Category Archives: Copyright Issues and Legislation

A new home for copyright?

The idea that the Copyright Office should move out of the Library of Congress was first raised some years ago by Bruce Lehman, who was, at the time, the Director of the Patent and Trademark Office.  The idea seemed to be that the Copyright Office should join the PTO as an agency within the Commerce Department.  That idea did not seem to be very well-received by many, and I had not heard of the discussion for a while.  But apparently the possibility of moving the CO is still kicking around, and last month current Registrar of Copyright Marie Pallante sent a letter about the topic to Rep. John Conyers, the Ranking Member of the House Committee on the Judiciary.  Her letter was requested after a hearing about the functions and resources of the CO held back in February.

Pallante’s letter makes interesting reading, especially if one is interested in the inside politics of Executive Branch appointments, separation of powers, and the like.  The bottom line, however, is that Registrar Pallante thinks that the Copyright Office should be separated from the Library of Congress, should not move into the Commerce Department, and should instead become an independent agency with its leader directly appointed by the President and confirmed by the Senate.  There has been some discussion about this letter and the ramifications of the debate among my colleagues, and I want to consider two issues that I think are of interest to a wider audience, while admitting that I am shamefully cribbing ideas from those colleagues.

The first issue is why the Copyright Office should leave the Library of Congress in the first place.  Registrar Pallante offers several reasons in her letter.  One is the claim that the Library of Congress is in a Constitutionally awkward position, since it is apparently an Executive branch agency (the Librarian is appointed by the President), but its functions, including advising Congress about copyright law, are at least partially legislative.  While I see the issue, it is not clear to me why it is more pressing for the CO than it is for other offices within the Library, including, for example, the Congressional Research Service.  Nor do I fully understand why making the CO an independent agency, with its head still appointed by the President, would solve this dilemma.  There is certainly an issue of prestige here, but I am not convinced that it is enough to justify a new Federal agency.

The other reason Pallante offers for moving out of the Library of Congress are the “operational challenges,” including staffing and pay.  All bureaucracies are difficult, of course, and rumor has it the LoC is more difficult than most these days.  But, again, it is not obvious that a new agency would necessarily be better.  Everything would depend on the personnel and the budget.  More troubling, however, are the footnotes in Pallante’s letter that refer to the “conflict of interest” between the CO and the Library, which apparently was mentioned by some witnesses during those February hearings.

Is there a conflict of interest between a library and the office that administers our national copyright policy?  If there is, what does that tell us?  To my mind, it suggests that our copyright policy has gotten out-of-line.  We may be developing an approach that sees copyright as a trade regulation that protects specific industries, not as a policy decision about how best to ensure the continuous creation of new works of knowledge and culture.

This concern was clearly raised during the hearings, where Rep. Zoe Lofgren challenged the assumption that the Copyright Office was no longer a good fit with the Library of Congress by suggesting that over the years, the librarians have been better at understanding copyright than some staff at the CO.  To her credit, in her letter Pallante does not endorse the idea of moving the CO to Commerce, where the symbolism of copyright as a sort of trade regulation would be even stronger.  But I would argue that our predecessors knew what they were doing when they centralized copyright services inside the Library of Congress.  Libraries epitomize the social benefits that copyright is supposed to support, and the “optics” of moving the Office, at least, would inevitably undermine that long-standing commitment to the public good.

In fact, if the CO was located in the Commerce Department, as my colleague Brandon Butler points out, it would have to consider all aspects of commerce related to copyright, including those industries that depend on fair use and other copyright exceptions.  The wrong-headed narrative about the competition between the content industry and the technology sector, with the former held up as copyright dependents and the latter as modern-day pirates, would be harder to sustain.  The unfortunate possibility exists that the CO’s desire for independence represents a desire to become even less balanced in its approach than it has been in the past, focusing entirely on its perceived role as enforcer of rules that protect Hollywood from the threatening innovations of Silicon Valley.  An office in the Commerce Department would be less able to take sides.

In terms of rationale and purpose, the Library of Congress is a good fit for the Copyright Office, even if the CO does not, under its current leadership, recognize this.  If a new home is really necessary, Butler makes the wonderful suggestion that the Department of Education should be considered.  The DoE, more than Commerce and maybe even more than the Library of Congress, could refocus copyright policy on the reason we have these laws in the first place — to promote the progress of knowledge and science.  If we lose track of that purpose, it becomes an open question whether we need the law or the CO at all.

Listening to Lessig

Like many other attendees, I was pleased when I saw that the closing keynote address for this year’s Association of College and Research Libraries Conference was to be given by Professor Larry Lessig of Harvard.  But, to be honest, my excitement was mingled with a certain cynicism.  I have heard Lessig speak before, and I am afraid I worried that I would be listening to essentially the same lecture again.

My suspicion was not wholly unwarranted.  In part I think it is the fault of Lessig’s instantly recognizable lecture style.  It is energetic and entertaining, but because its rhythms and conventions are so idiosyncratic, I think it may flatten the message a little bit.

In any case, I sat down in the ballroom of the Oregon Convention Center on Saturday with somewhat mixed expectations.  But what I did not expect was for Lessig to begin his talk by acknowledging that all his public lectures were really the same.  Had he read my mind?  No, his point was a little different.  Over the years, he told us, he has had three major themes – political corruption, net neutrality, and copyright/open access.  But, he told his audience of attentive librarians, those three themes are fundamentally just one theme.  Each is about equality.  Not three themes, but only one — equality.  Equality of access to the political process is the heart of his current campaign against the corruption of our political system by the endless pursuit of money.  Equality of access to the means of communication and culture is key to the fight for net neutrality.  And equality of access to knowledge is what animates the open access movement.

So it turns out that my worry, prior to the talk, was both unfair and, in a sense, correct.  All Lessig’s lectures are very much the same, because the underlying value he is asking us to focus on is the same.

Thinking about this unity-behind-diversity in the messages about political corruption, net neutrality and open access set me thinking about the way my colleagues and I frame our advocacy for the last of those items, open access to scholarship.  Our messages, I think, tend to focus on incremental change, on the benefits to individual scholars, and on not rocking the academic boat too much.  Lessig reminded me that there are good reasons to rock a little bit harder.  Publishing in toll access journals and neglecting open access options or additional means of dissemination is not just short-sighted.  It is dumb, and it is harmful.  We need to say that occasionally.

Publishing exclusively through closed access channels is dumb because it ignores huge opportunities available that can, quite simply, make the world a better place.  And such publishing fails to take full advantage of the greatest communications revolution since the printing press.  Indeed, online toll-access deliberately breaks network technology in order to protect its outmoded and exclusionary business model.  Doing this is simply propping up the buggy whip manufactures because we are afraid of how fast the automobile might travel.  The academy is not usually this dumb, but in this case we are wasting vast amounts of money to support an obsolete technology.  I know that the promotion and tenure process is often cited as the reason for clinging to the old model, but this is simply using one outdated and inefficient system as an excuse for adhering to another such system.  Traditional modes of evaluation are breaking down as fast as traditional publishing and for the same reasons.  Hiding our heads in the sand is no solution.

More to the point, however – more to Lessig’s point – is the fact that this traditional system we are so reluctant to wean ourselves from actually hurts people.  It fosters ignorance and inequality.  It makes education more difficult for many, retards economic progress, and slows development worldwide.  As academics and librarians who by inclination and by professional responsibility should be committed to the most universal education possible, it is shameful that we cling to a system where only the rich can read our scholarship, only the privileged gain access to the raw materials of self-enlightenment.  How can a researcher studying the causes and treatments of malaria, for example, be satisfied to publish in a way that ensures that many who treat that disease around the globe will never be able to see her research?  How can an anthropologist accept a mode of publishing that limits access for the very populations he studies, so they will never be able to know about or benefit from his observations?  Why would a literary scholar writing about post-colonialist literature publish in a way that fosters the same inequalities as earlier forms of colonialism did?

In this wonderful column from Insider Higher Ed., the ever-insightful Barbara Fister writes about what we really mean when we talk about serving a community, and what we might mean by it.  She comments on the “members-only” approach to knowledge sharing that has become an accepted practice, and challenges us to rethink it.  Like Lessig, Fister is calling us to consider our core values of equality and the democratization of knowledge.  She also reminds us of how dumb – her word is wasteful – the current system is.

Perhaps the most vivid example of how subscription-based publishing fosters, and even demands, inequality is found in the ongoing lawsuit brought against a course pack publisher in India by three academic publishers.  Two of the “usual suspects” are here – Oxford University Press and Cambridge University Press (joined, in the Delhi University suit, by Taylor and Francis) – and this lawsuit is even more shameful than the one brought against Georgia State.  The problem, of course, is that the books published by these modern-day colonialists are too expensive for use in India.  I once was told by a professor of IP law in India that a single textbook on trademark law cost over a month’s salary for his students.  Photocopying, whether it is authorized by Indian law or not (and that is the point at issue) is a matter of educational survival, but these publishers want to stop it.  Their rule – no one should ever learn anything without paying us – is a recipe for continued ignorance and inequality.  It is disgraceful.

I use the word colonialists in the paragraph above quite deliberately.  What we are seeing here is the exploitation of a monopoly that is imposed on a culture with the demand that people pay the developed world monopoly holders in order to make progress as a society.  We have seen this too many times before.

The thing I like best in the article linked above – the whole thing is well worth a careful read — is the brief story of how a student group in India began handing out leaflets about the lawsuit at a book fair where CUP representatives were hawking their wares.  They wanted to let people know that buying books from Oxford and Cambridge is supporting a worldwide campaign of intimidation that is aimed at reducing access to knowledge and culture.  Publishing with these presses is a form of colonial occupation that extorts from whole populations a high price to obtain the means of cultural and intellectual growth.  The reaction, of course, was predictable; the publisher summoned the police to protect themselves and others from these unpleasant truths.  But the technique has merit; perhaps we can also find ways to shame these publishers when they attend our academic or professional conference, when they send salespeople to our campuses, and when they recruit our colleagues to write and review for them.  A commitment to equality demands no less.

Copyright, Open Access, and Human Rights

The United Nations Human Rights Council is holding its 28th session this month, and one item on the agenda is discussion about a report from Farida Shaheed, who is a “Special Rapporteur” in the area of “cultural rights.”  Ms. Shaheed is a well-known Pakistani sociologist and human rights activist.  Her report is a remarkable document in many ways, with a lot of things to like for those who are concerned about the overreach of copyright laws.  There are also some points that are troubling, although, on balance, I would love to see this report get attention and action from the U.N.

In some sense, the most remarkable thing about this report is its frank recognition that intellectual property laws are in tension with the fundamental human right of access to science and culture. In only its third paragraph, the report reminds us that since at least 2005, the World Intellectual Property Organization, a U.N. agency, has been mandated (whether effectively or not) to give “renewed attention to alternative policy approaches to promote innovation and creativity without the social costs of privatization.”  In short, the WIPO is charged, whether effectively or not, to find ways to facilitate open access to science and culture.  This charge is made explicit in the recommendations, where the Special Rapporteur directly suggests that “[p]ublic and private universities and public research agencies should adopt policies to promote open access to published research, materials, and data on an open and equitable basis, especially through the adoption of Creative Commons licenses” (para. 113).

When librarians and other open access advocates discuss OA policies with their faculties, perhaps we should recognize that there is a compelling argument to be made that this is not just a “what’s best for academia and for my interests” issue, but a true human rights issue.  Ms. Shaheed’s report makes this case in a concise and compelling way.  And this point also reminds us of why open access that is achieved simply by paying the commercial publishers to release articles is not a solution, because it does not really promote equitable access.  The fees charged are too high for many authors, they are not administered in a transparent way, and, frankly, some of the publishers cannot be trusted to fulfill their end of the bargain.  Barbara Fister discussed some of these problems in more detail in her recent Inside Higher Ed blog post, called “New Predatory Publishing in Old Bottles.”  If we take open access seriously as a step toward a more democratic and equitable culture, we must embrace a wider variety of “flavors” of OA, and not assume that the “usual suspects” can do it for us.

To return to a reading of the Human Rights Council report, there are strong endorsements of the idea that cultural and scientific development depends on restraining the reach of IP protections.  The section on “Copyright policy and cultural participation” is structured around three themes that all begin with “promoting cultural participation through…” and then go on to discuss copyright limitations and exceptions, international cooperation, and open licensing.  Here are some specific recommendations that I found very encouraging:

  • In regard to negotiations that are already underway, the report endorses ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Disabled, or Otherwise Print Disabled.  On the other hand, Ms. Shaheed expresses concern (para 19) about the Trans-Pacific Partnership Agreement that is currently being negotiated in secret, which is the problem that the report focuses on, calling for all such multinational agreements to be discussed in a transparent way (para 92).  Since the TPP is often defended with the claim that it will benefit developing countries, it is fascinating to see it cited as an example of a “democratic deficit in international policy making.”  From a different article, this editorial about the TPP by a U.S. Senator raises the same type of concern, and together they make a strong case against the agreement.
  • In paragraph 22 the report discusses the potential that a pervasive licensing environment can inhibit artistic self-expression and slow cultural development.
  • The report calls for the adoption of international treaties on copyright limitations and exceptions for libraries and education.  Given the current climate in the WIPO, this seems like a long shot, but is valuable in part because it calls attention to that climate, which is dominated by representatives of commercial interests (including, unfortunately, the U.S. Trade Representative).
  • On the issue of copyright limitations and exceptions, the report specifically points to fair use as a tool for allowing a more “comprehensive and adaptable” approach to unlicensed uses (para 73).  The report notes that most countries take the route of adopting exceptions for specific types of use, which provides more certainty, but adds that that approach may be inadequate in the current environment.  In general the report calls for a flexible approach to “uncompensated use of copyrighted works , in particular in contexts of income disparity, non-profit efforts, or under-capitalized artists” (para 106).  It specifically asserts, in this regard, that member states should not take a rigid approach to the so-called “three-step test” for copyright exceptions that is found in the Berne Convention (para 104), which is often used as a weapon by commercial interests against broadly applicable exceptions.
  • One of the recommendations I like best in this report, found in paragraph 107, is that states should enact laws that would prevent copyright limitations and exceptions from being overruled by contractual provisions, and protect such exceptions from excessive technological interference as well.  The UK has recently adopted the contractual part of this idea, stating that certain uses that are allowed by the law cannot be prohibited by contracts.  As I have said before, this is an idea we need to incorporate into U.S. copyright law, and it is good to see the U.N. special rapporteur endorse it so firmly.

There is an overall emphasis in the report that focuses on copyright as an authors’ right, and it is this focus that gives me some ambiguous feelings about the document.  On the one hand, I agree that a focus on authors and supporting authorship will help re-balance our approach to copyright.  Where we have most often gone wrong in this area is when we have allowed copyright discussions to focus on supporting the business models of intermediary organizations, regardless of whether or not those models really helped incentivize authors and creators.  Throughout its history, copyright has been called an authors’ right and treated like a publishers’ privilege.  Re-focusing on authors is part of restoring copyright to its proper function, and makes sense in a document about human rights.  And yet, it is also true that too much stress on author rights can also become unbalanced.  Copyright cannot benefit society unless it weighs the rights of both users and creators, especially since the former often aspire to become the latter.  Authorial control is an important part of the creative incentive, but it can easily go too far.

One troublesome area where this is a real danger is protection for “traditional knowledge and traditional cultural expressions” — the cultural creations of indigenous peoples.  This is an area where there have certainly been abuses, and it is not surprising to find a concern over TK and TCE, as the international community abbreviates them, in a report about IP and human rights.  Unfortunately, protection for these cultural products raises as many problems as it does solutions.  Should there be a public domain for TCEs?  If not, why not?  And who is the legitimate rights holder in traditional knowledge?  The national government?  In an article back in 2011, David Hansen explored some of these issues and found real incompatibility between traditional knowledge protections and the values that animate IP law.

So my final attitude toward this report is mixed, but still strongly positive.  I think it recommends many of the right steps toward restoring copyright and other IP rights to their proper scope and function.  It rightly places the focus on authors and on economic and cultural development.  It reminds us that all high-level copyright conversations should have a human rights perspective.  Where I have concerns, I see a chance for continued conversation.  But at least those conversations would take place with the proper grounding, if the report is taken as seriously as it deserves.

In the GSU case, the wheels keep turning

NB — An embarrassing correction — the motion discussed below was actually filed by the plaintiffs, the publishers, not by GSU.  So this does look very much like the publisher intent is to go forward with new proceedings in the District Court.  And speculation below about what GSU intends is misplaced.  Sorry, folks.

Spurred by this error, I have uploaded the motion, so interested readers can see it here

Before I get way down in the weeds to describe a new development in the GSU case, I want to tell readers about a wonderful new article about the case, still in draft form here on SSRN, by Brandon Butler, lately of the ARL and now at the George Washington College of Law at American University.  This is a clear and concise summary of where we are regarding educational fair use after the Court of Appeals ruling that reversed and remanded the GSU case.  It also is as good a set of “instructions” as I have seen for how we can move forward with fair use in the academy; I hope many of you will read it.

And, now, for those who enjoy the more arcane aspects of our law, the latest on that very case.

When last we heard from the Georgia State University copyright infringement lawsuit, the publishers were facing a decision — should they appeal to the Supreme Court, try to settle the case, or let the case go back to the trial court for further proceeding in light of the Court of Appeals ruling?

I have no insight into what is going on in the minds of the plaintiff publishers, or those who are instructing them; all I can say is that I don’t think they have yet filed with the Supreme Court for a Writ of Certiorari.  But because of a filing made in the District Court last week, we do now know something about what GSU is thinking, and it seems they are preparing for reconsideration of the case by Judge Orinda Evans.

On February 24, right in the middle of Fair Use Week, GSU filed a motion in Judge Evans’ court to “reopen the record on remand.”  When a case is appealed, the trial court “certifies” the record and sends it up to the court that will hear the appeal; that is, the lower court attests that the materials sent to the Appellate level are complete and accurate.  Now the case has been sent back to that trial court, and GSU wants to reopen the record — the documentary evidence in the case — so that Judge Evans would base any new opinion on the most up-to-date evidence.

At the root of this request is the fundamental fact in this case that Georgia State, as a state university, cannot be sued for money damages because of sovereign immunity.  In other words, they cannot be assessed a fine by the Federal courts for past actions. Early in our nation’s history, we decided that we did not want to give the Federal courts that kind of power to reach into state treasuries and redistribute taxpayer money.  So all that a plaintiff suing a state university can hope for is an injunction — a form of order from the court that tells the defendant to stop doing something in the future.  There is no looking back at past wrongs when sovereign immunity is in play; only the potential for future violations of the law can be addressed.  This is an exception to sovereign immunity from a Supreme Court case called Ex Parte Young, and it is supposed to be followed quite strictly.

Those paying close attention may recall that this single-minded focus on the future came into play earlier in the GSU case, when the Regents of the University of Georgia system adopted a new copyright policy.  At that time, GSU successfully argued that only actions taken after the new policy was adopted should be considered by the court, since any injunction could only address future actions, which would be governed by the new policy.  The trial court agreed, and the case was tried over specific excerpts from books published by the plaintiffs that were used in the GSU e-reserve system after the new policy was adopted.

Since the trial, however, the GSU policy has changed again. Specifically, the Regents acted to incorporate into that policy the instructions given them by Judge Evans, who found a couple of flaws in the original form of the new policy.  So once again, GSU is asking that they be judged only on the current state of practice, which is the appropriate context for an injunction (which always looks forward).  They are asking that the record be reopened so that, in her reconsideration of the case, Judge Evans would evaluate only excerpts used in GSU’s e-reserves since the original trial and the subsequent amendment of the copyright policy.

If this motion is granted, and it makes sense both under the legal rule of Ex Parte Young and the past history of the case, the publishers would have to look at more recent semesters than were the subject of the original trial, and see what excerpts, if any, from works they own were used for e-reserve after the 2012 ruling.  If they find any that they think are infringing, it would be those materials, rather than the “original” 75 excerpts, that would be the subject of Judge Evans’ reconsideration.

In short, GSU is asking that those “further proceedings consistent” with the Court of Appeals ruling, be focused on a new set of excerpts, ones used by the GSU faculty since the copyright policy was last revised.

If the motion is granted, the new proceedings in the trial court would have a very different look.  There would not necessarily be a new trial, but at least the Judge would have to reconsider her approach to fair use based on what the Court of Appeals has told her, and then apply that revised approach to a different set of readings.  It seems clear that GSU believes that this would improve the chance that she would still find lots of fair uses.  Perhaps they are more confident that the revised policy is being followed and, since it was revised based on the Judge’s instructions, it will still pass muster with her.  Perhaps GSU has been careful not to use many, or any, of plaintiffs’ works since the trial.  And, perhaps, this is a gambit in settlement negotiations.

I will be anxious to see how the Judge responds to this motion, if the case reaches the point for her to rule on it.  I suspect that the publishers will see this request as a kind of trickery, designed to pull the rug out from under them and fight the case on new terrain.  But they knew the boundaries when they sued a state institution, or at least they should have.  From another perspective, this motion reflects an attempt by GSU to be consistent, and even to act with integrity.  If they believe, as I think they do, that they have tried at every turn to employ fair use as it has been clarified for them by the courts, this is nothing more than a plea to be judged on their current understanding and current practice, which seems very fair and appropriate.

 

 

 

After another defeat, what will GSU publishers do in 2015?

Back in October the 11th Circuit Court of Appeals issued its ruling in the Georgia State copyright infringement suit brought by three publishers and the Copyright Clearance Center to try to end reliance on fair use for course readings that are digitized and made available to students in a closed online forum.  As has been widely reported, that decision looked like a win for publishers, in that it vacated the lower court decision that largely favored Georgia State University, and it remanded the case back to the District Court for further proceedings.   But what looked like a win was very dissatisfying to the publisher plaintiffs — Cambridge University Press, Oxford University Press and Sage Publishing.  In the course of the opinion, all of the radical changes to copyright law that they hoped to advance with the lawsuit – the imposition of the 1976 Classroom Copying guidelines as a maximum limit rather than a safe harbor, the idea that the copy shop cases involving commercial course packs were appropriate precedents for in-house electronic reserves, a move from analysis of individual claims of fair use to a comprehensive impact analysis, and a statement that non-profit educational use did not necessarily favor fair use — were rejected by the Court of Appeals.

The publishers were very unhappy with this decision, even though it gave them the outcome they desired in the specific conflict.  They are looking for a radical realignment of fair use; the actual case is relatively unimportant, I think, compared to this desire to change the landscape so that many more licenses for educational institutions would be required.  So they asked the entire 11th Circuit to rehear the case (en banc) instead of letting the decision of the usual three judge panel stand.  Their petition for rehearing is a wish list of the principles they would like to have govern copyright in academia, which, of course, all point to paying those publishers more money.

On Friday the 11th Circuit rejected this petition for an en banc rehearing, as well as the petition for rehearing filed by GSU.  The Court did not comment on the rejection; they simply denied both petitions, thus leaving the opinion of the Appellate panel as the Court’s final word on the case.

For libraries, this means we are still in the uncertain and murky position I describe back in October.

For the publishers, there are a dwindling number of options left for them:

  1. They can petition the Supreme Court to hear the case.  This is really the only option that is available if the plaintiff publishers still want to fight for the ridiculous arguments they have been championing throughout the six and a half years of this lawsuit, so I will not be surprised if they do this.  I am sure the lawyers representing the publishers are advocating for this; so is the Copyright Clearance Center, in all likelihood, and they are paying the bills.  But the Supreme Court accepts only a tiny fraction of the cases they are asked to consider — the number is less than 4% of cases for which the petitioner has paid the usual filing fees (it is much lower for cases submitted where the plaintiff, usually a prisoner, claims that they cannot pay the costs).  The cases the Supreme Court is most likely to accept are those where there is a split of opinions among the different Circuits of the Court of Appeals, and that is not the case with the GSU opinion.  So this is a long shot for the publishers, but their only option now if they hope to save any of those principles that they have gone to war to establish.
  2. They can seek the rehearing by the District Court that is the point of a remand from the Appeals Court. That hearing must be “consistent” with the analysis in the 11th Circuit ruling, so it is not likely to gain much for the publishers.  The best they can hope for here would be a slightly tighter e-reserves policy at GSU that they could wave under the noses of other universities.  But that would be a victory for them that would feel an awful lot like a loss.
  3. Finally, they could settle the case.  This would be the rational approach, but the plaintiff publishers (or those who are calling the shots for them) have shown little taste for reasonableness.  They have poured a lot of money into fighting to undermine fair use for education, and settling now is probably less sensible, from their perspective, than it would have been months or years ago.  And, to be honest, GSU has little to gain from a settlement at this point; they might just as well wait for further proceedings in the District Court.  A settlement earlier in the case might have given the publishers a lever to use in negotiations with other institutions, but that opportunity faded when the 11th Circuit rejected all of those principles that the publishers were after.  Now they have a much weaker hand.

Overall, I think we will see a petition for a Writ of Certiorari, which is what you file to ask the Supreme Court to consider your case.  I doubt it will be granted, but I expect that 2015 will be a year of tilting at windmills for the publishers in this case.

Does copyright provide shade against Sunshine laws?

There are many situations in which the application of fair use is vitally important.  Educational uses are paramount, of course, and the law of fair use was clearly written with them in mind.  But right up at the top of the list, along with education, should be protecting free speech and supporting governmental transparency. This last value, however, has been put in some doubt by a decision back in August by the Missouri Court of Appeals.  The question, which has arisen in several recent court cases, is whether copyright can be used by a state university to avoid releasing materials that have been requested under the state’s freedom of information, or “Sunshine” laws as they are often called.  The laws are intended to shine light on the workings of government, and these situations where copyright is asserted to prevent the release of records threaten a novel method by which government agencies can avoid public scrutiny.

The cases have been brought by an organization called the National Council on Teacher Quality, or NCTQ, which advocates for tougher evaluation standards for teachers and is sharply critical of many teacher education programs.  The NCTQ has sent requests under numerous state Sunshine laws asking for the syllabi used in various teacher education courses at state universities, and that is where the copyright cases have arisen.  In at least two states the university and/or a teachers union has sought to prevent the release of the requested syllabi by asserting that such documents are the copyrighted property of individual faculty members and that the Sunshine laws do not permit the state to release material when doing so might infringe copyright.

I am coming at this issue slightly backwards, because I was alerted to it by a report in the Chronicle of Higher Education  when, earlier this month, the Missouri Supreme Court upheld a decision refusing to release the syllabi because they were protected by copyright.  That decision, handed down in August by the Missouri Court of Appeals, was something of a shock to me; the reasoning is so bizarre and it seems to try so hard to misconstrue the arguments made by the NCTQ that I can only conclude it is result-driven.  That is, the court decided what it wanted to do and then contorted the law to achieve that outcome.  I want to walk through some of the oddities of this decision, then look briefly at a case from Minnesota, decided a year earlier, in August 2013, and pointed out to the Missouri court, that got the situation right, in my opinion, recognizing that fair use can prevent state entities from using copyright to shield themselves from sunshine laws.

Those other cases provide the first illustration of the oddity of the Missouri decision.  The Court of Appeals was presented with several previous cases from other states where copyright was held not to prevent release of materials that were otherwise subject to Sunshine laws.  But the Missouri panel declined to acknowledge those precedents — they were not obligated to do so, to be sure — by arguing that those rulings had never found that copyright “had no application” in such cases.  But that is not what the NCTQ had argued; they offered the precedents to show that copyright had not, in the past, been permitted to shield the government from disclosure.  The Missouri Court of Appeals misconstrued the point and then, based on this misunderstanding, dismissed the cases and did exactly what it had been warned against — turned copyright into a defense against open government.

Later on in the decision there is another instance where the court again appears to willful misunderstand the NCTQ’s arguments in order to get to its desired goal.  When the NCTQl argues that syllabi are widely distributed already, the Court of Appeals claims that this is an argument based on privacy concerns and, as such, inapplicable to a case about copyright.  But it is clear that the NCTQ is arguing a copyright point related to the “market” for syllabi and the potential for harm (minimal) that would result from handing them over for NCTQ research purposes.  In short, this is part of a fair use argument, to which I will return below.

But first we should note one more oddity in the Missouri case, which is not the fault of the Court — the fact that the copyright ownership of the syllabi was never disputed.  Apparently both sides conceded that the faculty members were the copyright holders.  It might have been a better strategy for the NCTQ to raise the issue of work made for hire here and try to claim that the University, an arm of the state, was the copyright holder and therefore not entitled to use its own copyright to impede disclosure under the law.  Apparently the mutual concession on this point was based on the policy at the University of Missouri which said that faculty held their own copyrights, but this policy could easily be challenged (as most such university policies could) on the grounds that they do not meet the standard of “a written instrument signed by [the parties],” which is what the copyright law requires to return a work made for hire to individual ownership.

So here we have a situation where syllabi are widely distributed but, when requested by a private organization with an undeniably political agenda, are held to be the copyrighted property of individual faculty members and therefore excluded from Sunshine law disclosure because they are “protected from disclosure by law.”  This is clearly a ruling that effectively destroys the Sunshine law in Missouri, since most everything requested under it will be the copyright-protected property of someone.  Maybe in a later ruling the courts could make it clear that copyrights held by the state itself do not justify withholding materials from disclosure, but this case does not say that.  And even if that is the state of the law in Missouri, this ruling provides a huge loophole in the Sunshine law that clever agencies will surely find multiple ways to exploit. Such a situation cries out for a comprehensive fair use analysis, and yet the Missouri Court of Appeals declines to undertake one.

Three reasons are advanced by the Court to explain why fair use is unavailing to protect the Sunshine Law from being gutted by copyright claims; all are unavailing, in my opinion:

  1.  First, the Court of Appeals claims that, as a state court, it “lacks authority” to consider the effect of the Federal copyright.  This is clearly nonsense.  State courts regularly consider questions of Federal law when necessary to resolve an underlying state law issue.  The Minnesota case that was pointed out to the Court of Appeals is exactly such an example, which the Missouri panel chose to ignore.  It should be obvious that when the Sunshine exception refers to prohibitions by law, that necessarily means that the state courts will have to deal with Federal laws, and, in fact, the state court here does consider the impact of Federal copyright law.  It just draws up short at the idea of considering fair use.
  2. The Missouri Court of Appeals also asserts that it cannot consider fair use because there is no case of actual infringement before it, and fair use is an affirmative defense that is raised only after a prima facie case has been presented.  This is a silly excuse in the context.  For one thing, the law clearly tells us that fair use is a right, which, like most rights, functions as an affirmative defense in many situations.  But even more fundamentally, the Court of Appeals is agreeing to the claim that the University of Missouri does not have to disclose syllabi because doing so would involve it in potential copyright infringement; how is it possible to then decline to consider the applicability of a potential defense to copyright infringement as part of its analysis?
  3. The Missouri Court of Appeals gets involved in a convoluted consideration of who would be able to assert fair use in this situation, and appears to throw up its hands in despair.  On the one hand, the Court asserts that it cannot consider fair use because it does not know what the use is that NCTQ will make of the syllabi that might be turned over to it.  But, on the other hand, the Court accepts the University’s argument that it is not trying to enforce faculty member’s copyright — which it would not have standing to do — but is merely protecting itself from committing infringement.  So why is fair use not applicable to the University’s use, an argument the Court rejects without much clear reasoning?

The Missouri decision is, in my opinion, one of the worst considered decisions I have ever seen; a colleague told me that even after being warned about it, it caused her to gasp in surprise and, I suspect, horror.  The ruling is made that much worse because the Court had before it an example of how the situation should have been handled, in the case of NCTQ v. Minnesota State Colleges and Universities, which was decided a year earlier and which got all of the issues raised above right where Missouri struggled to find a way to get them wrong.  There is a report on the Minnesota case available here.  Quite simply, the Minnesota Court of Appeals found that it could, and indeed must, consider fair use when faced with exactly the situation that the Missouri court got so wrong.  In Minnesota they decided that fair use clearly applied to allow a state institution to make and distribute the  the copies needed to comply with the Sunshine law.  It further held that the University could not resist compliance with the State’s open-records law based on a speculative future infringement that might occur when the materials were in the hands of the NCTQ.  In short, Minnesota decline to make copyright into an expansive shield that undermines the key values expressed in open records laws, which is exactly what Missouri did allow.

Fair use exists to prevent the copyright monopoly from undermining key democratic values.  It supports education and free speech precisely because these are key components of a democratic system.  So is transparency in government, and the deeply unfortunate decision made by the Missouri Court of Appeals allows copyright to defeat the intent of the Missouri Sunshine law precisely because it does not recognize that this is a key place where fair use should do its important work.

Going all in on GSU

On Friday the publishers who are suing Georgia State University for allegedly infringing copyright by scanning short excerpts from academic books to provide students with access through electronic reserves and learning management systems filed a petition for a rehearing by the entire Eleventh Circuit Court of Appeals.  As most will recall, the panel of the Eleventh Circuit essentially did what the publishers wanted — reversal of the lower court judgment — but the appeals panel denied those plaintiffs most of the principles by which they hope to radically reshape copyright law.  The publishers clearly understand that, whatever they can gain from additional lower court proceedings on remand, they will not get what they wanted when they brought the lawsuit.  The panel ruled that the first fair use factor favors an educational, non-profit use even if the use is not transformative, that an item-by-item analysis is appropriate, and that it matters in the fair use analysis whether or not a license for digital excerpts is available.  The publishers have decided they cannot live with these conclusions, so they have asked that those specific issues be reconsidered by the entire Eleventh Circuit court.  Their “petition for en banc rehearing” lays out their arguments.

GSU also has filed a petition for rehearing.  They are seeking some corrections to inaccurate statements about what list of alleged infringements was considered by the lower court, as well as a ruling that the risk of market harm from electronic reserves is a question of fact that the lower court should be instructed to consider.  That risk, GSU argues, should be proved; it is not something the appeals panel should have presumed.

It is important to understand there is little chance that these petitions will be granted.  When a case is appealed from the lower court to a Circuit Court of Appeals, we call that an “appeal as of right.”  That is, that first appeal must be heard by an appellate panel.  But thereafter, all subsequent appeals are discretionary; the court does not have to actually take the case, it has the option to deny the petition.  Most people are familiar with the idea that the Supreme Court actually reviews only a tiny percentage of the cases for which it receives a petition for a hearing.  Besides asking for Supreme Court review, the other option, after losing (or feeling like you lost) an appeal in front of a Circuit panel, is to ask that the entire group of judges in that Circuit reconsider the case.  Like Supreme Court petitions, these petitions for en banc rehearing are rarely granted.  In fact, the Federal Rules of Civil Procedure explicitly say that petitions for rehearing are “not favored and ordinarily will not be granted”  (FRCP 35(a)).  For more information about these post-appeal options, interested readers should see this article from the law firm Reed Smith.

So does the petition from the publishers stand a chance?  There are two reasons a petition for rehearing might be granted: when there is a split within the courts of the Circuit or when a “question of extraordinary importance” is involved.  In their petition, the publishers rely on the latter claim, but it is not very convincing.  They try to drum up controversy by suggesting that the panel ruling contradicts some Supreme Court precedents, but, again, the effort is weak.  The petition relies on the 1980’s decision in Harper and Row v. Nation Magazine, which the Supremes themselves have seriously modified in later rulings.  So when the publishers object that the panel ignored Harper‘s emphasis on the importance of the fourth factor, they are deliberately ignoring language from the later Campbell v. Acuff-Rose case.

The other source that the publisher petition puts a lot of weight on is the “special concurrence” by Judge Roger Vinson.  Essentially, Judge Vinson dissented on every major point in the majority opinion, but concurred in the result.  Taken together, the two opinions indicate that a lot of negotiation took place in the 11 months it took to produce the ruling.  It suggests, in fact, that the other two panel judges — Tjoflat and Marcus — were actually more sympathetic to fair use than is expressed in the majority opinion.  But what is important about the heavy reliance on Judge Vinson in the petition for rehearing is the fact that Judge Vinson is not a regular member of the Eleventh Circuit.  He is a senior judge at the District Court level (in Florida) who was on the Appeals Court panel to fill a vacant seat (called “sitting by designation”).  That means that he presumably will have no role in deciding whether or not to grant the petition, or in any actual rehearing, in the unlikely event the petition is granted.  So the publishers have found a friend in Judge Vinson, but he is not a friend who can help them all that much.

This petition for rehearing is thus a long shot, and it reveals the stark opposition of these three publishers to fair use as it has traditionally been interpreted throughout the long history of U.S. copyright law.  Let’s look at the three principles the publishers say that they want and that the appeals panel got wrong.

The first point from the panel decision that the publishers say is wrong involves the idea of “media-neutrality.”  This is a huge red-herring that the publishes have been waving around to distract the various courts from the weakness of their case, and they lead off with it in the rehearing petition. Judge Vinson was convinced by this argument that if courts do not treat electronic reserves the same way print course packs were treated in the “copyshop” cases from the 1990s, they are violating a principle of media-neutrality.  The majority opinion, on the other hand, tried to define the limited role that media neutrality has in copyright law, a definition the new petition claims was an error.  There are a couple of important points that are getting overlooked in this discussion.

For one thing, there are many ways in which copyright is not media neutral.  Many exceptions, for example, refer to specific media and specific technologies.  There is a provision just related to royalties on digital audio recording machines, for example.  The TEACH Act refers to transmission over a digital network, and is inapplicable to other types of distance learning.  Broadcast television is treated differently than cable, and terrestrial radio differently than Internet radio.  Since the law is therefore often media-specific, it was not irrational for the panel majority to try to define what media neutrality does, and does not, mean.  The publishers want it to mean something very specific in order to benefit their case, but the panel looked at a principle-based definition that took account of how the copyright law as a whole really works, and rejected the publishers’ ad hoc claim.

The reason for pushing this broad and self-serving definition of media-neutrality, of course, is to convince courts that the “course pack” cases are good analogies for electronic reserves.  Since those cases found against fair use, the publishers’ argument goes, the principle of media neutrality demands that fair use also be rejected for electronic reserves.  But, in fact, neither the lower court nor the appellate panel has rejected the course pack cases because of a perceived difference between electronic and print fair use.  This is just sand being thrown in the face of the courts to confuse them (it worked with Judge Vinson).  The course pack cases are distinguishable instead on first factor grounds that have nothing to do with the media involved; those cases involved a commercial intermediary making and selling the course packs, which is an entirely different situation than is reflected in the GSU case.

The second claim the publishers make in their petition attempts to undermine the first fair use factor more directly by asserting that it should not favor non-profit educational uses unless they are transformative.  Although the publishers assert that this is the meaning of the Supreme Court’s ruling in Campbell v. Acuff-Rose Music, that is simply not true.  Although that case laid great weight on transformation for many fair use decisions, it explicitly stated that not all fair use must be transformative, and cited “multiple copies for classroom use” as the paradigmatic case of a non-transformative use that is likely still fair.  They get this phrase directly from section 107, of course.  So the publishers are asking for a pretty radical reconfiguration of the copyright law here, that would directly defy the Supreme Court and the text of the law.  It would be pretty audacious of the Eleventh Circuit to accept this argument, but the publishers are clearly going all in with their fight against fair use.  It seems they are reasoning that if they can persuade the Eleventh Circuit into accepting this radical new view of copyright, they could at least get a shot at Supreme Court review by provoking a split in the circuits where none has previously existed.

Finally, the most troubling claim the publishers make is in their argument that the fourth fair use factor’s emphasis on market harm, including “potential” markets, gives them the right to decline to offer a license for digital excerpts without tipping the fourth factor toward favoring fair use.  The appellate panel correctly noted that this argument would demolish fair use, since it would allow a rights holder to say “we could have licensed this use if we wanted to, so allowing fair use damages the potential market we have chosen not to enter.”

In one sense, I would like to see a discussion of this idea of potential markets.  It should be seen as a gateway to consider the incentive purpose of copyright law.  How would it create additional incentive for creation to permit publishers to refuse to license uses of academic works?  These markets are not an end in themselves, but a vehicle to produce such incentives.  Establishing a right to refuse to license does not serve this purpose at all.  It is a selfish and antisocial argument put forward by the publishers to protect the artificial scarcity that they believe they must create in order to make money.  In short, the publishers want the right to limit access to knowledge because they do not have the vision needed to run successful businesses in a changing environment.

What do we lose if that argument is accepted?  Only our most cherished democratic value, the freedom of expression.  Fair use has always been considered a “safety valve” for free expression that prevents a rights holder from suppressing speech he or she doesn’t like by asserting copyright.  If we were to accept this potential market argument, a rights holder would be a step closer to preventing scholarly commentary by denying a license for the quotations used in, for example, a review (as Stephen James Joyce famously tried to do regarding his grandfather’s work).  That might seem extremely unlikely on a larger scale, but we should remember that publishers often require their authors to obtain permission for the use of quotations beyond an artificially imposed word limit.  Combined with this idea that denial of a license should not improve the fair use argument, the conditions for such suppression would be ideal.

The truly shocking thing about this petition is how openly Oxford University Press, Cambridge University Press and Sage Publishing are now attacking free speech and the dissemination of knowledge.  These are not “academic” presses anymore; their profit motive and shorted-sighted focus on protecting old business models has led them to assume an anti-academic stance that the scholarly community should not tolerate.  They are demanding nothing less than a right to suppress and inhibit the spread of knowledge, simply by refusing to offer a license, whenever the believe that doing so is to their commercial advantage.  I have often been asked if I think scholars, libraries, and others should boycott these publishers because of the lawsuit, and I have always said that we should wait and see where the cases goes.  To me, it has now gone in an intolerable direction, one that threatens core principles of academic discourse.  Everyone must make their own decision, of course, but I am now willing to say that I will neither publish with these three plaintiff publishers nor buy their products.  They have declared war on teaching and the dissemination of scholarship, and I will not help them buy the ammunition.

Free speech, fair use, and affirmative defenses

On an e-mail list to which I do not subscribe, there was recently a long exchange about fair use and large-scale digitization.  Part of the exchange was forwarded to me by a friend seeking comment about a specific issue that was raised, but in the course of looking back at the thread I discovered this comment:

Fair use doesn’t “allow” large scale digitization and didn’t “allow” digitization in the case of HathiTrust. The fair use provision does not allow anything up front- it has to be won through litigation. The fair use provision was used as an affirmative defense in litigation concerning the HathiTrust et al., and after much time and money spent in litigation, the court ruled, and the appeals court ruled, that HathiTrusts’s activity could be considered fair.

This comment repeats a mistake that is very common in discussions of fair use — while noting correctly that fair use is an “affirmative defense,” it concludes from that fact that fair use must be something unusual, a privilege that we rely on rarely because it is risky and difficult to prove.  But, as I hope to show with the rest of this post, affirmative defenses are quite common; in fact, almost all positive rights have to be treated as affirmative defenses in litigation.  We rely on things that are “allowed” by affirmative defenses all the time.

Basically, to call something an affirmative defense is to make a technical point about how it functions in a court case.  We should not be frightened by the phrase or invest it with too much significance.  Some of our most cherished rights would have to be called affirmative defenses in the technical sense that is the only proper usage of that phrase.

Consider the case of Cohen v. California (1971), one of our most important cases about the meaning of the First Amendment.  Mr. Cohen entered the Sacramento court house wearing a piece of clothing on which he had written a profane anti-war message — “F**K the Draft” — and was arrested for disturbing the peace because that message was considered “offensive conduct.”  The Supreme Court ultimately held that it was protected speech, in spite of the profanity, and that Cohen’s arrest was therefore improper. But let’s imagine for a moment how the trial over this issue must proceed.  The state would provide evidence that Cohen did wear the jacket, had deliberately painted the words on it, and knew what was written on his jacket when he entered the court house.  Cohen’s defense would then be to actually admit all of those points, but raise an additional fact — his words were political speech protected by the First Amendment to the U.S. Constitution.  Free speech would thus function as an affirmative defense to vindicate Mr. Cohen’s right.

I hope this example illustrates two things.  First, all an affirmative defense means is that the defendant must raise additional facts or legal principles in addition to what the plaintiff or prosecution has asserted.  This is not uncommon; anytime a defendant does more than simply deny the truth of everything the plaintiff says, they are raising an affirmative defense.  Second, all of our most cherished rights in America can function as affirmative defenses in court, but that does not mean they are unusual or unreliable.

In any court case, the plaintiff has to prove some facts in order to establish that a “cause of action” exists.  A defendant then has two avenues — he can simply deny the truth of some or all of what the plaintiff has said (we call that arguing that the plaintiff failed to meet her “burden of proof”) or he can produce additional facts that show that what he is accused of doing is actually permissible (which is the defendant’s “burden of proof”).  If we take the Georgia State copyright case as an example, we can see both strategies at work.  For over 20 of the challenged excerpts, GSU successfully argued that the publishers had not met their burden of proof by showing that they owned a valid copyright in the works in question.  Since the publishers could not produce valid transfers of copyright, there was no further need for a defense.  For 40+ other excerpts, however, GSU successfully argued some additional facts and showed that their use was fair use (although the Appeals Court has now told the trial court to reanalyze this).  Just like Mr. Cohen in the free speech case, GSU invoked a positive right that is precious to all Americans, but in the context of the lawsuit that right was presented as an affirmative defense.

I can’t say it often enough — when one is sued for doing something one believes is actually allowed by the law, that “right,” whether it is free speech or fair use, is always presented in the form of an affirmative defense.  All that means is that it is something which the defendant must raise to justify herself (something for which she bears the burden of proof), but these things are not rare, disreputable or frightening; they are the very rights that define our citizenship.

Fair use is one such right, and the copyright law very clearly calls it a right (in section 108(f)(4) of Title 17).  It is a key and indispensable component of our system of copyright, as the Supreme Court has reminded us many times (E.g., Campbell v. Acuff Rose Music, Inc., 510 U.S. 569 (1994) at 575).  It is, especially, a “safety valve” that protects free speech from encroachment by copyright holders, and it is useful to think of those two rights — free speech and fair use — together.

So it is simply wrong to say that fair use does not “allow” anything because it is an affirmative defense, just as it would be wrong to say that about free speech.  The First Amendment allows me to have campaign signs on my lawn during this election, even if my neighbors disagree strongly with me.  It allows me carry a placard down a public sidewalk proclaiming that “The End is Near,” if I am so inclined.  It would allow me even to wear a swastika tattoo, as offensive as that would be to many.  In the same way, there are many activities that we can say with assurance are allowed by the right of fair use.  When we use a quotation from a previous work in a new article we are writing, we do not stop to do a individualized analysis because we know, and pretty much everyone agrees, that this is a settled instance of fair use.  Nor do we need to re-litigate the Sony v. Universal Pictures case every time we want to record a TV show to watch at a later time; the Supreme Court has confirmed for us that doing this is allowed by fair use.  And in the HathiTrust case, the Second Circuit told us that fair use supports large-scale digitization for the purpose of indexing and access for persons with disabilities.  It is possible that a rights holder could challenge such an activity again, just as some government entity could again try to outlaw profanity in political speech.  Possible, but unwise and very unlikely.

When we say something is an affirmative defense, all we are doing is indicating how it would be raised in litigation.  Many of our most cherished freedoms would be raised as affirmative defenses.  So we must resist the urge to allow ourselves to be frightened by that phrase or to accept arguments intended to make fair use seem odd, unusual, or risky.  Fair use is no more unusual or dangerous than free speech is.

Swimming in muddy waters

Since the ruling from the Eleventh Circuit Court of Appeals in the Georgia State copyright case came out two weeks ago, most commentators have come to the same conclusions.  It is a mostly negative ruling, in which publishers actually lost a lot of what they were fighting for.  Georgia State also lost, in the sense that the case is not over for them and they are no longer assured of being reimbursed for their attorney’s fees and court costs, as Judge Evans had originally ordered.  But apart from those parties to the case, has the library community lost by this decision, or gained?  Once again, what we have gained is mostly negative — we know that we do not have to strictly observe the 1976 Classroom Copying Guidelines, we know that the cases involving commercially-produced course packs do not dictate the fair use result for e-reserves, we know that 10% or one chapter is not a bright line rule.  But there is little benefit in knowing how NOT to make fair use decisions; it is easy to see why one commentator has pled for bright line rules.

One affirmative point we can take from the case is that we know we still can, and must, do item-by-item analyses to make fair use decisions.  But what exactly should the process for those decisions look like?

As Brandon Butler from American University has pointed out, the decision-making processes will be different when we are assessing uses for teaching that are transformative versus those, like e-reserves, that are not.  We still have a good deal of freedom when the use is transformative — when the original material becomes part of a new expression, a new meaning, or a new purpose.  And this is important for a great deal of scholarship and teaching.  We should not lose sight of this important application of fair use, or assume, incorrectly, that the 11th Circuit ruling creates new limits on transformative fair use.

But when we must make decisions about digital course readings, we need to apply the “old-fashioned” four factor test.  What does it look like after the Appeals Court ruling?  I am afraid it has gotten pretty muddy:

The first fair use factor — the purpose and character of the use — continues to favor fair use whenever that use is undertaken by a non-profit educational institution.  If a commercial intermediary is involved, as was the situation in the course pack cases, this is no longer true.  But where there is no profit being made and the user is the educational institution itself, the first factor supports a claim of fair use.  And that is where the clarity ends.

The second factor — the nature of the original — can go either way, depending on the specifics of the work involved.  Is it more factual or interpretive?  This is a judgment call, and one which librarians may be hard-pressed to make when processing a number of e-reserve requests in a discipline they are unfamiliar with.  The good news is that the Court said that this factor is relatively unimportant, so the safest course may be to consider this factor neutral; call it a draw — at least where the item is not clearly creative — and move on.

On the third factor we thought we had a rule, even if many of us didn’t like it — 10% or one chapter was the amount that Judge Evans said was “decidedly small” and therefore OK for fair use for digital course readings.  The bad news is that we no longer have that rule.  The good news is that we no longer have that rule.  The 11th Circuit panel wanted a more nuanced approach, that balances amount with the other factors and especially looks at how appropriate the amount used is in relation to the educational purpose.  When the other factors line up in favor of fair use, this approach could well allow more than 10%.  If the other factors tend to disfavor fair use, only a much shorter portion might be permissible.  It is just very hard, after this ruling, to have clear standards about the amount that is usable, and that makes things difficult for day-to-day decisions.

With the fourth factor — impact on the market for the original — the 11th Circuit made things even more unclear.  The panel actually affirmed the lower court in its analysis of this factor, emphasizing that it is permissible to take into account the availability of a license for the specific use as part of evaluating this factor.  So if a license for a digital excerpt is unavailable, does that mean this factor favors fair use, as Judge Evans said?  Maybe, but the 11th Circuit added two complications.  First, it said that the Judge should have included the importance of license income to the value of the work in her fourth factor reasoning, rather than treating it as an additional consideration for breaking “ties.”  Second, they said that the fourth factor should have more weight in non-transformational settings.  How are we to put these instructions into practice?  Libraries do not have access to publishers’ accounts, as the judge did, so we cannot assess the importance of licensing income (nor can we trust publishers to give us straight answers about that importance).  And what does more weight mean?  If there is no digital license available, does more weight on this factor mean more room for fair use, perhaps of a larger excerpt?  Again, maybe.  But it also seems to mean that where such a license is available, even 10% or one chapter might be too much for fair use.

How does one swim in water that is this muddy?  The answer, of course, is very carefully.  We must keep on making those decisions, and we do have space to do so.  The fair use checklist, by the way, received a relatively sympathetic description from the 11th Circuit, but not a definite embrace.  At this point, my best advice is to keep on doing what we have been doing, thinking carefully about each situation and making a responsible decision.  I would recommend a somewhat more conservative approach, perhaps, than I might have done three weeks ago, especially when a license for a digital excerpt is available.  But the bottom line is that the situation is not much different than we have always known it to be, there is just a little more mud in the water.

GSU appeal ruling — the more I read, the better it seems

Those of us who heard the oral arguments in the Eleventh Circuit Court of Appeals last November, in which the publishers appeal of the District Court ruling favoring fair use in their copyright infringement lawsuit against Georgia State was heard, mostly expected a discouraging result from the Appellate panel. An initial or cursory reading of the opinion issued by the panel of the 11th Circuit on Friday might even confirm those fears.  After all, the fairly positive ruling from the District Court is reversed, the injection and the order for the publishers to pay GSU’s costs and attorney’s fees are both vacated, and the whole case is remanded back to the District Court to reconsider.  But once one begins to read carefully, the panel opinion gets much better.  All of the big points that the publishers were pushing, which consequently are the really bad potential rulings for higher education, go against the publishers.  In many ways, they won a reversal but lost the possibility of achieving any of their most desired outcomes.  Higher ed didn’t exactly win on Friday, but the plaintiff publishers lost a lot.

There is a thorough and smart analysis of the ruling from Nancy Sims of the University of Minnesota found here.

For those of us struggling to make responsible fair use decisions on a day-to-day basis, this Appeals Court ruling doesn’t actually change much.  The message for us is that it could have been much worse, the case is far from over, and we must just keep on making the same kind of reasoned and reasonable fair use decisions we have been making for years.

What we got from the three-judge panel of the Eleventh Circuit on Friday is a mostly negative ruling that outlines where both Judge Evans of the District Court and the plaintiff publishers are wrong, as the panel thinks, about fair use.  To be exact, two judges — Tjoflat and Marcus — tell us those things.  The third judge, Vinson, concurs in the result — the reversal and remand of the case — but would have accepted virtual all of the publishers arguments and closed the door on fair use for even very small classroom readings.  His concurrence suggests that getting an opinion together was probably a difficult process involving a lot of compromise (it took eleven months), and it also tells us how bad the opinion could have been for universities.  Instead, what the panel majority issued is mostly bad for the publishers.

In my opinion, there were five major principles that publishers wanted to get from this lawsuit, and in the Appeals Court ruling they lost on all of them:

  1. Publishers wanted the Appeals Court to hold that Judge Evans should have ruled based on the big picture — the large number of electronic reserve items made available to students without permission — rather than doing an item-by-item analysis for each reading.  Instead, the Appeals Court affirmed that the item-by-item approach was the correct form the analysis should take.  This, of course, is the key that allows universities to make individualized fair use decisions, and it rejects the attempt to force all schools to purchase a blanket license from the Copyright Clearance Center (which was, in my opinion, the fundamental goal for which the case was filed in the first place).
  2. The plaintiffs wanted a ruling that non-profit educational use did not mean that the first fair use factor always favored fair use.  They wanted the Appeals Court to hold that where the copying is non-transformative, and both Judge Evans and the Appeals Court felt that the copying at issue was non-transformative, the first fair use factor does not favor the defendants, even when they are non-profit educational institutions.  But the Court of Appeals correctly applied Supreme Court precedent and held that the first fair use factor still favors fair use for such “verbatim” copying when it is done for an educational purpose without profit.
  3. The Appeals Court held that the so-called “course pack” cases, which rejected fair use for course packs made for a fee by commercial copy shops, were not controlling precedent in the situation before it, where GSU was doing the copying itself and made no profit from it.
  4. The publishers wanted a clear statement that the Classroom Copying Guidelines were a limit on fair use for multiple copies made for classroom use, defining a maximum amount for such copying of 1000 words.  They lost there too; the panel held that the Guidelines were intended as a minimum safe harbor and did not define a limit on fair use.  Therefore they do not control the decision for this type of copying.  Instead, the panel rejected the 10% or one chapter rule applied by Judge Evans as too rigid and instructed her to use a more flexible approach that takes account the amount appropriate for the pedagogical purpose.
  5. Finally, the publishers were hoping that the Appeals Court would reject the idea that the availability of a license for a digital excerpt was relevant to the fourth fair use factor; they wanted a rule that says that any unlicensed use is an economic loss for them, even if they have decided not to make the desired license available.  They lost that too; the panel affirmed that the District Court was correct to consider the availability of a license for the specific use when evaluating market harm.

These losses, which constitute the heart of what the publishers were hoping to achieve when they brought the lawsuit, are probably final.  They are now binding precedent in the 11th Circuit, and persuasive throughout the country.  The publishers could presumably appeal to the Supreme Court, but it seems unlikely the current Court would take the case because there is no split amongst the Circuit Courts, only a growing consensus about fair use.

So if the publishers lost on everything that really mattered to them, why was the case reversed?

First, as I have said, this is a big loss for the publisher plaintiffs, but it is not a win for GSU.  With the reversal of the District Court ruling and the injunction and fee award vacated, their copyright policy is again up in the air.  And, of course, they have lost the immediate prospect of collecting about $3.5 million in costs.  But for now, they, like all libraries, should probably just carry on with their normal practices and wait to see what happens on remand.

When (if?) the case gets back to Judge Evans, who I very much doubt wanted it back, the fair use analysis will look somewhat different. The Appeals panel found specific errors in her analysis of the second and third fair use factors. On the second factor they have told her that she cannot presume that the works in question are all “informational.” She has been told to do a work-by-work evaluation, but also told that this factor is not very important.  On the third factor, the amount used, the panel said that her bright-line rule of no more than 10% or one chapter was too rigid (as would have been the much lower bright-line rule the publishers wanted).  Here too, the Appeals Court wants a more nuanced and fact-specific analysis, looking at both quantity and quality (the heart of the work).  Significantly, they have told Judge Evans to look at the pedagogical appropriateness of the excerpt when determining how the amount factors into a fair use analysis.  Since this corresponds with what many of us tell campus faculty — use only what you really need and no more —  it is nice that the panel approved.  Finally, Judge Evans has been told to give the fourth factor — market harm — more weight, rather than counting all the factors equally.  This would probably, but not certainly, result in fewer findings of fair use.  Instead of the split we got — 43 fair uses versus 5 infringements (plus 26 for which there was no prima facie showing of infringement)– there would probably be a different division.  Maybe 30 excerpts would be fair use and 18 infringing; who knows?  But I think we should consider whether or not getting to that point really benefits anyone.

Which brings me to considering what the various players should do now, in light of this ruling.

The publishers, as I say, have pretty much lost even as it looks like they were winning.  There is no good that can come out of a remand for them.  At best they will get that different division between fair use and infringement as a result, and will be able to use it to spread a little more fear amongst academic libraries about the uncertainty of fair use.  But that is not their real goal, I hope.  They were hoping to radically change the landscape, and they have failed spectacularly.  If there is any common sense left in their board rooms and executive suites, they need to considering settling with Georgia State and then engaging in real, good-faith negotiations with higher education and library groups.  Don’t open those negotiations with threats, as you did before.  We now know how toothless your threats are.  But it is still the case that libraries and faculties would like some standards they can follow that are realistic in light of what the courts have told us.  There is no windfall for publishers in such negotiations, but there might be some stability, not to mention the savings they will realize if they stop wasting money on foolish and unavailing litigation.

As for academic libraries, this long, drawn-out case, although not over yet, appears to have been much ado about nothing.  We still should be making careful, responsible and good-faith decisions about copyright and fair use, just as we have done for years.  We need to educate ourselves, look at the array of precedents we have from the federal courts, and continue to do our best.  There has been no revolution, and no dramatic alteration of the conditions under which we do our work.  The bottom line is that, after this ruling, libraries should just keep calm and carry on.