It's almost Easter, so it must be time to talk about Daleks again...

If you've read the saga of the Dalek egg, you know that I made an easter egg that looks like a Dalek (from the TV show Doctor Who) as a gift for a friend a few years back, and posted my photos online with a Creative Commons Attribution license. It keeps making the rounds.

An easter egg decorated to look like a DalekLast night, I got a message from a friend on Facebook -

Message - Thinkgeek shared your Dalek egg an hour ago on Facebook and it already has 3,400 likes!As always, I'm more curious than anything else about how, why, and whether users provide credit. ThinkGeek had gotten close - providing both my Flickr username and a link back to the original image, but there was no mention of the Creative Commons license. Which is, in my mind, a really key element of using CC images, and the thing users most often leave out.

I think people omit mentioning the CC license, because the general ideas around credit are that the creator's -name- is the most important thing. And online, linkbacks, I guess.

But the thing with Creative Commons is, other people don't know CC exists unless they see it mentioned. To me, the most important part of crediting my images is acknowledging the CC license!

It's true lots of people don't know about that part of CC licenses, but the friend who sent me the initial link does, and she's not a copyright geek. (She's all kinds of other wonderful kinds of geek, but not a copyright geek.)

Me - Did they actually do the CC license credit - Her - They linked to your Flickr and used your username but did not mention the license. So close?Mostly, I ignore people misusing the Dalek egg images online. But I love ThinkGeek, so I sent them a message.

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Hey there, that's my dalek egg you're using to drive traffic on your page. While you and the rest of the world are -more- than welcome to make use of the image under the terms of its Creative Commons license, you are not actually meeting the terms of my Creative Commons license.

You've managed to credit me by username, which is awesome and -is- required by the license, so well done there. You've also linked to my Flickr page, which is also awesome and more than most commercial users have managed.

You have neglected to include the title of the image (which I don't really care about, but is required by the terms of the license). More importantly, you've -neglected to mention that you're using it under a Creative Commons license- which is required by the license, and about which I care really a lot, because how are people going to learn about the awesomeness of Creative Commons if people omit the "what license I'm using it under" part of the use requirements?

I'm only really hassling you about this because I think ThinkGeek is pretty cool, and I think you can do better than this. Lots of online idiots have used it without any credits or anything, and I don't bother with them. Prove me right that you're good peoples?
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AND THEY FIXED IT! (Their first attempt wasn't quite right, but then they got it absolutely perfect.)

screenshot of the Dalek egg photo on the ThinkGeek Facebook page with full credit and an acknowledgement of the CC Attribution license
Also, 7,660 likes? The internet is really weird about Daleks.

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Additional observation from a friend - BoingBoing didn't follow Creative Commons Attribution practices any better when they first blogged it in 2010, but as a news org, they have a little better claim to have been making a fair use copy (and thus not needing to follow the terms of the CC license, because they aren't making use of the license.)  On a -very- quick overview of about four recent photos, they seem to not have very consistent captioning/credit practices.


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Joys of the Public Domain: Getcher "Lean In" Images Here!

I'm deeply ambivalent about the whole "Lean In" thing. Much less so about the very cool "Lean In Collection" from Getty Images, which aims to create stock photography that doesn't reinscribe stereotypes.

However, you do still have to pay for/license uses of the Getty Images. This morning I was showing someone how to search the cultural institution "Commons" collections on Flickr, and discovered to my delight that searching for the word "scientist" returns PILES of historical images of women in science (many from the Smithsonian) - all of which have "No Known Copyright Restrictions"!

Here's a few of my favorites - do click through to the full image files to read the fascinating stories of these scientists!

First, this delightful series of portraits of Norwegian zoologist Kristine Bonnevie:
PortrettavKristineBonneviesomung.jpg PortrettavKristineBonnevie-middle.jpg PortrettavKristineBonnevie-older.jpg
Portrett av Kristine Bonnevie som ung, Portrett av Kristine Bonnevie, and Portrett av Kristine Bonnevie - all courtesy Nasjonalbiblioteket / National Library of Norway

Also quite liked the caught-in-motion feeling of this snapshot of marine biologist Cornelia Maria Clapp
CorneliaMariaClapp-Smithsonian.jpg
Cornelia Maria Clapp (1849-1934), courtesy Smithsonian Institution

But there are so many nifty portraits in here, that I decided to focus on pictures of the scientists -at work-. Which is still tons & tons of pictures.

LiseMeitnerwithScienceTalentSearchFinalists1946-Smithsonian.jpg
Archaeologist Anne Stine Moe Ingstad (1918-1997). Created by National Geographic Society, courtesy Smithsonian Institution.

AnnaChaoPai-Smithsonian.jpg
Geneticist Anna Chao Pai (b. 1935). Photographer: Ted Burrows. Courtesy Smithsonian Institution.

AlmaWhiffenBarksdale-Smithsonian.jpg
Botanist/mycologist Alma Whiffen Barksdale (1916-1981). Courtesy Smithsonian Institution.

JeanneHelenOsiecki-Smithsonian.jpg
Polymer chemist Jeanne Helen Osiecki (b. 1926). Courtesy Smithsonian Institution.

CeciliaHelenaPayneCaposchkin.jpg
Astrophysicist Cecilia Helena Payne Gaposchkin (1900-1979).
Courtesy Smithsonian Institution.

RuthColvinStarrettMcGuire.jpg
Plant pathologist Ruth Colvin Starrett McGuire (1893-1950). Photographed by
United States Dept. of Agriculture, courtesy Smithsonian Institution.

BerthaParkerPallan[Cody].jpg
Archaeologist Bertha Parker Pallan [Cody] (1907-1978). Courtesy Smithsonian Institution.

GertrudeVanWagenen.jpg
Biologist Gertrude Van Wagenen (1893-1978). Courtesy Smithsonian Institution.

MaryAgnesChase.jpg
Botanist Mary Agnes Chase (1869-1963), sitting at desk with specimens. Courtesy Smithsonian Institution.

MurielEMussellsSeyfert.jpg
Astronomer Muriel E. Mussells Seyfert (b. 1909).Courtesy Smithsonian Institution.

MaryAliceMcWhinnie.jpg
Biologist Mary Alice McWhinnie (1922-1980).  Courtesy Smithsonian Institution.

RubyHirose.jpg
Biochemist/bacteriologist Ruby Hirose. Courtesy Smithsonian Institution.

FredericaAnnisLopezdeLeodeLaguna.jpg
Anthropologist Frederica Annis Lopez de Leo de Laguna (1906-2004), standing and talking at meeting with Kaj Birket-Smith (1893-1977). Photographer: Fremont Davis. Courtesy Smithsonian Institution.

JaneBlankenshipGibson.jpg
Chemist Jane Blankenship Gibson. Courtesy Smithsonian Institution.

DoritaAnneNorton.jpg
Crystallographer Dorita Anne Norton (1931-1972). Photographer: Don Glena. Courtesy Smithsonian Institution.

Chien-shiungWu.jpg
Experimental physicist Chien-shiung Wu (1912-1997), in 1963. Courtesy Smithsonian Institution.

DrBerylNashar.jpg
Geologist Dr Beryl Nashar, 1955. Courtesy State Library of New South Wales.

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Spring 2014 Copyright Workshops open for signup!

Upcoming workshop sessions at the University of Minnesota. Non-UMN folks are welcome, but please check in with the instructor first (especially for the online sessions)!

Copyright In The Classroom (and Online)
Can you show a movie in class? Can you distribute copies of a newspaper article? What are you allowed to post on your Moodle site, anyway? What about your students' work, or their online postings? This workshop focuses on copyright issues in the classroom, and in teaching online. Learn how the library can help you with electronic reserves and links to subscription materials. No direct legal advice will be provided; this workshop is informational in nature.
Primarily intended for individuals currently teaching at the University. NOT eligible for RCR continuing education credit.

Monday, March 24, 2014
10:00 am - 12:00 pm
Magrath Library Instruction Room (Room 81)
Register

Thursday, March 27, 2014
2:00 pm - 4:00 pm
S30A Wilson Library
Register

Monday, April 21, 2014
1:00 pm - 3:00 pm
Online-only interactive session
Register


Know Your Rights: Copyright Essentials for Authors and Creators
How many copyrights do you own? How long will they last? Can you post your paper online? Can someone else quote from your paper in their own? This workshop will provide a solid grounding in some of the elements of copyright law that are essential to scholarship, teaching, and research. Learn more about protections in the law for educators, and about your rights as an author or creator. Discuss and debate with your peers about some of the burning questions in the field, and enjoy exploring some entertaining and thought-provoking examples. No direct legal advice will be provided; this workshop is informational and educational in nature.

Primarily intended for faculty, researchers, and graduate students engaged in the scholarly writing & publishing process. Satisfies RCR continuing education awareness/discussion requirements.

Thursday, April 10, 2014
10:00 am - 12:00 pm
310 Walter Library
Register

Friday, April 11, 2014
10:00 am - 12:00 pm
Online-only interactive session
Register

Wednesday, April 16, 2014
1:00 pm - 3:00 pm
Magrath Library Instruction Room (Room 81)
Register


Can I Use That?: Dealing with Copyright in Everyday Life
Quotation, criticism, review, collage, parody - Copyright presents some big challenges in all of these situations! Participants in this workshop will develop an understanding of the complexities of copyright by exploring examples from visual arts, music, and video, as well as academic research and writing. Expect to think hard, discuss a little, and have fun! No direct legal advice will be provided; this workshop is informational in nature.

Primarily intended for faculty, researchers, and graduate students engaged in the scholarly writing & publishing process. Satisfies RCR continuing education awareness/discussion requirements.


Monday, April 14, 2014
10:00 am - 12:00 pm
Magrath Library Instruction Room (Room 81)
Register

Thursday, April 17, 2014
2:00 pm - 4:00 pm
310 Walter Library
Register

Wednesday, April 30, 2014
10:00 am - 12:00 pm
Online-only interactive session
Register
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Where copyrights come from (part I) - Copyediting does -not- create a new copyright

In US law, copyright magically comes into existence when someone creates an original work of authorship. The copyright is actually based in the original expression contained in the work, not whether there was effort involved in the work's creation. So for the specific arrangement of words (+/- images) that make up a particular journal article, there is definitely a copyright in the final (post-review) manuscript - but subsequent changes that do not substantially alter the expression in that manuscript do not themselves create a new copyright.

So when an author transfers the copyright "to an article", they unquestionably transfer the copyright in the final manuscript -and- the copyedited, typeset version of that manuscript. The original expression in those two versions of the article is -one and the same-, and thus, so is the copyright. 

I have personally gotten pushback on this point, and seen public disagreements on this point, from both authors and publishers. The substance of publishers' disagreement has usually focused on the value that they add to the author's contribution - but the absence of a copyright in a particular product or activity does not equate to an absence of value. Copyrightability is not a commentary on value, it's reflective of -original expression-. Publishers add value (varying amounts, depending on publisher, sometimes) through managing peer review, copyediting, typesetting, and other services - but unless they contribute significantly different and new authorial expression, these valuable services don't have any relation to copyright.

Most of the authors I've seen contesting the idea that the copyright in a final manuscript and the typeset published article is the same, on the other hand, have had a different disagreement - they're pretty sure they're allowed to post their final manuscript online, but that the typeset version is in the exclusive purview of the publisher. In many cases this is a true statement, but not because those different versions of the article present different copyrights, with the copyright in the manuscript belonging to the author and the copyright in the typeset version belonging to the publisher. Authors who have transferred their full copyright to their publisher are often allowed to post final manuscript versions - or sometimes, pre-peer-review manuscript versions - by publisher policy, or by a specific clause in the publication agreement. 

Where neither publisher policy nor any extra publication contract clauses allow posting manuscript versions of an article, authors who have transferred away their copyrights do not have the right to post those versions. (Except to the extent that any other non-owner individual might have the right to copy or post the article, fair use or otherwise.)

This seems to be a controversial statement to many people who read Kevin Smith's blog post last week (which was itself partially in response to the surprise of authors who've received takedown notices about self-posted copies of articles in the last few months.) I said on Twitter, and say here again, that there seems to be an element of wishful thinking in this 'controversy' from authors who have not been paying much attention to their publication contracts until recently (or at all.) If the manuscript and the typeset version of the article are different copyrights, then they haven't been transferring -tons of control over their works- to publishers.

But if that's true, there's no reason for SHERPA/RoMEO to exist. There's no reason several authors I've talked with have received quotes for the permissions fees needed to include their own previously published works in (newly typeset) retrospective volumes. There's no reason why, when an author wants to re-use a figure from an earlier publication, most publishers require authors to get permission from the publisher of the earlier publication.

The details of publication contracts matter

(While I love the resources that library folk at UMN and elsewhere have developed to help academic authors understand what they own and what publication contracts do, I also encourage authors to consider some of the resources available for/by freelancers who work on other aspects of content production. From certain perspectives, academic authors look a lot like freelancers producing content for publishers. Katie Lane at Work Made For Hire has some eminently readable, and relevant, stuff - check out points 2 and 3 of this post on contracts, for example.)

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Obviously, this post is a response to the response to Kevin Smith's piece from last week in which he addressed longstanding confusion around copyright in different versions of a published article, and in what kinds of things authors can do with different versions of their articles. I had a really interesting exchange on Twitter this morning with Charles Oppenheim, who wrote a detailed response to Kevin's post, arguing that Kevin is incorrect. I still agree overall with Kevin's analysis, which he clarified in another post today - but I do agree that at some point, different versions of a work can be legally separate entities. I'm not sure that point is where Charles thinks it is - that is, I'm not sure that the pre-review draft has a separate copyright than the version that contains post-review edits (in his article, he uses the useful shorthand of "D" for draft, and "F" for final manuscript.) If the pre-review draft has a separate copyright, why do some publisher self-archiving policies distinguish what can be done with "D" and "F" (subsequent to a transfer of "the copyright" in an article)?

I think the disagreements of these thoughtful commentators really lodge in the nuances of rights in works developed over time, through major revision. If copyright arises at the "moment" of creation, what are the relevant moments? In law school, I had a computer that shut down unpredictably, so I developed a "Ctrl-s" reflex. I'm pretty sure there are not 693 different copyrights in my 3L independent study paper, but I'm also pretty sure that some of my drafts contained entirely unrelated expression (yay starting over partway through) and thus would have different copyrights.

These nuances are something I do want to dig in further on; hopefully in another blog post soon (hence, "part I" above). The way copyright law deals with issues like the "moment" of creation, what constitutes a derivative work, and "substantial similarity" is not very responsive to the actual processes of human creativity. Not that this is news, really; the relationship between copyright and reality is fraught in general.


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If takedown notices are what it took for you to -really think- about rights ownership in your publications...

Last week, Academia.edu started receiving mass takedown notices from Elsevier (an academic publisher) for papers uploaded to the site by their authors. This has come as an offensive surprise to many of the authors who received the notices, and to many other academic authors who heard about the takedown requests. That surprise is pretty valid - generally, academic publishers have, until this point, looked the other way about copies of articles distributed by the articles' authors, even when posted to for-profit sites like Academia.edu.

However, some of us who have been working for a while to help authors understand their publication rights are a little frustrated at the surprise. After all, we've been talking about some of the -other- results of authors' transferring away their copyrights for a while. Apparently, for some folks*, the following were not compelling reasons to -really think- about what happens with the copyrights in their publications:

  • Authors being required to get (and pay for) permission to reproduce parts of their own work in subsequent publications.
  • Authors being unable to post articles on non-profit/institution-hosted archives.
    (Or rather, such archives (naïvely?) telling authors to only upload works which they are sure they have the right to upload.)
  • Academic publishers actively suing a public university for using published articles in course contexts.
  • Lack of access for researchers at smaller or less well-funded institutions, or those unaffiliated with an institution that has subscriptions.
    (More than one academic has flat-out told me "it's not really true that people don't have access." Um, it's true there are often ways that people can -get- access if they have money or are willing to violate the copyright that now belongs to your publisher. If the copyright belonged to you, I think you might have a problem with that practice.)
  • Lack of access for researchers in the developing world.
    (Several publishers do have programs that allow limited access by developing-world researchers.)
  • High costs to the authors' own employing institutions in purchasing access to publications.
    (Subscription costs: up just about every year. Subscription budgets: often flat or down. And academic libraries are fairly frequently told to that they must "preserve collection budgets" while cutting costs.)
  • Clunky online interfaces that make it very difficult to link to legitimate versions of publications, even within subscribing institutions.
    (The linking functions of subscription interfaces are annoying, non-standard, and likely to break. Those interfaces are provided by publishers.)

I'm glad there was such an active and vibrant response to the Research Works Act last year, or I'd have to start getting more cynical...


*My frustration is with the general "what? takedown notices??? For things in which the publisher owns the copyright, and that have been uploaded to a commercial competitor????" response, not with any particular individual. As I say whenever I talk author rights with individuals: each author has different goals, influences, and requirements at various stages of their careers - there is no "one size fits all" publication answer. Most of the authors I've seen writing about this issue clearly -have- been thinking about their publications' rights, at least to some degree.
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Extremely off-topic: cold-weather bike gear update

Last year at this time, I did a post on things I'd learned in my first full winter (2011-2012) bike-commuting. If you're interested in giving winter-biking a try, go read that first.

However, with a second (and rather colder) winter (2012-2013) under my belt, and heading into a third, here's a few additional observations.

1. YOU NEED MORE LIGHTS

Really. In winter, no matter what, you're riding in the dark more often. Riding in the dark, especially on roads with cars, is DANGEROUS. Bikes are very hard for drivers to see - harder than pedestrians, because we're moving faster, and often are at a very bad angle for visibility. DO NOT RELY ON REFLECTORS. I frequently cross paths with other cyclists I cannot see.

At the very least, you should have an actively-lit headlight (white) and taillight (red) all the time. I usually have at least two headlights and at least two taillights going - the second set is on my bike helmet. I also often have another red taillight somewhere (this is because I carry loads on my back rack that sometimes obscure the basic light.) I also usually have -other- other lights in different colors hanging on my jacket or bike frame, and I have a green spokelight in my back wheel.

I really like the Nite Ize brand for lights-that-make-me-visible. They don't cast enough light to light the road ahead of you - you need a brighter headlight for that.

(I also have reflectors on my tire sidewalls, randomly scattered around my bike, on my helmet, on several pairs of shoes, and I wear a jacket with reflective stripes.)

2. Found a windbreaker I like a lot better

My first year, I used a low-end REI rain jacket with a plasticky lining. The lining broke down quickly. Last winter I bought a Novara Stratos jacket (I got a men's jacket, for layering, but wow the available colors right now are hideous) and Stratos pants. The lining is -much- hardier, as is the whole jacket. The pit zips do well with venting, and the reflective trim is a great feature. I don't use the pants quite as much until seriously wet winter, but I've already been wearing the jacket for the last several weeks.

3. At lower temps, toes are even harder to keep warm

Last winter I rode quite a few days below 0 °F (- 17.78 °). (My record is now -12 °F.) It doesn't matter how many socks you layer, toes get too cold. (Also, at a certain point more layers in your boots = cutting off circulation.)

The solution: toe warmer packs. You have to expose them to air to get the warmth going, so I open them a few minutes before I put boots on, then stick them to me at the last minute. You barely feel heat, but you don't freeze!

4. Still love...

...my chopper mittens & liners, ski goggles, and wool shirts.


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Google Books suit dismissed: more affirmation of public interest in copyright

DISCLOSURE/DISCLAIMER: I worked at the University of Michigan Libraries for several years during the beginning of the book scanning project with Google that is the subject of this lawsuit. The University of Minnesota Libraries, my current employer, is also affiliated with the Google scanning project and HathiTrust Digital Library. This post represents only my own opinions and thoughts on the case, not that of any current or past employer or co-worker.

This morning, Judge Denny Chin issued an opinion in the massive, many-year lawsuit between the Author's Guild and Google over the Google book scanning project. Just a couple years ago, many possible outcomes were anticipated - and few of them would have provided much clarity for anyone except Google.

Instead, we got a ruling today which dismissed the case, ruled several different research and public interest activities were fair use, and in general, was very positive about the public benefits that this project has produced.

Quick Aside on Court Procedure

Despite the many years of booting around various class action certifications and possible settlements, the end result is that this case was dismissed fairly early in the full court process. As with the HathiTrust ruling from last fall, this opinion dismisses the case on summary judgment - that means the court has determined that there are no substantial factual points in contention, and the legal arguments so clearly favor one party that there is no need for a trial. Appealing a dismissal on summary judgment is generally a weaker place to be than appealing an opinion after a trial. (Though of course, in the HathiTrust case, the Authors Guild has indeed decided to appeal, and it will likely do so here as well.)

Fair Use Analysis

The main issue on summary judgment here was whether Google's book scanning was fair use. Judge Chin affirms that it is, for several different reasons. He appears to have been influenced both by amicus briefs from a variety of public interest organizations, as well as the HathiTrust ruling from last fall.

Judge Chin's fair use discussion begins by reminding us that it is "copyright's very purpose, '[t]o promote the Progress of Science and Useful Arts.''" He cites a variety of case law (as well as Leval's seminal fair use article) affirming that both incentives to authors -and- opportunities for others to use "protected works" are necessary to achieve that purpose (p. 16-17). As an advocate for the public interest in copyright, it is always heartening to see courts acknowledging that progress is the main goal, and that protection for creators is only one part of a considerably larger equation. (A frequent theme of my teaching is that we are all users and creators - creativity is an ecosystem.)

Judge Chin does dig in to the traditional four fair use factors, although on more than one occasion he notes that they are non-exclusive, and that other relevant considerations should also be weighed (p. 18, p. 25).

For the purpose factor, Judge Chin focuses quite a bit on transformative use, and notes approvingly that "Google's use of the copyrighted works is highly transformative" (p. 19). He approves of  "the use of book text to facilitate search through the display of snippets" (p. 19), as well as turning "book text into data for purposes of substantive research, including data mining and text mining" (p. 20) as transformative uses.

Chin's fair use analysis follows a line of cases from the 9th Circuit that looked at thumbnail uses of images as transformative fair use - and one outcome that the publisher/plaintiffs may have been looking for by bringing this lawsuit in the generally-more-conservative 2nd Circuit was to create a "Circuit split" on this issue (which often opens up avenues for Supreme Court appeal.) This could possibly still happen on appeal, but it seems pretty unlikely at this point. Instead, as commentator/law prof James Grimmelmann summed it up in a tweet: "I feel safe in saying that search indexing and snippet display are now definitely fair uses."

Another aside: I am very glad to see that these purposes were ruled transformative and in favor of fair use. However, I was also glad to see affirmed that "transformative use is not 'absolutely necessary' to a finding of fair use" (p. 19). Multiple avenues for arguing fair use is a good thing.

The court also discusses Google's commercial purpose, finding that it "does [...] benefit commercially" but "does not engage in the direct commercialization of copyrighted works" (p. 22). Even considering Google's profit motive, the educational and transformative purposes of the scanning project led Judge Chin to conclude "the first factor strongly favors a finding of fair use." (p. 22)

As to the nature of the copyrighted works, Judge Chin only briefly engages with the factual/creative angle on this question, noting that the "vast majority" of the books are non-fiction. He also notes that all the books have been published, and concludes that this factor favors fair use.

As to the amount used, Judge Chin notes that Google does scan the full text of books, and does reproduce the books verbatim. But, he notes, copying an entire work -can- be fair use sometimes, and "full-work reproduction is critical to the functioning of Google Books" (p. 23).  He notes approvingly that only limited amounts of text are ever displayed, and concludes that the amount factor does weigh "slightly against" fair use (p. 24).

Finally, Judge Chin considers the possibility of market harm. He directly rejects the publisher-plaintiffs' argument that people could use Google Books to piece together a whole book for reading, and states that "a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of the copyright holders" (p. 25).  Notably, he does not engage with the argument discussed in HathiTrust, that scanning without a license harms sales of licenses to scan (although I'm not sure if that was argued in the summary judgment briefs.) He concludes that the fourth factor "weighs strongly in favor" of fair use (p. 25).

After looking to the four factors in detail, Judge Chin enumerates the "significant public benefits" of the project as another relevant consideration. (p. 26) The various benefits he highlights includes that it makes books more findable, that it allows text-mining, that it preserves books (especially out of print ones), that it facilitates access to books for people with print disabilities and for "remote or underserved populations", and that it generates income for copyright holders. "[A]ll society benefits." (p. 26)

Because the plaintiffs also argued in their summary judgment motion that Google was committing contributory infringement by providing scanned copies of books to libraries, Judge Chin also (in quite short order) affirms that library uses are lawful uses, transformative uses, and that they advance the arts and sciences, etc. (p. 27). He states that the fair use analysis of the HathiTrust decision "applies here as well" (p. 28), so neither the libraries receiving the scans, nor Google in providing the scans to libraries, are doing anything wrong.

Library and Cultural Institution Implications

The great thing about this case moving away from class action settlement and towards actual court rulings on the substantive legal issues, is that the resulting rulings do not just apply to Google. If it's fair use for Google to do this kind of stuff, it probably is for others as well.

Like a lot of recent fair use cases, this case affirms the public interest elements of copyright, and how closely fair use is connected to those public interest elements, in kind of screamingly strong language. For institutions that have been reluctant to engage with fair use, this opinion, and the HathiTrust opinion of last year, are extremely strong grounds for contemplating the application of fair use to digitization projects, exhibits, and other such publicly beneficial uses. (The more so because most libraries and cultural institutions are entirely non-profit, unlike Google which has acknowledged commercial purposes.)

This decision, by again affirming the 9th Circuit precedents in a different circuit, also lends weight to many recent best practices or other statements on use of materials in research or museum contexts that have relied on transformative use and related arguments. Examples include the ARL Code of Best Practices in Fair Use for Research Libraries, the AAMD Policy on the use of thumbnail images, the VRA Statement on the Fair Use of Images for Teaching, Research, and Study, and several others.

One fun thing to note is that if you've been thinking, "Well, Section 108 gives us broad preservation digitization rights, but then we can't do anything with the resulting digital files" - hey, making those files searchable, and sharing snippets at least, is looking like a strong fair use! (What's more, digitizing some things that you don't think would be covered by section 108 preservation rights might be fine, too! It might have been before these rulings - but if you were feeling timid before, for goodness' sakes, GET OVER THAT now. If your institution has been reluctant to embrace the risks and uncertainties of fair use, these decisions are reducing the uncertainty, a lot. Or, you know, stick your head in the sand and wait for appeal, or wait for a Supreme Court ruling, or...)

Edited to add: also, negotiating for preservation of statutory use rights in ALL of our licensing agreements is EVEN MORE IMPORTANT than it was before, GLAM folks!!!!

I'm sure there's more to think about here. I note that several colleagues have posted analyses of the decision that I haven't yet had time to read. My reading list now:
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New: Copyright Workshops from UMN Libraries!

The University of Minnesota Libraries offer free copyright information workshops to the UMN community. Most are aimed at faculty, but open to participation by others. RCR continuing ed credit is often available. If these scheduled sessions are not convenient or relevant for you, we also offer sessions for research groups and departments at more convenient times or on custom topics. Please email me if you'd like to set that up.

Please note some sessions are online-only - faculty and others who work out-state or at the Crookston, Duluth, Morris, and Rochester campuses are given priority in registering for online sessions.

Can I Use That?: Dealing with Copyright in Everyday Life

Quotation, criticism, review, collage, parody - Copyright presents some big challenges in all of those situations! Participants in this workshop will develop an understanding of the complexities of copyright by exploring examples from visual arts, music, and video, as well as academic research and writing. Expect to think hard, discuss a little, and have fun! No direct legal advice will be provided; this workshop is informational in nature.

Primarily intended for faculty, researchers, and graduate students engaged in the scholarly writing & publishing process. Satisfies RCR continuing education awareness/discussion requirements.

Mon, 11/25/2013 - 10:00am - 12:00pm
Wilson Library Rm S30a

Wed, 12/04/2013 - 1:00pm - 3:00pm
Walter Library Rm 310

Tues, 12/10/2013 - 10:00am - 12:00pm
ONLINE ONLY via UM Connect

Know Your Rights: Copyright Essentials for Authors and Creators

How many copyrights do you own? How long will they last? Can you post your paper online? Can someone else quote from your paper in their own? This workshop will provide a solid grounding in some of the elements of copyright law that are essential to scholarship, teaching, and research. Learn more about protections in the law for educators, and about your rights as an author or creator. Discuss and debate with your peers about some of the burning questions in the field, and enjoy exploring some entertaining and thought-provoking examples. No direct legal advice will be provided; this workshop is informational and educational in nature.

Primarily intended for faculty, researchers, and graduate students engaged in the scholarly writing & publishing process. Satisfies RCR continuing education awareness/discussion requirements.

Mon, 11/18/2013 - 1:00pm - 3:00pm
Walter Library Rm 310

Thu, 12/05/2013 - 10:00am - 12:00pm
Magrath Library Rm 81

Mon, 12/09/2013 - 1:00pm - 3:00pm
ONLINE ONLY via UM Connect

Register: http://z.umn.edu/knowyourrights

Copyright in the Classroom (and Online)

Can you show a movie in class? Can you distribute copies of a newspaper article? What are you allowed to post on your Moodle site, anyway? What about your students' work, or their online postings? This workshop focuses on copyright issues in the classroom, and in teaching online. Learn how the library can help you with electronic reserves and links to subscription materials. No direct legal advice will be provided; this workshop is informational in nature. NO RCR credit available, sorry.

Primarily intended for individuals currently teaching at the University.


Wed, 11/13/2013 - 1:00pm - 3:00pm
Walter Library Rm 310

Thu, 11/14/2013 - 10:00am - 12:00pm
ONLINE ONLY via UM Connect

Wed, 11/20/2013 - 10:00am - 12:00pm
Magrath Library Rm 81

Register: http://z.umn.edu/copyrightinclassroom
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WARNING: Deeply boring to normal people

ETA: Cross-posted at Techdirt

I attended the hearing today in what the presiding judge, Magistrate Judge Franklin Noel, characterized as "several iterations of" AF Holdings LLC v. Doe (case nos. 12-1445 - 12-1449) The cases at hand have all previously settled and been dismissed, but the court determined it has the inherent authority to investigate whether it has been the victim of a fraud.

The order for the hearing limited the discussion whether the copyright assignment agreements for two films, "Popular Demand" and "Sexual Obsession", attached as exhibits in the various AF Holdings v. Doe cases, are authentic. The discussion during the hearing ranged a bit further afield.

These are my own impressions of what happened, but I don't guarantee their accuracy - I'm not a court reporter, and I'm not fully up on the details of all the Prenda/AF Holdings/etc cases. And I couldn't always hear everything. I've tried to be fairly objective in reporting what I saw and heard, but to own up to my biases, I am an attorney whose interest in copyright sits solidly on the public interest side. I don't represent or have any interests with respect to any of the folks present in court today, to the best of my knowledge. (How's that for lawyer-talk.)

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Individuals present in the courtroom today included:

Paul Hansmeier, lead attorney for plaintiff AF Holdings, LLC
John Steele, formerly a legal partner of Mr. Hansmeier
Brent Berry, northern MN real estate lawyer
Jason Flesher, northern MN resident
Alan Cooper, who alleges his signature was forged on documents related to AF Holdings
Paul Godfread, attorney for Mr. Cooper

And some audience members.

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Mr. Hansmeier began the day by calling his first witness, Steele, and displaying to him on a document viewer the copyright assignment for "Sexual Obsession". Mr. Steele authenticated the assignor's signature as that of Ray Rogers, based on familiarity with Mr. Rogers signature from several instances of business, etc. Mr. Steele also testified that he believed the use of Mr. Cooper's signature on this document was authorized, because Steele introduced Cooper to the owner/controlling member of AF Holdings.

[At this point, and at a couple of later points, the judge asked what exhibit number the documents were that Hansmeier was displaying (since the document viewers don't produce an ongoing copy.) Hansmeier apparently didn't intend to offer the documents into evidence, but the court later entered the copyright assignments in question (originally filed as exhibits in cases 12-1445 - 1449) as exhibits 1 and 2 for this hearing.]

Hansmeier elicited lengthy testimony from Steele as to his knowledge of Cooper's involvement with AF Holdings, his involvement with helping Cooper to form a company (VPR, Inc) to market adult content, and about the nature of Steele and Cooper's relationship over the years. The overview of this testimony is that Cooper was recommended to Steele in 2006 or so as a possible caretaker for his cabin in northern MN, that Cooper lived there subsequently rent-free in exchange for a limited amount of work around the property, that subsequent to Steele's divorce they had hung out more, and that they had been "very good friends by 2010." Steele also testified that he had helped Cooper set up VPR, Inc, that Steele had introduced Cooper to Mark Lutz, and heard Cooper's end of phone calls with Lutz on at least two occasions, and that Cooper had gotten "a kick" out of being associated with the adult industry, and repeatedly joked with friends and others about coming to work for him in his porn company, at least as early as 2011.

Steele testified that he had closed his lawfirm, Steele Hansmeier, over a short period starting in November 2011, because "I was quite frankly surprised with the vitriol and nastiness of the pirates we were pursuing." He mentioned a blog post that showed pictures of his house and small child, and included violent threats against the family. Steele appeared visibly upset during this part of his testimony. Steele continued his testimony to affirm that after closing the lawfirm, he decided to sell his cabin in July of 2012. At this point, the Judge himself intervened to ask what the point of this testimony was; Mr. Hansmeier said it was directed towards motive.

Steele then testified that Mr. Cooper had been angry and hostile once he knew the sale was going forward, and that Cooper had taken items from the property, caused property damage, and attacked or threatened people who came on the property. The judge again intervened, to direct the discussion toward an end point; Mr. Hansmeier then asked Steele about his knowledge of rumors, started by Mr. Cooper, that Steele had molested Cooper's daughter.

Things then got refocused on the topic of the hearing; the copyright assignment for "Popular Demand" was shown to Steele, and he again authenticated Ray Rogers's signature for the assignor, and stated that Steele himself had used this document to file registration documents with the Copyright Office. Then, focusing on the other signature, Steele testified that he did not know if Cooper had signed the documents himself, but spoke to his "understanding" that Cooper had authorized Lutz and his people to sign documents like this on his behalf.

Judge Noel then directed several questions to Steele about the documents in question, and Steele's understanding that Cooper had authorized Lutz to sign on his behalf. Judge Noel elicited that this was based on hearing Cooper's half of two phone conversations with Lutz. Noel also elicited that Steele does not actually know if Cooper signed those documents, but that as far as Steele knew, Cooper had had a position as a "helper" for AF Holdings. Steele testified that he did not know if Cooper was employed by AF - because Steele himself had no involvement with AF, other than them having been very briefly clients of the Steele Hansmeier firm. Finally, Noel questioned Steele as to whether he knew who signed the Cooper name on either of the exhibits, and Steele testified that he did not.

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Hansmeier called Jason Flesher to the stand, who testified that he had known both Steele and Cooper for 4-5 years. Hansmeier began questioning Flesher about the nature of Steele and Cooper's relationship, but the judge redirected him, and he then focused his questioning of Flesher's knowledge of Cooper's involvement in AF holdings. Flesher testified that Cooper's partner, Charity (last name not ever clearly established) had talked with him about her concern over Cooper's adult industry involvement on cabin visits as early as 2011, but that he did not know anything further about Cooper's invovlement in signing documents, or details of his involvements with any companies. The judge briefly questioned Flesher about his knowledge of the copyright assignment documents (none) or familiarity with Cooper's signature (none), and Flesher was dismissed.

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Hansmeier called Brent Berry to the stand, and began questioning him about the nature of Cooper and Steele's relationship, Cooper's behavior after Steele decided to sell the house, and so on. The judge intervened to focus again on the documents, eliciting that Berry had seen Cooper's signature before, but wouldn't recognize it on sight, and did not know if the signature on the documents was Cooper's.

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Hansmeier then called Cooper to the stand. Hansmeier's questions posed to Cooper were often spoken quite quickly, so in a number of instances, Cooper had to ask them to be restated. Cooper also fairly frequently didn't respond directly to the questions, so this part of the recap is a bit more out of order.

Hansmeier's initial line of questioning focused on Cooper's claim that other AF Holdings documents had included forgeries. Cooper wasn't quite sure why he was being questioned about other people's signatures; "I'm concerned about -my- signature." Finally, the judge directed some specific questions about Cooper's knowledge about specific signatures related to the case, and Cooper responded that he did not have any specific evidence about forgeries of signatures for Mooney, Webber, or Salt Marsh. Godfread objected that this seemed to be litigating the motion pending in October, and this was sustained.

Hansmeier began a new line of questioning, about Cooper's testimony in other courts as to his involvement with AF Holdings. Cooper acknowledged that he became aware that his signature was being used related to AF Holdings in late 2012. Cooper stated that Steele had told him at an earlier date that if anyone asked any questions, they were to be directed to Steele. Hansmeier cut off Cooper's testimony on that point, and kept questioning him about other members of his community who might have made him aware of his involvement at an earlier date. Cooper testified that his father-in-law (an ex law-enforcement officer) had told him he needed to find out -why- Steele was telling him to forward any questions.

After this, Hansmeier's questions shifted direction repeatedly. He raised several points apparently intended to discredit Cooper: about being paid for testimony (Cooper denied he is), having expenses covered for trip to LA hearing (Cooper affirmed flight and one night hotel were covered by EFF), lost jobs (Cooper denied), mental health diagnoses and medications (also denied), and whether Cooper had ever signed anything on behalf of Steele (some unclear discussion about DMV registrations.)

There was a confusing line of questioning about why Cooper thinks he's being held out as CEO of AF Holdings - Cooper tried to look something up on his phone (and was directed by the judge to stop). Cooper basically insisted that he wasn't the CEO of AF Holdings, and the judge eventually said that whatever was on the documents in evidence would have to be good enough. Hansmeier worked hard to get Cooper to testify "who told you that your name was being held out as CEO of AF Holdings" but Cooper just didn't remember, and focused on his concerns about his signature being misused.

Another line of questioning focused on how Cooper had retained Godfread, and a text message he had received, which was his first alert as to his name being used in association with AF Holdings. Cooper testified that the text had come from a Kim Eckenrode, who is John Steele's mother-in-law. Cooper also testified that he had been referred to Godfread via an attorney whose number Eckenrode had texted to him.

Cooper denied any specific memory of March 18, 2011 (which I believe is the date Steele testified he introduced Cooper to Lutz by phone.) Finally, Hansmeier asked Cooper why he believed Steele owned Prenda Law; Cooper said Steele told him that, but that he had never seen any documents to that effect.

The judge then questioned Cooper, establishing that he had no familiarity with AF Holdings prior to the text from Eckenrode, that Cooper had never worked for AF Holdings or AF Films (Steele had previously testified that he thought any mentions of AF Films were typos), that he'd never signed any documents on behalf of AF Holdings or Films, that the signatures on the copyright assingments in question are not his and that he does not know who signed them, that he did not authorize anyone to sign his name, and that he did not know these documents were being submitted to a court "with what purports to be your signature."

Godfread then questioned his client; Cooper denied Steele approaching him in 2010 about getting involved in the porn industry. He also stated that he did not know about VPR, Inc before last year, nor had he agreed to be an officer or have any other position with that group, nor to authorize use of his signature for that venture. Cooper stated that he had never met Lutz, nor talked to Lutz on the phone, nor ever indirectly told someone to talk to Lutz on his behalf. Cooper said that he did not authorize use of his signature on any documents related to AF Holdings or AF Films.

Godfread introduced a copy of the text from Eckenrode, including an attached image of Cooper's purported signature on a document. There was some discussion about the admissibility of this copy of the text, including questioning from the judge about how Godfread had gotten the text to the page (emailed to himself). It was entered in the record as Exhibit 3, "with all caveats about what it purports to be". Godfread questioned Cooper basically as to whether the printout of the text was what Cooper had received from Eckenrode. The judge asked briefly if Cooper had ever received any money from AF Holdings or VPR, or been employed by AF (no to all.)

Hansmeier then questioned Cooper (or tried to) about Hansmeier's own previous conversations with Cooper. Cooper expressed confusion about whether he'd met Paul Hansmeier or his brother Peter, and maintained that whichever brother had visited the cabin, Cooper had not been around much or talked much with him. Hansmeier brought up that he had stayed in Cooper's own cabin, but Cooper said he'd stayed away during that visit because "I didn't want to deal with you". Hansmeier, apparently taken somewhat aback, said "I didn't know that," and allowed that line of questioning to drop.

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Hansmeier tried to call Godfread to the stand, and Godfread objected. The judge conferred with his clerk for a bit, questioned Hansmeier as to his intent in questioning Godfread (to establish whether AF Holdings had any knowledge of Cooper's concerns prior to filing the copyright assignments with courts). Godfread reiterated no knowledge on those points. After a bit more conferring, Judge Noel directed the attorneys to Shelton v. American Motors, 805 F 2d 1323 as on point, and said they'd reconvene on that point after lunch.

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Before lunch, Hansmeier brought Steele back to the stand to address the text message (over Godfread's objections as to Steele's lack of direct knowledge of the conversation.) Steele testified that his mother-in-law is very religious and was very concerned over his involvement with the adult industry, and had been active on Die Troll Die and other sites. He testified that he has no interest in Prenda Law, but that she had gotten over excited about "random guesswork from internet pirates". Hansmeier also questioned Steele as to whether Cooper has any other litigation pending against Steele - he does, but Steele said "it defies logic" that an attorney would forge a signature when he could get anyone in the world to sign a document.

The judge questioned Steele about the text message, eliciting that he doesn't know whether it was sent by his mother-in-law, but that it was consistent with the tone of "anonymous pirates on the internet". He mentioned something about the Secretary of State of Illinois, and Judge Noel followed up to ask about that; Steele testified that the Secretary of State website would show that Prenda was created by Paul Duffy. There was some additional questioning about St Kitts and Nevis, and AF Holdings and Prenda, and that a lot of people incorporate there.

-----------------------------------------

When we reconvened after lunch, Hansmeier, having read the case the judge suggested, recalled his request to have Godfread testify. And then things got -really- interesting.

Judge Noel referred to his order for this hearing including an order for Cooper to appear in person, and for an officer of the plaintiff "capable of testifying as to the authenticity" of the documents to also appear. He reviewed the witnesses who had appeared, and noted that we'd heard nothing from AF Holdings - though he mentioned that he was "not sure what Steele's role" was in all this other than being a former partner of Hansmeier... "So," he said, "Where's AF Holdings?"

Hansmeier said that Lutz was planning to come, and is the sole officer of AF Holdings, and did make it to an earlier conference in this case in person, but that he wasn't present today, and that Mr. Hansmeier hadn't been able to reach him by phone or email. He voluntarily elaborated that Steele and Lutz had been booked on the same flight from Miami, that Steele had gone to Lutz's apartment to meet him (because Steele had Lutz's boarding pass), but found him not home. Steele had then, according to Hansmeier, driven around Miami looking for Lutz, and even encountered some of Lutz's friends who said Lutz had told them the night before that he had to make an early night of it because he was traveling to this court in the morning. Hansmeier offered the boarding pass as proof that Lutz had intended to come. (Steele was not present in the courtroom after lunch.)

Godfread suggested that Lutz has repeatedly failed to appear at evidentiary hearings related to AF Holdings cases. Hansmeier responded by stating that Lutz hadn't been able to attend one hearing because he'd been detained by "federal agents" in an airport (the court requested clarification on this point, but all Hansmeier had was that; he stated that Lutz had asked to file further details of that detention, in that case, under seal because the detention was embarrassing.) Hansmeier finally stated that Lutz -has- appeared, before Judge Snow in Arizona, on closely related points.

Judge Noel took this all in, gave parties until close of business tomorrow to file all declarations, and said he'd issue an order "in due course." The court recessed just about ten minutes after convening for the afternoon.


(Edited to correct "Ekkenrud" to "Eckenrode", 10/1/13)

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Personal Photo Sharing - Things to Think About

We just had a "managing your personal photos" drop-in session here at the Libraries, and I was tasked to help people think about legal issues. Thought I'd turn my handout into a blog post!

If you're in it, you might not own it. (Except for selfies.)

Copyright ownership -usually- belongs to the photographer. So pictures -of- you often legally belong to someone else. Of course, when you take selfie, you -are- the photographer, so the ownership is actually easier.

As a colleague asked at the workshop, can you download and save all the pictures -other people- post of you on Facebook? You certainly don't own all of them, but most of your friends probably won't care. The big problems come when, unexpectedly, someone -does- care.

I wrote a little more about this "ownership" conundrum with pictures of yourself & family members a while back.

Even if you don't own it, you might still be able to use it.

You can use other people's stuff without permission -sometimes-. It's more likely to be okay to do that if you are building on their stuff to make new things, or to educate other people - and always better if not for profit. You'll want to Learn more about fair use to make educated and responsible decisions about this.

Not giving credit: sometimes a legal or academic integrity issue. ALWAYS DOUCHETASTIC

Providing credit or attribution is often not a legal requirement. But not providing credit, especially when it is -easy to find the original- is just a nasty move. If you like it enough to copy it, doesn't the person who created it deserve a little nod? Also, for school assignments and scholarship, not providing credit can result in disciplinary proceedings that are separate from legal courts - passing off someone else's stuff as your own is a serious academic offense.

There's tons of stuff you can 100% legally use for free

If you -need- to use a particular work to make a point, or to communicate an important concept, it may be legal under fair use. But if you want to remove uncertainty, look for stuff you are already actively allowed to use! The public domain includes works that we all own, and Creative Commons works are already approved for certain types of re-use.

Here's a whole lot of ways to find Free and Legal Stuff You Can USE.
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I'm Nancy Sims, the Copyright Program Librarian at the University of Minnesota Libraries.

Though I am a lawyer as well as a librarian, no content on this blog constitutes legal advice; if you need direct advice on your legal rights or responsibilities, please consult your own attorney. This blog represents only my own opinions and not those of my employer.

I'm @CopyrightLibn on Twitter.

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Recent Comments

  • jasonroy: Thank you so much for your thoughtful analysis and summary. read more
  • nasims: Thanks for the suggestions, these are great. And I wasn't read more
  • pbh6@cornell.edu: Two resources for free images and text: Shared Shelf Commons: read more
  • nasims: Thanks! I like the disclaimer at font play - it's read more
  • elloyd74@gmail.com: Nice round-up! Two additional sources I use: FontPlay has a read more
  • nasims: Hi Mitch, You're kind of conflating a lot of separate read more
  • admin@mitchlabuda.com: "Fair use certainly sometimes allows for making copies of entire read more
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