The bill is a direct response to the NIH Public Access Policy; it would prohibit any policy requiring a copyright transfer or license from federal grantees, making the current NIH policy illegal. Publishers are afraid that mandated public access to federally funded research would hurt their profit margins, and this bill is basically a gift from Conyers to Springer, Elsevier, and the AAP. Meanwhile, it contravenes everything President Obama has said about increasing openness in government, not to mention improving access to information, strengthening our education system, and “restor[ing] science to its rightful place and wield[ing] technology’s wonders to raise health care’s quality and lower its cost.” American citizens pay a lot of money for research; this bill would ensure that the vast majority of us will never see the results of that research.

This is not nearly as big or headline-worthy as the colossal banking bailout, but the spirit is the same: Use taxpayer money to save a private industry from its own failings. The big STM publishers are clinging to a dying business model, and nothing Congress does will save them if they don’t get with the program and stop fearing the giant copy machine that is the Internet. Blah blah, we know this already.

Well, the bill failed once. Here’s hoping it fails again.

From the Wall Street Journal:

The decision represents an abrupt shift of strategy for the industry, which has opened legal proceedings against about 35,000 people since 2003. Critics say the legal offensive ultimately did little to stem the tide of illegally downloaded music. And it created a public-relations disaster for the industry, whose lawsuits targeted, among others, several single mothers, a dead person and a 13-year-old girl.

Instead, the Recording Industry Association of America said it plans to try an approach that relies on the cooperation of Internet-service providers. The trade group said it has hashed out preliminary agreements with major ISPs under which it will send an email to the provider when it finds a provider’s customers making music available online for others to take.

The RIAA plans to finish pursuing all currently active lawsuits – so Jammie Thomas isn’t safe, yet – but when the last one is over we will finally be able to close the book on one of the most absurd chapters in American copyright history.

I have to say, while the end of these lawsuits is wonderful news, especially for my employer and other universities and colleges across the country, a part of me is a little sad. The story of the crazily misguided RIAA suing its customers (and dead people) has become one of the mainstays of my copyright lectures. With the RIAA finally approaching sanity, I lose one of my favorite villains.

Hat tip to Fred Benenson via Twitter.

Update 12/21/08, 8:14 am EST: It turns out that the WSJ article was misleading about the RIAA’s phasing out of lawsuits. It claims the organization stopped filing lawsuits “early this fall”, but Ray Beckerman has uncovered suits filed as recently as last Monday. It’s unclear whether the WSJ was misleading on purpose, or simply misled by RIAA spokespeople. So nevermind, for now. Our villain remains villainous.

I loved “Scan This Book” because of its optimistic and utopian vision for the future of books in a world of networked bits. Not only did Kelly write favorably of libraries’ participation in Google’s scanning project (for which I am totally in the tank), but he imagined a highly appealing textual landscape in which everything is flexible, linkable, and infinitely copyable. Most compellingly, the article tied Kelly’s fantastic potential future to the legal and economic challenges of the present; he called the indefinite extension of copyright terms “perverse” and titled a section “When Business Models Collide.” The article was both dreamy and grounded. Seriously, you should read it.

When I saw Kelly’s latest article, I hoped that it would do for screens what the previous one had done for pages: frame the astounding potential for a technology in the limitations of the present. I did not quite get what I was looking for. The article is great, and worth reading, but it is a more purely futuristic work.

The basic premise is that new tools will soon make it possible for many people to develop a “screen literacy” that maps very closely to textual literacy, where textual literacy is the ability of a user “to cut and paste ideas, annotate them with her own thoughts, link them to related ideas, search through vast libraries of work, browse subjects quickly, resequence texts, refind material, quote experts and sample bits of beloved artists.”

Kelly argues that “Literacy… required a long list of innovations and techniques that permit ordinary readers and writers to manipulate text in ways that make it useful,” and now new innovations and techniques will permit ordinary people to do the same with moving images.

If text literacy meant being able to parse and manipulate texts, then the new screen fluency means being able to parse and manipulate moving images with the same ease… It took several hundred years for the consumer tools of text literacy to crystallize after the invention of printing, but the first visual-literacy tools are already emerging in research labs and on the margins of digital culture.

These tools will the remix and the mashup to a whole new level, to the point where we can index, reference, and annotate moving images without resorting to screen shots. Neat, right? But then Kelly loses me. He goes on:

The holy grail of visuality is to search the library of all movies the way Google can search the Web. Everyone is waiting for a tool that would allow them to type key terms, say “bicycle + dog,” which would retrieve scenes in any film featuring a dog and a bicycle.

At which point I become irretrievably distracted from the coming screen literacy, and focus on something else entirely. Why? Because there are approximately 3,500 words in this article, and none of them are “copyright,” “intellectual property,” or “lawsuit.” It’s lovely to talk about the technical challenge of building a visual search engine for a universal library of moving images, but how can you not mention that whoever builds it is likely to face exactly the same kind of legal challenges that Google’s book scanning project did? Worse, really, because book publishers are newcomers to the “sue your fans” business model, while the movie industry has been fiercely litigious since birth.

I understand that maybe Kelly didn’t want to retread old ground, and that harping on problems with copyright law gets boring after awhile, but it’s hard for me to believe in an a vision of a screen-fluent future that doesn’t take into account the battles we’ll have to fight to get there. The vast majority of our visual culture is copyrighted; unless and until we figure out how to fix copyright law, the vibrant creative world Kelly describes will always be in danger of death-by-takedown notice.

The University of Michigan Library was just awarded a grant for over half a million dollars from the Institute of Museum and Library Services, to develop a copyright review management system which will improve the reliability of copyright status determinations.

Here are the details:

The University of Michigan Library will create a Copyright Review Management System (CRMS) to increase the reliability of copyright status determinations of books published in the United States from 1923 to 1963, and to help create a point of collaboration for other institutions. The system will aid in the process of making vast numbers of these books available online to the general public. Nearly half a million books were published in the United States between 1923 and 1963, and although many of these are likely to be in the public domain, individuals must manually check their copyright status. If a work is not in the public domain, it cannot be made accessible online. The CRMS will allow users to verify if the copyright status has been determined.

The project was inspired by the work that the Michigan Library is already doing to determine the copyright status of the thousands of books published between 1923 and 1963 that Google has digitized from our collections. Books published during that period are in the public domain if their copyrights were not renewed or if proper copyright notice was not included in the publication. Most digitization projects, including Google’s, block access to all books published after 1922 because their copyright status is unknown and difficult to determine. Michigan has a workflow in place that uses copyright renewal records and page images from the books to research the copyright status of those works, and to open up access to the ones that turn out to be in the public domain.

The Copyright Review Management System will build on this work, and support efficient collaboration among institutions. It joins OCLC’s new Copyright Evidence Registry in the growing field of collaborative library copyright determination projects. My understanding is that Michigan is already sharing data with OCLC, and presumably our collaborators will as well. It’s nice when collaborative projects collaborate with each other.

Michigan’s project will raise the impact and usefulness of mass digitization projects by drastically increasing the number of digitized works that libraries can safely share with the public. In the absence of a reasonable orphan works bill, or even, dare I say it, some much-needed improvements in copyright law, it’s great to see libraries working to expand the known public domain and squeeze every last usable work from their massively digitized stacks.

From the press release:

The WorldCat Copyright Evidence Registry is a community working together to build a union catalog of copyright evidence based on WorldCat, which contains more than 100 million bibliographic records describing items held in thousands of libraries worldwide. In addition to the WorldCat metadata, the Copyright Evidence Registry uses other data contributed by libraries and other organizations…

“Having a practical registry of copyright evidence is vital to our objective of providing our scholars and students with more digital content, one goal of Stanford’s mass digitization projects,” said Catherine Tierney, Associate University Librarian for Technical Services, Stanford University. “By leveraging the value of its massive database, OCLC is in a unique position to champion cooperative efforts to collect evidence crucial to determining copyright status.”

It’s good that OCLC is creating a copyright status registry. A well-populated registry, by and for librarians, with good and useful metadata, could eventually save users real time and money. Currently, we have a handful of institutions doing major digitization projects that are separately investigating copyright status on a large scale. It’s inefficient, with lots duplicated effort. Copyright evidence is exactly the kind of thing on which libraries can and should be collaborating, and OCLC seems like a logical organization to take the lead.

I do have a couple of questions/concerns.

1. OCLC claims and enforces copyrights in its bibliographic records. While it grants member libraries permission to make broad use of those records, my understanding is that the same is not true for non-members. If OCLC extends that policy to the Copyright Evidence Registry, it risks becoming just another walled garden that is useful only to a select (and paying) group of members, and less useful even to that group than it would be if it were truly open.
2. Right now the registry is sparsely populated. It will take a critical mass of records and contributors to become a trustworthy source of copyright evidence. Where will that critical mass come from? What is OCLC doing to build it quickly? How will users know when the registry has reached it?

Via Digital Koans.

It was yet another version of my “Introducing Creative Commons: Why you should love it as much as I do” spiel. With this one, I aimed for a blend of copyright basics, the big picture on the broken copyright system and how that affects libraries, and the nuts and bolts of Creative Commons and how it can help us do our jobs. As usual, the slides barely scratch the surface of what I said, and as usual, they’re up on Slideshare anyway. The timing of my visit was perfect: CC International announced the launch of new licenses ported to Singaporean law the day before I arrived.

Talking about copyright in Singapore was a fun challenge. As I heard over and over from the Singaporean friends I was visiting and from the librarians I met, laws and policies in Singapore tend to be commerce friendly and control oriented. Singaporean copyright policies are no exception. While the law itself includes “fair dealing” provisions with wording similar to American “fair use”, most of the time you only hear admonitions against piracy, and I got the sense that any unauthorized use is considered a violation of the law. There were signs in the libraries, such as the one below, warning patrons that if they tried to rip CDs from the library collection on their personal laptops they would be turned over to the police.

In such an environment, it can be hard to imagine copyright holders who would choose to loosen their grip on the works they control, but that’s exactly what Creative Commons is all about. As a result, attendees had a lot of questions.

[An aside: My favorite question wasn't really about Creative Commons at all. A librarian who handles the purchasing of electronic subscriptions asked if it would be possible to get vendors to translate their license agreements into human readable language. My answer was "probably not," because it benefits vendors when libraries don't understand the agreements we sign, but it got me thinking about all the other kinds of laws that would benefit from a human readable translation. Tax law. Immigration law. Contract law. All of them, really. Carl Malamud is doing great work in expanding public access to law and legal documents; the next logical step would be to translate it all into a language the public can understand.]

There were several variations on “If you use Creative Commons licenses, how do you get paid?” One person asked, “Why would you ever use the Attribution license if there is the chance someone might pay you to use your work?” Which is a perfectly reasonable question, especially if you’ve been trained to think that copyright and commerce always go together. It also challenged me to articulate on the fly some of the reasoning behind participating in the Commons that I’ve only ever expressed in writing. I don’t know if I convinced her.

The audience seemed more excited about the possibility of using the CC-licensed work that’s already out there. The idea that there are quality resources they could use without being branded a pirate was a revelation for these law-abiding librarians. I was glad I’d added a new slide to the presentation that explains how to comply with a license when using CC-licensed work. A few people commented on it afterwards, and I’ll definitely use it again.

Singaporean librarian and new friend Ivan Chew arranged the visit, and he did several thoughtful blog posts about issues raised at the talk: 1, 2, and 3. A big thank you goes out to Ivan for setting everything up; my visit to the National Library was one of the best parts of a consistently amazing trip, and I’m so glad I had the opportunity. Thanks, Ivan!

The other panelists were local luminaries in the areas of music and copyright: Mark Clague, Associate Director of the UM School of Music, Theatre & Dance’s American Music Institute; Jessica Litman, expert on copyright law, author of Digital Copyright (2001), and Professor of Law at the UM Law School; and Christopher M. Taylor, a shareholder practicing in Butzel Long’s Ann Arbor office in the areas of media law, intellectual property, technology and e-commerce. The moderator was W. Kim Heron, editor of the Metro Times and former radio dj.

I thought it was terrific that this panel was held at the public library. The location was a completely appropriate place to talk about improving public access to culture by bending copyright to suit the needs of the people. It was especially valuable for me because I am so accustomed to discussing these issues in the context of scholarship and academia. While the scholarly publishing crisis did come up, and there were two academics on the panel, overall the evening emphasized popular culture and public access.

I’ve struggled to capture all the great conversation that happened that night, both among the panelists and with the audience, but here are a few key themes.
Copyrights in the hands of big media are very different from copyrights in the hands of creators
As Jessica Litman put it, “Even though copyright vests automatically in authors, we’ve made it really easy to sign away your rights, and really hard to get them back.” When Gil was first starting out in music fifty(!) years ago, he had to sign away all his rights to his record label. 35 years later, when he tried to get those rights back, it took seven years and a lawsuit, and the record company still owns the physical copies of the original recording. When Warner controlled all the copyrights, the songs were only available for sale, and if a recording was out of print, there was nothing Gil or anyone else could do about it. Now that he controls his own rights, Gil has released everything under a Creative Commons license that allows remixing, and his songs can become part of the larger musical discourse.

Part of the problem, to quote Jessica Litman again, is that “Copyright law was designed to make sure that you need a copyright lawyer.” These days everyone is a copyright holder, but in order to leverage that power, you have to understand the law, and the law is nearly impossible for ordinary people to understand. This gives big corporations with armies of lawyers an immense advantage over artists, most of whom have never heard of Creative Commons and don’t understand how much they’re giving up when they sign away their copyrights.

Culture should belong to the people
According to Litman, copyright traditionally concentrated control in a few hands, the hands of the publishers, record companies and movie studios, in a way that disempowered the original creators. It made economic sense when you needed printing presses and recording studios, but not any more.

Mark Clague made the point that we tend to think of the production of culture as separate from societal structures like law. But law has a huge influence on culture, and in the case of copyright law, it profoundly shapes how culture is produced, shared, and adapted. The idea behind Creative Commons is that cultural products, the goods produced by culture, should be available to the people of that culture, to the society that produced it. Intellectual property and copyright laws tend to block or interfere with that availability. CC licenses give authors the authority to establish permissible uses in a way that democratizes culture.

Gil spoke about the background of Creative Commons in Brazil. Lawrence Lessig worked with law professors in Brazil to adapt the licenses to Brazil, and the professors promoted the new licenses and started a movement. Gil joined them, both as a musician and as the Minister of Culture. He said that the value of Creative Commons in Brazil was that it “empowers people, the community, street people, to produce their own culture and promote their own culture and sell their own culture.”

“The technology is anarchistic at its core”
Gil had a terrific riff about the fundamental nature of technology. With computers and the internet, copies are exact, and they are inevitable. Protecting against copies is impossible. The technologies are attacking and destroying protection; they can’t help it. Copy! It’s what they do. The technologies themselves are anarchistic. “Some years ago a copy would be recognized as a copy so it wouldn’t have the same value as the original, but in the digital world the copy is the same as the original.” Protection is almost impossible, but the compensation can happen in new ways. Content producers should be focusing on compensation, not protection. Experiments with advertising, collecting societies, and investors will lead to new models for compensating artists for their work, long after everyone realizes that DRM is futile.

A number of questions from the audience centered around protecting creators from pirates, and it was very frustrating, both for me and the panelists. Over and over, the panel pointed out that trying to control copies doesn’t work, and that if people are given convenient ways to buy movies and music legally, many will do so. Big Media has focused so much energy on protection, and hasn’t put nearly enough into developing new strategies that embrace the web, and that’s their problem. Plenty of independent artists have found ways to build a fan base and make a living using the internet, and free copies are part of their business model.

***

Gilberto Gil is on a big tour at the moment. If you’d like to hear him speak about a variety of subjects, including his life, music, politics, and Creative Commons, Amy Goodman did an hour-long interview with him last week.

One of the primary tensions between copyright and Web 2.0 is that copyright is all about centralizing control, and 2.0 is all about decentralized sharing. When creators post their videos to YouTube or their photographs to Flickr, the goal is for the content to be linked, embedded, copied, emailed, and if it’s really good, spoofed, parodied, and remixed. Creators 2.0 may want credit, but they never expect to have anything resembling control, or at least the savvy ones don’t. The best thing that can happen to a creator on the web is to lose control, to have a maelstrom of copies shooting all over the world, to make a work that reproduces prolifically and of its own accord, like bunny rabbits or a virus.

The role of copyright in this landscape is confusing at best.

Blog feeds have come up recently as a major point of confusion. RSS enables people to aggregate lots of content from all over the web in one place; it takes the content that is produced for a single blog or website and puts it into a nice little package that can be exported and imported all over, including into other websites. As Ken Varnum puts it in a recent post on the subject, “feeds are purpose built to make content portable. If the author did not want others to copy the content, the author would not send it out in a format designed for its simple syndication.”

So what happens when someone takes an RSS feed and uses it in a way that the author doesn’t like? Can the author suddenly cry “Copyright infringement!” and have the whole thing shut down? Some bloggers appear to think so:

By providing the full content of my RSS feed, and therefore my content, on their site, they deprive me of those visitors who would otherwise come directly to my site. If I had advertising on my site, they could also be depriving me of revenue… In the same way that I can’t reprint a Harry Potter book and start selling it for my own gain, we need to realize that we can’t do that with RSS feeds or other Web content either. While Fair Use is OK, you can’t just start lifting and reusing entire bodies of work without permission. [Larry Borsato, PC World]

[W]hen a service cannot exist *without* republishing others content in its entirety, and directly profits from that republishing without the original consent of the author, there’s something that isn’t right. [Tony Hung, Deep Jive Interests]

Both of these comments were prompted by a new social feed reader called Shyfter. Shyfter aggregated feeds and posted them on the open web, instead of displaying them only to subscribers who had signed up to get certain feeds. I completely missed it at the time, but there was a whole blogosphere brouhaha about whether Shyfter’s tactics were unfair, infringing, or totally awesome. In the end, Shyfter bowed to pressure and stopped displaying whole feeds.

RSS hasn’t been around long enough to have a body of case law supporting one stance over another, and it will be very interesting to see what happens if a conflict like this ever makes it to court. I certainly understand how blog creators/copyright holders might want to be able to control who re-uses their work and in what contexts, especially bloggers who make money from ads. At the same time, I also want to smack my forehead and say, “Guys! It’s the internet! This is how it works! If you don’t want to lose control, don’t put your stuff online.”

But I suppose that’s not a terribly nuanced interpretation of copyright law, is it? If we hope to have a thriving content industry on the web, we’re probably going to have to find a way to enforce copyright online, right? Ideally a way that doesn’t involve the systematic intimidation and prosecution of music fans, but that’s another story.

Lessig comes down strongly against the current orphan works bills.

The solution before Congress, however, is both unfair and unwise. The bill would excuse copyright infringers from significant damages if they can prove that they made a “diligent effort” to find the copyright owner. A “diligent effort” is defined as one that is “reasonable and appropriate,” as determined by a set of “best practices” maintained by the government…

The proposed change is unfair because since 1978, the law has told creators that there was nothing they needed to do to protect their copyright. Many have relied on that promise. Likewise, the change is unfair to foreign copyright holders, who have little notice of arcane changes in Copyright Office procedures, and who will now find their copyrights vulnerable to willful infringement by Americans.

The change is also unwise, because for all this unfairness, it simply wouldn’t do much good. The uncertain standard of the bill doesn’t offer any efficient opportunity for libraries or archives to make older works available, because the cost of a “diligent effort” is not going to be cheap. The only beneficiaries would be the new class of “diligent effort” searchers who would be a drain on library budgets.

Lessig goes on to propose his own solution, one that he has proposed before: after a limited time of automatic copyright protection, creators must register their works in order to have the term of copyright continue. If you’re interested, you can go digging through the public comments on orphan works at the U.S. Copyright website to find an earlier incarnation of this suggestion.

Lessig concludes with an argument central to the success of Creative Commons, and one that should be a priority for any real attempt at copyright reform. (Emphasis added).

A hired expert shouldn’t be required for an orchestra to know if it can perform a work composed during World War II or for a small museum to know whether it can put a photograph from the New Deal on its Web site. In a digital age, knowing the law should be simple and cheap. Congress should be pushing for rules that encourage clarity, not more work for copyright experts.

I agree wholeheartedly, even though simple and clear copyright laws would put me out of a job.

The House version of the bill is so burdensome I would much prefer just to rely on fair use, even with all its uncertainty, than to know for certain that the burden for each and every use is so extremely high, and likely very expensive to carry out (probably costing considerably more than reasonable compensation would have cost if there had been an owner to pay it to). The bill seems intentionally designed to discourage use, not to encourage it. (I can hear the “yes!” responses from orphan works legislation opponents.) Since we already have plenty of discouragement in the form of draconian remedies, I can only conclude that the architects of this bill were in fact worried that people might actually proceed with uses of orphan works if there were no bill.

Harper believes that if the bill passes it is likely to resemble the larded House version, and that it may get even worse.

After the bill was released, I was taken aback by the opposition of several bloggers to the Notice of Use registry in the House bill. On its face, I think requiring people to register their use of an orphan work is not a bad idea; over time, it would build a body of works that are recognized as orphans, and would make it easier for copyright holders to keep an eye on things in the unlikely event that someone mistakenly (and in good faith) identifies a work as an orphan when it isn’t. What I missed in my first reading of the bill, and what shrewder readers like Georgia Harper spotted, was that a registration requirement was likely to be cumbersome and expensive, and could end up acting as another deterrent to potential users. In other words, the House bill could actually make things worse.

Meanwhile, Kevin Smith takes a more hopeful position, though he also sees the bills as limited at best. He focuses on potential library uses of orphan works, particularly in digitization projects, which are also some of the uses I am most concerned about.

Even with all these restrictions and potential problems for using the orphan works mechanism, I am inclined to think of these bills as half-full glasses. For one thing, it has been a long time since a genuinely user-centered proposal has even been considered by Congress. Also, this is a rare situation where libraries, higher ed., publishers and the recording industry have worked together and agreed on a reform regarding user rights. One might suggest, cynically, that the content industries only agreed to these proposals because they have been made too complex to be usable. But I do see potential uses here, based on the kinds of things I am asked about, even if only for a subsection of textual works that really are easily established orphans. If the provisions for pictorial and graphic works are long delayed, we will be no worse off than we are now. The only real downside would be if we accept this bill while a better alternative is possible, and regarding that possibility I agree with Georgia that no one should hold their breath.

I’m inclined be optimistic about the possibilities that even a pandering orphan works bill would open up. Some academic libraries, including Stanford, the University of Texas, and the University of Michigan, are already developing tools, processes and workflows for researching the copyright status of digitized materials. That work should provide a good foundation if it turns out that libraries do need to comply with registration requirements or complicated “best practices” guidelines.