©ollectanea

I read the story of United States v. Chalupnik, that's right, a criminal prosecution for misdemeanor copyright infringement, for a dumpster diver who came up with thrown away, by their owner, CDs and who was prosecuted for selling them. Selling trashed CDs. OMG. Patry is appalled. So am I. Here's his retelling of the tale: The Patry Copyright Blog: The Crime of Selling Abandoned Copies.

The thing that so shocks Patry is that there is actual copyright infringement here, the necessary finding for the in depth discussion of how to measure the harm to the copyright owner (most of the discussion in the case is about the proper measurement of harm). Unlike most personal property, copyrights apparently can't be thrown away. The right to distribute to the public, even a copy that has been legally thrown in the dumpster, still entitles the copyright owner to damages if someone retrieves the owner's trashed disk and sells it.

This elevation of copyrights to the exalted pedestal they apparently stand upon is out of line with my sense of justice. This case reminds me of one of the stories Lessig told in Free Culture, the one about the relative legal statuses of handguns and circumvention equipment (p. 160):

The obvious point of Conrad’s cartoon is the weirdness of a world where guns are legal, despite the harm they can do, while VCRs (and circumvention technologies) are illegal. Flash: No one ever died from copyright circumvention. Yet the law bans circumvention technologies absolutely, despite the potential that they might do some good, but permits guns, despite the obvious and tragic harm they do.

If you want to see Conrad's cartoon, follow the link above to Lessig's book and the page number, but of course, if you haven't read this book, I highly recommend it. It's a real eye-opener.

There was a fair use symposium held at Columbia Law School last Friday. Rebecca Tushnet posted her notes from 3 of the events: Paul Goldstein's keynote (43(B)log: Paul Goldstein on copyright in context), Panel 2, which looked at the question of how the four factors are structured and used in court cases, and Panel 3, which deals more expansively with the whole idea of fair use. Panel 1 notes are not yet posted, but it would be a good idea to visit Rebecca's blog now and read about the events she has already posted. The symposium appears to have been a very heady thing, with lots of theorizing. Not a lot of nuts and bolts stuff here, but very, very thoughtful analysis of both theory and function. For another look at Paul Goldstein's keynote, visit Fairly Useful, where Matthew Sag posted his notes from the talk.

Several points piqued my interest: there certainly was a grounding of the discussion in the realities of how courts decide cases (by what they think the outcome should be, mainly focusing on factor 1 and 4). And it was very apparent that some of the participants take the "author's rights" or "natural rights" starting point and others take a more utilitarian point of view about the purpose of copyright. As David McGowan has pointed out in Copyright Nonconsequentialism, you come out in a different place on how you think fair use should be interpreted (or any other aspect of copyright law) when you start in a different place.

All in all a very interesting discussion. For additional commentary about fair use, this symposium, and a weekend NY Times article about the JK Rowling Harry Potter fan site Lexicon case, visit Madisonian.net's blog post (Mike Madison) titled, Does Fair Use Matter? Madison pulls together thoughts about the scope of copyright's murkiest doctrine from a number of our best thinkers on the subject.

Lending credibility to the idea that Lessig may run for Congress in a special election to replace the late Congressman Lantos on April 8 (less than 2 months from now), he reportedly is "away with my family this weekend to think things through," according to an ArsTechnica story: Netroots seek to send legal scholar Lessig to Congress. Wow. Imagine Larry Lessig on the floor of the House of Representatives. I find that image stunning. Not that I imagine he'd be a lifer. He has other mountains to climb, no doubt. But if he wants to learn all he can about corruption, what better place to go? (I feel compelled to point out that this is meant as a joke, but on the other hand, is it really a joke? Is this something to keep politely pretending doesn't exist, like a naked emperor parading down the street in his new clothes?)

Seriously, as we all must know, Lessig's intention *is* to study corruption in Congress, specifically, the system that he has identified as at the heart of Congress' failure to respond in the public's interest to many legal issues -- lobbying, as he has indicated on many occasions. To bring it home, there's the inevitable Disney demand for another 20 years of copyright protection just over the horizon (2017) and we have to come to grips with the fact that arguments aside, if those who oppose such an extension don't find deep pockets of support (pun intended), we might as well not waste our time.

So it's Monday. I'm feeling particularly cynical. Sorry. I wonder if Lessig's decision on running will reflect his cynicism, or lack thereof. Where can he do more about corruption? From within the system, or outside it? Clearly he can *learn* more about it from inside, but can he do anything about it from inside?

Last year I was not able to attend the CIP's annual conference, but I've caught quite a few of them over the years. This one is special for me, however, because as the Center's Virtual Scholar, I have had the honor of participating in the planning. Kim Bonner, the Center's Executive Director, is at the helm of the planning process and has put together a great lineup of events and speakers. At the top of the list is Jamie Boyle, Duke law professor and advocate of the public domain. I am looking forward to meeting him and hearing what he has to say.

I, too, am speaking at the conference. I plan to discuss an idea I am working on as a possible dissertation topic that fits well with this year's CIP theme: Copyright Monopoly.

The lineup is widely diverse, including speakers representing content industries (Copyright Alliance, CCC), law professors and practicing lawyers, librarians and lawyer librarians, and intermediaries like OCLC and Google, among others.

The conference also features a new format for day three -- a series of roundtable discussion groups focused on what you can take back home with you to put what you have learned into practice.

Hope to see you there!

The ARL has published a very helpful report for universities and colleges that receive NIH funding regarding their options for facilitating their authors' compliance with the requirements of the new NIH Open Access Mandate: Complying with the NIH Public Access Policy - Copyright Considerations and Options (SPARC).

I would note that even without this mandate, many publishers had already established policies that permitted public access posting (about 60% according to stats available from SherpaRomeo). The interaction between these policies, typical publisher contracts, and the new Mandate's requirements that authors retain sufficient rights to grant the NIH the public access rights necessary for grant compliance would make an interesting addendum to this report. The report 's author does not explore this option, perhaps believing that to leave it up to authors to wade through such contract/policy/regulation interaction subtleties is probably not the best risk management strategy. Or, he may not realize that a large percentage of publishers have these policies. I certainly think it's worth having a look at. If the combination of the policy and the contract properly referencing the policy were sufficient to meet the requirements of the mandate, it might reduce the administrative burden in many, though not all cases. But that might be the rub right there: depending on the institution's size, the strategy that requires the least case-by-case might be a better choice even if it isn't technically necessary in all cases.