Category Archives: Copyright Issues and Legislation

Looking for the devil in the details

November 7, 2008 Kevin Smith, J.D. 3 Comments

The more I read the Google Books settlement agreement, and the commentary it has spawned, the more I become convinced of two things. First, this beast of a document will keep many lawyers in business and give many librarians headaches. Second, it is the things we do not know that will be most troublesome. The following is an unsystematic list of issues that I have been thinking about regarding the agreement, with no particular order and few definite conclusions.

Advertising — Perhaps it should be obvious, but Google Books is about to take on a very different look, as it becomes populated with advertising. Up til now, Google has not sold advertising for these pages, probably to avoid undermining its fair use argument. At this point, the only commercial links one gets when doing a search in Google Books are those to sources from which one can buy the books. The settlement agreement explicitly authorizes advertisements on the Preview Use pages and anticipates ads on the results pages as well. The agreement provides for the standard 70/30 split for advertising revenues (the Registry that represents publishers and authors gets the larger percentage), so it is now in the interests of the rightsholders to permit and encourage advertising. This is not shocking, but it does further detract from the “social benefit” justification that Google has used for years and that has made it so appealing to librarians. Book searches on depression or Alzheimer’s being used to sell the latest fad pharmaceuticals to treat those conditions might cause libraries to rethink the place of even free access to the Google product in their overall mission.

Orphan works — Does this agreement really spell the end of legislative attempts to reduce the risk of digitizing books that are still in copyright protection but for which no rightsholder can be found? Larry Lessig certainly implied that it does in his initial post reacting to the deal. Consider that there will be much less incentive to adopt such a proposal if many of the works involved are available for viewing via institutional subscriptions to Google Books or even for individual purchase. By making allowance for unclaimed funds coming into the Registry that the settlement agreement will create, Google and the publishers clearly expect to make money off of orphan works. As I suggested earlier, pay-per-use may well replace legislative attempts to refine the balance between rights protection and socially valuable uses, and libraries that want to make obscure works available to a broader public will be the losers.

It is worth noting that the agreement itself makes some allowance for the adoption of orphan works legislation, providing that both Google and the Fully Participating Libraries can take advantage of such legislation if it ever becomes law. What we do not know is whether or not the Book Rights Registry would become available to users who wanted to use orphan works as part of their diligent search for rightsholders; it would be a tremendous resource but, at least initially, it is structured as a closed and private database. See Georgia Harper’s interesting post on this issue here. We also don’t know if the agreement will have such a pervasive effect that Congress will not bother to take up orphan works in the first place; they certainly have not been on fire to do so up to now.

Defining the public domain — I have complained before that Google has used a very narrow definition of the public domain, especially in regard to government publications. On this score, the agreement seems to move things in a positive direction, at least in regard to the contents of the Google Books product itself. Google has argued that it had to be careful about using government works because of the possibility that they would contain “inserts” (to use the term now adopted in the settlement agreement) for which there could be a continuing copyright interest. This agreement would seem to remedy that concern by allowing for uses of such works unless the owner of the rights in the insert objects. Even then, Google can appeal the objection using the dispute resolution procedure specified. The restrictions on other public domain works that are still commercially available seem sensible to me. If a PD work contains an insert to which a copyright interest still adheres (an introduction, for example), then all earlier editions of the PD work that contain that insert are treated as commercially available (and therefore “non-display”). Editions without such inserts will remain in the public portion of the Google database. On the other hand, out-of-print editions of a work that is still in copyright and is commercially available in another edition will all be treated as commercially available.

Future publications — One of the trickiest aspects of understanding this document is the definition of “books” that it uses. Careful reading indicates that that term encompasses only works that are in copyright protection and registered with the Copyright Office as of the settlement date. That means that this agreement deals only with works already published; it does not seem to tell us anything about how or if Google will deal with books (in the non-technical sense) published in the future. The obvious conclusion is that publishers will be able to opt-in to all or some of the “display use” (snippets, preview, sales of institutional subscriptions or individual titles). I wonder if such new publications will be subject to non-display uses (text minig, i.e.) when and if Google scans those works, or if those too will be opt-in only. I also wonder what will happen when works published after the settlement go out of print. Will publishers have to opt them out of display uses at that point, or will the original opt-in still control? Finally, how often will the database to which institutions can subscribe be updated, and how will the effect of new content have on the price for that product be determined?

Commentary that is worth reading about the settlement agreement includes:

Karen Coyle’s “pinball” comments here.

Open Content Alliance’s objections here.

This Washington Post article on Google’s New Monopoly (requires free membership).

PC World’s article on how business considerations have trumped ideals in this negotiation.

Deep impact?

October 31, 2008 Kevin Smith, J.D. 2 Comments

That a settlement between publishers, authors and Google over the latter’s Book Search project was in the works was not exactly a well-kept secret over the past few weeks. Nevertheless, the announcement of the complex agreement has set many people buzzing, even before its provisions were fully digested. There is a collection of comments to be found here, on Open Access News, and Siva Vaidhyanathan gives his initial view here. As I read over the agreement, I am not sure its impact will be as deep, nor as overwhelmingly positive, as many of the commentators have suggested. There is a nicely nuanced reaction to the agreement here, from Jack Balkin of Yale Law School.

First, it is important to realize that this is a proposed agreement to settle a pending law suit. It must be approved by the court and may change in its details during that process. The plaintiff classes in this class action suit are very large, so the process of notification will be complex and it is likely that class members will object and want to discuss changes in the agreement. This is not the final word.

I also want to note up front that this settlement would not resolve the fair use argument that is at the heart of the lawsuit; the parties have been very clear that they still have a significant disagreement over whether Google’s activities to date infringe copyright or are authorized as fair use. A decision on that issue would have provided libraries with more guidance as we proceed (or not!) with digitization projects, but both sides in the case, I suspect, wanted to avoid getting to that point. The likely result, unfortunately, is that the next time someone considers pushing the envelope on fair use, there will be even more pressure to just pay the costs of licensing up front and not go down the fair use path at all.

Under this agreement, it seems likely that the availability of in-copyright but out-of-print books would improve in the Google Book Search. Google would be able to show both the “snippet view” for such works that is already available and a “preview” view that would display up to 20% of a work, although no more than 5 adjacent pages and not the last pages of a work of fiction. For out-of-print works this would be the default availability, with the rightsholders able to opt out. For in-print books, the rightsholders would have to opt-in. So while it seems likely that, overall, there will be increased access in the Google Book Search product, some in-print works will also likely disappear, even from the snippet view, as rightsholders elect not to opt in.

The participating libraries are in an interesting “in-between” position here. They have no voice in the settlement agreement, and it appears that, for some of them, the options for using the digital scans of books that they receive from Google will be reduced. That depends on how their original agreements were worded, and that wording seems to have varied among the partner libraries. Under this proposed settlement, the libraries that provide books for scanning can receive digital files for any title they hold in their collections, even if they did not provide the copy of that title that was actually scanned. But there are strict limits on how those files can be used. They cannot be made available for reading even on campus, much less linked into a catalog. They cannot be used for interlibrary loan, e-reserves or in a course management system. They are essentially preservation copies, although there is a provision to allow research based on “text-mining.”

All libraries, of course, will be able to purchase institutional subscriptions which will give them access to the full text of many in-copyright works which publishers decide either not to opt out of this use (for out-of-print books) or which are opted in (for in-print works). We do not know much about the pricing structure yet, but, given the rather small amount of money changing hands at settlement, I think that the publishers are counting on making significant profit here. It will be especially interesting to see if some of the partner libraries choose to subscribe to this more robust version of the database to get the level of access that is denied to them with the scanned files of their own works.

Consumers will also be able to purchase digital copies of individual titles; the pricing structure could allow prices anywhere from $2 to $30 per title, but that structure will undoubtedly undergo further revision.

Finally, there are provisions for free access to this “fuller-text” version of the Google product, via dedicated terminals. One such terminal would be offered to every public library, although it is not clear if public libraries that still lack broadband access would benefit much from this offer. A free terminal would also be available to “colleges and universities,” with one such terminal for each 10,000 FTE (one per 4,000 for community colleges). I am sure that the exact definition of what is a college or university for this purpose will be a matter of some debate. It is also interesting that no allowance is made for free access at the K-12 level.

For all three of these approaches to “access uses,” there are pretty strict limits imposed on cutting and pasting, and on printing.

Overall, I believe this agreement would increase access to a lot of books that are currently hard to find or even to know about. But there are significant strings attached to that access; for most people, it will probably come with a hefty price tag, which was not part of Google’s original, Utopian vision for its project. The strict limits on access, both to the libraries’ own digital copies of books and to the public “access use” versions, seem to be what led Harvard to decide to continue to withhold in-copyright works from the project and remain at its limited level of participation. Most troubling to me, however, is that this agreement would seem to move us one more big step in the direction of per-pay-use, where every library resource would be licensed and metered.

What does PRO-IP really do?

October 22, 2008 Kevin Smith, J.D. 2 Comments

President Bush signed the “Prioritizing Resources and Organization for Intellectual Property Act of 2008” — PRO-IP — on October 13, making it Public Law 110-403. Since then a lot of news reports and blog posts have denounced the law, and I have noticed that a number of them claim negative aspects of the bill based on previous proposed versions. One article last week linked to a report about the bill that was a year old and announced an aspect (about which I also wrote way back than) that actually was removed from the bill as it was finally passed and signed. So I spent my weekend reading the actual text of the final, adopted version to see what was and was not still there. The link above, from Washington Watch, includes both the text of the bill as signed and some analysis of it; here is a news report that also reflects the content of the bill correctly..

First, what is not in PRO-IP? The two most objectionable features, from my perspective, were both removed before final passage. First, earlier versions included provisions that would have dramatically increased the statutory damages available in copyright infringement cases. The obvious purpose of this provision was to make more money for the RIAA when it sues file-sharers, since the structure of the change would have increased the potential penalty for infringing a music CD by 10 or 12 times. That provision was not included in the final version. Also dropped was a provision that would have allowed the Justice Department to pursue civil (as opposed to criminal) copyright lawsuits, a provision one commentator called making federal employees essentially pro bono lawyers for the content industries. Because the Justice Department itself objected to the provision, it was omitted as well.

So what is left? Plenty of taxpayer money being spent to help out a few large content industries is the short answer. The Congressional Budget Office estimates that PRO-IP will cost over 420 million over four years.

PRO-IP has five sections. The first, dealing with civil enforcement, lowers the procedural barriers for bringing infringement lawsuits, and it allows for seizure and impounding of allegedly infringing products while the lawsuit is pending. It also raises the statutory damages available for counterfeiting of trademarks. The second section “enhances” criminal enforcement measures in a parallel way. Primarily, it allows for the seizure and ultimate forfeit of infringing goods and any equipment used to infringe. The potential effect here is that computer equipment used for widespread and wilfull infringement could be seized in exactly the same way that cars and boats used for drug crimes are now taken by law enforcement.

With sections III and IV, PRO-IP really starts spending your money; over 55 million dollars a year is explicitly appropriated to increase federal and local enforcement efforts. At the top, a new executive branch official is created — the Intellectual Property Enforcement Coordinator, or IP Czar, as the position has been called — whose job is not to seek balance in our copyright law, as is arguably the role of the Registrar of Copyright, for example, but directly to expand the role of the federal government in protecting these private rights. The section also creates a new enforcement advisory committee, replacing an earlier group with one whose membership is significantly expanded. This group is specifically charged with gathering information about the alleged cost of IP infringement that is used by the industry in its lobbying efforts. Now taxpayers will pay for that research. Indeed, this federal official is essentially a Cabinet-level lobbyist for Big Content.

PRO-IP also requires the addition of over a dozen FBI agents to full-time IP enforcement; it is not clear if these are new agents or ones who will be reassigned from less high priority duties. Twenty-five million dollars are also allocated for grants to local law enforcement to pursue those dangerous file-sharers, and 20 million to hire more investigators for the Department of Justice. The bill closes with a “sense of Congress” section that heaps great praise on the content industries and repeats much of the propaganda that those industries distribute to support their claim that federal intervention to protect their out-dated business models is necessary. It also informs the Attorney General of the United States that IP enforcement should be “among his highest priorities.”

As is probably clear, I think PRO-IP is still bad legislation. The provisions that most threatened to have a further chilling effect on higher education have been removed, but the bill still, in my opinion, is a huge gift of money to the major content industries. The result will be that taxpayers will shoulder even more of the burden of fighting their desperate battle to prop up a business model that both consumers and the technologies they use have passed by. Instead of looking for new ways to enhance and market their products, these industries continue to resort to legal enforcement that is bound to fail (see this report from the Electoronic Frontier Foundation on the fruitless campaign of the past five years), and they have now convinced Congress to invest much more taxpayer money in that effort.

Can Copyright kill the Internet?

October 15, 2008 Kevin Smith, J.D. 3 Comments

The question seems extreme, and it is certainly rhetorical. But the potential for copyright challenges to significantly limit the range of activities and services available on the Internet is very real, and severe limits on the full potential for digital communications could be imposed.

One of the great strengths of the Internet — its completely international character — is also one of its greatest weaknesses. Since laws change across national boundaries, but the Internet goes merrily along, online services can potentially be made subject to the most restrictive provisions found anywhere in the world.

In the US, for example, there is solid case law holding that thumbnail versions of images used in image search engines are fair use. The cases of Kelly v. Arriba Soft and Perfect 10 v. Google are solid examples of this principle. But fair use is a fairly unique feature of US law; it does not exist in most other countries. So when Google’s image searching was challenged in a German court on copyright infringement grounds, they did not have fair use to rely on for their defense, and they lost the case earlier this week. The German court held that this valuable tool infringes copyright if the thumbnail images are used without authorization, even if the use is to provide an index that helps users actually find the original. There are reports about the decision here and here.

How will Google react to this decision? First, they will almost certainly appeal. It is possible, ultimately, that they would have to employ some kind of technological measures that would prevent users in Germany from seeing the image search results with thumbnails, a result that would ultimately harm business in Germany more than Google. It is very unlikely that Google would have to shut down its image search feature, but multiple decisions might force a reexamination of how Google provides services worldwide. A similar case, involving the sale of Nazi memorabilia in France, led Yahoo to exactly that sort of system-wide change.

The general lesson here is that the current copyright regime throughout the world is in a fundamental conflict with the openness and creativity fostered by the Internet. Most companies today want to do business on the Internet, but few are willing to embrace the fundamentally open nature of the medium. The resulting conflict really does threaten to constrict the role the Internet can play in our lives.

The conflict is the subject of an interesting article from The Wall Street Journal by Professor Larry Lessig of Stanford, a short teaser for his forthcoming book “Remix.” Lessig suggests that the copyright “war” over per-to-peer filesharing risks significant “collateral damage.” That damage would come in the chilling effect that frivolous lawsuits and poorly-researched DMCA “takedown notices” could have on new forms of creativity and art — the products of the remix culture which, Lessig argues, offers a return to an era when amateur artists could thrive. This culture offers “extraordinary” potential for economic growth, according to Lessig, if it is not choked off by aggressive enforcement directed at a very different activity. To prevent that, he offers five changes that could make our copyright law less of a threat to the innovation and creativeity the Internet encourages.

Will copyright kill the Internet? No. But copyright will need to be revised to account for the new opportunities that the Internet creates, lest we find ourselves unable to exploit those opportunities.

PS — This story about the McCain/Palin campaign fighting back against DMCA takedown notices that are being used to force YouTube to remove campaign videos that contain short clips from news programming, is another example (if we needed on) of the potential for abuse of the copyright system to chill important speech on the Internet. Good to see the McCain camp fight back, but I wonder if it is really YouTube’s job to evaluate the merits of the takedown claims. A court recently told content owners that they must consider fair use BEFORE sending a takedown notice; I wonder if the better course isn’t to pursue some kind of sanctions against those who send clearly unwarrented notices.

Chipping away

October 10, 2008 Kevin Smith, J.D.

Digital rights management, or DRM, is a delicate subject in higher education. Also called technological protection measure, these systems to control access and prevent copying are sometimes used by academic units to protect our own resources or to fulfill obligations we have undertaken to obtain content for our communities. Sometimes such use of DRM in higher ed. is actually mandated by law, especially in distance education settings.

But DRM systems also inhibit lots of legitimate academic uses, and they are protected by law much more strictly than copyrights are by themselves. A section added to the copyright law by the Digital Millennium Copyright Act makes it illegal to circumvent technological protection measures or to “manufacture, import, offer to the public, provide or otherwise traffic in” any technology that is primarily designed to circumvent such measures. The reason I say this is stronger protection than copyrights get, and the reason these measures can be such a problem for teaching and research, is that our courts have held that one cannot circumvent DRM even for uses that would be permissible under the copyright act, such as fair uses, or performances permitted in a face-to-face teaching setting.

It is frequently the case, for example, that professors want to show a class a set of film clips that have been compiled together to avoid wasting time, or wish to convert a portion of a DVD to a digital file to be streamed through a course management system, as is permitted by the Teach Act amendment. These uses are almost certainly legal, but the anti-circumvention rules make it likely that the act of getting the files ready for such uses is not.

To avoid the harshest results of the anti-circumvention rules, Congress instructed the Library of Congress to make a set of exceptions every three years using the so-called “rule making” procedures for federal agencies. There have been three rounds of such rule-making so far, in 2000, 2003 and 2006. Only in the last round was there any significant exception for higher education and it was very narrow, allowing only “film and media studies professors” to circumvent DRM in order to create compilations of film clips for use in a live classroom.

Now the Library of Congress has announced the next round of rule-making which will culminate in new exceptions in 2009. Higher ed. has another chance to chip away at the concrete-like strictures that hamper teaching, research and innovation. We need to be sure that the exception for film clips is continued, and try hard to see it expanded; many other professors, for example, who teach subjects other than film could still benefit from such an exception without posing any significant risk to rights holders. Ideally, an exception that allows circumvention in higher education institutions whenever the underlying use was authorized could be crafted.

There is a nice article describing the rule making process and its frustrations here, from Ars Technica.

One of the things we have learned in the previous processes is the importance of compelling stories. The narrow exception discussed above was crafted largely in response to the limitations on his teaching described by one film professor who testified during the rule-making. The exception seems crafted to solve his particular dilemma. As another round of exceptions is crafted over the coming year, it will be important for the higher ed. community to offer the Library of Congress convincing narratives of the other ways in which DRM inhibits our work and to lobby hard for broader exceptions that will address the full range of problems created by the anti-circumvention rules.

Stuck in the middle

October 6, 2008 Kevin Smith, J.D.

It was with both a sense of resignation and a deep awareness of the irony of the situation that I read this short article in the Chronicle of Higher Education (and the comments that follow it) titled “Free our Libraries, Cry University Presidents.” Such a brief report cannot convey (I hope!) all that actually went on during this ‘summit” of university presidents, but the article certainly implies that one aspect of the event was assigning blame to university libraries for our inability to make everything free for all on the Internet. The presidents in attendance, we are told, “urged libraries to halt what they described as an assault on the public’s right to knowledge, done in the name of copyright.”

It is, of course, both ironic and ill-informed to blame libraries for an assault on the public’s right to know. Our professional organizations, after all, have an official and highly visible commitment to that right that is, as far as I know, unmatched by any other such group. To assign that blame because of libraries’ regard for copyright deepens the injustice of the position, if that really is the stance that was taken. Copyright, of course, is a legal fact. It is also, at its core, a system designed to support “the public’s right to knowledge.” Librarians often believe, as these university presidents apparently do, that that system has become badly out of balance and is no longer serving the purpose for which it was created. But neither group may simply disregard it because they find it inconvenient.

What I find most interesting about the position, as it is presented in the article, is how accurately it reflects the uncomfortable space librarians and others who are concerned about copyright currently occupy in higher education. Many faculty members and administrators press us to tell them that what they want to do with copyrighted material is legal. Often they hold the simplistic view that anything done in the name of education is acceptable. Sometimes the sense of entitlement is more visceral than this, reflecting what I occasionally call (based on my background as a theological librarian) the “The Lord has need of it” syndrome. Librarians are often the ones who have to say “no” in many of this instances; we are the ones who usually have at least some training in copyright issues, and we are also the ones who sign the licenses for access to so many campus resources. Undoubtedly there are librarians who are overly cautious, as well as a few who adopt the same insouciant attitude they find in others on their campuses. But by and large, it is librarians who try to instill respect for copyright, at least as a good idea if not as a successful implementation of that idea, and who explain its limitations to our colleagues. And yet, from the other side, librarians are sometimes vilified by the major copyright holders as willful scofflaws; Pat Schroeder’s remark, in her role as President and CEO of the Association of American Publishers, that all librarians are pirates is justly infamous. All this makes it difficult for librarians, committed as we are to access for all and to continuous learning and creativity, to know where to stand. The old saying that if you are making both sides angry at you, you are probably doing something right, may be true, but it is not very comforting for a profession founded on public service.

To be fair to the meeting that was held last week, however, it is important to recognize that the “cry” of “free our libraries” comes from a paper prepared for the event by Richard Johnson, founding Executive Director of SPARC and a consultant for a major organization of academic librarians. His point in this short paper is not the overly simplistic one implied by the Chronicle article, but the more complex and nuanced argument that library partnerships with commercial interests need to be examined carefully and negotiated to promoted a balanced set of interests that does not shortchange the public, especially in terms of access to public domain works. Johnson does not call for librarians simply to free themselves from the “bonds” of copyright at all; instead, he suggests quite rightly that:

we need new funding strategies, coordinated library action, and
forward-looking principles to guide us. It’s time to sort out the right roles and
responsibilities for companies, libraries, governments, and private funders and to get
about the work of building an Internet public library that puts the public first.

If this was the real focus of discussion at the Boston Libraries Consortium summit, even poor, abused librarians, caught, as they are, in the “no man’s land” of the “copyfight,” surely can agree.

Copyright creep?

October 1, 2008 Kevin Smith, J.D. 3 Comments

When I first became aware of the lawsuit filed by publishing giant Thomson Reuters against George Mason University to stop the release of the open source citation management program Zotero (hat tip to my colleague Paolo Mangiafico for directing me to this story), I wasn’t sure how it was relevant to issues of copyright and scholarly communications. After all, this is essentially a licensing dispute; Thomson alleges that, in order to develop the newest version of Zotero, software developers at GMU “reverse-engineered” the proprietary .ens file format used by Thomson product Endnote in violation of a licensing agreement. Endnote, of course, is a very popular tool in academia, and it is alleged that GMU is marketing its new version of Zotero with the specific boast that it now allows users to convert EndNote files into its own open source and freely-sharable file format

I cannot comment on the merits of the breach of contract claim, and I have no argument with the right of Thomson Reuters to use a licensing agreement to protect its intellectual property. Nevertheless, the idea of protecting these files, which simply organize data about books, journal articles and web sites into a form that can then be mapped into different citation styles, raises interesting questions about the scope of copyright law and where new and troubling developments might take it.

At least since the Supreme Court decided Feist v. Rural Telephone in 1991, we have known that facts and data are not themselves protected by copyright, and that collections of facts must meet a minimum standard of originality (greater than that found in the phone books that were at issue) in order to be protectable. I do not know if the file format EndNote has created to store citation data is such an original arrangement of data and, apparently, neither do they. Rather than rely on copyright law, they wrote a license agreement to try to prevent what they allege took place at GMU. But two questions still bother me.

First, should universities agree to licenses that prevent reverse engineering? In today’s high-tech environment, reverse engineering is a fundamental way in which innovation proceeds. Our copyright law, in fact, recognizes the importance of such activities, providing specific exceptions to certain prohibitions in the law for cases of reverse engineering that have potential social benefits, such as encryption research or making materials available to handicapped persons. So one could legitimately ask if a court should consider the benefits of the research being done when deciding whether and how strictly to enforce a contractual provision against reverse engineering. In general, open source software is a gift that many universities like George Mason give to the academic community as a whole, and the value of that gift is increased if it is possible for scholars who have been using a costly commercial product to move their research resources from the latter into the former. That increased value (an “externality” in economic jargon) could be weighed against Thomson’s loss (which they allege is around $10 million per year) in reaching a reasonable decision about contract enforcement.

Second, will we see a movement to cover databases under some kind of database protection law, potentially separate from copyright, if corporate database verdors are unsatisfied with even the low bar necessary for copyright protection and with the need to use licensing provisions where that protection is unavailable? It is this kind of extension of intellectual property protection to subject matter that has traditionally not been protected that I mean by the phrase “copyright creep.” Such sui generis protection (not rooted in copyright principles) has been adopted in the European Union, and it is common these days to hear complaints about it from scholars in EU countries. At a minimum, such protection would raise costs for obtaining access to commercial databases and, as is shown by the Zotero lawsuit, could be used to stifle innovation and cooperation. The last attempts to introduce legislation for database protection in the US were several years ago — there is a nice summary of those efforts and the issues they raised here — but it is a topic that keeps coming back and about which higher education needs to be vigilent. In many ways our interests would cut both ways in any database protection debate, so it is a case where careful thought and balance would be needed.

Rough Week, legislatively

September 19, 2008 Kevin Smith, J.D. 2 Comments

The other troubling developments last week involved legislative proposals to amend the copyright law. It is surprising that Congress should be so interested in copyright right now, what with an election coming up. Nevertheless, as Public Knowledge phrased it on their website, there was a “perfect storm” of [bad] copyright activity last week.

First was the approval, on Sept. 11, in the Senate Judiciary Committee of a bill to (again) increase enforcement of intellectual property rights. This is mostly a big gift to the major content companies, especially in its provisions to allow the government to prosecute civil suits for IP infringement, with the damages going to the content owners. The taxpayer gets to foot the bill, in other words, for Hollywood and the recording industry, something that is rather a recurring theme in these bills. The Enforcement of Intellectual Property Act of 2008 would also increase the number of cases in which civil forfeiture is possible — that means that property implicated in infringement could be seized, even if it belonged to innocent parties and even if it contained private data — and it would create more bureaucracy to oversee enforcement of what is, after all, supposed to be a civil action in which the plaintiffs traditionally have been responsible to enforce their own rights. This bill, which has incorporated much of the “PRO IP” bill about which I have written before, reverses that tradition and gets the government to do much of the work for private industry.

Also moving forward are the Orphan Works proposals. While it is still not clear if any definitive action will be taken, it does seem that the direction of amendments to the bill are more and more tending to render it useless for its purported purpose. As it becomes more freighted with burdensome requirements and limitations, it is increasingly likely that users of orphan works will continue to rely on fair use, just as they must do now. Thus passage of the bill will not likely accomplish its stated purpose of freeing up the huge amount of cultural material for which there is no rights holder to be found and no market to be harmed. For the sake of calming some very unrealistic fears, those who want to make culture and scholarship more widely available and usable will be left to make the fair use gamble that currently chills so much teaching and learning.

Finally, the winner for bad idea of the week was the poorly-named “Fair Copyright in Research Works Act,” which could be more aptly called the “Taxpayer Pays Twice Act.” This bill is intend to reverse the NIH Public Access policy, about which I have written a good deal. Its intent, then, is to make sure that taxpayer funded research stays behind toll barriers so the those who paid to have the research done must pay again to read the results of their investment. Accountability is reduced, and nobody wins except the special interests who insist on uncompensated transfers of copyright before they will publish these works, then sometimes charge tens of thousands of dollars for subscriptions. There is a story about the bill here on Ars Technica, and a summery of comments is available on the Open Access News site here.

Perhaps the best news one can find about the “Fair Copyright” bill is that it is quite unlikely to be adopted this term, as “Library Journal” reports here. The impact of this bill on scientific and medical research would certainly be regressive, denying research and taxpayers the chance to take advantage of the new opportunities offered by the digital environment. But it is also bad policy because it would enact into law an unnecessary and potentially damaging limitation on how the government can spend its money. The bill is structured to make it illegal for the government to place, as a condition of government funding, any provision that would require the transfer or licensing of a copyrighted work. The potential unintended consequences here are considerable, as are the opportunities to force the government to spend tax money over and over again to gain the use of material paid for by taxpayers in the first place. Conditions on the grant of money is a major way Congress enacts policy, and no one seems to have examined how many contracts and grants might be invalidated, nor what the impact could be, if this legislation were adopted. Indeed, some of the impetus behind the bill seems to be a “turf war” over what policies can or should be pursued via appropriations; sponsor John Conyers explicitly referred to the need to defend what he called “sacred turf.” This bill is an object lesson in the harm that can be done when legislators listen only to the demands of a narrow group of special interests and to their own parochial prerogatives instead of the broader need to serve the public interest.

As with the judicial decision reported earlier, these bills, with the exception of the last one, will not do much direct harm to academia. They would leave us where we are, while doing most of their damage to the public interest in general. But the “Fair Copyright in Research Works Act” is both terrible policy and potentially devistating to the progress of scholarly research. The positive impact of the NIH Public Access policy is beginning to be felt; choking it off at this point would be the height of foolishness. We seem to be able to relax for the remainder of this Congressional term, if the speculation is correct, but we should remain ready to fight tooth and nail if this poorly-conceived bill ever develops any real legs.

Rough Week, judicially

September 16, 2008 Kevin Smith, J.D. 1 Comment

This past week has seen at least three developments in copyright law and legislation that all bode badly for higher education and user’s rights. Each however, need to be seen in context, since none may actually pose the imminent threat that initially appears. This post will address the case decided during the week, the next will deal with some legislative developments.

There was a decision last week at the district court level in the case of the Harry Potter Lexicon that found that, even though the Lexicon is a transformative use that creates a new work with a different purpose than the novels on which it is based, it is not a fair use. The court enjoined the publication of the Lexicon and awarded the minimum possible damages (less than $7000) to J.K. Rowling and Paramount Pictures in a decision that is really very carefully reasoned and that hews closely to the facts in the particular matter.

The director of the Fair Use Project at Stanford discusses the decision here.

The court rejected a fair use defense based on this (abbreviated) analysis of the fair use factors:

The purpose of the use is mostly transformative, creating a reference guide to the the series of novels, but this factor does not wholly favor defendants because of nearly complete, verbatim copying of two short reference guides that Rowling had already published (on fantastic creatures and quidditch) and because more of the novels are quoted verbatim that is reasonable necessary for the transformative purpose.
The original works are highly creative and deserving of the fullest protection permitted by copyright law.
The amount used, and its substantiality, is greater than is necessary for the transformative purpose. The judge explicitly declined, however, to find bad faith or to endorse Rowling’s reference to “plundering,” writing instead that the Lexicon author seemed to be carried away by his enthusiasm for the books.
While noting that Rowling is not allowed to corner the market for reference guides to her novels, the court held that there was substantial impairment of her market opportunities in two senses. First, the Lexicon would directly compete for sales with the two previously-published guides mentioned above (but not with the novels). Also, Rowling is entitled to license derivative works such as a musical production based on Harry Potter, and the reproduction of songs and poems in the Lexicon could harm this opportunity.

In many ways the decision reads sympathetically toward the Lexicon author and is critical of Rowling and her overreaching claims to absolute control over any writing about the Harry Potter series. I was especially pleased to see the judge single out the language used by plaitiffs of piracy and theft for criticism. In the end this decision is not as harmful as it could be. The potential in this case was for a broad decision that would severly limit the scope offered in many recent decisions for transformative uses within the fair use analysis. Instead this is a thoughtful decision that sticks very closely to the specific facts and does not do to much damage to the kinds of transformative uses that are important in higher education. It is a reminder that scholars should be careful not to appropriate more of an original work than is reasonably necessary to accomplish a legitimate purpose — criticism, commentary or organization for reference. It is certainly a limitation on the freedom to copy even for such purposes, but it has not created the mine field for such works that could have resulted from a less considered opinion.

Copyright in laws

September 10, 2008 Kevin Smith, J.D. 1 Comment

While it could be said that trademark and patent are close cousins to copyright law, there is no such thing as copyright’s in-laws. The real question is, should there be copyright in laws?

Most people know at least vaguely that government works in the US are not subject to copyright protection. Of course, nothing is ever that simple. First, section 105 of the copyright law says that there is no copyright protection in works of the United States government, meaning only works created wholly by government employees in the course of their employment are unprotected; works created by others on behalf of the govenrnment may still have copyright (as I noted a few days ago here). Second, section 105 says there is no copyright in works of the United States government, meaning that the law is silent about works created by state and local governments. And that, apparently, is the rub.

Some time ago, the state of Oregon tried to assert that it held copyright in its state code of laws. After a brief skirmish with some advocates of open government, Oregon backed down from this claim, saying that, at least, it would not enforce any claim it had.

Now comes news that the same person who took on Oregon has been told to stop posting the legal code of the State of California — there are reports from Slashdot here, Techdirt here (with lots of generally unenlighting comments), and the Santa Rosa Press-Democrat here.

The argument against states and local governments asserting copyright in their laws and regulations is pretty straightforward — people should be able to access the rules of communal living that they are expected to follow. California, on the other hand, has an interesting reason for making its copyright claim; the $800,000 it raises by selling print copies and digital access to its state code benefits the California taxpayer. And no matter what our vague intuitions might tell us, the federal copyright law does not prevent such a claim.

In fact, copyright claims even in national laws are not unusual; most countries with roots in the British empire, other than the US, have some version of “Crown Copyright.” But in the United States, at least, it is clear that the Copyright Office does not look kindly on these claims for protection in state and local laws, even if they are not excluded by statute. The Compendium of Copyright Office Practices informs examiners in the Office that:

Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.

So the Copyright Office would decline to register such works as a matter of public policy, which would complicate any attempt by Oregon or California to sue to enforce the copyright claim. It also speaks volumes about the claim that copyright claims in public laws are intended to serve the interests of the public themselves; the Copyright Office apparently doesn’t buy it.

The bottom line here is that anyone relying on the absence of copyright in government works has to be careful. Contractors who work for the government but are not federal employees may hold copyright even in US works, and the possibility of claims by state and local governments is very real indeed.

Discussions about the changing world of scholarly communications and copyright