Copyright – Page 38 – DigitalKoans

Comments on U.S. Copyright Office's "Mandatory Deposit of Published Electronic Works Available Only Online" Proposal

Comments on the U.S. Copyright Office's "Mandatory Deposit of Published Electronic Works Available Only Online" proposal are available, including comments by the American Library Association and the Association of Research Libraries.

Here's the Copyright Office's description of the proposal:

The Copyright Office of the Library of Congress is proposing to amend its regulations governing mandatory deposit of electronic works published in the United States and available only online.

The amendments would establish that such works are exempt from mandatory deposit until a demand for deposit of copies or phonorecords of such works is issued by the Copyright Office. They would also set forth the process for issuing and responding to a demand for deposit, amend the definition of a "complete copy" of a work for purposes of mandatory deposit of online—only works, and establish new best edition criteria for electronic serials available only online. The Copyright Office seeks public comment on these proposed revisions.

Litman on "Real Copyright Reform"

Jessica Litman, John F. Nickoll Professor of Law at the University of Michigan Law School, has self-archived "Real Copyright Reform" at SSRN.

Here's the abstract:

A copyright system is designed to produce an ecology that nurtures the creation, dissemination and enjoyment of works of authorship. When it works well, it encourages creators to generate new works, assists intermediaries in disseminating them widely, and supports readers, listeners and viewers in enjoying them. If the system poses difficult entry barriers to creators, imposes demanding impediments on intermediaries, or inflicts burdensome conditions and hurdles on readers, then the system fails to achieve at least some of its purposes. The current U.S. copyright statute is flawed in all three respects. In this article, I explore how the current copyright system is failing its intended beneficiaries. The foundation of copyright law's legitimacy, I argue, derives from its evident benefits for creators and for readers. That foundation is badly cracked, in large part because of the perception that modern copyright law is not especially kind to either creators or to readers; instead, it concentrates power in the hands of the intermediaries who control the conduits between creators and their audience. Those intermediaries have recently used their influence and their copyright rights to obstruct one another's exploitation of copyrighted works. I argue that the concentration of copyright rights in the hands of intermediaries made more economic sense in earlier eras than it does today. The key to real copyright reform, I suggest, is to reallocate copyright's benefits to give more rights to creators, greater liberty to readers, and less control to copyright intermediaries.

U.S. Department of Justice Files Objection to Google Book Search Settlement

The U.S. Department of Justice has filed an objection to the Google Book Search Settlement.

Here's an excerpt:

Nonetheless, the breadth of the Proposed Settlement—especially the forward-looking business arrangements it seeks to create—raises significant legal concerns. As a threshold matter, the central difficulty that the Proposed Settlement seeks to overcome—the inaccessibility of many works due to the lack of clarity about copyright ownership and copyright status—is a matter of public, not merely private, concern. A global disposition of the rights to millions of copyrighted works is typically the kind of policy change implemented through legislation, not through a private judicial settlement. If such a significant (and potentially beneficial) policy change is to be made through the mechanism of a class action settlement (as opposed to legislation), the United States respectfully submits that this Court should undertake a particularly searching analysis to ensure that the requirements of Federal Rule of Civil Procedure 23 ("Rule 23") are met and that the settlement is consistent with copyright law and antitrust law. As presently drafted, the Proposed Settlement does not meet the legal standards this Court must apply.

This Memorandum sets forth the concerns of the United States with respect to the current version of the Proposed Settlement; these concerns may be obviated by the parties' subsequent changes to the agreement. Commenters' objections to the Proposed Settlement fall into three basic categories: (1) claims that the Proposed Settlement fails to satisfy Rule 23; (2) claims that the Proposed Settlement would violate copyright law; and (3) claims that the Proposed Settlement would violate antitrust law. In the view of the United States, each category of objection is serious in isolation, and, taken together, raise cause for concern. . . .

This Court should reject the Proposed Settlement in its current form and encourage the parties to continue negotiations to modify it so as to comply with Rule 23 and the copyright and antitrust laws.

NPR Interview: "Who Should Control The Virtual Library?"

NPR has released a digital audio recording and transcript of an interview with Daphne Keller (Google), Fred Von Lohmann (EFF), and Jessica Vascellaro (Wall Street Journal) about the Google Book Search Settlement.

Here's an excerpt:

[Von Lohmann] Unlike a bookstore or even a library, because these books will live online on Google's computers, where you will be accessing them, Google will have the ability to watch every page you read, how long you spend on any particular page, what page you read a minute ago and what page you're going to read a week from now. It really is as though every book comes with a surveillance camera that comes home with you. So we think it's really critical that this arrangement builds in real strong privacy protections because our nation's bookstores and libraries have fought hard for that, and we think we should accept no less online.

University of Michigan Press Opts in to Google Settlement

The University of Michigan Press has opted in to the Google Book Search Settlement.

Here's an excerpt from the announcement:

University of Michigan Press has decided to opt in to the terms of the Settlement and is beginning the process of claiming books digitized by Google under its Book Search program. We will claim all titles under copyright on behalf of our authors.

Moral Panics and the Copyright Wars

Noted copyright expert William Patry, Senior Copyright Counsel at Google and former copyright counsel to the U.S. House of Representatives Committee on the Judiciary, has published Moral Panics and the Copyright Wars with Oxford University Press. Patry is also blogging on this topic at Moral Panics and the Copyright Wars. (His well-regarded previous blog was The Patry Copyright Blog.)

Here's an excerpt from the press release:

In Moral Panics And The Copyright Wars, Patry details the path that we have taken to get to our current misunderstanding of copyright laws. The most prolific scholar of copyright in history and the author of an eight-volume treatise on copyright and a separate treatise on the fair use doctrine, Patry argues that the cause of these copyright wars throughout history can be largely attributed to words—specifically, metaphors. Patry describes different kinds of metaphors, using them to further illustrate the ways that copyright laws have come to be unnecessarily expanded and misunderstood. For example, nowadays the term "pirate" is used in many instances to describe a type of copyright violation. Patry writes that it is the repetition of the pirate metaphor that makes the term stick, although the metaphor may be used incorrectly or may even be entirely false. This repetition of such metaphors causes whatever company or individual that has come to be associated with the word "pirate" to always be attached to the negative traits associated with a "pirate." This is just one of the ways that Patry shows the influence that words have had in negatively expanding copyright laws as well as causing the public, those who the laws are meant to help, to misunderstand them.

Patry contends that it has been this metaphoric language that has led to poor business decisions and obscured copyright law's true, public purpose. He concludes that calls for strong copyright laws, just like calls for weak copyright laws, miss the point entirely: the only laws we need are effective laws, laws that further the purpose of encouraging the creation of new works and learning—and that bring respect back to our copyright process.

Defining "Noncommercial": A Study of How the Online Population Understands "Noncommercial Use"

The Creative Commons has released Defining "Noncommercial": A Study of How the Online Population Understands "Noncommercial Use".

Here's an excerpt:

In 2008-09, Creative Commons commissioned a study from a professional market research firm to explore understandings of the terms"commercial us" and "noncommercial use" among Internet users when used in the context of content found online.

The empirical findings suggest that creators and users approach the question of noncommercial use similarly and that overall, online U.S. creators and users are more alike than different in their understanding of noncommercial use. Both creators and users generally consider uses that earn users money or involve online advertising to be commercial, while uses by organizations, by individuals, or for charitable purposes are less commercial but not decidedly noncommercial. Similarly, uses by for-profit companies are typically considered more commercial. Perceptions of the many use cases studied suggest that with the exception of uses that earn users money or involve advertising—at least until specific case scenarios are presented that disrupt those generalized views of commerciality—there is more uncertainty than clarity around whether specific uses of online content are commercial or noncommercial.

Uses that are more difficult to classify as either commercial or noncommercial also show greater (and often statistically significant) differences between creators and users. As a general rule, creators consider the uses studied to be more noncommercial (less commercial) than users. For example, uses by a not-for-profit organization are generally thought less commercial than uses by a for-profit organization, and even less so by creators than users. The one exception to this pattern is in relation to uses by individuals that are personal or private in nature. Here, it is users (not creators) who believe such uses are less commercial.

The most notable differences among subgroups within each sample of creators and users are between creators who make money from their works, and those who do not, and between users who make money from their uses of others' works, and those who do not. In both cases, those who make money generally rate the uses studied less commercial than those who do not make money. The one exception is, again, with respect to personal or private uses by individuals: users who make money consider these uses more commercial than those who do not make money.

ARL Releases "Summary on House Committee on the Judiciary Hearing: 'Competition and Commerce in Digital Books' (Sept. 10, '09)"

The Association of Research Libraries has released "Summary on House Committee on the Judiciary Hearing: 'Competition and Commerce in Digital Books' (Sept. 10, '09)."

Here's an excerpt:

The panel of witnesses was evenly divided on these issues, with four unequivocally in favor of the settlement, including representatives from Google and the Authors Guild. Three witnesses were unequivocally opposed, including Register of Copyrights Marybeth Peters and a representative from Amazon.com. The eighth witness, law professor Randall Picker of the University of Chicago, was ambivalent and suggested several changes that he felt would cure potential problems with the Settlement. A complete list of witnesses appears on the last page of this summary, with hyperlinks to the written testimony of each witness.

"Looking for Fair Use in the DMCA's Safety Dance"

Ira S. Nathenson, Assistant Professor of Law at St. Thomas University, has self-archived "Looking for Fair Use in the DMCA's Safety Dance" at SSRN.

Here's an excerpt:

Like a ballet, the notice-and-take-down provisions of the Digital Millennium Copyright Act ('DMCA') provide complex procedures to obtain take-downs of online infringement. Copyright owners send notices of infringement to service providers, who in turn remove claimed infringement in exchange for a statutory safe harbor from copyright liability. But like a dance meant for two, the DMCA is less effective in protecting the 'third wheel,' the users of internet services. Even Senator John McCain—who in 1998 voted for the DMCA—wrote in exasperation to YouTube after some of his presidential campaign videos were removed due to take-downs. McCain asked YouTube to review take-downs targeting campaign videos before removing them. Unsurprisingly, YouTube declined in fear of losing its safe harbor.

This Article does not adopt McCain's suggestion that service providers engage in individualized review of campaign take-downs. But this Article takes extremely seriously an assumption underlying McCain's request, namely, that fair use might be better protected by the DMCA as it is currently written. This Article puts forth a 'fair-use friendly' way of reading the DMCA to better protect users of online services. As a starting point, as noted by the court in Lenz v. Universal Music, copyright owners must consider fair and other non-infringing uses before sending take-down notices. Expanding upon Lenz, this Article examines the structure of the Copyright Act and broader principles of procedural fairness, concluding that permitting copyright owners to obtain removal of fairly used materials would accomplish de facto ex parte seizures of speech. Accordingly, copyright owners must "stop and think" before sending take-downs.

Digital Video: Google's Chief Legal Officer Testifies at Hearing on "Competition and Commerce in Digital Books"

A digital video of David C. Drummond, Senior Vice President of Corporate Development and Chief Legal Officer at Google, testifying at the House Judiciary Committee hearing on "Competition and Commerce in Digital Books" is available on YouTube.

Google Book Search Bibliography, Version 5

Version 5 of the Google Book Search Bibliography is now available from Digital Scholarship.

This bibliography presents selected English-language articles and other works that are useful in understanding Google Book Search. It primarily focuses on the evolution of Google Book Search and the legal, library, and social issues associated with it. Where possible, links are provided to works that are freely available on the Internet, including e-prints in disciplinary archives and institutional repositories. Note that e-prints and published articles may not be identical.

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

Electronic Theses and Dissertations Bibliography, Version 4 (7/15/2009)
Scholarly Electronic Publishing Bibliography: 2008 Annual Edition (7/10/2009)
Scholarly Electronic Publishing Bibliography, Version 76 (9/8/2009)

ALA, ACRL, and ARL Submit Supplemental Filing about Google Book Search Settlement

The American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries have submitted a supplemental filing regarding the Google Book Search Settlement.

Here's an excerpt from the announcement:

While the library associations' position has not changed since their initial filing, the groups believe that recent activity, such as an amended agreement reached between Google and the University of Michigan, the University of Texas-Austin and the University of Wisconsin-Madison, Google's recent public statement regarding privacy, and the library associations' communication with the Antitrust Division of the U.S. Department of Justice (DOJ) should be brought to the court's attention. In their supplemental filing, the library associations call upon the court to address concerns with pricing review, to direct Google to provide more detail on privacy issues, and to broaden representation on the Books Rights Registry.

Federal Republic of Germany Opposes Google Book Search Settlement

The Federal Republic of Germany has filed a lengthy objection to the Google Book Search Settlement.

Here's an excerpt:

The proposed Settlement also attempts to characterize itself as applying to actions taken only within the United States and, hence, without impact in other countries where U.S. copyright rules do not apply. Nowhere is this more clearly incorrect than in the realm of making the books available over the Internet. . . .

Privacy is another key area of conflict. The proposed Settlement has few provisions protecting the privacy of authors, publishers or users. In sharp contrast, Germany strongly protects the privacy of individuals who use the Internet through the Federal Data Protection Act (Bundesdatenschutzgesetz or "BDSG") of 1990, as amended in 2009, and the Telemedia Act (Telemediengesetz or "TMG") of 2007, as amended in 2009. . . .

The proposed Settlement raises an even more fundamental issue of fairness, causing concern that German authors may find their own voices unheard. The plaintiff Authors Guild, representative of the author sub-class, cannot adequately and fairly represent German authors or their interests because of its limitations on membership. For an author to join the Authors Guild, he or she must have been published by an established American publisher. . . .

Similarly, the plaintiff Association of American Publishers does not adequately and fairly represent German publishers or their interests because its membership is only open to "all U.S. companies actively engaged in the publication of books, journals, and related electronic media." . . .

For the reasons summarized above [the text has more objections than those abridged here], the proposed Settlement will have an immediate impact upon German authors, publishers and digital libraries by setting a industry-changing precedent that not only gives defendant Google an unfair advantage over all other digital libraries (commercial and non-commercial) in the United States and Germany, but also will flout German laws that have been established to protect German authors and publishers, including with respect to digital copying, publishing and the dissemination of their works. The decision of this Court with respect to this Settlement will have the dramatic and long-range effect of creating a new worldwide copyright regime without any input from those who will be greatly impacted — German authors, publishers and digital libraries and German citizens who seek to obtain access to digital publications through the Google service.

"Google Book Search Settlement: A Publisher's Viewpoint"

In "Google Book Search Settlement: A Publisher's Viewpoint," Tim Barton and Barbara Cohen of Oxford University Press discuss the Google Book Search Settlement with Mary Minow.

Here's an excerpt:

[Barton] Finally, it is also worth considering what happens if the settlement fails. The settlement offers us a vision of a world where all Americans have access—for free—via c. 20,000 public libraries and higher education institutions—to millions of works which are not now available. They would also have substantial free access to those same titles from every (online) computer in the country. Consumers could also purchase these titles (for what I believe will be a reasonable price), and institutions can subscribe to them (again for what I believe will be a reasonable price). The alternative is access to snippets, at most.

The availability of a book used to be determined either by whether a publisher could justify a print run, or by access to the specialized collections of a relatively small number of libraries. Printing technology and cost structures meant that books were put out of print long before their useful lives were over. We now live in a time when technology and the different commercial dynamics around internet search have combined to give us an unprecedented opportunity to make available again the ideas and work of millions of such books written by generations of scholars and writers. Why wouldn't we grasp that opportunity?

"Shrinking the Commons: Termination of Copyright Licenses and Transfers for the Benefit of the Public"

Timothy K. Armstrong has self-archived "Shrinking the Commons: Termination of Copyright Licenses and Transfers for the Benefit of the Public" in SSRN.

Here's an excerpt:

Federal law limits the free alienability of copyright rights to prevent powerful transferees from forcing authors into unremunerative bargains. The limiting mechanism is a statutory provision that permits authors or their heirs, at their sole election, to terminate any transfer or license of any copyright interest during a defined period. Indeed, the applicable provisions of the Copyright Act go so far as to invalidate purported waivers by authors of their statutory termination powers.

These statutory provisions may constitute an impediment to the effective grant of rights for the benefit of the public under widely used "open content" licensing arrangements, such as the GNU General Public License ("GPL") for software or the Creative Commons family of licenses for other sorts of expressive works. Although recent case law suggests that such open-source or open-content licensing arrangements should be analyzed under the same rules that govern other copyright licenses, doing so necessarily raises the possibility of termination of the license. If GPL or Creative Commons-type licenses are subject to later termination by authors (or their heirs), and this termination power cannot validly be waived, then users of such works must confront the possibility that the licenses may be revoked in the future and the works effectively withdrawn from public use, with potentially chaotic results.

Although a number of judge-made doctrines may be invoked to restrict termination of a license granted for the benefit of the public, the better course would be for Congress to enact new legislation expressly authorizing authors to make a nonwaiveable, irrevocable dedication of their works, in whole or in part, to the use and benefit of the public—a possibility that the Patent Act expressly recognizes, but the Copyright Act presently does not.

"Digital Library Europeana Said to Be Europe’s Answer to Google Books Settlement"

In "Digital Library Europeana Said To Be Europe’s Answer to Google Books Settlement," Dugie Standeford examines Google Book Search in the European context and considers whether Europeana can compete with it.

Here's an excerpt:

Europeana has the potential to be the "Google-like service Europe needs" but as part of a broader vision, said Europeana Marketing and Communications Manager Jonathan Purday. The EC has enabled Europeana to become operational and laid the foundations for an integrated platform providing access from museums, archives, libraries and audiovisual collections. But the digital library's future "depends on countries scaling up their digitisation efforts" and unifying their fragmented legal framework, he said.

"Is Creative Commons Good for Copyright?"

Copycense has published an editorial asking "Is Creative Commons Good for Copyright?"

Here's an excerpt:

We conclude now, as we did in 2007, that the continued use and prominence of Creative Commons licenses actually obscures the real copyright issues we face in this country, and keeps Americans from settling on the proper parameters of digital information use, access, retrieval and preservation in the 21st century.

"Google and the Proper Antitrust Scrutiny of Orphan Books"

Jerry A. Hausman and J. Gregory Sidak have self-archived "Google and the Proper Antitrust Scrutiny of Orphan Books" in SSRN.

Here's an excerpt:

We examine the consumer-welfare implications of Google's project to scan a large proportion of the world's books into digital form and to make these works accessible to consumers through Google Book Search (GBS). In response to a class action alleging copyright infringement, Google has agreed to a settlement with the plaintiffs, which include the Authors Guild and the Association of American Publishers. A federal district court must approve the settlement for it to take effect. Various individuals and organizations have advocated modification or rejection of the settlement, based in part on concerns regarding Google's claimed ability to exercise market power. The Antitrust Division has confirmed that it is investigating the settlement. We address concerns of Professor Randal Picker and others, especially concerns over the increased access to 'orphan books,' which are books that retain their copyright but for which the copyright holders are unknown or cannot be found. The increased accessibility of orphan books under GBS involves the creation of a new product, which entails large gains in consumer welfare. We consider it unlikely that Google could exercise market power over orphan books. We consider it remote that the static efficiency losses claimed by critics of the settlement could outweigh the consumer welfare gains from the creation of a valuable new service for expanding access to orphan books. We therefore conclude that neither antitrust intervention nor price regulation of access to orphan books under GBS would be justified on economic grounds.

European Commission Report: Europeana—Next StepsEuropean Commission Report: Europeana—Next Steps

The European Commission has published Europeana—Next Steps.

Here's an excerpt:

Europeana—Europe's online library, museum and archive—opened in November 2008 as part of the Commission's digital libraries initiative, aiming to make Europe's cultural and scientific heritage accessible to all on the internet. The European Parliament and the Council have highlighted the importance of Europeana both as a showcase of the cultural heritage of the Member States on the internet and to provide access for everyone to that heritage. At the same time they have underlined the economic potential of making our cultural treasures available online as a source for creativity and new products and services in areas such as tourism and learning.

This document looks ahead to the next phase of development of Europeana and its orientation for the future. It sets out the main challenges for the coming years in relation to 1) enriching Europeana’s content with both public domain and in copyright material of the highest quality and relevance to users, and 2) a sustainable financing and governance model. The objective is to ensure that Europeana and the underlying policies for digitisation, online accessibility and digital preservation give European culture a lasting visibility on the internet and turn our common and diverse heritage into an integral part of Europe's information infrastructure for the future.

In order to gather input on the best way to achieve this objective, the Commission is launching a consultation on the basis of a series of questions that can be found in the staff working paper accompanying this Communication. Interested parties are invited to submit their comments on any or all of the questions by 15 November 2009.

The Google Books Settlement and the Future of Information Access Conference

The University of California School of Information's Google Books Settlement and the Future of Information Access Conference was held on August 28, 2009. Below is a selection of articles and posts about the conference.

Open Book Alliance Outlines Arguments against Google Book Search Settlement

In "Opening the Book," Peter Brantley and Gary Reback outline the Open Book Alliance's objections to the Google Book Search Settlement.

Here's an excerpt:

The settlement is bad for libraries and schools: While a handful of large and well-funded university libraries participated in the Google book-scanning effort, many other educational institutions and libraries will be forced to pay monopoly prices for access to a wide swath of knowledge, straining already-stretched budgets and creating a system of haves and have-nots in our nation's education system. Community libraries would get at a single terminal to Google's private book database, and libraries serving our nation's children in K-12 schools would get absolutely nothing. The settlement widens the digital divide by limiting access to digital books in financially hard-hit communities that have budget-constrained libraries.

An Evaluation of Private Foundation Copyright Licensing Policies, Practices and Opportunities

The Berkman Center for Internet & Society has released An Evaluation of Private Foundation Copyright Licensing Policies

Here's an excerpt:

This project, a joint effort of the Berkman Center, The William and Flora Hewlett Foundation, The Ford Foundation and the Open Society Institute, with funding from Hewlett and Ford, undertook to examine the copyright licensing policies and practices of a group of twelve private foundations. In particular, it looked at the extent to which charitable foundations are aware of and have begun to use open licenses such as Creative Commons or the GPL. We surveyed foundation staff and leaders and examined a number of examples where foundations have begun to take advantage of new licensing models for materials and resources produced by their own staff, their consultants and their grantees. The complete results of our study and our comprehensive analysis and recommendations are contained in the full Report of this project.

Publishers Weekly Surveys on the Google Book Search Settlement

In "Unsettled: The PW Survey on the Google Book Settlement," Andrew Richard Albanese summarizes the findings of a survey of readers of Publishers Weekly newsletters about the Google Book Search Copyright Class Action Settlement.

Here's an excerpt:

If there is good news for the architects of the deal, it is that net support for court approval outweighs opposition—overall, 41% of respondents supported approval of the settlement, while 23% opposed the deal. Just weeks before the September 4 deadline for opting out or objecting to the settlement, however, it is notable that more than a third (36%) remain unsure of or indifferent to the settlement. Publishers (52%) support the settlement in the greatest numbers, followed by authors (42%) and librarians (29%).

In "PW Survey: Librarians On the Fence Regarding Google Settlement," Norman Oder summarizes the findings of a survey of 225 librarians about the settlement.

Here's an excerpt:

Regarding court approval of the settlement, 37% said they were unsure, while 29% supported the settlement and 21.5% said they opposed it.

German Government to File Brief Opposing Google Book Search Settlement

In "Europe Divided on Google Book Deal," The New York Times reports that the German government intends to file a brief in the Google Book Search Copyright Class Action Settlement case opposing the settlement as "illegal."

"A Taxonomy of Articles in PubMed Central"

In "A Taxonomy of Articles in PubMed Central," Jim Till examines the open access characteristics of articles deposited in PubMed Central that were published between April 7, 2008 and August 7, 2008.

Here's an excerpt:

Summary: The total number of articles published in the 4-month interval (April 7 to August 7, 2008) and contributed to PMC was 23960. The four subtypes of articles in PMC, and their estimated proportions during this 4-month interval, are: 1) Author manuscripts that are publicly accessible (7346/23960=30.7%); 2) Articles that are embargoed (378/23960=1.6%); 3) Articles that are Libre OA (3635/23960=15.2%); 4) Other articles that are publicly accessible, via Gratis OA (12601/23960=52.5%). These proportions are probably not very different for the subset of NIH-supported articles, if it's assumed that, during this 4-month interval, about 50-60% of the articles contributed to PMC were NIH-supported.