The downside of playing nice March 28, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use , 2commentsThere has been lots of talk in copyright arenas recently about settlements. Some settlements, like the “pre-litigation” settlements the RIAA is offering to college students, where the industry collects roughly the same amount they had been getting from their lawsuits without having to bear the expense of actually filing, are clearly bad deals for the public. But the downside of other settlements is not so obvious.
Recently English professor Carol Schloss settled her lawsuit against the James Joyce estate. She had sought a declaratory judgment that quoting from unpublished letters between Joyce and his daughter Lucia in a scholarly book was fair use, and the settlement was clearly a victory for Schloss. The Joyce estate agreed not to sue her for using the excerpts, which had been removed from her book about Lucia under threat of an infringement claim, on her web site and in future publications. But it is less clear that this is a victory for scholarship in general. If the case had gone to trial, a decision would have had precedential value, and we would have had another bit of clarity in the murky world of academic fair use. Fair use is so ambiguous that scholars often refrain from certain uses simply to avoid the uncertainty. Most of us assume that quoting from primary sources in scholarly work, just as Schloss wanted to do, is fair use, but it would have been nice for a court to confirm our impression.
Instead, the settlement agreement only resolves the issue between the parties to the case and has no impact on fair use for the rest of academia. In fact, the AP paraphrased the attorney for the Joyce estate this way: “Nelson also noted that the estate granted only Schloss permission to quote the materials under limited circumstances, meaning neither she nor other scholars would be permitted to use them outside the scope outlined in the settlement agreement.” Not really a Phyrric victory, but not a helpful one either.
Suggestions that the various publishers who are suing Google over the Book Project might settle for some lump sum payment from Google’s deep pockets offer a similar prospect. If Google were to lose its fair use claim in court, of course, the effect on fair use for the rest of us could be profoundly negative. But if they fought on and won, the prospects for library digitization and public access would be much brighter. A settlement, however, will set only one precedent — that lots of money can solve all disputes. It will not clear up the fair use picture and it will not benefit libraries that can not afford to purchase the right to digitize their collections for the benefit of the public.
So with all due respect to my grandmother’s admonition to get along with everyone, I have to recognize that sometimes there is a downside to playing nice and coming to a settlement agreement.
More about the FAIR USE Act March 25, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Digital Rights Management, Fair Use , 1 comment so farSeveral weeks ago I promised more comment (read previous post here) after I had read up on the proposed law, so here goes.
Perhaps the biggest confusion about the FAIR USE Act is caused by its name; since it is really aimed at reforming the anti-circumvention rules of the DMCA, it does not directly deal with the fair use provision of the Copyright Act. In fact, in his remarks while introducing the bill, Rep. Boucher explicitly stated that “the revised bill does not contain the provision which would have established a fair use defense to the act of circumvention.” Boucher’s co-sponsor, Rep. John Doolittle acknowledged in a recent interview that it was necessary to narrow the scope of the bill somewhat by eliminating such a provision because the content industry would oppose a full fair use defense so vigorously.
But the FAIR USE Act does not entirely ignore fair use either. Rather inconsistently, Rep Doolittle, in the same interview mentioned above, also referred to the proposed bill as an attempt to “preserve fair use for the consumer.” What the FAIR USE Act actually would do is to introduce an exception to the anti-circumvention rules that is not as broad as fair use, but that would establish a defense to charges of circumvention that looks a lot like fair use. Specifically, section 3(b)(v) of the new bill would allow circumvention to gain access to “works of substantial public interest… for purposes of criticism, comment, news reporting, scholarship, or research.” This sure sounds like fair use, especially in its focus on activities strongly protected by the First Amendment. One major difference is that, by providing an exclusive list of the allowable purposes for circumvention, this bill would not permit circumvention for most commercial purposes, even if the use would otherwise fit within fair use. Also, “works of substantial public interest” is presumably a narrower category than all the works that might be subject to fair use, but defining this narrower category would certainly generate as much as litigation as fair use itself does.
The big question for the FAIR USE Act is whether it has any chance of passage. Two previous versions (which did include a full fair use defense to circumvention) failed to advance very far in Congress. Rep. Doolittle admits frankly that the change to a Democratic-controlled Congress has not significantly improved chances this year, since the new Chair of the relevant House committee is less sympathetic to the bill than his predecessor. The hope is that the somewhat narrower scope of the bill, combined with increasing public awareness of the draconian impact of DMCA anti-circumvention rules, will improve the environment this time around. Given the other valuable (and necessary) provisions found in the bill for libraries and for classroom teaching, even a version without the broad exception quoted above would be worthwhile.
Publishing Mergers –Not Good for the Market or Libraries March 23, 2007
Posted by Pat Thibodeau in : Scholarly Publishing , add a commentThe consolidation of the publishing industry through mergers and acquisitions has caused quite a few concerns for libraries and universities. Economists who are studying this market have found that it does not act like the market for most common goods.
The academic journal market is very inelastic — there are no perfect substitutes for a scholarly journal. Each journal has its own unique content and emphasis. For example, an academic health sciences library needs to subscribe to both PEDIATRICS and JOURNAL of PEDIATRICS; it would be difficult, if not impossible, to rely on just one of these publications.
When a large publisher buys a smaller one, it can raise the cost of subscriptions and libraries still have to purchase the subscription. Historically, prices have increased after mergers and acquistions.
As a publisher increases the number of titles, the library begins to pay more and more to that publisher instead of several smaller ones. With the creation of “big deal”, discounted packages of all or a portion of the publisher’s journals, a library can be faced with spending all its funding on a few big packages and not having money to purchase journals from smaller publishers. Acquiring new titles to support facult and students becomes more and more difficult since funds are tied up by these big deals.
With consolidation and larger market shares held by a few publishers, it also becomes more difficult for a competitor to enter the market.
The library community through the Information Access Alliance has been working with antitrust lawyers and economists to study the dynamics of mergers on the marketplace. They have also been alerting the US Department of Justice to the potential impact of current and future mergers. Read their special report Publisher Mergers: A Consumer-Based Approach to Antitrust Analysis to find out more about the impact on the marketplace. There is also a document describing the most recent acquisition of Blackwell Publishing (a publisher of society journals) by Wiley.
If you are a member of a journal editorial board that is involved in a merger or acquisition, you may want to ask whether this is not only good for the journal, but also good for academic access to information.
Another warning for faculty authors March 22, 2007
Posted by Kevin Smith in : Authors' Rights, Scholarly Publishing , add a commentOur Scholarly Communications colleague at UNC, Deborah Gerhardt, just published this important warning about publication contracts in the Chronicle of Higher Education.
Her point that so-called “non-compete clauses” can hamper a scholar’s ability to publish later work on a particular topic is another reminder that, as the conflicts over copyright get more intense, it is vitally important to read publication contracts carefully. Deborah provides examples of language to look for and language to beware of, and the Duke Scholarly Communications office is always willing to help examine publishing agreements for faculty and student authors in order to protect those rights that are most important for supporing continued creativity and scholarship.
YouTube, Copyright and Innovation March 20, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use , 4commentsWhen Viacom filed a copyright infringement lawsuit against YouTube, which is owned by Google, we all knew that the fur would fly. No one is neutral about Google these days, and YouTube has also created fierce partisans in the copyright wars.
It is quite possible that the lawsuit is simply a bargaining tool in the fight over the licensing payments that Viacom wants from Google, but, if the case goes to trial, the real issue will be how far copyright law can be used to prevent technological innovations that depend, to some degree or another, on using copyrighted material without permission. This debate is at least as old as the photocopier and the VCR, but the terms of the rough deal stuck by the Supreme Court in the 1984 Betamax case are still being contested.
Several newspaper and online columns over the weekend cast interesting light on this debate .
In the New York Times on Sunday (March 18), Larry Lessig of Stanford Law School makes the important point that Viacom is trying to use the courts to get around the compromise on innovation versus infringement that was established by Congress when it passed the Digital Millennium Copyright Act. The DMCA created a “safe harbor” for ISPs that merely hosted infringing material on their servers without specific knowledge of the infringement, so long as they act according to prescribed procedures once they have such knowledge. Now Viacom, emboldened by the Supreme Court decision in the Grokster case, is trying to revise that compromise through the back door, using the Courts new “inducement” theory of secondary copyright liability to undermine the policy Congress enacted.
Many predicted that the Grokster decision would have a chilliing effect on technological innovation; Lessig’s column suggests that the Viacom suit is a huge block of ice to contribute to that chill.
Along the same lines, Fred von Lohmann of the Electronic Frontier Foundation writes about all of the new technologies that might not have seen the light of day if copyright holders could sue based on the potential that users of the new innovation could infringe those copyrights. Even if one excludes the hyperbolic inclusion of reading glasses on his list, von Lohmann makes a powerful point — photocopiers, VCRs, iPods and even public libraries might be subject to restrictions and per-use fees in the world Viacom envisions.
James Boyle, in a column in the Financial Times, tries to put this debate in perspective by noting that, although it is sometimes difficult to feel sympathy for the ravenous giant that Google has become — it is no longer, as Boyle says, “a helpless start-up” — the interests that Google has pursued in its copyright conflicts often line up with the public interest. His reminder that the issues are much more complex than simply yelling “stop thief” at YouTube and Google (a tactic which Google’s rival Microsoft tried in a recent speech and op-ed), and that we as consumers of intellectual property also have an important horse in this race, are welcome indeed.
