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I’m at the Managing Electronic Records Conference in Chicago, again volunteering as a student. I’m tired, but it’s been a good experience. One interesting thing to note is that it looks like the commercial and legal communities are going to be paying more attention to authenticity in the digital environment.

Peter Hirtle has a post up at Library Law about the recent actions of public.resource.org. To make a long story short, the group took the photos that they believe are in the public domain, ignored Smithsonian’s notices that they controlled the images, and are making them available to the public. Hirtle is a known proponent of open access to public domain works and has commented on archival issues with copyrighted material in the past (also linked from his post), and although he is somewhat sympathetic to the group’s arguments he thinks they crossed the line. I’m not so certain that what they did was illegal in all circumstances- I’ve read the policy, but I think that the idea that merely stating “By doing X you agree to Y” is just as ridiculous as anything else out there- but Hirtle also points out that we don’t know if all of those works are actually in the public domain. At any rate, the whole terms of use, EULA, and other contract and licensing restrictions in a digital world are in bad need of evaluation and possible reform, in my humble opinion.

Later I’ll try to write more about some of the problems archives and museums, in particular, face with this type of attempted control.

Wired is reporting that Google Book Search is providing a link to WorldCat, to find the book at your local library. As Jessamyn at librarian.net once noted, WorldCat isn’t perfect, but it’s a good project that OCLC seems to be committed to improving. It will be interesting to see if this helps people find materials.

Interesting. Stanford is instituting a reconnection fee for students who have had their network connections disconnected as a result of receiving a DMCA notice. If after 48 hours a student has not responded to a notice, Stanford will disconnect the student from the network.

A few things to note.

-The letter ends with a similar fallacy to NYU’s: “File-sharing copyrighted content without permission is against the law…” I’d request they be more precise. File-sharing copyrighted content without permission might be illegal depending on the circumstances. The file-sharing they are attempting to address very likely is against the law. But they’re more accurate with a following line: “Downloading content illegally through the Stanford network is not an acceptable option.” That is, saying “All file-sharing of copyrighted content without permission is illegal” is quite possibly incorrect, and “Using the network for illegal purposes is unacceptable” is much more palatable. Don’t assume that students don’t know or care about the distinction.

-A DMCA complaint does not necessarily mean that the law has been broken. Their message and policy does not address that in any way. Yes, dealing with the DMCA is a hassle. Yes, in many cases on a university campus, the DMCA complaint is legitimate. But that’s not always the case. The policy does not address exceptions, for first or subsequent complaints (which have harsher penalties). The receiver of the complaint is guilty if they don’t respond within 48 hours. Unless they’re not. But they’ll still have to pay for the hassle that the copyright holder causes the university. I’d also request they take that into account.

Stanford doesn’t have all of the protections that public universities have, and their copyright policies tend to reflect that.

Reuters has reported that the 9th Circuit has ruled that Google is allowed to make thumbnails of Perfect 10’s images. The lower court’s ruling was affirmed in part, reversed in part, and remanded.

“We conclude that the significantly transformative nature of Google’s search engine, particularly in light of its public benefit, outweighs Google’s superseding and commercial uses of the thumbnails in this case,” the judge wrote.

The courts have overturned the injunction placed on Google. The text of the decision covers many interesting areas. Although the court considered fair use an affirmative defense,

…a party seeking a preliminary injunction in the copyright context bears the burden of showing its likely success in overcoming a fair use defense is consistent with decisions of the Federal Circuit purporting to apply Ninth Circuit law. See Atari Games Corp. v. Nintendo of Am. Inc., 975 F.2d 832, 837 (Fed. Cir. 1992)

The courts also stated that linking does not infringe on the copyright holder’s right to display, although they note that

Google may facilitate the user’s access to infringing images. However, such assistance raises only contributory liability issues, see Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 929-30 (2005), Napster, 239 F.3d at 1019, and does not constitute direct infringement of the copyright owner’s display right.

The same held true for Google’s cache- Google only copied the text with links, not Perfect 10’s images, and so was not infringing on the display or distribution rights. The court also looks at users’ cache copies:

The copying function performed automatically by a user’s computer to assist in accessing the Internet is a transformative use. Moreover, as noted by the district court, a cache copies no more than is necessary to assist the user in Internet use. It is designed to enhance an individual’s computer use, not to supersede the copyright holders’ exploitation of their works.

Not everything in the decision will please Google- although the court determined that Google was not vicariously liable for infringement, the remanded potion of the case seems to be based on whether or not Google has contributory liability, and has specified guides to determine whether or not they are liable.

… Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10’s copyrighted works, and failed to take such steps.

The courts will also need to consider whether Google’s liability is limited under Title II of the DMCA.

Update: Alfred Yen shares some thoughts on the case at madisonian.net.

C. Petite of Scriveners Error reported yesterday that the Ninth Circuit has declined to rehear Kahle v. Gonzales en banc. (Kahle v. Gonzales is the case the challenges the constitutionality of changing the copyright system from an opt-in system to an opt-out system.) I disagree with Petite a little bit; I don’t believe that fair use as it exists adequately addresses First Amendment concerns. (Of course, he stated that the First Amendment problem is a settled matter of law, which is really not the same thing.) At any rate, I think Seth Finkelstein was correct in his response on Lessig’s blog when the case was first decided: the court views procedural aspects of copyright as Congress’s bailiwick, and thus treats Kahle like the Eldred case.

Science Fiction and Fantasy Writers of America have released the 2007 Nebula Awards (seen on BoingBoing and Scriveners Error). Again, lots of my interests have converged, especially being an SF/F fan all of my life.

First, Hayao Miyazaki, Cindy Davis Hewitt, and Donald H. Hewitt screenplay adaptation of Diana Wynne Jones’ Howl’s Moving Castle won best script. Miyazaki, of course, is the head of Studio Ghibli, and is one of Japan’s most respected directors. Studio Ghibli and Miyazaki brought us movies such as Our Neighbor Totoro, Laputa: Castle in the Sky, Kiki’s Delivery Service, Princess Mononoke, and Spirited Away as well as many others, all of which are worth watching. Howl’s Moving Castle was a beautiful and enjoyable film. The script got a bit muddled in the end, and the themes diverged quite a bit from the teen book it’s based on, but it was still an enjoyable movie. We bought the DVD as soon as it was released in the US.

James Patrick Kelly’s Burn received the award for Best Novella. Burn was available as a Creative Commons License podcast, and Kelly freely made .doc, .rtf, .pdf, and .li (Microsoft Reader) copies of the work available from his website.

Jessamyn West of librarian.net created a video of installing Ubuntu (the Linux distribution) on a couple of library computers, and it’s been sweeping the net. I had seen it on her blog first, then Boing Boing, and now Groklaw. Excellent!

http://www.eff.org/deeplinks/archives/005238.php

EFF is sharing information about free virtual classes through the State of Play Academy, which do sound interesting.

The virtual classes will teach you the sort of fascinating stuff your real college never gets around to offering, like “Claims of Copyright Misuse based on First Amendment Interests,” “The Viacom-Youtube Lawsuit,” and “Election 2008 and the Remix Culture.” EFF staff attorney Kevin Bankston is signed up to teach a class called “Every Move You Make: Location Tracking and the Law.”

But of course, you can learn those types of things from your “real college.” Our doctoral students, for example, teach about those subjects in our undergraduate classes, including Information in Cyberspace (disclaimer: I’ve written and worked a lot on that class), Social Issues in a Networked Society, Security and Safety in Cyberspace, Collaborative Technologies, and We Like to Watch: Surveillance and Society. ^_^

From Ars Technica, Congress has sent letters to various universities looking to see how they combat “copyright piracy.”

But the surveys weren’t just to find out what’s being done, as House Judiciary Committee member Lamar Smith (R-TX) made a veiled threat to universities that do not provide satisfactory answers back to Congress. “If we do not receive acceptable answers, Congress will be forced to act,” Smith said in a statement.

The language they use in the letter and provided questions certainly betray the views of some representatives of Congress. The lists themselves were apparently based on lists generated from the MPAA and RIAA. That doesn’t make them inappropriate by any means, but it would make me want to examine their methodologies. ^_^

Copyright is complicated. The problems with infringement and the system itself are not going to be solved easily. Discussion on the Ars article itself raises some interesting challenges. Universities are going to have a rougher time of it in the immediate future, I believe, with this and publishers taking a harder line on electronic reserves.

Update: Here’s a link to the letter in PDF form.

Every so often I am amazed by the ingenuity that exists between people today and in the past- about the kinds of things we rediscover so many hundreds of years after their creation.

Originally seen on Slashdot, here’s the story of a pair of musicians who have decoded music from 600-year-old carvings in the Rosslyn Chapel in Scotland.

I wonder how what will happen to the recordings of our culture in that time frame…