Power, error and a “cruel historian” September 26, 2008
Posted by Kevin Smith in : Scholarly Publishing, Technologies , add a commentThere was a short but fascinating article posted on the Association of College and Research Libraries’ blog earlier in the month called “Information is Power — Even When it is Wrong.” Starting with a truly frightening story about how easily misinformation is spread on the web, librarian Amy Fry discusses some important lessons that we not only can, but must, learn about information in the digital age.
Misinformation is not new, of course, and in an election year we are reminded that it is probably most often distributed intentionally. But good, old-fashioned error can also account for much mistaken information, and Fry’s article is a reminder of the tremendous and irreversible power that such errors gain; they quite literally take on a life of their own, and become, is some sense, as influential as truth.
Fry’s lessons are deceptive in their simplicity; but they remind us that simple rules are often the best guide to practice. Her first rule — “Metadata is important” — codifies what librarians have know all along; information is only as good as its source, date and application. Two other rules remind us that the Web is a different, and frightening, place in many ways. That aggregators can mislead and that Google possesses enormous power to shape thoughts and beliefs on a massive scale are lessons too important for us to forget. And finally, there is the powerful truth that there is no substitute for critical thinking. If we all ever really learn that lesson, the world will be a much better place.
Fry’s article reminds me of a book I have been reading lately, “The Future of Reputation” by Daniel Solove. His analysis of how easy it is to be subject to a viral attack is another example of the new conditions we have to adjust to as scholarship, and so much else in our lives, begins to move at the speed of digital. Solove posits a fundamental tension, in the digital world of instant mass communication, blogs and social networking site, between freedom and privacy. We now have the means to express ourselves more freely and fully than ever before, and to make a potentially permanent record of the things we say about ourselves and others. The danger, of course, is that “the Internet is a cruel historian” that allows others to easily discover all the things we have written about ourselves or that others have written about us, whether they are true or not. Privacy and reputation are in jeopardy from this new expressive freedom.
Solove’s book is sobering from many perspectives, including as a reminder of the world in which scholarship is carried out today. With so much preliminary work on scholarly ideas being done by e-mail, in GoogleDocs, or on blogs, we need to remember that our tentative ideas and first drafts, our wild proposals and our silly comments, may not ever really be completely gone. Errors and misstatements may live forever, and they may spread around the world in seconds; it will now require a special effort to ensure that there is a final “version of record” of any piece of scholarship, something that has not been much of a concern in the past. There are tremendous opportunities for collaboration and more open commentary and correction in digital scholarship, but it is also an environment that requires a new level of awareness and attention.
Open Access Day @ Duke September 23, 2008
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing , 1 comment so farMark your calendars for world-wide Open Access Day! October 14, 2008 is being marked as Open Access day by three important organizations in the fight for more openness in scholarship and research — SPARC, the Public Library of Science, and Students for FreeCulture.
The big international event will be a webcast feature Noble Prize Laureate Sir Richard Roberts and Prof. Philip Bourne, the founding editor of “PLoS Computational Biology.” This will be a wonderful opportunity to learn about the benefits of, and opportunities for open access, especially in the area of health and medical information and scholarship. More information about the webcast, and the celebration of Open Access Day in general, is available at this website.
At Duke we also have some special events planned. The webcast will be received in two locations — in the Medical Center Library and in the Perkins/Bostock Library. Both opportunities will be a 7 pm, and participants will be able to ask questions of the presenters and also discuss the issues raised amongst themselves. There will also be an event focused on local efforts — OA @ Duke — in the afternoon of October 14. From 2 pm until 3:30 we will gather in Perkins Library 217 to here about what is being done at Duke and what opportunities are available for scholars. Our keynote address will be by Prof. Jamie Boyle of Duke law school, and there will also be short presentations by Law Librarian Dick Danner, Dr. Ricardo Pietrobon of the Medical School faculty and Duke student Josh Sommer, a passionate and articulate spokesman for patients’ rights. Tables will be set up in both libraries throughout the day to distribute literature and to allow view of several videos about the important role of open access to scholarship.
If you are in the vicinity of Duke on Oct. 14, please join us to learn and celebrate Open Access, at Duke and around the globe.
Rough Week, legislatively September 19, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Scholarly Publishing , 2commentsThe other troubling developments last week involved legislative proposals to amend the copyright law. It is surprising that Congress should be so interested in copyright right now, what with an election coming up. Nevertheless, as Public Knowledge phrased it on their website, there was a “perfect storm” of [bad] copyright activity last week.
First was the approval, on Sept. 11, in the Senate Judiciary Committee of a bill to (again) increase enforcement of intellectual property rights. This is mostly a big gift to the major content companies, especially in its provisions to allow the government to prosecute civil suits for IP infringement, with the damages going to the content owners. The taxpayer gets to foot the bill, in other words, for Hollywood and the recording industry, something that is rather a recurring theme in these bills. The Enforcement of Intellectual Property Act of 2008 would also increase the number of cases in which civil forfeiture is possible — that means that property implicated in infringement could be seized, even if it belonged to innocent parties and even if it contained private data — and it would create more bureaucracy to oversee enforcement of what is, after all, supposed to be a civil action in which the plaintiffs traditionally have been responsible to enforce their own rights. This bill, which has incorporated much of the “PRO IP” bill about which I have written before, reverses that tradition and gets the government to do much of the work for private industry.
Also moving forward are the Orphan Works proposals. While it is still not clear if any definitive action will be taken, it does seem that the direction of amendments to the bill are more and more tending to render it useless for its purported purpose. As it becomes more freighted with burdensome requirements and limitations, it is increasingly likely that users of orphan works will continue to rely on fair use, just as they must do now. Thus passage of the bill will not likely accomplish its stated purpose of freeing up the huge amount of cultural material for which there is no rights holder to be found and no market to be harmed. For the sake of calming some very unrealistic fears, those who want to make culture and scholarship more widely available and usable will be left to make the fair use gamble that currently chills so much teaching and learning.
Finally, the winner for bad idea of the week was the poorly-named “Fair Copyright in Research Works Act,” which could be more aptly called the “Taxpayer Pays Twice Act.” This bill is intend to reverse the NIH Public Access policy, about which I have written a good deal. Its intent, then, is to make sure that taxpayer funded research stays behind toll barriers so the those who paid to have the research done must pay again to read the results of their investment. Accountability is reduced, and nobody wins except the special interests who insist on uncompensated transfers of copyright before they will publish these works, then sometimes charge tens of thousands of dollars for subscriptions. There is a story about the bill here on Ars Technica, and a summery of comments is available on the Open Access News site here.
Perhaps the best news one can find about the “Fair Copyright” bill is that it is quite unlikely to be adopted this term, as “Library Journal” reports here. The impact of this bill on scientific and medical research would certainly be regressive, denying research and taxpayers the chance to take advantage of the new opportunities offered by the digital environment. But it is also bad policy because it would enact into law an unnecessary and potentially damaging limitation on how the government can spend its money. The bill is structured to make it illegal for the government to place, as a condition of government funding, any provision that would require the transfer or licensing of a copyrighted work. The potential unintended consequences here are considerable, as are the opportunities to force the government to spend tax money over and over again to gain the use of material paid for by taxpayers in the first place. Conditions on the grant of money is a major way Congress enacts policy, and no one seems to have examined how many contracts and grants might be invalidated, nor what the impact could be, if this legislation were adopted. Indeed, some of the impetus behind the bill seems to be a “turf war” over what policies can or should be pursued via appropriations; sponsor John Conyers explicitly referred to the need to defend what he called “sacred turf.” This bill is an object lesson in the harm that can be done when legislators listen only to the demands of a narrow group of special interests and to their own parochial prerogatives instead of the broader need to serve the public interest.
As with the judicial decision reported earlier, these bills, with the exception of the last one, will not do much direct harm to academia. They would leave us where we are, while doing most of their damage to the public interest in general. But the “Fair Copyright in Research Works Act” is both terrible policy and potentially devistating to the progress of scholarly research. The positive impact of the NIH Public Access policy is beginning to be felt; choking it off at this point would be the height of foolishness. We seem to be able to relax for the remainder of this Congressional term, if the speculation is correct, but we should remain ready to fight tooth and nail if this poorly-conceived bill ever develops any real legs.
Rough Week, judicially September 16, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use , 1 comment so farThis past week has seen at least three developments in copyright law and legislation that all bode badly for higher education and user’s rights. Each however, need to be seen in context, since none may actually pose the imminent threat that initially appears. This post will address the case decided during the week, the next will deal with some legislative developments.
There was a decision last week at the district court level in the case of the Harry Potter Lexicon that found that, even though the Lexicon is a transformative use that creates a new work with a different purpose than the novels on which it is based, it is not a fair use. The court enjoined the publication of the Lexicon and awarded the minimum possible damages (less than $7000) to J.K. Rowling and Paramount Pictures in a decision that is really very carefully reasoned and that hews closely to the facts in the particular matter.
The director of the Fair Use Project at Stanford discusses the decision here.
The court rejected a fair use defense based on this (abbreviated) analysis of the fair use factors:
- The purpose of the use is mostly transformative, creating a reference guide to the the series of novels, but this factor does not wholly favor defendants because of nearly complete, verbatim copying of two short reference guides that Rowling had already published (on fantastic creatures and quidditch) and because more of the novels are quoted verbatim that is reasonable necessary for the transformative purpose.
- The original works are highly creative and deserving of the fullest protection permitted by copyright law.
- The amount used, and its substantiality, is greater than is necessary for the transformative purpose. The judge explicitly declined, however, to find bad faith or to endorse Rowling’s reference to “plundering,” writing instead that the Lexicon author seemed to be carried away by his enthusiasm for the books.
- While noting that Rowling is not allowed to corner the market for reference guides to her novels, the court held that there was substantial impairment of her market opportunities in two senses. First, the Lexicon would directly compete for sales with the two previously-published guides mentioned above (but not with the novels). Also, Rowling is entitled to license derivative works such as a musical production based on Harry Potter, and the reproduction of songs and poems in the Lexicon could harm this opportunity.
In many ways the decision reads sympathetically toward the Lexicon author and is critical of Rowling and her overreaching claims to absolute control over any writing about the Harry Potter series. I was especially pleased to see the judge single out the language used by plaitiffs of piracy and theft for criticism. In the end this decision is not as harmful as it could be. The potential in this case was for a broad decision that would severly limit the scope offered in many recent decisions for transformative uses within the fair use analysis. Instead this is a thoughtful decision that sticks very closely to the specific facts and does not do to much damage to the kinds of transformative uses that are important in higher education. It is a reminder that scholars should be careful not to appropriate more of an original work than is reasonably necessary to accomplish a legitimate purpose — criticism, commentary or organization for reference. It is certainly a limitation on the freedom to copy even for such purposes, but it has not created the mine field for such works that could have resulted from a less considered opinion.
Copyright in laws September 10, 2008
Posted by Kevin Smith in : Copyright Information Notes, Copyright Issues and Legislation , 1 comment so farWhile it could be said that trademark and patent are close cousins to copyright law, there is no such thing as copyright’s in-laws. The real question is, should there be copyright in laws?
Most people know at least vaguely that government works in the US are not subject to copyright protection. Of course, nothing is ever that simple. First, section 105 of the copyright law says that there is no copyright protection in works of the United States government, meaning only works created wholly by government employees in the course of their employment are unprotected; works created by others on behalf of the govenrnment may still have copyright (as I noted a few days ago here). Second, section 105 says there is no copyright in works of the United States government, meaning that the law is silent about works created by state and local governments. And that, apparently, is the rub.
Some time ago, the state of Oregon tried to assert that it held copyright in its state code of laws. After a brief skirmish with some advocates of open government, Oregon backed down from this claim, saying that, at least, it would not enforce any claim it had.
Now comes news that the same person who took on Oregon has been told to stop posting the legal code of the State of California — there are reports from Slashdot here, Techdirt here (with lots of generally unenlighting comments), and the Santa Rosa Press-Democrat here.
The argument against states and local governments asserting copyright in their laws and regulations is pretty straightforward — people should be able to access the rules of communal living that they are expected to follow. California, on the other hand, has an interesting reason for making its copyright claim; the $800,000 it raises by selling print copies and digital access to its state code benefits the California taxpayer. And no matter what our vague intuitions might tell us, the federal copyright law does not prevent such a claim.
In fact, copyright claims even in national laws are not unusual; most countries with roots in the British empire, other than the US, have some version of “Crown Copyright.” But in the United States, at least, it is clear that the Copyright Office does not look kindly on these claims for protection in state and local laws, even if they are not excluded by statute. The Compendium of Copyright Office Practices informs examiners in the Office that:
Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.
So the Copyright Office would decline to register such works as a matter of public policy, which would complicate any attempt by Oregon or California to sue to enforce the copyright claim. It also speaks volumes about the claim that copyright claims in public laws are intended to serve the interests of the public themselves; the Copyright Office apparently doesn’t buy it.
The bottom line here is that anyone relying on the absence of copyright in government works has to be careful. Contractors who work for the government but are not federal employees may hold copyright even in US works, and the possibility of claims by state and local governments is very real indeed.
