In the most anticipated Copyright decision this term, the Supreme Court today ruled, 6-3 (opinion by Breyer, dissent Scalia) that Aereo’s service for watching broadcast TV online violates the Copyright Act. Briefly: Aero operates a large number of tiny antennas. Subscribers pick a program they want to watch, and get exclusive access to an antenna. That antenna then receives the broadcast in question, sets it up on a private folder for that user in the cloud, and then streams it to him/her over the Internet. The broadcast networks sued, claiming that Aereo’s actions constituted an infringing public performance of their content.
There is and will be endless discussion about this case, because it may very well have enormous implications for cloud computing (the opinion tries very hard to limit itself: it includes an entire section about why it doesn’t apply to cloud computing, and the argument hinges on an analogy to cable TV and specific statutory language adopted in 1976 to deal with cable TV). But there’s something else more interesting, I think, under the radar. I sort of saw it in the opinion, but it came into sharp focus in Scalia’s dissent, so I’ll start there.
In case you hadn’t heard, it’s been a big week in intellectual property. The biggest news item in the non-legal press was the Patent and Trademark Office’s decision to cancel several of the NFL’s Washington Redskins trademarks because they were “disparaging.” This review and cancellation is required by statute, and the decision is generating a fair amount of First Amendment discussion, much of it incautious. On the Diane Rehm show today, for example, Bruce Fein went completely off the rails:
A few days ago, the Federal Court of Appeals issued a decision denying patentability to Dolly the Sheep. Dolly, as one will recall, was the first successful mammalian clone from an adult somatic cell. Essentially, researchers at the Roslin Institute in Edinburgh took an unfertilized donor egg, replaced the nucleus with one taken from a different animal, induced the clone egg to divide, and implanted it into a surrogate. Dolly thus came into the world with nuclear DNA identical to that of the sheep from which the donor nucleus was taken, although you could also plausibly say she had three “mothers:” the egg donor, the nuclear donor, and the surrogate.
The company never pursued the concepts discussed in the patent beyond
our Family Traits Inheritance Calculator, nor do we have any plans to do so."
But ethicists nonetheless attacked the proposed use of the technology, as well
as the decision by the US Patent and Trademark Office to approve it.
Writing in the Genetics in Medicine journal four scientists led by Dr Sigrid
Sterckx of the Bioethics Institute in Ghent, Belgium, said: "It is
clear that selecting children in ways such as those patented by 23andMe is
hugely ethically controversial."
We know that when we publish with commercial presses (and we should include most university presses here, IMO) we are content providers in the knowledge industry. Let's follow the trail with a simple example.
1) Routledge prices their Philosophy of Race collection at $1185. 2) Routledge is part of Taylor & Francis. 3) Taylor & Francis is owned by Informa, "one of the world’s leading knowledge providers. We create and deliver highly specialised information through publishing, events, training, market intelligence and expertise, providing valuable knowledge to individuals, businesses and organisations around the world." BTW, should you wish to invest in Informa, here's their current stock price.
All that by way of saying I really need to read this book.
When I posted yesterday on the Springer contract, I did not mean to be suggesting an altruistic action, mine or anybody else's. Thus, I felt a bit abashed when "Anon. grad student" wrote: "I really admire your willingness to pass up a publication opportunity to make some progress in remedying the terrible copyright situation." That wasn't my intention at all.
Let me be clearer. I am at a stage of my career when my motivation to publish is simply to get my ideas out in the most effective possible way. As such, I face a very different set of incentives than a graduate student or untenured assistant professor. When I decided that I wasn't going to sign Springer's contract, my motives were completely selfish, and I did not mean to recommend my course of action to anybody else. At this stage of my career, self-archiving is important to me. That was my first thought. Secondly, my piece was a comment on somebody else's (Frances Egan's) work. (And I feel bad that I am inconveniencing her.) Had it been an original piece—as was my 2010 Philosophical Studies piece—I would probably have swallowed my bile and pressed on (though I would have resolved not to submit to Springer ever again). The point is that with regard to the 2010 piece, I didn't even read the contract, and didn't realize that I was imposing these limits on myself.
Despite many discussions on this blog and elsewhere, I was surprised finally to read the Springer contract. I had submitted a comment on a paper by Frances Egan given at the Oberlin Colloquium last year, and I received the copyedited version with instructions to sign the contract. The part I objected to read as follows:
Your article is protected by copyright and all rights are held exclusively by Springer Science +Business Media Dordrecht. The e-offprint is for personal use only and shall not be selfarchived in electronic repositories. If you wish to self-archive your article, please use the accepted manuscript version for posting on your own website. You may further deposit the accepted manuscript version in any repository, provided it is only made publicly available 12 months after official publication or later and provided acknowledgement is given to the original source of publication and a link is inserted to the published article on Springer's website. The link must be accompanied by the following text: "The final publication is available at link.springer.com”.
So: I have surrender ownership of my own work, . . .
Jeremy Gilbert (see also Monday's post) writes on the relation of social media networks and individualism; below the fold some reflections on his essay for the philosophy profession.
On the one hand we have a social logic which tends towards the promotion of egalitarian collective creativity. On the other, we have an ideology which demands that we remain commited to the liberal individualist obsession with our private, interior lives and our separability from all other beings. It insists that the outputs of all such creativity - and even the condition of possibility for those outputs - manifest themselves only as forms of private property: from the ‘transferrable skill sets’ which we ‘sell’ in the labour market [*] to the carefully-defined pieces of intellectual property that are the substance of the ‘knowledge economy’.... [**]
The back story is worth reading here, including this nugget: "In Bart’s role as Treasurer, he also conducted the tricky negotiations
necessary to get a credit card authorizer to deal with us. Eventually he
found a company that specialized in small operations. Although that
company appeared a bit disorganized—at some point it has us down as
“Theological Economics”—" [HT Hülya Eraslan]
Via Stefan Heßbrüggen on Facebook, an open letter from the UBC mathematician Greg Martin tells of his resignation from the editorial board of the Elsevier production, Journal of Number Theory. In the letter Martin tells of "Elsevier’s new policy that editors would receive $60 for every article they process" for the journal. Commenters react with hilarity, knowing the kind of lagniappe (Louisiana term for "kickback") that this would motivate.
But Martin's reaction to the apparent "bribery" this looks like brings us to the discussion below between Eric and Catarina on philosophical origin myths: are we priests or are we "knowledge-workers"?
I was chatting with Rebecca Kukla a couple weeks ago about things we would like to do with a second edition of Yo&Lo and the following general thought occurred to me. When it comes to books that people are interested in, we have roughly two distinct media forms for philosophical interaction. We have the printed book itself, and sometimes later printed articles and reviews. And we have lots of discussions - in conferences, symposia, classes, etc. The former are permanent, but fixed - non-dialogical. The latter are interactive and dialogical, but ephemeral. Once they are over, they exist only in the memory of participants. (And if we make a web-cast of the event, then it flips to the first category.
In light of recent discussion on "work for hire" contracts (here and here), a generous reader calls our attention to how The University of Michigan "supports the goal of having its faculty maintain core intellectual property rights when their scholarly works are published." See the University of Michigan Author's Addendum. You may view an explanation of how the Addendum works here.
We write to communicate an untenable situation facing the Harvard Library. Many large journal publishers have made the scholarly communication environment fiscally unsustainable and academically restrictive. This situation is exacerbated by efforts of certain publishers (called “providers”) to acquire, bundle, and increase the pricing on journals....
Since the Library now must change its subscriptions and since faculty and graduate students are chief users, please consider the following options open to faculty and students (F) and the Library (L), state other options you think viable, and communicate your views:
1. Make sure that all of your own papers are accessible by submitting them to DASH in accordance with the faculty-initiated open-access policies (F).
2. Consider submitting articles to open-access journals, or to ones that have reasonable, sustainable subscription costs; move prestige to open access (F).
3. If on the editorial board of a journal involved, determine if it can be published as open access material, or independently from publishers that practice pricing described above. If not, consider resigning (F).
Dear ...., thank you for relaying the correspondence from your legal team in which I am categorized as a "freelance contributor," and am asked to waive my moral rights as an author so that [name of publisher witheld for the time being] can, among other things, edit my contribution (with an example of going from 10K to 7500 words), without my consent.
The proposed contract and explanation represents a fundamental shift in the accepted relations between academic authors and publishers of scholarly work, proposing a new status for us, that of "freelance contributors." Consequently, I will have to propose an amendment to the contract before I sign.
Always trying to lead the nation in something bad, Louisiana has now come up with a policy in the University of Louisiana (UL) system allowing university admins to claim a share of royalties on standard scholarly publications as well as to require that university lawyers vet any publication contract (e.g., for articles and books) to see if they can claim ownership.
The best part? The "trust me" attitude the admins are putting forth. "You have to sign away your rights, but we won't be enforcing the claims which we've explicitly put in the policy we're adopting. Honest!"
Philip C. Williams, president of McNeese State since 2010, said that while the university system's intellectual-property policy appeared to give campuses "a broad window" in which to operate, he had no intention of demanding royalties from faculty members for traditional academic activities.
"We do not and would not expect any faculty member to share royalties" for books, articles, or artworks, he said in an interview on Tuesday. He said it might make sense for the university to formulate a campus-specific policy that makes that clear.