Clearing up a misconception about Open Source Software

Recycling emails into blog posts, yay!

Although I’m not much of a programmer, I’m a big fan of Open Source Software. Freeing source code for tinkering by random interested parties has produced a ton of awesome things I use all the time (Linux! Gimp! Libre Office! Inkscape! Audacity! Freakin’ VLC, peoples!)

But there’s a weird misconception about open source software (OSS) licenses that I’ve run into a number of times – apparently, quite a few people think that OSS licenses prohibit later users from commercially exploiting OSS code.

If my experience is anything to go by, the programmers, computer scientists, OSS advocates and other licensing junkies among you are thinking, “Wow, that’s a ridiculous misunderstanding!” And many of the rest of you are thinking, “Well.. they do, don’t they? How could anyone commercially exploit something that’s given away for free?”

It seems to be a pretty fundamental cultural mis-communication. So if you’re in the former group, consider this post just a heads-up, info-sharing, “hey, you might want to check if the people with whom you’re communicating are clear on this point!” If you’re in the latter group, here’s a quick clarification:

There are a variety of free/libre/open source software (FLOSS) licenses. Pretty much all of the OSS licenses allow re-use of open-licensed code by third parties, but most also require that third party users must themselves make their code freely available. Apparently, many folks understand the requirement to make code available as precluding commercial use by third parties. But this is not true!

There are quite a few ways one can commercially exploit OSS code while also fully complying with the “open” requirements. One good example would be the Red Hat company. While the code of most Red
Hat products is itself openly accessible and free for re-use, people give money to Red Hat for the convenience of getting a well-curated set of open source software, for the reliability ensured by the brand name, for product support, for enterprise-level solutions, and for many other reasons.

One factor that may contribute to this confusion is that Creative Commons licenses, the most common open content licenses (i.e., for freely sharing text, images, audio, video – rather than software code), have an option for licensors to indicate that they are only licensing “noncommercial” use. With the correct combination of terms, a Creative Commons license may enable free re-use for anyone except
commercial users. Although there are some major differences between open source software licenses, the major OSS licenses enable free re-use for anyone including commercial users.

I’m not deeply versed in the arcana of FLOSS (or even all of the arcana of free/libre vs OSS), so if I got something wrong, please correct me in comments.

FWIW, my favorite public license remains the WTFPL. (Depending on your work environment, possibly NSFW.)

Friday Fun: Facts, Expression, and Illustrations

There’s a blank calendar grid on the wall outside my office. It’s not there for scheduling.

calendar-haha.jpg
If you can’t read it, the text printed at the very bottom of the calendar grid says “Copyright © 1997 Houghton Mifflin Company. All Rights Reserved.” The annotations in red marker (“HA HA HA HA HA HA !!!”) are all me.

Why do I find that copyright statement so hilarious? (Other than just because I’m an enormous copyright weenie?) It’s because it is absolutely, 100%, no “it depends” situation here, a completely false claim of ownership. There is NOTHING on that calendar grid that Houghton Mifflin could possibly own. However, it is also possible that with the addition of my annotations, my version of the calendar is copyrightable, to me.

Howzawhatsis?

In the United States, facts are not copyrightable. This comes from a piece of the copyright statute, 17 U.S.C. § 102(b), that highlights that the things that explicitly are not covered by copyright.

“In no case does copyright protection for an
original work of authorship extend to any idea, procedure, process,
system, method of operation, concept, principle, or discovery,
regardless of the form in which it is described, explained, illustrated,
or embodied in such work.”

Facts and data are usually understood to fit into the category of “ideas” here – and it’s worth noting that the reason these things are considered un-ownable has a lot to do with both copyright’s Constitutional goals of promoting progress and innovation, and with the First Amendment’s guarantee against governmental limitations on speech. (If your government-granted monopoly rights in an idea prevented me from discussing it, that could be a big First Amendment problem.)

But when you add new original expression to facts or ideas, you do get something ownable. Original expression can come just from the selection and arrangements of the facts you include (sorting names in alphabetical order? Not copyrightable. Making a list of famous graduates of your high school, in order of the distance they lived from the school at the time of their graduation? Maybe copyrightable.) Original expression can also come from things we think of as more traditionally “expressive”, artistic renderings of data or facts.

Illustrations

I sometimes ask workshop participants if the following image is copyrightable:

plain line drawing of an idealized normal curve, with standard deviations

Most of the time, most participants immediately say that it is – even if we have just been talking about the fact that facts and ideas are not copyrightable. Only some of this confusion is driven by people who are unfamiliar with statistics; quite often, a person who frequently makes charts and graphs that look a whole lot like that image will be one of the big holdouts for “of course that’s copyrightable!”

And that’s the thing, really – when you start unpacking the concept that facts and ideas are not copyrightable, and you only get a copyright when you add original expression, you pretty quickly reach a place where you have to acknowledge that many scientific figures and other illustrations may actually not be copyrightable at all. (In fact, a court confirmed this a couple of years ago, in one of the few copyright cases I know of directly dealing with plagiarism of research figures, Ho v. Taflove. I keep meaning to write something about it, but it’s so complex I always lose the thread.)

That can be a kind of uncomfortable realization, but human creativity being the joyous wonder that it is, people keep coming up with really really awesome ways to add fantastic expression to factual information. Here are just a few.

Stuffed normal curve made of fabric, with embroidered standard deviations and cute faceFrom the wonderful Nausicaa Distribution folks on Etsy. They have statistical distribution dinosaurs.

Daria Neidre’s 2010 entry in the annual “Dance Your PhD” competition, “The Use of Autologous Adipose and Bone Marrow Derived Stem Cells in a Point of Care Goat Non-Instrumented Posterolateral Lumbar Spinal Fusion Model.” They also have < ahref=”http://gonzolabs.org/dance/2011-videos/”>previous years’ entries.

The thing that started me off on this whole post, was the work of an 18th-century French medical illustrator, Jacques Gamelin. A colleague who makes collage art from public domain sources introduced me to Gamelin’s work. Although clearly intended to convey factual information about bones and muscles, the bodies and skeletons in Gamelin’s illustrations are also extremely expressive.

four skeletons sit in various poses on large square blocks. One plays a violin, another, a cello.

See more of Gamelin’s expressive factual illustrations at the National Library of Medicine.

Even though I’m sure there’s copyrightable expression in Gamelin’s works, there’s still no copyright in ’em. Published in 1779, his works are in the public domain. Hooray!

Got any great examples of expressive factual illustrations? Add ’em in the comments!

Music, musicians, music fans, ownership, legitimacy…

(re-posted from previous links-roundup post)
 
There
is so much to say about all this, but it’s kind of all been said
already. Here’s a few of the things I’ve been reading in preparation for talking about it on MPR this morning. MPR’s other station, The Current, has some good, concrete coverage of some of the latest flap with local musicians Jeremy Messersmith (who will also be on the show on July 9) and Christian Erickson

Suffice it to say, it all started with the NPR intern post
by Emily White (except it didn’t, this stuff has been debated for a lot
longer than some folks seem to think), and David Lowery’s condescending response. The Other Emily White, a music producer, wrote a great defense of Intern Emily White. Dave Allen, himself also a musician, fanned flames while also making some sharp points.

Since lots of the discussion has centered around who gets payment, and how, for music purchases, I was very interested to note the founding last week of Any and All Records,
which promises to sign any artist who wants to be signed, and in return
promises “to do nothing for you. That said, we also won’t cost you
anything,
we won’t take anything from you or own anything of yours either.” They
seem to have signed well over 200 artists already. As a point of comparison, I also found Steve Albini’s early-90s discussion of the relationships between artists and traditional label structures pretty informative.

My
reading list on this topic has grown exponentially – especially since
some really sharp insights do surface in the general morass of comments
on a lot of these posts.

Erin McKeown – http://theclatterofkeys.tumblr.com/post/25432949131/white-vs-lowery-or-i-dont-have-time-for-this

Justin Spohn – http://thisisviolence.net/post/26039099299/why-must-i-be-the-thief

Steve Albini – http://www.electricalaudio.com/phpBB3/viewtopic.php?f=4&t=59318&start=20#p1482891

Jeff Price from Tunecore – http://blog.tunecore.com/2012/06/the-intern-the-artist-the-internet.html

Jonathon Coulton – http://www.jonathancoulton.com/2012/06/20/emily-and-david/

Ethan Kaplan, LiveNation – http://www.blackrimglasses.com/2012/06/22/are-we-really-still-discussing-this-or-my-response-to-david-lowery/

Mike Masnick/Techdirt
http://www.techdirt.com/articles/20120625/01011219455/some-facts-insights-into-whole-discussion-ethics-music-business-models.shtml
http://www.techdirt.com/articles/20120524/02293219056/amanda-palmer-steve-albini-piracy-it-only-helps-musicians.shtml
http://www.techdirt.com/articles/20120620/03552119398/business-model-failure-is-not-moral-issue.shtml

Zac Shaw – http://www.mediapocalypse.com/in-defense-of-free-music-a-generational-ethical-high-road-over-the-industrys-corruption-and-exploitation/

NYTimes’ Ben Sisario – http://mediadecoder.blogs.nytimes.com/2012/06/19/npr-intern-gets-an-earful-after-blogging-about-11000-songs-almost-none-paid-for/?smid=fb-share

Wesley Verhoeve – http://www.wesleyverhoeve.com/quixotism/

Revolutionaries

raisedfist-fromOCA-coloredin.pngSince we’re almost at the holiday that recognizes the U.S. Declaration of Independence, today seems an appropriate time to voice some rebellious thoughts.

I often spend time in talks and conversations trying to shift libraryfolk away from a compliance/risk-management mindset, and towards a risk-tolerant/risk-embracing mindset. For example, I often try to talk people into the idea that libraries should consider engaging in projects where there are legal arguments in our favor – even when some other folks might disagree about the legal arguments.

But really: talking people into considering engaging? The ALA Code of Ethics says that we “advocate balance between the interests of information users and rights holders” and that we “do not advance private interests at the expense of library users, colleagues, or our employing institutions”. Avoiding all possibility of copyright risk in all decision-making is advancing private interests at the expense of library users.

So here’s something you probably won’t hear me saying a lot in large-group presentations (mostly because it would take too long to address related questions.) Rare books, films, videotapes, and audio recordings molder on our shelves as we debate how to apply unclear legal provisions: sometimes libraries should be putting our public interest goals (particularly preservation) ahead of legal considerations. Even if it means contravening the part of the ALA Code of Ethics that says we “respect intellectual property” (why is that in there, anyway?)

To be very explicit: sometimes libraries should be preserving things (or otherwise making copies to serve our patrons and the public) even when we know we have no explicit legal right to do so. Some of the most important things libraries have ever done have been in direct contradiction of laws, censorship, government, religion and other powerful forces. Why give copyright greater respect?

I know many colleagues will disagree with me. Others will want to know when I think those “sometimes” should be. Generally, I’m thinking about preservation of rare and/or rapidly decaying materials, providing access to users with disabilities, and serving the information needs of user populations who have particularly limited information access and/or who are particularly vulnerable in other ways. I don’t have guidelines or best practices in mind – I’m not sure policies could really be written about this sort of thing
(not least because just having a policy about this could expose an
institution to legal risk). These are fundamental (and perhaps individual?) questions of conscience and professional ethics. Sometimes the most ethical course of action and the most legal one are not the same thing.

I do need and want to do a lot more thinking on this issue. I feel it particularly important to emphasize on this post that my opinions do not represent those of my employer, nor the practices of my place of employment.

ETA: I should note that 1) most library preservation copying is already explicitly legal (see sections b and c – the real challenge is making the preservation copies usable) and 2) a LOT of other library copying is probably fair use.
I should also note that while I think it is a bad idea for libraries to agree to contracts that prohibit the kinds of copying we might need to do for our patrons (whether copyright law explicitly permits that copying, or not), I also think that agreeing to such a contract with the intent of later violating it or “working around” it, is itself deeply unethical (and possibly illegal).

I have thoughts…

…they just don’t often end up here. I always want to write comprehensively – but many of the things I think about are way too big to write comprehensively about in a blog format. So, in hopes of more of my thoughts making it here, even in incomplete form, some annotated links.

Things That I Have Been Thinking About

  • Origami folding patterns
    Painter Sarah Morris has been making paintings based on the crease diagrams developed by origami artists, who have sued her for copyright infringement. The news stories about this case focus on whether the paintings are transformative, whether they are fair use, and issues of credit and attribution. But the first question that comes to my mind is, how would origami crease patterns be copyrightable in the first place?

    LangvMorrisfigure.jpgAs far as I understand it, crease patterns are algorithmically-generated instructions – incomplete ones, at that – for how to produce an origami figure. Instructions, recipes, diagrams that represent pure facts: not copyrightable. Certainly there’s a lot of work involved in developing the crease patterns, but that’s not copyrightable either. Origami figures, once folded by an artist, may well be copyrightable in themselves – they’re certainly expressive and creative. Newly developed crease patterns may even be patentable! But I’m pretty sure Lang’s understanding of origami copyright is incorrect.

  • Annoying permission requests
    A student in a class _about copyright_ requested permission to quote from our Copyright Information site in a class presentation. Our Creative-Commons-licensed site. In a class presentation. Either that student is not going to pass that class, or that instructor is really incompetent.
    Asking permission when fair use applies is a waste of your time and theirs, and shrinks fair use for all of us. Asking permission where Creative Commons licenses apply, or from someone who wants you to share their stuff is really quite disrespectful.
  • National blanket licensing
    Ariel Katz recently discussed the parallels between national blanket licensing and taxation without representation. Since there are frequently proposals to levy blanket fees on file storage media in the U.S., and blanket licenses are imposed on many venues here via extralegal (but close to unavoidable) means, I appreciated his insights on the fundamentally anti-democratic nature of the Canadian system. Choice quote:

    “Canada has established a “dancing tax”, collected by, and for the
    benefit of, private entities, because they asked, nobody could afford to
    vigorously object, and the Board approved.”

[Edited July 9 to move music stuff to new post.]

What every researcher should know about copyright

This is a cross-post with the Research @ the U of M blog – so some of the info here is specific to the University of Minnesota.

This could have been a “Frequently Asked Questions” list – except that the questions I am most frequently asked by researchers usually have to do with what folks can use. There are some questions about copyright that most researchers don’t know to ask until it’s too late – which is really too bad, because these questions are often about what the researchers own. Hence, the following three(ish) things researchers really need to know:

1. You own copyrights, right at this very moment.

Everything anyone writes, sketches, sculpts, films, records… it’s pretty much all copyrighted these days, and it’s all automatic. The moment a creative work is first “fixed in a tangible medium of expression” (i.e., written on paper, sketched on a chalkboard, saved to a computer drive, etc.) is the moment when copyright starts. There’s nothing else you have to do for a copyright to exist – registration is totally optional, though it can be a really good idea, especially for commercially valuable works.

More on Copyright Ownership | Information for Owners | Register Your Copyright

2. The University of Minnesota has a Copyright Policy

The default rule of the law is that employers own the copyright in
works produced by employees in the course of their work duties.
Academics have long worked under an informal tradition that faculty own
their own copyrights, but that tradition was never well-defined
legally.

Thankfully, we’re not stuck with the murky combination of that
default
rule and “tradition”, because the University of Minnesota has a policy
on copyright ownership, which automatically and formally grants back the
ownership of scholarship (including teaching materials) to faculty,
researchers, post-doctoral fellows, researchers and other employees who
hold “faculty-like” appointments.

(The UMN copyright policy defines  “faculty-like” employees as those who “teach or conduct research at the University with a level of responsibility and self-direction similar to that exercised and enjoyed by faculty in a similar activity”. )

Of course lots of individuals who are not faculty produce copyrightable materials at the Unviersity. The copyright in works produced by employees who are not “faculty-like” is owned by the University, so when working on interdisciplinary or multimedia projects, it may be a very good idea to explore those issues up front.

Also worth keeping in mind: students are copyright owners, too, and they do own the copyright in their student works – though public displays and other uses can be required as a condition of participation in a course or activity.

Regents’ Policy | Administrative Policy | Policy Background Info

3. You can negotiate about your copyrights when publishing

A lot of scholars and researchers overgeneralize about publishing practices, believing their experiences with specific journals or societies to be universal. The fact is that practices around author fees, author rights, and publisher rights vary incredibly widely across, between, and within disciplines – and this has been true for many years.

Due to both the growth of open access publishing and increasing
experimentation with new forms of scholarly communication, awareness of
these issues is growing rapidly among academic authors. But with that
new awareness comes new and difficult questions about how to address
rights ownership when publishing. 

Many authors negotiate about their copyrights, or seek out publishers who they already know to have favorable policies. One common point of negotiation for authors is to share rights with publishers (rather than transferring rights to publishers) – often by means of a nonexclusive (rather than exclusive) license agreement.

Other authors may be willing to transfer copyrights to publishers if they can retain certain rights themselves – such as the right to post it online, the right to use it in teaching (and to allow colleagues to do so as well), and the right to quote or re-use it in future works.

How UMN Authors Approach These Issues | Explore Publishers’ Policies

4. The University Libraries can help you with these and related issues!

In addition to deep subject knowledge in many scholarly disciplines, University Libraries staff have expertise in a wide range of issues related to copyright, publishing, collaboration, research data management, new and emerging technologies throughout the research process, and new avenues of scholarly communication and exploration.

The Libraries provide UMN research and scholarship a permanent, high-visibility online home in the University Digital Conservancy archive. Even when an author has not specifically retained the necessary rights, many publishers have a policy allowing authors to share their works in institutional repositories or archives such as this.

We are also happy to consult on specific projects or issues, or just to help you get started in your own explorations. Please don’t hesitate to contact us – by phone, email, chat, or in person!

Free and Legal Stuff You Can USE!

Adapted from a presentation today at “Enhancing Quality Staff 2012“, which a really fun and engaging symposium, and always really well-run (by UMN Libraries colleagues.)

Sometimes it gets a little tiring to work through all the details of copyright exemptions and exceptions. Especially when we’re building on other people’s stuff to make new things, we can make choices that make everything WAY EASIER – just search for inspiration amongst stuff you already know you can use!

(Note: this is all highly U.S-centric. Sorry, international folks, I don’t know your public domain laws. Creative Commons should port, though!)

You Can Use Stuff When…

Copyright doesn’t apply
This is also known as the public domain – the body of works available for all of us to use. We all own them! Sometimes it’s hard to figure out if something is in the public domain, but there are two times when it’s fairly easy:

If it was published, in the United States, prior to 1923
If it was produced by the U.S. federal government.

There is a ton of other stuff in the public domain, including things from well after 1923, but that’s the easy stuff.

ETA, 6/27/12: please note that neither one of these situations is always 100% easy! For the 1923 cut off rule, “publication” can be an issue (e.g., letters in an attic from 1912 – probably never published, possibly not public domain.) And many federal government resources are produced by contractors, who may own the rights. You may need to learn quite a bit more, to make determinations about public domain status for yourself.

If someone other than you is making the assessment of public domain status, you will want to consider the reliability and authoritativeness of that assessment.

Permission has been granted

Here’s one way to know you have permission:

“Can I use this?” “Yes.”

This often works well when you can make contact with the creator directly, but note, this only works if you ask the person who owns the copyright – which is often not the creator!

Open licenses are another way to know you have permission – it’s a form of licensing where the rightsholder gives the whole world a license to use the work (though sometimes with some restrictions.) Creative Commons licenses are the most common form of open content licenses; free and open-source software licenses are another example.

Places to Find Stuff You Can Use

Creative Commons Search – http://search.creativecommons.org/

Search through many different sites for Creative Commons licensed content in a variety of media.

Internet Archive – http://www.archive.org/

Slightly overwhelming listing of multimedia content. Creative Commons (& other open licenses) and public domain.

“The Commons” on Flickr – http://www.flickr.com/commons

Photos from archives & museums with “no known copyright restrictions” (i.e., probably public domain)


Open Clipart – http://www.openclipart.org
Vector/clipart images. Widely varying quality. All public domain*.

Flickr Creative Commons content – http://www.flickr.com/search/advanced

Use the advanced search interface on Flickr to find only Creative Commons licensed photographs.

Musopen – http://www.musopen.com/
Collection of sheet music and recordings. All public domain*.

CC Mixter – http://ccmixter.org/

Collection of sound samples and finished musical works. All Creative Commons licensed.

Jamendo – http://www.jamendo.com/en/

Music site. All Creative Commons licensed. In and out of service, lately.

Magnatune – http://www.magnatune.com/

Music site. All Creative Commons licensed, but primarily available to fee-paying members.

Project Gutenberg – http://www.gutenberg.org

Collection of text and scanned-image copies of books. All public domain.

Open Library – http://openlibrary.org

Project of the Internet Archive – somewhat free e-books. Public domain and other.


Librivox – http://librivox.org/

Volunteer-read audiobooks. All public domain*.

Many authors have also released new books under Creative Commons licenses, but they’re not easily searchable from any one location.

Al Jazeera’s Creative Commons footage – http://cc.aljazeera.net/
Some of the better Creative-Commons licensed documentary footage available, though of course with limited topic coverage.
 
Vimeo – http://vimeo.com/creativecommons
Video site; allows creators to apply Creative Commons licenses to their videos. You can browse CC-licensed videos from this page.

Blip – http://blip.tv
Video site; there is CC-licensed content on here, but no easy search interface that I can find at the moment.  

You can also search YouTube including “creative commons” as part of your search words – then check the full info to see if the video is licensed. (Or look at http://www.youtube.com/t/creative_commons for info on how to license, but they don’t quite support the full suite of licenses.)

*For any new work, including present-day recordings of public domain music, copyright automatically exists from the time of creation. Although some creators or performers may want to relinquish all
their rights, it’s actually kind of legally difficult to do that – most
countries, the U.S. included, automatically give some rights that
creators cannot sell or give away. Several of the “public domain” resources on this list include new content, but creators on these projects usually at least intend to cede their rights.

Stuff to Help You Use This Stuff

The following free and open-source software is all stuff I use (or have fairly recently used) on my personal computer (Linux Mint), my work PC, or both.

LibreOffice.org – http://www.libreoffice.org

Completely free and open suite of office software that interoperates pretty well with Microsoft.

VLC Media Player – http://www.videolan.org/vlc/

Audio/video player. Will play any format you throw at it.

GIMP (the Gnu Image Manipulation Program) – http://www.gimp.org/

Photo editor – like Photoshop, but free and legal to install on as many computers as you want! Very full-featured, slightly different interface, but if you give it a couple of days, the adjustment is easy even for a longtime Photoshop user.

Inkscape – http://www.inkscape.org

A vector image editor (like CorelDraw or Illustrator).
Vector art is infinitely scaleable without loss of print quality, so this is a good tool for making posters, flyers, other one-page layouts. Most clipart (including all the .SVG files on openclipart.org) is vector art.

Audacity – http://audacity.sourceforge.net/

Great audio recorder, mixer, and editor.

VirtualDub – http://www.virtualdub.org/

A good stripped-down open source program for basic video editing.

Zotero – http://www.zotero.org

A very full-featured citation management program that is a browser plugin for Firefox, and that integrates with MSOffice and open office suites.

If you’ve got any favorite open content, public domain content, or open source software resources, feel free to add in the comments! Anon commenting is okay, but I’m a slow moderator. 🙂

On plagiarism and the public research university

dark blue sky with small corner of yellow-brick building intruding lower center
Heller Hall BY-NC jadammel/Joe D.
(photo taken at the U of M)

Recently, a blogger copied from a University-produced blog at significant length without credit or a link back to the original site – behavior that understandably produced pretty negative feelings from the staff members whose work was being reproduced without credit. Because the blogger had suggested that the content was in the public domain, these folks contacted me for clarification. We ended up discussing a lot of issues related to fair use and the mission of the public research university, as well as how best to foster appropriate public use of University-produced materials. It’s worth noting at the top here, that the initial situation was resolved with positive feelings all around, including the blogger apologizing for not providing credit.

The following thoughts on plagiarism of public-facing materials produced at a public research institution are adapted from email conversations around the above situation – but might be worth thinking about in other instances of sharing and ‘stealing’.

———————————————————————————————–

First off, copying a whole blog post without credit sounds like plagiarism – which is unethical, and in the academic environment is a
punishable offense. But plagiarism is often not actually a copyright violation.
At times like
this, that can be frustrating, but there are actually good reasons for
the law
to work like that. When engaging with someone who may have
plagiarized in a blog environment, I’d stick to talking about plagiarism
in terms of journalistic (and blogger) ethics, rather than law – most people usually do care about
behaving appropriately on these points, but can be pretty confused about
appropriate ways to provide credit, or about what works are free for
public use.

Depending on the facts of how a work is produced at the University of Minnesota and how the University copyright policies apply, the copyrights may belong to the Regents (i.e., to the University), to individuals, or to a combination. Bloggers (and others) may be confused about the public domain status of University of Minnesota materials, because the United States federal government does not own copyrights – all federal government materials are in the public domain in the U.S. Many states also have laws that make their own state laws public domain. However, the individual states, and especially units of those states acting as regular business entities, can own copyrights. It is quite common for Regents of state universities to hold copyrights in materials produced by their staff.

It’s important to remember that even if the Regents do own the rights, bloggers – and anyone else – do have some rights to re-use the content without permission under the copyright concept of “fair use”. At times, fair use does include even
the use of an entire work – a concept that has recently been upheld in cases of
bloggers reproducing news articles without permission.

Clearly, plagiarism of online content is problematic – but it is actually not true that every user would be violating copyright if they reproduced the whole article, and it is true that individuals do sometimes have the right to use quotations without
permission. Because there really is  room in the law for some re-use by individuals, I’d encourage anyone communicating with a possible plagiarist not to overstate what the law prohibits individuals from doing – although I understand why poor behavior and plagiarism might produce the urge to use some strong words.

It’s also important not to overstate the limits of use rights in copyright because, as a public research institution, the Regents have articulated institutional commitments to
sharing our work with the public – one of the guiding principles of the
Regents’ Copyright Policy is “The University’s mission articulates a
commitment to sharing knowledge through education for a diverse community and
application of that knowledge to benefit the people of the state, the nation,
and the world. In this spirit, the University encourages faculty and students
to exercise their interests in ownership and use of their copyrighted works in
a manner that provides the greatest possible scholarly and public access to
their work.”

Throughout the University, we rely on fair use a lot in our research, teaching and
scholarship. It’s important to remember that that’s a two-way street.

edandellow-byncdnd-alankaar.jpg
‘ed and ‘ellow BY-NC-ND Alan Kaar
(photo taken at the U of M)

This is NOT a small technicality!

One major argument publishers have taken with respect to open access mandates is that they harm the publishers’ intellectual property rights. While “harm” is relative, it is true that an open access mandate forces publishers to handle intellectual property rights differently. Just, not in the ways publishers say it does.

There’s a hearing about the Federal Research Public Access Act today, and although the background documents are pretty well put-together, and relatively balanced, it’s particularly frustrating to read their discussion of publishers’ IP rights (pages 9-10).

The document accurately states that “should a federal agency prospectively require recipients of federal funds to ensure that the publication of their work was made in an open access manner as a condition for receipt of federal funding for the research, a {constitutional challenge over government takings of property} would likely not be successful.” This is absolutely accurate.

It also states that “this effectively forces journals to yield their intellectual property rights in the peer reviewed article to the NIH requirement or not accept an article funded by NIH for publication.” This is not true – and the reason it’s not true is WHY THERE IS NO CONSTITUTIONAL PROBLEM WITH SUCH A REQUIREMENT.

The Fifth Amendment to the Constitution does forbid government takings of property without just compensation. But from the time of its creation, the copyright in a journal article belongs to its authors. The NIH-style open access requirement is something authors choose to agree to, or not, long before they ever create the article. Any cession of rights is agreed to by the author, before the rights exist. Considering how important federal grant funds are to many researchers, this is not a completely free choice – but I have heard very few authors actively arguing against such requirements. Most of them recognize the benefits open access provides to them and the research enterprise, and the moral claim that taxpayers ought to be able to access research they funded.

Even if you accept publishers’ arguments that they add value through the editing process such that the peer-reviewed, edited version is somehow morally a work of the publishers’ authorship (and boy howdy do a LOT of authors not agree with that), their rights are, at best, still derivative of the authors’ copyrights. Government open access mandates don’t take any rights away from the publishers; authors agree to conditions on their grant funding long before the publishers come into the rights-ownership picture.

The only choice forced on publishers is whether to publish the works of
an author who cannot sign over all the rights (because they have already
ceded some rights elsewhere), or not. They are not forced to cede their
rights, because at the point of cession, the rights are not theirs.

A few clarifications on Pinterest/Copyright/TOS worries

Glad a lot of people are finding my previous post about Pinterest useful and informative. A number of comments, tweets, and emails have pointed out a couple of areas that I glossed over too fast in that post, so here’s a couple of additions and clarifications.

1. A couple of people have interpreted the previous post as a wholesale endorsement of (or even “advertisement for”) Pinterest.

I actually haven’t been using Pinterest, don’t have an account on it, don’t see myself using it much in the future. Not really my thing. I’m also not affiliated with Pinterest in any formal way, and I don’t think I know anyone who works there.

However, I have enjoyed looking at the boards friends have put together or shared links to – if you put the legal and/or ethical issues aside (which I don’t think are unique to Pinterest anyway) I think it’s a great new tool for curating online content. And I think there are lots of great legal and ethical ways to use it. Which is why I care whether overblown fears stop people from using it.

2. Nope, I am not saying “Pinterest is fair use.”

If you don’t have much experience with copyright issues, it’s really difficult to understand fair use, especially with images as your main examples. Fundamentally, fair use says it is 100% legal to make copies of other people’s stuff without permission or payment – SOMETIMES. Quite certainly, some of the copies people have made on Pinterest (remember, “pinning” makes copies, which immediately raises copyright issues that just linking does not) are legal under fair use. Some of them probably are not.

If you want to know if the copies you made are legal fair uses, you should learn as much as you can about fair use*, and use your best judgment. The fearmongers and spreaders of copyFUD would have you believe that you cannot possibly understand fair use well enough to make reasonable judgments about your own uses. I think better of you than that.

If the idea that people can make legal copies without paying sounds like an artistic injustice to you, you might consider thinking about all the ways fair use enables artistic production. Collage, remix, parodies, satire, appropriation art, and even photographs that reference or incidentally copy other images – all rely on fair use.

3. Yes, some copies on Pinterest are undoubtedly legal.

You can make copies of public domain stuff (note: “public domain” does NOT mean “anything that’s public online”. It means “a specific class of materials in which copyright has ended, or never existed in the first place.”  U.S. federal government documents are public domain; works on which copyright has expired are public domain. 

You can make copies of Creative Commons licensed works, if the license allows it and you provide credit appropriately. You may need to learn more about what kinds of copying the various licenses allow, and how to appropriately credit, to make good calls on that.

Check out my “Joys of the Public Domain/Creative Commons” posts for examples of public domain and Creative Commons image copies: Spring Flowers; Sweaters; Rail Snowplows.

You are probably also okay making copies when the owners of the images invite you to do so – however, that can be a little murky. For example, some Etsy users were not happy when Etsy enabled a pinning function throughout the site.

4. Okay, so the Terms of Service are much like other sites; why should that make anyone feel any better?

I agree that the Terms of Service read a bit intimidatingly. But you agree to terms and conditions documents like that quite literally all the time – not just online. Most retail receipts include similar terms, as do most travel and event tickets. And yet, it is incredibly rare for companies to, for example, try to require a user to indemnify them (cover litigation costs) for a lawsuit – much less to sue their own users for breaches of the terms. (It’s hard to explain why such one-sided legal agreements are so prevalent in our lives without getting pretty deep into contract theory and a discussion of how many parts of the legal system don’t actually work for actual people in the real world – which is a bit beyond my ken, certainly in one blog post.)

It’s also not usually attractive for people who might have the right to go after individuals in a lawsuit to do so – the “deep pockets” (i.e., entities that can actually pay damages) are elsewhere. However, copyright is actually an outlier here, and individual users do get sued fairly often – so if you believe your use of Pinterest to have been heavily infringing, some concern, and/or removal of material, may be warranted.

Finally, however powerful contracts may be, they can’t functionally give Party B (say, Pinterest) rights that Party A (say, an individual user) doesn’t have. So even if you uploaded stuff that you didn’t have a right to upload, you have not magically given Pinterest the right to sell that image. You maybe did violate the terms of service, but the point of looking at the TOSs of other social sharing sites (or reading the backs of receipts, or even standard warranties) is to show you that you do that all the time. Not violating contracts is a good idea. But if you don’t know you agreed to them, or don’t understand them, there’s not much you can do except try to be more aware and informed in the future.

* To learn more about fair use:
University of Minnesota Copyright Site – https://www.lib.umn.edu/copyright/useoverview
Stanford Fair Use Project  – https://fairuse.stanford.edu/
Center for Social Media’s Fair Use info – https://www.centerforsocialmedia.org/fair-use
EFF’s Legal Guide for Bloggers – https://www.eff.org/issues/bloggers/legal/liability/IP

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