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.

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.

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.

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.

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.

Although I am not convinced that the two principles usually cited were ever adequate, especially as the scope of copyright’s monopoly expanded, what has clearly changed, in recent years, is that Congress adopted the Digital Millennium Copyright Act in 1998.  The DMCA added two provisions to the copyright act that have had a negative impact on free expression.

First were the legal protections provided for technological protection measures, or DRM (digital rights management) systems.  It is ironic that content owners decided to move toward technological locks because they felt that legal protections were inadequate, and then found they needed legal protection for those locks when they proved insecure.  But the combination of digital locks and “anti-circumvention” rules has been devastating for free speech; even use of public domain works can now be locked up, and the law will prevent access.

Lest we forget the power of DRM, here is a note about the Motion Picture Association of America “reminding” a court that it is illegal to circumvent DRM systems even for a use of the material that would be perfectly legal.  So when digital locks are used, one of the safeguards our courts have relied on to preserve free speech — fair use — is apparently useless.  As the EFF attorney mentioned in a blog post linked above says, it is by no means certain that fair use is entirely trumped by DRM, but there is a case that held that, and the content owners certainly believe that fair use is now obsolete.

An extensive study done by Patricia Akester, a researcher with the Centre for Intellectual Property and Information Law at Cambridge University, lends weight to that argument that what she calls “privileged uses” (like fair dealing in the UK and fair use in the US) are adversely impacted by DRM systems.  There is a report of her study here, and the full text (over 200 pages!) is here.  Akester may have done the first empirical study of these adverse effects, and her conclusions are sufficiently gloomy to lead her to suggest a legislative solution.  She proposes that a “DRM Deposit System” be established where content owners are required to deposit either the key to their lock or an unencrypted copy of the work.  Then a user could make an argument or meet a set of requirements for access when their proposed use was clearly within a privilege.  If the content owner declined to deposit with the system, circumvention for access for privilege uses would be allowed.  Some such system, similar to the “reverse notice and takedown” proposal discussed here over a year ago, is clearly needed if fair use is to continue to function as a safeguard of free speech.

The other provision of the DMCA that imperils free expression is the notice and takedown procedure itself, which was created to protect Internet service providers (ISPs) from liability for infringing activity that happened over their networks.  In one sense, this “safe harbor” has been good for fair use, allowing the creation of user generated content sites like Flickr and YouTube where lots of fair use experimentation can take place.  But that take down procedure is being abused, with bogus notices being sent to prevent legitimate and even socially necessary criticism and parody.  ISPs are quick to takedown sites that are named in these takedown notices, and the process for getting them restored subjects the original poster to an increased risk of liability.  It is very costly, after all, to defend free speech even against a bogus claim.  So abusive takedown notices have now become a favored way to suppress criticism and comment that is unpopular with a major company or content owner.  The long tradition of “I Hate BigCo, Inc., and here is why” web site, which courts have often held to be fair use of copyrighted and trademarked content, is now much riskier than it was before.  In fact, the Electronic Frontier Foundation has even created these six steps to safegaurd a gripe or parody site, recognizing that free speech is not longer sufficiently protected by traditional provisions within the copyright law alone.

So I was rather pleased to find an exception — actually a series of exceptions– to this over-enforcement in a recent case out of the federal district court in the northern district of Texas.  While this line of cases does not accomplish what I have wished for, a ruling that copyright law and its exceptions should preempt non-negotiable contracts, they do show that, in some circumstances, courts will reject a clickwrap agreement when the seller takes too much advantage of its powerful position.

Cathryn Harris agreed to a clickwrap license when she signed up for a particular online program run by Blockbuster.  Such licenses, of course, condition service or access on agreeing to a set of terms that is wholly non-negotiable; all the user can do is click “I Accept” or forgo the service entirely.  I have complained about enforcement of a similar licenses in the Turnitin case by a court in Virginia, where the students were compelled by their school to sign up with Turnitin.  In this case, when a dispute arose and Ms. Harris filed suit against Blockbuster, the company tried to enforce the clause in the clickwrap licenses that sends all disputes to arbitration (which is much less expensive).  Ms. Harris opposed the motion to compel arbitration, and the Texas court sided with her, ruling that the entire agreement, including the arbitration provision, was invalid.

The reason the court rejected the license was that it contained a provision saying the Blockbuster could change the terms of the agreement at any time, without notice.  Such provisions are not uncommon in clickwrap licenses, because the nature of the agreement makes it impossible for the seller to contact everyone who agrees to the terms of use.  But here the court said that such a clause makes the contract “illusory.”  Contracts, after all, are an exchange of promises, and a one-sided, “we can change the terms anytime” clause really means that the side that drafted the agreement has not made any promise at all that it is bound to stick to.  When an apparent promise really is just statement of discretion — “I will pay you $20 to wash my car if I decide it was worth it” — courts call those contracts illusory because there is no real exchange of promises.

As this analysis of the case shows, there have been several cases in which such clauses allowing one-sdied changes have caused a clickwrap agreement to be found illusory.  It is interesting that they are all about arbitration.  I suspect this is because arbitration is something that must be based on mutual agreement, and courts are reluctant to limit a person’s access to the legal system based on a promise they could not undertake voluntarily.

For the purposes of our concerns here, this case is a small indication that clickwrap licenses must be drafted carefully, and that the fact that users seldom read such agreements is not an excuse to overreach too far.  When the issue is important enough, a court will occasionally void a one-sided agreement rather than enforce terms that put one party at too great a disadvantage.  Perhaps we will soon see such a willingness to reexamine clickwrap agreements when the disadvantage caused is a loss of those user rights that Congress so clearly intended when it drafted the copyright law.

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.”

In a widely-ridiculed public pronouncement, a spokesman for the Author’s Guild has denounced the audio feature of Kindle as an infringement of copyright, even though the e-books sold by Amazon are, of course, licensed from the publisher.  He is quoted as saying the “they,” meaning consumers, “don’t have the right to read a book out loud… That’s an audio right, which is derivative under copyright law.”  This led many to trot out a parade of horrible consequences, suggesting that parents might be sued by the Author’s Guild for reading”Goodnight, Moon” to their children.  So the President of the Author Guild took to the New York Times Op-Ed page to explain that that was not their intention. Unfortunately, his piece does not really explain what the claim really is.  He merely says that the Guild collects separate royalties for audio books and for e-books and that Kindle would “swindle” authors out of that double fee.  From a copyright perspective, it is interesting to try and sort out what infringement, if any, is involved in this “swindle.”

One way to look at this, of course, is as a simple contract dispute, and contract provisions are probably the way to settle this.  Authors and publishers can simply charge Amazon more for the e-book license to compensate for the potential decline in audio book sales when those e-books are “read” by Kindle.  Other e-book platforms would pay a lower price if they do not provide a text-to-speech function, and both sides could monitor to see if audio book sales really do decline.  For e-books already licensed to Amazon, the Author’s Guild could try to claim that this feature of Kindle 2 breaches the license terms, and try to demand additional money.  The public spat is likely an attempt to force such renegotiation.

But it is more interesting to ask if any copyrights are being infringed.  When a parent reads to a child, this is a private performance of a work that does not infringe any of the rights under copyright.  It is very important to remember that the performance right in copyright is only an exclusive right to authorize or deny PUBLIC performances, defined as a performance “at a place open to the public or at any place where a substantial number of persons outside of a normal circle of family and its social acquaintances is gathered.”  Based on this definition, it is unlikely that Kindle would ever infringe the public performance right under ordinary use.

This distinction of performances is undoubtedly why the Author’s Guild spokesman spoke of a derivative right.  Now he was simply wrong to refer to an “audio right” which is “derivative under copyright law.”  There is no separate “audio right,” there is only the public performance right discussed above and another exclusive right over the preparation of “derivative works.”  So a lot turns on whether an audio reading of a text can be called a derivative work.

It is generally thought that a derivative work must itself be an original work of creative authorship.  So a translation of an English text into Hindi involves new creative expression, as does the creation of a film from a novel; these are classic examples of deriviative works, and each involves the reuse of protected expression in combination with new creative authorship.  So a translator or a filmmaker must get a license from the original author to create these works, in which there is subsequently two (at least) copyright interests.  But an audio reading adds no creative expression, so it is hard to see how it is a derivative work. In this fascinating article, Julian Sanchez analyzes this argument very nicely, and suggests an exception — an abridgment has been held to be a derivative work, and it does not contain original expression that is added to the original.  I think there are historical reasons for this, but I will let Sanchez explain the ins and outs of this debate to those who are interested.

What I want to add to this discussion is an additional argument for why an audio reading should not be considered a derivative work.  There is a long standing rule of statutory interpretation that instructs court to read laws in wasy which do not make parts of the language used by legislatures irrelevant; we do not want interpretations that make whole portions of a law redundant or unnecessary, since we assume legislatures did not intend those readings.  If an audio reading is interpreted as a derivative work, we would have just such a reading, because that interpretation would make the public performance right “mere surplusage.” Why would Congress include a specific right over performance, and limit that exclusive control to public performances, if ALL audio readings were derivative works and therefore subject to the authors control based on a different exclusive right.  Audio readings are not derivative works because, unlike abridgments, they are subject to a different right, and we must assume that Congress intended that right (public performance) to circumscribe the control an author should have over readings of his or her work.

POSTSCRIPT — In the interval between writing this post and publishing it, the news has come out that Amazon has agreed to make changes to the Kindle.  I am afraid this merely reflects on the chilling effect of a lawsuit threat; it does not change the legal analysis, which suggests that the Author’s Guild won by making a very weak claim, but making it loudly.

Steven Seidenberg, who is described as a lawyer and freelance journalist, has done an enviable job of describing complex issues in a readable and even enjoyable way.  I recommend the article for anyone interested in how the law struggles to keep up with rapid and dramatic changes in technology.  The analogy between trying to police user generated content and playing “whac-a-mole” is just right.  But apart from its general quality and usefulness, there are two points made in this article that I want to highlight.

First, it is fascinating to see the suggestion made by Seidenberg that the Digital Millennium Copyright Act, which was passed in 1998 and took effect in 200, may already be out-of-date.  I have often remarked about the difficulty of applying a copyright law written for the photocopier to the Internet age; Seidenberg goes a step further by noting that even the DMCA was written for a simpler set of Internet technologies — bulletin boards and Usenet groups — and may not be able to account for the huge popularity of user generated content that is now born on the Internet.  Seidenberg’s neat summary and comparison of two court cases dealing with UGC — the as-yet-undecided case of Viacom v. YouTube and a less well-publicized decision involving Veoh Networks — explains the interplay of laws and the uncertainty of results in this environment.

The second point that seems significant to me is the complaint sometimes heard about the DMCA and the ruling in the dancing baby case that it has created too great a burden on the content companies for them to have to evaluate the possibility of fair use before they send a takedown notice.  Although I understand the argument that a business needs to streamline those processes that merely protect profits and do not generate them, it is hard to be too sympathetic when, in the higher education environment, we are called on to make many decisions about fair use every day, usually without recourse to a stable of lawyers.  The law of fair use is intentionally, and I think correctly, open-ended and flexible; it does not lend itself to streamlined or automated processes precisely so that it can remain useful as new innovations and technologies come along.  The burden of having to make individual fair use decisions is shared by users and content creators alike; it may not be efficient, but in the end the social benefit of doing things this way clearly outweigh the costs.

The last part of Seidenberg’s article addresses this general point as it discusses attempts to convince Congress to shift more of the burden for copyright enforcement off of the big content companies.  If they have not yet been successful in getting courts to force Internet providers like YouTube to police copyright for them, legislative efforts like the PRO-IP act to get the government more involved protecting these private rights have born more fruit.  Whether taxpayer-funded enforcement of private copyrights will ultimately squelch the growth of user generated content is an open question, and it is one that may play a huge role in defining the future for creativity and innovation.