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.

Three elements in a standard audit clause, and one non-standard one you should request

Unless you're taking cash from purchasers of your books or CDs at a county fair or equivalent, there is always someone standing between you and your money. Even if it's just VISA or Paypal for sales through your website. But much more often there's one, and sometimes as many as three, groups between money and you:

1. The retailer.
2. Your publisher, distributor, etc.
3. Your agent.

Naturally the retailer is in the chain of payment. In a traditionally-published product your publisher couldn't not be in the middle: they've got the relationship with the retailers. And your agent will want to be in the middle if they have any sense - that way they can make sure they get their cut.

Guest Post: One "man's" experience at Romance Writers of America

If you've ever thought about writing a novel, Romance Writers of America might be the conference for you. Read why.

http://bit.ly/O2UMx4

What you need to know about reversion of rights clauses

For many creators, one of the most exciting days of their lives is the day they find out they will be published. Another is the day they receive their first payment. And sometimes there's a third exciting day too: the day they get their rights back from their publisher.

Especially now that independent distribution of books and apps through things like the Kindle Marketplace and the Apple App Store isn't just possible but is also lucrative for many creators, getting your products back can increase your backlist and income.

It's not super-important to worry about reversion clauses in a non-exclusive deal. After all, if you can sell your creations in multiple channels then it's hardly a problem to be in as many as possible. But where anyone locks you into an exclusive deal then you may want to make sure you can get your rights back if they aren't actively trying to make you money with them.

And although every publisher has different reversion clauses, there are a few standard elements that you need to consider.