The period for filing amicus curiae (“friend of the court”) briefs in the appellate phase of the Georgia State University copyright and fair use case has closed, so it is a good time to take stock of who has weighed in on each side, and what their arguments look like. Even though this will be a long post, it is still only a very sketchy summary of all of the arguments being made.
I have already written about some of the arguments made in support of the publishers who brought the original lawsuit and are pursuing this appeal after having lost in the district court. Notably, we have discussed the strange argument made, essentially on behalf of the Copyright Clearance Center, which is helping to organize and finance this quixotic lawsuit, by two former Registrars of Copyright that fair use was never intended to favor non-profit educational uses. We also noted the decision by the U.S. Justice Department NOT to get involved on behalf of the publishers.
When the briefs supporting the publishers are examined, the striking fact, to me, is that no one supports their position who does not stand to gain direct financial benefit if it is upheld. No one is arguing that giving more money to the intermediaries who are such a drain on college and university budgets is a good idea in itself, or would be a benefit for scholarship. The supporting groups like the American Association of University Presses (whose participation on this side is especially tragic), the Authors Guild and the “Copyright Alliance” are all looking to line their own pockets by supporting a reversal of the trial court. Not surprising really, nor an evil intent in the abstract, but something that is well beyond the purpose and intent of the copyright law. This is prospecting for gold on the part of the publishers, and they are trying to do it on public property.
I was interested to see that one of the parties on the amicus brief filed by the Author’s Guild was a group called the “Text and Academic Authors Association,” of which I had never heard. Was this really an group of academic authors opposed to fair use on campus? Well, only sort of. The website of this oddly named group (all authors write text; I think they mean “textbook”) shows that the majority of their leadership council is made up of non-academics or retired professors, who presumably no longer need to rely on fair use for good teaching. And the strange perspective of the group can best be judged by this article arguing that textbook prices are justified and are not too high to interfere with quality education, a perspective thoroughly debunked by nearly every study as well as by day-to-day experiences on campus. Indeed, the only sensible way to read the article is to recognize that every “myth” it undertakes to refute represents a demonstrable fact. More on this shortly.
So now lets look at the friends of GSU and some of the arguments they are making. In addition to the brief filed by GSU itself, there are at least five amici groups - The Library Copyright Alliance filed a brief on behalf of the ALA, the ACRL, and the ARL, and was joined in that brief by the Electronic Frontier Foundation. There was a joint brief from the American Council on Education, the Association of American Universities and three other higher education groups, one by the American Association of University Professors, and another from an independent group of academic authors and legal scholars. Finally, ASERL, the Association of Southeastern Reasearch Libraries, which is the nation’s largest regional research library consortium, filed its own brief (which — full disclosure — I had a very small role in assisting with).
Note how clearly these friends of the court break down between those arguing for their own private gain versus those trying to uphold a public good. Given all the rhetoric about copyright as primarily intended to benefit the public interest in hundreds of precedents, the 11th Circuit Court of Appeals cannot help, one would think, but notice this disparity.
Let’s look at some of the arguments from a few of these documents.
In the Appellees’ own brief (that’s Georgia State) we find the fundamental points that are elaborated and supported by all of the amici. Primarily, the Appellees argue that all four of the fair use factors weigh more or less heavily in favor of fair use for short excerpts provided as course readings and accessible only by students in a particular class. This argument is supported in the brief from ACE and the other university groups. The GSU discussion is especially interesting on the fourth fair use factor, impact on the market. First, it makes the point that the publishers argument about how the “easy” licensing that is supposedly available should make this factor count against fair use is circular. As many courts have recognized, this argument would undermine virtually all fair use, which Congress could not have intended (although the publishers do), and insofar as Judge Evans accepted it in the trial court, she erred. Then the Appellees go on to point out that that licensing market actually is neither easy nor comprehensive. Fair use continues to be needed in this area even if one applies a market failure standard for fair use, because the “market” for licensing, and even the CCC’s blanket campus license, fail higher education far too often. As we will see, other amici also support this point.
Two other points made in the Appellees’ brief are worth noting. First, they argue, as I have in the past, that Judge Evans’ work-by-work analysis of fair use was the appropriate approach to the case, dictated both by the nature of fair use itself and by higher court precedents. Second, they show that the publishers’ reliance on the principle of “media neutrality” is just a silly distraction (my words, not those in the brief). Judge Evans simply did not apply fair use any differently in the digital realm than it would be applied to print works; she distinguished some cases that involved print, but she did so for much better reasons, reasons the publishers would like the 11th Circuit to overlook.
The Library Copyright Alliance also demonstrates, in their brief, that all four fair use factors actually favor Georgia State’s fair use argument, supporting from a slightly different perspective the argument made by GSU and by the multiple college and university associations. The LCA goes on to argue that this fair use argument is widely-recognized in the educational community, and that GSU’s policy on copyright and fair use is consistent with widespread practices through education. One result of that fact is a clear demonstration that upholding the trial court’s finding of fair use would not have any negative effect on scholarship. Colleges and universities have relied on fair use in this way, even in the pre-digital world, for a long time. Yet scholars continue to produce scholarly works at an ever greater rate, undaunted by fair uses made of those works (and they continue, unfortunately, to transfer copyright in those works to these irresponsible publishers). Fair use supports scholarship, it does not undermine it. And the publishers have not discovered any “new” threat to scholarly production that must be averted; they simply decided that they needed and deserved more money from academic budgets.
The LCA also develops the point about the failure of the licensing market for electronic reserves and other course readings. A reversal in this appeal would not cause that market to grow. It would not, that is, actually result in more money in the system to support scholarship, even if we assume that money in publishers’ coffers did support scholarship. In fact, if the trial court’s findings of fair use were reversed, education would be harmed because fewer resources would be available for teaching, since library and university budgets cannot support the astronomical fees that publishers want to charge for licensing. The overall effect on the production of scholarly work would be negative, which undermines the fundamental purpose of copyright law in the U.S.
The ASERL brief develops this point a bit further, partly by pointing out that the licensing market touted so highly by publishers is already harming the ability of colleges and universities to teach students. On every campus it is easy to find stories about how the inability to get permission, either because of the prohibitive cost of licensing or because no license for the particular work was available, forced a teacher to changed his or her plans and resort to “plan B” pedagogy. Most librarians have had to assist such faculty to find other, less optimal, resources in those situations; it is something we do well, but wish we didn’t need to do.
Related to this point is the discussion in the ASERL brief about the cost of higher education, and the role of publishers and licensing in those costs. One statistic the brief cites shows that textbook prices have actually risen much faster in the past 30 years than tuition and fees have, which is a telling refutation of the argument made by the TAA in the article mentioned above. And the structure of digital licensing from the CCC actually contributes to accelerating costs, because the CCC will refund the licensing fees for printed course packs that are not sold, but requires that e-reserve materials be licensed for each student in the class regardless of how many times an excerpt is actually accessed or even whether or not it is used by anyone. Where, by the way, is their concern for “media neutrality” in that pricing policy?
Finally, I want to end this long post by quoting a passage from ASERL’s amicus brief that deserves to be remembered by everyone thinking about fair use. In discussing the mistaken assertion by the publishers that all fair uses must be transformative and that, in any case, fair use should be extremely limited in application, ASERL reminds the Court of Appeals that, on the contrary, fair use is an integral and indispensable part of the very structure of U.S. copyright law, without which that law would arguably be unconstitutional:
Fair use is not a rarely-used “exception” to a copyright holder’s rights that should only be applied “on occasion.” [citing arguments from Appellants brief] Rather, fair use is viewed by the courts as “necessary to fulfill copyright’s very purpose.” [citing the Supreme Court in the Campbell case]… Fair use is necessary, in part, because “[t]he primary objective of copyright is not to reward the labors of authors, but [t]o promote the ‘Progress of Science’”… [citing the Constitution and the Supreme Court in the Feist case]. And for that reason, following direction from Article III of the Constitution, the District Court was correct to apply fair use “in a way that promotes the dissemination the knowledge, and not simply its creation.” [quoting Judge Evans and again citing the Supreme Court].
All of the arguments that support BOTH the creation and dissemination of knowledge line up on the side of affirming the trial court in this case. It ought to be an easy decision for the 11th Circuit Court of Appeals. And it is well past time for scholars and universities to rebel against so-called “scholarly” publishers who try to use the courts to undermine the best interests of research, teaching and learning in a futile attempt to improve their bottom line.
A new ruling came out last week in one of the most interesting cases involving appropriation art, the ongoing dispute between photographer Patrick Cariou and appropriation artist Richard Prince. I wrote about the unfortunate decision from the district court back in 2011, and on Thursday the Second Circuit Court of Appeals reversed that decision, determined the 25 of the 30 challenged artworks were fair use, and remanded the case back to the District Court for a better decision on the remaining five.
The decision from the Appeals Court tells the story of this dispute very clearly, but just to summarize, let me remind readers that Patrick Cariou took a series of photographs of Rastafarians that were published in a book, now out-of-print, called “Yes, Rasta.” Richard Prince then made a series of appropriation art works, which included collages of the photos as well as various other alterations. The trial court in the case decided on a summary judgment motion that these art works by Prince were copyright infringement. Judge Deborah Batts, whose opinions we have had cause to regret in the past, held that a fair use defense for the appropriation art failed because the new work must “comment on, relate to the historical context of or critically refer back to the originals.” When asked what his point was in these artworks, Prince told the trial court that he did not have a point, and that was very damning in Judge Batts’ eyes; for her, his works could be transformative only insofar as they were making a comment about Cariou’s work.
In Thursday’s decision, the Appeals Court told us, and Judge Batts, that this was not the right standard for assessing transformation for the purposes of fair use.
By the way, in her original injunction, which was vacated by the Appeals Court, Judge Batts had given Cariou the right to destroy Prince’s allegedly infringing works. I wrote about this with some outrage two years ago, so it is worth noting that, to their credit, Cariou’s counsel told that Appeals Court early on that they opposed destruction of the art, even though they wanted it to be held to be infringing.
The Second Circuit begins its opinion by pointing out, in clear and forceful language, that copyright is not intended to give authors or other creators “absolute ownership” in their works, as if by natural right. Instead, the Court notes, copyright is designed to stimulate creativity and progress in arts and sciences. This is not new, but placed as it is in the opinion, it strongly reinforces the point that fair use is part of the structure of copyright, not an oddity or a mere exception for extraordinary situations. Without fair use, copyright fails in its Constitutional purpose.
As for the correct standard for deciding if a work has a transformative purpose, the Second Circuit wants a broader rule than that articulated by the trial judge. Transformation can exist even without direct comment on the original, whenever the original work is altered with “new expression, meaning, or message” (quoting the Supreme Court in the Campbell case). The new work can be transformative if it “superseded the object of the original creation” by offering “new information, new aesthetics, new insights and understandings.”
Significantly, and especially important given Prince’s refusal to assign a “point” to his work, the court wants us to look at transformation from the perspective of the viewer, not the creator:
Prince’s work could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to do so. Rather than confining our inquiry to Prince’s explanations of his artworks, we instead examine how the artworks may “reasonably be perceived” in order to assess their transformative nature.
For me personally this is very reassuring. One of the ways I frequently tell students, faculty and librarians to try to decide if a proposed use is tranformative is to advise them to ask themselves three questions. First, will the “quotation” of the original help me make my point? Second, will it help my reader/viewer get the point? Finally, did I use no more than necessary to make my point? These questions, by the way, are borrowed from LA attorney Dean Cheley, thanks to a panel we were both on at the 2012 ALA Annual conference. The part of the decision that reinforces these questions is the reference to what will help readers and viewers perceive the new message or new aesthetic. And while my “clients” usually do have a point to make, it is encouraging to see that fair use supports even appropriation art for its own sake.
Finally, the Second Circuit is very careful in its discussion of potential markets when assessing a transformative fair use. It is not enough, the Court says, that argue the new work could have been licensed, and thus assert that any fair use harms that hypothetical market for a license. Instead, the Court reminds us that the question is whether the alleged infringer has “usurped” a market in which the target audience and the nature of the content is the same as for the original. Where the audience for the new work is different, and there is nothing to suggest that the original rights holder would have thought to exploit that different audience or communicate the new message, aesthetic or insight to them, the entirely speculative possibility of a license will not undermine fair use.
In the end, the Appeals Court finds that 25 of the challenged art works are fair use. It remands only five of them back to the District Court for a new decision applying the correct standard. The chances are good, I would think, that this will never actually get back to the trial court, because some settlement, based on a licensing fee in regard to those five, is probably in everyone’s best interest. But regardless of what happens about those five art works, we now have a very strong decision about transformative fair use for appropriation art out of the Second Circuit. Although not all fair uses, as we know, have to be transformative, this kind of decision helps lend support to many of the most creative forms that teaching and learning take on our campuses.
As Duke University’s first Scholarly Communications Officer, Kevin Smith’s principal role is to teach and advise faculty, administrators and students about copyright, intellectual property licensing and scholarly publishing. 
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