Public Interest Authorship



Opening legal education: New coursebook from Duke’s CSPD

Textbooks are essential instructional tools but they’re not without problems. Most familiar to students is the problem of cost: textbook prices have been significantly outstripping inflation for some time, rising 82% between 2003 and 2013 and giving rise to some fairly terrifying charts. But there’s also the issue of tailoring. There might not be a textbook that’s a perfect match for a given instructor’s needs, but the traditional model requires students to purchase material their instructors may have no interest in teaching.

While authors from a variety of fields are making strides to bring accessible and open educational resources into the mainstream, legal education is particularly poised for change.

The most recent development comes from the Duke Center for the Study of the Public Domain, where law professors James Boyle and Jennifer Jenkins have published an excellent[1] open casebook and statutory supplement, Intellectual Property: Law & the Information Society. The first in a series the Center plans on publishing, the book is now available as a free download or for an affordable price in print.

As intellectual property scholars with a more-than-passing familiarity with open licensing, Boyle and Jenkins are eager to explain how they came to publish an open coursebook. Their FAQ is worth reading for anyone wondering, for instance, whether they are “against professors who want to be paid for their work and time” or why they “have a paper version at all.

Publishing under a Creative Commons license, Boyle and Jenkins fully expect that others will modify the book in order to make it work for their needs. They write that “[t]he book is intended to be a textbook for the basic Intellectual Property class, but because it is an open coursebook, which can be freely edited and customized, it is also suitable for an undergraduate class, or for a business, library studies, communications or other graduate school class.”

While traditional publishers have been exploring digital distribution, they haven’t worked to pass the benefits onto students. Aspen, a Wolters Kluwer imprint, made headlines earlier this year when it announced plans to use its heavily-DRMed (and still quite expensive) digital editions to hamstring the used textbook market. It is increasingly clear that the promise of digital publishing is more likely to be realized by committed authors rather than by traditional publishers.

And the launch of the Duke open casebook series is only the latest effort in a growing trend in legal education whereby textbook authors are taking advantage of digital distribution to increase the accessibility and change the nature of course materials. For instance, the Harvard Law School Library and the Berkman Center for Internet and Society have built a textbook creation service, H20, that allows users to develop, remix, and share custom course materials based on CC-licensed source material.

A slightly different approach to some of the same problems is exemplified by Semaphore Press, a for-profit publisher of law school casebooks that considers accessibility to be an essential part of it mission. I recently had the chance to talk on camera with Lydia Loren, a professor at Lewis & Clark Law School and Semaphore Press co-founder. Semaphore charges $30 for a download of any of its DRM-free casebooks, but also provides a pay-what-you-want option to ensure that students have access to their assigned texts.

Boyle and Jenkins write that “Legal education is already expensive; we want to play a small part in diminishing the costs of the materials involved.” In tandem with these other efforts and in light of the growing consensus that traditional textbook publishing could better fulfill its educational purpose, it might be enough to make a difference.


Intellectual Property: Law & the Information Society is available as a free download or for an affordable price in print.


[1] Full disclosure: my own legal education benefited from the beta version of this coursebook, and from the instruction of both Professors Boyle and Jenkins.


Against Spain’s Google Tax

Spain thinks that the internet doesn’t work for newspapers, and thinks it can solve that problem with legislation that would grant copyright holders an inalienable right to receive royalties from content aggregators. The bill has already passed the lower house of the Spanish legislature and is dangerously close to becoming law.

Here’s the problem: an inalienable right to payment might work for those authors who want to be paid, but it would be deeply problematic for those who place more importance on being read.

In general, copyright law has proven largely agnostic regarding the tension between the interests of those who want to make their works as widely available as possible (let’s call them “sharers”) and those who want to limit access in order to maintain profits (“sellers”). In general, sharers can use copyleft licensing to ensure that copyright is no barrier to distribution, while sellers can (at least in theory) enforce their copyrights against infringers.

But while copyleft licenses have worked admirably for sharers, enforcement efforts haven’t proven to be any sort of cure-all for sellers. Indeed, sometimes, as with news, infringement per se isn’t even perceived as the source of the problem. Instead, noninfringing linking has attracted the ire of many rightsholders, particularly where, as with news, headlines and snippets (the argument goes) might satisfy a user’s curiosity on a given subject.

So called “Google Taxes”[1] have been variously proposed and adopted in a number of jurisdictions to make these aggregators pay royalties to the rightsholders to which they link. There are reasons to be dubious of this move wherever it’s implemented, but let’s set those aside for now. Superficially, aggregator taxes work toward solving problems for sellers at the expense of internet intermediaries. While we should be concerned about the effects on intermediaries [2], from a sharer’s perspective they don’t necessarily pose much of a direct problem.

The Spanish approach isn’t just for sellers though. By making the right to a royalty inalienable, it disallows sharers from granting aggregators the right to link to their work royalty-free. It’s a hatchet in the back of copyleft licensing, undercutting the internet’s effectiveness at furthering the interests of sharers in order to shield sellers.

Advocates for the scheme will protest that some measure of inalienability is necessary, otherwise it will prove as ineffective as the approach in Germany, which ultimately resulted in newspapers renouncing their right to be compensated in order to avoid being shutout from aggregation.

All of which suggests that the discoverability fostered by indexing and aggregation is worth far more to sellers than they claim—almost certainly a net benefit rather than a net drain.

So if aggregation isn’t really what’s hurting the news industry, why “tax” it? Especially when the result is a disservice to authors who write primarily to be read?

There isn’t a satisfactory answer unless you’re likely to be persuaded by yet another iteration on “if value, then right.” With real harms and dubious benefits, we can only hope that the Spanish Senate opts to nip this particular legal innovation in the bud.


[1] Note that there is another problem here: large internet companies rarely have physical presences in most countries, but might nonetheless do substantial digital business across borders. The question of how and where such businesses should be taxed is an important public policy issue and the source of much frustration around the word. However, the general taxation question, which is also often called a “Google Tax,” is a little off topic here.

[2] Most importantly, there’s obvious benefit to indexing and aggregation so steps that would discourage it should not be taken likely. It’s also important to remember that not all aggregators have the resources of, say, Google, so mandatory payment schemes might counterintuitively serve to protect incumbents from competitors.


Copyright’s Qualitative Project: A Response to IPSC

This last Thursday and Friday I had the opportunity to attend my first Intellectual Property Scholars Conference hosted here at Berkeley Law.

The phrase that gets thrown around to describe the event is that it’s like scholarly speed dating. Lots of academics (~200?) with shared interests taking turns presenting papers and abstracts in twenty minute blocks. Fantastic fun if intellectual property scholarship gets you going.

Given the staggering amount of scholarship, it can hard to process and respond to so much. But there was one recurring line of reasoning that struck me as both powerful and deeply problematic, so I’m going to address it over a quick series of posts here.

At least two (maybe two and a half) of the presentations I attended were focused on copyright’s qualitative project, that is, the law’s utility in creating works of a certain kind or caliber. For many scholars this is an area to tread lightly, as it takes a certain amount of chutzpah to take a normative stand on what culture should look like and how the law can manipulate creators into making what we’d like to see made.

As is probably obvious, and for reasons I’ll get into shortly, I’m a skeptic of this project. But I’m also sensitive to its descriptive corollary, that is, the importance of taking account of the fact that copyright’s contours might affect the nature of what gets made regardless of our intentions. Pretending that it doesn’t serves no one, but without a normative agenda its hard to unpack what we should make of the observation.

I’ll jump into specific scholars and their ideas in future posts, but for now I’m content just to present the basic line of reasoning.

It’s an uncomfortable idea at the outset, but it’s one that’s well familiar in patent law, where the feeling that the substance of the law plays a direct role in shaping the character of innovation for better or for worse is more widely shared.

So if patent law is affirmative innovation policy and we’re OK with its qualitative project, does it make sense to feel the same way about copyright? I don’t think so, but I’m going to keep working through it, starting with the paper Joseph Fishman presented at IPSC, “Creating Around Copyright.” (PDF)


Notes on a Paper

This is a little ironic, but I hate to draw any attention to anything I’ve written for fear that someone might actually read it. But there’s no avoiding it: the Duke Law and Technology Review recently published a paper of mine. It’s called The Apple E-Book Agreement and Ruinous Competition: Are E-Goods Different for Antitrust Purposes? and you can read it here if that sounds interesting to you.

I bring it up to relate a few criticisms of the paper and my responses by way of my friend Joel Irving. His perspective is that of a librarian/archivist rather than an attorney or legal scholar, so I particularly enjoyed hearing his thoughts. Anyhow, his thoughts are below and my responses follow.

Joel:[I have] minor quibbles with where you said that digital goods do not degrade, and that the fidelity of digital media renders them accessible to future generations. Because of course of bitrot and other ways that digital media does degrade, and that media being accessible requires using some kind of archival format that continues to have software developed to read them, as opposed to proprietary stuff.

I made the point in the context of discussing some of the differences between the markets for digital and physical wares, but Joel is absolutely right to point out that it’s a mistake to treat digital preservation as a foregone conclusion.

A more nuanced (and more accurate) take is that digital storage of cultural heritage items offers incredible possibilities for longterm, high-fidelity preservation. However, that sunny future is entirely dependent on the tireless efforts of committed archivists. Otherwise, bitrot, format obsolescence, and old-fashioned catastrophe will take their toll. Preservation is not something to be taken for granted, and it was my error to gloss over the considerable effort it takes to make sure that culture lasts longer than a generation.

Joel: You don’t mention hardware in discussing Amazon’s monopsony. Maybe this is just the U.S., but I feel like the Kindle has the largest share of physical ereaders, and ease of delivery combined with a proprietary format makes leaving Amazon’s platform, either to buy a book elsewhere or get a new device, difficult.

Now, I don’t perform an analysis on Amazon’s monopsony power in my paper—it’s a little ancillary to my main point. Amazon certainly has market power, and it could very well have a monopsony in the ebook market. It will take a fair amount to persuade me on that point largely because I think entry costs and scalability undermine Amazon’s grip on electronic bookbuying/selling. But I admit that this is take is largely conjecture and subject to correction.

In any case, a full analysis of Amazon’s monopsony power will have to take account of its grip on ereading hardware, its use of DRM, and the resulting switching costs suffered by consumers. Others have commented a little bit about how DRM plays into market power (Cory Doctorow recently gave a talk on the subject here and the EFF’s Parker Higgins wrote about it here) and I largely agree with their commentary on the matter, though I think they might overstate the role the DMCA anticircumvention measures play. I’m no § 1201 apologist (quite the opposite, in fact), I’m just not quite so sure that the law is the driving force behind the state of market.

Joel:Where you say that the public domain may eventually become a [competitive] threat [to contemporary content]: this is something that i’ve been thinking about lately, more because of my own interest in older stuff, and how that is so commonly at odds with present day interests, and why people want latest releases and such so badly. Even when things are based on an older source, people want what’s new, not merely the novelty of something they didn’t know before. Some places do a decent business in reissues and rereleases, but they never become real blockbusters.

This is also a fair criticism. There is value to novelty, perhaps more so now than ever before. I don’t pretend to have deep insight into the sociology of media consumption, but the observation that people consume what’s new in part because it’s new certainly rings true with experience. The strength of the competitive effect an enlarged and accessible public domain will have is absolutely subject to how much people value novelty.

Joel and I are continuing to talk about novelty and popularity and I think the topic is far more meaningful to the culture economy than just this discrete point about competition from the public domain. So maybe I’ll return to the topic here shortly.


The best decision you’ll read today on fees and costs

By way of follow up to my earlier brief post on the Klinger case, Judge Posner has granted Klinger an award of fees and costs for the appeal. And what a strong statement of the public policy concerns at the heart of the fee determination! Posner writes:

The Doyle estate’s business strategy is plain: charge a modest license fee for which there is no legal basis, in the hope that the “rational” writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses, in challenging the legality of the demand. The strategy had worked . . . only Klinger (so far as we know) resisted. In effect he was a private attorney general, combating a disreputable business practice—a form of extortion—and he is seeking by the present motion not to obtain a reward but merely to avoid a loss. He has performed a public service—and with substantial risk to himself, for had he lost he would have been out of pocket for the $69,803.37 in fees and costs incurred at the trial and appellate levels . . . . The willingness of someone in Klinger’s position to sue rather than pay Doyle’s estate a modest license fee is important because it injects risk into the estate’s business model. As a result of losing the suit, the estate has lost its claim to own copyrights in characters in the Sherlock Holmes stories published by Arthur Conan Doyle before 1923. For exposing the estate’s unlawful business strategy, Klinger deserves a reward but asks only to break even.

As icing on the cake, Posner ends with a musing on the antitrust implications of the Doyle estate’s business strategy. Here’s hoping this works as intended and helps give other victims of “copyright” shakedowns the willpower to stand up for their rights in court despite the staggering costs.

Read the opinion here.


Must valuable things be paid for? A response to Taylor Swift.

Taylor Swift recently published her first piece in the op-ed pages of the Wall Street Journal, in which the country/pop star provides her predictions for the future of the music industry.

The result is a little bit of a mixed bag. Swift is an “enthusiastic optimist” who believes that the future of music will be a profitable one, but she doesn’t deny that album sales have “shrunk . . . drastically.” All in all, it’s a worldview that makes sense coming from one of the winners in an increasingly winner-take-all creative economy.

Needless to say, the op-ed has generated a lot of buzz. A famous musician makes her first foray into a heated topic on the pages of the Wall Street Journal? Of course people are reacting. I can’t help myself either, because nestled among her predictions was this thought on the value of music and its price:

In recent years, you’ve probably read the articles about major recording artists who have decided to practically give their music away, for this promotion or that exclusive deal. My hope for the future, not just in the music industry, but in every young girl I meet . . . [so in original] is that they all realize their worth and ask for it.

Music is art, and art is important and rare. Important, rare things are valuable. Valuable things should be paid for. It’s my opinion that music should not be free, and my prediction is that individual artists and their labels will someday decide what an album’s price point is. I hope they don’t underestimate themselves or undervalue their art.

(emphasis added). This syllogism hits an important point (we should value art!), but its premises are deeply flawed. Read the rest of this entry »


PIA on holiday / characters and the public domain

This blog is taking a holiday for the next week and half (it actually began a couple of days ago), but I can’t help but put up a brief post about the Seventh Circuit’s recent decision clarifying how characters enter the public domain. My thoughts are brief (I’m meant to be on holiday!), but anyone looking for more would do well to read Molly Van Houweling’s recap on the Authors Alliance blog.

Most of Arthur Conan Doyle’s Sherlock Holmes stories are in the public domain. Their copyrights have expired, leaving those stories free for anyone to copy and enjoy. Some of the stories, however, are still under copyright. Does this mean that the characters—the iconic Sherlock Holmes and Watson, among others—are off limits for other authors who want to further explore them and to create new mysteries?

As a matter of law, the answer has continued to be quite muddled here in the U.S. Not any longer—or at least not in the Seventh Circuit, where Judge Posner set forth rather clearly that copyright holders cannot retain control of characters created in public domain works simply because later works remain copyrighted.

This is a victory for creators who use the public domain as inspiration, and for the principle that the public interest is best served when works are eventually allowed to become truly open to public use and enjoyment.


The pitfalls of scholarly publishing on scholarly publishing

Times Higher Education is reporting on a publisher’s attempt to alter and discredit a criticism of scholarly publishing ultimately published in one of its journals. Four authors from the University of Leicester School of Management came out swinging in their critical take on trends in scholarly publishing—particularly well-documented, extra-inflationary pricing trends—as part of a debate in the pages of the Taylor & Francis journal Prometheus. The authors’ complaint is one likely familiar to readers of this blog. They write:

“[E]xcluding access to current and state-of-the-art research prevents potential contributions to prevalent scientific problems. High journal prices are also detrimental to new knowledge creation within social science since these prices limit access by academics and students to potential knowledge commons, thus compromising their capacities to develop such commons.”

The authors’ perspective was not endearing to the their publisher, whose senior management delayed the article and apparently demanded that the senior editor of Prometheus remove half its contents. The article managed to make it to publication after Prometheus’ editorial staff threatened to resign en masse, but not without a disclaimer warning readers that “The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information.”

As censorship, the whole debacle was plainly ineffective. It’s almost as if Taylor & Francis hadn’t heard of the Streisand Effect.

But even if the authors still got to say their piece, and even though the publisher’s censorial position appears to have drawn attention to the article, the situation remains disheartening. One important function of academic publishers is to help ensure the integrity of the works they publish. Having demonstrated its willingness to compromise the integrity of its articles, and having deliberately undermined its own content through nonstandard disclaimers, Taylor & Francis deserves to lose the confidence of its authors and its readers. Academic publishers need to remain editorially disinterested, particularly where their business is anything but disinterested.


Source: Times Higher Education
See also: Publisher, be damned! From price gouging to the open road


Public Domain Handbook

Works enter the public domain when their copyrights expire or why they were never copyrighted in the first place. Once there, these works are available for other authors to freely draw from, adapt, and repurpose, and for archivists to copy and provide to the public.

Sounds simple enough, right? Unfortunately, the process is anything but simple for works made in 1923 or later. The changing landscape of copyright law has made public domain determinations a headache for many 20th century works, making the process, at its most simplified, like the flowchart below.

Thankfully, a stupendous effort by the Samuelson Law, Technology, and Public Policy Clinic here at Berkeley Law has released Is it in the Public Domain?, a CC-licensed handbook for evaluating the copyright status of works made after 1923 (the source of the above flowchart). The handbook brings a great deal of clarity to an unfortunately complex process. While it’s just not possible to simplify the process of making a determination, the handbook at least brings the process down to earth in a way that is understandable.


Source: Samuelson Clinic News


The PIA Blog is Looking for Publication Agreements

Publication, whether academic or otherwise, requires authors to give publishers some set of rights to the published work. Exactly how much is given up depends almost entirely on the publication agreement. It can range from a narrow nonexclusive license, to an an outright transfer of the copyright, with countless alternatives in between.

One roadblock in our understanding of the publishing ecosystem and what it means from a public policy standpoint is that there are an incredible number of these agreements and precisely what they say is not public knowledge.

For my research, I would like to gather, study, and report on what publication contracts actually contain. But in order to that, I’m going to need to track them down. You can help by emailing me your agreements. I’ll keep our communication private, and will anonymize my reporting on what I find.

Have some agreements for me? Send them to mikewolfe@law.berkeley.edu. Thank You!