Libology Blog

Google has reached a settlement with the group of publishers who filed suit in 2005 over the book digitization project.  It is a legal document with many elements, and I cannot hope to make an overall evaluation of the agreement with just the amount that I have browsed (much less with my limited ability to discern the true meaning of legalese).  However, there are a couple of sections that raise questions:

7.2 Fully Participating Library Uses… (b) Use of Library Digital Copies… (vii) Personal Scholarly Use and Classroom Use. The Fully Participating Library, if part of a Higher Education Institution, may allow faculty members and research staff of that Higher Education Institution to read, print, download or otherwise use up to five (5) pages of any Book from its LDC [Library Digital Copy] that is not Commercially Available for the following purposes: (1) personal scholarly use (for each Book, no more than once per person per term) and (2) classroom use in such Higher Education Institution that is limited to the instructors and students in the class and for the term in which the class is offered; provided that (a) the Fully Participating Library does not know at the time of such use that it is in material non-compliance with Section 8.2 (Security Standard, Security Implementation Plan and Security Audits) with respect to uses of the LDC authorized pursuant to this Section 7.2(b)(vii) (Personal Scholarly Use and Classroom Use), and (b) the Fully Participating Library keeps track of and reports all such uses of Books to the Registry in the course of the audit conducted pursuant to Section 8.2(c) (Audits) or, otherwise, upon reasonable request of the Registry, provided that such requests may be made no more than semi-annually. The Registry may make information from such reports regarding the usage of an individual Book available to the Rightsholder of such Book upon request of the Rightsholder. A Fully Participating Library may not read, print, download or otherwise use a Book or Insert through its LDC pursuant to this Section 7.2(b)(vii) (Personal Scholarly Use and Classroom Use) if such use is available through the Institutional Subscription and the Institutional Subscription service is offered or is available to the Fully Participating Library (whether for a fee or as a beta product) at the time such Fully Participating Library seeks to make such use.” (page 76)

The agreement defines Commercially Available as “…that the Rightsholder of such Book, or such Rightsholder’s designated agent, is, at the time in question, offering the Book (other than as derived from a Library Scan) for sale new through one or more then-customary channels of trade in the United States.” (Section 1.28 on page 4)  Does this mean that if a researcher or faculty is able to read (or print) only up to 5 pages of the scanned book each semester for personal scholarly use - and then only if the book is not able to be purchased through “customary channels of trade”?

Am I interpreting this correctly?  Is this not a severe restriction of the “Fair Use” clause of copyright?  Why would a researcher want to agree to such limitations when the physical item allows for a broader use?  I may be misreading this section, however, and hope to have it clarified in the near future.

Another section that gives me pause:

Section 3.8 (b) Effect of Changes in Law. Google will be able to take advantage of any future legislative change(s), such as legislation allowing the use of orphan works (if enacted), that put Google at a competitive disadvantage in its use of Books in any Google Products and Services that are subject to this Settlement Agreement; provided, however, that Google may choose to receive the benefit of such change(s) only if a third party is actually taking advantage of such law(s) in connection with services that competitively disadvantage Google in its provision of any such Google Products and Services; provided, further, that no changes in the “fair use” doctrine as codified in Section 107 of the Copyright Act shall trigger this Section 3.8(b) (Effect of Changes in Law).” (page 37)

So if a legislative body, such as the United States Congress, passes a law that allows for broader use of this type of material (i.e. a change in copyright law), Google can only put the broader use into Google Books if it can demonstrate that another company is already taking business away from them by implementing it; otherwise, Google must keep the higher restrictions in place.

In addition, what happens if “fair use” is broadened?  It won’t trigger this section.  Does that mean that Google can follow fair use, or that Google cannot?  The fair use provision seems to be placed on an equal footing as the “competitively disadvantage” clause.  Does Google pass along the broader use understanding, or does it just pass?

For better or worse, this settlement is going to dramatically change how libraries use electronic books.  Hopefully the overall agreeement implements a positive experience for all parties involved, and that my concerns (and the concerns of others) are either misread clauses or taking a section out of context.

The element of this agreement that holds great promise is the potential for institutional access to the entire collection of scanned books.  Imagine having millions of books available to our patrons via a usable and cost-effective agreement.  We are moving towards the future; are we ready for it (and the future for us)?

Further information and links:

• Contents of the Google Book Search Copyright Settlement
• Librarian.net
• Official Google Blog
• Panlibus Blog
• Open Access News

An interesting situation is brewing over at the TechCrunch blog.  Michael Arrington, upset over the Associated Press going after bloggers who quote from AP stories, has argued that the AP is not taking Fair Use into consideration and has declared that he will not report on stories distributed by AP.

Extreme?  Not if you take into consideration the APs rate schedule for online quoting of their articles.  If your quote of an AP source contains just five words, you are supposed to pay them $12.50!  I doubt that there are many AP articles short enough to make a five word quote not fall into Fair Use (plus, I assume under this fee schedule that quoting just four words is free).

The new twist is that an AP article about the controversy contains a 22-word quote from the TechCrunch blog that Arrington says was “in clear violation of their warped interpretation of copyright law”.  His response:  his lawyer is submitting a takedown request and a bill for $12.50, in order to hold the AP to their own standards.

I have written about “copyfraud” before, most notably here, but this is a fantastic example as it involves a company that derives tremendous benefits from the application of Fair Use.

In a brief essay titled Orphan Works:  A Rant, posted on ©ollecanea, Kenny Crews presents an interestingly common example of how a common encounter results in an orphan work.

“…I kindly handed the camera to a total stranger, requesting a photo of the whole gang. The stranger complied, took a picture, and handed that camera back to me. I might own the camera and stored image, but the tourist who just drifted back to Iowa composed the picture and evidently under the law owns the copyright.”

It is extremely unlikely to become an issue for those of us who are on either side of the camera in this situation, but the potential is there.  An absolute stickler for copyright would need to have a release form handy, or limit their use of the photo to that allowed under the fair use section.

Now we understand that these situations reflect a favor without any expectation of payment, but it is interesting that in the current legal environment we would need to recognize these possibilities.  What if it were to turn out that one of the people was (or is about to become) famous, and the photograph is later featured on the cover of a national magazine?  Then the photographer might become interested in the fine points of copyright law.

Primer on Copyright Liability and Fair Use is part of the Citizen Media Law Project’s Legal Guide, scheduled to launch later this month.   It contains a great introduction/overview of what is allowed and not allowed with copyright.  Best of all, it presents the topic without lapsing into copyfraud hyperbole.

found via LISNews

The topic of Copyfraud has been on my mind for the past few months.  It is interesting how once you start noticing something relatively subtle, you can reach a point where you start seeing it all the time.  This has been one of those things.

Copyfraud is best defined by the above linked Wikipedia article, but what I seem to keep encountering is the overly restrictive assertions of copyright by those who should know better.  The most grating example I have encountered, more so because it is such an interesting publication, is the photocopy authorization statement in the magazine Strategic Finance:

Authorization to photocopy Strategic Finance.  Items for internal or personal use, or the internal or personal use of specific clients, is granted by the IMA to libraries and other users registered with the Copyright Clearance Center (CCC) Transactional Reporting Service, provided that the base fee of $3.00 per copy, plus 30¢ per page, is paid directly to CCC, 222 Rosewood Drive, Danvers, MA 01923.  (www.copyright.com) ISSN 1524-833X, $3.00 + 30¢.

For reprint information contact …[section omitted]…

For permission to make 1-50 copies of articles contact:  Copyright Clearance Center www.copyright.com or fax (978) 774-4470.

Read it carefully… it doesn’t quite state that an individual making a copy of an article for personal use must be registered with the CCC and pay the fee, but it really reads that way.  I read it as if an individual isn’t a library, then they fall into the “other users” category.  If that is correct, then registration and payment seems required.

Which is balderdash, of course.  Fair use is very well established for this behavior.  If restricting photocopies in the manner were allowed under copyright law, then Inter-Library Loan and much of the personal and professional educational research behavior as we know it would disappear.

Another example:  The other day someone told me of an experience they had in a library while doing research for their Master’s thesis.  They had an 18xx edition of a book that was one of their primary sources.  It wasn’t in the best of shape, so she decided to photocopy the entire book to save it from wear.  A library employee stopped her from making the copies because it was “against copyright”.  Buzzzzz, wrong answer… anything created before January 1, 1923 is public domain, and therefore free of any and all copyright restrictions.

Remember to focus not only on the restrictions, but on the freedoms of copyright.  I don’t know if the person who stopped her was a librarian, but remember that to most patrons, we are all librarians (which to me translates to “we are all information professionals”).  This means that we should be sure to have at least a basic understanding of individual freedoms when dealing with copyright, and should be sure to not overextend our answers beyond what we know.

Overly restrictive and slippery notices are just one small part of Copyfraud.  Start watching for this in your daily routines, if only to allow you to better answer questions for yourself and others.

the blog posting that pushed this entry to the front of my brain - read it! Open Access News

I have run into two essays by Eric Lease Morgan this week that paint an excellent picture of today’s challenges for library technology and possible future solutions within our reach:

Catalog Collectivism : XC and the Future of Library Search (Pdf from E-LIS) ["Collections without services are useless, and services without collections are empty."]

Today’s Digital Information Landscape from Infomotions, Inc. ["It is not so much about the what we are doing. It is more about the how."]

Watch for Eric’s name on library writings… he often offers well-phrased and insightful comments on whatever issue he addresses.

found via LISNews and ResourceShelf, respectively

I find myself thinking about copyright and fair use more often lately. As our use of technology to disseminate and retrieve information grows, the limits and freedoms of copyright and fair use, very intertwined, become less and less defined.

Georgia Harper’s guest blogger, Carlos Ovalle, writing for the Collecanea blog, has a post titled The Rhetoric of Fair Use. She discusses the lack of definite understanding, even in legal circles, of what fair use actually is. Is it an individual right when using copyrighted material? Is it a defense against charges of infringement? Is it both? What does it mean for it to be either, or both, of these?

She also links to a C|net column by Patrick Ross, Executive Director of Copyright Alliance, titled Fair Use is Not A Consumer Right. Much of his argument, to me at least, seems to be along the lines of “if major league baseball’s copyright statement were enforced, we wouldn’t be able to discuss Barry Bonds around the water cooler”, but since people aren’t charged with infringement for doing so, then things aren’t out of whack.

What do we do? We know that some claimed restrictions are overstated. We know that there is a great deal of copyright infringement, especially on the internet. We even suspect that, in today’s legal climate, that if public libraries didn’t currently exist that it would be a major copyright battle to create an institution dedicated to freely allowing people to borrow copyrighted materials.

We, and this includes me, need to learn more, to better understand what copyright is, and what fair use is. It is one of the best tools we have for learning and sharing what we learn.

We need to teach others how to properly respect copyright, including insisting on and taking advantage of fair use.

Think of it as free speech, but supported by someone else’s creation. This may sound like we are users, but ideas were meant to be shared. That is the only way they can grow into the world-changing paradigms they all have the potential to become.

Take a few minutes and re-watch (or watch for the first time, if you haven’t seen it yet) The Machine is Us/ing Us. Watch for the reference to copyright near the end. Understand that we do need to rethink what copyright means and how we will use it. And then we need to talk about it. Ask questions. Understand that even the really smart copyright lawyers don’t know where all of this will go, or where it should go. Understand that we need to work on this as a group, a very large group.

Deceptive Copyright Notices is a post by Karen Coyle post about those notices that restrict the reader’s/viewer’s rights beyond what is allowable under copyright, and an interesting complaint filed with the FTC.

Also included is a neat reversal of the FBI notice that we all see on videotapes and dvds:

WARNING. Federal law allows citizens to reproduce, distribute, or exhibit portions of copyright motion pictures, video tapes, or video discs under certain circumstances without authorization of the copyright holder. This infringement of copyright is called “Fair use” and is allowed for purposes of criticism, news reporting, teaching, and parody.

In a way, it makes more sense to emphasize what people can do, as opposed to what they shouldn’t, don’t you think? 

A blog post by Richard Charkin, Chairman of Macmillan UK, about he and a colleague “stealing” a couple of computers from the Google booth at BookExpo in order to make a point about Google’s placing snippets of books online makes me wonder how much he truly understands copyright.

Someone going into a bookstore and taking a book without paying for it is committing theft. Copyright infringement is not involved in the action of stealing the book. If a work is scanned and made available online without permission, it is copyright infringement, but not considered theft. The differences are significant, but seem to be confused by many. The chair of a major publisher should not confuse the two.

The copyright question surrounding Google Book Search involves whether Google has the right to scan and index entire books, and whether their providing snippets of the books via their search tool is considered Fair Use. These are questions that haven’t been settled yet, and very well may be decided in Google’s favor.

found via Open Access News

On Coyle’s InFormation, a blog written by the ever-interesting Karen Coyle, there is a discussion about the transcripts of a Section 108 Study Group meeting hosted by the Library of Congress on the topic of copyright, libraries and digitization.  These meetings are happening because Section 108 was written to create guidelines for photocopying, and digitization/internet issues aren’t covered in any clear way. 

Sounds a bit dry?  Actually, it isn’t.  Karen does an excellent job of selecting key passages that reflect the lines being drawn in the debate over what should, and should not, be allowed in the realm of library research and inter-library loan(ILL).  If you care about ILL services, database access, and access to information, you really should read her blog entry.

The Electronic Frontier Foundation (EFF) has information on their site about HR 1201, a.k.a. The Fair Use Act, currently working its way through the U.S. House of Representatives, that would strengthen the fair use concepts that have been in existence for decades for videocassette recordings, and apply them to other media.

The primary benefit would be that makers of electronic equipment able to store digital information (computers, flash drives, mp3 players, etc.) would enjoy the same understandings as vcr manufacturers when it comes to the use of their products: the user is responsible for making sure they respect copyright law.

When a device can be used in a legal manner, it is not fair to punish those who create it when others use it in an illegal manner.

from ©ollectanea