Category Archives: Copyright Issues and Legislation

Copyright Issues and Legislation, Technologies

Shaking the money tree

In a talk given at Cornell University last week, Steve Worona of EDUCAUSE said about business models for distributing intellectual property that “every few years the entertainment industry has to be dragged kicking and screaming to the money tree and have it shaken for them.” His point that the first reaction of entertainment company executives is to “tamp down” new technologies in order to protect out-dated business models is certainly borne out by recent history. Back in the 1980’s, of course, the industry fought hard against the growing use of home video recorders, both in the Supreme Court and in Congress, even as a new business model that would eventually make billions for the studios was being developed in spite of their opposition. No less an advocate for the old ways than Jack Valenti eventually realized that the movie industry lost that battle because they were perceived as anti-consumer. Nevertheless, the recording industry continues to make the same mistaken, even going so far as to sue they very consumers on whom it relies.

Are there alternatives? Worona’s talk is very persuasive in its discussion of why old models (based on counting copies) do not work for new technologies (which replicate bits) and how it is possible to develop new models that really can “compete with free.” I have written about such models before, and also noted in a post last week this article by Tim Lee about an alternative path for copyright law that could support such new ways of profiting from intellectual property without crippling technological innovation. Some of those alternatives deserve further discussion. (and a lively discussion is continuing on the Cato Unbound site).

First, it is worth noting the survey, reported by Ars Technica, that suggests that young people are willing to pay for music if it is offered on terms that seem reasonable to them. Although I can imagine the skepticism this will generate within the content industries, it at least suggests that innovations, rather than lawsuits, are worth a try; both may be risky, but the rewards will be greater from the latter.

Lee’s article briefly catalogs a variety of business models, in several different content industries, that rely on new ways to make a profit. One that caught my eye was the Web service called Imeem, which combines a legal music downloading service with social networking opportunities. Revenue is generated through advertising, and the music is licensed using revenue-sharing agreements with the four major record labels. Users can create and share playlists and download music from those shared lists for free. As Lee says, “It is only a slight exaggeration to say the Imeem deal amounted to a de facto legalization of online file sharing, provided that the labels get a cut of any associated revenues.” Is this the future of the music business? I don’t know for sure, but I do know that I, as a music lover who has never obtained a music file from any online source other than iTunes, will now be looking on Imeem first; legal, ad-supported free music  certainly works for me.

In his talk at Cornell, Worona suggested that, when a business learns that it will have to compete with free – with someone offering the same or substitutable product at no cost – the appropriate response is not to call the FBI, as the recording industry has done, but to call its own marketing departments. That is what Imeem has done, and they are giving the money tree yet another shake; let’s hope the music industry is paying attention this time.

Copyright Issues and Legislation, Fair Use, Technologies

Bad strategy and poor reporting

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It is hardly surprising that the recent effort by the Associated Press to stop bloggers from quoting news articles, even when they link to the source on AP’s own web site, has generated lots of comment in the blogging world. AP recently sent takedown notices, using the procedures outlined in the Digital Millennium Copyright Act, to try to have blog posts that quoted as little as 35 words of an AP story removed from the Internet. The has been enough coverage that it seems unnecessary to rehearse all the commentary; there is a story at Ars Technica here, and one from the Electronic Frontier Foundation here. Basically most of the coverage makes the same two, fairly obvious, points; this is a terrible strategy from a public relations point of view (as even AP now admits) and it represents an interpretation of fair use that would entirely eviscerate that vital exception if accepted by the courts.

What does deserve extended comment however, is one of the news stories that repeats a couple of common misconceptions that need to be dispelled. This report on the E-Commerce Times site offers the opportunity to clarify and correct two important errors about the DMCA and fair use.

First, the E-Commerce story quotes a source who refers repeatedly, and defiantly, to “this ruling.” This is probably just careless language, but it also re-enforces the mistaken notion that receipt of a DMCA takedown notice means that infringement definitely has taken place. In fact, a rights-holder sends a takedown notice, using very specific provisions that the DMCA added to chapter 5 of the copyright act (17 U.S.C. 512), because they merely believe that their copyright is being infringed. There is no required quantum of evidence beyond a “good faith belief that use of the material… is not authorized,” nor must a rights holder consider possible defenses to the claimed infringement. These provisions were never intended to substitute for a judicial determination on the question of infringement; they are intended, instead, to help the ISP avoid liability for any possible infringement by users of the service. The ISP does have to remove the material or block the user upon receipt of a take down notice, but they also must notify the user of the action and restore the material if the user sends a counter notice stating their own good faith belief that the removal was wrongful. Thus the notice and takedown process helps establish if there really is a conflict and gives the ISP a protected role when there is, but it leaves the resolution of the issue of infringement up to a court. The mere fact that the AP sent these initial notices is in no way any sort of “ruling” or definitive decision.

The second error in the E-Commerce story is its reference to “the fair use provisions of the Digital Millennium Copyright Act,” which, we are told, the AP hopes to clarify. There is, of course, no fair use provision in the DMCA; fair use is much older than that piece of relatively recent legislation. Indeed, fair use is a doctrine initially created by judges in the early 19th century (in the US) to mitigate the harmful effects of the copyright monopoly. The DMCA, which took effect only in 2000, does not add anything to the fair use analysis, nor does it, in theory, narrow its scope; where fair use is mentioned in the DMCA it is only to emphasis that Congress did not intend the provisions of the DMCA, which attempt to deal with some of the new issues arising in a digital environment, to alter the applicability of fair use.

This last point is important, because it reminds us that we are not dealing with any new provision about what uses are acceptable in the digital realm. Instead, the same old provision about fair use (17 U.S.C. 107), which emphasizes the privileged status of news reporting and has traditionally been held to protect short quotations, would be applied in deciding whether or not these passages from AP news stories were used by bloggers in a manner authorized by law. The assertions by AP that these uses are not fair use seem difficult to credit, but the point is that a court would have to decide the issue (if the AP decided to push that far; it is a much more costly and serious step than merely sending a takedown notice), and the standard used to make that decision would be the familiar four factors of fair use, just as they were outlined by Justice Story in 1841.

Copyright Issues and Legislation, Technologies

Everything old is new again?

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Some intellectual property issues are hardy perennials; they bloom anew with great regularity. One such issue is the doctrine of first sale, which in other countries and other contexts is sometimes called the doctrine of exhaustion. However it is named, it refers to the nearly universal practice of holding that the “first sale” of a particular embodiment of intellectual property – a copy of a book or a CD – “exhausts” the exclusive right of the copyright holder to control further distribution of that embodiment. It is the right of first sale that allows used book stores, video rentals and lending libraries to flourish.

First sale has never been popular with the content industry; both licensing arrangements and DRM can be seen as modern attempts to exercise control over the downstream use and distribution of IP beyond what is allowed by copyright law. Back at the beginning of the 20th century, in fact, the Supreme Court had to deal with a case involving what I like to call the first “end user licensing agreement.” In Bobbs Merrill Co. v. Straus (1908), the Court found that an attempt by a publisher to mandate the retail price at which stores could sell the book “The Castaway” by Hallie Rives failed because of the doctrine we now call first sale. The publisher of this obscure novel inserted a “requirement” underneath the copyright notice that the retail price of the book must not be less than one dollar, and sued the store owned by Isidor Straus – Macy’s – when it sold copies for less.

In the past few weeks, two cases have been decided, one in the copyright arena and one dealing with patents, that again remind us of the continuing importance of first sale/exhaustion in a balanced system of IP protection.

In Universal Music v. Augusto the facts sounded strangely similar to Bobbs Merrill; a music company tried to distribute free promotional CDs of its music and prevent the resale of those CDs by simply placing a notice on the face of the disc. In granting summary judgment for the E-Bay vendor who resold some of this CDs, Judge Otero of the Central District of California noted that this kind of restraint on subsequent transfer had been rejected over 100 years ago. Also implicated rejected in this decision is the attempt to create a license transaction merely by a one-sided statement that that was what was occurring. The court rightly found that the CDs were transferred to the recipients (by gift, in this case) and were therefore subject to the exhaustion of the distribution right.

The patent case, Quanta Computer v. LG Electronics, also involved an attempt to control subsequent uses of a product embodying a patented process after the initial sale of that product. LG sued to collect a licensing fee from Quanta because Quanta used chips containing a process patented by LG, even though those chips were manufactured by an intermediary company (Intel) that had itself licensed the process from LG. In essence, LG wanted a cut on every downstream product that contained the already-authorized chips, but the Supreme Court said no: “The authorized sale of an article that substantially embodies a patent exhausts the patent holder’s rights and prevents the patent holder from invoking patent law to control postsale use of the article.”

As sturdy as these recurring issues are, however, we should not conclude that copyright law is ticking along without difficult, adequately resolving conflicts in the 21st century with its arsenal of 20th century doctrines. The current Issue of “Cato Unbound,” on “the future of copyright,” does a superb job of alerting us, if we didn’t already see it, that copyright law is struggling to keep up in the digital age. The lead essay by Rasmus Fleischer, begins with the fascinating point that in the 21st century we have moved to trying to regulate tools with our copyright law rather than content. In a digital age, he points out, many of the distinctions our law relies upon, like the difference between copying and distribution, no longer make any sense. As Fleischer says, “the distinction is ultimately artificial, since the same data transfer takes place in each.” This point undermines the comforting thought, expressed above, that first sale, for example, is still doing its job in copyright law, since the move to a digital environment makes application of an exception to the distribution right, but not the right of reproduction, highly problematic.

Fleischer’s article goes on to paint a fairly gloomy picture about a “copyright utopia” being advocated by the content industries, especially big entertainment companies, that could seriously undermine both technological innovation and civil liberties. He ends with the “urgent question regard[ing] what price we will have to pay for upholding the phantasm of universal copyright.”

In a reply essay, “Two Paths for Copyright Law,” Timothy B Lee suggests that things may not be as bleak as Fleischer suggests. He reminds us that it is only a very recent development that anyone has even considered question the legality of private, non-commercial copying for home use, and he opines that the effort to now assert control over such copying has already proved a failure. The alternative — the second path for copyright — is, as has been suggested before in this space, the development on new business models, which will largely be funded by advertising, to meet the non-commercial demand for content. The role of copyright law, in this scenario, is to protect content creators from unfair and unauthorized commercial exploitation of the works by competitors. It is commercial competition that copyright is intended to regulate, he suggests, not use by consumers. And he catalogs a wide variety of business models already being adopted by the major content industries, even as the pursue lawsuits against customers and strict laws from Congress, that seem to recognize the inevitable move towards a market solution, rather than a legal one, to the challenges posed by new technologies.

Some copyright doctrine remains unchanged over a hundred years, yet we have to adapt to rapid innovation even as we preserve what works in our law. The essays by Fleischer and Lee paint two different pictures of the future of copyright; the attraction of Lee’s vision, for me, is that it looks at what copyright has traditionally been designed to accomplish, the control of commercial competition, and offers hope that if we stay focused on that role for the law, the market will adjust to the technological innovations for users that currently frighten the content industries so.

Copyright Issues and Legislation, Technologies

A”twitter” about contracts

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Although I had heard of Twitter for a while now, I did not really know what it was until prompted to learn more by two recent articles. One is this piece in the Chronicle of Higher Education about potential library uses for the “microblogging” or social messaging service. It recalls the discussions I heard recently about the different level of involvement folks from my institution felt at an academic conference when the audience for various talks was using Twitter during the programs to share comments, examples and the like. Rather than being distracting, as I suspected it would be, the reports were that this added a welcome dimension to the conference experience.

What caught my professional attention, however, was this report of an ongoing controversy between Twitter and some of its customers about the terms of service to which every user agrees when they sign up for the service. The specific argument concerns the degree to which Twitter was obligated to pursue complaints of harassment directed against another user. On that issue, Twitter seems to be caught between a rock and a hard place — if they do not take steps to stop harassment they seem to condone a clear violation of a condition of use that they imposed, but if they do take action they may put in jeopardy the “safe harbor” protection from liability based on user postings that they gain under section 230 of the Communications Decency Act.

The broader issue, in my opinion, is the role of these terms of use statements in governing the relationship between users and the providers of Internet services. For one thing, it seems that such contractual agreements can be changed at the will of the provider. As the article cited above tells it, rather than address the harassment issue, Twitter indicated that it would wash its hands of the issues and simply “update” its terms of service. More amazing yet is the statement that Twitter borrowed its TOS from Flickr, apparently without much attention to what they contained. A Twitter executive is quoted as saying that, as a start-up, Twitter just “threw something up early on and didn’t give it a lot of thought.”

Who knew that these Internet companies had such a cavalier attitude to the non-negotiable contracts they are imposing on Internet users? Actually, the terms Twitter uses, and says they borrowed from Flickr, are much less lengthy and burdensome than those now used by Flickr itself; since acquisition by Yahoo! the terms of use that a new Flickr user agrees to (standard Yahoo! terms) prints out to seven type-filled pages, where the Twitter TOS amounts to only two pages. These click-through terms are being enforced by courts as binding contracts, even when the Internet service provider doesn’t “give them a lot of thought.” In the case about the plagiarism detection site Turnitin, high-school student users were held to the terms of service they clicked through even though they made valiant efforts to modify those terms.

As more and more communication on campus happens over these kinds of proprietary sites and networks, and as commercial Internet tools become more common for student and faculty worker, these contracts will increasingly control what we can do. Often they give the owner of the site or tools an exploitable interest in the work created or stored there. Yet very few people even realize that they are binding themselves to detailed and enforceable terms whenever they click “I agree.” It is therefore becoming ever more important that courts find ways to introduce some nuance into their enforcement of these click – through agreements, rather than simply enforcing them blindly as the Virginia court did in Turnitin. At least one proposal for such a nuanced approached, that considers when a contract, especially a non-negotiable online contract, should be preempted by federal copyright law and the policy that law is aimed at enacting, is found in this complex but compelling article on “Copyright Preemption of Contracts” by Christina Bohannan. We can but hope that courts will develop a more sophisticated approach to these contracts, whether they use Bohannan’s proposed approach or some other, as they become more aware that such contracts may undermine both the policy behind copyright law and the traditional rules of contract formation, and they may do so, if left unchecked, based on very little thought or reflection by the party that is imposing the terms.

Copyright Issues and Legislation, Digital Rights Management

The timeless folly of DRM

There is a good deal of value in reading older works, even in a field that changes as rapidly as copyright. It is a fascinating exercise, for example, to read attempts in the late 1960’s and early 1970’s to influence the direction of the “new” copyright law being considered (which was passed in 1976). L. Ray Patterson’s “Copyright in Historical Perspective” (Vanderbilt University Press, 1968), for example, or now-Justice Stephen Breyer’s 1970 Harvard Law Review article on “The Uneasy Case for Copyright,” offer an all-too-contemporary sounding warning about the doleful consequences of writing a copyright law that does not pay enough attention to users’ rights or assumes that the concerns of industry as expressed at a particular moment should be enshrined in a statute meant to function for decades.

James Lardner’s 1987 book about the development of video recording devices and the subsequent copyright consequences, “Fast Forward: Hollywood, the Japanese and the Onslaught of the VCR” (Norton) is another example of an older work from which there is still a lot to learn (my principle embarrassment in discussing the book lies in revealing yet again how often my own reading follows suggestions made by Bill Patry). As I read the book this weekend, I was struck especially by a small remark that, to me, reflected on a mistake the content industry cannot seem to stop making.

During the district court trial over the issue of whether Sony’s Betamax device created liability for its maker due to copyright infringement, the trial judge, Warren Ferguson of the Central District of California, refused to allow the attorneys for Universal and Disney to put on a rebuttal witness who would argue that the court could reasonable force Sony to adopt a technological measure that would permit the non-infringing purposes Sony (with the help of Mr. Rogers, among others) had demonstrated for the VCR while preventing unauthorized recordings of broadcast TV. A “jamming device” was suggested that could, the witness would have asserted, be incorporated into all VCRs at a (relatively) minimal cost and would block recording of programs unless the broadcast chose to permit those recordings. Sounds a lot like the “broadcast flag” argument and the recent flap over Microsoft Vista preventing the download of some NBC TV programs, doesn’t it?

We are still wedded to the idea of technological solutions to the problem of unauthorized uses, and we have now gone so far overboard as to give legal protection to such technological systems, even when the have the intent and /or the effect of prevent perfectly legal uses or of reducing access to works no longer protected by copyright. And we continue to pursue a DRM “arms race” in which each new system is seen as a challenge in the user community and few last more than a couple of weeks before keys and hacks are discovered. The wisdom of Judge Ferguson’s words in refusing to entertain this burdensome and unwise “solution” in Sony are, as yet, unheeded: “As sure as you or I are sitting in this courtroom today, some bright young entrepreneur, unconnected with Sony, is going to come up with a device to unjam the jam. And then we have a device to jam the unjamming of the jam, and we all end up like jelly.” Now that this headlong plunge into chaos has been enshrined in section 1201 of the Copyright Act, Judge Ferguson (whose original decision in the case was ultimately affirmed by the Supreme Court) seems more and more like a prophet to whom we should have listened.

Copyright Issues and Legislation, Fair Use

Imagining Fair Use

A recent decision by a federal judge in New York is another example of the heavy preference for “transformative” uses in the fair use analysis. The case involves the use of a short clip from John Lennon’s famous song “Imagine” in the anti-evolution movie by Ben Stein called “Expelled.” The movie purports to be a protest against the lack of “intellectual diversity” in American schools; specifically that they do not represent the position known as “intelligent design” in science classes. The clip from “Imagine” is used to try, in a very heavy-handed way, to link science education to anti-religious bias, such as is allegedly found in Lennon’s song.

The judge has rejected a request by the Yoko Ono for a preliminary injunction that would prevent the distribution of the film. Ono claimed that the use of this short clip without her permission was copyright infringement. Given the vastly different political perspectives involved, it is unlike permission would have been forthcoming. But the judge ruled that it was also unlikely that permission was necessary, since there was a strong claim that the use was fair use. Since one of the criteria for getting a preliminary injunction is “likelihood of success on the merits,” Ono’s request was denied because the judge felt it was unlikely she would succeed on the underlaying claim that using the clip was infringement.

Transformative uses, which have recently been the subject of many, if not most, successful assertions of fair use, are those which create a non-competitive product or subject a copyrighted work to criticism, comment or parody. A parody, of course, does not compete in the same market for the original (no one buys a 2Live Crew parody song as a substitute for buying the original by Roy Orbison). Nor does the film Expelled compete in any way with the market for the recordings of John Lennon. And in a traditional transformative use case, the owner of the original may not have much desire to license the use if asked, since the proposed new use often subjects the original to criticism or ridicule (as in this case). Transformative uses are often those uses where there is a strong possibility that the copyright owner in the original work would use his or her rights to suppress the new speech; fair use is the remedy that prevents this censorship by copyright.

For me, this role of fair use in preserving copyright as the “engine of free expression” is especially clear in this case (for an explanation and discussion of this quote from Harper & Row v. Nation Enterprises, see this report from The Free Expression Project). Free speech is always hardest to accept, and most important to remember, when one disagrees violently with what is being said. In this case, I personally have little use for the claims being made in the movie “Expelled;” they strike me as inflammatory and hard to defend with real logic or facts. Nevertheless, the right of the movie producers to make those claims is inviolate, in my opinion, and it is important that they have the tools to make their case in the best way the can. Fair use is an important tool to support creative expression, whether I agree with the content of that expression or not. The arguments being made in the movie may fail, but the judge got this decision exactly right when he ruled that the producers could use the tools they did (including a small part of another’s copyrighted expression) to make those arguments.

Copyright Issues and Legislation, Open Access and Institutional Repositories

Reducing the number of orphan works in the world

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The two orphan works bills currently under consideration in Congress share many common features, the most obvious one being that both address the problem of orphan works by drastically reducing the penalties for using such a work without permission. They also both would create a very burdensome process for determining that a work is sufficiently likely to be an orphan to justify the reduced penalties in the presumably rare case that the user was mistaken.

These bills have gotten mixed reactions from the library and copyright communities in higher education. The American Library Association has indicated some level of support for the Senate version of the bill, while Public Knowledge and the Electronic Frontier Foundation have both strongly endorsed the Congressional efforts. Several individual voices for which the academic library community has great respect, however, have indicated opposition. Kenneth Crews suggests his reservations, while also criticizing the campaign against the bills, in this blog post, while Lawrence Lessig’s opposition was expressed forcefully in this New York Times Op-Ed.

My opinion is that the bills might do some good in a few situations, but they will not accomplish much. Part of the problem is that they are “remedy-based” solutions; they simply remove some of the risk attendant on using orphan works or, to look at it from the other perspective, the protection copyright owners have against infringement (Lessig puts the situation this way, but I am afraid that this formulation doesn’t recognize that for most of the works we are talking about, there really is no rights owner whose protection would be decreased). But in any case, these bills would do nothing to curb the ever growing number of orphan works. So I want to examine some of the alternatives to a remedy-based solution to orphan works and consider changes in the law that might actually reduce the number of orphaned works that now burden our copyright system.

Lessig suggests one such strategy in his NYT piece when he argues that a more efficient and fair solution to orphan works would be to reestablish a renewal process and give new materials only a short initial term. Thus authors and artists who did not plan to commercialize their works after that short initial period (during which the vast majority of works exhaust their value) would allow those works to pass into the public domain. Those who did plan to continue to protect and exploit their works would pursue a very simple, inexpensive renewal. This would clear reduce the orphan works problem going forward, although it would not help with the many orphans already in our collections. The biggest objection to this plan, however, is that it reduces “formalities” into the enjoyment of copyright in contradiction to obligations the US agreed to when it adhered to the Berne Convention and the TRIPs agreement. Those international treatises do not permit formalities, which is a big reason we went to automatic protection in the first place. It is true that the US has been quite inconsistent in complying with the various obligations we took on with Berne and TRIPs, so this objection is probably not insurmountable. But it would be a major argument to be used against such a change, and it would probably prevent Congress from enacting a renewal requirement.

There are a number of other ways to imagine changes in the law that would reduce the problem of orphan works, either by focusing on the commercialization of particular works, as Lessig’s suggestion does, or by taking advantage of efficiencies gained by returning ownership of unexploited works to the original authors or creators. An upcoming post or two will examine some of those other possibilities.

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

Getting off the copyright merry-go-round

Congress has been talking a lot recently about the farm bill and war spending. But amidst all that rhetoric and wrangling, some copyright work has also been done in the past two weeks. For one thing, the House passed the so-called PRO-IP bill last week, fortunately without its most troubling provision. One of the major provisions of that bill as proposed was an amendment to the copyright law that would have allowed much larger damage awards for infringement. As I wrote some while ago, this was a huge grab at more money for the recording industry especially, but that provision was dropped in the House-approved version. Now what PRO-IP would largely do is further bloat the federal bureaucracy (in a way opposed by the Justice Department) for IP enforcement.

Perhaps balancing out this sop to special interests, Congress has also been working on the Orphan Works bills, discussed earlier here. The Senate version, called the Shawn Bentley Orphan Works Act, was unanimously reported out of the Judiciary Committee on May 15, although it is clear that negotiation about some of its provisions is still going on. The House version, which includes the objectionable “dark archives” provision, is still being marked up in the House Judiciary Committee; whether that provision will remain is something I just don’t know right now. But I do know that several issues remain in controversy in both houses, specifically the language addressing state sovereign immunity and the role of Copyright Office certified statements of “best practices” in defining the scope of a “qualifying search” that would afford a user the shelter of the orphan works reduction in liability.

Amidst all this give and take about copyright, the question ought to be asked whether any of these incremental changes will really make much difference. From the perspective of higher education, at least, there is a sense of tinkering around the edges of a severely broken system. PRO IP simply creates more bureaucracy and further trumpets the “sky is falling” approach to copyright of the entertainment industry. Orphan works is an area in which real reform is sorely needed, but one can legitimately ask if the bills being considered would actually work; the bills may be so laden with expensive and unnecessary hoops to be cleared that they will not make truly beneficial uses of orphan works any more possible or likely. Another example of this futility may be found in the recently concluded work of the Section 108 Study Group: although the Study Group’s report raises some interesting and key issues, it was only able to reach agreement to actually recommend minor changes that will not make much real difference. Instead of waiting for reforms that never come in any helpful way, it may be more fruitful in higher education to ask ourselves how we might simply get off the copyright merry-go-round.

The answer, of course, is in open access to scholarship, and there may be some recent developments that point a direction for encouraging open access as an alternative to the current system of copyright protection for commercial monopolies. An article in this month’s College & Research Libraries News by David Lewis, Dean of the Library at IUPUI, forcefully asserts that it is time for libraries to stop putting more and more money into the bloated and dysfunctional journal publishing system and to move funds to support open access infrastructure and venues. His article proposes specific steps that libraries can take to move off the endless cycle of higher journal prices that leads to less money for monographs and overall reduced access. He is suggesting an important step to get us off the copyright merry-go-round.

A major obstacle to open access, however, has always been resistance from faculty, for whom the system usually seems to work just fine. Tenure and promotion have been built around the core of commercial publishing, and it is very hard to communicate the reasons for moving away from that core. Until now. With the lawsuit filed against Georgia State by three major publishers, a real opportunity has arisen to show faculty members that giving copyright away to publishers primarily interested in share holder profit, not dissemination of knowledge, is no longer in their own best interests. At its root, this lawsuit challenges what faculty members, who provide the content for scholarly publications, want to be able to do with their own work and the work of their colleagues – communicate it to students. If the copyright system determines that they cannot do that without paying yet more money on top of the exorbitant prices charged to buy the works back initially, perhaps there will be a general recognition that they should not freely give that content away in the first place. A return to first principles would remind faculty that these works belong to them unless and until they choose to give them away, and that they are free to negotiate the terms of any transfer of copyright. Ironically, this lawsuit’s frontal attack on a core value in higher education may prove to be the best weapon yet to move scholarship off the increasingly dangerous and unstable copyright merry-go-round.

Copyright Issues and Legislation

Happy Birthday and the best interests of orphan (works)

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I have been traveling a lot recently, and I use time on airplanes to catch up on articles I want to read. As always, Bill Patry’s blog is a great source for citations to interesting topics, and I was particularly taken by an article he recommended recently – “Copyright and the World’s Most Popular Song” by Robert Brauneis of the George Washington University Law School. Brauneis’ article is a great airplane read; a tour de force of historical research and reasoning that dissects both the history of the song “Happy Birthday to You” and the persistent claim that the work is still protected by copyright. His detailed discussion of the tangled history of authorship and its relation to the various copyright acts and ad hoc term extensions that occurred since the original composition of the tune (at least) in the 1890s beautifully illustrates how difficult establishing the status of older works is now that copyright term has grown so long, well past the memory of any person alive at the work’s creation.

This problem of establishing the rights in a very old work makes Brauneis’ article especially interesting at a time when Congress is considering ways to address the issue of orphan works – older works that are still protected for which no rights holder can be found. Brauneis mentions the orphan works proposals only in passing, but his investigations, and the lessons he learns from those inquiries, help clarify why orphan works are so problematic and suggest new directions for consideration of those problems.

First, as should already be clear, there is the problem that, as copyright term gets ever longer, it becomes harder and harder to identify authorship, trace rights, and even verify if the correct rights holder registered the work (this is very significant for works protected under the 1909 copyright act, but it could also be important if an infringement action were brought regarding a more modern orphan). For the song “Happy Birthday to You,” Brauneis is dealing with a relatively small and identifiable group of authors, yet the problems of identifying who wrote what and who should have registered which works are very knotty indeed. For genuinely orphaned works, these problems only multiply. As Brauneis points out, the rather scanty record-keeping efforts of the Copyright Office contribute to the difficulties in this area. He holds out hope for more comprehensive record retention in the digital age, although that is happening very slowly, and it is worth noting that the orphan works proposals also contain some requirements of additional recordkeeping to make diligent searching for rights holders a little bit easier.

Brauneis also notes the disincentives that are present to discourage potential users from challenging a dubious claim to copyright. In the case of “Happy Birthday to You,” there is substantial evidence that the song is not protected by copyright any longer, in spite of the myth, ubiquitous in copyright discussions, that it is. Nevertheless, the song generates $2 million in royalties for the company that claims to hold the rights. Since no single user pays a great deal for the rights, the users have little way to identify each other or act in concert, and blanket licenses make it difficult to distinguish exactly what one is paying for in any case, the song continues to generate a great deal of income and the public is denied a small but popular piece of its cultural heritage. This is not quite the same problem, of course, as that which prevents use of orphan works, but it is another example of structural difficulties in copyright that stifle creativity and learning.

Finally, Brauneis makes a fascinating point about the lack of any mechanism in copyright for obtaining the kind of prescriptive rights that are available for persistent (mis-)users of real property. When a trespasser uses land in a way that is continuous, open and “notorious” for a number of years, they may gain a prescriptive easement to use the land or even take title through adverse possession. When a copyright owner fails to enforce his or her rights, however, even if it fears that those rights would not stand up in court, no such legally cognizable rights are gained by the user. While one user may “infringe” without consequence (as many appear to do with “Happy Birthday to You”), the putative rights holder may continue to collect royalties from all those others who do not know about the dubious claim. All of the solutions proposed for the orphan works problems are merely attempts to mitigate the consequences for a potentially infringing use by reducing the available damages; Brauneis’ article raises the fascinating suggestion that that problem and others might be better addressed by allowing users to gain a legally recognized right in a work when and if they use that work in an obvious and long-term way and the copyright owner elects, for whatever reason, to “sit on her rights.” Such a solution would certainly expanded the cultural commons, although it might be useful in only a relatively few situations where the risk of litigation from a rights holder was very slim ( thus a “reasonably diligent search” would still be necessary). Most promising, however, is Brauneis’ comment that this kind of prescriptive rights approach to the problem of missing or inactive rights holders could be imposed judicially, rather than having to depend for a solution on a distracted and easily influenced Congress.

Copyright Issues and Legislation, Open Access and Institutional Repositories

How bad are the proposed Orphan Works bills?

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Two proposals on Orphan Works were introduced in Congress last week, one in the House of Representatives and a slightly different one in the Senate. Both bills are more complex than the version introduced and then largely ignored by the 109th Congress, but the core principle is the same – a remission of most of the available remedies for infringement if a user makes use of an orphan work (a work whose copyright owner can not be found) after a reasonable diligent search. The bills are designed to greatly reduce the risk for libraries and many others who want to make digitized versions of older, but still copyright protected, works available to the public. In some sense it is an attempt to balance the outlandishly long term of copyright with the reality that a huge percentage of works are not economically exploited at all after their first few years of existence.

The big question is whether either bill actually succeeds, with success defined as a reasonable likelihood that a thousand flowers will bloom from the soil of orphaned works that otherwise would not have been seen for many more years. Opinion in the blogosphere is mixed; Public Knowledge, which was deeply involved in helping to draft the bills, is guardedly hopeful. Georgia Harper, on the other hand, writes this deeply pessimistic blog post that declares the bills “DOA. Too late even for last rites.” The issue, as I will discuss it, revolves around how burdensome it would be for libraries to actually rely on the procedure outlined in the bills to support digitization projects. Three issues seem to need discussion.

First, there is the requirement in the House bill that users of orphan works file a “Notice of Use” with the Copyright Office that would be maintained in a “Notice of Use Archive.” The notice would have to contain a description of the search for an owner that was made by the user, as well as lots of identifying information and a certification of good faith. This requirement is only in the House version, and it renders the Senate version much more appealing. A database of uses raises the specter of copyright owners fishing for defendants in a stocked pool, for one thing. But, realistically, this seems pretty unlikely. First, access to the database would be restricted by unspecified regulation of the Copyright Office. More importantly, if a diligent search really has been made (and libraries almost certainly would be doing so) most copyright owners who would be on the lookout for infringement would have been found. More problematic is the burden of fulfilling this requirement, a burden that would be hard to measure until (and if) a version of the bill with this requirement is in place and being used.

I certainly would rather this not be included in a final bill. But I also know that librarians are investing a lot of time, labor and money in digital collections as things stand now. I doubt that even a burdensome reporting requirement will discourage the commitment to greater access that drives these projects, especially when the content is something that could genuinely benefit scholarship and that has been previously unusable.

A second potential problem is the instruction to the Copyright Office to develop “best practices” for different kinds of content that would have to be followed for a search to qualify as reasonably diligent. Georgia Harper thinks this is a guarantee that the content industries will write the rules, and she may be right. Unlike the case of proposed file-sharing legislation, however, such a role for industry is not actually specified in the bills. In any case, I think most librarians working on digital projects would welcome the guidance of best practices, even if the door to using orphan works were opened only a little bit. So much of our collections are unavailable for use as things now stand, and we have such high certainty that many of those works genuinely have no one to care about how they are used, that even restrictive rules for a qualifying search would advance the cause of digital access. Again, I think many libraries will take the necessary trouble when the content and the opportunity seem worthwhile. Restrictive rules will help only small digitization projects, of course, which may be the point, but even so the digital environment could be greatly enriched.

Finally there are the added rules for pictorial, graphic and sculptural works. These are the categories whose owners have most vocally opposed orphan works reform because they fear that it will be too easy to call these works orphans. The problem is that most such works carry no obvious notice of the copyright owner. The proposed bills specify that this lack by itself does not make the work an orphan, and it directs the Copyright Office to certify a database “to facilitate the search for pictorial, graphic, and sculptural works that are subject to copyright protection.” Such a database would actually probably be welcomed by libraries, since it would both facilitate use of orphan works and provide a source for needed metadata. The big problem is that such a source does not seem to exist right now, and creation of it would delay implementation of the orphan works exception for as much as 5 years. Since images and graphical works are a large part of the collections libraries would like to digitize, this kind of delay would be a huge blow to the effort to give the public access to much of our unexploited cultural heritage.

Even with all these restrictions and potential problems for using the orphan works mechanism, I am inclined to think of these bills as half-full glasses. For one thing, it has been a long time since a genuinely user-centered proposal has even been considered by Congress. Also, this is a rare situation where libraries, higher ed., publishers and the recording industry have worked together and agreed on a reform regarding user rights. One might suggest, cynically, that the content industries only agreed to these proposals because they have been made too complex to be usable. But I do see potential uses here, based on the kinds of things I am asked about, even if only for a subsection of textual works that really are easily established orphans. If the provisions for pictorial and graphic works are long delayed, we will be no worse off than we are now. The only real downside would be if we accept this bill while a better alternative is possible, and regarding that possibility I agree with Georgia that no one should hold their breath.