All posts by Kevin Smith, J.D.

Copyright Issues and Legislation, Scholarly Publishing

UT Offers Help Seeking Permissions

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A while back we wrote about the new database from Stanford University that helps one search copyright renewal records for that period of US copyright history during which un-renewed works would pass into the public domain. Now the Harry Ransom Humanities Research Center at the University of Texas, Austin has announced two databases that will help make searching for information about “orphan works” a little easier.

The Ransom Center has offered the WATCH database, which stands for “Writers, Artists and their Copyright Holders,” for some time. This database helps those seeking permission to use a copyrighted work find out who owns or administers the rights and can give the necessary permission. For example, if one searches “Rawlings” in the WATCH database one discovers the name and address of the literary trust that holds rights in Marjorie Rawlings work.

On May 29 the Center announced a companion database – FOB, for “Firms out of Business.” Here one can find publishing firms that no longer exist, have changed hands or are part of a larger company. Searching “Vintage,” for example, turns up the information that it is an imprint of Random House and that the parent was sold in 2006 to a German company called Bertelsmann AG. Tracking the subdivisions and mergers in publishing is a huge and complex task, so it is impossible for a database like FOB to be entirely complete and up-to-date, but the ability to find “successors in interest” for a defunct publisher will go a long way to reducing the burden of seeking permission.

Both these databases are valuable tools for finding rights holders. The real problem is when rights holders can not be found; when the databases come up empty. That is the real orphan works problem – works that are lost to our cultural heritage as long as they are locked up by copyright with no one to turn the key by giving permission. For that problem we need to see the orphan works legislation that was proposed last year reintroduced in Congress and passed without delay. But in the meantime the Ransom Center deserves a hat tip for the hard work it has done to make the work of all who seek copyright permissions a little easier.

Copyright Issues and Legislation

“Policy Laundering”

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Speaking of international issues, at the recent copyright conference at the University of Maryland University College Center for Intellectual Property, Gigi Sohn of Public Knowledge used the above phrase to describe a disturbing trend in copyright legislation. “Policy laundering” refers to the practice of negotiating bilateral trade treaties with other countries that include rules about intellectual property that are more strict than US law, then presenting the agreements to Congress as evidence that the US must change its law in order to “enable” the treaties. This use of trade agreements to force legislation without regard to whether it serves the original purpose expressed by the Constitution in its authorization of copyright and patent laws – “to promote the progress of science and useful arts” – represents an end run around the Constitution.

 

 

Concern about this practice is not merely abstract. David Nimmer, whose name represents the highest authority on US copyright, writes about the TRIPS (Trade Related Intellectual Property Rights) agreement as a similar, and successful, attempt to use trade negotiations to circumvent constitutional strictures in his book Copyright: Sacred Text, Technology, and the DMCA. The Hague, London, New York: Kluwer Law International (2004). And the recent (July 2003) extension of the copyright term in Mexico to life of the author plus 100 years (30 years longer than in the US) must surely raise the concern that calls for such an extension in the US for the sake of “harmony” will soon be heard.

Digital Rights Management, Technologies

Ineffective Technological Protection Measures?

Recently we have seen some music companies move away from using technological protection measures to prevent copying songs onto multiple devices or those sold by different companies in favor of a market solution that charges consumers slightly more for music that can be freely copied. Now another brick, albeit a tiny one, has fallen from the wall of electronic protection measures.

Both the DMCA in the United States and the European Union’s Copyright Directive are designed to implement an international treaty that calls for legal enforcement of “effective technological protection measures.” Both laws use that phrase, but the way they define it differs a bit. The European definition, which says that, to be effective, a technological protection measure “must achieve its protection objective,” was recently used by a court in Finland to declare that CSS (Content Scrambling System), the protection code used on most DVDs, was ineffective and therefore no longer protected from circumvention by law. See Electronic Frontier Foundation posting on the case here.

The problem, according to the Helsinki District Court, is that the code for circumventing CSS is all over the Internet. Some consumers that download software for copying DVDs may not even know that they are circumventing a technological protection measure when the do so. In these conditions, the court said, CSS is simply not effective under the EU definition. It is also important that the argument was made that CSS is not intended so much to protect copyrighted content as it is to enforce a monopoly on playback equipment manufacturing; the fact that this is not a legitimate “protection objective” under the EU directive supported the finding that it was not an effective measure. There is a short English-language article about the case here.

This case may have some symbolic significance, especially by pointing out the real monopolistic purpose behind much DRM, but it is not likely to have much impact in the United States. The definition of “effective” in the DMCA seems to rest more on the intent of the copyright owner than on the observable operation of the DRM system. And two US cases have already rejected the argument that the ubiquitous availability of “keys” renders the “lock” unenforceable. But this Finnish decision may help pressure the movie industry to move away from DRM and, like the music companies, consider market solutions to their copying problem.

Copyright in the Classroom, Fair Use

“A Disgrace to the Forces of Evil”

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Although it is available from lots of sources, I can’t resist adding a reference to the “A Fair(y) Use Tale” video to this site.  This 10 minute remix video, constructed entirely from Disney cartoons, offers a very clever explanation of copyright and fair use while at the same time asserting the latter as the justification for the whole creation.  It could provide a valuable resource for teaching students about copyright and fair use; its evident bias in favor of aggressive fair use provides a needed balance to the one-side educational material offered by the content industries.

The video, which was created by Bucknell professor Eric Faden, is available on YouTube, of course, or through the Stanford University Center for Internet and Society web site (which is the link provided above).  The presence of Stanford Law School as a host site may prevent the promiscuous use of take down notices to suppress this amusing and important work; as the video itself says, Disney is notorious for using its copyright to intimidate others and Stanford may be indicating its desire to push back some against that practice.

Be sure to read the “FBI Warning” at the beginning of the video; it is not at all what we are used to seeing on commercial videos.  And listen for the quote used to title this post, which is part of the explanation of fair use.

Authors' Rights, Copyright Issues and Legislation

A Seventy Percent Solution?

It is a little bit belated to be pointing out this April 7 article (“It’s a Steal”) by John Lanchester from the Manchester (UK) Guardian website, but it provides a nice counter piece to the screed advocating perpetual copyright that appeared in last week’s NY Times (see post here). Lanchester, at least, is aware of the balance that copyright law is supposed to strike between incentives for creators and the public interest in access to information and the raw materials for new works. He offers a poignant example of how copyright restrictions have hampered his own creative efforts as an author, and he takes a quick but eloquent romp through the history of copyright law in England. Most important is his acknowledgement that 70% of creative works are currently still protected by copyright but no longer in print. This massive limitation on public access with little corresponding economic benefit to creators is, perhaps, the worst imbalance created by current laws (although Lanchester also cites the extension of copyright term whenever Mickey Mouse looks over the abyss of the public domain). The solution he suggests, a limited copyright term with an ongoing right to minimal royalties, is not fleshed-out well at all, and may be unworkable, unwise, or both. The point is not that this one author can solve the problem; the value of the article is for a creative writer to recognize publicly that our current law has swung too far toward protection and needs to be realigned.

Authors' Rights, Copyright Issues and Legislation

Helprin, Chaucer and literary influence

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Several colleagues have asked me if I don’t have some pithy and devastating response to make to the opinion piece by Mark Helprin in Sunday’s New York Times, A Great Idea Lives Forever. Shouldn’t its Copyright?  In some ways the best refutation of Helprin’s editorial is simply to consider its title carefully.  Do we really want great ideas owned by individuals forever?  While copyright does not, of course, protect ideas, perpetual copyright would vastly increase the amount of litigation needed for any new work of creativity in order to prove that its dependence on all that had preceded it was on the correct side of the idea / expression line. What a powerful weapon the James Joyce estate would wield to suppress criticism and scholarship for many, many more years if Helprin got his wish.

Should Boccaccio have been able to sue Chaucer to establish that only ideas and not expression were appropriated when Chaucer wrote his “derivative works?”  Without literary borrowing, the great works of world literature would not have been possible; Chaucer could not have written The Canterbury Tales and Mark Helprin could not have written… whatever Mark Helprin has written.  Then there is the culture of remix and parody fostered by the Internet — a whole new kind of creativity that should not be stifled in its infancy.  So perhaps the most appropriate response to Helprin is to read another recent article that celebrates the interplay and interpenetration of cultural creation, The Ecstasy of Influence by Jonathan Lethem, which appeared in Harpers in February 2007.

Authors' Rights, Copyright Issues and Legislation, Open Access and Institutional Repositories

Publisher position on author rights

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Three academic publishing organizations recently released a short position paper called “Author and Publisher Rights for Academic Use: An Appropriate Balance” that is worth a look from all who are concerned about scholarly communications.  For higher education, the position paper contains elements that evoke hearty agreement and others that demand objection.

If, as a recent comment on the LibLicense list suggested, the purpose of the paper is to call wide attention to two facts, that many scholarly journals already have very “scholar-friendly” policies built into their publication agreements and that copyright is not necessarily a barrier to academic discussion and comment, there would be little to argue with.  It is quite true that many academic journals already allow authors to retain many or most of the rights necessary for subsequent teaching and research uses.  It is important that authors read those agreements to be sure this is true in their specific case and to consider whether or not self-archiving or some other form of electronic deposit is permitted, since such access is becoming more and more important to scholars and to scholarship.

On the issue of digital “open access” availability, the position paper takes an awkward stance.  While citing several journals that have adopted “author-pays” models of open access as leaders, the paper marshals several arguments against mandated public access for research funded with public money.  Some of these arguments are self-contradictory; if one fear about open access is that it will “confuse the scientific record,” why is it suggested that a better course than mandating access to the final version of an article is to post pre-prints?  While pre-print repositories seem less threatening to the traditional business model of journal publishing, the scientific record is best preserved when access to the scholar’s final word is available to all.

One comment at the very end of the report deserves comment.  The publishing organizations take note of the educational exceptions and limitations built into copyright law but assert “that these exceptions are thus far limited to traditional photocopying and do not permit the exploitation of such materials [journal articles] over the Internet.”  This is wishful thinking; no court, that I am aware of, has decided one way or another about how far educational exceptions apply in the digital realm.  The TEACH Act, although largely a failure at its stated purpose, is clearly intended to apply some leeway for education to the Internet.  And the oft-repeated assertion that copyright law is technology neutral implies that there is fair use on the Internet, as the recent Perfect 10 decision held, even if its educational boundaries have not yet been clarified.

Copyright Issues and Legislation, Fair Use

Caching, Thumbnails and a Fair Use Win

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I am generally wary of relying too heavily on Google to fight all of the battles in copyright law, mostly because their interests and those of higher education don’t always seem very similar. But a fair use win for Google is usually good news for us as well, and the case decided recently (here is the decision in Perfect 10 v. Google) by the Ninth Circuit Court of Appeals is important on a number of points.

The Court of Appeals variously upheld and reversed parts of the previous district court ruling, but the upshot was that fair use was found for three specific activities: the routine caching that computers must do to display web pages, in-line linking and framing of web pages where the target page never resides on the server controlled by the web author doing the linking, and using thumbnail versions to index images found elsewhere on the web. None of these holdings are unique or new, but the Ninth Circuit does a nice job of explaining the technology involved and the reasoning behind its ruling. The “server test” used to find that in-line linking is not an infringement seems so simple and intuitive that one has to fear that other courts will try to complicate it. Linking, of course, is an important way that higher education tries to avoid infringement, so it is nice to be reassured.

As for caching, it seems amazing that we should have to be reminded, but the Court’s analysis is clear and useful:

[E]ven assuming such automatic copying could constitute direct infringement, it is fair use in this context… a cache copies no more than is necessary to assist the user in Internet use… Such automatic background copying has no more than a minimal effect on Perfect 10’s rights, but a considerable public benefit.

The only rain on Google’s parade is some language about secondary liability (liability for contributing to direct infringement by someone else) that could pose problems for Google in that part of the present case, which was remanded to the lower court, and in the future. An nice explanation of the potential harm in this part of the opinion is available here on Prof. Wendy Seltzer’s blog. For higher ed., however, this case is a nice reminder of principles that are necessary and ought to be obvious.

Copyright Issues and Legislation, Fair Use

Criminal infringement?

A colleague has recently posted a comment wondering about the impact of a piece of legislation suggested to the Congress this week by Attorney General Gonzales’ office, the “Intellectual Property Protection Act of 2007.” In a letter sent to the Speaker of the House and the President of the Senate, the AG proposes a series of amendments that would increase the enforcement of, and penalties for, criminal copyright infringement.

For most of our history, copyright has been an entirely civil matter, where an aggrieved party would sue the infringer directly for money damages and, sometimes, an injunction to stop the infringement. Only in recent years have we included criminal infringement in the law, where the government itself prosecutes the infringer and penalties can include fines and jail time. Most infringement is still handled through civil suits, but section 506(a) of the Copyright Act now defines criminal infringement in pretty broad terms. For infringement to be prosecuted as a crime, it must be willful, done for commercial advantage or financial gain, and involve either the copying and distribution of works with a total retail value of $1,000 or more or the distribution of a commercial work on a public network. This definition is broad enough to catch many activities like file-sharing in the criminal net, as it is intended to do, but it could also conceivably be used to prosecute other activities that occur in higher education, if the courts were to interpret “willful” and “commercial advantage” broadly enough.

The proposed changes to the law of criminal infringement include increasing penalties (up to life imprisonment for counterfeiting activities that result in a death), including “attempted infringement” as a new offense, giving wiretap authority for infringement investigations and making it easier for authorities to seize materials used in criminal infringement.

While some of these changes seem like a bad idea to me (like the notion of attempted infringement), it is not clear what impact they would have on the fair use provision that is so important to higher education. Presumably a reasonable reliance on fair use would defeat the willfulness requirement for criminal penalties to apply. My broader concern is that the increasing treatment of copyright infringement as a criminal offense is fundamentally opposed to the purpose of intellctual property law as expressed in the Constitution. Congress is allowed to make law around copyrights and patent rights in order “to promote the progress of science and the useful arts.” This justification reminds us that intellectual property is a public good and is thus different from physical property. Once we start treating copyright law as protection for a purely private property interest, similiar to laws against car theft, we step outside the rationale for federal action. Criminal law is usually a matter for the states, and Congress should remember that the reason it is given the power to legislate in this area is precisely because more is involved in copyright than mere private interests.

Scholarly Publishing, Technologies

RSS explained by Educause

A couple of months ago I wrote about Educause’s “7 Things You Should Know About Creative Commons,” which is part of a series designed to help faculty and administrators keep current with technologies that impact scholarly communications.  Now a new virtual pamphlet is available, “7 Things You Should Know About RSS.”  RSS, which is usually said to stand for “Really Simple Syndication,” is an Internet protocol that allows users to subscribe to content feeds from lots of blogs and other web resources, and aggregate that content into a convenient reader.

Many readers of this blog probably already know about RSS, since it is one of the ways to subscribe to our feed.   But it is worth keeping this simple, jargon-free explanation in mind, along with the other 2-page pamphlets in the series, because they are so useful for explaining to others those things that we ourselves might use frequently but have difficulty articulating.  As it does so often, Educause has provided an important service to the world of technology in higher education.