Authors Guild, Inc. v. Hathi Trust

The 2nd Circuit Court of Appeals has issued a ruling in the case of Authors Guild v. Hathi Trust. See Justia for full text of ALL pleadings including the decision.

See Assn. of Research Libraries' posting here for some partisan explanation and hyperlinks to amicus briefs.

The Authors Guild website does not offer documents, but does have statements.

And the Electronic Frontier Foundation (EFF) offers another point of view, placing the lawsuit in the context of the Google Books project law suits.

The clearest, most succinct summary of the ruling comes from a business lawyer blogger who runs Recording INdustry vs. The People, who posted a report on Friday June 13, 2014, "Second Circuit OKs Scanning Whole Books." He summarizes the background that the Hathi Trust members began scanning books, participating in the Google Book Project (The Trust members are very large research libraries, mostly at large, research universities). The books are owned, in the libraries' collections. The trust began making a searchable database of the full text of the books available to 3 groups of people:

1. The public may search with key word searches. The results come back, showing no text of the works, but only showing the frequency of the words, and page numbers on which the words occur.

2. People with disabilities which prevent them from holding or manipulating books, turning pages may have access to the full text of the books. [note from Betsy: This is a different population than those usually served. Most disability programs are designed for visually impaired readers, and they are well served. Those who cannot hold print books or manage them with their hands have no programs that I know of.]

3. Members of the Hathi Trust (that is, the libraries) could replace lost, stolen or damaged books with a copy made from a digital version, IF they could not purchase a replacement on the market at a "fair" price.

The 3 judge panel ruled that the first two uses by access groups do not violate the copyrights of the Author Guild rightsholders. They ruled that the Authors Guild does not have standing to challenge the 3rd use.

Google Books: Scanning is Fair Use per Judge Denny Chin

Judge Denny Chin granted Google's motion for summary judgement today, dismissing the lawsuit by the Authors' Guild against their Google Books project.  Here is the ruling on Scribd.  Judge Chin found that Google's scanning and adding a search function to the print books was "highly transformative" lifting the Google Book Project out of the strictures of copyright into Fair Use.

Judge Chin referred to a number of amicus briefs filed by various library and scholarly groups to recognize the many benefits generated by the book and library projects in his opinion.  From preservation to data mining to increasing access, the Google projects are recognized as providing huge new benefits that were previously not reached by either print or e-book presence.

Judge Chin assumes that the plaintiff has established a prima facie case that Google has violated copyright through the scanning projects.  But because he finds that it falls under Fair Use doctrine


(§107 of  the Copyright Act), the case is dismissed. Because Google Books uses the words in the books for a different purpose - creating snippets for readers to sample, for instance, or to search with , or for datamining, Judge Chin finds Googles use "highly transformative."

Words in books are being used in a way they have not been used before. Google Books as created something new in the use of book text -- the frequency of words and trends in their usage provide substantive information.

     Google Books does not supersede or supplant booksbecause it is not a tool to be used to read books. Instead, it"adds value to the original" and allows for "the creation of new information, new aesthetics, new insights and understandings." Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. at 1111. Hence, the use is transformative.

(from Chin,  Author's Guild, et al., v. Google, 05 Civ. 8136 (S.D. N.Y, Nov. 14, 2013) , at pp. 20 - 21). 
 Image is Judge Denny Chin, taken at the time of his confirmation as a federal judge.

Happy Birthday!

Oh, have you heard the rumor about "Happy Birthday" being copyrighted, and the copyright is held by a grasping old woman?  There is a wonderful, witty blog post on Forbes.com about a class action law suit in the Southern District of New York, Good Morning to You Productions, Corp., v. Warner/Chappell Music, Inc.  It turns out that Warner/Chappell, the huge music company claims the copyright, and has been collecting royalties from commercial use of the song for some years.  The complaint asserts that the song, the tune for which was written in 1893, has been in the public domain for years.

From the blog post,

The history behind the song, and the relevant legal arguments, are set forth exhaustively in this excellent 2010 article by Robert Brauneis (PDF) a law professor at George Washington University. It’s a really interesting read even—maybe especially—if you are only interested in the history. It explains that the song was written for kindergarten students by two sisters in the late 19th century. Originally it was called “Good Morning to All,” and was first published in 1893. The words were different, obviously, but the melody was the same (each can get separate copyright treatment). At some point, the lyrics mutated to the familiar “happy birthday” ones, and Brauneis says the old melody and the new words then formed a new work for copyright purposes. Who owns that, though, if anyone, is not clear. To cut to the chase, Brauneis concludes in his article that the song has probably been in the public domain since 1963 at the latest. 

Apparently, Prof. Brauneis' article may become key to the class action case! The complaint lays out carefully the murky history of this most-recognizable song, and so does the article.  Something interesting to watch!

P.S., Aaron Swartz

Readers will recall Aaron Swartz's suicide, in apparent reaction to his ongoing prosecution for downloading huge numbers of files from JStor illegally at MIT.  Swartz was an Internet activist who downloaded the files, not for personal gain, but as a stunt to draw attention to his argument that the articles and materials in the files had already been paid for by the universities, in that their faculty created the materials.  He felt that the materials should not be behind pay walls.  But after the prosecution began, Swartz returned the files and JStor dropped civil charges.  MIT to ask the prosecutors to press criminal charges, and the federal prosecutors in Boston did so with great creativity and effort.  Swartz originally faced 4 charges, but finally had 13 felony charges against him, up to 35 years in prison and a million dollars in fines.  The extra charges were derived by creating a separate charge for each date.  Many of the charges were not simply based on violation of copyright, but were under the Computer Fraud and Abuse Act, 18 USC § 1030 (CFAA).

The CFAA is extremely broad, and allows great latitude to prosecutors. Through the original law and amendments since, it essentially prohibits both the acts and attempts of seven offenses:


1. obtaining national security information,

2. compromising confidentiality,

3. trespassing in a government computer,

4. accessing to defraud and obtain value,

5. damaging a computer or information,

6. trafficking in passwords, and

7. threatening to damage a computer.


The House Committee on Oversight and Government Reform is holding a hearing, asking the prosecutors for more information on this prosecution. Here is a link to the letter the Committee has sent to Attorney General Eric Holder requesting more information on the decisions made by the prosecutors in the case. Among other questions, the Committee asks why they made a superseding indictment adding the extra felony counts. The Committee asks whether Swartz's opposition to SOPA or other activism was a factor in the decisions in the case.

Shortly before the Committee issued this request, a Boston Globe columnist, Kevin Cullen, wrote a column about a similar case in Boston 19 years ago, where the same prosecutor, Steve Heymann, brought charges against an MIT student, David LaMacchia, for similar computer hacking. LaMacchia had downloaded $1 million worth of software which he posted to a bulletinboard for anyone to download and use. In that case, however, federal District Judge Richard Stearns dismissed the case just before it went to trial. Judge Stearns ruled: "One might at best describe his actions as heedlessly irresponsible, and at worst as nihilistic, self-indulgent, and lacking in any fundamental sense of values." With that stern dressing-down, the judge sent the sophomore LaMacchia back to his dorm, probably embarrassed, but with his life and future intact. The Globe columnist tells his readers that LaMacchia had contacted Aaron Swartz with an offer to talk when he heard about the prosecution. Swartz never called him back.

It is sad that the judge in Swartz's case did not feel he or she could dismiss the matter. It is also sad that Swartz did not, for whatever reason, feel he could or wanted to, reach out to LaMacchia. I am very grateful that the House Committee is asking some hard questions about the prosecutors' decisions in the Swartz case. And I am also glad that the community is continuing to pressure all those who felt that this case needed to be made into an example. It has been appalling to watch the copyright-holding community make examples of little people time and again in their efforts to secure rights that they feel slipping in an electronic world. We need to keep some sense of proportion, and perhaps this case is the one that will be a wake up call. How sad.

The image is an often-reproduced photo of Aaron Swartz that appeared in the Globe.

Copyright Martyr: RIP Aaron Swartz

Aaron Swartz was somebody who helped code some important pieces of the modern Internet: RSS and Reddit, and, having cashed out at an early age, became an activist for making information public. He put a good deal of his own money into the development of RECAP, for instance. He also launched Demand Progress to help stop the SOPA and PIPA bills in Congress which were copyright protection/anti-piracy bills that would have crippled the Internet.

But when Mr. Swartz downloaded a huge number of JStor documents illegally from MIT's libraries onto a laptop hidden in a closet, the U.S. Justice Department decided to prosecute the copyright violation to the full extent of the law. While Swartz's lawyer attempted to negotiate a plea down to a misdemeanor, the prosecutors insisted on a felony charge with 35 years of prison time and a huge fine. The inflexible attitude of the prosecutors was notable and puzzling to those watching the matter unfold.

Friday, Aaron Swartz hanged himself at his Brooklyn apartment. Friends and family blame not only the prosecutors but also MIT and JStor, which did not push the prosecutors to back off. Many friends and admirers have posted comments and memories. Aaron Swartz was only 26.

Maybe it's time to discuss the attitude about copyright infringement.

Copyright and Fair Use at Georgia State

Link to this excellent blog note by Kevin Smith at Duke about the ruling in the Georgia State fair use litigation. (Cambridge Univ. Press, et al. v. Mark Becker as President of Georgia State Univ., et al., in the Federal District Court for the N. Dist. of Georgia, Atlanta Div., opinion filed May 11, 2012) Tip of the OOTJ hat to our fabulous colleague, Ron Wheeler at San Francisco U.

The thing was, that in a mixed, complex opinion, more than half the claims were either dropped by the publishers or dismissed by the judge, and then, in the stunning finish, the judge awarded the costs and attorney fees to Georgia State!

There are a number of articles by now on the matter:

Chronicle of Higher Education (with the excellent link to the decision).

Library Journal (includes links to earlier articles in the same journal covering the original filing of the case, and the closing arguments in the case, etc., but no links to original documents, sadly).

Inside Higher Education includes a link to Prof. Kevin Smith's blog post as well as one to the Association of American University Presses website in support of the plaintiffs in the case. This includes an excellent section of original documents in the case, most from the plaintiffs, but some from the defendants as well. Excellent link site!

Educause provides a web page with lots of links original documents:
* Document with links to the decision and analysis by 3 scholars (note from Betsy: this sometimes does not show up on my computer; I am not sure if it's a problem with my computer or their link)

* a memorandum summarizing the key rulings in the case and the implications for libraries (again, the PDF does not show up on my computer and I don't know if it's their glitch or mine)

* policy notes from the ARL (I cannot get this link to work today; I hope it works other times!)

* a collection of blog notes from all over about the case, and more (these work!)

The Digital Reader - very handy because it handily recaps the story of the case up til the decision, and provides some nice links out to blogs and a NY Times story that follows the story through the years from the 2008 filing til now.

Experts figure the story may not be over yet. They expect that the publishers may go on to appeal this district court decision. But it was a huge statement for Fair Use Doctrine defenders in an era when there has been such a drumbeat (at least in the lobbyist-influenced legislatures) in favor of the copyright holders. But it's a complex, nuanced and HUGE decision -- 350 pages! The judge was careful and made decisions on an item-by-item basis.

She laid out clear rules for how universities can and cannot use textbook versus non-textbook materials and still fit within fair use guidelines. But she also gave GSU credit for sincerely trying to develop policies that would honor fair use. That undoubtedly saved them!

So, it's not a broad, clear win for one side over the other. But the awarding of the attorney fees was a pretty strong statement!

Scholars' Journal Boycott: Open Access Rebellion

On January 21, Cambridge University mathematician Timothy Gowers posted on a blog, griping about the publisher Elsevier (and others). He did a very nice job listing the problems that librarians have complained about as consumer issues:

1. It charges very high prices — so far above the average that it seems quite extraordinary that they can get away with it.

2. One method that they have for getting away with it is a practice known as “bundling”, where instead of giving libraries the choice of which journals they want to subscribe to, they offer them the choice between a large collection of journals (chosen by them) or nothing at all. So if some Elsevier journals in the “bundle” are indispensable to a library, that library is forced to subscribe at very high subscription rates to a large number of journals, across all the sciences, many of which they do not want. (The journal Chaos, Solitons and Fractals is a notorious example of a journal that is regarded as a joke by many mathematicians, but which libraries all round the world must nevertheless subscribe to.) Given that libraries have limited budgets, this often means that they cannot subscribe to journals that they would much rather subscribe to, so it is not just libraries that are harmed, but other publishers, which is of course part of the motivation for the scheme.

3. If libraries attempt to negotiate better deals, Elsevier is ruthless about cutting off access to all their journals.

4. Elsevier supports many of the measures, such as the Research Works Act (112 HR 3699), that attempt to stop the move to open access. They also supported SOPA (112 HR 3261) and PIPA (112 S 968) and lobbied strongly for them.

I could carry on, but I’ll leave it there.

Professor Gowers notes that scholars can fight back by refusing to continue editing for, publishing in or doing peer reviews for such journals. He notes that he has stopped doing these things in Elsevier journals and encourages others to do so. I notice that his post has received 31 comments to date, and 83 people have used Google to +1 it, 614 people have shared it on Facebook, and 778 have tweeted it on Twitter, so this is a very hot post.

Gowers wondered if there might be a website where mathematicians who want to boycott Elsevier journals could sign their names electronically. Within a day or two, The Cost of Knowledge appeared, providing just such a website. Scholars from a wide variety of fields (law is not listed, but is subsumed under "social sciences") have signed, and are listed in alphabetical order. Science, math and humanities are all represented. The impressive part is that the protesters pledging to forgo publishing in journals such as The Lancet and Cell, include not just "made" scholars, but tenure track junior scholars, who are truly putting a great deal on the line by joining the protest. As of right now (Feb. 8, 3 PM ) there are 4,713 signatories total on The Cost of Knowledge.

The Chronicle of Higher Education has noted the protest and notes that Elsevier has felt enough pressure to make a statement in response. Librarians who look at the article will not be surprised by any of the justifications from the Elsevier spokeswoman: The steep price increases of the 1980's are a thing of the past and are coloring the perceptions of the problem now. Elsevier claims that it invests a lot in metadata tagging that adds value and links articles together, making research more efficient(and that would not be available if the scholars published their own materials -- UNLESS they worked with librarians!).

The company's support of the Research Works Act is driven by its investment in those products, [the spokeswoman] added: "It's not a disavowal of the National Institutes of Health or of open access. We are just trying to avoid inflexible regulations." The company was the first and largest contributor to PubMed Central, the NIH repository of free, full-text articles,....

Mr. Gowers, ... told The Chronicle that researchers can now evaluate and review one another's papers on open Web sites. "That would be far cheaper than anything a commercial publisher could hope to offer, and just as effective," he noted.

Nor does the Elsevier infrastructure impress younger scholars like Mr. Abrahams. "It could disappear tomorrow, and I'd never notice that it's gone," he said.

If I were Elsevier, and other, similar journal publishers, I think I would be worrying a bit.

Anonymous attacks on Polish government websites after they sign ACTA treaty

Per Joanna Kulesza, through Giganet:

Hopefully a useful link to ones researching copyright and ACTA. In Poland
the battle is currently on:

http://www.washingtonpost.com/business/polish-government-websites-face-appar
ent-attack-by-internet-group-anonymous/2012/01/22/gIQAF1GEIQ_story.html

Hackers from Anonymous are attacking Polish governmental sites attempting to
force the government out of signing ACTA on Jan. 26th. You can follow the
attacks as they unfold: http://twitter.com/#!/AnonymousWiki

Regards,

Joanna (Kulesza)

ACTA stands for Anti-Counterfeiting Trade Agreement. Final text is available here (pdf). The first link here takes you to a U.S. government website that includes not only a link to the full text of the final version, but also previous versions as well. It also includes supporting statements from various recording industry, entertainment industry and the organizations that manage intellectual property for those industries. There are statements from the sponsor of SOPA and President Obama as well.

On October 1, 2011, the United States, Australia, Canada, Korea, Japan, New Zealand, Morocco, and Singapore signed the treaty in Tokyo. Representatives of the remaining ACTA negotiating parties, the European Union, Mexico, and Switzerland, attended the ceremony and confirmed their continuing strong support for and preparations to sign the Agreement as soon as practicable.

PC Magazine reports that Polish government leaders are meeting to reconsider their support for the ACTA Treaty.

Wikipedia's article on ACTA is very useful in pulling together links to criticism and the history of the treaty, including leaks about its negotiation. There are a number of organizations and groups that have strongly criticized the treaty's provisions. Follow the link to Wikipedia, or follow up this list of organizations:

* Electronic Frontier Foundation (EFF)

* Consumers International (Press Release, May, 2011) (ACTA open letter, 2009)

* Free Software Foundation

* Free Knowledge Institute (European Union-based)

Wikipedia Black-out Day Against SOPA & PIPA

If you try to visit Wikipedia tomorrow (January 18, 2012), you will get a black-out. They are not alone: Boing Boing, Reddit, Google and others in a NetCoalition are joining in a protest against the two bills pending in Congress currently against online piracy: SOPA (HR 3261) and PIPA (S968). Check their home pages for various forms of protest.

The NetCoalition.com website (not the .org one!) has a lot of useful information on the bills if you need to do research on this area.

Here is a nice thumbnail of the opposition to SOPA and PIPA, though you can find a LOT more out there on the net. Briefly, there is concern that the provisions are vague, allow far more over-reaching by copyright holders than the current DMCA, so that they could do take down notices to web providers, but with lots more power behind it. For instance, SOPA provides that if a web host does not immediately blacklist an accused poster on their service, the web host would then have to fight along with the poster. According to Google, more than 50% of the take-down notices it has received under the DMCA have been by businesses out to drive out competitors, rather than really about copyright issues. This is liable to be just as true in the future. Copyright take down notices are being used as an anti-competitive tool to prevent existing web businesses from having to compete against new start-ups who want to provide either a new service or better service.

Here is a terrific, detailed review of the SOPA bill by a copyright lawyer, Mona Ibrahim, and an update reviewing the amendments.

AALS

I am here at AALS in Washington, DC. We have had the meeting of the Society of Academic Law Library Directors, kindly hosted by Billie Jo Kaufman at American University's Washington School of Law, on Thursday morning. Then, librarians rushed back to the hotels for the Law Library section luncheon. Lolly Gasaway, the retired director from University of N. Carolina at Chapel Hill, and copyright expert, spoke at the luncheon. Lolly talked about licenses being used as a way to contract around fair use rights under the federal copyright statute, and how non-disclosure clauses make it very difficult to study or compare what is going on. She had several recommendations:

1) Model licenses;
2) Use federal copyright law as a backstop, where the terms offered in a license might be preempted by statute;
3) Some state consumer law may make license terms unconscionable. For instance, in Massachusetts, we have very strong consumer protection laws that assist in making such an argument. State statutes and regulations can help moderate the swing that federal legislation has made in recent decades toward an extreme in protecting the rights of copyright holders.

But finally, according to Lolly, all these arguments come down to judicial decisions. Libraries continue to "agree" to restrictive licenses, sometimes through "shrinkwrap" or click-through licenses, and sometimes by trying to obtain subscriptions for faculty or students for items such as Netflix or other subscriptions that are really envisioned for individual consumers. Increasingly e-book licenses, including e-casebooks, have licenses that are designed for individual ownership, and the vendors are not rewriting the license to tailor it for library use. Consortial negotiators, such as NELLCO can help educate and shape the licensors, and are slowly having an effect. See California Digital Libraries licensing toolkit.

Lolly cautions libraries very strongly, though, that violating copyrights will run them afoul of the law. Just because your heart is "good and pure," the law will still come down hard on you for violating copyright.

Following Lolly's excellent talk, we had a very thought-provoking section program, "Libraries and Copyright: Friends, enemies or Strangers on a Common Path?" Speakers were chosen from a call for papers: David Robert Hansen from U.C. Berkeley School of Law and Hannibal Travis from Florida International University School of Law. It was a copyright-heavy day. Travis' talk on the Google Books Project and the law suit that stopped it was fascinating. I particularly liked his study on how the 4 publishers involved in suing Google to stop the project have actually seen their sales increase since the Books Project began.

This only covers Thursday. I still have to tell you all about Friday and Saturday & of course, I haven't lived through Sunday, yet! The decoration image of the Washington monument is courtesy of travel.yahoo.com

Hathi Trust sued over Orphan Works Project mistake

The Chronicle of Higher Education alerts readers in a brief article dated September 14 in the Research section, "In Authors' Suit Against Libraries, an Attempt to Wrest Back Some Control Over Digitized Works," by Jennifer Howard, to a law suit filed on Sept. 12 by the Authors Guild among others against Universities of Michigan, California, Wisconsin, Indiana and Cornell and and the Hathi Trust over their Orphan Works Project. At the Authors Guild website, you can get an announcement and description of the suite along with a link to a PDF of the complaint, filed in the Southern District of New York. Apparently, the Authors Guild, joined by similar authors groups from Australia, Quebec, and the United Kingdom searched through the list of orphan works at the Hathi Trust site, and found a number that they could trace to existing authors. Rather than send corrections to the universities and Hathi Trust, which they specifically request, the authors' organizations filed suit (see the text from the University of Michigan Orphan Works page):

For Copyright Holders - We Want to Hear From You! If you are a bona fide copyright holder – or the authorized representative for a copyright holder – for a title on the Orphan Candidate list, contact us to let us know about your copyright in the book. Kindly fill out this PDF, and send it to us to help us respond as quickly as possible. We will include the copyright information in our record for the book and ask for your instruction on how and whether we may provide access to the digital version. Many copyright holders, especially scholars, are eager to make their out-of-print books available for reading in the HathiTrust. We offer that as an option for any copyright holder who wishes to do so. Copyright holders may identify themselves at any time. Even if you contact us after the 90-day period, we will honor your wishes.

(you should visit the page because the text size and layout makes the bolded text I am emphasizing here even more prominent.) On the other hand, some of the "orphan works" included in the original list were apparently ludicrously easy to link to existing authors. So to some extent, the Hathi group brought this on themselves through sloppy work. there is an article at Library Journal by David Rapp that quotes the University of Michigan released statement that argues that the flawed release of the orphan works list actually achieved the aim, though they will revisit the methods and refine them to

create a more robust, transparent, and fully documented process, we will proceed with the work, because we remain as certain as ever that our proposed uses of orphan works are lawful and important to the future of scholarship and the libraries that support it.

Orphan Works

What are orphan works? These are copyrighted materials whose "owners" cannot be located. This has become a huge problem for scholars, and particularly for any sort of historian, including those in law schools who use older texts. As our faculty and we, ourselves, do more interdisciplinary work, we will be running into this more frequently. The frustration is huge. The Center for the Study of the Public Domain at Duke University has two proposals on orphan works and orphan films and mitigating the costs of each to scholarship, libraries, and archives.

How did we get here? Over 30 years, copyright law has bit by bit relaxed the requirements that copyright owners DO anything to assert or manage their right to that property. At one time, a copyright owner had to register a copyright with the Library of Congress, and to renew their ownership interest every so many years. But a series of public laws extended the copyright length several times, now to the life of the producer plus 70 years.

In 1989, Congress removed the condition that published works must contain a copyright notice. In 1992, it removed the last vestiges of the renewal registration requirement. In 1994, many foreign copyrights were extracted from the public domain. The net result of these amendments has been that more and more copyright owners may go missing. To be sure, such revisions were enacted to protect authors from technical traps in the law and to ensure United States compliance with international conventions. But there is no denying that they diminished the public record of copyright ownership and made it more difficult for the business of copyright to function.

(The Importance of Orphan Works Legislation, September 25, 2008, Marybeth Peters, Register of Copyrights. As requested by Senator Orrin Hatch and Senator Patrick Leahy, the Office submitted its Report on Orphan Works to the Senate Judiciary Committee on January 31, 2006. visited 4/18/11) The most recent legislation referred to in the report mentioned here, Shawn Bentley Orphan Works Act of 2008, SB 2913, passed in the Senate, but apparently died in the House. (use the link at the Copyright report site to go to Thomas.gov and see the information)

The Google Books Amended Settlement Agreement was a different way to deal with what are called "orphan works." In fact, the progress of this Settlement may be why there was no further effort in Congress at legislation after 2008. In fact, part of Judge Chin's dissatisfaction with the Settlement was its method of dealing with the orphan works, agreeing with many of the critics of the Settlement. Judge Chin's ruling called specifically for legislation to deal with orphan works.

In a lengthy article that appeared in the Chronicle of Higher Education March 23, 2011, "Research Libraries See Google Decision As Just a Bump on the Road to Widespread Digital Access," by Jennifer Howard. The author reports that John Wilkin, executive director of HathiTrust (and Associate University Librarian for Library Information Technology at University of Michigan), says that they are talking with Google about a possible renewed coalition to lobby for legislation on orphan works. They want to look, not just at the U.S., but around the world, at copyright legislation that affects orphan works because it really is a global issue. The Digital Public Library of America, envisioned and publicized by Robert Darnton here and here and hosted by the Berkman Center, sessions blogged by John Palfrey, one, two, three and four; and workshop blogged by Dan Cohen and David Weinberger and March 1 Workshop notes. I only find mention of orphan works in any of the notes in Palfrey's session notes, 3 first paragraph, speaking about the need for the different problems of copyright problems for the library to be invisible to the users of a Digital Public Library:

1) Materials that are in copyright will have to be thought about by the DPLA differently (the red zone) from those in the public domain (green) or orphan works and gray literature (yellow). But ideally the members of the public accessing the works would not know about these differences when approaching the content. This issue leads to the tiering issue (or perhaps we need a different word) for DPLA. From a user perspective, could we make it not matter whether the material, before coming to DPLA, was red, yellow, or green? There are a variety of ways that might come to pass, including a possible alternative compensation model for books as a way to pay creators. (For a proposal to create two types of alternative compensation system in a parallel field, music and movies, see William W. Fisher, Promises to Keep, Ch. 6).

and his fourth notes:

As another related point: We should have a legislative solution to tricky copyright restrictions in mind, as a proposal (or a package of proposals), but we need also to make progress absent, or at least prior to, legal change. In addition to orphan works issues, there are copyright issues laden in scholarship associated with computation and massive data sets, as an example.

And a very similar comment in the March 1 Workshop notes under the heading "Copyright problems are the biggest issue facing a DPLA," with a conclusion that "legal reform" will be required. So, it appears that the Digital Public Library folks are still thinking of working towards legislative solutions for orphan works problems, as at least one tool in their chest. I find it hopeful that they are willing to try for progress even while waiting on the legislative solution, which looks like a lengthy road. Copyright lobbyists for major corporate copyright holders these days (like Disney for instance), push incessantly for more and more, regardless of what it might mean for the rest of the world. I wish the Digital Library folks well!

The decoration for this post is actually an advertisement from a Chicago newspaper about orphans, but the blog post where I found it was fascinating (Petticoats & Pistols: The Orphan Trains, dated May 13, 2008, by Stacey Kayne, visited 4/18/2011). These orphanages were not really what we think of as adoption placement agencies, and not all the children received were actual orphans, either, according to the blog. This was during the Industrial Revolution, and many parents were injured or killed at work and the single remaining parent could no longer afford all the children, so they were sent away. Or they simply could not afford all the children they had, and some were sent off. These children from the big cities were shipped out west to the settlers on the prairies along railroads, who could select children to "adopt" or take into their families. They signed a contract with the agency. Apparently some had happy lives, and some were essentially unpaid laborers exploited cruelly. Some agencies checked back on the children they sent out, and some apparently did not. A fascinating piece of history I had never heard of, not being from that part of our country! Stumbled upon, looking for an illustration of "orphan works!"

LinkRights - a possible alternative to newspaper paywalls

The Chronicle of Higher Education has an article from August 8, 2010, by Dalton Conley, Dean of Social Sciences at NYU. "Linkrights and Wrongs," proposes something that Jim Milles discussed here some years ago as a model to compensate the originator of ideas and words on the Internet fairly. Linkrights would share with the creator of a website, any revenue generated by ads on websites that aggregate or link to the material. So that search engines, aggregator sites, and any blogs that run ads would share whatever money they generate from ads at the page where the link exists to the page, or material aggregated from this other site. When a reader clicks on the link to read the original material, it would send a share of the ad revenue to the author of the linked webpage.

This avoids the tragic flaw of the current model, paywalls, being explored by several newspapers, of trying to charge their readers. Users will not pay for the material. There are too many other free sites, and the users have too much experience of free material to accept charges unless there is a real value added, as with many databases. Readers continue to access the material free of charge. The revenue continues to be generated by the advertisements. And the distribution turns out to be easy on the Web. This is something Internet browsers are very good at doing. They can easily spot a visitor to a website and Ka-ching make a little note that this page rings up a micro-payment for this http site and that http site on the page. The bookkeeping is taken care of automatically, in the same way that it is done now, with the ads. The original payment is split off, among the various pages to which the reader links as she reads, giving a fair share to all the authors, or photographers or artists whose work contributed to bringing the reader to the page which brought the viewer to see the ads.

Newspapers would be able to receive money for all the times websites link to their pages for either the stories or photographs, if there are ads at the websites. They would also be responsible for paying a share of their ad revenue for any links they use on their pages. Websites like Out of the Jungle, which have no ads would not generate any revenue to share (at least as far as I understand the program). I would also guess that any links to our little website would be so small as to amount to such a small payment as to be not worth cutting a check. But Conley's point is that scholars' sites would not be impeded. He has a nice wind-up:

While the numbers may need to be tweaked, the goal of linkrights is a return to market balance: You get what you pay for, and you pay for what you get. The establishment of linkright law would do much to restore order to the ether universe. Hey, it may even save old-media dinosaurs like this one, which provide a public service with their expensive reporting.

I, too, would grieve for the loss of newspapers, both the Chronicle of Higher Education, and such as the Boston Globe or The New York Times, or even smaller ones such as the St. Louis Post Dispatch or the Lexington Herald Leader. At different points in my life, all of these (but the NY Times) have been my home town paper. I have been a subscriber and read them every day. They serve important roles in their communities, not only with news and local investigative reporting, but as a kind of community glue. It would be a terrible shame to lose that.

Educational Entrepreneurship

My husband pointed out this article in yesterday's New York Times. There are many teachers in his family, and he thought it was interesting to learn that

[T]thousands of teachers are cashing in on a commodity they used to give away, selling lesson plans online for exercises ... While some of this extra money is going to buy books and classroom supplies in a time of tight budgets, the new teacher-entrepreneurs are also spending it on dinners, mortgage payments, credit card bills, vacation travel and even home renovation, leading some school officials to raise questions over who owns material developed for public school classrooms.

There are philosophical issues as well as ownership issues. One professor of education quoted in the article feels that "online selling cheapens what teachers do and undermines efforts to build sites where educators freely exchange ideas and lesson plans."

The article doesn't explicitly raise the issue of work for hire, but I think it should have been mentioned. Teachers are employees, and one could argue that the work they do in the course of their employment belongs to their employers. The Copyright Office has a useful circular on work for hire, but it doesn't mention teachers, and one can also refer to section 101 of the Copyright Act for a definition of work for hire. It's a slippery concept, however, and the law is by no means settled. I have always believed that I hold the copyright in the original materials I have created for my Advanced Legal Research course (topic outlines, exercises, etc.). I am happy to share my materials with others, but I like to be credited. Does my university believe that it holds the copyright to my course materials? I don't know, because the question has never come up. When I started teaching, I solicited syllabi from other legal research instructors and built upon them. Would I have paid for them? I'm not sure, but it wasn't an option in those days. One of my colleagues suggested that she could envision a situation where one had to subscribe to get updated course materials, but where older materials were available for free.