Update: The action figures are available for purchase! (Hat tip: Ted Janger)

Now that the semester is over, I am preparing to give a short lunch presentation to my colleages next week on this topic. My aspiration is for everybody to go into the fall journal submissions season with a little better understanding of the terms of the transaction that occurs when you sign a publication agreement. (My secondary goal is to foster open access; as readers of this blog will know, and you may see for yourself by clicking on our “open access” tag, this is a pet issue of mine.)

To guide the discussion, I have written a very short introduction to publication agreements for authors. It’s purposefully aimed at a nonspecialist audience, so there are plenty of things it doesn’t cover. But I don’t think it does such a bad job at teeing up the issue. An excerpt:

Suppose you wish to live in my house. You and I might reach two sorts of agreements to make that happen. First, I could sell you my house. In that case, it would become your house: you could live in it, hold raucous parties, trash the place, resell it, or do anything you wished. Second, I could rent you the house. It would still be my house, but you would have my permission to do whatever we agreed to in the lease.

Publication agreements are like that. You can assign your copyright in the work, which is like selling your house. Now it’s not your work any more: it belongs to the publisher. Perhaps they will give you permission to continue using it in certain ways, but at the end of the day, they own it. Alternatively, you can retain your copyright in the work, but grant the publisher the permissions it needs to publish it (including the permission to, for example, include the work in the major electronic legal research databases). This alternative is like renting your home. It’s still your work, but you and the publisher have agreed that they may use it in certain specified ways.

I’d love to hear any feedback readers of this blog may have on the piece. This whole thing is Creative Commons licensed, so of course you are free to copy and adapt it yourself.

I’ve already missed my scheduled spot at Peter’s conference to talk about my new paper, but he has promised to try to shoehorn me in tomorrow morning some time. You can read my piece, which I’m currently calling Fair Circumvention, at SSRN. It would make a lot of sense if you could comment on it there, too, but you can’t; this is one of the limits of SSRN that bug those of us who spend the rest of our lives in the Web 2.0, pervasively networked, hypertextable, everything-is-miscellaneous world.

So I’ll throw open the comments to this blog post to hold any reactions readers of this blog might have to my draft. Post away!

The House Report on the Copyright Act of 1976 is a key reference in the intellectual property domain, routinely cited by courts in copyright cases. It has been indispensable in resolving disputes as to legislative intent in the face of uncertain statutory text. But so far as I’ve been able to determine, it’s not freely available online (it is, of course, available in the big commercial databases). That’s unfortunate. As has often been noted, the copyright statute is intractably, even maddeningly, vague in places, and the legislative reports have been crucial tools in figuring out just what Congress was trying to do across a host of issues.

Taking advantage of our spiffy new copier, I scanned the entire House Report, working a few pages at a time over the course of a couple of weeks. That left me with a big folder full of TIFF files on my PC, which I scrubbed with the wonderful tool unpaper before converting to PDF. You can now download the completed PDF here, although be warned that it’s a very large file (155 MB): House Report No. 94-1476 (PDF).

Getting the scanned page images online, though, is only part of the battle. What I ultimately would like to see online is the text of the report, freely searchable, copyable, and indexable, rather than just the images. Because I don’t have the time or energy to convert the images to text myself, I’ve thrown the project open as an experiment in crowdsourcing. All my page scans are now available on Wikimedia Commons, and volunteers are slowly converting the raw OCR output to intelligible text on Wikisource. It’s a lengthy document, but given enough eyeballs, as they say. The Wikisource index to the scanned pages already appears on the first page of the Google search results for “House Report 94-1476.” Eventually, this process should produce a fairly well cleaned-up version of the source text.

Assuming this ultimately works (a big “if,” to be sure), what are some other public domain legal source texts that should get the crowdsourcing treatment? Perhaps some old, pre-1923 treatises on copyright or patent law? Some of my colleagues who teach Civil Procedure mentioned the legislative reports on the Rules Enabling Act of 1934. Or should we stick with more contemporary references? The most recent stuff is mostly already available in electronic form, although not exclusively, of course. Where is the greatest need?

UPDATE: The (admittedly daunting) dimensions of the problem of opening access to older legal materials, along with some interesting suggestions for increasing the size of the pool of potential editors and proofreaders, are now being discussed on Wikisource itself following a link to this blog posting. At bottom, like everything else, it’s an issue of resources. Some years ago here at Cincinnati, I’m told, we had a couple of employees in the library scanning and digitizing old UN reports, with a view towards ultimately making them available in electronic form. I’m not sure what ultimately came of that project, which was defunct before I joined the faculty, but it could be a nice proof of concept. Imagine if the law library at every law school in the United States had a person or two on staff whose full-time job it was to digitize old texts and assist in the proofreading process!

We didn’t cover Reverend Falwell’s case against Larry Flynt and Hustler Magazine (yes, that’s a perfectly work-safe link to Wikipedia — what sort of blog do you think we’re running here?) in my spring Copyright course, which in a way is too bad, since it would have given me a chance to show a clip from Milos Forman’s excellent movie, The People vs. Larry Flynt. (How many major motion pictures can you name that feature a substantial subplot involving an intellectual property dispute? Add your nominees in the comments!) Hustler published a full-page parody of a well-known advertising campaign for Campari — you can read more about the parody and see a scan of the ad (it’s admittedly tasteless, not particularly funny, and really not even terribly provocative any longer in our post-South Park world) at Wikipedia’s article on Hustler Magazine v. Falwell, in which the Supreme Court held that the First Amendment bars public figures from recovery for intentional infliction of emotional distress based on parody ads of the type Flynt produced. The intellectual property angle on the dispute, however, was effectively conveyed in just a few short lines in The People vs. Larry Flynt, in which Falwell learns that his scheme to raise money from the devout by mass-mailing copies of Flynt’s Campari parody may have backfired:

Roy Grutman: Yeah, Jerry, he’s suing you.

Jerry Falwell: He’s suing me? For heaven’s sakes, on what grounds?

Roy Grutman: Well, you xeroxed his ad, and you sent it out in a million fundraiser letters.

Jerry Falwell: Yeah, so?

Roy Grutman: But you didn’t get his permission. And that’s copyright infringement.

Jerry Falwell: The depth of his depravity sickens me.

Flynt’s copyright claim wasn’t before the Supreme Court in Hustler Magazine v. Falwell, but it did yield a nice court of appeals opinion: Hustler Magazine Inc. v. Moral Majority Inc., 796 F.2d 1148 (9th Cir. 1986), which unfortunately doesn’t seem to be freely available online. By a vote of 2 to 1, the panel accepted Falwell’s fair use defense, even though the purpose of Falwell’s copying was clearly (indeed, solely) commercial. The court’s language gives great weight to the political and social significance of Falwell’s copying — placing Falwell in the pigeonhole more usually thought to be occupied by Flynt himself, as a defender of free expression:

Although the Defendants used the parody for a commercial purpose in the sense that they profited from copying it, they did not actually sell the copies to willing buyers. Instead the Defendants used the copies to generate moral outrage against their “enemies” and thus stimulate monetary support for their political cause. Moreover, as the district court noted, Moral Majority or Old Time Gospel Hour members would probably not be counted among Hustler’s readers. Therefore, Hustler’s creative incentives are not decreased because the Defendants are profiting from an activity that Hustler could not have taken advantage of.

796 F.2d at 1156. In a world where intellectual property issues are increasingly bound up with issues involving politics (and, indeed, “moral outrages” of various stripes), it’s good that one of the more important copyright Circuits is clearly on record as supporting fair use in this context.

If Falwell’s victory in the court of appeals in the Hustler case was a net gain for fair use, his loss in the more recent Lamparello litigation may be even more consequential for Internet users. Lamparello involved a typosquatter who registered the web site “www.fallwell.com” — adding an extra letter “L” to Falwell’s name — and posted there a critique of Reverend Falwell’s views on homosexuality. A federal district court ordered Lamparello to transfer the domain to Falwell, but the Fourth Circuit reversed, in an opinion with important consequences for free speech online. (Full disclosure: my friends and former colleagues at the Berkman Center’s Clinical Program in Cyberlaw submitted a terrific amicus brief in support of Lamparello — a brief I wholeheartedly agree with, although I had no hand in drafting it.)

The court rejected Falwell’s trademark claims on the grounds that no viewer of Lamparello’s site could possibly be misled into thinking that it was actually sponsored by or affiliated with Falwell. It also rejected the Ninth Circuit’s “initial interest confusion” theory, which effectively enlarges the reach of trademark protection online by extending it to unrelated sites offering merchandise sufficiently similar to the mark holder’s that consumers who arrive there by mistake or accident may decide to stay. Finally, and perhaps most important, the Fourth Circuit rejected Falwell’s claim under the Anticybersquatting Consumer Protection Act of 1999, finding that a “gripe site” set up to criticize a trademark holder constituted a “bona fide noncommercial or fair use” of the mark. The court’s decision was a great win for creators and users of digital content online and for free expression in general.

Jacob’s addition brings the number of law professor bloggers here at UC up to five, including myself; distinguished public servant Mark Godsey (CrimProf Blog); Weaver Institute Director Betsy Malloy (HealthLawProf Blog); and the inimitable dean of the legal blogosphere, Paul Caron (TaxProf Blog and MoneyLaw). What is interesting about that statistic is that, according to Dan Solove’s most recent census of law professor bloggers, UC now has more blogging professors than many institutions with much larger law faculties — our total of five ties us with Michigan and surpasses Texas and that other school up I-71, with four apiece. Not that I am suggesting that the proportion of law faculty bloggers per capita should be taken into account in the U.S. News rankings (although why not? It’s as informative as many of their actual statistics and more so than some), but for those of us who study and work in the cyber arena, it’s always a positive development when more faculty begin to engage actively with the net as a new communications medium. Jacob is the latest to cross the line from information consumer to information producer, and his new blog is well worth a look.

UPDATE: Jacob reminds me that I overlooked our colleague Barbara Black (Securities Law Prof Blog) in my count! That makes 6 blogging profs at UC Law — just one more and we’d have 25% of the full-time faculty.

I’m proud to report that librarians at my undergraduate alma mater, Carleton College, seem to have a much more balanced attitude. As the local paper here reports:

Reference librarians are making their peace with Wikipedia. Colleges say they have conducted both school-wide conferences to hammer out guidelines, like Carleton did last year, to find the teachable moment to get students to think critically about the sources of all their information, online and offline.

The Carleton guidelines point out both advantages and disadvantages to using Wikipedia. Meanwhile, over at Concurring Opinions, there is some good discussion about stability and citability in Wikipedia, especially in the comments section.

Part of Wikipedia’s particular charm is that it is, in Dr. Weinberger’s memorable phrase, in “a continuous state of self-criticism that newspapers would do well to emulate.” Want to start a debate about whether Wikipedia is “friend or foe”? A far more comprehensive guide than anything in the UC Libraries’ page is available at Why Wikipedia is So Great and Why Wikipedia is Not So Great. On Wikipedia.

The UC Libraries’ page also manages to allude, in innuendo that is about as pointed as it can be without actually making a testable allegation, to problems with the “quality and reliability” of information on Wikipedia. Its bibliography, however, conspicuously omits a number of references that would appear to bear directly on that question, such as:

• Edward W. Felten, Wikipedia vs. Britannica Smackdown (Sept. 7, 2004).
• Angela Beesley, Wikipedia Triumphs in c’t Study (Oct. 2, 2004).
• Thomas Chesney, An Empirical Examination of Wikipedia’s Credibility (2006), summarized in Nate Anderson, Experts Rate Wikipedia’s Accuracy Higher than Non-Experts (Nov. 27, 2006).

The UC Libraries’ list also includes a particularly tawdry reference to the controversy over user Essjay (highlighted by the Libraries with a rather breathless “don’t miss the Editor’s Note!”) without actually referencing the most up-to-date information on the controversy — which is freely available, again, on Wikipedia itself. (In brief: (1) user lied about credentials, (2) truth was revealed, (3) Wikipedia’s founder reacted with unwarranted nonchalance, (4) user resigned from Wikipedia, (5) Wikipedia’s founder issued apology for earlier reaction and emphasized unacceptability of user’s conduct. But you will only learn about items (1)-(3) on that list from the UC Libraries, even though items (4) and (5) seem to put things in a rather different light.)

The UC Libraries’ list also entirely omits legal and cultural contextual data that might actually support an informed debate in classrooms that rely on its bibliography. Yale law professor Yochai Benkler found himself so inspired by the example of Wikipedia that he released his entire 2006 book, The Wealth of Networks, online in the form of a wiki. The Wealth of Networks is itself a book-length essay on the entire social/political/technological phenomenon that gave birth to Wikipedia and nourished many of its forebears; it’s an indispensable reference in understanding the unique features of the present legal/technological regime in which we find ourselves. But it’s not on the UC Libraries’ reference list. Neither is Stanford law professor (and Berkman Center co-founder) Larry Lessig’s Code version 2.0, a collaboratively edited update to one of the towering works in our genre — which is also available online in the form of a wiki.

Columbia law professor Tim Wu (who is not remotely as diabolical in real life as his online photo looks) recently admitted to being “a confessed Wikipedia addict, sometime contributor, and true believer[.]” I guess that on that scale, I measure about 0.65 Wus; I’m a frequent Wikipedia reader, also a sometime contributor, and if I haven’t quite reached the “true believer” stage yet, I’m at least persuaded that there is something highly interesting and valuable going on here. I strongly favor having discussions in an academic setting over the entire phenomenon of user-generated content online, the threat it represents to traditional informational gatekeepers, and the types of responses it has provoked. While the UC Libraries’ “Friend or Foe?” guide provides an interesting case in point for that debate, it hardly lives up to its billing as an informational resource for faculty.

Intuit, however, rejected the video — not on artistic grounds, but because (in the course of making a Who’s the Boss? reference) Adam mentioned actor Tony Danza. Undeterred, Adam simply revised his lyrics and left Tony out of it:

Was Intuit (or YouTube) right to worry that Adam might have infringed on Tony Danza’s rights? As software companies, whose livelihood depends on deriving revenue from intellectual property, you might expect them to be sensitive to possible infringements. What’s the problem if Adam mentions Tony Danza?

• Copyright? Personal names are too short to be copyrightable and are expressly excluded from protection by 37 C.F.R. § 202.1(a), so Tony Danza is going to have to look elsewhere for protection.
• Trademark? It’s a common misunderstanding of trademark law to suppose that owning a mark gives you the right to censor other people and forbid them from using the mark at all. But it has never been a violation of trademark to use a mark to refer to the mark holder’s own product. You can refer to The New York Times as “the New York Times” without violating its trademark — if it were otherwise, comparative advertising would be impossible, and trademark law would run into serious First Amendment problems. So if you’re using the words “Tony Danza” to refer to Tony Danza rather than to someone else (and you’re not saying that Tony has sponsored or endorsed your product), there’s no basis for a claim of trademark infringement.
• What’s left? The right of publicity, which is protected both under state statutes and as a matter of common law, is probably Tony’s last, best hope. California Civil Code § 3344(a) forbids using someone else’s “name, voice, signature, photograph, or likeness” in advertisements without their consent. So just saying the words “Tony Danza” might require you to get Tony Danza’s permission if you’re using those words in an advertisement for TurboTax. (Context, however, is critical — as section 3344(e) of the statute makes clear, just because somebody somewhere along the way is making money, it doesn’t mean that the use of the celebrity’s identity is necessarily commercial.) Even if the statute doesn’t apply, Tony Danza might be able to reach beyond to the common-law right of publicity, which gives a celebrity a tort claim against anyone who “appropriates their name or likeness.” The common-law right of publicity used to describe a fairly narrow doctrine, and was typically found to apply only where the reference to a celebrity implied an endorsement or sponsorship by that celebrity. Those limits, however, were thrown out the window in 1992 by the Ninth Circuit’s famous Vanna White decision, which interpreted the right of publicity to apply even to a situation in which the celebrity’s name, voice, signature, photograph, or likeness were not used at all. (The White case drew a famous dissent from Judge Kozinski, who complained that “Under the majority’s opinion, it’s now a tort for advertisers to remind the public of a celebrity.”). If White is read literally, then perhaps Intuit is right; hearing the words “Tony Danza” might indeed call to mind Tony Danza, the celebrity, and perhaps that’s enough for liability. I’m inclined to think that Judge Kozinski got it right, and there’s room enough for Tony Danza to make a comfortable living off his natural talents without forbidding Adam to utter Tony’s name in a rap about tax preparation software, but such is the world in which the White decision seems to have left us.

Update: If you want to vote for Adam’s video in the TurboTax contest, begin here: http://www.youtube.com/contest/TheTaxRap, and go to entry #145. Voting begins March 31 and runs through April 8.