Category Archives: Copyright Issues and Legislation

Copyright Issues and Legislation, Public Domain

About that simian selfie

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By now, most people know about the macaque monkeys that took pictures of themselves in the Indonesian jungle, and the controversy over who, if anyone, owns a copyright in the resulting pictures.  The events actually took place several years ago, but the popular news media has recently picked up the story because of threats by the photographer whose cameras were used, David Slater, to sue Wikipedia if the photographs, which Slater says are his intellectual property, are not taken down.  Wikipedia refused his take down request, and the story has gone viral.  I know a copyright story has penetrated into popular culture when I am asked about it at home, over the dinner table!

la-fg-british-photographer-monkey-selfie-20140-001There has been so much commentary, including an impassioned defense of the rights of monkey artists, that I am hesitant to wade into the fray.  But I think there are some lessons we can learn from both the story and people’s reaction to it; there is an opportunity here to remind ourselves of some basic principles about copyright law.

So let my offer two comments about the controversy itself, and two comments about the public reaction to it.

First — cards on the table — I am inclined to believe that these photos do not have any copyright protection because they lack any element of human agency.  The fundamental principle of copyright law, stated very early in the U.S. law, is that copyright protects “works of authorship.”  And although I never really thought the idea would be challenged, I think authorship implies human agency.  There must be a spark of creative, a decision to create a work, for something to be a work of authorship, and these photos do not have that.  The story has shifted a bit over time, but it does not appear that Mr. Slater gave his cameras to the monkeys deliberately.  Even if he did, that could hardly be called a creative decision.  He had no control over what they did with the cameras; they were as likely to smash them on the ground as to take pictures.

In the well-known Feist decision about the white pages of phone books, the Supreme Court discussed the idea of a work of authorship, and told us that mere hard work — sweat of the brow, as they said — does not by itself earn copyright protection.  A work of authorship must be original in the sense of not copied, but it also must have a spark of human creativity.  It need not be much, but some human decision is required.

By the way, the Feist decision is a roadmap to why Mr. Slater’s arguments about the money and effort that went into his photo-taking trip to Indonesia do not succeed in convincing me that he should have a copyright in these specific photos.  His other argument, that the monkeys stood in the shoes of a hired assistant, such that Mr. Slater should own the copyright in these photos as the “employer,” also fails, if it were ever seriously proposed. For one to be an independent contractor, human agency is again required.  In U.S. law, there must be an explicit agreement before any copyrighted work created by an contractor could be considered work for hire.  And monkeys do not have legal capacity to enter into a contract.  This is a legal point; no matter how smart other creatures are or the degree to which humans should recognize animal rights, the law, including copyright and contract, deals with relationships between human beings.

Human relations are the foundation of my other legal point about this situation.  We need to remember that copyright has a specific incentive purpose; it is designed to reward creators so that they will continue to create.  The law grants a government-enforced monopoly so that authors and other creators can make enough money to support their creative efforts.  And this justification completely fails when the creator is not a participant in human society.  Granting a copyright in a monkey-taken photograph would be a mockery of the incentive purpose of the law.

Mr. Slater seems to argue the incentive purpose of copyright when he asserts that it takes a lot of hard work and investment to be a photographer, and only a few of the many photos he takes will make any money.  All true, I am sure, but not relevant.  This is not a photo that he took, and it does not meet the standard of a work of authorship eligible for the peculiar legal structure we humans call copyright.  Many reactions to this story have focused on the idea that it is somehow unfair to deny Mr. Slater profit from the photo.  But copyright law is not about fairness, nor does it exist to reward industry or protect an investment.  Laws are passed for many purposes, and fairness is often well down on the list of reasons.  It is silly to expect to be able to use copyright to leverage some result considered “fair” in every situation that involves an (apparently) creative work.

My final observation about the reactions this story has provoked is actually eloquently made by Mike Masnick of TechDirt when he writes about “How that monkey selfie reveals the dangerous belief that every bit of culture must be owned.”  It is curious to see how uncomfortable many people are with the idea that no one at all owns these photos; that they are therefore the property of everyone.  Perhaps it is the unfortunate influence of the big content industries that makes some people uncomfortable with the idea of the public domain.  One of the early articles in this new round of media coverage asked its readers to vote on who owned the copyright in the photo.  Most voters split between Mr. Slater and the monkey, with less than 17% being willing to assert that no one owned it, it was in the public domain.  And apparently Wikipedia has decided to let the public vote on continuing to make the photo available.

Maybe the real lesson we should take from this silliness is that the public domain is real, and it is important.  Much of human culture would not have been possible without free access to our shared literary and artistic heritage.  The U.S. Constitution builds a public domain in to the very words by which it gives Congress the power to pass copyright laws, by requiring that those rights be “for a limited time.”  We cannot have copyright without a public domain; to attempt that would be cultural suicide.  So we need to learn not just to accept the public domain, but to celebrate it.  Perhaps that is why the monkey is smiling,

Copyright Issues and Legislation, Fair Use, international IP, Technologies

Copyright roundup 3 — Changes in UK law

In this final installment of the copyright roundup I have been doing this week, I want to note some remarkable developments in the copyright law of the United Kingdom, where a hugely significant revision of the statute received final approval this month and will be given royal assent, the last stage of becoming law, in June.

Readers may recall that the UK undertook a study of how to reform copyright law in ways that would encourage more innovation and economic competitiveness.  The resulting report, called the Hargreaves Report, made a number of recommendations, many of which were focused on creating limitations and exceptions to the exclusive rights in copyright so that the law would work more like it does in the U.S., including the flexibility provided by fair use.  The final results of this legislative process do not include an American-like fair use provision, but they do result in a significant expansion of the fair dealing provisions in U.K. law to better accomplish some of the same things fair use has allowed in the U.S.

Fair dealing is found in a couple of provisions of the British law and allows certain specified activities if those activities are done in a “fair” manner, with specified criteria for fairness.  Until now the categories have been narrow and few, but Parliament has just expanded them dramatically.  A description of this expansion from the Charter Institute of Library and Information Professionals can be found on the CILIP site.  A number of activities that are probably permitted by fair use in the U.S. are now also encompassed by fair dealing in Britain, including private copying, copying by libraries in order to provide those copies to individual users, and some significant expansion of the ability to make copies for the purpose of education.

On this last point, I wonder if the two British university presses that are suing a U.S. university over educational copying have noticed that the tide is against them even at home.

There is an explanatory memo about these changes written by the U.K. Intellectual Property Office available here.  It is interesting to see how certain goals that have been accomplished by the courts in the U.S. and, importantly, in Canada are now intentionally being supported in this British legislation.  As I say, we are seeing a fairly strong international tide pushing towards expanded user rights in the digital environment, lest legacy industries use copyright to suppress economic development in their anxiety to prevent competition.

Several points about this legislative reform seem especially important to me.

First is the emphasis in several of the new provisions on supporting both research with and preservation of sound recordings and film.  This is one of several places where the U.K. may reasonable be said to have just leapfrogged over the United States, since the provisions about non-profit use and preservation of music and film remain a mess in our law.

Second, the British are now adopting an exception for text and data mining into their law.  This is huge, and reinforces the idea I have expressed before that libraries should be reluctant about agreeing to licensing terms around TDM; the rights are likely already held by users in many cases, so those provisions really would have the effect, despite being promoted as assisting research, of putting constraints (and sometimes added costs) on what scholars can already do.  This is probably true in the U.S., where fair use likely gets us further than vendor licenses would, and it has now been made explicit in the U.K.

Another major improvement in the U.K. over U.S. copyright is the fact, explained in the CILIP post, that

[M]any of these core “permitted acts” in copyright law given to us by parliament all not be able to be overridden by contracts that have been signed.  This is of vital importance, as without this provision, existing and new exceptions in law could subsequently simply be overridden by a contract. Also many contracts are based in the laws of other countries (often the US). This important provision means that libraries and their users no longer need to  worry about what the contract allows or disallows but just apply UK copyright exceptions to the electronic publications they have purchased. 

This type of approach is desperately needed in the U.S.  If we truly believe that the activities that are supported by core exceptions to the rights under copyright, like education, library services and fair use, are beneficial to society and part of the basic public purpose of copyright, they should remain in place regardless of provisions inserted into private law contracts.  Now that the British have made this acknowledgement, it is time for the U.S. to catch up.

Competitiveness is often an important part of the discussion over copyright law.  Rights holders argue that terms should be lengthened and enforcement improved in order to enhance competition with other nations.  The U.K. began its copyright reform process in order to improve its ability to compete for high-tech business.  And this new revision of the British law puts the U.S. back in a situation where we must continue to strengthen not the rights of legacy industries but the rights of users — which is where innovation will come from — because other parts of the world are moving past us in this area.  How to we do this, in the two key areas I have identified?  In the area of the right to mine text and data for non-profit research purposes, this is something our courts can do, through interpretation of the fair use provision.  We can hope that such an opinion might appear in the near future, although I am not aware of what case might prompt it.  But contract preemption is something that Congress will have to address.  If the U.S. Congress is serious about copyright reform, and really wants to help it to continue to be a tool of economic progress in the U.S., they should put the issue of making user rights exceptions impervious to contract provisions that attempt to limit or eliminate them at the top of the legislative agenda.

Copyright Issues and Legislation, Fair Use, Orphan works

Copyright roundup 2 — Orphan Works

Recently the Copyright Office has held a series of roundtable discussions and comment periods on the subject of orphan works.  As seasoned readers will know, this has become a kind of movable feast, happening at regular but unpredictable intervals.  My suspicion is that the CO is under a lot of pressure from big rights holder groups to find some way to impose a collective licensing scheme for orphan works, and these periodic discussions and reports are an effort to stave off the importuning of the lobbyists.  Certainly Congress has shown very little interest in adopting an orphan works “solution,” and as more and more courts recognize that fair use can move us a long way towards productive uses of orphaned works without introducing the “tax for nobody” that would be imposed by an extended collective licensing scheme, that appetite is likely to decline even further.

Because the events seem to have so little payoff, I admit that I allowed the pressure of other work to cause me to largely ignore this iteration.  In the past I have helped Duke and other organizations prepare comments, but this time I left the heavy lifting to colleagues.  Fortunately their is a growing cadre of people able to advance the arguments in favor of fair use and the best ways to deal with the immense problem of orphan works, so my neglect was trivial.  But I still want to help my readers find some of the best commentary from this latest round of discussions.

From what I have heard, at least one of these roundtables generated a lot more heat than light, featuring some shouting and at least one direct threat of litigation from a rights holders’ representative.  But apart from the circus atmosphere, substantive issues were discussed, and a great summary of the more mature parts of the conversation can be found in this post from the ARL Policy Notes blog.

For the library community, the strongest support we get in these events comes from the superb work of the Library Copyright Alliance, which is supported by the ALA, the ARL and the ACRL.  The full set of comments prepared by the LCA and submitted on behalf of our profession is a wonderful introduction to the problem, why it matters so much to libraries, and the directions from which a solution might come.

Perhaps the most important result of this discussion, building nicely on the LCA comments, is this great set of comments about myths and misstatements regarding fair use.  These events sometimes seem like mere opportunities for lobbyists to tell tall tales to Congressional staffers and bureaucrats, and it is often necessary to try, after the fact, to set straight a very crooked record.  On the issue of fair use, Brandon Butler, Peter Jazsi and Mike Carroll, all from American University, do a great job of correcting the erroneous things that were said in these public events.  Their comments offer a clear vision of fair use as a coherent and reliable doctrine that has evolved logically over time, continuing to perform its core function even in periods of rapid technological change.  This is a great statement and should be required reading for every librarian and academic.

One sentence summary of the comments; fair use is neither unpredictable nor incoherent, as some have argued, but is an evolving doctrine that is relied upon safely by millions of ordinary people and can provide a strong foundation for the careful consideration of even mass programs of digitization.

Finally, as I said above, one of the purposes of these regular events seems to be to try to stumble towards an extended collective licensing scheme that Congress might consider, even though these schemes impose an unnecessary tax on users without benefiting legitimate rights holders and have not worked well in the nations that have tried them. These comments about ECL schemes from the Electronic Frontiers Foundation are also worth reading. They do an excellent job of briefly explaining the broad consensus that ECL is a poor solution to the orphan works problem.

 

Copyright Issues and Legislation

Copyright roundup 1– the Supreme Court

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Last week the U.S. Supreme Court ruled in a copyright case, and I want to make readers aware of it, but also point out that it is likely to have little impact on libraries. In Petrella v. MGM Studios, the majority of the Court, in an opinion written by Justice Ginsburg, held that the equitable doctrine called “laches” cannot be used to stop a rights holder from bringing a lawsuit even where she has delayed her filing for twenty years. Laches is a judge-made doctrine that prevents people from “sitting on their rights” unreasonably, especially where the delay is prejudicial to the defendant. In this case, however, the Court held that the scheme built into the copyright law — a very long term of protection but a three-year limitation on recovery for infringement — adequately accounts for the risk of delay.

The facts of the case are odd.  Ms. Petrella owns all of the rights in the screenplay for the movie Raging Bull, and has done since she inherited from her father in 1981. She renewed the copyright in 1991, and first informed MGM of her rights seven years later, in 1998.  She did not file suit for infringement until 2009. MGM argued that she waited too long, that she had delayed in order to bring suit when it would be most lucrative to her and financially difficult for the studio, and that important evidence had become unavailable due to the delay.  For all these reasons the lower courts dismissed her lawsuit, relying on the equitable doctrine of laches. But the Supreme Court reversed, saying that the structure of the copyright law itself anticipated and accounted for delay. Petrella is entitle to recover for infringements that occurred in the three years prior to her lawsuit, if she can prove infringement, and the district court must give her that chance.

The Court’s opinion is very pedagogical in its approach, providing a clear account of the four major doctrines in play in its first section.  That portion, at least, is worth reading because it explains some obscure doctrines quite well. I am interested here in one specific part of the copyright law related to the case, the idea of a rolling statute of limitations. As Justice Ginsburg notes, the term of protection is very long, and if a rights holder could sue anytime for acts that occurred many years earlier, the result would be a tremendous amount of litigation and some manifest injustice. So the law provides this three year window. A rights holder can, apparently, bring a lawsuit whenever she wishes, but can recover damages only for infringing acts that occurred within the three years immediately prior to the litigation.

Imagine, as an example, that I wrote a book that infringed the copyright of a famous author.  My book sold poorly, but, freakishly, one copy per month was sold every month for five years. At the end of that time, famous author sues me.  That suit can recover damages only for the 36 infringements that occurred in the previous three years (one infringing copy sold per month in those three years).  The 24 copies sold in the two earlier years are outside the window created by this rolling statute of limitations, so famous author cannot reach back to include those infringing acts in his lawsuit. By contrast, if my infringement had been a single unauthorized public performance of famous author’s work, about which he knew when it took place, but he waits four years to sue me, he will be entirely out of luck. That single act of infringement (as opposed to the ongoing sales in my first example) took place too long before the lawsuit and is outside the window of the statute of limitations.

One thing this case reminds us is that copyright issues make for strange alliances.  As usual, the split in the Court is not along usual liberal v. conservative lines.  Scalia, Thomas and Alito join Ginsburg, Kagan and Sotomayor in the majority opinion, while Roberts and Kennedy join Breyer in his dissent. One thing that is consistent is that Breyer and Ginsburg have very different views about copyright, and they are usually the opinion authors on the two sides of any copyright issue that comes before the Court.  Another oddity is for a major motion picture studio to be arguing in favor of a limit on rights holders’ ability to recover for infringement. The application of laches, had their argument been upheld, would almost certainly have come back to bite them. Their defense of laches as a limitation on the right to sue even for infringing acts that occurred with the three year statute of limitations in this peculiar case seems to have been a matter of pure opportunism.

In her opinion, Justice Ginsburg makes one remark that is rather striking and represents a new approach for the Court.  She is defending the option of a rights holder to delay her lawsuit for a variety of reasons, including, as in the Petrella case, to see if the recovery would be worth the cost of suing.  But this is what J. Ginsburg says:

There is nothing untoward about waiting to see whether an infringer’s exploitation undercuts the value of the copyrighted work, has no effect on the original work, or even compliments it. Fan sites prompted by a book or film, for example, may benefit the copyright owner.

I don’t know that the Court has every before acknowledge that infringements might be beneficial to rights holders. Perhaps this is an acknowledgement of the myriad potential for reuse and remix. Certainly the authors of fan fiction should feel buoyed by the remark. From a more technical perspective, it seems to me to further undermine what was once a strongly held belief that whenever infringement was found, harm could be presumed.  It seems clear that the Court is now reinserting harm as a separate element in the plaintiff burden of proving the tort of copyright infringement.

Although I am usually more often on Justice Breyer’s side on copyright issue than Justice Ginsburg’s, in my opinion the majority opinion seems right given the particular circumstances of the case, and the way the statute is constructed.  In his dissent J. Breyer asserts that the majority is now “erasing laches from the copyright lexicon,” but it is not clear to me that that is the case.  J. Ginsburg acknowledges some extraordinary cases where laches would still apply to bar a lawsuit over copyright infringement, but she does not find such circumstances in this case.  And although J. Breyer is persuasive in the suggestion that laches does still have a place, it is not clear that the Petrella situation presents such circumstances, and he really does not argue that it should.

For routine library practices this case will have relatively little impact.  Libraries try hard to avoid infringement, of course, and, when challenged, they have strong defenses built into the statute, so they need rely less on equitable defenses like laches.   As I said above, the main value of this opinion may be an opportunity to be reminded of the doctrines surrounding when a lawsuit can be brought and when it would be untimely.  But it also raises the possibility, albeit obliquely,  that a defendant could argue that there has been no harm from the infringement and even that the added distribution of the work has supported its commercial value.  Since Judge Chin made this argument in his dismissal of the Google Books lawsuit brought by the hapless Authors Guild, even oblique support from the Supreme Court is significant.

Copyright Issues and Legislation, Licensing, Scholarly Publishing

Superrights for textbooks?

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This past week there have been a lot of angry blog posts about the new “Connected Casebook” plan from Aspen Publishers (Wolters Kluwer Legal Education) that would attempt to deprive students of their rights under the First Sale doctrine in U.S. law to resell the books that they buy.  Aspen publishes case books — the textbooks made up largely of court decisions that are fundamental to the teaching in U.S. law schools.  With this new program they are “offering” students allegedly perpetual access to an online version of the book with digital tools, but attempting to require that the print version of the book be returned after the class is over, even if it is marked up and annotated.  The idea, of course, is to undercut the secondary market for print textbooks so that each student will have to pay $200+ for a new book package.

Many folks have already critically examined the plan, so I will just offer some links to those earlier posts — from law professors Josh Blackman and James Grimmelmann, from the Electronic Freedom Foundation and from the Washington Post.  It is worth noting that Professor Grimmelmann began a petition that includes a pledge from law professors not to assign Aspen casebooks.

Since these blog posts were posted, Wolters Kluwer has responded with a letter in which they clarify their intentions, stating that the Connected Casebook program will be an option for students, but that they will still be able to elect to buy a traditional print textbook in which they will have the right of first sale, meaning that they can resell the book once the class is over.

In spite of this plethora of words about the issue, I have several comments I want to make.

First, just a reminder that these attempts to undermine the right of first sale are an effort from publishers to gain a sort of “super” property right.  No other property owner expects to be able to sell their product and still be able to prevent the purchaser from making a resale.  To see the absurdity of this, imagine if Ford tried to shut down the market for used cars by including such a restriction in a purchase contract; it would be a quick way to go out of business.  If Aspen really cannot survive in a market where resale is an option — this has been the case in the U.S. for its entire history, as well as in the rest of the world for a long time — it is probably time for them to shut off the lights and go home.

At least I suppose we should be grateful that Aspen says this will be only an option, not the sole way in which textbooks can be obtained.  They are saying that the digital bells and whistles that they will offer with the Connected Casebook program are carrots intended to lure students into surrendering their first sale rights, not sticks that will coerce them.  In that light, it is interesting to consider if it will work.  Studies suggest that the included digital links and things associated with many textbooks do not get used very much.  I wonder if the price will be the same for the traditional textbook, with a resale option included, and the “Connected” casebook, which has outlining tools and allegedly lifetime access to the digital edition, but requires the renunciation of first sale rights?  As Professor Grimmelmann points out, “we know from sad experience that gerbils have better life expectancy than DRM platforms,” so lifetime access is really not very likely.  In any case, case books become outdated really quickly, and the large secondary market (that Aspen wants to curtail) indicates that students are not very interested in lifetime access.

Perhaps this new program should be a teaching moment for law professors.  Licensing and contract law are relevant to nearly every legal subject, after all, so any class in which an Aspen Casebook is assigned might begin with an opportunity for students to reflect on the decision they are asked to make and to explain their ultimate choice.  The interplay of price, features, expectations and rights would make for interesting reflections, and students could begin to try to decide if the restriction requiring return of the book is actually enforceable.

Enforceability does seem like a issue here.  The basic idea is to have students buy a package — print book and digital access — then use the license for the latter to curtail rights in the former.  But our courts have looked very unfavorably on licenses that attempt to curtail first sale, in cases as old as Bobbs-Merril v. Straus (1908) and as recent as Kirtsaeng v. Wiley (2012).  It is true that the Ninth Circuit recently did enforce a license restriction on first sale imposed on software CD-ROMs, but in that case (which seems dubious given the two Supreme Court precedents mentioned above) at least the license was for the same, singular product.  I am pretty confident that courts would be more skeptical of the Aspen license, which attempts to negate a long standing public right in a format that is not traditionally governed by licensing terms at all through the licensing of a different format.  A court challenge to this would be very interesting and would raise the issue, as the EFF notes, of what the boundaries of a sale really are.  Certainly if the scheme were ever imposed as the only option for obtaining these textbooks, it would cry out for an action on the part of law students seeking declaratory judgment on the issue of enforceability.

The biggest takeaway from this controversy should be a reminder of the opportunity to create open educational resources that can avoid all of these silly and desperate efforts from publishers to maintain control even after the sale of a book.  No field is more amenable to open textbooks than law, after all, where the large majority of the content, the cases themselves, are in the public domain.  The licensing problems for online casebooks are greatly reduced, and there are consequently already some excellent examples of open online law texts, including Grimmelmann on Internet law and Herbert Hovenkamp (himself the author of an Aspen casebook) on Innovation and Competition Policy.  I would love to see many of the over 300 law professors who have signed Grimmelmann’s petition commit to creating open online case books in their own fields of expertise.  If that happened, the problem would go away very quickly, and the cost of a legal education would be significantly reduced.

We need to remember that this model for textbook “sales” is likely to spread.  The various strategies that publishers have used to try to undermine the secondary market for textbooks are various and ongoing, as the recent Kirtsaeng v. Wiley case illustrates.  Although it is never put this way, this is part of an overall sense from academic publishers that they are entitled to a larger share of the money that students spend on education.  These strategies would always have the effect of making education more expensive, so we need to remain vigilant for the next such effort and resist it on behalf of the students we serve.

 

Copyright Issues and Legislation, Fair Use

On Copyright and negligence

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Last week I received the April 2014 issue of Against the Grain, which, to be honest, is not a publication I read at all regularly.  But I do sometimes skim it for copyright articles, and today my eye was caught by an op-ed piece from Mark Herring of Winthrop University about the Google Books decision.

Although its title asks a simple and moderate question — “Is the Google Books Decision an Unqualified Good?” — the article itself is quite extreme in its point of view and for the most part does not engage with the actual decision.  Instead it is a hyperbolic diatribe about why we should all be afraid of Google; it ends with the assertion that “In a sense, we all work for Google now, free of charge.”  I have no clue what that means, but it is pretty clearly an exaggeration.  Nevertheless, there are a couple of points made in this op-ed that are prevalent enough to be worth discussing.

By the way, normally I would provide a link to any article I discuss here, particularly when I do so in a critical way.  I want readers to have a way to evaluate the whole debate, not just my side of it.  But in this instance, the op-ed does not appear to be on the ATG website.  So anyone who wants to see both sides, as it were, is encouraged to track down a copy of the April issue of ATG.

I want to start with Dean Herring’s second reservation about what he calls the “Google Book Theft.”  He complains that there is “no evidence, no empirical evidence, that shows any additional exposure of any authors’ works improves royalties” and calls Google Books “cruel” for “taking away from academics any chance to improve [their] anemic bottom lines.”  Of course, it is easy to see the shift in this paragraph when I put the two sentences together — from no “evidence of improvement” Herring moves immediately to “taking away any chance” of improvement, a leap not justified by logic.  But I am more interested in looking at the decision for what it actually is, a legal opinion at the end of the first stage of a court case.  In that context, should we have expected either Google or the judge to have presented evidence of an improvement in royalties?

The point I want to emphasize is that copyright infringement is a “tort” — a civil (non-criminal) wrong for which courts can provide a remedy.  In structure, a copyright infringement case is not very different from other kinds of tort litigation.  For one thing, there must be a finding of harm.  In copyright infringement cases the harm is often presumed — if a plaintiff shows that their copyright has been infringed, the court will usually presume, subject to rebuttal, that there has been harm.  But a judge is entitled to look at a particular set of circumstances, as Judge Chin did, and decide that he can find no harm.  Some harm is a necessary element of most torts and is explicit as well in the fair use argument (under the market harm factor).  So it is asking the wrong question to require evidence of an improvement in royalties; all the court needed to conclude in order to stay within the framework of legal analysis was that the likelihood was more on the side of such improvement than harm.

To put this another way, the burden of showing harm falls on the plaintiff.

This general framework of tort litigation is also important when we look at another argument Dean Herring makes, that after this case fair use could apply to anything.  He writes, “Determining what fair use is now is anyone’s guess.  Everything is, the way I read it.”  It is a fairly common strategy of those who favor stronger and stronger copyright protection to take the line that copyright, and fair use especially, is too difficult and must be avoided because of its uncertainty.  This hand-wringing about how the court has now abandoned all structure or logic in making a fair use finding is really just another version of that argument, in my opinion.  But fair use remains today what it was before Judge Chin’s ruling, an “equitable rule of reason” that requires courts to examine the specific circumstances of a challenged use and determine, based on those particular facts, if the use was fair.  It is not a bright-line rule, but that does not mean it is random, unpredictable or unusable.

Here is where I want to return to tort litigation, and suggest an analogy I heard a few weeks ago from Peter Jaszi, who teaches copyright law at American University.  He reminded his audience that we have lots of laws that depend on courts determining what is reasonable.  It is very common in contract law, for instance.  But Professor Jaszi focused on a different area of tort law for his analogy for fair use — the law of negligence.  For a driver, for instance, to avoid being guilty of negligence she must exercise “due care,” which is defined as the standard of care that a “reasonably prudent” person would exercise in the same situation.  Arguably, this standard for non-negligent driving is even more nebulous than fair use (where we are given factors to assess the facts).  Yet all of us continue to drive, and I dare say most of us think we know what is an appropriate level of care when we do so.  Most of us, anyway, are not paralyzed with fear because the basic rule about legal driving is so uncertain and subjective.  Nor should we be about fair use.  And, of course, neither “fair use” nor “due care” results in a free-for-all, they just give the courts the discretion to look at specific facts and try to render justice.

The best thing that Professor Jaszi said during his discussion of this parallel, and the thing I have come all this rhetorical distance to repeat, involves how we learn what it means to exercise due care as drivers.  The simple answer is that we talk to other people, and we watch how other people drive.  Over time we develop a flexible but fairly accurate sense of what we should and should not do in a particular situation, even if we have not seen the particular circumstances before.  We do not require rigid rules that anticipate every eventuality in order to dare to get in the car each day; we have internalized that nebulous standard of due care and we carry it with us on each trip.  Sometimes we make mistakes, but most of the time we do just fine.  And here is a model for how we should think about fair use. We learn what it is by talking with others about situations we encounter frequently.  We think through the factors in new circumstances as they arise.  We read how courts have applied those factors in defining ways.  And we become good fair users — fair fair users, if you will — just as we become good drivers.

Fair use is neither an empty notion nor a license to do anything, and one case, not even the Google Books case, cannot make it so.  It remains a flexible tool that is a necessary part of the copyright structure, and one which careful and sensible people can learn to use with care and discernment.

 

Authors' Rights, Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing, Uncategorized

Publishing ironies

Would Karl Marx have waived his copyright on principle?  I don’t know for sure, but I rather doubt it.  Marx was not entirely in sympathy with Proudhon’s famous assertion that “property is theft,” and in any case probably expected to make at least part of his living off from his intellectual property.  Nevertheless, there is something rather odd about a left-wing press asserting its own copyright to prevent the digital distribution of the Collected Works of Marx and Engels.  Marx’s interests are not being protected, of course; his works have been in the public domain for many years.  But Lawrence & Wishart Publishing wants to protect its own income from this property by asserting a copyright in new material that is contained in the volumes, including notes, introductions and original translations, and it has demanded that the Marxists Internet Archive remove digital copies of the works.

It is interesting to consider who is being hurt by the distribution and by the take down demand.  The distribution, as I say, does no harm to Marx or his descendants, since the copyright has already expired.  The party harmed, of course, is the publisher, which can continue to collect revenue from public domain works, and is entitled to enforce exclusivity if, as in this case, there is new material that is currently protected by copyright.

So we have the irony of Marxist literature being protected by that most capitalist of business structures, a monopoly, and a left-wing press asserting that monopoly to limit dissemination of Marxist ideas.

Does the take down demand harm anyone?  Much of this literature is available in other forms on the Internet, owing to its public domain status.  Potential readers will presumably be harmed, to a degree, because English versions of some more obscure works by Marx and Engels will become unavailable if the translations in the Collected Works were the first of their kind.  But I can’t help thinking that the folks who are really harmed by this decision are the contemporary scholars who contributed to the volumes published by Lawrence and Wishart.  Perhaps they thought that by contributing to a collected works project they had the opportunity to offer a definitive interpretation of some particular essay or letter.  Perhaps they hoped to make an impact on their chosen field of study.  But those opportunities are greatly reduced now.  Potential readers will find the works they are looking for in other editions that remain available in the Archive, or they will not find them at all.  They will look to other scholars to help them understand those works, scholars whose writings are more accessible.

While I cannot dispute the right of Lawrence and Wishart to demand exclusivity, it is a clear reminder about how poorly the traditional system of publishing, based on state-enforced exclusivity, serves scholars in an age when there are so many opportunities in the digital environment to reach a much larger audience.  I suspect that the price of the Collected Works set is high, and the publisher is quite obscure (a colleague here just shrugged when I mentioned the name), so its distribution will be quite limited.  It is a sad illustration of how traditional publishing that relies on subscriptions for digital material is inextricably mired in the print model, trying desperately to reproduce the scarcity of print resources in defiance of the abundance possible in the digital environment.  The losers in that effort are the scholars whose ability to impact their field is deliberately reduced by this effort — beyond their control — to preserve exclusivity and scarcity.

“Beyond their control” leads directly to the other irony from the publishing industry that I want to share in this post.  A colleague recently sent me a PDF of the preliminary program for the conference being held in Boston next month of the Society for Scholarly Publishing.  It was the description of the very first seminar that caught both her eye and mine:

Seminar 1: Open Access Mandates and Open Access “Mandates:” How Much Control Should Scholars Have over Their Work?Many universities now mandate that faculty authors deposit their work in Open Access university repositories.  Others are developing this expectation, but not yet mandating participation.  This seminar will review various mandatory and non-mandatory OA deposit policies, the implementation of different policies, and the responses of faculty members to them.  Panelists will discuss the degree to which academic institutions ought to determine the disposition of publications originating on their campus.

It is hard to believe that the SSP could print this session description with a straight face.  Surely they know that the law deliberately gives scholars a great deal of control over their work, in the form of copyright.  Scholars exercise that control in a variety of ways, including when they vote to adopt an open access policy, as many have done.  So where is the threat to scholar’s control over their own works?  Perhaps at the point where they are required to relinquish their copyright as a condition of publication.  If the SSP were really concerned about scholars having control over their own writings, the panel for this session would be discussing how to modify copyright transfer policies so that scholarly publishers would stop demanding that faculty authors give up all of their rights.

The SSP has carefully written the session description to make it sound like open access policies are imposed on faculty against their will.  But every policy I am aware of was adopted by the faculty themselves, usually after extensive discussions.  And the majority of policies have liberal waiver provisions, so that faculty who do not wish to grant a license for open access do not have to do so.  On the other hand, publishers almost never provide a similar way for authors to opt out of mandatory copyright transfer, other than paying a significant fee for an author-pays OA option, which offers authors a chance to buy what they already own.  Perhaps this concern about authorial control could be channeled into a discussion about the new models of scholarly publishing that are developing that do not require copyright transfer and that seek alternate ways to finance the improved access so many university faculties are indicating they want.

There is a lot to talk about here, especially in terms of authorial control.  Consulting the authors whose material is published in the Collected Works of Marx and Engels might have engendered discussion of a solution to the issue about the Marxists Archive other than simply demanding removal.  Maybe those authors should have resisted the demand to transfer copyright wholesale to Lawrence and Wishart in the first place. But publishers continue to think in terms of total control over the works they publish; that is the real threat to authors and that is the problem that the SSP ought to be addressing.

Copyright Issues and Legislation, Fair Use, international IP

Nimmer on infringement 2.0

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I was reminded once again of Mark Twain’s comment — “Only one thing is impossible for God: to find any sense in any copyright law on the planet” — as I listened to Professor David Nimmer deliver the annual Frey Lecture in Intellectual Property at the Duke Law School this week.  As the person now responsible for revising and updating the seminal treatise Nimmer on Copyright, which was begun by his father over fifty years ago, Professor Nimmer has the monumental task of trying to make U.S. copyright law and jurisprudence coherent by creating a framework that makes it all (or most of it) make sense.  Judging from his lecture, it is a task he embraces with grace, humor and aplomb.

The title of Nimmer’s lecture was “Infringement 2.0,” and his overall framework involved the changing role of copyright and infringement in the current environment, where copyright protects every scrap of original expression, whether the creator needs or wants that protection, and where copying and widespread distribution can be accomplished with the click of a mouse.  I want to try to outline several points from the lecture that seemed especially interesting to me (fully recognizing that I alone am responsible for any misrepresentations of Prof. Nimmer’s meaning).

Nimmer began with a more qualified definition of infringement that we tend to think about normally, in my opinion — the unauthorized wholesale copying of works of high authorship.  Not just unauthorized copying, but wholesale copying of works of high authorship.  This definition seems to suggest that courts should not spend time worrying about copyrights in family photos and other ephemera; Nimmer even raised the question of whether we should protect pornography, although he immediately recognized the First Amendment issues that such a stance would raise.

With this qualified definition of infringement as a starting place, Nimmer took us on a tour of some recent copyright rulings.  What I found really interesting was his suggestion that courts are using fair use, in the digital environment to approximate the qualified definition of infringement that he suggested.  Two examples will have to suffice.  In the case involving the anti-plagiarism software Turnitin (A.V. v. iParadigms), the Fourth Circuit rejected an infringement claim based on the copying of entire student papers that are submitted to the service and stored to be used for comparison against later submissions.  The Court reached this result by finding that Turnitin’s use was a fair use, and Nimmer suggested that this use did not meet his qualified definition of an infringement because it did not copy works of “high authorship.”  More significantly, perhaps, Nimmer also approved of the District Court decision in last year’s Google Books case that Google’s scanning of millions of titles was a fair use.  In his framework, Google’s scanning did not amount to “wholesale” copying; even though entire works are scanned in to the database, users see only “snippets,” and those very short excerpts serve important social purposes.

Whatever one may think of the individual cases, this was a fascinating approach.  The copyright law says that what is fair use is not, therefore, infringement, so it makes perfect sense, for one sufficiently learned and bold, to try to understand fair use jurisprudence by looking at the limits on infringement that are thus defined by implication.

Another topic Nimmer addressed at length was the doctrine of first sale, and he was highly critical of the Ninth Circuit decision in Vernor v. Autodesk, which found that Mr. Vernor committed copyright infringement when he resold legal copies of CAD DVDs in apparent violation of licensing terms.   The Ninth Circuit spent a lot of time examining those license terms, but Nimmer suggested that they were asking the wrong question.  The proper question here, he suggested, was not “was this a sale or a licensing transaction,” as the Court assumed, but rather “who was the legitimate owner of the material substrate that made up this copy?”  He pointed out that in both the foundational Supreme Court case about first sale, from 1908, and in last year’s decision in the Kirtsaeng case, the Court was dealing with legal copies where an attempt had been made, through a license, to restrict downstream resale of those copies.  In both cases the Supreme Court ignored those attempts at licensing and allowed the legitimate owner of the material copies to resell the works on whatever terms he could negotiate.  Based on those precedents, Nimmer suggested that the Ninth Circuit erred when it found that Vernor had infringed copyright with his resale, based on provisions in the purported license.

Another place where Nimmer suggested a radical way to rethink the copyright environment was on the international front.  He asserted that the foundational principles of international copyright agreements — the prohibition of formalities and so-called “national treatment” — simply do not make sense in the Internet age, where potential copyright infringements nearly always cross national borders, and copyright owners are often impossible to locate.  He suggested that this out-dated approach be replaced by something the U.N. and the W.I.P.O could do very well — a searchable, worldwide registry for copyright owners that Nimmer called a “panopticon.”  His idea is that if a copyright owner has registered his or her work in the panopticon, they would be entitled to significant remedies for any act of infringement that is found.  If they do not register, however, a action for infringement could only result in an award based on actual losses, not the much more substantial “statutory damages” that are often available.

This idea is nothing if not ambitious, but its foundations are commonsensical.  If copyright protection is going to be completely automatic, and no notice on individual works is required, it is unfair to insist that users must have authorization for their uses if the rights holders have done nothing at all to make their claims known or to facilitate asking for permission.  Lots of other property rights regimes have notice or registration rules (think of buying a house or a car) and those rules are in place to protect the owner.  Why not a similar regime for international copyright, with an incentive, in terms of potential recovery available, for participation?

Finally, I want to end with Nimmer’s prediction about the prospect of a new copyright act in the United States.  It seemed that he does believe that Congress will seriously undertake such a thoroughgoing revision of the law, and he suggested a betting pool on when the new copyright act would pass.  For himself, he wanted to reserve a date in May of 2029.  So we have that to look forward to.

 

Copyright Issues and Legislation, Scholarly Publishing

More than meets the eye

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When I first saw the story about the conflict between the Social Science History Association (SSHA) and Duke University Press (DUP), I thought I had best not comment about it. But since then a number of my colleagues have gotten in touch with me and also made comments about the case that miss some essential elements, in my opinion. So I decided I will express my opinion about the dispute thus far, which is that there is probably no good outcome to this case.

Let me start by saying, however, that even though I work for Duke and specialize in copyright issues, I have absolutely no involvement in this case and no “insider” information. As Will Rogers said, “all I know is what I read in the papers.” What I say here is my own opinion based on those reports and nothing more.

The basic facts are easy to restate.  The SSHA has informed DUP that it wants to end its long-standing association and look for a different publisher for its flagship journal, Social Science History.  The Press, however, asserts that language in their original contract means that the SSHA can stop participating in the journal, but cannot remove it from the control of DUP.

The first point I would make about this dispute is that it involves a specific piece of contract language that is probably unusual.  For that reason I think some of the comments about how this case might determine the future for lots of other society journals are exaggerated.  My guess is that this case will eventually be resolved through an interpretation of that specific language and thus, even if there is a court decision instead of a settlement, it will not have too much of a ripple effect.

Most of the comments I have seen (from librarians and academics) have assumed that Duke University Press is the bad guy here, trying to wrest control of a scholarly journal out of the hands of scholars.  While I do not intend to mount a defense of DUP here, I do want to suggest that there is more to this case than a good v. evil argument about academic freedom.  This is a business disagreement, and regardless of which side wins, in my opinion, it will probably not be a good outcome for scholarship.

To understand a lawsuit, it is always a good practice to ask why the plaintiff decided to file the litigation in the first place.  A commenter on the Chronicle story linked above suggests that it is hard to understand in this case, since he believes the results could not justify the costs.  But surely the SSHA thought it was worthwhile, and a little deeper reflection suggests why.  In their statement, the SSHA explains that they wanted to “assess the open market” to find out what Social Science History is “worth.”  That should tell us pretty clearly that the SSHA wants to shop the journal around to the big commercial publishers in order to get a big payout to the Association.  Other societies have done it before, and it seems clear that the SSHA wants to cash in on its journal.  So the reason the lawsuit is worth the expense is that the SSHA has expectations of perhaps hundreds of thousands of dollars in profit if they can sell their “brand name” journal to Wiley or Sage.

By the way, this is why the society would not be satisfied to simply walk away and start up a new journal to compete with a continuing Social Science History published by DUP, as that same commentator suggests.  As I said, this is a business dispute, and the key asset at issue is the brand of the journal, its “goodwill” as it is called in economic valuations.  Presumably no large commercial press would be willing to pay big money for a new start-up that the SSHA might launch if it lost control over Social Science History.  The marketing and the value for a new purchaser depends on that well-established title being on the auction block.

So what will be the result if the SSHA wins this lawsuit or gets control over the title in a settlement?  I think the inevitable result will be a sale to a large commercial publisher and subsequently much higher subscription rates for libraries and other subscribers.  In previous cases where a society has sold its journal or journals to a big publishers, we have seen prices increase by as much as three or four hundred percent, especially if the journal has had a fairly moderate price to begin with (I have no idea about the current subscription price for Social Science History).  Nor do I think that a win by the SSHA would necessarily be a win for academic freedom or for keeping scholarship in the hands of scholars.  If the journal is sold to a large publisher, experience suggests that the scholars who make up the society will have less control over it than they did before and that the quality of the journal will decline.  But lots of money will potentially flow into the SSHA coffers.

What happens if, on the other hand, Duke University Press wins the case or otherwise retains control over the journal?  In my opinion, DUP has taken the stand that it has in large part to defend the value of its journal list against the loss of one of its premier titles.  So if they win, at least their journal package will not lose value.  But this is still probably not a good outcome, since the journal will be divorced from its roots and from the scholarly community that has made it a valuable brand in the first place.  As several people have suggested, DUP might have a hard time finding top scholars in the field who would be willing to edit the journal or review for it if it is severed from its connection to their scholarly society.  So while its value for DUP would be preserved initially, I think a decline in quality and in value over time is inevitable.

This is why I find it impossible to root for either side in this dispute (even though I usually root for Duke teams).  To me, this case is an object lesson in why scholarship should not be treated as a commodity around which commercial value, and the disputes that accompany such value, accrues.  The radical distinction between the “gift economy” in which individual scholars work, giving away their most precious intellectual assets to publishers without remuneration for the sake of the scholarly mission, and the commercial economy in which publishers work, and to which some societies aspire, was never more clear.  Whoever wins this case, the scholars who donate their labor as authors, editors and reviewers for this journal will be the long-term losers.  And the only way to change that situation is to radically rethink they way scholarship is supported and disseminated.  We need new business models, focused on open access and better ways to support the scholarly mission, while all this dispute offers us is a fight over the way the same old traditional pie of subscription money is sliced.

Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing

Setting the record straight about Elsevier

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There has been a lot of attention given to the moves by publishing giant Elsevier to enforce its policy regarding authors’ rights to post his or her article on a personal website or in an institutional repository.  Since Elsevier began sending take down notices last fall, first to Academia.edu and then to individual universities, it has become well-known that authors are allowed, under their contracts with Elsevier, to post their “final submitted version,” which refers to the last version of the article, after peer-review, that is sent to the journal, but not the final published version with whatever copy-editing and formatting that the publisher has added.

This is a difficult distinction for faculty authors to understand.  My colleagues and I talk about it all the time with our faculty authors, but they persistently do not see much difference between the two versions, so they sometimes believe that there is little reason to observe the distinction.  Publishers think (or at least say publicly) that they add a lot of value to submitted manuscripts, but a great many authors do not see it that way.

Unfortunately, some of the attention that this new strategy from Elsevier has garnered has made the difficulty of explaining what is going on to faculty authors a little more difficult.  This article from The Economist Called “No Peeking…” is a case in point.  The article correctly suggests that this is going to prove a self-defeating tactic for Elsevier, whose desperation to stem the movement toward open access often leads it into foolish decisions.  The Economist, however,  misstates the copyright law in its article in a way that will unfortunately reenforce a common misconception on campuses.

Here are three sentences from The Economist article that embody the misconception I am concerned about:

Like journalists writing for a newspaper, academics submitting an article to a journal usually sign contracts which transfer copyright to the publisher…. As the University of California, Irvine, which was on the receiving end of some of the takedown notices, points out in advice to its staff, it is usually only the final version of an article, as it appears in a journal, that is covered by publisher’s copyright. There is nothing to stop scientists making earlier versions available.

The problem with the first sentence is that academic authors are really not like journalists.  Many journalists are full-time employees of their newspapers, so that their articles are owned by the newspaper from the start, as works made for hire.  On the other hand, academic authors are not employees of publishers and their writings are not work for hire.  Their rights (as well as those of some free-lance journalist) are entirely governed by the contracts they sign.  The important implication of this is that academic authors have much more control over the rights they surrender and retain than do journalists; faculty members can simply refuse to transfer copyright (because they own it unless and until it is transferred in writing) or they can negotiate the exact terms of publication, transferring or licensing some rights and holding on to others.

The bigger issue in this article, however, is in the second and third sentences quoted above, about how the copyright that is transferred to publishers only “covers” the final version of the article.  This is a common misconception that is both wrong and dangerous.  It is the same misconception that leads some people to believe that if they re-draw an illustration, chart or table from a copyrighted publication, they do not implicate copyright.  But the truth is that a copyright includes any work that is derived from the copyrighted work and is “substantially similar.”  When someone wants to use a figure from a published work, they may well be able to do so under fair use, but redrawing the figure, unless it is redrawn into something quite different (which would undermine the purpose), does not alter the copyright situation.

When we turn to the issue of article versions, the situation is the same.  Each version is a revision of the original, and the copyright is the same for all these derivatives.  When copyright is transferred to a publisher, the rights in the entire set of versions, as derivatives of one another, are included in the transfer.  Authors are not allowed to use their post-prints because the rights in that version are not covered in the transfer; they are allowed to use post-prints only because the right to do so, in specified situations, is licensed back to them as part of the publication agreement.

Once a copyright transfer has been signed, all of the rights that the author may still have are because of specific contractual terms, which are usually contained in the transfer document itself.  In short, these agreements usually give all of the rights under copyright to the publisher and then license back very small, carefully defined slivers of those rights back to the author.  One of those slivers is often, but not always, the right to use a submitted version, or post-print, in carefully limited ways.  For example, many publishers allow posting of the submitted version only on defined websites, usually a personal site or institutional repository.  Often the contracts also allow posting of the submitted version only after some lapse of time.  These restrictions would not make sense or be enforceable IF the author retained some kind of copyright in earlier versions, as The Economist implies.  But they do not; they have only, and exactly, what the contract gives back to them.

One important lesson to be gained from this correction of the language of The Economist article is that publication contracts are extremely important.  They entirely determine what an author can do with his or her own work in the future.  For many academics, signing such agreements is a very bad idea; they should be negotiated, either to make them licenses to publish, which allows the author to retain her copyright, or to be certain that the rights that are licensed back are broad enough and flexible enough to permit the future uses the author wants.  Before the transfer, the author has a good deal of leverage to negotiate these agreements, but afterward she has very little.  So it is vital to pay attention to the agreement itself and not rely on a false sense of security based on a misconception of how copyright works.

Another point to learn from this situation is that the whole idea of article “versions” is artificial.  It has been developed primarily by publishers in order to make a claim that they add substantial value to the final published version, which may or may not be true, depending on the article and the publisher.  Another marketing advantage that publishers get from this fabricated distinction is the ability to claim that they support author rights and reuse of articles to promote better access, while still retaining the ability to slap down authors who use their own articles in ways the publishers have not pre-approved.  As my colleague Will Cross has put it, “This versioning is a creation of publishers to reenforce the sense that they are following the academic “gentleman’s agreement” that Elsevier has been breaking here.”

[Hat tip to Will Cross and to Lisa Macklin of Emory, who discussed the implications of this particular mistake with me by e-mail and provided some ideas incorporated herein. Will qualified his statement quoted above by acknowledging that pre-prints, especially, have a longer history, but the use of these distinctions as contractual dividing lines is related to recent pressures on publishing.]