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April 17, 2009
The appellate court has decided, on narrow grounds, that the judge in the Tennenbaum RIAA case was wrong to allow an upcoming hearing to be webast. ZDNet has a helpful article.
April 14, 2009
In its response to Charlie Nesson’s argument that one of the hearings in an RIAA suit ought to be webcast, the RIAA lawyer said:
“[The video footage] will be readily subject to editing and manipulation by any reasonably tech-savvy individual. Even without improper modification, statements may be taken out of context, spliced together with other statements and broadcast (sic) rebroadcast as if it were an accurate transcript. Such an outcome can only do damage to Petitioner’s case.”
So, Chris Soghoian is running a contest, asking you to mash up testimony given to the FTC about Digital Rights Management (DRM). The prize: He donates money to EFF. The real prize: The scalding breath of comedy.
April 10, 2009
The abstract of a new paper by the pioneering Pam Samuelson and Tara Wheatland:
U.S. copyright law gives successful plaintiffs who promptly registered their works the ability to elect to receive an award of statutory damages, which can be granted in any amount between $750 and $150,000 per infringed work. This provision gives scant guidance about where in that range awards should be made, other than to say that the award should be in amount the court “considers just,” and that the upper end of the spectrum, from $30,000 to $150,000 per infringed work, is reserved for awards against “willful” infringers. Courts have largely failed to develop a jurisprudence to guide decision-making about compensatory statutory damage awards in ordinary infringement cases or about strong deterrent or punitive damage awards in willful infringement cases. As a result, awards of statutory damages are frequently arbitrary, inconsistent, unprincipled, and sometimes grossly excessive.
This Article argues that such awards are not only inconsistent with Congressional intent in establishing the statutory damage regime, but also with principles of due process articulated in the Supreme Court’s jurisprudence on punitive damage awards. Drawing upon some cases in which statutory damage awards have been consistent with Congressional intent and with the due process jurisprudence, this Article articulates principles upon which a sound jurisprudence for copyright statutory damage awards could be built. Nevertheless, legislative reform of the U.S. statutory damage rules may be desirable.
April 9, 2009
In a comment to a distressing post about YouTube automatically taking down any video that contains any copyrighted material, even if it’s covered by Fair Use, a commenter posts a seemingly learned post explaining why “Happy Birthday” may indeed not be under copyright.
And to think of all the years I spent singing “For She’s a Jolly Good Birthday” instead!
March 29, 2009
I just heard Robert Darnton on On The Media talking about the Google Book settlement. (Sorry, but I don’t yet see a link specifically to that interview.) Brilliant. The two things I’d recommend reading about this massive and massively important deal are Darnton’s piece in the NY Review of Books, and an article by James Grimmelmann.
The book settlement is hugely complex, hugely important, and overall a big step forward. But, the ur-cause of the issues many of us have with it is that it’s a settlement among authors, publishers and Google, which leaves readers, scholars, teachers — AKA the rest of us — out.
March 24, 2009
It’s the first International Ada Lovelace Day, when we celebrate women in tech by blogging about a woman in tech. My choice this year is Wendy Seltzer. This list of projects she’s been instrumental in of course does not tell the whole story, but it’s a good place to start.
Wendy graduated Harvard Law with a ticket to high-priced everything, but instead has dedicated her legal skill and deep technical understanding to preserving the Net as a place for free speech and free culture. She was a lawyer for EFF for years, an original and sustaining Berkman fellow, a careful observer of ICANN, the heart, head and hands behind ChillingEffects.org, and someone who never hesitates to pitch in when there’s a way to keep the Net open to all.
Wendy is modest and shy, and will undoubtedly be made uncomfortable by my singling her out. But, hey, what are friends for? :) Wendy, it makes me happy to know you are working for us all, and even happier to call you my friend.
March 17, 2009
David Post is giving a talk at the Berkman Center about his book In Search of Jefferson’s Moose. I haven’t read the book yet, but it looks fascinating. It looks at cyberspace through Thomas Jefferson’s eyes. [NOTE: I’m live blogging, with all the weaknesses and inaccuracies thereupon. Be warned. And I’ve done a particularly poor job of capturing the details of David’s talk.]
David says the Net is all about scaling. “The Internet isn’t big because it’s the Internet. It’s the Internet because it’s big.” It’s the inter-network that got big. Jefferson figured out how to scale a democratic republic, which works at the town level but hadn’t worked at the national level. Likewise, he says, we need to be thinking about how scale law and governance for this new territory.
He gives the example of copyright. Even if you wanted to clear the copyrights for a YouTube, it’d probably take you 10 hours. Copyright doesn’t scale. “Copyright is supposed to be incentivizing creators” but these works only get created if people ignore copyright. Jefferson scaled a republic to continental scale, we need to do the same for the Net, he says. David says he doesn’t know how to do it. Not through the UN. “We need collectively to begin working on this.” He sees his book as the start of that conversation.
He says we should buy his book because “the omens are with me.” The day he sent off the final draft of his manuscript, a male moose was standing in front of his house in Vermont. The moose stands there for a day and a half. It’s the first one he saw in twenty years. Then, a week after the book was published, they found a complete fossilized skeleton of a mammoth under the new Thomas Jefferson law school, and under that was a whale, and under that there was a giant ground sloth of the same genus as the one Jefferson wrote a scientific paper about. His book is about scale and they find a mammoth, a whale, and a giant sloth under the Jefferson law school.
Q: [zittrain] You’ve vindicated a strand of thinking about the future of the Net. Just as Jefferson was living in a privileged time to think about frontiers, is cyberspace undergoing a similar transformation from frontiered to settled and suburbanized?
A: No. Not if we can keep it growing and, um, generative. There’s a self-fulfilling aspect to our discussions of this. It continues to be a frontier.
Q: [benkler] Why did you mention the UN? Are you suggesting we turn to it? What made the republic scalable was its loosely coupled architecture. That’s what made the Net grow. What is the shape of this international that’s not UN that’s presumably more grownup than cyber-jurisdictions, that retains this loosely coupled…
A: I really don’t know. It’s not too farfetched to think about small groups joining together into larger and larger organizations and coming to the table and saying they deserve respect as a law-making body. It might happen via real world courts that might say that they respect the local laws of this community on the Net.
Q: [benkler] What’s not sustainable about muddling through?
A: It’s totally sustainable, although there are scaling problems that will need to be addressed in some form or another. But then we’ll miss the opportunity to build something even more extraordinary.
Q: You say in the intro that this isn’t a scholarly work, but at the end you do take on the unexceptionalists [i.e., those who think the Net isn’t an exceptional case]. How do you get from your discussion of scale at the routing level to the application layer.
A: Take Wikipedia as an application. I’m not sure that it can continue to scale.
Q: I’m interested in the interaction between copyright law and publishers. We no longer need publishers for the dissemination of scholarly information…
A: I don’t know what the future of copyright looks like. A subtext of the book is to try to have people start fresh, at least as a thought experiment. How might we design copyright law? I don’t know what that looks like or how we get there from here, but it’s worth thinking about … The Jeffersonian insight is that there are two types of people: Those are instrumentalists who only want copyright law if it helps people to create. Others think it’s a moral or natural right. These two views are irreconcilable.
Q [zittrain] Do we need a constitutional convention for the Net? The Clean Slate project at Stanford, David Clark at MIT…What do you think about those projects? If you were at a Clean Slate meeting, what would your charge to them be?
A: They may be premature. I’d like to see a call to netizenship, i.e., citizenship in this space. Taking seriously this as a place where important things happen. At Clean Slate, I’d start with copyright because you could get a consensus among netizens that the system is profoundly broken and needs a new paradigm…maybe a hybrid of law and tech.
Q: [me] Do you worry that if there were a founding constitutional moment for the Net, it might provide an opportunity for, say, the Taliban to object to the very protocols of the Net (as well as the rest of the stack) because the protocols don’t permit the control of content? Might we end up with something far from what you and I want?
A: I worried about this when ICANN was founded. I don’t know, but I have Jeffersonian faith that more discussion is better than less. You have to shine your light and take the chances that you will lose those battles.
Q: [lewis hyde] The Google Books settlement is a constitutinal moment. Isn’t this an example of an ad hoc agreement: Two parties show up in court and the court settles it. If you could change one thing in the settlement, what would it be?
A: I don’t want to shoot my mouth off about that. The Google Books settlement illustrates a point about scaling. There are 40M people who have written books who aren’t represented.
Q: [ethanz] Why doesn’t the conversation start earlier than consitutional moments, i.e., with revolutions that give you the constitutional moment. When and how do we reach the point where we say we can’t just muddle along. We rebel against Facebook but we only get a new fiat from FB. When do we stand up and say that we need to govern ourselves?
A: That’s why I say constitutional moments may be premature. We’re in early days. When people live more of their lives in cyberspace, then I think they care more about the rules under which they live.
February 26, 2009
Peter Suber, Research Prof. of Philosophy at Earlham College, a visiting fellow at Yale Law’s Information Society Project, and blogger of open access news, is giving a full-house lecture at Harvard, sponsored by the Berkman Center. [Note: I’m live blogging, making mistakes, leaving things out, paraphrasing ineptly, etc. POSTED WITHOUT PROOFING or even with a basic re-reading. Speed over accuracy. Welcome to the Web :(]
Peter says he’s going to assume that we know what open access is, etc. But he does want to define Green Open Access (= open access through a repository) and Gold OA (= OA through a journal). There’s also Gratis OA (free of charge but may be licensing restrictions) and Libre OA (free of charge and free of licensing restrictions).
Peter says he doesn’t know the future of OA. He likes Alan Kaye’s comment that the future is easier to make than predict. He’s going to talk about 12 cross-over points in OA, in rough order of when they might occur:
1. For-pay journals allow green OA. About 63% of these journals already do this.
2. OA books:: When there are more gratis OA books online than in the average university library. We crossed this a couple of years ago. “The permission problem is harder than digitization.” The next cross over point here is getting more libre OA books online, which we are quite a distance from.
3. Funder policies: “When most publicly-funded research is subject to OA mandates.” This seems to be spreading, Peter says. Today, 32 public funders and more than 3 private funders have OA mandates.
4. Green OA deposits: “When most new peer-reviewed manuscripts are self-archived when accepted for publication.” In particle physics, this happens routinely. If 20% of researchers publish 80% of the articles, we could reach cross-over fairly quickly in some fields.
5. Author understanding: “When most publishing researchers have an accurate understanding of OA.” This is happening, but notvery quickly.
6. University repositories: “When most universities have institutional repositories,” individually or as part of a consortium. This is happening slowly. In the absence of a universal repository, every university ought to have one. Universities will get to this point more slowly than funders because they move more slowly than funders. And we ought to ask why. Aren’t universities interests in line with OA?
Libre gold OA: “When most OA journals are libre OA.” Most OA journals are still merely gratis, but curb copying to drive traffic to their site. This crossover could happen overnight if the journals understood the issues. They’d lose a little traffic, but nothing else. There are grounds for optimism: Open Access Scholarly Publishers Association is an assoc of OA journal publishers and it requires libre gold OA. The SPARC Europe program sets standards for what a good OA journal is, and it recommends CreativeCommons attribution licenses. These two orgs are helpful because there’s no topdown org defining OA, so we rely on bottom up orgs like these two to set the standards.
8. Journal backfiles: “When most TA journals have OA backfiles.” This is expensive to do. Google will do it, but Google’s terms are difficult: They don’t give the journal a copy of the digital files. (Libraries do get copies of the files of the books they let Google scan.) The OCA focuses on public domain literature. “Once digitized, the benefits of increased visibility and citations should outweigh the trickle of revenue.” Journals make most of their money from new issues, so having greater presence should help. In physics, almost 100% of articles are available OA but the publishers can’t see any dip in subscriptions.
9. Author addenda: “When most new research is covered by author addenda” (i.e., additions that grant OA permission, tacked onto standard publisher-author contracts). Now there are few adopters. It’d be good to standardize these. The cross over will come when universities or funders require it. If enough journals allow green OA, that’d make addenda unnecessary.
10. University policies: “When most university research is subject to university-level OA mandates.” Today, 27 universities and 4 depts have these mandates. It’d help to have the largest/most productive universities move on this first.
11. OA journals: “When most peer-reviewed journals are OA.” “I don’t expect this for a long time.” Now 15% are OA. Progress is slow, but there is progress. High prestige journals are likely to hold out for a long time.
Libre green OA: “When most green OA is libre OA.” Today, only a small fraction is libre OA because most OA repositories depend on permission from publishers. UKPMC Funders Group demands green libre. We will reach the cross-over “when it’s safe.” Harvard has taken the lead on this, Peter says, and it will spread as another large university takes this step, then another one … “It becomes self-fulfilling leadership.”
Q: Are we stuck with the Sonny Bono copyright extension act?
A: Yes. All copyright reform in the past few decades have been in the wrong direction. And it’s very hard to roll back copyright terms. The only silver lining is that when we have a consenting partner, we can bypass copyright via contract. The problem is that they’re not the default.
Q: Under libre OA, how are our scholarly attributions protected?
A: It’s a range. One end is public domain, which does not preserve attribution. But all the CreativeCommons licenses preserve attribution. Most scholars don’t want public domain; they want CC-attribution.”Creative Commons attribution license provides everything a scholar could want.”
Q: [me] Conyers!
A: The Conyers bill would tell agencies not to require OA for works they fund. [I’ve put this badly.] The OA advocates are fighting it, but the agencies affected are not yet. I think Conyers is serious about it. I think he introduced it early because we don’t have a Sect’y of Health and Human Services or of NIH. Conyers may be fighting a turf battle. [Paraphrasing!] “He’s motivated primarily to protect the jurisdiction of his committee.” Peter thinks it won’t pass, but it might be introduced into another bill. “We’d like to spread the NIH policy to the rest of the government.”
Q: Is the economic downturn accelerating the adoption of OA?
A: The NIH just got $10B in the stimulus, which means there will be more and more OA articles. NSF also, but not as much because NSF requires OA for reports generated by those they fund [may not have gotten this right]. But, Peter thinks the downturn strengthens the case for OA. Libraries are going to be canceling subscriptions. And the Stimulus’ emphasis on green research will be more valuable if it’s OA. Open access to research amplifies its value.
Q: [jpalfrey] You’ve noticed there’s no OSF equivalent for OA. But I’d argue that the people in this room — librarians — are your OA OSF. What do you say to these librarians to advance our common cause?
A: Librarians are among the most important allies in the OA movement. But put all the allies together and you still don’t have OSF. Libraries should be sending letters against the Conyers bill. When you negotiate subscriptions you should negotiate the right to pur articles from your authors into an OA repository. Libraries are the only buyers of peer-reviewed journals. When you’re the only buyer, you can dictate your terms, subject to anti-trust. Obama says that we have the right to demand transformation from the banks we’re saving. Librarians can do the same thing for journals. Journals are not serving all of our interests and are acting against other interests. Use your bargaining power. Get the right of self-archive, and, when the time is right, get the right of libre self-archive. Network with one another when you launch repositories. And, btw, every school with an enlightened OA policy had librarians in the head of the charge.
Q: Can you give an example of an archive that works?
A: Universities that have mandatory language still have to supplement the language with incentives and education. As you go from unmandated to mandated, it goes from 15% toward 100%. (15% is the average for voluntary, spontaneous archives.) It works best in the Dutch universities that let the “cream” of the article rise to the top. Every week they feature good work in public. This gets academics to archive their work without a mandate.
Q: Might universities work with publishers collaboratively to create new business models?
A: Publishers differ in their attitudes toward OA. Some are experimenting in good faith. Some, in bad faith. Some who do OA are actively lobbying for the Conyers bill. Librarians understand the scholarly landscape better than publishers and could educate publishers. Society publishers [i.e., societies that publish] could be told that they’re threatened not by OA but by the “big deal” that brings in academic journals.
Q: Is Springer’s taking over of BioMed Central a good thing?
A: Yes. BMC is for-profit. BMC was the world’s largest OA publisher. Now Springer is. Springer says that OA http://arubatourism.com/assets/blog/index.php?=buy-viagra-through-paypal/ is a sustainable part of their bsiness. My reading is that Springer is preparing for an OA future.
February 25, 2009
The Financial Times yesterday ran a terrific op-ed by James Boyle, explaining the ridiculousness of the Conyers bill “that would eviscerate public access to taxpayer funded research.” The op-ed is written in Jamie’s light-hearted-yet-penetrating style, and should be read simply for that reason — preeminent legal scholars of copyright are not supposed to be entertaining.
Then, at the end, he adds an argument that I think is crucial because it addresses the Internet’s effect on knowledge and authority:
Think about the Internet. You know it is full of idiocy, mistake, vituperation and lies. Yet search engines routinely extract useful information for you out of this chaos. How do they do it? In part, by relying on the network of links that users generate. If 50 copyright professors link to a particular copyright site, then it is probably pretty reliable.
Where are those links for the scientific literature? Citations are one kind of link; the hyperlink is simply a footnote that actually takes you to the desired reference. But where is the dense web of links generated by working scientists in many disciplines, using semantic web technology and simple cross reference electronically to tie together literature, datasets and experimental results into a real World Wide Web for science? The answer is, we cannot create such a web until scientific articles come out from behind the publishers’ firewalls….
February 24, 2009
Mark Gibbs reports on a, oh, let’s say over-zealous New Zealand copyright law:
This insanity, found in Sections 92A and C of New Zealand’s Copyright Amendment Act 2008 establishes – and I am not making this up – a guilt upon accusation principle!
Yep, you read that right. This means that anyone accused of “copyright infringement” will get his Internet connection cut off; and treated as guilty until proven innocent.
And if that weren’t enough, this crazy legislation defines anyone providing Internet access as an ISP and makes them responsible for monitoring and cutting off Internet access for anyone who uses their services and is accused of copyright violations. Thus libraries, schools, coffee shops, cafes – anyone offering any kind of Internet access – will be considered ISPs and become responsible and potentially liable.
Yikes. That is some extra nasty legislation.
[Minutes later] GlobalVoices reports:
A large swatch of New Zealand’s political blogosphere shut down its websites for a half-day on Monday, February 23 in protest of a copyright law that could have required internet service providers from disconnecting users who download pirated materials like movies or music.
…
The protest appeared to work as Prime Minister John Key announced he will stall the proposal for one month as he looks to forge a compromise with ISPs and copyright holders. If a solution cannot be found, Section 92 will be scrapped.
Be sure to read the entire GlobalVoices article, though. It explains how the boycott happened, points to similarly scary legislation elsewhere, and, of course, aggregates what the NZ blogosphere has been saying about this.
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