Freedom of Information Act Ruling by Ninth Circuit Holds VA Wrong to Withhold Documents

In Yonemoto v. Department of Veterans Affairs (pdf), the Ninth Circuit addressed two questions about the Freedom of Information Act (FOIA):  1)  Was a Veterans Health Administration (VHA) employee’s FOIA request made moot when the Department of Veterans Affairs (VA) offered to allow the VHA employee to obtain copies of the documents in his capacity as a VHA employee; and (2) Could the VA withhold redacted portions of 9 other documents under FOIA Exemption 6, which allows an agency to withhold personnel, medical and similar files that would constitute a clearly unwarranted invasion of personal privacy?

The FOIA, 5 U.S.C. §552, allows citizens to find out what their federal government is up to, consequently providing a check against corruption and holding government actors accountable.  FOIA

permit[s] access to official information long shielded unnecessarily from public view and attempt[s] to create a judicially enforceable public right to secure such information from possibly unwilling official hands.

(Opinion pdf page 7).

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Sweet Dreams, Molly

Our sweet rescue Vizsla Molly died on Sunday.  She became a member of our family on February 10, 2007.  She was our Funny Valentine.

We believe Molly was around 12 years out when she came to live with us, so would have been around 17 years old when she died.  That’s a long life for a dog of any breed.  Molly enjoyed life and had a happy, easy going disposition.  She got along well with people, dogs and cats.

Molly’s presence enriched our lives.  She was wonderfully entertaining!  Molly’s zest for life displayed itself in many ways:  her enthusiastic spins while playing, her special way of greeting people, her daily naps underneath her blanket on her favorite chair, her insistence that someone sit on the couch with her in the evening, her single bark at the door when she wanted outside and her ability to monitor the activity in the kitchen while sleeping soundly in the living room, to name a few.

We miss Molly and treasure our memories of her many awesome qualities and endearing mannerisms.

Thanks to Kenneth Hopping for allowing me to use the photo shown after the break.

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Restoration of Copyrights for Foreign Works Held Constitutional by U.S. Supreme Court

The U.S. Supreme Court issued its ruling in Golan v. Holder (pdf) this week.  This case concerns the extent of copyright protection granted to foreign works by U.S. law.  The Berne Convention is the major treaty governing international copyright protection.  Under the Berne Convention, foreign works receive the same copyright protection as works created by the nationals of a country receive.  Although the Berne Convention became effective in 1886, the U.S. did not join the Convention until 1989 and did not pass copyright laws bringing the U.S. into full compliance with the Berne Convention until 1994.

Historically, the U.S. has offered less copyright protection to foreign works than to works created by U.S. authors.  Before 1994, there were many foreign works that were protected by copyright in their countries of origin, but received no copyright protection under U.S. law and were in the public domain in this country.  As part of the effort to bring the U.S. into compliance with the Berne Convention, Congress amended 17 U.S.C. §104A, Copyright in Restored Works.  Section 104A gives foreign works the same term of copyright protection applicable to U.S. works.  Since many foreign works were in the public domain in the U.S. while they still received copyright protection in their countries of origin, §104A also provides for the restoration of the U.S. copyrights in those works, with certain exceptions, effectively removing those foreign works from the U.S. public domain. 

The issue faced by the U.S. Supreme Court in Golan v. Holder is whether Congress exceeded its authority under the Constitution’s Copyright and Patent Clause and the First Amendment by restoring U.S. copyright protection to foreign works.

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Research Works Act Forces Debate About Access to Research Resulting From Both Public and Private Funding

The US Research Works Act (H.R.3699): “No Federal agency may adopt, implement, maintain, continue, or otherwise engage in any policy, program, or other activity that — (1) causes, permits, or authorizes network dissemination of any private-sector research work without the prior consent of the publisher of such work; or (2) requires that any actual or prospective author, or the employer of such an actual or prospective author, assent to network dissemination of a private-sector research work.”
Translation and Comments:
“If public tax money is used to fund research, that research becomes “private research” once a publisher “adds value” to it by managing the peer review.”
[Comment: Researchers do the peer review for the publisher for free, just as researchers give their papers to the publisher for free, together with the exclusive right to sell subscriptions to it, on-paper and online, seeking and receiving no fee or royalty in return].
“Since that public research has thereby been transformed into “private research,” and the publisher’s property, the government that funded it with public tax money should not be allowed to require the funded author to make it accessible for free online for those users who cannot afford subscription access.”
[Comment: The author’s sole purpose in doing and publishing the research, without seeking any fee or royalties, is so that all potential users can access, use and build upon it, in further research and applications, to the benefit of the public that funded it; this is also the sole purpose for which public tax money is used to fund research.]”
H.R. 3699 misunderstands the secondary, service role that peer-reviewed research journal publishing plays in US research and development and its (public) funding.
It is a huge miscalculation to weigh the potential gains or losses from providing or not providing open access to publicly funded research in terms of gains or losses to the publishing industry: Lost or delayed research progress mean losses to the growth and productivity of both basic research and the vast R&D industry in all fields, and hence losses to the US economy as a whole.
What needs to be done about public access to peer-reviewed scholarly publications resulting from federally funded research?
The minimum policy is for all US federal funders to mandate (require), as a condition for receiving public funding for research, that: (i) the fundee’s revised, accepted refereed final draft of (ii) all refereed journal articles resulting from the funded research must be (iii) deposited immediately upon acceptance for publication (iv) in the fundee’’s institutional repository, with (v) access to the deposit made free for all (OA) immediately (no OA embargo) wherever possible (over 60% of journals already endorse immediate gratis OA self-archiving), and at the latest after a 6-month embargo on OA.
It is the above policy that H.R.3699 is attempting to make illegal…

While SOPA grabs entertainment industry headlines, a new bill introduced in the House of Representatives in December 2011 is creating quite a stir among research scientists.  It’s called the Research Works Act.  The purpose of the bill is “[t]o ensure the continued publication and integrity of peer-reviewed research works by the private sector.”  The dispute is about public access to and control over research works that are funded by the National Institutes of Health (NIH), but that also involve significant private funding.

Eric Widera describes the negative reaction to the bill by some scientists in his post entitled Copyright and Access to Taxpayer Funded Research, on GeriPal, a Geriatrics and Palliative Care Blog.  Widera indicates that the Research Works Act poses a threat to the NIH public access policy.

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Congress Asks Copyright Office for Solutions to Improve the Adjudication of Small Copyright Claims – Public Comments Due January 16, 2012

Enforcement of a single copyright by an individual owner is often cost prohibitive.  The Copyright Office describes the problem faced by copyright owners involved in small copyright claims disputes on its website, under Remedies for Copyright Small Claims

The Copyright Act protects the gamut of works, from single photographs with little commercial value to motion pictures worth millions of dollars.  The probable cost of bringing a federal lawsuit outweighs the possible recovery for some copyright owners.  The result is that some copyright owners are unable to enforce their rights granted by the Copyright Act.  The possibility of statutory damages and attorney fees does not help these copyright owners, since statutory damages and attorney fees are not available in every case and since statutory damages and attorney fees are awarded only after the copyright owner has paid for litigation expenses.

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