No doubt folks have seen at least 1 of the growing video remixes of Hitler in the bunker. Well here's a new one from Critical Commons that highlights digital scholarship, open courseware, and fair use. Nicely done.

Critical Commons provides information about current copyright law and its alternatives in order to facilitate the writing and dissemination of best practices and fair use guidelines for scholarly and creative communities. Critical Commons also functions as a showcase for innovative forms of electronic scholarship and creative production that are transformative, culturally enriching and both legally and ethically defensible. At the heart of Critical Commons is an online tool for viewing, tagging, sharing, annotating and curating media within the guidelines established by a given community. Our goal is to build open, informed communities around media-based teaching, learning and creativity, both inside and outside of formal educational environments.

Harvard Law professor Charlie Nesson, in a recent conversation with ArsTechnica, argued that file-swapping is fair use. The context for this conversation was that Nesson and others from harvard Law School are defense attorneys in the case of Recording Industry Association of America (RIAA) v. Joel Tenenbaum, a case where the RIAA is suing Tenenbaum for allegedly downloaded seven songs from a file-sharing network. In the interview with ArsTechnica, Nesson was laying out his strategy for the case.

While I -- admittedly a non-lawyer! -- think this is quite an elegant argument, other "free culture" academics seem puzzled by Nesson's strategy. Wendy Seltzer, who heads up the Chilling Effects clearinghouse and served as an EFF staff attorney, was quoted as saying, "I fear that we do damage to fair use by arguments that stretch it to include filesharing—weakening our claims to fair use even for un-permissioned transformations. I am much more comfortable disagreeing with the law than claiming at this point in time that it already excuses filesharing."

Jim, James, Dan: Dan, you are right, I should have used "fair use" rather than "public use." in my blog entry. Sorry about the confusion. However, my observations still stand. Libraries do not act on behalf of individuals in terms of "fair use." It is up to individuals to be responsible custodians of how they might use library material. Most, if not all, libraries warn their community that there are limitations on ways library material can be distributed or duplicated. And these limitations are often embraced by agreements with vendors. These limitations govern how libraries lend material through interlibrary loan, circulate material to non-primary users outside our communities, reproduce or digitize material for reserve collections in academic libraries, and libraries post clear warnings on photocopiers that certain forms of duplication and redistribution are illegal. The burden for responsible license and copyright use still rests with the individual. It is in this context that I frame my comments about the library's role.

And James, I understand the essential link between the legal and economic nature of licensing and/or copyright -- and surprisingly, we both agree libraries abandoned their role and lost an opportunity to recreate a critical public service role in the matrix when their collections began to digitize through a complicated public/private partnerships. And we both agree the future of the FDLP depends on how well we manage this collections/service responsibility.

Jim and James -- I think we can all agree that the future of libraries depends on how they deploy the dynamic between collections and services in a digital world. Where reasonable people can disagree, I hope, is the relative importance of one or the other. One faction might argue collections are still paramount; other perspectives may consider collections to be not as important (or differently important) for the future. It is clear the four of us will disagree about where this set point might rest. However, to equate the difference between our two perspectives as a measure of how the opposing perspective advocates the destruction of libraries ... well, I do not think we need to go there. My observations, speculations, and rhetoric does not advocate destruction. They are supposed encourage debate, reflection, and exhortation to action. Judging from your thoughtful responses, this goal is being achieved.

I am going to step back from this rhetorical point and get back to commenting on the future possibilities of government information in our libraries. I am sure we will join forces again over these considerations, but I think all of our perspectives have been underscored enough for the moment.

See you on Day 35.

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.

Thought you had a handle on the concept of copyright? Think again! Last week there was a post on Slashdot entitled, "Should Copyright Be Abolished?" by Greg Bulmash (full article posted on his blog, "Brainhandles"). I think this discussion has relevance to government documents and libraries in general, since we are steadily moving away from a copyright information world and into a licensing information world. I'm trying to get my head around this shift and so welcome the reading material. The ideas of attribution, distribution, DRM, fair use, licensing, public domain... all feature prominently in this discussion.

Bulmash waded into the copyright debate, taking on those in the tech community that seek to abolish copyright. The gist of Bulmash's argument was that "you can't oppose copyright and support open source." Bulmash opines that the GNU Public License, the license under which much open-source software is distributed (there are several flavors of open source licenses, but I won't get into that here), depends on copyright to be enforceable. Therefore, you can't have the GPL without copyright. Bulmash argues for reforming copyright, not abolishing it -- "surgery, not euthanasia."

These members of the anti-copyright crowd cite the GPL (GNU Public License) as an alternative to copyright without any sense of the ironic fact that the GPL can't exist without copyright. They're proposing a solution while simultaneously advocating the destruction of the thing that makes their solution workable. While the GPL is less restrictive than other licensing methods, it's a license and it does impose some restrictions on or conditions for use of the work. It is a method of controlling your work. But without copyright, the GPL could not be enforced.

Bulmash was answered the next day by Karl Fogel of Question Copyright in his essay, "Supporting Open Source While Opposing Copyright." Fogel makes a very compelling argument that the abolition of copyright doesn't necessarily go against the spirit of the GPL, nor does the GPL need to rely on copyright in order to forward the cause of open source or free software (two different, but conflated ideas!). He suggested that Bulmash, "mixes up two completely different concepts: the right to be credited for a work, and the right to control distribution of that work." Fogel goes on to state that copyright is simply the current enforcement tool du jour, but is not a natural and uncontroversial "right."

The basic argument of copyright abolitionists is that people should be free to share when sharing does not result in any diminution of supply. The GPL simply uses copyright law in a jiujitsu-like manner to enforce this principle, in a legal environment where sharing is prohibited by default and must be explicitly permitted to be legal. All the GPL does is create a space where permission to share is enforced. Take his exercise in imagination all the way: imagine if we had laws that did away with most prohibitions against sharing, but that enforced crediting and permitted authors to enforce GPL-like provisions requiring sharing.

and...

Put bluntly: a future law that merely allows authors to enforce sharing need have little in common with today's laws that allow the restriction of sharing. Since these two things are more opposite than alike, calling them both "copyright" doesn't make much sense. But that is what Bulmash does, when he implies that the current copyright regime (or something structurally similar to it) is the only way the GPL could be enforced.

There are some great comments in both threads so if you have the time, brew a pot of tea, sit down and wade through them. You'll be glad you did because this debate definitely has import to what librarians do!

Mary Minow of Library Law fame announced today that the transcripts from January's Section 108 Study Group roundtables have been published. Minow particapted in the session on ILL, and she shares her thoughts on her blog.

Representative Rick Boucher (D-Va.) and Rep. John Doolittle (R-Calif.) indtroduced a bill last week (H.R. 1201 "Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007" (FAIR USE Act) that would make it easier for scholars to use copyrighted works without running afoul of copyright law. The legislation contains several improvements to the Digital Media Consumer's Rights Act, similar legislation which the lawmakers introduced in the 108th and 109th Congresses. The Electronic Frontier Foundation (EFF) has endorsed the bill while the Recording Industry Association of America (RIAA) says it would "legalize hacking." Anyone care to editorialize?