DigitalKoans

A coalition of consumer advocate organizations has released Canadian Copyright Law: A Consumer White Paper.

Here's an excerpt from the Executive Summary:

Copyright law is designed to balance the interests of creators with the interests of the public. Copyright grants creators exclusive rights in their works as a reward for creativity that also serves as an incentive for the creation of new works. These rights are not absolute, but limited in nature, scope and time. These limits are essential to copyright’s greater design, for it is at the limits of copyright owners’ rights that important consumer interests come into play.

From a consumer’s perspective, copyright’s current balance is far from perfect. In fact, many consumer dealings with copyrighted content – ordinary dealings, like copying digital music onto a portable device, or using the digital video recorders sold by cable companies – technically infringe copyright. In these and many other cases, the law is simply out of step with reality. Simple, uncontroversial amendments to the Copyright Act can fix many of these failings.

Unfortunately, copyright policy makers are not focusing on consumer interests. Instead, recent proposals to amend the Copyright Act focus on expanding rights holder’s interests at Canadian consumer’s expense. We call on Canada’s law-makers to accommodate consumer interests in any revision to the Copyright Act currently under consideration. Additionally, we call on lawmakers to revise the Copyright Act to address important consumer concerns that are not yet under consideration at all.

Gordon Duggan has published a heavily linked comic called 51st State about the Canadian copyright reform conflict. All of the text is linked to sources that provide further background.

Australia, Canada, the European Union, Japan, Mexico, New Zealand, South Korea, Switzerland, and the United States have been conducting low-profile meetings about a new trade agreement that would significantly effect copyright laws in the participating countries if passed. It is called the Anti-Counterfeiting Trade Agreement, and a discussion paper was leaked in May. It may include provisions such as ISP disclosure of suspected infringers without a warrant.

Read more about it at "An ACTA Call to Arms: No More Secret Government," "The Art of the End Around," "Secret ACTA Treaty May Include ISP Filtering," "The Real ACTA Threat (It's Not iPod-Scanning Border Guards)," and "Speculation Persists on ACTA as First Official Meeting Concludes."

A technical report ("Challenges and Directions for Monitoring P2P File Sharing Networks—or—Why My Printer Received a DMCA Takedown Notice") by two researchers at the University of Washington's Department of Computer Science and Engineering calls into question the accuracy of media companies' BitTorrent infringement detection methods.

Here's an excerpt from the paper:

Copyright holders utilize inconclusive methods for identifying infringing BitTorrent users. We were able to generate hundreds of DMCA takedown notices for machines under our control at the University of Washington that were not downloading or sharing any content.

Read more about it at "The Inexact Science Behind DMCA Takedown Notices" and "Study Reveals Reckless Anti-Piracy Antics."

Orphan works bills in House (H.R. 5889, The Orphan Works Act of 2008) and the Senate (S. 2913, the Shawn Bentley Orphan Works Act of 2008) have been marked up by the appropriate Congressional committees. House testimony by Marybeth Peters, The Register of Copyrights, overviews the issues involved in the legislation.

The bills are not without controversy. Prominent copyright reformer Lawrence Lessig wrote an Op Ed piece in The New York Times opposing the bills, calling them "both unfair and unwise." Public Knowledge and others countered his objections. Various associations of content creators, such as photographers, have been vocal opponents of the bills.

Read more about it at "ASMP Urges Photographers to Oppose 'Orphan Works' Bill," "Issue Brief: Orphan Works," "Library Group Favors Senate over House Bill on Orphan Works," "Orphan Works," "Orphan Works Bill Clears Senate Committee, May Soon Find Home," "Release the Orphan Works!," "Senate Marks Up Orphan Works," and "Two Cartoon-Group Presidents Slam Possible 'Orphan Works' Legislation."

Here's a selection of recent news articles and Weblog postings about the Georgia State copyright infringement lawsuit. See my prior postings for further information about the suit ("Georgia State Copyright Infringement Suit Coverage and Commentary" and "Georgia State Sued by Three Publishers for Alleged Digital Copyright Infringement in E-Reserves, Course Management, and Other Systems").

"Academic Publishers Sue US Uni over Digital Course Material"

It is an estimate that electronic course packs now constitute half of all syllabus reading at American colleges and universities. . . . Cambridge University Press, for example charges 17 cents a page for each student for electronic use, and generally grants permission for use of as much as 20 percent of a book.

"Copyright Suit Tests How Much Is Too Much"

Indeed, the complaint notes that the three plaintiffs have published more than 100 books and monographs authored by GSU professors. That GSU is a nonprofit institution shouldn't have any bearing on how much unauthorized copying it can do, Smith [Frank Smith, Cambridge University Press] says.

"We're a nonprofit," he points out. "I assume they wouldn't want their classes flooded with students who weren't paying tuition, but you could say there's no extra cost to filling another desk. I'm sure they would resist that, and I could see why."

"Publishers vs Academics"

The educational area is one where courts have traditionally afforded a greater degree of leeway in fair use and even the plaintiff's lawyer has to admit that he can't find a law or binding precedent stating how much digital copying would be "not too much." It seems likely that if the case ever makes it as far as a decision that decision would be appealed. My personal opinion is that they'll work out a settlement before it gets that far—neither side wants to see a precedent set that would go against them. Plus there's a core reality that academic publishers and educational institutions exist in a kind of death-grip dependency that would harm both if it was violently broken.

"Publishing Group Hires Qorvis for Lawsuit Messaging"

The Association of American Publishers hired Qorvis to handle messaging for three academic publishers' copyright lawsuit against Georgia State University.

"Suing Georgia"

So, . . . what's left if you really, really, really believe that educators ought to be able to use whatever they need to and want to use in their classrooms without worrying about what it costs or whether it's fair use?

Consumer resistance, or OA.

"Temperance Is a Virtue"

If that case every reaches the stage of arguing the fair use defense, I hope the court will look very hard at the second fair use factor—the nature of the copyrighted work. Previously, the action on this factor has been minimal and has largely focused on published versus unpublished works and how much originality is necessary for "thick" or "thin" protection. But the economics of a particular segment of publishing, especially one as dysfunctional as scholarly publishing, ought to be considered when analyzing fair use, and factor two is a good place to do that. If the system is structured in a way that undermines the whole incentive purpose of copyright, as I have argued the scholarly publishing is, factor two, which really focuses on the expectations of creators of different types of works, should strongly favor an expansive application of fair use.

"What Does the Lawsuit against Georgia State Mean?"

There are a number of possible outcomes in this case. Settlement is possible. The complaint itself is somewhat vague in its details; while specific examples are provided for some of the allegedly infringing uses, the publishers provide no specific details or examples of professors linking to course material from their open web pages, or any information about specifically infringing behaviors within the course management system. Although it claims the copying is in excess of what is permitted as fair use, the publishers do not offer a specific discussion of what it considers to be the bounds of fair use, nor does it adequately define course packs, nor offer any interpretation of the cited cases against copy shops, other than to broadly claim that they act as guiding precedence.

EDUCAUSE has released a podcast on P2P file sharing called "Don't Download This Panel." The podcast is from a panel discussion about the topic at the EDUCAUSE 2008 Western Regional Conference.

The speakers are:

• Greg DePriest, Vice President, Technology Policy, NBC Universal
• Kenneth C. Green, Founding Director, The Campus Computing Project
• Fred von Lohmann, Senior Staff Attorney, Electronic Frontier Foundation
• Session moderator: Kent Wada, Director, IT Strategic Policy, UCLA

Here's a selection of news articles and Weblog postings about the Georgia State copyright infringement lawsuit.

"Coursepack Sharing: An Idea Whose Time Has Come?": John Mark Ockerbloom, who maintains The Online Books Page, looks at the suit from an open access point of view. He says:

But in a world that's brought us global content sharing systems like Flickr, CiteULike, and PubMedCentral, it's not that much of a stretch to imagine systems that would let instructors provide and share open access course readings more readily. A well-designed, browsable and searchable repository of such readings could provide a convenient way for professors to upload, organize, and disseminate open coursepacks for their students ("Just go to the OpenCoursePacks website, and type in the name of my course", they could say). The same site could also let profs could tag, annotate, and recommend their readings, thereby making it that much easier for other professors to find and include suitable open access content in their own coursepacks. With a good design, and suitable scale and interest, a coursepack sharing site could make a lot more good instructional material widely and freely used and shared.

"Georgia State Sued For Copyright Infringement": Information Media Partners supports the suit and provides an interesting comment about publishers' fear of entering the "valley of death" of the print-to-electronic transition.

"Oxford, Cambridge and Sage Sue Georgia State": Paul N. Courant, University Librarian and Dean of Libraries at the University of Michigan, reacts to the suit. In summary, he says:

Things have come to a pretty pass when academic institutions sue each other over academic matters. Even if the publishers prove to be right on the merits, the lawsuit ought to be the last resort, and student use of academic materials produced by academic institutions ought be priced at something like marginal cost, rather than at the price that maximizes profit. And one wonders why three rich and distinguished institutions would go af