Confessions of a Mad Librarian

The lifting of the gag order earlier this month in connection with an ACLU lawsuit regarding the USA PATRIOT Act has been put on hold by a federal appeals court.

2nd Circuit ruling keeps gag on librarians

HARTFORD, Conn. — A federal appeals court has put a hold on a Connecticut judge's ruling that had lifted a gag order on Connecticut librarians who received an FBI demand for records about library patrons under the Patriot Act.

The U.S. 2nd Circuit Court of Appeals in New York ruled yesterday that a Connecticut federal court injunction ordering disclosure of the identities should be put on hold until it can hear the government's appeal.

Earlier this month, U.S. District Court Judge Janet Hall in New Haven ruled in favor of the American Civil Liberties Union, which argued that the gag order prevented its client, apparently one of several librarians involved, from participating in a debate over whether Congress should reauthorize the Patriot Act.

The Hartford Courant had this quote in a follow-up article about the Appeals Court decision:

In an affidavit unsealed by the court, one of the librarians - his or her identity still masked - stated, "To the best of my knowledge, the existence of the NSL provision and its applicability to libraries is not generally known within the library community. Now that I know about the NSL power, the gag is preventing me from educating my own library ... and other libraries and library associations about the NSL power and the threat it poses to the privacy of library patrons."

Posted by Eli at 11:00 AM | Permalink

University of Michigan has issued a statement from James Hilton, associate provost and interim librarian, reacting to the lawsuit brought against Google yesterday in relation to the library portion of its Google Print program.

"We continue to be enthusiastic about our partnership with Google, and we are confident that this project complies with copyright law. The overarching purpose of copyright law is to promote progress in society. In doing so, it is always a balancing act between the limited rights of the author and the rights of the public.

"It is important to note that we will not be sharing the full text of copyrighted works with the public. The Google library project will point searchers toward the works, and tell them how to buy or borrow a copy, but will not give them the full content of works in copyright. This increased searching capability will benefit authors and publishers. Their works will become available to a much wider audience than has ever been the case in the past, and we believe this will increase sales of their works."

Okay ... fine.well.good.

"This is a tremendously important public policy discussion. In the future, most research and learning is going to take place in a digital world. Material that does not exist in digital form will effectively disappear. We need to decide whether we are going to allow the development of new technology to be used as a tool to restrict the public's access to knowledge, or if we are going to ensure that people can find these works and that they will be preserved for future generations."

And at the third sentence of the preceding paragraph, Mr. Hilton lost me. And as much as I support digitization and online learning, I'd consider sentence #2 to be somewhat debatable (what point in "the future" does he mean? 10-20-50 years from now?). But to infer that anything that isn't digitized will be lost or abandoned to the dregs of scholarship seems over-reaching at best. I heartily approve of efforts to digitize as much as possible, and I support even more attempts to preserve and provide long-term access to born-digital materials. I believe there are many benefits to digitization: opportunities for remote access, easier (in many but not all cases) duplication, faster keyword browsing of full text, among others. But declaiming with certainty the abandonment (or death) of print has not served prognosticators well for the past few decades and I don't think scholarship will be well-served by it now, even for the laudable goals of encouraging digitization.

Posted by Eli at 03:50 PM | Permalink | Comments (3)

From today's New York Times:

Writers Sue Google, Accusing It of Copyright Violation

Three authors filed suit against Google yesterday contending that the company's program to create searchable digital copies of the contents of several university libraries constituted "massive copyright infringement."

...

The plaintiffs, who are seeking class-action status, also include the Authors Guild, a trade group that says it represents more than 8,000 published authors. Listed as plaintiffs in the suit are Daniel Hoffman, a former consultant in residence at the Library of Congress and the author of many volumes of poetry, translation and literary criticism; Betty Miles, an author of children's and young adult fiction; and Herbert Mitgang, the author of a biography of Abraham Lincoln as well as novels and plays. Mr. Mitgang is a former cultural correspondent and editorial writer for The New York Times.

...

Paul Aiken, executive director of the Authors Guild, said the organization did not know whether Google had yet copied any of the works by the plaintiffs. But he noted that they were seeking an injunction against copying and a declaration that the program violates copyright law, as well as damages from any violations so far.

According to the article, all three of the authors have works in UMich's library, which is the member of the Google 5 that has the most expansive policy for digitizing works via the GooglePrint program. UMich does not appear to be a co-defendant in this suit.

The Authors Guild has a press release about the suit up on its website. The Times says that Google maintains that its digitization program is allowed under fair use.

Posted by Eli at 01:05 AM | Permalink | Comments (1)

Tyler Ochoa is a law professor at Santa Clara University who specializes in copyright and other IP-related issues. He gave a lunchtime talk this week to bring interested students up to speed on what happened in the Grokster decision, as well as some of the background that made the case such a big deal by the time it got to the Supreme Court (abbreviated to "S.Ct." for the rest of the post).

It was a really good lecture, and if there's anything factually wrong below, blame my notes rather than Prof. Ochoa's talk:

Tyler Ochoa
P2P file sharing and the Grokster case

9/13/2005 -- 12:00 - 1:00 PM

5 exclusive rights involved in copyright

The exclusive right to reproduce works
The exclusive right to derive new works
The exclusive right to distribute copies of the work to the public
The exclusive right of public performance (except for sound recordings -- there's no right of public performance in the live or analog realm, but there is a right of p.p. for digital media)
The exclusive right of public display of a work

Vicarious liability - out of tort law: if you have the right to control what someone else is doing and if they infringe and you derive some financial benefit from their infringing, you can be liable

Contributory liability - if you know someone is infringing and you give material assistance to the infringement, you can be liable

Sony Betamax: Universal & Disney sued Sony for copyright infringement; Sony's defense - the VCR has "substantial non-infringing uses"; court agreed (in a 5-4 decision)
Napster: tried to use the Sony defense and failed; Napster contributed towards infringing; original injunction to block file names; injunction modified by court to block the files themselves; Napster couldn't figure out how to do this effectively and went under before re-inventing themselves on a subscription-based model.
Grokster/Morpheus/etc.: different in that there's no centralized index (a floating index; if there's a problem, it's endemic to the software, which would make the distribution of the software illegal)

Grokster:
The S.Ct. ducked Sony in the Grokster decision
Bader-Ginsburg concurrence - Sony doesn't apply; non-infringing uses are only anecdotal
Breyer concurrence - Sony can/does apply
Majority opinion - doesn't really emphasize Sony

Grokster tried to concede bad acts in the past but argued that they were clean now and would remain so in the future.

Inducement doctrine

What the court did: look beyond the capabilities of the product to the intent of the producer
3 types of "clear expression" of intent:
1) The companies all wanted to be the next Napster (but what does it mean to want to be the next Napster? to be the new source of illegal filesharing? to be as popular? in some ways, isn't iTunes "the next Napster"?)
2) The companies did not take any steps to prevent infringement (which is very different from "affirmative steps to induce infringement") - very troublesome: may encourage companies to implement flags/filtering/DRM as a CYA move, notwithstanding Footnote 12
3) Problematic business model -- financial incentive to encourage infringement

You don't know if something is infringing until it's litigated

US Code § 108
No liability for selling products (single-use products, according to the Audio Home Recording Act) that allow for personal home recording; does not apply to computer

Posted by Eli at 11:08 AM | Permalink

The San Francisco Bay Guardian has an article about last month's FCC roundtable on orphan works at UC Berkeley's Boalt Hall Law School. And the hero of the piece is the head of photo services for Wal-Mart:

Specifically, [Joe] Lisuzzo and Wal-Mart are pushing the government to change the way it deals with "orphan works," which are described by the US Copyright Office as "copyrighted works whose owners are difficult or even impossible to locate." Orphan works can be literally anything from an old film clip to a line of computer code to a haiku scribbled on the back of a napkin. As the law stands, anyone who wants to reproduce an orphan work or tweak it into some novel creation (à la sound collagists Negativland) has to hunt down the copyright holder for permission or risk getting sued.

At the Aug. 2 hearing, held in a conference room at UC Berkeley's Boalt Hall law school, Lisuzzo encouraged the feds to make it easier for folks to use orphan works. Talk about strange bedfellows: In this particular battle Wal-Mart is on the same side as librarians, intellectuals, and the Electronic Frontier Foundation, an activist group that spends much of its time wrangling with big corporations.

There's no way to gauge how many works have been orphaned, but there's definitely a decent number of people who'd like to use them: About 700 people contacted the US Copyright Office in February and March to ask for revised regulations on orphan works, and you can get a sense of the headaches they're having by checking out the public comments posted on the Copyright Office's Web site (www.copyright.gov/orphan).

Audio and PDF transcripts of the hearing are available.

Posted by Eli at 12:05 AM | Permalink

I was asked via an earlier comment to post information about this upcoming RFID workshop:

NISO and the Texas Center for Digital Knowledge Institute are co-sponsoring the following conference: RFID Technologies: Standards and Integration in the Information Environment on October 25-26, 2005, at the University of North Texas, Denton, Texas.

From the workshop's website:

RFID (Radio Frequency Identification) technology may be a relative newcomer in the Information Industry, but it is well-established in other areas where distribution and inventory control are critical. Ever more sophisticated functionality and new applications characterize this dynamic technology. What can publishers, booksellers, academic and public librarians, and knowledge managers learn from applications in a wide range of industries? What vendor choices are available? What are the growth opportunities for RFID in the information industry? What is the current status of standards and what else is needed? All communities have a stake in identifying new standards that will support continued innovation and interoperability and allow maximum flexibility in developing new applications for both customers and vendors. You are invited to learn and contribute to the discussion at the institute co-sponsored by NISO (National Information Standards Organization) and the Texas Center for Digital Knowledge.

Institute Goals

• Discover the value proposition that justifies the expense of RFID technology and calculate the return on investment.
• Explore the standards needed to maximize the implementation opportunities in the library and book industry.
• Understand the challenges to item level encoding and what practices can safeguard patron privacy.
• Learn about multiple RFID applications in commercial settings to uncover new ideas -- what lessons can be trail blazers? You will also learn about library implementations and applications in circulation, inventory, and collection management.

There's no speaker/participant list on the website, but it looks like there's going to be lots of nitty-gritty discussion of RFID adoption and implementation -- that said, it also looks pro-RFID ... reviewing the goals of the workshop, I wonder if Lee Tien would feel all that comfortable there, but I'm being cynical. If your library system is considering RFID or is in the early part of the process of rolling out RFID tags, this is appears to be a conference that someone from your library system should attend.

Posted by Eli at 02:59 PM | Permalink

Jenna Freedman, who's on the Nominating Committee of ALA Council, has put together a little pitch on why people should consider running for ALA Council or President.

The deadline for nominations has been extended through September 30. Jenna doesn't pull her punches about the less rewarding aspects of councillorship, but she also highlights the important contributions one can make.

Posted by Eli at 11:51 AM | Permalink

Dinosaurs, the devil and orphan works, oh my ...

Posted by Eli at 11:22 PM | Permalink | Comments (1)

One of the most controversial points of the Google digitization project is whether or not Google's argument for fair use would/should prevail if it became a matter for the courts to decide.

Some publishing associations say, "No."

Derek Slater, of A Copyfighter's Musings, says the answer should be, "Yes."

Siva Vaidhyanathan, a media scholar and copyright pundit, also says, "No."

Laura Quiler, a librarian/lawyer/blogger, says, "Yes."

Now, a number of legal experts who specialize in copyright issues for digital media are saying "Yes," according to an article in InternetWeek.

Despite objections from publishers and writers, copyright law appears to be on Google's side, legal experts say. The social value of Google's initiative to digitize library books, including those protected by copyright, will likely weigh heavily in the search engine's favor.

...

Although Google may appear to violate the law by scanning, without permission, entire copies of books protected by copyright, such an act is not illegal if it is considered “fair use” of the material. How a court interprets that doctrine will decide the fate of the company’s ambitious plans, according to lawyers and law professors with knowledge of intellectual property and copyright statues. They say the most important issues for a court would be the character of Google’s activity, its adverse economic impact on the copyright holder, and the amount of material it uses in proportion to the whole and if that is key to the work. Of lesser concern is whether the company makes a reasonable effort to contact copyright holders before copying their books.

“Google would probably win” a court case, says William Fisher, who teaches intellectual property law at Harvard Law School and is the director of the Berkman Center for Internet and Society. “Google is a profit-making venture, that counts against it, but what it is doing is a highly socially valuable activity and that counts highly in its favor.”

Posted by Eli at 12:42 PM | Permalink

The Internet Archive is going to start a special crawl devoted to Hurricane Katrina and post-Katrina websites. Many librarian blogs and mailing lists have shared numerous resources. Which ones would you like to see archived? Feel free to post below for individual or lists of links.

Posted by Eli at 11:59 AM | Permalink

It is by no means the most catastrophic news, but this is sad for more than a few people. From the San Jose Mercury News:

Kepler's, the storied Menlo Park independent bookstore that drew loyal customers from across the Bay Area, abruptly closed Wednesday, leaving book devotees mourning another casualty of the battle with the major book chains.

For half a century, Kepler's kept its place in a tiny coterie of notable Bay Area bookstores where browsing was encouraged, where politics and poetry were cool, and where readers could depend on well-read employees for smart recommendations. Jerry Garcia hung out at the store in the 1960s before the Grateful Dead. So did Joan Baez. And for decades, book lovers could meet Jimmy Carter, Nick Hornby or Kazuo Ishiguro without going to a big city.

To put it in some perspective, there's only the two locations of Books Inc. as major, independent bookstores [edited from earlier]* (the Stanford bookstore is run by the college bookstore firm Follett) in Silicon Valley. There's a bunch of small stores that either have niche markets (mysteries, technical books) or have most of their stock in used books.

Kepler's was a good store. And it was a major anchor to cultural life in the mid-Peninsula area. I was at the 50th anniversary celebration for Kepler's recently and there was a very large, very appreciative crowd spanning 3 generations and more. It was a Bay Area institution.

Also from the article:

The steady stream of visitors who approached the locked doors on Wednesday included Menlo Park public librarian Cathy Smith. "It breaks my heart," she said. She and the other city librarians came to Kepler's on their lunch break. And, of course, it's where she bought books. "I don't know where to go," she said. "I can't imagine where to go."

What Ms. Smith said. Bye, Kepler's. Thanks for all of the books.

* Thanks to Walt Crawford to pointing out the independent status of Books Inc.

Posted by Eli at 09:49 AM | Permalink | Comments (2)