“copy this blog” is moving!

For a variety of reasons, including an interesting interpretation of policy from elsewhere at the university, I’m going to be moving this blog. (The university thing isn’t related to me personally.) The new URL will be:
http://www.copythisblog.com/

I’ve migrated posts, comments, and my blogroll over already. I’ll be turning off comments on this blog, but the posts should remain for as long as I’m affiliated with the university (i.e., the foreseeable future).
I should be regularly posting more at the new site. ^_^

Fair Use in Scholarship

I’ve been involved in a few disturbing conversations the last couple of days.

Fair Use has a vital role in copyright law- it allows the use of copyrighted material without permission for what are essentially societal benefits. Criticism, scholarship, teaching and research are specifically mentioned in the text of the law as examples of the kinds of work that should be fair. Fair use is necessary for scholars.

I’m interested in a wide variety of subjects that don’t directly involve copyright- much like the field if Information, looking at copyright often involves looking at the areas that copyright touches, and much like the field of Information, those areas can be just about anything. So, for example, I look at how copyright affects the practices of libraries and archives, or K-12 education, or other subjects.

One of the things that got me interested in copyright in the first place were the practices of fans, because I am a fan and copyright seemed to bring up interesting and problematic questions for fan activities. In the anime fan world, for example, the practice of fansubbing- that is, groups of fan subtitling and distributing anime that hasn’t been released in the U.S.- used to be, and still is, relatively common. Anime club showings, where people get together and show anime, are also common. I have doubts that the anime industry would exist if these practices hadn’t occurred, but they certainly bring up copyright challenges. Anime itself has become a serious subject of study, and I’m on a few related mailing lists.

I recently gave a presentation about copyright to a group of archivists and educators from different universities in the U.S. One of the topics that came up was working with attorneys. At UT, we’re very fortunate to have strong copyright scholarship advocates like Georgia Harper. I know some other universities also have advocates in that area- Kevin Smith at Duke, for example. But one thing that really struck me from that meeting was that not all groups in other universities have that kind of support. A couple of people described how risk-averse their counsel is when it comes to copyright issues. That’s a problem. There’s too much going on in the world for fear to win those copyright arguments in education.

A related discussion popped up on one of the scholarly anime mailing lists I mentioned. One student working on a dissertation was told that he was required to get permission for every thumbnail or image he had intended to include in his work- well more than a hundred. A few people chimed in about how such a requirement seemed excessive, but many who contributed to that conversation said they had to work under that same restriction: “No permission, no dissertation, no graduation.” Some flat out said that they were told to just avoid such use altogether- don’t even plan on using images at all. If you had planned to, change your plans. Write about something else.

That’s terrible. Even when the law is likely on your side, your institutional situation can put you in a position where you’re not allowed to assert your rights and do the type of research that could contribute certain types of understanding. And when universities take this type of attitude and base their practice on this attitude, it affects the rights of scholars everywhere. Looking at actual practice is part of evaluating fair use. Making your practices so very restrictive is not only detrimental to your researchers, but to everyone doing research.

We, the scholarly community, need to be fair use advocates. We can’t let fear rule our decisions.

Political Signs at UT Dorms

President Powers has responded to the controversy:


The University’s rule prohibiting the display of signs in students’ residence hall room windows has been the subject of a great deal of discussion for the past few days. I am keenly aware that this prohibition is of intense concern to many members of the student body, as well as the larger community. I believe that the free expression of ideas is crucial to our educational mission, and that our rules should foster civil discourse and debate. I conclude, therefore, that this rule should be carefully reviewed with the participation of all constituencies in The University of Texas at Austin community, including students.

Effective immediately, I am suspending the prohibition on signs in individual students’ residence hall room windows and any sanctions related to its enforcement. The rule will be removed today from the Division of Housing and Food Service’s rules, and will be replaced with an interim regulation that expressly allows the display of signs and posters in students’ residence hall room windows.

Juan Gonzalez, Vice President for Student Affairs, has kept me well informed on this issue. I have asked him to convene a committee composed of all major constituencies to discuss all aspects of the policy on residence hall room signs and make recommendations on any changes that need to be made. The interim rule allowing signage in individual students’ residence hall room windows will remain in place until the committee issues its report and I act upon their recommendations.

William Powers, Jr.
President

Now I wonder if anyone will evaluate the “Free Speech Zones.”

Yeah, those “loss to piracy figures” are more or less made up.

Ars Technica is running a very informative story about the claims that various organizations and government agencies make about losses to piracy:

http://arstechnica.com/articles/culture/dodgy-digits-behind-the-war-on-piracy.ars

The ultimate conclusion is that the numbers are highly questionable, likely biased, and didn’t really deal with piracy in the first place.

The confusion is a result basically a 20 year “game of telephone” (yes… before P2P!), with all kinds of cross-citations obfuscating that the original numbers probably came from the publishers themselves.

Whether or not the selection of these particular numbers has been intentional (and selecting from the high end of a dubious estimate was likely intentional at least one time), this unexamined citation is certainly lending an undeserved air of authority and legitimacy to those numbers. For example, it sounds better if those numbers come “from the F.B.I.” or “from the U.S. Chamber of Commerce,” even if the monetary loss estimates were originally coming from self-reports of the industry itself. Furthermore, those numbers didn’t actually deal with “piracy.” For example, the estimates included revenue “lost” from countries with laws that weren’t as broad as ours! Those estimates, reportedly according to the initial author, “could admittedly be biased and self-serving.”

Of course, those aren’t the only numbers thrown around, but they are used quite a bit by a number of sources, including government agencies themselves and those responsible for passing the recent “PRO-IP” bill. (Meanwhile, the Orphan Works bill languishes…)

At any rate, we need better and more transparent research involving potential losses to infringement.

Harry Potter Lexicon Case decided

Judge blocks Harry Potter Encyclopedia on CNN.

I’m not particularly thrilled with the news. I can’t comment on the specifics of the case, since I don’t have access to the decision itself yet. I do think that this will have a chilling effect on similar endeavors. According to CNN, the judge said:

“While the lexicon, in its current state, is not a fair use of the Harry Potter works, reference works that share the lexicon’s purpose of aiding readers of literature generally should be encouraged rather than stifled.”

My guess is that this decision will pretty much the opposite effect. Even without the specific text of the case, the decision would seem to add to the risk of the authors and publishers of such texts. Such authors typically have less power/influence/money when compared to the resources that the established author and publishers have, and I’ll guess that publishers will be more averse to accepting such works. We’ll see. Call me skeptical, but I’m curious about the fair use evaluation and what “irreparable harm” Rowling would suffer from the publication of the Lexicon. And I am a fan, now a disappointed one.

Update: I have actually read the text of the case, and I don’t really think it changes the character of my earlier message. Yes, it’s a second circuit case and not binding all over the country, and yes, the facts are specific to this case, which is usually the situation. But you don’t have to convince the lawyers and judges that this case might not affect them- you have to convince the publishers and potential authors.

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Another RIAA Copyright Horror Story

I was approached by an undergraduate student last week. She had recently received a letter from the RIAA demanding that she pay them a settlement for infringement. They had the names of seven songs, the times when the songs were shared and an IP address associated with the sharing. The organization had apparently issued a subpoena to the University of Texas, as the settlement letter was able to specifically name her with information provided from the University that showed the IP address associated with her EID (UT’s electronic identification) at those times. Here’s the problem.

She didn’t share those files.

You see, she was never able to quite figure out how to connect her laptop- her only computer- to UT’s new restricted secure 802.1x wireless network while on campus. That is not unusual- I’ve provided tech support to several people about that very issue since the implementation of the network.

So, while on campus, she used other people’s laptops to log onto the wireless network. And she frequently left the computer while still being logged in to the network. It’s not difficult to forget to log out- you often have to actively clear the credentials from the computer, and the early automated installers that set up the network didn’t provide an easy way to do so.

If anything, she’s guilty of not following UT’s Acceptable Use Policy. Technically, other people were using her EID. The consequences for that, however, should be far different from the consequences for infringement.

She called the RIAA, and they weren’t interested in her story or any proof she might be able to provide. They told her to settle. She’s contacted UT’s Legal Services, but as the person who might have actually done the sharing is probably also their client, so they have a conflict of interest and couldn’t represent her. She’s contacted other attorneys and all the people that she could think of, but all the while the clock is ticking. She has 10 days. After that, the RIAA takes further action, and the costs go up.

At this point in time it looks like she might have to settle and pay thousands of dollars for infringement that she didn’t commit.

“I think filters are there mostly for teachers.”

On the one hand, I think it’s quite disturbing that children have to really learn about copyright now while they’re children- so much for unfettered creativity. On the other hand, I had the opportunity to talk to several middle schoolers participating in a community-sponsored film workshop series, and they seriously give me hope for the future. They asked great questions - “What about AMVs [Anime Music Videos]? In Japan, they have fan comics and people are okay with that, why can’t we do that here? What about fan fiction? What if you mix up songs? What about posting clips on YouTube? What about game reviews? Does giving credit matter?” ALL of them had read fan fiction. ALL of them were familiar with P2P technology. ALL of them decided to share their films with a Creative Commons attribution-non commercial license. ALL of them wanted to allow people to create derivative works- even if there was the risk they wouldn’t like what people did with it.

There was even one student following the Harry Potter Lexicon case.

The other funny thing happened as we were going to find a computer with Internet access. One of the younger boys described in passing how he used a proxy server to bypass school filters in order to get to MySpace at school. Most of the students seemed to know of a few ways to get to the sites that they wanted to visit. Referring to the filters, one of the girls confided,
“I think they’re there mostly for the teachers.”

Library Game Nights & Copyright

GamePolitics is asking whether game nights at churches and libraries violate copyright:
http://www.gamepolitics.com/2008/06/02/do-library-amp-church-game-nights-violate-eula

Interesting discussion. Should there be licensing for that type of activity? I don’t know- I’d worry that game publishers would try to treat it as a revenue stream in such a manner unavailable to other types of media. But those EULAs… If there was simple, easy to get, and inexpensive manner to go about getting those types of permission (and I’m talking on a library budget, here)…
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Censorship of Media; Copyright and Video Games

I came across two articles today that aren’t explicitly connected to one another, but are certainly evocative of similar issues.

The first is from CNN: The Pictures that Horrified America.
The article discusses the big push to censor comic book publishing in America, because critics alleged that these materials were corrupting the youth of the day. It certainly directly affected the industry, which took many years to recover.

I’m reminded of a trend we notice in copyright and technology: The New is Scary.
Phonographs? Evil. Cable? Evil. VCRs? Evil. MP3s? Evil. Etc., etc. The emergence of “disruptive” technologies shakes up the status quo, and the powers that be in the status quo respond fearfully- in the case of copyright, sometimes to save their existing power structures and business models. In the case of media, it’s generally to save society (or “the children”).

So video games are the new comic books. Or rock and roll. Or film. Or television. Or television show. Or cable. Or book. We’ve seen the same types of arguments used, the same types of language used, and the same types of “reform” proposed. We’ve seen many, many attempts at the passage of state legislation- that have been found unconstitutional.

The role of research in these arguments- copyright and media alike- is an important subject that needs to be addressed.

Moving on, Law of the Game is a great blog to learn about video game related legal issues. The author, Mark Methenitis, communicates clearly to a wide audience. In his most recent column for gaming weblog Joystiq, he provides a solid introduction to how video games and copyright interact. Because the subject is copyright, naturally there’s a lot more to it- but it’s a great starting place.

There is an occasionally acknowledged tension between copyright and free speech. One thing that makes video games different from other types of entertainment media is that they are generally interactive experiences that require the mediation of technology. Video games themselves are directly attacked as a new media in the manner I mentioned above- that is, there are clear free speech concerns dealing with the publication and expression in games themselves and those that seek to stop such expression for whatever reason. In the copyright realm, though, it’s the end-users who are most affected by law and policy.

Like other forms of software, video games begin their digital lives as digital objects, making them subject to some of the strictest areas of copyright law, such as the DMCA- which prohibits what might otherwise be fair uses. All digital technologies have to deal with those issues to a large extent- particularly when it comes to the preservation of older technologies- but video games are particularly difficult to deal with because of their interactivity. It is difficult to preserve interactivity, and one of the more obvious ways- copying- has a big hurdle to jump in existing copyright law.

Recent actions by the publishers themselves haven’t made this preservation any easier. DRM is both illegal to circumvent- even with what would ordinarily be legal uses- and provides significant technical barriers exacerbated by the commercial lifespan of a game. For example, it’s been announced that console hit Mass Effect is going to have a- well, silly- amount of DRM in its PC release in the form of software that requires one to be connected to a network in order to check the validity of your copy every 10 days or so. Of course, that means the game itself is only playable while those servers are supported. We’ve seen problems in this approach with music or video services that are ended- for example, when Microsoft ended MSN Music, MLB’s changing of access mechanisms, or Google ending Google Video’s purchasing programs. Furthermore, a person is restricted to installing the game on three computers (shades of Apple’s authorized iTunes computers…). This isn’t particularly friendly to end users, and it’s a sure way to destroy the longevity of your work. If I want to play Planescape: Torment now- nearly 10 years after it was originally released- I can. I won’t be able to say the same thing about Mass Effect. That is to say, I wouldn’t have been able to say the same thing had I purchased it- which now, I’m not going to. I’ve got a limited amount of money to spend on entertainment, and I don’t particularly feel like spending it on something I can never return to.

There’s a new Orphan Works Bill in Town

As always, there’s good news and bad news.

There’s an immense amount of erroneous information about the new orphan works bill, primarily from certain people who are worried about their livelihoods. I don’t at all begrudge someone being concerned about their livelihoods. There are definitely some legitimate concerns about the course such a bill could take. I do begrudge hyperbole and poor analysis and the spreading of such information without any attempt at verification. I’m also not entirely happy with some interpretations of copyright law I’ve seen that misconstrue the purpose of copyright and that are flat-out wrong about how existing copyright law works, especially in the international context. That’s more understandable though, since it’s confusing. :P

It’s not all bad, though. Although the blog world seems to have a lot of the negative talk, there are actually some civil discussions going on from and amongst these same groups.

The bill isn’t intended to be anti-artist. It’s not part of a scheme by the corporate overloads to make more money. It’s not about the government attempting to censor artists. It’s not “a license to steal.” It doesn’t reinstate registration requirement for artists. I find it fascinating that people are making all kinds of allegations about the bill when they haven’t read any version of the proposal- they’re pretty much responding to the initial messages and articles that were sent out by certain individuals and groups.

All I’m really asking is that you read the text of the bill yourself when you have the opportunity, make legitimate criticisms public, and if you think the bill isn’t satisfactory, attempt to come to a solution of the orphan works problem. Because the orphan works problem is not getting any better. That’s actually something a lot of people agree on, artists, educators, librarians, etc. alike. Reading the bills is rarely fun, but if you’re going to share an opinion, please make it an informed one. :P

You can find pdfs of the current round of Orphan Works legislation at Public Knowledge.

Orphan works are a problem. To quote Georgia Harper-

Orphan works are one of the biggest challenges we face today. These are works that are destined never to see the light of digital day unless we find a way to get them online while making reasonable efforts to protect the interests of their owners. The time when obscurity was the only option for non-economically viable works is over. We need to find ways to get on with it.

For a decent introduction to some of the issues, check out the U.S. Copyright Office’s page on orphan works. Most creative works in existence are orphan works. They’re not the ones that are making people’s livelihoods. They’re the ones people are concerned about.

Part of the issue about history, and the preservation and conservation that is necessary to maintain the cultural record. It is very, very difficult for archives, libraries, and museums to preserve certain types of materials in a usable form- particularly when they’re dealing with digital works. The proposed law provides such institutions with some protections for using orphan works. And guess what? People who work at libraries, archives, and museums are not out to destroy art or artists. Far from it.

Part of the issue is about education. We deal with these orphaned materials on a daily basis at the iSchool, and we’re heavily constrained in what we can do with them. Other departments face similar issues, although I suspect the impact on us is a bit stronger because of digitization curriculum. I might be wrong there, though.

In the text at least one version of the bill, users of orphan works also have to register their intent to use such orphan works, and also mark the use in a way that identifies the work as used as an orphan work. Furthermore, people cannot simply find an unmarked image and declare that worked orphaned. Additionally, people do have to make a reasonable search in order to use the work at all. In the case where the creator is found, there are provisions for the creator to receive payment. And woe betide the person who acts in bad faith (whom are what most of those who are maligning the bill are worried about). We all worry about bad actors.

There are burdens all around, but it’s a start.

Yet more reasons to respect Neil Gaiman

http://journal.neilgaiman.com/2008/04/fair-use-and-other-things.html

Neil Gaiman comments on the Rowling Lexicon case, fair use, and the nature of creation. Plus, he’s heavily involved with the Comic Book Defense Fund.

Lots of emails from people asking me to comment on the JK Rowling/ Steve Vander Ark copyright case. My main reaction is, having read as much as I can about it, given the copyright grey zone it seems to exist in, is a “Well, if it was me, I’d probably be flattered”, but that obviously isn’t how J.K. Rowling feels. I can’t imagine myself trying to stop any of the unauthorised books that have come out about me or about things I’ve created over the years, and where possible I’ve tried to help, and even when I haven’t liked them I’ve shrugged and let it go.

He follows up here:
http://journal.neilgaiman.com/2008/04/few-final-copyright-thoughts-before-we.html

and he makes a lot of great points.

Section 108 Study Group Report Released

http://www.section108.gov/docs/Sec108StudyGroupReport.pdf

At 212 pages, it’s not going to be a quick read. Let’s see what happens to copyright and libraries, archives, and museums…

More on the Turnitin Suit, and Blizzard going after Glider

As usual, William Patry as some very insightful things to say regarding anything going on in the copyright world.
http://williampatry.blogspot.com/2008/03/turn-it-in-and-kiss-it-goodbye.html

He mentions a few of the problems that I have with Turnitin. I don’t like requiring students to turn over their work in that manner, I despise heavily one-sided End User License Agreements, and I don’t like assuming that my students are cheaters- even when we have found some that do cheat… at any rate, it’s one of those situations where I’m not particularly sympathetic to the party I think probably should win in the copyright arena. The judge found that Turnitin’s use was fair, and I think that’s a good thing for copyright and society, even though I think it’s a bad thing for the students. (I’m also not happy with the resulting reinforcement of EULAs.)

A similar situation is in Blizzard’s case against the creators of a bot (automated) program (Glider) in their World of Warcraft game.
http://gamepolitics.com/2008/03/24/blizzard-bot-program-creator-file-new-motions-against-each-other/

Once again, I’m not very sympathetic to the creators of the bot program, but I am very much opposed to Blizzard’s legal arguments. They’re attempting to use the bypassing of their Warden (anti-cheating) software as a violation of their EULA (which it very well could be) and by extension a violation of copyright (as circumventing a technological protection measure… ugh). They’re probably using copyright because that’s where the law has very strong protections and very harsh punishments, which speaks poorly for them and the law, in my opinion… At any rate, while I don’t condone cheating even in games, I am much more troubled by the implications of Blizzard’s actions. (Yes, people debate whether or not the use of the bot is cheating, and I tend to lean towards the idea that it probably is cheating.)

Turnitin Lawsuit

The results of this lawsuit are quite interesting!
http://arstechnica.com/news.ars/post/20080326-plagiarism-screener-gets-passing-grade-in-copyright-lawsuit.html
The district court in Virginia found that Turnitin’s use was transformative and legal under the fair use doctrine and covered by the End User License Agreement. It also looks at issues of creativity, non-monetary incentives for creativity (ie, grades), and duress.

My blogroll has vanished under mysterious circumstances, so I’ll be updating it again soon.

Fantasy Author Fanfiction

I just found this interesting… Steven Brust is an established fantasy author, and from what I’ve heard from those who have encountered him a genuinely nice person. I own a number of his books. His was one of the very first author Web sites I found on the Internet in the early days, and he even responded to an email I’d sent. ^_-

Joss Whedon created a really, really excellent sci-fi series called Firefly (as well as the full-length feature film that followed it, Serenity). Brust wrote a Firefly fan novel- because… well, he just had to. He licensed it under a Creative Commons license. The discussion on Boing Boing brings up all kinds of interesting questions about derivative works, acts of sharing, and acts of creation.
http://www.boingboing.net/2008/02/18/steven-brusts-unauth.html