Reply concerning permission fee

["Joseph J. Esposito" <espositoj@xxxxxxxxxxxxxxxx>]

>The questions we face now are:  1] the legitimacy of her request for
payment, and 2] the fairness of the amount she requests in compensation for
this violation of her copyright.  So far as we can tell, she is correct that
her copyright was violated.  That being the case, we are inclined to be
responsive to her request for compensation.  This leaves us with the
question of how to determine if the amount she deems fair compensation is,
indeed, fair.  We thought that an analogy to the cost of reprints might be
helpful, but those costs vary considerably, and, on further reflection, it
is not clear that the analogy between a reprint of a paper article and a
posting on the WWW holds.

>Short of "going to court," does anyone have any knowledge or suggestions
which might be helpful in determining what is fair compensation for the
author?  Any other observations concerning this sort of situation?

JE:  In the hardcopy era, these things used to get resolved quickly and
cheaply.  I have been on both sides of this kind of question many times.
You used to send (or receive) a strongly worded letter (certified).  Then
you would resolve the dispute by sending someone a couple of free books.
The biggest monetary exchange that I can recall was for $500 (we were the
recipient, at Rutgers University Press a million years ago).   This is not
how things work in the networked era, where a Web posting potentially means
global distribution (which is what frightens copyright holders to death) and
disputes typically entail citing Thomas Jefferson and Laurence Lessig.  Lots
more smoke, very little heat.

Other members of this list have made excellent suggestions for a response.
Allow me to add a couple points.  First, tell the author that you "believe
in" copyright, that you are not part of the "information wants to be free"
school (even if this is a stretcher).  The reason for this is that no
organized entity can fail to challenge an assertion that the copyright laws
are unconstitutional or immoral; it strikes at their very foundation, so get
the provocation out of the negotiation.  Second (and most importantly), talk
to the publisher, if there is one, and not the author.  Publishers know the
law; they have to; and they know the going rate for rights and permissions;
AND they see dozens, even hundreds, of minor infringements ever year and
therefore have a routinized way of dealing with what is to them mostly an
administrative burden.  Third, check out comparable properties with prices
at the Copyright Clearinghouse Center (CCC--somehow the name doesn't seem
quite right the way I typed it).  Finally, make sure the author (if there is
no publisher) proves that she owns the copyright by requesting that she
adduce documents (this is in spite of the fact that everything is
copyrighted as soon as you create it).  Without copyright *registration,*
which is not the same thing as copyright, the legal system does not support
the same level of monetary benefit from litigation.

And good luck in dealing with this.  I will predict that you will spend a
thousand times more in dealing with this administratively than the property
is worth to begin with.

Joe Esposito