Monthly Archives: April 2015

Copyright Issues and Legislation

Copyright follies

The joy of being a copyright specialist is the amazing array of cool, beautiful, and profound things that make up the raw material of what we do.  It is a privilege to be granted even a tiny window into the creativity of the many people we get to work with.  And even the cases we only read about share in this astonishing diversity.

But let’s be honest.  There is also a lot of nonsense in the copyright world.  The idea of “owning” creative expression just makes some folks go a little nuts, and some pretty absurd claims get made about copyright (monkey selfies, anyone?).  So here is a quick review of some recent bizarre cases, although by the end of it we will have the opportunity to review some important principles about copyright law.

Perhaps a good place to begin is with the claim by descendants of Nazi Propaganda Minister Joesph Goebbels that they are entitled to licensing fees for quotes from Goebbels’ diaries that are used in a new biography of him.  One of the strangest things about this case is that it may well be a valid claim, although there is some dispute over who actually is the copyright holder, since most assets of the Nazi leaders were seized by the Allies after the war.  But the very fact that it is being raised suggests some interesting questions.  How much money would make it worthwhile to publicly identify oneself as a descendant of one of the worlds most vilified war criminals, an architect of the “final solution?”  And will there be a fair use/fair dealing defense raised, as the blog Techdirt has suggested?  It certainly seems like we should avoid a situation where a war criminal’s family would be in a position to censor a biography of him, which would be one possibility if they were found to hold copyright.  Random House seems mostly to assert the “no money to a war criminal” defense against the claim, but it is worth remembering that copyright is not only about money, it is about control.

Just before publishing this post I saw an excellent analysis of the issue of royalties for ex-Nazi’s or these descendants here, in Inside Higher Ed.

Another development this past week was the filing by John Deere in regard to a proposed exception to DMCA anti-circumvention rules in which they claimed that the software in a tractor is only licensed to a consumer, not owned by them.  It was inevitable that such a claim would be made eventually, and I predicted it somewhat eerily in this post from last year (substituting John Deere for Ford).  John Deere wants to sell you a tractor, and they are fine with you using it as you wish, unless you decide to modify the software.  At that point they assert that you, the purchasers, only have an implied license to use the software and that anti-circumvention rules would prevent modification, and should continue to do so.  What makes this claim more dangerous than absurd is that it raises the idea of new limitations on what we mean by ownership.  We thought that the doctrine of First Sale was sufficient to protect the traditional idea of ownership in regard to copyrighted material, but the DMCA, and the desire of some companies to suppress competition, has changed that.  What new and un-imagined restrictions on my use of the tractor in my driveway might be down the line from John Deere? We are getting ever closer to the point where our courts will need to develop clear guidelines about what it means to own a machine that incorporates copyrighted material.  In the meantime, I would think twice before I “bought” a John Deere tractor; I like to know what I am getting for my money, and John Deere seems to think they can upend my reasonable expectations whenever it suits them.

Most readers are likely already familiar with the next of the follies I want to discuss: the claim made on behalf of the bystander who filmed the police shooting of Walter Scott in South Carolina that he, the bystander, is entitled to a licensing fee — apparently as much as $10,000 — every time the media replays the video.  There are two especially troubling aspects of this claim.  The first is the absurd misunderstanding that leads to a statement that the fair use “period” has “expired” for this video.  There is not a time limit on fair use, of course.  It seems to me that a few people are confusing fair use, a statutory boundary on copyright that lasts as long as the rights do, with the so-called “hot news” doctrine.  The latter was the creation of courts, is of uncertain application, and was largely preempted by the 1976 copyright act.  In fact, the hot news doctrine was a limit on the exclusivity that a news organization could have over its report of newsworthy events, so the doctrine acted in the reverse of how it is being asserted, under the wrong name, in the Scott shooting video case.  Fair use continues to exist in spite of the lapse of time, and only a very poorly-advised news organization would accept this idiotic argument.

Which brings me to the most troubling aspect of this case, the apparent fact that the New York Times agrees that fair use can expire.  According to the Forbes report linked above, the NYT claimed that “copyright experts” agreed that this alleged fair use period has passed.  They quote a lawyer for the Copyright Clearance Center (hardly a disinterested party) whose argument, while using temporal language, can only sensibly refer to the specific conditions surrounding a particular use (i.e. whether the use is for the purpose of news reporting or not).  I wonder if the CCC can cite any case law for this proposition that fair use can expire?  If not, then they and the NY Times are just spreading FUD which, at least for the Times, is unexpected and reprehensible.

Finally, I want to briefly comment on this story about a former researcher who is suing his former post-doctoral adviser at Brown University for having published an article that they apparently wrote together without giving authorship credit to the former post-doc.  There are complicated details to the case, and I would not like to offer an opinion about who is right or wrong in the overall dispute.  But the controversy raises one issue that I do want to comment on: the situation between joint authors.  So much of the scholarship produced today is written by multiple authors — I recently saw an article with 102 listed authors — that it is increasingly important to understand a couple of points.

First, to qualify as a joint author in the copyright sense, each author must contribute protectable expression to the preparation of the overall work.  That means that some, at least, of those 102 authors are not co-owners of the copyright because their contributions did not involve the creation of protectable expression.  We don’t worry too much about this distinction in the academic world, but it could be an issue if a dispute over publication arises, as it has in the Brown University case described above.

Second, it is important to understand that each co-owner of the copyright, each joint author, is entitled to exercise the rights in the copyright bundle independently.  That means that one author can conceivably authorize publication without the permission of the other authors, as seems to have happened in this situation.  On the copyright issue, at least, it seems clear that the post-doc cannot object to publication simply because the article he worked on with others was published by one of them without his knowledge or consent.  The author who published would be obligated to account to all co-authors for any profits from the publication, but it would not be infringement to simply publish the article without consent from the others.

This precise situation, also involving a dispute about how authors were listed, was considered by the Seventh Circuit Court of Appeals in 1987 in a case called Weinstein v. the University of Illinois, and the panel of judges, two of whom were themselves well-known academics, came to the same conclusion — no infringement when one co-owner of the copyright publishes without permission from the others.  So whatever the other details are in the Brown case, a copyright claim against the former adviser from one of his co-authors is unlikely to be successful.  This is why it is so important (especially in cases like this involving commercial sponsorship) for all of the authors to agree together about the use and publication of any intellectual property that arises from the project.  That sort of agreement, worked out calmly and in advance of any conflict, is still the best way to avoid being involved in any copyright follies.

Copyright Issues and Legislation, Fair Use, Libraries

Steps toward a new GSU ruling

It looks more and more like we will get a new ruling from the trial court in the Georgia State case about what is or is not fair use for digital course readings.  The case, of course, was reversed and remanded to the trial court after the publishers appealed the initial decision to the 11th Circuit, with instructions to produce a new opinion consistent with the Court of Appeals ruling.    The publisher plaintiffs then asked the trial court to reopen the record in the case and apply the putative new fair use analysis to a different, more recent, set of readings employed by the GSU faculty.  The University opposed this motion, arguing that what would amount to a whole new trial was not necessary.

Last week, District Court Judge Orinda Evans dismissed the motion to reopen the record and issued an order about briefing the court on what a new analysis of fair use for the original excerpts considered in the trial should look like.  Judge Evans wrote that “It does not make sense at this juncture to spend months, probably longer, on what considerations might govern if Plaintiffs prove they are entitled to injunctive relief by virtue of the claimed 2009 infringements.”  The motion is dismissed without prejudice, meaning that the plaintiffs can renew it at a more appropriate time, although I must admit that I do not see what that would mean if the case is to go forward on the original set of readings.

It appears that once again the publishers have failed in an effort to broaden the scope of the case beyond the item-by-item fair use analysis that has already been done and to possibly reintroduce some of the broad principles that they really want, which have so far been rejected at every stage.  Now Judge Evans has explicitly told them, in her scheduling order, that what is required is “consideration and reevaluation of each of the individual claims” in order to redetermine “in each instance… whether defendants’ use was a fair use under 17 U.S.C.  section 107.”  Her schedule for the briefs is tight, with an end of the briefing now scheduled just two and a half months from now.  Presumably we would still have a long wait while Judge Evans applies revised reasoning about fair use to each of the individual excerpts, but it looks a bit more like that is what is going to happen.

Copyright Issues and Legislation, Libraries

A new home for copyright?

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The idea that the Copyright Office should move out of the Library of Congress was first raised some years ago by Bruce Lehman, who was, at the time, the Director of the Patent and Trademark Office.  The idea seemed to be that the Copyright Office should join the PTO as an agency within the Commerce Department.  That idea did not seem to be very well-received by many, and I had not heard of the discussion for a while.  But apparently the possibility of moving the CO is still kicking around, and last month current Registrar of Copyright Marie Pallante sent a letter about the topic to Rep. John Conyers, the Ranking Member of the House Committee on the Judiciary.  Her letter was requested after a hearing about the functions and resources of the CO held back in February.

Pallante’s letter makes interesting reading, especially if one is interested in the inside politics of Executive Branch appointments, separation of powers, and the like.  The bottom line, however, is that Registrar Pallante thinks that the Copyright Office should be separated from the Library of Congress, should not move into the Commerce Department, and should instead become an independent agency with its leader directly appointed by the President and confirmed by the Senate.  There has been some discussion about this letter and the ramifications of the debate among my colleagues, and I want to consider two issues that I think are of interest to a wider audience, while admitting that I am shamefully cribbing ideas from those colleagues.

The first issue is why the Copyright Office should leave the Library of Congress in the first place.  Registrar Pallante offers several reasons in her letter.  One is the claim that the Library of Congress is in a Constitutionally awkward position, since it is apparently an Executive branch agency (the Librarian is appointed by the President), but its functions, including advising Congress about copyright law, are at least partially legislative.  While I see the issue, it is not clear to me why it is more pressing for the CO than it is for other offices within the Library, including, for example, the Congressional Research Service.  Nor do I fully understand why making the CO an independent agency, with its head still appointed by the President, would solve this dilemma.  There is certainly an issue of prestige here, but I am not convinced that it is enough to justify a new Federal agency.

The other reason Pallante offers for moving out of the Library of Congress are the “operational challenges,” including staffing and pay.  All bureaucracies are difficult, of course, and rumor has it the LoC is more difficult than most these days.  But, again, it is not obvious that a new agency would necessarily be better.  Everything would depend on the personnel and the budget.  More troubling, however, are the footnotes in Pallante’s letter that refer to the “conflict of interest” between the CO and the Library, which apparently was mentioned by some witnesses during those February hearings.

Is there a conflict of interest between a library and the office that administers our national copyright policy?  If there is, what does that tell us?  To my mind, it suggests that our copyright policy has gotten out-of-line.  We may be developing an approach that sees copyright as a trade regulation that protects specific industries, not as a policy decision about how best to ensure the continuous creation of new works of knowledge and culture.

This concern was clearly raised during the hearings, where Rep. Zoe Lofgren challenged the assumption that the Copyright Office was no longer a good fit with the Library of Congress by suggesting that over the years, the librarians have been better at understanding copyright than some staff at the CO.  To her credit, in her letter Pallante does not endorse the idea of moving the CO to Commerce, where the symbolism of copyright as a sort of trade regulation would be even stronger.  But I would argue that our predecessors knew what they were doing when they centralized copyright services inside the Library of Congress.  Libraries epitomize the social benefits that copyright is supposed to support, and the “optics” of moving the Office, at least, would inevitably undermine that long-standing commitment to the public good.

In fact, if the CO was located in the Commerce Department, as my colleague Brandon Butler points out, it would have to consider all aspects of commerce related to copyright, including those industries that depend on fair use and other copyright exceptions.  The wrong-headed narrative about the competition between the content industry and the technology sector, with the former held up as copyright dependents and the latter as modern-day pirates, would be harder to sustain.  The unfortunate possibility exists that the CO’s desire for independence represents a desire to become even less balanced in its approach than it has been in the past, focusing entirely on its perceived role as enforcer of rules that protect Hollywood from the threatening innovations of Silicon Valley.  An office in the Commerce Department would be less able to take sides.

In terms of rationale and purpose, the Library of Congress is a good fit for the Copyright Office, even if the CO does not, under its current leadership, recognize this.  If a new home is really necessary, Butler makes the wonderful suggestion that the Department of Education should be considered.  The DoE, more than Commerce and maybe even more than the Library of Congress, could refocus copyright policy on the reason we have these laws in the first place — to promote the progress of knowledge and science.  If we lose track of that purpose, it becomes an open question whether we need the law or the CO at all.

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

Listening to Lessig

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Like many other attendees, I was pleased when I saw that the closing keynote address for this year’s Association of College and Research Libraries Conference was to be given by Professor Larry Lessig of Harvard.  But, to be honest, my excitement was mingled with a certain cynicism.  I have heard Lessig speak before, and I am afraid I worried that I would be listening to essentially the same lecture again.

My suspicion was not wholly unwarranted.  In part I think it is the fault of Lessig’s instantly recognizable lecture style.  It is energetic and entertaining, but because its rhythms and conventions are so idiosyncratic, I think it may flatten the message a little bit.

In any case, I sat down in the ballroom of the Oregon Convention Center on Saturday with somewhat mixed expectations.  But what I did not expect was for Lessig to begin his talk by acknowledging that all his public lectures were really the same.  Had he read my mind?  No, his point was a little different.  Over the years, he told us, he has had three major themes – political corruption, net neutrality, and copyright/open access.  But, he told his audience of attentive librarians, those three themes are fundamentally just one theme.  Each is about equality.  Not three themes, but only one — equality.  Equality of access to the political process is the heart of his current campaign against the corruption of our political system by the endless pursuit of money.  Equality of access to the means of communication and culture is key to the fight for net neutrality.  And equality of access to knowledge is what animates the open access movement.

So it turns out that my worry, prior to the talk, was both unfair and, in a sense, correct.  All Lessig’s lectures are very much the same, because the underlying value he is asking us to focus on is the same.

Thinking about this unity-behind-diversity in the messages about political corruption, net neutrality and open access set me thinking about the way my colleagues and I frame our advocacy for the last of those items, open access to scholarship.  Our messages, I think, tend to focus on incremental change, on the benefits to individual scholars, and on not rocking the academic boat too much.  Lessig reminded me that there are good reasons to rock a little bit harder.  Publishing in toll access journals and neglecting open access options or additional means of dissemination is not just short-sighted.  It is dumb, and it is harmful.  We need to say that occasionally.

Publishing exclusively through closed access channels is dumb because it ignores huge opportunities available that can, quite simply, make the world a better place.  And such publishing fails to take full advantage of the greatest communications revolution since the printing press.  Indeed, online toll-access deliberately breaks network technology in order to protect its outmoded and exclusionary business model.  Doing this is simply propping up the buggy whip manufactures because we are afraid of how fast the automobile might travel.  The academy is not usually this dumb, but in this case we are wasting vast amounts of money to support an obsolete technology.  I know that the promotion and tenure process is often cited as the reason for clinging to the old model, but this is simply using one outdated and inefficient system as an excuse for adhering to another such system.  Traditional modes of evaluation are breaking down as fast as traditional publishing and for the same reasons.  Hiding our heads in the sand is no solution.

More to the point, however – more to Lessig’s point – is the fact that this traditional system we are so reluctant to wean ourselves from actually hurts people.  It fosters ignorance and inequality.  It makes education more difficult for many, retards economic progress, and slows development worldwide.  As academics and librarians who by inclination and by professional responsibility should be committed to the most universal education possible, it is shameful that we cling to a system where only the rich can read our scholarship, only the privileged gain access to the raw materials of self-enlightenment.  How can a researcher studying the causes and treatments of malaria, for example, be satisfied to publish in a way that ensures that many who treat that disease around the globe will never be able to see her research?  How can an anthropologist accept a mode of publishing that limits access for the very populations he studies, so they will never be able to know about or benefit from his observations?  Why would a literary scholar writing about post-colonialist literature publish in a way that fosters the same inequalities as earlier forms of colonialism did?

In this wonderful column from Insider Higher Ed., the ever-insightful Barbara Fister writes about what we really mean when we talk about serving a community, and what we might mean by it.  She comments on the “members-only” approach to knowledge sharing that has become an accepted practice, and challenges us to rethink it.  Like Lessig, Fister is calling us to consider our core values of equality and the democratization of knowledge.  She also reminds us of how dumb – her word is wasteful – the current system is.

Perhaps the most vivid example of how subscription-based publishing fosters, and even demands, inequality is found in the ongoing lawsuit brought against a course pack publisher in India by three academic publishers.  Two of the “usual suspects” are here – Oxford University Press and Cambridge University Press (joined, in the Delhi University suit, by Taylor and Francis) – and this lawsuit is even more shameful than the one brought against Georgia State.  The problem, of course, is that the books published by these modern-day colonialists are too expensive for use in India.  I once was told by a professor of IP law in India that a single textbook on trademark law cost over a month’s salary for his students.  Photocopying, whether it is authorized by Indian law or not (and that is the point at issue) is a matter of educational survival, but these publishers want to stop it.  Their rule – no one should ever learn anything without paying us – is a recipe for continued ignorance and inequality.  It is disgraceful.

I use the word colonialists in the paragraph above quite deliberately.  What we are seeing here is the exploitation of a monopoly that is imposed on a culture with the demand that people pay the developed world monopoly holders in order to make progress as a society.  We have seen this too many times before.

The thing I like best in the article linked above – the whole thing is well worth a careful read — is the brief story of how a student group in India began handing out leaflets about the lawsuit at a book fair where CUP representatives were hawking their wares.  They wanted to let people know that buying books from Oxford and Cambridge is supporting a worldwide campaign of intimidation that is aimed at reducing access to knowledge and culture.  Publishing with these presses is a form of colonial occupation that extorts from whole populations a high price to obtain the means of cultural and intellectual growth.  The reaction, of course, was predictable; the publisher summoned the police to protect themselves and others from these unpleasant truths.  But the technique has merit; perhaps we can also find ways to shame these publishers when they attend our academic or professional conference, when they send salespeople to our campuses, and when they recruit our colleagues to write and review for them.  A commitment to equality demands no less.