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.
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.)
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:
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.
Academic library directors should not sign on to the Big Deal or any comprehensive licensing agreements with commercial publishers.
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.
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.
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.
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.
UVA Today: Faculty, Students, and Librarians Are Building Open Anthologies of English Literature at UVA
Study finds that for-pay scholarly journals contribute virtually nothing to the papers they publish / Boing Boing
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.
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.
Cross posted at SPARC for Fair Use Week!
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.
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
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.
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.
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:
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.
A compelling new op-ed in Times Higher Ed, by Björn Breembs and Alex Holcombe:
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.
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.
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.
A guest post by Ellen Catz Ramsey, UVA’s Director of Scholarly Repository Services.
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.
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.
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.
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.
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.
cross-posted at Harvard’s Library Copyright Blog
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.
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,
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.
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.
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?
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.
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.