Category Archives: Copyright Issues and Legislation

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

Another fair use victory for libraries

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Note to readers — a commenter has correctly pointed out that I was a bit over-enthusiastic in this post.  It is not strictly true that no infringement has been found in any of the cases against libraries.  In the Georgia State case the Judge did find five instances of infringement among the seventy-five digital excerpts that were challenged.  But the Judge also held that the University’s fair use policy was a good faith effort to comply with the law and, for the purpose of awarding costs and attorneys’ fees,  determined that GSU was “the prevailing party.”  GSU was simply ordered to revise its policy to reflect places where the Judge felt it had not adequately defined fair use.  To be adequately cautious, however, my comments at the end of the first paragraph and of the full post should have said that fair use has been an effective tool for academic libraries that has been upheld in each case and has prevented any significant liability.

We knew some time ago that the second complaint filed in the copyright infringement case brought against UCLA by the the trade association AIME over streamed digital video had been dismissed.  But last week Judge Consuelo Marshall filed her order that explained the grounds of that dismissal.  What we have learned is that this case is a slight victory for fair use in libraries.  On the specific issue we do not have clear guidance, just an affirmation that fair use arguments for streamed digital video are not unreasonable or obviously wrong.  But it is helpful to see this ruling as part of an overall picture, one in which all three cases claiming copyright infringement by academic libraries which were defended on the basis of fair use have now been decided at the trial court level and NO INFRINGEMENT HAS BEEN FOUND.

In the AIME v. UCLA case, the reasons for the dismissal are primarily that the plaintiffs lacked standing  — the legal right to seek judicial redress of a claim — and that the defendants have either sovereign immunity or qualified immunity based on their status as state officials performing their jobs.  A lot of the interest in the ruling is in the part that discusses qualified immunity, because that holding involved deciding whether or not a reasonable person in the position of the official charged would have know that his or her actions would be “clear violations of established copyright law.”

As for the standing issue, the Court says pretty much the same thing I said at the time the second complaint was filed — the plaintiffs have not shown any facts that make this complaint different from their first one, which was dismissed earlier.  These plaintiffs simply are not the right people to bring this case, and the folks who would be in a position to claim copyright infringement have not stepped forward to support the complaint.  Perhaps those other parties understood the risk that there would be another positive ruling for fair use, and did not want to take the chance.

But as I say, the real action is on the issue of qualified immunity, where a plaintiff must prove, to overcome such immunity, that the defendants either knew or reasonably should have known that they were infringing copyright law.  In the light of what the Judge calls the “ambiguity” of the fair use issue, she declines to so rule, and hence dismisses the complaint against these defendants (including library and IT staff) because of their qualified immunity.

Judge Marshall’s fair use analysis is very cursory, but still quite interesting.  On the first factor, the purpose of the use, the Judge simply states that it favors fair use, presumably because the use is educational and non-profit.  This is no surprise.  On the second factor, the Judge rec0ognizes that the works involved, performances of Shakespeare plays, are creative, but also that they are being used in an educational context.  She finds this factor to be neutral.  As to amount, Judge Marshall thinks this factor weights “slightly” against fair use — the entire films are being streamed, of course, but she finds “compelling” the argument that this streaming is analogous to the “time shifting” upheld by the Supreme Court as fair use in the Sony video recorder case.  Finally, as to the impact on the market factor, the Judge says this factor FAVORS fair use because there is no difference in a streaming situation as to market harm than would be the case in the clearly permitted situation where a classroom full of students watched an entire movie together.  The recognition of this essential similarity as to market harm strikes me as fundamentally important.

So the Judge holds that “there is, at a minimum, ambiguity as to… fair use.”  In fact, her analysis would be very likely to uphold fair use, but she does not need to reach such a ruling in order to find in favor of qualified immunity and dismiss the complaint.  Judge Marshall then goes on to examine the licensing terms under which UCLA obtained these videos, to see if those terms state unambiguously that streaming is not allowed.  Here too she finds ambiguity, and thus upholds qualified immunity regarding that assertion as well.

Legally, the bottom line in this case is that all of the claims are dismissed with prejudice, which means that they cannot be refiled, although, of course, the dismissal could be appealed, if AIME and Ambrose Video are inclined to waste even more money.

For libraries, I think there are several takeaways from this case:

1.  The fair use issue as to streamed digital video was not decided.  This is not a blanket authorization for schools to proceed with such projects; they still require careful thought and a local decision that balances the risk of copyright litigation with the pedagogical value of proceeding.

2.  It is very important to look at licenses for the videos in question, where they exist.  It seems clear that an unambiguous license would have overcome qualified immunity in this case.

3.  The grounds for this dismissal apply only to the state officials involved; the same analysis would not apply to a private institution, although the fair use analysis, of course, could be raised by such a college or university.

4.  Overall, the atmosphere for fair use on campus is a lot better today today than it was six months ago.  We have seen a pretty convincing victory in the Georgia State e-reserves case, a sweeping one in the HathiTrust case, and a tepid affirmation of fair use (probably!) in this streamed video case.  Although the first two of those cases are being appealed (we do not know if AIME will appeal this latest decision), we now know that courts are quite sympathetic to fair use by academic libraries and on college campuses.  We know that most of the arguments that content providers have long offered to discourage reliance on fair use have been rejected.  We know that no campus has yet been found guilty of infringement when it makes reasonable fair use of lawfully acquired materials for limited teaching purposes.

Copyright Issues and Legislation

A foray into politics

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This site has been quiet for about three weeks; for much of that time I was in South Africa, first as a tourist and then to attend the Berlin 10 Conference on Open Access that was held in early November at the University of Stellenbosch.  I hope to write about the conference and the South African context in the near future.  But today I could not resist a foray into politics.

On Friday, the U.S. House Republican Study Committee, which is described as a policy development group for the more right-wing Republican members of the House, issued a memo on copyright reform.  I admit that I flipped out when I saw it; I have never been a one-issue voter, but this memo had the potential to turn me into one.  As I will explain in a minute, it was, in my opinion, a home run explanation of what is wrong with copyright policy making in the US today and what solutions would look like.  It suggested a radical rethinking for the Republican party about its approach to intellectual property law, one that is actually much more in step with other values that are supposed to motivate the GOP.

Alas, however, it was not to be.  By Saturday afternoon the Executive Director of the Study Committee issued a memo withdrawing the document and apologizing for its release.  His explanation was that it had not been properly “reviewed,” but the far more convincing explanation, offered by Mike Masnick of TechDirt, was that the lobbyists for the recording and motion picture industries had gotten very busy very fast and threatened the GOP with the loss of lots and lots of campaign donations if the memo was not retracted.

There are two ironies in this story of realpolitik over reason.  The first is that Derek Khanna, who wrote the memo, really got the analysis right.  The other is that sticking to their guns on the topic might have been a very fruitful political strategy for the GOP as they seek ways to capture the hearts and minds of younger voters.  The politics of the situation is nicely explained in this article from Slate (which has its own take on the politics, of course).  But I would like to look at the substance of the memo for a minute.

Khanna’s memo is built around three “myths” about copyright that he debunks.  The first is that copyright is primarily intended to compensate creators.  The second is that copyright is all about free market competition.  And his final myth is that the current copyright regime is the best way to foster innovation and productivity.  To me, it is very obvious that the first and three of these are, indeed, myths.  A quick glance at the clause authorizing Congress to pass copyright laws makes it clear that the purpose for those laws is the public good, and that compensation for authors is an instrumentality that is justified when, and only when, it helps serve that public purpose.  And there are few people who are not employed as lobbyists for the content industries who would seriously maintain that our current regime is actually the best balance of protection and access to foster innovation.  Take a look, for example, at this blog post by federal Circuit Court Judge Richard Posner for a concise explanation of how badly our current patent and copyright laws over-protect and therefore hamper productivity.

To me the real surprise was that this policy strategist even had to address the myth that says that “copyright is free market capitalism at work.”  Copyright, of course, is a government-granted monopoly; the very antithesis of free-market capitalism, it is government protectionism.  Indeed, one of the reasons that copyright has to be so carefully balanced is because it can so easily have anti-competitive effects, lending government support to favor one industry or type of business over others.  This is why our anti-trust laws have actually developed special rules to address claims of restraint of trade in industries that rely on the artificial monopoly conferred by IP laws.

For a political party that advocates free-markets and the reduction of government interference, copyright reform seems like a perfect platform, especially as it would appeal to younger, tech-savvy voters. It was refreshing to see that at least one policy strategist recognize that this was not just an important issue, but one that could capture the attention of the electorate.  Unfortunately, the strength of the content-industry lobbyists appears to have won out, at least for now.  But I am hopeful that the Republicans, and maybe even Democrats (although they have traditionally been even more dependent than the GOP on money from Hollywood) will continue to wake up to the fact that our current laws create an artificial thumb of the scale of markets in the US, putting the government in the position of supporting legacy content industries at the expense of new and innovative businesses.

Copyright Issues and Legislation, Fair Use, Technologies

Coming clean on technological neutrality

It is not a case that draws much attention from higher education circles, but the case of WNET et al. v Aereo has drawn an amicus brief that should worry anyone who is interested in how copyright law serves or inhibits innovation and competition.  What is most disturbing is that the gross misunderstanding of how copyright law is supposed to work has come from former U.S. Registrar of Copyright Ralph Oman, now a “Professional Lecturer” in IP at the George Washington law school.

The case is brought by television broadcasters against a service that offers to take broadcast TV off the air and stream what it receives to its online subscribers.  I have no opinion on the merits of the case, although it is interesting to note, as this outraged post about Oman’s brief does, that the service was carefully structured to try to remain within the boundaries of the law as the courts have interpreted it.  And, as someone who has long wanted to “cut the cable,” I might be interested in the Aereo service if it is upheld.  But it is not the arguments or the merits that should concern us, it is the approach that former Registrar Oman takes in his brief on behalf of the plaintiffs.  Here is the central quotation that is so troubling:

Whenever possible, when the law is ambiguous or silent on the issue at bar, the courts should let those who want to market new technologies carry the burden of persuasion that a new exception to the broad rights enacted by Congress should be established. That is especially so if that technology poses grave dangers to the exclusive rights that Congress has given copyright owners. Commercial exploiters of new technologies should be required to convince Congress to sanction a new delivery system and/or exempt it from copyright liability. That is what Congress intended.

This is an extraordinary statement, suggesting that the Copyright Act was intended to force all innovators to go to Congress before beginning any service that might threaten some established form of exploiting the rights of copyright holders.  It is a recipe for economic suicide in a digital world, apparently willing to sacrifice the gains we can make through rapid innovation, new markets, and online opportunities to the goal of protecting the legacy industries from any need to adjust their business models.

More to the point, the law is not silent or ambiguous on how new technologies and business that are built on them should proceed.  Registrar Oman starts his brief by stating that,

There can be no serious dispute as to whether rights under the Copyright Act are broad, subject only to specific, narrow limitations enacted by Congress and that new developments in technology are not supposed to be able to truncate those rights.

To make this statement, Registrar Oman conveniently forgets fair use, which is not mentioned once in his brief.  Now I do not know if a serious fair use defense was raised on behalf of Aereo (they are apparently in the Appeals Court over the refusal of the District Court judge to grant a preliminary injunction).  But fair use is in our law, even if Registrar Oman (who helped draft the 1976 Act) apparently does not like it.  In fact, it is the first of the exceptions to the exclusive rights that is listed in the Act, and it is not specific and narrow.  It is deliberately open-ended and flexible, giving our law space to accommodate new technologies (like the VCR) and even new business models (like Google).  Apparently Registrar Oman wants to ignore fair use, and would prefer to force each of those new technologies and businesses to go to Congress for explicit permission before offering their products and services.  How much economic growth and how many new jobs would be lost if Congress and our courts took this approach?

The real problem with this brief, or perhaps the place where it is most honest, is that it seems to completely jettison the argument that copyright law should be technologically neutral.  It is ironic because the content industries often use that assertion to suggest that precedents from the print environment should be applied, when they are favorable to those industries, directly to digital activities.  For example, the plaintiffs in the Georgia State case used the claim that copyright is supposed to be technologically neutral to support its analogy between what GSU was doing with electronic reserves and the earlier cases about printed coursepacks.  In fact, the plaintiffs in that case even complained that the judge had applied a different standard to digital copies, which was nonsense.  At that point, technological neutrality was a battle cry.  But now, when such neutrality would seem to favor Aereo, Registrar Oman argues on behalf of the rights holders that every new technology should be treated differently, presumed to be illegal, and subjected to legislative scrutiny before being allowed.  What has happened?

The most obvious difference is that in the GSU case, the rights holders thought that the argument about technological neutrality would help them.  They hoped the Judge would ignore the distinction between the coursepack cases, in which a commercial intermediary was involved, and the entirely non-profit, educational situation at GSU.  By asserting that “the same law” applied in print and in the digital realm, they were hoping to obscure a substantive difference behind a rhetorical smoke screen.  As I have noted before, talk of technological neutrality is often more of a rhetorical strategy than an actual commitment.  In the Aereo case, the law as it stands looks more favorable to Aereo’s business model, so this brief on behalf of the rights holders takes a new and shocking tack by asserting that every new technology should be presumed to be infringing until proven otherwise.  Registrar Oman seems to be saying that we should not even try to apply the current law to new situations, but to presume that new technologies are always bad things and make their proponents argue their case to Congress before any new innovation is allowed.

The problem, of course, is that the GSU plaintiffs were right; the law really is supposed to be technologically neutral.  The same law is supposed to apply in both the print and the digital realm.  Where the GSU plaintiffs were wrong was in the application, not in the principle they stated.  And where Registrar Oman is wrong is in suggesting that we cannot even try to apply the law to new technologies.  The presences of fair use in our statute is testimony to the intention to give US copyright law the flexibility to adapt to new technologies, so it is no surprise that the former Registrar can only make his argument by ignoring its existence.

Technological neutrality is something that copyright laws need to strive for, because it is what avoids the need to make large-scale changes in the law every time a new technology — the player-piano, the radio, or the video recorder — comes along.  But it is a goal from which the law often falls short.  As Tomas Lipinski argues in this article, the control that the content owners want to assert over digital uses has had the effect of undermining the principle of technological neutrality.  It is a compelling, and distressing, argument; if one needs additional evidence for it, one need look no farther than the radical proposal made by former Registrar Oman to treat each new technology with suspicion and presumptive condemnation.  Presumable Oman’s brief is just another strategy, made to assist a particular plaintiff and with no thought about the consequences his argument would have as policy.  Because those consequences would be disastrous.

Copyright Issues and Legislation, Fair Use, Libraries

A big win for fair use and libraries

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What a stretch of four months it has been!

First, in July, we had the ruling in the Georgia State lawsuit affirming that most of the excerpts for teaching that were challenged as copyright infringement were actually fair use.  The decision is being appealed, but libraries go in to that appeal on the winning side, which is always the better place to be.

Then, last  week we learned that the lawsuit filed against UCLA over digital streamed video had been dismissed for the second time.  The dismissal, so far, is only noted in the minutes taken by the Clerk of the Court during a hearing, which are filed in the docket.  So we do not know why the case was dismissed, although it seems to be the same reasons the first one was — because the groups bringing the suit either do not own the rights they are trying to enforce or already granted a license broad enough to cover the use they now object to.  More importantly, we do not yet know if the dismissal was with prejudice or without, meaning whether or not the plaintiffs will be allowed to refile the case again.

But tonight is the big news, in the lawsuit brought against the HathiTrust and five of its university partners by the Authors Guild, several foreign associations similar to the AG, and a handful of named authors, including Fay Weldon and J.R. Salamanca.  In that case, Judge Harold Baer of the Southern District of New York has ruled on various motions for judgment on the pleadings and summary judgment, and he has completely vindicated Hathi and the libraries.

A copy of the ruling is here.

A lot is happening in this opinion, which I will try to sort out briefly.

First, the plaintiff’s motion asking the Court to rule that fair use was not available to the libraries as a defense, alleging that because libraries had the benefit of the specific section 08 exceptions they should not also be able to assert fair use, was denied.  The Judge spent comparatively little time on this ridiculous claim, which flies in the face of the clear language of section 108 itself.  He entirely rejected the argument and dismissed the claim.

Second, the Judge ruled on a motion for judgment on the pleadings (also called judgment as a matter of law) raised by the defendants (the libraries and HathiTrust) that asserted two things.  First, it argued that the copyright law does not allow associations like the Authors Guild to sue on behalf of its members.  On this argument, the Judge agreed as to the US association (the Authors Guild), but held that he would not foreclose a foreign association from bringing a suit because of our treaty obligations.  The second argument was that the whole issue about the Orphan Works project proposed by HathiTrust was not “ripe” for a decision because nothing had been done as of yet.  The Judge declined to decide that there was a risk of infringement until and unless the project got underway.  So on this motion, the defendants won two-thirds of their arguments and the one they lost, about associational standing for foreign organizations, turns out not to matter.

Because the real news is that the Judge granted the defendants motion for summary judgment on the issue of fair use.  Judge Baer found that the arguments made that the mass digitization project and the Hathi Digital Library was fair use were so strong that he made the decision without a trial, on summary judgment.

The Judge did a four factor analysis to arrive at his conclusion, and it is worth looking at that analysis.

On the first factor, Judge Baer first held that the purpose of the use was research and scholarship, which are favored in the fair use statute.  But he went on to hold that the use of these copyrighted materials in HathiTrust was also a transformational use.  Unlike Judge Evans in the GSU case, Judge Baer cited case law that has determined that a use can be transformational because it has a different purpose, not only when an actual change in content has been made.  And providing a searchable database of books, within copyrighted works only available to the visually-impaired, was, in the Court’s opinion, transformative.

Because the purpose was transformative, the Judge held that the second factor about the types of works involved, was not dispositive, since transformative works of even very creative productions (like “Oh, Pretty Woman”) have been held to be fair.

On the third factor, the Judge said that the amount used, even where entire works ware scanned, was reasonable to accomplish the purpose.

Finally, the Court found that the issue of market harm did not undermine fair use.  There is no direct market competition between the HathiTrust and any existing market for the works in question.  And as for the argument that HathiTrust foreclosed a potential licensing market, the Judge said that rights holders were not allowed to preempt transformative uses because of a potential market.

At the end, Judge Baer concludes with this sentence:

I cannot imagine a definition of fair used that would not encompass the transformative uses made by the defendants and would require that I terminate this invaluable contribution to the progress of science and the cultivation of the arts that at the same time effectuates the ideals of the ADA.

As the last part of this comment indicates, the Judge also upheld the provision of digital files to persons with visual disabilities to facilitate adaptive access, using a combination of fair use and section 121of the copyright law.  Hard to believe that the AG thought it was a good idea to challenge that practice, but they did.  So overall this is a comprehensive win for the libraries and for the important public interest that they serve.

This opinion follows a clear line of reasoning in fair use cases over the past three decades, and it applies that reasoning squarely to library services.  I have bemoaned these lawsuits in the past, but I have to admit that I am beginning to feel grateful for them.  The string of opinions that is now taking shape ought to give librarians a great deal more confidence when they are making reasonable applications of fair use.  Where once I feared a chilling effect, I am now sensing a warming glow.

Copyright Issues and Legislation, Fair Use

Questions about the AAP Google settlement

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There have been quite a few stories about the news that Google has settled with the Association of American Publishers in its long-running lawsuit alleging copyright infringement in the Google Books project.  There are stories in the NY Times, Chronicle of Higher Education and Inside Higher Ed.

As all of the stories note, the terms of the agreement are confidential, so we really do not know much about what has happened.  So there is very little to say, and most of it is grounded on uncertainty.  To a sensible person that would suggest reticence, yet here I am writing a blog post about the settlement.  My modest purpose, however, is to address three questions that I have heard, in order to lower expectations about what has happened.

First, How is this settlement related to the earlier one that caused such a fuss and was ultimately rejected by the Judge?

The answer here is that it is not really related.  That proposed settlement was a “class” agreement that would have bound essentially all authors who owned a copyright.  It was because of its sweeping scope that it had to be approved by the Judge, and because that scope was too sweeping that Judge Chin rejected it.  This settlement, on the other hand, is just between the named plaintiffs — several large publishing houses — and Google.  It makes the publisher half of the lawsuit go away (the Authors Guild is continuing with their part of the litigation), and it sets terms for how Google will deal with books from those publishers.  It does not have any impact on relations between Google and any other authors or publishers, although it acknowledges what has really been the case all along — that Google will withdraw materials if a publisher asks and will enter in to agreements with individual publishing houses.

Second — What does this settlement say about fair use?

As far as we know, the answer is that it says nothing about the key issue in the lawsuit — whether or not the Google digitization for the purpose of creating an index and providing a “snippet view” of in-copyright books is fair use.  That issue is still being litigated, with the Authors Guild as the plaintiff.  For the publishers, there apparently is some language about how much of a book Google can display; it is more than mere snippets, but it is not clear to me how that permission relates to other provisions of the settlement.  In any case, the settlement does not, and cannot, decide the fair use assertion.  In terms of fair use, we know no more today than we did yesterday, before the settlement was announced.

Third, how is this settlement related to the Georgia State decision?

Once again, the answer is that there is no direct relationship.  The settlement is not really about fair use, but rather avoids the question that was addressed directly in the GSU case.  The only relationship is that the AAP, which was a plaintiff in the Google case and has now settled to avoid continued litigation, is also bankrolling half of the litigation costs in the ongoing GSU case.  One could speculate that the the AAP decided to settle with Google because it wanted to avoid another case where fair use was affirmed, or that the cost of the GSU case, especially after the plaintiffs have been order to pay nearly 3 million in fees and costs incurred by GSU and where an appeal has just been filed, caused the AAP to decide on a strategic retreat from the other, probably more expensive, case.  But both of those possibilities are pure speculation.  In fact, the length of time that settlement negotiations usually take make it unlikely that recent events had a direct causal relationship to this settlement, but it is certainly possible that the overall trajectory of the GSU case over the past three months was a partial motive for the AAP move as quickly as possible to settle with Google.

In short, I think there is very little to see here.  I am glad when litigation is settled, as a general principle, because I think agreements are usually better, and more efficient, than lawsuits.  And the educational benefits of the Google digitization efforts are important, so I am glad a little of the pressure has been taken off of those efforts.  But this news of a settlement in the publisher half of this lawsuit is worth only a smile and a nod of approval, I think, before we turn back to the day-to-day struggles of higher education in a digital age.

Copyright Issues and Legislation, Libraries, Scholarly Publishing

The six million dollar fair use standard

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The trial judge in the Georgia State copyright infringement lawsuit filed her final judgment in the case yesterday, bringing that portion of the lawsuit to a close.  The only news left for this final order was the amount of money that the plaintiff publishers would be forced to pay to Georgia State.  Judge Evans had already ruled that GSU was “the prevailing party” and therefore entitled to have the other side pay their fees and costs, and a lot of motions were filed arguing over what those numbers would be.  The final amount (including both attorney fees and court costs) is $2,947,085.10.

Based on the way these things usually turn out, Georgia State and its lawyers probably think this number is too low.  The publishers and their lawyers undoubtedly think it is too high.  The result is that it is probably a reasonable estimate of what it actually cost one side to litigate this case.  So if we want to estimate how much it cost to get us where we are today, that estimate would be about six million dollars, assuming that the plaintiffs spent approximately the same amount that they must now pay to the defendants.

And please do not forget; half of that money is coming from the Copyright Clearance Center, a corporation that says it acts on behalf of scholarly authors and to whom universities pay large sums of money.  Our own dollars — lots of them — are being used to bring this lawsuit to squeeze more dollars out of us.

The result of all this expenditure, thus far, has been a judgment that gives us what the publishers originally said they wanted.  The Judge has articulated a reasonable fair use standard.  It is too rigid for my taste, and too permissive for the publishers, but it is not unreasonable.  If it was left to stand, nothing much would change, except that we would have a greater degree of confidence if we confined our fair use assertions regarding the provision of digital course readings to the boundaries Judge Evans has set.  Doing that would cause some institutions to pay less for permission fees, and some to pay more.  Some schools might push the boundaries a little further, but we probably would not see the widely different interpretations of fair use in this context that we sometimes find today.  Other schools would still find that this risk is too great and continue to stay out of the e-reserve business all together.

To my mind this would not be a terrible result, although it would have cost a terrible amount of time and money to get there.  We could all probably live in a world where Judge Evans’ ruling was the last word in this case.

Unfortunately, the publishers are unwilling to live in such a world; they have already announced their intent to appeal, and they now have thirty days to file that appeal in the 11th Circuit Court of Appeals.  The only excuse for their decision is the desire to force universities to pay even more money than the already do to publishers.  Prices are not rising fast enough, apparently, so greater income from permissions is required.  If other parts of the educational mission of universities have to suffer, that too is price the publishers seem willing to pay.

We can no longer preserve the illusion that all this was about was to provide some certainty about fair use for digital course content.  The publishers spent 6 million and now could walk away with a workable, if unpopular, standard.  Instead the battle against universities and higher education will continue.  How sad.

Copyright Issues and Legislation, Fair Use, Libraries, Scholarly Publishing

A not-very-appealing appeal

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To the surprise of no one, I think, the plaintiff publishers in the Georgia State litigation filed a notice of appeal on Monday.  There has already been considerable coverage of this decision, in, for example, Inside Higher Ed, the Chronicle of Higher Education, and Library Journal.

The actual Notice of Appeal is a very dull document; it merely lists the orders from the District Court with which the publishers take exception, and “respectfully give[s] notice” of the intent to appeal.  The real action yesterday was in the press releases, and there the publishers respect for the District Court was much less evident.  Indeed, there is a good deal of anger, and some crocodile tears, in these public statements.  The plaintiffs in this case have always shown more skill when crafting dramatic press releases than they have with persuasive legal arguments.  It is worth looking at some of the statements from the public statements to assess, primarily, the legal arguments the publishers plan to make, and also their motivations.

First, the Association of American Publishers’ statement asserts that, “There is no legal basis for according less copyright protection to printed books and articles when portions are made available in digital form rather than bound into hard-copy coursepacks.”  Of course, the District Court made no such differential treatment; it is their inability to see the distinction between the coursepack cases and the situation with library reserves that undermines much of the publishers’ thinking in this area.  At least two cases have found that coursepacks printed for colleges and universities by commercial copy shops do not get much scope for fair use.  But Judge Evans’ ruling that there is more scope for fair use when libraries or professors share digital excerpts has nothing to do with any difference in format; it is simply a recognition that the circumstances that the law tells us are relevant in a fair use determination are different in the two situations.  With Georgia State there was no commercial entity making the copies and no charge leveled for access to them.  None.  That is a huge difference between GSU and the coursepack cases; it is directly, massively relevant to the first fair use factor, which disfavored the copyshops but favors Georgia State.

In other words, Judge Evans did not draw an impermissible distinction, as the plaintiffs allege.  She simply did what the law tells her to do; she analyzed the specific circumstances around the challenged uses.  She did it meticulously and arrived at reasoned conclusions based on the facts before her and the factors outlined in the law.

The AAP goes on to claim that the District Court ignored a “lengthy pattern and practice of widespread infringement” and “ignored the forest for the trees” by conducting its inquiry into each challenged excerpt.  Again, this statement indicates a profound misapprehension of how fair use works.  It is precisely intended to be a careful examination of the circumstances around each challenged use.  And the results of that analysis disprove the claim of a lengthy and widespread pattern of infringement.  Judge Evans found only occasional and scattered instances of infringement.

It is difficult to know how the plaintiff publishers think the Court should have proceeded differently.  How do you discover a pattern of infringement if you don’t examine each specified use to see if it really is infringing?  How do you locate a forest without knowing what a tree look like?  To extend the metaphor, the publishers and the Court do not disagree about whether or not there is a forest, they disagree about what kind of trees make it up; where the publishers see infringing yew trees (a symbol of mourning and loss), the Judge saw, mostly, fair use oaks.

In the conference call with reporters that the plaintiff publishers held, reported in the Chronicle article above, there was a lot of talk about how unhappy the publishers are to have to continue their lawsuit against academic libraries.  They professed an allegiance to the principle of fair use that I find extremely disingenuous — whatever they could mean by fair use in that statement, it is not recognizably the right created by section 107 of the U.S. copyright law — and they once again asserted that the District Court ruling would cripple them financially.  The President of Oxford University Press is quoted as saying that the decision would “cut us off at the knees” because of their “razor thin budgets.”  There are many public facts that disprove this statement, not least of which is the 25% increase in profits OUP reported in 2011 or the 116 million pound “surplus” it reported in 2012.  More importantly, Judge Evans had access to specific sales and profit numbers, and found very clearly that permission income was almost never a significant factor for these publications.  These factual findings of a District Court are reviewed on appeal under the standard that “clear error” must be found to overturn them, so this argument is a loser in court, I am convinced, even while it remains popular in press releases.

In short, what we saw on Monday was more of a tantrum than a legal argument.  The Copyright Clearance Center has made it clear that they will continue to help fund this case on appeal (an appeal is a lot less expensive than the initial trial), so more money from libraries will be used to sue libraries.  All the professions of regret and concern for authors still ring hollow; it is interesting that Sage claims to have consulted “textbook authors” about continuing the suit, yet no textbooks per se were involved in the case and it is not clear that the judge would apply the same analysis to textbooks as she did to the works at issue.  If the publishers had spoken to the authors on my campus who write the books and articles they publish, I am confident they would have heard a different story.  For ordinary academic authors, permission royalties are trivial and not an expected part of the publishing “deal” (which is no deal at all for them).  This is not about protecting authors; it is, as it always has been, a marketing ploy, especially for the CCC, that aims to compel libraries to give an even larger share of their budgets to these publishers, and the groups that are financing them, without getting any new scholarship for that money.

Copyright Issues and Legislation, Libraries

Examining an “essential” copyright

The article has been all over the news media, which is unusual for something about copyright. In my RSS feed from a Google search for copyright issues it has appeared at least a dozen times, based on different newspapers that have run it.

What “it” is, is an article from the Associated Press about copyright and the film preservation efforts at the Library of Congress.  Here, for example, is the article on the website of the San Francisco Chronicle, and here it is again from the Seattle Post-Intelligencer.  The article alternates between talking about the LoC’s film preservation project and about copyright protection for film.  The latter is involved, ostensibly, because Congress added motion pictures to the list of protected subject matter in August of 1912, so the article ran on roughly the 100th anniversary of that legislation.

Here is a key sentence from the article, which contains the quote from which the word “essential” in the headline is taken and also some of the confusion of two issues that concerns me:

“Copyright was essential from the very beginning of the industry,” said Patrick Loughney, chief of the Packard campus, a former Federal Reserve bunker… that has been converted into a state-of-the-art archive.  It is a dual safe-haven, intended to protect both the film’s creators and establish a collection that outlasts a film’s box-office haul.

What strikes me as curious is how these sentences are related.  What, specifically, is intended to be this safe-haven that is referred to — copyright protection, or the underground preservation vault?  It is that apparent confusion (toward the end of the article a little bit of light dawns on the issue) that got me thinking about what role copyright plays in the preservation of film.

As a preliminary matter, it is worth noting two points.

First, although the headline says that copyright protection for film is turning 100, that is the anniversary of the legislation; copyright protection itself does not normally last that long, and many of the films being discussed, or that are stored in the vault, are likely to be out of copyright protection and in the public domain.

Second, the role of copyright, and the 1912 addition of motion pictures to the statute, in the earliest development of the film industry is much more ambiguous than this article suggests.  For one thing, the earliest films were registered for copyright well before Congress acted; they were simply registered as sets of photographs.  Thomas Edison was the first to register a film (of a man sneezing) in this way, in 1894.  Filmmakers were thus able to get copyright protection, if they wanted it, eighteen years before Congress acted.  The Third Circuit Court of Appeals upheld the validity of this type of registration in a lawsuit, brought by Edison, in 1903.

But if copyright protection was available prior to the 1912 legislation, its impact may not have been as great as the quote above suggests.  In his book Hollywood’s Copyright Wars, from which the facts in the previous paragraph are taken, Peter Decherney makes the case that the earliest film executives, who began by suing each other over patents and copyright, usually ending by forming associations and arriving at agreements that were much more important to progress than legal enforcement measures were.  This turn toward forms of self-regulation often was the real move that proved vital to innovation and growth; statutory rights and judicial decisions merely set the boundaries that the industry payers then renegotiated.

Now we come to the central issue — what is the role of copyright protection in preservation?  Toward the end of the article we finally get an indication of why the two things have been tied together this way, when Mr. Loughney is quoted saying that copyright “has a practical function.  The physical depositing … of material creates a national archive that can live on for future generations.”  So copyright supports preservation because of its mandate that registered works be deposited with the Library of Congress; it is not the exclusive rights themselves but this “add on” requirement that seems to be the key.  This may indeed be true, but the registration requirement has never been strictly enforced, and under our current regime of automatic protection, registration and deposit rates are minuscule compared to all that is created.

And, of course, actually preserving the materials that are deposited might well have been easier were it not for copyright protections.  The article notes that many early films have been lost, and specifically mentions that nitrate films were not preserved because the medium was so flammable.  One solution to that problem, of course, would be to make copies of those films to a different, less volatile medium.  But to do that might infringe the exclusive rights of the copyright holder.  This is a dilemma that librarians and archivists encounter all the time; copyright creates uncertainty and risk around reformatting, and thus hinders many preservation efforts.  Old films are lost, even today, not just because they were made on materials that deteriorate, but also because excessive copyright enforcement is too risky to make the needed investment in reformatting.

Copyright has certainly been important to the developing film industry, but in a very ambiguous way, as Decherney shows.  It is quite possible that many films were made that would not have been started but for the assurance of copyright protection.  And the deposit requirement has allowed the LoC to amass an important collection.  But it is also true that many early filmmakers were able to get started in business because they could “dupe” other people’s films (just as the early publishing industry in the US often depended on piracy of British works).  And it is true that the collection the LoC holds might be even more valuable if copyright protections had not, and did not even today, prevent or deter reformatting for preservation.

 

 

Copyright Issues and Legislation, Fair Use, Scholarly Publishing

The prevailing party

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Since the ruling in the Georgia State case in May that decided, at the trial court level, the substantive issues of the claimed copyright infringement, I have been telling people to wait for a while before deciding to take any strong action based on that ruling .The case, I keep saying, is far from over.  There is likely to be an appeal, for one thing.  But even prior to an appeal, I wanted to encourage people to wait for Judge Evans’ ruling on the remedy — the steps she would order to fix the handful of actual infringements that she found (five) out of the large number of claims that were submitted to her (ninety-nine, at trial).  The remedy would tell us, I have been saying, how the Judge sees her own ruling.  After all, in their filings since May the two sides have claimed to find radically different things in the Judge’s decision; her ruling about a remedy is her chance to tell us what she thinks the impact of her findings of fact and conclusions of law really should be.

On Friday the Judge filed her order on declarative and injunctive relief, and she clearly told us who she thinks won the case.  The prevailing party is Georgia State University.

Judge Evans addressed both declaratory and injunctive relief in her ruling.  In her declaratory ruling, she announced three principles intended to clarify points in her earlier order that the plaintiff publishers.  They are helpful for understanding her ruling, but not startling, I don’t think:

  1. The holding that excerpts must be “decidedly small” in order for the third fair use factor to favor the use applies to all excerpts assigned from a book for a particular course in the aggregate.  This merely tells us that “an excerpt” means the total amount assigned from a single book; it presumably rules out the possibility of putting one chapter on reserve for a while, then replacing it with a second chapter later on and asserting that only one chapter ( at a time) is being used.  I doubt that many universities would be willing to resort to this trick, but the Judge has explicitly disapproved of it.
  2. The analysis of fair use by Judge Evans does not apply to books that are intended solely for classroom instruction.  The Judge seems to be telling us that there is a more restrictive standard for fair use of textbooks than the one she applied in this case, but she also uses a pretty narrow definition of a textbook.  None of the works that were at issue in this case fall into that category, she says.
  3. Fair use in the context of e-reserves and course management systems is conditioned, she tells us, on strict controls over who can access the excerpts — only students registered for a class — and on notice telling those students that they may not further distribute the excerpts.  I hope this is already our practice in higher ed.

Interestingly, the Judge also adds a “cautionary note” that is outside of her declaratory findings because, presumably, it goes beyond that matter strictly before her.  She notes that where digital licenses were not available from publishers, the fourth factor favored fair use and, in such cases, allowed excerpts longer than her strict definition of “decidedly small.”  How long, we might ask, and the Judge tells us that the longest excerpt she allowed, at 18.5 %, is near the limit of fair use.  So much beyond that point, in her opinion, fair use will not apply even when the other factors seem to support it.  It is helpful for the Judge to tell us this, although other courts might find that this approach puts too much weight on a single factor.  Certainly such a limit has been rejected by higher authorities in cases where the use was found to be transformative.

When she turns to the matter of an injunction, the Judge rejects the very broad, “highly regimented” injunction sought by the plaintiffs. She feels such restrictive rules, with record-keeping requirements and monitoring, are unnecessary, given that GSU policy was a genuine attempt to comply with the copyright law and that its application resulted in so few actual infringements.  Instead, she limits her injunction to an order that GSU maintain policies consistent with the May 11 ruling and the one from Friday, and that they disseminate those policies to faculty and staff.  To the best of my knowledge, GSU is already doing those things.

The stunner in this order comes at the end, when the Judge must rule on the requests from each side to have the other pay for the costs and attorney’s fees of both.  The Judge must first decide who was the prevailing party.  She recognizes that both sides won on some points, but overall she holds that GSU was the prevailing party.  Even so she does not have to order the publishers to pay GSU’s costs and attorney’s fees, but that is exactly what she does.  She reminds us that of the 99 excerpts over which claims were made at trial, 25 were withdrawn by the publishers and for another 26 the publishers were not able to clearly prove that they owned the copyright.  Also, there were 33 excerpts for which permission for digital excerpts was not available even if it had been sought.  Because of all these situations where the infringement claims were implausible from the beginning, the Judge holds that the plaintiffs “significantly increased the cost of defending the suit.”  And on that basis she orders that the publishers pay the reasonable costs and attorney’s fees incurred by Georgia State.

Early on in the case I wrote that the Copyright Clearance Center, which financed half of the plaintiffs’ costs, was using litigation as a marketing strategy.  Now I hope that the CCC and the others behind this case would learn that that strategy was both counterproductive and much too costly.  Unfortunately, I expect that rather than learn that lesson, they will “double down” on an appeal and, in the process, throw more money that should be spent on supporting new publishing away on the ill-advised project of trying by force to increase permission fees for works that have already been published and sold.

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

Redefining research

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The last month has seen extraordinary changes in the copyright law of Canada, including two Supreme Court decisions that I wish we could import south of the border to the U.S.

At the end of June a comprehensive reform of the Canadian copyright law known as bill C-11 received its final approval in the Canadian Senate and “royal assent.”  It seems that this means C-11 is now formally the law in Canada, although according to University of Ottawa law professor Michael Geist the reforms do not actually take effect until after there is an “order in council” process that creates the new regulations around the bill.

This new copyright reform contains some very good news for education in Canada.  I have not studied the bill thoroughly, but will note the handful of reforms that seem most important.

First, the exception to the exclusive rights of copyright in Canada that is known as “fair dealing” was expanded by the addition of three additional purposes to the two — research and private study — already mentioned in the provision.  Those new purposes are education, parody and satire.  The way fair dealing works, in order for a finding that an activity that implicated one or more of the exclusive rights was not an infringement because it was fair dealing, a court must first decide if the activity fit into one of the enumerated purposes, and then do an analysis to decide if that activity within one of the purposes was fair.  The Supreme Court of Canada enunciated six factors that are used in this second step of the process, which really look a lot like US fair use.  But the absence of education from the list of dealings that were eligible for a finding that they were fair (the first step in the analysis) was a significant problem for universities and schools.  Bill C-11 remedied that problem, and it has really changed, I would imagine, the debate over the license for universities that has been offered by the collective rights group know as Access Copyright (which recently jumped in price from $3.75 per student to $26).

Another major benefit for universities in the bill, and another reason the Access Copyright license seems less worth the major increase, is that there is now explicit permission for instructors to show films and other works that can be performed to an audience of students on the premises of the institution.  This, of course, sounds a lot like the US provision for face-to-face teaching found in section 110(1) of our copyright law.  There are also new provisions in C-11 that explicitly authorize reproduction by institutions and their employees for the purpose of instruction and that address the rights of distanced students to receive lessons via “telecommunications.”  There is a helpful summary of the impact of C-11 on education here, from the British Columbia Library Association.

Less that two weeks after the royal assent to bill C-11, the Supreme Court of Canada ruled on five copyright cases that had been before it.  Two of those cases had major implications for the definition of “research” in the fair dealing provision which is outlined above.  Collective rights organizations had challenged two practices — Access Copyright had asserted that teachers making copies for students was outside the scope of fair dealing, and a misic licensing organization called SOCAN had made the same assertion about short preview clips of songs that consumers could listen to before buying the complete piece.  Both organizations were seeking additional licensing fees for the challenged practices, and both lost.

In her opinion, Justice Rosalie Abella significantly expanded the definition of research, following a 2004 Supreme Court decision that had stated that the word should be read expansively.  She ruled that those short music clips should be encompassed as research, recognizing that the term can encompass casual information seeking in addition to formal academic study.  And she held that the private research of students does not require that they actually make the copies; that research and researchers can be guided by a teacher without giving up their rights under fair dealing:

With respect, the word “private” in “private study” should not be understood as requiring users to view copyrighted works in splendid isolation. Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude. By focusing on the geography of classroom instruction rather than on the concept of studying, the Board again artificially separated the teachers’ instruction from the students’ studying.

Another important part of these decision about instructional copying is that Justice Abella found little or no harm to the market for published work caused by this copying.  The excerpts copied were short, forcing students to buy the entire books was unrealistic, and there was no link demonstrated between this copying and any evidence of declining textbooks sales.  This sounds quite a lot like Judge Evan’s conclusion in the Georgia State case that permission income for publishers was of negligible importance  and that there was no evidence that the permission fees lost because of fair use actually threatened the well-being of publishing businesses.  I hope we are seeing the beginnings of an international consensus around the idea that limited copying for educational purposes is more important for societies to support than a small additional  revenue stream for publishers is.

The reason I really like this expanded definition of research in Justice Abella’s opinion is that it gets at the heart of the analogy issue that was central to the Georgia State case.  The plaintiff publishers in that case wanted the court to accept a strict analogy between electronic reserves and the commercially printed course packs that were found not to be fair use in the Michigan Documents Services case, while many of us argued that, in the absence of a for-profit copy shop’s involvement, the better analogy was physical reserves, where a copy of a work is made available for students to use (in this case by downloading into their own computers) or not.  By tying the copying done by an institution to the private study purpose of the individual students, Justice Abella makes this latter argument for us.  In cases like Georgia State (and the UCLA streamed video case) the law clearly allows individual students to view and even to copy works for private study.  In both situations, technology simply enables the same group of students to use the materials in essentially the same way, but at their own convenience.  Instructors are, as Justice Abella puts it, simply guiding the students to the resources which they will then use for their private research.

US courts are often quite reluctant to be seen to be influenced by international law.  But at the very least, this ruling from the Supreme Court of Canada shows the plausibility of the analogy that sees traditional, allowable educational activities simply being transferred to an online environment.  The change in technology should not entitle rights holders to additional fees any more than, in Canada, the human inter-mediation of a teacher does.