Cornell Agrees to Publishing Industry Reserve Guidelines
Cornell University. Cornell University and Publishers Announce New Copyright Guidelines Governing Use of Digital Course Materials. Sept. 19, 2006. We assiduously avoid reporting on press releases because they don’t constitute news, but this release from Cornell is important because we believe it signals the publishing industry’s attempt to circumvent both the Section 108 and Section 110 exceptions.
The press release notes that the new guidelines “govern the use of electronic course materials on the library’s electronic course reserves system, on faculty and departmental web pages, and through the various ‘course management’ web sites used at Cornell” and “affirm that the use of such content is governed by the same legal principles that apply to printed materials.”
Like the broadcasters’ attempt to ram Webcasting protections through the treaty process, we believe this an attempt to bypass federal copyright law thorough a private agreement between private actors. The Association of American Publishers has been clanging swords over e-reserves for at least a year, and now it gets a major Ivy League institution to sign off on this sort of agreement. And if the “guidelines” are consistent with copyright law, why are they necessary at all? This seems extraordinarily fishy.
(Editor’s Note: Copycense editors originally commented on this article in the Oct. 2, 2006, edition of Copycense Clippings.)
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CopyCense Clippings v. 0.8
This week provides a double dose of Clippings, as other obligations kept us from posting last week’s edition. This week’s edition features an editorial on the H-P leak investigation scandal.
Article of the Week
In lieu of an AoTW, we’ve decided to comment on the H-P leak investigation scandal.
One thing you may notice about this edition of Clippings is the relatively light coverage of the H-P leak investigation. To briefly summarize, H-P (formerly Hewlett Packard, a name virtually synonymous with computing and Silicon Valley) has been fighting back the proverbial S storm of bad publicity after reporting has revealed that company executives authorized a rogue operation designed to identify the source of press leaks that occurred shortly before the company’s board fired former chief executive officer Carly Fiorina. The business press has been “shocked, shocked” that one of the most venerable names in American business, which also is one of the world’s largest technology companies, would authorize spying and possible “pretexting” in order to find identify the leaker.
(“Pretexting” essentially is pretending you’re someone else as a means of acquiring or getting access to data. It’s a technique used by hackers all the time.)
Of course, we have a theory about why this has become a significant story at all. The business press has made this a story because it involves the business press, and reporters can rant about how they’ve been wronged. As reporters have unearthed more details about the operation, they have discovered that in the process of getting this information, H-P essentially was investigating the press as much as it was investigating the leak. Reporters get very uppity when they are being investigated, instead of doing the investigating.
Here’s something obvious about leaks that few confess: for a leak to be effective, someone with private, often confidential information has to be willing to spill the beans, and a member of the press has to willingly and knowingly agree to divulge that information to the public. In other words, reporters are as integral to the leak as the person with knowledge of private, often confidential information.
Again, this seems obvious, but why is it we rarely hear about reporter and media outlet complicity in unearthing private information? Isn’t the act of making private information public as problematic (perhaps immoral) as divulging that information in the first place? Something that continues to amaze is is the halo of credibility and (dare we say) moral righteousness that follow San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada. Williams and Fainaru-Wada are the reporters that published leaked grand jury testimony in the Chronicle and in the book Game of Shadows. According to federal law, it is illegal for most people associated with the federal grand jury process to divulge the contents of grand jury testimony.
In other words, Congress has decided that grand jury testimony in a federal trial or investigation is supposed to remain secret. Now, we’re loathe to blindly follow our Congress, but this rule seems to be in place for a good reason. And it is a rule that has worked relatively well. If this is the case, then how is it that two reporters who published (and likely solicited disclosure of) secret federal grand jury testimony are hailed as great reporters — patriots, even — for unearthing a story that is the best interests of the American public? No, Williams and Fainaru-Wada were accessories to a federal crime and should go to jail.
The reporters in the H-P investigation seem to want to imbue themselves with the same halo of righteous credibility that has illuminated the acts and reputations of Williams, Fainara-Wada, former New York Times reporter Judith Miller, and a host of other reporters who break law or ethics in the name of trailblazing journalism. Again, there are two sides to a leak: the leaker, and the person who decides to leak. And inordinately, the person who decides to leak does so primarily — if not exclusively — because of self-interest, not because there is a story that is critically important to the country and its citizens.
The business press corps has made this H-P incident into a “big story” as much because H-P executives dared to investigate the press as it is because of what H-P did. We just wish the corps would stop whining. If you’re in the leak reportage game, what’s good for the goose should be good for the gander.
Quote of the Week
Tom Espiner. British Library Calls for Digital Copyright Action. News.com. Sept. 25, 2006. “Unless there is a serious updating of copyright law to recognize the changing technological environment, the law becomes an ass,” so says Lynne Brindley, CEO of the British Library. We couldn’t agree more, but the way the American copyright law currently is updated skews so much toward privatization that one could reasonably wonder whether no updates are better than the industry-sponsored updates.
Clippings
- Jon Healey. What’s Holding Up Movie Downloads. LATimes.com. Oct. 1, 2006. This is repeat of Rob Pegoraro’s column, which was our AoTW two weeks ago. Again, the L.A. Times shows it is unafraid to skewer Hollywood over its lazy business practices.
- Damon Darlin. H.P., Red-Faced but Still Selling. The New York Times. Oct. 1, 2006. See our commentary above.
- Siva Vaidhyanathan. Copyright Jungle. Columbia Journalism Review. September/October 2006. Vaidhyanathan writes about media coverage of the copyright wars, a theme K. Matthew Dames also covers in “Framing the Copyright Debate,” which is published in the September 2006 issue of Information Today.
- Victoria Shannon. U.S. Loosens Its Control Over Web Address Manager. The New York Times. Sept. 30, 2006. On the surface, it seems proper that the American government begin to cede control over the domain name system. Even though much of the development of the Internet has U.S. origins, the Internet is — and always should be — an international network that is beyond the actual or de facto control of a single nation. Perhaps the only thing worse than the Internet being controlled by American government, though, is for the Internet to be controlled by private corporations. According to a companion WashingtonPost.com story, corporate control over the domain name system is likely to succeed the end of the most recent renewal of the cooperative agreement between the Commerce Department and the Internet Corporation for Assigned Names and Numbers (ICANN).
- Saul Hansell. YouTube’s Video Poker. The New York Times. Sept. 30, 2006. You know you matter in media when you get the invite to Allen & Company’s annual Sun Valley retreat. YouTube’s Chad Hurley just got his first invite.
- Steve Friess. Pod People Ponder Litigation. Wired News. Sept. 29, 2006. Underneath all of Apple’s outward manifestations of cooperation and sharing lies a tremendously competitive (and one might add slightly paranoid) company. Apple sagely identified the move toward consumer-generated content, but unfortunately several of its business moves over the past year — remember the leak lawsuits — suggests it will engage in typically corporate behavior in order to preserve its competitive advantage. What an irony: the company that champions DIY media is also the company that seeks to control the direction in and pace at which the DIY media movement evolves.
- Kate Norton. Google in Tussle for Digital Rights. CIO Today. Sept. 28, 2006. It should be no surprise that news outlets are fighting Google tooth and nail over alleged unauthorized reproduction of its content. (Google also is fighting Agence France Presse over a similar issue.) While Google issued its own spin on content, what is interesting about this ruling is that it reminds us that not everyone is enamored of Google (especially, it seems, Europeans), and that copyright is not a strictly American concept.
- Ars Technica. Royalty Agreement Reached for U.K. Digital Music Downloads. Sept. 28, 2006. “Those who remember the shift from cassette tapes to CDs will recall that during that transition, packaging cost savings were not passed on to the artists (or indeed, to the consumer) either. The music industry has shown itself to be slow to change, but will the transition from CDs to digital downloads prove to be any different from previous shifts? So far, it is looking like more of the same.”
- The Patry Copyright Blog. Grokster Remand Opinion. Sept. 27, 2006. William Patry, expectedly, weighs in with insightful analysis about the appellate court’s fact-dependent decision. (.pdf) What’s special about Patry’s commentary, however, is his confirmation that inducement now is an official liability standard, and his opening comments that refer to the economics of copyright litigation.
- Marie Jackson. Virtual School “Beats Real Thing.” BBC News. Sept. 27, 2006. With advances in technology and a generation of increasingly technology literate students and instructors, virtual education will become standardized instead of an anomaly. What will be interesting is how the law follows, particularly amendments to legislation such as the TEACH Act. 43(b)log. Kozinski on Fair Use and Injunctions. Sept. 27, 2006. Rebecca Tushnet’s reportage of “Fair Use Revisited,” as speech by Ninth Circuit judge Alex Kozinski. American University’s Washington College of Law has a Webcast available for viewing.
- Bit Player. The Current Shifts Against StreamCast. Sept. 27, 2006. The federal case against StreamCast, the parent of file-sharing program Morpheus, applies (.pdf) the inducement standard the Supreme Court articulated in last year’s MGM v. Grokster decision. This is not news. What is noteworthy, however, is that this post comes from a Los Angeles Times-sponsored blog that chronicles “Hollywood’s love-hate relationship with technology.
- Ars Technica. Congress Looks at P2P in Academia. Sept. 27, 2006. With all due respect to Ars, which is a wonderful publication, this article really should be entitled “The RIAA Looks at P2P in Academia, And Congress Complies, Since Either It Doesn’t Know How to Challenge Big Music’s ‘Studies’ or Intentionally Avoids Doing So.” Perhaps more than anything, consumers, librarians, and educators need some person or entity with the skills to analyze Big Content’s methodology, and, preferably, put that methodology into context. (Fortunately, Ars itself took issue with Big Music’s latest piracy numbers.)
- Michael Hickins. IBM Pushes New Patent Policies. InternetNews.com. Sept. 27, 2006. At its core, this seems like an interesting way for the world’s most prolific patent filer improve the process. We see, however, at least one possible ulterior motive. This could be a way for IBM to control the pace of innovation.
- Eric Lach. Copyright Check: Students Required To Comply. The Wesleyan Argus. Sept. 26, 2006. This story proves that Big Music officially has gotten higher education to do its bidding on the copyright front. One would think that universities would figure out a way to stare down the content industry to come to an equitable truce.
- Jim Abrams. Congress Moves to Protect Trademarks. SeattlePI.com. September 25, 2006. Congress passes the Trademark Dilution Revision Act of 2006 (H.R. 683), which effectively overturns the Supreme Court’s 2003 ruling against Victoria’s Secret, which filed trade infringement and dilution claims against an Elizabethtown, Ky., adult novelty shop originally named Victor’s Secret.
- Cornell University. Cornell University and Publishers Announce New Copyright Guidelines Governing Use of Digital Course Materials. Sept. 19, 2006. We assiduously avoid reporting on press releases because they don’t constitute news, but this release from Cornell is important because we believe it signals Big Publishing’s attempt to circumvent both the Section 108 and Section 110 exceptions. The press release notes that the new guidelines “govern the use of electronic course materials on the library’s electronic course reserves system, on faculty and departmental web pages, and through the various ‘course management’ web sites used at Cornell” and “affirm that the use of such content is governed by the same legal principles that apply to printed materials.” Like the broadcasters’ attempt to ram Webcasting protections through the treaty process, we believe this an attempt to bypass federal copyright law thorough a private agreement between private actors. The American Association of Publishers has been clanging swords over e-reserves for at least a year, and now it gets a major Ivy League institution to sign off on this sort of agreement. And if the “guidelines” are consistent with copyright law, why are they necessary at all? This seems extraordinarily fishy.
- SiliconValley.com. Gonzales Calls for Law to Require ISPs to Preserve Customer Data. Sept. 19, 2006. We’ve discussed this before, but what’s notable about this story is the following quote from Attorney General Gonzalez: “We respect civil liberties, but we have to harmonize this so we can get more information,” he said in the story. It seems that even the country’s top legal officer has adopted copyright doublespeak.
- Ryan Blitstein. YouTube Inks Deal With Warner. MercuryNews.com. Sept. 19, 2006. This is the first of many deals you can expect YouTube to ink with media companies as it tries to avoid getting sued into oblivion. The question is how will YouTube preserve itself despite the deals?
- Ars Technica. From Vinyl to Silicon. Sept. 12, 2006. Ars publishes a great review of contemporary DJ software. Had we not gotten on our soapbox over the H-P issue, this likely would have been our AoTW.
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The Copyright Landscape: An Introduction to American Copyright Law
“As recently as 10 years ago, virtually no one was interested in copyright. Some lawyers (like David Nimmer and William Patry) devoted significant time to it, and media and entertainment companies took comfort in the security copyright provided. But neither the average Joe Citizen nor the average information professional paid much attention to copyright. It was, after all, a backwater part of the law that most folks thought concerned only legal specialists and bookish policy wonks.
“Then, all of a sudden, copyright became ‘hot.’ The Web’s development as a commercial and distribution platform sparked the flame and when entertainment and culture moved from analog to digital in the mid-nineties, copyright became – as they say in Hollywood – a player. Now, nearly a decade after massive technological, societal and commercial shifts in the way content is created, archived, distributed and protected, Big C is its own newsmaker. But despite this, surprisingly few people know anything about the Copyright Act of 1976.
“This article is designed to begin remedying this problem. It is an introduction to America’s federal copyright law, including a comparison of copyright and other forms of intellectual property, an overview of the Copyright Act of 1976, and an organizational methodology that should help the uninitiated become more comfortable with the code.
An Online exclusive.
K. Matthew Dames. “The Copyright Landscape: An Introduction to American Copyright Law.” Online. September 2006. p. 35
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Beyond Google: Orphan Works & Section 108 Reform
“Raise your hand if you know that Google is being sued over its Google Book Search project.
“Of course, you know about this – everyone knows about this. Google’s announced in December 2004 that it would partner with several of the world’s preeminent research libraries to make digital copies of their collections and allow the text of those digital copies to be searched online. That announcement was so influential that it instantly provided legitimacy to digitization programs the world over in a way that thousands of information professionals could not.
“The announcement also ruffled the feathers of select groups of publishers and authors. Some of them ended up suing Google for copyright infringement in a New York federal court. These cases are pending.
“The Google Book Search (“GBS”) litigation has captured the fancy of information professionals nationwide. And as far as legal developments go in the information profession, the GBS litigation – with its high-profile, “Do No Evil” defendant fighting the comparatively less well-regarded publishing industry, and theories of fair use dancing around lawyers’ heads – is the sexiest legal issue out there right now.
“There are, however, two other issues that greatly affect information professionals as equally as the GBS litigation. Both of these issues – orphan works and Section 108 – have been under review and consideration from various groups for most of the last calendar year. Both issues likely will come to some resolution later this year. And like the GBS litigation, both issues will have a profound influence over the way information professionals use, copy, and access information long after this year’s initial determinations are settled into law or policy.”
A Searcher exclusive.
K. Matthew Dames. “Beyond Google: The Importance of Orphan Works and Section 108 Reform to Information Professionals.” Searcher. September 2006. p. 21.
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Beyond Google: Orphan Works & Section 108 Reform
“Raise your hand if you know that Google is being sued over its Google Book Search project.
“Of course, you know about this – everyone knows about this. Google’s announced in December 2004 that it would partner with several of the world’s preeminent research libraries to make digital copies of their collections and allow the text of those digital copies to be searched online. That announcement was so influential that it instantly provided legitimacy to digitization programs the world over in a way that thousands of information professionals could not.
“The announcement also ruffled the feathers of select groups of publishers and authors. Some of them ended up suing Google for copyright infringement in a New York federal court. These cases are pending.
“The Google Book Search (“GBS”) litigation has captured the fancy of information professionals nationwide. And as far as legal developments go in the information profession, the GBS litigation – with its high-profile, “Do No Evil” defendant fighting the comparatively less well-regarded publishing industry, and theories of fair use dancing around lawyers’ heads – is the sexiest legal issue out there right now.
“There are, however, two other issues that greatly affect information professionals as equally as the GBS litigation. Both of these issues – orphan works and Section 108 – have been under review and consideration from various groups for most of the last calendar year. Both issues likely will come to some resolution later this year. And like the GBS litigation, both issues will have a profound influence over the way information professionals use, copy, and access information long after this year’s initial determinations are settled into law or policy.”
A Searcher exclusive.
K. Matthew Dames. “Beyond Google: The Importance of Orphan Works and Section 108 Reform to Information Professionals.” Searcher. September 2006. p. 21.
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Framing the Copyright Debate
“In June, The Wall Street Journal published an e-mail debate between Fritz Attaway and Wendy Seltzer about digital rights management (“DRM”). Attaway is a senior executive with the Motion Picture Association of America, while Seltzer is a fellow at Harvard Law School’s Berkman Center for Internet & Society. I found the article interesting, not only because DRM squarely hits the intersection of business, law and technology, but also because it is a perfect example of how copyright debates get framed.
“As copyright increasingly has become a part of our daily discourse, an interesting, yet subtle phenomenon has occurred: discussion about copyright inordinately emphasizes owners’ rights over consumers’ uses. This phenomenon is important because it represents exactly the opposite principles that are codified in the Copyright Act of 1976 (also known as the “Act”). At a fundamental level, the Act gives creators six exclusive rights, all of which are codified in Section 106. (Visual artists get other rights codified in Section 106A.)
“On the other hand, the Act lists more than one dozen exceptions – listed in Sections 107 through 122 – that limit or sharply qualify those six rights. Said another way, copyright exceptions outnumber copyright rights by a ratio of two to one. Yet one would never know this from reading or listening to even the most widely respected news outlets because copyright discourse is alarmingly one-sided. ”
“Using the Journal debate as an example, this article looks at how our copyright news is delivered, how that message has been slanted in favor of content owners, and the importance of learning how to parse through the barrage of messages that, together, lead us to think more about rights than uses or exceptions.”
An Information Today exclusive.
K. Matthew Dames. “Framing the Copyright Debate.” Information Today. September 2006. p. 45.
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CopyCense Clippings v. 0.6
CopyCense Clppings: Week of September 11, 2006
After a bit of a hiatus, we’re back in the saddle with a classic Quote of the Week, and several interesting items and papers.
Article of the Week
Center for Democracy & Technology. Evaluating DRM: Building A Marketplace for the Convergent World (Version 1.0). (.pdf) September 2006. Perhaps the best outcome from last fall’s Sony BMG rootkit scandal is that consumers — finally — began to take DRM security threats (not to mention impaired economic value) seriously. While this paper from CDT continues to use Big Content’s frame — the mere mention of “digital rights management” suggests that content companies have an innate right to stealthily load virus-inducing software onto your computer in order to protect its revenue stream — it is a good start toward simplifying what can be a complex conversation. We’d like to see the DRM debate simplified even further, through questions such as: “If we pay full price for it, why are we getting less than full access?”
Quote of the Week
Couterfeit Chic. The President’s War on Copying. Sept. 8, 2006. This week’s QoTW is a classic — worth two paragraphs of commentary — and almost as ridiculous as former MPAA president Jack Valenti analogizing the competitive challenge of file sharing as his industry’s “terrorist war.” This year, it has become apparent that the fashion industry — not wanting to be left out of the copyright contretemps — is mobilizing itself in an what may become a full-fledged legislative attempt to gain copyright protection for designs. (See our Fashion & Ornaments archive for background on this issue.)
So, it is within this context that Council of Fashion Designers of America’s new president, Diane von Furstenberg, said the following last week to The Wall Street Journal when asked why the fashion industry was seeking copyright protection: “At first, my attitude was, ‘Oh well, my clothes are copied everywhere. There’s nothing you can do.’ And then I started to see how they pull it from fashion shows and copy it. You can see it on eBay. I started to say you have got to have some rules. … Laws are created to intimidate people [with the threat of litigation], to tell them no, you don’t do that. The more I talked about it, the more I realized this is good for everybody.” We always appreciate when public figures with absolutely NO understanding of copyright issue utterly asinine statements like this one. Valenti’s comment was in poor taste; von Furstenberg’s is worth a hearty chuckle. Bravo, Diane, bravo.
Clippings
- BusinessWeek Online. YouTube: Waiting For The Payoff. Sept. 18, 2006. It’s interesting to see how the press continues to report on businesses that usher in or popularize new business models. After the hue and cry comes the inevitable dismissal “it has yet to make any money.” The point many reporters seem to miss is that companies that are doing new things in new ways don’t always fit neatly into preconceived notions of success, such as profitability. (After all, this country still has accounting and tax systems that still are geared toward a manufacturing, physical asset economy, rather than the intangible, intellectual property economy that reflects today’s reality.) For a slightly broader view, consider Bambi Francisco’s recent article about the price escalation for video-sharing sites, and another article about how YouTube has helped create a market for Internet soap operas. YouTube may or may not turn out to be a “real company” with “real profits,” but it is undeniable that it reflects the derivative work-based “clip culture” and sharing ethos that is central to the future of creating and distributing content.
- Wired News. Amazon’s Online Video Gambit. Sept. 8, 2006. Amazon beats Apple to the video download game, and joins the party. Oh, but we (and Congress, and the federal courts) were told dowloading = piracy. I guess that equation applies only until you figure out a way to make money from downloading.
- Sarah Lacey. Facebook Learns from Its Fumble. BusinessWeek Online. Sept. 8, 2006. Privacy matters after all … even to the youngsters.
- Timothy J. Mullaney. Real Estate Ads Move to the Internet. BusinessWeek Online. Sept. 8, 2006. America’s real estate industry has yet to be crushed by Web-based technologies. Sure, Craigslist has created a new way to list rentals (as have mashups like ), but that has hurt newspaper classified profits more than the real estate industry, which deals more with single-family homes and commercial buildings. The industry’s crown jewel — the Multistate Listing Service (MLS) — largely has gone untouched. It is about to be touched in a rather rude way.
- Bruce Schneier. Quickest Patch Ever. Wired News. Sept. 7, 2006. The opening line says it all: “If you really want to see Microsoft scramble to patch a hole in its software, don’t look to vulnerabilities that impact countless Internet Explorer users or give intruders control of thousands of Windows machines. Just crack Redmond’s DRM.”
- Erica Ogg. Credit Card Companies Form Security Council. News.com. Sept 7, 2006. We’re not sure about you, but we really don’t want the credit card industry having anything to do with security, especially when it likely will involve sharing information. Aren’t these the same folks that (a) have their websites hacked, or (b) get slippery-fingered with financial data? Chris Sherman. Google Debuts 200 Year News Archive Search. Search Engine Watch. Sept. 6, 2006. First the Web reduced newspaper readership, then it crushed lucrative classifieds revenue. But if newspapers are savvy, they can make money from these sorts of deals.
- AppleInsider. Apple Cell Phone Is Real and Ready for Production — Analyst. Sept. 5, 2006. We never quite figured out what Apple was thinking when it tried to quiet select Web sites from publishing rumors and speculation about future products and innovations. That rumor mill is the best viral marketing Apple has. As for the prospects of a so-called iPhone coming to market, when the buzz gets this loud, the rumor likely is true.
- Eric Steuer. The Infinite Album. Wired. September 2006. This is one of the more interesting articles in Wired‘s “Music Reborn” issue. Just go to the newsstand and buy a print copy. It’s that good.
- Antone Gonsalves. MySpace To Let Musicians Sell Tunes Directly To Members. InformationWeek. Sept. 5, 2006. Distribution control represents Big Music’s final death grip over the industry. It will take a lot more than this deal to shake things up seriously, but the erosion already has begun. And in irony of ironies, Shawn Fanning’s new company, Snocap, is providing the technology behind MySpace’s service.
- BBC News. SanDisk Faces MP3 License Dispute. Sept. 4, 2005. Has anyone noticed the frequency with which allegedly open source or open standard technologies are the subject of legal wrangling between private parties? In the past year, we’ve already seen disputes over JPEG propriety and the new version of the GPL. Perhaps these technologies, too, are swirling down into the intellectual property litigation stew.
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