©ollectanea

I really enjoy reading Bill Patry's blog posts and encourage you to subscribe to his feed and visit as often as he posts. I don't think he misses a single copyright case (after all, he has to stay up on even the most arcane copyright decisions because he has to keep his multi-volume treatise up to date -- lucky for us). But to really appreciate why Bill's blog is such a fabulous resource, you only have to spend a fraction of the 20 years I've spent reading summaries of these same cases in the staid legal bulletins. Oh, yawn.

Bill, amazingly, can make the most esoteric of cases interesting and even amusing, as he connects the dots for us to other issues, other cases, and infuses the whole exercise with his wit, wisdom and charm. And I never read a post without envisioning him in his outlandish tennis shoes, his sort of personal "mark of distinction" other than his incredible professional distinction.

This morning's post is no different: The Patry Copyright Blog: Fold Your Cards and Go Home. A silly case that never should have made it to court at all, let alone to a full decision of the court. But that's what got me to thinking -- as is so often the case when I speak about fair use and other aspects of copyright law that involve risk assessment (that is, you can rarely be sure that you are right about your legal analysis, so your tolerance for ambiguity and risk has to be figured into your decision-making process), I always mention as one component the risk of actually being sued. After all, nearly every dispute is settled, most at the initial stage after a cease-and-desist letter arrives and the accused has the good sense to talk with a lawyer about it or google some basic legal information on the Internet (yes, you can do that) rather than just chunk the nearly unintelligible legalistic letter into the trash. But when I see cases like this one, it reminds me that lawsuits are not as remote a risk as I sometimes think. There are bull-headed plaintiffs and bull-headed defendants. One of them is right and one is wrong. Sometimes it's more obvious to the rest of us which one that should be; sometimes it's a really close call and the fight is worth it to clarify an important point. But sometimes it's just ridiculous. Usually, if it gets that far, there was an attorney involved who got in over her/his head. So maybe that's the key: if you are super-invested in your claim or your defense, at least do yourself the favor of getting an attorney who really knows the law and who won't just indulge you in ridiculous filings. Sober assessments by all parties, and their lawyers, will result in settlement for just about anything, most of the time, way before anyone actually files a single document.

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.

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?

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.

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.

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.