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Let’s look at answering some of those questions, with some research and help from Georgia Harper.
There is no “archival right” of copyright for someone to contract away.
“Publication” can have a contractual definition, but putting something on the Internet does not necessarily mean that something is published.
If you can meet the requirements for Section 108, you can use the exemption. Although our institutional repository is not an “established” archive, it does and can meet those requirements, even for electronic records. One of those requirements is that objects which are converted from analog to digital can only be accessible locally- that is, within the “four walls” of the institution. Hmm. In this case, I would guess the institution would be the School of Information, so maybe limited to the Sanchez building? We can probably use firewall rules or IP rules to block content, but that seems to be an all-or-nothing approach- we’ll need to see how we can use DSpace for those requirements. (The law doesn’t really address “born digital” objects.)
Like I mentioned in class, we could use permission from one author to put something online in cases of joint authorship- but then there is an ethical question on top of the legal question.
The archive itself may have copyrightable information in selection, arrangement, etc., so the students in the class should also sign a SIP agreement. ^_^

Pat Galloway’s course, INF 392K – Problems in Permanent Retention of Electronic Records currently has a very interesting project in which they are attempting to create a digital institutional repository, likely using DSpace.

I sat in on part of the course this morning because I was interested in the copyright issues associated with the project. The project is not only going to digitaize the School of Information web site, but also wishes to digitize faculty information, including publications.

Here are just a few of the questions that were raised:
1. Can a faculty member sign over typical fair use rights or the right to archive their work?
2. How does the existence of such a contract affect section 108 exemptions?
3. Does the section 108 exemption apply to institutional repositories such as this that are not necessarily associated with the official UT Libraries or other traditional archival institutions?
4. In issues of joint authorship, what kinds of permissions are necessary from the authors before including their works in such a repository, when the secondary author may not have a connection to the institution? (This became more of an ethical question than a legal question.)
5. Is placing a document online in this manner “publication” for purposes of evaluating exclusive publishing contracts?
6. What kinds of authorization restrictions need to be made available for this type of archiving, and does a “born digital” object have different requirements then a digitized object?

There were more, but those are a start.

Quite the contrary, actually…
English PDF of Japanese P2P study

Wow. If you have a lot of time on your hands, this trademark and copyright case about mall company Taubman”, about a Website about a mall here in Texas, is an interesting read. I started reading it expecting it only to take a few minutes, and here I am about an hour and a half later…

In a nutshell: Guy made a website about a mall. Company sued for trademark infringment. Along the way, company’s lawyers were really lame. Guy wins (with help from Public Knowledge).
The end.

The story is also a very good example of what a pain in the ass some civil procedure is, and how a person absolutely has to have a lawyer when they’re sued like this- which IMHO, sucks.

There’s a lot of chatter about recent actions by the RIAA on the SANS Unisog (University Security Operations Group) list. (For some reason, not all the messages are appearing on the listserv, but there are more there.) Apparently, the RIAA is informing the universities that they will be subpeoned as to the identity of particular users. I’m not sure if those letters of intent indicate that the university in question should be treating their records retention in any way differently then they have been treating it. The letters allegedly cite 18 USC 2703(f) (see the link to the message above). My questions are: does that statute apply, and if so is the university then required to save those logs upon receiving that notice? That portion of the law seems to apply to governmental entities, so I would think that once the government requested it you would need to, but not when the RIAA requests it. But IANAL. I’ll have to find someone to ask.

On an unrelated related note ^_-, it’s interesting how security or IT people are often the people who receive DMCA notices. In my experience, not all of us are particularly copyright savvy, although that is changing to some extent. Thankfully, a lot of us have access to legal counsel. ^_^

You know, I’ve really never liked the term “DRM” (Digital Rights Management). Whose rights are being protected? Who’s managing these rights? The customer is not the answer to either of these questions.

At any rate, there’s a pretty good article on the BBC talking about the pros and cons of Trusted Computing and DRM.

I’ve got some copyright related observations that really don’t affect us, but that I find interesting. In one of the modules I listed several characteristics of information in cyberspace (relatively) unique to cyberspace. These characterstics included the ease of creating, sharing, and changing information. As P2P demonstrates, there are obvious effects of copyright in cyberspace due to these characteristics. Here’s another effect of these characteristics: because our information changes so often, when we say © 2005 on our web site, well, a lot of that material could be © 2004, © 2003 or even earlier. Those original words were copyrighted when they were first expressed. However, there might not be a copy of those original words in a form that people can find, and it would be difficult if not impossible to separate the original expression from the derivative expression. With copyright terms being as long as they are, and digital media having a shelf life as short as it is, that probably isn’t a problem. Yet. In the far future, if we can figure out a way to preserve digital information in such a way that it exists as long as copyright exists- which right now is flat out not going to happen in 99.9% of digital materials- it will be difficult to prove when these ideas were first expressed in copyrightable form.

Senator Orrin Hatch to head IP Committee in Senate

I find that bit of news disturbing. Senator Hatch is a very strong IP proponent, in my opinion to the detriment of the public and the authors themselves (in favor of the entertainment companies). He has also proposed truly terrible laws- parts of the Induce Act and the truly awful suggestion that the music industry should be able to destroy consumer PCs (and if they were mistaken in their targets, oh well.)

Very interesting relase from NCSoft about the Marvel/ NCSoft suit… It appears the judge has thrown several of Marvel’s claims. I’m interested in where this case is going. There are trademark and copyright infringement claims here, and I really want to see how the decision handles the overlap.

There are several technology related policy and legal issues involved in an online course.
We’ll start with copyright. Here are a few of these subjects.
1. The copyright of the course contents generated by people working on the course
2. The copyright of the external materials used in the course
3. The copyright of the student work published online and student work contributed to the course

We’ll start with the copyright of INF 312.
It hasn’t really come been a problem, but there are certainly questions involved. Here’s a big one: how do we continue to use materials generated for the course when people come and go?

I’m going to create an “about” page summarizing a history of the INF 312 page, with everyone’s help, over the summer. To make a long story short, INF 312 is a (mainly) online course, Information in Cyberspace. It’s the product of several instructors, student assistants, and staff at the University of Texas at Austin. These instructors change from year to year and the contents of the course (the web pages) can change from day to day. We’re pretty successful with this updating, IMHO. We value staying current. With our topics, we can guarantee that our students will know if we’re not.

Our system of writing and updating works for several reasons, and these are the same reasons that copyright hasn’t been a problem. I don’t think any of us have huge egos, for one. We’re relatively easy going and we get along well. We admit we don’t know everything, we look for and accept criticism, and we let others update our work. We also recognize that this endeavor is a team effort in all areas. We value the sharing of information. All of us contribute to the development of these modules. While one person might be the “primary” writer, everyone participates in the module creation, reviews it, gives feedback, and can add to it. Module development is a constant cycle of writing-feedback-update-publish-feedback. And the modules wouldn’t happen at all without the things on the backend- the site design, the page design, etc.
All of these things may contain copyrightable elements.

Here are some of the issues.

1. Who owns the course contents?
Well, we own the educational materials that we write, as individuals. Luckily for us, that’s UT policy: faculty and students own the educational material that they generate, even in the course of their work. Now, there are also staff members in the form of undergraduate and graduate assistants who also contribute to the course. I’m less clear on the status of materials, educational and non-educational, that staff generates.

Of course, to further complicate matters, at least two instructors contribute to the course in some manner as both staff and faculty, and some instructors have contributed materials to the course as student assistants and later faculty.

This means that we have to pay attention to the copyrightable expression that we generate and in what capacity it is generated. We really haven’t bothered with that in the past. Ideally, it would be something we wouldn’t need to worry about too much. Is there a solution?

2. Who’s “We?”
Well, copyright is automatically assigned to the author of a work with certain exceptions (work for hire, etc.). On our pages we’ve taken to say © INF 312 [Year]. Of course, we don’t have a precise definition of what that means and I’m not entirely certain about the legal status of posting the mark in that manner without the explicit transfer of copyright. Did we explicitly intend to be joint owners when the works were created? Probably, but that means that we have copyright. Is “we” the individual instructors or an institution? Can “INF 312” be a copyright owner? Can we define “INF 312” in such a way that the term has meaning through time, and if so do we need to explicitly do so?

In some cases (the final modules) an individual claims copyright and can do what they want with it (use Creative Commons licenses, etc.). In the copyright final module, some of the content is jointly owned by me and different people I interview- I explicitly received permission to share the materials under a Creative Commons license so that we could use it now and in the future.

And the date is not entirely accurate in some cases, which I’ll address in a later post.

3. What’s the problem?
Here’s the thing- the materials we use in the course from semester to semester, from day to day, change. That means that someone has to go in there and change them. That sounds an awful lot like of a derivative work when people who weren’t the original authors make and publish these changes. ^_^ Now, we can argue that it is implied that by contributing to the course a person is accepting these terms, but there are still situations when “something” can come up. For example, last year some of the instructors were contacted by Harper-Collins. Publishing something in the physical world is a situation that probably wasn’t considered when the authors wrote the original materials (and some of those authors were no longer affiliated with the course and were not contacted).

If the course contents are jointly owned, would that mean that the derivative works in question are owned by the original joint owners, whomever or whatever they may be?

If we’re assigning copyright to INF 312, doesn’t that fix the problem? It might, but again- we probably need the explicit assignment of copyright, and some of the people who wrote the original work are no longer affiliated with the course. Luckily for us, they haven’t minded and aren’t likely to due to reasons discussed above.

4. What can we do?
Well, we probably all should sign a paper stating that the modular content that we develop, unless specifically indicated otherwise, has copyright assigned to INF 312, and define the course in a way that allows the School of Information to use the work in whatever manner they see fit. That way, if the course number or name changes “we” (the people still affiliated with the course) can keep on developing the course. We wouldn’t need to keep careful track of the materials generated that are owned by individuals (rather than the institution). We should also assign copying in the final modules in such a way that the original author gets credit but others can continue using the material in the future. Actually, we should probably keep track of EVERYONE who contributes to the course- not just for copyright reasons, but to let them be recognized and to show how many people affect what goes on.