Public Domain according to Google April 30, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories , 2commentsIt has been a busy two weeks, and I am rather late in adding my comments to Raizel Liebler’s “Open Letter to Google.”
The letter, which points out that Google declines to treat government documents as public domain works, even though section 105 of the Copyright Act says that copyright is not available for any work of the US government, has attracted considerable comment, but I still want to add my two cents.
Although Google seems to be the biggest champion copyright reformers have these days, there are several reasons not to rely too heavily on a large corporation principly interested in its own bottom line. As I have noted before, if Google uses its deep pockets to settle its fair use conflict with publishers, the situation for the rest of us is likely to be worse, not better.
Another problem with the Google Book Project is the speed with which it is being carried out, and the consequent inability to take adequate care for the results. As I librarian, I was distressed to find, while helping a researcher who had located a”snippet” on Google, that the citation on the snippet page was not to the correct source of the passage. The title page image displayed with the snippet referenced yet a third work, neither the one cited nor the source of the snippet. Such lapses make Google very problematic for its stated purpose — online access to the world’s off-line literature.
Raizel’s letter points out another problem — Google is assuming a overly narrow view of the public domain. Whether government documents are excluded because it is too difficult and time consuming to decide what is or is not a government work or because of an obscure fear that copyrighted work might be cited with a government production, the public is being denied some of the benefit promised. Google’s representation of the public domain is further constrained by the assumption that all post-1923 works are protected, even though the protection on many will have lapsed due to non-renewal, back when renewal was required. The public domain according to Google is much smaller than it needs to be, and those who hope that Google will lead the way toward free digital access to our shared intellectual heritage should take note and scale back their expectations.
WKRP in copyright limbo April 21, 2007
Posted by Kevin Smith in : Copyright in the Classroom , 1 comment so farHow do the struggles to release a DVD of a 1970s era sit-com inform our difficulties with copyright in higher education? At the very least, the problems encountered in preparing a DVD of “WKRP in Cincinnati” illustrate the complex layers of rights with which academics who study or create multimedia must deal.
Those of us old enough to remember WKRP will recall that, in a sit-com set in a radio station, pop music was a central part of the story. Often the humor of a particular situation was created or enhanced by the music being aired on WKRP. The sound track of the show was a collection of contemporary pop, but the producers only licensed those tunes for a limited time. It was difficult, in 1982 when the show ended, to anticipate the need to release the shows in a format that had not yet been invented. But once the licenses expired, the music could not be used in subsequent releases, so a DVD of the show has been long delayed.
As William Patry explains in his blog post on this case, the complexity of music copyright is that there are multiple rights and rights holders for each recording, including, at least, a copyright in the underlying composition (sometimes one for the music and one for the lyric) and a copyright in the performance. When dealing with video, the rights situation is even more complex, with layer upon layer likely owned by different people. These are the complications that go into re-releasing a TV show, but they are also the difficult shoals that have to be navigated when an academic wants to use existing video to teach filmmaking techniques, for example, or get permission to put a video into a digital archive.
The good news (if you were a fan) is that WKRP in Cincinnati will be released on DVD shortly. The bad news is that much of the contemporary pop music has been replaced with “elevator music” versions that were much cheaper for the producer to license. All those classic songs will no longer be “living on the air in Cincinnati.” This small piece of TV history has fallen victim to the same burgeoning and increasingly expensive market for permissions that holds back much academic innovation in multi-media.
A more serious look at these problems for higher education can be found in the 2006 white paper from the Berkman Center for Internet and Society called “The Digital Learning Challenge,” which is linked under recommended reading in the right hand column, through our Connotea feed. It is a detailed (and rather discouraging) look at the many ways current copyright law hampers digital teaching and learning, and it isn’t even enlivened by a sound track featuring Pink Floyd or Blondie.
Would a new copyright law be good news? April 16, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation , 6commentsProfessor Jessica Litman of the
I don’t know if Prof. Litman is right about a new revision cycle or not, but until I have reason to believe otherwise I am going to treat the possibility as a reason for optimism.
File-Sharing, YouTube and the DMCA’s chilling effect April 10, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use , 1 comment so farWith a new round of litigation threats from the Recording Industry of America, there has been a lot of attention, and confusion, about what obligations internet service providers have to respond when notified of allegedly infringing activity. The phrase “take-down notice” is beginning to enter our collective vocabulary, but it is important to understand to which situations it does, or does not, apply.
The take down notice is a product of section 512(c) of the Copyright Act, added by the Digital Millenium Copyright Act of 1998, and it is applicable only when the allegedly infringing material resides on the servers owned by the internet service provider. There is substantial evidence that these notices are used by content owners to remove critical material from the web even when the claim of copyright infringement is very weak.
A recent, almost comic, contratemps between law professor Wendy Seltzer and the NFL nicely illustrates how take-down notices work. Prof. Seltzer copied and uploaded to YouTube a short section of the Super Bowl broadcast — the part where they read that overly broad copyright warning that says that even “descriptions and accounts” of the game must be authorized by the NFL — in order to illustrate the absurd claims that some copyright owners use to try to frighten people from making legitimate uses of content. The NFL promptly sent a take-down notice to YouTube, which removed the video and notified Professor Seltzer. She responded with the statutory counter-notification that asserted her posting of the video clip was fair use, and YouTube put the video back. Then the whole cycle was repeated again. The clip, restored for the second time on April 4, is still on YouTube as of today, and Prof. Seltzer has certainly made her point about how copyright assertions, and especially the DMCA take-down procedure, can have a chilling effect on legitimate expression. (See Wendy Seltzer’s blog as well as the “Chilling Effect Clearinghouse“).
But when infringing material does not reside on the service providers’ own equipment (as clips in YouTube reside on Google-owned servers), then neither the take-down notice and counter-notice nor the expedited subpoena process apply. Thus, in cases of peer-to-peer file sharing, where the infringing material is only transmitted over the service provider’s network but is not stored or maintained on that network, the 512(c) procedure can not be used.
So what is the RIAA sending to universities regarding file sharing? The recent batch of letters sent to university DMCA agents, who are designated to receive take-down notices, have taken two forms. One is a “settlement offer” that is identified only by an IP address and that asks the institution to pass on to the student associated with that address. When and if the letter is passed on to the correct student, that person is told to go to a specified website and settle the claim for infringement or risk being sued. Since this procedure saves the RIAA the time and trouble of getting a subpoena to learn the identity of each student alleged to be sharing files, it is much more efficient for the RIAA; it puts the institution in the middle instead.
Some schools have responding by saying that they do not retain server logs long enough to match the dynamic IP addresses referenced in these settlement letters to the offending student, so the RIAA has added another letter, demanding that the institutions retain records in anticipation of possible litigation. Whether or not this demand is legally enforcable is a debated issue, but many universities are complying with both letters out of concern not to leave students unaware of their risk of litigation. So now the “chilling effect” that has long been associated with the DMCA is being exploited to save time and increase settlement revenues for the recording industry.
Thank you, Stanford April 4, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing , 3commentsThe copyright world owes a debt of thanks to Stanford University for creating a database of copyright renewal records for books published between 1923 and 1963. These dates are significant because anything published before 1923 has fallen into the public domain, while works published after 1963 had their copyrights renewed automatically by the 1976 Copyright Act. That leaves a lot of material in a kind of netherland — assuming the book was published with notice and registered, its copyright had to be renewed (under the earlier U.S. copyright law) after the initial 28 year term in order to have a second 28 year term. If a registration was not renewed (and many were not), the work fell into the public domain; if it was renewed, the work was automatically brought within the ambit of the new law and will be protected until at least 2019.
So it has been very important to know if these mid-century works were renewed or not. Unfortunately, the only Copyright Office records at the Library of Congress that are online are those filed after 1977, so there has been a big gap for which one either needed to search the printed volumes that were published every six months or just give up on knowing for certain. Now it is possible, and much easier, to determine with some precision whether or not many mid-century works are in the public domain and, therefore, freely available for scholarly use, digitization by libraries, etc.
It is interesting that the Google Book Project has treated all post-1923 publications (even government publications that are not subject to copyright protection) as still protected by copyright, giving that project an artifically narrow window on the public domain. Because Google’s scanning work is done so fast and in such volume, it is probably unrealistic to expect them to make fine copyright distinctions. Nevertheless, those distinctions just got a lot easier, and it is to be hoped that Google, or other digitization projects, will use the Stanford database to provided greater access to material that really is the common property of our intellectual heritage.
