Category Archives: Fair Use

Google Books, Fair Use, and the Public Good

Note — thanks to several readers who pointed out that I had carelessly misspelled Judge Leval’s name in my original posting.  That error has now been corrected.

On Friday the Second Circuit Court of Appeals issued its ruling in the appeal of the Authors Guild lawsuit against Google over the Google book search project.  The decision was a complete vindication of the District Court’s  dismissal of the case, affirming fair use and rejecting all of the counterarguments offered by the Authors Guild.

As it happens, I was traveling when the decision came down, confirming a troubling tendency of the federal courts to issue important copyright opinions when I am out-of-pocket.  (My wife says that it is not about me, but what sense does that make?)  In any case, that slight delay allows me to benefit richly from the analyses posted by some very smart colleagues.  Here are several great places to read about the decision:

From Brandon Butler of American University.

From Corynne McSherry of the Electronic Freedom Foundation

From Krista Cox of the Association of Research Libraries

From Carrie Russell at the American Library Association

I want to add, or really just pull out from these previous posts, three points that I think are especially important.

First, Judge Pierre Leval, who wrote the opinion, does a nice job of drawing a line from the idea of transformative uses to the public purpose of copyright law.  This is hardly surprising, since it was Judge Leval who wrote the 1990 article that coined the term transformative use and had such an influence on the Supreme Court in its 1994 decision in Campbell v. Acuff-Rose Music.  In this ruling, Judge Leval reminds us quite forcibly that the primary beneficiary intended by copyright law is the public, through “access to knowledge” (p.13) and “expand[ed] public learning” (p. 15).  Economic benefits for authors are instrumental, not the ultimate goal of the copyright monopoly.  Then Judge Leval explains how this analysis of transformation serves those goals, clarifying why fair use is an essential part of copyright’s fundamental purpose.  He tells us that transformation is an answer to the question of how a borrowing from a copyrighted work can be justified.  The court, on behalf of a rights holder, asks a user “why did you do this?”  When the answer to that question is “because I wanted to make a new contribution to knowledge,” that is a transformative purpose.  And, by definition, it is a purpose that benefits the public, which justifies whatever minor loss a rights holder might suffer from the use.  The second step in Judge Leval’s  analysis, asking if the new use is a market substitute for the original, ensures that that loss is not so great as to outweigh the benefit. Thus we have a coherent analysis that recognizes the public purpose of copyright and still respects it chosen method for accomplishing that purpose.

Another important thing we can learn from Judge Leval’s opinion is about the difference between a transformative use and a derivative work.  The Author’s Guild (really some individual authors set up as plaintiffs because the AG has been found to lack standing to sue in this case) argues that allowing the Google Books’ search function usurps a right held by those authors to license indexing of their works.  This is ridiculous on its face, of course — imagine the effect such a right would have on libraries — but the judge does a nice job of explaining why it is so wrong.  The decisions rest heavily on the idea/expression dichotomy that is fundamental in copyright, and stresses that what is presented in the Google Books “snippet view” is more information about books (facts) rather than expressive content from those books.  A derivative work, Judge Leval suggests, is one that represents protected aspects — the expressive content — of the original in an altered form (such as a translation or a movie script).  A transformative use, on the other hand, uses information about the works, as in an index, or uses their content for a different expressive purpose, as in parody or scholarly comment.  This is a difficult distinction to make, as all of us who work in copyright know all too well, and it remains to be seen if the approach outlined above will hold up or prove useful in the full range of situations.  But it is a pointer toward a coherent way to understand a difficult part of the copyright balance.

As an aside, while reading the opinion in this case I was struck by how well the four fair use factors were handled, in a way that showed that the test used by Judge Leval respected all of the factors while essentially applying two basic questions — is the use transformative and does the new work create a market substitute for the original.  In fact, I can suggest three specific passages that are especially exciting, I think, for the application of fair use and the issue of transformation — footnote 21 and accompanying text, which helpfully clarifies the relationship of the second fair use factor to the analysis of transformation; the full paragraph on page 33, that considers the use and misuse of the third factor; and the careful distinction of Google snippets from a case involving telephone ringtones that is found on pages 40-41.  These are discussions that I think will have a significant impact on our ongoing consideration of fair use.

Finally, we should note that the Authors Guild has already indicated its intention to ask the Supreme Court to review this decision.  This is a very bad idea, indicating that the AG simply does not know when to cut its losses and stop wasting the money provided by its members.  The real point, however, is that the Supreme Court is not likely to take the case anyway.  This is not a situation where a fundamental Constitutional issues is involved, as it was in the Campbell case (fair use as a protection for free expression) nor one where a fundamental point about our obligations in the international arena was at issue, as it was in the Kirtsaeng case about the application of first sale to works of foreign manufacture.  In short, this is just a case about a greedy plaintiff who wants to be given an even bigger slice of the copyright pie, which the courts have determined repeatedly it does not deserve.  This is not the sort of issue that attracts the very limited attention of the Supreme Court.  In fact, reading the Court of Appeals’ ruling leaves one with a sense that many of the AG’s arguments were rather silly, and there is no reason to believe they would be less silly when presented to the Supreme Court in a petition for certiorari.

There are some who have argued that there is a split among the Circuit Courts of Appeal over transformative use, which is also a situation that can lead to Supreme Court review.  But that split has always been predicated on the idea that other courts, especially the Ninth Circuit, have carried the idea of transformation too far and departed from the ambit of the original doctrine.  The fact that it is Judge Leval, the author of that approach to fair use, who wrote this opinion, effectively undermines that claim.  In short, this decision closes a circle that outlines a capacious and flexible approach to fair use.  For getting us to this point, I suppose we should thank the Authors Guild for the unintentional support they have provided for a balanced copyright law in the digital age.

Photography, Fair Use and Free Speech

All of us take a bad picture now and then.  You know, one of those pictures of yourself that makes you cringe every time you see it.  Honestly, I don’t think I have liked a picture taken of me since 1995.  But most of us react mildly to a bad picture; we moan a little and move on.  Raanan Katz, however, takes more dramatic action.  Katz, who is a real estate developer and part-owner of the Miami Heat basketball team, has been trying to erase an unflattering picture of himself from the Internet for the past three years.  As is so often the case with this kind of legal action, it has had the ironic effect (often called “the Streisand Effect”) of drawing more attention to the photo than it would have received if ignored.  But it is Katz’s method of trying to make the picture go away that is the reason for this post; he bought the copyright in the picture and brought a lawsuit for infringement.

Those who want to know more about the history of this effort, and see the offending photograph, can read this short story from Forbes magazine.  But I want to focus on a couple of specifics in the holding, which upheld the lower court’s ruling that the use of the photography by the defendants was fair use. There are a couple of items in the Eleventh Circuit’s fair use analysis that are worth attention, as well as an interesting connection with the Georgia State copyright case.

The connection with Georgia State is mostly found in the fact that the opinion in Katz v. Google was written by Judge Tjoflat, who also wrote the appellate opinion in Cambridge University Press v. Georgia State.  The Judge seems to be getting more comfortable with the fair use analysis, although it is also arguable that this one was an easier case.  The GSU opinion actually makes a cameo appearance in the Katz ruling; there is a footnote in which Judge Tjoflat acknowledges Katz’s claim that the trial court failed to do the necessary case-by-case analysis of the challenged works, and cites to GSU for the proposition that such analysis is required.  The Judge dismisses this, however, by finding that the magistrate whose “Report and Recommendation” was adopted by the lower court, had taken account of each of the different uses that the defendants had made of the ugly photo.  He adds that “the district court was not required to write a prolix, unwieldy opinion with 25 separate sections devoted to each alleged instance of infringement.” (FN 3)  One can’t help but read that comment as an oblique reference to the massive decision that Tjoflat and his colleagues confronted in the GSU case; I wonder what Judge Evans, who presumably is preparing a similarly lengthy opinion on remand, might make of that comment?

More substantively, the Eleventh Circuit ruling in Katz raises an interesting point about copyright in photographs.  While discussing the second fair use factor, the nature of the original work, the court finds that the photograph in question is “primarily factual,” a finding that supports fair use, by helping to tip that one factor, out of four, in its favor.  The court explains this holding, while acknowledging that photography may require many creative decisions, this way, “The Photo, however, is merely a candid shot in a public setting, and there is no evidence in the record that Magriso, the photographer, attempted to convey ideas, emotions, or in any way influence Katz’s pose, expression, or clothing.” (p. 9).  This language seems, to me, to suggest that copyright is somewhat weaker, or at least more susceptible to fair use, in photographs that simply  attempt to record events that take place in public, as opposed to deliberately artistic photos.  I wonder how news organizations and photojournalists feel about this.  While it makes sense, I think, it also suggests a difficult line.  If copyright is less protective for such “merely” journalistic photos, is there a point where we should not grant copyright at all, as we don’t, for example, where a photograph merely “slavishly reproduc[es]” a two-dimensional public domain artwork.  The question of how much originality is enough in a photograph, which by its nature is often a record of “facts” such as the appearance of people or the external world, to meet the standard for copyright seems less easy here than it is, perhaps, for other media.  But perhaps the answer is that we will protect most photographs, while recognizing that there may be a lower bar for fair use because of this particular and peculiar nature of the art form.

The other point in this ruling that I found very interesting is the analysis of the fourth factor, where the court found that Katz’s purchase of the rights and registration with the Copyright Office, entirely for the purpose of suppressing the picture, was evidence that the challenged uses did not do any harm to a cognizable market.  In short, because the owner’s purpose was to prevent all use, fair use becomes more likely, since it shows there is no market, because no intent to ever license the work.  This logic casts some doubt on the argument often made by rights holders that they have a right not to allow the work to be used.  That is true, but it is still subject to fair uses, which by definition are not copyright infringement — they do not intrude on rights that the copyright owner actually holds.  While the reasoning seems a bit difficult here, for me it is the most important point in this decision; the market harm factor clearly plays its part in the “safety valve for free speech” function that courts often assign to the whole fair use analysis.  Simply put, fair use gets a boost whenever the issue before the court is this alleged right to suppress; copyright gives the rights holder a lot of power over a work, but it does not convey the right to entirely prevent protected speech, even when (especially when!) that speech is critical of,or distasteful to, the rights holder.

PS — this post was mostly written before I learned of yesterday’s ruling in the dispute over an alleged, and now quite doubtful, copyright in the song “Happy Birthday To You.”  That decision is much more widely covered than the one discussed above, and, because it turns on such unique and difficult-to-establish facts, seems to have less impact on daily copyright issues than the Katz case does.  So while I wanted to acknowledge the decision, and provide a link to the ruling for anyone interested who has not already seen it, I decided to stick with my original plan to discuss Katz today.

Ignore fair use at your peril!

One could be forgiven for thinking of the “Dancing Baby” case as a thing of the past.  It seems a long time ago that a district court affirmed that the music heard in the background (for only 29 seconds) of a video in which Stephanie Lenz’s baby is dancing — the music was Prince’s “Let’s Go Crazy” — was fair use, and told Universal Music that they were required to consider fair use before sending out take down notices under authority of the DMCA.  The video, after all, was posted in 2007.  Lenz sued Universal, arguing that, because they failed to consider even an obvious example of fair use before sending a take down notice for the video to YouTube, they had committed copyright misuse under section 512(f) of the Copyright Act by knowingly misrepresenting the legal situation in such a notice.

There was, in fact, an initial ruling that rejected some of Universal’s attempts to exonerate itself, back in 2010.  Then, in 2013, the judge rejected cross motions for summary judgment, essentially allowing the case to go forward on the misrepresentation claim.  Universal appealed this dismissal, and the Ninth Circuit Court of Appeals issued its decision today.  The Court of Appeals affirmed the lower court ruling, agreeing that the DMCA requires rights holders to consider fair use when sending take down notices and letting the suit go forward to determine if Universal was “willfully blind” to the clear fact that Ms. Lenz’s use was authorized by the law.

The thing about the decision that I really want to bring to readers’ attention is what it says about the nature of fair use.  About a year ago I wrote a blog post about the idea that fair use was an “affirmative defense.”  I pointed out that many positive rights, including free speech, would manifest themselves in court as affirmative defenses, meaning that they would be asserted by a defendant to answer a complaint, but that they were still positive rights — a space for freedom of action, not merely an excuse.  In its new ruling in Lenz, the Ninth Circuit makes this point abundantly clear, telling us that, “Fair use is not just excused by the law, it is wholly authorized by the law.” (p. 11 of the PDF)  In fact, the court is so clear and eloquent on this point that I want to quote a whole paragraph, which is found on page 13 of the PDF and which states the situation regarding fair use and affirmative defenses much better than I did:

Universal’s sole textual argument is that fair use is not “authorized by the law” because it is an affirmative defense that excuses otherwise infringing conduct. Universal’s interpretation is incorrect as it conflates two different concepts: an affirmative defense that is labeled as such due to the procedural posture of the case, and an affirmative defense that excuses impermissible conduct. Supreme Court precedent squarely supports the conclusion that fair use does not fall into the latter camp: “[A]nyone who . . . makes a fair use of the work is not an infringer of the copyright with respect to such use.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984).

Given that 17 U.S.C. § 107 expressly authorizes fair use, labeling it as an affirmative defense that excuses conduct is a misnomer.

So perhaps it is time to stop scaring people with this language about fair use as an affirmative defense.  As courts keep telling us, fair use is a positive right, an authorized and vital part of the copyright law in the U.S.  We cannot have one half of that law — exclusive rights for creators — without the other half, which is fair use and the other exceptions that protect productive uses.  Without the latter, copyright would be mere protectionism, and, in all likelihood, unconstitutional.

Can this gulf be bridged?

Litigants in court cases often disagree sharply about the law and its application to the facts, so it is probably not a surprise that the briefs filed in the District Court’s re-examination of its ruling in the Georgia State copyright infringement trial should see the issues in such starkly different terms.

If you read the publishers’ brief, the 11th Circuit decision that sent the case back to the District Court changed everything, and every one of those 70 excerpts found to be fair use at trial now must be labeled infringement.  This is absurd, of course, and I don’t actually believe that the publishers expect, or even hope, to win the point.  They want a new ruling that they can appeal.  In my opinion the publisher strategy has now shifted from an effort to “win” the case, as they understand what winning would mean, to a determination to keep it going, in order to profit from ongoing uncertainty in the academic community (and, possibly, to spend so much money that GSU is forced to give up).

On the other hand, the brief from Georgia State, filed last Friday, argues that all 70 of those challenged excerpts are still fair use.  It seems likely that the actual outcome will be somewhere in the middle, and, to be fair to them, GSU does recognize this, by making a concession the publishers never make.  For a number of excerpts where a digital license was shown to be available at the time of the trial, GSU argues that the available licenses were not “reasonable” because they force students to pay based on what they are getting access to, whether or not the specific excerpt is ever actually used.  This is an interesting argument, tracking a long-standing complaint in academic libraries.  If the court accepts it, it would dramatically restructure the licensing market.  But GSU also seems to recognize that this is a stretch, and ends several of its analyses of specific excerpts by saying that the specific use “should be found to be fair if the Court finds the licensing scheme unreasonable, and unfair if the Court finds the licensing scheme reasonable.”  So it seems GSU is prepared for what I believe is the most likely outcome of this reconsideration on remand — a split between fair uses and ones that are not fair that is different than the original finding — probably with some more instances of infringement — but still a “split decision.”

The availability of licenses is one of the interesting issues in these briefs.  The publisher plaintiffs now argue that licenses were available, back in 2009, for those excerpts where the judge said no licenses were “reasonably available.”  They are continuing to try to introduce new evidence to this effect; which is something GSU vigorously opposes.  But those of us who have been involved in e-reserves for a while remember clearly that such licenses were not available at all through the CCC from Cambridge University Press and only occasionally from Oxford.  So what is this new evidence (which the publishers’ brief says was not offered before because they were so surprised that it was being requested)?  It is an  affidavit from a VP at the CCC, and my best guess is that it would argue that licenses were “reasonably available” because it was possible, through the CCC system, to send a direct request to the publisher in those instances where standard licenses for digital excerpts were not offered.  GSU argues that the evidence gathering phase of the case is over, a ruling about licenses has been made and affirmed by the Court of Appeals, and the issue settled.  A lot will depend on how Judge Evans views this issue; so far she has ruled against admitting new evidence.

Another controversy, about which I wrote before, involves whose incentive is at stake.  The Court of Appeals wrote a lengthy discussion of the incentive for authors to write, and its importance for the fundamental purpose of copyright.  To this they appended an odd sentence that says they are “primarily concerned… with [publisher’s] incentive to publish.”  The publishers, of course, hang a lot of weigh on this phrase, and take it out of context to do so.  GSU, on their side, make a rather forced argument intended to limit the impact of the sentence.  Neither side can admit what I believe is the truth here: that that one sentence was inserted into an opinion where it does not fit because doing so was a condition of the dissenting judge for keeping his opinion as a “special concurrence” rather than the dissent it really was.  If I am right, this compromise served the publishers well, since they can now cite the phrase from the actual opinion of the Court; it is seldom useful to cite a dissent, after all.  So the publishers quote this phrase repeatedly and use it to argue that all of the factors really collapse into the fourth factor, and that any impact at all, no matter how small, on their markets or potential markets effectively eliminates fair use.  Authors, and the reasons that academic authors write books and articles, do not appear in the publishers’ analysis, as, indeed, they could not if the argument for publisher hegemony over scholarship is to be maintained.

GSU, as we have already seen, takes a more balanced approach.  For the first factor, they discount the publishers’ attempt to make “market substitution” a touchstone even at that point in the analysis, and focus instead on the 11th Circuit’s affirmation that non-profit educational use favors fair use even when transformation is not found.  The GSU brief fleshes this out nicely by discussing the purpose of copyright in relationship to scholarship and teaching.  On the second factor, GSU discusses author incentives directly, which in my opinion is the core of the second factor, even though courts seldom recognize this.  GSU also points out that the publishers have ignored the 11th Circuit’s instruction, both here and in the third factor analysis, to apply a case-by-case inquiry to those factors; instead, the publishers assert that since every book contains some authorial opinion, the second factor always disfavors fair use, and that no amount is small enough to overcome the possibility of “market substitution.”  For their part, GSU introduces, albeit briefly, a discussion of the content of each excerpt (they are often surveys or summaries of research) for the discussion of factor two, and of the reason the specific amount was assigned, in regard to factor three.

As I said, these differences in approach lead to wildly different conclusions.  Consider these paragraphs by which each side sums up its fair use analysis for each of the excerpts at issue:

The publishers end nearly every discussion of a specific passage with these words — “On remand, the Court should find no fair use as to this work because: (1) factor one favors fair use only slightly given the nontransformativeness of the use; (2) factor two favors Plaintiffs, given the evaluative/analytical nature of the material copied; (3) factor three favors Plaintiffs because even assuming narrow tailoring to Professor _____________’s pedagogical purpose, it is counterbalanced by the threat of market substitution, especially in light of the repeated use; and (4) factor four “strongly favors Plaintiffs,” and is entitled to “relatively great weight,” which tips the balance as to this work decidedly against fair use. ”

On the other side, GSU closes many discussions (although there is more diversity in their analysis and their summations than in the publishers’) this way — “Given the teaching purpose of the use, the nature of the work and the decidedly small amount used, the fact that this use did not supplant sales of the work, and the lack of digital licensing, the use of this narrowly tailored excerpt constituted fair use.”

These are starkly contrasting visions of what is happening with these excerpts and with electronic reserves, as practiced at a great many universities, as a whole.  It will be interesting, to say the least, to see how Judge Evans decides between such divergent views.

Learning how fair use works

How many cases about fair use have been decided in the U.S. since the doctrine was first applied by Justice Story in 1841?  Take a minute to count; I’ll wait.

If you came up with at least 170, the Copyright Office agrees with you.  Last week they announced a fascinating new tool on the CO website, an index of fair use cases.  That index contains summaries of approximately 170 cases, along with a search tool.  The introductory message, however, acknowledges that the index is not complete, so those of you who thought there were more than 170 cases are almost certainly correct.

This index is potentially a very useful tool, and it also raises some interesting questions.  I want to consider the questions first, than discuss how the new fair use index might be used by someone who wanted to learn more about how fair use works (which, by the way, is one of the avowed purposes behind its development).

Coverage is the obvious first question, and, as I said, the CO acknowledges that it is incomplete.  Specifically, it seems heavily weighted toward more recent cases.  There are only 11 cases listed in the index dating to before 1978, and two older cases (1940 and 1968) that are presented in my law school casebook on copyright as important fair use precedents are not included.  So it looks like there are some pretty significant gaps, which one hopes the Copyright Office will address as it continues to develop this tool.

By the way, the issue of continuing development also brings up the question of why the C.O. thought this was a worthwhile investment. It looks useful, to be sure, but there are other sources for similar data, so it is a bit curious that the C.O. chose this among all its potential priorities.

To return to the issue of coverage, it is always important to ask which specific cases were chosen and how they are characterized.  Of the 170 cases, there are 78 for which the result is listed as “Fair use not found,” and 64 in which the C.O. says that fair use was found.  The remaining 29 are listed as “Preliminary ruling, mixed result or remand.”  This last category is rather unhelpful.  For example, the Authors Guild v. HathiTrust case is listed this way, even though it was a strong affirmation of fair use and the remand involved a fairly unimportant issue of standing.  Even more surprising is the fact that this “mixed result” tag is applied to Campbell v. Acuff Rose Music, the “Oh Pretty Women” case from the Supreme Court that is at the heart of modern fair use jurisprudence.  Again, this was a clear fair use win; the case was remanded only because that is what the Supreme Court usually does when it reverses a Court of Appeals’ decision.  So the representation of the holdings is technically accurate, it seems, but not as helpful as it might be in actually focusing on the fair use aspect; while some “mixed result” case genuinely were that — fair use was found on one issue but not for another — many of the remanded cases actually did involve a clear yea or nay about fair use, and it would be more helpful to categorize them that way.

A particularly useful feature of this index is the ability to limit the listings by jurisdiction (the Appellate Circuits) and by topic.  For example, limited to just cases out of the Fourth Circuit, where I reside, I find that the Court has ruled on seven fair uses case and upheld fair use in six of them.  The seventh was one of those genuinely mixed results, where one challenged use was held to be fair and another was not.

If we limit the subject area of the cases to those labeled “Education/Scholarship/Research,” fair use seems to fare better than it does overall.  In that category of 42 total cases there are 18 findings in favor of fair use and 16 rejections.  Of the remaining 8 mixed results, at least two of them — the HathiTrust Case and the GSU case — should be seen as affirmations of fair use, even if the parameters of that use are still unsettled in GSU.  So the impression many of us have that educational and scholarly uses are a bit more favored in the fair use analysis than other types of cases seems to be confirmed.

Things get more interesting when we look just at the Supreme Court in this index, and the issue of how cases are chosen is again highlighted.  The index shows four fair use cases, with one holding in favor of fair use (Sony v. Universal Pictures), one mixed result (Campbell, as discussed above), and two rejections of fair use (Harper v. Nation and Stewart v. Abend).  This last case, Stewart v. Abend, is actually almost never treated as a fair use case; while fair use was dismissed as a potential defense in the case, the real issue involved assignments of copyright and who could exercise the renewal right that existed at that time.  And this case was remanded, just as Campbell was.  So it is odd that Campbell, with its central finding in favor of fair use, is shown as a mixed result, while Stewart v. Abend, where fair use was tangential and there was also a remand, is tagged as a rejection of fair use.  This suggests at least an unconscious bias against fair use findings.

A different listing of Supreme Court fair use cases, on the IP Watchdog site, includes several additional cases — nine, in all — but does not list Stewart v. Abend as one of them. Several of the cases included by IP Watchdog do not seem to me to really focus on fair use, so I am not saying that the C.O. has under-reported the cases.  But the very different lists do suggest that it is a surprisingly subjective undertaking just to identify the cases that should be included in a fair use index.

Finally, the analysis provided in the C.O.’s case summaries needs to be considered carefully.  To take one example, for the recent case of Kienitz v. Scoonie Nation, about which I wrote earlier this year, the short note about the holding ignores the thing that may be most significant about the case — the reluctance of Judge Frank Easterbrook to apply a “transformation” analysis to the fair use question (HT to my friend and colleague David Hansen for pointing this out).  Again, this is not necessarily a problem, and the case summary of Kienitz at the Stanford Copyright & Fair Use site has a similar synopsis, but it is a reminder that these projects are always created by individuals with specific perspectives, viewpoints and limitations.

Even with all these caveats, I think the Copyright Office has created a useful tool, which can be used by those interested to learn a lot about how fair use is applied, especially by looking at the different categories.  The Stanford site, linked above, and especially its own, much shorter list of cases, might usefully be used alongside the C.O. index.  The Stanford descriptions are  very tightly focused on the fair use issue, so reading them in conjunction with the C.O. summaries, with their attention to procedural matters that sometimes obscure the fair use holding, might produce a more balanced approach.

In any case, this new tool form the Copyright Office, and some of the tools that predate it, remind us that the best way to understand fair use, and to become comfortable with it, is too look closely at the cases, both in the aggregate and individually.  This C.O. database offers a statistical perspective, as well as the ability to focus on parody, or music, or format-shifting, while the Stanford summaries emphasize in a few words the core of the fair use analysis.  Both point the interested reader to full opinions, where the analysis can be understood in the context of all the facts.  Combined in this way, these resources offer a terrific opportunity for librarians, authors, and others to dig deeply into the nuances of fair use.

Steps toward a new GSU ruling

It looks more and more like we will get a new ruling from the trial court in the Georgia State case about what is or is not fair use for digital course readings.  The case, of course, was reversed and remanded to the trial court after the publishers appealed the initial decision to the 11th Circuit, with instructions to produce a new opinion consistent with the Court of Appeals ruling.    The publisher plaintiffs then asked the trial court to reopen the record in the case and apply the putative new fair use analysis to a different, more recent, set of readings employed by the GSU faculty.  The University opposed this motion, arguing that what would amount to a whole new trial was not necessary.

Last week, District Court Judge Orinda Evans dismissed the motion to reopen the record and issued an order about briefing the court on what a new analysis of fair use for the original excerpts considered in the trial should look like.  Judge Evans wrote that “It does not make sense at this juncture to spend months, probably longer, on what considerations might govern if Plaintiffs prove they are entitled to injunctive relief by virtue of the claimed 2009 infringements.”  The motion is dismissed without prejudice, meaning that the plaintiffs can renew it at a more appropriate time, although I must admit that I do not see what that would mean if the case is to go forward on the original set of readings.

It appears that once again the publishers have failed in an effort to broaden the scope of the case beyond the item-by-item fair use analysis that has already been done and to possibly reintroduce some of the broad principles that they really want, which have so far been rejected at every stage.  Now Judge Evans has explicitly told them, in her scheduling order, that what is required is “consideration and reevaluation of each of the individual claims” in order to redetermine “in each instance… whether defendants’ use was a fair use under 17 U.S.C.  section 107.”  Her schedule for the briefs is tight, with an end of the briefing now scheduled just two and a half months from now.  Presumably we would still have a long wait while Judge Evans applies revised reasoning about fair use to each of the individual excerpts, but it looks a bit more like that is what is going to happen.

In the GSU case, the wheels keep turning

NB — An embarrassing correction — the motion discussed below was actually filed by the plaintiffs, the publishers, not by GSU.  So this does look very much like the publisher intent is to go forward with new proceedings in the District Court.  And speculation below about what GSU intends is misplaced.  Sorry, folks.

Spurred by this error, I have uploaded the motion, so interested readers can see it here

Before I get way down in the weeds to describe a new development in the GSU case, I want to tell readers about a wonderful new article about the case, still in draft form here on SSRN, by Brandon Butler, lately of the ARL and now at the George Washington College of Law at American University.  This is a clear and concise summary of where we are regarding educational fair use after the Court of Appeals ruling that reversed and remanded the GSU case.  It also is as good a set of “instructions” as I have seen for how we can move forward with fair use in the academy; I hope many of you will read it.

And, now, for those who enjoy the more arcane aspects of our law, the latest on that very case.

When last we heard from the Georgia State University copyright infringement lawsuit, the publishers were facing a decision — should they appeal to the Supreme Court, try to settle the case, or let the case go back to the trial court for further proceeding in light of the Court of Appeals ruling?

I have no insight into what is going on in the minds of the plaintiff publishers, or those who are instructing them; all I can say is that I don’t think they have yet filed with the Supreme Court for a Writ of Certiorari.  But because of a filing made in the District Court last week, we do now know something about what GSU is thinking, and it seems they are preparing for reconsideration of the case by Judge Orinda Evans.

On February 24, right in the middle of Fair Use Week, GSU filed a motion in Judge Evans’ court to “reopen the record on remand.”  When a case is appealed, the trial court “certifies” the record and sends it up to the court that will hear the appeal; that is, the lower court attests that the materials sent to the Appellate level are complete and accurate.  Now the case has been sent back to that trial court, and GSU wants to reopen the record — the documentary evidence in the case — so that Judge Evans would base any new opinion on the most up-to-date evidence.

At the root of this request is the fundamental fact in this case that Georgia State, as a state university, cannot be sued for money damages because of sovereign immunity.  In other words, they cannot be assessed a fine by the Federal courts for past actions. Early in our nation’s history, we decided that we did not want to give the Federal courts that kind of power to reach into state treasuries and redistribute taxpayer money.  So all that a plaintiff suing a state university can hope for is an injunction — a form of order from the court that tells the defendant to stop doing something in the future.  There is no looking back at past wrongs when sovereign immunity is in play; only the potential for future violations of the law can be addressed.  This is an exception to sovereign immunity from a Supreme Court case called Ex Parte Young, and it is supposed to be followed quite strictly.

Those paying close attention may recall that this single-minded focus on the future came into play earlier in the GSU case, when the Regents of the University of Georgia system adopted a new copyright policy.  At that time, GSU successfully argued that only actions taken after the new policy was adopted should be considered by the court, since any injunction could only address future actions, which would be governed by the new policy.  The trial court agreed, and the case was tried over specific excerpts from books published by the plaintiffs that were used in the GSU e-reserve system after the new policy was adopted.

Since the trial, however, the GSU policy has changed again. Specifically, the Regents acted to incorporate into that policy the instructions given them by Judge Evans, who found a couple of flaws in the original form of the new policy.  So once again, GSU is asking that they be judged only on the current state of practice, which is the appropriate context for an injunction (which always looks forward).  They are asking that the record be reopened so that, in her reconsideration of the case, Judge Evans would evaluate only excerpts used in GSU’s e-reserves since the original trial and the subsequent amendment of the copyright policy.

If this motion is granted, and it makes sense both under the legal rule of Ex Parte Young and the past history of the case, the publishers would have to look at more recent semesters than were the subject of the original trial, and see what excerpts, if any, from works they own were used for e-reserve after the 2012 ruling.  If they find any that they think are infringing, it would be those materials, rather than the “original” 75 excerpts, that would be the subject of Judge Evans’ reconsideration.

In short, GSU is asking that those “further proceedings consistent” with the Court of Appeals ruling, be focused on a new set of excerpts, ones used by the GSU faculty since the copyright policy was last revised.

If the motion is granted, the new proceedings in the trial court would have a very different look.  There would not necessarily be a new trial, but at least the Judge would have to reconsider her approach to fair use based on what the Court of Appeals has told her, and then apply that revised approach to a different set of readings.  It seems clear that GSU believes that this would improve the chance that she would still find lots of fair uses.  Perhaps they are more confident that the revised policy is being followed and, since it was revised based on the Judge’s instructions, it will still pass muster with her.  Perhaps GSU has been careful not to use many, or any, of plaintiffs’ works since the trial.  And, perhaps, this is a gambit in settlement negotiations.

I will be anxious to see how the Judge responds to this motion, if the case reaches the point for her to rule on it.  I suspect that the publishers will see this request as a kind of trickery, designed to pull the rug out from under them and fight the case on new terrain.  But they knew the boundaries when they sued a state institution, or at least they should have.  From another perspective, this motion reflects an attempt by GSU to be consistent, and even to act with integrity.  If they believe, as I think they do, that they have tried at every turn to employ fair use as it has been clarified for them by the courts, this is nothing more than a plea to be judged on their current understanding and current practice, which seems very fair and appropriate.




After another defeat, what will GSU publishers do in 2015?

Back in October the 11th Circuit Court of Appeals issued its ruling in the Georgia State copyright infringement suit brought by three publishers and the Copyright Clearance Center to try to end reliance on fair use for course readings that are digitized and made available to students in a closed online forum.  As has been widely reported, that decision looked like a win for publishers, in that it vacated the lower court decision that largely favored Georgia State University, and it remanded the case back to the District Court for further proceedings.   But what looked like a win was very dissatisfying to the publisher plaintiffs — Cambridge University Press, Oxford University Press and Sage Publishing.  In the course of the opinion, all of the radical changes to copyright law that they hoped to advance with the lawsuit — the imposition of the 1976 Classroom Copying guidelines as a maximum limit rather than a safe harbor, the idea that the copy shop cases involving commercial course packs were appropriate precedents for in-house electronic reserves, a move from analysis of individual claims of fair use to a comprehensive impact analysis, and a statement that non-profit educational use did not necessarily favor fair use — were rejected by the Court of Appeals.

The publishers were very unhappy with this decision, even though it gave them the outcome they desired in the specific conflict.  They are looking for a radical realignment of fair use; the actual case is relatively unimportant, I think, compared to this desire to change the landscape so that many more licenses for educational institutions would be required.  So they asked the entire 11th Circuit to rehear the case (en banc) instead of letting the decision of the usual three judge panel stand.  Their petition for rehearing is a wish list of the principles they would like to have govern copyright in academia, which, of course, all point to paying those publishers more money.

On Friday the 11th Circuit rejected this petition for an en banc rehearing, as well as the petition for rehearing filed by GSU.  The Court did not comment on the rejection; they simply denied both petitions, thus leaving the opinion of the Appellate panel as the Court’s final word on the case.

For libraries, this means we are still in the uncertain and murky position I describe back in October.

For the publishers, there are a dwindling number of options left for them:

  1. They can petition the Supreme Court to hear the case.  This is really the only option that is available if the plaintiff publishers still want to fight for the ridiculous arguments they have been championing throughout the six and a half years of this lawsuit, so I will not be surprised if they do this.  I am sure the lawyers representing the publishers are advocating for this; so is the Copyright Clearance Center, in all likelihood, and they are paying the bills.  But the Supreme Court accepts only a tiny fraction of the cases they are asked to consider — the number is less than 4% of cases for which the petitioner has paid the usual filing fees (it is much lower for cases submitted where the plaintiff, usually a prisoner, claims that they cannot pay the costs).  The cases the Supreme Court is most likely to accept are those where there is a split of opinions among the different Circuits of the Court of Appeals, and that is not the case with the GSU opinion.  So this is a long shot for the publishers, but their only option now if they hope to save any of those principles that they have gone to war to establish.
  2. They can seek the rehearing by the District Court that is the point of a remand from the Appeals Court. That hearing must be “consistent” with the analysis in the 11th Circuit ruling, so it is not likely to gain much for the publishers.  The best they can hope for here would be a slightly tighter e-reserves policy at GSU that they could wave under the noses of other universities.  But that would be a victory for them that would feel an awful lot like a loss.
  3. Finally, they could settle the case.  This would be the rational approach, but the plaintiff publishers (or those who are calling the shots for them) have shown little taste for reasonableness.  They have poured a lot of money into fighting to undermine fair use for education, and settling now is probably less sensible, from their perspective, than it would have been months or years ago.  And, to be honest, GSU has little to gain from a settlement at this point; they might just as well wait for further proceedings in the District Court.  A settlement earlier in the case might have given the publishers a lever to use in negotiations with other institutions, but that opportunity faded when the 11th Circuit rejected all of those principles that the publishers were after.  Now they have a much weaker hand.

Overall, I think we will see a petition for a Writ of Certiorari, which is what you file to ask the Supreme Court to consider your case.  I doubt it will be granted, but I expect that 2015 will be a year of tilting at windmills for the publishers in this case.

Does copyright provide shade against Sunshine laws?

There are many situations in which the application of fair use is vitally important.  Educational uses are paramount, of course, and the law of fair use was clearly written with them in mind.  But right up at the top of the list, along with education, should be protecting free speech and supporting governmental transparency. This last value, however, has been put in some doubt by a decision back in August by the Missouri Court of Appeals.  The question, which has arisen in several recent court cases, is whether copyright can be used by a state university to avoid releasing materials that have been requested under the state’s freedom of information, or “Sunshine” laws as they are often called.  The laws are intended to shine light on the workings of government, and these situations where copyright is asserted to prevent the release of records threaten a novel method by which government agencies can avoid public scrutiny.

The cases have been brought by an organization called the National Council on Teacher Quality, or NCTQ, which advocates for tougher evaluation standards for teachers and is sharply critical of many teacher education programs.  The NCTQ has sent requests under numerous state Sunshine laws asking for the syllabi used in various teacher education courses at state universities, and that is where the copyright cases have arisen.  In at least two states the university and/or a teachers union has sought to prevent the release of the requested syllabi by asserting that such documents are the copyrighted property of individual faculty members and that the Sunshine laws do not permit the state to release material when doing so might infringe copyright.

I am coming at this issue slightly backwards, because I was alerted to it by a report in the Chronicle of Higher Education  when, earlier this month, the Missouri Supreme Court upheld a decision refusing to release the syllabi because they were protected by copyright.  That decision, handed down in August by the Missouri Court of Appeals, was something of a shock to me; the reasoning is so bizarre and it seems to try so hard to misconstrue the arguments made by the NCTQ that I can only conclude it is result-driven.  That is, the court decided what it wanted to do and then contorted the law to achieve that outcome.  I want to walk through some of the oddities of this decision, then look briefly at a case from Minnesota, decided a year earlier, in August 2013, and pointed out to the Missouri court, that got the situation right, in my opinion, recognizing that fair use can prevent state entities from using copyright to shield themselves from sunshine laws.

Those other cases provide the first illustration of the oddity of the Missouri decision.  The Court of Appeals was presented with several previous cases from other states where copyright was held not to prevent release of materials that were otherwise subject to Sunshine laws.  But the Missouri panel declined to acknowledge those precedents — they were not obligated to do so, to be sure — by arguing that those rulings had never found that copyright “had no application” in such cases.  But that is not what the NCTQ had argued; they offered the precedents to show that copyright had not, in the past, been permitted to shield the government from disclosure.  The Missouri Court of Appeals misconstrued the point and then, based on this misunderstanding, dismissed the cases and did exactly what it had been warned against — turned copyright into a defense against open government.

Later on in the decision there is another instance where the court again appears to willful misunderstand the NCTQ’s arguments in order to get to its desired goal.  When the NCTQl argues that syllabi are widely distributed already, the Court of Appeals claims that this is an argument based on privacy concerns and, as such, inapplicable to a case about copyright.  But it is clear that the NCTQ is arguing a copyright point related to the “market” for syllabi and the potential for harm (minimal) that would result from handing them over for NCTQ research purposes.  In short, this is part of a fair use argument, to which I will return below.

But first we should note one more oddity in the Missouri case, which is not the fault of the Court — the fact that the copyright ownership of the syllabi was never disputed.  Apparently both sides conceded that the faculty members were the copyright holders.  It might have been a better strategy for the NCTQ to raise the issue of work made for hire here and try to claim that the University, an arm of the state, was the copyright holder and therefore not entitled to use its own copyright to impede disclosure under the law.  Apparently the mutual concession on this point was based on the policy at the University of Missouri which said that faculty held their own copyrights, but this policy could easily be challenged (as most such university policies could) on the grounds that they do not meet the standard of “a written instrument signed by [the parties],” which is what the copyright law requires to return a work made for hire to individual ownership.

So here we have a situation where syllabi are widely distributed but, when requested by a private organization with an undeniably political agenda, are held to be the copyrighted property of individual faculty members and therefore excluded from Sunshine law disclosure because they are “protected from disclosure by law.”  This is clearly a ruling that effectively destroys the Sunshine law in Missouri, since most everything requested under it will be the copyright-protected property of someone.  Maybe in a later ruling the courts could make it clear that copyrights held by the state itself do not justify withholding materials from disclosure, but this case does not say that.  And even if that is the state of the law in Missouri, this ruling provides a huge loophole in the Sunshine law that clever agencies will surely find multiple ways to exploit. Such a situation cries out for a comprehensive fair use analysis, and yet the Missouri Court of Appeals declines to undertake one.

Three reasons are advanced by the Court to explain why fair use is unavailing to protect the Sunshine Law from being gutted by copyright claims; all are unavailing, in my opinion:

  1.  First, the Court of Appeals claims that, as a state court, it “lacks authority” to consider the effect of the Federal copyright.  This is clearly nonsense.  State courts regularly consider questions of Federal law when necessary to resolve an underlying state law issue.  The Minnesota case that was pointed out to the Court of Appeals is exactly such an example, which the Missouri panel chose to ignore.  It should be obvious that when the Sunshine exception refers to prohibitions by law, that necessarily means that the state courts will have to deal with Federal laws, and, in fact, the state court here does consider the impact of Federal copyright law.  It just draws up short at the idea of considering fair use.
  2. The Missouri Court of Appeals also asserts that it cannot consider fair use because there is no case of actual infringement before it, and fair use is an affirmative defense that is raised only after a prima facie case has been presented.  This is a silly excuse in the context.  For one thing, the law clearly tells us that fair use is a right, which, like most rights, functions as an affirmative defense in many situations.  But even more fundamentally, the Court of Appeals is agreeing to the claim that the University of Missouri does not have to disclose syllabi because doing so would involve it in potential copyright infringement; how is it possible to then decline to consider the applicability of a potential defense to copyright infringement as part of its analysis?
  3. The Missouri Court of Appeals gets involved in a convoluted consideration of who would be able to assert fair use in this situation, and appears to throw up its hands in despair.  On the one hand, the Court asserts that it cannot consider fair use because it does not know what the use is that NCTQ will make of the syllabi that might be turned over to it.  But, on the other hand, the Court accepts the University’s argument that it is not trying to enforce faculty member’s copyright — which it would not have standing to do — but is merely protecting itself from committing infringement.  So why is fair use not applicable to the University’s use, an argument the Court rejects without much clear reasoning?

The Missouri decision is, in my opinion, one of the worst considered decisions I have ever seen; a colleague told me that even after being warned about it, it caused her to gasp in surprise and, I suspect, horror.  The ruling is made that much worse because the Court had before it an example of how the situation should have been handled, in the case of NCTQ v. Minnesota State Colleges and Universities, which was decided a year earlier and which got all of the issues raised above right where Missouri struggled to find a way to get them wrong.  There is a report on the Minnesota case available here.  Quite simply, the Minnesota Court of Appeals found that it could, and indeed must, consider fair use when faced with exactly the situation that the Missouri court got so wrong.  In Minnesota they decided that fair use clearly applied to allow a state institution to make and distribute the  the copies needed to comply with the Sunshine law.  It further held that the University could not resist compliance with the State’s open-records law based on a speculative future infringement that might occur when the materials were in the hands of the NCTQ.  In short, Minnesota decline to make copyright into an expansive shield that undermines the key values expressed in open records laws, which is exactly what Missouri did allow.

Fair use exists to prevent the copyright monopoly from undermining key democratic values.  It supports education and free speech precisely because these are key components of a democratic system.  So is transparency in government, and the deeply unfortunate decision made by the Missouri Court of Appeals allows copyright to defeat the intent of the Missouri Sunshine law precisely because it does not recognize that this is a key place where fair use should do its important work.

Going all in on GSU

On Friday the publishers who are suing Georgia State University for allegedly infringing copyright by scanning short excerpts from academic books to provide students with access through electronic reserves and learning management systems filed a petition for a rehearing by the entire Eleventh Circuit Court of Appeals.  As most will recall, the panel of the Eleventh Circuit essentially did what the publishers wanted — reversal of the lower court judgment — but the appeals panel denied those plaintiffs most of the principles by which they hope to radically reshape copyright law.  The publishers clearly understand that, whatever they can gain from additional lower court proceedings on remand, they will not get what they wanted when they brought the lawsuit.  The panel ruled that the first fair use factor favors an educational, non-profit use even if the use is not transformative, that an item-by-item analysis is appropriate, and that it matters in the fair use analysis whether or not a license for digital excerpts is available.  The publishers have decided they cannot live with these conclusions, so they have asked that those specific issues be reconsidered by the entire Eleventh Circuit court.  Their “petition for en banc rehearing” lays out their arguments.

GSU also has filed a petition for rehearing.  They are seeking some corrections to inaccurate statements about what list of alleged infringements was considered by the lower court, as well as a ruling that the risk of market harm from electronic reserves is a question of fact that the lower court should be instructed to consider.  That risk, GSU argues, should be proved; it is not something the appeals panel should have presumed.

It is important to understand there is little chance that these petitions will be granted.  When a case is appealed from the lower court to a Circuit Court of Appeals, we call that an “appeal as of right.”  That is, that first appeal must be heard by an appellate panel.  But thereafter, all subsequent appeals are discretionary; the court does not have to actually take the case, it has the option to deny the petition.  Most people are familiar with the idea that the Supreme Court actually reviews only a tiny percentage of the cases for which it receives a petition for a hearing.  Besides asking for Supreme Court review, the other option, after losing (or feeling like you lost) an appeal in front of a Circuit panel, is to ask that the entire group of judges in that Circuit reconsider the case.  Like Supreme Court petitions, these petitions for en banc rehearing are rarely granted.  In fact, the Federal Rules of Civil Procedure explicitly say that petitions for rehearing are “not favored and ordinarily will not be granted”  (FRCP 35(a)).  For more information about these post-appeal options, interested readers should see this article from the law firm Reed Smith.

So does the petition from the publishers stand a chance?  There are two reasons a petition for rehearing might be granted: when there is a split within the courts of the Circuit or when a “question of extraordinary importance” is involved.  In their petition, the publishers rely on the latter claim, but it is not very convincing.  They try to drum up controversy by suggesting that the panel ruling contradicts some Supreme Court precedents, but, again, the effort is weak.  The petition relies on the 1980’s decision in Harper and Row v. Nation Magazine, which the Supremes themselves have seriously modified in later rulings.  So when the publishers object that the panel ignored Harper‘s emphasis on the importance of the fourth factor, they are deliberately ignoring language from the later Campbell v. Acuff-Rose case.

The other source that the publisher petition puts a lot of weight on is the “special concurrence” by Judge Roger Vinson.  Essentially, Judge Vinson dissented on every major point in the majority opinion, but concurred in the result.  Taken together, the two opinions indicate that a lot of negotiation took place in the 11 months it took to produce the ruling.  It suggests, in fact, that the other two panel judges — Tjoflat and Marcus — were actually more sympathetic to fair use than is expressed in the majority opinion.  But what is important about the heavy reliance on Judge Vinson in the petition for rehearing is the fact that Judge Vinson is not a regular member of the Eleventh Circuit.  He is a senior judge at the District Court level (in Florida) who was on the Appeals Court panel to fill a vacant seat (called “sitting by designation”).  That means that he presumably will have no role in deciding whether or not to grant the petition, or in any actual rehearing, in the unlikely event the petition is granted.  So the publishers have found a friend in Judge Vinson, but he is not a friend who can help them all that much.

This petition for rehearing is thus a long shot, and it reveals the stark opposition of these three publishers to fair use as it has traditionally been interpreted throughout the long history of U.S. copyright law.  Let’s look at the three principles the publishers say that they want and that the appeals panel got wrong.

The first point from the panel decision that the publishers say is wrong involves the idea of “media-neutrality.”  This is a huge red-herring that the publishes have been waving around to distract the various courts from the weakness of their case, and they lead off with it in the rehearing petition. Judge Vinson was convinced by this argument that if courts do not treat electronic reserves the same way print course packs were treated in the “copyshop” cases from the 1990s, they are violating a principle of media-neutrality.  The majority opinion, on the other hand, tried to define the limited role that media neutrality has in copyright law, a definition the new petition claims was an error.  There are a couple of important points that are getting overlooked in this discussion.

For one thing, there are many ways in which copyright is not media neutral.  Many exceptions, for example, refer to specific media and specific technologies.  There is a provision just related to royalties on digital audio recording machines, for example.  The TEACH Act refers to transmission over a digital network, and is inapplicable to other types of distance learning.  Broadcast television is treated differently than cable, and terrestrial radio differently than Internet radio.  Since the law is therefore often media-specific, it was not irrational for the panel majority to try to define what media neutrality does, and does not, mean.  The publishers want it to mean something very specific in order to benefit their case, but the panel looked at a principle-based definition that took account of how the copyright law as a whole really works, and rejected the publishers’ ad hoc claim.

The reason for pushing this broad and self-serving definition of media-neutrality, of course, is to convince courts that the “course pack” cases are good analogies for electronic reserves.  Since those cases found against fair use, the publishers’ argument goes, the principle of media neutrality demands that fair use also be rejected for electronic reserves.  But, in fact, neither the lower court nor the appellate panel has rejected the course pack cases because of a perceived difference between electronic and print fair use.  This is just sand being thrown in the face of the courts to confuse them (it worked with Judge Vinson).  The course pack cases are distinguishable instead on first factor grounds that have nothing to do with the media involved; those cases involved a commercial intermediary making and selling the course packs, which is an entirely different situation than is reflected in the GSU case.

The second claim the publishers make in their petition attempts to undermine the first fair use factor more directly by asserting that it should not favor non-profit educational uses unless they are transformative.  Although the publishers assert that this is the meaning of the Supreme Court’s ruling in Campbell v. Acuff-Rose Music, that is simply not true.  Although that case laid great weight on transformation for many fair use decisions, it explicitly stated that not all fair use must be transformative, and cited “multiple copies for classroom use” as the paradigmatic case of a non-transformative use that is likely still fair.  They get this phrase directly from section 107, of course.  So the publishers are asking for a pretty radical reconfiguration of the copyright law here, that would directly defy the Supreme Court and the text of the law.  It would be pretty audacious of the Eleventh Circuit to accept this argument, but the publishers are clearly going all in with their fight against fair use.  It seems they are reasoning that if they can persuade the Eleventh Circuit into accepting this radical new view of copyright, they could at least get a shot at Supreme Court review by provoking a split in the circuits where none has previously existed.

Finally, the most troubling claim the publishers make is in their argument that the fourth fair use factor’s emphasis on market harm, including “potential” markets, gives them the right to decline to offer a license for digital excerpts without tipping the fourth factor toward favoring fair use.  The appellate panel correctly noted that this argument would demolish fair use, since it would allow a rights holder to say “we could have licensed this use if we wanted to, so allowing fair use damages the potential market we have chosen not to enter.”

In one sense, I would like to see a discussion of this idea of potential markets.  It should be seen as a gateway to consider the incentive purpose of copyright law.  How would it create additional incentive for creation to permit publishers to refuse to license uses of academic works?  These markets are not an end in themselves, but a vehicle to produce such incentives.  Establishing a right to refuse to license does not serve this purpose at all.  It is a selfish and antisocial argument put forward by the publishers to protect the artificial scarcity that they believe they must create in order to make money.  In short, the publishers want the right to limit access to knowledge because they do not have the vision needed to run successful businesses in a changing environment.

What do we lose if that argument is accepted?  Only our most cherished democratic value, the freedom of expression.  Fair use has always been considered a “safety valve” for free expression that prevents a rights holder from suppressing speech he or she doesn’t like by asserting copyright.  If we were to accept this potential market argument, a rights holder would be a step closer to preventing scholarly commentary by denying a license for the quotations used in, for example, a review (as Stephen James Joyce famously tried to do regarding his grandfather’s work).  That might seem extremely unlikely on a larger scale, but we should remember that publishers often require their authors to obtain permission for the use of quotations beyond an artificially imposed word limit.  Combined with this idea that denial of a license should not improve the fair use argument, the conditions for such suppression would be ideal.

The truly shocking thing about this petition is how openly Oxford University Press, Cambridge University Press and Sage Publishing are now attacking free speech and the dissemination of knowledge.  These are not “academic” presses anymore; their profit motive and shorted-sighted focus on protecting old business models has led them to assume an anti-academic stance that the scholarly community should not tolerate.  They are demanding nothing less than a right to suppress and inhibit the spread of knowledge, simply by refusing to offer a license, whenever the believe that doing so is to their commercial advantage.  I have often been asked if I think scholars, libraries, and others should boycott these publishers because of the lawsuit, and I have always said that we should wait and see where the cases goes.  To me, it has now gone in an intolerable direction, one that threatens core principles of academic discourse.  Everyone must make their own decision, of course, but I am now willing to say that I will neither publish with these three plaintiff publishers nor buy their products.  They have declared war on teaching and the dissemination of scholarship, and I will not help them buy the ammunition.