Although it is being modified, in the interest of better informing students about the Google Books Settlement, Students for Free Culture has solicited the thoughts of a variety of experts who are providing guest posts reflecting on how the settlement will likely impact students.

In this guest post, Ed Van Gemert, Deputy Director of the General Library System at UW-Madison, explains why students want to use Google Book Search.

At UW-Madison, we routinely refer students to Google Books and the University of Wisconsin Digital Collection. Several examples illustrate some of the K-12 and college use and wide adoption of electronic scholarly resources. Annual usage grows exponentially.

• “I am a college student working on a cultural tapestry for one of my courses.  My instructor wants us to save photographs of the culture we’ve chosen to study on a jpeg file and it can’t be copyrighted. I was hoping you would give me permission to use some of these pictures for my project.  She wants an e-mail sent with consent to use them.  I can’t find pictures any place that aren’t copyrighted, and have been unable to gain permission from any site.  This is strictly for my final; educational use only.  Please help!”
  – University of Wisconsin Digital Collection:  Africa Focus

“I am an eighth-grade student.  I am writing to request information for a school project.  My social studies and English classes are involved in a large research project called “History Day.”   Each year this project follows a different them that is set by the National History Day Office, and for this school year our theme is Conflict and Compromise in History.  I am investigating the 1933 Wisconsin milk strikes.  For this assignment, we are required to study the person/idea/event/issue itself, the background and context in which it happened, and the impact/influence/change it brought about.  I am writing to ask for any articles or documents you could send me with information about the three milk strikes that occurred because of the strikes, and the effectiveness of the strikes.”
University of Wisconsin Digital Collection: State of Wisconsin Collection

The State of Wisconsin collection probably has the greatest impact on K-12 students.  It contains thousands of images and hundreds of books documenting Wisconsin state history which is valuable for teaching and learning.  In this instance we were able to direct the student to primary source interviews, articles, and music of and about the milk strikes.  Many of the resources in the UW digital collection are open access.

National History Day had multiple K-12 students focusing on Harry Houdini.  Copies of his works were checked out from the library.  Campus librarians referred groups to Google Books because four books and a number of articles by Harry Houdini are available full text.  Books available include:

• Miracle Mongers and Their Methods:  a Complete Expose of the Modus Operandi,
• The Unmasking of Robert Houdini,
• Houdini’s Paper Magic:  The Whole Art of Performing with paper.

Native American History classes at UW-Madison as well as National History Day K-12 students have exhausted the available print copies of Chief Black Hawk’s autobiography.  It is available at Google Books as well as other early materials on Black Hawk. Native American History classes have been referred to Google Books to access the Annual Report of the Board of Indian Commissioners 1820-1940.  Google Books offers a good alternative.

An undergraduate researching the Titanic needed primary source materials.  Campus print copies of the congressional hearings into the Titanic were checked out.  The U.S. Congress Hearing on the sinking of the Titanic as well as the British inquiry into the loss of the Titanic was available full text on Google Books.

Undergraduates in environmental history classes have been referred to Google Books to access full text of 19th Century County/Local Histories.

Just some of the many examples of why students find value in using the digital scholarly resources now available in Google Books and the University of Wisconsin Digital Collections.

– Ed Van Gemert

Previous Posts in this Series

• Introduction
• Derek Slater of Google
• Rebecca Jeschke of EFF
• James Grimmelmann of NYLS
• Brandon Butler of ARL

Although it is being modified, in the interest of better informing students about the Google Books Settlement, Students for Free Culture has solicited the thoughts of a variety of experts who are providing guest posts reflecting on how the settlement will likely impact students.

In this guest post, Brandon C. Butler, Law and Policy Fellow at the Association of Research Libraries, addresses the settlement in the context of institutional equality and intellectual freedom.

First, we would like to thank Students for Free Culture for inviting us to share our thoughts on this important issue. The Association of Research Libraries has followed the Google Books litigation closely, and filed Comments with the court along with our partners the American Library Association and the Association of College and Research Libraries. These three associations collectively represent over 300,000 information professionals and thousands of libraries of all kinds throughout the United States and Canada. These associations also cooperate in the Library Copyright Alliance to address other copyright issues that affect libraries and their patrons.

Google and the authors and publishers who sued the search giant over its book-scanning activities have proposed a settlement agreement that would end the suit and govern Google’s scanning going forward. In essence, the settlement would allow Google to continue scanning, and even to offer new products based on the body of digitized books it creates, so long as it shares revenue from these services with rights-holders. More information from the Library Copyright Alliance about the Settlement is available here.

While the parties to this dispute have agreed to the settlement, the judge presiding over the case still has to approve its terms. Copyright owners and other interested parties have filed hundreds of comments with the court. Members of the LCA filed Comments in support of the settlement, but we also raised some serious concerns that we felt the court should address by careful oversight. Students for Free Culture asked us to explain two concerns we raised in our Comments: increasing inequalities between universities and limits to intellectual freedom.

Widespread access to a Google institutional subscription plan with millions of digital books would help level the playing field between elite research universities and less privileged institutions around the country. If the price of the subscription is too high, however, it will have exactly the opposite effect: Students and faculty will demand access to the Google service, but only the wealthiest institutions will be able to afford it. Paying a high price for the Google subscription would divert significant funding away from other important university priorities, creating new inequalities even among universities that have the service. Some schools could be forced to sacrifice heavily to keep up with the wealthiest institutions.

What are the chances that the settlement will have this effect? It is hard to say. If its price is modeled on increasingly exorbitant academic journal subscription prices, the Google service will be out of reach for most institutions. The authors and publishers of most books in the Google corpus are most likely academics who prize access over profits, but if the interest of rights-holders is represented solely (or mostly) by commercial writers and publishers, the price could be set too high.

Intellectual freedom is at stake in the settlement in several ways. First, concerns about user privacy could have a chilling effect on research use of the Google product. Second, the settlement only requires Google to provide access to 85% of the in-copyright, out-of-print works it has scanned. This gives Google discretion to exclude over 1 million books. Google itself may not want to “be evil,” but it will surely encounter pressure from angry partisans seeking exclusion of disfavored books. The Book Search product will give everyone, including children, access to up to 20% of any book from anywhere, and 100% of any book from free public access terminals in public libraries. How long before an angry parent demands that Google ban racy or politically edgy works? The First Amendment does not require private companies like Google to forego censorship, and there will surely be pressure on Google to choose economic expedience over political principle.

Unlike other critics who have voiced similar concerns, we do not oppose the Settlement overall. We believe its likely benefits substantially outweigh its possible harms. The parties and the court can ensure this net gain by awareness of these possible harms and reasonable vigilance against them. Thank you again for this chance to share our views.

– Brandon C. Butler

Previous Posts in this Series

• Introduction
• Derek Slater of Google
• Rebecca Jeschke of EFF
• James Grimmelmann of NYLS

In recent weeks, the iPhone has made quite a stir because of the regulatory decisions made by Apple. Jonathan Zittrain raised this worry in his book, The Future of the Internet, where he cautioned that generativity – the nature of systems to accept input from everyone – was being traded for sterile appliances – devices which do only simple tasks (GPS, TiVo).

The iPhone has led a new way, called contingent generativity, that makes generativity dependent upon an intermediary. Apple gets to decide whose Apps are available for download and though Steve Jobs had claimed that they would only block apps that were malicious, pornographic, bandwidth hogs, illegal or threats to privacy, that hasn’t proven true in practice. As I noted at Techdirt, Apple is becoming a price-setting intermediary that decided the “I Am Rich” application wasn’t allowable even though it didn’t seem to break any rules. “I Am Rich” isn’t alone; other apps which provide additional functionality have been pulled with little to no explanation.

But being an ex-ante regulator isn’t enough. Apple, which is famously closed in character, also has the ability to regulate apps already on a user’s iPhone or iPod Touch. The so-called kill switch was not disclosed to the public until a curious user uncovered the capability. Only then did Steve Jobs admit the functionality existed, saying Apple needed the capability but “Hopefully we never have to pull that lever, but we would be irresponsible not to have a lever like that to pull.”

This position raises a number of questions, many well articulated around the web, not the least of which is why Apple thinks it needs a kill switch an the iPhone and not it’s Mac computers. The issues raised and trend shown by the iPhone’s kill switch is worrying and, as you might expect, some clever engineers have found a way to disable it for jailbroken iPhones, but a thread on the Free Culture mailing list got me wondering if there was a better way to solve this conundrum.

I think there is and I think it should draw on the scholarship of Cass Sunstein and Richard Thaler in their book I recently reviewed, Nudge. For the uninitiated, Nudge is a book about “libertarian paternalism” which aims to create situations where it is easier to make the best choice while not limiting other options. Through architecting designs that enable better decisions, or nudges, libertarian paternalism provides a middle ground between freedom and mandates.

Apple has the opportunity to do so with the iPhone kill switch. The intentions of the regulatory function are good: many users are, for whatever reason, unable to avoid or fix security compromises. Apple has experts who can help these users, but a mandatory kill switch is not the best option. It treats all users the same and removes their ability to run applications they desire, regardless of potential hazards. Asheesh Laroia suggested that Apple allow users to permanently opt-out of the system.

I would go one step further towards openness and make the kill switch an opt-in feature. Call it AppleCare Pro for iPhone or something less awkward. Heck, Apple could even charge for it! Make it a prominent decision in the set-up process and allow users to revisit the option when they desire. Provide nudges towards it when the user downloads an App which might be dangerous (similar to how Google warns searchers they may be entering a nasty page).

This would give the worried or non-experts the ability to have Apple’s paternalistic reach extend to their phones without compromising the autonomy of those who want independence. Parker Higgins of the NYU Chapter worries that those who need Apple’s protection are those likely to ignore the warnings, but I think Apple could architect a system where they are nudged towards better decision-making without a presumption of technological ignorance.

In doing this all, Apple should remain aware that openness and honesty is the best option. The fact that they hid the kill switch until outsiders found it is reminiscent of Comcast’s deceptive practices regarding BitTorrent throttling. Security is a worthy goal, but remember that those with the most at stake, the users, should be the most informed.

[(Mostly) Cross-posted at Blurring Borders]

The New York Times reports (registration required) that a Canadian news-parody show akin to Jon Stewart’s The Daily Show has been forbidden to use video clips of political debates.

[D]uring the current Canadian federal election campaign, Canada’s television satirists have faced an issue that has never troubled “The Daily Show.” An agreement between Canada’s main television networks and its largest political parties blocks the shows from using film clips from the televised leaders’ debates (although the film is still available to conventional news and current affairs shows).

“It speaks for the parties’ great respect for the power of satirical shows that they would demand this,” said Roger Abbott, an Air Farce performer and writer.

Let’s get this straight. It’s OK for Canadian citizens to see a clip of the prime minister debating — if the person commenting on the clip is serious. But it’s not OK if the person commenting on it is making a joke?

This is a terrible precedent. (And yes, I think it’s a precedent even though I live in the United States.) It’s terrible because it chops off yet another piece of our historic right to fair use. Let’s review: Fair use means taking a small snippet of something (like 15 seconds of an hour-long debate) and using it in another context. A TV show doing something like that is obviously not trying to recreate the whole debate. They’re not competing with the producers of the debate, and they’re not making money by copying somebody else’s product. They’re making their own original work. That’s been legal for a long time, and it should stay legal.

Unfortunately, it sounds like the consortium of TV broadcasters that produce the Canadian debates made a Faustian bargain and gave up a big chunk of that long-established right to fair use.

[...]CBC spokesman, Jason MacDonald, who also speaks for the consortium, said that the rule dates back several years; the networks, he explained, agreed to the politicians’ demand in exchange for a promise that campaigns would not use debate clips in their ads.

Translation: TV stations agreed not to let comedians make fun of politicians, and in return the politicians promised not to…um…hold each other accountable for what they said in a public debate. Wait — how is that a fair trade? (Yes, I understand that politicians often use misleading clips in their ads. Even so, is that a reason to forbid their use?)

What’s most disappointing in this news story is the TV stations’ lack of backbone. Politicians running for office need TV a lot more than TV needs them. Instead of acting like professionals, the Canadian consortium seems to have rolled over and given up fair-use rights that have been established (at least in the U.S.) for a very long time.

Apparently the comedians came up with a makeshift solution:

Mr. Abbott said that Air Farce considered declaring itself a news program, but in the end its cast used one of its specialties – impersonation – to create mock versions of the debates.

Clever, but I wish they’d fought harder to use the clips. Every piece of ground we give up in the fight for fair and reasonable copyright policy is a piece we’ll have to re-take someday in the future.

The Texas Attorney General has jumped right out front on the Sony-BMG rootkit scandal (background) and filed a lawsuit. He’s using the new Texas anti-spyware law to sue Sony for its use of hidden malware in music CDs sold in the state. Why is this important? Let us count the ways:

1) Lawsuits are opportunistic. In the best possible sense, this AG saw a smouldering public issue and leapt for the fire extinguisher. Sure, it’s a good chance for him to play hero, but it’s a genuine fire. Kudos to his office for responding on behalf of citizens.

2) Lawsuits get attention. Some get attention from the press. (This one certainly has.) All of them get attention from the entity being sued. Sony is legally responsible for looking at its bottom line. I doubt the $100,000-per-violation penalty that Texas is asking for will ever materialize. Still, fighting lawsuits is expensive. Losing lawsuits is even more expensive.

3) Lawsuits (by attorneys general) reflect the public mood. Face it, this suit would likely never have been filed if it were an obscure digital-rights issue that affected only a handful of geeks. Instead, it’s the result of a public outcry, widespread enough to merit action by major retailers such as Amazon.com and coverage by big-city newspapers such as the New York Times. That’s a good affirmation for those of us who believe that ordinary people care about their technological rights.

4) Lawsuits can focus the power of the (bully) pulpit. What’s striking about this picture? Check out the wallpaper: Fighting Spyware. Thanks, Texas. You just re-branded Sony’s “anti-piracy” effort with a label that every computer user in America loves to hate.

Not every problem can be fixed through the legal system. But sometimes, the power of the law can reshape the playing field. This is one of those times. Want to join in? Here’s the Texas AG’s FAQ, which includes a link to their online complaint form (Texas residents only).

The word pirate gets tossed around a lot in discussion of free culture issues, often by corporations. Recently, the tables turned when a corporation decided to model a new kind of piracy for the world to see. Instead of taking property, or even intangible “intellectual property,” this pirate is taking rights. And it’s doing it under the flag of a EULA, or End User License Agreement.

Let’s recap: First, it was revealed by a private citizen that some of Sony’s music CDs were secretly installing malware on users’ computers. Then, instead of responding with a full apology, explanation, and redress of customer grievances, Sony initially behaved as though it faced a minor p.r. problem, and grudgingly released an uninstall, which some users found hard to access.

Soon it was revealed that although Sony had not mentioned the malware in its EULA, a great deal else was included. The EULA went frighteningly far beyond what users expect, even in this age of digital-rights management.

You might say Sony was sailing its pirate ship into new waters and staking claim. Except those “waters” aren’t new — they’re long-established parts of your territory. The Electronic Frontier Foundation quickly provided a plain-English summary of some of the rights that pirate-Sony tried to assert over you, the paying customer. A few highlights:

1. If your house gets burgled, you have to delete all your music from your laptop when you get home. That’s because the EULA says that your rights to any copies terminate as soon as you no longer possess the original CD.

3. If you move out of the country, you have to delete all your music. The EULA specifically forbids “export” outside the country where you reside.

5. Sony-BMG can install and use backdoors in the copy protection software or media player to “enforce their rights” against you, at any time, without notice. And Sony-BMG disclaims any liability if this “self help” crashes your computer, exposes you to security risks, or any other harm.

6. The EULA says Sony-BMG will never be liable to you for more than $5.00. That’s right, no matter what happens, you can’t even get back what you paid for the CD.

7. If you file for bankruptcy, you have to delete all the music on your computer. Seriously.

This goes far beyond fair compensation or fair anything. Sony is acting like a little kid who is asked what he wants for his birthday and says “Everything!”

Users rebelled. No, Sony, you can’t pirate away our rights to music that we bought and paid for. You can’t have “Everything!” We’re your customers. Remember? Without us, you wouldn’t exist. And Sony pulled back — somewhat. Millions of CDs are being recalled, and the company has apologized.

But has Sony relinquished its piratical tactics for good? Or have they merely taken down the skull-and-crossbones flag and decided to lie low for a few months? The spotlight is on Sony now, but the real test is whether they go back to piracy when nobody’s looking. Bookmark May 2006, and let’s check back then to see if this pirate is still reformed.