Lecture at Bucerius Law School

I will be giving a lecture on copyright law and Creative Commons tomorrow (Friday, December 11, 2009) at the Bucerius Law School in Hamburg, Germany. Dean Niva Elkin-Koren from the University of Haifa in Israel will also speak. Should be great fun!

White House - Open Access - Request for Information

Publicly funded research outputs should be freely accessible by the public absent compelling reasons to withhold access. That's a simple, perhaps obvious, principle that is slowly gaining ground in the digital environment. The NIH Public Access Policy makes important strides in the right direction, although the delay in public access is too long.

Now, in an important development, the White House Office of Science and Technology Policy has launched a public consultation on the question of whether the executive branch should adopt a more general public access policy for all federally-funded research outputs.

The window for comments is not open for long, so please take a moment to let the White House know that public deserves access to the research it funds absent compelling reasons to keep such research secret.

Please help me support Creative Commons

Gentle reader,

'Tis the season to ask for support for Creative Commons, and this year I have to make it personal. I have my own fundraising page, and anything you can give to help out would be most appreciated.

As many of you know, I have served on the Board of this organization since its founding in 2002. My primary motivation throughout these years has been to find ways to make it easy and understandable to legally share knowledge, creativity, and discovery. I’m a lawyer and my way of contributing to this effort is to help the organization craft standardized legal licenses and technical tools designed for these purposes. I hope that’s a goal you will support as well.

The organization is staffed by energetic, devoted folks who embrace the mission today with as much passion as when we launched. That’s a hard thing for most non-profit organizations to say, and it speaks to the power of the fundamental idea that we can accomplish more by working together to build a shared culture than by working apart. Just this year, a number of CC’s initiatives have produced these results:

• Wikipedia Officially Converts to CC BY-SA
• Google and Yahoo integrate CC licensing
• Ridley Scott to Use CC BY-SA for Blade Runner Web Series
• Open Data and More -- Getting Copyright Out of the Way With CC Zero
• CC and the Public Sector
• Creative Commons to Produce Open Patent Licenses – Nike, Best Buy, Yahoo!, and others to use
• Marking and Finding Open Educational Resources

Follow the links for more details, and don't forget to make a donation on your way out!

Patent Lecture - Dreyfuss talk now posted

I'm pleased to announce that the video of Professor Rochelle C. Dreyfuss's delivery of the Fifth Annual Finnegan Distinguished Lecture on Intellectual Property at American University, Washington College of Law is now available here. The lecture is "What the Federal Circuit Can Learn from the Supreme Court -- and Vice Versa."

In her talk, Professor Dreyfuss first reviewed the history of the Federal Circuit's creation, and then analyzed why the Supreme Court has taken such increased interest in reviewing Federal Circuit decisions on substantive matters of patent law in recent years. She drew attention to the difficulties of the expert Federal Circuit, sitting between generalist trial courts and a generalist Supreme Court. You'll have to watch the video to hear her specific recommendations for both the Federal Circuit and the Supreme Court. Also, be sure not to miss the lively question and answer period that followed, which closes with an eloquent comment by Federal Circuit Judge Pauline Newman.

An edited transcript of the lecture will be published later this year in the American University Law Review's annual review of Federal Circuit decisions.

Patent Law Lecture at American

What the Federal Circuit Can Learn from the Supreme Court -- and Vice Versa

Please join us for the Fifth Annual Finnegan Distinguished Lecture on Intellectual Property on October 20, 2009 at 6:00 p.m. EDT. This year's lecture will be delivered by Professor Rochelle C. Dreyfuss, Pauline Newman Professor of Law at New York University Law School.

Abstract:

For over a quarter century, the Federal Circuit has been in the business of using its special expertise to revise key aspects of both procedural and substantive patent law. In the court’s early years, the Supreme Court largely refrained from reviewing its jurisprudence. However, in the last decade, the two tribunals have engaged in a vibrant dialogue. In this presentation, Professor Dreyfuss will examine their interaction, asking questions about the role that specialists should be permitted to play in tailoring law to the needs of technologically complex and emerging industries, and the extent to which generalists can helpfully intervene to keep this law in the mainstream and attuned to other social values and related developments, such as open innovation.

When: October 20, 2009, 5:00 p.m. Reception | 6:00 p.m. Lecture
Where: Washington College of Law
4801 Massachusetts Ave., N.W., Room 603
Registration: http://www.wcl.american.edu/secle/register
or call 202-274-4445
Webcast: Live and On Demand: http://www.wcl.american.edu/pijip/webcast.cfm

The "How To" Web - El Cocinero Fiel

Whenever Internet theorists want an example of how the Internet changes the world and makes possible things we never could have had before, Exhibit A is almost always Wikipedia. Now, I also think Wikipedia as a social phenomenon and as an information resource is pretty incredible. But, often I think this talk drifts into a kind of Wikipedia-exceptionalism. Even when one sweeps in free software as another form of peer production, I think the discussion about building an "it" misses what I think is the more fundamental human urge to teach one another.

It is a strong impulse learned in the nuclear family to teach others so that they may grow. In my view, it is this impulse that leads folks to contribute to Wikipedia, to essentially provide free software support or customer service to producers through user forums, and to share practical tips and knowledge through all manner of blogs. Taken together, all of this advice and sharing of practical knowledge forms the "How To" web.

(Of course, sometime this exercise comes off the web. At Campus Party 2009, Patricio Lorente of the Wikimedia Foundation taught a group of astronomers f2f at Campus Party 2009 how to create a Wikipedia entry.)

A case in point is the growth of video blogs or posts to YouTube that provide all manner of instructional video. While in Columbia, I had the good fortune to get to know Txaber Allue Marti, otherwise known in the Spanish-speaking world as El Cocinero Fiel (the funky cook). Living in Spain, but increasingly engaged in gastronomic tourism, Txaber's video blog is essentially an interactive cooking show hosted on YouTube. An important part of his success is that he interacts with his audience through the comment feature. He also posts his blog under a Creative Commons license.

Having been an occasional viewer of television cooking shows, I find Txaber's videos refreshingly direct and fun. In part, he makes the food the star of the videos, not the cook.

Below is Txaber, Carolina Botero (Creative Commons Colombia), and Patricio.

Bogota - Campus Party 2009

On July 11, I gave a keynote on Creative Commons and the principle of copyright neutrality at Campus Party 2009. Many thanks to Carolina Botero of Creative Commons Columbia and the folks at CampusBlog for the invitation. Pictured at the right are Carolina and Jaime Rojas, two of the four founders of CC Columbia.

Below is a scene from Campus Party.

Guangzhou - International Workshop on Copyright Industries

On June 15, I participated in the 2009 International Workshop on Copyright Industries and Intellectual Property, hosted by the South China University of Technology in Guangzhou. This invitation also was through the good offices of Peter Yu and the faculty at SCUT. My talk was on the role of intellectual property licensing in copyright industries, and the interrelation between private licenses and public licenses, such as the GNU General Public License or Creative Commons licenses.

Our hosts were very generousm and we were very well fed! I particularly enjoyed the river tour of the city.

Hong Kong - Age of Digital Convergence Conference

On June 12-13, I participated in the Age of Digital Convergence conference organized by Peter Yu in conjunction with, and hosted by, Hong Kong University. My talk was on "Copyright and the Role of Machines in Cultural Production." I briefly look at issues concerning the roles of machines as reading tools and authoring tools. Machines as readers has greater impact on copyright practices than on the interpretation of copyright law as such.

As a matter of practice, copyright owners are, or should be, increasingly aware of machines as the immediate audience for their works. These machines may be acting as discoverers, filters, organizers, translators, etc. Machines need rules to perform these functions, and digital works need to be marked up or formatted consistently with the rules used by these machines. In the open access context, the big lost opportunity is that most scholarship is not being published in a manner that enables machines readers to fully assist researchers.


Machines as authoring tools raise a host of interesting legal questions. I use the case of David Cope as an example. His Experiments in Musical Intelligence software composes music in the style of famous classical composers. WNYC has a nice interview with him, in which he explains how EMI works and the kinds of reactions he receives when audiences who find themselves emotionally moved by live performance of the composition learn that it is the produce of Cope's algorithm.



According to Cope:

Ultimately, the computer is just a tool with which we extend our minds. The music our algorithms compose are (sic) as much ours as the music created by the greatest of our personal human inspirations.

Well, "ours" in what sense? As a matter of copyright law, it is not at all clear that Cope is the legal author of the music that results from the operation of his software. There are four choices concerning copyright ownership of the outputs of an authoring tool:

(1) designer of tool
(2) user of tool
(3) joint ownership between designer and user
(4) no ownership

Tool designers can influence the outcome by running multiple permutations and fixing these in a tangible medium (digital storage).

Playing for Change

I just bought the Playing for Change CD/DVD. What a joy! While the Stand By Me video has received a lot of attention, the other songs and videos are as inspiring.

Federal Research Public Access Act (FRPAA) - Reintroduced

Senators Lieberman and Cornyn have reintroduced the Federal Research Public Access Act (S. 1373), which would require agencies with large research budgets to develop public access plans to make the peer reviewed journal articles reporting the results of research funded by these agencies publicly accessible over the Internet. In essence, this bill would take a large step toward generalizing the principle established by the NIH Public Access Policy. This is great news. For more information about what you can do to support the bill, see the Alliance for Taxpayer Access page.

Josh Sarnoff's New Blog - Inherently Sarnoff

Congratulations to Josh Sarnoff, who joins the blogosphere with his new blog - Inherently Sarnoff. Josh is my colleague at the Washington College of Law, and he has interesting thoughts and perspectives to contribute to the online dialog about patent law and related matters. For those unfamiliar with patent law, the title of his blog refers to the doctrine of inherency under which a claimed invention can be found to fail the test of novelty because the invention, or one of its elements, is inherent in the prior art. Welcome Josh!

Professional Move - Au Revoir Villanova

My professional move from the Villanova School of Law to the American University, Washington College of Law became effective on June 1, 2009. I wanted to take a moment to express my gratitude to the Villanova community for having given me the opportunity to live and to work as a member. I had the opportunity to teach a wide range of interesting and interested students, some of whom are kind enough to subscribe to this blog :-)

I leave behind many friends on a great faculty. My faculty colleagues and Dean Sargent supported my scholarly activities with enthusiasm and were always generous with their time and attention when questions about teaching or other aspects of life in a law school arose.

The Villanova Law School has a distinctive, collegial culture, which I expect will thrive when it gets transplanted into a new building, this summer. Congratulations to all those who made the new building a reality!

When a professor moves to a new school, it is not a sharp transition because the professor remains colleagues with his former faculty members in the larger communities of legal education, higher education, and the legal profession. So this is not goodbye; simply au revoir.

Stuart Shieber's New Blog - Occasional Pamphlet

Stuart Shieber, Professor and Director of the Office of Scholarly Communication at Harvard,has started an open access blog, The Occasional Pamphlet. Stuart was responsible for shepherding the Harvard Faculty of Arts and Sciences Open Access policy through the process. Stuart cares deeply about getting the architecture right for digital scholarly communication, and he has a number of creative ideas about how to move to a more open and productive environment for scholarly communication. Welcome Stuart!

Lessig on Helprin

There's a cottage industry of naysayers who seek attention by deriding all things Internet. A member of this crew, Mark Helprin, has put together a collection of pages bound together under the title Digital Barbarism which was printed by Harper Collins. I say printed rather than published because the book could not have passed through any meaningful peer review or editorial process. It appears that at least in this case, Harper has decided that its future is as a vanity press.

In the book, Helprin presents a largely fictional account of copyright law and takes some pot shots at Creative Commons along the way. If you happen to come across someone who has been taken in by Helprin's account, please refer them to Larry Lessig's meticulous refutation of Helprin.

Please Don't Use .docx

If you, like me, work in an organization that has switched to Microsoft Office 2007, please be alert to two problems and their solutions.

Problem 1: They changed the interface big time. Microsoft says it's an improvement based on user data. If you, like me, value your time relearning a new menu structure that is in no way intuitive is not an improvement.

Solution: There is an easy solution - OpenOffice, the free office suite that is interoperable with Microsoft Office let's you stay with largely the same interface as MS Office 2003.

Problem 2: They changed the file format. For reasons nicely explained by Brian at Teach Them Well, this is not an improvement. It's an attempt to break the standard that Microsoft established with earlier versions of Office. The new file formats end in x (.docx, .pptx, .xlsx). These are not compatible with earlier versions of MS Office. When you instruct MS Office 2007 to use the older file formats (.doc, .ppt, .xls) the window announces that you are operating in "Compatibility Mode". Draw the inference - when you are using the new MS Office 2007 formats, you are operating in "Incompatibility Mode". Why would you want to do that?

Solution: Switch to OpenOffice or, if you must use MS Office 2007, use these instructions to change the default file formats to the standard ones.

Urgent - The Fate of Internet Users' Rights in the EU

Readers in Europe who care about keeping the Internet relatively neutral need to express that opinion to policymakers in the European Parliament by April 29. In particular, it is inexplicable why the Green Party is on the sidelines and not actively supporting the Citizens' Rights Amendments that have been tabled to restore users' rights that were in an earlier version of the gargantuan Telecoms Package making its way through the European Parliament. Erik Josefsson is a leading proponent of these amendments, and he is hosting PDF versions of the amendments Part I, Part II and Part III on his site.

The magic numbers in this debate have been 138 and 166. These are the two amendments that initially were hailed in the US press as recognizing access to the Internet as a fundamental right, countering French President Nicolas Sarkozy's campaign to require service providers to impose the Internet death penalty on users found to have infringed intellectual property rights three times.

Lobbying by representatives of corporate and professional rights owners - remember there is no group dedicated solely to lobbying on behalf of the millions of amateur creators who also are rights owners under copyright - has led to a reversal of this position As Monica Horten reports, the current versions of Amendment 138 and Amendment 166 would allow for imposition of the Internet death penalty and non-neutral network management.

The Citizens' Rights Amendments have been tabled to reverse these back-room deals and to clarify the original position concerning users' rights.

While it is of course up to European citizens to decide for themselves what regulations they want to live under, as a participant in a global network, I hope that those who support the cause of citizens' rights will mobilize to establish those rights in law.

Can IP Law Save Newspapers?

The news that the Associated Press is going to rely increasingly on copyright and trademark law to staunch losses to its newsgathering business and its client/member newspapers does not bode well for the level of creative, entrepreneurial thinking needed in the Fourth Estate right now.

Robert Scoble has a nice post reflecting on the challenges facing the industry as currently structured and does a nice functional analysis of the assets news organizations still have to work with.

Open Access - Where is Columbia?

On Wednesday, April 8, I gave an open access presentation at Columbia University, and I asked the question why the university as a whole was not interested in demonstrating greater leadership in this area. The University Librarian, Jim Neal, has been a strong and important open access advocate for years. He has brought on Kenny Crews to help those on campus sort out the copyright issues. But, where is the rest of the campus?

Well, the good news, at least, is that two days later we saw that some of the students get it. Kudos for a very well done piece!

Physicists and the Harvard Mandate

Congratulations are due to the American Physical Society and the Harvard University Office of Scholarly Communication for working out an understanding about how Harvard plans to exercise its rights under the copyright license granted to it by the Faculty of Arts and Sciences. The press release is here.

This is further evidence that open access to authors' final manuscripts is consistent with the mixed subscription and page-charges model to fund the costs of publication and dissemination of research.