All posts by Kevin Smith, J.D.

Fair Use, Scholarly Publishing

Fair Use on NPR

A recent NPR story highlighted fair use as an important exception to the exclusive rights of copyright holders and discussed the Stanford Fair Use Project, a legal clinic designed to help artists, scholars and others defend fair use as they create new works.  Although the focus of the story was a humorous and highly irreverant video creation that depicts Jesus Christ dancing to Gloria Gaynor’s well-known song “I Will Survive,” there is a good deal in the story for more traditional academic authors and creators to take note of, and perhaps to worry about.

 The Stanford Fair Use Project convinced Universal, the music company that owns the rights to the Gaynor song, to back down by sending a letter pointing out the strong protection given to parody in fair use doctrine.  Many scholars will also have heard of the Fair Use Project earlier this year because of their role in helping a scholar who wrote a book about James Joyce’s daughter Lucia wrest from the Joyce estate a concession that she could publish letters written by Lucia and her father as part of her work. (There is an interesting article about Lucia Joyce and Professor Schloss’ work here.)  One of the points from that conflict, that is reenforced in the NPR story, is that publishers are often unwilling to publish work that uses copyrighted material in spite of the vital role of fair use in making critical scholarship and comment possible.

Almost any campus official who deals with copyright can tell stories about the trials of helping scholars get work published when copyrighted material — often letters and/or illustrations — is involved.  Sometimes the publisher demands that the author obtain and pay for all the permissions, even when a clear case for fair use can be made and the project lacks the funding to pay permission fees, or else a copyright holder denies permission (as the Joyce estate did) and the publisher is unwilling to proceed in reliance on fair use. 

It is not surprising that publishers are wary of getting sued, no matter how strong their fair use defense might be.  It is expensive to defend even a baseless lawsuit, and, as the Director of the Stanford Project pointed out to NPR, copyright holders frightened by the digital revolution are resorting more and more to frivolous threats in order to prevent creators from relying on fair use.

 Scholars should take note that a critic of the Stanford Center and of strong fair use protection in general claims in the story that universities are trying to destroy the very idea of intellectual property and he advocates a greatly restricted application of fair use.  As absurd as the first claim is, since scholars are major producers of intellectual property, the threat of more restricted fair use protection is very real.  Powerful voices are calling for less fair use, an academics must be aware of its role in scholarly production and actively assert it where it applies.  The goal is not so much to push the fair use boundaries forward but merely to keep them where they have traditionally been, as a bulwork to encourage and protect scholarly creation.  

Open Access and Institutional Repositories, Scholarly Publishing

Sign of the Times

It has got to be significant for higher education when the New York Times endorses open access textbook publishing. That is exactly what happened in yesterday’s editorial about a proposed discloser law for textbooks being considered in Washington state. The concern over textbook prices is not new, of course, but the attention the NY Times gives to an open access model surely is unusual. The editor moves from endorsing the proposed law to suggesting that disclosure is not enough; “creative solutions” like the Rice University Connexions project are required.

Connexions is an open-source and open content experiment at Rice, supported by the William and Flora Hewlett Foundation, that allows users to create and publish academic “modules” that others can locate, download and print for educational purposes. All of the content is offered under a Creative Commons license. The Times notes that one can print a 300 page textbook in electrical engineering from Connexions for a lot less money than it would cost to purchase a similar work, and right now users can also find featured course material for music and corporate governance at the site. In fact, there are almost 4,000 modules available on Connexions, browsably by subject area. With the NY Times getting on board, this may be a real harbinger of the future in higher education.

Copyright Issues and Legislation, Open Access and Institutional Repositories

Public Domain according to Google

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It has been a busy two weeks, and I am rather late in adding my comments to Raizel Liebler’s “Open Letter to Google.”

The letter, which points out that Google declines to treat government documents as public domain works, even though section 105 of the Copyright Act says that copyright is not available for any work of the US government, has attracted considerable comment, but I still want to add my two cents.

Although Google seems to be the biggest champion copyright reformers have these days, there are several reasons not to rely too heavily on a large corporation principly interested in its own bottom line.  As I have noted before, if Google uses its deep pockets to settle its fair use conflict with publishers, the situation for the rest of us is likely to be worse, not better.

Another problem with the Google Book Project is the speed with which it is being carried out, and the consequent inability to take adequate care for the results.  As I librarian, I was distressed to find, while helping a researcher who had located a”snippet” on Google, that the citation on the snippet page was not to the correct source of the passage.  The title page image displayed with the snippet referenced yet a third work, neither the one cited nor the source of the snippet.  Such lapses make Google very problematic for its stated purpose — online access to the world’s off-line literature.

Raizel’s letter points out another problem — Google is assuming a overly narrow view of the public domain.  Whether government documents are excluded because it is too difficult and time consuming to decide what is or is not a government work or because of an obscure fear that copyrighted work might be cited with a government production, the public is being denied some of the benefit promised.  Google’s representation of the public domain is further constrained by the assumption that all post-1923 works are protected, even though the protection on many will have lapsed due to non-renewal, back when renewal was required.  The public domain according to Google is much smaller than it needs to be, and those who hope that Google will lead the way toward free digital access to our shared intellectual heritage should take note and scale back their expectations.

Copyright in the Classroom

WKRP in copyright limbo

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How do the struggles to release a DVD of a 1970s era sit-com inform our difficulties with copyright in higher education? At the very least, the problems encountered in preparing a DVD of “WKRP in Cincinnati” illustrate the complex layers of rights with which academics who study or create multimedia must deal.

Those of us old enough to remember WKRP will recall that, in a sit-com set in a radio station, pop music was a central part of the story. Often the humor of a particular situation was created or enhanced by the music being aired on WKRP. The sound track of the show was a collection of contemporary pop, but the producers only licensed those tunes for a limited time. It was difficult, in 1982 when the show ended, to anticipate the need to release the shows in a format that had not yet been invented. But once the licenses expired, the music could not be used in subsequent releases, so a DVD of the show has been long delayed.

As William Patry explains in his blog post on this case, the complexity of music copyright is that there are multiple rights and rights holders for each recording, including, at least, a copyright in the underlying composition (sometimes one for the music and one for the lyric) and a copyright in the performance. When dealing with video, the rights situation is even more complex, with layer upon layer likely owned by different people. These are the complications that go into re-releasing a TV show, but they are also the difficult shoals that have to be navigated when an academic wants to use existing video to teach filmmaking techniques, for example, or get permission to put a video into a digital archive.

The good news (if you were a fan) is that WKRP in Cincinnati will be released on DVD shortly. The bad news is that much of the contemporary pop music has been replaced with “elevator music” versions that were much cheaper for the producer to license. All those classic songs will no longer be “living on the air in Cincinnati.”  This small piece of TV history has fallen victim to the same burgeoning and increasingly expensive market for permissions that holds back much academic innovation in multi-media.

A more serious look at these problems for higher education can be found in the 2006 white paper from the Berkman Center for Internet and Society called “The Digital Learning Challenge,” which is linked under recommended reading in the right hand column, through our Connotea feed. It is a detailed (and rather discouraging) look at the many ways current copyright law hampers digital teaching and learning, and it isn’t even enlivened by a sound track featuring Pink Floyd or Blondie.

Copyright Issues and Legislation

Would a new copyright law be good news?

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Professor Jessica Litman of the University of Michigan (and author of “Digital Copyright”) recently spoke at the Duke Law School in a lecture sponsored by Duke’s Center for the Study of the Public Domain.  Although I was traveling on the day of her lecture, I had a chance last week to listen to the webcast, and I was especially struck by her comment that the U.S. is in the early stages of a copyright revision cycle.  Recognizing that the last such cycle took nearly twenty years, it still seems appropriate to ask, assuming that Prof. Litman is correct, whether or not this would be good news.

At her Collectanea blog, our scholarly communications colleague at the University of Texas, and well-known copyright attorney, Georgia Harper has been emphasizing new business models that are developing around intellectual property and discussing whether or not those new models bode well for educational and consumer uses of protected material.  See her posts here and here for this excellent discussion.  Litman’s suggestion, however, that we are starting to see movement toward a revised copyright law, raises a similar question about how a new law might be better or worse for education and for consumers.

With no details at hand, detailed speculation is useless, of course, but it is still possible to take note of one possible dynamic.  It is certainly true that, in the piecemeal amendments to the copyright law that we have seen in recent years, consumers and educators have not fared well.  Is there any reason to think we might do better in a complete overhaul?  I think there is.  When Congress is considering a small change to the copyright act, they tend, I suspect, to listen to the industry voices that they hear from most regularly.  When time and attention is limited, one pays attention to the sources of information and opinion that are familiar and close at hand.  But in the longer process of a complete revision, it is likely that other voices will get to the table and will be heard more thoroughly; education groups and consumer advocates would, I hope, have a more complete opportunity to make their case about how copyright helps and hinders them, both to Congress and to an increasingly interested public.

I don’t know if Prof. Litman is right about a new revision cycle or not, but until I have reason to believe otherwise I am going to treat the possibility as a reason for optimism.

Copyright Issues and Legislation, Fair Use

File-Sharing, YouTube and the DMCA’s chilling effect

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With a new round of litigation threats from the Recording Industry of America, there has been a lot of attention, and confusion, about what obligations internet service providers have to respond when notified of allegedly infringing activity. The phrase “take-down notice” is beginning to enter our collective vocabulary, but it is important to understand to which situations it does, or does not, apply.

The take down notice is a product of section 512(c) of the Copyright Act, added by the Digital Millenium Copyright Act of 1998, and it is applicable only when the allegedly infringing material resides on the servers owned by the internet service provider. There is substantial evidence that these notices are used by content owners to remove critical material from the web even when the claim of copyright infringement is very weak.

A recent, almost comic, contratemps between law professor Wendy Seltzer and the NFL nicely illustrates how take-down notices work. Prof. Seltzer copied and uploaded to YouTube a short section of the Super Bowl broadcast — the part where they read that overly broad copyright warning that says that even “descriptions and accounts” of the game must be authorized by the NFL — in order to illustrate the absurd claims that some copyright owners use to try to frighten people from making legitimate uses of content. The NFL promptly sent a take-down notice to YouTube, which removed the video and notified Professor Seltzer. She responded with the statutory counter-notification that asserted her posting of the video clip was fair use, and YouTube put the video back. Then the whole cycle was repeated again. The clip, restored for the second time on April 4, is still on YouTube as of today, and Prof. Seltzer has certainly made her point about how copyright assertions, and especially the DMCA take-down procedure, can have a chilling effect on legitimate expression. (See Wendy Seltzer’s blog as well as the “Chilling Effect Clearinghouse“).

But when infringing material does not reside on the service providers’ own equipment (as clips in YouTube reside on Google-owned servers), then neither the take-down notice and counter-notice nor the expedited subpoena process apply. Thus, in cases of peer-to-peer file sharing, where the infringing material is only transmitted over the service provider’s network but is not stored or maintained on that network, the 512(c) procedure can not be used.

So what is the RIAA sending to universities regarding file sharing? The recent batch of letters sent to university DMCA agents, who are designated to receive take-down notices, have taken two forms. One is a “settlement offer” that is identified only by an IP address and that asks the institution to pass on to the student associated with that address. When and if the letter is passed on to the correct student, that person is told to go to a specified website and settle the claim for infringement or risk being sued. Since this procedure saves the RIAA the time and trouble of getting a subpoena to learn the identity of each student alleged to be sharing files, it is much more efficient for the RIAA; it puts the institution in the middle instead.

Some schools have responding by saying that they do not retain server logs long enough to match the dynamic IP addresses referenced in these settlement letters to the offending student, so the RIAA has added another letter, demanding that the institutions retain records in anticipation of possible litigation. Whether or not this demand is legally enforcable is a debated issue, but many universities are complying with both letters out of concern not to leave students unaware of their risk of litigation. So now the “chilling effect” that has long been associated with the DMCA is being exploited to save time and increase settlement revenues for the recording industry.

Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing

Thank you, Stanford

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The copyright world owes a debt of thanks to Stanford University for creating a database of copyright renewal records for books published between 1923 and 1963. These dates are significant because anything published before 1923 has fallen into the public domain, while works published after 1963 had their copyrights renewed automatically by the 1976 Copyright Act. That leaves a lot of material in a kind of netherland — assuming the book was published with notice and registered, its copyright had to be renewed (under the earlier U.S. copyright law) after the initial 28 year term in order to have a second 28 year term. If a registration was not renewed (and many were not), the work fell into the public domain; if it was renewed, the work was automatically brought within the ambit of the new law and will be protected until at least 2019.

So it has been very important to know if these mid-century works were renewed or not. Unfortunately, the only Copyright Office records at the Library of Congress that are online are those filed after 1977, so there has been a big gap for which one either needed to search the printed volumes that were published every six months or just give up on knowing for certain. Now it is possible, and much easier, to determine with some precision whether or not many mid-century works are in the public domain and, therefore, freely available for scholarly use, digitization by libraries, etc.

It is interesting that the Google Book Project has treated all post-1923 publications (even government publications that are not subject to copyright protection) as still protected by copyright, giving that project an artifically narrow window on the public domain. Because Google’s scanning work is done so fast and in such volume, it is probably unrealistic to expect them to make fine copyright distinctions. Nevertheless, those distinctions just got a lot easier, and it is to be hoped that Google, or other digitization projects, will use the Stanford database to provided greater access to material that really is the common property of our intellectual heritage.

Copyright Issues and Legislation, Fair Use

The downside of playing nice

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There has been lots of talk in copyright arenas recently about settlements. Some settlements, like the “pre-litigation” settlements the RIAA is offering to college students, where the industry collects roughly the same amount they had been getting from their lawsuits without having to bear the expense of actually filing, are clearly bad deals for the public.  But the downside of other settlements is not so obvious.

Recently English professor Carol Schloss settled her lawsuit against the James Joyce estate. She had sought a declaratory judgment that quoting from unpublished letters between Joyce and his daughter Lucia in a scholarly book was fair use, and the settlement was clearly a victory for Schloss. The Joyce estate agreed not to sue her for using the excerpts, which had been removed from her book about Lucia under threat of an infringement claim, on her web site and in future publications. But it is less clear that this is a victory for scholarship in general. If the case had gone to trial, a decision would have had precedential value, and we would have had another bit of clarity in the murky world of academic fair use. Fair use is so ambiguous that scholars often refrain from certain uses simply to avoid the uncertainty. Most of us assume that quoting from primary sources in scholarly work, just as Schloss wanted to do, is fair use, but it would have been nice for a court to confirm our impression.

Instead, the settlement agreement only resolves the issue between the parties to the case and has no impact on fair use for the rest of academia. In fact, the AP paraphrased the attorney for the Joyce estate this way: “Nelson also noted that the estate granted only Schloss permission to quote the materials under limited circumstances, meaning neither she nor other scholars would be permitted to use them outside the scope outlined in the settlement agreement.” Not really a Phyrric victory, but not a helpful one either.

Suggestions that the various publishers who are suing Google over the Book Project might settle for some lump sum payment from Google’s deep pockets offer a similar prospect. If Google were to lose its fair use claim in court, of course, the effect on fair use for the rest of us could be profoundly negative. But if they fought on and won, the prospects for library digitization and public access would be much brighter.  A settlement, however, will set only one precedent — that lots of money can solve all disputes. It will not clear up the fair use picture and it will not benefit libraries that can not afford to purchase the right to digitize their collections for the benefit of the public.

So with all due respect to my grandmother’s admonition to get along with everyone, I have to recognize that sometimes there is a downside to playing nice and coming to a settlement agreement.

Copyright Issues and Legislation, Digital Rights Management, Fair Use

More about the FAIR USE Act

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Several weeks ago I promised more comment (read previous post here) after I had read up on the proposed law, so here goes.

Perhaps the biggest confusion about the FAIR USE Act is caused by its name; since it is really aimed at reforming the anti-circumvention rules of the DMCA, it does not directly deal with the fair use provision of the Copyright Act.  In fact, in his remarks while introducing the bill, Rep. Boucher explicitly stated that “the revised bill does not contain the provision which would have established a fair use defense to the act of circumvention.”  Boucher’s co-sponsor, Rep. John Doolittle acknowledged in a recent interview that it was necessary to narrow the scope of the bill somewhat by eliminating such a provision because the content industry would oppose a full fair use defense so vigorously.

But the FAIR USE Act does not entirely ignore fair use either.  Rather inconsistently, Rep Doolittle, in the same interview mentioned above, also referred to the proposed bill as an attempt to “preserve fair use for the consumer.”  What the FAIR USE Act actually would do is to introduce an exception to the anti-circumvention rules that is not as broad as fair use, but that would establish a defense to charges of circumvention that looks a lot like fair use.  Specifically, section 3(b)(v) of the new bill would allow circumvention to gain access to “works of substantial public interest… for purposes of criticism, comment, news reporting, scholarship, or research.”  This sure sounds like fair use, especially in its focus on activities strongly protected by the First Amendment.  One major difference is that, by providing an exclusive list of the allowable purposes for circumvention, this bill would not permit circumvention for most commercial purposes, even if the use would otherwise fit within fair use.  Also, “works of substantial public interest” is presumably a narrower category than all the works that might be subject to fair use, but defining this narrower category would certainly generate as much as litigation as fair use itself does.

The big question for the FAIR USE Act is whether it has any chance of passage.  Two previous versions (which did include a full fair use defense to circumvention) failed to advance very far in Congress.  Rep. Doolittle admits frankly that the change to a Democratic-controlled Congress has not significantly improved chances this year, since the new Chair of the relevant House committee is less sympathetic to the bill than his predecessor.  The hope is that the somewhat narrower scope of the bill, combined with increasing public awareness of the draconian impact of DMCA anti-circumvention rules, will improve the environment this time around.  Given the other valuable (and necessary) provisions found in the bill for libraries and for classroom teaching, even a version without the broad exception quoted above would be worthwhile.

Listen here to a podcast (optomistically called “The beginning of the end for the DMCA”) of the interview with Rep. Doolittle about H.R. 1201 , the FAIR USE Act. 

Authors' Rights, Scholarly Publishing

Another warning for faculty authors

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Our Scholarly Communications colleague at UNC, Deborah Gerhardt, just published this important warning about publication contracts in the Chronicle of Higher Education.

Her point that so-called “non-compete clauses” can hamper a scholar’s ability to publish later work on a particular topic is another reminder that, as the conflicts over copyright get more intense, it is vitally important to read publication contracts carefully. Deborah provides examples of language to look for and language to beware of, and the Duke Scholarly Communications office is always willing to help examine publishing agreements for faculty and student authors in order to protect those rights that are most important for supporing continued creativity and scholarship.