“How Copyright Protection Makes Books Vanish”

Last spring The Atlantic ran a story with the provocative subtitle replicated above. It highlights a striking graph from law professor Paul Heald, illustrating some of the downsides of copyright protection for book access:

Amazon pub domain.png

Here’s an excerpt from The Atlantic, which in turns quotes Heald on the significance of this data. All very interesting, if preliminary:

The above chart shows a distribution of 2500 newly printed fiction books selected at random from Amazon’s warehouses. What’s so crazy is that there are just as many from the last decade as from the decade between 1910 and 1920. Why? Because beginning in 1923, most titles are copyrighted. Books from before 1923 tend to be in the public domain, and the result is that Amazon carries them — lots of them. The chart comes from University of Illinois law professor Paul Heald. In a talk at the University of Canterbury in March 16, he explained how he made it and what it shows. He said:

This is super exciting, interesting preliminary data, I think. I had one of my students write a computer program that would crawl through Amazon.com and pull 2,500 fiction titles at random. … The findings are absolutely fascinating.

We broke these out by decade. … You would expect that if you can crawl through Amazon looking at only new books and only books sold by Amazon — so these are not used books, these are not sold by Amazon associates, this is what’s in Amazon’s warehouses — of course, the biggest number of books is from the decade 2000-2010. That’s what you’d expect; they’re more recent, more popular. Drops off really quickly for books in the 1990s, 1980s, 1970s, ’60, 1950, 1940, 1930 — here’s the point in time where books start falling in the public domain. Suddenly it goes up and up and up. There’s as many books [that] Amazon is selling brand new right now from the 1900s to 1910 as from the 2000s to 2010. You go all the way back to 1850 — there’s twice as many books from the 1850s being sold on Amazon right now as the 1950s. So this sort of confirms the notion that there’s some sort of positive public-domain effect …

Heald says that the numbers would be even more dramatic if you controlled for the number of books published in those years, because there are likely far more books published in 1950 than in 1850.

Apple v. Samsung — no injunctions for Samsung either (at least in Europe)

Samsung announced today that it will no longer be seeking injunctions against Apple’s iphones in European courts based on claims that those phones infringed Samsung’s “standards essential patents” covering certain 3G cellular networking technologies. Samsung says that it’s doing so for the good of consumers. Um, maybe. A more likely explanation is that it fears possible action by EU antitrust officials, who are increasingly wary of injunctions in patent cases involving patents that are “essential” to industry standards.

This is an important development in the Apple/Samsung fracas, because it deprives Samsung of a bit of leverage that it thought it had. Stay tuned.

Apple v. Samsung — judge refuses to block Samsung smartphones from market

Having won a $1.05 billion jury verdict against Samsung, Apple sought to have the court issue an order blocking a number of Samsung smartphones from the U.S. market. Today, Judge Koh refused Apple’s request. Judge Koh noted Samsung’s claim that it has modified its phones in a way that “works around” Apple’s patents (i.e., by providing the same or similar functionality, such as “pinch-to-zoom”, but in a manner not claimed in Apple’s utility patents). And in any event, in the judge’s view, Apple had not presented sufficient evidence to prove that its patented features drove consumer demand for Samsung’s phones. Absent such evidence, Judge Koh stated, Apple’s remedies for Samsung’s patent infringement would be limited to money damages.  Here’s a nugget from her decision denying Apple’s request for an injunction:

“The phones at issue in this case contain a broad range of features, only a small fraction of which are covered by Apple’s patents. [. . .] Though Apple does have some interest in retaining certain features as exclusive to Apple, it does not follow that entire products must be forever banned from the market because they incorporate, among their myriad features, a few narrow protected functions.”

So, what happens next?  In the short term, more fighting. Apple is asking the judge to increase the jury’s damages award, while Samsung is looking to have it reduced or thrown out altogether. And still to come is a second Apple U.S. lawsuit against Samsung, aimed at some newer phones it says infringe Apple patents. And there are multiple lawsuits abroad.

In the longer term, the question is whether Apple and Samsung can make a deal, as Apple recently did with giant Taiwanese smartphone maker HTC.

But here’s the most important part — as Apple wins court victories, Samsung is winning in the marketplace. Samsung recently overtook Apple as the world’s top smartphone maker. In the third quarter of 2012, Samsung sold 55 million smartphones worldwide to Apple’s 23.6 million, which gave Samsung 32.5 percent of the market versus Apple’s 14 percent.

Has Samsung been slowed by its courtroom woes? Not yet.

Google vs. Belgium

We’ve noted the battle between Google and European newspapers, who don’t like Google News and think its aggregation service is hurting their business. In Belgium, it appears that a solution has been found, at least for now:

Google has settled a long-running dispute with Belgian newspapers over copyright complaints. The case dates back to 2006 when a group of publishers sued Google claiming the use of headlines and snippets of Belgian newspaper articles in Google New amounted to copyright infringement, and so did providing links to cached copies of articles in its web search results. After some back and forth, a Belgian court sided with publishers, Google lost its appeal and in September 2011 it removed all links to compy with the ruling.

Since then the two parties had engaged in talks to reach the “most reasonable” solution and now they’ve dropped all litigation under a new deal. In short, Google isn’t admitting to copyright infringement and says it isn’t paying publishers for their content, but rather will collaborate with them on a range of initiatives to increase their revenue. That includes purchasing millions of dollars of advertising space in the papers, integrating Google services into the publishers’ content, and assisting with distribution on mobile devices.

Google will start referencing Belgian newpapers in its news aggregation service again, but cached content on web searches is still off limits. The company is also paying all the legal fees for Belgian papers, signaling it had the losing hand in this arrangement despite framing it as a win-win.

Copying as Brand-Building

Gangnam Style is now the most-viewed video on YouTube in history. Along the way, Psy tolerated dozens and dozens of Gangnam knockoffs, copies that ordinarily would fall afoul of copyright law.

Over at Techdift, Glyn Moody notes that this “relaxed attitude” toward copyright infringement has helped make him very rich. This underscores an important point about the upside of copying. Copies can serve as powerful advertisements, and can help build a brand that can then be monetized in many ways. Copies are particularly potent ads because they are authentic efforts by consumers and, in this case, fans, rather than the work of professionals paid to make us think we want Product A or B.

The many copies of Gangnam Style fit this model perfectly, and helped build the viral juggernaut that made a formerly-unknown Korean singer into a house hold name around the world.

Here’s Techdirt’s take:

Ah yes, the maximalists will retort, this free-and-easy, laid-back approach [to copying] is all very nice, but it doesn’t put food on his table, does it? If you want to make a living from this stuff, you’ve got to enforce copyright to stop all those freeloaders ruining your business. Well, maybe not:

With one song, 34-year-old Park Jae-sang — better known as PSY — is set to become a millionaire from YouTube ads and iTunes downloads, underlining a shift in how money is being made in the music business. An even bigger dollop of cash will come from TV commercials.

From just those sources, PSY and his camp will rake in at least $8.1 million this year, according to an analysis by The Associated Press of publicly available information and industry estimates.

The AP story quoted above goes on to give a detailed breakdown of where that money comes from. Interestingly, it’s mostly from things not directly connected with either his music or video:

It is television commercials that are the big money spinner for the most successful of South Korea’s K-pop stars. PSY has been popping up in TV commercials in South Korea for top brands such as Samsung Electronics and mobile carrier LG Uplus.

Chung Yu-seok, an analyst at Kyobo Securities, estimates PSY’s commercial deals would amount to 5 billion won ($4.6 million) this year.

This is yet another great example of how artists can give away copies of their music and videos to build their reputations and then earn significant sums by selling associated scarcities — in this case, appearances in TV commercials. Now, not every musician may want to take that route, but there are plenty of other ways of exploiting global successes like Gangnam Style — none of which requires copyright to be enforced.

More Hobbits

"Age of the Hobbits"We’ve earlier written about both Hobbits and the genre of “mockbusters”–movies that look and sound a lot like another famous (or likely to be successful) film.  For the most part these mockbusters, many made by an outfit called The Asylum, have been released despite the angst Hollywood studios had over titles such as American Warships and Transmorphers: Battle of Man.

But recently, the legal tide turned. Warner Bros, New Line and MGM sued The Asylum on the grounds that its mockbuster Age of the Hobbits infringed on their trademarks in the forthcoming Peter Jackson film The Hobbit: An Unexpected Journey. A California judge agreed. As the Hollywood Reporter explains,

The Asylum is known for its low-budget films that often trade on the hoopla surrounding major Hollywood releases. Past films from the company include 2012 Doomsday, Transmorphers: Fall of Man, Battle of Los Angeles and American Warships — which originally was titled American Battleship until Universal sued to have it changed shortly after that studio’s Battleship hit theaters. The movies have gotten underneath Hollywood’s skin over the years, but thanks in part to a 1993 court ruling over a rip-off of Disney’s Aladdin, many believed there wasn’t much legal recourse.

Age of the Hobbits was scheduled to be released Tuesday; The Hobbit hits theaters Friday.

In his decision, Gutierrez pointed to a trademark registration from the plaintiffs on “Hobbit,” covering “printed matter, namely posters, art prints, postcards” and says that it covers Asylum’s use of the term in its posters promoting its own movie. The word “Hobbit,” however, isn’t covered in any trademark registration as a movie title, leading the judge to consider whether the mark is distinctive and has developed a secondary meaning in the marketplace.

The judge was impressed with the evidence of consumer association on “Hobbit,” including a survey conducted by plaintiffs of randomly selected respondents. “The survey results showing that nearly 50 percent of respondents associated the term ‘Hobbit’ with the trademark holder is thus persuasive evidence that the Hobbit Marks have acquired secondary meaning,” he wrote.

After determining that, Gutierrez moved on to the issue of likelihood of confusion. The Hobbit’s makers can’t claim exclusive rights to fantastical images of swords, mythical creatures and the like, but the judge saw the imagery in the posters in connection with the use of the term “Hobbit” and said that “one is immediately struck by the similarity.” Even the slight difference in titles isn’t enough to avoid confusion, he added.

As for Asylum’s contention that “Hobbit” is separate from the J.R.R. Tolkien universe, the judge didn’t buy it.

“Asylum’s argument appears to ignore the connection between the term used to describe Homo Floresiensis and Tolkien’s hobbits,” the judge writes. “Asylum treats the use of the two terms as completely unrelated, but the terms are in fact closely related: Scientists gave Homo Floresiensis the nickname ‘Hobbit’ because its appearance resembled Tolkien’s hobbits, as described in his novels. … Given that Homo Floresiensis received the nickname ‘Hobbit’ specifically because of its resemblance to Tolkien’s fictional hobbits, the Court finds Asylum’s argument that its movie is wholly unrelated to Tolkien’s work because it is about Homo Floresiensis to be disingenuous.”

The law on the books vs. the law on the street — the case of Bikram yoga

Bikram Choudhury is the founder of something known as “hot yoga”, which is an arrangement of yoga poses that have been known for thousands of years and performed in a very hot room. We’ve posted on Bikram before. Hot yoga has made him a very rich man. And copyright law has helped keep him that way.

Copyright law? Yup. Bikram claims a copyright in his particular sequence of yoga poses. If that seems strange to you, you’re right. Bikram’s copyright claim is complete bunk. The U.S. Copyright Office has ruled that Bikram’s routine is uncopyrightable — the poses of which it’s composed have been in the public domain forever, and the sequence is uncopyrightable exercise, not copyrightable dance. But Bikram keeps suing people. And because he has a lot of money and at least as much chutzpah, he keeps winning. Not because he wins his legal claims. But because he bombards his opponents with lawyers, and he makes them spend a ton of money to defend themselves. Eventually, they give up. It’s just not worth it to fight.

The latest Bikram target to wave the white flag is Greg Gumucio, the owner of rival hot yoga studio “Yoga to the People”. Gumucio was offering a product a lot like Bikram’s, a lot cheaper. But now Gumucio says he will change his offering.

Which points out a problem, one which isn’t limited to copyright law, but is often illustrated by it. The law on the books is one thing. The law out on the street is another. Wealthy people often can use the law to extract what they want, even when the law doesn’t properly give it to them. Bikram doesn’t have a valid copyright in the Bikram sequence. But he might as well. Until he comes up against an opponent with equally deep pockets, the law means nothing.

The Nuclear Option

A few weeks ago the Republican Study Committee put out a report entitled  “Three Myths About Copyright Law and Where To Start To Fix It.” As many noted, this was a smart and unusual report, but as things turned out, its influence was quite short-lived. The report was retracted and vanished quickly from the RSC website.

Now, the staffer behind it has been shown the door. As the Washington Examiner reports

The staffer who wrote the memo, an ambitious 24-year-old named Derek Khanna, was fired — even before the RSC had decided on other staffing changes for the upcoming Congress. The copyright memo was a main reason.

Republicans are surprisingly close to the entertainment industry. For instance, Mitch Glazier, as a Republican House Judiciary Committee staffer in the late 1990s, played a key role in drafting GOP bills expanding copyright before cashing out to the industry. He now runs the Recording Industry Association of America, a $4 million-a-year lobby operation that fights for more government protection of record labels.

So Republican politicians, with their sensitivities to K Street and their general pro-big-business tendencies, are not eager to roll back the extraordinary government protection for Hollywood and Nashville. But free-market think tanks and writers are banging the drum.


Apple v. Samsung Redux

Yesterday in San Jose the great tech battle of the decade–Apple vs. Google Samsung– opened a new chapter. And in keeping with the holiday spirit, Judge Lucy Koh is asking for “global peace.”  From the San Jose Mercury News:

Urging the world’s largest smartphone makers to settle their differences, a federal judge said she will issue rulings aimed at resolving a multifaceted legal battle between Apple Inc. and Samsung Electronics.

“I think it’s time for global peace,” U.S. District Judge Lucy Koh told lawyers for the two electronics giants, during a court hearing Thursday in San Jose.

Koh appeared ready to trim a $1 billion jury verdict Apple won over Samsung Electronics this summer. She said over the next several weeks she would issue a series of rulings to address the many legal issues raised at the hearing.

Samsung is seeking a new trial or a reduction of the verdict that resulted from a lawsuit Apple filed in 2011. Apple, on the other hand, urged the judge to add millions more to the award and permanently ban the U.S. sales of eight Samsung smartphone models a jury in August said illegally used Apple technology.