©ollectanea

Streaming Video Online: Think About This First

2010-02-03T21:43:45Z

I'm sure many of you have read last week's Inside Higher Ed's interesting, if somewhat confusing, article entitled "Hitting Pause On Class Videos", http://www.insidehighered.com/news/2010/01/26/copyright. In short, the story reports that the Association for Information and Media Equipment (AIME) is alleging that UCLA faculty members are infringing copyright by streaming entire (presumably) videos via their access protected course web sites. As I read the article, it appears as though UCLA is trying to defend this practice under Section 110(1), which only applies to traditional face to face (F2F) classroom settings. It is true that under that section an entire video can be show as long as it is lawfully made (p.s., rented movies are "lawfully made"). However, it doesn't matter, as suggested in the article, whether the online environment is a "class" and therefore, should qualify for the F2F exception; the TEACH Act amendments to 110(2) have already said that. The key is whether or not the performance or display is "transmitted". That is the difference between 110(1) and 110(2). Otherwise, no one would ever use 110(2) because its requirements are so many and so challenging. The Copyright Act, §101, specifically says that "To "transmit" a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent." And that is exactly what is happening when videos are streamed online. Now, streaming (the transmission) a video online is allowed, under certain conditions, but not the entire thing. Only a reasonable portion of it. Not helpful, doesn't make sense, but there it is. While there is some indication that, on a case-by-case basis, showing the entire video may constitute what is reasonably necessary, but I have yet to see it condoned as a generally accepted practice. There are also some interesting discussions occurring as to whether or not it is permissible to stream entire videos into a "live" F2F classroom from a central location on campus. Again, this would, strictly speaking, seem to be a "transmission", and, therefore, not authorized by 110(1); although there is probably some room for a fair use argument. But, as to a 110(1) (F2F) argument - hmm. At the time 110(1) and 110(2) were authored, I believe Congress intended 110(1) to cover the scenario where the faculty, the students, and the work were in the same location. Here is the relevant legislative history for Section110(1) of the 1976 Copyright Act: "There appears to be no need for a statutory definition of "face-to-face" teaching activities to clarify the scope of the provision. "Face-to-face teaching activities" under clause (1) embrace instructional performances and displays that are not "transmitted." The concept does not require that the teacher and students be able to see each other, although it does require their simultaneous presence in the same general place. Use of the phrase "in the course of face-to-face teaching activities" is intended to exclude broadcasting or other transmissions from an outside location into classrooms, whether radio or television and whether open or closed circuit." It is that last sentence that gives the most cause for pause in the rush to stream entire videos from a central location into a "live" classroom. I fear that some of these distinctions between the various provisions of the act are being glossed over in the stretch to justify what certainly seem to be legitimate and non-threatening uses of technology which allow efficient use of resources for maximum educational experiences. I know from personal experience, though, that many libraries are reluctant to rest their e-reserves practices entirely on fair use. It seems only fair that they should also have the information that streaming entire videos online is not specifically sanctioned by the copyright act and instead relies much more on fair use.

On Being Relevant - Addition

2010-01-16T20:13:52Z

Evidence of my blog learning curve here: This footnote was meant to be with my previous blog: On Being Relevant: Copyright and Higher Education - Notable exceptions to the 'no relevancy' attitude include university libraries, the IT and student affairs groups that must respond to student P2P file-sharing activities, and Legal Affairs, who understands the problem, but often has insufficient time and resources to deal with it. This is not an all-inclusive list. P

On Being Relevant: Copyright Law and Higher Education

2010-01-15T23:25:06Z

By way of explanation and introduction, I have been given the opportunity and privilege of being a guest blogger on ©ollectanea for the next month or so. Some of you already know me through other CIP activities, including blogging several years ago. I'm really happy to be "on" with Peter Jaszi since I have long been a fan of his and of his work, particularly the work with the American University Center for Social Media (http://centerforsocialmedia.org) and its facilitation of Best Practices documents. (http://www.centerforsocialmedia.org/resources/fair_use_and_teaching) What I find very interesting about the Center's work and its development of best practices (that have already been widely accepted) is the way this group has facilitated and reinforced the belief that copyright is indeed relevant, in the world of documentary film studies as well as other areas. Of the many worthwhile objectives the Best Practices documents meets, unmasking copyright as relevant is a most remarkable achievement. Whether the Center affirmatively set out to establish the relevance of copyright or whether they were simply dealing with a uniquely "aware" group, I do not know. I have come to the conclusion that the greatest challenge for campus copyright educators (as well as those trying to reach the general population) lies in helping individuals appreciate copyright's intimate relationship to many of their daily activities, both at work and at play. If copyright is not understood and accepted as even being relevant to core campus activities - if it is viewed instead as optional or a "luxury", educational efforts will not succeed. Indifference will rule the day and the campus will be unequipped to participate in the copyright debates and national discussions that currently dominate scholarly communication. I have been involved in copyright education at higher education institutions for fifteen years; given and attended dozens and dozens of presentations and workshops all over the country; and developed several copyright educational web sites including the TEACH Act Toolkit and the Know Your Copy Rights. So I have spent some time in the various strongholds or centers of copyright expertise, understanding and appreciation. Being among like-minded colleagues is almost like a vacation. It's at least a validation of your choice to spend your waking moments doing what others also consider a worthwhile venture. What a relief to be around people who understand the manner in which copyright has soaked into the very fabric of life in American - whatever their take on copyright law may be. For purposes of appreciating copyright's role, its limitations, nuances, goals, and the opportunities present for shaping its evolution, it doesn't even matter whether you are sitting amongst a group at the RIAA, MPAA, or AAP or at the EFF, Creative Commons, or Public Knowledge. Because in these groups, all are safe with the cocoon of consensus that copyright matters to the average person and has relevance to how various aspects of life are conducted. These are great and stimulating places to spend time and I thoroughly believe in and applaud the work they do. However, I spend most of my time outside that cocoon, in the "trenches", if you will. So do you, unless you're one of the lucky few who get to skip that first great big hurdle - the one that consistently leaves most universities at the starting line on a horse that won't run. That hurdle is the complacency evident where copyright is concerned; the pervasive apathy that prevails in all (including, at times, the very upper administration) but a few areas or groups at the university; the belief that copyright plays no role in teaching and outreach activities. The conviction that copyright considerations are optional and that it is ridiculous, if not delusional, to suggest that permission might be necessary when all that is being done is using the best resources available to teach - a noble and worthy cause. Academia doesn't make money from its works and is, in fact, happy to share them; ergo, the creators that are being "borrowed" from no doubt share that same attitude. It becomes virtually impossible to convey copyright information and assistance to those who believe it has no current relevance to anything they do and has never had any relevance or inhibited their manner of presenting material to their students. They assert that the correctness of this attitude is evident in the lack of any negative consequences resulting from the practice of completely ignoring copyright law when teaching in the past. In that same past, when the copyright and distribution of copyrighted material was in "analog" form and face2face teaching was the norm, nothing happened if copyright was ignored by faculty (coursepack permissions were handled and paid for by copy shops and costs passed to the students). Now, in the digital world, they believe nothing has changed. Those who handle their own online courses or online components of courses generally believe that fair use and access controls suffice and copyright remains irrelevant. Although I did not personally attend the 2009 Annual EDUCAUSE conference this past fall, I was able to view the keynote address by Lawrence Lessig online and it was fascinating. See "It is About Time: Getting Our Values Around Copyright" (http://blip.tv.file/2827842). I recommend taking the time to listen to his presentation. I mention it here because Dr. Lessig made several initial points, sometimes using quotes from Jessica Litman, that resonated powerfully with my growing observation that for most people, including or particularly those in higher education institutions, copyright is perceived as having no significant relevance to the core teaching mission of the university. Dr. Lessig refers to copyright as the huge elephant in the room but I would suggest that in many places, the elephant has left the building. Dr. Lessig stated that, in the past, copyright played a tiny role in the way people engaged with their cultures. Quoting Dr. Litman, "At the turn of the century {19th to 20th}, U.S. copyright law was technical, inconsistent and difficult to understand but it didn't apply to very many people or very many things... If you were an author or publisher,..playwright or producer of plays, or a printer, the copyright law bore on one's business... But ... booksellers, record publishers, motion picture producers, musicians, scholars, members of Congress, and consumers could go about their business without ever encountering a copyright problem." Then, according to Dr. Lessig, things changed radically because of technology and the current context is one where copyright reaches across the spectrum of ways in which we engage in our culture. Continues Litman, "Ninety years later, U.S. Copyright law is even more technical, inconsistent and difficult to understand; more importantly it touches everyone and everything...Technology, heedless of law, (emphasis added) has developed modes that insert multiple acts of reproduction and transmission - potentially actionable events under the copyright statute - into commonplace daily transactions. Most of us can no longer spend even an hour without colliding with the copyright law." (emphasis added) As I stand with a foot in each world, I wonder what hybrid copyright law creature will emerge from such incompatible versions of reality - those who recognize that a great deal of what they do is affected by copyright and those who barely give it a second thought. Where do you even begin? How can you possibly convince our children, our students, of the illegality of P2P music file sharing when their role models run digital music audio reserves or place entire music tracks in their online courses? That you cannot copy large portions of works when private companies are allowed into their library to scan entire library collections? How do you split those hairs in a way that is meaningful and credible to the average student? In a world of scanning, burning, streaming, and ripping, how does copyright achieve relevance when campus leadership, down through the levels of the faculty pyramid, are satisfied with a courteous, but dismissive, nod in the direction of copyright? How can copyright be anything but ignored when educational institutions consider copyright education and guidance optional? How does copyright achieve and maintain relevance in an atmosphere that acknowledges only that which threatens to cost a lot of money? You got me.

Reframing Google Books

2009-09-16T17:40:16Z

The U.S. Copyright Office is a generous and generally reliable font of information on a wide range of technical copyright questions. Despite that, or perhaps because of it, the Office's testimony at last week's hearing on the Google Books settlement, before the House Judiciary Committee, may have generated more heat than light. That's because the real legal issues facing Judge Chin of the New York federal district court, as he considers whether to approve the settlement, aren't about copyright at all. Instead, they concern abstruse specialties (competition law, class action procedure, etc.) in which neither the Copyright Office nor I can claim special expertise, By contrast, the most important factual question the judge confronts -- whether the settlement will add meaningfully to the public accessibility of books -- is one on which we're all entitled to our opinions. And, in the spirit of full disclosure, I should say that I have mine. Having given some advice to the National Federation of the Blind as it worked to shape the provisions on accessibility for the print-disabled that now appear in Article 7 of the proposed settlement, I can say that the settlement will be a boon to the many Americans (probably more than 30 million in all) who have difficulties processing conventional text. So what about last week's Copyright Office testimony? It identifies three major copyright concerns about the settlement, all of which I think are misplaced. The first and most significant is the possibility that the settlement will put in place a "compulsory license" for on-line uses of out-of-print books still protected by copyright. Non-copyright geeks need to understand that in our world, these are fighting words. In fact, of course, this mechanism has a long record of success in cutting the knots that get tend to tied around issues involving copyright and new technology (e.g. the compulsory license for making cover versions of recorded songs, or the ones that have enabled cable and satellite television). But that doesn't prevent many experts (like those at the Copyright Office) from disapproving on general principles of governmental action that takes negotiating power away from classes of individual copyright owners. The point here, however, is not that compulsory licenses actually may be less frightening than the Copyright Office testimony suggests, but that what the proposed settlement describes isn't, by any reasonable stretch, a compulsory license. Rather, it's a negotiated understanding on future licensing for particular uses that individual rightsholders (here authors and publishers) are free to avail themselves of, or not, as they choose. In that respect, it is closet relative in the menagerie of mass licensing options is probably "collective administration," a technique we know in the United States mainly as it is practiced by the musical performing rights societies (PRO's) like ASCAP and BMI - and which is employed far more widely in most other countries. Of course there are differences between classic collective administration and the scheme that would be administered by the Book Rights Registry under the proposed settlement, of which the most obvious is that while rightsholders must opt into traditional collective administration, they would have to opt out of this contemplated licensing regime. But that difference is more apparent than real. As a practical matter (in the U.S.) or a legal one (in many other countries) the only way a rightsholder can be paid for some uses is by "voluntarily" affiliating with a collective administration organization that manages this set of rights. The settlement proposes is at least as fair as that, and perhaps fairer! The Copyright Office testimony might also be read to suggest that the licensing solution in the proposed settlement deserves special scrutiny because it is so invasive of rightsholders' markets. In fact, however, that solution has no bearing on print sales, including the emerging print-on-demand model, which is so well adapted to the exploitation of out-of-print material. And, of course, it doesn't touch the markets for adaptation, translation, excerpting, etc. On-line reading, and only on-line reading, is covered. So whatever kind of licensing this is, its reach should not be overstated. The real question, I'd suggest, isn't how the licensing regime proposed in the settlement should be labeled, but whether or not we like what it accomplishes. Likewise, the Copyright Office's next concern may actually distract rather than focus attention where it belongs; that's the idea that the Google Books settlement would somehow preempt efforts to resolve the ongoing "orphan works" issue through new legislation. The campaign to "free" orphan works is one in which I've been actively involved for years, and in which the Copyright Office admirably has taken a leading role. Here, though, Google may be a victim of its own excellent public relations efforts. In fact, claims and counterclaims notwithstanding, there's nothing about the proposed settlement that would put more than a slight dent in the problems faced by scholars, creators and publishers who want to make new uses of old works whose current owners cannot be identified. Most orphan works, it should be emphasized, aren't out-of-print books - as to which there usually is an adequate paper trail; instead, they are unpublished manuscripts, letters and diaries housed in archival collections, historical photos and art works, and so forth. And even if the some of the old copyrighted books that consumers could read under the proposed Google Books settlement are well and truly orphaned, the settlement wouldn't authorize anyone to reprint them, or make movies based on them, or include excerpts from them in scholarly publications. Even if the settlement were approved, in other words, plenty of work would remain for orphan works campaigners to do! Third, and finally, the Copyright Office testimony points out - accurately - that some of the U.S.'s trading partners object to the proposed settlement. There's some irony here, of course, given that (as I mentioned earlier) collective licensing is practiced far more widely outside the U.S. than it is here at home. But putting that to one side, I need to suggest that whether or not foreign nations approve of this way of organizing a portion of our domestic market in texts, it may be (strictly speaking) none of their business - especially since foreign rightsholders of out-of-print books have the option of disassociating themselves from the Book Rights Registry and making their own deals - if they can - with consumers. It's also worth remembering that this whole story began - and the settlement is the directive outgrowth of - Google's strong assertion of "fair use" in connection with the scanning of in-copyright books. So it's no wonder that our European partners (who seem to be making most of the objections), whose national laws don't include a fair use provision, would come up with other ways of dealing with issues of mass digitization - though it remains to be whether those ways will prove are as effective in promoting meaningful access as the proposed Google Print settlement has the potential to be.

More on educational fair use -- from an unexpected source

2009-08-05T18:56:57Z

When last I was heard from in this space, I was bemoaning the lack of any solid case law supporting what, at some level, we all know the be true: that the educational enterprise has a special place in the scheme of copyright law, and that - in particular - educational uses (both commercial and non-commercial) deserve special deference in fair use analysis. See "Educational fair use: a provocation". Since then, I've become aware of a development that seems worth commenting on, even though to do so puts me in a strangely divided position.

The development in question is the decision (back in April) of the Fourth Circuit Court of Appeals in A.V., a minor, et al. v. iParadigms, LLC, otherwise known as the "Turnitin" case. See Case here. The backstory is quickly told. The defendant company's commercial software application is perhaps the most popular automated "plagiarism detection" systems that are being aggressively marketed to (and widely adopted by) schools and universities. According to the court (which in turn quotes the defendant company's self-description of the product, when a school subscribes to iParadigms' service, a subscriber typically "requires its students to submit their written assignments 'via a web-based system available at www.turnitin.com or via integration between Turnitin and a school's course management system. In order to submit papers online, students 'must be enrolled in an active class' and must 'enter the class ID number and class enrollment password' supplied by the assigning professor. After a student submits a writing assignment, Turnitin performs a digital comparison of the student's work with content available on the Internet, including 'student papers previously submitted to Turnitin, and commercial database' of academic journals" and the like. You know the rest: after the program "flags" possible instances of plagiarism, and the teacher or school responds, as deemed appropriate, with further investigation, reinforcement of lessons on academic honest, disciplinary action, or all of the above.

The Fourth Circuit opinion arose from a challenge to the "archiving" feature of Turnitin brought (with the assistance of an experienced Northern Virginia patent lawyer) by several high school students in different parts of the country. As far as it concerns us, their claim was simple - the inclusion of their papers on the Turnitin database of previous submitted student work (about which they were given no option if they wanted credit for the assignments) amounted to involuntary reproduction - and, therefore, copyright infringement. Of the several issues raised in defense of the student plaintiffs' claims, the appellate court's opinion deals with only one: the assertion that the copying of their papers into the archive constituted "fair use" under Sec. 107.

Before going further, I should expand a bit on my ambivalence. I'm going to claim that what the court had to say is good news for the position of educational fair use, as a general matter. But I'm no fan of Turnitin in particular or automated plagiarism detection systems in general. In fact, I'm persuaded by the critiques of the trend toward use of these tools that has been so eloquently voiced by Professor Lisa Maruca (and others), who seem the fetishization of "originality" as a growing problem in writing pedagogy. The "plagiarism panic" that has swept through secondary and higher education in recent years may or may not reflect a change in students' real behavior. Alternatively, this dramatic uptick in concern could be, instead, the result of a "reporting phenomenon" (i.e., as teachers develop better tools to sniff out imitation by student writers, we become more and more aware of what has been going on, all along, under our noses. But whatever the stimulus, many instructional responses to this "plague" are clearly problematic, since they tend to occlude the fact that, at base and in general, writing is a collaborative and imitative activity more than a solitary and originary one. For more on this, you could look at the wonderful resource page of the CCCC-IP (the Intellectual Property Caucus of the Conference on College Composition and Communication) at http://ccccip.org/pds, or (for the specific flavor of her work, which connects the twin crises in plagiarism and copyright enforcement) at Professor Maruca's "Plagiarism and Copyright : Links in the Turnitin Culture," which appears at p. 6 of the Winter 2006 Sweetland Writing Center Newsletter, archived at http://141.211.177.75/UofM/Content/swc/document/SWC_W06.pdf. Enough said! At this point, I need to hold my nose and say a bit more about why, despite its outcome, there may be value for educators in the Turnitin decision.

The first and most obvious way in which the decision may be helpful is that it provides - for the first time - what amounts to a ringing endorsement of the general trend toward "transformativeness" analysis in fair use in an educational (or, at least, quasi-educational) context. Undeterred by the plaintiff's assertion that the commercial nature of iParadigms service somehow disqualifies it from claiming fair use, the Fourth Circuit makes it clear that if a use is transformative, its commercial character is of little analytic significance. Likewise, the court turns back the argument that "iParadigms' use of [plaintiffs'] works cannot be transformative because the archiving process does not add anything to the work -- Turnitin merely stores the work unaltered and in its entirety. This argument is clearly misguided. The use of a copyrighted work need not alter or augment the work to be transformative in nature. Rather, it can be transformative in function or purpose without altering or actually adding to the original work." In this case the change in function in this case because the student papers were being used for plagiarism checking rather than for their informational content. But, of course, a similar argument can be made for the teacher or learner who uses a copyright work not for its content, as such, but as objects of critique, as illustrations of social/cultural phenomena, or as inputs in the creation of new content.

All this is useful, but hardly remarkable, given the present state of fair use law generally. The very special value of the Turnitin decision for educators may actually lie elsewhere. Not only does the Court of Appeals endorse the transformativeness analysis performed by the district judge who first heard the case, but it also quotes (with apparent approval) the lower court's statement that iParadigms service "provides a substantial public benefit through the network of educational institutions using Turnitin" (emphasis added). The fact that an unlicensed use of copyright material provides an educational payoff (even an indirect one) is persuasive on the issue of fair use; in other words, iParadigms is getting a bit of a free ride on the general legitimacy of the teaching enterprise. We may dispute (as I certainly do) about whether Turnitin itself actually provides such a public benefit, but the courts are assuming it is so! Obviously, teachers (and learners) in other potential fair use situations will be able to make other, perhaps even more compelling, arguments about why unlicensed educational uses of copyrighted material to promote the larger public interest and the purposes of copyright.

So, is this a slim reed? Certainly, but it's better than no reed at all. For the first time in the history of U.S. fair use jurisprudence, we have a decision finding fair use in (or around) a typical instructional setting. We should try to make the most of it!

On August 3, the Chronicle of Higher Education announced a settlement in the case, so there will be no further proceedings between these parties. But the issue lives on, as do the courts' rulings.

Educational fair use: a provocation

2009-03-30T15:20:57Z

Some years ago, I was in a meeting with a high IP official of a certain political administration (neither of which will be named here), discussing exceptions to copyright law and trying to make the point that these were critical to the mission of secondary and higher education, which were (even then) cash-strapped. The unnamed official had a simple response to this argument, which ran (in effect) like this: These days, education is big business, and a big market for copyrighted material. If copyright licenses cost to much, the right answer isn't to impose costs on copyright owners but to go back to education funders and ask for additional appropriations to cover rights clearances. Somehow, this line didn't seem right then, and it doesn't seem right now. But the argument may be a bit more difficult to counter than some educators believe (or hope). It is, however, important that we prepare to do so, as we gird for a struggle over the future of educational fair use. I put my focus on fair use here because--at least for now--the promise of educational (and education-related) special exceptions to copyright seems limited, as evidenced by the disappointments of the TEACH Act and the becalmed state of the process designed to update Section 108. In the foreseeable future, then, fair use--that marvelous catch-all copyright exception--may be the best hope. Educators are entering an era in which the copyright fair use doctrine will be of more importance to us than ever before in its 168-year history. A myriad of questions confront us to which fair use may be at least a partial answer, such as:

How can students use copyright materials in creating class projects?
What can students and teachers do with such projects once they have been created?
What rules apply to quoting copyrighted material in electronic course materials?
To what extent can teachers take advantage of the potential for e-reserves?
And many more!

Our communities have strong views on at least some of these questions, as evidenced, for example, by last Fall's Code of Best Practices for Fair Use in Media Literacy Education, which it was my pleasure to help facilitate, or the forthcoming fair use statement from the Society for Cinema and Media Studies. It's crucial that positions like these should be defined as fully and quickly as possible by educators, lest someone else gets to frame the conversation--as publishers are attempting to do in their e-reserves lawsuit against Georgia State (read the complaint here). The challenge that educators face, of course, is the curious dearth of case law interpreting the fair use doctrine where core educational functions are concerned--and by "core" I don't mean file-sharing by college students or even the production of course packs by for-profit businesses that happen to serve educational facilities. I do mean activities in and around the classroom, the library and (increasingly) the computer lab! And this is where what may either be strength or a weakness in educators' positions lies. In the years since 1841, when Joseph Story first cooked up the fair use doctrine, there have been no decided cases--that's right, no cases!--that address the legal status of core educational functions conducted in and around conventional schools. The closest we come (and it's not very close!) is Encyclopedia Britannica v. Crooks, 542 F. Supp. 1156 (W.D.N.Y. 1982), which stands for the somewhat underwhelming proposition that schools can't invoke fair use to justify a wholesale program of off-air taping for possible future classroom use! Nor does legislative history help out much. Although the deliberations leading up to the 1976 Copyright Act are replete with discussions of the problem of educational photocopying, they don't give us (or the courts) much to work with on the more fundamental question of how strong a privilege core educational functions, in general, should enjoy. Unfortunately, those deliberations did open up a path that ultimately became blind alley for educational fair use--the prospect of "voluntary guidelines"--and in so doing delayed the emergence of a robust discussion of the application of the doctrine in its native form. (This isn't the place to review the guidelines fiasco, even were there anything left to say after the magisterial article by former CIP IP Scholar Kenny Crews, which you can read here.) What should we make of the fact that we just don't have well-articulated statements by judges and legislators about the importance of education to society and the importance of fair use to education? One possibility, of course, is that (like my unnamed official) they actually don't buy this argument. The other--and it seems to me more likely--is that the argument is too self-evident to require much discussion. If so, a possible corollary might be that copyright owners (who generally don't like to lose) have been leery of pushing claims against core educational functions to a decision! Remember, though, this is all supposition--which suggests to me that educators should be reluctant to rely on it too heavily. In that case, what should educators (and those who love them) be doing now to improve their position? Let me make two modest suggestions:

First, it's important that educators refrain from claiming too much under the heading of fair use--and, in particular, that they avoid the simple (and erroneous) proposition that merely because a use is educational, it is definitionally fair. True though it is that "education" is named in the preamble to Section 107, that--in itself-- and $3.00 (give or take) will get you a Vanilla Rooibos Tazo® Tea Latte at Starbucks.
Second, it is crucial to develop the arguments for treating various kinds of educational use as "transformative." Like it or not, this is the current mantra of fair use jurisprudence, and educators need to recognize this jurisprudential fact and respond accordingly. They need to generate more and better explanations (the fair use code for media literary, referenced above, being one example), of how educational uses don't just repeat quoted material for its original purposes, but both repurpose that material and add value to it. For educators, this proposition may seem transparently obvious. But this isn't necessarily true for the copyright community in general--or the courts in particular.

In future posts, I'll be going into some more detail about the challenges that educators face. But it isn't too soon to begin to think--and talk--about how to meet them.

Copyright Bullies #1 (first in an occasional series)

2009-02-23T01:07:03Z

Many publishers license digital text for downloading through Amazon.com. Now Amazon is out with the Kindle 2 device, which in addition to displaying the electronic books you purchase will read them aloud to you--after a fashion! This is not (it bears emphasizing) a substitute for conventional recorded books, presented by professional readers and boasting a variety of production values. What the Kindle will generate is synthesized speech, which is serviceable when conventional reading isn't an option and essential for print-disabled "readers" (including the blind and the dyslexic). Now (on February 12, to be exact) comes the Authors' Guild, an advocacy organization of professional writers, suggesting that someone (Kindle users? Amazon?) is courting copyright infringement liability as a result of the new "Text to Speech" function. This attempted shot across Amazon's bow is at http://www.authorsguild.org/advocacy/articles/e-book-rights-alert-amazons-kindle-2.html, and it makes interesting reading. There's just one problem with the argument: However great a threat the Guild may discern to the increasingly lucrative recorded book market, its members have nothing to say about this new technology, as far as copyright law is concerned. This leads me to a brief disquisition on why we don't get sued for singing in the shower. It isn't because such amateur performances are fair use, or because the music industry is solicitous of our personal privacy. It is because the itemization of the exclusive rights of copyright owners (in Sec. 106 of the Act) is, itself, exclusive. If a right isn't listed, copyright owners don't have it--period! And where performances (of music or text or anything else) are concerned, the statute only enumerates a right of public performance. (That's also why, once you purchase a record or CD, you can play it until your friends and family are thoroughly bored with it.) What's true of private musical vocalizations is equally true of reading aloud in our homes or offices or vehicles. And the fact that the reading is being done with the aid of a personal reading device changes nothing. On its website, the Guild states that its Executive Director's remarks on the subject "have been interpreted by some as suggesting that the Guild believes that private out-loud reading is protected by copyright. It isn't, unless the reading is being done by a machine." But why? It's a distinction without a difference, at least where copyright is concerned. If the Guild is pinning its hopes on a court's willingness to treat whatever short-lived buffer copies may be generated by the Kindle's "Text to Speech" function, they should take another look at the discussion of transitory copying from the Second Circuit's 2008 decision in Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 at 129-130. Nor incidentally, do hundreds or thousands of separate private performances, whether or not machine-enabled, somehow constitute a cumulative public performance. This concept, however we may like or loath it is simply unknown to the law. And it goes without saying that if the users of the Kindle 2 are in the clear, so is Amazon for distributing the device--thanks to the familiar rule that secondary liability for infringement can exist only where there is primary infringement. So here's hoping that Amazon doesn't allow itself to be intimidated by this overreaching assertion of non-existent rights.

Just when you thought you'd heard enough about Shepherd Fairey and the AP

2009-02-18T21:15:00Z

Before getting into the substance of my first post to Collectanea, I want to thank the Center for taking me on as its IP Scholar for the next few years. It's an honor and a privilege to follow in such distinguished footsteps -- most recently Georgia Harper's -- and to have the chance (from time to time) to speak to such an engaged audience. In other words, this should be fun! As you'll discover quickly, I'm a big fan and promoter of fair use -- a user-friendly doctrine in our copyright law that is too often misunderstood and (more critically) underutilized. A lot of my work in the last five years has been around getting different practice communities to recognize and own their fair use rights, and I'll be blogging about the resultant "Best Practices" in fair use documents sometime soon. Today, however, I want to suggest (somewhat uncharacteristically) that the fair use handle may not be the best one (or, at least, not the only one), by which to pick up the by now widely-publicized controversy between the street artist turned culture hero Shepherd Fairey and the Associated Press. By now, you know the outline of the dispute: AP wrote Fairey to assert that his iconic image of Barack Obama infringed its copyright in a photo taken by a freelancer it had employed. Not waiting to be sued, Fairey fired back (with help from the estimable Fair Use Project at Stanford) seeking judicial declaration that the use was legal. In press accounts, one element of that lawsuit got most stress: the claim that whatever use Fairey had made of the image in question should be considered "fair." And so it should be (a point to which I'll return) if the dispute ever gets that far. But there are some other copyright questions to consider along the way. As much of a fair use enthusiast as I am, it's always my advice to consider other arguments against liability as well. And in this case, there are plenty of them. Here's some background: Back in April 2006, then-Senator Barack Obama attended a press event with actor George Clooney to draw attention to atrocities in Darfur, as described at swamppolitics.com. AP Photographer Mannie Garcia snapped some photographs of the event, including this one: Ultimately, Barack Obama ran for president, accepting the nomination for the democratic candidacy on the 45th anniversary of Martin Luther King's "I have a Dream" speech and taking the oath of office one day after the national holiday honoring Dr. King's birthday. Graffiti artist Shepherd Fairey has been an active in politics for over 20 years, and in Barack Obama he saw a candidate worth celebrating and supporting. In early 2007, he came across Garcia's photograph and used it as source material for this painted design: Apparently, it was Fairey who "found" the striking Obama close-up by cropping Garcia's busy medium-shot of the Senator and Clooney. The Obama campaign never officially adopted the image (ironically, because of copyright concerns), but nevertheless encouraged Mr. Fairey to make and distribute the posters. The image became one of campaign's central symbols, and the Smithsonian Institute acquired the original for display in the National Portrait Gallery. So let's analyze the claim. The first question, of course, is whether AP has any rights upon which it can rely. As a freelancer, Mr. Garcia may or may not have been an "employee for hire," but it seems at least likely that AP did contract specifically for rights in works he produced on assignment from them. A more interesting question, then, is whether whatever rights AP had were exclusive or shared ones. Since the early 20th century, it's been a copyright convention in the United States to discount the contributions that photographic subjects make to images depicting them. This is the approach the Supreme Court took in the famous 1884 Burrow-Giles Lithographic v. Sarony case (involving rights in a portrait of Oscar Wilde), and its implications were first documented by Jane Gaines, in her important 1991 book, "Contested Culture: The Image, the Voice and the Law." In practice, a photographic subject has a lot of responsibility for how he or she looks, at least in a posed or "semi-candid" shot. This may be particularly true of a politician actively involved in cultivating a public image. If the subject were ever considered to be a joint author of a photograph, the implications for legal analysis would be substantial. In this case, for example, Barack Obama would have been in a position to give Fairey legal authorization to make whatever use of the photograph was necessary to create the poster -- making the AP's claim effectively moot. Does the issue of the ownership of Barack Obama's image provide an occasion to reconsider the historically well-established but doctrinally shaky allocation of all rights to the photographer (or the photographer's employer)? Perhaps so. But it could be an uphill battle. So let's consider another argument -- one that doesn't depend on establishing Barack Obama's ownership. The scope of copyright protection extends only to the elements of the work that are someone's original authorship. We probably all would concede that had Mr. Garcia's photograph been reproduced exactly, in its entirety, something attributable to him would have been taken. But that wasn't the case here. Shepherd Fairey painted his image using a photograph as a reference, rather than transcribing it directly. What, after all, do the two graphic works have in common? One thing is Barack Obama's physiognomy, which is his alone! Another is his pose -- chin uplifted and face slightly turned -- clearly one of the elements that makes the original image (and Fairey's version) memorable. Can the AP (by way of Garcia's authorship) claim that? In the abstract, perhaps, since every since Burrow-Giles we've understood that posing the subject can be an aspect of photographic authorship. In this case, however, it isn't clear that Garcia created the pose, as distinct from happening upon it. Nor is it obvious that had he created it, it would be considered "original." Innumerable high school yearbooks testify to the fact that this is a conventional way of creating interest in a portrait photo. Moreover, it is one that is already familiar from photographs of public figures, including Martin Luther King himself, as photographed by Karsh of Ottawa. In general terms (which are the ones that matter most here) the pose is conventional rather than copyrightable. So what's left? And -- more to the point -- is it enough? Using the conventional "subtractive" approach to infringement analysis, and beginning by stripping away all the elements of the Garcia photograph that copyright doesn't protect, would we be content to conclude that the Fairey poster design is "substantially similar"? Or are the "original" elements repeated in the poster (the exact angle of the head, for example) simply to few and too trivial to count There's a general rule that the law doesn't stoop to trifles and it applies in copyright infringement analysis. The fact that we excuse rather than penalize so-called de minimis copying of protected material is just another way of assuring that overenthusiastic assertions of protection don't gum up the works of creativity. This may well be such an example. Of course, if a court were event to reach it, Shepherd Fairey's fair use claim would also have real force. In Garcia's photograph, Fairey "found" a reference to Karsh's famous King portrait - arguably an act of visual commentary or critique. In any event, Fairey took only a portion of the original image (although arguably the most important part), he transformed the image by using it in a new context (fine art/political advocacy v. news reporting) and adding value to it, and he did nothing to undercut the lasting commercial value of the image. About the only argument left is the circular one that if the use were not considered fair, the AP would have been entitled to receive a license fee for it -- and, therefore, that its "market" has been harmed. But recent fair use case law speaks clearly, decisively and negatively to that point. When a use is truly "transformative," we are told, the copyright owner has no valid expectation of licensing revenue for it (or others like it): "[When the use of] images is transformatively different from their original expressive purpose.... a copyright holder cannot prevent others from entering fair use markets...." Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2006) at 614-615. Fairey v. AP could be an interesting fair use case, but it is (perhaps) an even more interesting introduction to other copyright doctrines that protect the rights of creators to incorporate elements of the surrounding culture into their own work.

Thanks Georgia.

2008-12-22T18:43:12Z

Well, believe it or not, this is my first time posting to the Collectanea blogosphere since the inception of the Center for Intellectual Property's blog in early 2007. (By the way, I'm the CIP's Executive Director- Kimberly Bonner). When the CIP developed the blog in 2007, we envisioned the blog as the primary communication platform for scholars with whom CIP collaborates. Although the CIP anticipated interest in the blog, the response far exceeded our wildest expectations. Collectanea's favor is, in large part, due to the wit and wisdom of Georgia Harper. For the past 2 years, Georgia has been the primary scholar working with the CIP on educational programming, research and experimenting with the Collectanea blog. Without a lot of assistance, but mountains of creativity and passion, Georgia has helped to create a space online where over 30,000 folks come to read and reflect on Georgia's musings. I am among Georgia's legions of fans who enjoy thinking about her new ideas and nuanced reasoning. I'm very fond of teachers...probably because I come from a long line of them. I admire Georgia's uncanny ability to take the incredibly complex, break it down and make it incredibly accessible. That's a quality sorely lacking these days- particularly in copyright circles. Georgia's collaboration as our IP Scholar ended November, 2008. She will still serve on the CIP Board of Advisors, but she will no longer moderate the blog. (I know, I know...let's just pass the Kleenex now and go rent Beaches). But alas, this good thing has come to an end. Please let Georgia know how much you appreciate her work. In 2009, the CIP will implement many changes. Change appears to be the "buzzword" in the U.S. and it certainly applies to the CIP. The first change will be our new IP Scholar. Peter Jaszi has graciously agreed to collaborate with the CIP for the next two years. Peter is a terrific scholar and professor at American University's Law School. We are excited about this collaboration and hope you are also. Peter will begin posting to the Collectanea blog in February, 2009. Please visit the CIP's website at www.umuc.edu/cip for more updates on future programming. Happy Holidays and have a wonderful 2009! Change is definitely in the air.... Kimberly

Time to say goodbye, good luck, and happy trails to you!

2008-11-27T15:15:33Z

I have so enjoyed my two years as the Center for Intellectual Property's Virtual Scholar, and my 20 months as your host here at Collectanea. Over these two years, I've kept an eye on and chatted about copyright matters, heard from many of you either in comments or by email, taught two courses for the Center, helped to plan and keynoted for the Center's Annual Symposium and, overall, been very, very privileged to be involved with you and your concerns and interests through the generous sponsorship of the Center. My tenure comes to an end this month and Peter Jaszi will be joining the Center as virtual scholar next year, continuing a wonderful practice that we are all so lucky the University of Maryland University College supports! I am a contributor to two other blogs and hope that you'll read those posts from time to time if they may interest you: Free the books and The Scholar's Space, the first sponsored by the University of Texas at Austin Libraries, and the second by the Texas Digital Library. My writing for Free the books focuses on the copyright issues involved in identifying public domain and orphan works. That effort stems from UT's participation in the Google Book Search project, which generates digital copies of all of the books in our Benson Latin American Collection, but it will extend to issues associated with ascertaining the copyright status of all works, not just books. The Scholar's Space focuses on open access and other issues associated with scholarly communication. And again, these issues spill out to other forms of communication. It's a web, right? Everything is connected to everything else. I certainly wish all of you who address copyright issues in your day-to-day the very best of luck. More than that, May you have the determination, the confidence, the courage and the wisdom to meet the challenges you will face today and everyday. May you be happy!

Best Practices in Fair Use for Media Literacy Education -- And Section 108

2008-11-17T13:17:46Z

The Center for Social Media at American University recently launched yet another in its amazing line of best practices guides, The Code of Best Practices in Fair Use for Media Literacy Education. I have received notes from so many people asking me whether I've seen the guide, that I am very encouraged that it's getting the widespread exposure it deserves. Of course I recommend to everyone reading this post that you have a look at it, even if you don't teach media literacy. And, I'm very excited for the Center for Intellectual Property that its next virtual scholar will be Peter Jaszi, who had quite a hand in the development of this approach to expanding reliance on fair use. This document, like the others produced by the Center, explains the place of fair use in our law, the importance of relying on it, and most important of all, the elegance and wisdom of a flexible standard for using others' works. Unlike the rigid structures that most provisions of copyright law lay out, structures that in many cases are either obsolete before the ink hits the paper, or actually work to freeze backward-looking practices in the face of change, fair use can be adapted anew, every day, to the changing environment that we find ourselves in. "Rapid" barely begins to describe the rate of change in technological capability and corporate business models necessitated by that change. This set of Best Practices takes care in its introductory remarks to describe clearly how it works, what it encompasses and what it does not do as well. For example, it makes very clear that it's not about showing movies in class, either to reward good behavior or for instructional purposes covered by Section 110 (1) and (2) (the TEACH Act). It's about creative, transformational uses of parts of others' works in new works. It also takes pains to dispel irrational fears of litigation in these contexts where markets are unlikely to be affected by uses that also have great social utility. So far all of the Center's guides have focused on creative reuses and remixes of others' works, where we have our strongest claim to a broad understanding and practice of relying on fair use. But I want to suggest that even though I agree with the premise of the Best Practices approach, that creative uses enjoy the strongest claim and need the strongest defense, the rapid change in business practices among copyright owners is setting the stage for even non-creative uses, those that simply reproduce and distribute a work, to need and deserve just as strong a defense, when those uses do not interfere with markets. From the introduction to the Best Practices for Media Literacy:

Courts have told us that copyright owners aren't entitled to an absolute monopoly over transformative uses of their works. By the same token, however, when a use supplants a copyright owner's core market, it is unlikely to be fair.

Courts are also beginning to recognize that the reverse is true too: When a use does not supplant a copyright owner's core market, it is likely to be fair even if it is not creative in the classical sense of that word. The recent Perfect 10 v. Amazon/Google case as well as other search engine cases illustrate how the weighing and balancing tips in favor of copying and distribution when its social benefits far, far exceed some marginal effect, if any at all, on peripheral or theoretical, or as I would argue, past, dead and gone, markets. That's what I find so exciting about what's happening in the markets, in business practices around digital copies, and in movements like open access for scholarly works. Copyright owners are indeed beginning to get it that controlling digital copies has not worked nearly so well as they hoped it would, and will not work as a long-term strategy to adapt to the digital environment because it pits them in a losing battle against one of the most important benefits of the digital environment. When giving away digital copies increases sales of other goods and services for which the copyright owner can reap more than sufficient reward to encourage new creative works, controlling copies ceases to have the desperate appeal it once held, and its exorbitant costs can no longer be justified. So I want to propose a new set of Best Practices, one for libraries: Best Practices for Fair Use in Adapting Patron Services (ie, Section 108) to Changing Technologies and Business Models. (Feel free to play with the title!) The Best Practices approach would be much better than attempting to amend the law in this area. I offer the Section 108 Study Group Report as Exhibit A to support my argument. Except for the fact that the representatives of cultural institutions held the line and refused to compromise the public interest, the results of throwing them and copyright owners into a room together for 3 years was pretty predictable: The view of those with more power prevailed over the view of those with less. The Report documents in almost 150 pages all the details of their disagreements about hyper-technical matters, and, sadly, brings to mind "rearranging deck chairs." Publishers repeatedly claim that libraries are their competition and that library copies must be controlled to protect publishers. As I read the Report, I couldn't help feeling that if publishers really did (and still do) believe that libraries offer them any real competition, then there's absolutely no hope for the industry. Surely they recognize that Google and Amazon are the only competition on the field as currently constituted that they or libraries ought to be worrying about. The Section 108 Study Report makes crystal clear that trying to change Section 108 won't succeed. The group was not even able to come to grips with the realities of how libraries archive works, replace copies, and supply copies to patrons and to other libraries today, to say nothing of how those practices are changing and will change dramatically over the next 10 years. The parties to the negotiation were locked into concepts of their roles that were far too rooted in the past, and explicitly (unabashedly) aimed at protecting industry business models that the public has not accepted and that the industries themselves are fast recognizing have failed. In contrast, the Best Practices approach simply seeks to document the flexible fair use practices that are actually in use today -- practices that have enabled libraries to functionally deliver services under Section 108's rigid, disorganized and antiquated conceptions of those services for decades. Our own interpretations are all we have had in the absence of a sensible Section 108 to deliver services, without affecting the markets for published works. We are delivering services. We are not affecting markets. All we need to do is document how we are doing it. We need to do that now, to demonstrate that there is simply no need to try to change Section 108. The market is changing, and Best Practices can and will change too. A revised Section 108, if the Study Group Report is any indication, will cripple adaptability by locking libraries and archives, and perhaps even museums, into even more elaborately rigid structures than the current Statute creates. Again, look at the Report. That approach simply is not the best way to document current practice or enable the changes right around the corner. We'll simply end up relying on fair use to fix what Section 108 gets wrong, again. So why not just start working on our Best Practices today?

Settlement controlled pricing and tests on effects of openness

2008-11-08T15:39:59Z

I looked around this morning for discussion of one of the points about the Google Book Search settlement that I consider among the most important, but I just didn't turn up anything. Granted, I only did a Google search and I only went through the first page of links (it's Saturday, I've got lots of things on my to-do list today), but this is a very big deal from my perspective and it doesn't appear to be getting even so much as a mention from, I guess I should say, most observers. It's the part about pricing, specifically, the settlement controlled price and the testing that Google is entitled to do to demonstrate that more (or less) openness yields greater returns for copyright owners. These terms are contained in sections 4.2 and 4.3 of the deal respectively. In my search I came across a nice summary (actually I came across many nice summaries) of the 38 page notice (itself a summary of the deal) and it has links to the settlement, so I'll reference it here for the hearty souls that want to read the details for themselves. And as usual, there's 10 times more information in a paragraph in a contract than a discussion of one of the points can deal with. This deal could keep us busy for years. Here's the summary: Google Book Search Settlement: Reviewing the Notice of Settlement | Disruptive Library Technology Jester. So, the deal gives Google "bins" to put books in for settlement controlled pricing. Copyright owners can opt out and set their own prices. But for those who don't opt out and who "settle" for settlement pricing, and that would include all orphan works since by definition, there's no one there to opt out, Google sets the price at a level that gives the optimal revenue. Google can adjust the price in a number of ways, but the goal is to maximize or optimize revenue. Add to this the right Google has retained to conduct tests on books to see how much openness yields optimal revenue. Wow! Cool move. Finally, a right to test out the theories, to demonstrate for different types of books whether openness sells more or less. Wow again. Gentlemen, gentleladies, place your bets... I went on and on in May about my bet that open will win over closed in general, for many, maybe most types of books, in a marketplace where free overwhelms paid by orders of magnitude. So, no surprise, I'm betting more open will return more revenue. I won't get started on why I think that here -- there's a link in CIP's Newsletter to the paper I presented at the Annual Symposium on the subject -- but I firmly believe that for consumers, the price to view digital copies is headed to zero. I my opinion about it, these two provisions can really accelerate a push to zero pricing for digital view. But how, you might wonder, could zero price for digital view return optimal revenue? I'm assuming owners sell added value, not digital view. What can added value be? Who knows. But I'm betting that, again, the stage is set to find out. Let's see, print on demand, print at all, sophisticated digital functionality, networked interactivity, right to commercially exploit, right to build services on top of, oh, gee, what else might someone who actually has the potential to make some money off these ideas come up with? We *will* see. This contractual right to test, to move, to shift openness and price to optimize revenue really is phenomenal. It builds on the market experience of decades (centuries?) of pricing by the publishing industry in the analog world with the sophisticated hypotheses, testing, and data generation and analysis that Google is able to bring to bear on the question of how to better exploit the digital networked potential, how to adapt to new possibilities and new opportunities without undermining revenues. Google's interest in the outcome is just different enough from the publishers' and authors' but just similar enough, to make the deal work. It's both a tenuous alliance, and fortuitous. The data holds the key to a way forward for publishers and authors that isn't quite so hypothetical as the various paths they see today.

Google Book Search and orphan works

2008-11-01T21:47:11Z

In Google Book Settlement, Business Trumps Ideals, reports Juan Perez in this insightful business article in PC World. Here's the quote that sums up the deal's novel approach to orphan works:

Of the 7 million books Google has scanned, 1 million are in full preview mode as part of formal publisher agreements. Another 1 million are public domain works. Most of the other 5 million aren't in print or commercially available. Google today can only show snippets of their text. The agreement opens up those books for broader preview and potential paid access via individual purchase or institutional subscriptions.

"Together, we're igniting a new market for these books that have been held in libraries but not available commercially," Google's Smith said.

So, what's so new? Everything. This isn't the Congressional approach to problem solving (shove the parties into a room and lock the door until they have reached an agreement -- and may the strongest interest obliterate the weaker and we'll call it a compromise in the public interest). This is the publisher's and Google's no nonsense business approach: "Hey, let's just start selling all the books and if there's money to be made, the owners will either show up to claim it, or the money will lie there for 5 years while we give everyone time to wake up and smell the coffee. At the end of 5 years, we'll pretty much know what's orphan and what's not. What's not to like?" At first I was appalled. Especially because the settlement terms provided that the information about who claimed what was going to be kept secret between Google and the publishers/authors (ie, the Registry). And equally as bad, if no one came forward to claim a book, as copyright owner, essentially the Registry would keep the money. There are provisions for the Registry to use it for x, y and z, and *if* any is left, it goes to a reading-oriented charity or some such. But I'm not thinking there's going to be any left... What do you think? Further, Google clearly understood and accepted that this plan was based on an idea I found repugnant: if orphan works don't have owners, by definition, then why is it that the Registry should keep the money that comes in for books that ultimately no one claims? The publishers and authors just don't see orphans as really belonging to everyone in the absence of an owner. They see them as belonging to all the other authors and publishers, but not the public. That really rubbed me the wrong way. After all, it's not the publishers and authors who have collected these books, maintained them, preserved them, and are now making it POSSIBLE for anyone to even have potential to find them and buy them by partnering with Google to make them a part of Book Search. Where do they get off claiming that they are entitled to keep unearned, undeserved revenues to the exclusion of everyone else in the world? "Ah, Georgia, uh, this is a rather innovative and practical approach to orphan works, probably better than anyone has come up with. Come down off the ceiling and think it through," said Alex. Well not in those terms. He was just honest and straightforward (as he always is) and explained that a deal with publishers and authors that started from the premise I favored (that orphans don't belong to anyone so if they generate revenue, it should go back to those who paid when it's clear the work is orphan) was simply not possible. So Google started where the publishers were willing to start and worked for a good outcome, the practical effect of the proposal on availability of orphans, and ultimately availability of information about which ones *were* orphans. Google focused on the fifth of those five years. That's why the secrecy thing had to be fixed. And it was fixed, but in my opinion, it's still not as good as it needs to be. I'm happy that in five years (from the approval of the settlement and implementation of the business model) there will (we take on faith) be some sort of way to pull together which books have not been claimed and more or less know what's orphaned of those works that were published in the 20th century. But the process by which a book is claimed needs to be transparent. If the public will not know whether claimants meet rigorous or absurdly simple criteria for proving their claims, confidence in the outcome of the process will fail. This has the potential to be very powerful -- or a joke. Maybe the court won't accept this aspect of the deal unless the transparency of the process through which claimants come forward and their claims are vetted improves. Imagine if the process of registering a copyright at the Copyright Office were secret and only the result, that a copyright was registered, were available. No actual registration, no basis for disputing whether a claim is valid. Many people anticipate a slew of murky claims to be disputed by various claimants (where, for example, no one is sure whether rights reverted, or sales of assets were not accompanied by clear copyright titles, etc.), but the whole idea of orphan works is that there's no one around to claim the work. This could make spurious claims easy to perpetrate because of the likelihood that there's no one to take you to task for fraudulently claiming. This worries me. I want this process to work. I think it has a much better chance of working than that piece of, uh, than that piece of legislation that nearly passed earlier this fall. It doesn't give us an answer today and it *only* deals with books, so it's not a comprehensive solution, but it might serve as an example of what works, assuming it does work. But libraries can still do their own research on individual titles that they think may be orphans while we wait for this deal's market incentives to do their job, and for it to become clear that transparency is in the owners' best interests as well as the public's. For example, I believe that the OCLC's Copyright Evidence Registry is just as important today as it was 5 days ago before Google announced this deal. Although the publisher/author Registry has potential to be definitive, there will be need for multiple sources of information about the copyright status of works until the publisher/author Registry earns its keep. No source that wants to be definitive can do so if it can't be trusted. In the absence of trust, we will absolutely need to view it as just one source of information, to be accumulated with other, hopefully more trustworthy sources, and then make our decisions, based on our own risk tolerance levels, what we're comfortable is orphan and what's not. Speculation is fun. But this deal offers a real living, breathing experiment for bringing orphan works to a new audience, and for bringing information about what works are orphans to light as well. The settlement is not written in stone. I know from working with Google as a Book Search Partner that Google doesn't work at the level of its contractual commitments. It sees those commitments as starting points and works up from there. If there are aspects of the settlement that threaten its value, they will be addressed. I think the transparency of the Registry process and outcomes is one of those elements.

Google Book Search -- and Buy

2008-10-31T13:25:24Z

So, at last, the cards are laid on the table and we see what everyone's holding. And guess who's got the winning hand! No surprise there. Google, by a landslide. (Whoops, my subconscious hopes for election day slipping in there...) It is absolutely fascinating to finally get to see the musings begin, musings about what this major business deal means for the future: the future of publishing, the future of the book, the future of Google, the future of libraries, the future of education. Well, let me rephrase that: What the major business deal *could* mean for all of the above, and more. Oh, that is the fun part. Imagining the possibilities. Imagining the potential. I'm an optimist and a true believer in the triumph of a good idea, no, a great idea. So, I want to point you to a couple of commentators that I think are especially exciting, illuminating, thoughtful. I have by no means scoured the blogosphere; rather, these are my heroes, my guideposts, the people I trust to present a point of view that adds value to the discussion:

Library Journal, quoting both blogs below plus several others; Vaidhyanathan's Googlization of Everything Blog; and Larry Lessig's Blog

And my own thoughts on and feelings about the deal are a combination of heartbreak, exhilaration, relief, pride, thankfulness, and gratitude to the libraries who worked so hard to make the deal a better one for the public interest. So it's finally out in the open and those who have been agonizing over it for up to two years can now be joined by the many, many others who are eager to begin to think through, together, what has changed, for whom, how, and what it means. Heartbreak: It hit me really, really hard to realize that Google utilized fair use strategically to bring the publishers and authors to a deal. My heart was in strengthening fair use. It has been for a long, long time. I felt betrayed, really hurt. But damn it, Google was right. It is right. This deal is way better for everyone, more value, more possibility, more of everything. For fair use to cover digitizing for indexing would have been nice, but it would not have given us this (and there was the chance Google could have lost, though I firmly believed Google would have won). Maybe we could have had both. A S.Ct. win for Google might also have led to a deal, but at much greater expense, much later. Google clearly felt it wasn't worth it, strategically, to add that piece to the picture. What Google did, worked. I got over it. Exhilaration: From my first reading of the deal, I saw amazing possibilities that just inspired me to no end (after the shock wore off, that is). I was in a semester in my PhD studies where I was trying to generate ideas for a dissertation topic and this deal just spun out possibilities like a tornado. But I couldn't talk about any of them with anyone. What a hellish place that was. The announcement of the settlement dragged on and on and on. The date was always a moving target. Eventually I stopped thinking about it all. I just gave up and moved on. But it is *so* gratifying to see such smart minds beginning to examine the same little gems of possibility, and now there will be lots of people to talk to about it, lots of research projects, and lots of thinking about the future of it all. Is that not absolutely exhilarating? Relief: Thank God the NDA (nondisclosure agreement) is finished. I'll never sign one again. You get to know incredible things, be a part of incredible things, but you can't talk to anyone about it. I hate that. Pride: I got to be a part of, a teeny, tiny, eensy, weensy part of, an unbelievably complex (way too complex for me) unfolding of a new way to share knowledge, the knowledge that is out there but that has been forgotten, or soon would be forgotten, if physical books on physical shelves were the only option we had for keeping it alive and integrated into our social and cultural lives. I got to react and say what I liked and didn't like. At least a few people listened. Maybe I made some difference. Maybe not much, maybe not any. But it was really wonderful to be there. (Cf. paragraph on Relief -- legalese for compare for a contrast, or contradiction, the paragraph above on Relief where I say pretty much that it wasn't worth the agony of the nondisclosure agreement -- I guess I'm torn about that.) Thankfulness: I decided to move on with my studies, as I mentioned above. I am thankful that this deal is finally out on the table and it will become what it becomes (not, what it could be, but what it will be). Gratitude: I know first-hand that it was extremely difficult for the libraries who put tremendous effort into making the deal better reflect the public interest. I was only involved for 10 months. Harvard, UC, Stanford and Michigan were involved for almost 2 years. Virginia got involved only a few months ago, but pitched right in and went to work. Others followed over the summer and early fall. It was grueling to receive those drafts, repeatedly, to pore over them, analyze them, pushing here, prodding there, gaining concessions from the publishers/authors (never easily, of course), gaining concessions from Google. Those folks worked tirelessly to imbue the deal with public benefit. In the end, not all were satisfied with the degree to which the deal does in fact benefit the public, but they had done the absolute best they possibly could. Everyone anticipates criticism of the deal in this regard, as there was before: did libraries sell themselves short? I frankly don't think it is possible to fairly critique their effort without knowing what they were up against, how tirelessly they worked, how little the publishers and authors ever appeared to appreciate how critical their collections are to the dollars the publishers and authors now expect to make. If one takes it as a given that this is a good thing (and a realistic, as opposed to idealistic and unrealistic way to get from here to there), libraries are not sitting at the head of the bargaining table, and they are not going to be able to get everything they wanted, or perhaps even much of what they wanted. But they sure put their all into it. It's not possible to walk a mile in their shoes. The walk is over. But I do hope that those who may be unhappy about the shape of the deal for the public (outside the obvious benefit to the public of discoverability, readability and the ability to buy "lost" books) won't be too quick to assume that any library could have done better. If the criticism is that none of us should have been involved at all, well, that's simply a non-starter. Libraries are not sitting the revolution out or trying to go it alone. Partnering is simply a fact of our lives. It always has been and always will be. We don't exist in a vacuum. I hope the deal gets approved and moves on to implementation. It's exciting. I want it to succeed. It puts lots of feet firmly on the path. Who knows where that path leads? And boy does that make me smile. Next time: orphan works, the sequel. Oddly, at the same time the publishers and authors were negotiating this deal with Google that structures access to orphan works in a particular way, they were also dealing with the Congressional effort to structure it entirely differently. What was up with that?