Transformational use: more than meets the eye?

[NOTE: This is part 1 of a 4-part series on fair use]

Other people have good ideas. Sometimes so good that you want to build on them yourself. That can get you in trouble, or get you a lot of money. It all depends on how you do it.

I've previously written about idea theft, and will return to the topic again. Fair use is in many ways the mirror image of idea theft: it's when you deliberately take someone else's work and use it as a basis for yours. It's permitted, but only under certain circumstances. The first thing to check is whether your proposed use is transformational.

The text of the statute is actually pretty short: step one of the fair use analysis requires you to determine "the purpose and character of the use, including whether such use is of a transformational nature or is for nonprofit educational purposes". But short doesn't necessarily mean easy to understand. I'll unpack it.

Fair use and unfair theft: how can a creator understand these rules?

It is a truth universally acknowledged that a single lawyer in possession of a great tort claim must be in want of a life.

If you've ever read a book in your life, you should recognize that statement as a riff on the first line of Jane Austen's "Pride and Prejudice". Am I allowed to use Jane Austen's work as a springboard for my own? Answering that question requires me to spend the next few posts (subject to interruptions by more newsworthy events) to explain one of the most commonly-invoked but least-understood aspects of copyright law: fair use.

In order to understand fair use, you need a quick overview of how copyright comes into existence in the first place:

Is Amazon a predator or prey? New developments in e-books litigation

It may be Shark Week on the Discovery Channel, but in the Apple e-books litigation at least one person is alleging that Amazon might be the biggest predator in the water. But unfortunately for him and fortunately for readers everywhere, he's wrong.

For those of you not keeping score at home: Apple and several major book publishers are in litigation with the FTC over price fixing to raise the price of e-books. At issue is something called a "hub and spoke" conspiracy. The FTC claims that Apple offered the e-book publishers the right to have agency pricing (where the publishers set the price and Apple just acts as an agent rather than a reseller), and the publishers agreed they would pull their books from Amazon. The "hub-and-spoke" name comes from the fact that the various spokes (the publishers) need the hub (Apple) to give effect to their conspiracy. I've previously written about the public comments on a settlement the FTC wants to bring for some of the publishers. Now the court has to decide whether to accept the settlement.

Do you know more about endorsements than large companies and law firms?

Bloggers and other reviewers all seem to know they need to pay attention to the FTC Endorsement Guides. Maybe large companies haven't quite gotten the message? That seems to be the suggestion of at least one Federal District Judge.

Some background. Google and Oracle have been going at it for a while about whether Android infringes on software copyrights patents owned by Oracle and implemented in Java. Google came out (mostly) the victor. But there's some post-trial matters still to be addressed and so the trial judge, Judge William Alsup in the Northern District of California, still has jurisdiction over the case.

In an order handed down on August 7, Judge Alsup ordered each of Google and Oracle to produce a statement "clear[ly] identifying all authors, journalists, commentators or bloggers who have reported or commented on any issues in this case and who may have received money (other than normal subscription fees) from the party or its counsel during the pendency of this action."

If you've read any comments on the FTC Endorsement Guides, these issues should sound familiar. (If not, I've helpfully put a link to a prior post in the footer.) But this goes far beyond bloggers, and it's not under the jurisdiction of the FTC. And it's likely to be much more important.

Lending and LendInk: six lessons on copyright from one big mess

LendInk: copyright infringer? Witchhunt victim? Both? Neither? More rhetorical questions?

What happened last week to LendInk, where hundreds of authors sent takedown notices to a site that matched people willing to lend e-books to people wanting to borrow them, seems to be an unfortunate artifact of two things:

1. Lots of creators don't know what the law actually permits and prohibits.
2. When they want to find out, they don't really know where to turn.

I can't do much about the first point. But I'll try to help with the second.