Monday, July 27, 2009

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.

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