Archive for the 'Digital Copyright Wars' Category

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."

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    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.

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      Following the Money Trail: 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 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:'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). 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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        Amazon Lets Publishers Decide on Whether Their Books Can Be Read Aloud by Kindle on Title-by-Title Basis

        Posted in Copyright, Digital Copyright Wars, E-Books, Publishing on March 1st, 2009

        Amazon will let publishers determine whether their e-books can be read aloud by the Kindle on a title-by-title basis.

        Here's an excerpt from the press release:

        Kindle 2's experimental text-to-speech feature is legal: no copy is made, no derivative work is created, and no performance is being given. Furthermore, we ourselves are a major participant in the professionally narrated audiobooks business through our subsidiaries Audible and Brilliance. We believe text-to-speech will introduce new customers to the convenience of listening to books and thereby grow the professionally narrated audiobooks business.

        Nevertheless, we strongly believe many rightsholders will be more comfortable with the text-to-speech feature if they are in the driver's seat.

        Therefore, we are modifying our systems so that rightsholders can decide on a title by title basis whether they want text-to-speech enabled or disabled for any particular title. We have already begun to work on the technical changes required to give authors and publishers that choice. With this new level of control, publishers and authors will be able to decide for themselves whether it is in their commercial interests to leave text-to-speech enabled. We believe many will decide that it is.

        As reported previously, the Authors Guild was opposed to an unbridled read aloud Kindle capability. Here's an excerpt from "The Engadget Interview: Paul Aiken, Executive Director of the Authors Guild."

        [Aiken] Well, the legal objections fall in a couple categories. One is the basic copyright objection which I know has been bandied about a lot online, and that objection comes in two parts. There's the unauthorized reproduction of the work which is one claim under copyright law—for that there has to be fixation of the copy and there's a legal question as to whether or not there's adequate fixation in the Kindle. The second claim is that text-to-speech creates a derivative work, and under most theories of copyright law, there doesn't have to be fixation for there to be a derivative work created.

        Amazon's decision has been controversial. For example,here's an excerpt from Lawrence Lessig's "Caving into Bullies (Aka, Here We Go Again)":

        We had this battle before. In 2001, Adobe released e-book technology that gave rights holders (including publishers of public domain books) the ability to control whether the Adobe e-book reader read the book aloud. The story got famous when it was shown that one of its public domain works—Alice's Adventures in Wonderland—was marked to forbid the book to be read aloud. . . .

        But the bigger trend here is much more troubling: Innovative technology company (Amazon (Kindle 2), Google (Google Books)) releases new innovative way to access or use content; so-called "representatives" of rights owners, Corleone-like, baselessly insist on a cut; innovative technology company settles with baseless demanders, and we're all arguably worse off.

        We're worse off with the Kindle because if the right get set by the industry that publishers get to control a right which Congress hasn't given them—the right to control whether I can read my book to my kid, or my Kindle can read a book to me—users and innovators have less freedom. And we may be worse off with Google Books, because (in ways not clear when the settlement was first reported) the consequence of the class action mechanism may well disable users and innovators from doing what fair use plainly entitled Google to do.

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          ACRL, ALA, and ARL Will File Google Book Search Settlement Amicus Brief

          Posted in ALA, ARL Libraries, Copyright, Digital Copyright Wars, Google and Other Search Engines, Mass Digitizaton, Publishing on February 27th, 2009

          The American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries will file an amicus brief authored by Jonathan Band about the Google Book Search Settlement.

          Read more about it at "Library Organizations to File Amicus Brief in Google Book Search Settlement."

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            "The Kindle Swindle?"

            Posted in Copyright, Digital Copyright Wars, E-Books, Publishing on February 25th, 2009

            In "The Kindle Swindle?," Roy Blount Jr., President of the Authors Guild, defends the Guild's opposition to the Kindle's ability to read books and other works aloud.

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              New Zealand Delays Law That Would Terminate Internet Accounts of Repeat Copyright Infringers

              Posted in Copyright, Digital Copyright Wars, Legislation and Government Regulation on February 24th, 2009

              New Zealand's prime minister is delaying the implementation of a controversial new copyright law that will force ISP's to terminate the accounts of repeat copyright infringers until March 27th in order to study whether implementing the law is feasible.

              Here's an excerpt from the law:

              92A Internet service provider must have policy for terminating accounts of repeat infringer

              1. An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.
              2. In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

              Read more about it at "New Zealand P2P Disconnection Plan Delayed after Outcry"; "New Zealand Three Strikes Mandate Delayed"; and "Three Strikes Encounters Political, Netroots Opposition Down Under."

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                Walt Crawford on the Google Books Search Settlement

                Posted in Copyright, Digital Copyright Wars, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on February 22nd, 2009

                The latest issue of Cites & Insights: Crawford at Large is dedicated to an in-depth (30-page) look at the Google Book Search Copyright Class Action Settlement.

                Here's an excerpt:

                The agreement could be a lot worse. The outcome could also be a lot better. I'm sure Google would agree with both statements, as it finds itself in businesses where it has neither expertise nor much chance of advertising-level profits. At the same time, the copyright maximalists didn't quite win this round. We'll almost certainly get somewhat better access to several million OP books—and will have to hope (and work to see) that the price (monetary and otherwise) isn't too high.

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                  ALA, ARL, and ACRL Meeting on Google Book Search Settlement

                  Posted in ALA, ARL Libraries, Copyright, Digital Copyright Wars, E-Books, Google and Other Search Engines, Mass Digitizaton, Publishing on February 12th, 2009

                  In "ALA, ARL, ACRL Host Meeting of Experts to Discuss Google Book Search Settlement," District Dispatch reports on the numerous questions raised about the Google Book Search Settlement in a recent meeting on that topic.

                  Here's an excerpt :

                  • Access. What will the settlement mean for protecting the public’s ability to access and use digital resources from the nation’s libraries? Since the Book Rights Registry established as a condition of the settlement will represent the interests of the authors and publishers, who will represent the interests of libraries and the public? What are the financial implications of participation? Could the settlement create a monopoly that threatens the mission of libraries by raising the prices to an unreasonable level that limits public access?
                  • Intellectual freedom. Are there academic freedom issues to consider? What are the implications of Google’s ability to remove works at its discretion? Will there be notification of their removal? What are the issues regarding possible access and use restrictions on the Research Corpus?
                  • Equitable treatment. Since not all libraries are addressed in the settlement, what impact will it have on the diverse landscape of libraries? In light of tight economic times, will this negatively affect libraries with lean budgets? Will it expand the digital divide?
                  • Terms of use. Under the terms of the agreement, will library users continue to enjoy the same rights to information under copyright and other laws? Will the settlement impact the legal discussions and interpretations of library exceptions that allow for library lending, limited copying and preservation?
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                    Authors Guild vs. the New Kindle: Reading Aloud a Derivative Right

                    Posted in Copyright, Digital Copyright Wars on February 11th, 2009

                    In "New Kindle Audio Feature Causes a Stir," Paul Aiken, Executive Director of the Authors Guild, said about the new Kindle's read-aloud feature: "They don't have the right to read a book out loud. That's an audio right, which is derivative under copyright law."

                    In reaction, John Herrman at Gizmodo said ("Authors Guild Claims Kindle 2 Text-to-Speech Somehow Violates Copyright"): "the idea that a robotic reading of text is materially equivalent to a proper, recorded audio version of a book—read by the author in many cases—is ridiculous."

                    Mike Masnick at Techdirt said ("According To Author's Guild, You Cannot Read Books Out Loud"):

                    By that reasoning pretty much any use of text-to-speech software is illegal, which would make for a fascinating legal case. And, actually, if you take that reasoning further, any reading out loud from a book that is not yours is also a violation of copyright law, according to Aitken. Read to your kids at night? Watch out for the Authors Guild police banging down your door.

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                      Public Knowledge: Copyright Filtering May Be Added to Recovery and Reinvestment Act

                      Posted in Copyright, Digital Copyright Wars on February 11th, 2009

                      Public Knowledge has issued an action alert: "UPDATE: Say No to Copyright Filtering in Broadband Stimulus."

                      Here's an excerpt:

                      The House and Senate stimulus packages passed without copyright filtering language attached, but now the concern is that the language could return in the closed-door conference committee that works out the differences between the bills. Right now, we need you to contact those conferees and tell them to leave out this controversial provision.

                      Hollywood’s lobbyists are running all over the Hill to sneak in a copyright filtering provision into the stimulus package.

                      You can use the alert to send a message to your Congressional representative.

                      An older alert provides background information about a defeated amendment to the bill that lobbyists are apparently trying to revive in the conference committee.

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                        More Coverage of the Fair Copyright in Research Works Act

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

                        Here are some additional articles/postings about the Fair Copyright in Research Works Act.

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