Posted on May 7, 2012 in IP by Comments Off

The “fundamental missions” of the University of California are “teaching, research, and public service.” All three of these missions are based on relationships – between teacher and student, science and progress, and universities and the public. These are symbiotic, rather than authoritarian, relationships, and yet – at least in the case of the teacher and student – Berkeley’s class notes policy gives its professors the sort of powers despots would approve of. There are better ways to manage the rights and responsibilities of professors and students. you looking for this

It might be laughable to think that professors would really use the Berkeley policy to crack down on student notetaking, checking laptops at the door and randomly searching for pens, pencils, or even Sharpies, the WMDs of writing instruments. But why allow even the thought? A reasonable open-access policy can protect the rights of professors, while adhering, in language and in practice, to the mission statement of the University.

Let’s step away from California for a moment and generalize – what should a reasonably “open” policy on student note-taking include? Such a policy should embody a balanced set of permissions (preemptively granted to students) and limited restrictions (which professors may use when necessary), placing neither student nor professor above the other with respect to works like class notes, which are ideally the products of collaboration anyway.

To be fair, the Berkeley policy defaults to a permissive stance towards notetaking, requiring that professors expressly forbid or otherwise restrict notetaking activity during class. This is a start, but in general, students should be entirely free to take notes in whatever non-disruptive manner they choose. Of course, professors shouldn’t be particularly limited in how they define “disruptive.” What follows is a set of guidelines that should underpin a reasonably open note-taking policy:

  • Acknowledge the mission of the institution, and ensure that policies serve and reflect that mission.
  • Restrictions should be limited, and narrowly tailored to specific acts or activities.
    • Professors have the right to encourage a preferred type of classroom atmosphere, but restrictions placed on students’ ability to take notes and otherwise share information should be minimal, and justified by specifically addressing the advantages and disadvantages of any proposed restrictions.
  • Professors and students should engage in dialogue over their respective expectations of, and rights to, privacy.
  • Address copyright matters in an accurate and nuanced manner:
    • Copyright protects expression, not facts or ideas.
    • Fair use must be recognized and accepted, and not limited.
  • Proper attribution is critical in academia; students (and professors, for that matter) should acknowledge the authors of any material they use.
  • There are three general categories of use of materials:
    • Material that is unquestionably fair to use, such as any non-verbatim notes that students may take.
    • Material that “skirts” the boundaries, typically because use may violate someone’s privacy rights or interests.
    • Material that is rightly protected by copyright, such as pre-written notes or Powerpoint presentations that professors may distribute in class.

There are many interests at play in the classroom; Berkeley’s policy emphasizes the interest of the professor in his original works, as well as in ensuring the accuracy of statements attributed to him. These are important considerations, and legitimate reasons for certain restrictions. However, tying the whole educational process up in chains of copyright is not the answer. To do so uses false legalistic authority to obscure a genuine legal quandary that is only partially based in copyright: what is a professor’s legitimate and reasonable expectation of privacy in a classroom, and what are the limits of a given student’s right to free expression? A few years ago, PBS’s Mediashift “embedded” a student reporter into an NYU journalism class, and ended up confronting some of the same issues of privacy and student freedom. William Creeley of the Foundation for Individual Rights in Education also wrote an article about the legal issues involved in that case. Professors who discuss unpublished work in their classes should be aware that their right to privacy in classrooms may be quite diminished. Students should be aware of school policies, particularly at private schools, though few worthwhile institutions would advertise themselves as being against free speech and expression.

Open licensing provides a flexible approach for pre-prepared or unpublished material. Creative Commons allows professors to tailor permissions for their works, ranging from allowing almost anything and everything to be done with their work, including commercial use, to preventing anything other than simply passing along an unaltered work, with proper attribution. When presenting a manuscript or other work not yet published, professors should realize that they are not in a private space, and students should recognize that such materials do implicate copyright law. This sort of scenario – uncommon, difficult to generalize, and intricately tied to law –  should lie at the borders of a class-notes policy, not at its heart.

Posted on May 7, 2012 in IP, open access by Brian RoweComments Off

 

Great opportunity to work on a cutting edge Free Culture project:

The Berkman Center for Internet & Society and the Harvard Law School library seek a full-time Project Manager to advance their joint project, H2O. H2O is an online platform for textbook development and distribution, currently in a pilot stage. H2O is based on the open source model – instead of locking down materials in formalized textbooks, we believe that course books can be free (as in free speech) for everyone to access and, equally important, build upon.

Using H2O, professors can freely pull together materials for a course by selecting cases, editing those cases to the sections that are most relevant, and grouping them into readings. Once the materials are assembled, they can be copied in part or in whole by other interested faculty and then edited further.  H2O has been successfully piloted in Jonathan Zittrain’s 1L Torts class, and will be rolling out further over the coming year.

H2O’s project manager will play a leading role in shepherding H2O into its next phase, which will focus on developing new materials and incorporating additional features, in order to expand the platform beyond its law school roots.

The Project Manager will be housed at the HLS Library and work in close collaboration with lead members of the Library Innovation Lab team; he/she will also work closely with the Berkman Center and current H2O teams.

More information about the position can be found below, and applications must be submitted through the  HLS Human Resources Website at: http://sjobs.brassring.com/1033/asp/tg/cim_jobdetail.asp?partnerID=25240&siteID=5341&AReq=26463BR&ei=ODigT9WvAYHpggetpbDhDQ&usg=AFQjCNGwvgV8sxK_e05G1XAx5aDupTjgiQ

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H2O Project Manager/Technical Lead

Duties & Responsibilities   

A joint project of the Berkman Center for Internet & Society and the Harvard Law School library, H2O is an online platform for textbook development and distribution, currently in a pilot stage.

H2O is currently seeking a full-time Project Manager who will play a leading role in shepherding H2O into its next phase, which will focus on: developing new materials and incorporating additional features, in order to expand the platform beyond its law school roots, and opening up the possibility for wide use and diverse application at Harvard and beyond. This could be an exciting opportunity for a law graduate who wishes to conduct research and contribute to curriculum development before going on to another opportunity, such as a clerkship or fellowship.

The Project Manager will be housed at the HLS Library and work in close collaboration with lead members of the Library Innovation Lab team; he/she will also work closely with the Berkman Center and current H2O teams.

Primary responsibilities will include:

Developing New Materials and Supporting New Courses

The Project Manager will be responsible for overseeing a team of summer interns who will be tasked with developing these materials and liaising with library staff for the collection of cases and other materials. He/she will also be the primary interface with new professors and work with them to develop their materials, syllabi, etc.

Developing and Implementing new technical features.

The Project Manager will work closely with the team and web developers and designers to identify priority areas for development. In addition, he/she will continue to guide our efforts to ensure that H2O software is broadly accessible; continued development and innovation in this arena is a key priority.

In addition to overseeing and guiding these priority efforts, the Project Manager will be generally responsible for performing various research and coordination activities associated with the expansion and development of the H2O platform.   Primary substantive responsibilities will be to: (a) oversee the development of new materials as described above, including interfacing with faculty, coordinating an intern team and working closely with the existing H2O team; (b) drive the development and implementation of Phase 2 technical features and enhancements.

Additionally, the Project Manager will manage the strategic project planning and implementation, including evangelizing the platform with a particular focus on professors who are currently using it, and outreach to those who may consider it in the future; driving fundraising efforts in support of the next phase of the project; and working with the team to develop communications around new developments, with the goal of spreading H2O’s use across diverse courses and disciplines around the University.

This is a term-limited position ending June 30, 2013; continuation contingent upon project status and finding.

Basic Qualifications   

Candidate must have experience in project management, including leading/working across diverse teams.

Additional Qualifications   

Advanced degree in law is strongly preferred.  Experience doing technical, substantive and organizational work for non-governmental or academic organizations strongly preferred, in addition to experience in managing and guiding participating researchers or collaborators.  Technical experience and facility also a plus, in addition to curriculum creation experience.

Candidate must pay great attention to detail and be highly organized.  Ability to work under tight deadlines a must.  Excellent writing, editing and proofreading skills required. Candidate would thrive in dynamic, entrepreneurial, self-motivated environment. Must be a team player, able to work alone and in teams.

About the Berkman Center for Internet & Society:

The Berkman Center for Internet & Society at Harvard University is a research program founded to explore cyberspace, share in its study, and help pioneer its development. Founded in 1997, through a generous gift from Jack N. and Lillian R. Berkman, the Center is home to an ever-growing community of faculty, fellows, staff, and affiliates working on projects that span the broad range of intersections between cyberspace, technology, and society. More information can be found at http://cyber.law.harvard.edu

About the Harvard Library Innovation Laboratory at Harvard Law School:

The Harvard Library Innovation Laboratory implements in software ideas about how libraries can be ever more valuable. The Lab works in three broad areas: thinking in public, building software that demonstrates how libraries can bring yet more value to scholars and researchers, and amplifying our effect by eagerly partnering with other groups with similar passions. More information can be found at http://www.librarylab.law.harvard.edu/

About H2O:

H2O is a Web-based platform for creating, editing, organizing, consuming, and sharing course materials. H2O is based on the open source model, a method of writing software that relies on the strength and skills of a community, rather than a single person, to develop a product. Instead of locking down materials in formalized casebooks, we believe that course books should be “free” (as in free speech) for everyone to access and build upon. Using H2O, professors can freely pull together materials for a course by selecting cases, editing those cases to the sections that are most relevant, and grouping them into readings. Once the materials are assembled, they can be copied in part or in whole by other interested faculty and then edited further.  H2O has been successfully piloted in Professor Jonathan Zittrain’s 1L Torts class, and will be rolling out further over the coming year. More information can be found at http://h2odev.law.harvard.edu/

Posted on April 12, 2012 in IP by Brian RoweComments Off

Our friends over at Public Knowledge are holding World’s Fair Use Day next month:

3rd Annual World’s Fair Use Day

May 4th, 9:00 am – 6:00 pm, Pew Charitable Trusts Conference Center

Join Public Knowledge for our third annual WFUD, a day-long celebration of fair use, creativity, and remix culture!

This year’s WFUD will feature panel discussions on the importance of fair use to journalism, fashion, and poetry.

Former Poet Laureate Robert Pinsky and producer of Everything is a Remix Kirby Ferguson are our fabulous keynote speakers.

Posted on April 9, 2012 in copyright by Brian RoweComments Off

Right to Remix: Appropriation Art in the Digital Age

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Monday, April 9, 2012 @ 4:00 PM

New York Law School, April 9, 2012

185 West Broadway, New York, NY 10013

2nd Floor Events Center, 4:00 – 8:00 p.m.

The Copyright Act protects “original expression,” but what is considered “original”? From Girl Talk to Richard Prince, artists are continually borrowing elements of other works to shape their own. Call it “remix,” “mashup,” “appropriation,” or “transformative”—drawing the line between infringement and fair use can be murky!

Join artists, attorneys, and academics for two panel discussions about the ways in which today’s ever-changing technologies have both facilitated the spread of creative work and sparked new debate over the current state of the Copyright Act.

Approximate Timeline:

      330 – 400  Sign-In/Registration

      400 – 515: Panel I

      515 – 530: Break/Cookies/Coffee

      530 – 645: Panel II

      645 – Onward: Reception/Beer/Wine,etc

*CLE credit will be available. 

Panel I: “No Copyright Infringement Intended:” Attribution and the Influence of Digital Content Exchange on Copyright Law

We see it all the time on YouTube: people communicating through shared content without permissions. Although the Copyright Act attempts to balance culture and commerce through exclusive incentive models and fair use defenses, the law just doesn’t seem to be keeping up with the way end users, developers, and content creators operate in the digital sphere. Attributing the original creator can be difficult when there is such a surplus of information on the web and when much of it is built off of preexisting works. What is original anymore? With the influx of innovative technologies comes new opportunities for artists and creators to earn a living, but it is often on the fringes of traditional copyright laws. This panel will gather artists, technologists, lawyers, and students to discuss how the law operates within these new business models, where the confusion sets in, and what needs to be done moving forward.

Panelists:

  • David Carroll, Director, Design and Technology (M.F.A.) graduate program, School of Art, Media and Technology, Parsons The New School for Design
  • Kirby Ferguson, writer and filmmaker (Everything Is a Remix)
  • Paul Miller a.k.a. DJ Spooky, That Subliminal Kid, electronic and experimental hip hop artist
  • John Brit Payne, intellectual property attorney, Foley & Lardner LLP
  • Maria Popova, cultural commentator and founder, Brain Pickings

Panel II: What is the Message? Transformative Commenting and the Chilling Effects of Judges as Art Critics

Before Cariou v. Prince, most copyright infringement claims associated with appropriated works were settled out of the court. However, after Judge Batts’ ruling in favor of the plaintiff, the debate in the art community over copyright law became heated. The Copyright Act allows a fair use defense for certain transformative works; however, how do the courts decide what constitutes “transformative?” Many judges are looking to the artist to comment on their own works to validate their transformative value; however, this often runs counter to the creative methods and ideas behind the artwork. This begs several questions. What gives a work its meaning? The artist’s intention, the viewer, or the context of the work itself? How should a judge make these decisions about art? Should the “transformative” requirement be taken out of the picture entirely? Is market effect the real issue here when it comes to the art world? This panel will bring together artists, lawyers, professionals, and students to discuss the subjective nature of fair use determinations and their effects on the art community.

Panelists:

  • Michelle Bogre, Associate Professor, School of Art, Media, and Technology, Parsons The New School for Design
  • Daniel Brooks, Partner, Schnader Harrison Segal & Lewis LLP (attorney for plaintiff in Cariou v. Prince)
  • Paddy Johnson, founding editor, Art Fag City
  • David Ross, Art Practice Department Chair, School of Visual Arts
  • Sergio Sarmiento, Artist and Associate Director for Volunteer Lawyers for the Arts in New York City

Please RSVP to Naomi.Allen@nyls.edu.

Posted on March 28, 2012 in IP by Comments Off

TechWorld reports that Graphics Properties Holdings, the post-bankruptcy incarnation of Silicon Graphics, is suing mobile device makers for infringement of a graphics-related patent. Smartphone manufacturers are no strangers to patent lawsuits, of course, but I think that this latest salvo is a good illustration of how the dual regimes of patent law and rent-seeking litigation do nothing but divert resources from actual innovation.

The patent in question, number 8,144,158, describes a “rendering circuit,” the novelty of which appears to lie in the use of floating-point rather than fixed-point data to create images, thereby allowing for more complexity and accuracy in the resulting images.

As an absolute layman in the field of graphics technology, all I want to point out in the actual patent is this: the “Background Art” section of the patent description points out that the advantages of operating with floating-point data are well-known, and that a large part of the reason why floating-point data was not previously used lay in hardware limitations. A good question, then (and one that the manufacturer’s lawyers are probably studying like crazy), is whether a graphics person would think it obvious to use floating-point data in the way the patent describes, given the existence of suitable hardware. If it would have been obvious, then the patent should be invalidated under Section 103 of the Patent Act. If not, then Graphics Properties, under the law, and assuming nothing else is wrong with the patent, is entitled to damages and/or possibly an injunction.

Either way there is a clear policy problem – the fact that low-quality patents enter the system and cause wildly objectionable allocations of resources (either through unjustified licensing fees paid to avoid litigation, or the litigation costs incurred in correcting the patent office’s mistake), or the fact that a company that doesn’t practice or in any way promulgate its invention has rights against a party that does give the public the benefit of the invention. The second problem would be mitigated somewhat, at least morally, if so-called “innocent infringers” were protected – but they aren’t.

Timothy B. Lee points briefly but eloquently to the moral argument against patents, and more importantly, sets that moral argument atop a strong empirical showing that figuring out the patent morass is essentially impossible in certain fields. Graphics Properties might have an enforceable patent – but Apple, Samsung, HTC, and others put the invention in your pocket. Enforcing the patent, if it’s valid, doesn’t promote progress, or magically force companies to innovate more – it removes that invention from the field, it forces practicing companies to spend money to license or attack the patent, or “innovate around” it – or simply stop using that presumably beneficial invention. Mark Lemley posits that innovation occurs despite patent law – because companies simply ignore it. Here, patent law is an agent of stagnation – it allows the ghosts of companies past to haunt companies that actually do things. As a society, we probably should not be empowering ghosts.

Posted on March 21, 2012 in Patent by Comments Off

The Supreme Court’s ruling in Mayo v. Prometheus, is, by several accounts, a horrible precedent for patent law and research-driven industries. Some background for non-patent-lawyers: Mayo addresses the validity of a patent held by Prometheus Labs, Inc., which claimed a “method of optimizing therapeutic efficacy” that essentially works by increasing or decreasing the administered dose of a compound (6-thioguanine, here) based on measured levels of the compound in a person after an initial dose. The Court invalidated Prometheus’ patents, following this reasoning:

[T]he claim simply tells doctors to: (1) measure (somehow) the current level of the relevant metabolite, (2) use particular (unpatenta­ble) laws of nature (which the claim sets forth) to calculate the current toxicity/inefficacy limits, and (3) reconsider the drug dosage in light of the law. These instructions add nothing specific to the laws of nature other than what is well-understood, routine, conventional activity, previously engaged in by those in the field. (page 13 of the opinion)

For more information about the decision, Dennis Crouch has posted an excellent and thorough analysis of the opinion at PatentlyO. On its face, the decision is a clear rejection of broad patent eligibility for claims that apply laws of nature, with particular attention paid to fields associated with medicine. Going deeper, Gene Quinn, of IPWatchdog, has posted a detailed criticism of the decision that argues, in effect, that SCOTUS has applied a false reading of patent law, and in so doing, has “nullified §§102, 103, and 112 [of the Patent Act].” The Mayo ruling may also have implications for the Myriad gene patent litigation – Mr. Crouch at PatentlyO speculates that Myriad (where the Federal Circuit previously ruled that DNA sequences can be patentable subject matter) may be vacated and remanded. Courtenay Brinckerhoff, of Foley & Lardner LLP, notes that “[m]any may view the Court’s decision as upsetting the status quo of patent-eligibility….”

Implicit in the ongoing criticism of the Mayo opinion is the assumption that patents are necessary to the continued vitality of American research industries. This is, at least, arguable – Mark Lemley, in his paper Ignoring Patents, argues that companies in patent-intensive field simply ignore patents. Heidi Williams of MIT, in an excellent working paper, noted that intellectual property (within the empirical context of gene patents) tends to decrease, rather than promote, downstream innovation by researchers.

Many advocates of patent reform point to the “patent thicket” and the inability of companies to efficiently and effectively determine who they may owe royalties to. As a policy issue, health advocates oppose the ability of companies to prevent medical practitioners from using patented treatment methods, or at least charge a premium for their use. The Mayo decision may significantly alter the patent landscape by significantly shrinking the universe of protectable subject matter and imposing stricter review of claims based on natural laws. If it in fact does so, it would be well for reform advocates to keep a close, data-gathering eye on the biotech industry. With fewer patents to rely on, genuine market competition will become a larger factor in the success of the industry, and empirical evidence of growth would help contribute to a more informed public debate on the necessity of IP laws in general.

Posted on March 7, 2012 in copyright, Fair Use, open education by Comments Off

Continuing our discussion of UC Berkeley’s new class notes policy, I’d like to argue that (1) permissions-based policies, such as those embodied in Creative Commons licenses, create less uncertainty and better serve the purposes of professors and students, and (2) to the extent that education is perceived as lying beyond the free market, the invocation of copyright law is counterproductive at best, and hypocritical at worst.

Let’s assume, for argument’s sake, that teaching is a unique profession, one worthy of special consideration. For convenience’s sake, I’ll call this the sui generis position. This appears to be the position of some professors’ writings in support of policies that (as discussed previously) claim copyright protection in class lecture notes to a legally questionable extent. Such support essentially argues that content created by professors and presented in classrooms should be more thoroughly protected against unauthorized use and reproduction.

Within the sui generis position, there is another position, described by Professor Ignacio Chapela in a writing reproduced at Richard Brenneman’s original post about Berkeley’s new policy:

Copyright is clearly only a subservient appendix to the commodification and privatization trends in professional training, but one that is self-defeating and absurd even in its own terms.

This quote follows a refutation of the notion that recordings or notes of the educational process are equivalent to the educational process; Professor Chapela will resist “… the commodification of my life as a teacher and researcher….” So a belief in a fundamental distinction between education and other vocations that create content can lead to two fairly divergent positions with respect to copyright protection. I think that Professor Chapela’s position is more consistent with the basic precept; the enhanced protection advocates seem to assume that market activities present a threat to their activities – in other words, the singular status of education is not something inherent (and therefore safe), but rather an imposition, an artificial separation between education and other social activities that must be maintained through policy.

One of the primary failings of a policy like Berkeley’s is that it ignores the fact that several disparate interests exist within the spectrum of work that a professor may use in teaching his or her students. As it stands, the policy assumes an adversarial relationship between student and professor – that students learn only by the leave of the professor, and that they are at all points in the educational process suspected of divulging pedagogical secrets to for-profit notes distributors.

Policies based on restrictions can, in fact, do a good and thorough job of addressing adverse effects. They are also basically useless at promoting positive effects. Permissions-based policies, in the educational realm, offer far more certainty for students as to what is allowed; they are explicitly told what they may do, as opposed to vague warnings about professors may forbid them from doing. Insofar as a primary goal of Berkeley’s policy is to prevent commercial dissemination, a professor might attach any of three Creative Commons licenses that explicitly prevent commercial use to any prepared materials distributed to students. Such a restriction still allows for the possibility of a defense grounded in fair use, even for commercial uses, but that uncertainty is certainly not lessened in a policy as restrictive as Berkeley’s. The cases that proponents of Berkeley-type policies refer to, as well as the cases I discussed in the previous installment, are by no means strong supports for such policies.

Right around the time period (the early 2000s) when legislators and academics in California were batting about the issue of increased protections for lectures, researchers at the University of Michigan were thinking about the problem of low-quality notetaking by students. Collaborative review, reorganization, and rephrasing of concepts are some of the tools suggested by the UMich paper – such activites, in a balancing act between professors’ and students’ rights (or, phrased differently – between professors’ rights and professors’ responsibilities), should be encouraged by school policies. This cannot be properly accomplished by merely emphasizing professorial copyright; that, as Berkeley’s attempt shows, ends up distorting the teacher-student interaction into the very model of the market-style contractual exchange the sui generis position denounces. Permissive policies would be as effective in getting students to take note of the fact that rights may inhere in educational presentations (more so, if you want them to understand what those rights actually are), and would also emphasize, as a matter of policy, the fundamentals of good note-taking.

As an ideological issue, it is troubling that educators would support a policy blatantly ignoring fair use, when fair use has been invoked (successfully or not) in quite a few instances where educators are the accused infringers. As a policy matter, it would provide normative and legal consistency if universities would ensure that the stances adopted at both ends of the spectrum – as accused infringers and as aggrieved rightsholders – were at least compatible, if not identical.

In the next and final post on the subject, I’ll delve into the specific characteristics of a permissions-based policy, examining what language and terms such a policy might incorporate, and how its provisions provide the same substantive protections, while providing a better balance of rights than, restrictions-based policies.

Posted on February 23, 2012 in copyright, IP, Patent by Comments Off

Last week, the Washington Post reported that the Smithsonian Institution had acquired historical materials from V.A. Shiva Ayyadurai, the inventor of e-mail. One problem: As TechDirt points out, lots of knowledgeable people deny that Mr. Ayyadurai actually invented e-mail.

TechDirt’s article discusses who actually invented email, and why Mr. Ayyadurai’s claim is false. This post focuses on how the dispute illustrates how intellectual property law can throw a wrench in the way people outside of the legal system come to conclusions about issues of creation, authorship, and invention. Responding to comments about its article, the Washington Post issued a “clarification” reading thus:

A number of readers have accurately pointed out that electronic messaging predates V. A. Shiva Ayyadurai’s work in 1978. However, Ayyadurai holds the copyright to the computer program called“email,” establishing him as the creator of the “computer program for [an] electronic mail system” with that name, according to the U.S. Copyright Office.

This is akin to saying “hamburgers predate Ronald McDonald’s work, however, McDonald holds the copyright to a clowning routine, involving the production of hamburgers, called “hamburger,” establishing him as the creator of a ‘clowning routine for placing beef patties between pieces of bread’ with that name.” More than that – it would seem that, at the Washington Post, this reasoning would support a claim that McDonald invented hamburgers.

The TechDirt article notes that the non-clarifying clarification appears to conflate copyrights with patents. The Washington Post, in that case, would be confusing invention with authorship, which is somewhat alarming, coming from a newspaper.

The Post’s description of Mr. Ayyadurai’s stance on intellectual property issues is similarly disheveled. Mr. Ayyadurai says, “I fundamentally do not believe in the patenting of software. It would be like Shakespeare patenting the tragic love story.” He “prefers copyright, which allows others to innovate using the technology.” The first position is relatively uncontroversial, even though it ignores the fact that Shakespeare never could patent the tragic love story, at least not in the United States, and that American courts have, in theory, never embraced software patents that embody nothing more than abstract ideas without concrete application.

The second position, his preference for copyright, is more problematic, because copyright does not protect, or even address, technological innovations. Any usefulness, or utility, described by a copyrighted work must be patented in order to be protected .What copyright protects is individual, singular expression. In other words, it prevents others from appropriating the language an author uses to express a concept or idea. Shakespeare could stop others from copying Romeo’s monologue at Juliet’s balcony, not the idea that a hormonal teenage boy mght do romantic but embarrassing things to woo a girl. Similarly, copyright in software prevents copying, not the use of any innovations described.

The Post also comments that, “by pursuing a copyright on his email work, Ayyadurai opened it up for use, but with credit.” Copyrights are not pursued as patents are; all works of authorship are protected by copyright, whether or not the author registers his work with the Copyright Office, or even places notice of copyright on his work (the © symbol, for instance). Registration is really just a way to ensure that the author is able to sue for money damages should infringement occur. Also, a right to attribution (crediting the author) is not inherent in American copyright law, except in certain cases involving visual artists.

When legal concepts seep into social discourse – here, by underpinning the Post’s assertion that Mr. Ayyadurai invented e-mail, they interact with and modify non-legal concepts. In this case, to have invented something is equated with getting a copyright. This is wrong, as a matter both of law and of plain language. It points to a failure of intellectual property law as a mediating force between creators and the public at large – if no one, not even knowledgeable groups like the Washington Post, really understands what patents, copyrights, and trademarks are, or if misapprehensions such as those illustrated above become common, then how can IP law really incentivize creation and disincentivize misappropriation? It can’t – it simply breeds costly and inefficient litigation that settles specific cases, without clarifying the law for other parties. Shouldn’t laws that encourage technology, literature, and progress in general do better than that?

Posted on February 6, 2012 in IP by Comments Off

Two recent developments of interest for those interested in copyright law: The Association of Research Libraries (ARL) recently unveiled their new “Code of Best Practices in Fair Use for Academic and Research Libraries,” and the Supreme Court handed down its decision in Golan v. Holder.

The Code is an excellent overview of the position academic and research librarians take with respect to the interaction between their mission and copyright law. It does, however, take a more aspirational than legally pragmatic view of fair use issues. For instance, it states that “[f]air use is a user’s right.” Though it is certainly true that fair use is an important legal doctrine, and close to the core of any analysis of U.S. copyright law, it is not actually a right given to users – it is an exception to a right given to copyright owners, an affirmative defense that may cure an otherwise infringing use. Despite this prescriptive bent, the code is a great, example-based way for nonlawyers to engage with fair use issues.

The decision in Golan upheld the removal of a number of works from the U.S. public domain, the result of lawmaking designed to bring the U.S. into alignment with the requirements of the Berne Convention. Bracewell & Giuliani have published an analysis of the case that sets out a core component of the Court’s holding: First Amendment concerns do not really come into play, in the copyright context, unless either the idea/expression dichotomy or fair use are threatened.

Thus Golan gives Congress broad discretionary power over copyright, enough to cut into the public domain. At the same time, it is a reassurance that the fair use defense is and will remain a central feature of American copyright law. The Code of Best Practices, despite presenting a somewhat idealized notion of fair use, is a proactive step towards intellectual engagement with a legal doctrine, by the professionals that have the greatest stake in its continued viability. As copyright terms extend and the public domain shrinks, a continued – and aggressive – discussion of the contours of fair use will be critical in ensuring that culture remains accessible to all.