Copyright Owners Have Other Legal Strategies To Protect Themselves

Copyright Violations

The Supreme Court's recent  Kirtsaeng v. John Wiley & Sons ruling  affecting first-sale doctrine and its legal ramifications Re intellectual property (IP) lends itself tangent to a previous topic A Legal Used Ebook Market? Who Would This Screw the Most? 

The ruling essentially says its ok for someone to legally purchase books cheaper overseas, then import and resell them in this country without the copyright holder's permission.

But, as we will discover, other legal strategies exist to compensate for copyright's weaknesses.

Hopefully this will add more intelligencia to the 'A Legal Used Ebook Market? Who would This Screw the Most? post.

From Lisa Shuchman  writing for Law.com:

Next Moves for IP Law after SCOTUS First-Sale Ruling

The U.S. Supreme Court's Kirtsaeng v. John Wiley & Sons ruling that a legally obtained copyrighted work can be imported into the U.S. and resold without permission from the copyright owner, even if it was manufactured and sold overseas, will have broad legal ramifications going forward, intellectual property attorneys say.

Industries that rely on copyright protection, such as book publishers, film and television companies, and software publishers, will begin operating differently. Lawyers will start testing alternative legal strategies that could give their clients the protections they thought they had under copyright law. Congress may try to pass new legislation to grant those protections. Meanwhile, other forms of intellectual property protection could be affected by the Court's ruling, as could U.S. international trade negotiations.

"This decision will have a large impact on law and business," said Shari Mulrooney Wollman, co-chair of the intellectual property practice at Manatt, Phelps & Phillips.

The 6-3 decision was prompted by a case involving Supap Kirtsaeng, a Thai student who imported lower-priced textbooks from Thailand and resold them in the U.S. to help pay for his studies at Cornell University and the University of Southern California. Textbook publisher John Wiley & Sons sued, saying Kirtsaeng's unauthorized importation and sale of its books amounted to copyright infringement, and that the "first-sale" doctrine — under which people who buy something may resell it without permission — does not apply because the books were produced overseas for sale overseas.

"This was the publishing industry's understanding of the law for at least three decades," said Anderson Duff, an attorney with Wolf Greenfield. "Everyone is pretty stunned."

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What Constitutes a Textbook? Reshaping the Traditional Academic Publishing Paradigm

What media textbook
should I use?

What constitutes a textbook? 

I have discussed the academic publishing environment numerous times in the past. Tonight we are tackling it from the digital viewpoint and what basic structural changes have occurred because of digital media AND what improvements have resulted --- or not. 

There is a video of the New Media Education Conference and some interesting and informative academic and digital related publishing links in tonight's post; among them is this link to the Center for Digital Research and Scholarship, which you may find interesting.


Vincent Racaniello writes this for Watching the Watchers:

New Media Publishing: Whither the Textbook?

The theme of a recent New Media in Education Conference held at Columbia University was how digital media has reshaped the traditional academic publishing paradigm. I participated in a session entitled ‘New media publishing: Whither the textbook?‘ in which four panelists spoke about their experiences in this area. I spoke about how I use podcasting, blogging, and online courses to teach the public about virology. Paulette Bernd discussed the iPad dissection manual she developed for use in the Gross Anatomy laboratory at the College of Physicians & Surgeons of Columbia University. Grant Ackerman detailed the Business School's integration of iPads in the MBA program and their use of the iBook as an extended learning resource. Mark Newtonrecounted how the Center for Digital Research and Scholarship partners with Columbia faculty to implement innovative digital tools and publishing platforms for content delivery and preservation.
 

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The Publishing Industry Shrinking + New Technology + New York 'Get-It-Doneness' = 29th Street Publishing

The app made by 29th Street Publishing for the
magazine Little Star, seen on iPhone and iPad

29th Street Publishing? Who the hell are they? What's their deal? Why are they in the WSJ news today? Why are they being mentioned on my blog today?

I'll tell you why --- they are birthing a new publishing model that will revolutionize magazine publishing 'one app at a time' as they say.

The goal is to help writers and editors communicate directly with their audience --- also, to pay writers fairly without compromising quality of the experience.

So, we will be talking about apps (one of my weaknesses - I can't visualize how they work all the time), specifically making apps more simple for non-tech freelance writer and indie editor types, serial content and monetizing said serial content more easily.

Damn, you got all that? I'm not sure I do - but its interesting stuff. For instance, this excerpt: 

"Finding a way to earn subscription revenue from digital platforms is a matter of survival for writers," said 29th Street’s Mr. Eskin.

Jackie Bischof writes this in The Wall Street Journal, Metropolis blog:

Pushing Editors Into World of Apps

The small startup 29th Street Publishing is quietly trying to revolutionize magazine publishing, one app at a time.

The Midtown-based company promises to take the technical wizardry out of app making, easing the pathway to subscription revenue for those with eager — if nonpaying — online audiences. 29th Street helps its clients, drawn largely from New York City’s deep ranks of freelance writers and independent editors, develop and maintain simple apps for serialized content. The staff also provides gentle nudges to get new editions out on time.

“It’s the combination of the publishing industry shrinking, the technology and the New York, ‘get-it-doneness’ right now that’s making [this model] possible,” said David Jacobs, a company co-founder. The goal, he explained, is to help writers and editors “own and communicate directly with their audience. Also to pay writers fairly without compromising the quality of the experience.”

Kevin Nguyen, editor of the website Bygone Bureau, has an app among the two dozen in development at 29th Street. He sees a tantalizing promise: generating revenue to pay his writers by mining material already available on his website, which offers essays on technology and the arts.

“I used to have a skepticism about repackaging things that have already been published,” he said. But part of it is a chance for readers to “support a publication [they] care about.” If the subscription base grows, Mr. Nguyen said he would consider offering articles available exclusively on the Bygone Bureau app.


Asking digital readers to pony up for essays, journalism and even poems — the Poetry Foundation’s monthly magazine will soon be sold through a 29th Street app — is no longer a fringe proposition. Major newspapers, including the New York Times, have recently embraced digital-subscription models.

Even among bloggers, who have typically published their work for free since the rise of the medium, there has been a new push into paid content typified by Andrew Sullivan’s new self-published website supported by $20 annual subscriptions. Maro Arment, creator of bookmarking software Instapaper, launched his own monthly digital magazine last year through Apple Inc.'s AAPL +2.78%Newsstand service with a $1.99 price tag per issue.

For the five apps released so far by 29th Street, Apple’s Newstand is the sole conduit to readers’ iPhones and iPads. That means the technology giant takes a cut of each sale, along with a per-subscriber fee paid to 29th Street that is negotiated with each publisher.

Mr. Jacobs met Natalie Podrazik at the blogging-software company Apperceptive, and the duo launched the 29th Street in 2011. Blake Eskin, former web editor of the New Yorker, joined the startup last year as editorial director.

“The idea was really for us to just start a company with a blank slate and solve a problem from scratch,” said Mr. Jacobs.

Mr. Eskin’s job is to guide writers and editors through the process of planning and filling a regularly released app, helping assess if there might be market to produce digital magazines that readers will actually want to pay for.

“This is [for] people who have to find a way to have the discipline and vision to publish something on a regular basis,” Mr. Eskin said. The ideal publisher isn’t “writing one very big thing but writing something serial.”

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A Legal Used Ebook Market? Who Would This Screw the Most?

Used ebooks may
be a coming

Who do you think would get screwed over the most if the powers that be navigated the legal maze, ironed out the fine points and actually established a used ebook market?

Make no mistake about it, selling used digital books commercially is not legal now.

Contracts, copyrights, digital rights, royalty splits, etc. have not been worked out yet --- Hell, these documents and agreements are barely in place for new digital content.

Readers (consumers), publishers, authors, retailers, etc. would all be affected --- but, who would probably take it on the chin the most?

You might be surprised. Maybe no one if they get the right negotiated clauses established.

Let's get into some scenarios and numbers with Jeremy Greenfield of Forbes:


What Happens to Publishers and Authors If a Used Ebook Market Becomes Legal?

Amazon has a patent to develop a market for used digital content. Apple has filed for a similar patent and ReDigi, a self-styled marketplace for used digital content, is currently embroiled in a legal battle with Capitol Records over the resale of digital music files.

Basically, it looks like a used ebook marketplace might become a reality.

For consumers, this could be very good news indeed. Imagine seeing on an ebook’s Kindle page a link that will take you to a sell page for the exact same product for half the price. Same ebook, same user experience, even lower cost.

For publishers, this would undoubtedly be very bad news.

Put simply, “This will wreak havoc with the business model,” said New York-based copyright lawyer Lloyd Jassin, adding, “this shows just how creaky the publishing business model is.”

The publishing business model is predicated in part on copyright law, which gives publishers the ability to control the scarcity of a piece of content, according to Jassin. Basically, by buying the right to produce and distribute a work, a publisher can control the number of copies out in the marketplace and monetize them accordingly. Under the doctrine of first sale, once a publisher sells that copy, it is relinquishing its rights to sell that copy again and whoever bought it can do so. That’s how it’s possible (and legal) to sell used copies of physical books.

In this scenario, the publisher (and author) get no compensation. If the same were true for the resale of digital goods, it could be devastating for publishers.

However, Apple‘s ebook patent and ReDigi’s business model, for instance, factor in these fears. Under their systems, publishers (and, perhaps, by extension authors) would get a piece of the resale.

“If the publisher can’t control the resale of a book but they get compensated, perhaps that’s good enough,” said Jassin.

But what about the authors?

There are often provisions in publishing agreements which provide for a split of proceeds resulting in fees from licensing or from any other profits associated with the work, a lawyer who specializes in ebook contracts who did not want to be named, told me.

“There are potentially catchall licensing agreements in publishing contracts that might apply to a resale,” the lawyer said, adding that if not, “authors may now want to negotiate a provision for that purpose.”

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Sixty Years of Literary Agenting



Sterling Lord

Is sixty years of performing successfully as a literary agent enough to make you a literary lord? It is if your name is Sterling Lord (love that first name, too).  

In a guest article Sterling did for Publishing Perspectives, he gives us an intriguing insight into how literary agents worked before the digital tsunami and how he personally has adjusted and is presently working at the ripe young age of 92.  

His goal has always been to help the writer and the writer’s career first and foremost. He believed (and still believes) by doing all he possibly could to ensure his client’s best interests would produce the by-product of success for himself. 

I would love to believe that agents with this integrity exist today --- but, I seriously have my doubts --- If they do exist they are rare and in the minority. I just have this gut feeling that most of today’s agents put their own bottom line first and their client’s careers second. 

Now, big publishers are another, but simpler, story --- they had clearly (before the digital onslaught) already jumped from mentoring writers to grabbing the fastest bucks.

I think you will truly enjoy reading Sterling Lord’s perspicacity into publishing:

Sixty Years of Sterling Wisdom from the “Lord of Publishing”

“Publishing has come to resemble less the selling of paintings or other creative work and more that of carpets or refrigerators.”

What have I learned from my long experience? What wisdom can I impart? Sometimes it’s the unanticipated moments that clarify and offer a larger meaning.

That happened for me on a sunny day in the late spring of 2009 when I was hailing a cab at Lafayette Street and Bleecker in Manhattan, half a block from my office, to take me uptown to a luncheon appointment. The first empty taxi saw me, stopped, and I hopped into the back seat.

The cabbie was a Middle Eastern man in his late thirties or early forties, and as we headed up Park Avenue South, which at midday is like traversing quicksand on rollerblades, we engaged in conversation.

We were about up to 40th Street when, emboldened by our conversation, the driver said to me, “Excuse me sir, but may I ask you a question? This may sound naïve, but I’m relatively new to the city. How do you get rich in New York?”

I paused for a few moments to think and then said, “What you should do as early in life as you can is find an occupation or line of work in a field that really interests you. If you get involved and become committed and stay with it, you can live a long time and enjoy it, and have a rich life.”

He was probably talking about money and I about personal reward, but he seemed to understand.

After stepping out of the taxi, I realized I had given him a two-sentence synopsis of my life. For seven decades, my work has sustained me emotionally and spiritually. It carried me through four divorces and periodic difficulties in business. It enabled me to work with and be at ease with men and women of talent, influence and status.

As the world has changed around me, my goal as an agent has remained the same: to help the writer advance his or her career, rather than just to increase my personal income. If I did the former successfully and chose my clients well, I assumed the latter — the personal income — would follow, and it has.

I realized, shortly after starting my literary agency in 1952 and after making a few sales, that my knowledge of what a New York literary agency does and how it works was very thin. Yes, an agent sells books to book publishers and articles and short stories (not much anymore) to magazines, but the day a friend who was editor-in-chief of all the Time Life magazines told me he didn’t know what an agent did, I began to think.

The agent has to know good writing and what is a good, interesting-to-the-publisher idea at that moment in order not only to judge what he can sell and what he can’t, but also because often writers tried and untried will eek his advice. And he must know.

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Publishing and the Paper Industry

Pulp Mill
Paper Production
 

Studying the publishing industry aspects of paper also allows us to learn more about commercial paper, itself, --- an interesting little journey for those who take paper for granted and may not understand it fully. This will also shed light on why the physicality of a printed book is so much more intense than its digital, virtual  brother.

What would we do without paper? Think of all the things we use paper for --- from writing to making money of, all the way to ass-wipe and thousands of things in-between  --- not to mention the millions of things that paper is an integral part of.

Well, the publishing industry uses its fair share of paper and with the big move to digital has caused wild swings in paper prices the last few years.

But, according to inside analysts, good news may be breaking for the paper people.

Michael Rondon gives this insight in FOLIO magazine:

Paper Industry Begins to Stabilize

Things are beginning to stabilize after years of wild swings

It’s no secret that the paper industry has suffered through volatility as digital mediums wrest readers from print. The aggregate effects of publishers slashing pages and mills shutting down swung prices wildly over the past several years on yet another front of the battle between digital and print.

The market may be stabilizing though as paper mills adjust and page counts slow their decline.

For Terry Choate, president of Making Magazines, static pricing has been a function of the paper mill industry’s ability to manage their own supply.

“The paper mills have done a better job downsizing recently,” he     says. “[They’re at] the point where their capacity is pretty much in line with demand.”


(John's Note: CWT = 100 lb. weight; the 50,60,70 numbers in the first column above is weight (lbs) of a certain grade of paper in a standard configuration. Example from above table: #3 grade 50# paper costs $50 to $53 per 100 lb. weight) 

The other side of the pricing equation—demand for paper—has stayed relatively flat or declined slightly as of late, Choate says.

Ad pages, a generally reliable indicator of overall page counts, declined 8.3 percent for the industry as a whole in 2012, according to PIB. The numbers stabilized through the fourth quarter however, ending with a 7.3-percent reduction year-over-year.

The gradual stabilization of the paper mill industry, page counts, and therefore pricing, played out in last year’s fall increases. The 2012 catalog season saw a roughly $3/CWT bump across the board—a standard hike Choate says—but those prices have yet to come back down.

“It stuck,” he says. “Prices haven’t decreased since that [fall] increase. And that has to do with that consolidation of paper mills and bringing capacity in line with demand.”

Marie Myers, senior vice president of manufacturing at UBM, agrees. She’s seen the same prices holding in the market, as well.

“They haven’t really shifted one way or the other,” she says. “They’re holding.” The future is a little less certain though.

Read and learn more

A great related link: Printing is More than Reproducing Words and Images on Paper.

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