Wednesday, January 31, 2007
Tuesday, January 30, 2007
Digitization class has a project orientation, but we spend the first part of the semester getting the theory down. Megan Winget is tossing out very interesting contemplative assignments and study questions. She seems to be extremely open to thoughtful analysis. No pat answers. At this point I'm finding that things I did last semester are directly relevant to what we're doing now. There's very little if any barrier between classes, not just this semester but between semesters. It all starts to merge. So, the paper I did for Don last semester, on the serial futures of libraries, is directly relevant to our discussion tomorrow. I talked about the implications of innovator's dilemma, the long tail, small pieces loosely joined, etc. It all comes up again and again.
In the few months since I wrote that paper, I've read so many pieces by others who have said not only what I said, but a whole lot more. I thought I was being provocative, but I was barely scratching the surface. I found a blog entry today referring to a recent grad's thesis on implementing Library 2.0 in an academic library setting (Michael Habib). I need to read it, obviously. It sounds like it's focused on the short term future, whereas I am more interested in long-term future, but it's interesting to contemplate this idea that we are either kicking or screaming, or willingly, happily, going to our demise. Shall we have fun along the way or not? Let's do Web 2.0 stuff and have some fun. I am all over that.
The other class I have is organizing and providing access to information (Miles Efron) where I'm going to get into xml, oai, and a hundred other acronyms for technologies that I am clueless about. Well, I shouldn't be so harsh. I was posting web pages back when there was no such thing as a wysiwyg editor. So I am not clueless. It's just that I haven't focused on technical stuff for a long time. Anyway what's really interesting about this class is that it will help me finally to get a handle on what the deal is with catalogs and indexes and metadata. I'm a hopeless Google addict and frankly can't imagine limiting myself to searching someone else's ideas (vocabulary) about the resources I want to find. But I'm going to find out about it and figure out what you do with it.
So, then there's french. I am learning to pronounce whatever it is I already know (grammar and vocabulary are not an emphasis of this class). First test is on Friday. Test. That's going to be a trip. Well, I need to learn this stuff. I'll be in France in just about 4 months.
Most exciting thing to happen so far this semester has to do with work, not school. I got to participate in the Library summit at Google last week, UT having joined the book search project the week before. Nothing has blown me away like that did in a long, long time. Google is doing or plans to do everything libraries should be doing but are not and never will. They have the agility, creativity, and resources to make magic happen. Geez I wish I could work there for like 1 month. Just to be in that environment where making things happen is the norm, not the exception. So I'm going to do a paper on our part of the project as it unfolds, sort of a documentary of the process and the interaction with Google (being ever mindful of the things that are confidential). My intent is to, without being too defensive, try to understand and explain how a Google project fits into the larger picture of this library's future. It's not like other digitization projects. Its goals and objectives are totally different. People don't seem to see that. These two classes I'm taking and the roll-out of the Google project at UT are all one to me. They are all about the same thing, the future of the book, the future of the library, the future of publishing. It's like triangulating your location -- in the future.
Wednesday, January 24, 2007
Back to Basics: The Underlying Assumptions Redux
It must be apparent from the range of approaches available to the courts, the range of fair use outcomes in the strictly iterative (non-transformational) cases, the closely divided nature of the decisions, the frequent and lengthy dissents, and the way courts tend to be reversed at successive stages of litigation, that fair use functions as a sort of Rorschach test, its outcome reflecting neatly the court’s underlying beliefs about how copyright law should be. Any given use can be characterized by a set of facts, and the court can emphasize among the many facts those that best support its underlying beliefs about whether a particular use should be fair.
This means, for example, that it is of little utility to argue among ourselves whether electronic reserve use of an article is a “transformative” use. It can be, if the court wants the use to be fair. It won’t be, if he court does not want the use to be fair. The task is not to convince the court that a use is transformative, it is to convince the court that it wants the use to be fair.
More generally, it is simply not enough to advocate a specific approach to the four factor analysis – one must first convince the court that a use should be fair, that the public needs to be able to freely make the particular use, or more broadly, freely benefit from the use, and that the social benefit of the use should prevail over the copyright owner’s need to control the use and derive revenue from it. In short, the court must affirmatively believe that enhancing public benefit and use is better than preserving actual or potential copyright owner revenues and control. If a court is so persuaded, the four factors will be made to follow. So persuading the court of the fundamental need for fair use in this context is the task for anyone among us who champions a blanket educational use exemption (the strict logic approach) or a finely nuanced financial hardship educational use exemption (the market dysfunction approach).
Thus, we can urge the use of a different framework from the one used by courts today to evaluate these types of uses, in order to expand fair use in educational contexts. We can explicitly ask courts to emphasize the public interest in our uses and to weigh that benefit against the harm to established markets. But unless we first convince the courts to turn the assumption that underlies the property theory of copyright generally, and market failure theory in particular, on its head -- that is, instead of assuming the owner is entitled to everything he can get, assume students and educators are entitled to freely use others’ works and that owners’ rights do not need any more protection than necessary to fund creation -- we would seem unlikely to prevail.
Is this an argument we are prepared to make? We might consider the consequences if we won: Asserting that all educators and students, or even a financially strapped subset of them, should be able freely to copy and distribute others’ works electronically could seriously undermine the financial support our own scholarly presses derive from permission fees, to say nothing of the financial support the broader community of publishers receives from educators who are in many cases their primary market.
One might also ask as a practical matter, should we defend as fair use by enacting as policy that which we are unlikely to be able to defend in the courtroom? The Sony precedent and the good-faith fair use defense may give universities enough comfort to take the risk, but will the evolution of publishing business models soon obviate the need for reliance on fair use in the Electronic Distribution context anyway? More and more, licensing allows us to comprehensively acquire the rights to use others’ works that we know our faculty and students need. To the extent that licensing fails to meet educators’ needs as it clearly fails for books (few if any are available as aggregated licensed works), should universities instead insist that those who publish books, especially those intended for academic use, make them available in the form of licensed databases of aggregated content, as journal articles are made available today?
Several scholars note that iterative fair uses are important for other reasons besides merely multiplying and distributing copies. Where access to works is impaired by high prices (market dysfunction), many core fair uses (criticism, commentary, and other transformative uses) that might have been made will not be made. Thus, the argument has been made that First Amendment concerns permeate even iterative copying, and that fair use should take account of that fact in the iterative context. But to the extent that this argument can be characterized as a specific example of a dysfunctional market, that is, the price for access is too high, therefore financially strapped users will not gain access, the argument will be vigorously challenged in any court adhering to market failure principles. Ultimately then, although iterative copying may indirectly support First Amendment values, arguments in favor of characterizing it as a fair use on First Amendment grounds will still have to succeed before a court likely to focus only on the iterative event, not the speculative later end result of a possible second transformative, perhaps critical, use.
Distinguishing Core Fair Uses from Iterative Uses
We are now back to where we started: will reduction in the scope of iterative fair use affect the case for core, creative, transformative fair use -- fair use for commentary, criticism, news reporting, parody, artistic expression, scholarship and research? Can core fair uses survive the property premise, that copyright owners are entitled to every cent they can get, with fair use an onerous tax on their revenues? Can they survive if courts forget that a monopoly is not a good thing and that the monopoly, rather than fair use, should be limited to the extent it is needed to achieve a socially beneficial goal that can not be achieved through less drastic means?
Of course, the ultimate fear is that fair uses of every type can be eliminated once it is clearly established that copyright owners are entitled to control any use they are able to charge for. By the mere expedient of raising a price above what a user is willing or able to pay, a copyright owner can discourage or prevent uses he does not like for whatever reason. Who will be able to effectively question whether his reason is that he needs the money to further his creative efforts or that he dislikes the expression contained in a derivative work? Even if unintentional, the result will be the same: fewer, not more, works will be created. Wendy Gordon suggests that even under market failure analysis, uses refused for non-economic reasons should be permitted as fair, although she looks to tort law principles to narrowly draw the limits of the exception. Perhaps it is necessary to look to bodies of law outside copyright to justify fair uses that fully comply with the fair use statute and clearly promote the progress of knowledge where courts have been persuaded to abandon those copyright principles in the first place, in favor of microeconomic analysis with its premise that copyright owners’ rights should be interpreted expansively. If those rights were interpreted as the monopoly they are, fair users might not be disproportionately burdened with the obligation to “justify and excuse” themselves.
Nevertheless, courts have shown more support for core fair uses and conversely, more resistance to the claims of copyright owners in this area. For example, in Bill Graham Archives, the court found that including seven small images of concert posters in a book detailing the phenomenon of the Grateful Dead was a transformative fair use even though the plaintiff copyright owner was willing to license the use and the alleged infringer had paid many other copyright owners for the use of other images included in the Grateful Dead book. The court distinguishes clearly between iterative and transformative uses in its fourth factor analysis. It flatly rejects the idea that one can control transformative uses by offering to charge for them. This holding is very encouraging, especially coming as it does from the Second Circuit, home to the publishing industry. Also encouraging, the Kelly and Field cases discussed supra at footnote xx found that even iterative copying was fair use where it was also transformative in nature and no harm to markets for the originals could be shown. On the other hand, we have precedent in the Sixth Circuit in a case analyzing transformative uses of music (a three-second sample) that is directly at odds with the Second Circuit’s approach.
Additionally, on some occasions when courts have acquiesced to copyright owners’ demands in the creative use context, Congress has stepped in to defend core fair uses such as historical commentary and criticism. Recall also the considerable number of scholars cited at the outset of this article who vigorously defend the fundamental need to protect core fair uses. Unless scholars like Julie Cohen and Rebecca Tushnet are able to change the general perception that iterative copying does not need the protection of the law, the mere possibility of collateral damage to transformative uses is not likely to dissuade courts from concluding that iterative uses are not fair.
The Task for the Educational Community
That copyright owners can defeat particular iterative fair use claims by licensing the use appears to firmly hold sway over courts today. Thus, where markets are reasonably able, even if imperfectly able, to meet educators’ needs for authorized copies of articles and book chapters for their students’ use, courts are unlikely to step in, interfere in the functioning of those markets, and declare unauthorized uses to be fair. I conclude in the face of this trend that universities will find it difficult to prevail on a claim that Electronic Distribution of easily licensable materials is fair use in all cases. Perhaps one may still effectively argue that some such iterative uses are fair, such as those involving occasional use, actual spontaneous use, or more broadly, a first time use, but near-instant permission processes and the real possibility of blanket licenses covering such uses available through the CCC would seem to undermine that argument as well.
On the other hand, it appears that clearly transformative uses cross a dividing line between unfair and fair. With respect to some media at least, there continues to be good precedent indicating that copyright owners cannot control creative uses of modest scope by refusing to permit them, or even by offering to charge for them. Certainly where it is not practically feasible to charge for them, where the market for such uses simply does not and probably cannot exist, fair use prevails even for iterative uses.
If this assessment is accurate, fair use still may safeguard core uses, but if the evolution of copyright law through the twentieth century has taught us anything, it is that fair use in any form will survive only if it has very strong, informed and active advocates. The publishing and entertainment industries can certainly be characterized as having on more than one occasion evidenced a myopic view of their own best interests. But their view will prevail, whether ultimately good for them or not, unless it is countered forcefully and effectively.
 Textbooks obviously come to mind, but even major journal publishers may count educational markets among their most important.
 17 U.S.C. 504(c)(2)(i). This defense requires the court to remit damages in any case in which the nonprofit educational or library defendant or its employee proves that it reasonably believed that its actions constituted fair use.
 Further, publishers’ employment of digital rights management may further moot this whole discussion insofar as it enables unilateral determination of the rights that users enjoy. Fair use is not likely to be among those rights, or if it is, it may only be a rough, algorithmic, no doubt conservative approximation.
 For example, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, Rebecca Tushnet 114 Yale L. J. 535; The Place of the User in Copyright Law, Julie E. Cohen 74 Fordham L. Rev. 347 (2005).
 The recent declaratory judgment action involving the treatment by James Joyce’s estate of scholars’ requests to use materials in research on the author is illustrative. [cite.]
 Wendy J. Gordon, Excuse and Justification in the Law of Fair Use: Commodification and Market Perspectives, The Commodification of Information: Social, Political, and Cultural Ramifications, Klewer International 2002; criticized in Lunney’s Fair Use and Market Failure.
 Campbell v. Acuff-Rose Music, Inc.; Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006); Sun Trust Bank v. Houghton Mifflin Co.; New Era Publications Int’l v. Carol Publishing Group, 904 F.2d 152 (2d Cir. 1990); Nuñez v. Caribbean International News Corp. (El Vocero de Puerto Rico), 235 F.3d 18 (1st Cir. 2000); cf. Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539 (1985).
 Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).
 Kelly v. Arriba Soft; Field v. Google. These were also, however, cases where requiring the defendants to take a license, that is, ruling that their uses were not fair, would have been impractical as there is no way such a license could be implemented in the framework of Internet search engine functioning. There was, in other words, a massive market failure *and* a transformative use. Digital Distribution can not easily claim either. Both of these cases appear to confirm the hypothesis that if a court wants to find a use fair, it will, and the four factors can be made to follow.
 New Era Publications Int’l ApS v. Henry Holt & Co., 873 F.2d 576 (2d. Cir. 1989), cert denied, 493
 This “stepping in and interfering” in the market is precisely what we must urge that courts do if we are to argue that all or some part of Electronic Distribution is fair use.
 Suntrust; Bill Graham Archive.
 Kelly v. Arriba Soft; Field v. Google; Perfect 10 v. Google (RAM copy).
 L. Ray Patterson, What’s Wrong with Eldred? An Essay on Copyright Jurisprudence, 10 J. Intell. Prop. L. 345.
Sunday, January 21, 2007
Patrick McGrath? Not that I can find, though he's well known and established. He's described in the Bloomsbury site as a guest lecturer here at UT, but he's not talking with his audience on the Web apparently.
Antony Hopkins? Department of History, UT, actually has his own website, but does not appear to be talking on the Web with his audience.
Also mentioned in the story are two assistant professors in the English department, James Cox and Neville Hoad. Neither of them appears to have an interactive presence on the Web.
I certainly understand the University's wanting to promote the writings of its authors, but I think it could do more by encouraging them to look to the future of the book as much as to its present. Unless they are planning to retire from writing in the next couple of years, they should do themselves a favor and look around, smell the java ...
Friday, January 19, 2007
I also added a feature that shows the posts from the blogs I've read recently that I think might be of interest. My rss reader is Google Reader. This is a feature Google Reader provides.
There are lots of other features that can be added as the NYT article shows. But school has started, and my blog enhancing days are numbered for awhile. Posting every couple of days will be attention enough. There has to be some plain ol' fun in all of this, right?
Wednesday, January 17, 2007
Monday, January 15, 2007
Another semester starts tomorrow. I'm ready for the whirlwind this time, at least I know what to expect. I've got both my ischool schedules scoped out. One of the classes is about organizing and providing access to information (what used to be cataloging, but isn't anymore); the other is about digitization. Both fairly technical, but both squarely touching on the themes I am getting more into: what changes does the fully networked environment presage for the book, the publishing industry, the library. And, of course, how is the way we are handling this different from the way it's being handled in other parts of the world.
I spend a lot of time over the last couple of weeks reading blogs, news reports, conference papers, books, and really, anything that touched on these themes. There is so much out there once you get started looking. Thank God it's so incredibly interesting, downright fascinating, or I would be overwhelmed. The only thing that's overwhelming right now is the thought that I have to narrow down my interest at some point. I can't imagine how on earth I could do that, but I know I will.
As for french, I've been listening to the audio that accompanies my book, am listening to rfi and tele 5, reading the text of the book and an occasional news feed (I get my Google news in french), so I'm prepared for that too. Hopefully I'll be able to attend le cercle francais this semester to add an additional hour each week to my practice schedule.
So, if it weren't freezing right now and raining, thus making it iffy whether classes will actually go forward tomorrow (UT will call the shots on this early in the a.m. they say), I would be more excited about it, but as it is, it's really Wednesday that I'll have my first class, the digitization class. So, 1 down, 6 or 7 to go...
Thursday, January 11, 2007
So, this is the last week of this part of the trip. I did actually make a list of the things that were most important for me to accomplish before the semester begins, since I know how little other than school I'll be able to focus on once the semester gets underway. So I kept to a schedule of sorts this week and will continue to do so through Monday of next week. I'm making steady progress on these things -- reading and creating a bibliography for the research I want to do on French libraries (contrasting their views of the future with those of US libraries), a paper I was invited to co-author on fair use in digital image libraries for architecture schools, a talk I'm scheduled to give on digital distribution in February, stuff like that, a short talk I'm giving to faculty at UT on library services (scholarly communication & copyright). All very interesting, but I'm also still working on Benkler's book. Really need to finish it before Tuesday or I won't finish it for 3 more months...
I also will be starting on a new blog in about 3 weeks. The University of Maryland, University College Center for Intellectual Property & Copyright is launching a blog for its visiting scholar (moi) and I'll get to play around there for a bit each week, invite others to play too (visiting bloggers) , and in general, try to keep on top of things slightly outside my academic interests. Don't want to get too narrowly focused, at least not yet.
So, I'm off to take a video break, episodes 9, 10 and 11 of the first season of The Wire. I don't watch much tv (actually no tv, except when Dennis is around), so I didn't learn about the wire for several years. I am so out of it when it comes to tv. I just hate commercials and they drive me away from the medium. I know, not all stations have commercials, but sitting in front of a little box with flashing lights and sounds is not my idea of a good time. There are exceptions, of course. And I love wandering around on the Internet... Enough of this rambling.
Monday, January 08, 2007
Of the case for fair use: digital distribution of course materials: summary of approaches to fair use
Summary of Approaches to Fair Use Analysis
We have discussed five approaches to fair use analysis. It is my conclusion that even the most lenient approach will offer little support for fair use Electronic Distribution in today's courtrooms.
1. Strict logical construction: in this case the court would accept as fair use those uses where the first three factors favored fair use in the nonprofit educational context, ignoring all evidence of harm to markets as logically irrelevant insofar as it represents payments that are not due if a use is fair, and so cannot be presumed “lost” because of the use unless it is otherwise determined to be unfair. Williams & Wilkins illustrates this approach.
2. Creative destruction: in this case the court would accept as fair use those uses where the consumers of copyrighted works are funding the making and distribution of the copies in question, and creation of the works in question does not depend on sales of copies.
3. Sony traditional revenues only: in this case, the court would accept as fair use only those uses that provide a clear social benefit, and when weighing the social benefit against the harms to the copyright owner, the court would limit the relevant market to current revenue streams.
4. Market dysfunction (broad interpretation of market failure): in this case the court would accept as fair use those uses that demonstrate market failure due to high transaction costs or market dysfunction due to inability to pay – inability to internalize social benefits or monetize a party’s interests; the relevant market would be both current and future revenue streams that might exist if the court finds for the copyright owners. No court has taken this approach.
5. Strict interpretation market failure: in this case, the court would accept as fair use only those uses that demonstrate near total and likely continuing failure of the market due to high transaction costs; the relevant market would be both current and future revenues that might exist if the court finds for the copyright owners. Texaco illustrates this approach where the use was not found to be fair; more recent cases involving Internet search engines (Kelly v. Arriba Soft & Google v. Field) illustrate this approach where the use was found to be fair.
Sony and creative destruction both offer fairly aggressive arguments for fair use. Creative destruction would even legitimize unauthorized peer-to-peer (p2p) music file sharing. In fact, that is exactly what Ku argues: that p2p file sharing has creatively destroyed the market for CD distribution because individuals make their own copies and pay for the distribution network themselves (computers, peripherals, ISP service). Further, sales of copies are in fact notoriously not a source of income for most musicians. One can also identify this phenomenon at work much earlier with respect to sheet music and the advent of photocopying. So, for example, a court using this analysis could find under the fourth factor that p2p file sharing of music does not harm the market for or value of copyrighted recordings.
Ku assumed that courts were more likely to implement creative destruction than the legislature would be to reform copyright law by placing a limit embodying this theory on copyright owners’ exclusive rights. Recent cases involving p2p issues would cast considerable doubt on this likelihood, however, because all have assumed that direct copying by p2p software users is infringing, including the Supreme Court in the recent case of MGM Studios, Inc. v. Grokster, Ltd.
Moreover, it seems unlikely that Electronic Distribution would qualify broadly as fair under creative destruction analysis. Creative destruction characterizes as fair those uses 1) where the user makes his own copies and pays for the distribution system, and 2) where revenues from the sale of copies is not required to fund the creation of the works the user copies. That description does not currently characterize all of the materials that educators must use in teaching. Scholarly articles arguably fit the description, though there would no doubt be argument to the contrary. Textbook and trade book publishers would vigorously refute the characterization.
Perhaps the market dysfunction argument, creatively and thoughtfully applied, is at least a possibility, but as indicated earlier, its advocates would have to define the subtle contours of a very challenging argument.
Finally, the circularity argument will likely fail, as indicated above, because it can so easily be gotten around by manipulating the first three factors to favor getting permission, thus eliminating the appearance of “… converting an otherwise fair use into an infringing one.”
If posting articles or book chapters for students to read over successive semesters would likely fail to qualify as fair use under every theory of fair use including the “strict logic” circularity approach to the fourth factor, how do we reasonably defend it? And what are the implications of such a likely failure for fair use policy? In general, how do we defend policies that describe a scope for fair use significantly beyond its likely interpretation in courts today?
Monday, January 01, 2007
I started Benkler's Wealth of Networks a couple of days ago as part of the exploration I'm doing for the course I want to create on the future of the book. It's a bit far afield, especially given how long it is (couldn't likely assign it, but might certainly make it optional or recommended reading). It's online as well as in analog, so I can cut and paste the passages that are particularly resonant into EverNote for later use. I'm also getting started on a bibliography in Noodlebib for the course. I can annotate each entry as well as make notes to myself about each book and include quotes. The tools I've learned about in the Knowledge Management Course are really phenomenally useful. It's just such a shame that most working folk don't have the time to figure out how to make more of their time...
The one place I'm not making progress is on lining up the people I want to interview next summer in France. I keep feeling that I need to know more before I select the people, and I need to know more before I can come up with the right questions to ask them. All of this is true, but I don't have forever to figure it out. Reservations have to be made, appointments have to be arranged. I really have to just take a leap in some ways. I need to go by gut instinct here, sort of a Blink kind of thing maybe. Since I have to accomplish this outside the structure of a course, I don't have the advantage that course requirements would impose on my efforts. I have to be my own taskmaster on this. That would normally not be a problem, but the course requirements will squeeze out just about everything that isn't absolutely necessary once the semester gets going, so I will really have to make the most of the next couple of weeks before the crush is on.
It's been so nice though, to have the rhythm of the day be my own. Ah, life.