Category Archives: News

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.

Authors Alliance Signs on to Amicus Brief in Hunley v. Instagram

Posted October 12, 2022

Authors Alliance is pleased to announce that we have joined with several civil society and library organizations (EFF, CCIA, ALA, ARL, OTW and ACRL) on an amicus brief submitted to the Ninth Circuit Court of Appeals in Hunley v. Instagram, a case about whether individuals and organizations that merely link to content can be liable for secondary copyright infringement, a judicial doctrine which places liability on a party that knowingly contributes to or facilitates copyright infringement, but does not itself directly infringe a copyright. More specifically, the case asks whether Instagram can be secondarily liable for copyright infringement when users use its “embedding” feature, whereby websites and platforms can employ code to display an Instagram post within their own content.

The Case

The case arose when a group of photographers, who had captured images related to the death of George Floyd and the 2016 election, became upset that their images were being used in a variety of media outlets without permission. The outlets had used Instagram’s embedding tool to link and post the images rather than copying the images directly. The photographers then sued Instagram in the Northern District of California, on the theory that by offering the “embedding” feature, it was facilitating copyright infringement of others and therefore liable.

The district court dismissed the photographers’ claim because it did not pass muster under an inquiry known as the “server test,” established in the seminal Ninth Circuit case, Perfect 10 v. Amazon. The server test is premised on the idea that a website or platform does not violate the copyright holder’s exclusive right to display their work when a copy of the work is not stored on that website or platform’s servers. In short, the inquiry asks whether the work was stored on a website’s server, in which case the website could be liable for infringement, or whether that website merely links elsewhere without storing a copy of the work, in which case it cannot. When media outlets in this case embedded Instagram posts into their content, they did so using code that embeds and displays the post, but the posts were not actually stored on the outlets’ servers. Therefore, the district court found that Instagram was not liable for secondary infringement under the server test.

The photographers have appealed to the Ninth Circuit Court of Appeals to challenge the validity of the server test for embedded content. It is worth noting that district courts in other circuits have disapproved of the Ninth Circuit’s Perfect 10 server test and found that embedding can constitute secondary infringement in some cases, and it is not applied in all jurisdictions. For this reason, some have speculated that the Ninth Circuit’s server test is ripe for revisiting.

The Brief

Our amicus brief asks the Ninth Circuit to affirm the district court’s dismissal of the photographers’ complaint and the continued viability of the server test. It argues that the Perfect 10 server test should not be discarded, as it has paved the way for an internet that depends on the use of hyperlinks to connect information and present it efficiently. The brief explains how linking works, why linking is important, and the negative consequences for a wide variety of internet users—including authors—that could occur if the court narrows or rejects the server test.

First, our brief explains how embedding and linking work: when an article or website links to other content, it accomplishes this by using computer code to incorporate another’s content into the work and/or direct users to it. Our brief argues that linking, and particularly the act of inline linking (providing links within the text of a website or blog post itself, as we have done throughout this post) is fundamental to the internet as we know it. Online advertising, message boards, and social media platforms depend on the ability to connect sources of information and direct users elsewhere online.

Second, our brief argues that abandoning or narrowing the Perfect 10 server test could introduce liability for inline linking. Like embedding social media posts, inline linking to other content incorporates materials created by others indirectly without the secondary user actually hosting that content on a server. In this way, inline linking allows internet users to efficiently verify information or learn more about a given topic in just a click. Inline linking is in this way analogous to embedding, meaning that a decision in favor of secondary liability in this case could threaten the legality of inline linking, potentially disrupting the very fabric of the internet as we know it.

Like the general internet-using public, authors also depend on their ability to link to other sources in their online writings to cite to other sources and engage with other works of authorship. In fact, this is why we decided to weigh in on this case: a decision that introduces liability for inline linking could drastically alter how authors can cite to other sources of information and how they can conduct research in a digital environment. Authors rely on inline linking to save space and preserve the readability of their works while citing sources and engaging with other works. Authors also depend on online linking to perform research, as it can quickly and easily direct them to new sources of information. As more and more works are born digital, an author’s ability to link to other content to enrich their scholarship has become more important than ever. It is crucial that this ability is protected in order for the internet to continue to be an engine of learning and the advancement of knowledge.

So far, the parties have submitted their opening briefs in this case, and several other amicus briefs have been filed. Oral argument has not yet been scheduled. Authors Alliance will keep our readers informed about updates in this case as it moves forward.

Hunley-amicus-EFF-CCIA-ALA-et-al

Wiley Removes Over 1,300 Ebooks from Academic Library Collections

Posted October 7, 2022

“chair and empty bookshelf” by Mark Z. is licensed under CC BY-NC 2.0.

Last month, publisher John Wiley & Sons made headlines when it made the controversial decision to abruptly remove over 1,300 ebooks from academic library collections. It did so by removing these titles from ProQuest Academic Complete, a large collection of ebooks that many libraries subscribe to. Earlier this week, Wiley made headlines again when it announced it was temporarily restoring access in the face of public pressure.

As has unfortunately been typical with other changes in how publishers work (or refuse to work) with libraries, authors of these books were left in the dark, with little say on the decision. We have heard from many authors who believe, as we do, that libraries play an extraordinarily important role in preserving and providing access to the materials we write, in all formats, and we believe they should be able to purchase access on reasonable terms so they can fulfill their missions. We’re writing this post to highlight the Wiley situation and outline some ways that authors can make their voices heard.

The Wiley Ebook Situation

Wiley’s move was particularly shocking since the removal of access coincided with the beginning of the academic term. Countless students who were relying on library access to textbooks they needed for their academic courses lost this access exactly when these texts were most needed. It is increasingly common for publishers of academic texts like these to refuse to sell electronic copies to libraries at all, which seems to be the tactic Wiley was pursuing here, leaving these students with no low cost alternative (and in fact, Wiley reportedly refuses to sell textbooks to libraries at all, in either digital or print format). This left instructors scrambling to find new texts to assign, redesign syllabi, and otherwise adopt their courses to a loss of access to the Wiley texts, at a moment when their attention should have been focused on teaching and welcoming students.

Unsurprisingly, the decision was widely condemned by librarians, civil society organizations, and university libraries. #ebookSOS, which has been working to highlight these kinds of challenges for several years, organized several efforts in protest.

Authors Alliance began working with #ebookSOS to raise awareness of this issue among authors whose works were removed from library collections in an effort to encourage Wiley to reverse its decision and provide assurances that it will not take measures like these in the future. The authors we’ve heard from want their books to be read, to serve learning, and to be used to share knowledge with the world. Some of these authors view Wiley’s decision as a betrayal, and indeed, it is hard to square with Wiley’s asserted commitment to “[e]nabling discovery by supporting access to knowledge and fueling the engines of research.”

Earlier this week, Wiley relented. It announced that it had decided to temporarily reverse course, restoring access to the removed texts until June 2023, when they will once again be removed. Wiley apologized for the “disruption” the move caused to students, libraries, and instructors, admitting that it caught them off guard. But while this may ease the burden on instructors and students for now, librarians have resoundingly found the measure to be insufficient. Temporarily restoring access to these particular texts does not solve the fundamental problem that large publishers like Wiley can—and do—unilaterally and without warning remove books from digital library shelves, even if their motive is purely to increase their own profits. We’ve continued to hear from authors who have strong reservations both about Wiley’s decision and how it went about making it. If you are an author published by Wiley and have thoughts about its decision to remove access to these ebooks, we would love to hear from you: Please write to us at info@authorsalliance.org.

What Authors Can Do

Unfortunately, this is not the first time that a publisher has acted unilaterally to make its ebooks less accessible to the detriment of readers and authors. Trade publisher MacMillan at one point announced it would employ a two-week embargo before libraries could acquire newly published titles as ebooks. Similarly, rising ebook prices during the pandemic hurt many students who relied on these works to learn. Yet, as Wiley’s response to the outcry following its announcement shows, a concerted campaign to pressure these publishers can have results. For example, MacMillan ultimately abandoned its plans for an ebook embargo following a boycott of all its ebook titles by various library systems.

Most authors have little say in how publishers distribute their works. Publishing contracts typically give publishers broad discretion to determine when, how, and on what terms authors’ books are sold. While it is understandable that authors will not be involved in every decision about distribution, authors have placed trust in publishers that they will make reasonable decisions. So, what can authors do?

First, as the Wiley ebook situation has shown, authors’ voices do matter. If you have concerns about your book being available to libraries, speak out! One reason that Authors Alliance exists is to help amplify your voice and help publishers understand your views on how their legal and policy decisions affect your interests in making your books available to the world. If you’re wondering about how we might help, please get in touch—we’d love to hear from you. Second, authors do have an opportunity to influence how their books are shared when negotiating their publishing contracts. There are no guarantees that a publisher will accept your proposed contract language (and we suspect most will be resistant). But given that several publishers have recently demonstrated their unwillingness to make reasonable distribution decisions, it seems to us equally reasonable to ask for contractual assurances that they will continue to sell your book to libraries on reasonable terms, in all formats. For some language to serve as a starting point, #ebooksos has shared their model contract language for authors, here.

Biden’s Open Access to Research Policy and How it Affects Authors

Several weeks ago, the White House Office of Science and Technology Policy (OSTP) issued a memo titled Ensuring Free, Immediate, and Equitable Access to Federally Funded Research. The memo, which builds upon earlier policies including this 2013 Obama administration open access memo and this 2008 National Institutes of Health policy, directs all federal agencies with research and development spending to take steps to ensure that federally sponsored research in the form of scholarship and research data will be available free of charge from the day of publication.

The initial release of the Biden OSTP memo generated a rush of news speculating about its impact on scholarly publishing—how major publishers would react, how academic institutions would respond (and specifically whether it would result in a shift towards more “Gold Open Access” publishing in which authors pay publishers an article processing charge to publishing their article openly), and how many articles this change would affect. SPARC, a nonprofit dedicated to supporting open research, has a great summary of the policy and related news.

We recently caught up with Peter Suber, Senior Advisor on Open Access at Harvard University Library, to talk about the implications of the OSTP policy for authors. Peter is a founding member of Authors Alliance who has been deeply involved in advocating for open access for several decades.

Q: Give us a brief overview of the new OSTP policy – what is this and why is it important?

The key background is that back in 2013, the Obama White House OSTP issued a memo asking the 20 largest federal funding agencies to adopt OA policies. The memo applied to agencies spending over $100 million per year on extramural research funding. The new memo from the Biden White House extends and strengthens the Obama memo in three important ways:

It covers all federal funders, not just the largest ones. I’ve seen estimates that the new memo covers more than 400 agencies, but the OSTP has not yet released a precise number. Among other agencies, the new memo covers the National Endowment for the Humanities. So for the first time federal OA policies will cover the humanities and not just the sciences.
The Obama memo permitted embargoes of up to 12 months, and publishers routinely demanded maximum embargoes. The Biden memo eliminates embargoes and requires federally funded research to be open on the date of publication. Like the Gates Foundation —which I believe was the first funder to require unembargoed OA to the research it funded—the White House announced its no-embargo policy several years before it will take effect, giving publishers plenty of time to adapt.
The Obama memo covers data, not just articles. This is an important step to cover more research outputs and more of the practices that make up open science and open scholarship.

How will publishers react to this new policy? Of course they have the right to refuse to publish federally funded research. When the NIH policy was new in 2008, we didn’t know whether any publishers would refuse. Because many publishers lobbied bitterly against it and we thought some might do just that. But it turns out that none refused. It’s hard to prove a negative, but the Open Access Directory keeps a crowd-sourced list of publisher policies on NIH-funded authors, and has so far turned up no publishers who refuse to publish NIH-funded authors just because they are covered by a mandatory OA policy.

Of course one reason is that the NIH is so large. It’s by far the world’s largest funder of non-classified research. Any publishers who refuse to publish NIH-funded authors would abandon a huge vein of high-quality research to their rivals. But when federal OA policy covers smaller agencies as well, some publishers might well refuse to publish, say, NEH-funded research, because they don’t receive many submissions from NEH-funded authors. This is something to watch.

Q: The Biden memo does not address ownership of rights or licensing for either scholarship or data. How do you think agencies will address rights issues in their implementation?

Good point. Neither the Obama nor the Bidem memo explicitly requires open licenses. But both require that agency policies permit “reuse”, which will require open licenses in practice. Unfortunately the Obama White House approved agency policies that did not live up to this requirement. We can hope the Biden White House will do better on that point. Of course Plan S requires a CC-BY license and the Biden memo conspicuously stops short of that. As a result, we can expect lots of lobbying, either at the agency level or the OSTP level — for and against explicit open licensing requirements, and for and against specific licenses like CC-BY.

Q: Some people have written about how open access policies and Plan S Rights Retention Strategy in particular undermine authors rights. E.g., this post on Scholarly Kitchen. Our point of view is that those policies address a negotiating imbalance that has traditionally favored publishers, and allows academic authors –who on the whole prefer broad reach and access to their work– to switch the “default” to open for their articles even when their publishers wish otherwise. Do you have a response to that argument that OA policies for funded research undermine authors rights?

I’ve never seen a good argument that rights retention policies harm authors or limit their rights. On the contrary, these policies help authors and enlarge their rights. I’ve made this case in response to criticisms of the rights-retention OA policies at Harvard, and I’ve enumerated the benefits of rights-retention policies for authors. (For background on the Harvard rights-retention policies, I can recommend a handout I wrote for a talk last year.)

One criticism is that rights-retention OA policies will reduce author choice by causing some publishers to refuse to publish covered authors. But in practice there is no evidence that this actually happens. I’m not aware of a single instance of this happening In the 14 years that Harvard has had its rights-retention policies. The same goes for the more than 80 Harvard-style policies now in effect in North America, Europe, Africa, Asia, and Australasia.

In fairness, Harvard-style policies give authors the right to waive the open license. By default the university has non-exclusive rights, but authors can waive that license if they wish, and publishers can demand that authors get the waiver. But that too is rare. In our case, very few publishers – just two or three – systematically make that demand, and I haven’t heard that it’s common anywhere else. Our waiver rate is below 5%. Even with waiver options, these policies definitely shift the default to open.

Under the Plan S rights retention strategy, authors add a paragraph to their submission letter saying that any accepted manuscript arising from the submission is already under a CC-BY license. Publishers have the right to desk-reject those articles upon submission. But we don’t know whether any will actually do so. Plan S has a tool to track journal compliance with the Plan S terms, and it will alert authors to steer clear of those publishers.

Q: There has been speculation that the Biden memo will accelerate the rate at which publishers adopt a “article processing charge” Gold OA model that will require all authors (or their funders or universities) to pay for their articles to be published. What do you think?

First we should note that the White House guidelines are 100% repository-based or “green”. They require deposit in OA repositories, not publication in OA journals. As far as I can tell, publishing in an OA journal would not even count toward compliance, since those authors would still have to deposit their texts and data in suitable repositories.

Publishers could say to federally-funded authors, “You can publish with us only if you pay an APC [article processing charge] for our gold option.” Authors could take them up on that or they could withdraw their submissions and look elsewhere. The new OSTP memo lets authors use some of their grant funds to pay “reasonable publication costs”. Some authors may be fooled and think that paying the fee is the only way to comply with the funder policy. But that would be untrue. As more and more authors realize that they can comply with the funder policy by depositing in a repository, at no charge, I predict that they will divide. Some will take the costless path to compliance and refuse to pay what I’ve called a prestige tax just to publish in a certain journal. Others will pay the prestige tax for a journal’s brand and reputation, if only because journal prestige still carries a lot of weight with academic authors. This obstacle to frictionless sharing is a cultural obstacle that new policies cannot directly dismantle. But we should remember that when publishers demand a publication fee and authors pay it, the authors are paying for the journal brand. They are not paying to comply with the funder policy, which they could do at no charge.

The Biden memo is equivocal about this possibility. On the one hand, it lets federal grantees use grant money to pay reasonable publication costs. On the other hand, it requires that agency policies “ensure equitable delivery” of federally funded research. The memo uses “equity” language in similar contexts half a dozen times. On one natural interpretation, this language rules out APC barriers to compliance, because APCs exclude some authors on economic grounds. This is another front on which there will be lots of lobbying as the agencies put their policies into writing. In fact, the lobbying has already begun.

Some publishers will undoubtedly demand fees or try to demand fees to publish federally-funded authors. But we already know that some will not. Science, for example, has already said that it will publish federally-funded authors without requiring them to buy its “gold” OA option. AAAS said that “it is already our policy that authors who publish with one of our journals can make the accepted version of their manuscript publicly available in institutional repositories immediately upon publication, without delay.” In a related editorial, Science explained that its authors may already deposit in the OA repositories of their choice “without delay or incurring additional fees.” It opposes a full shift toward “author pays” gold OA because it discriminates against many kinds of researchers, such as early-career researchers, researchers from smaller schools, and those in underfunded disciplines. It agrees that the APC model “can be inequitable for many scientists and institutions.” Some journals will follow Science, because it’s Science. Some will do so to avoid the equity barrier. And some will do so to signal that they will only evaluate submissions on their merits.

Q: As agencies go about developing their own plans for implementing this policy, will authors or others have an opportunity to give input, or will this be a closed-door process?

We don’t know yet. The White House didn’t solicit public comments for the 2022 memo, which angers some publishers. The Obama white house memo did solicit public comments, twice, and both times the comments overwhelmingly favored the policy.

It seems that agencies could still call for public comments before they finalize their policies. The actual development of the policies will be coordinated by three agencies: the OSTP, the Office of Management and Budget, and the National Science and Technology Council Subcommittee on Open Science. We don’t know what guidelines, if any, they will lay down for that coordination.

The background on coordination goes back to the Obama White House. When it told the large agencies that they must adopt OA policies, it allowed the policies to differ but asked agencies to work together to ensure that the policies aligned. In the end, I believe the policies differed too much. Universities really feel this because they have to comply with all of the policies, since they receive grants from each agency. Like the Obama memo, the Biden memo allows the policies to differ and calls for coordination. We can hope for less divergence than in the past.

Authors for Libraries

Posted September 29, 2022

Last month in our newsletter to members (join here so you don’t miss future news!), we shared a call to sign on to an open letter, organized by Fight for the Future, on behalf of authors in support of libraries. We’re really pleased to announce that this letter is now posted online and open for more signatures here. We encourage you to read it and sign if you support its message.

We’ve written quite a bit recently about the challenges libraries face today – from the lawsuit filed against the Internet Archive over controlled digital lending, to efforts to restrict libraries from preserving and lending ebooks. Just this week we saw one publisher, John Wiley & Sons, unilaterally yank 1,379 educational titles from library ebook collections (as far as we can tell, with no author input), refusing to sell electronic copies to libraries and forcing teachers and students to scramble for access just as the academic term begins.

From our perspective, libraries are critically important partners in making sure that authors’ works are read and preserved. As the letter explains, “Libraries are a fundamental collective good.” The letter’s signatories “are disheartened by the recent attacks against libraries being made in our name by trade associations such as the Association of American Publishers and the Publishers Association: undermining the traditional rights of libraries to own and preserve books, intimidating libraries with lawsuits, and smearing librarians.”

Unfortunately, and predictably, the letter has received almost instant condemnation from the Authors Guild, the AAP (which, you might recall, has asserted that it has acted as legal counsel for the publishers who brought the Hachette v. Internet Archive lawsuit), and other related groups. They assert: 1) that authors don’t really understand what the Internet Archive controlled digital lending lawsuit is about, and if they did they wouldn’t support it, and 2) that “real libraries” don’t engage in activities like the controlled digital lending that is the subject of the Internet Archive lawsuit.

Neither argument holds weight. As part of our own efforts to support controlled digital lending in this case, Authors Alliance conducted a survey of our members and other authors. Responses showed that many authors do support CDL, and support it strongly. Additionally, many libraries across the country practice CDL: it is far from a practice unique to the Internet Archive.

The RAP Act: Protecting Creative Expression in Court

Posted September 14, 2022

Rap on Trial: A Legal Guide for Attorneys

One of Authors Alliance’s long standing goals is to support authors’ freedom of expression. As we’ve recently highlighted, sometimes challenges to those rights come from unusual sources in the law.

This week we caught up with Jack Lerner, Clinical Professor of Law and Director of the Intellectual Property, Arts, and Technology Clinic at UC Irvine Law. Jack is the co-author, with Professor Charis Kubrin, of Rap on Trial: A Legal Guide for Attorneys, a resource which aims to address an alarming trend of prosecutors and courts treating rap lyrics not as a creative and artistic endeavor, but as confessions of illegal behavior and evidence of knowledge, motive, or identity with respect to an alleged crime. As his co-author Charis Kubrin explains, “putting rap on trial has significant implications for how we define creative expression as well as for free speech and the right of all Americans to receive a fair trial.”

Jack’s work and that of several aligned groups has now resulted in three pieces of proposed legislation–one federal bill called the “Restoring Artistic Protection Act” (RAP Act), and two similar bills at the state level in New York and California–that would amend the rules of evidence to make it more difficult for prosecutors to introduce a defendant’s creative or artistic expression as evidence against a defendant in a criminal case. Authors Alliance supports these efforts. The California bill is now sitting on Governor Newsom’s desk, and we have written a letter to the Governor explaining why this legislation is important not just to rap artists, but to all authors and creators, and expressing our hope that it becomes law. Governor Newsom has until September 30th to sign or veto the bill. If he neither signs nor vetoes it, the bill will become law, going into effect in January 2023.

These bills–while addressing discriminatory use of rap lyrics against defendants–are designed to apply broadly to protect many other creators, including authors, from having their creative expressions used against them in court. The RAP Act, for example, states that as a general matter, ”evidence of a defendant’s creative or artistic expression, whether original or derivative, is not admissible against such defendant in a criminal case.” It allows for limited exceptions, such as when the lyrics make a specific reference to the alleged crime, but nonetheless provides strong protections for creative expression. The Act goes on to define “creative or artistic expression” broadly, as “the expression or application of creativity or imagination in the production or arrangement of forms, sounds, words, movements or symbols, including music, dance, performance art, visual art, poetry, literature, film, and other such objects or media.’’

We recently had the opportunity to sit down with Jack and discuss with him the background, and future, of this legislation:

Tell me about what motivated this effort?

Jack: The issues motivating the RAP Act have been going on for a long time. While it’s almost unthinkable that someone would use the music of Johnny Cash (“I shot a man in Reno just to watch him die”) or Eric Clapton (who sang “I Shot the Sheriff,” covering Bob Marley) as evidence against them in a trial, rap lyrics have been used again and again against rappers. Conservatively, scholars have identified over 500 cases in which prosecutors have used rap lyrics as evidence against an artist in court.

The admission of rap lyrics can be extremely detrimental to defendants. Over 25 years of research has shown that the mere association with rap can create a strong negative bias in jurors, who will take the lyrics as more literal, more violent, and more threatening, as compared to lyrics from other genres. All you have to do is label it “rap.”

Can you tell me about the origins of these bills?

The work on this issue began almost a decade ago. Charis Kubrin, who co-authored the Rap on Trial Legal Guide, Charis Kubrin, has been writing about this issue since 2005, and has since conducted astonishing research demonstrating a massive risk of bias when rap lyrics are introduced. When she began to hear regularly from defense attorneys needing help with this issue, we conceived of developing the Guide. Over three years later, with the help of dozens of law students in the IP, Arts, and Tech Clinic at UCI Law, we published the Guide along with a Brief Bank and Case Compendium.

What has been remarkable is that as we surfaced these issues, lawmakers in New York and California found out about them on their own and took action. And proponents from both the entertainment industry and the criminal justice movement have been working with them. The New York bill became the basis for the current federal bill, and the California bill is now on Governor Newsom’s desk for his signature.

How do these bills actually work?

These bills raise the bar for introducing rap lyrics as evidence. The federal bill, for example, would require a prosecutor to establish by “clear and convincing evidence” that the defendant intended the lyrics to have a literal meaning or that the expression refers to the “the specific facts of the crime alleged.”

The California bill is a little bit different. It says that the court should start with the presumption that creative expression is not probative, and requires that prosecutors have to overcome that presumption by showing that the lyrics in question meet a set of criteria for introduction as evidence, such as that they match the specific elements of the crime, or were written close in time to the alleged crime. Notably, the court is required to look at whether the introduction will introduce bias, and must look at all the research I mentioned on the issue of negative bias associated with rap.

How do these bills affect other creators?

These bills apply broadly, protecting artists, authors and all other types of creators. All the cases we’ve identified in our research have been focused on the uniquely negative use of rap lyrics against defendants–but you can see the importance of these protections for authors and other creators, especially in the current political climate. For example, with book censorship taking hold in a variety of places, it’s easy to imagine an aggressive prosecutor trying to use a controversial author’s fiction writing as evidence of criminal activity.

What can authors do?

The federal RAP Act has been co-sponsored by representatives Bowman (NY), Johnson (GA), Maloney (NY), and Jayapal (WA). If you support the bill, you should contact your representative expressing your support.

If you are in California, AB 2799 is currently on Governor Newsom’s desk awaiting his signature to become law. You can contact his office to express your support and encourage him to sign the bill.

Update: Authors Alliance Opposes the Revised Journalism Competition and Preservation Act

Posted September 6, 2022

Today, Authors Alliance joined 20 public interest, civil society, and other like-minded organizations in signing on to a letter opposing the latest iteration of the Journalism Competition and Preservation Act (“JCPA”). The full text of the letter can be found here. Last year, Authors Alliance signed on to an earlier letter voicing opposition to the JCPA when it was initially proposed. A new version of the bill was recently released in the Senate, prompting the bill’s opponents to reiterate our concerns.

In brief, the JCPA would enable collective bargaining by news organizations with large online platforms by creating a “safe harbor” from antitrust law to allow media organizations to band together and negotiate with these platforms. This blog post will explain our concerns about the bill and provide an update on how the legislation has evolved in the months since it was first proposed.

Problems with the JCPA

Touted as bipartisan legislation intended to protect journalism from unfair encroachment by large tech companies, the legislation has received support from groups such as the Authors Guild and some news publications. But civil society organizations have drawn attention to serious problems with the legislation for those who care about robust fair use rights and access to knowledge.

The JCPA would force platforms to negotiate with news publications for “access” to their content to engage in basic activities such as linking to the news publication’s website. By creating what some have dubbed a “link tax,” the JCPA could lead organizations and individuals to link less to other sources out of fear of copyright liability, creating a chilling effect on online speech and making knowledge less accessible. The JCPA could also expand the scope of copyright by covering the aggregation of snippets or headlines from press publications—information that is in many cases not entitled to copyright protection. The JCPA may also work to entrench the largest press publishers while disadvantaging smaller publishers, who lack the sophistication or resources to participate in this collective bargaining.

Changes to Legislative Language

The latest revised bill represents the third round of revisions to the JCPA (Public Knowledge has published comprehensive discussions of the first and second rounds of revisions in recent months for readers interested in learning more). Unfortunately, the latest changes to the JCPA does little to address the concerns voiced by Authors Alliance and our co-signatories last year.

There is some evidence that the bill’s sponsors heard the concerns voiced by Authors Alliance and others, but the changes do not go nearly far enough towards ameliorating our concerns. For example, the latest version of the bill includes a provision stating that it does modify, expand, or alter the rights guaranteed under copyright. But the legislation could also cover activities that are considered to be fair uses (such as aggregating “snippets” from articles and linking), creating uncertainty as to how the fair use doctrine interacts with this proposed legislation.

The revised bill also includes an “employee cap” which would bar news organizations with over 1,500 employees from participating in the anticipated collective bargaining to help address concerns about entrenching the largest players. But this would exclude just three of the country’s largest news publications, making it ineffective at addressing monopoly concerns. As today’s letter points out, the legislation as currently envisioned could “cement and stimulate consolidation in the industry and create new barriers to entry for new and innovative models of truly independent, local journalism.” To make matters worse, the JCPA does nothing to ensure that arbitration that any gains to news organizations will actually go to the journalists actually writing the articles. The legislation establishes “collective bargaining” rights for publications, many of which do not allow their employees to collectively bargain. By prioritizing publications over the authors who make these publications possible, the bill does little to address the difficulties faced by journalists and other authors.

Finally, other changes in the legislation create new problems. New language in the bill would force platforms to carry content of digital journalism organizations that participate in collective negotiations, which could lead to platforms being required to aggregate content containing extreme views or misinformation. This raises serious free expression concerns.

Authors Alliance cares deeply about a vibrant and diverse publishing ecosystem where smaller publishers are not disadvantaged, and the legislation as envisioned would do just the opposite.

20210617_JCPA-Letter-to-Congress

A “brief” update on the Warhol Case – Amicus Briefs and the Solicitor General’s View

Posted August 25, 2022

Grokster Briefs, photo by Wendy Seltzer, CC-BY 2.0, showing amicus briefs from an earlier copyright case before the Supreme Court, MGM v. Grokster

Andy Warhol Foundation v. Goldsmith is high stakes, as far as copyright law goes. The fair use case, currently before the Supreme Court, has the potential to radically change how we understand and rely on fair use, so it’s not surprising that the case has generated significant interest. We’ve chronicled the background of the suit and arguments made by the Andy Warhol Foundation (“AWF”) here and by photographer Lynn Goldsmith, here.

Last week, the final set of amicus curiae (friend of the court) briefs were filed. In total, there were 38 amicus briefs filed: 8 in support of the AWF, 20 in support of Goldsmith, and 9 in support of neither party. Our own brief, in support of AWF, is here.

If you add them up, the amicus briefs total around 240,000 words (for context, that’s just a little shorter than A Game of Thrones!). They come from a range of perspectives, with submissions from the “Royal Manticoran Navy: The Official Honor Harrington Fan Association;” Dr. Seuss Enterprises; Senator Marsha Blackburn; individual artists, photographers, photography groups; various media and publishing industry associations; at least 59 law and art professors across a number of different briefs (for, against, and neutral); several library groups and museums; and many others. It’s hard to summarize all of the briefs in a single blog post, but you can read them yourself on the Supreme Court website here.

The U.S. Government’s amicus brief: making art may be a fair use, but selling it isn’t

One brief stands out: the amicus brief submitted by the United States government. Typically, the government will only file an amicus brief when it has a meaningful federal interest in the case, which it identified here as primarily based on the policy advisory role of the U.S. Copyright Office and the U.S. Patent and Trademark Office to Congress and the Executive Branch, respectively. Submitted by the Solicitor General and co-authored by a number of U.S. Copyright Office staff, it argues that the Second Circuit rightly decided the case and that Goldsmith should prevail. If nothing else, it’s worth a read to understand how the Copyright Office staff think about fair use.

The brief largely echoes and bolsters the arguments made by Goldsmith, but reframes a key issue in the case with a new and unusual argument about licensing that we thought worth highlighting. First, the government brief starts by redefining what the case is about, telling the court that the question presented is “whether petitioner established that its licensing of the silkscreen image was a ‘transformative’ use . . . ” (emphasis mine). That is a subtle but important change from how AWF presented the question to the Supreme Court when it decided to hear the case. AWF stated the question as “whether a work of art is ‘transformative’ when it conveys a different meaning or message from its source material.” Goldsmith, in her brief opposing Supreme Court review, framed the question slightly differently but still focused on the original Warhol prints and not their subsequent licensing. She argued that the question is “whether the Second Circuit correctly held that Warhol’s silkscreens of Prince did not constitute a transformative use.”

The government’s brief then goes on to make the following argument: that “the fair-use inquiry focuses on the specific use—here, petitioner’s 2016 commercial licensing of the Orange Prince image to Condé Nast—that is alleged to be infringing.”

The first part of that statement is nothing new: fair use is a fact-specific inquiry. What’s interesting is how the government then goes on to narrowly defining the “use” in question as AWF’s subsequent commercial licensing of the work. The government argues that the court should distinguish between the creation of Warhol’s original prints—which may have been a fair use—and the exploitation of the Warhol print via commercial licensing, which the government argues was not. The government isn’t entirely alone in suggesting this approach. For example, a brief by a number of library organizations suggested that the court might focus on the commercial licensing as a way to resolve this case, and a brief by a number of museums discuss some of the implications of this approach.

The government’s narrow focus on commercial licensing seems like an attempt at a Solomonic resolution for this particular case, and may seem like a good way to achieve a just result for fair use edge cases. But it’s worth pausing to consider some unintended consequences.

It’s a novel approach—we can’t think of a single case in which a court ruled that the creation of a secondary work was fair, but its subsequent commercial exploitation (such as when a work is licensed to a magazine or publisher) was not.

This new approach seems likely to create an awful lot of confusion and uncertainty for creators. It would mean that ownership of rights in a secondary work that rely on fair use would be permanently hobbled; instead of the full bundle of rights that copyright provides (such as the rights to distribute, perform, and reproduce the work), the author relying on fair use to create a new work would be stuck with a more tenuous set of rights, since this new work could at any time be converted from a “lawful fair use” with a copyright owned by the author, to an “infringing derivative” based on its crossing an undefined line of too much commercial exploitation.

This change in status, from lawful to infringing, causes particular uncertainty for creators because of Section 103(a), a part of the copyright act we don’t discuss much. Section 103(a) states that, for a derivative or compilation that incorporates pre-existing copyrighted materials, there is no copyright at all “in any part of the work in which such material has been used unlawfully.” For a work like the Warhol print that is so tightly integrated with the Goldsmith original, Section 103(a) would put the Warhol print into a copyright twilight zone—the Warhol foundation wouldn’t hold any copyright at all, but neither would anyone else. It would effectively give Goldsmith a veto over any subsequent use, though not actually owning rights in the secondary work itself.

This could also generate quite a bit of uncertainty for downstream users who were relying on AWF’s previously valid rights in the secondary work. Imagine, for example, that prior to licensing the Warhol image to Condé Nast, AWF had granted a free license to a number of non-profit libraries, museums, or art history scholars to reproduce and distribute the Warhol image in a variety of educational and scholarly contexts. We presume that this licensing passes fair use muster and so AWF still holds rights. Then, AWF later licenses the Warhol print to Condé Nast and crosses the fair use line. Section 103(a) would then apply to extinguish all of AWF’s rights that underlie the license for scholarly use, converting previously valid, licensed uses into ones that potentially infringe themselves on Goldsmith’s rights.

Perhaps those downstream users could then rely on fair use themselves to continue to make use of the prints, but that puts an awful lot of responsibility on those users to understand and apply fair use themselves so that they are sure to stay within the bounds of the law. It also would require those users to somehow learn of the subsequent infringing use and extinguishment of their license. That kind of notification isn’t something the copyright system is currently well-suited to accomplish. It also casts aside those users outside the U.S. who don’t have any such backup fair use pathway to legitimize their use.

Commerciality and market considerations certainly play an important role in the fair use assessment, and maybe it would have made a difference in this case if Warhol had actually agreed not to commercialize the prints but then later did (there is no evidence of this). But, as it stands, it seems to us that creating a category of secondary copyrighted works that are only sometimes fair use, until they’re not based on subsequent commercial exploitation, isn’t the best option.

Authors Alliance Submits Amicus Brief in Sicre de Fontbrune v. Wofsy

Posted August 23, 2022

Yesterday, Authors Alliance submitted an amicus brief in Sicre de Fontbrune v. Wofsy, joined by the Electronic Frontier Foundation, The Project Gutenberg Literary Archive Foundation, and Public Knowledge. We have been covering this case on our blog over the past few weeks, and are delighted we could share our perspective with the Ninth Circuit Court of Appeals as it considers whether to grant Wofsy’s request for a rehearing. You can read our full brief below.

Our brief makes two principal arguments for why the Ninth Circuit should re-hear the case. First, we explain that the case has serious First Amendment implications which could affect the free speech rights of countless U.S. authors and members of the public. Next, we argue that the errors the original panel of Ninth Circuit judges made in its fair use analysis are serious enough that the Ninth Circuit should reconsider whether Wofsy has a viable fair use defense to Sicre de Fontbrune’s infringement claim.

In our fair use argument, we drilled down further on the various errors the panel made as well as the serious ramifications its decision could have on authors’ ability to rely on fair use to create new works of authorship. We argue that the panel failed to consider the First Amendment limitations on copyright protection: the photographs in question exhibited minimal creativity, which the court should have considered as part of its analysis of the nature of the works at issue. We also argue that the court erred by disagreeing with the lower court’s finding that Wofsy’s use was aligned with scholarship and research—prototypical examples of fair use set forth in the Copyright Act. Finally, we explain that fair use is a crucial First Amendment safeguard, which the panel should also have given more weight to in its decision.

Authors Alliance extends our thanks to Kathryn Thornton at Ropes & Gray for providing support on this brief, as well as our fellow amici for their feedback and support.

Click to access Sicre-de-Fontbrune-v.-Wofsy-Amicus-Brief-in-Support-of-Petition-for-Rehearing.pdf

Fair Use, the First Amendment, and Foreign Copyright Judgments Part II

Posted August 16, 2022

Earlier this month, we wrote about the recent Ninth Circuit decision in Sicre de Fontbrune v. Wofsy—a case about whether U.S. Courts should enforce foreign copyright judgments when the challenged use would likely be a fair use if the case were brought in the United States.

The good news from Sicre de Fontbrune (at least for U.S. authors) was that the Ninth Circuit seemed to agree that fair use is an important enough matter of public policy to at least deserve further assessment before enforcing a foreign judgment, though it didn’t answer the issue definitively. Although the U.S. is not totally unique in how it approaches fair use, fair use is a distinctive and important part of U.S. public policy, and courts have repeatedly emphasized how it supports core free speech rights as embodied in the First Amendment. So, we think it makes sense that courts should give special attention to fair use and conduct a thorough analysis when U.S. authors have relied on that right.

But unfortunately, when the Ninth Circuit conducted its own fair use assessment, it gave Wofsy’s fair use assertion anything but special attention, conducting a more cursory analysis than the doctrine requires. We see two grave errors in the Ninth Circuit’s decision.

So what did the Ninth Circuit get wrong?

First, some basic facts from the case: Wofsy (the defendant) got permission from the Picasso estate to publish what has now become a standard Picasso reference work, The Picasso Project. The Picasso Project documents Picasso’s greatest works and incorporates substantial reference information. Wofsy reused a number of images of Picasso paintings from an earlier, larger work known as the Zervos Catalogue, in which Sicre De Fontbrune bought rights to in the late 1970s. The Zervos Catalogue is a 33-volume work with over 16,000 images of Picasso’s art, produced with cooperation from Picasso and his estate from 1932-1979. The Zervos Catalogue, which does not contain the same reference information as The Picasso Project, is now out of print and selling on the used market for upwards of $20,000 for all 33 volumes. The Picasso Project is 28 volumes, each of which can be purchased individually for $150 directly from Wofsy (or $4,200 for the whole set).

Sicre de Fontbrune originally sued Wofsy in French court in the mid-1990s when he discovered copies of The Picasso Project for sale in a French bookstore. According to the Ninth Circuit Court’s retelling of the French case, The Picasso Project reused some 1,400 images from the Zervos Catalogue. The court explained that Sicre de Fontbrune’s claim was not that Wofsy infringed Picasso’s copyrights (remember, he had permission from the Picasso estate), but that Wofsy had infringed Sicre de Fontbrune’s rights in the photographs that it had procured of Picasso’s art and published in the Zervos Catalogue.

The district court, in its own abbreviated fair use analysis, concluded that the use was fair, but the Ninth Circuit reversed. You can read the Ninth Circuit’s fair use reasoning here.

The most significant and concerning error in the Ninth Circuit’s opinion is that it didn’t actually evaluate any of the individual photographs in which Sicre de Fontbrune claimed his rights were infringed. The second factor in fair use analysis requires courts to assess the “nature and character” of the underlying photographs. In the words of another Ninth Circuit opinion, the second fair use factor “recognizes that creative works are ‘closer to the core of intended copyright protection’ than informational and functional works, ‘with the consequence that fair use is more difficult to establish when the former works are copied.’”

This factor is particularly important in this case because limits on the scope of copyright protection are one of the other ways that copyright law avoids restricting First Amendment protected speech. As the Supreme Court has explained, “First Amendment protections [are] . . . embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use.” Those limits provide breathing room for the public to freely use underlying ideas and concepts in copyrighted works, while preventing others from locking up that underlying expression from further reuse without adding anything creative or new.

In this case, the defendants didn’t argue (and the court didn’t consider) that the photographs may not be protectable under U.S. law, but the court should have considered the creativity of these photographs more thoroughly as part of its fair use assessment. Instead, the panel merely recited the adage that “photos are generally viewed as creative” and then accepted without question the judgment of the French court regarding whether the photographs could be protected by copyright, using French legal standards to judge creativity, that the photos have “creative elements.” There is nothing to suggest that the panel (or the district court) ever even looked at a copy of the pictures.

While it is true that some photographs can be highly original and creative, the photos in this case are mere photographic representations of other works, exhibiting almost no creativity (a “modicum” of which is required for a work to be protected by copyright in the U.S.). Unfortunately, given the sparse briefing on the fair use issue below and lack of argument from the plaintiffs on fair use, the court never had the opportunity to really look into the creativity issue. At a minimum, the Ninth Circuit should have sent this issue back down to the district court for it to make a judgment for itself. If either court had looked at these photos, it seems obvious to us that the minimal creativity they exhibit would have resulted in the second fair use factor strongly favoring Wofsy’s use.

Picasso’s Pierrot and Harlequin (1918), one of the Zervos images reproduced in The Picasso Project. The image on the left is from the Art Institute of Chicago, which holds the original. The image on the right is from Zervos Catalogue, displaying no meaningful creative addition to Picasso’s original.

The other major mistake the court made was to not meaningfully evaluate the “purpose and character” and transformative nature of Wofsy’s use under the first fair use factor, one of the most important factors in fair use analysis. The Ninth Circuit rejected the lower court’s finding that Wofy’s use “aligned with criticism, comment, news reporting, teaching . . . , scholarship, or research,” and instead construed the use in the most simplistic terms: “The ‘use’ at issue is . . . the reproduction of copyrighted photographs in a book offered for sale.” So, the Ninth Circuit said, the use was both commercial and non-transformative.

That kind of superficial analysis of the purpose and character of Wofsy’s use is not sufficient in fair use analysis. While it is true that Wofsy copied the photographs for use in a book offered for sale, at that high level of abstraction, virtually any unauthorized use of images in a book offered for sale would fail this version of the factor one analysis. Such an approach would radically alter commonly accepted understandings of how fair use applies to nonfiction publishing and would upend the market, which relies heavily on fair use to incorporate images in “books offered sale.”

As the Supreme Court recently stated, “in determining whether a use is ‘transformative,’ [a court] must go further and examine the copying’s more specifically described ‘purpose[s]’ and ‘character.” In this case, Wofsy’s purpose in using the images was to create a “systematic and comprehensive illustrated record of Picasso’s paintings,” far more complete than the Zervos Catalogue and with substantial reference information on with substantial cross-reference information to aid scholars in finding other catalogs that include each image, and where each underlying original Picasso may be found. These uses are new and different from the original photographs, enabling scholarship and research, and making them consistent with the Copyright Act’s prototypical examples of fair uses. Had the court interrogated the purpose and character of Wofsy’s use more thoroughly, it would have reached the same conclusion as the district court and found this factor too weighed in favor of fair use.

What comes next?

Given the importance of fair use and free speech to U.S. public policy, and these significant errors in the Ninth Circuit’s decision, last week, Wofsy filed a petition with the Ninth Circuit for rehearing and rehearing en banc. Authors Alliance intends to submit a brief supporting their petition, which we hope will help the court address these errors.