My AALS Presentation: Cutting the Gordian Knot: Possible Solutions to the Conflict between the Gift, Work-for-Hire, and Market Models for Academic Work

This is the abstract and a short conclusion from my recent AALS presentation; the article will be published in IDEA: The Intellectual Property Law Review. Also, for a longer version, read Rebecca Tushnet’s writeup of my presentation of an earlier draft at the 2009 IP Works in Progress conference.

Academics are involved in an unique circular relationship to intellectual property. They build their work “on the shoulder of giants” – building on the expression of ideas by others, often being paid for work relating to their production of copyrighted materials, yet the custom is for them to retain copyright.

Academics then gift, sell, or license their works to publishers, who then sell or license these works back to the institutions that were the underlying support for their creation. This leads to several unfortunate situations: institutions paying for work twice, academics holding the inaccurate viewpoint that they can use copyrighted materials as long as they are for educational purposes, and academics technically being unable to reuse or revise works once their copyright has been transferred.

Further complicating the situation is language in the licenses for many of the databases that academics use – explicitly rejecting use for non-educational purposes or commercial purposes.

My forthcoming article discusses the development of the teacher exception to copyright through both common practice and case law, but will focus primarily on the potential solutions:

  • contract: explicitly changing the contract terms of employment;
  • statutory interpretation: by interpreting fair use broadly to more explicitly include educational use by the institution that pays for the work’s creation;
  • statute: creating an exception to copyright similar to public access to government funded research by the National Institutes of Health (42 USC § 282c (2009)); and
  • license: creating an open access / institutional repository to create an access point for faculty research, similar to the new policy followed by the Faculty of Arts and Sciences of Harvard University.

My Solution

A Multifaceted Institutional Repository to suit the needs of institutions and faculty:

  • To include all published academic works produced through institutional funding
  • Allows for portability for faculty from institution to institution
  • Will have buy-in from all levels – prefer mandate approved by faculty
  • Will allow for other faculty at the funding institution to use without needing to be concerned about permissions
  • Use present open source searching and later searching improvements
  • Allow for additions to the repository to be made by
    • Author, publisher, or institution (such as through the library)
    • Would allow for a delay (as with NIH mandate of placement in repository within 12 months)

Want more? Including why law review publishing is an ideal place to start creating an effective cross-? Then you’ll need to wait for the article!

Copyright Hall of Janus? : Harvard University’s Two-Faced Approach to Copyright

Harvard University recently has taken two very divergent approaches to copyright. I commend Harvard on the one hand for their open access policy, and on the other hand, I am shocked by a complete disregard for generally socially accepted standards of fair use.

Last year, Harvard University’s Faculty of Arts and Sciences, Law School, and Kennedy School of Government created Open Access policies, including

a nonexclusive, irrevocable, paid-up, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, provided that the articles are not sold for a profit.

Peter Suber of Open Access News lauds this step, saying that

Harvard will be the first university in the US to adopt an OA mandate. … [It is a] permission mandate rather than a deposit mandate. Instead of requiring faculty to deposit their postprints in the IR, it merely requires them to give the university permission (non-exclusive permission) to host the postprints in the [institutional repository].

As long as the university is willing to pay people, usually librarians, to make the actual deposits, it could be a faster and more frictionless way to move the deposit rate toward 100%.

Moving towards an open access approach to scholarship fits within Harvard’s approach to ownership and copyright. The Harvard University Intellectual Property Policy states, in part, that

the policy should encourage the viewpoint that ideas or creative works produced at the University should be used in ways that are meaningful in the public interest. This may be accomplished through widespread dissemination. Thus, dissemination and use of ideas and creativity should be encouraged throughout the Harvard community.

…It is expected that when entering into agreements for the publication and distribution of copyrighted materials, Authors will make arrangements that best serve the public interest.

So…

[Read more...]

Ownage, Licensing, and Pwnage: The Kindle and 1984

With a license, do you own the e-book?

Recently, Amazon.com deleted electronic books written by George Orwell back from customers’ Kindles, including 1984. While Amazon did return the money for purchase, customers were upset that something they “owned” was removed. Amazon explained that it  deleted these e-books because they  didn’t have the rights to sell the book in the U.S., though these works are in the public domain in some other countries.

As the Wall Street Journal law blog (and related article) states:

the incident raises some difficult questions about what it means to “own” books in the digital age. [O]wning an e-book is more akin to licensing a piece of software than it is to owning a bound volume: access comes with fine-print terms of service, and often digital rights management software to ensure that you abide by the rules.

Maybe it is just because these are books?

Books have a [] entrenched culture of sharing — libraries exist for lending dog-eared volumes — raising potentially knottier legal issues.

Actually no. It has to do with the new licensing model — used for the vast majority of electronic items. Figuring out ownership is much easier to determine when there is a physical or non-reproducable item that a boundary can be put around – a house, a shirt, a physical book.  Physical items can be sold and copyright is the most important possible limiter for intellectual property.

However, when a license is involved, the license terms rule. This means that the license can prevent sale or reuse (and some licenses directly state that they obviate fair use). Yet licenses can allow for greater use of copyrighted materials than copyright law allows — such as licensing truly unlimited use for educational purposes (fair use does not allow this expansive type of use!).

And this makes everything confusing for many because there is not one standard of use, even for libraries: “Use print materials based on copyright (including fair use), and electronic materials based on a license? I just want to use it!” The Memory Hole created by placing more and more materials behind a license are yet to be known, but the Kindle example is another great example of why copyright law needs to be changed — to further clarify safe harbours like fair use.

Our MIT6 Conference Presentation: The Intellectual Property of Remix Culture

After a truly great time presenting about fan culture two years ago at MIT5: Creativity, Ownership, and Collaboration in the Digital Age, we presented at the Massachusetts Institute of Technology’s Media in Transition Conference — this year entitled MIT6: Stone and papyrus, storage and transition (MiT 6). While our conference summary is forthcoming, here is our presentation (originally entitled: The Intellectual Property of User-generated Content), though the full paper will be on the conference website:

Generators of remix culture create communities and content, making the intellectual property of others more valuable, but receive no compensation for their work that increases the value of another’s property, and receive little to no rights in what they have created or added. Our presentation focuses on a particular sub-set of user-generated content: derivative/ transformative works of creativity – such as music videos (or vidding), fan-fiction, fan-zines and websites – though it could be applied to any situation where there is tension between a corporate content owner and its audience about ownership of the “brand” usually due to concerns of degrading market value or anti-piracy.

Pwnage

So what do we mean when we talk about intellectual property? To greatly simplify, we are focusing on copyright and trademark. In the U.S, copyright attaches to works immediately, once a creative, intellectual, scientific, or artistic works is fixed in a tangible form — and exists for life of the creator plus 70 years. The right to create derivative works is given to the creators — but there is fair use that allows others to use copyrighted works. Trademarks are the “branding” imagery plus auxiliary content (Apple brand computers, Apple brand music providing network (iTunes), Apple brand symbol, etc.) — and require registration, can be kept forever, yet need to be protected to be kept. An additional complicating factor are licenses — either for use of specific intellectual property or for use of a platform, such as YouTube.

Henry Jenkins writes in Convergence Culture that

“American intellectual property law has been rewritten to reflect the demands of mass media producers–away from providing economic incentives for individual artists and toward protecting the enormous economic investments made in branded entertainment”

MONEY! MONEY!

Those who are part of participatory culture are often not seeking compensation in traditional ways, yet are not just doing it for the LOLs. Viviana Zelizer discusses the social meaning of money in her same titled book:

“Money [according to some theorists] destroys, necessarily replacing personal bonds with calculative instrumental ties, corrupting cultural meanings with materialistic concerns…. Observers of commercialization in Western countries have thought they saw devastating consequences of money’s irresistible spread: the inexorable homogenation and flattening of social ties.

Money may not be what fans are seeking — instead recognition, credit, etc — but what are likely at the bare minimum to be seeking the ability to continue to participate. And continue to strengthening social ties in multiple ways — to each other, to the work, and to creators/owners.

LESSIG! (done in Khan style)

Laurence Lessig’s recent book, Remix: Making Art and Commerce Thrive in the Hybrid Economy discusses our present situation, includes a lengthy discussion of the economics of two types of culture — commercial and sharing.

A commercial economy [is centered on] money or “price” [as] a central term of the ordinary, or normal exchange.

Of all the possible terms for exchange within a sharing economy, the single term that isn’t appropriate is money.

But Lessig discusses a combination between the commercial economy and the sharing economy — the hybrid economy:

The hybrid is either a commercial entity that aims to leverage value from a sharing economy, or it is a sharing economy that builds a commercial entity to better support its sharing aims.

If those within the sharing economy begin to think of themselves as tools of a commercial economy, they will be less willing to play. If those within a commercial economy begin to think of it as a sharing economy, that may reduce their focus on economic reward.

Much of Lessig’s discussion about hybrid economies is applicable to fan culture and other examples of participatory culture and user-generated content. Therefore, our presentation is about both the successes and failures of hybrid economies and about how in order to get something of value, some measure of control over property needs to be loosened. Commodifying the value added by user-generated content varies greatly depending on who or what is determining the value. culture.

Tiziana Terranova also discusses the role of moral economy that discusses “free labor” found in fan participation:

“Free labor is the moment where this knowledgeable consumption of culture is translated into productive activities that are pleasurably embraced and at the same time often shamelessly exploited….The fruit of collective cultural labor has been not simply appropriated, but voluntarily channeled and controversially structured within capitalist business practices.

Firefly/Serenity (we have this section blogged here)

Harry Potter (we have a longer version of this section here)

Recently, J.K. Rowling won a case preventing the print publication of the Lexicon, a non-licensed encyclopedia of the Harry Potter universe. While barely mentioned during the trial, this case is not just about one book, but concerns the entire Harry Potter fan community.

The Lexicon was created as a online encyclopedia with a large number of fans helping to make the entries accurate. When Vander Ark signed his book deal, completely ignored were the countless fans that contributed and made the website a success. So the lawsuit was fight between the author and the compiler/host of a fan-created work. Yet the fans who have contributed to the Lexicon get neither money nor recognition of their contribution.

The longest mention of fans during the trial was by the publisher:

Q… if you win this case, out of the money that you receive, you don’t plan to give any of it to fans who submitted their work, their time, to submitting information from Ms. Rowling’s book to Mr. Vander Ark’s website, is that right?

Q. You’re going to give back money to the fans, is that what you’re saying?
A. If the book is successful, there’s a lot of possibilities.

Later, the judge said that the issue of fan payment/contribution was irrelevant:

Whether or not the fans contributed … is a side issue.

J.K. Rowling has always been supportive of the fan community surrounding her works, interceding on behalf of fanworks (she is however against fanworks that use underage characters in illegal physical situations). This case has led to a rift in the Harry Potter fan community, with the Leaky Cauldron (the most popular Harry Potter news-site/message-board) cutting all ties to the Lexicon.

A recent New York Times article, Public Provides Giggles; Bloggers Get the Book Deal, discusses how user input to websites, such as I Can Has Cheezburger? (book sold over 100,000 copies), has led to website owners receiving compensation while those that created value receive nothing:

the latest frenzy is over books that take the lazy, Tom Sawyer approach to authorship. The creators come up with a goofy or witty idea, put it up on a simple platform like Twitter and Tumblr, and wait for contributors to provide all of the content. The authors put their energy into publicizing the sites and compiling the best material.

Nowhere mentioned in the article is whether contributors receive recognition or compensation.

Star Wars

Star Wars is often talked about as a positive example — after all, there is a highly active fan community and a fanfilm contest. However, at present, Lucasfilm only allows for and takes control over certain types of fanworks — and zealously goes after those that do not fit their standards, even if those works arguably could be considered to be fair use.

Both Henry Jenkins in Convergence Culture (2006) and Anne Elizabeth Moore in Unmarketable: Brandalism, Copyfighting, Mocketing, and the Erosion of Integrity (2007) quote the same Lucasfilm exec, who said in the New York Times in 2002:

“We’ve been very clear all along where we draw the line. We love our fans. We want them to have fun. But if in fact somebody is using our characters to create a story unto itself, that’s not in the spirit of what we think fandom is about. Fandom is about celebrating the story the way it is.”

Moore describes the control Lucasfilm expects over the fandom as

It is an idealized brand environment that prohibits any potential negative, critical, or neutral comment.
…The Lucasfilm IP strategy, therefore, might read something like this: imitation is the sincerest, and only allowable, form of flatterry. Yet in practice, this narrow definition of fandom, while encouraging freedoms of certain speech, actively discourages others …[and] even punishes them. The strategy begins to look like a legally enforced suspension of critical engagement.”

Lessig says

A careful reading of Lucasfilm’s terms of use show that in exchange for the right to remix Lucasfilm’s creativity, the remixer has to give up all rights to what he produces. In particular, the remixer grants to Lucasfilm the “exclusive right” to the remix — including any commercial rights — for free. To any content the remixer uploads to the site, he grants to Lucasfilm a perpetual non-exclusive right, again including commercial rights and again for free.

The remixer is allowed to work, but the product of his work is not his. Put in terms appropriately (for Hollywood) over the top: The remixer becomes the sharecropper of the digital age.

Lucas is of course free, subject to “fair use,” to do whatever he wants with his creative work. The law of copyright grants him an exclusive right to “derivatives”; a remix is plainly a derivative. And it’s true that no one is forcing anyone to make a remix for free.

Nine Inch Nails (we have a shorter version of this section here)

Conversely, the band Nine Inch Nails and the musician behind it, Trent Reznor, has in recent years spearheaded novel approaches to user generated content that allows a symbiotic/collaborative relationship with fans and their work. It closely represents both the fundamental mindset of Open Source developer communities (distributed ownership) as well as adopting a model very similar to to the curious copyright culture in Japan, anmoku no ryokai, that allows derivative manga to be sold alongside their corporate-owned source. This approach won’t work for every corporate owner/creator, and it’s certainly not the only one, but it’s at least one current example of a hybrid.

NIN’s fanbase have had a traditional unusually interactive relationship with each other and with the band, serving as self-selected ambassadors and archivists for both official releases of the band and NIN fanworks:

NIN Historian: started in 2002, a fan run website that has documented memorabilia from live NIN shows from the bands inception.

NIN Remixes.com: an archive of fan-created remixes of Nine Inch Nails songs, which allows indivuals to upload their own work, and existed before Trent Reznor allowed his post – Interscope work to be distributed under a Creative Commons license. Remix.nin.com , started two years ago and exists alongside ninremixes.com, the fan run site that has existed for over 5 years. Universal Music group halted the launch of the “official” site

Year Zero ARG: As part of the Alternate Reality Game that accompanied YZ, three of the tracks were made available on flash drives ata couple of NIN shows. When the tracks were leaked on the internet, RIAA cracked down on the fans leaked tracks and remixes, even though the ARG campaign was officially condoned by Universal Music Group.

From Billboard:

“An RIAA representative confirms this, a move that boggles the minds of many. “These f*cking idiots are going after a campaign that the label signed off on,” the source says.”

Since the Creative Commons blog has already put together links:

First, there’s the critical acclaim and two Grammy nominations, which testify to the work’s strength as a musical piece. But what has got us really excited is how well the album has done with music fans. Aside from generating over $1.6 million in revenue for NIN in its first week and hitting #1 on Billboard’s Electronic charts, Last.fm has the album ranked as the 4th-most-listened to album of the year, with over 5,222,525 scrobbles.

Even more exciting, however, is that Ghosts I-IV is ranked the best selling MP3 album of 2008 on Amazon’s MP3 store.

The post (mirrored on Laurence Lessig) has an explanation for this:

So why would fans bother buying files that were identical to the ones on the file sharing networks? One explanation is the convenience and ease of use of NIN and Amazon’s MP3 stores. But another is that fans understood that purchasing MP3s would directly support the music and career of a musician they liked. The next time someone tries to convince you that releasing music under CC will cannibalize digital sales, remember that Ghosts I-IV broke that rule…

In The Economic Structure of Intellectual Property Law Posner and Landes state that

“When several artists contribute to creating an integrated expressive work, it is efficient to vest copyright in one person [or company] and who better than the initiator and coordinator of the project?”

Posner and Landes continue

… [I]f a work is offered as a substitute for another work, then it takes away sales from the copied work. If the work is offered as criticism, it may take away sales too, but not by virtue of the copying– by virtue of the criticism, which should be permitted.”

The Ghosts example is certainly an argument against that statement. Recently, NIN went a step further in extending creative control to fans by “discovering” 400GB of high definition concert video footage online and inviting fans to create their own video projects.

There’s a bit of history behind this: after learning that a home video release of the most recent tour NIN was not in the cards (long story behind that, but at least according to Reznor, it was due in part to his former record label roadblocking him), some disappointed fans took it upon themselves to organize an online community to create a fan-produced video of the last show of the tour. From fan website http://thisoneisonus.org:

On 5th May, 2008, Nine Inch Nails released their latest album, The Slip, free online, as a gift to their fans. Or as Trent put it: “This one’s on me”.

On December 13th, 2008, dozens of Nine Inch Nails fans recorded the last show in the Lights In The Sky tour at Planet Hollywood, Las Vegas:

By working together, we aim to create a DVD to document this show that will be released free online, and possibly as a not-for-profit physical release. This one, is on us. Our time. Our effort. Our present to all NIN fans.

This was all with the indirect “blessing” of Reznor, who even before the video leak, loosened up the video security at the the show, allowing fans to record their own footage. Now to be sure, artists condoning and supporting fan video isn’t entirely a new concept either: back in ‘04, the Beastie Boys gave video cameras to fans and released an entire feature concert film of fan-shot video. And long before they became Public Enemy number 1 to grassroots fan activity, Metallica released a video, Cliff ‘em All, that featured some fan-made video record during their early years. But providing what is essentially a DVD’s worth of video footage for fans to play with is notable: it’s a gesture that embraces the open source/Creative Commons approach to fan-works and fair use that presumes a kind of perceived collective ownership of property. (A court would argue whether the derivative works of remixes and fan videos belong to Reznor or the fans, but there’s cultural perception within that particular community that the footage is owned collectively the fan community at large.)

Each party receives compensation from this sharing economy: NIN gets to leverage the enthusiasm of fans, who are willing to invest time and money to serve as free marketing ambassadors for the band, while fans recieve a product to consume free-of-charge.

Conclusion

We’re at a point now where more content/owners creators depending on social media/viral and word of mouth marketing to extend their reach and fans using technology and media tools to create increasingly sophisticated derivative works that conflate the role of media producer/consumer/owner/ambassador. Now, we’re seeing those worlds bump into each other. Current copyright law and culture hasn’t yet caught up to these advances in technology and culture. Pat Aufderheide mentioned at her presentation at MIT6 about a 20th century mindset to fair use being carried over into 21st century practice, and I think that’s what we are seeing here.There’s room here for scholars and practitioners to identify these “best (and worst) practices” of this hybrid economy model to replicate and to guide policy decisions, with more companies at least exploring the possibilities of adopting an approach that allows for a safe haven for fans/brand supporters/etc. to create content that would benefits all parties, and also allow users to edcate themselves on their own rights and responsibilities as media producers in this public sphere.

Laurence Lessig says that:

“there is a deep divide between those who believe that obsessive control is the hybrid’s path to profit … It is for the privilege of getting to remix … that these new creators are told they must waive any rights of their own. They should be happy with whatever they get (especially as most of them are probably “pirates” anyway).

A decade from now, [a controlling] Vaderesque [approach to remix culture] will look as silly as the advice lawyers gave the recording industry a decade ago. New entrants, not as obsessed with total control, will generate radically more successful remix markets. The people who spend hundreds of hours creating this new work will flock to places and companies where their integrity as creators is respected. As every revolution in democratizing technologies since the beginning of time has demonstrated, victory goes to those who embrace with respect the new creators….Businesses will have to think carefully about which terms will excite the masses to work for them for free. Competition will help define these terms. But if one more lawyer protected from the market may be permitted a prediction, I suggest sharecropping will not survive long as a successful strategy for the remixer.

Give it away: Why releasing music (and video!) through Creative Commons licenses is good for fan relations

NIN + Creative Commons = Remix(es)

NIN + Creative Commons = Remix(es)

We write about Nine Inch Nails a lot around here at Learned Fangirl. It’s not just because at least one of us is a hugely obsessive NIN fan, it’s because Trent Reznor’s been consistently breaking new ground in his approach to music distribution and fan relations.

While not mentioned in his recent book, Remix: Making Art and Commerce thrive in the Hybrid Economy, Laurence Lessig has used Nine Inch Nails previously and recently as a positive example of the hybrid economy. (Ghosts was released under a Creative Commons license).

Since the Creative Commons blog has already put together links:

First, there’s the critical acclaim and two Grammy nominations, which testify to the work’s strength as a musical piece. But what has got us really excited is how well the album has done with music fans. Aside from generating over $1.6 million in revenue for NIN in its first week, and hitting #1 on Billboard’s Electronic charts, Last.fm has the album ranked as the 4th-most-listened to album of the year, with over 5,222,525 scrobbles.

Even more exciting, however, is that Ghosts I-IV is ranked the best selling MP3 album of 2008 on Amazon’s MP3 store.

The post (mirrored on Laurence Lessig)

Yes, this is a still from the official Meathead video

Yes, this is a still from the "official" Meathead video

has an explanation for this:

So why would fans bother buying files that were identical to the ones on the file sharing networks? One explanation is the convenience and ease of use of NIN and Amazon’s MP3 stores. But another is that fans understood that purchasing MP3s would directly support the music and career of a musician they liked. The next time someone tries to convince you that releasing music under CC will cannibalize digital sales, remember that Ghosts I-IV broke that rule…

There are a couple of caveats here: number 1, the free/purchased files were not completely identical, as only the first quarter of the album, Ghosts I was free, Ghosts II-IV were not. Moreover, I think there is legitimate criticism from many unsigned and underground artists that this approach won’t work for them: NIN has an unusually dedicated and passionate grassroots fanbase for a band that’s not getting a great deal of mainstream airplay, Trent Reznor’s got the fan support to take a risk like that and win.

However, I do think it’s an approach that major record labels should heed and adopt. If you give just a little, if you’ve got a good product, and you extend even a little bit of trust and goodwill to the fans that want to support you, they will repay you in kind.

Recently, NIN went a step further in extending creative control to fans by “discovering” 400GB of high definition concert video footage online and inviting fans to create their own video projects.

There’s a bit of history behind this: after learning that a home video release of the most recent tour NIN was not in the cards (long story behind that, but at least according to Reznor, it was due in part to his former record label roadblocking him), some disappointed fans took it upon themselves to organize an online community to create a fan-produced video of the last show of the tour.

From fan website http://thisoneisonus.org

On 5th May, 2008, Nine Inch Nails released their latest album, The Slip, free online, as a gift to their fans. Or as Trent put it: “This one’s on me”.

On December 13th, 2008, dozens of Nine Inch Nails fans recorded the last show in the Lights In The Sky tour at Planet Hollywood, Las Vegas. By working together, we aim to create a DVD to document this show that will be released free online, and possibly as a not-for-profit physical release. This one, is on us. Our time. Our effort. Our present to all NIN fans.

This was all with the indirect “blessing” of Trent, who loosened up the video security at the the show.

Now to be sure, artists condoning and supporting fan video isn’t entirely a new concept either: back in ’04, the Beastie Boys gave video cameras to fans and released an entire feature concert film of fan-shot video. And long before they became Public Enemy number 1 to grassroots fan activity, Metallica released a video, Cliff ‘em All., that featured some fan-made video record during their early years

But providing what is essentially a DVD’s worth of video footage for fans to play with is notable: it’s a gesture that’s based on listening to one’s fans, and responding to their needs.

It’s also based on trusting your fans enough to know even when giving something valuable away, their support will be the best marketing campaign you could have. These are individuals willingly giving away their fan labor for the good of the artist and the fan community. And at first, the artist didn’t even have to ask. The initial fan video project was from organized from the bottom-up, because fans wanted “pay forward” Trent’s generosity and keep up enthusiasm for the next leg of the tour.

Seriously, even the best marketing department couldn’t create this for an artist.

MIT’s Comparative Media Studies Conference — Futures of Entertainment 3

While we can’t make it to every great conference held at MIT by the cutting-edge Comparative Media Studies program, they have put on another great Futures of Entertainment 3 conference (discussion of Futures of Entertainment 2). And upcoming this year is Media in Transition 6, which we are planning to attend.

Interestingly, the Conferenceis first is being released on video through MIT’s homegrown TechTV site and then will be released through other means — but you can add it to your ipod. Surprisingly, the podcasts are listed as having the copyright status of “all rights reserved” — yet embedding is not only allowed, but listed as an option, Therefore, it seems as if the conference is being released more like a Creative Commons attribution-sharealike license. An unanswered question — if the conference is copyrighted, who owns the copyright? The speakers? MIT — of the whole or only of the compilation? If you would rather read about the conference, the liveblogging summaries are also available.

An update on locked-up / “owned” government information: In Honor of National Library Week

Just try to read me on Google Book Search!

Works by the U.S. government are in the public domain* — but are they truly available to the public? Some publishers have managed to lock up public domain materials or have not made them accessible as publicly promised.

Government-created public domain materials have been locked away from the public through contract (Westlaw directly with the government) and through default settings that vary from stated policy (Google Books). An additional complicating factor for public domain government documents is their official status or “citability.” I’ll be discussing all of these factors.

No company should be allowed to hold all of the public domain cards through contracts or licensing agreements when the entire deck of the public domain clearly belongs to the public.

So first with the contract/licensing that keeps public domain materials locked away. The most recent highly publicized incident includes the U.S. Government Accountability Office (GAO) legislative histories, an excellent source of information about the reasoning behind why laws were created the way they were.

Since 1921, the GAO has compiled 20,597 legislative histories of most public laws from 1915-1995. Daniel Cornwall at Free Government Information posts about how GAO entered an agreement to scan these documents

with a commercial partner [West] when the GAO office is within driving distance of a number of major universities and when public-spirited organizations like the Internet Archive and Public Resource might have been happy to come up with a solution to provide this taxpayer-funded information at zero cost to the taxpayers and either zero or minimal costs to GAO. Conceivably, there might have been some way for the Government Printing Office to incorporate this into GPO Access.

In regards to the West contract, several commenters have explained the reasons why this situation is deeply troubling:

Why would the GAO enter into a relationship giving a private commercial entity exclusive rights to this valuable public resource? … As far as I can tell, no one from either the GAO or Thomson West has responded to the concerns raised. Robert J. Ambrogi at Legal Blog Watch

Wholesale privatization without a careful, public examination of other, more citizen-friendly, alternatives is not acceptable. Daniel Cornwall at Free Government Information

Locking up these documents is ‘a cautionary tale for any government agency that wants to leverage its records with the help of private enterprise.’ Simon Fodden at Slaw.ca

Fortunately, “rogue archivist” Carl Malamud has made documents relating to the GAO legislative histories available, including a website/ad that has

[West] go[ing] so far as to boast that you should purchase this exclusive “product” from West because the GAO law librarians (public employees!) have done all the work for you!

Unfortunately, this is far from the only example of a private company locking up public domain materials created by a government agency, due to the value of those materials. For example, the OpenCRS project (and others) attempt to make available Congressional Research Service Reports that as a whole are only available from commercial vendors ( Penny Hill Press, LexisNexis, and CRS documents). We the taxpayers are spending over $100 million a year on the production of these reports by government employees — yet we do not have comprehensive access without paying. The House bill introduced to open these reports to the public, H.R. 2545, has had no action since the date of introduction.

Think about how this bizarre situation has turned public domain on its head – a government employee has created public domain documents, a company has acquired them, and the public now needs to go through that company to see those documents. And if you are a subscriber who has paid for access and then you attempt to download all of those public domain documents to make them publicly available – look out! If you do this, you’ve likely violated your contract / license with the company to access those public domain documents, even though those public domain documents have no copyright protection. The commercial vendor considers the license to trump public domain status.

Now if you think locking up materials with exclusive deals is bad, consider being told that government documents are accessible, yet they are not! A year ago, I posted An Open Letter to Google, William Patry, and Google’s Library Partners regarding the amount of public domain materials that according to Google’s own policies should be available for download.

Some of the documents I discussed that should be available are:

These types of documents are still not available. One of the examples given by the Prelinger Library over two years ago of a document that ironically was not available — was the law itself. The specific version of the copyright law mentioned on the Prelinger blog that was digitized September 2005 from the University of Michigan? Still not available as of today!

U.S. Copyright law — yes, the law itself and government documents regarding it– are still not freely available on Google Books here, here, here , and I could go on. I ironically love the copyrighted material notice on this snippet view of Circular 92 — the Copyright Office’s publication of the law.

Since these documents are in the public domain, yet tied up by Google who can we go to correct this? Obviously, my post last year and the complaints of others didn’t do enough. Last year, in addition to posting, I contacted some of the partner libraries — the response (mentioned here) was it was Google’s responsibility to make those documents downloadable.

Siva Vaidhyanathan has frequently written about the dangers of trusting Google too much (see The Googlization of Everything) including in regards to Google Book Search:

We could solve each of the problems [of difficulty of finding materials in books, exclusivity of research sources, and the public's unwillingness to use print sources] without Google, although it would take a deep commitment from the public and its institutions to make good information more accessible. … Google’s is still the most ambitious plan, however, and its much bolder venture into the world of print offers us at least three reasons to worry: privacy, privatization, and property.

An additional wrinkle to this already complicated situation is “If government documents are freely available can we trust their accuracy? And can we cite them?”

The American Association of Law Libraries (AALL) last year published a report through on authentication of online state legal resources. The results are startling:

Of the five states (Alaska, Indiana, New Mexico, Tennessee, and Utah) which give official status to their online legal resources, none are authenticated and only Utah requires permanent public access. (emphasis added)

While there are many new upstarts trying to make government information available to all (AltLaw, Precydent, PublicResource), because these new services do not provide government documents that are authenticated or published on a trusted vendor (Lexis or Westlaw), these documents aren’t citable in court filings (due to citation rules). Therefore, attorneys and the public still need to rely on paid services to public domain government documents.

Ian Gallacher has suggested a radical solution to the reliance on paid access to court cases and statutes, stating that law schools collectively take up the mantle of assuring that all of the legal public domain materials are available to all. He admits that this will be a struggle; after all, West fought to have its internal pagination system recognized as copyrightable.

But can we continue to rely on companies to allow access to what belongs to us all? I don’t think that is a safe bet to make. There is nothing wrong with non-profit organizations, government entities, and for-profit companies all having access to these materials. I would not want for-profits to be shut out of the marketplace because they should continue to provide value-added services, such as annotations, unique search functions and organization, and people-written analysis. As Jim Jacobs on Free Government Info states,

“The problem as we see it is that so many agencies seem ignorant of the fact that privatizing access to said digitized public domain information actually limits access in the long run.”

Siva Vaidhyanathan’s statement about Google applies more generally to the present status quo leaving the responsibility for access to public domain materials in the hands of companies:

The process of privatization is particularly troubling. Of course, we should not pretend that libraries operate outside market forces or do not depend on outsourcing many of their functions. But we must recognize that some of the thorniest problems facing libraries today — paying for and maintaining commercial electronic databases and cataloging services — are a direct result of rapid privatization and onerous contract terms. … The long-term risk of privatization is simple: Companies change and fail. Libraries and universities last. Should we entrust our heritage and collective knowledge to a business that has been around for less time than Brad Pitt and Jennifer Aniston were together? A hundred years from now, Google may well not exist.

For U.S. citizens, it is the responsibility of us all to push to make public domain documents accessible to us and resist privatization of public domain materials.

*Government works created by the U.S. federal government are not protected by copyright; instead these works (with limited exceptions for materials withheld for security, export control, and policy reasons) are in the public domain.

**Bias statement: I use products by Lexis, Westlaw, and Google every day, due to their usefulness to my work and personal life. These companies have a stated responsibility to their shareholders, not to the United States public.

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