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/