A flurry of activity April 30, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use , 1 comment so farThere has been a sudden burst of activity in the Google Books case and the process of arriving at a settlement of the copyright infringement claim brought against Google by a group of authors and a publishers trade group. Last week Publishers Weekly reported that Judge Chin, who is hearing the lawsuit, rejected a motion to allow the Internet Archive to intervene in the case, which would have meant that IA would become a official party to the litigation. As PW says, “The IA wants to remove orphan works from the settlement and limited the settlement to rightsholders who have filed a claim.” With the denial of their motion to intervene, IA will have to look for another way to attain this end. More on that in a minute.
This week, two quite surprising developments have been reported (and really, the denial of IA’s motion was not very surprising). First, Judge Chin has decided to delay the deadline for authors to opt-out of the settlement class by four months (until September 4), with a parallel delay in the final hearing to approve or reject the settlement (until October 7). It seems Google had asked for a shorter delay in the deadline, and all parties seem to have been surprised by this ruling. But maybe it is not so surprising in light of this article in yesterday’s New York Times reporting that the Justice Department has decided to begin an inquiry into whether the settlement agreement poises an anti-trust problem. It is hardly a novel thought that there might be a anti-trust concern in the proposed monopoly over digitized books that would be created by the Google settlement, but it is, perhaps, unusual for the Justice Department to take notice of those concerns so quickly and to act before there is a final hearing on the settlement. Perhaps it was notice of that decision from Justice that prompted Judge Chin to delay the deadline and hearings.
So with this extra time, what should the concerned parties be doing? Specifically, is it possible to get the judge to limit the settlement to the parties in the litigation and to exclude orphan works? This long blog post by Professor Pamela Samuelson about the settlement suggests that there is another option, an objection by members of the putative class to the very certification of that class. As Samuelson points out, there has not yet been any hearing on whether or not the class in this class action suit really represents all of the authors who would be members of it, and with the settlement, there is not likely to be such a hearing. Google, as the defendant in the suit, would usually challenge a class certification and force the court to decide that the plaintiffs before him really do represent the rights and interests of all of the proposed class members. But with the settlement, Google has a huge financial incentive to support the class certification rather than oppose it — only through class certification will they get the compulsory license to digitize orphan works that is really at the heart of this settlement.
It is hard to believe that the Authors Guild really does represent the interests of the millions of rights holders in orphan works who, by definition, are not exercising those rights and who will not gain from the settlement. To include orphan works in the settlement is a shortcut to a lucrative business model, not a genuine effort to protect rightsholders, and it will likely derail legislative efforts to address the orphan works problem in a comprehensive way. It should be noted that even though the settlement is technically non-exclusive, no one else who undertakes a digitization project in the future will be able to get such a compulsory license for orphan works, since it depends on an extremely expensive and difficult manipulation of a very quirky aspect of US law, the class action mechanism. So if the Internet Archive really wants to exclude orphan works from the settlement, their best move would be to assist copyright holders who are members of the putative class to file an objection to certification and try to force a full hearing on the issue of representation.
If a class was ultimately not certified, the settlement would apply only to the parties in the litigation, and one has to believe that those parties would not be interested in settling unless they could get the immense commercial advantage that a class settlement would provide. The final result might be that the fair use issue with which the case began would actually go to trial. And that, I think, would not be a bad thing.
Ancient texts and a modern database April 27, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Copyright in the Classroom, Open Access and Institutional Repositories , add a commentWhat could be controversial about the United Nations launching an online database of 1,200 ancient documents from around the world, the World Digital Library? Surely this is a significant contribution to making scholarship more efficient and open.
But several commentators, such as this one from Slashdot, have noted that the legal page of this database appears to suggest that there is copyright to be reckoned with in these documents. As Slashdot notes, since some of these materials are over 8,000 years old, this sounds like an unprecedented claim. It seems worthwhile to take a minute and try to sort out what is being said on this page, and what might lie behind it.
First, it is worth noting that the language the UN uses about copyright is very general and indeterminate. It merely says that the country that contributed the material is the proper source for copyright information and that it is the responsibility of the user to determine what copyright issues, if any, need to be addressed. This is pretty much just “cover your (self)” language designed to permit the UN to say “we warned them” if any disputes should arise. But are there really any possible disputes?
I know of no national copyright law per se that could claim an interest in materials this old for any person. But that is not to say that governments themselves might not claim such an interest, perhaps under laws designed to protect “national patrimony.”
Another possibility, depending on how the UN site is structured, would be a claim under a database protection law. Although the United States pretty well rejected database protection in the Supreme Court’s Feist v. Rural Telephone Service case, it is a fact in other countries. The US Supreme Court said that no copyright protection is available for “sweat of the brow,” so a database that merely compiles public domain documents or facts in an obvious and unoriginal way (like a phone book) is not entitled to protection. The Feist ruling would probably include a database like the World Digital Library if US law were applied. But other countries have taken measures to protect “sweat of the brow” by adopting special legislation that gives copyright-like protection to those who compile databases. The European Union’s Directive on the Legal Protection of Databases is one such law. If that law applied, and it could well apply to a dispute arising about materials from one of the EU member countries, certain uses of the material in the database would be prohibited. It is not at all clear that these database laws would prohibit isolated copying of ancient documents found therein, but they would certainly bar wholesale or systematic copying.
The area of database protection is a complex and contested one. There have been recent protests in Europe arguing that the database directive is ineffective and stifles innovation. In the US, there have been abortive attempts to introduce similar legislation, but they seem to have subsided, at least for now. Anyone who would like to know more about the nature and scope of database protection in the United States cannot do better than read Prof. Mike Carroll’s recent blog post on the subject, “Copyright in Databases.”
One more topic from eIFl: Fair Use April 16, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use , 2commentsBecause part of my assignment at the eIFL IP conference was to talk about library copyright policies, it was inevitable that we would talk some about fair use. For one thing, it is what I know about, so I invariable began a discussion of a particular library issue by talking about how it would be approached with fair use versus how you could address the same issue in a jurisdiction without an exception like fair use. Although a few countries — notably Israel and Japan — have adopted a US style fair use exception, none of the countries represented at eIFL had such a provision. So we were left to discuss just how important it is, or is not, for libraries to function.
The conference began with a presentation from Becky Hogge, who was the Executive Director of the Open Rights Group in the UK and remains a writer and commentator on technology and IP. Becky ended her presentation by pointing us to a web site called Thru-You.com where someone named Kutiman makes music mixes that are created entirely from other videos on YouTube. It is hard to describe these videos, but a lot of fun to watch them. The point to emphasize here is that these videos are another example of the flexible application of fair use, especially regarding the role of transformative reuses of copyrighted content.
With that introduction, it was interesting to hear about and discuss the relative merits of fair use for libraries. I am sympathetic to the worry that simply adopting a word-for-word version of the US section 107 will not be effective in other countries. After all, section 107 was not added to the US law until fair use already had about 100 years of development in US courts, and the accumulation of case law has continued since the 1976 act was adopted. It is hard to know how fair use will function when exported to a country that lacks that common law foundation to support the rather vague terms of the “equitable rule of reason” that we call fair use.
Many countries seem much more comfortable with the specific exceptions that make up what is often called, at least in the Commonwealth Countries, “fair dealing.” The model copyright law that eIFL has prepared for developing countries basically takes this approach, with specific exceptions for personal research, educational activities, library services, and the needs of persons with disabilities, to name only a few. All of these are tremendously important, and the advantage of having these specific exceptions is that they give a level of certainty that fair use never offers. US law, of course, has lots of specific exceptions, and I wish it included more of those suggested by the eIFL model law. Nevertheless, I still think there is an advantage to fair use. There is no other copyright exception that offers the flexibility that fair use does, especially in the face of technological change. We simply cannot know that a specific exception that works today for libraries or for researchers will still work tomorrow when the needs and services have moved to a different type of technology that may implicate an entirely different set of rights. The shift from print-based interlibrary loan to a system largely using digital copies and digital transmission, which are clearly outside of the “single-copy” parameters of the specific ILL exception in section 108, offers an example of why the decision around fair use versus specific exceptions needs to be both/and, not either/or.
For anyone interested in how fair use works, and what problems it generates, in an educational context, there is no better place to begin than with the series of blog posts by Peter Jazsi as guest blogger for the Collectanea blog at the University of Maryland University College Center for Intellectual Property, which begins with this post called “Educational fair use: a provocation.”
The World Blind Union, Amazon and the Author’s Guild — more from the eIFL conference April 9, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Technologies , add a commentOne of the most passionate and compelling speakers at the eIFL 2nd IP conference in Turkey last month was Chris Friend, who is the strategic priority leader for the World Blind Union’s Right to Read initiative and also works with Sight Saver’s International training blind leaders in Africa. A couple of private conversations with Chris and his wife Judy gave me a much-needed education on the copyright issues facing vision-impaired people and the wide array of technological solutions that could be available if the IP problems were solved. Also, our hotel room was next to that of Chris and Judy, so my wife and I were often lulled to sleep by the rhythmic sound of his text-reader. At the conference, Chris presented about the World Blind Union’s proposed treaty before the world Intellectual Property Organization “for blind, visually impaired and other reading disabled persons.”
The treaty, which is linked in a variety of formats from this page by Knowledge Ecology International, makes for interesting reading. It represents a carefully constructed effort to craft an exception to international copyright law that would make it easier for visually impaired people to find books in accessible formats. Of course, WIPO has not been very interested, until recently, in harmonizing exceptions and limitations to copyright law, only protection. But there are signs that that is changing, and the WBU proposed treaty would be a great place for WIPO to start.
The treaty includes five provisions that I want to highlight.
First, it would permit users to reproduce works into accessible formats without authorization and to distribute those formats on a non-profit basis exclusively to visually impaired persons (article 4a). Second, it would permit distribute on a for-profit basis if the work is not reasonably available in an accessible format (article 4c). Third, it provides a useful definition of what “reasonably available” means, pegged to the price of the non-accessible version of a work and distinguishing between what is reasonable in the developed world and what is reasonable in the developing world (article 4d). Next, the proposed treaty includes a provision to permit circumvention of technological protection measures when those measures would prevent the creation of accessible formats (article 6). Finally, the treaty would explicitly state that contractual provisions that are contrary to the treaty would be voided (article 7). These last two provisions are extremely important as any discussion of harmonizing limitations and exceptions gets started, and we should be grateful to the WBU for stating them so clearly and in such a compelling context.
All this took on added urgency for me this week as another group that represents visually impaired people, the National Federation for the Blind, held a protest outside the headquarters of the Author’s Guild. The protest, about which there are photos and a story here, was because of the pressure brought to bear on Amazon to disable the text-to-voice features on its Kindle 2 e-book device. As I have written earlier, the legal claim made by the Author’s Guild that Kindle was infringing their copyrights was insupportable, but nevertheless, Amazon choose to cave in rather than risk a court battle, even one it could clearly win. I find myself wondering why, if the Kindle feature is a copyright infringement, the Author’s Guild is not also opposing the text-reading software that Chris Friend was using in Istanbul; could it be something as obvious as avoiding really bad PR? Anyway, the National Federation for the Blind is now taking the Author’s Guild to task for opposing a technology that, whatever other uses it might have, would be a great boon to the visually impaired. Kindle 2 is not an ideal technology for blind people — one must still see well enough to turn pages in order to use it — but the text-to-speech function, combined with Amazon’s wide array of available e-books, would surely assist a great many people experience literature that would otherwise be unavailable to them. Copyright law should not, and as of now does not, when understood properly, stand in the way of this benefit. Neverthless, the flap over Kindle 2 helps make the point that exceptions for the blind and visually impaired must be built in to copyright law at the highest level in order to prevent self-serving misinterpretations from further burdening those who want to exercise their “right to read.”
Big victory for the public domain April 6, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, User Generated Content , add a commentSometimes big victories can happen even in small forums. On Friday a district court in Colorado — the lowest level of court in our federal system — issued a decision with big time implications. I have written several times before about the interaction of copyright law and the First Amendment protection of free speech, and in an opinion in the case of Golan v. Holder, Judge Lewis Babcock has ruled a portion of the Copyright Act unconstitutional because of a conflict with the guarantee of free speech.
The case involves a fairly technical challenge to a fairly technical provision of the law. The Uruguay Round Agreements Act (1994), purporting to implement agreements made about international IP protections at the World Trade Organization, restored copyright to foreign works that had already fallen into the public domain in the US because their copyright holders had failed to observe the formalities that the US required up until 1988. The result was that works that had previously been free for anyone to use suddenly were protected, and people who had used those works for years — like a community orchestra that played the music of Prokofiev — would be liable to infringement suits after a one-year grace period.
The challenge brought against the URAA claimed that taking back a work that had been free to use “altered the traditional contours of copyright protection” and therefore (based on some language from a Supreme Court decision in 2003) was subject to “ordinary First Amendment scrutiny.” This part of the claim was upheld at a higher level, by the Tenth Circuit Court of Appeals, in 2007. On Friday, the district court applied that First Amendment scrutiny and determined that the URAA was not narrowly tailored to achieve an important government interest and, therefore, was unconstitutional.
At least two aspects of this decision make it such a big deal. First, it is one of the first times a court has found an actual conflict between copyright protection and free speech. As I have argued before (repeating remarks made by Anthony Falzone, who was one of the lawyers for the plaintiffs in Golan), copyright, as a monopoly over expression, seems to create an obvious tension with free speech. In the past courts have said that fair use and the idea/expression dichotomy are sufficient insurance against unconstitutional suppression of speech, but now, in a fairly unusual set of circumstances, a court has found that even with those safeguards, provisions of the copyright law can go too far.
Second, this ruling makes clear that the public domain, that “commons” of material that is free for all to use and is the raw material for so much new creation, is an aspect of copyright protection itself that must be respected. If the URAA stood unchallenged, the potential for the government to revoke freedoms Americans already enjoyed in using pd expression would always exist. By affirming that the promise of the public domain is a part of the traditional contours of copyright, the court has given copyright users their first reason to cheer in a long time.
Given the importance of this case, it is certain to be appealed. As noted above, the 10th Circuit has already considered one aspect of it, so the prospects on appeal seem favorable. But the government will assuredly fight this ruling, since it will force them to rewrite a provision of the law arguably needed to conform with international agreements. There is no doubt that the law could be rewritten successfully; there are models elsewhere in the world of restored copyrights that respect the “reliance interests” of users that arose prior to restoration. As challenges proceed, however, it will be interesting to see if the argument made by plaintiffs that, in the US and because of our relatively unique First Amendment, American law cannot ever restore any copyrights after works have passed into the public domain, regardless of treaty agreements, makes any headway.
There is a discussion of this decision here, and the order from Judge Babcock is here.
