Texts Without Context; New York Times, 3/21/10

Michiko Kakutani, New York Times; Texts Without Context:

"In his deliberately provocative — and deeply nihilistic — new book, “Reality Hunger,” the onetime novelist David Shields asserts that fiction “has never seemed less central to the culture’s sense of itself.” He says he’s “bored by out-and-out fabrication, by myself and others; bored by invented plots and invented characters” and much more interested in confession and “reality-based art.” His own book can be taken as Exhibit A in what he calls “recombinant” or appropriation art.

Mr. Shields’s book consists of 618 fragments, including hundreds of quotations taken from other writers like Philip Roth, Joan Didion and Saul Bellow — quotations that Mr. Shields, 53, has taken out of context and in some cases, he says, “also revised, at least a little — for the sake of compression, consistency or whim.” He only acknowledges the source of these quotations in an appendix, which he says his publishers’ lawyers insisted he add.

“Who owns the words?” Mr. Shields asks in a passage that is itself an unacknowledged reworking of remarks by the cyberpunk author William Gibson. “Who owns the music and the rest of our culture? We do — all of us — though not all of us know it yet. Reality cannot be copyrighted.”

Mr. Shields’s pasted-together book and defense of appropriation underscore the contentious issues of copyright, intellectual property and plagiarism that have become prominent in a world in which the Internet makes copying and recycling as simple as pressing a couple of buttons. In fact, the dynamics of the Web, as the artist and computer scientist Jaron Lanier observes in another new book, are encouraging “authors, journalists, musicians and artists” to “treat the fruits of their intellects and imaginations as fragments to be given without pay to the hive mind.”

It’s not just a question of how these “content producers” are supposed to make a living or finance their endeavors, however, or why they ought to allow other people to pick apart their work and filch choice excerpts. Nor is it simply a question of experts and professionals being challenged by an increasingly democratized marketplace. It’s also a question, as Mr. Lanier, 49, astutely points out in his new book, “You Are Not a Gadget,” of how online collectivism, social networking and popular software designs are changing the way people think and process information, a question of what becomes of originality and imagination in a world that prizes “metaness” and regards the mash-up as “more important than the sources who were mashed.”

Mr. Lanier’s book, which makes an impassioned case for “a digital humanism,” is only one of many recent volumes to take a hard but judicious look at some of the consequences of new technology and Web 2.0. Among them are several prescient books by Cass Sunstein, 55, which explore the effects of the Internet on public discourse; Farhad Manjoo’s “True Enough,” which examines how new technologies are promoting the cultural ascendancy of belief over fact; “The Cult of the Amateur,” by Andrew Keen, which argues that Web 2.0 is creating a “digital forest of mediocrity” and substituting ill-informed speculation for genuine expertise; and Nicholas Carr’s book “The Shallows” (coming in June), which suggests that increased Internet use is rewiring our brains, impairing our ability to think deeply and creatively even as it improves our ability to multitask.

Unlike “Digital Barbarism,” Mark Helprin’s shrill 2009 attack on copyright abolitionists, these books are not the work of Luddites or technophobes. Mr. Lanier is a Silicon Valley veteran and a pioneer in the development of virtual reality; Mr. Manjoo, 31, is Slate’s technology columnist; Mr. Keen is a technology entrepreneur; and Mr. Sunstein is a Harvard Law School professor who now heads the White House Office of Information and Regulatory Affairs. Rather, these authors’ books are nuanced ruminations on some of the unreckoned consequences of technological change — books that stand as insightful counterweights to early techno-utopian works like Esther Dyson’s “Release 2.0” and Nicholas Negroponte’s “Being Digital,” which took an almost Pollyannaish view of the Web and its capacity to empower users."

http://www.nytimes.com/2010/03/21/books/21mash.html?scp=2&sq=michiko&st=cse

A Supersized Custody Battle Over Marvel Superheroes; New York Times, 3/21/10

Brooks Barnes and Michael Cieply, New York Times; A Supersized Custody Battle Over Marvel Superheroes:

"The dispute is also emblematic of a much larger conflict between intellectual property lawyers and media companies that, in Mr. Toberoff’s view, have made themselves vulnerable by building franchises atop old creations. So-called branded entertainment — anything based on superheroes, comic strips, TV cartoons or classic toys — may be easier to sell to audiences, but the intellectual property may also ultimately belong in full or in part to others.

“Any young lawyer starting out today could turn what he’s doing into a real profit center,” Paul Goldstein, who teaches intellectual-property law at Stanford’s law school, said of Mr. Toberoff’s specialty.

Mr. Goldstein said cases like the one involving Marvel are only the tip of an iceberg. A new wave of copyright termination actions is expected to affect the film, music and book industries as more works reach the 56-year threshold for ending older copyrights, or a shorter period for those created under a law that took effect in 1978.

Mr. Toberoff is tackling what could be one of the most significant rights cases in Hollywood history; it’s certainly the biggest involving a superhero franchise. Unlike his continuing fight with Warner Brothers over Superman, Mr. Toberoff’s rights-reclamation effort against Marvel involves dozens of stories and characters from about 240 comic books."

http://www.nytimes.com/2010/03/21/business/21marvel.html?scp=1&sq=copyright%20marvel&st=cse

Smoking guns, dark secrets aplenty in YouTube-Viacom filings; Ars Technica, 3/19/10

Nate Anderson, Ars Technica; Smoking guns, dark secrets aplenty in YouTube-Viacom filings:

"Court documents in the $1 billion lawsuit between Viacom and YouTube were unsealed today, finally shedding some light on key questions: did Viacom have "smoking gun" evidence that YouTube was deliberately profiting from 62,637 Viacom clips that were watched more than 507 million times on the site? Was Google aware of the copyright infringement problems when it purchased YouTube in 2006? Were YouTube's own founders involved in uploading unauthorized materials?

On all three counts, Viacom says yes—and it offers up a host of e-mails to prove it..."

http://arstechnica.com/tech-policy/news/2010/03/smoking-guns-dark-secrets-spilled-in-youtube-viacom-filings.ars

Your life will some day end; ACTA will live on; Ars Technica, 3/19/10

Nate Anderson, Ars Technica; Your life will some day end; ACTA will live on:

"The Anti-Counterfeiting Trade Agreement (ACTA) isn't just another secret treaty—it's a way of life. If ACTA passes in anything like its current form, it will create an entirely new international secretariat to administer and extend the agreement.

Knowledge Ecology International got its hands on more of the leaked ACTA text this week, including a chapter on "Institutional Arrangements" that has not leaked before. The chapter makes clear that ACTA will be far more than a standard trade agreement; it appears to be nothing less than an attempt to make a new international institution that will handle some of the duties of groups like the WTO and WIPO.

Why bother? Well, from the perspective of countries like the US, the existing institutions have problems. For one, they feature a huge number of nations, some of whom have blocked some of the anti-counterfeiting provisions desired by the US and others. Call this the UN problem—getting much done with so many people in attendance can be tricky, and ACTA has become a "coalition of the willing" who have decided to go form their own club instead.

But WIPO, especially, has also opened up over the last decade, and now has robust rules for the participation of consumer groups and other non-governmental organizations. It also requires far more transparency, with the publication of proposals and draft texts throughout a negotiating process. As we have seen too clearly, ACTA has none of this.

Jamie Love of KEI claims that the US Trade Representative has already "told members of Congress it is their intention to marginalize the participation by consumer interest organizations in the new forum."

The new ACTA secretariat won't be a mere administrator. The leaked chapter makes clear that the new governing body will "make recommendations regarding the implementation of ACTA" and will itself "identify and monitor techniques of piracy and counterfeiting."

In other ACTA news, a separate chapter has also leaked, and in it the EU wants to make sure that criminal penalties exist for "cases of willful trademark counterfeiting and copyright or related rights piracy on a commercial scale." On a "commercial scale" doesn't mean that such infringement must be done for financial gain, however; it also includes "significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain."

Despite the public support of President Obama, ACTA is running into bad press throughout the world. The European Parliament last week even managed to pass a strong resolution of displeasure with the ACTA process, which passed 633-13."

http://arstechnica.com/tech-policy/news/2010/03/your-life-will-some-day-end-acta-will-live-on.ars

UK IP Minister Lammy Backs EU Release Of ACTA Text; Intellectual Property Watch, 3/17/10

Intellectual Property Watch; UK IP Minister Lammy Backs EU Release Of ACTA Text:

"David Lammy, United Kingdom Minister for Intellectual Property, today said the UK supports the European Union’s position that the text of the Anti-Counterfeiting Trade Agreement (ACTA) should be made public.

“The UK has long been in favour of greater transparency in the ACTA negotiations, so I am very pleased that EU has now agreed that the draft ACTA text should be placed in the public domain as soon as possible,” Lammy said in a press statement. “This would allow much more open and informed engagement with citizens, society, and parliaments.”

Lammy said that the European Commission “will take this message” to the next negotiating round in New Zealand in April “and seek the agreement of all other negotiating partners.”

”This is a very important step forward, and I will continue to push for these negotiations to be conducted openly and transparently,” he said. The 18-month-old negotiations (IPW, Bilateral/Regional Negotiations, 24 October 2007) have been plagued by complaints about the lack of transparency and inclusiveness."

http://www.ip-watch.org/2010/03/17/uk-ip-minister-lammy-backs-eu-release-of-acta-text/

Viacom Says YouTube Ignored Copyrights; New York Times, 3/19/10

Miguel Helft, New York Times; Viacom Says YouTube Ignored Copyrights:

"Pointing to internal YouTube e-mail messages, Viacom said in a court filing that the video site’s founders turned a blind eye when users uploaded copyrighted clips so they could amass a big audience and sell the company quickly.

The charge was one of many made by Viacom in filings unsealed on Thursday in its three-year-old copyright lawsuit against YouTube and Google, which bought YouTube in 2006 for $1.65 billion.

Google fired back, saying Viacom was distorting the record by taking passages from e-mail messages out of context. It also said Viacom employees and agents “continuously and secretly” uploaded clips from the company’s television shows and movies to YouTube for promotional purposes, even as they were complaining about copyright violations.

“They are both tearing each other up, and both are scoring points,” said Eric Goldman, director of the High-Tech Law Institute at the Santa Clara University School of Law.

The lawsuit accused YouTube of profiting from thousands of clips from Viacom movies and shows that were uploaded to the site without permission.

It was filed at the height of tensions between Google and media companies over copyrights — tensions that have since eased substantially. YouTube, which is by far the Web’s largest video site, has set up an automated system to detect infringing videos and signed revenue-sharing agreements with more than a thousand media companies.

But more broadly, media companies remain wary of losing control as more of their products become digital, making them easier to copy.

As part of their motions for summary judgment in the case, both sides released hundreds of pages of documents and exhibits on Thursday, including internal documents obtained through the discovery process.

Among them were scores of e-mail messages from YouTube’s founders — Chad Hurley, Steve Chen and Jawed Karim — discussing what to do about clips uploaded to YouTube that clearly belonged to major studios or television networks.

In a 2005 e-mail message to Roelof Botha, a partner at Sequoia Capital, YouTube’s major outside investor, Mr. Chen described a system that the company had put in place for users to flag copyrighted and pornographic content: “That way, the perception is that we are concerned about this type of material and we’re actively monitoring it.”

Mr. Chen goes on to acknowledge that much of the infringing material will remain on the site, but that users won’t be able to easily stumble upon it.

Google countered that the message was truncated and taken out of context, and that it merely suggested that YouTube was serious about policing its site for copyrighted content.

One e-mail message revealed that even as YouTube’s founders were discussing how to deal with copyrighted clips, one of them was uploading such material.

In July 2005, Mr. Chen wrote: “Jawed, please stop putting stolen videos on the site. We’re going to have a tough time defending the fact that we’re not liable for the copyrighted material on the site because we didn’t put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it.” Google said that message referred to “viral videos,” not pirated media content.

In another e-mail message from January 2006, a Google executive refers to a conversation with Mr. Hurley and another YouTube executive about copyrights, and compares YouTube with the much less popular Google Video service.

“YouTube is at an advantage b/c they aren’t the target that we are with issues like this. They are aware of this (I spoke with them on Friday) and they plan on exploiting this in order to get more and more traffic.”"

http://www.nytimes.com/2010/03/19/technology/19youtube.html?hpw

In Court, a University and Publishers Spar Over 'Fair Use' of Course Materials; Chronicle of Higher Education, 3/14/10

Jennifer Howard, Chronicle of Higher Education; In Court, a University and Publishers Spar Over 'Fair Use' of Course Materials:

"Maybe you're a professor who wants to use a chunk of copyrighted material in your course this spring. Or perhaps you're a librarian or an academic publisher. If so, the much-followed Google Book Search settlement is not the only legal case you need to be watching. A federal case involving publishers and a state-university system, Cambridge University Press et al. v. Patton et al., should produce a ruling soon, and its stakes are high.

First, a little history. In the spring of 2008, three academic publishers, Cambridge University Press, Oxford University Press, and SAGE Publications, brought a lawsuit against several top administrators at Georgia State University. The plaintiffs claimed that the university was encouraging the unauthorized digital copying and distribution of too much copyrighted material, particularly through its ERes and uLearn systems. ERes allows students to access digital copies of course material via a password-protected Web page; uLearn is a program professors can use to distribute syllabi and reading material.

The three publishers alleged that the unauthorized copying was "pervasive, flagrant, and ongoing." In February 2009, Georgia State put in place a revised copyright policy, including a checklist for faculty members to help them decide whether the amount of material they wanted to copy exceeded fair use.

Almost two years and many depositions later, both sides have filed briefs asking for a summary judgment in the case.

Legal briefs are a dry genre, but these tussle over some of the central questions of fair use in an academic context: How much is too much when it comes to copying rights-protected content without permission? To what extent is it the institution's job to shepherd its professors and students through the thorny complexities of copyright?

Unfair Use

The publishers' filing attacks what it calls the university's "blanket presumption of 'fair use'" in a higher-education context. The filing goes after the university's new fair-use checklist and copyright policy, saying that it "delegates the responsibility for ensuring copyright compliance entirely to faculty unschooled in copyright law."

The plaintiffs quote from the depositions of several Georgia State professors who acknowledge that they are not always clear on the copyright issues at stake. ("This is outside of my area of expertise," one is quoted as saying.) The publishers want the university to use the Copyright Clearance Center's licensing system or something like it for course materials.

The defendants take a strict we-didn't-do-it view. Their brief argues that "any alleged unlawful reproduction, distribution, or improper use was actually done by instructors, professors, students, or library employees."

Georgia State's filing also argues that the new copyright policy has drastically reduced the use of the plaintiffs' copyrighted material. It agrees with the plaintiffs that the defendants have no budget for permissions fees and that "faculty members would decline to use works like those at issue if there was an obligation to pay permissions fees."

So on one side you have a set of major academic publishers understandably eager to protect revenue, and on the other side you have a university that says it doesn't promote copyright infringement and doesn't have the money to pay a lot of permissions fees. One implication (threat?) one could draw is that if professors can't use what they need at no charge, they will probably use something else.

Complexities of Copyrights

I asked Kevin L. Smith, the scholarly-communications officer at Duke University, for his reaction. Mr. Smith helps scholars sort out copyright complexities—a function that is becoming ever more essential in university life, as this case makes very clear—and he has written about the GSU case on his blog, Scholarly Communications

For the moment, publishers appear unwilling to go after individual professors. "These faculty members are the same people who provide the content that university presses publish, so it would be really self-defeating," Duke's copyright maven, Mr. Smith, explained. "It would also be an endless game of 'whack-a-mole.' They would prefer a broad judgment against a university."
In any case, the Duke expert said, a fair-use case like this deserves more than a summary judgment. This case cuts to the heart of how many professors choose course material now and how students use it. Summary judgment or not, Duke's Mr. Smith said, "I think faculty and administrators should be very concerned.""

http://chronicle.com/article/In-Court-a-University-and/64616/?key=Tz12clBqMCdEbCY2KCRCfndROXx9chlxPXoWMS4aYlBS