Category Archives: Copyright in the Classroom

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  Thus state or common law copyrights are mostly superseded by the 1976 federal Act.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.

The new, improved DMCA

Last week I wrote, but had not yet posted, a comment about the proposed copyright reform in Brazil and the more nuanced approach they took to anti-circumvention rules that protect technological systems intended to prevent unauthorized access.  In the course of that discussion I again criticized the Library of Congress’ long delay in announcing new classes of exceptions to the US anti-circumvention provisions.  I expressed the hope that, after waiting so long, they would at least get it right.

They did.

Before I had a chance to publish my post, the new exceptions were released, albeit eight months late.  Also, an important appellate court opinion about the DMCA anti-circumvention rules was handed down.  So now I have three points to make about the DMCA and anti-circumvention rather than just one, and taken together they constitute my first ever optimistic writing about this subject.

First, the new DMCA exceptions announced today by the Library of Congress include the broader exception for higher education that many of us asked for during the rule-making proceedings.  Indeed, the language is broader than I dared hope, apparently allowing circumvention of DVDs for a broad array of purposes in higher education.  Certainly all professors can now circumvent for the purpose of compiling clips for teaching, as well as for incorporating clips into larger scholarly works.  Documentary film-making and non-commercial videos seem also to be able to circumvent for purposes of criticism and comment using short portions of a protected film.  Indeed, this exception comes close to allowing circumvention (of one type of media) for most fair uses, although it does not quite get us to that point.

The new exceptions also include a provision to allow circumvention of e-book technological protections when necessary to enable a read aloud or screen reader functions.  This exception also addresses a problem that higher education has long felt when accommodating students with a visual disability.

Second, this case out of the Fifth Circuit, involving software used to control “uninterruptable power supply” (UPS) machines, made a very clear statement that the DMCA’s protection of DRM systems “prohibit only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners…. Without showing a link between “access” and “protection” of copyrighted work, the DMCA anti-circumvention provision does not apply.”  The Court quotes another circuit for the proposition that the DMCA creates no additional rights other than what the copyright law already grants; it merely provides for a different form of protecting those rights. With this language we seem to move even further down the path toward saying that anti-circumvention is not prohibited when the purpose for which access is sought would be a fair use.

Which gets me to my third point, about the proposed copyright reform in Brazil. As I said in my earlier post:

“Brazil offers an international example of how to handle anti-circumvention the right way from the start, instead of creating a draconian rule and then forcing law-abiding users to beg for limited exceptions.  Brazil has introduced a balanced approach to anti-circumvention as part of its copyright reform proposal (available here, in Portuguese; see especially section 107).  As Canadian copyright law professor Michael Geist explains on his blog, this proposed reform imposes penalties for circumvention of legitimate technological controls on access, just as US law does.  But it also specifies that circumvention of such controls is permitted for access to public domain materials and for purposes that fall under Brazil’s ‘fair dealing’ exceptions; an obvious limitation that US law ignores.  What is more, the Brazilian proposal would impose penalties equivalent to those for unauthorized circumvention on those who would hinder circumvention for these legitimate purposes.”

Now, of course, we are much closer to the same kind of sensible approach then we were just a few days ago.  It is interesting to note that I mentioned in that earlier, never-published post, that the US Trade Representative would be upset at Brazil for not incorporating US-style DMCA rules.  But I have just seen this news about how the USTR is backing down about harsh anti-circumvention provisions even in  ACTA, the Anti-Counterfeiting Trade Agreement I have talked about before.  I believe I may hear the turning of a tide.

Transformation and teaching

On Wednesday the Duke Libraries’ Instruction and Outreach department held a retreat on the topic of “Digital Literacies.”  The excellent keynote speaker for the event was Ellysa Cahoy from Penn State University.  As part of the retreat, I spoke very briefly about copyright issues around the use of digital media.  My comments ended up being very different than what I originally planned, based on the things I heard from Ellysa and the Duke faculty who participated in a panel talking about the kinds of new media assignments they were using.  Ellysa has some kind words about the retreat in general, Duke’s superb instruction librarians, and my remarks in this blog post.  On that latter topic, I want to take a minute to clarify and expand on what I said, because I believe the message is quite important.

As Elyssa says, my fundamental message was that faculty who are using creative assignments involving new media, and the librarians who work with them, need to embrace the space given to them by fair use.  I hasten to add that I did not say that they should “not worry about using copyrighted material,” but I did encourage a degree of reflection about the nature of the use in question.  Events like the lawsuit against Georgia State over electronic reserves and the news coverage about the conflict between UCLA and AIME over streamed digital video have a tendency to make librarians very nervous about all uses of copyrighted works.  But all uses are not the same; our courts have been very receptive over the past three decades to uses that are perceived as “transformative.”

Transformative uses are, broadly speaking, uses of copyrighted works which create something new that has a different purpose than the original work involved.  Transformative works are often identified as those which do not create any kind of market competition with the original work.  Thus a parody of a 1950’s classic song by a 1980’s rap group is a transformative use of the original, and an historical work about the Grateful Dead makes a transformative use of original concert posters for Dead concerts when it uses them to illustrate a time line.  One does not buy a history book instead of attending a concert, nor does one buy 2 Live Crew’s music as a substitute for Roy Orbison’s (although a truly eclectic music fan might buy both).  In a fair use analysis, transformativeness strengthens the argument for fair use based on both the first fair use factor – the nature and purpose of the use – and the forth factor — the effect of the use on the markets for the original.

When students (or faculty) use media like film, music and video clips to create remixes, mash-ups and other kinds of commentaries, this is a strong example of fair use.  These uses are quite different than the largely iterative ones like scanning a book chapter for e-reserves or streaming a video through a course management system.  These may or may not also be fair use – that is a highly controversial issue – but they are very different from creative and transformative uses.  When I realized that the retreat was discussing such student assignments as using advertisement illustrations in “story board” essays about popular culture or re-mix film and music clips to create PSAs for local non-profits, I changed the focus of my remarks from warnings about iterative uses to encouragement of these transformative ones.  To my mind, these kinds of uses, where new scholarly and social valuable works are being created, are at the heart of the rationale for fair use in our law.  While copyright law often seems to inhibit pedagogy, this is one area in which the normative interpretation of fair use offers strong support for creative teaching.

One thing I wanted to stress about transformative use and student assignments was the way in which the fair use analysis actually encourages good scholarship.  It seems clear that the more integrated copyrighted material is into the basic argument or message of the new work, the stronger the argument for transformative fair use will be.  To take one example, music added to a student-made video simply to produce a more pleasing product is much less likely to be fair use than music which contributes to the overall theme of the work in a direct way.  Thus, a conversation with student and faculty creators about copyright and the importance of thinking through the fair use analysis is not only valuable in itself, it can actually support the creation of better, more coherent scholarly work.

Summary judgment in the GSU case?

Both sides in the Georgia State copyright infringement case – which challenges as infringement the use of excerpts from copyrighted content in the University’s electronic reserves and course management systems – have now filed motions for summary judgment, with supporting briefs and affidavits.  The actual motions and arguments in support can be found here, at filings 142 (plaintiffs) and 160 (defendants).

These filings, where each side asks the judge to decide the matter without trial on the basis of the documents filed with the court, are not unusual in copyright cases.  An increasing number of civil cases of all kinds are decided on summary judgment, so this is “worth a shot” for both sides.  And, of course, each side believes it has an argument that wins hands down.

The plaintiffs in the case – Cambridge University Press, Oxford University Press and Sage Publications – argue that supplying readings to students without paying permission fees each semester for pretty much everything is obvious copyright infringement.  They specifically attempt to refute the claim that such copying is fair use.  Several aspects of that argument should cause great concern in higher education.

First, the plaintiffs argue that a fair use “checklist” is the wrong tool for helping faculty members make fair use decisions.  The checklist adopted as part of GSU’s new copyright policy is, they assert, “skewed in favor of a “fair use” outcome.”  This is worrying because so many institutions have adopted a form of the checklist, believing it to be appropriate in part because the Association of American Publishers seemed to endorse it when they approved revised copyright policies that include the checklist in their negotiations with Cornell and several other institutions.  In fact, the Copyright Clearance Center, which is the permissions collection agency for all three plaintiff publishers, itself suggests a version of the checklist that can be found here.  If there is a distinction between these checklists and that used by Georgia State, we need to know what it is, but as far as I can tell, the CCC checklist works in exactly the same way that the plaintiffs object to regarding the GSU version.

If the checklist is not a good guide for fair use, in the publishers’ opinion, what should we look to?  The plaintiffs suggest two major guideposts for fair use – the notion of transformation and the Classroom Copying guidelines from 1976.  Transformativeness, of course, never appears to apply to copying of small excerpts for distribution to students, unless it is given a very broad definition which the plaintiffs deny here.  And the guidelines for classroom copying, which were adopted in spite of objections from higher education and are intended to apply to a different situation, cap the length of an fair use excerpt at 1,000 words.  Such a limit would rule out about 99% of all readings offered to students under fair use.  So we are left to ask what would be fair use in an e-reserve situation; the plaintiffs’ brief suggests that almost nothing would be permitted without paying for permission each semester.

Interestingly, the defendants’ brief does not make an argument about fair use at all, although it is implicit in their reliance on their new policy.  Instead they argue two fundamental points.  First, they claim that the suit is misdirected under the narrow exception to sovereign immunity that the plaintiffs are trying to exploit.  This is the force of the argument that none of the named defendants have a direct or indirect role in any copyright infringement, so an injunction against them would be ineffective and the suit, therefore, should be dismissed.  Their second point is that the requested injunction, because it does not permit any room at all for the exercise of fair use as defined by the GSU policy, is too broad and vague to meet the basic requirements for such orders.

I have to note in regard to these cross motions that I am not particularly a fan of deciding fair use arguments on the basis of summary judgment.  Fair use is intended to force courts to make a detailed examination of the circumstances of the use in each case.  All too often it has become as mechanical in court as the plaintiffs complain that the fair use checklist is.  Courts ask routine and traditional questions regarding each factor and then add up the results; they do not, usually, probe as they should into specific circumstances, for which the usual questions are often a very poor substitute.  This unfortunate tendency is made much worse when fair use cases are decided on summary judgment, where all the judge has is the documents filed and is unable to ask questions and seek more specific information.

So I guess I am left hoping, in this case, for one of two results.  Either the defendants’ motion should be granted, in which case the case goes away on essentially procedural grounds and we are all left where we have been for years, or both motions should be denied and the case taken to trial.  In the latter case, the fair use dispute could be fully aired and a useful record developed.  Only in that situation would other universities be able to glean really helpful guidance from a decision.