Archive for Intellectual Property

Careful, Educators…

Cross-posting a post I made at the Copyright Advisory Network.

The Copyright Alliance (not to be confused with the Library Copyright Alliance) is one of, if not *the* largest promoters of strong copyright in existence. It’s membership list mainly consists of copyright and entertainment industries. I’ll occasionally look at their cited scholarship when I feel like being depressed about the state of copyright scholarship. They’ve recently created the nonprofit Copyright Alliance Education Foundation to educate K-12 educators and students about copyright.

Unsurprisingly, I have problems with the materials found on that site. It’s not all bad, but one should be very careful before using any materials “as-is.” The materials stress the importance of permission, the vagueness of fair use, and a fear of technology. Believe it or not, I started reading the document with a sense of hope- creating copyright materials for K-12 is not easy. The organization has dedicated a lot of resources to this important subject; I had at they would acknowledge some of the purposes behind copyright law and the areas that are controversial. Sadly, it was not to be. In simplifying a complex subject (and this is even for the teachers, not only for the students), the organization has made their elements a lot less useful for educators who are actually interested in getting copyright right.

My biggest gripe is that they offer a simplistic and binary view of how copyright works, in and out of the classroom. In the guide for educators, they claim that the use of copyrighted materials requires fair use (characterized as scary, vague, uncertain) or permission. My first question: how in the world can you offer a copyright guide specifically for educators without talking about educational exemptions to copyright? We have actual exemptions specifically for educators in copyright law! Their guide specifically denies such exemptions. In the FAQ, they state that there are no special privileges for educators. That statement is completely incorrect. Sections 110(1) and 110(2) offer teachers ways to use copyrighted material that are not covered by fair use. Furthermore, their coverage of fair use could use a great deal of work. They don’t appear eager to have students attempt to use fair use, and in my opinion really minimize its importance.

As I was writing this message, Tim sent a message about EFF‘s new site:
The EFF talked about a “balanced” copyright system. The Copyright Alliance doesn’t. The EFF site walks people through the decision making process in determining whether or not a use is fair, and discusses different situations in which a use was determined to be fair. The EFF site isn’t perfect (and I’ll write to them with a couple of suggestions), but it’s a much more appropriate and realistic introduction, in my opinion.

Would that everyone could work together. The people in the copyright industries aren’t bad people. But there really are some fundamental differences in beliefs about public good and fairness in general that have made compromise difficult (and it seems to be the public side that is willing to compromise). I’ll write about this later when revisiting the government’s Section 108 report.

I believe that copyright is useful and important. I also believe that copyright exemptions are vital to creativity and innovation. Teachers, please be aware that there are problems with the Copyright Alliance’s approach. It’s very one-sided about issues that are not one-sided. I’m not saying reject it out of hand, but be careful. Not all of the true/false statements they offer can be evaluated by a true/false statement.


Quick updates: Useful links for Google Books and the OCLC Policy Change

Many things have happened in the copyright/libraries and games/libraries world since my last post, and I’m not going to comment on them too much just yet. I did want to mention some resources I’ve found very useful when tracking some of the larger controversies.

-Walt Crawford’s March 2009 Cites & Insights has a wonderful summary of various perspectives on the Google Books settlement.  I’d add Scrivener’s Error for an additional useful perspective from an author’s attorney. ALA’s Office for Information Technology Policy also has a Google Book Settlement blog.
-The Code4Lib Wiki’s OCLC Policy Change article  has been very valuable when trying to keep up with that controversy.

I’ve been hired by ALA to write articles related to copyright for their Web site, so I’ll be working on that for a bit.  The articles will be available under a Creative Commons license, and I’ll probably make them available here as well. The Copyright Advisory Network group got together in DC this past December, and we’ve been working on developing resources on the revamped site since then (and we will continue to do so). In the near future I’m going to address a few issues related to some problems institutions have come across in their digitization projects and also when not to use a Creative Commons license (hint: when you don’t own the copyright in the material). Before that, though, expect a post on the Amazon controversy from the perspective of a Kindle 2 owner (as well as one who’s a bit frustrated with the Kindle 2 experience right now…)

Today’s slightly-off-my-normal-track link was to the Mont Blanc trademark infringement lawsuit against a person who was selling altered pens. Alas, the legal  documents have been removed from the places they were publicly available and are only accessible through Pacer at the moment. I’m not a fountain pen user- as a lefty with poor hand writing in general, my penmenship with a fountain pen is a pretty scary thing- but Holly is a dedicated collector, and I’ve been following this situation with some interest.


Fair Use in Scholarship

I’ve been involved in a few disturbing conversations the last couple of days.

Fair Use has a vital role in copyright law- it allows the use of copyrighted material without permission for what are essentially societal benefits. Criticism, scholarship, teaching and research are specifically mentioned in the text of the law as examples of the kinds of work that should be fair. Fair use is necessary for scholars.

I’m interested in a wide variety of subjects that don’t directly involve copyright- much like the field if Information, looking at copyright often involves looking at the areas that copyright touches, and much like the field of Information, those areas can be just about anything. So, for example, I look at how copyright affects the practices of libraries and archives, or K-12 education, or other subjects.

One of the things that got me interested in copyright in the first place were the practices of fans, because I am a fan and copyright seemed to bring up interesting and problematic questions for fan activities. In the anime fan world, for example, the practice of fansubbing- that is, groups of fan subtitling and distributing anime that hasn’t been released in the U.S.- used to be, and still is, relatively common. Anime club showings, where people get together and show anime, are also common. I have doubts that the anime industry would exist if these practices hadn’t occurred, but they certainly bring up copyright challenges. Anime itself has become a serious subject of study, and I’m on a few related mailing lists.

I recently gave a presentation about copyright to a group of archivists and educators from different universities in the U.S. One of the topics that came up was working with attorneys. At UT, we’re very fortunate to have strong copyright scholarship advocates like Georgia Harper. I know some other universities also have advocates in that area- Kevin Smith at Duke, for example. But one thing that really struck me from that meeting was that not all groups in other universities have that kind of support. A couple of people described how risk-averse their counsel is when it comes to copyright issues. That’s a problem. There’s too much going on in the world for fear to win those copyright arguments in education.

A related discussion popped up on one of the scholarly anime mailing lists I mentioned. One student working on a dissertation was told that he was required to get permission for every thumbnail or image he had intended to include in his work- well more than a hundred. A few people chimed in about how such a requirement seemed excessive, but many who contributed to that conversation said they had to work under that same restriction: “No permission, no dissertation, no graduation.” Some flat out said that they were told to just avoid such use altogether- don’t even plan on using images at all. If you had planned to, change your plans. Write about something else.

That’s terrible. Even when the law is likely on your side, your institutional situation can put you in a position where you’re not allowed to assert your rights and do the type of research that could contribute certain types of understanding. And when universities take this type of attitude and base their practice on this attitude, it affects the rights of scholars everywhere. Looking at actual practice is part of evaluating fair use. Making your practices so very restrictive is not only detrimental to your researchers, but to everyone doing research.

We, the scholarly community, need to be fair use advocates. We can’t let fear rule our decisions.

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Another RIAA Copyright Horror Story

I was approached by an undergraduate student last week. She had recently received a letter from the RIAA demanding that she pay them a settlement for infringement. They had the names of seven songs, the times when the songs were shared and an IP address associated with the sharing. The organization had apparently issued a subpoena to the University of Texas, as the settlement letter was able to specifically name her with information provided from the University that showed the IP address associated with her EID (UT’s electronic identification) at those times. Here’s the problem.

She didn’t share those files.

You see, she was never able to quite figure out how to connect her laptop- her only computer- to UT’s new restricted secure 802.1x wireless network while on campus. That is not unusual- I’ve provided tech support to several people about that very issue since the implementation of the network.

So, while on campus, she used other people’s laptops to log onto the wireless network. And she frequently left the computer while still being logged in to the network. It’s not difficult to forget to log out- you often have to actively clear the credentials from the computer, and the early automated installers that set up the network didn’t provide an easy way to do so.

If anything, she’s guilty of not following UT’s Acceptable Use Policy. Technically, other people were using her EID. The consequences for that, however, should be far different from the consequences for infringement.

She called the RIAA, and they weren’t interested in her story or any proof she might be able to provide. They told her to settle. She’s contacted UT’s Legal Services, but as the person who might have actually done the sharing is probably also their client, so they have a conflict of interest and couldn’t represent her. She’s contacted other attorneys and all the people that she could think of, but all the while the clock is ticking. She has 10 days. After that, the RIAA takes further action, and the costs go up.

At this point in time it looks like she might have to settle and pay thousands of dollars for infringement that she didn’t commit.

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MPAA and software copyright

From Boing Boing, MPAA Rips Off Freeware Author. Cory Doctorow writes about someone at the MPAA making them hypocrites by not following software licensing terms. They used the coder’s free blogging tools, but didn’t link back to the author’s site or leave the lines giving him credit, as the terms and conditions required. Doctorow makes some very good observations.

Copyright law is hard. It used to only govern relations between giant industrial players. Copyright didn’t regulate reading an interesting tidbit from the newspaper for a friend. It didn’t regulate watching movies. But now, sharing a newspaper article with a friend (by blogging it) involves copying, and so triggers copyright. Now watching a movie (by downloading it) involves copying, so it triggers copyright. The rules that are supposed to be interpreted by lawyers at Fortune 100 companies now apply to every single kid working on a project for her class’s website.

This is like having to file with the SEC every time you loan a buddy $5 for lunch.

One would hope that the MPAA as an organization would learn from this experience.

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Texas joins Google project

As reported by the Austin Statesman, UT is apparently joining the Google digitization project (may require registration). I’d heard rumors that this was going to happen for quite awhile, but now it’s confirmed, and it looks like President Powers thinks it’s a good idea. I hope to find out more from people who work there soon. The University Libraries has committed to many digital projects recently. On one hand, it’s good that the University is doing some interesting things with digital preservation and similar projects; on the other, I really don’t think that all print materials can be considered “legacy collections,” as I’ve heard some refer to them. As for the Google participation, we’ll need to see what that means for us…

Update: UT’s Announcement

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And the publisher artist/split becomes apparent.

Assuming the IGN article is based on correct information, the RIAA wants to lower artist royalties

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Rational discussion about copyright?

Sorry for the absence; real life and all that.

But rational discussion about copyright? It can happen.
Cory Doctorow, SF author and Boing Boing blogger has a piece about copyright on Locus Online, an SF/Fantasy magazine.
Author’s lawyer C. Petite has a response on his blog Scrivener’s Error.

Both Doctorow and Petite are excellent sources to read about different views on copyright. I’d like to have our students compare these views in the copyright module in the near future.

Of couse, as chosaq reports not all interested parties appeal to logic. Take a look at chosaq’s coverage of the push for longer copyright protection in Japan, and note the sad expression of someone who’s work is only protected for life+50.

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Game FAQs and Copyright

My housemate has gotten around to playing Kingdom Hearts, and naturally he’s been reading the FAQ to play through it. (It’s the only way he plays.) I’ve used FAQs from GameFAQs before, and being the copyright nerd that I am I always read the copyright notices. They almost always contain erroneous information, and part of the reason appears to be that the most popular copyright notices are taken from the same sources. Here are some examples of how these FAQ copyright notices are wrong or, well, kind of silly.

-“No section of the guide can be used without permission.”
Well, that’s not entirely correct, but since this term is pretty common even with attorney-authored terms it’s not surprising. There are certainly legal uses of copyright material that don’t require the author’s permission, and in fact may be contrary to the author’s wishes. That concept applies to pretty much everywhere you see “all rights reserved” and similar statements, which is why those statements tend to be misleading.
-“This includes, but is not limited to posting on your website, making links to my guide, including parts of my guide in your own, or making reference to any material contained within.”
These terms betray some pretty fundamental misunderstandings of copyright in a couple of respects. As I just mentioned, some uses may fall under copyright exemptions. More importantly, copyright law usually doesn’t cover linking. Linking is almost always legal. There are some additional complications here involving the linking to materials that circumvent copyright protection, but as generally attemptiong to disallow linking through terms like this doesn’t actually have a legal basis, and is kind of silly. And “making reference to any material contained within…” doesn’t violate any kind of copyright law whatsover. I’m referencing things found within. I’m not doing anything illegal.

Mind you, earlier versions of this notice are worse.
-“By reading this guide, you automatically agree to these terms.”
Er, no. I don’t. Sorry. I’m just reading. I haven’t agreed to anything by just reading. This appears to be an attempt to make a copyright notice a contract. It’s not. You can go the Creative Commons route and allow additional uses that would ordinarily be covered by copyright in a license, but you can’t treat a license and a contract like they’re the same thing. Most of the time.
-“Any material found used without my permission is plagiarism, and I won’t tolerate it.”
Material used is not necessarily plagiarism. When material used is plagiarism, it might not necessarily be infringing on copyright. Copyright infringement is not equal to plagiarism, although they are related terms. Copyright infringement is a legal issue, and plagiarism is a (very serious) ethical issue. When plagiarism does correspond with copyright infringement, it’s probably illegal. Otherwise, it’s unethical. While you may not tolerate it, there’s actually not a lot you can do about it besides publicly shaming the plagiarist.

The copyright notice is better, but still somewhat misleading: This may be not be reproduced under any circumstances except for personal, private use. It may not be placed on any web site or otherwise distributed publicly without advance written permission. Use of this guide on any other web site or as a part of any public display is strictly prohibited, and a violation of copyright.

Well, that’s pretty standard fare. However, I can certainly take excerpts from an FAQ in certain circumstances and publicly display them without written permission. This notice falls under the same trap as most copyright notices- it ignores exemptions such as fair use, educational exemptions, library and archives exemptions and so on.

Now, their copyright FAQ does mention fair use, which is a plus, and does provide some basic information. Their FAQ also has a great deal of information that is a bit debatable, or at least could be expanded upon. The fair use question is a good example. Their emphasis on “limited portions” is usually correct, but there are situations in which the copyright-related use of a complete work can be fair. The examples they give, though, about posting complete FAQs without permission are probably not fair uses, and those are the types of uses they’re concerned about.

The ironic part of many of these notices is that if companies attempted to behave the same way, these FAQs wouldn’t exist. FAQs obviously “refer” to content in games, and many quote game text pretty liberally.

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The Quiet Demise of UT’s Knowledge Gateway

Back in 2002, then-President Faulkner of the University of Texas at Austin shared a vision: to provide Texans with online access to educational and cultural materials located and generated at the university in a digital Knowledge Gateway. The Chronicle of Education wrote about this Gateway, as did other news outlets, and the project soon received funding from a variety of sources. The Knowledge Gateway promised a great deal:

Research, education and sheer appreciation alone are no longer limited by campus boundaries or travel time to Austin. The Knowledge Gateway will let you access UT’s resources from the comfort of your own computer. Browse through the Jack S. Blanton Museum of Art’s extensive Latin American Collection, examine a map of Afghanistan from the Perry-Castañeda Library Map Collection or bone up on aquatic trivia with the Texas Memorial Museum’s Fishes of Texas exhibit. The possibilities are virtually endless.

The Knowledge Gateway, soon renamed UTopia, was very ambitious and apparently worthwhile collection of digital materials. Things didn’t quite work out the way they were planned, as revealed in the June 28th “Coffee with the Vice Provost” notes. The Vice Provost of the University Libraries announced that UTopia will be losing support and funding in 14 months, after “an unambiguous and final decision” by President Powers and the University Budget Council. There will be an attempt to relocate some library staff to other areas… but I know this loss of funding will be a blow to the library’s digital services.

The Gateway had problems early in its existence, many of which had to do with it’s management (from an outsider’s perspective, albeit an outsider who interacted with some developers). Some of the early architectural and technological issues were hammered out, but then what? Management seemed to float between the gateway being it’s own entity, being managed by Information Technology Services, and being managed by the University (then General) Libraries. Eventually, it became housed in the Libraries, which inherited a pretty difficult set of tasks burdened by ambiguity and some odd decisions.

Here are a few other concerns that I and a few others I knew had about the project. UTopia depended on content provided by UT organizations and faculty, but apparently was to be aimed at the K-12 range. While commendable, this may have had an effect on how much faculty would be able to contribute as products of their research. Providing UTopia with content also meant that the provider agreed to keep the materials current in perpetuity. That certainly could prove difficult with limited time, money, and effort from the original providers. There were also a few strange copyright concerns (which may have just bothered me since that’s what I’m interested in). According to the FAQ, content could be used by anyone as long as the University was given attribution- but according to the faculty agreements with the UTopia group, the faculty only signed over authority for the University to use the materials, and did not give permission for other parties to do so. (The University allows faculty members to own the copyrights in educational materials they create.) The copyright problems could have been worked through, but I’m not in a position to know how other concerns could have been addressed.

I haven’t seen any official announcements- I was waiting for it and almost missed this reference- so we’re still waiting to see what happens with the existing collections/projects and the people who are currently funded by UTopia. I don’t know if this action reflects on other digital collection attempts or not, but I’ll be trying to figure out how people measure the success of digital collections…

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