Next Great Copyright Act Conference, libraries

Reforms Affecting Schools, Libraries, Archives, and Museums

Moderator: Tom Hemnes, GTC Law Group LLP & Affiliates

Ruth Okediji, University of Minnesota Law School

Schools don’t play a central role in the last Copyright Act; the next shouldn’t take the same piecemeal/dismissive approach.  Schools and students are changing, and digital tech is a big part of that.  In the current Act, there are disconnected pieces—face to face teaching, TEACH Act (miserable failure), disability provisions, fair use.  Often schools don’t have enough resources/knowledge to use all the pieces.  Act takes a passive view of schools and static view of education, but schools are adapting and adopting new tech all the time, and we should be worried if they don’t.

The purpose of copyright: promoting learning. Other state preambles mentioned education. 

Do we really want to regulate how students learn and how teachers teach in a rights-based approach?  Ecosystem of license processes—no standard rates to fall back on. Educational institutions become overly cautious, and underfunded institutions can’t compete. Little incentive for publishers to negotiate with educational institutions.  Need for translations; much of student body doesn’t speak English, but translation right is in the way.  Teachers’ uncertainty interferes with access and use of digital content.

All this when skills in working with digital content are increasingly important as educational goals.

If fair use is just about transformation, that may not be helpful for schools; Congress does not want to look under the hood of that particular question. It’s not the lack of exceptions that is a problem, but we don’t have exceptions that work or serve our needs. Exceptions thicket: where does face to face teaching apply? where does the TEACH Act apply? Where does fair use apply?  Our three tiered approach has no sense of how each kind of exception should interact.

Safe harbor solutions; open licensing solutions; but broader implications in need of solution. Richer schools may overpay for access and use. Underresourced: won’t access/use works.  Teaching and learning should be frictionless for ordinary educational use; fair use should only be at the margins; Copyright Office guidelines may have a role to play; need a reform with no discrimination between schools—rich, poor, art, film, karate. Structure of Act could be improved: everything dealing with education, not just educational uses, should be one place.  A blanket exception for schools and teachers as schools and teachers is her dream.  Students are a different story.  But if radio can be exempt, then schools can also be exempt.

Ivy Anderson, California Digital Library

Transformation of library collections in the digital age.  Three overarching themes: urgency of digital imperative; need to operate at scale; and how well fair use has served libraries.

Largest libraries hold billions of works; many are still in copyright, and many rare volumes are orphans. Libraries spend $4-5 billion in content purchases/year. Over half of library users buy books by authors they first discovered in a library—the industry’s best advertisers.  $50 billion that ARL members have spent on research material since 1923, equivalent amount in staff/operational costs—and they hold less than half of the 2.8 billion items held by libraries.  $200 billion in stewardship investment at stake in the digital transition.

Can libraries self-regulate? They can and they do. Preservation planning. Sound recording preservation is just one instance of larger preservation challenge. 

Three digital adjustments: preservation, access, and service reconfiguration.

Large scale digitization allows us to preemptively safeguard collections from manmade and natural disasters—Tulane lost 3 million items in the aftermath of Katrina. At UC these aren’t idle concerns; we’re seismically unstable.  Concerns about collections are very real, so we embrace mass digitization—nearly four million volumes from our collections.

Supporting use of digital collections is no less an imperative as students and researchers seek more online access and researchers use data analysis.  If it isn’t online, it doesn’t exist—not just a catchphrase. If we fail, much of the history of human endeavor will go into the dustbin.

In the US we’ve used fair use to move collections online. Four factors are remarkably trustworthy. Frontera collection at UCLA: largest repository of Mexican and Mexican-American vernacular performances.  Rare and fragile recordings, gathered accessbility, allowing wide ranging research in Mexican/Mexican-American culture. But this is exactly the kind of content that we can’t collect today as it’s produced.  Never received a takedown, only thanks (small excerpts available streaming online, full in the library).  Other California collections: Calisphere—for use K-12 and for the public.  Never received a takedown request from a copyright owner, one for privacy concerns.

Also great role of smaller public libraries/cultural heritage organizations in preservation. §108 study group considered whether only large libraries should be eligible, but small ones have unique collections and can stimulate civic activism. Law shouldn’t dictate who gets to do preservation; profession can develop appropriate preservation practices and law shouldn’t dictate those practices.

Archiving the web is increasingly common despite lack of clear exception.  One archive has adopted §108 study group recommendations (clear labels, no public access, offer opt-out).

Collectively we hold more than 1 billion books and journals, and many are running out of space as circulation is declining. Work to reduce physical footprint; groups of libraries are sharing storage and consolidating collections. This goes hand in hand with digitization—books are more findable due to full text indexing of digitized copies. Obscurity isn’t in authors’ interests or readers’. HathiTrust is an important part of making this possible.

Rather than placing backward-looking tax on old books with no active commercial market, scarce library resources are better spent on new authors.  Many of these copies are even properly thought of as replacement copies, given deaccessioning going on. New restriction on digital uses mimicking access restrictions on physical books would be a far better solution.

In the meantime, a HathiTrust project is helping open up works—Copyright Review Management System.  Researches copyright status of books published between 1923 and 1967.  55% are not renewed. A few notable things: beyond that percentage, the project was only possible because of formalities and the existence of a registry; and only possible due to prior digitization, which made a distributed online workflow possible and couldn’t have been done across physical books over 100s of libraries.  Involved hundreds of hours and still only touched 3% of the HathiTrust corpus. Metadata is available online. More cooperation with rightsholders there is desirable.

Also, copyright should prevail over contract, so we don’t have to keep fighting over licenses.

David Hansen, University of North Carolina Library

Many institutions and individuals responded to Copyright Office inquiry on orphan works.  Report carefully collected the many perspectives. Problem: uncertainty even if there is no one who will actually claim the work; fear of large damages.  Productive and beneficial uses forestalled, to no benefit of any author or rightsholder. 

Digitization example: Thomas E. Watson collection—politician of late 19^th/early 20^th century. Typical special collection—books, speech drafts, letters, all thrown into one bucket (library collections may not follow copyright categories because they’re about a subject).  Tracking down owners: over 8000 documents in the letter subset.  After 80 hours of work, identified 3304 individual names as authors; of those, 2671 were presumably still in copyright.  That investigation took 4 ½ months.  They ultimately found 4 authors w/dependable contact info (you could have spotted these w/o investigation): William Randolph Hearst and 3 other prominent figures; all but Hearst granted permission, and Hearst didn’t respond—its contact info was “send a letter care of the San Francisco Chronicle.” 

They felt comfortable relying on fair use once they’d done this level of investigation. But copyright isn’t always the primary obstacle.  Watson wrote some spicier texts even in public; his personal correspondence could be even more exposed.  Privacy is a question.

Other libraries are gaining comfort with fair use too. Orphan Works best practices in development to document what libraries and archives should do. Jennifer Urban’s great article on using fair use for orphan works.  More comfort with relying on fair use since 2006; the fear of copyright liability has diminished at least for libraries and archives, and best practices initiative further helps them. There remain a category of uses where users aren’t as comfortable with fair use, and some remedy limitations along the lines of the Office’s proposal might be appropriate. But we always wonder whether legislation will make things worse rather than better.

Maureen Whalen, Getty Trust

Museums don’t spend as much as educators but we spend a lot on education. Many museums are free/donation supported.

In the trenches: orphan works exemption would be useful. We don’t believe any type of work should be excluded (e.g., photos or unpublished works). Safe harbor for nonprofits. We will do due diligence and record metadata and make rights info available to the public. 

Need improvement in the public display right to allow us to display video art—the current rule allows only display of one image at a time. But video art doesn’t work like that. In exhibitions it’s treated like sculpture but in law it’s treated like film.  Exhibit/display should be permitted despite public performance language—only limited to video art, similar to definitions in VARA, limited-edition works (not feature films).  Would that harm incentives?  No; museums would feel more comfortable collecting video art if they weren’t facing concerns about how they could display it/having to negotiate complicated contracts for each piece.

Q: as a practical matter, aren’t damages limited in orphan works cases?  Attys taking cases wouldn’t think that damages would be high. That should be part of risk analysis.

Hansen: that’s a big factor; most library collections don’t face statutory damages as part of the equation because most works are unregistered and also libraries are pretty protected.

Mike Carroll: Push back on schools as institutions and more on educational uses writ large.  What about the teacher exception/works for hire? Multibillion dollar system runs on the assumption that teachers can transfer copyright but maybe they can’t. Should the next act clarify?

Okediji: struggles with that; isn’t sure wants to rock that boat. But academic authors do need to think about how much we’re giving away and how we want to walk the talk. Legislative position might lead to unwanted consequences.

Peter Jaszi: Inspiring call to action, but difficulties in achievability. Just at the moment educators recognizes the need, the content community sees the opportunity for an educational market.  There is value in interim solutions to the big problems Okediji describes.  Code of Best Practices in Fair Use for Media Literacy Education as a small solution—makes differences in daily practice in that area by relaxing inherent conservatism of educational institutions.  Another area of conservatism has been embrace of open textbooks as interim solution. What could we do in the near term to encourage this movement?

Okediji: Scale is an issue—if only 5-10 schools are involved, then other schools are nervous about being early adopters.

Georgetown Library: What Hath Google Wrought? The Escalating Legal Conflicts Over Old Books

Jonathan Band

Discussed ongoing Hathi Trust litigation concerning library copies produced as part of Google’s book scanning project. Hathi Trust (with repositories at Michigan/Indiana) has about 10 million volumes, Google scans as well as library digitization projects. What can the Trust do with these volumes now that there’s no settlement? Access for the visually impaired, possibly; preservation. Potential orphan works project: let one user check out a copy at a time if their library had contributed the book to the database. Complaint targets not the orphan works project but the entire project.

Corynne McSherry, EFF

Sovereign immunity is a big barrier. Can sue state officers, ordinarily with the same effect.

Standing: default principle in copyright is that you can only enforce the rights that you have, not other people’s rights. Authors Guild sued on their own behalf and there were some individual authors. Even suing on behalf of the membership, not that many books are by AG members. Did manage to find one author to join the lawsuit whose works were previously considered orphan works. Does this lawsuit create a lot of leverage? Procedural difficulties. Potential laches defense.

What is the lawsuit over? The scanning (because the delivery of information about what words are on what pages from the corpus is just facts). The Hathi Trust’s fair use argument is good. Copying the entire work is ok if you need it for your purpose, which here is to create a corpus. Limited access to researchers and students aids in the positive purpose. As for the orphan works project, the market harm argument is quite interesting. There’s a policy argument that there can be no market harm and allowing people to find the work can enable identification of authors, as with the one guy who joined the Authors Guild case. An opt-out aids the fairness argument as well. Authors will say that it’s all about licensing.

Allan Adler, Association of American Publishers: because of love/hate relationship between authors and publishers, will be discreet in commenting on legal theories of AG case and why publishers aren’t participating in the case; note that he is under nondisclosure agreement with respect to Google settlement discussions which are ongoing. Applauds attention to old books renewed by digital environment. Google was unwilling to talk with the publishers about copyright; Google had billions of dollars and wasn’t willing to change its interpretation of fair use. Lawsuit = way to get Google’s attention in a serious way, as is often the case.

AG case against Hathi Trust—not the same. Hathi was perfectly willing to talk to the publishers about what was being done with the digital collections, including the Google scans. Because we saw the beginnings of a dialogue that’s continued, there was no rush to sue in order to get their attention.

Books are not dying, they’re transitioning to other formats and means of creation.

Users, even in consortia, are not the ones who should be making decisions about when to use an orphan work without the author’s permission. This is a job for Congress. Van Gogh never sold a work in his lifetime; it’s possible that works that went out of print because it wasn’t worth investing further in them may now find a market. Authors & publishers should be given the first shot at trying to see whether those works have value in the new world.

[He’s very good.]

Kevin Smith, Scholarly Communications Officer at Duke University: Licensing schemes to solve orphan works—what might they look like? His guess is that the AG suit is a way to make sure we don’t have a practical illustration of a way to exploit orphan works in a noncommercial way without licensing.

What would it mean for Congress to solve the problem? Virtually every country has used a licensing scheme; the alternative proposed and failed in the US in 2008 would have limited damages. If we’re talking about a solution that might make money for powerful groups, then don’t laugh at the possibility of Congressional action.

A licensing scheme inevitably gives someone who is not the rightsholder a right to sell a license. Canada has a licensing scheme. Good article about it. Only for published works; no formal standards for a diligent search, but informal standards evaluate the type of work and the use proposed—look like fair use factors. Licenses always require payment. Usually the CRO is to hold the money for 5 years, after which that money reverts to the general funds of the CRO. 60% of applications wanted a single work, but a handful of licenses were granted for large numbers. Extended collective licensing. (We’d have to have a cultural policy to do this, wouldn’t we? In the other countries, the funds are generally supposed to go to cultural development; hard to imagine we’d do that here unless we equated cultural development with “giving large sums to a private owners’ organization,” which I certainly won’t put off the table.)

No matter how low the cost is set, it inevitably discourages beneficial uses of obscure works. These are exactly the works that somebody needs, but often only one or two people. Who should administer this license? Unlikely to be a gov’t body in the US. Could a CRO like the CCC serve as an honest broker? (Hisses from the audience of librarians.)

How would orphan works schemes relate to other user rights, particularly fair use? Would the board make a fair use determination before determining whether or not a license was appropriate? What about the other exceptions in the copyright law?

Adler: doesn’t believe that fair use can justify an entire system/process/set of procedures for determining what works are orphans and when one can go ahead and what the consequences should be if a copyright owner emerges. In an individual case, of course, fair use would still be a valid defense if in fact a copyright owner emerged. His argument: what the University of Michigan seemed to be doing was saying that the entire orphan works project is fair use based and that goes too far.

Smith: yet Michigan hasn’t made one orphan work available to one student. The lawsuit is based on asserted risk.

Adler: but we do know their intent—designation of a work as an orphan work was declaration of intent such that if a copyright owner didn’t protest within 90 days they could use the work. McSherry says the use would be limited to students and researchers, but that’s insufficient. If it’s an orphan work, you should be able to make it available to others, as long as that’s done pursuant to law with procedures in place.

Smith: but in the absence of orphan works law, we think that a more limited solution comports with fair use.

Band: Adler says you can’t use fair use as a systemic solution to a problem. That’s wrong; courts have applied fair use to business models. Search engines. iParadigms and its plagiarism detection software. The Betamax.

Adler: the search engine cases shouldn’t have relied on fair use but on implied consent. Google respects opt-outs. And you can’t cite a case that precedes the digital era as relevant. That was 5-4 anyway. (As the late, great Judge Becker said about panels, though, 2 is more than 1.)

McSherry: two underlying problems—the copyright term and statutory damages. Congress has done more to create this problem than it’s ever done to solve it. Fair use looks better in San Francisco.

Adler: takes a (well-deserved) whack at the SCt’s sovereign immunity jurisprudence, which is misguided and distorts the possible responses to use of materials by a public entity that knows it’s not subject to statutory damages.

McSherry: but copyright liability is divorced from any actual harm, and that’s part of the problem. Fair use is a backwards way to think about actual harm, but that’s only because we started from this premise that copies generate liability. Downstream uses—filmmakers, documentarians, etc. who want to get this stuff out there still have to worry. Sad and ironic that as tech progresses we’re shutting those mechanisms down.

Smith: one of the reasons that there’s a conflict between publishers and universities is that copyright works so badly for academic authors. Editors and academic authors don’t make money; academics don’t benefit from the copyright system as it stands. They may benefit from control, but not money.

Q: what about a threshold trigger—if you get a certain number of downloads then there should be payment. If authors are worried about potential markets, why not wait and see if that potential materialize?

Smith: thinks a licensing board could do something like that. Zero license for a certain period, then reconsideration if changes occur.

Band: Windfall profit scheme might work. Instead of fearing the possibility, let’s keep costs down up front and if unfairness develops find a way to compensate that person. Even in the Hathi Trust framework, that unfairness can’t develop because it can only circulate within the community. If a book is suddenly in demand even though it hadn’t been checked out in 10 years, then you could treat that differently. It is so unlikely/rare, so we shouldn’t prevent uses on the grounds that the situation might development.

McSherry: 99% v. 1%.

Adler: Orphan works is a misnomer. We’re really talking about orphan uses. The one thing that’s clear is that no one believes we should designate a work as an orphan for all uses. Rights are inevitably divided. We’re talking about a particular use that doesn’t fall within an exemption; that may be orphan because you can’t find the person who can give permission for that use.

Q: Authors Guild defense. Won’t trust Google to treat their works fairly. If one of these things goes forward, benevolent/nonbenevolent, commercial/noncommercial, authors should be at the table, like a union, participating in the structure. AG doesn’t speak for all authors, but does demand a place in the conversation. Maybe they didn’t do it right, but they did it—somebody powerful is coming to the table even though I don’t have the power, money or time to do it myself.

Band: Authors were invited to the table; publishers took up Hathi’s offer and AG didn’t.

AALL: We Don’t Need Copyright to Put an Article on Our Network, Do We?

Steven Melamut, UNC-Chapel Hill Law Library: 1960s, libraries began to acquire photocopiers: brought out a great change in reserve policies. Professors would get back their photocopies at the end of a term; nobody kept records or checked to make sure it was the same photocopy (as opposed to what a student had made). There were guidelines that circulated, but they were very restrictive and not well known or followed.

Fair use: §107 specifically mentions “multiple copies for classroom use,” but it’s not clear whether that applies to reserves—students use them for classroom use. Fair use factors: it’s important to start with a copy you own, not an ILL copy. Market effect is also important: how difficult would it be to get a license? OTOH, if the material is out of print/the owner is difficult to find, you’re reasonably safe. Spontaneous one-time use is also reasonably safe. Commercial use/entertainment is not as easy to defend.

Course pack cases: clearly need permissions. But the Kinko’s and Princeton v. Michigan Document Servs. case were both against for-profit institutions. At the same time, Princeton presumed that there was an entitlement to fees.

E-reserves: began as homegrown system; people didn’t bother to password-protect, and if Google had existed they would have been out in the clear. Publishers feared that no one would ever buy the paper materials again. But for libraries, it was great: get out of the painful photocopy and file folder business. Remote access: students didn’t have to physically come to the library. Clear that we now need to restrict access, but unclear to what degree: limits to university sufficient, or does it have to be limited to class? Can you do it by class number, or do you have to limit it to individual student IDs?

One example: first-year med students are all required to take the same class, rotating through in five sections. If you buy permissions, are you buying it for the whole class, or do you have to buy it five times? Are you responsible if one student decides to download the material and put it up on his own website?

CONFU guidelines, 1996, tried to come up with e-reserves guidelines; came to a stalemate. Probably a good statement: they’re probably fairer than most others, but not official. ALA has a statement on e-reserves: says you should maintain fair use. Important caveat: most online materials are governed by licenses, not copyright, and licenses always trump copyright. If we are diligent about negotiating, we can write in a statement allowing use in e-reserves through content management systems. In the sciences, some licenses are coming out with that written in, but you have to look at the licenses. And keep in mind: some materials are governed by different laws: photographs/slides; music—go to the music library associations for guidelines; video—you are dealing with the DMCA and face DRM issues.

Ass’n of American Publishers has threatened litigation against Cornell, others. Came back with joint guidelines. Equated e-reserves and content management systems with coursepacks, so required permissions, but acknowledged the existence of fair use. Hofstra, Marquette, Syracuse also adopted policies under litigation threat—all private schools, not public.

Georgia State: sued in 2008 regarding electronic coursepacks, course management systems, electronic reserves. Feb. 2009: Georgia State changed policy.

CCC: claim to be a convenient means of getting permission. But extremely expensive, and didn’t cover all materials UNC uses. Even counting the person whose job it is to get permissions, it was cheaper for UNC to continue getting permission itself. Also CCC charges for things that are fair use, at least the first time they’re used.

Publishers want to protect permission income, and want permission for electronic use; libraries want to protect rights under copyright—if you don’t use fair use rights, they’ll disappear, and our budgets don’t allow us to be cavalier about paying for permission; and then faculty want to distribute the materials and feel that any educational use is fair use. You don’t know for sure what fair use is until after you’ve used the material, been sued, and gone to court. Fair use policies are determined by risk aversion.

Advice: when you’re already paying for access, putting links to Westlaw etc. is a good idea. But also use fair use so you don’t lose fair use. Tell students not to repost materials. Keep password restrictions. Remember e-reserves and fair use when negotiating contracts. At the end of the semester, terminate access.

Publishers think there’s no difference between e-reserves and course management software; the difference is library v. faculty control. He hears that faculty are not sending e-reserves in, but using course management software to post.

Kevin Smith, Scholarly Communications Office, Duke: he deals with copyright in relation to faculty and graduate students at Duke.

CMS allow faculty to create links or to upload readings and other content directly. Many readings are now offered through CMS, as well as video, music, and slides. Potential for many copyright issues due to lack of awareness, or self-help—faculty may not be happy with library’s rules. This can create liability for individual faculty members and the institution. It’s an issue of attitude.

Four responses: (1) all educational uses are fair use; (2) reserve policies are too restrictive; (3) I wrote it--it’s mine; (4) the perfectly logical one: if I can show it in class, I can show it on Blackboard. There is a sense in which the rules for transmissions were meant to mirror the classroom experience, but it’s not as simple as that would have you believe. Different rules regarding the amount of audiovisual material.

Georga State: Duke was also threatened in 2007. Three publishers challenged the use of e-reserves and course management systems. Publishers are asking for injunction, not damages. Georgia State argued that its new policy made prior acts irrelevant and sought a protective order from the court. They got the protective order: the amount of material already revealed in discovery regarding older practices was already sufficient to make the argument that the new policy isn’t all that different from the old. The new policy is quite assertive about fair use. A policy that was 100 pages long is now about 8. Partly because they now recognize that in the current situation their faculty have to understand at least the basics of fair use. In the past the library has taken care of this stuff, but CMS has changed the landscape.

So, institutional decisions: how much do you try to explain the four factors? How much do you apply it to specific uses or tech? Do you give a checklist (fair use checklist making the rounds)? Do you specifically mention spontaneity/single-time use? What kind of assistance do you offer? Recommend linking to licensed databases; offer help. These are decisions about how aggressive an institution wants to be about fair use.

Fair use checklist: He thinks it’s a bad document, creating the impression that fair use is mechanical. But fair use isn’t that way, and the checklist also very easy to manipulate. Note that a version appears on the CCC website. And he also thinks it’s virtually a required document, because decisions about what goes into a CMS is being made by RAs or administrative staff—nonattorneys, nonexperts. They have to make quick decisions about a huge pile of stuff. They desperately need help, and the checklist, for all its faults, helps them make a reasoned decision. And the value of a reasoned decision for a nonprofit higher education decision is that it provides a real benefit in a fair use analysis--§504(c)(2), which limits remedies, remitting statutory damages, for a wrong but good-faith fair use decision. Real reduction of risk!

How can the library help?

First, offer assistance creating links to licensing content: not necessarily obvious to faculty, who may not know about journal availability, URL persistence, and authentication for offcampus logins. Remind faculty that they may not own their own materials, and that they shouldn’t sign such agreements in the future! Provide a central service for CMS evaluation—let the library help even when CMS is used. We can make folks aware that we can help with decisions. At Duke, we try to encourage use of e-reserves because we have mechanisms in place to make a fair use decision and buy permissions when necessary.

CCC: First possibility, individual licenses. Not clear whether faculty will do this work. Second, Annual Campus License: covers e-reserves, coursepacks, faculty CMS, but not ILL. Not all publishers using CCC participate in the annual campus license, meaning that transactional permissions are still needed.

Music and video: implicates fair use, the TEACH Act, and the DMCA. Faculty ask to stream video through a course site and save class time. TEACH Act applies to distance education and to hybrid courses. Transmissions have to be an integral part of a class that is a regular part of systematic, mediated instruction. Less flexible than face-to-face exception, but most classes meet that requirement.

Big issue: portions. Can transmit all of a non-dramatic musical or literal performance. (All of a symphony, but not all of an opera.) Reasonable and limited portions of films or dramatic musical/literary performances. Real stumbling block (note interaction with DMCA: how is one to get that portion to show a relevant film clip?) Displays comparable to face-to-face teaching—which is probably anything you’d really want to do.

Other TEACH Act requirements (no litigation yet): restricted access; notice to users, copyright policy and educational efforts; reasonable TPMs to prevent student retention or downstream copying—his suggestions: streaming music or video; possibly thumbnail or low-resolution images; possibly disabled right-click to make it harder for students to download—might strengthen the fair use argument regarding e-reserves.

Fair use is more flexible than the TEACH Act, but the TEACH Act probably allows larger portions; fair use probably doesn’t allow you to use a whole film in most cases. Note that anti-circumvention still applies. Analog can be converted to digital for TEACH purposes. Permission can be difficult to obtain, though SWANK is beginning to license streaming films through CMS (it’s rather expensive).

Is there a point at which we need to stop thinking of film as “extra” to classes and start thinking of it as central? If the faculty member thinks the film is central to the class, sometimes the answer might be that the students should buy the film just like they buy the book.

Linda Gray, Nellson Mullins Riley & Scarborough, LLP

Fair use in the private law library. Attorneys want information so fast, coming out of law school where materials have been immediately available; they do not think about copyright issues. A partner is not going to spend time downloading an ANSI standard onto his desktop for use; it’s not practical. If the librarian got a digital copy, the attorney wants the digital copy sent to him/her, regardless of whether the purchase authorized presence on multiple computers. Observation: librarians have gotten more concerned about copyright compliance over the course of her career.

Special issues for private law librarians: Their use will likely be considered commercial, even if it’s only intermediate, following the Texaco case. Puts us in a bad situation, as the AALL guidelines warn.

Gray said, wrongly, that printing out a purchased digital copy licensed for one hard drive only and scanning it for an attorney’s use was circumvention. (I think she may have meant that it was an infringement, which is a much better argument, but she was talking about the DMCA.)

Very dangerous to sent out tables of contents and solicit attorneys to ask for copies of what they want, unless you have an agreement with the publisher—you can send out the tables of contents, just don’t do more than that.

To keep ourselves safe, we need to make sure we’re making only a legitimate number of copies and retaining copyright notice. She also copies the copyright agreement that comes with an article and sends that along with the article itself to the attorney who requested it.

CCC: Is expensive, and not comprehensive. Has heard that one publisher tries to write its licensing agreement with clients such that they can’t use the CCC, even though that publisher gets royalties from the CCC; that’s wrong.

Very few private firms have staff to get permissions. Not an option for most of us.

Google Books: Equal access to knowledge

The Institute of Intellectual Property and Social Justice at Howard University School of Law and Google

Equalizing Access to Knowledge

Keynote Address: David Drummond, Senior Vice President, Corporate Development and Chief Legal Officer, Google Inc.

Many underserved communities exist in America: minority groups, people with visual impairments, smaller educational institutions—historically black colleges have endowments 1/3 average. Education spending and outcomes are disproportionate for black and Hispanic students; visually impaired don’t have access to the same textbooks as other students. We are an unprecedented opportunity to increase access for everybody. Remove physical obstacles to acquiring knowledge; level the playing field.

Google’s founders worked on a digital library project at Stanford; always wanted to bring libraries into the digital world. When he showed up to work at Google, they told him they wanted to digitize the world’s books; he was a bit daunted. They figured out the logistical/technical challenges, and they felt they could navigate the fair use challenges.

Google Book Search: search across books like you search across the internet. We’ve scanned 10 million books and are just getting started. We have books in most of the languages Google is in; work directly with publishers. 1.5 million are public domain books. Old but valuable. The Library Project: a couple partner libraries include in-copyright books: scanned and indexed, but only show snippet. About 20% of books in these libraries are public domain, 75% out of print, and 5% in-copyright and in-print.

Settlement (for a big collection of settlement-related documents, check out James Grimmelmann’s Public Index): Allows collective license from rightsholders. Better than snippet view, plus free access for US libraries, plus new revenue stream reviving the commercial market for rightsholders. This settlement will also unlock millions of titles for the visually impaired, allowing text-to-speech and other techniques by libraries.

Panel Discussion:

Lateef Mtima, Howard Law: IP and social justice issues intertwine. Constitution starts with a social utility purpose: promoting progress. This is accomplished with rights to authors and rights to the public. Tech has pushed us to focus on the social utility of the exclusive rights, given the potential of new uses. Recall that the spread of player pianos and then record players increased access to music past those who’d been able to afford actual pianos and trained piano players before. So we need to link the digital divide with the purposes of the copyright law.

Wade Henderson, Leadership Conference on Civil Rights (LCCR: Voting rights and education were at the core of the civil rights movement. The last frontier: access to quality education and elimination of poverty. Education is the great equalizer. Thus he celebrates the Google settlement. People mired in poverty don’t have access to information, and we won’t get constitutional change targeting public education in his lifetime. Until we restructure education, we won’t succeed; this project is part of democratizing knowledge to create equality for people where they live today.

Civil rights 2.0: take this information and put it into a broader regime of support—this is a tool, not an answer. Incredibly valuable tool, though.

Charles Brown, Esq., Advisor to the President of the National Federation of the Blind: Incredibly excited by the settlement: the promise of approaching a level of equal access to information that has only been dreamed of a generation ago. Equality of opportunity has been a key theme among the blind. Settlement will change the playing field forever for blind people and others with print disabilities; much of the structure is embodied in the settlement. We hope it gets approved.

As with any revolution, this doesn’t occur in a vacuum. By using screen readers and other access tech, the blind can largely get our hands on digitized text material, but we’re too often artificially blocked from doing so. Incredibly frustrating to encounter an ebook seller that will allow us to buy a digitized book and then block digital speech. We recognize and support IP rights. They must be allowed to profit from creativity. As blind citizens, we must also be allowed to enjoy our property rights. Too often, tech features are available only visually, such as through only poorly constructed websites and visual touchscreens. The law requires equal access, but the concept is lacking in actual practice, forcing us into costly litigation—and institutions, including universities, into costly retrofitting. It’s cheaper to build accessibility into the design than to squeeze it in later. Blind citizens will not allow themselves to be thought of as a squeezed-in afterthought. Google and cooperating libraries are taking the right approach.

Brent Wilkes, League of United Latin American Citizens: LULAC has historically been involved in education—created the predecessor to Head Start. Google Book Search will provide equal access to all Americans who have internet access to books that only elite universities used to have. Especially important to underserved communities who have had difficulty getting access to relevant content, content in other languages, etc. Community colleges: about half of all Latino college students go to community college. Forecast: increasing numbers of Latino students; we can’t sustain high high school dropout rates. The Google project provides some equalization of the educational experience. Scanning UT-Austin’s Benson Latin American collection: most students can’t do that, but that content is very relevant to the Latin experience in the US, which isn’t very well documented elsewhere. Eva Longoria can trace her family back 10 generations; lived on the same land grant under 5 different flags; but her history was never readily accessible—Google may help this. Also scanning Spanish works in Spanish universities, in the US and Latin America. Those books aren’t in B. Dalton or even major libraries. A great equalizer for students learning English who need inspiration in their native language.

LULAC has created 53 tech centers across the US for students—students can do their homework. We value any tool helping students with research projects, homework, college application—but LULAC is not a library, doesn’t have a book collection. Google Book Search will help students a lot, making the community tech center more useful as a model.

We are also privacy advocates, and believe it’s important that Google pay attention to privacy issues. We don’t want to see tracking based on reading habits.

Rhea Ballard-Thrower, Howard Law Library: Some believe that Book Search is the death of the book and the end of the world. She believes that the project makes the book better. The laws of library science: books should be used, every reader should have a book, every book should have a reader, it should be easy to access books, and libraries are changing and dynamic. These principles still apply here. We used to be trained to protect books from people.

Now we can protect the originals, but still give access to the content. Scanning satisfies the “books should be used” principle. Historically only the rich had access to the most books; the idea that a student can read the same book whether in an expensive private school or an underfunded public school is amazing. What about “every book should have a reader”? There are some books out there only appreciated by the author and his mother. But search means if you’re that third person, you can find it. Ease of access: libraries now IM people and do everything they can to enable access—ease increases knowledge.

As for change: this is where librarians are sensitive. People sit at home instead of going to the library, and librarians get nervous: will anyone come see us? But there are three essential parts to the library: the collection, the users, and the staff. And they are all always changing. The collection has changed a bunch. Our users have totally changed—general literacy is a change, historically; users now come in with their own abilities to locate information. What made libraries important was not being repositories—a warehouse is not a library. The people who provide the service are key, regardless of whether it’s face-to-face or via IM. Especially with snippets, people will be directed to the library via Worldcat.

Q from Steve Jamar: there is a privacy issue. Also, how much access will there really be given the dedicated terminal issue? Are people really going to leave their homes/offices to use this?

Henderson: Access can’t adequately be achieved through a library system, no matter how good it is. Digital divide is one problem that needs to be addressed; won’t come through Book Search per se, but this will increase pressure to improve access. Google will have to address the issue, going beyond the initial concept.

Drummond: Access is more than terminals. Remember, 20% of the book is a lot; we also expect to have purchase models, including purchase of parts of a book. There’s also an institutional subscription piece: we can license the entirety of works to institutions. And our pricing provision requires us to take into account interests in getting market return along with interests in broad access, allowing our library partners to hold our feet to the fire. We haven’t built the product yet; trying to get the settlement approved—we’re listening to lots of folks.

Wilkes: Most minority communities have only 30-40% broadband access; more relevant content should spur more demand for access. We are also concerned about privacy—going to a library or tech center can wipe out your trackability. And we encourage Google and others to anonymize information.

Brown: Aside from terminals, we want to get computers into everyone’s hands. Schools and classrooms need to be wired. This is a public policy choice: government needs to do it. Then the school has to provide speech/screen enlargement software. But Google isn’t on the hook for doing that. Internet accessibility should be seen as a public utility.

Let’s not go so crazy regulating Google that they can’t make money. The blind would like to have this product, and we are willing to pay in situations where we are getting value—with Google, we know we’ll be able to use the thing.

Q re orphan works.

Drummond: There are some things being missed in the discussion. Orphan works are usually defined as works that might be in copyright but whose authors can’t be found. Those are not the same as the out-of-print works. In the settlement, for the first time in history, there’s going to be a concerted effort to go find the rightsholders of these materials—a financial incentive for people to come forward. With this new incentive, we think we’ll find that a lot of works aren’t really orphaned. There are some, say pictures, where there’s no attribution and you don’t know where to start; books have an author, a publisher, usually a city—a lot of places to start. We believe the vast majority of books will be claimed over time. Many are likely to be in the public domain as well because of the renewal requirement, and we know that many owners didn’t renew, up to the early 60s. We’re spending a lot of money on a comprehensive family reunification program for books. The Book Rights Registry can license out all claimed books on any terms.

Q from someone working on a digital library of congressional black history for the Congressional Black Caucus: Say more about the terminal v. subscription.

Drummond: there will be both—we think most university and research libraries, and even public libraries, will want to subscribe. On top of that, we’ll provide a free terminal for walk-ins. 20,000 libraries will have the right to do this. (Free access to the product, but not free computer and not free internet access.) Drummond was on a NYPL panel yesterday and there was a lot of talk about how one terminal isn’t enough for a big library, but he cautions that the terminal is free. If they find that there’s way too much demand, or if libraries can’t afford the computers, we can rethink solutions.

Q: There are communities where libraries have closed; they don’t have access at all.

Drummond: we can think about expanding the program to community organizations. We can’t have a free terminal everywhere or else there’s no money in it.

Mtima: Other scholars make the same point: what are we going to do about the digital divide? Some of this should have been addressed earlier, and in different (non-Google) fora. Who is responsible for providing terminals? It would be great if Google rushed in. But others have social activist responsibility to make sure that other sectors of society don’t get off the hook.

Q: Library of Congress has 130 million items. Does Google have a goal to put that amount online?

Drummond: We’d like to digitize them all, and not just in the US. It will take a long time, and we won’t be the only ones doing it.

Q re subscription: will price be set by institution size?

Drummond: based on ways other electronic databases are priced: the number members of university community, etc.

Q: How are non-author, non-publisher interests represented in the settlement (libraries, nonprofits)?

Drummond: library partners have been very important in structuring the settlement. Libraries provide the books; had to revise existing agreements with libraries to settle.

Brown: We were represented!

Q re pricing: for nonsubscription users, will there be a set price range? Will it depend on popularity?

Drummond: Rightsholder has option to set price. Some don’t want to charge anything; some want to charge a premium. Or Google can set the price algorithmically, based on popularity, length, genre, etc. Bands of pricing--$3 up to $29 are the ranges, with median likely to be $6-7.

Victoria Espinel: A lot of concerns about access to IP content, but also concerns about access to IP ownership, particularly for minority communities which are vastly underrepresented. Look at patents: less than 3% owned by minorities. Federal research funding: under 2% goes to historically black colleges/universities with high Hispanic enrollment. Disadvantage to minority communities and to the US as a whole. If access is driver of next generation of creativity, the settlement can be a big step forward, but that’s only one part of a bigger issue of ensuring that all communities have the opportunity to participate equally in the economy.

Wilkes: Google may help minority authors get published; don’t need a physical publisher if you can sell on Google Books. We plan to create lists of recommended books, and link to places to buy or find the books.

Marc Rotenberg: Very interested in privacy as a means of social justice. NAACP v. Alabama protected privacy of membership records in order to protect political association. Many Muslims today are very concerned about access to their library records.

My Q: So are institutions third-party beneficiaries of the settlement, given that the settlement requires attention to access in setting prices?

Drummond: No, but we expect our library partners to be really good advocates for access; they’re passionate about it. (For the record, I find this answer persuasive.)

My other Q (this is not how I asked it, but how I’m trying to think about it): Prodded by my earlier misunderstanding of Google’s plans, I’m really curious about the effect of removing images from big chunks of the corpus. We’re moving to a more visual society, and the stuff that people will be getting from Book Search will be in a significant way much less useful, much less alive, than the physical copies. (Which is not to say that the physical copies are accessible, but that the project may not fully do what it claims. The work you get from Google is not the book.) So how level is that playing field?

Drummond: When you claim a book, you get to say whether or not you own the illustrations. (I must have overlooked this part when I was claiming rights for my grandfather’s books; the interface is not up to Google’s usability standards at present.) If you don’t, they’re not going to be searchable, which is the way Google Books works already now. We are interested in making images more available. For certain books, like children’s books, illustrations are so important that we have special provisions for them.

Brown: Our tech people are working on ways to deal with charts and graphs; we have a library we’d like to preserve, too, so the issue of images is salient to us.

Ballard-Thrower: It’s far from perfect. We have a large archive of African-American works, and right now if you don’t come here you’ll never see it—pictures of black lawyers from the 1860s. The beauty of this project is the partnership. There may be difficulties, but the bigger picture is the wealth of information that right now you need an airplane to see.

Mtima: Legally, Google can only get permission from copyright owners; if the publisher doesn’t own the photo, there’s nothing Google can do. (Yeah, except that that’s exactly what Google does do with respect to, say, image search on the web—it defaults to copying and relies on fair use and opt-out. So for Google to say that it is still defending fair use because it has to rely on fair use to scan the photos, as Macgillivray did in his talk, and then to exclude images from the corpus available to users, is a little disingenuous. And it contributes to the rhetoric of a permission society, as Mtima’s statement illustrates. There is something Google can do; it’s called asserting fair use rights, and everyone is aware that the problems of finding rightsholders/the orphan works problems are greater with respect to visuals, making the fair use argument more compelling even given the settlement with authors & publishers.) Don’t let other IP owners off the hook—Congressional activism is important. (Here we agree.)

There was some further discussion of the need for copyright owners to get paid and the relative uncertainty in the relevant communities about the scope of copyright law.

My other thought: I was struck by the power of the point, made by Siva Vaidhyanathan and others before, that Google is essentially being asked/volunteering to take on the role that should be played by government provision of services. In a privatized age, Google offers too many goodies to ignore. But shouldn’t that trouble us?

AALL: my panel

I too spoke at the AALL, though to a much smaller audience, in a program called Beyond Copyright? How License Agreeements and Digital Rights Management Pose Challenges to Fair Use and the Provision of Electronic or Media Services

Ryan Overdorf, U Toledo law library: manages media services unit.

A couple of case studies: One vendor agreement said the product couldn’t be used on any open computers (computers that didn’t require a login/password). He wanted to scatter research machines through the library. The vendor OK’d it, but only with a written description of how he was going to monitor product use. Years pass; vendor wants to sell a more expensive purchase. Library agreed, on the condition that use was allowed on all campus computers. Done by oral modification.

Notes: tried to analyze actual use of the database; little or no evidence of use. Not only is the vendor limited by ability to pay, but also by client need. The risk of a database is that if you run out of money, every part is gone forever, not like cancelling a subscription. If the database went away tomorrow, who would care? If the answer is “not many,” you have leverage.

Streaming video: it doesn’t always stream. Faculty ask Media Services to record for them to ensure usability in class. Streaming is used for various reasons—quicker download is one—but copyright owners also consider it a protection measure, involving DRM/DMCA, as well as terms of service. The YouTube ToS, for example, bars copying or download other than expressly permitted by the YT site.

His choice: don’t record streaming video for faculty; try to get it some other way. Not much faculty protest. But, media services doesn’t seek to police copyright generally. Faculty can do anything they want. Media services will contact rightsholders on behalf of faculty.

Balancing risks: Media services doesn’t worry about downloading free browser plugins even if a strict reading of the user agreement could preclude doing it institutionally (for multiple faculty members)—when the vendor doesn’t provide a mechanism for getting site licenses, if the vendors don’t care, then he doesn’t either. Likewise, if there are last-minute discoveries of policy violations, they don’t disrupt events, but do follow up with the relevant faculty member. Takeaway: in his experience, there exists reason to be concerned about copyright threats, but there are also practical constraints on what copyright owners can do.

My talk: I love my librarians, who are excellent at helping me add to the Georgetown IP Teaching Resources database even when I ask them to get me porn.

Fair use is now the background, almost completely obscured by the foreground of licensing and DRM unless libraries insist otherwise. I’ll talk about three things: saving streaming video, lending via the Kindle, and losing books from Google. Copyright, DRM, and licensing interact with all of them.

DRM interacts with licensing—content owners claim that the tech plus the terms of the contract constitute a “technological measure” so that if you, for example, give the password to a database to someone who isn’t entitled to have it, you’re circumventing a technological measure.

So far, courts have been sympathetic to this argument that the contract defines the scope of the technological measure—except, oddly enough, in that precise example: the valid but contractually misused password. There, they see it as not circumvention but ordinary use. It doesn’t circumvent a lock to open it using an actual key. Except of course that analogy is worthless in the digital environment: by definition a key that decrypts an encrypted file is the actual key. You can’t pick a digital lock, you can’t smash it. One of the big difficulties of the DMCA is that tech policy was made and is being interpreted by analogy.

I want to call your attention to the recent DMCA hearings on exemptions to the prohibition on individual or institutional circumvention of access controls. Of relevance to librarians who want to provide faculty and students with video that is reliable, that can be saved and potentially edited.

The Copyright Office really wanted to push screen capture software as a solution—the argument is that screen capture software works by saving screen output, after the technological measures to protect the content have been decrypted and the content has been legitimately accessed. Thus, the Office suggested, if you use screen capture software, there’s no circumvention at all in the situation Ryan discussed, where a faculty member wants to save streaming video.

A couple of things to note about that:

The content owners refused to concede that screen capture wasn’t circumvention.

One potential argument: terms of use say you can’t capture the content, and the terms of use plus the streaming together constitute a technological measure controlling access. When you violate the terms of use, you no longer have legitimate access to the work, so you’re engaging in circumvention. I think this is wrong, the Copyright Office seems to think this is wrong, but risk aversion is a factor in actual decisions.

Separately: what about those terms of service? What are the risks with respect to the contract?

Finally, worth noting that screen capture has significant technological weaknesses—though for streaming video where the image quality is already limited, may not be an insuperable barrier.

Next stage in DRM: taking the work back at the election of the service provider.

The Orwell problem: Relevance to libraries: experimental Kindle lending programs—a way to get more books to more users? When I wrote about this last, it was iPods—buy iPods, load books on them. No limit on number of devices you could have, though libraries tend to be conservative and “fair” about that.

Brigham Young suspended its trial program because it was unclear whether the terms of service allowed library uses of the Kindle—Amazon Customer Service has given vague but generally encouraging answers to library queries. Does customer service have authority to bind Amazon? Terms of service suggest that Kindle content shouldn’t be lent. What would happen if Amazon objected? Suddenly a big investment might become worthless.

Secret of contract law: there is no such thing as a well-written contract. And this uncertainty among libraries about lending Kindles has its echo in the Orwell problem.

Amazon’s terms of service provide that Kindle users get a permanent physical copy. But: even if the contract remains unchanged, as an implementation of Amazon’s promise not to do the same thing again in similar circumstances, it’s hard to see what remedy there is for consumers, who got a refund—the damage they suffered was not economic.

The damage is much more conceptual and much more worrisome: damage to the concept of a book as an artifact distinct from the abstract concept of a “work.” Google’s deputy general counsel claims that the Google settlement has “no Amazon Orwell problem”: you will never lose access to a book you bought or remove a book during the subscription period because of the license granted by the settlement. (That videocast is pretty interesting; Macgillivray is a very good advocate, especially nice on framing the “most favored nations” clause of the Google Books settlement.)

The claim that the Google settlement isn’t subject to the Orwell problem strikes me, however, as wrong in important ways.

First, there is a question about what would happen, either with Amazon or Google, after a successful copyright infringement suit. Historically, recall has been a rare remedy. But a large component of that is difficulty. The other components, which might be considered a vague agglomeration of privacy, property in individual copies, and speech interests in preserving existing books, are not well articulated in the case law and might seem less important once a court has concluded that a particular work is infringing.

So now we have a situation where it is possible for the technology to recall a work out of purchasers’ hands. Or hard drives. Every successful plaintiff will ask for this as a part of the remedy. Should it be granted? Well, the promises of an infringer to third parties—the contract—probably wouldn’t stand as much of a barrier; like an indemnification provision, the contract is the infringer’s problem, and the infringer could refund the money while taking back the book as Amazon has done.

Further favoring a recall, there may be ongoing infringement by individual book owners because of the technicalities of copyright law: merely possessing a physical book, even an infringing book, violates no right of the copyright owner. But if your book is digital, then you may be making new infringing copies—when you add a new device to your account, when you back up your hard drive, and so on.

One court has already required automatic updating of software on users’ computers in response to a finding of infringement. Playmedia v. AOL, 171 F.Supp.2d 1094 (CD Cal 2001). Playmedia sued AOL for including a version of the company's MP3 player in its software. The district court ordered AOL to remove Playmedia's software from its customers' computers through a "live update."

So, if someone were to win an infringement case against Google, the corpus might change overnight, in every library.

But, you may well be thinking, the Google settlement means that even authors who don’t know they have rights are covered, so Google won’t be infringing anyone’s rights.

Not so: Unregistered books, though probably a small and ignorable class. Not that easy to ignore: Photographs and other illustrations. Mostly publishers don’t have the authority to grant Google the right to use photos whose copyright is owned by someone else, even as part of a reproduction of the entire book.

[Important update: Alexander Macgillivray of Google informs me that I have misunderstood the plans for the access model: photos and other "noncovered material" will be scanned, but will not be provided to subscribers. So there's no chance of losing that material, because subscribers will never get it in the first place. So my injunctive relief hypothetical is extremely unlikely to materialize. However, it seems to me that the absence of images is a big deal for the value of the corpus. My guess is Google will have to do this image exclusion wholesale, unless publishers somehow--unlikely, especially with the orphan works--distinguish between images to which they have full rights and images to which they don't. And there are a lot of instance where they don't have full rights, or at least aren't confident enough to license them. Just look at how many Kindle books show up without pictures and, often enough without cover art--and these are relatively recent books! Anyway, I think the absence of images from the settlement is definitely worth talking about.]

Individual components of books like photos are not included in the settlement, and Google can still be sued—this is its argument for why the settlement doesn’t give it any reason to stop being a huge supporter of fair use; its argument in case the photographers sue is still going to be that it’s making a fair use.

The photographers did sue the CCC for licensing other people to copy articles that contained photos to which nobody in the licensing system had the copyright—a court in Massachusetts, improperly in my opinion, dismissed that claim on the ground that the photographers couldn’t prove their photos had been copied under a CCC license. I’m no fan of the CCC: I don’t think you can claim to create a market for licensing rights, promise to give people the rights they need to avoid infringing, and then instead of giving them rights just take their money because you don’t actually have all the rights.

But anyway: the photographers have reason to sue Google. It’s possible that at least some books could be found infringing, and out of the corpus they would go, [here's where I'm wrong] regardless of what the settlement says about the rights of publishers and authors.

This is a risk of the Google settlement that has, I think, been underdiscussed—of course there’s plenty of other aspects to talk about. But I think it’s useful to think about Google and the Kindle together—when the information is out there in the cloud, instead of copies controlled by individual libraries, the book becomes hostage to the work, that abstract concept.

The lesson of the case studies: we are increasingly asking people who know how stuff works to apply external frameworks of contract and law to the obvious capabilities of the tech; the limits we’re supposed to follow don’t correlate with the capabilities. Tech shouldn’t be its own justification, but the balance here has been skewed; we need further application of public policy and library principles.

Q: Why not tell faculty that if there’s any amount of money potentially at stake, tell them to get permission?

Overdorf: It comes down to conscience.

Me: I think that’s a really bad way to think about it. You’d never tell anyone to get permission for a book review or scholarly work, even if they’re quoting extensively. Asking for permission was a huge drag on the documentary filmmakers—expensive and often impossible. So they generated best practices, and now they can get insurance and rely on fair use. The CCC rose because of too much deference (aided by the courts) to the idea that if there could conceivably be money involved, then licensing was the right solution.

Q: What can we do as activists?

A: Discuss best practices openly; libraries seem to be unwilling to make public statements about fair use, even when they’re exercising it, which contributes to a climate of fear. And use the power of the purse: it’s obvious that cuts must be made, and one factor in which products have to go should be which are user-unfriendly. CC licenses explicitly preserve fair use rights; push towards that type of usability in negotiations.

American Association of Law Libraries Annual Meeting, Keynote

Jonathan Zittrain, Harvard

The future of the library (and how to stop it?). His image of the library: a fortress, protecting books against people who might mess them up. Today: a fallout shelter, a place you go to protect stuff against disaster—like emergency rations. Collections become archives. What percentage of a collection sees action over the course of a year? 5% says an audience member. 95% is just in case—you could have a Long Tail room.

But books may not remain the primary medium, though we still have to care for them. More and more reading rooms look like computer clusters, and in many libraries (not necessarily law), they’re redefining themselves as a place to go to get on the internet, which resonates with access to information. People are more online naturally anyway—students have their own laptops. He worries that the library is becoming a piggy bank: a source of income for publishers who previously had to tolerate the first sale doctrine. The AALL site has a wonderful little monograph about first sale.

A PC is a generative device: you can put programs of your choice on it. That’s not as true in the tech environment we’re moving towards. First, move to cloud computing: this practice actually has an early roost in the library, as more and more publishers make their content available in a client/server relationship and the library does not have its own copies. Google Book Search: doesn’t allow you to copy the text of a snippet—capacity defined by the vendor, not by you.

Second, a configuration as good as the cloud: the Kindle. In wireless contact with the Mothership Amazon at nearly all times. (I just discovered, incidentally, that if you only have Kindle for the iPhone, you can’t download the files to your computer for backup as you can when you have a physical Kindle. Curses!) Thus, the recent Orwell incident where Amazon withdrew paid-for books from customers’ Kindles (best post title on this: Amazon deletes your books, has always been at war with Eastasia). You haven’t infringed copyright by possessing this copy—it’s not independently infringing to have an infringing copy, though the vendor has infringed the distribution right. Assume the vendor asked you to destroy this infringing book—very few people, especially librarians, would do so. Because the Kindle is tethered, though, it can get rid of the book.

This is only the beginning of the story: defamation, obscenity/porn—there are many ways that a text can become contraband. What if government data is retroactively decreed sensitive? What if the government wants records of who’s looked at it? The protections for libraries are enshrined in law only in teeny tiny ways. DMCA §1201’s anticircumvention provisions say you can be sued for lockbreaking, except for a incredibly narrow exception applicable to libraries. Nobody in the audience, of course, had ever used this exception; this is an exception matched only in its ridiculousness by the performance rights exception in §110 for playing music at an annual horticultural fair.

So how do we value these items which are rarely used, kept for preservation, but are now being slipped into digital containers where library control is slipping? Turn to “library” as a verb. Library and librarians as sources of knowledge for other people: ask a librarian. But why ask a human when you can Ask Jeeves?

Huge progress in the past ten years: natural-language searching from Westlaw. But a little knowledge is a dangerous thing. People skip the Westlaw training and just put in their question. Creates a weird tension with patrons who walk in and start searching, without knowing anything about search strategy. This tension is only going to get more acute. So much work can be done by disembodied distributed human minds, whether highly compensated, like Innocentive, a company that looks for scientific solutions, or not. Zittrain discussed a distributed “call center” company that has people answer calls from home; Amazon’s Mechanical Turk—tiny rewards, but seductive. Reference can be disaggregated into little atoms. You’re solving a larger problem, but will you know the context or be just a cog in the machine? Spinbox: takes voicemail and turns it into text. Turns out that they simply had humans in an overseas call center transcribe the message.

What about library as adjective? Something that makes a thing more or less a library. “Core purpose”: the essence of an institution. What’s the core purpose of .edu? Protecting IP? Some universities think so. U Texas general counsel in 2001 suggested language for a professor to use at the outset of a class to control students’ use of notes and information learned in the class: “My lectures are protected by state common law and federal copyright law …” Efforts to influence kids in middle school to be favorable to IP protection—one recommendation is to have kids use © on their own coursework. Harvard says: students who sell lecture notes may be required to withdraw from the school. Is this what we want our educational instutions to be?

So, what is the core purpose of libraries? AALL has a mission/vision statement. Key terms: “central to society, fair and equitable, authentic, educate.” How well can these values stand in a new technological zone? What can we farm out to the world at large, to Yahoo! Answers etc.? Maybe not so much! When these are commercialized, there are obvious problems: people on Amazon’s Mechanical Turk are paid to write highly positive reviews for products on Amazon—not authentic and not fair. Spammers reward people for solving CAPTCHAs with porn. If there were a Nobel prize for evil, this would be a strong runner-up in the genius category.

The internet was built on noncommercial principles—sharing at its most basic. Every packet is its own adventure! It finds its way by sharing information. But that makes it vulnerable: one Pakistani ISP shut down YouTube by trying to censor it in Pakistan but doing it badly. This hijacking was corrected by voluntary organizations who gave instructions about reconfiguring the necessary routers. Bad news: your house is on fire and there’s no fire department. Good news: people will appear from nowhere, put out the fire, and disappear without payment or praise. This is a weird configuration that keeps the internet running. The Batsignal goes up and a nonofficial source comes and fixes your problem.

Wikipedia: an idea so profoundly inconceivable that even Jimmy Wales never had it—he wanted to write checks to smart people who’d write reference articles. Wiki: designed to be a place for editing, suggestions, preparation of articles for later expert review. But the wiki was the thing that worked. Now, wikis have their problems—but there are more people who visit the problem page and deal with reported problems than there are more reported problems. Wikipedia is 30 minutes away from disaster, but there are people always on duty against that. But what if there were a particularly compelling Star Trek convention one weekend? Do they leave someone behind to revert vandalism?

What this means: Wikipedia editors are responsible for things like protecting the real name of the Star Wars Kid, based on the consensus that his real name shouldn’t be in the article. Here’s a question: assume you received a link to the Star Wars Kid video, and thought it was funny enough to forward it to your friends. But then you get an authenticated message from the Star Wars Kid asking you to avoid further distribution because the video humiliates him. If your anonymity is protected, will you honor this request? Zittrain thinks that most people will limit distribution. What if Dick Cheney asked you not to disseminate a document because it threatens national security? You make an ethical decision on the merits, not based simply on the fact of the request.

Distributed monitoring of things like censorship: there is an untapped desire to be helpful, to be part of something. Hitchhiking may be dead, but the Craigslist rideshare board is thriving. Is the theory “killers don’t plan ahead”? Unlikely. “Hitchhiker” has unpleasant connotations, but now we have a new context. We’ll try to develop systems to make it keep working even if people try to manipulate it. Couchsurfing.org: one guy’s idea of pairing up people going far away who’d like to sleep on a stranger’s couch for free with people far away who’d like strangers to sleep on their couches for free. Over a million happy couchsurfers so far. A system of volunteer ambassadors.

The Wayback Machine: who hired Brewster Kahle to do this? Nobody! He hired himself, based on an idea: the internet is changing all the time, and someone ought to be taking snapshots. Suppose a library had wanted to do this. It would have gone to the General Counsel, who most likely would have flipped out over the copyright implications. This is a directly accessible corpus, opt-out instead of opt-in. Survives by virtue of how compelling a resource it is. Plus there is opt-out instantly; Zittrain believes that the archive doesn’t delete data but does make it inaccessible at request. Project Guttenberg: guy just starts organizing volunteers to type in public books.

The PACER petition: reasonable request for increased accessibility, produced by online organization. People should go sign this petition! If we don’t do it, dot-com will. Definitive information about a book shouldn’t be run by one single company. There is power of pooling research ability, and even in monopsony: the power of consumers to say that they are organizing and have agreed not to buy products with too much price discrimination or too many limits on what patrons can do.

Google Books: $100 million to scan. That’s not that much, compared to the bailout, right? What uses can be made of the “gold copies” that go back to contributing libraries? The settlement might shake out to allow libraries to make a public resource out of the library copies to counterbalance Google’s power.

Social component: most important help he’s gotten from a library has been face-to-face, someone who knows him and can call him out when he’s gotten something wrong. That relationship is most at risk when we turn our libraries into pneumatic tubes—queries go in, answers come out.

Problems: resource constraints. Risk aversion: worsened by the sense of stewardship—don’t want to risk preservation goals. The perfect should not be the enemy of the good. People are carefully working on perfecting metadata while some teenager invents a thing called del.icio.us and everyone else starts using it.

Q: In China, other values are being pushed in providing services. How do we think about that?

A: Wolfram Alpha: a positivist theory of knowledge; only wants data from curated sources. But what happens when someone asks “what’s the name of that island?” and the answer China wants is X Province while the answer everyone else gives is Taiwan? Are there two answers the search engine should provide, one in China and one elsewhere?

Q: Zittrain has said that the best stuff happens without profit or praise. Are those bad things?

A: No. Profit finds its own energy; we don’t have to worry about that other than to keep it in balance so it doesn’t crowd out or get rid of fairness and other values. He’s also interested in ways of giving praise/attribution wars. There may be plenty who don’t care about recognition, but he doesn’t consider recognition toxic. (Hmm, stated like that I’m now worried about recognition!)