I do hope most folks either have read or will read Brandon Butler’s “Issue Brief” for the Association of Research Libraries, which does a great job of analyzing the ruling.

The main thing that struck me as I read the fair use discussions for the individual excerpts that were in question in the case is that Judge Evans really did understand that fair use is a balancing test.  Although some parts of her reasoning are more mechanical than I would like, she does not take a bright-line view of any of the factors.  It seems worth a look, to me, at the way she relates the four factors in her discussion.

First, she finds that the first two factors — the purpose and character of the use and the nature of the original — always favor fair use in regard to the specific use and the specific works before her.  This is true even though she declines to hold that the provision of short course readings is transformative, which is the key determinant in most fair use rulings over the past few decades.  Instead, she sees this activity as at the heart of what fair use is intended to be, according to its own express terms.  On the nature of the original, she holds that the works in question were all published and factual in nature.

This point about the second factor is likely to be the focus of some disagreement from the publishers.  They wanted the court to hold that factor two did not favor fair use, apparently because of the effort involved in writing and publishing academic works.  No one is more respectful of the labor of scholarship than I am, but hard work by itself does not get one a copyright or insulate one’s copyright from fair use.  The Judge observed that educational works are exactly the works that fair use is focused on, with its favored purposes of research, scholarship and teaching.  She also noted that permission fees make up no part of the incentive for academic authors to write their works (p. 81ff).  This, to my mind, is the key reason for finding that factor two favors fair use in this case (although the Judge called it an “additional consideration”).

On the other side of the analysis, Judge Evans presumed, at least as an initial matter, that factor four, the impact of the use on the market for or value of the original, always favored the plaintiffs, which is to say it counted against fair use.

Which brings us to the third factor, the amount used.  This was the “swing vote” in most of the individual analyses, and the Judge applied a clear but quite narrow rule.  Ten percent of a work was acceptable as fair use if the book had fewer than 10 chapters, and a single chapter was considered fair use for books that contained 10 or more chapters.  This rule, which was applied quite strictly to decide if a “decidedly small” portion of the work had been used (that was the standard Judge Evans applied for this particular type of use), had some odd results; as little as 3% of a work was considered too much for fair use in a situation where the work was long and had many chapters.

But notice something important.  When the third factor disfavored fair use, the factor analysis stood at two in favor (one and two) and two against (three and four).  In those cases the Judge went on to do additional analysis, asking several further questions.  Was the heart of the work used? (she declined to assume that all e-reserve uses involved the heart of a work)  Was there a “readily available” license for reproduction of the excerpt in digital form? Were licensing fees an important part of the value of the original work in question? (Judge Evans held that they usually were not, so this was an important question).

The results of this additional analysis were what finally determined whether or not a use was fair if the third factor threshold the Judge had set was exceeded.  When the amount used was within her guideline of 10% or one chapter, the availability of a license for digital distribution did not sway the analysis against fair use.  And when a license for a digital excerpt was not available, the amount used was less important (although the leeway here is small, for Judge Evans).

If this rule about amount seems unduly restrictive, libraries would do well to remember three other findings from the ruling that impact how we might view this guideline.  First, she held that percentages should be calculated based on the total number of pages in the book, which makes for a much easier and quicker determination of amount than the method of counting the plaintiffs sought.  Second, she held that individual chapters by different authors in an edited volume should by counted by the same method and not as if each were an individual work, which also simplified the process of decision-making.  Third, she rejected the idea that a use that was fair use in one semester must be paid for in a subsequent semester.

All three publisher plaintiffs, along with the two organizations (the Copyright Clearance Center and the Association of American Publishers) that bankrolled them, have now issued initial responses to the verdict.  Overall their objections are quite vague.  Several of the responses refer to legal or factual “errors” in the ruling, but they do not specify what they are.  The AAP does disagree with the Judge’s finding that the loss of permission revenues because of fair use imperils their business; they repeat this absurd claim even after the Judge pointed out, based on figures supplied by the plaintiffs themselves, that these publishers made less than one quarter of one percent of their 2009 revenues from academic book and journal permissions.

All of the publishers assert that there is error in the judge failing to consider what the AAP calls the “full context” of the activities at GSU.  Sage and Oxford (who issued identical statements) suggest a “pattern and practice” of infringement , while Cambridge refers to “systematic and industrial-scale unauthorized reproduction.”  It is hard to know what to make of these assertions, other than that they arise out of sheer frustration.  Since the Judge has just found that only five of the excerpts before her were infringing, “systematic” and “pattern” seem like inappropriate words.  The Judge had to decide the case based on the specific allegations and evidence before her, and the plaintiffs were the ones who produced those allegations.  So if only five out of 99 (or 75, depending on where you start counting) were infringing, no pattern of systematic infringement has been proved.

The Cambridge statement has the strongest hint of an appeal, saying that they look forward to working with their “partners” to “resolve this issue.”  It also has the chutzpah to evoke “our authors” as victims of the ruling.  How many times can we repeat what publishers hate to admit in public, that the vast majority of academic authors are not paid for their scholarly writings (by publishers, at least) and do not consider permission fees when deciding whether, what or where to publish?

So where do we go from here?  We need to remember that this is only a District Court ruling, which is not binding on any university other than GSU, that no remedy has yet been ordered, and that it is likely to be appealed.  Nevertheless, it is a carefully reasoned ruling with lots of specifics for libraries and universities to consider.  Some institutions may decide that the Judge has defined a safe harbor and that they want to anchor there; in that case it is worth noting that some of the analysis she applies would be difficult to replicate without detailed financial information from publishers.  More likely, schools will look at this ruling and tinker with their own policies a bit.  Given both its substance and the still-early stage of the proceedings (really, even after 4 years and 350 pages this is not the final word), this decision is not, in my opinion anyway, a cause for large-sale or precipitous changes at most institutions, a fact that even the publisher statements seem to admit.

That means she found fair use, or, occasionally, some other justification, in 94 instances, or 95% of the time.

But that does not make this an easy decision for libraries to deal with.  Indeed, it poses a difficult challenge for everyone involved, it seems.  For the Judge, it was a monumental labor that took almost a year to complete.  She wrote 350 pages, working through a raft of legal arguments first and then painstakingly applying them to each of the challenged readings.  And for me, with a week’s vacation pending, I am trying to make sense of this tome before I leave, which is why I am writing this at four in the morning on a Saturday (please excuse typos!).

For the publishers who brought the suit – Oxford, Cambridge and Sage – there are some bitter disappointments.  Judge Evans explicitly rejects the Guidelines for Classroom Copying as the standard to be applied.  She also found the two major cases on which plaintiffs relied, American Geophysical Union v. Texaco and Princeton University Press v. Michigan Document Services, to be inappropriate analogies for the situation before her.

One holding that is certain to generate much discussion is Judge Evans’ rejection of the so-called “subsequent semester” rule, which had evolved from the Classroom Copying guidelines and led many institutions to assert that a liberal interpretation of fair use was permissible once but that permission had to be sought for subsequent uses of the same text.  Judge Evans found this restrictive approach to be “an impractical, unnecessary limitation” (p. 71).

Perhaps most distressing for publishers is the Judge’s statement that permission fees are “not a significant percentage of Plaintiff’s overall revenues” and that their loss through the assertion of fair use does not threaten the publishers’ business.  She calls this latter argument “glib” (p. 84).

In spite of all this, there are significant aspects of this ruling that will prove very difficult for libraries as well.  Two aspects seem especially likely to stir up consternation.

First, the Judge applies a strict standard for the amount of a work that is permissible under fair use in this situation.  The percentage she selects is 10%, or a single chapter.  In putting this percentage into practice, she bases the calculation on the total page count of a book (this was an issue at trial, with publishers arguing that only the actual text of the work should be counted), and rejects any distinction for books that are edited, in which each chapter has a different author (p. 88).  This is a less flexible standard than many libraries would like, I think, and it seems too rigid to be a good fit with the overall structure of fair use.

Second, the Judge bases many of her analyses of the fourth fair use factor on the percentage of the overall revenue that publishers realize for a particular title that comes from permission fees.  She criticizes the GSU policy for not providing sufficient guidance for making a determination about this kind of market impact, but immediately acknowledges that the standard she is applying “would likely be futile for prospective determinations (in advance of litigation)” (p. 337).  This is simply an unhelpful approach, since libraries and faculty members must make such prospective determinations without knowing all the information that publishers provided, under court order, to the judge.  Recognizing this, Judge Evans says that “the only practical way to deal with factor four in advance likely is to assume that it strongly favors the plaintiff-publisher (if licensed digital excerpts are available) (p. 338).

Hard as it may be to be told to make this assumption, even though the judge has found it not to be the case in most of the instances before her, we should pay attention to her qualification of it.  The permissions we should look for are those available for digital excerpts.  In another place she asserts that she will consider the permissions market in the fourth factor analysis only when a license is “readily available” at a “reasonable” price for a “convenient” format (p. 89). She explains that the license must, to qualify as convenient, allow digital excerpts.  This standard is actually hard for some publishers to meet in their current licensing postures.  No infringements of Cambridge works were found, for example, probably in part because Cambridge allows only very limited licensing through the CCC.  If publishers do not license in a way that facilitates reasonable educational use in the digital environment, the fourth factor will, she seems to be saying, cease to favor them.

Two more quick points, and then I will try to summarize the fair use analysis the Judge is recommending.

First, it is very important that the Judge finds that GSU’s copyright policy was a good faith effort to comply with the copyright law by interpreting fair use (p. 338). She criticizes the policy on two points – its failure to define the strict percentage limit she says is necessary and for not providing guidance about market harm, which she admits would be impossible.  But she does not believe the policy was a sham or merely “cover” for doing whatever the faculty wanted, as publishers asserted.  This would be a significant finding if money damages were at issue, due to the waiver of statutory damages in the law for educational institutions that make good faith fair use decisions.

The second point I think is interesting is the fact that Judge Evan considered hit counts when making determinations about some of the disputed excerpts.  In some cases she cuts short the fair use analysis because hit counts suggest that no students actually read the material.  In those cases she calls the copying “de minimis” and ends her analysis (see p. 96, i.e.).  This means that it will be hard to dispute about specific readings without knowing whether or not they were actually read (we know, sadly, that many such assignments are not).  Putting infringing material in a system, apparently, is not enough to establish liability; plaintiffs will have to show it has been used.

So here is the bottom line on the fair use analysis Judge Evans has outlined (pp. 87 – 89 of the opinion).  The first factor – purpose and character of the use – heavily favors fair use because it is for non-profit teaching and research.  She mentions the section 107 reference to “multiple copies for classroom use” and she does not employ a “transformational” approach.  She finds that the second factor also favors fair use, since all of the works at issue were non-fiction and educational in nature.  The third factor can go either way, depending on whether or not the excerpt is less than 10% or a single chapter.  The fourth factor is where the difficulty lies; Judge Evans finds that it “heavily favors” the plaintiffs IF a license for the appropriate format is readily available at a reasonable price.  There is lots of room to debate this part of the analysis, and lots of uncertainty, I think, about how it can be applied.

The Judge has deferred any action on crafting a remedy for the few infringements that she found.  She has asked the plaintiff to suggest an injunction, which will be difficult to craft to fit this ruling and will have to look very different from the one they suggested 18 months ago.  GSU will have a chance to object to any draft injunction, so the remedies phase of the case will go on for a while.

In general I expect librarians to be happy about the outcome of this case.  It suggests that suing libraries is an unprofitable adventure, when 95% of the challenged uses were upheld.  But there will also be a good deal of hand-wringing about the uncertainties that the Judge has left us with, the places where we need information we cannot reasonably obtain, and the mechanical application of a strict percentage.  We will spend considerable time, I think, debating whether and how to implement Judge Evans’ rules into our own copyright policies.  In the meanwhile, of course, the ruling is nearly certain to be appealed.

(Note that the opinion is not yet up on the free sites that I usually link to, but three different comments to  my previous post have provided links to PDF copies)

The latest such lawsuit, filed on March 16 in the Southern District of New York, comes from three major textbook publishers – Pearson Education, Cengage Learning, and MacMillian Higher Education – and targets a new Internet-based business called Boundless Learning that purports, according to the complaint, to create textbooks, using open educational resources, that parallel and can replace the high-priced textbooks that each of these publishers offer.  The sum of the complaint is that Boundless copies the selection, arrangement and organization of their textbooks much too closely and so constitutes copyright infringement.

One should never form conclusions about a lawsuit based only on the complaint, which is inevitably just one side of the story and is always pitched to make the defendant’s behavior look as dastardly as possible.  Nevertheless, it seems safe to conclude that this lawsuit is not as farfetched as some of the ones we have seen recently.  The plaintiffs are really just asking the court to help draw a line that has never been very clear in copyright jurisprudence, the line between idea and expression.  Their description of the situation makes it sound like the placement of that line is obvious, but it probably is not.  What it certainly is, however, is a vital line for higher education to examine and understand.

I occasionally run across an interesting assumption about copyright, which I think is common both in academia and in the wider world.  It is the belief that if you want to reuse an image or a figure without permission, you can simply redraw it and avoid all copyright entanglements.  Like all simple rules in copyright, this one is not true; the standard for infringement is “substantial similarity,” and a redrawn figure or image that is substantially similar to the original could still be found to be infringing.  Far better, I tell those who raise this possibility with me, to use the original figure or picture in a way that supports the assertion of fair use, or to get permission.

From the complaint, it sounds like Boundless Learning is doing something similar to this “redrawing” in hopes of avoiding copyright problems.  The plaintiffs assert that Boundless creates “shadow versions” of their copyrighted textbooks, imitating the arrangement of topics and sub-topics, the depth of coverage for each area, and even the choice of illustrative examples.  I fail to see how a running and a fishing bear illustrate the First and Second Laws of Thermodynamics, but the complaint claims that the Boundless biology text imitates Pearson’s standard text on the subject down to such similar, but not identical, pictures.

So the question is directly posed about where the line between idea and expression is to be fixed.  Is the example of a bear merely an idea, which cannot be protected by copyright, or does it represent a creative and expressive decision by the Pearson authors which is infringed even by a different picture?  To put it another way, how much actual expression must be copied, if any, to infringe on another’s protected expression?  We have seen the “derivative works” right expand a great deal over the years, so that today even characters in a work of fiction are often protected even when the alleged infringing character copies no actual expression from the original (as in the recent Catcher in the Rye sequel case).  Is there a boundary on that right?

Since scholarship is an inevitably cumulative process, in which each new work builds, more or less explicitly, on what has been done before, the boundaries of the derivative works right and the line between protected expression and public domain ideas are very important to understand.  If this case brings us a little more clarity, that would be good.  But the judge will need to be very careful not to develop rules that would inhibit the basic processes of teaching and research.

Finally, I want to point out an oddity I noticed in the complaint that was filed to initiate this case and which will bear watching (no pun intended).  In addition to naming Boundless as a defendant, the complaint lists 10 “Doe” defendants; people who are alleged to be complicit in the claimed infringement but whose names are not known and can only be discovered through court orders.  Naming such John and Jane Does is a common technique in file sharing lawsuits and in some of the more notorious copyright “trolling” cases.  But in this complaint it is quite odd, because we have no real clue what role these people are alleged to have played or why they are being sued.  Are they students who have ordered “shadow” textbooks from Boundless, employees of Boundless, or faculty members who have recommended Boundless to impoverished students? As the case goes forward, we may learn something about how to draw the line between idea and expression, and we may also discover just who the publishers are willing to target in their campaigns to use litigation to protect their markets, if and when the identities of these Doe defendants are revealed.

It seems the university system has been surprised by the opposition the policy has generated, but such surprise speaks poorly of their awareness of the realities on their own campuses.  I am reminded of the surprise that content industries have expressed at the opposition to the Stop Online Piracy Act or the European dissent over ACTA.  What, exactly, did they expect?  The days when no one pays attention to such policies are past, and that is a very good thing.

The works created by faculty raise a complicated situation in a couple of ways, and need to be treated differently than works created by employees in a corporate environment.  For one thing, there is the issue of academic freedom.  Although the copyright law could well support the claim that all faculty works, even traditional scholarship like journal articles and books, are work for hire, the case would be much more complicated than the university system seems to imagine.  As I say, academic freedom would pose a unique obstacle, since courts have recognized a First Amendment interest in academic freedom.  So there is a constitutional argument could be used to counter a work for hire claim at a public university.  Also, there would be an argument over the traditional “teacher exception” that courts recognized for many years.  Although there have been no decisions definitively invoking the teaching exception since the 1976 Copyright Act took effect, it would still provide a line of defense against work for hire claims that the universities would struggle to overcome (this article by one of the scholars quoted in the article explains this ambiguous situation).

Then, of course, there are the practical problems.  Having a policy like this is sure to make it harder for the universities in the Louisiana system to recruit top faculty.  Even if individual campuses modify the policy into something wholly different than the system-wide template, which they would be wise to do, the question will always hang over recruitment, and the balance of decision-making may be tilted in some cases involving highly productive  and savvy professors.  On the university side, the mountain of paperwork they will create for themselves if they really undertake to review every contract for publication seems not to have occurred to the drafters.  But any small additional profit they could hope to make by claiming a portion of royalties is sure to be devoured by increased administrative costs.

As I read the article, I was struck by the sense that the university system was trying to create a single policy that would treated patented works and those subject to copyright in the same way.  Any superficial sense that this might seems to make is easily dispelled, however; there a good reasons to deal differently with these two varieties of intellectual property.  Copyright, for one thing, is easy and cheap to get.  It is, in fact, automatic whenever original expression in fixed in tangible form.  There is no need for the university employer to intervene to help the employee creator protect her rights.  With patents, the situation is wholly different.  Patents are difficult to get and it usually requires an investment of tens of thousands of dollars to successfully “prosecute” a patent.  And patents, when they generate a profit (which few actually do), offer much larger gains.  So creators need more help from the university to get a patent, and universities have a greater incentive to provide that assistance, than is the case with copyright.

Also, the “significant use of university resources” is really quite different with copyrighted materials than it is with patents.  Often the resources employed to create something subject to copyright are resource the university would supply in any case — a library, computers in faculty offices, art supplies for artists who both create and teach, a video camera in a dance studio, etc.  Resources used in equipping labs to pursue patentable inventions, on the other hand, are often extremely specialized and sometimes costs millions of dollars.

This does not mean that the copyrighted productions of a faculty are less important than those subject to patents; their very ubiquity testifies to how vital such works are to the tasks of teaching and research.  But the conditions of creation are so different that policies that conflate the two are seriously misguided.

One point I try to make whenever I discuss copyright ownership policies on university campuses is that such policies should distinguish between ownership of the underlying rights and uses that other parts of a scholarly community can be licensed to make.  For example, a university need not claim ownership over the design of an online course by a faculty member as long as it assures, by policy or by separate agreement, that it has a perpetual license to use that courseware.  Thus the faculty member’s academic freedom and reasonable expectation to own her own work is upheld, but the university does not have to worry about having to redesign the course if the faculty member leaves or to pay her twice for it.  The designer, of course, is also able to reuse her work at a new institution, so everyone’s needs can be met.  A careful policy on copyright ownership should be a kind of matrix that identifies types of works and groups of users who might have an interest in those various kinds of works.  Then the decision about ownership can be made at an appropriately granular level, and the use rights of those with recognized interests in each category can also be assured.

Copyright ownership policies are important, and becoming more so everyday.  Campuses that do not have such policies need to remedy that situation sooner rather than later, and before conflicts develop that will leave the decision to courts applying the default rules of the copyright law.  The policy proposed by the University of Louisiana System is a poor model and an apparently ill-considered stab at such a policy.  But if the controversy it has generated causes faculty in Louisiana and elsewhere to think hard about these issues, perhaps some good will result.

This conversation came to mind as I read two documents released by the Copyright Office in the past couple of weeks.  The constituency of the Copyright Office, presumably, is the public as a whole, and their role ought to be more neutral than mine, seeking the balance between protection and use that has always been at the core of copyright law.  In these two documents, however, the tendency to think that, as the Copyright Office, advocacy for anything that increases copyright’s strength and reach is the proper role, shows through.  The needs and voices of owners in the legacy content industries seem to get extra weight, while the needs of users, who are more diffuse and do not have as many dedicated lobbyists, get less attention.

In its brief report on “Priorities and Special Projects of the United States Copyright Office” the Office details the studies, legislation and administrative projects that it intends to work on for the next two years.  In its legislative priorities, the first three listed are “Rogue Websites,” “Illegal Streaming,” and “Public Performance Right in Sound Recordings.”  Each of these priorities is an endorsement of particular legislative action by Congress — the first clearly endorses the bill alternately called PROTECTS IP or SOPA or ePARISITES.  Indeed, each of these priorities seems to be dictated by the current lobbying activities of the entertainment industry, and each is a very much non-neutral endorsement of greater scope for and stronger enforcement of copyright protections.  There is little sign that the voices arguing that copyright already reaches too far and is over-enforced are being heard.

Other priorities do seem more neutral.  The Copyright Office wants to “continue to provide analysis and support to Congress” on orphan works, and it repeats its intention of making legislative recommendations based on the report of the Section 108 Study Group, which addressed the specific exceptions to copyright for libraries.

This last priority created a rather humorous situation for me last week when I was contacted by a member of the library press seeking information about this “new” report on section 108.  In fact, the report was issued in 2008.  Nothing has come of it in three and a half years, and, even if all of its recommendations were suddenly adopted, it would do little to improve the situation for libraries because the Study Group was unable to find agreement on the most pressing issues.  The Copyright Office does not mention the more comprehensive proposal on library exceptions made by IFLA to the World Intellectual Property Organization.

My real interest focused on the Copyright Office’s desire to do something about orphan works.  In addition to the legislative priority listed, the report promised a study document on mass digitization, which would naturally have to address orphan works, and that document was issued a few days ago.  Here we get a glimpse of how the Copyright Office plans to address the difficulties posed by orphan works.

The report makes the CO’s preferred approach very clear — “As a practical matter, the issue of orphan works cannot reasonably be divorced from the issue of licensing.”  This is an interesting statement, since the last proposal to resolve the issue that the CO nearly got Congress to adopt a few years ago did not rely on licensing, but addressed the issue by reducing the potential damages for using an orphan work after a reasonably diligent attempt to find a rights holder.  There clearly are other approaches, but the appetite  of industry lobbyists has, since the Google Books case, been whetted by the possibility of profiting from other people’s (orphaned) works, and the CO has been swept up in the licensing fever.

The report gives a detailed and very helpful discussion of the various types of licenses that could be used, but it never addresses the question that seems most pressing if orphan works are to be licensed — who is going to get paid?  If works are genuinely orphaned, there is no rights holder to pay, so orphan works licensing proposals must decide who is going to sell the licenses and where the money is to go.  Other countries have adopted licensing schemes, and often the licensing is done by the government; in the U.S., however, I think we have to assume that private collective rights organizations (who are given prominent mention in the report) would collect the money and, perhaps after some period of time, keep it.

This report is about more than orphan works, of course; it addresses the broad issue of legal concerns in mass digitization.  I was interested to see how fair use was treated, both in that broader context and in relation to orphan works.  I was disappointed in both regards.

In the general discussion of mass digitization, fair use is pretty much summarily dismissed by the Copyright Office.  It begins with the assertion that “the large scale scanning and dissemination of entire books is difficult to square with fair use,” which seems to beg the question.  The rest of the section reads like a legal brief against Google’s position on fair use in the book scanning case.  Nowhere does the report consider what difference it might make for a fair use claim if the project were wholly non-commercial, nor do they consider that fair use might be part of an overall project strategy that included other approaches, such as selected permission-seeking.  The report treats fair use as an all-or-nothing approach and dismisses it as unworkable without the nuanced consideration it demands.

More troubling is the fact that, having dismissed fair use in the broader context of mass digitization, the Copyright Office never discusses it in the more narrow field of orphan works.  With orphans, of course, fair use seems like a stronger argument, since there is no market that can be harmed by the use, especially if it is itself non-commercial.  But it seems clear that the CO is committed to creating such a market by pushing a licensing scheme, and is not willing to discuss any option that might undermine its predetermined conclusion.

On the legislative front, the PROTECT IP act has been introduced in the Senate for a while now.  It is problematic even in its Senate form, since it would allow private actions to attack web domains based only on accusations of IP piracy, without the usual due process that is necessary to sue an alleged infringer.  But the act got worse, and stranger, when it was introduced into the House of Representative.  A provision was added that would role back the “safe harbor” provision for ISPs from the Digital Millennium Copyright Act and impose an affirmative obligation for web hosting services to police content uploaded by users.  This is in keeping, I am afraid, with the overall effort to force others — the ISPs and the government — to foot the bill for enforcing copyrights owned by the legacy content industries.  Discussions of this bill are all over the Internet; a representative one can be found here.

The argument that we should change the DMCA is becoming very common.  The content industries do not like the bargain they made a decade ago, and seem increasingly to want to shut down the most productive aspects of the internet in order to preserve their traditional business models.  An excellent argument for why we should not let this happen can be found in this discussion of copyright, the Internet and the First Amendment from Thomas Jefferson scholar David Post.

The real silliness, however, comes in the decision to rename the bill in the House, from PROTECT IP to ePARASITES.  I sometimes believe there is a congressional office for acronyms, staffed by some very silly people. When I first heard this new acronym, I thought it was a parody.  Although I now know that the “parasites” referred to are websites that facilitate unauthorized sharing, I initial concluded that it was a joke referring precisely to those industries supporting PROTECT IP who want the taxpaying public to bear all the costs for their failures to innovate.

Another round of silliness was created this week by the filing of a Second Amended Complaint in the lawsuit between the trade group AIME and UCLA over digital streamed video.  The judge dismissed the First Amended Complaint about a month ago but gave the plaintiffs (AIME and AVP Video) permission to refile.  This they have now done, but going through the (long) complaint, I fail to see how they have really addressed many of the judge’s reasons behind the dismissal.

A major reason behind the dismissal was lack of standing for AIME and sovereign immunity protections for the defendants.  I noted at the time that the lawsuit would really need different plaintiffs and different defendants to go forward.  Clearly AIME did not agree, since the new complaint names exactly the same defendants, simply with “and individual” added each time the previous document said they were sued in their official capacities.  This new document does not remove the claims against them in their official capacities, even though the judge already dismissed those claims, and it does not add any facts that I could see that would justify a suit against the individuals.  So the refiling really just seems to double down on the failings of the first complaint.

Also, AIME tried to rescue its “associational standing” but pointing to “injury in fact” to the association itself.  Such injury, incredibly, seems to be primarily the damage done to AIME by its relentless pursuit of this lawsuit, which it brought in the first place.  Staff time has been consumed, they say, and the reputation of the association harmed.  New members are reluctant to join.  Why any of this confers standing on AIME against UCLA is beyond me; members may not be joining because they do not want association dues spent tilting at windmills.  Also, the judge already rejected the argument that “diversion of resource” for the lawsuit was enough to establish the required showing of injury.  It is not clear to me that simply adding more detail can rescue this argument.

The new complaint again asserts that sovereign immunity was waived by UCLA when it signed license agreements with a jurisdictional clause, and by its own policy of obeying federal copyright law.  Both of these arguments were already rejected by the judge, so reasserting them seems more like a criticism of the previous decision than a new argument.

On the substantive arguments, I also can see very little that has been added that should change the outcome here.  The license between AVP and UCLA is reasserted, with the same language that caused the judge to read it in a way that undermined the first set of copyright claims.  One addition is the claim that the UCLA system is “open” (which the license does not allow) because it has a guest feature that can be turned on, but there is no assertion that it ever has been turned on in fact.  Another addition are the state law claims for tortious interference with a contract and prospective interference with a business advantage.  Like the previous state law claims, this seems entirely founded on the copyright infringement claim, so I see no reason these would not be preempted by the resolution of the copyright issue, as the previous claims were.

In both these instances, I think we see the emotion of righteous indignation overcoming reason.  The very thing, it seems, that makes this the silly season.

The two major reasons for the decision were sovereign immunity — the doctrine that state entities can seldom be sued in federal court — and lack of standing.  AIME tried to argue that UCLA had waived its sovereign immunity when it signed a contract with AIME, but the judge rejected that argument as too broad.  So a major part of the decision applies only to state entities; it does not translate to private universities.

As for standing, AIME had a little bit of the “Righthaven” problem; they simply did not own the copyrights that were allegedly infringed, so they were not the proper plaintiffs to bring the case.  AIME wanted to claim what is called “associational” standing as a group that represents individual copyright holders, but the judge rejected that idea; she held that “individual copyright owners’ participation is necessary” in order to assert copyright infringement.  It has never been entirely clear why the lawsuit was brought the way it was, and it is a relief, from the point of view of legal consistency, that this attempt to assert associational standing has failed.  With Righthaven and a few other groups trying to create a business model based on copyright trolling, the failure of this claim for standing represents another welcome barrier to that activity.

Not, I hasten to add, that AIME is in any sense a copyright troll.  The lawsuit was, in my opinion, inept, but it was clearly motivated by zeal and a sense of righteous indignation rather than baser motives.  Calmer judgment simply got overwhelmed.

On the copyright issue, which is where I was most anxious to see the reasoning, everything pretty much turned on language in the AIME license that granted public performance rights to the licensees.  Given that language, the case would seem to have been doomed from the start.  But as a result, UCLA did not have to make the case that the streaming, as a potentially public performance, was justified by one of the specific educational exceptions in section 110 of the Copyright Act.  That argument may yet be plausible, but it was not decided in this case.

What solace the higher education market can take from this case is in a few lines in which the judge seems to accept without discussion two assertions — that streaming is not a “distribution” such as to infringe the exclusive right to authorize distribution, and that copying incidental to a licensed right (the right of public performance) was fair use.  These points were not, as I say, discussed or unpacked, just accepted as part of a general dismissal of the copyright infringement claim for “failure to state a claim upon which relief can be granted.”  Thus this ruling does not offer the higher ed community a slam-dunk fair use victory, it merely sharpens a couple of the arrows in the quiver of that argument.

It is interesting to note that the copyright claims, along with most of the others, were dismissed “without prejudice.”  This means that AIME could refile them, and the judge gave AIME two weeks to do so if it wants.  The problem, however, is that all claims against the Regents and against the individual defendants in their official capacity were dismissed with prejudice.  So AIME could file the same claims again, but not against these defendants and not until it solved the standing issue.  A claim against the individuals as individuals would still be possible, but it is doubtful it would have the effect AIME wants; instead, it would look like the act of a desperate bully who does not know when to retire from the field.

Whatever happens next in this case, if anything does, what the dismissal without prejudice should tell the rest of us is that the issue of most significance to higher education — whether or not streamed video for a course-related audience is fair use — has not been brought to a final judgment.

The statement is presented by the Association of Scientific, Technical and Medical Publishers, who have been carrying on a quiet campaign of intimidation regarding ILL, especially ILL between countries, for some time now.  The statement of principles seems to have been prompted by a series of documents issued by the Association of Research Libraries that defend current ILL practices (full disclosure — I am one of the authors of a portion of this report).  In response, the STM publishers propose a set of rules that would gut section 108, which authorizes ILL, and would once again channel more money to publishers without supporting the creation any new content.

The principles that the STM publishers propose would have several novel effects.  First, they would forbid ILL across national borders without specific permission (paid, of course) from the publisher.  Second, they would make digital delivery entirely the province of the publishers (for a fee, undoubtedly).  Libraries would not be able to e-mail a journal article to a patron, even though nothing in the current law forbids such a practice.  Third, it would impose a vague standard of “due diligence” — language not found in the law — on all document delivery for “private, non-commercial use.”  Presumably this is the thin end of a wedge to attack all private research use for which permission fees are not paid.  It is important to understand that such a standard would give the United States the most restrictive copyright law in the world, and it would do so without the intervention of Congress.

The only document delivery which the STM publish want to allow — and even this would seem to be subject to their new due diligence standard — is printed copies which patrons would be required to physically retrieve from the library.

Distance education students would be out of luck under these proposed principles, as would those who were trying to write doctoral dissertations while working in areas where a research library is not at hand.  Once upon a time I was such a doctoral student, and I can testify that such a situation is untenable.  But the needs of higher education simply are not the concern for these publishers; they want more money out of us, and they want it every time a scholarly work is used in any way.  Never mind that our faculty members are the authors of these works; once the copyright is transferred to the publishers they see that as a resource they can exploit to the maximum regardless of the harmful effects that exploitation has on the very enterprise that supplies them with content.

Increasingly, this seems to be a war for survival.  I understand that traditional publishers are getting more and more desperate as the digital revolution proceeds and they continue to dither about how to address it.  But academic faculty members are the source of almost all the content these publishers publish, so this behavior is an extreme example of biting the hand that feeds them.  It is even more stupid, in my opinion, than the strategy of recording industry who is suing its own customers, because these publishers are attacking a group that is both their customers and those who supply them with a product in the first place.

As these attacks on higher education continue to escalate, it becomes increasingly clear that the economic viability of higher education, already in doubt by some, depends on rebelling against these traditional publishing practices.  In the digital age it is simply not necessary to rely on these publishers, and they seem to be doing all they can to make it impossible as well.  I wish I did not feel that I have to hope this apparently self-destructive behavior proves to be exactly that.  But it must serve as wake-up call to academic authors that traditional practices are now being abused in a way that would make much academic practice impossible.  Open access alternatives seem more and more to be not just a nice alternative, but the only path scholarly communications has left to survival.

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.

The alleged lack of jurisdiction is based on a claim of sovereign immunity, the idea that the federal courts cannot hear most cases against a state entity as part of the Constitutional scheme called, confusingly, “federalism.”  That argument is the bulk of the motion.  But there is another issue, one of several involving the alleged vacuity of the claims against UCLA, that caught my attention.

As I noted in my earlier post, the complaint by AIME and Ambrose Video asserts that at least some of the videos at issue are under license and that digitizing and streaming those videos is a breach of that contractual agreement.  I questioned earlier whether the license being claimed was, or should be, cognizable.  But UCLA is making a different claim in its motion to dismiss, that the state breach of contract claim based on a license is preempted by federal law.

Section 301 of the Copyright Act says that state laws that create ” legal or equitable rights that are equivalent” to the exclusive rights in copyright are preempted.  Thus state or common law copyrights are mostly superseded by the 1976 federal Act.  But two questions have long remained: whether or not this meant that state enforcement of contracts governing intellectual property could be preempted, and what rights are “equivalent” to copyrights.

We routinely assume that “contracts trump copyright;” libraries are told that all the time regarding the databases they license, and they often pass the message on to users.  It is generally correct. In one of the most cited cases on this point, ProCD v. Zeidenberg, Judge Easterbrook of the 6th Circuit held that a contract creates rights only between the specific parties and thus those rights are not “exclusive” and so not preempted.  But the question remains somewhat unsettled, and UCLA is exploiting an apparent loophole in the general rule that we have mostly taken for granted.

In an 8th Circuit case that the Supreme Court left standing, National Car Rental Systems v. Computer Associates, preemption was denied, but the denial was based on interesting reasoning — that the contract covered the use of the intellectual property, and that use was simply not one of the exclusive copyrights.  Professor Nimmer, perhaps the foremost authority on U.S. copyright, picks up this reasoning and suggests that a contract that attempts  to “serve as a subterfuge to control nothing other than the reproduction, adaptation, public distribution, etc.” of copyrighted works should be preempted.  So a contract controlling how licensed property could be used — who could access it, for example — would be enforceable under state contract law, but one that dealt with reproduction, distribution and the other exclusive rights would not be.

UCLA applies this reasoning to say that the alleged video licenses should be preempted insofar as they would govern whether or not making a copy for digital distribution is allowed, since this would be equivalent to the rights under copyright.  The upshot of this argument would be that schools could not license away their right to make fair use of content they license, since fair use is a limitation on the exclusive rights and thus part of what would be preempted in any contract action.  Fair use would have to be decided on its own terms, spelled out in section 107 of the Copyright Act, and could not be “ruled out of court” by a contract.

I have long maintained that non-negotiable contracts (like shrink wrap licenses) should be preempted by federal copyright law, so that one does not give up rights like fair use without a chance to discuss and defend them.  If UCLA argument is successful, it would suggest a broader rule, that contracts that abrogate fair use and other aspects of copyrights exclusive rights scheme would always be preempted.  I have no idea if this will fly in the District Court; the case might get dismissed on sovereign immunity grounds so that the issue would not even be addressed.  And even if UCLA prevailed on this point, an appeal would be likely.  So I am not suggesting that we change our long-standing belief that contracts trump copyright in most case, just that we watch this issue carefully and consider its full ramifications.