October 18, 2005

Wouldn't it be great to have copyright information as part of an item's metadata?

Karen Coyle makes the sensible proposal that we actually enter copyright information (e.g. copyright notice information) into the metadata when we digitize stuff from our library collections. 

This would help us all (especially users) when we see an image and then try to figure out the copyright status of the original item. Read more about her proposal in Descriptive metadata for copyright status in First Monday October 2005

September 28, 2005

DO IT - a billion dollars a year for training, learning and content - it's time to pass S. 1023 and HR. 2512

Read Digital Promise co-chair Lawrence Grossman's speech on Libraries and Productive Aging, given at the National Leaders Forum, sponsored by the Institute of Museum and Library Services. 

Notice that he mentions that the DO-IT legislation, if passed, would make money available for library digitization projects.

August 25, 2005

Berkeley Historical Society lawsuit - Can a library, museum or archive charge money for photos that are in the public domain?

Well, I usually answer this question with: "They can try."   And of course many do - probably relying on court decisions that say a valid contract trumps copyright law, as long as there's "an extra element" in the contract.

But hold tight, I just saw in William Patry's blog that the Berkeley Historical Society has been sued by a local author who paid the Society to use photos for his book, Berkeley 1900.   

According to the San Francisco Daily Journal (Aug 2, 2005), the author sued after the President of the Historical Society successfully asked a local hardware store to remove two copied photos that were on display with the book. No fees had been paid for the display photos.

The author claims that federal copyright law preempts (trumps) his signed agreement, which said:

Berkeley Historical Society photo prints or digital copies may not be published in any form without paying a fee and signing a one-time-use agreement.

If the Historical Society loses, would that be a blow to libraries, museums and archives who sell copies of public domain works?  If they hold the only physical copies, an author or other user must get the library's permission, whether or not a fee is charged. 

On the other hand, if someone else downstream makes a copy - someone who didn't sign an agreement, that person isn't liable under contract.

Peter Hirtle's Archives or Assets? sensibly recommends "responsible" revenue when digitizing photos etc by adding value ... metadata etc.

You can find earlier details on the lawsuit at a June 20 posting in Silicon Valley Media Law Blog, who at least at that time, expected a settlement.

Schwartz v. Berkeley Historical Society, (3:05-cv-01551)

Good reason to procrastinate - wait til October for easier copyright searching

The U.S. Copyright Office announced that eCO Search, will be available around October 1, 2005.  eCO search will offer keyword searching in a single database of about 20 million monographs, serials and recorded documents.

This is still only for post-1978 U.S. copyright registration records. At one of the orphan works roundtables, MaryBeth Peters mentioned that the Office has done a cost analysis to digitize, index and integrate pre-1978 records - about $35 million. She said the Office is considering a plan to do it in segments, and have a line item in the budget next year to work out such a plan.

August 17, 2005

Pointer to GoogleLibrary discussion

Donna Wentworth at Copyfight excerpts and links to discussion on libraries, copyright and GooglePrint. 

Could Google be considered a library? I don't think so, but you can read further discussion there and decide for yourself.  If Google is a library, [which it isn't*], it would not be liable for infringement if it made a good faith fair use assessment of GoogleLibrary.

Okay, I'm the only one I know calling it GoogleLibrary - but that's to distinguish it from the larger GooglePrint program, which is largely a publisher-authorized program indexing in-print titles.


*Added later - that is, legally, Google isn't a library with respect to copyright law. See discussion at Copyfight link above for more detail.

August 08, 2005

Investigating the copyright status of a serial

A colleague recently wrote to me to ask advice on how to investigate the copyright status of an article in a journal published in the 1930s.  Unfortunately the Copyright Office's Circular 22, "How to investigate the copyright status of a work" (available in multiple formats from <http://www.copyright.gov/circs/>) only provides an overview of the process, but does not have specific recommendations.  The terrific article by Samuel Demas and Jennie L. Brogdon entitled "Determining Copyright Status for Preservation and Access: Defining Reasonable Effort," Library Resources and Technical Services 41:4 (October, 1997): 323-334, only covers monographs, not serials.

What I told him I would do follows, but I would be interested to learn how others would approach the task.

Continue reading "Investigating the copyright status of a serial" »

August 05, 2005

Library copyright exception - what is "normal commercial exploitation" ?

Not a trick question ... just one in need of an answer.  This week I was teaching librarians who are embarking on digitization projects Wednesday about the little-known Sonny Bono exception for libraries.  Section 108 allows libraries, archives and nonprofit educational institutions to make copies of work in their last 20 years, so long as the works are not subject to "normal commercial exploitation" (17 USC 108h) (nor obtainable at a reasonable price, nor on an owner-filed notice per 108h).  What does that mean?

The good news is that a library copyright study group has been convened by the Library of Congress ... with none other than our own Peter Hirtle as a member.  If you have suggestions on how to define "normal commercial exploitation" (or other library copyright suggestions), add them here or send them directly to the group.

August 01, 2005

California Local History Digital Resources Project workshops

California Local History Digital Resources Project workshops this week (Northern California Aug 1 -3) and next week (Southern California Aug 8-11) :

In cooperation with The California Digital Library (CDL) and the California State Library LSTA Grants Program (CSL), Infopeople presents a three course, full-day digitization workshop series for representatives from libraries that received a FY2005/2006 LSTA 6-LHDRP grant. (A fourth course in the series is to be offered in 2006).


I'm presenting the copyright portion of these workshops - Aug 3d and Aug 8th. 

(On a personal note, if you've recently sent me an email or voicemail, I probably won't be able to get back to you until after these are over...in fact I'm still recovering from jet lag.)

July 31, 2005

Next U.S. Copyright Office orphan works roundtable at Berkeley, Tuesday Aug 2

The next Copyright Office orphan works session is this Tuesday at UC Berkeley. I'm planning on attending - introduce yourself to me if you're a blogger (or bloggee).


Berkeley, California
Tuesday, August 2, 2005
Boalt Hall School of Law, University of California - Berkeley, Goldberg Room
9:00 AM - 5:00 PM P.D.T

June 20, 2005

When can you digitize old newspapers?

I got this question at the very end of the Digital Reference Legal Issues webcast, and we'd already cut off the connection.  It's actually a very complicated answer, and I hereby refer to this reply.

June 17, 2005

Breaking News: Google / Univ of Michigan Digization contract available now

Dear Mary Minow:

The U of Michigan has posted their confidential agreement with Google in response to my freedom of information request. See the link at the top of www.google-watch.org/appeal.html

I have some observations after reading this thing. Either the U of M decided that Google deserved a big fat Christmas present last December, or U of M's lawyers all had hangovers from a Christmas party.

Google gets to do anything it wants with the public domain material it digitizes, and U of M cannot do anything with this material other than use it on their own website, assuming that measures are taken to prevent crawling, scraping, or other types of automatic retrieval. As for copyrighted material, Google decides what is "fair use" and what isn't, and U of M is out of the picture.

The only place where I saw the word "privacy" in the agreement is here:

"4.5.2  Google shall maintain on its website a privacy policy that governs collection and use of information that Google obtains from a user of the Google Search Services."

That is absolutely worthless. We know this because every privacy policy Google has published on their website is absolutely worthless. Every single one is full of loopholes, assuming you can find anything concrete in them to begin with.

This was interesting:

"6.3  Confidentiality  (Exceptions)  Google understands that U of M, as a public institution, is subject to the Michigan Freedom of Information Act, and any disclosure of Confidential Information required by that statute will not constitute a breach of this agreement."

The whole agreement was confidential. The U of M is the only one of the five libraries that is not private, and subject to government regulation. Clearly, Google was hoping that no one would notice. They were almost right -- it was nearly five months before I decided to search for "freedom of information" and "university of michigan." Shame on me, and even more shame on everyone else. But the most shame on Google and the U of M, who should have taken one look at the situation and decided to skip all the confidentiality language from the start.

This is, after all, clearly a public policy issue. Remember, Google is on a mission from God to organize all the world's information. That's just about as public as you can get.

-- Daniel Brandt

June 01, 2005

The time is NOW to fax your Senators and Congresspersons to support digitization projects

If you care about getting money to digitize library materials, send a fax or email to your Senators and Congresspersons right now, supporting DO-IT legislation, just introduced in the House and the Senate. DO-IT says that Congressional leaders will be reaching out to their Senate and House colleagues next week to get co-sponsors to House (HR-2512) and Senate  (S. 1023) bills.  Here are sample letters to House Representatives and to Senators.  Actual examples are here 1, 2, 3

If your reps are on the House Commerce Committee or the House Education and Workforce Committee, the Senate Commerce Committee or the Senate HELP Committee, they are especially important... click on the committee, and then your member to get contact info.  Then do it - send your support for this legislation that will help fund library and education digital projects.

Congressman Ralph Regula of Ohio, a senior Republican appropriator and longtime DO IT champion, joined Ed Markey (D-MA) and Paul Gillmor (R-OH) to introduce HR-2512 on May 19th. Senator Conrad Burns (R-MT) joined Senators Dodd (D-CT), Snowe (R-ME) and Durbin (D-IL) in introducing S. 1023 on May 12th. These are folks to THANK!

Here's quick background. More at Digitalpromise.org 

April 16, 2005

Summary of Orphan Works submissions to Copyright Office by Peter Hirtle

I don't know if you've waded through the hundreds of submissions to the Copyright Office inquiry on orphan works, but I have not. Thus, I am grateful to Peter Hirtle who summarizes the submissions in an FAQ for RLG DigiNews April 15, 2005,

He writes that many of them document unsuccessful efforts by individuals to locate copyright owners.  There are also submissions from copyright owner representatives concerned about potential new regulations if they could increase infringements.

Peter says he has yet to find a submission that endorses the Canadian approach which requires users to submit extensive research on an orphan's copyright status to a government board.

Instead, he writes, many submissions endorse an approach that would require users to conduct a "reasonable" investigation into copyright status, and then enjoy immunity from statutory damages, attorney's fees and injunctive relief.  Other proposals suggest that users publicize their intent to use a presumably orphan work via a website maintained by the Copyright Office.

Peter reminds us that the open period for replies lasts until May 9th. He suggests we focus reply comments on the proposed solutions. Notably, can we set forth a bright line determination of "reasonable effort?" (Minow: I'm over-paraphrasing Peter here, so look at his original.  I feel strongly about this too. If we don't have some concrete measure of "reasonable effort," have we really set forth a safe harbor for risk averse folks?)

Tip of the hat to Peter Suber, Open Access News, for pointing to Peter's helpful article.  In fact, that's how I found out about it!

March 25, 2005

My orphan comments

Here they are:

Continue reading "My orphan comments" »

March 22, 2005

Reminder: Orphan Works comments to Copyright Office due March 25th

This is a reminder to myself - but maybe to you too.  The deadline to send in comments to help libraries and others digitize old stuff is fast approaching - on Friday.  Either send in your own comments or quickly send your comments to the American Library Association.  The ALA just posted an outline of its draft proposal.

ALA outline:

  • The definition of an orphan work is a work for which the copyright owner cannot be reasonably located.
  • The types of works to which the draft solution applies is wide in scope - published and unpublished works and older as well as recent works. It may be just as difficult to identify the copyright owner of a recent photograph as an older work.
  • The use of orphan works should apply to all types of uses, not-for-profit and for profit.
  • The legislative solution is not limited to specific constituencies, e.g. libraries or educational institutions. The interest in using orphan works is far too broad for such a limitation.
  • The proposal calls for a " reasonable efforts search" by "qualified users." A reasonable effort would be an effort to identify and locate copyright owners in good faith, using location tools and other resources, and that is considered reasonable under the totality of the circumstances. Such a user is an institution or individual who uses an orphan work after conducting a reasonable search.
  • The proposal will provide general guidance to the user as to what constitutes a reasonable effort, e.g. use of "best practices" developed by relevant professional organizations (e.g. from CAA, the library community, etc.) and information from the Copyright Office.
  • Once a reasonable effort has been conducted, a user may use an orphan work without limitation unless or until an owner comes forward. If an owner does come forward, new use of that work would require permission. Previous use could continue.
  • Provisions relating to pursuing legal action are included as are limitations on remedies and liability
  • February 23, 2005

    Are libraries thinking about the commercialization of GoogleLibrary?

    "Which encyclopedia should I buy for my children?" I'll bet most librarians (and all public librarians) have fielded that question. If they were trained the way I was, the answer is to lead the patrons to encyclopedia buying guides which evaluate a number of features, to help users decide for themselves. We were taught to resist the temptation to just say "World Book."

    But do libraries know what they may be heading for when turning over massive collections for digitization by a commercial player? I am still enthusiastic about the prospect of making information as accessible as possible to everyone, but we must ask the right questions in the early stages.

    Marc Rotenberg, Executive Director of the Electronic Privacy Information Center,  pointed out this important concern to me: do libraries that are turning over their holdings to Google realize how sophisticated (and anti-competitive) online advertising has become? In a Feb. 18 CNet article, Stefanie Olsen writes that the newest version of Google's browser toolbar (now in beta) has a feature that automatically triggers links on web pages that have certain text -- street addresses "suddenly sprout links to Google's map service by default."

    As another example, book publishers' ISBN numbers trigger links to Amazon.com. Google actually modifies the HTML of a third party's web page.

    For example, I might recommend you buy The Library's Legal Answer Book             ISBN 0-8389-0828-4 from the American Library Association online store or from Powells.com (actually, please do). But if I understand correctly, if I type it like that, not linking 0-8389-0828-4 anywhere, the ISBN number would be linked for me to Amazon, at least for Google toolbar users.

    Olsen reports that Marissa Mayer, Google's director of Web products, says that it is a user-elected feature, and in its full release in April, ISBN numbers might trigger links to other sites (booksellers, I suppose) for user selection. How the other sites may be chosen is not described.

    Google Print is already up and running, of course, and you can search it today, and see which booksellers are linked to the titles.  Instructions on how to search Google Print are not well publicized, but you can try it here ...

    Continue reading "Are libraries thinking about the commercialization of GoogleLibrary?" »

    February 21, 2005

    Unpublished works and the public domain - talk by Elizabeth Townsend-Gard

    I heard a passionate talk by Elizabeth Townsend-Gard today at Stanford Law School.  She spoke about the problems tracking down copyright status of unpublished works.  I always look at this from a librarian's perspective.  She brought in the perspective of scholars who wish to use old unpublished works, or even small excerpts to breathe life into the biographies or other works that they are currently writing. Even if the scholars are able to track down an item in a library or archive, they face practically insurmountable problems when it comes to publishing excerpts in their new works....and often they just don't.

    Clearly this doesn't promote progress....

    See Elizabeth's blog at http://academiccopyright.typepad.com/academiccopyright/

    Orphan works - segregated trust account?

    In working on my comments to the Copyright Office about orphan works, I came across two provisions in the Code of Federal Regulations dealing with "unknown copyright owners" in two contexts (1) public broadcasting and (2) digital performances.  In both, fees may be put into a segregated trust account for three years, after which copyright owners have no right to make claims.

    Could something similar be set up for libraries and nonprofit agencies who want to digitize orphan works?

    To read the regulations..

    Continue reading "Orphan works - segregated trust account?" »

    February 16, 2005

    GoogleLibrary (aka GooglePrint), Million Book Project and Google Scholar compared

    Found this PowerPoint presentation while surfing: Google Print, Million Book Project, and Google Scholar, Digital Libraries Colloquium, January 27, 2005, Gloriana St. Clair, Dean of University Libraries, Carnegie Mellon.  Cites our own Misseli.  Looks at copyright, logistics, finances and worries.

    February 15, 2005

    GoogleLibrary - a really efficient index

    Ernest Miller looks at the copyright problem inherent in the GoogleLibrary digitization project in a new way… the database could be seen as a really efficient index.  In response, Joe points to the Kelly v Arriba Soft case, in which a federal appellate court found an Internet index of images on the web to be FAIR USE.  Even though Arriba Soft crawled the web and made full-sized copies of the images it found (including copyright owner Kelly's photographs), it  only made low-resolution thumbnails available in its image index. The full-sized images were then deleted from the Arriba Soft server. The thumbnail images, according to the court, served a completely different purpose than the aesthetic purpose of the original photographs. A quick trip to Arriba's copyright page (now “ditto.com”)  finds this statement: “These thumbnails are not used by Ditto for any other purpose than to provide an effective visual search mechanism.”

    Looking at  GoogleLibrary as an index displaying only snippets, I think a strong argument can be made for fair use. Like the thumbnail image index, the books are used in a transformative way, even though it must make copies (106(1)) to create the index.

    Not only do you need the full text to create the cool index, you need it online. Deleting the full text would delete the index.

    But what else happens to the full text copies? GoogleLibrary says the libraries get digital copies for their own use... Will the copies be kept in a virtual vault for safekeeping or will they be made available to students?

    Aside: Arriba Soft's thumbnails linked back to the original source's site, but used Arriba's banner and ads.  This issue was remanded. When I clicked on a thumbnail at ditto.com today, I noticed that it brought me to the original source, without any Arriba/ditto banners or ads.

    See also Aaron Hand's Arriba Soft analysis of Google News headline service.

    Kelly v Arriba Soft, 336 F.3d 811 (9th Cir. 2003) (note: the 9th Circuit 2002 opinion was withdrawn). See excerpts below:

    Continue reading "GoogleLibrary - a really efficient index" »

    February 09, 2005

    Need for student research papers: Google library project and privacy

    If you're a student looking to research an issue and want to make a difference, write about the privacy implications of the Google library research project. Send thoughtful papers backed by research in to this blog and we'll link to them. Comparisons with the Internet Archive Million Book Project would be useful.

    I'm more alarmed about readers' privacy after reading Mike Mill's article in CQ than I was before, since I'm such a big fan of "don't be evil" Google.  My hope is that privacy concerns will be integral in the planning process.  I think every librarian and library student should read Mike Mills' article in CQ.  He has given permission to post his article here

    February 07, 2005

    Small orphan bill reintroduced, bigger implications? HR24

    For update on Senate bill, see comments below.

    The PRO-USE Act (H. R. 24) may seem like a small bill, but the more I think about it, the implications may be greater than they appear, and the implications are good. It gets the problem of at least some orphan works to the attention of Congress, and the bill would help libraries and others.

    Perhaps you remember the small orphan bill that died quietly last term.  I say small, since it doesn't come close to embracing the totality of the orphan works problem - great stuff written by dead people, languishing in library collections that yearns (in my humble opinion) to be put on the web. 

    I say small, since this bill addresses only the last twenty years of copyright (see the yellow column in my chart).

    I say small, since this bill seeks to fix a technicality - that is return the musical, pictorial, graphic and sculptural works that were inadvertently left out (apparently a drafting error) when the Sonny Bono Act added twenty years of copyright term and partially returned them to libraries, archives, and some nonprofits under a set of conditions:

    (A) the work is not subject to normal commercial exploitation;

    (B) a copy or phonorecord of the work cannot be obtained at a reasonable price;

    (C) the copyright owner or its agent has not provided notice to Copyright Office

    I say small, since no one knows what "normal commercial exploitation" means, and quite frankly, risk averse institutions are not making use of this anyway. As a consultant I always urge people to use this provision.

    And that's where I think the implications of this small bill are actually quite heartening.  Howard "Hollywood" Berman (CA) is sponsoring HR 24, with John Conyers (MI) and Zoe Lofgren (CA).

    The implication, I think, is that film preservationists are willing to use the provision (once it's extended to films), despite the wretched "normal commercial exploitation" language.   Film copyrights are the absolute worst, what with underlying music, performance rights etc.

    If they are going to the trouble of lobbying for this correction, and willing to use it, libraries should use works in those last twenty years too. And libraries are already legally covered for all works except musical, pictorial, graphic and sculptural works.  That means they should be digitizing those church bulletins, newsletters etc.

    Of course, none of this applies to unpublished works.  We should push for their return to libraries too. And we have a chance to do so: as followers of the orphan issue know, the Copyright Office recently asked for our comments about orphan works, due March 25th.

    For HR24 and for Howard Berman's remarks in Congressional Record January 6...

    Continue reading "Small orphan bill reintroduced, bigger implications? HR24" »

    February 05, 2005

    What me worry? Google's unhelpful reassurance about users' privacy

    2/9/05 Update: Mills article is here


    What privacy implications does the Google/Libraries project raise?  Mike Mills, executive editor at CQ Weekly says a Google source told him:

    "...libraries shouldn't worry because Google users aren't patrons in the traditional sense -- they won't be "checking out" books, they'll be visiting library Web pages. Moreover, he said, law enforcement officials are more likely to track suspects through Internet service providers than through Google; ISPs keep even more detailed data on users' names, search-histories and overall Web usage."

    - Mike Mills, "Googling the Stacks: Libraries love Google's offer to scan their holdings but they also love keeping borrowers' records private."  CQ Weekly January 24, 2005  (you can get the whole issue here, then go to page 172)

    Combine this with the persistent cookie (expires 2038), used to track your search history (for targeted advertising) and it looks like serious questions should be asked about privacy implications for users. 

    Libraries don't just care about users privacy inside a brick building ... we care about the freedom to read without the fear that a government agent is looking over our shoulders, wherever we may be.

    January 29, 2005

    Great News! Orphan works examined by Copyright Office - public comment solicited - deadline March 25th

    Finally, great news on the copyright front: The Copyright Office is asking for public comment on how to address the Orphan Works problem. EVERYONE who is involved in a library, archive, museum or any digitization project should weigh in on this one.

    I can't tell you how many times librarians, archivists and museum folks have asked me if they can digitize their local history files, photos (no photographers listed, naturally), defunct local newspapers etc...

    The copyright problems are monumental, even when virtually everyone would agree that the promotion of progress would be served by digitizing.

    The Federal Register notice on orphan works asks us to help define the problems, the definitions and to offer solutions.

    I’ll work with the California Associaton of Library Trustees and Commissioners to craft  comments (I’m its policy analyst) … and would appreciate input from anyone involved.  If you're interested in seeing our draft in a month or so, and possibly signing on, let me know.

    Feel free to make comments here on this blog as a sounding board. And by ALL MEANS send in comments by March 25th to the Copyright Office. For the Federal Register notice...

    Continue reading "Great News! Orphan works examined by Copyright Office - public comment solicited - deadline March 25th" »

    January 23, 2005

    Internet Archive copyright decision appealed

    This is the lawsuit to free old, out-of-print works that libraries and others want to digitize, but are still under an ever-lengthening copyright term. Tracking down copyright owners can be extremely difficult to impossible. In fact, the owners could be an author's heirs who have no clue that they own the copyright to, say, a 1930s church newsletter.

    As Brewster Kahle, a plaintiff in the suit, posted to the archivists-talk list:

    "Let's hope sanity prevails and we protect our libraries."

    Source: Teleread January 21st

    January 21, 2005

    Who you gonna sue? More musings on the Google Library digitization project

    If you were a publisher/author who hasn't give permission to google to digitize, and you find that the google library project has, in fact, digitized your copyrighted work, who would you sue? 

    Scratch a lawyer and you'll likely get the standard answer: everyone involved. 

    Yet if you look at liability in terms of dollars,  copyright law is much more generous to libraries and education institutions when it comes to penalties.  If the library makes a good faith fair use argument, the penalties can go down to $0, even if the library loses the case.  That would not be true for Google. 

    If the library was the only actor, the case might not be brought. But here, there's a deep pocket -- Google. If the library is a co-defendant, I believe the library could be responsible for attorney fees unless that responsibility has been shifted by contract to Google. 

    For a thoughtful discussion of attorney fees and fair use, see Robert Kasunic's "Fair Use and the Educator's Right to Photocopy Copyrighted Material for Classroom Use" esp the text around footnotes 28-29.

    Can a good faith fair-use argument be made here? I think it can and should be made, though it will vary by the individual circumstances - what copies are being made of which items, and what happens to those copies...

    The four fair use factors are: Purpose, Nature of the work, Amount, Market Impact.  See my article already linked above.

    Perhaps blog readers might care to comment on how to apply these factors (and the overall purpose of promoting progress), to this project.

    January 20, 2005

    More info on Stanford Libraries and the Google project

    The Stanford FAQ on the Google project is now up.

    Thanks, Eli, for the heads up.

    January 12, 2005

    Update on Google, Libraries and Privacy from Daniel Brandt

    Update from Daniel Brandt on Google, Libraries and Privacy:

    Nowhere in the press have any librarians or academics expressed concerns about privacy issues. Google has the capacity, the history, and the intention of tracking the browsing habits of anyone and everyone who visits any of their sites. Since its inception, Google has used a cookie with a unique ID in it that expires in 2038. They record this ID, along with the IP address, the search terms, and a time/date stamp, for everyone who searches at Google. To make matters worse, Google never comments on their relations with officials in the dozens of countries where they operate. Google even required the libraries to sign nondisclosure agreements.

    from  2005-01-12 webpronews.com

    Thank you, Amanda Welsh, for sending in the link ... and congratulations to you on your book talking events!

    January 10, 2005

    Mad Librarian lowdown on Stanford's participation in Google digitization project

    Misseli, the Mad Librarian, gives us the lowdown from a Stanford library employee meeting on the Google/Stanford deal

    She says that Stanford has NOT made a commitment to digitize all of its books, but we "will do as much as we can for as long as we can."

    Excerpts from her notes: What Google will provide to the public --

    Works in copyright won't be fully available

    For copyrighted works -- there will be a click-through to the appropriate OCLC WorldCat record

    Approximately 10% of Stanford's overall collection is clearly out of copyright; other material in the public domain (such as U.S. government documents) will be included in the project.

    Google will be responsible for determining what's in copyright and what's not if there are any questionable materials.

    Each books that is digitized will be KEPT -- our patrons will continue to need those physical books and we will provide for them.

    December 20, 2004

    Will publishers sue Google and the libraries over copyright?

    Some of you have asked about copyright issues in the Google Print - the massive library project...that is why aren't the players frozen by fear of lawsuits? Barbara Quint relays some reassurance from publishers:

    Although some library participants apparently were worried that publishers might object to the program on the grounds of copyright violation, Patricia Schroeder, executive director of the Association of American Publishers (AAP), assured me that they have no immediate plans to try to deter the program, such as through legal action. The program expands on the existing Google Print program built on similar digitization done in direct arrangements with publishers.

    from Google and Research Libraries Launch Massive Digitization Project by Barbara Quint, Information Today December 20, 2004

    Minow take: This is very good news. It doesn't cover every publisher/author, of course, but it could help reshape our norms.  This in turn affects fair use analysis by courts. Further, it could help efforts to update copyright law and regain some of the balance that users have badly lost over the last several years.  Section 108 needs to be revised, and this project helps us visualize the promotion of progress, giving some user access while retaining incentives for authors. I think it sounds like a fabulous, forward thinking project. I hope some privacy concerns are being discussed.

    Read on for more from Barbara Quint's conversation with Pat Schroeder:

    Continue reading "Will publishers sue Google and the libraries over copyright?" »

    December 16, 2004

    Google-Watchers - want privacy guarantees before handing over library books for Google digitization

    Google Watch is asking libraries to lean on Google regarding its privacy policies, as part of the Google/Library Digitization massive scanning project:

    It is my feeling that those librarians who contract with Google for access to their books and documents for purposes of digitization should require that any future searches done on Google that produce this material, must respect the anonymity of the searcher. This would mean that Google cannot record the IP address or unique ID from the cookie for such searches. Short of this, another alternative would be for libraries to deny Google access to any literature that has political content or relevance.                [Emphasis is mine - Mary]

    Letter to Mitch Freedman, Past President of ALA from Daniel Brandt

    December 09, 2004

    Fair Use Lobby cheers death of omnibus bill - but orphan works provision also dead

    Fair-use advocates celebrated the apparent demise of an omnibus Intellectual Property package (S-3201) they have battled from the very beginning. Gigi B. Sohn, president of Public Knowledge, said,

    "Consumers should be pleased that Congress ended its session without passing legislation that would have restricted consumers' freedom to use digital media, restricted their access to information or otherwise strengthened copyright law beyond what the framers of the Constitution envisioned. Now that two Congresses have ended without major copyright legislation, we hope that the large content companies will focus their efforts on creating new business models that take advantage of new technologies rather than on legislation that would hobble the development of new technologies. But if legislation is needed, Public Knowledge looks forward to working with members of Congress and the content community on narrow fixes to copyright law as well as on our initiatives, which are intended to bring balance to copyright law and protect the rights of consumers to use digital content and information."

    [SOURCE: Communications Daily, AUTHOR: Randy Barrett]
    (Not available online)

    Minow note: Overall, it's great for libraries that the copyright bills failed.  It's too bad, however, that a narrow library fix that was folded into the omnibus bill S 3021 (Title IV)also failed. This was originally sponsored by Reps. Berman, Lofgren and Smith as 'Preservation of Orphan Works Act'

    The Orphan Works Act got precious little press. It would have fixed an oversight in the drafting of the library exception to the Sonny Bono Copyright Term Extension Act.  The library exception allows libraries, archives and nonprofit educational institutions to make copies of works, in the last twenty years of their copyright, so long as the works are not subject to normal commercial exploitation.

    If you carefully read Sect. 108, you see that libraries can only make copies of audiovisual (e.g. films), graphics etc for preservation and replacement.

    The Berman bill would have amended 108 to make it clear that libraries can also make copies of films etc. in the last twenty years of the copyright. This essentially returns us to the pre-Sonny Bono world.  That is, except there's still the hitch that you can only copy works in those last twenty years if they are not subject to "normal commercial exploitation", and no one knows what that really means.

    I include the bill and the current law in the continuation.  Let's thank Reps. Berman, Lofgren and Smith, and encourage them to reintroduce in 109th Congress.  Maybe that could be a vehicle for greater access to orphan works, or at least a definition of "normal commercial exploitation" that calms library nerves.

    Continue reading "Fair Use Lobby cheers death of omnibus bill - but orphan works provision also dead" »

    December 01, 2004

    Another brick in the wall - Kahle lawsuit dismissed

    Closing off a possible opening for libraries and archives that want to digitize old works,  the Kahle lawsuit was dismissed Nov 19th.

    Quick summary: the court said that the lawsuit's premise (that eliminating renewal requirements for works published 1964-1977 violated both the "limited times" provision in the Constitution and the First Amendment) did not rise to a constitutional question. Instead, said the court, the formalities are mere procedures necessary to maintain copyright protection. 

    Minow take: Kahle certainly had an uphill battle in light of the Eldred case, the Supreme Court case that upheld the Sonny Bono Act in 1998. That Act added twenty more years of copyright, even for dead authors who presumably have zero incentive to create more. U.S. Copyright now lasts for the author's lifetime plus 70 years, which I would argue is pushing the Constitution Sec. 8 Cl. 8 "limited times" beyond reasonable limits. The Eldred decision, however, said it's up to Congress to define "limited times," and the Supreme Court was not in the position to judge Congressional lack of wisdom. 

    I'm surprised, however, that the court decided to dismiss the case without a hearing.  This means the plaintiffs can't present any "real world" effects on libraries and archives unless they win an appeal.


    Kahle v Ashcroft, No. C-04-1127 MMC ORDER GRANTING MOTION TO DISMISS; VACATING HEARING (Docket No. 24), U.S. Dist Court for the Northern Dist. of Calif., Nov 19, 2004 at www.joegratz.net/files/Kahle-ChesneyDismissal.pdf

    Continue reading "Another brick in the wall - Kahle lawsuit dismissed" »

    November 15, 2004

    Attention New Jersey readers: Don't Run Away Screaming! Addressing Legal Issues in Digitization Projects

    If you're in New Jersey, you may (or may not) want to know that I'll be presenting Don't Run Away Screaming! Addressing Legal Issues in Digitization Projects on behalf of the New Jersey Digital Highway Advisory Committee. December 13, from 9:30 a.m. - 12:00 Noon, at Scholarly Communications Center, Alexander Library, at Rutgers University, New Brunswick, NJ. To register, click here.

    October 14, 2004

    Kahle update: Ruling expected as early as this month

    California Lawyer Magazine

    Fettered Access
    A federal suit challenges current copyright law.

    As the sponsors of the world-famous Prelinger Archives (accessible for free at the Internet Archive, www.archive.org), Rick and Megan Prelinger have spent years amassing volumes of seemingly valueless print media and film because they believe that history can be found in unlikely places-like in the back issues of Schism magazine. An obscure periodical dating back to the 1960s, Schism reprinted articles from equally obscure publications espousing divergent political views.

    "Given the political mood this year, it would have been interesting to put this online and see how it resonates," says Megan Prelinger. But because of copyright concerns, the magazine remains on the shelf-along with a thousand deteriorating films. "The copyright lasts longer than the film itself," Megan Prelinger observes.

    Judge Maxine M. Chesney is expected to return a ruling as early as this month.

    September 20, 2004

    Wired News: Saving the Artistic Orphans

    In Wired (Sept 20), Katie Dean writes about the Kahle case:

    The plaintiffs are currently collecting examples of orphan works to bolster their case. In one instance, a university seeks to digitize all the newspapers in the state, but for some of the defunct papers, it is impossible to know who owns the back issues, Sprigman said.

    In another case, an editor would like to re-publish the essays of Dr. Leo Alexander, who wrote articles that dissect Nazi ethics for criminology journals, but the author is dead and his heirs haven't been found to grant permission. Schism, a monthly magazine of fringe literature from the late 1960s and early 1970s, is another puzzle where the copyright owner is unknown.

    Library and archive examples are still needed. If your digitization project has stalled cuz you have no clue who to contact for permissions, submit the details here.

    September 03, 2004

    How much is the copyright in out-of-print works worth?

    A library asked me today if it could digitize a work published in 1923 using the provisions of 108(h) of the Copyright Law. I responded with the conditions in the law: the work must not be subject to normal commercial exploitation; it cannot be available in the market; or the owner has not filed a notice with the Copyright Office that either of the first two conditions applies.

    I wondered how one would check on the latter, so I called the Copyright Office to see if the "Notices to Libraries and Archives of Normal Commercial Exploitation or Availability at Reasonable Price" are searchable via the online database of documents on the Copyright Office web site. It turns out that they are not in the database - but only because the Copyright Office has yet to receive such a single notice from a copyright owner!

    Proponents of copyright extension argued that copyrights were so valuable that the term needed to be extended by twenty years. Yet the copyrights in out-of-print books is so insignificant that not one publisher has sought to protect them. Go figure.

    August 24, 2004

    Judge Posner's blog supports us

    First, I must mention how way cool it is that Judge Richard Posner is blogging this week at the Lessig Blog. He doesn't specifically mention libraries, but he just blogged:

    "... I believe, copying of old copyrighted works should be permitted if the copyright owner has not taken minimal steps to place copiers on notice of his interest."
    -- Judge Richard Posner, Fair Use Elaborated blog entry Aug 23

    Alas, although this enlightened thinking would allow libraries to digitize a lot more old stuff, it's his unofficial opinion. It's not the law. We're stuck with a regime that does not require such notice. Used to be that works could enter the public domain for lack of notice, but now works published 1978 and later are not required to have notice. The Berne treaty says no notice can be required. We need to change the law, but how?

    Judge Posner has a forthcoming law review article that may show us the way:

    Continue reading "Judge Posner's blog supports us" »

    August 09, 2004

    Copyright in Library-Held Materials: A Decision Tree for Librarians by Scott J. Burnham

    ooh, a decision tree from Library Law Journal Summer 2004

    July 30, 2004

    The Public Domain, Digitization, and Copyright

    Dr. Klaus Graf, the author of the useful Archivalia blog and a the maintainer of the extensive German site on museum law and cultural property, has supplied an interesting comment on my post on Copyright Term and the Public Domain in the United States. In it, Dr. Graf wonders about when digitization projects can exert copyright ownership over scanned versions of public domain works. In particular, he cites several statements from Cornell University sites, and asks if the University is not overstepping what the law allows. The comment raises a number of interesting issues that are worth an extended response.

    Continue reading "The Public Domain, Digitization, and Copyright" »

    July 01, 2004

    Your experiences with renewals database?

    I'd love to hear whether or not folks are using the unofficial copyright renewals database and what your experiences have been with its thoroughness and accuracy. The fact that the Copyright Office is looking at doing its own (see Peter's post directly below) is encouraging but may point to problems with the unofficial version...

    June 29, 2004

    Kahle update: DOJ files motion to dismiss

    From Chris Sprigman's blog:

    Entry Archive: Kahle v. Ashcroft: Government files motion to dismiss
    As expected. Read it here.

    We will be working with the DOJ to set a mutually acceptable briefing schedule. The battle has begun. Stay tuned.

    June 25, 2004

    Kahle copyright lawsuit story submission site is now up -- please add your story

    Lawrence Lessig and his legal team are asking for your help. Kahle v. Ashcroft is a lawsuit that challenges changes to U.S. copyright law that have created a large class of "orphan works" -- creative works which are out of print and no longer commercially available, but which are still regulated by copyright. To help win the lawsuit, we are looking for more examples of people being burdened by these copyright-related barriers to the use of orphan works. Visit the Kahle Submission Site and tell us your story.
    Thanks very much.
    Joe Gratz
    Stanford CIS

    Additional note from Mary Minow: Librarians and archivists generally define "orphan works" more narrowly - to refer to works that have no copyright owners that can be found through "reasonable efforts." That is, a university press that is still in business may have o.p. material, but is easy to find to request permissions. This is not the case for many of library/archive/museum collections that have old works with very limited publication (say a church newsletter) by dead authors. Finding heirs who have since had their own descendants and have no idea that they are the owners of these works is challenging to put it mildly. These are the best examples, in my opinion. Please contribute your sad stories of works that are not commercially viable that would add to our collective knowledge ... but that YOU WON'T DIGITIZE because the works are still in copyright. Works published from 1963-1977 are especially useful examples, since those are the years that had automatic copyright renewals.

    June 14, 2004

    Peters on 108(h)

    Elizabeth Rader recently noted some interesting testimony by Mary Beth Peters, the Register of Copyright.

    There is much of interest in the testimony, including Peters's response to the critics of the DMCA rulemaking (of which I have been one), but her comments on Section 108(h) were of special interest:

    A key component of the Sonny Bono Copyright Term Extension Act, which extended copyright terms by twenty years, was an exception to help ensure public access to works in the last twenty years of their copyright term. During consideration of the issue, the Chairman of this Subcommittee asked the Office to facilitate negotiations between libraries, educational institutions and copyright owners with a goal of reaching agreement on the scope of a possible exemption. There were numerous meetings over a span of many months. Although there was some disagreement on the language of the exemption, there was no disagreement that the exemption would apply to all types of works.
    The exemption, which became 17 U.S.C. 108(h), essentially permits a nonprofit library, educational institution or archive to reproduce or distribute copies of a work, including in digital format, and to display or perform a work during the last twenty years of the copyright term as long as that work is not commercially available. Unfortunately, the terms of section 108(i) make this exception inapplicable to motion pictures, musical works and pictorial, graphic and sculptural works. I am hopeful that this error will be remedied and would be pleased to work with the Subcommittee to correct it.

    There are some of us who believe 108(h) was a sorry bone tossed to the library community in a sorry attempt to buy their support of the ill-conceived extension of copyright. Nevertheless, extending the provisions to formats other than text - and I would hope unpublished works as well - might make it slightly more usable.

    Does anyone know of a library that has used 108(h) to digitize works?

    June 12, 2004

    Call for help: Million Book Project needs more books to scan

    Please post to relevant lists you are a member of - thanks

    Michael Lesk tells me that the Million Book Project is running out of books to scan. They are looking for libraries that are willing to lend large numbers of books that can be legally scanned (tens of thousands preferred.)

    This might be...
    a) A library doing large-scale weeding of old books
    b) A library closing down a branch facility
    c) A library renovating a building with a plan to put books in storage for a year.
    and if you happen to know of this
    d) A large used book store going out of business (but with old enough books to be useful -- piles of Stephen King novels from the 1980s are not helpful)

    June 11, 2004

    Copyright Renewal Database for Monographs - breakthrough!

    Breakthrough: There is now a database you can check to see if a monograph's copyright was renewed. A big improvement over searching the catolog for copyright entries year by year. http://www.scils.rutgers.edu/~lesk/copyrenew.html

    According to Michael Lesk, Carnegie Mellon University sent the records to India where they were scanned and proofread by Project Gutenberg Distributed Proofreading. Michael then ran the lookup with 150 lines of PHP. The more recent years were screenscraped from the LC site.

    The database covers works from 1923-1963. Before 1923, U.S. works are in the public domain. After 1963, works got automatic renewals. The database covers monographs only, no scores, audiovisual works, etc.

    This database is a big deal. It means that library digitization projects can FINALLY easily check renewals. U.S. published works from 1923-1963 that were not renewed are in the public domain. See Peter Hirtle's chart and look at published works for more detail.

    Thanks to Christa Easton and Megan Prelinger for alerting me to this resource.

    June 08, 2004

    Help fight removal of works from the public domain

    As a followup to this post concerning the Kahle lawsuit, an update about another lawsuit -- this time concerning foreign works.

    This lawsuit, Golan v. Ashcroft, filed in 2001, is attempting to restore to the public domain foreign works that were in the public domain, but have subsequently been "lost" to the public through the reintroduction of copyrights.

    These include foreign works that were published post-1923, such as the silent film Metropolis, the works of Stravinsky, and Orson Welles's The Third Man.

    A website has recently been set up to collect the stories of those who have been harmed through the restoration of these copyrights. This project is not limited to libraries and their collections, but is intended to find the harm to the whole American public.

    Stories so far posted include the inability to play Peter and the Wolf at children's concerts and a corrected edition of a piece of music is unable to be published.

    Rant: Tread Lightly on Mickey - Think about the Real Message

    Anti-Disney Protest Scheduled for ALA Conference [info-commons blog]

    I posted comments at info-commons blog on the anti-Disney protest planned during the annual American Libraries Association conference. I paste them in here:

    I hope the message doesn't get muddled. There are lots of people like me who love Mickey. I bet most of Florida will come to his defense.

    I'd hate to see the message sound like librarians are putting their limited free time into bringing the Mouse into the public domain. We're already seen by some as porn-pushers, privacy freaks (at expense of terrorism) and this protest, if not planned carefully, could help our growing reputation as pirates.

    None of these characterizations are at all fair - it's just that the opposition messages are simpler to enunciate than the nuanced messages we try to get across. Filters overblock, the Patriot Act sweeps away too many civil liberties and copyright owners have pushed content protection way off balance.

    The extra 20 years tacked on by the CTEA protects not just the mouse but all the good stuff in library/museum collections, that could be shared with the world.

    Continue reading "Rant: Tread Lightly on Mickey - Think about the Real Message" »

    June 07, 2004

    Support Digital Promise legislation for digitization projects

    A number of School for Scanning participants asked me for updates on the Digital Promise project. This is a proposal by Newton Minow and Larry Grossman to earmark a part of the billions of dollars from public spectrum auctions for a Digital Opportunity Investment Trust, or "DO IT." The money would go to schools, universities, libraries and museums for digitization and related projects to reach outside their walls to millions of people in the U.S. and throughout the world. It would support research and development of new educational models and prototypes, and is modelled in spirit after great American educational innovations of previous centuries such as the GI Bill of 1944 and the Land Grant Colleges Act of 1862 that helped transform the nation's economy and strengthen its democracy.

    Read more about it and ask your senators and representatives to support legislation by Christopher Dodd (D-CT), Senator Olympia Snowe (R-ME) and Senator Dick Durbin (D-IL) and by Rep. Edward J. Markey (D-MA).

    Last spring, Congress passed FY 2003 Appropriations Bill directing $750,000 to the Digital Opportunity Investment Trust. The funds will be allocated through the Federation of American Scientists to be used to develop a detailed proposal for DOIT.

    June 06, 2004

    School for Scanning copyright presentation

    Here are the slides for my School for Scanning presentation on digitization projects in the U.S. and legal issues. I'll leave them up through July 31st.

    May 16, 2004

    Deanna Marcum on digital projects and the copyright conundrum

    Before you read further, let me point out that Peter's post on Adrienne Muir and her new article "The Right to Preserve: The Rights Issues of Digital Preservation" somehow got buried under my posts and you may want to read about it.

    Since you're here, you may want to read about a recent talk given by Deanna B. Marcum, The DODL, the NDIIPP, and the Copyright Conundrum, The Fiesole Collection Development Retreat Series, March 18-20, 2004. Marcum is Associate Librarian for Library Services at the Library of Congress and past president of Council on Library and Information Resources. She offers a seasoned look at the competing interests of publishers and libraries, focusing on common interests and model projects in the realm of digital preservation.

    My favorite quote:

    As some members of this audience already are probably feeling, it is unfair of me to continue as if publishers are the bad guys in all this, the greedy graspers of exclusionary privilege. But to paraphrase a famous observation, I have looked at the copyright holders, and they are us.

    She urges publishers and librarians to build on the search for mutual understanding, saying librarians and publishers share many goals and face similar problems.

    Continue reading "Deanna Marcum on digital projects and the copyright conundrum" »

    May 14, 2004

    More on Library Digital Preservation

    In addition to the Alicia Ryan piece on digital preservation cited by Mary, there is another recent publication on rights issues in digital preservation. Catherine Ayre and Adrienne Muir recently published "The Right to Preserve: The Rights Issues of Digital Preservation." It is in the March issue of D-Lib Magazine, at <http://www.dlib.org/dlib/march04/ayre/03ayre.html>.

    Ayre and Muir led a British study to investigate legal issues in digital preservation. They surveyed English stakeholders about their activities, and also surveyed practice in other countries. My quick take is that they feel that the legal questions have been complicated because there is no agreement on who should be responsible for preservation. Without first determining who has a legal mandate to preserve, it is hard to know what legal rights they need.

    May 12, 2004

    Alicia Ryan's proposal for library digital preservation

    New law review note by Alicia Ryan, Contract, Copyright and the Future of Digital Preservation, Volume 10, Issue 1 of the Boston Univ. School of Law's Journal of Science and Technology (Winter 2004) proposes three library/archive rights to be carved out of a copyright owner's existing rights under contract and copyright law:

    1. The right to copy and preserve the World Wide Web
    2. The right to copy and preserve other digital works that are found to be endangered
    3. The right to lend these works once they've been commercially unavailable for five years

    May 10, 2004

    More on Kahle v Ashcroft

    Free the Orphans: A Look at the Case of Kahle v. Ashcroft by Richard Koman -- Richard Koman examines the suit in Kahle v. Ashcroft, brought by the Internet Archive and the Prelinger Archives intending to free in-copyright, out-of-print media, known in some circles as "orphan works," from oblivion. Richard talks with lead attorney for the case, Chris Sprigman, where he discusses how this case takes an entirely different angle from the recent copyright term extension suit, Eldred.

    May 03, 2004

    You can help free old works from copyright - need your help identifying library collections

    Libraries and archive digitization projects can benefit greatly if a
    newly filed lawsuit succeeds. It could release into the public domain
    works published between 1964 and 1977 that did not have their
    copyrights renewed. See Kahle v Ashcroft

    What your library or archive can do to help

    Give examples of treasured collections in your library or archives that
    that have lots of works published during that time (Jan 1, 1964 -
    December 31, 1977) that you will not digitize or that you will not post
    online because of copyright. Focus only on works that are not likely
    to be commercially exploitable - not major publishing houses. Example:
    collection of inhouse church newsletters

    Please send responses to Eli Edwards, misseli (at) mac.com and
    indicate your name, institution, collection and how to follow up with
    you for more details.

    Many thanks,
    Eli Edwards, SLIS student -- SJSU
    Mary Minow, LibraryLaw.com (but don't reply to me, since Eli's - misseli (at) mac.com - compiling the replies- thanks)
    on behalf of Chris Sprigman, attorney litigating the case

    Continue reading "You can help free old works from copyright - need your help identifying library collections" »

    School for Scanning - Chicago, IL - June 2-4, 2004

    School for Scanning - Chicago, IL - June 2-4, 2004

    The deadline to register for this is May 7, 2004.

    I'm a speaker with Peter Hirtle on copyright and other legal issues in digitization projects. (Thank you, Melissa Smith Levine, for the gig!)

    April 30, 2004

    I recently updated my library digitization copyright table

    April 29, 2004


    Cross referencing here like a good librarian -- if you clicked on a blog topic, you might find more or related info at LibraryLaw.com