Apr 20, 2013
Now that both Boston bombers have been caught and the nine-days’ wonder that permeated the airways 24/7 has been stilled, perhaps we can pause a moment to remember the nameless hundreds of thousands of innocents our bombs have slaughtered over the past 12 years.
If you don’t want your heart broken, don’t go HERE to view seven of the 11 children—babies, really—slaughtered in the “fierce battle” between U.S.-led forces and the nefarious Taliban a couple of Sundays ago. And this was no anomaly. “Collateral damage” is practically the watchword of the “wars” we have fought in Iraq, Afghanistan, Pakistan, Yemen, Indonesia, Sudan, Somalia, etc., etc., over the past decade.
What ought to have been a police action—the meticulous pursuit and capture of individuals involved in an international conspiracy of religious fanatics—has instead turned into Apocalypse Now, with death raining down upon the general populations of a large slice of the world; with the abandonment of due process, the laws of war, and any human decency; with the revival of medieval confinements and tortures; and with no end in sight of vastly expensive conflicts that fill the pockets of the corporatocracy and bankrupt the public coffers.
It is not surprising that a young and impressionable boy, helplessly watching the slaughter of babies, brides, and thousands of others of his co-religionists should be led to take the awful action that Dzhokhar Tsarnaev allegedly took last week, cruelly wounding 170 people and ending three innocent lives, his brother’s life and, effectively, his own. It is only surprising that more young men and women have not done the same.
Apr 17, 2013
Let’s forget about using the term “Used” in connection with digital music, movies, or books. Let us stipulate to the fact that a digital file remains in its original pristine condition, unless it is corrupted in some way, in which case it usually become useless.
And let’s forget about allowing anyone to use the term “Licensed” when referring to the purchase and sale of digital media. When I buy a book, I buy it, I don’t license it, and I don’t care if it comes in a parchment scroll, a bound monograph, or a digital file.
And then let’s establish the finding that the First Sale Doctrine applies to copyrighted material regardless of its embodiment—parchment, paper, or bits. There are plenty of ways to insure security against copyright infringement for eBooks. Look at Amazon, which has a pretty impressive method in place already, and has been loaning books through its Prime service since 2011. If there has been any successful or widespread abuse of that system, I haven’t read about it.
If we don’t establish the First Sale Doctrine as applying to digital media, public libraries could lose the right to loan eBooks. And since eBooks will soon be the primary embodiment of books, public libraries could lose their relevance, their funding, and their existence. This must not be allowed to happen, for the sake of our democracy.
Apr 07, 2013
The trial court decision on Capitol Records, LLC, versus ReDigi Inc. was handed down in March, and the news is not good.
Read the decision HERE and google “Capitol ReDigi” to learn the details on this case. This piece addresses what I see are the dire implications of the decision, if it is not overturned on appeal.
The First Sale Doctrine, recognized by the Supreme Court in a 1908 decision, establishes the right of the purchaser of a copyrighted work (book, music, movie, painting, etc.) to dispose of that work in any manner they wish without requiring further compensation to the original copyright holder (typically the publisher of the work). The purchaser may loan, resell, give away, destroy, or do anything else they want with the work except copy it.
The First Sale Doctrine enables libraries to purchase books and subsequently loan them to their patrons at no cost or compensation to the original seller. In the first entry in this series, I made the argument that physical books were on their way to joining the Dodo bird and the dinosaurs, owing to a number of factors. One may say the same for all of the copyrighted materials noted above, and not just books. The world is moving inexorably to digital manifestations of music (iTunes); movies (downloads, streaming); and books (eBooks). The economics in the case of the latter are simply too irresistible. No trees to cut down, paper to manufacture, type to set, pages to print, or heavy books to bind, box, and ship all over the world. And one could say the same for CDs (vinyl and tape having long since passed from the scene) and DVDs.
Judge Richard J. Sullivan, in handing down his decision in Capitol, failed to recognize this new digital world, and rejected ReDigi's business model on the basis that it violated copyright. Consideration of the First Sale Doctrine, given a violation of copyright, was therefore not reached (“Because the Court has concluded that ReDigi’s service violates Capitol’s reproduction right, the first sale defense does not apply to ReDigi’s infringement of those rights.” (p.11)) Judge Sullivan needs to learn the difference between File Copy and File Move.
So let us imagine a not-too-distant and all-too-likely future when physical manifestations of books have become as rare as hen’s teeth, found largely in museums and private collections. And let us imagine the Capitol decision has been applied to digital manifestations of books (as it more or less has been by default in this decision). In this scenario, libraries will lose their First Sale Doctrine right to loan books. That is to say, they will lose their reason for being. Already, major publishers refuse to sell eBooks to libraries (e.g., Simon and Schuster), charge exorbitant prices when they do (e.g., Random House), and/or place draconian restrictions on lending (e.g., HarperCollins). And all of them that do sell to libraries insist on a sales/pricing/distribution model which utterly fails to take advantage of the revolutionary possibilities afforded by digital media, to everyone’s loss: their own, their authors’, and their readers’ (see Part II of this series).
No publisher will ever be sorry to see a library close. This wrongheaded decision may very well enable them to close them all.
Mar 31, 2013
How is it we can live with ourselves while children die of preventable disease, starvation, and abuse? How is it we can live with ourselves when in our own land of plenty men and women are forced to work for less than they need to live decently, by employers who reap billions from their labor and who live in luxuriant circumstances unimagined by the most profligate potentates in history? How is it we can live with ourselves in a country which every day massacres innocent women and children in a misguided, dollar-driven assault on the whole world? How is it we can live with ourselves in a society where we need full-time armed guards patrolling our school corridors? How can we live with ourselves when we see the deficit rising to over a trillion dollars a year and the climate deteriorating in front of us and not only do nothing to ameliorate these impending train wrecks, but instead do everything we can to bring them about as soon as possible? How can we let, how DO we let, all of this happen, when we have the power to stop it?
We are a “not caring” people, not an “uncaring” people. However, is there, finally, any difference between the two? I think when someone figures this out, how we can tolerate these states of affairs, indeed even consciously and willingly abet and worsen them, we will have discovered the defining attribute of our species. Because no other species has this awareness and should it be miraculously visited upon the dog, the elephant, or the dolphin, who could imagine their being co-conspirators in such enormities?
Mar 21, 2013
This is a big deal.
The Supreme Court recently decided a case which has a direct impact on the First Sale Doctrine I have been addressing in this series. And it’s good news!
Kirtsaeng v. Wiley (PDF) involved a Thai student studying in America, Supap Kirtsaeng, who discovered that his expensive textbooks were for sale for much less back home in Thailand. He had relatives buy a slew of them there, imported them to the U.S., and sold them on eBay, netting himself a bundle. One of the text publishers, John Wiley & Sons, objected, and a long court case ensued. I am not sure how Kirtsaeng ended up being the plaintiff; however, the bottom line is that he won, in a case in which interpretation of the First Sale Doctrine played a pivotal role.
In brief, the court ruled “. . . that to impose geographic limits on the first sale doctrine would make no sense. . . .”
In my view, to impose limits on the First Sale Doctrine because of the medium of delivery would be equally senseless. A book is a book, regardless of the manner in which it is delivered to the buyer.
Unfortunately, Kirtsaeng does not explicitly determine this. We must wait for Capitol Records v. ReDigi (see Part XIII of this series) to take the next step toward that determination. However, this ruling is a big first step to establishing First Sale protection to buyers of eBooks. And when that is done, libraries will be empowered to purchase eBooks via any route available to them, including via personal purchase, and lend them to their patrons. A bright day may finally be dawning.
Read more on the case and the decision at this NPR page.
Mar 18, 2013
I closed out my series on “The End of Libraries” last June, having said all I had to say on this sorrowful situation. Other than the fact that Amazon has since almost doubled the number of titles it now offers for loan through its Prime service (310,948 as of today), there has been no substantive change in the status quo in the eBook lending world. That situation may be about to change.
In an article in Communications of the ACM (March 2013, v56#3) praiseworthy for its clarity of style and explication of legal issues, Professor Pamela Samuelson (UC/Berkeley) has written about the case of Capital Records, Inc. v. ReDigi, Inc. ReDigi has an online business reselling music originally purchased from iTunes. Capital Records is challenging the legality of that business on copyright and other grounds.
The outcome of this case, which at present is at the trial level with at least two appellate levels to come, will determine the manner and extent to which the First-Sale Doctrine should be applied to digital media. This doctrine, which I mentioned in Part XII of this series, confers on the first purchaser of a copyrighted item (book, video, music) the right to loan it, give it away, or resell it without compensation to the original seller. The First-Sale Doctrine, in essence, makes libraries possible.
Capitol Records v. ReDigi will determine whether this doctrine should be applicable to digital, as well as physical, media. It is a case which, in Professor Samuelson’s understated words, “really matters.” She has kindly allowed me to post a PDF of her article, which I encourage you to open and read.
The trial judge heard oral arguments last October; his decision should be imminent. Though the losing litigant will almost certainly appeal, a well-considered and well-articulated opinion will be difficult to overturn. Let’s hope the trial judge understands the importance of the task before him.
Feb 28, 2013
Tomorrow sequestration begins, and today the market flirted briefly with closing at an all-time high. Go figure. Apparently Wall Street loves the chaos, the upwardly mobile unemployment rate, the accelerated deterioration of our infrastructure, and the thousands of laid-off teachers who will shortly join the 300,000 who have been laid off since June 2008.
As always, the coming economic storm will hit the poor the hardest, and more of us hanging onto the middle class by our fingernails will be joining them. The inequality gap will increase even more, if that is possible.
Will this benighted country ever find its way back to its ideals? Can our world do without the beacon of our example? Have we become incapable of producing a man, a woman, or an idea that can bring us together in common cause to save our own souls?
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