March 2007 Archives

Thank you to Georgia for convincing me to write as a guest blogger on copyright issues. As a university attorney, I am lucky to be able to follow many interesting issues, but I have to say that copyright has been my favorite. The past decade has been a very exciting time to follow court cases, technological developments, a few brilliant lectures and the ever present war of words on how to promote the Progress of Science and the Useful Arts.

I have totally enjoyed blogging, learning about permalinks, and finding out about what others have to say online. I expect Steve McDonald, who is the guest blogger for April, will have lots of fun with his post over the next month. Steve is always insightful, so stay tuned!

A New Yorker article titled Dangerous Games describes how the writer Sándor Márai (author of Embers) spent his last year before escaping from Hungary as the Communists closed in:

"When the borders were closing, and the secret police were circling, and the publishing house was telling him to stop writing, and his income had trickled to nothing, and his friends were leaving or being arrested, he spent an extra year in libraries, gulping down second-tier Hungarian literature, like a camel preparing for a desert crossing."

In Márai's memoir he describes his motivation for choosing to eschew the classics while consuming the lesser known Hungarian writers:

"I read the works of Hungarian writers. But not the classics..but those of the less noted..I kept sampling this pure powerful prose like someone who has stumbled on a buried cellar where he discovers a barrel filled with an old vintage.…I began to search the works of “the second set” of Hungarian writers for what I wanted to take with me, because I knew I would never find any trace of them abroad."

Will the second tier of books in various cultures continue to be preserved to be inhaled by future writers to nurture their souls? If you have read Sándor Márai you have to hope this will be the case.

Peg O'Donnell has been graciously sharing her time and her insights with us this month as the Collectanea guest blogger, and I want to thank her for taking the plunge and trying this out. She's our first guest and she's established "guesting" as a very positive feature of what Collectanea has to offer.

Blogging is an art actually, and not one that everyone takes to. But I've had a lot of fun with it and I'm happy to see that Peg seems to have enjoyed it too. I'm also happy to say that Peg has agreed to stay on as an occasional contributor, so do look for her posts from time to time as something irresistibly sharable crosses her path.

So, thank you very much Peg! I do so appreciate your having joined me here for the month of March, and I look forward to hearing more from you as the year in copyright unfolds.

Georgia

Judith Thomas does a masterful job of explaining best practices and challenges in creating a digital motion media collection in this article, Digital Video, the Final Frontier - 1/15/2004 - netConnect. I'm studying digitizing video right now at the iSchool, and this was an optional reading. I found it most inspiring because there's not one mention of copyright or rights or permissions in the entire article. It's simply not on the table. Wow. That's like a dream, isn't it?

Several years ago I was invited by the Library of Congress to participate in a 3 day discussion about digital archiving. The setting was in gorgeous Berkeley, CA at a fabulous hotel. The other invitees were a glittering array, including the Register of Copyrights, MaryBeth Peters. I gladly accepted, and I felt honored to be invited. But, a curious thing happened at the very beginning of the gathering. All the participants agreed that they would define the copyright issues out of the discussion. I don't know how the Register felt about this, but it made me feel a little under-utilized, to say the least (useless, puts it more bluntly). I was absolutely amazed at the quantity of ideas entertained, the quality of the solutions proffered, the creativity of the group. If copyright had been on the table, the group might just was well have sat around the pool gossiping. It would have been, in effect, a nonstarter.

Since that meeting, I've begun more and more to believe that for some things libraries need to do for the future, they just need to be done without much concern for what the law says today. The very idea that anyone who's job it is, or I should say who's mission in life it is, to preserve for posterity, simply cannot stand by and watch important pieces of the 20th century just crumble before their eyes because of fear of getting sued, more often than not, by someone who could care less what you're doing, or who's actually dead, or who's descendants could care less, etc. etc. etc. etc. etc. etc.

I noticed earlier today a post at Michael Geist's blog about a remarkable speech by Bruce Lehman, former Commissioner of Patents and architect of the DMCA, notably including the anti-circumvention provisions, in which he suggests that we're entering a post-copyright era. He also admits that the DMCA as an approach has failed...

This idea that copyright is becoming irrelevant is actually one of the things that contributed considerably to my decision to get a degree in information studies and refocus, away from copyright. It's just terribly out of sync right now and as much as I hate to admit it, I truly feel that it just has to be ignored in some of its more egregiously out of sync aspects. (I'm waiting to be struck dead by a lightening bolt... waiting... waiting...) This is like the moral dilemma of our time (for those of us who think about things like this), like civil disobedience. Defiant preservation, organization, indexing, and access. Will wrong-headed and failed laws go quietly into the night at some point, or do we just turn away and embrace new paradigms created on their ruins, such as Creative Commons licenses and new business models that rely on something other than artificial scarcity to motivate creativity? And will libraries just quietly do what has to be done?

Back when I was in college, your music collection, shown by your record albums, helped define who you were. It may be the same today with one's iPod for those who are at the point where self definition is a major focus. But today you are defining yourself in bits and pieces, rather than by entire albums. The New Times recently noted sales of single songs, in digital format, are now reaching record heights, up 54% this year.(The Album, A Commodity in Disfavor)
No one who likes listening to music can deny that it is fun to collect, in whatever format. One article I read started with the opening sentence that human beings must be hard wired to collect music, so diligent have we been over the years, moving from 45s to albums to reel to reel to CDs and then mp3s. In the hurry to collect, we may forget to think about and make known our preference for keeping our options open on how music will be presented in the future.

There are important policy issues involved in the delivery of music. Copyright and the illegal downloading of mp3s has gotten the most attention, but this is far from the only policy issue presented. One group that has played a key role in attempting to influence policy and make known the variety of policy/legal issues affecting the creation and delivery of music is The Future of Music Coalition .A recent article on their web site describes a "once-in-a-generation opportunity" that "could directly increase how much chamber music, jazz, vocal, world, and community arts we hear on the radio." The article discusses how this spring the FCC will give away hundreds of full power non-commercial educational licenses. Schools and their advocates would do well to at least check out this web page from time to time to catch up on the latest.

The Stanford Center for Internet and Society reports today that Stephen Joyce and the Joyce estate have entered into a settlement agreement with Shloss: Important Victory For Carol Shloss, Scholarship And Fair Use | Stanford Center for Internet and Society. Stanford is hailing this as a victory, but cautioning that there needs to be a string of such cases to effectively make the case for fair use for scholars and creators of all types. I'm sure we'll hear more about this in the coming days. At least in the realm of the creative, fair use is definitely making some headway.

I heard Lessig talk here in Austin a few weeks ago and he said at that time that he expected Section 512's fundamental deal, not just the subpoena provision, to be attacked by the content community in the next year. He also cautioned that the ISPs were not as organized on this issue as the content industries were, and he thought it possible that basic limitations on liability could go down unless they did get organized. In this NY Times Op-Ed piece, Make Way for Copyright Chaos - New York Times, he notes that not only can the battle take place before Congress, but increasingly, before the Supreme Court. That's what Viacom is asking the courts to do: adjust the deal that everyone was happy with in 1998, but that Viacom no longer likes today.

What seems equally disturbing to me is that these are pretty brutal tactics for what was fundamentally a negotiation of the relative values of content and promotion on the Web. This is all about a business model, probably one that won't even be relevant in a few years given the fast pace of change online.

One thing I have learned from reading blogs is that there is lots of neat stuff out there in cyberspace. One of my favorite online pages is called Library Thing. I thought I was advanced for having a copy of all my favorite books posted online.

However, apparently posting book lists in this fashion is now old hat, as you can create your own list of books on Library Thing and the web page will populate the list with photo covers of the books you like. You still need to write your own review. You can link to others who have read a certain book and see what they did or did not like about the book, and you can also generate a list of recommended books that comes from the book tags that you add when generating your list of books. One could also add links to content from the Google Library Project, online at books.google.com. For example, I Capture the Castle was a perfecting charming book, and by scrolling down past the jazzed up cover you can read the first few pages and see if you might like to read the book.

Need a little something to smile about? Peter Suber reports that the Metropolitan Museum of Art and ARTstor are making Met images available for free to scholars for educational and scholarly publishing uses: Peter Suber, Open Access News. Enjoy.

Putting a much finer point on it than I did yesterday, Larry Downes compares the escalating efforts to rein in file sharing to various revolutions of the past: The revolution will be televised...on YouTube | Stanford Center for Internet and Society. He admits he's jet-lagged as he writes this, but that's one of the interesting things about being able to blog from anywhere at any time. Our first reactions are a lot more colorful than our polished drafts. I, for one, appreciate seeing the color from time to time, especially about a subject that can be as gray as copyright.

I once read that the year before the transistor *completely* replaced the vacuum tube, more vacuum tubes were sold than in any other year of their existence. I'm awful with details, so I'll accept that I may not have this little fact completely correct, but the essential meaning of it keeps me from getting too discouraged when the technology wars get really nasty, as they seem to be getting right now with content owners stepping up the pressure on just about everyone to accept their version of (and control of how we get to) the future.

Cory Doctorow annotated in red, the University of Southern California's notice to students about copyright compliance: USC Copyright Compliant letter, annotated by Cory Doctorow, for example. The notice is from last summer, but seems nicely suited to the current drive to more deeply engage ISPs, including universities, in RIAA's war on p2p file sharing.

Viacom filed suit against YouTube and Google today (press release). Negotiations weren't going well from Viacom's perspective, and since content owners have monopolies granted by the federal government, they can play hardball in what might otherwise be simple, healthy creative destruction (a la Schumpeter and a host of others).

All this added to my observations last week about MS DRM, Rubin's speech blasting Google... it all looks like the building of one of those "waves of the century" about to hit the beach in Hawaii. So is it the last year of the vacuum tube, or is it just another day in the life and death struggle of adaptation to a networked world?

An article in the New York Times titled Who owns the Live Music of Days Gone By? highlights not only the money to be made in procuring the rights to live musical performances from the past, but the litigation woes that are likely to accompany such endeavors. An entrepreneur named William Sagan (who started WolfgangsVault.com) is currently being sued by members of the Grateful Dead, Led Zeppelin, and the Doors, for streaming over the internet live concerts from days gone by that had been recorded by Bill Graham, a San Francisco concert promoter. Bill Graham's amazing collection of recordings of live concerts was sold along with his production company to Clear Channel communications, and later bought by William Sagan. Contracts (if they existed) for the recordings often did not clearly resolve the copyright issues that existed at the time, much less the issues for the future right to market the music in formats not envisioned back in the 60's.

An article in the New York Times titled History, Digitized and Abridged caught my eye this morning. There is a nice photo which shows two shelves of old books. A few (very small number) are show in white as empty boxes. Presumably these white boxes represent the small portion of books that will be digitized in a number of collections. In other words, lots of books, videos and film clips that are on the shelf won't be digitized. Why should we care? The reason is that the newer generation (think of the millennials and whatever generation comes after) of scholars use the web almost exclusively as a source. This will ultimately leave a huge gap in history. Many reasons exist for why the entire world's cultural heritage cannot be digitized, Google's efforts notwithstanding.

Microsoft has made headlines a lot lately. The release of Vista, a new Book Search interface, a scathing attack on Google earlier this week before an AAP gathering in NY, and now, this NY Times article, Searching for Michael Jordan? Microsoft Wants a Better Way - New York Times, featuring Microsoft's efforts to improve its statute in the world of online search.

I saw an interesting connection among these headlines. I've been reading about how Vista packs the biggest DRM accommodating punch of any operating system ever (Google search on something like Vista drm to get a feel for the commentary), the speech before the AAP painted Google as cavalier about copyright and MS as totally supportive of the publishing industry, and the stats in the NY Times piece show that Microsoft is near the bottom of the heap regarding the use of, and lack of recent growth of, its search features.

These pieces look like parts of a very aggressive campaign to claw its way out of its own 20th Century niche, taking no prisoners, no holds barred. It has all the hallmarks of a political campaign, including the mudslinging. Tim O'Reilly chides MS and insists it is bigger than this, that we expect more out of a player of this size. Larry Lessig believes MS is just plain wrong about Google's cavalier attitude. I certainly agree with Lessig's sentiments, but as for whether we can expect more from MS, I don't know. Perhaps MS is just as much a victim of its business model as Holly wood and the publishers are of theirs (O'Reilly's comments again, in another entry)?

I wonder whether in working together as they must have, to implement such powerful DRM controls in Vista, whether they may actually impair their own progress towards more efficient business models in the future. In fact, I often think about DRM in the context of the old adage, "give them enough rope and they'll hang themselves." Many of the commentaries about Vista's DRM suggest that it's like a suicide note... Only time will tell.

Two of my alma maters UVA (undergrad) and University of Wisconsin (Law School) are among the universities to partner with Google on library digitization projects. A complete list of the library partners
is interesting to review. If you click on the links for at least the public institutions, you can read the full contract the schools have in place with Google. What is interesting is what the university library partner can do with the digital copy owned by the university. For example, in the Wisconsin contract with Google, UW has the right to contribute the University Digital Copy to a central depository of digital works that it shares with consortium libraries. This includes the University of Chicago, the University of Illinois, Indiana University, and other major midwestern universities. All of the technological controls must also be implemented by the consortium libraries.

Evan Brown has a succinct explanation of the various parts of the new FAIR USE Act, the bill introduced in Congress last week that would make several changes to the anti-circumvention provisions to allow certain uses that have become problematic over the 8 years those provisions have been in place: InternetCases.com -- Evan Brown, Chicago intellectual property and Internet attorney. He provides a link to the bill so you can read along as he explains.

He also points out 2 problems with the bill, but not the biggest problem of all -- its likelihood, or lack there of, of getting passed. Still, this bill in some form or another has been and I bet, will continue to be introduced in every legislative session until some day, anti-circumvention is going to be modified in some ways. It may not happen until those who use DRM have given up on it in favor of other business models...

One aspect of the research I plan to do while I'm studying at the ISchool (University of Texas at Austin) involves international aspects of the adaptation to a networked world. In particular, I'm planning a soujourn in France this summer to study the French take on the future of libraries in a networked world.

To prepare, I study not only information studies, but French, and I read several French newspaper headlines/stories each day (news feeds) and some blogs about the future of research in the visual arts in France. This particular blog entry caught my eye as I was reviewing earlier entries because it illustrates the very point I was making yesterday when I posted the piece about the need for genre by genre development of fair use best practices: Le droit aux images a l'ere de la publication electronique.

Even if you don't read French, you might visit the post because the image that is the subject of the post speaks volumes (precisely the point, isn't it?). The post is about how the exercise of author's rights in images affects publication of works that are image-based, such as the one described in the post, an online retrospective review of art from the period, 1988 - 1999. The author of the post asks, in commenting upon the "vast white spaces" left by the omission of every image in the article, "would we accept seeing a review of literature shaved of its citations?" This comparison brings to mind as well the current struggle between the Joyce scholar, Carol Shloss, and the Joyce estate, over her ability to include in her research results (a book and Web site in her case) quotations from copyrighted works that illustrate and support the conclusions she draws.

Those who study and teach in fields that require the use of images (art, art history, architecture, media studies, etc.) could put forward a strong statement of fair use principles, like the Best Practices document I mentioned yesterday. This is a group that has for way too long labored under a very difficult copyright-related burden to carry on its important work.

About a year and a half ago, several folks involved in trying to create more breathing room for fair use in the documentary film business worked together to come up with a set of principles that they believed should represented the scope of fair use within that industry. They published these principles as Best Practices in Fair Use. At the time this signaled, along with the development of some divergent court holdings with respect to the scope of fair use in different creative contexts, that maybe a "genre by genre" understanding of fair use would evolve, or should evolve.

Now two additional developments reported at Info/Law � Even Better News on Fair Use and Insurers confirm the value of this approach. The Best Practices are being adopted as standards for insuring productions. Insurers are one of the conservative "gatekeepers" whose demands for reduced risk drive development of the permission culture.

Responsible statements of fair use best practices for different segments of the entertainment, artistic and musical businesses offer real hope that we can back away from the precipice of the permission culture, where every single little piece of anyone else's work included in a new work must be cleared. Of course, clearing everything is more often than not impossible, which results in a reduction in the creation of new works or their scope, precisely the opposite result from what we expect from copyright. But this result is not surprising when the rights of owners are interpreted so broadly as to exclude any use of others' materials whatsoever without permission.

A big hand to those who have worked to create the first set of Best Practices and encourage their adoption more widely within the documentary film industry. Now we need to see similar efforts among other segments of our creative industries. Closely related to this is the magnificent effort to encourage artists, musicians and all creators to "tag" their online works with Creative Commons licenses that make explicit the range of rights the creator gives the public, affirmatively enabling sharing reuse and remixing.

The RIAA threw down the gauntlet to their partners in fighting copyright infringement this week. Illegal downloads of MP3 files have been a problem for the Recording Industry Association of America (RIAA). In a highly debated strategy which was commenced this past week, the RIAA has asked colleges and universities to forward a letter to students as a prequel to the RIAA filing suit against the student. Litigation against the student could only commence once the RIAA has filed a John Doe lawsuit to obtain the identity of a student, but this is not made clear in the RIAA letter. The identity of the student could only be produced if the school has retained the computer logs long enough to allow them to match a time, date, and IP address with the alleged act of infringement.

To date, colleges and universities have been good partners in the battle against illegal downloads, doing their best to educate students about copyright infringement and encouraging the students to use legal music download services such as iTunes. Under the Digital Millennium Copyright Act (DMCA) schools that provide internet service to their students are granted immunity from charges of copyright infringement if they are merely acting as a conduit. In order to retain this immunity, the schools as Internet Service Providers are required to educate their users about copyright law, and to also have a policy in place to deal with repeat infringers of copyright law.

Thank you Georgia, for the warm welcome to the world of blogging. While I am used to creating and updating web pages and publishing newsletters online, this is my first attempt at blogging.

When Georgia (who has taught me much of what I know about copyright) suggested that I become a guest blogger, I was at first a bit dubious. Despite being of the 21st century, I do spend most of the day at work tethered to a computer. In an attempt to lead a balanced life, at home I read my New York Times in print, use a fountain pen, mail letters with hard copies of photos to my Mom (not digital) and most of all read books in their analog format. So, I wondered about blogging and whether it would be a source of information that I wanted to add to my list.

Once I started to read Georgia's Lifelong Learning Blog I realized I could really have fun with the world of blogging. In my next post I will write about some of the great information sources I have learned about from Georgia's blogging.

I want to warmly welcome our first guest blogger, Peg O'Donnell, to Collectanea! She practices in the General Counsel's Office at Catholic University, just a few metro stops down the road from UMUC and the Center for Intellectual Property. Peg's practice is quite a bit broader than mine. Catholic's legal office is small so everyone handles many legal subjects, but she has nevertheless become quite the copyright expert! She's also the creative force behind one of the best University legal office Web sites. She's going to be our guest for the month of March, so please visit frequently as, between the two of us, we'll be posting twice as often.