First of all, I think I've figured out what the strange definition of subscription period we ran into on Friday means. In order to get the exact wording, I found the same definition in the example Blackwell license from last week. The definition is as follows: "that period nominally covered by the volumes and issues of the Licensed Material, regardless of the actual date of publication." I think this refers to the fact that, for example, the October issue of a journal is often published and distributed in the middle of September. If a library's license ended on September 30th, it would not have access to the October issue, according to this definition, even though the issue was published during the time of its license.
Moving on to this week's reading, I noticed that Learn@UW does not comply with one of the CONFU Guidelines for E-Reserves. Specifically, these guidelines recommend "on a preliminary or introductory screen, electronic reserve systems should display a notice, consistent with the notice described in Section 108(f)(1) of the Copyright Act." That particular section states that a notice should be posted informing patrons that making a copy may be subject to copyright law. After carefully looking through Learn@UW, I have not found this notice on any of the pages from login to actually viewing course reserves. The fact that I can't find this notice is especially interesting because according to the expert report by Kenneth D. Crews, UW-Madison states in its E-Reserves policy that there will be a "copyright notice on screen" as well as on the material itself. However, I did find something interesting in reading all the fine print on Learn@UW. There is an interesting sentence in the privacy notice on the main page stating "federal law and UW-Madison policy require that you must not reveal any information about classmates, course work content, or its authors to anyone outside the course." This passage intrigues me because I am curious about its purpose. Perhaps it is meant to protect the privacy of students' comments in discussion, content a professor might post and may want to publish in a journal later, or even the fact that a particular student is taking the course.
Reading about policies on E-Reserves this week is especially timely because I have an entire one hundred page book to read for another class this week that is posted on E-Reserves. Neyer recommends that if professors are handling their own E-Reserves, policies should be distributed to them stating restrictions such as "items that cannot be digitized and placed on electronic reserves would include an entire book." Perhaps my professor avoided this restriction by obtaining permission from the author or publisher to distribute the entire work. One aspect of this book that complicates its distribution is that it is by a local author and out of print. A quick internet search reveals that it is not easily obtained from any online vendors besides Ebay. Ebay clearly cannot be relied upon to provide approximately forty copies to the students in my class and I feel that lack of availability should be included as a factor to consider in an E-Reserves policy.
Something I found interesting in both Russell and Neyer is the fact that both include quotes encouraging fair use so that, in the future, standard practice doesn't limit fair use. For example, if all libraries developed a policy of limiting photocopying to one page of a work, eventually most patrons and librarians would assume it was against the law to copy even two pages. I especially like the quote in Russell from "a former U.S. Register of Copyrights" which states "'If you don't use fair use, you will lose it!"' I found this advocacy for using fair use interesting because it appears that Georgia State University did just that and ended up in a lawsuit. Granted, the lawsuit only started on April 15th, 2008 and the quotes in both Russell and Neyer are from years before the lawsuit occurred. I wonder if those quoted would express the same sentiment now.
Sunday, September 26, 2010
Saturday, September 18, 2010
Week 3 - Contemporary Licensing Best Practices
One part of the UCITA article I found interesting was the amendment added for libraries. This allows public libraries to accept donations of software even if the shrink-wrap contract indicates otherwise. However, this applies only to "computer software that is transferred in a computer." I found this interesting because the downtown branch of the Cleveland Public Library has a moderately sized collection of software that is definitely not within computers and can be borrowed from the library. If Ohio were put UCITA into law, then this collection would need to be removed. Additionally, without Ohio passing UCITA, the Cleveland Public Library could be affected by it if the licenses of any of the software within its collection specified that Virginia or Maryland law (the two states where UCITA has been passed) governed the software. This is possibly because Ohio is not one of the states that has passed "bomb shelter" legislation. When looking through the software collection, I noticed it was all quite old which I assumed was simply because it was donated. However, after reading this article, I wonder if the software placed in the collection all has license agreements made before Maryland and Virginia passed UCITA.
Reading the patent law section of chapter seven in Russell reminded me of a couple things. First, this section renders a particular point made by Litman invalid. In chapter seven of last week's reading, she makes an argument about copyright by comparing fashion and recipes with the usual subjects of copyright such as movies, music, and books. She starts by stating that if there were no intellectual protection for fashion designers and food creators, then mass-market clothing producers and downscale restaurants would copy the creations of their more expensive counterparts. This would result in no incentive for new designs or recipes so no one would make them. Litman then points out that stakeholders debating copyright typically make this incentive argument when lobbying for strong copyright protection. She means to disprove this claim by stating "of course, we don't give copyright protection to fashions or food. We never have." Although accurate, this statement does not consider patent law. According to Russell, processes such as the steps in a recipe and designs such as "novel and ornamental clothing" or "the exterior of a Samsonite roller luggage" are covered by patents. As a result, fashion designers and food creators are given protection over their works so her argument that these industries run just fine without intellectual property protection is not accurate.
Second, the patent law section reminded me of the movie Flashes of Genius. This movie details the legal battle between Robert Kearns and the Ford Motor Company over Ford stealing the intermittent windshield wiper design that was patented by Kearns. I particularly remember a court scene in which Ford's lawyer was claiming that the patent should not have been granted because Kearns' design simply arranged standard parts. After reading Russell, I realize he was making this claim because patents should only be granted to applications that are "novel, useful, and non-obvious." To show the novel and non-obvious nature of Kearns' design, Kearns' lawyer brought out a copy of The Tale of Two Cities by Charles Dickens and argued that it too was made of arranging standard parts known as words. No one could claim that The Tale of Two Cities is not a novel and non-obvious creation and Kearns eventually won the trial.
Reading the patent law section of chapter seven in Russell reminded me of a couple things. First, this section renders a particular point made by Litman invalid. In chapter seven of last week's reading, she makes an argument about copyright by comparing fashion and recipes with the usual subjects of copyright such as movies, music, and books. She starts by stating that if there were no intellectual protection for fashion designers and food creators, then mass-market clothing producers and downscale restaurants would copy the creations of their more expensive counterparts. This would result in no incentive for new designs or recipes so no one would make them. Litman then points out that stakeholders debating copyright typically make this incentive argument when lobbying for strong copyright protection. She means to disprove this claim by stating "of course, we don't give copyright protection to fashions or food. We never have." Although accurate, this statement does not consider patent law. According to Russell, processes such as the steps in a recipe and designs such as "novel and ornamental clothing" or "the exterior of a Samsonite roller luggage" are covered by patents. As a result, fashion designers and food creators are given protection over their works so her argument that these industries run just fine without intellectual property protection is not accurate.
Second, the patent law section reminded me of the movie Flashes of Genius. This movie details the legal battle between Robert Kearns and the Ford Motor Company over Ford stealing the intermittent windshield wiper design that was patented by Kearns. I particularly remember a court scene in which Ford's lawyer was claiming that the patent should not have been granted because Kearns' design simply arranged standard parts. After reading Russell, I realize he was making this claim because patents should only be granted to applications that are "novel, useful, and non-obvious." To show the novel and non-obvious nature of Kearns' design, Kearns' lawyer brought out a copy of The Tale of Two Cities by Charles Dickens and argued that it too was made of arranging standard parts known as words. No one could claim that The Tale of Two Cities is not a novel and non-obvious creation and Kearns eventually won the trial.
Saturday, September 11, 2010
Week 2 - Copyright and Licensing History (part 2)
Reading the CONTU guidelines regarding photocopying for ILL purposes actually gave me some new ideas for my group's scenario from class on Friday. I am in the group debating whether it is allowed under copyright for a library to stop subscribing to a journal and rely on obtaining its content from Interlibrary Loans. According to the guidelines, the library should buy the journal if it requests "within any calendar year for a total of six or more copies of an article or articles published in such periodical within five years prior to the date of the request." Our scenario only stated that the amount of use was "moderate" and did not state whether the articles used were over five years old or not. Considering these guidelines, I now feel that the library should keep detailed track of how often the journal is used and what articles are referenced before deciding whether to stop their subscription.
Since Professor Anuj Desai will be coming to class on Friday, I have spent some time thinking of questions regarding the ProCD vs. Zeidenberg court case. First I would like to know a very obvious question - how was the case actually ruled? Does Professor Desai feel that this was a fair ruling or perhaps influenced by the fact that ProCD was most likely much larger than Zeidenberg's company, Silken Mountain Web Services, and, consequently, was able to contribute more monetarily to the trial? Second, is the real problem here the commercial use of a consumer version of ProCD's product? Would ProCD be happy with a ruling that required Zeidenberg to buy the commercial version and allowed his company to continue to resell the information in ProCD's database?
Moving on to Harris' text, before even getting to chapter one, I noticed something interesting. The copyright page does not state the usual warning: "All rights reserved. No part of this publication may be reproduced in any form without the prior permission of the publisher." According to Russell, this statement is false because reproduction and fair use exemptions still apply. Instead, Harris' book states a much more accurate description of its copyright: "All rights reserved except those which may be granted by Sections 107 and 108 of the Copyright Revision Act of 1976."
Reading the actual assigned chapters, one aspect of license agreements that I had not considered is that libraries can be content owners and may need to use license agreements to let others use their content rather than only using the agreements to obtain content. This makes a lot of sense because some libraries function as the archives for their town. For example, in This Book is Overdue! How Librarians and Cybrarians Can Save Us All by Marilyn Johnson, the public library of Deadwood, South Dakota holds the archive of rare books and genealogical records for Deadwood dating back to the 1800s.
Lastly, I am in strong support of Litman's proposal for copyright revision after finishing Digital Copyright. Her basic idea is to recast "copyright as an exclusive right of commercial exploitation" rather than basing copyright on control over copies of a work. The definition of a copy of a work is increasingly difficult to determine with today's technology. This new principle would simplify copyright by removing the confusing mix of rights and exceptions so that the public can understand and follow it. For example, at my undergraduate school, our Film Society was paid to report on campus groups breaking copyright law by advertising a particular movie or TV show they were showing at an event. According to a strange exception in copyright law, a group would be allowed to advertise the viewing of "a popular British romantic comedy" but not state Love Actually on their fliers. Basing copyright law on commercial rights would remove illogical exceptions such as this one and, instead, perhaps require the group to pay a small fee for publicly showing the movie or require no fee at all since attendees would be more likely to buy the movie after viewing and enjoying it once anyway.
Since Professor Anuj Desai will be coming to class on Friday, I have spent some time thinking of questions regarding the ProCD vs. Zeidenberg court case. First I would like to know a very obvious question - how was the case actually ruled? Does Professor Desai feel that this was a fair ruling or perhaps influenced by the fact that ProCD was most likely much larger than Zeidenberg's company, Silken Mountain Web Services, and, consequently, was able to contribute more monetarily to the trial? Second, is the real problem here the commercial use of a consumer version of ProCD's product? Would ProCD be happy with a ruling that required Zeidenberg to buy the commercial version and allowed his company to continue to resell the information in ProCD's database?
Moving on to Harris' text, before even getting to chapter one, I noticed something interesting. The copyright page does not state the usual warning: "All rights reserved. No part of this publication may be reproduced in any form without the prior permission of the publisher." According to Russell, this statement is false because reproduction and fair use exemptions still apply. Instead, Harris' book states a much more accurate description of its copyright: "All rights reserved except those which may be granted by Sections 107 and 108 of the Copyright Revision Act of 1976."
Reading the actual assigned chapters, one aspect of license agreements that I had not considered is that libraries can be content owners and may need to use license agreements to let others use their content rather than only using the agreements to obtain content. This makes a lot of sense because some libraries function as the archives for their town. For example, in This Book is Overdue! How Librarians and Cybrarians Can Save Us All by Marilyn Johnson, the public library of Deadwood, South Dakota holds the archive of rare books and genealogical records for Deadwood dating back to the 1800s.
Lastly, I am in strong support of Litman's proposal for copyright revision after finishing Digital Copyright. Her basic idea is to recast "copyright as an exclusive right of commercial exploitation" rather than basing copyright on control over copies of a work. The definition of a copy of a work is increasingly difficult to determine with today's technology. This new principle would simplify copyright by removing the confusing mix of rights and exceptions so that the public can understand and follow it. For example, at my undergraduate school, our Film Society was paid to report on campus groups breaking copyright law by advertising a particular movie or TV show they were showing at an event. According to a strange exception in copyright law, a group would be allowed to advertise the viewing of "a popular British romantic comedy" but not state Love Actually on their fliers. Basing copyright law on commercial rights would remove illogical exceptions such as this one and, instead, perhaps require the group to pay a small fee for publicly showing the movie or require no fee at all since attendees would be more likely to buy the movie after viewing and enjoying it once anyway.
Monday, September 6, 2010
Week 1 - Copyright Basics and History
This week, I read Russell first even though it was listed second on the syllabus because I wanted to get an overview of copyright from a relatively neutral source before reading Litman's arguments. Overall, I really enjoyed Russell's text because she incorporates interesting case studies and works hard to break up the unavoidably dense and sometimes confusing parts of copyright law with question/answer and tip sections. Plus, I haven't had a textbook that included pictures just for fun since about 5th grade.
Anyway, one of the things I learned from Complete Copyright is that a particular urban legend I've heard is completely false. As an undergraduate, I would sometimes hear from members of fraternities and sororities a story something like this: "All Greek organizations' rituals are in the Library of Congress but ours is not because [such and such president/supreme court justice/famous political member of speaker's organization] took ours out." Having a written copy of their ritual in the Library of Congress is somewhat upsetting to members of Greek organizations because ritual is supposed to secret. However, from chapter one, I now know that the only reason a document would end up in the Library of Congress is because someone wanted to register it for copyright. The only reason to do this is to file a copyright infringement suit or allow someone to contact the author for permission to use the work. Since rituals are supposed to be secret, neither of these actions are desirable and there is no reason to register for copyright.
Moving on to Litman, I quickly realized that she has some strong opinions about copyright, specifically the Digital Millennium Copyright Act. In evaluating her arguments, I wondered some very basic questions - who is Jessica Litman? Is she an expert in the field and, therefore, qualified to make these arguments? Finding no answers to these questions at the front or back of the book, I discovered her biography on the University of Michigan Law School website (http://web.law.umich.edu/_FacultyBioPage/facultybiopagenew.asp?ID=346). In part this states:
Before rejoining the Michigan faculty in 2006, Professor Litman was professor of law at Wayne State University in Detroit, a visiting professor at NYU Law School and at American University Washington College of Law, as well as a professor at the University of Michigan Law School from 1984-90. In addition, she has taught copyright law at the University of Tokyo as part of the Law Faculty Exchange Program. Professor Litman is a past trustee of the Copyright Society of the USA and a past chair of the American Association of Law Schools Section on Intellectual Property. In addition to serving on the advisory board for the Public Knowledge organization, she is a member of the Intellectual Property and Internet Committee of the ACLU, the Advisory Council of the Future of Music Coalition, the advisory board of Cyberspace Law Abstracts, and the American Law Institute.
Clearly, from all these experiences, she is an expert on copyright and well qualified to form opinions. With a new respect for the author, I returned to the text. One of the main themes I noticed is that Litman is very critical of copyright lawyers who make their income from clients (as opposed to her position as a professor). She makes this obvious at the beginning of chapter two by stating "copyright lawyers are a peculiarly myopic breed of human being." Furthermore, she argues that copyright laws are purposely written to be confusing so that clients will have to pay lawyers to translate them. The alternative is to disregard the laws and end up in court at which point a copyright lawyer will still need to be hired. For example, proprietors of small businesses unaware of the fact that they need to buy a license to play music in their business "went to court to protect their supposed right to play music - every year - at a cost of hundreds of thousands of dollars." This is quite ridiculous and, so far, I agree with Litman in that copyright laws need to be completely rewritten to be more readable although my opinion may change with reading the second half of Digital Copyright next week.
Anyway, one of the things I learned from Complete Copyright is that a particular urban legend I've heard is completely false. As an undergraduate, I would sometimes hear from members of fraternities and sororities a story something like this: "All Greek organizations' rituals are in the Library of Congress but ours is not because [such and such president/supreme court justice/famous political member of speaker's organization] took ours out." Having a written copy of their ritual in the Library of Congress is somewhat upsetting to members of Greek organizations because ritual is supposed to secret. However, from chapter one, I now know that the only reason a document would end up in the Library of Congress is because someone wanted to register it for copyright. The only reason to do this is to file a copyright infringement suit or allow someone to contact the author for permission to use the work. Since rituals are supposed to be secret, neither of these actions are desirable and there is no reason to register for copyright.
Moving on to Litman, I quickly realized that she has some strong opinions about copyright, specifically the Digital Millennium Copyright Act. In evaluating her arguments, I wondered some very basic questions - who is Jessica Litman? Is she an expert in the field and, therefore, qualified to make these arguments? Finding no answers to these questions at the front or back of the book, I discovered her biography on the University of Michigan Law School website (http://web.law.umich.edu/_FacultyBioPage/facultybiopagenew.asp?ID=346). In part this states:
Before rejoining the Michigan faculty in 2006, Professor Litman was professor of law at Wayne State University in Detroit, a visiting professor at NYU Law School and at American University Washington College of Law, as well as a professor at the University of Michigan Law School from 1984-90. In addition, she has taught copyright law at the University of Tokyo as part of the Law Faculty Exchange Program. Professor Litman is a past trustee of the Copyright Society of the USA and a past chair of the American Association of Law Schools Section on Intellectual Property. In addition to serving on the advisory board for the Public Knowledge organization, she is a member of the Intellectual Property and Internet Committee of the ACLU, the Advisory Council of the Future of Music Coalition, the advisory board of Cyberspace Law Abstracts, and the American Law Institute.
Clearly, from all these experiences, she is an expert on copyright and well qualified to form opinions. With a new respect for the author, I returned to the text. One of the main themes I noticed is that Litman is very critical of copyright lawyers who make their income from clients (as opposed to her position as a professor). She makes this obvious at the beginning of chapter two by stating "copyright lawyers are a peculiarly myopic breed of human being." Furthermore, she argues that copyright laws are purposely written to be confusing so that clients will have to pay lawyers to translate them. The alternative is to disregard the laws and end up in court at which point a copyright lawyer will still need to be hired. For example, proprietors of small businesses unaware of the fact that they need to buy a license to play music in their business "went to court to protect their supposed right to play music - every year - at a cost of hundreds of thousands of dollars." This is quite ridiculous and, so far, I agree with Litman in that copyright laws need to be completely rewritten to be more readable although my opinion may change with reading the second half of Digital Copyright next week.
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