Lawrence Lessig’s Code: Version 2.0 is out. This update of the now classic Code and Other Laws of Cyberspace was written using a Wiki, with Lessig editing and refining that digital text.
The resulting book is under a Creative Commons Attribution-ShareAlike 2.5 License.
It can be freely downloaded in PDF form. Later, the final version of the book will be available on a second Wiki.
The Creative Commons has redone its Web site using WordPress and added a new feature: CC Labs, which features development projects.
Current projects include the DHTML License Chooser, the Freedoms License Generator, and the Metadata Lab. (Consulting the Creative Commons Licenses page before using these tools will give you a preview of your license options.)
The symbols used to represent the CC licenses have changed. For example, here’s the Creative Commons Attribution-NonCommercial 2.5 License symbol.
Read more about these changes in Lawrence Lessig’s blog posting.
The South African Learning Commons has published a multimedia introduction to copyright, open content, and open source issues for kids.
It is available for Linux, Mac, and Windows computers, and it is under the Creative Commons Attribution Share-Alike South Africa license.
When I was chairing the Scholarly Communications Public Relations Task Force at the UH Libraries, the task force initiated a series of projects to increase awareness of key issues on the UH campus under the name "Transforming Scholarly Communication": a Website, a Weblog, and a symposium.
I’m pleased to announce that both the PowerPoint presentations and the QuickTime videos of the symposium speeches are now available. Thanks again to our speaker panel for participating in this event.
Ray English, Director of Libraries at Oberlin College and Chair of the SPARC Steering Committee, kicked things off with a talk on "The Crisis in Scholarly Communication" (PowerPoint, QuickTime Video, and "Sites and Cites for the Struggle: A Selective Scholarly Communication Bibliography").
Next, Corynne McSherry, Staff Attorney at the Electronic Frontier Foundation and author of Who Owns Academic Work?: Battling for Control of Intellectual Property, spoke on "Copyright in Cyberspace: Defending Fair Use" (PowerPoint and QuickTime Video).
Finally, Peter Suber, Research Professor of Philosophy at Earlham College, Senior Researcher at the Scholarly Publishing and Academic Resources Coalition (SPARC), and the Open Access Project Director at Public Knowledge, discussed "What Is Open Access?" (PowerPoint and QuickTime Video).
The Creative Commons has launched it’s 2006 fund raising campaign, and I’d urge my readers to support it as generously as they can.
Why? The reason is simple: it’s easier to restore balance in copyright by convincing content creators to embrace Creative Commons licenses than it is to influence copyright legislation that rolls back lengthy copyright protection periods that are in danger of becoming virtually perpetual, that constricts the ever-widening scope of copyright, and that permits realistic fair use of DRM-protected digital materials. Moreover, the Creative Commons fosters what Lawrence Lessig calls a "read-write" digital culture that permits digital material to be freely used and remixed vs. a read-only-maybe digital culture where digital materials are often hidden behind access barriers and cannot be remixed without permission, which may be impossible to obtain. If you doubt that this can work, consider this quote from the Creative Commons: "From January 2006 to July 2006 there was a growth from 40,000,000 to 140,000,000 linkbacks to our licenses!"
So, donate. At the $75 level or above you’ll get a t-shirt as well as the button and sticker that are available at lower donation levels. Or, don’t donate, but help out by buying Creative Commons gear at their store.
The "Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia?" postprint is now available.
The abstract is below:
Three critical issues—dramatic expansion of the scope, duration, and punitive nature of copyright laws; the ability of Digital Rights Management (DRM) systems to lock-down digital content in an unprecedented fashion; and the erosion of Net neutrality, which ensures that all Internet traffic is treated equally—are examined in detail and their potential impact on libraries is assessed. How legislatures, the courts, and the commercial marketplace treat these issues will strongly influence the future of digital information for good or ill.
If you would like a more detailed description, see my posting about the preprint.
Peter Suber has made the following comment on Open Access News about "How Can Scholars Retain Copyright Rights?":
This is a good introduction to the options. I’d only make two additions.
- Authors needn’t retain full copyright in order to provide OA to their own work. They only need to retain the right of OA archiving—which, BTW, about 70% of journals already give to authors in the copyright transfer agreement.
- Charles mentions the author addenda from SPARC and Science Commons, but there’s also one from MIT.
Peter is right on both points; however, my document has a broader rights retention focus than providing OA to scholars’ work, although that is an important aspect of it.
For example, there is a difference between simply making an article available on the Internet and making it available under a Creative Commons Attribution-NonCommercial 2.5 License. The former allows the user to freely read, download, and print the article for personal use. The latter allows user to make any noncommercial use of the article without permission as long as proper attribution is made, including creating derivative works. So professor X could print professor Y’s article and distribute in class without permission and without worrying about fair use considerations. (Peter, of course, understands these distinctions, and he is just trying to make sure that authors understand that they don’t have to do anything but sign agreements that grant them appropriate self-archiving rights in order to provide OA access to their articles.)
I considered the MIT addenda, but thought it might be too institution-specific. On closer reading, it could be used without alteration.
Scholars are often exhorted to retain the copyright rights to their journal articles to ensure that they can freely use their own work and to permit others to freely read and use it as well. The question for scholars who are convinced to do so is: "How do I do that?"
The first thing to understand is that copyright is not one right. Rather, it is a bundle of rights that can be individually granted or withheld. The second thing to understand is that rights can either be granted exclusively to one party or nonexclusively to multiple parties.
What are these rights? Here’s what the U.S. Copyright Office says:
- To reproduce the work in copies or phonorecords;
- To prepare derivative works based upon the work;
- To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
- To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual
images of a motion picture or other audiovisual work; and- In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
A legal document, typically called a copyright transfer agreement, governs the copyright arrangements between you and the publisher and determines what rights you retain and what rights you transfer or grant to the publisher. The publisher may offer a single standard agreement or may have more than one agreement.
Whereas the publisher has had its agreement(s) written by copyright lawyers, you are not likely to be a copyright lawyer. This puts you at a disadvantage in terms or understanding, modifying, or replacing the publisher’s agreement. Therefore, it is very helpful to have documents written by copyright lawyers that you can use to modify or replace the publisher’s agreement with, even if the organization providing such documents does so under a disclaimer that it is not providing "legal advice."
Ordered by increasing level of difficulty in getting publisher acceptance, here are the basic strategies for dealing with copyright transfer agreements:
Of course, other strategies are possible. For example, you could use another type of open content license instead of the Science Commons Publication Agreement and Copyright License. However, you might want to keep it simple to start.
For more information on copyright transfer agreements, see Copyright Resources for Authors and Scholars Have Lost Control of the Process.
For a directory of publisher copyright and self-archiving policies, see Publisher Copyright Policies & Self-Archiving.
By the way, DigitalKoans doesn’t provide legal advice and the author is not a lawyer.
As usual, the LITA top 10 technology trends session at ALA produced some thought-provoking results. And, as usual, I have a somewhat different take on this question.
I’ll whittle my list down to five.
A preprint of my "Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia?" paper is now available.
It will appear in Information Technology and Libraries 25, no. 3 (2006).
This quote from the paper’s conclusion sums it up:
What this paper has said is simply this: three issues—a dramatic expansion of the scope, duration, and punitive nature of copyright laws; the ability of DRM to lock-down content in an unprecedented fashion; and the erosion of Net neutrality—bear careful scrutiny by those who believe that the Internet has fostered (and will continue to foster) a digital revolution that has resulted in an extraordinary explosion of innovation, creativity, and information dissemination. These issues may well determine whether the much-touted "information superhighway" lives up to its promise or simply becomes the "information toll road" of the future, ironically resembling the pre-Internet online services of the past.
For those who want a longer preview of the paper, here’s the introduction:
Blogs. Digital photo and video sharing. Podcasts. Rip/Mix/Burn. Tagging. Vlogs. Wikis. These buzzwords point to a fundamental social change fueled by cheap PCs and servers, the Internet and its local wired/wireless feeder networks, and powerful, low-cost software: citizens have morphed from passive media consumers to digital media producers and publishers.
Libraries and scholars have their own set of buzz words: digital libraries, digital presses, e-prints, institutional repositories, and open access journals to name a few. They connote the same kind of change: a democratization of publishing and media production using digital technology.
It appears that we are on the brink of an exciting new era of Internet innovation: a kind of digital utopia. Dr. Gary Flake of Microsoft has provided one striking vision of what could be (with a commercial twist) in a presentation entitled "How I Learned to Stop Worrying and Love the Imminent Internet Singularity," and there are many other visions of possible future Internet advances.
When did this metamorphosis begin? It depends on who you ask. Let’s say the late 1980’s, when the Internet began to get serious traction and an early flowering of noncommercial digital publishing occurred.
In the subsequent twenty-odd years, publishing and media production went from being highly centralized, capital-intensive analog activities with limited and well-defined distribution channels to being diffuse, relatively low-cost digital activities with the global Internet as their distribution medium. Not to say that print and conventional media are dead, of course, but it is clear that their era of dominance is waning. The future is digital.
Nor is it to say that entertainment companies (e.g., film, music, radio, and television companies) and information companies (e.g., book, database, and serial publishers) have ceded the digital content battlefield to the upstarts. Quite the contrary.
High-quality thousand-page-per-volume scientific journals and Hollywood blockbusters cannot be produced for pennies, even with digital wizardry. Information and entertainment companies still have an important role to play, and, even if they didn’t, they hold the copyrights to a significant chunk of our cultural heritage.
Entertainment and information companies have understood for some time that they must adopt to the digital environment or die, but this change has not always been easy, especially when it involves concocting and embracing new business models. Nonetheless, they intend to thrive and prosper—and to do whatever it takes to succeed. As they should, since they have an obligation to their shareholders to do so.
The thing about the future is that it is rooted in the past. Culture, even digital culture, builds on what has gone before. Unconstrained access to past works helps determine the richness of future works. Inversely, when past works are inaccessible except to a privileged minority, it impoverishes future works.
This brings us to a second trend that stands in opposition to the first. Put simply, it is the view that intellectual works are "property"; that this property should be protected with the full force of civil and criminal law; that creators have perpetual, transferable property rights; and that contracts, rather than copyright law, should govern the use of intellectual works.
A third trend is also at play: the growing use of Digital Rights Management (DRM) technologies. When intellectual works were in paper form (or other tangible forms), they could only be controlled at the object-ownership or object-access levels (a library controlling the circulation of a copy of a book is an example of the second case). Physical possession of a work, such as a book, meant that the user had full use of it (e.g., the user could read the entire book and photocopy pages from it). When works are in digital form and they are protected by some types of DRM, this may no longer true. For example, a user may only be able to view a single chapter from a DRM-protected e-book and may not be able to print it.
The fourth and final trend deals with how the Internet functions at its most fundamental level. The Internet was designed to be content, application, and hardware "neutral." As long as certain standards were met, the network did not discriminate. One type of content was not given preferential delivery speed over another. One type of content was not charged for delivery while another wasn’t. One type of content was not blocked (at least by the network) while another wasn’t. In recent years, "network neutrality" has come under attack.
The collision of these trends has begun in courts, legislatures, and the marketplace. It is far from over. As we shall see, it’s outcome will determine what the future of digital culture looks like.
In Darknet: Hollywood’s War Against the Digital Generation, J. D. Lasica tells the story of Tarnation, a documentary film that nominated for a Camera d’Or award (pg. 84). The film was made for $218.31 using a video camera and iMovie. One catch: Lasica says that getting permission to use brief commercial music and video segments in the movie cost around $400,000. Creating derivative works that use the entertainment industry’s copyrighted works is clearly not cheap, assuming that you can obtain permission to use them at all.
Imagine instead a world where you could download, play, and use digital media works for free without paying license fees. It may sound impossible, but that world is starting to be built using Creative Commons licenses.
The most liberal license of the six main Creative Commons licences is Attribution: "This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation."
The most restrictive license is Attribution Non-Commercial No Derivatives: "This license is often called the ‘free advertising’ license because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can’t change them in any way or use them commercially."
Here’s a brief guide to selected resources that will help you get started finding digital audio works licensed under Creative Commons licenses.
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.
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.
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.
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.
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."
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/
Here are two short Flash films that explain the Creative Commons. The first is a general overview, and the second gives examples of real life uses of CC licences.
Also available are two comic books:
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."
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.
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.
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.
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)Âa group composed of the American Association of Law Libraries, American Library Association, Association of Research Libraries, Medical Library Association, and Special Libraries Association Âwelcomes 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."
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
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.
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.
