Sunday, November 18, 2018

An "Alice In Wonderland" World.

Cyber "space" is in Iceland. Iceland is also home to the Dark Web. Or so "they" say.

The "cloud" may be in the bowels of a big barge, or in Maiden North Carolina , or perhaps under the control of Amazon Web Services, or in a large and environmentally unsound building in a desert, sucking up vast quantities of water (for cooling), and drawing in power, and emitting who knows what.

What goes around, comes around. Do you remember the pirate radio ships of the 1960's: Radio Caroline, and Radio North Sea International? Did you see the movie "The Boat That Rocked" aka "Pirate Radio"?
Thinking of these seaworthy (possibly) floating server farms, one would be forgiven for thinking that the more things change, the more they stay the same. It's just not all the sound of a needle on spinning grooved vinyl any more.

Until recently, modern pirate "ships" enjoyed safe harbors, especially those they were able to construct and hollow out within the DMCA. David Lowery discusses the safe harbor provisions of the DMCA (Digital Millennium Copyright Act) as a virtual "island" nation in which the consent of the persons who are governed by the elites is not necessary.

If administrations become less friendly, as they have since the European Copyright Directive and Article 13, the pirate party moves offshore, or to a pirate utopia.  Chris Castle discusses the TAZ.

Free stuff... isn't free. Someone always pays for it. Sometimes, the redistribution of the cultural wealth goes from the starving artist to Silicon Valley, or to profiteering politicians.

Georgia State University appears to have thought it could reduce the cost of a college education by stiffing authors. Since 2008, GSU has had a lot of support.

Andrew Albanese explains for Publishers Weekly readers how (and this is a loose paraphrase... not his drift) Georgia State University professors deliberately and systematically offered students pirated (unlicensed) digital copies of assigned reading materials as a way to avoid paying for legal, licensed course packs.

IMHO, it's a case of professors teaching piracy by example to generations of students.

Authors Guild shares an important perspective "Are Electronic Course Packs Fair Use?"

As the Authors Guild explains, academic authors have seen their income from text book work evaporate as other colleges and universities and schools have followed the bad example set by GSU, particularly after GSU's two court victories wherein the district court judge, Orinda Evans, even awarded the university's legal costs to be paid by the publishers who sued in 2008 over the alleged copyright infringement.

Not only losing a complaint of copyright infringement, but also having to pay the alleged infringer's legal costs is --or would be-- a truly chilling effect on copyright and the business models of academic authors and publishers.

Authors Guild points out an important factor in copyright law that none of the courts appear to have weighed appropriately, and that is the potential effect of copying works or portions of works on future markets for the works.

Legal blogger Mark Sableman for Thompson Coburn LLP identifies another nuance in the Fair Use wording in  Section 107 of the DMCA that perhaps the GSU courts overlooked. That is, the meaning of "include".

To extrapolate, "include" does not mean "comprise solely of these four...", it means "among other considerations in addition to these four...."

"Fair Use Isn't Arithmetic" is well worth reading.

As he says, each excerpt that was included in the course pack ought to have been reviewed individually and holistically.  What he does not spell out is that 10% of text book X, might have been 25% or 50% or even 100% of Author Y's contribution to the multi-author work that made up text book X.

Does stiffing a publisher matter? Yes. Look at how many publishing houses have gone out of business or merged or been sold in the last decade. Look what has happened to the advances that used to be paid to authors.

Looking back to 2008, an observer may now infer that generations of teachers, professors, judges, lawyers, social media platforms and search engines have fostered a climate that leads reasonable persons to perceive that piracy is profitable, useful, fun, fair and without consequences.

"No Left Or Right When It Comes To Copyright"

According to the Authors Guild, between 2009 --one year after GSU's original success in claiming that the alleged academic copyright infringement was fair use-- and 2013 (a year after Orinda Evans first, erroneously, ruled in favor of GSU), piracy alerts to the Authors Guild have increased by 300 %, and alerts have increased another 76% on top of that, through 2017.

It remains to be seen what will happen next with Georgia State. One thing is predictable. Lawyers will win.

All the best,
Rowena Cherry

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