Category Archives: Copyright in the Classroom

Copyright in the Classroom, Digital Rights Management, Technologies

Reading the fine print

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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.

Copyright in the Classroom, Digital Rights Management, Fair Use, Technologies

The new, improved DMCA

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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.

Copyright in the Classroom, Fair Use, User Generated Content

Transformation and teaching

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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.

Copyright in the Classroom, Copyright Issues and Legislation, Fair Use

Summary judgment in the GSU case?

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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.

Copyright in the Classroom, Copyright Issues and Legislation, Fair Use, Technologies

Smoke got in my eyes

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It has been widely reported that UCLA has decided to re-start its program of streaming digitized videos for course-related viewing.  They do so based on a set of principles adopted by the faculty, which can be read here.

Readers of this blog will recall that I have previously expressed ambivalence about whether and how this practice can be justified under our current copyright law.  I expressed that ambivalence in this posting, and many comments flowed in, most from experts for whose opinions I have great respect.  Several were more sanguine than I about the legality of streamed digital video, while some were certain that no justification could be found.

I still had not made up my mind when I read about UCLA’s decision to resume their activities.  But yesterday’s article in Inside Higher Ed., which includes statements from the lawyer for the trade group that originally threatened UCLA , has really helped me clarify the issues.  It seems to me that there are two glaring and obvious misstatements in AIME’s denunciations of UCLA, and that these misstatements actually point out why the practice is justifiable.

First, AIME’s lawyer insists that UCLA will stream videos to “an unlimited number of students.”  But a cursory reading of the principles adopted at UCLA shows that the program will limit access to each video only to students enrolled in a class for which that film is required content.  Surely that is a limit on the number of students who will see the film using UCLA’s streamed service; only those students who can authenticate into the course management site for the particular course will be able to view each film.  In other words, the audience is limited in exactly the same way that it would be if the film were shown in a classroom to the assembled students.

Second, the remarks from AIME stress the fact that UCLA will buy only a single copy of each film, as if that is different from prior practice.  But of course, most universities buy only one copy of most DVDs, which are then shown in class to a group of students or put on reserve so that students can come in and watch the film in a library or media lab one at a time.  During the time UCLA had suspended its program, this was the practice it followed.  What it did not do was buy large numbers of each film and hand them out to individual students, which the AIME statement seems to suggest is the only alternative.

This, of course, is absurd, and it is disingenuous.  In its negotiations with UCLA, I am very sure that AIME did not propose that there was some number of multiple DVDs which, if purchased, would render the practice of streaming that film for student viewing fair.  If there is such a number, I suggest that AIME should tell us what it is; I am sure many schools would prefer to buy that number of copies in order to provide the streaming services our faculty and students want while still not exposing themselves to liability.  But multiple sales are not the issue here.

What AIME is seeking, naturally, is repeated licensing fees.  They are happy to have schools buy only one copy and stream it if, for each film, a license fee greatly in excess of the cost of the DVD itself is paid, and paid each semester.  The film companies do not want to settle for slightly increased sales of DVDs in this matter, they want to turn our campus intranets into pay-per-use jukeboxes that will provide a new and virtually unlimited income stream.

In the past, universities bought single copies of films and showed them to groups gathered together in a classroom or to students on a one-to-one basis.  The film companies may have grumbled about the doctrine of first sale and the face-to-face teaching exception that permitted this, but there was little they could do.  Now those film companies hope to create new revenue by forcing us to pay to show the same single copy to the same students over a closed network.  In short, they want large fees for space-shifting.

The fact that AIME’s attorney uses this phrasing, with its two statements that misdirect the reader from the real issue, suggests that he realizes how strong the fair use argument, based on space and time shifting to accomplish a purpose that is specifically authorized by the copyright act, really is.  Rhetoric about single copies and unlimited students is a smokescreen, and when the smoke is cleared away it is easier than it has ever been for me to see the powerful fair use argument in clear focus.

Authors' Rights, Copyright in the Classroom, Copyright Information Notes, Scholarly Publishing

“Renewing copyright” and a reflection on versions

In a post about two months ago I promised that I would offer a link to the article I wrote on reforming copyright law from the perspective of academic libraries.  That article was published this month in portal: Libraries and the Academy, and is now also available in DukeSpace, the open access repository at the Duke Libraries.

The full citation for the article is:  Kevin L. Smith, “Copyright Renewal for Libraries: Seven Steps Toward a User-friendly Law,” portal: Libraries and the Academy, Volume 10, Number 1, January 2010, pp. 5-27.

The published version is available on Project Muse at http://muse.jhu.edu/journals/portal_libraries_and_the_academy/summary/v010/10.1.smith.html

If you cannot access Project Muse, this is the link to the DukeSpace version, which is my final manuscript but lacks the formatting and copy editing done by the good folks who publish portal:

http://hdl.handle.net/10161/1702

As I said in the original post linked to above, I hope my suggestions will be read in combination with those made by Professor Jessica Litman in her wonderful article on “Real Copyright Reform.”

I had intended to end this post with the information above, but a recent discovery has caused me to change that plan.  Late last week I discovered that a small error, an extra clause made up of words from elsewhere in the sentence, was inserted into the HTML version of the article.  It does not appear in my manuscript, nor in the PDF of the published article, only in the HTML version.  I contacted the editorial folks at portal and expect that the error will be fixed shortly, perhaps even before I publish this post (Note on 2/2 — the error has been corrected).  But it does raise some questions about some of the assertions made on behalf of traditional publication.

First, we are often told that copy editing adds value to an article and that publishers deserve compensation for adding that value whenever the public is given access to the final published version of an article.  On the compensation issue I shall write more later.  But here I want to note that the editorial process can insert errors as well as eliminate them.  I found the editorial assistance from portal to be superb, but, in spite of their best efforts, the multiple stages of the publication process are not all within their control.  The result was that a error that I was not responsible for, albeit a minor one, found its way into my work.

Second, this small incident raises questions about the assertion that publishers provide the scholarly community with the “version of record” that assures consistent quality.  In fact, there are two different versions of my article available at this moment (on 2/1) on the Project Muse site for this journal — the HTML is different from the PDF in at least this one respect.  So which is the version of record?  To make that determination, I am the final arbitrator, and I hope that the error I caught in the HTML will be corrected based on my request.

This suggests that there is at least an argument that the “version of record” should be the one that is closest to the author’s hand.  Who else has a greater incentive to insure accuracy, after all?  A serious error may impact the publisher’s reputation to some degree, but it can be devastating to that of the author.  And I would certainly hope that a significant error, such as an incorrect calculation or formula, would never be “corrected” by a copy editor without first consulting the author; it is easy to imagine cases where what looks like an error — a deviation from the expected — is in fact the heart of the argument.  Thus significant corrections should always be made with input from the author, and the author would then be free to correct any versions she has made available to the public.  So I would like to see discussions of “version of record” include the likelihood that the version nearest to the author may, at least sometimes, be the most accurate version available.

Authors' Rights, Copyright in the Classroom, Open Access and Institutional Repositories

ScienceOnline and copyright anxiety

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I attended parts of the ScienceOnline 2010 conference, held here in the Research Triangle this weekend.  There was a fascinating array of topics discussed and an interesting crowd of 270+ that included many working scientists, librarians and even journalists.  It was a great opportunity to listen to scientists talk about how they want to communicate with one another and with the general public.

There are some excellent discussions of what went on at this year’s conference, especially here and here on Dorothea Salo’s blog.  Those with a real passion for more information can check out this growing list of blog posts about the conference.  I won’t try to compete with these comprehensive recaps, especially because my selection of events to attend was rather idiosyncratic, and perhaps even ill-advised.  But I do want to make three quick observations about what I personally learned from the conference.

First, I discovered one more argument for open science that had not occurred to me before, but has the potential to be very compelling for scientists on our faculties.  One reason academic research should be online is that “junk” science is already there.  If the general public — including the proportion thereof who vote or require health care — do not make good decisions in regard to matters involving scientific knowledge, we can only blame ourselves when the best research is not available to them, hidden behind pay walls.

Second, I was fascinated to discover that health science bloggers have developed a code of ethics to try and account for the many issues that arise when scientists put important and potentially life-altering information onto the open web.  The benefits of this openness are indisputable, but so are some of the risks.  This code of ethics represents an attempt to address some of those risks and minimize them (there is a somewhat different discussion of a similar issue from the conference here).  The criteria applied to evaluate health care blogs (see the text of the code itself) — clear representation of perspective, confidentiality, commercial disclosure, reliability of information and courtesy — encapsulate standards that all of us who try to share information and opinion online need to be aware of.

Third, I was amazed at how important, and problematic, copyright issues were to this group.  I attended seven sessions at the conference, and five of them dealt with copyright as a major (although often unannounced) topic of discussion.  Even recognizing my tendency to gravitate toward such sessions, this is a high percentage.  I asked a fellow attendee why so many sessions raised copyright and was told, albeit with tongue in cheek, that it is “ruining our lives.”  More seriously, one scientist described trying to put his classroom lecture slides online and being told by his university’s counsel that all material that he did not create had to be removed first.  Apparently there was no discussion of the applicability of fair use and how to decide what was and was not allowable; just a wholesale rule that would discourage most scientists interested in sharing.  This suggested to me that it really is very important to improve the quality of copyright education on campus — for faculty, librarians (who are often the ones asked for advice) and even legal counsel.  We cannot reasonably advocate more online open access unless we also give our scholars the resources to accomplish that goal.  In many ways the technological infrastructure is becoming trivial and it is the policy and legal questions that must be addressed directly if we really want encourage openness.

Copyright in the Classroom, Copyright Issues and Legislation, Fair Use

What wasn’t decided

Sometimes what a court does not decide can be more important than the actual ruling that the court makes.  One newsworthy example of this possibility is the extraordinary step taken by the judge in the file-sharing case of Joel Tenenbaum.  As this opinion piece from Ars Technica reports, Judge Nancy Gertner has finalized the decision holding Mr. Tenenbaum liable for copyright infringement, but has also detailed how she might have ruled if a limited fair use defense had been raised.  To say that her 35-page memo is extraordinary is an understatement; in it she suggests that the defense team’s error in raising a sweeping fair use claim rather than one narrowly tailored to specific circumstances was costly indeed.

Judge Gertner is no fan of copyright laws that hold people liable for accidental infringement, which happens fairly often with file-sharing systems (although not, apparently, in the Tenenbaum case) or hold teenagers liable for hundreds of thousands of dollars over a handful of songs.  In her memo she invites Congress to reconsider some of the draconian provisions of our current copyright statute and also suggests that she might have found some file-sharing, in select circumstances, to be fair use.  But that was not the issue put before her or decided in the case.

An even more significant decision for higher education — or really a lack of a decision — is found in a case from late October in the Southern District of New York involving online solution manuals for copyrighted textbooks.  In Pearson Education & Cengage Learning v. Nugroho Judge Deborah Batts (who I criticized earlier in the year over her Salinger ruling) found copyright infringement in the defendant’s online sale of solution manuals for plaintiffs’ textbooks.  Apparently the solution manuals were identical to ones sold by the textbook publishers themselves, although Mr. Nugroho claims he did not realize this, so the decisions seems to me to be correct for this situation.  There is a nice description of the case here. But, in keeping with my theme, let’s look at what was not decided.

First, this ruling involved the recognition that the solution manuals were derivative works of the textbooks.  This finding was necessary because the copyright in the solution manuals had never been registered, so the court was barred from considing them as independently protected works. The opinion focus on the fact that the solution manuals “have no independent viability” from the textbooks (which were registered), and are therefore considered infringing derivative works.  What is not clear is where the line is after which something is no longer a derivative works, and the “independent viability” test does not seem to be a precise enough answer.  If I take a single problem from a textbook and work out the solution, but do not copy any original expression, that solution may not have independent viability, but I doubt that by itself it is a derivative work.  Indeed, this kind of thing happens all the time when instructors or their teaching assistants provide sample solutions through various course websites and other tools.  Surely not all of these are infringing derivative works.  Let me repeat that I have no quarrel with the decision as it stands, but wonder where its boundaries are, especially in regard to common educational practices.

Another issue that was not decided in this case is when the kind of derivative solutions that I have just described might be fair use.  Fair use was apparently not raised, and it certainly is not considered in the ruling.  Given the fact that entire solution manuals identical to those produced by the companies were being sold without authorization, I doubt a fair use defense would have been appropriate.  But there are certainly situations where the creation of answer sets for problems posed in a textbook could be fair use, perhaps where a small amount of protected expression is copied or the problem represents largely unprotected facts, and the solution sets are available without charge to a small group of students.  Whether this is allowable or not is a fairly common question, especially from teaching assistants, and the important point from the Pearson case is to note that this issue has not been decided.

Copyright in the Classroom, Copyright Issues and Legislation

Through the copyright looking glass

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It is getting both monotonous and annoying to write repeatedly about badly reasoned court decisions in the area of copyright.  Unfortunately, when they directly impact higher education, we cannot ignore these pernicious errors by our federal courts.

Earlier this month, a district court in Michigan handed down such a decision in yet another “course pack” case in that state.  There was a twist this time, however, which the court chose to ignore.  In this case, brought by Blackwell, Elsevier, Oxford, Sage and John Wiley publishers, the copy shop received photocopied course packs from professors, than handed them to individual students who made copies for their own use.  Amazingly, the court found that this practice constituted direct infringement by the copy shop of the copyright holder’s exclusive rights of reproduction and distribution.

The problem, of course, is that no employee of the copy shop took any action that actually implicated either of these rights.  The shop, owned by Excel Research Group, actually made no copies of any of the material over which the suit was brought.   Judge Avern Cohn contemptuously dismisses this point, asserting that “the fact that the students push a button on a copier in the manner described is of no significance.”  But such facts are exactly what are significant in legal reasoning, and the judge offers no principled reason for ignoring this fact other than his apparent desire to see the plaintiffs win their case.

Even more troubling was the treatment of the distribution right, which the court said was infringed by the shop handing out the course packs it was given.  For this to be true, those copies would have to be unlawfully made, so that the doctrine of first sale did not apply to them.  But Judge Cohn made no such finding; he simply noted that the packs were brought to the shop by professors who assigned the readings to their students.  Again, the judge seems disinterested in either the details of the law or the facts before him; he simply appears anxious to arrive at the conclusion he thinks is desirable.

This startlingly bad reasoning serves a purpose for both the court and the publishers, of course.  It is the only way, albeit one that requires ignoring both law and facts, to hold the copy shop liable without also saying that the copies made by faculty members and students were themselves infringing.  The shop’s liability, if any, is clearly contributory to direct infringement by students and their instructors.  But the court did not want to hold this way, and I am sure the publishers did not ask them to.  To find direct infringement would be so obviously to attack the basic necessities of education, and would so clearly contravene the intention of Congress when they included “multiple copies for classroom use” in the list of examples of fair use, that it was too politically dangerous.  And publishers would fear, no doubt, a decision that would suggest to their customers that their products truly are unusable. So rather than find direct infringement by teachers and students so as to hold the copy shop indirectly liable, the court rendered an incoherent decision in which Excel is held liable for directly infringing copyright without making a single copy.

There is some excellent analysis of this decision by Peter Hirtle here and by Shourin Sen here.

The result of this case is similar to what we have been decrying for some time now — a creeping expansion of the exclusive rights in copyright way beyond the boundaries Congress set for them.  Here that expansion has been abeted by a judge who apparently sees his role as a kind of knight-errant, righting every wrong he perceives, regardless of the legal foundation.

Copyright in the Classroom, Fair Use, Scholarly Publishing

Choosing between reform and revolution

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A recent article by Steven Shavell called “Should Copyright of Academic Work be Abolished” caught my notice, as I am sure it did for many others, because of the radical question posed in its title, but it ultimately focused my attention on a different article altogether. I hope to have more to say about Professor Shavell’s work in a later post, but here I want to record my initial reaction, which was that copyright in academic works need not be abolished but should be heavily reformed. And the best reform I can think of (short of legislative revision) is the re-evaluation of fair use, based on more attention to the second fair use factor, that is suggested in Robert Kasunic’s article “Is That All There Is? Reflections on the Nature of the Second Fair Use Factor.”

The second fair use factor – the nature of the copyrighted work – is usually treated very mechanically by courts, and sometimes is ignored altogether. When it is discussed, it is in a few sentences addressed to only two issues – whether the work is published or not and whether it is creative or factual. Kasunic, who is Principal Legal Advisor to the Copyright Office, suggests that this treatment seriously undervalues the importance of this part of the fair use analysis. He argues convincingly that the second factor, when examined carefully, offers a wealth of information that could improve consideration of all of the fair use factors. Indeed, one of his major points is that the fair use factors are a guide for fact-gathering, not a mechanical “tally sheet” or scorecard.

If courts pursued the probing questions about the nature of an original work that Kasunic suggests when considering a claim of fair use, the result for academic work would be, I think, truly revolutionary, because those courts would learn how much more leeway should be accorded to academic work than would be appropriate for other types of work. Kasunic argues that part of the scrutiny that should be applied to the original work would ask what the particular incentive structure for that type of work is. When the purpose of copyright law is understood properly, as a mechanism to give incentives for creation, the expectations of the authors and creators are really the only guide for what uses should be compensated and what uses need not be. Thus it is important to ask what the normal incentives for creators of that particular type of work are and what markets supply those incentives. Unexpected markets, or markets that benefit only secondary owners of copyrights rather than authors, are not relevant in deciding if a particular use is fair or not.

When academic work is considered, it is clear that the scope of fair use would be very broad under this more sensitive and sensible analysis. Academics are usually not paid for their most frequent works of authorship, journal articles, and compensation for books authors is meager. Thus the protection of various markets s not necessary for this type of work in order to effectuate the purpose of copyright; incentives for authors clearly come from some place else. Also, it is usually a secondary copyright holder who is trying to protect those markets, which further reduces their value as an incentive for creation. Finally, secondary markets, such as permission fees for electronic reserves and course packs are usually wholly unexpected, and therefore have no incentive value, from the point of view of academic authors. In fact, I once had a faculty author ask me if a check from the Copyright Clearance Center was some kind of scam, so unexpected was the tiny windfall he was being offered.

As Kasunic points out, different types of authorship receive different rights under our copyright law; it is logical, therefore, to also think about fair use differently depending on the specific facts that surround the creation of a particular category of work. Academic works would, in such a fact-specific analysis, be subject to much more fair use than a commercial novel, film or song. Indeed, Kasunic selects as the example with which he closes his article the case of academic authors and fair uses claims for course packs and electronic reserves. Although he does not spell out a conclusion, it is clear from his discussion that the facts uncovered by the searching analysis he recommends would greatly favor a liberal application of fair use for that type of work.

Since an actual case such as Kasunic describes is currently being litigated – the lawsuit against Georgia State University alleging copyright infringement in the distribution of electronic course readings – it is hard to resist reading his article with that case in mind. Kasunic presents, to my mind, a compelling argument that the court should look very careful at why the works in question were created in the first place and focus a fair use finding on the incentives for creation and not extraneous claims for windfall profits made by secondary copyright holders. This would be a sensible application of a factor that has largely been treated as unimportant; it would take seriously the intent of Congress and their instructions to courts when they codified section 107. And it would dramatically increase the likelihood that many of the uses in question at Georgia State (at least those uses that involve academic writings) would be found to be fair use.