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Publishing News: The SCOTUS “first sale” ruling spells trouble ahead for publishers

Publishers react to Kirtsaeng ruling, School of Data Journalism returns to festival, and a look at publishers' struggles to remain relevant.

Publishers express disappointment in SCOTUS “first sale” ruling

Headline news this week was the U.S. Supreme Court’s ruling in favor of the student textbook seller in Kirtsaeng v. John Wiley & Sons, Inc., in which the court upheld the “first sale” doctrine in the case of copies of copyrighted material lawfully made outside the U.S. Jeff John Roberts reported the gist of the ruling at PaidContent:

“Writing for the majority, Justice Stephen Breyer rejected John Wiley’s argument that the phrase ‘lawfully made under this act’ implied a geographic limitation. He also cited the concerns of library associations, used-book dealers, technology companies, consumer-goods retailers, and museums — all of which had urged the court to reject the restricted notion of ‘first sale.’”

Andrew Albanese rounded up reactions to the ruling in a post at Publishers Weekly. Wiley president and CEO Stephen M. Smith said, “It is a loss for the U.S. economy, and students and authors in the U.S. and around the world.” Tom Allen, president and CEO of the Association of American Publishers lamented the decision as well:

“We are disappointed that today’s copyright decision by the US Supreme Court ignores broader issues critical to America’s ability to compete in the global marketplace…The decision will have significant ramifications for Americans who produce the books, music, movies and other content consumed avidly around the world…”

New York Law School professor James Grimmelmann took an in-depth look at the ramifications of the decision in a post at Publishers Weekly, noting the consequences weigh most heavily on publishers, but could have a negative impact on readers as well:

“If Kirtsaeng can import international editions, so can Amazon, or anyone. The price differential between the two will collapse. Publishers will be reluctant to create inexpensive editions for those in less affluent countries who can’t afford the eye-watering prices (some) Americans can. That’s bad for readers around the world, and could make it infeasible to publish some books at all.”

Grimmelmann also noted that Justice Kagan’s concurring opinion could point to a compromise — namely, “if Section 109 [of the Copyright Act] first sale were to protect domestic distributors under Section 106 [distribution right], but not international importers under Section 602 [import right], the sky might not fall on anyone.” Grimmelmann wrote, “there is some wiggle room here for either the Court or Congress to recreate territoriality without gutting first sale, were they so inclined.”

Internet industry analyst Larry Downes noted in a post at Harvard Business Review that the reach of the decision goes beyond geographic pricing implications:

Kirtsaeng, for better or worse, may put an end to geographically-based differential pricing for books. But it’s also important for what it says about digital content, especially when that content is embedded in physical products. The majority was notably concerned about the implications of Wiley’s argument in a time when nearly every product bought and sold on world markets has embedded within it some piece of copyrighted software or packaging. That’s because software, like books, is protected by copyright.”

Downes reported that Justice Stephen Breyer, writing for the majority, noted that Wiley’s interpretation of “first sale” would end up preventing someone from reselling his or her used foreign car, for instance, without first getting the permission of every copyright holder of every copyrighted piece of the car’s software, which, Downes wrote, "would spark a revolution." You can read Downes full report at Harvard Business Review.

School of Data Journalism returns for a second year

The big news in journalism this week was the announcement of the second annual School of Data Journalism that will take place during the International Journalism Festival April 24 to 27 in Perugia, Italy. Lisa Evans reported at PBS’ Media Shift Idea Lab that the School of Data team from the Open Knowledge Foundation along with the European Journalism Centre will run workshops each day during the festival. There also will be daily panel discussions, including a discussion of the state of data journalism in 2013 on April 24 and a discussion on covering emergencies in the age of big data on April 27.

According to Evans’ report, journalists leading the sessions and discussion panels include representatives from The Guardian, Wired Italy, The New York Times, and Reuters, among many others. You can read more about the event at PBS.org and at the Open Knowledge Foundation blog, and you can register by submitting this form.

Who will own publishing’s digital future?

In a post at Wired this week, Evan Hughes took a look at the state of publishing for publishers and noted that for all the digital optimism for the industry as a whole, “it’s not clear that traditional publishers are well positioned to own the digital future.” He highlighted the underlying issue publishers face in struggling to remain relevant and necessary to the publishing process:

“In the long term, what publishers have to fear the most may not be Amazon but an idea it has helped engender — that the only truly necessary players in the game are the author and the reader. … At a time when a writer can post a novel online and watch the revenue pour in by direct deposit, the publishing industry’s skill at making books, selling them by hand to bookstores, and managing the distribution of the product threatens to become irrelevant.”

Though at the moment the writer-as-publisher phenomenon is largely limited to previously unknown authors, Hughes noted, “[t]he real danger to publishers is that big-ticket authors, who relied on the old system to build their careers, will abandon them now that they have established an audience.” He pointed to Stephen King, who recently experimented with bypassing his publisher by publishing his latest essay as a Kindle Single. You can read Hughes’ full report at Wired.

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