Copyfraud : Poisoning the Public Domain is an introduction to some of the ways that content providers (websites, publishers, etc.) abuse copyright protections when they use public domain materials.  A couple of minor points, however:

• The act of assigning a copyright to something already in the public domain is the issue; taking a Project Gutenberg text, formatting it, and publishing it is of great benefit to people, as long as one doesn’t claim protection that doesn’t actually exist for the material.
• The Creative Commons Public Domain Tools is not a license, nor is it  an attempt “to become the arbiter of  public domain licensing”, but a way to allow people to have an easy and effective way to display that a work belongs to the Public Domain.

found via LISNews

Cory Doctorow has an interesting take on the differing attitude of copyright between those who wish to wish to honor a creative work and those who wish to diminish it.  An excerpt:

“The upshot of this is that you’re on much more solid ground if you want to quote or otherwise reference a work for the purposes of rubbishing it than if you are doing so to celebrate it. This is one of the most perverse elements of copyright law: the reality that loving something doesn’t confer any right to make it a part of your creative life.”

An added bonus is a reference to a Firefly-based fan fiction that I hadn’t encountered before, titled My Own Kind of Freedom.

found via Library Link of the Day (16 May 2009)

Amazon.com has given in to the Publisher’s Guild on the issue of text-to-speech capabilities in the Kindle 2.

In their press release, Amazon states up front that “Kindle 2’s experimental text-to-speech feature is legal: no copy is made, no derivative work is created, and no performance is being given.“  In this statement, they are correct.  If I read a book to someone who is visually or otherwise impaired, it takes a stretch of the imagination to suggest that I am actually staging a performance.

In addition, as I stated when the issue was first raised:

“How would someone with a visual impairment be able to order the audio book version of a title without using a screen reader?  In addition, how would they know whether a website allows for the use, under copyright law, of their own website by someone with a screen reader?”

To state that a feature of your product is legal, and to understand the benefit that the feature would bring to users of the product, but to then allow it to be disabled arbitrarily by third parties strikes me as a company that is attempting to placate the “squeaky wheels” simply because they threaten legal action.

BookFinder.com Journal makes a comparison to the relationship between large-print books and magnifiers.  Should the ability of consumers to use magnifiers while reading be controlled by the publisher (after all, it might be costing them large-print sales).

If you still feel that publishers should have the final say, then consider whether they should have this ability to control works that are in the public domain.  It doesn’t matter whether it is the consumer’s right to use text-to-speech, according to this decision; it only matters that individual consumers cannot respond with the apparent impact that the Writer’s guild can muster.

There has been a similar theme in the bibliographical world lately – rules being put in place that attempt to ignore or even circumvent that which already exists, whether it is Public Domain, Fair Use, or the First Sale doctrine.  OCLC, Google, and now Amazon have all implemented restrictions to their various offerings.  OCLC, to their credit, has stepped back and is in the process of re-evaluating its approach towards licensing records.  Google hasn’t even blinked about restricting access to Google Book items waaay beyond even the tightest of copyright interpretations.  Amazon asserts the rights of users to use text-to-speech, but then allows those with a vested interest against it to control its use.

Yes, there is a pattern to all of this, and we need to figure out how to prevent it from continuing.

The impending release of the Kindle 2 wireless reading device has been all over the news this week, accompanied by many reviews and commentaries.  One response to a new feature strikes me as extreme, however:

“Some publishers and agents expressed concern over a new, experimental feature that reads text aloud with a computer-generated voice.

“They don’t have the right to read a book out loud,” said Paul Aiken, executive director of the Authors Guild. “That’s an audio right, which is derivative under copyright law.”

An Amazon spokesman noted the text-reading feature depends on text-to-speech technology, and that listeners won’t confuse it with the audiobook experience. Amazon owns Audible, a leading audiobook provider.

Source:  Wall Street Journal

On one level he is correct:  the audio rights, like movies and other adaptations, are derivative and subject to negotiation.  However, text reading features are considered an assistive technology, and to attempt to make the output a derivative under copyright law opens a nasty can of worms.

Imagine if reading Goodnight Moon to your two-year-old was considered a “performance” and required permission… that’s how nasty and worm-ridden this can is.

One example of a negative effect of this viewpoint basically involves any website that would sell audio books, including Amazon.  How would someone with a visual impairment be able to order the audio book version of a title without using a screen reader?  In addition, how would they know whether a website allows for the use, under copyright law, of their own website by someone with a screen reader?

Note that we aren’t discussing audio books, which are derivative works, and are mostly very professionally produced and are meant to enhance the experience of the book, not simply to allow the person to experience it at all.

The argument by the Author’s Guild representative is a nasty legal mess that we should not consider reasonable under copyright law.

found at Open Access News

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

I missed this last month, but a post on the LibraryLaw Blog suggests that book jackets may be protected under a clause in the copyright law aimed for advertisements and commentaries.

found via LISNews

Disclaimer: I have been an avid user of Scrabulous for several month (Stats:  70 wins and 3 losses, best bingo at 158 points), and am sad to see it go.  I am not posting because of this, however, but because of how the the article illustrates the problems with current copyright law.

Scrabulous Highlights the Failure of American Copyright Law is an excellent article in the Inquisitr.  They examine the copyright history of a game that started off with the name Lexiko, and compare it to the current patent laws as they apply to prescription drugs.

The intent of copyright is to encourage creativity by granting a period of exclusivity, but not at the exclusion of others with time. Copyright law as it stands today limits the creation of new works by denying the rights of others to create derivative works after a reasonable time. Copyright law today works against the greater good.

from LISnews

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.

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

Lawrence Lessig has an Op-Ed in today’s New York Times called “Make Way for Copyright Chaos“, which discusses a shift towards the courts when interpreting copyright law.

from ©ollectanea

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

I read The Ecstasy of Influence:  A Plagiarism, posted on Harpers.org a couple of days ago, and am still thinking about it a great deal.  It is hard to describe the essay without spoiling the impact for the reader, but it is definitely several things:

• It very well might change the way you view copyright law, especially if you think you know something about copyright.

• It is an examination of the art of creation, as well as the creation of art, and how each one of these exists because of the incredible commons of knowledge, art and creation that exists within our society.

• It is also, once you finish the essay and begin reading the “KEY” section, revealed to be an interestingly different sort of essay that is suddenly morphed into something very different, and in such a way as to challenge how you address the concepts within it.

Definitely, definitely, definitely read this, and recognize that the spirit, as well as the law, of copyright exists throughout our culture, shaping our thoughts and ideas in ways both subtle and direct.

I think we are now in a position where a re-examination of copyright law needs to take place. If the current law cannot allow for orphan works to be used through some process (what we have now is a Catch-22), then these works aren’t benefiting anyone.

Here is a news article on the topic; here is the court opinion (pdf).

side note: I would worry about congress revisiting copyright law, too. I suspect that the major media corporations would make it their top priority to shift the law in their favor, which might do much more harm than good. (My own opinion…).

from ResourceShelf

I find it interesting when organizations forget about fair use when they establish copyright policies. It is especially interesting when the organization is educational in nature, like the University of Southern California.

I think it is necessary to counter blanket statements about copyright with information about the nuances contained within the laws. One place to start is the Copyright and Fair Use page on the ALA site.

But more important is our being observant when our rights are being ignored. Pointing out the exceptions in policies, signs and statements is necessary. If people don’t understand what they are allowed under copyright law, can they truly understand what they are not allowed?

initial link from Open Access News