Waking up

Yawn! Stretch!

It’s amazing how quickly blogs can get away from you. Rip Van Winkle slept for twenty years; this blog has been asleep for just 126 days. And while by comparison this blog’s absence ought to be just a short blip, it feels somehow comparable. A blog that is dark for a third of a year has, in Internet years, been dark for an age.

Moore’s Law has computer processing capacity doubling every two years. I submit that the time between blog posts is similarly logarithmic. As I see it, every blogger gets 10 days for free. After that, for every 10 human days the blog remains silent, the number of Internet days doubles, as shown in the following graph:

Internet Time vs. Human Time

So, in Internet terms, this blog has quiet for half a century. Most people would assume they’ve probably seen the last of you after that much time has passed. I’m sure the folks over at the 12 books in 12 months challenge have long since given up on me and my quest to read Title 17 in a year. Truthfully, so have I, though I still plan on finishing the entire Title someday, and still hope to finish Chapter 1 by labour day.

And as with Mr. Van Winkle’s story, much has happened in the time since my blog shut its eyes. Will anyone even recognize my blog anymore? Will my blog recognize the world? It’s anyone’s guess.

In the meantime, for the benefit of those eight of you who follow me, I shall hope to keep my future posts less than a year apart.

Published on 24 May, 2011 in Uncategorized. 1 Comment

Copyright and Preexisting Material

Copyright rewards originality, but what happens when you use someone else’s material to create a new work? Section 103 of the copyright law addresses questions surrounding the use of preexisting material in new works. If I create a book of songs about copyright, where I didn’t write the songs, do I get to claim copyright over my book, even though I don’t own the rights to any of the songs? If I take a song about copyright and mash it into a brand new work, do I get to claim the copyright to the new song?

The answer to both questions is, for the most part, yes. However, there are two caveats: First, if I used any of the work illegally, then that portion of my new work is not covered by copyright. In the case of a derivative work (my mashup above), if I failed to get permission for the work that I used, then I would not be able to claim copyright in my new work (except if it’s a fair use). If I had made a compilation of songs and one of them was an infringing use, then according to the House Report (94-1476), then I could still sue someone who copied my anthology to the extent that the rest of the anthology was created legitimately.

The second caveat is that my copyright in the anthology or the derivative work would only extend to the portions of the work in which I added original, copyrightable content. This means that my publishing company can print a compilation of songs about copyright, but the only things to which I might own a copyright are any new prefatory or editorial material, the particular order of the works, any new illustrations, or the like. None of the songs are included in my copyright. So if a song is in the public domain, and someone makes a photocopy of that song, scans it, and sells it for profit, I cannot sue for damages.

The song “Happy Birthday To You” is illustrative of this last point. The song is famously under copyright and generates more than a million dollars for Time Warner each year. The music to the song, however, was written in 1893 with different words:

Good morning to all
Good morning to all
Good morning dear children
Good morning to all

These original words passed into the public domain long ago. However, the new words, published later, are still under copyright (but, see Copyright and the World’s Most Popular Song, by Robert Brauneis, for an argument that it may not be after all). “Happy Birthday To You,” under §103, is a derivative work of “Good Morning To All”. Because of this law (and similar language from the 1909 copyright act), the music to the song passed into the public domain with the original lyrics. This means that I can publish the sheet music (without the words), or write a new composition which blatantly uses the melody to the song, for profit, without any permission at all.

“Happy Birthday To You” is one of the most frequently-licensed songs in the film literature. From what I have observed, the major players in the movie industry tend to take a “better safe than sorry” attitude to music licensing. But one day I’d be very interested to see what would result from a movie in which the music alone (with no vocals) is played in the soundtrack during a birthday scene. According to my reading of Sec. 103, this usage should be fair game.

Published on 27 September, 2010 in Copyright and Title 17 in a year. 3 Comments

§102 What’s covered and what’s not (kind of)

It’s truly astounding how quickly one can fall behind on projects like this. At this rate, this will turn into a 5-year project! Since I actually want to finish this in a year, I’d better get moving…

Section 102 is one of those statutes that is very short, but more complicated than it would seem at first blush. This is where the two-fold test for copyright (that the work be original and that it be fixed) lives in the law. Section 102 also sets up a conflict: original works are protected, but the ideas out of which they sprang are not. This is not a simple line to draw, and the metrics for determining where that line is are necessarily vague. As is often the case, the extreme cases are easy: I think it’s safe to say that I would not be in trouble with Bernstein/Robbins/Sondheim if I wrote a story of ill-fated love set in New York; if my story used rival gangs named the Jets and Sharks and involved a rumble where Tony killed Bernardo, then I probably would. But when it comes down to the close cases the “idea-expression dichotomy” has always been difficult for me to wrap my head around.

This statute says works in “any tangible medium of expression” are subject to protection, and lists eight categories of works which are included, though Sec. 101 makes clear (and the House report for §102 makes even clearer) that this list does not necessarily exclude other kinds of works. The House report further indicates that those forms of expression not covered under this title may still be covered under state and common law. In the context of copyright history, this is, as far as I can tell, a first. All previous copyright enactments by Congress had listed an exclusive list of classes of works subject to copyright. The 94th Congress recognized that the classes of covered works had been continually expanding, and changed direction by writing a law which covered any medium of expression whether or not we know about it yet. Given this technicality (but for the definition of “includes”, the list could be read as exclusive) I am puzzled by the need to have an entire chapter to protect original designs, vessel hulls and decks, semiconductor chips and the like. This seems to me to be belong (if anywhere) in the patent laws then in copyright. Something to look forward to in Chapters 9 and 13!

What is most interesting to me is the fact that this seems to be one more place where Congress has legislated by followed the courts’ lead. Though the U.S. Constitution gives the Congress the right to grant copyright monopolies, the courts have been in the drivers seat for fixing much of the particulars. The House Report recognizes that the idea-expression dichotomy, the notion that originality must be present to claim copyright, and even the definition of “pictorial, graphic and sculptural works” have origins in the courts. Resisting the obvious jabs at the originalists in Congress, it is fascinating to me that the courts have been given so much deference when it is clearly (a) within Congress’ power to contradict rulings the court made under the 1909 statutes, and (b) often contradicts the opinions many in the current congress have expressed regarding copyright (i.e., the more restrictive the better).

Published on 21 September, 2010 in Copyright and Title 17 in a year. 0 Comments

17 U.S.C. §101 (part 2)

Studying the definitions in §101 was actually much more illuminating than I even thought it would be. Following are some thoughts on specific definitions. Rather than summaries, I’m only writing about terms where I think there are issues to explore:

***

Children: must be actual offspring or legally adopted. Likewise, widow and widower are defined as being the author’s surviving spouse at the time of death, under the law of the author’s state of residence. I’ll be interested to see whether this has implications for the gay marriage debate.

***

Computer program. A set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. I’m not sure what they’re going for with “indirectly,” but it sounds suspiciously like any algorithm could, under this definition, be a computer program.  It seems to me that this should be patent material if anything. The question of whether computer programs should be patented, copyrighted, or something else (or nothing!) is as old as commercial software, and I’ll be interested to see how the copyright law gets at this. I’ll be looking especially at how the law treats algorithms vis-à-vis their expression within program. Is an algorithm written in Perl a derivative work of one written in C or in plain English?

***

Art reproduction. This isn’t actually a term that is defined in the statute, but it appears in the definitions of derivative work and pictorial, graphic and sculptural works. What is strange to me is that Congress is treating art reproductions as works in and of themselves (thus with their own copyright) rather than merely copies of the parent work. If I got permission from his estate, I could, if I were an extraordinary artist, slavishly copy a Miró work and produce a painting that looks just like the original. But should this new painting, which is after all nothing but a direct copy of the original, really be considered a derivative work, subject to its own copyright (which I own)? Surely not.

The Supreme Court has said that “The sine qua non of copyright is originality” (Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991)) and that copyright protection is only available for works which contain a “creative spark.” It does not protect non-original works, regardless of the time, effort and the “sweat of the brow” put into creating them. Unless I misunderstand the term, “art reproduction,” I fail to see where there is originality involved. Can it really be equated with translations, musical arrangements and motion picture versions, which clearly do have original content? This is something I will have to look into further.

***

Phonorecord is a term I’ve never seen except in the context of copyright. The law takes the set of all material objects which are capable of embodying a work and divides them into two categories: copies and phonorecords. How they draw this distinction is a little unclear to me, though. The definitions of copy and phonorecord state that both are “material objects,” but does it really make sense to take a single object and call it a “phonorecord” if it contains nothing but sound recordings, while calling it a “copy” in every other case? Take, for example, a DVD containing twenty sound files and one audiovisual file. If an object can only be one or the other, we’d be forced to call it a “copy,” but that runs counter to my intuition somehow—I want the sound files to be phonorecords regardless of whether they share space on a disc with an audiovisual file.

Why even bother with making the distinction in the first place? Why not just call any fixation of a work a copy? I suspect that this has to do with the law’s having been written in the days before digital sound, but this will require more research.

***

United States work. This definition applies specifically to §411, which I haven’t gotten to yet, but which deals with copyright registration. What is odd is that they seem to have excluded classes of works which I would have assumed would be counted as U.S. works.  Foreign works are designated as U.S. works if they are published simultaneously in the U.S. AND a country that is either:

• a “treaty party” whose copyright term is at least as long as that in the U.S., or
• is not a “treaty party.”

However, that means that if the work is published simultaneously in the U.S. and in a country who is a “treaty party,” but whose term is not as long as that of the U.S., then it is not a U.S. work, under this definition. I doubt this will have any impact when we get to copyright in foreign works, but I’ll be interested to see. I’ll note here that the copyright term mandated by the Berne Convention is not as long as the one the U.S. has adopted, so this may exclude quite a number of works published abroad.

***

Works of visual art. Is it really necessary to specifically exclude databases and electronic information services from the definition of works of visual art?  Would anyone really have thought to classify, say, ArtStor as a work of visual art?!

***

Work made for hire. They state that the term should be interpreted as though certain sections of the Copyright Corrections Act of 2000 and the IP Communications Omnibus Reform Act of 1999 were never enacted. Wouldn’t it have been better had they written those two laws so that the caveat wasn’t necessary in the first place?  I’ve often said that the people writing laws are forgetting how to craft well-written laws. This is an example.

Published on 29 August, 2010 in Copyright and Title 17 in a year. 4 Comments

Getting started: 17 USC §101 (part 1)

Chapter 1 of the U.S. copyright law is concerned with identifying what, exactly, is covered by copyright, as well as the extent to which that copyright reaches. The first part of the chapter lays out what is covered by copyright, and then the proceeding three quarters of the chapter identifies limitations to those rights, such as fair use, exceptions for libraries and for the blind, the first sale doctrine, etc. But before all of this, the very first section (17 USC §101) concerns itself with defining terms.

Definitions are boring, and are easy to overlook, but there is actually a lot of law here that is easy (for me at least) to forget. For example, looking ahead to §102, I know that the law includes protection for architectural works. But the definition of “architectural work” is here in §101, and specifies that, while the term does include form and “arrangement and composition of spaces and elements in the design,” it specifically does not include the “individual standard features.” A change to this definition would also change the law everywhere that term was used, so changes to §101 would need a great deal of scrutiny in order to avoid unintended consequences. Note to self: it’s important to remember to keep checking these terms!

One thing that’s interesting to me about these definitions is the extent to which they define things in a way that may be contrary to what would be intuitive. For example, when the term “audiovisual” is used in day-to-day parlance, it is frequently interpreted as catch-all for anything “using sight or sound to present information“. But as far as Title 17 is concerned, it specifically refers only to works with a video component that requires a machine or something to display/perform it. The term includes sounds, if any, that go with the images, but the reverse is not true: a sequence of sounds with no accompanying video is not “audiovisual.” Similarly, “work of visual art” applies only to five classes of works (paintings, drawings, prints, sculptures and photographs) when produced in limited numbers, and not, as intuition might demand, to all works that are primarily visual in nature.

Also interesting, from a big-picture point of view, is the extent to which the definitions closely overlap. For example, the law contains separate definitions for “establishment” and “food service or drinking establishment” where the only difference in language is to state that the latter involves food and drink. Is this really necessary?

My next post will have a closer look at some of the terms and definitions I found especially interesting.

Published on 28 August, 2010 in Copyright and Title 17 in a year. 0 Comments

The 12 in 12 Challenge

Following blog memes is not something I really had planned to do on my nascent blog.  It’s just too early—I don’t really know where I want to go with this.  I haven’t written enough that I even have much of an answer to what this whole thing is about.  So far, it’s just been a smattering of ideas here and there.  Mostly there. To get away with a meme, you first need to have focus.

However, my good friend Mark pointed to a most interesting one yesterday which I’ve decided sounds like a Whole Lot of Fun. The 12 books in 12 months challenge!

Here are the rules for the 12 Books, 12 Months Challenge:

  • Pick 12 titles from your To Read Pile. These should be titles you currently own in whatever format you prefer.
  • Acquisition of other formats or translations is permitted. So, if you have a paperback but want to read on your Kindle, you can get a Kindle copy. If you have a library copy but want to buy your own, that’s kosher. Heck, if you own a copy and want to check another out from the library, I’m not gonna stop you.
  • Post your list in your public space of choice by September 1, 2010. If you prefer not to post, you can just leave a comment with your list.
  • Read all 12 titles between now and September 5, 2011. Might as well tack on an extra long weekend at the end for cramming.
  • When you finish a title on your list, post about it in your public space of choice. If you prefer not to post, you can just leave a comment with your review.
  • Once a month, I’ll post a round-up of the reviews posted from that month so that we all know what everyone else has read. [ed. These rules are posted verbatim from the meme's originator, and she, or Mark, or anyone else is welcome to include mine as they wish! I do not plan to post a roundup, though you never know what will happen...]

My list:

  1. United States Code, Title 17

“Wait,” you say, “that’s only one thing! Are you incapable of reading rules??”

Of course I can’t just do things, I always have to find some way to make things more complicated than they need to be. One thing that I do know that I want to write about is my crazy obsession with copyright, but very often I don’t know what book I want to read next until I’ve finished the one I’m on. However, though I’ve read much of the law that is relevant to my work and interests, I’m continuously surprised to find more that I haven’t even heard of. So my plan is to read the entirety of Title 17, studying each section in its turn, blogging my thoughts along the way. There are, by my count, 140 sections in the Title, and I will read all of them, including each section’s legislative history. My source will be the official text located at uscode.house.gov, though I reserve the right to use my hand-bound paper copy for sections I know have not changed. Links will reference the version located at Cornell University’s Legal Information Institute, because their site is much more fun to read than the House’s version.

And how does all this relate to the 12×12 challenge? Well, there are 12 chapters to Title 17. Oh wait, no, there are 13. Like Mark, I’m going to cheat and go for a baker’s dozen!

One of the most common responses, when I tell people about my copyright obsession, is, “you know, I hear there’s a pill you can take for that now!”. They are right. And I’m going to take the red pill, stay in Wonderland, and see just how deep the rabbit-hole goes.

Published on 25 August, 2010 in Copyright and Title 17 in a year. 2 Comments

Librarians and titles

I’m a librarian.  My job title says so, and I have an accredited degree which supports the claim.  But beyond these qualifications, which assure me that my opening statement is, in fact, the truth, I have often puzzled over the political nature of the term, and what it means to call one’s self a librarian.

One running theme in this musing is the question of who gets to be called a librarian in the first place.  It seems logical to presume that anyone who works in a library—at least one that works there full time—is, by definition, a librarian.  So it may be surprising, to those that do not work in libraries, that according to the prevailing view in Library Land (a view supported by the American Library Association), a person who has spent a lifetime working in libraries, regardless of their position, might not be considered either a “librarian” or even, in many circles, a “professional.”  In order to be called a “librarian” you have to enroll in Library School, and get an accredited Library Science degree.  The ALA-sponsored term for the folks that haven’t is “paraprofessional.”

I understand why this is the case.  The ALA and the library world has, for years, struggled to assert the professional nature of librarianship as well as the need to continue to press for the highest standards of librarians.  This has been incredibly beneficial to libraries, librarians, and the public.  The world is better off with competent librarians running libraries.  And despite the common perception to the contrary, librarianship is much more complicated than learning the Dewey Decimal System.  Information science is a highly complex field of learning whose research delves deeply into many disciplines including discrete maths (especially formal logic), taxonomy, ontology, computer science, business, ethics, history, and law.  And much of this is stuff you do not necessarily learn on the job.

Yet, I can’t help but feel a huge injustice in this two-tiered system, especially in academic institutions.  I know that this dichotomy occurs in any workplace environment: the higher-ups get the money and the prestige, while the people that work for them run the show.  Yet, I know many cases of people who have spent their entire adult lives working in libraries without ever having received a library degree.  In some cases these folks may be the only reference librarian many patrons ever see (because they know everything there is to know about the library); in other cases they may have catalogued half the library’s holdings (and are therefore to thank whenever you can find the item you’re seeking).  Surely these folks have earned enough professional respect that the profession can recognize them as librarians?

For a profession that has so many problems coming from outside, promoting a class system within does not strike me as productive or helpful.

Published on 20 August, 2010 in Uncategorized. 4 Comments

Taming the Faceache

One thing about moving frequently is that you always have a context for your memories which helps put them in their proper time period. Having moved at least every four years for my entire life, I can usually place some event in my life within a few years simply by recalling where I was living at the time. “That movie came out in 2002-3 because we were in Tallahassee at the time, but I hadn’t finished my thesis yet.” Etc. Lately, I’ve been noticing that moving may also, to some extent, freeze the methods of communication with a particular group of people from a particular location.

For years, when I moved away I would continue to communicate with friends via letters and phone calls. This was my life line to my old life. When I was introduced to email in college, the people I saw regularly—the people I interacted with during that era—were people who I ended up keeping in touch with via email; those who at the time were no-longer nearby, for the most part, remained people with which I was more likely to call or write letters. Of course, I stopped writing letters, too (I was never very good about writing), and so I lost touch with many of them.

From about 1998, Instant Messaging became The Thing. For people I met after that point, my primary communication came from this new tool. Some of my email friends joined me on AIM too, but my conversations with most of those folks stuck with email. I rarely exchanged email with my AIM friends. Most of my letter-writing friends had, by this point, given up on me.

I finally joined Facebook last July, after years of avoiding it. After I’d finished school and moved away, I finally decided to join.  Because this was the communication tool du jour, I was afraid it was the only way I’d be able to stay in touch with the folks I’d met during graduate school. I waited until after I finished school, knowing full well that it would occupy more of my time than was healthy. The lure of Facebook, after all, was more than just as a tool to keep up with new friends, it was a way to connect with people I hadn’t seen in years, even decades. The deciding factor, the thing that finally overcame my resistance to joining, was the knowledge that people with whom I’d long-since lost touch, but wished I hadn’t, were members. It has been joyous to find these folks again.

Just as important are the few people who I met on Facebook before having even met in person. This is the quintessential Facebook friendship—meet online, then meet in person, and then become friends. Furthermore, our interactions on Facebook help speed up the friendship-forging process: each gets a candid window into the other’s mind, and immediately we have much to talk about when we eventually meet in person.

But you can get too much of a good thing and, as predicted, I have frequently found myself addicted to the site, to the detriment of much of the rest of my life. So much so, that a couple of months ago I took a forced vacation from Facebook. During this time, as a result of Facebook’s increasingly Orwellian attitude toward its members’ information, I began to contemplate exiting altogether. But can you really move backward, like some sort of digital salmon? As communication technology moves full steam ahead, can people who meet under new regimes stay in touch using the old tools? Can people who meet in the Facebook era, revert to communicating via email or AIM?

I shall certainly try.  During my short-lived but successful Facebook exile, I moved my Facebook contact information into a non-proprietary format.  In the coming year I’ll be attempting to send more email, write more blog posts, and possibly even write letters.  I hope to cement these new and re-forged friendships outside of Facebook in preparation for the eventuality that I will have had enough of Facebook’s policies, or its leeching my time, and bolt altogether.

To lose all these connections would be a dreadful loss. But information is valuable, and in social networking, we vote with our data. Facebook may very well be one more example of power corrupting. How long should one continue to dance with the Devil?

Published on 1 August, 2010 in Uncategorized. 2 Comments

Why copyright?

Excerpt of tunebook from the University of Colorado music libraryThe other day, a researcher working on his master’s thesis was giddily describing his plans for a future project after he defends his thesis.  He’s studying college songs, and would like to do in-depth, comparative analysis of songs over the period 1885-1922.  The first date was chosen, logically enough, because it’s the composition date of “For Boston” which, according to the Wikipedia, was the first college fight song in the United States.  When I asked why he chose 1922, he responded that it was the last year during which everything he works with will be out of copyright.

A number of people have asked me why I’m so interested in copyright.  There are many dorky answers to this question, which I will get to in due time.  But this story is illustrative of one that is not so dorky: that the system is broken, and as a result it is having a chilling effect on the culture, scholarship, and innovation it was designed to advance.

I am a strong believer in the notion of copyright as it was conceived by the authors of the Constitution.  Granting authors limited monopolies over their works makes for sound policy: limited monopolies, when administered properly, lead to more advances in the fields they protect.  They provide an incentive for risk taking, for investing time and energy into honing a craft, for using that skill to produce a new work.  In exchange, the public gets more new works, of better quality, than it would have otherwise, and those works, after the monopoly runs out, return to the public for use by a new set of would-be monopolists.

But policy-makers have lost site of that initial bargain, and now copyright is actually hindering advancement of the sciences and useful arts, as my researcher’s story demonstrates.  The process of clearing rights to use another’s work (even if it is more than half a century old) is so onerous that my researcher has chosen a time period for his dissertation which may not be ideal from an historical, or musicological perspective, but which does free him from worry about the law. There are any number of reasons that he might have made his decision: misunderstanding of the law, risk-averse university regulations or publishers requirements, a fear of personal liability, or even a desire to do The Right Thing.

To me, this is prima facie evidence that the law is hampering scholarship. The public does not benefit when the law is causing scholars to limit their research in order to avoid the murkiness of the law.  Imagine doing doctoral work on the United States’ occupation of Haiti (1915-34), but limiting your dissertation’s scope to 1915-22 because of the difficulty in securing rights to soldiers’ letters and newspaper articles from 1923-34.  You’ve only told half the story because the law has intervened.

Sure, the researcher could choose more logical dates if he wanted to.  Some may even argue that he’s just being lazy, and that any self-respecting researcher would go ahead and jump through all the hoops.  My argument is that he shouldn’t have to. Copyright law should never play a role in limiting what the scholar studies or writes.  When it does, with few exceptions, it is broken.

Published on 18 July, 2010 in Copyright. 5 Comments

Reboot

As was famously noted by president John F. Kennedy, when Irish author Frank O’Connor was young he would roam throughout the countryside, sometimes coming to a wall that seemed too tall to get past. Rather than turn away, he would throw his hat over the wall. Since he presumably loved his hat, he would then be forced to cross the wall, whether he was comfortable with it or not.

During the height of the blog rush, before it was chilled by the advent of Facebook (et al.), my sister used to try very hard to convince me to start a blog. Since then, others have similarly tried to convince me I should write down my thoughts. And while I was flattered at the notion that my thoughts might be worth reading, I always demurred. I had many reasons : I don’t have anything to say. I’m worried about privacy. I want to wait until I can write my own blogging program (I’m not kidding) and I don’t have any server space yet. And while all these things are true, they are all a red herring for the real problem: that having my writing judged by my peers terrifies me. Unfortunately for that fear, I am in a profession where to keep my job I have to be read by my peers, and the more the better. I have to publish, give papers at conferences, become influential in my field. If I don’t, I don’t get to keep my job. I need to write, whether I like it or not. My writing needs to be peer-reviewed, whether I like it or not. And the only way to get comfortable with something, and to improve at something, is to practice. So I’ve decided to let the open web serve as my proving ground.

I’ve tried writing blogs before, normally because for some reason I thought, as a child of the computer, that I ought to. When I was in Library School I even got to the point where I started posting, but I never had any focus (and, more importantly, I never told anyone). It was a blog for the sake of a blog. The genesis of this attempt is in thoughts that I feel need writing, which I wanted to hold on to, but which weren’t article-worthy (at least not yet). I’m hoping this will be the difference.

So I have come to a wall. With the reboot of this blog, I am throwing my cap over and will take whatever lumps come my way as I go to reclaim it. I expect this blog to be a mix of reflections on current events, my work, and my research interests (especially copyright and information policy), with a healthy smattering of personal miscellany. If this interests you, read on!

Published on 12 July, 2010 in Uncategorized. 6 Comments