Criminal infringement? May 16, 2007
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use , add a commentA colleague has recently posted a comment wondering about the impact of a piece of legislation suggested to the Congress this week by Attorney General Gonzales’ office, the “Intellectual Property Protection Act of 2007.” In a letter sent to the Speaker of the House and the President of the Senate, the AG proposes a series of amendments that would increase the enforcement of, and penalties for, criminal copyright infringement.
For most of our history, copyright has been an entirely civil matter, where an aggrieved party would sue the infringer directly for money damages and, sometimes, an injunction to stop the infringement. Only in recent years have we included criminal infringement in the law, where the government itself prosecutes the infringer and penalties can include fines and jail time. Most infringement is still handled through civil suits, but section 506(a) of the Copyright Act now defines criminal infringement in pretty broad terms. For infringement to be prosecuted as a crime, it must be willful, done for commercial advantage or financial gain, and involve either the copying and distribution of works with a total retail value of $1,000 or more or the distribution of a commercial work on a public network. This definition is broad enough to catch many activities like file-sharing in the criminal net, as it is intended to do, but it could also conceivably be used to prosecute other activities that occur in higher education, if the courts were to interpret “willful” and “commercial advantage” broadly enough.
The proposed changes to the law of criminal infringement include increasing penalties (up to life imprisonment for counterfeiting activities that result in a death), including “attempted infringement” as a new offense, giving wiretap authority for infringement investigations and making it easier for authorities to seize materials used in criminal infringement.
While some of these changes seem like a bad idea to me (like the notion of attempted infringement), it is not clear what impact they would have on the fair use provision that is so important to higher education. Presumably a reasonable reliance on fair use would defeat the willfulness requirement for criminal penalties to apply. My broader concern is that the increasing treatment of copyright infringement as a criminal offense is fundamentally opposed to the purpose of intellctual property law as expressed in the Constitution. Congress is allowed to make law around copyrights and patent rights in order “to promote the progress of science and the useful arts.” This justification reminds us that intellectual property is a public good and is thus different from physical property. Once we start treating copyright law as protection for a purely private property interest, similiar to laws against car theft, we step outside the rationale for federal action. Criminal law is usually a matter for the states, and Congress should remember that the reason it is given the power to legislate in this area is precisely because more is involved in copyright than mere private interests.
RSS explained by Educause May 14, 2007
Posted by Kevin Smith in : Scholarly Publishing, Technologies , add a commentA couple of months ago I wrote about Educause’s “7 Things You Should Know About Creative Commons,” which is part of a series designed to help faculty and administrators keep current with technologies that impact scholarly communications. Now a new virtual pamphlet is available, “7 Things You Should Know About RSS.“ RSS, which is usually said to stand for “Really Simple Syndication,” is an Internet protocol that allows users to subscribe to content feeds from lots of blogs and other web resources, and aggregate that content into a convenient reader.
Many readers of this blog probably already know about RSS, since it is one of the ways to subscribe to our feed. But it is worth keeping this simple, jargon-free explanation in mind, along with the other 2-page pamphlets in the series, because they are so useful for explaining to others those things that we ourselves might use frequently but have difficulty articulating. As it does so often, Educause has provided an important service to the world of technology in higher education.
Fair Use on NPR May 9, 2007
Posted by Kevin Smith in : Fair Use, Scholarly Publishing , add a commentA recent NPR story highlighted fair use as an important exception to the exclusive rights of copyright holders and discussed the Stanford Fair Use Project, a legal clinic designed to help artists, scholars and others defend fair use as they create new works. Although the focus of the story was a humorous and highly irreverant video creation that depicts Jesus Christ dancing to Gloria Gaynor’s well-known song “I Will Survive,” there is a good deal in the story for more traditional academic authors and creators to take note of, and perhaps to worry about.
Almost any campus official who deals with copyright can tell stories about the trials of helping scholars get work published when copyrighted material — often letters and/or illustrations — is involved. Sometimes the publisher demands that the author obtain and pay for all the permissions, even when a clear case for fair use can be made and the project lacks the funding to pay permission fees, or else a copyright holder denies permission (as the Joyce estate did) and the publisher is unwilling to proceed in reliance on fair use.
Sign of the Times May 2, 2007
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing , add a commentIt has got to be significant for higher education when the New York Times endorses open access textbook publishing. That is exactly what happened in yesterday’s editorial about a proposed discloser law for textbooks being considered in Washington state. The concern over textbook prices is not new, of course, but the attention the NY Times gives to an open access model surely is unusual. The editor moves from endorsing the proposed law to suggesting that disclosure is not enough; “creative solutions” like the Rice University Connexions project are required.
Connexions is an open-source and open content experiment at Rice, supported by the William and Flora Hewlett Foundation, that allows users to create and publish academic “modules” that others can locate, download and print for educational purposes. All of the content is offered under a Creative Commons license. The Times notes that one can print a 300 page textbook in electrical engineering from Connexions for a lot less money than it would cost to purchase a similar work, and right now users can also find featured course material for music and corporate governance at the site. In fact, there are almost 4,000 modules available on Connexions, browsably by subject area. With the NY Times getting on board, this may be a real harbinger of the future in higher education.
