PREFACE — On Friday morning I wrote two blog posts. One, about whether libraries should stop buying materials from the publishers that are suing Georgia State, I posted right away. The other, about the amicus brief filed in that case by two former Registrars of Copyright, I saved and intended to post today. But yesterday I discovered that Mike Masnick at TechDirt had posted his own wonderful column on the same subject. I never mind being “scooped” because these are important issues and more discussion is always better than less. But in this case I realized that Mike had said quiet well everything I had planned to say. I decided to post my comments anyway in hopes of reaching an even broader audience, but interested readers should follow the link to Mike’s post first. What follows below is only for comparison or for the entertainment of the truly dedicated.
In an earlier post about the Georgia State University e-reserves case, I mentioned the unfortunate revolving door that seems to exist between the Copyright Office and other executive-branch IP advisers and the entertainment industries. Many officials who advise the government on copyright policy are former executives or lawyers for big media, which results, inevitably, in a very one-sided view of the issues.
A recent “friend of the court” brief filed in the GSU case has provided a very relevant and troubling look at what the world looks like on the other side of that revolving door. It was filed by two former Registrars of Copyright, Mary Beth Peters and Ralph Oman, in support of the publishers who are suing Georgia State, arguing that the judge in the trial court was pretty thoroughly wrong in her analysis, which found that a large majority of the excerpts challenged as potential copyright infringement were, in fact, fair use.
There is really very little in the argument made in the brief that need detain us for long. Its principal contention is that Congress never intended fair use to be used to give broad support to non-commercial educational uses. Basically, they say the court erred by giving too much weight to the non-commercial educational nature of the use that the publishers are challenging. To make this unconvincing argument, they resort to lots of arguments that concede that the law appears to say something, then assert that its apparent meaning is not really what was meant at all. They resort to legislative history to show that Congress rejected the idea of a specific exception for educational use, which is quite true, and try to claim, from that fact, that fair use cannot be seen as a broadly-inclusive exception for education. Of course, the opposite argument is more plausible, that Congress rejected the specific exception precisely because they thought fair use was the better way to accomplish the same purpose. And legislative history, as any law student knows, is only useful in statutory interpretation when the plain language of the law is ambiguous. Since five of the six paradigmatic purposes in section 107 are educational functions, including “multiple copies for classroom use,” and since the section specifically mentions “non-profit educational use” as a key to the first factor analysis, the language seems pretty unambiguous. So the desperate resort to a twisted view of the legislative history would seem to be unavailing. Likewise when they argue the the Supreme Court, in the Campbell case, required that only transformative uses be considered fair; they acknowledge that the Court explicitly said that the most obvious exception to this analysis was those “multiple copies for classroom use,” but try to argue that the Court really did not mean it.
The goal of these contortions is to assert that the only proper analogies for the GSU case are the “course pack” cases that ruled that commercial intermediaries must pay licensing fees when they make course packs at the request of faculty members and sell those course packs to students. The two former registrars want to argue, implausibly, that the distinction between that situation and a wholly non-commercial situation where there is no profit being made, no charge to students, and no commercial intermediary is irrelevant.
What is most interesting about the brief, however, is that the two former registrars, when they make the required “statement of interest” telling the court why they are approaching it to render an opinion on the issue, do not see fit to mention that one of them is a current board member of the Copyright Clearance Center, and the other a former member of that same board. The CCC, of course, is helping to fund the lawsuit and is probably the single entity that has the most to gain, financially, if the Appeals Court reversed the lower court’s decision. Presumably because the CCC is not actually a party to the case, Peters and Oman are not required, I imagine, to disclose their relationship with it. They do reveal, in a section called “Corporate Disclosure Statement,” that the costs of preparing the brief were underwritten by major publishers like Elsevier and John Wiley, but nowhere do they state that they have or have had compensated positions (I presume) on the CCC board.
This is precisely the revolving door that troubles me, and the skewed perspective represented by this brief confirms my worst fears, that the public interest gets lost in the back and forth employment between industry and the Copyright Office.