The Rule of Law and Copyright's Distribution Right

As Bill Patry reports, District Judge Michael Davis has asked for briefing on whether he must order a new trial in the best-known P2P copyright infringement case against an individual. The reason is that Judge Davis is properly concerned that he committed legal error by accepting the RIAA's proposed jury instruction that equates the copyright owner's right of public distribution with a right of merely making copies available for distribution or reproduction.

Although it won't, the RIAA should welcome this development because the RIAA's effort to misconstrue the distribution right is another example of "be careful what you wish for."

If courts take the RIAA's argument seriously, which some have, then you or I have the right to download a DRM-free music file from Amazon or Apple or Napster or . . . and share that file with anyone over a P2P service. Huh? How can this be, you ask.

Well, if you, I, or a federal court, takes the language of the Copyright Act seriously, as we should, and if the RIAA's reading of that language were right, then it would work like this. Copyright automatically gives the owner a set of five exclusive rights, with some exceptions for certains types of works: (1) reproduction; (2) distribution; (3) public performance; (4) public display; and (5) adaptation (i.e. the right to prepare derivative works).

In a series of cases against users of peer-to-peer services, the RIAA has argued that to prove infringement of the distribution right, the owner does not need to prove whether any music files in a user's shared directory were copied or when they were copied because merely putting the file in such a directory and connecting to the Internet is enough to violate the exclusive right of public distribution.

The industry has a number of reasons for making this argument, one of which is that the argument makes it much cheaper to prove the industry's many infringement cases against individuals. But most of Section 106 of the Copyright Act was written without digital technology in mind, and courts have to apply the law as Congress has enacted it. If changed circumstances mean that the statute doesn't work the way it once did, courts can use the flexibility inherent in language to adapt the law, but at some point that flexibility is exhausted. If you think the law no longer works, you have to go back to Congress.

In my view, circumstances have changed so that the law no longer works the way it once did, but the reproduction right under the Copyright Act still gives music copyright owners sufficient protection without needing to turn the distribution right into a separate "making available" right. The RIAA is, of course, free to take a different view, but it has to persuade Congress that it's right. Persuading Congress to change the law is expensive and time consuming, and so industry would rather that courts simply give it this new right through creative statutory interpretation.

This kind of expedient thinking is deeply problematic. The RIAA routinely excoriates users of peer-to-peer services for failing to respect the rule of law. But the RIAA's "making available" argument is so at odds with the language of the Copyright Act that it calls the industry's own respect for the rule of law into question. Here's why.

The Copyright Act created separate rights of reproduction and distribution so that the copyright owner could go after the different links in the supply chain of an infringing enterprise. In the days of vinyl, the folks who manufactured bootlegs and unauthorized copies were not always the sellers on the street. So the reproduction right gives the basis for suing the manufacturer and the distribution right provides the basis for going after the retailer.

Specifically, Section 106(3) gives the copyright owner the exclusive right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending." This language breaks down into three elements that the copyright owner must prove to show infringement: (1) the transfer of "copies or phonorecords of the copyrighted work" (2) "to the public" (3) "by sale or other transfer of ownership, or by rental, lease, or lending."

There is no way that merely connecting to the Internet or to a peer-to-peer service with files stored in one's shared directory can be said to be a transfer of those files to the public. The RIAA's argument relies on some statutory sleight-of-hand by which it tries to substitute the definition of "publication" for the plain language of the distribution right in Section 106(3).

Although a few courts have accepted this argument, the tide is now running the other way. It'll be interesting to see how far it runs. If we really take the statute seriously, then, as I and others before me have argued (footnote 52), the truth is that the distribution right simply does not apply to file transfers over the Internet because such interactions are not the transfer of one copy from user A to user B but instead a reproduction of user A's copy for the benefit of user B.

But, let's accept for the sake of argument that making a file available on a peer-to-peer service is a distribution. Then we have to apply all the parts of the Copyright Act that govern distributions because Section 106 says that the exclusive rights it provides are given "[s]ubject to sections 107 through 122". That means the first sale doctrine applies.

When it comes to the copyright owner's exclusive right to distribute copies, the copyright owner gets one bite at the apple. Make your money on the first sale of a copy. Once the user has purchased that copy, the distribution right is exhausted. So, even though a purchaser's resale of that copy to a used record store is technically a distribution of the copyrighted work, Section 109 of the Copyright Act says that the purchaser "is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."

So, here's where the DRM-free download comes in. If you or I purchase a copy (technically a digital phonorecord) of an mp3 file and store it in our shared directory, then the first sale doctrine applies to that file. And if making it available to others on a peer-to-peer service is a distribution, then under Section 109, you or I could legally distribute that copy to whoever wants it.

The RIAA would first say, ah, but you didn't actually purchase that copy. You only have a license to it. That theory, however, is going bust, as it did in the recent Vernor case.

The RIAA would then say, "no, no, no, you're not distributing that copy. You're letting others make their own copies."

Q.E.D.

Open Access Law - Danner Article

While we're on the subject of open access to law and legal scholarship, Richard Danner has written a very nice piece adapting the argument from John Willinsky's Access Principle to law and providing some interesting data regarding access to American legal scholarship.

Here's the abstract:

This article applies to legal scholarship the ideas developed and argued in John Willinsky’s 2006 book: 'The Access Principle: The Case for Open Access to Research and Scholarship' regarding the responsibilities of scholars to make their works widely available through open access mechanisms via the Internet. Willinsky’s access principle states that “A commitment to the value and quality of research carries with it a responsibility to extend the circulation of such work as far as possible and ideally to all who are in interested in it and all who might profit by it.” For Willinsky, the transformation of scholarly journals from print to online formats means that not only researchers and scholars, but “scholarly societies, publishers, and research libraries have now to ask themselves whether or not they are using this new technology to do as much as they can to advance and improve access to research and scholarship.”

This article considers the roles and responsibilities under the access principle of legal scholars and the institutions that support the creation and communication of legal scholarship for improving access to legal information The article begins with a presentation of Willinsky’s access principle, then introduces the movements for open access to law and to scholarship in other disciplines, addresses questions regarding access to the legal journal literature in the U.S., the U.K., and South Africa, discusses means for enabling access to legal literature through open access journals and scholarship repositories, and describes one law school’s experiences in providing open access to its own scholarship. It concludes with suggestions for law schools and law libraries wishing to pursue the implications of the access principle in their institutions.

The link to the article in the Duke repository is: http://eprints.law.duke.edu/1698/

Harvard Law Goes Open Access

I'm late with this post because I had to grade exams in time for my graduating students to, well, graduate.

Big congratulations to the faculty at Harvard Law School, which adopted the following policy on May 7, 2008:

“The Faculty of the Harvard Law School is committed to disseminating the fruits of its research and scholarship as widely as possible. In keeping with that commitment, the Faculty adopts the following policy:

Each Faculty member grants to the President and Fellows of Harvard College permission to make available his or her scholarly articles and to exercise the copyright in those articles. More specifically, each Faculty member grants to the President and Fellows a nonexclusive, irrevocable, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit. The policy will apply to all scholarly articles authored or co-authored while the person is a member of the Faculty except for any articles completed before the adoption of this policy and any articles for which the Faculty member entered into an incompatible licensing or assignment agreement before the adoption of this policy. The Dean or the Dean’s designate will waive application of the policy to a particular article upon written request by a Faculty member explaining the need.
Each Faculty member will provide an electronic copy of the final version of the article at no charge to the appropriate representative of the Provost’s Office in an appropriate format (such as PDF) specified by the Provost’s Office no later than the date of its publication. The Provost’s Office may make the article available to the public in an open-access repository.

The Office of the Dean will be responsible for interpreting this policy, resolving disputes concerning its interpretation and application, and recommending changes to the Faculty from time to time. The policy will be reviewed after three years and a report presented to the Faculty.”

Kudos!

Open Access White Paper

Science Commons and SPARC have teamed up on Open Doors and Open Minds: What Faculty Authors Can Do to Ensure Open Access To Their Work Through Their Institution. This is a White Paper directed to faculty and researchers interested in promoting open access policies at their respective institutions.

Thinh Nguyen, Science Commons counsel, wrote the paper, which explains why the policy adopted by the Harvard Faculty of Arts and Sciences breaks new ground in the movement toward open access. The paper then suggests practical steps that faculty can take to promote adoption of a similar deposit policy and institutional copyright license.

Creative Commons Ecuador

On Tuesday, April 22, 2008, I spoke at the launch of Creative Commons Ecuador, which was held in the context of a conference on measuring quality in distance education hosted by the Universidad Technica Particular de Loja. It was a great event attended by about 300 people. Video is here.

There's great enthusiasm for CC here, and the project team, led by Dr. Juan Jose Puertas, has done a great job. In the photo, Juan Jose is accompanied by the other team members, Veronica Granda Gonzalez (left) and Dra. Patricia Pacheco, all from the UTPL legal department. Carlos Correa Loyola, Director of the IT program, also provided support as did the Chancellor and Rector of the university, Fr. Luis Miguel Romero.

The university also announced its "Open UTPL" program, through which it will be putting course materials online under a CC Attribution Non Commercial Share Alike 3.0 license.

Ecuador joins an active Creative Commons community in Latin America. Check this out.

Felicidades!

Copyright in Higher Education

The first copyright statute was adopted by the English Parliament for the "encouragement of learning." How well is copyright doing that job today? Two stories from today's news provide different answers.

If learning is best encouraged by relying on for-profit academic publishing entities that compile educational materials, then it is proper for educators who create educational materials to transfer copyright to these publishers. These publishers can then use the author's copyright as a defense against incursions by professors who are sharing published materials with their students without requiring their students to pay. See http://www.nytimes.com/2008/04/16/technology/16school.html?ex=1366084800&en=d5bc680387807b8c&ei=5088&partner=rssnyt&emc=rss

If, on the other hand, in the age of the Internet learning is better encouraged by authors using their copyrights to create open educational resources designed for global, royalty-free sharing, then it is better for educators to hold on to their copyrights and license their materials accordingly. See http://www.insidehighered.com/news/2008/04/16/textbooks.

RFA 1: Copyright, Defamation, and Liability for Business Models

In the wake of the Supreme Court's Grokster opinion, legal scholars are analyzing when a business can be held secondarily liable for copyright infringement based on the likelihood or actuality that a business model requires a certain amount of infringing activity to be financially sustainable.

I would be interested to read an article considering the policy options related to business models that foreseeably attract, and apparently rely on, defamatory content. Shielded by Section 230 of the Communications Act, sites like Auto Admit, Juicy Campus, and Rotteneighbor invite users to post comments about other members of their respective communities. Relying on the pseudonymity offered by these sites, users have apparently been fairly brazen in posting defamatory comments harming the reputations of others.

Assuming Section 230 generally gets it right with respect to service provider liability, should a different standard apply when one starts a site that foreseeably attracts defamatory statements? Are these businesses using the reputations of others as part of their start-up capital? Is this just the price of free speech? This inquiring mind would like to know.

Reader-Generated Content?

I'm about to experiment with a new practice - the RFA (request for article). This is analogous to an RFC (request for comment) or RFP (request for proposal).

There are so many new developments related to the law and the Internet that I cannot pursue every idea that comes to mind about an interesting law review article. But I'd like to see the article get written. I'm not an Internet standard setting body, so an RFC, is in appropriate. And, I'm not in a position to commission an article, so an RFP doesn't work.

Hence, the RFA, which is backed only by a promise to read. If enough other readers make similar requests, perhaps we will generate the article we'd like to read.

NIH Public Access Policy - University Compliance

The revised NIH Public Access Policy goes into effect on April 7, 2008, and universities, medical research institutions, and other grantees have a compliance issue on their hands. If, after the effective date, NIH-funded investigators continue to sign many journal publisher's copyright agreements for articles reporting NIH-funded research, these institutions will be non-compliant with the new policy and continued funding will be at risk.

To mitigate that risk, I've written a White Paper on behalf of SPARC, Science Commons, and the Association of Research Libraries explaining the nature of the new copyright-related risk that NIH grantees face and identifying six options they have for managing that risk.

The White Paper, Complying with the National Institutes of Health Public Access Policy: Copyright Considerations and Options, is now available for download at http://www.arl.org/sparc/advocacy/nih/copyright.html.

Copyright and OA - Response to Stevan Harnad

Prompted by differences of opinion about the Harvard FAS policy, I want to clarify where Stevan Harnad and I agree and disagree about the relationship between copyright and open access.

I understand Stevan's position to be:

1. Open Access policies should conceptually separate a requirement to deposit an electronic copy of a post-peer-review manuscript in a repository from a requirement that the repository make that copy publicly accessible on the Web.

2. Deposit at the time the manuscript is accepted for publication should be unconditionally required.

3. Public access should be allowed any time the publisher's agreement says it may be.

4. If the publication agreement does not permit posting of the manuscript, a repository may still distribute copies by email whenever requested to do so by a user.

5. The combination of 3 and 4 effectively provide open access.

6. Those who argue that open access should also include an explicit public copyright license giving the public more than the right to read (e.g., the rights to republish or to translate or otherwise adapt the work) are mistaken. Either (a) these rights have already been implicitly granted by the public posting of the work; (b) they are not necessary to effective scholarly communication; or (c) even if they would marginally improve scholalry communication, the costs of negotiating copyright with publishers is not worth this benefit.

My response:

Points 1 and 2 are exactly right. Under U.S. copyright law, it is a fair use for an author to send, and for a repository to make, an archival copy of the post-peer-review manuscript. I think it's also a fair use to make an archival copy of the published version of the article. Copyright law in many other parts of the world also would deem this to be legal.

Deposit mandates are highly desirable. Please note that under the Harvard policy, even if a faculty author feels it necessary to seek a waiver of the copyright license to Harvard, there is no reason that author couldn't and shouldn't deposit a copy of the manuscript in the repository.

With respect to public access, I disagree that faculty authors should simply adapt themselves to the arrangements that publishers offer/demand. Moreover, I have have a different view about what those arrangements permit.

So, on point 3, I agree insofar as authors should use all legal rights they have to make their work freely accessible on the Internet. If a publication agreement gives the author the right to post the work in a repository, the author should do so and the repository should make the work freely accessible.

However, I don't think that the starting point for the analysis should be what the publisher's form says. I think authors have an obligation to consider whether signing the publisher's form is ethical behavior.

Copyright is an author's right granted to the author by the public to achieve a public purpose - the promotion of science and useful arts. (I realize that many have a natural rights view of copyright's purpose. I don't share that view.) With rights come responsibilities. Authors of scholarly journal articles do not need the promise of a royalty to have an incentive to perform research or report the results and their analysis of that research. So although the premise of one-size-fits-all copyrights is that authors need exclusive rights to be stimulated to create, that premise is largely false with respect to much scholarly research.

Journal article authors know that they will not receive a royalty nor will those who provide referee services. Instead, the progress of science and useful arts is driven by these authors' desire to achieve broad dissemination of their research. The Internet opens up a (not so) new avenue of scholarly communication. Thus, journal article authors have a duty to consider whether they are making proper use of the copyrights that the public has given them when they agree to the terms of a publisher's agreement that limit how, when or where the author may provide free access to their work on the Internet.

I have a different understanding about the legal consequences of number 4, and therefore I also do not agree with number 5.

As for number 6, clarifying re-use rights through public licensing is desirable. If his view is (a) or (b) I disagree. If his view is (c), however, I agree that the effort necessary to achieve this goal should be subject to cost-benefit analysis. Under current circumstances, where subscription-funded publishers have shown some willingness to permit free access to post-peer-review manuscripts but have not been willing to agree to public licensing, I think an author could responsibly decide to be satisfied with a copyright agreement that permits free access but does not provide for re-use licensing.

Harvard policy - Response to Stevan Harnad

Stevan Harnad is a forceful advocate for open access, and I agree with most of what he advocates. I do have a different view than he does about the connection between open access and copyright and his analysis of the Harvard policy calls this to the fore.

My response is essentially the same as Peter Suber's. I'll add that Stevan characterizes the policy as reservation of rights. I think that's mistaken. Under the policy, the author continues to own all of the exclusive rights under copyright and remains free to transfer all of them to a journal publisher.

What the Harvard policy calls for is a non-exclusive license, which is the same thing as permission. All that the FAS have done is agreed that they have granted Harvard permission to post their work in the repository and that Harvard may grant others similar permission so long as copies are not being sold for a profit.

NIH and Harvard - It's About Values

If it hasn't started yet, there's going to be grumbling soon enough when the reality of the NIH and the Harvard Faculty of Arts & Sciences ("FAS") policies set in. These policies require that faculty authors treat that moment when they are about to sign a journal publisher's copyright transfer agreement as an Aretha Franklin moment. The author has to hear the members of the underserved audience who will be denied access if that form is signed. The author has to hear, "You better think (think) think about what you're trying to do to me."

We should expect that under the NIH and FAS policies, some faculty will chafe when they can't just sign the publisher's form and have have to start using a contractual addendum or some other legal notice in response. They'll become even more exasperated if publishers respond by amending the amendments. As masters within their respective domains, faculty are likely to feel some frustration reflecting discomfort with the unfamiliar, and perhaps alienating, legal language in both the publisher's form and the addendum.

The key point is that this really is not a technical conversation. It's a conversation about values. Contractual language is designed to capture a shared understanding among the parties, and the likely back-and-forth about copyright reflects a difference of opinion about the value of public access to scholarly thought and research. The point of the back-and-forth over copyright is to persuade the publisher to accept NIH's and FAS commitment to equitable access to scholarly research or to force the publisher to reveal that it operates under a different set of values.

So while it may be tedious or uncomfortable for a faculty author to have to carefully read the language of any agreement or addendum, that author must do so to effectively express the shared values of the Faculty of Arts & Science in Harvard's case and the American people's in the NIH case.

Open Access - Who's Next?

Among universities in the United States, Harvard has just increased its competitive edge by adopting a faculty resolution to grant the university a license to make faculty scholarship freely accessible online. (Funders and institutions elsewhere in the world are already on a roll, and a recent report from the European University Association recommends self-archiving in 791 European universities.) What are the competitive advantages?

1. There is reason to believe that the impact of, and citations to, Harvard scholarship will increase because it is freely accessible.

2. Harvard researchers will be able to use the rich archive of Harvard scholarship to experiment with for a variety of purposes, including developing new research tools.

3. Harvard librarians will get greater expertise than exists at competing institutions at developing, managing, and adding value to the university's digital library because they will have a regular flow of new scholarship to manage.

4. Young academics should be attracted to the institution as prospective faculty members, graduate students or other kinds of researchers for the signal that this initiative sends. The Faculty of Arts and Sciences, at least, seems to get the Web.

Faculty at competitor institutions should take note. There's an early mover advantage to be had here. Who's next?

Open Access - Harvard - Author Education

The power of the Harvard policy is that the authors are precommitting themselves to open access (subject to the waiver option), and that means when it comes time to publish an article, they must alert their publishers to the fact of the previously granted license to Harvard.

One way they can do this is to use one of the author's addenda available through the Scholar's Copyright Addendum Engine, which specifically requires publishers to acknowledge previously-granted licenses to a funder or to the author's employing institution.

The risk of not doing is so is that it may be that the author is making a misrepresentation to the publisher by purporting to transfer more rights than s/he can.

But, there's really nothing new here except that the licensee is the university instead of a funding agency. Government-funded researchers have been in this situation for decades. All government funding agencies (not just NIH) are required by OMB regulation to take a non-exclusive copyright license to any works created under a grant or cooperative agreement with a university. The government receives this license at the moment the work is created, just like under the Harvard license.

These government funded authors have been routinely signing copyright forms that appear to conflict with the government's previously-granted license. Legally, there are two options for characterizing what's been happening all these years. (1) These authors have routinely been breaching their contracts or have routinely been guilty of fraudulent inducement to contract by misrepresenting the rights they have; or (2) even though the text of the publisher-drafted copyright form says that the author represents that s/he is transferring all rights under copyright free from any licenses, that explicit text is actually subject to an implied term recognizing the previously-granted license.

Under the second interpretation, the boilerplate in the one-size-fits-all form is not controlling so long as the publisher is aware that the author is a government-funded researcher. The publisher should be aware of the government's license, and so by accepting the article, the publisher impliedly acknowledges that it is taking copyright subject to the government's license.

I prefer interpretation #2, and I think this is how a court would apply the law, but this is just an opinion. So we've been living in a world where authors should have been alerting their publishers to previously-granted licenses for a long time. Perhaps this new attention by faculty to their copyrights will lead them to address this practice as well.

Open Access - Harvard - Impact on Librarians

One reason why the Harvard Faculty of Arts and Sciences was wise to pre-commit themselves to grant a license to the university in articles they will write in the future is that this license empowers the librarians to seed and to manage the institutional repository in a much more robust way.

The license applies going forward so that at the moment a faculty member finishes the first draft of an article, the university has a license. Any subsequent transfer of copyright to a publisher is subject to this license unless the faculty member requests that the university waive the license with respect to that particular article.

So the librarians at Harvard will no longer have to decipher publisher agreements or the RoMEO/Sherpa list or the OAKlist to know whether an artictle can go up in the IR. Unless the policy has been waived, any article written henceforth by an FAS faculty member can and should go in the IR. (The details of how this will work in practice have to be ironed out, but this motion establishes the legal framework for moving forward.)

[Note, this legal framework (except for the waiver) is exactly how it works with the NIH Federal purpose license (45 CFR 74.36(a)) for any NIH-funded authors.]

Open Access - Preliminary comments on the Harvard Initiative

[Disclosure: I've been a supporter of the Harvard initiative since its inception and have provided informal input to its proponents periodically along the way.]

How big a deal is this initiative by the Harvard Faculty of Arts and Sciences? It's huge.

First, this is a bottom-up initiative. Open access advocates have been working hard over the years to get faculty authors to pay greater attention to their copyrights. While faculties at various institutions have adopted resolutions supporting open access as a principle and as a goal, this is the first time that faculty authors as a group have stepped up and really acknowledged that the Internet matters and that business-as-usual publishing fails to take advantage of the Internet as a means for spreading knowledge throughout the world.

Second, by precommitting themselves in this fashion, the faculty has recognized that copyright is an author's right. With rights come responsibilities. These authors have committed to each other that they will take greater responsibility for managing their copyrights and for providing the public with free access to their work.

There are a number of heroes in this story. Within the administration, Steve Hyman, the provost, set up a faculty committee to study scholarly communication issues and practices. Stuart Shieber (Computer Science) chaired that committee and, along with his committee members, labored for more than a year to make this happen.

It is now up to faculty on other campuses to reflect on whether they too are willing to be responsible authors in the twenty-first century.

Open Access - Harvard Makes History

On Tuesday, February 12, 2008, the Harvard Faculty of Arts and Sciences came together as scholarly authors and collectively agreed that in the age of the Internet they have a responsibility to manage their copyrights differently than they have been to date.

Specifically they unanimously voted in favor of this motion:

The Faculty of Arts and Sciences of Harvard University is committed to disseminating the fruits of its research and scholarship as widely as possible. In keeping with that commitment, the Faculty adopts the following policy: Each Faculty member grants to the President and Fellows of Harvard College permission to make available his or her scholarly articles and to exercise the copyright in those articles. In legal terms, the permission granted by each Faculty member is a nonexclusive, irrevocable, paid-up, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit. The policy will apply to all scholarly articles written while the person is a member of the Faculty except for any articles completed before the adoption of this policy and any articles for which the Faculty member entered into an incompatible licensing or assignment agreement before the adoption of this policy. The Dean or the Dean's designate will waive application of the policy for a particular article upon written request by a Faculty member explaining the need.

To assist the University in distributing the articles, each Faculty member will provide an electronic copy of the final version of the article at no charge to the appropriate representative of the Provost's Office in an appropriate format (such as PDF) specified by the Provost's Office. The Provost's Office may make the article available to the public in an open-access repository.

The Office of the Dean will be responsible for interpreting this policy, resolving disputes concerning its interpretation and application, and recommending changes to the Faculty from time to time. The policy will be reviewed after three years and a report presented to
the Faculty.

Open Access - NIH

I'll have a lot more to say about the NIH mandate in the coming weeks. For now, here are the basics.

As part of the Consolidated Appropriations Act, 2008, Congress directed:

"The Director of the National Institutes of Health shall require that all investigators funded by the NIH submit or have submitted for them to the National Library of Medicine’s PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication, to be made publicly available no later than 12 months after the official date of publication: Provided, That the NIH shall implement the public access policy in a manner consistent with copyright law."

Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, Div. G, tit. II, Section 218.
NIH's response to this command is here: http://publicaccess.nih.gov/.

This policy requires two big changes in behavior to business-as-usual biomedical publishing. First, universities as NIH grantees can no longer remain indifferent to how their faculty authors manage their copyrights. Beginning in Fiscal Year 2008, it is a term and condition of an NIH grant award that the grantee (the university) will ensure that NIH receives (1) the electronic manuscript and (2) a copyright license to publicly distribute that manuscript no later than 12 months after the date of publication.

These are contractual commitments made by the university to NIH. The issue for the university is that both the manuscript and the copyright start out in the hands of the Prinicpal Investigator or author(s) working under the PI's direction. So universities have to get a process in place quickly for ensuring that the PI's or their authors don't take any action that puts the university in a position in which the university cannot comply with this term and condition of the grant award.

The biggest risk for universities and the PI's themselves is that authors will continue to routinely sign away copyright without reading the publisher's copyright transfer form.

The NIH requirement forces authors to take greater responsibility for their own copyrights. Some universities and some authors are likely to grumble about this. If it's really a problem, perhaps they should ask Congress to declare that federally funded research articles get no copyright at all - which is true for articles written by NIH employees. This was what Congressman Sabo proposed some time ago.

If these authors want the privileges of copyright protection, then they can't be heard to complain when NIH requires them to also accept the duty of managing their copyrights responsibly.

Big News for Open Access - Harvard and NIH

There are two big developments for Open Access going on right now. In December, Congress directed NIH to make its Public Access Policy mandatory, and NIH has set an effective date of April 7, 2008 for its new mandate.

Yesterday, the Harvard Faculty of Arts & Sciences adopted a historic open access policy by which they agreed to grant Harvard permission to post their scholarly works in the institutional repository and to make their work publicly available through other means.

I'll provide more details on each in separate posts, but we are now living in interesting times as far as the future of scholarly communication goes.

Please support Creative Commons

This has been a big year for Creative Commons:

• The amount of cultural works shared under a CC license continues to grow rapidly;
• Volunteers from more countries have ported CC licenses to work within their respective legal systems;
• Technology companies increasingly want to incorporate CC licenses into their business models;
• Our Science Commons project has made substantial progress on a tool for standardizing the exchange of biological materials for research and on demonstrating the power of the Semantic Web for open access; and
• We launched our ccLearn initiative with generous support from the Hewlett Foundation to give particular focus to the role that CC licenses play and can play in the creation and sharing of educational materials.

All of this requires the time and energy of our very talented staff, who, it turns out, require food, clothing, and shelter in order to do the great work they do. For that reason, I ask that you please contribute to the Creative Commons annual campaign and help spread the word. http://support.creativecommons.org/supportcc

We have great projects in the pipeline, but we can only bring these to fruition with your support. Thank you and seasons greetings.

Tax Problem for Commercial Publishers?

In arguments about open access, commercial publishers do their utmost to minimize rhetorically the value they receive from free articles and free labor by referees or peer reviewers and some editors.

When the audience changes, these same publishers have suggested to investors in the past that it is precisely because they don't have to pay for these critical inputs and that demand for their publications is relatively inelastic that their business is so profitable.

I wonder what story they tell the taxing authorities about whether these free inputs are part of their gross income? In the United States, "gross income means all income from whatever source derived," 26 U.S.C. s. 61(a). "Any source" would seem to include in kind inputs such as free articles of value and free labor. right?

There he goes again - Allan Adler on the NIH Policy

Once again, Allan Adler's back with the private market canard. Mr. Adler is vice president for legal and government affairs at the Association of American Publishers, which has organized efforts to quash the Open Access movement. Despite his best efforts, Mr. Adler and his allies failed to persuade Congress that it is good policy to make taxpayers pay twice for research articles that they fund.

Here's the packaged sound bite that he once again unwrapped and delivered to the Washington Post's Rick Weiss: "[T]here are some very serious questions to examine as to whether this is an unwarranted government intrusion into the private-sector publishing industry."

Government intrusion? Hmmm. Let's look at the facts. For this argument to make any sense one would have to ignore copyright law and forget that taxpayers are part of the picture. Mr. Adler has to do this because he's arguing that there's something wrong with a world in which he who pays the piper calls the tune. Because that's all that's going on here.

NIH funds the research and, under the bill language, would require public access to resulting research articles as a condition of funding. Under copyright law, the author starts out with the rights, and the NIH policy deals with the relationship between authors and funders. Mr. Adler's members operate in a market comprised of authors and publishers that depends for its very existence on research funded by other sources. Intrusion indeed.

NIH Policy - Action needed

First the good news. After years of work, Open Access advocates successfully persuaded both houses of Congress to include a provision in the Labor-HHS appropriations bill that would require NIH to make federally-funded research articles publicly available on the Internet no later than 12 monts after publication.

This victory should not be underestimated because the American Association of Publishers and its allies had pulled out all the stops, making repeated office visits at which they pedaled a broad range of legal and economic arguments that were rightly rejected by members on both sides of the aisle.

Now, the not-so-good news. As was expected, and as Peter Suber reports, for unrelated reasons, President Bush has vetoed the bill.

Passage of the LHHS bill was by close to a veto-proof majority, and it is now time to urge your representatives and senators to vote to override the veto of the LHHS Appropriations measure. Contact details for members of Congress are at: http://www.congressmerge.com/onlinedb/index.htm

Lucky Dube - R.I.P.

Awful news today. South African reggae star, Lucky Dube, was killed in a carjacking in South Africa in front of his 15-year-old son. He was very big when I lived in Zimbabwe, and his popularity has not waned. I hope that some good can come from this tragedy, and that the government of South Africa will address the causes and effects violent crime.

In "Victims," Dube wrote:

Didn't know she was crying
Until now as she turns to look at me
She said boy o' boy you bring tears to my eyes
I said what, she said
Boy o' boy you bring tears to my eyes

Bob Marley said
How long shall they kill our prophets
While we stand aside and look
But little did he know that
Eventually the enemy
Will stand aside and look
While we slash and kill
Our own brothers
Knowing that already
They are the victims of the situation

Radiohead and Pay What You Will

Radiohead has made an interesting move by releasing its new album on a pay-what-you-will basis. In an article I started drafting in 2000, I suggested that musicians can succeed under this model so long as purchasers think of the transaction as a show of support. Whether characterized as the "warm glow" of do-gooder consumption or as a refletion of the restitutionary impulse that Wendy Gordon argues is at the base of copyright law, it is not surprising that people are paying for something they can download for free.

The risk in this model is that the frame of the transaction depends on perceptions and norms. If the frame switches to that of neoclassical economics, in which consumers and producers are adverse parties competing for a larger share of surplus, then the model fails. Stephen King seemed to think his experiment along these lines was a failure, and if it was, it may be because he charged a specific price ($1) for each installment of his serialized novel.

Amateur Hour Conference - 11/2/07

On November 2, 2007, New York Law School’s Institute for Information Law & Policy will host the inaugural Amateur Hour Conference to bring together leaders in business, law and technology to focus on the opportunities and challenges of user-generated content to traditional media & entertainment businesses.

A number of very interesting speakers are lined up, and this looks like a promising gathering to begin a new series of conversations about the changes that the Internet brings to media and entertainment. For conference schedule and registration please visit: www.nyls.edu/amhr

NIH Policy - Urgent

In a last ditch effort to undermine the public interest, Senator Inhofe (R-OK) has introduced amendments to pending legislation with the intent of denying American taxpayers access to medical journal articles reporting research funded with American tax dollars.

It is urgent that American readers contact their Senators to OPPOSE amendments that strike or change the NIH public access provision in the FY08 Labor/HHS appropriations bill.

The Senate is currently considering the FY08 Labor-HHS Bill, which includes a provision (already approved by the House of Representatives and the full Senate Appropriations Committee), that directs the NIH to change its Public Access Policy so that participation is required (rather than requested) for researchers, and ensures free, timely public access to articles resulting from NIH-funded research. This provisions requires public access within 12 months of publication - a very generous lead time for journal publishers.

On Friday, Senator Inhofe (R-OK), filed two amendments (#3416 and #3417), which call for the language to either be stricken from the bill, or modified in a way that would gravely limit the policy’s effectiveness. Amendment #3416 would eliminate the provision altogether. Amendment #3417 is likely to be presented to your Senator as a compromise that “balances” the needs of the public and of publishers. It does nothing of the sort because the current voluntary policy is a failure and this amendment is designed to maintain the status quo.

Please contact your Senators TODAY and urge them to vote “NO” on amendments #3416 and #3417. (Contact must be made before close of business on Monday, October 22). Contact information and a tool to email your Senator are online at http://www.taxpayeraccess.org/nih/2007senatecalltoaction.html. No time to write? Call the U.S. Capitol switchboard at (202) 224-3121 to be patched through to your Senate office.

House to Vote on NIH Policy

Tomorrow, Tuesday, July 17, 2007, the House of Representatives is set to vote on an important appropriations bill that contains a provision that would require NIH to make publicly accessible on the Internet the authors' manuscript of peer reviewed journal articles researched and written with NIH support.

Peter Suber provides the details for taking action at http://www.earlham.edu/~peters/fos/2007_07_08_fosblogarchive.html#6618575816753534506.

I cannot emphasize enough how modest a measure this is. NIH already has a copyright license from the authors of these articles to post them in PubMed Central database. All that this legislation would do is direct NIH to put its license to use.

Open Access Law - Pennsylvania

As Peter Suber reports, the Pennsylvania legislature is considering joining the movement for open access law. The House of Delegates unanimously approved a bill, introduced by Rep. Lisa Bennington, (D-Allegheny) As this editorial in the Altoona Mirror says: "Your tax dollars paid to create and enforce the laws. You should not have to pay again to view the statutes at your leisure. It’s time for Pennsylvania to catch up to the rest of the nation."

Patent Injunctions after eBay

I've recently posted a new piece: "Patent Injunctions and the Problem of Uniformity Cost."

Here's the abstract:

In eBay v. MercExchange, the Supreme Court correctly rejected a one-size-fits-all approach to patent injunctions. However, the Court's opinion does not fully recognize that the problem of uniformity in patent law is more general and that this problem cannot be solved through case-by-case analysis. This Essay provides a field guide for implementing eBay using functional analysis and insights from a uniformity-cost framework developed more fully in prior work. While there can be no general rule governing equitable relief in patent cases, the traditional four factor analysis for injunctive relief should lead the cases to cluster around certain patterns that often will have an industry-specific cast. This Essay identifies these patterns and summarizes the guideposts that courts and litigants should look for when conducting the traditional analysis in patent cases.

The Article is available on the Web from three places:

http://www.mttlr.org/volthirteen/carroll.pdf
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=992275
http://works.bepress.com/michael_carroll/

Need a New Word

The English language, as spoken in the United States, is missing a word. Think about the ways in which we refer to the female and male members of our society. Girl/Boy; Woman/Man; Female/Male; (Ladies/Gentleman) (although Gentlewoman is preferable). But a funny thing happens on the way from elementary to middle school. The “boys” become “guys” while the “girls” stay “girls.” And this doesn’t change even as these “girls” proceed well into adulthood.

It makes me cringe when my students refer to a female classmate as a “girl” for all the standard feminist reasons, but what is the alternative? If we want to use gendered informal designations, and maybe we shouldn’t, we’re missing an informal, but non-judgmental, designation for “woman.” To my ears “doll” (as in Guys and . . .), “gal,” “grrrl,” “chick,” “chica,” “babe,” “young’un,” “shorty,” and the like are non-starters.

Feminist friends to whom I’ve posed this problem are pessimistic that a new word would do anything to change the routine practices designed to infantilize and marginalize women. Maybe. But why make it difficult for a conscious person looking for an alternative to “girl”?

So, I’m looking for a word. Preferably one syllable. Probably a fanciful (made-up) word to use trademark parlance since most existing terms are likely to be loaded with sexist baggage. Ideas?

P.S. One inspiration for the idea of campaigning for a new word is the book “Frindle,” by Andrew Clements targeted at a pre-pubescent audience. It’s a charming tale that teaches a little semiotics and reminds about the power of language. The only drawback comes at the end, in which the author presents an erroneously overbroad understanding of the scope of trademark law in relation to a newly-coined term. But let’s not forget the basic semiotic lesson – words start out their careers as arbitrary signifiers and they derive meaning from our collective agreements. So let’s amend the social contract and get a better deal for all the ____ out there.

Open Access and the Newspaper Business

Newspapers are facing a serious financial strain. (I'm not sure it's truly a crisis). Advertising and subscription revenues fell significantly over the summer, and they do not appear poised to rebound.

Does this mean that open access to professional writing cannot survive at current levels of advertising support? Doc Searls thinks not, and has a great post explaining why at http://doc.weblogs.com/2007/03/24#howToSaveNewspapers.

Open Access Law - Access to Congressional Information

Two recent developments have helped highlight the general problem caused by application or implementation of copyright law to restrict access to federal information and federally-funded information and with policies that otherwise restrict access to such information.

First, as many readers may know, Speaker of the House Nancy Pelosi launched a blog in February 2007, and she posted a video taken by a C-SPAN camera of a committee hearing on the blog. The House Republican Study Committee accused her of infringing C-SPAN's copyright in the video and misusing it for partisan purposes.

There was some question of whether this video was in the copyright public domain as a government work under Section 105, which withholds copyright protection from works of authorship created by federal employees within the scope of their employment.

C-SPAN takes the position that video of proceedings on the floor of the House is in the public domain but that its committee footage is under copyright because it is taken by non-federal employees. However, C-SPAN has adopted a policy (i.e. a license) that "permits" non-commercial use of certain footage with attribution. (See also http://www.lessig.org/blog/archives/003718.shtml.)

Too many folks have assumed too quickly that all video is copyrightable. To be an "original work of authorship," the C-SPAN video must reflect a minimal spark of creativity on C-SPAN's part. If, as is likely, C-SPAN has little real choice about where to place its camera or how the room is lit, then there is a very real question about whether this video is in the public domain for lack of originality.

Second, capitolizing on the moment, a public interest coalition is rightly calling upon Congress to provide open access to the reports of the Congressional Research Service. These are U.S. Government works under copyright law, so this is not a copyright issue but a straight access issue.

This is an important step for the Movement for Open Access Law. For those who define open access as being solely about access to the scholarly literature, should appreciate and embrace this related movement for access to government-funded information.

CC Learn - Employment Opportunity

Creative Commons is looking for an Executive Director to head up our newly launched division, CC Learn. The position is located in the San Francisco office, working with the astounding CC staff. Details are here. http://creativecommons.org/about/opportunities#ccl Please pass this information along to the networks you are a part of and encourage qualified people to apply.

CC Learn - Announcement

Creative Commons is pleased to announce that we are launching a new division called CC Learn, which will extend the work we've been doing to support open educational material and repositories - kindergarten through lifelong learning. This initiative is made possible by the generous support of the William and Flora Hewlett Foundation and the MacArthur Foundation.

CC Learn's immediate goal is to work with those who already provide open educational resources to remove or mitigate barriers to combining or remixing content from different open collections. In other words, our goal is to make material more "interoperable," to speed up the virtuous cycle of use, experimentation and reuse, to spread the word about the value of open educational content, and to change the culture of repositories to one focused on "helping build a usable network of content worldwide" rather than "helping build the stuff on our site."

Please help us spread the news!

Petition for Public Access to Research

It's time to let policymakers in the United States know that you support open access. Following a very successful petition drive in the EC to support an open access mandate, a broad coalition of libraries, health groups, students, and consumers is jointly supporting a Petition for Public Access to Publicly Funded Research in the United States.

This petition, which is open to supporters around the world, will demonstrate clearly to U.S. policymakers the depth and breadth of support for access to federally funded research in the United States. Even if you signed the European petition, it’s important that you sign the US petition as well. Here’s why:

• The European Commission petition was designed to support specifically Recommendation A1 of the EC’s Study on the Economic and Technical Evolution of the Scientific Publication Markets of Europe.
• The U.S. petition is written to support public access to research funded by the U.S. government as well as the reintroduction and passage of the Federal Research Public Access Act.
• The U.S. petition collects state-specific information, which is essential to making the case for public access to individual lawmakers.

The Petition for Public Access to Publicly Funded Research in the United States (http://www.publicaccesstoresearch.org) is open to individuals and organizations of all types.

If you are a researcher whose work is funded by the federal government, your signature is especially important since it shows that you want your work to be shared and used.

Please distribute this message and invite your members, friends, and colleagues to sign the petition as soon as possible in order that as much progress as possible may be made in the 110th Congress.

Show Support for Open Access

In the wake of the publication of the report from the "EU Study on the Economic and Technical Evolution of the Scientific Publication Markets of Europe" a consortium of organisations working in the scholarly communication arena is sponsoring a petition to the European Commission to demonstrate support for Open Access and for the recommendations in the report. Signatures may be added on behalf of individuals or institutions.

Please register your support for Open Access in this way. To sign the petition, please go to http://www.ec-petition.eu/

The sponsoring organisations are JISC (Joint Information Systems Committee, UK), SURF (Netherlands), SPARC Europe, DFG (Deutsches Forschungsgemeinschaft, Germany), DEFF (Danmarks Elektroniske Fag- og Forskningsbibliotek, Denmark).

Patry on Copyright

William Patry has substantially revised his thoroughgoing treatise on copyright law. For more details, please visit Bill's entry describing the work in his insightful and informative blog. http://williampatry.blogspot.com/2007/01/my-treatise-is-now-available.html.

This is a welcome addition to the discourse.

Outrageous!

The coordinated attack by some in the Bush administration and some of its allies on pro bono lawyers representing Guantanamo detainees is beyond the pale. Charles D. Stimson, an official in the Defense Deparment and an attorney, argues that CEOs should withdraw their firm's legal business from law firms that are representing detainees. I don't use this blog to express political opinions, and the point here is non-partisan. It is an outrage for public officials of any party to use or threaten to use regulatory and purchasing power leverage to retailate against a lawyer for representing a party that is in active litigation adverse to the government.

There are so many things wrong with Stimson's position that it is hard to know where to begin. The most troubling is how deeply unpatriotic and unAmerican the sentiments Mr. Stimson expresses are. He rejects the fundamental values that make us American, including a presumption of innocence and the right to due process. While Mr. Stimson's statements are understandably politically embarrassing, the Justice Department's tepid distancing effort is equally troubling because it indicates a lack of full blooded commitment to the American conception of justice. Shame.

The Dream/It's Time

Dr. King's "I Have a Dream" speech is one of the most moving and powerful exhibitions of public oratory one can experience. I hope that it remains a part of public memory for at least as long as Pericles' funeral oration has. While Dr. King's speech by itself has memorable rhythmic and lyrical intensity, for me, these features are rendered sublimely by Max Roach's posthumous duet "The Dream/It's Time," in which Roach accompanies King on drums.

The piece is on the out-of-print album Chattahoochie Red (Columbia). There's a partial video clip here. It's time for the album to be re-released on CD.

We Need You!

The annual fundraising drive for Creative Commons is in its final days. Progress has been good, but we need a final push to make our goal. If you're looking for last-minute holiday gifts, there are some nice shirts and swag in the store. http://creativecommons.org/support/.

This has been a big year for the commons, and there's more exciting news expected in the new year. For those who have already shown their support, thank you!

Fencing Mozart In

A good news story for some classical music fans. A bad news story for champions of copyright's public domain. Digital copies of Mozart's scores are now "freely" available here. These works are in the public domain for copyright purposes, which means you are free to copy them without restriction.

However, the International Mozarteum Foundation, which has provided this service, has imposed a click-through agreement requiring visitors to agree to limit their use of the public domain to personal and fair use copies.

Digitizing copyright's public domain is to be applauded. Locking it behind contractual fences is not. There are other and better cost recovery models for this kind of transitional effort.

Open Systems

Two important pieces from the traditional press are worth noting.

First, Sir John Sulston, a Nobel laureate who serves on the Science Commons Advisory Board, has written a persuasive editorial in the Financial Times about the connection between openness and informational justice.

Second, Clive Thompson has a nice piece in the New York Times magazine about the adoption of open systems within the U.S. intelligence community.

Both demonstrate the importance of developing what we might call a "network consciousness". By this I mean an awareness of our own role as nodes in a host of overlapping social and material networks and an awareness of the potential and pitfalls of open systems.

Fixing Fair Use

I've posted a preprint of my latest article, Fixing Fair Use, here and here. Here's the abstract:

The fair use doctrine in copyright law balances expressive freedoms by permitting one to use another’s copyrighted expression under certain circumstances. The doctrine’s extreme context-sensitivity renders it of little value to those who require reasonable ex ante certainty about the legality of a proposed use. In this Article, Professor Carroll advances a legislative proposal to create a Fair Use Board in the U.S. Copyright Office that would have power to declare a proposed use of another’s copyrighted work to be a fair use. Like a private letter ruling from the IRS or a “no action” letter from the SEC, a favorable opinion would immunize only the petitioner from copyright liability for the proposed use, leaving the copyright owner free to challenge the same or similar uses by other parties. The copyright owner would receive notice and an opportunity to challenge a petition. Fair Use Rulings would be subject to administrative review in the Copyright Office and to judicial review by the federal courts of appeals. The Article closes with discussion of alternative approaches to fixing fair use.

Open Access and Incremenatlism

Arthur Sale has posted a very nice paper called The Patchwork Mandate that is directly in line with the advice I have been giving to open access advocates and institutional repository managers on a number of campuses.

He argues that if conditions are not ripe for putting an institution-wide deposit mandate in place, advocates should target department heads or faculties and similarly-situtated officials who could mandate deposit of research papers produced within the unit into the institutional repository. He is exactly right.

He is right for the broader reason that open access advocates have to be incrementalists. Open access has occurred thus far and will continue to grow through the combination of top-down and bottom-up strategies that have been working thus far. There are still a number of skeptics who need persuading that granting access to marginal audiences is a valuable goal. It is more feasible to win some of these skeptics over in small group settings and by shifting behavioral and attidunal norms within more local settings - such as an academic department.

Of course, we continue to work hard to support top-down initiatives, such as the FRPAA, which is itself an incrementalist measure that applies to only a subset of funding institutions. But we have to be pragmatic about where the opportunities are. If you are in a university that is not in a position to adopt institution-wide open access policies, look for other opportunities. One department at a time.

The Broadcast Treaty and Open Access

Copyright. Michael Geist has a nice column today once again reminding us about why the WIPO negotiations over a Broadcast Treaty are trouble. See also the CPTech blog. A number of technology companies and public interest organizations oppose the treaty for these reasons.

One quick point about the Treaty and then a point for Open Access advocates. In my view, representatives of copyright-owning organizations have made the wrong bet in either supporting or staying neutral on this issue. They have bet that broadcasters will, on balance, help them enforce their rights against those who transmit copyrighted works that have been broadcast. As technology evolves, and broadcasters use the rights created by the Treaty to protect their business model, these copyright owners will regret the choice they make today.

Some Open Access advocates, librarians in particular, have been active in opposing the treaty. For those who have not tuned in, the important thing to watch is how the policy debate is conducted. Who has the burden of persuasion? Ben Ivins of the National Association of Broadcasters argues that because other countries give broadcasters a distinct right in their signal, it is opponents of the treaty who must show that the treaty would be harmful. This argument is exactly backward. In the United States, a proponent of a law that restricts speech has the burden to show that the restriction will advance an important governmental interest. The NAB has failed to meet this burden. Even though the executive branch has signed on, Congress and the courts should demand to see evidence that the treaty would address a real harm without interfering with legitimate communication. So far the evidence does not even come close.

Allocating the buren of persuasion is just as important with respect to the Federal Research Public Access Act (FRPAA). The AAP is doing its best to argue that proponents of the legislation must prove that the benefits of open access outweigh the costs. That, I am afraid, is not the way it works in any society that embraces a principle of freedom of expression. Thus, the first response from the open access community should be that the burden is on those who would restrict public distribution of publicly-funded research to show that such restrictions advance an important public interest. Then, we can take up the question of how to measure benefits and costs.

Future of Music?

Music. Copyright. There's little doubt that the music industry is in a period of transformation. Today's news is that Universal Music is willing to "compete with free" by letting a site called Spiral Frog experiment with an ad-supported distribution model, permitting "free" downloads that are tethered to the site with technological protection measures (a.k.a. DRM).

Meanwhile, the debate about business models has gone audiovisual. For the defense of the traditional model, watch the RIAA's latest, Campus Downloading, at http://www.campusdownloading.com/dvd.htm

For the opposing case, watch MC Lars', "Download This Song," at http://www.mclars.com/v2/media.html#VIDWIN or at http://www.myspace.com/mclars (points for those who can identify the song this is built on or the guest vocalist).

And for parody's sake, there's always Weird Al, at http://www.dontdownloadthissong.com/

Online Communities and Their Discontents

Surely I was not the only reader struck by the coincidence of stories in yesterday's New York Times about two very different kinds of online communities deemed to be dangerous? In one story, we learn about the structure and depth of the online pedophile community or communities. Although not surprising that the Net would be put to this use, the story is still a deeply disturbing reminder of the many sicknesses that plague the human condition.

We Internet enthusiasts have to be candid about the network's potential to facilitate the formation or growth of criminal and morally reprehensible communities such as these. The proper response in my view is not to change the architecture of the network but to invest more law enforcement resources in disbanding these harmful social networks.

On the other hand, we have a story about a different kind of community that's become a scourge of the Net - guitar players. That's right. Seems the National Music Publisher's Association has launched an offensive against sites that host tablature versions of popular songs. (Tab is a graphic representation of how to play a piece of music.) These tabs generally are written by amateur guitarists who seek to teach each other songs of interest. According to the NMPA, these sites are cutting into publishing revenues. (Disclosure: I'm a guitarist, but I don't use tab to learn songs. I play by ear.)

I'm all in favor of seeing songwriters getting paid, but this approach once again represents an attempt to force the digital into an analog model. Rather than work with this online community that has formed around the music, by perhaps adopting an adverstising-based and value-added approach, the publishers want to disband it and preserve a sales model that would force guitarists into a passive consumption role. To quote a certain songwriter from New Jersey, "One day we'll look back on this and it will all seem funny."

The Publishers' "Private Market" Canard

Open Access. In response to the Provosts' Open Letter supporting a legislative requirement for open access to federally-funded research articles, Alan Adler, vice president for legal and government affairs of the Association of American Publishers, said “what the university community is excited about is the prospect of being able to get access to all this published material free online, which is not terribly surprising. But why should universities be excited about the government inserting itself into the process of providing access to research?

Congress must not be fooled by this rhetorical sleight of hand. This move by scholarly publishers to assert scholarly publishing as private domain into which the federal government is intruding is, frankly, silly. We have seen this move with the American Chemical Society's attempt to stop NIH from harvesting and publishing public domain information in its PubChem database. If there are any interlopers in scholarly communication in the sciences, it is for-profit commercial publishers rather than the federal government. (See John Willinsky, The Access Prinicple, for details).

The articles that would be made publicly accessible under the FRPAA are those reporting on research conducted with federal support. Why isn't this support also a form of "interference"? But we do not hear Mr. Adler complaining about the federal government subsidizing the critical input for his members' businesses do we? Moreover, the publishing activities of scholarly societies have been indirectly underwritten with government funding, which supplies funds that end up paying membership fees and/or journal subscriptions. Unless and until Mr. Adler's members are willing to pay full value to support the research and writing of research articles, they have no standing to complain about government "interference."

Provosts Support Open Access Bill

Open Access. A recent story reports that the provosts (chief academic officers) of 25 leading research universities in the United States have released an open letter supporting the pending Federal Research Public Access Act, which would mandate public access to the peer-reviewed scholarly literature that reports results from federally-funded research. This is an important development. Kudos to these leaders for their courage in making open access a front-burner issue for higher education's legislative efforts.

Got (good) Coffee?

Trademark. Food, clothing, shelter. How do we obtain these basic necessities? For this post, please excuse a moment of self-indulgence, and let’s set aside the real problem of supplying these to world’s poor so that I can address a middle class issue.

If you go most places in the industrialized world, you will be able to eat, shop, and sleep in an establishment that sports a familiar global brand. If you find the ever-present sameness that this model of retailing brings about deadening, is there any way to limit the quality of sameness to only the features for which consistency matters to consumers while leaving business owners free to offer greater individuality in the retail experience?

Here’s an idea. In the franchise model, a trademark is really acting as a certification mark rather than a source identifier. If small business owners were able to establish effective certification marks, they would be able to reap many of the benefits of being a franchisee while enjoying greater freedom to control their operations and to keep a larger share of their profits.

Take coffee as a test case. Like many coffee drinkers I have an ambiguous relationship with Starbucks. On some occasions, I have never been so grateful to get a big cup of strong coffee in a place where it would otherwise have been unavailable. On other occasions, the success of Starbucks’ strategy to crowd out competitors leaves me frustrated that local javantrepreneurs stand little chance to supply good coffee in an ambience that reflects local culture. But I’ll admit to having been burned in some tourist destinations by local coffee shops that dress themselves up as if they care about what they brew only to find that I’m drinking a $3.00 cup of dishwater.

Assume for the moment that there is a sizeable set of coffee drinkers who would prefer to patronize a local coffee shop over Starbucks if they could be assured that the coffee at the local shop meets certain minimum taste standards. If enough of that group lives in a single locale, a small business owner can compete effectively against Starbucks.

But in destinations where travelers would have to be part of the customer base, a small business is likely to fail when competing against the promise of consistency that the Starbucks logo holds out. However, if a local business could display a reliable certification mark, the business would stand a chance. Then, the traveling coffee drinker could enjoy a locally distinctive ambience along with a cup of good coffee.

So for those who decry the Charbucks hegemony, it’s time to think about what an effective certification mark would have to convey and how such a mark could be made reasonably reliable.

Microsoft Enables Creative Commons Licensing

Copyright. As further evidence that networked computing is now the norm, users of Microsoft's Office suite now have an embedded option to attach a Creative Commons license to their PowerPoint, Word, or Excel files. A downloadable plug-in is available here. This is a welcome development.

Broadcast Treaty

James Boyle has written a dead-on analysis of the deeply flawed WIPO broadcast treaty that would create a pseud0 intellectual property right in a signal, as distinct from the content encoded in the signal.

The case simply has not been made that this treaty responds to a real problem nor that the alleged cure is better than the disease. CPTech along with Public Knowledge and the Electronic Frontier Foundation have represented the public's demand for better process and a better product on this score. These organizations deserve support for their efforts in this regard. For more info, see

Consumer Project on Technology: http://www.cptech.org/ip/wipo/bt/index.html
Electronic Frontier Foundation: http://www.eff.org/IP/WIPO/broadcasting_treaty/
Public Knowledge: http://www.publicknowledge.org/issues/wipobroadcasters

Harris Poll Shows Support for Open Access

Open Access. The Wall Street Journal reports today on a Harris Interactive poll that asked 2,501 Americans whether they thought the public should have online access to publicly funded research. Here's what they found:

• 83% of adults say they strongly (61%) or somewhat (22%) agree that since this research is paid for by tax dollars, the results should be easily available (free and online) to doctors.
• 82% of adults say they strongly (57%) or somewhat (25%) agree that if tax dollars pay for scientific research, people should have free access to the results of the research on the Internet.
• 81% of adults say they strongly (49%) or somewhat (32%) agree that having this information easily available (for free and online) will help those living with a chronic illness or disability get the latest information which will assist people coping with that chronic illness or disability.

Methodology
This Harris Poll was conducted online within the United States between April 11 and 17, 2006 among 2,501 adults (aged 18 and over). Figures for age, sex, race/ethnicity, education, region and household income were weighted where necessary to bring them into line with their actual proportions in the population. Propensity score weighting was also used to adjust for respondents’ propensity to be online.

All surveys are subject to several sources of error. These include: sampling error (because only a sample of a population is interviewed); measurement error due to question wording and/or question order, deliberately or unintentionally inaccurate responses, nonresponse (including refusals), interviewer effects (when live interviewers are used) and weighting.

Put Articles by Government Researchers Online Now

Open Access. This is the first in a series of posts I plan about copyright law and access to publicly funded research. In this post, I highlight the public domain status of research articles by federal employees under U.S. law and issue a call for action by open access advocates.

The proposed Federal Public Research Access Act of 2006 has an important provision that would require covered agencies to mark peer-reviewed articles by agency employees as being in the public domain and to post such articles online immediately. This is an incontestibly sensible requirement, but federal agencies and members of the public need not await the outcome of this pending legislation to make this provision effective.

Why? Because under Section 105 of the Copyright Act, any "work of the United States Government" is not subject to copyright. That means any journal article written solely by federal employee researchers (think NASA, NIH, etc.) is in the public domain. If an article is co-authored by one or more non-federal employees, then the copyright status is more complicated.

For the moment, let's focus on articles written solely by federal employees. These articles, as part of the public domain, belong to you. If you find one, you are free to post it online and to mark it as part of the public domain.

The trick is to find these articles. If you are in an office of intramural research and have access to bibliographies of articles written by federal employees, can you send me a copy or post it online? If you otherwise have access to such bibliographies, please post it or send me a copy.

Going forward, agencies should start requiring that articles written solely by federal employees be marked as such so that we can get these online now.

Muzak and Music Retailing

Music. David Owen wrote a very nice piece in the April 10, 2006 issue of the New Yorker about Muzak, the company that specializes in background music for retail establishments, office elevators, and on-hold entertainment. The company has reinvented itself with some success.

To my ear, however, the trend is away from a Muzak-type service and toward what Starbucks has done with Hear music. Traditionally, companies have spent far more time and effort developing a visual identity than an aural identity. That's beginning to change, as automobile manufacturers have discovered that rock n' roll sells cars, and retailers increasingly begin to develop and package "their" sound.

Brick-and-mortar record stores continue to experience the pain of disintermediation, while lifestyle retailers (coffee, clothing, etc.), begin to add CDs as a new line of merchandise. Interesting times.

The Technological Case for Open Access

Open Access. Clifford Lynch makes another important contribution by illuminating the potential of open access in a networked age. We're trying to realize this potential with the Science Commons neurocommons project.

"As the scholarly literature moves to digital form, what is
actually needed to move beyond a system that just replicates all
of our assumptions that this literature is only read, and read
only by human beings, one article at a time? What is needed to
permit the creation of digital libraries hosting these materials
that moves beyond the "incunabular" view of the literature, to
use Greg Crane's very provocative recent characterization. What
is needed to allow the application of computational technologies
to extract new knowledge, correlations and hypotheses from
collections of scholarly literature?"

Here is the link to the piece (a chapter from a forthcoming book):
http://www.cni.org/staff/cliffpubs/OpenComputation.htm.

The Insider's Argument against Open Access

Open Access. Here comes the public attack against the bi-partisan Federal Research Public Access Act of 2006, which would require 11 government agencies to publish online any articles that contained research financed with federal grants. See Sara Ivry, Some Publishers of Scholarly Journals Dislike Bill to Require Online Access to Articles, New York Times, 5/8/06.

What is particularly galling is one of the two publisher responses to the taxpayer access argument for open access. The taxpayer argument is simple: we paid for it, we should get to read it without paying again. Publishers have two responses: (1) the economic argument and (2) the elitist argument.

The economic argument holds that taxpayers do not pay for all of the valuable inputs into a publicly-funded journal article, and open access will destroy publisher motivation to add value.

The elitist argument holds that taxpayers cannot be trusted with open access because they might harm themselves by misreading or misunderstanding an article written by specialists for specialists. In the case of biomedical research, the argument goes, open access could lead non-specialist members of the public to self-treat, to fail to seek medical attention, and/or to disobey doctor's orders.

Let's just focus on the elitist argument for a moment. How would that argument fly with respect to other kinds of government expenditure? Voters should not have access to information about how the war in Iraq is going because they're likely to misunderstand how complex modern warfare is? Voters should not have access to hurricaine readiness preparations in New Orleans because meteorology is a complex business? These arguments are laughable on their face. Why doesn't the elitist argument against open government get the same response when it comes to science? The different treatment arises out of fundamental differences between the respective cultures of law and science, differences nicely analyzed in Steven Goldberg's 1994 book, Culture Clash: Law and Science in America (NYU Press). The culture of science has been buffered in some respects from our more general information policy in the U.S.

But the Internet is forcing science to confront that policy now, and that policy is rooted in the First Amendment. In the United States, we begin with a premise of democratic access to information. Arguments by elites that the American voter "can't handle the truth" run afoul of our deepest commitments. While it is important to recognize that transmission of information does not equate with transmission of knowledge, to presume that open access to scholarly information never amounts to transmission of knowledge to members of the general public is offensive to our core beliefs.

Members of Congress and their respective staffs should treat the elitist argument as constitutionally suspect and not waste any time on it as the debate on this important initiative moves forward.

One for the Law Students

I love a good comic strip. Long, long ago (in the early 1980s) I lived in Austin. Sam Hurt drew a great strip called Eyebeam for the UT newspaper. These have been compiled in books that, sadly, are out of print.

I was there during the time the title character, Eyebeam, made the transition from college to law school. For a taste of the early days, here's the second installment: http://eyebeam.com/toons/index.php?num=2

For the law students feeling the weight of exams, cheer up: http://www.eyebeam.com/1983/index.php?num=39

Music Sampling - Overdue Venting about Bridgeport

Copyright. Music. Like many others who worry about achieving the proper balance between public and private interests in copyright law, I was very disturbed when the Sixth Circuit announced its novel interpretation of the Copyright Act in Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390, 398 (6th Cir. 2004), aff'd on reh’g, 410 F.3d 792 (6th Cir. 2005). The court concluded that hip hop artists and others who create digital samples must live by a simple rule: "Get a license or do not sample."

The court justified its holding on a number of policy grounds, the most important being that it would reduce transaction costs. (It was hard not to notice that some of those transaction costs would be the court's own in handling the hundreds of similar cases pending below.) Not surprisingly, most of the blog/mainstream press commentary that I read focused energy and criticism on the court's policy rationale.

My reaction was a little different, and I have been holding it in for too long. While I also am wholly unpersuaded by the court's rationale, I found more disturbing the court's method of interpreting the Copyright Act. With all due respect, even if you think the court's rule is a good one, if you value consistency in statutory interpretation, you will have to admit that the case was wrongly decided. Here's why:

First, a little backgound. Copyright law distinguishes between a "musical work"- the music and lyrics - and a "sound recording" - the recorded rendition of the musical work. There is a separate copyright in the sound recording based on the creative decisions that went into how the musical work should sound when recorded. (The authors of the sound recording may be performer(s), the record producer(s), the sound engineer(s), and/or others involved in the recording session or post-production process.).

Analysis of the Copyright Act in an infringement action takes two steps. First, the court asks whether one of the exclusive rights granted to the copyright owner in Section 106 has been exercised without authorization. If the answer is yes, the court then asks whether one of the limitations on those rights in Sections 107-122 renders the use non-infringing.

Section 114 is one such limitation. In Section 114, Congress limited the scope of sound recording copyrights to make them narrower than copyright in most other forms of expression, including musical works. Contrary to the text and legislative history of the Act, the Sixth Circuit decision broadens the scope of sound recording copyrights beyond that for any other kind of creative work.

In Bridgeport, the question presented was whether the de minimis use limitation applies to digital sampling of a sound recording. The de minimis doctrine is a general limitation of law that applies to all of the Section 106 rights regardless of the type of copyright involved. The district court properly understood this and started and ended its analysis with Section 106, finding that a small snippet of a guitar lick that had been transformed and looped was a de minimis use.

The court of appeals, by contrast, started with Section 114 - the special limitation on the Section 106 rights that applies only to sound recording copyrights. The court then read a portion of Section 114 designed to limit the reproduction right to only exact duplication (instead of the normal rule, which encompasses substantially similar duplication) to eliminate the de minimis doctrine only for sound recordings.

In my view, neither the text of the Copyright Act nor its legislative history supports this unique departure from standard copyright infringement analysis. Therefore, as interesting as the policy analysis is concerning the value of certainty in copyright law, I do not think there is a statutory basis for the rule announced by the court in this case.

Copyright in "Pre-Prints" and "Post-Prints"

Open Access. In some quarters of the Open Access movement, some confusion has arisen with respect to copyright law and the many iterations through which an article goes. The comments that follow describe how U.S. law looks at "pre-prints" - the version of an article first submitted to a publisher, and "post-prints" - the author's final manuscript incorporating changes made after peer review. I wrote these comments in response to the question whether an author could grant a Creative Commons license to use a pre-print after having signed away all rights under copyright to a publisher. These comments are for your information and are not legal advice.

The short answer is no, an author cannot grant a Creative Commons license in a pre-print after having signed away all rights in the article in a publication agreement.

Although technically distinct, the copyrights in the pre-print and the post-print overlap. The important point to understand is that copyright grants the owner the right to control exact duplicates and versions that are "substantiallysimilar" to the copyrighted work. (This is under U.S. law, but most other jurisdictions similarly define the scope of copyright).

A pre-print will normally be substantially similar to the post-print. Therefore, when an author transfers the exclusive rights in the work to a publisher, the author precludes herself from making copies or distributing copies of any substantially similar versions of the work as well.

[For example, the singer John Fogerty of Credence Clearwater Revival famewas sued by a record company, which had acquired the copyright in his song"Run Through the Jungle". The company claimed that Fogerty's later song"The Old Man Down the Road" was substantially similar to the former song and that Fogerty had therefore infringed the copyright that Fogerty had signed away.]

Consequently, whether an author may grant the public a Creative Commons license depends upon the rights the author has at the time of the grant. If the author grants a Creative Commons license in the article prior to transferring copyright to the publisher, the publisher takes the copyright subject to that license. But before doing this, authors should read the terms of the publication agreement they are signing. Some of these agreements call upon the author to assign all rights under copyright,which the author cannot do if he or she has previously granted a license.

Even when the copyright transfer agreement has such a provision, however,publishers will sometimes agree to take the copyright subject to a previously-granted license. For example, every researcher who accepts money from NIH or any other U.S. government agency grants to the U.S.government a non-exclusive license to publish and reproduce the work. This license is granted prior to any agreement that the author enters into with a publisher and therefore published papers funded by NIH research are subject to the USG's license.

Publishers are fully aware of the government's license and therefore the terms of any copyright agreement signed by a USG-funded researcher that purports to give all rights to the publisher has to be interpreted accordingly.With that background, let's return to the original question. Once an author signs a publication agreement, can that author grant a CreativeCommons license in the pre-print?

It depends upon the terms of the agreement, as modified by any addenda. Currently, under most publication agreements, the author does not retain sufficient rights to grant a Creative Commons license in either the post-print or the pre-print after transferring copyright to the publisher.Of course, the author retains the right that all members of the public have to make a fair use of the article or exercise a fair dealing privilege, but it is unclear whether this privilege would permit posting of the pre-print without authorization from a publisher that owns thecopyright in the post-print.

The Federal Research Public Access Act of 2006

Open Access. Senators Cornyn and Lieberman have introduced an important bill that would improve access for researchers and members of the public to federally-funded research. The Washington Post has a story here: http://www.washingtonpost.com/wp-dyn/content/article/2006/05/02/AR2006050201506.html.