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.
Wednesday, February 13, 2008
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.]
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.
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:
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.
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.
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.
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.
Friday, December 07, 2007
Please support Creative Commons
This has been a big year for Creative Commons:
We have great projects in the pipeline, but we can only bring these to fruition with your support. Thank you and seasons greetings.
- 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.
We have great projects in the pipeline, but we can only bring these to fruition with your support. Thank you and seasons greetings.
Wednesday, November 14, 2007
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?
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.
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
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
Saturday, October 20, 2007
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
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.
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
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.
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.
Monday, July 16, 2007
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.
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/
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/
Tuesday, April 03, 2007
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.
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.
Saturday, March 31, 2007
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.
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.
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.
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