Category: Copyright

Look Out LexisNexis: Malamud Wants Free Access to Court Decisions

In a move that could change the $5 billion legal publishing marketplace, Carl Malamud, who established public.resource.org earlier this year, plans on making more than ten million court decisions freely available on the Internet.

Here's an excerpt from "A Quest to Get More Court Rulings Online, and Free":

Mr. Malamud has a significant track record in battling publishers over public information. In 1994 he began a crusade that ultimately persuaded the federal government to make records from the Securities and Exchange Commission and the Patent and Trademark Office available online to the public at no cost.

He said the free availability of that digital information did not undercut the businesses that were making money from the information at the time. . . .

The Public Resource effort is one of several attempts to make the nation's laws more accessible. One project, AltLaw (altlaw.org) is a joint effort by Columbia Law School’s Program on Law and Technology and the Silicon Flatirons program at the University of Colorado Law School to permit free full-text searches of the last decade of federal appellate and Supreme Court opinions.

Source: Markoff, John. "A Quest to Get More Court Rulings Online, and Free." The New York Times, 20 August 2007, B6.

SPARC Canadian Author Addendum

The Canadian Association of Research Libraries (CARL) and SPARC (the Scholarly Publishing and Academic Resources Coalition) have released the SPARC Canadian Author Addendum.

Here's an excerpt from the press release:

Traditional publishing agreements often require that authors grant exclusive rights to the publisher. The new SPARC Canadian Author Addendum enables authors to secure a more balanced agreement by retaining select rights, such as the rights to reproduce, reuse, and publicly present the articles they publish for non-commercial purposes. It will help Canadian researchers to comply with granting council public access policies, such as the Canadian Institutes of Health Research Policy on Access to Research Outputs. The Canadian Addendum reflects Canadian copyright law and is an adaptation of the original U.S. version of the SPARC Author Addendum. . . .

An explanatory brochure complements the Addendum. Both the brochure and addendum are available in French and English on the CARL and SPARC Web sites and will be widely distributed. SPARC, in conjunction with ARL and ACRL, has also introduced a free Web cast on Understanding Author Rights. See http://www.arl.org/sparc/author for details.

Welcome to the DRM Zone: Case in Point, the Google Video Store

If you have ever purchased or rented a video from the Google Video Store, it will cease to function on August 15, 2007. That's because the Google Video Store is being shut down and along with it Google 's associated DRM system.

Customers will get credits in Google Checkout for what they spent on Google Video Store products, but not cash refunds, meaning that they must buy merchandise available via that service to recoup their losses. Of course, this does not compensate purchasers for the inconvenience of having to replace their videos (assuming that they can).

This fiasco underlines a key problem with DRM: it doesn't just restrict access, it restricts access using proprietary technologies, and, with few exceptions, those technologies cannot be legally circumvented under U.S. law.

Source: Fisher, Ken. "Google Selleth Then Taketh Away, Proving the Need for DRM Circumvention." Ars Technica, 12 August 2007.

UNIX Ruling: An Open Source Victory

In a blow to the SCO Group, Dale A. Kimball, a judge in the U.S. District Court for the District of Utah Central District, has ruled that Novell owns the disputed copyright to the UNIX operating system. The judge also ruled that SCO must drop its suits against IBM Corp and Sequant as well as pay Novell part of its licensing fees from Sun and Microsoft.

Here's an excerpt from "Novell Wins Right to Unix, Dismissing SCO":

The ruling is good news for organizations that use open-source software products, said Jim Zemlin, executive director of the Linux Foundation. "From the perspective of someone who is adopting open-source solutions to run in the enterprise, it proves to them that the industry is going to defend the platform, and that when organizations attack it from a legal perspective, that the industry collectively will defend it," he said.

Here's an excerpt from "Judge Says Unix Copyrights Belong to Novell":

The court's ruling has cut out the core of SCO's case and, as a result, eliminates SCO's threat to the Linux community based upon allegations of copyright infringement of Unix," said Joe LaSala, Novell's senior vice president and general counsel.

Sources: Gohring, Nancy. "Novell Wins Right to Unix, Dismissing SCO." InfoWorld, 10 August 2007; Markoff, John. "Judge Says Unix Copyrights Belong to Novell." The New York Times, 11 August 2007.

An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005

Barton Beebe, Associate Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University, has released "An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005."

Here's an excerpt from the e-print's abstract:

This Article presents the results of the first empirical study of our fair use case law to show that much of our conventional wisdom about that case law is wrong. Working from a data set consisting of all reported federal opinions that made substantial use of the Section 107 four-factor test for fair use through 2005, the Article shows which factors and subfactors actually drive the outcome of the fair use test in practice, how the fair use factors interact, how courts inflect certain individual factors, and the extent to which judges stampede the factor outcomes to conform to the overall test outcome. It also presents empirical evidence of the extent to which lower courts either deliberately ignored or were ignorant of the doctrine of the leading cases, particularly those from the Supreme Court.

Source: Beebe, Barton. "An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005." SSRN (2007).

Legal Aspects of Data Access and Reuse in Collaborative Research

The Open Access to Knowledge Law Project and the Legal Framework for e-Research Project have released Building the Infrastructure for Data Access and Reuse in Collaborative Research: An Analysis of the Legal Context.

Here's an excerpt from the "Executive Summary":

This Report examines the broad legal framework within which research data is generated, managed, disseminated and used. The background to the Report is the growing support for systems that enable research data generated in publicly-funded research projects to be made available for access and use by others in the research community.

The Report provides an overview of the operation of copyright law, contract and confidentiality laws, as well as a range of legislation—privacy, public records and freedom of information legislation, etc—that is of relevance to research data. The Report considers how these legal rules apply to define rights in research data and regulate the generation, management and sharing of data. In any given research project there will be a multitude of different parties with varying interests. . . The Report examines the relationships between these parties and the legal arrangements that must be implemented to ensure that research data is properly and effectively managed, so that it can be accessed and used by other researchers.

Important in the context of collaborative research and open access, the Report describes and explains current practices and attitudes towards data sharing. . . . Often these practices are informed by international and national policies on access and use, formulated by international organisations and conferences, research funders and research bodies. The Report considers these policies at length and canvasses the development of the open access to research data movement.

Finally, the Report encourages researchers and research organisations to adopt proper management and legal frameworks for research data outputs. . . . The Report describes best practice strategies and mechanisms for organising, preserving and enabling access to and reuse of research data, including data management policies and principles, data management plans and data management toolkits. Proposals are made for further work to be undertaken on data access policies, frameworks, strategies and mechanisms.

Litman on Lawful Personal Use

Jessica Litman, Professor at the University of Michigan Law School and author of Digital Copyright: Protecting Intellectual Property on the Internet, has written a paper that examines copyright from the point of user rights.

Here's an excerpt from the e-print:

This Article seeks to refocus the discussion of users’ and consumers’ rights under copyright, by placing people who make personal use of copyright works at the center of the copyright system. . . .

Limiting myself to personal use, moreover, allows me to evade, for now, many of the interesting questions that arise when readers, listeners, users, and experiencers morph into publishers and distributors. Finally, personal use is a realm where even the most rapacious copyright owners have always agreed that some uses are lawful even though they are neither exempted or privileged in the copyright statute nor recognized as legal by any judicial decision.

In Part II of this Article, I urge that reading, listening, viewing, watching, playing, and using copyrighted works is at the core of the copyright system. . . . In Part III, I revisit copyright cases that have attracted criticism for their stingy construction of copyright owners’ property rights, and suggest that the courts’ narrow reading of copyright rights was motivated, at least in part, by their solicitude for the interests of readers and listeners. . . . In Part IV, I articulate a definition of personal use. Armed with that definition, in Part V, I look at a range of personal uses that are uncontroversially noninfringing under current law. . . . I proceed in Parts VI and VII to offer an alternative analysis of the scope of copyright owners’ rights and the lawfulness of personal uses that might invade them. Finally, in Part VIII, I return to the conventional paradigm of copyright statutory interpretation, under which all unlicensed uses are infringing unless excused.

Source: Litman, Jessica. "Lawful Personal Use." (2007).

Publisher Author Agreements

According to today's SHERPA/RoMEO statistics, 36% of the 308 included publishers are green ("can archive pre-print and post-print"), 24% are blue ("can archive post-print (i.e. final draft post-refereeing)"), 11% are yellow ("can archive pre-print (i.e. pre-refereeing)"), and 28% are white ("archiving not formally supported"). Looked at another way, 72% of the publishers permit some form of self-archiving.

These are certainly encouraging statistics, and publishers who permit any form of self-archiving should be applauded; however, leaving aside Creative Commons licenses and author agreements that have been crafted by SPARC and others to promote rights retention, publishers recently liberalized author agreements still raise issues that librarians and scholars should be aware of.

Looking deeper, there are publisher variations in terms of where e-prints can be self-archived. Typically, this might be some combination of the author's Website, institutional repository or Website, funding agency's server, or disciplinary archive. Some agreements allow deposit on any noncommercial or open access server. Restricting deposit to open access or noncommercial servers is perfectly legitimate in my view; more specific restrictions are, well, too restrictive. The problem arises when the agreement limits the author's deposit options to ones he or she doesn't have, such as only allowing deposit in an institutional repository when the author's institution doesn't have one or only allowing posting on an author's Website when the author doesn't have one.

Another issue is publisher requirements for authors to remove e-prints on publication, to modify e-prints after publication to reflect citation and publisher contact information, to replace e-prints with published versions, or to create their own versions of postprints. Low deposit rates in institutional repositories without institutional mandates suggest that anything that involves extra effort by authors is a deterrent to deposit. The above kinds of publisher requirements are likely to have equally low rates on compliance, resulting in deposited e-prints that do not conform to author agreements. To be effective, such requirements would have to be policed by publishers or digital repositories. Otherwise, they are meaningless and are best deleted from author agreements.

A final issue is retrospective deposit. We can think of the journal literature as an inverted pyramid, with the broad top being currently published articles and the bottom being the first published journal articles. The papers published since the emergence of author agreements that permit self-archiving are a significant resource; however, much of the literature precedes such agreements. The vast majority of these articles are under standard copyright transfer agreements, with publishers holding all rights. Consequently, it is very important that publishers clarify whether their relatively new self-archiving policies can be applied retroactively. Elsevier has done so:

When Elsevier changes its policies to enable greater academic use of journal materials (such as the changes several years ago in our web-posting policies) or to clarify the rights retained by journal authors, Elsevier is prepared to extend those rights retroactively with respect to articles published in journal issues produced prior to the policy change.

Elsevier is pleased to confirm that, unless explicitly noted to the contrary, all policies apply retrospectively to previously published journal content. If, after reviewing the material noted above, you have any questions about such rights, please contact Global Rights.

Unfortunately, many publishers have not clarified this issue. Under these conditions, whether authors can deposit preprints or author-created postprints hinges on whether these works are viewed as being different works from the publisher version, and, hence, owned by the authors. Although some open access advocates believe this to be the case, to my knowledge this has never been decided in a court of law. Michael Carroll, who is a professor at the Villanova University School of Law and a member of the Board of the Creative Commons, has said in an analysis of whether authors can put preprints of articles published using standard author agreements under Creative Commons licenses:

Although technically distinct, the copyrights in the pre-print and the post-print overlap. The important point to understand is that copyright grants the owner the right to control exact duplicates and versions that are "substantially similar" to the copyrighted work. (This is under U.S. law, but most other jurisdictions similarly define the scope of copyright).

A pre-print will normally be substantially similar to the post-print. Therefore, when an author transfers the exclusive rights in the work to a publisher, the author precludes herself from making copies or distributing copies of any substantially similar versions of the work as well.

Much progress has been made in the area of author agreements, but authors must still pay careful attention to the details of agreements, which vary considerably by publisher. The SHERPA/RoMEO—Publisher Copyright Policies & Self-Archiving database is a very useful and important tool and users should actively participate in refining this database; however, authors are well advised not to stop at the summary information presented here and to go to the agreement itself (if available). It would be very helpful if a set of standard author agreements that covered the major variations could be developed and put into use by the publishing industry.

Pamela Samuelson on Copyright Reform

Pamela Samuelson, Professor at the School of Information and the School of Law, University of California at Berkeley, has written an interesting paper about copyright reform. While not very hopeful about immediate action, she outlines a number of reasons why such an effort is still worthwhile, blocks out the main areas of concern, and offers suggestions about possible reforms.

Here's an extract from the paper:

The 1976 Act has been amended more than twenty times since 1976. As a result of these many amendments to its text, the 1976 Act has become an amalgam of inter- and intra-industry negotiated compromises. As a consequence, it has become a hodgepodge law. Although Congress has occasionally given the Copyright Office rule-making authority, most of the controversial issues have been left for the Congress or the courts to resolve. This has given rise to serious public choice problems with the copyright law and policy making process. The copyright industries have become accustomed to drafting legislation that suits their perceived needs and to having that legislation adopted without careful scrutiny.

The ’76 Act is, moreover, the intellectual work product of a copyright reform process that was initiated in the late 1950’s. This legislation was written without giving serious thought to how it would apply to computers, computer programs, or computer networks. . . .

The ’76 Act was also drafted in an era when it mainly regulated the copyright industries and left alone the acts of ordinary people and non-copyright industries who might interact with copyrighted works. The copyright industries had negotiated many of the fine details of the statute and knew what they meant, even if no one else did. Advances in digital technologies have, among other things, democratized the creation and dissemination of new works of authorship and brought ordinary persons into the copyright realm not only as creators but also as users of others’ works. . . .

Thirty years after enactment of the ’76 Act, with the benefit of considerable experience with computer and other advanced technologies and the rise of amateur creators, it may finally be possible to think through in a more comprehensive way how to adapt copyright to digital networked environments as well as how to maintain its integrity as to existing industry products and services that do not exist outside of the digital realm. If one considers, as I do, that the 1976 Act was the product of 1950/1960’s thinking, then a copyright reform process should be well underway, for copyright revision projects have occurred roughly every 40 years in the U.S.25 A copyright reform project would, moreover, take years of careful thought, analysis, and drafting, and would then face the daunting challenge of persuading legislators to enact it. Viewed in this light, time’s awasting, and someone should get on with it.

Source: Samuelson, Pamela. "Preliminary Thoughts on Copyright Reform." SSRN. (2007).

Intellectual Property Enhanced Criminal Enforcement Act of 2007

As discussed previously in DigitalKoans, the Justice Department has been pushing for tougher copyright legislation. Now Rep. Steve Chabot, a Republican from Ohio, has introduced the Intellectual Property Enhanced Criminal Enforcement Act of 2007 in the House, which includes key concepts from earlier work in this area such as criminalizing certain kinds of attempted infringement.

Here's an excerpt from "New Bill Backs Prison Time for Piracy 'Attempts'":

Notably, under Chabot's bill. . . it would be a crime not only to commit copyright infringement but also to "attempt" to do so. Such an offense would carry the same penalties as actually committing infringement—as would engaging in a "conspiracy" with two or more people to carry it out.

The bill would also double the prison sentences currently prescribed for copyright infringement violations, bringing them up to a range of 6 to 20 years. . . .

The bill also grafts additional penalties onto the thorny Digital Millennium Copyright Act, which dictates it's unlawful to sidestep copyright protection technologies except in certain circumstances. Right now, violating those rules can land you up to 10 years behind bars and as much as $1 million in fines, but Chabot's bill would also require the criminal to forfeit any property used in any manner to commit the offense—or anything garnered directly or indirectly from the proceeds of the activity. (The same forfeiture obligations would also apply to a wide array of other copyright-related offenses.)

Source: Broache, Anne. "New Bill Backs Prison Time for Piracy 'Attempts'" CNET News.Com, 30 July 2007.

EFF Sues Universal Music to Protect Fair Use Rights in 29-Second Video

The Electronic Frontier Foundation (EFF) has sued the Universal Music Publishing Group in order to protect the fair use and free speech rights of Stephanie Lenz, who uploaded to YouTube a 29-second recording of her infant son boogying to Prince's "Let's Go Crazy." YouTube took the video down after a complaint by Universal Music, then reposted it.

Here's an excerpt from "Mom Sues Universal Music for DMCA Abuse":

"Universal's takedown notice doesn't even pass the laugh test," said EFF Staff Attorney Corynne McSherry. "Copyright holders should be held accountable when they undermine non-infringing, fair uses like this video."

The lawsuit asks for a declaratory judgment that Lenz's home video does not infringe any Universal copyright, as well as damages and injunctive relief restraining Universal from bringing further copyright claims in connection with the video.

This lawsuit is part of EFF's ongoing work to protect online free speech in the face of bogus copyright claims. EFF is currently working with Stanford's Fair Use Project to develop a set of "best practices" for proper takedowns under the Digital Millennium Copyright Act.

Reid Substitutes New P2P Higher Education Reauthorization Act Amendment

CNET News.Com reports that Senator Harry Reid has withdrawn his original Amendment to the Higher Education Reauthorization Act, which met with opposition from EDUCAUSE and others, that would, among other provisions, have forced higher education institutions to prove to the Department of Education that they had "developed a plan for implementing a technology-based deterrent to prevent the illegal downloading or peer-to-peer distribution of intellectual property."

Instead, Reid successfully added an amendment that requires higher education institutions to inform students "that unauthorized distribution of copyrighted material on the institution’s information technology systems, including engaging in unauthorized peer-to-peer file sharing, may subject the students to civil and criminal penalties."

Ars Technica and EFF Deep Links have additional coverage of this development.

EDUCAUSE Urgent Call to Action about Higher Education Reauthorization Act Amendment

EDUCAUSE has issued a call to action about a Higher Education Reauthorization Act amendment:

Here’s an excerpt from the call:

I am writing to ask your help in a matter of urgency to higher education in general and the IT community in particular: U.S. Senate Majority Leader Harry Reid (D-NV) intends to offer a very harmful amendment, involving illegal file sharing, to the Higher Education Reauthorization Act when the Senate turns to this issue on July 22-23. The amendment can be found at <http://tinyurl.com/2x45d2>. The amendment:

*  Makes the Secretary of Education an agent of the entertainment industry;

*  Requires the Secretary to take action using data given to her by the entertainment industry that is terribly inaccurate;

*  Requires targeted colleges and universities to plan for implementing a "technical solution" to illegal file sharing that does not yet exist for many campus environments; 

*  Is aimed only at colleges and universities, and NOT other Internet service providers;  . . . .

It is important that your institution (CEO, government relations official, and yourself) CALL today, not write, your state’s U.S. senators’ staff members for higher education issues and tell them how much higher education opposes this amendment. Please also call Senator Reid’s office (202-224-3542), Senator Edward Kennedy’s office (202-224-4543), and Senator Michael Enzi’s office (202-224-3424). Thank you for your help.

University of Kansas Prohibits Downloading of Copyrighted Material

In a move that should greatly reduce Internet use and library expenditures for licensed electronic resources, the University of Kansas has prohibited campus network users from downloading copyrighted material:

Violation of the Digital Millennium Copyright Act is against the law. If you are caught downloading copyrighted material, you will lose your ResNet privileges forever. No second notices, no excuses, no refunds. One violation and your ResNet internet access is gone for as long as you reside on campus.

Most likely Kansas means "If you are caught illegally downloading copyrighted material . . .," but, unfortunately, as worded, the only files that can be downloaded without penalty are those in the public domain.

Source: Bangeman, Eric. "University of Kansas Adopts One-Strike Policy for Copyright Infringement." Ars Technica, 20 July 2007.

Publishers May Challenge NIH Mandate

According to a Library Journal Academic Newswire article, publishers may challenge the provisions of the NIH Public Access Policy mandate if it is made law. The issue arises from the wording of the House bill:

Sec. 217: The Director of the National Institutes of Health shall require that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine’s PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication to be made publicly available no later than 12 months after the official date of publication: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law.

Regarding this wording, the Library Journal Academic Newswire article says:

While seemingly innocuous, that language almost certainly will form the basis for a challenge to the policy's implementation. In a letter to lawmakers, the Association of American Publishers (AAP) argued that "a mandate may not be consistent with copyright law," a position emphasized by Brian Crawford, chair of the AAP's Professional and Scholarly Publishing Division Executive Committee. "The copyright proviso in the Labor/HHS Appropriations language does not in itself provide sufficient assurance of copyright protection," Crawford told the LJ Academic Newswire. "The mandatory deposit of copyrighted articles in an online government site for worldwide distribution is in fundamental, inherent, and unavoidable conflict with the rights of copyright holders in those works."

ALA Weblogs and Creative Commons Licenses

The American Library Association and its divisions have launched a number of Weblogs in the last few years. What copyright provisions are these digital publications under? Do they use Creative Commons licenses?

As the list below shows, the vast majority of ALA Weblogs have no explicit copyright statement on their homepage. The absence of such a statement does not mean that under U.S. law the Weblogs are not under standard copyright provisions. They are copyrighted, but by who? Unless ALA has a copyright transfer or work-for-hire agreement with Weblog authors, it appears that the author of each posting holds the copyright to that posting, and copyright permissions for uses of postings that exceed fair use would need to be obtained from their authors. (Some Weblogs have a single author.)

One ALA Weblog uses the standard ALA copyright statement (ALA Techsource), one is copyrighted under the name of the Weblog (ACRLog), one is under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 United States license (YALSA), and three others are under Creative Commons Attribution-NonCommercial-NoDerivs 2.5 licenses (District Dispatch, LITA Blog, and Office for Intellectual Freedom).

Thus, the vast majority of ALA Weblogs are under standard copyright provisions, one is under ALA’s more liberal copyright provisions, and a few are under Creative Commons Licenses that permit noncommercial use without further permission as long as it does not include the creation of derivative works.

Australian Framework and Action Plan for Digital Heritage Collections

The Collections Council of Australia Ltd. has released Australian Framework and Action Plan for Digital Heritage Collections, Version 0.C3 for comment.

Here's an excerpt from the document:

This is the Collections Council of Australia's plan to prepare an Australian framework for digital heritage collections. It brings together information shared by people working in archives, galleries, libraries and museums at a Summit on Digital Collections held in 2006. It proposes an Action Plan to address issues shared by the Australian collections sector in relation to current and future management of digital heritage collections.

How Many Creative Commons Licenses Are in Use?

In his "Creative Commons Statistics from the CC-Monitor Project" iCommons Summit presentation, Giorgos Cheliotis of the School of Information Systems at Singapore Management University estimates that there must be more than 60,000,000 Creative Commons licenses in use.

Based on backlink search data from Google and Yahoo, he also provides the following license breakdown highlights:

  • 70% of the licenses allow non-commercial use only (NC)
  • Share-Alike (SA) also a very popular attribute, present in over 50% fCC-licensed items (though SA is anyhow self-propagating)
  • 25% of the licenses include the ND [no derivative] restriction

WIPO Broadcasting Treaty on Hold

The World Intellectual Property Organization (WIPO) has decided to indefinitely postpone a November 2007 Diplomatic Conference at which the WIPO Broadcasting Treaty could have been approved.

Here’s an excerpt from the EFF’s "Blogging WIPO: Broadcasting Treaty Deferred Indefinitely" posting:

Negotiations on the proposed WIPO Broadcasting Treaty ended on Friday with some welcome news. WIPO Member States agreed to postpone the high-level intergovernmental Diplomatic Conference at which the draft treaty could have been adopted, and have moved discussions back to regular committee meetings, down a notch from the last two "Special Session" meetings. . . .

Before a Diplomatic Conference can be convened, Member States must reach agreement on the core elements of a treaty—the objectives, specific scope and object of protection. While this week’s informal session discussions may have helped clarify Member States’ positions, it does not seem to have brought them closer. There is widespread agreement amongst many Member States, public interest NGOs. libraries and the tech industry that any treaty must focus on the issue of signal theft and not the creation of exclusive rights that will harm those communities. However, it’s equally clear from this week that broadcasters will not settle for anything other than exclusive rights.

Why is this important? Here’s an excerpt from Cory Doctorow’s Boing Boing posting on the subject ("Broadcast Treaty Wounded and Dying!"):

The broadcast treaty creates a copyright-like "broadcast right," for the entities that make works available. So while copyright goes to the people who create things, broadcast rights go to people who have no creative contribution at all. Here’s how it would work: say you recorded some TV to use in your classroom. Copyright lets you do this—copyright is limited by fair use. But the broadcast right would stop you—you’d need to navigate a different and disjointed set of exceptions to broadcast rights, or the broadcaster could sue you.

That’s just for openers. The broadcast right also covers works in the public domain that no one has a copyright in—and even Creative Commons works where the creator has already given her permission for sharing! You can’t use anything that’s broadcast unless you get permission from the caster. What’s more, they’re trying to extend this to the net, making podcasting and other communications where the hoster isn’t the copyright holder (that is, where you create the podcast but someone else hosts it) into a legal minefield.

ARL’s Library Brown-Bag Lunch Series: Issues in Scholarly Communication

The Association of Research Libraries (ARL) has released a series of discussion guides for academic librarians to use with faculty. The guides are under a Creative Commons Attribution-ShareAlike 3.0 United States license.

Here’s an excerpt from the guides’ web page:

This series of Discussion Leader’s Guides can serve as a starting point for a single discussion or for a series of conversations. Each guide offers prework and discussion questions along with resources that provide further background for the discussion leader of an hour-long session.

Using the discussion guides, library leaders can launch a program quickly without requiring special expertise on the topics. A brown-bag series could be initiated by a library director, a group of staff, or by any staff person with an interest in the scholarly communication system. The only requirements are the willingness to organize the gatherings and facilitate each meeting’s discussion.

CIC’s Digitization Contract with Google

Library Journal Academic Newswire has published a must-read article ("Questions Emerge as Terms of the CIC/Google Deal Become Public") about the Committee on Institutional Cooperation’s Google Book Search Library Project contract.

The article includes quotes from Peter Brantley, Digital Library Federation Executive Director, from his "Monetizing Libraries" posting about the contract (another must-read piece).

Here’s an excerpt from Brantley’s posting:

In other words—pretty much, unless Google ceases business operations, or there is a legal ruling or agreement with publishers that expressly permits these institutions (excepting Michigan and Wisconsin which have contracts of precedence) to receive digitized copies of In-Copyright material, it will be held in escrow until such time as it becomes public domain.

That could be a long wait. . . .

In an article early this year in The New Yorker, "Google’s Moon Shot," Jeffrey Toobin discusses possible outcomes of the antagonism this project has generated between Google and publishers. Paramount among them, in his mind, is a settlement. . . .

A settlement between Google and publishers would create a barrier to entry in part because the current litigation would not be resolved through court decision; any new entrant would be faced with the unresolved legal issues and required to re-enter the settlement process on their own terms. That, beyond the costs of mass digitization itself, is likely to deter almost any other actor in the market.

MIDESS (Management of Images in a Distributed Environment with Shared Services) Project

The JISC-funded MIDESS Project is examining issues related to the management of digital audio, images, video, and other digital content in distributed digital repositories as well as at the national level. It is being conducted by the London School of Economics, University College London, the University of Birmingham, and the University of Leeds.

Here is an excerpt from the "Aims and Objectives of the MIDESS Project" page:

  • The MIDESS project will be building digital content databases at three of the partner institutions . . .
  • These databases will be populated with digital content which has already been created, or is currently under creation, by the partner institutions. . . .
  • Opportunities for the sharing and re-use of digital collections across institutions will be explored . . .
  • Metadata standards will be established, and metadata developed, for each collection added to the repositories. . . .
  • MIDESS will explore the role of digital content databases with a particular focus on interoperability with enterprise content management architectures.
  • MIDESS will also aim to establish how distributed digital repositories could encourage the wider exposure and sharing of content across institutions through an evaluation of requirements for centralised metadata harvesting services.
  • MIDESS will seek to pilot an infrastructure which could serve as a model for future distributed national digitisation activities.

The project has produced a number of interesting documents, especially the detailed workpackages, which deal with issues such as digital preservation, enterprise storage, intellectual property, and user requirements.

Finnish Court Says DRM Has to be Truly Effective to Warrant Legal Protection

Although it is a lower-level court, a recent ruling by the Helsinki District Court has raised questions about whether DRM systems that can be cracked by easily available software warrant protection under Finnish and European Union copyright laws.

Here’s a excerpt from Mikko Välimäki’s analysis, "Keep on Hacking: A Finnish Court Says Technological Measures Are No Longer ‘Effective’ When Circumventing Applications Are Widely Available on the Internet":

In an unanimous decision given May 25, 2007, Helsinki District Court ruled that Content Scrambling System (CSS) used in DVD movies is "ineffective." The decision is probably the first in Europe to interpret new copyright law amendments that ban the circumvention of "effective technological measures." The legislation is based on EU Copyright Directive from 2001. According to both the Finnish copyright law and the underlying directive, only such protection measure is effective, "which achieves the protection objective." . . .

The background of the Finnish CSS case was that after the national copyright law amendment was accepted in late 2005, a group of Finnish computer hobbyists and activists opened a website where they posted information on how to circumvent CSS. They appeared in a police station and claimed to have potentially infringed copyright law. Most of the activists thought that either the police does not investigate the case in the first place or the prosecutor drops it if it goes any further.

To the surprise of many, the case ended in the Helsinki District Court. Defendants were Mikko Rauhala who opened the website, and a poster who published an own implementation of source code circumventing CSS. They were prosecuted for illegally manufacturing and distributing a circumventing product and providing a service to circumvent an effective technological measure. . . .

The decisive part of the process was the hearing of two technical expert witnesses. One was invited by the prosecutor and another was invited by the defense. Asked about the effectivity of CSS, they both held it ineffective from the perspectives of technical experts as well as average consumers. The court relied on the testimonies of the witnesses and concluded: ". . . since a Norwegian hacker succeeded in circumventing CSS protection used in DVDs in 1999, end-users have been able to get with easy tens of similar circumventing software from the Internet even free of charge. Some operating systems come with this kind of software pre-installed. . . . CSS protection can no longer be held ‘effective’ as defined in law. . . ."

Proposed Legislation Would Make Attempted Copyright Infringement a Crime

The Justice Department has proposed the Intellectual Property Protection Act of 2007, which, among other things, would make it a criminal offense to attempt to infringe copyright .

Here’s the key section that deals with this issue:

SECTION 4. CRIMINAL INFRINGEMENT
(a) IN GENERAL—Section 506(a)(l) of title 17, United States Code, is amended
(1) by inserting "or attempts to infnnge" before "a copyright" and
(2) by striking the comma and "if the infringement was committed" after "18";
(3) by striking subparagraph (A) and inserting "(A) if the infringement was committed or attempted for purposes of commercial advantage or private financial gain";
(4) in subparagraph (B), by striking "by the reproduction or distribution" and inserting "if the infringement was committed or attempted by the reproduction or distribution"; and
(6) by inserting at the beginning of subparagraph (C) "if the infringement was committed".

In "Proposed Crime of the Century: Attempted Copyright Infringement," Mathew Honan of Wired sums up the proposal this way:

Essentially, the bill would turn copyright law into something more akin to existing drug laws: The government could seize personal property, wiretaps would become legal for the first time, violators could face life in prison and, in an ambiguous and far-reaching provision, the mere attempt to violate a copyright would become a crime.