As Predicted, Elsevier's Attempt To Silence Sci-Hub Has Increased Public Awareness Massively

from the now,-what-do-we-call-that-again? dept

Last month, Techdirt wrote about the growing interest in Sci-Hub, which provides free access to research papers -- more than 47,000,000 of them at the time of writing. As Mike noted then, Elsevier's attempt to make the site go away by suing it has inevitably produced a classic Streisand Effect, whereby many more people know about it as a direct result. That was first pointed out by Mike Taylor in a short post, where he listed a few titles that had written about Sci-Hub. This week, David Rosenthal has produced a kind of update, listing many more posts on the subject that have appeared in the last month alone.

Rosenthal's list includes an article entitled "Should All Research Papers Be Free?" that was published in Sunday's edition of The New York Times. It's probably the most significant contribution to spreading the word about Sci-Hub more widely, but it doesn't really add much to the debate. By contrast, another post mentioned by Rosenthal, found on the Inside Higher Ed's site, and written by the college librarian Barbara Fister, may lack the impact of The New York Times news analysis, but does make some genuinely novel observations about what is going on here.

Fister notes that alongside people who don't have access to the articles they need because they are not affiliated with a well-funded Western library with the right subscriptions, many researchers turn to Sci-Hub because accessing articles has become a complicated and inconvenient process. As she says:

For many folks, Sci-Hub is simply a more convenient library that doesn’t make you mess around with logins and interlibrary loans. Hey, we’re busy. Paywalls are a pain.

Techdirt has written before about this aspect before, and the growing evidence that piracy greatly diminishes once good, easy-to-use legal services become available. However, as Fister rightly says, the current situation is awkward for the people who are supposed to be overseeing those unsatisfactory legal services:

Librarians are in a nasty spot. Sometimes I wonder if we can even call ourselves librarians anymore. We feel we are virtually required to provide access to whatever researchers in our local community ask for while restricting access from anyone outside that narrowly-defined community of users. Instead of curators, we're personal shoppers who moonlight as border guards. This isn’t working out well for anyone. Unaffiliated researchers have to find illegal work-arounds, and faculty who actually have access through libraries are turning to the black market for articles because it seems more efficient than contacting their personal shopper, particularly when the library itself doesn't figure in their work flow. In the meantime, all that money we spend on big bundles of articles (or on purchasing access to articles one at a time when we can't afford the bundle anymore) is just a really high annual rent. We can't preserve what we don't own, and we don't curate because our function is to get what is asked for.

Not only is lack of open access soul-destroying for librarians longing to take a more active and creative role in the provision of information to the academics they support, it comes with a hidden financial cost that has been overlooked:

It is labor -- lots of labor -- to maintain link resolvers, keep [academic journal] license agreements in order, and deal with constant changes in subscription contents. We [librarians] have to work a lot harder to be publishers' border guards than people realize.

That's a hugely important point that I have not seen made elsewhere. Alongside all the other tasks that traditional publishers push onto the academic community -- notably, writing articles and refereeing them for free -- there is another major burden, imposed specifically on librarians, who are forced to spend much of their time acting as the publishers' hated "border guards." That's a tragic waste of their highly-specialized skills, and not what they were employed to do.

This extra cost is yet another reason to move rapidly to open access publishing for all academic work, which would not only legalize Sci-Hub, but make it superfluous.

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Filed Under: academia, copyright, open access, research, sci-hub, streisand effect
Companies: elsevier, sci-hub

Yes, You Can Reconcile The Wide Sharing Of Personal Medical Research Data With Greater Participant Control

from the this-is-how-to-do-it dept

Although the benefits of sharing big datasets are well-known, so are the privacy issues that can arise as a result. The tension between a desire to share information widely and the need to respect the wishes of those to whom it refers is probably most acute in the medical world. Although the hope is that aggregating health data on a large scale can provide new insights into diseases and their treatments, doing so makes issues of consent even trickier to deal with. A new study of Parkinson's disease from Sage Bionetworks, which describes itself as a "non-profit biomedical research organization," takes a particularly interesting approach. Unusually, it used an iPhone app to gather data directly from the participants:

The mPower app, built by Sage with support from the Robert Wood Johnson Foundation, collects data on capacities affected by Parkinson's disease, including dexterity, balance and gait, memory, and certain vocal characteristics, through tasks that make use of iPhone sensors. For example, to measure dexterity, participants complete a speed tapping exercise on their iPhone’s touchscreen. To evaluate speech, participants use their iPhone's microphone to record themselves pronouncing a vowel -- saying Aaaaah -- for 10 seconds. The app also allows participants to track when each task is completed alongside the time they take their medication, to help determine the effects of that medicine on their symptoms. Participants also complete regular surveys, rating the severity of their symptoms and what they think makes them better or worse.

That's a clever use of smartphone capabilities to allow people to become active participants in the study -- citizen scientists, almost -- but hardly a major breakthrough. What is much more impressive is the way in which the study has handled the issue of how widely the resulting data will be shared, and with whom:

Unlike traditional studies, mPower participants are able to choose who to share their data with. Sharing options include only those researchers associated with mPower, or qualified researchers worldwide. So far, over 75 percent of the more than 12,000 mPower participants chose to share their data broadly with researchers. This cutting-edge consent process, which is the driving force behind the decision to widely release the mPower data set, is outlined in a third paper published today in Nature Biotechnology, and represents a sea of change in participant control over data sharing.

There's a double benefit here. Not only are participants given direct control over how their data will be used, but a broader range of "qualified researchers" can gain access. To be classed as "qualifying," researchers must:

demonstrate their awareness and understanding of the data-sharing framework and applied ethics through a short, 18-question examination;

validate their identity to Sage Bionetworks through a variety of approved methods, such as an academic letter from a signing official, a notarized letter attesting to identity or a copy of a professional license;

make a public statement of intended data use, which we can in turn feed back to participants in the spirit of engagement and transparency;

explicitly agree to a 'contract' of data sharing, including the following: (i) downloading, initialing, signing, scanning and uploading a researcher oath to adhere to a code of behavior; (ii) complying with any data-specific conditions of use.

As you might expect, the researchers at Sage Bionetworks are great believers in openness:

As part of living our philosophy, all of our tools, platforms, and products are open source. Our software is available in Github, and our non-software creative works are licensed under the Creative Commons Attribution 3.0 Unported license except for legacy publications in closed journals.

We now dedicate funds to pay author processing charges for full Open Access on research publications and are actively working to free up our backfile of closed publications.

Open source, open access, open data released with informed consent: this is what open science looks like.

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Filed Under: control, medical info, openness, parkinsons, personal information, privacy, research

State Department Backs Off Criminalizing Security Research Tools

from the now,-if-it-can-just-get-40-countries-to-agree-with-it... dept

Some good news for security researchers: the US government's adoption of the Wassenaar Arrangement will no longer treat the tools of security research like crates of machine guns. While exploits and penetration tools can be used by bad people for bad things, they're also invaluable to security researchers who use these to make the computing world a safer place.

Vague wording in the US government's proposed adoption of the 2013 version of the Wassenaar Arrangement threatened to criminalize the development of security research tools and make any researcher traveling out of the country with a laptop full of exploits an exporter of forbidden weapons.

To its credit, the State Department welcomed comments on its proposal. Even better, it seems to have listened.

It appears that the State Department has heard these concerns loud and clear. Not only has all talk of finalizing the proposed rule as drafted come to halt, but State has put “removal of the technology control” on the agenda for the December 2016 meeting at Wassenaar.

But, as the EFF's Nate Cardozo and Eva Galperin note, the battle isn't over yet. The State Department still has to pitch its amended adoption to the other parties involved in the Wassenaar Arrangement.

Of course, this isn’t the end of the road. There is no guarantee that the 40 other nations who participate in the Wassenaar Arrangement will agree, but for now, we are enjoying this important victory.

Stripping out the criminalizing of security research is a welcome step forward. In a country where researchers are routinely subjected to legal threats and law enforcement scrutiny for reporting security holes and the government always too willing to abuse the broadly-worded CFAA to punish "hackers," the addition of export controls on research tools would only have made the problem worse. And it would have done next to nothing to make general computing/internet usage any safer.

As was noted here last September, updates to the Wassenaar Arrangement were already having a chilling effect. HP pulled its support from Pwn2Own's hacking competition in Japan, citing the "legal uncertainty" surrounding the country's version of the agreement. Had the US government forged ahead with the wording unchanged, this country would have been the next to see major sponsors pull support from security research conferences or other hacking-related events.

For now, US security researchers are as "safe" as they've ever been -- which isn't really all that safe. But the situation could be far worse. The future is now partially in the hands of 40 other countries that may not be as receptive to the State Department's arguments as the agency was to the comments of those its proposal would affect.

Filed Under: research, security research, state department, wassenaar agreement

Beyond Open Access And Open Data: Open Science -- And No Patents

from the accelerating-science,-not-making-money dept

Techdirt has been writing about open access and open data in the academic world for some years now. But beyond those important ways of sharing lies a more integrated approach, generally known as open science. Gabriella Coleman has passed on some interesting news from Canada in this field. McGill University's Montreal Neurological Institute (MNI), under the leadership of its director, Guy Rouleau, wants to speed up the translation of research into treatments, and thinks that opening up completely is the way to do that, as Science reports:

any work done [at the MNI] will conform to the principles of the "open-science" movement -- all results and data will be made freely available at the time of publication, for example, and the institute will not pursue patents on any of its discoveries. Although some large-scale initiatives like the government-funded Human Genome Project have made all data completely open, MNI will be the first scientific institute to follow that path, Rouleau says.

Forgoing patent licensing revenues is unusual, but Rouleau makes the important point that early-stage science results are not really worth protecting:

"There is a fair amount of patenting by people at the institute, but the outcomes have not been very useful," he says, adding that the institute would rather provide data that others could use to develop patentable medicines. "It comes down to what is the reason for our existence? It's to accelerate science, not to make money."

This obsession with patenting that bedevils research at many academic institutions, and the poor returns it produces, is something that Techdirt has written about before. Eschewing patents, and sharing results, data, software and algorithms is bold enough, but arguably even bolder is the requirement that collaborators from other institutions must do the same:

The insistence that any organization or institute that collaborates with MNI will also have to follow open-science principles for that project could help to spread the approach, says Dan Gezelter, a chemist and open-science advocate at the University of Notre Dame in South Bend, Indiana. "It's a little bit viral. I've never seen that before," he says.

Well, maybe not in a science context, but of course such reciprocity lies at the heart of Richard Stallman's GNU General Public License. The GNU GPL is also something that is often called "viral", but a better name might be evangelical. Let's hope that MNI's project is as successful in spreading the word about open science as the GPL has been in propagating free software.

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Filed Under: guy rouleau, information sharing, open access, open data, open science, patents, research, science
Companies: mcgill university, montreal neurological institute

Frequent Errors In Scientific Software May Undermine Many Published Results

from the it's-a-bug-not-a-feature dept

It's a commonplace that software permeates modern society. But it's less appreciated that increasingly it permeates many fields of science too. The move from traditional, analog instruments, to digital ones that run software, brings with it a new kind of issue. Although analog instruments can be -- and usually are – inaccurate to some degree, they don't have bugs in the same way as digital ones do. Bugs are much more complex and variable in their effects, and can be much harder to spot. A study in the F1000 Research journal by David A. W. Soergel, published as open access using open peer review, tries to estimate just how much of an issue that might be. He points out that software bugs are really quite common, especially for hand-crafted scientific software:

It has been estimated that the industry average rate of programming errors is "about 15-50 errors per 1000 lines of delivered code". That estimate describes the work of professional software engineers -- not of the graduate students who write most scientific data analysis programs, usually without the benefit of training in software engineering and testing. The recent increase in attention to such training is a welcome and essential development. Nonetheless, even the most careful software engineering practices in industry rarely achieve an error rate better than 1 per 1000 lines. Since software programs commonly have many thousands of lines of code (Table 1), it follows that many defects remain in delivered code -- even after all testing and debugging is complete.

To take account of the fact that even when there are bugs in code, they may not affect the result meaningfully, and that there's also the chance that a scientist might spot them before they get published, Soergel uses the following formula to estimate the scale of the problem:

Number of errors per program execution =
total lines of code (LOC)
* proportion executed
* probability of error per line
* probability that the error meaningfully affects the result
* probability that an erroneous result appears plausible to the scientist.

He then considers some different cases. For what he calls a "typical medium-scale bioinformatics analysis":

we expect that two errors changed the output of this program run, so the probability of a wrong output is effectively 100%. All bets are off regarding scientific conclusions drawn from such an analysis.

Things are better for what he calls a "small focused analysis, rigorously executed": here the probability of a wrong output is 5%. Soergel freely admits:

The factors going into the above estimates are rank speculation, and the conclusion varies widely depending on the guessed values.

But he rightly goes on to point out:

Nonetheless it is sobering that some plausible values can produce high total error rates, and that even conservative values suggest that an appreciable proportion of results may be erroneous due to software defects -- above and beyond those that are erroneous for more widely appreciated reasons.

That's an important point, and is likely to become even more relevant as increasingly complex code starts to turn up in scientific apparatus, and researchers routinely write even more programs. At the very least, Soergel's results suggest that more research needs to be done to explore the issue of erroneous results caused by bugs in scientific software -- although it might be a good idea not to use computers for this particular work....

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Filed Under: bugs, research, science, software

Elsevier Says Downloading And Content-Mining Licensed Copies Of Research Papers 'Could Be Considered' Stealing

from the gotta-protect-that-39%-profit-margin dept

Elsevier has pretty much established itself as the most hated company in the world of academic publishing, a fact demonstrated most recently when all the editors and editorial board resigned from one of its top journals to set up their own, open access rival. A blog post by the statistician Chris H.J. Hartgerink shows that Elsevier is still an innovator when it comes to making life hard for academics. Hartgerink's work at Tilburg University in the Netherlands concerns detecting potentially problematic research that might involve data fabrication -- obviously an important issue for the academic world. A key technique he is employing is content mining -- essentially bringing together large bodies of text and data in order to extract interesting facts from them:

I am trying to extract test results, figures, tables, and other information reported in papers throughout the majority of the psychology literature. As such, I need the research papers published in psychology that I can mine for these data. To this end, I started 'bulk' downloading research papers from, for instance, [Elsevier's] Sciencedirect. I was doing this for scholarly purposes and took into account potential server load by limiting the amount of papers I downloaded per minute to 9. I had no intention to redistribute the downloaded materials, had legal access to them because my university pays a subscription, and I only wanted to extract facts from these papers.

He spread out the downloads over ten days so as not to hammer Elsevier's servers -- which in any case are doubtless pretty beefy given the 39% profit margin the company enjoys:

I downloaded approximately 30GB of data from Sciencedirect in approximately 10 days. This boils down to a server load of 35KB/s, 0.0021GB/min, 0.125GB/h, 3GB/day.

Elsevier's response to this super-considerate researcher is a classic:

Approximately two weeks after I started downloading psychology research papers, Elsevier notified my university that this was a violation of the access contract, that this could be considered stealing of content, and that they wanted it to stop. My librarian explicitly instructed me to stop downloading (which I did immediately), otherwise Elsevier would cut all access to Sciencedirect for my university.

There are clear parallels with the situation that Aaron Schwarz found himself in, but with a key difference. Elsevier is not only stopping Hartgerink from carrying out his research, but threatening to cut off all access to the company's journals and books for everyone working at Tilburg University if he tries to continue. Alicia Wise, Elsevier's Director of Access & Policy, added the following comment on Hartgerink's blog post:

We are happy for you to text mind content that we publish via the ScienceDirect API, but not via screen scraping.

When she was asked why it was necessary to use the API, rather than simply downloading articles, she replied:

The reason that we require miners to use the API is so that we can meet their needs AND ALSO the needs of our human users who can continue to read, search and download articles and not have their service interrupted in any way.

But that doesn't make any sense when Hartgerink had taken such pains to avoid any such adverse affects. Moreover, another commenter noted that Elsevier’s API often fails to work, rendering it useless for content mining. Even when it does work:

In many cases the API returns only metadata in the XML, compared to the fulltext PDF I can access on the website. Simply downloading the paper via the normal web service for readers is easy -- much easier than using the API.

What is really at stake here is control. Elsevier wants to be acknowledged as the undisputed gatekeeper for all possible uses of the research it publishes -- most of which was paid for by the public through taxes. And as far as the company is concerned, daring to use that knowledge in new ways without additional permission is simply "stealing."

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Filed Under: chris hartgerink, downloads, knowledge, research
Companies: elsevier

Copyright Fail: 'Pirating' Academic Papers Not Only Commonplace, But Now Seen As Mainstream

from the icanhaz-#icanhazpdf dept

Techdirt has been writing about open access for many years. The idea and practice are certainly spreading, but they're spreading more slowly than many in the academic world had hoped. That's particularly frustrating when you're a researcher who can't find a particular academic paper freely available as open access, and you really need it now. So it's no surprise that people resort to other methods, like asking around if anyone has a copy they could send. The Internet being the Internet, it's also no surprise that this ad-hoc practice has evolved into a formalized system, using Twitter and the hashtag #icanhazpdf to ask other researchers if they have a copy of the article in question. But what is surprising is that recently there have been two articles on mainstream sites that treat the approach as if it's really quite a reasonable thing to do. Here's Quartz:

Most academic journals charge expensive subscriptions and, for those without a login, fees of $30 or more per article. Now academics are using the hashtag #icanhazpdf to freely share copyrighted papers.

Scientists are tweeting a link of the paywalled article along with their email address in the hashtag -- a riff on the infamous meme of a fluffy cat’s "I Can Has Cheezburger?" line. Someone else who does have access to the article downloads a pdf of the paper and emails the file to the person requesting it. The initial tweet is then deleted as soon as the requester receives the file.

And here's BBC News:

In many countries, it's against the law to download copyrighted material without paying for it -- whether it's a music track, a movie, or an academic paper. Published research is protected by the same laws, and access is generally restricted to scientists -- or institutions -- who subscribe to journals.

But some scientists argue that their need to access the latest knowledge justifies flouting the law, and they're using a Twitter hashtag to help pirate scientific papers.

Both stories go on to give some background to the approach and its hashtag. But what's striking is that after mentioning that this kind of activity may be against the law, there's none of the traditional hand-wringing about "piracy", and how it will end Western civilization as we know it unless tough measures are brought in to stop it.

It's surely no accident that this novel relaxed attitude to sharing materials covered by copyright concerns academic papers. After all, such sharing lies at the heart of research, which derives much of its power from the fact that people can build on what has been found before, rather than being forced to re-discover old knowledge. The idea of locking away that knowledge behind paywalls, and making it hard for any researcher to access it, is so self-evidently absurd, that even mainstream publications like Quartz or BBC News apparently have no difficulty accepting that viewpoint, implicitly through their coverage, if not explicitly. It's a further sign of copyright's dwindling relevance in a world whose central technology -- the Internet -- is built on sharing and openness.

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Filed Under: academics, copyright, journals, knowledge, open access, papers, research, sharing

Health Canada Threatens To Sue Doctor If He Reveals Whether Clinical Trials Data Shows A Drug Is Safe Or Effective

from the nothing-to-hide dept

As Techdirt readers know, one of the final sticking points of the TPP negotiations was the issue of data exclusivity for the class of drugs known as biologics. We've pointed out that the very idea of giving any monopoly on what amounts to facts is fundamentally anti-science, but that's a rather abstract way of looking at it. A recent case in Canada makes plain what data exclusivity means in practice. As reported by CBC News, it concerns unpublished clinical trial data about a popular morning sickness drug:

Dr. Navindra Persaud has been fighting for four years to get access to thousands of pages of drug industry documents being held by Health Canada.

He finally received the material a few weeks ago, but now he's being prevented from revealing what he has discovered.

That's because Health Canada required him to sign a confidentiality agreement, and has threatened him with legal action if he breaks it.

The clinical trials data is so secret that he's been told that he must destroy the documents once he's read them, and notify Health Canada in writing that he has done so. And just to concentrate his mind a little, there's this:

The confidentiality agreement also contains an indemnity clause that states Dr. Persaud, at his own cost, shall "save harmless Health Canada from and against all claims," including lawsuits, that arise out of any breach in the agreement.

Against this absurd background, it's easy to forget what we are talkling about here: basic scientific information relating to a drug that is widely taken by pregnant women -- a group where unexpected side-effects can have devastating consequences on the developing foetus. You would think Health Canada would be offering Dr Persaud every possible support for his work:

"I'm trying to find out if the medication is safe and effective and Health Canada is the regulator. So they might actually want to facilitate this sort of research that I am doing. Instead, Health Canada has threatened me with legal action if I share the information."

Persaud says that he is more concerned about the drug's efficacy than its safety, but that's clearly still an important issue, not least because having seen the clinical trials data, he has changed his opinion:

"I've gone on the record questioning how effective the medication was before," he said. "I think it's fair for me to say today that I'm concerned the medication is not effective at all."

Isn't that something fundamental that pregnant women have a right to know before taking the drug in question? And yet the pharmaceutical industry has somehow achieved the astonishing trick of normalizing the practice of withholding vital safety information, and turning national health agencies into enforcers of their data monopolies. As Duff Conacher, coordinator of Democracy Watch, a watchdog on open government, is quoted in the CBC News report as saying:

"Health Canada is setting up a system to silence critics of drug companies and protect big company profits and protect them from accountability, instead of doing what they're supposed to be doing, which is protecting the public from harm," he said.

And, if ratified, TPP will entrench that system even further.

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Filed Under: big pharma, biologics, clinical trials, data, drug data, exclusivity, health canada, navindra persaud, research, tpp

How Bad Copyright Law Makes Us Less Safe... And How Regulators Have It All Backwards

from the fix-1201-now dept

For quite some time we've pointed out how problematic Section 1201 of the DMCA is. That's the part of the law that says it's copyright infringement to simply circumvent any kind of "technological protection measure" even if the reasons for doing so are perfectly legal and have nothing to do with infringement at all. And, of course, we now have the big "1201 Triennial Review" results that are about to come out. That's the system that was put in place because even Congress realized just how stupid Section 1201 was and how much innovation and research it would limit -- so it created a weird sort of safety valve. Every three years, the Copyright Office and the Librarian of Congress would work together to come up with classes of technology that are magically "exempted" from the law. Now, normally, you'd think that if you have to come up with exemptions, there's probably something wrong with the law that needs to be fixed, but that's not the way this worked.

The latest triennial review results are about to come out, and a lot of people are focused on it -- in part because of current events. As you may recall, earlier this year, we wrote about one of the exemption requests in particular: over whether or not you can tinker with the software in your car. GM was fighting against this, and we were shocked to then see the EPA side with GM (!?!?) on this issue, claiming that it's a perfectly reasonable use of copyright law to stop tinkering with cars on the off chance that some of that tinkering might lead to changing emissions to illegal levels.

Of course, just a few weeks later, we discovered that VW had been playing games with its software to avoid emissions tests and pollute the world at a much greater rate than is legal (or healthy). Many people have pointed out that, if the software wasn't all locked up, it seems likely that people would have discovered this problem much earlier. The latest to weigh in on this is Senator Ron Wyden, in a WSJ op-ed, where he explains how the EPA has this whole thing completely backwards:

This year the Environmental Protection Agency submitted comments to the Copyright Office requesting that no exemptions should be granted for car owners or researchers to access and modify the software in their vehicles. The EPA says you shouldn’t be allowed to tinker with your car because it might increase emissions from your tailpipe.

This would block any researcher who would study software in automobiles to make them safer or more environmentally friendly. This summer, security researchers demonstrated that a hacker could take over a Jeep’s systems—GPS, transmission and brakes, among others—over the Internet. This could lead to crashes and even sabotage. In this case at least, Chrysler recalled 1.4 million vehicles to patch that vulnerability, which otherwise could have gone unnoticed.

The obstacle thrown up against access to copyrighted software makes it more difficult for researchers and engineers to find similar problems in the future. Volkswagen’s falsified emissions reports were discovered by independent testing—yet the source of the problem was in the automobile’s software. Independent researchers might have found the problem sooner if not for the threat of lawsuits brought by the company under the DMCA.

In short, while the EPA is worried about individuals potentially violating the Clean Air Act or other regulations, it should be worried about the companies that are actually doing so.

And it's not just the EPA. As Wyden notes, the FDA is doing something similar, which may be even more dangerous:

The Food and Drug Administration also is getting in on the copyright game. It is telling the Copyright Office that modifying software in medical devices, and then providing them to patients without FDA approval, could put people in danger. But the distribution of untested devices is already illegal. Copyright law should not prevent researchers from taking a look at the software and thinking about how to make devices more effective and safer.

Wyden (along with Rep. Jared Polis) introduced a bill earlier this year to try to deal with this on a permanent basis, rather than through this ridiculous triennial review process. Of course, if the TPP is approved, it may be more difficult to actually make such a change.

But, really, the fact that the FDA and the EPA are making these arguments is a real sign of just how broken our copyright law is and how little many regulators understand innovation, technology and intellectual property. The EPA and the FDA come from a world of "permission-only innovation." They are both focused solely on setting up laws that "prevent bad stuff" usually through setting up testing regimes. But those regimes can be gamed -- and they don't seem to recognize that by allowing permissionless innovation to happen, it also opens up worlds of useful research and beneficial innovations, both of which could do a lot more to prevent the kinds of harm that the EPA and the FDA think they're preventing by opposing these exemptions.

There's a fundamental misunderstanding of the nature of innovation in this setup -- where regulators think that the unknown must be "dangerous" and should be prevented until proven okay. But, as history has shown, such a setup only opens up all sorts of games that the big knowledgeable players can use to dance around those regulations, and no real way for outsiders to call them on it (or to create better alternatives). Permissionless innovation is not just a slogan, it's incredibly effective -- and misusing copyright law to prevent it, out of the fear that something bad might possibly happen, without recognizing all the good that is much more likely to come from it, is really dangerous. We're only just learning that now because of what's finally come out in the news about VW, but getting rid of the stupid anti-circumvention clause in the DMCA would go a long way towards actually fixing this mess, rather than relying on bureaucrats whose defacto response is to say "don't do that."

Filed Under: 1201, anti-circumvention, copyright, copyright office, dmca, dmca 1201, emissions, epa, fda, innovation, library of congress, permissionless innovation, research, ron wyden, security

Digital Orphans: The Massive Cultural Black Hole On Our Horizon

from the wake-up dept

Imagine you are a researcher in 2050, researching the history of the Black Lives Matter movement. But you've stumbled across a problem: almost every Tweet, post, video or photograph with the hashtag #BlackLivesMatter that you want to use in your work is an orphan work (i.e., works whose owners are impossible to track down, but are still covered by copyright). You'd like to ask permission but all you've got to go on are usernames from defunct accounts. Where do you go from here?

Last week, the Copyright Office accepted responses to its Report on Orphan Works and Mass Digitization. (Full disclosure, I represented the Internet Archive in this proceeding, but all views here are my own). But that Report has no answers for our hypothetical researcher; it doesn't once mention or consider the question of what we are going to do about the billions of orphan works that are being "born digital" every day.

Instead, the Copyright Office proposes to "solve" the orphan works problem with legislation that would impose substantial burdens on users that would only work for one or two works at any given time. And because that system is so onerous, the Report also proposes a separate licensing regime to support so-called "mass digitization," while simultaneously admitting that this regime would not really be appropriate for orphans (because there's no one left to claim the licensing fees). These proposals have been resoundingly criticized for many valid reasons.

Another reason to add to the pile is that it is exclusively focused on analog orphans -- books, photographs and other materials in physical formats gathering dust in small local library collections or arcane institutional collections. These materials are culturally important, and scholars have shown that many have fallen into a 20th-Century digital black hole. But the black hole that could engulf digital orphans is poised to be ultramassive in comparison.

Each day, billions of photos are uploaded to platforms like Instagram, Facebook, Snapchat, Flickr and What's App. Similarly, 400 hours of video per minute are uploaded to YouTube alone. While some professionals use these platforms commercially to exploit their creative work, the vast majority of today's copyright owners probably don't even know what copyright is. They are simply documenting and sharing their lives. Look, for example, to the rise in popularity of social video sharing services such as SocialCam, Vid.me, Periscope, and Meerkat.

Most of the content online today is created by amateurs. Much of it is also created anonymously or pseudonymously, with no real name attached to the account. And the vast majority of users of these platforms are under 35. To make matters worse, as new services become popular, users will inevitably move on, leaving their accounts inactive. What will become of the photos, blog posts, videos and other content that is posted online every day -- much of it being created by teenagers with no interest or expectation of commercial exploitation -- that will be left behind on these platforms? Copyright law will protect those works for 70 years after these prolific teenagers die.

We are looking down the barrel of a serious crisis in terms of society's ability to access much of the culture that is being produced and shared online today. As many of these born-digital works become separated from their owners, perhaps because users move on to newer and cooler platforms, or because the users never wanted their real identity associated with this stuff in the first place, we will soon have billions upon billions of digital orphans on our hands. If those orphans survive the various indignities that await them -- host platforms going under, being deleted for more server space -- we are going to need a way to think about digital orphans. They clearly will not need to be digitized so the Copyright Office's mass digitization proposal would not apply. However, the public deserves access to the cultural heritage being amassed on digital platforms.

It might be easy to dismiss these concerns, to say that there's little social value in much of the content being created by amateurs. But I suspect researchers and historians of the future will beg to differ.

New technologies have already allowed us to develop whole new systems of communication that have no non-digital equivalent, no physical record: hashtags, emoji, reaction .gifs, LoLcats, just to name a few. Remember the Occupy Movement? And the "we are the 99%" meme? People often told their personal economic stories by holding up a handwritten sign in a photograph that would be posted to Twitter or Tumblr. Any understanding of the consequences of the economic collapse of the late 2000s would be incomplete without this digital context.

The means for creating extremely rich records of our daily lives are everywhere. People are voluntarily and enthusiastically documenting big events and small moments. Technology platforms are now places of record, although they are not necessarily designed as such. Our very way of knowing about ourselves as a society will be shaped by the sorts of access we will have to these digital records, not only of major political events like elections, but also of everyday life.

We need to start thinking about these digital orphans today, before we have a culture crisis on our hands. Perhaps this should be our call to rethink the broken policies that created the orphan works problem in the first place: extremely long terms and lack of formalities. Perhaps we could pass legislation that would establish a safe harbor for those who rely in good faith on rights information available in the Copyright Office's registration database. Perhaps fair use will evolve to allow full public access to orphans.

Of course any solution will also have to manage the significant privacy issues that will pervade these works as well, but that's a problem for another article. But anything as burdensome as the Copyright Office's current proposal will be woefully inadequate to handle the staggering numbers of born-digital orphans in the future.

Lila Bailey is a copyright attorney practicing in the Bay Area. She also teaches Internet Law at Berkeley Law.

Filed Under: copyright, history, orphan works, research, social media