Dr. Seuss’ works. (The plaintiffs also brought trademark and unfair competition claims, which are not reviewed in this post.) As for the copyright claim, the defendants argued that the use was permitted under the fair use doctrine.

Dr. Seuss’s *Oh, the Places You’ll Go!* (left) and ComicMix’s *Oh, the Places You’ll Boldly Go!* (right)

In March 2019, the district court held that the use of elements of Seuss’s work in Boldly is a fair use. Under the first fair use factor (the purpose and character of the use), the court found that although defendants borrowed from Dr. Seuss’ work, these elements were always adapted and the work is highly transformative, thus favoring fair use. Because Dr. Seuss’ work is highly creative, the court found that the second factor (the nature of the work), slightly favored the plaintiffs. Under the third factor (the amount and substantiality of the portion taken), the court found that because the elements are similar, but not replicated, the third factor does not weigh against the defendants. The court explained that while some shapes were borrowed, they were adapted to the Star Trek universe; for example, the narrator is transformed into Captain Kirk and instead of a Seussian landscape, the cover image is set in space. Under the fourth factor (the effect of the use on the market), the court found that the plaintiff failed to introduce evidence demonstrating that Boldly will substantially harm the market for Oh, the Places You’ll Go!, concluding that the fourth factor therefore favors neither party. Balancing all factors together, the court concluded that Boldly is a fair use of Dr. Seuss’ literary universe.

Dr. Seuss Enterprises appealed the decision, and the case is now before the US Court of Appeals for the Ninth Circuit. In its opening brief filed in August, Dr. Seuss Enterprises argues that the four factors do not lead to a finding of fair use. They argue that Boldly is not transformative since it does not parody, comment, criticize or comment on Oh, the Places You’ll Go!. They argue that the defendants “merely aped the purpose of Go!: entertaining the readers (mostly graduates starting out in the world) with an uplifting story.” They further highlight that Dr. Seuss’ works are substantially borrowed because elements central to the Seussian universes are taken, and that merely putting Star-Trek elements in what is otherwise a Seuss world does not result in any transformation. Finally, Dr. Seuss Enterprises argues that Boldly is likely to harm the market for authorized mash-ups.

Recently, the defendants filed a reply brief maintaining that Boldly makes fair use of Dr. Seuss’ books. We will follow developments in the Ninth Circuit.

De Fontbrune v. Wofsy

In the late 1990s, Alan Wofsy, a San Francisco-based art gallery and art book publisher, published and distributed in France The Picasso Project, a catalogue containing reproduction of photographs of Pablo Picasso’s works. These photographs were taken from another catalogue initially published by Christian Zervos (the Zervos Catalogue). Yves Sicre De Frontbrune then acquired the rights into the Zervos Catalogue, and later filed a copyright infringement claim against Wofsy on the basis that The Picasso Project infringed on the copyrights over the photographs. In 2001, a judgment of copyright infringement was obtained in France against Wofsy which also ordered an “astreinte” that required the defendant to pay €10,000 for each future act of copyright infringement in the works. In 2011, copies of The Picasso Project were again found in France and De Fontbrune sought enforcement of the astreinte and consequently a French court awarded €2 million to De Fontbrune in 2012.

Recognition of the 2012 judgment in California was then sought to enforce the award of money. As part of its analysis to determine whether a foreign judgment can validly be recognized and enforced in the United States, a court must determine whether the judgment is repugnant to the public policy of the forum state or the United States. Wofsy argued that, based on the same facts in the United States, the use of the copyrighted photographs was protected by US fair use and there would be therefore no finding of copyright infringement, which would mean that the astreinte judgment issued by the French court was “repugnant” to US public policy.

The California district court analyzed the four fair use factors to assess whether a conduct constitutes fair use. The Court decided that the first (purpose and character of the use) and fourth (the effect of the use on the potential market) factors weighed strongly in favor of fair use. The Picasso Project is a reference work intended for libraries, academic institutions, art collectors, and auction houses, which demonstrates that it has an educational purpose, despite the concurrent commercial nature of the work. The Court also found that The Picasso Project and the Zervos Catalogue were destined to disparate markets and were offered at wildly different price points, Zervos being sold as high as $100,000 at auction while The Picasso Project’s volume can be purchased at $150 a piece or as a set ranging from $2,780 to $3,780. It appeared unlikely to the Court that one would ever compete against the other. The court found the second factor (the nature of the copyrighted work), to slightly disfavor fair use, because while the photographs are creative works, the goal was to faithfully reproduce Picasso’s work, not to showcase the original artistic expression of the photographer. Finally, the court found that the third factor (the amount and substantiality of the portion taken), weighs in favor of fair use because Wofsy copied less than ten percent of The Zervos Catalogue’s photographs. The court ultimately concluded that it would not recognize the 2012 judgment because The Picasso Project’s use of copyrighted photographs qualifies as fair use.

On September 12^th 2019, the district court granted summary judgment in favour of Wofsy on the basis of the fair use doctrine, and partly in favour of the representatives of De Fontbrune on other procedural grounds. Both parties have appealed.

Sketchworks Industrial Strength Comedy, Inc. v. Jacobs

Sketchworks, an Atlanta-based sketch comedy company, wrote and produced a play titled Vape: The Musical. Vape follows the narrative arc of the hit musical Grease, but brings the cast of characters into the modern day by integrating elements such as online dating, millennial slang, and vaping. A link to the full performance can be found here.

Sketchworks performed Vape in Atlanta in 2018 with enough success to warrant a production of the play in New York, which was scheduled to open in August 2019. Prior to the show’s opening, Sketchworks received a cease-and-desist letter from the copyright holders in Grease, claiming that Vape infringes on Grease and demanding that the production immediately be stopped. Shortly after, the New York theatre cancelled the performances. On August 9^th 2019, Sketchworks filed a motion for a declaratory judgment, asking a district court in New York to find that to the extent that Vape uses copyrightable elements from the play Grease, it is fair use under the exception of parody in copyright law.

Sketchworks argues that Vape is a deliberate parody of Grease that is intended to criticize its misogynistic and sexist elements, which the creators argue have not aged well. At the same time, the play is set in modern times and attempts to show that the struggles of contemporary teenagers are similar to what their Grease-counterparts experienced in their time. As stated in the complaint, “Vape not only comments on the controversial themes in Grease, it also explores whether modern society has progressed at all by pointing to current systemic issues that still exist based on the misogyny of the era in which Grease was written and is set.” Sketchworks concludes that any elements that may be copyrightable are used in a sufficiently transformative manner and are used for parody purposes which justify a finding of fair use on its play’s use, if any, of copyrightable elements borrowed from Grease.

The response to the complaint is due November 8.

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To learn more about fair use, we recommend taking a look at our Fair Use FAQs. Nonfiction authors can explore Authors Alliance’s Fair Use for Nonfiction Authors, a guide that helps nonfiction authors make confident fair use decisions when incorporating source materials into their writings. Other communities of creators can learn how their communities apply fair use in situations typical to their given community through best practices documents developed by those communities.

Authors Alliance Supports Limitations and Exceptions and Rights Reversion at SCCR/39

Posted October 29, 2019

Last week, Authors Alliance participated in the thirty-ninth session of the World Intellectual Property (WIPO) Standing Committee on Copyright and Related Rights (SCCR/39) in Geneva. Among other topics, the Committee addressed copyright limitations and exceptions for libraries and archives and for educational and research institutions. Authors Alliance presented a statement to the Committee on how limitations and exceptions can benefit authors.

Authors Alliance was pleased to partner with Rebecca Giblin of the Author’s Interest Project to host a side panel at the SCCR/39, “Supporting Authors in a Digital Age.”

Giblin shared preliminary results from a study of more than 50 years of publishing contracts from the archive of the Australian Society of Authors. The research revealed that publication contracts are often insufficient to protect authors’ interests. For example, 14% of the contracts examined by Giblin and her colleague Joshua Yuvaraj did not include out-of-print rights, and only 6% of contracts used objective criteria (such as sales or revenue numbers) to define out-of-print status.

Giblin described how reversion rights give authors fresh opportunities to financially benefit from their works, open up new investment opportunities for publishers, and promote ongoing availability to the public. Giblin explained that their research suggests that there is a need to investigate minimum reversion rights addressing books that have reached the end of their commercial life, uses that are not being exploited, situations where publishers go into liquidation, and term limits akin to US termination of transfer laws.

Brianna Schofield discussed how reverting rights can help authors to reach more readers, continue to contribute to scholarly and cultural discourse, and ensure that their works’ continuing impact and relevance are not limited by their commercial lives. She shared examples of authors who have regained rights and subsequently released their books on open terms, self-published their works, and placed their books with a new publisher. Schofield explained that, because of the tremendous benefits of reversion for authors and the public, Authors Alliance supports statutory termination rights for authors, as well as strengthening provisions governing reversion rights in publication contracts.

Q&A With Barbara Kline-Pope on Open Access Publishing Initiatives at Johns Hopkins University Press

Posted October 23, 2019

Open Access Week 2019 takes place from October 21-27. To mark the occasion, we’re featuring a series of Open Access Success Stories that shine the spotlight on noteworthy OA books, authors, and publishing models. In today’s post, Barbara Kline-Pope, Director of the Johns Hopkins University Press, provides updates about the Press’ open publishing initiatives for scholarly books.

Authors Alliance: We were interested to hear about the new HOP 100 and Encore Editions projects that JHU Press is working on with Project MUSE. Can you tell us more about these two projects?

Barbara Kline-Pope: HOP stands for Hopkins Open Publishing and is the overarching name for all of our open book projects. The HOP 100 represents a low-risk experiment to determine the effect on audience engagement and on sales when opening up books published by Johns Hopkins University Press on MUSE Open. We chose 100 books from our list that were near the end of their sales lives, having sold 10 or fewer copies a year for the past couple of years.

What happened when we opened up those books? Let’s first explore engagement. Of the 100 titles, 54 lived on Project MUSE as gated books prior to being opened. They were available to read for people whose libraries had purchased them either individually or in a collection. Once opened and available on MUSE Open, these books experienced an average of three times more engagement per month as compared with the time period in which they were gated on Project MUSE.

Q&A with Calvin Warren: Open Access and Democratizing the Accessibility of Knowledge

Posted October 21, 2019

Calvin L. Warren (*used with permission*)

Open Access Week 2019 takes place from October 21-27. To mark the occasion, we’re featuring a series of Open Access Success Stories that shine the spotlight on noteworthy OA books, authors, and publishing models. Today’s post features Calvin L. Warren, Assistant Professor in the Department of Women’s Gender, and Sexuality Studies at Emory University. His book Ontological Terror: Blackness, Nihilism, and Emancipation (Duke University Press, 2018) examines how all humanism is based on investing blackness with nonbeing—a logic which reproduces antiblack violence and precludes any realization of equality, justice, and recognition for blacks. Ontological Terror is available under a CC BY-NC-ND license, supported by Emory University as part of the TOME initiative. We recently sat down with Professor Warren to discuss his decision to make Ontological Terror openly available.

Authors Alliance: Given that many (if not most) humanities monographs are still published via traditional channels, why did you choose open access publishing for Ontological Terror?

Calvin Warren: Unfortunately, academic knowledge is becoming increasingly inaccessible, and this “epistemological exclusivity” is resulting in disturbing patterns of asymmetry. Journals require membership to read current scholarship, and this financial barrier prevents students and scholars from resource poor institutions from acquiring information. The cost of academic books is equally exorbitant, reinforcing the dynamic that knowledge acquisition requires money. I’ve grown uncomfortable with this dynamic and had been searching for a mechanism to make my work more accessible to high school students, lay readers, community colleges, and institutions with limited resources. Open access provided such a mechanism and addressed the inequity of knowledge acquisition. Accessing my book for free has increased my readership and made it possible for black nihilism, as an idea, to expand its horizon.

AuAll: Did the subject matter of your research and/or your audience influence your decision to publish openly? If so, how?

CW: I’ve developed a philosophical perspective “black nihilism” that presents contemporary problems of black existence, anti black violence, and black suffering as deep philosophical issues. Because my work is in constant dialogue with the unceasing, ubiquitous, and regenerating problem of anti blackness, I wanted my work to reach as many people as possible—especially young people who live under the press of anti black terror. My subject matter required a platform widely accessible because people within and outside the academy were searching for answers to difficult questions.

AuAll: Before this book project, what was your impression of open access publishing?

CW: Open access was unfamiliar to me when I began my academic career, and I wish I’d known about it in graduate school. I do hope the [TOME] program recruits early career scholars, who are often producing the most provocative and groundbreaking work. I’m very grateful that Emory University invested time and resources for me to publish with open access.

AuAll: What results have you seen from publishing your book openly?

CW: Open access has widened my readership, exposing my work to artists, scientists, ministers, politicians, people I hadn’t expected to read my work. When access is open, more democratic, ideas can travel without restriction. And this has been my experience.

AuAll: What advice do you have for scholarly authors who want to make their ideas widely available?

CW: My advice to any authors with important ideas, especially those that speak to contemporary concerns, is to consider open access. Make an appointment with open access staff and discuss the possibility of this platform. It will create unexpected opportunities. Also, publishers often consider the open access funds “book sales” so it reduces some pressure from young scholars who need book sales for career stability. In short, open access is a gift to the academy and will lead the way in democratizing knowledge accessibility.

Audible Captions: The Case For and Against Fair Use

Posted October 15, 2019

The following post by Authors Alliance Copyright Research Assistant Nicolas Charest provides an update on recent developments in the Chronicle Books v. Audible case, currently in the Southern District of New York. We encourage members of Authors Alliance to contact us at info@authorsalliance.org to share your views on the proposed Audible Captions feature.

Update (Jan. 2020): After the publication of this post, the parties announced that they have settled the dispute.

Earlier this summer, Audible announced plans to enable machine-generated text captions to scroll across screens as audiobooks are played, a development that prompted a group of seven publishers—including HarperCollins, Penguin Random House, Hachette Book Group, Simon & Schuster, and Macmillan—to initiate a lawsuit against Audible. As our previous discussion of the litigation explained, the publishers maintain that the Captions feature would infringe their copyrights because it creates unauthorized derivative works and reproduces, distributes, and publicly displays unauthorized copies of the books.

Preview of the proposed Audible captioning function

In its recent filing, Audible argues that the publisher’s case should be dismissed because the licenses granted to Audible bar such a claim, and that in any event, the Captions technology is a fair use of the copyrighted works. This post focuses on the fair use arguments; a detailed account of the license issue can be found here (and in the related court filing, here).

A refresher on fair use may be useful to readers: Fair use is a limitation on U.S. copyright law which allows authors to use portions of a copyrighted work without permission or payment, so long as that use is “fair.” Courts consider at least four factors when determining whether a use is fair: 1) the purpose and character of the challenged use (often asking if the use is “transformative”), 2) the nature of the copyrighted work, 3) the amount and substantiality of the copyrighted work used, and 4) the effect on the potential market for the copyrighted work. These four factors do not work in isolation and must be carefully weighed together to determine if a use is fair.

Audible’s Fair Use Argument

Audible argues that Captions is a quintessential fair use. Audible argues that under the first fair use factor, Captions is unequivocally “transformative” and is a “utility-expanding” use of the licensed audiobooks: After paying for the right to experience the audiobook, listeners can use Captions to verify and focus on what they are hearing and to access external resources such as dictionaries or translations. Instead of allowing a user to read a book in any meaningful sense, Audible maintains that the purpose of Captions is to improve a listener’s ability to understand the work she has purchased.

Under the third fair use factor, Audible argues that the amount of the copyrighted work used to generate Captions is reasonable in relation to the purpose of the copying. Under the fourth factor, Audible argues that the Captions feature is unlikely to dissuade a user from purchasing the full text of the books, since the captions are not a substitute and do not provide a replacement for a book or e-book. Audible claims that the brief display of words does not provide a meaningful substitute for the actual book because the text of the original work is transcribed in small portions, it is displayed only momentarily and in sync with the audio, and it does not provide the ability to refer back or flip through a full coherent text. (As for the second fair use factor, Audible argues that the fair use case hinges on the other three factors.)

Taking the four factors together, Audible argues that Captions is a fair use of the licensed audiobooks.

Publishers’ Reply to the Fair Use Argument

In reply to Audible’s fair use arguments, the publishers argue that the Captions feature is not transformative and gives access to the entirety of the text, which is not fair use. Under the first fair use factor, the publishers argue that Captions is not transformative as it does not serve another and different purpose than what would be accomplished by the underlying text: both serve the purpose of reading. The publishers argue that the Captions feature “does not shed any new light on the text of Publishers’ Works, it does not comment on or criticize them, and it is not used to find an authorized version of them; it merely provides the Works’ text in competition with authorized offerings.”

Under the second factor, the publishers argue that most of the copyrighted works at issue are creative and fictional, weighing against a finding of fair use. Under the third factor, the publishers argue that the Captions feature provides access to the entirety of the work, also weighing against fair use. Here, publishers distinguish Captions from the Google Books snippets fair use case. Where Google Books only provides snippets of books to allow a user to assess whether access to the entire book would be useful, at no point do these snippets display more than 1/8 of a page around a searched keywords and 10% of each book is permanently unavailable. In contrast, Captions has no such restrictions and the feature would allow access to 100% of the underlying text.

Finally, under the fourth factor, publishers argue that Captions would cannibalize market opportunities for publishers to distribute or license the eBooks of its texts, thus weighing against a finding of fair use. The publishers maintain that Captions is likely to discourage users to purchase the print and ebook versions of the underlying text, and that Captions directly competes with parallel markets for the texts, including cross-format services like Audible’s own Immersive Reading services.

In sum, the publishers argue that the balance of the factors weighs against Audible’s fair use claim.

Going Forward

The parties are currently waiting on a decision on whether a preliminary injunction will be granted, which would prevent Audible from launching Captions on all of the publishers catalog pending trial. Meanwhile, Audible is delaying the complete rollout of Audible Captions, making it available only for audiobooks in the public domain until the litigation is resolved. We will continue to monitor and provide updates on the litigation.

Academic Authors Find Larger Audience through Controlled Digital Lending

Posted October 8, 2019

We thank the Internet Archive for permission to cross-post this piece on how controlled digital lending (“CDL”) can benefit academic authors, originally published on the Internet Archive Blogs. CDL is a model in which libraries digitize works in their collections and circulate the digitized title in place of a physical one. For more about CDL, check out our earlier coverage on the topic, including statements from authors in support of the model.

For Robert Darnton, the benefit of Controlled Digital Lending to academic authors is obvious: More people can read their work.

As the Carl H. Pforzheimer University Professor and the University Librarian, Emeritus at Harvard University, Darnton has long been a champion of broadening access to information. He also sees the value of making materials more widely available when it comes to his own research outputs.

Darnton has made two of his books, which are both still in print, freely available online: Mesmerism and the End of the Enlightenment in France (Harvard University Press, 1968) and The Business of Enlightenment: A Publishing History of the Encyclopédie, 1775-1800 (Harvard University Press, 1979). Several other of his titles are available to borrow electronically through the Internet Archive’s Open Library.

Eventually, Darnton said he’d like all his titles to be digitized. “I feel it’s in my best interest to reach as large a public audience as I possibly can,” said Darnton. He believes the exposure online helps with the marketing of his books. Indeed, there was an increase in sales of Mesmerism once it was digitized.

Many academics don’t rely on books for income and it’s rare that royalties continue after a few years. “What authors want when that ceases is to reach readers. This is the best way to do it,” Darnton said. “CDL is a good system and a way to really improve people’s access to literature without harming anyone.”

In higher education, resources from one campus library to another can vary widely. Even at Harvard, Darnton said it’s not possible to make all books available—let alone small libraries with limited budgets. Libraries can benefit from interlibrary loans and digital lending can provide even greater relief from isolation for institutions without the means of expanding their collections.

“CDL can make an enormous difference, even for such privileged environments as Harvard,” Darnton said. “There is momentum behind CDL. It is not just the way to go, but the way things are going.”