Digital Media and Library Copyright talk notes

(These are notes from my presentation at the Library Freedom Project‘s Digital Rights in Libraries unconference, cleaned up into a readable format; meant to accompany the slides. I would not consider these notes publishable as a standalone article, but hope they will be useful to those who could not see the presentation or who want to remember what was said! See the slides from the panel, including the first two presenters, Tim Vollmer and Lila Bailey. Missing the extemporaneous rambling, which I will be happy to reproduce in more or less similar fashion at future in-person meetings, especially if caffeinated beverages are involved.)

Some issues in digital media and library copyright:

  • Digital first sale
  • DRM/anti-circumvention
  • Terms of use

Digital first sale:

One of the most important safety valves in copyright is the “first sale doctrine“. When you buy a physical copy of a copyrighted work, the copyright holder doesn’t get to control what happens to it after that: you may sell it or otherwise dispose of it as you see fit without permission (and even against the copyright holder’s wishes). Early case: prohibited resale below a given price.

First sale allows libraries to exist (and other things like it); it also allows used book/media stores. It makes sense to have a clear separation there or you’d have these objects you couldn’t get rid of. (US law likes to allow people to have control over property once they have bought it in general.)

Digital is theoretically great for libraries, you don’t have to have a physical thing taking up space, you have a copy of a thing. But there are hidden costs, because basically there is no digital first sale in the US.

(Note: “first sale” in general covered by Lila in first part of presentation; basically, copyright holders can no longer use copyright to control movement of physical goods containing copyrighted works after authorized sale to first owner.)

Why no first sale? You must make a copy to transfer a digital work, and first sale doesn’t permit copying, only transfer of owned item. Also you might not own a copy of the work: you got a license to use one, while the copyright holder still has control over the “original”.

Lack of digital first sale is why the rest of these issues can still be a problem. For print media, you bought it, it was yours, the copyright holder had no further control over what you did with it. When you have a digital copy, the copyright holder keeps some of that control. Long after you’ve “bought” a digital copy, the copyright holder can continue to say what you may or may not do with it, can even take it away from you. (It may break contract with you, but penalties for contract breach are often small. Note example of 1984 being pulled from Kindles.)

This is getting taken to absurd levels: John Deere saying you don’t own your tractor, you have licensed the right to use it. This may help the situation: if everyone is angry we may get legislative reform. Legislative reform may be only way to fix this. For now: know that this is an issue and consider it as part of the cost when you are deciding whether to buy print or digital resources for your institution–for something where it is important that you have a permanent copy that cannot be restricted, consider print instead.

More links:

DRM:

“Digital Rights Management” — sounds like what we all came to this conference to hear about, digital rights management. The voice of RMS in my head would say that you should say “Digital Restrictions Management”.

We all know something about DRM and everyone hates it, everyone’s angry about it. And there are about 10 million reasons. I’ll start talking about it by saying what makes me most angry about it: it makes the default protections of copyright a sham. The government won’t stand behind its own built-in protections for the public, will allow companies to enforce things that wouldn’t be permitted in analog media. DRM restrictions can go beyond what copyright would restrict and be illegal to break.

Stealing a great statement from my partner Greg Maxwell (who is a cryptographer): “Information wants to be free” is the truth. But it is not an aspirational statement, it’s a law of nature.

And DRM is one of the ways people try to get around that law of nature. We often make attempts to control laws of nature (we dam rivers to stop them from flowing naturally, we use pesticides to stop organisms from reproducing) and we don’t always get this right. When we don’t know what we’re doing, we can get things very wrong and destroy a fragile ecosystem. We’ve learned at least a little bit about this in the physical world but we haven’t quite figured it out in the digital.

What is DRM? Basically, any technical restrictions that carry a legal penalty for getting around it. (When circumvention is outlawed, only outlaws will circumvent DRM.) Next presenter will talk about function & privacy issues. Technical solution to a social problem, and like all such, an imperfect one.

Note that it can be true that the author wants to let you break the DRM but you could still be in trouble (mainly where a third party applied: many distribution platforms apply DRM whether author wants it or not).

Limited exceptions in sec. 1201: security research, library acquisition decisions (but not any other library purpose), a few others. Other exceptions every 3 years by a cumbersome rulemaking. (New Librarian of Congress to be appointed may bring changes, we’ll see.)

DRM prevents legitimate uses: reading on non-standard devices (including assistive devices), reading on computers where the operator is not allowed to download software, excerpting for fair use in most contexts. DRM creates vendor lock-in, compromises privacy (tracking reading records), normalizes per-use permission culture/non-ownership. DRM makes life hard for libraries and archives: it often depends on services/media/hardware being around and working that will not last long and does not come with guarantees.

It used to be functionally worse and people avoided it because it didn’t work, now it works better (in the technical sense) and you may not realize how it is harming you until you already have invested in encumbered resources, and that’s harmful.

Many commercial vendors use DRM, including many popular in libraries and popular with consumers–Overdrive, Amazon, iTunes store, etc.

The good news is that for almost any DRM encumbrance you may find that someone has broken it. The bad news is that it’s illegal for them to help you, or for you to help others, even where you are allowed to break it yourself. Where exceptions are permitted, you may possess tools, but it still may be illegal to distribute them: you know how to do it, but can’t help your friends and patrons even though their uses would be legal and they do not know how to do it themselves. (Case law has been split on distribution of tools for permitted uses.) Some librarians/advocates choose to help with wink and nudge (suggesting search terms, etc) to fulfill their mission to their patrons.

Anti-circumvention penalty ties to infringement of copyright (for example, case about garage door openers, where no copyright interest so no penalty for circumvention), but making fair uses or copyrighted material has not been permitted.

You can search for DRM-free sources: best guide at DefectivebyDesign.org, covering books, movies, music; you can add to it if you know of any.

Sometimes resources are hard to access not because of DRM, just technical difficulty. Tools exist for help, especially for reading and format conversion. Some examples: Calibre is an ebook reader for many formats, many browser plugins for popular ebook formats, web and command line conversion tools for other file formats.

Other resources:
Brief summary of DRM and libraries from ALA, and DRM tip sheet.

Terms of use:

Copyright is not the only way rightsholders can impose legal restrictions on library media. Terms of use can also impose restrictions that go beyond copyright, such as only permitting a limited number of copies, or only a limited number of times borrowed, or restricting availability of formats. Terms of Use are contract restrictions: maybe between you and a vendor, or maybe between a patron and a website. The penalties are different that copyright infringement (usually actual damages) but still particularly as an institution you want to avoid them.

Example restrictions: many “free” resources allow only personal, noncommercial use (as a library, this is OK, but your patrons may have other ideas for what they need).

Big problem with Terms of Service: they’re hard to read, even for lawyers, ain’t nobody got time for that. (TOS;DR says “I read and understand the Terms of Service” is the biggest lie on the internet; everyone just clicks OK.) Drafted in company’s favor, often just copied boilerplate, not considering public interest or even their own customers/users, may restrict your rights or compromise your privacy. (May allow selling of data, tracking of user behavior, or restrict kinds of reuse, may also require arbitration instead of court, etc.)

You can sometimes negotiate these, especially with services you are paying for. (Not often with websites you access.) And you should; get together with others who may share your interests (consortia members? other local institutions?).

Also there are services to help you read and understand ToS and find providers who have privacy and rights-friendly terms. See TOS;DR (summaries of TOS and ratings of sites) and TOSBack (a terms of service tracker for many major sites), and then check out this awesome comic about Terms of Service, Big Data, and your rights.

Where to go from here

I’ve just recently had my last day at Creative Commons, where I worked as counsel for almost three years. I was hired early in the 4.0 drafting process (it is only half a joke that it was easier for them to simply hire me than to continue to answer my emails), staying to see it published and to support the translation and compatibility efforts. CC is a nonprofit organization, supported primarily by large foundation grants; for something that makes up a significant piece in building the open web, it’s more fragile than it perhaps should be, and in an effort to balance the budget many of the staff were let go. So here I am, using some of my newfound free time being to revive my dormant website. 1

Drafting a standard license is the sort of thing is it fantastic to do once. There simply shouldn’t be that many in the world, and they shouldn’t be revised often. And so despite the task being one I enjoy and am well suited to, I hope that I don’t do it again… at least, not for a long time. 2 But one of the other things I loved about the position is that when you mention what you do, you become a lightning rod for everyone with ideas about copyright licensing, and why it is or isn’t important. I had more good conversations with people who care about this topic than almost anyone else, and had to work through more unusual thought experiments (and actual problems!) than I would have in any other place. And, both because of the job and because I am the sort of person who wanted to do it, I’ve thought about and had conversations about several topics over again where I don’t think my position is the obvious one. I haven’t really written any of it down outside of mailing lists, if at all, and for someone who believes in openness, this is ridiculous.

Some one-line examples:

* The licenses are out, but CC’s work isn’t finished
* …but finishing a project and winding it down should be a sign of success, not failure
* “Pragmatic” vs. “ideological” is usually the wrong way to split up the debate
* You only find out what was wrong with your drafting choices when you ask people to translate them
* The post-copyright society is a myth, and pretending it isn’t doesn’t help
* Your legal terms should mean what they say and say what they mean
* No one knows how license compatibility works
* Nonprofits are the worst, except for most of the other things

I think I’ve spoken about all of these, but I am still terrible about writing in public, even for something as simple as posting to a mailing list. (I have a growing collection of thoughts, from bullet points to multi-paragraph fragments, in a text file where they do no one any good.)

A friend whose own writing I admire advised me to “lower the threshold of what’s postable”–so I will take that as my goal. Because I’d like to have these conversations with more people than just those I’ve met at conferences… and some less serious ones besides.

Notes:

  1. I am still looking for what to do next; your thoughts and suggestions are welcomed.
  2. (This is better than patent drafting–which I learned in law school and found an enjoyable challenge, especially for trying to draft as broadly as possible within the bounds of what is truthful and lawful to claim. But the only field I’d really be qualified to do this in is software, and I would prefer not to create any software patents at all.)