Who pays for copyright enforcement?

From David Hansen, JD, Scholarly Communications intern at Duke University Libraries:

Kevin’s last blog post on champerty got me thinking about another ancient legal doctrine, also dimly remembered from law school, which has some application to recent copyright cases: “adverse possession.” Adverse possession is a common law doctrine, dating back over eight hundred years, that was developed to settle disputes over real property when one person had legal title to the land, but another actually possessed the property. Adverse possession works to give rights in the land to the possessor of the land if the original title holder has sufficiently failed to police and assert her rights over the property in question. Now sometimes referred to as “squatters rights,” one of the underlying purposes of the doctrine is to force landowners with legal title to vigorously assert and defend their own property rights.

The doctrine illustrates a default rule of our legal system—that owners of private property should pay to police and enforce their own rights. There are, of course, exceptions (for example, publicly funded district attorneys are responsible for prosecuting crimes like robbery or “criminal trespass”), but publicly-funded enforcement has traditionally been reserved for the detection and prosecution of invasions that rise to the level of a crime. Absent an external public interest in enforcement, the assumption has been that exclusive rights in property—real property, personal property, or intellectual property—are only worth legal maintenance to the extent that the rights holder will bear the costs of enforcement.

Despite this assumption, copyright owners and their policymaker-supporters have recently made overtures toward public enforcement of these private rights. Just surveying the news of the last week we see enforcement costs borne by foreign “enforcement units” like the one operated by the Recording Industry Association of New Zealand and funded by the United States government, and by Canadian Mounties who are asked to police Montreal theaters for camcorder-toting moviegoers. Efforts like these are in line with more sweeping proposals, like the Anti-Counterfeiting Trade Agreement (ACTA), an international agreement which has been criticized on this blog for shifting “lots of the costs of enforcing IP rights from the private industries that hold those rights to government agencies, funded by taxpayers.”

A more subtle brand of cost-shifting occurs, however, when those who assert copyright infringement attempt to shift liability from one private party to another. For example, CNET, owner of domain download.com, is being sued for providing access to peer-to-peer file sharing software such as LimeWire. Rather (or in addition to) holding liable users that host the infringing content themselves (a costly proposition because of the sheer number of users), or even LimeWire itself, rights holders are asking that CNET be held responsible because it hosted the software that enabled the infringing activity. The question of CNET’s liability is really one of secondary liability—focusing on the issue of either how much control CNET has over users (a key issue in deciding if there is “vicarious liability” on the part of CNET), or whether CNET took steps that were intended to induce or “foster infringement” (an important part of a “contributory infringement” finding). By shifting liability to CNET, it and others like it may be forced to carefully monitor the types of software it offers and the potential applications of that software by users. The safe harbor of Sony Corp. of America v. Universal City Studios, Inc. (holding that the mere sale of VCRs and other copying devices is not sufficient grounds for contributory liability so long as those devices have other substantial non-infringing uses) would indicate that it is not the responsibility of CNET to monitor user-application of the software it hosts. But cases that backtrack from that safe harbor—notably the case against Grokster (a peer-to-peer network) and the recent suit by Viacomm against YouTube (essentially alleging that the DMCA requires YouTube to actively monitor the copyright status of user-posted content)—have blurred the line of responsibility for vicarious or contributory liability.

In the university context the question of control or inducement becomes more difficult. For example, how much control can, or should, Georgia State University administrators exercise over the materials used for particular faculty member’s course offerings? The liability of GSU in the current case has come to rest on whether GSU administrators and librarians have properly implemented the university’s copyright policy with respect to its e-reserve offerings, a system over which the university certainly has some degree of control. But what if copyright decisions are made directly by faculty on entirely faculty-administered systems? If materials are posted on faculty-administered pages, does the university have a responsibility to police those sites for infringing content? Should it? Perhaps faculty members have an academic-freedom interest in making their own fair use determinations. Fair use, after all, has a knotty but ultimately complimentary relationship with the First Amendment right of free speech.

In the past, academic publishers quickly named universities and administrators as defendants in infringement suits, but publishers have been hesitant to name individual faculty members. Presumably this tactic is to avoid biting the hand that feeds them (what are academic publishers without the academics who write for them?), but placing sole responsibility on the university shifts, or at least hides, the costs of these suits. Faculty members remain largely unaware that the publishers to which they submit their work (in this case, Cambridge University Press, Oxford University Press, and Sage) are attacking the assertion of educational fair use of those very same works on college campuses.

A good litigation strategy would seem to dictate suing defendants who have deep pockets and who are unlikely to retaliate in a meaningful way. Plaintiffs may seek to place responsibility on the YouTubes and CNETs of the world because the alleged infringers—the users who are actually using peer-to-peer software—are too expensive or too difficult to pursue individually. Publishers, however, may seek to place sole responsibility on universities and their administrators because the other defendants—faculty members—are too dangerous to name in a lawsuit. While universities should obviously bear the risks and benefits of their own faculty members, we should be careful to monitor the extension of that responsibility to areas that truly do shift or hide the costs of enforcement.

A nightmare scenario for higher education

In anticipation of the trial starting on Monday in the copyright infringement case brought against Georgia State University by Cambridge, Oxford and Sage publishers, and partially financed by the Copyright Clearance Center, there has been a flurry of motions, mostly relating to the admission of various pieces of evidence.  But amongst that deluge of paper is a truly frightening document, the proposed injunction that the plaintiffs are requesting if they win the case.  I have always known that there was a lot a stake for higher education in this case, but the injunction the publishers want would be a nightmare scenario beyond even my most pessimistic imaginings.

First, if this injunction were adopted as proposed, it would enjoin everyone at Georgia State, including students, who would seem to largely lose their fair use rights by virtue of enrolling at GSU.  It would apply to e-reserves, faculty web pages and any learning management systems in use or adopted in the future.  It would make GSU responsible for every conceivable act of copying that took place on their campus.  In short, administrators at Georgia State would have to look over the shoulders of each faculty member whenever they uploaded course material to an LMS or any other web page.  Arguably, they would have to monitor student copying at copiers provided in their libraries, since GSU would be enjoined from “encouraging or facilitating” any copying, beyond a limit of about 4 pages, that was done  without permission.

Not only would GSU have to micromanage each faculty member’s choices about how to teach every class, they would also have to give the plaintiff publishers access to all of the computer systems on campus so that they too could examine each professor’s decisions.

I can only imagine the angry reaction of faculty members if this requirement were actually imposed on our campuses; they might finally rebel against the exploitation they suffer from these “academic” publishers.  In any case the order quite literally asks the impossible and was apparently written by people with no functional knowledge of how higher education actually works.  The administrative costs alone would be staggering, not to mention the permission fees.

Permission fees are the real purpose here, of course.  The goal is to drive more and more money to the Copyright Clearance Center, which is the only source of permission mentioned by name in the draft injunction.  The way the injunction would accomplish this would be by entirely eliminating fair use for Georgia State.

There is absolutely no mention of fair use or section 107 of the copyright law in this proposed order.  Instead, the coping that would be permitted without permission is entirely defined by the bright line rules of the 1976 Guidelines for Classroom Copying (see pp 68-70).  Actually, it is the guidelines PLUS an additional requirement that is being sought as the sole standard for non-permissive copying.

The guidelines’ rule on brevity would entirely circumscribe such copying if this injunction were granted.  That rule permits a copy of only 10% or 1000 words of a prose work, which ever is less.  Many schools that adopt 10% as a fair use standard will be shocked to find that, under this definition, that is often still too much to be acceptable, since the 1000 word limit will usually take over.

Also, the rule about cumulative effect — a limit on the total number of excerpts that can be made — would be enforced across the entire institution.  Two classes could not use the same work without paying permission, and Georgia State would be responsible for making sure that no system across its campus was providing access to any more than two excerpts (for the whole campus and of no more than 1000 words each) by the same author.

Added to these rules from the Guidelines is a new restriction, that no more than 10% of the total reading for any particular class could be provided through non-permissive copying.  The point of this rule is nakedly obvious.  If a campus had the temerity to decide that it was going to follow the rules strictly (since the flexibility which is the point of fair use would be gone) and make sure that all of its class readings fell within the guidelines, they still would be unable to avoid paying permission fees.  Ninety percent of each class’s reading would be required, under this absurd order, to be provided through purchased works or copies for which permission fees were paid, no matter how short the excerpts were.

Not only would the minimum safe harbor for fair use that the guidelines say they are defining become a maximum — the sum total of fair use — but that maximum would be shrunk much further by this 10%/90% rule.  The intentions of Congress in adopting fair use, including its clause about “multiple copies for classroom use,” would be mocked, gutted and discarded, at least for Georgia State.

I believe that compliance with this order, were the publishers to win their case and the Judge to adopt the proposed injunction, would be literally impossible.  For one thing, the record keeping, monitoring and reporting requirements would cost more than any institution can afford, even if they were technically possible.  Also, there is really no permission market that is broad and efficient enough to meet the demand that this order would create; the CCC might get what it paid for in underwriting the litigation if this order became the law for Georgia State, but they do not have the coverage, even with their Annual Campus License, to support this kind of regime if it were broadened to other campuses and other publishers.  Yet you can be sure that if those things happen, all of our campuses would be pressured to adopt the “Georgia State model” in order to avoid litigation.

This proposed order, in short, represents a nightmare, a true dystopia, for higher education.  We can only hope, I think, that Judge Evans is clear-sighted enough, and respectful enough of what Congress intended when it passed the 1976 Copyright Act, not to adopt this Orwellian proposal, even if she finds in favor of the plaintiffs.  No judge likes to issue an order that cannot be obeyed, and this one would be so far outside the stated policies of the United States in its copyright law that an appellate court could, and likely would, overturn it purely on those grounds.

Old law and modern lawsuits

Champerty is one of those ancient and obscure legal concepts that date from the Middle Ages and just beg, in my opinion at least, to be investigated and explicated.

The basic problem that rules against champerty address is the buying and selling of legal claims.  At it’s most egregious, champerty involves someone making a frivolous claim, usually in tort, and selling that claim to a legal speculator.  In this way the claimant gets a swift and certain profit, while the speculator steps in to gamble on a bigger return as a result of the lawsuit.  The broadest definition of champerty is simply “maintaining a lawsuit in return for a financial interest in its outcome.” (definition from Cohen & Schwarz, Champerty and Claims Trading, 11 Am. Bankr. Inst. L. Rev. 197, 197 (2003))

Over time the rules against champerty have evolved and often become subsumed into other kinds of regulation.  The rules that limit lawyers’ contingency fees are one example of the evolution of champerty prohibitions.  The underlying ethical concern, which is that courts will be clogged with poorly-justified lawsuits simply to serve external and purely financial interests, spans a wide range of legal fields and activities.

I ran across the word, dimly remembered from law school, in a motion to dismiss one of the lawsuits brought by Righthaven over Internet reposting of news articles.  It has come out recently that Righthaven appears not to hold any of the rights under copyright in some of these cases, having purchased nothing but the “right” to bring a lawsuit.  Defendants have leapt at this evidence, claiming the the cases should be dismissed as mere “sham and champerty.”  But it is not those copyright cases that I began to consider in the context of champerty; it is the lawsuit brought by publishers against Georgia State University over electronic reserves, which is being partially funded by the Copyright Clearance Center.

I want to be clear that this arrangement, where the Copyright Clearance Center bears some of the costs of prosecuting the litigation, is not precisely the kind of thing champerty rules were intended to prevent.  In the GSU case, the rights holders are themselves the plaintiffs, and, since no damages are being sought, there can be no suggestion that CCC has purchased a stake in any recovery.

Nevertheless, and in spite of its own protestations, the CCC does have a financial stake in the outcome of the suit, which goes to trial in a few days.  A ruling that narrows fair use even further than the interpretation of it that GSU and many other universities are already using would drive many more transactions to the CCC and greatly increase their revenue.  Essentially, CCC is financing an aggressive marketing strategy by paying 50% of the litigation costs in this case.  They did not buy a stake, but they certainly have a stake.

When the Association of Research Libraries wrote a letter to the CCC expressing disappointment over the decision to help underwrite the lawsuit, CCC’s reply emphasized that no damages were being sought and maintained that their participation had the simple goal of “clarifying” fair use.  This strikes me as disingenuous.  There are more efficient ways to clarify fair use than litigation, and the CCC has a definite financial interest in the case even absent any request for damages.  CCC’s aim here is not to clarify fair use but to narrow it dramatically, to their direct and immediate profit.

As I have said, this is not champerty per se.  But it does raise some of the same ethical issues that under gird the old prohibitions.  Suppose, for example, that one of the reasons that this case has not settled is that the plaintiffs are not subject to the normal financial concerns that accompany litigation.  With an interested and supportive “angel” absorbing half the costs, it may be a smart gamble for plaintiffs to move forward even with a weak case rather than negotiate and settle on a reasonable “clarification” of fair use.

When, in the footnote to an earlier ruling, Judge Orinda Evans revealed (to many of us, for the first time) this financial arrangement between the plaintiffs and the CCC, it seemed the the judge was somewhat uncomfortable with the situation.  The more I think about, the more I believe she should be.

Housekeeping

I will be out of the country for a three week trip to Turkey starting May 17.  I would not ordinarily impose this fact on my readers — although I am very excited about it — but for the fact that my departure date is May 17.  As many of you know, the copyright infringement case against Georgia State University over electronic reserves is scheduled to go to trial on May 16.  The coincidence of these dates means that this blog will not be the best place to get hot news about that case; indeed, many of you will probably know of the result well before I do.

For those seeking up-to-date information about that case and other copyright developments, I recommend the ARL policy blog and the blog from the Copyright Advisory Office at Columbia University.  Many others, I hope, will also report on important developments, including the higher education press.

I plan to post one more comment about the GSU case in the coming days, then this space will be inactive until at least the second week of June.

Copyright gets under your skin

I was considering a post about copyright in tattoos even before I read about a recent case.  This blog post raises some interesting questions about who owns the rights in a tattoo, and trying to answer them seemed like an interesting exercise; a chance, at least, to review some basic concepts.

Then I read these stories about a threatened lawsuit over an upcoming movie and realized that the topic was more current than I had suspected.  The case involves an apparent imitation of Mike Tyson’s famous facial tattoo being used in the movie “Hangover II,” and a lawsuit from the tattoo artist to enjoin release of the film.  As one of the bloggers about the case says, it seems to just be an attempt to get a settlement out of Warner Bros. — perhaps a deserved settlement, one might add — but it reminds us that these are not trivial issues and are worth a few minutes of our attention.

The Tyson case, and the lawsuit over a tattoo on the arm of basketball player Rasheed Wallace back in 2005, raise the issue of who owns the rights in skin ink.  The answer is a little bit complicated, since rights vest when original work is fixed in tangible form.  Actually applying the tattoo is certainly fixation in tangible form, so the actual tattoo artist will often hold the rights.  But sometimes a design may be done by someone else, often the “tattooee” him or her self, prior to the actual tattooing.  If an original design is done on paper, then copied on to skin, the rights are likely held by the designer.  But simply providing the surface on which the tattoo is applied is not sufficient for the person who wears it to claim rights in a tattoo.

One possibility about ownership that should be accounted for is work for hire.  Here it is important to remember that simply paying for something does not make it work for hire.  If a tattoo artist is a regular employee of a shop, the tattoo design may belong to the shop owner as a work for hire.  But it will almost never belong to the person being tattooed just because they paid for it; an explicit agreement would be necessary for that.

Once we understand that the copyright in a tattoo is not always, or even usually, held by the wearer, the issue of remedies arises.  The two cases involving athletes and their tattoos being shown on TV or in the movies seem straightforward as to remedies — the artists want to be paid for uses of their work.  In the Wallace case there was a settlement that presumably gave the artist some money, and it seems likely that the same thing will happen regarding Tyson’s facial tattoo.  but it is important to realize that some copyright infringement remedies — such a destruction or confiscation of the offending item — will simply not be available to a rights holder even if the infringement is especially blatant.  If the application of the law to this area of artist production seems bizarre, we ought to remember that courts usually have some measure of common sense, and realizing that some of the usual remedies for infringement will simply not be available goes a long way to reducing the sense of outrage.

Finally, that first blog post I linked to above raises the question of whether or not a person who has a tattoo in which the rights are held by someone else would be able (voluntarily!) to have the tattoo removed.  The issue here is artists’ moral right to not have their work destroyed without their consent.  In the United States these rights are conferred by section 106(A) of the Copyright Act only on a limited group of visual artists, but there is no obvious reason why a tattoo artist would not be included in that group.  Here again it is important to think about the kind of remedies a court might resort to.  There is a specific provision in U.S. law that limits the right of a visual artist to prevent the removal of a work of art that is incorporated into a building, so that where a building was being torn down, for example, the remedies for the artist are limited such that they cannot force the building to remain standing.  One would hope that our courts would take this example and analogize it to the case where a tattoo wearer wants to be rid of a tattoo; it would seem inhumane to order a person to continue to wear a tattoo against their will, just as it would be to order someone to have a tattoo removed because of alleged infringement.

In the end, there is no reason in principle that ordinary copyright provisions should not apply to tattoos.  But because tattoos are works of art on human flesh, courts would be compelled to take the medium into account in order to avoid offensive and inhumane results.  The way to do this is to limit the remedies available to a tattoo artist whose work is infringed.  While money damages could still be appropriate, as in the Tyson and Wallace cases, other types of remedies that might fundamentally threaten personal autonomy and well-being simply should never be considered.

On the fair use rollarcoaster

This is one of those weeks with lots of ups and downs.  Recent decisions and issues about fair use take us on a roller coaster ride, I am afraid, as we find both good news and bad in the reports.

The case brought by Righthaven in which the judge indicated that he would find that the re-posting of an entire newspaper article constituted fair use has now resulted in a formal opinion; there is a story, with a link to the full decision, here.  As I wrote earlier about this case, the principal reason for finding fair use seems to have been that the plaintiff, Righthaven, was so unsympathetic.  As expected, the decision puts considerable weight on the fact that Righthaven was using the copyright only to bring, or threaten, lawsuits.  It is unusual for a decision about fair use to focus so much on the plaintiff’s behavior, rather than that of the defendant, but it is good to see a concern for the “chilling effect” that copyright infringement claims can have being acknowledged by the court.

What is more gratifying about this ruling, however, is its attention to the purpose of copyright law, and its attempt to place copyright in that context.   Judge James Mahan finds in this case that denying fair use and upholding Righthaven’s lawsuit would do “nothing to promote the Copyright Act’s purpose of promoting artistic creation.”  Exactly.  And if more judges started with why we have a copyright law in the first place, fair use would get a better hearing.

To see a negative example of how important it is to consider the reasons behind copyright protection, we need only look at the decision denying fair use for the “appropriation art” of Richard Prince and granting summary judgement to photographer Patrick Cariou on his infringement claim.  This decision rejects the idea that appropriation art can be fair use, and it threatens to have an especially chilling effect on galleries, since it holds that Prince’s gallery shares liability for not having ensured that Prince’s work was non-infringing before offering it for sale.  There are reports about this frightening decision here, here and here.  As the last of these stories notes prominently, this ruling includes the order that the offending artwork be destroyed!  Here, I think, we can see why over-enforcement of copyright can pose a real threat to cultural productivity and why it is so important to look at each case through the prism of the original intent behind the law.

The Prince/Cariou decision was made by Judge Deborah Batts of the Southern District of New York.  I have criticized Judge Batts before for her willingness to suppress cultural productions, including the sequel to Catcher in the Rye, in the name of an exaggerated view of the control that copyright grants.  Judge Batts, I believe, is much too willing to simply outlaw certain imaginative creations when she thinks they are too dependent on a previous work.  She does not, in my opinion, consider carefully enough the overall purpose of protection, its limitations, which stem from that purpose, or the possibility of less draconian remedies for genuine infringement.

One reason for this problem may be an excessively restricted view of the role of “transformation” in considering fair use.  The term, of course, is not used in the fair use provision of the law, but it was championed in a 1990 law review article by Pierre Laval and used by the Supreme Court in the “Oh Pretty Woman” case.  That case emphasized that parody was a transformative use, and Judge Batts seems fixated on that single kind of transformation, dismissing fair use in both the Salinger and the Prince cases because she does not see enough parody.  In the one case I can find where Judge Batts did rule in favor of fair use, reported here, the parodic element was clear.  But Judge Leval clearly did not intend his proposed “fair use standard” to be so narrowly cabined in, and his avowed intent was to find an analysis that took account of the intent of the law to support artistic creativity.  If we use that purpose as a guide, the case against literary sequels and artistic appropriations cannot possibly be as clear-cut as Judge Batts thinks it is.

The last stop on this fair use roller-coaster is New Zealand, where a court is considering an infringement claim brought over a phone book.  I mention the case because it shows how rules that we take for granted in the U.S. are not necessarily shared in other jurisdictions.  Our Supreme Court has held that the white pages of a phone book, at least, are not creative enough for protection, and explicitly rejected the “sweat of the brow” theory, which holds that copyright protection may reward hard work, even when no creativity is involved.  But protection for sweat of the brow is common in Britain, and it underlies the sui generis database protection which is the law in the European Community.  So now a New Zealand court is facing a choice: uphold a copyright based on the idea that labor alone should earn protection, or consider the possibility that the role of copyright should be limited to serving as an incentive for creativity.  It is this latter view that is supposed to be the law in the U.S., and we would be better served if our own courts kept it in mind, regardless of what the Kiwis decide.

Double talk

For almost two years now a small group of lawyers and repository managers in the U.S. have been discussing and drafting model language that libraries can use to insert in vendor contracts with publishers that will ensure the self-archiving rights of faculty at the specific institution who publish in the journals that are part of the licensed collection.  The model language, and a considerable amount of background information can be found on this blog.  A similar effort has been underway at JISC, the Joint Information Services Committee in the U.K., for which information can be found here.

Obviously these efforts have struck a nerve, because yesterday the International Association of Scientific, Technical and Medical Publishers issued a statement opposing these efforts.  The statement is a model of misdirection — affirming, in the best tradition of political double speak, exactly the values they think their opponents hold while trying to claim that it is merely the means, not the goal, that they oppose.  It is worth taking a close look at this statement.

The STM statement makes four basic points, as follows:

  1. “Conflating” authors rights with institutional content licenses would add complexity and uncertainty to the process.
  2. Publishers are already doing well in terms of responsiveness to authors and in disseminating the results of research.
  3. Scholars “value fora that provide comprehensive coverage of a discipline,” while institutions are pushing repositories in order to enhance their own reputations.
  4. The impact of institutional repositories should be the subject of objective research and assessment.

The first of these arguments is really interesting, since it is publishers own policies that have driven institutions to adopt this strategy.  Publishers often tell individual authors that they cannot accept authors’ rights addenda to individual publishing contracts because they need consistent agreements.  Yet they have never been concerned that libraries must negotiate different agreements with each publisher when they are in their vendor roles.  Now suddenly they want to avoid complexity, but only if it will serve to shut the other avenue toward authors’ rights.  Can we expect a new willingness to accommodate individual authors who seek to self-archive?  I don’t think so, especially after working with an author this week whose request to shorten the 18 month embargo imposed on self-archiving by his publisher was turned down flat.

This experience, and countless ones like it, convince me that the second point is simply not true.  Responsiveness to author needs tend to stop at precisely the point where the author wants to take advantage of the new opportunities offer by the digital environment to increase his or her impact on her field.  Impact on the field is a collective goal for publishers, but it comes right behind maximizing profit, and it does not including helping individual authors in any way that is perceived to threaten those profits.

The third point is a rather disingenuous attempt to drive a wedge between authors and the repositories on their campus, by characterizing the motives of each side so that they seem divergent.  The use of the term “institution-centric repositories,” which seemed to have been coined specially for this statement, is indicative of the desire to put authors and their institutions at odds.  In fact, authors really do want maximum impact for their work, and institutions are not just seeking a “showcase” with their repositories.  When my institution adopted an open access policy, in fact, the most compelling argument for both the faculty council and the administration turned out to be “knowledge in the service of society,” which is one of Duke’s overarching strategic emphases.  Both groups recognized that traditional toll-access publication was not serving this shared goal very well.

Finally, the impact of open access repositories has been subject to a great deal of research already.  Most of it has supported the values that are behind the effort, and these publishers don’t like such conclusions.  Thus the implication that they are the only ones capable of carrying out “objective” research and the reference to a project which is being lead by the STM Association itself.

All in all, this statement provides a model of partisan double speak, but it does little to forward the conversation.  Licensing negotiations are one of the few places where institutions wield real power, the power of the purse, in their relationship with publishers.  It is, therefore, a very appropriate venue to pursue the goals that are shared between faculty authors and their institutions.  Such negotiations may be complex, but they always have been.  What is new is that institutions are beginning to stand up for their own shared values.

Getting the whole picture

There has been a lot of attention paid to YouTube’s announcement of its “Copyright School,” which those accused of infringement will be forced to attend online.  YouTube, of course, is trying to fend off more litigation, but that should not be an excuse for misrepresenting copyright law, as the new video that is part of the “school” does.

The video features animated characters who are identified as the “Happy Tree Friends.”  The focus of the video is on Russell, who is dressed as a pirate from the beginning of the video.  This is one of the favorite themes of the content industry, and YouTube is clearly simply doing what they are told to do in designing their “school” this way.  We have written before about why the pirate analogy is legally flawed.  But it is also pretty stupid to use it in this context, since studies have indicated that it does not have the desired effect on the target audience, who think of pirates, at least as portrayed here, as rather romantic and exciting.  Perhaps the myopic executives in the content industries, who are obviously calling the tune for YouTube, think this is a devastating critique, but the users of YouTube probably do not.

Other flaws are equally evident.  The video threatens users with a “three-strikes” policy where three accusations of infringement can get a user “banned for life.”  This is entirely a voluntary policy by YouTube, since attempts to write it in to US law have so far not succeeded.  The problem, of course, is that there are so many inaccurate accusations of infringement, and a three-strikes policy completely avoids the due process that is supposed to be afforded to those accused of the tort of copyright infringement.  Three strikes works as if an accusation is the same as a judgment of guilt, which it decidedly is not.

If this were not enough to show that YouTube is uninterested in being fair or accurate, their appalling treatment of fair use clinches the matter.  Fair use is mentioned in a quick discussion of mash-ups, but the description of fair use is done in a sped-up voice intended to convey that this is legalese which the viewer cannot possibly understand.  The clear message is that fair use is too complicated for ordinary users to even consider.  The Russell character is literally crushed by the weight of the fair use screen which, interestingly, seems to be an industry written text, not the actual text of section 107 of the copyright law.  It ends by recommending that one consult a lawyer whenever there is doubt.  Since fair use is designed to be a balancing test rather than a bright-line rule, there is always an element of doubt, so this qualification swallows the rule.  Case closed on fair use.

The video also discusses the notice and takedown provisions of the law.  What is interesting is that there is no mention of the potential misuse of takedown notices, which is, in fact, a substantial problem.  The discussion of misuse takes place only in regard to the counter-notification process, which users can employ if their work is taken down wrongfully.  Here there is a stern warning against misuse, although there is little evidence that this part of the law is regularly abused, and the viewer is left with the idea that counter-notification is too risky to be used.  Just do what the content owners tell you and be thankful you are not in jail.

If YouTube really wanted to present a balanced view of copyright, at the very least they should balance the Happy Tree Friends travesty with this humorous video that more accurately describes the use of the counter notification process to challenge a wrongful takedown notice.

Should any reminder that the takedown process can be abused, and that the counter-notification provisions are a necessary part of copyright law, be needed, this blog post about how some doctors abuse the process to get medical websites to remove critical evaluations provides it.  What is interesting is that the weapons of choice against web criticism of specific doctors are copyright claims, rather than defamation law.  If the criticism that is targeted is genuinely untrue, libel law seems like the appropriate way to fight it.  But it is so much easier to send a copyright infringement takedown notice, and the use of the counter-notification process is so sporadic, that this part of copyright provides a shortcut to silencing criticism that avoids having to prove that what was said was untrue or caused harm.

Because copyright infringement claims are so easy to abuse in the service of suppressing protected speech, it is truly appalling that YouTube, which many think of as a tool to empower free expression, has chosen to present such a one-sided and slanted picture of the law.

Update – if you just can’t get enough really bad copyright videos, check out this copyright PSA, apparently created by a teacher using her elementary students.  Not only does it get the law wrong, but it is genuinely creepy as the children chant dubious answers to copyright questions in unison.

Retractions and the risk of moral panic

Several people sent me a link to this story from the Chronicle of Higher Education reporting on a study that finds that biomedical researchers continue to cite and rely on published articles even after the papers have been retracted.  My initial reaction was what I presume it was supposed to be – “Gee, that’s terrible.”  The conclusion that the article attributes to the study’s author is that, at worst, some researchers cite articles they have not read, and that, at least, researchers are getting to papers through informal routes that bypass the “official” websites where retractions are generally noted.

This article, however, prompted me to remember an earlier blog post and to explore a web site dedicated to publicizing retractions.  The result is that I want to qualify the potential for a “moral panic” based on this study in two ways.

The first is to remind us all that the Internet is not to blame for the problem of bad science living on in spite of retractions.  It is certainly true that the digital environment has lead to more copies of a work circulating, and those copies can be very persistent.  But printed copies of erroneous studies were and remain much harder to change or stamp with a notice than digital ones are.  In the “old days,” a retraction would be printed several issues after the original article, where many researchers would never see it.  Indeed, it is hard to imagine that a study like the one reported by the Chronicle could even be done in that environment; in most cases it was simply impossible to know (at least for the non-specialist) if an article was citing a prior work that had been discredited.  Today more copies persist, but it is easier to disseminate news of a retraction.

The blog post I remembered about this topic was by Phil Davis on the Scholarly Kitchen blog.  In spite of the post’s unfortunate title, Davis does an excellent job of describing this problem without simply foisting the blame on the Internet and the increased availability it facilitates.  He does suggest that the tendency to cite retracted articles is exacerbated by article repositories, and I would add that that we must balance whatever potential harm there is in these repositories with the great benefits to scientific research that are offered by improved access.  More important, however, is Davis’ discussion of a potential solution to the problem, a service called CrossMark which could help address the “version” issue.

The other blog site that I explored for some insight into the retraction problem is “Retraction Watch,” which is mentioned in the Chronicle report.  What was most interesting about this site, I thought, was its sophisticated awareness of the variety of reasons for retraction and its recognition that not all retractions indicate that an article’s conclusions are unsound.

When we hear that an article has been retracted, we immediately suspect, I think, that there has been fraud, fabrication or falsification.  At the very least we suspect that the authors have discovered that their results cannot be verified or reproduced.  Often this is true, but there are other reasons for retraction as well.

One possible reason for retracting a paper is that it was sloppily presented, even if accurate.  That seems to have happened in regard to a paper by Stanford scientists that was retracted by the Journal of the American Chemical Society.  The authors agreed to the retraction, apparently, because of “inconsistencies” in the documentation and interpretation of the data, but have subsequently verified the fundamental finding that the paper reported.  And some retractions are even less grounded in fundamental scientific errors; retractions have occurred because of political pressure (such as with the conflicting studies about the effect of gun ownership on crime), or even because some people thought an article was in bad taste (Retraction Watch reports here on such a case).

What I like about Retraction Watch is that it looks seriously at the different reasons for retractions and, when they are not clearly explained, as in this retraction from the journal Cell, tries to dig deeper to discover what the flaw actually was, or was perceived to be.  This should be a model for our general reaction to retractions and the news that retracted articles continue to be cited.  We should ask the “why” question over and over while remembering that scholarly communications is a complex system with many layers; simple answers and moral condemnation in advance of specific facts are almost never helpful.

There’s more to life than copyright

It is a hard lesson for me to learn, but there are other issues related to scholarly communications besides copyright.  Today’s news has focused attention on free speech issues for academics.  Now we have talked about free speech as it is impacted by copyright, and some interesting examples of how copyright can be welded to censor disfavored speech can be found here and here.  But for a moment I want to focus on another aspect of free speech and scholarly communications on campuses.

Recently there has been a lot of interest in the scope of free speech rights for professors at public universities.  In 2006 the Supreme Court handed down a decision called Garcetti v. Cabellos which held that a public employee (a District Attorney) was not entitled to First Amendment protection for his speech related to his position.  In short, he could be fired because of things he said publicly that were related to his job.  This caused a great deal of anxiety for academics at public university, since it seemed to provide a loophole to avoid the academic freedom that is so cherished, but fuzzily defined, on our campuses.

Garcetti was followed by a number of decisions that did apply its ruling to employees of public universities, which increased the concern and brought the American Association of University Professors into the discussion.  One oddity of those decisions is that the opinion in Garcetti is itself skeptical about whether the ruling should be applied to academics.

Today comes news of a decision in the Fourth Circuit Court of Appeals, reported here and here, that reverses this trend and asserts that Garcetti should not be applied to professors.  In a dispute where a tenured associate professor claims to have been denied promotion over blog posts and newspaper columns he wrote expressing conservative, Christian-oriented viewpoints, the 4th Circuit held that such speech was protected by the First Amendment and that Garcetti did not mean that an academic could be punished for unpopular speech.

It is important to realize that this case was not decided by the ruling this week; it was remanded to District Court.  The Appeals Court held that it was improper to dismiss the case because of Garcetti and the presumption that a public university professor’s speech was not protected, but the university may still be able to prove that promotion was denied for a different, acceptable reason.  Only if the professor shows that he was actually denied promotion because of what he wrote will there be a First Amendment problem.  But I want to consider a couple of interesting (I hope) questions raised by the Appeals Court’s decision.

First, if a public university professor’s speech is protected, as we always thought before Garcetti, how about his or her right NOT to speak?  The flap going on in Wisconsin over a public records request to see the e-mails of a professor who has apparently taken a political stance unpopular with the current state government raises the issue of how far free speech should go to protect the decision to not speak, or not have one’s speech disseminate beyond those for whom it was intended.

There is a fairly long history of the Supreme Court recognizing and upholding the right not to speak based on the First Amendment.  Some of these are “ventriloquism” cases, where courts have held that the state cannot put words in someone’s mouth by requiring them to say specific words, like the Pledge of Allegiance or a motto on a license plate.  But there is also jurisprudence upholding a right to decide how to distribute one’s own speech.  In fact, in Harper & Row v. Nation Enterprises the Supreme Court argued that copyright was congruent with free speech partly because it supports the right to not speak publicly until one decided to do so.  Given the strong First Amendment rights for state-employed academics affirmed by the Fourth Circuit, finding a more complete negative right to determine if, when, and where protected personal communications are published is entirely plausible.  We shall see if that reasoning has an impact in Wisconsin.

Another point that is raised by this decision on academic free speech is who it applies to.  Does it apply only to faculty, including, presumably, librarians with faculty status?  Or could it apply to librarians and other staff as well?  One of the effects of the technological revolutions we have seen lately is that many more of us – include yours truly – are able to communicate widely and advocate for policies and legal interpretations that may be controversial.  It is interesting that the professor’s scholarship that was at issue in the 4th Circuit was in non-traditional forms like blogs and newspaper columns.  The shift in scholarly communications, and libraries’ more deep involvement in scholarly communications issues, raises the question of academic freedom protections for non-faculty and the scope of free speech rights in this newly developing dialog.

Discussions about the changing world of scholarly communications and copyright