Copyright – Page 32 – DigitalKoans

Google Books Bibliography, Version 7

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 |

"Talking about the Public Domain"

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 |

Opt-In Settlement for Google Books Case?

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.

| Digital Scholarship Publications Overview |

The Anti-Counterfeiting Trade Agreement (ACTA): An Assessment

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.

"After Google Book Search: Rebooting the Digital Library"

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 Overview Google Books Bibliography |

Fair Use in the U.S. Economy

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 |

Digital Copyright: "How PIPA Would Affect Colleges and Universities"

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.

"The Copyright Self-Help Movement: Initiatives in the Library Community"

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.

"Making Sense of Fair Use"

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 |

Major U.S. ISPs Agree to Copyright Alert Plan

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 |

Podcast: Pamela Samuelson on Codifying the Google Books Settlement

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.

"STM Submission on the Open Public Consultation on the European Institute of Innovation and Technology"

STM: International Association of Scientific, Technical & Medical Publishers has released "STM Submission on the Open Public Consultation on the European Institute of Innovation and Technology."

Here's an excerpt:

Because the public interest is not served if access to and dissemination of trusted scientific publications and data is not sustainable, rules governing publication must allow publishers to obtain the exclusive use of copyrighted content in relevant media. . . so that the substantial investments they make in scholarly communication can be recovered.

| Digital Scholarship Publications Overview |

Papers from Kenneth D. Crews’ Art Image Copyright and Licensing Study

Kenneth D. Crews has released a list of papers written in support of the Art Image Copyright and Licensing Study, which was funded by the Samuel H. Kress Foundation.

Read more about it at "Interim Report: Art Image Copyright and Licensing Study."

| Digital Curation and Preservation Bibliography 2010 | Electronic Theses and Dissertations Bibliography | Google Books Bibliography | Institutional Repository Bibliography | Transforming Scholarly Publishing through Open Access: A Bibliography | Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship Publications Overview |

Georgia State University Motion for Directed Verdict Granted in Part in Cambridge University Press et al. v. Patton et al. Case

U.S. District Court Judge Orinda D. Evans granted Georgia State University's motion for directed verdict in part in the Cambridge University Press et al. v. Patton et al. case. A directed verdict for the contributory infringement claim was granted.

Here's an excerpt from "Publishers Lose Another Claim as GSU Trial Comes to a Close" by Brandon Butler:

And just like that, Judge Orinda Evans threw out the second of the publishers' three claims. Now indirect infringement is the only remaining claim against GSU. . . .

This claim is the hardest one for GSU to avoid because, in theory, the publishers just have to find one infringement by one professor to prove GSU is an 'indirect infringer.'

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

Recent Commentary about the Georgia State E-Reserves Copyright Case (Cambridge University Press et al. v. Patton et al.)

Below is some recent commentary about the Cambridge University Press et al. v. Patton et al. case.

"A Nightmare Scenario for Higher Education" by Kevin Smith. Here's an excerpt:

First, if this injunction were adopted as proposed, it would enjoin everyone at Georgia State, including students, who would seem to largely lose their fair use rights by virtue of enrolling at GSU. It would apply to e-reserves, faculty web pages and any learning management systems in use or adopted in the future. It would make GSU responsible for every conceivable act of copying that took place on their campus. In short, administrators at Georgia State would have to look over the shoulders of each faculty member whenever they uploaded course material to an LMS or any other web page. . . .

Not only would GSU have to micromanage each faculty member’s choices about how to teach every class, they would also have to give the plaintiff publishers access to all of the computer systems on campus so that they too could examine each professor’s decisions.

"The Georgia State Filing—A Declaration of War on the Faculty?" by Paul Courant. Here's an excerpt:

Call me gullible, but even now I am not fully persuaded that academic publishers are the enemies of faculty and the university. However, I do think that something has gone horribly wrong when entities that were created to serve scholarship employ legal procedures that would hamstring scholars and students who engage in customary and effective behaviors in their teaching and learning. I hope that Judge Evans will recognize that the publishers’ proposal is a plain violation of copyright and would be destructive of vital public purposes.

"What's at Stake in the Georgia State Copyright Case." The Chronicle of Higher Education published comments from prominent experts in this article. Here's an excerpt from Dorothea Salo's contribution:

Should a ruling come down that adds so much complication, cost, or risk to provisions about electronic reserves that institutions and their libraries no longer feel safe offering them, faculty and librarians will unite at last in shared outrage on the far shore of the Rubicon.

"Georgia State, Copyright and the Future of Higher Education" by Tracy Mitrano. Here's an excerpt:

We need senior leadership in our institutions, guided by national associations, to pull that campus radical of the 1960's out of the suits and high heels we now don and get serious about a direction of change that preserves us.

"The Georgia State University Lawsuit Injunction: Back to the Future" by Peggy Hoon. Here's an excerpt:

However, this proposed injunction is so onerous, so intrusive, so far-reaching, and so incompatible with the reality of teaching and learning in the 21st century, that simply widely publicizing the existence of and contents of the proposed injunction may well achieve what the library community has been trying to do for the last twenty years.

**WAKE UP THE FACULTY AND MOBILIZE THEM TO RECLAIM CONTROL OF THEIR OWN WORKS OF AUTHORSHIP AND THEIR OWN SYSTEM OF SCHOLARLY COMMUNICATION.**

This injunction is your fuel—now LIGHT that fire!

| Digital Scholarship | Digital Scholarship Publications Overview |

Maria Pallante Named Register of Copyrights

Maria Pallante has been named Register of Copyrights.

Here's an excerpt from the press release:

Librarian of Congress James H. Billington has appointed Maria A. Pallante as the 12th Register of Copyrights and director of the United States Copyright Office, effective today. Pallante served as the Acting Register for the past five months, following the retirement of Marybeth Peters on December 31, 2010. . . .

Pallante has had wide-ranging experience in copyright transactions, policy and litigation, in both the government and private sectors. In addition to Acting Register, she has held several key positions within the Copyright Office: Associate Register for Policy and International Affairs (2008-2010), Deputy General Counsel (2007-2008), and Policy Advisor (1996-1997). She spent much of her career in New York, working there from 1999-2007 as intellectual property counsel and director of the licensing group for the worldwide Guggenheim Museums, where she advised on programmatic and business initiatives related to publishing, product development and branding. She has led two national author organizations, working as Executive Director of the National Writers Union (1993-1995) and as Assistant Director of the Authors Guild (1991-1993), and was associate counsel at the Washington-based law firm and literary agency, Lichtman, Trister, Singer and Ross.

Pallante is a 1990 graduate of the George Washington University Law School. She earned her bachelor’s degree in history from Misericordia University, where she was also awarded an honorary doctorate of humane letters. She completed a clerkship in administrative law under the Hon. G. Marvin Bober, appellate division, U.S. Department of Labor. During her career, Pallante has been a frequent speaker on copyright law at events in the United States and abroad, and has testified before Congress several times, including on the Copyright Reform Act (1993); Orphan Works (2006) and Online Enforcement of Rogue Websites (2011). She was a member of the Librarian’s 1993 Advisory Committee on Copyright Registration and Deposit and is currently serving on the Department of Education's Advisory Commission on Accessible Instructional Materials in Post-Secondary Education for Students with Disabilities.

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

"Owning the Right to Open Up Access to Scientific Publications"

Lucie Guibault has self-archived "Owning the Right to Open Up Access to Scientific Publications" in SSRN.

Here's an excerpt:

Whether the researchers themselves, rather than the institution they work for, are at all in a position to implement OA principles actually depends on the initial allocation of rights on their works. Whereas most European Union Member States have legislation that provides that the copyright owner is the natural person who created the work, the copyright laws of a number European countries, including those of the Netherlands and the United Kingdom, establish a presumption, according to which the copyright of works made in the course of employment belongs initially to the employer, which in this case would be the university. In France, a similar presumption applies to works created by employees of the State. Even if researchers are in a position to exercise the rights on their works, they may, nevertheless, be required to transfer these to a publisher in order to get their article or book published. This paper, therefore, analyses the legal position of researchers, research institutions and publishers respectively, and considers what the consequences are for the promotion of OA publishing in light of the principles laid down in the Berlin Declaration and the use of Creative Commons licenses.

| Digital Scholarship | Digital Scholarship Publications Overview | Transforming Scholarly Publishing through Open Access: A Bibliography |

S.978 Would Make Unauthorized Streaming a Felony with 5 Year Maximum Sentence

Senator Amy Klobuchar and two cosponsors have introduced S.978, which would make unauthorized streaming of copyrighted works a felony.

Here's an excerpt:

‘(2) shall be imprisoned not more than 5 years, fined in the amount set forth in this title, or both, if–

‘(A) the offense consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works; and

‘(B)(i) the total retail value of the performances, or the total economic value of such public performances to the infringer or to the copyright owner, would exceed $2,500; or

‘(ii) the total fair market value of licenses to offer performances of those works would exceed $5,000;’

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

Library Copyright Alliance Statement on Copyright Reform

The Library Copyright Alliance has issued a statement on copyright reform.

Here's an excerpt:

Because of the favorable treatment such activities likely would receive in the courts under sections 107 and 504(c)(2), libraries would support an effort to amend the Copyright Act to benefit libraries only if it offered significant benefits over the status quo. To do so, a proposal must contain at least the following features:

The non-commercial use (i.e., reproduction, distribution, public performance, public display, or preparation of a derivative work) by a nonprofit library or archives of a work when it possesses a copy of that work in its collection:

would not be subject to statutory damages;

would not be subject to actual damages if the use ceases when the library or archives receives an objection from the copyright owner of the work; and

would be subject to injunctive relief only to the extent that the use continues after the library or archives receives an objection from the copyright owner of the work.

This limitation on remedies would apply to the employees of the library or archives, as well as to a consortium that includes the library or archives.

Copyright owner objections would have no effect on a library’s rights under fair use.

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

PROTECT IP Act Introduced in Senate

Senators Patrick Leahy (D-Vt.), Orrin Hatch (R-Utah), and Chuck Grassley (R-Iowa) have introduced the PROTECT IP Act (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act) in the Senate.

Here's an excerpt from the press release:

The Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, or PROTECT IP Act, follows bipartisan legislation introduced in 2010, which won the unanimous support of Senate Judiciary Committee members. The PROTECT IP Act narrows the definition of a rogue website, while ensuring that law enforcement can get at the "worst-of-the-worst" websites dedicated to selling infringing goods. Copyright infringement and the sale of counterfeit goods reported cost the U.S. economy billions of dollars and hundreds of thousands of jobs, as well as billions of dollars in lost tax revenue for federal, state and local governments. . . .

The PROTECT IP Act will provide law enforcement with important tools to stop websites dedicated to online piracy and the sale of counterfeit goods, which range from new movie and music releases, to pharmaceuticals and consumer products. Key updates to the PROTECT IP Act include:

A narrower definition of an Internet site "dedicated to infringing activities";

Authorization for the Attorney General to serve an issued court order on a search engine, in addition to payment processors, advertising networks and Internet service providers;

Authorization for both the Attorney General and rights holders to bring actions against online infringers operating an internet site or domain where the site is "dedicated to infringing activities," but with remedies limited to eliminating the financial viability of the site, not blocking access;

Requirement of plaintiffs to attempt to bring an action against the owner or registrant of the domain name used to access an Internet site "dedicated to infringing activities" before bringing an action against the domain name itself;

Protection for domain name registries, registrars, search engines, payment processors, and advertising networks from damages resulting from their voluntary action against an Internet site "dedicated to infringing activities," where that site also "endangers the public health," by offering controlled or non-controlled prescription medication.

E-Reserves and Copyright: Proposed Injunction in Cambridge University Press et al. v. Patton et al. Case

Cambridge University Press and other plaintiffs have submitted a proposed injunction in the Cambridge University Press et al. v. Patton et al. case. The trial starts on 5/16/11.

Here's an excerpt:

II. Subject only to the provisions of Paragraph III hereof, GSU shall be and is permanently enjoined and restrained from creating, reproducing, transmitting, selling, or in any manner distributing, or assisting, participating in, soliciting, encouraging, or facilitating the creation, reproduction, download, display, sale, or distribution in any manner of, copies, whether in hard copy format, digital or electronic computer files, or any other format, of any and all Works without permission.

A Canadian Museum’s Guide to Developing a Digital Licensing Agreement Strategy

The Canadian Heritage Information Network has released A Canadian Museum's Guide to Developing a Digital Licensing Agreement Strategy.

Here's an excerpt:

This book was written to provide information, from the unique perspective of Canadian museums, on how to develop a digital licensing agreement strategy. This second edition continues along this stream to provide a unique Canadian perspective as museums dive into the global scene of licensing their content. I hope to inform you about legal rights and obligations in licence agreements, creating your licensing agreement strategy, negotiating the best licences to meet your needs, lowering your legal liability when licensing and sharing content, and the variety of licensing arrangements which may be used.

| Digital Scholarship | Digital Scholarship Publications Overview | Digital Curation and Preservation Bibliography 2010 |

Digitisation Audiovisual Materials Heritage Institutions: Models for Licenses and Compensations

Images for the Future has released Digitisation Audiovisual Materials Heritage Institutions: Models for Licenses and Compensations (English summary).

Here's an excerpt from the announcement:

While digitising for preservation purposes has been permitted since 2004 under strict conditions in accordance with Art. 16n of the Dutch Copyright Act, for the reutilisation of digitized material (e.g. on websites or by means of retransmission by radio or television) permission must be sought and obtained from large numbers of rights holders. For large digitisation projects, such as Beelden voor de Toekomst (Images for the Future), this means a rights clearance operation of dizzying proportions. In addition, digitisation projects face great uncertainty with regard to the level of the copyright license fees due. Given this background the Images for the Future consortium has commissioned the Institute for Information Law (hereinafter IViR) to investigate models for licenses and fees for mass digitisation projects.

| Digital Scholarship | Digital Scholarship Publications Overview | Scholarly Electronic Publishing Bibliography 2010 |

"Just Google It!—The Google Book Search Settlement: A Law and Economics Analysis"

Frank Müller-Langer and Marc Scheufen have self-archived "Just Google It!—The Google Book Search Settlement: A Law and Economics Analysis" in SSRN.

Here's an excerpt:

Our law and economics analysis of the Book Search Project suggests that—from a copyright perspective—the proposed settlement may be beneficial to right holders, consumers, and Google. For instance, it may provide a solution to the still unsolved dilemma of orphan works. From a competition policy perspective, we stress the important aspect that Google’s pricing algorithm for orphan and unclaimed works effectively replicates a competitive Nash-Bertrand market outcome under post-settlement, third-party oversight.

"Tragedy of the Data Commons"

Jane Yakowitz has self-archived "Tragedy of the Data Commons" in SSRN.

Here's an excerpt:

Accurate data is vital to enlightened research and policymaking, particularly publicly available data that are redacted to protect the identity of individuals. Legal academics, however, are campaigning against data anonymization as a means to protect privacy, contending that wealth of information available on the Internet enables malfeasors to reverse-engineer the data and identify individuals within them. Privacy scholars advocate for new legal restrictions on the collection and dissemination of research data. This Article challenges the dominant wisdom, arguing that properly de-identified data is not only safe, but of extraordinary social utility. It makes three core claims. First, legal scholars have misinterpreted the relevant literature from computer science and statistics, and thus have significantly overstated the futility of anonymizing data. Second, the available evidence demonstrates that the risks from anonymized data are theoretical – they rarely, if ever, materialize. Finally, anonymized data is crucial to beneficial social research, and constitutes a public resource – a commons – under threat of depletion. The Article concludes with a radical proposal: since current privacy policies overtax valuable research without reducing any realistic risks, law should provide a safe harbor for the dissemination of research data.

| Digital Scholarship | Digital Scholarship Publications Overview | Digital Curation and Preservation Bibliography 2010 |