©ollectanea

So, where did November go? And Christmas is just around the corner? It is time to say goodbye to our November guest blogger, Peggy Hoon. Peggy, thank you so much for joining us. I hope you enjoyed blogging as much as we enjoyed reading your posts. Feel free to come on over and post again, any time you would like. You are always welcomed.

I didn't invite a guest for December. It's just such a hectic month for most of us. If your schedule is like mine, it will be hard to focus on things like copyright (nah...) Well, I'll do my best to keep us in the loop until January arrives and we settle back down to business.

I wonder if any of our readers has a recommendation for a guest blogger for winter/spring? What kind of folks would you like to hear more from? More lawyers? More librarians? More lawyer librarians? More grad students? Professors? Let me hear from you if you've got ideas about our future guest bloggers. Thanks!

Jon Band has summarized three recent fair use case holdings in an article entitled, Educational Fair Use Today, published by the Association of Research Libraries. He notes that the cases all found fair uses in commercial contexts (artwork, a search engine case involving images, and the use of small copies of posters in a coffee table book) and so strengthen fair use, particularly when fair use is employed in transformative circumstances.

Most importantly, he believes that transformative is taking on a new meaning beyond the idea of changing the nature of the work, like a parody changes the underlying work or scholarly criticism uses another work. Two of the three courts find uses transformative because the defendants "repurposed" the work, that is, they used it in a way that was different from the use intended by the copyright owner. He goes on to suggest that uses in higher education such as exposing students to journal articles that were written for scholars, not students, is arguably repurposing the articles and thus makes a transformative use of them.

Of course he notes that this suggestion might not be accepted by publishers. On this we agree. I can imagine their reaction -- If using journal articles in classroom instruction is a transformative fair use, I suppose we could stop licensing databases of articles for our students and just license them for our much smaller numbers of faculty members, at a tremendous savings. At UT that would subtract about 45,000 full time equivalents from our user base. Publishers would raise an eyebrow, to say the least.

But, even beyond the argument's practical problems, I would caution that it may put the cart before the horse in assuming that courts reached the conclusion that a use was fair on the basis of its being transformative.

In particular, in the search engine cases, it appears to me that transformative is used to explain decisions, not to decide them. Consider Perfect 10 -- it seems to me that the reason the court found the use of the little naked lady pictures fair was because to not do so would jeopardize an amazingly efficient publicly useful facility that makes sense of the billions of documents, images, and other works on the Internet. That's a compelling argument for finding Google's use fair. So the court needs to explain it in terms of the four factors. No problem...

The situation Band describes involving the use of journal articles by students in the classroom does not, in my opinion, offer such a compelling argument, (in other words, a judge is not likely to feel compelled to accept this as a fair use), and if the judge is not compelled to find the use fair, he will have no need to explain the use in terms of its being transformative. So it won't be transformative. The fair use test is just so malleable...

Jon does suggest other uses that might be transformative, uses that more creatively embed an existing work in a new context, rather than just reproduce it for reading by thousands of students. These offer more to think about in terms of pushing the boundaries of fair use back to a healthier position, but at a school as large as mine, the implications for decision-making of a process requiring such subtle analyses are profound.

I think fair use cases make the most sense if you look at them from the perspective of which litigant had/has compelling need on their side (I am such a pragmatist). Creative uses often make for very compelling cases (except for Koon's first case, Rogers v. Koons, and the entire music industry). So do scholarly criticism and commentary (the recent Shloss case that settled). So do search engine cases. But schools refusing to license databases of articles, well I guess it could happen, but I wouldn't put my money on it.

Jon and I don't disagree on much, and I very much appreciate his doing us the big favor of bringing these three cases together in one article, emphasizing the role that the courts are playing to strengthen fair use in creative contexts. This is tremendously good news and I am very happy to see this development. Where we in higher ed take these arguments remains to be seen. But we should wholeheartedly celebrate the rolling back of the relentless shrinking that seemed to be the future for fair use just a few years ago. I look forward to further developments in this area.

Not too much news yet, but Stanford's Fair Use Project has signed on as co-counsel in a case that pits fan site collected information, in published form, against the copyright owners of the Harry Potter series: Fair Use Project to Represent RDR Books in Harry Potter Lexicon Dispute | Stanford Center for Internet and Society [beta site]. There's a quote from and a link to the press release on the Stanford site.

Interesting points: the fan site was started by a librarian!

This is going to be a very interesting case. It will either join the cases Jon Band grouped together as broadening the scope of fair use for creative and transformative works, about which I blogged earlier this week, or it will throw the progression a curve.

As more facts come out about the book (A Harry Potter Lexicon) and the way counsel plans to defend, there'll be more to talk about (we'll know more about which cases are relevant), but at the moment, one case is sticking in my memory, a case that did not go well for fair use in the context of the use of information about a copyrighted work. It was a case about the tv series, Seinfeld (Castle Rock Entertainment, Inc. vs. Carol Publishing Group, Inc.). The defendant had created a sort of trivia quiz book about the show's plots, themes, particular series events, etc. (the Seinfeld Aptitude Test). The court could have characterized these things as *facts* -- it is a fact that in the episode called [whatever], Seinfeld said [such and so]. But the court did not treat those events as facts. Rather, it treated them as the creative property of the copyright owners, so borrowing them, or using them, was an infringement. The defense of fair use did not apply, however, because the court concluded that the trivia quiz approach was not transformative.

Ivan Hoffman did a very nice comparison of the fair use arguments in the Seinfeld case and The Wind Done Gone case (Suntrust Bank vs. Houghton Mifflin -- the story of Gone With the Wind told from the slave's perspective), two fair use cases that went in opposite directions, on the issue of transformativeness.

Both of those cases, and this one, can be viewed through the lens I spoke about yesterday (the post about Jon Band's analysis of recent fair use cases) -- where transformative is the word used to explain the court's decision, but not used really to decide the case. The decisions, I suggested, are more of a "stand back and think about how this case *should* go" process. Read especially the Seinfeld court's description of the back cover of the book at issue (in Hoffman's analysis). It reveals quite a bit less of a critical commentary motivation than is apparent from the text itself of The Wind Done Gone. A court might think long and hard about whether we *need* to have works in the nature of The Wind Done Gone, and therefor must preserve the right to create them by including them within the scope of fair use. It probably would not be deeply troubled to dismiss the Seinfeld trivia quiz book. How will a court feel about the Harry Potter Lexicon?

Well, it’s official: The University of Texas at Austin Libraries has launched our documentary blog for our public domain and orphan works project, free*the*books. We invite you to view and post comments! Our new blog is focused on our research about international copyright laws that control the use and distribution of digitized books online.

As a Google Library Partner, UT Libraries will digitize over a million books from its rich collections within the next six years. Digitization of 800,000 books in the Benson Latin American Collection began in June of this year followed by this companion project to develop an authoritative process for determining the copyright status of books published in various Latin American countries and to identify foreign works in the public domain.

We have found little guidance to help us reliably identify which of our books are already in the public domain so we are piloting a project to develop new tools for ourselves and for anyone who wants to tackle these difficult public domain problems. We will document our process, our progress and our results on the blog’s pages along with links to web resources we find useful.

The initial pages of the blog include online resources to determine critical author birth and death data, prototypes of legal evidence tables and draft guidelines by which books, wherever published, may be determined to be in the public domain

We will be adding features, more pages and new posts to the blog on a regular basis and from time to time will also have guest contributors to add variety and fresh perspectives. We invite suggestions and comments from other Google Library Partners and anyone undertaking similar or related projects.

Email us at freethebooks@gmail.com or IM us at our Meebo widget in the sidebar of the blog. We are here; we are building an evidence base and we are looking for virtual partners!

Peter Suber has a very interesting write-up on a new Google initiative, OA knols from Google. For a more thorough explanation visit Google's blog where the subject is set out in more detail. What I found interesting about Suber's commentary was that he noted right away the obvious potential competition with Wikipedia and other forms of collective knowledge, but he also realizes that what Google is proposing has the potential to compete with open access as it is currently conceived, that is, as connected to institutional and discipline-specific repositories.

Siva Vaidhyanathan has also noticed the announcement, and will be commenting on other aspects of the new Google initiative in keeping with his focus.

The idea of Google hosting a collection of pieces written by experts on subjects does drift pretty far afield from advertising and searching, doesn't it? What's up with this? What do *you* think?

I discovered a couple of papers recently that focused my attention on the public domain, as what's left when copyright gets through with "protecting" a work from, from, well, from what I am not sure any longer, but Bill Patry's piece seemed to pull things together in a way that compelled me to write about it all. In The Patry Copyright Blog: The Global Garrotting of the Public Domain, Patry recounts how we got where we are today, with respect to the length of our terms, and how, in Korea, the longer terms are actually threatening to harm the Korean publishing industry (which translates many foreign language works into Korean). As always, Patry's posts are eloquent and powerful, so I recommend you read them for yourself.

But I also want to draw you attention to two papers published recently on the subject of the one-way ratchet, the continual lengthening of the term, the continual heightening of the walls of protection: Rufus Pollock's, Forever Minus a Day? Some Theory and Empirics of Optimal Copyright, and Neil Netanel's, Why has Copyright Expanded? Analysis and Critique.

Both of these articles raise the question in my mind of whether the assumption that the ratchet can only go one way is really accurate. If we begin to see more evidence such as Pollock's, empirical evidence that the length of term is counter-productive, that a copyright can be so strong that it harms productivity, why couldn't we assume that at some point, law makers would have to respond and not only stop piling on the protection, but actually scale it back?

If law makers cannot respond, then our law truly will become irrelevant. It would be like legislating that balls thrown in the air must not come down. You can legislate all you want in the face of the fact of gravity, but it won't change the laws of gravity. People will just ignore the silly law, right? Why should we think that copyright law should be any different, that we could legislate against economic realities, flout those realities, and still be respectable?

... Abandoning DRM anyway. Warner's Entire Digital Music Catalog For Sale on Amazon as MP3s | Listening Post from Wired.com. With this announcement on Wired news, we learn that 3 of the 4 majors have now concluded that sales of mp3s (unprotected tracks) will likely expand the digital music business more effectively than DRMd tracks. Duh. Sony/BMG is still not so sure. What does it take?

At the beginning of the year there were many signs of this potential. I blogged about it numerous times beginning on January 27, on February 6, April 2 (a day to remember, I noted) and sporadically over the rest of the year (pull up the DRM category from the sidebar to see these posts cumulated). It turned out to be just as big a watershed year as I had optimistically hoped.

So, what's in store for 2008? I feel encouraged by a successful prediction. Maybe I'm turning into a seer. I do have a crystal ball -- it belonged to my Irish gypsy grandmother, Dorothea Genevieve. But I think it's easier to read the news than a crystal ball. This stuff was way overdue. What else is overdue?

Well, I'm excited about the possibility of another watershed year. What about you? What do you think we'll see in the copyright world in 2008? Let's be realistic now: no saying that Congress will roll back the absurd CTEA or that MPAA will endorse such a roll-back (which is the only way it would happen), or that the US Trade Rep will stop pressuring Canada to adopt our own failed DRM strategies. But putting the really unlikely aside, what do you think we're likely to see in 2008? Come on; read some tea leaves; tell us what you think!