As noted here before, Oregon has been going through a challenge to its copyrighted statutes. The battle appears to be over now and the the statutes are free! mmmm... we love free government information!

On June 19th the Legislative Counsel held a hearing with activist Carl Malamud from Public.Resource.org and others to discuss the issue.... In the end the Legislative Counsel voted to not assert copyright over the Oregon Revised Statutes.

This is a great victory for openness and democracy.

100 years ago today (June 1, 1908) the First-sale doctrine was established in the US Supreme Court case Bobbs-Merrill v. Straus, and became codified into the Copyright Act of 1976 (17 U.S.C. § 109). First sale doctrine -- which allows the purchaser of a copyrighted work to sell or give away that work without permission once it has been obtained -- is the pillar and copyright protection upon which libraries have been able to build their collections and services to their communities.

Ironically, today libraries find themselves in an untenable situation. The First Sale Doctrine continues to move toward the margins as more and more information goes digital. Much of this content is not protected by first sale because libraries license access from vendors. Perhaps that's why Ross Dawson, on his extinction timeline, has libraries going extinct in 2019, a year before copyright itself. Or maybe Slate's slideshow "borrowed time" is closer to being right when they describe the future of libraries as a "mutating role as urban hangout, meeting place, and arbiter of information, the public library seems far from spent."

I'm hopeful about the future of libraries, but think that librarians need to be more conscious and proactive about digital content, to negotiate licenses with vendors that allow for perpetual access -- if not actually being able to host digital content on their own servers -- as well as libraries being able to share their content with other libraries (aka interlibrary loan) and "shelve" or repurpose their digital content in ways that serve their local communities. Only if digital content has the same first sale protection as paper content will libraries continue to serve their traditional (and critical) role as cultural repositories.

[Thanks for the heads-up Everybody's Libraries!]

Mary Minow writes that a significant part of the Copyright Remedy Clarification Act of 1990 (CRCA) has been struck down by a California Southern District Court ruling.

In 2006, a marketing research firm sued the CSU system. It alleged that San Diego State University, which had been hired in 2004 to perform annual fiscal impact analyses for the Holiday Bowl games (SDSU had been hired because the marketing research firm, which had performed the analyses previously, had increased its fees), had misappropriated and plagiarized the marketing research firm's earlier reports.

The CRCA reads, in part, that "Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State ... shall not be immune, under the Eleventh Amendment ... from suit in Federal Court ... for a violation of any of the exclusive rights of a copyright owner ...."

In theory, this means that states are now in the clear from being targeted by the federal claims that the CRCA was worded to allow. As the District Court ruling states, "The CRCA was passed with the intent to subject states to liability for copyright infringement."

The major wrinkle is that the ruling appears to protect only state agents or employees who are acting in their "official capacity." As Minow's post points out, there are any number of steps that a plaintiff could take to establish legally that a state employee was not acting in his or her "official capacity." The most germane step would be that an individual sued under federal law (and the CRCA being federal law) can be classified as having acted in his or her "individual capacity" if the plaintiff can establish that an alleged violation was in contravention of protected federal copyright.

The ruling, Marketing Information Masters Inc. v. The Board of Trustees of the California State University System (.pdf), is here. More pleadings in the case are available here.

Air Force lawyers have issued a DMCA take-down notice to YouTube (here's the PDF of the DMCA notice), demanding the removal of a publicly available video promoting its Cyber Command project. There's only one problem with that: material produced by federal agencies is by law in the public domain and not copyrighted. And the Air Force website has a privacy policy that states, "Information presented on the Air Force Recruiting website is considered public information and may be distributed or copied."

It's cyber war! Lawyers representing the Air Force's elite electronic warriors have sent YouTube a DMCA takedown notice demanding the removal of the 30-second spot the Air Force created to promote its nascent Cyber Command. We'd uploaded the video to share with THREAT LEVEL readers.

There is a good article in Searcher Magazine that documents specialists and other interested in public domain materials should read:

Title: 'Copyfraud' and Public Domain Works.

Author: Ebbinghouse, Carol

Source: Searcher; Jan2008, Vol. 16 Issue 1, p40-52, 9p

Ms. Ebbinghouse does a good job of explaining how some try to usurp the public domain through fraudulent notices and/or slight alterations of materials. Her opening gives a good flavor of what's to come:

You find a PDF version of the Federalist Papers on the internet that is just what you need, but it carries a copyright date of 2001. Now that's odd, considering that the last Federalist paper was written and published in 1788. Cautious, you find an ASCII text version, but it has a copyright date of 1999. Can you download this one? Does the fact that one is an image and the other plain text make any difference? And how the heck does anything written in the 18th century end up with post-1923 copyright dates?

Can someone legitimately move public domain text into copyright? What about when you go to an archive, only to find open source and nonpublic domain titles mixed in with public domain items, but the archive seems to put restrictions on your subsequent use of everything (no copying without permission; no commercial re-use, etc.)?

What leads some vendors to attempt to convince people that public domain materials are really under copyright? In part, because there's little legal cost to doing so, According to Ms. Ebbinghouse:

As Jason Mazzone points out, "Copyright law suffers from a basic defect: The law's strong protections for copyrights are not balanced by explicit protections for the public domain. Accordingly, copyright law itself creates strong incentives for copyfraud. The limited penalties for copyfraud under the Copyright Act, coupled with weak enforcement … give publishers an incentive to claim ownership, however spurious, in everything. Although falsely claiming copyright is technically a criminal offense under the Act [17 U.S.C. §506(c)] prosecutions are extremely rare. Moreover, the Copyright Act provides no civil penalty for claiming copyrights in public domain materials. … [and] no federal agency is specially charged with safeguarding the public domain."

Reading this paragraph gives rise to an interesting idea. What if there were substantial fines for removing works from the public domain and the fines were used to run an orphan copyright registry that people could use without fear of prosecution. What if the American Library Association could get together with large foundations and start suing corporations for violations of the public domain? Would it lead to a world where if you weren't certain of a work's, you presumed it was public domain for fear of the consequences of an illegal claim of copyright? We could live with that.

Waking up from that daydream, I want edto point out this articles to readers of FGI because so much government information is both public domain and often repackaged as being in copyright. And occaisionally like the first edition of the Iraq Study Group report, government documents have copyrighted materials embeded into them. Ms. Ebbinghouse's article can help you navigate these difficult issues and help you deal with the copyfrauds out there.

An economic study funded by the Canadian government has concluded that heavy Peer-to-peer (P2P) users buy more music, not less as had been posited by entertainment industry organizations like the MPAA and RIAA. Michael Geist, Canada Research Chair of Internet and E-commerce Law at the University of Ottawa, has more background on his blog.
And why, you say, should FGI care about a Canadian study about file-sharing technology like Napster? Because this technology, a fundementally different 'Net architecture -- and one that looks and acts like a library consortium! -- is currently the architecture being used in LOCKSS and could be widely employed to much positive effect by libraries to build and share digital collections, that's why :-)
However, P2P has been under attack from entertainment industry organizations paranoid about copyright infringement. The attack has been so fierce that some states have begun looking into legislation against P2P (On September 16, 2004, Governor Schwarzenegger signed executive order S-16-04 charging the CA state CIO with the development of a statewide policy on P2P technology. See my P2P backgrounder for more). So legislation against P2P and the perpetuation of equating P2P with "piracy" has a deleterious effect on libraries and other cultural institutions trying to build systems of better digital access and preservation for  the public.

• When assessing the P2P downloading population, there was "a strong positive relationship between P2P file sharing and CD purchasing. That is, among Canadians actually engaged in it, P2P file sharing increases CD purchases." The study estimates that one additional P2P download per month increases music purchasing by 0.44 CDs per year.

• When viewed in the aggreggate (ie. the entire Canadian population), there is no direct relationship between P2P file sharing and CD purchases in Canada. According to the study authors, "the analysis of the entire Canadian population does not uncover either a positive or negative relationship between the number of files downloaded from P2P networks and CDs purchased. That is, we find no direct evidence to suggest that the net effect of P2P file sharing on CD purchasing is either positive or negative for Canada as a whole."

The Impact of Music Downloads and P2P File-Sharing on the Purchase of Music: A Study For Industry Canada 
 

I thought folks here would be interested in reading about the history of copyright (plus I really like the title of the thesis!). Eric Anderson has put his dissertation, "Pimps and Ferrets: Copyright and Culture in the United States, 1831-1891" online under a Creative Commons license. I notice he's at Bowling Green University, home of the Browne Popular Culture Library, an amazing repository of American popular culture (post 1876). If you ever find yourselves in Western OH, do take a trip to the library!

Title: Pimps and Ferrets: Copyright and Culture in the United States, 1831-1891 Author: Anderson, Eric Degree: Doctor of Philosophy (Ph.D.), Bowling Green State University, American Culture Studies/History, 2007. Advisor: Philip G Terrie Pages: 231p. Abstract: How did people think about copyright in the nineteenth century? What did they think it was? What was it for? Was it property? Or something else? How did it function? Who could it benefit? Who might it harm? Pimps and Ferrets: Copyright and Culture in the United States, 1831-1891addresses questions like these, unpacking the ideas and popular ideologies connected to copyright in the United States during the nineteenth-century. This era was rife with copyright-related controversy and excitement, including international squabbling, celebrity grandstanding, new technology, corporate exploitation, and ferocious arguments about piracy, reprinting, and the effects of copyright law. Then, as now, copyright was very important to a small group of people (authors and publishers), and slightly important to a much larger group (consumers and readers). However, as this dissertation demonstrates, these larger groups did have definite ideas about copyright, its function, and its purpose, in ways not obvious to the denizens of the legal and authorial realms. This project draws on methods from both social and cultural history. Primary sources include a broad swath of magazine and newspaper articles, letters, and editorials about various copyright-related controversies. Examining these sources – both mainstream and obscure – illustrates the diversity of thinking about copyright issues during the nineteenth century, and suggests alternative frameworks for considering copyright in other times.

[Thanks Copyfight]

Yes we've talked a lot and linked a lot to Laurence Lessig but only because the issues he raises in terms of copyright are so compelling, especially for librarians. Here's a clip of his recent talk at the TED Conference in March, 2007, "How creativity is being strangled by the law." This will probably be his last public presentation about copyright seeing his much written-about announcement of a shift in academic focus from copyright to corruption. While we will miss his voice in support of the public domain -- not to mention his work with creative commons and the hilarious remixes -- we look forward to his no-doubt-equally-provocative presentations on his new bailiwick. Enjoy!

Copyrights -- Do They Have a Future in the Internet Age?
There was a talk recently about the future of copyright (ok, October 24, 2007, 12:15 - 1:45 pm) from an economist and a writer.  Click on the link above to access the audio of this panel. Their perspectives inform the overall copyright debate currently being hashed out in lots of different communities.
 
Copyrights have been one of the main mechanisms for financing creative and artistic work for centuries. However, the development of digital technology and the Internet has brought about growing legal and practical challenges to copyrights. This debate answered the following question: "Are copyrights still useful or should we look to alternative mechanisms to support creative and artistic work?"
 
With Gerard Colby, President of National Writers Union, and Dean Baker, Co-director of Center for Economic and Policy Research. Moderated by Jo Freeman, of UAW Local 1981/ AFL-CIO and Washington, DC chapter of the National Writers Union.

I found this video on the Government Accountability Office website. It tells what GAO does through short news clips that appear in my total layman's opinion to be well within traditional fair use guidelines. As a video produced by the Government Accountability Office, an arm of the US Government, the video itself should be public domain.

Because of this analysis and because I think the GAO story is too good to stay locked up in a corner of its web site, I posted the video to YouTube, which is the embedded video here. For preservation purposes and just in case that YouTube doesn't agree with my analysis of the copyright status of the video, I also posted it to the Internet Archive, which is a fierce supporter of the public domain and fair use.

Happy Friday! Please check out GOOD COPY BAD COPY - a documentary out of Denmark about the current state of copyright and culture. Our good friend Rick Falkvinge of the Swedish Pirate Party makes some extremely valid points about the need to balance individual privacy rights with copyright; right now, content owners like the RIAA and MPAA are stomping on individual privacy rights which is unacceptable to him and to many others. Many others on both sides of the argument make appearances on the film -- like Laurence Lessig, Siva Vaidhyanathan, and Dan Glickman (CEO of MPAA).

We'd love to hear your ideas and perspective about file sharing and copyright.

Carl Malamud, FGI's open govt hero, has done it again! In a recent letter to Marybeth Peters, the United States Register of Copyrights, Malamud and others have asked Peters to provide bulk access to a "vital public database" -- the copyright catalog of monographs, documents, and serials.

The letter recognizes that "sales of the database may be a significant source of revenue for the Copyright Office" and that "budgetary requirements or the assent of congressional oversight committees" might make it difficult to make the data available right away and offers an short term alternative of "...we would like to offer to set up a collective fund for purchase of a single copy of the database, making it available for anyone to use. This would provide a public distribution channel...." The letter also says, "We ask only that you help us clarify that there is no copyright on the database so that we may freely redistribute it."

The letter was signed by the Digital Library Federation, Harvard University Library, Public Knowledge, Stanford University Library, the Association of Research Libraries, the Internet Archive and others. For more see:

• Library Journal
• National Journal

The copyright catalog of monographs, documents, and serials is not a product, it is fuel that makes the copyright system work. Anybody should be able to download the entire database to their desktop, write a better search application, or use this public domain information to research copyright questions.

A price tag of $86,625 places this database beyond the reach of university libraries, small businesses that wish to provide a better copyright search service, and academics or citizens wishing to analyze the copyright registration process. Additionally, setting copyright restrictions on the copyright database, a “work of the United States Government,” runs directly counter to the well-established principle that such works shall be in the public domain.

I hope LC and the Copyright Office take this letter seriously and releases the database to the original owner, the public. However, I am not sure whether Ms. Peters will be amenable considering the post about her on BoingBoing a few days ago.

You may or may not remember that I posted a couple of weeks ago about Rick Falkvinge of the Swedish Pirate party giving a talk at Stanford. For those who missed the talk, the video is now available as well as several other talks that Rick did while traveling to the Open Source Convention and the Bay area.

Many thanks to Stanford Libraries and the Center for Internet and Society for co-sponsoring the talk and for Henrik Bennetsen and Galen Davis of the Stanford Humanities Lab for videotaping the well-attended and interesting event!

Leave us comments and let us know what you think about Rick's ideas for reforming international copyright.

Put this in your "picture is worth 1000 words" file. Can you guess the effect of HR 3155, the Intellectual Property Enhanced Criminal Enforcement Act of 2007? Thought so... But if you'd prefer to read about analysis of the proposed law, see "Copycrime Bill Raises its Ugly Head, Again" from the Electronic Frontier Foundation.

Today Creative Commons -- a non-profit organization founded by Laurence Lessig devoted to expanding the range of creative work available for others through copyright reform and the Creative Commons license -- announced ccLearn, a new division devoted to promoting the use of freely copyable materials for classrooms and education. The idea is that in order for Web technologies to truly have a revolutionary impact on education, there needs to be the development of "open educational resources (OER), which in their fullest form should be free, accessible, authoritative, and derivable." Makes perfect sense, no?

Our mission is to minimize barriers to sharing and reuse of educational materials — legal barriers, technical barriers, and social barriers.

• With legal barriers, we advocate for licensing of educational materials under interoperable terms, such as those provided by Creative Commons licenses, that allow unhampered modification, remixing, and redistribution. We also educate teachers, learners, and policy makers about copyright and fair-use issues pertaining to education.
• With technical barriers, we promote interoperability standards and tools to facilitate remixing and reuse.
• With social barriers, we encourage teachers and learners to re-use educational materials available on the Web, and to build on each other’s contributions.

[Thanks BoingBoing!]