Category Archives: Copyright Issues and Legislation

Copyright Information Notes, Copyright Issues and Legislation

An amusing chance to review some key ideas

There are probably many readers out there who know who Vanessa Hudgens is.  I did not, until I saw some blog posts reporting on her ongoing lawsuit against website owners who apparently posted nude photos of the actress and singer without her permission; see this report (without the pictures) on the TechDirt site.  Not, I admit, a serious issue of scholarly communications, but it does offer a chance to review some key points about copyright law about which there seem to always be questions and confusion.

First, the subject of a photograph does not have a copyright claim in the picture.  As the post linked to above points out, this has some counter-intuitive results.  One of the best photos of my wife and I together taken in recent years was snapped by a stranger we met in Istanbul who asked me to take a picture of he and his new bride and then returned the favor.  Oddly, he has a copyright claim in photo on my wife and I while I would have a claim in the picture of him, on his camera.  This is a result of the automatic nature of copyright protection, which showers down on a creator as he or she creates.  No such right in copyright accrues to the person whose picture is taken.  In the case of Ms. Hudgens, who is suing for copyright infringement, the ability to make that claim depends on the asserted fact that she took the photos herself, using a cellphone camera.  Were they taken by another person, Ms. Hudgens would not have any copyright claim.

This brings us to the need to distinguish copyrights, which are granted and enforced by federal law, from a right of publicity, which is a state law claim.  Merely as the subject of these photos, Hudgens might still have a claim that her right of publicity has been infringed, even if she had no copyright claim.  There could be a dispute about whether posting these pictures to a website was a commercial use, which is usually necessary to trigger the right of publicity, but I suspect that the website sells advertising and expected the photos to drive up both hits and revenues.  So posting the pictures might well have been the kind of use that would violate Vanessa’s right to control commercial use of her image (as well as other privacy rights, perhaps).

This need to distinguish between the owner of a copyright interest in a photograph (the photographer) and the owner of the publicity right (usually the subject) is the first lesson we can tease out of this case.

There are other ways a subject might get a copyright interest in a photograph, by the way.  First, the photo might be a work made for hire.  In that case, the employer owns the copyright from the start, and the employer might well also be the subject of the photo.  But just paying for a photograph does not make it a work for hire; the photographer must either be a regular employee of the employer/subject or an independent contractor who explicitly agrees in writing that the work will be a work for hire.  Alternatively, the photo might be a derivative work based on a copyrighted work that is part of its subject.  Suppose an artist poses in front of one of her paintings, or that Vanessa Hudgens had been wearing a dress she had designed herself (clearly counter-factual).  In those cases, the subject would have a copyright interest in the photo because of the derivative representation of an original work.

Finally, we can also take from this case a reminder about the role of registration in copyright protection.  The blog post notes that it is “odd” that these photos are registered with the Copyright Office if they really were private self-portraits, as claimed.  Not really.  We should remember that registration is not required for protection — copyright is bestowed automatically as soon as the pictures were snapped — but it is required to bring an infringement action into court.  Thus it is perfectly possible to hold a copyright, have it infringed, then go and register that right before bringing a lawsuit.  In fact, a quick review of the Copyright Office’s records suggests that this was the case here, since the registration data of the photos is October 2009.  If one follows that sequence of events, the range of damages is limited, since statutory damages are not available.  I suppose, however, that if copyright was registered before the infringement took place (and thus statutory damages are sought), one might well doubt the assertion that the photos were intended to be private.

Copyright Issues and Legislation, Public Domain

Taxing culture

Happy New Year to all.

January 1 is traditionally Public Domain Day, in addition to being a day for parades,  bowl games and hangovers.  That is because most copyright laws stipulate that all copyrights the term of which would expire throughout a particular year actually expire on Dec. 31.  Thus, on January 1, lots of works should enter the public domain.  In Europe, January 1, 2010 sees free public access to the poetry of William Butler Yeats and the works of Sigmund Freud.  But here in the U.S., the gerrymandering of our law over the past decades has resulting in almost no new works in our public domain.

There is a great web page on Public Domain Day 2010 here, from the Center for the Study of the Public Domain at Duke’s Law School.

I am particularly struck by the quote on the CSPD page that reminds us that we are the first generation of Americans to deny ourselves access to our own culture.  Almost nothing created in our lifetime will be available to support new creation and innovation by us.  If we are not vigilant, these works will be denied to our children and grandchildren as well.  Nothing except some unpublished works will enter the US public domain through expiration of the copyright term until 2019, and possibly later than that, if the term is extended retroactively again.

These reflections demonstrate very clearly that copyright protection really is, as Lord Macauley said many years ago, a tax on the public.  We continue to pay higher prices for works by Yeats, Freud and thousands of others because copyright prevents free market forces from operating.  We must seek permission, often from descendants who do not know nor care about the control they hold, to make new works based on old.  All these costs are imposed on us by the government, which grants the copyright monopoly ostensibly for the benefit of authors.  But there is no sign that the descendants of Freud or Yeats are benefiting from this absurdly long protection in the US.  Only intermediaries continue to make money, because they do not have to compete in a free market but can charge the public monopoly prices.

Perhaps when the next proposal to extend copyright’s term comes before Congress, we can be intentional about labeling it what it really is — a tax that benefits private interests at the expense of the public.  If its impact was clearly understood, it would be much harder for Legislators to vote for the copyright tax.

Authors' Rights, Copyright Issues and Legislation, Technologies

Dissing incentives

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This New York Times article about “Legal Battles over E-Book Rights to Older Books” caught my eye both because of a usage I dislike in its title and because of its importance in the continuing discussion of how much incentive copyright really provides for writers and other creators.  The article focuses on a dispute between the family of William Stryon and Random House, his publisher, over who has the right to profit from e-book sales of Styron’s work.

I have to say first that I dislike the reference to “e-book” rights because there is no distinct right to publish an e-book.  There are specific exclusive rights within copyright to publicly perform a work and to prepare a derivative work, both of which are important in allowing the creation and distribution of an e-book based on a published novel.  But “e-book rights” is a misnomer; at best a short-hand reference to a set of the enumerated rights in copyright that are involved in e-books.  In the contract dispute between Random House and Styron’s estate, the issue will be the scope of the assignment of these various exclusive rights, not the simple question of who got the “e-book” right since, as the family points out, e-books were unheard of when Styron published his novels and the profoundly moving “Darkness Visible.”

This brief item explains that the actual issue in this case is what “in book form” means in the publications contracts Styron agreed to.

The larger significance of this issue involves e-book versions of much of the great literature of the 20th century.  The length of copyright protection imposed on this cultural heritage is usually justified as providing an incentive for writers to write, artist to paint and filmmakers to “shoot.”  If, as Random House claims in the Styron case, however, the right to exploit new technologies as they develop is encompassed in the original publication contract, this incentive seems even more tenuous than it would ordinarily.  Even if we assume that Styron was more likely to write because he knew his children and grandchildren could continue to profit from his books than he would have been if copyright term was shorter, Random House’s claim that his original publication contract transferred the right to profit from new forms of distribution seems to reduce that putative incentive.  Presumably the family will have less control over the e-book created by Random House than one for which they contract directly (as they want to do), and it seems quite likely that they will profit less, if at all, from a version sold by Random House.

If copyright is really an author’s right, as publishing intermediaries like to claim when they want Congress to enact  stronger protections, should not the right to decide when and how to exploit new opportunities, not considered at the time of an original transfer, remain with the author or the author’s family?  In short,  publication contracts in copyright should be read narrowly to preserve the incentive for authors and others  to create which is the alleged purpose of the law.

This recent article by Professor Rebecca Tushnet about “Economics of Desire: Fair Use and Marketplace Assumptions” considers the incentive structure of copyright in some detail, based on the recognition that many creators create out of desire, or even compulsion, rather than a direct expectation of the money to be made for them or their heirs.  She argues persuasively that the economic incentives that the copyright monopoly creates “largely bypass[es] a persuasive account of creativity.”  Her conclusion that “Copyright law, and general cultural policy, could do more to direct material rewards to authors if we truly believe that monetary incentives will spur creativity” seems to directly address the Styron e-book dispute.  If we are serious about copyright incentives, she suggests, “we need to keep a close eye on which entities are benefiting material from all these new works.”  This is precisely the case with e-books and the literature of the 20th century; disputes like this raise real questions about how genuine our commitment to copyright as an incentive for creativity really is.

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

What wasn’t decided

Sometimes what a court does not decide can be more important than the actual ruling that the court makes.  One newsworthy example of this possibility is the extraordinary step taken by the judge in the file-sharing case of Joel Tenenbaum.  As this opinion piece from Ars Technica reports, Judge Nancy Gertner has finalized the decision holding Mr. Tenenbaum liable for copyright infringement, but has also detailed how she might have ruled if a limited fair use defense had been raised.  To say that her 35-page memo is extraordinary is an understatement; in it she suggests that the defense team’s error in raising a sweeping fair use claim rather than one narrowly tailored to specific circumstances was costly indeed.

Judge Gertner is no fan of copyright laws that hold people liable for accidental infringement, which happens fairly often with file-sharing systems (although not, apparently, in the Tenenbaum case) or hold teenagers liable for hundreds of thousands of dollars over a handful of songs.  In her memo she invites Congress to reconsider some of the draconian provisions of our current copyright statute and also suggests that she might have found some file-sharing, in select circumstances, to be fair use.  But that was not the issue put before her or decided in the case.

An even more significant decision for higher education — or really a lack of a decision — is found in a case from late October in the Southern District of New York involving online solution manuals for copyrighted textbooks.  In Pearson Education & Cengage Learning v. Nugroho Judge Deborah Batts (who I criticized earlier in the year over her Salinger ruling) found copyright infringement in the defendant’s online sale of solution manuals for plaintiffs’ textbooks.  Apparently the solution manuals were identical to ones sold by the textbook publishers themselves, although Mr. Nugroho claims he did not realize this, so the decisions seems to me to be correct for this situation.  There is a nice description of the case here. But, in keeping with my theme, let’s look at what was not decided.

First, this ruling involved the recognition that the solution manuals were derivative works of the textbooks.  This finding was necessary because the copyright in the solution manuals had never been registered, so the court was barred from considing them as independently protected works. The opinion focus on the fact that the solution manuals “have no independent viability” from the textbooks (which were registered), and are therefore considered infringing derivative works.  What is not clear is where the line is after which something is no longer a derivative works, and the “independent viability” test does not seem to be a precise enough answer.  If I take a single problem from a textbook and work out the solution, but do not copy any original expression, that solution may not have independent viability, but I doubt that by itself it is a derivative work.  Indeed, this kind of thing happens all the time when instructors or their teaching assistants provide sample solutions through various course websites and other tools.  Surely not all of these are infringing derivative works.  Let me repeat that I have no quarrel with the decision as it stands, but wonder where its boundaries are, especially in regard to common educational practices.

Another issue that was not decided in this case is when the kind of derivative solutions that I have just described might be fair use.  Fair use was apparently not raised, and it certainly is not considered in the ruling.  Given the fact that entire solution manuals identical to those produced by the companies were being sold without authorization, I doubt a fair use defense would have been appropriate.  But there are certainly situations where the creation of answer sets for problems posed in a textbook could be fair use, perhaps where a small amount of protected expression is copied or the problem represents largely unprotected facts, and the solution sets are available without charge to a small group of students.  Whether this is allowable or not is a fairly common question, especially from teaching assistants, and the important point from the Pearson case is to note that this issue has not been decided.

Copyright Issues and Legislation, international IP

ACTA up

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ACTA, short for the Anti-Counterfeiting Trade Agreement, is a multi-party trade agreement being negotiated in secret by the U.S., the states of the European Union and several other nations.  While its name suggests a laudable purpose, the prevention of international trade in counterfeit goods, the secrecy of the negotiations raise cause for concern.  As details leak out about the contents of the proposed treaty, as such details always do, it becomes clear that much more is happening here than one might suppose.  Indeed, these negotiations are being used to undermine the legal system of copyright in place internationally in favor of a one-way system that benefits special interests at the expense (literally) of consumers.  The more we learn, the clearer becomes the need for consumer groups and others interested in fair copyright to “ACTA up” in opposition to these negotiations.

Not everyone is happy with the secrecy of the ACTA negotiations.  This news report tells of a letter written by two US Senators to the US Trade Representative, asking that the text of the proposed treaty be made public.  They cite privacy concerns, issues involving individual civil rights (such as the right to be free from warrant-less searches and seizures) and fundamental changes to the balance struck by international copyright laws.  One major privacy concern is the possibility of border searches, where customs officials would be authorized to look for and seize allegedly infringing goods, even on laptops carried through airports or across borders.

So what else is in ACTA that has Senators Sanders and Brown so incensed?  There is a nice, short summary of the key provisions of the US proposal here on the blog of Canadian law professor Michael Geist.  But I want to focus on a slightly longer report written about ACTA for the Library Copyright Alliance by Janice Pilch of the University of Illinois.  This Issue Brief nicely explains the context and key provisions being discussed in the ACTA negotiations, and it focuses on the specific concerns of libraries.

Two things particularly struck me in Pilch’s analysis of ACTA.  The first is the harm it could do to technological innovation.  As is often the case, the US Trade Representative apparently sees himself as an agent for the major entertainment industries, and is willing to sacrifice other, developing business models to the protection of their interests.  This is clear in the concern that ACTA will unfairly impose liability for copyright infringement on Internet Service Providers whenever their networks are used to transmit infringing content.  ACTA seems to carry a “three strikes” provision that would require disconnection of Internet users whenever there have been three accusations (not proof) of infringement.  The result would, at least, be a loss of business for ISP and a real fear of developing new communication technologies because of the threat of liability for how those technologies are used.  Worse, some suggested provisions would encourage ISPs to monitor user content and report suspected infringement.  As Pilch notes, the Library Copyright Alliance is asking that ACTA focus on commercial counterfeiting and not penalize particular technologies for the way they are sometimes used.

To me an even bigger concern is that ACTA represents a forum shift in international copyright regulation.  When I was in law school, we spent a lot of time discussing how our procedural rules were intended to prevent “forum shopping” — seeking a sympathetic court even if the area in which that court sat had little connection to the issue involved.  Forum shopping is often costly and unfair, and US jurisdictional rules discourage it.  But in a similar way, the US Trade Representative and the legacy content companies have been forum shopping internationally for a while now.  Pilch recounts the way industrialized nations moved toward international forums like the World Intellectual Property Organization in order to force stronger IP rules on developing nations and are now moving to these multi-party agreements because of the perception that those nations have gained too much influence at  WIPO.  The goal seems to be to find a way to continue to treat developing nations as markets rather than partners, whose own need for technological innovation and infrastructure development are subordinated to the desire to protect the sales of traditional goods produced by the industrial nations.  Such forum shopping also undermines the democratic process, since it uses trade agreements, which do not require legislative approval, to enforce rules the legislature is unwilling to enact into law.

ACTA raises a lot of serious concerns for consumers, fair copyright advocates and those concerned about international development.  Like many other similar attempts to make law behind closed doors, this is an effort where sunlight and transparency is badly needed.

Copyright Issues and Legislation, Licensing

What are we paying for?

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As the lawsuit brought by three publishers against Georgia State University claiming copyright infringement in GSU’s e-reserves and course management systems wends its way toward what seems to be an increasingly likely trial, it has had an unexpected benefit for academic librarians who manage electronic reserves.

As many people already know, academic copyright expert Dr. Kenneth Crews from Columbia University was named as an expert witness in the case this past Spring.  His report on e-reserve practices and argument for broad latitude for fair use is one of the best documents on this subject I have ever seen.  Peter Hirtle, of Cornell University and the LibraryLaw blog, performed a tremendous service by posting this report and some other documents from the case on the Scribd web site.  I have been reading the documents in the case on the Justia web site, but locating the documents attached to filings there is very cumbersome, so I have never considered linking to them here.  Peter showed much more ingenuity and determination than I can muster by providing this easier access to these public documents.

Peter’s post, with links to the various documents, can be found here.

In addition to the expert report, which the plaintiffs tried to exclude from the case, there is also some fascinating material in the “rebuttal expert report” that Dr. Crews filed after the plaintiff’s own experts had filed their reports.  One of the most interesting discussions in this second document, to me, is Crews’ comments on the inadequacy of the licensing market for electronic course readings as it currently exists.  In one amazing section, Crews recounts locating an offer to license permission to two of his own works on the Copyright Clearance Center’s website.  The only problem is that these were works for which Crews had retained the copyright himself, and he never authorized CCC to sell licenses for them.  From this small example, he raises the question of how secure those of us who purchase permission for at least some of our digital course content can feel about what we are buying.

I think many librarians rely on the idea that they are purchasing specific licenses for individual works from the Copyright Clearance Center, but I also know that an increasing number of us are concerned that what we are really buying is insurance.  As a colleague from another institution put this idea to me, “if we are spending enough money with CCC, it would be a horrible business decision for a publisher to sue us.”  The real question, of course, is how much money is enough.  But in any case, this notion of buying insurance for our e-reserves has never appealed to me, and I am pretty sure it is not the way CCC itself sees the licensing transactions it facilitates; everyone would be happier, I think, to believe we are purchasing legitimate copyright permissions.  But by raising the question of whether CCC actually has the right to sell some of the licenses it does sell, Crews makes the situation look more like we are, at least some of the time, paying “protection money” rather than effective licensing fees.

Copyright Issues and Legislation, User Generated Content

Architectural overreaching

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This recent post on the TechDirt blog drew my attention (and that of may others) to an earlier note on the Freakonomics blog about an artist who pays an annual fee plus a percentage of his earnings to the University of Texas, Austin for the right to paint pictures of famous UT buildings like the Texas Tower and to use university emblems, even including the burnt orange color scheme.

On TechDirt, notice of this arrangement provoked a lot of angst.  Many of the comments expressed outrage at the “fact” that ordinary citizens who have to pay a copyright fee for photographs they take of public buildings, because of the copyright protection afforded to architecture.  That this is the state of the law is affirmed by several of those comments.  In contrast, the blogger who wrote the TechDirt post in the first place asked a differently focused question –“why should the painter have to pay a fee at all?”

All of the venting in the comments on this blog post reminded me of an article I have been reading by Professor Jessica Litman, about which I shall say more in another post, in which she discusses the “independent threat to the health of the copyright system” that arises from the “widespread perception of the current copyright system as illegitimate.”  The outraged comments point up this perception, even though they are largely misinformed.  The important question to address in this particular situation is really that other one — why pay a fee at all? — since the answer should allay some of the outrage.

The basic response to the concern for photographers and artists is that the copyright law provides an explicit exception, a limitation on the scope of the right in architectural works, that makes most drawing, paintings and photos of buildings non-infringing.  Section 120(a) of the Copyright Act (Title 17 of the US Code) says:

Pictorial Representations permitted — The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing or public display of pictures, paintings, photographs and other picotial representations of the work, if the building in which the work is embodied or is ordinarily visible from a public place.

So there is no way under copyright law for UT Austin or any other building owner to prevent, or extract fees, for paintings and photographs of such buildings, either because they were constructed before copyright protection extended to buildings (as opposed to just plans) or because of the exception quoted above.

Other types of protection that could allow the extraction of a fee from the artist would usually be trademark issues.  University emblems will almost certainly be subject to such protection.  The issue of the burnt orange color scheme, however, is much more doubtful, especially after the decision earlier this month involving a similar issue around an artist’s use of Alabama’s crimson colors in the U.S. District Court for Northern Alabama.

So to return to the question of why the artist should pay this fee, one possible answer, I think, is that he wants to.  For paintings of buildings on the public property of the University, such a fee is probably neither required or enforceable, unless there are trademark elements included.  But the artist could have entered into a voluntary licensing agreement with the University, perhaps out of a sense of loyalty or fairness.  Or, of course, he may just be badly misinformed.  Unfortunately, we frequently encounter situations in which someone asks about a license in a situation where none is required and ends up paying an unnecessary fee.  Copyright owners (or putative owners) have little incentive to correct these misapprehensions.

Authors' Rights, Copyright Issues and Legislation

Copyright should be an author’s right (part 2)

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As promised in the last post, here is a very different look at the copyright incentive and the need to be thoughtful and cautious when we talk about copyright as an author’s right.

In the Autumn 2009 issue of The American Scholar, William J. Quirk writes an absolutely fascinating reflection on the finances of F. Scott Fitzgerald, whose tax returns and yearly financial ledgers were preserved and form the basis for Quirk’s essay called “Living on $500,000 a Year.”

The essay will be of interest to many people who are not obsessed with copyright issues, but one line struck my obsession very deeply.  According to Quirk, when Fitzgerald died in 1940, “his estate was solvent but modest – around $35,000, mostly from an insurance policy.  The tax appraisers considered the copyrights worthless.”  Fitzgerald’s copyright, of course, were not worthless over time.  As Quirk tells us elsewhere, the royalties from the sale of The Great Gatsby continue to generate about half a million dollars every year for the trust set up by Fitzgerald’s daughter Scottie to benefit her children.

This would seem to be one of the rare cases where the long term of copyright protection (Gatsby, published in 1925, will be protected until 2020) continues to benefit the descendants of the author.  Usually, of course, copyrighted works have ceased to generate any income at all after only a few years, and those who inherit the rights generally neither know that they hold them nor get any benefit.  Fitzgerald, however, arguably presents a strong, if unusual, case for long-lasting copyright protection.  But when we look deeper, we see that the incentive that copyright is supposed to provide probably was overblown even in this case.

First, it is not very likely that the knowledge that his writings would make his grandchildren wealthy really played any part in Fitzgerald’s decision to write his novels.  Indeed, Quirk’s essay tells the story of a man driven to work partly by the need to make money to keep a roof over his head from day to day (which is why he wrote short stories) and partly by the need to express himself (which is what he wrote his novels to do).  The copyright incentive worked in the short term – it made it possible for Fitzgerald to sell his stories and novels for relatively healthy sums – but all of that incentive was immediate.  The thought of riches two generations in the future was no part of what made Scott write.

Also, if the copyrights were considered worthless at his death, it is hard to see how Fitzgerald could have imagined profits for his grandchildren.  Even in this case, the incentive argument for an average copyright term of 95 years rests on the absurd assumption that authors can predict future success in the face of present failure (or perhaps that they are even more deluded than the rest of us).

Even if the copyright incentive can work in some cases, of course, it must remain in the hands of the authors.  If Fitzgerald had transferred his copyright to publishers, as is common practice today, there is little chance that his grandchildren would be enjoying all of that money, especially since there was a substantial period of time during which no one could anticipate the rebirth of interest in his books.  Once again we come to the inescapable conclusion that the justification for strong copyright protection, which is the incentive it provides to authors, is only valid if copyright remains in the hands of those authors.  To be effective at all, copyright must be, and remain, an author’s right.

Authors' Rights, Copyright Issues and Legislation, Scholarly Publishing

Copyright should be an author’s right (part 1)

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It seems like such a simple point.  And the rhetoric of authors’ entitlement to the fruits of their labors has always been prominent in copyright debates, although it was usually on the lips of printers and publishers whose real concerns were much different.  Two very different articles have once again led me to reflect on the importance of keeping authors (broadly defined as anyone who actually creates the intellectual property that is subject to copyright) at the forefront of copyright discussions and decisions.

First there are these stories about file-sharing of scholarly articles amongst medical researchers – one from the Chronicle of Higher Education here and the other from Techdirt here.  The Chronicle is particularly scolding in its tone, and it evokes the misnomer “piracy” in its title.  But aside from that commonplace rhetorical strategy, I want to emphasis two points raised by these reports.

First, the estimate of how much money journal publishers would lose by this practice, which the Chronicle sets at $1.4 million per year, should be taken with a ton of salt.  As has become very well known in recent times, these estimates are usually built on false assumptions.  The recording industry, for example, often assumes that each unauthorized song download costs the industry the full price of a CD.  But there is no reason to believe that that is true; the consumer might be unwilling to pay for an entire CD to get one song and prefer to forgo the music altogether or pay to download a single track if the free option were not available.  Likewise, an article shared over a peer-to-per network does not translate to a lost subscription or even, necessarily, to a lost per-article fee.  We just do not know how much access would be worth to a consumer, and the copyright monopoly has prevented us from ever getting reliable market data.

Second, we should remember that there is a big difference between music file-sharing and the swapping of academic journal articles.  In the latter case, academics are on both ends of the transaction; they are the authors as well as the consumers of the articles that are exchanged.   If it were not for the academic practice of giving away copyright to publishers, this would be no big deal at all.  Because of the lack of a financial incentive for academic authors, file-sharing of academic articles causes no economic lose to producers.  What makes it newsworthy, and, from the academic point of view, necessary, is that copyright is held by entities other than the authors.  By transferring copyright wholesale, instead of granting temporally-limited licenses to publish, academic authors have help create the access problem they are now trying to solve with file-sharing networks.  That doing so is potentially an infringement of copyright is evidence of how harmful this practice has become to the fundamental mission of colleges and university.

And this gets me back to the point about copyright as an author’s right.  For copyright to function, it must serve the needs of creators; if it does not, its fundamental purpose, which is to create incentives that encourage authorship and other forms of creative expression, is defeated.  When academic authors give away their copyrights, and then have to resort to “illegal” file-sharing to get access to fundamental research, the copyright system has broken down.  Only by reclaiming their copyright entitlement can academic solve this problem.

In a few days I will look at this problem of copyright as an author’s right from a very different perspective, based on an article about the finances of F. Scott Fitzgerald.

Copyright in the Classroom, Copyright Issues and Legislation

Through the copyright looking glass

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It is getting both monotonous and annoying to write repeatedly about badly reasoned court decisions in the area of copyright.  Unfortunately, when they directly impact higher education, we cannot ignore these pernicious errors by our federal courts.

Earlier this month, a district court in Michigan handed down such a decision in yet another “course pack” case in that state.  There was a twist this time, however, which the court chose to ignore.  In this case, brought by Blackwell, Elsevier, Oxford, Sage and John Wiley publishers, the copy shop received photocopied course packs from professors, than handed them to individual students who made copies for their own use.  Amazingly, the court found that this practice constituted direct infringement by the copy shop of the copyright holder’s exclusive rights of reproduction and distribution.

The problem, of course, is that no employee of the copy shop took any action that actually implicated either of these rights.  The shop, owned by Excel Research Group, actually made no copies of any of the material over which the suit was brought.   Judge Avern Cohn contemptuously dismisses this point, asserting that “the fact that the students push a button on a copier in the manner described is of no significance.”  But such facts are exactly what are significant in legal reasoning, and the judge offers no principled reason for ignoring this fact other than his apparent desire to see the plaintiffs win their case.

Even more troubling was the treatment of the distribution right, which the court said was infringed by the shop handing out the course packs it was given.  For this to be true, those copies would have to be unlawfully made, so that the doctrine of first sale did not apply to them.  But Judge Cohn made no such finding; he simply noted that the packs were brought to the shop by professors who assigned the readings to their students.  Again, the judge seems disinterested in either the details of the law or the facts before him; he simply appears anxious to arrive at the conclusion he thinks is desirable.

This startlingly bad reasoning serves a purpose for both the court and the publishers, of course.  It is the only way, albeit one that requires ignoring both law and facts, to hold the copy shop liable without also saying that the copies made by faculty members and students were themselves infringing.  The shop’s liability, if any, is clearly contributory to direct infringement by students and their instructors.  But the court did not want to hold this way, and I am sure the publishers did not ask them to.  To find direct infringement would be so obviously to attack the basic necessities of education, and would so clearly contravene the intention of Congress when they included “multiple copies for classroom use” in the list of examples of fair use, that it was too politically dangerous.  And publishers would fear, no doubt, a decision that would suggest to their customers that their products truly are unusable. So rather than find direct infringement by teachers and students so as to hold the copy shop indirectly liable, the court rendered an incoherent decision in which Excel is held liable for directly infringing copyright without making a single copy.

There is some excellent analysis of this decision by Peter Hirtle here and by Shourin Sen here.

The result of this case is similar to what we have been decrying for some time now — a creeping expansion of the exclusive rights in copyright way beyond the boundaries Congress set for them.  Here that expansion has been abeted by a judge who apparently sees his role as a kind of knight-errant, righting every wrong he perceives, regardless of the legal foundation.