“A Disgrace to the Forces of Evil” May 29, 2007
Posted by Kevin Smith in : Copyright in the Classroom, Fair Use , 1 comment so farAlthough it is available from lots of sources, I can’t resist adding a reference to the “A Fair(y) Use Tale” video to this site. This 10 minute remix video, constructed entirely from Disney cartoons, offers a very clever explanation of copyright and fair use while at the same time asserting the latter as the justification for the whole creation. It could provide a valuable resource for teaching students about copyright and fair use; its evident bias in favor of aggressive fair use provides a needed balance to the one-side educational material offered by the content industries.
The video, which was created by Bucknell professor Eric Faden, is available on YouTube, of course, or through the Stanford University Center for Internet and Society web site (which is the link provided above). The presence of Stanford Law School as a host site may prevent the promiscuous use of take down notices to suppress this amusing and important work; as the video itself says, Disney is notorious for using its copyright to intimidate others and Stanford may be indicating its desire to push back some against that practice.
Be sure to read the “FBI Warning” at the beginning of the video; it is not at all what we are used to seeing on commercial videos. And listen for the quote used to title this post, which is part of the explanation of fair use.
A Seventy Percent Solution? May 26, 2007
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation , add a commentIt is a little bit belated to be pointing out this April 7 article (”It’s a Steal”) by John Lanchester from the Manchester (UK) Guardian website, but it provides a nice counter piece to the screed advocating perpetual copyright that appeared in last week’s NY Times (see post here). Lanchester, at least, is aware of the balance that copyright law is supposed to strike between incentives for creators and the public interest in access to information and the raw materials for new works. He offers a poignant example of how copyright restrictions have hampered his own creative efforts as an author, and he takes a quick but eloquent romp through the history of copyright law in England. Most important is his acknowledgement that 70% of creative works are currently still protected by copyright but no longer in print. This massive limitation on public access with little corresponding economic benefit to creators is, perhaps, the worst imbalance created by current laws (although Lanchester also cites the extension of copyright term whenever Mickey Mouse looks over the abyss of the public domain). The solution he suggests, a limited copyright term with an ongoing right to minimal royalties, is not fleshed-out well at all, and may be unworkable, unwise, or both. The point is not that this one author can solve the problem; the value of the article is for a creative writer to recognize publicly that our current law has swung too far toward protection and needs to be realigned.
Helprin, Chaucer and literary influence May 22, 2007
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation , 4commentsSeveral colleagues have asked me if I don’t have some pithy and devastating response to make to the opinion piece by Mark Helprin in Sunday’s New York Times, A Great Idea Lives Forever. Shouldn’t its Copyright? In some ways the best refutation of Helprin’s editorial is simply to consider its title carefully. Do we really want great ideas owned by individuals forever? While copyright does not, of course, protect ideas, perpetual copyright would vastly increase the amount of litigation needed for any new work of creativity in order to prove that its dependence on all that had preceded it was on the correct side of the idea / expression line. What a powerful weapon the James Joyce estate would wield to suppress criticism and scholarship for many, many more years if Helprin got his wish.
Should Boccaccio have been able to sue Chaucer to establish that only ideas and not expression were appropriated when Chaucer wrote his “derivative works?” Without literary borrowing, the great works of world literature would not have been possible; Chaucer could not have written The Canterbury Tales and Mark Helprin could not have written… whatever Mark Helprin has written. Then there is the culture of remix and parody fostered by the Internet — a whole new kind of creativity that should not be stifled in its infancy. So perhaps the most appropriate response to Helprin is to read another recent article that celebrates the interplay and interpenetration of cultural creation, The Ecstasy of Influence by Jonathan Lethem, which appeared in Harpers in February 2007.
Publisher position on author rights May 20, 2007
Posted by Kevin Smith in : Authors' Rights, Copyright Issues and Legislation, Open Access and Institutional Repositories , 1 comment so farThree academic publishing organizations recently released a short position paper called “Author and Publisher Rights for Academic Use: An Appropriate Balance” that is worth a look from all who are concerned about scholarly communications. For higher education, the position paper contains elements that evoke hearty agreement and others that demand objection.
If, as a recent comment on the LibLicense list suggested, the purpose of the paper is to call wide attention to two facts, that many scholarly journals already have very “scholar-friendly” policies built into their publication agreements and that copyright is not necessarily a barrier to academic discussion and comment, there would be little to argue with. It is quite true that many academic journals already allow authors to retain many or most of the rights necessary for subsequent teaching and research uses. It is important that authors read those agreements to be sure this is true in their specific case and to consider whether or not self-archiving or some other form of electronic deposit is permitted, since such access is becoming more and more important to scholars and to scholarship.
On the issue of digital “open access” availability, the position paper takes an awkward stance. While citing several journals that have adopted “author-pays” models of open access as leaders, the paper marshals several arguments against mandated public access for research funded with public money. Some of these arguments are self-contradictory; if one fear about open access is that it will “confuse the scientific record,” why is it suggested that a better course than mandating access to the final version of an article is to post pre-prints? While pre-print repositories seem less threatening to the traditional business model of journal publishing, the scientific record is best preserved when access to the scholar’s final word is available to all.
One comment at the very end of the report deserves comment. The publishing organizations take note of the educational exceptions and limitations built into copyright law but assert “that these exceptions are thus far limited to traditional photocopying and do not permit the exploitation of such materials [journal articles] over the Internet.” This is wishful thinking; no court, that I am aware of, has decided one way or another about how far educational exceptions apply in the digital realm. The TEACH Act, although largely a failure at its stated purpose, is clearly intended to apply some leeway for education to the Internet. And the oft-repeated assertion that copyright law is technology neutral implies that there is fair use on the Internet, as the recent Perfect 10 decision held, even if its educational boundaries have not yet been clarified.
Caching, Thumbnails and a Fair Use Win May 18, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use , 1 comment so farI am generally wary of relying too heavily on Google to fight all of the battles in copyright law, mostly because their interests and those of higher education don’t always seem very similar. But a fair use win for Google is usually good news for us as well, and the case decided recently (here is the decision in Perfect 10 v. Google) by the Ninth Circuit Court of Appeals is important on a number of points.
The Court of Appeals variously upheld and reversed parts of the previous district court ruling, but the upshot was that fair use was found for three specific activities: the routine caching that computers must do to display web pages, in-line linking and framing of web pages where the target page never resides on the server controlled by the web author doing the linking, and using thumbnail versions to index images found elsewhere on the web. None of these holdings are unique or new, but the Ninth Circuit does a nice job of explaining the technology involved and the reasoning behind its ruling. The “server test” used to find that in-line linking is not an infringement seems so simple and intuitive that one has to fear that other courts will try to complicate it. Linking, of course, is an important way that higher education tries to avoid infringement, so it is nice to be reassured.
As for caching, it seems amazing that we should have to be reminded, but the Court’s analysis is clear and useful:
[E]ven assuming such automatic copying could constitute direct infringement, it is fair use in this context… a cache copies no more than is necessary to assist the user in Internet use… Such automatic background copying has no more than a minimal effect on Perfect 10’s rights, but a considerable public benefit.
The only rain on Google’s parade is some language about secondary liability (liability for contributing to direct infringement by someone else) that could pose problems for Google in that part of the present case, which was remanded to the lower court, and in the future. An nice explanation of the potential harm in this part of the opinion is available here on Prof. Wendy Seltzer’s blog. For higher ed., however, this case is a nice reminder of principles that are necessary and ought to be obvious.
