Copyright Librarian

Earlier this week, some filmmakers filed a class action suit that attempts to establish as fact that the song "Happy Birthday to You" is in the public domain - and has been for many years. The suit is a class action on behalf of everyone who has paid licensing fees to use the song in media and public performances, which alleges that the licensing requests are wrongful, and seeks -repayment to all class members- of unlawful fees they have been forced to pay.

It's interesting to note that a -lot- of copyright nerds have been of the opinion that the song probably was public domain - it's well-known that the first version of the melody was published so long ago it should be public domain. But there's always been a lot of murkiness about which version was published first, by whom, and who owned the copyrights in the published versions, and so on - and Warner/Chappell Music has stood happily in the midst of that murk, collecting licensing fees. (Or, where users decide licensing fees are too costly, subjecting us all (and especially the poor, unfortunate waitstaff) to the hideous alternative compositions that count as "birthday songs" at most major chain sit-down restaurants.)

So, if people suspected this song was public domain, why hasn't anyone tried to legally establish that before? Well, aside from a few broad classes of works, it's actually often tremendously difficult to conclusively know that a work is in the public domain. Copyright scholar Peter Hirtle maintains an ever-growing chart of the mind-numbingly complex maze of considerations in establishing public domain status under U.S. law. The chart itself currently has 21 footnotes.

When libraries, archives, and other folks seek to digitize and publicly share items in our collections, it costs us a lot of money: the digitization itself isn't cheap, and then we have storage, preservation, and delivery (bandwidth) costs. So it's hard to dedicate resources to digitizing something where we might get into a fight with a purported copyright owner and end up having to take it back down. Although many of us are getting better at embracing copyright risks, especially for materials of high importance and interest, we are all still operating under really limited budgets, so a lot of digitization by cultural organizations still focuses on public domain materials.

But as this suit demonstrates, figuring out if something is in the public domain also takes resources - and unfortunately, how many resources it will take, for any given item, can be impossible to predict. Say you find the original copyright registration from 1936 - if you don't find a renewal notice, have you proven that it wasn't renewed? And if your research has to encompass author death dates, inheritance law or corporate histories, there are many non-copyright rabbit holes you might fall down. Many cultural organizations (and others) knowing all these uncertainties, decide not to commit to what might become a massive black hole draining resources that could be used elsewhere.

So these plaintiffs may have been the only people who -could- have brought this suit. They're suing because they've had to pay a license fee to use the song in a documentary - which is about the song. I'm guessing the research for the documentary had gotten them at least partially through the murkiness that is the history of this song's publication - because their legal filings are kind of amazing.

Their brief in this case highlights how much intensive, detailed research this kind of public domain determination can require - pages 3-16 are entirely made up of factual statements about dates of publication, copyright registrations and transfers, and company incorporations and disbandings - covering a period from 1893 to 1998. This is not a casual investment of a few hours of research - this is a dissertation.

And because there is another party actively claiming to own the copyrights, the plaintiff's can't have any holes in their documentation - they have to convince a court that their factual record is airtight. If they can establish that, though, they're doing a terrific public service - even if they don't get repayments to all the class members, they'll have cleared up the historical murk so that the public - who should have been able to do so all along - will be able to freely use this song we (almost certainly) all own.

Couple weeks ago, I saw a fun little flowchart/joke/cultural critique on Jezebel: "How to Tell If A Toy Is For Boys Or Girls: A Guide". (Image credits are intentionally withheld in the beginning of this post.)

Bunch of folks were linking it on Facebook/Twitter/etc. Both the Jezebel post and the folks I saw passing it around online were talking about it as if it was new, insightful, and funny.

"It's definitely insightful and funny, but new?", I thought. "I'm pretty sure I've seen that before."

(I'm sidestepping a huge thing throughout this post: the cultural/community expectations of credit and sourcing on Tumblr. But A) that's, like, a massive series of million-word posts in and of itself, and B) none of my initial encounters with this image were on Tumblr.)

A Story

A bit of digging through prior social media exchanges surfaced what I remembered seeing, this:

The Jezebel post credited Kristen Myers, who uses the handle Paranoid Shiksa Feminista on Jezebel. The comments on the Jezebel post make it clear that Myers' brightly-multicolored rendition came to the attention of the Jezebel staff via Myers' Jezebel user-board post celebrating that Neil Gaiman had linked to her Tumblr post of the image.

Myers' Tumblr post is from April 27, 2013. But I had definitely seen the clunkier, all-blue rendition way earlier than that. As I started digging around, I noted that Myers' user-board post did acknowledge an earlier inspiration for the image:

"I wouldn't say I ENTIRELY came up with it... I basically just saw a wonky looking version of something similar floating around the internet a while back (it looked like someone had made a halfhearted attempt to design something in Microsoft Word?) and liked what it was trying to say, so I spent a few minutes polishing it up and posted it to my blog. I wasn't able to find the original source, so I suppose we truly have some mystery internet chart-maker to thank, ha."
(comment dated 5/7/13, 1:38am)

Then I noticed that in the comments on the Jezebel article, the originator(s) of the older image identified themselves:


It took a while, but Myers did eventually add the credits on her original Tumblr post, along with an apology for not crediting before:

"I must truly apologise for not placing a source earlier as I saw someone sharing it on Facebook without a source. Despite some niggling feelings, I decided to share it on Tumblr and BAM! I did not expect to get 29K notes. But but but this is the original post: http://backinasex.tumblr.com/image/36685016597 - that paranoid_shiksa_feminista redesigned)"

And everywhere else she has shared the image also links back to the original. But the Jezebel post still does not credit the original image. When Myers requested that Jezebel update the credits on May 14, Jezebel added a link to Myers' design blog as well as Tumblr, but didn't add any credits for the source of the original image.

Some Reflections on That Story

In general, I'm pretty much of the mind that "you put it on the internet, it's liable to get away from ya" is general common sense. But this particular series of links and inspirations really stuck in my head, because as far as I can see, most of the folks involved in sharing this image see Myers as contributing something major and substantive.

As Myers herself said, before the original-image creators identified themselves, ""I wouldn't say I ENTIRELY came up with it [...] [I] liked what [the original] was trying to say..." (emphasis added.) And as the Jezebel staffer who posted it said, "the image is so great as a standalone item, it deserved a clear "this is what this is" kind of headline on the Jez homepage." This is the same staffer who responded to Myers' request for updated credits by updating links to Myers' site, but not adding any credit to BackinaSex - so presumably, she thinks it's appropriate for the credits on Jezebel not to reference the original, that the links from Myers' site are sufficient credit.

Whereas from my perspective, everything funny, insightful, and true about this image is -already there- in the original version posted on Backinasex.
It's true that Myers made it -look better-. And it's true that design is often an incredible contribution to conveying an idea - it often makes concepts clearer, or makes processes function better, or contributes in tons of other ways.

But I don't see the design doing any of that here. It looks better. But it doesn't mean anything more, and its meaning is not any clearer. My alt-tags describing each image for users who can't see online images are identical: "flowchart image joking that toys operated with genitalia are not for children and toys not operated with genitalia are for both boys and girls" Certainly Myers deserves credit for the redesign, but I think most of the real communicative value here comes from the originators, Cy and Eva.

"Appropriate attribution" is a pretty strange thing.

This post is based on a talk I gave/conversation I had today at the "Enhancing Quality Staff" symposium. I love this symposium, because I get to wander away from academic copyright issues, and there's always a ton of cool people who want to wander with me! This time, the session description promised discussion of yearbook photos, family papers, and crafts and hobbies. Here is (roughly) what we talked about - apologies for the all-about-me-ness of the examples - but hey, it's about your -personal life-, right?

Legal Super-Basics

You are currently a copyright owner. So is everyone else. Copyright owners and consumers are not actually separate groups, it's all cyclical.

A lot of people get very possessive about "their" stuff, but want to easily use other people's stuff. Realistically, you can't have both of those things. IMO, owners relaxing ideas about what they want to control usually works out better for everyone, including the owner.

(Incidentally, I intentionally used the lolcat image -because- I could not figure out who owned it or where it came from. I did a TinEye.com search to try to find the original, but there are just too many copies of it (with a bunch of different pieces of text) out there in the world.)

Copyright owners get to control roughly four things: making copies, distributing copies, public performances or displays, and making derivative works. But they do not -always- get to control those things.

Finally, the law does not care very much about attribution or credit. But -people- do care A WHOLE LOT about that. In a lot of copyright situations in your personal life, community norms and practices, individuals' feelings, and interpersonal relationships may well be more important than law.

Familiar-ish Reasons You Might Be Able To Use Stuff You Do Not Own

Not a copyright issue - i.e., you're doing something that isn't one of the things owners get to control. Reading a book aloud at storytime at a library is a public performance, and may be a copyright issue (though it may be legal as a fair use or for other reasons.) Reading a book aloud to your kids, grandkids, cousins, babysittees, and/or their friends in someone's home seems like a very similar activity, but because it's not -public-, it's just not a copyright issue.

Explicitly legally permitted: the thing you're using is in the public domain, or there's a narrowly-tailored copyright exception that covers your activity, or your activity is fair use, or you have a license or explicit permission!

We also side-tracked here, thanks to an insightful audience comment, into the fact that, sometimes, a license may -prohibit- uses that would otherwise be permitted by copyright law. Worth noting when you agree to terms of use!

More Obscure Reasons You Might Be Able To Use Stuff You Do Not Own

De minimis use

I copied the above image from an image related to a current blockbuster movie! I did not think twice about the copying, because that is -just so little of the original- that if anyone were to complain about it, I could respond that "de minimis non curat lex" - "the law does not concern itself with trifles." (Thanks to Greg Cram for the pixel-copying as an example of de minimis use!)

We actually have moved away from the de minimis doctrine in copyright law, especially with the music sampling cases that developed the theory that a single-note sample required a license. But recently courts have actually been a bit more receptive to it: the District Court judge in the Georgia State case said that readings that had been copied and uploaded to a server, but which had not demonstrably been downloaded or used by any students, were de minimis uses - wiping out the infringement claim without even considering fair use. (P. 93 of the opinion PDF.)

Still desperate to know what those pixels actually are? Benedict Cumberbatch's eye.

(There are no image credits on this post because (much to my slight embarrassment) I made all of these. The eggs are all Creative Commons licensed over on Flickr; click any picture to go there.)

I have a long history of making slightly geeky easter eggs for friends and family. I grew up making silly eggs with family, and later learned some of the techniques of pysanky, traditional Polish egg-decorating. (Despite not being Polish. Or Christian, actually.)

The first seriously geeky one was actually inspired by a student who worked for me in a tech center at the University of Michigan Libraries, who said "You couldn't make a -Batman- egg, could you?"

Thanks for setting me off down a lifetime of strange creative choices, Asif.

To maintain plausible deniability about my own extreme geekiness, I'm not going to admit which of those were requests, which were done with specific friends in mind, and which were just for me...

Some time ago, I made a birthday present for a good friend who is a fan of Doctor Who. Although I am not, myself, a big fan of Doctor Who, I was -aware- that the internet likes Doctor Who. I just wasn't quite aware -how much- the internet REALLY LIKES DOCTOR WHO.

I documented the creation pretty carefully, because I'd referenced some lovingly detailed info from ProjectDalek, and they ask folks to document their builds. I honestly don't remember how it got there, but relatively shortly after I posted my photo series, it ended up on BoingBoing. It was also featured on Neatorama around the same time, and several photos were used on a site called Kuriositas.

This is all awesome, and from my perspective a bit hilarious. But also it's -100% totally legal for all those sites to copy my pictures- because they were published with a Creative Commons Attribution license. Anyone can use them for any purpose, without further permission from or payment to me, as long as they give me credit and say they're using it under a Creative Commons license. That's it, done!

Since 2010, the Dalek egg is still pretty consistently the most-visited image in my Flickr feed, and hits to it spike right around Easter every year. It shows up a lot of random places around the web. A co-worked spotted it on Buzzfeed fairly recently. The actual egg lives with its owner in Northeast Minneapolis (though it did make one public appearance at the Nerd Party Storefront-in-a-Box in summer 2010).

Wikipedia is increasingly an excellent source of images that are free for all kinds of uses. This recently came up in a discussion about resources for MOOC teaching, but it can also be a great source for a wide variety of projects. If an image is on Wikipedia, it is very, very often free for a -wide- variety of public uses!

But there should probably be one really quick step in the process between seeing an image on Wikipedia & downloading it for use. That is to take a quick look at the -image's- Wikipedia (or Wikimedia Commons) page to see if the reason Wikipedians think they can use it also sounds like it'd work in your use context.

Usually, all you need to do is click directly on the image (which is a good idea to do anyway, since it lets you download a higher-quality version of the image, and access full information for attribution or citation, if necessary) whereever it appears on Wikipedia.

The Wikipedia page for "Anatomy" provides a lot of great examples:

• The first image on the page is of this Rembrandt painting. Clicking on the painting takes us to https://en.wikipedia.org/wiki/File:The_Anatomy_Lesson.jpg - where we can see (towards the bottom) that it's in the public domain. Awesome - free for us to use.
• Further down the page there's an animated .GIF of an MRI scan of a human head. The image page says that they're using it under a Creative Commons "Attribution-ShareAlike" license and/or a GNU Free Documentation license. The former means its free for anyone to use as long as they provide attribution, and the work in which it is used is itself Creative-Commons licensed. This is probably not a barrier to use in a course context, because when you use a ShareAlike-licensed work intact in a collection with other stuff, the collection doesn't have to be CC-licensed, just the individual image. But it may provide a barrier if you want to adapt the original image in a context where you can't Creative-Commons-license the result.
• There is also a line-drawing illustration of pulmonary anatomy on the page. The image page states that it's public domain, from an old edition of Gray's Anatomy. Good to go for any use.

(Note: Wikipedians may not always be 100% correct about whether an image is in the public domain, but they are good at documentation, and good at self-correction. I'd say they're about as good a source of public domain information as any, these days. There's no perfect information.)

Most of the time, checking the image page is going to give you solid reasons why you -can- use the image, like public domain status, or Creative Commons licenses. Every once in a while, I've come across an image used on Wikipedia with a fair use justification, or because the image was originally distributed for promotional purposes (i.e., it was put out in public with the intent that it be used.) For example, check out this Monty Python image. If you understand why Wikipedia is using it, that may or may not -also- be good in your context - you'll want to consider the specifics.

I've also sometimes come across cases where the image page shows that Wikipedians are actively debating whether that image is appropriately used (for example, from today's featured article) Again, a time when you may well be able to use it, but you'd want to consider the specifics.

Also worth noting, if you want to systematically search, rather than just use an image you randomly stumbled on in Wikipedia, Wikimedia Commons provides a searchable and browseable collection of media (more than just images) that includes tons of great, open or free, stuff.

Fairly recently, I was approached by a graduate professional program to teach a short, for-credit, winter-term course on copyright. I was really excited by the opportunity - I mostly lead one-shot sessions, and I was looking forward to getting into more depth with a group of students. I'd started planning my syllabus, finding (open access, of course!) readings and videos I wanted to use, contemplating assignments and assessment. I think they even got as far as generating me a staff ID card.

But I don't have that staff ID card today, and I didn't teach that course. I don't know if anyone did. Late in the hiring process, the folks in the graduate program admin office remembered a new policy, and told me about it. I didn't like it. The institution's administration (not the administration of the professional program in question) would not consider changing their policy, and were quite surprised that I would think there was anything wrong with this policy! Then they were really shocked (and the grad program administrators truly left hanging, for which I'm very sorry) when I said I'd have to turn down the job.

I actually think it's quite likely that many of you'd agree with them that there's nothing wrong with their policy. They just wanted me to undergo a criminal background check.

But the fact that maybe a lot of you think this was a reasonable request is why I'm writing this.

Background Checks Are Sometimes Necessary

I can get behind background checks for people who handle money for an organization, or do executive-level decision-making. Those people have the power, as employees, to significantly affect the institution's interests. For any position that requires specific qualifications and an employment history, both the qualifications and the employment history should be rigorously checked. Even in these situations, hiring the best candidate for a position requires nuanced review of the information that results from a vetting process.

I also support background checks for people who work with children, teens, and vulnerable adults. There are inherent power imbalances in those situations, which can lead to exploitation of vulnerable individuals. I actually think criminal background checks are insufficient to guarantee the safety of vulnerable individuals, and a lot of extra checks and protections need to be built in to the functioning of groups that serve those populations.

Yes, sometimes a criminal history is a good reason to disqualify people from a particular job - but an overall acceptance that it is always reasonable to disqualify anyone with any kind of criminal record from any job is a pretty big problem. It is harmful to the individuals who have been convicted; they deserve to have a chance to move on with their lives. But it's also harmful to us as a society: social isolation and unemployment of ex-offenders contribute to recidivism (though other factors are also involved) - and to extended harmful effects for ex-offenders' families and children.

And the proliferation of background checks for jobs in which employees have little to no power over vulnerable populations, and for jobs in which employees have little to no power to directly affect an organization's interests - that's what I find really problematic.

Background Checks Are Not Really About Student Safety

Even (and perhaps in some instances, more so) in graduate school, it's true that instructors do have power over students, and where there are power imbalances, there is a potential for abuse. However, in a graduate program where all my students would also be independent adults, the kind of potential safety risks that a criminal background check would supposedly reveal (violent or abusive tendencies, history of manipulative fraud, etc.) are also risks that my students would pose to me, and to each other.

I am not suggesting students should have to submit to background checks before enrolling in a graduate program. At all.

I am suggesting that in many situations where it may be reasonable to -want- to know about someone's past, it is not reasonable to actually -get to access- that information. It's reasonable for my next door neighbors to -want- to know whether I have a criminal history, but it's not reasonable for them to get to run a background check on me before I move in.

Quite cynically, "student safety", for all some administrators may believe that's what they're doing, is pretty much a red herring. Universities want to run background checks on instructors because it's semi-affordable (I bet some of them even offload the cost to applicants), it's decent insulation in some kinds of lawsuits, and because it probably lowers their insurance rates.

If they really wanted to ensure safety, and really thought background checks improved safety for reasonably equal adults in the same room together, they'd run checks on all their students. But that would cost a lot of money - and might deter enrollment.

Background Checks Are Coercive

Most adjunct instructors do not have the luxury of turning down a job opportunity when the hiring institution asks them to do something invasive. Most adjunct instructors are barely scraping by. While not going into details, the amount I was offered to teach this for-credit class for a month was less than I often am paid for a half-day speaking gig. And I do not make amazing money speaking.

But most importantly...

Background Checks Are Inherently Unjust

I have absolutely zero criminal record; there's no way this could've affected my getting hired. But one reason I have absolutely zero criminal record is because I'm a white woman from an educated and economically privileged background. I got suspended from school once - and there was never any question that my playground misdeeds (we stole ketchup and mustard from the school cafeteria and used it to paint snowbanks in the parking lot) would result in an arrest. Although the "School-to-Prison Pipeline" problem has been growing most rapidly in recent years, there is no question that in this country the people most likely to have been convicted of a crime are also very likely to be poor, to be members of racial minorities, or to otherwise be members of socially marginalized groups.

If you believe that the U.S. criminal justice system isn't heavily biased towards arresting, convicting, and giving longer sentences to people who are members of groups that have less power in the world, I have no idea what to say to you. (Other people do, though. Lots of other people.)

But if you admit that there is bias in the criminal justice system, then you have to admit that criminal background checks - whose result is, presumably, to disqualify individuals with convictions in their past - are likely to increase disparities that are already highly problematic in many workplaces, and especially in higher education. Background checks will not reveal violent, abusive, or manipulative pasts of people who were never arrested, or never convicted, for those activities. But otherwise qualified instructors (i.e., those with the requisite qualifications -and- good accounts from former employers) who engaged in far less dangerous or threatening activities, but were members of groups against which the criminal justice system is biased, may never get a foot in the door. Who is more likely to have a conviction on his record: the white man who repeatedly got in drunken public altercations during college, or the black man who got in a public fight once?

Not a Big Deal... For Me

I was able to turn down this job because I already have a full-time job that pays me well, and because I have outside income from speaking. And, quite honestly, although I am proud of my work, my professional status is itself due, in many ways, to the various unearned advantages that have contributed to my relatively smooth ride through life.

I don't know if I'd take this hard-line a stance if the job was one I really wanted or needed. I don't look down on others who choose to comply with such a request. Being -able- to turn down a job is an incredible luxury. But because I do have that luxury - that privilege - I thought this was a time when I could use that privilege to highlight, however ineffectively, something I believe to be an injustice.

(ETA: many thanks to the friends who read this post over ahead of time and offered really helpful feedback. Even more so to my friend Amity Foster, who has done the most to bring the issue of fair hiring practices into my awareness.)

Like many other geeklaw & policy folks, I was baffled from the get-go by the decisions of federal prosecutors to pursue massive criminal charges against Aaron Swartz for downloading papers from JSTOR. I could understand that his activities constituted problematic behavior, but not the blustering punitive response.

If Aaron's wrongful act was unauthorizedly copying articles, copyright law would seem to have been the appropriate venue for a response. JSTOR declined to bring a civil suit against Swartz. State officials had no intention of bringing criminal charges against him, either. But then the federal prosecutors stepped in, and charges blossomed all over the place. But -not copyright charges-.

Even though prosecutors' rhetoric in PR statements and press briefings invoked the rhetoric of "theft", "stealing", and unauthorized copying, the criminal charges were not based in copyright law. Instead, the prosecutors brought charges under the Computer Fraud and Abuse Act and other similar statutes. If the harm truly was in the unauthorized copies, why not bring charges of criminal copyright infringement? It's possible the prosecutors might have had a hard time making such charges stick (only one of the three definitions of criminal copyright infringement even plausibly applies); it's possible the prosecutors didn't think the penalties for criminal infringement were punitive enough.

Which raises the question: why criminal charges at all? The supposed distinction between civil cases (where person Q can sue person R) and criminal cases (where the government brings charges against person R) is that criminal cases involve harms to society, to all of us. Was Swartz's downloading a harm to all of us? The federal prosecutors certainly invoked the social harm of theft of copies - but didn't bring the charges the law provides to address that act. And if the social harms of copyright infringement, the damages to the businesses of content providers, are such terrible things that violators deserve extensive jail time (in excess of that available if the charges had actually been brought for copyright infringement), what to make of the fact that there is no law that provides criminal penalties for patent infringement? 

So it was with all these concerns floating in my head, that I read in an email yesterday that the U.S. Department of Justice is considering intervening in a civil copyright case - considering intervening on behalf of commercial publishers against the proposition that there is any legal right to make copies for non-profit, educational use. They are not considering intervening on behalf of the educational users, despite the fact that the copyright statute invokes "multiple copies for classroom use" as an example of legal, permitted fair use.

I am incensed that DOJ staff time was used to even draft this motion - they are asking for more time to decide whether they should get involved in the case, but they have clearly indicated that there is no way they will get involved in the case on behalf of legal educational users. In theory, the government brings charges in criminal cases because there is societal harm. The Georgia State litigation is not a criminal case. This is a case where two parties disagree about the legitimate interpretation of a law.

This situation is as if McDonald's decided it did not approve of the way some of its customers ate their burgers, sued them for violating a law that left open the possibility that the way the customers were eating their burgers was perfectly fine, and instead of letting the usual court processes decide the disagreement, the government decided that they should help McDonald's make their customers eat the way McDonald's wants them to. For the government to even consider intervening in this case signals (incredibly much more intensely than I have thought in my most cynical moments) that they do not think there are any valid interests in copyright other than that of business entities engaging in commercial, market activities.

Anyone who relies on fair use in any part of their lives (and we all do, these days), should be very concerned. The idea that there is an actual public interest related to copyright - despite the ways copyright is increasingly intensely entwined in basic activities of our daily lives, and in issues of free and fair access to information, cultural participation, and democratic engagement - remains (and is perhaps increasingly) an alien concept to our government. 

A lot of people I talk to are kind of reluctant to try to change any terms when they're presented with a contract to sign in their daily lives. It's true that a lot of the contracts we're presented with in daily lives really -aren't- negotiable (ever read the back of your Best Buy receipt, or tried to customize the iTunes terms of service?) But we also do sometimes have real contracts in front of us, with real people on the other end - and yet, a lot of people never negotiate. Here's a few theories I have about why people don't negotiate:

• Negotiating about contract terms is not worth my time!
  Often associated with "I didn't read it", and with a side order of
  • "This is too complicated for me to understand"
  • "It doesn't really matter what I agree to", and/or
    
  • "They're not out to get me, so it'll all be fine."
• Negotiating about contracts is rude
• Negotiating about contracts is really scary!

As to the first reason for not negotiating: if you subscribe to any version of this, you're just being ridiculous. If a contract is too complicated for you to read, it is -very likely- not to favor your interests. If the other party wants to deal with you fairly, they'll be willing to rewrite it in ways you do understand, or they'll encourage you to review it with an expert, such as your own lawyer. Also, it -does- matter what you agree to; which you'll find out if you ever end up in legal interactions about the contract, or even if you need to continue business dealings with the other party in the future. And while the other party may not be out to get you, even the most honorable contract-drafter writes their contracts to deal with their own issues and needs; most drafters write to give their "side" as many advantages as possible.

As to the second reason: it's totally possible to be extremely rude when negotiating, if you behave rudely while you're doing it. However, if a polite request to discuss the terms of a contract is met with offense, the offended party may be trying to intimidate you into signing something that's not advantageous to you. That's definitely not always true - there are people who are actually offended by requests to negotiate. But that offense may indicate some other reasons to be wary of doing business with those folks - they may not very good at treating business as "business".

As to the third reason: yep, negotiating can be scary. Especially if you are not used to, or just not comfortable with, asserting yourself. Especially if the other party has something you want, or has more power than you (be it social power, economic power, physical power, etc.) Especially if you think asking to negotiate may take the whole deal off the table.

These reasons not to negotiate are harder to counter, because they are totally valid feelings. I will say that asserting yourself (usually, often, sometimes?) gets easier the more you do it - and can be way more dysfunctional at the other end of the spectrum (see, e.g., Donald Trump.) I will say that asking to negotiate with people who really do have the intention to do business will rarely result in them taking the whole deal off the table - though they may, in fact, refuse to make any changes. And finally, I will also say that, if someone wants you to sign a contract with them it is almost always because -you- have something -they- want, too - and that gives you some power to build from!

Coming soon: times when I have negotiated about copyright, and about other issues. In the meantime, have I left anything out? What other things have you seen that have made it hard for people to negotiate?

Today, I was showing a bunch of colleagues how to use YouTube's auto-captioning feature, and letting people do some demo videos. My colleagues recorded videos of themselves reading poetry, or reciting song lyrics - and those videos are probably technically derivative works!

But the captions themselves are derivatives of the videos - so when your initial video is itself a derivative work, the captions are a derivative of a derivative... (Captionception!)  Theoretically, the videos themselves could be infringing - in which case, creating the captions might itself be infringing! Horrors!!!*

Anyway, one of the transcripts is so -extremely incorrect-** that I'm wondering if it could really be called a derivative work at all. Technically, it is of course "derivative", in that it is a poem re-rendered in text by transcription of a recorded recitation. But here's the transcript - can you tell what the poem is???

called fast injuries forestry in style i
says a broken remembered that cannot buy
house passed a jury instrument reinstall
life as a parent
field trials in the snow

I will even add line breaks for you in the appropriate places:

called fast injuries
forestry in style
i says a broken remembered
that cannot buy

house passed a jury
instrument reinstall
life as a parent field
trials in the snow

What do you think? Derivative work? Masterpiece of computer-generated absurdist original art?? (Can unintentional computer-generated anything truly be considered original???) Now I'm just making my own brain hurt.

*I do not think anything we did today was in fact even remotely plausibly infringing.
** The auto-caption feature is usually much better than this - it was recorded in a loud room with a lot of background noise.

If you follow me on Twitter, you may have seen me mention my bike, and/or riding bikes, juuuust a few times. I've been bike-commuting in good weather pretty much since I moved to MN a couple years ago, but last winter, due to construction on campus that made buses much less convenient, I kept on riding in the fall. And kept riding, and riding, on through the winter, much to my own surprise! I was sure eventually, things would get too cold to handle, but that never happened!

Last winter was particularly mild, so I know I've still got a lot of things to learn about winter biking (the coldest temp I've ridden at so far is abt 6 °F/-14.44 °C). But because I was pretty surprised by what gear turned out to be most key to continued comfort (hint: very little purchased at bike shops), and because some friends have expressed interest, I thought I'd do a quick rundown.

1. Studded tires

Worth EVERY PENNY. I have a long-time winter biker friend (who has ice-raced Lake Nokomis on a unicycle(!)), who is always trying to tell me how I don't need studs except when things are really bad, and how annoying studs are to ride on... STUFF THAT! They give me a huge confidence-boost anytime there's any patches of ice out there - sure, you can roll across an ice patch on slick tires, but gods help you if you need to steer...

Also, they make you feel like a super hero on packed snow. Quite fun.

2. Ski goggles

I don't see that many winter bikers using these, but they are AWESOME. I've had very little human-powered fun as cool as riding into a snowfall with the flakes flying at my face -but not obscuring my vision-. The goggles themselves do obscure my vision a little bit on the sides, but surprisingly little, and the kinds of scarves or face-coverings I'd need to wear otherwise would also get in the way.

They can be a little frustrating in warmer cold weather (just below freezing) because they fog up a little when I stop at a light or something - but that may also be because I wear a pair of goggles that fit over my glasses, and the glasses sometimes fog before the goggles. As long as I'm moving, they all un-fog right away, and if I notice a buildup, I'll pull the goggles off to vent when I'm stopped.

3. Mittens

BIG LEATHER MITTENS, to be exact - of the kind often referred to as "chopper mittens" (online explanations for that moniker differ, but mostly have to do with chopping wood.) I was hankering after some "lobster claw" bike mittens for a while, but those cost $80/pair, and I noticed that the real pros (longtime winter bikers) seemed to all have filthy old leather mittens. They are a lot cheaper, the leather provides a decent grip, and they work awesomely well at keeping my hands warm and dry.

This kind of mitten usually comes with polyester "fleece" liners that feel awful and make your hands really sweaty. I am hugely lucky to have a pair of hand-knit wool liners (in colors of my choosing, even) made by my lovely colleague Amy West. I'd strongly encourage others to swap out the icky poly liners for wool, even if they cannot get such excellent liners as mine (viewable at left.)

In warmer weather, I wear just the leather mittens, or even just the liners sometimes. Mittens of any kind are much warmer than gloves, because the fingers get to cuddle up and share body heat.


4. Wool  (warning for discussion of slightly gross things like sweat and pit-stains)

Wool shirts, sweaters, socks, long underwear, mitten liners, hat, everything.

Gross but true, you get about as sweaty riding in the winter as you do in the summer. Or I do, anyway. Wool is a key element of my riding wardrobe because it continues to insulate even when its wet, AND because it is naturally resistant to trapping odors. There are technical fabrics that achieve the first half of that equation well, but for me, they smell bad in a way that washing doesn't help even after just a couple wearings. Wool sweaters resist smelliness through multiple wearings, and wash clean every time. The only wool clothes I have that don't smell super-fresh after a wash are the tight-fitting shirts, and those only smell where that inevitable deodorant buildup gets into the armpits.

Being a lifelong cold-climes resident, I already had wool sweaters that could be dedicated to the commuting cause, and socks, and a hat, etc. Have plans to do some thrift-store digging for old wool pants to put _over_ everything when it gets colder. But I've really invested in wool shirts - they're my everyday baselayer starting in early fall, now.

Quick review of brands, because wool baselayers are a little trendy lately, and costly:

• My one Ibex shirt is the prettiest color of wool shirt that I own, and also far and away the most expensive (even though I think I bought it on sale.) It doesn't feel particularly itchy, but it's not exactly smooth. Extremely lightweight, great for fall days that start chilly and end up sunny and warm on the way home.
• I have a ton of Terramar wool shirts, both the midweight Thermawool line, and the slightly lighterweight (and unfortunately named) "Hottotties" line. These are far and away the most affordable brand I've tried ($30-50 on Campmor.com, often on sale.) Only available in black and dark plum, but both feel pretty good against the skin. The Hottotties ones are cut well (no, seriously, someone rolled down their car window to ask me the brand name at a stoplight once), and they have thumbholes, which are extremely convenient for layering.
• I just recently got a couple SmartWool hoodies on sale. Definitely the most comfortable against the skin of all the brands. Usually pretty expensive. Available in more colors, but the ones on sale were pretty bland. Cut well. The thumbholes are even more robust than in the Terramar shirts.

I don't think most men's wool shirts come with thumbholes. That's sad. Speaking of the unfairness of men's-styled fashion...

5. Boots

I have two pairs of calf-height leather boots that I wore through most of last winter, one Merrell and one Keen. (They cost a bunch (but are things I'd have been wearing anyway). One was new last year, one from the year before. Hopefully both to last for a few more years at least.) These are awesome for keeping the wind off my shins, and I -don't have to carry a change of shoes- to look presentable for work!

People who wear women's-style boots have a big advantage here, because few men's-style boots go up so high on the shin, and a lot of men's-style boots are cut so wide that they are pretty clumsy on a bike pedal.

6. Windbreaker

I don't have this one all the way solved yet. Wind-proofing is extremely key, especially on the front of your body, and waterproofing is important is slushy weather. But so is venting heat.

I wear a very wind- and water-proof REI windbreaker as a top layer, with the pit-zips all the way open on all but the very coldest days. A lot of days, I also unzip the jacket front (and sometimes even my sweater) partway through the ride - it's helpful to have a zipper-pull that's easy to grasp with mittens on. On really wet/slushy or -extremely cold- days, I also have a pair of big ole rain pants that go over my lower half.

I say this one isn't completely solved, because the waterproof jacket and pants inevitably are soaking wet on the inside - from moisture generated on the inside - by the time I get from one end of the commute to the other. But they dry quickly if left inside-out.

7. Lights/reflectors

It's DARK IN THE WINTER. Without lights, NOBODY CAN SEE YOU.

I have a big, bright headlight, a flashy white light on the front of my helmet, a flashy red light on the back of my bike, and I have a spoke light that I haven't gotten on yet. I would like to add at least one more rear-facing red light, on me or on the bike.

My studded tires have a reflective rim (which makes me -much- more visible from the side. The next non-studded tires I buy will also have this.) My zipper pull (on view at right) is a reflector (and a grumpy & headstrong icon of Finnish children's literature!) (I've seen this great product, "Glimmis" around, mostly in Scandinaviana stores, but I've only seen the Moomin characters -in Scandinavia-.) My jacket and pants (and warmer-weather bike gloves) have reflective highlights. I've added reflective stickers to a bunch of surfaces on my bike, bike bag, and clothing (and need to add some more.)

8. Random other stuff

I do have a neoprene facemask. It fits well with the ski googles, but it's not that comfortable (and sometimes gets a little snotty, ick.) I wear multiple layers of socks - and on the coldest days I've ridden, even that isn't enough. I've heard a layer of newspaper inside your shoes can help, and do mean to try that.

Non-gear-wise:
- Falling down really doesn't hurt _that_ much, especially if you're sticking to speeds that feel safe when it's icy. But then, I have both a) years of experience in contact sports, so may have skewed perceptions, and b) lots of padding. (ETA - I have fallen way more often in warm clear weather, and in rain, than I ever have in winter. And not with any frequency under any conditions.)
-  I imagine biking in the cold would be a significantly different experience for someone whose body mass is a lot lower than mine, or even for someone who is of similar mass but with less insulation. I suspect gear choices might work out quite differently for those folks.

So, anyway, that's some stuff I've learned. Here's a couple other sets of useful hints and tips:
http://www.tcdailyplanet.net/news/2012/11/20/surviving-cold-two-wheels-10-tips-winter-biking-minnesota (Thanks for the link, Meghan!)
http://www.tcdailyplanet.net/news/2010/11/23/grease-rag-guide-winter-biking

And now, back to your irregularly-scheduled copyright-geekery...

Incidentally, all the images in this post are ones I took myself, so consider them under the same CC-license as the post. (Though the Little My Glimmis contains other folks' copyrights & trademarks.)