©ollectanea

An article in the New York Times titled Who owns the Live Music of Days Gone By? highlights not only the money to be made in procuring the rights to live musical performances from the past, but the litigation woes that are likely to accompany such endeavors. An entrepreneur named William Sagan (who started WolfgangsVault.com) is currently being sued by members of the Grateful Dead, Led Zeppelin, and the Doors, for streaming over the internet live concerts from days gone by that had been recorded by Bill Graham, a San Francisco concert promoter. Bill Graham's amazing collection of recordings of live concerts was sold along with his production company to Clear Channel communications, and later bought by William Sagan. Contracts (if they existed) for the recordings often did not clearly resolve the copyright issues that existed at the time, much less the issues for the future right to market the music in formats not envisioned back in the 60's.

Putting a much finer point on it than I did yesterday, Larry Downes compares the escalating efforts to rein in file sharing to various revolutions of the past: The revolution will be televised...on YouTube | Stanford Center for Internet and Society. He admits he's jet-lagged as he writes this, but that's one of the interesting things about being able to blog from anywhere at any time. Our first reactions are a lot more colorful than our polished drafts. I, for one, appreciate seeing the color from time to time, especially about a subject that can be as gray as copyright.

Judith Thomas does a masterful job of explaining best practices and challenges in creating a digital motion media collection in this article, Digital Video, the Final Frontier - 1/15/2004 - netConnect. I'm studying digitizing video right now at the iSchool, and this was an optional reading. I found it most inspiring because there's not one mention of copyright or rights or permissions in the entire article. It's simply not on the table. Wow. That's like a dream, isn't it?

Several years ago I was invited by the Library of Congress to participate in a 3 day discussion about digital archiving. The setting was in gorgeous Berkeley, CA at a fabulous hotel. The other invitees were a glittering array, including the Register of Copyrights, MaryBeth Peters. I gladly accepted, and I felt honored to be invited. But, a curious thing happened at the very beginning of the gathering. All the participants agreed that they would define the copyright issues out of the discussion. I don't know how the Register felt about this, but it made me feel a little under-utilized, to say the least (useless, puts it more bluntly). I was absolutely amazed at the quantity of ideas entertained, the quality of the solutions proffered, the creativity of the group. If copyright had been on the table, the group might just was well have sat around the pool gossiping. It would have been, in effect, a nonstarter.

Since that meeting, I've begun more and more to believe that for some things libraries need to do for the future, they just need to be done without much concern for what the law says today. The very idea that anyone who's job it is, or I should say who's mission in life it is, to preserve for posterity, simply cannot stand by and watch important pieces of the 20th century just crumble before their eyes because of fear of getting sued, more often than not, by someone who could care less what you're doing, or who's actually dead, or who's descendants could care less, etc. etc. etc. etc. etc. etc.

I noticed earlier today a post at Michael Geist's blog about a remarkable speech by Bruce Lehman, former Commissioner of Patents and architect of the DMCA, notably including the anti-circumvention provisions, in which he suggests that we're entering a post-copyright era. He also admits that the DMCA as an approach has failed...

This idea that copyright is becoming irrelevant is actually one of the things that contributed considerably to my decision to get a degree in information studies and refocus, away from copyright. It's just terribly out of sync right now and as much as I hate to admit it, I truly feel that it just has to be ignored in some of its more egregiously out of sync aspects. (I'm waiting to be struck dead by a lightening bolt... waiting... waiting...) This is like the moral dilemma of our time (for those of us who think about things like this), like civil disobedience. Defiant preservation, organization, indexing, and access. Will wrong-headed and failed laws go quietly into the night at some point, or do we just turn away and embrace new paradigms created on their ruins, such as Creative Commons licenses and new business models that rely on something other than artificial scarcity to motivate creativity? And will libraries just quietly do what has to be done?

Copyright genealogy has always been notoriously difficult. With no single, central registry keeping track of what was copyrighted, whether the appropriate formalities were followed, whether the copyright was renewed, whether the author is alive or dead, whether the copyright was transferred (by assignment, bequest, or otherwise) and to whom, or any of the other factors that might be relevant, it can be almost impossible to determine the copyright status of a given work. (Two good sites that tell you what you need to know are available here and here, but neither they nor anyone else can tell you where to look for all of the necessary information.) Indeed, this "orphan works" problem is so thorny that it took the Copyright Office more than 200 pages to describe it and a proposed solution in a recent report.

Some significant help is now available. The Chronicle of Higher Education reports that Stanford University has created a searchable Copyright Renewal Database, covering renewal registrations of books (but not other works) published in the United States between 1923 and 1963. That's a key period, as books published in the U.S. before 1923 are now in the public domain, and works published in the U.S. after 1963 were (if necessary) automatically renewed.

Many thanks to the Cardinal for this valuable service.

It isn't noted on my calendar, but it turns out that Monday is the twelfth annual World Book and Copyright Day, brought to us by UNESCO. Apparently, according to a statement from UNESCO's Director-General, it's intended as an "opportunity for political decision-makers, economic operators and civil society stakeholders [um, could that mean "readers"?] to pay tribute to that unique tool for expression, education and communication: the book." Oh, and "as there can be no book development without copyright, the celebration of the Day has always been closely associated, from its inception and throughout all these years, with an awareness of the importance of the moral and heritage protection afforded to works of the human spirit and their creators." Perhaps not quite as quotable as Jack Valenti, but I think I get the point.

Three recent, interesting, and quite possibly related news items:

Viacom has dropped its (successful) effort to have a parody of the "Colbert Report" pulled from YouTube, apparently acknowledging that the parody is a fair use under U.S. law.

In a lawsuit filed on behalf of 11 recording companies in China, where there is no DMCA, the "No. 2 Intermediate People's Court" has ordered Yahoo! China to pay $27,000 in copyright damages because "pirated" music could be located through its search engine.

And Michael Geist, a Canadian law professor, offers an interesting take on U.S. efforts to "export" an industry-centric brand of copyright law, including our longer copyright terms and "anti-circumvention" protections, but, apparently, not our concept of fair use or DMCA-style safe harbors.

This is indeed big news! The Library of Congress, as represented by newby Matt Raymond (7 months on the job) is authoring an LOC blog and, hey, it looks like it might be pretty good! Check it out: Library of Congress Blog (Library of Congress).

Those feeling a post-World Book and Copyright Day letdown will be pleased to learn that today is World Intellectual Property Day, sponsored by the World Intellectual Property Organization and intended "to encourage respect for the IP rights of others":

For many people, the connection between intellectual property and creativity is far from obvious. The word creativity conjures a world of artists and music makers, of poets and problem solvers. Whereas intellectual property all too often summons images of gray-suited lawyers, locked in litigation. But look more closely, and it quickly becomes clear that it is the intellectual property system itself which sustains and nourishes those creators.

If you aren't already partied out and would like to join in the celebration, WIPO encourages you to "organize concerts or other public performances centered around this year's World IP Day theme ["Encouraging Creativity"]" and "arrange for performers to deliver messages encouraging respect for creators and creativity", "mount exhibits at local shopping malls explaining how consumers benefit from strong intellectual property systems", or engage in any number of other fun and exciting "suggested activities".

If only my gray suit were back from the dry cleaner after Monday's raucous festivities . . . .

Sorry if I sound like a "broken record" about all this international stuff, but I really am intrigued by the United States government's seeming efforts to "export" a brand of copyright law that is less "balanced" than our own, and I have to wonder whether the plan is to then "re-import" it once it's firmly established elsewhere. But maybe, just maybe, I have it all wrong.

In celebration of World Intellectual Property Day, the U.S. State Department yesterday issued a statement under the heading "Copyright Violations Threaten Cultural Diversity; Local artists silenced when pirates steal revenues, industry representatives say":

Washington — Music, film and publishing industries from around the world lose billions of dollars annually due to inadequate legal protection of intellectual property, but the real victims might be struggling artists in developing countries, according to international organizations and government anti-piracy agencies.

And who are those "international organizations" so concerned about "cultural diversity" and the rights of "struggling artists in developing countries"? Among the most prominent cited are our own RIAA and MPAA. Indeed, copyright is "'a key tool for creating incentives for investment in the creation and distribution of cultural materials – and thereby promoting cultural diversity,' said Neil Turkewitz, executive vice president of the Recording Industry Association of America". Plus, while "American cultural products, such as music recordings and movies, are a frequent target, local industries and artists are the primary victims of inadequate law enforcement, industry associations say."

Good thing, then, that the "U.S. administration is leading an initiative called STOP – Strategy Targeting Organized Piracy -- to help protect intellectual property at home and abroad. It is posting specially trained prosecutors and FBI agents at American Embassies in Asia, Eastern Europe and other regions, and is working with other nations, the private sector and international organizations to promote strong intellectual property laws. Several U.S. government agencies, including the U.S. Patent Office, the Copyright Office, the Homeland Security Department, U.S. Trade and Development Agency and the FBI provide a variety of training and technical assistance programs on intellectual property protection for international participants."

Next up: Monday's issuance of this year's "Special 301 Report", in which the U.S. Trade Representative will outline the (in)adequacy and (in)effectiveness of intellectual property protections around the world and, no doubt, highlight our special concern for world music. Look for it here.

It was a big week for copyright. Events were reported all over the blogosphere. My friend and fellow grad student, Carlos Ovalle, has a nice roundup on his blog, Copy This Blog, where he reports several unsurprising legal opinions based in the sad music industry war against college students, and in a post a few days earlier, the related decision of Ohio University to ban p2p software on its system.

MPAA's former head, Jack Valenti, died this week. Lawrence Lessig offers an interesting memoir.

And the Stanford Center for Internet and Society posted a note about a decision that determined that downloads were not performances for ASCAP/BMI/SESAC royalty purposes.

Tobe Liebert, one of my favorite law librarians (I have lots of favorite law libraians -- our UT Law School Library is one of the best!), posted a note about Siva Vaidhyanathan's explication of his position regarding the three serious dangers of the Google Book Search Project, well articulated and succinct. His argument raises important questions about a future that includes wildcard projects like Google Book Search. If you have a chance to see Siva in person, don't miss it.

On another note, I am winding down my first full year of grad school. Classes end next week. Papers are due, presentations will be made, files of printed articles will be dumped (recycled, of course). It has been a really amazing experience for me, one that still astonishes me, nearly 9 months into it. I'm registered for the summer session and for the fall. I shift focus next year to research, having been accepted into the Ph.D. program. In the meantime, I head off to France to do a little bit of research, sort of getting my feet wet in the Seine (and the Cote d'Azure). Whatever I conclude based on my little sojourn will be reported through the CIP, perhaps even here on the blog. I'm going to write a paper, though I have to admit, I call it that only reluctantly, because I am planning to put my money where my mouth is -- I'm focusing on the future of the book, and I'm going to place all my research data, analysis, results and predictions in forms that explore that future. So, it will be fun, as well as instructive for me to figure out novel ways to report research in progress. I hope you'll enjoy that exploration too. The future of libraries is affected directly by the future of books so it is in our interests to pay attention to the expansion of the expressiveness we experience in books today.

The folks at American University's Center for Social Media, who have been doing good and interesting work on the subject of fair use in documentary filmmaking, have lately turned their attention to "participatory media". In a recent study, "The Good, the Bad, and the Confusing: User-Generated Video Creators on Copyright", they found some disturbing results. College students and recent graduates who create and upload videos to such sites as YouTube "showed themselves universally under-informed and misinformed about" copyright law and fair use, tending to think in "binary, good-bad categories" about what is and is not permitted:

In fact, respondents generally did not understand elementary facts about copyright, even though several noted that they had received both training and warning from professors about copyright use. . . . Although the great majority of survey respondents (76 percent) believed that the fair use doctrine permitted them to use copyrighted materials, none of the interviewees was able to describe this doctrine accurately. Two said that it stipulated a fixed amount of time, e.g., "over 15 seconds of someone else's song," or "less than 10 seconds." Another said that fair use is available "for purposes of public education," still another "if it's for a class project." The majority indicated that fair use would apply if there is no commercial transaction. "I believe in fair use laws," one said. "If I create something as an academic exercise, and never pursue monetary reward, then I believe I should be able to utilize other people's work." None of these beliefs is accurate. . . . [One] distinction on which respondents relied to justify or explain their practices was between an obligation to pay and an obligation to give credit or recognition. While payment was largely unjustified in their opinion, these users were very concerned about attribution as a sign of showing respect for artistry.

Even more disturbing: more than half the participants were studying or working in communications- and media-related fields.

To be sure, copyright law is neither clear-cut nor intuitive, but you'd like to think that all of the copyright education we've been doing in connection with P2P file-sharing would have had at least a little impact, particularly on those students interested in pursuing careers in copyright-intensive industries. But whether they result from simple lack of knowledge about, or self-rationalizing lack of respect for, copyright, it's views like these that fuel industry and Congressional calls for tighter restrictions and increased protections.

A fellow Texan, and a fellow Ph.D. candidate (at North Texas State University), Brian Kenney gave a lecture about 2 weeks ago, ALA TechSource | Does Print Still Matter? Brian Kenney on the Future of Content in a 2.0 World, that really piqued my interest. He has much to say on the subject of the future of libraries, and I recommend that you read the ALA Tech Source article about his talk. But the thing that really caught my eye was an example he used of a traditional publisher successfully integrating Web 2.0 social technologies into its online publishing for the most part, sans DRM -- The New York Times. I visit this site all the time. Many of my bookmarked pages are Times articles. The permalink feature allows me to preserve my links to the articles even after they would normally enter the Times' archive and require higher levels of subscription service to access them than I enjoy. Kenney points out that the Times uses other means to attract and keep customers on its site:

Kenney discussed the move by The New York Times into the 2.0 world: "...once on the site, stickiness abounds. Comments are invited on features. Video and audio extend the text content." Kenney noted there are over two dozen blogs integrated throughout the site, ranging from "Bats," about the upcoming 2007 baseball season to "On the Runway," offering a behind-the-scenes look at the fashion industry. "Most significantly," he said,"other users serve as guides to Times content. Tag clouds crop up. You can view the most popular articles by those most emailed, those most blogged, or by most popular search terms."

This integration of the user experience--and opinion--radically changes the construct of the traditional newspaper, which has relied on an editorially created hierarchy based on placement within the publication. "Real estate, in print, is everything, that and the font size of headlines," Kenney said.

This contrasts sharply with the approach of most publishers in the print world exploring business models on the Internet. Most ebooks are DRM heavy, one of the factors contributing to the lackluster performance of the genre.

The Times example also points out the decreasing importance of control in general, even to highly successful old-media businesses. The NY Times makes it easy -- not difficult of expensive -- for readers to reuse and refer to its content. Contrast this approach with some of the restrictive user licenses libraries must agree to in order to make electronic resources available to our constituents. I suppose it is just the natural evolution of business models given the shock of the potential unleashed by the Web, and that things take time. Nonetheless, it is encouraging to see such high-profile examples of publishers inviting users to make use of content, instead of asserting copyright as both a sword and a shield, when it is now possible to be profitable without so inhibiting use and enjoyment.

In thinking about contributing to a blog, my first thought was to think about the copyright problems that blogs themselves may actually have. Clearly, in reproducing copyrighted works for inclusion in a blog raises all of the normal copyright issues. Fair use may apply, but the larger the portion of the work used, the less likely fair use will be found.

Some copyright owners have considered whether to contact bloggers to notify them of infringement of their works. Apparently, the jury is out on this issue -- at least among those who responded. Some answered that most bloggers are totally unaware of copyright and licensing and others advised that even college students today had at least a rudimentary knowledge of copyright. See http://www.lightstalkers.org/widespread_copyright_infringement_on_blogs

There are several blog entries I read that discuss various copyright issues:

1. Copyright ownership in blogs

Issues of copyright ownership should be straightforward, but many who blog are encouraged to do so by their employers. This may raise the issue of who owns the copyright in the blog and turns on the work-for-hire doctrine. More and more companies are developing policies that relate to blogging by employees to address a myriad of
liability issues but ownership of the content is also of concern to these companies. There seems to have been no litigation over ownership, however.

2. Quoting material

In 2005 a boingboing post discusssed the fact that bloggers quote liberally from mainstream media and that it would be difficult to blog were copyright strongly enforced against blogs. The posting pointed to norms that have developed in the blogosphere with little enforcement of copyright. The posting muses that this could change.

3. Music

In December 2004 Richard Slilverstein posted a message at: http://lists.ibiblio.org/pipermail/cc-community/2004-December/000226.html
concerning his mp3 blog expressing the view that because his blog was noncommercial and because he was a one-person operation, he had not sought permission to use the songs he uploaded. The songs are world and folk music, and unfortunately the blog is no longer available. He indicated that many musicians and record labels objected to blogs such as his. He wondered whether he should "do the right thing regarding copyright" or if the fact that he had little time to do so might excuse him. Perhaps the fact that the blog he ran is no longer available answers the question.

Other music blogs use short clips only and perhaps might be considered fair use. See http://copycommaright.blogspot.com/

4. Other legal issues

Two other interesting legal issues have been raised with blogs: (a) liability for defamation in the content and (b) disqualification of jurors blogging during a trial.

The Electronic Frontier Foundation has an faq on online defamation aimed at helping bloggers understand the law regarding defamation. Because defamation law developed around the concept of mass media in the form of newspapers and television, it is not so clear how the law applies to blogs.

Who would have ever thought that juror currently sitting on a jury panel in a trial would blog about the trial and his experience as a juror? Well, it has happened. See March 12, 2007, The National Law Journal. There are blogs that discuss jury duty but most jurors know now to disuss the trial in which they are serving as a juror. Apparently, many courts will now add a "do not blog" mandate to their jury instructions.

Well, now that I have reviewed some do's and don'ts about blogging -- don't infringe copyright, don't say ugly things about anyone and don't blog about a trial while sitting as a juror in that proceeding -- I am ready next to post something about copyright. Stay tuned.

Lolly

An interesting little brou-ha-ha has erupted at Harvard over the effort by students to provide materials the University makes available through an official portal, in alternative ways. As explained at The Chronicle: Wired Campus Blog: No Course Material Allowed on Student Site, Harvard Says, and elaborated a bit in the comments, many issues are mixed into the controversy.

It is not always so obvious to some that course materials that are available only behind password protection, are there because institutional rights to use them are limited, either by the terms of Harvard's licenses with the suppliers, or by the doctrine of fair use to the extent, if any, that Harvard relies on fair use to provide course materials to students in electronic formats. In either case, Harvard probably would be liable for its failure to protect the interests of the copyright owners in those works, either under its contracts, or under copyright law, if it failed to act in the face of complaints from the copyright owners.

There are branding issues also. The Harvard portal is appropriately adorned with Harvard's logo. The student site raises significant trademark use issues, but again, not everyone knows or fully appreciates these issues.

So, we are educators. Why not use this event to teach those who are clearly eager to create some of the rules of the road for creating? This is the perfect "teachable moment," as we in academe would say. We have here energetic, creative, positive students who see something they think is a problem and who do more than simply complain, or grumble about -- they actually invest their own time and energy to demonstrate what they believe is a better alternative (that's debatable of course, but frankly beside the point here).

But it gets even better: When one factors in the incredible power of Web 2.0 capability, not only are the students in line to learn something about intellectual property law, but Harvard (and all of us) are in line to learn something about the potential reach and value of information we have on our servers if we will open it to opportunity. Aside from the information that we must protect by limiting its access, there is a wealth of information on our servers that we could open to other uses. This is a great mutual learning opportunity, one I would jump on like a duck on June bug if I were there! This kind of thing doesn't come along every day.

Jack Valenti, former long-term chair of the Motion Picture Association of America, died at the end of April. His passing made me reflect on a number of issues.

For years Jack Valenti lead the charge for copyright holders championing copyright term extention, especially for motion pictures. He was a well known figure in copyright law and is remembered fondly by many. Valenti presided over the MPAA from 1966-2004, a remarkably long tenure punctuated by amazing technological changes.

I remember him primarily for some of his more outlandish statements which may have contained a grain of truth.

(1) After the Sony decision, Valenti announced that the Betamax would be the death of the motion picture industry. He totally missed the video rental business that played a major role in ensuring the continued economic viability of the movie industry.

2. In support of the 1998 Copyright Term Extension Act, Valenti testified before Congress that a copyright term "one day short of eternity" satisfied the limited times provision of the U.S. Constitutution. Many of us believe that a much shorter term is called for by the Constitution.

Mr. Valenti's stalwart efforts on behalf of the motion picture industry sometimes resulted in interesting jokes. After the CSS encryption code was broken and MPAA members successfully sued website owners who even linked to the DeCSS decryption code (see Corley)
programmers found many interesting ways to use the code to produce other copyrighted works such as T-shirts, haiku, square dance songs, dramatic readings and my favorite, a stenograph with the DeCSS code embedded on a his photograph.

While those of us who work in the public interest for strong fair use privileges for users of copyrighted works may have disagreed with Valenti on almost every issue, it is clear that he served his community long and well.

His autobiography, This Time, This Place: My Life in War, the White House, and Hollywood, is due out this fall.

If you have loved the webcasting royalty wars and threats to Internet radio -- stay tuned! It appears that once again the recording industry is gearing up to lobby Congress to expand public performance rights to regular (terresterial) radio.
See Hollywood Reporter, May 9, 2007.

For long and complicated reasons, sound recordings do not have public performance rights. When radio stations pay royalties for playing records on the air, the blanket annual royalties they pay to ASCAP, BMI and SESAC go to the composer of the musical composition performed on the recording but not to the record company or performers. Over the years, the recording industry has lobbied to provide peformance rights for sound recordings.

In 1995 and then again in 1998 the recording industry was successful in getting Congress to provide provide performance rights for sound recordings when that recording is transmitted via digital means. The result was an amendment to Section 106 which added a new subsection (6) to the Act. Then the fun began with disputes over royalties for webcasting and including sound recordings on websites.

Now that the recording industry is receiving performance royalties for digital transmissions of their recordings paid to Sound Exchange, one might think they would be satisfied -- not so apparently.

Both record labels and artist groups now want performance rights for sound recordings played over terrestrial radio. The Recording Industry Association of America (RIAA) is leading the charge along with some other associations and SoundExchange.

Heading the opposition is likely to be the National Association of Broadcasters.

Mike Madison discussed this in his blog a couple of days ago. See Madisonian.net. Mike raises some interesting philosophical questions to which I am adding some additional ones.

1. If public performance rights are afforded to copyright holders, why should sound recordings be excluded generally? In other words, why award rights only for digital transmission of these recordings?

2. Is the major objection really that the public has come to expect free terresterial radio? Somehow radio stations have been able to pay royalties to the composer for years and years.

3. Are the real objections based on how high the royalties are likely to be based on the webcasting royalties? It is estimated that many college radio stations and other small broadcast entities will not be able to afford performance royalties for webcasting and thus will not webcast at all. If the same is true for terresterial radio, will stations simply disappear?

4. Don't record companies earn enough money from sales of their works both in CD and as downloads and in going after P2P file sharers?

5. Will television stations be the next target? They also pay annual ASCAP, BMI and SESAC royalties to the composer.

6. Because other countries provide public performance rights for sound recordings generally, does it mean that the United States should do so?

7. Should there not be some focus in this debate on what is good for the public?

Educational institutions will be affected by this issue through the college-run radio stations, Stay tuned!

Just noticed an interesting entry at the Institute for the Future of the Book (if:book), if:book: chromograms: visualizing an individual's editing history in wikipedia that connected up for me with an article I had read earlier at Peter Brantely's blog, shimenewa, Recontracting authors' rights.

Peter was commenting upon the marvelous possibilities for research that open access provides -- not merely access to results, but access to a rich data treasure that can be mined for connections, where the value is in the collection rather than the individual work. The if:book note is about just that kind of mining: researchers at IBM are mining the very open Wikipedia for information about how editors work, how they manage a peer production project.

Open access is not an end in itself. It is instrumental. It admits possibilities that no one has thought of today. These possibilities are the heart and soul of research. Open access enables the heart and soul of research. Freely accessing others' writings is not the payoff for open access, it is a small, first step, a door through which creativity enters. It is worth pursuing. It is worth spending scarce resources to make it possible, not so an article can park itself in an institutional repository, but so that someone who isn't yet born can connect up some dots some day because the article and a gazillion other things were there for her to ponder, search, mine, analyze, ...

Over the past few weeks, it has been interesting to watch the news about YouTube. Only this morning NPR reported that the Department of Defense was barring use of YouTube by our troops in Iraq. My mind raced -- because of copyright infringement? But no, it was because soldiers are using too much bandwidth.

There are serious copyright concerns about YouTube, of course, and now media companies are suing for copyright infringement. When YouTube began hosting the equivalent of home movies, it was great! There were no copyright concerns because the work being posted was original. Quickly the posted videos began to include music to accompany the video, and recorded music at that. Clearing the rights to include music to accompany a video is very complicated and my guess it that most posters did not clear the rights. One would have to clear rights with the composer for the performance, the synchronization rights for playing the music with the video and with the owner of the sound recording copyright for reproducing the work and for digital transmission of it. And that is just the music!

Now YouTube often includes standard television shows, TV advertisements and motion picture clips. While it is wonderful to be able to catch these on YouTube, does anyone really doubt that it is copyright infringement? Copying and transmitting an etire work? Even clips which might be fair use in some instances are unlikely to be fair use based on the four fair use factors. Face it, the purpose of YouTube is entertainment -- entertainment that I enjoy very much, but we all have to recognize that posting copyrighted works without permission is infringement.

Lolly

With the purchase of YouTube by deep-pocket Google, litigation over copyright infringement is likely to increase until and unless YouTube does develop software that adequately screens out copyrighted works and prevents their posting.

Last week the 9th Circuit held in the Perfect 10 v. Google case that use of thumbnail images for a visual image search engine is fair use. Does this sound like de ja vu? Well, in early 2006 a California federal district court appeared to ignore the earlier holding by the 9th Circuit in Kelly v. ArribaSoft which first dealt with the issue of use of thumbnail images in a visual image search engine and found that use was fair use.

Perfect 10 publishes images of nude or nearly nude “natural” women. It sued Google for copyright infringement claiming that Perfect 10 had a new market for thumbnail images – for use on cellphones. Instead of buying the image, however, users could now download the thumbnails from Google. [Don’t even get me started about why anyone needs an image of a”nekked” woman on a cellphone as a further distraction when driving an automobile!] The district court in Perfect 10 was persuaded that Google’s use of the thumbnail images likely infringed Perfect 10’s copyright and issued an injunction. The 9th Circuit has now reiterated its ArribaSoft holding: use of thumbnail images in a visual image search engine is fair use.

Moreover, the court noted how important search engines are to the public. It also highlighted the fact than any potential lost sales of thumbnails was speculative at best. The court’s decision also seems right on technology grounds: a frame or in-line link is not a reproduction but is merely a pointer to the site on which the photograph is displayed.

So, this raises questions for me about the Google Library Project and how its associated pending litigation may be affected by the Perfect 10 ruling. Is copying an entire book fair use when the purpose is to create an index and no user would be able to access the entire book? Are search engines so valuable to the public that a court will hold that the reproduction that normally would have been problematic is now fair use? Is this the way all indexing will be done in the future and thus technology dictates a similar ruling?

Over the past few days, a very interesting discussion has taken place on the listserv for Intellectual Property professors, and that is whether a work must be complete before it can be infringed. Examples of musical works such as jazz compositions were discussed along with early versions of literary works. This made me think about libraries and archival collections that hold literary manuscripts. Certainly, in the United States, before a copyright owner can sue an infringer, the work must be registered with the Copyright Office.

Suppose that an author donates a manuscript to a library and then continues to work on the novel, produces several more versions and then publishes a final unregistered version on a website. If the author registered the copyright in the version of the work contained in the donated manuscript, and someone infringes the later novel, does the earlier registration provide statutory basis for suit against the infringer? Murray Hills v. ABC Communications, 264 F.3d 622 (6th Cir. 2001), held that registration of an earlier version of a work will not support a claim of infringement against a later derivative version of the same work.

However, it likely depends on whether the infringer copied material only from the later version that does not appear in the donated manuscript version. Should authors register successive versions of a work? Perhaps, but this would be rare in the world of literary works.

This has some importance for academic libraries and other archival collections that receive donated copies of works and seek to reproduce them for reserve collections rather than use the later published version for which the library would have to seek permission at some point. (Now, lets assume that the published version is registered for copyright but not the earlier donated manuscript version.) Librarians have often asked whether using earlier versions for reproduction avoided this question assuming that later versions are separate works. Typically, later versions are not separate works. If the material in the donated earlier version later does not appear in the published version, then perhaps they are two separate works, but this is not the normal way in which authors work.

Thus, libraries really cannot rely on donated earlier manuscript versions of published works as freeing them from copyright concerns. The only exception is if the earlier version is so different from the published version that it truly is a separate work.

A nonprofit organization recently challenged the Smithsonian Institution’s use of copyright notices and other warnings in conjunction with its images on the Smithsonian website. The Smithsonian is a government entity and section 105 of the Copyright Act states that copyright protection is not available for “any work of the United States Government.” If the image is produced by an employee of the Smithsonian, why does it claim copyright?

The question is a bit complicated, naturally. Works produced by Smithsonian employees who are federal employees are considered to be in the public domain. Trust fund employees who create works may result in a copyrighted work which the Smithsonian may own or may share with the employee. See Protection of Intellectual Property.

Nonetheless, when one goes to the Smithsonian website to view the images, there is a detailed images copyright policy http://www.si.edu/copyright/ which begins by saying the “Content is protected by Intellectual Property Laws” and is the property of the Smithsonian. On the other hand, fair use is permitted. (Is that not the law for copyrighted images?) More importantly, if the Smithsonian is a government entity would the works not be in the public domain anyway?

A detailed Image Reproduction Fee schedule is available on the image pages on the website.
Again, if the works are public domain why the fee schedule? The following statement appears on the Permissions page:

Licensing and imaging fees directly support our collections and projects. Licensing also helps to maintain the integrity of our collection by regulating where and how our images may be used. Smithsonian Libraries provides free and open access to its digital images and the images may be freely downloaded for personal, research and study purposes only.

No wonder there is some confusion about whether the Smithsonian Institution claims copyright in its images.

On May 19, 2007, Public.Reource.Org announced on its website that it had taken matters into its hands and downloaded almost 6300 Smithsonian images “of national significance” and uploaded them onto flickr.com. Its stated purpose in taking this action is to get the Smithsonian to adopt an online distribution of images policy that is better aligned with its mission.

The Smithsonian’s fee for use of images raises many issues for libraries, archives and scholars who want to use images in their publications. Are these publications commercial? Does a scholar who uses an image in a scholarly monograph need to pay the fees because the book is published by a commercial publisher? More importantly, should these images not be in the public domain – they are part of our national heritage.

There are many rewards, but also certain obligations that come with public status. Just as the U.S. Congress could not turn the video from congressional hearings into copyrighted materials, so our Smithsonian Institution lacks the right to encumber the public domain that is our nation’s attic.

See Public.Resource.Org

I have just returned from a nice 2 week stay in France where I conducted a little research on the French attitude towards the future of libraries in a networked world. In light of the scathing book Jean-Noel Jeanneney, President of the Bibliotheque Nationale, had written earlier (Google and the Myth of Universal Knowledge) criticizing American digitization efforts spearheaded by Google, I wasn't all that sure what I would find. But, I've concluded that the bell curve obtains in France just as it does here in the USA (the long tail doesn't describe everything). French libraries are all over the map with respect to their attitudes towards and adoption of strategies to define their futures.

While I was there, Google announced its first francophone (french-speaking) library partner, the University of Lausanne (Switzerland). In commentary on the French blog, "Under the Duster," it was noted that the Swiss had not spent a cent to digitize their patrimony: Google numerise en Suisse romande - Sous la poussiere. I have no basis to judge the accuracy of such a statement, but it does not surprise me. The effort to digitize cultural history is overwhelmingly huge. It requires support from every sector. It can't be accomplished by governments alone. It can't be accomplished by libraries alone. It can't be accomplished by Google alone. It hasn't taken very long for us to figure this out. I think it's time for us to move beyond critiques of those who are making the effort and start to think about things further down the road, as Don Waters suggested in a recent essay about strategic thinking regarding our efforts to facilitate open access to scholarship. The availability of long-forgotten books online, or at a minimum, the availability of information about them and where they can be obtained, is a dramatic change and we need to start thinking about the implications of this and how to best take advantage of it.

Finally, it's important to note that the European Book Search partners have limited their participation to books in the public domain. This is not a surprise -- no other country in the world has a fair use provision like ours, or, therefore, an opportunity to argue the merits of mass digitization for books still in copyright as a fair use. We are on our own here, completely. Very American.

I don't often lose sleep over copyright issues anymore. But last night I could not stop thinking about the Copyright Office's new resource for *children.* Please have a look if you haven't already: Taking the Mystery Out of Copyright. There's a text only version if you want to skip the cartoons and the music (assuming you are not 13). This bothers me on so many levels, but I'm only going to address one level here, the most obvious. My experienced, calm, collected voice is telling me to wait a few days before I write this. Ok, at least wait a few days before I publish it. Clearly, I am ignoring that voice. I should at least acknowledge that I'm probably overreacting. I no doubt will feel differently about it after I have thought about it for awhile. Maybe I'll write about it again after a few days.

That said, do children really need to know about copyright? Well, I reluctantly must admit that yes, they do. Should they need to know about copyright registration, copyright history, and the role copyright plays in protecting film, music, art and literature? Well, it's not like they need to be protected from this, like it was senseless death, war violence or something cruel and ugly. So, it is commendable that the Library of Congress offers a well-done, straightforward, and fairly neutral informational piece. What would we expect the Library to talk about, other than what it does, which is, in this case, copyright registration. A narrow slice of the copyright pie, to be sure, but again, that's one of the things the Library does that no one else does.

But on the other hand, remember what it was like to be 13? Was registering your copyrights something you were all that concerned about? Should you have been? Have things changed that much with respect to how likely it is that the metaphorical box of things you created during your 13th or 14th year of life needs protection? From what? From becoming part of the stream of creativity (my metaphors are all over the place) from which you yourself borrowed to create?

If I had one opportunity to tell kids about copyright, I suppose I would mention its role in protecting the commercial interests of creators and distributors like the film, music, art and publishing industries, but in the next breath I would appeal to their own sense of how most things we all create are not meant for commercial exploitation, but instead are meant to be shared, reused, remixed and borrowed from. I'd say, "Look inside that box of things you created last year. Let's look at where all your things came from. Let's see how borrowing and modifying and adding your own ideas works in real life, and what we all need to keep that going."

The lesson I would teach is about the fact that *YOU HAVE TO DO SOMETHING* if you want your own creativity to be added to and be a part of a flowing, lively stream, rather than be caught up in a little eddy that goes nowhere. Congress (something here about infinite wisdom) has created a set of rules that, without your doing anything beyond the mere act of creating (tangible things, of course), keeps everything you create in that box, locked away, maybe forever, but at least for, let's see, you're 13? Let's say you'll live to 78, your box of stuff stays locked away for the rest of your life (65 years) plus 70 more years. Yes, in 135 years your box of stuff will possibly join the stream of creativity. If the box is still around then. And somebody finds it. And they know you and only you created it, and when you died. And they know about copyrights. If that doesn't fit your idea of what you want, then YOU HAVE TO DO SOMETHING. You have to let people know that you have something else in mind for your box of stuff. Fade to Creative Commons logo/website.

The assumption that everything needs "protection" for 1 1/3 centuries is so out of step with the reality of how we all create and most importantly, *why* we all create (overwhelming, not to make a living from our creations), and the serious consequences of being out of step with reality makes me very sad, and angry. The waste, the untapped creativity, and the criminalizing of creativity cannot be defended in my opinion. One size does not fit all. Given the enormity of the explosion of creativity enabled by the networked environment, to say nothing of creativity in the real world, the lessons we need to teach are about taking responsibility to do individually what Congress cannot seem to do for us as a nation -- create a copyright that fits our widely divergent needs, rather than one that both stifles us creatively and turns us into criminals (or potential civil litigants -- there's another interesting copyright lesson for kids) if we ignore it. We need to tag our creative works with simple statements that express how we feel about their place in the creative stream. I would recommend Creative Commons licenses for many reasons, but any statement about sharing is better than doing nothing and thereby consigning your work to copyright's centuries-long holding bin, or perhaps appropriately named, wastebasket.

Lawrence Lessig has formally announced his decision to turn his attention to new pursuits: Lawrence Lessig: Required Reading: the next 10 years. Of course those of us who have looked to him for guidance and inspiration are sad to lose his incredible mind, his voice and his energy in the effort to bring copyright's plight to the attention of a broader audience. It is no doubt due in some part to copyright's relative obscurity that things have gotten as out of balance as they now are. And he's right: he has accomplished miraculous things. Whether others will pick up the mantle and be as effective as he was, or perhaps even more effective, only time will tell.

But I for one applaud his measured determination to address himself to new challenges. He said, "I had learned everything I was going to learn about the issues I've been working on ..." There seem to be people who can devote themselves with unflagging energy to the same thing for a lifetime. And then there are others who just can't do that. Are we really made of different cloth in this regard? It's an interesting question, but for those who feel a need, after awhile, to do something new just because it's new, it's almost like a survival imperative. You start to fall apart, mentally, if your brain activity keeps going down the same paths for too long.

Learning new things is one of the greatest joys of life, maybe the greatest joy. We all do it at some level I suppose. Lawrence Lessig is doing it at a very high level. He talked about becoming a beginning again. Zen celebrates the beginner's mind, but once one is as accomplished as Lessig, being a beginner again takes courage. He has always shown himself to have no shortage of that virtue, however.

I loved his references to Al Gore as an inspiration, but in a way, by contrast, Lessig might be saying that Al Gore gave up on the very task that he (Lessig) plans to tackle. Gore seems to have concluded that it is not just difficult, but *impossible* to make some things happen within government, and one might include among the impossibilities, changing that fact itself. Or maybe it's just that Gore felt that in a given amount of time, he was more likely to accomplish what needed to be done with regard to environmental responsibility than what needed to be done to make government more responsive to the public good than it is to moneyed interests on this issue (or any other issue for that matter).

In any event, I wish Lessig unbounded success in his new undertakings. It will make a marvelous story some day, to tell those who never knew him of his life, the times in which he lived, and the things he accomplished. Somebody better get started writing it!

Are you anticipating the launch of the iPhone in two days? Are you at this moment in a line to buy one? You could be. You probably aren't. But if things go even a little bit like everyone is predicting they will, the iPhone will change your life whether you have one or not. Take, for example, the post at Print is Dead: Books in Our Digital Age ｻ Apples and Changes: What publishing can learn from the iPhone. The author sees the triumph of the multi-use device as the big story here, with profound implications for publishing.

I don't disagree, actually, but from my perspective, it's another example of the triumph of "show me the money." Once any content industry figures out how it can make more of it from letting loose than from holding tight, it will let loose. Copyright won't have to change for this to happen. It will just slip into the background from whence it came (before the Internet).

I had just read a few minutes before the Print is Dead blog post, that Harry Potter is making more money from sales and licensing of things other than the actual book. Granted, a toy Harry is probably protected by intellectual property rights too, but the toy Harry is holdable, carryable, posable. He can be digitized, obviously, but he becomes something else when he's digital. He has an additional value as a thing, and his sales success can take the pressure off making profits on the book content itself, that can be digitized (and over which you lose control if you digitize them).

So these two stories come together: the iPhone implication is that a multi-purpose media device is the missing link, that once it's widely in use, publishers (and Hollywood and everyone else) will understand why the stand-alone reader never succeeded, publishers will begin to respond to or even anticipate consumer demands and migrate to networked social environments and the difference between a book and the 'net will gradually fade away, entirely for some genres, not entirely for others. And copyright doesn't need to change for any of this to happen. It just becomes less relevant to the business of making profits, so it's not always necessary to assert it. So the theory goes.

Chapter II: next installment to follow after a year or two of iPhones ... In other words, "we'll see."

I wanted to provide a heads up to readers of our blog that I'm going to move the Copyright Crash Course to the University of Texas at Austin's Library Website later this summer. I haven't been able to effectively work on it since leaving the Office of General Counsel, and the entire University of Texas System Website is undergoing a redesign this summer, so it seems like a good time to make a transition.

If you have ever used the Crash Course and have any suggestions, I would very much appreciate hearing from you. The update I plan involves a complete reorganization and a shift in emphasis more towards scholars and graduate students, including more information about scholarly publishing and all that's going on in the world of digital networked communication. The information for librarians will be consolidated and updated too.

I will archive the existing site at some point, but will not want it to be crawled. Since attending the School of Information, I've acquired tremendous awe for the challenge of archiving born digital materials.

I'll formally announce the move after I have the new url. I won't be able to do the redesign before announcing the move, however, so it will be in its current form at the new location probably for the rest of the summer. That means that there is lots of time to work on changes. Again, if anyone has suggestions, I would love to hear from you, either here, or directly.

I read a press release on the Liblicense listserve this morning from Wiley-Blackwell announcing a new series of journals: "Wiley-Blackwell Launches Review Journals in Social Sciences and Humanities -- Cutting-edge functionality added to Compass journals," the title read. I went to visit the site (Compass Journals and glimpsed the future of publishing in a world of open access (OA). Many people still vigorously debate whether OA will result at some point in library cancellations of journal subscriptions. Theoretically, if all journal articles are freely available on the Web, why would a library subscribe to a database containing them? Sounds rational enough, enough to cause any thoughtful publisher to 1) resist OA or 2) accept OA and find a way to build a business on its back with customers you already have ...

Publishers are doing both. In addressing their admittedly different but pretty much parallel challenges to copyright control, so is Hollywood (see Lawrence Lessig's OpEd piece in the Washington Post. At last, so it the music biz.

I don't believe that resistance will thwart OA (or remixing, or p2p file sharing). OA has such obvious advantages for the "progress of science and the useful arts" to borrow a line from the Constitution. Nevertheless, resistance slows it down long enough for the new business models to start to take shape. Far from saving libraries money, however, OA is going to be a gold mine for publishers who can offer brave new services built on the treasure trove of high-value articles that are going to be out there free for the taking.

Is this a bad thing? Certainly not. It's the American Way (at least), and libraries will buy the services (rent the services actually), and prices will continue to spiral like they always have because that too is the American Way. If you are not growing (profits) you are dying.

Debate about this seems academic at this point. While I'm not that concerned about the future of Hollywood or the music biz, I do care deeply about the future of scholarly publishing and I applaud those at the helm of our University Presses who spend as much of their time as possible concentrating on new business models, not just debating whether OA will cause subscription cancellations (or whatever else it might cause). We have to figure out, like Wiley-Blackwell (and Lucasfilm and EMS in their worlds), what we can do to take advantage of this new OA, socially networked world of digital scholarship, either as businesses, or as more integrated parts of the institutional framework -- whichever works.

To follow up on Georgia's post yesterday about the Computer & Communication Industry Association's FTC complaint re "fair use," the CCIA has posted a copy of the full complaint. It is worth a look I believe, at least to see how technology giants suc