©ollectanea

We are very lucky to have as our guest blogger this month, a colleague and friend of mine from way back, Kenny Crews. Kenny has newly joined Columbia University's Library as Director of its Copyright Advisory Office. Long before that, however, he was one of the first lawyer-librarians to establish an active Web presence with the introduction of the Copyright Management Center at IUPUI. That virtual Center was a real inspiration to me.

Today Kenny is in Germany and perhaps he can tell us something about what he is up to there. Thankfully that won't keep him from blogging with us through May. Welcome, Kenny!

Public Knowledge (who works tirelessly on behalf of documentary filmmakers) announced on Thursday that two bills addressing orphan works had been introduced: Orphan Works 2008: House and Senate Bills Introduced. As usual, I urge you to read the bills. Public Knowledge has links to both of them. And read Public Knowledge's assessment. You're not going to get their type of assessment here. They thank the Congressional committees, they look forward to working on the bills. They seem realistic in their assessment of the differences between the two, noting the relatively "clean" Senate version and the House version's including many additional provisions that go much further in addressing the concerns of those copyright owners who view orphan works legislation as quite detrimental to their interests. But near the end of their observations they note that

[Visual artists will] try to add more exceptions and carve-outs as poison pills so users will have no use for the legislation. We hope that doesn’t happen ...

Hmmm. I think the bill has already been poisoned. DOA. Too late even for last rites.

The House version of the bill is so burdensome I would much prefer just to rely on fair use, even with all its uncertainty, than to know for certain that the burden for each and every use is so extremely high, and likely very expensive to carry out (probably costing considerably more than reasonable compensation would have cost if there had been an owner to pay it to). The bill seems intentionally designed to discourage use, not to encourage it. (I can hear the "yes!" responses from orphan works legislation opponents.) Since we already have plenty of discouragement in the form of draconian remedies, I can only conclude that the architects of this bill were in fact worried that people might actually proceed with uses of orphan works if there were no bill. Ok. I've got my "horrible cynic" hat on now.

Basically, the House bill appears to take the position that there is likely to be an owner who will turn up, and all the proof that you tried your best to find them has to be assembled, certified, and all the groundwork for the impending litigation laid, ahead of time. If that's not pretty poisonous, I don't know what is. But wait there's more.

If the pre-use litigation-oriented requirements are not, in the abstract, enough of a deterrent, there is the opportunity for the industries themselves to erect barriers to use so high that the burdensome statutory requirements will seem like a walk in the park. They have the privilege of defining the "best practices" that the CO will install as part of what users must follow to get the benefit of using a work that, contrary to rampant fears, no one likely exists who cares about or would object to its use.

This sort of reminds me of what happened to the NIH OA statute the first time around (3 years ago). We ended up with a voluntary request for posting publicly financed research results to PubMed Central, instead of a mandate, in response to fear. The voluntary approach completely failed (surprise!) to fulfill the objectives of the law, and eventually, when it was obvious to everyone, it still took a monumental fight to get a bill through Congress that was not dominated by those who were the most fearful. Copyright industry captains have been wrong a few times before about what they think change will do to their industries.

And this is only round one, as Public Knowledge notes. The House bill (and the relatively more realistic Senate version) is only going to get worse, not better. My advice: if you're waiting for legislation to deal with orphan works, do not hold your breath. You'll expire.

I have taken nearly a week to mull over this case that has been buzzing around the blogosphere, around email and even in real life, and I'm glad I did. I think I see it more clearly now than I did a week ago when the news first hit. I managed with a little time to connect it up with everything else in my life, well, my copyright life.

I guess it was reading Claire Stewart's post at the Northwestern University Library Blog (NUL Copyright: What does the lawsuit against Georgia State mean?) that pushed the last little piece into place. OA.

Yes. OA.

It all started at an AAUP/ARL Scholarly Publishing Symposium in the early 90's. I was lucky to be invited, and I made a speech about Texaco (the case) or something like that. I don't really have a lot of memories from this event (hearing Jean-Claude Guedon speak is one of them, however), but my memory of a conversation with Ann Okerson, now at Yale University, is still very fresh. The lead in must have been about market failure as the driver for fair use and she contrasted L. Ray Patterson's point of view, as expressed in his book, Copyright: A Law of Users' Rights. She talked about it fondly, but she agreed it wasn't the way things were, rather, it was how they ought to be.

Second piece: That idea of "how things ought to be" contrasting with "how they are" is a constant of fair use discussion because fair use is so open to interpretation. It can mean so many things. But we get our "how it is" meanings about fair use from the courts' interpretations. We have to draw that distinction, if we represent real clients, between how it could be or even should be, and how it is.

And that's what I've been doing for years as copyright counsel for the UT System. I'm grateful to have this task. It keeps me grounded. You have to know what your absolutely best arguments are, the law, and policy, but you also have to be realistic about the likelihood of winning those arguments, so your client can be realistic too, and make his or her risk assessment and go forward.

Which brings me to the third piece. Many people have spoken eloquently about why we as a society need to provide educators with a broader scope of fair use than just the "high transactions cost market failure" approach would allow for the kind of copying at issue in the suit against GSU. I rounded them up in an article I blogged at Lifelong learning a year or so ago. See for example, this section on Market Failure, and this one about market dysfunction. I can add Claire's comments to the list. I cannot believe that these arguments were not made on behalf of educational fair use in the cases about classroom and research copies. And they did not win the day. Maybe it was because of the profit aspect of the defendants in all those cases. Maybe the result would be different today with GSU a nonprofit educational institution as the defendant.

But my money is not on that proposition. And that brings me to my 4th piece. Losing in Congress and losing in courts -- happens all the time. Even when you win, you lose. The so-called compromises hashed out between stakeholders in congressional statutory marathon negotiation sessions read like some of the worst contracts I've ever had to review. And this is law for teachers and students to follow. Uh-huh. Right. All we've managed to effect with Congress is a stalemate. Oh, that's no small accomplishment. Keeping things from passing has become the best we can do. Think about that.

Many are optimistic about the string of fair use cases coming out of the "transformative" field lately, and I am too, but I don't think they offer the life saver to digital course materials distribution that others hope for. I don't think courts will go that far.

So, 5th piece: what's left if you really, really, really believe that educators ought to be able to use whatever they need to and want to use in their classrooms without worrying about what it costs or whether it's fair use?

Consumer resistance, or OA.

I don't have to advocate consumer resistance. We can get there without infringing people's copyrights. The very same arguments that Claire makes on behalf of educators and students being able to just read others works even if they can't afford to pay are turning the corner on OA for scholarly publishing. The battle for OA in journals is far from over, but the outcome is pretty clear. Now read anything about OA for the scholarly literature and substitute educational materials and see if you don't agree. It makes perfect sense. The same struggles the industry is going through to figure out how to make the economics of OA work for journals are going to come to monographs next and then why not educational publishing. If journals can figure out how to charge for other things besides digital copies, so can monographs, and monographs are, well, books with longer names. Books can be freely accessible without authorship, editing, peer review and distribution falling into the gutter. Do we know how right this minute? Maybe not. Is it impossible? Absolutely not. Do we need to figure it out? Absolutely. Will we. Absolutely.

Bill Patry draws our attention to a copyright case in the 9th Circuit's Southern District of California that addresses the liability of individuals in their individual capacity for infringement of copyright: The Patry Copyright Blog: State Sovereign Immunity and State Employees. His commentary, and the commentary to which he points at the Stanford Fair Use blog, both make the distinction which can be sort of confusing, that even though sovereign immunity protects individuals acting in their official capacity, when they have acted in a way that is illegal, they are going to get stripped of the character of "acting within official capacity," Basically, you can't be acting officially if you are breaking the law. It can't be the official act of the state to break the law. Isn't logic great?

So, the professor who was hired by his university to create a report takes the rap as the university pleads out (sovereign immunity). Bill and I don't see eye to eye on sovereign immunity (quite naturally as I've represented a state institution for the last 17 years and I'm pretty sensitive to the state's position on this matter), but I guess I do feel rather badly about the result in this case. It would be one thing if the faculty member were sort of rogue, acting on his own, But the university hired him to do this and directed him to make his report like the earlier one (that he is now alleged to have copied). There are all sorts of interesting questions in here about the role of education in risk management, about the level of understanding of copyright law among a university's top administrators, and about individual responsibility to say no to requests that we might question on legal grounds. Gives us all a lot to think about.

I often recommend Bill Patry's copyright blog and I sure hope I haven't worn out my ability to recommend his postings another time, because this one is really, really worth a read: The Patry Copyright Blog: Judge Posner’s “How Judges Think”.

It's a bit abstract, compared to some, and it's long (as Bill's posts usually are). Also, the first part of his review of Judge Posner's book is about things that, while interesting, are not the main focus of my post here. Because near the end, Patry covers Posner's getting at something that I've been trying to express for many years, and I've never managed to say it so effectively as Judge Posner (surprise!). This is one of the most well-known, respected judges sitting on the bench today, who has a publication history someone twice his age (were that possible) would be hard-pressed to match, so of course, he's eloquent.

But more importantly, he knows what he's talking about because he is a judge and he's been one for 27 years and when this pearl comes from him, it doesn't seem to need anything more to give it credibility.

It's the pragmatism thing. He says it right straight out.

The judge is wont to ask himself in such a case what outcome would be the more reasonable, the more sensible, bearing in mind the range of admissible considerations in deciding a case, which include but are not exhausted by statutory language, precedents, and the other conventional materials of judicial decision making, but also including common sense, policy preferences, and often much else besides. (page 207).

Patry continues his explanation of how Judge Posner thinks, referring to a case that Patry himself tried before Judge Posner:

... some, like Judge Posner try to figure out what is the most pragmatic result, guided by the factors he listed in the above quote, and then write an opinion that is straightforward in explaining why the result is the most pragmatic -- as compared to falsely pretending the result was dictated by an external force (e.g., the statute or precedent).

The Ty case is a great example of his approach: his opinion reads like a time-line of his thought processes, the end of which is – “oh yeah, there are these statutory factors in section 107, but they aren’t helpful here.”

It is nice to feel that something as difficult as fair use really does have at its heart, a reasonableness inquiry. Maybe that only punts the ball, after all, as Patry points out, his reasonableness argument in Bill Graham Archives v. Dorling Kindersly failed to carry the day. Reasonable minds can disagree about which result is most reasonable. But at least *that" is the inquiry with fair use, rather than a mechanical checking off of a selection of the facts that can be made to fit our case (whoever we are).

So, as I would argue, if you are ever in a position to try to win a fair use argument, if you aren't addressing why your result is the most reasonable, overall, the best for everyone, you aren't speaking the judge's language.

Well, at least not Judge Posner's language.

Congress reportedly will try to pass orphan works legislation again this session, introducing a bill as early as this week. After its March 13 hearing, at which 6 interested parties presented testimony (including the Register of Copyrights, Marybeth Peters, and representatives of the 2006 bill's most vehement opponents, free-lance photographers), the stage appears set for another try.

Molly Kleinman's take is positive; Tom Richmond's is hostile. Reportedly, the photographers have gotten concessions and are supposedly onboard, but Tom's blog post certainly doesn't suggest that it's a done deal.

I read Marybeth Peters' testimony (see link above) and she talks about some of the changes from the last bill. One that concerns me the most is the idea that the industries will define a reasonable search. I reviewed one such proposed definition, and found it daunting. It was clearly designed with other publishers in mind, given their corporate resources, and their likely intent to profit from the use of the work contributing to their willingness to spend considerable time and money chasing down every rabbit track. This does not seem like a good idea for nonprofit entities making nonprofit uses. As I commented at the time, the proposal suggested that all the rigor of adopting real human orphans should be applied to making even nonprofit uses of abandoned copyrighted works.

Well, let's prepare ourselves. It's either going to work or it's not, but if it doesn't, the problem of orphan works is not going away.

Lolly Gasaway and Richard Rudick, Co-Chairs of the Section 108 Study Group, have issued their report after a lengthy period of deliberation over quite a few really thorny issues. Readers may recall that last May, Lolly was our guest blogger here at Collectanea. Perhaps we can persuade her to write a short note for us about her experience with the Study Group, or her overall thoughts about its work and the next steps.

I have had a chance to skim the report, but not to read it thoroughly, nonetheless, I thought I would make a few initial comments and encourage everyone interested in the development of the role libraries play in a digitally networked world to read this report.

It details not only those items on which the diverse participants in the group could reach consensus, and were willing to make recommendations, but all the issues that they considered but could not agree how to address. Where they had fundamental disagreement, they lay out both the pros and cons of various approaches they considered, of each side's concerns. Thus, it documents process very thoroughly where consensus outcome was not achieved.

Of course there is much to cheer about such an effort. It is hard to even imagine how difficult it must be for all sides to come to consensus, even given all the time in the world, which we never have. On the other hand, I'm sure most of us will find things that worry us. For example, I fear that the recommendations, or at least some of them, will cause Section 108 to follow Section 110(2) into the sunset of usefulness by burdening exercise of the rights it provides with enough restrictions, conditions and exceptions as to make the exceptions functionally useless.

Thankfully, I didn't see an overwhelming amount of this conditioning, excluding and excepting, but we are only at the recommendation stage. I expect that if a bill is introduced, it will look much like the Report recommendations. But after the legislative process is complete, it will look like Section 110(2). If that happens, I am very concerned that what we have now may well, on average, be better for libraries. Perhaps Lolly might comment for us on how that issue was handled in the deliberations. Were participants aware of the tendency to "contractualize" the recommendations (make them like complex contract provisions) and the likely effect of such provisions?

Another aspect of the report that concerns me is a bit harder to express, and maybe there really is nothing that can be done about it. I know the Study Group was aware of it, because they explicitly address it in several places, but this still bothers me. My focus in my graduate work is on the effect of the current evolution of publishing, music and film industry business models on copyright law, policy and practice. I guess I'm worried that things are changing so quickly that there have just got to be many, many assumptions embedded in the recommendations that are going to be shown to be inaccurate in the next few years. This concern is more than can be addressed by being general in a statute, rather than specific (for example, avoiding references to specific technologies that won't be relevant after awhile). It's more about fundamental assumptions, for example, assuming that libraries will be doing the same things in 10 years that they do now, that they'll have basically the same role to play, that the relationship with publishers will be similar. I'm just not so sure about that.

In part this concern stems from an irresistible urge to compare this effort to the much larger effort to "adjust" copyright law for the 21st century that occurred a decade ago, the Digital Millennium Copyright Act. That Act's architects got it so wrong (in some places) at least in part because they could not imagine how different things would be. Maybe we never can.

To the relief of many a high school, college and university administrator, Turnitin's system for helping teachers identify possible cases of plagiarism got a pass from the judge earlier this month. AV v. iParadigms (District Court, Eastern District of Virginia).

If you are not familiar with Turnitin, it's an application that teachers can use to compare their students' papers with Turnitin's database of previously compared papers and papers available from other sources to detect instances of suspicious similarity. Turnitin enables teachers to investigate originality, and at the teacher's option, take action as warranted. Students have to agree to a set of terms and conditions when they submit their papers, among which is a term that relieves Turnitin from any liability for anything resulting from the use of the system (a pretty vanilla disclaimer of liability, actually).

Of interest to me, having been asked on many occasions to opine about the legality of the "archive" feature, that is, the feature that saves a copy of each submitted paper to become a part of the comparative database, the school district in this case had authorized Turnitin to archive its students' papers, and the students had to agree to use the service or get a zero on the assignment requiring it. Thus, the students were not given a real choice about whether to agree to have their papers archived. I always thought that it was important (and so advised) to give the students a choice up front, when they signed up for the class, so that they understood that use of Turnitin was a term of the offering of the class, that one would agree to the terms of the Turnitin user agreement. Students confronted with this choice really have a choice in our higher ed environment anyway, where use of the application is rarely across the board (ie, only some faculty elect to use it). This case tested a tougher proposition, from my perspective: whether a student without a real choice about using the service can agree to the terms of the user agreement (having had to in order to get a grade) but then *modify* those terms by writing on the paper at the time of submission that the student did not authorize archiving. That's what the plaintiffs in this case did, and their attorney argued that Turnitin's archiving of the papers in violation of this attempt to change the user agreement terms infringed the students' copyrights.

No way, says Judge Hilton. (Ok, he didn't really say that. That's what I am saying.)

The court determined that the parties had entered into valid agreements (clickwraps are enforceable agreements), that the limitation on liability was enforceable and that the attempt to modify the terms of the contract failed because the user agreement indicated immediately (in its first line) that use of the service was conditioned upon the acceptance of the terms without modification. A number of other claims and defenses were all rejected by the court, and I'll leave it to the really curious to read the rest of the case, but I do want to note that the court also undertook a fair use analysis.

It should be noted that iParadigms pled fair use as an alternative defense in the event that its contract terms had failed to protect it from liability. Because the court found that the contract did in fact protect iParadigm from liability, it would seem that the fair use analysis was dicta. It was unnecessary for the court to undertake the analysis to dispose of the case. But it did the analysis anyway. Thus, while I would hesitate to cite this analysis, it does give us some insight into how this court views the 4-part test. The analysis leans heavily on recent cases like Perfect 10 v. Google, that compare speculative harms to copyright owners with the enormous public benefit of transformative uses like indexing and come to the entirely unremarkable conclusion that such uses are pretty much exactly what fair use is supposed to be all about. Let's see, Virginia is in which circuit.... the 4th circuit. So we now have a very nice representation among the circuits (9th, 2nd, 4th) of recent fair use analyses that find that massive copying and using in their entirety, even creative works, for new commercial uses that provide significant public benefit, is a fair use 1) when there is no or only speculative market harm to the market for the original (all of the Google search cases so far) and 2) even in the case of a mature market for licensing the works (the Grateful Dead poster case, Bill Graham Archives v. Dorling Kindersly). Lookin' good for creative fair use.

I have heard some folks gripe about these types of cases, that uses involving the Web and indexing and such are not really transformative. Courts don't seem to buy that right now. Maybe it's just that transformative is the only label we have to clearly identify uses we just can't afford to subject to the control of individual copyright owners. There simply are many more uses in this digital era that benefit the public without seriously interfering with incentives to create, uses that need to be free from transaction costs, permission fees, holdouts, etc. I am quite convinced, in fact, that the numbers of uses that really ought to be outside the control of a creator of a work are much larger than even these cases suggest. But, it's expensive to broaden the range of free uses one fair use case at a time. I guess we can thank these 4 students and their attorney for taking one on the chin for the greater good. Or, put another way, the lower courts are doing what Congress seems incapable of doing -- ratcheting down instead of up.

Yahoo! announced today that it will be supporting Semantic Web and microformats to improve search results for structured data (as reported in ReadWrite Web: And Nerds Became Kings: Yahoo! to Announce Semantic Web Support - ReadWriteWeb). The Semantic Web has been a dream of Tim Berners-Lee for a long, long time, and up until now, pretty much way behind schedule because it just seemed, well, too hard. Things are changing.

They always do.

You know how RSS allows you to get feeds from your favorite blogs and other newsy Websites? That functionality is one example of how we are able today to break the offerings on a Webpage up into small parts and send them zipping around the Web. The text is separated from the formatting on our page, the way the text is displayed isn't carried around with it. That enables a snippet of our text, maybe the first paragraph for example, to be displayed by someone, anyone who subscribes to our feed.

Semantic Web potentially micro-bites the content even further -- into little bits that are identified as to precise type: this part is a last name; this part is a first name; this part is a phone number; this part is a set of key words; this part is an abstract, etc. People might tag text down to this level to enable its extraction and manipulation, its readability by computers (see Michael Jensen's article, The New Metrics of Scholarly Authority, about the importance to Authority 3.0 of being computable); its reorganization for other purposes. It gets treated like data rather than information or knowledge (don't let's debate what those things are just now).

What might this mean for copyright policy and practice? Wow, it just sends the mind reeling. I can't begin to imagine the implications, but one thing seems clear: a Semantic Web has the potential to further dramatically reconfigure the relationship between copyright owners and those who wish to access and use their copyrighted works. Implicit in the markup for computer recognition, extraction and manipulation is a license to actually do those things. Atomized text and images, sounds, audio-visuals. Wow. Might a whole new round of fear and loathing be right around the corner? Or will this just add to the steady pressure on copyright owners to open up their works to use and reuse -- if they want attention at all?

I was reading about amateur photographers in Tel Aviv refusing to accept that they couldn't take pictures of a building visible on a public street (see The Patry Copyright Blog: Israeli Flashmobs and Pictures of Works of Architecture), and it reminded me of a couple of summers ago when guards or the sculptor, or someone tried to stop tourists in Chicago from taking pictures of "the bean," this fabulous reflective, monstrously large, bean-shaped sculpture in a public park there. The Internet was plastered with pictures of the bean, despite the assertion of a right that ran counter to common sense. People take pictures of things like the bean. They just do. People frankly can't believe anyone has the right to prevent such a thing. Where is the harm, they wonder.

These are examples of people just saying no to overbroad claims of copyright protection. Check out the photos of Opera Tower as mobbed by photographers, and the bean, in Chicago's Millennium Park (205,000 images). This is one of the risks of passing laws that run counter to common sense and fairly run-of-the-mill human behavior -- increasing disrespect for the law. It is regrettable, but more importantly, it is preventable. Congress needs to stop the bloating of our copyright laws.