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Shrodinger's Derivatives
I spend a lot of time at the MobileRead forums. Too much, probably.
Today, someone posted a link to Cory Doctorow's newest rant about free ebooks (I love his rants, but I still recognize propaganda when I see it), and in the comments, another author--John Sundman--pointed out that he'd given away his novels as free ebooks. For the first two, that boosted sales nicely, but although he's done it for the third, it hasn't worked; "free promo ebook" is no longer a novelty. (He posits that it's possible his third book just isn't as good as the first two, but he's not buying that. Neither am I. A quick glance at all three e-versions says they should hook the same kind of readers.)
Check out his site, Wetmachine. It's nifty. (Obscurity, not piracy, is the problem, right?)
So. That was background info.
In the course of clicking around his site, I found a post about Ontological conundrums: When is a thing a thing, and when is it something else?
Two bits of copyright law are involved: Who owns copyright for solicited but unpaid, uncontracted reviews (I b'lieve that's very clearly "the author;" rules about work-for-hire are strictly described), and the definition of "derivative work."
In the first case, a magazine asked him to write a review (for free, presumably for the glory of seeing his name in print in Science As Culture, which he was willing to do). He wanted to post the review--or rather, the draft of it--on his blog, and the publisher claimed that no, they owned the rights to the review. Which was currently being revised to match their requests.
He seems more bemused than upset at this, and is enjoying the concept of someone else owning (without any contract in writing) the copyright to a bit of content that hasn't yet been written.
Which doesn't exactly connect to his second point except in the general theme of "copyright law weirdnesses."
His third book, The Pains, is available at his site as free HTML links. It's released under a CC license. However, the print version is apparently nifty-formatted, with pictures (the site has low-res, watermarked versions), and he chose not to release a PDF for free, because he wants to encourage sales of the upgraded, nicely-formatted version.
Of course, free PDFs abound for any CC work. He asked one person to remove the PDF version from their site, on the grounds that it was a derivative work, not covered by the CC license. The person didn't agree that it was derivative, but removed the PDF (and, I gather, any other versions of the book he was hosting).
Sundman talked to a lawyer about "are different ebook versions considered derivatives, or just different formats?" The answer: the status of a derivative exists in legal limbo until a court makes a ruling. And even then, the ruling only applies to that case. (Off the top of my head, maybe a drastically-reformatted PDF is a derivative, but a straight text-to-letter-size-pages version is not.)
I can say this: if PDFs made from the HTML might be considered "derivatives," fanfic as "transformative" has a much stronger legal basis; the changes are a lot more drastic by contrast. I'd thought that a PDF would no more be a "derivative" than copying a magazine in black-and-white onto half-sized pages.
The idea that all those pirated text-based ebooks might be considered "unlicensed derivatives" instead of "unauthorized copies" is just mind-boggling.
Today, someone posted a link to Cory Doctorow's newest rant about free ebooks (I love his rants, but I still recognize propaganda when I see it), and in the comments, another author--John Sundman--pointed out that he'd given away his novels as free ebooks. For the first two, that boosted sales nicely, but although he's done it for the third, it hasn't worked; "free promo ebook" is no longer a novelty. (He posits that it's possible his third book just isn't as good as the first two, but he's not buying that. Neither am I. A quick glance at all three e-versions says they should hook the same kind of readers.)
Check out his site, Wetmachine. It's nifty. (Obscurity, not piracy, is the problem, right?)
So. That was background info.
In the course of clicking around his site, I found a post about Ontological conundrums: When is a thing a thing, and when is it something else?
Two bits of copyright law are involved: Who owns copyright for solicited but unpaid, uncontracted reviews (I b'lieve that's very clearly "the author;" rules about work-for-hire are strictly described), and the definition of "derivative work."
In the first case, a magazine asked him to write a review (for free, presumably for the glory of seeing his name in print in Science As Culture, which he was willing to do). He wanted to post the review--or rather, the draft of it--on his blog, and the publisher claimed that no, they owned the rights to the review. Which was currently being revised to match their requests.
He seems more bemused than upset at this, and is enjoying the concept of someone else owning (without any contract in writing) the copyright to a bit of content that hasn't yet been written.
Which doesn't exactly connect to his second point except in the general theme of "copyright law weirdnesses."
His third book, The Pains, is available at his site as free HTML links. It's released under a CC license. However, the print version is apparently nifty-formatted, with pictures (the site has low-res, watermarked versions), and he chose not to release a PDF for free, because he wants to encourage sales of the upgraded, nicely-formatted version.
Of course, free PDFs abound for any CC work. He asked one person to remove the PDF version from their site, on the grounds that it was a derivative work, not covered by the CC license. The person didn't agree that it was derivative, but removed the PDF (and, I gather, any other versions of the book he was hosting).
Sundman talked to a lawyer about "are different ebook versions considered derivatives, or just different formats?" The answer: the status of a derivative exists in legal limbo until a court makes a ruling. And even then, the ruling only applies to that case. (Off the top of my head, maybe a drastically-reformatted PDF is a derivative, but a straight text-to-letter-size-pages version is not.)
I can say this: if PDFs made from the HTML might be considered "derivatives," fanfic as "transformative" has a much stronger legal basis; the changes are a lot more drastic by contrast. I'd thought that a PDF would no more be a "derivative" than copying a magazine in black-and-white onto half-sized pages.
The idea that all those pirated text-based ebooks might be considered "unlicensed derivatives" instead of "unauthorized copies" is just mind-boggling.
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On the other hand, even if it's considered derivative under a cc license, I don't think that would have any bearing on an actual copyrighted work, would it?
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I'm seriously unconvinced of this being able to hold up in court. (Fortunately, the author seems not overly concerned about it; mainly, he'd like to avoid *bad* PDFs being distributed and discouraging people from buying the well-formatted book.)
The roundabout point I was making was,
if changing format type is "derivative" rather than just a standard copy, that may lower the bar for the difference between "derivative" and "transformative," and make it more likely that fanfiction would be "transformative"--which is fair use under copyright law, allowed without permission.
Derivatives need permission. Transformative works don't. There's no legal definition of the difference, just a swarm of case law precedents, some of which appear to contradict each other.
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Does a precedent for one type of license have any bearing on the legal status of the other?
I can kinda see the argument being made both ways. I think you're saying that the underlying terminology is the same for both and that's what's being defined here? That it would apply to both.
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I know that audiobook versions are considered "derivative works;" it hadn't occurred to me that the switch between HTML and PDF could work the same way.
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I think fan fiction counts as derivative where as format shifting I think is something completely unrelated.
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I'm just kinda boggled at the idea that switching from HTML to PDF could be considered "derivative"... I suppose that if an audiobook is a "derivative," a different digital format could be as well.
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