Monthly Archives: May 2014

Copyright Issues and Legislation, Fair Use, international IP, Technologies

Copyright roundup 3 — Changes in UK law

In this final installment of the copyright roundup I have been doing this week, I want to note some remarkable developments in the copyright law of the United Kingdom, where a hugely significant revision of the statute received final approval this month and will be given royal assent, the last stage of becoming law, in June.

Readers may recall that the UK undertook a study of how to reform copyright law in ways that would encourage more innovation and economic competitiveness.  The resulting report, called the Hargreaves Report, made a number of recommendations, many of which were focused on creating limitations and exceptions to the exclusive rights in copyright so that the law would work more like it does in the U.S., including the flexibility provided by fair use.  The final results of this legislative process do not include an American-like fair use provision, but they do result in a significant expansion of the fair dealing provisions in U.K. law to better accomplish some of the same things fair use has allowed in the U.S.

Fair dealing is found in a couple of provisions of the British law and allows certain specified activities if those activities are done in a “fair” manner, with specified criteria for fairness.  Until now the categories have been narrow and few, but Parliament has just expanded them dramatically.  A description of this expansion from the Charter Institute of Library and Information Professionals can be found on the CILIP site.  A number of activities that are probably permitted by fair use in the U.S. are now also encompassed by fair dealing in Britain, including private copying, copying by libraries in order to provide those copies to individual users, and some significant expansion of the ability to make copies for the purpose of education.

On this last point, I wonder if the two British university presses that are suing a U.S. university over educational copying have noticed that the tide is against them even at home.

There is an explanatory memo about these changes written by the U.K. Intellectual Property Office available here.  It is interesting to see how certain goals that have been accomplished by the courts in the U.S. and, importantly, in Canada are now intentionally being supported in this British legislation.  As I say, we are seeing a fairly strong international tide pushing towards expanded user rights in the digital environment, lest legacy industries use copyright to suppress economic development in their anxiety to prevent competition.

Several points about this legislative reform seem especially important to me.

First is the emphasis in several of the new provisions on supporting both research with and preservation of sound recordings and film.  This is one of several places where the U.K. may reasonable be said to have just leapfrogged over the United States, since the provisions about non-profit use and preservation of music and film remain a mess in our law.

Second, the British are now adopting an exception for text and data mining into their law.  This is huge, and reinforces the idea I have expressed before that libraries should be reluctant about agreeing to licensing terms around TDM; the rights are likely already held by users in many cases, so those provisions really would have the effect, despite being promoted as assisting research, of putting constraints (and sometimes added costs) on what scholars can already do.  This is probably true in the U.S., where fair use likely gets us further than vendor licenses would, and it has now been made explicit in the U.K.

Another major improvement in the U.K. over U.S. copyright is the fact, explained in the CILIP post, that

[M]any of these core “permitted acts” in copyright law given to us by parliament all not be able to be overridden by contracts that have been signed.  This is of vital importance, as without this provision, existing and new exceptions in law could subsequently simply be overridden by a contract. Also many contracts are based in the laws of other countries (often the US). This important provision means that libraries and their users no longer need to  worry about what the contract allows or disallows but just apply UK copyright exceptions to the electronic publications they have purchased. 

This type of approach is desperately needed in the U.S.  If we truly believe that the activities that are supported by core exceptions to the rights under copyright, like education, library services and fair use, are beneficial to society and part of the basic public purpose of copyright, they should remain in place regardless of provisions inserted into private law contracts.  Now that the British have made this acknowledgement, it is time for the U.S. to catch up.

Competitiveness is often an important part of the discussion over copyright law.  Rights holders argue that terms should be lengthened and enforcement improved in order to enhance competition with other nations.  The U.K. began its copyright reform process in order to improve its ability to compete for high-tech business.  And this new revision of the British law puts the U.S. back in a situation where we must continue to strengthen not the rights of legacy industries but the rights of users — which is where innovation will come from — because other parts of the world are moving past us in this area.  How to we do this, in the two key areas I have identified?  In the area of the right to mine text and data for non-profit research purposes, this is something our courts can do, through interpretation of the fair use provision.  We can hope that such an opinion might appear in the near future, although I am not aware of what case might prompt it.  But contract preemption is something that Congress will have to address.  If the U.S. Congress is serious about copyright reform, and really wants to help it to continue to be a tool of economic progress in the U.S., they should put the issue of making user rights exceptions impervious to contract provisions that attempt to limit or eliminate them at the top of the legislative agenda.

Copyright Issues and Legislation, Fair Use, Orphan works

Copyright roundup 2 — Orphan Works

Recently the Copyright Office has held a series of roundtable discussions and comment periods on the subject of orphan works.  As seasoned readers will know, this has become a kind of movable feast, happening at regular but unpredictable intervals.  My suspicion is that the CO is under a lot of pressure from big rights holder groups to find some way to impose a collective licensing scheme for orphan works, and these periodic discussions and reports are an effort to stave off the importuning of the lobbyists.  Certainly Congress has shown very little interest in adopting an orphan works “solution,” and as more and more courts recognize that fair use can move us a long way towards productive uses of orphaned works without introducing the “tax for nobody” that would be imposed by an extended collective licensing scheme, that appetite is likely to decline even further.

Because the events seem to have so little payoff, I admit that I allowed the pressure of other work to cause me to largely ignore this iteration.  In the past I have helped Duke and other organizations prepare comments, but this time I left the heavy lifting to colleagues.  Fortunately their is a growing cadre of people able to advance the arguments in favor of fair use and the best ways to deal with the immense problem of orphan works, so my neglect was trivial.  But I still want to help my readers find some of the best commentary from this latest round of discussions.

From what I have heard, at least one of these roundtables generated a lot more heat than light, featuring some shouting and at least one direct threat of litigation from a rights holders’ representative.  But apart from the circus atmosphere, substantive issues were discussed, and a great summary of the more mature parts of the conversation can be found in this post from the ARL Policy Notes blog.

For the library community, the strongest support we get in these events comes from the superb work of the Library Copyright Alliance, which is supported by the ALA, the ARL and the ACRL.  The full set of comments prepared by the LCA and submitted on behalf of our profession is a wonderful introduction to the problem, why it matters so much to libraries, and the directions from which a solution might come.

Perhaps the most important result of this discussion, building nicely on the LCA comments, is this great set of comments about myths and misstatements regarding fair use.  These events sometimes seem like mere opportunities for lobbyists to tell tall tales to Congressional staffers and bureaucrats, and it is often necessary to try, after the fact, to set straight a very crooked record.  On the issue of fair use, Brandon Butler, Peter Jazsi and Mike Carroll, all from American University, do a great job of correcting the erroneous things that were said in these public events.  Their comments offer a clear vision of fair use as a coherent and reliable doctrine that has evolved logically over time, continuing to perform its core function even in periods of rapid technological change.  This is a great statement and should be required reading for every librarian and academic.

One sentence summary of the comments; fair use is neither unpredictable nor incoherent, as some have argued, but is an evolving doctrine that is relied upon safely by millions of ordinary people and can provide a strong foundation for the careful consideration of even mass programs of digitization.

Finally, as I said above, one of the purposes of these regular events seems to be to try to stumble towards an extended collective licensing scheme that Congress might consider, even though these schemes impose an unnecessary tax on users without benefiting legitimate rights holders and have not worked well in the nations that have tried them. These comments about ECL schemes from the Electronic Frontiers Foundation are also worth reading. They do an excellent job of briefly explaining the broad consensus that ECL is a poor solution to the orphan works problem.

 

Copyright Issues and Legislation

Copyright roundup 1– the Supreme Court

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Last week the U.S. Supreme Court ruled in a copyright case, and I want to make readers aware of it, but also point out that it is likely to have little impact on libraries. In Petrella v. MGM Studios, the majority of the Court, in an opinion written by Justice Ginsburg, held that the equitable doctrine called “laches” cannot be used to stop a rights holder from bringing a lawsuit even where she has delayed her filing for twenty years. Laches is a judge-made doctrine that prevents people from “sitting on their rights” unreasonably, especially where the delay is prejudicial to the defendant. In this case, however, the Court held that the scheme built into the copyright law — a very long term of protection but a three-year limitation on recovery for infringement — adequately accounts for the risk of delay.

The facts of the case are odd.  Ms. Petrella owns all of the rights in the screenplay for the movie Raging Bull, and has done since she inherited from her father in 1981. She renewed the copyright in 1991, and first informed MGM of her rights seven years later, in 1998.  She did not file suit for infringement until 2009. MGM argued that she waited too long, that she had delayed in order to bring suit when it would be most lucrative to her and financially difficult for the studio, and that important evidence had become unavailable due to the delay.  For all these reasons the lower courts dismissed her lawsuit, relying on the equitable doctrine of laches. But the Supreme Court reversed, saying that the structure of the copyright law itself anticipated and accounted for delay. Petrella is entitle to recover for infringements that occurred in the three years prior to her lawsuit, if she can prove infringement, and the district court must give her that chance.

The Court’s opinion is very pedagogical in its approach, providing a clear account of the four major doctrines in play in its first section.  That portion, at least, is worth reading because it explains some obscure doctrines quite well. I am interested here in one specific part of the copyright law related to the case, the idea of a rolling statute of limitations. As Justice Ginsburg notes, the term of protection is very long, and if a rights holder could sue anytime for acts that occurred many years earlier, the result would be a tremendous amount of litigation and some manifest injustice. So the law provides this three year window. A rights holder can, apparently, bring a lawsuit whenever she wishes, but can recover damages only for infringing acts that occurred within the three years immediately prior to the litigation.

Imagine, as an example, that I wrote a book that infringed the copyright of a famous author.  My book sold poorly, but, freakishly, one copy per month was sold every month for five years. At the end of that time, famous author sues me.  That suit can recover damages only for the 36 infringements that occurred in the previous three years (one infringing copy sold per month in those three years).  The 24 copies sold in the two earlier years are outside the window created by this rolling statute of limitations, so famous author cannot reach back to include those infringing acts in his lawsuit. By contrast, if my infringement had been a single unauthorized public performance of famous author’s work, about which he knew when it took place, but he waits four years to sue me, he will be entirely out of luck. That single act of infringement (as opposed to the ongoing sales in my first example) took place too long before the lawsuit and is outside the window of the statute of limitations.

One thing this case reminds us is that copyright issues make for strange alliances.  As usual, the split in the Court is not along usual liberal v. conservative lines.  Scalia, Thomas and Alito join Ginsburg, Kagan and Sotomayor in the majority opinion, while Roberts and Kennedy join Breyer in his dissent. One thing that is consistent is that Breyer and Ginsburg have very different views about copyright, and they are usually the opinion authors on the two sides of any copyright issue that comes before the Court.  Another oddity is for a major motion picture studio to be arguing in favor of a limit on rights holders’ ability to recover for infringement. The application of laches, had their argument been upheld, would almost certainly have come back to bite them. Their defense of laches as a limitation on the right to sue even for infringing acts that occurred with the three year statute of limitations in this peculiar case seems to have been a matter of pure opportunism.

In her opinion, Justice Ginsburg makes one remark that is rather striking and represents a new approach for the Court.  She is defending the option of a rights holder to delay her lawsuit for a variety of reasons, including, as in the Petrella case, to see if the recovery would be worth the cost of suing.  But this is what J. Ginsburg says:

There is nothing untoward about waiting to see whether an infringer’s exploitation undercuts the value of the copyrighted work, has no effect on the original work, or even compliments it. Fan sites prompted by a book or film, for example, may benefit the copyright owner.

I don’t know that the Court has every before acknowledge that infringements might be beneficial to rights holders. Perhaps this is an acknowledgement of the myriad potential for reuse and remix. Certainly the authors of fan fiction should feel buoyed by the remark. From a more technical perspective, it seems to me to further undermine what was once a strongly held belief that whenever infringement was found, harm could be presumed.  It seems clear that the Court is now reinserting harm as a separate element in the plaintiff burden of proving the tort of copyright infringement.

Although I am usually more often on Justice Breyer’s side on copyright issue than Justice Ginsburg’s, in my opinion the majority opinion seems right given the particular circumstances of the case, and the way the statute is constructed.  In his dissent J. Breyer asserts that the majority is now “erasing laches from the copyright lexicon,” but it is not clear to me that that is the case.  J. Ginsburg acknowledges some extraordinary cases where laches would still apply to bar a lawsuit over copyright infringement, but she does not find such circumstances in this case.  And although J. Breyer is persuasive in the suggestion that laches does still have a place, it is not clear that the Petrella situation presents such circumstances, and he really does not argue that it should.

For routine library practices this case will have relatively little impact.  Libraries try hard to avoid infringement, of course, and, when challenged, they have strong defenses built into the statute, so they need rely less on equitable defenses like laches.   As I said above, the main value of this opinion may be an opportunity to be reminded of the doctrines surrounding when a lawsuit can be brought and when it would be untimely.  But it also raises the possibility, albeit obliquely,  that a defendant could argue that there has been no harm from the infringement and even that the added distribution of the work has supported its commercial value.  Since Judge Chin made this argument in his dismissal of the Google Books lawsuit brought by the hapless Authors Guild, even oblique support from the Supreme Court is significant.

Authors' Rights, Scholarly Publishing

Why I joined the Authors Alliance

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A new organization for authors, called the Authors Alliance, is launching today (May 21) with a reception in San Francisco at the headquarters of the Internet Archive.  I cannot attend, but a couple of weeks ago I responded to an invitation and became a founding member of the Alliance; I also made a small financial contribution to help the group get off the ground.  This seemed like an obvious move to me.  Why shouldn’t academic authors, as well as the multitude of others who write for reasons not directly linked to commercial sales, have an organization that represents their interests?  Surely the idea of (mostly) academic authors organizing to further their own interests is not controversial.

But after I joined the Authors Alliance, a colleague sent me a link to an amazing, apparently distraught blog post on the website of the Authors Guild that seems to be warning AG members about the dangers posed by the Authors Alliance.  Although the author of the post, a successful author of biographies named T.J. Stiles, affects a tone of calm, his misinformation and efforts to sound contemptuous make it very clear that the Alliance is perceived as a threat by the AG.  Which, of course, is an additional argument for signing up.

Throughout his post, Stiles talks about the Alliance as an organization for people who want to “give away” their work.  He sarcastically suggests that,

If you think, in our digital age, that the biggest problem facing authors is how hard it is to give your work away for free, it’s for you. If you think you’ve got too much power over people who copy and distribute your work without your permission, by all means sign up.

This, of course, is a profound misunderstanding of the situation of academic authors.  Under the current system, academic authors are almost always required to give away their work for free to publishers, who then sell it at a profit.  Stiles, who worked for years for Oxford University Press, ought to know this.  The “power over people who copy and distribute your work” is all held by these publishers, who become the copyright holders once academic authors sign transfer agreements as a condition of publication.  One reason for joining the Authors Alliance is precisely so that academic authors can retain more control and give away less.

In his desperation to say bad things about this new organization, which has yet to take any positions or actions as a group, Stiles is even willing to contradict himself.  He refers to the Alliance as “an astroturf organization. It was not organized by authors, nor is it governed by them. The four directors are Berkeley academics.”  But in other places he acknowledges the obvious fact that academics are authors; they are just supported by a different financial model than that to which the Authors Guild myopically clings.  Make no mistake; the Authors Alliance is organized and governed by authors in order to represent the interests of authors.

Stiles goes on to assert some of the putative stances the Alliance might take, although he acknowledges that it is too early to know for sure.  Instead, he just extrapolates based on gross exaggerations of some of the academic arguments made by Alliance board members, especially Professor Pam Samuelson.  For example, based on arguments for a digital first sale right, he makes the absurd claim that the Alliance would want a world where “anyone could become a publisher of your book,” based on the idea that resale would always involve copying.  Stiles carefully ignores the fact that all such discussions, to my knowledge at least, advocate for a “forward and delete” regime that would replicate the physical first sale right that has been part of U.S. copyright law for over a century.  Likewise Stiles claims that members of the Alliance board have advocated for “allowing potentially unlimited copying for educational uses.”  If so, I have never heard them.  What I have heard, and advocate for, is a fair use right — again part of our law for more than 170 years — that works for education in those cases where it does not threaten the commercial sales of the works.  That, in fact, is exactly what Judge Chin evoked when he ruled against the AG in their lawsuits against the Google Books project.

Stiles’ essay is an exercise in fear-mongering and, when he begins to cite the salaries paid to some of its academic founders, a rather petulant envy.  Since he has spent a lot of space offering fictionalized reasons that one might join the Authors Alliance, let me close by citing two that were specifically important to me when I decided to join.

First, it has the potential to be far more representative of authors as a whole than the Authors Guild is.  It is the AG that is really a niche organization, representing, according to public documents, about 8,000 members.  There are, of course, vastly more authors than that in the U.S; indeed, there is a larger number of potential academic authors than that total just within a 30-mile radius of where I sit as I write this, because of the four large universities in the Research Triangle.  The Authors Guild sees itself as representing a single type of author — those who wish to sell their books through commercial outlets and who have had success doing so.  This is a very small percentage of authors.  The remaining group are not bad authors, or all amateurs, as Stiles implies; they are just authors who making their living based on different business models.

Which brings me to my second reason for joining the Authors Alliance; it can represent a much more diverse perspective on the business and technology of authorship.  The truth is that the Authors Guild is apparently irredeemably wedded to a single business model, which is itself tied to the technology of print.  That business model depends, even in its digital forms, on making the book (or article) a scarce object and then limiting its readership to those who pay to obtain a (costly) copy.  This model only developed with the printing press, and as other options “come online” its relevance is fading.  Limiting readership, while necessary to the print-based approach to authorship, is not something that actually appeals to many authors.  Most people, I would think, write so that lots of people will read their work.  If other ways can be found to reimburse their effort while still supporting a wide readership, that is all to the good.

Of course, for most of our history writers have been supported in other ways.  Shakespeare and Dante were supported by patrons.  Many authors today are supported by a similar kind of patronage, from foundations, agencies or, indeed, universities.  Stiles himself, as the winner of the 2010 Pulitzer Prize for Biography, which carries a cash award with it, is not unfamiliar with a certain kind of patronage support.  So when he says that one should not join the Authors Alliance if “you earn a living as a writer, or hope to” he is being incredibly myopic.  And when he goes on to cite the salaries of some of the academic authors who are founding the Alliance he exposes his hypocrisy and envy.  These academic founders of the Alliance DO make their livings as writers, and their substantial salaries are testimony to their skill at it.  Authorship is a requirement of the jobs that pay them those salaries, and they are repeatedly evaluated on the basis of their writings, as well as other factors, in order to be sure they are providing value for money.

The point is that there are many ways in which writers are supported in their endeavors, and even more various are the reasons that people become writers.  The Authors Guild is focused on a single reason and a single business model, and it is sinking into irrelevance because of that limited vision.  Stiles’ essay reflects the desperation of the AG as much as its quixotic campaign of lawsuits does.  So why join the Authors Alliance?  Because academic authors need a representative body that can look beyond a single model to embrace new technologies and business models that are both new and, sometimes, old.  Because we need a representative group that has the vision and flexibility to be relevant and influential well into the 21st century.

Copyright Issues and Legislation, Licensing, Scholarly Publishing

Superrights for textbooks?

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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.

 

Copyright Issues and Legislation, Fair Use

On Copyright and negligence

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Last week I received the April 2014 issue of Against the Grain, which, to be honest, is not a publication I read at all regularly.  But I do sometimes skim it for copyright articles, and today my eye was caught by an op-ed piece from Mark Herring of Winthrop University about the Google Books decision.

Although its title asks a simple and moderate question — “Is the Google Books Decision an Unqualified Good?” — the article itself is quite extreme in its point of view and for the most part does not engage with the actual decision.  Instead it is a hyperbolic diatribe about why we should all be afraid of Google; it ends with the assertion that “In a sense, we all work for Google now, free of charge.”  I have no clue what that means, but it is pretty clearly an exaggeration.  Nevertheless, there are a couple of points made in this op-ed that are prevalent enough to be worth discussing.

By the way, normally I would provide a link to any article I discuss here, particularly when I do so in a critical way.  I want readers to have a way to evaluate the whole debate, not just my side of it.  But in this instance, the op-ed does not appear to be on the ATG website.  So anyone who wants to see both sides, as it were, is encouraged to track down a copy of the April issue of ATG.

I want to start with Dean Herring’s second reservation about what he calls the “Google Book Theft.”  He complains that there is “no evidence, no empirical evidence, that shows any additional exposure of any authors’ works improves royalties” and calls Google Books “cruel” for “taking away from academics any chance to improve [their] anemic bottom lines.”  Of course, it is easy to see the shift in this paragraph when I put the two sentences together — from no “evidence of improvement” Herring moves immediately to “taking away any chance” of improvement, a leap not justified by logic.  But I am more interested in looking at the decision for what it actually is, a legal opinion at the end of the first stage of a court case.  In that context, should we have expected either Google or the judge to have presented evidence of an improvement in royalties?

The point I want to emphasize is that copyright infringement is a “tort” — a civil (non-criminal) wrong for which courts can provide a remedy.  In structure, a copyright infringement case is not very different from other kinds of tort litigation.  For one thing, there must be a finding of harm.  In copyright infringement cases the harm is often presumed — if a plaintiff shows that their copyright has been infringed, the court will usually presume, subject to rebuttal, that there has been harm.  But a judge is entitled to look at a particular set of circumstances, as Judge Chin did, and decide that he can find no harm.  Some harm is a necessary element of most torts and is explicit as well in the fair use argument (under the market harm factor).  So it is asking the wrong question to require evidence of an improvement in royalties; all the court needed to conclude in order to stay within the framework of legal analysis was that the likelihood was more on the side of such improvement than harm.

To put this another way, the burden of showing harm falls on the plaintiff.

This general framework of tort litigation is also important when we look at another argument Dean Herring makes, that after this case fair use could apply to anything.  He writes, “Determining what fair use is now is anyone’s guess.  Everything is, the way I read it.”  It is a fairly common strategy of those who favor stronger and stronger copyright protection to take the line that copyright, and fair use especially, is too difficult and must be avoided because of its uncertainty.  This hand-wringing about how the court has now abandoned all structure or logic in making a fair use finding is really just another version of that argument, in my opinion.  But fair use remains today what it was before Judge Chin’s ruling, an “equitable rule of reason” that requires courts to examine the specific circumstances of a challenged use and determine, based on those particular facts, if the use was fair.  It is not a bright-line rule, but that does not mean it is random, unpredictable or unusable.

Here is where I want to return to tort litigation, and suggest an analogy I heard a few weeks ago from Peter Jaszi, who teaches copyright law at American University.  He reminded his audience that we have lots of laws that depend on courts determining what is reasonable.  It is very common in contract law, for instance.  But Professor Jaszi focused on a different area of tort law for his analogy for fair use — the law of negligence.  For a driver, for instance, to avoid being guilty of negligence she must exercise “due care,” which is defined as the standard of care that a “reasonably prudent” person would exercise in the same situation.  Arguably, this standard for non-negligent driving is even more nebulous than fair use (where we are given factors to assess the facts).  Yet all of us continue to drive, and I dare say most of us think we know what is an appropriate level of care when we do so.  Most of us, anyway, are not paralyzed with fear because the basic rule about legal driving is so uncertain and subjective.  Nor should we be about fair use.  And, of course, neither “fair use” nor “due care” results in a free-for-all, they just give the courts the discretion to look at specific facts and try to render justice.

The best thing that Professor Jaszi said during his discussion of this parallel, and the thing I have come all this rhetorical distance to repeat, involves how we learn what it means to exercise due care as drivers.  The simple answer is that we talk to other people, and we watch how other people drive.  Over time we develop a flexible but fairly accurate sense of what we should and should not do in a particular situation, even if we have not seen the particular circumstances before.  We do not require rigid rules that anticipate every eventuality in order to dare to get in the car each day; we have internalized that nebulous standard of due care and we carry it with us on each trip.  Sometimes we make mistakes, but most of the time we do just fine.  And here is a model for how we should think about fair use. We learn what it is by talking with others about situations we encounter frequently.  We think through the factors in new circumstances as they arise.  We read how courts have applied those factors in defining ways.  And we become good fair users — fair fair users, if you will — just as we become good drivers.

Fair use is neither an empty notion nor a license to do anything, and one case, not even the Google Books case, cannot make it so.  It remains a flexible tool that is a necessary part of the copyright structure, and one which careful and sensible people can learn to use with care and discernment.