Category Archives: Copyright Issues and Legislation

Fair Use is for Innovation

[cross-posted from the Copyright at Harvard Library Blog and written for Fair Use Week]

Remember Betamax? I do, but mostly for the fair use case that it precipitated, Sony Corp. v. Universal Studios, Inc. That case was decided by the Supreme Court in 1984. Among other things, it stands for the proposition that fair use allows for copying of copyrighted works for personal, non-transformative purposes, such as in-home recording of television shows to view at a later time. Betamax machines aren’t particularly relevant anymore, but the approach on how courts should apply fair use in light of technological change, as outlined in the case, is as relevant now, as ever.

Fair use and the purpose of copyright

At this point, personal home copying is commonplace; we do it all the time with home DVRs, when we back up our computers and phones, and when we transfer mp3s from an old device to a new one. It’s worth remembering that the legality of this sort of everyday copying, and the legality of the technology that supports it, wasn’t always accepted.

One of the issues that the Betamax case brought to a head was what courts should do when faced with new technology that makes following the literal terms of the Copyright Act result in legal outcomes that don’t match up with copyright’s underlying purpose. The Betamax court framed the issue this way:

“The immediate effect of our copyright law is to secure a fair return for an `author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. `The sole interest of the United States and the primary object in conferring the monopoly,’ this Court has said, `lie in the general benefits derived by the public from the labors of authors.’  When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose.” (citations omitted).

Fair use is one of the tools that gives courts some flexibility in construing the terms of the Copyright Act in light of its basic constitutional purpose. It is an “equitable rule of reason” that gives courts requires courts to “avoid rigid application of the Copyright Statute when on occasion it would stifle the very creativity which that law was designed to foster.” In that role, fair use has, through the years, facilitated all sorts of technological advancements, from video game development to plagiarism detection software to search engines to image search.

ReDigi and digital resale

One area where we are seeing some interesting emerging innovation is in technology that facilitates secondary markets for digital copies. As a result of so much invention in personal copying and storage devices (and distribution mechanisms to get content to those devices), we now find ourselves in a situation where users have legitimately purchased copies of works for which they never obtained a physical copy. iTunes is the most prominent example, where $0.99 will buy you an mp3 and a variety of other files.

What users can do with those copies is an interesting question. In the past, purchasers of physical copies of books or records could resell, lend, or even destroy the copies they purchased. Congress and the courts recognized that it was desirable for such secondary uses to go unimpeded by copyright, and so crafted a limit on the ability of copyright holders to control downstream distributions of their works after the “first sale” of the copy.

For digital copies, however, the question is a bit more complicated. Users who want to resell or lend their digital copies may be free to “distribute,” but reselling or lending digital copies also, technically, requires a reproduction of the file from one device to the next. The first sale rules, at least as codified in the statute, only address distribution and not reproduction, so technically these resales don’t fall within its scope.

This seems like a prime opportunity for fair use to jump in and bridge the gap between the strict terms of the Copyright Act and the underlying purpose of what the Act is trying to achieve. That’s precisely the issue currently being argued on appeal by a company called ReDigi, which has setup its own online market place for reselling your unused iTunes files. ReDigi lost before the lower court, but it is now taking up its case before the Second Circuit Court of Appeals.

As with the Betamax case, the implications for other applications of fair use extend far beyond the immediate uses that ReDigi seeks to make in reselling mp3s. Among other things, it could facilitate library lending of e-books (as argued in this excellent amicus brief from ALA, ACRL, and ARL and Internet Archive), and could relieve all sorts of legal concerns about transferring and providing access to born-digital archival materials.  It’s the kind of case that could also fuel the vision outlined by Internet Archive in its ambitious $100 million, 4 million book digital-lending project.

Whether or not ReDigi wins this particular battle, I think it’s worth celebrating that fair use has provided the flexibility to pursue these sorts of innovations in the past that help fulfill the Copyright Act’s Constitutional purpose of promoting progress.

How to Restrict Access to the Law (and Make Money Doing It!)

Standardization is really important. Huge parts of modern life—everything from sending an email to the structural integrity of your car—depend on standards. Among other things, standards make sure we’re all on the same page. When I say “2017-02-07” you might have some clues about what I mean, but if I tell you that this string of numbers is expressed according to ISO 8601, you’d know for sure that I’m referring to today’s date.

Standardization is so important, in fact, that a large number of standards are made part of the law. On Friday the Federal District Court for the District of Columbia issued an opinion in ASTM v. Public.Resource.Org, addressing some hard questions about the extent to which copyright applies to standards, and in particular standards that have the force of law by virtue of their official adoption by regulatory agencies. The court concluded that the standards at issue in that case—a variety of technical and education standards developed by ASTM, APA, and several other groups—are protected by copyright and that their incorporation into binding law through regulations does not affect that copyright-protected status. I find that conclusion troubling.

A Standards Business Model

First, why do organizations like ASTM care? Imagine that you’re developing a new standard and you think you need to make some money to recoup your costs. One way to do that is to charge people who want to use the standard. To make that work you’d probably try to obtain some form of intellectual property protection so that you have leverage when asking for your fee. What kind of IP protection do you want? There might be some ways that you could try to work your standard into something patentable, but patents are expensive and hard to obtain. Another option is copyright. Copyright lasts much longer, is easier to obtain, and has some hefty enforcement provisions (statutory damage awards up to $150,000 per work infringed). So, you go with asserting copyright.

Next, you need to get people using this standard. Of course, voluntary adoption is great. But mandatory compliance is even better. So, you lobby some government agencies to adopt your standard as binding law itself.  That way, anyone who is obligated to follow the law will have to also follow your standard. It’s important, though, that the text of your standard not be reproduced in the regulation itself. Those are generally freely available, but you need to sell the thing. Instead, you aim to get the regulation “incorporated by reference” into the regulation; the regulation says that the public must comply with Standard X and gives a reference to it, but if a member of the public wants to know what Standard X  actually says in order to comply with the law, they’ve got to go buy a copy from you.

Now, I don’t mean to say that incorporation of standards into law is a bad thing or is only done to make money. It isn’t, but the restricting access part of this model seems problematic. It’s also at the core of the business model staked out by ASTM and the other plaintiffs in ASTM v. Public.Resource.Org. Posting free copies of those standards to the web for public access, as does, poses a threat to that model.

Should Standards Receive Legal Protection?

First, the business model is premised on copyright protection of standards, but there are persuasive arguments for why standards should be excluded from copyright protection. The text of the Copyright Act is a good place to start. Section 102(b) states specifically that “systems,” among other things, are not protected. That and a variety of other  theories for why copyright protection should not apply were raised in the ASTM case.  This post from TechDirt does a good job working through the copyright-related arguments made by The court rejected them all, but I imagine we will hear more about them on appeal.

Beyond copyright, though, the main reason I find the ASTM decision troubling is that it gives relatively little attention to fundamental questions about due process, the public’s right to access the law, and earlier caselaw on the subject.   Rather than write out my own ideas on this, I’ll leave you with this good quote from the 1980 First Circuit case Bldg. Officials & Code Adm. v. Code Tech., Inc., which outline those concerns and raises some good questions that I hope will be addressed on appeal in the ASTM case:

“[Earlier Supreme Court cases hold that] the public owns the law not just because it usually pays the salaries of those who draft legislation, but also because . . . ‘Each citizen is a ruler, –a law-maker.’ The citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authority from the consent of the public, expressed through the democratic process.

Along with this metaphorical concept of citizen authorship, the cases go on to emphasize the very important and practical policy that citizens must have free access to the laws which govern them. This policy is, at bottom, based on the concept of due process. . . . Due process requires people to have notice of what the law requires of them so that they may obey it and avoid its sanctions. . . . But if access to the law is limited, then the people will or may be unable to learn of its requirements and may be thereby deprived of the notice to which due process entitles them. [Defendant] points out that the holder of a copyright has the right to refuse to publish the copyrighted material at all and may prevent anyone else from doing so, thereby preventing any public access to the material. . . . We cannot see how this aspect of copyright protection can be squared with the right of the public to know the law to which it is subject.”

Where should the Copyright Office live? A response from Duke Libraries

James Madison Building
The Library of Congress James Madison Building where the Copyright Office is located. Credit to Flickr user KenLund, licensed under a CC-BY-SA 2.0 license.

The U.S. Copyright Office has been a major topic of discussion lately. A few weeks ago Register of Copyrights Maria Pallante resigned, following her removal by new Librarian of Congress Carla Hayden from her post as Register and into a new advisory position in the Library. Beyond the speculation about what exactly led to Pallante’s reassignment, the move has reignited debate about the relationship between the Copyright Office and the Library of Congress. The Library of Congress has overseen the Copyright Office since the Office’s inception more than a century ago, but there are increasingly serious calls (including from Congress) for changing that relationship and possibly moving the Office outside the Library. Earlier this week Duke Libraries weighed in with a letter to Congress, and I know several others will too in the next few days. [Edit: this includes a letter drafted by Brandon Butler on behalf of himself and 42 individual copyright-library experts (including me!), that was sent today].

Why the Copyright Office matters

While the Copyright Office doesn’t actually have a lot of say in interpreting copyright law, it does make recommendations to Congress on copyright policy and plays an important role in shaping new copyright legislation. I think because of that, the question about where the Office resides has turned into a sort of proxy debate about the broader question of who should be exerting control over the Office and over copyright policy more generally. Putting a finer point on the issue, Ralph Oman and Marybeth Peters—the two Registers of Copyrights who immediately preceded Pallante—recently sent a letter to the leadership of the two relevant House and Senate committees.  Oman and Peters are apparently not fans of Library of Congress supervision, and this quote sums up their overall point:

 [T]he competing missions and differing priorities of the Library and the Copyright Office have increasingly emerged as a source of tension. . . . [T]hey are inevitable given the divergent roles of the two organizations. Stripped to its basics, the choice is stark: Does Congress want modernization and independent copyright advice straight and true from the expert agency, or does it want copyright administration and advice filtered through the lens . . . of the head of the national library?

Their letter is loaded with some bad assumptions, and so earlier this week and thanks to Duke Libraries’ director Deborah Jakubs,  Duke Libraries sent this letter to Congress to correct some of those inaccuracies and makes the case for why the Library of Congress is the best choice of home for the Copyright Office.

Libraries and the copyright system

The Duke Libraries letter first addresses the idea that there is an irresolvable conflict between the missions of libraries and the Copyright Office.  Oman and Peters suggest that Libraries have only a “limited goal” of “offering to the public the greatest possible volume of material, often at little or no direct cost to their patrons.” That’s a pretty narrow conception of what libraries do and suggests a bias with respect to copyright that just does not exist. Here’s how the Duke Libraries’ letter responds:

Libraries like ours have perhaps the most well-rounded and balanced relationship with copyright of any group of institutions in the world. Duke Libraries, like many other libraries, spends millions of dollars every year on services for our faculty and students to help them navigate the legal, technological, and economic choices they face as creators. Our libraries partner with those creators . . . on publishing. Duke Libraries also administer the rights to thousands of works for which we own copyright, primarily in our rare book and archival collections. . . .  Duke Libraries also invest millions of dollars each year into the publishing system by purchasing content and supporting new and emerging publishing platforms. . . .[W]e now spend even more money on developing strategies to carefully respect the rights of copyright owners as we seek to preserve and provide access to those materials in forms that are useful to researchers.

While all of that is true about Duke Libraries, we’re not unique. This is what libraries do, and to suggest a much narrower mission as Oman and Peters do obscures the far more balanced role that libraries play within the copyright system.

Impartiality of the Copyright Office

The second issue the Duke Libraries letter addresses is this idea that the Copyright Office has acted impartially and that more oversight from the Library of Congress would corrupt that impartial approach. As the letter points out “in recent years and without meaningful Library of Congress oversight, the Copyright Office has drifted into a markedly content industry-centric approach to copyright policy while at the same time failing in its core function of promoting and making accessible copyright registration information.” Highlighting some of the recent failings of the Office in its policy positions—some of which have recently and very publicly been rejected by the courts—and the lack of focus on core registration functions, the letter concludes with this:

The Office has not offered for some time the “straight and true” copyright policy advice that Oman and Peters suggest it should, nor has it adequately worked to achieve its core function of facilitating registration information. . . . The solution for the Copyright Office is not less oversight from the Library of Congress but more. Leadership from an experienced administrator such as Dr. Hayden who can guide the Office back to a position of impartiality and to a focus on its core function is a welcome development for Duke Libraries and for the public that has been so often ignored by the Office in favor of the content industry.

As many others have pointed out, copyright’s Constitutional purpose derived from the IP clause, “to promote the progress of science and [the] useful arts”, closely matches our own mission as a university and library. Like most university libraries, Duke Libraries are at the heart of creative process at our university. Likewise, the Library of Congress should stand at the heart of our national system to promote progress and creativity.

We’re back! (and so is the GSU fair use e-reserves appeal…)

Dave Hansen
Dave Hansen, Director of Copyright and Scholarly Communications

After a few months of quiet, I’m happy to say that the Copyright & Scholarly Communication team at Duke is bringing this blog back to life. Since Kevin Smith left to become Dean of Libraries at the University of Kansas, I have stepped in to take over his old post as Director of the Office of Copyright and Scholarly Communications at Duke. If you’re interested in who I am and what I do, you can check out my new Scholars@Duke profile. I plan to use this blog to cover the same types of issues that Kevin did, especially copyright and publishing, as well as to highlight some of the interesting projects happening here at Duke on those same subjects.

I think it’s only appropriate that my first post is about the Georgia State University e-reserves copyright lawsuit. This blog has more or less chronicled this suit since it was filed in 2008. For anyone unfamiliar, the case is about whether it is fair use for GSU professors to make electronic excerpts of books available to students in their courses.  The plaintiffs Cambridge University Press, Oxford University Press and Sage argue that in most cases it is not fair use. So far, the courts have mostly decided in favor of GSU regarding the specific uses made by GSU and its faculty.

Publishers’ Brief on Appeal

Publishers' SECOND appeal is again before the 11th Circuit Court of Appeals
Publishers file opening brief in their SECOND appeal before the 11th Circuit

On Friday the Publishers filed their opening brief on appeal (their second appeal!) before the 11th Circuit Court of Appeals. The brief isn’t a huge development. But, it makes some fascinating, and concerning, fair use arguments that are worth discussing. On fair use the brief basically argues:

  1. The lower court didn’t balance the fair use factors correctly. It argues that the court placed too little weight on the fourth fair use factor (whether GSU’s uses harmed the market for the works).
  2. That the lower court made it too hard for Publishers to show that their markets were in fact harmed.

Market harm is critical for the Publishers because they don’t have much else left to argue about. Based on what the appellate court said on the last appeal, the first factor (educational in-class use) strongly favors GSU; the second factor (nature of the work) tends to favor GSU in many cases, though the appellate court said this factor doesn’t count for much, and the third factor (the amount and substantiality used) also tends to favor GSU in most instances

Balancing the Fair Use Factors

The Publishers make some good introductory points about how courts should weigh the fair use factors. The brief recites case law saying that the factors should be balanced together, that there are “no hard evidentiary presumptions” as to what types of uses may be fair, and that the district court should not take a “rigid” or “mathematical” approach to fair use (something that the district court was chided for the first time around on appeal).  So far, so good.

But then comes their core argument about market harm and fair use balancing, which I think fails. It starts by asserting that the lower court was too mechanical in its approach. The brief seizes on a statement made by the lower court, that it “estimates that the initial, approximate respective weights for the four factors as follows: 25% for factor one, 5% for factor two, 30% for factor three, and 40% for market harm.” (Dist. Ct. Op. at 14).

I agree that assessing the numerical percent value of each factor is somewhat unusual. What’s really strange, though, is that you would think that the Publishers would be happy with a mechanical approach under which market harm is weighed as 40% of the analysis—in other words, almost outcome determinative.

Market Harm Above all Else?

Apparently almost outcome determinative isn’t good enough. In a section of the brief that contrasts starkly with those opening (and mostly accurate) statements of the law about balancing the factors together, Publishers argue that no use can be fair use if there is any market harm:

“This (literally) calculated choice of numerical weights . . . produced findings of fair use even where the court found market harm under factor four that weighed against fair use. Indeed, the court made clear its resistance to granting dispositive significance to factor four by stating that while factor four would be given “additional weight,” factor three was “critical” because it was “at the vortex of the holistic evaluation required by the Court of Appeals’ Opinion.”

Like some of the other positions the Publishers have raised in this case, this approach might make sense 30 years ago. In 1985, the Supreme Court announced that the market harm factor is “undoubtedly the single most important element of fair use.” But, the Supreme Court has since walked back this approach. It stated clearly in 1994 in Campbell v. Acuff-Rose that “all [factors] are to be explored, and the results weighed together, in light of the purposes of copyright.”

In the first GSU appeal, the 11th Circuit recognized that Campbell is controlling:  “This language [from Campbell] appears to be inconsistent with any single factor being deemed the single most important.”  The 11th Circuit reasoned, however, that in this case because “the threat of market substitution is severe, it is appropriate in this instance to afford relatively great weight to the fourth factor in the overall fair use analysis.” In fact, the lower court obeyed that direction. It gave market harm 40% weigh in each determination, more than any other factor. It just declined to make market harm outcome determinative, (worth 51% or more, in other words) which is what the Publishers wish for.

Takeaways for Educational Users

The weight given to market harm—even the difference between 40% and 51%, if you want to try to attach a percent value on it—is critically important for educational users. We now live in a world where books never go out of print (print-on-demand). License services are proliferating, and one can buy permission to do an increasingly broad array of activities, such as text or data mining. If courts accept that even the tiniest lost licensing revenue in those markets constitutes a “harm” that is judged to be determinative in the overall fair use analysis, then the rights of educators to use copyrighted works is diminished significantly. We’ll have to wait and see what the 11th Circuit does, but I hope it sees through this argument and upholds the decision of the lower court. 

Here we go again: latest GSU ruling an odd victory for libraries

My first thought when I read the new ruling in the Georgia State copyright lawsuit brought by publishers over e-reserves was of one of those informal rules that all law students learn — don’t tick off your judge.  From the first days of the original trial, the arrogant antics of the attorneys representing the publisher plaintiffs — Oxford University Press, Cambridge University Press, and Sage Publishing — clearly put them in a bad light in the Judge Evans’ eyes. Those chickens came home to roost in this latest opinion, especially where the plaintiffs are chided for having filed a declaration about what licenses were available for excerpts back in 2009, even after the Judge told them not to, since that information had not been introduced as evidence in the original trial.  All of that evidence was stricken, and the Judge based her new opinion on the evidence that was before her in that first trial.  I can imagine that the publishers might use that ruling as a basis for yet another appeal, but if they do so, they had better be able to prove that the evidence is genuine and reliable, and to explain why, if it is, they did not produce it at trial back in 2011.

But I have put the cart before the horse; let’s look at the ruling we just received from the District Court.  In case some have lost track, this case was originally decided by a 2012 ruling by Judge Evans that found infringement in only five of 74 challenged excerpts, and awarded court costs and attorney’s fees to GSU as the “prevailing party” in the case.  The publishers appealed that decision to the Eleventh Circuit Court of Appeals, which vacated the trial court holding in 2014, sending the case back to Judge Evans with a set of instructions on how to improve the fair use analysis for these challenged excerpts.  As has been noted many times before, the publishers lost nearly all of the big principles they had wanted to establish in the case; the Court of Appeals refuted most of the publishers’ arguments even as it did what they asked and vacated the first ruling.

Now, using the new fair use analysis directed by the Court of Appeals, Judge Evans has handed the publishers yet another loss.  One wonders how many times they will have to lose this case before they finally learn something about the state of copyright law today.  Still, this loss for the publishers is only the oddest sort of victory for libraries.

The new fair use analysis that Judge Evans uses is carefully designed for situations where the challenged use in not transformative; the non-transformative nature of the use means that the small portions used must be scrutinized very carefully, and it means that the fourth factor — the potential impact of the use on the market for or value of the original — gets extra weight.  It is very important to notice this fact, because it means that this analysis used by Judge Evans will not be applicable in many other situations, especially in academia, where the uses are, unlike with e-reserves, transformative.

Even though both the trial court and the Court of Appeals have held that e-reserves are not transformative, both courts have affirmed that the first fair use factor — the purpose and character of the use — will still favor fair use when that purpose is non-profit and educational.  So throughout this new decision, Judge Evans continues to hold that the first factor always favors fair use.

The analysis of the other factors has changed, however.  For factor two, the nature of the original, Judge Evans does not make a blanket assumption, owing to instructions from the Eleventh Circuit, but looks at the nature of each excerpt.  In most cases, she finds that informational matter is mixed with more individualized scholarly commentary, and the result is that this factor is usually neutral — neither favoring nor disfavoring fair use.  In the few cases where it counts against fair use, it has little impact (the Judge says this factor is only 5% of each decision).

In the same way, factor three now gets a more careful and specific analysis.  The 10% or one chapter rule that Judge Evans used in her first opinion is gone, at the instruction of the Court of Appeals.  Instead, Judge Evans looks at each excerpt and evaluates its appropriateness to the allowable purpose (from factor one) and its potential to substitute for a purchase of the book (market substitution, anticipating factor four).  In many cases, she finds that the excerpts are a very small number of pages and a small percentage of the entire work (so not a market substitute), are are also narrowly tailored to accomplish a specific teaching objective.  In those cases, this factor will favor fair use.

Factor four, which the Judge now believes should constitute 40% of the fair use decision in this particular situation, is where most of the action is in this ruling.  The analysis, the Judge says, is two-fold, looking at both harm to the potential market for the original and harm to the value of the work, which means looking at the importance of the licensing market.  About this latter source of potential value, the Judge says that she must decide “how much this particular revenue source contributed to the value of the copyright in the work, noting that where there is no significant demand for excerpts, the likelihood of repetitive unpaid use is diminished” (p. 9).  The result of this inquiry is that a lot of financial information about each book — its sales over time and the amount of revenue derived from the permissions market — is very important in the fourth factor analysis.  The charts for many of the books that reflect this information make for fascinating reading, and contain information I suspect the publishers would rather not have made public.  This is where it becomes most difficult for libraries to apply the analysis that Judge Evans is using, because the Court has access to information, and time to analyze it, that is not available to libraries as they consider e-reserve requests.  Still, I think it is important to note that the standard the Judge is using in this evaluation is pretty high and it is focused on value to the authors and to users:

[W]e must determine how much of that value (the value of the work to its author and the potential buyers) the implied licensee-fair users can capture before the value of the remaining market is so diminished that it no longer makes economic sense for the author — or a subsequent holder of the copyright — to propagate the work in the first place (page 8, quoting the 11th Circuit).

In other words, this analysis is opening up a significant space in the idea of market harm, which permits potential fair users to diminish the value of the work in question to some degree, as long as that reduction in value is not so steep as to discourage writing and publishing these academic books.  Licensing, in this analysis, is the remedy only for that kind of steep loss of value; it is not a mere right of the copyright holder to obtain all the value from the work that is possible.

Judge Evans applied this complex formula for fair use to 48 challenged excerpts.  It was only 48 because for 26 of the ones discussed in her original ruling she found that there had been no prima facie case for copyright infringement made out, either because the publishers could not show they held the copyright or because there was no evidence that any students had used the excerpt.  This part of the ruling was not challenged, so only these 48 fair use rulings had to be redone.  Bottom line is that she found fair use for 41 of the 48, and infringement only in seven cases.  As Brandon Butler points out in his discussion of the ruling, even that might overestimate the infringement, since it appears that the summary in the decision may list at least some instances of infringement that were actually found, in the specific analysis, to be fair use.

So this ruling, like each ruling in the case, is clearly a disaster for the plaintiff publishers.  Once again it establishes that there is significant space for fair use in higher education, even when that use is not transformative.  Nevertheless, it is a difficult victory for libraries, in the sense that the analysis it uses is not one we can replicate; we simply do not have access to the extensive data about revenue, of which Judge Evans makes such complex use.  So what can libraries do, now that we have this additional “guidance” about e-reserves from the courts?  I think there are two fundamental takeaways.

First, we should continue to do what we have been doing — making careful fair use decisions and relying on those decisions when we feel the use is fair.  While we do not have much of the information used by the Court in this latest ruling, we still do have the security provided by section 504 (c)3 of the copyright law, which tells us that if we make good faith fair use decisions we, as employees of non-profit educational institutions or libraries, are not subject to statutory damages.  This greatly lowers our risk, and adds to the disincentive to sue academic libraries that must surely stem from the GSU experience.  All we can do, then, is to continue to think carefully about each instance of fair use, and make responsible decisions.  We still have some rules of thumb, and also some places where we will need to think in a more granular way.  But nothing in these rulings need fundamentally upset good, responsible library practice.

The second takeaway from this decision is that we should resort to paying for licenses only very rarely, and when there is no other alternative.  The simple fact is that the nature of the analysis that the Court of Appeals pushed Judge Evans into is such that licensing income for the publishers narrows the scope for fair use by libraries.  To my mind, this means that whenever we are faced with an e-reserves request that may not fall easily into fair use, we should look at ways to improve the fair use situation before we decide to license the excerpt.  Can we link to an already licensed version?  Can we shorten the excerpt?  Buying a separate license should be a last resort.  Doing extensive business with the Copyright Clearance Center, including purchase of their blanket campus license, is not, in my opinion, a way to buy reassurance and security; instead, it increases the risk that our space for fair use will shrink over time.

[personal note — this will certainly be my last word here at the Scholarly Communications @ Duke site, and it is fitting that it deal with the Georgia State case, about which this site has seen so much commentary.  For the sake of continuing this conversation and including more discussants, I am also going to post this piece on the new group blog of which I am a part, IO: In the Open.  Apologies if the repetition is annoying to anyone.]

Moving into the open

Since it was announced that I will move shortly to the University of Kansas, several people have asked me if I intend to continue blogging, and have kindly encouraged me to do so.  This blog, of course, will remain one of the communication outlets for the Scholarly Communications program at Duke, and my Duke colleagues Paolo Mangiafico and Haley Walton, as well as others, will fill the space, I am sure, with interesting and worthwhile reads.

I do intend to keep blogging, however, at a different site and in a different format.  Over the past few weeks, some colleagues and I have assembled a great group of people interested in scholarship, publishing and libraries, and I am excited to announce a new, collective blog called IO: In the Open.

On this new site, this group of people will be writing about how scholarship and scholarly publishing is changing and can change in ways that better adapt to new technologies, needs, and economics:

Amy Buckland
Institutional Repository Manager, University of Chicago Library

William Cross
Director, Copyright & Digital Scholarship, North Carolina State University Libraries

Ellen Finnie
Head, Scholarly Communications & Collection Strategy, MIT Libraries

Patricia Hswe
Digital Content Strategist, Penn State University Library

Lisa Macklin
Director, Scholarly Communications Office, Emory University Library

John Sherer
Director, University of North Carolina Press

Sarah Shreeves
Associate Dean for Digital Strategies, University of Miami Libraries

Kevin Smith
Dean of Libraries, University of Kansas

Claire Stewart
Associate University Librarian for Research & Learning, University of Minnesota

Shan Sutton
Vice Dean, University of Arizona Libraries

The title of this new blog should not surprise folks.  It is born out of the conviction that scholarship should be open because…

Scholarship in the open is better business – it provides a clearer perspective on what it actually costs to produce articles, books and other scholarly output.

Scholarship in the open is better for libraries – it connects us more directly with our researchers and with the life entire life cycle of research. It improves our ability to disseminate the outcomes of research and get the materials they need into the hands of students, teachers and others quickly and efficiently.

Scholarship in the open pushes us towards better copyright laws — it encourages us to think about how copyright could better align with author incentives and reminds us that, because the reasons creators create are so various, the law needs more flexibility than it currently has.

Scholarship in the open is better scholarship – it can be read and evaluated by a much larger and more varied audience. It takes the initial process of evaluating works of scholarship out of the hands of a small elite, some of whom are ill-prepared for the task, and offers the potential for more diverse ways of measuring impact and providing more complete information for the hiring, tenure and promotion process.

Our first blog post at IO: In the Open, by Ellen Finnie of MIT, will focus on the vital issue of how we spend our money in libraries, and how we can think in broader terms about the value of scholarly resources.  Ellen’s post, with its interesting analogy to food-supply chains, will be published on IO within the next day or so.

I hope that the people who have followed Scholarly Communications @ Duke so faithfully over the years will also subscribe to IO: In the Open.  We believe you will find a interesting, committed and diverse set of voices there that will help shape the discussion of these issues in years to come.

If you follow this blog on Twitter (Twitter handle @klsmith4906), that account will also tweet out new post from IO: In the Open.  Or, you can follow our new IO Twitter account:  You can also subscribe directly to the IO: In the Open blog posts by using the widget on the side of the IO page.

Some radical thoughts about Sci-Hub

Radical, as I like to remind folks, means to get to the root of an issue (same derivation as radish).  So when I say I am offering some radical thoughts about Sci-Hub and the controversy it has generated, I mean that I hope to use the discussion to ask some very basic, “at the roots,” questions about copyright, not that I intend to shock anyone.

My radical thoughts have been prompted by the many very conventional reactions to stories about Sci-Hub, which collects academic papers using .edu proxies and makes them available without charge and in disregard of the rules imposed on distribution by the copyright holders.  These reactions have followed two predictable trajectories, with one group calling what the site and its founder Alexandra Elbakyan are doing civil disobedience.  Indeed, Ms. Elbakyan herself has apparently cited Article 27 of the U.N. Declaration on Human Rights as a justification of her project, which now host nearly 50 million articles.  On the other side of the debate are those who are shocked by this disregard of the law, and especially by the apparent willingness of some libraries or librarians to use Sci-Hub to obtain research materials for their patrons.  All this debate, by the way, has been provoked by a lawsuit against Sci-Hub brought by publishing giant Elsevier, a move which has predictably increased attention to the site.

One thing that has been particularly disturbing to me about the various statements expressing outrage over Sci-Hub is how focused they are on the values and opportunities of the developed world.  One comment I saw pleaded with librarians to respect the law and not to use Sci-Hub “just to save money.”  Such moralizing misses a couple of basic points, I think.  The first is that Sci-Hub seems directed at, and is certainly mostly used by, researchers and students in the developing world, where it is not merely a matter of “saving some money,” it is a question of finding any way at all to get access to scientific and medical research.  We tend to forget that a $30 paywall, while a mere inconvenience to those of us in the U.S. or Europe, can be an insurmountable roadblock for someone in Cambodia or Malawi who is trying to learn about a medical condition.

Another point about the righteous defense of “the law” in some of these comments is that laws come in different forms and carry different kinds of moral authority.  Lawyers distinguish, for example, between illegal acts that are “wrong in themselves” (malum in se) and those that are only “wrong because prohibited,” or malum prohibitum. ( there is a discussion of this distinction, for those with a sense of humor, in the movie Legally Blonde).  Copyright infringement is, of course, the latter; a violation of the law but not of any moral imperative.  Such a law merely enshrines a decision about the distribution of resources, and it can be changed without causing the collapse of human society.  Precisely the kind of situation where acts of civil disobedience to provoke discussion and change are most supportable.

This is where the radicalism comes in, when we look at what copyright law does, how it has been used over time, and what Sci-Hub is actually doing.  These questions were raised for me by the fascinating comment by Thomas Munro on this blog post, which is itself defending the idea of Sci-Hub as civil disobedience.  Dr Munro’s comment, the first that follows the post, points out that Sci-Hub is doing what U.S. publishers did for a long time — she is refusing to recognize copyrights granted by other countries.  Dr. Munro writes as follows:

What Elbakyan is doing – ignoring foreign copyright – was official US government policy for more than a century. As a result, books were much cheaper than in Europe and literacy skyrocketed. When the US finally caved, in 1888, the editors of ‘Scientific American’ thundered that “The extension of copyright monopoly to foreigners will enable them to draw millions out of the country” and that it would turn US customs officers into “pimps and ferrets for these foreigners”.
As one Senator said in voting against the bill: “An international copyright is simply a monopoly … what is known as protection, or taxing the people to make a few persons rich … It seems to me that there can be no excuse for carrying this restriction upon human knowledge.”

That the publishing industry thrived in the U.S. by ignoring copyright is a well-known but little discussed aspect of our history with scholarly communication.  Perhaps those early American publishers did not see themselves as practicing civil disobedience; they may have just been trying to maximize profits.  But their willingness to ignore foreign copyrights when it served what they believed was a more important purpose really does call us to the root of the matter.  Copyright law is an instrumentality, not a good in itself.  It’s role in our legal system is to encourage creativity and the production of knowledge.  When it ceases to do that it deserves to be challenged and changed.

I believe that copyright has a continuing role to play in the academy and in the reform of scholarly communications.  But we do no favors to that role when we treat copyright law as enshrined and inviolable,  as if it had been decreed from Mt. Sinai.  Instead we should focus on what the law is intended to accomplish, where and why it fails in its purpose, and how we can make it more adaptable for the digital age.  One key to a clearer assessment of copyright law is to know its history a little better, and in his blog comment Dr. Munro also offered us a pointer for that task —  a citation to a doctoral dissertation, now freely available an e-book:

Eric Anderson. (2010). Pimps and Ferrets: Copyright and Culture in the United States, 1831-1891.

I haven’t read Anderson’s book yet, but I am anticipating a more detailed and nuanced view of how copyright has been used and abused through the vicissitudes of American history.

Prognosticating about the new LoC

It is safe to say that President Obama’s  nomination of Dr. Carla Hayden to be the next Librarian of Congress drew rave reviews from the library community.  Most Librarians of Congress have been researchers and academics rather than professional librarians.   That tradition has worked well over the years, but times are changing quickly for libraries these days.  The technical, planning and business skills that come from years of daily service in a large library system, which Dr. Hayden has, seem more important than ever now.  Indeed, some of the problems the Library currently has could be attributed to neglect of the technical side of library work by the current Librarian, who clearly stayed in place too long.

So it is not a surprise that library organizations were quick to praise the nomination of Dr. Hayden, who is currently CEO of the Enoch Pratt Free Library in Baltimore.  As Inside Higher Ed tells us, Dr. Hayden is credited with improving the finances at Enoch Pratt and with new technological initiatives.  Just what the LoC needs.

It is also interesting to see that open access advocates have been equally pleased with this nomination.  Public Knowledge, for example, issued this statement welcoming the nomination.  The reaction from writer, blogger and open access advocate Cory Doctorow was a little less restrained, referring to Dr. Hayden as “a rip-snortin’, copyfightin’, surveillance-hatin’ no-foolin’ LIBRARIAN.”  And TechDirt notes that the President explicitly mentioned open access is his statement about Dr. Hayden.  As a reason for nominating a candidate for Librarian of Congress, support for open access is as unprecedented as is Dr. Hayden’s gender or ethnic background.

All this begs the question of what the chances are that Dr. Hayden will be confirmed.  Of course, she might encounter difficulties just because of the general dysfunction in Congress or because of a desire to obstruct anything the President thinks is a good idea.  Carla Hayden’s nomination may just be collateral damage in the ongoing conflict between the White House and Capitol Hill.  But let’s assume for a minute that the nomination does move through the process in Congress — it would be very unusual to see a fight over a Librarian of Congress, after all — and consider the possibilities.

One consideration would be the attitude of the groups that lobby on behalf of Big Content.  The RIAA issued this statement in support(?) of the nomination, which certainly seems to damn with faint praise.  In fact, Cory Doctorow reads this statement as evidence that the RIAA is afraid of Dr. Hayden.  Could it be that she might push the Copyright Office a little bit out of the embrace with Big Content that it has enjoyed in recent years?

This possibility points us to the real drama of the nomination, in my opinion (if drama is not too, well, dramatic a word to use).  The issue, anyway, is the effect that Dr. Hayden’s nomination might have on the efforts to move the Copyright Office out of the Library of Congress.  The reasons given for this effort, which I wrote about here and here, seem twofold.  The first is the fact that the LoC technical infrastructure has become out of date.  As I said in the earlier post, that is something we might expect a new Librarian to address, and it seems certain that Dr. Hayden would be well-placed to make those improvements.  So if that is the concern, it seems that her appointment should slow the momentum to make the CO an independent agency, or to move it to the Department of Commerce.

But statements regarding the idea of moving the CO also make some veiled references to a conflict of mission between the Copyright Office and libraries.  This can only refer to that trend toward the CO becoming a lobbying arm of the content industries, and that conflict — it is shameful, in my opinion, to admit publicly that the Copyright Office is not first and foremost dedicated to the public interest, as are libraries — is only likely to get worse with the nomination of Dr. Hayden.  So if we see foot-dragging and an unwillingness to act on this nomination, I think there will be more behind that inaction than just generic reluctance to accept this President’s nominations.  I think we will be seeing the quiet but firm opposition of the lobbyists from Big Content, who may be hard-pressed to oppose Dr. Hayden openly but will very likely want to sabotage the nomination in order to preserve their regulatory stranglehold over the Copyright Office.

Backing into the public domain

The last time I wrote about the lawsuit and subsequent ruling over the copyright status of “Happy Birthday To You,” I was trying to clarify that, in spite of media reports, the court had not declared “Happy Birthday” to be in the public domain; it merely said that Warner Chappell music was not able to demonstrate that they held the rights in the song.  In effect, the court ruling turned “Happy Birthday” into one of the very few judicially-recognized orphan works.

I was a little startled, therefore, to see headlines last week saying that a settlement in the case was asking the judge to declare “Happy Birthday” to really be in the public domain.  My first reaction was to wonder if a court can actually do that.  Public domain status is not actually defined anywhere in the law; it is, rather, an absence of copyright protection.  So the question that popped into my head was, if there is not sufficient evidence to determine whether or not there is copyright protection for the song, can a court just declare that any putative protection that might exist is simply void?  Can the court do a kind of quitclaim on copyright for a particular work?

A little more attention to the issue reminded me that this is not, in fact, what is happening (there is another story about the settlement, with a less dramatic headline, from the New York Times, here).  In fact, the Judge is being asked to approve a settlement document in which several of the parties in the case explicitly deny that the song is in the public domain, but agree to release any claims they may have.  They go on to state that they know of no other claimants who could assert ownership, so they believe that, with the release made by the settlement (assuming it is approved), “Happy Birthday To You” will be in the public domain.  So the “quitclaim” here is from the parties, as logic suggests it must be (see sections 2.2.1 and 2.2.2 in the settlement document linked above). But these portions of the settlement also contain a promise that the parties will not object to a declaratory judgment from the court, sought by the plaintiffs, that the song will be in the public domain as of the final settlement date.

In a conversation about this, some friends and I joked that we had found a new solution to the orphan works problem — just ask courts for declaratory judgments that no copyrights continue to exist in such works.  A court would not do that, of course, without at least having all the known possible claimants before it and willing to relinquish their claims.  And it is a risky strategy for any court, because in theory an unknown claimant could arise at a later date, and it is not clear what effect such a declaratory judgment might have on their rights, if they had evidence that supported their claim.  That is unlikely in most cases, and extremely unlikely in the “Happy Birthday” case, where all the potential claimants seem to be at the table.  Nevertheless, this result in a particular situation does not really offer a positive way forward for most orphan works.

If declaratory judgments are a poor way to address most orphan works because they attempt to adjudicate the rights of unknown parties who do not have a voice, the same might be said of the Copyright Office’s extended collective licensing scheme, which seeks to collect money on behalf of those unknown rights holders.  Such a plan would create a situation not unlike that which prevailed for years around “Happy Birthday” — users paying the wrong party for the right to use a work for which the real rights holder is unknown.

It seems clear to me that the best solution to the orphan works problem in many situations, including mass digitization of distinct and distinctive collections by libraries, is fair use.  The HathiTrust and Google Books cases pointed us in that direction in a way that this lawsuit over “Happy Birthday” cannot.  Nevertheless, that case does serve as a reminder, at least to me, of the variety of resources that courts have at their disposal that might address an orphan works situation.  Several common law doctrines used to preserve equity in property disputes come to mind — the doctrine of abandonment, for example, or even adverse possession.  Perhaps most useful would be laches, a common law doctrine that tells courts that they can refuse to hear a claim (usually in equity, whereas copyright claims are claims in law) if the party asserting its rights has “slept on” those rights, which is to say has unreasonably delayed or been negligent in enforcing them.

Courts have a great deal of space to deal creatively with disputes, which is one of the best things about our common law system.  Various doctrines have evolved over time that could help courts preserve fairness in a dispute over some use of an orphan work, presuming that a claimant comes forward at some point.  But the truth is that none of these fall-back positions are really needed in most cases because Congress gave us a statutory solution for this issue, although it is rooted in common law itself — fair use.

Steal this book?

Last week I was researching a copyright and fair use issue for a faculty member, and needed to see a copy of a book held by Duke’s Rubenstein Rare Book and Manuscript Library.  As I explained the issue and what material I wanted to use to the Rubenstein staff, a researcher sitting nearby listened intently. As soon as we finished, she told me that she was the President of the Authors Guild and that they were suing Google over fair use.  She began to explain to me why Google was wrong, but that the author for whom I was doing the research should be allowed to rely on fair use.  When I introduced myself as a lawyer and copyright specialist for the Libraries, the conversation came to a polite but stilted conclusion.

This week, however, I got a chance to see more fully what that researcher, whose name is Roxana Robinson and who was giving a lecture that afternoon in the Library, has to say about Google, in a column she wrote for the Wall Street Journal called “How Google Stole the Work of Millions of Authors” (behind a paywall).  Ms. Robinson, a novelist and biographer, unfortunately proves what I suspected at the time of our encounter, that her perspective on fair use is based on a preconceived idea about who are good users entitled to rely on fair use (authors) and who are bad, unworthy users (Google), rather than on an understanding of the careful legal analysis of specific uses that actually underlies these decisions.

The WSJ column employs some interesting rhetoric, starting with its title, which is clearly intended to provoke a visceral response.  Many people have noted that the language of theft and stealing is inappropriate when the issue is copyright infringement.  This point is made in great detail in William Patry’s book “Moral Panics and the Copyright Wars.”  As is true for most crimes, the definition of theft includes an intention, a mental state or “mens rea” that is a required element of that crime.  For theft this intention is “to deprive the true owner of [the personal property]” (definition from Black’s Law Dictionary, Seventh edition).  Because of the nature of intellectual property, copyright infringement never meets this definition; that is why the law has a different word — infringement — for the unauthorized taking of someone else’s IP.

So the headline of Ms. Robinson’s column is legally incorrect and intended, I think, to stir up her base rather than to make an argument that could sway the Supreme Court (for more on this point, see the rebuttal published in Fortune “Why the Authors Guild is Still Wrong about Google’s Book Scanning“).

The column also makes a couple of sardonic remarks about quotes that can be found using Google Books.  Here the argument breaks down pretty badly, because both of the quotes Ms. Robinson chooses, one from Shakespeare and one from Emerson, are in the public domain.  Her effort to be ironic seriously backfires here, because her own column is actually proving the utility of the Google Books database in a way that emphasizes its lawful use of PD texts.  Rhetoric has truly overcome logic.

It is worthwhile, nevertheless, to think a minute about the logic structure of the argument that what Google has done is infringement.  Ms. Robinson makes the point that there are many books that were scanned by Google, that Google is a profitable company, and that no authorization for the scanning was asked for or given by the authors of the works that were scanned.  All of this is true, of course, but it does not amount to an argument that Google has infringed any copyrights.  What is missing, at least as I see it, is any notice that the authors have been harmed.  The rhetoric of the column clearly tells us that the Authors Guild, and at least some individual authors who are involved in the lawsuit, are angry.  But it does not explain a fundamental element of any tort action — harm.

The two courts that have considered this case both found that there was no harm done here — no negative impact on the market for or value of the works in question, to use the language that is part of a fair use analysis.  Users cannot obtain any significant portions of books that are limited to snippet views; the AG’s own experts were unable to retrieve as much as 16% of any work using word searches and snippet results, and even that amount of text was randomized in a way that made reading a coherent piece of the work impossible.  The is just no evidence that any sales are lost due to this finding aid, and it is quite possible that sales will be gained.

There is, of course, the question of a licensing market.  But that is almost a silly question.  A market for licensing scans to create an index has never existed, and it is impossible to imagine that any of the authors had such an idea in mind when they wrote their works.  As Judge Leval said in his decision for the Second Circuit Court of Appeals, this is not really even a use of the work, it is a use of information about the work, for which a secondary licensing market simply is not appropriate.  Creating such a market would be revolutionary, and it would do much more harm to the overall environment for books and reading than anything Google could think up.  What the Authors Guild seems to be saying here is that Google should pay us for something we never thought we would or should get paid for, simply because they have a lot of money.  Perhaps when we recognize how weak that argument actually is it becomes understandable that Ms. Robinson relied on overheated rhetoric rather than legal or logical arguments.  But if the purpose of her essay is to convince people that the Supreme Court needs to take the case to right a serious wrong, it falls far short, and is unlikely to convince the nine citizens whose opinion on that issue matters the most.