May 2007 Archives

Lolly, it has been such a pleasure to have you here with us through the month of May. I have enjoyed reading your posts, and I'm sure our readers have too. I hope you'll drop back by from time to time -- you will always be welcomed. You have such a unique perspective given your background in the Law Library, your work with the Library of Congress and your years of teaching experience.

But for now it is time to say good bye and wish you a very good summer. I hope you'll have some time to relax a bit and slow down! Thanks again!

Georgia

A nonprofit organization recently challenged the Smithsonian Institution’s use of copyright notices and other warnings in conjunction with its images on the Smithsonian website. The Smithsonian is a government entity and section 105 of the Copyright Act states that copyright protection is not available for “any work of the United States Government.” If the image is produced by an employee of the Smithsonian, why does it claim copyright?

The question is a bit complicated, naturally. Works produced by Smithsonian employees who are federal employees are considered to be in the public domain. Trust fund employees who create works may result in a copyrighted work which the Smithsonian may own or may share with the employee. See Protection of Intellectual Property.

Nonetheless, when one goes to the Smithsonian website to view the images, there is a detailed images copyright policy http://www.si.edu/copyright/ which begins by saying the “Content is protected by Intellectual Property Laws” and is the property of the Smithsonian. On the other hand, fair use is permitted. (Is that not the law for copyrighted images?) More importantly, if the Smithsonian is a government entity would the works not be in the public domain anyway?

A detailed Image Reproduction Fee schedule is available on the image pages on the website.
Again, if the works are public domain why the fee schedule? The following statement appears on the Permissions page:

Licensing and imaging fees directly support our collections and projects. Licensing also helps to maintain the integrity of our collection by regulating where and how our images may be used. Smithsonian Libraries provides free and open access to its digital images and the images may be freely downloaded for personal, research and study purposes only.

No wonder there is some confusion about whether the Smithsonian Institution claims copyright in its images.

On May 19, 2007, Public.Reource.Org announced on its website that it had taken matters into its hands and downloaded almost 6300 Smithsonian images “of national significance” and uploaded them onto flickr.com. Its stated purpose in taking this action is to get the Smithsonian to adopt an online distribution of images policy that is better aligned with its mission.

The Smithsonian’s fee for use of images raises many issues for libraries, archives and scholars who want to use images in their publications. Are these publications commercial? Does a scholar who uses an image in a scholarly monograph need to pay the fees because the book is published by a commercial publisher? More importantly, should these images not be in the public domain – they are part of our national heritage.

There are many rewards, but also certain obligations that come with public status. Just as the U.S. Congress could not turn the video from congressional hearings into copyrighted materials, so our Smithsonian Institution lacks the right to encumber the public domain that is our nation’s attic.

See Public.Resource.Org

Over the past few days, a very interesting discussion has taken place on the listserv for Intellectual Property professors, and that is whether a work must be complete before it can be infringed. Examples of musical works such as jazz compositions were discussed along with early versions of literary works. This made me think about libraries and archival collections that hold literary manuscripts. Certainly, in the United States, before a copyright owner can sue an infringer, the work must be registered with the Copyright Office.

Suppose that an author donates a manuscript to a library and then continues to work on the novel, produces several more versions and then publishes a final unregistered version on a website. If the author registered the copyright in the version of the work contained in the donated manuscript, and someone infringes the later novel, does the earlier registration provide statutory basis for suit against the infringer? Murray Hills v. ABC Communications, 264 F.3d 622 (6th Cir. 2001), held that registration of an earlier version of a work will not support a claim of infringement against a later derivative version of the same work.

However, it likely depends on whether the infringer copied material only from the later version that does not appear in the donated manuscript version. Should authors register successive versions of a work? Perhaps, but this would be rare in the world of literary works.

This has some importance for academic libraries and other archival collections that receive donated copies of works and seek to reproduce them for reserve collections rather than use the later published version for which the library would have to seek permission at some point. (Now, lets assume that the published version is registered for copyright but not the earlier donated manuscript version.) Librarians have often asked whether using earlier versions for reproduction avoided this question assuming that later versions are separate works. Typically, later versions are not separate works. If the material in the donated earlier version later does not appear in the published version, then perhaps they are two separate works, but this is not the normal way in which authors work.

Thus, libraries really cannot rely on donated earlier manuscript versions of published works as freeing them from copyright concerns. The only exception is if the earlier version is so different from the published version that it truly is a separate work.

Last week the 9th Circuit held in the Perfect 10 v. Google case that use of thumbnail images for a visual image search engine is fair use. Does this sound like de ja vu? Well, in early 2006 a California federal district court appeared to ignore the earlier holding by the 9th Circuit in Kelly v. ArribaSoft which first dealt with the issue of use of thumbnail images in a visual image search engine and found that use was fair use.

Perfect 10 publishes images of nude or nearly nude “natural” women. It sued Google for copyright infringement claiming that Perfect 10 had a new market for thumbnail images – for use on cellphones. Instead of buying the image, however, users could now download the thumbnails from Google. [Don’t even get me started about why anyone needs an image of a”nekked” woman on a cellphone as a further distraction when driving an automobile!] The district court in Perfect 10 was persuaded that Google’s use of the thumbnail images likely infringed Perfect 10’s copyright and issued an injunction. The 9th Circuit has now reiterated its ArribaSoft holding: use of thumbnail images in a visual image search engine is fair use.

Moreover, the court noted how important search engines are to the public. It also highlighted the fact than any potential lost sales of thumbnails was speculative at best. The court’s decision also seems right on technology grounds: a frame or in-line link is not a reproduction but is merely a pointer to the site on which the photograph is displayed.

So, this raises questions for me about the Google Library Project and how its associated pending litigation may be affected by the Perfect 10 ruling. Is copying an entire book fair use when the purpose is to create an index and no user would be able to access the entire book? Are search engines so valuable to the public that a court will hold that the reproduction that normally would have been problematic is now fair use? Is this the way all indexing will be done in the future and thus technology dictates a similar ruling?

I am in France at the moment; typing in ... the municipal library in Lyon. The keyboard is way different! Hunt and peck or redo every 5th letter... Anyway, even here with little access to the Internet (the friend I am visiting doesn't do computer stuff), still, about half of my friends emailed me to watch a YouTube video at www.youtube.com/watch?v=CJn_jC4FNDo (that was hard!) about fair use, a mashup of Disney characters explaining the concept. I cannot watch it at the moment (no earphones at the computer), but apparently it is quite good. So, go watch, enjoy, and at worst, I will know about it in a few more days when I get back to my world of constant connection...

Oh, and I have an interview with an administrator here (at the library) who, I hope, might have some really wonderful news about digitization projects here -- perhaps a major step forward for the biggest city library in France! I will know more tomorrow. A bientot!

Over the past few weeks, it has been interesting to watch the news about YouTube. Only this morning NPR reported that the Department of Defense was barring use of YouTube by our troops in Iraq. My mind raced -- because of copyright infringement? But no, it was because soldiers are using too much bandwidth.

There are serious copyright concerns about YouTube, of course, and now media companies are suing for copyright infringement. When YouTube began hosting the equivalent of home movies, it was great! There were no copyright concerns because the work being posted was original. Quickly the posted videos began to include music to accompany the video, and recorded music at that. Clearing the rights to include music to accompany a video is very complicated and my guess it that most posters did not clear the rights. One would have to clear rights with the composer for the performance, the synchronization rights for playing the music with the video and with the owner of the sound recording copyright for reproducing the work and for digital transmission of it. And that is just the music!

Now YouTube often includes standard television shows, TV advertisements and motion picture clips. While it is wonderful to be able to catch these on YouTube, does anyone really doubt that it is copyright infringement? Copying and transmitting an etire work? Even clips which might be fair use in some instances are unlikely to be fair use based on the four fair use factors. Face it, the purpose of YouTube is entertainment -- entertainment that I enjoy very much, but we all have to recognize that posting copyrighted works without permission is infringement.

Lolly

With the purchase of YouTube by deep-pocket Google, litigation over copyright infringement is likely to increase until and unless YouTube does develop software that adequately screens out copyrighted works and prevents their posting.

Just noticed an interesting entry at the Institute for the Future of the Book (if:book), if:book: chromograms: visualizing an individual's editing history in wikipedia that connected up for me with an article I had read earlier at Peter Brantely's blog, shimenewa, Recontracting authors' rights.

Peter was commenting upon the marvelous possibilities for research that open access provides -- not merely access to results, but access to a rich data treasure that can be mined for connections, where the value is in the collection rather than the individual work. The if:book note is about just that kind of mining: researchers at IBM are mining the very open Wikipedia for information about how editors work, how they manage a peer production project.

Open access is not an end in itself. It is instrumental. It admits possibilities that no one has thought of today. These possibilities are the heart and soul of research. Open access enables the heart and soul of research. Freely accessing others' writings is not the payoff for open access, it is a small, first step, a door through which creativity enters. It is worth pursuing. It is worth spending scarce resources to make it possible, not so an article can park itself in an institutional repository, but so that someone who isn't yet born can connect up some dots some day because the article and a gazillion other things were there for her to ponder, search, mine, analyze, ...

If you have loved the webcasting royalty wars and threats to Internet radio -- stay tuned! It appears that once again the recording industry is gearing up to lobby Congress to expand public performance rights to regular (terresterial) radio.
See Hollywood Reporter, May 9, 2007.

For long and complicated reasons, sound recordings do not have public performance rights. When radio stations pay royalties for playing records on the air, the blanket annual royalties they pay to ASCAP, BMI and SESAC go to the composer of the musical composition performed on the recording but not to the record company or performers. Over the years, the recording industry has lobbied to provide peformance rights for sound recordings.

In 1995 and then again in 1998 the recording industry was successful in getting Congress to provide provide performance rights for sound recordings when that recording is transmitted via digital means. The result was an amendment to Section 106 which added a new subsection (6) to the Act. Then the fun began with disputes over royalties for webcasting and including sound recordings on websites.

Now that the recording industry is receiving performance royalties for digital transmissions of their recordings paid to Sound Exchange, one might think they would be satisfied -- not so apparently.

Both record labels and artist groups now want performance rights for sound recordings played over terrestrial radio. The Recording Industry Association of America (RIAA) is leading the charge along with some other associations and SoundExchange.

Heading the opposition is likely to be the National Association of Broadcasters.

Mike Madison discussed this in his blog a couple of days ago. See Madisonian.net. Mike raises some interesting philosophical questions to which I am adding some additional ones.

1. If public performance rights are afforded to copyright holders, why should sound recordings be excluded generally? In other words, why award rights only for digital transmission of these recordings?

2. Is the major objection really that the public has come to expect free terresterial radio? Somehow radio stations have been able to pay royalties to the composer for years and years.

3. Are the real objections based on how high the royalties are likely to be based on the webcasting royalties? It is estimated that many college radio stations and other small broadcast entities will not be able to afford performance royalties for webcasting and thus will not webcast at all. If the same is true for terresterial radio, will stations simply disappear?

4. Don't record companies earn enough money from sales of their works both in CD and as downloads and in going after P2P file sharers?

5. Will television stations be the next target? They also pay annual ASCAP, BMI and SESAC royalties to the composer.

6. Because other countries provide public performance rights for sound recordings generally, does it mean that the United States should do so?

7. Should there not be some focus in this debate on what is good for the public?

Educational institutions will be affected by this issue through the college-run radio stations, Stay tuned!

Jack Valenti, former long-term chair of the Motion Picture Association of America, died at the end of April. His passing made me reflect on a number of issues.

For years Jack Valenti lead the charge for copyright holders championing copyright term extention, especially for motion pictures. He was a well known figure in copyright law and is remembered fondly by many. Valenti presided over the MPAA from 1966-2004, a remarkably long tenure punctuated by amazing technological changes.

I remember him primarily for some of his more outlandish statements which may have contained a grain of truth.

(1) After the Sony decision, Valenti announced that the Betamax would be the death of the motion picture industry. He totally missed the video rental business that played a major role in ensuring the continued economic viability of the movie industry.

2. In support of the 1998 Copyright Term Extension Act, Valenti testified before Congress that a copyright term "one day short of eternity" satisfied the limited times provision of the U.S. Constitutution. Many of us believe that a much shorter term is called for by the Constitution.

Mr. Valenti's stalwart efforts on behalf of the motion picture industry sometimes resulted in interesting jokes. After the CSS encryption code was broken and MPAA members successfully sued website owners who even linked to the DeCSS decryption code (see Corley)
programmers found many interesting ways to use the code to produce other copyrighted works such as T-shirts, haiku, square dance songs, dramatic readings and my favorite, a stenograph with the DeCSS code embedded on a his photograph.

While those of us who work in the public interest for strong fair use privileges for users of copyrighted works may have disagreed with Valenti on almost every issue, it is clear that he served his community long and well.

His autobiography, This Time, This Place: My Life in War, the White House, and Hollywood, is due out this fall.

Yesterday morning, I had the pleasure of hearing a featured story on NPR about fair use. Stanford blogger, Anthony Falzone links to the story, so if you missed it, you can listen now: Fair Use Project Profiled on NPR's Morning Edition | Stanford Center for Internet and Society [beta site].

The degree to which copyright and fair use are becoming part of mainstream consciousness is alternately amazing and horrifying. If you teach it, it's fabulous to be able to bring in news pieces, comics, magazine articles, etc. often of great importance, that nicely make your points for you, and that engage your students in the real world of creativity and the law's role in mediating conflicts. But after awhile you may begin to feel that no matter how many people know about it, its vagaries will continue to confound even the most knowledgeable (including lawyers and judges). Is it simply unsuited to the role it's expected to play today? If it is, how long until we figure that out and craft something that better serves our needs?

An interesting little brou-ha-ha has erupted at Harvard over the effort by students to provide materials the University makes available through an official portal, in alternative ways. As explained at The Chronicle: Wired Campus Blog: No Course Material Allowed on Student Site, Harvard Says, and elaborated a bit in the comments, many issues are mixed into the controversy.

It is not always so obvious to some that course materials that are available only behind password protection, are there because institutional rights to use them are limited, either by the terms of Harvard's licenses with the suppliers, or by the doctrine of fair use to the extent, if any, that Harvard relies on fair use to provide course materials to students in electronic formats. In either case, Harvard probably would be liable for its failure to protect the interests of the copyright owners in those works, either under its contracts, or under copyright law, if it failed to act in the face of complaints from the copyright owners.

There are branding issues also. The Harvard portal is appropriately adorned with Harvard's logo. The student site raises significant trademark use issues, but again, not everyone knows or fully appreciates these issues.

So, we are educators. Why not use this event to teach those who are clearly eager to create some of the rules of the road for creating? This is the perfect "teachable moment," as we in academe would say. We have here energetic, creative, positive students who see something they think is a problem and who do more than simply complain, or grumble about -- they actually invest their own time and energy to demonstrate what they believe is a better alternative (that's debatable of course, but frankly beside the point here).

But it gets even better: When one factors in the incredible power of Web 2.0 capability, not only are the students in line to learn something about intellectual property law, but Harvard (and all of us) are in line to learn something about the potential reach and value of information we have on our servers if we will open it to opportunity. Aside from the information that we must protect by limiting its access, there is a wealth of information on our servers that we could open to other uses. This is a great mutual learning opportunity, one I would jump on like a duck on June bug if I were there! This kind of thing doesn't come along every day.

In thinking about contributing to a blog, my first thought was to think about the copyright problems that blogs themselves may actually have. Clearly, in reproducing copyrighted works for inclusion in a blog raises all of the normal copyright issues. Fair use may apply, but the larger the portion of the work used, the less likely fair use will be found.

Some copyright owners have considered whether to contact bloggers to notify them of infringement of their works. Apparently, the jury is out on this issue -- at least among those who responded. Some answered that most bloggers are totally unaware of copyright and licensing and others advised that even college students today had at least a rudimentary knowledge of copyright. See http://www.lightstalkers.org/widespread_copyright_infringement_on_blogs

There are several blog entries I read that discuss various copyright issues:

1. Copyright ownership in blogs

Issues of copyright ownership should be straightforward, but many who blog are encouraged to do so by their employers. This may raise the issue of who owns the copyright in the blog and turns on the work-for-hire doctrine. More and more companies are developing policies that relate to blogging by employees to address a myriad of
liability issues but ownership of the content is also of concern to these companies. There seems to have been no litigation over ownership, however.

2. Quoting material

In 2005 a boingboing post discusssed the fact that bloggers quote liberally from mainstream media and that it would be difficult to blog were copyright strongly enforced against blogs. The posting pointed to norms that have developed in the blogosphere with little enforcement of copyright. The posting muses that this could change.

3. Music

In December 2004 Richard Slilverstein posted a message at: http://lists.ibiblio.org/pipermail/cc-community/2004-December/000226.html
concerning his mp3 blog expressing the view that because his blog was noncommercial and because he was a one-person operation, he had not sought permission to use the songs he uploaded. The songs are world and folk music, and unfortunately the blog is no longer available. He indicated that many musicians and record labels objected to blogs such as his. He wondered whether he should "do the right thing regarding copyright" or if the fact that he had little time to do so might excuse him. Perhaps the fact that the blog he ran is no longer available answers the question.

Other music blogs use short clips only and perhaps might be considered fair use. See http://copycommaright.blogspot.com/

4. Other legal issues

Two other interesting legal issues have been raised with blogs: (a) liability for defamation in the content and (b) disqualification of jurors blogging during a trial.

The Electronic Frontier Foundation has an faq on online defamation aimed at helping bloggers understand the law regarding defamation. Because defamation law developed around the concept of mass media in the form of newspapers and television, it is not so clear how the law applies to blogs.

Who would have ever thought that juror currently sitting on a jury panel in a trial would blog about the trial and his experience as a juror? Well, it has happened. See March 12, 2007, The National Law Journal. There are blogs that discuss jury duty but most jurors know now to disuss the trial in which they are serving as a juror. Apparently, many courts will now add a "do not blog" mandate to their jury instructions.

Well, now that I have reviewed some do's and don'ts about blogging -- don't infringe copyright, don't say ugly things about anyone and don't blog about a trial while sitting as a juror in that proceeding -- I am ready next to post something about copyright. Stay tuned.

Lolly

A fellow Texan, and a fellow Ph.D. candidate (at North Texas State University), Brian Kenney gave a lecture about 2 weeks ago, ALA TechSource | Does Print Still Matter? Brian Kenney on the Future of Content in a 2.0 World, that really piqued my interest. He has much to say on the subject of the future of libraries, and I recommend that you read the ALA Tech Source article about his talk. But the thing that really caught my eye was an example he used of a traditional publisher successfully integrating Web 2.0 social technologies into its online publishing for the most part, sans DRM -- The New York Times. I visit this site all the time. Many of my bookmarked pages are Times articles. The permalink feature allows me to preserve my links to the articles even after they would normally enter the Times' archive and require higher levels of subscription service to access them than I enjoy. Kenney points out that the Times uses other means to attract and keep customers on its site:

Kenney discussed the move by The New York Times into the 2.0 world: "...once on the site, stickiness abounds. Comments are invited on features. Video and audio extend the text content." Kenney noted there are over two dozen blogs integrated throughout the site, ranging from "Bats," about the upcoming 2007 baseball season to "On the Runway," offering a behind-the-scenes look at the fashion industry. "Most significantly," he said,"other users serve as guides to Times content. Tag clouds crop up. You can view the most popular articles by those most emailed, those most blogged, or by most popular search terms."

This integration of the user experience--and opinion--radically changes the construct of the traditional newspaper, which has relied on an editorially created hierarchy based on placement within the publication. "Real estate, in print, is everything, that and the font size of headlines," Kenney said.

This contrasts sharply with the approach of most publishers in the print world exploring business models on the Internet. Most ebooks are DRM heavy, one of the factors contributing to the lackluster performance of the genre.

The Times example also points out the decreasing importance of control in general, even to highly successful old-media businesses. The NY Times makes it easy -- not difficult of expensive -- for readers to reuse and refer to its content. Contrast this approach with some of the restrictive user licenses libraries must agree to in order to make electronic resources available to our constituents. I suppose it is just the natural evolution of business models given the shock of the potential unleashed by the Web, and that things take time. Nonetheless, it is encouraging to see such high-profile examples of publishers inviting users to make use of content, instead of asserting copyright as both a sword and a shield, when it is now possible to be profitable without so inhibiting use and enjoyment.

Hi Everyone!

Thanks for the lovely welcome, Georgia. You have been a good friend and delightful copyright companion. I am so proud that you decided to go to library school even though it is ironic that you are entering libraries as I have exited them for my job. My heart will always be with libraries though and I am applying my library skills to the Associate Dean position.

Confession: This is the first blog I have ever done, so please bear with me as I master this. I have written lots of copyright columns, articles, books, etc., but haven't done a blog. So, I may struggle a bit to get this underway.

We are now in final exams at UNC School of Law and are looking forward to commencement on May 13 -- my job = reading all of the names of the law graduates as they receive their diplomas. Whew! Between now and then I have to grade the websites done by students in my Cyberspace Law Seminar and read 5 papers submitted for our outstanding student writer award for graduation and help select the winner. I am pleased that 3 of the 5 papers deal with technology and the law! So, I guess we are taking over the world.

I look forward to talking with you all month long on copyright and related issues.

Lolly

I now have the pleasure of introducing our May guest blogger, Lolly Gasaway! Lolly is one of the first people I met in my early career as a university copyright attorney who encouraged me along in what was at the time a fairly lonely field. If you practiced copyright law, you didn't generally have colleagues in the same state, let alone the same town, for example. As Director of University of North Carolina's Law Library and a faculty member jointly appointed to both the Library and Law Schools, Lolly's path crossed mine early on where copyright and libraries were concerned. She was and continues to be a great source of support and wisdom. Not coincidentally, a conversation I had with her in January of last year led directly to my decision to get my library degree.

Today Lolly is Associate Dean for Academic Affairs and Professor of Law at the University of North Carolina, Chapel Hill, and very much involved in the intersection of libraries and copyright. She is one of the participants in the Library of Congress' Section 108 Study Group, to which she will make important contributions, I'm sure.

For the month of May, she'll be joining me here at Collectanea, so we all can benefit from her point of view, what catches her eye, what news she thinks we ought to know about in the world of copyright and libraries. Welcome, Lolly.