Copyright/IP Law and Libraries

Yesterday, while poring over the most recent New Yorker, I started down a path to the strange and quirky ins and outs of American Copyright law. Jeffrey Toobin wrote an article on the Google Books project and the strange role of publishers, and it got me thinking about libraries and copyright.

A little digging turned up a lot of information on "digital libraries," and more broadly, "libraries in the digital age," but the cases themselves were by far the most interesting part of my search.

Here's an excerpt from an ALA brief of Sony v. Universal Studios by Mary Hutchings:

"...The Court's holding below that "intrinsic" uses of copyrighted materials cannot be "fair" uses will profoundly affect the ability of librarians to serve their constituencies effectively. Libraries are the critical link in bringing new information technologies to the public at large. Libraries permit the masses to use such technologies otherwise available only to the rich. Thus, many libraries now, and in the future most libraries will, provide patrons with access to videorecorders for "in-library" use. An increasing number of libraries provide off-air tapes of news and other programs for in-library viewing for patrons who are unable to afford their own recorders, and who otherwise would be denied access to broadcast programming. If the decision of the Court of Appeals is not reversed, libraries could be accused of making, or of aiding and abetting, unfair "intrinsic" uses of copyrighted materials. Rapid technological change and the need to strike a reasonable balance between the interests of copyright owners and copyright users make an early national resolution of these issues a matter of great urgency.

And later:

"The effect of the Court of Appeals' holding is to create a dichotomy between entertainment and education which will restrict public access to information and constrict the judicially-recognized role of libraries as "a mighty resource in the free market place of ideas." Minarcini v. Strongville City School District, 541 F.2d 577, 582 (6th Cir. 1976).

I, for one, never knew either that libraries had a defined "judicially-recognized role" nor that library staff saw themselves as protectorates of the poor and redistributors of knowledge where wealth is not distributed evenly. Other library organizations echo these concerns. The International Federation of Library Associations (IFLA) has a manifesto pertaining to internet and information access. They say:

"Unhindered access to information is essential to freedom, equality, global understanding and peace.

and...

"The global Internet enables individuals and communities throughout the world, whether in the smallest and most remote villages or the largest cities, to have equality of access to information for personal development, education, stimulation, cultural enrichment, economic activity and informed participation in democracy. All can present their interests, knowledge and culture for the world to visit.

As these tracts suggest, disseminating information regardless of race, creed, sex, sexual preference, or class are vital elements not only to an American social agenda, but that are and ought to remain protected by US Copyright Law (Title 17). Seen in this light, Hutchings' concerns, as well as those laid out by Lawrence Lessig (quoted in the New Yorker article) are marked (the former moreso than the latter): while the rights of publishers and authors ought to be protected, stripping "the masses" of access to both information and new technologies goes against public rights protected by libraries.

My knowledge of law is limited, so feel free to chastise my interpretation fully.

Medical Econo-ethics

Two recent articles got me thinking about the interplay of economics and ethics in the field of medical research. "The Right to a Trial" is a deeply moving discussion of the ethical problems involved with allowing or refusing to allow terminally ill patients to participate in clinical trials of new disease treatments and the regulatory issues at work in the debate. I found myself torn between my desire for improved access to medical treatment and my general belief in regulation of corporations to protect people.

The second article, written by Columbia University professor Joseph Stiglitz, concerns Intellectual Property rights when it comes to medical breakthroughs. Stiglitz proposes a medical "prize system" funded by industrial nations to encourage medical innovation while keeping the cost of vital pharmaceuticals low. It's not exactly a new idea, but Stiglitz provides some specifics as to how exactly the prizes would be funded and awarded.

Medical ethics is a particularly sticky field because it regularly concerns life-or-death situations. Our general desire to see hard work rewarded is tempered by our compassion for others. It seems impossibly unfair to say "medical researchers ought to make money off their innovations at the expense of human life when patients can't afford their treatments," but it is also difficult to imagine financially rewarding Pedro Almodovar for his cultural innovations while withholding those same rewards from scientists who make consistent breakthroughs in cancer research.

Back to "The Right to a Trial" for a moment. Imagine you're 31, you have two kids under age five, and you've been diagnosed with late-stage ovarian cancer. You've tried every traditional treatment to no avail, and because you are also diabetic, you are ineligible for Phase III clinical trials for a drug that had an 80% effectiveness rate in Phase II trials. You've been given a year to live, tops. If you were willing to take chances with an experimental drug because it had a good chance (or so it appeared) to save your life, wouldn't you have trouble understanding the importance of "regulation"? On the other hand, if you're a company that has produced a promising drug with the potential to seriously lower the fatality rate of an extremely deadly strain of cancer, would you really want to risk losing FDA approval because you had to list "pancreatic failure" as a possible side-effect? And would it be worth it for the thousands of other patients who could be helped?

Bloggers responsible for their commenters?

From MeFi:

|AMP|#8220;Senator John McCain (R. - AZ) has introduced legislation [PDF] that would hold blogs responsible for all activity in their comments sections and user profiles. Provisions of the proposed bill include: (1) commercial websites and personal blogs "would be required to report illegal images or videos posted by their users or pay fines of up to $300,000," (2) bloggers with comment sections may face "even stiffer penalties" than ISPs, and (3) any social-networking site must take "effective measures" to remove any Web page that's "associated" with a sex offender. "Because 'social-networking site' isn't defined, it could encompass far more than just MySpace.com, Friendster and similar sites." The list could include any site that allows comments, author [sic] and personal profiles. Kevin Bankston of the Electronic Frontier Foundation notes that this proposal may be based more "on fear or political considerations rather than on the facts." "McCain's [sic] legislation could deal a serious blow to the blogosphere. Lacking resources to police their sites, many individual blogs may have to shut down open discussion."*

Rut roh. Fining bloggers up to $300,000 for the comments they inspire? Write your congressmen and congresswomen, people!


We've seen a lot of legislative proposals in the last ten years seeking to regulate the internet. I don't have a problem with requiring bloggers (or anyone else) to remove copyrighted or illegal material from their blogs, or even from their comments. I do have a problem with making bloggers responsible for content that does not originate from them. The "easy" way to solve this problem, from the blogger's perspective, would be to screen all comments, but big blogs (like Wil Wheaton's, or community blogs like MeFi or Slashdot), that's pretty much a full-time job in and of itself. Perhaps more importantly, one of the great things about unscreened comments is that users know they aren't being censored, and neither is anyone else. Furthermore, isn't $300,000 a bit excessive for a personal blog? Yikes.


Then there's the social networking/sex offender issue. Many social networking sites tout business networking as their primary functions, and even the infamous MySpace has age restrictions. The ex-sex offender issue is particularly biting: sex offenders have served their debt to society, yet they ostensibly have a high rate of recidivism (although recent studies suggest that rates of recidivism are falling). My home state of California recently passed a bill requiring high-risk sex-offenders to wear a tracking device for their entire lives after release from prison. As Lanier pointed out when we were discussing the bill during the election, a state-sponsored optional program could actually benefit former offenders, because their whereabouts would be established at all times (so if they were falsely accused, they could potentially demonstrate their innocence) and because the positioning devices may serve as a deterrent. A mandatory program, on the other hand, has the effect of punishing people who have already been punished according to their crime by violating their right to privacy.


Beyond that, it's easy enough for someone to falsify personal information and obtain an account that would not immediately identify them as a sex offender if indeed they are. Holding social networking sites responsible for viewing literally every page on their sites and knowing the identities of all sex offenders well enough to determine if a page is "associated" with them, regardless of purported identity, is absurd.


Perhaps you disagree? Comments, as always, are welcome.