White House Makes Full Copyright Claim on Photos, by Kathy Gill The Moderate Voice (Feb 6th, 2010).

The U.S. government policy on photographs and copyright is pretty straightfoward: photos produced by federal employees as part of their job responsibilities are "not subject to copyright in the United States and there are no U.S. copyright restrictions on reproduction, derivative works, distribution, performance, or display of the work."

Why, then, is the Obama White House asserting that no one but "news organizations" can use its Flickr photos? Why is it asserting that manipulation is prohibited? Why is it asserting that photos may not be used in "commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House"?

http://www.flickr.com/photos/whitehouse/4331402906/

No doubt folks have seen at least 1 of the growing video remixes of Hitler in the bunker. Well here's a new one from Critical Commons that highlights digital scholarship, open courseware, and fair use. Nicely done.

Critical Commons provides information about current copyright law and its alternatives in order to facilitate the writing and dissemination of best practices and fair use guidelines for scholarly and creative communities. Critical Commons also functions as a showcase for innovative forms of electronic scholarship and creative production that are transformative, culturally enriching and both legally and ethically defensible. At the heart of Critical Commons is an online tool for viewing, tagging, sharing, annotating and curating media within the guidelines established by a given community. Our goal is to build open, informed communities around media-based teaching, learning and creativity, both inside and outside of formal educational environments.

Building on our previous post about today's House hearing on digital books, it appears that Marybeth Peters, head of the US Copyright Office, is not supportive of the google book settlement. In written testimony (PDF) before the House Judiciary Committee, she wrote that the settlement...

“...inappropriately creates something similar to a compulsory license for works, unfairly alters the property interests of millions of rights-holders of out-of-print works without any Congressional oversight and has the capacity to create diplomatic stress for the United States.”

For more, see today's Wallstreet Journal blog: "Copyright Office No Fan of Google Books Settlement."

Harvard Law professor Charlie Nesson, in a recent conversation with ArsTechnica, argued that file-swapping is fair use. The context for this conversation was that Nesson and others from harvard Law School are defense attorneys in the case of Recording Industry Association of America (RIAA) v. Joel Tenenbaum, a case where the RIAA is suing Tenenbaum for allegedly downloaded seven songs from a file-sharing network. In the interview with ArsTechnica, Nesson was laying out his strategy for the case.

While I -- admittedly a non-lawyer! -- think this is quite an elegant argument, other "free culture" academics seem puzzled by Nesson's strategy. Wendy Seltzer, who heads up the Chilling Effects clearinghouse and served as an EFF staff attorney, was quoted as saying, "I fear that we do damage to fair use by arguments that stretch it to include filesharing—weakening our claims to fair use even for un-permissioned transformations. I am much more comfortable disagreeing with the law than claiming at this point in time that it already excuses filesharing."

Peter Murray-Rust, of the Unilever Centre for Molecular Informatics, Cambridge, looks at the opportunities that libraries missed. This is a must-read.

He says that Libraries once had a central role in guiding scholarship but that neither Libraries nor Librarians do anymore. He traces this decline to "two major missed opportunities where, if we had had real guaradians of scholarship we would not be in the current mess - running scared of publishers and lawyers."

• The library of the future - Guardian of Scholarship?, by Peter Murray Rust, petermr’s blog, March 19th, 2009.

So, simply, the librarian of the future must be a revolutionary. They may or may not be Librarians. If Librarians are not revolutionaries they have little future.

Access to Old Information, by Steven M. Bellovin, SMBlog, 8 March 2009.

Bellovin notes that Google "requests" you use public domain books you download from books.google.com for "personal, non-commercial purposes." This isn't a new issue, of course, and Bellovin points out that Congressional Information Services, Inc. claims that its microfilms of a U.S. government documents cannot be reused "except for individual research."

He continues:

What we are seeing is the use of contract law to obtain rights not granted by copyright. If we are not careful, we will see public information locked up. Worse yet, digital records can be protected by so-called Digital Rights Management (DRM) technology, making them inaccessible except on terms dictated by the physical record's owner.

...We need to ask about the fate of public documents (such as government records) and about the role of libraries.... [I]f a private company is going to be the designated publisher, it should not control how the documents are used.

He also calls on libraries to do their part to keep this from happening, for "By agreeing to stringent restrictions, above and beyond what would be permitted under the Fair Use doctrine of copyright law, [libraries] undermine their own goals.

I would add that, in the digital age, one way we can ensure free access to government information is by making the raw, complete digital information universally freely and accessible. Private sector companies can then add value and put their restrictions on their added value services, not on the content.

The "Fair Copyright in Research Works Act" (H.R. 801) back and forth between bill sponsor Representative John Conyers and bill opponent Lawrence Lessig continues ... LESSIG - A Reply to Representative Conyers, 03.09.2009:

"This bill is nothing more than a "publishers' protection act." It is an awful step backwards for science -- as 33 Nobel Prize winners, the current and former head of the NIH, the American Library Association, and the Alliance for Taxpayer Access have all said. And Mr. Conyers knows this. Practically the identical bill was introduced in the last Congress. Mr. Conyers' committee held hearings on that bill. The "open access" community rallied to demonstrate that this publishers' bill was bad for science. Even some of the cosponsors of the bill admitted the bill was flawed. Yet after that full and fair hearing on this flawed bill, like Jason in Friday the 13th, the bill returned -- unchanged, as if nothing in the hundreds of reasons for why this bill was flawed mattered to the sponsors..."

James Boyle, William Neal Reynolds Professor of Law at Duke Law School and co-founder of Science Commons, has a new piece about the so-called "Fair Copyright in Research Works Act" (H.R.801) that lays out the arguments against this bill in chilling detail. He says that the bill "is so badly drafted that it would also wreak havoc on federal information policy more generally."

• Misunderestimating open science, By James Boyle, Financial Times, February 24 2009.

As a copyright professor, I have to say the bill is a nightmare. For reasons I won’t bore you with, its limitations on Federal agencies are completely unworkable. And as a scholar who writes about innovation, I have to say that it flies in the face of decades of research which shows the extraordinary multiplier effect of free access to information on the speed of scientific development. But speaking as a human being, I just have to wonder what could be going through a politician’s head at a moment like this.

...This bill would forbid us from building the World Wide Web for science, even for the research that taxpayers have funded.

See also: Act now for open access to govt funded research.

Professor Boyle's most recent book is The Public Domain: Enclosing the Commons of the Mind (Yale University Press.) which you can download for free from http://thepublicdomain.org .

Jim, James, Dan: Dan, you are right, I should have used "fair use" rather than "public use." in my blog entry. Sorry about the confusion. However, my observations still stand. Libraries do not act on behalf of individuals in terms of "fair use." It is up to individuals to be responsible custodians of how they might use library material. Most, if not all, libraries warn their community that there are limitations on ways library material can be distributed or duplicated. And these limitations are often embraced by agreements with vendors. These limitations govern how libraries lend material through interlibrary loan, circulate material to non-primary users outside our communities, reproduce or digitize material for reserve collections in academic libraries, and libraries post clear warnings on photocopiers that certain forms of duplication and redistribution are illegal. The burden for responsible license and copyright use still rests with the individual. It is in this context that I frame my comments about the library's role.

And James, I understand the essential link between the legal and economic nature of licensing and/or copyright -- and surprisingly, we both agree libraries abandoned their role and lost an opportunity to recreate a critical public service role in the matrix when their collections began to digitize through a complicated public/private partnerships. And we both agree the future of the FDLP depends on how well we manage this collections/service responsibility.

Jim and James -- I think we can all agree that the future of libraries depends on how they deploy the dynamic between collections and services in a digital world. Where reasonable people can disagree, I hope, is the relative importance of one or the other. One faction might argue collections are still paramount; other perspectives may consider collections to be not as important (or differently important) for the future. It is clear the four of us will disagree about where this set point might rest. However, to equate the difference between our two perspectives as a measure of how the opposing perspective advocates the destruction of libraries ... well, I do not think we need to go there. My observations, speculations, and rhetoric does not advocate destruction. They are supposed encourage debate, reflection, and exhortation to action. Judging from your thoughtful responses, this goal is being achieved.

I am going to step back from this rhetorical point and get back to commenting on the future possibilities of government information in our libraries. I am sure we will join forces again over these considerations, but I think all of our perspectives have been underscored enough for the moment.

See you on Day 35.

All right, all right. Readers won't let me get away with the single comment in the last blog entry I had about the article in the New York Review of Books -- and I think this feeds into the long-standing conversation I have been having with J A Jacobs. Simply put: I do not think libraries, as institutions, have any role in claiming a "public use" provision within the infrastructure of copyright. In other words, print and paper technology gave libraries a "gap" between those who owned the information and those who want to use it. While library circulation did not threaten the sale of the same material through the private market, information producers were quite comfortable in letting the libraries enjoy the "free ride" of offering their information products without any compensation for the free use. It was good public relations and a "feel good" partnership.

The mass digitization of the information changed that relationship.

I really think what the google technology does, and what the research libraries agreed to when they chose to work with google four years ago to find an "economical" way to digitize their collections, is create a private market version of "public lending right."

See you on Day 33.

Library Perspective. Interview with Emily Sheketoff, Executive Director of the Washington Office of the American Library Association, CSPAN, 11/06/2008. [30 minutes, Flash Video].

Sheketoff discusses federal copyright, privacy, and piracy policy and how those issues could be effected by President-Elect Barack Obama’s administration. Paul Sweeting, editor of Content Agenda was the guest host.

We've been following the Obama transition team's change.gov site for a few weeks now and were dismayed that the change.gov site had been copyrighted -- remember, government documents, including Web sites in the .gov domain, are in the public domain according to copyright law.

I was just alerted by a tweet from John Wonderlich, that change.gov has changed their copyright statement to a Creative Commons attribution license -- meaning visitors are 1) free to Share — to copy, distribute and transmit the work; and 2) to Remix/adapt the work as long as they "attribute the work in the manner specified by the author or licensor." That CC license is "approved for free cultural works."

While I applaud the change to a creative commons license as a step in the right direction, I still believe that change.gov -- and all .gov sites -- need to be explicitly in the public domain (which as you remember is a statutory requirement According to Copyright Law 17 U.S.C. § 105). If site administrators wanted the geek street cred that comes with creative commons, why didn't they choose the creative commons public domain dedication?

This is an open government issue; the public domain is critical to open and transparent government operations. If the Obama administration is serious about ethics and open government, then they will change their copyright statement on change.gov and donate the site's information to the public domain. Is that so much to ask? If you agree, please contact the change.gov administrator(s) and politely but strongly urge them to support the public domain. I just did.

--that is all.

Bonnie Klein of the Defense Technical Information Center (DTIC) has pointed out a problem of publishers making a false claim of copyright to works of the U.S. Government. Using Google Books, she discovered that one entrepreneur "has assigned ISBNs and lists his company as Publisher of government documents" harvested from the DTIC. She identifies the publishers Storming Media, Diane Publishing, and Penny Hill Press as republishers of government information.

• Google Book Search & Resellers of GovWorks by Bonnie Klein, posting to liblicense-l, Mon, 3 Nov 2008 18:30:25 EST

We have mentioned Bonnie's research here before. See:Google and the Search for Federal Government Information.

Cory Doctorow, co-editor at boingboing.net, Fellow for the Electronic Frontier Foundation, and contributor to Wired, Popular Science, the New York Times, etc., has published a book called Content: Selected Essays on Technology, Creativity, Copyright, and the Future of the Future and it's available for download on his website...for free! Cory is an advocate of the Creative Commons organization, using some of their licenses for his own books.

Here is an excerpt:

Back in 1985, the Senate was ready to clobber the music industry for exposing America’s impressionable youngsters to sex, drugs, and rock-and-roll. Today, the Attorney General is proposing to give the RIAA legal tools to attack people who attempt infringement.

Through most of America’s history, the U.S. government has been at odds with the entertainment giants, treating them as purveyors of filth. But not anymore: today, the U.S. Trade Rep is using America’s political clout to force Russia to institute police inspections of its CD presses. (Savor the irony: post-Soviet Russia forgoes its hard-won freedom of the press to protect Disney and Universal!)

How did entertainment go from trenchcoat pervert to top trade priority? I blame the “Information Economy.”

No one really knows what “Information Economy” means, but by the early ’90s, we knew it was coming...

Recently John McCain was in the news for advocating Fair Use for his campaign videos on YouTube (Update: McCain protests YouTube's removal of his campaign videos, Heather Havenstein, Computerworld, October 15, 2008). It is an interesting story and now Lawrence Lessig puts it all in perspective for us:

• Copyright and Politics Don’t Mix, by Lawrence Lessig, Op-Ed, The New York Times, October 21, 2008.

While the issue at hand deals with political speech, the same problems and issues apply to government information.

Lessig says that the "explosion in citizen-generated political speech has been met with a troubling response: the increasing use of copyright laws as tools for censorship." His solution is to change the copyright law:

It would be far better if copyright law were narrowed to those contexts in which it serves its essential creative function -- encouraging innovation and ensuring that artists get paid for their work -- and left alone the battles of what criticisms candidates for office, and their supporters, are allowed to make.

While a lot of government information is free of copyright, or is supposed to be, strict interpretation and aggressive use of the Digital Millennium Copyright Act has led to restrictions on access to government information. Perhaps the most visible example is in Google Books, which blocks full text access to its scans of government publications because they "might" be covered by copyright. (See, for example, Oversight of U.S. Government Intelligence Functions: Hearings Before the Committee on Government Operations, United States Senate, Ninety-fourth Congress, Second Session, Published by U.S. Govt. Print. Off., 1976.)

But copyright is only part of the problem that limits access to what should be free, open, re-usable, government information. Even if we get reasonable changes to the Copyright law, we will need more. Governments will have want to make their content freely usable. They will have to apply aggressive open-access policies to their own content. This will mean avoiding technological locks (DRM), eschewing contractual and licensing restrictions on content, actively promoting and using open formats for digital materials, and actively labeling content as open and freely usable and re-usable.