Another view on GSU and anti-trust

I seldom write a post that is just a link to someone else’s work, but I am afraid that non-specialists, especially in the U.S., may not regularly read the blog of Canadian law professor Ariel Katz.  And this post about the GSU case deserves widespread attention.  Katz does a wonderful job of pointing us to the real motive in the lawsuit — to force colleges and universities to purchase licenses with the Copyright Clearance Center.  This, he suggests, is an alternative to each publisher raising its own prices even further than they already have, and he sees in such an attempt a form of collusion amongst publishers to forcibly fix prices at a level higher than the competitive market, left to its own devices without judicial intervention, would bear. Katz’s conclusion is that the Department of Justice, which suggested that it might intervene in the case on the side of the publishers, should really intervene on the side of the defendant in order to prevent what Katz argues is an illegal attempt to fix prices.  He neatly compares the CCC to the so-called “patent pools” which were dismantled years ago using anti-trust laws, and  to the DoJ’s own recent efforts to prevent price-fixing in the eBook market.  For consistency, he argues, the DoJ should pursue the same path against the efforts that publishers are making in the GSU lawsuit.

GSU and Sony

Another day, another silly brief filed in support of the plaintiff publishers in the Georgia State copyright infringement appeal.  This one comes from the American Association of University Presses (AAUP).   I wish it were not the case, but I am past being shocked that university presses are so anxious to support a lawsuit against universities, and one that, if successful, would significantly increases costs for students and/or diminish the funds available to buy materials from university presses.  The short-sighted thirst for more dollars from university budgets and an overall blindness to the big-picture best interests of higher education has long been the fundamental characteristic of this lawsuit.

Many of the arguments in the AAUP brief are familiar from the other briefs.  It should not matter that the copying complained of was non-commercial and for educational purposes.  The course pack cases (which all involved commercial intermediaries who made the copies and sold the course packs) are perfect analogies to the present situation in spite of the factual differences.  The judge also erred, apparently, by inquiring into the factual character of each challenged use of an excerpt instead of recognizing that the publishers just don’t like fair use, except when they benefit from it, so factual inquiries are irrelevant.  All of this we have heard before, and I am tired of writing about it.

But while reading this brief, and the press release the AAUP issued about it, it struck me that there are things we can learn about this case by making comparisons to the famous Supreme Court case of Sony v. Universal Pictures, in which the Court decided that consumers making temporary copies of television broadcasts on the “new” video recording devices then being market was fair use (and therefore did not find Sony guilty of contributory infringement for market the devices).  One argument in particular made by the AAUP reminded me of Sony and the lesson we should learn from it.

We have frequently heard the complaint that the judge missed the forest for the trees in the GSU case.  That is, she focused too much on the specific excerpts that were being challenged and failed to appreciate the scope of the harm that the overall practice of e-reserves would allegedly do to publishers.  In the AAUP brief, this argument appears as an objection to the way Judge Evans analyzed market harm, the fourth fair use factor.  The complaint is that she looked at figures for permission income for each book in question, which she found to be “negligible” in most cases, and did not look more broadly at the overall importance of permission income generally to university presses.  In their press release the AAUP calls Judge Evans’ analysis “niggling.”

So now let’s consider Sony.  In that case, the plaintiffs were faced with a much more massive threat of unauthorized copying.  Entire works were being copied, rather than just 10% or a single chapter of each work.  And the potential market harm was even greater, since the TV and movie studios were afraid that there advertising revenues would drop sharply if millions of Americans began taping their favorite shows rather than watching them when the executives and their advertisers expected them to.  Surely fair use could not sanction such a massive and pervasive threat.  And yet it did.  The Court did not even do the level of financial analysis that Judge Evans did in the GSU case.  Justice Stevens, in Sony, simply considered the overall situation — individual consumers who used the VCR to “time-shift” for more convenient viewing — and, finding it was fair use, dismissed wholesale the concern for the alleged market harm that would occur if each of those individual consumers each exercised this fair use right.  If Judge Evans was niggling in her assessment of market harm, the Supreme Court was downright uninterested in Sony.

What we learn from this analysis is that fair use represents a boundary on the rights held by a copyright owner.  Market harm is a factor to consider, but when a use is clearly fair use — as these uses of 10% or less of a work were found to be, even in some instances where the Judge felt that market harm factor counted against the fair use argument — the assertion that one could still have squeezed some more money out of those uses will not be heard.  After all, I could make some money by charging pedestrians to walk on the sidewalk that crosses my residential property, but society has simply decided that I will not be allowed to do that; the easement for a public right of way that allows sidewalks functions as a boundary, of a sort, on my property right.  And in any case, the assertion that a license fee might have been earned, even when the rights holder is not in fact collecting such a fee or depending on it, could always be used to undermine fair use; many courts have recognized this circularity and refused to let it be determinative of fair use questions.

The confusion that reigns when one is swept away in this whirlpool of circularity is nicely illustrated by this howler for the AAUP brief:

Further, one of the key reasons that permissions income is low is that some universities have failed to pay required permissions fees for their electronic coursepacks. Publishers should certainly not be penalized because of the universities’ failure to pay them the permissions to which they are entitled by law.

Neat, isn’t it?  The small amount of permission income that we actually get, and its consequent minor impact on our business, should not be considered in the fair use analysis because it would be higher if it weren’t for this pesky fair use thing.  We could make more money without fair use, and therefore that money should be taken into account when deciding whether or not something is fair use.  A truly bizarre argument that is only possible when one fails to recognize that all property rights, including rights over intellectual property, have to have boundaries.

As these briefs have been filed, and the weakness of the plaintiffs’ arguments on appeal have been revealed, I have gained new respect for the careful and thorough nature of Judge Evans’ original decision.  I do not entirely agree with her on every point, but she did her job very well.  The appeal, it seems to me, is looking more and more desperate.

That reflection leads me to end this post on a different, but related, topic.  In a recent article about a meeting of the the Professional and Scholarly Publishing Division of the Association of American Publishers, Blaise Simqu, who is President and CEO of Sage Publishing, one of the GSU plaintiffs, is quoted as saying this in a speech:

Publishers are, for the first time, having to care about the end user, and that’s a huge cultural shift

Libraries represent and serve a significant portion of Sage’s end users, and the statement that publishers would like to know more about us is good news.  It often feels like publishers think of libraries as massive infringement factories, full of irresponsible pirates who are just waiting for a chance to digitize everything and give it away for free on the Internet.  In fact, it is usually the library on a college or university campus that is teaching and advocating for responsible copyright practices.  And our digitization decisions are made very carefully, partly out of respect for copyright and partly because the process of digitization and online access is costly.  I think we would like very much to sit down with Mr. Simqu (I have actually had that pleasure) and his counterparts to talk about how we see our mission and why we take the positions about copyright that we do.  But there is a huge obstacle in the way of such frank and open discussions, in the shape of the ongoing lawsuit against Georgia State.  If Mr Simqu now realizes that he needs to care about libraries, a great first step would be to drop this appeal.


The view from the other side of the revolving door

PREFACE — On Friday morning I wrote two blog posts.  One, about whether libraries should stop buying materials from the publishers that are suing Georgia State, I posted right away.  The other, about the amicus brief filed in that case by two former Registrars of Copyright, I saved and intended to post today.  But yesterday I discovered that Mike Masnick at TechDirt had posted his own wonderful column on the same subject.  I never mind being “scooped” because these are important issues and more discussion is always better than less.  But in this case I realized that Mike had said quiet well everything I had planned to say.  I decided to post my comments anyway in hopes of reaching an even broader audience, but interested readers should follow the link to Mike’s post first.  What follows below is only for comparison or for the entertainment of the truly dedicated.

In an earlier post about the Georgia State University e-reserves case, I mentioned the unfortunate revolving door that seems to exist between the Copyright Office and other executive-branch IP advisers and the entertainment industries.  Many officials who advise the government on copyright policy are former executives or lawyers for big media, which results, inevitably, in a very one-sided view of the issues.

A recent “friend of the court” brief filed in the GSU case has provided a very relevant and troubling look at what the world looks like on the other side of that revolving door.  It was filed by two former Registrars of Copyright, Mary Beth Peters and Ralph Oman, in support of the publishers who are suing Georgia State, arguing that the judge in the trial court was pretty thoroughly wrong in her analysis, which found that a large majority of the excerpts challenged as potential copyright infringement were, in fact, fair use.

There is really very little in the argument made in the brief that need detain us for long. Its principal contention is that Congress never intended fair use to be used to give broad support to non-commercial educational uses. Basically, they say the court erred by giving too much weight to the non-commercial educational nature of the use that the publishers are challenging.  To make this unconvincing argument, they resort to lots of arguments that concede that the law appears to say something, then assert that its apparent meaning is not really what was meant at all.  They resort to legislative history to show that Congress rejected the idea of a specific exception for educational use, which is quite true, and try to claim, from that fact, that fair use cannot be seen as a broadly-inclusive exception for education.  Of course, the opposite argument is more plausible, that Congress rejected the specific exception precisely because they thought fair use was the better way to accomplish the same purpose.  And legislative history, as any law student knows, is only useful in statutory interpretation when the plain language of the law is ambiguous.  Since five of the six paradigmatic purposes in section 107 are educational functions, including “multiple copies for classroom use,” and since the section specifically mentions “non-profit educational use” as a key to the first factor analysis, the language seems pretty unambiguous.  So the desperate resort to a twisted view of the legislative history would seem to be unavailing.  Likewise when they argue the the Supreme Court, in the Campbell case, required that only transformative uses be considered fair; they acknowledge that the Court explicitly said that the most obvious exception to this analysis was those “multiple copies for classroom use,” but try to argue that the Court really did not mean it.

The goal of these contortions is to assert that the only proper analogies for the GSU case are the “course pack” cases that ruled that commercial intermediaries must pay licensing fees when they make course packs at the request of faculty members and sell those course packs to students.  The two former registrars want to argue, implausibly, that the distinction between that situation and a wholly non-commercial situation where there is no profit being made, no charge to students, and no commercial intermediary is irrelevant.

What is most interesting about the brief, however, is that the two former registrars, when they make the required “statement of interest” telling the court why they are approaching it to render an opinion on the issue, do not see fit to mention that one of them is a current board member of the Copyright Clearance Center, and the other a former member of that same board.  The CCC, of course, is helping to fund the lawsuit and is probably the single entity that has the most to gain, financially, if the Appeals Court reversed the lower court’s decision.  Presumably because the CCC is not actually a party to the case, Peters and Oman are not required, I imagine, to disclose their relationship with it.  They do reveal, in a section called “Corporate Disclosure Statement,” that the costs of preparing the brief were underwritten by major publishers like Elsevier and John Wiley, but nowhere do they state that they have or have had compensated positions (I presume) on the CCC board.

This is precisely the revolving door that troubles me, and the skewed perspective represented by this brief confirms my worst fears, that the public interest gets lost in the back and forth employment between industry and the Copyright Office.

A vexing question

I think it is time we talked about a difficult and sensitive issue.  I have been asked the question over and over again during the past few years, and I recently saw it discussed on an electronic list.  Should libraries stop buying materials from the publishers who are suing Georgia State University over electronic reserves?  Numerous librarians have asked me since the case began if they could protect the environment for research and teaching by refusing to buy materials sold by Oxford University Press, Cambridge University Press and Sage Publishing.  Another version of this question that I have also heard is whether or not libraries should try to avoid doing business with the Copyright Clearance Center, which is helping to finance the lawsuit, either by restricting e-reserves to portions within the trial court’s definition of fair use or by insisting on dealing directly with the publisher of the work, not the CCC.

I say this is a difficult and sensitive issue because any attempt to organize a movement along these lines raises worries about violations of anti-trust laws.  I have to say immediately that I am NOT an expert on anti-trust, and I frankly do not know where the boundaries lie.  I do know that organized boycotts that attempt to force prices down are problematic; anti-trust law is very concerned to protect the role of the competitive market in pricing, so organized movements to reduce prices are quite likely, I believe, to be considered “combinations in restraint of trade.”  It is less clear to me what consumers can do when they object to a business practice of a company, rather than price.  There have been apparently legal boycotts against retailers based on their labor relations practices; this article, for instance, refers to a call for such a boycott by a former Clinton administration cabinet secretary, who apparently did not get into trouble.  Where the line is between price boycotts, which I think are likely to be illegal, and permissible boycotts over business practices, I do not know.

But there is another, more fundamental reason why I do not think libraries can or should organize over this issue.  Library buying decisions are mission-driven and must be made locally.  For some schools, it may be possible to decide not to buy Oxford, Cambridge and Sage titles because of the lawsuit without compromising their mission to serve teaching and research on their campuses.  Other schools would find that to be an intolerable burden on their ability to facilitate education.  It depends on the needs of a campus and is probably a conversation that each library should have with its own community.

I want to emphasis this again.  The reason we are so disturbed by this unprecedented attack on higher education from academic publishers is precisely because it threatens to undermine our core mission.  It would be a mistake to undermine that mission ourselves just because we are so angry at those publishers.  So this is what I tell librarians who ask me this question:  If you believe you can refuse to buy from these publishers without harming your fundamental mission, or if you have the support of your faculty, then I think you have made a courageous decision that I admire.  But if you are considering a unilateral decision without consultation with the teachers, students and researchers in you own community, then I think you have more work to do.

The conversations I am advocating here could have a different effect as well.  After all, this deplorable lawsuit is not a “library problem,” it is an academic problem; an issue that needs to be addressed by the higher education community.  There were, remember, more faculty members called to testify at the trial in 2011 than there were librarians.  And it is our faculty members who supply, for free, the content that these publishers publish and the reviewing work that assures its quality. To my knowledge there is nothing in the law that prevents faculty authors from deciding to publish in and review for different publishers instead of those who are attacking basic scholarly practices.  A large group of mathematicians and others made such a pledge some time ago to withhold their scholarship and their labor from publishing giant Elsevier, a move that garnered a great deal of publicity to their complaints and made a real difference on the public policy front.  I would be delighted to see librarians and faculty authors on campuses across the US have a similar conversation about how decisions about where to publish or review get made, and whether some decisions are better for the overall scholarly environment than others.

Law and politics in the GSU case

Last week we saw the first real flurry of activity reported in the publisher appeal of the Georgia State University fair use victory.  The news items and filings call our attention to both the legal and the political aspects of the appeal.

Starting with the law, over the weekend I gave the publishers’ Appellants Brief a preliminary examination, and want to highlight four points from that brief that the library community needs to be aware of and to know how to refute.

The most fundamental part of the publishers’ argument is the analogy between the practice of e-reserves at Georgia State and the cases that were decided in the 1990s regarding printed course packs.  At trial, Judge Evans rejected this analogy for a good reason that the publishers largely ignore.  They assert that the Judge impermissibly distinguished print from digital “course packs” and thereby violated the principle that copyright law requires “media neutrality.”  It is quite true that courts often tell us that copyright should be technologically neutral, although that is by no means a hard and fast rule — the fact that there is a special provision in the law itself regarding Digital Audio Tape proves that Congress itself is not really dedicated to “media neutrality.”

But of course the real problem with this argument is that it entirely misses the point of the distinction Judge Evans drew.  She simply did not decide to treat digital materials differently from print; she quite properly treated a non-commercial use differently from a commercial use in the fair use analysis.  The publishers want to throw sand in the Appeals Court’s eyes here by distracting them from the correct fair use analysis, which looks at specific circumstances.  In this case, there was no commercial intermediary for the e-reserves, but there was for the course packs involved in the cases the publishers cite.  Fundamental difference in facts equals different result on fair use, and no error on the part of the trial judge.  Instead, a persistent and probably willful failure to understand basic fair use law on the part of publishers.

A second argument that is key to the publishers’ brief is that only transformative uses can be fair use.  Judge Evans specifically found that the e-reserves at GSU were not transformative, and that is a point that the Appeals Court should re-examine carefully.  But even if that is affirmed on appeal, it does not rule out fair use.  Again, a complete reading of Judge Evans’ ruling shows that she got the fair use point exactly right — a use does not have to be transformative in order to be fair use.

When the Supreme Court re-calibrated the fair use analysis to focus on transformativeness in Campbell v. Acuff-Rose Music, they made this point explicitly, noting in a footnote that some uses could be fair without being transformative.  The publishers acknowledge that Judge Evans cited this footnote, but go on to argue, incredibly, that there is no justification for this contention in the statute, even though they recognize that the statue gives as one of its paradigmatic examples of fair use “multiple copies for classroom use.”  They still argue that Judge Evans should have given great weight to the alleged non-transformativeness of the use, apparently feeling that Congress did not intend the plain sense of that language about multiple copies for classroom use, or that it somehow was only sanctioning transformative multiple copies for teaching (a contention that does not even make linguistic sense).  It is absurd, but it shows how desperately hard it is to undermine the careful work Judge Evans did and how completely the publishers believe that the law is designed to serve their needs and only their needs.

Two other legal points before we turn to politics.  First, the publishers insist strenuously on the 1000 word limit for classroom copying that comes from the 1976 Guidelines on that topic, and which Judge Evans rejected.  They make no mention of the 10% standard from those guidelines, which the Judge did adopt, because the language of the Guidelines is “whichever is less.”  It is precisely that language, of course, that makes the Guidelines “impractical and unnecessary,” as Judge Evans said, and why they were never agreed to by most higher education groups.  Second, the plaintiff’s brief asserts that Judge Evans erred by approaching the analysis of market harm on a work-by-work basis.  Instead she should have looked at the overall impact of these “digital Course packs” on publishers overall, and accepted, apparently, their analysis of market harm even though it was not borne out by the revenue figures they were forced to provide to her. This argument overlooks the best reason of all for evaluating market harm on a case-by-case basis, the fact that publishers and the Copyright Clearance Center do not make digital licenses available on a uniform basis.  Each publisher takes a different approach and even within a publisher’s list there will be licensing differences for some works.  Although the CCC is touted to the courts as a uniform licensing solution, libraries that use it, and even those few who use its blanket license, know that it is far from uniform.  Since libraries must continue to do work-by-work analysis to obtain licenses, at vastly different prices and terms, and with uneven availability, the courts MUST look at fair use and market harm on a work-by-work basis.

Based on the weakness of the brief, I think the law still favors GSU.  But politics is a different matter.  Last week we learned that the United States government has asked for extra time to decide if it will intervene, and it has made clear that its intervention would either support the publishers or favor neither party.  The one thing we know for sure is that the Obama administration has no intention of defending educational fair use.  Why not?  Probably because of the revolving door between the Copyright Office (and other administration advisers on IP) and industry.  Most of the people who talk to the administration about IP policy have been either lawyers for the industry or lobbyists.  Unfortunately, the educational community cannot view this administration, or most of its predecessors, for that matter, as impartial arbiters of fair policy on copyright matters.

It is still possible, and even likely, I think, that the Court of Appeals will largely uphold the lower court ruling on GSU.  Judge Evans’ analysis was very careful, even fastidious, and there is is not much room to knock it down.  The publishers’ brief wants to win on “big picture” issues unique to its business model, but we can hope that the Court of Appeals will understand that this is not what fair use is about.  But even if they do, we are still left with an unfortunate situation, in which so much scholarly work, work created for a social benefit and usually with costs underwritten by taxpayers, is turned over gratis into the hands of commercial entities.  And those entities have proven that they will not shrink from fundamental attacks on teaching and research in order to squeeze every penny they can from that work, money that comes time and again from the public.  This is iniquitous for the public and for the scholarly authors, it is reaping what one does not sow, and it turns the purpose of copyright law on its head. But it is also business as usual for the commercial scholarly publishing business.

Last fall I had extended conversations with two senior executives from two of the plaintiff publishers in the GSU case.  I came away from those conversations convinced that both men genuinely saw themselves as providing a benefit for scholarship.  I do not doubt their sincerity, although the one who told me he could “live with” a 10% standard for e-reserve fair use obviously had little input on this brief, which jettisons 10% for a maximum of 1000 words.  But they are wedded to a business model that was once necessary for scholarship and simply is not any longer, and their denial of that fact, and desperate defense of the businesses they run (which is only to be expected) now poses a threat to the educational mission of colleges and universities.  The copyright in most of these works is owned by our faculty members, and it is well past time that we just refused to transfer those rights to commercial entities that undermine our best interests.  Libraries and faculty senates must accelerate the pace at which they embrace new models — and non-profit older models — for the dissemination of scholarship.  We know the change is coming, and actions such as those undertaken by these publishers as they continue to push the lawsuit against GSU, prove beyond doubt that we cannot wait much longer before scholars simply take their works and their rights out of commercial hands.

It has started already

By now I hope most readers are familiar with the case of John Wiley v. Supap Kirtsaeng, which was argued before the Supreme Court last October.  The case involves the doctrine of First Sale in the United States, which underlies library lending and also allows consumers to buy and sell used books, DVDs, etc.  The Supreme Court is being asked to reconcile conflicting opinions from the lower Courts of Appeal about what kinds of copyrighted materials are subject to first sale — that is, can be lent or resold without the permission of the rights holder.  Specifically, publisher Wiley has asked to Court to uphold the Second Circuit, which ruled that first sale only applied to copyrighted materials that were manufactured in the United States.

If you need more background on first sale and the Kirtsaeng case, check out this page of fast facts from the Library Copyright Alliance.  I have also written about the case before, arguing that in the new environment created when the U.S joined international copyright treaties, interpreting first sale in light of outdated rules about where something is manufactured does not make sense.  But right now I want to focus on a specific argument made by the publishers before the Court, in light of two experiences I have had in the past 24 hours.

The Library Copyright Alliance filed an excellent brief with the Supreme Court in this case, arguing that a ruling limiting first sale to works manufactured in the U.S. could have devastating effects on libraries.  The Court seems to have spent a lot of time discussing this “parade of horribles,” and I hope that whatever decision is finally made by the Court, allowances are made to protect libraries.  But the response from the publishers in regard to these putative threats was to simply assert that they would not happen.  The law, they argued, already allows enough room for libraries to go about their business, and we publishers have no interest in disturbing the practices that have been in place for years.

These are comforting reassurances, suggesting that publishers, like most of the rest of the American population, likes libraries and wants to see them flourish.  But can we really rest assured?

Yesterday one of our librarians came to me about a film we had bought.  In response to a faculty request, we purchased a DVD of this film through an ordinary commercial channel.  Going directly to a retail outlet in this case was the fastest way to fulfill the request, as librarians will surely understand.  But somehow the film’s producer found out that our library owned a copy of this film, and they have been asserting to us that we need to buy an additional license, at three times the retail price we paid for the DVD, in order to lend the film.  The argument is incorrect, of course.  The copyright law allows us to lend any lawfully made copy that we acquire, without permission or a lending license.  This is not the case in every country; some nations grant to the copyright holder a “public lending right” that forces libraries to pay extra fees.  But no such right exists in the U.S., and first sale allows us to lend the DVD we bought.  Also, there is no indication that the DVD was manufactured abroad, so even an adverse decision in Kirtsaeng would not change our situation.

Then this morning I had a conversation with a lawyer at another institution about an analogous situation.  A donor to their library had given them some books, amongst which was a copy of a specialized textbook that is currently in use at the school.  Subsequently, the library has been contacted by the publisher of the textbook who has told them that they are not permitted to place the copy of the book that they were given in their library.  The reason given for this prohibition is apparently because they do not want copies of the book lent, and because students might make photocopies rather than each buying their own copy.  The publisher further told the school that they would never sell a copy of the textbook to a library.

Publishers are free to discriminate on prices of course, and even to refuse to sell to libraries.  But to do so they have to lock down channels of acquisition.  We bought our film from a retail website because, as I said, it was the quickest way to fill a faculty request.  Obviously the site made no attempt to determine what “kind” of customer we were, and the producer had clearly decided to use this retail outlet.  The text book at the school I spoke with was a donation.  The answer to the rights holder trying to restrict lending in both cases is the same — tough luck.  First sale covers these situations and allows libraries (and everyone else) to lend lawfully made materials without permission.

In light of Kirtsaeng it is important to note that in neither case is there any indication that the works in question were manufactured abroad.  But if the Supreme Court does decide that only materials manufactured in the U.S. are “lawfully made” for purposes of first sale, I think two things are obvious, based on these two experiences and many others like them.

First, publishers are anxious for an excuse to charge libraries a differential price to obtain books that will be lent.  They already do this with journals, so the claim that they do not want to do it for books is simply incredible.  And even before a final decision in Kirtsaeng, some publishers are already trying to bully libraries into paying more.  As long as retail channels are available to us and first sale protects lending, those efforts will fail.  But if publishers cannot lock down and segregate their distribution channels, they may be able to undermine first sale.

That brings me to the second obvious thing.  If the Supreme Court does hold that first sale applies only to copyrighted works made in the U.S., publishers will have a strong incentive to move their manufacturing operations off-shore.  In making its ruling in Kirtsaeng the Second Circuit admitted as much.  If a publisher has its books printed or its DVDs pressed in the U.S., it will be very difficult for it to implement truly tiered pricing.  But if it moves those operations overseas, it might be able to stop libraries from lending materials without a separate, expensive license.  It might also be able to forbid libraries from lending certain books entirely, like textbooks.  It might even be able to stop students from selling their textbooks second-hand to the next crop of students taking the course.  The experiences libraries have had with e-books proves that these goals are important to publishers.  So do the two experiences outlined above.

In spite of assurances made to convince the Supreme Court to rule in its favor, this “parade of horribles” is really quite likely if first sale is restricted.  Indeed, I am very sure these things will be attempted in that event.  Such efforts have started already.


The collision of copyright and e-science

Last week I was attending a meeting on campus that had nothing to do with e-science (which today refers to virtually all science, I suppose) when a very fortuitous event occurred.  Professor Jerome Reichman of the Duke Law School handed me a copy of the April 2012 issue of the Minnesota Law Review (vol. 96, no. 4).  That entire issue is an article written by Reichman and Professor Ruth Okediji of the University of Minnesota Law school called “When Copyright Law and Science Collide: Empowering Digitally Integrated Research Methods in a Global State.”  It is a long article at 118 pages, although, because of the structure and conventions of law review articles in general, it is a quicker read than one might expect.  More importantly, however, it is a very rewarding excursion into the ways that copyright law around the world have developed and become an obstacle to scientific research, an even more “immediate and pervasive threat”, the authors suggest, than the more attention-grabbing problem of patent thickets.

The purpose of this post is to summarize the article and commend it to those who want more.  The growing interest in e-science on campuses makes this a timely topic; we need to understand the potential difficulties that copyright law can create for digital research and scientific communications. And I have to begin by saying how grateful I am to Jerry Reichman for making the effort to keep me current with the work he and Ruth Okediji are doing.  They are superb scholars whose work could and should have a direct impact on how universities support research and advocate for laws that facilitate, or at least do not impede, that research. Their joint work has tackled scientific issues and IP before, so I am delighted they are turning their considerable intellects to copyright and science.  Jerry is also a good friend and, as I now know thanks to my young cousin who had him as her Contract Law professor a couple of years ago, a fine teacher.

Reichman and Okediji begin their article with an historical examination of the “growing divide between copyright law and scientific research” that encompasses both the unique conditions in the U.S. and international obstacles to science that arise out of the complex of treaties and directives that are now in place.  They demonstrate convincingly that the traditional balance that has facilitated scientific research for years has been subverted recently by a variety of factors.  Among these unhappy developments are the trend toward ever more protectionist approaches to copyright, database protection rules in the EU and judge-made protection for facts and data in the U.S.,  the use of technological protection measures to lock up data that would otherwise be free for scientific reuse, and an overemphasis on the so-called three-step test from the Berne Convention, which is too often applied without any normative guidance.

In the course of this discussion, Reichman and Okediji make an interesting observation about limitations and exceptions to copyright in general, and fair use in particular.  They note that the traditional European approach to exceptions focuses on specific, narrow exceptions that lack flexibility.  There is little surprise in their conclusion that the EU needs the flexibility of fair use.  But they are also critical of the “all or nothing” approach that fair use fosters, where a use is either forbidden as infringing, or, if found to be fair use, does not allow for any compensation of the rights holder.  In some situations, they suggest, especially when the path to scientific progress leads through commercial users, a “take and pay” rule, similar to what is found in the EU three-step test, might be welcome.

The overall situation that Reichman and Okediji outline is most unpromising, as they suggest that the rights of scientific users are shrinking even in the area of print media, and have been virtually eliminated for science conducted in the online environment.  Again, the growing trend toward copyright or copyright-like protection over data is a large part of the problem.

In the area of e-science, Reichman and Okediji offer scientific research a Hobson’s choice between ignoring laws that have become unmanageable and unreasonable, or foregoing research opportunities.  The two paragraphs in which they lay out these unavoidable options are worth quoting in full:

If the relevant intellectual property laws were strictly enforced, and the scientific community continued to respect them, scarce public resources earmarked for basic research would be siphoned off to intermediaries from scientists seeking access to and use of their own published research result.  In that event, the public pays twice for the same output, plus a surcharge for mushrooming transaction costs … Less innovation, not more, is the predictable result over time.

Conversely, if intellectual property laws are ignored by researchers determined to carry on with their work irrespective of unreasonable legal constraints, automated knowledge discovery tools will become transformed into engines of massive infringement.  It is hard to see how systematic disregard of intellectual property laws, coupled with growing contempt for the legislative process that fosters them, will benefit authors, artists and other creators in the long run, especially when those condemned to outlaw status are not free-riders on costly musical and cinematic productions, but publicly-funded scientific researchers in pursuit of greater knowledge and applications that benefit humanity as a whole.

This is a situation that cries out for reform, and it is clear from the above that reform must begin by distinguishing scientific and academic research from commercial productions.  One-size fits all copyright laws are failing the scholarly community, and legislators and judges need to begin to treat scholarly works differently.  Fortunately, Reichman and Okediji provide us with a detailed set of recommendations about what kind of reforms are needed.

One reform they suggest that judges could accomplish would be the aforementioned “take and pay” approach to some uses that might otherwise be defended, probably unsuccessfully, as fair use.  The authors point out that Justice Souter suggested just such a possibility in a footnote to the Supreme Court’s decision in Campbell v. Acuff-Rose Music (the “Pretty Woman” case) but no judges have, up till now, taken the hint.  The discussion from Reichman and Okediji on this point alone justifies a close look at the article.

Many of the other reforms they suggest are grouped under the heading “What E-Science Really Needs from Any Legislative Reform.”  In that astonishing collection of suggestions, Reichman and Okediji include a tailor-made exemption for scientific research, rules allowing the breaking of technological locks more freely for research purposes, and limitations on the ability to override copyrights limitations and exceptions by using terms of use and other contractual arrangements.  And one other that we should mention that is particularly relevant in the international context is an alignment between database protection rules and copyright exceptions.  Not only should copyright exceptions be used to adjust database protection laws, say the authors, but these exceptions, both as the apply to copyright per se and to sui generis data protections, must be “preemptory, mandatory and immune from both contractual overrides and TPMs” (citing a report from the Max Plank Institute).

There is so much to digest in this article that I feel a little abashed trying to summarize it.  But one thing is certain, I think.  The attention that Reichman and Okediji shine on the conflict between copyright laws and scientific progress is simultaneously profoundly welcome and deeply troubling.  Welcome because we must look at the problem squarely and honestly, and troubling because we have such a long way to go to solve it.

Is the CCC having an “Instagram” moment?

As many readers will know, the past few weeks have seen a couple of controversies over end user license agreements (EULAs) and Internet services.  In the library world, Yankee Book Peddler, an order fulfillment service, announced that they would introduce such an end user license whenever someone logged in to their ordering database.  The license terms included indemnifications and submission to the law of New Hampshire.  Both of these terms are impossible for most public institutions, and there was a lot of outcry.  Eventually, YBP withdrew its plan to introduce the EULA.  Then, earlier this week, there was a lot of controversy when Instagram announced that its new license would gave it the right to sell photos uploaded by subscribers, even for commercial purposes like advertising.  Again there was much consternation and an eventual repudiation of its earlier position from Instagram.

The use of EULAs for academic services instead of negotiating terms with each customer is especially problematic.  For one thing, those licenses often contain terms that are unacceptable and, for public institutions, may be invalidated by state laws and regulations over purchasing by state entities.  Worse, the EULAs are by definition required as a condition of use, meaning that the staff members who actually accept them are seldom the employees who actually have the authority to bind a university to a contract.

These considerations were in my mind when our e-reserves specialist informed this week about “new” licensing terms he had encountered when placing a request for a permission license with the Copyright Clearance Center.  A two and a half page set of terms was suddenly appearing with each order confirmation, and they contained a lot of the same troubling assertions that we saw with the proposed, but never implemented, YBP license.  Institutions indemnify CCC and agree to defend them against claims arising from any use outside the scope of the license.  Institutions agree to the application of New York law and the jurisdiction of New York courts.  Most distressing, each institution that uses the CCC agrees that that organization, which has been active in financing the legal case against Georgia State University, has the right to access and audit university records, which is not only a possible violation of our obligations under FERPA, but also seems like giving a potential adversary free pre-litigation discovery rights.

As with the proposed YBP license, several of the terms in this EULA are impossible for most public institutions, which usually cannot agree to indemnifications — because they could create an uncontrolled drain on taxpayer dollars — or submission to the laws and jurisdiction of another state.  Even for private institutions, which are not forbidden by law from agreeing to such terms, the license contains things we would try to negotiate around if the CCC had engaged us at the enterprise level rather than simply imposing these terms for acceptance by employees not actually empowered to do so.

Since I first learned about these terms on Tuesday, it has become less clear to me that they are actually new.  It turns out that our e-reserve employees have been clicking through an “accept the terms and conditions” box when they place orders with CCC for some time.  It is likely that other campus employees, including administrative assistants for departments, have done the same thing.  I simply do not know if these terms that suddenly appeared on the order confirmation are new, or just a more assertive way of making the older terms known.  In asking around, I discovered that at least one state university encountered and objected to similar terms several years ago, and negotiated separately with the CCC to arrive at a different agreement that supersedes any terms agreed to at end-user level.

My immediate reaction to these terms is that many of us will want to have similar negotiations to supersede this EULA, and that all of the CCC’s public customers will have to do so.  These terms might simply be invalid as a matter of state law for some public institutions, and they could be objected to by many other CCC customers on the basis that the end-users who must click through the license simply lack the authority to commit their employers to those terms.

For the record, I do not yet know what my own institution’s reaction will be; I have scheduled a conversation about the CCC terms with our Office of University Counsel.  But it still seems important to share the information about this new manifestation, at least, of terms that may well be unfamiliar to those folks who are actually responsible for contracting and purchasing decisions at their institutions.

I would be interested to hear from institutions that have already attempted to negotiate directly with CCC to supersede these terms.  I hope the comments to this post fill up with the news that others are way ahead of me and have acted to prevent the problems this license seems to cause.

Finally, I wonder what impact these licensing terms could have on a fair use argument, especially in light of the ruling by Judge Evans in the Georgia State case.  In that ruling, the Judge held that the fourth fair use factor, impact on the market for the original, favored the publisher (and so weighed against fair use) IF a license for the digital excerpt (not simply a license for another format) was “readily available at a reasonable price” (pp. 72 – 81 of the opinion).  My question is, could the licensing terms imposed by the CCC have an effect on whether or not the license is “readily available.”  If a public institution, including, possibly, Georgia State, is prevented by state law from accepting terms like the ones included in each permission transaction from the CCC, can that permission really be said to be readily available?  How can something be readily available if it is conditioned upon acceptance of an agreement that the institution is not allowed to accept?  And if such a license cannot really be considered readily available, how dramatically does that impact the fair use analysis, especially in those cases where a publisher will not accept permission requests except through the CCC?

As I say, we are still deciding what these licensing terms, whether they are brand new or of long-standing, mean for our business with the CCC.  But it seems likely that for some institutions, at least, these terms make the use of that permission service an impossibility unless they negotiate a superseding agreement.  And for many of the rest of us, this added roadblock will cause us to rethink where and when we can purchase licenses, and when we must rely on fair use simply because we have no other feasible alternative.

It seems simple, really

I have to start by saying that I am not an economist, and I know just enough to understand that economic analysis is never simple or straightforward.  And yet, when these two different news items came to my attention in a short time frame, the link between the two of them still seemed pretty obvious.

Yesterday, Reuters news service ran an article about a rating of eleven countries based on their enforcement of intellectual property rights.  The index was prepared at the behest of the U.S. Chamber of Commerce by a group called The Global Intellectual Property Center, and it ranks the U.S. at the top of the list in terms of strong IP protection (23.73 points on a scale from 0 – 25).  But what is interesting is who scored lowest (out of the eleven countries that were ranked).  The four “worst” countries for providing the strong IP protection important to the Chamber of Commerce were the four countries known as BRIC — Brazil, India, Russia and China.

So what else do we know about these four nations?  In fact, why were they originally grouped together under the acronym BRIC?  The answer is that the term was coined because these four countries were the fastest growing emerging economies, showing growth rates between 5 and 9 percent in their gross domestic products (compared with US growth averaging 3.2 over the past 65 years).  The source of these averages for the BRIC nations is this report from PriceWaterhouseCoopers, dated February 2012, which contains this conclusion: “We expect the BRIC economies to continue to drive world economic growth in 2012.”

So the four countries driving economic growth are also the four countries with the weakest IP protection regimes, amongst those 11 rated by the Chamber of Commerce report.  Doesn’t the conclusion seem simple, that weaker IP enforcement is part of the picture for economic growth?  We need to acknowledge that the growth of the BRIC countries is slowing, as reflected in this news report about the conclusions of the Goldman Sachs Group, which originally coined the acronym.  But the very fact that the news report refers to the “BRIC decade” is significant; over an extended period all four BRIC economies have grown very fast, and all of them have done so without strong protection over intellectual property.

Correlations can be tricky things, but I think some modest conclusions are justified.  First, obviously, ratcheting up IP protection is no guarantee of economic prosperity.  As we will discuss further in a moment, it is very possible for nations, industries and even individual creators to thrive without relying on a strong government-created monopoly over the products of the human intellect.  Second, I think it is also clear that there is a point where IP protections can be too rigorously enforced, to the extent that they impede economic progress.  Indeed, it seems likely that the US, with its high score on the survey described above, has reached that point; at a recent forum sponsored by Federal Trade Commission, Professor Collen Chien of Santa Clara University pointed out that for the first time in 2012, a majority of patent lawsuits were brought by so-called “patent trolls” — companies that do not invent or create anything but exist simply to buy up patents and then demand licensing fees from companies that are trying to create and invent.  These licensing fees can reach the point where they are nothing more than a government-enforced tax on innovation. The situation developing in the US with patent “thickets” and patent trolling is a painful example of how broad grants and strict enforcement of IP rights can inhibit economic development.

If we move from the level of national economies to that of industries and creators, these two conclusions seem to hold up.

Consider the example of the Nigerian film industry, often referred to at Nollywood.  The Nigerian film industry has boomed over the past two decades, largely by becoming one of the world’s leading producers of digital video films.  And they have done this in a environment that “has not historically had robust intellectual property enforcement.”  As this research paper from the University of California, Irvine Law School suggests, IP protection is, at least a double edged sword.  Piracy can reduce revenues, but it also helps to create distribution channels and grow markets.  So creative industries seeking to grow in the digital economy need to do more than try, futilely, to eradicate piracy, they need to seek ways to shape their markets and their marketing to exploit the audiences that it can create.

Indeed, a recent book from Oxford University Press, called “The Knockoff Economy,” describes how several major industries, including fashion and food, can not only thrive in the absence of IP protection but can turn the shadow industries that develop around “knockoffs” into part of an overall economic strategy.  And the story of the US film industry, as told in Hollywood’s Copyright Wars, actually confirms the role of unauthorized copying in the growth of new industries and suggests a model for internal negotiations to control and benefit from such “piracy” that are more effective than rigorously enforced IP laws.

Finally, if we want a very current, individual example, we need look no further than the Korean pop star Psy, whose “Gangnam Style” video is now the most watched YouTube video in history and who stands to make $8.1 million dollars from the fame that he has gained by not enforcing his copyright.  Very few of us had probably heard of Psy before the Gangnam Style video became the subject of the many parodies and remakes that flooded YouTube, blogs, college campuses, etc.  He took no action to prevent those “knock offs,” as many artists and production companies would have done.  Instead, his fame grew to the point where he could license his song and his image for commercial uses at levels he could only have dreamed off if he enforced his copyright rigorously.  In short, he found a way to monetize “piracy.”

So, slippery as such conclusions can be, I feel comfortable with these two assertions.  First, creative people and creative industries can thrive without strong IP protections.  In fact, if you are continually looking to the government to increase IP enforcement on your behalf, your industry is probably already in bad trouble.  Second, it is perfectly possible to over-enforce IP rights to the point where creativity and economic growth are stifled.  There is good evidence that the US has passed that point, and the example of the BRIC nations should suggest to us that we need to reverse our course.

Up the revolution?

Since I posted my thought experiment about how to create a revolution in two not-so-easy steps, several colleagues have sent me responses and additional material, and it is clear that further discussion is called for.  That is good news, as far as I am concerned.  Talking about a revolution, in the scholarly communications space, is a lot more profitable than merely complaining about the status quo.

Several commentators have suggested that the first revolutionary step I proposed, asserting institutional ownership over faculty scholarship under the work for hire doctrine and then granting back to the authors broad reuse rights, would create an outcry and be impossible to implement due to “political” opposition.  The latter point may well be true — that is why this is a thought experiment — but I am not sure that in reality the proposal would create a situation that is very different from the current state of affairs for scholarship.  Most academic authors actually hold their copyrights for a very short time — they transfer them to publishers nearly as soon as a work is complete and often retain next to nothing in terms of rights to reuse.  In practice, the situation I proposed would be more advantageous for authors, not less; authors would hold broader rights than they do now, and the copyright would be in the hands of an entity with a vested interest in seeing the reputation of the author — that specific author rather than merely a journal title — grow.

One colleague sent me a link to an article about academic ownership of copyright that is found on the AAUP website.  The article strongly asserts the need for individual ownership of academic work and asserts a “parade of horribles” that would result if institutions asserted ownership over ANY faculty work (the specific work that it mostly focuses on is syllabi).  My colleague suggested that it showed how strong opposition to such an assertion of institutional ownership would be.  But as I read the article, I found that it made such a strange argument that I doubted its ability to represent mainstream opinion amongst academic authors.

Consider two of the horrible examples offered as to what might result if universities forced faculty members to make just their syllabuses openly accessible (something many institutions already do, with an eye toward assisting students in selecting classes to take).  The authors of the AAUP article illustrated the alleged danger of having syllabi available to the public by citing a claim made by right-wing political activist Phyllis Schafly in 2007 that allegedly blamed the mass shootings that took place on the Virginia Tech campus on a “feminist professor” from the killer’s major department whose syllabus, Schafly said, illustrated how the “mixed-up kid” might have become further “confused.”  Surely this is poor argumentation — we can hardly allow nutty assertions about what takes place in college classrooms to force us into “bunker” mode,  where we hide from publicity lest someone, somewhere, calls us kookie eggheads or worse.  In fact, being more public about the scholarship that is pursued on our campuses ought to have the effect of countering the frequent claims made by pundits and the media alleging academic bias, indoctrination or just plain wackiness.

Another attempt to tar open access and institutional ownership with the brush of controversy comes much later in the essay, when the authors express doubts that the University of Colorado would have wanted copyright ownership in Ward Churchill’s controversial “little Eichmanns” essay.  The implication is that copyright ownership somehow would make Colorado even more responsible for Churchill’s views than they would already be considered, simply as his employer.  But this is not true, of course.  Many different industries, employing all kinds of authors, own copyright without being responsible for the content of the writings they own.  And a University is always going to be blamed or praised for the work of its faculty members, regardless of where the copyright in that work is held.

The real issue raised by this essay is academic freedom.  If the University of Colorado was the copyright owner in Churchill’s essay, could they have declined to allow it to be published, or even forced alterations?  Would work for hire mean that universities would have control over the content of faculty scholarship, as well as its distribution?

The first answer to this very legitimate question is that it would depend on how the work for hire assertion was managed.  The contractual relationship between a university and its faculty, for example, could not only grant broad reuse rights to the authors, it could also guarantee publication of faculty-authored publications in whatever venue the faculty member stipulated, as long as the venue met tenure or promotion requirements.  Articles that were not to be considered in the promotion and tenure process would not qualify as work for hire because they would be outside the scope of the employment.  A provision such as this would separate scholarship, in which the institution has a significant interest and for which it provides the principle incentive, from other kinds of writing.

The second answer to the worry over academic freedom is that the current system also poses threats to faculty independence and self-governance.  For over a year now, the publication contracts that faculty authors sign with journals owned by Elsevier contain provisions that condition the rights that those authors retain over their work on the nature of the policies that the faculty on a particular campus have adopted.  If your faculty policies meet with Elsevier’s approval, you are granted a moderately generous reuse right.  But if your campus policies are such that Elsevier disapproves of them, those rights are not granted.  This intentional intrusion on the right of faculty to set policies for themselves that they believe are in their own best interest and the best interests of the academy has been met with surprisingly little outcry, perhaps because it is buried in the fine print of contracts most authors never read.  But it is stark evidence that commercial interests can also pose a threat to academic freedom, especially in the digital age.

In any case, all of this concern over who owns scholarship may be unnecessary.  Another commentator on my original post about two steps to revolution made the excellent point that the first step might not be necessary.  If the goal is to cut out the commercial publishing interests that are making a mess of scholarly communications, that can be done simply by deciding that only articles (and books?) that are openly available and subject to article-level assessment techniques will be considered in the promotion and tenure process.  No change in ownership is actually needed, and this one-step solution gets us around the (manageable, nevertheless) worry over academic freedom.

Is this one-step revolution possible?  As I mentioned in the previous post, at least one university, in Liege, Belgium, has put this policy into practice.  As this translation of a memo from Rector Bernard Rentier says, at Liege,

starting October 1st, 2009 only those references introduced in ORBi [the institutional repository at Liege] will be taken into consideration as the official list of publications accompanying any curriculum vitæ in all evaluation procedures ‘in house’ (designations, promotions, grant applications, etc.)

So it seems pretty clear that such a policy is possible and practical.  But to be honest, it probably is very difficult to implement in a context where most open access opportunities exist only in the STEM disciplines.  Faculty in the humanities, especially, are likely to feel disadvantaged by any such policy.  One possible solution, of course, which is what Liege has adopted, is to make the institution’s open access repository the focus of the policy, so that articles published anywhere can be considered for promotion reviews as long as they are also in the repository.  But open access, and its role in P&T, will be easier for many to accept when the options available for OA publication in the humanities begin to catch up with those in the STEM fields.

That is why the announcement made by Amherst College earlier this week of a digital, open access press being founded in the College library to focus on peer-reviewed monographs in the humanities is so exciting (there is also a story about the project from Inside Higher Ed here).  Experiments that facilitate open access in the humanities are important as much psychologically as they are practically; they will help make more scholars more comfortable as they wean themselves from dependence on commercial publishers and “reader must pay” models.  And they will demonstrate, I hope, that open access monographs are as viable as journals.

At the end of all this, I think I want to revise my two-step revolution.  While I still think that the issue of copyright ownership deserves in-depth discussion, the two-steps that seem most important to me now are, second, that promotion and tenure processes limit themselves to consideration of openly accessible works,  And, first and foremost, that colleges and universities follow the lead Amherst, “giving light to the world,” has provided by supporting new ways in which scholarship can be produced and disseminated.

Discussions about the changing world of scholarly communications and copyright