©ollectanea

The Wall Street Journal is running an article today, "Google, Others Contest Copyright Warnings - WSJ.com," that describes efforts to reign in the absolute statements and warnings we often see content owners use to describe their rights. From the ubiquitous baseball and football absolute prohibitions to publishers' statements that no part of a work may be copied in any form, these notices have always been problematic in that they misstate the more nuanced contours of copyright owners' rights. But never before have so many heavy-weights complained about it. I see this as more evidence of a growing awareness that fair use has an important role to play in copyright's balance of interests. It's not just about academics and book reviews. It's about whether we're going to have a culture of paying for every single little thing that we can do with a creative work, or whether use rights will be more generously defined and enforced. Absolute warnings, like digital locks, discourage uses, including creative uses. It will be interesting to see whether this Industry Association will be better able to make the point than academe typically is. On the other hand, perhaps it is the success of initiatives like the Documentary Filmmakers' Statement of Best Practices in Fair Use that have brought us to the point where others are eyeing the permission culture with the kind of scrutiny it needs.

I am happy to announce that we have a guest blogger for August. Tobe Liebert is a friend of mine who, until recently, worked at the Tarlton Law Library at the University of Texas at Austin, where he was assistant director for collection development and taught an advanced legal research class in intellectual property. While at Tarlton, he created the "Current Copyright Literature" service, which recently received an award from the American Association of Law Libraries. Tobe has an undergraduate degree in history from Centre College of Kentucky, a law degree from the University of Kentucky and a Masters of Library Science from Indiana University at Bloomington. He currently lives in Chicago. He's taking advantage of his move to spend summer with his two girls. This sounds to me like the perfect way to spend a summer. I'm so pleased that he can join us, so please welcome Tobe!

To follow up on Georgia's post yesterday about the Computer & Communication Industry Association's FTC complaint re "fair use," the CCIA has posted a copy of the full complaint. It is worth a look I believe, at least to see how technology giants such as Google and Microsoft have committed themselves on paper to the principles of fair use. The complaint contains examples of what the CCIA regards as improper "copyright warnings" used by media and print content providers, as well as what the CCIA regards as more accurate statements on fair use rights, such as the language used in the Nimmer copyright treatise.

The Library Copyright Alliance also submitted a letter in support of the CCIA complaint. The LCA is composed of the American Library Association, the American Association of Law Libraries, ARL, the Medical Library Association and the Special Libraries Association. So, it is good to see the major representatives of the profession join in the fray.

While I have no idea how the FTC will view the CCIA complaint, it is at least generating considerable media attention which should heighten awareness of the fair use concept in the broader public.

The National Archives and Records Administration (NARA) recently announced a deal that would permit Amazon to copy and then sell historic film and videotape from its vast documentary and newsreel collections. A Washington Post article gives the details of this "non-exclusive" agreement. This is troubling to a few folks out there who inherently distrust any venture that would allow a private company to make a profit from public domain material.

Personally, I welcome this sort of arrangement. NARA was careful to note that the arrangement is "non-exclusive," thus the public should be ensured the same access to this material that previously existed. My one experience with NARA with non-print material highlights the desirability of bringing third parties into the mix, even if there is a cost involved. A professor once asked me to get a copy of a Supreme Court oral argument from the 1960's. NARA does indeed keep such things, but does not provide copies of the tapes or transcripts. You are instead referred to a list of local vendors in the DC area who will then, for a fee, go to NARA and made a copy of the tape for you. All in all, it was an awkward process and I ended up paying for this public domain material anyway. So, I can live with Amazon.

An interesting hypothetical could arise if someone makes copies of a NARA film purchased through Amazon, and then either tries to resell these or otherwise makes them available without Amazon's consent. Would Amazon object? Would it have any basis to object?

University of Michigan is making a 5 page description of "Google Book Search Tips available on their website. Pretty amazing on several levels.

The first thing that struck me was the subject of the book search UMich uses to illustrate book search: texas longhorns. Of course the results are about Texas also, but it's rich and famous Texans and the fabulous fortunes they've won and lost. Hmmm.

Aside from that chuckle, at least for me, the document is really helpful as it shows in detail what features the book search provides, how to use it to best advantage, and if you're at UMich, how to double-check your results against Michigan's catalog, Mirlyn. I want to say right now that I think this is a really good thing. I've heard so many people say things that indicate that there's a lot of misunderstanding about what Google Book Search does and how it works. So clearly, this is needed and kudos to UMich for doing it, but...

The tips then go on to discuss searching for journal titles. Here it gets really complicated and this is where I suspect a lot of eyes will glaze over. Mine did. This explanation encapsulates a classic library search problem. If searching a library resource through a library database or catalog is so complicated that it takes 5 pages to explain how to do it effectively, well, you know you're going to lose a whole lot of your audience. I know, I know, you're thinking, "but there's so much good information you can find through these complex, complicated, difficult search interfaces that take 5 pages to explain." UT is rumoured to have 28 pages of explanation for how to use our new search interface. Sorry my alma mater, and beloved employer, but I've never confirmed this rumour. It's probably one of those tall Texas tales, but I can't even go look at something that might take that long to explain. I know it's not our fault. It's the product we have, one of the best we can get. But, well, we know this is a problem, don't we?

So, how could it be that Google, known for ease of use, practically identified with quick, simple, uncluttered search with amazing success (success being defined as "good enough for government work" -- ironic isn't it?), could have a search feature, now that it's gotten into books, that takes 5 pages to explain?

I always sigh when I think about how cool Google-think is, the culture of creativity and get it done, all that, and how I wish for us a little more of that culture. Now they are becoming more like us (even if only in a small way)? Is this really a good move? Are books and journals just too complicated to search simply?

William W. Fisher and William McGeveran from the Berkman Center for Internet and Society have just posted a most interesting “white paper” on SSRN. The paper, The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age, addresses in a very concrete way the many barriers faced by educators when considering the use of digital resources.

The paper is the product of a grant from the Andrew W. Mellon Foundation, which allowed the authors to conduct research, interviews, workshops and case studies to explore the law and actual practices of educators attempting to use digital resources in innovative ways. The paper, not surprisingly, concludes that there are very real obstacles to such innovation. The authors identify the following as the primary hurdles:

“Unclear or inadequate copyright law relating to crucial provisions such as fair use and educational use;
Extensive adoption of ‘digital rights management’ technology to lock up content;
Practical difficulties obtaining rights to use content when licenses are necessary;
Undue caution by gatekeepers such as publishers or educational administrators.”

Very interesting reading and a great summary of the existing law on the topic.

A little off-topic in that there's not a copyright angle in here anywhere, but hoping that our audience is filled with bibliobloggers, I'm passing Meredith Farkas' Survey of the Biblioblogosphere Update | Information Wants To Be Free note on to you. She's conducting a survey of library bloggers as a follow-up to one she did 2 years ago. It only takes a few minutes to complete the survey. She'll be publishing one or more articles based on her analysis of the data, later on. So go check it out!

I've just finished reading Pam Samuelson's initial thoughts on overhauling copyright law, linked from Boing Boing, Boing Boing: Proposal to reboot and de-cruft US Copyright Law. This is a very good framework document, easy to read (sort of like the law she's suggesting we need), and very thoughtful. If anyone could pull together the kind of massive project she's talking about, Pam could.

Still, she is very realistic about the likelihood that actual legislative reform would result from the effort. She knows it's highly unlikely at least for 10 years out and that, once started, it would take another couple of decades to complete. She sees a lot of other advantages to her effort though, even if we still are stuck with our bloated 1976 Act, but I'm not so sure how realistic they are.

What she doesn't give voice to is the pessimism I sometimes feel about the likelihood of the law's becoming so irrelevant that perhaps sooner than the next 2 decades, neither copyright owners nor users will be paying much attention to it. We will all have opted out of it to a large degree -- users by ignoring it; owners by licensing and or drm'ing around it. Those directions don't sound so good, but even a best case scenario could see people having opted out by turning to other ways to make a living off creative works (sort of what John Perry Barlow predicted almost 14 years ago). The signs that this strategy is increasingly employed are popping up here and there. Still, it's like the "innovator's dilemma." Only small potatoes at first, then gradually, the alternative business models begin to improve, pick up steam, and one day, they overtake the old ways of doing things, those industry giants who couldn't see the magic in the new ideas because there wasn't enough money in them, or their current best customers weren't interested. But for the existence of the state-granted monopoly that is copyright, in fact, the tide for the creative industries would have turned long ago. Copyright has worked to make creative industries innovation-proof to a much larger degree than other industries. Perhaps to their detriment ultimately. More certainly to the detriment of the public generally.

There are a couple of new efforts to place caselaw on publicly-accessible websites and challenge the "duopoloy" of Lexis and Westlaw. This article explains just what Tim Wu (a Columbia law professor) and Carl Malamud (public interest crusader) are up to now with two new websites, AltLaw and public.resource.org. AltLaw has placed the past "10 to 15" years worth of U.S. Supreme Court and U.S. Court of Appeals cases online, and made them keyword searchable. Certainly nothing infringing here, as these opinions seem to have been collected directly from the courts. In a more provocative more, Carl Malamud has taken the step of scanning a Thomson/West microfiche set of federal cases from the 1800's. Of course, because of the age of the cases, no copyright issue arises, but in a letter to Thomson/West, Mr. Malamud declares his intention to copy volumes of the Federal Reporter, Federal Supplement and Federal Appendix, and place the "public domain" portions online. Thomson/West will undoubtedly be watching this one closely, as it has a history of zealously protecting its interests in its court reporters.

Mark Cooper has posted a short research note, Music Downloads - A Victory for Consumers and Artists at the Stanford Center for Internet and Society. It refers to music industry data to make the case for the victory it describes. Of course, the music industry would probably draw other conclusions from the same data. But it seems fairly clear where the trajectory is going, and that copyright can indeed play less of a role in the future than the industry thought it had to. In other words, controlling copies isn't as critical to making a living as a musician who wants to sell recordings as the industry believed.

Cooper points out that we're not through yet; this is just a milestone he reports, but again, the direction seems pretty clear.

I was directed to the site, from Open Access News, Peter Suber's running commentary on all things to do with, well, open access. This particular post focused on copyright, but in the context of increasing populations that include more and more people who are willing to write without making it their living: More Authors, Less Copyright. So, I visited. It was a blog called The Technology Liberation Front with several authors of whom I had heard, but many more that were new to me. Tom Bell was the author of this particular post. Anyway, the focus of the blog is federal Interent policy, whatever that touches -- certainly copyright, but also a host of other issues that we don't talk about that much here. I recommend you pay it a visit if you're interested in the broader issues of Net policy.

YouTube seals UK music royalty deal -- a short quote:

The agreement to license 10m pieces of music to YouTube - in exchange for a flat fee which has not been disclosed - is the first of its kind, said Steve Porter, chief executive of the MCPS-PRS Alliance.

This has been awhile coming, but many scholars and organizations like Electronic Frontier Foundation have been advocating it for years. In fact, EFF has just published a report on 4 years of RIAA lawsuits against consumers (predictably unsuccessful if the goal were to reduce p2p usage or stem the tide of consumer rejection of the recording industry's business model recalcitrance) in which they, again, suggest that there's another way. For a look back at some of the proponents of alternatives such as this YouTube deal, see, for example, the EFF Report, Neil Netanel's NUL proposal, and Terry Fisher's book, Promises to Keep.

At the heart of all of these proposals is the simple idea that trying to count copies, control copies, and pay for copies in an age when copies are ubiquitous is, well, it's crazy. P2p and the host of other ways people make and distribute copies can be taken as a given and we can still find ways to compensate copyright owners. In fact, these proposals argue more or less that we have to find other ways. The UK-YouTube deal might show the way.