1. Write a guest review. From time to time, we post guest reviews of books that people have loved or hated. Submit your guest review here.
2. If you are an unpublished author, you can submit a first page post.  These are posted on Saturday AM.
3. If you are a debut print author, you can fill out this questionnaire here.  These post on Wednesdays at 10 AM so long as we have the content.  We are taking late 2011 publications and forward.
4. If you are a reader, recommend a mini excerpt from an author. Submit your recommendation here.  These recommendations will be posted on Saturday at noon with the excerpt provided by the author.  We’ll be posting one of these on Saturday.  The idea behind this is that we will be helping readers discover new books.

If you have other ideas on contributing, email jane @ dearauthor.com

Corporations don’t actually need SOPA or PIPA, two internet bills that were killed by Congress after an enormous outcry by the public. The bills allowed individuals and corporations to shut down internet sites based on unverified complaints of infringement and piracy. But according to Demand Progress, SOPA and PIPA are taking place without bills but with the cooperation of ISPs.

The details are fuzzy, but the head of the Recording Industry Association of America’s bragged this week that ISPs will start policing copyright by July of this year. Here’s RT’s take:

Some of the biggest Internet service providers in America plan to adopt policies that will punish customers for copyright infringement, and one of the top trade groups in the music biz announced this week that it could begin as soon as this summer….

RIAA CEO Cary Sherman was one of the guest speakers among a New York panel this week and he confirmed that, at this rate, some of the most powerful Internet providers in America should have their new policies on the books by July 12, 2012.

I can’t wait until Disney gets Etsy and Ebay taken down for the unauthorized sale of unlicensed goods.

The majority of the buyers of the nook are women between the ages of 25 and 40.

She noted that at the moment “over 70 percent” of buyers of the Nook tablet are women aged between 25 and 45. They live within 15 minutes of a B&N store and often have kids. “When you go in, you can see kids running around loose in the store,” she said, adding that the stores have special, short tables for those little ones to try out apps.

Still, nook sales are lagging behind accounting for 3.5% of the tablet market as compared to the 16.8% owned by Kindle Fire and nearly 60% occupied by the iPad. Frankly I am surprised that the iPad isn’t 80%.

There is not much other news in publishing these days other than THAT book so we’ll just close for the day. Cheers

Related posts:

1. Wednesday Midday News: Nookcolor
2. Wednesday Midday Links: JA Konrath Posts a Must Read Article and Dear Author Has Neat News
3. Wednesday Midday News: Update on the Agony/Ecstasy Anthology

Kate Rothwell, Someone to Cherish:

The death of Callie Scott’s fashionable father left her with nothing—except an inquisitive mind not even her grandmother’s puritanical upbringing could quash. An adventurous spirit doesn’t get her much in New York City, however, except an abysmal position as a ladies maid.

Things are looking up when she lands a trial job in a “special” library. Her benefactor’s offer of wine before noon should have signaled something amiss—not to mention the heated text she’s asked to translate. The more she reads, the more wine she needs to cool her blush.

Detective Cutter can’t quite place the tipsy young woman he encounters in a notorious brothel, but when she plants a dizzying kiss on his lips, he’s sure she doesn’t belong there. The resulting scandal of the police raid leaves Callie on the street, and Cutter feels responsible for her welfare.

Despite the cruel knowledge that he will never be part of her world, Cutter impulsively offers her a job in his home, where she turns out to possess more than the face of an angel. She has an irresistible, innocent sensuality—and an insatiable curiosity that could bring her one step too close to a murderer.

versus Bad Luck Loves Me:

A full-length gaslight historical romance set in 1884 New York City.

Innocent Callie Scott lived a sheltered life until she is trapped in a raid on a house of ill-repute. That’s only the start of her run of bad-luck. Two days later, she must turn to help from the same detective who has already witnessed her at her worst: tipsy and behaving like a fool. Officer Cutter doesn’t need the complication of a well-bred innocent in his life, but he still finds himself offering her a job. He discovers he must now act as protector to the same young lady he desires–and who wants him.

Rebecca Abbott Miller, Save Me:

There was nothing exciting about Crossdale, North Carolina. For Hannah Doherty, that was a good thing. After twenty-one years of unpredictability, sadness and disappointment, she needed boring. A serious illness kept her close to home, and she believed that’s where she would live and die — alone in that small town.

Max Fitzgerald was living a dream as a member of the hottest “boyband” in the history of the world. He had it all, including a hole in his heart that he couldn’t fill with fame, fortune, women and parties.

When Max finds himself stranded in Crossdale, it’s the beginning of an adventure that neither he or Hannah are prepared for.

Can true love grow from a one night stand between strangers? And will it be enough to save them form the forces that threaten to tear them apart?

The Quintessential Series Continues…

versus A New Love:

Out of Control… There was nothing exciting about Crossdale, North Carolina. For Hannah Doherty, that was a good thing. After twenty-one years of unpredictability, sadness and disappointment, she needed boring. A serious illness kept her close to home, and she believed that’s where she would live and die — alone in that small town.

Max Fitzgerald was living a dream as a member of the hottest “boyband” in the history of the world. He had it all, including a hole in his heart that he couldn’t fill with fame, fortune, women and parties.

When Max finds himself stranded in Crossdale, it’s the beginning of an adventure that neither he or Hannah are prepared for.

You get the picture.  There are various author names, but the name of the editor “Kevin Peters” appears to repeat. I’d recommend any self published author (because those appear to be the target) check this out.

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In good news, there are a couple of really good deals.

• Fade to Midnight by Shannon McKenna * $0.99 * A | BN | K | S
• Standing in the Shadows by Shannon McKenna * $0.99 * A | BN | K | S
• Out of Control by Shannon McKenna * $0.99 * A | BN | K | S
• Edge of Midnight by Shannon McKenna * $0.99 * A | BN | K | S

Robyn Carr’s first four Virgin River books have been released in a bundle. Amazon has the four books priced at $8.83 and BN at $9.98.  At Fictionwise the price is $ 19.95 | $16.96 (club) and there is a 60% off coupon code (021012) for Fictionwise. At Harlequin, the price is $17.96. You can use coupon code SAVE10AFFO at Checkout Ebooks only, until 3/31/2012. for 10% off.  Amazon | BN | Sony | Kobo | HQN | All Romance eBooks | Fictionwise

Related posts:

1. Wednesday News and Deals: HarperCollins Sues OpenRoad for Infringement
2. Friday Links of News & Deals: Amazon the Bully, Readers in need of help (me), and How to get an ebook refund
3. Monday News and Deals:

In an email, Nathalie Suellen, the artist, shared she was originally contacted by writer LK Rigel about the license for Suellen’s original artwork ‘City of Angels’ which was created in 2009.  The license was sold to Rigel and Rigel used it on her book  ”Spiderwork.”  HarperCollins contacted the artist in May 2011.  The company offered her 4,000 dollars (a very normal value offered for cover art) but knew that the art had been sold to another author.

The artist refused because the cover art had already been used on a book and she didn’t think it was right for the same cover art to grace more than one book.   Suellen offered to create another image, including one with the same model but eventually the parties could not come to an agreement.  Suellen had no further contact with HC and thought the matter had been dropped.  (Read more at Suellen’s site)  Then the “Bewitching” cover appeared.  Suellen contacted HC and received no response.

I emailed HC and also have not yet received a response.

This is a debacle and it makes the author of “Bewitching” look sad. Witness her facebook page about the input she had on her cover (this entry has since been deleted but a page on her livejournal is still active).

Llike Kendra has that purple streak in her hair and the black lipstick because I said that she needed something to make it clear she wasn’t just a normal girl heading for the prom. And I suggested the crow. But no, authors do not design their covers.

Awkward.

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Having said that, the cover of Katie MacAlister’s book appeared to be lifted from a photograph and hasn’t been changed. Donna Ricci posted an overlay of the cover on top of the photograph to show the similarities.

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Then there is this cover art from Dreamspinner Press (and here is a link to an overlay):

I’m not very familiar with art and copyright.  Recently there was a lawsuit by tattoo artist who sued Warner Brothers for the unlawful copying of the tattoo design created specifically for Mike Tyson.  It may well be that all these covers are within the rules of copyright because they aren’t actual copies, but pieces inspired by the original.  If it was the written word, I think most people would call this plagiarism.   The question is whether publishers want to blur the lines for cover art that seem to be sacrosanct for the written word.

Hopefully HarperCollins and their amazing art department will come up with something original and honor the artist’s original refusal.

Related posts:

1. Thursday Midday Links: Pubs Use POD for Backlist Titles
2. Thursday Midday Links: Thank God It’s October
3. Thursday Midday Links: Open Letter to Loretta Chase

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I feel a little awkward about transitioning into books after this but this post is about news and books. BEA starts today and Richard Curtis of eReads leaked a seismic announcement last night that is setting BEA aflame. Larry Kirshbaum, a former CEO of Time-Warner Book Group (now known as Hachette) is going to run Amazon’s New York publishing office beginning July 5, 2011. Kirshbaum left Time-Warner and formed his own agenting firm which he has run for several years. Now, he is back on the publisher side of things. Amazon NYC plans to publish everything from literary fiction to commercial fiction to non fiction. More hires to come.

This has serious ramifications. My first thought is who else is Amazon NYC going to poach and how will they change the publishing culture? Will there be advances? How fast will they get a book to market? What kind of focus will be on the print side?

Joe Konrath, self publishing guru and Amazon fan, has blogged about his recent troubles getting his soon to be published print book with Amazon’s mystery imprint into brick and mortar retailers. Indie booksellers, who believe that Amazon is in large part responsible for their demise, are threatening to boycott him. Further, it is unlikely that Amazon’s competitors like Walmart, Borders, and Barnes and Noble are going to carry his books.

Larry Kirshbaum, if he intends for Amazon to have a print presence, will have to address these issues.

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It’s nearing a new release period and thus we’ve got some resources to help craft your TBR list. There is the coming soon catalog from Dear Author. As well as the open thread for authors (where authors post their new releases) and for readers.

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S. Victor Whitmill is a tattoo artist. He designed the tribal tattoo that is on Mike Tyson and replicated in the movie The Hangover Part II. Mr. Whitmall is claiming that the tattoo is subject to copyright and has sued Warner Brothers to enjoin them from using the tattoo without his permission.

If a tattoo clearly violates copyright — say, exactly reproduces a Keith Haring drawing or an Annie Leibovitz photograph without permission — could a court order it removed?

The case gets more serious, according to Christopher A. Harkins, an expert on copyright and patents who has written the definitive law review article on the subject, when someone tries to profit from the copying — by, for instance, selling photographs of the infringing tattoos.

Obviously this has all sorts of implications, the least of which is whether it will impact the use of tattoos on romance book covers.

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Eric Hellman blogged about Hachette’s views about its future business.

Massive companies, Amazon, Apple, Google, and in fact last year was a tipping point for our company, because 50% of our net revenues were made through outlets that were not invested in us. Companies like Walmart and Costco and all the others you can think of, not directly invested in our business. And I think that was a big moment and it means you’re having to deal with people who think about books in a way totally different from the way Barnes and Nobles regards books.

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Kobo has a brand new eink reader. It’s basically like the Sony Reader: touchscreen and Pearl eInk with a much faster processor. The best part? It’s only $129.99.

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This was a fascinating! report. According to data compiled by Dan Lubart of eBook MarketView, romance readers have shifted their purchases away from Agency priced books and toward lower priced books. Even Harlequin, who is not an Agency publisher, is seeing a reduction in market share of their higher end books.

Interestingly Angela James at Tools of Change told the TOC crowd that Carina Press had reduced the top of end pricing for their books from $6.99 to $5.99 because no one (or few) were buying the $6.99 priced books.

I’m not sure what to make of this data. Are romance readers on the front of a trend here? They were one of the first group of readers to really embrace digital books and digital first publishing or is this a genre specific phenomenon? In other words, romance readers are voracious readers and consume multiple books a week. In the digital world, there is no used market or resale market nor can they easily trade or share books. Thus, to feed their habit, romance readers are turning to lower priced goods. This behavior is not likely to be replicated in other genres.

Update: On Twitter, I saw that 66% of the power ebook buyers are women and they buy primarily romance with a household income of $77,000 or above.

Related posts:

1. Monday Midday Links: How the King James Bible Has Shaped Our Language
2. Monday Midday Links: Digital is killing print and everyone wants a piece of that pie
3. Monday Midday Links: Best Social Media Story Yet

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If you are a Starbucks fan, you might be interested in a new Starbucks Digital Venture that presents a digital network for customers containing movies, books, etc.

A feature called the Bookish Reading Club offers a rotating selection of digital titles from publishers Hachette Book Group, HarperCollins, Penguin Group and Simon & Schuster. People can read the books -’ sometimes the entire text, sometimes an excerpt -’ in their browser via an HTML5 reader while on the network.

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Borders presents its own self publishing service for ebooks. BN readers complain about the influx of BN’s self publishing ebooks through PubIt.

Please can we have a search function that allows us to filter out Pubit books if we wish? I have been using the new releases tab in ebooks to browse and find mystery books I want to buy – but I am finding that I now get floods of Pubit books. Many of these are not even classified sensibly – should “Age of Information” really be showing up in the mystery/thriller category or Jane Austen books in science fiction?

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Forbes has followed up on the FTC Guidelines for bloggers and has found few cases being investigated.   Of course, this doesn’t mean that bloggers should forget that the guidelines exist.

"Not everyone's going to obey the law," Engle adds. "People will always use shills. Where we see actions we think are egregious, we'll bring action."

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Dorchester is apparently having problems getting books for which it does not hold the rights taken off of online retailers.   Authors and at least one agent have sent letters regarding what they view to be the unlawful sale (and in some cases giving away) books that Dorchester no longer holds the rights for and received no response from Dorchester.   The timelines is very sad but basically a month of sales/giveaways has occurred for at least two former Dorchester authors: Jana DeLeon and Leslie Langtry.   Fortunately for those authors, the copyright law affords them the highest civil protection: Strict liability, treble damages, and attorneys’ fees.   Dorchester might not have any money but if Amazon, BN, etc are ignoring DMCA takedown notices, a case could be made against those two healthy companies.

In the comments, Chris Keeslar shows up and wags the angry finger at Sarah for failing to follow up with Dorchester and him for comment.   I think Keeslar’s responses should be directed toward the authors who claim over a month of silence and non response.   When you buy a Dorchester book, you may want to think about what is going on there.

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Hard Case Crime used to be with Dorchester but with the changes (going digital and then trade print later), Hard Case looked for a new publisher and distributor.   Titan Publishing is a UK based publishing and it has plans to acquire all existing stock of the Hard Case Crime and will be publishing future books under that imprint.

Related posts:

1. Thursday Midday Links: Dorchester Dis-invited from RWA
2. Tuesday Midday Links: Publishers still thinking not thinking about readers
3. Thursday Midday Links: Is Google Book Settlement Dead?

Genre fiction rides a thin line between consistent recognizability and appealing freshness. Often referred to as "a narrative archetype," the form of genre fiction is often denigrated as "formulaic" and derivative (Pam Regis, A Natural History of The Romance Novel, 23). In truth, there has to be something fundamental and formalistic that binds a group of stories together into one distinct genre. And in Romance, many books consciously and intentionally echo other books and stories – from Pride and Prejudice to Jane Eyre and Wuthering Heights, to Cinderella, Snow White, Romeo and Juliet, the novels of Georgette Heyer, Dracula, etc.

These intertextual references and conversations create a certain formalistic consistency in the genre, a guarantee for the reader who targets that genre that they will recognize the structure of the narrative enough to expect a satisfying read. Jane and I were talking the other day about how some authors tell basically the same story over and over, but they do it in such a way that each book is a desirable read. Then there are authors whose books seem quite similar to books from other authors, but readers don't respond the same way to them.

I've heard people who don't read Romance insist that all the books are the same. In this statement lies an implicit criticism that there is little originality in the genre. And to some degree, the appeal of a genre like Romance (or Mystery, Sci Fi, etc.) is a certain reassuring repetition of central archetypes, elements, themes, or tropes. Further, I think genre books are often "coded" in a certain way for their readers, meaning that when you encounter a big, dark, cop hero, you expect an alpha taming story (i.e. the beauty and the beast retelling). An impoverished, put upon, but sweet heroine who falls for the rich, remote nobleman evokes Cinderella. A red-headed heroine is often code for "feisty" (this is where the coding dovetails with genre shortcuts), and historical settings often translate to virgin heroine. I would argue that this coding is part of the pleasure and satisfaction genre readers derive when they seek out genre books.

In fact, I’d go so far as to argue that there are no more original stories, that everything written today is a sort of riff on previous stories — on poems, plays, myths, ancient histories, etc. — and that even when the riff isn’t conscious that it’s there on a more abstract level of creative osmosis. I remember when I was really new to the genre and I read a Danelle Harmon book, impressed with what read like an incredibly original story to me. I asked the friend who was filling out my Romance education, and she scoffed a bit, assuring me that no, this was not, by any stretch, an original storyline. Now, years later, I get it. It doesn’t reduce the pleasure I get in reading a book that is new to me, but it makes me alert to the way its elements circulate through the creative stratosphere.

So where is the originality in the genre – what is it that gives genre books their appealing freshness?

I'm interested in everyone's opinion on this question, but my money is on the author's voice being the source of a book's originality.

Without question there is a tension in any genre between homogeneity and innovation. Books that push the envelope are often reviled and embraced by different groups of readers, some of whom feel betrayed by what they perceive to be genre-busting, others of whom prefer their books on the edge. Break out books are often those that seem to mesh certain provocative elements with genre familiarity in a way that captures the loyalty of readers in both camps, and then we see the endless parade of books that strive to recreate that same magic.

But that magic is not replicable, because what made that first book work was not just the elements the author used but the way she told the story – her storytelling voice. This is why you can't copyright character types and plot elements, and why plagiarism lies in the actual words used. Can you imagine what would happen to genre fiction is authors could copyright their characters, their plot structure, and even those phrases we see move from book to book, author to author? Every book written would narrow the options for every other book to follow. It would, in short, be precisely the opposite of what gives genre fiction its durable longevity – namely the wonderful conversations happening between books and the ways those conversations continually take off in subtly different directions. Ideally, every author brings something unique to those conversations, introducing a new spin, a new element, a new view, a new insight. Whether slight or substantial, these different voices are, for me, the force of originality in the genre.

When I hear authors fret about how readers or publishers expect certain things and shun others, I think we need to remember that some of the most beloved books in the genre are themselves riffs on classic stories or myths. Authors like Lisa Kleypas, Jo Goodman, Jo Bourne, Susan Elizabeth Phillips, and Jill Shalvis (a very few examples) have the ability to make a well-worn story feel new because of a very distinct authorial voice. I've been reading some of Michelle Reid's Harlequin books lately, and I am struck with how compelling and fresh they read to me, despite familiar category elements and serviceable (at most) prose. One of my greatest pleasures as a reader, in fact, is reading the book that makes me look at something familiar and see it differently. I often liken genre fiction to a sonnet for that reason. Narrow formal limits do not restrict creativity and originality, although a flat, derivative, uncommitted storytelling voice can kill any book by boring me right out of the story.

So when we talk about originality in genre fiction, I think we need to focus more on voice and develop a better vocabulary for talking about it. I realize that the alchemical quality of the reader's "hearing" that voice as a siren's call is less tangible and more difficult to discuss in crisp specifics, but I suspect that it's voice most readers resonate to, even if they cannot articulate that clearly. The way voice is intertwined with plot, character, and theme creates another level of difficulty in distinguishing it, but I still don't think it's impossible to talk about in a more direct, focused way.

Nothing, for me, makes or breaks a book the way the storytelling voice does. But what about you? How would you define originality in the genre and do you think Romance is becoming too homogenous (or too diverse, for that matter)?

Related posts:

1. Genre Loyalty Does Not Equal Genre Contentment
2. Discourteous Discourse & Why Erotica Is Killing the Romance Genre
3. Does the romance genre need to be more expansive?

On Mike Cane’s blog, Mike was bemoaning (reviling?) Adobe Digital Editions which is the software that encrypts all epubs, the so called industry standard.

And then add on top of all of that pain, the torment of requiring Adobe Digital Editions for DRM! It turned something simple -’ reading -’ into a process requiring a minimum set of technical skills. That would be like requiring people to pass a test about the Dewey Decimal System before they could use a public library!

This is a sad and true statement. Even within the DA crew, there are ADE problems. I don’t know if Jayne ever resolved hers even though she had me to help her (I failed to resolve her problem!). Software encryption or locks which ties your access to a digital book to a device or a software platform (like the nook or the Kindle) is called DRM or digital rights management.   I get constant questions via email about how someone has lost access to their digital books.   Remember the recent Fictionwise fiasco when agency pricing came along and   Fictionwise had to pull content people had already purchased and downloaded?

The DMCA prevented circumvention although there were some (like me) who felt that stripping DRM was appropriate for personal purposes.

In the past few days, however, there have been some real shifts in the law on the issue of circumventing (bypassing) DRM.   First, and arguably most important was the issuing of final rules by the Libarian of Congress (LOC) setting forth exemptions to the DMCA based on the recommendations of the Register of Copyrights.   Now, how can the LOC do this?   Because the DMCA specifically says that every three years, the Librarian of Congress can issue exemptions to the anti circumvention rules of the DMCA.

In the past, the exemptions have been paltry although in 2006, the LOC issued this exemption:

4. Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book's read-aloud function or of screen readers that render the text into a specialized format.

This exemption was renewed in 2010 over the recommendation of the Register of the Copyright Office and good until the next hearing period which will begin in two years.   Exemptions are based on a class of work (literary works in ebook format) not the user. Therefore, one doesn’t need to be disabled in order to avail herself of the protection afforded by the exemption.

I’ve seen at least one person suggest that if there is an audio version, even at a higher cost, that the DMCA exemption does not apply but the class of work identified here are literary works distributed in ebook format thus, in my interpretation of this act, an audiobook is not a literary work distributed in ebook format. Audiobooks are generally treated as a sound recording and subject to different provisions of the Copyright Act.   I’m open to being swayed to the other side on this issue.

In summary, I think the LOC says that a user can strip the DRM if the digital book’s encryption

• a) prevents user from enabling the book’s read aloud function OR
• b) prevents screen readers from rendering the text into a specialized form

and there is no other text version available, even at a higher cost, that would permit these features.

It should be noted that the LOC included this exemption over the recommendation of the Register who felt that the proponents of the exemption failed to do a very good job of convincing her that the exemptions were necessary.

More surprising than the renewal of the ebook stripping exemption is that the LOC says jailbreaking a phone and unlocking it to be used with another carrier is permissible.   Jailbreaking is opening up the software system of a phone to install non authorized apps (my favorites are Activator and Backgrounder). Unlocking is breaking the connection between the phone and the carrier, allowing the consumer to use any carrier.   So you can take your jailbroken and unlocked phone to Cingular or Sprint and have it activated with the government’s approval.

The legal justification for this was, among other things, that the jailbreaking or “the modifications that are made purely for the purpose of such interoperability are fair uses.”   As Ars Technica went on to say, “Make no mistake: this was all about Apple. And Apple lost.”   Apple actually showed up at the hearings and made vociferous arguments against this principle that was advanced by the EFF.   The EFF won big concessions for consumers in this round.

I would have preferred to see the reasoning for the ebook exemption to be broad like the one for jailbreaking and unlocking of an iphone   rather than based on access for disabled individuals but perhaps the court will move where the Copyright Office will not.

On Friday, the Fifth Circuit, a fairly traditional and conservative circuit, ruled that circumventing DRM is not enough to trigger the DMCA. (PDF Link).    Based on questionable reasoning, the Fifth Circuit found that if the DRM doesn’t prevent the infringement itself, then bypassing it for viewing purposes doesn’t trigger the DMCA.   This is a fairly big distinction.   In the LOC case, it is essentially saying, yes, you may be infringing according to the DMCA but I have the power to grant exemptions (like a governor granting a pardon).   But in the  MGE UPS SYSTEMS INC   v.  GE CONSUMER AND INDUSTRIAL INC case,  the court is saying bypassing DRM isn’t enough to trigger the DMCA.

It’s not a violation, the court says, because the DRM has to prevent the infringement or the unauthorized copying.   Bypassing DRM doesn’t necessarily result in infringement, it only opens up viewing or access.

Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA's anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.

In other words, when I download a Kindle file that is protected, I can make and email a dozen copies of that file to my friends or even seed a torrent feed, all without bypassing the DRM.    That’s unlawful infringement.   But if I bypass DRM so that I can have access, then it’s not a violation of DMCA, so long as a copy isn’t created.   Of course, this is only true in the 5th Circuit so I guess to be fully protected right now, I’d have to move to Texas or Louisiana.   What the court decision doesn’t say is whether if I have access and want to strip for format shifting purposes whether that is a violation of the DMCA as you are technically creating a copy.

In neither the case of the DMCA exemptions or the GE case was the creation of the DRM circumvention tools authorized.   This reminds me of the drug stamp tax.   Even though the sale of drugs is illegal, drug dealers (or those who sell illegal drugs) must purchase a drug stamp when taking possession of a controlled substance.   Failure to have the appropriate number of drug stamps on the controlled substance results in its own legal penalty (fines in my state) in addition to the actual prohibited possession and attempt to sell the drugs.   So you can use the DRM circumvention tools but you can’t create them.   (Like you have to have the drug stamp even though you aren’t supposed to be in possession of or selling the drugs).

The next go around for the LOC, however, the issue of exclusives might be a hot topic.   The hearings will take place in two years and that will be the end of Andrew Wylie’s two year exclusive with Amazon.   I would think that the Register and LOC would find that exclusives which tie consumers to one device would be offensive and that interoperability and access would be that much more vital.

The trend, though, does seem toward lessening the restrictions of DMCA.   This doesn’t mean that DRM will be eliminated by publishers.   They are free to included DRM and if they enable the text to speech function, DRM stripping wouldn’t be permitted (except, I guess, in the 5th Circuit).   The reality is, though, one of the easiest ways to kill Amazon’s dominance continues to be disallowing DRM.   DRM allows retailers like Amazon or Barnes and Noble to lock consumers into one device.   Eliminating DRM would allow much more consumer freedom to shop around, allowing other retailers to build robust readerships based on something other than format.

Related posts:

1. I’ve Seen the Vision of the eBook Future via Google and Random House and It Stinks
2. What Is the Future of E Publishing?
3. Liquid Silver Update: LSB – Looking to the Future

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In disturbing news, I came across a copy of Pursuit by Elizabeth Jennings (published by Grand Central, a division of Hachette) selling for $22.99. This surprised me given that Pursuit was a mass market paperback release in 2008. The digital price is listed at $10.99. Again, for a mass market release put out two years ago.

When I mentioned this on Twitter, I was informed that Pocket is doing the same thing. Roxanne St. Claire’s Hit Reply is listed at $21.99 and the digital price is $15.99. Another person sent me the link to Pamela Morsi’s Courting Miss Hattie listing at $19.00 for print and digital. The actual price of the digital is $9.99 as Amazon is allowed to discount Random House books.

All these books have apparently run through the original print runs. In order to keep the books “in print” and not allowing the rights to revert to the authors, publishers are using Print on Demand technology to keep the books in print.

I think that this is just a crazy policy by publishers. For one thing, it pushes readers to the used market. Who is going to buy the POD version of a book at $22 when she can buy a used copy for $3.99? For digital readers, why in the hell would they pay $15.99, $10.99 for a book that sold as mass market. They are better off creating their own digital copy from a used book. Or some may just decide to pirate it.

This type of pricing doesn’t serve the author and it doesn’t serve the reader.

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Congress held hearings on whether the US Postal Service can eliminate Saturday mail service. Amazon claims the lack of Saturday service will adversely affect rural areas while Netflix doesn’t see much of any impact. I love Saturday mail service but eliminating it supposedly will save billions of dollars.

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Harlequin is partnering with Penguin India to bring the Mira imprint to ndia, Bangladesh, Bhutan and Nepal.

Padmanabhan said Penguin-India saw a 'strategic fit with the success of MIRA's list worldwide'.

"The market in India has an ever-growing need for commercial mass market fiction like historical, fantasy, vampire and paranormal romances that are a huge hit worldwide. Indian readers love them too. Anyone looking for a great read, be it in summer or winter, at home or while travelling, is our potential customer,' he said.

I’m kind of fascinated by this cross publisher relationship that is taking place overseas. Is there anything like that in the US or UK?

*******

Laura Miller, of Salon, talks about the up side and down side of increasing amount of self publishing.

Readers themselves rarely complain that there isn’t enough of a selection on Amazon or in their local superstore; they’re more likely to ask for help in narrowing down their choices. So for anyone who has, however briefly, played that reviled gatekeeper role, a darker question arises: What happens once the self-publishing revolution really gets going, when all of those previously rejected manuscripts hit the marketplace, en masse, in print and e-book form, swelling the ranks of 99-cent Kindle and iBook offerings by the millions? Is the public prepared to meet the slush pile?

Readers do complain about the lack of variety and that is one area in which I would hope to see growth but the issue of curation is going to be a big one in the future.

********

Finally, the biggest news of yesterday was YouTube’s win over Viacom. Viacom sued YouTube for copyright infringement and argued that YouTube should be actively policing the content it is hosting in order to p

The judge granted YouTube’s Motion for Summary judgment (which is a legal document saying “we don’t have any real dispute over the facts so decide the legal question before you.” All legal questions are for the judge and all fact questions are for the jury (factfinder)). In the ruling, the judge found that the DMCA protects entities like YouTube who might know that users will upload copyright infringing material so long as YouTube (and like entities) remove the copyright infringing material once notified.

Essentially the judge was upholding the plain language of the DMCA statute.

[Judge] Stanton ruled that YouTube's "mere knowledge" of infringing activity "is not enough."

"To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users' postings infringe a copyright would contravene the structure and operation of the DMCA," the judge wrote.

Stanton ruled that YouTube had no way of knowing whether a video was licensed by the owner, was a "fair use" of the material "or even whether its copyright owner or licensee objects to its posting."

Viacom’s interpretation was that once a company knows that people use it for improper purposes, the company loses its “safe harbor” protection. By looking at extensive legislative history, Judge Stanton determined that Viacom’s interpretation was not consistent with the intent of Congress AND that it would have made the DMCA safe harbor provision meaningless.

Related posts:

1. Monday Midday News Roundup: Dorchester Sells Frontlist and Backlist Titles
2. Thursday Midday Links: New Blog & State of the Day EBook Report
3. Thursday Midday Links: Apple’s iBookstore Pricing Is $9.99 too

I’m a big fan of twitter (@jane_l and @dearauthor folks). One of the best benefits of twitter is that I get to see the links to the hottest news and viral memes as they become part of the internet collective consciousness. This means that when my brother emails me in two months asking me if I have seen a certain YouTube video I have not only seen it but probably retweeted the link a dozen times. A few weeks ago, people were tweeting the link to a remade music video.

On Gawker, there were a number of videos of soldiers dancing. They like Ke$sha:

There was the infamous wedding entrance played to the music of Chris Brown:

This one was recommended on Twitter by Lady Gaga herself:

A North Carolina DJ personality posted his own performance of Beyonce’s “Single Ladies” and when Beyonce toured in Atlanta, she brought him onstage:

You know who seems to like these videos a lot? Authors. I see authors retweet these links all the time. But you know what these are? These are the music equivalent of fan fiction. Now music has different copyright rules than written works (such as the compulsory mechanical license), but the concept here is the same. The composer’s work is being used and set to a different sort of public performance. Yet these videos are lauded, even by the original artist.

The compulsory mechanical license is pretty fascinating and I confess to not understanding all the ins and outs of music copyright. In essence, once a song is released commercially, anyone can re-record it and even sell the re-recording (or cover) of the original so long as the the original melody or lyric isn’t substantially altered and the person covering the original pays the proper royalty or fees. For sales under 2500 copies, the person covering the original pays 9.1c per copy (for songs under five minutes). The publisher (record company) and the composer splits the payment (this is the source of big disagreement between publishers and composers/artists). Each and every sale must contain acknowledgment to the original version.

What if some kind of compulsory license scheme were instituted for fiction? Where fan ficcers would apply for a license with a reasonable application fee of $10 or so? Then for each fan fiction piece sold, the fan ficcer would have to pay an amount to the publisher which would then be split between the publisher and the author? Each fan fiction piece would have to be properly identified as a “cover” of the original. Of course, most all fan fiction is freely available so the amount paid to the publisher for a “free” version v. a “paid” version would have to be completely different.

From an economic standpoint, I don’t see downside for authors. There is nothing about a cover that diminishes my interest in the original. Even this great remake of Beyonce’s Single Ladies made me replay the original version to see the difference:

Some of the videos above even contain direct links for purchase of the original song. In the case of the JK Wedding Dance, the virality of the music video led to “Forever” climbing back onto the music charts, hitting #4 on iTunes. Chris Brown, who had been suffering a public relations nightmare arising out of his beating up his girlfriend Rhianna, actually gained in popularity due to this copyright infringing video. (this caused the couple to set up an ad generating website where they solicit donations for the Sheila Wellstone Institute which aids victims of domestic violence).

The downside of this type of licensing scheme for fiction is twofold. First, someone’s fan fiction writing could outstrip the original works. It could happen. A lot of readers feel authors jumped the shark or took a direction that they didn’t agree with. A talented writer could fulfill that need for a set of readers. The other downside that I can perceive would be authorial loss of control although with a music compulsory license, the cover can’t deviate substantially from the original. What that means, though, I am unsure. (There is probably case law on this but I am not familiar with it). On the whole, though, I think a license of fan fiction fulfills the basic tenets of the original copyright grant which is the balancing of the public’s interest in the advancement of arts and sciences and the original creator’s exclusive right over their writings and discoveries.

What do you think? Feel free to tell me I’m crazy.

Related posts:

1. Wherein Jane Offends Authors Against Fan Fiction
2. Fair Use Part 2: Fan Fiction, Rowling and Cassie Edwards
3. Does Thomas Harris Read His Fan Fiction?

The postcard tins are a great gift item but I don’t have anyone to send snail mail to. Should I start up a prison correspondence?

I’m going to give the notebooks and the address books away on the blog (am keeping the notepads myself). Just as a disclaimer or non disclaimer, I purchased these myself and Harlequin, which does many nice things for Dear Author, did not pay for them or give me any kind of discount.

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Simon & Schuster saw sales increase in the last quarter to $230.4 million which is up 2.4%.   The improvement in sales was offset by “higher write offs of advances for author royalties” which I understand to mean that there were a number of author royalties that ended up being a loss for S&S.   Ebook sales are about 4% which matches that of HarperCollins.   CEO of S&S is disappointed by the fall sales.   Read more at PW.

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Internet users aren’t actually more isolated than not internet users according to PEW.

Instead, researchers found that online participation and mobile phone usage leads to people having larger and more diverse core discussion networks. (Discussion networks are defined as being the places where we can discuss “important matters” with friends and confidants.)

I know I’ve often read comments from readers stating that the internet has allowed them to find other romance readers and that their reading interests have grown and not diminished because of the online romance communities.

***

New Fiction blog notes that the BN prices for ebooks are more expensive, almost uniformly more expensive, than the prices for ebooks at Amazon.   If you buy a lot of books this will add up. I noticed this last week when I was purchasing some backlist titles that the Amazon books were almost $1.00 cheaper than Barnes and Noble except for BN’s promotional pricing.   I did receive an email today from BN proclaiming that it has reduced pricing for over 100,000 books and that it is upping its affiliate program to 8% commission.   I find that the BN affiliate program is difficult to use so I doubt I’ll change.   (I’m far too lazy even for an extra 2%).

***

Jessica, at the Dystel & Goderich blog, notes that online promotion can be effective well past the initial release date and that it can help move beyond publishing’s reliance on the blockbuster model:

Connecting an author with communities of like-minded readers on-line requires about as much virtual legwork as finding these folks in the real world, but especially as traditional media contracts, it’s well worth exploring. On-line promotion does not necessarily rely on a rolodex of producers and editors. Anything that helps move the industry away from the blockbuster model, which makes failures of far too many books, is, in my eyes, welcome.

***

A recent study out of the UK claimed that file sharers represented the largest portion of legitimate music purchasers.   This has flustered media and IFPI, an international music trade group put out a release to counter the study.   Ars Technica notes that few outside the music industry actually believes that file sharing is the main cause of revenue decline including folks at the European Commissioner for Information Society and Media.   However, this has not stopped many countries in engaging in treaty talks about copyright under the guise of stopping counterfeiting.

News of the secret treaty talks leaked earlier this week and present a real shocking list of super restrictive copyrights which seem to be to overturn the fundamental concept upon which our criminal justice system is premised as well as poses unreasonable responsibilities on the shoulders of ISPs which will result in much higher internet costs.    Apparently the secret treaty would like to dispose of fair use ; block internet access; take down websites on accusations (not proof) of infringement; criminalize copyright infringement even when there is no commercial gain; ban any legitimate circumvention (like cracking the DRM so you can read a book on your iPhone as well as your laptop); and so on.   It’s pretty frightening.

On the one hand, I find it outrageous and on the other, I hope it gets passed.   Restrictive copyright helps large corporations and not content creators. Restrictive copyright actually works to chill creation and I can see this ultimately leading to fiction being primarily work for hire.   Copyrights will be too valuable for individual content creators to have them (much like comic books).

See you all over at fanfiction.org, that is unless you’ve watched a Youtube video with a song overlaid on it because then you’re internet will have been cut off.   Actually, there won’t be a Youtube.   Maybe I’ll buy those postcards after all.

Related posts:

1. Friday News Roundup: Positivity in the face of poor quality is cruelty of its own
2. Tuesday News Roundup: Sony & iRex Out With 3G Wireless Readers
3. Wednesday Midday Links RoundUp: Big Changes at Simon & Schuster

Amazon for example, says that people with Kindles now buy 3.1 times as many books as they did before owning the device. That factor is up from 2.7 in December 2008. So a reader who had previously bought eight books from Amazon would now purchase, on average, 24.8 books, a rise from 21.6 books.

We romance readers know that from our own experience. Many of the early adopters of ebooks have been romance readers who buy more books than any subset of readers out there.

The negative takeaway from the Times article was that there was a reader who shared a Kindle account with someone else. She was quoted as thinking she was probably taking advantage of a loophole.

Ms. Englin has linked her Kindle to the Amazon account of some nearby friends, allowing all of them to read books like "The Lost Symbol" at the same time -’ while paying for them only once.

"I read much more, I tend to read faster for some reason, and I read a greater variety of things," said Ms. Englin, adding that this is nearly the same as lending a physical book to friends. "We haven’t really looked closely at Amazon’s terms of service. But I do suspect we are breaking the rules."

This caused some authors to start calling her a thief and trying to shame her. I pointed out that the Kindle Terms of Service allow for up to six devices to be registered to a single account.   A number of authors did not believe Eglin was acting lawfully or ethically:

Ross continued:

• We’re in total agreement. RT @zumayabooks: @JoAnnRoss If you’ve only PAID for 1 copy, you’ve stolen the other 5.
• @NinaPierce She says it’s not stealing. But she’s wrong. I commented on the blog, will see if she allows it and what she says in response.

Ross checked with Amazon:

When you hook up a device to a Kindle account, whether it is an iPhone/iTouch or Kindle, every user of the registered device has the ability to charge books to that account so only those you really, really trust would register a device on the same account.

Then the discussion segued into more general copyright issues.   Elizabeth Burton, a publisher, had this to say:

and this:

The problem here is that the very same law that gives authors a property right to their creative work gives consumers the right of first sale and fair use privileges.   Let me state that again.   The VERY SAME LAW that creates intellectual property for authors gives readers rights too.

Here’s how it works.

• COPYRIGHT LAW   gives a bundle of rights to AUTHORS.
• AUTHORS sell that bundle of rights, including the right of distribution and copying to a PUBLISHER in exchange for money.
• PUBLISHER exercises its purchased rights by making many copies and selling those copies in a few ways including, but not limited to, the following two:

1. A SALE which results in a consumer purchasing the book and gaining the RIGHT OF FIRST SALE and FAIR USE RIGHTS granted by same COPYRIGHT LAW.

2. A LEASE which is bound by the terms of an agreement.

In the Kindle instance, the purchase is of a lease of a book for as long as Amazon deems it appropriate for you to have access to a copy.   The contractual terms between a Kindle owner and Amazon allows for up to six devices registered to an account to simultaneously share that book.   This is not infringement as so many authors (looking at you, Toni Blake, and others) have suggested.   What Amazon is allowed to share with a reader is dependent on the rights that are granted to Amazon by publishers.   Hence the turning off of Text to Speech and conversely, the allowance of 6 simultaneous downloads.

To unapologetically call a reader a THIEF when she is exercising a right granted by Amazon and therefore by the publisher is terrible. It’s an affront to all readers.

No laws are being skirted.   No laws are changed.   Except that readers are being given the shaft.   Because some readers prefer to read digital books, our rights have been erased.   We cannot resell a digital book because no one trusts that we have deleted the originals.   We cannot be allowed to share a book because the fear is that pressing the email button with an attachment being feared we are using it as a copy button.   WE ARE PRESUMED TO BE DIRTY, THIEVING CRIMINALS.   I AM VERY TIRED OF IT.

The default position is that we ebook readers are always engaged in some form of wrongdoing.   We are charged more.   We don’t get the book at the same time.   We are constrained in how we use our books, on what devices we read them on, with whom we can share them.   We are not considered legitimate customers if we do not leave our house and buy a paper copy.

Sharing is a fundamental part of reading.   Sharing is a reader’s way of saying “try this, I think you’ll like it. There is no risk here.” It’s a way of building a relationship with another reader so that the next time you are reading a book, you can say, “get this” and that person will go and buy it, solely on your recommendation.   From one reader to another, there is no greater expression of trust than to buy on another reader’s recommendation.

Sharing is part of creating the reading community. Sharing seeds reading.   It creates and generates more interest in reading. Why is this important? Because the biggest threat to authors’ livelihood is not piracy.   It is not casual sharing.   It is a declining readership.   It is rising rates of illiteracy.   It is alternative forms of entertainment.

I am not arguing that piracy is right. It is not.   But sharing between people on one Kindle account is not piracy and to equate piracy with sharing is incredibly insulting and frustrating.   As an ebook reader, I have given up so many rights.

Thank god for people like Courtney Milan and Tessa Dare who blogged about readers’ rights too.   Discovering what seemed like so many authors ill regard toward sharing, that so many would leap to the conclusion that sharing amongst even six readers is piracy, is so offputting that I am reluctant to foster anyone else’s joy in reading.    If authors want us to respect them and their rights, they need to start respecting us and our rights.

Related posts:

1. Federation of the Blind Pushes Back Against Authors Guild
2. Amazon and Two Sides of the Intellectual Property Coin
3. Author Frequently Asked Questions Regarding Text to Speech Functionality

The North Carolina Literary Festival is starting today with a romance panel scheduled for September 13, at 11:10 am in Hamilton Hall. It is free and open to the public.

Time has an article about romances that is both insulting and positive. I love mainstream articles on romance. The insulting?

Famous for their bodacious bosoms and six-pack abs, they must be toned down in some markets. “We’d be likely to have more modest-looking covers in India,” where, says Hayes, “generally, women are less likely to want to carry around a book that is very explicit.” Not so in the West. “Increasingly, romance fiction is for women who move their hips when they read,” joked a Canadian journalist.

The positive? Harlequin’s revenues are up over 8% this year although some of that is related to the weakening of the Canadian dollar.

Not to be outdone, a columnist for the Guardian in the UK confesses that Mills & Boon books are hard to write, mostly because she appears to despise them and herself for liking MB books.

I am now a little chastened. So I sit down to write. But I find I can’t do the sample chapter and synopsis. I know I am supposed to write about a believable heroine falling in love with a believable hero and having a believable happy ending. This is what the experts have told me; this is what the readers expect. But, to my surprise, I simply cannot do it. I can’t even begin to write a woman I like enough to give a lover to. Begin with myself, you say? How? There is nothing heroic about me. I am bilious and I smoke. I suddenly become convinced that I am too cynical to write this proposal properly and, in the pantheon of Mills & Boon readers, I am not quite sure where this leaves me. Ready to become a 60-book-a-month girl? Or does this self-loathing in itself make me a Mills & Boon heroine? A woman who does not believe herself loveable enough to write a hero for? Nah. Pass the axe.

Silicon Alley Insider notes that Google is losing a number of key employees to other companies. Either Google is no longer the place to be or they just did a superior job of head hunting a few years back (or both). Possibly a third reason is they couldn’t eat Preeti’s food anymore. The chef of Google’s Charlie Cafe got the boot from Top Chef last week.

Making its way around the blogosphere is this opinion piece by Josh Olson who says that saying something positive about a work that is dreadfully bad is its own kind of cruelty.

To make matters worse, this guy (and his girlfriend) had begged me to be honest with him. He was frustrated by the responses he’d gotten from friends, because he felt they were going easy on him, and he wanted real criticism. They never do, of course. What they want is a few tough notes to give the illusion of honesty, and then some pats on the head. What they want–always–is encouragement, even when they shouldn’t get any.
Do you have any idea how hard it is to tell someone that they’ve spent a year wasting their time? Do you know how much blood and sweat goes into that criticism? Because you want to tell the truth, but you want to make absolutely certain that it comes across honestly and without cruelty. I did more rewrites on that fucking e-mail than I did on my last three studio projects.

This is what my husband says about Simon Cowell, that he is the kindest person on American Idol because some people shouldn’t have their singing aspirations fostered. This is true in every profession or avocation. Of course, whenever someone tells me that they always wanted to go to law school, I encourage them because frick, if I had to suffer through that hideous experience why shouldn’t they?

Robin has a great post over at Romancing the Blog about the Bad Mother in romances. I always hate reading her blog posts on other blogs because they are always so interesting that I am jealous it isn’t posted here. Go forth and read:

Have you ever noticed how many bad mothers there are in Romance? And by "bad," I mean cruel, abusive, dismissively unfaithful, even violently and sexually perverse (Mary Jo Putney’s Dearly Beloved comes to mind here). I recently finished Judith James’s new release, Highland Rebel, and the hero, James Sinclair, describes his mother as "a wanton who played my father for a fool." Poppy’s mother in Eloisa James’s An Affair Before Christmas almost destroys her daughter’s will and her marriage through her cruelty, selfishness, and usurping interference. Min Dobb’s nagging, social-climbing and superficial mother in Jennifer Crusie’s Bet Me does not, as I remember it, enjoy one moment in which the reader might feel sympathy or affection for her. And then there’s Skye Titan’s physically absent mother in Susan Mallery’s recent release, Lip Service, who committed suicide and then set about ensuring that her young daughter would be the one to find the body and the decidedly not reassuring note.

The UK finally apologizes to Alan Turing, genius codebreaker of WWII, whom they drove to his suicide in 1954. Harsh words? No, really just the facts. Alan Turing admitted to being gay and this was punishable by law in UK in the 50s. He was convicted and given the choice of imprisonment or chemical castration, the injection of female hormones. He chose the latter but ultimately could not live with this. We were deprived of Turing’s genius because of persecution for his sexual orientation. Perhaps the saddest thing is that Alan Turing’s of today are still persecuted in many real ways such as the US government’s Don’t Ask, Don’t Tell policy and DOMA and others.

Mrs. Seinfeld (who really even knows her name, Jessica, I think?) book about cooking healthy food can continue to earn profits without a penny going to Missy Lupine who had filed a copyright infringement case. The copyright infringement case has been dismissed. The part about Jerry Seinfeld comparing Lupine to an assassin? That’s still on.

MediaBistro has information that Amazon is trying to obtain the content of books earlier to provide earlier access to readers for its “Search Inside” feature. I have high doubts that publishers will be rushing to take advantage of this program. Search Inside allows the consumer to view snippets of the book but not read the entire book. I can just see authors dismayed by the idea that consumer’s will be able to read excerpts of content out of context far in advance of the book’s sale.

Related posts:

1. Tuesday News Roundup: Sony & iRex Out With 3G Wireless Readers
2. Tuesday News Roundup:
3. Monday News Roundup: Angela James Leaves Samhain & other stuff that’s not as important

JD Salinger has not published since 1965 (and has no need to do so as Catcher in the Rye sells hundreds of thousands of copies per year). On Monday Salinger filed papers enjoining the publication and sale of the Coming Through the Rye. It will be interesting to see what the courts will say as to whether this derivative work is creative enough to be a fair use or whether its infringement.

Related posts:

1. Author Sues Distributors for Sale of Unauthorized Copies of Books
2. Revised Unauthorized Lexicon Set to Hit Shelves
3. Tom Cruise Unauthorized Bio to Face $100 Million Lawsuit

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Q: I’ve heard that there is some debate over Kindle’s Text to Speech Function. What is it and should I be concerned?

A: When Amazon released it’s Kindle 2 in February, it announced that it had included the ability for every document/book/written work on the Kindle to be real aloud using a robotic voice (either girl or boy). You can hear a sample of it here as read by Wil Wheaton. The TTS functionality was switched “on” as a default. Author’s Guild objected to this on the basis that the right to read a book out loud was an audio right, a derivative right of authors under the Copyright Law.

Q: What exactly is the legal argument that Authors Guild is making?

A: Ideas cannot be copyrighted, only their expression. For authors, that expression is the written work — a book, short story, novella, etc. For each written expression/work, there are rights the creator has to control how the work is copied, to whom it’s distributed, how it’s distributed and in what form, and the like. These rights are part of the creator/author’s copyright, which is their ownership interest in the written work, which is the intellectual property of the author. Authors can and do sell some of these rights to publishers, which is what allows the written work to reach a broader audience — the publisher then possesses the right and exercises it in producing, printing, and distributing the author’s work. While the author still owns the expression itself, the content, she does not necessarily retain every right she has in the process of bringing that content to a larger audience.

Rights are traditionally understood to be the following and can be found in Section 106 of the Copyright Act:

• Reproduction: the copying of the work in a fixed form such as the print or ebook version.
• Derivative work: works produced which are based on the original work.
• Distribution: the selling, leasing or otherwise transmission of the work from the copyright holder to anyone else.
• Public Display: show a copy of the work in public.
• Public Performance: a performance of the work in public.

These rights can be broken down and sold in as many pieces as the author can envision and others are willing and able to pay. Some authors have been able to sell their digital rights separate from their print rights (a split of the reproduction right). Many authors make deals based on geography selling first their native state rights (i.e., North American rights) and then selling foreign rights (a split of the distribution rights).

The Authors Guild’s argument is that the audio right is a derivative one and that TTS is infringing on the derivative audio right. From the Copyright Act:

A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a "derivative work"

Q: This sounds right to me because I do have audio rights for which I get a separate royalty when and if my book is made into an audiobook and sold.

A: The fact that an audio book is a derivative right doesn’t end the analysis. First, the TTS technology itself is not infringing because it can be used for substantially legitimate purposes such as increasing accessibility to the vision and learning impaired. Second, the transcription of text to voice is not a derivative work. It does not recast, transform or adapt the work into something else. The ability of a computer to read aloud to the purchaser of an ebook is not different than a parent reading to his child or a daughter reading to her vision impaired grandmother. The Authors Guild is arguing that the ebook with TTS enabled is essentially two rights: the reproduction of the work PLUS the derivative audio version. Instead, the digital copy with TTS enabled is simply one digital copy that could employ existing technology to have the text voiced.

Authors do have the right to control the public performance of their works as specified above. According to the Copyright Act:

To perform or display a work "publicly" means -’

(1) to perform or display it 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; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

In order for the Kindle TTS to violate an author’s right to control the public performance of one’s work, the Kindle would have to be used to where a substantial number of people outside the family are gathered. Public performance does not constitute a reader employing technology to have words read aloud to him or her, particularly in the privacy of her home. In most cases, the Kindle TTS function is not a performance in any way covered under the Copyright Act; it is merely a convenience for the reader to have an electronic rendering of the words in the same way a car’s GPS system might read an address or a street name to a driver.

Q: I’m concerned that if a reader can employ a read aloud feature in her home or her car or while traveling or working out that audiobook sales will decline. Shouldn’t I protect myself against that?

A: First and most importantly, the individuals who stand to gain the most from TTS being enabled are those with vision and learning impairments. Currently those with vision impairments do not have the ability to read every book published. The aim of authors should be to get their books into the hands of every individual who is willing to purchase it in formats that meet the consumer’s abilities. Individuals with vision or learning impairments could be greatly aided by the TTS.

Second, the existing TTS technology is not on par with audiobook performances. Individuals who are buying audiobooks for performance reasons would not be satisfied with TTS. As evidenced by the Wil Wheaton example above, the performance quality difference between the computer generated reading and a specifically recorded audio book is much different. You could listen to the Kindle 2 and iPod Shuffle perform a scene from Star Trek II. The TTS is a much inferior product to the audio book. At Open eBook, there is another comparison between the TTS voice and a performance. As the Open eBook article notes, the disabling of TTS actually makes the book unreadable for those who are vision or learning impaired.

Authors Guild says that TTS technology is improving at leaps and bounds and that the sales of audiobooks are in jeopardy. Authors Guild’s argument fails in two ways. First, copyright laws deal only with existing infringement, not possibly infringing use sometime in future generations. Second, copyright infringement occurs when someone makes a copy (or infringes on another one of the exclusive rights granted to creators), not when someone loses money. For example, the VCR certainly changed the economic structure of the movie and television industry, but the question of whether the VCR infringed on copyright depended on details of its use. Likewise, a person retains copyright in works even if she has no intention of making a commercial profit on them.

Third, TTS is a ubiquitous technology. It exists in various forms in nearly every piece of electronics we own. Our phones contain TTS capabilities in the form of voice dialing. There are programs that will do the reverse of TTS by taking audio and transcribing it to text such as programs that will take your voicemail and create texts that are emailed to you. TTS exists on nearly every computer and soon will be incorporated into many other devices including but not limited to digital ebook readers.

Q: What should I do if I want my books to be enabled?

A: It depends. First, we have to operate under the erroneous principle that Amazon considers TTS a bundle of an author’s audio rights. Getting the TTS enabled would require the rightsholder (whether that is the author or publisher) to contact Amazon with two things:

a) Proof of the right of ownership over the audio rights.

b) A request to enable TTS.

Related posts:

1. Why Amazon Was Wrong to Back Down from Authors’ Guild
2. Federation of the Blind Pushes Back Against Authors Guild
3. Maili’s Rant on the Author’s Guild Text to Speech Position

Heidi Stanton, a former college roommate of Stephenie Meyer, claims that Twilight and its progeny may be plagiarised from a short story that Stanton wrote in college.   The claim has enough heft to bring the New Moon production to a halt.   Perhaps Stanton’s support from Bringham Young professors is what is lending credence to the IP dispute.

Mrs. Stanton’s claims have some credence to them as she has documented proof that a short story with very similar idea was written by her in 1993 while she was a sophomore at BYU. English department chairperson Dr. Peter Benton was at the time a second year professor of writing and distinctly remembers Ms. Stanton’s prolific writing style and the vampire story in particular.

“The story stood out in my mind, at the time, because it was more advanced than most sophomore students usually presented, also the vampire story stood out because I had recently taught a series of lectures on Brahm Stoker’s Dracula.” claims Dr. Benton. “I felt at the time that Heidi had brought a very current and up to date look at a classic subject.”

See more at IMNOTOBSESSED.COM Thanks Marie for the link.

UPDATED:   Apparently Stanton filed suit in Utah and this article calls that basis of the suit “idea infringement”. There is no such thing so I’m not sure if the writer just got the gist of the suit wrong or whether Utah   has special copyright laws.

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Both ideas are somewhat suspect but the mere saleability of an idea shouldn’t prevent reader concern over this issue. The Authors Guild is attempting to broaden the copyright to include rights that were never conceived to be considered part of the bundle of rights granted by the Copyright Act of 1976 or any of its subsequent modifications. Indeed, the Authors Guild torturous interpretation of the rule to include olfactory rights would be an impossible stretching of Copyright that not even JK Rowling’s lawyers would have the chutzpah to claim.

From the Authors Guild statement:

It is important to note that in the digital era, books, and the smell of books, have been decoupled. In the future we expect authors to participate in the development of custom aromas for their books. These olfactory rights constitute a derivative right to be licensed separately. The preservation of these rights is essential as authors explore new markets and distribution channels.

As Cory Doctorow recently
href=”http://www.guardian.co.uk/technology/2009/mar/31/cory-doctorow-kindle”>wrote in the Guardian on a piece related to the the Kindle’s TTS function, the Authors Guild is trying to appropriate rights that don’t rest with the authors in the first place.

Now, I happen to disagree with that position because I don’t think that text-to-speech is a substitute for audiobooks for the majority of listeners, and because the value of text-to-speech is such that people will buy enough ebooks to offset any losses from substitution, and, most importantly, authors who oppose this feature look like grasping, greedy jerks and will alienate their readers.

There is nothing in the Copyright Act that gives rise to the Authors Guild position. Copyright applies only to the expression of an idea. I question whether the smell of a book could ever be copyrighted. The formula that creates the smell could be patented and probably copyrighted but the expression, the scent itself, does not seem to be copyrightable. Can you copyright the air that we breathe? Further, old book smell isn’t created by authors at all (and it is creativity that the copyright act is designed to protect). Old book smell is created through the aging and molding process that results when paper is exposed to the elements over a period of time. If anything could be rightly deemed intellectual property, it is the process by which the smell is achieved. NOT THE SMELL ITSELF.

Further, each individual human has a different ability to smell. According to research conducted through the Human Genome Project, humans have "superfamily of approximately 1000 odorant receptor (OR) genes and that each OR gene is expressed in approximately 1 per 1000 olfactory epithelial neurons (hereinafter OE) and that polymorphisms in many of these genes have been reported. In lay terms, different people have different abilities to sense smells. This implies "interindividual variation in olfactory responses and perhaps to diseases triggered by olfactory stimuli."

Indeed, if you look that the "abstraction-filtration-comparison" test which is used by courts to determine if an accused work is substantially similar to the protectable elements of a copyrighted work, you can see that there are simply some concepts that are not subject to protection. The first step in the abstraction test is to “separate the ideas (and basic utilitarian functions), which are not protectable, from the particular expression of the work.” Copyrights do not protect concepts such as the subject matter present in artistic renderings. As Justice Holmes stated: "Others are free to copy the original. They are not free to copy the copy." Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 249, 23 S.Ct. 298, 47 L.Ed. 460 (1903).

Therefore, the scents that are being reproduced are copying the original, not something that the authors are entitled to as a derivative right. Simply put, this is another overreaching rights grab by Authors Guild and for the sake of readers rights, we can only hope DuroSport will not cave to these demands.

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1. Author’s Guild Tells Authors to Stay Out of the Ebook Game
2. Federation of the Blind Pushes Back Against Authors Guild
3. Why Amazon Was Wrong to Back Down from Authors’ Guild

On the other side of the coin, Amazon is being sued by corporate entertainment big wig Discovery (of the Discovery Channel) for infringing on the patent Discovery has for the delivery and sale of digital ebook content. The patent Discovery has seems to cover DRM schemes so I’m not sure why Discovery hasn’t sued before although it might be due to the issue that the patent is more broadly about delivery schemes:

The patent’s abstract describes how “a portable book-shaped viewer is used for secure viewing of the text” and how “a billing system performs the transaction, management, authorization, collection, and payments.” That last bit appears to be describing Amazon’s role as gatekeeper for the transactions involved in putting content on the Kindle.

Discovery doesn’t want an injunction halting the sale of the Kindle. Instead, it wants in on the cash flow Kindle might/will be generating.

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"The National Federation of the Blind supports all technologies that allow blind people to have better access to the printed word, including the ability of devices like the Kindle 2 to read commercial e-books aloud using text-to-speech technology.   Although the Authors Guild claims that it supports making books accessible to the blind, its position on the inclusion of text-to-speech technology in the Kindle 2 is harmful to blind people. …   The key point is that reading aloud in private is the same whether done by a person or a machine, and reading aloud in private is never an infringement of copyright.

Via MediaBistro.

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Even better, AuthorsGuild is now telling its authors to stay out of the ebook game because being part of the only area in which the industry is actually seeing growth   makes good business sense.

We’re studying this matter closely and will report back to you. In the meantime, we recommend that if you haven’t yet granted your e-book rights to backlist or other titles, this isn’t the time to start.

I’m not sure who is in charge of AuthorsGuild, but I do have to wonder whether they actually want to sell books or merely hold onto their rights?

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Each party asserts that the Court should adopt the plain meaning of the term "distribution;" however, they disagree on what that plain meaning is. Thomas and her supporters argue that the plain meaning of the statute compels the conclusion that merely making a work available to the public does not constitute a distribution. Instead, a distribution only occurs when a defendant actually transfers to the public the possession or ownership of copies or phonorecords of a work. Plaintiffs and their supporters assert that making a work available for distribution is sufficient.

In this case, Thomas made copies of music available for distribution by placing them in a folder on her computer where others on the internet could access them. The court ultimately found that distribution requires some affirmative act of dissemination. The judge carefully considers every possible angle including comparable criminal statutes, other language within the copyright law and even treaties.

The Court concludes that simply because all distributions within the meaning of  § 106(3) are publications does not mean that all publications within the meaning of  § 101 are distributions. The statutory definition of publication is broader than the term distribution as used in  § 106(3). A publication can occur by means of the "distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease or lending."  § 101. This portion of the definition of publication defines a distribution as set forth in  § 106(3). However, a publication may also occur by "offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display."  § 101. While a publication effected by distributing copies or phonorecords of the work is a distribution, a publication effected by merely offering to distribute copies or phonorecords to the public is merely an offer of distribution, not an actual distribution.

The court goes on to say that Congressional intervention is needed:

The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peerto‐peer network cases such as the one currently before this Court.

The court found that the law is not well suited for punishing individuals because the statutory damages do not actually deter piracy nor does it properly punish the crime.

The statutory damages awarded against Thomas are not a deterrent against those who pirate music in order to profit. Thomas’s conduct was motivated by her desire to obtain the copyrighted music for her own use. The Court does not condone Thomas’s actions, but it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market.

and

While the Court does not discount Plaintiffs’ claim that, cumulatively, illegal downloading has far‐reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs ‐ the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000 – more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs. While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent.

The Eighth Circuit Appellate court is notoriously pro business so it will be interesting whether this decision will be overturned. If not, it puts a real damper on the RIAA efforts to sue individuals and makes future suits contemplated by publishers.

Related posts:

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