Category Archives: User Generated Content

The textbook world is getting flat

Earlier this month I was able, thanks to the organizing efforts of a colleague, to participate in a phone call with Jeff Shelstad, one of the founders of Flat World Knowledge.  I wrote about Flat World some time ago, but I want to take the opportunity (before it fades in my mind) to describe their business in more detail, provide an update about their success and recommend their business model as a genuinely transformative opportunity for higher education.

Flat World Knowledge is essentially a publisher, founded in 2007 and currently focused on the market for “big” textbooks — the ones that cost students an arm and a leg and are issued in a new edition every other year to undercut second-hand resales.  Flat World, in contrast, is publishing their textbooks online, entirely open and free.  The books are licensed under a Creative Commons license.  Like other publishers, Flat World organizes peer-review for the books it publishes and provides copy editing and design services.  So two issues come to mind immediately — how do they make money, and what is in it for faculty who might write or adopt a Flat World textbook.  It is the answers to these questions that really make Flat World such an exciting venture.

First, although students can get free access to their online textbooks (through course-specific URL; more about this in a minute), they also can buy the textbook in several different formats (print, audio and self-print PDF, according to the “How it works” page).  According to Mr. Shelstad, about 50% of students currently opt to purchase a book that has been adopted for their course (at 29.95 for a print-on-demand copy), and Flat World plans to increase that percentage as they add new or improved formats.  Shelstad mentioned formats for hand-held devices, for example, and it seems exciting to me just to know that a textbook publisher is thinking this way.

For faculty who publish textbooks with Flat World, there is an opportunity to earn royalties on every dollar that is spent on their book, as well as the chance to continually update and correct the text.  These authors have a level of continuing control over their work that is unprecedented in the print world.

A unique level of control is also the principal advantage that faculty who adopt a Flat World textbook gain, since they are able to adapt a book for the specific needs of a course they are teaching.  Currently, adopting faculty can move sections of a book around with up / down / delete controls and annotate any portion.   Tools to insert materials and to edit at the word level are in development.  Once a faculty member has adapted and adopted a specific textbook, that version is saved and a course specific URL is created so that students in the class will see exactly the book that has been created, in a collaborative way, for their use.

I was especially interested in how these two different control points — that of the author and that of the adopting instructor — might relate.  I was delighted to hear that the adapted version will be separate from the original, using this system of unique URLs, and that all changes in the adapted texts will be indicated.  This seems to me to be a very sensible way to preserve the integrity of the original authored work while still permitting adaptation for a particular need.

Flat World is showing signs of being a genuinely transformative model for higher education.  They currently have 11 textbooks in their catalog, with 10 more to be added in the coming months.  Even with that relatively modest catalog, there are already over 500 course adoptions and more than 40,000 students using Flat World books.  The staff at Flat World is working on new ways to adapt the books, such as pulling in images, PowerPoint, etc.  It was heartening to hear that one of the reasons roll-out of these features is slow is that Flat World does not want to compromise the high standard they have for design of their books too radically.

Overall this is an exciting model that helps us look forward to the genuinely new ways technology can facilitate classroom and online education.  Just after our phone conversation,  this new announcement came out about Flat World’s partnership with Bookshare that will make textbooks available to people with print disabilities, highlighting yet another possibility for this adaptive technology.

The most dangerous place on the Web

The most dangerous place on the Internet may well be inside that little button that says “I Agree.”  The opportunity to bind oneself to a contract almost unconsciously abounds on the Internet, and the immediacy of the Web encourages click-through agreements that are almost never read and, if they are, impossible to understand.

The Electronic Frontier Foundation has provided a nice primer on on-line agreements in this document called “The Clicks the Bind: Ways Users “Agree to Online Terms of Service.”  This is a long blog post or, in PDF, a three page document that should be read by everyone who uses the Internet.  It helpfully distinguishes major types of online agreements and the relative likelihood that the different forms result in binding contracts.  The document, by EFF’s Ed Bayley makes two programmatic assertions, both of which seem unarguable.

First, users should have to take an affirmative step to agree to terms of service.  Put another way, terms of service that are there if you want to look at them but do not require even that thoughtless click should not be enforceable.

Second, Bayley asserts that terms of service from online service providers should be publicly available, not just presented as a pop-up as one enters the site for the first time.  This would allow public discussion, which is important if people are to get past the habit of clicking without reflection on “I Accept” and come to some awareness of what they are agreeing to.  Even when TOS are publicly available, they are not very easy to understand.  Over a year ago, I printed out the TOS for Flickr just as an example and found that, at that time, they ran to over 12 pages of printed legelese.  A repeat of that experiment shows that they are shorter now — “only” 10 pages.  And to Flickr’s credit, they are available to anyone who wants to see in advance what they are getting into.

Bayley’s short essay is vital information, and the suggestions he makes seem like minimum steps that must be observed if courts are really going to hold individual users to the extensive and complex clauses found in these online terms of service.

Architectural overreaching

This recent post on the TechDirt blog drew my attention (and that of may others) to an earlier note on the Freakonomics blog about an artist who pays an annual fee plus a percentage of his earnings to the University of Texas, Austin for the right to paint pictures of famous UT buildings like the Texas Tower and to use university emblems, even including the burnt orange color scheme.

On TechDirt, notice of this arrangement provoked a lot of angst.  Many of the comments expressed outrage at the “fact” that ordinary citizens who have to pay a copyright fee for photographs they take of public buildings, because of the copyright protection afforded to architecture.  That this is the state of the law is affirmed by several of those comments.  In contrast, the blogger who wrote the TechDirt post in the first place asked a differently focused question –“why should the painter have to pay a fee at all?”

All of the venting in the comments on this blog post reminded me of an article I have been reading by Professor Jessica Litman, about which I shall say more in another post, in which she discusses the “independent threat to the health of the copyright system” that arises from the “widespread perception of the current copyright system as illegitimate.”  The outraged comments point up this perception, even though they are largely misinformed.  The important question to address in this particular situation is really that other one — why pay a fee at all? — since the answer should allay some of the outrage.

The basic response to the concern for photographers and artists is that the copyright law provides an explicit exception, a limitation on the scope of the right in architectural works, that makes most drawing, paintings and photos of buildings non-infringing.  Section 120(a) of the Copyright Act (Title 17 of the US Code) says:

Pictorial Representations permitted — The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing or public display of pictures, paintings, photographs and other picotial representations of the work, if the building in which the work is embodied or is ordinarily visible from a public place.

So there is no way under copyright law for UT Austin or any other building owner to prevent, or extract fees, for paintings and photographs of such buildings, either because they were constructed before copyright protection extended to buildings (as opposed to just plans) or because of the exception quoted above.

Other types of protection that could allow the extraction of a fee from the artist would usually be trademark issues.  University emblems will almost certainly be subject to such protection.  The issue of the burnt orange color scheme, however, is much more doubtful, especially after the decision earlier this month involving a similar issue around an artist’s use of Alabama’s crimson colors in the U.S. District Court for Northern Alabama.

So to return to the question of why the artist should pay this fee, one possible answer, I think, is that he wants to.  For paintings of buildings on the public property of the University, such a fee is probably neither required or enforceable, unless there are trademark elements included.  But the artist could have entered into a voluntary licensing agreement with the University, perhaps out of a sense of loyalty or fairness.  Or, of course, he may just be badly misinformed.  Unfortunately, we frequently encounter situations in which someone asks about a license in a situation where none is required and ends up paying an unnecessary fee.  Copyright owners (or putative owners) have little incentive to correct these misapprehensions.

Can a “batty” ruling effect needed change?

It is thoroughly unbelievable news that US District Court Judge Deborah Batts has issued a permanent injunction against the US publication of a book that purports to update the story of Holden Caufield, the protagonist of J.D. Salinger’s “The Catcher in the Rye.”  The new book, written by Swedish author Fredrik Colting and already published in Britain, is called “Sixty Years Later: Coming through the Rye” and is told by a 76-year-old man called Mr. C.  There is little doubt that Mr. Colting is trying to ride the continuing popularity (which I personally have never understood) of “Catcher in the Rye” by creating a sequel.  But there is a great deal of doubt about whether this is a copyright infringement.  The portions of the decision I have been able to read suggest that Judge Batts got all of the major copyright issues involved completely wrong.

First there was the fair use argument.  In a very similar case involving a retelling of the the story of “Gone With the Wind” from the point of view of one of the slaves at Tara, the Eleventh Circuit Court of Appeal correctly recognized that the new work was a fair use of material copied from “Gone with the Wind.”  And in the recent decision finding that “The Harry Potter Lexicon” was not a fair use,  Judge Robert Patterson, in the same judicial district as Judge Batts, went out of his way to make clear that an author of an original work cannot control all sequels, prequels and reference works.  Judge Patterson even writes, citing other precedents in the Circuit, that “a work is not derivative, however, simply because it is “based upon” the preexisting work.” (p. 39)  But that erroneous conclusion is exactly the foundation of Judge Batts’ decision.

Judge Batts seems to know only one fair use precedent — the “Oh Pretty Woman” case from the Supreme Court — and she applies it slavishly.  Since she does not think that the new book is an actual parody of the original, she holds that it is an infringing derivative work.  But it should be clear to anyone who is a federal district court judge that there are other kinds of fair use than parody; indeed, a quick read of section 107 itself would get one that far.

The real problem, however, is that this should not have been decided as a fair use issue.  In the two cases cited above, there was a substantial amount of material that was actually copied from an original into the new work.  In the case of the “Wind Done Gone,” specific dialogue was reproduced, with commentary and perspective from the “new” protagonist.  In the case of “Coming Through the Rye,” there seems to be no evidence of actual expression that is copied in the sequel.  Judge Batts focuses her objection on the conclusion that “Holden Caufield is delineated by words” and that therefore Holden is copyrighted.  But this ignores the fundamental distinction between expression, which is protected by copyright, and ideas, which are not.  All ideas are delineated by words, but that does not give the ideas themselves, even the idea of a solipsistic teenager who inevitably grows up, copyright protection.  Even before she reads section 107, Judge Batts needs to read section 102(b) of the Copyright Act.

Indeed, her decision is so unaccountable that its leads this commentator at TechDirt to question whether there really is an idea/expression dichotomy in copyright law at all.  But that dichotomy carries a lot of weight in US law; it is frequently cited, including by the Supreme Court, as one of the basic concepts (along with fair use) that keeps copyright law from becoming an infringement of free speech.  Now that Judge Batts has read the distinction out of the law (or failed to read the law at all), the conflict with free speech becomes all too apparent, when a new book can be banned in the US because an old author doesn’t like it.

So what good can come from this ridiculous decision?  First, it should be, and very likely will be, overturned on appeal.  But more importantly, it should prompt Congress to look again at the exclusive right, granted in copyright law, to prepare derivative works.  That right has not always been part of copyright; there was a time when even abridgments and translations were held not to infringe on an original.  The pendulum has now swung the other way, and we grossly overprotect some original works from legitimate reuse because we think those new creations are derivative works.  As is frequently pointed out, Shakespeare could not have written his plays under today’s copyright regime in the US.  It is time for clearer definition of what is and, more importantly, what is not a derivative work that is entitled to protection.  If outrage over Judge Batts’ decision can prompt such clarity, some good might come from this very bad ruling.

New (and not so new) resources

I am delighted to be able to link to a whole new group of resource for understanding and teaching others about copyright law and user rights.  Since most of these resources are video, they offer a nice supplement to the text resources I have listed here and here.

First, because it is the most general, is this new web site called “Teaching Copyright” from the Electronic Frontier Foundation.  This is a full-scale online curriculum designed to teach students about copyright,  It is intentionally offered to counter some of the educational efforts of the music and movie industries, which tend to focus heavily on what is not allow and try to avoid mentioning fair use or other exceptions that benefit users and support new creativity.

Second is what I like to call the most boring seven minutes on YouTube.  I realize that there is great competition for that honor, but this video in which I discuss the copyright and privacy issues involved in recording campus lectures and classes for Internet distribution surely has a claim.  It was made at the request of the Duke Office of News and Communications, and I have reason to hope it is helpful, even if it is not exciting.  If viewers are seeking entertainment after listening to me drone through the rights issues they need to consider, it is worth while looking around at the other videos on the Duke Libraries YouTube channel; many are much more exciting.

Next is this video from JISC on Intellectual Property Rights in Web 2.0 world.  It is a cute, colorful and nicely detailed discussion of rights and permissions issues that need to be considered as one creates new content for the web, and it points to an “online diagnostic tool” that will walk one through the issues in greater detail.  One warning, however, is that because this video and diagnostic tool are created in reference to UK law, where there is no fair use provision, their suggestions for when permission is needed must be reconsidered by US citizen in the light of our fair use provision.  Nevertheless, this is a helpful way of evaluating the issues and the various strands of rights that have to be considered, even if the conclusions will seem too strict to Americans.

The antidote to JISC’s lack of reference to fair use is this final video from the Center for Social Media on Fair Use and Online Video.  The Center has been a great champion of fair use through its work to create best practices documents to guide filmmakes and teachers of media literacy.  Now this video, and the accompanying best practices that it refers to, make the process of figuring out how and when fair use applies to allow a use without permission from the rights holder both clearer and rather entertaining.  This, and all of the resources mentioned above, are additional tools for the ongoin effort to clarify copyright for our students, staff and faculty; it is nice to be able to point to such a array of different, and amusing, media

Big victory for the public domain

Sometimes big victories can happen even in small forums. On Friday a district court in Colorado — the lowest level of court in our federal system — issued a decision with big time implications.  I have written several times before about the interaction of copyright law and the First Amendment protection of free speech, and in an opinion in the case of Golan v. Holder, Judge Lewis Babcock has ruled a portion of the Copyright Act unconstitutional because of a conflict with the guarantee of free speech.

The case involves a fairly technical challenge to a fairly technical provision of the law.  The Uruguay Round Agreements Act (1994), purporting to implement agreements made about international IP protections at the World Trade Organization, restored copyright to foreign works that had already fallen into the public domain in the US because their copyright holders had failed to observe the formalities that the US required up until 1988.  The result was that works that had previously been free for anyone to use suddenly were protected, and people who had used those works for years — like a community orchestra that played the music of Prokofiev — would be liable to infringement suits after a one-year grace period.

The challenge brought against the URAA claimed that taking back a work that had been free to use “altered the traditional contours of copyright protection” and therefore (based on some language from a Supreme Court decision in 2003) was subject to “ordinary First Amendment scrutiny.”  This part of the claim was upheld at a higher level, by the Tenth Circuit Court of Appeals, in 2007.  On Friday, the district court applied that First Amendment scrutiny and determined that the URAA was not narrowly tailored to achieve an important government interest and, therefore, was unconstitutional.

At least two aspects of this decision make it such a big deal.  First, it is one of the first times a court has found an actual conflict between copyright protection and free speech.  As I have argued before (repeating remarks made by Anthony Falzone, who was one of the lawyers for the plaintiffs in Golan), copyright, as a monopoly over expression, seems to create an obvious tension with free speech.  In the past courts have said that fair use and the idea/expression dichotomy are sufficient insurance against unconstitutional suppression of speech, but now, in a fairly unusual set of circumstances, a court has found that even with those safeguards, provisions of the copyright law can go too far.

Second, this ruling makes clear that the public domain, that “commons” of material that is free for all to use and is the raw material for so much new creation, is an aspect of copyright protection itself that must be respected.  If the URAA stood unchallenged, the potential for the government to revoke freedoms Americans already enjoyed in using pd expression would always exist.  By affirming that the promise of the public domain is a part of the traditional contours of copyright, the court has given copyright users their first reason to cheer in a long time.

Given the importance of this case, it is certain to be appealed.  As noted above, the 10th Circuit has already considered one aspect of it, so the prospects on appeal seem favorable.  But the government will assuredly fight this ruling, since it will force them to rewrite a provision of the law arguably needed to conform with international agreements.  There is no doubt that the law could be rewritten successfully; there are models elsewhere in the world of restored copyrights that respect the “reliance interests” of users that arose prior to restoration.  As challenges proceed, however, it will be interesting to see if the argument made by plaintiffs that, in the US and because of our relatively unique First Amendment, American law cannot ever restore any copyrights after works have passed into the public domain, regardless of treaty agreements, makes any headway.

There is a discussion of this decision here, and the order from Judge Babcock is here.

UCG and you

A really superb article has just been released in the American Bar Association Journal called “Copyright in the Age of YouTube.”  Starting from the story of the dancing baby, whose 30-second home movie was the subject of a DMCA takedown notice for allegedly infringing copyright (a story I have written about before), this article does a really nice job of outlining the current issues about how copyright law addresses, or fails to address, the explosive growth of user generated content on the Internet.

Steven Seidenberg, who is described as a lawyer and freelance journalist, has done an enviable job of describing complex issues in a readable and even enjoyable way.  I recommend the article for anyone interested in how the law struggles to keep up with rapid and dramatic changes in technology.  The analogy between trying to police user generated content and playing “whac-a-mole” is just right.  But apart from its general quality and usefulness, there are two points made in this article that I want to highlight.

First, it is fascinating to see the suggestion made by Seidenberg that the Digital Millennium Copyright Act, which was passed in 1998 and took effect in 200, may already be out-of-date.  I have often remarked about the difficulty of applying a copyright law written for the photocopier to the Internet age; Seidenberg goes a step further by noting that even the DMCA was written for a simpler set of Internet technologies — bulletin boards and Usenet groups — and may not be able to account for the huge popularity of user generated content that is now born on the Internet.  Seidenberg’s neat summary and comparison of two court cases dealing with UGC — the as-yet-undecided case of Viacom v. YouTube and a less well-publicized decision involving Veoh Networks — explains the interplay of laws and the uncertainty of results in this environment.

The second point that seems significant to me is the complaint sometimes heard about the DMCA and the ruling in the dancing baby case that it has created too great a burden on the content companies for them to have to evaluate the possibility of fair use before they send a takedown notice.  Although I understand the argument that a business needs to streamline those processes that merely protect profits and do not generate them, it is hard to be too sympathetic when, in the higher education environment, we are called on to make many decisions about fair use every day, usually without recourse to a stable of lawyers.  The law of fair use is intentionally, and I think correctly, open-ended and flexible; it does not lend itself to streamlined or automated processes precisely so that it can remain useful as new innovations and technologies come along.  The burden of having to make individual fair use decisions is shared by users and content creators alike; it may not be efficient, but in the end the social benefit of doing things this way clearly outweigh the costs.

The last part of Seidenberg’s article addresses this general point as it discusses attempts to convince Congress to shift more of the burden for copyright enforcement off of the big content companies.  If they have not yet been successful in getting courts to force Internet providers like YouTube to police copyright for them, legislative efforts like the PRO-IP act to get the government more involved protecting these private rights have born more fruit.  Whether taxpayer-funded enforcement of private copyrights will ultimately squelch the growth of user generated content is an open question, and it is one that may play a huge role in defining the future for creativity and innovation.