Carl Malamud has put up a website, What Would Luther Burbank Do?, that contains a complaint about the Smithsonian Institution's Terms of Use and Licensing Policy. The complaint concerns a take down notice that Mindy Sommers received from the Smithsonian Institution regarding her Vintage Seed Catalog Digital Collage Sheet Five.

Here's an excerpt:

1.1 The Smithsonian Institution's Terms of Use and Licensing Policy are in violation of 17 U.S.C. § 105 (the "works of government" clause of the Copyright Act) and 20 U.S.C. § 41 (the "increase and diffusion of knowledge among men" clause of the Smithsonian Charter). . . . .

6.1 Injunction. That the Smithsonian Institution be instructed to cease and desist all further "take down" notices until this matter has been thoroughly investigated.

6.2 Investigation. That the Board of Regents investigate and analyze the intellectual property policies of the Smithsonian Institution to determine if such policies are in violation of the Copyright Act or the Smithsonian Charter.

6.3 Restitution. That the Smithsonian Institution work with the community to create high-resolution scans of the Seed Displays source material that is not under copyright by external, non-governmental entities and that such high-resolution scans be released on the Internet with no restrictions on use.

| Digital Scholarship |

Digital Scholarship has released version 7 of the Google Books Bibliography, which presents over 325 selected English-language articles and other works that are useful in understanding Google Books. It primarily focuses on the evolution of Google Books and the legal, library, and social issues associated with it, especially the Google Book Settlement. To better show the development Google Books, it is now organized by year of publication. It primarily includes journal articles, e-prints, magazine articles, and newspaper articles. This version expands coverage of law review articles and legal e-prints. Where possible, links are provided to works that are freely available on the Internet.

The following recent Digital Scholarship publications may also be of interest:

• Digital Curation and Preservation Bibliography 2010. Presents over 500 English-language works.
• Institutional Repository Bibliography, Version 4. Presents over 500 English-language works.
• Scholarly Electronic Publishing Bibliography 2010. Presents over 3,800 English-language works.

| Digital Scholarship | Digital Scholarship Publications Overview |

Walt Crawford has published "Talking about the Public Domain" in the latest issue of Cites & Insights: Crawford at Large.

Here's an excerpt:

Ah, the public domain: Where creative work is supposed to wind up after a limited period during which the creator has exclusive control over distribution and copying. An ever-growing pool of literature, music, photography, video and art that we can use not only as inspiration but also as the direct basis for new works, annotating, deriving or just plain redistributing.

What a wonderful thing.

Too bad it's basically been frozen for quite a few years now, with almost nothing new entering the pool (except government publications—which start in the public domain) and things tagged with the Creative Commons CC0 license. Oh, and probably a few cases where a creator's been dead more than 70 years and has works produced since 1923.

Not only has it been frozen in the U.S., there are laws and treaties that would appear to shrink the public domain pool—which should, by any rational reading of the Constitution, be flatly unconstitutional.

| Digital Curation and Preservation Bibliography 2010 | Institutional Repository Bibliography | Transforming Scholarly Publishing through Open Access: A Bibliography | Scholarly Electronic Publishing Bibliography 2010 |

James Grimmelmann reports that Michael Boni told US District Court Judge Denny Chin at the 7/19/11 status conference that the parties involved in the Google Books lawsuit "have been aiming for an opt-in settlement." The next status conference will occur on 9/15/11.

Here's an excerpt from Grimmelmann's "GBS Status Conference: Opt-in Settlement in the Works?" post:

What that might mean is not obvious. It could mean an actual opt-in settlement, one that binds only class members who send in claim forms. It could mean a settlement in which Google commits to an open-ended offer to all class members. It could mean a narrower, scanning-and-searching-only settlement, so that copyright owners can "opt in" to book sales by striking their own individual deals with Google.

Read more about it at "Judge Concerned with Lack of Progress in Revised Google Settlement Talks."

| Digital Scholarship Publications Overview |

The European Parliament has released The Anti-Counterfeiting Trade Agreement (ACTA): An Assessment.

Here's an excerpt:

The ACTA was motivated by a desire to establish equivalent provisions in international trade agreements containing rules on anti-counterfeiting. This is important at a time when free trade agreements are being negotiated by different parties. For the European Union it is also of importance to protect EU intellectual property rights (IPR) as future EU competitiveness depends on its ability to move into higher value added activities such as those for which IPRs are important. At the same time international agreements on IPRs will only be sustainable when they have the support of all parties. Within the EU the ACTA has also been the source of some concerns regarding the non-transparent way it was negotiated and whether it meets to aims agreed by the European Parliament and Commission that it would be compatible with the existing acquis communautaire and the World Trade Organisation's Trade Related Intellectual Property rights (TRIPs) Agreement.

| Digital Curation and Preservation Bibliography 2010 | Institutional Repository Bibliography | Transforming Scholarly Publishing through Open Access: A Bibliography | Scholarly Electronic Publishing Bibliography 2010 |

Randal C. Picker has self-archived "After Google Book Search: Rebooting the Digital Library" in SSRN.

Here's an excerpt:

The rejection of the Google Book Search settlement means that we are at a point of rebooting how we design our digital library future. There were many criticisms of GBS and the settlement but perhaps chief among those was the risk that approval of the settlement would have locked in a single approach to digital libraries. Google would have received unique access to the so-called orphan works and that would have provided it what may have been a decisive advantage against digital library competitors, both private and public. As we move forward on the orphan works, we need to do so with two principles in mind. First, we need to enable broad competing uses of the orphan works while, to the greatest extent possible, respecting the rights of the orphan works holders. Second, we should not repeat the mistake of the GBS settlement by somehow tilting the table in favor of digital library monopoly, either public or private.

| Digital Scholarship Publications OverviewGoogle Books Bibliography |

The Computer & Communications Industry Association has released Fair Use in the U.S. Economy.

Here's an excerpt from the press release:

Using the latest publicly available data (2009), and adapting a methodology developed by the World Intellectual Property Organization (WIPO) this study finds the following about fair use industry growth and activity:

• Revenue—In 2008 and 2009, fair use industries—those industries that depend upon fair use and related limitations to copyright—generated revenue averaging $4.6 trillion, a 35 percent increase over 2002 revenue of $3.4 billion. . . .
• Employment—The fair use economy is vast, employing 17 million people—approximately one in eight U.S. workers—and generates a payroll averaging $1.2 trillion in 2008-2009, compared to $895 billion in 2002.

| Digital Scholarship Publications Overview |

The EDUCAUSE Policy Analysis and Advocacy Program has released "How PIPA Would Affect Colleges and Universities." (PIPA is the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act.)

Here's an excerpt:

Whereas COICA didn't bother to define "domain name system server," PIPA says, "[T]he term 'domain name system server' means a server or other mechanism used to provide the Internet protocol address associated with a domain name" (emphasis added).

The phrase "or other mechanism" increases the potential scope of the definition, at the risk of unintended consequences. For example, the term defined this way could sweep in operating systems, email clients, web clients, routers, and other technologies that are operated by our campuses, which would adversely affect operations.

| Digital Curation and Preservation Bibliography 2010 | Institutional Repository Bibliography | Transforming Scholarly Publishing through Open Access: A Bibliography | Scholarly Electronic Publishing Bibliography 2010 |

Gail P. Clement has published "The Copyright Self-Help Movement: Initiatives in the Library Community" in the latest issue of College & Research Libraries News.

Here's an excerpt:

In the library context, the self-help concept refers to collective actions by practitioners to maximize the balancing features in American copyright law. These features include the various limitations to owner's rights and the provision for a public domain. Copyright self-help complements scholarly communication initiatives that help campus authors retain the rights to reuse and share their own publications. In combination, both types of collective community action serve to maximize allowable uses of copyrighted materials (or identify public domain materials) in order to fuel scholarship, innovation, education, and culture.

| Digital Curation and Preservation Bibliography 2010 | Institutional Repository Bibliography | Transforming Scholarly Publishing through Open Access: A Bibliography | Scholarly Electronic Publishing Bibliography 2010 |

Neil W. Netanel, Pete Kameron Endowed Chair in Law at the UCLA School of Law, has self-archived "Making Sense of Fair Use" in SSRN.

Here's an excerpt:

Specifically, the Article traces the rise to prominence of the transformative use paradigm, as adopted by the Supreme Court in Campbell v. Acuff-Rose, over the market-centered paradigm of Harper & Row v. The Nation and its progeny. The Article presents data showing that since 2005 the transformative use paradigm has come overwhelmingly to dominate fair use doctrine, bringing to fruition a shift towards the transformative use doctrine that began a decade earlier. The Article also finds a dramatic increase in defendant win rates on fair use that correlates with the courts' embrace of the transformative use doctrine.

| Digital Scholarship Publications Overview |

Five U.S ISPs (AT&T, Cablevision Systems Corp., Comcast Corp., Time Warner Cable, and Verizon) have agreed to a copyright alert plan with the A2IM, IFTA, the MPAA (and major members), and the RIAA (and major members).

Here's an excerpt from the press release:

The new Copyright Alert System addresses these problems with a series of early alerts—up to six—in electronic form, notifying the subscriber that his or her account may have been misused for online content theft of film, TV shows or music. It will also put in place a system of "mitigation measures" intended to stop online content theft on those accounts that appear persistently to fail to respond to repeated Copyright Alerts. The system will also provide subscribers the opportunity for an independent review to determine whether a consumer's online activity in question is lawful or if their account was identified in error. There are no new laws or regulations established as a part of this voluntary agreement. Termination of a subscriber's account is not part of this agreement. ISPs will not provide their subscribers' names to rights' holders under this agreement.

For an explanation "mitigation measures," see the "FAQ's on The Center for Copyright Information and Copyright Alert System."

| Digital Scholarship Publications Overview |

In this podcast, Pamela Samuelson discusses her 2011 paper "Legislative Alternatives to the Google Book Settlement" with Jerry Brito, Senior Research Fellow at the Mercatus Center at George Mason University.

| Digital Curation and Preservation Bibliography 2010 | Institutional Repository Bibliography | Transforming Scholarly Publishing through Open Access: A Bibliography | Scholarly Electronic Publishing Bibliography 2010 |