In anticipation of the trial starting on Monday in the copyright infringement case brought against Georgia State University by Cambridge, Oxford and Sage publishers, and partially financed by the Copyright Clearance Center, there has been a flurry of motions, mostly relating to the admission of various pieces of evidence.  But amongst that deluge of paper is a truly frightening document, the proposed injunction that the plaintiffs are requesting if they win the case.  I have always known that there was a lot a stake for higher education in this case, but the injunction the publishers want would be a nightmare scenario beyond even my most pessimistic imaginings.

First, if this injunction were adopted as proposed, it would enjoin everyone at Georgia State, including students, who would seem to largely lose their fair use rights by virtue of enrolling at GSU.  It would apply to e-reserves, faculty web pages and any learning management systems in use or adopted in the future.  It would make GSU responsible for every conceivable act of copying that took place on their campus.  In short, administrators at Georgia State would have to look over the shoulders of each faculty member whenever they uploaded course material to an LMS or any other web page.  Arguably, they would have to monitor student copying at copiers provided in their libraries, since GSU would be enjoined from “encouraging or facilitating” any copying, beyond a limit of about 4 pages, that was done  without permission.

Not only would GSU have to micromanage each faculty member’s choices about how to teach every class, they would also have to give the plaintiff publishers access to all of the computer systems on campus so that they too could examine each professor’s decisions.

I can only imagine the angry reaction of faculty members if this requirement were actually imposed on our campuses; they might finally rebel against the exploitation they suffer from these “academic” publishers.  In any case the order quite literally asks the impossible and was apparently written by people with no functional knowledge of how higher education actually works.  The administrative costs alone would be staggering, not to mention the permission fees.

Permission fees are the real purpose here, of course.  The goal is to drive more and more money to the Copyright Clearance Center, which is the only source of permission mentioned by name in the draft injunction.  The way the injunction would accomplish this would be by entirely eliminating fair use for Georgia State.

There is absolutely no mention of fair use or section 107 of the copyright law in this proposed order.  Instead, the coping that would be permitted without permission is entirely defined by the bright line rules of the 1976 Guidelines for Classroom Copying (see pp 68-70).  Actually, it is the guidelines PLUS an additional requirement that is being sought as the sole standard for non-permissive copying.

The guidelines’ rule on brevity would entirely circumscribe such copying if this injunction were granted.  That rule permits a copy of only 10% or 1000 words of a prose work, which ever is less.  Many schools that adopt 10% as a fair use standard will be shocked to find that, under this definition, that is often still too much to be acceptable, since the 1000 word limit will usually take over.

Also, the rule about cumulative effect — a limit on the total number of excerpts that can be made — would be enforced across the entire institution.  Two classes could not use the same work without paying permission, and Georgia State would be responsible for making sure that no system across its campus was providing access to any more than two excerpts (for the whole campus and of no more than 1000 words each) by the same author.

Added to these rules from the Guidelines is a new restriction, that no more than 10% of the total reading for any particular class could be provided through non-permissive copying.  The point of this rule is nakedly obvious.  If a campus had the temerity to decide that it was going to follow the rules strictly (since the flexibility which is the point of fair use would be gone) and make sure that all of its class readings fell within the guidelines, they still would be unable to avoid paying permission fees.  Ninety percent of each class’s reading would be required, under this absurd order, to be provided through purchased works or copies for which permission fees were paid, no matter how short the excerpts were.

Not only would the minimum safe harbor for fair use that the guidelines say they are defining become a maximum — the sum total of fair use — but that maximum would be shrunk much further by this 10%/90% rule.  The intentions of Congress in adopting fair use, including its clause about “multiple copies for classroom use,” would be mocked, gutted and discarded, at least for Georgia State.

I believe that compliance with this order, were the publishers to win their case and the Judge to adopt the proposed injunction, would be literally impossible.  For one thing, the record keeping, monitoring and reporting requirements would cost more than any institution can afford, even if they were technically possible.  Also, there is really no permission market that is broad and efficient enough to meet the demand that this order would create; the CCC might get what it paid for in underwriting the litigation if this order became the law for Georgia State, but they do not have the coverage, even with their Annual Campus License, to support this kind of regime if it were broadened to other campuses and other publishers.  Yet you can be sure that if those things happen, all of our campuses would be pressured to adopt the “Georgia State model” in order to avoid litigation.

This proposed order, in short, represents a nightmare, a true dystopia, for higher education.  We can only hope, I think, that Judge Evans is clear-sighted enough, and respectful enough of what Congress intended when it passed the 1976 Copyright Act, not to adopt this Orwellian proposal, even if she finds in favor of the plaintiffs.  No judge likes to issue an order that cannot be obeyed, and this one would be so far outside the stated policies of the United States in its copyright law that an appellate court could, and likely would, overturn it purely on those grounds.

 

75 Responses to A nightmare scenario for higher education

  1. Russ says:

    John 11:35

  2. suzi w. says:

    in agreement with Russ. (and grateful for the laugh I got when I Googled the reference.)

  3. Rick Huard says:

    The CCC’s annual blanket license . . . an offer you can’t refuse.

  4. [...] Smith, the scholarly communications officer at Duke, explains why you should care about the copyright infringement case against Georgia State University: First, if this injunction [...]

  5. CB says:

    Kevin, we are our own worst enemy when it comes to academic intellectual property. I’m speaking here of tenure policies, which all too often require academic researchers to fork over their rights to their intellectual property to commercial publishers. These yahoos aren’t academic, regardless of their markets.

    Not only do we need a new distribution model for scholarly work, we need a sea change in how we evaluate the work of academics. We’ve offloaded this work to publishers for too long. It’s time to take back our own.

  6. MG says:

    Unfortunately, I don’t think most faculty can be shaken out of their slumber. The tenured folk are part of the problem. I have firsthand experience with how complacent and subservient university faculty tend to be.

  7. [...] Center and a series of academic journal publishers are suing Georgia State University. Duke’s Kevin Smith explains: First, if this injunction were adopted as proposed, it would enjoin everyone at Georgia [...]

  8. rosignol says:

    I have a difficult time working up any sympathy for higher ed on this one. Go spend some time in a campus bookstore for a while if you want to know why.

  9. teapartydoc says:

    This is a microcosm of the problem’s brought about by trying to solve all of society’s problems by writing laws. Copyright laws were originally intended to prevent the profit by another company of the gains to be made in newly produced material. This kind of activity provides no profit to the individuals involved, it is merely looked upon with jade-colored glasses by the publishers as potentially lost revenue. Also, in the past, enforcement of copyright was less complex, because it involved going after a centralized violator, a company. Now the publishers are trying to enlist a myriad of enforcement actors by engaging, not only the courts and law enforcement, but the very “violators” themselves. This is a form of indentured servitude.

  10. [...] interesting article on a current lawsuit against Georgia State University. Serious [...]

  11. SSE says:

    What is the basis for the specific restrictions the plaintiffs include in the proposed injunction? Are they just making this up out of whole cloth? It would certainly appear so (e.g. a complete poem if less than 250 words and printed on less than 2 pages).

  12. [...] stakes however keep getting higher. This post outlines the lawsuit several publishers have brought against Georgia State University. A quick [...]

  13. Azrael says:

    Richard Stallman actually called this one some time ago:

    http://www.gnu.org/philosophy/right-to-read.html

  14. David Walker says:

    Does this proposed injunction allow for a class in Shakespeare to be taught without paying fees to anyone? Obviously the Shakespeare works are out of copyright, but the way I read the terms in this article, the instructor would be forced to use 90% pay material, regardless of actual copyright.

    It certainly would give the overlords the ability to monitor the use of works with copyrights expired, which is something I don’t think they need.

  15. mark lance says:

    There is a simple response to this sort of extortionist power move: eliminate academic publishers. It really isn’t hard these days. What do they actually contribute to the process? Academics write the books. Academics review the books. Academics make the changes. The presses contribute an editor (sometimes) and produce the actual book. (And also insert all sorts of considerations into the review process that shouldn’t be there.) The vast, overwhleming, majority of academic books make no appreciable money for the authors. So let’s move to a model like the journal Philosophers’ Imprint – and there are many others. Set up academic based editors – just like journals – do all the reviewing as normal, hire in-house editors at university libraries, and then publish the articles on-line or print-on-demand at cost, with fair use standards. This will cost libraries a little for the editors and hosting the web sites, but then they will get all academic titles for free. A huge net savings. So there is no need to seek profit in this business. (PI has analyzed the relative costs.) We still have peer-review – indeed, more respectable forms of it since now sales aren’t an issue as they routinely are with publishers. There is no outrageous gouging of students for text books. The material is freely available.
    Who loses? Publishers – don’t care. A few prof’s who make a significant amount of money on popular text books. (I really don’t care about that either, but if they want to try to compete, they are welcome to keep using the old model.) And everyone else benefits enormously.

  16. Dov says:

    There’s no simple way out of this problem but clearly, these companies need to be sent a strong message that this sort of behavior will not be tolerated.

    A consortium of Universities threatening to drop all contracts with the companies involved would solve this right away. It is not necessary to drop journal subscriptions. Just the threat of stopping all purchases of textbooks from these companies would result in an instant settlement IF a large enough group of Universities agree to do so.

  17. [...] Duke Library’s Kevin Smith, an update on what academic publishers want from the Georiga State Copyright Case that’s now [...]

  18. Cracker Librarian says:

    If this were a random attack, I would agree. However; from what I have read, Georgia State flagrantly violated copyright law that other universities were observing when it put entire editions of books on its course reserve system and then failed to block access to that system for the general public. This means the book that was put on reserve for a student in intro biology became usable by someone in Kentucky who had no ties to Ga. State. Then, they left these materials up even after the semester was over.

    You blew it guys … I dislike the stranglehold traditional publishers have on scholarly resources, but you gave them the ammunition. Some of my colleagues tell me you did this to try and force a change in the laws. If that is the case, then you should have known they would come after you with full force. To cry “no fair” now when YOU violated all commonly accepted terms of “Fair Use” is a bit silly.

    But look on the bright side – you can use this issue to force Ga State to remove photocopiers from campus and start the “paperless revolution” we have been preaching since at least 1990, and rely on gold-standard open-access publishers!

  19. [...] University’s Scholarly Communications Officer, Kevin Smith, recently posted about a lawsuit against Georgia State University brought by Oxford, Cambridge, and Sage publishers. I’m not exaggerating when I say [...]

  20. Mary E. says:

    Perhaps it’s time to switch to mostly texts that have creative commons permissions?

    • Absolutely, but remember who’s authoring those texts – educators who are looking for an additional source of income. What incentive do they have to publish their work under CC, when they can extort money from infringers through litigation?

  21. Brian says:

    “Not only would GSU have to micromanage each faculty member’s choices about how to teach every class…”

    That’s overly broad. This is not about *teaching*, it’s about the (restrictions of the) law, and the attitude and/or disregard of that law by faculty. Faculty and institutions would not put up with student plagiarism, so why should publishers put up with faculty not *at least* seeking permission to use copyrighted materials? Granted, working with the CCC can be a pain. I know, I’ve tried. But pretending they don’t exist is a recipe for disaster.

    If you don’t like the law, then work to get it changed… but don’t whine about enforcement. If society decides to only selectively enforce laws, why bother with them in the firs place?

  22. Is anyone really shocked by the grasping tactics of the copyright holders here? The only reason copyright keeps getting extended is so that the biggest rights holders can monopolize their intellectual property for a bit longer and extract the maximum amount of money from the paying public (“Thanks, Disney!”). The educational publishers don’t care about education — they care about making money. Don’t let the fact that they publish literary anthologies or articles on anthropology confuse you; in the end, it’s all about the money.

    The really ridiculous part of the tale is that education even at ostensibly “public” universities is already so overpriced and full of bloat, that it’s almost laughable to say that this is the straw that will break the camel’s back. As unfair and wrong as it is to anyone with even a lick of moral sense, apparently no one had the foresight to see that this is precisely the kind of bondage imposed by the copyright laws.

  23. What more does it take before we in higher education begin working together to move away from these parasites and develop our own sufficiently comprehensive repositories of open educational resources? Commercial publishers need us — we do not need them!

  24. [...] Not only would GSU have to micromanage each faculty member’s choices about how to teach every class, they would also have to give the plaintiff publishers access to all of the computer systems on campus so that they too could examine each professor’s decisions. (Duke University Libraries) [...]

  25. Kevin, many thanks for bringing this to our attention.

    FYI, you’ve been “slashdotted” — http://news.slashdot.org/story/11/05/19/0248238/Academic-Publishers-Ask-The-Impossible-In-GSU-Copyright-Suit.

    We’ll be watching your blog, and this trial with understandable interest.

  26. Mankel says:

    I hope they win. I mean the publishers. Then, more and more people would realize what a bunch of scammers most of copyright-holder business are.
    Seriously, most of the works used in academia are papers that are contributed for free or even paying by researchers, and if “fair use” doesn’t cover most of the rest, then it is clearly a case of unfair use by publishers.
    Finally, this is a by-product of the policies that the USA and other countries are devising regarding the distribution of music and movies. Remember that copyright was implemented as a safeguard for authors against publishers. Now it is a weapon in the hands of “copyright holders”.

  27. Nathaniel Graham says:

    GSU cannot comply with the injunction, even if the court insists on it. To do so would violate federal law on a large scale. Numerous computers on any college campus store data such as grades, financial information, social security numbers, etc–all of which is privileged and cannot (according to federal law) be disclosed to a third party without the explicit approval of the individual. Allowing publishers the access necessary to police professors would clearly allow those publishers access to any other data. All that goes double for universities that operate a hospital.

  28. Rigby Reardon says:

    So, the publishers don’t want us to use their textbooks. Fine. I’ll assign open resources to my students.

  29. [...] copyright infringement at Georgia State University. A wide range of observers consider it ‘A nightmare scenario for higher education’ because of the far-reaching restrictions the injunction may bring should the court ruling be [...]

  30. PubLord says:

    If you can’t do the time, don’t do the crime.

    Georgia stole. And if the punishment is stiff, it’s because an example must be made. You may not like the behaviour of rightsholders, but at least it’s on the right side of the law. Unlike Georgia’s behaviour, which was flagrant infringement and led to lost sales.

    Let’s not confuse the unpopularity of publishers with criminal behaviour. Georgia was no better than the likes of Pirate Bay in this respect.

  31. [...] “Nightmare scenario for higher education”: copyright case against Georgia State seeks sweeping injunction [Duke University Libraries] [...]

  32. [...] the topic of free access to scientific and scholarly research, a lawyer and IP-law expert at Duke calls attention to an IP protection lawsuit against Georgia State University and warns that the outcome could set a disastrous precedent for [...]

  33. John Hopkins says:

    Supposing everyone started to put pdf textbooks onto the p-2-p network, torrenting them, students would begin to grab those instead of the hardcover textbooks, just like they get their music and video content. This would blow a huge hole in the publishing cycle, as it did to the bloated music production industry. The only down side is the effort it takes to convert a hard-cover book to a pdf — it takes about a days work to scan a 300-page text… but if folks would do that with the big sellers, the academic publishing industry would have to change its model of exploitation. (I’m not suggesting that anyone DO this, it’s just a hypothetical thought-experiment

  34. Philipp M says:

    It is interesting to see in what contrast this stands to the private practice of many academics (at least in the humanities) who use library.nu, a page that offers free (but obviously illegal) scans of most academic books!

  35. Oh, look, people whining about having to pay for content and follow *the law* – serves them right, since professors get to rape students’ wallets by “publishing” their own drivel and require students buy it as required class reading.

    If teachers were forced to license their educational texts either as public domain, or some CC-license, I might have *a little* sympathy for schools like GSU, but frankly, they’re getting what they deserve, by creating, encouraging and participating in the very system that’s going to hang them.

    • Cat Typist says:

      @Dossy Shiobara

      Dossy, considering that the publisher’s proposal would further “rape the wallets” of students at the university, and remove those students’ own rights of fair use as individuals, I think your “serves them right” argument does not excuse the proposal’s further harm to students.

  36. The author cites the intention of legislators in the Copyright Act of 1976 which largely predates digital communications. What about the TEACH Act of 2002 which significantly modifies 1976 and the intent of the framers of the US Constitution? This essay on the purpose of copyright focuses on the latter and is, I think, very instructive here: http://www.open-spaces.com/article-v2n1-loren.php

  37. [...] The copyright infringement case currently pending against Georgia State University could have really nightmarish consequences. [...]

  38. [...] ‘A nightmare scenario for higher education’ – blog post by Kevin Smith, Duke University’s Scholarly Communications Officer.    (Well worth reading.) [...]

  39. [...] actually works,” Kevin Smith, a scholarly communications officer at Duke University, wrote in a blog post after the injunction was [...]

  40. KH says:

    I’m curious: if instead of faculty and students wanting to use book chapters and journal articles without a fee or permission, the general public was wanting to come sit in on university classes (don’t worry, I’ll just be here for a few lectures), would the outrage be the same?

  41. Allen says:

    A case involving liberal professors,litigation and a judge, and government. A recipe for disaster from the start.

  42. rmf says:

    Can anyone point me to a play-by-play of the violation which brought this suit?

  43. [...] Of course, just because it’s labeled dystopia doesn’t mean that it doesn’t have a real-world precedent. [...]

  44. music_librarian says:

    There are several ways to remedy this situation. The first is to lobby Congress to restore sanity to our copyright legislation. Copyright was never intended to last so long – the entire point is to balance the interests of the creator/author with that of the public. The pendulum has swung so far in the other direction that it is stifling scholarship and creativity.

    Since I’m not going to hold my breath waiting for Congress to actually do something about this, we seriously need to consider the role of academic publishing in the tenure system. We all know that in order to get tenure, you have to publish in specific publications in your discipline. Publishing your article in an open access, online journal (even if it happens to be peer-reviewed) is not looked upon with favor by tenure committees. The same goes for publishing monographs. Academia is perpetuating this ugly cycle, and it is unsustainable. Journal costs have skyrocketed, and continue to do so. Library budgets cannot keep pace, and we have to make difficult decisions about what we can or cannot purchase.

    Finally, we must remember that fair use is a “use it or lose it” concept. If we allow publishers to gut fair use to this extent, there will be a chilling effect on all types of scholarship. In the library world, we are increasingly hearing about cases where a scholar had a clearly defensible case for fair use, but was forced to omit content because the publisher was threatened with a lawsuit. Litigation takes up a lot of time and money, and too often, we are willing to retreat rather than defend our positions.

  45. Kate Holland says:

    Well, this situation already exists in Canada, where there is no fair use. Librarians police faculty members, universities police students and the copyright holders go round looking for “illicit photocopying shops.” I can tell you as a faculty member at U of Toronto, it ain’t pretty.

  46. Geoff says:

    As a student taking online courses and obtaining the vast majority of my academic materials through the electronic libraries and bulletin boards associated with my campus, if this lawsuit succeeds, I can see my academic career vanishing in a puff of smoke as the cost goes through the roof.

    Many major Universities have their own publishing arms. Time to kick the commercial publishers to the curb and publish in house or through cooperative agreements with the various university presses. And time to give a big middle finger to the Copyright Clearance Center.

  47. [...] Smith, Duke University’s first Scholarly Communications Officer, in a piece entitled "A Nightmare Scenario For Higher Education".  Smith notes several revelations about the injunction, which would first seek to make Georgia [...]

  48. [...] Smith, Duke University’s first Scholarly Communications Officer, in a piece entitled "A Nightmare Scenario For Higher Education".  Smith notes several revelations about the injunction, which would first seek to make Georgia [...]

  49. [...] Smith, Duke University’s first Scholarly Communications Officer, in a piece entitled "A Nightmare Scenario For Higher Education".  Smith notes several revelations about the injunction, which would first seek to make Georgia [...]

  50. Shawn says:

    By allowing educators to anticipate possible future influences on education, scenario planning can help them become more resilient in the face of change.

  51. George says:

    There is enough here about the impracticality. The key issue is the economics. The costs of administering this will not be swallowed by publishers or taxpayers, they will be pressed on to students in tuition hikes. The real losers are all the students who cannot afford further increases.

  52. [...] making materials for students available via the library’s electronic reserves. In a post on Duke University’s scholarly communications blog, Kevin Smith, the university’s scholarly-communications officer, describes the [...]

  53. [...] included a live-studio-audience broadcast of Digital Campus, much of which was spent discussing the suit that has been filed by Oxford UP, Cambridge UP, and Sage Publishers have filed against Georgia [...]

  54. Kenneth says:

    I have a Ph.D., which means I went to college for a long time and took a lot of classes. Never once was I assigned a required text for the course that was written by the professor. Not one time. Never. Zero. That this happens frequently is a myth, plain and simple.

  55. [...] “A Nightmare Scenario for Higher Education” by Kevin Smith. Here’s an excerpt: [...]

  56. George TDT says:

    “Not only would GSU have to micromanage each faculty member’s choices about how to teach every class, they would also have to give the plaintiff publishers access to all of the computer systems on campus so that they too could examine each professor’s decisions.”

    This is the key.

  57. yoli oliver says:

    Unfortunately, I don’t think most faculty can be shaken out of their slumber. This was a dissaster from start

  58. [...] as we pay those bills what these publishers are doing. Sage is one of three large publishers that are suing us, that want us to pay per student every time a reading is assigned in class, that are striving to [...]

  59. [...] to stave off potential liability. And it’s understandable why the universities pay: the Center is now partially financing a 2008 lawsuit filed by an academic publisher against Georgia State University, which did not pay [...]

  60. [...] as we pay those bills what these publishers are doing. Sage is one of three large publishers that are suing us, that want us to pay per student every time a reading is assigned in class, that are striving to [...]

  61. Open Excess says:

    [...] as we pay those bills what these publishers are doing. Sage is one of three large publishers that are suing us, that want us to pay per student every time a reading is assigned in class, that are striving to [...]

  62. [...] to stave off potential liability. And it’s understandable why the universities pay: the Center is now partially financing a 2008 lawsuit filed by an academic publisher against Georgia State University, which did not pay [...]

  63. Cat Typist says:

    Perhaps the purpose of the proposed injunction is not to be accepted as fair, but rather one or more of the following:

    1) As a negotiating tactic, to make a very extreme demand. (Even in societies that customarily haggle, people do not necessarily demand exactly what they want; they start off by proposing a relatively extreme position. In the United States, some people hope to slant the perspective of everyone involved by making sufficiently extreme demands. You have probably seen this happen in politics.)

    2) In hopes that the final verdict or settlement will be *not* the same as the proposal, but will be sufficiently burdensome and practically impossible, that the university’s failure to fully comply with the implausibilities can be used against the university in future negotiation sessions or lawsuits.

    3) An opportunity for the lawyers proposing it to show their clients that they are pressing their client’s opponent hard and being ‘tough on them.’

    4) More difficulties placed in the way of reaching a final settlement, so that the case can play out longer and the lawyers can rack up more billable hours.

  64. [...] stave off potential liability. And it’s understandable why the universities pay: the Center is now partially financinga 2008 lawsuit filed by an academic publisher against Georgia State University, which did not pay [...]

  65. [...] responsabilidad. Y es comprensible por qué las universidades pagan: el Centro está financiando parcialmente una demanda presentada en el 2008 por un editor académico contra la Universidad Estatal de Georgia, que no [...]

  66. [...] you are responsible for making sure that you adhere to copyright law. There have been a rash of copyright lawsuits of late so beware. Again feel free to come by the Media Center with any [...]

  67. [...] and legal theory than they do to the laws which have been passed by Congress. Had this lawsuit gone the way the publishers wanted, it would likely have affected the very concept of fair use. At the least, institutions everywhere [...]

  68. [...] University’s copyright blogger has claimed that a victory for the publishers would have been “a nightmare scenario for higher education,” for not only was the publishers’ reading of “fair use” extremely restricted, its [...]

  69. [...] writes “A Duke University blog covers the possible ramifications of a motion in the copyright case against Georgia State University. Cambrigde, Oxford, and Sage have proposed an injunction that would first enjoin GSU to include all [...]