ETDs, publishing & policy based on fear

The July 2013 issue of College & Research Libraries contains an important article on the question “Do Open Access Electronic Theses and Dissertations Diminish Publishing Opportunities in the Social Science and Humanities?”  The article reports on a 2011 survey of publishers, which follows up and refines several previous surveys done to see if publishers really do decline to publish revised dissertations when the original work is available in an open access repository.  All of these surveys found the same thing — a large majority of publishers DO NOT treat the existence of an open access ETD as prior publication that disqualifies the revised version from publication.  In fact, while early studies asked the question of whether or not ETDs were considered prior publication and found that about 15-25% said they did, when the 2013 authors phrased the question differently — how do you approach revised versions of manuscripts derived from OA ETDs — the percentage of publishers who said they would not consider those manuscripts was even lower, consistently less than 10%.

By far the majority of journal and university press publishers told the authors that such manuscripts were either always welcome or considered on a case-by-case basis.  It is naturally true that dissertations have to be significantly revised prior to publication, but that is the case regardless of whether or not the dissertation is online.  Consider these two quotations from survey respondents, one from a university press and one from a scholarly journal:

We normally consider theses or dissertations for publication only if the author is willing to significantly revise them for a broader audience; this is our practice regardless of the availability of an ETD.

Readers will consider our article to be the version of record, the version they should read and cite, because (a) it will have been vetted by out double-blind peer review process, (b) it will have been professionally edited, and (c) it will be the most up-to-date version of the material

This does not sound like publishers who are afraid of ETDs.  Indeed, even the very low numbers about publisher reluctance may need to be set in further context, since I think they still over-estimate the degree to which open access is the root cause of whatever difficulties there may be in getting a revised dissertation published.  More about that in a bit.

But first we need to address this farcical statement from the American Historical Association asking institutions that adopted ETDs to provide embargoes on OA of up to six years.  The AHA says it is afraid that ETDs may inhibit opportunities for students to publish their dissertations; they specifically claim that “an increasing number of university presses are reluctant to offer a publishing contract to newly minted PhDs whose dissertations have been freely available via online sources.”  But they offer no evidence for this claim, and the evidence that is out there, including this most recent survey, directly contradicts the assertion.  This is not the way a society of professional scholars should work; policy should be based on data, not merely fear and rumor.  And factual claims should be sourced.  Every scholar knows this, of course, but the AHA asserts an “increasing number” without citing any source, possibly because the available sources simply do not support the claim.  It is ironic that the AHA, in a statement purporting to defend the interests of graduate students, models such bad scholarly practice for those very students.

Speaking of inaccurate assertions, there is one quoted in the C&RL article from Texas A&M Press Director Charles Backus that needs to be addressed.  Mr. Backus is quoted as saying that his press is in that small minority that is more reluctant to consider a revised ETD “because most libraries and library vendors will not buy or recommend purchase of ensuing books that are based substantially on them.”  The authors of the article, themselves librarians, express surprise at this claim, and indicate that it needs further study.  They want to know how widespread this belief is in the publishing community, but we should also be doing research into whether or not the assertion has any foundation in fact.  Based on my experience, I do not believe that library selectors look at availability of an ETD when deciding whether or not to buy a monograph that is a revised dissertation; in fact, I doubt they usually know whether or not there even is such an ETD.  One librarian told me that she looked for “quality, coverage, currency and authority” when buying monographs and the claim that she might not buy a book because an earlier version was available as an ETD was “poppycock.”

If sales of monographs based on dissertations have declined, and I am prepared to believe that is the case, the reasons should be sought elsewhere than with ETDs.  This is really the other side of the publishers insistence that a dissertation must be substantially revised before it can be considered for publication.  Just as presses need to appeal to a broader audience to support sufficient sales, so libraries are looking at books with broad relevance to the curriculum they support when they allocate their shrinking monographs budget (that is the “coverage” criteria).  Even revised dissertations may be too focused on a specific niche, so they are quite likely to be the first things that get passed over.  But it is not open access that is the problem; the problem is that we have less and less money to spend on books because an ever-increasing share of our collection budgets is going to journal packages.  Your lunch, Mr. Backus, is being eaten by Elsevier and Wiley, not by ETDs.

Speaking of coverage and broad appeal gets me back to my suspicion that even the low numbers reported in this survey might over-report the degree to which ETDs inhibit publishing.  The question that was posed in the survey reported in C&RL was specifically about attitudes toward manuscripts that are revised ETDs.  But a larger question should be asked — are publishers accepting fewer revised dissertations overall, regardless of whether or not the original document is online.  I suspect the answer is that they are accepting fewer dissertations overall, and that is the context in which we should place any discussion about fear of ETDs.  In my own conversations with university presses, two criteria seem most important for them when deciding about any book manuscript — it must have “crossover” appeal, meaning that folks outside academia might want to buy it, and/or it must be suited for course adoption.  For many small academic presses, I think, the days of the purely academic monograph that will be read only be specialists are largely over, and they are over because of economic realities (like shrinking library budgets for books) that are independent of the movement toward ETDs.  It is this much more general set of conditions that spells bad news for revised dissertations.

Out of all of this, I hope for three next steps.  First, I hope that the next survey about ETDs will look at how librarians are actually making purchasing decisions, and thus rid us of the claim that libraries are reducing monograph purchases based on the availability of ETDs.  Second, broader research about the number of book manuscripts being accepted by academic press and the criteria that guide those decisions should be undertaken.  And finally, I hope that the AHA will look at this issue more responsibly and issue a statement that is guided by real evidence rather than by fear and nostalgia.

The problem with permission

Because Duke has begun teaching Massively Open Online Courses (MOOCs), my office has gotten much more involved, over the past year, in the process of seeking permission to use copyrighted content.  We began a new service to help MOOC instructors make careful fair use decisions, find freely-licensed content for their courses, and get permission for materials where we deem it necessary.  The story of the first year of that service is told in this article that has just been published by D-Lib Magazine, written by Lauren Fowler, our first permissions intern, and me.

From the perspective of one asking a rights holder for permission to use some content, the process has a lot of frustration, some of which we detail in the article.  The most common frustration, as many people have discovered, is that so many rights holders simply do not respond.  They are not obligated to, of course, but even a simple “NO” would save lots of wasted effort and time on both sides of the exchange.  Yet a significant number of rights holders do not even send that; in our article we note that 23.5% of our requests garnered no reply at all, even after several contacts.

Sometimes, however, it is even more frustrating to receive a reply, because those answers often confirm that we are not dealing with a well-managed or carefully-administered process.  Frequently when we do get a response, what we hear back clearly indicates that the staff member who contacts us is unaware of what we have actually asked.  We have a carefully written request letter that is very clear about exactly the use we intend to make of the work if permission is granted, yet over and over the rights holder’s staff replies with inapposite questions or, amusingly, a grant of permission to do something else entirely.

One example can illustrate this humorous frustration.  Shortly before she left to take up a full-time library job, Ms. Fowler sent a letter to a major motion picture studio because one of our instructors wanted to use an illustration from a movie in a way that was probably fair use but for which we decided to ask permission, since it is a well-known picture and MOOCs are receiving so much attention and such large participation.  We got back a very nice message from a permissions rep saying that “the attached letter should cover your use.”  Unfortunately, the attached letter was a painstaking, though inaccurate, description of the exception for the public display of a copyrighted work in the course of face-to-face teaching.  I reviewed our multiple requests, and it seemed impossible not to understand that we were asking about an online use.  Yet we were told that a letter about physical classroom use, for which permission is not even required, would serve our purpose.  This left us at loss about how to proceed; we didn’t really have the needed permission, but it seemed like the rep was trying to grant it.  Maybe she just attached the wrong form letter.  So what do we do, as the time to make decisions about course content grows short?

It is certainly possible to conclude from the experiences we have had, which many others have also reported — see Susan Bielstein’s wonderful book on “Permissions, A Survival Guide” — that large rights holders simply are not interested in giving permission, or even in asking for permission fees.  The experience seems to confirm what the judge in the Georgia State case held in her ruling, that permission income is simply not that vital for most rights holders, so they invest very little time and energy into processing permission requests.

But recently I have dealt with two requests from the other side — requests directed at Duke from two large textbook publishers for permission for them to use content putatively owned by us in books they were publishing.  Astonishingly, the same laissez faire attitude seems to prevail when the big content company is doing the asking as it does when we are seeking permission from them.

In the first instance, a big textbook publishers sent an e-mail asking for permission to reuse an image, and a high-res scan of the image, to the Coordinator of Academic Support in our Office of Information Technology.  That person was clearly mystified — she is not engaged in IP issues or rights in any way — so she got in touch with me.  I could see very clearly that the image in question had been published by the Duke University Press, so we were able to redirect the request.  But we had to do the research (which was easy) because the company did not bother.

When this request finally reached the correct folks at Duke Press, they were shocked at the shoddy effort that the textbook publisher had made.  Even with more limited resources, I know from experience that DUP does much better work.  But the folks at the Press were inclined to see this as isolated incompetence on the part of a company with, it seems, a less than stellar reputation.  Unfortunately, the very next day I received confirmation that the problem is not isolated at all.

Yesterday I received a similar request from a different major textbook publisher.  It was directed to me, which is perhaps a little more sensible than selecting a random person from IT; I get these types of requests quite often, and routinely try to direct them to the right office.  But this one was especially difficult, because it just attached a scan of a page from a published work, and asked for permission to use “the attached.”  The request gave us no idea of where the page had been originally published, what part of that page was the focus of the request, or why the request had been sent to Duke in the first place.  An email to the publisher rep who sent the initial message told us that they were seeking permission to use only a single sentence quotation from the page, which is absurd.  And the request apparently came to us because of a connection between the publication and one of our collection centers.  So I forwarded it to the collection curator, but shook my head as I did so at the bumbling way these and so many other requests from permission come to us from those who yell loudest about the need to base our copyright system on permission.

It is hard not to conclude from these and similar experiences that the publishers sending the requests are not really interested in contacting the correct rights holder or in defining an appropriate scope for a license  They appear to simply be trying to collect paper — any message or letter that says the use is OK is sufficient to be filed away and forgotten.  From the other side, when we make a request for permission the same attitude prevails.  Little effort is made to accurately understand the request or craft an effective license.

Permission from a rights holder can solve many problems; it is an important part of a complete IP rights strategy in the digital environment.  But it is not a process for the faint of heart, nor a solution to be suggested lightly.  Even large professional publishers seem to find it overwhelming or, perhaps, not worth the investment of staff time and effort.  So when, in debates or litigation over copyright issues, rights holders groups assert that permission is the best solution and copyright exceptions should give way to a licensing process, we need to counter those claims by telling these sorts of stories.  Many of us can recount similar instances, and also catalog teaching opportunities that have been lost because permission was simply not available.  Judges and legislators need to know about these problems with permission, because they reenforce the wisdom — the necessity — of building exceptions into copyright and not relying on the whims and dubious competencies of rights holders to manage a permissions-based culture.

Small steps

Court cases rarely result in sweeping victories for anyone.  The Kirtsaeng case decided earlier this year by the Supreme Court was an anomaly in this regard; the court held that the doctrine of first sale applied in the United States to any lawfully-made copy of copyrighted material, regardless of where it was manufactured.  Although no library was a party to the lawsuit, that was a complete victory for libraries, as well as for Mr. Kirtsaeng.  But as I say, that is unusual.  Most of the time, court decisions do not completely satisfy either side, nor do they represent complete vindication for any one set of interests.  And if this is true about final decisions, it is even more the case when the ruling is about only one aspect of an ongoing case.

All of this is by way of saying that we should not read too much into some recent decisions, even though both contain small nuggets of encouragement for libraries.

I already wrote about the decision to reverse class certification in the Google Books lawsuit brought by the Authors Guild.  There is another perspective on that decision here.  But that case is a good example of what I mean.  It is encouraging that the class certification was reversed, provisionally, since so many academic authors are not represented by the position taken by the Authors Guild, and it is great to have the trial court instructed to consider fair use prior to deciding about the class action status of the case.  But there is still a long way to go in that case; Judge Chin has just scheduled the briefings and oral arguments for the next stage.  We cannot yet say for sure that Google Books is or is not a fair use, and even after a final ruling there will probably continue to be disagreement and room for dispute.

It is in this context that we should look at the ruling from the Southern District of New York in the Justice Department’s lawsuit against Apple over e-book pricing.

This was not merely a procedural ruling, to be sure.  It is the final decision of the trial court, which held that Apple and the major e-book publishers conspired to set prices above the standard that had been set by Amazon’s dominance of $9.99 per title.  The judge expressed no doubt that there had been a “combination in restraint of trade” that violated the anti-trust laws of the United States.

It is important to note that this finding involves both Apple and the five major e-book publishers.  Even though all of the publishers settled out of the lawsuit, their behavior is very much at issue.  Consider this quote, in which “plaintiffs refers to the U.D. Department of Justice, the State of Texas and others (the full opinion is here):

The Plaintiffs have shown that the Publisher Defendants conspired with each other to eliminate retail price competition in order to raise e-book prices, and that Apple played a central role in facilitating and executing that conspiracy. Without Apple’s orchestration of this conspiracy, it would not have succeeded as it did in the Spring of 2010.

In a similar vein, the Judge is very clear that neither the Apple executive nor the publisher CEOs who testified were credible to the court.

Obviously this lawsuit, which will certainly be appealed by Apple, has some implications for libraries in their ongoing quest for reasonable and workable terms for e-book acquisitions.  Perhaps the Judge’s orders in the case can help level that playing field a little bit.  But the case is not really about libraries, and we should not draw sweeping conclusions or direct analogies from it.  I want to suggest three general lessons for the rest of us to take from this case.

First, the digital environment is still new and frightening to many in the publishing industry.  They are trying to find ways to control the Internet and to make all the money they think it promises to them, but they are falling behind the curve.  Libraries, especially, need to take what they are told by publishers with several grains of salt and keep open all of our options for the digital life of scholarship.  The publishing industry worked very well for libraries and scholarship in the print era, but now as that industry alternates between wooing and threatening us, we need to acknowledge that, in these changed conditions, they may simply no longer be reliable or trustworthy partners.

Second, for anti-trust laws to be violated, some kind of collusion or conspiracy has to exist.  Simply charging an outlandish price is not an anti-trust violation.  Nor is simply refusing to pay an outlandish price.  Where there are problems is where there are organized boycotts by consumers to try to force prices down and where there are agreements amongst competitors to try and force them up.  An individual library is free to walk away from some of the most one-sided deals it is offered, and even to tell others that it did so and why. And even groups are free to boycott when the issues on which they want to put pressure are not price related, as in the Cost of Knowledge boycott of Elsevier, which focused on the fair treatment of authors.

For anti-trust liability to attach, there must be collusion focused on preventing free market competition between those who can marshal power in that market.  The conspiracy can be covert and secretive — there does not have to be a “smoking gun” — but it must exist.  In this e-books case the judge had no troubling documenting such a conspiracy.  But the basic parameters required for that element of an anti-trust violation can help us in libraries determine the things we can do to bring pressure on publishers that would not rise to the level of such “combination in restraint of trade.”

Third, anti-trust laws cut both ways.  In libraries we are often concerned that we need to avoid liability for collusion that might restrain free trade.  But this must also be a concern for publishers, as the Apple case shows.  Many issues that libraries face, including bundling of journals and e-b0oks, could create anti-trust liability for the vendors as well.  It all depends on whether or not there is a conspiracy or the exercise of excessive market power.  So libraries should be vigilant, both about their own actions and about the way they are treated as consumers; we should avoid collaborations designed to reduce prices, but also be willing to challenge price-fixing.





Repeating myself about the WIPO treaty

I do not usually link and re-post my own work on this site, but this situation is a little different.  I have written two columns for Library Journal’s Peer-to-Peer column about the WIPO’s successful negotiations to arrive at a treaty dealing with copyright limitations for the blind and visually impaired.  It seems odd  not to address those negotiations and the treaty that came out of them at all in this space, but there is also no reason to reiterate what is available on the Library Journal site.

So in the interests of appropriate inclusion and efficiency, here is the link to the column I wrote before a treaty had been agreed on, and here is the column released today that addresses the result of the negotiation process.  There are lots of other sources of information about the treaty, but I hope readers find these comments useful.



Parallel tracks, parallel successes

The two lawsuits currently going on that involve the scanning of books for the Google Books project, one against Google directly and the other against the HathiTrust, raise very similar issues.  In both cases, the two major issues are fair use and the posture of the plaintiffs who are bringing the cases in the first place.  The Authors Guild is now the major plaintiff in both cases; they are the only plaintiff left in the case against Google because the Association of American Publishers settled out of it, and the AG brought the case against HathiTrust by itself in the first place.

Yesterday the Second Circuit Court of Appeals issued a ruling in the Google Books case that takes an important approach to the issue of how fair use and the “standing” question (who can bring a lawsuit and in what position they stand) are related, and it reminds us of the parallel tracks along which the two cases seem to be moving.

As many will recall, the Google Books case has been going on for a very long time.  There was a complicated settlement agreement proposed back in 2009, but it was ultimately rejected by Judge Denny Chin.  Since then the AAP has gotten out of the lawsuit, and it has gone to trial with only the Authors Guild as the lead plaintiff against Google, asserting copyright infringement.  Early in that trial, Judge Chin (who is continuing to act as the trial court judge for this case even though he has since himself been appointed to the Second Circuit Appeals Court) “certified a class” for the purposes of allowing the case to be a class action lawsuit.  Because it was not at all clear that the plaintiffs in the case really do represent all authors, or even a majority of authors, Google appealed this class certification

In its July 1 decision, the Court of Appeals held that their colleague was “premature” in certifying the class.  They said that the trial court should consider the fair use issue that defendant Google had raised prior to determining class action status.  There are news reports from Reuters and the NY Times on this stage of the case.

What makes this so important is that class action certification can really be the end of a case for practical purposes.  The process of litigating a class action is so complex and expensive that class action certification is often a signal to the defendant to settle the case.  The result is that, if a class is certified, there is much less chance that a full determination about fair use will ever be made.  In this case, the fair use argument is very strong, and virtually identical issues were decided in favor of fair use at the trial level of the HathiTrust case.  So it would be very unfortunate if the Google case never got to that stage.  By fighting off the class certification, Google has won for itself a better opportunity to make that argument.  And the precedent set by this decision is important, since it tells trial courts to consider fair use before they make the potentially destructive decision about class certification.  In many cases, and the Second Circuit suggests that this may be one of them, the complexity and cost of a class action might be entirely avoided because fair use would lead to a lawsuit being dismissed before it got that far.

One interesting note is that Judge Pierre Leval was part of the Appeals Court panel that made this ruling.  Judge Leval wrote the famous law review article called “Towards a Fair Use Standard” that is the foundation of the recent stress on transformative uses in the fair use context.  Now, as part of this three judge panel, he has sent back to the trial court a case where the fair use standard he suggested is very, very applicable.  So we will see if Judge Chin takes the strong hint that he has been given by his Second Circuit colleagues (including Judge Leval and the rest of the appellate panel, as well as Judge Harold Baer, who ruled in favor of fair use in the HathiTrust case) and finally dismisses this case on fair use grounds without letting it grow into a class action.

As I said, the issue of whether or not the Authors Guild can really adequately represent the class of all authors is also very important.  Their membership is quite small – apparently less than 10,000 people – compared to all of the authors in the United States, and the interests they represent are even narrower.  They seem to focus on the need to protect every copyright for ongoing and exclusively commercial exploitation, in blissful ignorance that many, probably most, authors do not make any significant income from writing and often feel that exposure and impact are far more important incentives for authorship.

It is on this point that yesterday’s decision so clearly shows us that the Google Books and the HathiTrust lawsuits are on parallel tracks.  Late last year the trial court in the HathiTrust case made two important rulings.  The first was that the activities of the HathiTrust that had been challenged were fair use.  The second was that the Authors Guild could not assert “associational standing” to bring the case.   Now the Appeals Court has sent the Google Books case back to the trial court for consideration of the fair use issue and reconsideration of the association’s standing (in this instance, whether it is an adequate class representative).  On this second point the panel said that it did not have to decide the issue of adequate representation because a fair use decision might well moot the class action issue, but it indicated that the argument that the AG was not inadequate as a class representative “may carry some force.”  Now we might see a situation in which the Google case is resolved the same way the HathiTrust lower court case was – the activity is fair use and the Authors Guild is not a proper party.

It would be nice if the Authors Guild took this ruling as an opportunity to back out of the case.  But they have already appealed the HathiTrust verdict, and there is little reason to suppose that the AG will suddenly be seized by a fit of good sense.  So we must watch these lawsuits, brought out of a misplaced desire to force copyright to be something it is not and never was intended to be, get decided step-by-step in favor of fair use.  This latest decision, which will compel courts to consider fair use at an earlier, and potentially less devastating, point in a putative class action is, as they say, “another brick in the wall.”

Of fences and defenses

It is very common to hear people say, in a discussion of copyright, that fair use is “an affirmative defense.”  One of the amicus briefs filed in the Authors Guild’s appeal of the favorable fair use decision in their lawsuit against the HathiTrust, however, puts that common assertion into question and raises an argument worth considering.  The brief on behalf of the HathiTrust that was filed by a group of universities (Illinois, Michigan State, Minnesota, Nebraska, Northwestern, Penn State and Purdue) argues at some length that fair use is not and was not intended as an affirmative defense but is better viewed as a positive limitation on the rights held by a copyright owner. They argue, in short, that fair use is not so much a defense as it is a fence — a boundary that courts have built to prevent the exclusive rights in copyright from expanding too far. (Hat tip to Jack Bernard of the University of Michigan, who pointed this argument out to me but is not, of course, responsible for what I make of it).

To understand this argument, and to see what difference it makes, let’s start by defining an affirmative defense.  Black’s Law Dictionary tells us that an affirmative defense is “an assertion by a defendant that raises new facts and arguments that defeat the plaintiff’s claim even if all of the allegations in the complaint are true.”  When one raises an affirmative defense, one basically says that “even if I did exactly what the plaintiff says I did, I should be excused because of these additional reasons which justify my actions.”  Self-defense is a classic affirmative defense, as is duress.  In the latter case, for example, someone charged with writing a fraudulent check might say “yes, I signed that check knowing it was a fraud, but at the time I was being threatened at gunpoint if I did not do  so (i.e., I was under duress).”

It is easy to see why fair use seems like an affirmative defense; the general assumption is that a defendant in a copyright infringement lawsuit admits, when raising fair use, that they were responsible for the use being challenged, but that that use was authorized by the law under section 107 of the Copyright Act. Well-known copyright scholar William Patry takes exactly this position in a 2005 blog post, although he also adumbrates the argument that the amici universities are making in the HathiTrust brief.

The “public relations” problem with this position is that talk about affirmative defense is often used to frighten potential users of copyrighted works away from their proposed use by telling them that if the copyright holder objects, they will have to “prove” fair use, which is difficult and expensive.  The legal problem with maintaining that fair use is an affirmative defense is found in that word “prove” — the HathiTrust amici maintain that, because fair use is NOT an affirmative defense, the burden of proof shifts to the plaintiff, who should be required to prove that the use in question violates their rights.

Burden of proof is very important in most litigation.  We all know that in a criminal trial, it is the state which must prove “beyond a reasonable doubt” that the defendant committed the offense.  In a copyright infringement case, which is usually a civil trial rather than a criminal one, the standard of proof is lower — usually infringement must be proved by “a preponderance of the evidence.” Here is how the jury instructions for the federal courts in the Ninth Circuit describes this requirement:

the plaintiff contends that the defendant has infringed the plaintiff’s copyright. The plaintiff has the burden of proving by a preponderance of the evidence that the plaintiff is the owner of the copyright and that the defendant copied original elements of the copyrighted work. Preponderance of the evidence means that you must be persuaded by the evidence that it is more probably true than not true that the copyrighted work was infringed.

If fair use is an affirmative defense, the burden of proving those additional facts that would establish the defense falls on the defendant.  She has to show that her otherwise infringing use was authorized by the law.  But the HathiTrust amici argue that that is not how fair use works.  They suggest, based on language in the statute, that fair use is about establishing the plaintiff’s right in the first place, so that the burden falls on that plaintiff to show that they have any right to prevent the particular use.

This is the difference between admitting the plaintiffs’ assertions and then arguing that there was a justification for the otherwise infringing activity versus denying that plaintiffs’ basic claim that they hold the right to object to the use in the first place.  It is an argument that fair uses simply fall outside of the scope of the copyright holders authority in the first place, 0n the other side of a statutorily-defined “fence.”  Then it becomes that copyright holders’ obligation to convince the court that their rights DO reach as far as they say they do.

As I said, the HathiTrust amici assert that the language of the copyright law supports this argument.  The section that enumerates the exclusive rights in copyright is immediately followed by a series of limitations on those rights, and fair use is the first of these limits.  The fair use provision says that a fair use “is not an infringement,” “notwithstanding” the rights granted just one section earlier.  This sounds like the scope and extent of the rights are being defined.  And just one more section later the law refers to “the right of fair use,” language that further suggests that fair use is much more than a defense.  Indeed, it looks like Congress was telling us that fair use is a positive right, the existence of which defines the inherent limits of the rights given to copyright holders.

By the way, this perspective is also useful in thinking about the publisher arguments in the GSU lawsuit.  The publishers’ reply brief in that case, about which I wrote a couple of weeks ago, asserts that those who claim fair use have”the burden of demonstrating the limited nature of the unauthorized use.”  Not only is there no such requirement about fair uses being “limited” in the legislative or judicial definition of fair use, but this assertion potentially gets the burden of proof wrong.  It is the plaintiff publishers, according to this perspective, who must show that the use in question is not fair use and therefore that they are entitled to assert any control over it.

If these seven amici universities convince the Court of Appeals panel, it will make a big difference in how the arguments proceed.  Since plaintiffs must first, as everyone agrees, show that they own a right that has been infringed, this argument would mean that it was up to them to convince the panel that the use was not fair use as part of that initial showing.  But it could be even more influential on the “public relations” issue I spoke of.  If we understand fair use as a positive right that creates a boundary limiting the control of rights holders, we ought to be less afraid of exercising it.  After all, we do not fear to walk on a public sidewalk just because some landowner might scream “trespass;” we recognize that rights over land have boundaries and do not shirk from exercising our positive right to use public land.  The argument in this amicus brief points us to a similar confidence when exercising our fair use right.  While we should respect the legitimate rights held by an intellectual property holder, we should not let attempts to expand those rights beyond the boundaries set by Congress dissuade us from making fair use of materials under this public right that is equally a defining part of copyright.

Museums can get copyright right

One type of question that I get over and over again from faculty and graduate students involves copyright and images of art works held in museums.  In fact, question is probably the wrong name for these discussions; mostly I try to be sympathetic as the researcher bemoans the thicket of claims and permission costs in which they have become entangled as they undertake some project.  I recently met with one faculty member who is creating an amazing “digital humanities” project and needs to obtain, from a significant number of different museums, high-res images of works that are clearly in the public domain.  Even this author, who is both remarkably good-humored and very persistent, was confused and bemused by the Pandora’s box she had opened.

Then I saw this article about the Rijsmuseum in Amsterdam, which reminded me that even in Pandora’s box, hope remained in the bottom — some museums are bucking the trend and creating reuse-friendly policies for images of public domain works.

Whenever I am asked about the process of getting “copyright permission” from museums to use images of artworks in a new project, I start by explaining three basic principles:

  1. Many of the artworks held by museums around the world are in the public domain, either because they were created before copyright came into existence in the late 17th and early 18th centuries or because any copyright they had has expired.  And even for works that are still protected by copyright, most often the museum that owns the art work does not also hold the copyright.
  2. Even a photograph or digital scan of a public domain artwork that is created by the museum may lack copyright protection under a U.S. District Court decision that said that such “slavish” reproductions — reproductions that add nothing but attempt *just* to accurately reproduce the work — are not original enough to gain any copyright other than whatever protection the underlying work enjoys (which, if the work is public domain, is none).  This is only a District Court case, but it has never been appealed or, to my knowledge, otherwise challenged so it probably should guide us unless or until we get something more definitive.
  3. Museum claims over the use and reuse of images from their collection, even though often called and often understood as copyright claims, are really mostly a matter of contractual agreement and simple control over access to the unique works that the museum holds.  Because these works are (more or less) unique, the ability to make a reproduction can be tightly controlled and the museum can impose contractual conditions on access to make such a reproduction or on the reuse of a museum-supplied image.  These contractual obligations actually bind only the parties that agree to them, but in practice they are often passed to downstream users in the form of conditions on reuse that the original recipient feels bound to impose.

All of this is explained very elegantly and discussed in great detail in a superb article written on the topic by Kenneth Crews of Columbia University, which is available here.  It is a subject all librarians, in my opinion, should understand, so the article deserves a wide readership.  Dr. Crews points out both that many claims made by museums tend to stretch the copyright law beyond reasonable bounds AND that some of the claims for control and remuneration are supported by sound business practices and cultural policy considerations.  This is not a black or white issue, just one where more clarity and an open discussion of genuine needs and concerns can lead to better conditions for the reuse of artworks and images.

Which brings me to the Rijsmuseum.  Their decision to offer high-resolution images of many works in their collection available for free download is a startling example of the other side of this issue — there are good reasons, especially from the perspective of fundamental museum missions to make culture more accessible to the public, to take the opposite approach from that of some museums and support radical reuse.  I was struck by the reasoning behind allowing even commercial reuse of these high-res images:

If they want to have a Vermeer on their toilet paper, I’d rather have a high-quality image of Vermeer on toilet paper than a very bad reproduction.

Maybe the example chosen is not one involving high culture, but it illustrates quite dramatically that reuse of public domain art is inevitable, even for purposes we may deplore, and that the public is, in many cases, better served by access to good-quality reproductions than it is by complex contractual terms and absurd restrictions on even the most traditional practices (like sketching an artwork at the Art Institute of Chicago).  If we must chose between extremes, there is a great deal to recommend the Rijsmuseum approach.

As libraries, museums and archives work to digitize more and more of the public domain materials that they hold, it is worth considering how others will be able to use and reuse those images.  With so many digital humanities projects being pursued around the world, the thickets of permissions and use restrictions will grow evermore burdensome.  An example like the Rijsmuseum is a great counterweight to that burden, and a graphic reminder that it really does not have to be that way.  Of course, not every cultural institution can afford to make high-res reproductions available for free; fees are often essential to support the mission-driven activities of these collections.  So fees may be needed for the provision of high-res images, as may some restrictions on further dissemination of those images. But many of the restrictions and fees we often encounter cannot be justified in this way.  So if we start from the very open policy of the Rijsmuseum and then apply only those restrictions that have sound, policy-based foundations, we can arrive at much more supportive approaches to reuse and new creativity.  The policy adopted by the Cornell University Library’s digital collections is, in my opinion, a model of such a moderate and sensible approach.

For those beginning to explore the uncharted territory of the digital humanities, permission fees and reuse restrictions will probably continue to create nearly unnavigable thickets of complication.  But with these few counter-examples, we can see that a better approach is possible.  Libraries and the digital archives associated with them need to model the best practices that we can in hopes that the most absurd kinds of copyright overreaching will become less common and rational policies based on an accurate assertion of rights and a realistic assessment of needs will begin to dominate.


Better than joining the CHORUS

Last week we saw two proposals about how the various federal agencies that fund research might implement the recent directive from the White House Office of Science and Technology Policy that mandates public access to the products of funded research.  A group of publishers unveiled (sort of) a proposal they call CHORUS, while the Association of American Universities, the Association of Research Libraries and the Association of Public and Land-grant Universities collaborated on a different proposal, referred to as SHARE.

The publishers proposal — the acronym stands for Clearing House for the Open Research of the United States — is described in glowing terms on the Scholarly Kitchen website and with a bit more restraint by the Chronicle of Higher Education.  The proposal from the education associations, dubbed Shared Access Research Ecosystem, is also described by the Chronicle and is the subject of a detailed draft proposal that can be found here.

For myself, I would rather SHARE than join the CHORUS, for a number of reasons.

First, I think CHORUS is being touted, at least in what I have read, by comparing it to a straw man.  Its principle virtue seems to be that it would not cost the government as much as setting up lots of government-run repositories, clones of PubMed Central.  But it is not clear that that option is being seriously suggested by anyone.  Certainly many of us encouraged the agencies to look at the benefits of PMC for inspiration and not sacrifice those benefits in their own plans, but that does not mean that each agency must “reinvent the wheel,” no matter how successful that wheel has been.  So the principle virtue of CHORUS seems to be that it does not do what no one is suggesting be done.

The most important thing to understand about CHORUS is that it is a dark archive.  The research papers in CHORUS would not be directly accessible to anyone; they would be “illuminated” only if a “trigger event” occurred.  Routine access would, instead, be provided on the proprietary platforms of each publisher, while the CHORUS site would simply collect metadata about the openly-accessible articles and point researchers to the specific publisher platforms.

It seems to me that the CHORUS proposal is “disabled” from the start, by which I mean that it lacks three fundamental abilities.  CHORUS, at least based on the descriptions we have seen, lacks find-ability, useability and interoperability.

Perhaps the most troubling remark in the description offered on the Scholarly Kitchen blog is that “Users can search and discover papers directly from or via any integrated agency site.”  Does this mean that even the collected metadata would not be available to Google?  We know how few researchers “walk through the front door” of our research tools, so limiting discovery to the CHORUS portal or “integrated agency sites” would make these open access papers virtually invisible (which, one suspects, is the point).  As things stand now, open access papers which reside on proprietary publisher platforms are difficult to find because there is no consistency in how they can be discovered.  That is the principal reason so many COPE fund institutions will not support so-called “hybrid” open access publishing that makes a few articles open on an otherwise toll-access site.  It does not seem that CHORUS would change that unfortunate situation at all, which is probably why Heather Joseph of SPARC calls CHORUS “a restatement of the status quo.”  The public would gain very little, since the major goal of the proposal is for the publishers to cling tightly to control over the research papers that have been entrusted with.

Another ability that CHORUS would lack is useability, since as far as we know, all that a researcher or other user could do with these papers is read them.  It would not, of course, facilitate sharing, teaching or reuse, even those these abilities are vital to improving the speed and quality of research in the United States.  And then there is interoperability.  If the geographically desperate archives are genuinely federated, searches across all of them, even keyword searches that are not dependent on the metadata created for each article, would be possible.  So would text and data mining across a large corpus of works.  We already know that such interoperability creates tremendous new opportunities for expanded research, collaboration, and previously impossible discoveries.  But there is no reason to believe that CHORUS would support interoperability, since the various publishers have a strong competitive interest in not allowing cross-platform activities.  Research and education, however, not only do not benefit from that competition, but are actively “disabled” by it.

On the other hand, the proposal from the universities and their libraries is for a genuinely federated system of university-based repositories.  Those repositories already exist, so if we are going to make a cost argument, it really favors SHARE.  And these repositories, unlike the publisher platforms, have a strong interest in facilitating discovery.  Also, the detailed proposal offered by these groups addresses text and data mining, semantic data, APIs for research and linked data.  All of these things make university-based research better, while they pose threats to the commercial publishers who have designed CHORUS to protect themselves, not to benefit research or the public.  So all the incentives line up between the public interest and the university-based SHARE system.

If the OSTP and the research-funding agencies take seriously all of the opportunities that were described in the comments they have solicited over the past year, it will be very obvious to them that CHORUS is singing flat, while it would be good to SHARE, just as our parents always told us.

Time for breakfast at the 11th Circuit

In Alice in Wonderland, the White Queen chides Alice about her professed inability to believe unbelievable things, suggesting that it is just a matter of practice.  Because of her own discipline in practicing this art, the Queen is able to assure Alice that “sometimes I’ve believed as many as six impossible things before breakfast.”  Lawyers, of course, have to be skilled at making arguments even for implausible positions, but the reply brief filed in the GSU copyright infringement appeal last Monday would challenge even the White Queen’s gullibility.

In this brief the plaintiff publishers are attempting to respond to the arguments made in the last round of filings by Defendant Georgia State University and the “friends of the court” who argued on its behalf.  This is essentially their last shot at convincing the judges that they should reverse the decision of the trial court that largely ruled in favor of fair use.  Unfortunately for the publishers, it is not very convincing.

The core argument of this brief is one the publishers have been making, unsuccessfully, throughout the case — that the so-called “course pack” cases from two decades ago are absolutely dispositive in this case and render incorrect all of the fair use analysis done by Judge Evans in her comprehensive ruling at trial.  Some of this argument is based on misdirection, wherein the publishers argue that the judge was treating digital formats differently from print.  She did no such thing, of course; she distinguished the situation before her from the course pack cases because the facts were different.

The publisher  do address the distinction more directly, however, when they argue that GSU’s non-profit status is (for obscure reasons) not relevant to the fair use analysis.  Of course, the course pack cases explicitly rejected  fair use precisely because the defendants were commercial entities who were selling the course packs to students.  In the GSU case, on the other hand, the university is non-profit and the readings are made available at no charge.  It is absurd to say that this difference doesn’t matter.  In fact, at least one publisher I have dealt with granted gratis permission for an excerpt on e-reserves only after I assured them that no charge was made to students.  So even publishers understood that this was a crucial fact in determining the appropriateness of unlicensed uses in academia, before their lawyers told them they had better deny it.

From this basic assertion that the matter was already settled by different courts back in the 90’s, the publishers proceed to explain that the trial court was wrong on every one of the four fair use factors.  Much of the argument is very strange, twisting back on itself in an effort to obscure the clear and cogent path that Judge Evans used to arrive at her original ruling.  Its overall effect, however, is to emphasize what a sensible, careful analysis that trial court opinion offers.

It is, perhaps, worth looking at some of the general statements made in the opening summary of the brief’s argument to find some clues about how this analysis went so badly wrong.

First, of course, is this assertion that fair use is not supposed to favor non-profit educational uses.  We have heard this complaint many times over the long course of this cases, but here is last week’s version of it:

To sanction GSU’s practices under the rubric of fair use on the grounds urged by Appellees — GSU’s non-profit status and the importance of Appellants’ work as teaching tools — would undermine fundamental tenets of copyright law by effectively dedicating the works of scholarly publishers to the public domain. (emphasis added)

This is truly a staggering bit of argumentation.  First, a non-profit purpose is specifically mentioned as favoring fair use in the text of section 107 itself, so it is hard to see how it could NOT be an appropriate part of a fair use argument.  And a quick look at all of the exemplary purposes for fair use that are also mentioned in section 107 should convince any unbiased reader that social utility — the importance of education, for example — is the fundamental purpose for which fair use was created.  Indeed, courts have told us this over and over.  So the rubric suggested as inadequate is, in fact, a nice, concise statement of why the original ruling in this case was correct.  And then, the grotesque hyperbole that follows illustrates for us that the lawyers writing this brief know how far out on a limb they have climbed.  To say that a fair use finding effectively dedicates a work to the public domain is simply absurd.  I do not think the publishers could cite a single instance where fair use has had that effect, where the original became unmarketable because someone made a fair use of a portion of that work. When movie companies challenged the video recorder, for example, by saying that it would destroy the movie industry, they were making a parallel, and equally silly, claim; home video recorders, of course, did not harm the market for movies at all, even though entire films could be recorded under the Supreme Courts ruling on fair use.

And of course, we should not ignore that phrase “the works of scholarly publishers.”  Throughout this brief the publishers are not sure whether they are arguing for their own profits or on behalf of authors.  Sometime they throw the authors in to their argument, but mostly they want the court to believe that they, the publishers, actually created the works in question ex nihilo.  But none of these works were created by publishers, and their argument collapses when we realize that the fees they are seeking have virtually no role at all in incentivizing scholarly creation, which is what copyright is for. More about this in a minute.

But before we leave fair use proper, we should also examine this gem: “Fair use … imposes on the proponent of fair use the burden of demonstrating the limited nature of the unauthorized use …”  There is no such requirement in the text of the law, of course, and the Sony case about VCRs illustrates, at the highest level of U.S. legal precedent, that simply because a practice is widespread does not prevent it from being a fair use.

To return to the issue of incentives, let’s look at one more passage from the preliminary statement in this brief:

This blatant end-run of copyright law not only threatens to undermine the established legal norms that have long governed course-pack copying, but it comes at a time when Appellants and other academic publishers are investing heavily in publishing and delivering content in digital form.  These publishers cannot hope to recoup their investment if institutions like GSU are permitted to make exact digital copies of their works … without compensation to the works’ authors and publishers.

The first part of this quote is, as we have already seen, irrelevant; a fair use ruling in the GSU case would not alter the precedent created by the course pack cases, when those cases are properly understood.  But the second part is also interesting, and it echos an earlier statement, quoted from one of those course pack cases, about how publishers have “risked their capital to achieve dissemination.”  By way of reply, we should note first that dissemination is quite different now than it was nearly twenty years ago when that case was decided.  Many  Gold OA journals and other forms of digital writing can be distributed with much less expense than these traditional publishing houses claim is required.  So we are entitled to ask if it is being done efficiently by them; whether that capital the Court is asked to protect is being invested wisely.  And in any case, copyright law is not designed to support any particular business model, but to give creators more reason to create.

Given these statements, the Appeals Court would be justified, I think, in asking the plaintiffs to open the books and show how much investment is being made, how it is being spent, and how dependent that investment really is on permission fees.  The trial judge did not think those fees mattered all that much to publisher revenue.  If the plaintiffs continue to assert that their business will be ruined by fair use, they should be obligated to prove it, and also to show that the threat is systemic and not just the result of poor management.

Finally, it is worth noting that authors have now appeared in the argument.  Whereas earlier the issue was “the works of scholarly publishers,” now, in classical fashion, the authors have been belatedly recalled and tossed in to the mix.  Publishers have made pathos-filled appeals on behalf of starving authors in order to justify their own businesses since copyright began.  But academic authors are different, so this reflexive reference to authors should not go unchallenged.  In response to this argument, there are two questions the Court of Appeals should examine closely.  First, how much money actually makes its way into the hands of authors, rather than the publishers, from permission fees paid to the Copyright Clearance Center?  Second, what role, if any, do these fees play in creating the incentive that academic authors have to create scholarly monographs, recognizing that all of the books in question in this lawsuit are such monographs, rather than textbooks.  These questions are perfectly within the competence of the Court of Appeals, both because they are relevant to the second fair use factor and because the publishers’ reply brief has put them at issue.

Th Eleventh Circuit Court of Appeals is asked to swallow lots of unbelievable things in this reply brief.  Now is the time for them to sit down at the metaphorical breakfast table (harkening back to the White Queen) and demand substantive information from the plaintiffs before they finish this meal.

Finding out who your friends are

The period for filing amicus curiae (“friend of the court”) briefs in the appellate phase of the Georgia State University copyright and fair use case has closed, so it is a good time to take stock of who has weighed in on each side, and what their arguments look like.  Even though this will be a long post, it is still only a very sketchy summary of all of the arguments being made.

I have already written about some of the arguments made in support of the publishers who brought the original lawsuit and are pursuing this appeal after having lost in the district court.  Notably, we have discussed the strange argument made, essentially on behalf of the Copyright Clearance Center, which is helping to organize and finance this quixotic lawsuit, by two former Registrars of Copyright that fair use was never intended to favor non-profit educational uses.  We also noted the decision by the U.S. Justice Department NOT to get involved on behalf of the publishers.

When the briefs supporting the publishers are examined, the striking fact, to me, is that no one supports their position who does not stand to gain direct financial benefit if it is upheld.  No one is arguing that giving more money to the intermediaries who are such a drain on college and university budgets is a good idea in itself, or would be a benefit for scholarship.  The supporting groups like the American Association of University Presses (whose participation on this side is especially tragic), the Authors Guild and the “Copyright Alliance” are all looking to line their own pockets by supporting a reversal of the trial court.  Not surprising really, nor an evil intent in the abstract, but something that is well beyond the purpose and intent of the copyright law.  This is prospecting for gold on the part of the publishers, and they are trying to do it on public property.

I was interested to see that one of the parties on the amicus brief filed by the Author’s Guild was a group called the “Text and Academic Authors Association,” of which I had never heard.  Was this really an group of academic authors opposed to fair use on campus?  Well, only sort of.  The website of this oddly named group (all authors write text; I think they mean “textbook”) shows that the majority of their leadership council is made up of non-academics or retired professors, who presumably no longer need to rely on fair use for good teaching.  And the strange perspective of the group can best be judged by this article arguing that textbook prices are justified and are not too high to interfere with quality education, a perspective thoroughly debunked by nearly every study as well as by day-to-day experiences on campus.  Indeed, the only sensible way to read the article is to recognize that every “myth” it undertakes to refute represents a demonstrable fact. More on this shortly.

So now lets look at the friends of GSU and some of the arguments they are making.  In addition to the brief filed by GSU itself, there are at least five amici groups –  The Library Copyright Alliance filed a brief on behalf of the ALA, the ACRL, and the ARL, and was joined in that brief by the Electronic Frontier Foundation.  There was a joint brief from the American Council on Education, the Association of American Universities and three other higher education groups, one by the American Association of University Professors, and another from an independent group of academic authors and legal scholars.  Finally, ASERL, the Association of Southeastern Reasearch Libraries, which is the nation’s largest regional research library consortium, filed its own brief (which — full disclosure — I had a very small role in assisting with).

Note how clearly these friends of the court break down between those arguing for their own private gain versus those trying to uphold a public good.  Given all the rhetoric about copyright as primarily intended to benefit the public interest in hundreds of precedents, the 11th Circuit Court of Appeals cannot help, one would think, but notice this disparity.

Let’s look at some of the arguments from a few of these documents.

In the Appellees’ own brief (that’s Georgia State) we find the fundamental points that are elaborated and supported by all of the amici.  Primarily, the Appellees argue that all four of the fair use factors weigh more or less heavily in favor of fair use for short excerpts provided as course readings and accessible only by students in a particular class.  This argument is supported in the brief from ACE and the other university groups.  The GSU discussion is especially interesting on the fourth fair use factor, impact on the market.  First, it makes the point that the publishers argument about how the “easy” licensing that is supposedly available should make this factor count against fair use is circular.  As many courts have recognized, this argument would undermine virtually all fair use, which Congress could not have intended (although the publishers do), and insofar as Judge Evans accepted it in the trial court, she erred.  Then the Appellees go on to point out that that licensing market actually is neither easy nor comprehensive.  Fair use continues to be needed in this area even if one applies a market failure standard for fair use, because the “market” for licensing, and even the CCC’s blanket campus license, fail higher education far too often.  As we will see, other amici also support this point.

Two other points made in the Appellees’ brief are worth noting.  First, they argue, as I have in the past, that Judge Evans’ work-by-work analysis of fair use was the appropriate approach to the case, dictated both by the nature of fair use itself and by higher court precedents.  Second, they show that the publishers’ reliance on the principle of “media neutrality” is just a silly distraction (my words, not those in the brief).  Judge Evans simply did not apply fair use any differently in the digital realm than it would be applied to print works; she distinguished some cases that involved print, but she did so for much better reasons, reasons the publishers would like the 11th Circuit to overlook.

The Library Copyright Alliance also demonstrates, in their brief, that all four fair use factors actually favor Georgia State’s fair use argument, supporting from a slightly different perspective the argument made by GSU and by the multiple college and university associations.  The LCA goes on to argue that this fair use argument is widely-recognized in the educational community, and that GSU’s policy on copyright and fair use is consistent with widespread practices through education.  One result of that fact is a clear demonstration that upholding the trial court’s finding of fair use would not have any negative effect on scholarship.  Colleges and universities have relied on fair use in this way, even in the pre-digital world, for a long time.  Yet scholars continue to produce scholarly works at an ever greater rate, undaunted by fair uses made of those works (and they continue, unfortunately, to transfer copyright in those works to these irresponsible publishers).  Fair use supports scholarship, it does not undermine it.  And the publishers have not discovered any “new” threat to scholarly production that must be averted; they simply decided that they needed and deserved more money from academic budgets.

The LCA also develops the point about the failure of the licensing market for electronic reserves and other course readings.  A reversal in this appeal would not cause that market to grow.  It would not, that is, actually result in more money in the system to support scholarship, even if we assume that money in publishers’ coffers did support scholarship.  In fact, if the trial court’s findings of fair use were reversed, education would be harmed because fewer resources would be available for teaching, since library and university budgets cannot support the astronomical fees that publishers want to charge for licensing.  The overall effect on the production of scholarly work would be negative, which undermines the fundamental purpose of copyright law in the U.S.

The ASERL brief develops this point a bit further, partly by pointing out that the licensing market touted so highly by publishers is already harming the ability of colleges and universities to teach students.  On every campus it is easy to find stories about how the inability to get permission, either because of the prohibitive cost of licensing or because no license for the particular work was available, forced a teacher to changed his or her plans and resort to “plan B” pedagogy.  Most librarians have had to assist such faculty to find other, less optimal, resources in those situations; it is something we do well, but wish we didn’t need to do.

Related to this point is the discussion in the ASERL brief about the cost of higher education, and the role of publishers and licensing in those costs.  One statistic the brief cites shows that textbook prices have actually risen much faster in the past 30 years than tuition and fees have, which is a telling refutation of the argument made by the TAA in the article mentioned above.  And the structure of digital licensing from the CCC actually contributes to accelerating costs, because the CCC will refund the licensing fees for printed course packs that are not sold, but requires that e-reserve materials be licensed for each student in the class regardless of how many times an excerpt is actually accessed or even whether or not it is used by anyone.  Where, by the way, is their concern for “media neutrality” in that pricing policy?

Finally, I want to end this long post by quoting a passage from ASERL’s amicus brief that deserves to be remembered by everyone thinking about fair use.  In discussing the mistaken assertion by the publishers that all fair uses must be transformative and that, in any case, fair use should be extremely limited in application, ASERL reminds the Court of Appeals that, on the contrary, fair use is an integral and indispensable part of the very structure of U.S. copyright law, without which that law would arguably be unconstitutional:

Fair use is not a rarely-used “exception” to a copyright holder’s rights that should only be applied “on occasion.” [citing arguments from Appellants brief] Rather, fair use is viewed by the courts as “necessary to fulfill copyright’s very purpose.” [citing the Supreme Court in the Campbell case]… Fair use is necessary, in part, because “[t]he primary objective of copyright is not to reward the labors of authors, but [t]o promote the ‘Progress of Science'”… [citing the Constitution and the Supreme Court in the Feist case].  And for that reason, following direction from Article III of the Constitution, the District Court was correct to apply fair use “in a way that promotes the dissemination the knowledge, and not simply its creation.” [quoting Judge Evans and again citing the Supreme Court].

All of the arguments that support BOTH the creation and dissemination of knowledge line up on the side of affirming the trial court in this case.  It ought to be an easy decision for the 11th Circuit Court of Appeals.  And it is well past time for scholars and universities to rebel against so-called “scholarly” publishers who try to use the courts to undermine the best interests of research, teaching and learning in a futile attempt to improve their bottom line.

Discussions about the changing world of scholarly communications and copyright