Gonna buy me a Wii! Not a CD?

In the past two weeks, two important events have occurred related to the entertainment industry — Record Store Day and the release today of Grand Theft Auto IV (GTA). The first is a sign of a highly wounded element of the entertainment industry and the second is a sign of the most robust element of the entertainment industry.

In March, the video game industry managed to clear $1.7 billion, up 57 percent from March 2007. Software sales totaled $945.6 million, a 63 percent increase, due to popular games like Super Smash Bros. Brawl and Rainbow Six Vegas 2. GTA is expected sell 8 to 9 million copies today and to make $400 million (no, that is not a typo) in its first week of release.

The difference between where these industries are heading is quite striking. The video game industry continues to face increasing criticism for violence, sexual situations, and sexism (exemplified by all versions of GTA). But video game-based negative outcomes aren’t being directly implemented by the industry itself upon its fans. With music, the public views all the negativity as being created by the industry towards fans. What is killing the music industry is the process of going after one’s own customers.

Yet so far I’ve made the choice to spend my entertainment dollars on music rather than video games. As someone who has never illegally downloaded music — no, not even for the rare Japanese only remix, I despise the industry’s tactics so much that I buy most of my music used from those same music stores that hosted Record Store Day (sorry, Chris Gaines).

Overall, the music industry responses to trying to hold up a dying business model are pushing people into devaluing the efforts of the artists that are creating and recording music. Gamers can focus their efforts on enjoying their games, while all music fans must deal with being considered downloading Godzillas.

Lexicon of Love?: Why the Harry Potter Lexicon lawsuit isn’t only about derivative works and fair use

What would a live Lexicon of Love look like?

Last week the testimony ended in the Harry Potter Lexicon case regarding whether J.K. Rowling can prevent the print publication of the Lexicon, a non-licensed encyclopedia of the Harry Potter universe. While barely mentioned during the trial, this case is not just about one unwanted book, but concerns the entire Harry Potter fan community.

From most news-reporting and critics, the case was a simple binary dichotomy of:

  • J.K. Rowling — as either the super-rich author trying to suppress a labor of love by a fan ORas the author wanting to protect her precious creations from an unauthorized use by another
  • Vander Ark — as either a fan wanting to show his appreciation for the work he loves OR as someone trying to make money based on another author’s creation

But the Lexicon was created as a online encyclopedia with a large number of fans helping to make the entries accurate. When Vander Ark signed his book deal there was no consideration of the countless fans that contributed and made the website a success. So this is a fight between the author (who has made $$$$$$$$$$$$$$$$$$$$$$$$$$$$$) and the compiler/host of a fan-created work (who is interested in making $). And the fans who have contributed to the Lexicon get neither $ nor recognition of their contribution.

One of the most important issues revolves around ownership. According to Rowling’s complaint:

Steve Vander Ark has said the Lexicon was “created, edited, written and maintained primarily by one person, me,” and the book has listed only one author; however other evidence … claims that the book was the result of 20 academic scholars and reference experts’ work.

And that doesn’t even include the additional fan input!

The longest mention of fans during the trial was during by the potential publisher on the first day of the trial:

Q… if you win this case, out of the money that you receive, you don’t plan to give any of it to fans who submitted their work, their time, to submitting information from Ms. Rowling’s book to Mr. Vander Ark’s website, is that right?
A. That’s not true.
Q. You’re going to give back money to the fans, is that what you’re saying?
A. If the book is successful, there’s a lot of possibilities.

The second day of the trial, the judge said that the issue of fan payment/contribution was irrelevant, to what was deemed the larger issue — that of fair use:

The question here, as I understand it, is whether or not the book, proposed book, the Lexicon, can be published as a matter of fair use, and that’s the issue, is whether it’s a fair use of Ms. Rowling’s novels, for someone to publish this Lexicon. Whether or not the fans contributed in part is a side issue.

Thinking about this case as simply a binary dichotomy fits nicely into viewing this case as a struggle between the derivative works right and fair use. But the fan community isn’t directly considered in traditional copyright considerations — as shown by the judge wanting to move forward from this issue. In the Info/Law blog, Derek Baumbaeur, discusses how an additional fair use factor should be considered regarding the copyright’s owner’s behavior:

Rowling has been supportive – very much so – of the Lexicon as long as it remained on-line and relatively non-commercial. To the degree that free speech concerns arise in this case …, Rowling’s conduct mitigates those worries. … She’s allowing this information to be presented to her fans and the public in general, while trying to minimize financial harm to her works. Copyright is often presented as a balance between incentives to produce and access to that production; here, Rowling’s approach seems to find that balance.

I wish that the judge had been interested in potentially considering the fan input as a possible sixth (?) factor.

It is difficult to see how this case will be decided — after all, if Vander Ark wins, there will likely be far-reaching consequences to fan-created works and fair use rights. But J.K. Rowling has always been supportive of the fan community surrounding her works, interceding on behalf of fanworks (she is however against fanworks that use underage characters in illegal physical situations).

This case has already led to a rift in the Harry Potter fan community, with the Leaky Cauldron (the most popular Harry Potter news-site/message-board) cutting all ties to the Lexicon. Unfortunately for J.K. Rowling and fortunately for fair use, I think that Vander Ark will “win” the case. However, I predict a Pyrrhic victory, with Vander Ark further being shunned from the fandom. At least when we the public buy Harry Potter books, movie tickets, and merch, we know where our $ is going; yet hopefully Vander Ark’s use of fan labor most likely without compensation or credit will not be repeated by others.

Instead of linking throughout this post these are the additional sources I suggest:

For the best legal reporting day by day of the case, I suggest Dan Slater’s posts on the Wall Street Journal Law blog and in an article here.

The documents filed in the case can be read on Justia. The trial transcripts are on Stanford Center for Internet and Society’s website here, here, and here.

Fandom Wank has been a great source of complilations of news-reporting and a compilation of fan opinion that varies greatly from that of legal commenters. Warning: Fandom Wank threads can sometimes be not safe for work (NSFW), but all of the relevant posts are here.

For more about the Rowling/Warner Brothers/fanworks controversy, see Chapter 5, “Why Heather can Write” in Henry Jenkins’ Convergence Culture (or more generally here).

An update on locked-up / “owned” government information: In Honor of National Library Week

Just try to read me on Google Book Search!

Works by the U.S. government are in the public domain* — but are they truly available to the public? Some publishers have managed to lock up public domain materials or have not made them accessible as publicly promised.

Government-created public domain materials have been locked away from the public through contract (Westlaw directly with the government) and through default settings that vary from stated policy (Google Books). An additional complicating factor for public domain government documents is their official status or “citability.” I’ll be discussing all of these factors.

No company should be allowed to hold all of the public domain cards through contracts or licensing agreements when the entire deck of the public domain clearly belongs to the public.

So first with the contract/licensing that keeps public domain materials locked away. The most recent highly publicized incident includes the U.S. Government Accountability Office (GAO) legislative histories, an excellent source of information about the reasoning behind why laws were created the way they were.

Since 1921, the GAO has compiled 20,597 legislative histories of most public laws from 1915-1995. Daniel Cornwall at Free Government Information posts about how GAO entered an agreement to scan these documents

with a commercial partner [West] when the GAO office is within driving distance of a number of major universities and when public-spirited organizations like the Internet Archive and Public Resource might have been happy to come up with a solution to provide this taxpayer-funded information at zero cost to the taxpayers and either zero or minimal costs to GAO. Conceivably, there might have been some way for the Government Printing Office to incorporate this into GPO Access.

In regards to the West contract, several commenters have explained the reasons why this situation is deeply troubling:

Why would the GAO enter into a relationship giving a private commercial entity exclusive rights to this valuable public resource? … As far as I can tell, no one from either the GAO or Thomson West has responded to the concerns raised. Robert J. Ambrogi at Legal Blog Watch

Wholesale privatization without a careful, public examination of other, more citizen-friendly, alternatives is not acceptable. Daniel Cornwall at Free Government Information

Locking up these documents is ‘a cautionary tale for any government agency that wants to leverage its records with the help of private enterprise.’ Simon Fodden at Slaw.ca

Fortunately, “rogue archivist” Carl Malamud has made documents relating to the GAO legislative histories available, including a website/ad that has

[West] go[ing] so far as to boast that you should purchase this exclusive “product” from West because the GAO law librarians (public employees!) have done all the work for you!

Unfortunately, this is far from the only example of a private company locking up public domain materials created by a government agency, due to the value of those materials. For example, the OpenCRS project (and others) attempt to make available Congressional Research Service Reports that as a whole are only available from commercial vendors ( Penny Hill Press, LexisNexis, and CRS documents). We the taxpayers are spending over $100 million a year on the production of these reports by government employees — yet we do not have comprehensive access without paying. The House bill introduced to open these reports to the public, H.R. 2545, has had no action since the date of introduction.

Think about how this bizarre situation has turned public domain on its head – a government employee has created public domain documents, a company has acquired them, and the public now needs to go through that company to see those documents. And if you are a subscriber who has paid for access and then you attempt to download all of those public domain documents to make them publicly available – look out! If you do this, you’ve likely violated your contract / license with the company to access those public domain documents, even though those public domain documents have no copyright protection. The commercial vendor considers the license to trump public domain status.

Now if you think locking up materials with exclusive deals is bad, consider being told that government documents are accessible, yet they are not! A year ago, I posted An Open Letter to Google, William Patry, and Google’s Library Partners regarding the amount of public domain materials that according to Google’s own policies should be available for download.

Some of the documents I discussed that should be available are:

These types of documents are still not available. One of the examples given by the Prelinger Library over two years ago of a document that ironically was not available — was the law itself. The specific version of the copyright law mentioned on the Prelinger blog that was digitized September 2005 from the University of Michigan? Still not available as of today!

U.S. Copyright law — yes, the law itself and government documents regarding it– are still not freely available on Google Books here, here, here , and I could go on. I ironically love the copyrighted material notice on this snippet view of Circular 92 — the Copyright Office’s publication of the law.

Since these documents are in the public domain, yet tied up by Google who can we go to correct this? Obviously, my post last year and the complaints of others didn’t do enough. Last year, in addition to posting, I contacted some of the partner libraries — the response (mentioned here) was it was Google’s responsibility to make those documents downloadable.

Siva Vaidhyanathan has frequently written about the dangers of trusting Google too much (see The Googlization of Everything) including in regards to Google Book Search:

We could solve each of the problems [of difficulty of finding materials in books, exclusivity of research sources, and the public’s unwillingness to use print sources] without Google, although it would take a deep commitment from the public and its institutions to make good information more accessible. … Google’s is still the most ambitious plan, however, and its much bolder venture into the world of print offers us at least three reasons to worry: privacy, privatization, and property.

An additional wrinkle to this already complicated situation is “If government documents are freely available can we trust their accuracy? And can we cite them?”

The American Association of Law Libraries (AALL) last year published a report through on authentication of online state legal resources. The results are startling:

Of the five states (Alaska, Indiana, New Mexico, Tennessee, and Utah) which give official status to their online legal resources, none are authenticated and only Utah requires permanent public access. (emphasis added)

While there are many new upstarts trying to make government information available to all (AltLaw, Precydent, PublicResource), because these new services do not provide government documents that are authenticated or published on a trusted vendor (Lexis or Westlaw), these documents aren’t citable in court filings (due to citation rules). Therefore, attorneys and the public still need to rely on paid services to public domain government documents.

Ian Gallacher has suggested a radical solution to the reliance on paid access to court cases and statutes, stating that law schools collectively take up the mantle of assuring that all of the legal public domain materials are available to all. He admits that this will be a struggle; after all, West fought to have its internal pagination system recognized as copyrightable.

But can we continue to rely on companies to allow access to what belongs to us all? I don’t think that is a safe bet to make. There is nothing wrong with non-profit organizations, government entities, and for-profit companies all having access to these materials. I would not want for-profits to be shut out of the marketplace because they should continue to provide value-added services, such as annotations, unique search functions and organization, and people-written analysis. As Jim Jacobs on Free Government Info states,

“The problem as we see it is that so many agencies seem ignorant of the fact that privatizing access to said digitized public domain information actually limits access in the long run.”

Siva Vaidhyanathan’s statement about Google applies more generally to the present status quo leaving the responsibility for access to public domain materials in the hands of companies:

The process of privatization is particularly troubling. Of course, we should not pretend that libraries operate outside market forces or do not depend on outsourcing many of their functions. But we must recognize that some of the thorniest problems facing libraries today — paying for and maintaining commercial electronic databases and cataloging services — are a direct result of rapid privatization and onerous contract terms. … The long-term risk of privatization is simple: Companies change and fail. Libraries and universities last. Should we entrust our heritage and collective knowledge to a business that has been around for less time than Brad Pitt and Jennifer Aniston were together? A hundred years from now, Google may well not exist.

For U.S. citizens, it is the responsibility of us all to push to make public domain documents accessible to us and resist privatization of public domain materials.

*Government works created by the U.S. federal government are not protected by copyright; instead these works (with limited exceptions for materials withheld for security, export control, and policy reasons) are in the public domain.

**Bias statement: I use products by Lexis, Westlaw, and Google every day, due to their usefulness to my work and personal life. These companies have a stated responsibility to their shareholders, not to the United States public.