File-Sharing, YouTube and the DMCA’s chilling effect

With a new round of litigation threats from the Recording Industry of America, there has been a lot of attention, and confusion, about what obligations internet service providers have to respond when notified of allegedly infringing activity. The phrase “take-down notice” is beginning to enter our collective vocabulary, but it is important to understand to which situations it does, or does not, apply.

The take down notice is a product of section 512(c) of the Copyright Act, added by the Digital Millenium Copyright Act of 1998, and it is applicable only when the allegedly infringing material resides on the servers owned by the internet service provider. There is substantial evidence that these notices are used by content owners to remove critical material from the web even when the claim of copyright infringement is very weak.

A recent, almost comic, contratemps between law professor Wendy Seltzer and the NFL nicely illustrates how take-down notices work. Prof. Seltzer copied and uploaded to YouTube a short section of the Super Bowl broadcast — the part where they read that overly broad copyright warning that says that even “descriptions and accounts” of the game must be authorized by the NFL — in order to illustrate the absurd claims that some copyright owners use to try to frighten people from making legitimate uses of content. The NFL promptly sent a take-down notice to YouTube, which removed the video and notified Professor Seltzer. She responded with the statutory counter-notification that asserted her posting of the video clip was fair use, and YouTube put the video back. Then the whole cycle was repeated again. The clip, restored for the second time on April 4, is still on YouTube as of today, and Prof. Seltzer has certainly made her point about how copyright assertions, and especially the DMCA take-down procedure, can have a chilling effect on legitimate expression. (See Wendy Seltzer’s blog as well as the “Chilling Effect Clearinghouse“).

But when infringing material does not reside on the service providers’ own equipment (as clips in YouTube reside on Google-owned servers), then neither the take-down notice and counter-notice nor the expedited subpoena process apply. Thus, in cases of peer-to-peer file sharing, where the infringing material is only transmitted over the service provider’s network but is not stored or maintained on that network, the 512(c) procedure can not be used.

So what is the RIAA sending to universities regarding file sharing? The recent batch of letters sent to university DMCA agents, who are designated to receive take-down notices, have taken two forms. One is a “settlement offer” that is identified only by an IP address and that asks the institution to pass on to the student associated with that address. When and if the letter is passed on to the correct student, that person is told to go to a specified website and settle the claim for infringement or risk being sued. Since this procedure saves the RIAA the time and trouble of getting a subpoena to learn the identity of each student alleged to be sharing files, it is much more efficient for the RIAA; it puts the institution in the middle instead.

Some schools have responding by saying that they do not retain server logs long enough to match the dynamic IP addresses referenced in these settlement letters to the offending student, so the RIAA has added another letter, demanding that the institutions retain records in anticipation of possible litigation. Whether or not this demand is legally enforcable is a debated issue, but many universities are complying with both letters out of concern not to leave students unaware of their risk of litigation. So now the “chilling effect” that has long been associated with the DMCA is being exploited to save time and increase settlement revenues for the recording industry.

Thank you, Stanford

The copyright world owes a debt of thanks to Stanford University for creating a database of copyright renewal records for books published between 1923 and 1963. These dates are significant because anything published before 1923 has fallen into the public domain, while works published after 1963 had their copyrights renewed automatically by the 1976 Copyright Act. That leaves a lot of material in a kind of netherland — assuming the book was published with notice and registered, its copyright had to be renewed (under the earlier U.S. copyright law) after the initial 28 year term in order to have a second 28 year term. If a registration was not renewed (and many were not), the work fell into the public domain; if it was renewed, the work was automatically brought within the ambit of the new law and will be protected until at least 2019.

So it has been very important to know if these mid-century works were renewed or not. Unfortunately, the only Copyright Office records at the Library of Congress that are online are those filed after 1977, so there has been a big gap for which one either needed to search the printed volumes that were published every six months or just give up on knowing for certain. Now it is possible, and much easier, to determine with some precision whether or not many mid-century works are in the public domain and, therefore, freely available for scholarly use, digitization by libraries, etc.

It is interesting that the Google Book Project has treated all post-1923 publications (even government publications that are not subject to copyright protection) as still protected by copyright, giving that project an artifically narrow window on the public domain. Because Google’s scanning work is done so fast and in such volume, it is probably unrealistic to expect them to make fine copyright distinctions. Nevertheless, those distinctions just got a lot easier, and it is to be hoped that Google, or other digitization projects, will use the Stanford database to provided greater access to material that really is the common property of our intellectual heritage.

The downside of playing nice

There has been lots of talk in copyright arenas recently about settlements. Some settlements, like the “pre-litigation” settlements the RIAA is offering to college students, where the industry collects roughly the same amount they had been getting from their lawsuits without having to bear the expense of actually filing, are clearly bad deals for the public.  But the downside of other settlements is not so obvious.

Recently English professor Carol Schloss settled her lawsuit against the James Joyce estate. She had sought a declaratory judgment that quoting from unpublished letters between Joyce and his daughter Lucia in a scholarly book was fair use, and the settlement was clearly a victory for Schloss. The Joyce estate agreed not to sue her for using the excerpts, which had been removed from her book about Lucia under threat of an infringement claim, on her web site and in future publications. But it is less clear that this is a victory for scholarship in general. If the case had gone to trial, a decision would have had precedential value, and we would have had another bit of clarity in the murky world of academic fair use. Fair use is so ambiguous that scholars often refrain from certain uses simply to avoid the uncertainty. Most of us assume that quoting from primary sources in scholarly work, just as Schloss wanted to do, is fair use, but it would have been nice for a court to confirm our impression.

Instead, the settlement agreement only resolves the issue between the parties to the case and has no impact on fair use for the rest of academia. In fact, the AP paraphrased the attorney for the Joyce estate this way: “Nelson also noted that the estate granted only Schloss permission to quote the materials under limited circumstances, meaning neither she nor other scholars would be permitted to use them outside the scope outlined in the settlement agreement.” Not really a Phyrric victory, but not a helpful one either.

Suggestions that the various publishers who are suing Google over the Book Project might settle for some lump sum payment from Google’s deep pockets offer a similar prospect. If Google were to lose its fair use claim in court, of course, the effect on fair use for the rest of us could be profoundly negative. But if they fought on and won, the prospects for library digitization and public access would be much brighter.  A settlement, however, will set only one precedent — that lots of money can solve all disputes. It will not clear up the fair use picture and it will not benefit libraries that can not afford to purchase the right to digitize their collections for the benefit of the public.

So with all due respect to my grandmother’s admonition to get along with everyone, I have to recognize that sometimes there is a downside to playing nice and coming to a settlement agreement.

More about the FAIR USE Act

Several weeks ago I promised more comment (read previous post here) after I had read up on the proposed law, so here goes.

Perhaps the biggest confusion about the FAIR USE Act is caused by its name; since it is really aimed at reforming the anti-circumvention rules of the DMCA, it does not directly deal with the fair use provision of the Copyright Act.  In fact, in his remarks while introducing the bill, Rep. Boucher explicitly stated that “the revised bill does not contain the provision which would have established a fair use defense to the act of circumvention.”  Boucher’s co-sponsor, Rep. John Doolittle acknowledged in a recent interview that it was necessary to narrow the scope of the bill somewhat by eliminating such a provision because the content industry would oppose a full fair use defense so vigorously.

But the FAIR USE Act does not entirely ignore fair use either.  Rather inconsistently, Rep Doolittle, in the same interview mentioned above, also referred to the proposed bill as an attempt to “preserve fair use for the consumer.”  What the FAIR USE Act actually would do is to introduce an exception to the anti-circumvention rules that is not as broad as fair use, but that would establish a defense to charges of circumvention that looks a lot like fair use.  Specifically, section 3(b)(v) of the new bill would allow circumvention to gain access to “works of substantial public interest… for purposes of criticism, comment, news reporting, scholarship, or research.”  This sure sounds like fair use, especially in its focus on activities strongly protected by the First Amendment.  One major difference is that, by providing an exclusive list of the allowable purposes for circumvention, this bill would not permit circumvention for most commercial purposes, even if the use would otherwise fit within fair use.  Also, “works of substantial public interest” is presumably a narrower category than all the works that might be subject to fair use, but defining this narrower category would certainly generate as much as litigation as fair use itself does.

The big question for the FAIR USE Act is whether it has any chance of passage.  Two previous versions (which did include a full fair use defense to circumvention) failed to advance very far in Congress.  Rep. Doolittle admits frankly that the change to a Democratic-controlled Congress has not significantly improved chances this year, since the new Chair of the relevant House committee is less sympathetic to the bill than his predecessor.  The hope is that the somewhat narrower scope of the bill, combined with increasing public awareness of the draconian impact of DMCA anti-circumvention rules, will improve the environment this time around.  Given the other valuable (and necessary) provisions found in the bill for libraries and for classroom teaching, even a version without the broad exception quoted above would be worthwhile.

Listen here to a podcast (optomistically called “The beginning of the end for the DMCA”) of the interview with Rep. Doolittle about H.R. 1201 , the FAIR USE Act. 

Publishing Mergers –Not Good for the Market or Libraries

The consolidation of the publishing industry through mergers and acquisitions has caused quite a few concerns for libraries and universities.  Economists who are studying this market have found that it does not act like the market for most common goods.

 The academic journal market is very inelastic — there are no perfect substitutes for a scholarly journal.  Each journal has its own unique content and emphasis.  For example, an academic health sciences library needs to subscribe to both PEDIATRICS and JOURNAL of PEDIATRICS; it would be difficult, if not impossible, to rely on just one of these publications.  

 When a large publisher buys a smaller one, it can raise the cost of subscriptions and libraries still have to purchase the subscription.  Historically, prices have increased after mergers and acquistions.

As a publisher increases the number of titles, the library begins to pay more and more to that publisher instead of several smaller ones.  With the creation of “big deal”,  discounted packages of all or a portion of the publisher’s journals, a library can be faced with spending all its funding on a few big packages and not having money to purchase journals from smaller publishers.  Acquiring new titles to support facult and students becomes more and more difficult since funds are tied up by these big deals.

With consolidation and larger market shares held by a few publishers, it also becomes more difficult for a competitor to enter the market. 

The library community through the Information Access Alliance has been working with antitrust lawyers and economists to study the dynamics of mergers on the marketplace.  They have also been alerting the US Department of Justice to the potential impact of current and future mergers.  Read their special report Publisher Mergers: A Consumer-Based Approach to Antitrust Analysis to find out more about the impact on the marketplace.  There is also a document describing the most recent acquisition of Blackwell Publishing (a publisher of society journals) by Wiley. 

If you are a member of a journal editorial board that is involved in a merger or acquisition, you may want to ask whether this is not only good for the journal, but also good for academic access to information.

Another warning for faculty authors

Our Scholarly Communications colleague at UNC, Deborah Gerhardt, just published this important warning about publication contracts in the Chronicle of Higher Education.

Her point that so-called “non-compete clauses” can hamper a scholar’s ability to publish later work on a particular topic is another reminder that, as the conflicts over copyright get more intense, it is vitally important to read publication contracts carefully. Deborah provides examples of language to look for and language to beware of, and the Duke Scholarly Communications office is always willing to help examine publishing agreements for faculty and student authors in order to protect those rights that are most important for supporing continued creativity and scholarship.

YouTube, Copyright and Innovation

When Viacom filed a copyright infringement lawsuit against YouTube, which is owned by Google, we all knew that the fur would fly. No one is neutral about Google these days, and YouTube has also created fierce partisans in the copyright wars.

It is quite possible that the lawsuit is simply a bargaining tool in the fight over the licensing payments that Viacom wants from Google, but, if the case goes to trial, the real issue will be how far copyright law can be used to prevent technological innovations that depend, to some degree or another, on using copyrighted material without permission. This debate is at least as old as the photocopier and the VCR, but the terms of the rough deal stuck by the Supreme Court in the 1984 Betamax case are still being contested.

Several newspaper and online columns over the weekend cast interesting light on this debate .

In the New York Times on Sunday (March 18), Larry Lessig of Stanford Law School makes the important point that Viacom is trying to use the courts to get around the compromise on innovation versus infringement that was established by Congress when it passed the Digital Millennium Copyright Act. The DMCA created a “safe harbor” for ISPs that merely hosted infringing material on their servers without specific knowledge of the infringement, so long as they act according to prescribed procedures once they have such knowledge. Now Viacom, emboldened by the Supreme Court decision in the Grokster case, is trying to revise that compromise through the back door, using the Courts new “inducement” theory of secondary copyright liability to undermine the policy Congress enacted.

Many predicted that the Grokster decision would have a chilliing effect on technological innovation; Lessig’s column suggests that the Viacom suit is a huge block of ice to contribute to that chill.

Along the same lines, Fred von Lohmann of the Electronic Frontier Foundation writes about all of the new technologies that might not have seen the light of day if copyright holders could sue based on the potential that users of the new innovation could infringe those copyrights. Even if one excludes the hyperbolic inclusion of reading glasses on his list, von Lohmann makes a powerful point — photocopiers, VCRs, iPods and even public libraries might be subject to restrictions and per-use fees in the world Viacom envisions.

James Boyle, in a column in the Financial Times, tries to put this debate in perspective by noting that, although it is sometimes difficult to feel sympathy for the ravenous giant that Google has become — it is no longer, as Boyle says, “a helpless start-up” — the interests that Google has pursued in its copyright conflicts often line up with the public interest. His reminder that the issues are much more complex than simply yelling “stop thief” at YouTube and Google (a tactic which Google’s rival Microsoft tried in a recent speech and op-ed), and that we as consumers of intellectual property also have an important horse in this race, are welcome indeed.

8 Cool things about the Creative Commons

EDUCAUSE, which is a non-profit organization devoted to promoting “the intelligent use of information technology” in higher education, has recently been offering a series of sort informational pamphlets call “7 things you should know about… ” The most recent item in this series is 7 things you should know about Creative Commons, and it is worth the attention of faculty seeking material that they can use in their classrooms without any of the copyright hassles that often arise.

The Creative Commons is a movement to encourage creators of all kinds of material to make their work available with only “some rights reserved” and with specific authorization for educational and other non-commercial uses already attached. Faculty who can find appropriate articles, image, video or music that is released under a Creative Commons license are way ahead in their ability to build a class without worrying about when and if the need to seek copyright permission. The two page PDF brochure linked above offers examples of teaching with Creative Commons materials, as well as more detail about what the Creative Commons is and how to find CC licensed material.

So what is the 8th cool thing about the Creative Commons? It is this article from the NY Times that describes the upcoming US tour by Brazilian songwriter and pop star Gilberto Gil, who also hapens to be the Minister of Culture for his nation. As a musican and a government official, Gil is an important advocate for the Creative Commons, which is rapidly becoming an international movement. As the article says, “One of Mr. Gil’s first actions after becoming the culture minister in 2003 was to form an alliance between Brazil and the nascent Creative Commons movement.” To anyone teaching about Latin American music and culture, that alliance should be good news indeed.

Troubling (and silly) journal policy

My colleague Aisha Harvey passed on an e-mail pointing out one of the most absurd and troubling requirements I have ever heard of from a publisher. Apparently, at least some journals from Haworth Press, which publishes lots of “niche” journals in library science and other social sciences, claim to require a transfer of copyright to the publisher before they will begin the peer-review process.

Many journals, of course, still require a transfer of copyright before they will publish an article, although more and more are realizing that all they really need is an exclusie right of first publication. But to require the transfer before sending a submission out for peer-review is unheard of and unnecessary. I would not have believe it was true had I not seen the language on a web page of instructions for a Haworth journal myself.

Requiring copyright transfer before review raises the interesting question of what happens when a submission is rejected for publication in the Haworth journal. One has to wonder if this departure from the normal practice of waiting till acceptance to request a transfer indicates that the peer-review process is really a sham and that material is seldom if ever rejected by the journal.

I have published a couple of times in one of Haworth’s library science journals, but I will certainly think twice before doing so again. I hope others in the library community will reconsider both publishing and server as an editor or reviewer for any journal that has this silly policy; as librarians we should both know better and set an example of good practices in scholarly publishing.

Traps for the Unwary

Don’t Sign That Book Contract

The Authors Guild recently ran this ad — Don’t Sign that Book Contract — to warn potential authors of the traps that might lurk behind the fine print in publication agreements. The graphic of a tiny author, pen in hand, standing in the middle of a bear trap, makes their point vividly.

Scholarly authors face similar traps today; with all kinds of new methods for distributing and using scholarly work available to them, especially on the Internet, it is more important then ever to read publication agreements carefully and to negotiate to reserve appropriate rights when necessary. Just as the Authors Guild offers assistance to its members, the Scholarly Communications Office is happy to help faculty and student authors at Duke understand their copyrights and manage those rights as they navigate the publication process. Let us help you stay out of the trap!

Discussions about the changing world of scholarly communications and copyright