As [...]]]> The snowballing petition on which scholars pledge to boycott Elsevier is gaining a good deal of attention.  There is an article in today’s Chronicle of Higher Education, and this more general article about the future of Elsevier’s business model from Forbes.  As of today the boycott pledge has over 2100 signatures.

As the Chronicle article points out, the petition lists three “charges” against Elsevier:  their extremely high prices, the practice of “bundling” so that institutions have to buy journals they do not want in order to get the ones they do and hence have less money to buy other things, and corporate support for the Research Works Act and other legislation that would threaten the free flow of information.

While I agree that all of these things are significant problems in the current scholarly communications environment, I have to say that Elsevier is not the only “sinner” guilty of these infractions, or necessarily even the most culpable among commercial publishers.  This does not mean I am particularly sympathetic to Elsevier, and I am glad to see the petition for a couple of reasons.

First, the boycott movement is coming from scholars themselves.  It is not simply a matter of radical militant librarians (some of my favorite people, btw) who are upset about high prices.  This petition represents a growing awareness amongst scholarly authors that traditional publication models not only are no longer the only option, but in fact may be bad choices for those concerned with the overall dissemination of knowledge.  It is simply becoming clearer to many scholars that the values they hold are not the same as the ones that commercial publishers are pursuing.

Second, when framed as a divergence of values it is much easier to see that the core issue in this movement is who will control the the changing course of scholarly communications and the scholarly record.  It seems less and less acceptable to trust commercial publishers with the responsibility for scholarship now that we no longer will be dependent on the printed artifacts they created.  As scholarship becomes digital, we are quite rightly seeking new models of control that serve the needs of scholars first, regardless of the business models that may thereby be left behind.

One of the reasons I do not believe in the “abolish copyright” movement is because I think the control over how a work is disseminated and used by others will continue to remain important to scholarly authors.  Copyright desperately needs reform (or else it needs more scholarly authors who use Creative Commons licenses to leverage their economic rights to protect things like attribution, which actually matter to academics) but it is not likely to become irrelevant in the digital environment.  Instead, scholars will seek new ways to use the rights that vest in them (not their publishers) to control their works in ways that best serve their own needs and the interests of their particular discipline.  Boycotting Elsevier may not bring about that revolution by itself, but it is a step toward demanding that the rights and concerns of scholarly authors themselves actually drive decisions about how scholarship is shared in the digital environment.

The case involved the complex and technical [...]]]> Today the Supreme Court issued a decision in the case of Golan v. Holder which is a significant defeat, I think, for the public domain in the United States.  Reading the opinion has made me wonder if we have really strayed from our fundamental commitments about intellectual property.

The case involved the complex and technical issue of restored copyrights in foreign works – works that were originally created and published abroad.  As part of the U.S.’s decision to join the Berne Convention and other international treaties on intellectual property, Congress enacted an amendment to the Copyright Act, now found in section 104A, that restored copyright in foreign works that had risen into the public domain in the U.S. but were still protected in their countries of origin.  The effect was to remove works from the public domain after they had already lawfully become the property of every U.S. citizen.  Several groups, including musicians, publishers and others who had relied on the ability to freely exploit these public domain works, brought a lawsuit to challenge the constitutionality of this unprecedented alteration in the terms of the copyright bargain.

Those groups lost today.  Six Justice of the Court found that the “Uruguay Round Agreements Act,” which enacted this restoration of copyrights, neither exceeded Congressional authority under the copyright and patent clause of the Constitution nor created a conflict with the guarantee of free expression found in the First Amendment.  The full decision can be found here, and there is a brief report from the Chronicle of Higher Education as well.  For me, several recent readings and discussions provided a context as I read the decision.

Last night my colleague Will Cross and I were teaching a class session on copyright for library students.  Will discussed (among other things) two aspects or principles of copyright decision making that seem relevant to today’s decision.  First was the idea that the federal courts tend to show great deference to Congress in the area of copyright.  That deference is very evident in today’s majority opinion: “This Court has no warrant to reject Congress’ rational judgment that exemplary adherence to Berne would serve the objectives of the Copyright Clause.”

The other principle Will discussed was the incentive purpose that is given as the reason, in the Constitution, for allowing Congress to enact intellectual property laws.  This purpose is pretty clearly rejected by the majority, when Justice Ginsberg writes that “Nothing in the text or history of the Copyright Clause, moreover, confines the ‘Progress of Science’ exclusively to ‘incentives for creation.’”  It is hard to see how else that clause can be read, and Justice Breyer, in his dissent, provides a compelling account of why the U.S. enacted copyright in the first place, and why it is supposed to be limited.  He goes on to note that “The statute before us, however, does not encourage anyone to produce a single new work.”

It seems clear to me, as it does to Justice Breyer, that the wording of the Constitution’s Copyright Clause was to restrain Congress and direct that laws serve a specific purpose.  The majority of the current Court, however, does not see it that way.  We really have opposing visions of copyright law at work here, and the deference to any Congressional enactment, no matter how one-sided and counter-productive to new creativity, has made the Constitutional language increasingly ineffective.  It is one of those situations where we must hope that, over time, the persuasiveness of the dissent will eventually move it to be the majority view.

I recently read an article from 1890 on “The Evolution of Copyright” by Brander Matthews.  It was written just as the Berne Convention was being formed, and its intent was to commend the new international organization to U.S. lawmakers.  Matthews is clear about how much the Berne approach, modeled on the French “natural rights” view of copyright as it is, differs from the approach taken in England and the U.S.  Clearly he hopes the U.S will change course.  For nearly a hundred years that did not happen, but perhaps now we are seeing, unfortunately in my view, the steady erosion of the instrumentalist view of copyright that has prevailed in the U.S. for some time, and is enshrined in our Constitution, in favor of a natural rights approach that favors those who already own rights even when that favoritism disadvantages those who would create new works.

To slightly change focus, however, I want to end with one note of optimism.  The past couple of weeks has seen, in my opinion, a remarkable awakening of public interest in copyright and access issues, sparked by a couple of unfortunate pieces of legislation.  There has been a lead article about open science in the New York Times, and the 24 hour shut down of Wikipedia in protest over one of these bills – the Stop Online Piracy Act — has made digital copyright a topic of national discussion.  The web site PopVox has set up a central site for comments and advocacy against the other bill, called the Research Works Act and designed to undermine efforts toward public access for publicly-funded research.  With all this attention, it is still possible to hope that public pressure, and especially concern over the functioning of the Internet, will begin to turn our national focus back toward that instrumental and incentive-based view of copyright.

Of course, the most radical effort to break the Internet so that it does not [...]]]> In the past few weeks I have seen several news reports and other actions that seem to form a pattern, where the traditional publishing industry has set out to break digital technologies in order to preserve their traditional business models.

Of course, the most radical effort to break the Internet so that it does not threaten the legacy content industries is the Stop Online Piracy Act, about which much has been written.  I was disheartened by the plausible suggestion that the decision to suspend the House’s hearings on SOPA last year and renew a push for it in 2012 was not due to real objections but was merely a ploy to solicit more donations from the movie and recording industries. Unfortunately, this is often the way the legislative “sausage-making” process works.  But I want to look at some other attempts to hobble digital technologies that strike closer to the publishing that is the most common form of dissemination on our campuses.

On Christmas Day the New York Times ran this story about the “tug of war” between publishers and libraries over e-books.  The writer is very sympathetic to publishers’ efforts to maintain exactly the revenue streams they have been accustomed to in the pre-digital era, but what struck me most is the language used.  Repeatedly the article talks about “inconvenience” and “friction,” stressing that “borrowing an e-book… has been too easy.”  As the author says “to keep their overall revenue from taking a hit… publishers need to reintroduce more inconvenience for the borrower.”  This librarian commentator makes the key point: it isn’t that the technology does not work, but that publishers do not want it to work as well as it does.  They want to break the technology that is available, so that user experiences are less seamless.  They only see a role for themselves if they can offer assistance overcoming inconveniences that they have introduced in the first place!  And perhaps they are right about that.

Another example of this failure to do what digital technologies allows you to do can be found in this article from the Chronicle of Higher Education, which reports on a study about textbook choices that found that e-textbooks offered little savings.  The problem, the authors acknowledge, is not the technology but “publisher pricing decisions.”  It seems we cannot really take advantage of the benefits offered by these new technologies until we free ourselves of ties to publishers who cannot imagine any other way of doing business than the way, and at the price, that it always has been done.

Last week Bloomberg News reported on a lawsuit brought by HarperCollins to prevent the publication of an apparently unauthorized e-version of a popular children’s book.  The suit will turn on the language of the contract between the author and HarperCollins, about which I cannot comment.  But it is striking to me that the publisher is not complaining about competition with their own e-version of the book because they do not offer one.  They simply want to stop anyone else from creating an e-book unless and until they figure it out (presumably when they decide how to introduce sufficient inconvenience).  They may have the legal right to do that, but they are clearly not interested in responding to consumer demand.  Indeed, it seems that the author of the book is interested in providing a digital version, but the publisher has told her that they have that right and she does not.  The lesson is that authors who do not want their readers to be burdened with artificial inconvenience should negotiate more carefully with their publishers.  It may often be in the best interests of authors to withhold the right to offer an electronic version of the work in an initial publication agreement and consider seeking another platform or publisher, one perhaps less wedded to inconvenience, for the e-book version.

This, of course, is a process increasingly familiar to academic authors.  For years scholarly authors of journal articles have engaged in a tug-of-war with publishers over how best to exploit digital technology to serve the best interests of scholars and scholarship, rather than just the profit motives of publishers.  Once again the publishing community has resorted to legislative attempts to try to dictate what scholarly authors can and cannot do with their own copyrights.  Over the holidays the “Copyright in Research Works act,” a re-tread from the last legislative session, was introduced again.  The bill would reverse public access programs like that of the National Institute of Health and make other such programs illegal, essentially telling taxpayers that they have to pay twice to see the research they have funded.  The publishers are clearly asking Congress to break the Internet legislatively so that their toll-access sites are the only source for scholarly information.

What I find most astonishing is the immediate expression of support for the bill that came from the Association of American Publishers, and this sentence in particular:

The Research Works Act will prohibit federal agencies from unauthorized free public dissemination of journal articles that report on research which, to some degree, has been federally-funded but is produced and published by private sector publishers receiving no such funding.

I am stunned by the audacity of the claim that research articles are “produced” by private sector publishers!  I think the producers of these works are sitting at desks and labs scattered around my campus, and thousands of other college and university campuses.  They are not paid by publishers either to do the research or to write their articles.  And I do not believe that the journals that publish those articles actually add any copyrightable expression to what has been written and revised by our faculty members.  If they do, the scholarly authors have a right to complain, since such additions without the author’s cooperation would compromise the integrity of the scholarly record.

We cannot say it often enough.  The intellectual work for scholarly publications is done by academics, not publishers.  They own the copyright in those works up until they are asked to transfer it to the publisher as a condition of publication. And if publishers persist in interfering with that copyright ownership and insisting that scholars cannot take advantage of the tremendous opportunities that digital technologies offer, the solution is to stop giving them those copyrights.

One of the consistent themes in this space has been the increasingly poor fit between the copyright law as it stands and new technological options for communication that seem to be developing so quickly.  While it is not directly related to scholarly communications, [...]]]> This post is a collaborative work by David Hansen and Kevin Smith.

One of the consistent themes in this space has been the increasingly poor fit between the copyright law as it stands and new technological options for communication that seem to be developing so quickly.  While it is not directly related to scholarly communications, a recent court case about remote DVD players serves as a nice illustration of the tensions that arise when we tried to pour the new wine of technology into the old wineskin of our 1976 copyright act.

As explained by Wired.com, the system works as follows:

The company literally rents you a DVD and a DVD player, with your computer, tablet or Google TV as the remote control. Unlike the other streaming movie services, Zediva doesn’t turn a movie into a file on its servers that it can serve to as many users as care to see it at once. Instead, Zediva’s servers have DVD drives and actual DVDs. So when you rent a movie, that disc goes out of circulation until you release it back to the company, just like in one of those increasingly rare real-world video stores. And like those video stores, Zediva doesn’t need to get permission from the studios to rent out discs, since once they buy the DVD they are free to rent it out or re-sell it, thanks to the first-sale doctrine in U.S. copyright law.

One article calls Zediva a business relying on a “loophole.” But these “loopholes” are key to figuring out how copyright law applies in the digital age, and whether we will allow terminology routed in the mid-20^th century to restrain innovation in the 21^st. The judge presiding over the Zediva case viewed its conduct as outside the law, and ordered the service to halt operations. Central to the his order forcing Zediva’s to temporarily halt operations was his holding that the service likely “transmits” the DVD content to “the public,” thus violating the rights holders’ exclusive right to control public performances of the work (17 U.S.C. § 106(5)).

Copyright law defines the public performance right as exclusive control over either performance or display of a work to a group outside a normal circle of family or social acquaintances, and “to transmit or otherwise communicate a performance or display of the work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” The terms “transmit” and “the public” are italicized because it is the definition of these two terms that determines both the case and the way copyright law responds to new cloud-based, personalized services like Zediva.

First, what does “transmit” mean? The copyright statute states that “to ‘transmit’ a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.” The judge in the Zediva case concluded that the service “clearly transmits plaintiffs copyrighted works” because the service “communicates” images and sounds beyond the place from which they are sent. But this raises the question—who communicates to whom? The Zediva judge held that “the fact that Zediva’s customers initiate the transmission by turning on their computers and choosing which of Plaintiff’’s copyrighted works they wish to view is immaterial.”  Transmission, under this theory, is omnipresent. While this construction is plausible based on the bare definition, it leads to absurd results. Can I really “transmit” or “communicate” with myself? Those rather existential questions aside, under this view every personal act to receive copyrighted works that are stored in a remote location is therefore a “transmission.” Of course, even under this expansive definition of “transmission,” there is still no infringement unless those “transmissions” are “to the public.”

So this raises the question, what does “the public” mean?   There is no definition of “the public” in the act, but it does specific that “the public” need not receive the transmission “at the same place . . . [or] at the same time.”  But can a transmission really be public if it is initiated and received by the same person?  The Zediva judge interprets it this way, based on the relationship between Zediva as a corporate entity and its users as “the public at large.”  But it is not at all clear that this is the sense that “the public” should have when interpreting the copyright act, where public is intentionally contrasted with “private.”

As with the judge’s treatment of “transmission,” this approach to “the public” leads to absurd results.  I am a user of Dropbox, which is a commercial service.  If I save a copyrighted article, of which I have made an authorized copy, to my Dropbox folder, then download it to my iPad (as I often do), have I really transmitted that article to the public?  The judge does try to distinguish personal copies from those retained by the Zediva service, but his use of “the public” does not seem to provide any principled ground for this distinction.

Of course it is possible that the Zediva customer will have thrown open his doors and invited the masses to see the rented video stream, but that is just as possible if the DVD of the copyright work is on site as well.  Does the mere fact of transmission make that risk any greater?  If not, how do we justify restricting the transmitted performance more than the “physical” one?  As this TechDirt column suggests, this approach seems to mean that copyright compliance depends on the length of the cable between the DVD player and the recipient’s TV.

This whole case serves as a reminder of how important it is for us to examine carefully those words in the law that seem obvious, vague or even unimportant.  These “loopholes” actually are central to figuring out how the law will accommodate new technologies and where, potentially, the law itself must change.

On Tuesday Judge Denny Chin set a deadline of mid-September for Google, the Authors Guild, and the AAP to work out a settlement for Google Books. The lawsuit, filed in 2005, seems to have been going on forever, and I wonder what, in the meantime, libraries can do [...]]]> By David Hansen, J.D., Scholarly Communications Intern

On Tuesday Judge Denny Chin set a deadline of mid-September for Google, the Authors Guild, and the AAP to work out a settlement for Google Books. The lawsuit, filed in 2005, seems to have been going on forever, and I wonder what, in the meantime, libraries can do to move forward. After looking at my own (personal) digital library, I wonder how the same principles regarding digitization might apply to institutional libraries.

Over the weekend I joined Google Music, a service that uploads my collection of music and stores it . . . somewhere. Somewhere in Google’s cloud. With it, I can access my entire collection of music from any computer. It’s great.

What is not great is my internet connection. I’ve had the service for about a week, and at this point only about half of my music collection is uploaded. Uploading large amounts of data understandably takes time, and since Google Music “store[s] a unique copy of Your Music on your behalf,” each and every file has to be transferred.  Uploading these copies is generally considered “space-shifting,” which is something that Google –and the courts—have concluded is lawful “personal use.”

Apparently there are other approaches to what Google Music does. Ars Technica has published this article outlining the legal positions of Google Music, Amazon Cloud Player, Apple’s iCloud, and MP3Tunes. All three services provide online streamed copies of user’s music collections. Apple does so with licenses from the record labels.

Google Music and Amazon Cloud Player both seem to operate as a “digital locker,” making unique copies of the user’s own files. They presumably rely on time-shifting cases that make users’ actions lawful, and on the Cartoon Network v. Cablevision case (discussed at length in the Ars article) which held that Cablevision would not be directly liable for “publicly performing” the works in question, although it provided a DVR service that allowed users to record and retransmit their own unique copies of previously transmitted shows. The court in Cartoon Network placed some emphasis on the fact that each user only had access to their own personal and unique copies of the recorded shows.

MP3Tunes acts in a similar way, but with two differences: First,  MP3Tunes will delete redundant copies when more than one user uploads identical files. This de-duplication process, while obviously more efficient than the Google and Amazon services, may conflict with the Cartoon Network case because each user accesses one centralized copy of their song, rather than multiple users accessing multiple ‘unique’ copies of the their own recordings. The second major difference is that MP3Tunes is currently being sued by EMI. Most of the suit focuses on the safe harbor provisions of the DMCA, and whether MP3Tunes can be held liable directly, notwithstanding the Cartoon Network case cited above, for “publicly performing” the works in question.  But another major issue is whether space-shifting to the cloud is a permissible fair use.

For libraries that want to make digital copies of their print collections—i.e., space shifting—there are some limited exceptions in the law that permit copying for preservation (section 108 of the Copyright act).  There is a need, however, to provide more complete digital access to the entire campus community beyond that which is contemplated by section 108. The University of Michigan (along with Florida, Illinois, and Wisconsin) has recently announced that it will be making available to campus users copies of orphan works, held jointly by the University of Michigan and HathiTrust, based on an assertion of fair use and its own risk analysis. The fair use argument relies on the idea that only works in each respective library’s print collection will be made available online to their users through the HathiTrust; one print copy, one digital access. No one is gaining access to books they don’t already own—just different, electronic access to those already in the print collection. The parallel to the ‘digital locker’ analogy that supports Google Music is strong, and the fair use argument for Michigan is bolstered even more by the fact that it isn’t in it for the money (as Google is).

This fair use assertion makes an end-run around section 108, but looking at the fair use factors, it is still appealing. Even more so for Michigan because a large part of the scanned corpus of the HathiTrust comes from Michigan, so for many books it would also be able to make the argument that the digital copies are not just practically the same books that are in its collection, but that they are identical copies of UM books, meeting some of the concerns of the Cartoon Network court.  Other libraries have less to rely on in that respect, as fewer (or none) of their physical copies were scanned for inclusion in the database. But the fact that Michigan and these other libraries are only making orphan works available means that even if the fair use analysis is slightly off, there is still almost no chance anyone will be sued. The orphan works identification process that Michigan has used (detailed here) employs a more than reasonably diligent search for copyright owners, and leaves little chance that there are any rights holders available or willing to bring an infringement suit.

Risk notwithstanding, though, I wonder, what’s wrong with a library digitizing its entire collection (not just orphan works) under the space-shift theory?  If the library takes those books out of circulation (perhaps in high-density storage) and limits online access to one user at a time (essentially, recreating the limitations of a physical visit to the library), the fair use analysis is still very much in the library’s favor. Google, in its amicus brief in support of MP3Tunes, makes the point well:

“[j]ust as the Supreme Court has held that ‘time-shifting’—recording television broadcasts for later viewing—is a lawful fair use, Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 455 (1984), so too is ‘space-shifting’ lawfully acquired music onto digital music players or cloud-based equivalents, Recording Indus. Assoc. of Am. v. Diamond Multimedia Sys., 180 F.3d 1072, 1079 (9th Cir. 1999). A contrary holding would treat tens of millions of iPod owners who lawfully acquire their media as no better than those who misuse new technologies to pirate music and movies. “

Should space-shifting books be any different? These cases, admittedly, deal with space- and time-shifting for personal uses, and not for uses of educational institutions. That distinction may be critical in the end.  But shouldn’t uses for “teaching . . .  scholarship, or research” — which are specifically called out in the section of the copyright act that codifies fair use — carry at least as much weight as “personal use,” which has no mention anywhere in the act?

Finally, if a library can digitize its own library and make it available to patrons, can that library pool its digital holdings with other libraries, so that there is no needless duplication of digital copies? Storing these works in digital format is not cheap, and while my meager 20GB music collection has taken a half a week to upload to GoogleMusic’s “cloud”, the creation and duplication of millions of volumes of digital volumes is a monumental and inefficient task.  Such a restriction, as amici in the MP3Tunes case have argued, would be incredibly burdensome to both digital libraries and users in general.

Swartz has been indicted on several [...]]]> One of Will Rogers’ best known aphorism is “I only know what I read in the papers.”  In line with Rogers’ irony, if all one knows about the Aaron Swartz case is what one reads in the blogosphere, one knows very little indeed, and much of it wrong.

Swartz has been indicted on several federal charges after allegedly physically and technologically gaining unauthorized access to the MIT network and downloading a huge number of files from JSTOR.  On that everyone agrees.  After that the claims about and arguments based on this event diverge dramatically.

Predictably, many bloggers (an example is this one from the Copyright Alliance) call these actions by Swartz “theft” or “stealing.”  As always when talking about intellectual property, these words are misapplied.  The formal definition of theft from Black’s Law Dictionary is “the felonious taking and removing of another’s personal property with the intent of depriving the true owner of it.”  It should be clear from this definition why we call authorized use of intellectual property “infringement” rather than theft.  What Swartz is alleged to have done did not remove the intellectual property and showed no intent to deprive the original owner of it; he merely made, allegedly, unauthorized copies, which does not have the effect of depriving anyone else of intangible property. JSTOR was never without these files and they have, in fact, recovered the unauthorized copies.

Whenever someone uses the language of theft in reference to intellectual property, they are trying to cover the weakness of their argument, in my opinion.  Let’s just say infringement and talk about both the legitimate reasons to protect IP and the public policy that permits some unauthorized copying.

By the way, Swartz has not been charged with copyright infringement either.  The charges of wire fraud, computer fraud and illegally obtaining information from a protected computer all relate to the hacking itself, not to the downloads.

Another place where serious misrepresentations abound is when we are told (as in this post on the Scholarly Kitchen) that Swartz has “done this before” because of a previous incident where he download large numbers of documents from PACER, a database used by the federal courts.  That incident, however, involved neither illegal access nor copyright infringement.  Although PACER usually charges a fee, Swartz used a computer at a university on which access was being provided for free as an experiment.  And the materials he downloaded – documents from the federal courts – are not protected by any copyright due to section 105 of the US copyright law.  To be sure, Swartz was protesting the fees charged for access to works created at taxpayer expense for the public good, but his actions in that case have no analogy to the behavior charge in this indictment.

One place where there is significant disagreement is about Swartz’s intentions.  Many bloggers simply assume that he intended to release all of the downloaded files to the public, although Swartz claims he intended to do text-mining research with the articles.  He has done such work before, so there is some plausibility to his claim, which may explain when infringement charges have not been brought.  So turning this into a debate about the open access movement is wholly inappropriate.  It is important to recognize that the victim of these alleged crimes was not JSTOR or any of the journals it aggregates.  The victim was MIT.

However fervently one shares Swartz’s goals for greater access to legal and scholarly information and publications, the actions for which he has been charged do not serve those goals.  Quite frankly, Swartz’s actions were not radical enough, in the sense that they did not get to the root of the problem. It is clear that the system of scholarly dissemination is badly broken, and simply hacking it does not change that fact.  The real change, the real solution Swartz (apparently) seeks, will be found only when the academic authors, the original holders of copyright, stop transferring those copyrights to publishers without careful reflection and safeguards on their right to disseminate their own work widely.