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 | Copyright Clearance Center’s First OnCopyright Seminar Addresses Complex Questions
Does copyright law need to be fixed? That was the question Villanova University’s Michael Carroll bluntly put forth during the “law” panel at the Copyright Clearance Center’s (CCC) first-ever OnCopyright conference, held at the Union League Club in New York City last Thursday. Billed as a “conversation about where copyright is headed,” the day-long event brought together an outstanding array of panelists to address copyright concerns in four areas: technology, society, law, and art. Nevertheless, when Carroll attempted to pin down his panelists on whether copyright needed a top-to-bottom overhaul, the panelists hedged, although copyright attorney Paul Fakler seemed inclined to answer yes.
“But as soon as I say that, it makes me nervous,” he said. “Because, who’s going to do it?” Fakler said he was concerned that copyright advocates today had become too polemical, with “piracy and theft” on one side of the debate and “information wants to be free” on the other. “That’s not going to forge a solution,” he said. True to Fakler’s observation, the law panel later led to the most heated exchange of the day when Association of American Publishers (AAP) lawyer Allan Adler reiterated publisher’s claims lodged in its lawsuit against Google over the company’s library scan plan. Google, Adler said, was in essence creating a valuable asset by illegally copying library books without permission. He was quickly rebuffed, however, by University of Virginia law professor Chris Sprigman, who said Google was not competing in “book provision” and that the scanning effort was transformative—to create an online index—something that offered significant public benefit. He suggested publishers were seeking little more than a “hold-up” payment from Google.
That exchange reflected the simmering tension introduced in the copyright realm by new technology, a tension explored in the day’s first panel, moderated by Sprigman, and featuring Kevin O’Kane, founder of “online content syndicator” for bloggers Red Lasso, and Clay Shirky, author of Here Comes Everybody. O’Kane discussed his nascent service, where users can find and freely link to clips from television and radio broadcasts—seeming to acknowledge the service may seem to take liberties with traditional notions of copyright law. He suggested, however, there was an innovate-first-ask-the-copyright-questions later aspect to its development, noting that useful services like Red Lasso would be impossible to launch otherwise. Shirky, meanwhile, pointed to the example of Napster, the pioneering peer-to-peer music-sharing network sued out of business in 2001 but not before it forever changed an industry. “Napster shows you can shut down software but not ideas,” he said.
In the “society” panel, Columbia University law professor Tim Wu used the example of Harry Potter creator J.K. Rowling’s current copyright infringement case against Steve Vander Ark, creator of The Harry Potter Lexicon, a web-based encyclopedia set to be published as a book, and a fan site dedicated to the TV series Lost as examples of copyright law clashing with societal values. Although the verdict in the Rowling/Vander Ark suit has yet to come down from the court, the verdict among fans has, Wu noted: Vander Ark has been cast out by the Potter fandom for breaching the trust of Potter creator Rowling. Even if the court finds Vander Ark’s use allowable, the panel noted, Potter fans have been critical and are refusing to embrace his work out of concern that offending Rowling, the creator, could jeopardize future derivative works.
In pointing to a fan wiki devoted to the TV show Lost online, Wu noted that the site contained a number of “clearly infringing” aspects, including transcripts of each episode. Rather than sue the site, however, ABC, which airs the show, has even advertised on it occasionally. On the law panel, Viacom attorney Stanley Pierre-Louis noted there was indeed a fine line between “infringement” on one hand and “marketing” on the other, adding that a transcript was not likely a substitute for watching the show.
Public Knowledge’s Gigi Sohn told conference goers that copyright law needs to accommodate the creation of such derivative works. She noted that Rowling embraced Vander Ark at one point—when his project was just online—but now seems most offended, as the project is set to become a book, that he simply didn’t do a very good job. “But artists,” she noted, “don’t have moral rights. If they did, derivative works wouldn’t be made.” That point was echoed in the final session on “art,” by Motherless Brooklyn author Jonathan Lethem. “When you talk to artists about their lives and points of origin, it is almost always a process that includes enormous acts of imitation, appropriation,” he said. “Artmaking is fundamentally a language. Nothing comes from nowhere…art is made of…things that are lying around, seen, misunderstood…some of that material…some of the stuff that’s going to stimulate creators is going to be protected. That’s where we get into this gray area that I think artists can describe better than a lawyer ever could.”
While the event was lively, and engaging, copyright in the educational realm or for libraries was not discussed, and no librarian sat on any panel, although the final session was moderated by New York Public Library events public program coordinator Paul Holdengraber. That would seem a glaring omission, given the size of the library and educational markets, the impact of technology, and the event’s host, the CCC—especially at a time when Harvard University has introduced a faculty open access mandate, and publishers are suing Georgia State University over copyright infringement over its e-reserves. Nevertheless, the first OnCopyright event offered an entertaining afternoon of insightful conversation on increasingly complex issues.
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Another TEACH Act? Library Association Voices Concerns with Orphan Works Bill
In letters to the House of Representatives and the Senate, the Library Copyright Alliance (LCA) this week expressed strong opposition to some provisions as well as suggested amendments to recent legislation introduced on orphan works. While thanking Congress for its willingness to engage the issue, the LCA, which represents five major library associations (American Association of Law Libraries [AALL], American Library Association [ALA], Association of Research Libraries [ARL], Medical Library Association [MLA], and Special Libraries Association [SLA]), stated in “unequivocal terms our strong opposition” to the House bill’s provision to create a registry, the so-called “dark archive” provision, to document use of an orphan work. The Senate bill, however, does not contain such a provision.
That “dark archive” provision in the House bill seeks to create a database, to be maintained privately but “certified” by the copyright office, to be accessed in the case of a lawsuit over the use of an orphan work. The registry would document a user’s “diligent” search efforts. It would also, however, dramatically increase the burden on those wishing to use orphan works—especially nonprofits, like libraries, and individuals. “The requirement will dramatically limit the utility of the legislation for libraries and other stakeholders,” LCA notes. Mandating that users file a notice will mean compliance costs, such as filing fees, creation of the filing, review of the filing by attorneys, and creation of new bureaucratic hurdles for mass digitization efforts, burdens that will “provide no additional protection for owners but will impose costs so great on noncommercial users that they simply will not employ the orphan works provision.”
That rhetoric raises concerns that the orphan works bill could become another TEACH Act. Passed in 2002, the TEACH Act was designed primarily to accommodate the online use of audiovisual materials in distance education, after considerable input from librarians and stakeholders. But its provisions have since proven to be so burdensome in practice that many librarians and educators say the law is nearly useless.
Although the “dark archive” provision appears to be a deal breaker for the library community, there is hope the provision will be struck and the Senate bill embraced. “While we strongly support legislation resolving the orphan works problem, we recommend the Senate version of the bill over the House version,” reads an ALAWASH alert issued this week, urging librarians “to communicate the library community’s enthusiastic support for orphan works legislation that does not include a dark archives provision.”
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| ACRL Announces Speakers for 14th National Conference
The Association of College and Research Libraries (ACRL) announced this week the speakers for its 14th National Conference, to be held March 12–15, 2009, in Seattle. The opening Keynote Session, March 12, will be delivered by journalist, author, and activist Naomi Klein (The Shock Doctrine: The Rise of Disaster Capitalism). The Keynote Luncheon speaker, on March 13, will be Sherman Alexie, the prolific Seattle-based novelist, poet, and screenwriter. Alexie has published 17 books, collaborated on three movies, and even dabbled in stand-up comedy. The closing keynote will be delivered by Ira Glass, radio producer and host of This American Life. Registration will open in mid- to late September 2008. For more information, contact Tory Ondrla, ACRL Conference Supervisor, at tondrla@ala.org.
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| Internet Archive Fights Off National Security Letter
The Internet Archive—a vast collection of web sites and other born-digital files, including the Wayback Machine—may be an unusual library, but it is a library nonetheless, and its adherence to library principles helped lead it to fight successfully a National Security Letter (NSL) seeking information about a library user issued under the USA PATRIOT Act. The Internet Archive’s Brewster Kahle went public this Wednesday, declaring, in a conference call with reporters, the effort “an unqualified success that will help other recipients understand that you can push back on these."
The Internet Archive, represented by the American Civil Liberties Union Foundation and the Electronic Frontier Foundation, challenged the constitutionality of the NSL, arguing that “its gag and secrecy provisions violated the First and Fifth Amendments.” The case, however, filed in federal court in San Francisco after the NSL was delivered last November 26, never made it to trial. A settlement, in which the FBI agreed to withdraw the letter and make documents public—as long as some redactions remained—meant that no court addressed the underlying constitutionality of the NSL statute.
While the NSL statute was enacted by Congress in 1986, in 2001 the Patriot Act, expanded the FBI’s power to issue NSLs. At first, recipients were prohibited from challenging NSLs; the statute was amended in 2006 to allow for such a challenge. The NSL statute allows the FBI, without judicial review, to impose a gag order on recipients, but the recipient may ask a court to modify or set aside the gag order.
In this case, the FBI sought the “subscriber name, address, length of service, and electronic communication transactional records” related to an archive user. More details have not been made public. Kahle, according to Wired, called the gag order “horrendous,” noting that he couldn’t discuss the case with his board members, wife, or staff. He said his position was in the tradition of librarians protecting the rights of their patrons; indeed, legal papers point out that the Internet Archive is a member of the American Library Association and eligible to receive telecommunications discounts under the Library Services and Technology Act (LSTA).
Kahle, in legal papers, also argued that while the law authorizes the issuance of an NSL to “an electronic communications service provider,” the Internet Archive is not such a provider and that libraries in general are not providers. Kahle noted that the Internet Archive actually stores little nonpublic information; it doesn’t log IP addresses but does keep unverified email addresses for those who choose to provide it, according to Wired.
Assistant Director John Miller of the FBI's Office of Public Affairs offered a statement that didn’t quite explain why the FBI relented: “The information requested in the National Security Letter was relevant to an ongoing, authorized national security investigation,” he said. “Internet Archive voluntarily provided publicly available information to the FBI and identified for the FBI that information it possessed which was not publicly available. Internet Archive’s refusal to disclose this information formed the basis of its civil suit, which the parties have now resolved through settlement. As part of the settlement in this case, the FBI withdrew the National Security Letter and all parties have agreed not to disclose certain portions of the NSL, as well as portions of other documents, as part of the settlement agreement.”
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Best Sellers in Microbiology, August 2007–present, as compiled by YBP Library Services
(13-digit ISBNs in brackets)
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Good Germs, Bad Germs: Health and Survival in a Bacterial World
Sachs, Jessica Snyder
Hill & Wang
2007. ISBN 0809050633 [9780809050635]. $25.00
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In Defense of Self: How the Immune System Really Works
Clark, William R.
Oxford University Press
2008. ISBN 0195336631 [9780195336634]. $75.00
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Janeway's Immunobiology
Murphy, Kenneth, et al.
Garland
2008. ISBN 0815341237 [9780815341239]. $95.95
-
Mims' Medical Microbiology
Goering, Richard et al.
Elsevier Mosby
2008. ISBN 0323044751 [9780323044752]. $69.95
-
Food Microbiology
Adams, Martin R.
Royal Society Chemistry
2008. ISBN 0854042849 [9780854042845]. $59.95
-
Kuby Immunology
Kindt, Thomas J.
W H Freeman
2007. ISBN 1429202114 [9781429202114]. $108.65
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Evolutionary Biology of Bacterial and Fungal Pathogens
Baquero, Fernando
American Society for Microbiology
2008. ISBN 155581414x [9781555814144]. $119.95
-
20th Century Microbe Hunters: Their Lives, Accomplishments, and Legacies
Krasner, Robert I.
Jones & Bartlett
2008. ISBN 0763742015 [9780763742010]. $34.95
-
Basic Virology
Wagner, Edward et al.
Blackwell
2008. ISBN 1405147156 [9781405147156]. $100.00
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Viruses and Human Disease
Strauss, James H.
Elsevier Academic Press
2008. ISBN 0123737419 [9780123737410]. $79.95
-
Microbial Risk Analysis of Foods
Schaffner, Donald W.
American Society for Microbiology
2008. ISBN 1555814611 [9781555814618]. $99.95
-
Superantigens: Molecular Basis for Their Role in Human Diseases
Kotb, Malak
American Society for Microbiology
2007. ISBN 1555814247 [9781555814243]. $129.95
-
Foodborne Diseases
Simjee, Shabbir
Humana
2007. ISBN 1588295184 [9781588295187]. $149.00
-
Thermophiles: Biology and Technology at High Temperatures
Robb, Frank
CRC Press
2008. ISBN 0849392144 [9780849392146]. $159.95
-
Myxobacteria: Multicellularity and Differentiation
Whitworth, David
American Society for Microbiology
2008. ISBN 1555814204 [9781555814205]. $169.95
-
Nidoviruses
Perlman, Stanley
American Society for Microbiology
2008. ISBN 1555814557 [9781555814557]. $169.95
-
Biofilm Mode of Life: Mechanisms and Adaptations
Kjelleberg. Staffan
Horizon Bioscience
2007. ISBN 1904933335 [9781904933335]. $208.00
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Handbook of Food Spoilage Yeasts
Deak, Tibor
CRC Press
2008. ISBN 1420044931 [9781420044935] $149.95
-
Agrobacterium: From Biology to Biotechnology
Tzvi Tzfira
Springer
2008. ISBN 0387722890 [9780387722894]. $149.00
-
Mucosal Immune Defense: Immunoglobulin A.
Kaetzel, Charlotte Slayton
Springer
2007. ISBN 0387722319 [9780387722313]. $129.00
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