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Appeals Tosses
FCC Indecency Rule

The federal appeals court in New York recently tossed out a key FCC indecency ruling that said a slip of the tongue gets broadcasters a fine for indecency, telling the commission that it failed to give a good reason for its decision and couldn't likely find a good reason if it had to.

"We find the FCC's new policy sanctioning 'fleeting expletives' is arbitrary and capricious under the Administrative Procedures Act for failing to articulate a reasoned basis for its change in policy," the court wrote in a 2-1 opinion.

Although a majority of the judges found little to like about the commission's 2006 decision, it sent the order back to Washington, allowing the panel to get another stab at writing the rules.

But even the court's remand came with a catch as it warned the FCC to ensure that "further proceedings" are "consistent" with the court's decision.

"We are doubtful that by merely proffering a reasoned analysis for its new approach to indecency and profanity, the commission can adequately respond to the constitutional and statutory challenges raised by the networks," Judge Rosemary Pooler wrote. "Nevertheless, because we can decide this case on this narrow ground, we vacate and remand so that the commission can set forth an analysis. While we fully expect the networks to raise the same arguments they have raised to this court if the commission does nothing more on remand than provide additional explanation for its departure from prior precedent, we can go not further than this opinion."

FCC chairman Kevin Martin took the decision hard, saying it is the judges who are wrong and not the commission. - More

Simon & Schuster, Guild
Still Butting Heads

Authors and agents have been waiting nervously to see if a big publisher would attempt to grab hold of the long tail. This week Simon and Schuster in the US has emerged as that publisher, with a new provision in its contracts to retain copyright in all works that exist in its electronic database - whether or not the work remains in print. The company will no longer have to hold copies in its warehouse to qualify as the publisher of those works. The Authors Guild is advising authors not to sign.

Standard contracts allow rights to revert to the author if a book goes out of print and if the publisher shows no inclination to reprint it. That made sense when the only way to publish a book was to order at least several hundred copies from a printer. But digital technology is changing the business. Books can be held in digital files, to be downloaded or to be printed on demand. They need never be unavailable. What, then, becomes the definition of "out of print"?

Authors would say that their books are out of print if they have only a virtual existence, listed in the darkest corners of websites. Publishers would respond that digitisation prolongs the lives of books that would otherwise be uneconomical to promote. Simon & Schuster's statement about its contracts is: "We are embracing print-on-demand technology as an unprecedented opportunity for authors and publishers to keep their books alive and available and selling in the marketplace in a way that may not have been previously possible for many authors, and are confident in the long term that it will be a benefit for all concerned."

S&S has a point. A publisher is not likely to reprint a book if it predicts sales of only a few hundred copies; but the author would like to get those sales, and would struggle to find an alternative method of achieving them in the immediate future. As book buyers become used to new methods of delivery, such a book will find buyers who would have had no chance of discovering it in the pre-digital era.

The publisher has blundered, though, in attempting to insert this new clause in its contract unilaterally. The Authors Guild has seized the moral high ground; and S&S' rivals Random House and Grand Central have happily informed the press that they have no plans to introduce a similar policy. - More

Guild Stands by Guns

In an updated story, The Authors Guild is not backing down from its stance that new language in Simon & Schuster’s contracts is an attempt to alter the definition of when an author has the right to get back the publishing rights to a book.  In a new alert sent out to its members recently the president Nick Taylor, the Guild reiterated its recommendation that any author who has a manuscript that is being auctioned to exclude S&S unless the publisher agrees before hand to agree to the same terms as all other publishers.

The new alert comes in response to a letter S&S sent to agents and authors that charged the Guild with "perpetrat[ing] serious misinformation." That charge was in response to an alert the Guild sent last week, warning members of a the new contract language.

In its latest alert, the Guild says that while S&S looks to make the dispute about print on demand, the real issue is when a book goes out of print. "Simon & Schuster is trying to change the rules of the industry so that they never have to admit that a book is out of print," the Guild writes. - Read Guild Letter

AmSAW Denounces
S & S Rights Clause

In a recent statement to the press, The American Society of Authors and Writers sided with the Author's Guild and the Writers Union in denouncing the underhanded attack by Simon & Schuster on the rights of all authors everywhere. "For a publisher to retain rights to a book after it no longer has any appreciable interest in that property on the basis that the book may again become economically viable at some point in time is an unprecedented assault on U.S. copyright laws and the rights of authors throughout the world," said AmSAW President D. J. Herda.

"AmSAW protests Simon & Schuster's recent actions," Herda said, "and vehemently denounces its contract changes. We advise all of our author members, as well as all literary agents currently doing business with Simon & Schuster, to negotiate out of any existing contracts and to refuse to sign any future contracts containing the objectionable clause. Authors and agents should refuse to submit their material to S & S until the company removes the clause."

AmSAW member, literary agent Faye M. Swetky of The Swetky Agency, agreed. "We will not submit any material to Simon & Schuster except with the understanding that no such questionable and unprecedented rights clause will be included in any future contracts with agency clients. This is a perfect example of a publisher that has gone too far.

"While we recognize the need for publishers to generate profits from the books they produce, we also recognize the authors' inalienable rights to maintain control over their creative works."

Writer's Union
Joins in Protest

The National Writers Union is joining the Authors Guild in calling on Simon & Schuster to rescind changes in its contracts that permits the publisher to retain rights to a book even if it is stored only as an electronic file rather than returning the rights back to the author.

"Simon & Schuster is violating the principle that a publisher should retain rights to a book only if it continues to invest significantly in the work," said NWU president Jerry Colby. "This move is a naked power grab." S&S has argued that with improvements in print-on-demand technology it has the ability to keep an author’s book available for sale over the term of the license. That is not a good enough reason to keep the rights, the NWU believes. "It costs virtually nothing to keep an electronic file on a computer waiting for the occasional customer," Colby said. "It does not represent a significant investment and certainly should not be an excuse for tying up rights." If POD is the only feasible way to keep some older titles available, Colby said, those rights should be controlled by the author, not the publisher. - More

Well, Wait a Minute...

On June 2, 2007, The Authors Guild reported that Simon & Schuster executives apologized for "any early miscommunication" about the reversion of rights in their contract, citing the Association of Authors' Representatives as their source. The AAR reported that the publisher "is willing to negotiate a 'revenue-based threshold'" to determine whether a book is considered in-print.

Spokesman Adam Rothberg confirmed that the house is having conversations with agents about setting a minimum level of total annual earnings for a book from all sources, trying to anticipate continuing change in how books produce revenue and remain active in a more technology-driven world. Uh-huh.

Frey, Publisher To
Issue Rebates

Readers who bought author James Frey’s fabrication-filled memoir, A Million Little Pieces, may get a refund following a judge’s tentative approval of a settlement in the case.

U.S. District Judge Richard J. Holwell set a Nov. 2 date to consider final approval of the deal reached last year. On Monday, he gave his preliminary approval to the agreement, calling it “fair, reasonable, adequate, and in the best interests of the settlement class.”

The agreement calls for the defendants, Random House Inc. and James Frey, to spend $2.35 million to fully refund readers who bought the best-seller before Jan. 26, 2006, the day Frey and his publisher acknowledged that he had made up parts of the book. Claims would have to be filed by Oct. 1.

Literary Papers
Tax Bill Revived

When collectors donate manuscripts, letters, and diaries of an author to libraries or universities, they are entitled to deduct the fair market value of those literary papers from their income for tax purposes. When authors donate their manuscripts and other papers to libraries or universities, they're permitted to deduct only the cost of the physical materials used to produce those documents (the cost of paper, ink, toner).

The difference, of course, is immense, and immensely inequitable to authors who choose to donate their papers for scholarly research.

We now have a good chance to right this wrong, and we'd like your help.

BACKGROUND

For seven years, the Authors Guild has supported proposed changes to the tax code that would allow authors and artists to deduct for tax purposes the appraised market value of their own work (such as manuscripts, first editions, or research notes) that they donate to museums, universities, and libraries. Current tax laws permit the creators to deduct only the value of the materials used in creating the work, such as the expense of the paper and ink in the case of an original manuscript. Collectors and others, however, are permitted to deduct the fair market value of donated manuscripts.

The "Artist-Museum Partnership Act" was recently reintroduced in the House and Senate to correct this inequity. In the Senate, the bill was introduced as S. 548, by Senators Patrick Leahy (D-VT) and Robert Bennett (R-UT). In the House, H.R. 1524 was introduced by Representatives John Lewis (D-GA), Jim Ramstad (R-MN), and Lloyd Doggett (D-TX).

ACTION REQUESTED

The legislation has solid bipartisan support, but we need many more co-sponsors. If your senators and representative are not yet co-sponsors (see lists below), please contact them and urge that they do so. A suggested letter appears below.

If you can, it's best to send your letter by fax -- it will get more notice than an e-mail. To find your legislators' fax numbers, call the Capitol Switchboard at (202) 224-3121. The operator will forward your call to your legislator's office. You may also find your legislators' fax numbers at their web pages; please follow the instructions in the next paragraph to find your legislators' official web sites.

If you can't send a fax, please send your message by e-mail (regular mail isn't the best, since delivery to Capitol Hill has been subject to lengthy delays since 9/11). To find your legislators' e-mail information, please go to http://www.house.gov

(your representative's name can be found by typing your zip code into a space in the upper left of the web page) and

http://www.senate.gov (choose your state from the "Find Your Senators" list in the upper right). These searches will lead to your legislators official web sites. Click "contact" for e-mail (typically a web form to fill out and submit) and fax information.

PLEASE COPY US

If you contact your legislators by fax, please copy us at (212) 564-5363. If you e-mail your legislators, please copy staff@authorsguild.org to let us know. - More

Copyright Advocates
Pulling Out All Stops

The Copyright Alliance--which launched, complete with electric-green and white T-shirts displaying its logo at a recent morning event on Capital Hill--consists of 29 national organizations and companies that purport to represent 11 million workers in copyright-related industries. Those members include the Recording Industry Association of America, the Association of American Publishers, the Motion Picture Association of America, Microsoft, Viacom and Walt Disney.

The group's members aren't expected to agree on all the nuances of policy debates, said Patrick Ross, the alliance's executive director.

But according to a press release, they're all committed to broad goals like promoting the "vital role" of copyright in the U.S. economy and job market, encouraging inclusion of copyright protection requirements in international agreements, supporting civil and criminal penalties for piracy, and advocating against "diminishment" of copyright law.

As copyrighted works become ever more widely distributed through digital means, those who own the rights "still want to get paid," Ross said. - More

Changing Copyright
Battlefield

In the sweet science of early-21st-century struggles over intellectual property rights, the title fights tend to be fairly technology-rich. Court cases over network DVR, Viacom's continuing battle against Google, Microsoft's grudge match with the open-source community, George Lucas' accord with Star Wars mashup artists-that kind of thing. But every fight fan knows the undercards are where the really strange stuff happens, and you can still find old-fashioned battles involving such fanciful media as bound books and longhand letters.

On Friday, a San Jose federal judge awarded attorney fees to a Stanford University English professor whose suit against the estate of James Joyce was settled recently. The awarding of fees in an out-of-court settlement, while not typical, is not unprecedented; and since settled cases don't establish legal precedent, this case is unlikely to become required reading at any law schools. But Carol Loeb Shloss' suit against the Joyce estate sheds light on an ironic, and maybe inevitable, trend in intellectual property: As copyright becomes harder to defend, many copyright holders are becoming less realistic about the limitations of their ownership.

Shloss' suit, which was launched by the Stanford Law School's Fair Use Project and argued by intellectual property expert Lawrence Lessig, charged the Joyce estate, (consisting of Stephen James Joyce, the author's grandson and sole living heir, and Sean Sweeney, a trustee), with unreasonably preventing Shloss from making fair use of the author's published works or quoting from Joyce family letters for her biography Lucia Joyce: To Dance In the Wake. It also charged the estate with a variety of copyright "misuses"-trying to prevent Shloss from using materials (such as medical records) whose copyright the estate did not own, intimidating the owners of the physical papers on which its copyrighted material is written and repeatedly refusing reasonable fair-use requests from others. It also took some steps to chip away at the presumed copyright on some of Joyce's published works.

It wasn't easy to find a rooting interest in this fight. While Shloss was the plaintiff of choice, this was a laundry-list suit that the Joyce estate should have seen coming. Stephen Joyce's habit of aggressive copyright defense, which was abundantly detailed last year in a New Yorker article by D.T. Max, is the stuff of legend. Scholars in the vast (maybe too vast) Joyce industry have formed support groups and fact-finding missions just to deal with his attempts to prevent Joyce scholarship. Potential adapters of Joyce's work for the stage and screen, musicians looking to quote Molly Bloom's monologue in their songs, even amateur Bloomsday pub crawlers have all felt the lash of the grandson's frequently insulting and often hilariously over-the-top campaigns to separate Joyce's work from the few people who actually read it. - More
 

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