Harvard University Library Confirms That Digitized Versions Of Public Domain Works In Its Collection Remain In The Public Domain

from the showing-how-it's-done dept

One issue that has concerned us here on Techdirt for some years is the routine lock-down of public domain works when they are digitized. This means that far from representing an opportunity to widen public access to such freely-available analog works, converting them to digital format puts them back under copyright's restrictive intellectual monopoly. Against that retrogressive background, a recent move by Harvard University Library is welcome:

Harvard Library asserts no copyright over digital reproductions of works in its collections which are in the public domain, where those digital reproductions are made openly available on Harvard Library websites. To the extent that some jurisdictions grant an additional copyright in digital reproductions of such works, Harvard Library relinquishes that copyright. When digital reproductions of public domain works are made openly available on its websites, Harvard Library does not charge for permission to use those reproductions, and it does not grant or deny permission to publish or otherwise distribute them. As a matter of good scholarly practice, Harvard Library requests that patrons using Library-provided reproductions provide appropriate citation to the source of reproductions. This policy is subject to the explanation and exclusions below.

The "explanation and exclusions" contain the odd bit of hedging:

The Vice President for the Harvard Library may make exceptions to this policy in particular cases where the Vice President, or her or his delegate, determines on balance that the aims of the Harvard Library would be better served by such an exception.

But, all-in-all, this is a good move, and Harvard University Library is to be congratulated for leading the way here. Let's hope it inspires many other institutions to do the same, and that it becomes the norm that digitized public domain works remain as part of the great commons of knowledge.

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Filed Under: libraries, public domain
Companies: harvard

Harvard Law Review Claims Copyright Over Legal Citations; Now Challenged By Public Domain Effort

from the this-ought-to-be-interesting dept

If you're not a copyright geek, you might not be aware of the copyright saga revolving around the Harvard "Bluebook." The Bluebook is basically the standard for legal citations in the US. It's technically owned by an organization that is effectively made up of four top law schools. For a variety of reasons, the idea that citations can be covered by copyright is troubling to a lot of folks, but the Harvard Law Review, in particular, has stood by the copyright in The Bluebook (for which it makes a pretty penny each year). Last year, there was a fight over this, best summed up succinctly by Carl Malamud in this short BoingBoing post:

For five years, Professor Frank Bennett, a distinguished legal scholar at Nagoya University School of Law, has been trying to add Bluebook Support to Zotero, the open source citation tool used all over the world.

Professor Bennett asked Harvard Law Review for permission. They said no. He asked again. They said no again. He secured Larry Lessig as his lawyer. They said no to Lessig. I pitched in and got a bunch of angry letters from the most expensive law firm in Boston. Even a flaming headline in Boing Boing wasn't enough to get the Harvard Law Review off their $2 million/year revenue stream to permit a little bit of innovation.

Frank Bennett finally said the hell with it after asking nicely for 5 years, and has now released Bluebook Zotero. It's shameful that Bluebook, Inc. couldn't deal with this situation in a better way.

If you want to dig in, with even more details, you can look here, here or here, with that last one being the original letter that Malamud sent to Harvard, which we've also embedded below.

The story has now taken an interesting twist, as Malamud, with the help of NYU law professor Chris Sprigman, has now sent a new letter to Harvard, pointing out that the 10th edition of The Bluebook is actually in the public domain, seeing as someone forgot to renew the copyright. Now, the 10th edition is obviously way off from the current 19th edition... but since much of the 19th edition survives from the 10th edition, that would suggest that much of The Bluebook is also public domain.

First, our research has established that the copyright on the 10th edition of The Bluebook, published in 1958, was never renewed. As a consequence, the 10th edition is in the public domain. Public Resource will thus publish an electronic version of the 10th Edition.

Second, in view of the 10th edition’s public domain status, we have begun an inquiry into the copyright status of the current 19th edition. As Carl has noted in his previous correspondence with you, numerous courts have mandated use of The Bluebook. As a consequence, The Bluebook has been adopted as an edict of government and its contents are in the public domain. But even if we lay that point aside (which, of course, we would not), very little of the 19th edition can be construed as material protected by copyright. Many portions of the 19th edition are identical to or only trivially dissimilar from public domain material contained in the 10th edition. Other portions of the 19th edition are comprised either of material entirely outside the scope of copyright, or material which merges with the system of citation that The Bluebook represents. These portions of the 19th edition are likewise available for public use.

As such, Malamud's Public Resource is going to create an alternative to The Bluebook, called Baby Blue, which will make use of the public domain portions of the book.

In short, The Bluebook will soon face a public domain competitor. And when Baby Blue comes to market, The Harvard Law Review Association is likely to face questions regarding why the public – including pro se and indigent litigants – are obliged to pay for access to a resource that is indispensable to all those who seek justice from our courts. The Harvard Law Review Association is likely also to face questions regarding the financial transparency of the current structure.

That's the legal equivalent of a mic drop right there.

Meanwhile, as an aside, a few months ago, lawyer Cathy Gellis also pointed out that if legal citation formats are copyrightable, then it would appear that the 19th edition of The Bluebook infringes on her copyright, since she suggested a citation style for websites years earlier, which the latest edition of The Bluebook appears to have adopted.

For the Harvard Law Review to be able to claim infringement it would need to show that the claimed IP is unique to it. And it can’t, at least not for all citation forms. Take the system for citing blogs, for instance. The most recent edition of the Bluebook says that this would be the correct format to cite this blog post:

Cathy Gellis, The Bluebook Stole My IP, STATEMENTS OF INTEREST (June 4, 2014), http://www.cathygellis.com/soi/2014/06/the-bluebook-stole-my-ip.html.

See Rule 18.2 in the 19th Edition. However, the 18th Edition prescribed something completely different (see Rule 18.2.4):

Statements of Interest, http://www.cathygellis.com/soi/ (June 4, 2014).

Which is, of course, a completely useless citation format. It doesn’t indicate author, it doesn’t indicate post title, it doesn’t indicate URL (which one needs to be able to search the Internet Archive for when online materials disappear). It’s complete garbage.

But... going all the way back to 2007, Gellis had suggested citations that look a lot more like what's now in The Bluebook:

See the first comment appended to this 2007 post (Christine Hurt, Bluebook Pet Peeves, THE CONGLOMERATE (March 13, 2007), http://www.theconglomerate.org/2007/03/bluebook_pet_pe.html#c63110048):

1. Posted by Cathy on March 13, 2007 @ 9:22 | Permalink

It’s weird how the Bluebook form plays up datestamps and plays down author’s names. I’ve suggested that instead blogs should be cited just like articles are cited. So, for instance, instead of this:

Susan Crawford Blog, http://scrawford.blogware.com/blog/ (Apr. 27 2006 22:05 EDT).

which would completely ream someone like Howard Bashman, whose name is not part of his blog title or URL and therefore would never show up in the cite, it should be

Susan Crawford, Onward, SUSAN CRAWFORD BLOG, Apr. 27, 2006, http://scrawford.blogware.com/blog/_archives/2006/4/27/1917067.html.

I can think of few instances where that form wouldn’t work. Well, ok, I can think of one: linking to a subjectline-less post on a teenager’s MySpace page. For that, the original Bluebook form would probably be better. It’s just kind of sad, though, that the Bluebook is keying its recommendation to that particular form of electronic media and failing to recognize the tremendous scholarship that lies out there on proper blogs and allowing us to effectively capture a reference to it.

Gellis jokingly points out that if those citations are covered by copyright, then perhaps The Bluebook infringed her copyright, but she's granting a license for anyone to use it... except for the Harvard Law Review... unless, they let Carl Malamud and Frank Bennett do what they want to do. Seems like a good tradeoff.

Either way, it will be fascinating to see how Harvard Law Review responds. Here's a tip, though, if it's anything other than "sorry, we overreacted," it's probably the wrong response.

Filed Under: bluebook, carl malamud, cathy gellis, chris sprigman, copyright, harvard law review, legal citations, public domain, the bluebook
Companies: harvard, harvard law review association

DailyDirt: Can Computers Grade Written Essays?

from the urls-we-dig-up dept

Technology aimed at education could really benefit an incredible number of students by making classes and learning (potentially) a more pleasant and efficient experience. Computers can't replace a really good human teacher, but they can make it easier for good human teachers to reach a vast audience of students. Massively open online courses (MOOCs) promise to change how education works, but there are some technological tools that might be missing. It's pretty straightforward to test students on math problems in an automated way, but grading essays is a much more daunting problem. There have been some calls for automated grading software from various organizations (like the Hewlett Foundation). But at the same time, the National Council of Teachers of English argues that computers simply can't grade essays. Here are just a few more links on this debate over the use of algorithms over English professors (or grad students).

• EdX, the non-profit started by Harvard and MIT, is releasing some software to automagically grade human-written essays. Some see this software as just another tool for educators to use for more immediate feedback to students, while others are worried that these algorithms will be used incorrectly and lead to disastrous educational policies and outcomes. [url]
• There are studies that show algorithms are statistically comparable to humans when it comes to ranking essays on a 5 point scale. There are things machines can do better and things humans do better -- just make sure you know the differences and automated essay grading can be done productively in the right context. [url]
• Automated essay readers can grade 16,000 essays in 20 seconds. The Educational Testing Service is testing out automation, so students may soon be facing algorithmic grading for their college entrance exams. [url]
• Grading a few sentences can be harder than it might look. Professional (human) teachers are obviously better at interpreting the insights and ideas behind the words a student writes, but computers scale much better and never tire of horrible spelling mistakes or misplaced modifiers.... [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: ai, algorithms, artificial intelligence, automation, education, edx, essays, ets, exams, grading, mooc, nlp, tests
Companies: harvard, hewlett foundation, kaggle, mit

Harvard Searched Email Subject Lines Of Faculty To Sniff Out Leak

from the why-people-keep-private-emails dept

We've written a few times about employers snooping through the emails of employees, and for the most part, courts have found this to be legal. There are a few exceptions -- such as for attorney/client communications -- but for the most part, if you're using work provided email, they can spy on it. Of course, just because they can doesn't mean they should. As we've been pointing out for over a decade, doing so probably fosters an environment of paranoia, which may not be the most productive. Still, it's a bit surprising to see that Harvard University chose to snoop through the emails of staff members in trying to hunt down the source of a leak. Specifically, the university searched the emails of 16 deans, telling them about the search a few days later. Again, even though this is likely legal, it seems odd that a university like Harvard would do it, as it inevitably creates distrust with some of its most important staffers. Indeed, the news apparently has faculty and staff up in arms.

Havard has defended the search by arguing it was very limited -- just to specific accounts and just to subject lines:

Consequently, with the approval of the Dean of FAS and the University General Counsel, and the support of the Dean of Harvard College, a very narrow, careful, and precise subject-line search was conducted by the University's IT Department. It was limited to the Administrative accounts for the Resident Deans — in other words, the accounts through which their official university business is conducted, as distinct from their individual Harvard email accounts. The search did not involve a review of email content; it was limited to a search of the subject line of the email that had been inappropriately forwarded. To be clear: No one's emails were opened and the contents of no one's emails were searched by human or machine. The subject-line search turned up two emails with the queried phrase, both from one sender. Even then, the emails were not opened, nor were they forwarded or otherwise shared with anyone in IT, the administration, or the board. Only a partial log of the 'metadata' — the name of the sender and the time the emails were sent — was returned.

"The Resident Dean whose account had been identified was asked about the incident and voluntarily reviewed his/her own sent items and confirmed that she/he had indeed forwarded the message to two students. Although the Resident Dean's actions violated the expectations of confidentiality surrounding the Administrative Board process, those involved in the review and the conversation with the individual were sufficiently convinced that it was an inadvertent error and not an intentional breach. The judgment was made not to take further action.

The issue, though, is the expectation of privacy and the level of trust built up between staffers and the university -- and actions like this, even when done narrowly and carefully, can break down that trust in significant ways.

Filed Under: email, harvard, privacy, searches, trust
Companies: harvard

Times Must Be Tough: Harvard Becoming A Trademark Troll

from the ask-not-what-you-can-do-for-hah-vahd dept

Vanity Fair recently had a long, but absolutely fascinating article on how Harvard gambled away a big part of its endowment. Even worse, folks at Harvard seemed to think that the annual increases to the endowment were a sure thing, and spent like they were always going to see massive returns. The university is now feeling a pretty massive pinch because of this, and trying all sorts of things to cut costs and bring in more revenue. Apparently, that includes trademark trolling. ChurchHatesTucker points us to the news that Harvard is looking to trademark a bunch of common or well-known phrases, including "Ask what you can do," (based on President Kennedy's famous speech) and "Lessons learned." Not surprisingly, this is raising some free speech questions, concerning the university's right to try to claim some form of "ownership" over these common phrases. The university claims it's just for defensive purposes:

"Since we're spending so much time and money to promote this phrase, we just want to make sure someone doesn't say we can't use it."

Of course, that basically highlights the ridiculousness of the way copyright, patents and trademarks are viewed these days: as something you need to "stockpile" so someone else doesn't get them. Some of the trademark applications are on phrases that Harvard isn't even using:

"You need to reserve something in case you intend to use it," Calixto said. "We're strategically protecting it for use at some point down the line."

And I thought you could only get trademarks on actual use in commerce.

In the meantime, when I started reading the articles linked above, and thought that it would make for a good post, I totally planned to end it by pointing out that people should start getting around these trademarks by referring to the university as "Hah-vahd." Except... the university has an application pending for "The Hahvahd Tour." Oh well...

Filed Under: harvard, trademark
Companies: harvard

Harvard Faculty Agrees To Free Up Its Research

from the about-time dept

While MIT has received plenty of attention over the years for its effort to free up all course materials a potentially equally as interesting move happened at Harvard yesterday, where Arts & Sciences faculty agreed to free up their research. For many years, there's been a push by some to change the process for publishing research. Typically, academic research would appear in journals that were incredibly expensive, potentially limiting the access to that research, even if the research was publicly funded. However, what this group of Harvard faculty have now done is agree that any research they publish will also be available for free online. As mentioned recently, in an age where everyone is so focused on intellectual property, it suddenly makes things like teaching and learning appear to be mighty similar to what others call theft or infringement. It's nice to see some universities starting to push back on that.

Filed Under: free, harvard, research
Companies: harvard

Harvard Bookstore Claims Book Prices Are Copyrighted

from the you-can-claim-it,-doesn't-mean-it's-true dept

A few years ago, we had a story about a store that was kicking people out if they caught them comparison shopping via a mobile device. Obviously, a store can kick out anyone they want to, but perhaps a better approach is to actually focus on better serving the customer so that when they're done comparison shopping, they still want to buy from you (either because you have the best price, or you offer some additional convenience or service they can't get elsewhere). This issue seems to be coming up again, but with a new twist. alex writes in to let us know that the bookstore at Harvard is kicking people out for taking too many notes about pricing (via Boing Boing). When confronted about this, the store's president actually claimed that book prices were the store's "intellectual property." Of course, just because you say something is your intellectual property, it doesn't mean it is. Unfortunately for the bookstore, the law is pretty clear that you can't copyright facts -- and whether the bookstore likes it or not, prices are facts. The store certainly has the right to refuse service to anyone, but that doesn't mean that it's smart for business or that copying down prices infringes on any kind of intellectual property. Update: To clarify, there are apparently a few different bookstores at Harvard. This particular one is the Harvard Coop, run by Barnes & Noble and the University. There is another bookstore, called The Harvard Book Store that is independent and has nothing to do with this story.

Filed Under: copyright, facts
Companies: barnes and noble, harvard