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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?

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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.

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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

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Ursula K. LeGuin charges the Authors Guild with selling authors down the river by entering into a settlement agreement with Google. The Authors Guild responds by saying that it couldn’t allow a court ruling on the case because if Google won and the scanning and snippet display were considered fair use any Tom, Dick or Jane with a scanner and time could set up a search engine of books.

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Amazon claims that on Christmas Day it sold more ebooks than physical books. This is hardly surprising since Kindle was a hot Amazon gift item and what else are you going to do when all the stores are closed but download music, movies and books? Of course, as always, Amazon doesn’t release numbers. As for Barnes and Noble, apparently unprepared for the onslaught of people who got nooks for Christmas wanting to actually use the devices, the retailers servers crashed and the nook was unable to complete people’s download requests for all of Christmas Day.

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Washington Post writes that there is a conflict brewing over ebooks because consumers’ desires aren’t being met by publisher business plans. As customers move toward wanting instant access to all books published, publishers are working to funnel customers back to the retailers. The Post hasn’t quite caught on to the publishing mindset because it ends with this:

But if the publishers want a role in the e-books business, they’ll need to get over it and get on with it, embracing lower-priced e-books with higher author royalties. That seems unlikely. Because it’s now clear that publishers just don’t want to listen to what their customers are telling them.

We know that the publishers are listening to their customers. It’s just that the customers aren’t the readers. In Carolyn Reidy’s 2009 year end statement, she clearly defines the customers as the resellers:

The U.S. bookselling marketplace has been truly lackluster, and year-on-year sales at most of our major customers have declined significantly.

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The rumors of the Apple Tablet are heating up with discoveries of a website called iSlate having been purchased by Apple and that they have rented a stage at Yerba Buena Center for the Arts in San Francisco for late January. All signs point to a major product rollout. You can read a roundup of the Apple Tablet rumors here. Essentially it sounds like an announcement of a 7-10″ tablet running around $500-$1000 available sometime in early to mid 2010.

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Random House makes a move in the right direction by making more of its digital books available internationally. English language books will be made available worldwide, for any region Random House owns (or believes to own) the digital rights. I hope more publishers and authors will do this because it doesn’t make sense to leave piracy the only available path for international digital readers.

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Finally, All Romance eBooks has over 170 novellas, short stories, and a few novels for free at its webstore. I haven’t looked at the list sufficiently to tell you what is worth downloading except for this book by Sarah Mayberry. Home for the Holidays is quite a good read and it’s a steal at the price of $0.00.

Related posts:

1. Ebooks Does Not Equal Free Books
2. Wednesday Midday Links Roundup: More Casual Gaming for Romance Authors
3. Daily Links Round Up: Authors Losing Their Shit & FREE Kindle Books

I understand that you have had a lawyer send out a cease and desist and takedown letter to a romance blogger based on two things. First, you argue that the comments that the blogger excerpted from your own website (which you subsequently deleted but Google preserved for all time) are somehow unacceptable infringement.

In this posting you excerpt from a website that is copyright protected, thus violating federal copyright law. There is and has been an existing disclaimer on Ms. Laurie’s website, (www.victorialaurie.com), which states that; “No part of this website may be directly copied or duplicated and all of the content herein is copyright protected.” These quotes you have posted to your blog should be immediately removed or Ms. Laurie will be forced to take appropriate action.

I’m sure your lawyer explained to you the concept of “fair use” and you simply choose to ignore such advice and told the lawyer to go ahead and make the accusation of infringement. Fair use, as your lawyer must know since she references federal copyright law, allows for copyrighted content to be used without permission according to Section 107 of the U.S. Copyright Act. Acceptable uses are “criticism, comment, news reporting, teaching, scholarship, and research.” NovelReads is a blogger who used your own words for criticism, comment and possibly even teaching. Further NovelReads’ use of your words does not impair the marketability of your original work. I am sure that you could find a publisher for your work, perhaps in a volume of “The Dummies Guide to Internet Behavior By Authors: What Not to Do.”

Second, your attorney asserted

In addition to the above violation of law, on Tuesday, August 12, you contacted the voice mail of someone you thought to be Ms. Laurie’s editor at Penguin Group USA and left a voice mail claiming that you were “deeply disturbed” by a blog posting and requesting a comment (a copy of which we have in our possession). Please consider this letter a cease and desist letter. While you are free to express your opinion under the First Amendment, taking impulsive and inappropriate action with the attempt to interfere with a contractual relationship is unacceptable…

I’m surprised that you find it objectionable for a reader to call your editor to ask whether it is in fact true that your editor condones you harassing and vilifying readers for your own entertainment and engaging in possibly tortious and defamatory actions and that same editor encourages other authors to do the same. I think I’ll call your editor myself to ask since that self same reader did not get a response yet to see if the “editor thinks this concept of mine is hilarious and she’s going to suggest the idea to her other authors who are fed up with being targets for the mentally deranged.” I’m not sure what violation impulsivity falls under but I do recognize the claim that you are making in regards to the existing contractual relationship.

There are two such business torts that exist: Tortious interference with an existing business relationship and tortious interference with prospective business relationships. The problem here is proving these claims because I have yet to see where a single phone call to inform an editor of conduct that the editor already knows of is tortious interference in any way. Further, I am pretty sure we customers can call and complain about a company’s product without being accused of tortious misconduct. Of course, your lawyer is free to write me and tell me where I am wrong.

Your lawyer also knows that by writing threatening letters that do not have a reasonable basis in law or fact can open her up to an ethics complaint. For example, according to the Texas Center for Legal Ethics and Professionalism, a lawyer promises that she ” will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party.”

I find it odd that I have engaged in the same objectionable conduct and I have not received a letter from your or your lawyer. Is is because you don’t think I would take you seriously? Or is because someone told you I know what the law is and I am not afraid to use it to defend myself? Instead, you harass someone else in hopes that the person will be so intimidated and that you won’t be found out?

In any event, thanks for having the letter sent. It provided me with a great source of amusement. Unfortunately, the blogger in question was not amused. No, she was scared. I completely understand if the blogger chooses to take content down or change existing content because she doesn’t want to be harassed by you and your lawyer. That was exactly the point of the letter, though, wasnt it? To harass and strike fear into the heart of the blogger?

I do wonder about your psychic abilities. They just don’t seem to be steering you in the right direction these days.

Related posts:

1. Does Psychic Victoria Laurie Forsee Lawsuit in Her Future?
2. Anonymous Blogger’s Identity Being Pursued Through Lawsuit by City of Memphis
3. The Frustrating Part of Internetizens: Everyone’s a Lawyer

On the SBTB site, Laura Kinsale asked the question “I’m curious. What’s the difference between Cassie Edwards writing about ferrets and fan fiction published for profit?”

Robin’s response was “the fact that fan fiction, by its very nature, has overt attribution.”

My response was

The difference, ethically (and in general), between fan fiction and plagiarism, i.e., the Cassie Edwards repeated use of other people’s words, is the attribution or lack thereof. Fan fiction gives attribution to the original authors work. Plagiarism is the passing off of someone else’s original work as your own.

I definitely think that there is probably fan fiction out there that a) plagiarizes and b) infringes. But I am not going to condemn an entire body of work based upon the individual pieces that may be unethical or may be violative of the copyright act just like I am not going to condemn the entire romance genre on the basis of work by Cassie Edwards or Janet Dailey.

I also think that there is fan fiction out there that is not infringing and would be considered transformative enough. I.e., I have thought that a work that transformed JR Ward’s BDB series into a gay romance rather than a straight might very well well be considered satirical and creative enough to overcome a copyright infringement challenge. The goal of fair use is to allow comment, criticism, commentary on original works. Some fan fiction is going to meet that and some is not.

Moving on, though, to address the JK Rowling thing. I think most people know that RDR Publishing attempted to publish a print copy of the website maintained by former librarian, Steven Vander Ark, called the Harry Potter Lexicon. JK Rowling and Warner Brothers filed suit for an injunction and for damages (the latter is puzzling as no damages exist at this point since the Lexicon has not been published).

Now I know from reading Fandom Wank and comments on other sites, including SBTB, and from emails, that the fan community is largely on Rowling’s side in this instance. I think that part of the reason for the intense disdain and sometimes hatred toward Vander Ark and RDR Publishing arises out of the paradigm within the fan community. One commenter described it as a “gift” community and it is seen that Vander Ark is taking the “gifts” of the community and attempting to profit off them. Whether Vander Ark is violating copyrights of the community is absolutely separate from JK Rowling’s suit because she doesn’t own the rights to the work of the community.

I like communities like Fandom Wank which is filled with bright, funny individuals. I don’t question their loyalty to Rowling. I also believe that they are t entitled to feel the way they do toward Vander Ark. But I do think that they are wrong in interpreting the effects of a favorable ruling for Vander Ark.

What is at issue is whether an Encyclopedia of Rowling’s Harry Potter work is fair use. It is clear that the use of the Harry Potter books written by Rowling is used in the Lexicon and that is infringement. Fair use, as discussed previously, is an excuse for infringers. Essentially it’s like a get out of jail free card. Fair use is an important part of the copyright law and has been in existence for as long as intellectual property rights have been recognized. "From the infancy of copyright protection," the fair use doctrine "has been thought necessary to fulfill copyright’s very purpose, "[t]o promote the Progress of Science and useful Arts.’ " Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) (quoting U.S. Const., art. I,  § 8, cl. 8). The reason for this is that copyright is essentially a monopoly. Monopolies are deemed not only inefficient but more importantly suppress advancement. The struggle copyright law has is to afford enough protection to the individual creator of a work while not suppressing creativity and advancement in the arts.

The fact is that any encyclopedia of a work must include copyrighted phrases. To not allow encyclopedias to use copyright phrases would be to limit the creation of encyclopedias only to the copyright holders. This is an instance in which the law and the courts interpreting the law have said to do so would suppress advancement. Even using copyrighted works, in their entirety, has been found to be transformative in some cases such as the Perfect Ten v. Amazon, 508 F.3d 1146, 1165 case in which the Ninth Circuit court determined that the use of thumbnail images in a search result was fair use because it was transformative enough.

It may be that JK Rowling may win this case and thus strike a blow to academic endeavors because this interpretation would narrow the application of fair use. It may be that Rowling will lose this case and thus expand the application of fair use. What I don’t believe will happen is an increase in cease and desist letters or a decrease in them as it relates to fan fiction. The reason I believe this is because fair use is decided on a case by case basis. Each work that infringes upon another’s copyright must be measured on it’s own terms. Which is why I said in answer to Laura Kinsale that the body of fan fiction is not per se violative of copyright. In some cases, fan fiction will be deemed to fall under fair use and in others, it will not. No matter the outcome of the Rowling case, infringement and fair use will still be determined on a case by case basis.

Related posts:

1. Regarding the Cassie Edwards situation
2. More Evidence of Cassie Edwards “Lifting”
3. Possible Cassie Edwards Response to Plagiarism Charges

In tuth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.

Justice Story in Emerson v. Davies, 8 F.Cas. 615, 619 (No. 4,436) (CCD Mass.1845).

One of the terms that has been bandied about during and post Savage Gate is “fair use.” In the Signet response to my inquiry regarding the allegations against Cassie Edwards regarding copying, I received a strange and bit confusing reply:

The copyright fair-use doctrine permits reasonable borrowing and paraphrasing of another author’s words, especially for the purpose of creating something new and original. Also, anyone may use facts, ideas and theories developed by another author, as well as any material in the public domain. Ms. Edwards’s researched historical novels are precisely the kinds of original, creative works that this copyright policy promotes.

This mixing of public domain and fair use is a bit misleading and it seemed to me that there was quite a bit of confusion about what fair use is. I’ve seen it used in terms of whether use is fair but the “fair use doctrine” has a specific legal meaning and it is not a defense to plagiarism but rather a defense or an excuse for an infringement of someone’s legal copyright.

Copyright Law v. Public Domain

The term “fair use” is derived from a statutory defense in the Copyright Act of 1976. The Copyright Act gives a creator of an original work, such as an author, a set of exclusive rights to distribution which includes copying. When an author signs a contract with a publisher, that author gives up a certain part of her exclusive rights in exchange for money and other acts of publishing (i.e. advertising, access to distribution channels, registering of the copyright, etc). For the period of time set by the contract, the publisher is then the “owner” of the rights sold to them.

Ordinarily it is the right for a publisher to make as many copies as it can and sell them throughout a geographical region (i.e. US, Great Britain, Worldwide, in e form, in audible form, etc.). The Copyright Act and its subsequent amendments grants the creator of a work these exclusive rights for a period of time (time of death + 70 years). Once the time period expires, the work enters “public domain” and the public can do with it what it wishes (i.e., Mobile Read users are busy coding public domain works for ebook readers).

Fair Use Excuses Infringement

It is important to note that the fair use is an exception to the exclusive right of ownership. In other words, unless you are infringing on someone else’s copyright, the fair use doctrine has no applicability.

To invoke the usage of “fair use” is to admit that you have infringed but that the infringement is excused because it falls under the “fair use doctrine.” The usage of it by Penguin in its statement is a bit curious because on the one hand the statement says the use is “fair use” implying that there was infringement. The second part, then, invokes public domain concepts.

If you copy a public domain work, you are not violating any copyright and thus are in no need of the “fair use doctrine.” This is part of the legal v. ethical dichotomy that exists between copyright infringement plagiarism. Because the “fair use doctrine” excuses only copyright infringement, it is completely inappropriate to use that as a defense to plagiarism. No one owns the copyright of public domain works, thus the use need not be measured by the copyright rules. (Hence the “public” of “public domain”).

Definition and Purpose of Fair Use

The specific statutory provision is the contains the Fair Use defense is  § 107 of the Copyright Act of 1976 which states:

Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Under the fair use doctrine, individuals can use copyrighted material without the permission or consent of the original rights holder. The purpose of the fair use limitation is to promote creativity which is the underlying reason for the Copyright Act which is “the Progress of Science and useful Arts.”

History of Fair Use

There are essentially two kinds of law: common law and statutory law. Statutory law is the laws that are made by the legislature and signed by the governor or the President. Common law is law that is developed through the opinions of judges.

The fair use doctrine stems from judicial exceptions carved out beginning in the 19th century for limited uses of copyrighted work. Usage would be excused if the copied portion was small and was for a “socially beneficial purpose.” Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1105-25 (1990). In 1976, Congress transformed the judicial doctrine of fair use into a statutory one but the courts still rely on the body of judge made law that stems from the 1850s.

Determining Fair Use (applying the principles):

Determining what is fair use is a balancing test. If you think of the scales of justice, the courts weigh the rights of the copyright owner on one side and the public use on the other. The goal is that the rights are balanced against the original purpose: fostering creativity and original thought.

Each instance of “fair use” is determined on its own facts, in a case by case basis (which is why you can’t say that fan fiction is strictly illegal or infringing. Some fan fiction that copies from an original composition may very well be fair use).

In Savage Gate, one book could be said to have been “fair use” and another infringing. In examining the principles of fair use, I am going to use two books and two sources: Paul Tolme’s article about ferrets and Savage Bear and Oliver La Forge’s Laughing Boy and Savage Dream. Because it is a rather complex topic, I’ll address the four factors in different posts.

1. Purpose and Character of Use

Purpose and character of use can be distilled into two major categories (this is very broad and can include other meanings but for the purposes of this article I am simplifying)

a. Transformative nature
b. Commercial use

a. Transformative nature.

One of the most recent rulings on the fair use doctrine was the 1994 case involving 2 Live Crew’s remake of “Oh, Pretty Woman.” The remake, Pretty Woman, was originally sent to Acuff-Rose Music, Inc., the owner of the rights to the song penned by Roy Orbison and William Dees, with a request for permission and an offer to pay licensing fees. Acuff-Rose refused to agree to the parody but 2 Live Crew proceed to release “Pretty Woman” in the summer of 1989. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

Acuff-Rose brought suit against 2 Live Crew for infringement. At the beginning of the opinion, Justice Souter admits that but for the fair use doctrine, 2 Live Crew would be infringers. 510 U.S. at 574. But the fair use doctrine allows the use of copyrighted material, without the permission and consent of users, if the material is transformative. The very nature of parody is the copying or imitation of an original work (as opposed to satire or some other nature of commentary). This does not mean that all parody is exempt from infringement claims. Nor does the success of a parody mean it is fair use. Yankee Publishing Inc. v. News America Publishing, Inc., 809 F.Supp. 267, 280 (SDNY 1992) (Leval, J.) ("First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed.")

The test for how much of the original work is fair use for a parody is the term “conjure up” (real test, not pulling your leg here). The parody must “conjure up” enough of the original work to make the object of criticism recognizable. At some point, though, usage of the original loses its parodic quality and instead becomes a substitute for the original and then loses its “fair use” protection.

The purpose of the use by Ms. Edwards is to add authenticity to her books. In the media blurbs, she is cited as bringing authentic native indian culture into her works. Her career seems to be built upon her writing of historical romances featuring “Indian lore.” Edwards did not mean to parody or satire and therefore wasn’t transformative in that manner.

On the other hand, Edwards fictional novels of Native Indian romance was not intended to supplant Paul Tolme’s articles on ferrets. There is nothing about Savage Bear that adds new meaning or different character to Tolme’s work. It is used as Tolme used it, a narrative on the activities, backgrounds, and habits of ferrets. There was no additional information about ferrets that Edwards imparted to her readers. The ferret article was not a launching pad for additional research and insights.

In regard to Laughing Boy, however, I would argue that authors of historical fiction would find a decreasing market share if other fiction authors were allowed to incorporate fictional prose from one to another. It is far less transformative from fiction to fiction than it is from non ficton to non fiction although, as the Supreme Court noted in the Harper Row case, “Creation of a nonfiction work, even a compilation of pure fact, entails originality." Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 539 (1985)

b. Commercial use

Sony Corp case is often cited for the following statement as it relates to commercial use:

Although not conclusive, the first factor requires that "the commercial or nonprofit character of an activity" be weighed in any fair use decision…. [A]lthough every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter.

Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 448-49, 451 (1984).

While the Supreme Court’s edict regarding commercial use seems absolute, it has not been applied in that manner. In Acuff Rose case, the Court evinced a certain change of heart saying “If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of  § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities "are generally conducted for profit in this country” Acuff-Rose, 510 U.S at 584.

But when the commentary or use of the copyrighted material does not address the substance or style of the original work or the “the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.” Id. at 580.

Because Edwards use of the copyrighted material, both Tolme’s work and the work of Laughing Boy, lack any kind of commentary for education purposes, the claim of fairness is diminished. Edwards clearly relied on works from Tolme and La Forge to enhance the authenticity and sound of her own books, to distinguish her own books from other Native Indian works and possibly even other historical novels. In using word for word lifting of the original passages, Edwards “avoids the drudgery in working up something fresh.”

For example, in Dr. Seuss Enterprises, L.P. v. Penguin Books USA, 109 F.3d 1394 (9th Cir. 1997), Seuss challenged a pending Penguin publication involving the retelling of OJ Simpson’s trial in Seuss verse. Even though none of the original words were copied, the stanza, meter and STYLE of the original work was. The 9th Circuit found the Penguin publication to be infringing because the work and illustrations “simply retell the Simpson tale. Although The Cat NOT in the Hat! does broadly mimic Dr. Seuss’ characteristic style, it does not hold his style up to ridicule. The stanzas have "no critical bearing on the substance or style of" The Cat in the Hat.” Id. at 1401.

Similarly, Edwards makes no challenge or criticism of the style, prose, contents of either Tolme’s work or the work of La Forge in Laughing Boy.

Further, "crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price." Id.

It is arguable that the Edwards works are not transformative in anyway, not undertaken for purposes of criticism or commentary, offering no educational purpose that the original works did not offer, and that the Edwards usage was to increase the commercial viability of her own work. My opinion is that this factor weighs against “fair use” but there are three other factors to measure.

Next week: Blogger ethics and then returning to fair use with factor no. 2: nature of the use.

Related posts:

1. University of Michigan Weighs in on Fair Use, Copyright and Google Bookscanning
2. Bi-Partisan Bill Introduced in Congress to Replace DRM with Fair Use
3. Regarding the Cassie Edwards situation

Google’s position has been enhanced recently by the public statements of the University of Michigan’s head librarian, Paul Courant. Mr. Courant recently posted a response to a query by Siva Vaidhyanathan, a professor at the University of Virginia, regarding the legalities of Michigan’s participation with Google.

Vaidhyanathan calls it “audacious infringement of copyright.”

Courant responds:

“I must say that I am troubled that the author of a very sensible book about copyright is so enthusiastic about trashing Google that he is willing to give up on the uses, notably scholarly uses, that are permitted in the higher-numbered sections of the Copyright Act,” writes Courant. “As my institution’s copyright lawyer says: ‘FAIR USE, it’s the law.’ And my institution believes that when we have Google digitize our holdings we do so under the law and in order to make uses that are not only lawful, but that are completely consistent with the undergirding purpose of copyright law.”

Via Ars Technica who has all the direct links and more interesting commentary.

Related posts:

1. Microsoft to Google: Your Technology May Be Better But We’re Going to Be BFF with the Publishers
2. Bi-Partisan Bill Introduced in Congress to Replace DRM with Fair Use
3. I’ve Seen the Vision of the eBook Future via Google and Random House and It Stinks