Using theme of Pirates related to copyright and illustrations by N.C. Wyeth

1. Copyright Issues for
Libraries in a Web 2.0 and
Web 3D World
Fair Use and Pirating on the High Seas
Stephen Marvin – smarvin@wcupa.edu
Pirate’s Association for the State
System of Higher Education
APSCWTF

2. Artwork from the 1921 work, Howard Pyle’s
Book of pirates : fiction, fact & fancy
concerning the buccaneers & marooners of the
Spanish main / from the writing & pictures of
Howard Pyle ; compiled by Merle Johnson. In
1894 Howard Pyle began teaching illustration
at the Drexel Institute of Art, Science and
Industry (now Drexel University), After 1900
he founded his own school of art and
illustration called the Howard Pyle School of
Illustration Art. Brandywine School was later
applied to the artists of the Brandywine region.
One of his students was N. C. Wyeth.

3. Current Location of Modern Day Pirates
from WikiMedia Commons

4. Pirates have their own forums for socializing

5. Classic walking-the-plank

6. Copyright Refresher
• Fair Use - PANE
– Purpose
– Amount
– Nature
– Effect
• Court use
–Creativity
–Originality
–Fixation (a fixed
tangible medium)

7. First Sale Doctrine - books
Author - reproduce, distribute, perform, display, and
make derivative works = exclusive to the author.
The owner can sell, rent, lend and display.
The Internet lacks characteristics defining traditional
copyright law lacks “bookishness”.
Doctrine of first sale on the Internet should support
information created, stored, and distributed.
Computer software = literary work

8. Bill Graham Archives v Dorling-Kindersley
7 Grateful Dead Posters were used in a coffee
table book
– The images were incidental to the value of the
book and was not contested (Purpose).
- A small portion (Amount) was used in the
book.
- The size was reduced (Nature).
- Market harm served a minor role (Effect).

9. Assessing the Value of the Plunder

10. Forms of Cultural Production
The format of a Mystery is similar to other
mysteries. Western’s, Soap Operas, Science
Fiction, Horror, share similar formulas.
Forms are similar linguistically, folklorically,
musically, textually, thematically, in art, music,
comedy, tragedy, ballet, opera, etc.

11. How we Share Information
We experience the world not only in terms of
the language we use,
the stories we tell,
the objects we make,
and the places we inhabit,
but in terms of the social organization we
build.

12. Another View of Fair Use
• Fair Use is a social practice – parody, sarcasm, criticism,
scholarship, teaching, journalism, reviews
• Fair Use relies upon social patterns and practices – news,
comments, research
• Court decisions should be based upon what was
produced not what was done in order to produce.
• Infinite ways to change works fixed in a tangible
medium – enlarge, reduce, proportions, embellishments,
reversal, omit features, add features, colors, etc.

13. Pirates
fight over
treasure

14. Expanding Fair Use
• Classical fair use - a "professional" artist's unauthorized, yet
productive, use of copyrighted content. Classical fair use includes
historical accounts and "appropriation art," such as documentary
films or biographies, in addition to book reviews and film
criticsim. Appropriation art is valuable in its own right to help
perceive, in a different way, an already familiar image.
• Personal fair use - home recording of television shows.
• Personal productive use combines the categories of classical and
personal uses into a new category of home users (i.e. "non-
professionals") who exercise creative and editorial discretion in
classical fair use areas, such as a blog entry with an image of the
writer's favorite movie. (Madison, 2005)

15. Perfect 10 vs Google
• Courts focus on market impact of new applications
• Google used the "thumbnail" images for facilitating
information searches, a purpose other than the purpose for
which the images were initially intended. The use of such
"thumbnail" images is protected under the copyright fair
use doctrine.
• Thumbnail image was unfair use due to Perfect 10’s market
for thumbnail images for cell phones.
• Transformative use will be affected as more cases claim
more potential markets for copyright owners.

16. The victor and the spoils

17. Transformative Use
Transformative use is an extra exception employed by
social software applications. Disputes try to balance the
productive nature with the economic impact.
Transformative use depends upon the amount the use
contributes to advancing a goal of copyright toward the
promotion of arts and sciences. Social software has met
legal challenges and is being recognized for the ability to
produce innovative content (Marques, 2007).

18. Blanch v Koons
Use of a photograph in a collage –
Blanch’s lighting, camera, film, and composition were
altered, discarding the background, changing the
color, rotating elements and adding new elements by
Koons to provide a new expression (Purpose).
Commercial use was overshadowed by the
transformation. (Nature)
Though creative, limited use of the art for a
transformative painting (Amount)
and did not have an economic impact. (Effect)

19. Fairey Use or Fair Use
Shepard Fairey, Los-Angeles street artist,
created an inspirational poster.
The image serves as a good example of
transformative use.
Fairey redesigned, colorized, deleted the
background, and added other components.
The two images are on exhibit hanging side
by side in a gallery in New York.

21. Pirates had their own kind of justice

22. Harry Potter Lexicon
and J. K. Rowling
Steven Van Ark’s web page - Fair Use
(Purpose, Amount, Nature, Effect) P A N E
• Purpose – list of characters, spells,
creatures, places, events, and magical
items.
• Amount – selections from all 7 books
• Nature – Factual list of items, non fiction
• Effect - reference guides are not exclusive
to exploit, no matter the commercial
success of the original works.
Johnathan Band How Fair Use Prevailed in the Harry Potter Case
http://www.arl.org/bm~doc/harrypotterrev2.pdf

23. Transformative Use
• Steven Vander Ark
– Extracted information
from the original work.
– the Lexicon (online)
received Jo’s Fan Site
Award
– Jo used the Lexicon for
corrections
• J. K. Rowling
– Pirated verbatim
selections and full text
content.
– In fact, attempt was a
derivative work
– Courts agreed

24. Harry Potter Lexicon
Steven Vander Ark, librarian for a K-8 school in Michigan
• Purpose = describe terminology in Harry Potter series
• Amount - verbatim copying, entire songs and poems were
included. Quidditch through the Ages and Fantastic Beasts &
Where to Find Them were also included.
• Nature – non fiction book, similar to a dictionary
• Effect - definite competitive market impact present
• Result – Ark was fined the minimum ($6,750 instead of
possible $ 1,350,000)
Johnathan Band, (2008) How Fair Use Prevailed in the Harry Potter Case
http://www.arl.org/bm~doc/harrypotterrev2.pdf

25. There was a certain amount of piratical
bureaucracy

26. Ocracoke Inlet, N.C., where Edward Teach was killed
Pirate Flag of Blackbeard
http://commons.wikimedia.org/wiki/Ima
ge:Pirate_Flag_of_Blackbeard_(Edward
_Teach).svg
Edward Teach, aka Blackbeard
DMCA
Works produced on the Internet using social software
can be taken down by simple request.

27. Pirates mocking the Admiralty Court
Stephanie Lenz vs Prince in Let’s Go Crazy http://
www.youtube.com/watch?v=N1KfJHFWlhQ
- Universal sent YouTube a takedown notice.
- YouTube removed Lenz’s video because of a
copyright violation.
- YouTube sent Lenz an email, advised her of the
DMCA’s counter-notification procedures, warned
her any repeated incidents could lead to the
deletion of her account and all of her videos.
- Lenz sent YouTube a DMCA counter-notification.
- Lenz asserted her video constituted fair use of
“Let’s Go Crazy” and did not infringe copyright.
- YouTube re-posted the video.
- Fair use is a lawful use of a copyright.

28. Cases Against Fair Use
Castle Rock Entertainment v. Carol Publishing Group –
(trivia book about Seinfeld television character did not
supercede entertainment purpose of Seinfeld) – not
transformative
Ringgold v. Black Entertainment Television, Inc. A set
decoration (mosaic illustration of an African American family)
was not different than creative decorative purpose
Perfect 10 v Google – thumbnail images was unfair due to
Perfect 10’s market for thumbnail images for cell phones.
Bridgeport Music v. Dimension Films – Two seconds of music
was used in a film soundtrack. The sample was determined as
an infringement. Musicians have rights to rearrange, remix, or
license their work.

29. Successful capture of a city

30. Internet Service Provider (ISP)
Libraries are rightfully considered the domain for intellectual
activity. By having the library name identified in the URL, e.g.
West Chester University’s Francis Harvey Green Library (http://
www.wcupa.edu/library.fhg), the library is not liable for
infringement by reason of transmitting or providing connections to
the content. How things are used from the library’s provision of
access is not the responsibility of the library under the following
conditions:
• Initiated by another service provider, e.g. by a database
• Automatic technical process
• Recipients are not selected (initiated only by the user)
• No storage or copies maintained
• No modification of content
• No financial direct benefit
• Responds to removal or disables access

31. Recording industry (RIAA) won a case against
Verizon to obtain a list of users who were
downloading music.
Verizon appealed, citing customer privacy.
A federal appeals court upheld the ruling.
Title 17 U.S.C.S. § 512(h) The court of appeals
found, considering both the terms of § 512(h) and
the overall structure of 17 U.S.C.S. § 512, a
subpoena could be issued only to an ISP engaged in
storing on its servers infringing material and not as
a mere conduit.

32. ISPs Exemptions to DMCA / Copyright
Transitory digital network communications
17 U.S.C.S. § 512(a)(1)-(5) safe harbors for ISPs from liability
for copyright infringement by reason of transmitting, routing, or
providing connections for infringing material.
System caching 17 U.S.C.S. § 512(b)(2)(A)-(E), provides immunity
for the intermediate and temporary storage of material on an ISP.
‘Pirating’ 17 U.S.C.S. § 512(c)(1)(A)-(C), ISPs lack of knowledge
concerning, financial benefit from material infringing or claimed
to be the subject of infringing activity.
Information location tools 17 U.S.C.S. § 512(d)(1)-(3), ISP linking
users to an online location containing infringing material or
activity, such as a directory, index, reference, pointer, or hypertext
link, subject to the same conditions.

33. Ship under attack

34. Questions for Web 2.0/3D
• Are virtual worlds legal jurisdictions?
• Are you trespassing? (unauthorized use?)
• Cyberspace is determined and bound by
the processes by which it is created and
experienced.
• Is the law overlooking potential benefits of
adaptive and innovative practices?

35. Treachery

38. Images of West Chester University
West Chester Normal School via
ContentDM
West Chester Normal School via
Flickr

39. Criticism
Parody
Sarcasm
Moral Rights
distortion, mutilation, or
other modification of the
work which would be
prejudicial to author’s
reputation.

40. Closing on a prize in heavy seas

41. Sample Blog Application
A Blidget is a Widget in a Blog
Carnival Cruise Lines

42. http://commons.wikimedia.org/wiki/Category:Piracy
Wikimedia Commons, a media file repository
contains public domain educational media
content (images, sound and video clips)

43. Sample Virtual World
Application
AAA

44. Second Life
Education example
http://networkculture.usc.edu
Network Culture Project
http://www.youtube.com/watch?v=9gk9MGFbBIU

45. Winner take all!

46. Mashups (combine tools for other functions)
http://www.programmableweb.com/mashups

47. Sometimes the Crew makes Demands

48. Crew Demands
• Want to….
– Add MySpace/Facebook
– Create a Blog or Wiki
– Use tag clouds
– Develop Library Guides
– Use IM/Chat/ Email
– Answer Reference
questions on Second Life
• Don’t Want to….
– Add MySpace/Facebook
– Create a Blog or Wiki
– Use tag clouds
– Develop Library Guides
– Use IM/Chat/ Email
– Answer Reference
questions on Second Life

49. Pirates wait to learn the price of their crimes

50. Library > Virtual Library > Ebrary >
Cybrary?
Libraries are places and spaces as much as they
are domains of intellectual activity.
Human behavior recognizes the role of place
and space.
Individuals want and need to know where they
are, and where others are.
Places derive their character from social
practices. Place and space structure social
relationships, and are structured by them.

51. Future Challenges - Technologies
MMorpg - Massively Multiplayer Online Role-Playing Games
– applications for course instruction using selection of
documents to find a solution and earn gold? Similar to
Virtual Worlds?
Digital Watermarks to identify your electronic images.
MashUps – more creative developments bringing applications
together.
Mobile Devices – MoSoSo, most students buy unlimited text
messaging – apply to library connections!
Open Source Software compatible to the Operating System

52. Future Challenges - Policies
Evaluate Fair Use based on the result of the
production not what was used to produce it.
Guidelines using minimum allowances provided by
statutes rather than the maximum.
Response to Open Source
State cases challenging Fair Use
Challenge the frontier and Respect your social norms!

53. Social Networking examples…
Edinboro University
Mansfield University
Kutztown University
Lock Haven University
Millersville University
Shippensburg University
Slippery Rock
West Chester University
PaLA

54. Bibliography
• 17 US Code Sections 107 – 118 Copyright Act (Fair Use)
• Crawford, Susan, (2006) “Who is in Charge of Who I Am?” in The State of Play: Law, Games, and
Virtual Worlds by J. M. Balkin, Beth Simone Noveck.
• Digital Millennium Copyright Act - 17 U.S.C. § 512 - Limitations on Liability Relating to Material
Online
• Ellul, Jacques, “The ‘Autonomy’ of the Technological Phenomenon,” in Scharff, Robert C. & Dusek, V.
(Eds.), Philosophy of Technology: The Technological Condition, Malden, Mass: Blackwell. 2003, p. 392.
• Madison, Michael, (2005) Rewriting Fair Use and the Future of Copyright Reform, 23 Cardozo Arts and
Ent. L.J. 391, 393-394.
• Madison, Michael, (2007), Fair Use and Social Practice, in Intellectual Property and Information
Wealth; Issues and Practices in the Digital Age, Volume I Copyright and Related Rights, Praeger, CT
• Madison, Michael, (2006) Mich. St. L. Rev. 153 Symposium: Whither the Middleman: The Role and
Future of Intermediaries in the Information Age Social Software, Groups and Governance
• Marques, Jeannine M., (2007) Intellectual Property: B. Copyright Berkeley Technology Law Journal
Annual Review, 22 Berkeley Tech. L.J. 331.
• McGeveran, William and Fisher, William W., (2007) Digital Learning Challenge: Obstacles to
Educational Uses of Coyrighted Material in the Digital Age Accessed 8/30/2007
http://cyber.law.harvard.edu/media/files/copyrightandeducation.html.
• N.A., 8/31/2007, Communications Daily, “Copyright Adversaries Unite to Produce Fair-Use Best
Practices”
• Taylor, George H. and Madison, Michael J. (2006) 54 Clev. St. L. Rev. 141 Symposium: Cyberpersons,
Propertization, and Contract in the Information Culture Metaphor, Objects, and Commmodities
• Yu, Peter, ed. (2007) Intellectual Property and Information Wealth; Issues and Practices in the Digital
Age, Volume I Copyright and Related Rights, Praeger, CT

55. Thank You
Questions?
Comments?
Belly
Aching?
West Chester University
– Come to RECAP
Resources for the Electronic
Classroom: A Faculty-Student
Partnership