Jennifer M. Urban

Shining Light into Black Boxes

Funders, publishers, and research institutions must act to ensure that research computer code is made widely available. The publication and open exchange of knowledge and material form the backbone of scientific progress and reproducibility and are obligatory for publicly funded research. Despite increasing reliance on computing in every domain of scientific endeavor, the computer source code critical to understanding and evaluating computer programs is commonly withheld, effectively rendering these programs “black boxes” in the research work flow. Exempting from basic publication and disclosure standards such a ubiquitous category of research tool carries substantial negative consequences. Eliminating this disparity will require concerted policy action by funding agencies and journal publishers, as well as changes in the way research institutions receiving public funds manage their intellectual property (IP).

A Quick Guide to Software Licensing for the Scientist-Programmer

Computing is ubiquitous in every domain of scientific research. Software is the means by which scientists harness the power of computers, and much scientific computing relies on software conceived and developed by other practicing researchers. The task of creating scientific software, however, does not end with the publication of computed results. Making the developed software available for inspection and use by other scientists is essential to reproducibility, peer-review, and the ability to build upon others’ work. In fulfilling expectations to distribute and disseminate their software, scientist-programmers are required to be not only proficient scientists and coders, but also knowledgeable in legal strategies for licensing their software. Navigating the often complex legal landscape of software licensing can be overwhelming, even for sophisticated programmers. Institutional technology transfer offices (TTOs) exist to help address this need, but due to mismatches in expectations or specific domain knowledge, interactions between scientists and TTO staff can result in suboptimal outcomes. As practitioners in the scientific computing and technology law fields, we have witnessed firsthand the confusion and difficulties associated with licensing scientifically generated software. Together, we offer a primer on software licensing with a focus on the particular needs of the scientist-software developer in choosing a software license and engaging with TTOs.

Radio frequency Id and privacy with information goods

1. NORMS AND LAW This paper examines the privacy impacts of using radio frequency identification (RFID) to tag information goods such as books, music, and video. Individuals have strong expectations of privacy in their choice of information goods. These expectations are supported by both social norms and law. As a matter of practice, people may generally purchase and browse information goods without identifying themselves or the subject of their inquiry. People may pay in cash and avoid creating records that provide opportunities for third parties to learn of their information habits. Information providers that maintain records, such as libraries and bookstores, have staunchly defended their patrons’ privacy, and indeed are often bound legally to demand due process of law before disclosing those records. Data holders can examine subpoenas for authenticity and cause, and challenge them in court before disclosing private information. Bookstores have done so in recent high-profile cases. [6][9] Libraries have developed elaborate policy mechanisms to ensure records are kept private, [1] and lobbied for laws protecting library records.

How Fair Use Can Help Solve the Orphan Works Problem

Many works that libraries, archives, and historical societies would like to digitize are “orphan works,” that is, works for which the copyright holder either is unknown or cannot be located after a diligent search. Due to copyright risk if an owner later shows up, nonprofit libraries and similar institutions have been reluctant to digitize and make these works available, greatly limiting access to important cultural and historical information. While a legislative fix may soon be proposed, this Article argues that legislation is not necessary to enable some uses of orphan works by nonprofit libraries and archives. Instead, U.S. copyright law’s fair use doctrine, which allows certain unpermissioned uses of copyrighted works, provides a partial solution. Though it is an incomplete solution, fair use has some significant advantages over other approaches through which libraries and archives could make publicly beneficial uses of orphan works. Under fair use, there is no need to develop a licensing system, significantly reducing administrative and transactional costs, and eliminating socially wasteful license fees for works that are not on the market, and for which an owner is unlikely to exist. Second, fair use has the flexibility to accommodate change over time as libraries and archives discover the best ways to search for owners, preserve works, and make them available. Finally, allowing fair use of orphans by libraries and archives helps fulfill copyright’s critical purposes of promoting the dissemination of knowledge and supporting speech and free expression.

The rise of the robo notice

Examining the conflicting claims involving the use of automated tools in copyright-related notice-and-takedown procedures.

Does Familiarity Breed Contempt Among Judges Deciding Patent Cases

We offer the first comprehensive look at how a district judge’s experience affects decisionmaking in patent cases. We find that that there is a strong, statistically significant relationship between a judge’s experience and case outcome: more experienced judges are less likely to rule for the patentee. Notably, the relationship exists for rulings finding noninfringement; judicial experience had no relationship to the likelihood a judge would find a patent invalid. The relationship appears to hold across judges, rather than to be driven by the rulings of particular judges. Beyond individual judges, some technologies (biotechnology, mechanics) are associated with more patentee wins, while patentees are less likely to win computer hardware and software cases. Some district courts (Delaware, New Jersey) are more likely to find patents infringed. By contrast, perhaps surprisingly, we find no significant relationship between litigation in the Eastern District of Texas and a judge’s ruling for or against the patentee. Finally, we find that suing on multiple patents is associated with an increased likelihood that at least one patent will be found to be infringed. Our results challenge what has been an implicit assumption in the literature and discussion that particular districts are biased in a particular direction, driving forum shopping. And they test for the first time the implicit assumption in the literature, in calls for specialized patent trial courts, and in the Patent Pilot Program, that experience with patent cases at the trial level will lead to different — usually assumed to be “better” — outcomes from what we see from generalist courts. Our results suggest that there is a difference, but that “better” may be in the eye of the beholder. They suggest some sort of learning effect among district court judges across the country, and that patentees benefit from litigating before inexperienced judges, at least on issues of infringement. Depending on the reason for this effect, adoption of a specialized patent trial court might help accused infringers but not patentees, raising broader questions about patent reform and how to measure the value of an expert court.

Solving the Orphan Works Problem for the United States

Over the last decade, the problem of orphan works — i.e., copyrighted works whose owners cannot be located by a reasonably diligent search — has come sharply into focus as libraries, archives, and other large repositories of copyrighted works have sought to digitize and make available their collections online. Although this problem is certainly not limited to digital libraries, it has proven especially challenging for these organizations because they hold diverse collections that include millions of books, articles, letters, photographs, home movies, films, and other types of works. Many items come with a complex, unknown, and (often) unknowable history of copyright ownership. Because U.S. copyright law provides for both strong injunctive relief and monetary damages (in the form of statutory damages of up to

Efficient Process or 'Chilling Effects'? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act

150,000 per work infringed), organizations that cannot obtain permission often do not make their collections available at all.In October 2012, the U.S. Copyright Office initiated a new study of orphan works and mass digitization, and has indicated that it is a high-priority policy issue for the office. That study, and the work that preceded it, has highlighted the wide array of perspectives about why and how to address the orphan works problem. In this article, we present evidence that the orphan works problem is very real and that it inhibits many socially valuable uses of copyrighted works by libraries, archives, museums and other memory institutions. We then canvass the array of potential solutions, and ultimately conclude that fair use, combined with the Copyright Office’s remedy limitation approach, are better approaches for addressing this problem in the United States than alternatives proposed elsewhere. Finally, we explore future-looking changes, such as the reintroduction of copyright formalities and the development of registries, that would reduce the number of orphan works in the future.