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Posted this as a comment on another blog.

Followed the link from Sivacracy. I don’t 100% agree with everything Siva writes, but I still think he’d be a good guy to go to lunch with. 😛 He really does know a LOT of librarians and talks to them regularly. He isn’t particularly friendly with the publisher perspective, either, though.

Personally, I’m torn on the subject of Google’s digitization project. I’m not a librarian, but I’ve got my MLIS, I work at a library school, and I’m a doctoral student there as well (studying, among other things, copyright and its effects on the missions of cultural institutions). I’m also one of the ALA copyright scholars. I can say with complete certainty that the librarians that are members of the copyright scholar group and ALA’s own copyright committee, representing librarians from around the country, are not completely behind Google’s actions in this case. We’ve been pretty divided, actually. In that setting, I actually usually defend Google in that I believe their use should be fair- but I also think that there are downsides to the Google project as well. I’m glad that Siva at the very least brings some of these issues to our attention. I don’t completely agree with his fair use analysis, although I am familiar with the Tasini, MP3.com, and Arriba cases.

From a copyright perspective, I think it would be great if Google’s use was considered fair use. I agree with part of your statement. Digitiziation is not an either/or proposition. If Google’s use is fair- well, that would just make it all the easier for other groups, including libraries, to take similar actions. Just because Google is doing it does not mean that libraries, or other interested parties, can’t also digitize. Google does have the resources to take action now, and most libraries certainly do not, but I don’t think that immediacy is necessarily a positive thing in this particular situation. It kind of depends on the end result, doesn’t it? Digitization for digitization’s sake isn’t necessarily good.

That being said, I don’t think that what Google is doing is not necessarily good for libraries and information users. In the short term, I think it is. I agree that visibility is a good thing; my gut reaction to the project, when I first heard about Google Print a couple of years ago, was very positive. I think the ability to keyword search for particular books is great. I started having my doubts when I read the contract that Google worked out with the universities. I don’t know that it’s particularly good for users in those systems. I also think that “the choice is ‘Google digitizes everything’ or ‘libraries digitize less than 1%'” is just as much a false dichotomy as Google digitizes everything or libraries digitize everything. There are many ways that libraries or other institutions can participate, and there are better ways for Google or other for-profit institutions and libraries to work together. The contracts could be much better for the university libraries than the existing one with Google, I think. The libraries can’t do some things that would really make this project worthwhile, I believe, due to Google’s control of the digitized forms. I find this ironic, given that libraries that meet copyright law requirements actually do have more leeway to work with copyrighted materials than Google does.

The benefits I see in this project are the general benefits of digitization- additional gains of use such as searching and indexing, and the potential of increased access to material. I agree with Cory Doctorow that it would be in the publisher’s best interest to work with Google. I don’t necessarily know that it’s in the users’ overall best interest. DRM and proprietary formats are problematic. I don’t automatically believe that big corporations are a bad thing, but I do believe that big corporations do not necessarily have the public’s best interests paramount. Nor do all libraries, either, but most public libraries do tend to have missions and mandates that reflect the public interest, while corporations tend not to. (I hope to be studying the missions and laws related to cultural institutions more when I start my dissertation.) When serving the public interest might harm a corporation financially, they may be very well obligated to act against the public interest. Libraries, museums, and archives often have legal mandates to act for the public, and are I think the public’s best advocates in these situations over the long term. On a somewhat related note, I don’t know how Google’s cataloging is- and I do not believe that keyword searches are a replacement for good cataloging, which is increasingly a view that I disturbingly find cropping up.

I read Sivacracy and Madisonian.net pretty regularly. I don’t particularly agree with either one about this particular case all of the time, but I really respect what they have to say. I’ve been quoted on both of them briefly (“not a librarian after all” from Sivacracy, and Madisonian’s misunderstanding of my argument about making a fair use argument rather than a library exemption argument, which was my fault). The Google issue has been very interesting- it’s the first time that people I read and agree with regularly actually disagree with one another in some pretty strong terms.(On a complete side note, if you’re looking for a blog representing what I think is the author’s perspective, Scrivener’s Error is also an excellent one!) I’m glad that they’re engaged in the conversations that they are engaged in, though.

Geez. So overall, I think Google’s use should be fair, but that libraries still have a responsibility to digitize as well, and are probably better stewards of information than Google is.

Wow, this got long, sorry!

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Original message on Not Liz.

…is the name of the first class I’m taking as a doctoral student. There are several issues here, all of them worth writing about here or in a “real” publication. ^_^; It’s keeping me busy, particularly examing the software issues associated with automating crawling, saving, and archiving websites and having to worry about archival standards of authenticity. (Future subjects: how digital archives and records management differ, authenticity and integrity of electronic archives, determining the authenticity of an archived dynamic web site, intellectual property issues in absolutely everything).

Copyright issues are also keeping me busy. I may address a conference in South Texas in May. I need to work on ALA’s library copyright website. I’ll be addressing a few classes here this semester. There are some very interesting copyright issues that I’ll need to look at right away. The iSchool is currently working on a project for the Harry Ransom Center, currently in possession of some 1950s interviews of some very famous people by another famous person. I don’t know how much I can write about this publicly yet, so I’ll hold off. However, the copyright implications are really fascinating. There are several contracts involved, some of them pre-Internet. There are contractual materials that have been lost in various disasters. The original company that owned the interviews does not exist. The assumed owner has licensed HRC to do various things with the records. People at our school will be digitizing the materials, creating trascripts and digitizing already created transcripts, and creating derivative works that allow searching, indexing, and so on of the transcript+video.And then the plan is to put at least some of these materials online… staggering. ^_^

In other news, the fact that “libraries” and “archives” are not legally defined in US Law comes up so often that the Section 508 Group formed by the Library of Congress to address the problems in 508 will be having roundtable discussions involving the issue, as well as a variety of subjects involving digital copyright.

The Anime News Network reported that sale of fan art based on properties that the artist does not own the copyright for or have a license to produce will not be permitted at the Otakon artists’ alley this year. The issue turned out to be not quite as broad as that. Here are my collected responses from forums (so I don’t lose ’em).

Read the rest of this entry »

From Groklaw, 3 initiatives to improve patent mess.

Wired 13.12: Thinking Outside the Box Office

Steveb Siderbergh’s new flick will be released on DVD, HDTV, and movies all at once… and a bit on copyright and the Grey Album, too.

New Copyright Law Lets Photographers Register Unfinished Work

“It’s one step removed from registering an idea,” says photographer John Harrington.

Disturbing…

I’ve returned from DC from the ALA copyright scholar program… there will be some big changes at the Library Copyright web site soon, and I think it will be a more useful resource soon. I got to meet a group of great people, all interested in copyright, and the ALA Washington Office staff, who were very cool.

Scrivener’s Error has some very interesting analysis the “plot patent” proposed by a very strange person. There’s some discussion on Groklaw as well, including a reply from the creator of this patent. Ugh.

According to news.com, the US Department of Justice is pushing for stronger copyright laws and really appears to have completely ignored the public interest entirely (perhaps “sold out the public,” but I’d have to learn more than is in the article) in it’s rush to create new types of copyright law and create greater penalties. What is considering “attempting to infringe?” The penalties are already ridiculous, and I view this move with a great deal of suspicion. It’s certainly not a positive development for the public. I doubt it’s a positive development for the industries that are supporting it, either. Many of the artists they represent are already testing the bounds of the existing law, and I suspect there will be more artists who are at cross purposes with their publishers and representative groups as time passes and the law leans more towards a maximalist society. This type of move serves to stifle creativity, and whatever deterrence to piracy (and their definition of piracy and others’ definitions of piracy are certainly different) is certainly not worth the outrageous harm they are proposing to the Constitutional basis for copyright law, promoting the progress of science and useful arts…

The Author’s Guild v. Google case is understandably being discussed by many people interested in copyright. I find all these opinions quite interesting. I know that Georgia Harper, UT System’s lawyer, believes that Google’s use is fair, as do most of the Copyfight crowd. I know Siva Vaidhyanathan isn’t so sure, and from what I gather he doesn’t think Google should be taking the action it’s taking because of the possible detrimental consequences to the public. C. Petite from Scrivener’s Error has been critical of the procedural aspects of the case, but also critical of many people’s reliance and interpretation of the famous Kelly v. Arribasoft decision in a recent post.

The third factor of a fair use analysis examines the amount and substantiality of a work used. In Kelly, the court figured that this factor counted neither for nor against the thumbnailing use. Scrivener’s Error, if I’m following the argument correctly (which is by no means guaranteed) believes that copying the complete work in this case would lead to the use not being fair, based partly on this factor. He asks the following question (paraphrasing from the evaluation in Kelly stating that copying of the whole work was necessary),

Is it necessary to copy the entirety of a textual work to “allow users to recognize the [work] and decide whether to pursue more information about the [work]”?

I think it’s a good question. Let me back up a bit, for my own sake. ^_^

Google is performing at least two activities that would ordinarily be the right of the copyright holder- copying the books and displaying excerpts of the books online. The means of displaying exerpts may be fair use (and I think it is, although reasonable people disagree). Is the entire copying of the books fair? I’d like to think so, but I’m not entirely sure. People I’ve talked to believe that the two actions- the copying of the entire work and the displaying of the work – are inseperable when analyzing fair use, which takes the purpose of the use into account. I can see that, particularly after reading Kelly, which distinguished the two but recognized the overall purpose in its fair use analysis. The author of Scrivener’s Error, I think, believes that a fair use analysis based on the above quote, if developed fully, would weigh against the copying of the entire work.

As Scrivener’s Error notes, what Google is doing and what Arriba did isn’t exactly the same. He takes that fact and asks some questions that I find fascinating in his first footnote, which he’ll get to later. I hope he does, because I asked similar questions in class but we didn’t get to really address them. ^_^; However, I also think that these differences make the rephrasing of that question above slightly off. The original statement in Kelly reads that “it was necessary for Arriba to copy the entire image to allow users to recognize the image and decide whether to pursue more information about the image or the originating web site.” This highlights one of the differences- Arriba was looking at images, and Google is looking at text. Why is that important in this context? Because I don’t think that “recognizing” an image in a graphical index in order for a user to evaluate their potential interest in the image is the same as “recognizing” text in an index or keyword search function.

The post on Scrivener’s Error mentions that the quote above has been shortened into the idea of “indexing,” which professional index-preparers would deny (as well as the Second Circuit courts, but I’m not going to address that). I’m not so sure about that, but I don’t know if in terms of fair use arguments equating the above quote with indexing matters all that much. The indexers I’ve met- mainly acadmemic, admittedly- do tend to recognize search engines as near kin to what they do, although there are differences. In my experience, some traditional indexers tend to view search engines as inferior. Note that in the Indexing and Abstracting course once taught here, one of the goals of the course was to “appreciate the limitations of indexing and searching software.” Of course, we also have classes that teach data mining and search engine related technologies. I have no problem referring to the actions of a search engine as indexing. However, I don’t think that the fair use analyses I’ve looked at solely rely on the Appeals Court’s evaluation of the third factor when they refer to of indexing. In their analsysis of the first factor, the purpose of the use, the Court notes that the purpose of Arriba’s action was to “index and improve access to images on the [I]nternet and their related websites” and note the transformative nature of Arriba’s actions. I think Google has an even stronger first factor than Arriba- digitization of text offers a great deal more in the ability to index and search text then Arriba’s copying of already digital images. That’s a whole paper on itself at some time, though, so I’ll leave that alone for now. Anyway, if the purpose is “indexing,” given the differences between text and graphics I think the question should be a bit different.

I would rephrase, looking at the third factor. Is the digital copying of the complete work necessary for users to find information about the work and seek additional information about the work?

Also, though, in the overall fair use analysis of the case, two of the factors were for Arriba, one was neutral, and one was slightly in favor of Kelly. The neutral’s swinging towards the Kelly would have changed the overall analysis, but I don’t know by how much overall.

Just saw this press release:
LexisNexis CopyGuard
The system appears to be a plagiarism detection tool. They’re working with iParadigms, a comany which uses terms like “intellectual property theft” and seeks to “combat the piracy of intellectual property and ensure the originality of written work.” I’m a bit skeptical. Of course, originality is a criterion for copyrightable material, but ideas can’t be copyrighted, and text has to be pretty similar for copyright trouble… but I guess the accuracy of the tool depends on how well their searching and matching software works.

iParadigms also runs turnitin.com, which has some issues of it’s own involving student ownership of material, privacy and other fun subjects. This service will use “four to five years of archived Web pages from iParadigms.” I wonder about this part… where are these pages coming from? Are they coming from the Internet? If the Internet Archive is having to justify what it does in regards to copyright law, how would a commercial entity do the same?

Several stories from the last few days have been fairly grim.

Reading Harry Potter before release date illegal illustrates a view that some content industries love- that you shouldn’t even be able to read something without the author’s permission. This story is from Canada, and I’m not familiar enough with Canadian law to determine whether that viewpoint is accurate or not, but I certainly don’t think it’s accurate in the US. Michael Geist has a few things to say about the situation (July 12-13) and its attacks on the freedom to read, freedom of expression, and personal property. In the US, there’s also the doctrine of first sale…

In Australia, a man has been found guilty of hyperlinking. Combine that with proposed amendments to Canadian law that would make search engine activity illegal and a copyright infringement lawsuit against the Internet Archive’s Wayback Machine, and you’ve got a good picture of how law and policy can affect the Internet as we know it.