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I previously blogged about the peculiar state of orphaned works under the proposed Google Books settlement. I have now joined with Lewis Hyde and the Open Access Trust (see below for an explanation) in asking the judge who must rule on the proposed settlement to allow our concerns to be heard. The letter speaks for itself so I simply include it below. Stay tuned.

———————–

The Honorable Denny Chin

United States District Judge

U.S. Courthouse, 300 Pearl Street

New York, NY  10007–1312

RE: Case No. 05-cv-8136-DC, The Authors Guild Inc. et al. v. Google Inc.

Dear Judge Chin:

Pursuant to your Individual Practice 2(A), we write to request a pre-motion conference in  Authors Guild v. Google.  We seek to file a motion for leave to intervene on behalf of Lewis  Hyde, Harry Lewis, and Open Access Trust Inc., a Massachusetts nonprofit corporation  dedicated to promoting access to knowledge, worldwide.

We also seek to file motions for our counsel, K.A.D. Camara of Camara & Sibley LLP  and Charles Nesson of Harvard Law School to appear pro hac vice in association with Nathan Z.  Dershowitz, a member of the bar of this Court.

Lewis Hyde, Harry Lewis, and the Open Access Trust represent the community of  readers, scholars, and teachers who use orphaned works.  Orphaned works are works under  copyright, but with a copyright holder who has died, cannot be found, or otherwise has  abandoned his work.  In the status quo, users like us and commercial users like Google can and  do use orphaned works, although we do so against a backdrop of potential legal liability should  the owner of an orphaned work later emerge.

The parties in this case propose to change this status quo by clarifying that the use of  orphaned works is, indeed, actionable copyright infringement; vesting in Google a monopoly in  the lawful use of orphaned works; and dividing between themselves the proceeds of this  monopoly.  The Authors and Publishers, with Google’s consent, purport to represent a class of  copyright holders that includes the owners of orphaned works, even though neither the Authors  nor the Publishers are such owners.  Having turned the Authors and Publishers into legal  representatives of the owners of orphaned works, Google will buy from these representatives a  global license.

The proposed settlement will make Google the only company in the world with a license  to use orphaned works.  No other company will be able to buy a similar license because, outside  the context of the proposed class-action settlement in this case, there is no one from whom to buy  such a license.  The Authors and Publishers join in this scheme because Google proposes to  divide with them, pursuant to the proposed settlement agreement, the revenue that the orphaned  works will generate.  The settling parties plot a cartel in orphaned works.

We seek intervention to defend our interest in orphaned works — to defend the public  domain’s claim to free, fair use.  The purpose of copyright is to promote authorship and learning.   Copyright does this by giving authors exclusive rights for limited times so that authors can profit  from their writing by selling licenses to others.  This mechanism breaks down in the case of  orphaned works because, with respect to these works, there is no one from whom to buy a  license.  The public can buy no license; the author can reap no reward.  Because exclusive rights  in orphaned works do not serve the ultimate purpose of copyright, the public domain has a claim to free, fair use of orphaned works.

We have the right to intervene to present the public domain’s claim to free, fair use of orphaned works.  None of the present parties will present our claim.  It is inconsistent with the settlement they propose.  If the use of orphaned works is free and fair, then there is no exclusive license to give Google and no claim on the part of Google, the Authors, and the Publishers to the proceeds of that exclusive license.  We must press our claim in this case because it is only in this case that there is a party that purports to represent the owners of orphaned works with whom we, like Google, can negotiate.  Our interest in orphaned works, put in jeopardy by the proposed settlement and adverse to the interests of the settling parties, gives us the right to intervene under Rule 24.

Our request to intervene is timely.  It comes shortly after the terms of the proposed settlement became public and made our interest concrete.  And it comes well before the June 11, 2009, fairness hearing on approval of the settlement.  The settling parties claim that class notice was mailed on January 5, although many authors did not receive notice until much later.  Lewis Hyde, for example, received notice by mail dated February 20.  Our intervention comes, at most, three months after notice.

We believe that the proposed settlement worked out by Google, the Authors, and the Publishers is a landmark achievement and an historic event.  But the settlement currently proposed cannot be approved because it does not respect the interest of the public domain in the free, fair use of orphaned works or the revenue that these works will generate — nor was it arrived at through a process in which that interest was represented.  We think that this case and the constitutional issues of national moment that it presents will be better resolved if the public domain has a seat at the table.

Lewis Hyde is Richard L. Thomas Professor of Creative Writing at Kenyon College and was formerly director of the creative-writing program at Harvard University.  Harry Lewis is Gordon McKay Professor of Computer Science at Harvard University and was formerly Dean of Harvard College.  Open Access Trust Inc. is a Massachusetts charitable corporation dedicated to the creation, encouragement, and maintenance of institutions that serve the goal of open access to knowledge, worldwide.

We respectfully request leave to file our motion to intervene and motions for leave for our counsel, K.A.D. Camara and Charles R. Nesson, to appear pro hac vice, in association with Nathan Z. Dershowitz, a member of the bar of this Court.

Respectfully submitted,

____________________________________

K.A.D. Camara

Camara & Sibley LLP

Charles R. Nesson

Nathan Z. Dershowitz

Dershowitz, Eiger & Adelson PC

Though he took a bit of heat for his choice of gifts to the British royal family, I thought it was great that President Obama gave Queen Elizabeth an iPod full of music. The iPod is a great symbol of 21st century America; I am sure the Queen needs no more crystal candlesticks, even the best that American craftsmen can make. And apparently the White House staff did a bit of research on her tastes, so we know that she likes the music.

But wait. Were those songs really President Obama’s to give away?

If he downloaded them from ITunes, he had a license to use them, not the right to give another person a copy. If he bought the CDs, he can’t just go making copies and giving them to people, Xeroxing music as it were. That’s what the RIAA calls “theft” and “piracy.” Fred von Lohmann takes us through the permutations here. Including details about things presidents and queens can do that the rest of us can’t. But the question is: If every college student went out tomorrow and did just what the president did, giving their friends nice new iPods full of tunes, would the recording industry scream? And if so, doesn’t the naturalness of the President’s gesture tell us how absurd copyright law is?

A few hours ago, the MIT faculty adopted a resolution that makes our scholarly articles freely and openly available to the entire world, though the MIT DSpace Institutional Repository. The policy applies to all of MIT:

Passed by Unanimous Vote of the Faculty, March 18, 2009

The Faculty of the Massachusetts Institute of Technology is committed to disseminating the fruits of its research and scholarship as widely as possible. In keeping with that commitment, the Faculty adopts the following policy: Each Faculty member grants to the Massachusetts Institute of Technology nonexclusive permission to make available his or her scholarly articles and to exercise the copyright in those articles for the purpose of open dissemination. In legal terms, each Faculty member grants to MIT a nonexclusive, irrevocable, paid-up, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, provided that the articles are not sold for a profit, and to authorize others to do the same. The policy will apply to all scholarly articles written while the person is a member of the Faculty except for any articles completed before the adoption of this policy and any articles for which the Faculty member entered into an incompatible licensing or assignment agreement before the adoption of this policy. The Provost or Provost’s designate will waive application of the policy for a particular article upon written notification by the author, who informs MIT of the reason.

To assist the Institute in distributing the scholarly articles, as of the date of publication, each Faculty member will make available an electronic copy of his or her final version of the article at no charge to a designated representative of the Provost’s Office in appropriate formats (such as PDF) specified by the Provost’s Office.

The Provost’s Office will make the scholarly article available to the public in an open- access repository. The Office of the Provost, in consultation with the Faculty Committee on the Library System will be responsible for interpreting this policy, resolving disputes concerning its interpretation and application, and recommending changes to the Faculty.

The policy is to take effect immediately; it will be reviewed after five years by the Faculty Policy Committee, with a report presented to the Faculty.

The Faculty calls upon the Faculty Committee on the Library System to develop and monitor a plan for a service or mechanism that would render compliance with the policy as convenient for the faculty as possible.

I chaired the committee that drafted the resolution and led faculty discussions on it throughout the fall. So I’m particularly gratified that the vote was unanimously in favor. In the words of MIT Faculty Chair Bish Sanyal, the vote is ‚Äúa signal to the world that we speak in a unified voice; that what we value is the free flow of ideas.”

Our resolution was closely modeled on similar ones passed last February by Harvard’s Faculty of Arts and Sciences and by the Harvard Law School, also passed by unanimous vote. Stanford’s School of Education did the same, as did Harvard’s Kennedy School of Government just last Monday.

Harry blogged last month about the execrable “Fair Copyright in Research Act” introduced by Rep. Conyers of Michigan, which would repeal the National Institute of Health mandate on open-access publishing and forbid government agencies from imposing similar mandates. This act is harmful to the progress of science and should be scuttled. Now that there are unanimous votes supporting open access by faculty at world-leading institutions, Rep. Conyers should recognize what everyone else does, and deflate his ill-conceived trial balloon.

A few days ago, Roy Blount, Jr., writing as president of the Authors Guild, wrote an opinion piece in the NYT complaining that Amazon, which produces the Kindle book reader, was screwing authors and publishers. The alleged rip-off was this: The new Kindle II has a “talk” button. Push it and it reads the book to you in a computer-generated voice. Pretty much every computer shipped today has the same feature built into its operating system. The intonation isn’t perfect, either on Kindles or on your Windows machine or Mac, but Blount, I would judge, can see much better voices coming, and wants to stop this reading aloud in its tracks. Or rather, stop it long enough to collect a toll.

Blount complains that pushing the talk button turns the written word, which was all you paid for, into a “public performance.” He is magnanimously prepared to make an exception for blind folks. But if your daughter curls up in bed with a Kindle and pushes the talk button, he wants to collect an additional fee¬†for the mechanical voice in your child’s darkened bedroom, beyond what you paid Amazon.

[N]o, the Authors Guild does not expect royalties from anybody doing non-commercial performances of “Goodnight Moon.” If parents want to send their children off to bed with the voice of Kindle 2, however, it’s another matter.

Some buzz was starting to build around what legally constituted a public performance and whether pushing the talk button (on your computer or your Kindle) was really turning the bits from an ebook into an Audiobook. And then all of a sudden, under the cover of darkness of a 5pm Friday press release, Amazon flinched. It added one bit to all the bits that constitute an ebook download to the Kindle II. The one extra bit is set by the publisher, and it tells the Kindle whether the book can be read aloud. If Amazon sends your kindle the ebook with that bit off, pushing the Talk button will do nothing.

The publishing industry is retracing the steps of the music industry. Just as the recording industry is giving up on some of the more absurdly restrictive digital rights management schemes, book publishers are inventing new ones of their own.

Thanks to Chris Soghoian for pointing out the Amazon change of heart. The buzz is continuing about the legalities of this, and about whether the people who really got screwed were those who bought the Kindle expecting that the talk button would work the way it was initially advertised. But the common sense of it is unquestionable. It’s another reminder that when you “buy” a book or a song from a downloading service, you don’t own it. You are being allowed to use it only in ways the service dictates — and the service can even change its mind about that later.

You might think, with all the troubles the country has, that our elected representatives would have better things to do than to keep the results of publicly funded scientific research away from the eyes of the public. You’d be wrong. Represenatitive Conyers from Michigan (of all places where you might think the congresspeople might be frying other fish) has introduced the disingenuously named “Fair Copyright in Research Works Act.” It is awfully hard to understand what the bill says (I am including its text below), but the bottom line is that it would end NIH’s practice of placing the results of NIH funded research on the NIH web site so doctors, other scholars, and the general public can read the papers. Mr. Conyers is carrying the water of scientific publishers which charge extraordinarily high subscription prices which keep going higher as libraries cancel their subscriptions. This is the same practice that has led the Arts and Sciences and Law Faculties at Harvard to adopt “Open Access” rules, by which professors ordinarily retain the right to post copies of their papers on the Harvard open web site.

Why the publishers’ lobbyists are able to put the squeeze on Mr. Conyers I do not know, but would love to.

There is a good, clear explanation of the bill by Robin Peek, writing on Information Today. It goes way beyond the NIH site — it prohibits any other branch of the government from doing something similar.

Here is the text of the bill. The bottom line is that “No Federal agency may, in connection with a funding agreement, impose or cause the imposition of any term or condition that requires the transfer or license to or for a Federal agency of any right provided under copyright law.” That is, the NIH can’t ask, in return for providing millions of dollars of research grants, that it get to put the results of the research up on its web site. Madness. But thank goodness some watchdog group is keeping an eye on the implications of gibberish such as that reproduced below.

H. R. 801

To amend title 17, United States Code, with respect to works connected to certain funding agreements.

IN THE HOUSE OF REPRESENTATIVES

February 3, 2009

Mr. CONYERS (for himself, Mr. ISSA, Mr. WEXLER, Mr. FRANKS of Arizona, and Mr. COHEN) introduced the following bill; which was referred to the Committee on the Judiciary

---

A BILL

To amend title 17, United States Code, with respect to works connected to certain funding agreements.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Fair Copyright in Research Works Act’.

SEC. 2. LIMITATIONS ON FEDERAL GOVERNMENT REGARDING EXTRINSIC WORKS.

(a) In General- Section 201 of title 17, United States Code, is amended by adding at the end the following new subsection:

`(f) Limitations on the Federal Government-

• `(1) LIMITATIONS REGARDING FUNDING AGREEMENTS- No Federal agency may, in connection with a funding agreement–

• • `(A) impose or cause the imposition of any term or condition that–

• • • `(i) requires the transfer or license to or for a Federal agency of–

• • • • `(I) any right provided under paragraph (3), (4), or (5) of section 106 in an extrinsic work; or

• • • • `(II) any right provided under paragraph (1) or (2) of section 106 in an extrinsic work, to the extent that, solely for purposes of this subsection, such right involves the availability to the public of that work; or

• • • `(ii) requires the absence or abandonment of any right described in subclause (I) or (II) of clause (i) in an extrinsic work;

• • `(B) impose or cause the imposition of, as a condition of a funding agreement, the waiver of, or assent to, any prohibition under subparagraph (A); or

• • `(C) assert any rights under this title in material developed under any funding agreement that restrain or limit the acquisition or exercise of rights under this title in an extrinsic work.

• Any term, condition, or assertion prohibited under subparagraph (A), (B), or (C) shall be given no effect under this title or otherwise.

• `(2) CONSTRUCTION-

• • `(A) CERTAIN OTHER RIGHTS NOT LIMITED- Nothing in paragraph (1)(A)(i)(II) shall be construed to limit the rights provided to the copyright owner under paragraphs (1) and (2) of section 106.

• • `(B) NO NEW COPYRIGHT PROTECTION CREATED- Nothing in this subsection provides copyright protection to any subject matter that is not protected under section 102.

• `(3) DEFINITIONS- In this subsection:

• • `(A) EXTRINSIC WORK- The term `extrinsic work’ means any work, other than a work of the United States Government, that is based upon, derived from, or related to, a funding agreement and–

• • • `(i) is also funded in substantial part by one or more other entities, other than a Federal agency, that are not a party to the funding agreement or acting on behalf of such a party; or

• • • `(ii) represents, reflects, or results from a meaningful added value or process contributed by one or more other entities, other than a Federal agency, that are not a party to the funding agreement or acting on behalf of such a party.

• • `(B) FEDERAL AGENCY- The term `Federal agency’ means any department, agency, or instrumentality of the United States Government.

• • `(C) FUNDING AGREEMENT- The term `funding agreement’ means any contract, grant, or other agreement entered into between a Federal agency and any person under which funds are provided by a Federal agency, in whole or in part, for the performance of experimental, developmental, or research activities.’.

(b) Applicability- The amendment made by subsection (a) applies to any funding agreement that is entered into on or after the date of the enactment of this Act.

(c) Report to Congressional Committees- Not later than the date that is 5 years after the date of the enactment of this Act, the Register of Copyrights shall, after consulting with the Comptroller General and with Federal agencies that provide funding under funding agreements and with publishers in the private sector, review and submit to the appropriate congressional committees a report on the Register’s views on section 201(f) of title 17, United States Code, as added by subsection (a) of this section, taking into account the development of and access to extrinsic works and materials developed under funding agreements, including the role played by publishers in the private sector and others.

(d) Definitions- In this section:

• (1) EXTRINSIC WORK; FEDERAL AGENCY; FUNDING AGREEMENT- The terms `extrinsic work’, `Federal agency’, and `funding agreement’ have the meanings given those terms in section 201(f)(3) of title 17, United States Code, as added by subsection (a) of this section.

• (2) APPROPRIATE CONGRESSIONAL COMMITTEES- The term `appropriate congressional committees’ means the Committee on the Judiciary and the Committee on Appropriations of the House of Representatives and the Committee on the Judiciary and the Committee on Appropriations of the Senate.

Robert Darnton, a historian and head of Harvard’s library system, has an important article in the New York Review of Books, called Google and the Future of Books. It lays the utopian Enlightenment vision of a “Republic of Letters” side by side with the development of the Internet. Darnton explains beautifully how the Enlightenment ideal failed to come about (through professionalization and commercialization of knowledge), and warns that we are about to miss another opportunity because of the settlement hammered out between the publishing industry and Google about copyright issues with the Google Books project. The most poignant passage is the following:

Looking back over the course of digitization from the 1990s, we now can see that we missed a great opportunity. Action by Congress and the Library of Congress or a grand alliance of research libraries supported by a coalition of foundations could have done the job [of digitizing the world’s books and making them available over the Internet] at a feasible cost and designed it in a manner that would have put the public interest first.¬†‚Ķ¬†We could have created a National Digital Library‚Äîthe twenty-first-century equivalent of the Library of Alexandria. It is too late now. Not only have we failed to realize that possibility, but, even worse, we are allowing a question of public policy‚Äîthe control of access to information‚Äîto be determined by private lawsuit.

Some time during President Obama’s speech, a copyright notice went up on the White House web site, noting that government-produced materials are not copyrighted, and any third-party content is (unless otherwise specified) for use by all under a Creative Commons Attribution 3.0 license: “a non-exclusive, irrevocable, royalty-free license to the rest of the world.”

A new style to be sure.

In a precedent-breaking ruling, Federal Judge Nancy Gertner will allow next week’s hearing in the case of Joel Tenebaum to be webcast. You’ll be able to view it via the website of the Berkman Center. This is the case (previously blogged here) in which Harvard Professor Charles Nesson is arguing that the copyright statute is unconstitutional because it is excessively punitive, — essentially a criminal statute in the garb of civil law. The decision includes some perspectives not usually penned by federal judges:

In many ways, this case is about the so-called Internet Generation — the generation that has grown up with computer technology in general, and the Internet in particular, as commonplace. It is reportedly a generation that does not read newspapers or watch the evening news, but gets its information largely, if almost exclusively, over the Internet.

The recording industry was not amused by Nesson’s request, stating that he made it “to influence the proceedings themselves and to increase the Defendant’s and his counsel’s notoriety.” Judge Gertner takes up the RIAA’s objections:

While the Plaintiffs object to the narrowcasting of this proceeding, … their objections are curious. At previous hearings and status conferences, the Plaintiffs have represented that they initiated these lawsuits not because they believe they will identify every person illegally downloading copyrighted material.  Rather, they believe that the lawsuits will deter the Defendants and the wider public from engaging in illegal file-sharing activities.  Their strategy effectively relies on the publicity resulting from this litigation.

This case is going to be interesting to watch — the stakes are very high for the industry, and rulings like this will be scrutinized for patterns in the tea leaves.

Reportedly, Barak Obama’s pick to head the FCC is Julius Genachowski, a classmate at both Columbia College ¬†and Harvard Law School, and a close advisor. Genachowski was a key figure in drafting Obama’s technology policies during the campaign.

This is good news for the open-Internet movement, both because of the positions Genachowski has advocated, and because he is close enough to the president-elect to weigh in on the larger issues beyond the FCC’s specific remit, including economic growth and intellectual property issues.

The New York Times reports that the National Archives is preparing to take ownership of 50 terabytes of Bush data — 50 times as much data as Clinton left behind. And yet important stuff may be missing, because of Vice President ¬†Cheney’s claims that only he can be the arbiter of what records are personal and what are national property. And then there is this comment from the Vice President:

“I’m told researchers like to come and dig through my files, to see if anything interesting turns up,” Mr. Cheney said. “I want to wish them luck, but the files are pretty thin. I learned early on that if you don’t want your memos to get you in trouble some day, just don’t write any.”

And don’t turn over the ones you did write, I guess.

The Archives may be overwhelmed; it seems seriously possible that it will be next to impossible actually to find anything. The digital explosion indeed.