Another day, another silly brief filed in support of the plaintiff publishers in the Georgia State copyright infringement appeal. This one comes from the American Association of University Presses (AAUP). I wish it were not the case, but I am past being shocked that university presses are so anxious to support a lawsuit against universities, and one that, if successful, would significantly increases costs for students and/or diminish the funds available to buy materials from university presses. The short-sighted thirst for more dollars from university budgets and an overall blindness to the big-picture best interests of higher education has long been the fundamental characteristic of this lawsuit.
Many of the arguments in the AAUP brief are familiar from the other briefs. It should not matter that the copying complained of was non-commercial and for educational purposes. The course pack cases (which all involved commercial intermediaries who made the copies and sold the course packs) are perfect analogies to the present situation in spite of the factual differences. The judge also erred, apparently, by inquiring into the factual character of each challenged use of an excerpt instead of recognizing that the publishers just don’t like fair use, except when they benefit from it, so factual inquiries are irrelevant. All of this we have heard before, and I am tired of writing about it.
But while reading this brief, and the press release the AAUP issued about it, it struck me that there are things we can learn about this case by making comparisons to the famous Supreme Court case of Sony v. Universal Pictures, in which the Court decided that consumers making temporary copies of television broadcasts on the “new” video recording devices then being market was fair use (and therefore did not find Sony guilty of contributory infringement for market the devices). One argument in particular made by the AAUP reminded me of Sony and the lesson we should learn from it.
We have frequently heard the complaint that the judge missed the forest for the trees in the GSU case. That is, she focused too much on the specific excerpts that were being challenged and failed to appreciate the scope of the harm that the overall practice of e-reserves would allegedly do to publishers. In the AAUP brief, this argument appears as an objection to the way Judge Evans analyzed market harm, the fourth fair use factor. The complaint is that she looked at figures for permission income for each book in question, which she found to be “negligible” in most cases, and did not look more broadly at the overall importance of permission income generally to university presses. In their press release the AAUP calls Judge Evans’ analysis “niggling.”
So now let’s consider Sony. In that case, the plaintiffs were faced with a much more massive threat of unauthorized copying. Entire works were being copied, rather than just 10% or a single chapter of each work. And the potential market harm was even greater, since the TV and movie studios were afraid that there advertising revenues would drop sharply if millions of Americans began taping their favorite shows rather than watching them when the executives and their advertisers expected them to. Surely fair use could not sanction such a massive and pervasive threat. And yet it did. The Court did not even do the level of financial analysis that Judge Evans did in the GSU case. Justice Stevens, in Sony, simply considered the overall situation — individual consumers who used the VCR to “time-shift” for more convenient viewing — and, finding it was fair use, dismissed wholesale the concern for the alleged market harm that would occur if each of those individual consumers each exercised this fair use right. If Judge Evans was niggling in her assessment of market harm, the Supreme Court was downright uninterested in Sony.
What we learn from this analysis is that fair use represents a boundary on the rights held by a copyright owner. Market harm is a factor to consider, but when a use is clearly fair use — as these uses of 10% or less of a work were found to be, even in some instances where the Judge felt that market harm factor counted against the fair use argument — the assertion that one could still have squeezed some more money out of those uses will not be heard. After all, I could make some money by charging pedestrians to walk on the sidewalk that crosses my residential property, but society has simply decided that I will not be allowed to do that; the easement for a public right of way that allows sidewalks functions as a boundary, of a sort, on my property right. And in any case, the assertion that a license fee might have been earned, even when the rights holder is not in fact collecting such a fee or depending on it, could always be used to undermine fair use; many courts have recognized this circularity and refused to let it be determinative of fair use questions.
The confusion that reigns when one is swept away in this whirlpool of circularity is nicely illustrated by this howler for the AAUP brief:
Further, one of the key reasons that permissions income is low is that some universities have failed to pay required permissions fees for their electronic coursepacks. Publishers should certainly not be penalized because of the universities’ failure to pay them the permissions to which they are entitled by law.
Neat, isn’t it? The small amount of permission income that we actually get, and its consequent minor impact on our business, should not be considered in the fair use analysis because it would be higher if it weren’t for this pesky fair use thing. We could make more money without fair use, and therefore that money should be taken into account when deciding whether or not something is fair use. A truly bizarre argument that is only possible when one fails to recognize that all property rights, including rights over intellectual property, have to have boundaries.
As these briefs have been filed, and the weakness of the plaintiffs’ arguments on appeal have been revealed, I have gained new respect for the careful and thorough nature of Judge Evans’ original decision. I do not entirely agree with her on every point, but she did her job very well. The appeal, it seems to me, is looking more and more desperate.
That reflection leads me to end this post on a different, but related, topic. In a recent article about a meeting of the the Professional and Scholarly Publishing Division of the Association of American Publishers, Blaise Simqu, who is President and CEO of Sage Publishing, one of the GSU plaintiffs, is quoted as saying this in a speech:
Publishers are, for the first time, having to care about the end user, and that’s a huge cultural shift
Libraries represent and serve a significant portion of Sage’s end users, and the statement that publishers would like to know more about us is good news. It often feels like publishers think of libraries as massive infringement factories, full of irresponsible pirates who are just waiting for a chance to digitize everything and give it away for free on the Internet. In fact, it is usually the library on a college or university campus that is teaching and advocating for responsible copyright practices. And our digitization decisions are made very carefully, partly out of respect for copyright and partly because the process of digitization and online access is costly. I think we would like very much to sit down with Mr. Simqu (I have actually had that pleasure) and his counterparts to talk about how we see our mission and why we take the positions about copyright that we do. But there is a huge obstacle in the way of such frank and open discussions, in the shape of the ongoing lawsuit against Georgia State. If Mr Simqu now realizes that he needs to care about libraries, a great first step would be to drop this appeal.