The Taper

The Taper
Copyright and Information Policy at the UVA Library

Let them eat cake (that they made, reviewed, gave away for free, and now have to buy back at an absurd markup)

Suppose there was a wholly state-funded bakery, whose aim was to create world-class cakes and to encourage the development of excellent cake-baking. Everyone in the bakery – the master bakers, the managers, the kitchen assistants, the human resources consultants, the cleaners – is paid by the state. But the bakery is not allowed to give or sell the cakes directly to the public.

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The Latest in GSU, or, We Must Imagine Judge Evans Happy

“The struggle itself … is enough to fill a man’s heart. One must imagine Sisyphus happy.”

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Text of my remarks in today's Hyde Park Debate on Freeing Scholarship

This afternoon I had the pleasure of engaging in an Oxford-style debate sponsored by the Charleston Library Conference. The topic? “Resolved: all scholarship must be made freely available for access and reuse.” I argued in favor, and I’m proud to say I “won” (which, in the rules of this kind of debate, means that more people changed their mind in favor of my side over the course of the debate). It was fun, and I wanted to reproduce my opening statement and rebuttal here, in case you’re interested in reading them. My opponent, Angela Cochran, was a great sport and raised important issues that I think we should address—after we make all scholarship free to read and reuse. :)

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The -2.5% Commitment: A Modest Proposal for OA Week

The way to start spending less on toll access literature is to start spending less on toll access literature. Start today. Libraries should slowly but surely divest from the biggest vendor oligopolies and invest instead in open alternatives. For decades they’ve been steadily growing their prices at rates that consistently outstrip inflation, the CPI, and our own budgets’ rate of growth, and they long ago outgrew any value proposition associated with the Big Deal. It is time to divest. Call it the “Negative 2.5% Commitment.”

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Libraries, Archives, and Museums: Stop Worrying About the Digital Locks on Software! (But you still need fair use.)

So the new round of DMCA rules came out this Thursday morning! They were actually prereleased on Thursday, will be printed in the Federal Register on Friday, and will go into effect on Sunday, 10/28. The amazing Harvard Cyberlaw Clinic, who took the lead in securing the rules protecting software and video game preservation, is working on an explainer that I’m sure will be more thorough and probing, but I know folks are itching for a quick digest. So, in 400 words or so, what do the new rules mean for software preservation?

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Björn Brembs on the Problems with Journal Impact Factor

In the latest episode (#9) of the podcast Science for Progress, Björn Brembs, a trenchant critic of the status quo in scientific publishing, lays out his critiques of the Journal Impact Factor, and suggests a radical alternative for awarding positions or funding among a pool of qualified candidates: random chance. Here’s a direct link to the MP3.

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L'Affair ResearchGate Continues with US Lawsuit

From Gary Price’s InfoDocket comes news that Elsevier and ACS have filed a copyright infringement suit against ResearchGate in federal court in Maryland. The suit mirrors a similar one filed almost a year ago by the same publishers in a German court.

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The Incentives

[T]he argument that we’re all being egregiously and continuously screwed over by The Incentives is just not that good. I think there are a lot of reasons why researchers should be very hesitant to invoke The Incentives as a justification for why any of us behave the way we do. I’ll give nine of them here, but I imagine there are probably others.

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Introducing the Code of Best Practices in Fair Use for Software Preservation

I’m really excited about this. Today the Association of Research Libraries is publishing something I’ve been working on for a while now with a really wonderful team of facilitators and an amazing community of practitioners: the Code of Best Practices in Fair Use for Software Preservation. ARL has a detailed press release here, but I wanted to add a few of my own thoughts on the import of the document.

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Transformative announcement from HathiTrust

This is a big deal:

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George Monbiot Pulls No Punches

Most of the work involved in writing the papers, reviewing and editing them is carried out at public expense by people at universities. Yet this public asset has been captured, packaged and sold back to us for phenomenal fees. Those who pay most are publicly funded libraries. Taxpayers must shell out twice: first for the research, then to see the work they have sponsored. There might be legal justifications for this practice. There are no ethical justifications.

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Aperio Press Announces Its First Journal: the Journal of Modern Philosophy

Aperio is pleased to announce the launch of our first publication, the Journal of Modern Philosophy.

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Free our Knowledge - a new kind of academic author boycott

We plan to grow a community of academics who pledge to exclusively support community-owned free open access publication systems. Crucially, pledges made by members will only become active when a pre-specified threshold of support has been reached, with names anonymised until this time, allowing individuals to show support without risking their livelihoods.

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Publishing in the open multiplied Michael Nielsen's impact 100X

Check out this extraordinary Twitter thread by @michael_nielsen telling the story of his open monograph, “Neural Networks and Deep Learning.” Publishing his book online, free for all, got Nielsen millions of views, hundreds of thousands of reader-hours, and readership all over the world, including in places where a closed monograph would never have been accessible. He acknowledges benefiting from writing in a “hot” area, but even so, estimates that OA gave him a ~100X advantage in impact over closed publishing of the same content. He also saw pretty healthy citation rates, meaning the book is “legible” in the academic prestige economy on sites like Google Scholar.

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The Vanderbilt Television News Archive and Market Failure

On a business trip to New York in March 1968, Simpson toured each of the three [television] networks. At each stop, he asked to see a broadcast from the previous month. They all told him that they weren’t available – they only saved their broadcasts for about two weeks because it was too expensive to preserve them.

*from Fifty Years Ago, a Conservative Activist Launched an Effort to Record All Network News Broadcasts, Smithsonian Magazine*

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What do “Predatory Publishers” signify?

In a recent blog post, Rick Anderson touts a series of new studies on publishers who (mostly) lie about their value, including fictional editorial boards, false metrics, hasty or non-existent peer review processes, and more. People have a lot of opinions about these publishers, and there’s been a fair amount of scholarly writing about them, with much of the interest focused on various ways of figuring out if they are a “real problem” for the academy. Anderson says we now have more proof that “predatory publishers” (PP for short) are a real problem, and notes in a comment that, coincidentally, he’s organizing a “summit group of schol-comm stakeholders” to devise solutions.

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Coming this Fall, Paywall: The Movie

Paywall: The Movie looks like a compelling presentation of the issues that preoccupy me, personally, for many of my waking hours every day. We’ll be screening the film in October (currently 10/25, tentatively)—watch this space for more info as the date approaches.

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You Were Always On My Mind (But I Failed to Give You Credit)

Yesterday Judge Claria Horn Boom (what a great name—right up there with Washington Nationals baseball player Spencer Kieboom) of the Eastern District of Kentucky issued a nice opinion(PDF), IMO, finding infringement against a radio station that used a CC-BY photo of Willie Nelson (I’m now terrified of being sued for misattributing a CC-BY photo (more on that later), so you’ll have to click through to see it) without the attribution or license information required by the CC-BY terms. The photographer, Larry Philpot, had posted the photo to Wikipedia Commons, and sent a cease-and-desist letter to the radio station when he found the photo, sans attribution or license info, used on the station’s website to promote an upcoming Nelson concert.

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Judge Kavanaugh and Information Policy: A Small Observation

As I’m sure you’ve heard by now, last night the President announced his nomination of Judge Brett Kavanaugh of the D.C. Circuit to the Supreme Court. There is no shortage of information about Judge Kavanaugh in the media, and there will surely be much more in the coming weeks, but I wanted to call your attention to one of his opinions that has already taken center-stage among folks interested in information policy: a remarkable dissent from the DC Circuit’s opinion upholding the FCC’s net neutrality rules. (Well, not to get too wonky, but it was actually a dissent from a decision not to re-hear the case en banc, i.e., with all of the judges in the D.C. Circuit, after a smaller panel had upheld the FCC’s rule.)

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Jon Tennant in Aeon: Scholarly publishing is broken. Here’s how to fix it

If you’re a scholar looking for a list of things to do to reform the awful, evil, stupid, unjust scholarly publishing system, you could do a lot worse than this list from Jon Tennant’s recent article in Aeon:

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Big Deals Eat Our Seed Corn

We are finding it difficult to convince individual universities or funders to commit to supporting us even at the basic level of €1,000 per year, since their budget is eaten up by all the insistent (and well-calculated) invoicing from for-profit publishers.

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Big Deal Cassandra

Academic library directors should not sign on to the Big Deal or any comprehensive licensing agreements with commercial publishers.

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Bob Schwartz on The Demise Of Copyright Toleration

Although denying fair use, these content owners were acknowledging a larger truth about copyright, the Internet, and even the law in general: It works largely due to toleration. Not every case is clear; not every outcome can be enforced; and not every potential legal outcome can be endured. Instead, “grey area” conduct must be impliedly licensed, or at least tolerated.

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We don't need a new license, or anything more restrictive than CC-BY, for open access

CC-BY does indeed allow resale — of something that is already on the Internet for free. Anyone who pays for an object under CC-BY is either making a donation, or is paying a tax for being inept at searching the Internet. And a few key elements of CC-BY make it possible to prevent dastardly uses.

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UMaryland's Philip Cohen on the dysfunctional social science publishing process, and the promise of SocArXiv

Like the U.S. healthcare system, academic publishing is laboring under the burden of supporting its usurious middlemen. Getting them out of the way is a problem of politics and organization, not technology or cost. We academics do all the work already – research, writing, reviewing, editing – contributing our labor without compensation to giant companies that claim to be helping us get and keep our incredibly privileged jobs. But most of us are supported directly or indirectly by the state and our students (or their banks), not the journal publishers. We don’t need most of what the journal publishers do any more, and working for them is degrading our research, making it less innovative and transformative, less engaging and engaged, less open and accountable.

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What Happens When Science Just Disappears?

In the quest to create a universally accessible online archive, individual humans’ downloads and printouts, hoarded offline, are the only things that can complete the catalog.

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UVA Today: Faculty, Students, and Librarians Are Building Open Anthologies of English Literature at UVA

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Study finds that for-pay scholarly journals contribute virtually nothing to the papers they publish / Boing Boing

Via Boing Boing, a new study finds that for-pay scholarly journals contribute virtually nothing to the papers they publish.

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Distinguishing Library and Archival Uses of TV News from TVEyes

This blog post reprints an addendum I wrote to a short legal consultant’s report on the legal issues around archiving television news. The full report and the addendum will be available soon from Vanderbilt’s scholarly repository under a CC-BY license.

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How Is an App Like a Player Piano? And Does That Help the Fair Use Case for Software Preservation?

Happy Fair Use Week! Today I want to write a little about software. I’ve been working a lot with software preservation folks, lately, and trying to think about the kinds of challenges they face due to copyright. I’m hopeful the community can find fair use solutions to at least some of those challenges, but in the meantime I’ve been struck by one unique aspect of software from a copyright perspective: in many ways it’s more like a player piano than a piano roll. Courts have taken this functional aspect of software into account in many contexts, and I’m hopeful that this will make it a good candidate for fair use arguments in the preservation context.

Why am I talking about player pianos? Well, there’s a great case, typically taught fairly early in most copyright courses, called White-Smith v. Apollo, a 1908 case that deals with the copyright consequences of the then-new player piano technology. (New tech is often a challenge to copyright, which is in many important ways a regime of technology regulation, focused on copying technologies. Every time the law seems to have tamed a given technological paradigm, a shift comes along and unsettles things!) The question for the court was whether the piano rolls that allowed a player piano to play songs were “copies” of protected musical works for purposes of copyright law. If they were, the music publishing companies’ permission would be needed before manufacturing new rolls that encoded songs they control. As the Supreme Court noted in its opinion, “the question involved in the use of such rolls is one of very considerable importance, involving large property interests, and closely touching the rights of composers and music publishers.” The publishers brought suit.

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For text- and data-mining, fair use is powerful, but possession is still 9/10 of the law

Cross posted at SPARC for Fair Use Week!

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Guest Blog: Student Remixer Tyler Garling on the Cultural Shift (Back) Toward Sharing

The following guest blog post was written by Tyler Garling, a student who recently took Steph Ceraso’s Remix class. Tyler will be talking about his audio remix project at our Fair Use Week event, The State of the Remix @ UVA, today, Feb. 27, from 9am-Noon at Harrison-Small Auditorium. Below Tyler talks about the ethos of remix—a vision of creativity that is open and collaborative. Fair use exists to enable exactly that kind of ethos, so this is a great way to continue our celebration of Fair Use Week 2018.

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9 Months Is A Long Time To Wait For Science News

From NPR’s Weekend Edition, a nice summary of one of the many dysfunctions in scientific publishing, which is really a dysfunction in science: the lag time and unreliability of peer review. Scientists Aim To Pull Peer Review Out Of The 17th Century

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Fair Use Week 2018 Kickoff: Getting Ready for *The State of the Remix @ UVA* by Revisiting the Renaissance

Fair Use Week is here! It’s the special week each year when we take a little time to celebrate the most important part of the Copyright Act (IMHO)—Section 107, the flexible, judge-made doctrine that permits free, unlicensed use of copyright-protected works for valuable cultural purposes.

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What's eating software?

Software may be eating the world, but something even bigger is eating software: copyright. Specifically, the fear of copyright among the professionals tasked with keeping legacy software alive and useful for future generations. That’s what I and my co-authors conclude in a report released today by the Association of Research Libraries, part of a project funded by the Alfred P. Sloan Foundation.

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TFW Your Wonky Policy Issue Becomes a Snappy Burger Ad

Libraries have been fighting for net neutrality for more than a decade. As usual, we were way ahead of the curve; now fast food chains are getting in on the act! It’s almost enough to make you want to go eat a Whopper. More from AdWeek:

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George Mason University’s OER Metafinder Search Tool: The Back Story

This looks like a really powerful tool that solves a very real problem - how to find quality OER when it’s spread across so many disparate locations? Mason’s page seems like the perfect starting point for any faculty member wondering if they could make the switch to OER for their course, or add value with open content.

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Compelling arguments: Open access in Germany: the best DEAL is no deal

A compelling new op-ed in Times Higher Ed, by Björn Breembs and Alex Holcombe:

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New Resource: The Authors Alliance Guide to Fair Use for Nonfiction Authors

This Wednesday the Authors Alliance published an extremely useful new document about fair use that I think will be helpful for virtually everyone at UVA who is creating original works of scholarship, research, and criticism: —The Authors Alliance Guide to Fair Use for Nonfiction Authors. The guide follows in the footsteps of a long and distinguished series of fair use best practices’ documents and identifies three core scenarios where fair use will apply to non-fiction writing that uses third-party copyrighted material.

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F.C.C. Announces Plan to Repeal Net Neutrality

F.C.C. Announces Plan to Repeal Net Neutrality - The New York Times

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Publishers’ Dispute with ResearchGate: What Researchers Need to Know

Academic publishers have long had an uneasy relationship with academic social networks (ASNs) like Academia.edu and ResearchGate, which facilitate sharing of journal articles. STM, the association of STEM publishers, developed its own narrow definition of permissible academic sharing as a way to constrain these sites. Then a group of STEM publishers (ACS, Elsevier, Wiley, Brill) signaled its displeasure with ResearchGate by demanding it sign on to the STM principles and develop technical measures to enforce them on its site. When ResearchGate refused, publishers in the group sent takedown notices for articles taken from journals they publish. Most recently, two publishers (ACS and Elsevier) filed a lawsuit against the site in Germany, where ResearchGate is based, alleging widespread copyright infringement.

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Toward a Code of Best Practices in Fair Use for Software Preservation

I’m very excited to share that I’m working with my good friends at the Association of Research Libraries, including ARL’s Krista Cox, and the creators of the fair use best practices method, Peter Jaszi and Pat Aufderheide at American University, on a new project: a code of best practices in fair use for software preservation. With generous funding from the Alfred P. Sloan Foundation, and in close collaboration with the Software Preservation Network, we are learning about the current state of the field, then we’ll be helping the community to deliberate collectively about ways fair use can support its vital work.

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We Launched a New Institutional Repository. Here's why.

A guest post by Ellen Catz Ramsey, UVA’s Director of Scholarly Repository Services.

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Predatory Publishing: From "Fake Academia" to Real Extortion in Scholarly Publishing

Way back in March I gave a talk as part of the UVA Medical Center Hour series on the phenomenon of so-called “predatory publishing,” and I used that as a starting point for a much broader conversation about forms of predation in academic publishing.

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Recent Supreme Court IP Cases Through a Library Lens

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The Department of Education Open Licensing Rule Went Into Effect This Week

As of this Monday, May 22, 2017, the Department of Education’s Open Licensing Rule is in effect. The Rule helps ensure broad public access to the products of federal grant-funded education research. Federal investments in this area can yield great benefits to the public, and requiring a plan for public access that includes broad licenses to encourage reuse will help multiply those benefits. SPARC has an excellent overview of the rule, including the full text and links to relevant laws and regulations.

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Does Fair Use Affect Academic Authors’ Incentive to Write? Some Lessons from Authors of Works from the GSU Course Reserves Case

This post was co-authored by David Hansen and Brandon Butler and cross posted on The Taper and on Duke University Libraries’ Scholarly Communications Blog.

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Green Shoots in Spring at the Library of Congress and the Copyright Office

Imagine if you could download a .ZIP file with every single Copyright Office record, from the beginning of time thru, say, 2014, in a standardized and searchable format, free online. Who owns what, when it was published, whether it was renewed, even (dare to dream) when copyrights were sold or licensed exclusively to others, all in your choice of standard formats. What could people build around that free dataset? What could scholars learn? What deals could get done to revive forgotten works for new audiences?

I ask because the Library of Congress just did the equivalent with its MARC records, the electronic version of cards in a card catalog. The Library released 25 million records, its largest public data release ever, for free bulk download online. For years the Library has diligently created, compiled, updated, and distributed these records to libraries through a subscription service, which it will still offer. (The free bulk download doesn’t include the last 2 years’ worth of data, to preserve some incentive for institutional users to maintain the subscription service, presumably a cost-recovery mechanism that supports creation and maintenance of the data).

This is noteworthy because it is deeply inconsistent with the argument from supporters of HR 1695 that the Copyright Office needs to cut ties from the Library in order to “modernize” its information services.

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Operationalizing Non-Consumptive Fair Use with the HathiTrust

Check out this little piece I wrote for the HathiTrust, explaining the new non-consumptive use policy that a group of us helped to craft to guide researchers as they seek to make lawful fair use of the millions of in-copyright volumes in the HathiTrust library.

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Fair Use and Open Access: Two Great Tastes That Taste Great Together

cross-posted at Harvard’s Library Copyright Blog

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Some thoughts on the next Register of Copyrights

From Kyle Courtney, Mary Minow, and me, posted at the Library Journal here. Also, I wrote up a little tweetstorm this morning about the last Register’s new job, the revolving door, and the risk of cultural capture.

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Libraries and Copyright: 42 Experts Weigh In

Today I sent a letter on behalf of 42 copyright lawyers, scholars, and expert librarians to leaders in Congress. In it, we explain the rich relationship between libraries and copyright, and urge Congress to keep the Office where it has lived for more than a century: inside the Library of Congress. We hope this letter will be a useful input as the House Judiciary Committee considers the first part of its copyright reform agenda, announced earlier this week in a one-pager and short YouTube clip focused on the Copyright Office. The Duke University Libraries sent a fantastic letter yesterday, the Library Copyright Alliance (LCA) issued a clear preliminary statement, and I expect there will be more input from the library community as this discussion continues.

Our letter was originally prompted by another letter,

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The Fallacy at the Heart of the Publishers' Latest GSU Brief

Fellow man! Your whole life, like a sandglass, will always be reversed and will ever run out again, - a long minute of time will elapse until all those conditions out of which you were evolved return in the wheel of the cosmic process. And then you will find every pain and every pleasure, every friend and every enemy, every hope and every error, every blade of grass and every ray of sunshine once more, and the whole fabric of things which make up your life.

Friedrich Nietzsche, Notes on the Eternal Recurrence

In times of great change and tumult, we in library- and copyright-land can take a measure of comfort in at least one eternal recurrence: the Georgia State course reserves case grinding on and on.

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Working the Ref on Copyright Office Reform

Change is in the air in Washington, D.C., and everyone is talking about it. Of course I’m referring to the Copyright Office. The Washington Post and the Wall Street Journal have both run pieces full of wild speculation about sinister forces conspiring with the new Librarian of Congress, Dr. Carla Hayden, to change the guard at the Copyright Office in order to, like, undermine copyright as we know it, man. Libraries let people read books for free, Don Henley told the Post, so firing former Register of Copyrights Maria Pallante must be part of a library-tech conspiracy to suppress the royalty rates YouTube pays to songwriters.

Wait, what?

The strangest thing about all this conspiracy theorizing (other than the WSJ calling Pallante a “patent defender”—wrong IP, dudes) is that it starts with the idea that the Librarian’s move is a mystery that can’t be explained by available facts. I don’t have access to any insider info, but I don’t think I need it: former Register Maria Pallante didn’t think she should be working for the Library. The Librarian apparently agreed. The end.

So what’s really going on?

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Compromised? Responding to Department of Energy’s “Grand Compromise”

In this guest post, UVA Open Publishing Librarian Dave Ghamandi provides commentary on the state of the federal government’s open access policies, and in particular a response to the Department of Energy’s recent blog post on the “compromises” involved in working with publishers to provide open access to federally-funded scholarship. It’s important to applaud our friends in government when they move in the right direction—and they have certainly done that, as Jerry Sheehan’s recent Open Access Week round-up makes clear. But Dave’s message here is equally important: we must also question dubious compromises and half-measures along the way, before they harden into accepted practice.

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Welcome to the Taper

Welcome to The Taper, a blog about copyright and related library policy issues as seen from my office at the University of Virginia Library, the spiritual (and, originally, the physical) heart of Thomas Jefferson’s “academical village.” I’m Brandon Butler, the new(-ish) Director of Information Policy for the Library, and I’ll be the blog’s primary author. It will also be my privilege to host guest posts from my colleagues at the Library and beyond, who will appear on these pages in the coming days and weeks to share their thoughts on the policy scene and let you know about all the cool stuff they are doing to foster a better-functioning ecosystem for teaching, learning, and scholarship, on Grounds and beyond. Read on for some thoughts on the blog’s name and our Founder’s founding insight.

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