Did you know birthday parties were not common until the 1830s, and even then kids celebrating kids’ birthdays only emerged between 1870 and 1920? Now this is a song many of us hear and sing a few times a year. It is also a song notorious in copyright circles since it generates roughly $2M/year for a subsidiary of Warner Music. Robert Brauneis of GWU Law School took the trouble to dig into the history of the song and found some surprises.

“Happy Birthday to You” is the best-known and most frequently sung song in the world. Many - including Justice Breyer in his dissent in Eldred v. Ashcroft - have portrayed it as an unoriginal work that is hardly worthy of copyright protection, but nonetheless remains under copyright. Yet close historical scrutiny reveals both of those assumptions to be false. The song that became “Happy Birthday to You,” originally written with different lyrics as “Good Morning to All,” was the product of intense creative labor, undertaken with copyright protection in mind. However, it is almost certainly no longer under copyright, due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application.

The case turns out to be complicated in a way that will seem all too familiar to anyone who has tried to unravel a copyright history. The difference here is that the object of this copyright is so familiar to us all.

“Happy Birthday to You” is probably one of the few songs that people in the last two generations learned through live performances in family or community settings, and many of the others were likely children’s songs – “Twinkle, twinkle, little star” and the like – that they no longer sing or hear as grown-ups. Thus, for many people — and you, dear reader, should consider whether you are among them — “Happy Birthday to You” is the only secular song passed down through an oral folk song tradition and still sung in adulthood. No wonder it’s a surprise to find that the song is not a folk song of unknown origin. But it’s not.

The article (hat tip to Andrew Sullivan) is accompanied by an impressive web page of documentation, a reminder that we need to find ways to help academics build this kind of record in the humanities as well as the sciences.

Ars Technica writes that authors need not be afraid of the net while the Times of London worries that authors will stop writing due to online piracy. Ars Technica suggests that “given the difficulty of breaking into print in the traditional way, the Internet looks to many aspiring authors like a powerful new way to distribute content and find an audience; it has promise, not peril.” What do you think?

Perhaps not surprising to anyone who would find this posting here on a blog, but the NYT reports that youth (surprise!) copy, link to, and share video and news. In fact, they seem to be replacing traditional filters (think CNN or NYT) with social filters (think Facebook and email).

Rather than treating video-sharing Web sites as traditional news sources, young people use them as tools and act as editors themselves.

“We’re talking about a generation that doesn’t just like seeing the video in addition to the story — they expect it,” said Danny Shea, 23, the associate media editor for The Huffington Post (huffingtonpost.com). “And they’ll find it elsewhere if you don’t give it to them, and then that’s the link that’s going to be passed around over e-mail and instant message.”

The Times notes, for example, that even at the NYT site the transcript of the Obama speech last week was more emailed than any story their reporters wrote about the speech. Why does that make me feel so good? Imagine, people are learning to reach out for primary sources. On the web!

I’m so proud of the MIT Libraries. Today in LJAN I read that a yearlong effort to get the Society for Automotive Engineers (SAE) to drop their DRM plan has succeeded. Coming on the tail of the OCW/Elsevier announcement it is clear that MIT is really making a name for itself as a defender of openness. I can’t say I’m surprised by that, knowing a bit about MIT’s culture, but I am so very pleased.

Also commendable is the persistence the MIT Libraries displayed with the SAE matter and the involvement of faculty.

“We interested a couple of our faculty in the cause who are Fellows of the SAE,” [MIT librarian Tracy] Gabridge explained. “One in particular talked with colleagues at other universities and ultimately presented his objections to DRM at an SAE Publications Board Meeting last April at their national conference.”

One step at a time, marvelous work MIT!

Some pretty amazing news out of MIT last week: Elsevier and MIT’s OpenCourseWare have inked a deal to allow OCW to access a certain portion of Elsevier content under a Creative Commons license. Though I can’t find a reference to the specific CC license agreed to, David Wiley seems to think it is a By-NC-SA license, which would allow anyone who gets this material from OCW to use it and share it non-commercially. Bravo to MIT and Elsevier for finding common ground that allows broader use of such important content. I can’t help wondering if the open content movement is not putting real pressure on companies like Elsevier to work harder to allow their content to be used fully in the academic community.

The New York Times wrote earlier this month that publishers are moving away from DRM for audiobooks. Publisher have long insisted that they need Digital Rights Management to ensure their customers don’t steal their works. But others have seen DRM as Digital Restrictions Management that simply punishes customers by not letting them use the content they’ve purchased on the devises they own. It looks like the publishing industry is following the music industry’s conclusion that tripping up your customers and assuming they are criminals is a bad idea.

Of course, there is a business side to this. Publishers are also unhappy about the power they put in one vendors hands by pushing DRM content. For music that vendor was Apple. For audiobooks that vendor is Audible (now part of Amazon). Ironically, Amazon itself provided the music industry with a way out of the DRM bind by creating a very successful DRM-free alternative to iTunes in the Amazon MP3 store. Now it will be interesting to see if Audible gets behind the move to DRM-free audiobooks.

I’d like to give Apple some credit here. They usually get hammered folks for not licensing their FairPlay DRM technology. This has meant, for example, that the Zune has not been able to play content purchased at the iTunes store. It is rarely recognized, though, that by doing this Apple has left its partners with only one reasonable choice besides iTunes and FairPlay: going DRM-free. Since no other vendor in the market could play FairPlay content, to break away from the Apple stranglehold the industry had to break away from DRM altogether. Now we will see what Apple really believes in, if it starts licensing FairPlay to other manufacturers this would be a clear signal that it is trying to extend the life of DRM vs. free content. I don’t think that will happen.

All of this stands to simplify the life of those who are trying to move content onto devices like the iPod or other MP3 players. This may make life tougher for outfits like PlayAway as well. Still, PlayAway has a niche that may help it weather the storm: it serves people who do not own a player and want to share the content without moving digital files. Libraries like that. We’ll have to see who else (museums, doctors?) goes down that road.

Clinton keeps saying that she will be ready to go “day one.” Check out this ad that tries to make that point through fear-mongering. And yet, at every turn her campaign has been out-hussled and out-organized by Obama. While Clinton whines about the rules in Texas and threatens a lawsuit to cast doubt on results that are not even in yet, Obama just keeps working away. Who shows more can-do spirit? Who do you want answering the red phone? I’d rather someone who shows they can get organized in a jiffy, stay smart under pressure, and bring people together toward common goals. That person is Barack Obama!

Update: It seems that the Obama campaign responded to the ringing telephone ad within a day. That’s responsiveness! A good sign for the general election if the Obama team is fending off Republican attacks. My question as a librarian: what about the reuse of the same images? Was the Clinton team using stock footage that the Obama team could also license? Or did the Obama team just lift the Clinton footage? It seams that this kind of reuse should be allowable, but I doubt any of these ads are release under Creative Commons licenses. This is an interesting YouTube-ification of the ad wars, it feels a lot like the kind of reuse the net generation is used to.

I’ve become a fan of YouTube, even following the whole LG15 controversy. Yeah, I know. Still, every once in a while I run across something worth smiling about. Here’s one from Weird Al that you should all watch: a commentary on copyright. Very sweet.

I’ve been thinking about the Eyes on the Prize distribution some more. I’d called it “stealing” and “clearly illegal” in my prior post and comments (since edited). That was inconsiderate. Let’s consider the case more carefully. The claim made by Downhill Battle is that copying Eyes on the Prize for the purpose of showing it at screenings on 2/8 is fair use. Fair use must be evaluated by four factors, lets look at the four factors with regard to this case. Remember, I am not a lawyer. I am not even an expert in copyright. I’m just doing this exercise to help with my own thinking. Your milage may vary!

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;In this case the copies are being made for showing during Black History Month and to illuminate the tensions between copyright and the transmission of culture. As long as these copies are used only for such non-profit educational purposes, I think there is likely to be a reasonable for fair use on this factor.Note that the use is not “transformational”. While the screenings at which the documentary is presented may create a critical context that changes its role (a conversation about copyright in addition to the lessons of civil rights), this new context does not seem to me to really transform the work. As a result, I would not anticipate a slam-dunk case for fair use on the first factor.

(2) the nature of the copyrighted work;

Eyes on the Prize is a television miniseries documentary. The courts seem to treat fact-based material more generously w/r/t fair use than fictional material. This is clearly factual material. On the other hand I think visual material, like TV or film, tend to get more protection than some printed works. This may be a wash or it may lean very slightly toward fair use.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

Well, we are being asked to copy the whole show. In fact, each episode of the show is probably to be considered a complete work. I think this factor clearly tilts against fair use.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Now this gets interesting. Since the producers and PBS are no longer selling copies of the series, is there a market at all? They claim to be working on re-securing the rights they need to distribute the work, and if they succeed there should be a decent market for the DVD or other distribution. Even so, does the mp4 distribution really take away from that market potential? I think a case could be made that this distribution and the publicity and screenings surrounding it will increase the market for this series, should it ever be distributed officially again. I know I am now interested in buying a copy, when I’d forgotten about the series before all this. In my mind this factor leans toward fair use.Hm. Factors (1) and (4) tilt toward fair use, factor (3) tilts against fair use, factor (2) may be a wash, but slightly toward fair use in my estimation. That adds up, in my view, to fair use! Downhill Battle has a point.Now, this is not a legal ruling in any sense, and you have to do you own analysis of the factors before making your own decision. And document your own decision in case you are ever called to defend it in a court.

An interesting day of copyright today. Kenneth Crews is with us in Minnesota and gave a great workshop for our staff today (faculty get a taste tomorrow). And when I got home I found Mary excited about a project at Downhill Battle to encourage people to copy Eyes on the Prize. This classic documentary about the civil rights movement of the 1960’s is not in legal distribution because the rights granted for the clips used have expired and new rights have not been cleared yet by the production company. Civil disobedience over copyright issues. Interesting times.So it may be a bit much to ask the Libraries to get on the criminal side of a copyright issue, but what if Libraries around the country (and ours in particular) took part in the Downhill Battle 2/8 Black History Month event to host public showings of episodes of the documentary? Of course, we would not show the illegally downloaded versions from the net, but the legal copies from our collections. The discussion fostered, though, could still be about the difficulty of preserving critical pieces of culture in an era of tough copyright enforcement.