Open Access and Institutional Repositories, Scholarly Publishing

The Worm at the Core (and several mixed metaphors)

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Last week, I was a last minute substitute speaker at a “Master’s Class” for mid-level managers in the STM publishing business.  I was invited to speak on “The Battle for Copyright and Digital Rights” opposite Mark Seeley, who is a Senior VP and Legal Counsel for Elsevier.  That Mr. Seeley was a kind and gracious “opponent” was not a surprise, nor was it surprising that we reached a state of civil disagreement on some copyright issues. What did surprise me, however, was the fact that the members of the class were less interested in the copyright issues we raised than they were in talking about open access and, especially, the motivations that led Duke’s faculty to adopt an open access policy.  Many of them seemed to be working hard to wrap their minds around the idea that faculty authors would elect a distribution system that bypassed, or at least paralleled, the traditional publication system.

The day after this discussion came the announcement from the University of California that they felt pushed to cancel their contract for digital resources with Nature Publishing Group and to ask their faculty to decline to submit to, or edit or review for, NPG publications.  Dorothea Salo has a great blog post about this situation in which she muses about worms turning. Indeed, this kerfuffle does suggest that things are changing quickly in the way scholars distribute their own work and get access to the work of others.  Dorothea’s point (albeit with her metaphors of turning worms and pierced veils getting rather mixed) that the last veil being pierced in this argument is about journals as non-substitutable goods is an excellent one.  Dorothea quotes a UC scholar as saying that where a work is published these days really doesn’t matter much, and notes that this is a huge disruption in the norms we have come to rely on.

For me, the coincidence of these two events really suggested a fundamental truth that has not been well articulated in the debates about scholarly communications; what I have called the worm at the core, to appropriate Dorothea’s original metaphor.  From both the publishers’ side, illustrated by reactions at the STM class, and from the scholars’ side we are seeing a growing awareness that the publishing industry needs scholarly authors much more than scholarly authors need traditional publication, at least for distribution of and access to scholarship.  This is a big worm eating at the core of the traditional environment for scholarship, and the sooner we come to terms with its implications, the better.  Open access policies and outlandish pricing policies at journals are both pushing us in a new direction, and it is really incumbent on scholars, and the libraries that serve them, to manage the journey.

Copyright Issues and Legislation, Technologies

Justice Stevens caught in the copyright crossfire

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By Will Cross

About a month ago Kevin wrote about the retirement of Justice Stevens and quoted an excellent article called “Justice Stevens Invented the Internet.”  It argued that the development of the internet relied on Stevens’ opinion in the Sony Betamax case, and the standard it established that, so long as a device is “capable of substantial non-infringing uses,” the manufacturer of the device cannot be liable for infringing copies made by consumers with the device.

I could not agree more with this argument and to Justice Stevens’ credit I would add his majority opinion in Reno v. ACLU, which welcomed the Internet under the aegis of the First Amendment and struck down a requirement that “adult” online expression must be sent exclusively to users over the age of 18, a requirement Stevens noted would be technologically impossible to comply with.  Given that technological barriers will not work, the only alternative is to simply limit expression.  Regulation, Stevens wrote, may not “reduc[e] the adult population . . . to . . . only what is fit for children.”

Taken together, these cases established the legal framework that supports the internet as an open and free medium where users are protected from liability for unforeseen bad or inappropriate uses of expression made by others.  Technology and expression must be taken on their own terms, even if third parties subvert them for bad ends.

Unfortunately, this principle of an open internet has been steadily eroded by blowback from copyright firefights, particularly one that arose even as Stevens was drafting Reno: file sharing.

After a decade of fruitless lawsuits and on the heels of another legal victory, this time against file sharing service Limewire, content owners are gearing up for yet another round of lawsuits this week.  The problem with this bellicose response to file sharing is that Justice Stevens’ open internet is increasingly caught in the crossfire.

This response to file sharing has taken a significant toll on the efficiency of the legal system and has bent the law badly out of shape.  As Eric Goldman’s blog, cited above, notes, “there is ‘normal’ copyright law and then ‘P2P file sharing’ copyright law, and it’s a mistake to think those two legal doctrines are closely related.”  Content owners have repeatedly pushed for extreme, or simply non-legal, readings of copyright and fair use, most famously in the Lenz case dealing with bogus takedown notices (and a dancing baby) and the recent Jammie Thomas case dealing with excessive statutory damages.  They are also attempting to rewrite the already draconian DMCA, an irony matched only by the sublime absurdity of content owners suing one another over pirated anti-piracy technology.

More troubling, these lawsuits have also begun to target not only users but service providers.  Content owners have been overburdening ISP’s  with automated discovery requests for years and have recently begun to attack ISP’s directly.  They have also sought an injunction against the bandwidth provider for file sharing service The Pirate Bay, essentially arguing for fourth party liability.

This erosion in Justice Steven’s principle of an open internet reached a new low with a California court’s recent injunction against BitTorrent search engine IsoHunt requiring it to remove all links pointing to infringing files. This, of course flies in the face of Stevens’ principle about non-infringing uses and requires IsoHunt to have the same infeasible knowledge and control over users as was struck down in Reno.   If the Pirate Bay case is the equivalent of suing AT&T for an obscene caller’s ramblings then this case is akin to requiring that Sprint disconnect anyone whose phone might be used for unlawful acts even before those acts have been identified as unlawful.  It cannot be done and the only alternative is to shutter the technology completely or simply bend over backward to accommodate any and all measures litigious content owners may seek to employ.

This also ignores the substantial non-infringing uses of file sharing services similar to those that saved the VCR in Sony.   These uses include an increasing number of academic uses.  Kevin discussed the potential cost of attacking file sharing to higher education in a 2007 post on this topic and since then file sharing continues to be used to transmit academic materials including textbooks and journals.  Many universities have begun to move this sharing into an authorized practice with a service called iTunesU that facilitates academic sharing.  Under pressure from content-owners, however, and despite the developing market for academic file sharing, Oxford University has banned all file sharing, even that which explicitly legal.   With ACTA’s heavy artillery on the horizon the firefight only seems to be escalating.

Again, illegal file sharing is a real problem but the current move to eradicate anything that might be used unlawfully is in danger of reducing Justice Stevens’ open internet to “only what is fit for children.”  The war against file sharing is harming legitimate uses such as academic sharing and has an economic cost, and a cost to public safety.   It also has a cost to public knowledge, as poetically illustrated by Princeton’s demand that web sites remove the senior thesis of Justice Stevens’ replacement Elena Kagan, in order to protect Princeton’s market to sell the public writings of the next Justice.  With technology and expression in the cross-hairs even an unlikely total victory against illegal sharing seems to offer at best a Pyrrhic one for scholarly communications and society.

international IP

Connecting the dots

Several months ago we discussed an article about international copyright that suggested the possibility that the developing countries who are part of the World Intellectual Property Organization (WIPO) could seek to reverse the trend toward harmonizing IP protections at a very high level by “de-harmonization.” Such de-harmonization would by directed at exploiting the space provide for limitations and exceptions in the major international copyright agreements in order to benefit local circumstances.  That article focused on the three fastest growing economies in the developing world – Brazil, Russia, India and China — the so-called BRIC countries.

Now comes this news release announcing that India and Brazil, along with 16 other countries from the developing world, have grouped together to more effectively represent the needs of such countries at WIPO.  As the announcement says, these 18 countries “aim to transform the World Intellectual Property Organization… [in]to a U.N. agency helping members achieve development goals through a balanced and calibrated use of intellectual property.” It sounds like these nations are taking to heart the advice that the WIPO and WTO treaties and agreements leave them room to adjust policy in ways that best suit their own needs, rather than accepting a “one size fits all” approach that favors the rich, content-producing nations.  The news release goes on to complain that strong intellectual property rights protections are being used to deprive people of needed medicines and to “steal developing countries’ traditional knowledge.”

These complaints are familiar to those who follow the negotiations at WIPO even in a cursory fashion, and there has been a new emphasis in recent months on the “Development Agenda” at WIPO and on how to redress the balance between protection of existing rights and access necessary for development.  The formation of this new block within WIPO is clearly an effort to move the organization along this path more quickly.

The timing, however, also makes it very hard to ignore that this new IP group, as well as the emphasis on development that it has been formed to foster, is one of the major factors in the decision by a number of developed nations to forgo WIPO negotiations in favor of the “pluri-lateral” approach being taken with ACTA, the Anti-Counterfeiting Trade Agreement.  As we have explained before, the ACTA treaty is being negotiated amongst a group of wealthy nations outside of the WIPO process.  Such negotiations are allowed by the WIPO treaties, although it is debatable if such sweeping tightening of IP enforcement was ever envisioned when those agreements were negotiated.  In any case, Michael Geist and others have argued that ACTA was born out of frustration with WIPO and the attention that was being paid there to the concerns of poorer countries who fear that rigid enforcement regimes will stifle their economic growth.

The specter raised by these developments is a fragmentation of the international IP community, with rich nations negotiating only amongst themselves for ever stronger measures to enforce intellectual property rights and developing countries talking only to themselves at WIPO about how such enforcement stifles growth and threatens lives.  When we connect the dots that these developments represent, it is an unfortunate and even frightening picture that emerges.

Copyright in the Classroom, Fair Use, User Generated Content

Transformation and teaching

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On Wednesday the Duke Libraries’ Instruction and Outreach department held a retreat on the topic of “Digital Literacies.”  The excellent keynote speaker for the event was Ellysa Cahoy from Penn State University.  As part of the retreat, I spoke very briefly about copyright issues around the use of digital media.  My comments ended up being very different than what I originally planned, based on the things I heard from Ellysa and the Duke faculty who participated in a panel talking about the kinds of new media assignments they were using.  Ellysa has some kind words about the retreat in general, Duke’s superb instruction librarians, and my remarks in this blog post.  On that latter topic, I want to take a minute to clarify and expand on what I said, because I believe the message is quite important.

As Elyssa says, my fundamental message was that faculty who are using creative assignments involving new media, and the librarians who work with them, need to embrace the space given to them by fair use.  I hasten to add that I did not say that they should “not worry about using copyrighted material,” but I did encourage a degree of reflection about the nature of the use in question.  Events like the lawsuit against Georgia State over electronic reserves and the news coverage about the conflict between UCLA and AIME over streamed digital video have a tendency to make librarians very nervous about all uses of copyrighted works.  But all uses are not the same; our courts have been very receptive over the past three decades to uses that are perceived as “transformative.”

Transformative uses are, broadly speaking, uses of copyrighted works which create something new that has a different purpose than the original work involved.  Transformative works are often identified as those which do not create any kind of market competition with the original work.  Thus a parody of a 1950’s classic song by a 1980’s rap group is a transformative use of the original, and an historical work about the Grateful Dead makes a transformative use of original concert posters for Dead concerts when it uses them to illustrate a time line.  One does not buy a history book instead of attending a concert, nor does one buy 2 Live Crew’s music as a substitute for Roy Orbison’s (although a truly eclectic music fan might buy both).  In a fair use analysis, transformativeness strengthens the argument for fair use based on both the first fair use factor – the nature and purpose of the use – and the forth factor — the effect of the use on the markets for the original.

When students (or faculty) use media like film, music and video clips to create remixes, mash-ups and other kinds of commentaries, this is a strong example of fair use.  These uses are quite different than the largely iterative ones like scanning a book chapter for e-reserves or streaming a video through a course management system.  These may or may not also be fair use – that is a highly controversial issue – but they are very different from creative and transformative uses.  When I realized that the retreat was discussing such student assignments as using advertisement illustrations in “story board” essays about popular culture or re-mix film and music clips to create PSAs for local non-profits, I changed the focus of my remarks from warnings about iterative uses to encouragement of these transformative ones.  To my mind, these kinds of uses, where new scholarly and social valuable works are being created, are at the heart of the rationale for fair use in our law.  While copyright law often seems to inhibit pedagogy, this is one area in which the normative interpretation of fair use offers strong support for creative teaching.

One thing I wanted to stress about transformative use and student assignments was the way in which the fair use analysis actually encourages good scholarship.  It seems clear that the more integrated copyrighted material is into the basic argument or message of the new work, the stronger the argument for transformative fair use will be.  To take one example, music added to a student-made video simply to produce a more pleasing product is much less likely to be fair use than music which contributes to the overall theme of the work in a direct way.  Thus, a conversation with student and faculty creators about copyright and the importance of thinking through the fair use analysis is not only valuable in itself, it can actually support the creation of better, more coherent scholarly work.

Scholarly Publishing, Technologies, User Generated Content

Facing the Future of Social Media

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By Will Cross

As a scholarly communications librarian I am naturally excited when scholars embrace a promising new method of communication.  As such, I was delighted to see this new study published in the Chronicle of Higher Education.  Although academia is just scratching the surface of social media use, this study of almost 1,000 professors indicates that roughly 80% are already using social media and about one-third use social media to communicate directly with peers and students.

Of course this blog provides one vital (in every sense) example of such communication, but more interactive tools such as Facebook are also being used by libraries and scholars to promote academic discourse.  Even Twitter has recently been used to address scholarly issues, as with the recent coordinated protests against ACTA.  Scholars have also begun to study Twitter as a source of data for scholarly analysis similar to telephone surveys.  These nascent uses certainly do not present an imminent threat to replace traditional scholarly discussion and publication, but they do suggest the potential for new forms of communication among scholars that can act as a valuable adjunct.

As we enter this brave new world, however, we must be cautious; moving scholarly discourse into digital and commercialized spaces has costs that come along with the benefits.  The most visible example of this fact is the recent conflict over Facebook’s privacy settings.  As the Electronic Frontier Foundation’s Timeline describes, what began as a private tool for communication among friends and colleagues has essentially been transformed into a clearinghouse of personal data that is being mined and sold en masse to advertisers.  This has occurred based in large part on changes in the “default” settings, well-illustrated by this graph, and compounded by the fact that personal information continues to be made available and mined after it is removed from a user’s page and even when a user quits Facebook altogether.

Facebook is the most publicized offender, but more traditional “new media” present similar problems.  As ebook readers pop up on iPads and Android phones it has been revealed that ebook reading habits, personal annotations and highlights are being recorded and aggregated.  Even scholarly darling Second Life has been the subject of a recent class action lawsuit over ownership of content created within the “virtual world.”  This is similar to Facebook’s ill-fated 2009 claim to “perpetual worldwide ownership” of all content that was eventually rescinded when users revolted.

As scholarly communication, and perhaps eventually scholarly publishing, moves into these new arenas we must decide how to respond to these challenges to personal privacy and authorial ownership.  Some have argued for an open alternative to these commercial entities that must, at the end of the day, focus on their bottom line rather than social or scholarly good.  At the same time, businesses are looking to technology to control access and retain all information in social media.

Along with these technological solutions many groups are focusing on providing users with information.  The American Library Association has put out an excellent video called “Choose Privacy” that aims to educate users about these issues so that they may make informed decisions.  Business Week’s list of Ten Reasons to Delete Your Facebook Account goes a step further to argue for a specific action.

However we address these issues we must be cognizant of how social media change the norms of expression.  The Scholarly Kitchen has an excellent discussion of social media and privacy that highlights the way social media such as Facebook are transforming social norms about privacy.  Since these norms themselves influence privacy law and the Fourth Amendment’s complex and often-misunderstood “reasonable expectation” test, today’s social practices may drive tomorrow’s legal changes.

At the same time, the Scholarly Kitchen article cites a study describing the necessary tradeoff between sharing information and sacrificing some privacy.  The challenge for scholars and librarians, I would argue, is to find a balance that permits the appropriate sharing of information but retains the privacy and ownership values necessary for intellectual exploration, reflection and creation.  As is so often the case with new modes of expression, we must be careful to import the social, cultural and legal norms of scholarship that we need while leaving room for new opportunities to flourish.

Authors' Rights, Open Access and Institutional Repositories

Policy consequences

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We are trained these days to dread “unintended consequences” whenever we make decisions; it is a fear that sometimes leads to paralysis.  But not all unintended consequences are negative, and I want to take a moment to celebrate some unexpected things that have resulted from the adoption of an open access policy by the Duke University faculty back in March.

The two biggest consequences so far have been a flurry of activity in the Duke Libraries and some welcome attention from outside the University.

In the latter category, this interview with Paolo Mangiafico, which was posted recently on opensource.com, is a superb summary of the rationale behind the policy and the steps we are taking to implement it.  Paolo, in his rather unique position at Duke as Director of Digital Information Strategy, provided the leadership that was necessary to organize, draft and advocate for the open access policy.  Paolo himself is a unique combination of high-level IT skills with a deep understanding of policy options and consequences, and his description of our OA policy is as articulate as any I have seen.

In the interview, Paolo talks about the decisions that must now be made, both as a matter of technological infrastructure and in terms of re-imagining library services.  Thus his interview nicely encapsulates the reasons behind that flurry of activity I spoke of above.

Another particularly exciting consequence for me personally has been an invitation to speak at the the 8th Berlin Conference on Open Access on the legal issues involved in open access.  The invitation letter clearly indicates that Duke’s new policy is one of the reasons for this opportunity, and I am honored to be invited to this influential gathering, which drafted the Berlin Declaration on Open Access back in 2003.  In 2010, the Berlin Conference will be held in Beijing, China, which deepens my excitement, both because I have never been to China and because of the opportunities  the conference offers to learn about the progress of the open access movement in Asia (although the activities of SPARC Japan are already well-known).  I hope I shall see many friends from North America and Europe in Beijing, and I look forward to the opportunity to meet many new colleagues and friends.

Sometimes unintended consequences offer really delightful surprises.

Copyright Issues and Legislation, Fair Use

Catching up with the First Amendment

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Note — This post is written by Will Cross, this year’s intern in Duke’s Scholarly Communications office.  Will is an attorney now in library school, and comes to copyright law from a deep commitment to First Amendment values.

Last August Kevin wrote about the lawsuit between author J.D. Salinger and the author of a new book; Coming Through the Rye.  This work, which uses the interplay between a 76 year-old character named “Mr. C” (a clear allusion to Salinger’s Holden Caulfield, now grown old) and Salinger himself to create a work of “meta-commentary” on the relationship between the famous author and his iconic creation, was originally found to be an infringement of Salinger’s Catcher in the Rye.  Last week Kevin and I were delighted to see that the Second Circuit had reversed the district court’s decision until we read the opinion.

Rather than reconsidering the fair use and First Amendment issues raised by the amicus brief that Kevin discussed, the court rejected fair use and remanded  based only on a procedural issue.  Although Rebecca Tushnet suggests that the opinion includes some “nice language” about the First Amendment issues, I came away from the case very disappointed.

The opinion seems to give short shrift to the fair use argument itself, particularly since this seems to be exactly the sort of literary “criticism or comment” at the heart of fair use.  As another commentator has noted, it also illustrates just how slippery and troublesome it can be to draw legal distinctions between “criticism” or “parody”  (which are clearly fair use) and “satire” or unauthorized “derivative works” (which are not).  As books such as this and The Wind Done Gone make clear, the line between protected parody and unprotected satire can be difficult to measure, particularly for judges whose expertise may not include literary criticism or analysis.

My larger concern, however, is what cases such as this may mean for free expression.  If an author can stop comment on his work or an investment bank can get an injunction from criticism based on trademark then IP laws designed to promote creation and discussion begin to serve the opposite purpose.

Scholars such as Neil Netanel have argued for years that this tension is significant and due greater consideration by courts, who generally defer to Congress in this area.  As Netanial notes in his seminal article “Locating Copyright Within the First Amendment Skein”, courts have generally been unwilling to directly address the relationship between copyright and the First Amendment based on three presumed “safety vales”: copyright’s limited term, fair use, and the idea/expression dichotomy.

In 2001 Netanel argued that that these protections may be insufficient to safeguard the interests implicated by turning public expression into private property and since then things have not improved.  The copyright term has been extended by Congress and the Eldred Court suggested that such extensions may stretch to “forever minus a day.”  Scholars such a Yale’s Jed Rubenfeld have demonstrated the ongoing difficulties with putting the idea/expression dichotomy into practice.  And cases like this one suggest that fair use itself may be insufficient to protect expression, particularly where copyright boundaries are unclear or one party is more respected or sympathetic than the other.

Of course the Second Circuit’s decision may be appealed and some commentators have suggested that this case may lead to a mandatory licensing scheme similar to music rights.  But whatever the outcome, copyright’s effect on free expression must be taken seriously as an interest protected by the Constitution and resting at the heart of the law and policy that under girds copyright itself.

Copyright Issues and Legislation, international IP, Technologies

Act 2 of the ACTA controversy

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When I last wrote about the Anti-Counterfeiting Trade Agreement, or ACTA, it was primarily to complain about the secrecy in which the negotiations were taking place.  Earlier this month, however, the US Trade Representative (who had opposed release) finally caved in to pressure from at home and overseas and agreed to the release of a draft of the proposed agreement.  Much of the released text is in square brackets, indicating that full agreement has not been reached, and there are several points where different options on a particular matter are outlined.  Nevertheless, enough is now clear about ACTA to be quite sure that the complaints raised before the release were fully justified.  Now the issue is not simply that we do not know what is in ACTA, it is that what is in ACTA is a series of very bad ideas.

One of the most reliable guides to ACTA continues to be Canadian law profess Michael Geist, who discusses some of the provisions and the problems with ACTA in this blog post and in a video which can be found here.  Geist points out very effectively that, in spite of assurances, ACTA is not just about enforcement of existing IP law but would mandate substantive changes in national IP laws.  Also, as he explains, it is not just about commercial infringement, regardless of what we have been told.  More about that in a minute.

One of the frequent claims about ACTA is that it would mandate a “three strikes” regime that would require ISPs to “terminate” subscribers after repeated accusations from the content industries that that user had committed infringement.  Such termination would occur without judicial process.  Defenders of ACTA have insisted that these claims are not true, and now we can see what they meant.  The released text does not require termination, but it does offer a safe harbor for ISPs, such as we have in the US, only if the ISP implements security measures.  The only example given of an acceptable security measure, of course, is a three strikes termination procedure.

To organize a summary of the issues raised by the draft ACTA text, I want to look at two groups of problems, one procedural and one substantive.

Procedurally, ACTA is a blatant attempt to remake IP law without having to involve either the World Intellectual Property Organization (WIPO) or the United States Congress.  It appears that the WIPO does not please the IP industries because of it’s transparency and because of the attention it pays to the needs of developing nations, for whom high and impenetrable IP barriers are not conducive to growth.  These industries pull the strings of the U.S. Trade Representative, and an international agreement is born that is negotiated in secret and would set up an oversight structure independent of the WIPO.  As two law professors point out in this editorial from the Washington Post, the agreement, with it’s substantive changes in national copyright law, would also seem to violate the US Constitution if it is approved here as an executive agreement without the involvement of Congress.

It is constitutional concerns that also frame my substantive objections to ACTA, since many of the things it would require signatories to enact in their national laws seemed to conflict with the Fourth, Fifth and Sixth Amendments to the U.S. Constitution.  By agreeing to ACTA, the U.S. would derogate due process and substantive civil rights in regard to this one area of law.  The best analysis of these problems can be found in a two part post by Margot Kaminski, here and here on the Balkinization blog, but I will offer a brief catalog here.

In the first place, the three strikes termination provision discussed above would result in citizens being disconnected from the Internet on the basis of mere accusation.  This is a significant reduction in the usual standard of evidence for a claim of infringement.  And ACTA has provisions that would increase the level of remedies available a great deal; termination would only be the beginning.  When there is a court proceeding, the damages could be based on any “reasonable” valuation suggested by the rights holder.

In addition, rights holders could seek injunctions without involving the other party; so-called ex parte injunctions would be available.  Finally, there would be several provisions allowing seizures of allegedly infringing property, including authorization for border agents to seize material at the request of rights holders.  This provision would make the U.S. Border Patrol into a sort of private police force working for the content industries, but at taxpayer expense.

The most troubling provision, I think, is where ACTA would require the U.S., and other signatories, to increase the criminal penalties for willful infringement.  The U.S. already has such penalties, but the ACTA standard would expand the definition of “willful” to explicitly include private, non-commercial copying if done on a large scale.  And ACTA says that criminal penalties “shall include” the possibility of prison.  Not satisfied with million dollar judgments against private citizens who share unauthorized movie and music files, the content industries now want to send them to prison.

Many of the enforcement provisions of ACTA would substantively alter U.S. law and would provide a heavy advantage to plaintiffs, one that is not available to those bringing other types of claims.  We are being asked to change our law in a way highly advantageous to one special interest based on an agreement negotiated in secret and without any of the legislative checks and balances that would normally be in play. If the office of the U.S. Trade Representative thought that releasing this draft text would put an end to controversy, they were badly mistaken.

Pre-publication update:  After this post was written, the Library Copyright Alliance released this analysis of ACTA by Jonathan Band.  It is well worth reading for those who would like a sustained analysis of the continuing problems with ACTA.

Copyright Issues and Legislation

Whither the Supreme Court?

The direction of the Supreme Court is on many people’s minds these days, following the announcement that Justice John Paul Stevens will retire, even though most people admit that his replacement will not sway the political alignment of the Court very much.

One area that is always unpredictable is intellectual property law, because the usual distinctions between liberal and conservative , Republican and Democrat, simply break down.  A case in point is the famous decision in the Sony “Betamax” case that found that home video recording was fair use.  Justice Stevens wrote the majority opinion in that case, which transformed personal technology use and launched a huge revenue stream for the movie companies in spite of their own attempts to suppress the VCR.  In that decision, Stevens was joined by unlikely allies, including Justices O’Connor, White and Burger.  Equally strange bedfellows — Justices Marshall and Rehnquist — found themselves in agreement in the dissent.

The Sony decision had a greater impact on the everyday lives of Americans than many people realize.  It is nearly impossible to imagine what life would be like today if the courts had issued an injunction against the marketing of VCRs, which was the remedy the movie industry first requested.  By the time the case reached the Supreme Court an injunction was no longer on the table, but the impact of Steven’s decision was still immense, and it is cleverly expressed in the title of this piece by Jonathan Band, “Justice Stevens Invented the Internet.”  Jokes about Al Gore aside, this title is not really hyperbole; as Band points out, without the Sony decision, the development of the Internet would have been greatly impeded.  A similar point, with a lot of additional detail about Steven’s other IP decisions and how the majority in Sony was formed, is available in this article about Stevens from the Corporate Counsel site.

So it is hard to predict how a replacement for Justice Stevens will influence the court on copyright matters, and it will probably remain hard even after we know the name of the nominee.  One thing that is certain is that there will be a copyright case before the Court when it opens its next term in October 2010.  Last week the Court finally granted certiorari in the case of Costco v. Omega, about which I wrote last year.  There are some up-to-date details on the case here on the Exclusive Rights blog, but the basic controversy is about whether or not the US “First Sale” doctrine applies to distributions in the United States of copyrighted material that is manufactured overseas and by a foreign company.

There are two very interesting things about this case.  First, the Court initially could not decide whether or not to hear the case, and they asked the Solicitor General of the United States for an opinion.  Late last month she (Elana Kagan, herself apparently a contender to replace Stevens) recommended that the Supremes not hear the case, essentially suggesting that the lower court opinion that I and others fear could have some very negative effects be left in place.  It is odd for the Court to act so quickly in defiance of advice they had sought.  The other interesting thing is that the library community was split on whether or not to file a brief on the cert issue.  Now that the case has been accepted, it will be interesting to see how the library associations line up on the issue, and what they choose to do.  If readers want details so they can form an opinion about what the best course might be, there is lots of information in the links above.

Copyright Issues and Legislation, Fair Use, Scholarly Publishing

Wishful thinking at bar

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There has been a discussion recently on the excellent e-mail list that has developed around Cornell University’s Institute for Computer Law and Policy about the Georgia State University lawsuit, in which GSU is being sued for alleged copyright infringement.  One of the points made is that the infringement allegations involve both electronic reserves administered by the GSU libraries and readings provided to students directly by faculty using the campus course management system.  So this is really a thoroughgoing assault on universities’ provision of course content for students under a fair use claim.

The discussion has led me to consider what outcome the publishers are seeking here and whether a ruling against fair use, which would clearly be disastrous for educational institutions, would actually be good for academic publishers.

The answer to the first question – what do the publishers want – is pretty easy.  They are seeking a massive increase in the revenue they get from permission fees.  If every e-reserve or course management use of even small excerpts from copyrighted works actually generated a royalty payment, publishers would get a windfall.  But that is a very big “If.”

First, it is important to understand that the current permissions market does not work well, especially when the reality is compared to the glowing descriptions of it found in the publishers’ filings with the court in the GSU lawsuit.  I have written before (here, for example) about the problems regarding whether or not the Copyright Clearance Center actually has the rights it is selling.  But I also believe that the pricing of permission fees indicates a huge market failure.

Today I asked our e-reserves staff to give me some random examples of permission fees that we have recently paid, from which I will select two.  For the 2007 book “No Caption Needed,” we paid $150 for permission to make just 17% of the work available to 12 students.  This amounts to over $12 per student to gain access to less than 1/5 of a work which sells for $35 retail.  For an older work – “Dealing with Terrorism – Stick or Carrot?” from 2003 – we paid about $10 per student to make 21% of this $30 book available.  These are not extreme examples; in fact, one of the samples fees exceeded $1,000 — over $25 per student.  Such costs are particularly egregious when one realizes that, by percentage, permission costs are higher than retail prices, that there is no marginal cost for the publisher involved and that these fees only authorize access for a single semester.   So, as we are asked to pay ever-increasing costs for decreasing value, it seems that an unsustainable system is being created.

If the publishers were to get a favorable (for them) ruling in this case, I think we can anticipate one of three responses from colleges and universities, none of them actually in the long-term interests of publishers.

First, some schools might elect to shut down their e-reserves systems, curtail what faculty can do in course management systems, and simply live with the reduced availability of teaching materials.  This would be a strong option, I am afraid, for many smaller institutions, and it would be very bad for education.  Indeed, that is precisely the specter raised by Gustavus Adolphus Librarian Barbara Fister in this recent article from Library Journal. This course would cause whatever income publishers are now deriving from those schools to dry up.  Worse, it might foster the development of peer-to-peer sharing of “home-made” scans of readings amongst students, which would exacerbate the present situation by removing the element of “adult supervision” that makes fair use decisions (even when they are ones with which publishers disagree) and pays for permission when fair use is not applicable.

Second, schools could decide to impose a student fee to pay for the sudden increase in permission fees. Some of the plaintiff’s court filings suggest this as an appropriate alternative.  Leaving aside the loud objections from students, this would likely also get the attention of Congress, which is already concerned about the cost of higher education.  Recent laws have required us to report on the cost of textbooks; see Fister’s article, as well as this story about students opting for cheaper alternatives or, frighteningly, just foregoing textbooks entirely. A new fee for access to digital teaching materials would seem to make Congress’ worst fears come true.  Indeed, in the long run, this could be a good outcome for higher education, if Congress were moved to create a provision for compulsory licensing for educational uses and place the task of setting prices in the hands of the Copyright Royalty Board.  Then, at least, we would get controlled and predictable permission fees.

Finally, some institutions would probably use money from their collections budgets, where there is still money in collection budgets, to pay for permissions.  This, of course, is robbing Peter to pay Paul; the net gain for publishers is minimal, but the cost to society is great.  Increased permission fees for material that is already published and available will inevitably decrease the monetary incentives for new authorship, since it will further constrict the market for such new works.  It is cheaper, of course, for publishers to collect fees on older works than it is for them to actually bring new works to market, but the entire copyright incentive is undercut by that logic.

Without a outcome in sight that would genuinely benefit the publishing industry, one has to conclude that the primary force driving this lawsuit is either emotionalism based on an unfocused sense of ownership violated – “It’s mine, its mine,” as children sometimes lament – or, at best, on purely wishful thinking.

Discussions about the changing world of scholarly communications and copyright