Archive for the 'Digital Copyright Wars' Category

France Close to Passing Copyright Bill with “Three-Strikes” Provision to Curb File Sharing

Posted in Copyright, Digital Copyright Wars, P2P File Sharing on April 5th, 2009

The French National Assembly has approved a key provision of a new copyright law that is aimed at curbing illegal file sharing on the Internet. Violators would receive two warning letters, then be subject to Internet disconnection for up to a year.

New Zealand has recently decided not to enact a "three-strikes" law, and will rewrite it. Recent enactment of a new Swedish law that requires ISPs to reveal the identity of potential violators has resulted in Internet traffic in that country dropping by a third. The EFF has recently debunked reports that some U.S. ISPs, prodded by the RIAA, would disconnect U.S. violators; however, Wired has reported that the MPAA is now in negotiations with ISPs regarding disconnection.

Read more about it at "France Approves Main Section of Tough Anti-P2P Bill," "French Pass 'Three Strikes,' File-Sharing Law: Oh Merde" and "French '3 Strikes' Law Passes 2nd Reading."

Peter Brantley on Orphan Works and the Google Book Search Settlement

Posted in Copyright, Digital Copyright Wars, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on March 17th, 2009

In "The Orphan Monopoly," Peter Brantley, Executive Director for the Digital Library Federation, examines issues related to orphan works and the Google Book Search Copyright Class Action Settlement.

Here's an excerpt:

There is a lot to ponder: This is arguably a massive re-writing of copyright for books without any legislative input; Marybeth Peters (MBP), the U.S. Registrar of Copyrights, observed that the settlement essentially proposes a private agreement for compulsory licensing between a large class of IP holders and world’s largest search engine. The potential scope and policy ramifications are significant. MBP mentioned that there might be treaty implications under international conventions. And despite that, one of the most shocking of her statements was that the Copyright Office has not received a single inquiry from any of the 535 elected representatives of the people of the United States. Not. One.

“Orphan Works Legislation and the Google Settlement”

Posted in Copyright, Digital Copyright Wars, Google and Other Search Engines, Publishing on March 16th, 2009

In "Orphan Works Legislation and the Google Settlement," Paul Courant discusses the possibility of legislation that would extend the treatment of orphan works in the Google Book Search Copyright Class Action Settlement to anyone.

Here's an excerpt:

But there is an obvious solution, one that was endorsed at the Columbia meeting by counsel for the Authors Guild, the AAP, and Google: Congress could pass a law, giving access to the same sort of scheme that Google and the BRR have under the Google Settlement to anyone. And they could pass some other law that makes it possible for people to responsibly use orphaned works, while preserving interests for the missing "parents" should they materialize. Jack Bernard and Susan Kornfield have proposed just such an architecture to "foster" these orphans. Google has also made a proposal that would be a huge improvement.

“Google & Books: An Exchange”

Posted in Copyright, Digital Copyright Wars, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on March 15th, 2009

In "Google & Books: An Exchange," Paul N. Courant, Ann Kjellberg, J. D. McClatchy, Edward Mendelson, Margo Viscusi, Tappan Wilder et al. have commented on Robert Darnton's "Google & the Future of Books," and Darnton has replied.

Here's an excerpt:

[Darnton] Monopolies tend to charge monopoly prices. I agree that the parallel between the pricing of digital and periodical materials isn't perfect, but it is instructive. If the readers of a library become so attached to Google's database that they cannot do without it, the library will find it extremely difficult to resist stiff increases in the price for subscribing to it. As happened when the publishers of periodicals forced up their prices, the library may feel compelled to cover the increased cost by buying fewer books. Exorbitant pricing for Google's service could produce the same effect as the skyrocketing of periodical prices: reduced acquisitions of monographs, a further decline in monograph publishing by university presses, and fewer opportunities for young scholars to publish their research and get ahead in their careers.

Senate Spending Bill Includes NIH Open Access Provision

Posted in Copyright, Digital Copyright Wars, Open Access, Publishing, Scholarly Journals, Self-Archiving on March 10th, 2009

The Senate spending bill, which has been reported by the Washington Post and others as having passed, includes an NIH open access provision.

Here's an excerpt from "In 2009 Appropriations Bill, NIH Public Access Mandate Would Become Permanent":

In the section funding the NIH, section 217, pertaining to public access, reads:

"The Director of the National Institutes of Health shall require in the current fiscal year and thereafter [emphasis added] that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine's PubMed Central an electronic version their final, peer-reviewed manuscripts upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication: provided, That the NIH shall implement the public access policy in a manner consistent with copyright law."

In his "Congress Makes NIH Policy Permanent (but for Conyers Bill) post," Peter Suber points out that because of the Fair Copyright in Research Works Act the NIH Public Access policy is still in danger.

Lawrence Lessig Replies to Rep. John Conyers about the Fair Copyright in Research Works Act

Posted in Copyright, Digital Copyright Wars, Legislation and Government Regulation, Open Access, Publishing, Scholarly Journals, Self-Archiving on March 10th, 2009

Lawrence Lessig has replied to Rep. John Conyers' "A Reply to Larry Lessig," which was written in response to "Is John Conyers Shilling for Special Interests?" by Lawrence Lessig and Michael Eisen.

Here's an excerpt:

Supporting citizens' funding of the nation's elections—as Mr. Conyers has—is an important first step. That one change, I believe, would do more than any other to restore trustworthiness in Congress.

But that's not all you could do, Mr. Conyers. You have it within your power to remove any doubt about the reasons you have for sponsoring the legislation you sponsor: Stop accepting contributions from the interests your committee regulates. This was the principle of at least some committee chairmen in the past. It is practically unheard of today. But you could set an important example for others, and for America, about how an uncorrupted system of government might work. And you could do so without any risk to your own position—because the product of your forty years of extraordinary work for the citizens of Michigan means that they'll return you to office whether or not you spend one dime on a reelection. Indeed, if you did this, I'd promise to come to Michigan and hand out leaflets for your campaign.

Until you do this, Mr. Conyers, don't lecture me about "crossing a line." For I intend to cross this line as often as I can, the outrage and scorn of Members of Congress notwithstanding. This is no time to play nice. And yours is just the first in a series of many such stories to follow—targeting Republicans as well as Democrats, people who we agree with on substance as well as those we don't, always focusing on bad bills that make sense only if you follow the money.

New York Action Alert: Rep. Carolyn Maloney Sponsors Fair Copyright in Research Works Act

Posted in Copyright, Digital Copyright Wars, Legislation and Government Regulation, Open Access, Publishing on March 9th, 2009

Rep. Carolyn B. Maloney (D-NY) has become the first sponsor of the Fair Copyright in Research Works Act who is not a member of the House Judiciary Committee.

If you are in her district and oppose the bill, you can contact her to express your opposition in the following ways:

  • DC Office: Phone: (202) 225-7944; Fax: (202) 225-4709
  • New York Office: Phone: (212) 860-0606, Fax: (212) 860-0704
  • Web Form: The Hill form; Maloney's form

The ALA call to action and the Alliance for Taxpayer Access call to action have example text and talking points that you can use. (Note that the ALA call Web form cannot be used to contact Maloney.)

Peter Suber offers this advice:

As usual, you will be more persuasive if you can explain why the NIH policy matters to you, your work, or your organization. Be specific and be personal. Speak for yourself, but if you can, get your institution to send a letter as well. Save your message; you may need to adapt and reuse it later. And please spread the word to your NY colleagues.

For further information about the Fair Copyright in Research Works Act, see Suber's article "Re-introduction of the Bill to Kill the NIH Policy" and his post "Aiming Criticism at the Right Target."

The Google Library Project: Is Digitization for Purposes of Online Indexing Fair Use Under Copyright Law?

Posted in Copyright, Digital Copyright Wars, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on March 9th, 2009

The Congressional Research Service has released The Google Library Project: Is Digitization for Purposes of Online Indexing Fair Use Under Copyright Law?. (Thanks to ResourceShelf.)

Here's an excerpt:

The Google Book Search Library Project, announced in December 2004, raised important questions about infringing reproduction and fair use under copyright law. Google planned to digitize, index, and display "snippets" of print books in the collections of five major libraries without the permission of the books' copyright holders, if any. Authors and publishers owning copyrights to these books sued Google in September and October 2005, seeking to enjoin and recover damages for Google's alleged infringement of their exclusive rights to reproduce and publicly display their works. Google and proponents of its Library Project disputed these allegations. They essentially contended that Google's proposed uses were not infringing because Google allowed rights holders to "opt out" of having their books digitized or indexed. They also argued that, even if Google's proposed uses were infringing, they constituted fair uses under copyright law.

The arguments of the parties and their supporters highlighted several questions of first impression. First, does an entity conducting an unauthorized digitization and indexing project avoid committing copyright infringement by offering rights holders the opportunity to "opt out," or request removal or exclusion of their content? Is requiring rights holders to take steps to stop allegedly infringing digitization and indexing like requiring rights holders to use meta-tags to keep search engines from indexing online content? Or do rights holders employ sufficient measures to keep their books from being digitized and indexed online by publishing in print? Second, can unauthorized digitization, indexing, and display of "snippets" of print works constitute a fair use? Assuming unauthorized indexing and display of "snippets" are fair uses, can digitization claim to be a fair use on the grounds that apparently prima facie infringing activities that facilitate legitimate uses are fair uses?

On October 28, 2008, Google, authors, and publishers announced a proposed settlement, which, if approved by the court, could leave these and related questions unanswered. However, although a court granted preliminary approval to the settlement on November 17, 2008, final approval is still pending. Until final approval is granted, any rights holder belonging to the proposed settlement class—which includes "all persons having copyright interests in books" in the United States—could object to the agreement. The court could also reject the agreement as unfair, unreasonable, or inadequate. Moreover, even assuming final court approval, future cases may raise similar questions about infringing reproduction and fair use.

Michael Eisen Replies to Rep. John Conyers about the Fair Copyright in Research Works Act

Posted in Copyright, Digital Copyright Wars, Open Access, Publishing, Scholarly Journals, Self-Archiving on March 8th, 2009

Michael Eisen has replied to Rep. John Conyers' "A Reply to Larry Lessig," which was written in response to "Is John Conyers Shilling for Special Interests?" by Lawrence Lessig and Michael Eisen. (Thanks to Open Access News.)

Here's an excerpt:

Unfortunately, Representative Conyers actions do not reflect his words. This bill was introduced in the last Congress. The Judiciary Committee then held hearings on the bill, in which even the publishers' own witnesses pointed out flaws in its logic and approach. In particular, a previous Registrar of Copyrights, clearly sympathetic to the publishers' cause, acknowledged that the NIH Policy was in perfect accord with US copyright law and practice. If Conyers were so interested in dealing with a complex issue in a fair and reasonable way, why then did he completely ignore the results of this hearing and reintroduce the exact same bill—one that clearly reflects the opinions of only one side in this debate?

Peter Suber Replies to Rep. John Conyers about the Fair Copyright in Research Works Act

Posted in Copyright, Digital Copyright Wars, Open Access, Publishing, Scholarly Journals, Self-Archiving on March 7th, 2009

Peter Suber has replied to Rep. John Conyers' "A Reply to Larry Lessig," which was written in response to "Is John Conyers Shilling for Special Interests?" by Lawrence Lessig and Michael Eisen.

Here's an excerpt:

I thank Rep. Conyers for making a public defense of his bill in a forum which offers the public a chance to respond.  I also respect his record on other issues, including civil rights and bankruptcy, and his current efforts to compel the testimony of Karl Rove and Harriet Miers. On research publications, however, he's backing the wrong horse, and his arguments for siding with publishers against scientists and taxpayers are not strong.

(1) Rep. Conyers insists that the House Judiciary Committee should have been consulted on the original proposal for an open-access policy at the NIH. However, William Patry, former copyright counsel to the House Judiciary Committee (and now chief copyright counsel at Google), believes that "the claim that the NIH policy raises copyright issues is absurd," and that the Judiciary Committee did not need to be in the loop.  I understand that the House Rules Committee came to a similar decision when formally asked. . . .

Clearly Rep. Conyers disagrees with these views. But they should suffice to show that bypassing the Judiciary Committee was not itself a corrupt maneuver.

If it's important to revisit the question, I hope Rep. Conyers can do it without backing a bill from a special interest lobby that would reduce taxpayer access to taxpayer-funded research. A turf war is not a good excuse for bad policy. On the merits, see points 2 and 3 below.

For more independent views that the NIH policy does not raise copyright issues, see the open letter to the Judiciary Committee from 46 lawyers and law professors specializing in copyright.

(2) Rep. Conyers accepts the publisher argument that the NIH policy will defund peer review by causing journal cancellations. The short answer to that objection is that (a) much higher levels of open-access archiving, of the kind the NIH now requires, have not caused journal cancellations in physics, the one field in which we already have evidence; (b) subscription-based journals are not the only peer-reviewed journals; and (c) if the NIH policy does eventually cause journal cancellations, then libraries would experience huge savings which they could redirect to peer-reviewed OA journals, whose business models do not bet against the internet, public access, or the NIH policy.

For a detailed analysis of the objection that government-mandated open access archiving will undermine peer review, and a point-by-point rebuttal, see my article in the SPARC Open Access Newsletter from September 2007.

(3) Rep. Conyers writes that the NIH policy "reverses a long-standing and highly successful copyright policy for federally-funded work and sets a precedent that will have significant negative consequences for scientific research." It's true that the policy reverses a long-standing copyright policy.  But the previous policy was unsuccessful and perverse, and had the effect of steering publicly-funded research into journals accessible only to subscribers, and whose subscription prices have been rising faster than inflation for three decades. Both houses of Congress and the President agreed to reverse that policy in order to allow the NIH to provide free online access to the authors' peer-reviewed manuscripts (not the published editions) 12 months after publication (not immediately). This was good for researchers, good for physicians and other medical practitioners, good for patients and their families, and good for taxpayers. It was necessary to make NIH research accessible to everyone who could use it and necessary to increase the return on our large national investment in research. It was necessary from simple fairness, to give taxpayers—professional researchers and lay readers alike—access to the research they funded.

On the "significant negative consequences for scientific research":  should we believe publishers who want to sell access to publicly-funded research, or the research community itself, as represented by 33 US Nobel laureates in science, the Association of American Universities, the Association of Research Libraries, and a host of patient advocacy groups?

For further information about the Fair Copyright in Research Works Act, see Suber's article "Re-introduction of the Bill to Kill the NIH policy" and his post "Aiming Criticism at the Right Target."

Rep. John Conyers Replies to Lessig and Eisen about Fair Copyright in Research Works Act

Posted in Copyright, Digital Copyright Wars, Legislation and Government Regulation, Open Access, Self-Archiving on March 6th, 2009

Rep. John Conyers has replied to Lawrence Lessig and Michael Eisen's "Is John Conyers Shilling for Special Interests?" article about the Fair Copyright in Research Works Act.

Here's an excerpt:

The policy Professor Lessig supports, they [opponents] argue, would limit publishers' ability to charge for subscriptions since the same articles will soon be publicly available for free. If journals begin closing their doors or curtailing peer review, or foist peer review costs on academic authors (who are already pay from their limited budgets printing costs in some cases), the ultimate harm will be to open inquiry and scientific progress may be severe. And the journals most likely to be affected may be non-profit, scientific society based journals. Once again, a policy change slipped through the appropriations process in the dark of night may enhance open access to information, but it may have unintended consequences that are severe. This only emphasizes the need for proper consideration of these issues in open session.

Following the Money Trail: MAPLight.org Report on Campaign Contributions and the Fair Copyright in Research Works Act

Posted in Copyright, Digital Copyright Wars, Open Access, Publishing, Scholarly Journals, Self-Archiving on March 3rd, 2009

MAPLight.org has released "Report on HR 801, Fair Copyright in Research Works Act: Report Shows Campaign Contributions Given to Sponsors of Fair Copyright in Research Works Act." (Thanks to the Huffington Post and Open Access News.)

Here's an excerpt:

MAPLight.org's research team released data today showing campaign contributions given to members of the House Committee on the Judiciary from publishing interests during the 2008 election cycle (Jan. 2007 through Dec. 2008). MAPLight.org analyzed campaign contribution data provided by the Center for Responsive Politics and determined that the publishing industry gave an average of $5,150 to each of the bill's five bill sponsors and an average of $2,506 to each of the other 34 non-sponsor members of the Committee. Total publishing industry contributions given to the House Committee on the Judiciary were $110,950.


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