Revisiting Section 108

September 15, 2017 David Hansen, JD 3 Comments

Earlier today the U.S. Copyright Office released its long-awaited review of improvements to Section 108 of the Copyright Act, the section which grants limited, specific exceptions to copyright for libraries and archives. Over a decade ago the Office convened the Section 108 Study Group* to assess improvements to this section, and in 2008 that group produced its report. Since then (and with recent inquiries from the Office to stakeholders) we’ve been waiting to hear from the Copyright Office about its views on updates to Section 108. This Section 108 “Discussion Document” does just that.

Before getting into the document I want to start with two observations. The first is that Section 108 is horribly outdated. Most of its text is exactly the same as enacted in 1976. The piecemeal updates that have been added to address modern library and archives practices, including online uses, haven’t worked well and are awkward additions. I–and many others–have written about the need to update Section 108.

The second is that I’m leery of asking Congress to revise any part of the Copyright Act, including Section 108. From someone who thinks that copyright law already unnecessarily restricts access to lots of information in ways that have no positive effect on the copyright system’s underlying purpose–encouraging the creation and dissemination of new creative works–I don’t think Congress has a great track record on legislative revisions. Since the 1970s Congress has consistently made copyright terms longer, dramatically expanded the number of works protected, and has made using those works riskier. Asking Congress to revisit Section 108 could mean that it gets much worse, rather than better.

All that said, I think many of the Office’s suggestions are pretty good. I can’t go into every detail in this blog post–the Discussion Document is around 60 pages long, and it needs every one of those pages–so, for now, I thought I’d point out the top three positives I see in this document:

1) The Office suggests in a number of places removing hard numerical limits on the number of copies allowed. For preservation purposes, for example, the proposal would allow libraries, archives, and museums to reproduce works “as many times as is reasonably necessary for preservation and security.” This is a major problem under the current statute, which generally only allows for making three preservation copies. Perhaps more significantly, the proposal would also low eligible institutions to make incidental, temporary copies that are needed for making resulting preservation copies and for copies made for users. This is important when thinking about digital access because it would eliminate concerns about whether 108 can apply at all when incidental copies are made in the course of transfer from one machine to another.

2) It would expand the categories of works to which Section 108 applies. The current statute makes several Section 108 exceptions inapplicable to musical works, pictorial, graphic or sculptural works, and to motion picture or other audiovisual works. That restriction currently limits 108’s usefulness–and makes it all the more difficult to understand and apply–without providing a clear benefit for rightsholders of those kinds of works. This document also reframes how the Section 108 exceptions would apply to “published” versus “unpublished” works (the current Section 108 treats unpublished works differently, with the idea that unlike published works, there generally isn’t a commercial market to be harmed by the use of those materials ). The new proposal opts instead to make distinctions based on whether the work was ever “disseminated to the public” by the copyright owner. “Publication” is a notoriously difficult concept, so the move away from it to something a bit broader is welcome, though I’m not sure the concept of “disseminated to the public” is going to be easier to apply in practice.

3) It suggests that institutions should be able to provide remote digital access to users, albeit in some cases limited to one user at a time, for a limited time. This most directly applies to works “not disseminated to the public,” (i.e. unpublished works). For archives, this enhancement could be significant when thinking about how to provide access to preservation copies. Would an online reading room, with technology to allow for controlled digital lending, be permissible under these terms?

The Office’s 108 document also has parts that are likely to cause some controversy. One big one is a suggestion that eligible libraries, archives, and museums could be exempt from copyright liability for violating non-negotiable contract terms that prohibit institutions from engaging in preservation activities otherwise permitted under Section 108. I think this is an incredibly important suggestion, given the number of click-wrap, consumer-oriented license agreements that libraries enter into so they can provide electronic access to their patrons. Many of those contracts prohibit making copies necessary for preservation purposes, but if libraries aren’t saving copies there is a great risk that in the long term, those works may one day become entirely inaccessible to everyone.

Another part of the document likely to cause some controversy is the requirement that eligible institutions implement reasonable digital security measures. I understand the desire for such a limitation, but this is an area where the devil is going to be in the details. Who decides what is reasonable is an open question, and how compliance with that provision is monitored and assessed could be extremely burdensome for some institutions.

Overall, I have to say that I’m impressed. I think the Office did good work in pulling together the results of the Section 108 Study Group report as well as feedback from stakeholders in creating this document. As proposed, the Section 108 envisioned in this document still wouldn’t provide all or even most of what libraries, archives, and museums need to fulfill their missions, and fair use would remain an important and probably overriding consideration when making uses of copyrighted works. But, as a sort of safe harbor for institutions seeking certainty for activities that they commonly engage in, the types of improvements outlined in this document would be welcome and a great help in facilitating modern (as opposed to 1970s-era) libraries, archives, and museums.

___________

* The 108 study group was jointly convened by the The National Digital Information Infrastructure and Preservation program of the Library of Congress and the Copyright Office.

Does Fair Use Affect Academic Authors’ Incentive to Write? Some Lessons from Authors of Works from the GSU Course Reserves Case

May 19, 2017 David Hansen, JD 3 Comments

This post was co-authored by David Hansen and Brandon Butler and cross posted on The Taper and on Duke University Libraries’ Scholarly Communications Blog.

Copyright law in the U.S. is premised on the idea that exclusive rights given to authors act as an incentive for them to create and disseminate new works, which ultimately benefit the public. Does it actually have that effect, particularly for academic authors? And if so, how does the scope of limitations on copyright, such as fair use, affect the strength of that incentive?

It’s an interesting question, and one that seemed to concern the 11th Circuit Court of Appeals when it first weighed in on the Cambridge University Press v. Patton GSU e-reserves fair use case (read more things we’ve written about that case here and here). The court explained:

If copyright’s utilitarian goal is to be met, we must be careful not to place overbroad restrictions on the use of copyrighted works, because to do so would prevent would-be authors from effectively building on the ideas of others. Some unpaid use of copyrighted materials must be allowed in order to prevent copyright from functioning as a straightjacket that stifles the very creative activity it seeks to foster. If we allow too much unpaid copying, however, we risk extinguishing the economic incentive to create that copyright is intended to provide.

Since fair use is to be assessed “in light of the purposes of copyright,” that analytical framework seems spot on. But how can we tell if particular types of fair use–e.g., use of excerpts from books for classroom uses–hurt or help incentives to create and disseminate new works? One way to make this assessment is to look at the use “from the point of view of the reasonable copyright owner,” which is the approach the Supreme Court identified in Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 550 (1985). What is the perspective of the “reasonable copyright owner?”

A Survey of GSU Authors

We thought one way to find that perspective would be to ask authors who are routinely on both sides of the copyright equation, creating and reusing copyrighted works. Specifically, we thought we would ask the authors of the works that form the basis of the GSU lawsuit. That case involves a large number of academic works; at trial the plaintiff-publishers claimed 74 instances of infringement for use of excerpts of works uploaded to GSU course websites over three semesters. Those works were associated with 112 living authors and editors, and for most (79) we were able to identify current contact information. (Big thanks to Brandon’s research fellow Sedef Ayalp!)

We developed a survey with ten questions to see whether these authors knew about the case, whether they approved of GSU’s uses being treated as fair use, and whether they themselves make fair use of others’ academic works in their teaching. The questions were designed to shed some light on our hypothesis: that most academics expect their works to be used freely for teaching, partly because they make such uses themselves. If we are right, fair use should favor these uses to the extent they would have no negative effect on the authors’ incentives to create. (The incentives of publishers are a separate issue.)

In total, we received 18 responses. That was enough to pique our interest, though we don’t want to overstate the results or extrapolate from them; this was a survey of a small group of people for which respondents self-selected participation. Nevertheless, we did see responses that were consistent with our hypothesis, at least as applied to this group of respondents. We’re sharing the results here in hopes that it will interest you as well and spur more research on how authors think about fair use.

Results

First, we asked about familiarity with the suit. Eleven respondents said they were not even aware of the suit prior to the survey, and seven indicated familiarity. When asked “Were you consulted by the publishers before this lawsuit was filed?” all respondents answered “no.”

As for the substance of the lawsuit, for a baseline we asked about which side the author tended to support. Most indicated strong support for GSU, or took a neutral position. One author indicated strong support for the publishers.

Table 1 – Responses to “Based on what you know about the suit, do you as an author or editor of the works used by GSU faculty support either side of the” dispute?

Answer	Responses
Strongly Support GSU	11
Support GSU	1
I am neutral	5
Support Publishers	0
Strongly Support Publishers	1

When asked about incentive effects, most said that these types of uses had no effect on their motivation to produce new works, while one person said that it had a negative effect. Five respondents indicated that these types of uses actually had a strong positive effect on writing new works

Table 2 – “How does the use of your work in ways similar to how GSU faculty used it–unpaid excerpts available to enrolled students through a secure online course page–affect your motivation to produce new works?”

Answer	Responses
Strong negative effect on writing new works	0
Negative effect on writing new works	1
No effect	11
Positive effect on writing new works	1
Strong positive effect on writing new works	5

Getting down into how royalties in particular factor into these authors’ incentive to write, most respondents indicated that it wasn’t a factor at all.

Table 3 – How important is the expectation of royalties in your motivation to write works like the one at issue in this case?

Answer	Responses
Extremely important (e.g., I don’t write unless I expect royalties)	0
Very important	0
Moderately important	3
Slightly important	4
Not at all important (e.g., I happily write without any expectation of royalties)	10

We also asked a few other questions about royalties and about how these authors may have made their own uses of excerpts in courses they have taught. You can see the full set of questions and responses (minus a free-text response field since those responses may reveal personally identifying information) here.

Conclusions and Reflections

As we say above, this is certainly not enough data to prove or disprove our hypothesis about what academic authors actually believe or do. It is nevertheless encouraging that our limited data is consistent with what we would expect to see if academic authors write with the expectation that their works would be subject to broad fair use for educational purposes. This is a theory of fair use with deep roots. Alan Latman’s study of fair use, published in 1958 as part of the Copyright Office’s review of the law, explains, “One theory behind such permissible copying is the implied consent of the copyright owner. In many cases, duplication of portions of his works should be desired by the author for its beneficial effects.” This is consistent with the overall incentives-based approach to copyright; uses an author would welcome are, presumably, uses that would not diminish the author’s incentive to write and publish her work. These should get strong fair use protection. (Like Latman, we believe the scope of fair use goes beyond what implied consent would cover; those uses to which an author would consent if provided the opportunity have a particularly strong claim to fair use, but author consent is not the end-all-be-all of fair use.)

Another notable aspect of the survey responses is the total disconnect between the authors of these works and the lawsuit brought by their publishers. Most were unaware of the suit, and none were consulted by the publishers before the lawsuit was filed or as it was being litigated. The law does not require author consent to lawsuits like this, where the publisher (presumably) holds the copyright or an exclusive license to the underlying work. (Although, one interesting aspect of the GSU case is how many of their claims the publishers had to abandon because they could not prove copyright ownership.) Once the transfer or license is made, the publisher is empowered to enforce the rights it has acquired. Authors, courts, policymakers, and universities should consider this potential disconnect between authors and publishers as they make key decisions about copyright law and policy.

Authors faced with a publishing contract that includes a copyright transfer or license should consider whether they trust the publisher to enforce those rights in ways consistent with academic values and expectations. While in theory these uses should be (and so far have been) protected by fair use, authors who want to be sure that their expectations about educational use will be followed may want to explore publishing in open access venues or self-archiving in repositories using open licenses, like the suite offered by Creative Commons. The disconnect between authors and publishers further validates the efforts of organizations like the Authors Alliance and SPARC, who work to empower authors to use their rights to enable broad access and reuse, and to educate publishers about modes of distribution that better fit author needs.

Courts and policymakers should keep the author-publisher distinction in mind as they weigh amicus briefs and white papers from publishers and their trade associations. These advocacy pieces often blur the line between authors and publishers, placing publishers in the shoes of authors and warning that decisions favoring fair use or open access may undermine scholarship. Publishers’ incentives and their copyright policy preferences may diverge substantially from those of authors.

Universities and libraries should consider this disconnect as they make decisions about which kinds of publication models to support. Like courts and policymakers, universities and libraries are often told that established publishers are indispensable stewards of the scholarly record. These arguments ring hollow if publisher choices about how to exploit and enforce copyrights come apart from academic interests and values.

We hope to do more research to learn more about the incentives and expectations of academic authors. Until then, we hope this preliminary sketch has been helpful and will point others in useful directions for their own research.

Libraries, Licensing, Scholarly Publishing

LSU v Elsevier – Paying Twice (or More) for Scholarship?

May 3, 2017 David Hansen, JD 5 Comments

When discussing the cost of library collection purchases, I sometimes try to make the point that universities are really paying for scholarly work twice–once by paying faculty salaries to research and write, and a second time when the library purchases those writings back from publishers.

After reading the complaint filed in the recent LSU v. Elsevier lawsuit, I wonder if we’re sometimes paying three or maybe four times. The lawsuit, apparently filed back in February but only just yesterday publicly reported, is based on a breach of contract claim. LSU alleges that Elsevier has shut off access to the LSU veterinary school even though Elsevier’s contract with LSU promises access to the whole LSU campus, and specifically includes access to the IP ranges representing the veterinary school.

LSU v. Elsevier

Krista Cox at ARL has written an excellent backgrounder on the lawsuit. Among the materials she links to is the complaint, which includes as Exhibit B this letter from LSU’s lawyers to Elsevier outlining LSU’s legal arguments.

The basics are that Elsevier had been selling LSU access to the same content through two different contracts – once through a contract with the library that covers the whole campus, and a second time through a contract specifically for the LSU veterinary school to provide access to just that unit. LSU, not wanting to pay twice for the same content, let the veterinary school contract expire. Veterinary school users then relied on access licensed by LSU Libraries, which was provided for under the main library contract with Elsevier that purported to cover the whole campus and that specifically identified IP ranges associated with the veterinary users. In response, Elsevier shut off access to the veterinary school IP ranges and insisted that LSU pay more for access for those users. After some failed negotiation, LSU filed the lawsuit.

In terms of legal issues, this looks like a straightforward breach of contract claim. In fact, I’m surprised that Elsevier’s lawyers let the dispute get to this point. Unless there is significant information not included in the complaint, I find it hard to put together a good defense. The contract is clear about access to the campus, including the IP range representing the veterinary school. It is also clear that the contract document was the “entire agreement” and not created on the condition that some other deal (e.g., the prior veterinary school-Elsevier contract) remain in place. There isn’t a lot of complicated legal analysis here—Elsevier promised to provide access, and now it is going back on that promise in an attempt to extract more money from LSU.

What this case means for the rest of us

It’s behavior like this that gives Elsevier a negative reputation among those who purchase content from the company. I don’t think many among us expect Elsevier to roll over in negotiations, but from what I can tell in this case the publisher, in my opinion, was unfair and coercive in its approach. It leveraged its significant market power to try to push LSU into purchasing access again that it has already paid for once before. Elsevier knows that no one else can provide access to all these titles, so what is LSU to do?

Beyond the aggressive negotiation tactics, what also worries me about this suit is the prospect that, like LSU, others of us work with schools, departments, projects, etc. that have been solicited by publishers such as Elsevier to purchase access that another entity on campus has already legitimately licensed for the whole university. In a large, decentralized organization like a major research university, there is bound to be some duplicative purchasing. If there are duplications and universities recognize and make corrections to eliminate them, will we too be subject to the same negotiation strategy? Would we be bound to continue paying twice? Would access for medical schools, veterinary schools, nursing schools, or law schools, be held hostage as well?

Fair Use

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

February 24, 2017 David Hansen, JD 2 Comments

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

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

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

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

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

Happy fair use week!

Fair Use is for Innovation

February 23, 2017 David Hansen, JD 3 Comments

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

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

Fair use and the purpose of copyright

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

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

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

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

ReDigi and digital resale

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

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

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

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

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

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

Authors' Rights, Fair Use

Fair Use for Authors

February 21, 2017 David Hansen, JD 3 Comments

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

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

Why Authors’ Perspectives on Fair Use Matter

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

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

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

Authors Alliance

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

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

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

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

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

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

February 8, 2017 David Hansen, JD

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

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

A Standards Business Model

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

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

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

Should Standards Receive Legal Protection?

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

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

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

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

Where should the Copyright Office live? A response from Duke Libraries

December 14, 2016 David Hansen, JD 2 Comments

The Library of Congress James Madison Building where the Copyright Office is located. Credit to Flickr user KenLund, licensed under a CC-BY-SA 2.0 license.

The U.S. Copyright Office has been a major topic of discussion lately. A few weeks ago Register of Copyrights Maria Pallante resigned, following her removal by new Librarian of Congress Carla Hayden from her post as Register and into a new advisory position in the Library. Beyond the speculation about what exactly led to Pallante’s reassignment, the move has reignited debate about the relationship between the Copyright Office and the Library of Congress. The Library of Congress has overseen the Copyright Office since the Office’s inception more than a century ago, but there are increasingly serious calls (including from Congress) for changing that relationship and possibly moving the Office outside the Library. Earlier this week Duke Libraries weighed in with a letter to Congress, and I know several others will too in the next few days. [Edit: this includes a letter drafted by Brandon Butler on behalf of himself and 42 individual copyright-library experts (including me!), that was sent today].

Why the Copyright Office matters

While the Copyright Office doesn’t actually have a lot of say in interpreting copyright law, it does make recommendations to Congress on copyright policy and plays an important role in shaping new copyright legislation. I think because of that, the question about where the Office resides has turned into a sort of proxy debate about the broader question of who should be exerting control over the Office and over copyright policy more generally. Putting a finer point on the issue, Ralph Oman and Marybeth Peters—the two Registers of Copyrights who immediately preceded Pallante—recently sent a letter to the leadership of the two relevant House and Senate committees. Oman and Peters are apparently not fans of Library of Congress supervision, and this quote sums up their overall point:

[T]he competing missions and differing priorities of the Library and the Copyright Office have increasingly emerged as a source of tension. . . . [T]hey are inevitable given the divergent roles of the two organizations. Stripped to its basics, the choice is stark: Does Congress want modernization and independent copyright advice straight and true from the expert agency, or does it want copyright administration and advice filtered through the lens . . . of the head of the national library?

Their letter is loaded with some bad assumptions, and so earlier this week and thanks to Duke Libraries’ director Deborah Jakubs, Duke Libraries sent this letter to Congress to correct some of those inaccuracies and makes the case for why the Library of Congress is the best choice of home for the Copyright Office.

Libraries and the copyright system

The Duke Libraries letter first addresses the idea that there is an irresolvable conflict between the missions of libraries and the Copyright Office. Oman and Peters suggest that Libraries have only a “limited goal” of “offering to the public the greatest possible volume of material, often at little or no direct cost to their patrons.” That’s a pretty narrow conception of what libraries do and suggests a bias with respect to copyright that just does not exist. Here’s how the Duke Libraries’ letter responds:

Libraries like ours have perhaps the most well-rounded and balanced relationship with copyright of any group of institutions in the world. Duke Libraries, like many other libraries, spends millions of dollars every year on services for our faculty and students to help them navigate the legal, technological, and economic choices they face as creators. Our libraries partner with those creators . . . on publishing. Duke Libraries also administer the rights to thousands of works for which we own copyright, primarily in our rare book and archival collections. . . . Duke Libraries also invest millions of dollars each year into the publishing system by purchasing content and supporting new and emerging publishing platforms. . . .[W]e now spend even more money on developing strategies to carefully respect the rights of copyright owners as we seek to preserve and provide access to those materials in forms that are useful to researchers.

While all of that is true about Duke Libraries, we’re not unique. This is what libraries do, and to suggest a much narrower mission as Oman and Peters do obscures the far more balanced role that libraries play within the copyright system.

Impartiality of the Copyright Office

The second issue the Duke Libraries letter addresses is this idea that the Copyright Office has acted impartially and that more oversight from the Library of Congress would corrupt that impartial approach. As the letter points out “in recent years and without meaningful Library of Congress oversight, the Copyright Office has drifted into a markedly content industry-centric approach to copyright policy while at the same time failing in its core function of promoting and making accessible copyright registration information.” Highlighting some of the recent failings of the Office in its policy positions—some of which have recently and very publicly been rejected by the courts—and the lack of focus on core registration functions, the letter concludes with this:

The Office has not offered for some time the “straight and true” copyright policy advice that Oman and Peters suggest it should, nor has it adequately worked to achieve its core function of facilitating registration information. . . . The solution for the Copyright Office is not less oversight from the Library of Congress but more. Leadership from an experienced administrator such as Dr. Hayden who can guide the Office back to a position of impartiality and to a focus on its core function is a welcome development for Duke Libraries and for the public that has been so often ignored by the Office in favor of the content industry.

As many others have pointed out, copyright’s Constitutional purpose derived from the IP clause, “to promote the progress of science and [the] useful arts”, closely matches our own mission as a university and library. Like most university libraries, Duke Libraries are at the heart of creative process at our university. Likewise, the Library of Congress should stand at the heart of our national system to promote progress and creativity.

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

November 21, 2016 David Hansen, JD 5 Comments

Dave Hansen, Director of Copyright and Scholarly Communications

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

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

Publishers’ Brief on Appeal

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

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

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

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

Balancing the Fair Use Factors

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

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

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

Market Harm Above all Else?

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

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

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

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

Takeaways for Educational Users

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

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

April 1, 2016 Kevin Smith, J.D. 5 Comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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