NUL Copyright

eBooks and search engines

It's been an interesting fall for discussions about electronic books, both born digital and books converted to digital through book scanning projects led by Google, the Open Content Alliance and others.

Of course, there is Kindle, Amazon's ebook reader, announced last week and already the subject of intense interest. Kindle uses a book format that supports Digital Rights Management (DRM), which is a sort of catch-all term for a technology that enforces usage rules attached by the book seller (or book publisher, depending on the individual title). Already there is some unhappy talk about the DRM'ed version of Kindle, and whether or not Kindle will eventually support un-DRM'ed PDF files, or other eBook file formats such as the .epub format, along with comparisons to another recently released electronic book device, the Sony Reader. Fuller reviews from Boing Boing Gadgets and The Washington Post and Gizmodo.

And debate about the legality and advisability of massive book scanning projects continues, with much of the criticism directed at Google [disclosure: Northwestern is a participant in the Google project through the CIC]. Back in September, Siva Vaidhyanathan gave an interview to First Monday about why the Google project is bad for libraries and bad for fair use. More recently, there was an article in the New York Times about libraries who have shunned advances from Google. And just this week, an interesting exchange between Frank Pasquale and James Grimmelman about whether the massive indexes being built through the various book scanning projects should be regulated in any way. Grimmelman's forthcoming essay, "Information Policy for the Library of Babel" (link is to a draft version on his site) offers a really fascinating exposition of his view that repeated scanning of the same books and the resulting competing massive search engines could be a very good thing for readers.

New copyright enforcement requirements for colleges and universities?

I subscribe to two wonderful services from Justia and WashingtonWatch: pick your case or your issue and you can subscribe to it via your favorite RSS reader. Now, whenever new documents are filed in the Google case or new legislation is introduced that amends Title 17 (that's the U.S. Copyright Law), I get an alert in Google Reader. Back in August, a copyright alert popped up about the higher education reauthorization act.

As our own Daily Northwestern reported today, this legislation, approved by the House as part of the "College Access and Opportunity Law," has a real zing to it. In addition to requiring that campuses develop and disclose copyright policies and annual activity related to its enforcement, the law requires colleges and universities to adopt technology-based deterrents to unauthorized file sharing. More information on the EDUCAUSE web site, including talking points and templates to be used in contacting congress.

Comparisons

In continuing to work on copyright-related writing assignments this month, I've been struck by some similarities between a couple of different problems. The first has to do with the very different reasons for building remarkably similar and potentially very vast repositories of digital content. The second is about interpretations of the third of the four fair use factors.

Third party repositories of digital content
A group of content companies released a (euphemistically- or idealistically-titled, depending on your outlook) set of "User Generated Content Principles" last month. The gist is that the content companies would like sites like YouTube to agree to implement filtering technologies to identify infringing content uploaded by users. To make this possible, the content companies will deposit digital copies of their content, and through some as-yet-unidentified technical whizbangery (hopefully something better than that old MediaSentry tool the RIAA has been using), it will be possible to tell who's using copyrighted content in their silly videos.

I think I'm just a little slow on the uptake but this sounds a lot like the giant databases of books that Amazon has been building, and that Google and OCA and others will be building through their massive scanning projects. They're being built for very different reasons, at least according to the partners, but in both cases you have enormous collections of stuff being pulled together in digital form and computed across. Since the Internet Archive is behind the OCA, it seems most likely that any public compute access to this datastore would happen there first. As the future of libraries becomes as much about helping the scholar use the computer as a real tool for analysis as about individual access to works in physical form, I find this evolution very interesting. I guess I could have predicted that every content company in the world would one day be motivated to put their backfiles into digital form so that they could sell them. That's the idea behind iTunes and the Amazon Inside the Book projects, after all. I'm really interested to see what other activities are enabled by this collaborative aggregation that we can't think of now. I heard Stephen Downie do a great talk last week about his Music Information Retrieval projects, and he talked about the fine line they walk to get databases of music to analyze (not to sell, not to play, not to mashup, just to analyze). From what I understand the MONK project has found the rights issues among their most daunting. It's too much to hope that a revision to copyright law will carve out a new "right of analysis" but wouldn't it be great if there were a clear court case that would find this a fair use? I don't think the Google case will do it, too many issues to deal with before that one, and I agree with those who say that case will probably never come to trial anyway.

Fair use factors: really? You think that's too much?
The third of the four factors discussed in section 107 of U.S. copyright law is the amount and substantiality of the work used. The conventional wisdom, though possibly not the actual evidence, says that the larger the portion you use, the less fair the use. As a soon-to-be-former video librarian, it's been very interesting to see how this clause, in particular, is interpreted by many to say that we can't reproduce whole video titles. Granted, discussions about copyright and moving images tend to be a very confusing morass of public performances, distributor licensing, preservation copying, the TEACH Act, and so on. But the horror of replicating a whole work really stands out. In contrast, it's much more common to find that a library's reserve guidelines will say that copying one article for one class is a fair use. Why? Why the difference? Even if it's in an issue along with many other articles, isn't the article itself a complete work, at least in the eyes of the author who wrote it? And so copying it in its entirety would tend to put one on the negative side of the factor?

I'm certainly not arguing for the strictly quantitative evaluation of the factor, in fact just the opposite. In educational use cases like this, I think the underlying reason for the use, and the likelihood of financial harm to the rightsholder, should be weighted much more heavily. And THEN, is the amount appropriate for that use? I'm a first and fourth factors gal, through and through.

And in both the massive digital repositories and reserve fair use context, the question of paying for these "new" rights always comes up. Want to compute across your digitized books? Sure, for a little fee (times number of students, times number of courses, times credit hours, times one-hundred...). Want to stream from your video collection? Sure, for a little fee (times every layer of rights, times every minute of video, times number of mirroring servers you own, times one-thousand...). Given how the marketplace has worked out up to now, and given how financially devastating the foray into electronic journals has been, there's plenty of reason to be wary of letting the rightsholder decide what reasonable fees should be. Electronic libraries should not exist only at the larger or wealthier institutions. If we don't want to advocate compulsory licensing, or, even more frightening, attempt copyright reform that could just as easily make the situation even worse, we should be more aggressive about exercising the rights we already have. And constantly reinterpret them as new types of content and new types of uses become possible.