As you may know, works of the U.S. Government are not protected by copyright in the U.S. (17 USC §105), but we often discover copyrighted government publications that one would reasonably think would be in the public domain and, more recently, we see works that were treated as public domain in print suddenly being treated as copyrighted when they are converted to digital. No matter how clear the law is, this can lead to confusing situations. Take the case of a movie produced by the United States Information Agency. USIA was was prohibited by law from distributing films in the United States, but a Congressional Resolution did authorize USIA to sell six master copies of the film to the John F. Kennedy Center for the Performing Arts. Then Carl Malamud obtained a copy of a video tape of the movie from NTIS, digitized it, and posted it at the Internet Archive. Now the Kennedy Center is claiming that the film is copyrighted and that the Center has exclusive rights for distribution and NTIS has requested that Malamud take down the digital copy he created.

The Resolution (Congressional Record, August 26, 1965, p.21256) says:

Accordingly, the United States Information Agency is authorized to make appropriate arrangements to transfer to the trustees of the John F. Kennedy Center for the Performing Arts six master copies of such film and the exclusive rights to distribute copies thereof, through educational and commercial media, for viewing within the United States. The net proceeds resulting from any such distribution shall be covered into the Treasury for the benefit of the John F. Kennedy Center for the Performing Arts.

The film begins with a notice (at 00:00:25) that says the film "is presented in the United States by the John F. Kennedy Center for the Performing Arts, Washington DC, in accordance with a resolution of the Congress." It ends (at 1:26:08) with what looks like a copyright notice (it is hard to read in the digital version) that (I think) says "Copyright 1964 by the National Center for the Performing Arts, All rights reserved." I assume that these were added by the Center to the original film.

What will Malamud do? He asks you to advise him:

One agency of the federal government has issued a takedown notice to another agency of the federal government, which in turn demanded that we remove a film from the Internet. Not knowing what to do, I have appealed for your help.

I hereby bring this plea before the Court of Appeals for Wonderful Things, appealing to a jury of my peers, all happy mutants, for their verdict.

Read the complete story here:

• US government sends itself a takedown notice over JFK documentary: you decide what to do!, posted by Cory Doctorow, BoingBoing (Apr 26, 2013).

And watch the movie while you can:

• John F. Kennedy: Years of Lightning/Day of Drums (1964), United States Information Service, AVA11312VNB1, 1964. (Run time: 1h 26' 18")

  The program dramatizes the thousand days of John F. Kennedy's presidency, from his inauguration in 1961 to his tragic death on November 22, 1963. The videotape emphasizes Kennedy's and America's hopes for his term as president. Uploaded by Public.Resource.Org under Joint Venture NTIS-1832 with the National Technical Information Service.

Some libraries, library organizations, and library managements believe they can "manage" their collections better by first digitizing historic collections of books and other paper and ink information sources and then weeding their collections of these materials. Such projects will reduce the number of copies held in the aggregate by all libraries (Lavoie, Schonfeld, Schottlaender, Yano). One problem that these projects often overlook is the subtle (and not so subtle) differences between the legal standing of paper and digital objects with regard to access and use. Too often, creators of digital objects attempt to impose copyright restrictions on the digital objects even if the originals were in the public domain. Additionally, digital objects are often encumbered with licenses and technological restrictions that limit how they can be used and who can use them. The digital objects are often just not as accessible or as usable as the original print. How bad would it be if we threw away our print collections in favor of digital collections that are less accessible and less usable?

Randal C. Picker, who is Leffmann Professor of Commercial Law and Senior Fellow at the The Computation Institute of the University of Chicago and Argonne National Laboratory University of Chicago Law School, has written a paper and created a presentation on just this issue.

• Picker, Randal. 2013. Access and the Public Domain. Rochester, NY: University of Chicago Institute for Law & Economics. Coase-Sandor Institute For Law And Economics Working Paper No. 631.
• Picker: Access and the Public Domain (Fordham IP Talk), YouTube (Apr 6, 2013).

  "This is a version of a talk that I gave at the Fordham IP Conference on April 5, 2013. It is based on my paper Access and the Public Domain, which was published in the San Diego Law Review."

  
  

In the paper, he considers how legal issues affect digitization projects such as The Internet Archive, JSTOR, Google Book Search, HathiTrust, and THOMAS.

His take-aways from the presentation are:

1. Access rights and use rights are different animals and operate in different legal settings.
2. Even though the public domain is coming online, the financing models for the projects will result in efforts to restrict use ina variety of ways.
3. Those efforts will be situated at the intersection of technology controls, contract, terms of use, copyright and the CFAA (Computer Fraud and Abuse Act).
4. Perhaps a truly public public domain, something like the DPLA perhaps, is required to avoid the path of non-copyright control over the public domain.

Hat Tip: ARL Policy Notes.

Endnotes

Lavoie, Brian F., Constance Malpas, and J.D. Shipengrover. 2012. Print Management at “Mega-scale”: a Regional Perspective on Print Book Collections in North America. Dublin, OH: OCLC Research. http://www.oclc.org/research/publications/library/2012/2012-05.pdf (Accessed July 19, 2012).

Schonfeld, Roger C., and Ross Housewright. 2009. 28 What to Withdraw: Print Collections Management in the Wake of Digitization. Ithaka S+R. http://www.sr.ithaka.org/research-publications/what-withdraw-print-colle....

Schottlaender, Brian E.C. et al. 2004. 82 Collection Management Strategies In A Digital Environment, A Project Of The Collection Management Initiative Of The University Of California Libraries, Final Report to the Andrew W. Mellon Foundation. University of California, Office of the President, Office of Systemwide Library Planning. http://www.ucop.edu/cmi/finalreport/index.html.

Yano, Candace Arai, Z.J. Max Shen, and Stephen Chan. 2008. Optimizing the Number of Copies for Print Preservation of Research Journals. Berkeley, CA: University of California Berkeley, Industrial Engineering & Operations Research. http://www.ieor.berkeley.edu/~shen/webpapers/V.8.pdf.

Shinjoung and I were stunned when we heard the news early yesterday morning that our friend -- and supreme friend of libraries and the Internet! -- Aaron Swartz left this world late friday evening. Aaron was deeply committed to and passionate about internet freedom and making information and knowledge as available as possible. To those ends, he worked on many projects large and small in his short but influential life. He was 26.

The *many* heartfelt remembrances from communities as diverse as journalism, law and open source tech -- witness Rick Perlstein, Lawrence Lessig, Glenn Greenwald, Karl Fogel -- attest to Aaron's supreme impact on the world at large (and that's no hyperbole!).

Before I had even heard of his tragic demise, a few colleagues and I were in the midst of writing letters of support for Aaron's nomination for this year's James Madison award from the American Library Association (ALA). This award, named in honor of President James Madison, was established by the ALA in 1986 to honor individuals or groups who have championed, protected and promoted public access to government information and the public’s “right to know” on the national level. I hope now that ALA will award Aaron posthumously!

We're helping Archive-it staff harvest a Web archive of Aaron's work, writings, images, videos, and remembrances. If you've got a URI that you'd like to be included in the archive, please paste it to this Google Doc.

Remembrances of Aaron, as well as donations in his memory, can be submitted at http://rememberaaronsw.com

The world will miss you Aaron. Be at peace my friend!

Happy 2013 FGI readers! As we begin the new year, it's always good to be reminded every year by Jennifer Jenkins and James Boyle and rest of the fine folks at the Duke Center for the Study of the Public Domain about the number of books, film and music that could have entered the public domain this year were it not for the 1976 Copyright Act. It's a fascinating and depressing read, especially the scientific material that may never become truly free and open knowledge -- not to mention the Scifi ("Minority Report" and Around The World in 80 Days -- the movie -- should have been "Around The World in 34,699 Days"), music, films, and literature.

Current US law extends copyright for 70 years after the date of the author’s death, and corporate “works-for-hire” are copyrighted for 95 years after publication. But prior to the 1976 Copyright Act (which became effective in 1978), the maximum copyright term was 56 years – an initial term of 28 years, renewable for another 28 years. Under those laws, works published in 1956 would enter the public domain on January 1, 2013, where they would be “free as the air to common use.” Under current copyright law, we’ll have to wait until 2052. And no published works will enter our public domain until 2019.

What books would be entering the public domain if we had the pre-1978 copyright laws? You might recognize some of the titles below.

* Winston Churchill, A History of the English-Speaking Peoples, Volume I and Volume II
* Philip K. Dick, Minority Report
* Ian Fleming, Diamonds are Forever
* Fred Gibson, Old Yeller
* Billie Holiday, Lady Sings the Blues
* Alan Lerner, My Fair Lady
* Eugene O’Neill, Long Day’s Journey into Night
* John Osborne, Look Back in Anger
* Dodie Smith, 101 Dalmatians

Here are a few of the movies that we won’t see in the public domain for another 39 years.

* Around the World in 80 Days
* The Best Things in Life are Free
* Forbidden Planet
* Godzilla, King of the Monsters!
* It Conquered the World
* The King and I
* The Man Who Knew Too Much (1956 remake by Alfred Hitchcock of his 1934 British film)
* Moby Dick
* The Searchers (1956 film version with John Wayne from Alan Le May’s 1954 novel)
* The Ten Commandments (1956 version by Cecil B. DeMille, who also directed a similar film in 1923)

[HT BoingBoing!]

Happy Public Domain Day! Welcome to the Public Domain Louis Brandeis, James Joyce, Jelly Roll Morton, Virginia Woolf and others. John Mark Ockerbloom has a list of 5 things that we can do in the US to improve access to public domain works.

It’s New Year’s Day again, and in much of the world, this means another year’s worth of works enter the public domain. That’s a cause for celebration, as Europe and many other countries that have “life+70 years” copyright terms welcome works by James Joyce, Virginia Woolf, Jelly Roll Morton, and Elizabeth von Arnim into the public domain. The Communia Project’s Public Domain Day website focuses on works by these and many other authors that are entering (in many cases, re-entering) the public domain in “life+70 years” countries. Meanwhile, folks in Canada, New Zealand, and other countries that have held the line at the “life+50 years” terms of the Berne Convention can now freely enjoy the works of people like James Thurber, Ernest Hemingway, and H.D.

There’s not so much excitement about Public Domain Day in the US, where no published works are scheduled to enter the public domain for another 7 years, due to a 20-year copyright extension enacted in 1998.

[HT John Mark Ockerbloom via LISnews!]

At the last couple of depository library council meetings, I've heard comments from documents librarians -- especially from librarians at smaller institutions -- that they'd love to participate in the digitization process of historic government documents, but for various reasons (lack of $$, staffing, time, technical infrastructure etc) could not undertake large scale digitization projects.

Now there's a way for lots of libraries to chip in on the greater goal of increased access to historic government documents with very little $$ or infrastructure. We've mentioned before about BookLiberator and DIYbookscanner, two projects working on low cost hardware solutions for digitizing books using off the shelf digital cameras and free opensource software called Book Scan Wizard.

But there were still 2 pieces missing to make the whole workflow run smoothly for libraries and government documents collections of all sizes. The third piece to the puzzle just became a reality with yesterday's announcement that Book Scan Wizard had teamed up with the Internet Archive to provide automatic uploads of scans to the Internet Archive (directions and more information here). Hardware: check. Software: check. Digital infrastructure: check.

With the new version of Book Scan Wizard, or even through just uploading directly to the Internet Archive, any PDF composed of images of book pages or organized zip file filled with images of book pages will be automatically processed. The Internet Archive’s servers will then automatically perform optical character recognition (OCR) on the book and make a pdf, epub, kindle (mobi), daisy, djvu, and text file copy of the entire book available for download by anyone, anywhere. You can see a sample book from this process to get a better idea. All this happens within a few hours of the book being uploaded and then anyone can download it. This is free OCR for anyone in the world.

Now there's one last piece needed: Scan on demand. This idea has already been put into practice by the Internet Archive's Open Library and their partnership with the Boston Public Library. What we need is to open up the Catalog of Government Publications (CGP) -- which will soon include over 1 million records from GPO's historic shelflist spanning 1870s - 1992 -- similar to the way the BPL's scan on demand project (now retired it seems) allowed users to request a scan of a public domain book directly from the Open Library catalog.

GPO could manage this scan on demand process -- or allow libraries to pick and choose documents from the CGP -- connect the bibliographic metadata from the historic shelflist, and upload to both the Internet Archive and FDsys. The circle is complete. Am I missing anything? Would love to hear readers' thoughts.

Congressional Research Service (CRS) Reports are incredibly rich sources for budget-related information, and analyses of domestic social policy, foreign Affairs, defense and trade, and science and industry. But for many years, CRS has not provided direct public access to its reports, requiring citizens to request them from their Members of Congress -- and libraries to purchase them from Penny Hill Press, LexisNexis and other private publishers.

With CRS Director Daniel Mulhollan retiring in April, 2011, this was an opportune time for 38 open government groups -- including FGI! -- to send a letter to Librarian of Congress James Billington asking him to appoint a new CRS Director who will facilitate free public online access to CRS reports.

Here's the letter (PDF also available from OpenTheGovernment):

February 25, 2010
James H. Billington
Librarian of Congress
The Library of Congress
101 Independence Ave, SE
Washington, DC 20540

Dear Dr. Billington:

We the undersigned organizations concerned with government openness and accountability are writing to urge you to appoint a Director of the Congressional Research Service (CRS) who will work with Congress to provide online free public access to the unclassified, non-confidential, taxpayer-funded reports produced by CRS.

The public needs access to these non-confidential CRS reports in order to discharge their civic duties. American taxpayers spend over $100 million a year to fund the CRS, which generates detailed reports relevant to current political events for lawmakers. But while the reports are non-classified, and play a critical role in our legislative process, they have never been made available in a consistent and official way to members of the public.

Predictably, to fill the public void left by the CRS, several private companies now sell copies of these reports at a price. This means that non-confidential CRS reports are readily available to lobbyists, executives and others who can afford to pay. Meanwhile, the vast majority of people lack the information necessary to even request reports from their Members of Congress.

In 1822, James Madison explained why citizens must have government information: "A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives." In the spirit of Madison, we ask you to appoint a Director of CRS who will help advance the goal of online free public access to CRS reports.

Representatives from the undersigned organizations would be happy to meet with you or your staff at any time to discuss this important issue. Please contact Amy Bennett, Program Associate, OpenTheGovernment.org (afuller@openthegovernment.org or 202-332-6736), at your convenience.

Sincerely,

AhEeCOSH
American Association of Law Libraries
American Library Association
American Society of News Editors
Association of Research Libraries
Bill of Rights Defense Committee
CAUS
Center for Democracy and Technology
Center for Media and Democracy
Center for Responsive Politics
Citizens for Responsibility and Ethics in Washington (CREW)
Defending Dissent Foundation
DownsizeDC.org, Inc.
Essential Information
Federation of American Scientists
Free Government Information
Government Accountability Project (GAP)
iSolon.org
Knowledge Ecology International
Liberty Coalition
MapLight.org
National Coalition Against Censorship
National Freedom of Information Coalition
National Security Counselors
No More Guantanamos
OMB Watch
OpenTheGovernment.org
Point of Order
Project On Government Oversight (POGO)
Public Citizen
Reporters Committee for Freedom of the Press
RS&S INTERNATIONAL, LLC
Society of Academic Law Library Directors
Society of Professional Journalists
Special Libraries Association
Sunlight Foundation
University of Missouri Freedom of Information Center
Washington Coalition for Open Government

This is pretty ridiculous. The FBI recently sent a letter to Wikipedia (PDF) demanding that Wikipedia take down the FBI seal shown on the wikipedia article on the Federal Bureau of Investigation. Does the FBI have nothing better to do than hassle Wikipedia (who's written a thorough and informative description of the FBI)?! As one Redditor named TheCid mused: "Somehow, I think a shit-for-brains lawyer at the FBI thinks Wikipedia and Wikileaks are the same organization, and decided to try to get at the latter via the former."

The problem, those at Wikipedia say, is that the law cited in the F.B.I.’s letter is largely about keeping people from flashing fake badges or profiting from the use of the seal, and not about posting images on noncommercial Web sites. Many sites, including the online version of the Encyclopedia Britannica, display the seal.

Other organizations might simply back down. But Wikipedia sent back a politely feisty response, stating that the bureau’s lawyers had misquoted the law. “While we appreciate your desire to revise the statute to reflect your expansive vision of it, the fact is that we must work with the actual language of the statute, not the aspirational version” that the F.B.I. had provided.

F.B.I., Challenging Use of Seal, Gets Back a Primer on the Law
By JOHN SCHWARTZ
Published: August 2, 2010

[Thanks GovTwit!]

Open source intelligence -- not to be confused with Open-source software -- is "a form of intelligence collection management that involves finding, selecting, and acquiring information from publicly available sources (my emphasis) and analyzing it to produce actionable intelligence." Libraries in the Federal Depository Library Program have since the early 1940s received output from this process in the form of Foreign Broadcast Information Service (FBIS) materials *for free*. FBIS materials offered translation of foreign news sources, and via the Joint Publications Research Service (JPRS) foreign language books, newspapers, journals, unclassified foreign documents and research reports. FBIS became the World News Connection in 1996, but it is a severely limited version (about half) of what's available for internal government use.

The Federal of American Scientists has more on FBIS. Check out FBIS and JPRS materials in library collections near you!

All that background as context to a very troublesome turn of events as described by a recent post on the govdoc-l list (see the email below stripped of personal information). This important piece of the govt information universe is now only available via a very expensive commercial database (World News Connection), depriving the academic and larger research communities of full access to all that is done by FBIS at taxpayer expense. Please help us by contacting the Open Source Center (OSCinfo@rccb.osis.gov 202-338-6735, or 1-800-205-8615) and Robert Tapella (PublicPrinter@gpo.gov) at the Government Printing Office and request that the Open Source Center offer free access of opensource.gov to depository libraries. Thanks!

>>>>>>>>>>>>>>>>>>>>>>>>

Date: Wed, 24 Feb 2010 10:25:58 -0600
Subject: OpenSource.gov access

Has any library successfully gained access to OpenSource.gov?

For those who are unfamiliar with this resource, here is the what their web page says about them:

"OpenSource.gov provides timely and tailored translations, reporting and analysis on foreign policy and national security issues from the OpenSourceCenter and its partners. Featured are reports and translations from thousands of publications, television and radio stations, and Internet sources around the world. Also among the site's holdings are a foreign video archive and fee-based commercial databases for which OSC has negotiated licenses. OSC's reach extends from hard-to-find local publications and video to some of the most renowned thinkers on national security issues inside and outside the US Government. Accounts are available to US Government employees and contractors. Register today to see what OpenSource.gov has to offer."

When we tried to register, they informed that we would have to justify why we needed access to the information and that we could get the information through World News Connection (via Dialog) OR, and I quote:

"In addition to the World News Connection, individuals may be able to access OSC products through university libraries, or the Federal Depository Library Program. Many Depository Libraries received CDs from the US Government Printing Office that contain select Open Source Center products." [The CDs that they are referring to are the FBIS materials (PREX 7.10/3:)]

In our response, we informed them that WNC was an expensive database they we could not afford and that their information regarding OSC being distributed through the FDLP was sorely out of date since the CDs have NOT been distributed for over 5 years.

In their response, they say they are considering adding additional agencies such as the Federal Depository Library (FDL) as part of the approved list of agencies in OpenSource.gov., but such a review would take a considerable amount of time to do. (I took this to mean, when 'ell freezes over.) Now here is the strange part--they think the FDLP is under the Dept of Interior and we could sign up that way--but our email address would need to have .gov or .mil in it. I am not sure, but I think they are actually referring to the Natural Resource Library in the U.S. Dept of Interior, which is a federal depository library, with which we are not associated, so this is NOT an option.

At this point I am stymied as to how we can have access to information that was formerly available FOR FREE through depository but is now only available through commercial ($$$) means. I know that GPO is aware that the CDs are no longer being distributed because of the creation of the OpenSource database. The only message I could find about this situation via the GOVDOC-L archives was from 2007 when they said "FDLP is still working with the agency OSC to get an agreement with how we are going to access their database." It is now 3 years later and we still do not have access to this information.

In the meantime, we have a professor on campus doing research in Middle East affairs and would like to have access to more recent information than what we have in our library via microfiche and CDs. We can not afford WNC, so I don't know what else we can do--except get access to OpenSource.gov. If anyone has been successful, I would be happy to hear how you did it.

The folks at Communia the European Thematic Network on the digital public domain have laid out a clear, concise, easy to understand Public Domain Manifesto calling for the preservation and strengthening of the public domain and calling on cultural heritage organizations (including libraries!) to ensure that works in the Public Domain are available to all of society. Please read the manifesto and consider signing on.

On a side note, This isn't the first manifesto on the block. Also check out the Charter for Innovation, Creativity and Access to Knowledge and Columbia Professor of Law Eben Moglen's dotCommunist Manifesto (coming out of the Free Software movement). These three together show that there's a significant number of people around the world who think the public domain is something that's too important to cultures to let go by the wayside.

General Recommendations

1. The term of copyright protection should be reduced.
2. Any change to the scope of copyright protection (including any new definition of protectable subject-matter or expansion of exclusive rights) needs to take into account the effects on the Public Domain.
3. When material is deemed to fall in the structural Public Domain in its country of origin, the material should be recognized as part of the structural Public Domain in all other countries of the world.
4. Any false or misleading attempt to misappropriate Public Domain material must be legally punished.
5. No other intellectual property right must be used to reconstitute exclusivity over Public Domain material.
6. There must be a practical and effective path to make available 'orphan works' and published works that are no longer commercially available (such as out-of-print works) for re-use by society.
7. Cultural heritage institutions should take upon themselves a special role in the effective labeling and preserving of Public Domain works.
8. There must be no legal obstacles that prevent the voluntary sharing of works or the dedication of works to the Public Domain.
9. Personal non-commercial uses of protected works must generally be made possible, for which alternative modes of remuneration for the author must be explored.

[Thanks BoingBoing!]