Madey v. Duke

Even after Madey, many researchers continue to ignore patent protections, and continue their work as if they didn’t need to license technology. The result has been increasing claims by license-holders, and a growing sense by researchers that this is complicating their scientific pursuits and introducing extra costs and restrictions.

Universities, now large licensors themselves of new technology thanks to Bayh-Dole and technology transfer offices, have turned to, in the language of Professor Robin Feldman, “open transfer” agreements to lossen up these restrictions. Such agreements are added to agreements when universities license their technologies for industry to develop, and permit both the licensing university and any other nonprofit they allow to use the technology for education and research. This approach co-opts the mechanisms of the market, rather like open-source licensing does, to permit the continued free sharing and publishing in the academic community.

What do these clauses look like? In the case of the University of California, San Diego, Article 2.2 of the sample agreement for licensing captures this “open transfer” provision:

2.2 Reservation of Rights. UNIVERSITY reserves the right to:
(a) use the Invention, and Patent Rights for educational and research purposes;
(b) publish or otherwise disseminate any information about the Invention at any time; and
(c) allow other nonprofit institutions to use and publish or otherwise disseminate any information about Invention and Patent Rights for educational and research purposes.

Part (a) and (b) are relatively standard in all licensing agreements, commercial or not. Most industry licenses also permit the licensor to use their own technology. Part (c) is the interesting part, as it permits other nonprofit institutions to also use and even publish on the technology, provided it is for educational and research purposes. In other words, what the Federal Circuit has taken out of common law, university tech transfer offices have recreated through their own market-focused and neoliberal license agreements.

This approach suggests that, despite efforts to commercialize the “ivory tower,” there remain creative resistance that seeks to maintain the traditional values and benefits of an academic research environment.

Although there have been sporadic attempts to reverse the policy, it has been considered so successful that the US Office of Science and Technology Policy requested public input on an extension of the rules to all federally funded research. Now, a consortium of US research institutions is putting its weight behind an effort to turn the potential OSTP policy into law.

via Universities, Congress push Open Access Research law.

Open access is not without its challenges (note: putting publishers out of business is not one of them), but it’s incredibly useful. I’d love to see this kind of policy extended beyond science and into other fields as well (although most other fields do not receive the kind of federal money that science does).

Now the Obama Administration (specifically, the Office of Science and Technology Policy, or OSTP) is considering extending the policy to other federal agencies that fund academic research.

via Putting the “Public” In Publicly-Funded Research | Electronic Frontier Foundation.

I am a big supporter of open access to research. I think it provides a large public benefit at a minimal cost to anyone, even private publishers (who, I think, can and do make most of their profit on rapid dissemination of new materials to those who want them now, not six months or more later). Yes, publishers add some value through editorial management and processing, but most authors aren’t compensated, and many publishers are making large profits without adding enough value to justify the cost.

The conventional rationale for copyright of written works, that copyright is needed to foster their creation, is seemingly of limited applicability to the academic domain. For in a world without copyright of academic writing, academics would still benefit from publishing in the major way that they do now, namely, from gaining scholarly esteem. Yet publishers would presumably have to impose fees on authors, because publishers would not be able to profit from reader charges. If these publication fees would be borne by academics, their incentives to publish would be reduced. But if the publication fees would usually be paid by universities or grantors, the motive of academics to publish would be unlikely to decrease (and could actually increase) — suggesting that ending academic copyright would be socially desirable in view of the broad benefits of a copyright-free world. If so, the demise of academic copyright should be achieved by a change in law, for the ‘open access’ movement that effectively seeks this objective without modification of the law faces fundamental difficulties.

via “Should Copyright Of Academic Works Be Abolished?” | Berkman Center.

An interesting proposal that I look forward to reading in more detail. My gut feeling is that, as an academic author, I would be comfortable with this, provided attribution was mandated (as with Creative Commons, which is really based on copyright). After all, while I do not expect to profit directly from any academic work I produce, I need the attribution to me to stay in order to survive in an academic profession that rewards publications and writings. If I lose the attribution, I lose that.

As I said, I look forward to reading Professor Shavell’s draft article in more depth.

The  (IFOSS L. Rev.) is a collaborative legal publication aiming to increase knowledge and understanding among lawyers about Free and Open Source Software issues. Topics covered include copyright, licence implementation, licence interpretation, software patents, open standards, case law and statutory changes.

via the International Free and Open Source Software Law Review.

Cearta.ie adds some more details:

It is a peer reviewed biannual journal for high-level analysis and debate about Free and Open Source Software legal issues, and it will receive financial and administrative support from the NLNet Foundation, which supports organizations and people that contribute to an open information society. Edited by Andrew Katz and Amanda Brock, its focus includes copyright, licence implementation, licence interpretation, software patents, open standards, case law and statutory changes. Unsurprisingly, it operates a strong Open Access Policy, providing immediate open access to its content on the principle that making research freely available to the public supports a greater global exchange of knowledge.

via cearta.ie » New Open Source Law Journal.

So what’s in the first edition? Here’s the (very interesting) table of contents:

Foreword and statement of purpose: an introduction to IFOSS L. Rev., Iain G Mitchell QC

Articles

• The Fiduciary Licence Agreement: Appointing legal guardians for Free Software Projects, Ywein Van den Brande
• Collaborative Approach: Peer-to-Patent and the Open Source Movement, Christopher Wong, Jason Kreps
• Bad Facts Make Good Law: The Jacobsen Case and Open Source, Lawrence Rosen
• Introducing The Risk Grid, Shane Martin Coughlan, Andrew Katz

Case Law Reports

• Jacobsen v Katzer and Kamind Associates – an English legal perspective, Mark Henley

Book reviews

• ‘Open Source Technology and Policy’ by Fadi P. Deek and James A.M. McHugh, Andrew Katz

Tech Watch

• Tech Watch, Adriaan de Groot

Platform

• Collaboration Among Counsel Celebrating the Formation of a Community of Lawyers for the Advancement of Understanding of Free and Open Source Licensing and Business Models, Karen Faulds Copenhaver

This looks like a journal to watch going forward.

Related articles

• International Free and Open Source Software Law Review Launched (computerworlduk.com)
• New Free/Open Source Software law journal launches (boingboing.net)

Ed Kohler points us to a long, but fascinating blog post, by Stuart Shieber, a CS professor at Harvard, discussing the somewhat ridiculous copyright situation that many academics deal with in trying to promote their own works. I’ve heard similar stories from other professors I know, but this one is worth reading. Shieber points out the importance of academics getting their research published in journals, but how annoying it is that most journals require those academics to give up all sorts of rights — including the right to distribute their own research on their websites. However, he notes that most published academics simply ignore this rule, and you end up with a “don’t ask, don’t tell” policy. Even though they’re legally prevented from putting up a PDF of their work on their website, they do so anyway, and journals just look the other way.

via The Ridiculous Copyright Situation Faced By Academics Who Want To Promote Their Own Research | Techdirt.

Traditional journals and publishers make this deal required for authors, especially in the sciences. In medical journals, the NIH open-access mandate has opened up this to some extent, since it requires authors to get consent to put their article in PubMed Central. The restriction is understandable, though, given publisher’s old business models. But the world is changing, and journals — scientific and otherwise — are having to adapt.

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Michael Nielsen wrote a stellar piece dealing with disruptive changes that doom old business models — specifically, newspapers and science publishers, to mention his examples. He does a particularly good job at explaining how this could happen even without anyone doing anything wrong or stupid.

The problem is that your newspaper has an organizational architecture which is, to use the physicists’ phrase, a local optimum. Relatively small changes to that architecture — like firing your photographers — don’t make your situation better, they make it worse. So you’re stuck gazing over at TechCrunch, who is at an even better local optimum, a local optimum that could not have existed twenty years ago

via Michael Nielsen » Is scientific publishing about to be disrupted?

He goes on to describe the impact he sees ahead for scientific publishers, a group fighting against new trends like open access that is ultimately doomed by new economic and business realities enabled by the Internet and other disruptive technologies.

Highly recommended.

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According to the Advocate’s Studio, a recent change to the Texas Rule of Appellate Procedure gives “memorandum” opinions full precedential value — but those opinions are currently only accessible through the very expensive Westlaw or LexisNexis:

Hey, Texas! What’s up with this move to lock the law behind a very expensive toll booth? If the Texas legislature insists that memorandum opinions are binding, then the Texas legislature better figure out a way to open access to them. In an age when information is moving steadily towards free and open source, this short-sighted procedural move seems more than a little backward. I suppose the next move is to require lawyers to ride to court on buckboard.

The general trend, building on similar approaches in scientific publishing as well as open-source software, has been to open up access to legal opinions. The goal is to make the law — an absolutely fundamental part of society — more accessible to the public. It is, to borrow from a rather different context, rather like allowing people to read the Bible in their own language, rather than requiring to go to a priest trained in Latin.

Hopefully, the Texas example is the exception to the trend away from proprietary lock-in, and not an indication that we are moving backwards.

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Image via Wikipedia

Looking for alternatives to expensive legal research through Westlaw and LexisNexis? Here’s a non-exhaustive list of ten alternative sources for legal research (aimed primarily at lawyers and law students) that are useful — and much cheaper:

1. Quimbee — a case brief database.

2. PreCYdent — an “open law source” and legal opinion search.

3. SSRN — an ideal source for cutting-edge legal scholarship (and a repository of older articles too).

4. AltLaw — free access to federal case law, but not as up-to-date as other sources.

5. FindLaw — free access to case law, provided by Westlaw’s owner.

6. LexisONE — Lexis’ answer to West’s FindLaw: the last ten years of state and federal court opinions, and U.S. Supreme Court opinions from 1781 to present, all free.

7. VersusLaw — inexpensive subscription alternative to LexisNexis and Westlaw (federal and state appellate case law).

8. Fastcase — subscription-based online case law research service, providing access to law, court cases, statutes, and regulations, at reason.

9. CALI — The Center for Computer-Assisted Legal Instruction provides free online training in most law school subjects.

10. Your local law library — paper and electronic resources, plus librarians who can help:

• Find a law library in California
• Counties often have public law libraries
• Many law schools have law libraries open to the public

For help with conducting legal research, ask a law librarian or consult the Gallagher Law Library’s legal research guide. If you are not a lawyer but still need to do legal research, you might also find it useful to read How to Research a Legal Problem: A Guide for Non-Lawyers.

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Minneapolis News — Westlaw rises to legal publishing fame by selling free information:

West makes its money by selling free, public information — specifically, court documents — to lawyers. On this simple model, the company raked in $3.5 billion in revenue last year, placing it on a par, sales-wise, with retail giant Abercrombie and Fitch.

The article goes on to discuss interesting ideas for businesses operating in today’s economy: “find a niche with growth potential,” “organize information to make it useful,” “the Internet is a distribution model — not a product,” “turn words into math, “separate the signal from the noise,” “computers can’t do everything,” “treat content like patented material,” “print’s not dead, it just needs online help.”

An absolutely key point that I think the article makes through its examples and discussions is exactly the opposite of the idea that “West makes its money by selling free, public information.” When one looks at the business model more closely, that is exactly what West no longer does. (Except to lawyers who have yet to adapt, I suppose.) Instead, what it really sells is the organization, signal-vs.-noise separation, and the “online help” of human editors who add value to the “free, public information” that is the foundation of West’s business.

Much as I love them, many other resources providing open access to legal materials facilitate that foundational access, but do not yet add the extra layer of value that is why people pay West and Lexis so much money. (Sometimes that extra value is not necessary, of course, so frugal lawyers should always consider when it’s worth paying for otherwise available materials.)

But, really, this is a strong, pro-business public-policy argument in favor of facilitating dissemination of foundational data and information: it makes it possible to create new business models based on adding value to that information. Google does this, although it frequently has to fight in various ways to keep its access to that information, as we have seen recently as newspapers — who perhaps are currently in the business of providing foundational information — have tried to limit Google’s ability to add value. Without the foundational data (like news, but also including all the other data out there via the Web), how can Google add any value?

Imagine how much less innovation we would have seen if linking constituted copyright infringement, and if “fair use” was eliminated — Google and all the value it adds would likely not exist. Whether or not copyright ought to exist in its current form, I think there are strong, pro-business reasons for allowing exceptions to its monopoly reach, and this article highlights that quite effectively through its examples.

In short, I say: (1) as a business, add value to survive and expand, (2) good public policy encourages innovating through new means of adding value, (3) similarly, good public policy makes foundational information (like legal decisions) widely accessible (either proactively or by allowing exceptions to copyright monopolies).

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