Archive for January 2006
Library Copying in the Digital Age
A. INTRODUCTION
This edition of CommuniK.™ features the fourth part of a series about copyright law exceptions that are available to libraries, schools, and archives. The article discusses Section 108 of the 1976 Copyright Act, which generally lets libraries and archives make and distribute copies of protected works for preservation and scholarly purposes.
Like Section 109, however, the continued viability of the Section 108 library exceptions is being challenged by a confluence of factors that includes license contracts, digital media, and publisher resistance. Copyright stakeholders met a decade ago to retrofit Section 108 for digital media; those negotiations ended in a stalemate. Now, the Library of Congress has convened a Section 108 Study Group in another attempt to reconcile the broad copyright exceptions libraries and archives receive with the publishing industry’s concerns about decreasing revenues.
This article analyzes the library exceptions through the prism of a common hypothetical scenario. It also discusses the librarian’s due diligence requirements under Section 108, the affect of license contracts on Section 108, and the work of the Section 108 Study Group.
Portions of this article originally appeared in the July/August 2005 edition of Online magazine. It has been updated substantively, and includes new “Resources” and “Metadata” sections.
Editor’s Note: This article was updated on Feb. 22, 2006 in two ways. First, additional articles have been added to the RESOURCES section. Second, additional information about the applicability of Section 108 to for-profit libraries has been appended to Section D1.
Proposed Outline of “Responsible DRM”
“It’s strange, but it turns out that Sony, with its damn-fool rootkit attempt at digital rights management, might actually turn out to have done the world a huge favour. Until that story broke in November, DRM was such an arcane subject that only weirdos like us wanted to talk about it much. After all, anyone who was against DRM was a thief and a pirate by nature, surely.
“Then Sony did its evil deed, and the next thing you know, DRM is in the headlines and all of a sudden everyone cares. It’s wonderful.
“So what with one thing and another, I’ve been trying to come up with a list of what ought to be the principles of ‘Responsible DRM.’ Herewith.”
Wendy M. Grossman. Digital Rights Manifesto Revealed. The Inquirer. Jan. 20, 2006.
CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.
Canadian Label Helps Family Fight RIAA Lawsuit
“Canada’s largest privately owned record label — which represents such homegrown successes as Avril Lavigne, the Barenaked Ladies and Sarah McLachlan — has joined one Texas family’s fight against the Recording Industry Association of America.”
“Vancouver-based Nettwerk Music Group has taken up the cause of David Greubel and his family, who are being sued by the RIAA for songs they had indirectly offered through a peer-to-peer file-sharing program installed on their computer. The Greubels have been told the RIAA would accept a payment of US$4,500 if it was received during a specific timeframe, but Nettwerk has convinced the family to fight the case, and has pledged to pay for all of the family’s legal fees, in addition to any fines they might receive should they lose.”
Geoff Martin. Canadian Record Label Taking on the RIAA Over Lawsuits. Canada.com. Jan. 27, 2006.
CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.
Increased Control Should Bring Increased Fair Use
“Whether we’re aware of it or not, the doctrine of fair use built into copyright law is one of the most important protections available to scholars, librarians, and students. Every time you quote from someone else’s work, every time you photocopy an article for a student, every time you read a passage aloud to your class, you are technically in violation of copyright.
“The reason that an army of publishers and FBI agents aren’t smashing down your office door is that U.S. jurisprudence has long understood that a totalizing approach to copyright would be disastrous. Fair use is the only way we as individuals can together do what is fundamentally a collective endeavor, scholarship, in an information ecology that otherwise lives and dies by the intensely individualizing force of the marketplace.
“But fair use has been carrying a heavy load lately, and it’s starting to show its limitations.”
Tarleton Gillespie. Everything to Everyone. Inside Higher Ed. Jan. 27, 2006.
CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.
EBay Fraud Lawsuit Could Affect E-Commerce
“A year ago Jacqui Rogers, a retiree in southern Oregon who dabbles in vintage costume jewelry, went on eBay and bought 10 butterfly brooches made by Weiss, a well-known maker of high-quality costume jewelry in the 1950’s and 1960’s. At first, Ms. Rogers thought she had snagged a great deal. But when the jewelry arrived from a seller in Rhode Island, her well-trained eye told her that all of the pieces were knockoffs.
“Even though Ms. Rogers received a refund after she confronted the seller, eBay refused to remove hundreds of listings for identical “Weiss” pieces. It said it had no responsibility for the fakes because it was nothing more than a marketplace that links buyers and sellers.
“That very stance is now being challenged by eBay users like Ms. Rogers who notify other unsuspecting buyers of fakes on the site. And it is being tested by a jewelry seller with far greater resources than Ms. Rogers: Tiffany & Company, which has sued eBay for facilitating the trade of counterfeit Tiffany items on the site.”
Katie Hafner. Seeing Fakes, Angry Traders Confront EBay. The New York Times. Jan. 29, 2006.
CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.
Why Can’t You Play DVDs on Your iPod?
“Apple Computer’s video iPod may not be the first portable movie player, but it is by far the best. The one serious flaw in this svelte little device is how difficult it is to load with video. Apple’s otherwise handy iTunes application flatly refuses to transfer a legally purchased DVD to the iPod.
“Don’t blame Apple for this glaring oversight. You can thank our esteemed public servants in Congress.
“In 1998, politicians bowed to pressure from the entertainment industry and voted overwhelmingly for the Digital Millennium Copyright Act. Part of that law made it a federal offense to sell or distribute software that can rip DVDs.”
Declan McCullagh. Can Video iPod Lead to DMCA Reform? News.com. Jan. 23, 2006.
CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.
Google Privacy Case Is Inside Baseball
“The Justice Department went to court last week to try to force Google, by far the world’s largest Internet search engine, to turn over an entire week’s worth of searches. The move, which Google is fighting, has alarmed its users, enraged privacy advocates, changed some people’s Internet search habits and set off a debate about how much privacy one can expect on the Web.
“But the case itself, according to people involved in it and scholars who are following it, has almost nothing to do with privacy. It will turn, instead, on serious but relatively routine questions about trade secrets and civil procedure.”
Adam Liptak. In Case About Google’s Secrets, Yours Are Safe. The New York Times. Jan. 26, 2006.
(Editor’s Note: The Times allows free access to their stories on the Web for seven days before sending the stories to the paper’s fee-based Archive.)
CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.
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