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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 [w: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
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.
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.”
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.
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.