Archive for the 'licensing' 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.

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


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


Expelled without a license

Word on the street is starting to trickle in that the popular music was not licensed:

* John Lennon’s “Imagine” was definitely used without permission. The Lennon estate + EMI are suing. (See Reuters, 4/23 (link from pharyngula); the NYT, 4/24; and Paste Magazine. (I can just picture the graphic on The Daily Show: “Ono you di’n’t!”)

* I’m also hearing that The Killers (“Personal Jesus”) didn’t authorize. (See comments on earlier posts.) … And now I’m hearing that they did authorize, but were duped into doing so. See the playlist.

Updates as available.

4/28 update: It looks to me as if copyright infringement was at least anticipated and planned for, and the case that the copyright infringement was an intentional gambit by Premise Media to inspire litigation is considerably stronger: Check out this press release by Premise. They’re trumpeting the litigation, and note that they reference it as litigation by the “beloved Yoko Ono.” Tapping into popular dislike of Yoko Ono — which had significant racist and sexist over-, under-, and in-the-middle-tones — Premise Media continues to demonstrate that they are a class act. Their behavior reflects on the religion they profess and promote, of course.

Other discussions on the issue:
* metamagician
* Lippard Blog

another way that EULAs/TOS/etc can suck

2:45 to 4:55 a.m.

So I was up too late at night (or too early in the morning) writing out my thoughts and ideas and plans and investigating various and sundry burning questions, as one does at 3 in the morning, and I found myself signing up to Zune. Really, I found myself doing it, because I had just randomly clicked through someone’s profile to their zune account, and without fully registering zune = microsoft, I thought oh yes, another media sharing site, zune — so familiar, I must have heard of it before. (I was a tiny bit sleep-addled, and yes, my family owns mp3 players of at least two non-Microsoft varieties. Zune, like Kindle, is one of those interesting devices that arouse my professional curiosity but not enough to spend money on them, and so over time the details, and apparently even the name, get filed to some lower-level-of-detail storage in my brain.)

And, because I have been spending a little time logging onto various media sharing / social networks and examining their properties and features (all without much if any media to share, I might add, so don’t bother checking out my stuff on these various accounts), I started the account creation process at zune. I had a moment of suspicion as I realized they used Microsoft’s Live ID (Who uses that?), and then was like, Oh, Zune, and I cancelled out but then thought, well, what the hell, and started the account creation process again.

Which was at, by the way, so it’s not just zune, you’re signing your whole life over to Microsoft. But it’s okay, because in addition to the “service agreement” Microsoft makes you sign, privacy is very important to Microsoft so you have to agree to a privacy agreement, too. As is my wont, I decided to save copies of the things they made me agree to. In this case, it was “Microsoft Service Agreement Last Updated: October 2007″ (this was the document’s actual title, with no linebreaks where you might think they would be) and Privacy Statement (whose actual title I don’t quite recall for reasons to be described later). So I opened up both those documents to separate tabs, rather than just clicking “I agree”. Firefox helpfully informed me that both documents wanted to save cookies on my hard drive, because I have Firefox set to that high privacy notification standard although it gets pretty annoying sometimes. Why do these documents need to set cookies, I wondered, annoyed. For example.

Rather than actually reading the whole Service Agreement right then, I decided to save a copy of it. It was in one of those inset frames — a scrolling window — which I hate, but Microsoft conveniently had a “print” icon for the document. Huh, I thought, clicking the print icon and saving a PDF (because I save PDFs instead of printing, to save trees and to permit better searching and personal mark-up and so on), maybe Microsoft has learned something about privacy, and EULA usability. Maybe the constant scrutiny by their critics makes them improve and be responsive. Maybe I’m wrong about giant corporations. Maybe Microsoft will become the new App— and then I opened up the PDF of the license, just to see what it looked like.

And realized that it only had one page, page one, through point six of the agreement (“6. If You Are an Associated Account User. If you are the user of an associated account, then the holder of the service account has full control over your associated account. …”). Dawning suspicion. But, still, maybe I, without realizing it, clicked to just print one page. So I went back, hit the print icon again, up popped the print window, I did not do any page selection, I saved the PDF, opened the PDF, and voilá — still just one page, the first page.

Well, now I’m really irritated, because it’s hard as hell to save the contents of those little scrolling windows, especially if you want formatting. You either have to get the browser to open up the frame in a separate window of its own, which they don’t always want to do (there’s probably some proprietary anti-open-up-separate-window code or script that can be applied), or you have to do multiple screenshots which of course doesn’t preserve the editable text, or you have to try to save the HTML separately which requires a browser to render it, or you can try to select-copy just the text out of the iframe but then you don’t get any of the italics or bolds — etc.

I decide to blog about this, because I think it’s really deceptive. Screw my personal annoyance; this is a vital political issue and it must be blogged! People save a copy of the agreement and then only have one page! So, these license agreements which are basically impossible to read onscreen because of the fine print, boring legaleze, long paragraphs, and difficult-to-read formatting, can’t be easily printed or saved for later reading or even to have one’s own copy of putatively legally-binding agreements. This particular document took fourteen screenshots to save it, I kid you not. And when I wanted to save the text for searching purposes I had to deal with the inset frame again, because if you select-all it selects ALL, as in all the contents on the master page, so one has to go through that process and then remember, oh yeah I have to click in the goddamned inset frame.

So I pop open wordpress, start this post and describe the events up until that moment. Then I command-tab back from Preview to the Firefox window to do whatever it takes to save a copy of the Microsoft document so that I can actually read it. (I really hate those inset frames.)

And Firefox crashes.Yes, once again Microsoft has managed to crash something on my computer. Usually it’s just MS Word or Excel or PowerPoint but since I compulsively command-S my work like, literally, after every sentence or two or at most after a paragraph if I’m really on a roll, I rarely lose much work. Except in Excel or PowerPoint, if I’m mucking about with graphs or graphics or whatever. But it’s wordpress, through a browser, so cmd-S doesn’t work. So I had probably several paragraphs of brilliant prose written without being saved.

So, I began the tedious process of recreating everything, and finishing my Zune application. This was helped because Firefox stores your sessions when your browser crashes, although it doesn’t save one’s precious prose or anything else temporarily stored in HTML form elements. It also can’t or won’t permit you to go back in form submissions from a resurrected session after a browser crash, so I could never get back to the Zune/Live/Microsoft sign-on page two from whence I clicked the “Privacy Agreement/Statement” link, and so I could never verify the actual text of that original link.

The story continues for a while with various misadventures of WordPress formatting (WordPress! Why does your code view always lose my paragraphing, in firefox and safari, at least? SO annoying.), browser crashing, session timeouts, pondering the mysterious user interface design issues of Microsoft’s website (why does the service agreement include, outside of the frame inset on the left side of the page, a “FAQ” that links to the same service agreement? Why is there a “Table of Contents” link at the bottom, which, when clicked, switches the word “FAQ” to the bottom and the phrase “Table of Contents” to the top, but leaves the exact same link to the exact same service agreement in place?), laughing sardonically at the other tab, the privacy statement/agreement which you may have forgotten about and which, it turns out, actually just drops you on “Microsoft’s Online Privacy Notice Highlights”, also “last updated October 2007″, which then further links to “fullnotice.aspx”, aka “Microsoft Online Privacy Statement”. And more user agreements, like the Zune terms of service, which actually is in its own, user-friendly browser window, without inset frames.

But the rest of it was pretty boring, and it’s almost 5 am, and I think my demons are laid to rest and I might be able to get back to sleep. So, the take-home: Don’t just save copies of agreements; open them up to make sure they are the full monty. Because otherwise you’re still at the mercy of the company not just for what you agreed to, but for what they said you agreed to when you clicked “I agree” without reading it.

royalties & licensing, mapped

A friend just pointed me to two global maps of exports of royalties & licensing fees and imports of same.

lost licensing revenue & Google Print

I just got around to reading the weekend’s Washington Post Google Print editorials, pro (Mary Sue Coleman, UMich Pres) & con (Nick Taylor, Authors’ Guild). Short editorials, and I suppose the format limits their ability to go beyond rhetoric (“access to vast libraries of content” … “this is a socialist plot!”) into any actual legal or policy nuances. But I was particularly disappointed with Nick Taylor’s editorial, in a few ways. Taylor wisely doesn’t actually make any legal arguments. Instead, his editorial boils down to the complaint that Google Print is lost licensing revenue for publishers. It’s okay, that he makes that point, because that’s actually the publishers and Authors’ Guild’s real (and only) point. I just resent the rhetorical slurs that are used to pad the actual argument.

  1. Red-baiting? “It’s been tradition in this country to believe in property rights. When did we decide that socialism was the way to run the Internet?” Man. Best response: Peter Suber, at Open Access News, who said:

    Nick Taylor’s piece shows that he’s as clueless as I feared. First, he doesn’t understand what socialism is. Second and more important, he complains that the Google project will deprive him of revenue but doesn’t offer a single reason to think so.

  2. Taylor uses socialism as a slur in one breath, and in the next apparently would like to see — what? a government panel passing over each and every use of a copyrighted work?

    Google contends that the portions of books it will make available to searchers amount to “fair use,” the provision under copyright that allows limited use of protected works without seeking permission. That makes a private company, which is profiting from the access it provides, the arbiter of a legal concept it has no right to interpret.

    <shaking my head in disbelief> What? A user has no “right to interpret” fair use? Okay, but I think that government bureaucracy’s gonna be pretty large when every teacher, every forwarded email, every reviewer, every parodist, every sampler, every quoter, and so on, and so on, has to file permission slips with the “arbiters” of “fair use”.

    Once again, if Google Print goes forward, that doesn’t mean that Google Print will be the only big database, and it doesn’t mean that Google is now the arbiter of, well, anything other than its own sweat-of-the-brow compilation of data (the words used in books and the order in which they are used).1

As for the actual argument, yeah, there’s lost licensing revenue. Every use of a work, including every fair use, involves potential licensing revenue.2 That, alone, won’t win their case. But I suppose they think red-baiting and appeals to public sympathy for starving artists (not exactly a coherent set of positions) can only help.

Footnote Meanderings

1. The total number of words, the presence of particular words, and the arrangement of those words in a work are, among other things, facts about the work. So are the author, the title, chapter titles, publication date, etc. Creation of an index to a work or multiple works includes gathering facts about the works. Conceptually, it’s quite distinct from the activities the Copyright Act is aimed at: copying and distributing works are clearly aimed at competitive copying, what used to be termed “piracy”. The copy(ies) that Google makes in the course of its scanning and indexing are technical copies, like RAM copies, and that would be an unpleasant route for courts to try to follow. (Although they have in the past; see, e.g.,, 92 F.Supp.2d 349 (SDNY 2000).)

The Google Print distributions are small pieces of the text, not easily framed with all the other pieces of that text, but instead contextualized with small pieces of other texts that match the search terms. Again, this isn’t the sort of competitive distribution which leaps easily to mind when one thinks of the exclusive right to distribute a work. [Note: this is true for Google Google Print Library program for copyrighted books, not the Google Print Publishers program, or Google Print for public domain works. I've seen several articles, like this one, that conflate or obfuscate the different programs.]

The derivative works right is aimed at translations, movie scripts, and the like. Again, not quite the right fit. I know some people will argue that an index is a derivative work, but treating derivative works in this way skirts too close to any and all fair uses. The caselaw shows this kind of interpretation, which is why the derivative works right is the most troubling of the exclusive rights, but I’m going to steer clear of that morass of a discussion for purposes of this footnote.

Performance and display are also aimed, obviously, at specific actions. Oddly, I think performance might be the best fit for Google’s use, in some kind of wierd philosophical way. A performance enacts a work, simultaneously interpreting it and creating the possibility of interaction with the audience. Interpretative performance necessarily demands recourse to information about the work, as well as the work itself. An index is also centrally about user interactivity, in a way that mere consumption of the text work is not. An index, then, performs the work, interpreting it by recourse to information beyond the text itself (for instance, bibliographic data; retail or location data; or the meta-structures of the work’s organization, in paragraphs, sections, chapters, parts, pages) and opening it to dialog with the audience.

Ahem. Or not. I confess to some recent exposure to critical continental literary queer performative prepoststructuralist theory stuff.

2. Hell, you could sell a copy of a book with a separate shrinkwrapped license that charges a new fee for each and every individual use. (I think Adobe may already have a patent for that method of doing business, though.)

covers & licenses to cover

Slate just ran an article on cover albums (“Copycats – The cover album makes a comeback” by Franklin Bruno, 2005/6/23), which is interesting timing considering that the Register of Copyrights has proposed to eliminate the compulsory cover license. [Lessig covers (ahem) the issue and responds to commentary from Importance of Being Ernest and Joe Gratz].