Category Archives: Copyright Issues and Legislation

Publisher position on author rights

Three academic publishing organizations recently released a short position paper called “Author and Publisher Rights for Academic Use: An Appropriate Balance” that is worth a look from all who are concerned about scholarly communications.  For higher education, the position paper contains elements that evoke hearty agreement and others that demand objection.

If, as a recent comment on the LibLicense list suggested, the purpose of the paper is to call wide attention to two facts, that many scholarly journals already have very “scholar-friendly” policies built into their publication agreements and that copyright is not necessarily a barrier to academic discussion and comment, there would be little to argue with.  It is quite true that many academic journals already allow authors to retain many or most of the rights necessary for subsequent teaching and research uses.  It is important that authors read those agreements to be sure this is true in their specific case and to consider whether or not self-archiving or some other form of electronic deposit is permitted, since such access is becoming more and more important to scholars and to scholarship.

On the issue of digital “open access” availability, the position paper takes an awkward stance.  While citing several journals that have adopted “author-pays” models of open access as leaders, the paper marshals several arguments against mandated public access for research funded with public money.  Some of these arguments are self-contradictory; if one fear about open access is that it will “confuse the scientific record,” why is it suggested that a better course than mandating access to the final version of an article is to post pre-prints?  While pre-print repositories seem less threatening to the traditional business model of journal publishing, the scientific record is best preserved when access to the scholar’s final word is available to all.

One comment at the very end of the report deserves comment.  The publishing organizations take note of the educational exceptions and limitations built into copyright law but assert “that these exceptions are thus far limited to traditional photocopying and do not permit the exploitation of such materials [journal articles] over the Internet.”  This is wishful thinking; no court, that I am aware of, has decided one way or another about how far educational exceptions apply in the digital realm.  The TEACH Act, although largely a failure at its stated purpose, is clearly intended to apply some leeway for education to the Internet.  And the oft-repeated assertion that copyright law is technology neutral implies that there is fair use on the Internet, as the recent Perfect 10 decision held, even if its educational boundaries have not yet been clarified.

Caching, Thumbnails and a Fair Use Win

I am generally wary of relying too heavily on Google to fight all of the battles in copyright law, mostly because their interests and those of higher education don’t always seem very similar. But a fair use win for Google is usually good news for us as well, and the case decided recently (here is the decision in Perfect 10 v. Google) by the Ninth Circuit Court of Appeals is important on a number of points.

The Court of Appeals variously upheld and reversed parts of the previous district court ruling, but the upshot was that fair use was found for three specific activities: the routine caching that computers must do to display web pages, in-line linking and framing of web pages where the target page never resides on the server controlled by the web author doing the linking, and using thumbnail versions to index images found elsewhere on the web. None of these holdings are unique or new, but the Ninth Circuit does a nice job of explaining the technology involved and the reasoning behind its ruling. The “server test” used to find that in-line linking is not an infringement seems so simple and intuitive that one has to fear that other courts will try to complicate it. Linking, of course, is an important way that higher education tries to avoid infringement, so it is nice to be reassured.

As for caching, it seems amazing that we should have to be reminded, but the Court’s analysis is clear and useful:

[E]ven assuming such automatic copying could constitute direct infringement, it is fair use in this context… a cache copies no more than is necessary to assist the user in Internet use… Such automatic background copying has no more than a minimal effect on Perfect 10’s rights, but a considerable public benefit.

The only rain on Google’s parade is some language about secondary liability (liability for contributing to direct infringement by someone else) that could pose problems for Google in that part of the present case, which was remanded to the lower court, and in the future. An nice explanation of the potential harm in this part of the opinion is available here on Prof. Wendy Seltzer’s blog. For higher ed., however, this case is a nice reminder of principles that are necessary and ought to be obvious.

Criminal infringement?

A colleague has recently posted a comment wondering about the impact of a piece of legislation suggested to the Congress this week by Attorney General Gonzales’ office, the “Intellectual Property Protection Act of 2007.” In a letter sent to the Speaker of the House and the President of the Senate, the AG proposes a series of amendments that would increase the enforcement of, and penalties for, criminal copyright infringement.

For most of our history, copyright has been an entirely civil matter, where an aggrieved party would sue the infringer directly for money damages and, sometimes, an injunction to stop the infringement. Only in recent years have we included criminal infringement in the law, where the government itself prosecutes the infringer and penalties can include fines and jail time. Most infringement is still handled through civil suits, but section 506(a) of the Copyright Act now defines criminal infringement in pretty broad terms. For infringement to be prosecuted as a crime, it must be willful, done for commercial advantage or financial gain, and involve either the copying and distribution of works with a total retail value of $1,000 or more or the distribution of a commercial work on a public network. This definition is broad enough to catch many activities like file-sharing in the criminal net, as it is intended to do, but it could also conceivably be used to prosecute other activities that occur in higher education, if the courts were to interpret “willful” and “commercial advantage” broadly enough.

The proposed changes to the law of criminal infringement include increasing penalties (up to life imprisonment for counterfeiting activities that result in a death), including “attempted infringement” as a new offense, giving wiretap authority for infringement investigations and making it easier for authorities to seize materials used in criminal infringement.

While some of these changes seem like a bad idea to me (like the notion of attempted infringement), it is not clear what impact they would have on the fair use provision that is so important to higher education. Presumably a reasonable reliance on fair use would defeat the willfulness requirement for criminal penalties to apply. My broader concern is that the increasing treatment of copyright infringement as a criminal offense is fundamentally opposed to the purpose of intellctual property law as expressed in the Constitution. Congress is allowed to make law around copyrights and patent rights in order “to promote the progress of science and the useful arts.” This justification reminds us that intellectual property is a public good and is thus different from physical property. Once we start treating copyright law as protection for a purely private property interest, similiar to laws against car theft, we step outside the rationale for federal action. Criminal law is usually a matter for the states, and Congress should remember that the reason it is given the power to legislate in this area is precisely because more is involved in copyright than mere private interests.

Public Domain according to Google

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

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

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

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

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

Would a new copyright law be good news?

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

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

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

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

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

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

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

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

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

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

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

Thank you, Stanford

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

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

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

The downside of playing nice

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

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

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

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

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

More about the FAIR USE Act

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

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

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

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

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

YouTube, Copyright and Innovation

When Viacom filed a copyright infringement lawsuit against YouTube, which is owned by Google, we all knew that the fur would fly. No one is neutral about Google these days, and YouTube has also created fierce partisans in the copyright wars.

It is quite possible that the lawsuit is simply a bargaining tool in the fight over the licensing payments that Viacom wants from Google, but, if the case goes to trial, the real issue will be how far copyright law can be used to prevent technological innovations that depend, to some degree or another, on using copyrighted material without permission. This debate is at least as old as the photocopier and the VCR, but the terms of the rough deal stuck by the Supreme Court in the 1984 Betamax case are still being contested.

Several newspaper and online columns over the weekend cast interesting light on this debate .

In the New York Times on Sunday (March 18), Larry Lessig of Stanford Law School makes the important point that Viacom is trying to use the courts to get around the compromise on innovation versus infringement that was established by Congress when it passed the Digital Millennium Copyright Act. The DMCA created a “safe harbor” for ISPs that merely hosted infringing material on their servers without specific knowledge of the infringement, so long as they act according to prescribed procedures once they have such knowledge. Now Viacom, emboldened by the Supreme Court decision in the Grokster case, is trying to revise that compromise through the back door, using the Courts new “inducement” theory of secondary copyright liability to undermine the policy Congress enacted.

Many predicted that the Grokster decision would have a chilliing effect on technological innovation; Lessig’s column suggests that the Viacom suit is a huge block of ice to contribute to that chill.

Along the same lines, Fred von Lohmann of the Electronic Frontier Foundation writes about all of the new technologies that might not have seen the light of day if copyright holders could sue based on the potential that users of the new innovation could infringe those copyrights. Even if one excludes the hyperbolic inclusion of reading glasses on his list, von Lohmann makes a powerful point — photocopiers, VCRs, iPods and even public libraries might be subject to restrictions and per-use fees in the world Viacom envisions.

James Boyle, in a column in the Financial Times, tries to put this debate in perspective by noting that, although it is sometimes difficult to feel sympathy for the ravenous giant that Google has become — it is no longer, as Boyle says, “a helpless start-up” — the interests that Google has pursued in its copyright conflicts often line up with the public interest. His reminder that the issues are much more complex than simply yelling “stop thief” at YouTube and Google (a tactic which Google’s rival Microsoft tried in a recent speech and op-ed), and that we as consumers of intellectual property also have an important horse in this race, are welcome indeed.