The Copyright Office notice details a interim rule that makes an interesting change in Office policy.  Essentially, the Office is now giving itself the right to ask for mandatory deposit of a certain class of online-only publications.  Deposit is mandatory for all published works, although failure to comply with this rule does not impact the availability of copyright protection itself.  But until now the Office has exempted online-only publications and, indeed, has not taken a position on whether or not such works are actually “published.”  In this notice they do acknowledge, based on several court rulings, that online material is published, and they extend the mandatory deposit requirement to a circumscribed class of online-only works — essentially formal periodicals that are published online without a print equivalent.  The requirement of deposit is not automatic even for these works; it will be triggered only if the Copyright Office makes a demand.  And the notice is careful to exclude things like blog posts, although this blogger wonders how successful that effort really is.

For me the real humor in this dry Federal Register notice concerns the issue of Digital Rights Management, or DRM — the technological protections used by many rights holders to control access to their works.  Such protection measures are fiercely protected by the copyright law itself; the Digital Millennium Copyright Act added provisions that make it illegal to circumvent these electronic locks even for otherwise legal purposes.  Some courts have even held, in spite of plain language in the statute, that fair use of a work can be prevented if the user would have to break though a digital lock.

So the irony that made me laugh out loud was the discovery that the Copyright Office will require that DRM be removed from the copy of an online publication that is deposited subject to this new rule.  Why?  Because “copies of works submitted to the Copyright Office under this interim rule must be accessible to the Office, the Library, and the Library’s users.”  In order to insure this accessibility, the interim rule makes part of  the definition of the “best edition” that must be deposited the criterion that “technological measures that control access to or use of the work should be removed” (see page 3867 of the Register, column 3, for these quotes).

As if to soften the blow to publishers from this rule, the Copyright Office goes on to detail the special security measures that will be taken regarding use of these deposited copies.  Users will have to be in a Library of Congress facility, and only two users at a time will be given access, over a secure network.  Yet the notice goes on to say that “Authorized users may print from electronic works to the extent allowed by the fair use provisions of the copyright law . . . as is the case with traditional publications.”

Here is the problem.  DRM systems prevent users from exercising their rights under the Copyright law; we often cannot print from DRM-protected works even “to the extent allowed by law.”  If we disable technological protections to do so, we may be subject to draconian penalties.  No other library in the world has the power to exempt its users from these burdens.  The Library of Congress seems to recognize the unfair restriction placed on users by DRM and is using its unique position to mitigate that problem.  But what about the rest of us?

Of course, the Library of Congress does have the authority to relieve the rest of us of some of the burden created by the anti-circumvention rules.  The Library is given rule-making authority by the DMCA to declare exceptions to these rules.  Unfortunately, when the new exceptions were due in late 2009, the Library punted, issuing an indefinite extension of the old, inadequate exceptions and promising new rules in “no more than a few weeks.”  The new exceptions have still not been announced, three months later.  With the Library’s clear recognition in last week’s rule that DRM protected works are not acceptable to meet the needs of library users, we can only hope that these long-delayed exceptions, when announced, will recognize the widespread harm done by DRM and will declare broad exceptions  — like the one the Library has given itself — to help the rest of us.

The full citation for the article is:  Kevin L. Smith, “Copyright Renewal for Libraries: Seven Steps Toward a User-friendly Law,” portal: Libraries and the Academy, Volume 10, Number 1, January 2010, pp. 5-27.

The published version is available on Project Muse at http://muse.jhu.edu/journals/portal_libraries_and_the_academy/summary/v010/10.1.smith.html

If you cannot access Project Muse, this is the link to the DukeSpace version, which is my final manuscript but lacks the formatting and copy editing done by the good folks who publish portal:

http://hdl.handle.net/10161/1702

As I said in the original post linked to above, I hope my suggestions will be read in combination with those made by Professor Jessica Litman in her wonderful article on “Real Copyright Reform.”

I had intended to end this post with the information above, but a recent discovery has caused me to change that plan.  Late last week I discovered that a small error, an extra clause made up of words from elsewhere in the sentence, was inserted into the HTML version of the article.  It does not appear in my manuscript, nor in the PDF of the published article, only in the HTML version.  I contacted the editorial folks at portal and expect that the error will be fixed shortly, perhaps even before I publish this post (Note on 2/2 — the error has been corrected).  But it does raise some questions about some of the assertions made on behalf of traditional publication.

First, we are often told that copy editing adds value to an article and that publishers deserve compensation for adding that value whenever the public is given access to the final published version of an article.  On the compensation issue I shall write more later.  But here I want to note that the editorial process can insert errors as well as eliminate them.  I found the editorial assistance from portal to be superb, but, in spite of their best efforts, the multiple stages of the publication process are not all within their control.  The result was that a error that I was not responsible for, albeit a minor one, found its way into my work.

Second, this small incident raises questions about the assertion that publishers provide the scholarly community with the “version of record” that assures consistent quality.  In fact, there are two different versions of my article available at this moment (on 2/1) on the Project Muse site for this journal — the HTML is different from the PDF in at least this one respect.  So which is the version of record?  To make that determination, I am the final arbitrator, and I hope that the error I caught in the HTML will be corrected based on my request.

This suggests that there is at least an argument that the “version of record” should be the one that is closest to the author’s hand.  Who else has a greater incentive to insure accuracy, after all?  A serious error may impact the publisher’s reputation to some degree, but it can be devastating to that of the author.  And I would certainly hope that a significant error, such as an incorrect calculation or formula, would never be “corrected” by a copy editor without first consulting the author; it is easy to imagine cases where what looks like an error — a deviation from the expected — is in fact the heart of the argument.  Thus significant corrections should always be made with input from the author, and the author would then be free to correct any versions she has made available to the public.  So I would like to see discussions of “version of record” include the likelihood that the version nearest to the author may, at least sometimes, be the most accurate version available.

The story contains some chilling rhetoric from the representative of the Association for Information and Media Equipment – intentional, I am sure – about their plans to investigate and threaten other colleges and universities that are doing the same thing.  Many schools, of course, have explored these options because the pressure from faculty and students to provide greater digital access to our film collections is intense.  Some have concluded that the legal risk is too great and are resisting that pressure, at least for now.  Others have tried various justifications, clearly hoping to “fly under the radar.”  This story will certainly strike fear into many, and will give more ammunition to faculty members who complain that copyright law prevents them from teaching effectively in the media-saturated world of 21^st Century America.

In response to the story, I want to suggest here what the major alternatives for legal streaming of digital video might be and the problems inherent in each alternative.  I know from conversations with colleagues that each of these strategies is being tried somewhere.

The first, and most obvious, possibility is to rely on the TEACH Act, which amended one of the Section 110 exceptions to the public performance right in copyright in order to allow “transmissions” of certain performances for distance education.  TEACH (or Section 110(2)) has a lot of specific requirements that must be met (see this TEACH ACT toolkit from NC State University), although many of those requirements would appear to be satisfied when digital video is streamed through a closed-access course management system.  The real problem with relying on TEACH is the portion limits it imposes; it permits transmission of entire “non-dramatic musical and literary works” and “reasonable and limited portions” of other audio-visual works. This second provision seems to apply to films and to disallow the transmission of entire films.  Some institutions would argue, I think, that an entire film is often the only “reasonable” portion to use for a particular teaching purpose, but that argument ignores the word “limited.” The point about a reasonable portion is well-taken, in my opinion, but only proves that TEACH was never an adequate solution to this problem.

Other institutions could assert fair use as the justification for streaming digital video.  These schools would point out, I imagine, that courts have often held that the use of an entire work can be a fair use, based on the overall balancing of the fair use factors and the totality of circumstances.  The trade group clearly disagrees, although the comments about fair use in the article are not really on target.  It is correct that password-protection alone is not enough to guarantee fair use, but it does strengthen the university’s position in the complete analysis of the factors.  Simply to say that a password does not make something fair use is as incomplete as asserting that an educational purpose always means a use is fair; both assertions miss the need for a complete examination and balancing of the factors.

The problem I see for a fair use justification is that courts would be likely, in my opinion, to look at the portion limits in the TEACH Act and say that that legislation was Congress’ opportunity to provide guidance on educational transmissions, and it selected a limited standard.  A court that took that approach would be unlikely to let a school “shoehorn” the entire film in under fair use, simply in order to avoid the inconvenient limits imposed by TEACH.  But I have to add that there is no agreement on this point — even the intern in my office this year, who is also a lawyer, disagrees with me — and some universities clearly have decided to rely on fair use to stream entire videos.

Perhaps the most interesting argument, however, is the one that UCLA seems to be making, according to the article, based on the performance exception that proceeds TEACH in Section 110 and permits performances in face-to-face teaching situations.  Section 110(1) is clearly meant to have some “give” in it, since it refers to “teaching situations” rather than classes and to “classroom[s] or similar place[s] devoted to instruction [emphasis mine].”  UCLA seems to want to stretch these terms to include the course Web site as part of the face-to-face instruction.  I know of other institutions, less bold than UCLA, perhaps, but still unwilling to accept unworkable limitations, that read 110(1) to permit streaming to designated sites like language labs, but not to course sites that can be accessed from anywhere.  These efforts to clarify the fuzzy boundaries of 110(1) are fascinating and seem to invite a court to step in and clarify; it is just that no one wants to be the defendant in that case if they can help it.  While I admit to lingering doubts, this last approach seems to me to be the most surprising, yet most promising, of the three.

There is still another obstacle, however, posed by the anti-circumvention rules added to copyright law by the Digital Millennium Copyright Act.  This provision prevents the circumvention of technological protection measures even, in some cases, when the purpose of the use would be permitted.  So ripping a DVD protected with CSS (Content Scramble System) may violate these rules even if it is otherwise legal.  The DMCA specifically stated that these rules should not inhibit fair use, but courts have been inconsistent about that provision in circumvention cases.

Also, the Library of Congress is charged with declaring categories of exceptions to anti-circumvention in a rulemaking process every three years.  New rules, which are desperately needed, were due in October 2009 but the Library punted, extending the old rules while giving itself unlimited time to try and craft new ones.  The situation is getting worse on university campuses and we have to ask when the Library of Congress is going to clarify the situation.

In the end, I agree with Tracy Mitrano from Cornell, quoted in the article, that this is one more place where copyright law is not up to the technological challenges posed in higher education today.  The need for revision “before [the law] does any more damage” is clear.  We can only hope that the educational media industry will eventually come to understand this (they are supposed to be educational, after all) and move away from threats and towards real dialogue.

There are some excellent discussions of what went on at this year’s conference, especially here and here on Dorothea Salo’s blog.  Those with a real passion for more information can check out this growing list of blog posts about the conference.  I won’t try to compete with these comprehensive recaps, especially because my selection of events to attend was rather idiosyncratic, and perhaps even ill-advised.  But I do want to make three quick observations about what I personally learned from the conference.

First, I discovered one more argument for open science that had not occurred to me before, but has the potential to be very compelling for scientists on our faculties.  One reason academic research should be online is that “junk” science is already there.  If the general public — including the proportion thereof who vote or require health care — do not make good decisions in regard to matters involving scientific knowledge, we can only blame ourselves when the best research is not available to them, hidden behind pay walls.

Second, I was fascinated to discover that health science bloggers have developed a code of ethics to try and account for the many issues that arise when scientists put important and potentially life-altering information onto the open web.  The benefits of this openness are indisputable, but so are some of the risks.  This code of ethics represents an attempt to address some of those risks and minimize them (there is a somewhat different discussion of a similar issue from the conference here).  The criteria applied to evaluate health care blogs (see the text of the code itself) — clear representation of perspective, confidentiality, commercial disclosure, reliability of information and courtesy — encapsulate standards that all of us who try to share information and opinion online need to be aware of.

Third, I was amazed at how important, and problematic, copyright issues were to this group.  I attended seven sessions at the conference, and five of them dealt with copyright as a major (although often unannounced) topic of discussion.  Even recognizing my tendency to gravitate toward such sessions, this is a high percentage.  I asked a fellow attendee why so many sessions raised copyright and was told, albeit with tongue in cheek, that it is “ruining our lives.”  More seriously, one scientist described trying to put his classroom lecture slides online and being told by his university’s counsel that all material that he did not create had to be removed first.  Apparently there was no discussion of the applicability of fair use and how to decide what was and was not allowable; just a wholesale rule that would discourage most scientists interested in sharing.  This suggested to me that it really is very important to improve the quality of copyright education on campus — for faculty, librarians (who are often the ones asked for advice) and even legal counsel.  We cannot reasonably advocate more online open access unless we also give our scholars the resources to accomplish that goal.  In many ways the technological infrastructure is becoming trivial and it is the policy and legal questions that must be addressed directly if we really want encourage openness.

First, the subject of a photograph does not have a copyright claim in the picture.  As the post linked to above points out, this has some counter-intuitive results.  One of the best photos of my wife and I together taken in recent years was snapped by a stranger we met in Istanbul who asked me to take a picture of he and his new bride and then returned the favor.  Oddly, he has a copyright claim in photo on my wife and I while I would have a claim in the picture of him, on his camera.  This is a result of the automatic nature of copyright protection, which showers down on a creator as he or she creates.  No such right in copyright accrues to the person whose picture is taken.  In the case of Ms. Hudgens, who is suing for copyright infringement, the ability to make that claim depends on the asserted fact that she took the photos herself, using a cellphone camera.  Were they taken by another person, Ms. Hudgens would not have any copyright claim.

This brings us to the need to distinguish copyrights, which are granted and enforced by federal law, from a right of publicity, which is a state law claim.  Merely as the subject of these photos, Hudgens might still have a claim that her right of publicity has been infringed, even if she had no copyright claim.  There could be a dispute about whether posting these pictures to a website was a commercial use, which is usually necessary to trigger the right of publicity, but I suspect that the website sells advertising and expected the photos to drive up both hits and revenues.  So posting the pictures might well have been the kind of use that would violate Vanessa’s right to control commercial use of her image (as well as other privacy rights, perhaps).

This need to distinguish between the owner of a copyright interest in a photograph (the photographer) and the owner of the publicity right (usually the subject) is the first lesson we can tease out of this case.

There are other ways a subject might get a copyright interest in a photograph, by the way.  First, the photo might be a work made for hire.  In that case, the employer owns the copyright from the start, and the employer might well also be the subject of the photo.  But just paying for a photograph does not make it a work for hire; the photographer must either be a regular employee of the employer/subject or an independent contractor who explicitly agrees in writing that the work will be a work for hire.  Alternatively, the photo might be a derivative work based on a copyrighted work that is part of its subject.  Suppose an artist poses in front of one of her paintings, or that Vanessa Hudgens had been wearing a dress she had designed herself (clearly counter-factual).  In those cases, the subject would have a copyright interest in the photo because of the derivative representation of an original work.

Finally, we can also take from this case a reminder about the role of registration in copyright protection.  The blog post notes that it is “odd” that these photos are registered with the Copyright Office if they really were private self-portraits, as claimed.  Not really.  We should remember that registration is not required for protection — copyright is bestowed automatically as soon as the pictures were snapped — but it is required to bring an infringement action into court.  Thus it is perfectly possible to hold a copyright, have it infringed, then go and register that right before bringing a lawsuit.  In fact, a quick review of the Copyright Office’s records suggests that this was the case here, since the registration data of the photos is October 2009.  If one follows that sequence of events, the range of damages is limited, since statutory damages are not available.  I suppose, however, that if copyright was registered before the infringement took place (and thus statutory damages are sought), one might well doubt the assertion that the photos were intended to be private.

The most recent case involved a challenge to a “choice of forum” clause contained in the EULA for a site called ServiceMagic.  A lawsuit by Victoria Major was dismissed because it was filed in Missouri while the EULA says that all lawsuits must be filed in Colorado.  The Missouri Court of Appeals upheld the dismissal, even though Ms. Major never read the EULA nor was forced to see it and click “I Accept.”  The court held, as have several others in recent years, that the link was placed prominently enough for the terms to be enforced, even though there was no technological requirement to actually click through the license.  Some details about the case can be found here, on ArsTechnica.

The was an uproar several years ago about a proposed change in the Uniform Commercial Code called UCITA (the Uniform Computer Information Transactions Act) that would have made it too easy, its opponents felt, for consumers to commit themselves to licensing terms about which they had no knowledge and no chance to negotiate.  UCITA was adopted only in Maryland and Virginia, and it has since been withdrawn by its sponsors.  But the goal of UCITA to speed up Internet commerce by simplifying licensing, even at the cost of consumer protection, is being accomplished by courts around the country anyway.  This latest case is one in a line of similar cases that make it even more imperative that users look for and read licensing agreements, even if the site itself does not force them to do so.

There are a couple of caveats to this trend.  First, it is not universal.  A similar case against online retailer Overstock, reported here, went the other way, apparently because the link to the terms was not sufficiently prominent.  And in the ServiceMagic case one judge on the appeals court wrote that she would only uphold reasonable and expected terms like choice of forum, not terms that were “unconscionable.”  So perhaps we can expect a more active review of licensing terms when the licenses is merely a “clickwrap” or “browsewrap.”  Nevertheless, the most important caveat raised by these cases may also be the oldest — “caveat emptor.”

January 1 is traditionally Public Domain Day, in addition to being a day for parades,  bowl games and hangovers.  That is because most copyright laws stipulate that all copyrights the term of which would expire throughout a particular year actually expire on Dec. 31.  Thus, on January 1, lots of works should enter the public domain.  In Europe, January 1, 2010 sees free public access to the poetry of William Butler Yeats and the works of Sigmund Freud.  But here in the U.S., the gerrymandering of our law over the past decades has resulting in almost no new works in our public domain.

There is a great web page on Public Domain Day 2010 here, from the Center for the Study of the Public Domain at Duke’s Law School.

I am particularly struck by the quote on the CSPD page that reminds us that we are the first generation of Americans to deny ourselves access to our own culture.  Almost nothing created in our lifetime will be available to support new creation and innovation by us.  If we are not vigilant, these works will be denied to our children and grandchildren as well.  Nothing except some unpublished works will enter the US public domain through expiration of the copyright term until 2019, and possibly later than that, if the term is extended retroactively again.

These reflections demonstrate very clearly that copyright protection really is, as Lord Macauley said many years ago, a tax on the public.  We continue to pay higher prices for works by Yeats, Freud and thousands of others because copyright prevents free market forces from operating.  We must seek permission, often from descendants who do not know nor care about the control they hold, to make new works based on old.  All these costs are imposed on us by the government, which grants the copyright monopoly ostensibly for the benefit of authors.  But there is no sign that the descendants of Freud or Yeats are benefiting from this absurdly long protection in the US.  Only intermediaries continue to make money, because they do not have to compete in a free market but can charge the public monopoly prices.

Perhaps when the next proposal to extend copyright’s term comes before Congress, we can be intentional about labeling it what it really is — a tax that benefits private interests at the expense of the public.  If its impact was clearly understood, it would be much harder for Legislators to vote for the copyright tax.

Flat World Knowledge is essentially a publisher, founded in 2007 and currently focused on the market for “big” textbooks — the ones that cost students an arm and a leg and are issued in a new edition every other year to undercut second-hand resales.  Flat World, in contrast, is publishing their textbooks online, entirely open and free.  The books are licensed under a Creative Commons license.  Like other publishers, Flat World organizes peer-review for the books it publishes and provides copy editing and design services.  So two issues come to mind immediately — how do they make money, and what is in it for faculty who might write or adopt a Flat World textbook.  It is the answers to these questions that really make Flat World such an exciting venture.

First, although students can get free access to their online textbooks (through course-specific URL; more about this in a minute), they also can buy the textbook in several different formats (print, audio and self-print PDF, according to the “How it works” page).  According to Mr. Shelstad, about 50% of students currently opt to purchase a book that has been adopted for their course (at 29.95 for a print-on-demand copy), and Flat World plans to increase that percentage as they add new or improved formats.  Shelstad mentioned formats for hand-held devices, for example, and it seems exciting to me just to know that a textbook publisher is thinking this way.

For faculty who publish textbooks with Flat World, there is an opportunity to earn royalties on every dollar that is spent on their book, as well as the chance to continually update and correct the text.  These authors have a level of continuing control over their work that is unprecedented in the print world.

A unique level of control is also the principal advantage that faculty who adopt a Flat World textbook gain, since they are able to adapt a book for the specific needs of a course they are teaching.  Currently, adopting faculty can move sections of a book around with up / down / delete controls and annotate any portion.   Tools to insert materials and to edit at the word level are in development.  Once a faculty member has adapted and adopted a specific textbook, that version is saved and a course specific URL is created so that students in the class will see exactly the book that has been created, in a collaborative way, for their use.

I was especially interested in how these two different control points — that of the author and that of the adopting instructor — might relate.  I was delighted to hear that the adapted version will be separate from the original, using this system of unique URLs, and that all changes in the adapted texts will be indicated.  This seems to me to be a very sensible way to preserve the integrity of the original authored work while still permitting adaptation for a particular need.

Flat World is showing signs of being a genuinely transformative model for higher education.  They currently have 11 textbooks in their catalog, with 10 more to be added in the coming months.  Even with that relatively modest catalog, there are already over 500 course adoptions and more than 40,000 students using Flat World books.  The staff at Flat World is working on new ways to adapt the books, such as pulling in images, PowerPoint, etc.  It was heartening to hear that one of the reasons roll-out of these features is slow is that Flat World does not want to compromise the high standard they have for design of their books too radically.

Overall this is an exciting model that helps us look forward to the genuinely new ways technology can facilitate classroom and online education.  Just after our phone conversation,  this new announcement came out about Flat World’s partnership with Bookshare that will make textbooks available to people with print disabilities, highlighting yet another possibility for this adaptive technology.

I have to say first that I dislike the reference to “e-book” rights because there is no distinct right to publish an e-book.  There are specific exclusive rights within copyright to publicly perform a work and to prepare a derivative work, both of which are important in allowing the creation and distribution of an e-book based on a published novel.  But “e-book rights” is a misnomer; at best a short-hand reference to a set of the enumerated rights in copyright that are involved in e-books.  In the contract dispute between Random House and Styron’s estate, the issue will be the scope of the assignment of these various exclusive rights, not the simple question of who got the “e-book” right since, as the family points out, e-books were unheard of when Styron published his novels and the profoundly moving “Darkness Visible.”

This brief item explains that the actual issue in this case is what “in book form” means in the publications contracts Styron agreed to.

The larger significance of this issue involves e-book versions of much of the great literature of the 20th century.  The length of copyright protection imposed on this cultural heritage is usually justified as providing an incentive for writers to write, artist to paint and filmmakers to “shoot.”  If, as Random House claims in the Styron case, however, the right to exploit new technologies as they develop is encompassed in the original publication contract, this incentive seems even more tenuous than it would ordinarily.  Even if we assume that Styron was more likely to write because he knew his children and grandchildren could continue to profit from his books than he would have been if copyright term was shorter, Random House’s claim that his original publication contract transferred the right to profit from new forms of distribution seems to reduce that putative incentive.  Presumably the family will have less control over the e-book created by Random House than one for which they contract directly (as they want to do), and it seems quite likely that they will profit less, if at all, from a version sold by Random House.

If copyright is really an author’s right, as publishing intermediaries like to claim when they want Congress to enact  stronger protections, should not the right to decide when and how to exploit new opportunities, not considered at the time of an original transfer, remain with the author or the author’s family?  In short,  publication contracts in copyright should be read narrowly to preserve the incentive for authors and others  to create which is the alleged purpose of the law.

This recent article by Professor Rebecca Tushnet about “Economics of Desire: Fair Use and Marketplace Assumptions” considers the incentive structure of copyright in some detail, based on the recognition that many creators create out of desire, or even compulsion, rather than a direct expectation of the money to be made for them or their heirs.  She argues persuasively that the economic incentives that the copyright monopoly creates “largely bypass[es] a persuasive account of creativity.”  Her conclusion that “Copyright law, and general cultural policy, could do more to direct material rewards to authors if we truly believe that monetary incentives will spur creativity” seems to directly address the Styron e-book dispute.  If we are serious about copyright incentives, she suggests, “we need to keep a close eye on which entities are benefiting material from all these new works.”  This is precisely the case with e-books and the literature of the 20th century; disputes like this raise real questions about how genuine our commitment to copyright as an incentive for creativity really is.

The Electronic Frontier Foundation has provided a nice primer on on-line agreements in this document called “The Clicks the Bind: Ways Users “Agree to Online Terms of Service.”  This is a long blog post or, in PDF, a three page document that should be read by everyone who uses the Internet.  It helpfully distinguishes major types of online agreements and the relative likelihood that the different forms result in binding contracts.  The document, by EFF’s Ed Bayley makes two programmatic assertions, both of which seem unarguable.

First, users should have to take an affirmative step to agree to terms of service.  Put another way, terms of service that are there if you want to look at them but do not require even that thoughtless click should not be enforceable.

Second, Bayley asserts that terms of service from online service providers should be publicly available, not just presented as a pop-up as one enters the site for the first time.  This would allow public discussion, which is important if people are to get past the habit of clicking without reflection on “I Accept” and come to some awareness of what they are agreeing to.  Even when TOS are publicly available, they are not very easy to understand.  Over a year ago, I printed out the TOS for Flickr just as an example and found that, at that time, they ran to over 12 pages of printed legelese.  A repeat of that experiment shows that they are shorter now — “only” 10 pages.  And to Flickr’s credit, they are available to anyone who wants to see in advance what they are getting into.

Bayley’s short essay is vital information, and the suggestions he makes seem like minimum steps that must be observed if courts are really going to hold individual users to the extensive and complex clauses found in these online terms of service.