Ray Beckerman, the tireless attorney behind the Recording Industry vs. the People blog, has noted that the Obama Department of Justice has filed paperwork indicating that it may intervene to defend the Constitutionality of the huge statutory copyright damages being tested in the case (Sony BMG Entertainment Media v. Cloud).

Ray writes,

Procedurally, this will test whether President Obama’s announced policies against members of his administration participating in matters in which they were previously involved will be applied, since partners from Jenner and Block — the architects of the RIAA’s mass litigation campaign — now occupy the second and third highest positions in the new administration’s Department of Justice. According to the President’s announced policies, they should be recused from this case.

Substantively, this will also be an interesting test of whether the Obama administration is going to live up to the President’s pledge to stand up for the people, rather than for the big corporations.

Ray encourages everyone to contact President Obama urging him not to intervene in the case. The White House contact information is here and below is the quick note I submitted. Please do the same!

President Obama’s Department of Justice recent filed papers indicating that it may intervene in a current private dispute in Pennsylvania (Sony BMG Entertainment Media vs. Cloud). The case involved the Constitutionality of the statutory damages awarded in copyright infringment cases (which are thousands of times the size of the actual damage).

This development is worrying because two of the top officials in the Department of Justice (Thomas Perrelli and Don Verrilli), were previously employed as private attorneys for Song BMG and the Recording Industry Association of America (RIAA). As you know, President Obama has promised to prohibit members of his administration from participating in matters in which they previously participated. I am writing to discourage the DoJ from intervening in the case and to inquire as to how Mr. Perrelli and Mr. Verrilli will recuse themselves from a decisions involving the RIAA and this particular case.

Thank you and I look forward to your response.

From the good folks at Public Knowledge:

Hollywood’s lobbyists are running all over the Hill to sneak in a copyright filtering provision into the stimulus package. The amendment allow ISPs to “deter” child pornography and copyright infringement through network management techniques. The amendment is very, very controversial for a couple of reasons:

1. First, infringement can’t be found through “network management” techniques. There are legal uses for copyrighted works even without permission of the owner.
2. Second, it would require Internet companies to examine every bit of information everyone puts on the Web in order to find those allegedly infringing works, without a hint of probable cause. That would be a massive invasion of privacy, done at the request of one industry, violating the rights of everyone who is online.

You don’t need me to explain how bad this is. What we need is for everyone to contact Congress and voice your dissent. Head over to Public Knowledge and help now!

As YouTube’s instability continues to frustrate community members, video makers are forced to adapt. Fanvidders have been highly proactive in both anticipating and managing the constraints presented by YouTube’s copyright policy.

Initially, vidders developed codes for discussing their videos. panswendyy recounts one such strategy,

[My friend] uses the first letter of the character’s names, like B for Buffy, so if it were a Fuffy, she’d just put B/F.

Unfortunately, such codes are ineffective responses to the automated Video Identification system deployed by Google in 2007. With no voice with which to argue fair use, many users sacrifice the incomparably large community on YouTube for friendlier service elsewhere.

Before setting sail for imeem (or Vimeo, blip, dailymotion, etc), prolific YouTube users like cmspillane post videos explaining the reasons for their departure. (Ironically, because of its background music, we should expect the signoff itself to disappear.)

In response to an earlier blog post about preserving comments on disabled videos, Dean writes that YouTube might prefer that users are “unable to de-facto redirect to other versions of infringing material.” This should come as no surprise.

Mirroring videos is the most powerful immediate action that video makers can take to protect their rights as authors.

The gradual disappearance of videos from YouTube over the last 18 months progressed largely undetected because of an emergent practice distributed among thousands of community members. A few common searches reveals that the most popular videos are frequently ripped and re-upped under a variety of accounts. Like bees unwittingly pollinating a field of wild flowers, these re-ups are often executed by spammers looking for more hits on their other videos. The preservation of threatened videos is merely a by-product of their unscrupulous pursuit of views!

Moving to another service allows creators to continue practicing their craft but does little to challenge the irresponsible, wasteful industry practice of issuing copyright claims willy-nilly.

Can proactive re-upping and mirroring be an effective response to the accelerating disappearance of fanvids, remixes, home videos, and rare finds from the YouTube collection?

What would an automated mirroring / re-upping tool look like? Could YouTomb data be mobilized toward such an effort?

Remember, a DMCA takedown is not a judgement. YouTube disables access to videos based on mere claims of infringement. If you have had a video identified, the EFF wants to hear from you. Please do not let the short-sighted actions of a frightened industry intimidate you from participating in the creation of your culture!

(Cross-posted to the YouTomb blog.)

The Students for Free Culture board had an eventful weekend. Not only did we get a little storefront going for our fancy new shirts designed by Patrick Moberg, but we filed for incorporation, posted photos from the Free Culture Conference 2008, and sorted out some bigger plans tasks for the organization. You can read all about it in our public board notes and agenda. We’ll have some more announcements shortly (like our plans for Free Culture Conference 2009 and elections), so keep your eyes peeled.

The following is a post from a guest, Ian Elwood, who has been involved in social justice movements for some time and has tried to bring the Free Software and Free Culture movements to them. We post it here because it expresses a voice in the discussion of free network services. Indymedia London recently considered questions very much like these.  Ian Elwood’s thoughts follow.

The Internet is being used as the primary organizing tool by people in the global social justice and environmental movements, but many do not fully realize how integral technological and cultural freedoms are to having a sustainable activist movement.

As former Project Manager for CorpWatch’s corporate accountability wiki, Crocodyl.org, I noticed that many aspects of interacting with a small but focused online community seemed contradictory. The purpose of the project is to increase transparency, accountability and respect for human rights by holding corporations accountable, yet I grappled with the lack of adoption of tools that were analogous to those aims. I wanted to find out if these themes were consistent in other online communities. My participation in a similar online community, WiserEarth.org, also showed that many activists in environmental and social justice circles are not as insistent about their choice of media and technology as they are about what kind of foods they eat, or the clothes that they wear. Although people insist on organic foods, fabrics and biodegradable soap, they tend to settle for less than what Mozilla has dubbed organic software.

WiserEarth is a site dedicated to creating connections, fostering collaboration and sharing knowledge in the environmental sustainability, indigenous rights and social justice movements. Renowned environmentalist, journalist and author Paul Hawken describes the current movement of people working towards these goals in his book, “Blessed Unrest.” His strategy for creating a directory of organizations that make up this movement was the beginning of a bottom up and global effort—now represented by WiserEarth.org. The site grew from his idea and is now a thriving online community and social networking space with over 17,000 members and 110,000 organizations. Through participating in conversations with WiserEarth staff and community members, a few common themes presented themselves.

Though its content is Creative Commons, its software is GPL and it is working on creating an open API, the majority of the community members on WiserEarth, as with most online communities, do not see the bigger picture of why these measures are important to maintaining the Internet as an independent medium where free speech, privacy and human rights are protected. The staff of WiserEarth understands these issues, but WiserEarth’s new feature development process stresses that the users of the WiserEarth platform should be the main drivers of new features. WiserEarth receives constant feedback about what is useful, what works and what doesn’t, and they attempt to accommodate community member requests as a point of process. Unfortunately, the community regularly requests bells and whistles without regard for more abstract considerations such as the negative social consequences of certain technologies.

The site regularly gets requests to integrate proprietary software into its codebase, create applications within closed social networks, and republish copyrighted content outside the terms of fair use. These things are antithetical to the work that WiserEarth wants to facilitate, because its mission is to help the global community connect, collaborate and share knowledge without restrictions. A copyrighted, proprietary and closed Internet—or online community—cannot do this. Often times selecting a free (as in freedom) tool is not considered, because the gravity of this situation is not felt by the community member making the request.

In this case and in others, I would like to see more community members making requests for integration of software, standards and other related tools that are held to a higher ethical standard. WiserEarth has shown a commitment to the underlying values of the larger free culture and open source movements in its actions, but has not formally made a commitment to the sole use of free and open source tools. It would be good for this commitment to be made, but action will not be taken unless there is a groundswell of community support for ethical web tools.

With a “Yes We Can” attitude on the mind this month, I urge people in the Free Culture community to help WiserEarth by being counted among its members. It would be helpful to have Free Culture people join discussions and educate people about open source, free software and the importance of keeping the Internet free for everyone. WiserEarth is an excellent platform for these discussions, because its members represent a large segment of the global social justice movement—namely the ones who are using Internet technology as a part of their social justice organizing. It is a good wedge community for educating and building more connections between communities advocating for software freedom, media justice, social justice and free culture.

A discussion came up lately about what the difference is between this blog and Free Culture News.  FCNews describes itself on its about page:

Free Culture News is a project of Students for Free Culture and is a blog devoted to happenings in the world of free culture.

There are many sites dedicated to free software, a few to free content, a few to open educational resources, a few to patent law, etc, but there does not seem to be any one definitive resource to go to for general free culture news.  We aim to be that resource.

Keeping our posts minimal and frequent, and pointing to other sources, we try to bring the news as efficiently as possible.

FCNews calls itself “a project of Students for Free Culture” so it’s often confusing why we have two blogs.  One is for news, and the other for…more news?  Before I talk about the differences, let me give a brief history of FCNews.

FCNews sprung out of Free Culture at Virginia Tech, the SFC chapter at Virginia Tech (I’m the chapter head there).  It initially existed as the FC@VT meeting wiki.  My members would post links to news, and because they were not required to write their own analysis, or go through quality control loops they would post a lot of links. It was a wonderful resource because nothing like it really existed, only blogs pertaining to specific areas of free culture.  I read 50+ feeds devoted to free video games, legal battles with the RIAA, etc. and it was really nice to have our wiki as an alternative to that.  Not only could you get all news pertaining to free culture in one place, but you avoid getting tons of articles not related to free culture (eg: Boing Boing and Slashdot are great places to get news about free culture, but for every bit of relevant news, you get a lot of things not really related, and only reading some sections or following some tags usually makes you miss good stuff).

We decided that even though it would require a little more work, we wanted to share that resource with the rest of the world in a nice format.  Thus FCNews was born.

So what exactly are the differences?

Subject matter: SFC’s blog is generally written about SFC as an organization or about events that relate to free culture and education.  It’s not strictly tied down to these matters, but we try to keep it focused on students and on this organization.  FCNews covers free culture in general, meaning it won’t mention everything you find on this blog (because the focus may be too specific), but it will also mention lots of things you don’t find on this blog (because it doesn’t have much to do with SFC as an organization, or to education).

Originality: SFC’s blog consists primarily of original content and in-depth analysis.  FCNews relies heavily on block quotes as to keep the author’s work minimal.

Content length: SFC’s blog contains fairly lengthy articles.  FCNews keeps posts very short and provides the reader with links if they want to investigate further.  A reader of FCNews could read 10 posts in a fairly short amount of time.

Quality: SFC’s blog has a requirement of peer review.  This post will be sent into the hands of another to be proof-read, edited, polished, and handed to you in pristine condition.  It is held to a high editorial standard.  For the sake of speed, and to encourage contribution, every regular poster at FCNews posts without consulting anyone else.  You will find more spelling errors and grammar mistakes there than you will here.  At FCNews, we find the trade-off agreeable.

Frequency: SFC’s blog’s ideal frequency is one post every 1-3 days.  FCNews’ ideal frequency is 3-5 posts in one day.  Neither are really ideal at the moment, but you get the point.

Authorship: SFC’s blog is written by students, and though it wouldn’t mind having a guest blogger occassionally, plans on staying a student-written blog.  FCNews is also currently written by students, but we are open at any time for people outside of the organization becoming regular posters.

Hopefully that answers any questions that you may have had about the differences. The decision between keeping FC@VT news links on our wiki, making our own blog, and writing full articles for the SFC blog was something that was not decided lightly and involved a good deal of discussion.  There was some disagreement when the decision was made, but I think things turned out for the better this way.

So if you have some new and cool news pertaining to education and free culture, where should you post it?  If you just want to quote-and-link, head over to FCNews.  If you want to write a nice well-thought out analysis, post it here, and if it’s of interest to the general public, quote and link yourself on FCNews.  (Or maybe we will do that part without you!  ;) We can be pretty quick sometimes.)

A new, RIAA-backed law in Tennessee will force Universities to filter their networks for copyrighted materials. The government’s estimation of how much it will cost exceeds $10 million, but more worrying is the trend towards networks filtered with systems that do not work and support legacy businesses at the expense of users. The massive lobbying efforts which made this law happen relies on the inaccurate piracy statistics that the big content industry often propagates. However, as Richard Esguerra of EFF explains, filtering is next to useless due to encryption and the willingness of students to swap media through non-network means (external hard drives and iPods). What filtering will do is hamper education and innovation - media studies programs will be unable to make use of fair use when sending files, for example.

Obviously, this is an abhorrent trend that Students for Free Culture opposes. For more information, check out EFF’s white paper on the subject and EDUCAUSE’s information.

This past spring, Georgia State University was sued for copyright infringement by three massive academic publishing houses, Sage Press, Cambridge University Press and Oxford University Press. The case, which has received woefully little attention from the free culture arena, has a number of worrying implications for both universities, specifically, and fair use, in general. This Friday, I had the opportunity to attend a panel discussion at the Georgetown University Library regarding the case where Kenny Crews, Roger Skalbeck and Anthony Moretti discussed the case and it’s implications for higher education; here are some observations and commentary:

The Case at Hand

The lawsuit centers around Georgia State’s use of electronic reserves to make available digital copies of course readings. The case specifically approaches book chapters, though e-reserves are used at numerous universities for assigned readings of various types. By providing digital copies of course materials, students are able to access a wider range of information in the convenience that digital makes possible. While the publishers assert that Georgia State is part of a “systematic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works,” the university claims that fair use clearly protects their policy.

As you may know, fair use permits the use of copyright “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” It rests upon a fuzzy four factor test which will be the center of this case’s copyright dispute:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

As is evident in the statute, Congress wanted to give wide breadth to education, but the panelists at Friday’s event warned that nonprofit education, such as Georgia State, should not been seen as a “trump card” because a judge may weigh the other factors heavier than the first. So, although the first factor (in addition to the above quoted preamble) clearly support Georgia State’s use of multiple copies for education, the other factors will be addressed, as well.

Factors 3 and 4 will be the focus of the complainants. Although Georgia State is only using portions of the copyrighted works, the suit alleges that “In many cases, the distributed excerpts constitute the very heart of the work at issue.” Although a professor may only have posted a single chapter from a lengthy book, Harper & Row v. Nation Enterprises determined that if the used portion is “the heart of the work,” it can infringe, regardless of it’s length.

Finally, because course packs have been decreed a legitimate market, Georgia State is being accused of infringing that potential market of the publishers. However, for many courses, e-reserves are used because purchasing the numerous books used would be prohibitively high for many students. That is, the market doesn’t actually exist because students would be incapable of buying what is placed on e-reserve.

What’s At Stake; What To Do

Because Georgia State qualifies for soveriegn immunity, a lawsuit would only seek injunctive relief instead of damages. The implication is that e-reserves and fair use would be severely limited as a legal fact, even if Georgia State did not have to pay anything in response. In the words of Duke’s Kevin Smith,

“this is an attempt to enforce judicially a “pay-per-use” model of content distribution. The real irony is that it is justified as an attempt to remedy a “free-rider” problem — the claim that universities are appropriating the work of publishers and authors without just compensation. This claim is patently absurd, given the amount of money university libraries invest in published resources, but it is downright offensive when the real issue is clarified. Publishers here are themselves the free-riders, obtaining a huge amount of academic content from the universities and their faculty without compensation. The GSU complaint cites as an irony the fact that one of the professors who is cited as infringing the copyright of Sage Publishing has himself published three articles in Sage journals. The gall of the man! Nowhere is it mentioned that he was required to give up those articles without payment for the privilege of publishing with a company that is now suing his employer to recover even more money for those freely donated articles.”

The pay-per-use model is another example of the publishers seeking to grab more value from universities. Libraries spend millions of dollars purchasing and licensing material from academic publishers. In a physical world, the first-sale doctrine (through library lending and resale) mitigate “pay-per-use” but in a digital world of ubiquitous copying, the publishers want to squeeze more money out of schools.

So what can we do? Here are some ideas, but feel free to add yours in the comments:

1. Educate yourself and school. Raise awareness about fair use and its importance to scholarship and education on campus. Both faculty and students should learn about copyright and fair use. All universities have policies relating to faculty fair use and copyright; what’s yours? Georgia State says that no more than 20% should be used, but what is your school’s policy?
2. Encourage permissive options like public domain and Creative Commons. Faculty and administration need not worry about copyright lawsuits if they are using documents, images and video that is freely available without payment.
3. Support open educational resources. Encourage faculty to publish their work in open access journals. The fewer copyright bullies to sue universities, the fewer chilling effects on education. Open access is the (legal) offense against lawsuits like this one.
4. Get creative: Harvard’s Free Culture chapter created the Thesis Repository to both raise awareness about and quantity of open access scholarship.

As Students for Free Culture embarks upon an ambitious project to open up institutions of higher education, we should keep in mind that universities, and especially their libraries, tend to agree with the principles of access to information, scholarly sharing and creativity. However, they are often held back by actors such as Sage Press who seek to bottle up knowledge. As students we have an important role to play in educating about and assisting the creation of a free culture at universities.

As you may have read on Slashdot:

“Thomson Reuters, the owner of the Endnote reference management software, has filed a $10 million lawsuit and a request for injunction against the Commonwealth of Virginia. Virginia’s George Mason University develops Zotero, a free and open source plugin to Mozilla Firefox that researchers may use to manage citations. Thomson alleges that GMU’s Center for History and New Media reverse engineered Endnote and that the beta version of Zotero can convert (in violation of the Endnote EULA) the proprietary style files that are used by Endnote to format citations into the open CSL file format.”

Perhaps I am biased because I currently attend George Mason Law and I’m trying to start a Students for Free Culture chapter here, but I think that it would be great if we took this opportunity to stand up for open source software against frivolous lawsuits. Even absurd lawsuits can occupy many years and tons of money and effort to dispose of completely (e.g. the SCO - Linux lawsuits), and Zotero / GMU can use all the support they can get. I found Tim Hwang’s pre-conference proposal for a free culture agenda to be very inspiring, especially his first suggestion to “Create A Preemptive Ultimatum Around Creative Works” and defend creative people who because of their reliance on e.g. fair use may be targets for lawsuits. To be sure, Tim’s proposal was to threaten activism as a deterrent to prevent people from being sued in the first place, but that obviously doesn’t preclude also organizing activism around people who have already been sued. His proposal was also more directed at artists and remixing, but given clause 3 of the Open University Campaign, “The university embraces free software and open standards”, supporting Zotero would be an extremely relevant piece of activism.

How can we support Zotero?

George Mason University itself has taken an excellent first step: in a recent e-mail to the student body, GMU has stated that “The University will not renew the institution-wide license for the citation management software EndNote when it expires on November 30, 2008″, due to the pending litigation. While students and faculty can still purchase their own personal copies of course, GMU recommends that everyone consider migrating to Zotero right away, and they have established a website to help people migrate their citations to Zotero.

It seems to me that if any universities are paying for site licenses for Endnote they should join George Mason University in refusing to renew their Endnote license and instead direct funds towards supporting Zotero development (or other developing open source citation management systems). Companies that sue their customers are usually on their way out anyway, it’s time to get off of the sinking ship and prepare for the future. The person who sent out the e-mail about the decision to the GMU community was John G. Zenelis, the “University Librarian/Associate Vice-President, Information Technology”… there may be someone with a similar position at your school who you could talk to. Why not try talking to your university librarian(s) today about transitioning your school from Endnote to Zotero?

Short of changing your university’s policy, of course, you can just stop using Endnote and start using Zotero yourself! Download Zotero today!

P.S. I don’t have much of a need for citation management software at the moment, but I do use one nifty feature of Zotero which lets you save a “snapshot” of a page exactly the way you are seeing it at the moment. I use it to take snapshots of things created by CGI scripts such as ticket confirmation windows which are impossible to save a link to, things I don’t expect to continue to be available such as articles that are going behind paywalls, and things which I expect to change such as wiki pages. The snapshots are saved as a folder with all of the HTML, images, javascript etc. which are necessary to render the page exactly the way it was, and the snapshots can be opened by any web browser. If this sounds nifty to you, give Zotero a try even if you don’t need citation management software. I know this isn’t Zotero’s primary purpose, but I enjoy it nevertheless :) The more people who use it the better, even if it’s not for the original intended purpose.

Today is the 1st annual Open Access Day, sponsored by SPARC, PLoS, and SFC. Over 100 libraries, SFC chapters, and others on five continents are celebrating with a variety of events–most commonly the webcast with Nobel laureates Sir Richard Roberts and Philip E. Bourne at 7 PM EST and 7 PM PST. At 4 PM EST the “Voices of Open Access” video series will be going live on the Open Access 2008 Vimeo channel, so watch for that. If you recorded an open access “shout out” at the Students for Free Culture conference in Berkeley this weekend, it’ll be appearing on the channel as well.

Planning to participate in an Open Access Day event on your campus? Want to help promote Open Access Day? Participate in the OA Day synchroblogging competition!

There are 4 key points that we would like you to address in your post (these are the same questions that we asked the stars of the Voices of Open Access Video Series that we will also release on that day):

* Why does Open Access matter to you?
* How did you first become aware of it?
* Why should scientific and medical research be an open-access resource for the world?
* What do you do to support Open Access, and what can others do?

To enter the competition, all you have to do is blog on this topic on October 14, 2008. We’ll use Google News/Technorati to track entries - to make this easier please use the phrase “Open Access Day” in your post.

The winner gets a bag of PLoS/scienceblogs.com goodies. Remember, in order to be eligible, you have to post about it today. So get cracking!