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.

The Bill: Fair Copyright in Research Works Act (HR 6845)

The Hearings: Hearing on: H.R. 6845, the "Fair Copyright in Research Works Act" Thursday 09/11/2008 - 1:00 PM House Committee on the Judiciary, Subcommittee on Courts, the Internet, and Intellectual Property. [streaming RealPlayer video]

News Reports:

• New Bill Would Forbid Copyright Transfer as a Condition for Federal Funding Library Journal Academic Newswire, September 11, 2008. "If passed, measures like the recently enacted NIH public access policy, which requires investigators who accept taxpayer funds to deposit their final papers in the PubMed Central repository and give the agency a non-exclusive right to offer free access within a year, would be prohibited."
• At Hearing, Witness Says NIH Policy Will “Destroy” Commercial Scientific Publishing Library Journal Academic Newswire, September 11, 2008. "Not only was the legislation motivating the hearing barely discussed, the testimony and the questions asked by committee members looked far more to the economic future of science publishing than to public access to taxpayer funded research." Former Register of Copyrights Ralph Oman bluntly told lawmakers that in his opinion, the NIH mandate would “destroy the market” for commercial scientific journals, and cause a “dilution” of copyright.
• Congressional Hearing Over Public Access Filled With High Drama By Jennifer Howard , The Chronicle of Higher Education, September 12, 2008 [subscription required, but freely available here for a short time.]

  A life-and-death battle is going on over public access to federally financed research—life for taxpayers and many scientists, and death for publishers. Or so each side claims. That battle, whose outcome will affect many university researchers, kicked into high gear on Capitol Hill yesterday, as the combatants debated the merits of a bill that would curtail the National Institutes of Health's public-access policy.

See also:
A Perfect Storm of Bad Copyright Legislation By Alex Curtis, Public Knowledge, on September 10, 2008.

[Update: HA! StanfordLawLibrarians cross-posted a similar story almost at the same exact moment on FGI and over at LegalResearchPlus. So I deleted their post and include this link to their story as well!]

Carl Malamud is itching for a copyfight, and when he wins(!), the American public will be better informed due to better access to state, county and federal regulations, building codes, plumbing standards, criminal laws etc.

Code city is now open and the readme file is a graphic novel (view it as a Flickr slideshow here!) explaining the travesty of state and local codes being copyrighted rather than in the public domain and freely available online. Code city included full-text scans of 43 state codes -- including the entire California Title 24 Safety Codes! -- and several city codes (Little Rock, Denver, Phoenix, Wilmington, Honolulu, St Louis, Las Vegas).

The goal of the project is to get as many city, county and state safety and building codes and regulations out on the open Web in a standardized digital format (YAY open standards!!) so that others can use the documents to design Web sites with more modern search and presentation features, "social Web sites where, for instance, plumbers could provide useful annotations to building codes -- perhaps blending Wikipedia with Facebook for a more useful law site." If/when he's successful, citizens (not to mention libraries!) will no longer be forced to shell out hundreds of dollars (CA code is $1,556 for a digital copy, or $2,315 for a printed version!). And that's a very good thing!!

California's building codes, plumbing standards and criminal laws can be found online.

But if you want to download and save those laws to your computer, forget it.

The state claims copyright to those laws. It dictates how you can access and distribute them -- and therefore how much you'll have to pay for print or digital copies.

It forbids people from storing or distributing its laws without consent.

That doesn't sit well with Carl Malamud, a Sebastopol resident with an impressive track record of pushing for digital access to public information. He wants California -- and every other federal, state and local agency -- to drop their copyright claims on law, contending it will pave the way for innovators to create new ways of searching and presenting laws.

"When it comes to the law, the courts have always said there can be no copyright because people are obligated to know what it says," Malamud said. "Ignorance of the law is no excuse in court."

Malamud is spoiling for a major legal fight.

He has begun publishing copies of federal, state and county codes online -- in direct violation of claimed copyright.

--Nathan Halverson, Press Democrat, Wednesday, September 3, 2008

In the Summer 2008 issue of Dttp: Documents to the People, Kris Kasianovitz has a thoughtful overview of copyright of state and local documents and how that interacts with efforts to digitize such documents.

The article:

Why Care About Copyright? by Chris Kasianovitz. Dttp, v.36, no. 2, Summer 2008, p. 12

Gives a history of state/local copyright and argues that for history's sake and on the principle of free access to government information, copyright law ought to be amended to give state and local gov't documents the same public domain status as federal documents. We at FGI are in hearty agreement with that!

As far as I can tell, Kris' article is not freely available on line, but some of the history she covers is also available on our government copyright page at http://freegovinfo.info/copyright.

The whole Summer 2008 Dttp is well worth the read. There is also a freely available web supplement that you should check out at http://wikis.ala.org/godort/index.php/DttP_Supplements_v36_n2 if for no other reason than that FGI's own James Jacobs has an article on using del.icio.us for government documents.

As noted here before, Oregon has been going through a challenge to its copyrighted statutes. The battle appears to be over now and the the statutes are free! mmmm... we love free government information!

On June 19th the Legislative Counsel held a hearing with activist Carl Malamud from Public.Resource.org and others to discuss the issue.... In the end the Legislative Counsel voted to not assert copyright over the Oregon Revised Statutes.

This is a great victory for openness and democracy.

100 years ago today (June 1, 1908) the First-sale doctrine was established in the US Supreme Court case Bobbs-Merrill v. Straus, and became codified into the Copyright Act of 1976 (17 U.S.C. § 109). First sale doctrine -- which allows the purchaser of a copyrighted work to sell or give away that work without permission once it has been obtained -- is the pillar and copyright protection upon which libraries have been able to build their collections and services to their communities.

Ironically, today libraries find themselves in an untenable situation. The First Sale Doctrine continues to move toward the margins as more and more information goes digital. Much of this content is not protected by first sale because libraries license access from vendors. Perhaps that's why Ross Dawson, on his extinction timeline, has libraries going extinct in 2019, a year before copyright itself. Or maybe Slate's slideshow "borrowed time" is closer to being right when they describe the future of libraries as a "mutating role as urban hangout, meeting place, and arbiter of information, the public library seems far from spent."

I'm hopeful about the future of libraries, but think that librarians need to be more conscious and proactive about digital content, to negotiate licenses with vendors that allow for perpetual access -- if not actually being able to host digital content on their own servers -- as well as libraries being able to share their content with other libraries (aka interlibrary loan) and "shelve" or repurpose their digital content in ways that serve their local communities. Only if digital content has the same first sale protection as paper content will libraries continue to serve their traditional (and critical) role as cultural repositories.

[Thanks for the heads-up Everybody's Libraries!]

Mary Minow writes that a significant part of the Copyright Remedy Clarification Act of 1990 (CRCA) has been struck down by a California Southern District Court ruling.

In 2006, a marketing research firm sued the CSU system. It alleged that San Diego State University, which had been hired in 2004 to perform annual fiscal impact analyses for the Holiday Bowl games (SDSU had been hired because the marketing research firm, which had performed the analyses previously, had increased its fees), had misappropriated and plagiarized the marketing research firm's earlier reports.

The CRCA reads, in part, that "Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State ... shall not be immune, under the Eleventh Amendment ... from suit in Federal Court ... for a violation of any of the exclusive rights of a copyright owner ...."

In theory, this means that states are now in the clear from being targeted by the federal claims that the CRCA was worded to allow. As the District Court ruling states, "The CRCA was passed with the intent to subject states to liability for copyright infringement."

The major wrinkle is that the ruling appears to protect only state agents or employees who are acting in their "official capacity." As Minow's post points out, there are any number of steps that a plaintiff could take to establish legally that a state employee was not acting in his or her "official capacity." The most germane step would be that an individual sued under federal law (and the CRCA being federal law) can be classified as having acted in his or her "individual capacity" if the plaintiff can establish that an alleged violation was in contravention of protected federal copyright.

The ruling, Marketing Information Masters Inc. v. The Board of Trustees of the California State University System (.pdf), is here. More pleadings in the case are available here.