Intellectual property

Federal judge rules Google's digitization effort falls under fair use

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A federal judge rules Google's massive digitization efforts falls under the "fair use" doctrine, marking another loss for copyright advocates.

Educause attendees urged to focus on higher education's needs in copyright debates

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Higher education leaders urged to be more engaged -- and less reactive -- on making sure the law reflects "fair use" needs of students and faculty members.

New AAUP report urges faculty to protect intellectual property rights

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A new report from AAUP charges that universities are trying to diminish professors' patent rights in the age of online content.

Essay on Aaron Swartz

Intellectual Affairs

Aaron Swartz committed suicide last week at the age of 26. I would like to pay tribute to him by writing calm, elegiac prose conveying something of his intelligence, his passion, and the distinctive quality of puckishness that photographs of him managed to capture surprisingly well.

Unfortunately it does not look like that is going to be possible. Things would need to make more sense than they have, so far. Feelings of sadness and anger, which are perfectly appropriate responses, keep giving way to the paradoxical and incoherent state of mind in which I both grasp what has happened and simultaneously think that it can’t really be true. This reached its worst and most absurd expression in the passing thought that news of his suicide might be part of a scheme in which Aaron is alive and well, living under a new identity someplace where U.S. government prosecutors will never find him.

It’s possible! Well, no, of course it isn’t. This state of mind is what they call “being in denial,” and it’s embarrassing to recognize. But it hardly seems more irrational than the reality in question. For the government’s prosecution of Aaron for hacking into the Massachusetts Institute of Technology's system to download a few million articles from scholarly journals was not just a case of intellectual-property law being enforced with too much zeal. It seems more like an expression of vindictiveness.

Consider something just reported by the Associated Press: “Andrew Good, a Boston attorney who represented Swartz in the case last year, said he told federal prosecutors in Massachusetts that Swartz was a suicide risk. 'Their response was, put him in jail, he’ll be safe there,' Good said." It is too hard to think about that. Better to imagine him escaping, carrying on his work in silence, cunning, and exile.

He was already something of a legend when we met for lunch not quite five years ago, having already been in touch for a couple of years. At the time, he was known for his role in the creation of RSS and Infogami; his internet-freedom activism and legal troubles were to come. Among his projects had been the online archive he created for Lingua Franca magazine, then defunct though still widely admired. I had been a contributing writer for LF and heard about Aaron from a couple of friends, and was very glad to be able to interview him about the Open Library cataloging initiative he was helping to launch.

Not that long before we were able to meet face-to-face, Aaron had given a talk called “How to Get a Job Like Mine” which covered his career up through the age of 20. In person, he was modest about his teenage coding career, or at least disinclined to say much about it, and I never got the feeling that his later exploits in taking on the Public Access to Court Electronic Records (PACER) database and JSTOR involved anything like hacker vainglory.

In his activism (legal and otherwise) as in his early coding projects, the emphasis was always squarely on making access to information and tools more widely available, on the grounds that restricting the flow of knowledge served only to make already-powerful people still more powerful. Aaron seemed earnest without being dour or humorless, which struck me as giving him one leg up on his hero Noam Chomsky.

While trying to pull these impressions together, I had a moment of seeing something about Aaron that never crossed my mind while he was alive, although it seems, with hindsight, pretty obvious: He was as perfect an embodiment of the mythological being known as the trickster as anyone could possibly be. My copy of Lewis Hyde’s brilliant book Trickster Makes This World: Mischief, Myth, and Art (1998) has gone missing, but the author’s website has a pertinent description.

Trickster figures in various cultures “are the consummate boundary-crossers, slipping through keyholes, breaching walls, subverting defense systems. Always out to satisfy their inordinate appetites, lying, cheating, and stealing, tricksters are a great bother to have around, but paradoxically they are also indispensable heroes of culture. In North America, Coyote taught the race how to catch salmon, sing, and shoot arrows. In West Africa, Eshu introduced the art of divination so that suffering humans might know the purposes of heaven. In Greece, Hermes the Thief invented the art of sacrifice, the trick of making fire, and even language itself.”

The gods and worldly authorities alike think of the trickster as a criminal, or at least a bad apple. Furthermore, tricksters tend to be prodigies -- their genius for invention and disruption already evident in childhood, if not infancy. In the introduction to his book, Hyde writes that the trickster’s disregard for the rules “isn’t so much to get away with something or to get rich as to disturb the established categories of truth and property and, by so doing, open the road to possible new worlds.”

That names Aaron’s attitude beautifully, and my fleeting daydream that he might somehow be pulling a fast one on the authorities is like something out of a trickster narrative. The resemblance also goes some way towards explaining why, more than anyone I've ever met, he seems destined to be remembered as a hero for a long time to come. You don't get to make that many friends who are archetypes, but Aaron was an exceptional person no matter how you look at him.

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Judge slaps down injunction request in Georgia State copyright case

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Judge in Georgia State copyright case deals another blow to publishers, declares victory for the university.

Universities preempt pornographers by buying up "dot-XXX" domains

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Universities snatch up "dot-XXX" Web domains corresponding to their beloved chants and nicknames before pornographers have the chance to.

Opener Than Thou?

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In wake of Pearson's unveiling of a free LMS, Blackboard announces moves to promote sharing of open course content.

Wards of the Court

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A sharp split over digitized versions of "orphan works," as well as anger over Google's books project, led authors' group to sue major university libraries.

Blogger Gets the Last Laugh

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Website mocking photographs used by Washington University in St. Louis is once again active.

I've Been Pirated

All right, I admit it. Like many hopeful authors, I had been Googling my own book. To see if it had been blogged lately, or mentioned by someone at the White House. As usual, nothing new turned up. But then I saw something odd on the screen: a picture of my book’s front cover, but with a Slavic title. What was this?

My book was about a celebrated trial by combat in medieval France -- a duel to the death fought before the king in 1386 by two Norman nobles, Jean de Carrouges and Jacques Le Gris, over Le Gris's alleged rape of Carrouges's beautiful young wife. I spent years researching the story, eking out travel grants to visit archives in France, and tracking down the original documents in Paris; like any author, I felt protective toward my work.

At first, when the Slavic book cover showed up on my screen, I thought it was a joke. But the image linked to an online bookseller in Croatia, and to details about the publisher, translator, number of pages -- and price. Clearly, it was for real.

My next thought was that maybe my publisher had licensed a Croatian edition and forgotten to notify me. Besides foreign-rights sales in some larger territories, there had been smaller deals in places like Estonia and Hungary. Perhaps the Croatian edition, evidently published some three years earlier, had just been overlooked. I got in touch with my editor, who said that the publisher would look into it.

Several weeks later, my editor wrote to say, "You’ve been pirated!"

On learning the news, I felt a mixture of betrayal and pride. Yes, my book had been sold in a foreign country for several years without my receiving a dime of royalties there. But how many authors could claim to have been pirated in Croatia?

My publisher, I subsequently learned, had located the pirate in Zagreb and sent an ultimatum: cease and desist, or sign a contract and pay up. They signed and paid. Not much money was at stake, but I’m grateful to my editor and publisher for going to bat for me -- and for authors' rights in general.

*****

Other odd things have happened since my book first appeared over five years ago. A few months after publication, for example, amid some early film interest, I got an e-mail from a total stranger, saying, "I’ve heard about your book. I haven’t bought it yet, or read it, but I plan to borrow it from the library. In the meantime, do you want to keep the film rights?" The request was so bold, or idiotic, that it annoyed me even more than the later piracy in Croatia. If the guy had asked me in person, I might have punched him.

A few months later, I received an e-mail from someone in France with the same last name – Le Gris – as the squire who was accused of rape in 1386. Oh no, I thought. They've heard about my book, and they're mad at me for dragging the family name through the mud all over again. But the note was friendly and led to further exchanges. A little over a year later, back in Paris to research a new book, I had a very pleasant lunch with one of Jacques Le Gris’s descendants. He didn’t even seem to mind that my research pointed to the likely guilt of his ancestor. Now, if only I could have lunch with a descendant from the other side of the celebrated case.

A little over a year ago, I received a package from France. In it was a self-published novel about the Carrouges family, neatly inscribed to me inside. Its scope was larger than my nonfiction book, but it recounted the 1386 crime and the celebrated duel at some length. Paging through it, I soon saw that it contained material I had quoted from rare documents that apparently the author had never consulted, and even many of my own descriptive phrases. The novel had a list of sources, but it did not include my book.

A novelist, of course is free to write his or her own version of the story – but not using my words, even translated, without acknowledgment. I considered taking action, especially since a translation of my own book would soon appear in France. What should I do first? Write a letter of complaint, pointing out examples of the borrowing? Write my editor again? Or write directly to my French publisher?

On reflection, however, I decided that the best thing to do in this case was absolutely nothing. Attacking a vanity-press publication might simply advertise it to readers who had never heard of it before. And it would distract my French publisher’s efforts to promote my own book. Besides, how would it look in France if an interloping American went on the warpath against a native author who had novelized the local patrimony, even if borrowing someone else's words to do it? Not good. The French might very well side with the author, not me. All considered, it was best just to leave the matter alone.

My book duly came out in France and was very kindly reviewed in a number of major newspapers, and even on Radio France. I’ll never know what would have happened if I had acted otherwise, but I think I did the right thing.

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