Category: Copyright

Cato Institute Report Denounces DMCA

The Cato Institute has released a report (Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act) that is sharply critical of the Digital Millennium Copyright Act (DMCA).

The following quote is from the executive summary:

The result has been a legal regime that reduces options and competition in how consumers enjoy media and entertainment. Today, the copyright industry is exerting increasing control over playback devices, cable media offerings, and even Internet streaming. Some firms have used the DMCA to thwart competition by preventing research and reverse engineering. Others have brought the weight of criminal sanctions to bear against critics, competitors, and researchers.

The DMCA is anti-competitive. It gives copyright holders—and the technology companies that distribute their content—the legal power to create closed technology platforms and exclude competitors from interoperating with them. Worst of all, DRM technologies are clumsy and ineffective; they inconvenience legitimate users but do little to stop pirates.

And this quote is from the conclusion (links are mine):

When the next breakthrough media device is invented, its inventor should not face a legal system in which the deck is stacked against him, as Streambox and DeCSS did. He should be free to focus on hiring the best programmers, designers, and marketers, rather than on shopping for a good law firm. If industry incumbents attempt to prevent his product from working with theirs, he should be allowed to circumvent the restrictions as Accolade did in the Sega case. And if the device has a "substantial non-infringing use" and is developed and marketed for such use, Congress and the courts should uphold its legality, even if it threatens the business model of an established industry.

Gary Flake’s "Internet Singularity"

Dr. Gary William Flake, Microsoft technical fellow, gave a compelling and lively presentation at SearchChamps V4 entitled "How I Learned to Stop Worrying and Love the Imminent Internet Singularity."

Flake’s "Internet Singularity," is "the idea that a deeper and tighter coupling between the online and offline worlds will accelerate science, business, society, and self-actualization."

His PowerPoint presentation is text heavy enough that you should be able to follow his argument fairly well. (Ironically, he had apparently received some friendly criticism from colleagues about the very wordiness of the PowerPoint that allows it to stand alone.)

I’m not going to try to recap his presentation here. Rather, I urge you to read it, and I’ll discuss a missing factor from his model that may, to some extent, act as a brake on the type of synergistic technical progress that he envisions.

That factor is the equally accelerating growth of what Lawrence Lessig calls the "permission culture," which is "a culture in which creators get to create only with the permission of the powerful, or of creators from the past."

Lessig discusses this topic with exceptional clarity in his book Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (HTML, PDF, or printed book; Lessig’s book in under an Attribution-NonCommercial 1.0 License).

Lessig is a Stanford law professor, but Free Culture is not a dry legal treatise about copyright law. Rather, it is a carefully argued, highly readable, and impassioned plea that society needs to reexamine the radical shift that has occurred in legal thinking about the mission and nature of copyright since the late 19th century, especially since there are other societal factors that heighten the effect of this shift.

Lessig describes the current copyright situation as follows:

For the first time in our tradition, the ordinary ways in which individuals create and share culture fall within the reach of the regulation of the law, which has expanded to draw within its control a vast amount of culture and creativity that it never reached before. The technology that preserved the balance of our history—between uses of our culture that were free and uses of our culture that were only upon permission—has been undone. The consequence is that we are less and less a free culture, more and more a permission culture.

How did we get here? Lessig traces the following major changes:

In 1790, the law looked like this:

  PUBLISH TRANSFORM
Commercial © Free
Noncommercial Free Free

The act of publishing a map, chart, and book was regulated by copyright law. Nothing else was. Transformations were free. And as copyright attached only with registration, and only those who intended to benefit commercially would register, copying through publishing of noncommercial work was also free.

By the end of the nineteenth century, the law had changed to this:

  PUBLISH TRANSFORM
Commercial © ©
Noncommercial Free Free

Derivative works were now regulated by copyright law—if published, which again, given the economics of publishing at the time, means if offered commercially. But noncommercial publishing and transformation were still essentially free.

In 1909 the law changed to regulate copies, not publishing, and after this change, the scope of the law was tied to technology. As the technology of copying became more prevalent, the reach of the law expanded. Thus by 1975, as photocopying machines became more common, we could say the law began to look like this:

  PUBLISH TRANSFORM
Commercial © ©
Noncommercial ©/Free Free

The law was interpreted to reach noncommercial copying through, say, copy machines, but still much of copying outside of the commercial market remained free. But the consequence of the emergence of digital technologies, especially in the context of a digital network, means that the law now looks like this:

  PUBLISH TRANSFORM
Commercial © ©
Noncommercial © ©

Lessig points out one of the ironies of copyright law’s development during the last few decades: the entertainment industries that have been the driving force behind moving the law from the permissive to permission side of the spectrum benefited from looser regulation in their infancies:

If "piracy" means using value from someone else’s creative property without permission from that creator—as it is increasingly described today—then every industry affected by copyright today is the product and beneficiary of a certain kind of piracy. Film, records, radio, cable TV. . . . The list is long and could well be expanded. Every generation welcomes the pirates from the last. Every generation—until now.

Returning to Flake’s model, what will the effect of a permission culture be on innovation? Lessig says:

This wildly punitive system of regulation will systematically stifle creativity and innovation. It will protect some industries and some creators, but it will harm industry and creativity generally. Free market and free culture depend upon vibrant competition. Yet the effect of the law today is to stifle just this kind of competition. The effect is to produce an overregulated culture, just as the effect of too much control in the market is to produce an overregulated-regulated market.

New knowledge typically builds on old knowledge, new content on old content. "Democratization of content" works if the content is completely new, if it builds on content that is in the public domain or under a Creative Commons (or similar) license, or if fair use can be invoked without it being stopped by DRM or lawsuits. If not, copyright permissions granted or withheld may determine if a digital "Rip, Mix, Burn" (or as some say "Rip, Mix, Learn") meme lives or dies and the full transformational potential of digital media are realized or not.

If you are concerned about the growing restrictions that copyright law imposes on society, I highly recommend that you read Free Culture.

New Campus Copyright Booklet

Four associations (Association of American Publishers, Association of American Universities, Association of American University Presses, and Association of Research Libraries) have prepared a new copyright booklet, Campus Copyright Rights and Responsibilities: A Basic Guide to Policy Considerations, that, according to ARL, represents "a consensus document" that is "descriptive, not prescriptive." As such, this 30-page document is unique, and it is well worth reading.

Creative Commons Exceeds Fundraising Goal

As I write this, the Creative Commons has raised over $249,000, exceeding its fundraising goal of $225,000. In part, this is due to a check from Microsoft for $25,000. Following the fundraising campaign’s Web page daily, it has been obvious me that a large number of individual contributions have been made in the last week or so. In fact, there have been so many that the December contributor’s page seems to have cratered under the load, since it now shows no one. Anne Marino, Creative Commons Development Director, has posted a blog entry that says, in part:

Because of this tremendous community support, the groundwork for CC’s fundraising program is in place. 2006 will bring many more opportunities for CC to serve the public, create programs for individual Commoners to connect and participate, provide networking forums and events for CC’s new Corporate Commoners Program and encourage and involve continuing institutional support. Stay tuned! 2006 will have many surprises!

Update (1/5/06): The CC campaign had a spectacular finish: there was an anonymous gift of $1 million, plus the total funds raised, excluding this gift, have grown to $346,212.00.

The Sony BMG Rootkit Fiasco Redux

There’s a new development in the Sony BMG Rootkit story (for background see my prior posting and update comment): Sony BMG has reached a settlement (awaiting court approval) regarding the class action lawsuit about its use of DRM (Digital Rights Management) software after virtual "round-the-clock settlement negotiations" (on December 1st numerous individual lawsuits were given class action status). The short story is that XCP-protected CDs will be replaced with DRM-free CDs and customers will be given download/cash incentives to exchange the disks; no recall for MediaMax-protected CDs, but buyers will get song MP3s and an album download. You can get details at "Sony Settles ‘Rootkit’ Class Action Lawsuit."

Since my December 4th update comment, there have been a few articles/blog postings of note about this controversy. "Summary of Claims against Sony-BMG" provides an analysis by Fred von Lohmann of EFF of "the various legal theories that have been brought against Sony-BMG over the CD copy-protection debacle." In "Sony CDs and the Computer Fraud and Abuse Act," Ed Felten considers whether Sony BMG, First4Internet, and SunnComm/MediaMax "violated the Computer Fraud and Abuse Act (CFAA), which is the primary Federal law banning computer intrusions and malware" (he notes that he is not a lawyer), and, in "Inside the MediaMax Prospectus," he highlights some interesting aspects of this document. "New Spyware Claim against Sony BMG" describes a new claim added to the Texas lawsuit by Attorney General Greg Abbott: "MediaMax software . . . violated state laws because it was downloaded even if users rejected a license agreement." Finally, "Just Let Us Play the Movie" examines the fallout for the film industry and DRM use in general.

In other recent IP news, two items of interest: "France May Sanction Unfettered P2P Downloads" (mon dieu!) and "Pro-Hollywood Bill Aims to Restrict Digital Tuners."

Lessig Explains Why the Creative Commons Urgently Needs Donations

In a posting on Lessig Blog yesterday, Lawrence Lessing explains in more detail why donations are still needed by the Creative Commons by December 31st. As I write this, the CC is within $10,000 of its goal. Quote:

(1) Where’d you get the goal of $225,000?

To understand this, you need to know something about the "public support test" that is part of the IRS review all tax-exempt non-profits suffer after 4 years of life. That test essentially asks, how diverse is your funding support. If most of your support comes from a few foundations, then there’s a risk you’ll lose your tax exempt status. I let this issue remain unresolved for too long. But this is the year the numbers will be calculated, and hence the push right now.

When we saw how much we needed to raise to pass the test, we divided up areas of support. The $225,000 is the amount we absolutely must raise from a general public appeal. If we meet that, and the other goals we’ve also set, then we’re fine.

(2) What happens if we fail this test?

The risk is that we’ll lose our public charity status. That’s critical to us because some foundations are not able to support organizations without a public charity status. And however fantastic the support from the public has been so far, we still absolutely must continue to get foundation support.

Lessing also explains in some detail how the raised funds will be used.

You can give at:

http://creativecommons.org/support/


Machinima

Here’s an interesting trend: using video games to create animated digital films. It’s called "Machinima." In one technique, the 3-D animation tools built into games to allow users to extend the games (e.g., create new characters) are used to generate new 3-D films. Of course, it can be more complicated than this: the Machinima FAQ outlines other strategies in layperson’s terms.

BusinessWeek has a short, interesting article on Machinima ("France: Thousands of Young Spielbergs") that describes one social commentary Machinima film (The French Democracy), noting that it got over one million hits in November. It also quotes Paul Marino, executive director of the Academy of Machinima Arts & Sciences as saying: "This is to the films what blogs are to the written media."

If you want to check out more Machinima films, try the 2005 Machinima Film Festival or Machinima.com (try "download" if "watch" doesn’t work).

Machinima is yet another example of how users want to create derivative works from digital media and how powerful a capability that can be—if intellectual property rights owners don’t prohibit it. Since the first Machinima movie was created in 1996, it appears that the video game industry has not moved to squash this movement, and, needless to say, it has thrived. However, this state of affairs may simply reflect Machinima’s low profile: A recent Wired News article, which notes that Machinima has been employed in commercials and music videos, indicates that Doug Lombardi, Director of Marketing at Valve (a video game software company), feels that: "As the films become commercially viable, machinima filmmakers are going to butt up against copyright law."

The Creative Commons Needs Urgent Help

According to Michael W. Carroll, Associate Professor of Law at Villanova University School of Law, the Creative Commons is in danger of losing its charitable status with the IRS unless it receives more donations by the end of the year. Any donation, no matter how small, will help and it will be matched. For donations at $50 or above, the CC offers buttons, stickers, and shirts (at least $75 for this item).

Give at:

http://creativecommons.org/support/

More information at Carroll’s SOAF message.

Also see Lawrence Lessig’s blog posting.


The Sony BMG Rootkit Fiasco

When Mark Russinovich posted "Sony, Rootkits and Digital Rights Management Gone Too Far," he helped trigged a firestorm of subsequent criticism about Sony BMG Music Entertainment’s use of the First4Internet’s digital rights protection software on some of its music CDs. It was bad enough that one of the planet’s largest entertainment companies was perceived as hacking users’ computers with "rootkits" in the name of copy protection, but then the EFF posted an analysis of the license agreement associated with the CDs (see "Now the Legalese Rootkit: Sony-BMG’s EULA"). Things got worse when real hackers started exploiting the DRM software (see "First Trojan Using Sony DRM Spotted"). Then the question posed by the EFF’s "Are You Infected by Sony-BMG’s Rootkit?" posting became a bit more urgent. And the lawsuits started (see "Sony Sued For Rootkit Copy Protection"). Sony BMG suspended production (see "Sony Halts Production of ‘Rootkit’ CDs"), but said it would continue using DRM software from SunnComm (see "Sony Shipping Spyware from SunnComm, Too"). Among others, Microsoft said it will try to eradicate the hard-to-kill DRM software (see "Microsoft Will Wipe Sony’s ‘Rootkit’").

What would drive Sony BMG to such a course of action? Blame that slippery new genie, digital media, which seems to want information to not only be free, but infinitely mutable into new works as well. Once it’s granted a few wishes, it’s hard to get it back in the bottle, and the one wish it won’t grant is that the bottle had never been opened in the first place.

Faced with rampant file sharing that is based on CDs, music companies now want to nip the rip in the bud: put DRM software on customers’ PCs that will control how they use a CD’s digital tracks. Of course, it would be better from their perspective if such controls were built in to the operating system, but, if not, a little deep digital surgery can add lacking functionality.

The potential result for consumers is multiple DRM modifications to their PCs that may conflict with each other, open security holes, deny legitimate use, and have other negative side effects.

In the hullabaloo over the technical aspects of the Sony BMG DRM fiasco, it’s important not to lose sight of this: your CD is now licensed. First sale rights are gone, fair use is gone, and the license reigns supreme.

Pity the poor music librarian, who was already struggling to figure out how to deal with digital audio reserves. Between DRM-protected tracks from services such as iTunes and DRM-protected CDs that modify their PCs, they "live in interesting times."

While the Sony BMG fiasco has certain serio-comic aspects to it, rest assured that music (and other entertainment companies) will eventually iron out the most obvious kinks in the context of operating systems that are designed for intrinsic DRM support and, after some bumps in the road, a new era of DRM-protected digital multimedia will dawn.

That is, it will dawn unless musicians, other digital media creators, and consumers do something about it first.

The Google Print Controversy: A Bibliography

Update: See the Google Book Search Bibliography, Version 2 for the latest bibliography.

This bibliography presents selected English-language electronic works about Google Print that are freely available on the Internet. It has a special focus on the legal issues associated with this project. Page numbers for print/electronic publications are not included unless they are mentioned in the electronic version.

Association of American Publishers. "Google Library Project Raises Serious Questions for Publishers and Authors."

Association of Learned and Professional Society Publishers. "Google Print for Libraries—ALPSP Position Statement."

Authors Guild. "Authors Guild Sues Google, Citing 'Massive Copyright Infringement'."

Band. Jonathan. "The Google Print Library Project: A Copyright Analysis." ARL: A Bimonthly Report on Research Library Issues and Actions from ARL, CNI, and SPARC, no. 242 (2005): 6-9.

Banks, Marcus A. "The Excitement of Google Scholar, the Worry of Google Print." Biomedical Digital Libraries 2 (Article 2 2005).

Battelle, John. "The AAP/Google Lawsuit: Much More At Stake ." John Battelle's Searchblog, 20 October 2005.

Blankenhorn, Dana. "Economic Lesson of Google Print." Moore's Lore, 21 October 2005.

Chafkin, Max. "Google Scrambles to Defend 'Google Print for Libraries' Initiative." The Book Standard, 21 October 2005.

Coleman, Mary Sue. "Riches We Must Share . . ." The Washington Post, 22 October 2005, A21.

Crawford, Susan. "Why Google Is Right." Susan Crawford Blog, 21 September 2005.

Drummond, David. "Why We Believe in Google Print." Google Blog, 19 October 2005.

DW staff. "German Publishers Warm to Google Library." Deutsche Welle, 20 October 2005.

Felten, Edward W. "Google Print, Damages and Incentives." Freedom to Tinker, 23 September 2005.

Finkelstein, Seth. "Google Print Is Not Copyright's Enemy-Of-My-Enemy-Is-My-Friend." Infothought, 23 September 2005.

Google. "Google Checks Out Library Books."

———. "Google Print."

———. "Information for Publishers about the Library Project."

Google, and University Library, University of Michigan. "Cooperative Agreement."

Graham, Jefferson. "Google Print Project Inspires Fans, Fears." USA Today, 17 October 2005.

Helm, Burt. "For Google, Another Stormy Chapter." BusinessWeek, 22 September 2005.

———. "A Google Project Pains Publishers." BusinessWeek, 23 May 2005.

———. "Google's Escalating Book Battle." BusinessWeek, 20 October 2005.

———. "Google's Plan Doesn't Scan." BusinessWeek, 12 August 2005.

———. "A New Page in Google's Books Fight." BusinessWeek, 22 June 2005.

Hof, Rob. "Lawsuit Against Google Print: The End of the Internet?" The Tech Beat, 21 October 2005.

Keegan, Victor. "A Bookworm's Delight." The Guardian, 21 October 2005.

Lavoie, Brian, Lynn Silipigni Connaway, and Lorcan Dempsey. "Anatomy of Aggregate Collections: The Example of Google Print for Libraries." D-Lib Magazine 11, no. 9 (2005).

Lessig, Lawrence. "Google Sued." Lessig Blog, 22 September 2005.

Marco, Meghann. "So, My Publisher Is Sueing Google. . ." MeghannMarco.com, 19 October 2005.

Markoff, John, and Edward Wyatt. "Google Is Adding Major Libraries to Its Database." The New York Times, 14 December 2004.

Mathes, Adam. "The Point of Google Print." Google Blog, 19 October 2005.

O'Reilly, Tim. "Google Library vs. Publishers." O'Reilly Radar, 13 August 2005.

Patry, William. "Google Revisited." The Patry Copyright Blog, 23 September 2005.

______. "Google, the Second Suit and Second Copy." The Patry Copyright Blog, 21 October 2005.

Petit, C. E. "Author's Guild v. Google: A Skeptical Analysis." Scrivener's Error: Warped Weft, 2005.

Pickering, Bobby. "Google Clarifies Print Differences in Europe." Information World Review, 18 October 2005.

Quilter, Laura. "Google & Not-for-Profit Libraries." Derivative Work, 13 August 2005.

Quint, Barbara. "CORRECTIONS: Google Print Not All I Said It Was." Information Today NewsBreaks & the Weekly News Digest, 29 August 2005.

———. "Google and Research Libraries Launch Massive Digitization Project." Information Today NewsBreaks & the Weekly News Digest, 20 December 2004.

———. "Google Library Project Hit by Copyright Challenge from University Presses." Information Today NewsBreaks & the Weekly News Digest, 31 May 2005.

———. "Google Slows Library Project to Accommodate Publishers." Information Today NewsBreaks & the Weekly News Digest, 15 August 2005.

———. "Google's Library Project: Questions, Questions, Questions." Information Today NewsBreaks & the Weekly News Digest, 27 December 2004.

———. "The Other Shoe Drops: Google Print Sued for Copyright Violation." Information Today NewsBreaks & the Weekly News Digest, 3 October 2005.

Raff, Andrew. "Google, Publishers, Copies and 'Being Evil'." IPTAblog, 21 September 2005.

Slater, Derek. "Google Print Commentary Round-Up." A Copyfighter's Musings, 20 October 2005.

Smith, Adam M. "Making Books Easier to Find." Google Blog, 11 August 2005.

Suber, Peter. "Does Google Library Violate Copyright?" SPARC Open Access Newsletter, no. 90 (2005).

Sullivan, Danny. "Forget Google Print Copyright Infringement; Search Engines Already Infringe." Search Engine Watch, 25 May 2005.

_______. "Indexing Versus Caching & How Google Print Doesn't Reprint." Search Engine Watch, 21 October 2005.

Taylor, Nick. ". . . But Not at Writers' Expense." The Washington Post, 22 October 2005, A21.

Thompson, Bill. "Defending Google's Licence to Print." BBC News, 10 October 2005.

University Library, University of Michigan. "UM Library/Google Digitization Partnership FAQ, August 2005."

Vaidhyanathan, Siva. "Google Avoids Copyright Meltdown." SIVACRACY.NET: Opinions, Rants, and Obsessions of Siva Vaidhyanathan and his Friends and Family, 12 August 2005.

_______. "On the Essense of Libraries and Fair Use." SIVACRACY.NET: Opinions, Rants, and Obsessions of Siva Vaidhyanathan and his Friends and Family, 18 August 2005.

_______. "'Steal This Book'." On the Media, 30 September 2005.

"Why I Think Google's Library Plan was Out of Bounds." SIVACRACY.NET: Opinions, Rants, and Obsessions of Siva Vaidhyanathan and his Friends and Family, 13 August 2005.

von Lohmann, Fred. "Authors Guild Sues Google." Deep Links, 20 September 2005.

Wentworth, Donna. "Google Print Is as Google Print Does." Copyfight, 15 August 2005.

Wilkin, John P., and Reginald Carr. "Google's Library Digitization Project: Reports from Michigan and Oxford."

Wojcicki, Susan. "Google Print and the Authors Guild." Google Blog, 20 September 2005.

Wu,Tim. "Leggo My Ego." Slate, 17 October 2005.

Wyatt, Edward. "Google Opens 8 Sites in Europe, Widening Its Book Search Effort." The New York Times, 18 October 2005.

Selected by Librarians' Index to the Internet

The Supremes Landmark Ruling on MGM vs. Grokster

The Supreme Court has ruled against Grokster. See "Supreme Court Rules against File Swapping" and "Court: File-Sharing Services May Be Sued" for details. For background information, see "File-Swap Fallout in Supreme Court Ruling" and the EFF’s MGM v. Grokster page. For in-depth discussion of the underlying issues, see Darknet: Hollywood’s War Against the Digital Generation and Sonic Boom listed at "Digital Works Want to Be Free ."

The key quote in the ruling is:

For the same reasons that Sony took the staple-article doctrine of patent law as a model for its copyright safeharbor rule, the inducement rule, too, is a sensible one for copyright. We adopt it here, holding that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. We are, of course, mindful of the need to keep from trenching on regular commerce or discouraging the development of technologies with lawful and unlawful potential. Accordingly, just as Sony did not find intentional inducement despite the knowledge of the VCR manufacturer that its device could be used to infringe, 464 U. S., at 439, n. 19, mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability. Nor would ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.

The EFF provides other key quotes.

Here’s an interesting take on the ruling: "File-Sharing Decision Hardly Apocalyptic".

ARL issued a statement for the Library Copyright Alliance that said:

The Library Copyright Alliance (LCA)­a group composed of the American Association of Law Libraries, American Library Association, Association of Research Libraries, Medical Library Association, and Special Libraries Association ­welcomes this balanced decision that supports the interests of libraries while addressing issues of widespread copyright infringement. By focusing on conduct that induces infringement, rather than on the distribution of technology, the decision ensures the continued availability of new and evolving digital technologies to libraries and their patrons.

The Center for Democracy and Technology’s press release said:

The court has worked to craft careful balance that allows copyright owners to pursue bad actors, but still protect the rights of technology makers. We hope this decision will preserve the climate of innovation that fostered the development of everything from the iPod to the Internet itself.

The EFF was less sanguine in their press release:

This decision relies on a new theory of copyright liability that measures whether manufacturers created their wares with the “intent” of inducing consumers to infringe. It means that inventors and entrepreneurs will not only bear the costs of bringing new products to market, but also the costs of lawsuits if consumers start using their products for illegal purposes.

And, of course, many bloggers weighed in as seen in Eric Goldman’s roundup, the lively discussion on SCOTUSblog, and the tsunami of comments on Slashdot.

According to "Congress Applauds File-Sharing Ruling" Congress is unlikely to take any immediate action as a result of the ruling.

Robert Summer, former head of the Recording Industry Association of America and former president of Sony Music International, said of the music industry reaction to the verdict: "The response across the board was one of elation."

Google Print Controversy Heats Up

Lots of ink (real and virtual) on Google Print and the AAUP’s recent resistance (all from Open Access News):

"Forget Google Print Copyright Infringement; Search Engines Already Infringe," SearchEngineWatch

"From Gutenberg to Google: Five Views on the Search-Engine Company’s Project to Digitize Library Books," The Chronicle
of Higher Education (requires subscription)

"Google Books under Fire," The Register

"Google Library Project Hit by Copyright Challenge from University Presses," Information Today Newsbreaks

"Google Print Goes Live," InternetNews

"A Google Project Pains Publishers," Business Week

"Google This: ‘Copyright Law,’" Business Week

"Google’s Scan Plan Hits More Bumps," Forbes

"Publishers Lay into Google Print," ZDNet UK

"The University Press Assn.’s Objections," Business Week

"University-Press Group Raises Questions About Google’s Library-Scanning Project," The Chronicle of Higher Education

The Spectrum of E-Journal Access Policies: Open to Restricted Access

As journal publishing continues to evolve, the access policies of publishers become more differentiated. The open access movement has been an important catalyst for change in this regard, prodding publishers to reexamine their access policies and, in some cases, to move towards new access models.

To fully understand where things stand with journal access policies, we need to clarify and name the policies in use. While the below list may not be comprehensive, it attempts to provide a first-cut model for key journal access policies, adopting the now popular use of colors as a second form of shorthand for identifying the policy types.

  1. Open Access journals (OA journals, color code: green): These journals provide free access to all articles and utilize a form of licensing that puts minimal restrictions on the use of articles, such as the Creative Commons Attribution License. Example: Biomedical Digital Libraries.
  2. Free Access journals (FA journals, color code: cyan): These journals provide free access to all articles and utilize a variety of copyright statements (e.g., the journal copyright statement may grant liberal educational copying provisions), but they do not use a Creative Commons Attribution License or similar license. Example: The Public-Access Computer Systems Review.
  3. Embargoed Access journals (EA journals, color code: yellow): These journals provide free access to all articles after a specified embargo period and typically utilize conventional copyright statements. Example: Learned Publishing.
  4. Partial Access journals (PA journals, color code: orange): These journals provide free access to selected articles and typically utilize conventional copyright statements. Example: College & Research Libraries.
  5. Restricted Access journals (RA journals, color code: red): These journals provide no free access to articles and typically utilize conventional copyright statements. Example: Library Administration and Management. (Available in electronic form from Library Literature & Information Science Full Text and other databases.)

Using this taxonomy, an examination of the contents of the Directory of Open Access Journals quickly reveals that, in reality, it is the Directory of Open and Free Access Journals, because many listed journals do not use a Creative Commons Attribution License or similar license.

Some may argue that the distinction between OA and FA journals is meaningless; however, to do so suggests that the below sections of the "Budapest Open Access Initiative" in italics are meaningless and, consequently, that the Open Access movement is really just the Free Access movement.

By "open access" to this literature, we mean its free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited.

Not that there would be anything wrong with the Free Access movement, but some may feel that the broader scope of the Open Access movement is much more desirable.

In any case, the journal universe is not just green or red, and it’s a pity that we don’t know the breakdown of the spectrum (e.g., x number of green journals and y number of cyan journals), for that would give us a better handle on how the world has changed from the days when all journals were red journals.

New OAI-PMH Guidelines

The Open Archives Initiative has issued Conveying Rights Expressions about Metadata in the OAI-PMH Framework, a new Implementation Guidelines document aimed at clarifying the important issue of how to express rights information about harvested metadata in OAI-PMH.

From the document:

Data providers might want to associate rights expressions with the metadata to indicate how it may be used, shared, and modified after it has been harvested. This specification defines how rights information pertaining to the metadata should be included in responses to OAI-PMH requests. The described technique:

  • Is based on delivering rights expressions that apply to metadata included in OAI-PMH responses. It uses the optional containers that have been defined as part of the OAI-PMH specification. As a result, no changes to the protocol are made, and compatibility with all existing OAI-PMH implementations is maintained.
  • Is not tied to any particular rights expression language. This document makes use of Creative Commons and GNU licenses, but the use of these specific languages is for illustrative purposes only.

Essential reading for OAI-PMH geeks.

Two Views of IRs

Yesterday, Stevan Harnad offered extensive comments on my "Not Green Enough" posting. Here are my thoughts on those comments.

The crux of the matter is two very different views of institutional repositories (IRs), and, therefore, different perceptions about how quickly IRs will solve the self-archiving problem. My apologies in advance to Stevan if my capsule summary of his position is incorrect.

In Stevan’s view, the sole purpose of an IR is to provide free global access to e-prints. Once institutions adopt the Berlin 3 recommendations (which require faculty to self-archive in IRs and encourage them to publish in OA journals), establishing and running an IR is a cheap, simple technical problem. Therefore, it doesn’t matter whether publisher copyright agreements allow scholars to archive in disciplinary archives or in the Internet Archive’s universal repository. (I’m unclear about Steven’s position about independent scholars who will never be able to self-archive in an IR because they are not affiliated with any institution or about researchers who are affiliated with non-academic institutions that will never have IRs. Perhaps, in the last case, he believes that IRs will be universal for every non-academic institution.) IR managers who hold other views are obstructing progress because they are wasting time on nonessential issues, not correctly perceiving the urgency and simplicity of his self-archiving solution, and unnecessarily delaying the progress of OA.

My view of the basic function of an IR is best summed up by two quotes (the first by Clifford Lynch, Executive Director of the Coalition for Networked Information) and the second by me:

"In my view, a university-based institutional repository is a set of services that a university offers to the members of its community for the management and dissemination of digital materials created by the institution and its community members. It is most essentially an organizational commitment to the stewardship of these digital materials, including long-term preservation where appropriate, as well as organization and access or distribution." [1]

"An institutional repository includes a variety of materials produced by scholars from many units, such as e-prints, technical reports, theses and dissertations, data sets, and teaching materials. Some institutional repositories are also being used as electronic presses, publishing e-books and e-journals." [2]

Given this vision of IRs, I see them as more technically complex than Steven. However, I see the primary challenges being in the areas of achieving buy-in from university administrators and faculty, establishing a wide range of policies and procedures (e.g., acceptable types and formats of material, deposit control and facilitation strategies, copyright compliance procedures, and metadata utilization), recruiting content (including depositing items for faculty if required to help populate the IR), providing user support and training, and providing data migration services as file formats become obsolete. Of course, if IRs a assume formal publishing role, this adds new dimensions of complexity, but I’ll defer that point for now since it is only being done in a few IRs, such as the following two examples:

eScholarship Repository
http://repositories.cdlib.org/escholarship/

Internet-First University Press at Cornell University
http://dspace.library.cornell.edu/handle/1813/62

(To clarify one point of confusion, libraries are not generally expecting IRs to solve the e-journal preservation problem. They are turning to solutions such as LOCKSS to do that.)

I do not believe that getting faculty to voluntarily deposit e-prints will be easy. I’m not convinced that most university administrators are going to be quickly and effortlessly persuaded to endorse Berlin 3 unless it is, in effect, externally mandated (e.g., Research Councils UK proposal).

I think that at least a significant subset of universities will want some type of basic vetting of the copyright compliance status of submitted e-prints, and, given the current wide range of variations in publisher copyright agreements and a relatively low level of faculty awareness and interest in copyright matters, that this will be a thorny issue (and one that directly relates to my standard copyright agreement idea).

This is why Johanneke Sytsema of Oxford University said in her comment about "How Green Is My Publisher"
(http://www.escholarlypub.com/digitalkoans/2005/04/26/how-green-is-my-publisher/#comments):

"I do agree with Charles Bailey that ‘green’ doesn’t automatically mean ‘go’. Being a repository manager myself, I never just ‘go’ when I encounter ‘green’ on the (invaluable) SHERPA Romeo list. First, I need to check whether the publisher allows archiving into an institutional repository, rather than just on a personal or departmental website. Secondly, I need to check the permitted format: some publisher[s] object to using the publisher PDF, other publishers require the use of the publisher PDF. Thirdly, I need to check on publisher policies every time I deposit, since publishers may change their policy from day to day. So, could the light get greener than it is now? I believe, it should."

Given my view of IRs, I agree with University of Rochester IR manager Susan Gibbons, when she says that the "the costs and efforts involved in maintaining an IR are substantial."

Which of these two views of institutional repositories will prevail? Time will tell.

If my view prevails, IRs will take longer than if Stevan’s view prevails. Academic authors who have papers accepted by publishers with restrictive author copyright agreements (i.e., those that bar deposit in disciplinary archives or in the universal repository) will have to wait to deposit papers in an OAI-PMH compliant archive. Lacking a way to self-archive with relative ease, they may simply choose not to do so. Non-academic authors may never be able to deposit their papers in an OAI-PMH compliant archive.

If Stevan’s view prevails, IRs will pop up like mushrooms and the above won’t matter, as long as authors enthusiastically deposit their old papers once their IRs are in place.

If the only barrier is a small investment of time and money (as Stevan describes below), it’s unclear to me why we don’t have universal IRs today:

"The 94% of authors at archiveless universities are one $2000 linux server plus a few days’ one-time sysad set-up time and a few annual sysaddays’ maintenance time away from having an institutional repository."

But, I say, Godspeed, Stevan. Prove me wrong, for that will mean that OA happens sooner, and scholars without access to IRs will be deprived of the benefits of depositing in an OAI-compliant repository (or depositing at all) for a shorter period of time.

And, I cheerfully give Steven the last word on the matter (for now anyway).

1. Clifford A. Lynch, "Institutional Repositories: Essential Infrastructure for Scholarship in the Digital Age," ARL: A Bimonthly Report on Research Library Issues and Actions from ARL, CNI, and SPARC, no. 226 (2003),
http://www.arl.org/newsltr/226/ir.html

2. Charles W. Bailey, Jr., Open Access Bibliography: Liberating Scholarly Literature with E-Prints and Open Access Journals (Washington, DC: Association of Research Libraries, 2005), xviii,
http://info.lib.uh.edu/cwb/oab.pdf

Not Green Enough

Yesterday, Stevan Harnad took the time to comment extensively on my "How Green Is My Publisher?" posting. Thanks for doing so, Stevan. Here are some further thoughts on the matter.

CB:My publication page, check. We don’t have an institutional repository yet, but I assume that "other external Web site" will cover that when we do, check. Wait a minute, what if I want to deposit the e-print in a disciplinary archive like E-LIS or I want to put it in the Internet Archive’s upcoming "OAI-compliant ‘universal repository‘"? Looks to me like I’m out of luck. No way to immediately deposit the paper in an OAI-PMH compliant archive that will have a longer life than my Website and that can be harvested by OAI-PMH search services, such as OAIster.

SH: "The restrictions on 3rd-party archives are perfectly reasonable and no problem whatsoever at this time. The problem today (just so we keep our eyes on the ball!) is the non-archiving of 85% of articles, hence their inaccessibility to all those would-be users whose universities cannot afford access to the journal’s official version! It is cheap and easy for any university to create an OAI-compliant institutional archive, and OAIster can happily harvest the metadata.
http://archives.eprints.org/eprints.php?action=browse"

eprints.org’s Institutional Archives Registry currently shows a total of 424 archives. When we browse by archive type, we discover that there are 192 "Research Institutional or Departmental" registered archives worldwide. Of course, “Departmental” archives are not institutional repositories. They do not have an institutional scope of coverage, nor are they as likely as institutional archives to be permanent. True, departments are relatively stable, but their commitment to maintaining archives may not be (e.g., the archive may be the pet project of one or a few faculty members). By contrast, once an institution commits to having an archive, it’s likely to be a more permanent arrangement, especially if it is run by a library.

But, let’s wave our hands, and say 100% of them are institutional repositories (IRs). Universities Worldwide, which is "based on the ‘World List of Universities 1997’ published by the International Association of Universities (IAU) and links discovered or posted here," currently lists 7,130 universities in 181 countries. Assuming that this is a good rough approximation, that means that about 6% of all universities have IRs. Meaning, of course, that 94% do not.

And that means that 94% of authors at universities cannot self-archive in an institutional repository (or, given the hand waving, in a departmental archive). True, they can self-archive on personal Web pages. The issues with this strategy are: (a) how may authors have up-to-date publication pages or have publication pages at all?, (b) how long will they last (i.e., authors change jobs, retire, and die)?, and (c) there is no OAI-PMH access to those pages, so they don’t show up in OAIster and similar search engines.

Now, disciplinary archives and the Internet Archive’s universal repository solve these problems. Moreover, they solve another problem: independent scholars, corporate researchers, and other non-academic authors may never have an institutional repository to self-archive in.

I don’t see this as "no problem whatsoever at this time." Quite the contrary. To be "no problem," we would have to believe that it doesn’t matter if articles are archived in OAI-PMH compliant repositories or archives. To be "no problem," we would have to not care whether scholars who will never have an institutional repository at their disposal can self-archive.

As to the question of it being "cheap and easy for any university to create an OAI-compliant institutional archive," I think there is some difference of opinion on that point. Susan Gibbons says [1] the "the costs and efforts involved in maintaining an IR are substantial," and she provides these annual IR cost estimates:

  1. $285,000, MIT
  2. $100,000 (Canadian), Queens University (for staffing only)
  3. $200,000, University of Rochester
  4. between 2,280 and 3,190 staff hours,University of Oregon

But, of course, these differences in perception about costs relate to some degree to Stevan’s next point:

SH: (And worrying about the preservation of non-existent contents is rather putting the cart before the horse. The self-archived OA versions of a goodly portion of the 15% of the articles that have been self-archived in the past 15 years are still online and OA to tell the tale to this day. All their publishers’ official versions are too. So fussing about the permanence of the non-contents of cupboards that are in any case meant to be access-supplements, not the official version of record, is rather misplaced, when what is immediately missing and urgently needed is their presence, not their permanence.)

I think that Stevan will find that few academic libraries are not going to worry about permanence. Not only will they worry about the permeance of digital objects in their repositories, they will also worry about the permanence of publisher’s archives. Librarians know that publishers are corporations, and that corporations change priorities, merge, and fail. As libraries increasingly abandon print subscriptions and go e-only for economic reasons, at some point there will be no permanent distributed print archive of new journal issues in libraries worldwide as there is today, and libraries are going to worry about that a great deal. Moreover, universities are not going to establish institutional repositories just to support OA. That may be one important item on the agenda, but there will be other archiving needs to be met as well, and factors associated with those digital objects will affect the perception of the need for overall IR preservation too.

Libraries are also going to provide new services to provide IR support in addition to technical support, ranging from convicting faculty to self-archive and helping them do so to training users in using IRs (as well as other e-print services worldwide). These services will cost money.

Don’t want libraries to lead the IR effort if this is true?

In the words of Bob Dylan:

I asked the captain what his name was
And how come he didn’t drive a truck
He said his name was Columbus
I just said, "Good luck."

Moving on.

CB: “The agreement also states that the e-print must contain a fair amount of information about the publisher and the paper: the published article’s citation and copyright date, the publisher’s address, information about the publisher’s document delivery service, and a link to the publisher’s home page.”

SH: That’s just fine too. It is only good scholarly practice to provide the full reference information and to link to the official version of record for the sake of all those potential users who can afford it. What is wrong with that, and why would any author not want to do that?

Sure, an author would want to provide a citation to the published paper and a link to it, but I suspect few will be excited about providing a fair amount of advertising information for the publisher in their e-prints, such as the publisher’s address, home page, and document delivery service. It’s not a deal killer, but it’s more work for authors or IR staff. The more individual publisher variations that there are in copyright transfer agreements, the harder it is for scholars and IR staff to meet these varying requirements.

CB: Second, it would be helpful if such directories could identify whether articles can be deposited in key types of archives. I know that we don’t want the color codes to look like SpeedyGrl.com’s Ultimate Color Table, but I think that this is an important factor in addition to the type of e-print permitted.

SH: They already do. The main distinction is the author’s own institutional archive versus central (3rd-party) archives. It is the former that are the critical ones. The rest can be done by metadata harvesting.

The SHERPA colors do not make this distinction. Neither do the otherwise helpful notes. You must look at each specific agreement (if there is a link to it).

CB: Fourth, although copyright transfer agreements have always been a confusing mess, now we want authors to actually read and evaluate them, not just mindlessly sign them like they did when digital archiving wasn’t an issue. And institutional repository managers (or archive managers) need to make sense of them post facto to determine if articles can be legally deposited and what terms apply to those deposits. So, maybe it’s time to tilt at a new windmill: a set of standardized copyright transfer agreements. I know, it’s like trying to herd several thousand hyperactive cats. But, a few years ago, getting standardized use statistics for electronic resources from publishers seemed hopeless, and some progress has been made on that score.

SH: No, it’s not more windmills or red herrings that researchers, their institutions, their funders, and research itself need: What they need is to go ahead and self-archive.

Developing clear, understandable standard copyright transfer agreements is a red herring? Let’s look at just one aspect of the problem: IR managers’ copyright concerns. I offer some quotes:

"One aspect of the survey [baseline survey of research material already held on departmental and personal Web pages in the ed.ac.uk domain] that is not shown in the results is the lack of consistency in dealing with copyright and IPR issues that scholars face when placing material online. Some academic units have responded by not self-archiving any material at all. A rather worrying example of this is the School of Law (—do they know something that we don’t?) A small percentage of individual scholars have responded by using general disclaimers that may or may not be effective. Others, generally well-established professors, have posted material online that is arguably in breach of copyright agreements, e.g. whole book chapters. Most, however, take a middle line of only posting papers from sympathetic publishers who allow some form of self-archiving. It is apparent that if institutional repositories are going to work, then this general confusion over copyright and IPR issues needs to be addressed right at the source." [2]

"Filling a repository for published and peer-reviewed papers is a slow process, and it is clear that it is a task that requires a significant amount of staff input from those charged with developing the repository. Although we have succeeded in adding a reasonable amount of content to the repository we have also been offered significant amounts of content that cannot be added because of restrictive publisher copyright agreements. In some cases academics have offered between ten and twenty articles and we have not been able to add any of them to the repository. This is a clear demonstration that major changes need to take place at a high level in order for repositories to be successful." [3]

Certainly, all OA advocates are eager to get on with the business of doing OA vs. simply reflecting on it, and few have done as much as Stevan to advance the cause, but, in my view, the issues I’ve raised warrant further consideration and action.

Notes

1. Susan Gibbons, "Establishing an Institutional Repository," Library Technology Reports 40, no. 4 (2004): 54, 56.

2. Theo Andrew, "Trends in Self-Posting of Research Material Online by Academic Staff." Ariadne, no. 37 (2003),
http://www.ariadne.ac.uk/issue37/andrew/intro.html.

3. Morag Mackie, "Filling Institutional Repositories: Practical Strategies from the DAEDALUS Project," Ariadne, no. 39 (2004),
http://www.ariadne.ac.uk/issue39/mackie/intro.html.

How Green Is My Publisher?

Back in the early 1990s, I began to fight to retain the copyright to my scholarly writings. First, the publishers thought I was kidding. Then, when it was clear that I wasn’t, they thought I was nuts. Generally, they weren’t willing to negotiate. So, I sought out the few journals that would comply with this strange whim or that had editors who would "forget" to have me sign an author agreement. Unfortunately, some of the more liberal journals got gobbled up by megapublishers, limiting my options and casting some doubt on handshake deals. Once e-only journals by nonconventional publishers took off, they became my venue of choice, since they typically allowed copyright retention by default.

Things have changed, in large part do to the growing influence of the open access movement. Now, many publishers allow self archiving of e-prints (electronic preprints or postprints), and this, in theory, means that authors can cheerfully assign their copyrights to those publishers. How many publishers do this? Well we don’t know for sure, but according to Summary Statistics So Far (whose figures are based on the Romeo Project), 92% of the 8,450 processed journals are "green," (can archive postprint) or "pale green"(can archive preprint). (Gray means you can’t archive either one.)

If you want to self archive a scholarly article, the SHERPA Publisher Copyright Policies & Self-Archiving site is the place to go to determine whether the publisher of the journal you have in mind for your article will permit it. So, when approached recently about writing a paper for a library publisher (let’s call it X), I fired up Mozilla and looked X up. Good news, X is green, meaning "can archive pre-print and post-print." Not the dreaded white ("archiving not formally supported"), not yellow ("can archive pre-print (ie pre-refereeing)"), not even blue ("can archive post-print (ie final draft post-refereeing)"), but green. SHERPA did warn me of two conditions: "Published source must be acknowledged" and "Eprint server is non-profit." No problemo, right? Being ever cautious, I then used the handy link to the actual policy.

Here’s what I found. My "preprint distribution rights" allow "posting as electronic files on the contributor’s own Web site for personal or professional use, or on the contributor’s internal university/corporate intranet or network, or other external Web site at the contributor’s university or institution, but not for either commercial (for-profit) or systematic third party sales or dissemination, by which is meant any interlibrary loan or document delivery systems. The contributor may update the preprint with the final version of the article after review and revision by the journal’s editor(s) and/or editorial/peer-review board."

My publication page, check. We don’t have an institutional repository yet, but I assume that "other external Web site" will cover that when we do, check. Wait a minute, what if I want to deposit the e-print in a disciplinary archive like E-LIS or I want to put it in the Internet Archive’s upcoming "OAI-compliant ‘universal repository‘"? Looks to me like I’m out of luck. No way to immediately deposit the paper in an OAI-PMH compliant archive that will have a longer life than my Website and that can be harvested by OAI-PMH search services, such as OAIster.

The agreement also states that the e-print must contain a fair amount of information about the publisher and the paper: the published article’s citation and copyright date, the publisher’s address, information about the publisher’s document delivery service, and a link to the publisher’s home page. Guess I can do this when I’m modifying the article to incorporate the editorial changes. That should keep me off the streets.

So, what can we conclude from this brief dip into the murky waters of author agreements other than retaining rights may still be a good idea (if you can do it)?

First, There are swirling currents of complexity beneath the placid surface of color-coded copyright transfer agreement directories. This is not to say that such directories are not indispensible (or not doing a good job), but rather that, given the idiosyncratic nature of such agreements, authors still need to read the details if they want to be fully aware of their residual rights. They may not always like what they find, and what they find may affect their willingness to self archive if it’s too limiting or burdensome. "Green" may not always mean "go."

Second, it would be helpful if such directories could identify whether articles can be deposited in key types of archives. I know that we don’t want the color codes to look like SpeedyGrl.com’s Ultimate Color Table, but I think that this is an important factor in addition to the type of e-print permitted.

Third, if claims are going to made about the number of "green" journals, maybe more consideration about what "green" means is in order, and perhaps OA advocates should agree on their color schemes. Is "can archive pre-print and post-print" enough for "green," or should it be "can archive pre-print and post-print on the author’s Website or in any noncommercial archive or repository"? If the latter, the heat should be turned up on publishers that don’t permit it by authors and OA advocates.

Fourth, although copyright transfer agreements have always been a confusing mess, now we want authors to actually read and evaluate them, not just mindlessly sign them like they did when digital archiving wasn’t an issue. And institutional repository managers (or archive managers) need to make sense of them postfacto to determine if articles can be legally deposited and what terms apply to those deposits. So, maybe it’s time to tilt at a new windmill: a set of standardized copyright transfer agreements. I know, it’s like trying to herd several thousand hyperactive cats. But, a few years ago, getting standardized use statistics for electronic resources from publishers seemed hopeless, and some progress has been made on that score.

Family Entertainment and Copyright Act

In "House OKs Family Copyright Bill," Wired News reports on the passage of the Family Entertainment and Copyright Act, which "Exempts from copyright and trademark infringement, under certain circumstances: (1) making limited portions of the audio or video content of a motion picture for private home viewing imperceptible; or (2) the creation of technology that enables such editing."

Just image what Kill Bill looks like on ClearPlay. Not even time to eat your popcorn. If protecting the artistic integrity of movies doesn’t matter to you, I suppose this law is harmless enough, but is it the infamous "slippery slope"? First families in private showing in homes, then schools in public showings, then who knows? Or, first DVDs, then other digital media? Or, first sex and violence, then other potentially objectionable material? Maybe e-textbooks with that pesky evolution concept neatly excised on demand by concerned parents or schools. Or, maybe that’s creationism instead. After all, what is objectionable is in the eye of the beholder.