Category Archives: Copyright in the Classroom

Streaming video case dismissed

Yesterday a judge in Los Angeles dismissed the copyright infringement lawsuit brought by AIME, the Association for Information Media and Equipment, against UCLA.  The lawsuit had alleged that UCLA was infringing copyright by ripping DVDs to create a digital stream, which was then made available through a closed course management system to students in a particular class.  There are several technical issues that dominate the decision, but there is a little bit of good news, hardly definitive, for the fair use claim that was being made by UCLA.

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.

A second front

For obvious reasons there has been a lot of attention paid to the Georgia State copyright infringement case recently.  In that litigation three academic publishers are asking a judge to fiercely restrict  academic fair use in favor of a pay-per-use system that, in my opinion, disregards the expressed intent of Congress in the 1976 Copyright Act and  is foreign to the purposes of that law.  The trial was completed yesterday, and a decision from the judge can be expected over the summer.  But in our justifiable anxiety about that case, we should not miss the fact that is is only one part of an overall strategy to undermine the educational exceptions to copyright; yesterday the publishing community opened a second front in their attack on education by issuing a statement of principles designed to hobble inter-library loan.

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.

A nightmare scenario for higher education

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.

Contract preemption: an issue to watch

Back in December I wrote about the lawsuit that has finally been filed against UCLA claiming that the policy of streaming digitized view for course-related viewing is copyright infringement.  Late in January UCLA responded with a motion asking the court to dismiss the lawsuit for lack of subject matter jurisdiction and failure to state a claim.

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.

The other shoe drops

On Tuesday, Dec. 7, the educational trade group AIME and one of its members, Ambrose Video, finally filed the long- anticipated lawsuit against UCLA alleging that UCLA’s practice of streaming digitized video through its course management system to students registered for a specific class, was copyright infringement.

When several publishers filed suit against Georgia State University on April 15, 2008, I took note of the date because it seemed the publishers were trying to enforce a new tax on higher education.  Now the assault on academic fair use is continuing, but my initial temptation to draw a chronological analogy with the attack on Pearl Harbor – “a day that will live in infamy” – was easy to resist.  Not only would such an analogy be disrespectful of the terrible tragedy that took place in 1941, it would also give too much importance to the very strange document that was filed Tuesday in the Central District of California.

The complaint is unusual in several ways.  Those who try to read it off the AIME website will find, for example, that the PDF is riddled with problems in the scanning (one hopes) that make it very difficult to decipher.  Also, it is curious that the only named distributor of educational videos is Ambrose.  The complaint makes the claim that many others are also being injured, but it does not name them.  Instead it inserts a strange defense of the claim that AIME itself has standing without the presence of more than one of its members.  This is very different than with the Georgia State Case, where the Association of American Publishers led the search for a defendant but then dropped out and let the actual rights holders proceed.  Rumor had it last year that Ambrose, whose CEO is also a leader of AIME, was very keen to sue but was having difficulty convincing his colleagues in the group that that was a good idea.  The structure of this lawsuit seems to add credence to that rumor.

Another legal oddity is the decision to sue UCLA for damages as well as injunctive relief, even though the complaint acknowledges that UCLA is “an arm of the State of California.”  It would seem that sovereign immunity will be an issue, and AIME has not taken the steps that the GSU plaintiffs did to avoid the  potential for dismissal on these grounds.

Much of the argument, of course, centers around fair use.  Here too it was surprising to see how the complaint proceeds.  It actually does not address the four fair use factors, but makes three arguments about why UCLA cannot claim that defense.  First, it says that the videos are all licensed in a way that precludes fair use.  Second, it asserts that it offers a licensed streaming service, which presumably goes to the market harm factor in a fair use analysis.  Third, it asserts that UCLA is not using “reasonable and limited portions” of the videos.  Again, the point here is to argue one of the fair use factors – amount and substantiality – but the language actually comes from the requirements of section 110(2) of the copyright act, not from fair use (section 107).

This last point is interesting because the complaint tries to refute any argument that 110(1) and/or 110(2) might apply to UCLA’s practice.  It does not acknowledge the possibility, which I hope UCLA will argue, that even when those provisions do not fully apply, attention to the policy behind them and the restrictions place upon them strengthens the case for fair use.  For example, if the impact of course-specific streaming is no different than employing 110(1) – the face to face teaching exception — it argues that there is a Congressional policy that refutes a claim for economic harm. When the complaint itself confuses the language between these exceptions, it points directly toward that possibility.

Licensing, however, is the heart of this complaint, in two ways.

First, Ambrose argues that its licensed streamed service makes a claim to fair use inappropriate.  The entire Ambrose catalog is, oddly, attached as an exhibit to the complaint, but only a “sample” of the streamed offerings appears.  An examination of the Ambrose website shows that not all of its offerings are available for streaming, but it is hard to tell what the percentages are.  So the question arises, how much of the content must be available for licensed streaming before a fair use argument is ruled out?  That question would, I think, persist even if a court accepted the claim, by no means obvious, that a licensing market does count to reduce the field for fair use.  That latter claim is quite circular and courts have split over its validity.

Second, Ambrose makes the more basic claim that “many” of its products are licensed in a way that entirely precludes fair use, even when  UCLA (and the rest of us) have bought a physical DVD.  The complaint says that, if the purchase orders for these DVDs are “scrutinized,” licensing terms will be found.  That claim made me think about what the Uniform Commercial Code (article 2) calls “the battle of the forms,” where parties to a sale of goods disagree as to what terms apply.  Even if the terms found on the purchase orders (or some of them) are held to be valid in some ways (and I think they might be under the UCC) the question still remains as to whether these one-sided terms are adequate to take the use of the DVDs completely out of the realm of federal copyright law.  Academic libraries should watch this issue closely, since it seems likely that similar attempts to use purchase order terms of use to abrogate the right of first sale, upon which libraries depend so heavily, will grow.

One finally oddity, from the perspective of academic librarians, should be noted.  The Washington lawyer hired by AIME and Ambrose to pursue this case, Arnold Lutzker, is also scheduled to teach an online class on “Copyright, Photos, Video, Art & Multimedia” for the Center for Intellectual Property at the University of Maryland University College in 2011.  This coincidence is a reminder that librarians need to look carefully at the educational opportunities they select and consider whether their common tendency to be excessively nervous about fair use might be reinforced when it should, at least in my opinion, be countered by more in-depth knowledge.  We know how to recognize a bias when the Copyright Clearance Center offers to teach us about copyright; we need to be aware that other opportunities may also come with an agenda.

This is obviously a case we will need to watch as it progresses.  These comments are based only on the complaint.  UCLA will file an answer that will help clarify the issues and, one hopes, AIME and Ambrose will clarify many of the points that are left unclear by this strange initial document.

A glimpse into our future?

Access Copyright is the Canadian equivalent of the U.S Copyright Clearance Center.  Like the CCC, which is helping to finance litigation against Georgia State University designed to force US universities to pay more and higher licensing fees for course materials, Access Copyright is also on a quest for ever greater income.

I and others have predicted for some time that a victory in this copyright infringement lawsuit would result in fewer educational options for our students, not more money flowing from university budgets into the coffers of the CCC. Now we have a Canadian parallel that seems to confirm those fears.

The situation for reserve materials in Canadian universities is already far worse than it is in the US.  A Canadian judge has ruled that putting required course materials on physical reserve in a library abets copyright infringement (when students make personal copies, presumably).  Based on this insane ruling, Canadian schools have been paying  $3.38 per student per year for physical reserves, along with .10 per page for course packs, to Access Copyright.  Now Access Copyright wants to change the fee structure and simply collect $45 per student per year for both physical reserves and course packs.

The upshot of this change, of course, would be a huge cost increase for universities and much higher revenues for Access Copyright.  And just as predicted, universities have started to opt for reduced student access in order to avoid a drastic drain on their budgets.  The University of Alberta has announced that it will no longer purchased the vastly more expensive license from Access Copyright and will, instead, simply stop providing reserve readings and course packs for students.  Students who cannot afford to purchase all the required readings will, it seems, be out of luck.

Who are the winners in this situation, I wonder?  Certainly not the students, who will have less access to course materials and higher costs for their education.  The university is obviously a loser too, since its basic mission is impeded.  And while Access Copyright will get richer, it is not at all clear that authors will benefit from the increased fees either.  Most academic authors – who are usually the ones who write textbooks – do not depend on that small additional income they receive from licensing fees after the large cut is taken by the rights organization.  In any case, often the author never sees any of that money; I have documented several times the situations in which the CCC collects fees for works whose authors it cannot identify. Those are cases where no incentive at all is created, only income for a bloated bureaucracy that feeds on fees that seem to have no rational justification.

When we compare the Canadian situation to the US it is clear that, in spite of some major differences in the law, we may be looking at our own future.  Physical reserves are not the problem in the US, since they are clearly covered by our first sale doctrine.  But fees for course packs and electronic reserves are climbing all the time, to unsustainable levels.  The Canadian system at least has the advantage of a predictable fee structure.  As US librarians know, we have no such predictability in our licensing budgets; the fees are inconsistent and capricious.  If we are to avoid a similar situation, in which professors are forced to adopt a more cramped and costly pedagogy, we need our courts to recognize that the current system is leading to a system that serves no public interest at all and is injurious to the educational system we have long been so proud of.

Going forward with Georgia State lawsuit

Judge Orinda Evans of the Federal District Court in Atlanta issued her ruling yesterday on the cross motions for summary judgment in the copyright infringement lawsuit brought by three publishers against Georgia State University over course readings provided to students through e-reserves and the campus course management system.  The text of her decision is here.

When a party moves for summary judgment, the hope, of course, is to avoid trial altogether and win your case outright on the basis of the motions and evidence submitted.  I had already said that I thought neither side would succeed at that level, and I was right.  But I have to admit to being surprised at how favorable the ruling issued yesterday is to Georgia State; even though the Judge clearly expects to go to trial, there is a lot in her ruling to give hope and comfort to the academic community.

For those who are keeping score, the Judge has granted the defense motion for summary judgment on two of the three claims — direct and vicarious infringement — and denied it in regard to the third claim, which is contributory infringement.  The plaintiff’s motion for summary judgment has been denied in its entirety.  The net result is that the case will go forward on the single issue of contributory infringement.

There are lots of complicated legal issues at work in the judges order.  Many have to do with the specific way in which this case is structured to deal with the issue of sovereign immunity and the particular things that have to be proved to avoid dismissal on those grounds.  But putting all of that aside for a moment, there are three points that I think are very significant and indicate how the rest of the academic community should regard this case.

First, in her discussion of the type of “indirect” copyright infringement call vicarious infringement, Judge Evans includes a substantial discussion of the economics that underlie providing course materials to students.  She acknowledges statements from several faculty depositions that they would not ask students to buy the books excerpted in e-reserves if that option were not available and also that they would not use many of the readings if a licensing fee were necessary.  This testimony seems to confirm the fear that a ruling against fair use would dramatically limit the course materials available to students; the upshot seems to be that a ruling against fair use would have significant negative social consequences and little real benefit for the plaintiffs.  The fact that Judge Evans is engaging the issue on this pragmatic level bodes well for a decision about fair use that genuinely address the social value of the particular activity and does not simply apply a mechanical analysis.

Second, the judge seems to indicate that the plaintiff publishers have a pretty narrow window for proving infringement.  They may not argue either direct or vicarious infringement, but have to focus their claims on contributory infringement.  They cannot argue that contributory infringement is shown by the mere provision of systems that may be used for infringing activities; here the Judge is following the Supreme Court precedent that says that a technology does not show “culpable intent” if it is “capable of significant non-infringing uses.”  Since e-reserves and course management systems clearly are capable of such uses, the Judge declines to hold that merely making those systems available renders GSU liable for contributing to copyright infringement.  So the plaintiffs will have to prove “ongoing and continuous misuse of the fair use” by producing evidence of “a sufficient number of instances of infringement.”  The defendants — Georgia State — will then have the burden of proving fair use as to each alleged infringement.  It is worth noting that this standard of “ongoing and continuous” infringement is a specific requirement of the exception to sovereign immunity on which the plaintiff’s rely.

Finally, and this is what really caught my attention, is the ruling that the Georgia State copyright policy, which was adopted in 2009, after the case began, “on its face does not demonstrate an intent by defendants to encourage copyright infringement; in fact, it appears to be a positive step to stop copyright infringement.”  Since the policy looks quite a bit like those used on many other campuses, this is good news.  The case regarding contributory infringement will go forward, the Judge says, on the issue of whether the policy is implemented in a way that encourages improper application of fair use.  This emphasis on the local practices rather than the policy itself will certainly make it easier for other campuses to learn from an eventual ruling and, if necessary, adjust their own implementations to meet whatever standards arise, but it decreases the likelihood that large and dramatic changes will be needed.

It is possible, of course, that this ruling on the summary judgment motions will inspire the parties, especially on the publishers’ side, to seek a settlement.  I have a hard time envisioning what the grounds for such a settlement would look like, but motivated parties can often find a way forward.  If, however, a trial and verdict is in the future, this order increases my confidence that the focus will be on a realistic and pragmatic evaluation of activities that, in my opinion, ought to be considered fair use.  Even if the court ultimately agrees with me, we will have a lot of work to do to make sure that we understand the reasoning behind such a verdict and are able to apply it to our own institutional situations.  And, of course, an appeal would probably be inevitable.  But at this early stage (and it is early, even after two and a half years) it is better to have events trending in your favor than otherwise.

Reading tea leaves

In the ongoing copyright litigation between Georgia State University and Cambridge, Oxford and Sage publishers, we are at a stage where everyone is waiting for Judge Orinda Evans to rule on the cross motions for summary judgment.  In the interim before her ruling, it is fascinating to look at the orders she has issued directing the parties to give her information.  The orders may tell us a bit about what the Judge is thinking, although such divination is always fraught with uncertainty.

In here first such order, back in June, Judge Evans directed the parties to file with the court a complete and certified copy of the new Georgia State copyright policy.  This development presumably indicated that the Judge was giving full consideration to the fair use argument and also that she was determined to stick to the analysis of the current policy.  Those who purport to speak for the plaintiffs in the case sometimes seem to want to continue to make the case about practices at GSU prior to the adoption of the new policy, in spite of Judge Evan’s previous rulings.  This order in June indicates, I hope, that the Judge is keeping her eye on the ball.

Last week is when the orders got really interesting, in my opinion.  First the Judge order the plaintiffs to provide her with a list of all of the items assigned for each class in the  three 2009 semesters that are alleged to be infringing.  Again, she seems determined to look only at practices that occurred after the new policy was adopted in February of 2008, and is looking careful at what those practices really are.  Whether or not this is a good thing for defendants or for plaintiffs, it speaks well of the determination of the Judge to keep the cases within the bounds she has set for it and not be swayed by outside rhetoric.

If we are looking for good news for the defendants in this case, however, I think it is to be found in the next order, filed last Thursday.  There the Judge orders the plaintiffs to provide her with a list of the retail cost of each work that was allegedly infringed during the 2009 semesters and the cost of licensing the excerpts that were used.  It is my opinion that the deeper the Judge looks at the economics of scholarly publishing and university teaching the clearer the need for fair use in this context will be.  To be fair, one could interpret this order a different way, and see it as the Judge evaluating the harm that has been done to publishers by Georgia State’s alleged infringement.  But this interpretation seems less likely when one looks at the actual language the Judge uses in her order.  She clarifies what she wants by asking to be shown “what a student would have to pay to purchase the entire work.”  Regarding licensing fees, she puts the question in terms of “what each instructor would have to pay” and then adds a request for the cost per student of these fees.

My strong hope is that Judge Evans, in these orders, is evincing a desire to fully understand the potential costs of of the ruling she is being asked by plaintiffs to make.  Her decision has the potential to dramatically raise the cost of higher education for students and/or reduce the options available to instructors in the state.  I hope that when she sees the high cost of books from these presses and realizes that permission fees are pegged to cost as much or more than retail sales, she will understand that the fundamental policy choice she must make is a trade-off between higher revenues for publishers and quality, accessible education for Georgians.

Dueling Myths

It is a curious coincidence that in the past few weeks I have become aware of two different — very different indeed — documents which purport to refute common copyright myths.  The differences are easily understandable, given the two sources of the respective documents, and each reflects, to some degree, the prejudices natural to its authorship. It is, I hope, an interesting exercise to look at them side-by-side and see if and where each goes astray.

For an odd mixture of dead-on accuracy and exaggeration in one’s own economic interest, it is hard to beat this list of Ten Common Copyright Myths from the UK Copyright Service.  The Copyright Service is a collective registration services that clearly depends for its income on putting copyright holders in fear of infringement and significant financial losses; this is evidenced by their use of the frequently discredited figures regarding the alleged cost of IP “piracy” worldwide.  The Copyright Service makes money when rights holders are convinced that they need the extra layer of protection that registration with the service (a private equivalent of the registration available in the US from the Library of Congress’s Copyright Office) provides.

The accurate part of the Copyright Service’s list of myths is the first half; myths 1-5 are accurate and correctly described.  They represent misunderstandings that are frequently heard, although the myth about “poor man’s copyright” is probably not so common as to deserve being treated as copyright myth number 3, but it is a direct threat to the Service’s own business model.

Where things go wrong with this document is in myths 6 through 9.  The statement of each myth does, in fact, recite an inaccurate statement, but the debunking of these myths really overstates the scope of protection and the need for permission.  Indeed, the claim that one should just always seek permission simply because it is not true that using 10% is always fair use merely substitutes one myth for another.  Fair use and fair dealing are necessary and inescapable; ordinary citizens could not go through their days without committing infringement were it not for these provisions.  They cannot be simply dismissed as unreliable, especially because the transaction costs of “always” seeking permission would be prohibitive and would swamp an organization like the UK Copyright Service.

In addition to this re-mythologizing that occurs in myth 7, myths 8 & 9 represent an exaggeration of the risk involved in using copyright material in some cases.  Myth 9, attempting to assert how easy it is to prove copyright infringement, completely ignores the existence of numerous defenses available to users.  Such defenses are an indispensable part of the copyright law in the US and the UK; they preserve the balance of the law and protect important social values like creativity and free speech.

On the other side of the scales is this article on Urban Copyright Legends from Brandon Butler of the Association of Research Libraries.  Butler’s approach is obviously more from the side of users than of rights holders, and the difference of perspective makes reading the two similarly titled documents an interesting experience.  Most importantly, Butler offers a much more balanced and realistic perspective on fair use than does the Copyright Service.

In his discussion of “fair use legends” Butler does a nice job of presenting fair use as what it really is, a framework for a responsible analysis of risk in any given situation.  Fair use is never a certainty, but it is not a total crap-shoot either.  Butler shows that the burden of proving fair use is a relative matter; in some situations, especially non-profit educational settings, it is a relatively easy and secure analysis that we can and do rely on everyday.  In other cases the risk may be greater, and the value of the activity must be weight against the cost of permission and the potential cost of litigation.  This is a calculation that every librarian and academic actually does all the time, and more familiarity with how it works is a major value to be gained from Butler’s article.

In the second part of his article, on legends associated with the performance exceptions in section 110 of the Copyright Act, Butler is on somewhat less secure ground.  His debunking of urban legends relies here on some distinctions that are not as well-established as we might like.  Relying on legislative history, for example, is always a tricky business.  That there has not been major litigation over the TEACH Act, for example, is a good thing, but it leaves us rather more uncertain about just where the lines can be drawn than Butler suggests.  Likewise, the line between those videos that are “primarily marketed for educational use” and those that are available for use under 110 is not really very clear and has never been subject to judicial interpretation.  Nevertheless, the examples Butler offers do support his point that over-interpreting this language can lead to needless self-restriction well beyond what even our over protective copyright law requires.

Reading the fine print

Yesterday’s announcement that the Library of Congress was designating new classes of works exempt from the anti-circumvention rules of the DMCA has generated lots of Internet buzz, especially about the exemption for those who “jailbreak” their cellular phones.  The major exemption for higher education, allowing circumvention by faculty for a range of defined educational purposes, has also gotten some press, some of it excellent and some of dubious accuracy.  In the latter category, unfortunately, is this piece from Inside Higher Education, which I will discuss below.

But first let’s look at the actual language of the exemption.  What follows is based on the detailed description of the six exemptions given in today’s Federal Register.

First, the exemption is to permit circumvention of technological protection measures — the breaking of digital locks — for certain classes of works and for defined purposes.  These rules do not change the definition of fair use; they merely specify a small group of purposes within the broader category of fair use for which circumvention is permitted.

Next, this exemption applies to lawfully made and acquired DVDs that are protected by Content Scrambling System (CSS).  This application is both broader and narrower than the previous rule.  It does not require that the DVD be part of a university’s library collection, much less the collection of a film or media studies library.  The DVD can come from anywhere as long as it is not pirated or stolen.  But it applies only to DVDs that use CSS; it does not, for example, apply to Blu-Ray discs.  So a faculty member can make a compilation of clips from her own DVD library, for example, unless she collects that library in some format other than traditional DVD.

The exemption applies to three specific activities for which circumvention is necessary.

First, it applies to educational uses by college and university faculty and by college and university students of film and media studies.  Notice that the category of faculty is all inclusive, but the category of students is limited.  The Library of Congress determined that not all students needed this exemption; presumably they were also aware of industry fears that students would carry the permission too far if the exemption were general.  Also, the application to educational uses does not include K-12 teachers, who were also determined not to need the ability to obtain high-quality clips.  Presumably they are still expected to point a digital camera at a TV screen if they want a clip from a motion picture.

The other activities to which the exemption applies are documentary film-making and non-commercial videos.  Presumably some of the limitations to the persons allowed to circumvent for educational purposes may be mitigated by these two defined activities.  A university student who is not studying film and media studies, for example, might still want to use a film clip in a class video project and could be permitted because it is a non-commercial video.

So once we are clear about what can be used, by whom and for what purposes, it remains to ask what exactly we can now do.  The answer is that we can circumvent technological protection measures in order to incorporate short portions of motion pictures into new works for the purpose of criticism and comment. Several phrases here call for explication.  First, circumvention is allowed for copying short portions, not entire films.  Second, this exemption applies only to motion pictures, not to other content, like video games, that may be available on DVD.  Third, the clip must be used to create a new work.  I was glad to see that the explanation of this phrase in the Federal Register is explicit that “new work” does include a compilation of film clips for teaching, as well as other videos in which a short clip may be subjected to criticism and comment.  Finally, that purpose of criticism and comment is a required aspect of the defined activity that is permitted.

The last requirement for this exemption is a reasonable belief that circumvention is necessary to accomplish the permitted purpose.  The announcement is very clear that if another method of obtaining the clip without circumvention is available and will yield a satisfactory result it should be used.

This seems like a lot of requirements, but I think that overall we have a pretty useful exemption here and one the application of which will not really be too difficult.  Once we understand the four italicized phrases above, it seems that we should be able to recognize permitted instances of circumvention when we see them.  Certainly this is easier to understand and apply than the exemption it replaced.  But when we look back at that item from Inside Higher Ed, it is easy to see how excessive enthusiasm can still lead to misunderstanding.

For one thing, the IHE piece does not acknowledge the limitation placed on students who can take advantage of this educational purpose exemption.  It may be, as I suggest above, that that limitation will be swallowed by the other permissions, but we should at least recognize the intent behind the rule.  More importantly, this exemption to the DMCA’s anti-circumvention rules really has nothing to do with the dispute between UCLA and AIME or with other projects to stream entire digital videos for teaching, in spite of what IHE suggests.  While such projects may or may not be justifiable, this exemption does nothing at all to change or define the boundaries of fair use; it merely carves out a portion of those uses, which the Registrar calls “classic fair use,” for which circumvention is now permitted.  There may be other uses that are fair, but this exemption neither determines that question nor authorizes circumvention for those purposes.

It is what it is, and no more, but what it is is good news for higher education.