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Oregon Statutes Freed of Copyright
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.Continue reading
Happy 100th birthday First Sale Doctrine!!
100 years ago today (June 1, 1908) the [w: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. ยง 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!] Continue reading
Court Invalidates Part of Copyright Remedy Clarification Act
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. Continue reading
Air Force lawyers send DMCA notice to YouTube
Air Force lawyers have issued a DMCA take-down notice to YouTube (here's the PDF of the DMCA notice), demanding the removal of a publicly available video promoting its Cyber Command project. There's only one problem with that: material produced by federal agencies is by law in the public domain and not copyrighted. And the Air Force website has a privacy policy that states, "Information presented on the Air Force Recruiting website is considered public information and may be distributed or copied."
It's cyber war! Lawyers representing the Air Force's elite electronic warriors have sent YouTube a DMCA takedown notice demanding the removal of the 30-second spot the Air Force created to promote its nascent Cyber Command. We'd uploaded the video to share with THREAT LEVEL readers.Continue reading
Copyfraud
- There is a good article in Searcher Magazine that documents specialists and other interested in public domain materials should read:
- Title: 'Copyfraud' and Public Domain Works.
- Author: Ebbinghouse, Carol
- Source: Searcher; Jan2008, Vol. 16 Issue 1, p40-52, 9p
- Ms. Ebbinghouse does a good job of explaining how some try to usurp the public domain through fraudulent notices and/or slight alterations of materials. Her opening gives a good flavor of what's to come:
You find a PDF version of the Federalist Papers on the internet that is just what you need, but it carries a copyright date of 2001. Now that's odd, considering that the last Federalist paper was written and published in 1788. Cautious, you find an ASCII text version, but it has a copyright date of 1999. Can you download this one? Does the fact that one is an image and the other plain text make any difference? And how the heck does anything written in the 18th century end up with post-1923 copyright dates?
Can someone legitimately move public domain text into copyright? What about when you go to an archive, only to find open source and nonpublic domain titles mixed in with public domain items, but the archive seems to put restrictions on your subsequent use of everything (no copying without permission; no commercial re-use, etc.)?
- What leads some vendors to attempt to convince people that public domain materials are really under copyright? In part, because there's little legal cost to doing so, According to Ms. Ebbinghouse:
- As Jason Mazzone points out, "Copyright law suffers from a basic defect: The law's strong protections for copyrights are not balanced by explicit protections for the public domain. Accordingly, copyright law itself creates strong incentives for copyfraud. The limited penalties for copyfraud under the Copyright Act, coupled with weak enforcement … give publishers an incentive to claim ownership, however spurious, in everything. Although falsely claiming copyright is technically a criminal offense under the Act [17 U.S.C. §506(c)] prosecutions are extremely rare. Moreover, the Copyright Act provides no civil penalty for claiming copyrights in public domain materials. … [and] no federal agency is specially charged with safeguarding the public domain."
- Reading this paragraph gives rise to an interesting idea. What if there were substantial fines for removing works from the public domain and the fines were used to run an orphan copyright registry that people could use without fear of prosecution. What if the American Library Association could get together with large foundations and start suing corporations for violations of the public domain? Would it lead to a world where if you weren't certain of a work's, you presumed it was public domain for fear of the consequences of an illegal claim of copyright? We could live with that.
- Waking up from that daydream, I want edto point out this articles to readers of FGI because so much government information is both public domain and often repackaged as being in copyright. And occaisionally like the first edition of the Iraq Study Group report, government documents have copyrighted materials embeded into them. Ms. Ebbinghouse's article can help you navigate these difficult issues and help you deal with the copyfrauds out there.
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