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In a continuation of President Obama’s campaign for openness, a White House photostream has been created. The terrific photos were taken by the official White House photographer, but anyone can download them and use them. The photos are offered under a Creative Commons 2.0 Attribution license. All you have to do when you use the photo is to attribute it.¬†This is modern, open, and terrific.

Unfortunately, it’s wrong.

Neither the White House nor the official White House photographer can own these photos. The American people own them. They are federal property so they are your property. The government can’t own a copyright and a government worker can’t claim a copyright on work he did as part of his government job.

Doubtless attributing the photos is the right thing to do. But it can’t be a legal requirement.

It is also modern to assume everything is copyrighted, since that is virtually always the case. I’m sure the White House is trying to say these photos are in the public domain. But it’s awfully hard to say that. It’s pretty much impossible to give up your rights if you have them — the Creative Commons license was designed to do something very much like that. So the White House’s instinct is exactly right. It has simply forgotten that it, unlike any other creator of a creative work, can’t own copyrights in the first place.

No need to ask or to credit. You already paid for those photos.

More on orphan works — copyrighted works whose copyright holders are unknown, often because they have been out of print for so long. the Google Books settlement would indemnify Google if it distributed a copy of an orphan work and the true rights holder turned up later on and sued.

The Internet Archive describes itself as “a digital library of Internet sites and other cultural artifacts in digital form,” and goes on to say, “Like a paper library, we provide free access to researchers, historians, scholars, and the general public.” The Archive maintains the WayBack Machine, which allows you to retrieve old copies of web pages, but it is also a founding member of the Open Content Alliance, digitizing texts and other materials for public access. It is therefore in something of the same business as Google — except for some crucial differences. The Internet Archive is a nonprofit and it is giving stuff away without trying to make money dong so. And thus far it has scanned only public domain works and those copyrighted materials for which it has gotten permission in advance — Google just scanned first and waited to be sued (that’s what brought about the proposed settlement). The Archive does not want to be disadvantaged by being forced to avoid orphan works, or to be subject to suits against which Google is immunized. So, although it is not seeking to interfere with the Google Books settlement, it is asking the court for the same protections Google is getting.

Both Google and the Authors and Publishers oppose the Archive’s move. Which seems to me in itself to raise a flag about the likelihood that the settlement will create a monopoly in the digital library domain.

The discussions about how the Google Book settlement proposes to handle orphan works have expanded. A small group of which I am a member have formally sought to intervene. So has the Internet Archive. Today the NYT Bits Blog has a brief explanation, and some good commentary.

There have also been three articles that take up the settlement in a more serious way:

Randy Picker, “The Google Book Search Settlement: A New Orphan-works Monopoly?” Picker is an anti-trust lawyer. It’s a longish paper (though not by law review standards), but the first few pages provide a good summary.

Pamela Samuelson: “Legally Speaking: The Dead Souls of the Google Book Settlement.” An excellent, clear, short critique of the settlement. Easy to read for the layperson, highly recommended. This will be Samuelson’s column in the July issue of the Communications of the ACM.

James Grimmelmann, “The Google Book Settlement: Ends, Means, and the Future of Books” (pdf, 17 pages). An issues brief, thoughtful and analytical and complete.

I urge anyone interested to read the Samuelson piece in particular.

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

A couple of quick items.

1) The US has released a summary of the state of discussions about the Anti-Counterfeiting Trade Agreement, about which a FOIA request had been denied (or technically, granted) on perplexing “national security” grounds. The bad news is, the summary could have been written by pretty much anyone; it simply explains, in some detail, that they are talking about the things you’d expect them to talk about. And the most important issue, whether there will be a global system of Internet surveillance, watching for pirated music and videos but seeing all Internet communications in the process, receives very spare treatment:

This section of the agreement is intended to address some of the special challenges that new technologies pose for enforcement of intellectual property rights, such as the possible role and responsibilities of internet service providers in deterring copyright and related rights piracy over the Internet. No draft proposal has been tabled yet, as discussions are still focused on gathering information on the different national legal regimes to develop a common understanding on how to deal best with these issues.

Not helpful. I would love to see the US explanation of the US legal regime relating to searches without suspicion.

2) The Associated Press is threatening to go after news aggregators (like the Huffington Post) and search engines (such as Google) who link and quote from their content without paying them. Money is being made with their content, they protest, and they want a cut. “Fair use,” cry the aggregators, pointing out that the AP stories get more visibility because the sites link to them. Apparently the AP hopes that their worries can be resolved without a court battle; we shall see.

3) Added a little later: I should have mentioned yesterday’s report that the movie industry’s solution to digital piracy is to make the US ‚Ķ more like France! There they have a three-strikes law — if the industry complains multiple times to the ISP, you get disconnected, and placed on a national blacklist so you can’t move and get a connection in a new location. That would really be neat, says an industry rep at a Congressional field hearing in movieland — while acknowledging that he doesn’t know how it would work or if it would be legal. As the New York Times reported,

One of the strongest possible measures was offered by Steven Soderbergh, who testified as a vice president of the Directors Guild of America. He proposed that the entertainment industry be “deputized to solve our own problems,” under a model that is being tried in France.

Pressed later for details of the French plan, Mr. Soderbergh stumbled a bit and said he was not quite sure how it might work.

People who have worked closely on Hollywood copyright issues described a French-like solution as a plan under which those who believe their copyright has been infringed might ask an Internet service provider to send successive warnings to an illegal downloader.

If the warnings fail, the downloader might then be barred from using the provider for a time and be placed on a national registry that would block access to other providers.

To pass laws with similar steps in the United States “is going to be tricky,” Mr. Soderbergh acknowledged during the hearing.

That damned Bill of Rights again. Do any of these people understand that there is a reason why Americans can’t be searched without some reason to think they’ve done something wrong?

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?

When Google started the process of scanning millions of books and returning little snippets in response to search queries, the¬†Association of American Publishers and the Authors Guild cried “copyright infringement!” Google countered that the little snippets it was showing fell within “fair use,” but that begged the question of whether Google had a right to make digital copies of entire books in the first place. Eventually the two sides got together and hammered out their differences. Money will start changing hands, between people willing to pay for Google’s digitized books on the one hand, and Google and the authors and publishers on the other.

The settlement is before a federal judge in New York (the same one who dealt with Bernie Madoff, as it happens). If the judge approves it, the problem goes away — sort of. Any individual author or publisher could opt out of the agreement, and retain the right to sue Google for copyright infringement separately. It’s unlikely many will choose to go that route, since by staying in the settlement class, authors will start to realize some revenues from the scanned copies. On the other hand, if another party, Microsoft say, starts digitizing books, the authors and publishers could sue it too; the settlement is a private deal with Google, not legislation dictating how such digital copies should be regarded in the future.

A subset of copyrighted works is now getting special attention. The term of copyright is now so long that many works that are still legally copyrighted have become “orphans” — no one knows who owns the copyright. Revenues will be generated from the sale of these works too and, as the settlement now stands, split up between Google and the¬†Association of American Publishers and the Authors Guild. That doesn’t seem quite right, but it’s not clear what else should happen.

The New York Times had an excellent explanation of the muddle on the front page of Saturday’s paper. Stay tuned — there will be more action on this before the dust has settled.

James Grimmelmann, a Harvard computer scientist turned law professor, has a good analysis of the settlement here.

Things change so fast.

People use Twitter to broadcast short text messages about what they are doing. Pretty vain, but it does have its uses — as David Pogue notes, if you’ve got a question that is hard to Google but has a simple answer, thousands of human beings may be out there, waiting to tell you the answer.

Then people started losing track of the fact that other people were actually reading what they were writing, maybe people who aren’t nice. A US Congressman forgot that his diplomatic mission to Baghdad was supposed to be secret, and that guys with guns and bombs might like to follow his movements.

Now we have people who, having splattered their 140-character-max tweets all over the place, want to assert copyright in what they’ve written. There are only 27^140 possible tweets, can I just copyright them all and then sue anybody who uses Twitter?

Seriously, I can’t think of a reason why these claims of copyright in tweets wouldn’t be valid. But who would worry if somebody passed along his or her tweet to somebody else? Isn’t twittering psychologically in the same space as opening a cage of doves, freeing them to the world?

Or hawks maybe. People are also filing libel lawsuits because they’ve been called dirty names in other people’s twittering. Hmm — certainly could be false and damaging, and certainly is communicated to third parties. Sounds like that claim could hold water too.

We reported for the first time back in October on the case of RIAA v. Tenenbaum. The Recording Industries have taken one Joel Tenenbaum to task for downloading a few songs while he was a BU student, and Mr. Tenenbaum wants a trial. He is being defended by Prof. Charles Nesson of Harvard Law School. Prof. Nesson has challenged the very constitutionality of the Digital Millennium Copyright Act, on basis that the statutory penalties are so disproportionate to the actual damages that the law functions as a criminal statute even though it is a civil statute. That the DMCA is (for the most part) a civil statute has many consequences — the standard of proof is lower, and the defendant has no right to public defender, for example. The result is that defendants in copyright cases almost never contest; instead they settle up with the RIAA out of court.

There has been some suspense over whether the Obama administration’s Justice Department would enter into this controversy. On the one hand, the new administration prides itself on being the friend of the little guy. On the other hand, both the Vice President and several senior members of the Justice Department have reputations as friends of the copyright industry.

Today we have our answer: the Justice Department has indeed entered the argument, and sides unequivocally with the Recording Industries. The DOJ brief (pdf, 31 pages) urges the judge not to deal with the constitutional question if she can avoid it, and then dismisses every constitutional argument put forward by the defense. According to this summary by Recording Industry vs. the People, the Justice Department memo makes no response to the arguments put forward by the¬†Free Software Foundation in support of Tenenbaum’s case — citing various cases and authorities to the effect that the statutory damages set by the DMCA are unconscionably high.

It’s a disappointment — the DMCA is bad law, as we detail in Chapter 6, and we might have hoped for better from the new administration. But previous Justice Departments had sided with the Recording Industries, so perhaps this should have come as no surprise — even with the enlightened Elena Kagan as the government’s top lawyer.

Slashdot has a good precis, and almost 500 comments as of this writing.

The Obama administration is invoking “national security” to prevent the American people from knowing what is in the intellectual property protection treaty it is negotiating with foreign governments. (That page has a wonderful morph of Bush to Obama. Other coverage of this story is aggregated by Jamie Love here.) That’s right — the administration has turned down flat a Freedom of Information Act request for the details of the “Anti-Counterfeiting Trade Agreement” (ACTA), which has nothing to do with making phony money, but instead deals with peer-to-peer file-sharing and other forms of digital copying. With a straight face, the government is claiming that our national security would be endangered if American citizens were to know what deal is being cut with other industrialized countries about monitoring music and movie downloads. Yes — we actually do know a bit about what is in the draft treaty, because of a leaked document, which appears on Wikileaks. You can download it there — it’s a summary sent by a US ambassador to interested industry folks, but not to the public interest groups who generally are vigilant about the downside of high IP protection barriers. According to the Wikileaks digest,

The document reveals a proposal for a multi-lateral trade agreement of strict enforcement of intellectual property rights related to Internet activity and trade in information-based goods hiding behind the issue of false trademarks. If adopted, a treaty of this form would impose a strong, top-down enforcement regime, with new cooperation requirements upon internet service providers, including perfunctionary disclosure of customer information. The proposal also bans “anti-circumvention” measures which may affect online anonymity systems and would likely outlaw multi-region CD/DVD players.

For shame, Mr. President. This is government of the people, by the people, for the people? Tell us what is up.