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A short post by Colette Vogele, at Stanford's Center for Internet and Society, Schloss hearing, suggests that the judge in the case will likely allow the case to proceed, denying the defendant's motion to dismiss. She attended the hearing and had this to say:

From the hearing, I felt Judge Ware was fairly predisposed to rule in Professor Schloss's favor and allow the case to proceed beyond pleadings. I was really impressed with how prepared he was and how he clearly understood the background and factual questions that were being raised by the defendant's motion to dismiss the complaint. Although he didn't rule on the motion at the time of the hearing, he did give a strong indication that he'd be issuing a scheduling order (so, I gather he's not dismissing the case!).

If you are not familiar with this case, The Center, whose attorneys are representing Schloss, also has more information on it. It is a very high-stakes fair use case, so we should all be watching it carefully.

If you are following the story about Viacom's notices alleging massive infringement of copyrights on YouTube, you may be reading about it from many different angles. John Palfrey from the Berkman Center at Harvard is particularly interested in the issue of the chilling effect that notices have on fair uses and has referenced this and other issues involved in the Viacom action in a recent post, Another Video for the Put-Back-Up List?.

For more information on this subject, visit The Chilling Effects Clearinghouse, and read, "Will Fair Use Survive? Free Expression in the Age of Copyright Control," by Marjorie Heins and Tricia Beckles. This is a Brennan Center report detailing the chilling effects of the notice and take-down procedure.

The Chilling Effects Clearinghouse is collecting evidence to further document the negative effects of the notice and take-down procedure. Viacom's 100,000 notices are sure to add many stories to the list. Whether it will be enough to prompt changes in the law is another thing, however. That process itself is extremely difficult. When Congress revisits an existing law -- everyone who has any problem with it can take that opportunity to urge amendments. Just as users and ISPs have their concerns with the law, content owners are unhappy about some aspects of the law as well, so opening it up to change could be a risky proposition for all.

In an intriguing article about remix culture, The Ecstasy of Influence (Harpers.org), author Jonathan Lethem practices what he preaches, that creativity requires a generous scope for borrowing, alluding, quoting, reusing, remixing, that these acts are fundamentally sane, wholesome, and critical to creation.

My husband is an artist and I am a lawyer. You might wonder whether we have a whole lot to talk about. Well, I guess it's fortunate that I'm a copyright lawyer. At least that has an obvious relationship to the art world. But more to the point, we're both in graduate school right now (I'm pursuing a degree in Information Studies, he's pursuing an MFA in studio art), reading incredible things and talking about how phenomena in the art world, such as the shifts that occurred in the 20th century, are mirrored in the development of communications technology, of law and information policy. We should have had this article in front of us this weekend. It's right to the point. Lethem's themes are universal and so very important to the worlds of innovation, wherever based.

The article is long, but well worth your time to read it.

As Lawrence Lessig reports, Very Sweet Victory: Schloss, Stanford's Center for Internet and Society and its extended legal team has won a victory in the district court, allowing the Schloss fair use case to move forward. Lessig's site includes a link to the opinion which he terms well and completely reasoned.

Google has a pretty good track record with its court cases, but this one, as reported by O'Reilly Radar, has gone against the company: O'Reilly Radar > Google Loses Newspaper Copyright Case in Belgium. Ironically, O'Reilly's note points out that the result will likely harm the publishers who won their case, whose materials will not be available through Google. It's the business model...

If I were in NYC tomorrow, I would sure make every effort to hear this distinguished panel discussing appropriation art: The Patry Copyright Blog: Appropriation Art Conference. Patry's blog entry on the panel discussion notes Jeff Koons' 2005 fair use win for a transformative use of another's photograph Blanch v. Koons), in stark contrast to his "String of Puppies" loss years ago (Rogers v. Koons). Patry discussed the Koons win in more detail in an earlier entry. Tomorrow's Conference is sponsored by the College Art Association.

Wendy Seltzer is a law professor at Brooklyn Law School and recently sought to illustrate a point about the extent to which copyright owners go to protect their works by posting on YouTube a clip from a football game that contained the NFL's copyright notice: Wendy's Blog: Legal Tags: My First DMCA Takedown. Predictably, YouTube got a take-down notice from the NFL and removed her video. She is protesting the take-down as fair use, also predictably. What's really interesting is the range of opinion evidenced in the discussion and commentary to her posting of the facts of this event on her blog. For those of us who can't imagine how anyone could not believe that such a use is fair -- a law professor posting a 30 second clip that contains the copyright notice for the game, in the context of study of copyright protection -- will find some interesting explanations, from at least one IP lawyer, of why it's not fair. Go check it out.

Colette Vogele at the Stanford Center for Internet and Society provides a short summary of the important features of the new FAIR Use Act, Support the Fair Use Act | Stanford Center for Internet and Society [beta site], as well as links to sites that allow you to register your support.

Hope springs eternal...

About a year and a half ago, several folks involved in trying to create more breathing room for fair use in the documentary film business worked together to come up with a set of principles that they believed should represented the scope of fair use within that industry. They published these principles as Best Practices in Fair Use. At the time this signaled, along with the development of some divergent court holdings with respect to the scope of fair use in different creative contexts, that maybe a "genre by genre" understanding of fair use would evolve, or should evolve.

Now two additional developments reported at Info/Law � Even Better News on Fair Use and Insurers confirm the value of this approach. The Best Practices are being adopted as standards for insuring productions. Insurers are one of the conservative "gatekeepers" whose demands for reduced risk drive development of the permission culture.

Responsible statements of fair use best practices for different segments of the entertainment, artistic and musical businesses offer real hope that we can back away from the precipice of the permission culture, where every single little piece of anyone else's work included in a new work must be cleared. Of course, clearing everything is more often than not impossible, which results in a reduction in the creation of new works or their scope, precisely the opposite result from what we expect from copyright. But this result is not surprising when the rights of owners are interpreted so broadly as to exclude any use of others' materials whatsoever without permission.

A big hand to those who have worked to create the first set of Best Practices and encourage their adoption more widely within the documentary film industry. Now we need to see similar efforts among other segments of our creative industries. Closely related to this is the magnificent effort to encourage artists, musicians and all creators to "tag" their online works with Creative Commons licenses that make explicit the range of rights the creator gives the public, affirmatively enabling sharing reuse and remixing.

One aspect of the research I plan to do while I'm studying at the ISchool (University of Texas at Austin) involves international aspects of the adaptation to a networked world. In particular, I'm planning a soujourn in France this summer to study the French take on the future of libraries in a networked world.

To prepare, I study not only information studies, but French, and I read several French newspaper headlines/stories each day (news feeds) and some blogs about the future of research in the visual arts in France. This particular blog entry caught my eye as I was reviewing earlier entries because it illustrates the very point I was making yesterday when I posted the piece about the need for genre by genre development of fair use best practices: Le droit aux images a l'ere de la publication electronique.

Even if you don't read French, you might visit the post because the image that is the subject of the post speaks volumes (precisely the point, isn't it?). The post is about how the exercise of author's rights in images affects publication of works that are image-based, such as the one described in the post, an online retrospective review of art from the period, 1988 - 1999. The author of the post asks, in commenting upon the "vast white spaces" left by the omission of every image in the article, "would we accept seeing a review of literature shaved of its citations?" This comparison brings to mind as well the current struggle between the Joyce scholar, Carol Shloss, and the Joyce estate, over her ability to include in her research results (a book and Web site in her case) quotations from copyrighted works that illustrate and support the conclusions she draws.

Those who study and teach in fields that require the use of images (art, art history, architecture, media studies, etc.) could put forward a strong statement of fair use principles, like the Best Practices document I mentioned yesterday. This is a group that has for way too long labored under a very difficult copyright-related burden to carry on its important work.

Evan Brown has a succinct explanation of the various parts of the new FAIR USE Act, the bill introduced in Congress last week that would make several changes to the anti-circumvention provisions to allow certain uses that have become problematic over the 8 years those provisions have been in place: InternetCases.com -- Evan Brown, Chicago intellectual property and Internet attorney. He provides a link to the bill so you can read along as he explains.

He also points out 2 problems with the bill, but not the biggest problem of all -- its likelihood, or lack there of, of getting passed. Still, this bill in some form or another has been and I bet, will continue to be introduced in every legislative session until some day, anti-circumvention is going to be modified in some ways. It may not happen until those who use DRM have given up on it in favor of other business models...

The Stanford Center for Internet and Society reports today that Stephen Joyce and the Joyce estate have entered into a settlement agreement with Shloss: Important Victory For Carol Shloss, Scholarship And Fair Use | Stanford Center for Internet and Society. Stanford is hailing this as a victory, but cautioning that there needs to be a string of such cases to effectively make the case for fair use for scholars and creators of all types. I'm sure we'll hear more about this in the coming days. At least in the realm of the creative, fair use is definitely making some headway.

It almost seems like an April Fool's joke. The Washington Post reports that four high school students are suing Turnitin.com, a service that checks student papers for plagiarism, for copyright infringement. They're seeking $900,000 in damages -- the statutory maximum of $150,000 for each of six papers, which, naturally, the students registered with the Copyright Office (presumably) before turning them in. The crux of the students' argument seems to be that Turnitin "willfully" violated their "instructions" not to archive their papers in its database. Such instructions would, arguably, defeat any implied license that Turnitin might otherwise have had under the circumstances.

But while it may seem silly (at best) for the students to be "making a federal case" out of this, their lawsuit actually has potentially serious implications for electronic databases generally. What Turnitin is doing is not terribly different from, say, Google's library project or the many other such databases that libraries and scholars have been assembling in recent years. While all of these databases unquestionably make use of copyrighted material, they quite arguably are doing so in socially useful, "transformative" ways that have no appreciable impact on the copyright owners' ability to exploit the value of their works. In fact, if anything, Turnitin's own database would seem to have even less such impact, because it offers its users virtually no access at all to the source material. Thus, a win for these students could be bad news for fair use.

I read with interest today that the President of the Bibliotheque National, Jean-Noel Jeanneney, has apparently been forced to resign:Jean-Noel Jeanneney quitte la presidence de la BnF - Tour de Toile du BBF. You might wonder why this seems important to me, unless you know what I'm studying at the iSchool...

But, more generally, it's of interest because Jeanneney is an impassioned critic of all things Google. In fact, in his slim volume, Google and the Myth of Universal Knowledge, he says at one point, something to the effect, "Whatever Google does, we should do the opposite."

His principle criticism was that selectivity and organization should be at the heart of the process of digitization, and of course, Google's goal is to digitize everything and let the users sort it out through search, tags, bookmarks, etc. He also criticizes our reliance on the market to do what he thinks should be done with public money in Europe. At the core of Google's undertaking, and implicitly rejected in France's efforts that so far involve only public domain works, is reliance on fair use to justify digitizing books still in copyright. Being an employee of a Google Library partner, I'm not neutral on the matter, but I must say that the book is very well written and raises good points. Nevertheless, one commenter on the blog where I saw this note about Jeanneney's departure seemed to suggest that there might be a connection between the fact that Google had so far digitized 10 million books and the Bibliotheque National, 100 thousand, and Jeanneney had essentially castigated Google for performing well. While neither of the figures is likely accurate, they get the general gist of the point across.

As always, there's no doubt a lot more to the story than initial reactions suggest, but I wonder whether Jeanneney's departure signals an opening for a new attitude towards mass digitization projects in France. Not coincidentally, I am headed there in 5 weeks to interview several librarians about their views of the future of the library in France. I have both Bibliotheques Nationales on my agenda, as well as 2 University libraries and a municipal library (Lyon). It's an exciting time to be thinking about the future of libraries, and May is a fine month to visit Paris.

In a story in Paris' Le Monde, Le Monde.fr : Accord de partenariat entre l'AFP et Google, the French daily reports that Google and the French news agency that sued Google in March 2005 for copyright infringement have settled their differences, and the suit has been dismissed. Unfortunately, the story reports that the terms of the settlement are secret (surprise!). It doesn't offer a lot of details, but it does suggest that Google will gain broader access to the Agency's holdings than it had under its claim of fair use (headlines, images, maybe a short blurb). This would be consistent with the kinds of deals that Google has negotiated with copyright holders in the US in connection with Google Book Search, where it claims a basic access under fair use to digitize in order to represent a work in its index and to show snippets, but negotiates with copyright owners for rights to provide broader access to content. I looked for confirmation of this story in English-speaking venues but have not seen it yet.

Just read a very interesting article at Salon, Tangled up in Seuss | Salon News, in which author Dan Brekke tells the story of a mashup of Dr. Seuss lyrics sung in the 60's style of Bob Dylan. On another site, one can access the recordings (still, but probably not for long). By the way, Dylan is not involved in any way, either in the creation, nor in the cease and desists, but you'll be surprised at how good an imitation they are.

The article is considerably more thoughtful regarding its fair use analysis than I expected, and tells both sides of the story quite well. It is sad to say that the conclusion, that the artist who created the mashup probably would not win his case based on current precedents and the facts about his particular use of Seuss' content, is probably correct. But Brekke goes on to note that this fact has spurred serious efforts lately to redress the tight strictures on creativity that such interpretations of the law have fostered. At least partly because we have such incredible ability now to take existing works in unanticipated creative directions, many feel that fair use must be given more breadth. I would go even further. I would advocate a loosening of the derivative right itself. For example, there could be a shorter limit on its duration (I think Lessig has suggested this) or the right could encompass less than it does now. Alternatively, some rights to create derivatives could be acquired by those who wish to use a work creatively by means of a statutory license, as the right to create a cover recording of already released recordings are acquired today. Copyright owners usually do not support that kind of allocation of their interests because it takes away their flexibility to say no, and to demand what the market will bear, but that's just the point: the allocation that most encourages creativity is not the allocation that always favors the current creator over those who are coming behind her.

In a forthcoming article, "Lawful Personal Use," University of Michigan law professor Jessica Litman argues thoughtfully for "a view of copyright in which readers and listeners are as important as authors and publishers" and in which many of the uses we all routinely make of copyrighted materials would be deemed noninfringing -- indeed, wholly outside the scope of the copyright owners' exclusive rights -- regardless of whether they would satisfy the fair use standard:

Reading, listening, viewing, and their modern cousins watching, playing, running, and building, are central to the copyright scheme. We knew that once, but forgot it sometime within the past generation as the rhetoric of copyright increasingly characterized personal uses as piracy and theft. If we think about personal use as a guilty pleasure that is probably morally wrong, we’re going to lose it. If we recall that encouraging personal use is an objective that’s crucial to the copyright system, we may find the will to defend it against increasingly forceful encroachment.

And after all, she notes, "laws that discourage book reading end up being bad for book authors" as well.

Litman comes to no definitive conclusions as to what the precise scope of "lawful personal use" should be, but her article is well worth reading, and the debate she has started is well worth engaging in.

An interesting story, if you haven't been following it -- John Palfrey - Blog Archive - Wendy Seltzer's NFL Experience: Just Half-Time, or Game Over?. Wendy is giving a talk today on the story of her experience dealing with the DMCA's notice and takedown procedure. The talk will be posted after the event.

If you are unfamiliar with the idea of the Long Tail, I urge you to visit the Website where this story is posted for more information generally, and of course to read this little note about lost opportunities, lost expression, lost creativity: The Long Tail: Long Tail enemy #1. It's about the failed effort to clear rights in music that was such an integral part of the 70's television show, WKRP in Cincinnati. The creative possibilities today involving new uses of existing materials just do not mesh with yesterday's processes, procedures and the law that backs them up. There are many other even more compelling stories than this one, many of which Lessig and others have chronicled. Though the subject matter is not in the same league with real war, it reminds me nonetheless of the lines from Blowin in the Wind, "How many times must ... before..."

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.

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.

Yesterday morning, I had the pleasure of hearing a featured story on NPR about fair use. Stanford blogger, Anthony Falzone links to the story, so if you missed it, you can listen now: Fair Use Project Profiled on NPR's Morning Edition | Stanford Center for Internet and Society [beta site].

The degree to which copyright and fair use are becoming part of mainstream consciousness is alternately amazing and horrifying. If you teach it, it's fabulous to be able to bring in news pieces, comics, magazine articles, etc. often of great importance, that nicely make your points for you, and that engage your students in the real world of creativity and the law's role in mediating conflicts. But after awhile you may begin to feel that no matter how many people know about it, its vagaries will continue to confound even the most knowledgeable (including lawyers and judges). Is it simply unsuited to the role it's expected to play today? If it is, how long until we figure that out and craft something that better serves our needs?

I am in France at the moment; typing in ... the municipal library in Lyon. The keyboard is way different! Hunt and peck or redo every 5th letter... Anyway, even here with little access to the Internet (the friend I am visiting doesn't do computer stuff), still, about half of my friends emailed me to watch a YouTube video at www.youtube.com/watch?v=CJn_jC4FNDo (that was hard!) about fair use, a mashup of Disney characters explaining the concept. I cannot watch it at the moment (no earphones at the computer), but apparently it is quite good. So, go watch, enjoy, and at worst, I will know about it in a few more days when I get back to my world of constant connection...

Oh, and I have an interview with an administrator here (at the library) who, I hope, might have some really wonderful news about digitization projects here -- perhaps a major step forward for the biggest city library in France! I will know more tomorrow. A bientot!

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.

I got a bit of a shock yesterday, right about closing time (of course). I got an email message forwarding a short essay by Duke University Law School's James Boyle, The inefficiencies of freedom. I've read many works by Boyle and always find his analysis to be thoughtful and thought-provoking. He's a strong defender of the public domain and I must admit that I generally agree with his opinion that the balance embodied in the copyright act has tipped too far towards the interests of copyright owners. As a result, I was stunned to see that he impliedly labeled as irresponsible large universities like mine that might consider including among the many sources we use to provide legal access to educational materials CCC's new academic license (a form of blanket license, as opposed to a transactional license based on individual works used). Somehow this license will sweep away all of fair use, as though one couldn't thoughtfully conclude that paying for permission was in many cases the right thing to do because a good part of what we do is not fair use. He easily equated fair use for creative uses (parody, criticism, commentary) with fair use for the massive duplication of works created, in many cases, just for our higher education market. I'll address that distinction in more detail below.

But next week I am going to have to go though his piece, sentence by sentence, in order to explain to my client why I don't believe it's irresponsible to consider, among the millions of dollars worth of databases we subscribe to, the tens (maybe hundreds) of thousands of dollars worth of electronic books we provide access to, and the tens of thousands of dollars in transactional license fees we pay for permission to duplicate works beyond what we consider fair, adding a payment to the CCC for, in time, pretty much the same works we license transactionally now. If anyone thinks we can turn back the clock on this transition to new models of content distribution and use, I respectfully disagree.

We license databases in part so that our faculty can provide access to their contents to students in connection with class assignments. We license ebooks in part for the same reason. We pay permissions expressly for the same reason. We do this because everything we do is not fair use, not in my book anyway. I agree that some part of our duplication and distribution of others' works is likely fair use, and we have our policy that describes what that part is. But it's not all fair use.

Because I do not believe everything we do is fair use, as an advisor to my client, I can't responsibly advocate that we avoid paying permissions when our uses exceed what we have determined is fair use, not where there is such a mature, efficient market for licensed uses provided expressly for higher education. As much as we may dislike the fact that the market for permissions and licensed works has been held numerous times to negatively affect the exercise of fair use, that is how the cases involving systematic duplication and distribution have gone. Further, I don't believe our not making a profit on these copies will completely flip the results of those types of cases.

Boyle doesn't represent a university as its copyright counsel. I'm pretty sure he'd insist his was not legal advice if asked directly. If it is not legal advice to a client who's counting on him to give his best estimate of the risk of a course of action, what is it? It strikes me as an emotional plea more than an intellectual argument.

Boyle is singling out, as incompatible with fair use, this particular way of paying for uses we make of others' works. He's afraid that if your university just writes a check to CCC for, let's say, $100,000, so that all the works that are covered by the license (the "repertoire") can be used in the typical ways we use such works in connection with classroom assignments without having to report how many copies were made of which particular works (that is, efficiently), it becomes easy to ignore the question of whether a particular use is a fair use. Who cares whether it's fair use or not? And Boyles' concern is that if we don't care about fair use here, fair use will disappear altogether. Sounds logical, except that fair use is not a monolithic all or nothing proposition.

The fair use test comes out differently depending on the facts about each use. His argument is not that different from saying that if we don't rely on fair use to copy an entire book, we'll lose the right to quote a single line from a book. Those two things are qualitatively, not just quantitatively, different. Creative uses and duplicative, iterative, plain old copying and distributing uses are very different and the courts have consistently recognized that. The kinds of uses that might be refused by the copyright owner, those where we most need to rely on fair use, creative, critical, scholarly uses, are qualitatively different from plain old copying. The recent "Grateful Dead" case illustrated this kind of discrimination quite nicely. Even in the face of evidence of a market for permission to do precisely what the defendant wanted to do, the court upheld fair use for a creative purpose. On the other hand, we see cases where there's massive copying and distribution, but *no* viable market for permission (the Google/Perfect 10 case), and even where profit is involved, the court upheld fair use. These cases say to me that creative uses have a strong claim to fair use; even duplicative uses without a market for permission have a strong claim to fair use. But duplicative uses where there is a functional, efficient market for permission are not enjoying the same strong claim in the courts. I don't think the courts are going to begin any time soon to paint with the broad strokes that Boyle fears.

I too believe that we have to draw a line in the sand about fair use. For example, I greatly admire the effort that has been made to address the "permission culture" developed in the documentary film industry and think that kind of effort should be made in industries that rely on the use of images, such as art history publishing. I just don't agree with Boyle about which side of the line our systematic, massive copying and distribution of classroom materials falls on. In theory, maybe some time in the past, it all, or some large part of it, fell within fair use. But with today's markets for licensing and permission, and courts that are all over that concept when it comes to this kind of use, I have come to believe that that time has passed. There are cases where I still feel we reasonably rely on fair use for classroom materials, but they are a small percentage of all our uses.

I don't think Duke University is asking Boyle to advise it about liability. But even if Boyle were Duke's copyright counsel, Duke will base its decision about what to do on many things in addition to its fear of, or fearlessness about, liability. It might, if it wants to, consider whether it believes that all fair uses will be lost if an efficient market for permission to systematically make and distribute copies of classroom materials further develops. I would hesitate to call Duke's decision irresponsible if it decides it doesn't believe that.

What do you think?

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.

The Wall Street Journal is running an article today, "Google, Others Contest Copyright Warnings - WSJ.com," that describes efforts to reign in the absolute statements and warnings we often see content owners use to describe their rights. From the ubiquitous baseball and football absolute prohibitions to publishers' statements that no part of a work may be copied in any form, these notices have always been problematic in that they misstate the more nuanced contours of copyright owners' rights. But never before have so many heavy-weights complained about it. I see this as more evidence of a growing awareness that fair use has an important role to play in copyright's balance of interests. It's not just about academics and book reviews. It's about whether we're going to have a culture of paying for every single little thing that we can do with a creative work, or whether use rights will be more generously defined and enforced. Absolute warnings, like digital locks, discourage uses, including creative uses. It will be interesting to see whether this Industry Association will be better able to make the point than academe typically is. On the other hand, perhaps it is the success of initiatives like the Documentary Filmmakers' Statement of Best Practices in Fair Use that have brought us to the point where others are eyeing the permission culture with the kind of scrutiny it needs.

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 such as Google and Microsoft have committed themselves on paper to the principles of fair use. The complaint contains examples of what the CCIA regards as improper "copyright warnings" used by media and print content providers, as well as what the CCIA regards as more accurate statements on fair use rights, such as the language used in the Nimmer copyright treatise.

The Library Copyright Alliance also submitted a letter in support of the CCIA complaint. The LCA is composed of the American Library Association, the American Association of Law Libraries, ARL, the Medical Library Association and the Special Libraries Association. So, it is good to see the major representatives of the profession join in the fray.

While I have no idea how the FTC will view the CCIA complaint, it is at least generating considerable media attention which should heighten awareness of the fair use concept in the broader public.

I've just finished reading Pam Samuelson's initial thoughts on overhauling copyright law, linked from Boing Boing, Boing Boing: Proposal to reboot and de-cruft US Copyright Law. This is a very good framework document, easy to read (sort of like the law she's suggesting we need), and very thoughtful. If anyone could pull together the kind of massive project she's talking about, Pam could.

Still, she is very realistic about the likelihood that actual legislative reform would result from the effort. She knows it's highly unlikely at least for 10 years out and that, once started, it would take another couple of decades to complete. She sees a lot of other advantages to her effort though, even if we still are stuck with our bloated 1976 Act, but I'm not so sure how realistic they are.

What she doesn't give voice to is the pessimism I sometimes feel about the likelihood of the law's becoming so irrelevant that perhaps sooner than the next 2 decades, neither copyright owners nor users will be paying much attention to it. We will all have opted out of it to a large degree -- users by ignoring it; owners by licensing and or drm'ing around it. Those directions don't sound so good, but even a best case scenario could see people having opted out by turning to other ways to make a living off creative works (sort of what John Perry Barlow predicted almost 14 years ago). The signs that this strategy is increasingly employed are popping up here and there. Still, it's like the "innovator's dilemma." Only small potatoes at first, then gradually, the alternative business models begin to improve, pick up steam, and one day, they overtake the old ways of doing things, those industry giants who couldn't see the magic in the new ideas because there wasn't enough money in them, or their current best customers weren't interested. But for the existence of the state-granted monopoly that is copyright, in fact, the tide for the creative industries would have turned long ago. Copyright has worked to make creative industries innovation-proof to a much larger degree than other industries. Perhaps to their detriment ultimately. More certainly to the detriment of the public generally.

Here's one of the subjects I've mentioned in a few places in action: the rhetoric of fair use.

The technology trade group Computer & Communications Industry Association (CCIA) recently filed a complaint with the FTC regarding the misleading and overreaching copyright warnings that appear during sports events, on DVDs and books, and other places. Georgia wrote about the complaint last month. I'm highly sympathetic to that particular endeavor, as I find such notices blatantly misleading. Those notices are one of the subjects I'm regularly asked about by the people I work with- mainly librarians, students and educators. ("Can I show this video to a class when it's class related? What if it says "For Home Use Only?")

The head of the industry sponsored Copyright Alliance has written a response on CNet entitled "Fair use is not a consumer right."

Slashdot reports a study commissioned by the Computer and Communications Industry Association (CCIA) on the economic value of fair use. Peter Jaszi, American University Washington College of Law was involved. Peter has been a strong proponent of fair use, and one who has taken decisive actions over the last several years to really make a difference in how we perceive and rely on fair use. The Best Practices document for Documentary Filmmakers is a superb example of such action.

This latest effort reports that fair use adds more to the economy than the copyright industries do, as the figures in the snippet at Slashdot illustrate. But what kind of analysis lies behind the admittedly eye-catching numbers? The study identifies certain economic sectors as fair use industries, industries for whom reliance on fair use is critical to their business, and analyzes the contributions of these industries, their growth, how many people they employ, and other measures. It concludes that fair use contributes to the economy in some proportion directly related to the value of these industries. I have not read the whole report yet, but it certainly is an interesting angle.

One of the sectors identified as a fair use industry is education institutions. Statistics about the contribution of higher education, in particular, to the economy are probably very widely available. I know that we have had to make the case that dollars invested in us are repaid many times by economic growth (nevertheless, we do not manage to reverse the trend towards less and less investment from our state legislature each session). But this set of statistics has not until now been brought to bear on the question of the extent to which our reliance on fair use actually benefits the economy.

Lolly Gasaway reported recently on the Perfect 10 v. Google case, how the court really looked at the social benefit provided by the alleged infringers, departing somewhat from a focus on the harm caused by the infringement. I followed up with a short article in CIP's Newsletter, further expanding on this theme. The court's analysis, as much as its ruling, was very important for its shift in emphasis. It is this shift in emphasis that I think suggests the possibility of more solidly undergirding the scope of fair use involving nonprofit educational uses. Still, it is important to note that there were only speculative damages to counteract the public benefit of Google's fair use in Per