A sequel on Salinger

In a comment about my previous post concerning the decision to grant a preliminary injunction in the Salinger case, effectively banning US publication of a story about Holden Caulfield 6o years later, the writer took me to task, quite harshly but with some justification, for my cursory and sweeping denunciation of the decision.  My post implied, although I admitted at the time that I had not read the entire ruling, that the Judge’s decision was uninformed.  Now that I have read the opinion, I must admit that it is not uninformed, but wrong for several other, more subtle, reasons.

First, as I said originally, Judge Batts does not adequately address the idea/expression dichotomy built into copyright law in section 102(b).  She acknowledges the concept early on in the ruling, even citing it as one of the elements that reconciles copyright with the First Amendment, but then does not mention it again.  The result of this omission is that she never tries, in her analysis of the alleged similarities between “Catcher in the Rye” and “Forty Years Later” to distinguish protectable from non-protectable elements before making the comparison.  This is standard practice in the substantial similarity analysis, and its absence leads the Judge to cite some amazing things as evidence of copyright infringement, such as the fact that both characters are liars, both complain a lot, and both travel to NYC.

It is certainly true that one can infringe in ways other than verbatim copying, but one must still show substantial similarity with protected expression; it is not enough to say that the protagonist in Catcher is delineated in words and therefore any word picture that is similar, even merely because it uses similar ideas, must infringe. I am reminded of the case brought against Dan Brown for infringing the copyright in “Holy Blood, Holy Grail” with his “The Da Vinci Code.”  The basic idea in the two books is fundamentally the same, but the case was dismissed (in the UK) because the court separated out unprotectable ideas and then found no substantial similarity.  That should have been the procedure, and the outcome, in the Salinger case as well.

I think a good deal of the problem is that the Judge spends too much time on the discussion of whether or not the new work is a parody of the old.  Even when she turns to other transformative purposes in her analysis, the Judge never really moves past the parody issue, since she focuses entirely on the (critical) use of J.D. Salinger as a character in the new novel.  But there are many kinds of transformative uses beyond these two types (which are really not very different); the Judge needed to consider the broad range of purposes listed in section 107 as examples of fair use in order to evaluate the full scope of possible transformation.

A clue that there is a problem with the Salinger ruling is that Judge Batts finds pretty explicitly that no unauthorized sequels would ever be non-infringing, but she offers no guidance at all about where the line is between impermissible sequels and other types of work, such as reference works that describe and analyze characters, settings and plots.  Essentially, the exclusive right over derivative works has been allowed to swallow the idea/expression distinction that is really vital to American copyright law, and the Judge offers us no way to mitigate or reconcile that result.  In fact, she tries rather feebly to make something positive out of her error here by suggesting that the right to prevent a sequel might actually give an incentive to an author to write a novel, secure in the knowledge that they will have the last word about every thought or idea they express.  Even if one assumes lots of authors as unsocial and controlling as Salinger, this is not a recipe for promoting the arts, whatever the Judge tries to argue.

This severe limitation on future creativity points up the last problem I want to cite in the Salinger ruling, and in many ways it is the most damaging.  Even though it is part of the required findings for issuing a preliminary injunction, Judge Batts never considers the balance of hardships between the parties if she grants the injunction, nor does she weigh the public implications of this prior restraint of speech, except with this odd argument about incentivizing authors who cannot tolerate followers.  These considerations are not optional when ruling on a preliminary injunction, and their absence should lead to reversal at the appellate level.   But even more important than following the letter of the Federal Rules of Civil Procedure is recognizing that it is absolutely vital that the public interest be considered whenever a judge is considering a request to ban a book, lest he or she run roughshod over the Constitution they are sworn to uphold.

The real problem with this ruling is not that it is uninformed, but that it misses the forest (including the public interest) due to its nearly exclusive focus on one tree.

I’m just a bill (and a “sourcebook”)

Open access advocates (of which I am one) were heartened last month when the Federal Research Public Access Act, known as FRPAA (S. 1373) and not to be confused with FERPA, was reintroduced into the 111th Congress.  The bill, which would mandate public access to research funded by many federal agencies, made considerable progress in the 110th Congress, and hopes are high for its passage this year.

One of the major arguments in favor of this legislation is that it would increase government accountability for the way it spends tax dollars, and the Alliance for Taxpayer Access is a major supporter of the bill.  They have a nice summary of the provisions and purpose of FRPAA here.

One advantage that now exists for those who support federal access to taxpayer funded research is that we have over a year’s experience now behind us with the National Institute of Health’s public access mandate for NIH funded research.  Although there have been some efforts to undo that mandate (the ironically named “Fair Copyright in Research Works Act” is the most prominent), by and large most people seem to acknowledge the success of the mandate, and it is easier now to imagine extending its reach that it was a year or so ago.  In fact, Sen. John Cronyn, in introducing FRPAA (he is a sponsor along with Sen. Joe Lieberman) specifically referred to the success of the NIH policy when he introduced FRPAA on the Senate floor.  This is particularly interesting because it is generally thought that much of the hostility toward the NIH mandate comes from a turf war between the Appropriations Committees and the Judiciary Committees over who has jurisdiction over such mandates; since Sen. Cornyn is a member of the Senate Judiciary Committee, that turf war ought not to derail FRPAA.  And this list of Higher Education leaders who have supported FRPAA in the past (including my Provost) is testimony to the sense in the research community that better access to these funded works will advance research and teaching.

For supporters of open access, another tool was unveiled in the same week that FRPAA was reintroduced —  OASIS (the Open Access Sourcebook) — that should make their tasks much easier.  OASIS is a website developed by Alma Swan and Leslie Chan to serve as a portal for educational materials.  A quick look through it suggests it will be tremendously helpful for those who want to understand the complexities of open access and to explain its meaning and various manifestations to others.  The resources are divided to make it easier to finding material relevant to different sets of stakeholders — students, researchers, administrators, publishers, librarians and the public.  One particularly valuable contribution made by OASIS, in my opinion, is the set of “briefing papers,” which are documents intended to convey essential information on selected topics in the space of two sides of a sheet of paper.  Four briefing papers are available as of now, and there is the promise of more to come.  Overall, this site will be a wonderful resource for all of us as we explain and advocate for open access; it will become hugely helpful when the time comes to explain the FRPAA mandate, after it is passed by Congress.

Can a “batty” ruling effect needed change?

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

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

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

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

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

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

Intersting development in Georgia State case

The copyright infringement lawsuit brought against Georgia State University by three major publishers has been in a relatively quiet phase recently.  Discovery, the process of gathering evidence and deposing witnesses, can be very dramatic, in fact, and decisions made during that phase of a trial can do much to determine who wins and who loses.  But it largely takes place outside of public view.  Nevertheless, there was a development in Cambridge University Press, et al. v. Georgia State University last week that could significantly change the stakes for the rest of the academic world as it watches this case unfold (thanks to Jeff Graveline at UAB for pointing this ruling out to me).

This gets a little technical, so bear with me.

When the lawsuit was first filed, lots of librarians and other academics read the complaint and thought, if that is what GSU has been doing, they have really been pushing the envelope.  The copyright policy under which the University System of Georgia operated was the work of a brilliant scholar, but it represented a very liberal interpretation of the law.  The complaint outlined objections to the policy, as pushing the interpretation of fair use too far, as well as citing practices that seemed outside even the broad scope of the Georgia policy.

Earlier this year, the Georgia Regents adopted a new copyright policy after a select committee reviewed and entirely rewrote the older one.  The new policy is shorter, more easily comprehended and more pragmatic.  In fact, it comes a lot closer than its predecessor to reflecting policies around electronic course content that are common on many campuses.

After this new policy was adopted, attorneys for GSU filed a motion for a “protective order” which would state that only information about electronic course content going forward, under the new policy, could be “discovered” by the plaintiffs.  GSU argued that since they were a state institution, and therefore entitled to immunity from damages, the plaintiffs could only get prospective relief (an injunction) and therefore should be limited to information about practices related to the policy under which GSU would go forward.  After some legal maneuvering, the Judge granted this request last week.

As I read the Judge’s decision on this motion, the only reason the Plaintiffs now need to know anything about prior practices at GSU would be to argue that the new policy has not really changed anything. And Judge Evans has now held that enough has already been revealed about past practices to support or refute that argument.

For the rest of us, this means that the decision about fair use, if the case gets that far, will be a lot more relevant to e-reserve and course management systems use around the country.  That, of course, could be a good thing or a bad thing, depending on how the decision goes.  But it seems the decision will be based on policy and practice a lot closer to what many schools use (assuming, of course, that the new policy really does indicate changes in practice).  Presumably a ruling in favor of fair use is a little more likely now that it will be decided on the basis of this more pragmatic policy.  And such a ruling would more clearly support wide-spread practices in higher education.  On the other hand, a ruling against Georgia State, if it happens, would be much harder for the rest of us to explain away and distinguish from our own practices.

Openness and academic values

An interesting controversy arose recently at San Jose State University, when a professor objected to the fact that one of his students posted source code he had written as part of some class assignments onto the web.  Amazingly, the professor claimed that sharing this code was tantamont to plagiarism, since it made the student’s work available for others to copy, and might be copyright infringement.  This latter claim seems to have been based on the professor’s belief that, as the author of the assignment, he had a copyright interest in the work of the student.  There is a report and comment about this case from Ars Technica here, and one from Inside Higher Ed here.  The University’s Judicial Affairs office did not comment on the copyright claim, but it did determine that the student had not violated the academic integrity policy and could not be prohibited from posting his own work.  There are lots of opportunities here to elucidate copyright issues and ponder the important values of academia.

As far as the copyright issue is concerned, it seems pretty clear that the professor does not really have a claim here, at least not if all he did was to pose a problem for his students to solve.  Ideas, we must recall, are not protected by copyright, only expression is.  Computer code is protected by copyright from the moment it is fixed; the Copyright Office considers software a “literary work.”  That protection is vested in the author, and no interest is owned by a person who merely set the parameters of the work or suggested ideas which might be used.  Patents, which are also available for software, do protect ideas, and perhaps the SJSU professor is confusing the two very different kinds of protection (although there is no indication that anyone has sought a patent).  Unlike a patent, there is no need to apply for copyright protection.  That protection is owned by the author of the expression.

Which brings me to the most important reminder to be taken from this case.  It is that students own the copyrights in the works they create at our institutions.  As the digital age offers new opportunities to disseminate scholarship, including student scholarship, we need to remember that students own their copyrights (just as professors own theirs) and formulate appropriate policy to respect those rights and facilitate use and sharing as needed.

On the plagiarism charge, I think it is clear that SJSU was correct to affirm the ability of students to share their work.  If open access sharing is thought to be a problem because of the mere potential for plagiarism, all publication would pose a similar threat.  And especially in the area of computer science, where open source code is a common norm, it is important for students to learn the value of sharing in terms of the ability of a community to review and improve a scholar’s work, and to develop judgment about when a particular work is ready to be shared.

There are many reasons to share scholarship, and very few reasons to keep it secret.  Scholarship that is not shared has very little value, and the default position for scholars at all levels ought to be as much openness as is possible.  There are a few situations in which it is appropriate to withhold scholarship from public view, but they should be carefully defined and circumscribed.  After all, the point of our institutions is to increase public knowledge and to put learning at the service of society.  And there are several ways in which scholars benefit personally by sharing their work widely.  The SJSU student hoped that potential employers would see his work and be impressed; how can a university object to that hope?  Indeed, it reflects the professional ambitions of most scholars, and they, like our student, benefit in that ambition if they share their work as openly as possible.  Openness should be the default for academic work, and closed access only an alternative when there are clear and coherent reasons that justify it.  In this case, the student has something important to teach the professor about the important values of academia.

An approprate way to close this reflection is to point to the web site for the Open Student organization, where students are working constantly to remind the academy that openness and public access are key elements to embodying our educational mission.

Words having meanings, but money talks.

The overheated rhetoric employed by the big content industries in their futile and probably suicidal battle against file sharing has been very detrimental to any hope for an improved understanding of copyright and intellectual property.  For example, in an age when real piracy has once again become an international concern, the use of term “piracy” for file sharing seems both inaccurate and offensively self-centered.  In a recent article in Information Today, K. Matthew Dames does a effective job of deconstructing this use of “piracy” and explaining why it really does matter what language we use to frame the problem of copyright infringement.

There is some irony in Dames’ article, however, in his use of “theft” as an alternative to “piracy,” as when he asks “should “piracy” continue to be used to mean theft of works that are protected by copyright or other forms of intellectual property (IP)?”  Black’s Law Dictionary, following a long common law tradition, defines theft as “the felonious taking and removing of another’s personal property with the intent of depriving the true owner of it.”  This definition indicates why theft is also a poor word to use to frame the problem of infringement.  The characteristic of intellectual property that it can be shared without depriving the original owner of it, and that its value, in fact, depends on this ability to share copies, explains why legislators have always distinguished infringement from theft.  To infringe does not mean to “remove” the IP but to copy it.  Nor is there an intention to deprive the owner of the property, merely some of its value.  Since theft is a “specific intent” crime, IP is not treated as personal property (chattels) under the law, but in a conceptually different category which can be infringed but not stolen.

Why do these fine legal distinctions matter?  In my opinion, the greatest harm done by the rhetoric of piracy and theft is that it seems so absurd to many people that they discount the seriousness of infringement.  The ubiquity of file sharing today seems to prove this point.  By overreaching in their rhetoric, the content industries encourage many people not to take them seriously.  But infringement is a serious matter; it deprives someone of their rights, if not their property, and that is a matter the law should take seriously. The rhetoric of theft and piracy makes it too easy to laugh and scoff instead.

Nevertheless, the exaggerated language and claims of the content industries do have some effect.  For one thing, they can influence juries to get swept up in the overheated atmosphere created by talk of piracy and theft.  How else can one explain the verdict in the second trial of Jammie Thomas-Rasset?  When her first trial for downloading 24 songs without authorization ending in a judgment of $222,000 in damages, or $9,250 per song, the judge himself called that amount “unprecedented and oppressive.”  Now the second jury has assessed damages of $80,000 per song (although there seems to be no chance of collecting that money and indications that the RIAA will not try).  It is easy to conclude that the same rhetoric that seems so silly and inapt as part of an “education” campaign is very effective in the hothouse atmosphere of a courtroom; perhaps, indeed, that has been the point all along.  In any case, we will certainly hear a great deal more from the content industries trumpeting this victory and trying to deter even legal sharing with the threat of ridiculous damage awards.

In the meanwhile, Fred von Lohman of the Electronic Frontier Foundation raises the interesting question of whether this award of damages is constitutional.  The Supreme Court has struck down punitive damage awards in the past when they were considered so out of line with actual damages that they violated due process, and in the Thomas case the actual damages were less than $25.  So an award of almost 2 million is certainly out of line.  The problem is that statutory damages are different from punitive damages in an important way — they are written into a statute.  Excessive punitive damages have been found to violate due process because they are unforeseeable; a defendant in a relatively small case cannot imagine that they could find themselves liable for millions, and the decision to create such liability is made solely by a jury in the specific case.  The Court has found that reasonable foreseeability is a limit on a jury’s discretion in such situations.  In an infringement case, however, the range of damages is specified in the law, and a potential defendant should know the consequences prior to undertaking infringing activity.  There is not, in short, the same kind of due process problem in copyright cases.

This is one reason why I do not expect the award in the Thomas case to be challenged on Constitutional grounds.  The other reason is that the RIAA has already signalled that it is willing to settle for much less money; it wants to advertise the judgment but not appear like an ogre trying to squeeze blood from a turnip.  Perhaps the best reason for the RIAA not to try to collect here, however, is that it does not want to see either a court challenge to the Constitutionality of the statutory damages provision of the copyright law OR a legislative awakening to the obvious fact that these damages have gotten out of hand and should be reduced as a matter of good law and common sense.

Fair use, by comparision

Fair use is a uniquely American concept, in spite of its recent inclusion in the national copyright laws of Japan and Israel.  In the US, after all, it is a common law doctrine that was developed by judges, intent on mitigating the most unfair applications of the copyright monopoly, for over 120 years before it was adopted in almost the exact terms in which it had been articulated by those judges, into section 107 of the 1976 Copyright Act.

When I spoke to the eIFL IP conference back in March, this history of fair use was in my mind as we discussed the flexibility that fair use offers versus the certainty offered by more specific exceptions for research and teaching found in the copyright laws of most other countries.  I blogged about those reflections a couple of months ago, and also wrote recently about the history of fair use in the US.

Now I have just finished reading an article by Duke Law Professor Jerome Reichman and Professor Ruth Okediji of the Univerisity of Minnesote Law School that has renewed and deepened these comparative reflections about fair use and international copyright law.  The paper, “Empowering Digitally Integrated Scientific Research: The Pivotal Role of Copyright Law’s Limitations and Exceptions,” is a sweeping discussion of the potential inhibition of science and international development caused by copyright law’s “one-way ratchet” in international fora, by which levels of protection keep getting increased while limitations and exceptions have been, until recently, largely ignored.  But I want to focus briefly on a small part of the discussion by Reichman and Okediji about the relationship of fair use to limitations and exceptions in the rest of the world.

The point I want to emphasis is fairly simple (probably because I have not fully digested the article yet).  It is simply that fair use and the “three-step test” used to evaluate limitations and exceptions under international agreements have something to teach each other.  The three step test, found in the Berne Convention in article 9.2 and in several other places in international IP agreements, says that limitations and exceptions adopted into national copyright laws should apply to “certain special cases,” not “conflict with normal exploitation” of a work, and not “unreasonably prejudice the legitimate interests” of a rights holder.  There has been a great deal of debate about how to interpret these terms and how to apply this test; the major content industries have latched onto its language to suggest that only the narrowest of exceptions can pass muster.

Reichman and Okediji suggest that the interpretation of the three-step test should proceed more in the way fair use is interpreted, as an equitable balancing test where there is no “score keeping” of the factors, nor must each factor favor the same side of a debate.  Instead, they argue, quoting the Max Planck Institute’s declaration on the subject, courts should weigh these three steps in light of the circumstances and the normative values that IP law tries to embody.  In short, they see the three-step test as an “equitable rule of reason,” as fair use has been called for years.

On the other hand, Reichman and Okediji also find a lesson for fair use in an examination of the three-step test.  One reason judges are sometimes reluctant to apply fair use in a given situation is that it is an “all or nothing” proposition.  If a work is fair use, the rights holder is not entitled to any compensation for the use.  As the authors see the three-step test, it suggests the lesson that sometimes a use may serve the public good to such a degree that, in the circumstances, no compensation is called for.  But they also recognize that there may be situations where the use should be allowed, but equitable compensation paid to the rights holder.  They suggest that situations in which the use serves a normative public good but also generates revenue, a rights holder could deserve compensation from those revenues.  Thus fair use would become a mechanism for imposing, in some circumstances, a compulsory license for a particular use rather than a free pass.

This is a fascinating suggestion, and one wonders whether judges could, or would, make this change to fair use without statutory amendment.  Congress specifically said, when it incorporated fair use into the law, that that doctrine was left free for further interpretation.  In any case, this is only one of a compelling series of points that Reichman and Okediji make about the relationship between copyright law and the progress of science around the world.

Peer review and open access

Several different events have focused my attention recently on the relationship between open access initiatives and peer review.  First, a new task force on “digital futures” at Duke met for the first time yesterday, and it became clear very quickly that this group sees an open access initiative as its first task.  The group, which was appointed by the Provost and is predominantly made up of faculty, will evaluate various options and recommend a policy or policies to the Provost and the Academic Council.  The discussion at the task force’s first meeting made in very plain that open access was an important value to the group, but also that the apprehensions and misapprehensions about how open access is related to peer review and traditional promotion and tenure processes would be a major focus for conversation and education.

Next, I ran across this blog post by T. Scott Plutchak, the Director of the Health Sciences Library at the University of Alabama at Birmingham, about peer review and the NIH Public Access mandate.  I certainly do not agree with everything Plutchak says here.  He often seems to treat copyright as a publishers’ right rather than a right that vests with an author at the moment of creation, and that error creates a significant confusion when he mentions, and rejects, the argument that “the publisher has the right to refuse to grant the license.”  Of course, it is the author, as the original copyright holder, who grants a license to NIH as a condition of funding.  The publisher merely decides whether or not to accept an article and the transfer of a copyright that is subject to that prior license.  But Plutchak is quite right to raise the issue of peer-review and to note that the NIH clearly values such review and is gaining a benefit from a process that is managed by publishers.

That concern leads me to the article I really want to point to with this post, “Publish and Cherish with Non-proprietary Peer Review Systems” by Leo Waaijers.  Waaijers raises the same point that worries Plutchek and says quite bluntly, in the context of the multiple open access mandates from funding agencies that sponsor research in the European Community, that such mandates are unfair to a large number of authors because they are forced to negotiate copyrights with a variety of publishers, and most cannot publish in fully open access journals.  Most of the others must transfer copyright in order to gain the obvious advantage of the peer-review system managed by commercial publishers.  Waaijers’ solution to this unfairness is striking; it is simply that funding agencies should contract directly with publishers to create “non-proprietary” peer review systems.  By this he means systems that can accomplish independent peer review without insisting on a transfer of copyright; such systems would allow far more authors to make their work available directly in open access form without jeopardizing their promotion and tenure processes.

This suggestion clearly requires a lot of thought.  But two interesting things seem to stem from such a idea.  First, by separating peer-review from the process of proprietary publication, it would create an on-going role for some publishers even when and if their current business models become unsustainable.  Waaijers’ suggestion would ask existing publishers to submit proposals to the funding agencies to run these peer review systems, which would be independent of their other publication activities, thus taking advantage of developed expertise without continuing to tie that expertise to a specific model of scholarly communication.  Second, by examining the bids created in respond to a funder’s tender or request for proposals, the scholarly community would gain much better insight into what it actually costs to run a peer review system, which is, after all, the part of the current model of scholarly publication that is most important to scholarly authors and that we must take care to preserve in some form.

New (and not so new) resources

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

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

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

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

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

What has changed

Courts in the U.S. have asserted for years that our copyright law is compatible with the First Amendment guarantee of free speech by citing to principles — fair use and the rule that copyright protects only expression and leaves the underlying ideas free for all to appropriate, reuse and build upon.  Both of these safeguards are still in place, yet I have twice claimed in this space that we need to look again at the relationship between copyright and free expression.  So the question presents itself, do I just not get it, as at least one commenter seems to think, or has something changed to make reliance on fair use and idea/expression inadequate these days?

Although I am not convinced that the two principles usually cited were ever adequate, especially as the scope of copyright’s monopoly expanded, what has clearly changed, in recent years, is that Congress adopted the Digital Millennium Copyright Act in 1998.  The DMCA added two provisions to the copyright act that have had a negative impact on free expression.

First were the legal protections provided for technological protection measures, or DRM (digital rights management) systems.  It is ironic that content owners decided to move toward technological locks because they felt that legal protections were inadequate, and then found they needed legal protection for those locks when they proved insecure.  But the combination of digital locks and “anti-circumvention” rules has been devastating for free speech; even use of public domain works can now be locked up, and the law will prevent access.

Lest we forget the power of DRM, here is a note about the Motion Picture Association of America “reminding” a court that it is illegal to circumvent DRM systems even for a use of the material that would be perfectly legal.  So when digital locks are used, one of the safeguards our courts have relied on to preserve free speech — fair use — is apparently useless.  As the EFF attorney mentioned in a blog post linked above says, it is by no means certain that fair use is entirely trumped by DRM, but there is a case that held that, and the content owners certainly believe that fair use is now obsolete.

An extensive study done by Patricia Akester, a researcher with the Centre for Intellectual Property and Information Law at Cambridge University, lends weight to that argument that what she calls “privileged uses” (like fair dealing in the UK and fair use in the US) are adversely impacted by DRM systems.  There is a report of her study here, and the full text (over 200 pages!) is here.  Akester may have done the first empirical study of these adverse effects, and her conclusions are sufficiently gloomy to lead her to suggest a legislative solution.  She proposes that a “DRM Deposit System” be established where content owners are required to deposit either the key to their lock or an unencrypted copy of the work.  Then a user could make an argument or meet a set of requirements for access when their proposed use was clearly within a privilege.  If the content owner declined to deposit with the system, circumvention for access for privilege uses would be allowed.  Some such system, similar to the “reverse notice and takedown” proposal discussed here over a year ago, is clearly needed if fair use is to continue to function as a safeguard of free speech.

The other provision of the DMCA that imperils free expression is the notice and takedown procedure itself, which was created to protect Internet service providers (ISPs) from liability for infringing activity that happened over their networks.  In one sense, this “safe harbor” has been good for fair use, allowing the creation of user generated content sites like Flickr and YouTube where lots of fair use experimentation can take place.  But that take down procedure is being abused, with bogus notices being sent to prevent legitimate and even socially necessary criticism and parody.  ISPs are quick to takedown sites that are named in these takedown notices, and the process for getting them restored subjects the original poster to an increased risk of liability.  It is very costly, after all, to defend free speech even against a bogus claim.  So abusive takedown notices have now become a favored way to suppress criticism and comment that is unpopular with a major company or content owner.  The long tradition of “I Hate BigCo, Inc., and here is why” web site, which courts have often held to be fair use of copyrighted and trademarked content, is now much riskier than it was before.  In fact, the Electronic Frontier Foundation has even created these six steps to safegaurd a gripe or parody site, recognizing that free speech is not longer sufficiently protected by traditional provisions within the copyright law alone.

Discussions about the changing world of scholarly communications and copyright