Against the Grain

Volume 28 | Issue 4 Article 22

2016 Questions and Answers-- Column Laura N. Gassaway University of North Carolina- Chapel Hill School of Law, [email protected]

Follow this and additional works at: https://docs.lib.purdue.edu/atg Part of the Library and Information Science Commons

Recommended Citation Gassaway, Laura N. (2016) "Questions and Answers--Copyright Column," Against the Grain: Vol. 28: Iss. 4, Article 22. DOI: https://doi.org/10.7771/2380-176X.7466

This document has been made available through Purdue e-Pubs, a service of the Purdue University Libraries. Please contact [email protected] for additional information. LEGAL ISSUES

Section Editors: Bruce Strauch (The Citadel) Bryan M. Carson, J.D., M.I.L.S. (Western Kentucky University) Jack Montgomery (Western Kentucky University) Cases of Note — Copyright in Open Source Code Column Editor: Bruce Strauch (The Citadel)

ROBERT JACOBSON V. MATTHEW Kamind did violate the license by not the scope of the license. And the downstream KATZER AND KAMIND ASSOCIATES, including the authors’ names and Java Model user can see what has been added or altered. INC. (DBA KAM INDUSTRIES). UNITED Railroad Interface (JMRI) as the original Even without the immediate changing of STATES COURT OF APPEALS FOR THE source. Likewise, Kamind did not describe how hands of money, there are potential big eco- FEDERAL CIRCUIT, 535 F.3d 1373; 2008 it changed the original source code. nomic benefits. Free of charge will certainly U.S. App. LEXIS 17161. Kamind says they’ve stopped violating the get you immediate market share. The product Robert Jacobson owns copyright to model terms, but Jacobson said they could always start is improved by contributions of many, and it railroading computer programming code which up again. So he wanted a preliminary injunction. helps you build your international reputation. he makes available for public download free of The District Court held Jacobson only had Kamind admitted it copied, modified and charge via the Artistic License, an “open source” a cause of action for breach of contract and distributed parts of Jacobson’s code. Thus a or public license. since there is no irreparable harm in a breach, prima facie case of . Kamind Associates do software for the he couldn’t have an injunction. Kamind says, but we had a license which model train industry and its fanatic hobbyists. You know about that requirement. If it can’t gave us the right to copy, modify and distribute. Jacobson says Kamind copied part of his be repaired because it’s irreparable, I have to A “copyright owner who grants a nonex- software and tucked it into a Kamind package stop you from doing it right now. clusive license to use his copyrighted material contrary to the terms of the Artistic License. So What is This Open Source Thing? waives his right to sue the licensee for copy- Jacobson sued. right infringement” and must sue for breach of The District Court held against Jacobson, Open source licenses are used when artists, authors, educators, software developers want to contract. Sun Microsystems, Inc. v. Microsoft denying his motion for a preliminary injunction. Corp., 188 F.3d 1115, 1121 (9th Cir. 1999). It said the nonexclusive open source Artistic collaborate and thus dedicate their work to the That’s a general rule though. And you can License did not create liability for copyright in- public. It is quite widely and successfully used. see what they’re saying. Yes, I let you do it, so fringement due to it being “intentionally broad.” Creative Commons provides free copyright licenses if you want to give your work to the I can’t sue you for copyright violation because “The license provides that a user may copy you did it. the files verbatim or may otherwise modify the masses or license for some uses and retain for But if the license is limited in scope and material in any way, including as part of a larger, others. There are over 100,000,000 Creative a Kamind acts outside, you get a copyright possibly commercial software distribution.” Ja- Commons licenses out there. The Massachu- infringement. See S.O.S., Inc. v. Payday, Inc. cobson v. Katzer, 2007 U.S. dist. LEXIS 63568. setts Institute of Technology uses Creative Commons to license all 1,800 MIT courses. 886 F.2d 1081, 1087 (9th Cir. 1989); Nimmer Well, that seems pretty straightforward. on Copyright, § 1015[A](1999). But it got vacated and remanded. What are And then there’s Wikimedia Foundation we missing? with 75,000 active contributor gnomes who [U]nauthorized editing is an infringement of have churned out 9,000,000 articles in 250 copyright like any other use outside a license. The Appeal languages. Gilliam v. ABC, 538 F.2d 14, 21 (2d Cir. 1976). As it turns out, Jacobson doesn’t really own By inviting computer programmers around The Artistic License required that any dis- the software. He manages an open source group the globe to make improvements, you can tribution contain copyright notices and tracking which is the collective work of many railroad write and debug far faster than if the copyright of modifications. Driving traffic to the open enthusiasts. You can download it from a Website holder did it all. By requiring a restatement of source incubation page and informing other if you agree to the terms of the Artistic License. the license and other information, that holder users of the project is an economic goal of the I guess they own it as a group. ensures that any user knows his identity and copyright owner that is enforceable by law.

Industry Consolidation Part 2 ... from page 70 Questions & Answers — Copyright simple bloody-mindedness, there’ll be fewer content innovators who include libraries in their Column thinking and dreaming. And then the mega-content-conglomerates, Column Editor: Laura N. Gasaway (Associate Dean for Academic Affairs, who think and dream only in green, will turn University of North Carolina-Chapel Hill School of Law, Chapel Hill, NC 27599; their acquisitive appetites elsewhere — perhaps Phone: 919-962-2295; Fax: 919-962-1193) toward each other. This is the path that leads to monoculture, and stasis, and Disco. QUESTION: (1) A public library staff (2) The library has also downloaded fliers and Alright, I made up that part about Disco regularly copies and pastes images for use in pamphlets produced by other libraries for use — but let it serve to strike a cautionary note library-produced materials. The images are of their patrons. Does this infringe copyright? about the dangers of a static, corporate-driven found on the Internet. Is this infringement? monoculture! continued on page 72 Against the Grain / September 2016 71 growing user-generated content base. Further, loss of a sale of the DVD. Thus, traditional Questions & Answers the combination will permit the development likely would not permit reproduction from page 71 of new informational and analytic tools to in- of the DVD either. crease engagement with researchers. Elsevier QUESTION: (1) How does copyright law ANSWER: (1) Images found on the Inter- says that will improve the SSRN interface that apply to duplicating something for archival net are copyrighted but may be accompanied it will continue to have free submission and purposes? (2) Does a dark archive differ by a license. There certainly are some public downloads, and will remain unchanged in the from an archival collection where materials domain images, images under a Creative Com- short term. Elsevier also pledges to reach out are viewed? mons license or others in which the creator of to community members for ideas on how the the image offers under a free license to use. ANSWER: (1) The phrase “for archival platform can be improved. purposes” is somewhat unclear in this question Many other images are copyrighted and gen- (2) When the announcement was made, erally require permission to use. It is unclear relating to copyright. However, one section of users expressed concern about what would the permits libraries to repro- from the question how the library-produced happen to the papers already on SSRN and materials are used, and this makes a difference. duce materials for in order to preserve them, whether Elsevier would begin to charge very section 108(b), but it is limited to unpublished If the materials are generally made available to high fees for access and downloading. There the public, then permission to use copyrighted works. Libraries and archives are permitted to have been calls from the academic community reproduce unpublished works for preservation images is required. If the library-produced for an alternative similar to ArXiv but for the materials are for in-house use, such as for an or to deposit for research in another library or social sciences. Others pointed out that the archive. One can argue that section 108(c) in-service training program, then their use papers on SSRN have no economic value. may be fair use. To determine if an image is allows preservation even though it does not SSRN has been very important in academia contain the work “preservation” but it does protected by copyright, various sites (such as for measuring the impact of research, however, Flickr) include that information. covers published works and allows libraries to and that is highly valuable, and now a for-profit reproduce deteriorating works in their collec- (2) Materials produced by other libraries company will own this data. Among other tions. Much of the material in archival collec- are copyrighted, but receiving permission to groups, the Authors Alliance is concerned tions is fragile and deteriorating. So, copying reproduce, download and use them should be about the effects of this purchase because materials to preserve them is permitted. easy. Most libraries are delighted to share ma- Elsevier has traditionally created obstacles to (2) Under both of these subsections, the terials, and a simple email request will surely open scholarship. intention is for the materials to be available to result in permission to use. An alternative has already been proposed the public. On the other hand, a dark archive QUESTION: Does fair use apply outside by a group of sociologists and librarians in is one in which access is either very limited of the United States? partnership with the Center for Open Science. or non-existent. According to the California ANSWER: Fair use is a U.S. construct, They will develop an open access archive for Digital Library Glossary, a dark archive is although British commonwealth countries have social science research to be called SocArXiv. “An archive that is inaccessible to the public. It “fair dealing” which is very similar. There is (See https://osf.io/ny5qf/ for the announce- is typically used for the preservation of content some movement on the international scene ment). The papers posted will be an open that is accessible elsewhere.” A dim archive to include fair use in the revisions of some access platform for the social sciences. The is defined as “An archive that is inaccessible countries’ copyright laws. It is too early to mission is to serve researchers and readers and to the public, but that can easily be made predict the outcome of these copyright reform not to make money; further, the intention is to accessible if required. It’s typically used for proposals around the world, however. provide data and code along with the papers. the preservation of content that is accessible If the question is directed at infringement of The first part of the project will be a preprint anywhere.” See http://www.cdlib.org/inside/ foreign works that occurs in this country, fair service to allow fast uploading and open access diglib/glossary/?field=institution&query=C- use does apply. Because of international trea- for readers with links to the latest version of a DL&action=search. ties, someone in the United States who copies paper. The Website for the archive has already Certainly, a dark archive of published works a portion of a work copyrighted in a foreign been created at http://SocArXiv.org. is of less concern to copyright owners than is country applies U.S. law to determine whether QUESTION: A visiting Chinese professor one made available to the public. Copyright law the reproduction is infringement or not. The law arrived on campus with a DVD which she does not differentiate, however. The Section of the U.S. would consider fair use to determine asked the library to duplicate so she could use 108 Study Group did make recommendations whether the reproduction of the foreign work is it in class. She does not want her original to concerning a preservation only exception for infringement that is excused as a fair use. be damaged. Is this permitted? which there would be no public access but QUESTION: Now that Elsevier has pur- ANSWER: Under section 108(c) of the which would carry the ability to make copies to chased SSRN, there is considerable concern Copyright Act, the section that permits library fulfill subsections 108(b) and (c) purposes. See in the academic community that the posting reproduction of lost, damaged, stolen, obsolete Section 108 Report, http://www.section108.gov/ of social science papers on SSRN will change. or deteriorating material, the work must be in docs/Sec108StudyGroupReport.pdf, at page 70. (1) Is there any indication what Elsevier will the library collection. Not only is this a personal QUESTION: When patrons donate gene- do? (2) Will there be nonprofit alternatives copy of a teacher, but the exceptions contained alogical research materials to a public library to SSRN? in section 108 are not available for audiovisual for the vertical file how does copyright apply? ANSWER: (1) Elsevier says that there works (see, section 108(i)). So, reproduction ANSWER: Donated published materials will not be substantial change to SSRN and that by the library is not allowed under section 108. may be added to library collections just as if it will remain open source. Press releases from But is it a fair use to reproduce the DVD? they were purchased. The fact that the mate- Elsevier state that this purchase along with It is not a traditional fair use. The purpose rials are donated for the vertical file is imma- Mendeley, which it also owns, will actually and character of the use is to play the DVD in terial, but it may help to define the format of strengthen SSRN. SSRN is a schol- a classroom (which is permitted under section the materials. Although the question does not arly repository for social science 110(1)), but the original can perform that make it clear, it is assumed that the donated ge- research and has been an ex- function. The purpose of the reproduction nealogical research materials are photocopied tremely valuable platform for here is to prevent damage to the teacher’s or printed from the Internet. It is possible that publicly available open ac- originally acquired DVD, not a traditional fair they were printed from licensed sources, and cess scholarship. Mendeley use. The nature of the copyrighted work is a the license likely covered only the individual is a free reference manager video, which does not weigh strongly in either doing the research. The recipient library should and scholarly collaborative direction. The amount and substantiality of do additional verification of the source of the network. Elsevier claims the portion copied favors the copyright owner materials and their copyright status before that together they will since the entire work is reproduced as opposed adding them to the collection, even the in the provide greater access to a to a portion of a work. The market effect is vertical file.

72 Against the Grain / September 2016