April 2007 Archives

It's a good thing titles can't be copyrighted, because I happen to like this one and the book to which it is attached, and it seemed to fit. (If you don't recognize it, it's the title of the fourth of the five books in Douglas Adams's Hitchhiker's Guide to the Galaxy "trilogy", which may explain something about my sense of humor.)

Anyway, I want to thank Georgia for having invited me to participate over this past month. Like Peg O'Donnell, my predecessor in guest bloggery, I've found it to be both educational and a lot of fun.

Before I pass the baton on, I'd like to post one more international note, to Georgia: I'm glad to see that France, your imminent destination, escaped largely unscathed in this year's Special 301 Report, save for some minor chiding about its preference for interoperability over digital rights management.

Bons voyages, and, in addition to the bibliotheques, don't forget the bouquinistes, bistros, brasseries, and boulangeries!

Steve, I can hardly believe that it's been an entire month since you joined us here at Collectanea. I have so enjoyed your contributions and comments. I hope you've had as much fun blogging as I have. Please feel free to drop in from time to time. We'll always be happy to hear from you again, as a contributor, or as a commenter. See you around!

Georgia

The folks at American University's Center for Social Media, who have been doing good and interesting work on the subject of fair use in documentary filmmaking, have lately turned their attention to "participatory media". In a recent study, "The Good, the Bad, and the Confusing: User-Generated Video Creators on Copyright", they found some disturbing results. College students and recent graduates who create and upload videos to such sites as YouTube "showed themselves universally under-informed and misinformed about" copyright law and fair use, tending to think in "binary, good-bad categories" about what is and is not permitted:

In fact, respondents generally did not understand elementary facts about copyright, even though several noted that they had received both training and warning from professors about copyright use. . . . Although the great majority of survey respondents (76 percent) believed that the fair use doctrine permitted them to use copyrighted materials, none of the interviewees was able to describe this doctrine accurately. Two said that it stipulated a fixed amount of time, e.g., "over 15 seconds of someone else's song," or "less than 10 seconds." Another said that fair use is available "for purposes of public education," still another "if it's for a class project." The majority indicated that fair use would apply if there is no commercial transaction. "I believe in fair use laws," one said. "If I create something as an academic exercise, and never pursue monetary reward, then I believe I should be able to utilize other people's work." None of these beliefs is accurate. . . . [One] distinction on which respondents relied to justify or explain their practices was between an obligation to pay and an obligation to give credit or recognition. While payment was largely unjustified in their opinion, these users were very concerned about attribution as a sign of showing respect for artistry.

Even more disturbing: more than half the participants were studying or working in communications- and media-related fields.

To be sure, copyright law is neither clear-cut nor intuitive, but you'd like to think that all of the copyright education we've been doing in connection with P2P file-sharing would have had at least a little impact, particularly on those students interested in pursuing careers in copyright-intensive industries. But whether they result from simple lack of knowledge about, or self-rationalizing lack of respect for, copyright, it's views like these that fuel industry and Congressional calls for tighter restrictions and increased protections.

It was a big week for copyright. Events were reported all over the blogosphere. My friend and fellow grad student, Carlos Ovalle, has a nice roundup on his blog, Copy This Blog, where he reports several unsurprising legal opinions based in the sad music industry war against college students, and in a post a few days earlier, the related decision of Ohio University to ban p2p software on its system.

MPAA's former head, Jack Valenti, died this week. Lawrence Lessig offers an interesting memoir.

And the Stanford Center for Internet and Society posted a note about a decision that determined that downloads were not performances for ASCAP/BMI/SESAC royalty purposes.

Tobe Liebert, one of my favorite law librarians (I have lots of favorite law libraians -- our UT Law School Library is one of the best!), posted a note about Siva Vaidhyanathan's explication of his position regarding the three serious dangers of the Google Book Search Project, well articulated and succinct. His argument raises important questions about a future that includes wildcard projects like Google Book Search. If you have a chance to see Siva in person, don't miss it.

On another note, I am winding down my first full year of grad school. Classes end next week. Papers are due, presentations will be made, files of printed articles will be dumped (recycled, of course). It has been a really amazing experience for me, one that still astonishes me, nearly 9 months into it. I'm registered for the summer session and for the fall. I shift focus next year to research, having been accepted into the Ph.D. program. In the meantime, I head off to France to do a little bit of research, sort of getting my feet wet in the Seine (and the Cote d'Azure). Whatever I conclude based on my little sojourn will be reported through the CIP, perhaps even here on the blog. I'm going to write a paper, though I have to admit, I call it that only reluctantly, because I am planning to put my money where my mouth is -- I'm focusing on the future of the book, and I'm going to place all my research data, analysis, results and predictions in forms that explore that future. So, it will be fun, as well as instructive for me to figure out novel ways to report research in progress. I hope you'll enjoy that exploration too. The future of libraries is affected directly by the future of books so it is in our interests to pay attention to the expansion of the expressiveness we experience in books today.

Sorry if I sound like a "broken record" about all this international stuff, but I really am intrigued by the United States government's seeming efforts to "export" a brand of copyright law that is less "balanced" than our own, and I have to wonder whether the plan is to then "re-import" it once it's firmly established elsewhere. But maybe, just maybe, I have it all wrong.

In celebration of World Intellectual Property Day, the U.S. State Department yesterday issued a statement under the heading "Copyright Violations Threaten Cultural Diversity; Local artists silenced when pirates steal revenues, industry representatives say":

Washington — Music, film and publishing industries from around the world lose billions of dollars annually due to inadequate legal protection of intellectual property, but the real victims might be struggling artists in developing countries, according to international organizations and government anti-piracy agencies.

And who are those "international organizations" so concerned about "cultural diversity" and the rights of "struggling artists in developing countries"? Among the most prominent cited are our own RIAA and MPAA. Indeed, copyright is "'a key tool for creating incentives for investment in the creation and distribution of cultural materials – and thereby promoting cultural diversity,' said Neil Turkewitz, executive vice president of the Recording Industry Association of America". Plus, while "American cultural products, such as music recordings and movies, are a frequent target, local industries and artists are the primary victims of inadequate law enforcement, industry associations say."

Good thing, then, that the "U.S. administration is leading an initiative called STOP – Strategy Targeting Organized Piracy -- to help protect intellectual property at home and abroad. It is posting specially trained prosecutors and FBI agents at American Embassies in Asia, Eastern Europe and other regions, and is working with other nations, the private sector and international organizations to promote strong intellectual property laws. Several U.S. government agencies, including the U.S. Patent Office, the Copyright Office, the Homeland Security Department, U.S. Trade and Development Agency and the FBI provide a variety of training and technical assistance programs on intellectual property protection for international participants."

Next up: Monday's issuance of this year's "Special 301 Report", in which the U.S. Trade Representative will outline the (in)adequacy and (in)effectiveness of intellectual property protections around the world and, no doubt, highlight our special concern for world music. Look for it here.

Those feeling a post-World Book and Copyright Day letdown will be pleased to learn that today is World Intellectual Property Day, sponsored by the World Intellectual Property Organization and intended "to encourage respect for the IP rights of others":

For many people, the connection between intellectual property and creativity is far from obvious. The word creativity conjures a world of artists and music makers, of poets and problem solvers. Whereas intellectual property all too often summons images of gray-suited lawyers, locked in litigation. But look more closely, and it quickly becomes clear that it is the intellectual property system itself which sustains and nourishes those creators.

If you aren't already partied out and would like to join in the celebration, WIPO encourages you to "organize concerts or other public performances centered around this year's World IP Day theme ["Encouraging Creativity"]" and "arrange for performers to deliver messages encouraging respect for creators and creativity", "mount exhibits at local shopping malls explaining how consumers benefit from strong intellectual property systems", or engage in any number of other fun and exciting "suggested activities".

If only my gray suit were back from the dry cleaner after Monday's raucous festivities . . . .

This is indeed big news! The Library of Congress, as represented by newby Matt Raymond (7 months on the job) is authoring an LOC blog and, hey, it looks like it might be pretty good! Check it out: Library of Congress Blog (Library of Congress).

Three recent, interesting, and quite possibly related news items:

Viacom has dropped its (successful) effort to have a parody of the "Colbert Report" pulled from YouTube, apparently acknowledging that the parody is a fair use under U.S. law.

In a lawsuit filed on behalf of 11 recording companies in China, where there is no DMCA, the "No. 2 Intermediate People's Court" has ordered Yahoo! China to pay $27,000 in copyright damages because "pirated" music could be located through its search engine.

And Michael Geist, a Canadian law professor, offers an interesting take on U.S. efforts to "export" an industry-centric brand of copyright law, including our longer copyright terms and "anti-circumvention" protections, but, apparently, not our concept of fair use or DMCA-style safe harbors.

I just learned that Steve McDonald, our guest blogger this month, and General Counsel at Rhode Island School of Design, will be honored by our National Association of College and University Attorneys (NACUA) by being named a Fellow of the Association. This award is given to members of NACUA, from time to time, to recognize exemplary service over an extended time by individuals who have brought distinction to the practice of law on behalf of college and university clients, whether through the quality of their scholarship, the breadth of their service, or through other means. Steve certainly qualifies on all counts! Congratulations Steve!

This short article is just brimming with ideas about how an author can better integrate his or her creative works into the flow of creationCopy This Book — Jonathan Lethem on Life as a Copyfighter -. Although I think there's a lot to be gained through Creative Commons licenses, for example, the fact that by using them, one's choice to share more broadly than the law's default provisions would allow is noted and CC works are searchable on the Web, that although there are many choices of CC license, one can recognize a typical set of rights with the abbreviated forms that are becoming common, still, Lethem's idea that people should think more creatively about how they want to to share their works is not without its appeal. At least it's a call to recognize how much we depend on the work of others, rather than persist in the idea that we create out of thin air and thus have a moral right to claim such broad, disabling exclusivity in our creations as the law now permits.

This has been in my thoughts for a long time, that the original idea of copyright was to provide just enough of a monopoly to bring about creation. Monopoly is not really a desirable way to do things, but where we've determined that the benefit outweighs the obvious drawbacks, we should at least limit the monopoly to only that which is required. The millions of people who are creating and giving broad user rights to the public are testament to the notion that we are over the line in what we provide authors. The harm done by such over-protection is more obvious every day.

It isn't noted on my calendar, but it turns out that Monday is the twelfth annual World Book and Copyright Day, brought to us by UNESCO. Apparently, according to a statement from UNESCO's Director-General, it's intended as an "opportunity for political decision-makers, economic operators and civil society stakeholders [um, could that mean "readers"?] to pay tribute to that unique tool for expression, education and communication: the book." Oh, and "as there can be no book development without copyright, the celebration of the Day has always been closely associated, from its inception and throughout all these years, with an awareness of the importance of the moral and heritage protection afforded to works of the human spirit and their creators." Perhaps not quite as quotable as Jack Valenti, but I think I get the point.

If you are unfamiliar with the idea of the Long Tail, I urge you to visit the Website where this story is posted for more information generally, and of course to read this little note about lost opportunities, lost expression, lost creativity: The Long Tail: Long Tail enemy #1. It's about the failed effort to clear rights in music that was such an integral part of the 70's television show, WKRP in Cincinnati. The creative possibilities today involving new uses of existing materials just do not mesh with yesterday's processes, procedures and the law that backs them up. There are many other even more compelling stories than this one, many of which Lessig and others have chronicled. Though the subject matter is not in the same league with real war, it reminds me nonetheless of the lines from Blowin in the Wind, "How many times must ... before..."

An interesting story, if you haven't been following it -- John Palfrey - Blog Archive - Wendy Seltzer's NFL Experience: Just Half-Time, or Game Over?. Wendy is giving a talk today on the story of her experience dealing with the DMCA's notice and takedown procedure. The talk will be posted after the event.

In a forthcoming article, "Lawful Personal Use," University of Michigan law professor Jessica Litman argues thoughtfully for "a view of copyright in which readers and listeners are as important as authors and publishers" and in which many of the uses we all routinely make of copyrighted materials would be deemed noninfringing -- indeed, wholly outside the scope of the copyright owners' exclusive rights -- regardless of whether they would satisfy the fair use standard:

Reading, listening, viewing, and their modern cousins watching, playing, running, and building, are central to the copyright scheme. We knew that once, but forgot it sometime within the past generation as the rhetoric of copyright increasingly characterized personal uses as piracy and theft. If we think about personal use as a guilty pleasure that is probably morally wrong, we’re going to lose it. If we recall that encouraging personal use is an objective that’s crucial to the copyright system, we may find the will to defend it against increasingly forceful encroachment.

And after all, she notes, "laws that discourage book reading end up being bad for book authors" as well.

Litman comes to no definitive conclusions as to what the precise scope of "lawful personal use" should be, but her article is well worth reading, and the debate she has started is well worth engaging in.

Just read a very interesting article at Salon, Tangled up in Seuss | Salon News, in which author Dan Brekke tells the story of a mashup of Dr. Seuss lyrics sung in the 60's style of Bob Dylan. On another site, one can access the recordings (still, but probably not for long). By the way, Dylan is not involved in any way, either in the creation, nor in the cease and desists, but you'll be surprised at how good an imitation they are.

The article is considerably more thoughtful regarding its fair use analysis than I expected, and tells both sides of the story quite well. It is sad to say that the conclusion, that the artist who created the mashup probably would not win his case based on current precedents and the facts about his particular use of Seuss' content, is probably correct. But Brekke goes on to note that this fact has spurred serious efforts lately to redress the tight strictures on creativity that such interpretations of the law have fostered. At least partly because we have such incredible ability now to take existing works in unanticipated creative directions, many feel that fair use must be given more breadth. I would go even further. I would advocate a loosening of the derivative right itself. For example, there could be a shorter limit on its duration (I think Lessig has suggested this) or the right could encompass less than it does now. Alternatively, some rights to create derivatives could be acquired by those who wish to use a work creatively by means of a statutory license, as the right to create a cover recording of already released recordings are acquired today. Copyright owners usually do not support that kind of allocation of their interests because it takes away their flexibility to say no, and to demand what the market will bear, but that's just the point: the allocation that most encourages creativity is not the allocation that always favors the current creator over those who are coming behind her.

As we've noticed this year, there have been numerous indications that things may be shifting a bit in a positive way with respect to the business models of the media companies that have most resisted such change. We have discussed some of these indications in earlier posts here on Collectanea. Most are optimistic postings. I tend to be an optimist. But lately I've encountered a few things that bring out my pessimistic (some would say, realistic) side. One in particular seems to signal that even when large media companies finally engage the future and embrace (or seem to embrace) new technologies, their ways of thinking about their businesses can remain largely unchanged. MySpace illustrates this point.

Originally conceived in a way that fully integrates the functionality of Web 2.0, the idea that content can be mixed and matched and shared and reused by applications all over the Web, MySpace now finds itself chafing at the openness of this model. It allows MySpace page owners to link to pages where content is served with advertising. In the complex way revenue streams work on the Web, this means to MySpace owner, Rupert Murdoch, that other companies are making money from the content that "belongs" to him (ie, his users' content). So he has moved to block his users from linking to rival sites that display content with advertisements. In Silicon Valley, this is not playing very well, as might be expected. I wonder whether it suggests that although we may not see copyright as the battle cry in this kind of dispute, the underlying issue has simply resurfaced in a new way. It is still the content owner challenging the upstart technology wishing to make money from some use of the content. Actually, in this case, it's not technically his content under copyright law, but it's his content in the sense that he seems to think of his users as a commodity whose content he should be able to control. It will be interesting to see what effect if any this has on the commodified user.

In a story in Paris' Le Monde, Le Monde.fr : Accord de partenariat entre l'AFP et Google, the French daily reports that Google and the French news agency that sued Google in March 2005 for copyright infringement have settled their differences, and the suit has been dismissed. Unfortunately, the story reports that the terms of the settlement are secret (surprise!). It doesn't offer a lot of details, but it does suggest that Google will gain broader access to the Agency's holdings than it had under its claim of fair use (headlines, images, maybe a short blurb). This would be consistent with the kinds of deals that Google has negotiated with copyright holders in the US in connection with Google Book Search, where it claims a basic access under fair use to digitize in order to represent a work in its index and to show snippets, but negotiates with copyright owners for rights to provide broader access to content. I looked for confirmation of this story in English-speaking venues but have not seen it yet.

I read with interest today that the President of the Bibliotheque National, Jean-Noel Jeanneney, has apparently been forced to resign:Jean-Noel Jeanneney quitte la presidence de la BnF - Tour de Toile du BBF. You might wonder why this seems important to me, unless you know what I'm studying at the iSchool...

But, more generally, it's of interest because Jeanneney is an impassioned critic of all things Google. In fact, in his slim volume, Google and the Myth of Universal Knowledge, he says at one point, something to the effect, "Whatever Google does, we should do the opposite."

His principle criticism was that selectivity and organization should be at the heart of the process of digitization, and of course, Google's goal is to digitize everything and let the users sort it out through search, tags, bookmarks, etc. He also criticizes our reliance on the market to do what he thinks should be done with public money in Europe. At the core of Google's undertaking, and implicitly rejected in France's efforts that so far involve only public domain works, is reliance on fair use to justify digitizing books still in copyright. Being an employee of a Google Library partner, I'm not neutral on the matter, but I must say that the book is very well written and raises good points. Nevertheless, one commenter on the blog where I saw this note about Jeanneney's departure seemed to suggest that there might be a connection between the fact that Google had so far digitized 10 million books and the Bibliotheque National, 100 thousand, and Jeanneney had essentially castigated Google for performing well. While neither of the figures is likely accurate, they get the general gist of the point across.

As always, there's no doubt a lot more to the story than initial reactions suggest, but I wonder whether Jeanneney's departure signals an opening for a new attitude towards mass digitization projects in France. Not coincidentally, I am headed there in 5 weeks to interview several librarians about their views of the future of the library in France. I have both Bibliotheques Nationales on my agenda, as well as 2 University libraries and a municipal library (Lyon). It's an exciting time to be thinking about the future of libraries, and May is a fine month to visit Paris.

Copyright genealogy has always been notoriously difficult. With no single, central registry keeping track of what was copyrighted, whether the appropriate formalities were followed, whether the copyright was renewed, whether the author is alive or dead, whether the copyright was transferred (by assignment, bequest, or otherwise) and to whom, or any of the other factors that might be relevant, it can be almost impossible to determine the copyright status of a given work. (Two good sites that tell you what you need to know are available here and here, but neither they nor anyone else can tell you where to look for all of the necessary information.) Indeed, this "orphan works" problem is so thorny that it took the Copyright Office more than 200 pages to describe it and a proposed solution in a recent report.

Some significant help is now available. The Chronicle of Higher Education reports that Stanford University has created a searchable Copyright Renewal Database, covering renewal registrations of books (but not other works) published in the United States between 1923 and 1963. That's a key period, as books published in the U.S. before 1923 are now in the public domain, and works published in the U.S. after 1963 were (if necessary) automatically renewed.

Many thanks to the Cardinal for this valuable service.

It's official. The third largest music distributor, EMI, announced today with Apple's Steve Jobs that it would offer its entire catalog DRM-free on iTunes: EMI, Apple To Sell DRM-Free Music for $1.29/song. Et voila, do we have the beginning of the end for DRM? It will depend (lawyerly answer, no?). But for the moment at least, it's worth celebrating.

It almost seems like an April Fool's joke. The Washington Post reports that four high school students are suing Turnitin.com, a service that checks student papers for plagiarism, for copyright infringement. They're seeking $900,000 in damages -- the statutory maximum of $150,000 for each of six papers, which, naturally, the students registered with the Copyright Office (presumably) before turning them in. The crux of the students' argument seems to be that Turnitin "willfully" violated their "instructions" not to archive their papers in its database. Such instructions would, arguably, defeat any implied license that Turnitin might otherwise have had under the circumstances.

But while it may seem silly (at best) for the students to be "making a federal case" out of this, their lawsuit actually has potentially serious implications for electronic databases generally. What Turnitin is doing is not terribly different from, say, Google's library project or the many other such databases that libraries and scholars have been assembling in recent years. While all of these databases unquestionably make use of copyrighted material, they quite arguably are doing so in socially useful, "transformative" ways that have no appreciable impact on the copyright owners' ability to exploit the value of their works. In fact, if anything, Turnitin's own database would seem to have even less such impact, because it offers its users virtually no access at all to the source material. Thus, a win for these students could be bad news for fair use.

As Peg said last week as she bid us farewell, Steve McDonald, General Counsel for the Rhode Island School of Design, or RISD, as it's known, will be our guest blogger for April. I want to welcome Steve today, and I look forward to hearing Steve's take on events, and seeing more than just a glimpse of Steve's great sense of humor mixed in with the more serious fare that we've come to expect when the subject is copyright!

Steve is very involved in our National Association of College and University Attorneys (NACUA), Cornell's Institute for Computer Policy and Law (ICPL), and The Stetson Conference on Law and Higher Education, among others. Given his many commitments in addition to his RISD responsibilities, we are very honored to have Steve as our guest. Welcome, Steve!