Hey you! Organization-oriented problem solver! We need you over here!

Another of Peter Brantley's posts has intersected with a post from Peter Suber's Open Access News Free online topic pages coming from Elsevier to set my head spinning again. Brantley's post, shimenawa - A Glimpse of Neon is oddly pessimistic and optimistic at the same time. He says, if I understand him correctly, that library cooperation to achieve goals that are beyond individual libraries (like Digital Libraries and a host of other initiatives underway right now) is a dead letter. In the resource discovery context (our supposed forte in the ancient past), the nimble commercial entities are blowing us away. He mentions Google of course, but that's where the Open Access post comes in. Elsevier will launch later this summer a free resource that seems essentially a virtual meeting place built around a subject of mutual interest with links running all over the virtual world, interactive capabilities out the kazoo... We in the research library world are *talking* about how this kind of thing might be a neat idea, how we might work with other libraries in Texas (our Texas Digital Library) and in particular cases, with our Presses, to create inviting environments around which scholars (our scholars we suppose) would gather. Of course we'll do this, on a shoe-string budget, over a long period of development time, slowly, cautiously, testing the water. Wouldn't want to fail would we? How else can we do it at all?

Elsevier, the giant publisher. Google the giant [insert most currently appropriate descriptor here]. Amazon the giant book/everthing distributor. Giant. Can anyone really see our library, any library, ever competing effectively? Not on product; not on service. So collaboration with each other (with other libraries) might be an option, but Brantley has concluded, and I can't say I disagree, that adding together several slow, institutional, conservative, nonprofit entities doesn't make them all of a sudden fast, sleek, nimble, innovative, risk-takers. You can't make a silk purse out of a sow's ear, nor out of two sow's ears.

But as I mentioned, Brantley's post is optimistic too, because he has glimpsed something else libraries could do with their treasure trove in the future. But this treasure trove is not our collections, and the future he glimpses is not about resource discovery -- it's about putting to new tasks our way of looking at the world, our way of organizing things, our institutional skill, our professional forte -- about applying our way of relating to problems to solving bigger of the world's problems than finding resources. Stunned silence, at first, then the wheels start spinning. He's talking about our collaborating with the giants, our supplying a piece of the puzzle that they don't have. But wait, isn't that what Google Book Search Library Partnerships are all about, and haven't we been run over by the Mack truck of collective library opinion on that one for giving away the physical treasure trove? JHC. It's not about the books, real *or* virtual, he's saying. That is just beyond us I think. But it has me going.

Oh, yes, copyright. It all relates back to copyright in some strange way. It's still a problem and worth attention, but I become more convinced each day that the successful arguments for change in the current dynamic will be more favorably advanced by demonstrations of what can and must be done to deal with more pressing problems and how copyright, as currently wielded by its owners, unambiguously impedes progress in those spheres. These same commercial interests that have stood fast on their copyrights, barring the door to innovation in the name of protecting current profits (what else were they supposed to do?), are beginning, one by one, to see opportunity where they only saw threat before. And these opportunities come not from standing on their copyrights, but by standing down, even if only a little.

Four weeks to go

I still feel like I'm living in a dream. I keep thinking about "Waking Life." It just keeps getting better and better. Four weeks from today the whole semester is over for me. I have turned in everything deliverable I owe except for two term papers. One is about 95% finished. The other is a group project that is perking along at a good pace. The efficiency and organizational challenge did indeed turn out to be all that I needed to get the whole effort down to manageable proportions. I've had free weekend time, relaxed evenings, though I still tend to work until late on Mondays through Thursdays, and even on Fridays on the weeks that Dennis is in Houston. But I still absolutely love everything I am doing. I just don't have to do it 80 hours a week to get it all done. So I have had plenty of time to reflect, to chat with people, to blog, to write my papers. And the connections are now so numerous that I don't actually see any separation between my classes. Notes for one class are written all over the readings for another, and for my papers I'm working on for the independent study with Phil. It's all one big happy exploration of ideas.

It occurred to me today that I could modify my copyright class (assuming I'll teach it again after I graduate) to include a future of the libraries component, a policy component, not just copyright. I should talk to Phil about this because our Copyright Law and Policy class might be better suited to this adaptation. I will certainly have enough material to maybe teach a whole class on it at some point, but it might be hard to get it approved (for me to teach it) since it would be outside my established credentials (copyright lawyer). Well, it's something to think about.

I placed out of 16 hours of french and am registered for a 3rd year class in the spring. I'm not so worried about french now. I feel a little more playful about it, not so serious. I'll do fine. I do need to get started making my arrangements though. May will be here before I know it...

Of the case for fair use: digital distribution of course materials -- Introduction

I've been working on, struggling with, a paper on the fair use argument for electronic reserves and digital distribution of reading materials (and other materials) in course management systems like Blackboard. I want to experiment with collaborative authoring in a scholarly context, so I'm going to work with the text here, inviting comments and suggestions. I've already solicited comments privately, as is the norm in academe, but I'm still concerned about the argument, the reasoning, the factual predicates, and most of all, the conclusion I reach. So if it's not working, what better opportunity to try a new approach. Further, like other authors today, I am excited about the possibilities in collaborative authoring, and networked texts. I want to see how it works. What better way?

Here's the opening from the paper. I'll add other segments over the next couple of weeks as I see how this goes.

Many perceive fair use as less “useful” today than it was in the past. Publishers deem reliance on it as too risky. All it stands for is a right to litigate the question of whether the use is fair. To be safe, one must ask for permission even if the use might well be fair. Ultimately, the “permission culture” actually diminishes the value of fair use, though no change has taken place in the wording of the statute.

Some creators are resisting this trend, urging within their industries a return to reasonable reliance on fair use.[1] And educators and librarians who encourage access to and creative use of the works of others in general understand the importance of fair use and want to maintain its scope. Of course they can and do defend fair use in many fora, but in the courts, fair use seems to be losing ground in certain contexts. What’s happening to fair use, and what can be done to turn things around?

First, it is necessary to distinguish different functions for fair use, because all fair uses are not uniformly in trouble. Creative fair uses, those that use another author’s expression in a critique, a parody, artistic expression or news reporting and similar uses that build upon existing works in new ways, can be threatened by the general trend towards expanded owners’ rights,[2] but these types of uses still receive solid support from the courts today.[3] As the references cited in footnote two indicate, many scholars vigorously defend this transformational aspect of fair use. And as cited in footnote one, at least one entire industry is advancing the notion that permission for every creative use actually works against the creation of new works. Fair use for creative, transformational uses is not faring so badly then.

On the other hand, uses that reproduce an author’s work in order to make an exact copy, perhaps to conveniently use that copy at a later time or in another format or to give the copy to others (I will refer to these copies as “iterative uses”) are under relentless attack. Few seem eager to defend these uses in court anymore after a series of high-profile courtroom defeats.[4] This article focuses on these iterative uses, not on creative, transformational uses. In particular, it focuses on the digital distribution of educational materials to students through course management systems and library electronic reserves (“Electronic Distribution”). Only at its end does the article consider whether threats to iterative fair uses may affect creative expression that relies on core fair use. The reader is urged to keep the distinction between iterative uses and core creative, transformational uses in mind throughout the article.

---

[1] Cite to Fair Use Principles for Documentary Filmmaking and Duke University’s Bound by Law.

[2] See Illegal Art, www.illegal-art.org; Siva Vaidhyanathan, Copyrights and Copywrongs, The Rise of Intellectual Property and How It Threatens Creativity, New York University Press 2001; Lawrence Lessig, Free Culture, How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, The Penguin Press 2004; Jessica Litman, Digital Copyright, Prometheus Books 2001; James Boyle, Software, Shamans and Spleens, Law and the Construction of the Information Society, Harvard University Press 1996; Eldred v. Ashcroft, 537 U.S. 186 (2003) affirming Congress’s power to lengthen copyright terms by 20 years retrospectively.

[3] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994); Sun Trust Bank v. Houghton Mifflin Co., 252 F. 3d 1165 (11^th Cir. 2001); Lee v. Art Co., 125 F. 3d 580 CA 7 (Ill.) (1997); Kelly v. Arriba Soft; Field v. Google; Bill Graham Archives. These cases show that parody, derivative works, copying to create a searchable image index on the Web, caching copies to aid Web search, and using small versions of larger poster images to illustrate a timeline can be fair use.

[4] Basic Books, Inc. v. Kinko's Graphics Corporation, 758 F. Supp. 1522 (S.D. N.Y. 1991) (commercial coursepacks); American Geophysical Union v. Texaco, Inc., 60 F.3d (2d Cir. 1995) (Texaco’s research copies); Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6^th Cir. 1996) (en banc) (commercial coursepacks).

Institute for the Future of the Book

I got to thinking about the Institute for the Future of the Book last nite. It came up (again) in an editorial I read in the Library Journal, an interview with Ben Vershbow in which he talked about the Social Life of Books. (I wanted to explore further was the idea that ebooks today tend to be solitary, confined, separated entities that don't allow even your own thoughts to penetrate their boundaries, let alone the thoughts of others, ie, hyperlinks, for example. Copyright. It is another example of how the state-granted monopoly supposed to increase creativity and knowledge is being used aggressively to suppress it. Most, maybe just about all publishers are not inclined to exploit innovative technologies like open books, networked books. They like things like they are. Christensen would say that they have their values, their business models, their processes, and their corporate structure and finances can't work with a silly little down-scale publication that maybe appeals to a dozen people (exagerating, as usual) (short review of Innovator's Dilemma). But their copyrights allow them to prevent anyone else from experimenting with the disruptive technologies that the Internet affords. Ironically, they've been handed the power to stop creative destruction, or at least slow it down, but only with respect to their own works! Anyone, anyone who writes, who photographs, who films, who paints, who sculpts, who crafts something has it within her power to innovate, to take advantage of the incredible capabilities that the Internet makes possible. And millions of people are doing just that. Making a living from the sale of copies of something is not just an old business model; it's a broken business model that incapacitates those who rely on it. So let those who can't imagine a different future have their way with their own things. But the rest of the creative world is having fun and showing the way towards a new economy of ideas, one where the value of the idea is in sharing it much more broadly than its possible to share in the world of sales of copies. Time will tell what holds more promise for the future.
So, to join this trend, one need only participate. Lessig published Free Culture both in hardback and on the Web for free with edit enabled (derivative works license through Creative Commons); I just read in a CS Monitor article that McKinsie Wark plans to allow the same kind of remixing of his next book, and invites commentary all along the way as he is writing it. I have read that other authors are doing the same thing, even "scholars." I am doing this too. Right here, though I suffer from the "what if I wrote a book and nobody came" problem mentioned in the article referred to above. Still, you have to start somewhere.
The paper I'm working on for KMS is a good start. It's far enough along to go up for comment. I need to break it into parts, however. A typical blog post can't be too long, I've noticed. Brave new world...

Blog this! doesn't work in Beta and I just switched to beta...

so as best I can tell, blog this! is the tool to use to create a blog here including a post from another blog or website, but unfortunately, it does not work in beta blogger, and I just today switched to beta. just my luck. well, at least I figured it out. it took forever, it seemed. i was doing this instead of reading for Don's class. actually, i was doing both, but not getting as much reading done as i would have preferred. but this is exactly the kind of thing i need to do, so it's just as well.

the article on mylifebits was amazing. written in 2002, so i wonder whether there's anything like this actually on the market today. let's see...

Yes, there's an update on it, 2006. It's even more impressive today, but I wonder if it suffers from objective creep. It's objective will get more lofty as its researchers discover more and more that can be done, so the goal will always be "just a few years away." I also note that the research on MyLifeBits is sponsored by Microsoft, so I wonder if that means that it won't be open source, will be proprietary, and like other MS products such as Outlook, if one uses it, one can never get one's data out of it to switch to another application. I just hate that.

I have to start bloggin in french, as soon as I get home

I realized yesterday that I had to start blogging in french. I plan to go to france next summer to do some research, and I'm practicing speaking, listening and reading, but not writing. Writing provides another opportunity to learn. It's very different from speaking. In speaking, when you don't know how to say something, you create a "work-around." You find another way to say it, maybe not precisely what you wanted to say, but you get the idea across. In writing, however, you have a dictionary by your side and you look up the word or way of saying something that you prefer to use. They involve different and complementary skills and I need to do both. I'm in DC right now and I don't have my dictionary, so I won't start today, but tomorrow I will. Maybe I'll blog at least one or two paragraphs in french, as a start. Eventually, I should do it all in french. It's a way to preserve my thoughts about this experience *and* practice french at the same time.

And that, indeed, is the essential problem I need to solve right now. How to get more efficient about what I need to do because I don't really have time to do it all however I feel like. It's got to get efficient.

So, for today, a summary of my trip to DC. I came to talk with other copyright attorneys in higher ed about an education initiative of the ARL, but we also talked about digital delivery of educational materials, Google Book Search, and many other things. I visited with UMUC about being their Visiting Scholar and they worked very diligently with me to come up with a plan that benefits us both. I was very happy to find that they were flexible enough to accomodate my current state of panic about being unable to do everything I already have commited to do, let alone new commitments. The Kims were superbly calming. I so appreciate that. I really need that right now.

Anyway, the connections are just amazing. Everything is connected (duh). I am not worrying so much anymore about projects and specific readings. I just do the readings and then liberate the connection-detector and go from there. I seem to go from the specific, the detail, to the general very quickly, sometimes too quickly I'm afraid. I seem to be much more comfortable with the big picture firmly in mind. Context.

So, specifics. Norman's Design of Everyday Things had basically one thing to say and he said it over and over and over and took 200 pages to do it and it's not really a total waste of time, but it could be said so so so much more succinctly and without all the stupid examples. Let's move on. Preece, which everyone seemed to hate at first (and I wasn't that enamored of it either) now seems to me like a much better resource, more practical for the project-oriented approach of Luis' class.

For KMS, our readings are more like good background reading so far, but I can see that we are getting deeper and deeper into the specifics of different kinds of KMS and it's going to become maybe way too dense to be able to stay on top of it all. I need to know this and want to learn it, but it is too much too fast and that usually ends up meaing that nothing really gets into long term memory. Ultimately, I feel that's wasteful. I need more time to think about things and work with them and get them into meaningful contexts or else it's just an exercise with no real long-term utility. I wonder whether it's just me? I wonder whether professors care? I know when I was a professor that I felt students needed at least some exposure to a wide range of subjects or topics within the course framework, but now I wonder if the overload defeats the very purpose of that exposure. Does exposure count if there's no film in the camera? If the end result of exposure is forgetting everything, it's just like exposure without film in the camera. But what to do about it?

Well, this is *my* graduate school experience. There's no reason that I should accept someone else's definition of what success is. There is some level of accomplishment implied in attaining the degree, I accept that, but I am not at all convinced that the level or type of accomplishment defined by the professor is or should be the *only* accomplishment that is adequate to earn the degree. Maybe I'll talk to Mary Lynn about this. I know I'm not going to change anyone's idea about what graduate school should be like. And there's probably no small amount of "if it was good enough for me, it's good enough for you" going on. I don't want to do less, I just want to do more of one thing than of another. I want to do more thinking and reflecting, and less reading for exposure and moving on to more reading. Too much reading leaves no time for reflecting. Is that not true? If the standard full time course load leaves no time for thinking, then something is wrong with this picture. The reflecting is what I came her for.

Well, I have to get the efficiency thing fully implemented before I make the judgment that there's no time for thinking. So, I'll give it another couple of weeks. Then I'll reassess.