Copyright – Page 38 – DigitalKoans

"Why Plaintiffs Should Have to Prove Irreparable Harm in Copyright Preliminary Injunction Cases"

Pamela Samuelson and Krzysztof Bebenek have self-archived "Why Plaintiffs Should Have to Prove Irreparable Harm in Copyright Preliminary Injunction Cases" in SSRN.

Here's an excerpt:

It has become lamentably common for courts to issue preliminary injunctions in copyright cases once rights holders have shown a reasonable likelihood of success on the merits without going on to require them to prove that they will suffer irreparable harm unless the injunction issues. Harm is too often presumed to be irreparable if plaintiffs have made out a prima facie case of infringement. This presumption cannot be squared with traditional principles of equity, as interpreted in numerous Supreme Court decisions, particularly eBay, Inc. v. MercExchange LLC, 547 U.S. 388 (2006).

While a presumption of irreparable harm is inappropriate in all copyright cases, it is particularly troublesome in cases involving transformative uses of existing works, such as parodies and remixes and mashups, because free expression and free speech interests of creative users are at stake and transformative uses cases often raise plausible non-infringement defenses. Indeed, if any presumption about harm is appropriate in transformative use cases, it should probably run in favor of irreparability of harm to the defendants' free expression and speech interests under First Amendment case law which treats preliminary injunctions as presumptively unconstitutional prior restraints on speech.

"Removing All Restrictions: Cornell's New Policy on Use of Public Domain Reproductions"

Peter Hirtle, Cornell University Library's Senior Policy Advisor, is interviewed in "Removing All Restrictions: Cornell's New Policy on Use of Public Domain Reproductions," which has been published in the latest issue of Research Library Issues.

Here's an excerpt:

Restrictions on the use of public domain work, sometimes labeled "copyfraud," are generating increasing criticism from the scholarly community. With significant collections of public domain materials in their collections, research libraries are faced with the question of what restrictions, if any, to place on those who seek to scan or otherwise reproduce these resources with the intention of publication.

Cornell University Library has responded by adopting new permissions guidelines that open access by no longer requiring users to seek permission to publish public domain items duplicated from its collections. Users planning to scan and publish public domain material are still expected to determine that works are in the public domain where they live (since public domain determinations can vary internationally). Users must also respect noncopyright rights, such as the rights of privacy, publicity, and trademark. The Library will continue to charge service fees associated with the reproduction of analog material or the provision of versions of files different than what is freely available on the Web. The new guidelines are found at http://cdl.library.cornell.edu/guidelines.html.

"A Defense of the Public Domain: A Scholarly Essay"

Laura N. Gasaway, Associate Dean for Academic Affairs and Professor of Law at the University of North Carolina School of Law, has self-archived "A Defense of the Public Domain: A Scholarly Essay" in SelectedWorks.

Here's the abstract:

Much has been written for librarians about copyright law. Despite the importance of the public domain, it has attracted much less scholarly attention than has copyright law generally, and yet a healthy and robust public domain is crucial to our society. It provides the building blocks for authors, composers, artists and movie makers who can borrow from public domain works without seeking permission of copyright owners. Unfortunately, the public domain is under attack from expanding the term of copyright, to making it more difficult for works to enter the public domain to the restoration of some foreign copyrights that had entered the public domain in the United States. Some librarians have asked whether vigorous application of fair use could not substitute for the shrinking public domain. It cannot. Fair use is a defense to copyright infringement and is very fact determinate. A court's finding of fair use applies only to the two parties to the litigation while the public domain is available to everyone from individual users of works, to artists and authors and to publishers and producers. It is crucial that the public domain be energetically defended. Today, it is not clear whether an author can even place his or her work in the public domain since copyright attaches automatically. A statutory method must be developed so that authors who wish to do so can easily place their works in the public domain.

Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums

The Cornell University Library has published Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums by Peter B. Hirtle, Emily Hudson, and Andrew T. Kenyon. A PDF copy of the book can be freely downloaded and the print version can be purchased from CreateSpace.

Here's an excerpt from the press release:

How can cultural heritage institutions legally use the Internet to improve public access to the rich collections they hold?

"Copyright and Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, and Museums," a new book by published today by Cornell University Library, can help professionals at these institutions answer that question.

Based on a well-received Australian manual written by Emily Hudson and Andrew T. Kenyon of the University of Melbourne, the book has been developed by Cornell University Library's senior policy advisor Peter B. Hirtle, along with Hudson and Kenyon, to conform to American law and practice.

The development of new digital technologies has led to fundamental changes in the ways that cultural institutions fulfill their public missions of access, preservation, research, and education. Many institutions are developing publicly accessible Web sites that allow users to visit online exhibitions, search collection databases, access images of collection items, and in some cases create their own digital content. Digitization, however, also raises the possibility of copyright infringement. It is imperative that staff in libraries, archives, and museums understand fundamental copyright principles and how institutional procedures can be affected by the law.

"Copyright and Cultural Institutions" was written to assist understanding and compliance with copyright law. It addresses the basics of copyright law and the exclusive rights of the copyright owner, the major exemptions used by cultural heritage institutions, and stresses the importance of "risk assessment" when conducting any digitization project. Case studies on digitizing oral histories and student work are also included.

Hirtle is the former director of the Cornell Institute for Digital Collections, and the book evolved from his recognition of the need for such a guide when he led museum and library digitization projects. After reading Hudson and Kenyon's Australian guidelines, he realized that an American edition would be invaluable to anyone contemplating a digital edition.

Anne R. Kenney, the Carl A. Kroch University Librarian at Cornell University, noted: "The Library has a long tradition of making available to other professionals the products of its research and expertise. I am delighted that this new volume can join the ranks with award-winning library publications on digitization and preservation."

As an experiment in open-access publishing, the Library has made the work available in two formats. Print copies of the work are available from CreateSpace, an Amazon subsidiary. In addition, the entire text is available as a free download through eCommons, Cornell University's institutional repository, and from SSRN.com, which already distributes the Australian guidelines.

Publisher Self-Archiving Policies: Major SHERPA RoMEO Upgrade

SHERPA has released a major upgrade of its RoMEO service, which lists publishers' self-archiving policies.

Here's an excerpt from the press release:

A major upgrade to RoMEO has been released today, giving:

Extra Category for the self-archiving of the Publisher's Version/ PDF

Expanded Journal Coverage

Extra Search Options for Journal Abbreviations and Electronic ISSNs

New Tabular Browse View for Publishers

Selective Display of Publishers' Compliance with Funding Agencys' Mandates . . . .

Previous versions of RoMEO have concentrated on highlighting information on the use of the pre-print and post-print. There has been great support from the community for also providing clearly labelled information on the use of the publisher's version/PDF as a separate item. This feature has now been included and sits alongside information on self-archiving rights for Pre-prints and Authors' Post-prints. The information is available in both individual publisher entries and in the new Tabular Browse View.

RoMEO now provides expanded journal coverage, enabling users to draw from both the Directory of Open Access Journals (DOAJ) and the Entrez journal list for the Life Sciences, along with the existing resource of the British Library's Zetoc service.

In addition to searching for journals by Print ISSN, users are now able to search by Electronic ISSN. They can also search for journals using title abbreviations.

The new Tabular Browse View enables users to display comparative charts of publishers, to quickly determine and compare what different Publishers allow them to deposit, and if the Publisher has a Paid OA Option.

If you or your authors receive funding from any of the 50 plus agencies listed in JULIET, you will now be able to restrict your search results to display Publishers' compliance with any of the funding agencies' policies listed in JULIET.

European Commission Adopts Communication on Copyright in the Knowledge Economy

The European Commission has adopted a Communication from the Commission: Copyright in the Knowledge Economy.

Here's an excerpt from the press release:

The European Commission today adopted a Communication on Copyright in the Knowledge Economy aiming to tackle the important cultural and legal challenges of mass-scale digitisation and dissemination of books, in particular of European library collections. The Communication was jointly drawn up by Commissioners Charlie McCreevy and Viviane Reding. Digital libraries such as Europeana ( http//www.europeana.eu ) will provide researchers and consumers across Europe with new ways to gain access to knowledge. For this, however, the EU will need to find a solution for orphan works, whose uncertain copyright status means they often cannot be digitised. Improving the distribution and availability of works for persons with disabilities, particularly the visually impaired, is another cornerstone of the Communication.

On adoption, Commissioners McCreevy and Reding stressed that the debate over the Google Books Settlement in the United States once again has shown that Europe could not afford to be left behind on the digital frontier.

"We must boost Europe as a centre of creativity and innovation. The vast heritage in Europe's libraries cannot be left to languish but must be made accessible to our citizens", Commissioner McCreevy, responsible for the Internal Market, stated.

Commissioner Reding, in charge of Information Society and Media, said: "Important digitisation efforts have already started all around the globe. Europe should seize this opportunity to take the lead, and to ensure that books digitisation takes place on the basis of European copyright law, and in full respect of Europe's cultural diversity. Europe, with its rich cultural heritage, has most to offer and most to win from books digitisation. If we act swiftly, pro-competitive European solutions on books digitisation may well be sooner operational than the solutions presently envisaged under the Google Books Settlement in the United States."

The Communication addresses the actions that the Commission intends to launch: digital preservation and dissemination of scholarly and cultural material and of orphan works, as well as access to knowledge for persons with disabilities. The challenges identified by the Commission today stem from last year’s public consultation on a Green Paper ( IP/08/1156 ), the Commission's High Level Group on Digital Libraries and the experiences gained with Europe's Digital Library Europeana ( IP/09/1257 ).

Digital Videos: Presentations from Access 2009 Conference

Presentations from the Access 2009 Conference are now available. Digital videos and presentation slides (if available) are synched.

Here's a quick selection:

Dan Chudnov, "Repository Development at the Library of Congress"
Cory Doctorow, "Copyright vs Universal Access to All Human Knowledge and Groups Without Cost: The State of Play in the Global Copyfight"
Mark Jordan & Brian Owen, "COPPUL's LOCKSS Private Network / Software Lifecycles & Sustainability: a PKP and reSearcher Update"
Dorthea Salo, "Representing and Managing the Data Deluge"
Roy Tennant, "Inspecting the Elephant: Characterizing the Hathi Trust Collection"

Google Books Settlement Status Conference Reports

Kenneth Crews and James Grimmelmann have posted blog reports about the Google Books Settlement status conference on October 7th. An amended agreement is anticipated to be filed by November 9th.

Here's an excerpt from the Grimmelmann's post:

Judge Chin is trying to move this case, and his overall attitude seemed to be that he wants as clean a record as possible, and soon, so that he can act on it. That would incline me to think that he is hoping to be able to approve the settlement, or at the least to kick some of the legal issues upstairs to the Second Circuit for its guidance.

Read more about it at "Amended Google Deal Targeted for November 9."

Vernor v. Autodesk: First Sale Doctrine Covers Licensed Software

U.S. District Court Judge Richard A. Jones has ruled that resale of licensed software from Autodesk is not a copyright violation.

Here's an excerpt:

The legislative history of § 109 and § 117 informs the court's decision in several respects. First, as the court noted, it suggests that "owner" not only had the same meaning when both sections were enacted, but that the meaning was that ascribed to the term in decisions like Wise. Congress did not amend the term "owner" when amending the statutes. Second, the legislative history reveals not only that Congress has modified § 117 and § 109 to specifically address computer software, but that when it does so, its modifications are not subtle. This makes it even more improbable that Congress ascribes two different meanings to "owner." Third, the legislative history shows that despite incentive and opportunity to modify the term "owner," Congress has not done so. . . .

Autodesk's claim that Mr. Vernor promotes piracy is unconvincing. Mr. Vernor's sales of AutoCAD packages promote piracy no more so than Autodesk's sales of the same packages. Piracy depends on the number of people willing to engage in piracy, and a pirate is presumably just as happy to unlawfully duplicate software purchased directly from Autodesk as he is to copy software purchased from a reseller like Mr. Vernor. The court notes, moreover, that even if CTA had never opened its AutoCAD packages, never installed the software on its computer, and thus never raised the possibility of piracy, Autodesk would still take the position that CTA's resale of those packages was a copyright violation.

The Google Books Settlement: Who Is Filing And What Are They Saying?

ACRL, ALA, and ARL have released The Google Books Settlement: Who Is Filing And What Are They Saying?.

Here's an excerpt:

The Association of Research Libraries, the American Library Association, and the Association of College and Research Libraries have prepared this document to summarize in a few pages of charts some key information about the hundreds of filings that have been submitted to the federal district court presiding over the Google Books litigation. The Google Books Settlement is the proposed settlement of a class action lawsuit brought against Google, Inc. by groups and individuals representing authors and publishers who objected to Google’s large-scale scanning of in-copyright books to facilitate its Book Search service. The Settlement would bind not only the groups who sued Google, but also most owners of copyrights in printed books ("class-members"), unless they choose to opt out of the Settlement. Class-members who opt out retain their right to sue Google over its scanning activities, but will not be part of the collective licensing scheme created by the Settlement. Under the Settlement, participating class-members will get a one-time payment in compensation for past scanning as well as a share of Google’s future revenues from its scanning activities. A new, non-profit entity called the Book Rights Registry will represent rightsholders under the Settlement going forward.

Kenneth Crews on the U.S. Department of Justice Google Book Search Settlement Filing

In "Justice and Google Books: First Thoughts about the Government's Brief," Kenneth Crews, Director of the Copyright Advisory Office at Columbia University, discusses the U.S. Department of Justice Antitrust Division's filing on the Google Book Search Settlement.

Here's an excerpt:

The filing is remarkable for its lucid dissection of select issues. It is diplomatic, and it holds out repeated hope for the continued talks among the parties to the case. But clearly the DOJ does not like what it sees.

Google Book Settlement Fairness Hearing Postponed

U.S. District Judge Denny Chin has postponed the October 7th fairness hearing for the Google Book Search Settlement; however, a status conference will occur on that date.

Here's the ruling.

"Copyright as Information Policy: Google Book Search from a Law and Economics Perspective"

Douglas Lichtman, Professor of Law at the UCLA School of Law, has self-archived "Copyright as Information Policy: Google Book Search from a Law and Economics Perspective" in SSRN.

Here's an excerpt:

The copyright system has long been understood to play a critical role when it comes to the development and distribution of creative work. Copyright serves a second fundamental purpose, however: it encourages the development and distribution of related technologies like hardware that might be used to duplicate creative work and software that can manipulate it. When it comes to issues of online infringement, then, copyright policy serves two goals, not one: protect the incentives copyright has long served to provide authors, and at the same time facilitate the continued emergence of innovative Internet services and equipment. In this Chapter, I use the Google Book Search litigation as a lens through which to study copyright law’s efforts to serve these two sometimes-competing masters. The Google case is an ideal lens for this purpose because both the technology implications and the authorship implications are apparent. With respect to the technology, Google tells us that the only way for it to build its Book Search engine is to have copyright law excuse the infringement that is today by design part of the project. With respect to authorship, copyright owners are resisting that result for fear that the infringement here could significantly erode both author control and author profitability over the long run. I myself am optimistic that copyright law can and will balance these valid concerns. The Chapter explains how, discussing not only the formal legal rules but also the economic intuitions behind them.

Pamela Samuelson: "DOJ Says No to Google Book Settlement"

In "DOJ Says No to Google Book Settlement," noted copyright expert Pamela Samuelson examines the U.S. Department of Justice's Google Book Search Settlement filing.

Here's an excerpt:

Among the most significant recommendations DOJ made for modifying the Proposed Settlement is one to ameliorate the risk of market foreclosure as to institutional subscriptions. DOJ suggests the parties should find a way to "provide some mechanism by which Google's competitors could gain comparable access to orphan works." That is, DOJ is recommending that Google, the Authors Guild and the publishers find a way to let firms such as Amazon.com and Microsoft get comparable licenses to out-of-print books, particularly to orphans. Google has previously denied that it was possible to include competitors in any license granted through the settlement. It will be interesting to see if the litigants want the settlement badly enough to conjure up a way to extend the license to firms other than Google.

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)