Library Juice 3:35 Supplement - September 13, 2000

On Copyright


The Erosion Of Public Protection: Attacks on the concept of Fair Use

by Howard Besser, UCB School of Info Mgmt & Systems

Paper delivered at the Town Hall Meeting on Copyright & Fair Use
College Art Association, Toronto, February 1998

"In the past two years we have seen a major effort aimed at overhauling
intellectual property law. Under the guise of responding to the challenge
posed by the increasing amount of information in digital form, the content
industry (publishers, motion picture studios, music distributors, etc.) has
engaged in a veritable assault on long-standing public interest practices.
In what law professor Pam Samuelson has termed the "Copyright Grab"
(Samuelson), the content industry is exploiting concerns over digitization
and attempting to reshape the law by strengthening protection for
copyrightsholders and weakening public rights to access and use material."

Also by Besser:

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Intellectual Property and Copyright Ethics

Mark Alfino

Department of Philosophy

Gonzaga University

Philosophers have given relatively little attention to the ethical issues
surrounding the nature of intellectual property in spite of the fact that for
the past ten years the public policy debate over "fair use" of copyrighted
materials in higher education has been heating up. This neglect is especially
striking since copyright ethics are at stake in so many aspects of academic
life: the photocopying of materials for classroom use and scholarly work,
access to electronic texts, and the cost and availability of single-source
information technology such as Dialogue, library card catalogues, the Oxford
English Dictionary, and a variety of other print and electronic resources.

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FAIFE/CLM Paper Session: Access to Information: Challenges to Equitable and
Universal Access - Jerusalem, Israel, Tuesday 15 August 2000

Copyright as a Barrier
to the Freedom of Access to Information
and Freedom of Expression

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Section of Mary Minow's Library Law site on Copyright and Libraries

< and Libraries>

Good starting point for the legal, as opposed to the philosophical, issues
relating to copyright.

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ALA Washington Office on Intellectual Property

A good heads-up on a number of specific legislative issues.

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The Real Purpose of Copyright

New laws converted a limited exclusive right into long-term ownership

A Library Journal Editorial, by John Berry III

July 1, 2000

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The Digital Dilemma: Intellectual Property in the Information Age

A free full-text book from The National Academy of Sciences

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Intellectual Property
An Historical Perspective on the Commodification of Information

Written by Darcy Sharman, BA 1997, MLIS 2000

"Critics of the present situation often state that technology has spurred
the commoditising process, and that the principles of information
ownership are created and perpetuated by those who create technological
trends. But is the commodification of information really such a new
process? Is technology really its source? Or does the current situation
have deeper social and political roots? This paper will examine the idea
of information as a commodity from an historical perspective. It will
propose that the role of technological innovations in supporting
commodification is reflective of underlying cultural values that enshrine
market processes, profit orientation, and disposability, rather than an
outside force that the culture reacts against. The role of libraries as a
counteracting force, democratising information access, will also be

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Reinvigorating Fair Use: A Social Economics Approach

Benjamin J. Bates
Associate Professor
Dept. of Broadcasting
University of Tennessee, Knoxville

Paper presented to the Communication Law & Policy division,
International Communication Association annual conference
San Francisco CA, May 1999


Recent efforts and revising and extending copyright law and policy in the
U.S. has seemed to forgotten a fundamental, historic, tenets: that its
goal is to foster social welfare by encouraging both the creation and
dissemination of information, and that information creates social as well
as private value. This paper lays a foundation for, and develops, a social
economics approach which seeks to explicitly reinsert those tenets into
consideration of information policy, specifically one set of policies that
has more explicitly embodied the recognition of the social value of
information dissemination and utilization -- "fair use." Employing a
social economics approach, this paper proposes a new formulation of the
fair use standards which should help to reinvigorate this important (and
increasingly challenged) component of social information policy.

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Chapter 3 of _Information Liberation_ by Brian Martin
Published by Freedom Press

"There is a strong case for opposing intellectual property. Among other
things, it often retards innovation and exploits Third World peoples. Most
of the usual arguments for intellectual property do not hold up under
scrutiny. In particular1 the metaphor of the marketplace of ideas provides
no justification for ownership of ideas. The alternative to intellectual
property is that intellectual products not be owned, as in the case of
everyday language. Strategies against intellectual property include civil
disobedience, promotion of non-owned information, and fostering of a more
co-operative society."

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Read them and weep
Under the guise of protecting copyrights, measures threaten readers
By Simson L. Garfinkel, 05/07/98 - Boston Globe

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Now Is The Time!
Article on some bills that would re-copyright public-domain works

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Slashdot article - Information As A Global Public Good

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Chuck Munson's "Librarians Against Intellectual Property"
Pretty interesting....

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Copy Catfight
How intellectual property laws stifle popular culture, and violate freedom
of speech. About old works being kept in obscurity, and new ones being
silenced. Article by Jesse Walker, Reason magazine.

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Negativland on Intellectual Property

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Dedicated to recycled culture

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Copy Rights ?
Article by John Jacobs on the Subvertigo site
Questions the ethics of copyright, along with the notion of
original authorship
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CounterSpin radio program on copyright

"A few popular music acts have announced lawsuits against something called
Napster, a web service that lets users share music files with one another. It
brings up a number of questions about copyright protection and so-called
"intellectual property," so we'll talk to one person who studies these things.
Siva Vaidhyanathan teaches in the Department of Culture and
Communication at NYU. He'll give us some background on copyright and
free speech."

Find the RealAudio at:

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The Everything2 "node" on copyright
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Applying Copyleft To Non-Software Information

by Michael Stutz

"Normal copyright asserts ownership and identification of the author, as well
as prevents the use of the author's name as author of a distorted version
of the work; it also prevents intentional distortion of the work by others and
prevents destruction of the work. But it also carries other restrictions --
such as restricting the reproduction or modification of a work."

"Copyleft contains the normal copyright statement, asserting ownership and
identification of the author. However, it then gives away some of the other
rights implicit in the normal copyright: it says that not only are you free
to redistribute this work, but you are also free to change the work.  However,
you cannot claim to have written the original work, nor can you claim that
these changes were created by someone else. Finally, all derivative works
must also be placed under these terms."

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Microsoft Patents Ones, Zeroes (The Onion)

In what CEO Bill Gates called "an unfortunate but necessary step to protect
our intellectual property from theft and exploitation by competitors," the
Microsoft Corporation patented the numbers one and zero Monday.


Freelance Authors Regain Copyright Control Through Innovative

SAN FRANCISCO, Calif., July 26

Document Provider to Obtain Permission Before Selling Authors'
Articles Electronically

Historic Legal Settlement Includes Class Notification to Authors

The settlement, believed to be the first class action lawsuit of its kind
in the nation, instructs commercial document delivery services to obtain
permission from authors before their creative works can be sold
electronically via the Internet. The case involved a group of individual
authors who challenged UnCover, an online document delivery service that
sold copyrighted magazine and journal articles over the Internet without
the author's permission. UnCover pursued royalty contracts with many
periodical publishers and paid copyright fees to publishers, but not to
individual authors.
The $7.25 million settlement, preliminarily approved by the federal court
in Oakland, California, requires UnCover to expand its copyright permission
and royalty payment system to include individual authors as well as
publishers, and to obtain certain specified forms of permission before
delivery of such articles. UnCover will now also offer a licensing
agreement with any author who requests it, paying royalties semi-annually.
The settlement fund will come from other settling parties.
The settlement also uniquely initiates a search for thousands of authors,
poets and other academic and creative writers who may have had their works
sold by UnCover in the past. Any authors who retained their copyright in
any article delivered by UnCover between October 22, 1994 and July 12, 2000
may be eligible to participate in the settlement. Anyone whose written work
has been published in a magazine or periodical is strongly encouraged to
visit the special Web site ( ) where a
potential class member can get complete information and submit their claim
for a share of the settlement via the Internet. The Web site will be
launched on Monday, July 31, 2000.
"Selling individual articles electronically without author permission has
been an industry-wide practice. We believe the law does not allow the
practice, and this settlement should go a long way to changing it," said
the authors' attorney John Shuff of the national law firm of Robins,
Kaplan, Miller & Ciresi L.L.P. ( ), known for its broad
experience in complex litigation. "We hope the industry will take notice
and adopt the same permission procedures as UnCover."
The representative plaintiffs, a group of freelance and academic writers,
and poets, were Joan Ryan, Jim Tunney, Arlie Russell Hochschild, Lyn
Hejinian and Ron Silliman.
"The intellectual property owned by authors is no different than music
owned by songwriters or images owned by photographers," said copyright
attorney Dan Reidy of the Law Offices of Daniel A. Reidy of Sausalito,
California, co-counsel with Robins, Kaplan, Miller & Ciresi L.L.P.,
referring to recent legal challenges to the electronic downloading and
distribution of music and photos on CDs or via the Internet. "Authors have
not only regained control of their work, but perhaps more importantly, they
have regained control of their value," said Reidy.  UnCover's founder, Ward
Shaw, said that UnCover has long worked with publishers and rights
organizations such as the Copyright Clearance Center and the National
Writers Union's Publication Rights Clearinghouse to pay copyright for
delivery of the articles researchers and others need. "We are happy to work
with individual authors directly as well," said Shaw. UnCover ( ) maintains a database of approximat!
ely eight million articles-increasing by approximately 5,000 per day --
from more than 17,000 periodicals, and specializes in supplying copies of
articles from often hard-to-find scientific, medical and technical journals
and other publications.
/NOTE TO EDITORS: Copies of the Summary Notice are available upon
request. The settlement Web site, ,
will be launched July 31, 2000/
/CONTACT: Daniel A. Reidy of the Law Offices of Daniel A. Reidy,
415-331-7500, Janette L. Ferguson of Robins, Kaplan, Miller & Ciresi
L.L.P., 415-235-6649, cell 650-579-2709, or Michael Traynor,
415-693-2110, or Robert L. Eisenbach, 415-693-2094, both of Cooley
Godward LLP/


When Copyright Goes Wrong

From advancing knowledge to protecting property

By Mark K. Anderson

EXTRA! May/June, 2000  Vol. 13, No. 3

Think fast: Why do we have copyright?

If you responded that the reason for intellectual property laws is to
protect creators from theft and piracy, then your answer is certainly in
accordance with prevailing media coverage of copyright, trademark, and
patent issues today.  However, according to the Constitution, it's also

In Article I, Section 8, Congress is given power to "secur(e) for limited
times to authors and inventors the exclusive right to their respective
writings and discoveries."  But unlike any other assignation of
legislative rights or duties in the Constitution, the copyright clause
also explicitly lays out why Congress is being granted the power in
question: "To promote the progress of science (i.e. knowledge) and the
useful arts."

That is, the Constitution dictates that government create a body of legal
code that awards temporary monopolies to creators in order to encourage
them to create.  There's now a growing chorus of American voices, though,
who charge that Congress has lost sight of its constitutional mandate, and
is instead so tightening intellectual property restrictions that it
effectively inhibits the progress of science and the useful arts.

"It's always important to remember that coyright is a restriction on free
speech, and it's a constitutionally granted restriction on free speech,"
said Siva Vaidhyanathan, faculty fellow at New York University and author
of the forthcoming book, _Copyrights and Copywrongs: How Corporate
Copyright Threatens Creativity and Free Speech in America_.  "Therefore,
we need to be careful when we play wih copyright, because it can have some
serious effects on public discourse and creativity."

Such recen legislation as the Digital Millenium Copyright Act (1998), the
Sonny Bono Copyright Extension Act (1998) and the No Electronic Theft Act
(1997) have all extended the power and duration of copyright
protections.  (The latter two laws were, it should be noted, upheld by a
federal district court in Washington, D.C. last year.)

The 1998 copyright extension tacked on 20 more years to copyright -
meaning works for hire are given 95 years before hitting the public
domain, while anything copyrighted by an individual continues to belong to
her estate for 70 years after her death.  Whether or not these provisoins
remain within the realm of the constitutionally mandated "limited time"
has been the subject of much debate in recent years.

Now on appeal at the Washington, D.C. Federal Circuit Court is the case of
Eldred v. Reno, in which five plaintiffs have challenged the
constitutionality of the recent copyright extensions.  They charge that,
in ratcheting up the maximum copyright term 11 times from 59 years in 1962
to 95 years in 1998 - that is, 36 years in 36 years - Congress has been
playing a carrot-on-a-stick game with copyrights.  In the words of the
complaint, "While formally, under each of these extensions, the term is
limited, the practice of continually extending copyright terms
retroacively means that Congress, in effect, is granting copyright holders
more than a 'limited term.'"

Ceasing and desisting

The universality of patents, copyrights and trademarks is another area of
concern.  The satirical weekly paper The Onion (3/26/98) was only joking
when it reported that "Microsoft Patents Ones, Zeroes."  But NYU's
Vaidhyanathan is far from alone in his concern that America has veered too
far toward such a technocratic dystopia.

Take the case of the Evolution Control Committee, an Ohio multimedia
group.  Two years ago this trio produced a 7" vinyl record that spoofed
the hyper-violence of the evening news by cuting and pasting together a
series of Dan Rather soundbites and CBS Evening News theme songs into a
montage of death-and-destriction non-sequiturs.  Last January, a lawyer
from CBS sent a cease and desist letter to the ECC's record label, Eerie
Materials, claiming the single ("Rocked By Rape" - the Dan Ratherism that
forms the song's chorus) violated CBS's intellectual property rights.
Although the label potentially had a fighting chance in court - the
Supreme Court ruled in 1994 that parody is a protected form of fair use -
Eerie instead opted to cave in to CBS's demands.  (At press time the ECC
was continuing to offer the work via its website, .)

In 1998, the New York RAcing Association sued equine artist Jeness Cortez
for violating its intellectual property rights by including its Saratoga
racetrack in her paintings, and in a separate action a company that owned
the racehorse Cigar sued her for painting the horse's likeness.  While a
protracted legal battle came out in her favor, the experience was enough
to lead Cortez to quit her profession, citing, as she told the Albany
Times Union (9/1/98), "a lot of legal bellyaches and bills from NYRA and
disdainful treatment."

In the case of Prof. David Stowe of Michigan State University, who sought
to study 1940's cartoons from Down Beat magazine for their sexual and
racial stereotypes, court action was not even needed.  In a move that's
becoming increasingly common in academic circles today, the magazine
refused to grant Stowe permission for fear that his study would make the
publication look bad.  Although Stowe may have ultimately had he law on
his side - the legal definition of "fai use" in the Copyright Act of 1976
allows for scholarsly study of otherwise copyright-protected materials -
the legal costs and headaches were too prohibitive to consider pursuing
such work.

As a final example, las January Norwegian police arrested 16-year-old
programmer Jon Johansen.  He had developed a program to play DVD video
discs on a Linux computer system - which the DVD industry has to date
refused to support.  However, for breaking DVD encryption to create an
"interoperable" platform - a legal procedure under the Digital Millenium
Copyright Act - he was arrested for copyright violation.  U.S. District
Judge Lewis Kaplan granted a preliminary injunction against distributing
his program over the internet.

Favoring the established

A piece of music, a painter's career, a scholar's study, a computer
program.  Each of these losses to society, taken one by one, may not be
considered cause for great public concern.  But as part of an emerging
pattern - and there are hundreds more of these individual cases - they
suggest that despite the anti-piracy rhetoric that frames most media
discussions of intellectual property protections today, the real problem
with copyright is that Congress has forsaken its constitutional charge.

"What happens is our copyright laws, in general, favor the established and
hurt the emerging," Vaidhyanathan said.  "They favor the old guy and hurt
the new guy."

The public has forgotten that America originally was a nation of copyright
pirates - the leaflets and pamphlets that spurred the Revolutionary War
were typically underground publications that violated colonial copyright
provisions.  The fact that America is now a nation that enshrines
copyright zealotry stems in part from the rhetorical shift that has taken
place over the last 100 years.  We no longer speak of copyrights as
government-granted monopolies - which carries a negative, miserly

"In the 20th Century, the rhetoric of copyright is all about property,"
Vaidhyanathan said.  "And when the rhetoric is about property, the
argument ends.  No one can be for theft.  And therfore it's impossible to
have a really intelligent, sensitive and fruitful discussion in public
about what sort of copyright system would be best for us.  Instead you
have very emotional gestures toward ownership, like 'That's my song.'"

Critics of copyright extremism do not argue for elimination of copyrights;
they instead seek a balance of public access vs. private ownership more in
accordance with the Constitution's expressed intentions.

As Paul Rapp, the lawyer who defended Cortz against the New York Racing
Association, put it, "Unless government comes in with a heavy hand and
starts erecting walls, I think this whole thing is going to take place
outside of the courts.  People from time to time will ge thrown in jail
for doing something wacky.  But I've got a feeling that it's going to take
place in an extralegal and virtual realm."

  L I B R A R Y   J U I C E

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