The short version: who has precedence, the CC NC clause or the First Sale doctrine?

The long version: First, a little background on the First Sale doctrine from Wikipedia (normal caveats apply):

The first-sale doctrine is a limitation on copyright that was recognized by the U.S. Supreme Court in 1908 and subsequently codified in the Copyright Act of 1976, 17 U.S.C. § 109. The doctrine allows the purchaser to transfer (i.e., sell or give away) a particular lawfully made copy of the copyrighted work without permission once it has been obtained. That means that copyright holder’s rights to control the change of ownership of a particular copy end once that copy is sold, as long as no additional copies are made. This doctrine is also referred to as the “first sale rule” or “exhaustion rule”… In 1909 the codification originally applied to copies that had been sold (hence the “first sale doctrine”), but in the 1976 Act it was made to apply to any “owner” of a lawfully made copy or phonorecord (recorded music) regardless of whether it was first sold. So, for example, if the copyright owner licenses someone to make a copy (such as by downloading), then that copy (meaning the tangible medium of expression onto which it was copied under license, be it a hard drive or removable storage medium) may lawfully be sold, lent, traded, or given away.

(For more detail, see this entry on copyright.gov.)

And now, a little background from the bottom of each and every Creative Commons license (for an example, see the bottom of http://creativecommons.org/licenses/by-nc-sa/3.0/):

Your fair dealing and other rights are in no way affected by the above.

To be more specific, from the Legal Code version of the license,

2. Fair Dealing Rights. Nothing in this License is intended to reduce, limit, or restrict any uses free from copyright or rights arising from limitations or exceptions that are provided for in connection with the copyright protection under copyright law or other applicable laws.

Clearly, Creative Commons does not mean for their licenses to interfere with the limitations on copyrights granted us elsewhere, like our rights under the First Sale Doctrine.

Now, let me try to string these beads together here.

Someone, say MIT OCW, grants me permission to make a copy of some of their materials subject to the terms of the CC By-NC-SA. Let’s say it’s a collection of biology video lectures from Eric Lander, who President-elect Obama has just named co-chair of the President’s Council of Advisors on Science and Technology (congrats!). I’ll burn these to DVD so that they won’t take up space on my hard drive, and use them as a free replacement for a textbook to study for the biology class I’m taking this term.

Now I find myself in possession of a copy of Prof. Lander’s materials, which I have obtained legally. When the semester is over, do I have First Sale rights to this copy of Prof. Lander’s work?

Let’s think about it in terms of textbooks. They are fully copyrighted. All rights reserved. At the beginning of the semester, I obtain a copy of the book through legal means. At the end of the semester, when I no longer want the textbook, First Sale means I am free to sell that copy of the textbook for whatever price I can get.

Now what about my DVD? (Remember, I didn’t buy a textbook for my class.) Having obtained this copy of Prof. Lander’s work through legal means, now that the semester is over, does First Sale mean I am free to sell my DVD? Can I sell this copy of an NC-licensed work?

If not, isn’t something very wrong?

If I can’t sell the DVD, it means that somehow the limitation on copyright that applies to an All Rights Reserved work does not equally limit the copyright of a Some Rights Reserved work. Shouldn’t the First Sale limitation that applies to All Rights Reserved works also apply to Some Rights Reserved works?

This question can be asked in a more basic way. When I download a video from MIT OCW, do I own that copy of the video? If so, it seems that First Sale limitations apply and I am free to later sell that copy.

If not, then I don’t actually own the copies I make of CC-licensed materials? If not, a CC license is actually a EULA or clickwrap license that gives me permission to use a copy but should make it clear (but doesn’t) that I don’t own the copy?

The surprise: Is the First Sale doctrine a hole in the NC clause big enough to drive a truck through? It may not be, but I would sure like for someone who knows more about the statute and the case law to explain to me why not.

Happy New Year!

But if a professor’s lectures are copyrighted, aren’t students already infringing just by taking the notes in the first place?

Yes, Sullivan answers, student notes do infringe, but they are protected infringement.

Ever wonder why students hate teachers? Try telling your students that their class notes infringe your copyright.

We may assume that Prof. Moulton’s / Faulkner Press’s understanding of fair use, or “protected infringement,” is restricted to educational circumstances. The use of student notes from his class for profit-making purposes is all that bothers them. And surely that’s appropriate, right?

Then, once students graduate and go on to employment, what should happen to these class notes whose infringement was once protected? When students take these infringing notes out of the educational setting and into the workplace with them for “review,” surely the protection those dastardly, infringing notes enjoyed in the dorm room finally disappears, doesn’t it? If a graduate is hired by a company, and course-related information makes it’s way into the corporation, that organization might financially benefit from the professor’s intellectual property – without the professor’s or publisher’s permission and without the professor or publisher receiving any compensation! Oh, the humanity! This growing crisis in the academy leads me to ask:

What can be done about the slow, leaking escape of faculty knowledge out of universities via graduating students?

In other words, how can we isolate and contain faculty intellectual property, so that enough students pass exams that our departments maintain their accreditations, but we guarantee that students leave with no more information or expertise than they entered with?

Oh, wait. THAT’S THE WHOLE FREAKING POINT OF THE UNIVERSITY.

The teaching act is a sharing act. I’ll say it again. The teaching act is a sharing act. To hold the sacred title of “faculty” means to be a person who dedicates his or her life to making sure that every student you come in contact with takes with them as much of your knowledge, skills, expertise, and positive attitudes as possible when they graduate. It means to work to facilitate and mediate student learning. It means to enculturate those students as deeply into your professional community and practice as possible. There is simply NO place for selfishness, for withholding, for secrecy, or especially for threats of legal action against students for taking, sharing, or even – gasp – selling – class notes. If it helps students learn what you’re tying to teach, why would you interfere???

The only answer can be that student learning is no longer your first priority. And that’s sad.

The distinctions will slowly become clearer and clearer. The “free market” of student registrations will declare open educators who truly teach and share of themselves with students to be the winners, while the intellectual misers will be left to sit alone in their ivory towers counting their publications, unable to understand why students no longer sign up for their classes (or attend the universities whose policies uphold these attitudes) and unable to understand that they don’t own the copyrights in their publications – the publishers do.

It’s unclear how much of this lawsuit is Moulton’s publisher, and how much of it is him. We expect this kind of behavior from publishers. Let’s hope that Moulton is just caught in the crossfire here. But if a person is concerned about protecting their intellectual property, teaching just isn’t the right profession for them. They need to find a new one.

Chevalier, the author of Girl with a Pearl Earring who also chairs the London-based [Society of Authors], said that her members were deeply concerned that the publishing industry was failing to adapt to the digital age….

Ms Chevalier told The Times that the century-old model by which authors are paid – a mixture of cash advances and royalties – was finished. “It is a dam that’s cracking,” she said. “We are trying to plug the holes with legislation and litigation but we need to think radically. We have to evolve and create a very different pay system, possibly by making the content available free to all and finding a way to get paid separately.”

The phrase “We are trying to plug the holes with legislation and litigation but we need to think radically” should be the warning bell for all industries – including education – trying to make their way into the current century.

Some, disliking the business practices of commercial software suppliers and publishing houses, want to replace copyright with open licences. Some want to allow anyone to profit from the work of others without even telling them they are doing this. Despite the resistance to copyright by some open licence supporters, open licences are legal tools that use copyright law to achieve their objectives. It follows that for understanding open licences legal analysis is at least as important as ideological commitment.

The implication of the first sentence is that some people who support open licenses want to do away with copyright. I’ve met hundreds of people who support and even evangelize the use of open licenses, but I’ve never met one who thinks that it should be legally impossible for authors to protect their creative works.

It is true that many supporters of open licenses think that there are fundamental problems with copyright law that need to be fixed. Many feel that the Berne Convention requirements for the automatic copyrighting of all creative works the moment they are fixed in ‘tangible’ form should be reversed. When you count ~all~ the “creative works” in the world – including things like children’s crayon drawings – it is clear that the vast majority of creators never intend to protect or commercialize their works. So the majority of creators are burdened for the sake of the minority of creators. If my creative works weren’t automatically, unavoidably “protected,” I would be able to share them as part of the public domain without needing to resort to legal machinations. It says something disappointing about our civilization that hoarding is the assumption and sharing is assumed so rare that a lawyer’s help is needed to do it.

However, the more subtle point that I believe the rest of the paragraph is trying to make is that without copyright protection open licenses are meaningless. Licenses only work in the context of copyright law. Saying that you want to replace copyright law with open licenses is like saying you want to replace a fish tank with a fish. The fish can’t live without the tank, and open licenses don’t function outside the context of copyright law. I wish more people understood this point… Perhaps OER supporters who are serious about these issues will sign up for UOC’s Master in International Copyright law…

Even though I can’t understand what he’s been saying to me for the last year, he still pushes me around mentally and makes me think and write. You simply have to love someone who does that for you. Commenting on Jennifer’s blog, Stephen asks:

Why does David Wiley think that open education is commercial education? It is not enough to say that the licenses are incompatible – this is only a problem for commercial exploiters of free content.

This comment is completely incomprehensible to me. When a group of learners who are in no way affiliated with a company or any other for-profit organization are prevented from remixing OERs by the copyleft provisions in the GFDL and the CC-By-SA or the CC-By-NC-SA, how is it that this is only a problem for commercial exploiters of open content? Stephen, please explain to me! I really do want to understand! Are you saying it’s ok for these learners to violate the license terms, because no one will care since they’re not making any money? Commercial or not, the copyleft clauses prohibit literally anyone and everyone from remixing GFDL materials with any CC materials licensed with the SA clause. This is why no one, commercial entity or not, can remix Wikipedia content with MIT OCW content. So how is this incompatibility only a problem for “commercial exploiters,” aka companies? Because kids won’t ever want to remix materials? Or because kids would never want to remix Wikipedia materials (GFDL) with MIT OCW materials (CC-By-NC-SA)? Or MIT OCW materials (CC-By-NC-SA) with Wikieducator materials (CC-By-SA)? Or Wikpedia materials (GFDL) with Wikieducator materials (CC-By-SA)? Too bad if anyone wants to, because they can’t. So Stephen’s post on Jennifer’s blog befuddles me.

And, while I’m asking Stephen to explain things to me, why is it that he seems to think “open” should really mean “closed?” In other words, why is it that “open” should mean “open to everyone except for some people” – specifically, companies? Why should we exclude anyone from what we’re trying to do? Stephen has talked before at length about how corporate participation in open education will be worse than no participation from corporations at all. Of course, this hasn’t been the case for RedHat and Linux, and it won’t be the case for open content and commercial publishers who get involved in it. But let me give an example. A while back, when I wrote about how the ambiguities and vagaries of the NC clause were scaring people away, Stephen responded:

Now you might say that I am actually limiting distribution by taking this attitude [of not caring if the NC clause scares away some people who might use open content]. Because, after all, I am lowering the number of people who could be distributing material. Because you support both free and commercial access, while I only support free access.

If this were simply a case of adding the two together, I would agree. But I would argue that the commercial use of content actually impairs the free use of that content. In other words, the access allowed by a commercial plus free access is less than the access allowed by free access alone.

There are many reasons for this.

And now let me take his points in turn:

• The commercial sector, for example, lobbies against funding for the free sector (cf. the lobby against the BBC, for example) as ‘unfair competition’.
• The commercial sector creates and lobbies for restrictions and conditions that make the distribution of free assets difficult – mandatory DRM standards, for example, accessibility requirements, or in our field, IMS specifications.

These statements are probably both very true. But neither of these lobbying activities will increase or decrease in correlation to commercial companies’ abilities to distribute open content, and so these are completely irrelevant.

• The commercial sector limits use of content by trademarking it or patenting it (for example, the animal images used on O’Reilly books are public domain, but only O’Reilly may use them on tech books, at least according to O’Reilly).

A little background in responding to this point. You may be surprised to hear this – but I am not anti-copyright; that is, I do not believe we should abolish copyright. I believe the incentive created by a limited-term monopoly on copying and distributing encourages lots of people to do things they would never otherwise do. I am, of course, a strong advocate of a significantly shortened term of copyright. I don’t know how you continue to encourage Walt Disney to produce creative works 50 years after he has passed away.

Stephen’s point about trademark pulling things out of the public domain is partly true. To briefly quote a nice paper on the subject by Zorich, “trademark does not grant an exclusive monopoly on use; instead, it grants the trademark holder the right to use the trademarked item as a means of distinguishing its goods or services in a commercial marketplace.” So O’Reilly protecting the use of public domain images on the cover of a technology book doesn’t prevent you or I from using them on our website, putting them on T-shirts, or doing anything else with them. It only prevents you and I from using them on the cover of our own technology books, which we would likely do to try to confuse the public about the origin of the books. So the trademarking of a public domain work in a specific market (like technology books) does prohibit one specific use of the public domain work. But it does not prohibit any others. And frankly, I don’t have a problem with that. I think it falls in the incentive category I mentioned in the previous paragraph. O’Reilly puts a lot of brain power and resources into their marketing. Why should I be able to come along and both (a) confuse the consumer and (b) ruin their reputation with a shoddy book that looks like they produced it?

There are three possible choices when it comes to using a public domain work as a symbol for your product – whether for-profit or otherwise (let’s keep in mind that not-for-profits trademark slogans and artwork and other things as well). One – no one should ever be allowed to do so, regardless of what benefit might be realized. Two – first person to do so should receive some protection against masqueraders. Three – there should be no restrictions at all with regard to this specific use of public domain works, regardless of what harm may occur. Stephen will likely disagree, but I believe situation Two (which happens to be the current situation) is the most reasonable. Situation one completely restricts uses of this sort (and thereby makes all public domain works operationally equivalent to fully copyrighted works), and situation three likely leads to complete chaos.

I’m knowingly delaying a response on the patent issue as I fully admit

However, it seems that – deep down – some people don’t really value the public domain. When given the option of placing works in the public domain early (ahead of when their copyright would expire), they will instead say:

The public domain lets people make and commercialize derivative works which aren’t placed back in the public domain. This is bad. Therefore, we should instead be glad of long copyrights and copyleft our works for the full term of copyright instead of placing them in the public domain. We need to protect our works from commercialization by others by keeping them out of the public domain as long as possible.

The copyleft mentality exemplified in the snippet above is already showing up in responses to the Open Education License draft. I never thought I would say this, but: The best thing about copyright expiring may be that copyleft will expire, too. I’m reminded of Lessig’s comments:

We are where we are because most people don’t believe in the public domain. Most people don’t even understand it. We live in a time when the public domain is more than 75 years old. Yet for most of our history, the public domain was no more than 30 years old. If ordinary people could see the creativity that would be inspired if the 1960s were in the public domain, they would understand again the importance of limiting the regulation that copyright law has become.

Because left and right are opposites, it is easy to fall into the trap of thinking that copyleft is the opposite of copyright. It is not. Copyleft is a kind of copyright that prevents people from exercising certain rights with regard to content. The public domain is the opposite of copyright. If you have any question about how valuable the public domain is, please read Pollock’s excellent The Value of the Public Domain.

The critical importance of the public domain is one reason for the new Open Education License draft. Why not simply create a mechanism for putting works in the public domain? Again, quoting Lessig:

We have no direct license that you can link to so as to place your material in the public domain. This is not because we wouldn’t like to offer such a license. It is instead because the law does not make such simplicity possible. While for most of our history, there were a thousand ways to move creative material into the public domain, most lawyers today are puzzled about whether there is any way to move work into the public domain. We have tried to build a way, but it is not automatic. If you follow this link, there are a number of steps you can take to put material into the public domain. We believe that if you follow these steps, then your work is in the public domain. Again, there’s no way to be certain about this. But this is our best guess, given the murky state of the law.

The first draft of the OEL granted licensees all the rights they would enjoy if the copyright on a work had expired – it was a license that operationally put a work in the public domain. However, it turned out that this approach would not work in the EU legal context, and so we arrived at a draft that grants licensees all the rights for which they would need a license under current, applicable law. I think this is as close to the public domain as we can come using a simple, internationally viable licensing mechanism.

Others will continue to think that noncommercial and copyleft restrictions are necessary, and I won’t argue with them. Licensing should be a matter of personal choice (another reason I don’t like copyleft). I continue to believe, however, that as people become familiar with the idea of openness many will follow a “path of enlightenment” that begins with something like CC By-NC-ND, advances to BY-NC-SA, evolves to BY-SA, then to By, and eventually arrives at the OEL.

While WiSH holds up when licenses are aggregated according to the number of conditions comprising them, there appears to be very little support for WiSH at the grain size of individual licenses.

The data actually support the hypothesis quite well when licenses and selection behavior are looked at in the aggregate. In fact, the prediction and the behavior match perfectly. It is only at a more fine grained level when the predictions fail to match user behavior.

So, the big question is, what is the value of the proposed prediction mechanism (WiSH)? I’m not sure I know. But I’m not ready to throw it out yet because it only works at certain levels of aggregation. Thoughts?

UPDATE: Here’s Stephen’s comment which was made during the blog’s transition to its new home.

Understanding the CC License Selection Behavior of Flickr Users

I’d love to hear what you think. I mean to clean it up for “formal publication” after I get your feedback…

Now, let’s see if I am getting all of this thread right: Magazine
publishers, book publishers, electronic services providers, software
development outfits, and related corporate entities are engaged in a
gigantic hold-up of teachers and learners,

In some cases, absolutely. Have you seen what Elsevier charges for a
subscription lately? There is no better phrase than “giagantic
holdup.”

But your first statement implies that I and others are anti-publisher.
I am not. I do believe, however, that the following GRE style test
item should be pondere by many people:

Ice delivery is to Refrigeration as Academic publishing is to ???

It is famously known that huge ice delivery corporations went out of
existence because they didn’t understand what their core business was.
They *thought* it was delivering ice. In reality, it was keeping
things cold. In days of yore, publishing and distributing information
was a capital intensive business. But it simply isn’t anymore. In my
opinion, “publishers” need to understand that their value no longer
comes from disseminating information. We can all do that ourselves
(this list, our blogs, and print-on-demand services like lulu.com
being examples). There is still value to add, however, in providing
editorial services and facilitating peer review. I believe that
“publishers” who think their value to the academic ecosystem comes
mainly from the fact that they can get information to people (i.e.,
their value is in their ability to “publish”) have their eyes closed
to refrigeration technology.

denying billions of people free access to — everything!

Whether good or bad, is is definitely true that people are denied free access.

The solution is simple: Eliminate all such corporate entities

We don’t want to eliminate them. We want them to evolve in response to
what is happening technologically, and provide only the value we need.
As per above, our community does not need help *disseminating*
information. We need editorial services and peer review.

and empower “the community” to invent and produce all
educational and informational materials,

This is already the state of things. Period. As researchers we: (1)
come up with the ideas for our research, (2) find the funding for our
research, (3) carry out our research, and (4) describe our research in
artifacts we believe will be useful to others. In other words, we work
hard to carry out research that willadd value to humanity. What value
does the publishing industry add to our effort? It (1) facilitates
somewhat objective peer review of our work, which is difficult for us
to do ourselves, and therefore valuable, (2) provides editorial help
with our writing, which is frequently painful / tedious / difficult
for us to do, and therefore valuable, (3) disseminates our work, which
we are now perfectly capable of doing ourselves, therefore adding no
value, and (4) demanding that we who concocted, funded, carried out,
and wrote up the research then hand over the rights to copy or share
those artifacts to the publisher, which certainly adds no value
whatsoever.

to be available without cost at all times and places to everyone.

This would be our goal, yes. I’m not sure we can ever reach this goal,
but we can work hard at being asymptotal.

Nobody would ever make any money peddling information,

That is right. Because distributing information can be done by anyone
- including my 8 year old who blogs his summer research projects.
Distribution, or “peddling,” is no longer a problem we need help
solving. We need other kinds of help, as per above.

which, as everyone knows, “deserves to be free.”

Not sure how to respond to this anthropomorphizing. =)

Of course, professors would still earn their salaries, as meager as they might be, and schools would still charge tuition (to be paid either by students or taxpayers), but that’s a different story,

Yes, people will still pay tuition. But they won’t pay tuition for
information. Information is already freely available to them
everywhere. The library (content vetted by “real” publishers), the
Internet, MIT OpenCourseWare, etc. And why *is* MIT willing to give
away all the content for all 2000 courses in their catalog -
http://ocw.mit.edu/ ? Because they understand the information alone is
of very little value. People don’t pay tuition to MIT in order to get
professors’ books, watch their videos, or partake of other
“publishable” information they produce. They can get that stuff
elsewhere, for free, legally (libraries, etc.). People pay
universities for (1) interactions and relationships with professors,
(2) the chance to build social networks with other students, and (3)
accredited degrees. Thus MIT, Carnegie Mellon, Rice, Tufts, Michigan,
Utah State, and eventually all other schools will give away their
content – because “peddling content” is not where the primary value in
a formal education is. The value is in people and degrees.

having something or other to do with high-minded motivations,

Yes, having received multiple six figure offers from corporations, I
know that I stay in academia for what might be described as
“high-minded motivations,” as do most others I know. We could all make
more money if we moved to the private sector. So, obviously, something
else is motivating us.

and being totally opposite to the greed of
those mean intellectual property holders, who, as noted, must be destroyed
(totally destroyed!) if true educational opportunity is to exist.

They’re not mean per se. They simply seem to be more interested in
holding on to their 19th century business model (distributing
information is capital intensive and therefore where our key value
lies – we own a press!) than in responding to the needs of the public.
We don’t need help disseminating information anymore. We need other
kinds of help. We don’t want them destroyed, we want them to reinvent
themselves so they provide us the value we need.

Did I get all of this right? And where does one go to sign up for the revolution?

As a publisher, you could be a leader in the revolution. Provide us
editorial services for a fee, no copyright strings attached. Provide
us peer review services for a fee, no copyright strings attached.
Believe it or not, we’ll pay for a “Good Housekeeping Seal of
Approval”(TM!) that says “This artifact has been reviewed by objective
experts in the field and passes muster.” Become the little logo placed
on articles that let’s people know, “Oh. This should actually be a
decent piece of writing.” Those are the types of services we need. You
could provide them. We will pay for them. The Public Library of
Science is doing this in other fields (http://www.plos.org/faq.html).
Lead education in the same direction!

The rebranding strategy has become increasingly common for CC (c .f. the new wiki license beta), and rebranding is now an option for us. I therefore propose we rebrand the By-NC-SA as the Creative Commons Education License, and create a special commons deed for anyone using the license (i.e., add some contextual language to the human readable part of the license – e.g., the way the new wiki license beta has been handled).

Thoughts? Please send them to the listserv at http://lists.ibiblio.org/mailman/listinfo/cc-education.