Category Archives: Copyright Issues and Legislation

Am I really “the public”?

August 9, 2011 Kevin Smith, J.D.

This post is a collaborative work by David Hansen and Kevin Smith.

One of the consistent themes in this space has been the increasingly poor fit between the copyright law as it stands and new technological options for communication that seem to be developing so quickly. While it is not directly related to scholarly communications, a recent court case about remote DVD players serves as a nice illustration of the tensions that arise when we tried to pour the new wine of technology into the old wineskin of our 1976 copyright act.

As explained by Wired.com, the system works as follows:

The company literally rents you a DVD and a DVD player, with your computer, tablet or Google TV as the remote control. Unlike the other streaming movie services, Zediva doesn’t turn a movie into a file on its servers that it can serve to as many users as care to see it at once. Instead, Zediva’s servers have DVD drives and actual DVDs. So when you rent a movie, that disc goes out of circulation until you release it back to the company, just like in one of those increasingly rare real-world video stores. And like those video stores, Zediva doesn’t need to get permission from the studios to rent out discs, since once they buy the DVD they are free to rent it out or re-sell it, thanks to the first-sale doctrine in U.S. copyright law.

One article calls Zediva a business relying on a “loophole.” But these “loopholes” are key to figuring out how copyright law applies in the digital age, and whether we will allow terminology routed in the mid-20^th century to restrain innovation in the 21^st. The judge presiding over the Zediva case viewed its conduct as outside the law, and ordered the service to halt operations. Central to the his order forcing Zediva’s to temporarily halt operations was his holding that the service likely “transmits” the DVD content to “the public,” thus violating the rights holders’ exclusive right to control public performances of the work (17 U.S.C. § 106(5)).

Copyright law defines the public performance right as exclusive control over either performance or display of a work to a group outside a normal circle of family or social acquaintances, and “to transmit or otherwise communicate a performance or display of the work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” The terms “transmit” and “the public” are italicized because it is the definition of these two terms that determines both the case and the way copyright law responds to new cloud-based, personalized services like Zediva.

First, what does “transmit” mean? The copyright statute states that “to ‘transmit’ a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.” The judge in the Zediva case concluded that the service “clearly transmits plaintiffs copyrighted works” because the service “communicates” images and sounds beyond the place from which they are sent. But this raises the question—who communicates to whom? The Zediva judge held that “the fact that Zediva’s customers initiate the transmission by turning on their computers and choosing which of Plaintiff’’s copyrighted works they wish to view is immaterial.” Transmission, under this theory, is omnipresent. While this construction is plausible based on the bare definition, it leads to absurd results. Can I really “transmit” or “communicate” with myself? Those rather existential questions aside, under this view every personal act to receive copyrighted works that are stored in a remote location is therefore a “transmission.” Of course, even under this expansive definition of “transmission,” there is still no infringement unless those “transmissions” are “to the public.”

So this raises the question, what does “the public” mean? There is no definition of “the public” in the act, but it does specific that “the public” need not receive the transmission “at the same place . . . [or] at the same time.” But can a transmission really be public if it is initiated and received by the same person? The Zediva judge interprets it this way, based on the relationship between Zediva as a corporate entity and its users as “the public at large.” But it is not at all clear that this is the sense that “the public” should have when interpreting the copyright act, where public is intentionally contrasted with “private.”

As with the judge’s treatment of “transmission,” this approach to “the public” leads to absurd results. I am a user of Dropbox, which is a commercial service. If I save a copyrighted article, of which I have made an authorized copy, to my Dropbox folder, then download it to my iPad (as I often do), have I really transmitted that article to the public? The judge does try to distinguish personal copies from those retained by the Zediva service, but his use of “the public” does not seem to provide any principled ground for this distinction.

Of course it is possible that the Zediva customer will have thrown open his doors and invited the masses to see the rented video stream, but that is just as possible if the DVD of the copyright work is on site as well. Does the mere fact of transmission make that risk any greater? If not, how do we justify restricting the transmitted performance more than the “physical” one? As this TechDirt column suggests, this approach seems to mean that copyright compliance depends on the length of the cable between the DVD player and the recipient’s TV.

This whole case serves as a reminder of how important it is for us to examine carefully those words in the law that seem obvious, vague or even unimportant. These “loopholes” actually are central to figuring out how the law will accommodate new technologies and where, potentially, the law itself must change.

Licenses, prices, fair use and GSU

August 3, 2011 Kevin Smith, J.D. 9 Comments

When the trial of the Georgia State copyright infringement lawsuit closed last month, the Judge asked both sides to file post-trial briefs, outlining their proposals for findings of fact and conclusions of law that they think the court should make. They are extensive documents, representing the last chance each side has to make its arguments, and they are now available on the Justia website (docket numbers 409 through 411, with responsive arguments from each side at 414 and 415). More about these documents in just a moment.

Before these documents were filed, however, there was an interesting contrast set up by a couple of unrelated publications. First, Tom Allen of the Association of American Publishers (one of the groups paying the plaintiff’s legal fees) published an opinion piece in Publisher’s Weekly arguing that the Annual Academic Copyright License that the publishers say is a solution to the infringement they allege would only cost GSU $114,000, or about $3.75 per student (there are replies to this assertion here and here). Second, there was a news story and much comment about the price increase being imposed on Canadian universities for their copyright licenses from Access Copyright, which is going up from a few dollars per student to $45/FTE. The juxtaposition of these stories prompted the question of why it was costing so much more in Canada to license copying of protected works.

I think there are two answers to the question of why the Canadian license costs so much more. The first is that the $3.75/student number for the CCC license does not strike me as realistic; it is certainly much less than my university, with a smaller student body, was quoted. I suspect it is a “first year” discounted rate that would rise very quickly, which is the model we were presented with. But the more important reason for the difference is that the Canadian license is a compulsory one, created by the Copyright Board of Canada, and therefore comprehensive. Regardless of what you think about the price, when a university buys a license from Access Copyright, it covers pretty much all of the copying of educational material done on campus. By contrast, the Annual Academic Copyright License from the Copyright Clearance Center is very far from comprehensive; only a relatively small percentage of publishers license their works this way. Not all the publishers that license through the CCC, and not even all the plaintiffs in the GSU case, allow their works to be used under this blanket license; Cambridge University Press was forced to admit during trial that their material would not have been covered even if GSU had purchased the AACL. So the price difference becomes explicable – you pay less to get less.

By the way, this claim about how cheap the AACL is elicited a very telling question from Andrew Albanese of Publisher’s Weekly, who asked if these three publishers had really decided to sue 4 million dollar per year customers for only $114,000. The answer clearly is that they expect much greater profits if they win.

Now let’s go back to the last set of filings. Reading the plaintiffs’ brief, I was struck forcefully by the realization that they are asking the Judge to eliminate fair use virtually entirely for academia and instead substitute a compulsory license. This is especially clear when you see in their proposed injunction a requirement that permission be obtained for 90% of the readings in any course, regardless of whether or not some or all of that 90% could be considered fair use (under the extremely restrictive definition provided in the proposal). This is essentially asking the court to force a license even where the law – under anyone’s interpretation — does not require it. So it begs the question, can the AACL function as a compulsory license? I think three observations should be made.

For the AACL to function as a compulsory license, it needs much broader coverage. It cannot play the role that the GSU plaintiffs would assign to it until everyone, or nearly everyone, licenses their materials through it. If the Judge were to agree to the plaintiffs’ injunction, she would have to order those three publishers, at least, to license their work comprehensively through the AACL.
The example of Access Copyright shows us that the price for the AACL will inevitably go up if it moves towards a role as a compulsory license. In fact, you can find a list of Canadian universities that have decided to forgo the Access Copyright license because of its huge price increase here. So the rhetoric about what a good deal it is, already suspect, would become irrelevant.
Compulsory licenses nearly always require continuing judicial oversight due to the threat of monopolistic pricing and anti-trust concerns. Sometimes a government board plays that oversight role, as with Access Copyright in Canada or the Copyright Royalty Board and cable rebroadcast in the US, and sometimes a judge does it, as in the oversight of ASCAP. Is Judge Evans prepared to pull the CCC before her and keep them there in order to ensure a functional licensing scheme?

Of course, all of this speculation is irrelevant if the Judge accepts the fair use argument that is advanced by the defendants. Their brief states that argument very compellingly, in my opinion. Two points struck me with particular force.

First, the defendants address the frequent claim made by publishers that the Supreme Court, in Campbell v. Acuff Rose Music, has limited fair use to situations that are transformative and that copies for educational purposes are not transformative. The defendants proposed Conclusions of Law point out that Campbell itself expressly renounced this claim in two ways. First, it explicitly noted that “transformative use is not absolutely necessary for a finding of fair use.” Then, in a footnote (number 11), the Campbell Court stated that “The obvious statutory exception to this focus on transformative uses is the straight reproduction of multiple copies for classroom distribution.” You seldom get such devastating language to direct against one of your opponent’s central contentions.

The second really important aspect of the defendants’ proposed Conclusions of Law is this simple (if grammatically awkward) statement, which ought to be repeated like a mantra whenever fair use is discussed, because it is so obviously right: “The fair use defense would mean nothing if it addressed only those uses that plaintiffs have not developed a mechanism by which to charge for such portions of the work.”

Fair use is frequently described as flexible and as an “equitable rule of reason.” The value of defendants’ arguments in this case is that they aim to defend this reasoned flexibility and ask the judge to avoid both of the common, and mistaken, constrictions of fair use – to either only those cases where an original is transformed or only cases where a “market failure” has occurred. Both of these conceptions would reduce fair use to a mechanical test that would contradict its avowed intent and application over the past 170 years.

Why Can’t I Digitize My (Institution’s) Library?

July 27, 2011 Kevin Smith, J.D. 8 Comments

By David Hansen, J.D., Scholarly Communications Intern

On Tuesday Judge Denny Chin set a deadline of mid-September for Google, the Authors Guild, and the AAP to work out a settlement for Google Books. The lawsuit, filed in 2005, seems to have been going on forever, and I wonder what, in the meantime, libraries can do to move forward. After looking at my own (personal) digital library, I wonder how the same principles regarding digitization might apply to institutional libraries.

Over the weekend I joined Google Music, a service that uploads my collection of music and stores it . . . somewhere. Somewhere in Google’s cloud. With it, I can access my entire collection of music from any computer. It’s great.

What is not great is my internet connection. I’ve had the service for about a week, and at this point only about half of my music collection is uploaded. Uploading large amounts of data understandably takes time, and since Google Music “store[s] a unique copy of Your Music on your behalf,” each and every file has to be transferred. Uploading these copies is generally considered “space-shifting,” which is something that Google –and the courts—have concluded is lawful “personal use.”

Apparently there are other approaches to what Google Music does. Ars Technica has published this article outlining the legal positions of Google Music, Amazon Cloud Player, Apple’s iCloud, and MP3Tunes. All three services provide online streamed copies of user’s music collections. Apple does so with licenses from the record labels.

Google Music and Amazon Cloud Player both seem to operate as a “digital locker,” making unique copies of the user’s own files. They presumably rely on time-shifting cases that make users’ actions lawful, and on the Cartoon Network v. Cablevision case (discussed at length in the Ars article) which held that Cablevision would not be directly liable for “publicly performing” the works in question, although it provided a DVR service that allowed users to record and retransmit their own unique copies of previously transmitted shows. The court in Cartoon Network placed some emphasis on the fact that each user only had access to their own personal and unique copies of the recorded shows.

MP3Tunes acts in a similar way, but with two differences: First, MP3Tunes will delete redundant copies when more than one user uploads identical files. This de-duplication process, while obviously more efficient than the Google and Amazon services, may conflict with the Cartoon Network case because each user accesses one centralized copy of their song, rather than multiple users accessing multiple ‘unique’ copies of the their own recordings. The second major difference is that MP3Tunes is currently being sued by EMI. Most of the suit focuses on the safe harbor provisions of the DMCA, and whether MP3Tunes can be held liable directly, notwithstanding the Cartoon Network case cited above, for “publicly performing” the works in question. But another major issue is whether space-shifting to the cloud is a permissible fair use.

For libraries that want to make digital copies of their print collections—i.e., space shifting—there are some limited exceptions in the law that permit copying for preservation (section 108 of the Copyright act). There is a need, however, to provide more complete digital access to the entire campus community beyond that which is contemplated by section 108. The University of Michigan (along with Florida, Illinois, and Wisconsin) has recently announced that it will be making available to campus users copies of orphan works, held jointly by the University of Michigan and HathiTrust, based on an assertion of fair use and its own risk analysis. The fair use argument relies on the idea that only works in each respective library’s print collection will be made available online to their users through the HathiTrust; one print copy, one digital access. No one is gaining access to books they don’t already own—just different, electronic access to those already in the print collection. The parallel to the ‘digital locker’ analogy that supports Google Music is strong, and the fair use argument for Michigan is bolstered even more by the fact that it isn’t in it for the money (as Google is).

This fair use assertion makes an end-run around section 108, but looking at the fair use factors, it is still appealing. Even more so for Michigan because a large part of the scanned corpus of the HathiTrust comes from Michigan, so for many books it would also be able to make the argument that the digital copies are not just practically the same books that are in its collection, but that they are identical copies of UM books, meeting some of the concerns of the Cartoon Network court. Other libraries have less to rely on in that respect, as fewer (or none) of their physical copies were scanned for inclusion in the database. But the fact that Michigan and these other libraries are only making orphan works available means that even if the fair use analysis is slightly off, there is still almost no chance anyone will be sued. The orphan works identification process that Michigan has used (detailed here) employs a more than reasonably diligent search for copyright owners, and leaves little chance that there are any rights holders available or willing to bring an infringement suit.

Risk notwithstanding, though, I wonder, what’s wrong with a library digitizing its entire collection (not just orphan works) under the space-shift theory? If the library takes those books out of circulation (perhaps in high-density storage) and limits online access to one user at a time (essentially, recreating the limitations of a physical visit to the library), the fair use analysis is still very much in the library’s favor. Google, in its amicus brief in support of MP3Tunes, makes the point well:

“[j]ust as the Supreme Court has held that ‘time-shifting’—recording television broadcasts for later viewing—is a lawful fair use, Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 455 (1984), so too is ‘space-shifting’ lawfully acquired music onto digital music players or cloud-based equivalents, Recording Indus. Assoc. of Am. v. Diamond Multimedia Sys., 180 F.3d 1072, 1079 (9th Cir. 1999). A contrary holding would treat tens of millions of iPod owners who lawfully acquire their media as no better than those who misuse new technologies to pirate music and movies. “

Should space-shifting books be any different? These cases, admittedly, deal with space- and time-shifting for personal uses, and not for uses of educational institutions. That distinction may be critical in the end. But shouldn’t uses for “teaching . . . scholarship, or research” — which are specifically called out in the section of the copyright act that codifies fair use — carry at least as much weight as “personal use,” which has no mention anywhere in the act?

Finally, if a library can digitize its own library and make it available to patrons, can that library pool its digital holdings with other libraries, so that there is no needless duplication of digital copies? Storing these works in digital format is not cheap, and while my meager 20GB music collection has taken a half a week to upload to GoogleMusic’s “cloud”, the creation and duplication of millions of volumes of digital volumes is a monumental and inefficient task. Such a restriction, as amici in the MP3Tunes case have argued, would be incredibly burdensome to both digital libraries and users in general.

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

Careless language and poor analogies

July 21, 2011 Kevin Smith, J.D. 7 Comments

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.

Brilliant!

July 15, 2011 Kevin Smith, J.D.

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.

Unintentional felons?

July 12, 2011 Kevin Smith, J.D. 1 Comment

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.”

A second front

June 9, 2011 Kevin Smith, J.D. 14 Comments

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.

Who pays for copyright enforcement?

May 17, 2011 Kevin Smith, J.D. 1 Comment

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.

A nightmare scenario for higher education

May 13, 2011 Kevin Smith, J.D. 75 Comments

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.

Old law and modern lawsuits

May 12, 2011 Kevin Smith, J.D. 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.

Discussions about the changing world of scholarly communications and copyright