All posts by Kevin Smith, J.D.

Authors' Rights, Copyright Issues and Legislation, Open Access and Institutional Repositories, Technologies

Careless language and poor analogies

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One of Will Rogers’ best known aphorism is “I only know what I read in the papers.”  In line with Rogers’ irony, if all one knows about the Aaron Swartz case is what one reads in the blogosphere, one knows very little indeed, and much of it wrong.

Swartz has been indicted on several federal charges after allegedly physically and technologically gaining unauthorized access to the MIT network and downloading a huge number of files from JSTOR.  On that everyone agrees.  After that the claims about and arguments based on this event diverge dramatically.

Predictably, many bloggers (an example is this one from the Copyright Alliance) call these actions by Swartz “theft” or “stealing.”  As always when talking about intellectual property, these words are misapplied.  The formal definition of theft from Black’s Law Dictionary is “the felonious taking and removing of another’s personal property with the intent of depriving the true owner of it.”  It should be clear from this definition why we call authorized use of intellectual property “infringement” rather than theft.  What Swartz is alleged to have done did not remove the intellectual property and showed no intent to deprive the original owner of it; he merely made, allegedly, unauthorized copies, which does not have the effect of depriving anyone else of intangible property. JSTOR was never without these files and they have, in fact, recovered the unauthorized copies.

Whenever someone uses the language of theft in reference to intellectual property, they are trying to cover the weakness of their argument, in my opinion.  Let’s just say infringement and talk about both the legitimate reasons to protect IP and the public policy that permits some unauthorized copying.

By the way, Swartz has not been charged with copyright infringement either.  The charges of wire fraud, computer fraud and illegally obtaining information from a protected computer all relate to the hacking itself, not to the downloads.

Another place where serious misrepresentations abound is when we are told (as in this post on the Scholarly Kitchen) that Swartz has “done this before” because of a previous incident where he download large numbers of documents from PACER, a database used by the federal courts.  That incident, however, involved neither illegal access nor copyright infringement.  Although PACER usually charges a fee, Swartz used a computer at a university on which access was being provided for free as an experiment.  And the materials he downloaded – documents from the federal courts – are not protected by any copyright due to section 105 of the US copyright law.  To be sure, Swartz was protesting the fees charged for access to works created at taxpayer expense for the public good, but his actions in that case have no analogy to the behavior charge in this indictment.

One place where there is significant disagreement is about Swartz’s intentions.  Many bloggers simply assume that he intended to release all of the downloaded files to the public, although Swartz claims he intended to do text-mining research with the articles.  He has done such work before, so there is some plausibility to his claim, which may explain when infringement charges have not been brought.  So turning this into a debate about the open access movement is wholly inappropriate.  It is important to recognize that the victim of these alleged crimes was not JSTOR or any of the journals it aggregates.  The victim was MIT.

However fervently one shares Swartz’s goals for greater access to legal and scholarly information and publications, the actions for which he has been charged do not serve those goals.  Quite frankly, Swartz’s actions were not radical enough, in the sense that they did not get to the root of the problem. It is clear that the system of scholarly dissemination is badly broken, and simply hacking it does not change that fact.  The real change, the real solution Swartz (apparently) seeks, will be found only when the academic authors, the original holders of copyright, stop transferring those copyrights to publishers without careful reflection and safeguards on their right to disseminate their own work widely.

Copyright Issues and Legislation, Open Access topics, Scholarly Publishing

Brilliant!

Two wonderful resources for academics thinking about public access and open access came to my attention recently, and I want to share them as widely as possible.

The first is this video of a short speech given to the 40th LIBER Annual conference in Barcelona by Neelie Kroes , the European Commissioner for the Digital Agenda.  LIBER is the Association of European Research Libraries, and Ms. Kroes gave their keynote address at the end of last month.

In her four-minute speech Commissioner Kroes does two important things.  First, she succinctly states the case for public access to government-funded research, including the data that underlies research.  She provides a sterling example of a politician (she was in both the Dutch Parliament and its cabinet) who really understands the needs and difficulties of scholarly research, as well as the opportunities provided by the digital environment.  The second important part of Commissioner Kroes’ speech is her announcement that the European Commission will expand its public access mandate for funded research to include all research supported by the EC.  Time for the U.S. to follow suit, if we do not want to lose ground in innovation and economic development.

The second brilliant resource I want to point is this 12 point explanation of the relationship between Open Access and Copyright by Peter Suber.  It is an unfortunate reality of my job that I am frequently reminded about how many misconceptions regarding copyright persist amongst scholars.  Unfortunately, there are some who try to exploit the misunderstands to convince scholars that copyright is simply too complex for them to manage, and surrendering all their rights is the path of least resistance.  Professor Suber’s 12 points do a superb job of debunking some of the myths and clarifying that open access and copyright are not only perfectly compatible, but also that good copyright management can be a tremendous (and attainable) benefit to scholars.

Copyright Issues and Legislation, Technologies

Unintentional felons?

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Whenever a new law is proposed in Congress, and especially when it deals with copyright, it behooves us to look both for the reasoning behind the bill and it potential for unintended impact on non-targeted activities.

Such a bill is S 978, also known as the “10 Strikes” bill, which was introduced by Sens. Klobuchar, Cornyn and Coons and recently reported out of committee to the full Senate.  The language of the bill amends both copyright law and the federal criminal statues to turn ten or more public performances of a copyrighted work “by electronic means”  — presumably unauthorized performances — into a felony punishable by up to five years in jail.

The purpose of this bill seems relatively obvious; it would further shift the expenses of copyright enforcement from the private companies that create content onto the taxpayer.  Copyright is generally a private tort, and the copyright owner has the obligation to bring lawsuits against infringers in order to enforce its rights.  By converting infringement into a federal crime, the costs of litigation would be borne by the government (the Justice Department) and, ultimately, by taxpayers.  This has been a continuing theme of the lobbying efforts undertaken by “Big Content” in the past few years.  During testimony in favor of this bill (and the PROTECT IP Act, a similar proposal to increase federal enforcement efforts) a DOJ official told the Judiciary Committee that there have already been 15 new attorneys and 51 FBI agents hired under the earlier PRO IP legislation.  The introduction of these bills is an example of the continuing success of industry lobbying.

Copyright law has had some criminal provisions for quite a while, but the threshold for this felony is really quite low — only 10 unauthorized public performances within 180 days.  So the expense of industry efforts to reign in YouTube, as well as less above-board media sharing sites, would dramatically shift to government lawyers instead of those employed by Disney or Comcast if this bill were adopted.

The intended consequences of this law are bad enough, at least for those who do not want to hand more tax money to the entertainment industries.  But the unintended consequences could be worse.  As the blog TechDirt points out, this bill could create liability for folks who embed YouTube videos into their webpages or blogs.  Others have suggested that online karaoke could also become a criminal act.  Since it is public performances and not just reproduction that is criminalized here, some one who embeds a video (or even links to it?) would need to know in advance that the video was made available with authorization.

As the parenthetical question above indicates, the absence of a definition of what constitutes a public performance makes this law especially ill-conceived.  And it is not even made explicit that only unauthorized public performances would trigger liability, although presumably this enforcement bill cannot by itself criminalize public performances that are not even infringing.

For higher education, it is useful to distinguish which performances might raise a problem if this bill were enacted and which ones would not.  Performances in a live classroom are specifically authorized by the Copyright Act, so they would not have the potential for criminal liability.  Film clips that are transmitted through a closed learning management system are similarly authorized (although with several qualifications), so this common practice would not become criminal either.  Nevertheless, the fact that we have to ask the question indicates how dangerous such thoughtless legislation can be.

Where risk would arise is in those many supplemental educational communication tools that faculty use to enrich there teaching.  Embedding a video in a class blog might become problematic, as could having students make and share videos in which background music, even if incidental, was included. And a cynic might see behind this new effort to ratchet up penalties for infringement an attempt to frighten other universities away from following the example of UCLA in streaming digital video for classroom teaching; under this bill criminal charges might be possible if a fair use defense of that practice were rejected.

Another big question raised by this proposal is whether or not “accomplice” liability might attach to universities because of criminalized public performances initiated by students.  Courts have apparently never accepted a criminal parallel to contributory infringement, but the Department of Homeland Security asserted exactly that theory when it began seizing the Internet domains of web sites that allegedly linked to pirated content.

With this “10 Strikes” bill is is easy to see why it is important, yet extremely rare, for Members of Congress to think before they “strike.”

Authors' Rights, Open Access and Institutional Repositories, Scholarly Publishing

What a mess!

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Recently my intern Dave Hansen (another lawyer) and I have been looking at the new author self-archiving policies promulgated by the American Chemical Society and Elsevier.  It would be more accurate to say that these policies are anti-archiving; in spite of persistent rhetoric about how committed these publishers are to access to scholarship, the clear intent is to restrict and interfere with decisions faculty authors might make about how best to serve their own interests as scholars.

A comical element was introduced into our consideration early on, when we realized that the two different policies imposed directly opposite requirements for self-archiving.  The ACS only allows an author to self-archive their final manuscript if doing so is mandated by her institution, while Elsevier only allows it if it is not.  So on each campus the policies must be evaluated and one publisher or the other declared off limits.

In general these publishers’ statements about author rights are confusing and self-contradictory.  It seems clear that the intent of these statements, policies and contracts is not to clarify the authors’ obligations so much as it is to confuse and intimidate them.  At one point we asked ourselves why we were spending so much time poring over these badly drafted documents, and we realized that we were doing it because we are concerned not to let our faculty authors put themselves into difficult positions.  What is clear is that these publishers have no such concern; they are trying to make authors pawns in their effort to dictate campus policies.

We have to start our evaluation of the position that Duke authors would be in, vis-à-vis these publishers, by asking ourselves what exactly the Duke Open Access policy is.  From its inception we have maintained that it is not a mandate.  Although the policy grants Duke a license to archive the works written by its faculty, there is no requirement or assertion that it will be universally exercised.  The license is fully waivable and it was adopted with the commitment that its implementation would not involve Duke authors in conflicting obligations.  What the policy most clearly represents is a strong statement that Duke authors want to make their own works as accessible as possible to the largest number of people.

So if this is what we think our policy is, how does it interact with the crazy quilt of rules imposed by these two publishers?  Regarding the American Chemical Society, our conclusion was that Duke’s policy is simply incompatible with publication in an ACS journal.  ACS only allows an author to self-archive if there is an institutional or funder mandate that they do so, and Duke does not mandate such behavior.  ACS authors are treated here with little consideration; their right to make individual decision about their own best interests is simply not respected.  So we will communicate to our authors who write for ACS journals that they may not exercise the policy decision that they made 18 months ago because their scholarly society has told them not to.  We will ask them to make their unhappiness with this interference with their freedom to determine academic policy known to the ACS.

Elsevier presents a more difficult case.  There are multiple policy statements out there, and they are not particularly consistent.  It is also not clear which statements will actually end up incorporated in author contracts.  What is clear is that Elsevier wants to dictate what policies our faculty can and cannot adopt for itself, which certainly raises the issue of how willing authors will be to surrender the idea of academic freedom.

But our bottom line is that these statements are ineffective in changing our approach at Duke.  In a statement sent to the lib-license email list, Alicia Wise of Elsevier tried to explain the new policy by emphasizing that authors would still be able to voluntarily post their final author manuscripts. Only a “mandate” triggers the restriction on author self-posting, according to Ms. Wise.  Although there is language in some of the Elsevier documents that suggests otherwise, we are inclined to take Ms. Wise at her word.  Our policy is not a mandate, and author participation is entirely voluntary, especially since a final author’s manuscripts can only be obtain from authors on an individual “opt-in” basis.  So we do not see a conflict here with the policy our faculty has put in place.

If Elsevier disagrees with our interpretation and thinks that Duke’s policy triggers their denial of authors’ rights to our faculty, they ask us to discuss the matter with them.  This we would be happy to do, but we will do it as part of our negotiations to subscribe to their journal packages.  In her email message Ms. Wise states, somewhat out of the blue, that “author rights agreements and subscription agreements should be kept separate.”  On the contrary, we believe that subscription negotiations are the perfect time for a campus or consortium to take steps to protect its faculty and defend their right to make policy decisions for themselves.  If Elsevier wants to interfere with that right, we will address that desire at the point when we are considering investing some of the Universities’ money with them, if only to get their attention.

Open Access and Institutional Repositories, Scholarly Publishing

COPE, Renewed

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Duke University announced its COPE fund in October of 2010.  COPE, which abbreviates the Compact for Open Access Publishing Equity, is a movement for colleges and universities, mostly through their libraries, to provide financial support, usually reimbursement, for the article processing fees that some open access journals charge.  The basic idea is to see to it that these article processing fees do not pose an obstacle for faculty who want to publish in an OA journal.  In this, as in all aspects of scholarly communications work at Duke and elsewhere, I believe, the goal is to help preserve as much choice and as many viable options for faculty authors as possible.

Duke’s fiscal year ends in June, so it was time recently for the Libraries to decide whether and how to renew our commitment to COPE.  The original COPE fund was create with money from the Libraries and from the Provost’s office, and since October we have had 13 requests for reimbursement of article processing fees.  Of those requests, eight met the criteria we had established and either were funded or will be shortly.  These requests did not exhaust the fund we had for FY ’11, but they have been accelerating over time, and we anticipate robust demand in the coming FY ’12.

So part of the good news to report is just that COPE funding will continue to be available for FY ’12 for Duke authors who decide to publish in fully open access journals.  This is a decision we want our authors to be able to make without concern about fees, and a business model for publishing that we want to support.  But what makes this coming year different, and somewhat unique, I believe, is that the COPE fund in 2012 will be a three-way partnership, with funds coming from the Libraries, the Provost’s Office and the Dean of the School of Medicine.  A quick survey of colleague institutions who have COPE funds did not find any where monies were contributed by the medical school, so we have reason to believe this is not the norm.

About half of Duke’s COPE applications so far have come from medical faculty, so it is very gratifying that the Dean of the School of Medicine has agreed to contribute to the fund.  Open access is growing in most fields, but especially in the biomedical sciences, where access to research and speed of publication are vitally important.  So the increase in the fund and the collaboration amongst the interested parties at Duke makes especially good sense.

One point that has been important as we renewed the COPE fund, and involved the School of Medicine, has been the relationship with grant funding.  Since grant funds are so important to medical research, and many medical research funders allow grant money to be used to pay open access charges, it seemed important not to undermine the support for OA from this quarter and to make COPE funds available where they are most needed.  The principle adopted at Duke and many other COPE institutions is that the funding is only be available to researchers whose work either is not grant funded or whose funder does not allow the use of grant money to pay OA fees.  COPE funds are all about incentives, and preserving the incentive for grantors to support open access was an especially important aspect the policy for the medical school.

We are looking forward to a busy year supporting open access publication at Duke, and very proud of the partnership that has formed for that purpose between the Libraries, the Provost, and the Medical School.

Authors' Rights, Libraries, Open Access and Institutional Repositories, Scholarly Publishing

Open access, copyright wars and the Trojan horse

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On our recent trip to Turkey, I happened to be wearing a SPARC open access t-shirt on the day we visited the site of ancient Troy, and my wife took a picture of me holding a model of the Trojan horse with the t-shirt.  How one views the Trojan horse, of course, is a matter of perspective.  To the Trojans it was a nasty trick, but to the Greeks it was a new way to gain access that had previously been denied.

I bring this up because of the coincidence with the forum on the Georgia State copyright case that was published in the Chronicle of Higher Education, also while we were in Turkey.  A number of the participants, myself included, suggest that the open access movement is the way to respond to aggressive copyright enforcement in the scholarly publishing industry.  It is worth considering the various ways in which open access is a Trojan horse solution for scholarly communications — the movement that launched a thousand journals and burnt the topless towers of Elsevier, so to speak.

Last week the Duke University Libraries announced the launch of its first library-sponsored open access journals on the Open Journal System platform.  Both of these small journals — one a long-standing publication and the other a new, international collaboration — are edited by Duke faculty members and are fully peer-reviewed.  The OJS system automates many of the administrative tasks of the journals, adding greater efficiency to the volunteer editorial labor that has always been the core of scholarly journal production.  For authors who publish in these journals, the two great difficulties in scholarly communication — copyright management and access to the greatest number of readers — are solved; authors retain their copyrights and are free to do with their articles whatever they believe serves their needs and interests best, while potential readers have unfettered access.  The Libraries bear the small cost of administering the technology as a service to Duke and to the wider community of scholars.

These journals add to a series of efforts toward open access made by the Duke Libraries and the Duke faculty.  In 2010 the faculty adopted an Open Access policy to facilitate greater “reach for their research” and to provide access to those who cannot, for various reasons, rely on the traditional model of restricted, subscription-based access.  The Libraries have been developing the DukeSpace repository in order to make the vision expressed by the faculty in that policy into a reality.  Last fall, Duke also implemented a COPE Fund (Compact for Open access Publishing Equity) designed to help authors pay article processing fees if they decide that publishing in an “author-pays” open access journal is the best choice for them.  The COPE fund is a joint project underwritten by the Libraries and the Provost’s Office; it has seen steady, but not overwhelming, requests for assistance from faculty authors.

We are proud of these initiatives at Duke, but we recognize that none of them are unique.  Many institutions are adopting some or all of the same strategies.  The point is that these efforts really do remove the conflicts about which so much has been written in the past few days (much of it by me).  Insofar as I have have suggested nightmare scenarios, open access avoids them all.  If scholarly authors insist on retaining their copyrights, even when they publish in traditional journals, the problem of having that copyright enforced against the scholars’ own interests simply does not arise.  If they retain rights to post in an open access repository, the access problems, whether they involve electronic reserves, faculty posting in a course management system, or inter-library loan, simply do not arise.  And if more scholarly articles are just published directly as open access works, either in free open access journals like the ones the Duke Libraries have just launched, or in an author-pays journal with the support of a COPE fund, these problems once again simply do not arise.

Is open access a Trojan horse?  Not really.  The Trojan horse was meant to deceive, while the open access movement has always been honest and up-front about its goals.  But it is still true that traditional publishers have proved, through a series of actions designed to increase their own revenues at the expense of higher education, to be poor stewards of the copyrights and the scholarship that we have long entrusted to them.  The metaphor of a war has, unfortunately, begun to surface in the debate.  But there are also articles like this one, in which a researcher points in a more irenic direction, suggesting that open access is the future of scholarly publishing. The variety of open access mechanisms that are being initiated now, and the yet-unknown ones that will be tried in the future, offer an opportunity to cut short the war and put the management of scholarship into the hands that can best serve the overall interests of research and teaching, those of the scholarly authors themselves.

Copyright in the Classroom, Copyright Issues and Legislation, Libraries

A second front

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For obvious reasons there has been a lot of attention paid to the Georgia State copyright infringement case recently.  In that litigation three academic publishers are asking a judge to fiercely restrict  academic fair use in favor of a pay-per-use system that, in my opinion, disregards the expressed intent of Congress in the 1976 Copyright Act and  is foreign to the purposes of that law.  The trial was completed yesterday, and a decision from the judge can be expected over the summer.  But in our justifiable anxiety about that case, we should not miss the fact that is is only one part of an overall strategy to undermine the educational exceptions to copyright; yesterday the publishing community opened a second front in their attack on education by issuing a statement of principles designed to hobble inter-library loan.

The statement is presented by the Association of Scientific, Technical and Medical Publishers, who have been carrying on a quiet campaign of intimidation regarding ILL, especially ILL between countries, for some time now.  The statement of principles seems to have been prompted by a series of documents issued by the Association of Research Libraries that defend current ILL practices (full disclosure — I am one of the authors of a portion of this report).  In response, the STM publishers propose a set of rules that would gut section 108, which authorizes ILL, and would once again channel more money to publishers without supporting the creation any new content.

The principles that the STM publishers propose would have several novel effects.  First, they would forbid ILL across national borders without specific permission (paid, of course) from the publisher.  Second, they would make digital delivery entirely the province of the publishers (for a fee, undoubtedly).  Libraries would not be able to e-mail a journal article to a patron, even though nothing in the current law forbids such a practice.  Third, it would impose a vague standard of “due diligence” — language not found in the law — on all document delivery for “private, non-commercial use.”  Presumably this is the thin end of a wedge to attack all private research use for which permission fees are not paid.  It is important to understand that such a standard would give the United States the most restrictive copyright law in the world, and it would do so without the intervention of Congress.

The only document delivery which the STM publish want to allow — and even this would seem to be subject to their new due diligence standard — is printed copies which patrons would be required to physically retrieve from the library.

Distance education students would be out of luck under these proposed principles, as would those who were trying to write doctoral dissertations while working in areas where a research library is not at hand.  Once upon a time I was such a doctoral student, and I can testify that such a situation is untenable.  But the needs of higher education simply are not the concern for these publishers; they want more money out of us, and they want it every time a scholarly work is used in any way.  Never mind that our faculty members are the authors of these works; once the copyright is transferred to the publishers they see that as a resource they can exploit to the maximum regardless of the harmful effects that exploitation has on the very enterprise that supplies them with content.

Increasingly, this seems to be a war for survival.  I understand that traditional publishers are getting more and more desperate as the digital revolution proceeds and they continue to dither about how to address it.  But academic faculty members are the source of almost all the content these publishers publish, so this behavior is an extreme example of biting the hand that feeds them.  It is even more stupid, in my opinion, than the strategy of recording industry who is suing its own customers, because these publishers are attacking a group that is both their customers and those who supply them with a product in the first place.

As these attacks on higher education continue to escalate, it becomes increasingly clear that the economic viability of higher education, already in doubt by some, depends on rebelling against these traditional publishing practices.  In the digital age it is simply not necessary to rely on these publishers, and they seem to be doing all they can to make it impossible as well.  I wish I did not feel that I have to hope this apparently self-destructive behavior proves to be exactly that.  But it must serve as wake-up call to academic authors that traditional practices are now being abused in a way that would make much academic practice impossible.  Open access alternatives seem more and more to be not just a nice alternative, but the only path scholarly communications has left to survival.

Copyright Issues and Legislation

Who pays for copyright enforcement?

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From David Hansen, JD, Scholarly Communications intern at Duke University Libraries:

Kevin’s last blog post on champerty got me thinking about another ancient legal doctrine, also dimly remembered from law school, which has some application to recent copyright cases: “adverse possession.” Adverse possession is a common law doctrine, dating back over eight hundred years, that was developed to settle disputes over real property when one person had legal title to the land, but another actually possessed the property. Adverse possession works to give rights in the land to the possessor of the land if the original title holder has sufficiently failed to police and assert her rights over the property in question. Now sometimes referred to as “squatters rights,” one of the underlying purposes of the doctrine is to force landowners with legal title to vigorously assert and defend their own property rights.

The doctrine illustrates a default rule of our legal system—that owners of private property should pay to police and enforce their own rights. There are, of course, exceptions (for example, publicly funded district attorneys are responsible for prosecuting crimes like robbery or “criminal trespass”), but publicly-funded enforcement has traditionally been reserved for the detection and prosecution of invasions that rise to the level of a crime. Absent an external public interest in enforcement, the assumption has been that exclusive rights in property—real property, personal property, or intellectual property—are only worth legal maintenance to the extent that the rights holder will bear the costs of enforcement.

Despite this assumption, copyright owners and their policymaker-supporters have recently made overtures toward public enforcement of these private rights. Just surveying the news of the last week we see enforcement costs borne by foreign “enforcement units” like the one operated by the Recording Industry Association of New Zealand and funded by the United States government, and by Canadian Mounties who are asked to police Montreal theaters for camcorder-toting moviegoers. Efforts like these are in line with more sweeping proposals, like the Anti-Counterfeiting Trade Agreement (ACTA), an international agreement which has been criticized on this blog for shifting “lots of the costs of enforcing IP rights from the private industries that hold those rights to government agencies, funded by taxpayers.”

A more subtle brand of cost-shifting occurs, however, when those who assert copyright infringement attempt to shift liability from one private party to another. For example, CNET, owner of domain download.com, is being sued for providing access to peer-to-peer file sharing software such as LimeWire. Rather (or in addition to) holding liable users that host the infringing content themselves (a costly proposition because of the sheer number of users), or even LimeWire itself, rights holders are asking that CNET be held responsible because it hosted the software that enabled the infringing activity. The question of CNET’s liability is really one of secondary liability—focusing on the issue of either how much control CNET has over users (a key issue in deciding if there is “vicarious liability” on the part of CNET), or whether CNET took steps that were intended to induce or “foster infringement” (an important part of a “contributory infringement” finding). By shifting liability to CNET, it and others like it may be forced to carefully monitor the types of software it offers and the potential applications of that software by users. The safe harbor of Sony Corp. of America v. Universal City Studios, Inc. (holding that the mere sale of VCRs and other copying devices is not sufficient grounds for contributory liability so long as those devices have other substantial non-infringing uses) would indicate that it is not the responsibility of CNET to monitor user-application of the software it hosts. But cases that backtrack from that safe harbor—notably the case against Grokster (a peer-to-peer network) and the recent suit by Viacomm against YouTube (essentially alleging that the DMCA requires YouTube to actively monitor the copyright status of user-posted content)—have blurred the line of responsibility for vicarious or contributory liability.

In the university context the question of control or inducement becomes more difficult. For example, how much control can, or should, Georgia State University administrators exercise over the materials used for particular faculty member’s course offerings? The liability of GSU in the current case has come to rest on whether GSU administrators and librarians have properly implemented the university’s copyright policy with respect to its e-reserve offerings, a system over which the university certainly has some degree of control. But what if copyright decisions are made directly by faculty on entirely faculty-administered systems? If materials are posted on faculty-administered pages, does the university have a responsibility to police those sites for infringing content? Should it? Perhaps faculty members have an academic-freedom interest in making their own fair use determinations. Fair use, after all, has a knotty but ultimately complimentary relationship with the First Amendment right of free speech.

In the past, academic publishers quickly named universities and administrators as defendants in infringement suits, but publishers have been hesitant to name individual faculty members. Presumably this tactic is to avoid biting the hand that feeds them (what are academic publishers without the academics who write for them?), but placing sole responsibility on the university shifts, or at least hides, the costs of these suits. Faculty members remain largely unaware that the publishers to which they submit their work (in this case, Cambridge University Press, Oxford University Press, and Sage) are attacking the assertion of educational fair use of those very same works on college campuses.

A good litigation strategy would seem to dictate suing defendants who have deep pockets and who are unlikely to retaliate in a meaningful way. Plaintiffs may seek to place responsibility on the YouTubes and CNETs of the world because the alleged infringers—the users who are actually using peer-to-peer software—are too expensive or too difficult to pursue individually. Publishers, however, may seek to place sole responsibility on universities and their administrators because the other defendants—faculty members—are too dangerous to name in a lawsuit. While universities should obviously bear the risks and benefits of their own faculty members, we should be careful to monitor the extension of that responsibility to areas that truly do shift or hide the costs of enforcement.

Copyright in the Classroom, Copyright Issues and Legislation, Fair Use, Libraries

A nightmare scenario for higher education

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In anticipation of the trial starting on Monday in the copyright infringement case brought against Georgia State University by Cambridge, Oxford and Sage publishers, and partially financed by the Copyright Clearance Center, there has been a flurry of motions, mostly relating to the admission of various pieces of evidence.  But amongst that deluge of paper is a truly frightening document, the proposed injunction that the plaintiffs are requesting if they win the case.  I have always known that there was a lot a stake for higher education in this case, but the injunction the publishers want would be a nightmare scenario beyond even my most pessimistic imaginings.

First, if this injunction were adopted as proposed, it would enjoin everyone at Georgia State, including students, who would seem to largely lose their fair use rights by virtue of enrolling at GSU.  It would apply to e-reserves, faculty web pages and any learning management systems in use or adopted in the future.  It would make GSU responsible for every conceivable act of copying that took place on their campus.  In short, administrators at Georgia State would have to look over the shoulders of each faculty member whenever they uploaded course material to an LMS or any other web page.  Arguably, they would have to monitor student copying at copiers provided in their libraries, since GSU would be enjoined from “encouraging or facilitating” any copying, beyond a limit of about 4 pages, that was done  without permission.

Not only would GSU have to micromanage each faculty member’s choices about how to teach every class, they would also have to give the plaintiff publishers access to all of the computer systems on campus so that they too could examine each professor’s decisions.

I can only imagine the angry reaction of faculty members if this requirement were actually imposed on our campuses; they might finally rebel against the exploitation they suffer from these “academic” publishers.  In any case the order quite literally asks the impossible and was apparently written by people with no functional knowledge of how higher education actually works.  The administrative costs alone would be staggering, not to mention the permission fees.

Permission fees are the real purpose here, of course.  The goal is to drive more and more money to the Copyright Clearance Center, which is the only source of permission mentioned by name in the draft injunction.  The way the injunction would accomplish this would be by entirely eliminating fair use for Georgia State.

There is absolutely no mention of fair use or section 107 of the copyright law in this proposed order.  Instead, the coping that would be permitted without permission is entirely defined by the bright line rules of the 1976 Guidelines for Classroom Copying (see pp 68-70).  Actually, it is the guidelines PLUS an additional requirement that is being sought as the sole standard for non-permissive copying.

The guidelines’ rule on brevity would entirely circumscribe such copying if this injunction were granted.  That rule permits a copy of only 10% or 1000 words of a prose work, which ever is less.  Many schools that adopt 10% as a fair use standard will be shocked to find that, under this definition, that is often still too much to be acceptable, since the 1000 word limit will usually take over.

Also, the rule about cumulative effect — a limit on the total number of excerpts that can be made — would be enforced across the entire institution.  Two classes could not use the same work without paying permission, and Georgia State would be responsible for making sure that no system across its campus was providing access to any more than two excerpts (for the whole campus and of no more than 1000 words each) by the same author.

Added to these rules from the Guidelines is a new restriction, that no more than 10% of the total reading for any particular class could be provided through non-permissive copying.  The point of this rule is nakedly obvious.  If a campus had the temerity to decide that it was going to follow the rules strictly (since the flexibility which is the point of fair use would be gone) and make sure that all of its class readings fell within the guidelines, they still would be unable to avoid paying permission fees.  Ninety percent of each class’s reading would be required, under this absurd order, to be provided through purchased works or copies for which permission fees were paid, no matter how short the excerpts were.

Not only would the minimum safe harbor for fair use that the guidelines say they are defining become a maximum — the sum total of fair use — but that maximum would be shrunk much further by this 10%/90% rule.  The intentions of Congress in adopting fair use, including its clause about “multiple copies for classroom use,” would be mocked, gutted and discarded, at least for Georgia State.

I believe that compliance with this order, were the publishers to win their case and the Judge to adopt the proposed injunction, would be literally impossible.  For one thing, the record keeping, monitoring and reporting requirements would cost more than any institution can afford, even if they were technically possible.  Also, there is really no permission market that is broad and efficient enough to meet the demand that this order would create; the CCC might get what it paid for in underwriting the litigation if this order became the law for Georgia State, but they do not have the coverage, even with their Annual Campus License, to support this kind of regime if it were broadened to other campuses and other publishers.  Yet you can be sure that if those things happen, all of our campuses would be pressured to adopt the “Georgia State model” in order to avoid litigation.

This proposed order, in short, represents a nightmare, a true dystopia, for higher education.  We can only hope, I think, that Judge Evans is clear-sighted enough, and respectful enough of what Congress intended when it passed the 1976 Copyright Act, not to adopt this Orwellian proposal, even if she finds in favor of the plaintiffs.  No judge likes to issue an order that cannot be obeyed, and this one would be so far outside the stated policies of the United States in its copyright law that an appellate court could, and likely would, overturn it purely on those grounds.

Copyright Issues and Legislation, Fair Use

Old law and modern lawsuits

1 Comment

Champerty is one of those ancient and obscure legal concepts that date from the Middle Ages and just beg, in my opinion at least, to be investigated and explicated.

The basic problem that rules against champerty address is the buying and selling of legal claims.  At it’s most egregious, champerty involves someone making a frivolous claim, usually in tort, and selling that claim to a legal speculator.  In this way the claimant gets a swift and certain profit, while the speculator steps in to gamble on a bigger return as a result of the lawsuit.  The broadest definition of champerty is simply “maintaining a lawsuit in return for a financial interest in its outcome.” (definition from Cohen & Schwarz, Champerty and Claims Trading, 11 Am. Bankr. Inst. L. Rev. 197, 197 (2003))

Over time the rules against champerty have evolved and often become subsumed into other kinds of regulation.  The rules that limit lawyers’ contingency fees are one example of the evolution of champerty prohibitions.  The underlying ethical concern, which is that courts will be clogged with poorly-justified lawsuits simply to serve external and purely financial interests, spans a wide range of legal fields and activities.

I ran across the word, dimly remembered from law school, in a motion to dismiss one of the lawsuits brought by Righthaven over Internet reposting of news articles.  It has come out recently that Righthaven appears not to hold any of the rights under copyright in some of these cases, having purchased nothing but the “right” to bring a lawsuit.  Defendants have leapt at this evidence, claiming the the cases should be dismissed as mere “sham and champerty.”  But it is not those copyright cases that I began to consider in the context of champerty; it is the lawsuit brought by publishers against Georgia State University over electronic reserves, which is being partially funded by the Copyright Clearance Center.

I want to be clear that this arrangement, where the Copyright Clearance Center bears some of the costs of prosecuting the litigation, is not precisely the kind of thing champerty rules were intended to prevent.  In the GSU case, the rights holders are themselves the plaintiffs, and, since no damages are being sought, there can be no suggestion that CCC has purchased a stake in any recovery.

Nevertheless, and in spite of its own protestations, the CCC does have a financial stake in the outcome of the suit, which goes to trial in a few days.  A ruling that narrows fair use even further than the interpretation of it that GSU and many other universities are already using would drive many more transactions to the CCC and greatly increase their revenue.  Essentially, CCC is financing an aggressive marketing strategy by paying 50% of the litigation costs in this case.  They did not buy a stake, but they certainly have a stake.

When the Association of Research Libraries wrote a letter to the CCC expressing disappointment over the decision to help underwrite the lawsuit, CCC’s reply emphasized that no damages were being sought and maintained that their participation had the simple goal of “clarifying” fair use.  This strikes me as disingenuous.  There are more efficient ways to clarify fair use than litigation, and the CCC has a definite financial interest in the case even absent any request for damages.  CCC’s aim here is not to clarify fair use but to narrow it dramatically, to their direct and immediate profit.

As I have said, this is not champerty per se.  But it does raise some of the same ethical issues that under gird the old prohibitions.  Suppose, for example, that one of the reasons that this case has not settled is that the plaintiffs are not subject to the normal financial concerns that accompany litigation.  With an interested and supportive “angel” absorbing half the costs, it may be a smart gamble for plaintiffs to move forward even with a weak case rather than negotiate and settle on a reasonable “clarification” of fair use.

When, in the footnote to an earlier ruling, Judge Orinda Evans revealed (to many of us, for the first time) this financial arrangement between the plaintiffs and the CCC, it seemed the the judge was somewhat uncomfortable with the situation.  The more I think about, the more I believe she should be.