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A personal injury lawyer has named Creative Commons in a lawsuit, charging that its license that permits commercial uses fails to adequately specify that the license does not entitle uses that might violate other laws, such as those protecting privacy (in other words, that one might not acquire all the rights one needs for commercial exploitation through the CC license that permits it): Creative Commons on the Firing Line at madisonian.net: a weblog about law, technology, and society. It will be interesting to see how this unfolds. CC licenses are extremely important to the usability of materials on the Web.

September has flown by and it's time to say goodbye to Carlos. Thanks for contributing your insights to our discussion! Carlos regularly blogs at Copy this blog, so we can continue to follow him there. Also, Carlos, if the mood strikes you, you can always contribute here in the future. Thanks again!

Thanks, Georgia! I'll take advantage of that invitation by making a short post now. Tim Wu and others from Columbia University have apparently been working on a useful Web site for creators- Keep Your Copyrights. It provides information about copyright for different types of creators (writers, photographers, etc.). Even better (in my opinion), the site provides several examples of publisher contracts and rates them as "creator friendly," "could be worse," "creator unfriendly," and "incredibly overreaching" (with associated claw icon).

Peter Suber, Open Access News reports that the EU has just provided 1M euros in funding for a project to explore issues related to the public domain in a digital age. One million euros! That is a lot of money.
Works in the public domain enjoy much attention these days because of the new opportunities that digital networks offer us to draw upon this public store of knowledge. As a result, problems with accessing and using this public resource that seemed tolerable in the past now seem glaringly unacceptable: a term that lasts as much as or more than 100 years for most works, even works that have so little economic value that their owners have not bothered to keep up with the works or make them available commercially (that would be almost all protected works...); we lack efficient ways to make copyright determinations for U.S. works that required renewal; the consequences for an error regarding such determinations can be catastrophic (statutory damages for infringement).
These and many other issues are prompting a number of efforts to work out technical solutions (for example, work flows for determining copyright status) and, as illustrated by the EU project, to assess the direction our copyright laws should take to encourage a fuller use of these materials without undermining the incentive the laws provide to authors, or the rights to integrity and attribution more clearly embedded in European and Latin American copyright laws (moral rights).
As a Google Book Search Library Partner, the University of Texas at Austin shares concern about the public's ability to make full use of public domain works, in particular those that have been digitized in our Benson Latin American Collection. We recently launched a public domain project focusing on the work flow to identify authors of Benson collection items whose works are in the public domain. At first we viewed the project in terms of improving access to the works themselves, but as we have gotten into the details of devising a process, it seems clear that the process itself has the greater value. We are concentrating on 3 or 4 countries now, even though the Benson collection has volumes from many more countries. We expect that by carefully documenting our process, making it public on a Website and commenting on aspects of it through a project blog, and collaborating with other Google partners and seeking input from others who are tackling similar projects, we will be able to add to the store of knowledge about how to improve access to not only our own books, but those of many other libraries (and even those belonging to individuals -- check out Siva's reference to the Open Library Project).
A fellow graduate student at UT Austin's School of Information, Maria Gonzalez, is doing the lion's share of the work to create the work flow and collect the data that will document both our process and the status of each work we analyze. We are very excited about the project and I hope to be able to announce the launch of the project Website and blog soon.

Listening to NPR last week, I caught a story about a new iPhone lawsuit. Some enterprising types filed a claim that the exclusve deal between Apple and AT&T - you can only get iPhone service if you subscribe to an AT&T service plan - violates antitrust laws, because it illegally ties a product (the way-cool phone) to a service. In the past, special deals like that were not that uncommon or necessarily unfair; except now there's a DMCA catch - rules emanating from the Section 1201 proceedings concluded by the Librarian of Congress last November.

Turns out the way Apple and AT&T enforce the exclusivity is via a special coded card inserted into the phone. Phone owners are prohibited from bypassing the card's restrictions, which in copyright parlance are "technological measures" designed to "control access to a work" (the computer programs that run the phone. Not surprisingly, there are plenty of techno-fixes to undo the limit, but Apple is playing hardball and deactivating phones that break the lock.

While Apple-AT&T's goal of exclusivity is technologically enforceable, last year, the Librarian of Congress, following orders from Congress to conduct a review of how the anti-circumvention rule in Section 1201 was impacting fair use, concluded that people who own their own cellphones should be able to migrate to any carrier of their choice with their own phone.

Does the Apple-AT&T deal run afoul of this DMCA exception? The stakes are pretty high. With over 1 million people forking out $400-600 to buy the iPhone, and with billions of dollars of cellphone services at stake, could the DMCA be a wrinkle in the double A's plan? The issue has international repercussions because Apple is forming pacts with exclusive carriers around the world. So if you are traveling with an iPhone and want to stay connected through any carrier whose wireless service could accept the iPhone, the key issue is can you? This litigation may provide an answer to that billion dollar question. And as the case gains in notoriety, it will alert other cellphone owners to their right to take a phone they own (perhaps after their initial service contract with a carrier concludes) and if they are dissatisfied with their cellphone provider, to switch. Of course, there may be some cancellation fee hidden in the contract provision that complicates the change, but that, too, could be in play. If it turns out that cellphone owners can be liberated from a poor service provider, they could have the DMCA to thank.

So, Apple has lowered the price of its DRM-free tunes to .99: Apple lowers price of DRM-free iTunes songs - Digital Life - MSNBC.com, and *not* in response to competition from competitors such as Walmart and Amazon that sell DRM-free tunes for even less than .99 (uh-huh). So where does that leave DRM-burdened tunes?

I did note a couple of days ago that DRM-free doesn't mean the same thing as downloaded from p2p or ripped from your own CD -- there is a license when you buy a DRM-free tune and it allows copying for personal use, but not for sharing. This story at the Seattle Times contains excerpts from both the Apple license and Amazon's license.

So the licenses say you can't share. This should come as no surprise. Honestly, I don't think the record companies need to say this, but they think they need to say this, and it's probably the only way that they could be persuaded to step into this arena at all. Ultimately, if they learn (as I think they will) that digital without DRM sells well, eventually they'll also learn that sharing need not be the death of music. Baby steps. At least they are walking now instead of barring the door and resisting all attempts to get them to join their customers in the digital world.

And what does this have to do with mass digitization projects? I have just begun to write a paper at Mass Digitization ~ changing copyright law and policy in a CommentPress blog that allows commentary paragraph by paragraph (so *you* are invited to come over and participate), and the subject of the paper is the effect of mass digitization projects on copyright law and policy. Apple, DRM-free music and the Creative Commons (among others) are all part of the story of why mass digitization projects are actually not having much of an effect at all! Google provides a notable exception, but for the most part, business models are evolving forms that tend to place copyright further into the background, behind contracts, as noted above, and more positively, behind other ways of generating revenues than controlling, counting and paying for copies. And that's what copyright law is about, or at least, that has been the primary way copyright owners exercised their exclusive rights for the last 200 years. If control over copies becomes irrelevant, does copyright law become irrelevant? That is a very interesting question. I'll be exploring it over the next 6 weeks, and invite you to explore it with me!

So says Andy Oram at O'Reilly Radar, Music industry association recommends flat-rate file sharing. He's talking about a rumored proposal by the Danish equivalent of the RIAA and MPAA combined, that is, the International Federation of Phonogram and Videogram Producers, to allow unlimited file-sharing for a monthly fee spread across all users of Internet Service Providers.

This idea is not new, of course. Neil Netanel wrote a proposal several years ago calling for the NUL (Noncommercial Use Levy), and outlining all the potential problems with it. Terry Fisher wrote an entire book on the subject of how to fund the music industry without charging by the song/album, Promises to Keep. But this is the first time that an industry organization has seriously (or at least is reported to have seriously) accepted that this might be a better system than what we have now.

Oram's short post includes several other observations about DRM, competition and the differences between how the European Union and the U.S. deal with both. Good read.

A consortium of publishers announced this week that it had agreed upon a safe harbor for users of orphan works. The press release was reported widely (see, for example, the Law Librarian's Blog). Although the press release did not include a link to the actual safe harbor rules, they were easy to find on the Websites of the participating publishers. I read them and thought to myself as I did, that they were similar in some ways to the legislation that failed to pass last year here in the U.S. They were much simpler overall, leaving out many of the refinements that the bill had, such as rules for nonprofits that allowed take-down in lieu of payment of a royalty and continued use. After all, these publishers are not proposing law, so they don't have to consider the needs of all stakeholders. What is it exactly that they are proposing, or in fact, is this a proposal at all, or a done deal with users of their works?

These publishers are pursuing a strategy that is becoming more common these days. Rather than attempt to amend copyright law to address the horrible situation we have gotten ourselves into with our century-long terms, broad and deep rights, narrowly tailored (in some cases to the point of uselessness) exemptions, no easy way to opt out of it all, or to find owners, they advocate "letting the market take care of it," one publisher at a time. It might sound daunting, especially to someone who wants to use orphan works (think of all the questions you have to ask yourself about all the different publishers' different standards, and which publishers have no agreements with "the public" at all, etc.), but this is more or less the strategy Lessig pursued when he created the Creative Commons after he recognized that there would never be a legislative or court-imposed resolution to the problems created by repeated lengthening of the copyright term. Both of these actions (Lessig's and the publishers') evidence a recognition that relying on lawmakers and courts to "fix" the problems with copyright is not going to work in some cases. So we turn to contract instead. Lessig might have thought that fixing outrageously long terms and the over-protective scope of copyright, one creator at a time, would be a daunting task, but it was the only thing that showed any promise at all of ever working. And it has worked -- quite well. To be fair, I don't think he's given up entirely on law, but, then again, perhaps he has.

Anyway, for these publishers, it's a plan. Their deal goes something like this: "If you use a work that you think is an orphan, but it turns out the work belongs to one of us and we figure that out, we promise not to take your first born child; rather, we'll just charge you what we would have charged you if you'd come to us in the first place. In return for this forbearance on our parts, we expect that you'll diligently search for us, and here's what we think a diligent search includes:

*** in virtually all cases searches and reviews must be conducted of these kinds of resources identified generically as:

• Published indexes of published material relevant for the publication type and subject matter; • Indexes and catalogs from library holdings and collections; • Sources that identify changes in ownership of publishing houses and publications (see below comment on imprints) including from local reprographic rights organizations; • Biographical resources for authors; • Searches of recent relevant literature to determine if the citation to the underlying work has been updated by other users or authors; • Relevant business or personal directories or search engine searches of businesses or persons; and • Sources on the history of relevant publishing houses or scientific, technical or medical disciplines.

Additionally, where the user can identify a prior publisher that appears to be out of business, the list of imprints available from this [link] should be consulted immediately prior to each use.

The [link] referenced above is not a live link, but it is reported to be "a list of journal publisher imprints that the associations have compiled."

So what are we to make of this deal we're being offered (and the strategy in general)? I must assume that the publishers know what they are talking about in their bulleted list of things we have to do, so arguably publishers will not have a difficult time figuring out what a reasonable search involves. But me? I am clueless. The only thing I recognize in the long list is the library catalog (but which catalog?). I'm sure the publishers all sat around together and agreed that they could handle this. I wonder if they had someone like me at their table? Or librarians. I asked my friend, Lexie (a librarian) if she knew what the bullets were about. She hasn't gotten back to me yet, but she will.

In the meantime, I invite you to think about what these requirements mean. Examples would be helpful. I'll try to suspend judgment until I've gotten a better idea of what's involved here, but I'm pretty sure this "reasonably diligent" search requirement is not going to light a fire under very many potential users of orphan works. Because, it's not just the "what we have to do" part of the bargain that looks like it might not be such a good deal, but the other side, the "and here's what we'll give you in return" part isn't looking so hot either.

For commercial uses, the reasonable royalty is probably fine. But for nonprofit libraries, archives, museums, etc., no. If we did our reasonable search and couldn't find you, and you surface at some point, we need to be able to oblige your desire to send your work back into the dark for you, but not to pay you.

The other problem I mentioned earlier is that we now know what a reasonable search looks like to these guys:

American Chemical Society
American Institute of Physics
BMJ Publishing Group Ltd
Börsenverein des Deutschen Buchhandels e.V.
Elsevier
Institute of Physics
John Wiley & Sons (including Blackwell)
Oxford University Press journals
Portland Press Limited
Royal Society of Chemistry
SAGE Publications
Springer Science+Business Media
Taylor & Francis

I wonder which other publishers are going to sign on; which ones will say nothing; which ones will come up with different standards. And how that landscape will or *will not* encourage the responsible use of orphan works.

Well, that's it for now. We all need to think about this. Orphan works are one of the biggest challenges we face today. These are works that are destined never to see the light of digital day unless we find a way to get them online while making reasonable efforts to protect the interests of their owners. The time when obscurity was the only option for non-economically viable works is over. We need to find ways to get on with it. Are these publishers on to something, or are they living in a dream world where all potential users have the kinds of knowledge and resources they do to dig deeply into the history of everyone who ever wrote something that's orphaned today? My really cynical side thinks that maybe that's the idea -- only other publishers will be able to take advantage of this deal, which would make it amount to no more than professional courtesy.

We are very lucky to have as our guest blogger this month, Peggy Hoon, librarian lawyer from North Carolina State University. I've been privileged to work with Peggy on a number of task forces; we have shared the podium for panel discussions; and always enjoyed each other's company at Nacua gatherings (Nacua is our National Association of College and University Attorneys). Peggy has also been very active with the ARL in developing a series of copyright education initiatives, such as Know Your Copyrights. I am sure you will enjoy hearing Peggy's take on events as they unfold this month. Welcome, Peggy!