Open access for hardware? October 24, 2009
Posted by Kevin Smith in : Open Access and Institutional Repositories, Technologies , 1 comment so farJon Kuniholm may not have been an obvious choice for an Open Access Week speaker at Duke, but as the final participant in a panel on global access to health information yesterday, he made a profound impression. The panel, called “Open Access, Local Action,” was all very interesting to the 30 or so staff, students and parents who gathered to listen (it was also listed as an event for Parents’ Weekend), but I want to focus on Jon’s presentation for this post because what he had to say was mostly new to me.
Jon is a Ph.D. candidate in Biomedical Engineering at Duke and a U.S. Marine Captain (Ret.). He is also an amputee, having lost his right arm in Iraq four years ago, and is thus a researcher with a personal interest in prosthetics. He talked to us about why the money the government spends on R&D for prosthetic research does not produce the kinds of progress that it ought — the lack of coordination and such a small market that there is little incentive to move from workbench to marketplace once the research money is spent. Jon offered potential solutions for this lack of progress that addressed both his very specific research and the broader problem of intellectual property restrictions.
In the very specific area of his own work on arm prosthetics, Jon envisions a remarkable collaboration, made possible by open hardware. He would like to make the hardware being developed to improve neural control of prosthetic arms open and offer it to researchers in the video game industry. His hope is that work undertaken to create new video game controllers (an area with a much larger market and much more money to spend) will also speed the development of better artificial arms, which has been largely stalled for quite a few years.
This is a remarkable vision, I think, of a win-win collaboration that would be founded on open sharing of technological development. Openness, as some have been pointing out for quite a while, can breathe new vitality into innovation, in spite of claims from some industries that free access can only stifle and discourage it. More information about the video controller project can be found at http://openprosthetics.wikispot.org/Open_Myoelectric_Signal_Processor
Jon Kuniholm does not stop with this vision of collaboration, however. He has a concrete and well-informed notion of the mechanisms needed to bring it about. I spoke with him briefly before the event about the intellectual property issues involved with this idea. He pointed out that hardware can be shared openly from its inception because patent protection, unlike copyright, is not automatic and is, in fact, quite costly to obtain. Where copyright does cover a work, regarding plans and specifications, for example, Jon advocates using the open source GPL, or General Public License. The problem with open hardware, however, would come if another party saw profit in the hardware and filed its own patent application Since patent restricts the use of an idea, this would halt all other development based on the same hardware unless license fees were paid. Since patents in the US law are granted to the first to invent (rather than the first to file a patent application), it would be possible, but very expensive, to fight such following-on patents. Jon’s suggestion here is that the open hardware movement create mechanisms to publish what is called “prior art” — the science that leads up to new developments –in ways that will be very obvious to patent examiners. The hope is that the ready availability of prior art will prevent patents from being issued that could shut down the kind of collaborative work based on open hardware that Jon and many others both need and foster.
Technological neutrality as a rhetorical strategy October 18, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Technologies , 1 comment so farThere has been some really good attention paid recently to the issue of how our linguist choices really frame the debates about copyright law and, often, prejudge them. In his new book, William Patry (who will be speaking at Duke Law School on October 22) devotes quite a bit of space to analyzing the language of moral panics and the metaphors employed by the copyright industries to skew an honest debate. In a June 2009 article called “Why Lakoff Still Matters: Framing the Debate on Copyright Law and Digital Publishing,” Diane Gurman makes a similar plea for those who oppose the ever-expanding reach of copyright to create their own frames that would balance the rhetoric of theft and piracy.
Although it is often easy to spot the linguistic excess coming from the copyright industries, a recent letter to the Senate Judiciary Committee from the National Music Publishers Association took a more subtle, and even more dangerous, approach. There is a CNET news story about this letter here. The theme of the letter, that copyright law should be technologically neutral, seems benign enough, but the work that the music publishing industry tries to get that rhetoric to do is very troubling. The thrust of this “technological neutrality” appeal is a claim that music publishers should collect a fee for a public performance of a musical composition every time there is a digital download of a piece of music.
To call this grasp at a wholly new income stream “technological neutrality” shows amazing nerve; it is really the opposite of such neutrality. Music publishers do not collect a public performance fee when a CD is sold because there is no way to prove or assume that a public performance (as opposed to a private one, over which rights holders have no control) will take place. Why should a digital download be different?
Fred von Lohmann of the Electronic Frontier Foundation, who is quoted in the article, suggests that this is just a turf war between different rights societies over who will collect a fee and, hence, get a “cut.” He is surely right about that, as he is when he points out that copyright law has never been technologically neutral. Some exceptions (such as the section 108 library exceptions) apply only to certain technologies or treat different technologies differently. There is a special rule, after all, for digital audio tape. But pointing put the triviality of this use of “technological neutrality” may not be enough. We should notice something really pernicious that is happening behind this smokescreen.
The language of copyright neutrality has quite a bit of appeal for copyright policy makers. The fantasy of a law that adapts automatically to new innovation appeals to a legislative sense of economy. That attraction is being used, in this letter, to attempt to vastly expand the scope of the exclusive rights protected by copyright. And this is not the first time. We should remember that copyright owners do not get absolute control over their works, only control within the scope of the enumerated rights.
A single line in the CNET story really encapsulates the problem here — “composers, songwriters and publishers are asking for a guarantee that they will get paid for a public performance even if there isn’t a public performance.” In this letter, the apparently benign call for technological neutrality is being used to disguise an attempt to enlarge beyond all reason the scope of the public performance right. This is not the first effort to use that right to expand the reach of the copyright monopoly. As I wrote about here, the debacle regarding the Kindle text-to-voice feature was based on an attempt to expand “public” performance deeply into the private use of new technologies. For another example, see this report on the unsuccessful attempt recently by music publishers to collect a fee for every ring-tone “performance” of copyrighted music. So the desire to expand the reach of copyright control is well-established, what changes is the disingenuous rhetoric behind which these efforts are hidden.
Moving beyond the photo album August 27, 2009
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing, Technologies , 1 comment so farLast week G. Sayeed Choudhury, Associate Dean for Library Digital Programs at Johns Hopkins University, came to Duke to talk with the staff of the Libraries about e-scholarship and the changing role of the university library as part of our strategic planning process. His presentation and conversations were fascinating, and we were left with a great deal of thought-provoking material to consider. I was particular struck by one observation, which was actually Choudhury quoting from a 2004 article that appeared in D-Lib Magazine by Herbert Van de Sompel, Sandy Payette, John Erickson, Carl Lagoze and Simeon Warner. In the article, “Rethinking Scholarly Communications,” the authors assert their belief that “the future scholarly communications system should closely resemble — and be intertwined with — the scholarly endeavor itself, rather than being its after-thought or annex.” The article further makes the point, perhaps more obvious now that it was five years ago, that “the established scholarly communications system has not kept pace with these revolutionary changes in research practices.”
In developing this point, Choudhury talked about the traditional research article as a “snapshot” of research. Those snapshots are increasingly far-removed from the actual research process and have less and less relevance to it. Indeed, the traditional journal article seems more like a nostalgia item every day, reflecting the state of research on a particular topic as it was at some time in the past but beyond which science will have moved long before the formal article is published, thanks, in part, to the many informal ways of circulating research results long before the publication process is completed.
Choudhury called on libraries to move past a vision of themselves as merely a collection of these snapshots and become more active participants in the research process. He recounted a conversation he had with one researcher who, in focusing on the real need he felt in his own work, told Sayeed that he did not care if the library ever licensed another e-journal again, but he did need their expertise to help preserve and curate his research data. The challenge for libraries is to radically rethink how we spend our money and allocate the expertise of our staffs in ways that actually address felt needs on our campuses and do not leave us merely pasting more snapshots into a giant photo album that fewer people every day will look at.
Recently I have seen a lot of fuss over an article that appeared in the Times Higher Education supplement that posed the question “Do academic journals pose a threat to the advancement of science?” The threat that the article focuses on is the concentration of power in a very few corporate hands that control the major scientific journals. But read in the context of the radical changes that Choudhury, Van de Sompel and others are describing, it is clear that the threat being discussed is not a threat to the advancement of science but to the advancement of scientists. Scholars and researchers have already found a way around the outmoded system of scholarly communications that is represented by the scientific journal. The range of informal, digital options for disseminating research results will not merely ensure but improve the advancement of science. All that is left for the traditional publication system to impede is the promotion and tenure process of the scientists doing that research.
This, of course, is the rub, especially for libraries. Traditional scientific journals are increasingly irrelevant for the progress of science, but they remain the principal vehicle by which the productivity of scholars is measured. One researcher told Choudhury very frankly that the only reason he still cared about publishing in journals was for the sake of his annual review. Sooner or later, one hopes that universities will wake up to the tremendous inefficiency of this system, especially since the peer-reviewing on which such evaluations depend is already done in-house, by scholars paid by universities but volunteering their time to review articles for a publication process with diminishing scholarly relevance. Nevertheless, the promotion and tenure system still relies, for the time being, on these journals, which presumably cannot survive if libraries begin canceling subscriptions at an even faster rate. The economy may force such rapid cancellations, but even if it does not, pressure to move to a more active and relevant role in the research process will. The question librarians must ask themselves is whether supporting an out-dated system of evaluating scholars is a sufficient justification for the millions of dollars they spend on journal subscriptions. Even more urgently, universities need to ask if there isn’t a better, more efficient, way to evaluate the quality of the scholars and researchers they employ.
Books in the cloud July 26, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Technologies , 2commentsThere have been lots of reports flying around recently about the decision by Amazon to delete copies of two works by George Orwell (ironic, that) from the Kindle devices of folks who thought they had bought those books for once and for all time. There on reports and comments about this here, here and here. Technologically naive as I am, my first response to the story was “wow, I didn’t know they could do that.” My second response was to reconsider my growing inclination to buy a Kindle.
The really meaty issues, of course, are not whether I buy a Kindle or not, but relate to copyright issues and privacy. We are used to the idea that a copy of a book is mine to do with as I please once I have purchased a legally-made copy of it. The same is true of a CD or a DVD; I can rent, donate, destroy, lend or resell the single physical copy that embodies intellectual property because of the provision in our law called the doctrine of first sale. We know that first sale does not necessarily apply in the same way to digital files, but the Kindle cases really pushes the issue. Everything about the purchase of an e-book from Amazon looks like a sale, and consumers can easily be forgiven for thinking that they own something at the end of the process. It is probably time for a legislative look at how first sale applies in the digital world. While there have been suggestions of a “forward and delete” model for digital first sale that would allow a consumer to transfer a digital file to someone else as long as copies were not multiplied, this situation raises a more fundamental question. When can a transaction that looks like a sale be treated as a mere license, and when will consumer protection concerns step in to enforce the privileges that go with a purchase?
It is important to note that, in the case of “1984″ and “Animal Farm,” there was no question of preventing consumers from making unauthorized copies, which is the usual reason given for the assertion that first sale does not apply to the digital environment. Here, it was Amazon that was selling the unauthorized copies, and consumers were deprived of ownership by remote action, even after they had purchased the books. Why this could not be remedied by having Amazon pay the rights holder for the infringement, which would have been the solution if a publisher distributed print copies of a book without authorization from the copyright holder, is not clear to me.
One thing that several of the stories about this contretemps have in common is reference to Jonathan Zittrain’s must-read book “The Future of the Internet… and how to stop it.” It is always good for an author when he correctly predicts a technological trend, and Zittrain got this one dead-on. His warning that the Internet is moving away from the programmable devices that fostered so much innovation toward tightly-control, “tethered” appliances proves eerily prophetic when Amazon starts deleting books from consumers’ devices. It makes reading Zittrain’s discussion of all of the implications of this development that much more important.
Zittrain had an excellent op-ed piece in the New York Times on July 20, called “Lost in the Cloud,” that discusses some of the privacy and censorship issues that are inherent in the development of these Internet appliances and makes brief reference to the Kindle issue. I am happy to be able to report that Zittrain will be coming to Duke during the upcoming academic year as part of our Provost’s Lecture Series; I cannot imagine a more important discussion to have than one about the issues he is raising.
Can a “batty” ruling effect needed change? July 7, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Copyright in the Classroom, Fair Use, Technologies, User Generated Content , 3commentsIt is thoroughly unbelievable news that US District Court Judge Deborah Batts has issued a permanent injunction against the US publication of a book that purports to update the story of Holden Caufield, the protagonist of J.D. Salinger’s “The Catcher in the Rye.” The new book, written by Swedish author Fredrik Colting and already published in Britain, is called “Sixty Years Later: Coming through the Rye” and is told by a 76-year-old man called Mr. C. There is little doubt that Mr. Colting is trying to ride the continuing popularity (which I personally have never understood) of “Catcher in the Rye” by creating a sequel. But there is a great deal of doubt about whether this is a copyright infringement. The portions of the decision I have been able to read suggest that Judge Batts got all of the major copyright issues involved completely wrong.
First there was the fair use argument. In a very similar case involving a retelling of the the story of “Gone With the Wind” from the point of view of one of the slaves at Tara, the Eleventh Circuit Court of Appeal correctly recognized that the new work was a fair use of material copied from “Gone with the Wind.” And in the recent decision finding that “The Harry Potter Lexicon” was not a fair use, Judge Robert Patterson, in the same judicial district as Judge Batts, went out of his way to make clear that an author of an original work cannot control all sequels, prequels and reference works. Judge Patterson even writes, citing other precedents in the Circuit, that “a work is not derivative, however, simply because it is “based upon” the preexisting work.” (p. 39) But that erroneous conclusion is exactly the foundation of Judge Batts’ decision.
Judge Batts seems to know only one fair use precedent — the “Oh Pretty Woman” case from the Supreme Court — and she applies it slavishly. Since she does not think that the new book is an actual parody of the original, she holds that it is an infringing derivative work. But it should be clear to anyone who is a federal district court judge that there are other kinds of fair use than parody; indeed, a quick read of section 107 itself would get one that far.
The real problem, however, is that this should not have been decided as a fair use issue. In the two cases cited above, there was a substantial amount of material that was actually copied from an original into the new work. In the case of the “Wind Done Gone,” specific dialogue was reproduced, with commentary and perspective from the “new” protagonist. In the case of “Coming Through the Rye,” there seems to be no evidence of actual expression that is copied in the sequel. Judge Batts focuses her objection on the conclusion that “Holden Caufield is delineated by words” and that therefore Holden is copyrighted. But this ignores the fundamental distinction between expression, which is protected by copyright, and ideas, which are not. All ideas are delineated by words, but that does not give the ideas themselves, even the idea of a solipsistic teenager who inevitably grows up, copyright protection. Even before she reads section 107, Judge Batts needs to read section 102(b) of the Copyright Act.
Indeed, her decision is so unaccountable that its leads this commentator at TechDirt to question whether there really is an idea/expression dichotomy in copyright law at all. But that dichotomy carries a lot of weight in US law; it is frequently cited, including by the Supreme Court, as one of the basic concepts (along with fair use) that keeps copyright law from becoming an infringement of free speech. Now that Judge Batts has read the distinction out of the law (or failed to read the law at all), the conflict with free speech becomes all too apparent, when a new book can be banned in the US because an old author doesn’t like it.
So what good can come from this ridiculous decision? First, it should be, and very likely will be, overturned on appeal. But more importantly, it should prompt Congress to look again at the exclusive right, granted in copyright law, to prepare derivative works. That right has not always been part of copyright; there was a time when even abridgments and translations were held not to infringe on an original. The pendulum has now swung the other way, and we grossly overprotect some original works from legitimate reuse because we think those new creations are derivative works. As is frequently pointed out, Shakespeare could not have written his plays under today’s copyright regime in the US. It is time for clearer definition of what is and, more importantly, what is not a derivative work that is entitled to protection. If outrage over Judge Batts’ decision can prompt such clarity, some good might come from this very bad ruling.
