Category Archives: Licensing

Defining derivatives

It is frequently interesting, and sometimes appalling, to see how a court that does not usually deal with copyright issues reacts when confronted with one.  Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia is certainly not a complete novice regarding copyright, but the issue she confronted in Drauglis V. Kappa Map Group must certainly have been a new one for her.  It is a case involving the scope and interpretation of a Creative Commons license, and Judge Jackson deals quite well with it, in my opinion, in a decision issued last week.  But she is drawing lines in this case that I am quite sure will be discussed and readjusted over the next few years.

The facts in the case pose a situation that anyone familiar with CC licensing could probably have seen coming.  Art Drauglis, the plaintiff, took a quite lovely photograph  of a scene in rural Maryland that he calls “Swain’s Lock.”  There is no indication that Drauglis is a professional photographer, and he uploaded the image to a Flickr account he shares with his wife, using a CC Attribution Share Alike license.  Several years later he was upset to find that a publisher, Kappa Map Group, had used his photograph on the front cover of their Montgomery County Street Atlas, which, of course, they offered for sale.  Drauglis sued alleging copyright infringement based on the commercial use,  that the share alike provision of his license had been violated, and that he was not given appropriate attribution.  The court dismissed all of these claims on a motion of summary judgment, in the process making some important rulings about how we should understand Creative Commons licenses.

As an initial matter, Judge Jackson cites several authorities for the general proposition that a copyright holder who licenses his or her work can only sue for copyright infringement if the use is outside the scope of that license.  The issue of commercial reuse is an easy matter for the court, since the license Drauglis chose allows such commercial reuse.  He could have chosen an non-commercial (NC) term for this photo, but did not. So the fact that Kappa Maps took the photo and used it as the cover illustration for a commercial product does not, by itself, support a claim of copyright infringement.

The lesson from this part of the story is clear; rights holders need to think carefully about the terms of the licenses they imply.  Creative Commons offers a very flexible set of licenses, and those of us who use them can adjust to suit our particular needs.  But we need to think through what those needs are and select the appropriate terms.

If this was an easy call, three other points raised in this decision are more complicated, and offer some insights into how we might think about some of the aspects of Creative Commons licenses.

First, Drauglis asserted that the terms of his Share Alike provision had been violated because the Atlas was not offered for free and under similar conditions.  To decide this issue, Judge Jackson notes that a CC SA provision applies only to derivative works, and she then examines the definition of a derivative in section 101 of the copyright law.  Noting that a derivative is defined as a work that is “based upon” a preexisting work and that modifications appear to be required, the judge determines that simply reprinting the photo as the cover illustration of a map book does not create a derivative work.  Instead, she considers the atlas to be a compilation, which is treated quite differently in our copyright law.

In general I think this aspect of the case raises a distinction that many users of CC licenses and CC licensed material do not think about — the fact that a share alike provision applies only to derivative works, and not all uses would qualify as derivatives.  The reason I think this will be a matter for future debate is because the line is not very clear.  If I use a preexisting image as an illustration for a web page I create, at what point does that use result in a derivative work?  If the image is reproduced in its entirety and not changed, but merely surrounded by the other parts of the site, it sounds from this decision like the website might be a compilation of sorts, and the SA provision would not come into play.

One thing that is clear, and this is my second point, is that a Share Alike provision does not require that the second work be made available for free, as long as a derivative is not created. The compilation atlas containing Drauglis’ photo was sold, of course, and the court said that was OK because there was no non-commercial restriction on the license and the commercial work was not a derivative (which would activate the share alike restriction).  This was a important issue for me when I was deciding which CC license to use for my book that was published last year.  I considered a CC-BY-SA license in the mistaken belief that this would prevent commercial exploitation of the book without my explicit consent, something I wanted to prevent in order to protect the publisher.   My colleague Paolo Mangiafico corrected my thinking on this point, pointing out that someone could, conceivably, download the book and sell unmodified copies without violating the SA provision.  In this Paolo correctly anticipated the district court, and his argument convinced me to use an attribution/non-commercial license.  Thus non-commercial derivatives are allowed, which was important to me, but all commercial uses other than by the ACRL, who published the book, would require my additional permission.

The third aspect of the case that I think will generate ongoing discussion is the small controversy about appropriate attribution.  This is an issue that I hear about frequently from users of CC-licensed material, who want to do the right thing.  In the case against Kappa Map Group, Drauglis argued that the credit given for his photo, on the outside of the back cover of the Atlas, was inadequate and conflicted with the general statement claiming copyright in the work as a whole that was inside of the front cover.  To decide this issue the judge looked at how copyright notices for the individual maps were handled and what the general standards for appropriate attribution were, and concluded that Kappa had behaved correctly.  This aspect of the case offers a clear lesson for other users of CC licenses.  It is long established that works can have multiple copyright statements, and an assertion of copyright in an overall work does not negate attribution and assertion of rights for incorporated material as long as that attribution is given in a manner appropriate to the medium and the work.  So I think the messages for users of CC-licensed materials from this part of the decision is to relax, give attribution in the best way appropriate to the new work, and not worry too much about the fact that a new work may have multiple attributions and copyright statements.

There is additional analysis and discussion of this case over at TechDirt.  To me the bottom line is that Kappa Map Group behaved responsibly and Mr. Drauglis, suffering from licencor’s remorse, tried to use the courts to remedy his own mistaken selection of a license.  Nevertheless, whether this case is finished or not, I think we will hear more about what the boundaries of a derivative work really are.



What happens when there is no publication agreement?

Scholarly communication discussions and debates usually focus, quite obviously, on the terms of publication agreements and the licenses those agreements often give back to authors to use their own work in limited and specific ways.  This is such a common situation that it is hard to realize that it is not universal for scholarly authors.  But recently it has come to my attention that some authors actually never sign any agreement at all with their publishers, and in one situation that I will explain in a moment, that led to a dispute with the publisher about whether or not the author could place her article in an institutional repository.  The issue, broadly speaking, is when an implied license can be formed and what such licenses might permit.

In a couple of previous posts, I have discussed the idea of implied licenses: licenses that are formed without an explicit signature, usually because someone takes an action in response to a contractual offer, and the action is clear enough to manifest acceptance of that offer.  One of the most common implied licenses that we encounter underlies the transaction every time we open a web page.  Our browsers make a copy of the web page code, of course, and that copy implicates copyright.  But our courts have held that when someone makes a web page accessible, they are offering an implied license that authorizes the copying necessary to view that webpage.  No need to contact the rights holder each time you want to view the page, and no cause of action for infringement based simply on the fact that someone viewed a page and therefore copied the code, temporarily, in their browser cache.

It is important to recognize that such licenses are quite limited.  An implied license can, at best, be relied upon when doing the obvious acts that must have been anticipated by the offeror, such as viewing a web page.  An implied license would not, for example, authorize copying images from that website into a presentation or brochure; that would be well beyond the scope of an license implied by merely making the site available.  For those sorts of activities, either permission (an explicit license) or an exception in the copyright law would be needed.

So how might implied licensing help us untangle the situation where an author has submitted her work to a journal, and the journal has published it without obtaining an explicit transfer of right or a license?  As I said, this is a reversal of the normal situation, and it caught me by surprise.  But I have heard of it now from three different authors, all publishing in small, specialized journals in the humanities or social sciences.

The way the question came to me most recently was from an author who had published in a small journal and later asked, because she had no documentation that answered the question, if she could deposit her article in an open repository.  The publisher told her that she could do so only after obtaining permission from the Copyright Clearance Center, and she came to me, through a colleague, asking how the publisher could insist on her getting permission if she had not signed a transfer document.  Could the publisher, she asked, claim that the transfer had taken place through some kind of implied contract?

The answer here is clearly no; the copyright law says explicitly, in section 204, that “A transfer of copyright ownership… is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.”  So an implied transfer of rights is impossible; all that can be conveyed implicitly is a non-exclusive license (as in the web site example).

In the case of my author with no publication agreement, she remains the copyright holder, whatever the publisher may think.  At best, she has given the publisher a non-exclusive license, by implication from her act of submitting the article, to publish and distribute it in the journal. This is not really all that unusual. I have written opinion pieces for several newspapers in the past and never signed a copyright transfer; the pressure of daily publication apparently leads newspapers to rely on this kind of implied license quite frequently.  But it is unusual in academia, and requires some unpacking.  No transfer of copyright could have occurred by implication, so the rights remain with the author, who is free to do whatever she likes with the article and to authorize others to do things as well.  The publisher probably does have an implied license for publication, but that license is non-exclusive and quite limited.

As we worked through this situation, three unanswered questions occurred to me, and I will close by offering them for consideration:

  1. Are authors always correct when they tell us they did not sign a publication agreement?  Sometimes an agreement may have been forgotten amidst all the paperwork of academic life, or the agreement might have been online, a “click-through” contract at the point of submission.  We need to probe these possibilities when confronted with the claim that no agreement was signed, but those are very delicate conversations to have.
  2. Returning for a moment to the possibility of a click-through agreement that the author could have forgotten, we might also ask if this type of arrangement, increasingly common among academic publishers, are really valid to transfer copyright.  I am well aware that courts are becoming quite liberal in accepting online signatures and the like, but is there a limit?  Where there is a statute that explicitly requires a signed writing for a specified effect, as the Title 17 does for assignment of copyright, could an author challenge the sufficiency of a (non-negotiable) click-through agreement?  I expect that this issue will eventually come before a court (if any readers who know of such cases, please add the information in the comments), and I will be very interested in that discussion.
  3. Finally, what do we make of the journal’s claim, in the situation I was asked about, that the author must purchase permission to use her own work from the Copyright Clearance Center?  If there was no transfer of rights, the journal has no right to make such a demand and the CCC has no right to sell a license.  This is one more situation where it seems that the CCC is sometimes used to sell rights that are not actually held by the putative licensors, and it renews my concern about whether, and when, we actually are getting value for the money we spend on licensing.

What is “extended” about Extended Collective Licensing?

There has been a lot of discussion recently about the new proposals sent out for comment by the Copyright Office about orphan works and mass digitization, and numerous library groups are drafting responses to the Notices of Inquiry as I write.  Part of what the CO proposes in regard to mass digitization is an “extended collective licensing” scheme, which prompts the question in my title.

Before turning to that, however, let’s look a moment at the whole picture of what the CO is suggesting here.  The proposals address the overall problem of orphan works.  Unfortunately they do not do so by taking steps to reduce the number of orphan works or to make finding rights holders easier.  Instead, they create significant new obstacles for users who want to make use of an orphan work.  If you are looking to use just one or two works for which a rights holder cannot be determined, the CO wants you to go through a poorly-defined process of making a “reasonably diligent” search AND they will insist that you register your use.  If this seems backwards, that is because it is.  The goal here seems to be to discourage use, and hence new creation, by placing the onus on the user rather than the rights holder to make themselves known.  The excuse for such lousy policy would probably be the prohibition of formalities in the Berne Convention, but other countries have adopted voluntary registries for rights holders. Our Copyright Office, however, has been blinded by staring into the brilliance of Hollywood for so long, and can only see copyright on their terms.  Hence the necessity of burdening users who, we know, are significant threats to the “creativity” of the music and movie companies.

Alongside this proposal for how to deter use of individual orphan works is a grander scheme to deter mass digitization projects, called extended collective licensing.  So what does “extended” mean in this context?  A normal collective licensing scheme means that rights holders get together and create a collective organization to administer the rights that they own.  Such organizations are usually inefficient and sometimes prone to corruption, but there is nothing inherently wrong with the idea behind them.  They could, if done well, increase efficiency for both rights holders and users (that is, for new creators).  When a collective licensing scheme is extended, however, it means that licenses are being sold for rights not held by any of the members of the collective society.  That is the point about orphan works — a collective society representing the traditional content industries would sell licenses for the use of works for which they do not, by definition, hold the rights.  They would collect licensing fees “on behalf” of the unknown owners.  According to the proposed pilot, such a collecting agency would have an obligation to look for the correct rights holders in materials for which the collect fees, but there is no indication of how they would do this and no indication that a significant success rate could be achieved.  After a certain period of time, of course, the money collected would belong to the usual suspects; they would reap where they did not sow.

So what does “extended” really mean here?  If the situation were reversed, the content industries themselves would have a perfect word for it.  They would call it theft, or piracy.  Traditional rights holders love to use analogies with real property, claiming, ad nauseum, that downloading an unlicensed movie is equivalent to driving off in someone else’s car.  Now they are proposing, through the Copyright Office, to sell other peoples’ property for their own benefit.  Wouldn’t the “extended” analogy then be me trying to sell a car parked in front of my house, just because I do not know who the owner is?  It seems that in this context, “extended” just means parasitic — claiming a unjust and undeserved benefit from someone else’s labor.

Economists, of course, have less harsh, but no less pejorative, terms for this sort of arrangement.  One is “rent seeking,” which refers to efforts to gain a profit without making any reciprocal contribution to society by creating value.  When a company records and distributes a song or an album, and collects money for it, that is a normal economic exchange — value for value.  But when Warner Music Group continues to collect fees for the use of “Happy Birthday to You” long after any incentive for creativity is being fostered and, apparently, long after the rights have been abandoned, that is pure rent seeking — the pursuit of an undeserved profit without a normal exchange of value.  ECL is a similar exercise in rent-seeking, asking, that is, to benefit from the labors of unknown others without the obligation to provide value in exchange.

Another economic term is relevant here — deadweight loss.  Taxation is often held to be responsible for deadweight loss, when, because of taxes, it becomes too expensive to make or sell some good.  In that situation, the manufacture will stop making the good, and society will lose all the potential benefits — no goods and no tax revenue.  Deadweight loss.  In the case of extended collective licensing, the risk of deadweight loss, and the analogy to a tax, is the same.  ECL is a form of tax on using orphan works.  The revenue from that tax will have no benefit in providing an incentive for further creation, because it will not go to the creators who made the works in the first place.  But a requirement to pay such an unproductive tax will certainly deter many digitization projects that could make rare historic materials available for research, study and teaching.  Thus productivity is lost without the benefits of an economic incentive.  It is, truly, a lose-lose situation.

The truth about contracts

The impetus behind this post is a specific discussion that took place on an e-mail list.  The question under discussion was how to license student work for deposit in an institutional repository.  At one point I said that a license could be created by a simple line in the syllabus for a course that said that certain designated works would be put in the repository, followed by the “performance” (used in contract law to refer to conduct related to the bargain) of handing in those works.  This claim, which I thought was innocuous, was disputed.

The whole discussion reminded me that there are some serious misapprehensions about contracts, contract law, and licensing in the academic world.  So rather than continue the debate on the list, I thought I would offer some basic truths about contracts and licenses in this space.  That way my musings only clutter the in-boxes of those who subscribed, rather than everyone on the list.  And the debate, if needed, can continue, because the comments will be open, as they are for all posts on this blog.  I should add that what I say here is based on U.S. law, and mostly on the Uniform Commercial Code, which has been adopted into the commercial law governing contracts in every U.S. state.

So let’s start at the beginning.  A contract is simply a promise that the law will enforce.  The law does not enforce all promises, but a promise need not be very formal to be a binding contract.  All that is needed is an offer, an acceptance of that offer, and some “consideration,” which simply means that each party must get something out of the bargain.

But there is more to say about contracts.  One of the most important points is that contracts are business documents, intended to accomplish specific goals shared by the parties.  Legal language is less important to a contract than a clear expression of the intent of the parties — what they want the contract to accomplish in their relationship.  Lawyers are actually not the most important people in the drafting of a contract, the parties are, because they know what they want the contract to do.  The cleanest or most formal legal language in the world is useless if it fails to express those intentions.

Perhaps because we so often deal with obscure and lengthy database licenses from vendors with lots of lawyers on staff, librarians tend to think of contracts as big, formal and very serious, even frightening, documents.  But a contract can be very simple, and it need not even be a document.  If my neighbor comes to my door and offers to cut my lawn for $30, and I say OK, we have formed a contract at that moment.  Note what the “consideration” is — a promise to cut my lawn and a promise to pay $30.  Promises are the most common type of consideration in a contract, but an offer for a contract can be accepted by performance.  Suppose I asked my neighbor if he would cut my lawn for $30 and he said nothing.  But later that same day, he does cut my lawn.  I owe him $30 and the law would enforce the promise because my neighbor accepted my offer in a timely way by the act of cutting the lawn — there was an offer, acceptance by performance, and consideration on both sides; I got a neater lawn and he got my enforceable promise to pay $30.

Another reason librarians might think that contracts are formal and serious is because they hear so often that contracts “trump” copyright law.  Since copyright law is a very important federal law, contracts must be an even more serious matter to trump it.  But, actually, we allow contracts to supersede copyright law not because they are so “big” but because they are small.  U.S. Copyright law binds every person who is subject to its jurisdiction, but a contract binds only the parties who agree to it.  A contract is a “private law” arrangement by which two parties (or sometimes more) rearrange their own relationship.  Within that relationship, we will allow parties to agree to give up various rights — under copyright, for example.  They could even surrender their free speech rights in some limited cases.  This is not because contracts are “stronger” but because they are “weaker” then other parts of the law — they only rearrange the rights of those who agree to them.

One way we can tell that contracts are “weaker” in this sense than the law that binds all citizens is that the risk associated with failing to fulfill a contractual promise is usually much lower than it is for a violation of public law.  Contract damages are generally determined by the intended relationship expressed in the contract.  In my example above, if I “breach” the contract by not paying my neighbor, the law could force me to give him “the benefit of the bargain,” which in that case was $30.  In most situations, that would be it; there are no statutory damages for contracts as there are in copyright law, for example, and the goal of contract “remedies” is usually either just to see that the parties get what they bargained for, or, at least, to put them back in the positions they were in before the contract was formed.  As a lawyer, I would never advise someone to do something I believed was an infringement of copyright, but it is possible to imagine situations where breaching a contract could make sense; the classic example is where a business person can make a greater profit if they get out of the contractual relationship even if they have to pay damages.  Such a situation is called an “efficient breach of contract.”

One final general point about contracts before we turn to licenses specifically.  A contract is often “implied” by the way the parties behave.  In my example above we saw that a contract could be formed when the person who received my offer simply acted on it; his acceptance was implied by performance.  Only a very few contracts must be in writing, and they are specified by law.  The copyright law tells us, for example, that transfers of copyright and exclusive licenses must be in writing (see section 210(d)), but non-exclusive licenses can certainly be implied.  Most states require that sales of real property be in writing, through laws referred to as “Statute(s) of Fraud,” but it is quite clear that many other contracts can be oral, or even evidenced by some kind of action.  “Shrink wrap” licenses for software are a good example, where opening and using the product is a sufficient indication that the purchaser has accepted the terms of use (see ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).

In the copyright realm, implied licenses are actually quite common.  A license, remember, is simply “a revocable permission to commit some act that would otherwise be unlawful” (from Black’s Law Dictionary).  Note that a license is presumed to be revocable unless there is explicit agreement otherwise; for this reason, an implied license is always revocable.  But, as I say, they are very common.  The example we all rely on most, I dare say, is the implied license created whenever someone puts a page up on the Web.  When I look at that page, I am making an apparently unauthorized copy in the cache of my computer, which looks like an infringement.  But courts around the world have recognized that it would be absurd to allow a webpage author to sue anyone who looked at the page for infringement, and have instead found an implied license in the act of uploading a page.  There is an interesting discussion of a case that tested the limits of an implied license here, on

A license is not always a contract, but most are.  In the case of an implied license to view a web page, one could argue that there is offer and acceptance, but it does not seem that there is consideration, something that each side gets out of the bargain.  So it may be a non-contractual license, but it is a license all the same.

When we turn, finally, to the case of a syllabus that informs students that certain work they hand in will be made publicly accessible through an institutional repository, I think we can now see that all of the elements of a license, and even a contractual license, are present.  There is an offer made — in exchange for a grade and credit in this course, you will give the school a license for IR deposit.  And when the work is handed in, there is a performance from which acceptance of that offer is readily implied.  In this case, I also think there is consideration, since the student gets that grade and credit she bargained for (she could, of course, have rejected the offer by dropping the course, or she could even have counter-offered by asking for different terms), and the school gets a license.  This is a valid contract that creates a license upon which the school can rely.

To say that the license is valid is not the same as saying it is wise to do this.  It also ignores some other issues.  A university might decide, for example, that putting work in a repository implicates privacy rights and therefore requires an explicit writing.  But as a contract matter, the license is real and reliable.  It is presumptively revocable, as explained above.  So the situation might arise where the student decides she now longer wants her undergraduate essay on the web and requests that it be removed.  In that situation I would first want to talk with the student and see if we could find an agreement that would leave the terms of the course assignment intact.  If we could not reach such an agreement, I would suggest that the school should remove the work, because once the license is revoked the continued distribution could be an infringement of the student’s copyright.  But in that instance, the school is then entitled to consider whether the student has met the requirements for credit.  If public distribution is considered a sufficiently important part of the pedagogy, the school could conclude that credit for the course should be revoked. This is simply acknowledging the mutual bargain that exists in all contracts.

As I argued on the list, this form of implied license is not legally different from many teaching strategies that implicate copyright.  Suppose an art class tells students (either orally or in the syllabus) that their final projects will be included in a public departmental exhibition.  Copyright is implicated, and a license is implied when the final project is handed in.  The same would be true if a class assignment required students to create a web page, post a video to YouTube, or have a class discussion via Twitter.  The point here is not to recommend or condemn any of these strategies, but merely to explicate the law that would support all of them.

The truth about contracts is that we deal with them every day.  They need not be formal, and they need not intimidate us.  They are simply the mechanism we use to arrange our relationships in a great many situations, including teaching situations that implicate the copyrights held by students.

Jury instructions go missing

Jury instructions are one of those things that few people, not even most lawyers, think about very often.  But if you are involved in a trial, they can be vitally important.  The ways in which juries are instructed on particular points of law can determine the outcome of a case, so litigants and the lawyers must spend a lot of time arguing over which instruction should be given and how they should be worded.  Many appeals revolve around the accuracy and appropriateness of the instructions that were given to a jury.

Because they are so important and potentially so contentious, most states develop model jury instructions, or “pattern” instructions, as they are called in North Carolina, for a great many legal doctrines and situations.  Access to these pattern instructions is important for litigants.  Although their use is not required in North Carolina, using a pattern instruction creates a presumption that the jury was properly instructed.  Also, specific variations that a litigant wants a judge to make in an instruction are best proposed as amendments to the pattern.

I admit that I have never consulted the North Carolina Pattern Jury Instructions.  Nevertheless, I was dismayed to receive this announcement from the North Carolina Bar Association telling me that the free access I had to the Pattern Instructions as a member of the Bar would soon be ending. The story it tells is interesting and instructive.

First, the Pattern Jury Instructions are developed by the North Carolina Conference of Superior Court Judges.  That is, they are created by state officials as part of their official duties.  But unlike documents created by Federal employees, there is a copyright in these instructions, and that copyright has been given to the University of North Carolina School of Government.  The SOG, in turn, has given a vendor called CX Corp an exclusive license to distribute the instructions.  For over a decade the Bar Association contracted with CX to provide access as a member benefit to NC lawyers, but that contract is expiring and efforts to renew it have failed.  A familiar story to librarians, of course, and probably due to the same, familiar reason that most licensing renewals fail — a demand for more money than the licensee feels it can pay.

For many North Carolina lawyers, the impact of this new regime will be minimal.  Medium and large firms will just factor in the cost and effort of getting an individual subscription to the Pattern Jury Instructions.  Presumably the UNC School of Government will realize more revenue from this gifted copyright.  But I worry about pro se litigants and those who are represented by solo practitioners or small firms.  Those folks might well be at a disadvantage in a crucial phase of a trial, the debate about how the jury will be instructed.  They will either have to scrape up the money to purchase a print or electronic version of the pattern instructions, find one of the relatively few public law libraries where they can consult them, or else risk advocating for instructions that will be more easily challenged and undermined.

From this unfortunate situation, I want to draw two points that I think are of general relevance to those of us who think about copyright matters.

First, it is an important reminder that we cannot assume that public documents intended for a public purpose are necessarily public domain.  The familiar provision in U.S. copyright law that puts documents created by the federal government in the public domain is, obviously, only about federal documents.  The states can and sometimes do claim copyright in official state documents.  They are often used as revenue sources, especially if there is a target audience of professionals, like building contractors or lawyers, from whom payment can be readily expected.

The problem with this situation is that the different states take different approaches to what is and is not in the public domain, and also that a single state may be wildly inconsistent about its approach to different types of documents it creates.  In most states, most official documents are public domain, at least in the practical sense that they are reasonably accessible without cost.  But odd things, like building codes or jury instructions or even an electronic database of the state’s laws, many be exclusively behind a pay wall.

The other instructive point in this is the realization that copyrights, especially those held by state and local government, may be used to enact policy goals that have nothing to do with copyright.  The purpose of copyright is, explicitly, to incentivize creation.  Presumably the NC Conference of Superior Court Judges did not need the promise of royalties in order to compile the Pattern Jury Instructions; creating those instructions was simply a part of good judicial practice for the state.  So here we had a copyright that wasn’t doing any work.  What can we do with it; how can we use it to make some money?  Here’s an idea, let’s give it to the UNC School of Government as an added revenue source!  They can exploit it in a way that would be inappropriate for the judges, and the state’s flagship public university can reap the benefit.

This isn’t necessarily a bad idea; at least, the purpose is worthwhile.  But it is a public policy that copyright was not intended to serve, and it is worth noting that this can happen, and that not all the policies that are supported this way will be equally laudable.  In the ideal world, states would be more transparent about what they claim a copyright in and why.  And elected representatives should be given the chance to approve, or not, those policy ends that are furthered by the exploitation of copyrights claimed in state documents.  At least that way, there would be some accountability when copyright is used for purposes other than that for which it was instituted.

While I was preparing this post, I encountered a somewhat parallel story about another legal document — the Bluebook that is the required citation manual for law students, lawyers, and litigants in many U.S. courts.  As the blog TechDirt reports, this is another case where access for impoverished litigants may be important, but copyright protection allows access restrictions that impose financial barriers.  Of course, unlike the Pattern Jury Instructions, the Bluebook is a privately created document, so there is less confusion about the appropriateness of the initial copyright.  Nevertheless, Carl Malamud and his Public Resource allies have mounted a campaign asking that the Bluebook be made more accessible and, as it turns out, finding grounds to challenge the continued existence of a copyright in the work.  Fascinating reading.


Planning for musical obsolescence

Gustavo Dudamel is one of the most celebrated conductors of his generation.  As Music Director of both the Los Angeles Philharmonic and the Simon Bolivar Orchestra of Venezuela, he has built a solid and enthusiastic following amongst lovers of symphonic music.  He is also, according to his website bio, deeply committed to “access to music for all.”  So it is particularly poignant that a recording by Dudamel should serve as the prime example of a new access problem for music.

When Dudamel and the Los Angeles Philharmonic release a new recording of a live performance of Hector Berlioz’s Symphonie Fantastique, it should be a significant event, another milestone in the interpretation of that great work.  But in this particular case we are entitled to wonder if the recording will really have any impact, or if it will drop into obscurity, almost unnoticed.

Why would such a question arise?  Because the Dudamel/LA Philharmonic recording was released only as a digital file and under licensing terms that make it impossible for libraries to purchase, preserve and make the work available.  When one goes to the LA Philharmonic site about this recording of Symphonie Fantastique and tries to purchase it, one is directed to the iTunes site, and the licensing terms that accompany the “purchase” — it is really just a license — restrict the user to personal uses.  Most librarians believe that this rules out traditional library functions, including lending for personal listening and use in a classroom.  Presumably, it would also prevent a library from reformatting the work for preservation purposes in order to help the recording outlive the inevitable obsolescence of the MP3 or MP4 format.  Remember that the section 108 authorization for preservation copying by libraries has restrictions on digital preservation and also explicitly allows contractual provisions to override that part of the law.

At a recent consultation to discuss this problem, it was interesting to note that several of the lawyers in the room encouraged the librarians to just download the music anyway and ignore the licensing terms, simply treating this piece of music like any other library acquisition.  Their argument was that iTunes and the LA Philharmonic really do not mean to prevent library acquisitions; they are just using a boilerplate license without full awareness of the impact of its terms.  But the librarians were unwilling.  Librarians as a group are very law-abiding and respectful of the rights of others.  And as a practical matter, libraries cannot build a collection by ignoring licensing terms; it would be even more confusing and uncertain than it is to try to comply with the myriad licensing terms we encounter every day!

In the particular case of the Dudamel recording of Berlioz, we know rather more about the situation than is normal, because a couple of intrepid librarians tried valiantly to pursue the issue.   Judy Tsou and John Vallier of the University of Washington tracked the rights back from the LA Philharmonic, through Deustche Grammophon to Universal Music Group, and engaged UMG in a negotiation for library-friendly licensing.  The response was, as librarians have come to expect, both inconsistent and discouraging.  First, Tsou and Vallier were told that an educational license for the download was impossible, but that UMG could license a CD.  Later, they dropped the idea of allowing the library to burn a CD from the MP3 and said an educational license for download was possible, but only for up to 25% of the “album.”  For this 25% there would be  a $250 processing fee as well as an unspecified additional charge that would make the total cost “a lot more” than the $250.  Even worse, the license would be limited to 2 years, making preservation impossible. The e-mail exchange asserts that UMG is “not able” to license more than 25% of the album for educational use, which suggests that part of the problem is that the rights ownership and licensing through to UMG is tangled.  But in any case, this is an impossible proposal.  The cost is absurd for one quarter of an album, and what sense does it make for a library to acquire only part of a performance like this for such a limited time? Such a proposal fundamentally misunderstands what libraries do and how important they are to our cultural memory.

Reading over the documents and messages in this exchange, it is not at all clear what role Maestro Dudamel and the LA Philharmonic have in this mess.  It is possible that they simply do not know how the recording is being licensed or that it is unavailable for libraries to acquire and preserve.  Or they may think that by releasing the recording in digital format only they are being up-to-date and actually encouraging access to music for everyone.  In either case, they have a responsibility to know more about the situation, because the state of affairs they have allowed impedes access, in direct contradiction to Maestro Dudamel’s express commitment, and it ensures that this recording will not be part of the ongoing canon of interpretation of Berlioz.

As far as access is concerned, the form of its release means that people who cannot afford an MP3 player will not be able to hear this recording.  Many of those people depend on libraries, and that option will be closed to them because libraries cannot acquire the album.  Also, access will become impossible at that inevitable point in time when this format for digital music becomes obsolete.  Maybe UMG and the Philharmonic will pay attention and release the recording on a different format before that happens, but maybe they won’t.  The most reliable source of preservation is libraries, and they will not be there to help with this one.  So access for listeners 20 or 30 years from now is very much in question.

This question of the future should have great consequence for Maestro Dudamel and the orchestra.  Without libraries that can collect their recording, how will it be used in classrooms in order to teach future generations of musicians?  Those who study Berlioz and examine the performance history of the Symphonie Fantastique simply may not know about this performance by Dudamel and the LA Philharmonic.  That performance, regardless of how brilliant it is, may get, at best, a footnote in the history of Berlioz — “In 2013 the Symphonie Fantastique was recorded by the LA Philharmonic under the baton of Gustavo Dudamel; unfortunately, that recording is now lost.”  These licensing terms matter, and without due attention to the consequences that seemingly harmless boilerplate like “personal use only” can produce, a great work of art may be doomed to obscurity.

Superrights for textbooks?

This past week there have been a lot of angry blog posts about the new “Connected Casebook” plan from Aspen Publishers (Wolters Kluwer Legal Education) that would attempt to deprive students of their rights under the First Sale doctrine in U.S. law to resell the books that they buy.  Aspen publishes case books — the textbooks made up largely of court decisions that are fundamental to the teaching in U.S. law schools.  With this new program they are “offering” students allegedly perpetual access to an online version of the book with digital tools, but attempting to require that the print version of the book be returned after the class is over, even if it is marked up and annotated.  The idea, of course, is to undercut the secondary market for print textbooks so that each student will have to pay $200+ for a new book package.

Many folks have already critically examined the plan, so I will just offer some links to those earlier posts — from law professors Josh Blackman and James Grimmelmann, from the Electronic Freedom Foundation and from the Washington Post.  It is worth noting that Professor Grimmelmann began a petition that includes a pledge from law professors not to assign Aspen casebooks.

Since these blog posts were posted, Wolters Kluwer has responded with a letter in which they clarify their intentions, stating that the Connected Casebook program will be an option for students, but that they will still be able to elect to buy a traditional print textbook in which they will have the right of first sale, meaning that they can resell the book once the class is over.

In spite of this plethora of words about the issue, I have several comments I want to make.

First, just a reminder that these attempts to undermine the right of first sale are an effort from publishers to gain a sort of “super” property right.  No other property owner expects to be able to sell their product and still be able to prevent the purchaser from making a resale.  To see the absurdity of this, imagine if Ford tried to shut down the market for used cars by including such a restriction in a purchase contract; it would be a quick way to go out of business.  If Aspen really cannot survive in a market where resale is an option — this has been the case in the U.S. for its entire history, as well as in the rest of the world for a long time — it is probably time for them to shut off the lights and go home.

At least I suppose we should be grateful that Aspen says this will be only an option, not the sole way in which textbooks can be obtained.  They are saying that the digital bells and whistles that they will offer with the Connected Casebook program are carrots intended to lure students into surrendering their first sale rights, not sticks that will coerce them.  In that light, it is interesting to consider if it will work.  Studies suggest that the included digital links and things associated with many textbooks do not get used very much.  I wonder if the price will be the same for the traditional textbook, with a resale option included, and the “Connected” casebook, which has outlining tools and allegedly lifetime access to the digital edition, but requires the renunciation of first sale rights?  As Professor Grimmelmann points out, “we know from sad experience that gerbils have better life expectancy than DRM platforms,” so lifetime access is really not very likely.  In any case, case books become outdated really quickly, and the large secondary market (that Aspen wants to curtail) indicates that students are not very interested in lifetime access.

Perhaps this new program should be a teaching moment for law professors.  Licensing and contract law are relevant to nearly every legal subject, after all, so any class in which an Aspen Casebook is assigned might begin with an opportunity for students to reflect on the decision they are asked to make and to explain their ultimate choice.  The interplay of price, features, expectations and rights would make for interesting reflections, and students could begin to try to decide if the restriction requiring return of the book is actually enforceable.

Enforceability does seem like a issue here.  The basic idea is to have students buy a package — print book and digital access — then use the license for the latter to curtail rights in the former.  But our courts have looked very unfavorably on licenses that attempt to curtail first sale, in cases as old as Bobbs-Merril v. Straus (1908) and as recent as Kirtsaeng v. Wiley (2012).  It is true that the Ninth Circuit recently did enforce a license restriction on first sale imposed on software CD-ROMs, but in that case (which seems dubious given the two Supreme Court precedents mentioned above) at least the license was for the same, singular product.  I am pretty confident that courts would be more skeptical of the Aspen license, which attempts to negate a long standing public right in a format that is not traditionally governed by licensing terms at all through the licensing of a different format.  A court challenge to this would be very interesting and would raise the issue, as the EFF notes, of what the boundaries of a sale really are.  Certainly if the scheme were ever imposed as the only option for obtaining these textbooks, it would cry out for an action on the part of law students seeking declaratory judgment on the issue of enforceability.

The biggest takeaway from this controversy should be a reminder of the opportunity to create open educational resources that can avoid all of these silly and desperate efforts from publishers to maintain control even after the sale of a book.  No field is more amenable to open textbooks than law, after all, where the large majority of the content, the cases themselves, are in the public domain.  The licensing problems for online casebooks are greatly reduced, and there are consequently already some excellent examples of open online law texts, including Grimmelmann on Internet law and Herbert Hovenkamp (himself the author of an Aspen casebook) on Innovation and Competition Policy.  I would love to see many of the over 300 law professors who have signed Grimmelmann’s petition commit to creating open online case books in their own fields of expertise.  If that happened, the problem would go away very quickly, and the cost of a legal education would be significantly reduced.

We need to remember that this model for textbook “sales” is likely to spread.  The various strategies that publishers have used to try to undermine the secondary market for textbooks are various and ongoing, as the recent Kirtsaeng v. Wiley case illustrates.  Although it is never put this way, this is part of an overall sense from academic publishers that they are entitled to a larger share of the money that students spend on education.  These strategies would always have the effect of making education more expensive, so we need to remain vigilant for the next such effort and resist it on behalf of the students we serve.


So what about self-archiving?

There is a persistent problem with polemics.  When writing to address someone else’s position with which one disagrees, it is easy to lose sight of the proverbial forest for the trees.

In my previous two posts, I was addressing a misunderstand that I am afraid might lead authors to be less attentive and assertive about their publication contracts than they should be.  The specific issue was whether or not it is feasible to maintain that a copyright is transferred only in a final version of a scholarly article, leaving copyright in earlier versions in the hands of the author.  I argued that this was not the case, that the distinction between versions is a construct used by publishers that has little legal meaning, and that author rights that do persist in earlier versions, as they often do, are created by the specific terms of a copyright transfer agreement (i.e., they are creatures of a license).  These points, which I believe are correct, prompted a number of people to get in touch with me, concerned about how these specific “trees” might impact the overall forest of self-archiving policies and practices.

So now I want to make several points that all address one conclusion; this argument about the nature of a copyright transfer does not necessarily have any significant impact on what we do to enhance and encourage self-archiving on our campuses.  Most of the practices I am aware of already take account of the argument I have been making, even if they are not explicit about it.

On the LibLicense list today, Professor Steven Harnad, who is a pioneer in the movement to self-archive scholarly papers, posted a 10-point strategy for accomplishing Green open access.  Essentially, he points out that a significant number of publishers (his number is 60%) allow authors to self-archive their final submitted versions of their articles, and that those who have retained this right should exercise it.  Elsevier is one such publisher, about which more later.  Harnad argues that there are other strategies available for authors whose copyright transfer agreements do not allow self-archiving of even the final manuscript.  One option is to deposit the manuscript in a repository but embargo access to it.  At least that accomplishes preservation and access to the article metadata, and it facilitates fulfillment of individual requests for a copy.  Another option is to deposit a pre-print (the version of the article before peer-review) in a pre-print repository, which is a solution that has long worked well in specific disciplines like physics and computer science.

All of these strategies are completely consistent with the point I have been making about copyright transfer agreements.  Harnad’s model recognizes that copyright is transferred (perhaps improvidently) to publishers, and is based on authors taking full advantage of the rights that are licensed back to them in that transaction.  This makes perfect sense to me and nothing I have written in my previous two posts diminishes from this strategy.

One of the questions I have received a couple of times involves campus open access policies and how they affect, or are affected by, copyright transfers.  These policies often assert a license in scholarly articles, so the question is essentially whether that license survives a transfer of copyright.

It is a basic principle of law, and common sense, that one cannot sell, or give away, more than one owns.  So if an author has granted a license to her institution before she transfers her rights to a publisher, it seems clear that the license should survive, or, to put it another way, that the rights that are transferred to the publisher are still subject to this prior license.  There was an excellent article written in 2012 by law professor Eric Priest about this situation, and his conclusion is “that permission mandates can create legally enforceable, durable nonexclusive licenses.”  The article provides an extensive analysis of the legal effect of this “Harvard-style” license, and is well worth being read in its entirety by all who are interested in the legal status of Green open access.

An additional wrinkle to the status of a prior license is provided by section 205(e) of the copyright law, which actually addresses the issue of “priority between conflicting transfer of ownership and nonexclusive license.”  This provision basically affirms what I have said above, that a license granted prior to a transfer of copyright survives the transfer and prevails over the rights now held by the transferee, IF it is evidenced by a written instrument.  Because of this provision, some schools that have a license that is created by an open access policy also get a document from the author at the time of OA deposit that affirms the existence of that license.  Such documentation helps ensure the survival of a policy-based license even after the copyright is later trnsferred to a publisher.

Even when we decide that a license for Green open access exists and has survived a copyright transfer, however, we still have a policy decision to make about how aggressively to assert that license.  Many institutional practices look to the terms of the copyright transfer and try to abide by the provisions found therein, usually relating to the version that can be used and when it can be made openly accessible.  They do this, I think, to avoid creating an uncomfortable situation for the authors.  Even if legally that license they granted would survive the transfer of rights, if a conflict with the publisher developed, the authors (whom we are, after all, trying to serve) would be in a difficult place.  So my personal preference is to conform our practice to reasonable publisher policies about self-archiving and to work with authors to get unreasonable policies changed, rather than to provoke a dispute.  But this is a policy matter for specific institutions.

Finally, I want to say a couple of things specifically about Elsevier, since it was Elsevier’s take down notices directed against author self-archiving that began this series of discussions.

Elsevier’s policies permit authors to self-archive the final manuscript version of an article but not the published version, and, as far as I know, all of its take down notices were directed against final published versions on institutional or commercial websites.  So it is true that in my opinion, based on the analysis I have presented over the past week, that Elsevier is legally justified in this take down campaign.  It may well be a stupid and self-defeating strategy — I think it is — but they have the legal right to pursue it.  Authors, however, also have the legal right, based on Elsevier’s policies that are incorporated into their copyright transfer agreements, to post an earlier version of the articles — the final author’s manuscript(s) — in place of these final published versions.  So I hope that every time a take down notice from Elsevier that is directed against the author of the work in question is received, the article that is taken down is replaced by a  final manuscript version of the same content.

As many know, Elsevier also has an foolish and offensive provision in its current copyright transfer agreement that says that authors are allowed to self-archive a final manuscript version of their article UNLESS there is an institutional mandate to do so.  As I have said before, this “you may if you don’t have to but not if you must” approach is an unjustifiable interference with academic freedom, since it is an attempt to tie faculty rights to specific policies that the faculty themselves adopt to further their own institutional and academic missions.  Elsevier should be ashamed to take this stance, and our institutions that value academic freedom should protest.  But based on what has been said above, we can also see how futile this approach really is.  If the institution has a policy-created license, that license probably survives the copyright transfer, as Eric Priest argues.  In that case, the denial of a self-archiving right only in cases where a license exists is meaningless precisely because that license does exist; authors could self-archive based on the license and do not need the grant of rights that Elsevier is petulantly withholding.  I said above that institutions should consider whether or not they want to provoke disputes by relying on the prior existence of a license to self-archive.  Elsevier, however, seems to have decided to provoke exactly that dispute with this provision, and they are even more unwise to do so since it is likely to be a losing proposition for them.


The problem with permission

Because Duke has begun teaching Massively Open Online Courses (MOOCs), my office has gotten much more involved, over the past year, in the process of seeking permission to use copyrighted content.  We began a new service to help MOOC instructors make careful fair use decisions, find freely-licensed content for their courses, and get permission for materials where we deem it necessary.  The story of the first year of that service is told in this article that has just been published by D-Lib Magazine, written by Lauren Fowler, our first permissions intern, and me.

From the perspective of one asking a rights holder for permission to use some content, the process has a lot of frustration, some of which we detail in the article.  The most common frustration, as many people have discovered, is that so many rights holders simply do not respond.  They are not obligated to, of course, but even a simple “NO” would save lots of wasted effort and time on both sides of the exchange.  Yet a significant number of rights holders do not even send that; in our article we note that 23.5% of our requests garnered no reply at all, even after several contacts.

Sometimes, however, it is even more frustrating to receive a reply, because those answers often confirm that we are not dealing with a well-managed or carefully-administered process.  Frequently when we do get a response, what we hear back clearly indicates that the staff member who contacts us is unaware of what we have actually asked.  We have a carefully written request letter that is very clear about exactly the use we intend to make of the work if permission is granted, yet over and over the rights holder’s staff replies with inapposite questions or, amusingly, a grant of permission to do something else entirely.

One example can illustrate this humorous frustration.  Shortly before she left to take up a full-time library job, Ms. Fowler sent a letter to a major motion picture studio because one of our instructors wanted to use an illustration from a movie in a way that was probably fair use but for which we decided to ask permission, since it is a well-known picture and MOOCs are receiving so much attention and such large participation.  We got back a very nice message from a permissions rep saying that “the attached letter should cover your use.”  Unfortunately, the attached letter was a painstaking, though inaccurate, description of the exception for the public display of a copyrighted work in the course of face-to-face teaching.  I reviewed our multiple requests, and it seemed impossible not to understand that we were asking about an online use.  Yet we were told that a letter about physical classroom use, for which permission is not even required, would serve our purpose.  This left us at loss about how to proceed; we didn’t really have the needed permission, but it seemed like the rep was trying to grant it.  Maybe she just attached the wrong form letter.  So what do we do, as the time to make decisions about course content grows short?

It is certainly possible to conclude from the experiences we have had, which many others have also reported — see Susan Bielstein’s wonderful book on “Permissions, A Survival Guide” — that large rights holders simply are not interested in giving permission, or even in asking for permission fees.  The experience seems to confirm what the judge in the Georgia State case held in her ruling, that permission income is simply not that vital for most rights holders, so they invest very little time and energy into processing permission requests.

But recently I have dealt with two requests from the other side — requests directed at Duke from two large textbook publishers for permission for them to use content putatively owned by us in books they were publishing.  Astonishingly, the same laissez faire attitude seems to prevail when the big content company is doing the asking as it does when we are seeking permission from them.

In the first instance, a big textbook publishers sent an e-mail asking for permission to reuse an image, and a high-res scan of the image, to the Coordinator of Academic Support in our Office of Information Technology.  That person was clearly mystified — she is not engaged in IP issues or rights in any way — so she got in touch with me.  I could see very clearly that the image in question had been published by the Duke University Press, so we were able to redirect the request.  But we had to do the research (which was easy) because the company did not bother.

When this request finally reached the correct folks at Duke Press, they were shocked at the shoddy effort that the textbook publisher had made.  Even with more limited resources, I know from experience that DUP does much better work.  But the folks at the Press were inclined to see this as isolated incompetence on the part of a company with, it seems, a less than stellar reputation.  Unfortunately, the very next day I received confirmation that the problem is not isolated at all.

Yesterday I received a similar request from a different major textbook publisher.  It was directed to me, which is perhaps a little more sensible than selecting a random person from IT; I get these types of requests quite often, and routinely try to direct them to the right office.  But this one was especially difficult, because it just attached a scan of a page from a published work, and asked for permission to use “the attached.”  The request gave us no idea of where the page had been originally published, what part of that page was the focus of the request, or why the request had been sent to Duke in the first place.  An email to the publisher rep who sent the initial message told us that they were seeking permission to use only a single sentence quotation from the page, which is absurd.  And the request apparently came to us because of a connection between the publication and one of our collection centers.  So I forwarded it to the collection curator, but shook my head as I did so at the bumbling way these and so many other requests from permission come to us from those who yell loudest about the need to base our copyright system on permission.

It is hard not to conclude from these and similar experiences that the publishers sending the requests are not really interested in contacting the correct rights holder or in defining an appropriate scope for a license  They appear to simply be trying to collect paper — any message or letter that says the use is OK is sufficient to be filed away and forgotten.  From the other side, when we make a request for permission the same attitude prevails.  Little effort is made to accurately understand the request or craft an effective license.

Permission from a rights holder can solve many problems; it is an important part of a complete IP rights strategy in the digital environment.  But it is not a process for the faint of heart, nor a solution to be suggested lightly.  Even large professional publishers seem to find it overwhelming or, perhaps, not worth the investment of staff time and effort.  So when, in debates or litigation over copyright issues, rights holders groups assert that permission is the best solution and copyright exceptions should give way to a licensing process, we need to counter those claims by telling these sorts of stories.  Many of us can recount similar instances, and also catalog teaching opportunities that have been lost because permission was simply not available.  Judges and legislators need to know about these problems with permission, because they reenforce the wisdom — the necessity — of building exceptions into copyright and not relying on the whims and dubious competencies of rights holders to manage a permissions-based culture.

Is the CCC having an “Instagram” moment?

As many readers will know, the past few weeks have seen a couple of controversies over end user license agreements (EULAs) and Internet services.  In the library world, Yankee Book Peddler, an order fulfillment service, announced that they would introduce such an end user license whenever someone logged in to their ordering database.  The license terms included indemnifications and submission to the law of New Hampshire.  Both of these terms are impossible for most public institutions, and there was a lot of outcry.  Eventually, YBP withdrew its plan to introduce the EULA.  Then, earlier this week, there was a lot of controversy when Instagram announced that its new license would gave it the right to sell photos uploaded by subscribers, even for commercial purposes like advertising.  Again there was much consternation and an eventual repudiation of its earlier position from Instagram.

The use of EULAs for academic services instead of negotiating terms with each customer is especially problematic.  For one thing, those licenses often contain terms that are unacceptable and, for public institutions, may be invalidated by state laws and regulations over purchasing by state entities.  Worse, the EULAs are by definition required as a condition of use, meaning that the staff members who actually accept them are seldom the employees who actually have the authority to bind a university to a contract.

These considerations were in my mind when our e-reserves specialist informed this week about “new” licensing terms he had encountered when placing a request for a permission license with the Copyright Clearance Center.  A two and a half page set of terms was suddenly appearing with each order confirmation, and they contained a lot of the same troubling assertions that we saw with the proposed, but never implemented, YBP license.  Institutions indemnify CCC and agree to defend them against claims arising from any use outside the scope of the license.  Institutions agree to the application of New York law and the jurisdiction of New York courts.  Most distressing, each institution that uses the CCC agrees that that organization, which has been active in financing the legal case against Georgia State University, has the right to access and audit university records, which is not only a possible violation of our obligations under FERPA, but also seems like giving a potential adversary free pre-litigation discovery rights.

As with the proposed YBP license, several of the terms in this EULA are impossible for most public institutions, which usually cannot agree to indemnifications — because they could create an uncontrolled drain on taxpayer dollars — or submission to the laws and jurisdiction of another state.  Even for private institutions, which are not forbidden by law from agreeing to such terms, the license contains things we would try to negotiate around if the CCC had engaged us at the enterprise level rather than simply imposing these terms for acceptance by employees not actually empowered to do so.

Since I first learned about these terms on Tuesday, it has become less clear to me that they are actually new.  It turns out that our e-reserve employees have been clicking through an “accept the terms and conditions” box when they place orders with CCC for some time.  It is likely that other campus employees, including administrative assistants for departments, have done the same thing.  I simply do not know if these terms that suddenly appeared on the order confirmation are new, or just a more assertive way of making the older terms known.  In asking around, I discovered that at least one state university encountered and objected to similar terms several years ago, and negotiated separately with the CCC to arrive at a different agreement that supersedes any terms agreed to at end-user level.

My immediate reaction to these terms is that many of us will want to have similar negotiations to supersede this EULA, and that all of the CCC’s public customers will have to do so.  These terms might simply be invalid as a matter of state law for some public institutions, and they could be objected to by many other CCC customers on the basis that the end-users who must click through the license simply lack the authority to commit their employers to those terms.

For the record, I do not yet know what my own institution’s reaction will be; I have scheduled a conversation about the CCC terms with our Office of University Counsel.  But it still seems important to share the information about this new manifestation, at least, of terms that may well be unfamiliar to those folks who are actually responsible for contracting and purchasing decisions at their institutions.

I would be interested to hear from institutions that have already attempted to negotiate directly with CCC to supersede these terms.  I hope the comments to this post fill up with the news that others are way ahead of me and have acted to prevent the problems this license seems to cause.

Finally, I wonder what impact these licensing terms could have on a fair use argument, especially in light of the ruling by Judge Evans in the Georgia State case.  In that ruling, the Judge held that the fourth fair use factor, impact on the market for the original, favored the publisher (and so weighed against fair use) IF a license for the digital excerpt (not simply a license for another format) was “readily available at a reasonable price” (pp. 72 – 81 of the opinion).  My question is, could the licensing terms imposed by the CCC have an effect on whether or not the license is “readily available.”  If a public institution, including, possibly, Georgia State, is prevented by state law from accepting terms like the ones included in each permission transaction from the CCC, can that permission really be said to be readily available?  How can something be readily available if it is conditioned upon acceptance of an agreement that the institution is not allowed to accept?  And if such a license cannot really be considered readily available, how dramatically does that impact the fair use analysis, especially in those cases where a publisher will not accept permission requests except through the CCC?

As I say, we are still deciding what these licensing terms, whether they are brand new or of long-standing, mean for our business with the CCC.  But it seems likely that for some institutions, at least, these terms make the use of that permission service an impossibility unless they negotiate a superseding agreement.  And for many of the rest of us, this added roadblock will cause us to rethink where and when we can purchase licenses, and when we must rely on fair use simply because we have no other feasible alternative.