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Publishing News: Judge rules fair use in Authors Guild v. HathiTrust

Summary judgement in favor of HathiTrust, Arment's magazine experiment, and 10 steps to a publishing reformation.

Here are a few stories from the publishing space that caught my attention this week.

HathiTrust book scanning ruled fair use

Last week, Google reached a settlement agreement with McGraw-Hill, Pearson Education, Penguin, John Wiley & Sons, and Simon & Schuster over its book-scanning project. The Authors Guild was none too happy about the settlement, as it may not bode well for its pending lawsuit against Google. This week, as the Authors Guild called upon the DOJ to review whether or not the terms of the settlement, which were not disclosed, violate Federal antitrust law, the group suffered yet another setback: Judge Harold Baer ruled in favor of the HathiTrust Digital Library in Authors Guild v. HathiTrust, ruling that the libraries that gave books to Google to scan are protected under the principle of fair use.

Mathew Ingram at GigaOm argued this week that the authors are standing on the wrong side of the book-scanning issue. He points out that Judge Baer’s decision was a summary judgement, meaning that the judge felt the arguments for fair use were strong enough to make a trial unnecessary. Ars Technica’s Timothy B. Lee takes a nice look at the factors the court considers in fair use cases and which held the most weight in Judge Baer’s decision.

Law professor James Grimmelmann noted that this ruling together with last week’s settlement might be “a moment for a reevaluation of the Authors Guild’s suit against Google.” Ingram and Lee both point out that Google’s fair use argument might not be as strong as HathiTrust’s, but Lee stresses the nuance of the decision may be a positive sign for Google:

“The libraries’ fair use argument is somewhat stronger than Google’s because they are non-profit organizations with fundamentally educational missions. But significantly, Judge Baer did not rely heavily on this fact in siding with the libraries. Instead, he focused on the transformative nature of the libraries’ use. And since Google is making virtually the same use of its own scanned copies of the books, it’s a safe bet that there are some happy lawyers in Mountain View this evening.”

Instapaper’s Arment launches a magazine experiment

Tumblr co-founder and Instapaper creator Marco Arment started a new publishing experiment with a rather traditional publishing model: he launched a magazine, called The Magazine. Jeff John Roberts reports at GigaOm that the magazine app is available only through iTunes and only for iOS 6. According to the app description, subscriptions are $1.99 per month, and an issue will publish every two weeks and will contain four 500- to 1000-word editorials and big-picture articles on technology topics.

In a “Foreword” post to the magazine, Arment explains the experiment and how it breaks from the traditional magazine model:

“The parallels to the magazine industry are obvious. But I don’t consider The Magazine to be a member of ‘the magazine industry’ any more than blogs are members of ‘the publishing industry’. Those terms evoke the old and established, while this is the new and experimental. … Instead of the traditional labor-intensive magazine layout and expensive multimedia production, The Magazine’s article format is similar to Instapaper‘s: one clean, adjustable, reader-friendly template with HTML, occasional images, and some small conveniences.”

Arment is starting as The Magazine’s one and only employee, with very little starting capital, and low recurring costs — paying writers per article. In his “Foreword,” he also notes another non-traditional aspect of the experiment: he’s giving it two months, or four issues, to turn a profit or he’ll close up shop.

10 steps to a healthier publishing industry

OR Books co-founder Colin Robinson called for a reformation in publishing in a post at The Guardian this week and outlined 10 steps to get the publishing industry started on a healthier track.

Robinson begins by advising publishers to start selling direct and focus on readers, in turn breaking the stranglehold Amazon has over the market. He writes: “The longer-term advantages of using their own customer databases to sell at full price, rerouting the additional revenue into marketing, will outweigh any initial discomfort about eschewing the services of the world’s largest booksellers.” He also stresses the importance of making good use of real-time data:

“For many years publishing enjoyed a consoling period when no one had much idea how a book was doing once it was out in stores. When selling direct to the customer via the internet, reporting of sales figures is exact and immediate. This allows authors access to real-time feedback about performance, a welcome transparency in an industry that has made an art of camouflaging sales figures in sporadic royalty reports.”

Robinson’s addresses the importance of good editing, suggests print-on-demand rather than storing stock in warehouses, and advises keeping prices high. You can read his 10 publishing industry “precepts” here.

Photo: My Trusty Gavel by steakpinball, on Flickr

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