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The Sad Legacy Of Copyright: Locking Up Scientific Knowledge And Impeding Progress

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We've repeated this over and over again, but the Constitutional rationale for copyright is "to promote the progress of science" (in case you're wondering about the "useful arts" part that comes after it, that was for patents, as "useful arts" was a term that meant "inventions" at the time). "Science" in the language of the day was synonymous with "learning." Indeed, the very first US copyright law, the Copyright Act of 1790 is literally subtitled "An Act for the Encouragement of Learning." Now, it's also true that the method provided by the Constitution for the promotion of this progress was a monopoly right -- locking up the content for a limited time. But the intent and purpose was always to promote further learning. This is why, for years, we've questioned two things: First, if the monopoly rights granted by copyright are hindering the promotion of learning, should they still be Constitutional? Second, if the goal is the promotion of learning, shouldn't we be exploring if there are better methods to do that, which don't involve monopoly rights and limiting access. And this, of course, leaves aside all the big questions about how much copyright has changed in the past 227 years.

Still, I'm thinking about all of this again in response to a new report -- first found on BoingBoing -- noting that 65 out of the 100 most cited papers are behind a paywall. The report is interesting and depressing. It doesn't just point out that these 65 papers are behind a paywall, but notes the price of the article, and what the effective total price to cite really is (which they list as "cost to buy individually").

The web was built specifically to share research papers amongst scientists. Despite this being the first goal of the modern web, most research is still published behind a paywall. We have recently highlighted famous math papers that reside behind a paywall as well as ten papers that have achieved a near rockstar status in research and the public. Here we systematically look at the top one hundred cited papers of all time and find that 65\%65%​ of these papers are not open. Stated another way, the world’s most important research is inaccessible from the majority of the world.

In case you're wondering, the average price to access each article is $32.33 (and the median is $32), with the range being $4 to $41. There aren't too many down around the $4 range, mind you. It's pretty much an outlier. As you'd suspect from the average, most are priced in the $25 to $40 range.

Of course, it's worth thinking carefully about this -- especially in an age where a useful service like Sci-Hub, which has created a library of academic research, open to all, is being attacked as an infringer, with all sorts of attempts to shut it down. Does this really make sense if the goal of copyright is to increase learning? (It's a separate discussion altgoether whether the purpose of copyright was ever really to increase learning, or if that was just a fig leaf to cover over the idea that it was a monopoly right for publishers).

The people writing these academic papers are almost never incentivized by the copyright. Hell, in most cases, the journals they publish in require the copyright be turned over to the journal. The journal, which profits massively from all this free labor, seems to disproportionately benefit from this setup. It gets the copyright. It charges insane amounts -- mainly to a captive audience of universities which feel required to pay extortionate rates -- and everyone else gets left out (or has to resort to infringement). It's difficult to see how anyone can justify this system in an intellectually honest manner.

The supporters of the system will fallback on a few points: they will claim that the journals provide peer review -- leaving out that this is also done as volunteer (free) labor, and there's no reason it need be done via a journal. On top of that, there's the fact that the existing peer review system is a joke that doesn't actually work. Some will argue that the journals provide a level of trust and credibility to papers -- and that's true, even if they still often publish bogus papers.

And, of course, all of this ignores the internet. The internet solves nearly every "problem" that journals claim they solve, and does it much better and more cost effectively. With the internet, peer review can be better and more efficient (and can let in many more perspectives.). On the internet, distribution can be much wider (which, on top of everything else, encourages greater peer review!).

And so we're left in a position where the only "benefit" of copyright in academia is to prop up a journal system that is expensive and inefficient, and which is almost entirely obsolete in the age of the internet. That's not to say there isn't any role for journals -- there clearly are, as we see from various open access journals that take a much more modern approach to these issues.

But, in looking all of this over, it seems like an unfortunate legacy of the copyright system that is props up the broken model of expensive, obsolete, inefficient and poorly vetted journals, while outlawing the efficient, cheap and useful model of an online library of knowledge like Sci-Hub.

If an alien were to come down to the planet today, and you had to justify why Sci-Hub is illegal and the journals are considered admired institutions of academia, I don't think anyone could legitimately do so. And when that's the situation, it seems like it's time to fix the system that lead to such a completely broken result.



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herrmann
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EFF Wins Over Patent Troll Trying To Silence EFF Calling Its Patent Stupid

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Earlier this year we wrote about the EFF going to court in California to protect it against an Australian patent troll, GEMSA, who objected to EFF naming a GEMSA patent one of EFF's "Stupid Patents of the Month." Apparently GEMSA sued in Australia, didn't properly serve EFF, and then got an injunction in Australia, which it threatened to enforce in California. EFF went to court using the all important SPEECH Act, which bars foreign judgments from being enforced in the US if they are in conflict with the First Amendment.

GEMSA, perhaps not surprisingly, declined to show up in the California court, leading EFF to move for default. A magistrate judge initially recommended against this, arguing that the court did not have personal jurisdiction over GEMSA. EFF asked the court to try again, and in a extraordinarily detailed and careful ruling, Judge Jon Tigar rejects the magistrate's recommendation and gives EFF the default judgment it sought. We've complained in the past that often the problem with default judgments is that courts are only too willing to just grant them if one party declines to show up for the case. This is not one of those situations. Tigar goes out of his way to explore pretty much every possible argument that GEMSA might have for why the court shouldn't have jurisdiction, for why the SPEECH Act should not apply and for why EFF's post may have been defamatory. And one by one by one, he points out why GEMSA is wrong and EFF is right. I won't repeat all the reasoning here, in part because there are so many different elements, though it's a fun and quick read in the filing.

Most importantly, after analyzing everything EFF put in the post, the court concludes: "In short, not one of the alleged defamatory statements would be defamatory under California law. EFF would not have been found liable for defamation under U.S. and California law." Combine that with the court recognizing that it has personal jurisdiction over GEMSA (GEMSA hurt its case here by continuing to appear in California courts in some of its patent lawsuits while ignoring this case...) and deciding that all of the elements of the SPEECH Act applies, and EFF prevails. And thus, it's protected speech to call GEMSA's patents stupid, and GEMSA can't censor EFF saying so here in California.

Given all that, we'd like to reiterate just how stupid GEMSA's stupid patent really is. It's for US Patent 6,690,400 on "virtual cabinest" and, damn, is it ever a stupid patent.



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Sheriff's Office To Pay $3 Million For Invasive Searches Of 850 High School Students

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It's been barely a month since news came to us of the Worth County (GA) Sheriff's Department's search of an entire school's worth of high school students. Over 800 students were searched without a warrant, subjected to invasive pat downs that included breasts and genitals by Sheriff Jeff Hobby and his deputies.

Sheriff Hobby thought there might be drugs in the school, but despite the search of hundreds of students and the use of drug dogs, no drugs were found. A class action lawsuit [PDF] alleging multiple rights violations brought by some of the students was filed in June. In October, Sheriff Hobby and two of his deputies were indicted for sexual battery and false imprisonment.

In a surprisingly quick turnaround, there's already talk of a settlement, as Susan Hogan reports for the Washington Post.

On Tuesday, a legal advocacy group, the Southern Center for Human Rights, said a proposed $3 million settlement had been reached in the lawsuit, pending a judge’s approval.

That number has nothing to do with the severity of the violations, but rather is the limit of the sheriff department's insurance policy. But it will be spread to cover a majority of the student body harmed by the actions of these law enforcement officers.

Each class member will receive a monetary award of between $1,000 and $6,000, with those students subjected to more invasive searches receiving higher amounts. Once any outstanding claims are resolved and attorney fees of 15% of the fund are paid, half of any remaining funds will be paid into a fund for the benefit of Worth County High School students.

This quick settlement can likely be chalked up to a handful of variables. One, Hobby and his deputies have been indicted, which gives more credence to the students' claims their rights were violated. Two, the entire 4-hour lockdown was captured on the school's surveillance cameras, all but eliminating narrative options for the law enforcement defendants. Three, Sheriff Hobby's own statements in defense of his and his deputies' actions make it very clear the sheriff supports the mass violation of rights through policies and actions.

The only reason Hobby didn't pursue another warrantless search of the entire school's student body wasn't because of concerns about students and their rights, but because people were angry.

When asked about that previous search that came up dry, Hobby said he didn't think that search was thorough, so he decided to do his own.

He said he believes there are drugs at the high school and the middle school, but also said that he will not do another search, due to response from community.

So, straight up, the sheriff believes he did nothing wrong. His deputies did nothing wrong. If anything's wrong here, it's the response from the community -- people who apparently don't understand civil rights are nothing more than obstacles that must be skirted or surmounted if we're ever going to win this war on drugs.



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Nobel Prize Winning Economist Says Non-US Countries Have Unique Opportunity To Reform Intellectual Property

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For well over a decade, we've noted that Nobel Prize-winning economist Joe Stiglitz has been one of the many, many economists who are skeptical of the benefits of our current patent system, noting that it appears to do a lot more harm than good, both to the process of innovation and (importantly) to the wider distribution of the gains from innovation. He's been particularly critical of pharmaceutical patents over the years. And, it appears that he may sense a somewhat unique opportunity to actually get countries around the world to actually rethink traditional patent and copyright regimes -- in part because the US, under the Trump administration, is pulling back from various international agreements and fora.

Earlier this year, along with Dean Baker and Arjun Jayadev, Stigliz authored an interesting paper about ways to rethink innovation, intellectual property and development. I don't necessarily agree with everything in the paper, but I do agree with much of it -- especially the presentation of the problems of today's systems.

Today’s global intellectual property regimes have been strongly affected by the historical evolution of IPR in the United States and in the advanced industrialised countries over the last century. Certainly, the adoption of the World Trade Organization’s Trade Related Intellectual Property System (TRIPS) reflects the understanding of the management of intellectual and knowledge advancement that prevailed in the last quarter of the previous century and the structure of economic power at that moment.

Perhaps somewhat ironically the world has coalesced on a set of institutions to manage knowledge advancement just as advanced industrialised economies have begun to run up against the severe impediments that this system entails - a system that they thought had been designed by and for themselves. Nowadays, it is widely recognised that the management of innovation in countries like the US has been sub-optimal and led to a situation that is increasingly litigious and plagued by conflicts. In fields such as information technology, a whole set of weak patents and an epidemic of over-patenting has made subsequent innovation difficult and has eroded some of the gains from knowledge creation (see Bessen and Meurer, 2008 among others). Moreover, in some areas, such as in pharmaceuticals, ever-stronger IP protections has not necessarily led to an increase in the discovery of new chemical entities (see Dosi and Stiglitz, 2014). Rather, the demands and needs of different industries become more opposed, leading to serious concerns for policy makers. There is a shrinking of the knowledge commons as even publicly funded and promoted innovation is privatised, thereby reducing both equity and efficiency. There is no agreement on what exactly ought to be done, but it is certainly recognised that the current system is not satisfactory for developed countries.

As you can tell from that snippet from the intro, there's a lot of concern about how US-driven "harmonization" of (mainly) patent rights has done more harm than good -- especially in believing in a one-size-fits-all approach. However, the paper notes that it's difficult to move away from the older setup, since so many countries were pressured into joining TRIPS (and some other international trade agreements).

The whole paper is worth reading (and it's embedded below, based on the Creative Commons license on the paper -- though, oddly, they never designate which CC license is actually being used, but I believe our posting here would be covered by all CC licenses). But beyond the paper, it appears that Stiglitz is sensing an unfortunate, if unique, opportunity to actually make other countries consider moving away from the old patent regimes: The administration of Donald Trump. Again, while the core concepts of intellectual property maximalism didn't necessarily originate with the United States (and in some areas, we've actually been laggards), there's no denying that over the last few decades, the US has mainly been the strongest supporter of putting such rules into all sorts of international trade agreements (or using those agreements to expand patent and copyright laws even beyond what we currently have in the US).

However, with a President who is extremely skeptical of international trade agreements (even if for the wrong reasons), Stiglitz has decided that it's a potential opportunity. His recent comments in South Africa make that clear. After criticizing Trump, he went on to note the opportunity:

He said developing countries must use the Trump administration as an opportunity to realise that the US hasn’t played the global leadership role it claims to have and take the initiative to negotiate new systems of globalisation, such as reforming intellectual property laws that benefit large corporates at the expense of social welfare.

Speaking out in South Africa is timely, since the country is considering a new patent law that would increase access to drugs that have been cost-prohibitive due to patents.

Stiglitz... welcomed South Africa’s draft changes and urged the country to continue working on the paper. “Any intellectual property regime has to get a balance on innovation on the one hand and dissemination on the other,” he said.

“You should be very concerned about anything that impedes competition,” said Stiglitz, warning South Africa and other developing countries of assisting corporations like big pharmaceutical companies to establish monopolies that don’t benefit local health systems or economic growth.

Stiglitz disputed claims that stringent intellectual property laws are necessary for innovation.

“There’s a whole history of using intellectual property law to try to squelch innovation,” he said.

While I hope I'm wrong, I'm skeptical that most countries will be willing to embrace a total rethink of intellectual property systems and the problems they cause for innovation -- but it will be worth paying attention to see if other countries do start pushing back on these outdated regimes.



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Investigation Finds Google Collected Location Data Even With Location Services Turned Off

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What if you take every precaution you can possibly take to avoid leaving a digital trail of your movements… and it still doesn't matter?

Many people realize that smartphones track their locations. But what if you actively turn off location services, haven't used any apps, and haven't even inserted a carrier SIM card?

Even if you take all of those precautions, phones running Android software gather data about your location and send it back to Google when they're connected to the internet, a Quartz investigation has revealed.

Since the beginning of 2017, Android phones have been collecting the addresses of nearby cellular towers—even when location services are disabled—and sending that data back to Google.

So much for going off the grid. There are some caveats to Google's permissionless collection of cell site location data, with the most significant being the fact Google didn't store the auto-collected cell tower info. That doesn't excuse the practice, but it at least keeps it from becoming tracking data the government can access without a warrant.

Google's collection of cell tower data occurred when notifications were pushed or phone users utilized the phone's built-in messaging service. In both cases, it's reasonable to assume users weren't expecting Google to be collecting this data. (It wouldn't be necessarily reasonable to assume cell providers weren't, as that's what's needed to deliver messages and notifications if the user isn't using a WiFi connection.) But no one would reasonably assume the operating system would still send cell tower info to Google with the SIM card pulled.

This is a troubling practice to be engaged in, no matter how temporary the storage of cell site data. It flies directly in the face of what phone users expect when they shut off location services or undertake other affirmative actions to minimize their digital footprint.

SIDEBAR:

This does raise some interesting Fourth Amendment questions, even if the circumstances under which the collection occurred make it unlikely these factors will ever be the centerpiece of a motion to suppress evidence. US courts have made it clear on multiple occasions there's no expectation of privacy in cell site location records. Judges have stated cell phone users should know cell companies collect tower location data to provide service to their phones. According to this line of thinking, the third party location records have no expectation of privacy because phone users are aware of the realities of cell phone usage: phones connect to towers and create records of the tower's location.

The question in this case would be whether the expectation of privacy is still nonexistent when phone users undertake deliberate efforts to disable the collection of location records. It would seem these efforts would restore an expectation of privacy -- at least if judges are going to be consistent and intellectually honest. As some judges have pointed out, defendants who don't like being tracked by their cell phones can just not use them. (This is still a somewhat ridiculous assertion -- roughly comparable to the TSA suggesting people who don't like invasive searches/biometric data gathering can just choose to not fly. Both ignore the realities of the modern world.)

If a person makes efforts to prevent collection of location info and a company does it anyway, should law enforcement still have warrantless access to these records? This remains a hypothetical question, but given the amount of surreptitious tracking performed by a number of tech companies (providers, ad networks, etc.), it won't remain hypothetical forever.

Phones generate a wealth of third party records just a subpoena away from being in the government's possession. Users cannot possibly be aware of all the information gathered by multiple companies each time they use their smartphone, but they do "reasonably expect" shutting off location services means no one (outside of their service provider) will be gathering location data. Would someone, in performing these actions, be granted a higher expectation of privacy as a result of their actions? Or would a court treat savvier digital natives the way it treats the unwashed masses who make zero effort to limit collection of location info?



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Digital Resource Lifespan

5 Comments and 31 Shares
I spent a long time thinking about how to design a system for long-term organization and storage of subject-specific informational resources without needing ongoing work from the experts who created them, only to realized I'd just reinvented libraries.
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herrmann
8 days ago
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popular
22 days ago
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5 public comments
daanzu_alt_text_bot
9 days ago
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I spent a long time thinking about how to design a system for long-term organization and storage of subject-specific informational resources without needing ongoing work from the experts who created them, only to realized I'd just reinvented libraries.
emdot
14 days ago
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I wanna lib forever!
San Luis Obispo, CA
MaryEllenCG
23 days ago
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Be nice to librarians.
Greater Bostonia
JayM
24 days ago
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*sigh* so very true.
Atlanta, GA
jth
24 days ago
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+1 for libraries
Saint Paul, MN, USA
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