September 2007 Archives

I’ve found the intersection of copyright law and technological change particularly interesting. For the past several years, one of the sites that I check at least daily is Groklaw. The site has been very educational about such junctions in its description and of current situations and cases and its ability to gather and create resources related to those, notably those related to the ownership of Unix and Linux.

The Groklaw community primarily examines legal issues affecting users and developers of technology. The site first became popular when looking at the SCO Group’s cases against Linux users and developers, represented most notably in their suits against IBM and Novell. The SCO Group publicly claimed ownership of Unix, called Linux a derivative work of Unix, and stated that they were therefore owed money by Linux users. That’s a simple summary of how the story begins, but the related cases have gone through numerous and significant changes since their beginning, with an end possibly in sight. Beyond those cases, Groklaw has also examined patent law, peer-to-peer lawsuits, DRM, contract law, open standards, open documents, and several other issues of concern.

Bill Patry, in reporting on a case involving the issue of which version of a screenplay to compare to another work to establish the similarity of an infringing work to the work it supposedly infringed, The Patry Copyright Blog: And in the end, touches on a matter of great importance to all creative enterprises: the implications of "intermediate use" as fair use.

Intermediate use was established in software cases in the 90's (Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1527 (9th Cir. 1993). For an interesting discussion of the Sega case and a later case also from the 9th Circuit, see Robert Donahoe's article. This concept that intermediate uses are fair means that software engineers can make a copy of a work for the purposes of getting at the ideas inside it, for example, for reverse engineering software. In the end, the new software, when compared to the original, must not infringe, but it's ok to have made a copy in the first place to borrow that which is legal to borrow.

This idea is not limited to software. Patry indicates its usefulness in the film case he reviews above, but also comments generally that the principle allows us to start with another work and use it as we like, so long as our final version of our work borrows only that to which we are legally entitled. This would include ideas of course, but also bits and pieces that would constitute fair use. Making intermediate use of others' works is a staple in the art world, in music, and increasingly, of all forms of creativity on the network. If you Google 'intermediate use,' you'll find many examples of cases that support its status as fair use in a wide variety of contexts. This is another example of the expanding understanding of the vital role fair use plays in the creation of new works.

On the other side, however, there are still vast holdouts against the idea that fair use is vital. Patry references sampling in another blog post: Amen Brother). The video he links to explains both the importance of fair use to the music industry, and the erosion of protection for it in the last 10 to 15 years. It's well worth the 18 minutes that it takes to listen to the video (yes, listen to... it's not much visually, but really tells an important fair use story).

Georgia earlier reported on the CCIA study describing the economic value of fair use. That study and responses to that study have shed light on a few areas.

We know the basic theory of copyright in the U.S. Given an exclusive monopoly, creators will profit from their works. Therefore, creators will have an economic incentive to continue to create. The public benefits through access to those works via exemptions (including fair use) and the public domain. The theory deals with financial incentives, and a great deal of copyright research comes from economics or is framed in such a way that makes economics the most important value. I don't believe that framing is necessarily sufficient when looking at copyright, but it's interesting to see some of those methodologies applied in this way.

The World Intellectual Property Organization issued guidelines for industries to determine how much copyright law contributes to a given country's economy. The CCIA study basically uses those same guidelines (with a few modifications) to determine the value of fair use to the economy. It's an interesting approach for a few reasons.

If it's assumed that the WIPO guidelines are fair and accurate, then there's a good chance that these figures are at least as valid as the copyright groups'. Patrick Ross of the Copyright Alliance soon issued a response to the study.

The story about the NY Times closing down shop on its 2 year experiment in selling access to content has been reported all over the blogosphere, from many different angles. It is a rich story, really, and does in fact have much to say about what's happening in the business world of the Internet. The if:book report reflects the change from a publisher's having confidence in the power of its own brand to draw in paying subscribers to its having confidence in the power of Internet search and advertising to draw in far more dollars in the long run: if:book: all the news that's fit to search.

I agree that the power of search makes dollars and sense. But I also note that this particular strategy places copyright's *exclusion" right, it's reliance on exclusive rights to motivate creation, a little further down in the hierarchy of what one needs to succeed in the online world. Or, put another way, if you play the copyright card front and center, you ignore a lot of other cards that are ultimately of more economic value.

We are finally beginning to get the idea that control over copies isn't the only way to exercise one's copyrights. Sharing actually works, economically. It also makes a lot of sense that advertising would be the liberator. It's under our noses all the time with television. But surely it's not the only alternative to controlling access and counting copies. The world of all advertising, all the time has its own downsides. Nonetheless, it's encouraging to see major publishers leaving access control behind.

Peter Brantley and Carl Malamud have just asked the Copyright Office to make its retrospective database of registrations of copyright freely available to the public: Carl Malamud Tackles the Copyright Office. The claim is that the information is public domain (the Copyright Office apparently claims copyright on it) and that it is a valuable dataset that, if publicly available for research activities, could yield improvements to the search process itself as well as other information about the registration process.

It is rather remarkable that the massive numbers of registrations and renewals are only searchable back to 1978. Stanford made headlines when it provided access to the "determinator," its database of earlier records that are proving indispensable to determining which of the works registered during the period 1923 - 1963 are in the public domain because their owners did not renew their copyrights as was required during that time.

University of Texas is joining this effort to determine the copyright status of works that have been digitized by Google, but not just for the purpose of making those works that are found to be in the public domain more accessible, but also to further the research efforts of others along these same lines. We plan to document in detail the process we go through to make our determinations, the resources we find indispensable to our work, and when we are unable to make a determination, all the evidence that we were able to bring to bear on the question of copyright status so that others might be able to pick up where we left off. This is the kind of work that requires a "knowledge community" to further it. I know that the Copyright Office is a part of that knowledge community. Contributing its records to the research community is a special step that only it can take, a unique contribution I hope it will make.

Slashdot reports a study commissioned by the Computer and Communications Industry Association (CCIA) on the economic value of fair use. Peter Jaszi, American University Washington College of Law was involved. Peter has been a strong proponent of fair use, and one who has taken decisive actions over the last several years to really make a difference in how we perceive and rely on fair use. The Best Practices document for Documentary Filmmakers is a superb example of such action.

This latest effort reports that fair use adds more to the economy than the copyright industries do, as the figures in the snippet at Slashdot illustrate. But what kind of analysis lies behind the admittedly eye-catching numbers? The study identifies certain economic sectors as fair use industries, industries for whom reliance on fair use is critical to their business, and analyzes the contributions of these industries, their growth, how many people they employ, and other measures. It concludes that fair use contributes to the economy in some proportion directly related to the value of these industries. I have not read the whole report yet, but it certainly is an interesting angle.

One of the sectors identified as a fair use industry is education institutions. Statistics about the contribution of higher education, in particular, to the economy are probably very widely available. I know that we have had to make the case that dollars invested in us are repaid many times by economic growth (nevertheless, we do not manage to reverse the trend towards less and less investment from our state legislature each session). But this set of statistics has not until now been brought to bear on the question of the extent to which our reliance on fair use actually benefits the economy.

Lolly Gasaway reported recently on the Perfect 10 v. Google case, how the court really looked at the social benefit provided by the alleged infringers, departing somewhat from a focus on the harm caused by the infringement. I followed up with a short article in CIP's Newsletter, further expanding on this theme. The court's analysis, as much as its ruling, was very important for its shift in emphasis. It is this shift in emphasis that I think suggests the possibility of more solidly undergirding the scope of fair use involving nonprofit educational uses. Still, it is important to note that there were only speculative damages to counteract the public benefit of Google's fair use in Perfect 10 v. Google. Where copyright owners may have little difficulty demonstrating very real harms to their licensing revenues, the outcome may not be the same.

This report does provide food for thought in the recently invigorated struggle to push back the heretofore shrinking boundaries of fair use. It will be interesting to see how these findings might be practically implemented.

I mentioned the announcements about Amazon's new Kindle book reader (wifi'd) and Google's selling access to ebooks online in passing yesterday in a post on a related topic, but today if:book takes a more detailed and future-oriented look at the developments: if:book: e-book developments at amazon, google (and rambly thoughts thereon). I always enjoy the thinking that goes on at if:book, and encourage you to read this one. The author is musing about the future of publishing, but he could just as well have been speculating about the future of libraries.

Here's one of the subjects I've mentioned in a few places in action: the rhetoric of fair use.

The technology trade group Computer & Communications Industry Association (CCIA) recently filed a complaint with the FTC regarding the misleading and overreaching copyright warnings that appear during sports events, on DVDs and books, and other places. Georgia wrote about the complaint last month. I'm highly sympathetic to that particular endeavor, as I find such notices blatantly misleading. Those notices are one of the subjects I'm regularly asked about by the people I work with- mainly librarians, students and educators. ("Can I show this video to a class when it's class related? What if it says "For Home Use Only?")

The head of the industry sponsored Copyright Alliance has written a response on CNet entitled "Fair use is not a consumer right."

A couple of months ago, I noticed a tie-in between the publishing industry's future and the introduction of the iPhone reported at Print is Dead, and posted an entry here on the subject (What publishing can learn from the iPhone). Today, following Wednesday's big announcement by Steve Jobs that he's slashed $200 off the iPhone price and introduced WiFi ready iPods (just Google it), the opportunities for the publishing industry to jump on the train to the future continue: Apple Saves The Publishing Industry | Booksquare.

All the positive motivation is there, as rigorously detailed at Kassia Kroszer's post (Booksquare). In fact, Kroszer's points directly respond to complaints librarians like Karen Coyle are making about the unavailability of Internet in the stacks (I hope libraries are listening). But the stick is there as well, as noted at TechCrunch in connection with the announcement that Amazon and Google will be entering the ebook business:

Like the iPod, the key driver of sales of the [Amazon Kindle book reader] device won’t be the depth of content available on the associated service, but the availability of pirated, free content on BitTorrent and other P2P networks. eBooks are coming, but they’re not here yet.

Wake up! Smell the Starbucks (where you can WiFi music directly to your new iPod now...). Copyright owners can wrap themselves in their copyrights and drm themselves into obscurity, or they can find a seat on the train. It will be different, not relying on controlling access to everything, undeniably, but I think that's the future -- for music *and* for publishing.

Thank you, Georgia, for that introduction. ^_^ As she mentioned, I am very interested in research about copyright- particularly how copyright affects the missions and practices of public and cultural institutions. It's a broad subject, and I more than welcome any suggestions on methodologies or where to look!

I'm fortunate enough to start here as some really interesting things are happening in the copyright world- Golan v. Gonzales has been sent back to a lower court with instructions to take into account First Amendment concerns! The 10th Circuit Court of Appeals agreed with Lessig and others that § 514 has "altered the traditional contours of copyright protection in a manner that implicates plaintiffs' right to free expression." The news and decision are available at the Center for Internet and Society at Stanford.

I am pleased to introduce our September guest blogger, fellow UT School of Information (iSchool) grad student, Carlos Ovalle. Carlos and I have known each other many years, as the result of his interest in copyright law. In fact, his dissertation topic will center on copyright law. In addition to his work at the iSchool where, among other things, he created a wonderful copyright module that students use in their studies, he's also an ALA Copyright Scholar, class of 2005, and blogs on the Copyright Advisory Network's blog as well as his own blog, copy this blog.

I look forward to reading Carlos' take on things over the next several weeks, and am sure you'll enjoy seeing his perspective too. He is among the bright scholars whose interest in these topics will carry them far, and help out the rest of us! Thanks for joining us Carlos.

I would like to thank Tobe, our August guest blogger, for sharing his thoughts about copyright events with us. The end of August and Tobe's month with us marks as well, the end of summer. Tobe has a new job teaching legal writing and legal research at the John Marshall law school in Chicago (congratulations, Tobe!). I, of course, am back to school as well, but as student rather than teacher. My classes got rolling last week. I'm already way over my head in reading assignments, project due dates and ideas for papers I won't have time to write...

So, thanks Tobe, and the best of luck to you in your new home and your new job! Keep in touch!