Pinterest, copyright, and Terms of Service

[Update, 3/13/12 – some clarifications and additions.]

There’s a couple of different articles circulating about a Pinterest user regretfully deleting her Pinterest boards and/or account, because it’s just illegal/unethical/morally wrong/too scary/something else. A number of my friends have shared links to these articles or others about Pinterest and legal issues, accompanied by an announcement that they, too, are deleting their Pinterest boards. This makes me sad, for a number of reasons!

  1. While the way Pinterest functions certainly raises a number of copyright issues, they’re not significantly different from the issues raised by many other social sharing sites!
  2. A lot of people are talking about how scary the Pinterest terms of service are – but they are not significantly different from those of many other social sharing sites.
  3. These posts create a great deal of fear, uncertainty, and doubt about what users are “allowed” to do online – which for a lot of users, including my friends, has clearly translated to choices not to do those things. This is called a “chilling effect”, and it’s the whole point of spreading FUD in the first place. It’s not a good thing.
  4. There are some unique characteristics of the Pinterest user community – both the fact that a lot of women are using it, and that a lot of photographers and other commercial artists are using it – that are playing into the interactions around the legal issues in some unusual ways. I’m not sure I fully understand it all, but I’m also not sure it’s not actually a bit screwed up. 

I have a lot more to say about the first two things, and not much more to say about the third or fourth things right now in any useful form. The TL;DR version is the stuff above. Thought I’d help out you short-attention-span folks.

I’d also add that I’ve seen a couple of posts in response to these concerns that are NOT raising fear, uncertainty, and doubt, but rather legitimately engaging with the ethical and legal issues. Emily Lloyd’s post was interesting; I don’t entirely agree, but have had fruitful further discussion, hooray!

Copyright Issues in Social Sharing

The first article I saw about this issue was about a Pinterest user who is a lawyer. This article has REALLY BAD SUMMARIES of that user’s understanding of copyright law. The post I’m seeing circulated more heavily more recently is actually the original post by the Pinterest user who is a lawyer. The copyright analysis here is not as badly done, but it is well into the realm of copyFUD (shorthand for “articles spreading Fear, Uncertainty, and Doubt re copyright and fair use”.)

[Not to cast any aspersions on my fellow members of the bar – or to suggest anything specific about the experiences of the author of the original post – but it’s worth noting in passing here that most lawyers graduate from law school without ever studying any copyright law.]

Pinterest does have a copyright problem – it is not totally obviously A-OK for it to operate the way it does, or for users to use it the way they have been.

The biggest copyright problem is that Pinterest makes copies of the images people “pin”. It does not simply create a link to the source image, it actually makes a new copy of the image. (The new copy does link to the source from which the image was pinned, although that’s not always the original source of the image.)

When you’re making copies, any copies, of copyrightable material, copyright is an issue. But it does not necessarily follow that because copyright is an issue when you make copies, copyright obviously and clearly prohibits the making of those copies. Fair use is one way the law allows people to make copies without permission or payment. The above-linked posts and a lot of other copyFUD suggest that fair use is a) sketchy, b) scary, c) waaay too unpredictable/hard to understand (i.e., scary), and anyway d) never allows copying whole works (except maybe thumbnail images.)

I vehemently disagree with this characterization. While fair use is not a straightforward part of the law, and is not very predictable, it is something that the average user can come to understand, and it does allow for a lot of copying that individuals do. (Perhaps now you want to learn more about use rights in copyright?)

Fair use certainly sometimes allows for making copies of entire works, especially when sharing the whole work is necessary to facilitate commentary on the original. Even where no commentary is being made, the Supreme Court has upheld making copies of entire works as fair use.

There’s another reason I think lots of pins may be legal, and it’s another fundamental legal underpinning of a lot of web services: implied or express license. If you pinned something at the behest of the original creator (even if they didn’t explicitly give you a formal copyright license to do so), that’s very likely legal. There are a lot of websites encouraging users to pin their stuff! F’rexample: ModCloth, Homes.com  Since Pinterest is so new, I’m not going to suggest that there’s an implied license to pin everything that’s public on the web (although that’s basically the underlying legal justification of most internet search engines). But I would point out that Pinterest does allow folks to opt-out of letting their image be pinned.

If you’re still feeling like fair use is scary (it’s not! it’s a super-cool engine of creativity, innovation, and free expression!) or too unpredictable for your tastes (fair enough), I’d remind you that there is no explicit legal reason you can print out a webpage or forward an email…

I’m not suggesting that every image every user pinned is obviously
a fair use, or covered by an implied license. Lots of users clearly haven’t even been aware
they’re making copies, much less thinking about whether fair use allows
them to do so. But I do think fair use probably covers some pinning, and implied or explicit licenses cover some more. At least as much as they cover the random copying users do on Tumblr and many other web services!

Terms of Service 

The Pinterest FUD posts and articles are also highlighting elements of the Terms of Service as problems for users – particularly the indemnification clauses, the clauses where users agree that they will only upload material for which they have the right to upload, and the clauses that include a license of copyrights to Pinterest.

If you are uploading stuff to Pinterest that you don’t own or otherwise have the right to distribute, you are probably violating their Terms of Service, and you may be infringing copyrights. If you are violating the TOS, they can… um… cut you off? Delete your account? They can also sue you for breach of contract, and some gung-ho prosecutor could also use a violation of the TOS to bring criminal charges against you, so although those courses of action are unlikely, it might be, you know, a good idea to try to comply with TOSs in general. 

Or at least, to read them?

These elements of Pinterest’s TOS are common to just about ALL USER-GENERATED-CONTENT SITES’ TOSs (though I’ll admit that Pinterest is somewhat unique (and kinda weirdly archaic in a couple of places) in their specific language and points.) Let’s take a quick look around…

Tumblr

Indemnity: “Subscriber will indemnify and hold Tumblr, its directors, officers and
employees, harmless, including costs and attorneys’ fees, from any claim
or demand…”
Right to share: “Subscriber represents, warrants and agrees that it will not contribute
any Subscriber Content that (a) infringes, violates or otherwise
interferes with any copyright or trademark of another party […] (c) infringes any intellectual property
right of another or the privacy or publicity rights of another…”
License of copyrights: “…hereby grants and agrees to grant Tumblr a non-exclusive, worldwide,
royalty-free, transferable right and license (with the right to
sublicense), to use, copy, cache, publish, display, distribute, modify,
create derivative works…”

Full Tumblr Terms of Service

YouTube

Indemnity: “…you agree to defend, indemnify and hold harmless YouTube, its parent
corporation, officers, directors, employees and agents, from and against
any and all claims, damages, obligations, losses, liabilities, costs or
debt, and expenses (including but not limited to attorney’s fees)…”
Right to share: “You affirm, represent, and warrant that you own or have the necessary
licenses, rights, consents, and permissions to publish Content you
submit..” AND “You further agree that Content you submit to the Service will not
contain third party copyrighted material, or material that is subject to
other third party proprietary rights, unless you have permission from
the rightful owner of the material or you are otherwise legally entitled
to post the material and to grant YouTube all of the license rights
granted herein.”
License of copyrights: “you license to YouTube all patent, trademark, trade secret, copyright or
other proprietary rights in and to such Content for publication on the
Service” AND
“you hereby grant YouTube a worldwide, non-exclusive, royalty-free,
sublicenseable and transferable license to use, reproduce, distribute,
prepare derivative works of, display, and perform the Content…”

(Not to mention points 9 and 10, in all their caps-locked glory.)

Full YouTube Terms of Service

Facebook

Indemnity: “If anyone brings a claim against us related to your actions, content or
information on Facebook, you will indemnify and hold us harmless from
and against all damages, losses, and expenses of any kind (including
reasonable legal fees and costs) related to such claim.”
Right to share: “You will not post content or take any action on Facebook that infringes
or violates someone else’s rights or otherwise violates the law.”
License of copyrights: “For content that is covered by intellectual property rights, like photos
and videos (IP content) […] you grant us a non-exclusive, transferable, sub-licensable,
royalty-free, worldwide license to use any IP content that you post on
or in connection with Facebook (IP License).”

(Props on their use of human-readable language!) 

Full Facebook Terms of Service 

And finally, from a user agreement for uploading content onto a server the University of Minnesota Libraries hosts! (Yes, I think these are reasonable terms of use, because I was involved in drafting them! (Although I’d still simplify the language a little.))

Indemnification (sort of): “I agree that I am solely responsible for the Content and for any consequences of uploading it to the [Server] and making it publicly available…”
Right to share: “I am the sole creator and the owner of the copyrights and all other rights in the Content; or without obtaining another’s permission, I have the right to deposit the Content in the [Server]” AND “The Content does not infringe the copyrights or other intellectual property rights of another, nor does the Content violate any laws or another’s rights of privacy or publicity. The Content is solely my original creation or if not, those portions that are not my creation are used with the copyright holder’s express permission or as permitted by law.”
License of copyrights: “I grant […] the following non-exclusive, perpetual, royalty-free, world-wide rights and licenses: to access, reproduce, distribute and publicly display the Content, in whole or in part, to secure, preserve and make it publicly available, and to make derivative works based upon the Content in order to migrate the Content to other media or formats, or to preserve its public access.”

So anyway. That’s my thoughts about the copyright and terms of service issues folks seem to be discussing about Pinterest. Even though it is ridiculously long, I’m sure I left out lots of things, and there are many more thinky things I’m thinking about this, but it is beyond time for me to go home and eat dinner! 

ETA: New post 3/13/12 with some clarifications and additions to this info.

Best Practices in Fair Use – a couple of thoughts

code-of-best-practices-cover~s200x200.jpgEarlier this week, the Association of Research Libraries released a new document called the Code of Best Practices in Fair Use for Academic and Research Libraries. The document is the result of a multi-year process of interviews and focus groups with librarians and others involved in library work and management, and aims to outline some common situations where many in the library community agree fair use can apply.

Full disclosure: I participated in this project at both the interview and focus group stages. Here are some of my general thoughts on the result:

“Best Practices” vs. “Guidelines”

I really like the community-based best practices approach to talking about fair use, even though it leaves a number of things somewhat uncertain. There is simply no way to provide certainty about fair use that doesn’t involve drawing lines far inside the boundaries of what fair use actually allows. And in most situations, guidelines that aim to provide certainty also overstate the bounds of fair use – “30 seconds of video is always okay, more than that is never okay” is terrible information about fair use of video in any context.

Developed with input from members of specific communities of users, these Best Practices documents articulate specific points of fair use that are of high interest to the community in question – where some idea of how to approach the problem would be particularly helpful for community members who are not well-versed in copyright concerns. But the Best Practices documents do not purport to address points (even of high community interest) where informed people don’t also largely agree on principles. As the document explicitly states, “[t]he groups also talked about other issues; on some, there seemed not to be a consensus, and group members found others to be less urgent.” And those issues are not included in the Best Practices.

I was fascinated to read the Code of Best Practices in Fair Use for Poetry last year, because it articulated several fair use situations I had never considered before, but which were obviously of high interest to people in that community. If I were trying to figure out what the contours of fair use were for poetry readings, I would definitely want to know how things usually work in similar situations. Courts look to common practices to inform the “fairness” and “appropriateness” parts of fair use. Following community norms is not going to save anyone where the community norms are completely out of alignment with the law, but where community norms track reasonably well with legal considerations, they are often considered relevant by courts. As the document points out, “There are very few [fair use] cases specifically involving libraries,” so community practices are one of a very few forms of guidance available.

It is difficult to make progress across the uncertain and unlighted landscape of fair use. The bright-line/guidelines approach strongly illuminates a single, supposedly safe path – but leaves travelers entirely unenlightened about the dark areas that comprise the vast majority of the landscape. The Best Practices approach helps us become more aware of the fair use landscape as a whole, and it helps us know where other travelers similar to ourselves have gone and may be going.

“It’s totally biased! They didn’t consult any copyright owners!”

It’s true, they didn’t. But this criticism seems wrong-headed on a couple of counts: first, it suggests is that most people who want to understand what fair uses they can make are trying to put one over on copyright owners – but in the cycles of human culture, almost every one of us is both a user and a creator of copyrightable works. There may be opposing sides in copyright discussions, but the idea that the opposing sides of copyright are creators and users is a damaging fiction.

When librarians bring this criticism against a code developed by library organizations, in deep consultation with a large number of library and legal professionals, I’m stymied. Do they think that our entire profession somehow wants to put one over on the creators of all the works we lovingly maintain and make available to the world?

When this criticism comes from major corporate content owners or representatives thereof, I absolutely understand their point. They do have interests in controlling the uses of their work. But (as much as I am loath to bring physical property analogies into the world of intellectual property) I’d offer this comparison: if there is a public easement – a public-right-of-way – over a piece of land, it would be extremely irrational to rely on a land owner to remember the boundaries of a public easement. And if the land owner got to charge money automatically anytime someone stepped outside of the easement (as with copyright’s statutory damages), the land owner’s incentive to narrow the easement over time would be very very high.

The Eight Principles

There are the eight Principles outlined in the Best Practices document. Each Principle is accompanied by a much more detailed Description of the
kinds of situations where it might be relevant, Limitations that must
be considered before a use could possibly be fair, and Enhancements that
might strengthen fair use arguments. All of that material should be
consulted in detail to really understand any of these Principles.
Moreover, ARL and the authors have provided an excellent collection of accompanying materials for better understanding, including FAQs (for librarians, for professors, for students), videos, explanations of this unique approach to understanding fair use, and quite a bit more. Go get yourself more educated! I sure plan to!)

Here are the principles:

  1. It is fair use to make appropriately tailored course-related content available to enrolled students via digital networks.
  2. It is fair use for a library to use appropriate selections from collection materials to increase public awareness and engagement with these collections and to promote new scholarship drawing on them.
  3. It is fair use to make digital copies of collection items that are likely to deteriorate or that exist only in difficult-to-access formats, for purposes of preservation, and to make those copies available as surrogates for fragile or otherwise inaccessible materials.
  4. It is fair use to create digital versions of a library’s special collections and archives and to make these versions electronically accessible in appropriate contexts.
  5. When fully accessible copies are not readily available from commercial sources, it is fair use for a library to (1) reproduce materials in its collection in accessible formats for the disabled upon request, and (2) retain those reproductions for use in meeting subsequent requests from qualified patrons.
  6. It is fair use for a library to receive material for its institutional repository, and make deposited works publicly available in unredacted form, including items that contain copyrighted material that is included on the basis of fair use. 
  7. It is fair use for libraries to develop and facilitate the development of digital databases of collection items to enable nonconsumptive analysis across the collection for both scholarly and reference purposes.
  8. It is fair use to create topically based collections of websites and other materials from the Internet and to make them available for scholarly use. 

It is unfortunate that principle number 5, that it’s fair use to make things available to people with
disabilities, even needs to be
articulated. It is incredibly frustrating that there is a constant need to make this
kind of fair use (i.e., that most content is not made available in
accessible formats as a matter of course.) And it is utterly shameful that there are organizations and
individuals out there who, right now, actively fight against copyright and DRM exceptions for people
with print disabilities.

Otherwise, I don’t think it’s all that important or helpful to talk about the details of each principle from a general perspective. The details only really make sense in
relation to an actual library’s actual use concerns.

In a few places, a Principle seems a bit more vague than is
entirely helpful – but I found the accompanying Limitations and Enhancements helped me understand what they were
getting at. The Limitations, in particular, are extremely helpful in understanding the finer legal considerations underlying of each of the Principles.

Overall, the principles seem like reasonable articulations of fair use practices, and are helpfully on point to activities that are increasingly common in libraries. Several of the principles strike me as blindingly obvious applications of fair use in almost any library situation, although I know some institutions have avoided taking full advantage of fair use rights due to uncertainty or a more risk-avoidant institutional mindset.

The specific facts are of course still the real determinants of whether a particular use is fair, and of whether and how an institution chooses to tolerate the uncertainty that is necessarily concomitant with a fair use justification for any activities. But the Best Practices document gives the library community a great jumping-off point for deeper examinations of many of our common copyright use situations, and are a great contribution to the toolbox of anyone dealing with copyright issues, in libraries and beyond.

Academic publishing is full of problems; lets get them right.

I can’t quite tell whether this piece from The Atlantic is meant to be editorial or news (it’s okay if it’s both, or neither – I’m not picky about traditional delineations like that.) It’s pretty opinion-y, and it’s an opinion that I very much share – academic publishing has some very broken economics that need fixing. I appreciate anyone bringing attention to the issue – a large portion of my job is open access education and advocacy – and I absolutely agree with author Laura McKenna’s basic point that this cycle broken, and that it’s largely a result of “stubborn tradition”.

But McKenna is really wrong about a bunch of specifics, and there are a lot of people out there (with a lot of money), who want to shape the narrative around the economics of academic publishing in a really different direction. This article is in a fairly high-profile and general interest publication, but it’s so factually incorrect in so many different ways that it invites ridicule to the whole position. So, some responses, starting from the top:

  • “I searched for an article about autism on JSTOR, the online database of academic journals.”

    JSTOR is not “the online database of academic articles” – McKenna does acknowledge later that there are other databases, so this isn’t a complete factual error, but I think this phrasing may reflect the root of several of McKenna’s other errors.

    Most large academic libraries subscribe to hundreds of databases of academic articles. This is itself an artifact of the broken economics of scholarly publishing – especially how badly these databases interrelate and interoperate! If you want to do an exhaustive search in a subject area, it’s likely you’ll have to look in at least a couple of different electronic locations. It can be frustrating and time-consuming (though hey, before this stuff, researchers were working with bound, paper indexes. Just sayin’.)

    A lot of people, including many faculty members, have difficulty navigating this maze of subscription databases. Sometimes they choose to spend most of their research time in a single database or with a single access vendor. It’s not a great plan for any in-depth research projects, but it’s an okay approach for a first- or second-year
    undergraduate assignment. It’s also not a bad approach for a quick first-pass at a research topic, but for the author’s particular topic of autism, I’d suggest, perhaps, PubMedCentral as a resource that might provide richer, more on-topic, and (thanks to a policy of the National Institutes of Health) freely available full-text articles.

    JSTOR provides access to a whole lot of articles from a whole lot of
    journals – in some fields, the majority of relevant journals
    (though not always the most recent content) are available through JSTOR – so JSTOR is a pretty popular choice for people
    who narrow their research focus to one interface. But a distressingly large number of people actually hold the mistaken belief that there is literally only one way to find academic articles – and again because of its broad content, a lot of people think this of JSTOR. This misunderstanding may be due to limited outreach from their library, or it may be because a lot of people don’t really pay attention to what librarians try to talk to them about. While I’d like to say that most of these people are undergraduates, that’s not true – most undergraduates who hold this belief have learned it from an instructor.

    Oh, um. That was just the first sentence of the article? Eep. Moving on.

  • “…for the most part, only individuals with a college ID card can read
    academic journal articles.  Everyone else, including journalists,
    non-affiliated scholars, think tanks and curious individuals, must pay a
    substantial fee per article, if the articles are available at all.”

    Most public research universities offer access to most of their
    subscription content to anyone who walks in the door and sits down at one of the computers in the library. You can also often get access to an article via interlibrary loan, by asking at a public library that then requests a copy from an academic library. At the University of Minnesota, access to nonaffiliated users who are physically present in the library and use for interlibrary loan are big points of negotiation in our subscription contracts.

    A few vendors will
    not     sell us this kind of access, and some others try not to, which I think are both pretty nasty moves on their
    parts. We will pay for the public to have access, and they don’t want to sell. That totally is because they would prefer to have people pay for their own individual access, as McKenna notes, or not offer public access at all.

    Access for people who are not affiliated with colleges or universities IS a big problem – and getting bigger all the time as more and more resources (articles, books, other media) are available only under licenses which restrict public access or interlibrary loan. But there are still options and alternatives.

  • “…research is funded by national grants and subsidized through the
    university. The professor is given travel money and “release time” to
    conduct the research.”
    “Faculty are given course release time to edit the journal and a small
    stipend. The university provides offices and work-study students to help
    with the secretarial work.”

    It is totally true that universities underwrite the labor costs of
    faculty in the writing and review process. However, a faculty member in many disciplines and at many schools is extremely lucky if she gets travel money or release time for research, or a
    stipend to edit a journal, or any support from student workers funded by the university.

    That is, not only do universities underwrite the labor costs of academic writing and review, most faculty members do so out of their own pockets. Academic publishers’ profits are subsidized by the authors and editors themselves, and by federal grants, foundation grants, a million other kinds of grants, as well as by universities.

  • “Academic journals are housed at universities and are subsidized by the university…”

    Relatively few academic journals are housed at universities. Most are
    run through scholarly societies, and until recently many societies were,
    more or less, publishers. Sometimes a university underwrites the costs of a society publisher, but that’s not very common. Over the last decade or two, increasingly,
    societies outsource publishing of their journals to commercial academic
    publishers – most of whom are, again, not affiliated with universities.

  • “the journal editor […] sends it to a for-profit publisher.”

    A small number of for-profit publishers are increasingly consolidating in the field of academic publishing, but some academic publishers, especially small scholarly societies, are still non-profit.

    The major for-profit publishers do make ridiculous profits. Like, 32-42% profits.

  • “The publisher is key, because he needs money to print and distribute the
    journal for its tiny community of readers. To make that money, the
    publisher sells the rights to an academic search engine company, like
    JSTOR.”

    I don’t even know where to start. JSTOR isn’t a search engine, and it’s not a company. JSTOR is non-profit, and it’s basically an archive of published content. Some academic publishers let JSTOR digitize and provide access to old articles, and some let JSTOR provide access to new articles (though usually after a time-delay) in
    parallel to a separate publisher site. There may in fact be money changing hands, and there certainly is some licensing of distribution rights, but it doesn’t work like this.

    Non-profit and small independent publishers do need money to distribute their journals – fewer and fewer put anything in print, but publishing online and maintaining online access is not costless. However, they usually get that money from society membership fees, charging libraries for access to the articles, or by letting a big for-profit publisher charge for access and kick back some money to the small publisher. They do not usually get that money by selling anything, rights included, to JSTOR.

  • “Having bought the rights to the academic research, JSTOR digitizes the
    material and sells the content back to the university libraries.”

    The publishers usually retain ownership of the rights, even when the content is available in JSTOR. Also, JSTOR doesn’t routinely digitize new or recent content because, like everyone else in modern publishing, they usually work from the electronic originals.

  • “To recoup their costs of leasing the information from the publishers,
    the academic search engines use a subscription model to restrict the
    content to those who can pay the hefty price tag.”

    JSTOR is a non-profit. A lot of their charges go back to maintaining the services they already host, developing new services, and digitizing new old stuff.

    For-profit academic publishers do set up hefty price tags, and place restrictions on subscription content, but it’s for profit, not cost-recovery. Some small publishers charge libraries subscription fees on a cost-recovery basis.

  • “To get access to the Arts and Sciences collection at JSTOR — only one
    of the many databases and collections of information — university
    libraries must pay a one time charge of $45,000 and then $8,500 every year after that.”

    This may be true (though lots of libraries have weird individual or consortial negotiated pricing schemes) but OMG it is cheap compared to some single journal titles from commercial publishers. The average yearly subscription cost for single journals in some disciplines is over $4,000.

  • “The challenge is finding a way to get research on the web by bypassing
    the publisher/JSTOR nexus. If academic journals skipped that needless
    step of providing a print version of their journals, they could stop
    this cycle. They could simply upload the papers to a website and take the publishers out of the process.”

    I think I’ve pretty much fully addressed the misconception of a “publisher/JSTOR nexus”, but wanted to point out that continuing to provide print access is not the thing that’s hanging up this dysfunctional cycle. Online-only access carries plenty of costs of its own. The non-profit open access publisher PLoS charges a publication fee of couple thousand dollars an article to underwrite only some of their costs. Many institutions or grants underwrite open access publishing fees or even whole open access publications, though. In the long-run, the costs are much lower to institutions than when subsidizing commercial profits.

    Several disciplines have managed to bypass the broken academic publishing economy through a
    great resource called the arXiv – or through other new models of academic distribution. But lots of academic authors don’t adopt the online-distribution, review-after-publication model
    – or any of the other models that have already been developed or are developing for non-print academic discourse – because they’re caught up in peer review and tenure systems that
    are stuck in the early 20th century.

There are things JSTOR does that I do have issues with. I wish it was doing more to provide more open access to the public domain materials it holds, for example. The JSTOR independent researcher program has all kinds of problems. But JSTOR is, for the most part, a pretty good element of the existing landscape, and certainly not the central problem McKenna makes it out to be.

The broken economics of academic publishing are not as simple as
they look when you first become aware of the problem, and the details do
matter. I agree that breaking out of traditional publishing models is necessary to any fix. I am very glad that many people are already working very hard on a number of promising approaches to reform in this system, and a number of alternatives to traditional models are already available.

All culture is remix – Despicable Me/Hogwarts

There’s nothing anyone creates that isn’t shaped by everything they’ve been exposed to all their lives. Sometimes it’s conscious, sometimes unconscious. Here’s a great example:

Miss Hattie totally looks like Dolores Umbridge.jpg

Description: side-by-side freeze-frames of two movie characters, both pale-skinned women with brown hair in bouffant styles, both wearing pale pink sweaters and maroon skirts or dresses, both in offices with multiple pictures hung on the walls.

On the left, “Miss Hattie”, a character from the movie “Despicable Me” who runs a children’s home and exploits her charges as unpaid labor in a shady cookie-selling empire, while maintaining a facade of loving care. On the right, “Dolores Umbridge”, a character from the movie version of “Harry Potter and the Order of the Phoenix” (and subsequent installments), who takes over the running of Hogwarts Academy and abuses the children in her care “for their own good”, while maintaining a facade of loving care.

While “Despicable Me” didn’t come out in theaters until 2010, I’d be willing to bet the character design of Miss Hattie was well underway before “Harry Potter and the Order of the Phoenix” was out in 2007. And yet, these characters who have similarly nasty temperaments and similarly odious relationships to children, look strikingly visually similar as well. Could it be that, because of shared cultural referents, people working in separate environments came up with very similar ways of representing an idea? Yeah, it could.

(Do I have a whole folder full of bookmarks from TotallyLooksLike.com? Yeah, I do.)

Spring Copyright Workshops Open!

The University of Minnesota Libraries offer three different basic copyright workshops for the UMN community. Most are aimed at faculty, but may be open to participation by others. We also offer custom workshops on specific topics, or at specific dates and times, for University of Minnesota departments, workgroups, etc. RCR continuing ed credit is often available. Feel free to contact me to set one up.

If you’re not affiliated
with the U of MN, but would like to attend one of the online sessions
just to listen in, contact me via email. I’ll open reg as space is
available, and will give preference to librarians looking to develop
their own copyright knowledge (or teaching).

Here’s the schedule!

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, 02/13/2012 – 2:00pm – 4:00pm
Location: 310 Walter Library

Mon, 03/05/2012 – 2:00pm – 4:00pm
Location: S30A Wilson Library

Wed, 03/07/2012 – 1:00pm – 3:00pm

ONLINE-ONLY session via UM-Connect. Priority given to participants from UM coordinate campuses (Crookston, Duluth, Morris, Rochester) or other UM-affiliates who work out-state.

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.

Wed, 02/22/2012 – 2:00pm – 4:00pm
Location: Magrath Library Instruction Room (Room 81)

Tue, 02/28/2012 – 10:00am – 12:00pm
Location: 101 Walter Library

Fri, 03/23/2012 – 10:00am – 12:00pm

ONLINE-ONLY session via UM-Connect. Priority given to participants from UM coordinate campuses (Crookston,
Duluth, Morris, Rochester) or other UM-affiliates who work out-state.


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.

Fri, 02/03/2012 – 1:00pm – 3:00pm
Location: S30A Wilson Library

Mon, 02/06/2012 – 10:00am – 12:00pm
Location: Magrath Library Instruction Room (Room 81)

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

Current Issues in Higher Ed Copyright

Not the post I promised, but this week has been a little… weird. Mostly for good reasons.

One of the good things this week was that I met with the University Senate Library Committee to touch base on copyright issues. I was asked to provide a summary of some current hot copyright issues in higher education – so here’s that summary (with bonus links to more info!)

Georgia State Case (aka
Cambridge University Press et al v. Patton et al) 

Individuals at Georgia State University were sued over the use of journal articles in
password-protected electronic reserves and course websites. The parties
bringing suit include Sage
Publications, Oxford University
Press, and Cambridge University
Press. Legal expenses of the publisher-plaintiffs are being subsidized about 50% by the non-profit
and ostensibly neutral Copyright
Clearance Center.

Oral arguments were heard in June, and an opinion is expected at any time. Because the case is currently
in District Court (Northern District of Georgia), itis likely any opinion will be appealed. Final
rulings are likely many years away. However, it is worth noting that the publisher-plaintiffs have asked the court
to find that the 1976 “Classroom Copying Guidelines” (which were intended
to outline some minimum standards for fair use) are an appropriate maximum
measure of fair use today. They have also asked that the court hold that no more than 10% of any course-based
uses should be allowed to proceed without payment, regardless of compliance
with the Classroom Copying Guidelines, or use of paid subscription materials or
non-copyright-protected materials.

More information:
My own prior posts on this case.
Kevin Smith’s “A Nightmare Scenario for Higher Education”

UCLA Case (aka AIME et al.
v. Regents of UCLA et al.)

The Regents of UCLA, as well as some individuals, were sued
over the conversion of video content
owned by the University to online streaming formats. The case was dismissed last week, for a number of
reasons. In addition to technical issues such as sovereign immunity and lack of
standing, the court ruled that the
licenses the University had already purchased for “public performance” covered
the online streaming when restricted to UCLA users. They also ruled that incidental copies made in
pursuit of the legitimate licensed rights were fair use.

More information:
Christine Ross – “V is for (small) Victory (and for Video)“
Peggy Hoon – “Copyright, Contract, or Complicated? AIME vs. UCLA Dismissed: Implications for Licensing“

Golan v. Holder

A music professor (and professional conductor) is the named
plaintiff in this case, which challenges
legislation that removed many older foreign works from the public domain
(in compliance with some of our treaty obligations.) Oral arguments were heard before
the Supreme Court last week. 

More Information:
The Chronicle of Higher Education – “Supreme Court Takes Up Scholar’s Rights” by Marc Parry
New York Times editorial in support of the professor-plaintiff – “The Public Domain“

Campus licenses (CCC; CPC;
Canada)

In recent years, the Copyright Clearance Center (CCC) has
been selling “blanket” licenses in which a single payment satisfies copyright
permissions issues across all campus uses. A number of U.S. institutions have
signed on to this sort of license, but it is not a complete solution: the CCC does not have the power to authorize
the use of some of the materials used on campuses. Although their blanket
license has been suggested as a solution to the issues presented in the Georgia
State case, they do not clear rights for
works owned by Cambridge University Press, one of the plaintiffs!

More Information (on licensing in general):
ARL Policy blog/Brandon Butler – “How Many Times Must Libraries Pay for the Same Coffee, er, Content?“
Paul Courant – “Georgia State in Publishers Weekly: Tom Allen of the AAP vs. Moi“

Canadian institutions are currently grappling with the
opposite side of blanket licensing; for
many years, academic use in Canada has been (largely) covered by a nationalized
blanket license to an organization called Access Copyright. Access Copyright recently raised the rates
by a large amount, and a number of universities have balked at the
cost. Recently, at least one judicial proceeding has determined that Access Copyright can legally refuse to sell
universities licenses on a case-by-case basis – a big setback for the
Universities. Some of them are working
with the CCC on case-by-case or blanket licensing. Others are committing to the use of nothing but public domain and
open-licensed materials on their campuses.

More Information:
Howard Knopf – “Copyright Board Refuses to Require Transactional Licenses from Access Copyright or its Rights Holders“
Michael Geist – “An Unofficial FAQ on Canadian Universities Opting-Out of Access Copyright” and heck, ALL of his posts about this issue.

Google Books settlement

Parties related to the Google book scanning project have
been negotiating about terms of a settlement for several years. The presiding
judge has denied proposed settlement terms for a number of different reasons,
and it is looking increasingly unlikely
that a large-scale solution will be found via this process. Google is
proceeding with the project, but seems to be pursuing a variety of paths to
resolve outstanding legal issues.

Hathi Trust Orphans suit (aka
Authors Guild, Inc. et al. v. HathiTrust et al.)

Hathi Trust is a partnership of major research institutions
and libraries that hosts a large online library of digitized works, mostly
public domain. Recently Hathi announced plans to identify “orphan” works in their collection – currently
in-copyright works for which no rightsholder is identifiable or contactable – and make them viewable by individuals on
partner campuses. Although discussions had been proceeding between the
Authors Guild and Hathi on this issue, the Authors
Guild unexpectedly filed suit on September 12.  The suit attacks
library digitization very broadly – despite the fact that, as yet, Hathi
Trust still only provides full-text access to public domain works. A number of
international authors’ groups have just announced they are joining the suit. It
is very unclear exactly how the case will proceed.

Due to concerns about the procedures for reviewing orphan
status, the Orphan Works Project has been put on hold at present. However, it
is not being shut down; Hathi Trust has
expressed a commitment to their plans, and a firm belief in the fair use legal
justification for the project. 

More Information:
Kenny Crews – “HathiTrust and the Litigation Path”
James Grimmelmann – “The Procedural Swamp“
University of Michigan FAQ on the University’s Digitization Efforts

There are, of course, lots of OTHER issues in higher ed copyright right now, but those are the ones I had time to write about for yesterday’s meeting, and update today!

On not scaring people.

For folks who haven’t thought much about copyright before, the end result of attending one of my presentations or workshops, especially ones focused on fair use, is sometimes a very constraining feeling of fear. I’ve known about the problem for a while, and have tried a number of more and less successful techniques to prevent or address it. Fear and risk-aversion is SO not a good copyright-education result.

On Monday I had to do a presentation for a slightly larger group than usual (about 50 people), and rather than repeatedly split in to small groups to discuss fair use examples, I switched up the plan a bit, and put some examples on the screen for whole-group discussion. The switchup resulted in a truly unexpected moment of insight. Here’s the slide that caused the revelation:

Slide showing an anatomical illustration of a dromedary skeleton and posing the question whether it is fair use to use this image, and 20 others like it from 3 different books, in an appendix to a PhD dissertation

This slide went up on the screen after a long discussion of the details and flexible nature of fair use. Even knowing about my “scaring people” problem, I was kind of shocked that, when I asked “Is this fair use?”, the whole group answered back firmly, “No.”

Reproducing an image like this would of course not always be a fair use, but the situation described on the slide is certainly not a slam-dunk, easy, clear, 100% “no way”. Yet almost everyone in that room was pretty sure it was not fair use. Here was my fear problem demonstrated boldly (and in a distressingly large percentage of attendees.)

Not quite sure where it’d take me, I asked the group to walk through the four statutory fair use factors. What’s the purpose? (Educational, non-profit, possibly commentary, they answered.) What’s the nature of the copyrighted work? (Published, mostly factual, they answered.) What amount is being used? (Not much, they answered, just a small part of the book. I pointed out that it was all of the image…) What effect would this use have on the market? (None, they answered. I pointed out that if the rightsholder was willing to sell a license for the use, there might, in fact, be some market harm.) By the end of this quick exchange, I was pleased that the group seemed to have backed away from that initial fear-based response. In fact, they may have moved a little too far away – they stampeded kind of quickly towards “totally obviously fair use!” (Fair use is never totally obvious.)

On reflection, I think one of the biggest pieces of my “scaring people” problem may just be a too-fast transition from the general principles to specific application. We went from “here are the things one must think about in relation to fair use questions” directly to “do you think this is a fair use?” When you’ve only just begun learning about fair use, there are JUST SO MANY THINGS TO THINK ABOUT that even for the very smart, analytical, clear-eyed folks I often work with at the University, it’s overwhelming to try to apply them independently right off the bat.

Taking a moment to stop along the way at “Here’s a fair use question; let’s think it through together” seems to be a really good tool for defusing the fear and sense of constraint. Tried a guided analysis process in a smaller group workshop today, and already the follow-up evaluations seem to show fewer participants feeling overwhelmed and/or confused after they leave. I don’t think it’s completely solved the problem – the uncertainty inherent in fair use just is kind of scary, especially when you’re new at this stuff. But I’m glad to have accidentally uncovered another tool for my fear-defusing toolbox.

Fall Copyright workshops up!

The slate of copyright workshops from the University of Minnesota Libraries is (finally) up, and available for registration. Changed the names around a bit from last semester, and added a new workshop specifically on copyright issues in online teaching.

We’ll be adding a few online-only workshop sessions a little later in the semester for folks at the more remote campuses. If you’re not affiliated with the U of MN, but would like to attend one of the online sessions just to listen in, contact me via email. I’ll open reg as space is available, and will give preference to librarians looking to develop their own copyright knowledge (or teaching).

Here’s the schedule!

Can I Use That? Dealing with Copyright in Everyday Life (Grad students, Staff, others)

Do you remix, re-use, review, quote, criticize, parodize? Copyright
presents some big challenges in all of those situations! We’ll learn 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 grad students, staff, and interested others.

Mon, 10/31/2011 – 1:00pm – 3:00pm
Location: 314 Walter Library

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

Can I Use That?: Dealing with Copyright in Everyday Life (Faculty, Other Scholarly Researchers)

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.

Wed, 10/05/2011 – 10:30am – 12:30pm
Location: 314 Walter Library

Thu, 11/03/2011 – 1:00pm – 3:00pm
Location: Magrath Library Instruction Room (Room 81)

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

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.


Tue, 10/18/2011 – 2:00pm – 4:00pm
Location: S30A Wilson Library

Wed, 11/16/2011 – 1:00pm – 3:00pm
Location: 314 Walter Library

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

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. RCR continuing education credits applied for, pending approval.

Thu, 09/29/2011 – 10:00am – 12:00pm
Location: S30A Wilson Library

Tue, 10/11/2011 – 2:30pm – 4:30pm
Location: Magrath Library Instruction Room (Room 81)

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

JSTOR opens access to some collections; notes this is(n’t) in response to Swartz case

JSTOR announced yesterday that they are opening access to a portion of their older holdings, free for use by the entire world. They noted this was part of a larger effort to make their resources more available to researchers unaffiliated with institutions that have JSTOR access.

They also noted that this was (or wasn’t?) in response to the highly publicized downloading by activist Aaron Swartz that led to his arrest & arraignment on computer & wire fraud charges earlier this summer. In a public letter, the JSTOR Managing Director, Laura Brown, stated that they had plans to release this content prior to the Swartz case, but that “it would be inaccurate to say that these events have had no impact on our planning.” She is not particularly clear what impact the Swartz case actually did have on their planning, noting that they “considered whether to delay or accelerate this action, largely out of
concern that people might draw incorrect conclusions about our
motivations.” I’m not sure what incorrect conclusions people might draw, or how the timing of the release would affect the correctness of those conclusions, but I’m always happy to hear of more resources being available to more people!

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