Straight Dope takes on deceptively misdescriptive trademarks

Or Grape-Nuts, anyway.

Noncelebrity false endorsement claim proceeds

Arnold v. Treadwell, 2009 WL 2222928 (E.D. Mich.)

When do you not need to show secondary meaning to gain protection for a personal name under the Lanham Act? When you allege a violation of §1125(a), apparently. Plaintiff is an aspiring fashion model. Defendants run a business specializing in digital photography and run associated websites.

Plaintiff alleged that she agreed to have non-sexually-explicit photos taken by defendants to build her portfolio and advance her career. She alleged that their agreement allowed her full control and approval over any use or distribution of the photos, and that defendants violated that agreement by posting pictures on a pay site it owned and by licensing a magazine of ill repute to run her picture. Don Diva Magazine published the picture in its “Sticky Pages” section, and included the words “Try to Concentrate,” along with plaintiff’s real first name. The photo also showed up inat least one ad for the magazine. (Defendants claim to have a written release, but were unable to produce it for purposes of the summary judgment motion.)

Plaintiff’s aspirations aside, she’s been working as an exotic dancer at a place called Trumps, and “her attempts at modeling have met with little success. She has had no identifiable modeling jobs apart from a single job passing out flyers at an unidentified event.” Still, she’s made efforts to launch a modeling career and made attempts to control her image, including using a false name as an exotic dancer.

Plaintiff moved to strike defendants’ summary judgment motion to the extent that it was based on the First Amendment, on the ground that it was an affirmative defense and had not been included in the answer. The court agreed, based on dicta from other Lanham Act cases, that the First Amendment is an affirmative defense that should be raised in an answer. “The issue of whether the various publications and media that published the plaintiff’s image constitute expressive content so that the heightened standard applied by the Sixth Circuit in Parks should apply require the development of facts that are not generally relevant to a plaintiff’s prima facie case under the Lanham Act.” Here, the plaintiff would be prejudiced by waiving the requirement of Rule 8, “because the plaintiff has been deprived of the opportunity to develop facts that would tend to show that the defendants’ websites were not the type of expressive content contemplated by the Sixth Circuit in Parks that would require Parks’ level of heightened scrutiny.” Query: what facts would tend to show that a magazine isn’t protected by the First Amendment? Is there any credible argument that the magazine is commercial speech, or some other un- or less-protected type of speech? (More on this in a moment.)

The key remaining question was whether the plaintiff had to show that she was a celebrity before she could claim false association or false endorsement under the Lanham Act. Courts have required a plaintiff to show that his/her persona had commercial value, but in most of the cases the court discussed, the plaintiff’s celebrity status was undisputed. Other cases in which celebrity was in play were complicated because the “likeness” at issue was not a photo but some other indicator of identity, and celebrity was key to recognizability.

The court followed Condit v. Star Editorial, Inc., 259 F.Supp.2d 1046 (E.D.Cal.2003), which required a §43(a) plaintiff to have a commercial interest in her name—meaning at least a present intent to commercialize her name--because of the commercial purpose of the Lanham Act. Here, the plaintiff had such a present intent, and thus stated a claim.

Because there was a dispute over the scope of her consent to be associated with defendants—she says she agreed only to allow pictures to be shown on one of their websites, and the pictures were the least risque of the bunch--summary judgment was inappropriate on the issue of false association.

Then the court specifically addressed defendants’ First Amendment arguments, arguing that under the Parks v. LaFace rule, the photos were actionable only if they had no artistic relevance or if they explicitly misled as to endorsement. However, the court held that the defendants hadn’t met their burden of showing that the defense applied: the evidence about whether the allegedly unauthorized website involved “commercial transactions” was disputed. That is, the evidence seemed to show that the website had subscribers who paid fees for access to additional photos, and that defendants held themselves out as a modeling agency.

Okay, but why does that make Parks inapplicable? Does the court think that Outkast did not require people to pay to get copies of its songs? What about the magazine—shouldn’t the analysis have asked whether it was commercial speech? And, oh yeah: commercial transactions are not the same thing as commercial speech, under First Amendment jurisprudence. The only invitation to engage in a commercial transaction at issue seems to be the ad for the magazine (and for obvious reasons, ads for First Amendment-protected speech tend to get treated like the speech itself, as compared to ads for products). Summary judgment denied.

A little leeway here, a little leeway there: this is how the Lanham Act swallows up free speech. I don’t find the defendants’ conduct attractive, assuming the facts are as alleged, but using the Lanham Act instead of contract law to remedy the problem has serious implications for anyone who takes, sells, or publishes photos.

AALL: Unfair Publishing Practice? Who’s to Stop Them?

Superlawlibrarian! (and the Attorney General)

Lucy Ann Rieger, Library Update Inc.: Past experience with Thompson—dealing with a law library that had only clerks, not a librarian; the clerks got invoices and sent them to accounting, which paid. The invoices were confusing—there were multiple subscriptions for the same publication, and invoices were sent for renewals in the same month a new subscription began. Thompson, when called, wouldn’t tell the library its account information, wouldn’t tell it what duplicates it had. The subscription periods were sometimes over 5 years because Thompson would send invoices and credit it to future subscriptions. She asked them for a refund and cancellation of duplicates; initial answer was no until she went to the AALL. This was not just a mistake.

Betsy Stupski, Florida AG’s office and Superlawlibrarian: In 2006, one of her ADAs came to her for a looseleaf on ADA Compliance, from Thompson (no relation to Thomson)—assured her the book would be extremely valuable. Since her office does handle such issues, she agreed to a purchase. Problem arose with renewal: apparently signed up for a renewal plan that included many other titles. Received “HR Question and Answer book” and $163 invoice; sure she hadn’t ordered it. Complained to supervisor, eventually got agreement that she wouldn’t have to ship the book back, they’d UPS it. She was worried about going through the same process in a few weeks; consulted an attorney in the economic crimes division, Tina Furlow.

Problems with publishers: unordered merchandise; order forms made to look like invoices or renewal notices. She was interested in solving the problem on a structural level, rather than one unordered shipment at a time.

Lessons: make waves. Keep fighting. Multiple complaints are more likely to get the AG to act. Formalize your complaints in writing. Be wary when dealing with an unfamiliar publisher—pay close attention to documentation. Use your contacts. Her advantage: she was in the AG’s office! (Strikes me as an example of picking the wrong target; but then, if you have an abusive standard contract, you might forget to modify it for the AG.) Might take some time—received unordered merchandise in 2007, and settlement only happened a year later. Don’t throw out the baby with the bathwater—they did like the ADA Compliance Manual and wanted to continue the relationship with the publisher, but they didn’t want to take everything the publisher wanted to sell.

Tina Furlow, Florida AG’s office: Settlement agreements with major legal publishers. Unordered merchandise is a familiar consumer complaint. Prior investigations of things like “free ringtones” that came with charges to the cellphone bill. Began with one complaint, but many consumers were receiving recurring charges on their bills—an emerging marketing method. Result: agreement with cellphone company not to partner with other companies that advertised free ringtones. Ringtone “subscriptions” were a new twist on an old problem.

Useful for investigation: Betsy and others still had their notes and emails of contacts with the company. Retention is important! Assistant librarian had investigated publisher via website and ordered via phone; didn’t remember anything about additional publications. Renewal was where the problem began. The document says it’s the ADA renewal invoice. HR Question & Answer invoice appears to be a typical invoice as well. The issue was resolved in one sense: the office hadn’t paid. But there was still time and aggravation, and the fear that additional books would show up. Preliminary question: did we reasonably believe that other law libraries, agencies and firms that ordered this publication may have received further publications under the same circumstances? If there was a pattern, was that a problem?

One reason to act: the company was a Florida company. They opened an investigation and issued a subpoena.

Florida law: To send unordered merchandise, there must be a clear and conspicuous notice that it’s a gift with no additional obligation. The invoice had tiny print indicating that future merchandise would be sent on a 30-day trial basis, disclosing the practice of “automatic updating.” So the disclosure was there in reasonably easy-to-understand language, but it was in mouseprint on a place on the invoice the library was unlikely to read. Is this “unordered merchandise”? The FTC calls this a “negative option” plan, which is common in library purchases—consumers have the obligation to reject goods/services; failure to reject is treated as acceptance of offer. The first negative option plans were book and record clubs. 1970s saw so many abuses that the FTC considered an absolute ban, but concluded that there was enough benefit to allow them with strict regulation. (Turns out the FTC is currently seeking public comment on the negative option rule.) Now libraries use subscription services/supplementation plans/continuity plans/automatic renewals/free-to-pay conversion or trial offers.

We know that prenotification negative option is lawful because of the FTC rule, but what about other types of plans? The FTC said in 1998 that continuity plans and others are lawful if, prior to sending goods or service, the vendor clearly and conspicuously discloses all the important terms, including that the consumer agrees that failure to reject goods/services may be treated as acceptance. Consumers must agree to the terms and conditions.

Clear and conspicuous: are the terms readily noticeable and reasonably understandable? Told a funny war story about opposing counsel asking consumer to read the contract in a different case; consumer says ‘I can see the words, but I can’t read them,’ and counsel asks ‘Do you have a magnifying glass?’ Hint: that’s not clear and conspicuous. FTC guidelines: placement, proximity, presentation (including being free of distractions) and prominence. Prechecked box with hyperlink to terms & conditions is probably not meaningful acceptance. 1976-2000: FTC had specific guides for legal publishers; rescinded because FTC concluded that general principles of unfair practices should apply, and there was no reason to single out legal publishing.

Brief checklist: was an order placed for this specific publication/service? Is it part of a negative option plan? Is it a gift? If the publisher says it’s negative option, did you agree? Were the terms and conditions disclosed, clearly and conspicuously? If yes, it’s lawful, but if not, it could well be unordered merchandise.

Thompson claimed to comply with all applicable laws, but said it wanted to be clearer and serve customers better, so worked together to improve the negative option.

After this, the AG looked at other legal publishing agreements, like Matthew Bender’s. They also needed disclosure improvements. Agreed to put modifications in place nationwide, including monitoring and compliance reporting requirements. Thompson agreed to offer refunds nationwide. Matthew Bender & Lexis-Nexis limited their refunds to Florida consumers. The companies also paid attorneys’ fees and costs to the AG.

New ads: much more prominent disclosures, and clear option to enroll in automatic shipment if you affirmatively check a box.

If you’re concerned, talk to people in the company—not the sales reps, who may not be the right people. Publishers are often eager to improve customer relationships. You can also file complaints with the FTC online and with state AGs.

Rieger: when you get something, don’t just send it back. Keep a record, tell others, talk to AALL, give AALL’s guide to fair practices in legal publishing to staff, especially staff who open the mail/pay the invoices. Complain to your state AG. We are drafting comments to the FTC as part of its request for comments on negative option.

Q: What about foreign vendors? One of our vendors sends multiple books, and the cost of returning it is so large it’s cheaper just to pay; we say don’t send these but they keep doing it.

Furlow: If these practices are violations of law, they violate the law in your state. Might want to get legal advice about whether you can just keep the publications. Practically, may be hard to enforce, but maybe the AG can help.

Q: If an organization takes a stance against a particular vendor, is there a risk of an illegal boycott?

Furlow: that’s not her area—counsel needs to answer that.

Stupski: There’s nothing stopping us from using informal channels, asking each other about our experiences.

Rieger: Right now we have a great opportunity to contact the FTC in the course of its review of the negative option rule, and the AALL is behind that.

Comment from someone working on comments to the FTC: We do think the rule should be extended to programs related to negative option programs. Question: do we want to put a deadline on these programs? If your predecessor agreed to a plan ten years ago, you may no longer have a record of the agreement—so does there need to be an expiration date after which at least the terms have to be clearly and conspicuously agreed to by the consumer? We also need to investigate what constitutes agreement by the consumer.

AALL: We Don’t Need Copyright to Put an Article on Our Network, Do We?

Steven Melamut, UNC-Chapel Hill Law Library: 1960s, libraries began to acquire photocopiers: brought out a great change in reserve policies. Professors would get back their photocopies at the end of a term; nobody kept records or checked to make sure it was the same photocopy (as opposed to what a student had made). There were guidelines that circulated, but they were very restrictive and not well known or followed.

Fair use: §107 specifically mentions “multiple copies for classroom use,” but it’s not clear whether that applies to reserves—students use them for classroom use. Fair use factors: it’s important to start with a copy you own, not an ILL copy. Market effect is also important: how difficult would it be to get a license? OTOH, if the material is out of print/the owner is difficult to find, you’re reasonably safe. Spontaneous one-time use is also reasonably safe. Commercial use/entertainment is not as easy to defend.

Course pack cases: clearly need permissions. But the Kinko’s and Princeton v. Michigan Document Servs. case were both against for-profit institutions. At the same time, Princeton presumed that there was an entitlement to fees.

E-reserves: began as homegrown system; people didn’t bother to password-protect, and if Google had existed they would have been out in the clear. Publishers feared that no one would ever buy the paper materials again. But for libraries, it was great: get out of the painful photocopy and file folder business. Remote access: students didn’t have to physically come to the library. Clear that we now need to restrict access, but unclear to what degree: limits to university sufficient, or does it have to be limited to class? Can you do it by class number, or do you have to limit it to individual student IDs?

One example: first-year med students are all required to take the same class, rotating through in five sections. If you buy permissions, are you buying it for the whole class, or do you have to buy it five times? Are you responsible if one student decides to download the material and put it up on his own website?

CONFU guidelines, 1996, tried to come up with e-reserves guidelines; came to a stalemate. Probably a good statement: they’re probably fairer than most others, but not official. ALA has a statement on e-reserves: says you should maintain fair use. Important caveat: most online materials are governed by licenses, not copyright, and licenses always trump copyright. If we are diligent about negotiating, we can write in a statement allowing use in e-reserves through content management systems. In the sciences, some licenses are coming out with that written in, but you have to look at the licenses. And keep in mind: some materials are governed by different laws: photographs/slides; music—go to the music library associations for guidelines; video—you are dealing with the DMCA and face DRM issues.

Ass’n of American Publishers has threatened litigation against Cornell, others. Came back with joint guidelines. Equated e-reserves and content management systems with coursepacks, so required permissions, but acknowledged the existence of fair use. Hofstra, Marquette, Syracuse also adopted policies under litigation threat—all private schools, not public.

Georgia State: sued in 2008 regarding electronic coursepacks, course management systems, electronic reserves. Feb. 2009: Georgia State changed policy.

CCC: claim to be a convenient means of getting permission. But extremely expensive, and didn’t cover all materials UNC uses. Even counting the person whose job it is to get permissions, it was cheaper for UNC to continue getting permission itself. Also CCC charges for things that are fair use, at least the first time they’re used.

Publishers want to protect permission income, and want permission for electronic use; libraries want to protect rights under copyright—if you don’t use fair use rights, they’ll disappear, and our budgets don’t allow us to be cavalier about paying for permission; and then faculty want to distribute the materials and feel that any educational use is fair use. You don’t know for sure what fair use is until after you’ve used the material, been sued, and gone to court. Fair use policies are determined by risk aversion.

Advice: when you’re already paying for access, putting links to Westlaw etc. is a good idea. But also use fair use so you don’t lose fair use. Tell students not to repost materials. Keep password restrictions. Remember e-reserves and fair use when negotiating contracts. At the end of the semester, terminate access.

Publishers think there’s no difference between e-reserves and course management software; the difference is library v. faculty control. He hears that faculty are not sending e-reserves in, but using course management software to post.

Kevin Smith, Scholarly Communications Office, Duke: he deals with copyright in relation to faculty and graduate students at Duke.

CMS allow faculty to create links or to upload readings and other content directly. Many readings are now offered through CMS, as well as video, music, and slides. Potential for many copyright issues due to lack of awareness, or self-help—faculty may not be happy with library’s rules. This can create liability for individual faculty members and the institution. It’s an issue of attitude.

Four responses: (1) all educational uses are fair use; (2) reserve policies are too restrictive; (3) I wrote it--it’s mine; (4) the perfectly logical one: if I can show it in class, I can show it on Blackboard. There is a sense in which the rules for transmissions were meant to mirror the classroom experience, but it’s not as simple as that would have you believe. Different rules regarding the amount of audiovisual material.

Georga State: Duke was also threatened in 2007. Three publishers challenged the use of e-reserves and course management systems. Publishers are asking for injunction, not damages. Georgia State argued that its new policy made prior acts irrelevant and sought a protective order from the court. They got the protective order: the amount of material already revealed in discovery regarding older practices was already sufficient to make the argument that the new policy isn’t all that different from the old. The new policy is quite assertive about fair use. A policy that was 100 pages long is now about 8. Partly because they now recognize that in the current situation their faculty have to understand at least the basics of fair use. In the past the library has taken care of this stuff, but CMS has changed the landscape.

So, institutional decisions: how much do you try to explain the four factors? How much do you apply it to specific uses or tech? Do you give a checklist (fair use checklist making the rounds)? Do you specifically mention spontaneity/single-time use? What kind of assistance do you offer? Recommend linking to licensed databases; offer help. These are decisions about how aggressive an institution wants to be about fair use.

Fair use checklist: He thinks it’s a bad document, creating the impression that fair use is mechanical. But fair use isn’t that way, and the checklist also very easy to manipulate. Note that a version appears on the CCC website. And he also thinks it’s virtually a required document, because decisions about what goes into a CMS is being made by RAs or administrative staff—nonattorneys, nonexperts. They have to make quick decisions about a huge pile of stuff. They desperately need help, and the checklist, for all its faults, helps them make a reasoned decision. And the value of a reasoned decision for a nonprofit higher education decision is that it provides a real benefit in a fair use analysis--§504(c)(2), which limits remedies, remitting statutory damages, for a wrong but good-faith fair use decision. Real reduction of risk!

How can the library help?

First, offer assistance creating links to licensing content: not necessarily obvious to faculty, who may not know about journal availability, URL persistence, and authentication for offcampus logins. Remind faculty that they may not own their own materials, and that they shouldn’t sign such agreements in the future! Provide a central service for CMS evaluation—let the library help even when CMS is used. We can make folks aware that we can help with decisions. At Duke, we try to encourage use of e-reserves because we have mechanisms in place to make a fair use decision and buy permissions when necessary.

CCC: First possibility, individual licenses. Not clear whether faculty will do this work. Second, Annual Campus License: covers e-reserves, coursepacks, faculty CMS, but not ILL. Not all publishers using CCC participate in the annual campus license, meaning that transactional permissions are still needed.

Music and video: implicates fair use, the TEACH Act, and the DMCA. Faculty ask to stream video through a course site and save class time. TEACH Act applies to distance education and to hybrid courses. Transmissions have to be an integral part of a class that is a regular part of systematic, mediated instruction. Less flexible than face-to-face exception, but most classes meet that requirement.

Big issue: portions. Can transmit all of a non-dramatic musical or literal performance. (All of a symphony, but not all of an opera.) Reasonable and limited portions of films or dramatic musical/literary performances. Real stumbling block (note interaction with DMCA: how is one to get that portion to show a relevant film clip?) Displays comparable to face-to-face teaching—which is probably anything you’d really want to do.

Other TEACH Act requirements (no litigation yet): restricted access; notice to users, copyright policy and educational efforts; reasonable TPMs to prevent student retention or downstream copying—his suggestions: streaming music or video; possibly thumbnail or low-resolution images; possibly disabled right-click to make it harder for students to download—might strengthen the fair use argument regarding e-reserves.

Fair use is more flexible than the TEACH Act, but the TEACH Act probably allows larger portions; fair use probably doesn’t allow you to use a whole film in most cases. Note that anti-circumvention still applies. Analog can be converted to digital for TEACH purposes. Permission can be difficult to obtain, though SWANK is beginning to license streaming films through CMS (it’s rather expensive).

Is there a point at which we need to stop thinking of film as “extra” to classes and start thinking of it as central? If the faculty member thinks the film is central to the class, sometimes the answer might be that the students should buy the film just like they buy the book.

Linda Gray, Nellson Mullins Riley & Scarborough, LLP

Fair use in the private law library. Attorneys want information so fast, coming out of law school where materials have been immediately available; they do not think about copyright issues. A partner is not going to spend time downloading an ANSI standard onto his desktop for use; it’s not practical. If the librarian got a digital copy, the attorney wants the digital copy sent to him/her, regardless of whether the purchase authorized presence on multiple computers. Observation: librarians have gotten more concerned about copyright compliance over the course of her career.

Special issues for private law librarians: Their use will likely be considered commercial, even if it’s only intermediate, following the Texaco case. Puts us in a bad situation, as the AALL guidelines warn.

Gray said, wrongly, that printing out a purchased digital copy licensed for one hard drive only and scanning it for an attorney’s use was circumvention. (I think she may have meant that it was an infringement, which is a much better argument, but she was talking about the DMCA.)

Very dangerous to sent out tables of contents and solicit attorneys to ask for copies of what they want, unless you have an agreement with the publisher—you can send out the tables of contents, just don’t do more than that.

To keep ourselves safe, we need to make sure we’re making only a legitimate number of copies and retaining copyright notice. She also copies the copyright agreement that comes with an article and sends that along with the article itself to the attorney who requested it.

CCC: Is expensive, and not comprehensive. Has heard that one publisher tries to write its licensing agreement with clients such that they can’t use the CCC, even though that publisher gets royalties from the CCC; that’s wrong.

Very few private firms have staff to get permissions. Not an option for most of us.

NYT on Muscle Milk and others

This story is chock full of great advertising and trademark law puzzles: when is milk not milk? If "soy milk" isn't deceptive, can "muscle milk" be? If Muscle Milk is a legitimate trademark, can the company oppose other trademarks using "Milk"?

Notably, Nestle brought a complaint against Muscle Milk using NAD and is petitioning to cancel the trademark, but didn't file a Lanham Act suit. My best guess: worried about standing, even though Muscle Milk is now available in the refrigerated section near the chocolate milk.

Weirdest paragraph:

CytoSport countered that it had never “marketed Muscle Milk products as flavored dairy milk,” adding that, rather, it is modeled after another milk entirely. “CytoSport’s marketing and advertising materials have made it clear — over the more than 10 years that Muscle Milk has been sold — that Muscle Milk products are high-protein nutrition products designed after one of nature’s most balanced foods: human mother’s milk.”

I understand the differences between human and cow milk--in this culture, discussion of same is very hard for mothers to avoid--and yet "another milk entirely" seems off to me.

So, what do reasonable consumers think "milk" is in this context? What's the relevance of the FDA-required label that the product contains ingredients derived from milk, even though it's not considered dairy because it's only got whey in it?

Google Books: Equal access to knowledge

The Institute of Intellectual Property and Social Justice at Howard University School of Law and Google

Equalizing Access to Knowledge

Keynote Address: David Drummond, Senior Vice President, Corporate Development and Chief Legal Officer, Google Inc.

Many underserved communities exist in America: minority groups, people with visual impairments, smaller educational institutions—historically black colleges have endowments 1/3 average. Education spending and outcomes are disproportionate for black and Hispanic students; visually impaired don’t have access to the same textbooks as other students. We are an unprecedented opportunity to increase access for everybody. Remove physical obstacles to acquiring knowledge; level the playing field.

Google’s founders worked on a digital library project at Stanford; always wanted to bring libraries into the digital world. When he showed up to work at Google, they told him they wanted to digitize the world’s books; he was a bit daunted. They figured out the logistical/technical challenges, and they felt they could navigate the fair use challenges.

Google Book Search: search across books like you search across the internet. We’ve scanned 10 million books and are just getting started. We have books in most of the languages Google is in; work directly with publishers. 1.5 million are public domain books. Old but valuable. The Library Project: a couple partner libraries include in-copyright books: scanned and indexed, but only show snippet. About 20% of books in these libraries are public domain, 75% out of print, and 5% in-copyright and in-print.

Settlement (for a big collection of settlement-related documents, check out James Grimmelmann’s Public Index): Allows collective license from rightsholders. Better than snippet view, plus free access for US libraries, plus new revenue stream reviving the commercial market for rightsholders. This settlement will also unlock millions of titles for the visually impaired, allowing text-to-speech and other techniques by libraries.

Panel Discussion:

Lateef Mtima, Howard Law: IP and social justice issues intertwine. Constitution starts with a social utility purpose: promoting progress. This is accomplished with rights to authors and rights to the public. Tech has pushed us to focus on the social utility of the exclusive rights, given the potential of new uses. Recall that the spread of player pianos and then record players increased access to music past those who’d been able to afford actual pianos and trained piano players before. So we need to link the digital divide with the purposes of the copyright law.

Wade Henderson, Leadership Conference on Civil Rights (LCCR: Voting rights and education were at the core of the civil rights movement. The last frontier: access to quality education and elimination of poverty. Education is the great equalizer. Thus he celebrates the Google settlement. People mired in poverty don’t have access to information, and we won’t get constitutional change targeting public education in his lifetime. Until we restructure education, we won’t succeed; this project is part of democratizing knowledge to create equality for people where they live today.

Civil rights 2.0: take this information and put it into a broader regime of support—this is a tool, not an answer. Incredibly valuable tool, though.

Charles Brown, Esq., Advisor to the President of the National Federation of the Blind: Incredibly excited by the settlement: the promise of approaching a level of equal access to information that has only been dreamed of a generation ago. Equality of opportunity has been a key theme among the blind. Settlement will change the playing field forever for blind people and others with print disabilities; much of the structure is embodied in the settlement. We hope it gets approved.

As with any revolution, this doesn’t occur in a vacuum. By using screen readers and other access tech, the blind can largely get our hands on digitized text material, but we’re too often artificially blocked from doing so. Incredibly frustrating to encounter an ebook seller that will allow us to buy a digitized book and then block digital speech. We recognize and support IP rights. They must be allowed to profit from creativity. As blind citizens, we must also be allowed to enjoy our property rights. Too often, tech features are available only visually, such as through only poorly constructed websites and visual touchscreens. The law requires equal access, but the concept is lacking in actual practice, forcing us into costly litigation—and institutions, including universities, into costly retrofitting. It’s cheaper to build accessibility into the design than to squeeze it in later. Blind citizens will not allow themselves to be thought of as a squeezed-in afterthought. Google and cooperating libraries are taking the right approach.

Brent Wilkes, League of United Latin American Citizens: LULAC has historically been involved in education—created the predecessor to Head Start. Google Book Search will provide equal access to all Americans who have internet access to books that only elite universities used to have. Especially important to underserved communities who have had difficulty getting access to relevant content, content in other languages, etc. Community colleges: about half of all Latino college students go to community college. Forecast: increasing numbers of Latino students; we can’t sustain high high school dropout rates. The Google project provides some equalization of the educational experience. Scanning UT-Austin’s Benson Latin American collection: most students can’t do that, but that content is very relevant to the Latin experience in the US, which isn’t very well documented elsewhere. Eva Longoria can trace her family back 10 generations; lived on the same land grant under 5 different flags; but her history was never readily accessible—Google may help this. Also scanning Spanish works in Spanish universities, in the US and Latin America. Those books aren’t in B. Dalton or even major libraries. A great equalizer for students learning English who need inspiration in their native language.

LULAC has created 53 tech centers across the US for students—students can do their homework. We value any tool helping students with research projects, homework, college application—but LULAC is not a library, doesn’t have a book collection. Google Book Search will help students a lot, making the community tech center more useful as a model.

We are also privacy advocates, and believe it’s important that Google pay attention to privacy issues. We don’t want to see tracking based on reading habits.

Rhea Ballard-Thrower, Howard Law Library: Some believe that Book Search is the death of the book and the end of the world. She believes that the project makes the book better. The laws of library science: books should be used, every reader should have a book, every book should have a reader, it should be easy to access books, and libraries are changing and dynamic. These principles still apply here. We used to be trained to protect books from people.

Now we can protect the originals, but still give access to the content. Scanning satisfies the “books should be used” principle. Historically only the rich had access to the most books; the idea that a student can read the same book whether in an expensive private school or an underfunded public school is amazing. What about “every book should have a reader”? There are some books out there only appreciated by the author and his mother. But search means if you’re that third person, you can find it. Ease of access: libraries now IM people and do everything they can to enable access—ease increases knowledge.

As for change: this is where librarians are sensitive. People sit at home instead of going to the library, and librarians get nervous: will anyone come see us? But there are three essential parts to the library: the collection, the users, and the staff. And they are all always changing. The collection has changed a bunch. Our users have totally changed—general literacy is a change, historically; users now come in with their own abilities to locate information. What made libraries important was not being repositories—a warehouse is not a library. The people who provide the service are key, regardless of whether it’s face-to-face or via IM. Especially with snippets, people will be directed to the library via Worldcat.

Q from Steve Jamar: there is a privacy issue. Also, how much access will there really be given the dedicated terminal issue? Are people really going to leave their homes/offices to use this?

Henderson: Access can’t adequately be achieved through a library system, no matter how good it is. Digital divide is one problem that needs to be addressed; won’t come through Book Search per se, but this will increase pressure to improve access. Google will have to address the issue, going beyond the initial concept.

Drummond: Access is more than terminals. Remember, 20% of the book is a lot; we also expect to have purchase models, including purchase of parts of a book. There’s also an institutional subscription piece: we can license the entirety of works to institutions. And our pricing provision requires us to take into account interests in getting market return along with interests in broad access, allowing our library partners to hold our feet to the fire. We haven’t built the product yet; trying to get the settlement approved—we’re listening to lots of folks.

Wilkes: Most minority communities have only 30-40% broadband access; more relevant content should spur more demand for access. We are also concerned about privacy—going to a library or tech center can wipe out your trackability. And we encourage Google and others to anonymize information.

Brown: Aside from terminals, we want to get computers into everyone’s hands. Schools and classrooms need to be wired. This is a public policy choice: government needs to do it. Then the school has to provide speech/screen enlargement software. But Google isn’t on the hook for doing that. Internet accessibility should be seen as a public utility.

Let’s not go so crazy regulating Google that they can’t make money. The blind would like to have this product, and we are willing to pay in situations where we are getting value—with Google, we know we’ll be able to use the thing.

Q re orphan works.

Drummond: There are some things being missed in the discussion. Orphan works are usually defined as works that might be in copyright but whose authors can’t be found. Those are not the same as the out-of-print works. In the settlement, for the first time in history, there’s going to be a concerted effort to go find the rightsholders of these materials—a financial incentive for people to come forward. With this new incentive, we think we’ll find that a lot of works aren’t really orphaned. There are some, say pictures, where there’s no attribution and you don’t know where to start; books have an author, a publisher, usually a city—a lot of places to start. We believe the vast majority of books will be claimed over time. Many are likely to be in the public domain as well because of the renewal requirement, and we know that many owners didn’t renew, up to the early 60s. We’re spending a lot of money on a comprehensive family reunification program for books. The Book Rights Registry can license out all claimed books on any terms.

Q from someone working on a digital library of congressional black history for the Congressional Black Caucus: Say more about the terminal v. subscription.

Drummond: there will be both—we think most university and research libraries, and even public libraries, will want to subscribe. On top of that, we’ll provide a free terminal for walk-ins. 20,000 libraries will have the right to do this. (Free access to the product, but not free computer and not free internet access.) Drummond was on a NYPL panel yesterday and there was a lot of talk about how one terminal isn’t enough for a big library, but he cautions that the terminal is free. If they find that there’s way too much demand, or if libraries can’t afford the computers, we can rethink solutions.

Q: There are communities where libraries have closed; they don’t have access at all.

Drummond: we can think about expanding the program to community organizations. We can’t have a free terminal everywhere or else there’s no money in it.

Mtima: Other scholars make the same point: what are we going to do about the digital divide? Some of this should have been addressed earlier, and in different (non-Google) fora. Who is responsible for providing terminals? It would be great if Google rushed in. But others have social activist responsibility to make sure that other sectors of society don’t get off the hook.

Q: Library of Congress has 130 million items. Does Google have a goal to put that amount online?

Drummond: We’d like to digitize them all, and not just in the US. It will take a long time, and we won’t be the only ones doing it.

Q re subscription: will price be set by institution size?

Drummond: based on ways other electronic databases are priced: the number members of university community, etc.

Q: How are non-author, non-publisher interests represented in the settlement (libraries, nonprofits)?

Drummond: library partners have been very important in structuring the settlement. Libraries provide the books; had to revise existing agreements with libraries to settle.

Brown: We were represented!

Q re pricing: for nonsubscription users, will there be a set price range? Will it depend on popularity?

Drummond: Rightsholder has option to set price. Some don’t want to charge anything; some want to charge a premium. Or Google can set the price algorithmically, based on popularity, length, genre, etc. Bands of pricing--$3 up to $29 are the ranges, with median likely to be $6-7.

Victoria Espinel: A lot of concerns about access to IP content, but also concerns about access to IP ownership, particularly for minority communities which are vastly underrepresented. Look at patents: less than 3% owned by minorities. Federal research funding: under 2% goes to historically black colleges/universities with high Hispanic enrollment. Disadvantage to minority communities and to the US as a whole. If access is driver of next generation of creativity, the settlement can be a big step forward, but that’s only one part of a bigger issue of ensuring that all communities have the opportunity to participate equally in the economy.

Wilkes: Google may help minority authors get published; don’t need a physical publisher if you can sell on Google Books. We plan to create lists of recommended books, and link to places to buy or find the books.

Marc Rotenberg: Very interested in privacy as a means of social justice. NAACP v. Alabama protected privacy of membership records in order to protect political association. Many Muslims today are very concerned about access to their library records.

My Q: So are institutions third-party beneficiaries of the settlement, given that the settlement requires attention to access in setting prices?

Drummond: No, but we expect our library partners to be really good advocates for access; they’re passionate about it. (For the record, I find this answer persuasive.)

My other Q (this is not how I asked it, but how I’m trying to think about it): Prodded by my earlier misunderstanding of Google’s plans, I’m really curious about the effect of removing images from big chunks of the corpus. We’re moving to a more visual society, and the stuff that people will be getting from Book Search will be in a significant way much less useful, much less alive, than the physical copies. (Which is not to say that the physical copies are accessible, but that the project may not fully do what it claims. The work you get from Google is not the book.) So how level is that playing field?

Drummond: When you claim a book, you get to say whether or not you own the illustrations. (I must have overlooked this part when I was claiming rights for my grandfather’s books; the interface is not up to Google’s usability standards at present.) If you don’t, they’re not going to be searchable, which is the way Google Books works already now. We are interested in making images more available. For certain books, like children’s books, illustrations are so important that we have special provisions for them.

Brown: Our tech people are working on ways to deal with charts and graphs; we have a library we’d like to preserve, too, so the issue of images is salient to us.

Ballard-Thrower: It’s far from perfect. We have a large archive of African-American works, and right now if you don’t come here you’ll never see it—pictures of black lawyers from the 1860s. The beauty of this project is the partnership. There may be difficulties, but the bigger picture is the wealth of information that right now you need an airplane to see.

Mtima: Legally, Google can only get permission from copyright owners; if the publisher doesn’t own the photo, there’s nothing Google can do. (Yeah, except that that’s exactly what Google does do with respect to, say, image search on the web—it defaults to copying and relies on fair use and opt-out. So for Google to say that it is still defending fair use because it has to rely on fair use to scan the photos, as Macgillivray did in his talk, and then to exclude images from the corpus available to users, is a little disingenuous. And it contributes to the rhetoric of a permission society, as Mtima’s statement illustrates. There is something Google can do; it’s called asserting fair use rights, and everyone is aware that the problems of finding rightsholders/the orphan works problems are greater with respect to visuals, making the fair use argument more compelling even given the settlement with authors & publishers.) Don’t let other IP owners off the hook—Congressional activism is important. (Here we agree.)

There was some further discussion of the need for copyright owners to get paid and the relative uncertainty in the relevant communities about the scope of copyright law.

My other thought: I was struck by the power of the point, made by Siva Vaidhyanathan and others before, that Google is essentially being asked/volunteering to take on the role that should be played by government provision of services. In a privatized age, Google offers too many goodies to ignore. But shouldn’t that trouble us?

Women in open source

Kirrily Roberts gave a great keynote presentation at OSCON, singling out the OTW and a separate project, Dreamwidth, as models for open source done inclusively. Since I'm about as technologically competent as a two-year-old chimp (and less so than a two-year-old human), I'm humbled to be associated with a group doing such great work. The presentation is short and compelling; I recommend it highly.

Inspired brand extension?

Alleged uncanny similarities between Starbucks' new "local" brand extension, 15th Street Coffee & Tea, have gotten some play in TM-land. The story has associated weirdnesses--protesters so odd I can't tell whether they're faux or serious--but I'm much more interested in the sign on the front door: "15th Ave Coffee & Tea--inspired by Starbucks."

Isn't "inspired by" usually used to indicate a different source? Are reasonable consumers likely to think this is or isn't a Starbucks company? If they think it is, does that mean that makers of knockoff perfumes and other fashion items are in trouble--is Starbucks pushing the language in a trademark-expansive direction? If consumers think it isn't Starbucks, are they suffering any harm?

Below: a picture I took of "inspired by" perfumes. Click to see what you think.

Revising ads to avoid sudden falsity

Microsoft alters price comparison ad after Apple drops prices. The article is (1) a reminder that comparative ads have to be up-to-date, (2) a pronouncement of victory for price advertising as a way to decrease prices, and (3) a reminder that altering an ad to avoid falsity often doesn’t take much—here, the ad was simply edited to eliminate the specific price comparison, as it remains true that Apple laptops are pricier than Microsoft laptops. (Insert “you get what you pay for” here.) This also ties into a debate over false advertising regulation in general: now that the specific price information has been removed, what information do consumers get from the ad? If they are likely to infer a much bigger, or much smaller, price difference than actually exists, the welfare effects of removing the untrue comparison are unclear. Except that’s also arguably an unfair framing of the issue: if Microsoft edited the ad to update it with the true price differential, consumers would clearly benefit. In a perfect world, that’s what Microsoft would do. But, since the law doesn’t require it, we should probably compare the information provided by the vague ad with the information provided by the specific-but-wrong ad. How does that come out?

AALL: my panel

I too spoke at the AALL, though to a much smaller audience, in a program called Beyond Copyright? How License Agreeements and Digital Rights Management Pose Challenges to Fair Use and the Provision of Electronic or Media Services

Ryan Overdorf, U Toledo law library: manages media services unit.

A couple of case studies: One vendor agreement said the product couldn’t be used on any open computers (computers that didn’t require a login/password). He wanted to scatter research machines through the library. The vendor OK’d it, but only with a written description of how he was going to monitor product use. Years pass; vendor wants to sell a more expensive purchase. Library agreed, on the condition that use was allowed on all campus computers. Done by oral modification.

Notes: tried to analyze actual use of the database; little or no evidence of use. Not only is the vendor limited by ability to pay, but also by client need. The risk of a database is that if you run out of money, every part is gone forever, not like cancelling a subscription. If the database went away tomorrow, who would care? If the answer is “not many,” you have leverage.

Streaming video: it doesn’t always stream. Faculty ask Media Services to record for them to ensure usability in class. Streaming is used for various reasons—quicker download is one—but copyright owners also consider it a protection measure, involving DRM/DMCA, as well as terms of service. The YouTube ToS, for example, bars copying or download other than expressly permitted by the YT site.

His choice: don’t record streaming video for faculty; try to get it some other way. Not much faculty protest. But, media services doesn’t seek to police copyright generally. Faculty can do anything they want. Media services will contact rightsholders on behalf of faculty.

Balancing risks: Media services doesn’t worry about downloading free browser plugins even if a strict reading of the user agreement could preclude doing it institutionally (for multiple faculty members)—when the vendor doesn’t provide a mechanism for getting site licenses, if the vendors don’t care, then he doesn’t either. Likewise, if there are last-minute discoveries of policy violations, they don’t disrupt events, but do follow up with the relevant faculty member. Takeaway: in his experience, there exists reason to be concerned about copyright threats, but there are also practical constraints on what copyright owners can do.

My talk: I love my librarians, who are excellent at helping me add to the Georgetown IP Teaching Resources database even when I ask them to get me porn.

Fair use is now the background, almost completely obscured by the foreground of licensing and DRM unless libraries insist otherwise. I’ll talk about three things: saving streaming video, lending via the Kindle, and losing books from Google. Copyright, DRM, and licensing interact with all of them.

DRM interacts with licensing—content owners claim that the tech plus the terms of the contract constitute a “technological measure” so that if you, for example, give the password to a database to someone who isn’t entitled to have it, you’re circumventing a technological measure.

So far, courts have been sympathetic to this argument that the contract defines the scope of the technological measure—except, oddly enough, in that precise example: the valid but contractually misused password. There, they see it as not circumvention but ordinary use. It doesn’t circumvent a lock to open it using an actual key. Except of course that analogy is worthless in the digital environment: by definition a key that decrypts an encrypted file is the actual key. You can’t pick a digital lock, you can’t smash it. One of the big difficulties of the DMCA is that tech policy was made and is being interpreted by analogy.

I want to call your attention to the recent DMCA hearings on exemptions to the prohibition on individual or institutional circumvention of access controls. Of relevance to librarians who want to provide faculty and students with video that is reliable, that can be saved and potentially edited.

The Copyright Office really wanted to push screen capture software as a solution—the argument is that screen capture software works by saving screen output, after the technological measures to protect the content have been decrypted and the content has been legitimately accessed. Thus, the Office suggested, if you use screen capture software, there’s no circumvention at all in the situation Ryan discussed, where a faculty member wants to save streaming video.

A couple of things to note about that:

The content owners refused to concede that screen capture wasn’t circumvention.

One potential argument: terms of use say you can’t capture the content, and the terms of use plus the streaming together constitute a technological measure controlling access. When you violate the terms of use, you no longer have legitimate access to the work, so you’re engaging in circumvention. I think this is wrong, the Copyright Office seems to think this is wrong, but risk aversion is a factor in actual decisions.

Separately: what about those terms of service? What are the risks with respect to the contract?

Finally, worth noting that screen capture has significant technological weaknesses—though for streaming video where the image quality is already limited, may not be an insuperable barrier.

Next stage in DRM: taking the work back at the election of the service provider.

The Orwell problem: Relevance to libraries: experimental Kindle lending programs—a way to get more books to more users? When I wrote about this last, it was iPods—buy iPods, load books on them. No limit on number of devices you could have, though libraries tend to be conservative and “fair” about that.

Brigham Young suspended its trial program because it was unclear whether the terms of service allowed library uses of the Kindle—Amazon Customer Service has given vague but generally encouraging answers to library queries. Does customer service have authority to bind Amazon? Terms of service suggest that Kindle content shouldn’t be lent. What would happen if Amazon objected? Suddenly a big investment might become worthless.

Secret of contract law: there is no such thing as a well-written contract. And this uncertainty among libraries about lending Kindles has its echo in the Orwell problem.

Amazon’s terms of service provide that Kindle users get a permanent physical copy. But: even if the contract remains unchanged, as an implementation of Amazon’s promise not to do the same thing again in similar circumstances, it’s hard to see what remedy there is for consumers, who got a refund—the damage they suffered was not economic.

The damage is much more conceptual and much more worrisome: damage to the concept of a book as an artifact distinct from the abstract concept of a “work.” Google’s deputy general counsel claims that the Google settlement has “no Amazon Orwell problem”: you will never lose access to a book you bought or remove a book during the subscription period because of the license granted by the settlement. (That videocast is pretty interesting; Macgillivray is a very good advocate, especially nice on framing the “most favored nations” clause of the Google Books settlement.)

The claim that the Google settlement isn’t subject to the Orwell problem strikes me, however, as wrong in important ways.

First, there is a question about what would happen, either with Amazon or Google, after a successful copyright infringement suit. Historically, recall has been a rare remedy. But a large component of that is difficulty. The other components, which might be considered a vague agglomeration of privacy, property in individual copies, and speech interests in preserving existing books, are not well articulated in the case law and might seem less important once a court has concluded that a particular work is infringing.

So now we have a situation where it is possible for the technology to recall a work out of purchasers’ hands. Or hard drives. Every successful plaintiff will ask for this as a part of the remedy. Should it be granted? Well, the promises of an infringer to third parties—the contract—probably wouldn’t stand as much of a barrier; like an indemnification provision, the contract is the infringer’s problem, and the infringer could refund the money while taking back the book as Amazon has done.

Further favoring a recall, there may be ongoing infringement by individual book owners because of the technicalities of copyright law: merely possessing a physical book, even an infringing book, violates no right of the copyright owner. But if your book is digital, then you may be making new infringing copies—when you add a new device to your account, when you back up your hard drive, and so on.

One court has already required automatic updating of software on users’ computers in response to a finding of infringement. Playmedia v. AOL, 171 F.Supp.2d 1094 (CD Cal 2001). Playmedia sued AOL for including a version of the company's MP3 player in its software. The district court ordered AOL to remove Playmedia's software from its customers' computers through a "live update."

So, if someone were to win an infringement case against Google, the corpus might change overnight, in every library.

But, you may well be thinking, the Google settlement means that even authors who don’t know they have rights are covered, so Google won’t be infringing anyone’s rights.

Not so: Unregistered books, though probably a small and ignorable class. Not that easy to ignore: Photographs and other illustrations. Mostly publishers don’t have the authority to grant Google the right to use photos whose copyright is owned by someone else, even as part of a reproduction of the entire book.

[Important update: Alexander Macgillivray of Google informs me that I have misunderstood the plans for the access model: photos and other "noncovered material" will be scanned, but will not be provided to subscribers. So there's no chance of losing that material, because subscribers will never get it in the first place. So my injunctive relief hypothetical is extremely unlikely to materialize. However, it seems to me that the absence of images is a big deal for the value of the corpus. My guess is Google will have to do this image exclusion wholesale, unless publishers somehow--unlikely, especially with the orphan works--distinguish between images to which they have full rights and images to which they don't. And there are a lot of instance where they don't have full rights, or at least aren't confident enough to license them. Just look at how many Kindle books show up without pictures and, often enough without cover art--and these are relatively recent books! Anyway, I think the absence of images from the settlement is definitely worth talking about.]

Individual components of books like photos are not included in the settlement, and Google can still be sued—this is its argument for why the settlement doesn’t give it any reason to stop being a huge supporter of fair use; its argument in case the photographers sue is still going to be that it’s making a fair use.

The photographers did sue the CCC for licensing other people to copy articles that contained photos to which nobody in the licensing system had the copyright—a court in Massachusetts, improperly in my opinion, dismissed that claim on the ground that the photographers couldn’t prove their photos had been copied under a CCC license. I’m no fan of the CCC: I don’t think you can claim to create a market for licensing rights, promise to give people the rights they need to avoid infringing, and then instead of giving them rights just take their money because you don’t actually have all the rights.

But anyway: the photographers have reason to sue Google. It’s possible that at least some books could be found infringing, and out of the corpus they would go, [here's where I'm wrong] regardless of what the settlement says about the rights of publishers and authors.

This is a risk of the Google settlement that has, I think, been underdiscussed—of course there’s plenty of other aspects to talk about. But I think it’s useful to think about Google and the Kindle together—when the information is out there in the cloud, instead of copies controlled by individual libraries, the book becomes hostage to the work, that abstract concept.

The lesson of the case studies: we are increasingly asking people who know how stuff works to apply external frameworks of contract and law to the obvious capabilities of the tech; the limits we’re supposed to follow don’t correlate with the capabilities. Tech shouldn’t be its own justification, but the balance here has been skewed; we need further application of public policy and library principles.

Q: Why not tell faculty that if there’s any amount of money potentially at stake, tell them to get permission?

Overdorf: It comes down to conscience.

Me: I think that’s a really bad way to think about it. You’d never tell anyone to get permission for a book review or scholarly work, even if they’re quoting extensively. Asking for permission was a huge drag on the documentary filmmakers—expensive and often impossible. So they generated best practices, and now they can get insurance and rely on fair use. The CCC rose because of too much deference (aided by the courts) to the idea that if there could conceivably be money involved, then licensing was the right solution.

Q: What can we do as activists?

A: Discuss best practices openly; libraries seem to be unwilling to make public statements about fair use, even when they’re exercising it, which contributes to a climate of fear. And use the power of the purse: it’s obvious that cuts must be made, and one factor in which products have to go should be which are user-unfriendly. CC licenses explicitly preserve fair use rights; push towards that type of usability in negotiations.

American Association of Law Libraries Annual Meeting, Keynote

Jonathan Zittrain, Harvard

The future of the library (and how to stop it?). His image of the library: a fortress, protecting books against people who might mess them up. Today: a fallout shelter, a place you go to protect stuff against disaster—like emergency rations. Collections become archives. What percentage of a collection sees action over the course of a year? 5% says an audience member. 95% is just in case—you could have a Long Tail room.

But books may not remain the primary medium, though we still have to care for them. More and more reading rooms look like computer clusters, and in many libraries (not necessarily law), they’re redefining themselves as a place to go to get on the internet, which resonates with access to information. People are more online naturally anyway—students have their own laptops. He worries that the library is becoming a piggy bank: a source of income for publishers who previously had to tolerate the first sale doctrine. The AALL site has a wonderful little monograph about first sale.

A PC is a generative device: you can put programs of your choice on it. That’s not as true in the tech environment we’re moving towards. First, move to cloud computing: this practice actually has an early roost in the library, as more and more publishers make their content available in a client/server relationship and the library does not have its own copies. Google Book Search: doesn’t allow you to copy the text of a snippet—capacity defined by the vendor, not by you.

Second, a configuration as good as the cloud: the Kindle. In wireless contact with the Mothership Amazon at nearly all times. (I just discovered, incidentally, that if you only have Kindle for the iPhone, you can’t download the files to your computer for backup as you can when you have a physical Kindle. Curses!) Thus, the recent Orwell incident where Amazon withdrew paid-for books from customers’ Kindles (best post title on this: Amazon deletes your books, has always been at war with Eastasia). You haven’t infringed copyright by possessing this copy—it’s not independently infringing to have an infringing copy, though the vendor has infringed the distribution right. Assume the vendor asked you to destroy this infringing book—very few people, especially librarians, would do so. Because the Kindle is tethered, though, it can get rid of the book.

This is only the beginning of the story: defamation, obscenity/porn—there are many ways that a text can become contraband. What if government data is retroactively decreed sensitive? What if the government wants records of who’s looked at it? The protections for libraries are enshrined in law only in teeny tiny ways. DMCA §1201’s anticircumvention provisions say you can be sued for lockbreaking, except for a incredibly narrow exception applicable to libraries. Nobody in the audience, of course, had ever used this exception; this is an exception matched only in its ridiculousness by the performance rights exception in §110 for playing music at an annual horticultural fair.

So how do we value these items which are rarely used, kept for preservation, but are now being slipped into digital containers where library control is slipping? Turn to “library” as a verb. Library and librarians as sources of knowledge for other people: ask a librarian. But why ask a human when you can Ask Jeeves?

Huge progress in the past ten years: natural-language searching from Westlaw. But a little knowledge is a dangerous thing. People skip the Westlaw training and just put in their question. Creates a weird tension with patrons who walk in and start searching, without knowing anything about search strategy. This tension is only going to get more acute. So much work can be done by disembodied distributed human minds, whether highly compensated, like Innocentive, a company that looks for scientific solutions, or not. Zittrain discussed a distributed “call center” company that has people answer calls from home; Amazon’s Mechanical Turk—tiny rewards, but seductive. Reference can be disaggregated into little atoms. You’re solving a larger problem, but will you know the context or be just a cog in the machine? Spinbox: takes voicemail and turns it into text. Turns out that they simply had humans in an overseas call center transcribe the message.

What about library as adjective? Something that makes a thing more or less a library. “Core purpose”: the essence of an institution. What’s the core purpose of .edu? Protecting IP? Some universities think so. U Texas general counsel in 2001 suggested language for a professor to use at the outset of a class to control students’ use of notes and information learned in the class: “My lectures are protected by state common law and federal copyright law …” Efforts to influence kids in middle school to be favorable to IP protection—one recommendation is to have kids use © on their own coursework. Harvard says: students who sell lecture notes may be required to withdraw from the school. Is this what we want our educational instutions to be?

So, what is the core purpose of libraries? AALL has a mission/vision statement. Key terms: “central to society, fair and equitable, authentic, educate.” How well can these values stand in a new technological zone? What can we farm out to the world at large, to Yahoo! Answers etc.? Maybe not so much! When these are commercialized, there are obvious problems: people on Amazon’s Mechanical Turk are paid to write highly positive reviews for products on Amazon—not authentic and not fair. Spammers reward people for solving CAPTCHAs with porn. If there were a Nobel prize for evil, this would be a strong runner-up in the genius category.

The internet was built on noncommercial principles—sharing at its most basic. Every packet is its own adventure! It finds its way by sharing information. But that makes it vulnerable: one Pakistani ISP shut down YouTube by trying to censor it in Pakistan but doing it badly. This hijacking was corrected by voluntary organizations who gave instructions about reconfiguring the necessary routers. Bad news: your house is on fire and there’s no fire department. Good news: people will appear from nowhere, put out the fire, and disappear without payment or praise. This is a weird configuration that keeps the internet running. The Batsignal goes up and a nonofficial source comes and fixes your problem.

Wikipedia: an idea so profoundly inconceivable that even Jimmy Wales never had it—he wanted to write checks to smart people who’d write reference articles. Wiki: designed to be a place for editing, suggestions, preparation of articles for later expert review. But the wiki was the thing that worked. Now, wikis have their problems—but there are more people who visit the problem page and deal with reported problems than there are more reported problems. Wikipedia is 30 minutes away from disaster, but there are people always on duty against that. But what if there were a particularly compelling Star Trek convention one weekend? Do they leave someone behind to revert vandalism?

What this means: Wikipedia editors are responsible for things like protecting the real name of the Star Wars Kid, based on the consensus that his real name shouldn’t be in the article. Here’s a question: assume you received a link to the Star Wars Kid video, and thought it was funny enough to forward it to your friends. But then you get an authenticated message from the Star Wars Kid asking you to avoid further distribution because the video humiliates him. If your anonymity is protected, will you honor this request? Zittrain thinks that most people will limit distribution. What if Dick Cheney asked you not to disseminate a document because it threatens national security? You make an ethical decision on the merits, not based simply on the fact of the request.

Distributed monitoring of things like censorship: there is an untapped desire to be helpful, to be part of something. Hitchhiking may be dead, but the Craigslist rideshare board is thriving. Is the theory “killers don’t plan ahead”? Unlikely. “Hitchhiker” has unpleasant connotations, but now we have a new context. We’ll try to develop systems to make it keep working even if people try to manipulate it. Couchsurfing.org: one guy’s idea of pairing up people going far away who’d like to sleep on a stranger’s couch for free with people far away who’d like strangers to sleep on their couches for free. Over a million happy couchsurfers so far. A system of volunteer ambassadors.

The Wayback Machine: who hired Brewster Kahle to do this? Nobody! He hired himself, based on an idea: the internet is changing all the time, and someone ought to be taking snapshots. Suppose a library had wanted to do this. It would have gone to the General Counsel, who most likely would have flipped out over the copyright implications. This is a directly accessible corpus, opt-out instead of opt-in. Survives by virtue of how compelling a resource it is. Plus there is opt-out instantly; Zittrain believes that the archive doesn’t delete data but does make it inaccessible at request. Project Guttenberg: guy just starts organizing volunteers to type in public books.

The PACER petition: reasonable request for increased accessibility, produced by online organization. People should go sign this petition! If we don’t do it, dot-com will. Definitive information about a book shouldn’t be run by one single company. There is power of pooling research ability, and even in monopsony: the power of consumers to say that they are organizing and have agreed not to buy products with too much price discrimination or too many limits on what patrons can do.

Google Books: $100 million to scan. That’s not that much, compared to the bailout, right? What uses can be made of the “gold copies” that go back to contributing libraries? The settlement might shake out to allow libraries to make a public resource out of the library copies to counterbalance Google’s power.

Social component: most important help he’s gotten from a library has been face-to-face, someone who knows him and can call him out when he’s gotten something wrong. That relationship is most at risk when we turn our libraries into pneumatic tubes—queries go in, answers come out.

Problems: resource constraints. Risk aversion: worsened by the sense of stewardship—don’t want to risk preservation goals. The perfect should not be the enemy of the good. People are carefully working on perfecting metadata while some teenager invents a thing called del.icio.us and everyone else starts using it.

Q: In China, other values are being pushed in providing services. How do we think about that?

A: Wolfram Alpha: a positivist theory of knowledge; only wants data from curated sources. But what happens when someone asks “what’s the name of that island?” and the answer China wants is X Province while the answer everyone else gives is Taiwan? Are there two answers the search engine should provide, one in China and one elsewhere?

Q: Zittrain has said that the best stuff happens without profit or praise. Are those bad things?

A: No. Profit finds its own energy; we don’t have to worry about that other than to keep it in balance so it doesn’t crowd out or get rid of fairness and other values. He’s also interested in ways of giving praise/attribution wars. There may be plenty who don’t care about recognition, but he doesn’t consider recognition toxic. (Hmm, stated like that I’m now worried about recognition!)