Reading the fine print

July 27, 2010 Kevin Smith, J.D. 1 Comment

Yesterday’s announcement that the Library of Congress was designating new classes of works exempt from the anti-circumvention rules of the DMCA has generated lots of Internet buzz, especially about the exemption for those who “jailbreak” their cellular phones. The major exemption for higher education, allowing circumvention by faculty for a range of defined educational purposes, has also gotten some press, some of it excellent and some of dubious accuracy. In the latter category, unfortunately, is this piece from Inside Higher Education, which I will discuss below.

But first let’s look at the actual language of the exemption. What follows is based on the detailed description of the six exemptions given in today’s Federal Register.

First, the exemption is to permit circumvention of technological protection measures — the breaking of digital locks — for certain classes of works and for defined purposes. These rules do not change the definition of fair use; they merely specify a small group of purposes within the broader category of fair use for which circumvention is permitted.

Next, this exemption applies to lawfully made and acquired DVDs that are protected by Content Scrambling System (CSS). This application is both broader and narrower than the previous rule. It does not require that the DVD be part of a university’s library collection, much less the collection of a film or media studies library. The DVD can come from anywhere as long as it is not pirated or stolen. But it applies only to DVDs that use CSS; it does not, for example, apply to Blu-Ray discs. So a faculty member can make a compilation of clips from her own DVD library, for example, unless she collects that library in some format other than traditional DVD.

The exemption applies to three specific activities for which circumvention is necessary.

First, it applies to educational uses by college and university faculty and by college and university students of film and media studies. Notice that the category of faculty is all inclusive, but the category of students is limited. The Library of Congress determined that not all students needed this exemption; presumably they were also aware of industry fears that students would carry the permission too far if the exemption were general. Also, the application to educational uses does not include K-12 teachers, who were also determined not to need the ability to obtain high-quality clips. Presumably they are still expected to point a digital camera at a TV screen if they want a clip from a motion picture.

The other activities to which the exemption applies are documentary film-making and non-commercial videos. Presumably some of the limitations to the persons allowed to circumvent for educational purposes may be mitigated by these two defined activities. A university student who is not studying film and media studies, for example, might still want to use a film clip in a class video project and could be permitted because it is a non-commercial video.

So once we are clear about what can be used, by whom and for what purposes, it remains to ask what exactly we can now do. The answer is that we can circumvent technological protection measures in order to incorporate short portions of motion pictures into new works for the purpose of criticism and comment. Several phrases here call for explication. First, circumvention is allowed for copying short portions, not entire films. Second, this exemption applies only to motion pictures, not to other content, like video games, that may be available on DVD. Third, the clip must be used to create a new work. I was glad to see that the explanation of this phrase in the Federal Register is explicit that “new work” does include a compilation of film clips for teaching, as well as other videos in which a short clip may be subjected to criticism and comment. Finally, that purpose of criticism and comment is a required aspect of the defined activity that is permitted.

The last requirement for this exemption is a reasonable belief that circumvention is necessary to accomplish the permitted purpose. The announcement is very clear that if another method of obtaining the clip without circumvention is available and will yield a satisfactory result it should be used.

This seems like a lot of requirements, but I think that overall we have a pretty useful exemption here and one the application of which will not really be too difficult. Once we understand the four italicized phrases above, it seems that we should be able to recognize permitted instances of circumvention when we see them. Certainly this is easier to understand and apply than the exemption it replaced. But when we look back at that item from Inside Higher Ed, it is easy to see how excessive enthusiasm can still lead to misunderstanding.

For one thing, the IHE piece does not acknowledge the limitation placed on students who can take advantage of this educational purpose exemption. It may be, as I suggest above, that that limitation will be swallowed by the other permissions, but we should at least recognize the intent behind the rule. More importantly, this exemption to the DMCA’s anti-circumvention rules really has nothing to do with the dispute between UCLA and AIME or with other projects to stream entire digital videos for teaching, in spite of what IHE suggests. While such projects may or may not be justifiable, this exemption does nothing at all to change or define the boundaries of fair use; it merely carves out a portion of those uses, which the Registrar calls “classic fair use,” for which circumvention is now permitted. There may be other uses that are fair, but this exemption neither determines that question nor authorizes circumvention for those purposes.

It is what it is, and no more, but what it is is good news for higher education.

The new, improved DMCA

July 26, 2010 Kevin Smith, J.D. 2 Comments

Last week I wrote, but had not yet posted, a comment about the proposed copyright reform in Brazil and the more nuanced approach they took to anti-circumvention rules that protect technological systems intended to prevent unauthorized access. In the course of that discussion I again criticized the Library of Congress’ long delay in announcing new classes of exceptions to the US anti-circumvention provisions. I expressed the hope that, after waiting so long, they would at least get it right.

They did.

Before I had a chance to publish my post, the new exceptions were released, albeit eight months late. Also, an important appellate court opinion about the DMCA anti-circumvention rules was handed down. So now I have three points to make about the DMCA and anti-circumvention rather than just one, and taken together they constitute my first ever optimistic writing about this subject.

First, the new DMCA exceptions announced today by the Library of Congress include the broader exception for higher education that many of us asked for during the rule-making proceedings. Indeed, the language is broader than I dared hope, apparently allowing circumvention of DVDs for a broad array of purposes in higher education. Certainly all professors can now circumvent for the purpose of compiling clips for teaching, as well as for incorporating clips into larger scholarly works. Documentary film-making and non-commercial videos seem also to be able to circumvent for purposes of criticism and comment using short portions of a protected film. Indeed, this exception comes close to allowing circumvention (of one type of media) for most fair uses, although it does not quite get us to that point.

The new exceptions also include a provision to allow circumvention of e-book technological protections when necessary to enable a read aloud or screen reader functions. This exception also addresses a problem that higher education has long felt when accommodating students with a visual disability.

Second, this case out of the Fifth Circuit, involving software used to control “uninterruptable power supply” (UPS) machines, made a very clear statement that the DMCA’s protection of DRM systems “prohibit only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners…. Without showing a link between “access” and “protection” of copyrighted work, the DMCA anti-circumvention provision does not apply.” The Court quotes another circuit for the proposition that the DMCA creates no additional rights other than what the copyright law already grants; it merely provides for a different form of protecting those rights. With this language we seem to move even further down the path toward saying that anti-circumvention is not prohibited when the purpose for which access is sought would be a fair use.

Which gets me to my third point, about the proposed copyright reform in Brazil. As I said in my earlier post:

“Brazil offers an international example of how to handle anti-circumvention the right way from the start, instead of creating a draconian rule and then forcing law-abiding users to beg for limited exceptions. Brazil has introduced a balanced approach to anti-circumvention as part of its copyright reform proposal (available here, in Portuguese; see especially section 107). As Canadian copyright law professor Michael Geist explains on his blog, this proposed reform imposes penalties for circumvention of legitimate technological controls on access, just as US law does. But it also specifies that circumvention of such controls is permitted for access to public domain materials and for purposes that fall under Brazil’s ‘fair dealing’ exceptions; an obvious limitation that US law ignores. What is more, the Brazilian proposal would impose penalties equivalent to those for unauthorized circumvention on those who would hinder circumvention for these legitimate purposes.”

Now, of course, we are much closer to the same kind of sensible approach then we were just a few days ago. It is interesting to note that I mentioned in that earlier, never-published post, that the US Trade Representative would be upset at Brazil for not incorporating US-style DMCA rules. But I have just seen this news about how the USTR is backing down about harsh anti-circumvention provisions even in ACTA, the Anti-Counterfeiting Trade Agreement I have talked about before. I believe I may hear the turning of a tide.

Due process for file-sharers?

July 23, 2010 Kevin Smith, J.D.

It is fascinating to see the different reactions to the decision by District Court Judge Nancy Gertner to reduce the damages assessed against Joel Tenenbaum for sharing unauthorized digital files of music from $675,000 (or $22,500 per song) to $67,500 (or 2,250 per song). There is a relatively impartial description of the issue here on the Law Librarian blog, but other reactions have been all over the map. Some have decried the ruling as a “lose/lose situations” because Tenenbaum has said that he still cannot pay the judgment and the RIAA has announced that it will not accepted the revised judgment either. On the CNET blog the decision was called “A copyright ruling that no one can like.” The Electronic Frontier Foundation, however, does like the decision, congratulating Judge Gertner for helping to “restore sanity” to copyright damages.

These reactions beg for a close reading of the decision in order to judge for oneself if it is a disaster for copyright law or a victory over the Evil Empire, and I postponed my own comments until I had had the opportunity to make such a reading. My reaction was more muted, not to say boring, than those I had read. I have no desire to defend large-scale sharing of music or movie files without authorization, and I fear that more legitimate uses of the fair use defense will be undermined if it is raised too often in these cases. But I am glad to see the issue of whether statutory damages in a copyright case are susceptible to due process limitations teed up for appeal as cogently as Judge Gertner has done.

In her ruling, Judge Gertner explicitly states that she did not take the same legal route as was taken to reduce the damages in the other high profile file-sharing case, the equitable doctrine of remittur. Had she taken that course, there is little doubt that the RIAA would request a new trial and the same issues would be rehashed again. Instead, by ruling that the award was an unconstitutional violation of the Fifth Amendment right to due process, Gertner has forced the RIAA to appeal to a higher court, where the Constitutional issue will be squarely faced.

It is well established that punitive damages — those designed to punish and deter a defendant, and others, from repeating the actions for which they were found liable, are subject to checks imposed by the promise of due process. Basically, a defendant cannot be held liable for amounts of money that are wildly out-of-line with the harm the caused. Four million dollars for failing to disclose that a “new” car had actually been repainted is the classic example (from the BMW case the Judge discusses at length). The question has been whether this analysis can be applied even in situations, like copyright, where a range statutory damages are specified in the law and serve to cabin in the discretion of juries, who tend to get emotional when awarding punitive damages.

Judge Gertner has held that the due process concerns outlined in BMW and other cases do apply to copyright, even though there is a statutorily-mandated range for damages. She distinguishes the procedural issue — does the defendant have reasonable notice of how much his behavior may cost him — from the substantive issue of fairness. Even though the procedural due process issue is off the table in a statutory damages situation, the Judge holds that substantive due process concerns can still provide Constitutional grounds for reducing an award that is within the mandated range in specific circumstances.

One of the most interesting aspects of her decision is Judge Gertner’s exploration of the legislative history of the statutory damages provision. In both comments and actions taken by Senators Orrin Hatch and Patrick Leahy, who sponsored legislation in 2000 to increase the range of statutory damages for copyright infringement, the Judge finds evidence that they never imagined private individuals engaged in non-commercial conduct would be subject to the heaviest weight of the damages. At one point Judge Gertner writes:

Since the jury’s award in this case fell within the range set forth in section 504(c), there is identity between the damages authorized by Congress and the jury’s award. Nevertheless, it is far from clear that Congress contemplated that a damages award as extraordinarily high as the one assessed in this case would ever be imposed on an ordinary individual engaged in file-sharing without financial gain. Just because the jury’s award fell within the broad range of damages that Congress set for all copyright cases does not mean that members of Congress who approved the language of section 504(c) intended to sanction the eye-popping award imposed in this case.

There is even a remarkable passage in the ruling where the Judge recounts an incident that occurred during a hearing on the bill to raise the statutory damages ceiling in which Senator Leahy himself announced he was downloading a song as he spoke, and dismissed concerns that he could be subject to the very damages he was proposing.

Judge Gertner’s ruling is clear and well-reasoned. I confess that I find her argument compelling, since the extraordinary scope of statutory damages in copyright has a chilling effect on non-commercial and even educational uses. More clarity on when the highest level of damages should, or should not, be in play is badly needed. I cannot say for sure that the Judge got this right, but she has provided a solid record for review and an excellent basis upon which the higher courts can consider this important issue.

More protection for military faculty, or less?

July 20, 2010 Kevin Smith, J.D. 1 Comment

Section 105 of the U.S. Copyright Law tells us that there can be no copyright in works of the federal government. Almost uniquely among the nations of the world, the US government does not get to exclude others (including taxpayers) from using works created by government employees as part of their employment. There are numerous studies about the benefits of this lack of protection; one of the most interesting are these comments by Professor James Boyle in his book The Public Domain about weather data gathered by the US government. As Boyle points out, the social value of this freely-available data is much greater than any value that might be gained through copyright protection.

One group whose exclusion from copyright protection might strike us as unfair, however, is the faculty of the military academies (West Point, Annapolis, etc.) and government run War Colleges. While their colleagues at other institutions hold copyright in their scholarly works (unless an institution claims work made for hire), scholars at these schools do not. When I first read about a new bill in Congress, H.R. 5704, I innocently believed that it was an attempt to remedy that disparity, and my initial reaction was ambivalence.

I say ambivalence because my distress that material would be removed from the public domain by this legislation was balanced by a concern for fair treatment of this group of academics. Our public domain in the US has been seriously cramped and diminished by copyright legislation over the past twenty years, and removing works that are supported by taxpayers from the realm of public accessibility just doesn’t seem right. But neither does it seem right that this one group of scholars be treated differently than other university faculty members. So I was prepared to read the legislation with an open mind.

My mood turned from ambivalence to horror when I read the legislation. Inside the Trojan horse of faculty rights is hidden yet another grab for more rights and more profits by the publishing industry. Not only will this bill not benefit military faculty members, it will put them in a far worse position than other academic authors.

The problem with this bill, as with much legislation, is in the fine print. What seems like a marginal idea when you read the title of the bill is revealed as really lousy when you dig into the text. Here, the language of the legislation says that faculty at the covered institutions can secure copyright protection “only for the purpose of publication by a scholarly press or journal for which such a copyright is normally a requirement.” And then it adds the kicker — “Upon acceptance for publication of a work for which copyright protection exists by reason of subsection (a), the person holding the copyright shall transfer the copyright to the owner or publisher of the medium in which the work will be published.”

This bill is not about protecting military academy faculty. It is about allowing publishers to garner yet more profits off of work supported by US taxpayers. And it really mistreats the academic authors by requiring them to transfer copyright to publishers; the word “shall” in the sentence quoted above makes the transfer mandatory rather than voluntary. If the point had merely been to give faculty authors the same flexibility enjoyed by other scholarly authors, the work “may” would have been used. But the publishers who clearly drafted this bill don’t want to have to negotiate with these authors; they want a legal mandate to give them rights at the expense of taxpayers and the public domain.

Scholarly authors are free to negotiate the terms of publication. They do not have to transfer copyright, or they can make that transfer contingent on the retention of certain rights. In fact, the retention of various kinds of rights is extremely common today. But if this bill were passed, military faculty would not have that option; they would get copyright only for the purpose of publication and they would be required to transfer that copyright. No negotiation, no compensation or quid pro quo, just a windfall for publishers.

As this blog post about H.R. 5704 points out, this bill attempts to solve a problem that does not exist. Publishers have known for 200 years that there is no copyright in government work. Most publication agreements account for this by allowing authors to indicate that they are government employees and therefore have no copyright to transfer. But this bill, with its forced transfer of rights, would give the publishers a little more leverage over scholarship by giving them, and only them, copyright control over works previously in the public domain. It would not benefit the public or the authors of the work. The latter, indeed, would be compelled to work for publishers for free while being paid by taxpayers; they would be in a slightly worse position vis-a-vis publishers than are all other scholarly authors.

Apparently an earlier version of this bill — which for the sake of honesty should be titled “a tax on the public and on military faculty for the benefit of private publishing firms” — died in committee a few years ago. Let’s hope for a similar fate this time around.

Scholarly Publishing, Technologies

When is the price right?

July 16, 2010 Kevin Smith, J.D. 1 Comment

It is always interesting when the events of my life and the materials I am reading coincide to force my attention on a particular point. Fate, I wonder? Providence? Maybe just coincidence.

Anyway, yesterday a colleague sent a message to a e-mail list in which he recommended a specific journal article in the library science literature. I was interested and set out to obtain a copy. In this particular case, however, Duke’s impressive collection of electronic resources did not go quite far enough. Probably because we do not have an LIS school, the specific journal in question was canceled in print several years ago, and there is no electronic database in our collection that offers full-text access.

In the course of searching, however, I did discover that I could purchase a PDF of the single article directly from the journal publisher for a cost of $30.00. That price point, I must say, exceeded my felt need to read the article immediately, and I opted instead for inter-library loan.

This mundane little incident occurred while I had this article on “The iPad for Academics” (from the “Chronicle of Higher Education”) open on my desktop in anticipation of a closer reading. I have become an enthusiastic iPad user over the past two months, and this article confirms my own sense that one of the best functions of the device for academics is the ability to store, organize and comfortably read PDF journal articles.

In his editorial, however, Alex Golub goes beyond simply explaining the benefits and drawbacks of the iPad for academic use; he also comments on the changes he anticipates in scholarly publishing. He is funny and scathing about our current model for purchasing journal content — “[publishers] have pursued business models of the “purchase this enormous bundle of journals you don’t want or else our Death Star will destroy another planet of your Rebel Alliance” variety” — and he predicts that this soon may change. Golub anticipates that the iPad and the model of the apps store will lead eventually to the “retailization” of academic content. He speculates on the benefits if academic journals marketed their content directly to their ultimate consumers:

“What if you could log on to your ScienceDirect or JSTOR app and get a complete browsable list of your favorite journal articles, available for purchase for, say, 25 cents each?”

Golub asserts that “academics are ready for this development,” but I have to wonder if publishers are there yet. Certainly there is a huge gap between the 25 cent price point that Golub suggests and the $30 one that I encountered. For the disaggregated purchase model that Golub is advocating to work, some middle ground would have to be found, but I imagine that a successful price point would need to be much closer to the low end of the spectrum than to the current norm.

The truth is, I suspect, that the publishers really do not expect, or even want, to sell many articles at $30 apiece. That price is meant to discourage, not to sell; it is intended to shock academics into insisting that their libraries subscribe, not only to the individual title, but to the electronic bundle in which it is packaged. The publishing industry is built on large payments for aggregated content and shows little inclination to transition to any form of disaggregation or micro-payments. Indeed, if we could make this transition, the intermediary role of the publisher might begin to seem even less important than it does now.

In fact, I am not entirely convinced that the academy is really ready for some of the changes that disaggregation would usher in. One consequence might be the disappearance of quite a few smaller journals. Bundling keeps many journals with only niche markets in business. Disaggregation would allow such journals to take advantage of “the long tail” that Internet marketing clearly supports, but it is not at all certain that all of those small, niche journals could exploit “long tail” marketing or survive on it. Who would win and who would lose in that situation is an open question, but it is certain that there would be fairly dramatic changes in how academic content is registered, evaluated and disseminated.

I don’t want to sound like I am opposed to the idea Golub suggests for “apps based” sales of scholarly articles; it is an intriguing idea. It might well be a better alternative for the majority of scholars than our current clunky and inefficient system. But we should not underestimate the disruption to settled practices that significant change in the scholarly communications system will involve. As librarians and others advocate for those changes, we need to remain aware of the potential for such disruptions, and sensitive to the varying reactions we are likely to hear from the scholars we serve.

Scholarly Publishing

Managing discontinuities

July 12, 2010 Kevin Smith, J.D. 3 Comments

I spent a healthy portion of the long Independence Day weekend reading and chewing over a long blog post by David Rosenthal, who is a computer scientist involved with the LOCKSS digital preservation project. The post was originally his keynote address at last month’s Joint Conference on Digital Libraries, and it is packed with complex and thought-provoking analysis of the scholarly communications system.

It is very difficult to summarize Rosenthal’s arguments, but he basically explains why all three of the major players in the current scholarly communications system — publishers, libraries and archives — are caught in unsustainable business models. His analysis of the problems with publishing are fairly familiar, while his discussion of preservation and archiving was new and startling to me. His discussion of libraries is his most cursory and the least compelling of his arguments for discontinuity. Rosenthal follows his argument about these three discontinuities with a further discussion, that was largely over my head, about the technological discontinuity that may accompany these economic disruptions and create a perfect storm of opportunity.

In the course of his description of academic publishing, Rosenthal includes a fascinating discussion of how scholarship is changing, moving away from producing static content and toward dynamic services, where data, analysis and Web tools are combined and overlaid to create interactive and dynamic knowledge tools. Here is Rosenthal’s analysis of this disruption:

What scholars are going to want to publish are dynamic services, not static content, whether it be papers or data. The entire communication model we have is based on the idea that what is being communicated is static. That is the assumption behind features of the current system including copyright, peer review, archiving and many others.

Certainly from the perspective of copyright this is clearly a true statement; our legal system is struggling and largely failing to deal with overlays, mashups and other new products of the computer-assisted intellect. As such dynamic creations proliferate, it is clear that the disruption to traditional publishing, dependent as it is on a static scholarly record and the legal monopoly over that record bestowed by copyright, will also be great.

Rosenthal’s point about scholarship, it should be noted, is true both in the sciences and in the humanities. The shift toward dynamic knowledge production has moved more quickly in the sciences, but visualizations, digital text projects and GIS enhanced research are moving the humanities and social sciences in the same direction. Traditional publishing is already beginning to fail to capture important parts of the scholarly record.

Which brings me to the disruption in peer-review, which Rosenthal mentions in the quotation above but does not elaborate upon. These new kinds of dynamic scholarly productions will clearly force a change in peer-review. As more kinds of scholarship that cannot be published in traditional journals are produced, and more scholarly attention is focused on these productions, colleges and universities will have to find new ways to evaluate the quality of these works. We will no longer be able to rely on the reputation of a particular journal title or publisher imprint as a surrogate for quality, since these productions will not be associated with publishing houses.

A new system of peer-review is long overdue in any case. Dissatisfaction with the current system is ubiquitous, and the expenses claimed by commercial publishers for managing the system, which is based on volunteerism after all, are absurd. But these issues will not be the engines of change; digital knowledge production, which the current system simply cannot handle, will be. A new system, distributed using the same network technologies as the productions it evaluates, will gradually replace the outsourcing of quality judgments to commercial firms simply because it must.

There has been some attention recently to claims that the promotion and tenure process keeps scholars loyal to traditional modes of publication. Such claims must be seen to be based on a very unstable foundation, because the same scholars who are surveyed to reach such conclusions are also the ones experimenting with new modes of teaching, research and scholarship. It is these scholars, not libraries and their budgetary worries, that are driving the changes that should really worry those who make their livings from the traditional publishing system.

Google books, orphan works and academic values

July 6, 2010 Kevin Smith, J.D. 3 Comments

I have long been impressed by the well-reasoned and articulate way in which Pamela Samuelson expresses her opposition to the Google Books Settlement. In the current issue of “Against the Grain,” a newsletter-style publication for librarians, publishers and vendors, Samuelson’s is, to my mind, the most persuasive of six short essays discussing the settlement. Unfortunately, there is no link available, since the current issue of “Against the Grain” is only available online for subscribers (which strikes me as pretty ironic). Nevertheless, lots of Samuelson’s writing on the settlement can be found linked to this page.

I want to make two points about her ATG essay.

First, I was struck by her remarks about the relationship between the GBS and potential solutions to the orphan works problem. Google, and at least one of the other ATG essayists, tout the settlement as an incentive for Congress to solve the persistent problem of making orphan works more usable. But as Samuelson points out, the Google settlement approach really hearkens back to a solution for orphan works — the creation of an escrow account to compensate owners who appear after the use in question has already been undertaken — that was considered and rejected some while ago.

The Library of Congress considered such an escrow model when it recommended an orphan works solution to Congress and decided against it. One obvious reason is that it establishes a financial barrier to using orphan works; such a barrier might reduce the problem of a “chilling effect” on such usage based on fear of litigation, but it would establish a new hurdle. Congressional proposals have instead followed the Library of Congress’ recommendation and focused, much more sensibly, in my opinion, on liability rules.

That Google thinks that an escrow model might pave the way for a full-blown orphan works solution suggests how completely in the thrall of commercial publishers they became once they abandoned the idea of defending fair use in court. They now have no place to go but toward subservience.

The second point I want to make based on Samuelson’s piece builds on her complaint that her objections to the settlement should not be addressed piecemeal, as Google has tried to do, but should be seen as reflecting a fundamental conflict between the GBS and the “cultural ecology of knowledge in academic communities.”I think she is right, and I particularly like her characterization of the system we tend to call scholarly communications. That system embodies a unique set of practices, values and incentives that are quite different from those ensconced in our traditional publication system. Indeed, the academic ecosystem is ill-served by an emphasis on the commercial value of knowledge and the subsequent drive to enforce an artificial scarcity on that knowledge. As Samuelson says, the academic ecosystem will be impaired by the Google settlement much more than it will be aided by the commercialization of out-of-print works.

I want to carry this point about an ecosystem a little further, and tie it to a theme I have written about before. Once we recognize a unique academic culture and business model for knowledge, that recognition should be carried over into the analysis of fair use in the academic environment. The second fair use factor, about the nature of the original work, is the obvious place to recognize why copyright works so poorly for academics, even if we concede that it still functions acceptably for Britney Spears. The Google settlement is clearly too sweeping and inclusive for this point to have a significant impact on it’s construction, although Samuelson is persuasive in arguing that it shows that the classes in this class action lawsuit are not not truly representative. But in situations where mostly academic works are at issue, like in the lawsuit against Georgia State University, courts should use the second fair use factor to explore the prevailing knowledge ecosystem in a comprehensive way. Such an examination of the scholarly communications system would result, inevitably, in a broader scope for fair use of academic works than might be available for works that are born and live out their useful lives (and then some!) in a commercial environment.

Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing, User Generated Content

Pirate Marketing?

June 24, 2010 Kevin Smith, J.D. 1 Comment

Let me start with a confession; I have never seen the TV show Glee. But lately I have heard a lot about it, from the odd perspective of copyright law. In this blog post by Christina Mulligan, the copyright consequences of practices that are taken for granted in Glee are tallied up. Apparently the cover performances, music videos and remixes could result in millions of dollars of liability if done by real high school musicians.

As Mulligan points out, there is no attention to copyright issues as these teenage performers go about making their music. They “see so little wrong with this behavior that the word ‘copyright’ is never even uttered.” In this way, Glee is a telling illustration of where we are as a culture; what a small group of entertainment industry executives would insist is stealing is everyday practice for many real-life consumers and performers. Copyright only really works to protect the big name writers and performers; for so many lesser-known musicians and for millions of consumers it is merely a hindrance or, perhaps even worse, a non-issue.

It should be noted that Mulligan does not consider the possibility that fair use might actually support her contention that “remixing isn’t stealing,” even if industry lawyers would disagree. But the larger question is really whether copyright is doomed to irrelevance in the remix culture. Is all lost for those who believe that copyright has some important function (however defined) in incentivizing new creation? If so, is what we gain by the demise of copyright compliance greater than what we lose?

Perhaps there is a middle ground, as illustrated by this remarkable letter written by media consultant Brian O’Leary to incoming Author’s Guild president Scott Turow. O’Leary cites the research done by his own organization, Magellan Media, which found “an apparent correlation between piracy and a subsequent growth in paid sales.” O’Leary is not, I don’t think, suggesting that the content industry should encourage piracy, even if such a thing were possible. But he does suggest that it is counterproductive to fight piracy too aggressively, since “discovery, even using a pirated file, may lead to more sales.” In short, the natural tendency of the kids from Glee may not be a death knell for the content industries, but an opportunity to refine their business models and consider how to maximize discoverability while still offering added value that will lead to sales. I was particularly struck by one specific warning that O’Leary offers, that publishers should not undermine discovery (and frustrate consumers) by delaying the release of e-book versions in order to prop up print sales; the e-books, even when distributed without authorization, may themselves support print.

In all this I think there are two lessons for those of us interested in copyright and, especially, in scholarly communications.

In regard to copyright, these two very different communications reinforce the point that the terms “piracy” and “theft” are much too blunt instruments for this discussion. Piracy has a long history in intellectual property, but it should be reserved for large-scale commercial interference in the marketplace. The attitude toward remixing and other non-commercial, personal uses of media needs a different term that takes account both of the ubiquity of such uses and their potential. How about “opportunity?”

For academics, the important message is that there are lots of venues for distributing our work and the most important criteria should be discoverability. As the original rights holders in scholarly works, faculty authors do not have the same concerns about so-called piracy that the movie and music industry has, for example. We are free, as long as we retain our rights, to distribute our work in whatever ways lead to maximum access, and we can manage our copyrights for that purpose. With improved discovery, as O’Leary’s research suggests, comes greater impact, and that should put a “gleeful” smile on the faces of scholarly authors.

Hospitals in a Plague and the Unkindest Cut

June 21, 2010 Kevin Smith, J.D.

By Will Cross

If you follow libraries and scholarly communications you’ve probably seen this phrase pop up online recently: “cutting libraries in a recession is like cutting hospitals in a plague.” Eleanor Crumblehulme’s pithy tweet has gone viral and launched a minor publicity campaign that is making the rounds online and in libraries. The comparison is timely, of course, because libraries across the nation are experiencing historical cuts in funding, or even being closed down due to the harsh economic conditions.

It has also caught on because it expresses a central truth: in times of economic crisis the library takes on an increasingly vital role supporting individuals and society. Libraries always serve as what Andrew Carnegie called the “cradle of democracy” by providing free access to information and entertainment as well as social spaces for public groups to gather, discuss ideas, and plan activities. Libraries also serve as the front lines of support for job-seekers by offering resources for job-hunting and instruction on technical skills and professional development. All of these needs are felt especially deeply in bad economic times.

Beyond their role as “the people’s university” libraries also play a second-level role in bad economic times as drivers of innovation as recently discussed in a series of articles in Harvard magazine. By storing, cataloging and providing access, and help with searching, libraries enable the innovations in research and technology that drive the economy. In this sense cutting libraries could also be seen as akin to cutting laboratories seeking a cure to the plague.

Most interesting to me, however, is the way that libraries themselves are reacting to the pressures of the current economic crisis by reexamining their own policies in light of changed circumstances. This can be seen starkly in the University of California system where two major cases have arisen that may alter the existing landscape of copyright and licensing in higher education.

The first is the well-publicized decision by UCLA to continue to stream videos despite threats from content owners. The second is the UC system’s decision this week to boycott the publisher Nature’s journals in response to a proposed 400% increase in subscription costs, a move that UC professors so far seem to be supporting. In each case these institutions rejected prevailing norms of copyright and licensing, based at least in part on the significant financial cost the established system would have placed on a state budget that is already in crisis.

One of the greatest impediments to changing scholarly communication practices is the inherent conservatism and risk-averse nature of large institutions. Where the law is unclear or a journal is extremely popular libraries often feel they have no choice but to grit their teeth and pay fees that are unreasonable or may not be required by the law. But tough economic times may change the calculus, pushing libraries towards new practices that might otherwise have seemed too risky.

Particularly when budgets are already stretched thin and universities are pressured by the government to use student fees to subsidize content-owners more libraries may follow the UC system in reopening the discussion about what fees are reasonable and how aggressively to exercise their rights as nonprofit, educational institutions protected by specific exceptions in the copyright law.

Following up on Kevin’s discussion of “opportunity” in last week’s post, it appears that these economic pressures may create a different sort of opportunity for libraries to escape economic systems and legal assumptions that limit their ability to lift up the disadvantaged and drive innovation. As in Shakespeare’s Julius Caesar, this “unkindest cut” may upset the system but may also liberate us from a system that is already overreaching its proper powers.

Will Cross, M.A., J.D., is an intern in the Scholarly Communications Office at Duke. He also serves as the Digital Copyright Specialist for the UNC University Libraries and is currently pursuing a Master of Science in Library Science at UNC’s School of Information and Library Science.

Fair Use, Public Domain, Scholarly Publishing

Literary borrowing

June 18, 2010 Kevin Smith, J.D. 1 Comment

Pure chance recently put a copy of the “Sketch book” by Washington Irving into my hands, and I have been enjoying rereading classic stories and discovering ones that were previously unfamiliar. In the latter category is “The Art of Book Making,” in which Irving describes a desultory trip to the British Museum and his fascination with watching putative authors as they devour earlier works in order to create their own. I have commented before on the need for authors and other creators to have useful access to previous works in order to create new knowledge and literature. Isaac Newton’s famous phrase about “standing on the shoulders of giants” often springs to my lips. But I could never match the eloquence and humor of Irving’s description of, and justification for, literary borrowing — especially the image of mushrooms springing from a rotting tree trunk — so I will, for the remainder of this post, simply allow him to speak:

After all, thought I, may not this pilfering disposition be implanted in authors for wise purposes; may it not be the way in which Providence has taken care that the seeds of knowledge and wisdom shall be preserved from age to age, in spite of the inevitable decay of the works in which they were first produced? We see that nature has wisely, though whimsically, provided for the conveyance of seeds from clime to clime, in the maws of certain birds; so that animals, which, in themselves, are little better than carrion, and apparently the lawless plunderers of the orchard and the cornfield, are, in fact, nature’s carriers to disperse and perpetuate her blessings. In like manner, the beauties and fine thoughts of ancient and obsolete authors are caught up by these flights of predatory writers, and cast forth again to flourish and bear fruit in a remote and distant tract of time. Many of their works, also, undergo a kind of metempsychosis, and spring up under new forms. What was formerly a ponderous history revives in the shape of a romance—an old legend changes into a modern play—and a sober philosophical treatise furnishes the body for a whole series of bouncing and sparkling essays. Thus it is in the clearing of our American woodlands; where we burn down a forest of stately pines, a progeny of dwarf oaks start up in their place; and we never see the prostrate trunk of a tree mouldering into soil, but it gives birth to a whole tribe of fungi.

Let us not, then, lament over the decay and oblivion into which ancient writers descend; they do but submit to the great law of nature, which declares that all sublunary shapes of matter shall be limited in their duration, but which decrees, also, that their elements shall never perish. Generation after generation, both in animal and vegetable life, passes away, but the vital principle is transmitted to posterity, and the species continue to flourish. Thus, also, do authors beget authors, and having produced a numerous progeny, in a good old age they sleep with their fathers, that is to say, with the authors who preceded them—and from whom they had stolen.

Discussions about the changing world of scholarly communications and copyright