Minow: Disability rights groups are protesting the Amazon decision to allow publishers to opt-out of the text-to-speech function for their copyrighted books.  Yet the feature remains for works that haven't been opted out.  Must users be disabled in order to legally use the feature?
 
Von Lohmann: No, copyright leaves us all free to use our digital devices to "read aloud" to us. Despite the misleading statements of the Author's Guild, you don't violate copyright law when you have your Kindle "read aloud"  to you.  Copyright law gives copyright owners certain limited rights, including the right to make copies, perform a work publicly (like showing a movie in a theater), or make a derivative work (like writing a screenplay from a novel).

When you have a Kindle (or your laptop) "read a book aloud," you are not "publicly performing" it -- if anything, it's a *private* performance. And no additional "copy" of the work is being made (except perhaps in the computer's memory, and recent cases suggest that those kinds of transitory digital copies don't count for copyright purposes). Finally, simply reading the work aloud does not create a "derivative work" -- courts generally require that a derivative work contain original, copyrightable expression, something that should require more than simply reading the text aloud.

So I don't think there is anything about your right to have a computer "read aloud" to you that depends on whether or not you are disabled. 

In my view, there is just no copyright infringement going on here in the first place.

Minow: What defines a public performance?

Von Lohmann: Where we're talking about a performance in a real place (as opposed to a transmission), the statute defines "public performance" this way:  "to perform or display [a copyrighted work] at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered."

I don't imagine many Kindles will be used to "read aloud" to an auditorium, so this shouldn't apply to most Kindle users.

The real problem here is that Amazon needs a license in order to make digital copies of books and to transmit them to your Kindle. So the copyright owners can simply force Amazon to limit the "read aloud" feature as part of their license agreements with Amazon. In light of this, it's not surprising that Amazon has decided to let the copyright owner decide whether "read aloud" will be enabled for any particular title.

It's worth noting that device makers that are not also in the business of disseminating digital copies would not be as vulnerable to pressure from the book publishers -- and that's why I imagine that the future of "read aloud" functionality for the disabled and non-disabled like will be on laptops and e-book readers other than Kindle.

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Fred von Lohmann is a senior staff attorney with the Electronic Frontier Foundation, specializing in intellectual property matters. In that role, he has represented programmers, technology innovators, and individuals in a variety of copyright and trademark litigation, including MGM v.Grokster, decided by the Supreme Court in 2005. Fred has an A.B. from Stanford University and a J.D. from Stanford Law School.

For background, see Jonathan Pink interviews: District Court Invalidates Portion of Copyright Act as Unconstitutional; Holds State University and Employee Immune From Claim for Copyright Infringement (April 15, 2008) and Follow up questions on state university copyright immunity case - Marketing Information Masters v. Trustees of the California State University (April 23, 2008)

Minow: Can you tell us about the settlement in the Marketing Information Masters case?

Pink:  Sure. The parties ultimately settled for $15K.  The settlement was negotiated by my former partner because I moved firms just after filing the final motion that led to the court knocking out nearly everything that remained after we invalidated Section 511 of the Copyright Act.  I had given the school a really low rate at my old firm, and unfortunately I could not keep them at that rate after the move, so I had to hand the case off.  Nonetheless, I teed it up for settlement before I left by obtaining the court-ordered dismissal of nearly every claim, and by limiting plaintiff's possible win to about $5,000.  Even though the final settlement was 3X that number, and I think the school over paid, my client wanted to be done with the law suit and what they paid in settlement they saved in fees. Overall, still a good result.

Minow: Why such a low settlement?

Pink: Ultimately, the reason the settlement was so low all tracks back to the ruling you first wrote about, and then a follow up motion we filed that knocked out still more claims.  That is, first we invalidated the plaintiff's right to sue a state university for copyright infringement and assorted other claims, then we drastically whittled down the claims this plaintiff asserted against Professor Rauch .  After that, the facts in this case simply did not support big damages.  We were able to show that plaintiff never made more than $15,000 when it previously sold its report to the school, and it didn't lose the sale of report at issue because the plaintiff had refused to prepare that report for the school unless they were paid a lot more money.  Bottom line was that I thought we could have shown almost no damages, so we made a statutory offer of about $5000.  When the plaintiff failed to accept that offer, he was stuck because, unless he was able win more than that at trial, he would have ended up paying our attorneys fees.  It was a gamble, but I thought we were holding the better hand.  Although I wasn't involved in the final settlement talks because I moved firms, I understand that these tactics - and my former partner's negotiating skills - allowed the client to close the case for nearly nothing.

Minow: Now here's the key question. Can individual professors be held liable for copyright infringement even when they follow university copyright policies?

Pink:  That is the key question, but because this case never went to trial, we can't answer it with certainty.  The qualified answer is probably not, but it will be a question of fact as to whether the professor followed the university's copyright policies.  In this case, the facts giving rise to the claim for infringement arose out of the conduct of an intern who was a visiting foreign student.  The professor never knew that the student had copied text, and moreover, went of his way to correct that once it was brought to his attention.  Of course, there is an argument that he should have known by more closely supervising the work.  So did he follow the copyright policy of the university sufficiently to avoid liability?   We don't know.  But it was worth $15K not to put that question to the test.

===========

Jonathan Pink is a member of the Intellectual Property Group at Bryan Cave , LLP.  His practice focuses on high stakes copyright, trademark, trade secret and patent litigation.  He can be reached at jonathan.pink@bryancave.com

New perspective on the proposed Google Book Search Settlement Agreement from Mimi Calter, Stanford University Libraries at:

http://fairuse.stanford.edu/commentary_and_analysis/2009_02_calter_google_settlement.html

The Stanford Copyright & Fair Use page just added a new tool to its Charts and Tools page, the "Section 108 Spinner."

Minow: Tell us about the new Section 108 spinner. How does it work and what is its purpose?

Brewer: The "Section 108 Spinner" was actually the first tool we created, but because at that time the Section 108 study group had still not released their findings, we held off on releasing this tool and instead developed and released the "Digital Copyright Slider" first.  Once it seemed clear that Section 108 was not going to change any time soon, we decided to go ahead and release the Spinner. The Spinner is focused more on educating and serving the needs of librarians, library staff and archivists.  Basically it is there to help them determine when a reproduction of a copyrighted work would be covered by Section 108, the Library and Archives exemption in US Copyright Law.  We are focused on promoting the online tool, but we do have some copies of the print tool that we're handing out at conferences or other events.  If we hear from people that having access to the print tool would be valuable for their institutions (for their staff in ILL, Special Collections, Collection Management, Public Services, etc.), we might consider making the print tool more broadly available as well.

Minow: Do you have anything else up your sleeve?

Brewer: We've got two more tools in development.  One is a "Fair Use Evaluator" which will guide users through the process of making fair use evaluations.  The tool collects the evidence and reasoning behind the justification provided by the user, and then provides this information back to them in a nicely formatted, time stamped PDF file for their records.  Because Section 504(c) of the US Copyright Code affords some legal protection from statutory damages for those who can show that they made a good faith evaluation of their use and had reasonable grounds for believing it was fair, we feel this feature could be especially valuable.  The second is an Educational Exemptions tool that will help instructors determine whether or not their use of a copyrighted work falls under Section 110 and 110(2) [the "face to face" teaching exemption and the TEACH Act], which allow for educational uses of copyrighted works without the permission of the copyright holder under certain circumstances. We've found that there is a lot of confusion out there concerning this portion of the law, so we thought an easy to use online tool might help. This tool can also collect and publish, in PDF format, the circumstances of the use provided by the user.  We hope to have these two tools out by ALA Annual in July.

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Michael Brewer is Team Leader for Undergraduate Services, University of Arizona Library and a member of the American Library Association Office for Information Technology Policy Copyright Advisory Subcommittee

Here's a quick interview with Kenneth Crews, who prepared the World Intellectual Property Organization's Study on Copyright Limitations and Exceptions for Libraries and Archives for its Seventeenth Session in Geneva, November 3 to 7, 2008.

Minow:  What sparked your interest in studying library exceptions to copyright law around the world?

Crews: I was invited by the World Intellectual Property Organization to undertake this study.  I had the pleasure of sharing a program in the United Arab Emirates with an official from WIPO, and she put in the recommendation that I do the project.  I had long been interested in the issues.  They are central to much of my work for libraries and universities, and I have written about the U.S. library provision in some of my publications.  The chance to do a major worldwide study was an invitation I was quick to accept.

Minow: How do the United States exceptions for libraries compare to other countries?

Crews: The U.S. statute on library issues is Section 108 of the U.S. Copyright Act.  Like the statutes from most countries, it focuses on the terms and conditions under which a library may make copies of a work for a user's private study, and copies for preservation or replacement of lost or damaged works in the library collections.  Those issues are the most common topics of the statutes from all parts of the world.  The U.S. law also includes a provision on copies for interlibrary loans, and not many countries have addressed that issue.

On the other hand, the U.S. law is distinctive in many ways.  On the issue of preservation and replacement, for example, the law allows up to three copies, and it explicitly permits digital reproductions.  Some countries explicitly permit digital technologies, other countries do not mention specific format, leaving the matter open to debate.  Yet other countries clearly limit library copying to reprographic copies that are not digital.  Interestingly, two other countries have modeled their statute on the U.S. language of Section 108: Liberia and South Africa.  However, both of those countries used the form of the statute as we enacted it in 1978.  The U.S. added the language about digital copying in 1998, but neither of the other countries adopted that change.

Minow:  Did you find any surprises when you were conducting your study?

Crews:  I think I was surprised at nearly every point in the study.  The most interesting finding has been the trends in statutory language.  The U.S. language influenced only two other countries.  By contrast, the United Kingdom has a relatively elaborate statute, and one can see the influence of that model in the shape of the laws in many former U.K. colonies, such as Australia, New Zealand, Singapore, and elsewhere.  In fact, the U.S., being also a former colony, vaguely follows the U.K. model.

I could see other trends.  For example, the European Union issued a directive in 2001 that mentioned library exceptions, and as a result, most EU countries have addressed the issues in a similar manner.  I could also see a pattern of countries in Africa that have adopted a simple and terse library statute that is flexible and generally free of the detail embodied in the U.S. or U.K. examples.  Finally, I found geographical groupings of countries that have no library copyright statute at all.  Clearly, countries seem to be learning from one another, often from their neighbors, when they make decisions about the exact shape of copyright law.

Minow: Thanks for talking with us today.

Kenneth Crews is Director of the Copyright Advisory Office, Columbia University.
Mary Minow is the content editor for the Stanford Copyright and Fair Use website.

The Copyright Office has posted the 19 comments it received (Due Dec. 2) this round concerning the Exemptions to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies. Mailed submissions will be added to the site later.

The Library Copyright Alliance and Music Library Association recommended a proposed class of audiovisual works included in a library of a college or university, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by professors.

They note that in the last round, a narrow exemption was granted for audiovisual works included in the educational library of a college or university's film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.

This argue that the exemption should be broadened to apply to audiovisual works included in any college or university library, not just the library of the media studies department. Second, it should apply to classroom uses by instructors in all subjects, not just media studies or film professors.  For example, an English professor teaching MacBeth should be able to put together clips of a scene from various productions.

The comments respond to a Notice of Inquiry to identify proposed classes of works by the Copyright Office published in the Federal Register Oct. 6, 2008.  Comments on those proposed classes are due February 2, 2009.

-again, thanks Cicely Wilson for the pointer.

Larry Lessig points out that the Obama team is now using a the freest creative commons license on its change.gov site.  This meshes well with the principles of open government, though it doesn't go so far as to dedicate the content to the public domain.

Hat tip to Cicely Wilson.

You can watch Larry Lessig's interview on Charlie Rose 11/21/08 in full or in clips Larry Lessig (full segment), Larry Lessig (clips). Matt Rutherford summarizes the show at TechCrunch.

RDR Books, represented by Anthony Falzone of Stanford Law School's Center for Internet and Society, has appealed their case to the United States Court of Appeals for the Second Circuit.

Anthony Falzone writes about the court's decision to stop publication of The Harry Potter Lexicon, ruling against Fair Use. All is not over. He writes:

Finally, remember that avada kedavra -- the killing curse -- is not always fatal. One wizard survived it. Three times. And it was he who cast the spell (and won't be named here) that ultimately suffered for it. Maybe someday the Lexicon will be known as The Book That Lived.

Here is Stanford's offical press release:

STANFORD, Calif., September 8, 2008-- Stanford Law School's Fair Use Project has released the following statement on behalf of RDR Books and its counsel regarding today's decision on Warner Bros. Entertainment Inc. et al v. RDR Books et al issued by U.S. District Judge Robert B. Patterson:

"We are encouraged by the fact that the Court recognized that as a general matter authors do not have the right to stop the publication of reference guides and companion books about literary works. As for the Lexicon, we are obviously disappointed with the result, and RDR Books is considering all of its options, including an appeal."

Court decision and filings here at Justia: Warner Bros. Entertainment Inc. et al v. RDR Books et al