Fair! Google Books case dismissed.

original ferris wheel - from the Open Library

Karen Coyle has done an excellent write up of this so I will refer you there.

The full impact of this ruling is impossible (for me) to predict, but there are many among us who are breathing a great sigh of relief today. This opens the door for us to rethink digital scholarship based on materials produced before information was in digital form.

Folks can read the actual ruling (pdf) if they’d like. This is a very big deal. Thanks to folks who worked so hard on getting us to this place. I’ll add a few links here as they come in.

  • Kenneth Crews, Columbia Copyright Advisory Office: “This ruling joins court decisions about HathiTrust and electronic reserves in demonstrating that even extensive digitization can be within fair use where the social benefits are strong and the harm to rightsholders is constrained. There will be more to come as we transition into a new era of copyright, technology, and even reading.”
  • Brandon Butler, ARL Policy Notes blog; “The decision is a victory not only for transformative, non-consumptive search, but also for serving “traditionally underserved” libraries and their users, including disabled patrons.”
  • Paul Alan Levy: “This ruling provides a road map that allows any other entity to follow in Google’s path.”
  • Timothy Lee, Washington Post: “Many innovative media technologies involve aggregating or indexing copyrighted content. Today’s ruling is the clearest statement yet that such projects fall on the right side of the fair use line.”
  • Mike Masnick at Techdirt: “It all comes together in making a very strong argument that Google’s book scanning promotes the progress of the arts and sciences just like copyright is supposed to do.”
  • InfoDocket also has an updating list of links to discussion of the decision.

theming it up for 2013

I’ve been doing a lot less public speaking this year, by choice. Just trying to travel less, be more of a homebody, be choosier. I just noticed that I haven’t mentioned any of the talks I have been doing or will be doing, so this is the post that clears that up. I have done three talks this year, all thematically related. You may be able to detect the theme….

1

Basically they summarize what’s been going on in the world of Fair Use the past year (a lot!) and then talk about what libraries are doing and what they can do. I also talk a bit about my work for Open Library where I am volunteering doing email support, helping people freely download and read ebooks through the Internet Archive‘s somewhat quirky interface. It’s challenging and fun. The two are related but maybe not in the way you’d think. People who are curious about Open Library or maybe helping out a little, please drop me an email and I can talk more about it at length.

A few upcoming talks, most on the far horizon. In August I’ll be in Lincoln Nebraska talking to rural librarians about technology use and training. In April of next year I’ll be at both TXLA (my favorite state conference I think, though there are many close seconds) and then at the Michigan Rural Libraries Conference on Mackinac Island. If you’re going to any of these, please let me know.

The uncomfortable problem of orphans – MLibrary’s approach

Orphan works are works that are in-copyright but do not have a contactable copyright holder. They’re tricky and annoying as far as reuse goes because while technically they’re not re-usable without permission, how do you get permission? People have discussed this problem at length, but The University of Michigan’s Copyright office — the people who are working on the copyright review management system — are trying to do something about it. They launched a project to try to track down and identify the rights holders of orphan works created between 1923-1963 in the HathiTrust Digital Library. In doing so, they hope to get a general idea of the scope of the problem and at the same time develop best practices for identifying orphan works. They might also help HT make more of their content available as its copyright status is determined.

Copyright is killing sound archiving and fair use isn’t doing so well either


Fair Use poster image by Timothy Vollmer

The Library of Congress just released its 181 page report “The State of Recorded Sound Preservation in the United States: A National Legacy at Risk in the Digital Age” talking about the challenges of digitally archiving sound recording. BoingBoing gives a nice summary “[T]he copyright laws that the recording industry demanded are so onerous that libraries inevitably have to choose whether to be law-breakers or whether to abandon their duty to preserve and archive audio.” More analysis from OSNews.

And if anyone’s wondering where I’ve been this week, the answer is “Mired in getting copyright permissions for the intellectual property in my book. Thanks for asking.” I have a pretty firm grasp of Fair Use and have been trying to follow the guidelines for Fair Use in Media Literacy Education. I signed a book contract that specifically says that I am responsible for assuring that my materials are being used with permission. Despite this, my publisher (who I am quite fond of otherwise) is risk-averse and wants to make sure I have permission anyhow. Permission that I assert that I don’t need for small screenshots of, say, Google search results or an ALA nested menu.

This gets even more confusing when some of the organizations involved claim that I need permission when I don’t. Since Fair Use, like the Americans with Disabilities Act, is mostly something that gets hammered out through litigation there is no strict set of guidelines as to what Fair Use is. So, big companies with a lot to lose err on the side of compliance with other big companies’ requests, requests that may be extralegal. So Google can’t legally tell you to only use the public domain offerings from Google Books (which they admit) but they make a polite request, a polite request that sounds a lot like a terms of service.

So right now I’m waiting to hear back from Facebook after filling out a form on their website asking for permission to use a screenshot. They say it will take 1-2 weeks. I am confident that my screenshot is fair use. My editor also thinks it is fair use. However they’re not willing to risk it. And so we wait.

What happens in a copyright dispute on YouTube?

One the the benefits of my free agent status is that I can occasionally push the envelope on certain rules in a spirit of “see what happens” realizing that some small town in Vermont won’t be bankrupted if I get sued. I’ve often said that I’d like to see more civil disobedience from libraries concerning copyright legislation (especially concerning public performance rights to movies and ability to make copies of our own content) but it’s not happening quickly. That said, as you may know, I make some videos and have put them on YouTube. One of them was popular for a little while. Sadly, that one had a soundtrack from a Beausoleil album that I liked and did not have permission to use. The other much less popular video was just some shots out the window driving in a rainstorm while listening to the radio. The song in question comes on the radio for about the last minute of my video.

Last week I got an email from YouTube saying… I don’t still have the email but in short their Video Identification tool had matched a song in two of my videos and my videos had immediately been removed from public viewing. My options were to 1. delete the audio and/or use their AudioSwap feature to replace it 2. dispute the copyright claim on a few grounds 3. delete the video. I opted to try AudioSwap for my popular video, sort of sad because it removes my voiceover and other sound effects, but decent because it’s a better option than removing the video entirely. I replaced the soundtrack with a free track from AudioSwap. If I felt like I had time and energy I’d write to Michael Doucet and see if he’d give me permission, but it’s probably not even him but his record company, etc. The AudioSwap interface is clunky and may or may not put an advertisement in your video (and hasn’t worked yet for me but I keep trying) but it’s a good option to have.

In the second case, I really feel like I have a decent Fair Use case, so I filled out this form. The form says that I think the clip is fair use under copyright law. It’s my responsibility to “understand the law” according to YouTube, and that is my understanding of it. I had to “sign” it and also type [well copy/paste] the line that says I’m not intentionally abusing the dispute process. After I did that, I was sent to this help article to see what will happen next. The article warns

If the content owner disagrees with your dispute for any reason, they will have the option to submit a copyright takedown notice which will result in the disabling of your video and/or penalties against your account. To avoid penalization, only submit legitimate dispute claims.

So, we’ll see. I think I’m right. I hope the copyright holder thinks so too. At the very least they will be bored with four minutes of windshield rainstorm before they even hear their song and even then they’ll probably be straining saying “Is that it?” At the worst, I’ll get some sort of “penalty against my account” of unspecified awfulness. So, for those of you too timid to try this at home, or possibly being cavalier about the audio you swipe, that’s my report of the consequences … so far.

Google Book Search amplifies our efforts

University of Michigan President defends their relationship with the Google Book Search project (full speech pdf download). Intriguing comments below including Siva and a plug by librarians’ own SuperPatron on another way of harnessing the power of the Google Book Search for libraries. [thanks molly]