Issue No. 28
October 10, 2002
Paula Kaufman, University Librarian


Cong. Boucher (D-VA) and Cong. Doolittle (R-CA) introduced legislation last week that reaffirms fair use in the digital age and in particular, addresses key concerns with the

anti-circumvention provisions of the Digital Millennium Copyright Act. The bill, which is called the "Digital Media Consumers' Rights Act of 2002" (DMCRA), proposes three key changes to troublesome sections of the Digital Millennium Copyright Act of 1998. These changes would

· Bar the anti-circumvention provision of Section 1201 and only prosecute those individuals with intent to infringe as in the rest of the copyright law;

· Not criminalize anti-circumvention tools when the tools have substantial non-infringing uses; and

· Broaden allowances for anti-circumvention research.

DMCRA focuses on many concerns of consumers and may not seem directly related to library activities and library copyright exemptions. However, this bill is a necessary first step to recognizing the rights of copyright users. In addition, broad support of DMCRA will put a damper on other legislation aimed at regulating digital technology and mandating restrictive anti-copying technologies.

Rep. Zoe Logren (D-CA) introduced a bill in the House, the Digital Choice and Freedom Act, which is designed to restore the fair use rights repealed by the DMCA. Her bill would allow copying legally obtained digital content for personal back-ups and for use on different devices. It would free consumers to sell or loan their copies to anyone, just as they can with print media. It would also nullify non-negotiable shrinkwrap licensing terms and permit circumvention in pursuit of their fair use rights.

The two bills are independent but show a bipartisan willingness to reverse the damage caused by the DMCA and restore balance to U.S. copyright law.


President Bush is expected to sign a bill, passed last week that would open the door for professors to use some copyrighted works in online courses without having to seek permission. On Thursday, the Senate approved HR 2215, a bill authorizing spending for the Department of Justice. The bill includes a provision that would ease copyright law for online education. The House of Representatives passed the same bill the previous week. The legislation would amend the Copyright Act of 1976 so that online-education instructors could use excerpts from recordings of dramatic literary and musical works -- such as plays, musicals, and operason course Web sites without seeking permission from the copyright owners. Under current law, only non-dramatic literary and musical works can be used in online courses without permission. Most copyrighted works can be used in their entirety in a traditional classroom setting without permission.

The language was originally part of S 487, a bill called the Technology Education and Copyright Harmonization Act, or TEACH Act.



Yesterday, Stanford Law professor Lawrence Lessig had his day in court when he argued for the plaintiff in Eldred v. Ashcroft against the copyright term extension exacted by the Sonny Bono Copyright Term Extension Act in 1998. Hadn't Congress granted copyright extensions numerous times since the country's earliest years, the Justices wanted to know. Didn't this challenge to the latest extension necessarily call into question the validity of the major rewriting of federal copyright law in 1976? Wouldn't the result of accepting Professor Lessig's theory mean "chaos" in the world of intellectual property, Justice Stephen G. Breyer asked. That was possible, Professor Lessig conceded.

The basis for Professor Lessig's challenge to the Copyright Term Extension Act is the text of the clause in Article I, Section 8 of the Constitution authorizing Congress "to promote the progress of science and useful arts" by issuing copyrights for "limited times." The first federal copyright law, enacted in 1790, provided for a 14-year copyright, renewable for another 14 years. The new law extends individual copyrights to 70 years after the creator's death and copyrights held by corporations to 95 years.

Not only is this the functional equivalent of a perpetual copyright, Professor Lessig argued, but extending existing copyrights fails to serve the constitutional purpose of promoting creativity.



In a frank discussion late last month, titled "An Emerging Crisis University Publishing and the Humanities," Duke University Press Director Ken Wissoker detailed the economic plight of university presses. At the core of his talk a changed publishing landscape has made book publishing an increasingly difficult proposition for university presses. "Book publishing needs to be a business," explained Wissoker. "But book publishing centered on the humanities and social sciences will not break even, no less be profitable, without to a greater or lesser extent making the publishing of academic work a secondary priority." In other words, when it comes to publishing an exciting but obscure thesis as a book or a more mainstream and thus economically viable topic, economic reality will dictate publishing the lattereven though university presses are designed specifically to publish work of scholarly rather than commercial import.

Publishing at Duke, Wissoker said, generates roughly a $1 million deficit annually, which is subsidized by the press's journals division, an arrangement that is quite common in university press publishing. Wissoker blamed a number of forces hindering the successful publishing of books, not the least of which the consolidation of the bookselling industry, the disappearance of independent booksellers, and shrinking

book review pages in publications. Despite detailing the increasingly difficult economics of university press publishing, Wissoker also was adamant that university press programs are vital to academe, and should remain so. "There ought to be a commitment to publishing as integral to the academy," stated Wissoker, who downplayed the notion of electronic publishing efforts serving as cost-effective solution to the ills plaguing scholarly publishing. As for how to continue to subsidize scholarly book publishing,

Wissoker made a simple point "It's a common good, let's find a common way to support it...these are solvable problems if the resolve and resolution is there, if we can agree that scholarship is too important to lose." To read the full text of Wissoker's speech, visit http//


Toby Mundy, publisher of Atlantic Books, takes on the state of publishing and bookselling in the latest edition of Prospect. He contends that this is a golden age and that publishing has never been better. But, at closer look, the article reveals a predictable anxiety about the future. To Mundy, the new media digital, audio, and the computer are the Visigoths of the IT revolution who have already swept through reference publishing and are now threatening to sack the eternal city of general trade publishing. http//


Walt Crawford offers the following succinct summary of the scholarly-access problem More new scholarly journals keep appearing, and most scholarly journals are now published by highly profitable commercial publishers who usually raise prices faster than inflation. The combination means that most academic libraries are increasingly unable to acquire the journals their faculty and students need, and many libraries have slashed book acquisition in a hopeless effort to keep paying for serials. Electronic access may (or may not) improve the situation, but brings with it a host of unresolved issues for long-term availability. And the bottom line of these calculations most institutions therefore find themselves less and less able to provide their users with a high level of access to scholarly literature. Conclusion Most scholars do indeed end up with less access to the literature of their field than they did in the past. http//


Siva Vaidhyanathan writes about the changes universities are undergoing because of the rise of powerful information technology and the widespread belief in its transformative power and inevitable profitability. He argues that they have become eager accomplices in their own corruption. As universities establish information policies ranging from blocking peer-to-peer file-sharing systems to licensing course Web sites, they make political decisions that have effects beyond their campuses. "Universities are steadily abandoning their role as national parks in the information ecosystem in favor of changing themselves into ‘content providers." This position has already prevented them from standing up to some overwhelming threats to their operations, specifically the 1998 Digital Millennium Copyright Act. Since 9/22/01, few presidents of major universities have stood up to defend the virtues and practices of basic science and research and the free flow of information in the face of panic-fueled governmental restrictions on libraries, scientists, and foreign scholars. "The American research university is being held captive and mute, afraid of disturbing the interests on which it increasingly depends." Read Vaidhyanathan’s article at http//


MIT is sharing a first sampling of course materials from MIT's Faculty through its OpenCourseWare initiative. It invites educators around the world to draw upon the materials for their own curricula, and encourages all learners to use the materials for self- study. Charles Vest, MIT’s President has this to say MIT OpenCourseWare reflects the commitment of the MIT faculty to advancing education by increasing access to their academic materials through the Internet and the World Wide Web. We believe that with modern communication technology we can not only transmit information but also stimulate and enhance the deeply human, person-to-person endeavor of education.

We hope the idea of openly sharing course materials will propagate throughout many institutions and create a global web of knowledge that will enhance the quality of learning and, therefore, the quality of life worldwide. We are opening our pilot to the public for review and feedback. It contains a sample of MIT courses, offering an early look at the content and design of OCW. As we pursue our intensive work to find the most effective way to make OCW a valuable resource for all who use it, we will continue to add courses, until virtually all are available.

The William and Flora Hewlett Foundation and the Andrew W. Mellon Foundation have helped fund the initiative. http//


In the September 15 issue of Library Journal, Roy Tenant reviews recent work on institutional eprint archives, focusing on the different ways in which different archives take different approaches, such as the software for creating the archives, implementation models, economic models for long-term sustainability, regulating the metadata vocabularies, and allowing removal of works from the archives at the author's request. "Although the software and implementation model that an institution chooses to employ is still anyone's guess, the likelihood that universities and research institutions will implement something is increasing. Institutional repositories fill an important void and are likely to remain a part of our information landscape. They provide much better access to a literature than has ever previously been possible and should be a no-brainer for most academic institutions." http//


A new study from KPMG argues that the content industry should focus on developing new business models rather than locking up intellectual property. While it is fighting (and losing) the wrong battle, it is losing billions in revenue. "Rather than embracing the Internet as an inexpensive means of delivering top-quality creative content to the consumer in a highly customized format, industry executives remain mesmerized by the destructive potential of online piracy." KPMG is a pro-business tax and financial consulting firm.



"Web Thumbnails," created by the Palo Alto Research Center (PARC), are sets of small screenshots of Web pages that give you a feel for how relevant a document’s text is to your search, in contrast to search engines such as Google which return text summaries. To get an idea of how it works, go to the demo at http//


Dave Eggers, author of the bestselling A Heartbreaking Work of Staggering Genius, has published a new novel but don’t rush to a major bookstore to buy a copy. In what has been described as either courageous entrepreneurship or vainglorious folly, Eggers has eschewed the normal publishing route taken by writers of his stature and issued the novel himself. You Shall Know Our Velocity, which tells of two young Americans who travel the world trying to give away money, is only available at independent bookshops across the US and from McSweeney's, the New York- based magazine and website founded by the writer. Just 10,000 copies of the book, printed in Iceland and then shipped to a warehouse in Boston, are available at $20, around $10 less than the price charged by mainstream publishers for books by authors of Eggers's stature. Eggers is rather downbeat about his approach. 'It might work on this scale; it might not - we really have no idea,' he said in a recent interview. 'I think that if you care about writing, then you care about how it makes its way into the world, and self-publishing is one good way to make sure it comes out the way you'd envisioned. But we'll see. It could all go horribly, horribly wrong.' That is the outcome desired by some members of the mainstream publishing industry who see Eggers’ latest venture as a quixotic attempt to undermine their dominance of the book world. Others see the author's move as another signal that the publishing industry is undergoing a revolution. They include Jason Epstein, co-founder of the New York Review of Books. A former Random House editor and innovative figure in the New York publishing world, Epstein is the author of Book Business, which foresaw the demise of the publishing industry in its current form. Inflated advances for big-name authors, ever decreasing profit margins and the emergence of new technologies will mean an end to retail giants such as Borders and big publishing houses. Taking their place will be smaller enterprises with fewer overheads and more immediate access to the reading public, like McSweeney's and the growing self-publishing industry, Epstein argues.

Another threat to publishing's behemoths comes from Epstein himself, who is a partner in a company developing what is effectively an 'ATM for books'. The photocopier-sized machine, invented by a St Louis- based car engineer, Jeff March, can take a digital file, print it and bind it into a paperback book within minutes. Such machines could be up and running in the developing world within two years. Retailers and publishing firms in the West will do as much as they can to stall the development of this technology in North America and Europe, Epstein predicts. 'But eventually the publishing world will see that it works and will have no choice but to accept it. The horse and buggy trade did whatever it could to discourage the automobile, but eventually the automobile proved its point.' http//,6109,796592,00.html

You can purchase Eggers’ book at http//


Scientists have harnessed the power of grid computing to seek a cure for AIDS, search for alien life and map the human genome. Now researchers are assessing ways to tap massive amounts of computing power to preserve some of American history's rarest digital relics, from Ansel Adams’ photographs to original drafts of the Declaration of Independence. The Library of Congress is evaluating grid technology developed at the San Diego Supercomputer Center (SDSC) to preserve and manage the library's digital collections. Its American Memory project is one of the largest digitized archives of U.S. history, with more than 7.5 million digital records from collections of manuscripts, books, maps, films, sound recordings and photographs. The Library is evaluating how emerging data grid technologies, such as SDSC's Storage Resource Broker (SRB) data grid software, can be used beyond the lab. Grid technologies may help the library decide how to preserve the integrity of its collections when underlying technology changes.

While infrastructure components will inevitably change over time, data grid technologies could help preserve digital records indefinitely. With 6 petabytes (6,000 terabytes) of storage capacity, the San Diego Supercomputer Center has plenty of room to store the 8 terabytes of American Memory's digital data, plus additional records as the collection evolves over decades, or even centuries. But the effort goes beyond just preservation. The library will also explore how emerging data grid technologies can be used to repurpose its collections. Repurposed content can allow users to generate new perspectives of digital holdings. http//,1294,55509,00.html


Readers of this newsletter will remember earlier reports about the Digital Promise. Its promoters haven’t been sitting idle. This September, the Digital Promise Project assisted the U.S. Departments of Commerce and Education in organizing a Summit conference on "Transforming Education and Training through Advanced Information Technologies." Introducing a series of "2020 visions" papers commissioned for the Summit, Commerce Secretary Donald Evans said, "Powerful new technologies now under development by US businesses, universities and government promise to transform virtually every industry…create rich and compelling learning opportunities that meet all learners' needs, and provide knowledge and training when and where it is needed, while boosting the productivity of learning and lowering its cost. Successful development and deployment of these technologies in education and training could have a profound effect on American competitiveness and our standard of living." Participants in the Summit, from the worlds of education, libraries, science, government, museums, the arts, the business community, and the defense department concluded that we need a major, well funded research program in the use of IT in education, with all key Federal agencies participating." The summit agreed, as well, with the Digital Promise project concluding that a major public and private sector effort will be required to provide "our only assurance that new generations of Americans will be sufficiently skilled and intelligent to keep our economy strong, our society stable, and our future secure." Undersecretary for Technology and chief of staff of the Commerce Department Phillip Bond pledged to lead the effort to pursue such an undertaking. More at http//


Microsoft Corp. thinks it's found a killer app for its Tablet PC as a home for a new breed of electronic magazines. The software giant is preparing an end-to-end electronic publishing solution, known as ePeriodicals, which it will introduce at its Tablet PC launch in New York City on Nov. 7. The technology is being developed by Microsoft's eMerging Technologies unit. ePeriodicals comes out of the advanced reading team, the unit that has championed Microsoft's ClearType online-font technology and the eBook Reader products. ePeriodicals technology will allow developers to create complex documents, like eMagazines, that can be read on a variety of devices, including the Tablet PC. The technology will manage the full publishing processfrom the layout and creation of the documents; to their full editing life cycle; to their delivery via a push-type online subscription mechanism, say sources familiar with the plans. ePeriodicals is built around a new rendering engine that will make use of the next-generation ClearType technology that is built into the Tablet, as well as of the souped-up eBook Reader that is integrated into the Tablet PC operating system. ePeriodicals also will provide a set of automated layout tools for template creation and automated file creation, sources added. Microsoft is hardly the only vendor that is looking for the key to unlock the digital magazine publishing world. Zinio, NewsStand and qMags all offer software and/or services that allow publishers to create and distribute electronic versions of their existing print magazines. http//,3668,a=31728,00.asp


We've written recently about a few prominent deep linking controversies. Deep linking is the practice of one Web site linking to another site's internal pages, bypassing its main page and often its advertisements - a practice that many site owners object to. Now it's been taken a step further, to what might be called deep searching. Savvy American genealogists know about a valuable database of Ellis Island immigrant arrival information that was put on the Web last year by the Statute of Liberty-Ellis Island Foundation. They also know that the search interface isn't always easy to work with.

An electrical engineer, named Stephen Morse, built a better interface that could query the foundation's data in a different way. He didn't charge users to access the search engine, but his interface did bypass the foundation's user registration offers and pleas for donations. The foundation has accused Morse of stealing data and he has shut down his search tool. A classic Internet impasse - demand for content from eager users, combined with creative ways of accessing it, all held up because a content owner hasn't applied the best technologies or found the right business models to make it available. It's a microcosm of the entire content industry, which has tended to focus more on how it can build walls around its content than on how it can leverage the Internet to get its content in the hands of people who need it. (Outsell 9/20/02)

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