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Institutional Theft : Google and Academic Libraries. [Sep. 14th, 2011|12:32 pm]
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Some years back, Google arranged with some academic and other libraries that they would provide books to be digitized, and the libraries would then get a copy of the scans, which they could make available to their patrons.

Both Google and the libraries considered this a wonderful thing for themselves and their users.  Whoopee--lots of free books readily available in digital form.  Unfortunately, this bright idea ignored copyright law, the way publishing works, and the rights of authors.

Project Gutenberg had already been digitizing  old texts and making them available freely, and so had a few others, but those projects were confined to books clearly old enough to be out of copyright.  Google and the new libraries involved had no such scruples.  They considered that all books were fair game--including those that already had digital editions produced by their publishers (a clear conflict with copyright laws--those publishers already had the exclusive right--granted by contract--to distribute the electronic edition.)   Google claimed that it would allow only partial downloads of books still in copyright...unless they were "orphaned" works.   Google was sued by a number of writers and writers' organizations for the initial breach of copyright, and the initial settlement was overturned.  The institutional libraries--we now know--had no such intent.   The University of Michigan (and some other universities) are preparing to distribute free full downloads of works Google scanned (even though Google had no right to scan the works in copyright, and the library had no right to give books in copyright to Google to scan.)  These works are now titled "Hathitrust" and are the subject of a new suit by aggrieved writers.

At the root of Google's bright idea  is the assumption that all books should be available to all readers at no or minimal charge all the time--an assumption which strikes at the root of a writer's ability to be paid for his/her work and a publisher's ability to be paid for the work the publisher contributes.  It directly conflicts with copyright law, under which a writer has the right to control the publication and distribution of his/her own work.  But feeding that assumption is another--the presumed existence of hundreds of thousands of "orphan" works, works still protected by copyright, but out of print, and whose copyright owners--the writers or their heirs--cannot be found to ask permission. 

There are several things wrong with this notion.  First, current books may go in and out of print (be temporarily unavailable for order) between reprintings, though the author is easily found.  Like most writers, I've had books go out of print for a few months--or longer--and come back into print.  Second, even when books go out of print for good with one publisher, they may be picked up later by another--or the writer may self-publish (now increasingly common with self-pubbed ebooks and POD.  Several ad hoc writers' groups, such as Backlist eBooks, as well as individual writers working on their own, have released e-editions of out of print works...works still clearly protected by copyright.   I know dozens of writers who are both easy to find and are putting up their own backlists.   (The only reason I'm not is that my books are still in print.)   Third,  the presumption that writers of out-of-print books are "virtually impossible to find" has allowed these would-be thieves an excuse to simply not look for the writer of any book they choose to make use of.   Are there some copyright holders who can't be found?  Yes.  But the evidence is clear that those who wish to profit off someone else's books aren't looking for those who are alive, members of writers' organizations, still publishing, and whose books may even be still in print.  Many such writers protested Google's actions, including me.

Like every other writer, I have a dog in this hunt.   A library donated to Google--and Google scanned--most of my books.  All were under copyright protection.  All were currently in print from publishers easy to locate.   As for the "virtual impossibility" of finding the author:  a Google search on my name brings up first my main website, then the section of that website devoted to the Paksworld books, then a Wikipedia article about me.   My website has come up first in a Google search on my name for at least a decade. (Yes, I checked.)     In other words, a very cursory, minimal search would have found me.  It is  ridiculous for any librarian in the country or Google to claim that I was "virtually impossible" to find or contact.   It is equally ridiculous for any librarian or Google to claim that my books were hard to find or purchase.   I am not the only writer whose in-copyright and in-print books were taken by Google...nor the only one whose website and contact info were easy to find.

Evidently, no one looked: not the librarians who took my books off the shelf and sent them to Google for scanning, and not Google.  No contact was ever made asking my permission to use my work this way.   Instead, someone at some library gave Google the books to scan--without ever considering my rights--and Google scanned them with the same lack of concern.   When I found out about it, I went through the laborious process (it took several days because of Google's clear intent to make it difficult) to refuse Google permission to allow the scans' use.   Google indicated it would "probably" not use the scans for which permission was refused, but that was the best I could do.  

Let's be clear here.  As the copyright owner (the person who created the works) I have the right to license publication and distribution--or not--throughout the life of the copyright.   I have the legal right to decide who--if anyone--can publish, and the legal right to terminate that right-to-publish under whatever contract I signed to allow publication in the first place.  When one publisher finds a book not profitable enough and lets it go out of print, I have the right to end our contract and either let the book lapse or license another publisher (including myself.)    I've been through rights-reversion with one publisher (and the next picked up the book and it's still in print.)  Many writers have been through this.   But should a writer prefer to let a book go completely "still"--remain unpublished--that's the writer's legal right.  No one has a right to sneak into the writer's house and make off with a manuscript or a computer file and publish it...and no one has a right to take a book off the shelf of a library and make and distribute copies (paper or electronic) if the work is still under copyright protection.   No one.  Not a library.  Not a corporation.  Not an individual.   It does not matter if there's only one copy in one library and there's a line out the door wanting to read it: the writer has the right to withhold permission for another round of publication (most of us would rather see a new edition--but I can imagine a circumstance in which a writer wouldn't.  And it's the writer's choice.)

The difference between Project Gutenberg and other smaller projects that digitized out-of-copyright old books is this:  money.  Google saw a profit in holding a huge library of digitalized works, which it could make available for download at minimal cost--because of the ad income it could generate from clicks on the pages that displayed a text.   Once it had the scans, it could charge for the downloads, or simply let the ad-clicks generate it.  Google never planned to compensate writers for its use of their work--it planned to profit from their work without including them in the income stream.   Libraries see profit in holding the Google scan, because they can either charge for downloads or for time on the computer in the library where patrons read or gain prominence (and perhaps funding) through having such a resource available.   Like Google, libraries (who have long profited from writers' understanding that having their book in a library could attract readers who might later buy their books) had no intention of including writers in the income stream derived from allowing downloads.

All works protected by copyright should be summarily removed from the Google scan files, including those now held in the University of Michigan library and all other libraries involved.   The courts should establish what is a sufficient search for the authors of books in copyright before any so-called "orphan" books are put back into the scanned list.   The search should be extensive enough--in both range of search and duration--so that writers have a fair chance of recovering their work if they wish.   There should be a provision for writers who were not found initially to remove their work later, if they wish.  The cost of such search should be borne entirely by those who desire to find them and the complaints of Google, libraries, and their ilk that this will be too costly should be taken with an entire boatload of salt.   Why should they bear the cost?  Because they want the profit.   I spent hours--many hours--trying to be sure that I had found every book  of mine on the Google scan and correctly navigated their tortuous path to refusing permission for its use.  That's unfair.  They acted illegally in the first place, and they should bear the cost of fixing their blunders. 

If you are a university librarian now holding the Google scans...I call on you to do the right thing and remove (if you can) or refuse to download to patrons any book still in copyright.  If you think the book is permanently out of print (not just between printings)  do an internet search for the writer and contact the publisher.   If you are using the Google scan to fill out your own collection...buy a copy of the books that are still in copyright protection and in print.   (I know--budget concerns.  Writers have budgets too, almost certainly smaller than yours.  Feed the writer.)  Because otherwise, you're stealing from writers.  Like Google, who probably came to you with this lovely, alluring, tempting idea, you're breaking copyright law.   I've supported libraries for decades...but I can't support this. 

If you're part of a university administration (and yes, University of Michigan, I'm looking at you!)  you should be aware that your library's participation in the Google project and the use of its scan violates copyright law and you have a responsibility to correct these behaviors.   Demonstrably, copyrights have been violated--mine, among others.  Demonstrably, whatever "safeguards" were supposed to be in place to protect writers' interests failed.   University administrators should ensure that the libraries under their umbrella are held accountable for their actions with respect to copyright law and the rights of authors.

If you're a university student or faculty member who is planning to use the works in "Hathitrust" through your university library, you should be aware that many of the works therein are not there legally: they were obtained without the writer's permission (and permission was not even sought) and their use violates copyright.   Their presence is not the same as a book on the shelf...at some point that physical book represented a sale, from which the writer gained something (maybe only a few cents, but something.)    Writers have not been, and will not be, compensated for the theft of their work that  is now in "Hathitrust."   You will be told these are orphaned works, that the writers cannot be found.  That is a lie.   No one looked.   So please: take a look at the titles, authors, publication dates.  Do a little research yourselves.   If you see a writer name you recognize, that you're a little surprised to find in a group of supposed "orphans"--do a quick internet search and if you find the person, let your librarian know.  And let the writer know. 

NOTE: EDIT ADDED TODAY.   The Authors Guild, checking to see if some of the supposedly "orphan" works really were, found that a bestselling, live, easily located author's work was in the list of "known orphans" in the Hathitrust.   Someone sent me this info overnight, so I'm posting the link  here.   Note that the approach to finding the "impossible to locate" author was exactly what I'd suggested: Google on the name and a book title and go from there.


[User Picture]From: shockwave77598
2011-09-14 05:56 pm (UTC)
Let Google show how big it's pair truly is. Let them put out all of Disney's movies that are no longer "in print" whether Disney wants them to or not. See how far Google gets with its lawyers.

I'm not sure where I stand on Orphan books. I know where I stand on Orphan software -- if you have a copy, how and who you got it from is your business because no company exists to pay in the first place. It's somewhat different for writing though because the writer or his estate are more likely still around. So really they aren't the same thing. While Strategic Simulations (SSI) is no more, so I don't feel bad playing an old game on an Apple2e emulator, the family of Andre Norton still deserves some cash from a book download.

And that's where the Google effort crosses the lines with me. If they are wanting to make all books free then they are taking food from people's mouths as well as violating lots of laws. Again, let them try that with all those movies sitting in the Disney vault if that's their attitude and see how far they get. If they are wanting every book ever written to be sold in a Google store, well, what if I don't want my book associated with Google and it's megalomania? And what about Google putting all the other book stores out of business and creating a monopoly for itself (worse than the Kindle or iTunes by far)?

If they don't own the works and don't have the rights, they shouldn't be doing it, plain and simple. As much as a master library of every work ever created appeals to me as a consumer, that they are in the hands of a corporation which feels it can disobey laws it doesn't like gives me grave pause. And should Google decide not to keep certain titles which denigrate the company or tell the facts about certain Google-approved politicians? Freedom of speech doesn't mean Google has to keep that title in its storehouse, just like Apple plays editorial nanny with its App store.

We should be wary of anyone trying to be the only shopping spot for the world, be it Amazon, Apple, or Google. That's too much power over the media for any non-elected person (CEO) to possess.
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[User Picture]From: e_moon60
2011-09-14 06:11 pm (UTC)
I don't want that much power over the media in an elected person's hands either. The tyranny's bad either way.
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[User Picture]From: keristor
2011-09-14 06:13 pm (UTC)
I disagree with you in one respect:

If the copyright holder cannot be found, but the work is known to be still in copyright (death of author plus 70 years or whatever it is for that medium) then no one at all has any right to copy it. I reject the entire idea of 'orphaned' work (and I believe that the copyright laws of the signatory countries to the Berne Convention will back me up) -- in the absense of a contract, there is no right to reproduce a work until it becomes out of copyright.

The US used to have a system where the only 'protected' works were ones which had been registered. Since signing the Berne Convention that may still exist but is subsidiary to the general rule that everything is copyright to the author at the time of creation (I believe the phrase is something like "in a permanent form", that has been interpreted to mean things like publishing on a web site). There is no need to find you personally to determine that your books are in copyright, a simple search will show that you haven't died yet and so they must be. The only exception is if the copyright holder has explicitly made them Public Domain or has issued an open licence (like some of the Creative Commons ones) for anyone to copy the work -- but it's the responsibility of the person wanting to make a copy to prove that such assignment has been made.

I think that all of the authors -- not the Guild or Union or whatever) should pool resources in a class action suit and sue Google and the people who made the works available for copying. And hit them with the same sort of damages the RIAA and its ilk try to charge, that each copy 'could' have been downloaded thousands of times and each one represents a sale.

Otherwise it introduces an interesting principle -- that Mercedes in the car park is 'orphaned' if I can't see the driver so I can just take it. That food in the supermarket is 'orphaned' if I can't see a cashier. And it is not my job to find the owner, they have to contact me at which time I'll say "oops, sorry" and give it back, no penalties. Under that principle there is no theft, we can all just take whatever we want. Hmm, I wonder what the management of Google have that I might like?
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[User Picture]From: e_moon60
2011-09-14 06:25 pm (UTC)
Well, that would be my position...and I'd love to see website hosts enforce that on the torrent sites that put up pirated material.

And I agree--it's just like saying "Well, I found this car/bicycle/piece of land and nobody was around, so I just assumed nobody owned it..."

The presumption should be that somebody owns it and you have to get permission. But Google and libraries and so on think that's too costly. They've convinced Congress. And we don't have the deep pockets.
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[User Picture]From: blueeowyn
2011-09-14 06:20 pm (UTC)
I think that Google (et al.) who want to scan books should have to pay an independent group a fee to research EACH book that they want to scan and *IF* the research group (paid on a by-the-hour for searching fee) can prove that the work is no longer under copywrite (e.g. find the death notice of the proven author and the death is >70 years), then it can be scanned and put up. If the research group can show WHO has the copywrite, then Google (or whomever) should get a contract (in writing) to publish. Having such a company would provide some jobs as well.

Interesting, I was wondering what was going on with this when I read about the death of the founder of Project Gutenberg (whose work I fully support since they focus on truly public domain works). http://www.theregister.co.uk/2011/09/09/michael_stern_hart/
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[User Picture]From: e_moon60
2011-09-14 06:33 pm (UTC)
I think that's an excellent idea. Unfortunately, Congress's approach was to create another registry (other than the Copyright Office) where the copyright holder would have to register their work--for a fee each time--so that those who wanted to use the work could (for free) peruse it. I think we got that one squashed. But you see, Google is big and has deep pockets, so of course it should not be required to do anything difficult or expensive.
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[User Picture]From: hugh_mannity
2011-09-14 06:24 pm (UTC)
And here I was thinking that Google's corporate motto was "don't be evil".

I guess they're not using the word to mean what the rest of us think it means.

I agree with keristor on the orphaned books concept. A book is either in copyright, or not. If the author or their heirs can't be found, then too bad, the work cannot be reproduced until the copyright expires.

I also think that this is grounds for a class action lawsuit by the authors of the purloined works.
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[User Picture]From: e_moon60
2011-09-14 06:33 pm (UTC)
There is a suit (referenced in the post with a link to an article about it) but I didn't know about it until now.
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[User Picture]From: gifted
2011-09-14 06:47 pm (UTC)
This is downright angering. I am getting sick of these corporations acting above the law, and doing whatever they feel is necessary to increase their user base and income. It's bad enough that Google underhandedly stores and markets their users' "private" messages and personal information, but to blatantly steal the efforts and livelihood of other people's businesses and services to profit themselves is abhorrent!

Who on earth monitors these massive internet companies, and why does the individual have to make a fuss, only to find that nothing is done about their illegal practices? I think it's about time the organisations who are paid to keep our laws stopped being spoon fed by these corps and their big dollars, and started protecting their people.

I will not be supporting these copied works in any way. I stopped utilising Google and certain others a while ago after witnessing their tactics; this only confirms that I made the right decision.

Is it ok if I link to this?
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[User Picture]From: e_moon60
2011-09-14 06:54 pm (UTC)
Sure, you can link to it.

As for why they're not monitored better...money talks and enough money talks loudly. We have a Congress devoted to large corporations as being far more important than individuals (it's not just Google they coddle.) We have a Supreme Court now dominated by pro-corporation justices.

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[User Picture]From: wldrose
2011-09-14 06:49 pm (UTC)
It took my mother longer than you to get most of my Stepfathers work taken out of google docs and we still see parts of it all the time. Sadly the orphen problem is big for him since many of the newspapers he worked for are dead and gone and when he wrote for them they had the rights so we can do nothing.

She did slap down a large Ivy League Press that published a whole story of his in a textbook with out permission. Not only him but 2 other writers at the New Yorker, whos literary estates were held by older widows many who didnt have the advantage of an active agent. The head of the press said We should be honored to be in the book. Mum said "XX,XXX dollars or pull every damm book after being dragged though the streets" They paid up for her and the others who where her friends. and if they hadnt been greedy/lazy it would have been X,XXX dollars.

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[User Picture]From: e_moon60
2011-09-14 07:06 pm (UTC)
Good for your mother! (lifts the glass high in salute!)
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[User Picture]From: controuble
2011-09-14 07:24 pm (UTC)
The answer to Google should have been, "Not only no, but HELL, NO."
What are our courts coming to? If an individual had proposed something like this they would have been laughed out of the courtroom.

Judge Chen's ruling seems to say, "No, you can't do it this way, try again." instead of incorporating a cease and desist order. WTH?!
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[User Picture]From: e_moon60
2011-09-15 04:46 am (UTC)
Chen's the best we've seen so far, though.

I could not believe the first judge to see the case didn't say to Google--"You're breaking the law. You're liable. Cease now and do not try this again. And by the way? You're paying everyone's legal and court expenses."
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[User Picture]From: martianmooncrab
2011-09-14 07:26 pm (UTC)
If these school libraries are so intent on violating the copyrights of authors and publishers, they should start with their own book imprints, and making all of their current and OP backlists free to all.
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[User Picture]From: e_moon60
2011-09-15 04:46 am (UTC)
Well, gee, then they'd have to write books, not just use them.
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[User Picture]From: b_twin_1
2011-09-14 08:32 pm (UTC)
This makes me seethe and I'm not even an author!!
Hope it's okay that I link to this...

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[User Picture]From: e_moon60
2011-09-15 04:46 am (UTC)
By all means, link away.
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[User Picture]From: tranceanasazi
2011-09-14 08:42 pm (UTC)
*just.....EYES Google and ALL those involved in the BULLSHIT Google's pulling*Wow.Just.....WOW.That's absolutely disgusting of Google and it's cohorts to be doing. I know that,while I'd absolutely LOVE LOVE LOVE to get my hands on a copy of the very first Wolf Walker series,I would NEVER EVER stoop to pulling the sort of low blow stunt Google's pulling.I'd either hope to have the luck of the Powers That Be in finding a copy in a used book shop,or a dusty copy in either a library or the local Coles or whatever mall book store available to get lost in the isles of.Goddess Tits on a fucking bull,Google's got some damn nerve.
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[User Picture]From: tranceanasazi
2011-09-14 08:47 pm (UTC)
To continue,because I hit the post button a bit too soon,I roleplay on a couple of different sites,sometimes with characters taken from various books like the Valdamar series,and some that are purely original that I know I'd HATE to see on some stranger's site as available for a price.I've actually got about a 400 page read that a friend recently mailed to me that was the transcript of a vampire roleplay between me and a friend because they didn't want me to loose the only existing copy.HOPEFULLY Google and their LEECHES can be stopped dead in their tracks SOONER rather than way too late.
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[User Picture]From: harvey_rrit
2011-09-15 12:01 am (UTC)
This is one of the reasons I don't go armed. They give the maximum sentence to someone who's obviously not sorry.

Sooner or later some parasite wannabe would declaim sanctimoniously that "Information wants to be free!"

Unless I was suffering from an aberrant moment of saintliness, I would sure as Hell aim for the abdominal aorta and say, "So does blood-- as you see."

(Not a bad metaphor, come to think of it. Once it's "free", it stops being produced.)
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[User Picture]From: draconin
2011-09-15 12:30 am (UTC)
When I first saw this I found it hard to believe that they'd even consider doing it... and then saw that the law was doing absolutely nothing to stop it and boggled even more! I just don't understand why such a clear violation is being tolerated by the lawmakers.

They've got a couple of my older textbooks listed on there too. No content, since they've been out of print for so long, just place holders. Considering their small print run and how long it's been since they were published I doubt they'll find one to scan! :-) If they do then I'll go through that process you mentioned to refuse access.

Edited at 2011-09-15 12:30 am (UTC)
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[User Picture]From: e_moon60
2011-09-15 04:44 am (UTC)
Yeah...I could not believe that the first judge in the Google case didn't just read the copyright law to them and say "You're breaking the law. Stop it at once."

But we've had pro-business appointments of federal judges for a long time now.
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[User Picture]From: wouldyoueva
2011-09-15 03:46 am (UTC)
Preach it! I get hit with this because people think just because Jack is dead, his books are fair game, but our kid and I need that income. And chasing down these violators are like playing Whack A Mole--move against them and find that a few weeks later, the OP stuff is back online, or on another site.

Hope that suit results in some painfully large fines.
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[User Picture]From: e_moon60
2011-09-15 04:43 am (UTC)
I hope the suit results in both the annihilation of those illegally obtained scans and fines.

And I hope your income does not suffer too much. It's not just the dead that some people think are fair game. Just about every writer's had stuff pirated, and it's a full-time job to hunt it down and try to get it off there.
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From: dstemple
2011-09-15 04:07 am (UTC)

usurped copyrights

So I must ask - Baen has "The Deed of Paksenarrion" available as an ebook; is this legit? I've given away multiple copies of the tome over the years and like the thought of having it on my Kindle (and I need to buy another printed copy soon.

I abhor what Google has done in violating copyrights for so many; they have violated their own credo of "do no evil".
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[User Picture]From: e_moon60
2011-09-15 04:38 am (UTC)

Re: usurped copyrights

Yes. Baen and I have publishing contracts between us, and my agent keeps an eye on them. And they're paying me royalties. So what you see at Baen is something we've agreed to. (There was a kerfluffle years ago--more than ten--but it's long gone and settled now.)
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[User Picture]From: e_moon60
2011-09-15 03:59 pm (UTC)
Please note the EDIT in the original post, which adds specific information about a supposedly "orphan" work...it took the Authors Guild two minutes or less to locate the author and the author's agent--neither of whom knew about, or were pleased to find out, that the author's work was considered an "orphan" an in the list to be handed out by Hathitrust.

Here's a link to that story again: http://www.teleread.com/copy-right/authors-guild-finds-author-of-orphaned-work-in-just-two-minutes/
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[User Picture]From: forestcats
2011-09-15 05:59 pm (UTC)

Call a thief a thier!

Agree 100%. Are there any congressional people who have a lick of sense that we can write to for their support?

Edited at 2011-09-15 06:01 pm (UTC)
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[User Picture]From: fabricdragon
2011-09-16 12:49 am (UTC)
do you mind if i link to this post? do you have a prefered platform i should link from? or use this one?
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[User Picture]From: e_moon60
2011-09-16 03:49 am (UTC)
Go right ahead and link to it.

I'm also posting comments on the Authors Guild website (I'm not a member of Authors Guild--I'm in SFWA and Ninc and on some private writers' listservs.

I've been feeling puny for a few days, so I'm not checking back as often as I might otherwise.
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[User Picture]From: litch
2011-10-15 11:10 pm (UTC)

Improving copyright

This was published recently in the Chronicle of Higher Education as a suggestion on how to improve copyright.

The summary is the author suggest a return to the more formal procedure for registering and receiving copyright that existed before 1988, to set some hurdles so that people have to make an effort to get it to free more work for the public domain and reduce the number of orphan works.
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[User Picture]From: e_moon60
2011-10-16 11:57 am (UTC)

Re: Improving copyright

Yes, I read the article. I oppose everything in it.

Why should authors "have to make an effort to get it" more than they do now? Why should more work be "freed for the public domain?" Why should others than authors be allowed to make a profit on their work without including them? Just because they want to, like Google? I don't think so.

The orphan work argument is specious. This approach will create more putative "orphans" by calling orphan--or rather "free for the public domain"--anything that a writer doesn't protect by jumping through all the new hoops (and even then, not lifelong.) The evidence is that when authors do the searching, many orphan works aren't orphaned at all...but when those who want to profit by selling others' work do the searching, many things are declared orphan that aren't. The only reason for the furor over "orphan" works is that someone who didn't write them wants to make use of them for profit.

The argument for copyright term limitation based on profitability for the original publisher is specious. Evidence from works published in 1934 is irrelevant, since authors can now (as they could not then) profit from their own backlists while keeping work available to the public by self-pubbing online.

It's the same old story of thieves who want what someone else has so they can profit from it. Either they want the free entertainment, or they want to sell the works themselves.

Why should writers have long-term copyright without having to renew every work within a narrow window of opportunity? Because they did the work. And because they need to eat just like you do.

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