©ollectanea

Thanks for the introduction, Georgia, and, more importantly, the opportunity to be your guest blogger this month. I can think of no better (or should I say challenging) introduction to the world of blogging than learning it through one of my favorite people (Georgia) on one of my favorite topics (copyright). Yes(!) - there it is - the admission - novice blogger! I've been resisting learning how to blog to some extent because I wasn't sure my overloaded brain (or schedule) could stand another new technology. But I guess you have to keep up or get out of the way.

Georgia also showed me how to get a Google reader and RSS feeds and even some good sites to watch. Annddd, as if that weren't enough, she even suggested this news story as an important and appropriate one to bring to the attention of this blog. Now that's what I call a good friend (although I suspect the rest of the month is up to me). So I'm counting on this being a friendly blog community and hoping you all will help me this month by popping in with your comments and stories -

Georgia was right (a habit of hers) - the news story she pointed me to was fascinating, important, and layered in its implications that become increasingly scary the longer you think about it.

It's called "Music Publisher's Takedown Strikes The Wrong Chord" and Michael Geist wrote it last week. It's one of those David and Goliath internet stories but David dies. However, there's a twist. It turns out that David was really Atlas holding up the world and when he fell, the world fell. How's that for mixing metaphors and drama?

It's about a non-commerical website started in 2006 by a part-time Canadian student as an online library of public domain music scores. It was called the International Music Score Library Project (IMSLP) and by last month it was the largest of its kind on the internet with a million hits a day. Unfortunately, it was taken down by the student October 19th after he was threatened with an infringement lawsuit from an Austrian music publisher called Universal Edition. They wanted the site blocked from EU users and nothing up that was still under copyright in Europe (Europe's copyright term is twenty years longer than Canada's). Everything on the site was in the public domain in Canada so the site was perfectly legal as a Canadian based site.
How sad. The public domain really took a hit on this one. It's bad enough when "arguably" legal sites get bullied out of existence but things have really deteriorated when a lawful site goes down. In fact, it's outrageous.

The notion that "public domain" might be only an off-line concept (see Geist story) is also chilling but I suppose I shouldn't be too surprised. After all, the oft-repeated statement that fair use doesn't apply in the digital world has been trotted out for years. Apparently copyright is only medium-neutral when it meets the needs of the copyright holders.

I agree with Geist when he notes that if Universal Edition is right, we (including online businesses) would have to comply with all the laws of all countries. In this case, there's only a difference of 20 years term being disputed. But is that the only difference between Austrian and Canadian copyright law? If one is expected to comply with Austrian copyright term length, wouldn't it follow that one would have to comply with the rest of it? US copyright law is challenging enough for me.

In the end, I'm left with the feeling that we haven't figured out how to make a forceful and compelling case for the necessary growth and health of the public domain. We need an approach that makes Joe Citizen feel like a rich and thriving public domain is something we believe we're entitled to - like national parks - that needs protection and care and is there for everyone to use and enjoy.

Lessig' gave a talk about remix culture back in March at TED: How Creativity is Being Strangled by the Law. His talk was just posted this month. For anyone who has seen him give a talk in the last 1 - 2 years, this won't be new, but it's very streamlined and very succinct. The video only runs about 18 minutes and it's excellent -- watch this!

Lessig emphasizes the importance of competition, that "more free" can compete with "less free," that artists' choice (to distribute differently, for example, to make their own works more freely available) is the key to defeating monopoly, and that laws that criminalize our children's creativity are corrosive -- and we can do better.

I have been developing an argument that touches on these same themes at Mass digitization ~ changing copyright law and policy, and in fact I had just posted this new segment last weekend that talks about how the sheer availability of so much good free content online inevitably puts pressure on even Hollywood and the music industries to stop making it hard for people to get to their content (DRM and subscription barriers, among others). Check it out.

Lessig announced today that Carl Malamud had accomplished a coup: Building the Legal Commons (Lessig Blog). He purchased a huge collection of federal case reports and is making them completely pd -- not just CC licensed for some but not all purposes, but CC licensed for *all* purposes through a new CC license that commits the licensed work to the public domain. I feel like I'm watching one of those amazing movie final scenes where people who have been stunned into submission over the course of the entire movie, one-by-one stand up and finally refuse to go along with atrocity anymore. They just say no. Or, rather, they just say yes -- yes to the protection and promotion of the public domain, not just for some, but for all.

Tears and cheers (the audience is reacting).

After 6 weeks of drafting, posting, tracking blog statistics, and weekly writing in a journal about the experience, I have just completed my blogging experiment at Mass digitization ~ Changing copyright law and policy, by posting the Conclusion today. Here's the first paragraph:

The story of mass digitization’s effect on copyright law and policy is the story of confronting and eventually calming fears. Sometimes the only way to calm fears is just to stand up, stride towards the light switch, and show that there’s nothing to be afraid of. Turn on the light. Look under the bed. Open the closet door. See? There’s nothing there. Didn’t Franklin Roosevelt say something about this?

Since I announced the start of the experiment here on Collectanea, I thought I would announce its conclusion as well. If you haven't visited yet, or if you visited early in the drafting process, you might like to visit again to read the entire draft (7 fairly short sections). Be sure to check out the Project Resources page. It has links to all the online materials referred to in the draft, and other materials that support or illustrate the argument.

It has been a very interesting experience to draft in blog-style. My next step will be to polish the draft and give it journal-style. I will be able to compare the two drafts and perhaps say something useful about how the styles differ. I also have skads of data about daily page views, time on the pages, and how many pages were viewed per visit. It's amazing what Google Analytics can tell you about your blog. If it weren't for Google Analytics in fact (and other blog statistics programs), the story we would relate about our experiences blogging would be far removed from the truth because without stats, we only know readers are there if they comment. Hardly *anyone* comments though. The comment rate on Mass Digitization was roughly .2% -- that's point two percent, not two percent. So, for 1000 pages viewed, the blog received 2 comments. This rate is consistent with rates I've read in broad studies of blogs. Of course, there are exceptions, but most of us are not really visibly building a community of commenters.

But we are reaching people. Those 1000 pages viewed represent about 500+ people who stopped by, even if only for a few minutes. So, the blog entries did get viewed in whole or in part by many folks who might not read the article in its polished journal-style form. It is an interesting hypothesis, how blogs affect scholarship. I will be posting my paper on that subject at the Crash Course when I complete the paper in about 2 weeks. And Mass Digitization will be published on CIP's Website in the spring.

If you are one of those 500+ people, THANK YOU! It is very nice to know you are there --

Well, it’s official: The University of Texas at Austin Libraries has launched our documentary blog for our public domain and orphan works project, free*the*books. We invite you to view and post comments! Our new blog is focused on our research about international copyright laws that control the use and distribution of digitized books online.

As a Google Library Partner, UT Libraries will digitize over a million books from its rich collections within the next six years. Digitization of 800,000 books in the Benson Latin American Collection began in June of this year followed by this companion project to develop an authoritative process for determining the copyright status of books published in various Latin American countries and to identify foreign works in the public domain.

We have found little guidance to help us reliably identify which of our books are already in the public domain so we are piloting a project to develop new tools for ourselves and for anyone who wants to tackle these difficult public domain problems. We will document our process, our progress and our results on the blog’s pages along with links to web resources we find useful.

The initial pages of the blog include online resources to determine critical author birth and death data, prototypes of legal evidence tables and draft guidelines by which books, wherever published, may be determined to be in the public domain

We will be adding features, more pages and new posts to the blog on a regular basis and from time to time will also have guest contributors to add variety and fresh perspectives. We invite suggestions and comments from other Google Library Partners and anyone undertaking similar or related projects.

Email us at freethebooks@gmail.com or IM us at our Meebo widget in the sidebar of the blog. We are here; we are building an evidence base and we are looking for virtual partners!

I discovered a couple of papers recently that focused my attention on the public domain, as what's left when copyright gets through with "protecting" a work from, from, well, from what I am not sure any longer, but Bill Patry's piece seemed to pull things together in a way that compelled me to write about it all. In The Patry Copyright Blog: The Global Garrotting of the Public Domain, Patry recounts how we got where we are today, with respect to the length of our terms, and how, in Korea, the longer terms are actually threatening to harm the Korean publishing industry (which translates many foreign language works into Korean). As always, Patry's posts are eloquent and powerful, so I recommend you read them for yourself.

But I also want to draw you attention to two papers published recently on the subject of the one-way ratchet, the continual lengthening of the term, the continual heightening of the walls of protection: Rufus Pollock's, Forever Minus a Day? Some Theory and Empirics of Optimal Copyright, and Neil Netanel's, Why has Copyright Expanded? Analysis and Critique.

Both of these articles raise the question in my mind of whether the assumption that the ratchet can only go one way is really accurate. If we begin to see more evidence such as Pollock's, empirical evidence that the length of term is counter-productive, that a copyright can be so strong that it harms productivity, why couldn't we assume that at some point, law makers would have to respond and not only stop piling on the protection, but actually scale it back?

If law makers cannot respond, then our law truly will become irrelevant. It would be like legislating that balls thrown in the air must not come down. You can legislate all you want in the face of the fact of gravity, but it won't change the laws of gravity. People will just ignore the silly law, right? Why should we think that copyright law should be any different, that we could legislate against economic realities, flout those realities, and still be respectable?

I have read a number of things lately that reinforce the idea that copyright terms should be shorter to optimally promote the creation of new works. I blogged about two articles just last week, in particular, Rufus Pollock's, Forever Minus a Day? Some Theory and Empirics of Optimal Copyright, which concludes that 15 years is optimal. Today, Peter Suber notes that, in accordance with the original term of copyright, 14 years, John Ockerbloom is dedicating the works he authored when the Web was new (1993) to the public domain, as part of a celebration of public domain day: Peter Suber, Open Access News -- How to celebrate public domain day. Since reading Polluck's article, I've been contemplating adopting the Founder's Copyright for the Copyright Crash Course, so today, after reading Suber's post celebrating Public Domain Day, and having had a couple of weeks to think about it, I have decided that I will indeed adopt the Founder's Copyright for the Crash Course.

I went to the Creative Commons website to get the little "FC" icon and paste it on the Crash Course homepage, alongside the current CC 3.0 license I use, and discovered that it's not quite that easy. Unlike the other licenses, which give the public rights to use my works, but which don't divest me of the copyright, the Founder's Copyright actually entails a sale of the copyright in the Crash Course to the Creative Commons, the listing of the Crash Course in a registry with a notation about when it will enter the public domain, and an option to renew the copyright for an additional 14 years at the end of the term if I want to. That would be 2021. I can't imagine in any wild dream that the Crash Course still has value then, but whether it does or not, I thought about it, and I want others to take what's of value and reuse it by then, at the latest. I already have an attribution share-alike no commercial use license (the 3.0 license) on the Crash Course, so this just seems like a good next step. I'm only sorry that it's a bit more complicated than the other licenses, because I suspect that discourages many people from opting for it. For example, I would like to opt for a 14 year term for everything I have written since I started practicing law (some of which would be pd by now with a 14 year term), but of course, that's impossible to apply in practice. I can't even identify all those works or find copies of them. Just think about the nightmare it's going to be to sort out who can do what with what for works that aren't on the Web with attribution and clear rights allocated to the public, to say nothing of death dates, certain, etc. Just when the Internet has made it possible for us to benefit in concrete ways as never before from sharing our works with others, the law has made it almost impossible to do so legally. What is wrong with this picture?

Actually, it makes me want to just opt for public domain right here and right now. Why wait 14 years? Why not just create my own copyright notice that unambiguously dedicates everything I do from this moment on to the public domain? Well, there's attribution. That's about the only thing standing in the way. If you care about attribution, the pd is not quite the perfect fit it might otherwise be. Well, 14 years with a CC 3.0 should do the trick. That's what I'll stick with for now. Going forward, certainly, if not going back.

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

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

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

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

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

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

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

Hope to see you there!