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University of Michigan to start releasing orphan works.

This news is pretty incredible- most institutions are risk averse, and it’s hard to blame them. As they point out, though, not sharing this works is harmful to scholarship and learning, while sharing them probably doesn’t harm anyone. But now we get to see what happens when an institution tries this type of action, and I’m very impressed that they’ve put themselves out there like this. And although I don’t have personal knowledge of what’s going on here, I’ll bet they do have plans and policies for what happens when an author or rights holder is found.

I just read about this decision on ALA’s academic freedom list, and I see that Scrivener’s Error has provided an analysis of a recent federal decision that adversely affects the availability of controversial materials to students. In an effort to promote “decency,” they’re getting books removed from the curriculum and the libraries.

When I was in junior high, I had an English teacher that similarly gave us the option of reading banned books. I read them all. I read Go Ask Alice, Johnny Get Your Gun, Where the Red Fern Grows, and other books that had been the victim of censorship. It was incredible to me other people thought that they should determine what I should read and actively deprive me access to those amazing works. I feel terrible for today’s students… This decision is not an appropriate way to deal with controversy.

Here’s one of my favorite responses to calls for book banning.

Earlier, I wrote about some of the common copyright mistakes students make while doing their copyright assignments. In those situations, students often assume that they have rights that they don’t have or (more importantly from the teaching perspective) haven’t really thought about the subject. I said I’d also write about some other situations. Here they are, reproduced from a page in the copyright module.

Brad Templeton is a software engineer currently on the board of the Electronic Frontier Foundation. He was an early Usenet and World Wide Web guru, and his article about 10 Big Myths About Copyright Explained was (and still is) widely circulated. The article was meant to address many of the misconceptions regarding copyright and the Internet, originally written in the mid/late 90s. I can quibble with a few things in the article (most of which can probably be attributed to the short length), but it’s still a great resource. I thought I would mention a few currently popular copyright myths, some of which I touched on in other places in the module.

1. Copyright is all about protecting the creator.
   This one is incorrect for a few reasons. First, the creator isn’t necessarily the copyright holder. More importantly, protecting the creator is a means to an end, and that end involves providing benefits to the public. Protecting the creator is important, but it is not the sole purpose of copyright law.

2. Unauthorized=illegal/You should always seek permission before using copyrighted material.
   You can’t always seek permission before using something copyrighted. This doesn’t necessarily mean that you shouldn’t use it, and it doesn’t always mean that you’re breaking the law when you do. There are exemptions to copyright law for a reason. In some situations, you can use copyrighted material even against the wishes of the creator – for example, when you are critical of a particular work. Seeking permission isn’t a bad thing, but you don’t always need permission, and you shouldn’t always look for permission. There are definitely times when it is appropriate, and there are times when it might not be. Take the time to learn about copyright exemptions.

3. Fair Use is only a defense to infringement/Fair Use is not a right.
   Saying that fair use is only a defense understates the situation. For example, we can also say that freedom of speech is only a defense using the same argument. Fair use (and freedom of speech) are usually affirmative defenses, which is a term describing procedural events in litigation. Fair use is a defense that the accused makes to defend against accusations of infringement. Being a defense does not preclude something being a right, however. In general, fair use represents first amendment rights in copyright law.

4. If you put a lot of work into something, it deserves copyright protection.
   Copyright (in the US!) is based on originality. Just because someone puts a great deal of effort into something doesn’t mean that it should be protected. The “sweat of the brow” argument was rejected by the courts in Feist Publications v. Rural Telephone Service. Copyright is intended to encourage creativity. In other countries, however, the law does offer protection based on this concept.

5. P2P technologies are illegal.
   Technologies generally aren’t illegal themselves. If a given technology is capable of “substantial noninfringing uses” (from the Betamax case), then the creators of that technology aren’t liable for infringement. It’s the intent of the creators of the technology (from the Grokster case), that determines whether or not creators might be liable for infringement. In general, however, it’s the users of the technology that can commit infringing acts, and not the technology itself. BitTorrent is not infringing, but some uses of BitTorrent are infringing.

6. Infringement is piracy is stealing.
   While I don’t really mind people making arguments that copyright infringement is like X because of Y, saying that it IS something is generally used as a direct appeal to emotion, without any of the argument actually expressed. We all agree that theft is bad, so calling infringement theft shortcuts any arguments to the contrary. COPYRIGHT INFRINGEMENT IS A CRIME. You don’t need to call it piracy, stealing, or theft to say that it is a crime. Those are all crimes in and of themselves with distinct legal meanings. This language is usually used to create a sense of panic and urgency, as described well in William Patry’s book, Moral Panics and the Copyright Wars.

7. The industry is losing Y dollars or X jobs because of Z (piracy, file-sharing, etc.)
   As described earlier in this module, these numbers are often made up or otherwise the results of poor research. There is very little empirical research about the effects of infringement. This is partly because this type of research is difficult. When you hear or read about these numbers, you should try to determine their source before making decisions based on those numbers.

8. If we don’t have stronger copyright laws, no one will create anything.
   William Patry answers this best.

   “Regrettably, policymakers (and even many copyright owners) have been taken in by the slogan that stronger rights are somehow not only inherently better but inherently necessary. There is no empirical support for this view, and much evidence to the contrary. If stronger protection is always better, why not make the term of patent protection life of the inventor plus 70 years too? If stronger criminal laws are necessary to deter infringers, why not impose the death penalty, as China has done? The only type of laws we need are effective laws, laws that are effective for their purpose, in the case of copyright, to promote the progress of science, in the words of the US Constitution.” (p. 39)
   -William Patry (2009), Moral Panics and the Copyright Wars, Oxford University Press.

   There is little to no evidence that stronger copyright laws will decrease creativity- and there’s actually some evidence to the contrary. Stronger copyright laws can act as a deterrent to creation.

9. Copyright Warnings are the Law.
   As mentioned earlier in the module, the NFL and the MLB are fairly notorious for making copyright claims that are essentially not true. This is true of other warnings as well. Notices that claim things like “no part of this may be reproduced without the written consent of…” or “any accounts of this broadcast are prohibited” are probably overreaching and probably ignore copyright exemptions. View such notices with some skepticism, and look into the specific situation if you would like to use such material.

10. Copyright is black and white.
    In my experience, the answer to almost any reasonable copyright question is “It depends.” Is file-sharing legal? It depends on what you’re sharing, who you’re sharing it with, and why you’re sharing it. A great deal of gray area exists in copyright law. That doesn’t make dealing with copyright easy, but it does allow some leeway in using copyrighted material.

One of the criticisms people have about the Digital Millennium Copyright Act relates to Section 1201, Circumvention of Copyright Protection Systems. Generally, if a digital work has some kind of technology stopping someone from copyright it or otherwise using it in similar ways, it is illegal to circumvent that technology- even if that particular use would be legal in other circumstances. Fair use*. Education. Libraries & Archives. Personal use. And so on. If there’s a digital lock on it, you can’t go around it except in some very specific circumstances. If you work at a library, archives, or nonprofit educational institution, for example, you can circumvent protection in order to evaluate whether or not you want to purchase the item. But otherwise, if you have a legitimate need to go around these measures, you have to rely on the Section 1201 Rulemaking procedure.

The Section 1201 Rulemaking procedure was intended to provide exemptions to this part of the law for legitimate uses. Reading the Congressional testimony on the DMCA is troublesome. If you’re interested in how the law came to pass, I highly recommend Jessica Litman’s 2001 book, Digital Copyright, particularly the chapter called “The Bargaining Table.” The chapter goes into some detail about content industries used their lobbying and access privileges to get the law past, generally at the public’s (and fair use’s) expense. (More on this and the role of cultural institutions later.)

During this procedure, the public and other interested parties have the opportunity to present arguments for the creation of exemptions. Opponents also have the opportunity to respond to these arguments. The Register of Copyrights and the Copyright Office make a report with recommendations about which exemptions should be made. The Librarian of Congress makes his or her decision about the exemptions. These exemptions last three years.

The latest Rulemaking provisions were delayed. They should have been released in 2009, but were instead extended, and the new exemptions were published today.
Section 1201 Rulemaking on Anticircumvention

There’s some good news, particularly for educators. I just contributed to a paper involving a film and media studies project, where educators and students pretty much need to rely on fair use for what they’re trying to do. The exemption that was previously very narrowly constrained to film and media professors has been broadened to include professors and students. That’s good. That being said, I still think that people will have to rely on fair use in the long-term, though, for reasons I’ll discuss below.

Edit: Neat- the circumvention also covers “noncommercial use;” I expect this will be debated in very strong terms in the near future. ^_^

The big news that’s being published on the tech blogs is that it is now legal to jailbreak your iPhone. I wonder, though, about how this will affect licensing terms in the near future…

There were other exemptions granted, such as for security testing of DRM on video games.

An interesting thing I noticed this time around was that one provision was considered but not recommended by the Register, but ended up being recommended by the Librarian: circumvention for the blind. The exemption allows circumvention of DRM when all existing electronic versions of a work prohibit the read-aloud or screen-reader functionality. The Register was sympathetic to the argument, but didn’t recommend it mainly due to the procedural requirements.

There are problems with the 1201 Rulemaking procedure. One, people have to present evidence that the exemption is needed every three years, and proponents of the exemption have the burden of proof. This process can certainly ensure that potentially legitimate exemptions are lost. That’s why we can’t circumvent site-blocking censorship lists anymore. That’s also why the Register didn’t recommend the exemption for the blind- her office felt that they didn’t meet the burden of proof required by the statute. The procedure is complicated, cumbersome, and can be expensive- and has to be repeated every three years. These circumstances don’t particularly favor the public interest.

Of course, this rulemaking actually refers to the circumvention itself- it doesn’t really address the distribution of material used for circumvention, which is also prohibited by 1201.

*The text of the law actually says that nothing in the law should affect fair use. While I do appreciate this inclusion in the text of the law, it doesn’t actually seem to have affected much. Litman’s “Digital Copyright” also notes that content owners have successfully argued that fair use can not be a defense against circumvention. There’s a bit of scholarship on the issue- check out Thomas J. Loos, Fair Use and the Digital Millennium Copyright Act, 13 Mich. Telecomm. Tech. L. Rev. 601 (2007), for one example.

The lower Rio Grande Valley was an interesting place to grow up, for a lot of reasons. One of them is the climate; it’s an interesting mix of temperate/coastal/desert/subtropical environments, which can lead to exposure to a wide range of biological diversity, even if one isn’t inclined to go out and look for it. My mother was a high school biology teacher for 20 years before she entered the library world, so I probably had a few more opportunities than most to see some of it.

One of my earliest memories involves South Padre Island- specifically, visiting the home of the person we knew as the Turtle Lady, and of course, her turtles. The Turtle Lady, whom I now know as Ila Loetscher, was an amazing woman who dedicated the latter part of her life to saving endangered sea turtles, particularly the Kemp’s Ridley. I remember attending a show in her backyard, where some of the turtles that lived there performed for us, and we got to meet and touch the giant creatures. It was, to put it simply, awesome.

The Kemp’s Ridley is one of the endangered species that makes its home in the Gulf of Mexico for its entire life. One of my first reactions to the BP oil catastrophe was about these turtles- the Gulf is the only place they live, and the oil will certainly reach their nesting grounds. I decided to look up the Turtle Lady’s charity- Sea Turtles, Inc, and see if there was anything I could do in even some small way. Both Sea Turtles, Inc., and another great site, seaturtle.org allow you to “adopt” sea turtles to help in their rehabilitation or research. And you get some pretty nifty stuff as well when you donate- pictures, magnets, a plush doll, and so on, depending on the org. One of the really interesting technologies that wasn’t around when I was a kid is access to an online map that shows where the turtles are, based on the tracking device on the turtles. For example, here’s Lafitte, the Kemp’s Ridley I “adopted” from seaturtle.org. I hope other people find that technology interesting. I really hope that people pay attention to the environmental effects- so much of what I’ve seen on the news either downplays or doesn’t address the issue at all. These ecologies are fragile. I hope to attend one of the turtle hatchings at South Padre next year. I hope we still have these hatchings in the future.

Neil Gaiman writes a wonderful blog. I love most of the things that he stands for and supports- and very much amongst the things he supports and discusses are libraries.

Imagine my surprise to read that “librarians” were upset over his speaking fee (former link mysteriously moved). Basically, it seems that some people- presumably at least one anonymous librarian- were very upset by his $45,000 speaking fee at a public library. Gaiman’s response, however, is incredibly enlightening– and I certainly question why the newspaper with such a problem *didn’t just ask him or the library to explain what was going on.*

So. I was asked if I’d come and talk at Stillwater, and be paid $40,000. I said, “That’s an awful lot of money for a little library.”

“It’s not from the library. It’s from the Legacy Fund, a Minnesota tax allocation that allows the library to pay market rates to bring authors to suburban libraries who otherwise wouldn’t be able to bring them in. They have to use the money now as it won’t roll over to next year and expires next month.”

“Ah.”

And he gave the freaking money to charity. His blog post talks about the situation a bit more, but the stories and a number of the more pointed comments are just silly. I’d be amazed if people in the library community were seriously upset by his actions, and in my opinion they really shouldn’t be- Gaiman does a lot of libraries, not the least of which is writing some pretty amazing works.

From the “No kidding?” department, apparently, the GAO agrees that doing this type of research is tough in their new 41 page report. ^_- I actually think they did fairly well in pointing out some of the problems in these research methodologies.

Three widely cited U.S. government estimates of economic losses resulting from counterfeiting cannot be substantiated due to the absence of underlying studies… no single method can be used to develop estimates. Each method has limitations, and most experts observed that it is difficult, if not impossible, to quantify the economy-wide impacts. Nonetheless, research in specific industries suggest that the problem is sizeable, which is of particular concern as many U.S. industries are leaders in the creation of intellectual property…

…We determined that the U.S. government did not systematically collect data and perform analysis on the impacts of counterfeiting and piracy on the U.S. economy and, based on our review of literature and interviews with experts, we concluded that it was not feasible to develop our own estimates or attempt to quantify the economic impact of counterfeiting and piracy on the U.S. economy.

Leaving aside some of the possibly questionable assumptions inherent in the type of questions Congress wanted the GAO to examine, let’s look at the numbers. So, already existing government numbers?

Three commonly cited estimates of U.S. industry losses due to counterfeiting have been sourced to U.S. agencies, but cannot be substantiated or traced back to an underlying data source or methodology.

Well, those are some favorite cited numbers- what else do we have? How about the BSA?

While this study has an enviable data set on industries and consumers located around the world from its country surveys, it uses assumptions that have raised concerns among experts we interviewed, including the assumption of a one-to-one rate of substitution and questions on how the results from the surveyed countries are extrapolated to nonsurveyed countries.

MPAA Studies?

It is difficult, based on the information provided in the study, to determine how the authors handled key assumptions such as substitution rates and extrapolation from the survey sample to the broader population.

At least there was one academic paper cited in this area.

The study indicated that downloading illegal music can have a positive effect on total consumer welfare. However, as explained by the authors, this experiment cannot be generalized; the data consist of a snapshot of undergraduate students’ responses, which is not representative of the general population.

Yup. Possible positive effects, but you can’t necessarily extrapolate those findings to the public. That’s important when looking at these types of studies- they’re not necessarily generalizable. That’s pretty much a constraint of ANY study of this type, including the others mentioned that had highly questionable assumptions and equally questionable methodologies. The lack of generalizability doesn’t mean that the study isn’t useful- you can still plan courses of action at least informed by such studies, and of course you can plan to do additional research.

I think that it’s really important that people use real numbers when making arguments about what law and policy should accomplish. The problem is, people don’t really seem to have any kind of incentive to do that. Law and policy seem to be made on talking points related to the horrible numbers and other appeals to emotion not based on evidence, and that is a shame.

Appropriately enough as my students are reading the Open Source Module (previously the Unix & Linux module), Novell has won the jury trial, and did not transfer the copyrights in Unix to SCO. Groklaw continues to be a valuable resource in its coverage of this case and other issues.

This decision hopefully removes what little cloud hung over Linux. The cloud was small because of the lack of evidence of infringement, Caldera’s (then-SCO) licensing Linux under the GPL, and the likelihood that the allegedly copyrighted material could be coded around. It’s still a good thing that Novell won, because SCO could would have caused problems with increased litigation and threats of litigation in any alternative scenario.

Even with the loss, SCO, of course, plans to continue its litigation campaign as it can. I am afraid to predict the death of the organization, because I thought that these issues should have been settled years ago, but somehow it just keeps on going and going and going…

And that wasn’t an April Fool’s joke. Here’s an interesting one from the Austin Chronicle, though:
The End of UT Football
“Governor, Lege order budget cuts; ‘Students must come first,’ says Powers”

which is all the more wonderful/terrible because all of the numbers in the various articles are pretty much accurate.

The instructors of INF 312 find some common problems in student submissions to one of our assignments. Here’s some advice to students. I expect that it may be useful to others.

• Just because it’s educational does not mean that it’s automatically a fair use. I mention this fact in the copyright module, bolded. The educational purpose of your assignment is part of a fair use argument, but it can’t be the sum of a fair use argument.
• The public domain is awesome. The public domain can also be a little bit tricky. Consider classical music- Vivaldi’s Allegro is in the public domain. The London Philharmonic 2002 recording of Vivaldi’s Allegro is not in the public domain. A new expression of an underlying work in the public domain might have its own copyright associated with it. This doesn’t mean that you can’t use the work, but you have to have a different justification for doing so, or you have to use the original work that is actually in the public domain.
• Works created by the federal government are in the public domain- but not every work on a government website was created by the government, including portraits. Images might have copyright associated with them even if you find them on an official federal government site. Unless it specifically says otherwise, don’t assume that you’re free to use it. Again, you can make a fair use argument- and chances are, a pretty strong one- with such works, but you actually have to make that type of argument.
• Not every Creative Commons license is identical. Some of them specifically require you to use “Share-Alike” when you license your derivative work. Some of them specifically mention that they don’t allow derivative works. You need to pay attention to the specific terms of the license when licensing your own content.
• Just because you have a picture of yourself does not mean that you have copyright in the picture. You may have some rights of publicity in the picture, but that doesn’t mean that you can do anything you want with it. If you took the picture yourself, then you have copyright in it. If you didn’t, then someone else does. Saying that “it’s a picture of me” or that it’s a picture of you that you have at your house/on your computer is not a copyright argument.

That’s a bit on the restrictive side of a copyright argument. We also see problems in the other direction. I’ll talk about those in a later post.

At least, it’s one I’ll hope to adhere to in the future.

-Whoever uses the word “entitlement” in his or her argument loses.