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Minow: Tell us about the new Digital Copyright Slider. How does it work and what is its purpose?

Brewer: The “Is it Covered by Copyright?” Slider was created as the first in a series of simple tools to help librarians, educators and others with their copyright questions.We first created a print version as a slide chart, but realized that a digital version could be much more useful, though perhaps not as fun to play with. Thus, the digital version was born.Both versions of the slider help the user to determine whether or not a work is in the public domain in the United States , and, if not, what the period of protection is.

Our next tool, a Section 108 “spinner” (library/archival reproductions for preservation, replacement or for users) will be released shortly both in print and online, so stay tuned.

Minow: What is the American Library Association Office for Information Technology Policy Copyright Committee?

Brewer: The American Library Association Office for Information Technology Policy Copyright Advisory Subcommittee promotes copyright education programs and initiatives and advises the OITP copyright specialist. We meet twice a year at ALA annual and mid-winter. Our meetings are open to any interested ALA members.Many members are actively involved in the Copyright Advisory Network at http://www.librarycopyright.net/

MichaelBrewer.jpg Michael Brewer is Team Leader for Undergraduate Services, University of Arizona Library and a member of the American Library Association Office for Information Technology Policy Copyright Advisory Subcommittee. 

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The Stanford University Libraries are pleased to announce that the full dataset for its Copyright Renewal Database is now available for download.

A link to the file is found on the CRD database website or download the dataset directly: http://collections.stanford .edu/copyrightrenewals/files /CopyrightRenewalRecords200804 26.zip

Provision of the dataset is an additional service that we hope will be useful to those of you who are interested in setting up internal copyright search systems of your own. The web interface will remain the same for those of you who want to use it for occasional research.

The libraries continue to be asked about plans to expand our data set to include other classes of works. While we have not ruled it out, we do not have plans for such an effort at the moment. This is primarily a funding issue, but it is important to remember that for the book database we were able to leverage the extraordinary work of Project Gutenberg in transcribing the Catalog of Copyright Entry text. Since those transcriptions don’t exist for classes other than books, there is an additional layer of effort required to add additional data classes.

Mimi Calter
Special Projects Librarian and Intellectual Property Manager
Stanford University Libraries

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Hi Friends,

The state of Oregon has claimed copyright on the Oregon Revised Statutes and sent a cease and desist letter to Justia, with a threat of litigation if they were not removed or licensed. You can read more about this on the Justia Blog “Cease, Desist & Resist – Oregon’s Copyright Claim on the Oregon Revised Statutes” as well as Tim Armstrong’s post “Can States Copyright Their Statutes?” on Info/Law and William Patry’s post “Oregon goes wacka wacka huna kuna” on the The Patry Copyright Blog and Sam Bayard’s post “Oregon Claims Copyright in Its Statutes — Well, Sort Of” on the Citizen Media Law Project Blog. And there have been a additional posts on other blogs.
We are talking with Oregon early next week and will let you know how it goes. 
Onward & Peace,
Tim
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The final report of the Section 108 Study Group is available at http://www.section108.gov/.  Among other recommendations, the report endorses an important new exception that would allow libraries to preserve websites under the following conditions (see p. 104 of report):

A new exception should be added to section 108 to permit libraries and archives to capture and reproduce publicly available online content for preservation purposes, and to make those copies accessible to users for purposes of private study, scholarship, or research.

a. “Publicly available” for purposes of this exception is defined as publicly disseminated online content (such as websites) that is not restricted by access controls or any type of registration, password, or other gateway requiring an affirmative act by the user to access the content.

b. Once a library or archives has captured publicly available online content, it should be allowed to provide access to its preservation copies of this content to researchers on the library’s or archives’ premises.

c. Libraries and archives should be permitted to make the captured content available remotely to their users, but only after a specified period of time has elapsed.

2. Opting Out

a. Rights holders should be able to opt out of allowing libraries and archives to capture their publicly available online content, with the exception of government and political websites. The recommendation
to include an opt-out clause is conditioned on the Library of Congress being able to copy and preserve all publicly available online content, regardless of the rights holder’s desire to opt out.

b. Rights holders who do not opt out of capture and preservation of their publicly available online content should be able to separately opt out of allowing libraries and archives to make their content available remotely to users.

3. Libraries and archives should be prohibited from engaging in any activities
that are likely to materially harm the value or operations of the Internet site hosting the online content that is sought to be captured and made available.

4. Libraries and archives should be required to label prominently all copies of captured online content that are made accessible to users, stating that the content is an archived copy for use only for private study, scholarship, and research and providing the date of capture.

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The Fair Use Project of Stanford Law School’s Center for Internet and Society is co-counsel defending independent book publisher RDR’s right to publish The Harry Potter Lexicon, an unofficial reference guide to the Harry Potter series of books and movies.

The Court has put this case on the proverbial fast track by combining the hearing on the preliminary injunction motion filed by Ms. Rowling and Warner Brothers with the trial on the merits. The trial is scheduled to begin on March 24 at 9:30 am.

The trial will be open to the public, and will be conducted before the Honorable Robert P. Patterson in courtroom 24 of the Daniel Patrick Moynihan United States Courthouse, 500 Pearl St., New York, NY 10007.

Warner Bros., which owns the film rights to the Harry Potter books, and Harry Potter author J.K. Rowling filed a lawsuit on October 31, 2007 against Michigan-based RDR Books to block the publication of the lexicon, claiming that it violates copyright and trademark law and infringes on Rowling’s plans to publish her own companion book. RDR Books contends it has the right to publish the encyclopedic reference book under the fair use doctrine, which safeguards the use of copyrighted material so long as it is used transformatively and does not damage the market value of the original work.

“The public has long enjoyed the right to create reference guides that discuss literary works, comment on them, and make them more accessible,” said Anthony Falzone, executive director of the Fair Use Project, who will serve as counsel on the case. “J.K. Rowling and Warner Bros. are threatening that right. We intend to demonstrate that the fair use doctrine protects the Harry Potter Lexicon.”

Joining Falzone as co-counsel is Stanford’s Lawrence Lessig, founder and director of the Center for Internet and Society and the C. Wendell and Edith M. Carlsmith Professor of Law. They join RDR’s lead counsel David S. Hammer, a former federal prosecutor.

More information about the case is available on the CIS website at:
http://cyberlaw.stanford.edu/case/rowling-v-rdr-books

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Lauren Gelman

  • Executive Director
  • Center for Internet and Society
  • Lecturer in Law
  • Stanford Law School
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Jon Silver, technical consultant to the Stanford Copyright & Fair Use page has spiffed up the Charts & Tools page. This is a great page to go to as a first step when you’re trying to puzzle out the copyright status for a particular item you want to use. If you have a suggested chart or tool to add, email us at fairusecontent@justia.com  

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Mary: Thanks for sending us new updates forthe Copyright Overview pages. How is fair use holding up in the 21st Century?
Rich: As always, fair use is under attack by business interests; but it’s not endangered. Over the last decade there’s been a two-pronged effort to shut down free use of works: first, by closing down the public domain; and second, by chipping away at fair use. I think the attack on the public domain has been more successful. I recently read a pre-publication copy of Steve Fishman’s treatise, Copyright and the Public Domain (Law Journal Press) and he documents the sad story –how legislators, litigators, and corporations have plundered the public domain over the last ten years.
In general, fair use has not suffered the way the public domain has, even though a lot of the same forces like the DMCA and licensing law are at work. Courts, for the most part, have been reasonable and consistent when applying the fair use factors. Most important, there are well-heeled companies and individuals who are willing to defend fair use rights, something that’s not always the case for public domain issues. For example, thanks to Google, there are clearer rules about search engines, thumbnails (small low-resolution reproductions of images) and caching (when a search engine saves information from a web page for future reference). And for those who appreciate fair use precedents for artwork, we have to thank appropriation artist Jeff Koons, who after several fair use losses — Rogers v. Koons, United Feature Syndicate, Inc. v. Koons, and Campbell v. Koons — finally won one (Blanch v. Koons) as genuinely transformative use. As William Patry wrote, “If the White Sox can win the World Series, Jeff Koons can win a fair use case.” Keep in mind that in many cases, it may be cheaper to work out a settlement but litigants like Koons and Google stuck it out thereby providing us with much-needed precedents.
Mary:What’s the greatest danger to fair use?
Rich: Some think it’s the DMCA (the Digital Millennium Copyright Act), and others like the Brennan Report on Fair Use blame the whole “clearance culture” that permeates arts and entertainment. Others point at the assertion of trademark rights. But for those down in the trenches responding to cease and desist letters, I think the greatest danger to fair use is the escalating cost of litigation. With attorneys billing over $500 an hour, it’s harder and harder to justify defending a fair use claim. So small entities shut it down and cave to demands. We’re seeing the emergence of what you might call copyright trolls—companies that bully smaller entities into paying license fees.
As we point out on the site, you never know for sure if something is fair use until a court rules on the matter. So sometimes fighting the battle is important. I’ve been tracking legal costs in a blog at Nolo called What Price Justice? I’m not sure people are really aware—at least until they walk into a lawyer’soffice—how out of control legal costs have gotten.
Mary: How would you characterize the change in fair use cases in recent years?
Rich: One thing of interest is that judges seem to be more tolerant of the use of thumbnails. We’ve seen fair use rulings in favor of thumbnails in a timeline in a book and in two cases, as part of search engine results. That’s not to say that all thumbnail uses are a fair uses, but courts have distinguished the commercial value of low-resolution versus high-resolution imagery and seem to comprehend that low-resolution uses are generally for transformative purposes. That may prove helpful for bloggers arguing for fair use claims of thumbnails.
As for the use of copyrighted materials in search engines, the Ninth Circuit even went so far as to say that “[A] search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work.” (Perfect 10 v Amazon). That’s a pretty strong statement and one that should make Google happy. And also—again thanks to Google’s efforts—it’s a fair use to display a cached website (a temporarily stored archival copy) in search engine results.In the music world, there haven’t been any surprises. It didn’t shock anyone when the courts ruled that downloading songs without authorization is not a fair use.
Mary: What does the future hold for fair use?
Rich: I’m awaiting the results of the smackdown between Google and publishers and authors over Google Book Search. Last year I spoke with general counsel for one of the plaintiff publishers and he seemed pretty adamant that fair use did not apply to complete copies of books. That’s what the movie studios said about copying films before Betamax. After all, if search engine results are transformative—as the Ninth Circuit has ruled—then shouldn’t Google’s book search feature be equally transformative? Stay tuned.
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Rich Stim is the author of the Stanford Copyright & Fair Use Center’s Overview pagesand of Getting Permission (Nolo: 2007)
Mary Minow is a consultant with LibraryLaw.com on copyright, privacy and freespeech issues.