Category Archives: Fair Use

Fair use is for students, and artists, and researchers, and …

Last Fair Use Week post!  Today I want to highlight, via a short video, a student project here at Duke that demonstrates really well the kinds of common transformative uses that fair use supports on campus. “Transformative use” has become a major part of the fair use analysis, starting from when Judge Pierre Leval articulated the concept in his 1990 article, Toward a Fair Use Standard.  In 1994, the Supreme Court in Campbell v. Acuff-Rose Music Inc. explained:

“The central purpose of this investigation is to see, in Justice Story’s words, whether the new work merely “supersede[s] the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” . . . Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” (citations omitted)

Changing purpose by adding new “expression, meaning or message” to the works of others represents much of what is done with material in special collections and archives. Those reworkings can come in the form of scholarly commentary, new artistic works, or even class projects.  Below you’ll find a video about an interesting combination of those things.

This project sprung out of a course taught at Duke last semester by Professor Kearsley Stewart on Global Narratives of HIV/AIDS. Students in the course were asked to work with the papers of medical anthropologist Maria de Bruyn, a collection held by Duke’sDavid Rubenstein Rare Books & Manuscript Library. Among that collection are materials from conferences which document views (some of which are highly negative) about individuals and groups affected by HIV/AIDS. 

Students, including Ryan Fitzgerald who is in the video, went through those materials and were asked to assess them and comment on them through their own reworkings of the originals. They made copies of the originals and then employed Humumentism,  as laid out by Tom Phillips in his book A Humument, to work over the texts with their own artistic expression to create a new narrative. If you’re interested, you can read more about the class and its collaboration with the Rubenstein Library, the workshop the class held with poet Kelly Swain, and watch the these three videos (1, 2, and 3) of Duke Students Ryan Fitzgerald, Sarah Rapaport, and Edom Tilahun presenting on their work.  A special thanks especially to Ryan Fitzgerald, Rachel Ingold and Kearsley Stewart for help and information for the video. 

Happy fair use week!

Fair Use is for Innovation

[cross-posted from the Copyright at Harvard Library Blog and written for Fair Use Week]

Remember Betamax? I do, but mostly for the fair use case that it precipitated, Sony Corp. v. Universal Studios, Inc. That case was decided by the Supreme Court in 1984. Among other things, it stands for the proposition that fair use allows for copying of copyrighted works for personal, non-transformative purposes, such as in-home recording of television shows to view at a later time. Betamax machines aren’t particularly relevant anymore, but the approach on how courts should apply fair use in light of technological change, as outlined in the case, is as relevant now, as ever.

Fair use and the purpose of copyright

At this point, personal home copying is commonplace; we do it all the time with home DVRs, when we back up our computers and phones, and when we transfer mp3s from an old device to a new one. It’s worth remembering that the legality of this sort of everyday copying, and the legality of the technology that supports it, wasn’t always accepted.

One of the issues that the Betamax case brought to a head was what courts should do when faced with new technology that makes following the literal terms of the Copyright Act result in legal outcomes that don’t match up with copyright’s underlying purpose. The Betamax court framed the issue this way:

“The immediate effect of our copyright law is to secure a fair return for an `author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. `The sole interest of the United States and the primary object in conferring the monopoly,’ this Court has said, `lie in the general benefits derived by the public from the labors of authors.’  When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose.” (citations omitted).

Fair use is one of the tools that gives courts some flexibility in construing the terms of the Copyright Act in light of its basic constitutional purpose. It is an “equitable rule of reason” that gives courts requires courts to “avoid rigid application of the Copyright Statute when on occasion it would stifle the very creativity which that law was designed to foster.” In that role, fair use has, through the years, facilitated all sorts of technological advancements, from video game development to plagiarism detection software to search engines to image search.

ReDigi and digital resale

One area where we are seeing some interesting emerging innovation is in technology that facilitates secondary markets for digital copies. As a result of so much invention in personal copying and storage devices (and distribution mechanisms to get content to those devices), we now find ourselves in a situation where users have legitimately purchased copies of works for which they never obtained a physical copy. iTunes is the most prominent example, where $0.99 will buy you an mp3 and a variety of other files.

What users can do with those copies is an interesting question. In the past, purchasers of physical copies of books or records could resell, lend, or even destroy the copies they purchased. Congress and the courts recognized that it was desirable for such secondary uses to go unimpeded by copyright, and so crafted a limit on the ability of copyright holders to control downstream distributions of their works after the “first sale” of the copy.

For digital copies, however, the question is a bit more complicated. Users who want to resell or lend their digital copies may be free to “distribute,” but reselling or lending digital copies also, technically, requires a reproduction of the file from one device to the next. The first sale rules, at least as codified in the statute, only address distribution and not reproduction, so technically these resales don’t fall within its scope.

This seems like a prime opportunity for fair use to jump in and bridge the gap between the strict terms of the Copyright Act and the underlying purpose of what the Act is trying to achieve. That’s precisely the issue currently being argued on appeal by a company called ReDigi, which has setup its own online market place for reselling your unused iTunes files. ReDigi lost before the lower court, but it is now taking up its case before the Second Circuit Court of Appeals.

As with the Betamax case, the implications for other applications of fair use extend far beyond the immediate uses that ReDigi seeks to make in reselling mp3s. Among other things, it could facilitate library lending of e-books (as argued in this excellent amicus brief from ALA, ACRL, and ARL and Internet Archive), and could relieve all sorts of legal concerns about transferring and providing access to born-digital archival materials.  It’s the kind of case that could also fuel the vision outlined by Internet Archive in its ambitious $100 million, 4 million book digital-lending project.

Whether or not ReDigi wins this particular battle, I think it’s worth celebrating that fair use has provided the flexibility to pursue these sorts of innovations in the past that help fulfill the Copyright Act’s Constitutional purpose of promoting progress.

Fair Use for Authors

Happy fair use week! I’m sure many of you have already taken note that February 20 to 24 is a week-long celebration of copyright’s fair use doctrine. The organizers at fairuseweek.org have done a great job collecting information about events and sharing resources. This ARL-commissioned fair use myths infographic is among my favorites.

One of the things I plan to do this week is talk about how important fair use is for authors. Duke, like many universities, is home to thousands of faculty and student authors who produce a tremendous quantity of creative work. In support of them, on February 23,  the Duke University Libraries Office of Copyright & Scholarly Communication will host a workshop for graduate student authors who have questions about fair use in writing their dissertations and for other writing projects. If you’re at Duke and interested, we invite you to click the link above and register!

Why Authors’ Perspectives on Fair Use Matter

At our fair use workshop I intend to emphasize to those grad students the importance of expressing their views, as authors, about what types of copying and reuse they believe are reasonable under fair use. To frame that discussion,  I plan to have participants talk about this perspective given by the Supreme Court in Harper & Row v. Nation Enterprises, which does a nice job highlighting the special relationship that authors have with the fair use doctrine:

“[T]he author’s consent to a reasonable use of his copyrighted works ha[d] always been implied by the courts as a necessary incident of the constitutional policy of promoting the progress of science and the useful arts, since a prohibition of such use would inhibit subsequent writers from attempting to improve upon prior works and thus . . . frustrate the very ends sought to be attained.” Professor Latman, in a study of the doctrine of fair use commissioned by Congress for the revision effort . . . summarized prior law as turning on the “importance of the material copied or performed from the point of view of the reasonable copyright owner. In other words, would the reasonable copyright owner have consented to the use?” (citations omitted).

Reflecting on that quote, sometimes I think our understanding about author perspectives on copyright has been dominated by those who have strong economic interests in the sale of their work. For many years, groups such as the Authors Guild have been vocal advocates for their membership, which includes many trade book authors. But there are many other authors (historically, less vocal) with a different perspective, who create with sharing and readership as their dominant motivation, not making money. That includes many academics.

Authors Alliance

One group, the Authors Alliance (I am a member), has taken up the job of “promot[ing] authorship for the public good by supporting authors who write to be read.”  Authors Alliance has been working to give a powerful platform from which the views of these authors, including many academics, can be expressed. One of the issues that Authors Alliance has focused on is the importance of a strong fair use right for authors.

A good example comes from an amicus brief that Authors Alliance recently filed in the Georgia State University fair use e-reserves case. That case was initially brought in 2008 against GSU by Cambridge University Press,  Oxford University Press and Sage. It’s now on its second appeal before the 11th Circuit Court of Appeals. The case is largely about whether it was permissible under the fair use doctrine for GSU faculty to make excerpts of academic books available to students through the GSU electronic course reserves system.

Even though the GSU suit has been ongoing for nearly nine years (!), as far as I can tell, no one has bothered to give the courts the perspective of the actual authors of the excerpts at issue in that case. In its recent amicus brief, Authors Alliance did just that.  In a page and a half of direct quotes, the brief highlights some straightforward but until-now undocumented views of the authors who wrote the chapters and books used by GSU faculty in their classes. These included, for example, quotes like “I want my work to be read as widely as possible. I have no trouble with articles or individual chapters of my book being copied for use in the classroom. In fact, I welcome it.” (Carolyn Ellis, Professor of Communication at University of South Florida and an Authors Alliance member).

While the brief does a fantastic job of working through thorny legal questions about the application of copyright law to educational use of academic works, to me the most powerful and persuasive parts of the brief  are the statements from authors themselves about what they think should be permissible, and why. I don’t know whether those quotes will leave the same impression on the appellate court, but I am optimistic.

So, authors: speak up! Talk about why fair use is important for your own work and how it has helped you. And talk about how you want your work to be used by others, whether in the classroom, in new research and scholarship, or by readers more generally.

How to Restrict Access to the Law (and Make Money Doing It!)

Standardization is really important. Huge parts of modern life—everything from sending an email to the structural integrity of your car—depend on standards. Among other things, standards make sure we’re all on the same page. When I say “2017-02-07” you might have some clues about what I mean, but if I tell you that this string of numbers is expressed according to ISO 8601, you’d know for sure that I’m referring to today’s date.

Standardization is so important, in fact, that a large number of standards are made part of the law. On Friday the Federal District Court for the District of Columbia issued an opinion in ASTM v. Public.Resource.Org, addressing some hard questions about the extent to which copyright applies to standards, and in particular standards that have the force of law by virtue of their official adoption by regulatory agencies. The court concluded that the standards at issue in that case—a variety of technical and education standards developed by ASTM, APA, and several other groups—are protected by copyright and that their incorporation into binding law through regulations does not affect that copyright-protected status. I find that conclusion troubling.

A Standards Business Model

First, why do organizations like ASTM care? Imagine that you’re developing a new standard and you think you need to make some money to recoup your costs. One way to do that is to charge people who want to use the standard. To make that work you’d probably try to obtain some form of intellectual property protection so that you have leverage when asking for your fee. What kind of IP protection do you want? There might be some ways that you could try to work your standard into something patentable, but patents are expensive and hard to obtain. Another option is copyright. Copyright lasts much longer, is easier to obtain, and has some hefty enforcement provisions (statutory damage awards up to $150,000 per work infringed). So, you go with asserting copyright.

Next, you need to get people using this standard. Of course, voluntary adoption is great. But mandatory compliance is even better. So, you lobby some government agencies to adopt your standard as binding law itself.  That way, anyone who is obligated to follow the law will have to also follow your standard. It’s important, though, that the text of your standard not be reproduced in the regulation itself. Those are generally freely available, but you need to sell the thing. Instead, you aim to get the regulation “incorporated by reference” into the regulation; the regulation says that the public must comply with Standard X and gives a reference to it, but if a member of the public wants to know what Standard X  actually says in order to comply with the law, they’ve got to go buy a copy from you.

Now, I don’t mean to say that incorporation of standards into law is a bad thing or is only done to make money. It isn’t, but the restricting access part of this model seems problematic. It’s also at the core of the business model staked out by ASTM and the other plaintiffs in ASTM v. Public.Resource.Org. Posting free copies of those standards to the web for public access, as Public.Resource.org does, poses a threat to that model.

Should Standards Receive Legal Protection?

First, the business model is premised on copyright protection of standards, but there are persuasive arguments for why standards should be excluded from copyright protection. The text of the Copyright Act is a good place to start. Section 102(b) states specifically that “systems,” among other things, are not protected. That and a variety of other  theories for why copyright protection should not apply were raised in the ASTM case.  This post from TechDirt does a good job working through the copyright-related arguments made by Public.Resource.org. The court rejected them all, but I imagine we will hear more about them on appeal.

Beyond copyright, though, the main reason I find the ASTM decision troubling is that it gives relatively little attention to fundamental questions about due process, the public’s right to access the law, and earlier caselaw on the subject.   Rather than write out my own ideas on this, I’ll leave you with this good quote from the 1980 First Circuit case Bldg. Officials & Code Adm. v. Code Tech., Inc., which outline those concerns and raises some good questions that I hope will be addressed on appeal in the ASTM case:

“[Earlier Supreme Court cases hold that] the public owns the law not just because it usually pays the salaries of those who draft legislation, but also because . . . ‘Each citizen is a ruler, –a law-maker.’ The citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authority from the consent of the public, expressed through the democratic process.

Along with this metaphorical concept of citizen authorship, the cases go on to emphasize the very important and practical policy that citizens must have free access to the laws which govern them. This policy is, at bottom, based on the concept of due process. . . . Due process requires people to have notice of what the law requires of them so that they may obey it and avoid its sanctions. . . . But if access to the law is limited, then the people will or may be unable to learn of its requirements and may be thereby deprived of the notice to which due process entitles them. [Defendant] points out that the holder of a copyright has the right to refuse to publish the copyrighted material at all and may prevent anyone else from doing so, thereby preventing any public access to the material. . . . We cannot see how this aspect of copyright protection can be squared with the right of the public to know the law to which it is subject.”

We’re back! (and so is the GSU fair use e-reserves appeal…)

Dave Hansen
Dave Hansen, Director of Copyright and Scholarly Communications

After a few months of quiet, I’m happy to say that the Copyright & Scholarly Communication team at Duke is bringing this blog back to life. Since Kevin Smith left to become Dean of Libraries at the University of Kansas, I have stepped in to take over his old post as Director of the Office of Copyright and Scholarly Communications at Duke. If you’re interested in who I am and what I do, you can check out my new Scholars@Duke profile. I plan to use this blog to cover the same types of issues that Kevin did, especially copyright and publishing, as well as to highlight some of the interesting projects happening here at Duke on those same subjects.

I think it’s only appropriate that my first post is about the Georgia State University e-reserves copyright lawsuit. This blog has more or less chronicled this suit since it was filed in 2008. For anyone unfamiliar, the case is about whether it is fair use for GSU professors to make electronic excerpts of books available to students in their courses.  The plaintiffs Cambridge University Press, Oxford University Press and Sage argue that in most cases it is not fair use. So far, the courts have mostly decided in favor of GSU regarding the specific uses made by GSU and its faculty.

Publishers’ Brief on Appeal

Publishers' SECOND appeal is again before the 11th Circuit Court of Appeals
Publishers file opening brief in their SECOND appeal before the 11th Circuit

On Friday the Publishers filed their opening brief on appeal (their second appeal!) before the 11th Circuit Court of Appeals. The brief isn’t a huge development. But, it makes some fascinating, and concerning, fair use arguments that are worth discussing. On fair use the brief basically argues:

  1. The lower court didn’t balance the fair use factors correctly. It argues that the court placed too little weight on the fourth fair use factor (whether GSU’s uses harmed the market for the works).
  2. That the lower court made it too hard for Publishers to show that their markets were in fact harmed.

Market harm is critical for the Publishers because they don’t have much else left to argue about. Based on what the appellate court said on the last appeal, the first factor (educational in-class use) strongly favors GSU; the second factor (nature of the work) tends to favor GSU in many cases, though the appellate court said this factor doesn’t count for much, and the third factor (the amount and substantiality used) also tends to favor GSU in most instances

Balancing the Fair Use Factors

The Publishers make some good introductory points about how courts should weigh the fair use factors. The brief recites case law saying that the factors should be balanced together, that there are “no hard evidentiary presumptions” as to what types of uses may be fair, and that the district court should not take a “rigid” or “mathematical” approach to fair use (something that the district court was chided for the first time around on appeal).  So far, so good.

But then comes their core argument about market harm and fair use balancing, which I think fails. It starts by asserting that the lower court was too mechanical in its approach. The brief seizes on a statement made by the lower court, that it “estimates that the initial, approximate respective weights for the four factors as follows: 25% for factor one, 5% for factor two, 30% for factor three, and 40% for market harm.” (Dist. Ct. Op. at 14).

I agree that assessing the numerical percent value of each factor is somewhat unusual. What’s really strange, though, is that you would think that the Publishers would be happy with a mechanical approach under which market harm is weighed as 40% of the analysis—in other words, almost outcome determinative.

Market Harm Above all Else?

Apparently almost outcome determinative isn’t good enough. In a section of the brief that contrasts starkly with those opening (and mostly accurate) statements of the law about balancing the factors together, Publishers argue that no use can be fair use if there is any market harm:

“This (literally) calculated choice of numerical weights . . . produced findings of fair use even where the court found market harm under factor four that weighed against fair use. Indeed, the court made clear its resistance to granting dispositive significance to factor four by stating that while factor four would be given “additional weight,” factor three was “critical” because it was “at the vortex of the holistic evaluation required by the Court of Appeals’ Opinion.”

Like some of the other positions the Publishers have raised in this case, this approach might make sense 30 years ago. In 1985, the Supreme Court announced that the market harm factor is “undoubtedly the single most important element of fair use.” But, the Supreme Court has since walked back this approach. It stated clearly in 1994 in Campbell v. Acuff-Rose that “all [factors] are to be explored, and the results weighed together, in light of the purposes of copyright.”

In the first GSU appeal, the 11th Circuit recognized that Campbell is controlling:  “This language [from Campbell] appears to be inconsistent with any single factor being deemed the single most important.”  The 11th Circuit reasoned, however, that in this case because “the threat of market substitution is severe, it is appropriate in this instance to afford relatively great weight to the fourth factor in the overall fair use analysis.” In fact, the lower court obeyed that direction. It gave market harm 40% weigh in each determination, more than any other factor. It just declined to make market harm outcome determinative, (worth 51% or more, in other words) which is what the Publishers wish for.

Takeaways for Educational Users

The weight given to market harm—even the difference between 40% and 51%, if you want to try to attach a percent value on it—is critically important for educational users. We now live in a world where books never go out of print (print-on-demand). License services are proliferating, and one can buy permission to do an increasingly broad array of activities, such as text or data mining. If courts accept that even the tiniest lost licensing revenue in those markets constitutes a “harm” that is judged to be determinative in the overall fair use analysis, then the rights of educators to use copyrighted works is diminished significantly. We’ll have to wait and see what the 11th Circuit does, but I hope it sees through this argument and upholds the decision of the lower court. 

Here we go again: latest GSU ruling an odd victory for libraries


My first thought when I read the new ruling in the Georgia State copyright lawsuit brought by publishers over e-reserves was of one of those informal rules that all law students learn — don’t tick off your judge.  From the first days of the original trial, the arrogant antics of the attorneys representing the publisher plaintiffs — Oxford University Press, Cambridge University Press, and Sage Publishing — clearly put them in a bad light in the Judge Evans’ eyes. Those chickens came home to roost in this latest opinion, especially where the plaintiffs are chided for having filed a declaration about what licenses were available for excerpts back in 2009, even after the Judge told them not to, since that information had not been introduced as evidence in the original trial.  All of that evidence was stricken, and the Judge based her new opinion on the evidence that was before her in that first trial.  I can imagine that the publishers might use that ruling as a basis for yet another appeal, but if they do so, they had better be able to prove that the evidence is genuine and reliable, and to explain why, if it is, they did not produce it at trial back in 2011.

But I have put the cart before the horse; let’s look at the ruling we just received from the District Court.  In case some have lost track, this case was originally decided by a 2012 ruling by Judge Evans that found infringement in only five of 74 challenged excerpts, and awarded court costs and attorney’s fees to GSU as the “prevailing party” in the case.  The publishers appealed that decision to the Eleventh Circuit Court of Appeals, which vacated the trial court holding in 2014, sending the case back to Judge Evans with a set of instructions on how to improve the fair use analysis for these challenged excerpts.  As has been noted many times before, the publishers lost nearly all of the big principles they had wanted to establish in the case; the Court of Appeals refuted most of the publishers’ arguments even as it did what they asked and vacated the first ruling.

Now, using the new fair use analysis directed by the Court of Appeals, Judge Evans has handed the publishers yet another loss.  One wonders how many times they will have to lose this case before they finally learn something about the state of copyright law today.  Still, this loss for the publishers is only the oddest sort of victory for libraries.

The new fair use analysis that Judge Evans uses is carefully designed for situations where the challenged use in not transformative; the non-transformative nature of the use means that the small portions used must be scrutinized very carefully, and it means that the fourth factor — the potential impact of the use on the market for or value of the original — gets extra weight.  It is very important to notice this fact, because it means that this analysis used by Judge Evans will not be applicable in many other situations, especially in academia, where the uses are, unlike with e-reserves, transformative.

Even though both the trial court and the Court of Appeals have held that e-reserves are not transformative, both courts have affirmed that the first fair use factor — the purpose and character of the use — will still favor fair use when that purpose is non-profit and educational.  So throughout this new decision, Judge Evans continues to hold that the first factor always favors fair use.

The analysis of the other factors has changed, however.  For factor two, the nature of the original, Judge Evans does not make a blanket assumption, owing to instructions from the Eleventh Circuit, but looks at the nature of each excerpt.  In most cases, she finds that informational matter is mixed with more individualized scholarly commentary, and the result is that this factor is usually neutral — neither favoring nor disfavoring fair use.  In the few cases where it counts against fair use, it has little impact (the Judge says this factor is only 5% of each decision).

In the same way, factor three now gets a more careful and specific analysis.  The 10% or one chapter rule that Judge Evans used in her first opinion is gone, at the instruction of the Court of Appeals.  Instead, Judge Evans looks at each excerpt and evaluates its appropriateness to the allowable purpose (from factor one) and its potential to substitute for a purchase of the book (market substitution, anticipating factor four).  In many cases, she finds that the excerpts are a very small number of pages and a small percentage of the entire work (so not a market substitute), are are also narrowly tailored to accomplish a specific teaching objective.  In those cases, this factor will favor fair use.

Factor four, which the Judge now believes should constitute 40% of the fair use decision in this particular situation, is where most of the action is in this ruling.  The analysis, the Judge says, is two-fold, looking at both harm to the potential market for the original and harm to the value of the work, which means looking at the importance of the licensing market.  About this latter source of potential value, the Judge says that she must decide “how much this particular revenue source contributed to the value of the copyright in the work, noting that where there is no significant demand for excerpts, the likelihood of repetitive unpaid use is diminished” (p. 9).  The result of this inquiry is that a lot of financial information about each book — its sales over time and the amount of revenue derived from the permissions market — is very important in the fourth factor analysis.  The charts for many of the books that reflect this information make for fascinating reading, and contain information I suspect the publishers would rather not have made public.  This is where it becomes most difficult for libraries to apply the analysis that Judge Evans is using, because the Court has access to information, and time to analyze it, that is not available to libraries as they consider e-reserve requests.  Still, I think it is important to note that the standard the Judge is using in this evaluation is pretty high and it is focused on value to the authors and to users:

[W]e must determine how much of that value (the value of the work to its author and the potential buyers) the implied licensee-fair users can capture before the value of the remaining market is so diminished that it no longer makes economic sense for the author — or a subsequent holder of the copyright — to propagate the work in the first place (page 8, quoting the 11th Circuit).

In other words, this analysis is opening up a significant space in the idea of market harm, which permits potential fair users to diminish the value of the work in question to some degree, as long as that reduction in value is not so steep as to discourage writing and publishing these academic books.  Licensing, in this analysis, is the remedy only for that kind of steep loss of value; it is not a mere right of the copyright holder to obtain all the value from the work that is possible.

Judge Evans applied this complex formula for fair use to 48 challenged excerpts.  It was only 48 because for 26 of the ones discussed in her original ruling she found that there had been no prima facie case for copyright infringement made out, either because the publishers could not show they held the copyright or because there was no evidence that any students had used the excerpt.  This part of the ruling was not challenged, so only these 48 fair use rulings had to be redone.  Bottom line is that she found fair use for 41 of the 48, and infringement only in seven cases.  As Brandon Butler points out in his discussion of the ruling, even that might overestimate the infringement, since it appears that the summary in the decision may list at least some instances of infringement that were actually found, in the specific analysis, to be fair use.

So this ruling, like each ruling in the case, is clearly a disaster for the plaintiff publishers.  Once again it establishes that there is significant space for fair use in higher education, even when that use is not transformative.  Nevertheless, it is a difficult victory for libraries, in the sense that the analysis it uses is not one we can replicate; we simply do not have access to the extensive data about revenue, of which Judge Evans makes such complex use.  So what can libraries do, now that we have this additional “guidance” about e-reserves from the courts?  I think there are two fundamental takeaways.

First, we should continue to do what we have been doing — making careful fair use decisions and relying on those decisions when we feel the use is fair.  While we do not have much of the information used by the Court in this latest ruling, we still do have the security provided by section 504 (c)3 of the copyright law, which tells us that if we make good faith fair use decisions we, as employees of non-profit educational institutions or libraries, are not subject to statutory damages.  This greatly lowers our risk, and adds to the disincentive to sue academic libraries that must surely stem from the GSU experience.  All we can do, then, is to continue to think carefully about each instance of fair use, and make responsible decisions.  We still have some rules of thumb, and also some places where we will need to think in a more granular way.  But nothing in these rulings need fundamentally upset good, responsible library practice.

The second takeaway from this decision is that we should resort to paying for licenses only very rarely, and when there is no other alternative.  The simple fact is that the nature of the analysis that the Court of Appeals pushed Judge Evans into is such that licensing income for the publishers narrows the scope for fair use by libraries.  To my mind, this means that whenever we are faced with an e-reserves request that may not fall easily into fair use, we should look at ways to improve the fair use situation before we decide to license the excerpt.  Can we link to an already licensed version?  Can we shorten the excerpt?  Buying a separate license should be a last resort.  Doing extensive business with the Copyright Clearance Center, including purchase of their blanket campus license, is not, in my opinion, a way to buy reassurance and security; instead, it increases the risk that our space for fair use will shrink over time.

[personal note — this will certainly be my last word here at the Scholarly Communications @ Duke site, and it is fitting that it deal with the Georgia State case, about which this site has seen so much commentary.  For the sake of continuing this conversation and including more discussants, I am also going to post this piece on the new group blog of which I am a part, IO: In the Open.  Apologies if the repetition is annoying to anyone.]

Steal this book?

Last week I was researching a copyright and fair use issue for a faculty member, and needed to see a copy of a book held by Duke’s Rubenstein Rare Book and Manuscript Library.  As I explained the issue and what material I wanted to use to the Rubenstein staff, a researcher sitting nearby listened intently. As soon as we finished, she told me that she was the President of the Authors Guild and that they were suing Google over fair use.  She began to explain to me why Google was wrong, but that the author for whom I was doing the research should be allowed to rely on fair use.  When I introduced myself as a lawyer and copyright specialist for the Libraries, the conversation came to a polite but stilted conclusion.

This week, however, I got a chance to see more fully what that researcher, whose name is Roxana Robinson and who was giving a lecture that afternoon in the Library, has to say about Google, in a column she wrote for the Wall Street Journal called “How Google Stole the Work of Millions of Authors” (behind a paywall).  Ms. Robinson, a novelist and biographer, unfortunately proves what I suspected at the time of our encounter, that her perspective on fair use is based on a preconceived idea about who are good users entitled to rely on fair use (authors) and who are bad, unworthy users (Google), rather than on an understanding of the careful legal analysis of specific uses that actually underlies these decisions.

The WSJ column employs some interesting rhetoric, starting with its title, which is clearly intended to provoke a visceral response.  Many people have noted that the language of theft and stealing is inappropriate when the issue is copyright infringement.  This point is made in great detail in William Patry’s book “Moral Panics and the Copyright Wars.”  As is true for most crimes, the definition of theft includes an intention, a mental state or “mens rea” that is a required element of that crime.  For theft this intention is “to deprive the true owner of [the personal property]” (definition from Black’s Law Dictionary, Seventh edition).  Because of the nature of intellectual property, copyright infringement never meets this definition; that is why the law has a different word — infringement — for the unauthorized taking of someone else’s IP.

So the headline of Ms. Robinson’s column is legally incorrect and intended, I think, to stir up her base rather than to make an argument that could sway the Supreme Court (for more on this point, see the rebuttal published in Fortune “Why the Authors Guild is Still Wrong about Google’s Book Scanning“).

The column also makes a couple of sardonic remarks about quotes that can be found using Google Books.  Here the argument breaks down pretty badly, because both of the quotes Ms. Robinson chooses, one from Shakespeare and one from Emerson, are in the public domain.  Her effort to be ironic seriously backfires here, because her own column is actually proving the utility of the Google Books database in a way that emphasizes its lawful use of PD texts.  Rhetoric has truly overcome logic.

It is worthwhile, nevertheless, to think a minute about the logic structure of the argument that what Google has done is infringement.  Ms. Robinson makes the point that there are many books that were scanned by Google, that Google is a profitable company, and that no authorization for the scanning was asked for or given by the authors of the works that were scanned.  All of this is true, of course, but it does not amount to an argument that Google has infringed any copyrights.  What is missing, at least as I see it, is any notice that the authors have been harmed.  The rhetoric of the column clearly tells us that the Authors Guild, and at least some individual authors who are involved in the lawsuit, are angry.  But it does not explain a fundamental element of any tort action — harm.

The two courts that have considered this case both found that there was no harm done here — no negative impact on the market for or value of the works in question, to use the language that is part of a fair use analysis.  Users cannot obtain any significant portions of books that are limited to snippet views; the AG’s own experts were unable to retrieve as much as 16% of any work using word searches and snippet results, and even that amount of text was randomized in a way that made reading a coherent piece of the work impossible.  The is just no evidence that any sales are lost due to this finding aid, and it is quite possible that sales will be gained.

There is, of course, the question of a licensing market.  But that is almost a silly question.  A market for licensing scans to create an index has never existed, and it is impossible to imagine that any of the authors had such an idea in mind when they wrote their works.  As Judge Leval said in his decision for the Second Circuit Court of Appeals, this is not really even a use of the work, it is a use of information about the work, for which a secondary licensing market simply is not appropriate.  Creating such a market would be revolutionary, and it would do much more harm to the overall environment for books and reading than anything Google could think up.  What the Authors Guild seems to be saying here is that Google should pay us for something we never thought we would or should get paid for, simply because they have a lot of money.  Perhaps when we recognize how weak that argument actually is it becomes understandable that Ms. Robinson relied on overheated rhetoric rather than legal or logical arguments.  But if the purpose of her essay is to convince people that the Supreme Court needs to take the case to right a serious wrong, it falls far short, and is unlikely to convince the nine citizens whose opinion on that issue matters the most.

Copyright MOOCs, new and refreshed

When my colleagues Anne Gilliland and Lisa Macklin and I released our first Coursera MOOC about copyright, called Copyright for Educators and Librarians, we were very pleased with the reaction.  Although our enrollment for that first MOOC was, at just over 10,000 participants, rather low by MOOC standards, we had a higher than normal percentage of completions, and the feedback we got from colleagues was quite positive.

That course ran in the summer of 2014.  In July of 2015, we were able to release a new version of the same course in an on-demand format, meaning that participants are able to start the course whenever they wish and can proceed at their own pace without a proscribed ending point.

The move to on-demand is important because it brought us a bit closer to our overall goal, which has been to provide a form of copyright education that is accessible in the several sense of that word to all of our colleagues in education, especially.  The course is still free, although there is a small fee if the participants want to receive a “verified certificate” of completion.  We began this project aware that the Center for Intellectual Property at UMUC had recently closed, so the education community had lost access to their series of course offering on copyright that carried continuing education credit.  Our hope was to provide an opportunity to learn about copyright that was free to all, but also could be used, through the verified certificates, by those colleagues who want to learn about the subject AND get some form of (less expensive) credit for this professional development activity.

Now we have taken another big step toward that goal, with the release today of our second MOOC, on Copyright for Multimedia.  Like the first course, this MOOC is on-demand, free to take, and relatively short – four substantive modules and an introduction.  In this second course, the modules focus on four different media – data, images, music and film.  It grew out of our awareness how often the questions brought to us focus on different media.  Many of our colleagues seem confused about how copyright “rules” from the print world, apply in an environment rich with diverse forms of expression and communication.  This confusion is understandable, since copyright was born with print technology and continues to adapt only uncomfortably to these “new” media.

When we are asked about what “copyright for music,” or “copyright for film,” looks like, we try to emphasis that the one copyright law in the U.S. is intended to apply without regard to medium of expression.  Nevertheless, it is perfectly true that some provisions of the law are media-specific.  More significantly, the circumstances in which different media are used are often quite different from the more familiar facts surrounding the use and distribution of print.  There is an lawyer’s maxim that says, “change the facts and you change the outcome,” and that is never more true that when we are talking about different media.

Our new MOOC tries to address these differences, and also to further develop the framework for analyzing a copyright issue that we built in the first course.  Now that both MOOCs are available on the Coursera platform, we hope that they will be a continuing resource to improve copyright understanding for our colleagues.

I want to add a couple of personal notes to this announcement of the two-part series of MOOCs on copyright.

First, I want to say what a wonderful experience it has been to work with Lisa and Anne, who are as smart and creative about teaching as they are about copyright, as well as with the online course team at Duke.  I want especially to note my sense of awe at the creative, complex and realistic scenarios that Anne Gilliland can think up to tease out the implications of copyright in different situations; I hope our participants find them as thought-provoking and amusing as I do.

Second, because of the announcement issued today about my new position as Dean of Libraries at the University of Kansas, and thus my departure from Duke, it seems unlikely that I will participate in any more MOOCs in this series.  Our original plan was for three courses, but the two we now have stand alone and, we hope, also work together as a series.  It is now an open question whether there will be a third MOOC in this series, but the process of creating these two has been delightful, and the product, I profoundly hope, useful to our colleagues and to many others.

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.