Archive for the 'libraries' Category
UCLA v. AIME – more good news

The court finally issued its order dismissing the case in the AIME v. UCLA case. (The second amended complaint, in case you’re counting.) In short, it was another big victory for libraries. The court affirmed all its earlier reasoning, and deepened its reasoning in a few key areas.

Here’s a quick summary — more discussion will be out on all the usual places in the near future, I’m sure.

Sovereign & Qualified Immunity Defenses
– All claims against Regents and claims seeking damages against individual defendants in their official capacity were dismissed because of sovereign immunity.
– The officials were also protected by sovereign immunity for their supervisory activities.
– The officials also had qualified immunity because the actions taken were not clearly copyright infringement; where there is at least some reasonable ambiguity around fair use, one could reasonably believe the action is fair use, and not copyright infringement. “The Court finds that a reasonable person would not have known that the alleged conduct violated any clearly established rights pursuant to copyright law because it is ambiguous whether the use was fair use under copyright law.” More on that below.

Associational Standing
– The earlier holding that AIME does not have associational standing still applies.

Interpreting the License
– The earlier holdings on interpreting the license language still apply — the court had said the activity looked like a “performance” not a “distribution”. However, the court also examined the “distribution” claim, and made a couple of key holdings: (1) The streamed copy on the end-user’s machine is not “fixed” and does not therefore constitute a “distribution”. (2) The licensing agreement language prohibiting broadcast or transmission over an “open or Internet system” did not clearly preclude the closed intranet system. Conflict between the marketing brochure and the licensing language created ambiguity which could be exploited by the library.

DMCA Anti-Circumvention
– Very nice interpretation of the DMCA anti-circumvention: Because UCLA had lawful access to the content of the DVD, their circumvention was okay. Oddly, the Court didn’t look to the DMCA anti-circumvention exemptions.

Fair Use
– Intermediate copying (to put the files on the streaming server) was “incidental fair use”.
– The streaming activities themselves were also analyzed for fair use, in the context of the officials’ qualified immunity. Thus, the Court did not fully assess whether the streaming itself were definitively fair use; only whether they were plausibly fair use. The Court found only that there was at least a strong argument about fair use, and so the officials were not liable for copyright infringement. It is clear, however, that this Court felt the activities were fair use.
The court found that the purpose and nature favored fair use — no discussion at all.

The second factor — the type of work — was neutral because, although these were creative works, they were used in an “informational and educational context”.

The third factor was “slightly” against a finding of fair use because the entire work was streamed: The “time shifting” argument was “compelling” and tipped this toward only weighing “slightly” against fair use.

The fourth factor weighed in FAVOR of fair use because someone watching the streaming DVD in a classroom has no effect on their likelihood of buying.

Overall, this is a very helpful analysis from the perspective of libraries.

Non-Copyright Claims
– The various state common law claims were preempted by federal copyright claims.

The full opinion can be read at scribd.

Judith Krug

So sorry to learn that Judith Krug has died. She was a lion among — well, among everyone.

NYT obit

Google Book Search panel at ALA Midwinter

The ALA’s Copyright Subcommittee (Committee on Legislation) is hosting a panel on the Google Book Settlement at ALA Midwinter this year — Saturday at 1:30 at the Grand Hyatt. (I’m on the committee and on the panel.) Should be interesting.

Come to the Google Book Settlement Session at ALA Midwinter Conference January 24th, 2009, 1:30-3:30, Grand Hyatt, Maroon Peak Room

If you’ll be at ALA’s Midwinter Conference in Denver at the end of January, please check out the session “Google Book Search: What’s In It for Libraries?” The open forum will be hosted by the ALA Committee on Legislation’s Copyright Subcommittee to discuss the proposed Google Book Search settlement. The discussion will take place on Saturday, January 24, from 1:30 to 3:30 p.m. at the Grand Hyatt, Maroon Peak (listed as the Washington Office Breakout Session IV – Google Book Search in the program).

Panelists will include Dan Clancy, Engineering Director for the Google Book Search Project, Karen Coyle, Digital Librarian and Consultant, Paul Courant, Dean of Libraries at the University of Michigan, and Laura Quilter, Librarian and Attorney at Law. The session will be moderated by Nancy Kranich, chair of the COL Copyright Subcommittee. Following brief opening remarks by each panelist, there be an opportunity for dialogue and questions from the audience.

Additional information about the proposed Google Book Search settlement is available at http://wo.ala.org/gbs/.

oclc will take member feedback on catalog records policy change

OCLC will take member feedback on its recent proposed change in licensing terms on cataloging records. See OCLC’s press release from yesterday, “OCLC Board of Trustees and Members Council to convene Review Board of Shared Data Creation and Stewardship.” link from librarythingtim

yaay.

update 2009/1/15: Salon on OCLC at Radical Reference, Friday, Jan. 23, 8 pm, at ABC No Rio, 156 Rivington St., Manhattan.

(more…)

unwillingly part of the rich people’s zeitgeist

Damn you, rich people who own really giant homes. I have been designing libraries for my dream home since I was, like, ten — and now I find out that the home library is now trendy among the wealthier folks. Who, natch, like them for décor.

call to libraries to boycott DRM

Following an action at my own BPL, the anti-DRM organization Defective by Design is calling for libraries to boycott products that use DRM.

The Open Letter to Libraries is posted @ DBD’s website, and they have also made a sample letter / template available for us to send our own letters.

Link via cory @ boingboing

elsevier is now part of elsevier

on LJ, which had this hilarious graphic about Elsevier. There’s an alternate text, too, so read the whole thing:
lollibrarian

OH NOES WE ACQUIRED RSELVES : LOLCAT caption for Elsevier library catalog automatically generated funny text

fair use (copyright) coming to an LCSH near you

Awesome librarian (and friend) Jenna Freedman has been on the LCSH (“Library of Congress Subject Headings”) for a while for its many failures to recognize current topics and language. She just posted about the new and revised headings, including a new heading for Fair use (copyright).

150 Fair use (Copyright) [May Subd Geog] [sp 85046891]
* 450 UF Fair use (Copyright)–Law and legislation
* 550 RT Library copyright policies

You can follow the ongoing saga of feminism, freeganism, and other opportunities for in-cluing the LC, at Jenna’s blog.

novel library architecture in Colombia

Although it feels weird to talk about Colombia without addressing the political issues, I nevertheless present this io9 link + pictures of a beautiful and strange library in Casanera.

Section 108 report released

The Section 108 study group has finally released their report. See:

For those who are not copyright or library geeks, Section 108 is one of the most important parts of the Copyright Act for libraries.

For those who are having trouble reading the medium-grey on light blue summaries of recommendations in the Executive Summary (what were they thinking?), here’s my summary of the summary:

  • Museums should be covered by Section 108
  • Recommending stricter criteria for eligibility for libraries, including “possessing a public service mission, employing a trained library or archives staff, providing professional services normally associated with libraries and archives, and possessing a collection comprising lawfully acquired and/or licensed materials.” Hmm.
  • Section 108 should be amended to permit some outsourcing of library & archive exceptions.
  • Ease up on the restrictions for replacement copies in 108(c), to include fragile copies, but also some strengthening of requirements — for instance, libraries are required to look for copies available at a fair price, and the Committee recommends that can include “licensed” copies. Hmm.
  • Recommendations about preservation of unpublished works, including limiting this to “unpublished works that have not been publicly disseminated.” They include a definition of “not publicly disseminated”, but I wonder how tenable these distinctions are going to remain. Also noting that borrowed copies may not be archived by the borrowing institution.
  • An exception should be added to permit preservation of “publicly disseminated works” whether published or otherwise publicly disseminated. These are dark archives, so access is specifically restricted: “The library or archives restricts access to the preservation copies to that which is necessary to effectively maintain and preserve the work”. A long list of requirements to qualify here; this is really quite bloated IMO.
  • An Internet Archive exception “to permit … capture and reproduce publicly available online content for preservation purposes and to make those copies accessible to users for purposes of private study, scholarship, or research.” There should be an opt out, libraries and archives should not interfere with material exploitation, and labeling is required.
  • The television news exception should be amended to permit streaming of archives, but not “downloadable copies.”
  • 108(f)(1) should be amended to clarify that libraries do not have liability for unsupervised use of reproduction equipment, e.g., library users’ personal cameras, scanners, etc. And reorganize the darn section logically.

Well, I could have hoped for a lot more, but there are some improvements here. Good luck getting them through Congress, though, especially in an election year. Maybe we’ll see some substantive reforms in 2009, but I’m not going to bet the farm on it.
(cross-posted @ sivacracy)
followup 4/28: Here’s a link to Mary Minow’s post of Peter Hirtle’s analysis: posted at Stanford Library fair use website.

Elsevier’s environmentally-unfriendly licenses

Why does Elsevier hate the environment and all the trees and all the little children who will be living in a world 50 years from now harmed by Elsevier’s really stupid insistence that its electronic documents be PRINTED and then SCANNED IN before being sent out for ILL ????

Seriously, faculty should really reconsider submitting to Elsevier journals. What a waste of human effort as well as trees.

Open Access News has the rest of the scoop. Although this isn’t new news, it seems like an opportune moment to bring it to people’s attention.

See also digital koans.

librarians on film

The Hollywood Librarian: coming to a theater (or netflix) near you. If I know librarians (and I do) this film will do really well on DVD — we’re a self-lovin’ bunch. The trailer’s pretty cool — check it out.

x-posted @ sivacracy … hat-tip to DTWOF by way of librarian vorse

florida protected from stoner librarians

Or at least those who stuck around for the drug tests. After Gainesville, Florida, implemented drug testing for its library volunteers, the number of volunteers, most of whom were senior citizens, dropped from 55 to 2.

Bill Maher gave this story the fisking it deserves, and radref at Radical Reference pointed me to it to begin with. Then I realized that, no, I had seen it before on sivacracy, but that portion of the tape got wiped.

I really had thought, somehow, that this country had turned the corner on ever-increasing numbers of ridiculous, pointless, and oppressive drug tests, but perhaps not.

New Orleans & ALA

I just got back from ALA for a panel on RFID (“Tiny Trackers”). As usual, ALA was chock-full of stimulating folks and ideas. A few notes follow, but first a report about New Orleans.

New Orleanians were grateful for ALA’s presence. ALA was the first large conference to keep its commitment to New Orleans since Katrina. The tourist and business sections of the city feel — well, a little empty, a little recessional. More closed & out of business signs than usual. In the French Quarter, the local businesses are mostly open — but nearby on the Riverwalk shopping mall, many of the corporate-owned businesses are still closed. Make what you will of that. But walk just a bit beyond the French Quarter into the 8th and 9th Wards, and things are quite different. I walked over that way on Sunday after my talk, although I didn’t make it much past the Vieux Carré. (It’s hot in New Orleans!) But even as far as I went, it’s clear that the recovery is only partial. And the reports from locals, and ALA folks who biked or bussed around in other districts, are depressing. The country has moved on and forgotten about New Orleans — a city that is one of this country’s greatest treasures. As my partner said, it’s like the media is Vamp Willow: “Bored now.”

….

The Lyman Ray Patterson Award went to Prue Adler, well-deserved. Chris Anderson’s “The Long Tail” was, while largely a regurgitation of his schtick, very good because his schtick is very good. (As long as he stuck to his schtick, that is. A number of folks quibbled with his naive market-centric and tech-utopian view of net neutrality.) The Free Speech Buffet was great, with an Emergency Zine Reading:

* Elaine Harger, in response to a censorship attempt, gave the would-be censor a button that said: “Use your brain: the filter you were born with.”

* Amusing reading of overblown prose from romance and other novels from Alycia Sellie. (I list this for its copyright relevance.)

* Ammi Emergency reading from a zine about post-Katrina looting of supermarket. “After the storm, New Orleans was even more New Orleans.” Community looters: One “incompetent neighbor” emerged with a broken bag of box wine and a rotten ham, and when it was pointed out, was upset & said “I’m no good at looting!” She was promptly consoled by another man who said, “You’re doing just fine honey.”

data mining & online information

Today is a beautifully misty day, perfect for leisurely procrastination from holiday tasks like installing back-up hard drives for the mom-in-law. (Well, “in-law” if we were in Mass.; everywhere else in the US, “mom-in-out-law”.) So naturally I found myself doing a little backlog reading of blogs that I don’t read every day, and was fortunate to see Lauren Weinstein’s post from early November, considering the privacy implications of online digital libraries.:

Our hero Aton (actually, “hero” isn’t really the right word) visits a planet that is basically the known galaxy’s central library. It has almost literally endless stacks of books collected over centuries, still kept (for now, but probably not much longer) for historical reasons, even though nearly all of their contents have long since been available via computers from anywhere in the galaxy.

When Aton shows up, one of the few librarians is very pleased to have a visitor — they’re few and far between — and offers to help Aton with some reference work in the stacks.

The librarian immediately and correctly deduces (in an offhand remark) that since Aton wants to use the stacks, he is probably looking for illicit information, given that all attempts to access “proscribed” data though the computers is automatically logged and reported, even though such information would not be accessible. But the stacks are far too vast to be selectively expunged.

[Discussing Piers Anthony's Chthon.] Watching all the news coming down the pike about Bush Admin. domestic surveillance, Lauren’s post seems particularly relevant.

Calling Doctor Google

As a former medical librarian I thought this editorial by a medical librarian in the BMJ was fascinating.

First this amazing information:

Within a year of its release Google Scholar has led more visitors to many biomedical journal websites than has PubMed (J Sack, personal communication, 2005).

… which certainly lends credence to the pro-tagging, anti- or indifferent-to-cataloging thinkers.

I was particularly interested to see the table from the BMJ’s web access stats, which lists Google as its number one referrer, by far, in November 2005 (345,756), and Google Scholar as its number two referrer (105,185). PubMed trailed significantly far behind — fourth place was PubMed Medline (14,522) and fifth place was PubMed Central (9,616). Of course, one shouldn’t read too much into this relatively raw access-data. A lot of factors must play into the numbers. Who are these searchers? Medical consumers typing in terms in google, hoping for consumer information? If they end up going to the BMJ, that’s probably more than most of them want to know, at least in an initial search. Or are they physicians realizing google is a shortcut to particular articles? Does this set of referrals include, for instance, academic-affiliated researchers? Many of them probably have access to their own institutional subscriptions to BMJ, and if requests are being routed through a local proxy then how is that reflected in these numbers? Still, anyway you slice it, it’s obvious that Google — or maybe it’s better to describe it as “general search” — is becoming significant for medical research. And Google Scholar is more successful than I’d realized.

And then this cropped up in the editorial, too:

In a recent letter in the New England Journal of Medicine, a New York rheumatologist describes a scene at rounds where a professor asked the presenting fellow to explain how he arrived at his diagnosis.[4] Matter of factly, the reply came: “I entered the salient features into Google, and [the diagnosis] popped right up.” The attending doctor was taken aback by the Google diagnosis. “Are we physicians no longer needed? Is an observer who can accurately select the findings to be entered in a Google search all we need for a diagnosis to appear—as if by magic?”

Ten years ago librarians were all a-twitter about the fear that search engines (Yahoo! and Altavista were the big contendahs then) would displace librarians. Most librarians blustered it out: “Nothing can replace a librarian!” but there was definitely some anxiety in the ranks. Now physicians. Relax, docs. Librarians, doctors, and search engines, all will find their place in the brave new world of infinite search. And it’s important that consumers have access to as much information as possible to critically evaluate and assess all the other info streamed at us daily. For example, since the FDA has deemed it acceptable for drug companies to “inform” us about their wares via millions of dollars of direct-to-consumer advertising, consumers get barraged with info about commercial drugs provided by commercial for-profit entities. In that information environment, it’s vital for consumers to have consumer-directed diagnostic information to assess Big Pharma’s claims. Ultimately it will improve healthcare. What did you think all those consumer health awareness services were about if not, ultimately, this?

radical militant librarians

One internal F.B.I. message, sent in October 2003, criticized the Office of Intelligence Policy and Review at the Justice Department, which reviews and approves terrorist warrants, as regularly blocking requests from the F.B.I. to use a section of the antiterrorism law that gave the bureau broader authority to demand records from institutions like banks, Internet providers and libraries.

“While radical militant librarians kick us around, true terrorists benefit from OIPR’s failure to let us use the tools given to us,” read the e-mail message, which was sent by an unidentified F.B.I. official. “This should be an OIPR priority!!!”

[seen on Riba Rambles]

fantastic library pork

Garrison Keilor imagines library pork like the Alaskan bridge-laden Republican Transportation bill. First, the model:

For Alaska, the Republicans earmarked $223 million for a bridge almost as long as the Golden Gate to link the town of Ketchikan (pop. 8,000) — which is a town that exists to sell T-shirts and postcards to cruise passengers for three months a year — to the local airport on Gravina Island, replacing a seven-minute ferry ride. Alaskans also will receive a billion-dollar two-mile-long bridge connecting Anchorage to hundreds of square miles of undeveloped wetlands, a great convenience for bird-watchers who now, instead of having to kayak across the water to observe the red-bellied grommet, can drive over in their Explorers and bring a mobile home with them.

Alas, I fear the undeveloped wetlands may not stay either un- or wet- very long. Next, the improved library library pork version:

I imagine that a super-library of that caliber might cost $223 million if you add in the books, the banks of computers with high-speed Internet connections, the movie theater, the Children’s Room, the Steam Room, the Nap Room, the Hobnob Room where English majors can gather for a libation, the underground parking garage, and the kindly reference librarian with the bun, the faint mustache on the upper lip, the navy-blue knit dress, the sensible shoes, and the glasses on a chain around her neck. Those ladies have become rare and do not come cheap.

Ahem. I’ll resist going on the usual anti-librarian-stereotype rant just because Mr. Keilor is so charming & hilarious. He offers us one final bit of lobbying strategy which I think is a sure winner:

And we need to promote public libraries as a tool in the war against terror. How many readers of Edith Wharton have engaged in terroristic acts? I challenge you to name one. Therefore, the reading of Edith Wharton is a proven deterrent to terror. Do we need to wait until our cities lie in smoking ruins before we wake up to the fact that a first-class public library is a vital link in national defense?

google & not-for-profit libraries

More on Google and Siva’s response (and my responses to Siva):

Recap: In response to publisher anxieties & thinly-veiled threats of litigation, Google is implementing an opt-out provision in its scan-copyrighted-library-books program, and delaying scans of copyrighted books until November. [google blog] This has been widely reported as Google backing down. See, e.g., “Chilled by Publishers” (BoingBoing), “Google Sells Out Users” (Copyfight).

Siva Vaidhyanathan had a different take, predicated largely (it seems to me) on the fact that Google is a for-profit corporation. For once, I disagree with Siva, and on two grounds: both with library exceptionalism in this instance and the take on American Geophysical Union. Siva:

Google did not have the right to make wholesale copies of millions of copyrighted books without permission from the copyright holders. Google’s original plan fails every possible fair use test ever tried. See, for example, American Geophysical Union v. Texaco.

If copyright is to mean anything at all, then corporations may not copy entire works that they have never purchased without permission for commercial gain.

Usually I agree (not slavishly. who said slavishly?) with everything Siva (and his minions on Sivacracy) has to say, but I have to disagree with him here on a couple of points.

First, the for-profit corporation issue. Yes, Google is a for-profit corporation, and while they try not to be evil, one could argue that they won’t be able to help it. Siva wishes that libraries would take greater advantage of fair use, and so do I — libraries are wonderful and should be able to do anything they want including lots of things they don’t do now (like, yeah, scan in everything they own). But I take issue with this form of library exceptionalism. Libraries should push fair use in the service and interests of their users, history, and humanity. But libraries are not the sole beneficiaries of fair use, nor should they be. For-profit corporations, not-for-profit corporations, heck, even tax-exempt religions — all should be able to exercise fair use broadly.

Well, Siva says Google is not a library. It’s true that Google is not the mom-and-apple-pie ALA version of a downtown library, complete with modern atrium and skylights for Mayoral gatherings. But I think we have to push on “library” for a bit. The Internet Archive is certainly a library. My home collection is certainly a library. (It even circulates, and I have remote storage, and I recently began a belated investment in DVDs.) Libraries may be private, semi-private, public; for- or not-for-profit; paper or digital. Why is Google not a library?

And tactically speaking, it just doesn’t make sense for information activists / copyfighters to start downwardly limiting various users’ sets of rights. Ultimately, this will come back to bite us: what if libraries start to look more like corporations? In fact, library exceptionalism has not served the library community well: Despite numerous statutory exemptions for libraries, librarians have still retreated into deep conservatism and fear of copyright liability. Librarians realize that the laws governing information transmission are porous, and the laws that apply to for-profit corporations will also affect not-for-profit libraries.

Second, Siva cites American Geophysical Union, 60 F.3d 913 (2d Cir. 1994), very quickly in support of his point that “Google’s original plan fails every possible fair use test ever tried. See, for example, American Geophysical Union v. Texaco.”

AGU is not the law of the land, much less every possible fair use test ever tried. While influential, AGU is the law of the 2nd Circuit. (Not the Fifth, although my brain always short-circuits me there, linking “Texaco” to “Texas/5th Circuit”.) I like to remember that fair use is a fact-based, multi-factor analysis. Paraphrasing one of my copyright professors, multi-factor tests = completely unpredictable results. Each and every case looks quite different and yes, different caselaw applies. There’s a limit to how far you can draw even an influential appellate precedent, as the p2p cases show.

Unfortunately, Siva and everyone else likes to just drop-cite AGU: It was a broad decision that, famously, stands for the idea that potential licensing revenue counts as an (apparently significant) effect on the market. That’s scary, and big, and consequently the decision weighs heavily in the set of bad anti-fair-use opinions. But over-reading it has led to significant nail-biting in the library community. I do agree with Siva that it’s important to remember that AGU took place in a for-profit environment; in fact, I’ve argued that not-for-profit libraries & archives have a lot less to worry about than they think they do from AGU. But the for-profit/not-for-profit status is not the be-all and end-all of the story. AGU demonstrates a sophisticated relationship between the various fair use factors. The potential licensing revenue was significant in large part because of the for-profit status. That means that it’s not the horror story that librarians sometimes fear, but it also means that you can’t take the fair use factors as a simplistic checklist: for-profit or non-profit? market effect (including lost licensing) or no market effect? It doesn’t work that way. The market that is considered is necessarily shaped by the environment in which the alleged infringement took place. Texaco was a for-profit corporation with the resources to do licensing. Librarians have been scared because the lost-licensing-revenue aspect looks even more insane in a public or academic library context than it did in Texaco’s internal special library, routing & private desk copy context. But that particular horror has never fully paraded itself, probably because the outcome is so insane outside of the particular circumstances of Texaco. Context is everything.

And, again thinking tactically, I would argue we ought to work to limit the reactionary conservatism this case fosters, rather than trying to puff it up even more. By drop-citing AGU in the service of anti-corporate use of information, Siva made the copyright maximalists’ case. And that’s not good for libraries or Google.


A little aside: Derek Slater disagrees with Siva on AGU, too, from a different angle. Derek points out that the Appellate Court found “undue emphasis” on commerciality in the District Court’s opinion. Derek’s point is well-taken, but I still read the commercial context as significant. Between the District Court & the Appellate Court opinions, the Supreme Court issued Campbell, which expressly reversed any presumption that for-profit uses were not fair. The Appellate Court wanted to uphold the lower court’s ruling, but had to deal with Campbell; hence the nod to Campbell. But the Appellate Court was really pointing out that Texaco’s use was still a traditional library use, even if in a for-profit environment.

We do not mean to suggest that the District Court overlooked these principles; in fact, the Court discussed them insightfully, see 802 F. Supp. at 12-13. Rather, our concern here is that the Court let the for-profit nature of Texaco’s activity weigh against Texaco without differentiating between a direct commercial use and the more indirect relation to commercial activity that occurred here. Texaco was not gaining direct or immediate commercial advantage from the photocopying at issue in this case – i.e., Texaco’s profits, revenues, and overall commercial performance were not tied to its making copies of eight Catalysis articles for Chickering. Cf. Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991) (revenues of reprographic business stemmed directly from selling unauthorized photocopies of copyrighted books). Rather, Texaco’s photocopying served, at most, to facilitate Chickering’s research, which in turn might have led to the development of new products and technology that could have improved Texaco’s commercial performance. Texaco’s photocopying is more appropriately labeled an “intermediate use.” See Sega Enterprises, 977 F.2d at 1522-23 (labeling secondary use “intermediate” and finding first factor in favor of for-profit company, even though ultimate purpose of copying was to develop competing commercial product, because immediate purpose of copying computer code was to study idea contained within computer program).

[38] We do not consider Texaco’s status as a for-profit company irrelevant to the fair use analysis.

The Appellate Court then goes on to talk about the value to the user of the allegedly infringing activity. This discussion is critical, because it sets up the fourth factor discussion about the lost revenues.

As a pragmatic reading, I see this tweaking of analysis as a way for the Appellate Court to deal with Campbell. In its effect, the case has been bad; it has, as I’ve stated, been an oft-cited case when librarians are playing conservative. In its reasoning, the case is also bad: the potential-lost-revenue argument is virtually boundless. But my sense is that the potential-lost-revenue argument, although terrible, has not yet fulfilled its potential — maybe because it is so boundless.

In short, I think American Geophysical Union is over-rated, and the commercial context is critical.

… a bit more coming later hopefully

update 8/14: The massive amounts of media coverage given to the Google withdrawal confirm my opinion that tactically this sucks, for libraries, authors, readers and anybody else who actually uses copyrights. So much of this coverage is described as a copyright flap, Google’s copyright misstep, etc. The bounds of fair use have just shrunk in the court of public opinion, and that’s a much longer-lasting loss than American Geophysical Union, Napster or any other case.

update 8/15: See, this is why I like Siva so well: I wish I had time today to respond to all of the good comments zooming around the blogosphere and e-mail. …. They are all helping me formulate my arguments better. I can’t help but compare favorably this response to certain other thread-baiting that’s happening on a nearby (non-IP-related) blog. And I know Siva will eventually come up with some very cogent ideas on this issue that will make me go hmm.

Related posts: interesting reading early saturday morning 8/13essence of library, 8/17

old works, new copyrights
  • Sony is claiming copyright over “Zorro” and has sent a C&D to Sobini Films, which is wanting to produce a movie set in the future (well, 2010 – barely the future any more!) about Zorro. Johnston McCulley first introduced Zorro in 1919 in The Curse of Capistrano. The BBC article states it thusly: “Sobini contends it acquired the rights to Johnston McCulley’s book The Curse of Capistrano…” “Acquired the rights”? It’s a public domain work! BBC
  • OK, this news is from May, but for some reason I just saw it now. A copyright is being claimed on a formerly unknown work by Vivaldi that recently turned up in an archive. Let us remember that Vivaldi died in the 1700s. The opera (“Motezuma”) was found in a German library collection. I can only assume the library is claiming that it was never published and copyright didn’t attach to it?

    Imagine if libraries get to own copyrights on things out of their special collections. The resulting treasure hunt will certainly encourage library administrators to put more money into cataloging the special collections departments. On the other hand, what heirs of famous artists and authors will want to donate works that might yet turn out to be profitable for their great-great-great-great-great-several-times-over-grandchildren?

    I’m inspired to look into the question of copyright of archived unpublished materials. But off the top of my head, I would suggest that a work being made publicly available in a library collection ought to constitute publication. So, whenever the Vivaldi collection was initially made public, copyright on otherwise-unpublished works begins tolling. The libraries that hold works in their collections will profit as museums do now, from controlling access to the original and licensing reproductions.

    Granted, that surely won’t be as satisfying for the holder of the original copy of a composition or literary work, compared with, say, a painting or sketch. In compositions and literary works, the copyrightable expression is all carried by symbolic languages, which are easily replicable. Collectors will still attach value to the original, but the value of the work will flow with the symbolic languages.

    With a painting or sketch, on the other hand, more of the value flows with the original work. The work is not reducable into an easily transcribed symbolic language — it can only be distributed by photographic reproductions of the exact work. And even then, the artist’s expression can only be partially captured by two-dimensional photographic reproductions: The original ink and paper were artistic choices, and brush strokes include three-dimensional information that is not easily captured by photographs.

    So the papers of famous scholars and artists are not going to be quite the boon for libraries that holdings of museums are. That’s the trade-off of being an archive rather than a museum, IMO. An archive gets a lot of stuff that you haven’t yet had time to classify (less often the case than in a museum), but it’s not as often the kind of stuff that might make your institution a fortune.