Copyright as Cudgel (emphasis is mine)

"When Congress brought copyright law into the digital era, in 1998, some in academe were initially heartened by what they saw as compromises that, they hoped, would protect fair use for digital materials. Unfortunately, they were wrong. Recent actions by Congress and the federal courts -- and many more all-too-common acts of cowardice by publishers, colleges, developers of search engines, and other concerned parties -- have demonstrated that fair use, while not quite dead, is dying. And everyone who reads, writes, sings, does research, or teaches should be up in arms. The real question is why so few people are complaining....

Back in the 20th century, if someone had accused you of copyright infringement, you enjoyed that quaint and now seemingly archaic guarantee of due process. Today, due process is a lot harder to pursue, and the burden of proof increasingly is on those accused of copyright infringement. For the copyright act, in essence, makes the owner of every Internet service provider, content host, and search engine an untrained copyright cop. The default action is censorship....

Besides prompting such censorship, the act has another major provision, which upends more than 200 years of copyright law that has, until now, served democracy well: the principle that what copyright law does not specifically protect remains available to all to use, for whatever purpose the user sees fit. The DMCA bars the circumvention of electronic access controls that protect online works, a provision that seems to block the use of even those portions of works that might be in the public domain....

As a result, course packets that used to be easy to assemble and affordable to students are now a hassle and a big expense. Professors are abandoning them in favor of prefabricated published readers or less-convenient library reserves. Getting permission to quote from a song or to include an old photograph in a scholarly publication is getting to be prohibitively expensive. Some professional journals are demanding that academic authors assign all rights in all media in perpetuity to them, then gouging subscribers and libraries for the right to read materials that academics weren't compensated for in the first place. Online journals are replacing paper volumes, allowing publishers to extort all sorts of user restrictions from libraries. And those are just the micro-horror stories, the short-term costs of current trends....

The second rhetorical strategy involves focusing on users of copyrighted material -- everyone who reads, writes, watches, photographs, listens, or sings. This is a more pragmatic approach, intended to warn people that the harmless acts they have taken for granted for years, like making a mixed tape or CD for a party, or 'time shifting' television programs and skipping commercials, are threatened by recent changes in law and technology. The organization digitalconsumer.org is promoting 'The Consumer Technology Bill of Rights,' which makes private, noncommercial uses positive rights instead of weak defenses to accusations of infringement....

We must be blunt about the current system's threats to free speech, intellectual freedom, and the free flow of information. We must be careful not to be trapped in nihilistic rhetoric about the 'end of copyright.' Copyright need not end if we can rehabilitate and rehumanize it. Our jobs depend on it." [The Chronicle, via LISNews.com]

David Mattison asked for my thoughts on ebooks and libraries, which prompted me to write the following mini-rant:

eBooks aren't important to libraries right now, but they will be. Digital files of all kinds will be an important part of our circulation, cataloging, indexing, and preservation future, so while there isn't much libraries can do about ebooks right now, there is a foundation we need to start laying today.

The biggest obstacle to the implementation of ebooks in any type of library is that we play virtually no part in the creation, publication, or dissemination cycle so we are completely dependent on vendors, publishers, organizations, and authors to provide us with digital content. We can't force publishers to release their latest titles as ebooks,  we can't implement more appropriate pricing, we can't settle vendors on an open format standard, we can't circulate their titles without the necessary software, and we can't change publisher OR consumer attitudes' overnight. So for all intents and purposes, ebooks simply aren't ready for consumption but even if they were, libraries aren't ready to help consumers consume them.

So if the above is a laundry list of things we can't do to move ebooks forward, what can we do? We can talk to ILS vendors so that our catalogs are ready to circulate ebooks when the time comes. Imagine the light bulbs that might illuminate over publishers' heads if every library that had an interest in circulating ebooks (either text-based or audio-based) signed a petition calling for the adoption of an open ebook standard (I stress might, but we need to start aggregating our voices and this is one way to do it). If even half of the public libraries in the country bought one copy of one ebook as a show of force, that title would shoot to the top of the ebook bestseller lists, generate buzz, and spur consumer sales from the publicity.

We need to contact publishers ourselves and ask why they're not moving forward and offer our help and advice. We need to jumpstart discussions with hardware and software manufacturers to rectify usability problems now, before ebooks blow yet another chance at becoming a full-fledged market. We need to survey our users (especially audiences well-suited to the benefits of ebooks) and become a conduit between them and the ebook industry.

We need to insert ourselves into the debate and the cycle now, because look what a horrible mess this has all become without us.

Forgery Bill Could Criminalize Copying

"The deletion of a single word has dragged a relatively uncontroversial bill into the fair-use fray.

Anticounterfeiting bill S2395 introduced in April by Senator Joseph Biden (D-Delaware) exited many groups' radar screens by the time it left the Senate Judiciary Committee in mid-July. The bill was originally designed to criminalize the forgery of a "physical feature" used for authentication on software, movies, and music--such as mock holograms created to make pirated CDs look legitimate.

But as the bill heads for a full Senate vote, critics are noting that a key word--physical--was dropped. The omission extends the proposal's reach from tangible trickery to digital dupery as well, an addition that some say the legislation is ill-equipped to tackle. It also raises concerns about fair-use rights, say some consumer advocates....

Biden's office says the change was made because digital and physical counterfeiting should be treated the same under law--in the case of this bill, that means a jail sentence of up to a five years and a fine as much as $25,000.

The bill wouldn't restrict consumers from making copies for their private use because the proposed legislation targets trafficking--meaning that copies need to be traded for value, a Biden aide says.

However, some critics argue that the bill's language isn't specific enough to guarantee protection for all fair-use situations.

For example, libraries that trade digital works could, in theory, be sued under the bill, says Jonathan Band, a partner with the law firm Morrison and Foerster." [PC World] (emphasis is mine)

It used to be that everyone agreed that libraries are good things. Not anymore. Sure, censorship has always been a problem but in the digital age, publishers and copyright holders see libraries as the enemy and for the first time, they have tools to physically stop libraries from circulating their material.

Of course, they'd never come right out and say this, so instead they pay for a back door with a deadbolt on one side. They call it an effort to establish laws that would protect their copyrighted works and yes it would do that, but ultimately it would also prevent libraries from circulating digital content altogether. No more borrowing something for free when they can force you to pay to access it.

Copyfight is tracking the controversy surrounding this bill, especially in noting the opinions of some folks that don't think the bill is as bad as it is being made out to be. Knowing how much the entertainment industry would loooove to lock up its content and charge whatever it decides is appropriate for access, I can't overcome my skepticism.

They told us the DMCA couldn't be abused, but it has been. They've promised to retain fair use rights, but they don't offer anything at the negotiation table to support this. In fact, they refuse to implement what has traditionally been the loophole that lets libraries continue on about their business of loaning items. Why? Because if you allow one technological loophole for one group, it will be exploited by other groups and that little pinprick would bring the whole dam crashing down.

These are the people that denied price fixing, deny trying to kill webcasting, and are now trying to legislate into effect the status quo that got them into this mess in the first place. And we're supposed to trust that they won't abuse Senator Biden's proposed legislation? Sorry - I don't have any trust left for them.