New report on copyright and digital preservation

A joint report on the problems of copyright and digital preservation — International Study on the Impact of Copyright Law on Digital Preservation — was released this month by the Library of Congress National Digital Information Infrastructure and Preservation Program (“NDIIP”), the Joint Information Systems Committee, the Open Access to Knowledge (OAK) Law Project, and the SURFfoundation.

The report studies problems of digital preservation by looking at the copyright laws of four countries, including the United States.  It finds:

Digital preservation is vital to ensure that works created and distributed in digital form will continue to be available over time to researchers, scholars and other users. Digital works are ephemeral, and unless preservation efforts are begun soon after such works are created, they will be lost to future generations. Although copyright and related laws are not the only obstacle to digital preservation activities, there is no question that those laws present significant challenges.

See also the Section 108 Study Group Report, issued earlier this year, which discusses copyright law and digital preservation.

BoingBoing “unpublishing” blog posts

When is it ok to delete a blog post?  Dan Solove wrote about this a few years back at Concurring Opinions, where he points to additional posts at Prawfsblawg (here, here, and here). More recently, BoingBoing faced public scrutiny when one of its authors removed posts related to blogger and sex columnist Violet Blue, although nobody noticed the removals for about a year.  A message board dedicated to the issue has generated over 1600 messages since July 1, some very heated.  The moderator for the board writes:

It’s our blog and so we made an editorial decision, like we do every single day. We didn’t attempt to silence Violet. We unpublished our own work. There’s a big difference between that and censorship.

We hope you’ll respect our choice to keep the reasons behind this private. We do understand the confusion this caused for some, especially since we fight hard for openness and transparency. We were trying to do the right thing quietly and respectfully, without embarrassing the parties involved.

Clearly, that didn’t work out. In attempting to defuse drama, we inadvertently ignited more. Mind you, we weren’t the ones splashing gasoline around; but we did make the fire possible. We’re sorry about that. In the meantime, Boing Boing’s past content is indexed on the Wayback Machine, a basic Internet resource; so the material should still be available for those who would like to read it.

Oddly, BoingBoing speaks in terms of “unpublishing” rather than deletion.   (Their policy page states “We reserve the right to unpublish or refuse to unpublish anything for any or no reason.”)  Sure, “unpublishing” sounds less big-brothery than deletion, but I don’t really see the difference.

Moreover, “unpublishing” isn’t quite accurate: BoingBoing doesn’t mean “unpublished” in the sense of a book (or blog posting) that has yet to be published.  They mean disabling public access to something that has already been posted, like in the DMCA 512(c) sense where material is removed or access to it is disabled.  (WordPress does have an “unpublishing” function, but that’s still a misnomer.)  A more accurate term might be deposting, depublishing, or good ‘ol deletion.

Nevertheless, it’s useful to explore a potential distinction between deletion and depublishing, and other questions raised when a blogger wants to remove posted materials:

  • As a starting point, what is the meaning of “publication” in an age where materials can be changed or removed?
  • Under what circumstances is depublication justified?
  • What practices are needed to distinguish “depublication” from “deletion?”  Is a reservation of rights declaring a right of depublication sufficient?  Should a notice be posted where the materials used to be (as Dan Markel suggests)?
  • BoingBoing notes that the removed materials remain on the Wayback Machine web archive.  Do web archives help to justify depublication?
  • Does depublication serve an important social function by severing the association between author and depublished content?

Hat tip to Noam Cohen.  And a disclaimer: I did make some edits to this post after posting.

Why does Google keep so much information?

Yesterday, I wrote about the “privacy paradox” and Google’s refusal to post a conspicuous link to its privacy policy on its homepage.   Today, the New York Times reports that the judge overseeing the Viacom/YouTube copyright lawsuit has ordered Google to turn over a database linking YouTube users to every video clip they have watched on the site:

The order raised concerns among users and privacy advocates that the online video viewing habits of hundreds tens of millions of people could be exposed.  But Google and Viacom said they were working to hoping to come up with a way to protect the anonymity of YouTube viewers., and

Viacom said that the information would be safeguarded by a protective order restricting access to the data to outside advisors, who will use it solely to press Viacom’s $1 billion copyright suit against Google.

It’s good that some steps are being taken to limit the use of the information.  But why is Google collecting and retaining so much information? Maybe there’s business value in keeping it, but there’s also business value in not angering hundreds tens of millions of users.  Google’s apparent taste for data retention risks a well-deserved loss of goodwill.  (Or considering people’s wayward attitudes towards privacy, perhaps not.)  I recognize that some information must be retained for a variety of reasons.  But the more unnecessary information you keep, the more likely somebody you didn’t envision — a wayward employee, a hacker, or even worse, an adverse litigant — will find a use for it you didn’t want.

The court’s order can be found here.

ADDENDUM: The Times has revised the text of the quoted portion of the article from when I viewed it earlier.  I’ve indicated appropriate changes above.

NOTE (JULY 13): See here for updates.

Selyaisms and The Federal Rules of Gallimaufry

In legal circles, Senior First Circuit Judge Bruce M. Selya is well-known for the broad and arcane vocabulary that he uses in his opinions, branded by many as “Selyaisms.”  Legal Blog Watch notes that in the late 1980’s, one of Selya’s clerks had a word-a-day calendar and that he and his co-clerks “tried to see who could successfully plant the day’s word in a published Selya opinion.”

In a copyright opinion issued last Friday, Judge Selya opined that a party’s counterclaims “assert[ed] copyright infringement and a gallimaufry of other federal and state-law causes of action. ” (Emphasis added.)

Gallimaufry.  Merriam-Webster Online states that it’s of Middle French origin and means “hodgepodge.”  In the context of pleading, what a wonderful word.  Of course, the Federal Rules of Civil Procedure were intended to permit liberal joinder of claims and defenses. Thus, the Rules (such as Rules 8 and 18) were designed with hodgepodgery in mind, subject to limits such as those in Rule 11. Thus, to an extent, the Federal Rules of Civil Procedure are Federal Rules of Gallimaufry.

Musings on the Shatman

I have to admit that I’m an unabashed Star Trek fan. (Not a surprise, I suppose.) I recently read William Shatner’s new book, Up Till Now: The Autobiography (co-written with David Fisher). I highly recommend it. It’s well-written, informative, and witty. Shatner alternates between self-effacing charm, unabashed pomposity, and a gleeful hawking of goods available through his website. At times, the book is poignant, such as when Shatner recounts early career disappointments, the break-ups of multiple marriages, and especially the tragic accidental death of his third wife, Nerine.

Among other things, the book details Shatner’s efforts at being a recording artist. In his records, Shatner doesn’t really sing; instead he speaks the words dramatically. His recent recording effort, Has Been, is actually very good and includes musical talents such as Joe Jackson, Adrian Belew, and Henry Rollins. It was well-received by reviewers. (Over 200 readers on Amazon.com gave it on average 4.5 stars out of 5.)

But as Shatner’s book recounts, his earlier musical efforts were not well-received, such as his infamous cover of Rocket Man at the 1978 Science Fiction Film Awards. Shatner also discusses his cover of The Beatles’ Lucy in the Sky with Diamonds, which I do think is pretty darn awful.

Below is a wonderful YouTube parody mashing together Shatner’s cover of Lucy in the Sky with Diamonds with images to gently mock Shatner, Star Trek, and The Beatles (as well as Lucy Ricardo and Lucy Van Pelt):