Most observers predicted that no copyright legislation would pass during calendar 2003—neither moves to unbalance copyright further in the direction of Big Media nor attempts to redress some of the grievances. The observers were right, but there turns out to be a loophole. The Federal Communications Commission, a group that says “How high?” when Big Media says “Jump!,” has adopted the Broadcast Flag (at least on a preliminary basis). Unless Congress overrules that act or the courts find that the FCC has exceeded its mandate, the Broadcast Flag is potentially as damaging as most proposed copyright legislation. That topic’s big enough for a separate essay in a future issue.
Meanwhile, a few updates.
The Librarian of Congress issued this cycle’s set of exemptions from DMCA’s prohibition against circumvention of technological measures that control access to copyrighted works on October 28, 2003. Four narrow exemptions will be in effect through October 27, 2006:
Ø “Compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications…not including lists…that operate exclusively to protect against damage to a computer or computer network…or to prevent receipt of email.” Think of this as the “Seth Finkelstein exemption,” since his work was largely responsible for its inclusion. Unfortunately, it’s unlikely that Finkelstein will use the exemption. He’s concluded (appropriately, I believe) that the meager rewards aren’t worth the other legal risks.
Ø “Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.” This and the next are, to some extent, archival exemptions—exemptions designed to make it plausible to archive obsolete software.
Ø “Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access…” The second archival exemption.
Ø “Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent enabling of the ebook’s read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format.”
That last clause is the only one that broadens access to contemporary material. If all ebook versions of a work have draconian usage restrictions, preventing access by visually impaired readers, then DMCA does not prevent circumvention of those restrictions.
A few reactions to the exemptions:
Ø An October 28, 2003 press release from ARL, AALL, ALA, and the Medical Library Association notes, “Libraries expressed disappointment that the law will continue to disallow legitimate and customary uses of digital materials by libraries and schools”—but praised the Librarian for adding the ebook exemption and retaining the censorware exemption. The release notes that the archival exemption is actually narrower than a previous version, since it excludes digital literary works that are not programs.
Ø Katie Dean wrote a brief story on October 29, 2003 at Wired News: “New ways to skirt DMCA…legally!” Dean quotes Seth Finkelstein, “How sweet it is!” and David Burt’s disappointment: “I thought we had made it clear that the exemption is unnecessary to conduct meaningful evaluations of filters.” An EFF attorney was disappointed that the group’s proposals were not granted. Those proposals would have allowed consumers to defeat copy protection on “CDs” that don’t play on some devices, circumvent region coding on DVDs so U.S. consumers could play imported DVDs, and circumvent CSS protection on DVDs to skip advertising and to play public-domain motion pictures.
Ø An October 30 article by Roy Mark (from dc.internet.com) quotes Rick Boucher saying that the narrowness of exemptions was a “misguided decision”: “Consumers will continue to be subject to the whims of copyright owners seeking to deny them the right to use lawfully purchased digital works for a variety of fair use purposes… For example, the Copyright Office ignored the opportunity to exempt from the DMCA the ability to bypass copy protections so that consumers can play or display media on a variety of home devices.” Boucher pushed for HR 107, his fair use proposal, which exempts circumvention for the purpose of fair use and permits distribution of hardware and software with substantial non-infringing uses.
October 6, 2003: John A. Halderman (Princeton University) publishes a technical report, “Analysis of the MediaMax CD3 copy-prevention system” (Princeton University Computer Science Technical Report TR-679-03, available at www.cs.princeton.edu/ ~jhalderm/cd3/). He concludes, “MediaMax and similar copy-prevention systems are irreparably flawed but [I] predict that record companies will find success with more customer-friendly alternatives for reducing infringement.”
MediaMax CD3 is the SunnComm Technologies “copy-prevention” technique used on a BMG pseudo-CD by Anthony Hamilton. The technique puts two versions of the music on the disc: A set of audio tracks that “are supposed to be difficult for computers to copy” and a set of encrypted Windows Media compressed tracks that employ digital rights management to restrict uses.
The “CD” does specify that it includes copy-prevention mechanisms—but, although the Compact Disc Digital Audio logo doesn’t appear on the jacket or the disc, it’s embossed on the inside of the jewel case. That’s hardly surprising: even the empty jewel boxes you buy have some variant of that label.
The back cover includes extensive text on how to play the music on a computer—text that looks a lot like typical software CD instructions for what to do if autorun (autostart on the Mac) doesn’t work. Specifically, it says to click on “Launchcd.exe” for Windows, “Start” for Mac. (System requirements follow. I wonder how many Mac users have Windows Media Player for Mac OS X…)
Anyone who knows their PC at all well will, at this point, suspect that the “copy prevention” relies on autorun. A lot of us turned off autorun years ago to avoid problems with self-starting CD-ROMs. What would happen if we put the “protected” CD in our computers and treated it like a music disc?
SunnComm’s press release says this:
CD copy protection robustness tests were performed to determine the security level of the product against unauthorized copying of the digital content. This was completed using a large set of Microsoft Windows and Apple Macintosh computer systems in tandem with many of the known ripper programs available on the market today. The PMTC [Professional Media Test Center] determined that none of the ripper programs used in the testing process was able to produce a usable unauthorized copy of the protected CD yielding a verifiable and commendable level of security for the SunnComm product.
So if I have autorun off, insert the disc, and click on MusicMatch, it won’t recognize the disc as an audio disc and let me rip it to MP3? I’m not about to spend $19 to verify that, but Halderman was. After all, the press release claims MediaMax “provide[s] playability on any consumer’s playback system without exceptions or limitations.” As Halderman notes, “Such perfect compatibility can only be achieved by leaving the standard CD audio portion of the disc unprotected.” That appears to be the case. No autorun? If you somehow miss the instructions on the label, and treat the “protected” disc as though it’s an ordinary audio disc—well, apparently, MusicMatch and competitors will treat it as though it’s an ordinary audio disc.
If autorun is enabled or if you click on Launchcd, you’re adding a device driver to your system that enforces the copy protection—as long as the device driver is running. Here’s Halderman’s response to the quoted paragraph above:
I assert that these claims are patently deceptive. In practice, many users who try to copy the disc will succeed without even noticing that it’s protected, and all others can bypass the protections with as little as a single keystroke.
And if you’re too shiftless to find the key, you may be one of millions who already disabled autorun: you’ll never notice the pseudo-CD is “protected.”
Halderman calls the weakness in SunnComm’s system “as embarrassing as the discovery in 2002 that Sony’s key2audio scheme can be defeated using only a felt-tipped pen.” Not really: Sony’s scheme requires positive action to defeat.
There’s more to Halderman’s 10-page paper, including sensible conclusions. I certainly go along with his conclusion that the way to get people to buy CDs is to increase value, just as DVDs increase value: Make the music better, add interesting bonus features, sell the discs at a rational price.
The fun just began with the paper. In early October, Hiawatha Bray reported on SunnComm’s response to Halderman (in the Boston Globe, as cited in Ed Felten’s Freedom to Tinker):
“There’s nothing in his report that’s surprising,” said SunnComm president Bill Whitmore. “There’s nothing in the report that I’m concerned about.” Whitmore said his company’s system is simply supposed to give honest music lovers a legal way to make copies for personal use, not to stop large-scale piracy.
Honest music lovers can make legal copies for personal use from any legitimate Compact Disc Audio Disc—without added software. As Felten notes, “This is hard to square with SunnComm’s previous assertion that the technology offers ‘an incredible level of security,’ that it ‘met the toughest standards,’ and that it passed tests in which the ‘security level offered by the MediaMax technology was pushed to the limit.’” In the case of “incredible,” I believe SunnComm is on solid semantic grounds: That is, its claim of security is “too extraordinary and improbable to be believed” (Webster’s Ninth New Collegiate Dictionary)
Whitmore’s lack of concern didn’t last long. Reuters reported on October 9 that SunnComm said it would sue Halderman. “SunnComm believes that by making erroneous assumptions in putting together his critical review of the MediaMax CD-3 technology, Halderman came to false conclusions concerning the robustness and efficacy of SunnComm’s MediaMax technology.” SunnComm also said it had lost more than $10 million in market value since the report appeared—and, of course, alleged that disclosing the existence of the software driver installed by MediaMax constituted a violation of criminal provisions of DMCA. When the Reuters report appeared, Halderman said SunnComm hadn’t contacted him yet: “I’m still not very worried about litigation under the DMCA; I don’t think there’s any case. I don’t think telling people to press the Shift key is a violation of the DMCA.” The report also notes that Halderman’s graduate adviser at Princeton is Ed Felten—who was threatened with DMCA action by the RIAA when he and colleagues planned to publish a paper on flaws in an earlier music security initiative.
The Reuters report appeared October 9. October 10, the Daily Princetonian reported SunnComm’s president and CEO (Peter Jacobs—not Bill Whitmore?) “said he had changed his mind” by the end of that same day.
Jacobs said in an interview late last night that a successful lawsuit would do little to reverse the damage done by the paper Halderman published Monday about his research, and any suit would likely hurt the research community by making computer scientists think twice about researching copy-protection technology.
“I don’t want to be the guy that creates any kind of chilling effect on research,” Jacobs said.
This turn of events made Jacobs out as a good guy, as Felten noted. Not that Jacobs was entirely withdrawing SunnComm’s claim that Halderman didn’t really understand MediaMax (or “their intent” in designing it?): “Maybe [Halderman] can learn a little bit more about our technology so as not to call it brain dead.”
When Felten commended SunnComm for its decision (in Freedom to Tinker, also October 10), there were some interesting comments. One person noted that they wouldn’t commend SunnComm “for not doing something incredibly stupid.” Another suggested that Halderman might have a case to sue SunnComm for libel and defamation—and a third was disappointed that SunnComm didn’t sue, because such a suit would bring out the absurdity of DMCA’s circumvention clauses. (It’s so easy to encourage other people to stand up to lawsuits!)
Robert A. Heverly (Norwich Law School, University of East Anglia) posted another perspective on another blog (Displacement of Concepts), questioning the number of commentators who seemed to think that SunnComm had a plausible (if stupid) DMCA case. Here’s the wording of Section 1201a: “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” [Emphasis added.] Heverly noted that many computer users switch autorun off as a matter of course—and would thus find the CD to be unprotected without doing anything. “If this is the case, does anyone really think that SunnComm could have argued that it was effective?”
This story wasn’t quite done yet, though. Hiawatha Bray ran a followup on October 13, “Missing the point on antipiracy technology.” This column suggested that MediaMax could indeed be considered “effective,” because most users wouldn’t bother to bypass it. His example? Apple’s iTunes, which uses FairPlay digital “rights management.” FairPlay doesn’t allow unlimited copying, but it does allow burning music CDs, expanding the compressed AAC data to standard audio CD format in the process. The resulting disc can be ripped to MP3, since it’s just an audio CD. “Apple says that doing so results in lousy sound quality, but we’ve tried it, and the results sound just fine—certainly good enough for casual listening.” So, in Bray’s mind, FairPlay is just as flawed as MediaMax, “yet nobody’s calling iTunes ‘irreparably flawed.’” Both systems “are based on the assumption that most music listeners are honest.”
I see two fundamental flaws in that logic. First, it assumes that iTunes-purchased tunes have not shown up on P2P systems in reripped MP3 form, an assumption that’s nearly impossible to test. Second, and more important, if the technology is based on assuming that listeners are honest, then no technology is needed. Put a statement on the CD: “Sharing this music over the Internet is illegal.” What more do you need? (Bray, incidentally, identifies Whitmore as president, Jacobs as CEO.)
A day later, Jacobs labeled Halderman’s paper “political activism masquerading as research.” I was unable to find any political argument in Halderman’s paper, but Ed Felten’s interpretation is that Jacobs is arguing that the paper might affect the public policy debate about DRM. “What I don’t understand is why that’s a bad thing. It seems to me that an accurate, truthful research report has more merit, rather than less, if its results are relevant to a public policy debate. To put it another way, Halderman stands accused of relevance, which can be a dangerous tactic for an academic to follow.”
The last act in this particular carnival, so far, appeared October 16 on The Register, a source I would normally avoid. Jacobs was unhappy with coverage of the incident, stated “Mr. Halderman discovered nothing except how to draw the press to him like a magnet,” and cited the 10/13 Boston Globe article “which you [The Register] might consider using as a roadmap to help navigate the bandwagon you jumped on.” More specifically, Jacobs objected to The Register using the term “widespread ridicule” to describe how “hundreds of stories had lambasted his company’s DRM technology.” So The Register quoted a paragraph directly from Hiawatha Bray’s column (which it calls, accurately I believe, “a bit of Apples to squirrels comparison of DRM technologies”). Here’s the paragraph:
SunnComm became an Internet laughingstock, and the enraged CEO, Peter Jacobs, threatened to sue Halderman for spreading false information about MediaMax. He even suggested the possibility of prosecuting Halderman under the Digital Millennium Copyright Act, an absurd statute that forbids attempts to bypass antipiracy systems. [Emphasis added.]
I recognize that Jacobs’ idea of a “roadmap” was the “keeping honest people honest” concept—but it’s hard to argue with the headline placed on this discussion: “SunnComm CEO demands to be called a ‘laughingstock.”
Ed Felten had an interesting and unusual comment on the new spate of RIAA lawsuits. There’s some evidence that the lawsuits are deterring many people from redistributing music online. “And if the suits are working, that’s good news.” It’s good news because the music business is in a real mess—and there are basically three possibilities (other than “infringement becomes impossible,” which Felten believes and I hope is implausible): Voluntary compliance, Alternative compensation, or Permanent non-compliance. “Alternative compensation” is some scheme such as compulsory licensing; he considers that risky at best. Permanent non-compliance is bad for everybody, he believes (and I agree, although a few “P2P revolution” crazies think it’s the inevitable future and a good thing). “Voluntary compliance is the best of these, if we can figure out how to achieve it at reasonable cost.” He thinks “the very real costs and bad feelings that the suits have imposed so far seem a worthwhile price to pay, if they actually make Voluntary Compliance more likely.”
I hadn’t planned to discuss SCO’s legal maneuverings against Linux—but with the stuff happening in December 2003, I can’t resist. I’ve already commented on IP-shell companies, ones that make all or most of their money from copyrights and patents covering things they didn’t develop—but SCO’s latest arguments would, among other things, appear to invalidate Creative Commons licenses and most other ways to reduce copyright imbalance. I may think the arguments are ridiculous, but they’re worth mentioning.
SCO purchased the rights to Unix Sys V. SCO, formerly a Linux distributor, then claimed that Linux contained proprietary code from Unix Sys V and that anyone using Linux owed SCO licensing fees for Unix. SCO sued IBM for contributing material covered by non-disclosure licenses to the Linux kernel. That case is proceeding.
A November 24 report at www.atnewyork.com notes that the Open Source Development Lab has issued three position papers on the “SCO-Linux war.” One paper, written by Eben Moglen of the Free Software Foundation, says SCO’s arguments contain an inherent conradiction. SCO claims publicly that it can show infringement of its copyrights. But, according to Moglen, when it has shown such code examples, “its demonstration backfired.” One piece of code used the Berkeley Packet Filter firewall—but that code was part of BSD UNIX, copied into Sys V Unix. The next segment turned out to be code that originally appeared in Donald Knuth’s The Art of Computer Programming in 1968 and was also in the public domain.
The bigger argument is that SCO has distributed Linux under GPL—and GPL explicitly includes permission to copy, modify, and redistribute. Any “trade secrets” included in SCO’s distribution of Linux are automatically non-secret. Notably, GPL includes a clause that, if you violate the license, you lose the right to distribute work; thus, SCO’s attempts to require new licenses can invalidate SCO’s own distribution license—and make it an infringer.
On December 4, 2003, Darl McBride, CEO of SCO, posted an “Open letter on copyrights” on SCO’s website (www.sco.com/copyright.). This letter is truly remarkable. Here’s the key paragraph:
SCO asserts that the GPL, under which Linux is distributed, violates the United States Constitution and the U.S. copyright and patent laws. Constitutional authority to enact patent and copyright laws was granted to Congress by the Founding Fathers…
McBride goes on to say that the Congress extended copyright protection to software in 1976 because of recognition that the U.S. was “rapidly lagging behind Japan and other countries in technology innovation”—and that the DMCA was enacted “in recognition of the risk to the American economy that digital technology could easily be pirated…” (Some cheerleading for DMCA follows.)
Then, McBride introduces the villains: “There is a group of software developers in the United States, and other parts of the world, that do not believe in the approach to copyright protection mandated by Congress. In the past 20 years, the Free Software Foundation and others in the Open Source software movement have set out to actively and intentionally undermine the U.S. and European systems of copyrights and patents.”
McBride goes on, emphasizing the “left” in copyleft and calling it a “stance against intellectual property laws.” He claims that SCO is under siege from the forces of copyleft. “Personal threats abound. At times the nature of these attacks is breathtaking.” And he says the issue is clear: “Do you support copyrights and ownership of intellectual property… or do you support ‘free’—as in free from ownership—intellectual property envisioned by the Free Software Foundation, Red Hat and others? There really is no middle ground. The future of the global economy hangs in the balance.” [Emphasis added.]
McBride goes on to try to connect Eldred v Ashcroft and Open Source. He also claims “to promote the Progress of Science and the useful arts…” inherently includes a profit motive, and that protection for this profit motive includes a Constitutional dimension. I don’t remember anything in Eldred v Ashcroft that said profit, in and of itself, justified longer copyright protection, and I surely don’t see the phrase “to promote increased profit” in the Constitution, but I’m not as clever a reader as McBride.
In essence, McBride is claiming that it is unconstitutional to give away software! By implication, any license willingly entered into that restricts the full force and application of copyright (lifetime plus 70 years, for now) must be unconstitutional: The U.S. Constitution is all about profit, and such acts might limit profit. Based on this argument, I’m a traitor. Cites & Insights is protected by copyright—but I give it away, and the Creative Commons license says you can use it at will. Kust to make it clear that I’m dangerous to the American system, you can’t sell my work without contacting me. How unconstitutional is that? You can have it free but not profit from it!
Larry Lessig commented on McBride’s document in his weblog. He notes that GPL specifically trades on a property right based in copyright—that the owner of the right has the right to do with his property whatever he wishes. “If he chooses to give his property away, that does not make it any less a property right… And if he chooses to license it on the condition that the source code be made free, that doesn’t make it any less a property right.” He also notes that, despite McBride’s implications, Red Hat argues that software patents are a bad idea, not that software copyright should be abolished.
Lessig says the issue is clear, but it’s not the issue SCO states: “Do you support the property rights that Congress gives the creators of software—the right to decide to (1) sell your software, (2) license your software, or (3) give your software away. If you really do support that right, then you should support the particular choices property rights owners make with that right.” Users of GPL choose option (2): They license their software—just like Microsoft. The terms may be different, but the basis is the same.
Lessig goes on to discuss the claim that copyright “inherently includes a profit motive.”
This is the most interesting (and silly) claim made in the whole of McBride’s piece. There is absolutely no authority in any Supreme Court case anywhere to say that a copyright owner must sell his copyrighted material… Does Bill Gates violate the constitution when, instead of devoting $20b of his own money to making more “profit,” he decides instead to use the money to save millions of lives in Africa?
GPL software is not public domain software. Linux is licensed, and when you agree to use Linux—whether you download it for free or buy a CD-ROM distro—you’re agreeing to follow the license terms. That’s how copyright works. Unless, of course, you’re McBride and believe that failing to take advantage of the profit motive is unconstitutional.
Who ever thought of IBM or HP as naïve left-wingers? But both companies develop and release GPL’ed software “because of the profit motive… they believe it will make them more money.” Lessig, who should by now have a fair grasp of copyright law, answers the question of whether there is any legal authority anywhere “for the claim that the only constitutional way a copyright might be granted is if it is granted to people who choose to sell or license for money the work they have created.” There is no such authority. “It is, like most of the SCO suit, simply made up.” Lessig concludes:
This is nothing more than a failed company using a failed legal system to make money rather than producing great software. Don’t tell me this is what the Framers had in mind when they drafted the Progress Clause of our Constitution.
Groklaw (www.groklaw.net), Pamela Jones’ weblog, included a lengthy commentary on “Darl’s ‘greed is good’ manifesto” the same day (December 4), which acquired an incredible 243 comments by the time I printed it out on December 5—40 pages of single-space printout, even with responses to first-level comments suppressed. The main commentary is four tight pages, much more informal than Lessig and going into other areas. I won’t attempt to summarize; you may find the responses as interesting as the original. Or maybe you won’t. As I skimmed them, I saw slashdotting at work—a mix of relevant, thoughtful comments frequently overwhelmed by irrelevant nonsense and flaming.
A few days later, a Utah judge heard motions by IBM in the SCO-IBM suit, granting two of them, compelling SCO to provide useful details about the alleged intellectual property violations. To that point, IBM (being sued for more than $1 billion—SCO thinks big!) had received interesting disclosures: 46 CDs with more than 900,000 pages of source code, and “hundreds of thousands of pages of paper” with source code. Now, IBM wants to see specific details of claimed violations.
This will continue. I have enough faith in the legal system to believe that SCO can’t win—and that McBride’s open letter is absurd. (As one commentator noted, if he believes copyright and the profit motive are so closely coupled, what was he doing posting a letter that could be freely downloaded?)
An October 19 Reuters story (downloaded from Wired News) illustrates another odd aspect of copyright, and particularly the privileged protections provided for music. The title: “TV on DVD: What’s the difference?” “Television shows may look the same—or even better—when they appear on DVD. But sometimes, they don’t sound the same.”
Huh? “Studios frequently have to replace the music heard during the original broadcast for the DVD release, largely because of the prohibitive costs associated with licensing the music, studio executives say.” So, for example the second season DVDs for Dawson’s Creek will have new music replacing the original pop tunes, the first season set for Felicity contained new music, and Miami Vice isn’t likely to make it to DVD because it would be too hard to get clearances for all of the music.
Some studios may be crying poor. Universal and Disney offer the preceding examples—but a Warner executive says Smallville will have the original music, and he can’t think of any instances of Warner substituting music. On the other hand, the studio is holding off on DVD versions of two series because the music clearances would cost so much.
Would studios substitute music without letting the buyers know? Would good old Disney be a poster child for odd practices? You got it: In the first season set of Felicity, Disney kept the original music for the first and last episodes, replaced everything in between, and kept it quiet. After hearing from fans, there’s a note on the back of the second-season set.
I’m guessing that most of the unknown bands featured on the only series we’re buying on DVD, Buffy the Vampire Slayer, are delighted to have more people hear their stuff. And, removed as we are from the target demographic, I’m not sure we’d care that much if the tunes were replaced—at least until Season Six and the all-singing episode, which was composed for the series.
ALAWON (the ALA Washington Office Newsletter) 12:98, November 19, 2003, featured a “new statement on fair use and electronic reserves.” It’s a brief, clear commentary on fair use and how it relates to electronic reserve systems, focusing on Section 107 of copyright law, the explicit statement of fair use.
The summary notes the four factors in fair use (character of the use, nature of the work to be used, amount used, and effect of the use on the market for or value of the work) and points out how e-reserves play into each factor. It’s well worth reading for any librarian involved with e-reserves. The statement notes, “the law builds in tolerance for risk-taking” and libraries acting in good faith are unlikely to face statutory damages even if a court finds that they were wrong. The last sentence: “This demonstrates Congressional acknowledgment of the importance of fair use and the importance of our using it!” Recommended. (You won’t be surprised that quotation marks do not ever appear around fair use.)
A cute piece appeared on December 15 at BBspot (bbspot.com): “God considers smiting Bible pirates,” by Kristian Werner. I’ll quote just the beginning and end of a two page feature (which also has God’s take on whether the Bible has passed into the public domain: “Look, most copyright laws are based on something like the author’s lifetime plus, let’s say, 15 years. News flash: I’m still here”):
Vatican City – God did not rule out smiting as a final measure against those who share his most famous work, the Bible, on the Internet. This marks the first time a deity has spoken on IT-related questions since Steve Jobs was temporarily Enlightened when touching the One True iMac some years ago.
[and, seven paragraphs later…]
When asked what His next step might be, God was reluctant to discuss specifics. He sressed that He would consider the effect of His actions on the meek. “Let’s make one thing clear,” He said, “I may be omnipotent, but I’m not crazy. It’s not like I think I’m Jack Valenti.”
Slater, Eric S., “Copyright issues & principles in the digital environment,” Against the Grain 15:5 (November 2003): 18-22.
Slater is copyright manager for the American Chemical Society’s publications division. This brief overview is fairly clearly a publisher’s perspective. I find a number of the comments questionable—not the law, but the opinions stated. For example:
Publishers are in business to generate revenues, be it commercial or not-for-profit, so the idea they will give users free access is unlikely.
Isn’t it plausible that some professional societies use publications as a way to move the profession forward, with prices just high enough to make publications feasible? To the extent that a publisher is a division of a professional society with professional ethics, isn’t the first clause of that statement both unfortunate and sometimes untrue? For that matter, traditionally, many publishers have been in business because the founders and owners believed in what they were publishing; revenue generation was and continues to be a secondary motive. I know it’s unfashionable in today’s “all business, all the time” environment to suggest that business can have anything but money as its primary motivation—but it’s still true for many businesses. (I guarantee that most small wineries and, for that matter, most small publishers would vanish if their proprietors had revenue as a primary motive.)
Slater asserts in the next item that print subscribers have “an inherent knowledge” that permission is required to reuse material, but that “this principle seems to vanish when it comes to electronic site licenses or subscriptions.” The first statement is flatly false, since fair use (which does indeed “seem to vanish” with digital licensing) allows a range of reuses without permission, particularly within the classroom.
Soon we get one of those assertions that drive me crazy as a published writer: “Publishers, whose goal is to protect their intellectual property from unauthorized uses…” But publishers do not (in general) create intellectual property; “their” rights are only those licensed or signed away by authors. That paragraph assaults the Sabo bill as possibly wreaking havoc with publisher policies, and calling it an end-run around Eldred v. Ashcroft, which “weakened the pro-public domain camp.” (What about those who believe that both copyright and the public domain play important roles? What “camp” are we in?)
Would it surprise you that Slater uses scare quotes around fair use? It shouldn’t.
The set of brief summaries of proposed copyright-related legislation is useful. As always with such summaries, whether the language comes from Slater or from the bills themselves, you need to take various adjectives and claims with several grains of salt. As you do this entire article.
Gasaway, Laura N., “Ameliorating the effects of term extension,” Against the Grain 15:5 (November 2003): 26-36.
After you read Slater’s hardline “copyright community” perspective, it’s useful to read Gasaway’s longer piece. Gasaway does make a simple error in introducing the Eldred Act (she says the $1 fee would be to maintain copyright “beyond fifty years after the author’s death,” while the proposal would call for such a fee after fifty years, period). Otherwise, she provides a readable, detailed discussion of the Eldred v Ashcroft decision, the new library exemption in Section 108 of the CTEA, and aspects of the open access/open archive movement. It’s a good, well-documented article that says briefly and more authoritatively some of the things I’ve been discussing at ridiculous length here and in Scholarly Article Access pieces. Recommended.
Hirtle, Peter B., “Digital preservation and copyright,” Stanford Copyright & Fair Use site (fairuse.stanford.edu, commentary & analysis section), November 2003.
In five print pages (and two pages of endnotes), Hirtle offers a concise, readable summary of copyright issues that relate to digital preservation. He summarizes the three specific sections of copyright law that “may be of assistance” in determining whether a library can legally digitize material for preservation, when the library doesn’t own the copyright and can’t be sure the material has passed to the public domain. It’s an excellent piece, includes a case study on preserving portions of the web, and is highly recommended.
Original material in this work is licensed under the Creative Commons Attribution-NonCommercial License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc/1.0 or send a letter to Creative Commons, 559 Nathan Abbott Way, Stanford, California 94305, USA.