Results tagged “Georgia State”

11th Circuit Rules On Georgia State Fair Use Case

The 11th Circuit Court of Appeals issued its ruling today in Cambridge University Press et. al. v. Patton - otherwise known as "the Georgia State case." This is a case in which academic publishers (Cambridge UP, Oxford UP, and Sage) sued a public university for use of excerpts from books in online e-reserves and course websites. (Lawsuits funded in part by the ostensibly-neutral Copyright Clearance Center.)

Previously, the District Court ruled that most of the uses in question were fair use. On appeal, it didn't look like things were necessarily going well for academic users. Indeed, today's ruling reverses the lower court's rulings, vacates some results of the ruling, and remands the case back to the lower court for reconsideration in light of the corrections made in today's ruling. But given the possibilities contemplated after oral arguments, (and heck, given the concurring opinion attached to this ruling) things definitely could be worse!

Excellently Good Things

  • The court's opinion confirms that the 1976 Classroom Copying Guidelines are not law, and not an appropriate lens through which to consider fair use in course contexts. (The court also affirms that even though the Guidelines are maybe informative, they were originally intended as a floor, not a ceiling, on fair use.)

    Maybe this isn't great news to the many folks who have (quite correctly) long-since abandoned applying any mental energy to the outdated Guidelines. However, I regularly encounter librarians, library workers, teachers, and other educators who have received no other information about fair use - and often, these folks have explicitly been trained that the Guidelines are the One True (and complete maximum) Way to Know Fair Use in classroom contexts. (Oddly enough, many of them have also received their only copyright training at no cost, from generous publishers...) Having an affirming court opinion to refer to that clearly refutes the applicability of the Classroom Guidelines is quite a blessing, from my perspective.

  • The court extensively discusses the public purpose of copyright law. Section B of the opinion (page 46-55) is a masterfully written, quite clear overview of the theoretical underpinnings of U.S. copyright law in general, and of fair use in particular. (I think it's a bit weaker in the second half, but pages 46-50 are really darn good reading.)

    The idea that creator remuneration is -secondary- to the actual purpose of copyright law is often left out of a lot of related public discourse. Most artists (and most lawyers I've met who represent artists or corporate creators) would put creator remuneration at the center of copyright. But this opinion (quoting from many, many other opinions) affirms again that "[p]romoting the creation and dissemination of ideas has been the goal" since the Statute of Anne, and that this is because the creation and dissemination of ideas is a public good. Moreover, the court affirms that "[t]he fair use doctrine also critically limits the scope of the monopoly granted to authors under the Copyright Act in order to promote the public benefit copyright is intended to achieve." 
  • The court agreed that case-by-case, or work-by-work is the appropriate approach to fair use. Since the alternative the Plaintiffs were arguing for was that "a nebulous cloud of infringements purportedly caused by GSU's 'ongoing practices'" were the correct form of inquiry, all institutions that rely on fair use in daily practice got off well here.

  • The court agreed that non-profit educational purposes are especially valuable under fair use law. "Congress devoted extensive effort to ensure that fair use would allow for educational copying under the proper circumstances and was sufficiently determined to achieve this goal that it amended the text of the statute at the eleventh hour in order to expressly state it."

  • The court affirmed that relevance to a pedagogical goal -is- relevant to fair use. (p. 86) (Plaintiffs had argued relevance to purpose was only relevant for transformative, parodic uses.)

  • The court disapproved of Judge Evans' blanket 10%-or-one-chapter rule. While avoiding bright line rules does make life more difficult for end-users, this was a bright line very few people were comfortable with; it limits other interplays such as relevance to pedagogical purpose.

  • The court would not consider the argument (apparently raised late in the deliberations of the District Court) that the correct frame of reference for measuring the "amount" of the work being used was a single chapter, rather than the whole book. Since the Plaintiffs primarily went along with arguments about how to determine the number of pages in the book, in order to determine how much of the book each chapter was, the court agreed that the discussion had to be had in terms of how much of the book each chapter was, not how much of the chapter.

    Something to remember for your litigation practice, law students. Raise it too late, and the argument's gone.

  • In addition to rejecting the applicability of the Classroom Copying Guidelines, the court also rejected the coursepack copying cases as binding authority, or apparently even as very persuasive. They're vaguely acknowledged, but not followed.

  • The court soundly rejects the idea that excerpts from books substitute for sales of the -actual books-. (p. 94) Unfortunately but unsurprisingly, it then goes on to confirm that unlicensed excerpts do substitute for sales of licenses-to-excerpt. But, also happily, it does affirm that "the ability to license does not demand a finding against fair use." (p. 95)

Not-Surprising Things

  • Section B of the opinion is, as I said, a masterful overview of the theoretical underpinnings of U.S. copyright law. Since we frame our law as deeply tied to economic incentives for authors to create, it's not surprising that this section has extensive discussion of how allowing too much "unpaid copying" will harm the economic incentives, and thus result in an outcome that doesn't further the public good of ongoing development of new knowledge and ideas.

    Two things bother me about the focus on economic incentives - but these things bother me about U.S. copyright theory in general, not this opinion in particular. The first is that this discussion completely fails to acknowledge the many other incentives creators have for creating. In particular, in academic contexts, creators fairly -rarely- receive direct economic benefits for their copyright ownership; its not entirely absent, but definitely a peripheral motive. But even outside academia, there are a lot of other reasons people create.

    The other thing that bothers me about the focus on economic incentives is that market models don't actually reflect reality. I could get into deep critique of Coase or whatever, but this is a blog, and it's Friday night, and also, there are reasons I didn't go into economics full time. However, even the court in this opinion fully acknowledges that we have to do away with a lot of reality to delve much into fair use and economic incentives: "in making fair use determinations, we must conjure up a hypothetical, perfect market for the work in question, consisting of the whole universe of those who might buy it, in which everyone involved has perfect knowledge of the value of the work to its author and to potential buyers, and excluding for the moment any potential fair uses of the work. Then, keeping in mind the purposes animating copyright law--the fostering of learning and the creation of new works--we must determine how much of that value 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." (p. 51) (emphasis mine)

  • The court affirmed that course readings are not transformative use. Although I respect the acumen of my colleagues who have argued otherwise, this has always seemed fairly straightforward to me. I am heartened that the court -also- affirmed that transformative purpose is NOT required to find that the "purpose" factor favors the user.

  • The court found that Judge Evans erred in making a blanket determination that the works copied were primarily "factual". You have to look at each work individually, and determining the specific balance within a work is a pretty fine job. (The court also said, though, that this factor is not particularly important in the specific fair use analysis at hand.)

  • The Appeals court held that availability of licenses to digitally excerpt a work was correctly determined by the District Court to affect whether there was market harm.

  • Some of the additional considerations that Judge Evans entertained outside of the "four factors" analysis were held to more properly belong within it. (pp. 106-110)

Weird Things

  • There is a weird element of Section B, where the court describes fair use as an "implied-by-law" license that creators grant in return for the grant of monopoly rights through copyright. While I'm familiar with framing fair use as a quid pro quo for protection most of the time, the framing of it as an "implied license" feels very strange.

  • There's a mildly terrifying digression on pp. 67-70 into whether indirect benefits to a non-profit educational user can obviate their non-profit educational purpose (or at least counterweight it.) Thankfully, the court eventually concludes that "If this analysis were
    persuasive, no use could qualify as "nonprofit" under the first factor. Moreover, if
    the use is a fair use, then the copyright owner is not entitled to charge for the use,
    and there is no "customary price" to be paid in the first place."

    However, the court goes on to entertain, and answer in the negative, questions about whether GSU gained reputational benefits from its course copying. If these indirect reputational benefits undercut a non-profit educational purpose, it raises all kinds of odd issues for fair use in contexts like conference presentations! I'm going to think more about this (and do more research into the lines of fair use cases about indirect, noneconomic benefits.)

  • The court observed that industry "best practices" are "not relevant to individualized fair use analysis". That could be a bad thing, because sometimes industry practices are all we have to go on to determine fair use. But it was a fairly glossed-over discussion, and they may have meant just that individual circumstances of a specific use case are more important than overall best practices...

Things I Don't Like

  • The court's emphasis on how important market harm is, and the subtle and nuanced interplay of the four factors is not at all unexpected. I'm not a fan of their holding that, because they are not transformative, the uses in question are highly likely to be market-substitutions, and thus that the market harm factor is especially important. This, too, though, is not unexpected.

    The thing I really don't like is that the court's emphasis on subtle interplays, and especially on the extra weighting of the fourth factor, creates some incredible barriers for the people who actually have to make fair use determinations about course readings - instructors! By placing additional weight on market harm - a factor about which end users have almost no information - the court is creating major difficulties for end users. It would be hard, but not impossible, for many instructors to find out if a license is available. It's really quite out of the question for individual instructors to correctly hypothesize -future- directions of the market...

    I might be less frustrated by this if the court were not quite so emphatic in its embrace of the importance and value of educational fair use elsewhere: "allowing latitude for educational fair use promotes the goals of copyright." Teachers, definitely use fair use sometimes! Just, do so while having sophisticated business analysis skills for companies about which you have no data!"

    [Edit: Please note, my suggestion that nuance creates challenges for end-users does NOT mean that I think "everyone should just pay for everything" is a remotely reasonable or workable alternative. Nuance is at the heart of fair use, and end users can deal with a lot of uncertainty. Just, particularly when its about information end-users -don't have-, it's problematic.]

  • My frustration in the bullet immediately above is also reflective of another broad-scale problem with current copyright laws. They were drafted for a time when, in order to commit infringement on a scale that was noticeable by copyright holders, one more or less had to have some level of industrial-scale resources. It may have been reasonable then to expect that potential fair users could engage in a complex, intertwined, nuanced and even sort of iterative fair use analysis (though query whether courts -did-, in the '70s). But today, users at a much smaller and more individual scale are the target of infringement lawsuits, and if the statutes haven't been updated, legal analyses could at least take that into account.

    Judge Evans' decision in the District Court, while taking some unusual tacks, was in some ways more on track to provide clarity to the actual individuals who have to make assessments about fair use in instructional contexts. The 11th Circuit opinion takes us (and her, my goodness I don't envy the review on remand) further away from that.

    But perhaps legislative reform is a more appropriate path for developing clarity for end-users. (Ha! I crack myself up.)

  • I sort of feel like factor 1 either intertwines with factor 4, -or- factor 3, but both? Really?? (p. 82)

  • Oh, wait, almost forgot. I don't like that this opinion reverses the lower court's opinion. It would've been nice to have a stronger affirmation of educational fair use. Further legal opinions (if they come) are likely to range from a lot to a bit more limiting. But that's not 100% clear, and they may not come.
Judge Vinson's concurrence is a really nice thing to read -after- the opinion, if you are someone who favors educational fair use. Things could have gone much, much worse. (Non-legal-beagles: a concurrence means (in this instance, at least) that Judge Vinson agrees on overturning the District Court's opinion, and vacating its orders, and remanding the case for further consideration. He just thinks those are the correct course of action for wholly different reasons; i.e., he seems 100% certain that GSU should be paying for ALL COPIES OF EVERYTHING.)

It is difficult to predict what will happen next. This is not a slam-dunk case for the publishers, though it does favor them more than the first District Court opinion. Remand and review will require a great deal of time and resources, again, and the parties may feel that it's not worth that investment, and settle. If so, we won't get more rulings from courts. If they don't settle, we'll get another District Court ruling, different from, but perhaps not entirely overturning, the previous one. And perhaps another appeal after that, and...

In the meantime, it may also be worth remembering that none of this legal interpretation is binding law outside of the 11th Circuit (Alabama, Florida, Georgia.) In other states, we can look to these opinions for guidance, but we can also explore different paths.

What is the government's interest in copyright? Not that of the public.

Like many other geeklaw & policy folks, I was baffled from the get-go by the decisions of federal prosecutors to pursue massive criminal charges against Aaron Swartz for downloading papers from JSTOR. I could understand that his activities constituted problematic behavior, but not the blustering punitive response.

If Aaron's wrongful act was unauthorizedly copying articles, copyright law would seem to have been the appropriate venue for a response. JSTOR declined to bring a civil suit against Swartz. State officials had no intention of bringing criminal charges against him, either. But then the federal prosecutors stepped in, and charges blossomed all over the place. But -not copyright charges-.

Even though prosecutors' rhetoric in PR statements and press briefings invoked the rhetoric of "theft", "stealing", and unauthorized copying, the criminal charges were not based in copyright law. Instead, the prosecutors brought charges under the Computer Fraud and Abuse Act and other similar statutes. If the harm truly was in the unauthorized copies, why not bring charges of criminal copyright infringement? It's possible the prosecutors might have had a hard time making such charges stick (only one of the three definitions of criminal copyright infringement even plausibly applies); it's possible the prosecutors didn't think the penalties for criminal infringement were punitive enough.

Which raises the question: why criminal charges at all? The supposed distinction between civil cases (where person Q can sue person R) and criminal cases (where the government brings charges against person R) is that criminal cases involve harms to society, to all of us. Was Swartz's downloading a harm to all of us? The federal prosecutors certainly invoked the social harm of theft of copies - but didn't bring the charges the law provides to address that act. And if the social harms of copyright infringement, the damages to the businesses of content providers, are such terrible things that violators deserve extensive jail time (in excess of that available if the charges had actually been brought for copyright infringement), what to make of the fact that there is no law that provides criminal penalties for patent infringement? 

So it was with all these concerns floating in my head, that I read in an email yesterday that the U.S. Department of Justice is considering intervening in a civil copyright case - considering intervening on behalf of commercial publishers against the proposition that there is any legal right to make copies for non-profit, educational use. They are not considering intervening on behalf of the educational users, despite the fact that the copyright statute invokes "multiple copies for classroom use" as an example of legal, permitted fair use.

I am incensed that DOJ staff time was used to even draft this motion - they are asking for more time to decide whether they should get involved in the case, but they have clearly indicated that there is no way they will get involved in the case on behalf of legal educational users. In theory, the government brings charges in criminal cases because there is societal harm. The Georgia State litigation is not a criminal case. This is a case where two parties disagree about the legitimate interpretation of a law.

This situation is as if McDonald's decided it did not approve of the way some of its customers ate their burgers, sued them for violating a law that left open the possibility that the way the customers were eating their burgers was perfectly fine, and instead of letting the usual court processes decide the disagreement, the government decided that they should help McDonald's make their customers eat the way McDonald's wants them to. For the government to even consider intervening in this case signals (incredibly much more intensely than I have thought in my most cynical moments) that they do not think there are any valid interests in copyright other than that of business entities engaging in commercial, market activities.

Anyone who relies on fair use in any part of their lives (and we all do, these days), should be very concerned. The idea that there is an actual public interest related to copyright - despite the ways copyright is increasingly intensely entwined in basic activities of our daily lives, and in issues of free and fair access to information, cultural participation, and democratic engagement - remains (and is perhaps increasingly) an alien concept to our government. 

Could it be that it's all... NOT that simple?

Talked recently with a scholar who was planning to reproduce a number of his own articles in a small print run. He was pleased to hear from our national non-profit rights-clearance center that it was no problem, they'd absolutely be able to help him with all of this, and it would be a breeze for him! Yet somehow, when given the list of publications, even with much waiting, and nudging, and resending-of-the-list-of-publications... a response was not forthcoming.

Handwritten entry from Oliver Cromwell State Papers
Need permission to use this? SURE, we'd be HAPPY to get that for you! No problem! Reasonable price, too!
London defies ban on Xmas; entry from Oliver Cromwell state papers. No known © restrictions. From National Archives, UK

Could it - just possibly - be that it's actually NOT always super-easy to contact some convenient clearinghouse and quickly and easily get permission to reuse works? Even when you are talking about your own works? Especially when your career spans more than 50 years of publishing, across several continents?

Could it be that copyright ownership is actually NOT that simple, and that a model of copyright that functions on the assumption that re-use should always require permission, because it's always easy to get... well, could it be that that WOULDN'T ACTUALLY WORK VERY WELL A LOT OF THE TIME????  *cough* Georgia State *cough*

Maybe. But what do I know? It's not like I see how this stuff causes problems on the ground in the real world or anything.

Georgia State update

state map of Georgia with copyright symbol superimposed

Trial in the Georgia State case wrapped on Tuesday, but don't expect a ruling until quite a bit later in the summer. It's looking less and less likely that the "nightmare scenario" (see my own post, and Kevin Smith's) will come to pass (at least in the short run), since the contributory liability claims have been more or less dismissed.

The simple fact that academic publishers were willing to request the injunction that they did, however, should remain a source of serious concern. Peggy Hoon recently said:

"this proposed injunction is so onerous, so intrusive, so far-reaching, and so incompatible with the reality of teaching and learning in the 21st century, that simply widely publicizing the existence of and contents of the proposed injunction may well achieve what the library community has been trying to do for the last twenty years.

And Paul Courant recently used the requested injunction to illustrate a point about the differences between adversaries, and enemies.

"What the plaintiffs are saying is that they are quite willing impose enormous costs on academic performance and academic freedom in exchange for higher profits. This is not the request of a friendly adversary; this is the attack of an enemy."

In the last couple of weeks, in my own interactions with faculty members, I've seen several individuals who were otherwise uninterested in copyright issues get fairly hot-headed once the terms of the requested injunction were described. However the legal case may play out (including in the no-doubt-lengthy appeals process), the publishers may have made some serious missteps along the way.

Why non-academics should be following the Georgia State U case

This post will be cross-posted at TechDirt at some point. Supposedly. Update, 6/9/11 - has been posted

Update, 6/9/11: Check out the latest on the GSU case.

Trial is currently under way in a copyright suit against Georgia State University brought by a number of academic publishers (and funded by an interesting additional party). We won't know the outcome of the trial for a while, and the losing party (whoever it ends up being) will almost certainly appeal the district court's decision, so the case hasn't attracted much attention outside of academic spheres. But it has the potential to set some far-reaching precedents on fair use, and anyone interesting in copyright and tech policy should be following.

The publisher-plaintiffs are suing over the way instructors (and possibly others on campus) share course readings like academic articles and excerpts from academic books. They are objecting both to readings posted on course websites (i.e., uploaded by instructors and accessible only to students registered for a course) and readings shared via "e-reserves" (i.e., shared online through university libraries, usually also with access restricted to students registered for the course). The publishers claim that sharing copies of readings with students is not usually a fair use, that faculty can't really be trusted to make their own calls about what is or is not fair use, and that permissions fees should be paid for most of these uses.

Without going into the details of the draconian injunction the publishers have requested if they prevail, the baseline claim of the lawsuit - that few of these uses are fair uses - is a pretty extreme one. The publisher-plaintiffs are emphasizing that online sharing of readings is equivalent to paper photocopied coursepacks, because lawsuits in the 1990s established that it's not fair use when commercial copy shops sell paper coursepacks for profit. Suddenly the copy shops (which had been providing the coursepacks for just over reproduction costs) had to clear licensing for each article or chapter included. (Fun party trick: to identify which individuals in a room full of academics were students later than 1996; simply ask them whether their coursepacks were affordable, or expensive. Additional fun: watch the expressions on the faces of pre-1996 students when you tell them how much coursepacks currently cost students - as much as $500 per pack!) Incidentally, the Copyright Clearance Center, the ostensibly non-profit organization that facilitates paying for those permissions, although not a party to the Georgia State suit, is underwriting the publisher-plaintiffs' litigation fees.

But the "coursepack cases" were all focused on copying at commercial copy shops. None of the currently-contested uses are for-profit. The only market harm is that the publishers are willing to license every use, but the academic community is not taking them up on this offer. (Much of the content shared in course websites has even already been purchased once for campus use as licensed library resources - although most of the licenses are only for access through the publisher website. E-reserve materials are less likely to be materials for which the library already has subscription access - they're more likely to be unique or one-off materials.) While the fair use statute does say that harm to "potential markets" is relevant to a fair use determination, a ruling against fair use at Georgia State would do a lot to establish that any time a copyright holder is willing to sell a license, not taking them up on it is inherently infringement.

It is also helpful for the plaintiffs to focus on coursepacks because in those cases, copy shops were held responsible for the decisions instructors made about what readings to copy for their students. In the Georgia State case, the plaintiffs are arguing not just that most course reading uses are not fair uses, but that the University should be responsible for individual instructors' decisions on fair use. Certainly, individual instructors may make bad decisions about fair use sometimes, but the publishers don't want to deal with the inefficiency and negative PR that would accompany suing individual instructors. Trying to have the institution held liable makes for a very efficient lawsuit, and if the tactic succeeds, will force the institution to develop a single policy on use of course materials - vitiating the flexibility and case-by-case determination that fair use is supposed to provide far more rapidly than suits against individuals would.

However much the plaintiffs would like it to be so, paper coursepacks are not the only relevant comparison. For example "e-reserves" are very similar to more traditional "course reserves", where a physical copy of an item is held "on reserve" at the library and individual students can check it out for short periods of time. Most students check out reserve materials just long enough to photocopy or scan the readings for their own use - and many would accept that those personal copies are legitimate fair uses. Sharing articles on course websites is very similar to an instructor handing out paper copies in class - again, a practice many would consider to be a fair use. Even the existing precedents against some uses of research articles admit that making personal copies of articles for research is often a fair use.

"We do not deal with the question of copying by an individual, for personal use in research or otherwise (not for resale), recognizing that under the fair use doctrine or the de minimis doctrine, such a practice by an individual might well not constitute an infringement." (American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2nd Cir. 1994).)

Finally, the copyright statute explicitly includes "multiple copies for classroom use" as an example of a fair use. Certainly it is possible that some of the e-reserves and course website uses that instructors undertake trespass outside the bounds of fair use. But no institution can police use decisions on the part of all its participants at the level of responsibility this suit seeks to impose without creating policies that wipe out any contextual sensitivity or flexibility in what is supposed to be copyright's "breathing space". Additionally, because copies for classroom use are an archetypical fair use, if the publisher-plaintiffs prevail in this suit, it undermines fair use claims in all of the other areas explicitly listed in the statute (including "criticism, comment, news reporting, [...] scholarship, or research") - much less those not enumerated specifically as examples of fair uses. This obscure academic fair use lawsuit has the potential for broad impact on us all.

There is a wide range of incredibly well-articulated perspectives on the case at the Chronicle of Higher Education.

Copyright time-travel is a bad idea

black & white photo of Copyright Librarian, as a baby
©Libn, circa 1976

The lawsuit against Georgia State University brought by a number of academic publishers (including Cambridge, Oxford, and Sage) and funded by the ostensibly non-profit Copyright Clearance Center proceeds to trial on Monday morning. At issue is the widespread re-use and sharing of academic content among faculty, staff, and students at a large university - sharing and re-use that is essential to the academic endeavor. It is quite devoutly to be hoped that Georgia State will win at trial, and that we will get a court opinion holding that many currently common practices of sharing and re-use in education are permitted as fair use.

However, it's possible that Georgia State will not win, and recent documents filed by the publisher plaintiffs highlight just how bad the outcome could be in that event. The document in question is the publisher plaintiffs' proposed injunction - the remedy they are asking the court to apply if they win. Among other restrictions on re-use and sharing, the publishers are asking the court to impose the 1976 Guidelines for Classroom Copying as the maximum standard for fair use on the Georgia State campus.

That the publishers would ask for this as a proposed injunction is surprising and disturbing. For a number of reasons applying the 1976 guidelines to educational use in 2011 is absolutely ridiculous!

  1. The Guidelines were formulated in 1976. As an absolute passage of time, thirty-five years is not that long, but in terms of how content is created, shared, and distributed, that's EONS ago.
    At the time these guidelines were formulated...
    • ...most people created their academic works on typewriters, and some still copied them by mimeograph. Word-processors were new and flashy pieces of equipment (and no, I don't mean word-processing software, I mean dedicated word-processing machinery.)
    • hand holding crumpled computer punchcard
      image CC BY Marcin Wichary
    • ...most people read academic literature in physical editions of journals or hard-copy books. Library catalogs were stored on paper. Database searching existed, but it often still involved paper punch cards.
    • ...the average price of a library subscription to a chemistry journal was around $200. The average price of a library subscription to a chemistry journal in 2010 was around $3400. (Note that inflation between 1976 and 2010 would take that $200 only to $766.45.)
      (Philosophy journals only cost around $460 in 2010, but in 1976 they were about $30. Inflation, again, would account for an increase to about $115.)
      (2010 price data from Seeking the New Normal: Periodicals Price Survey 2010, K.S. Henderson & S. Bosch, Library Journal, 04/15/2010. 1976 price data from "Periodical Prices: 1976-1978 Update", F.F. Clasquin, Library Journal, 10/01/1978.)
    It was much more difficult to make and share copies with colleagues and students in 1976 - but few people ever thought that copyright was an issue when doing so.
  2. For a copyright to exist at all in 1976, the creator or copyright holder had to register with the Copyright Office. If the work was published without correct use of the copyright symbol, date of publication, and other formalities, all copyright in the work was lost, and it became part of the public domain.
    In 1976, you had to make some effort to own a copyright. By contrast, since 1978, everything anyone creates is automatically protected by copyright, whether the creator wants to exercise those rights, or not. This sea-change in the formation of copyrights has been a contributing factor to the current tendency to act as though all uses of any copyrightable works should be paid for, unless one wants to risk a lawsuit. It didn't used to be that way.
  3. The Guidelines were intended as a minimum standard of fair use. As the Guidelines' own preface states: "There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use." Even assuming the Guidelines represented a reasonable minimum in 1976, there is simply no plausible argument that they can therefore be a reasonable maximum bound on fair use in 2011.
  4. The Guidelines were not then, and never have been actual law, nor a binding interpretation thereof. They were an ad hoc agreement between a number of parties, including publishers and academics, around the times that the copyright laws were undergoing major changes with the passage of the 1976 Copyright Act.
  5. The negotiations that established the Classroom Use Guidelines in the first place only ever included academic publishers. Many individuals seeking certainty about fair use ask me* whether they couldn't just make everything easy on themselves by complying with the Classroom Use Guidelines. I usually respond that the Guidelines present a severely limited perspective on fair use, and point out that anyone other than an academic publisher would have no acquaintance with the Guidelines as relevant to a fair use determination.
    If an absolute limit on academic fair use is going to be established, shouldn't other content owners get to chime in? While I'm not terribly worried about most industrial content owners getting their voices heard on copyright issues, content production is increasingly democratized and diversified, and those alternative voices are often not well-heard. There are many, many content creators and providers out there (academic and other) who want people to use and share their works.
  6. The Guidelines make no sense when applied to materials that are not print-based. Increasingly, I hear people asking if they can show a YouTube video to their class, because it would just be a one-time use. (The idea that permission has (corrected 5/16/11) does not have to be sought the first time something is used in a class comes from the Classroom Use Guidelines.)
    How on earth would one apply the Classroom Use Guidelines to such a situation? To the computer scientists teaching an AI to understand speech by letting it listen to recorded radio? To a neuroscience researcher reproducing news articles for test-subjects to read in an fMRI? To all the millions of other uses on our campuses that do not involve print objects produced by academic publishers?
  7. Even if the plaintiffs do not intend to impose the limits of the Classroom Use Guidelines to content they don't own, there is no way to prevent it. For most non-lawyers (and even many non-copyright-specializing lawyers) whatever they know or hear about copyright in one area, they generalize. This is a pretty sensible approach for the non-specialist. Even specialists usually can't wrap their heads around all of the complexities of copyright law - not to mention the ways that content licensing provisions warp things still further!
    It is extremely difficult to explain even to highly educated and erudite audiences why showing the entirety of a film in a classroom may be fine, but at a conference you may want to stick to using a short clip. Add in the complication that if the film was purchased under a licensing agreement that restricts either §110(1) or §107, you may be able to do neither, and most folks give up in disgust!

Why should you care if you are not at Georgia State University?

Well, if the court were to impose this injunction on Georgia State, you can bet that publishers would bring lawsuits against other universities, colleges, and educational institutions pointing to the Georgia State decision as precedent.

But even if the publishers don't win in the Georgia State case (and goodness knows I hope they don't) and this injunction is never granted, the simple fact that it was requested, by academic publishers, is a graphic indication that these particular publishers and the Copyright Clearance Center are in no way interested in fostering research, teaching, and scholarship. They're interested in exercising maximal control over every bit of content they own, and squeezing money out of schools and users every single time we use, or share that content.

Most of the content published by academic publishers is produced by our own faculty and students - it is past time to commit to new models for distributing this content that don't leave it in the hands of rent-seeking, for-profit businesses with no respect for academic values.

More Information

For a detailed analysis of the full request from the publishers, check out Duke's Kevin Smith outlining "A Nightmare Scenario for Higher Education". And Brandon Butler from the Association of Research Libraries has provided an insightful highlighting of what the publishers left out of the copy of the Guidelines that they submitted to the court.

*Because I am an attorney and bound by legal professional ethics requirements, I do not provide legal advice to people who are not my clients. I do often share information about how the law works, such as explaining the elements of a fair use analysis, without providing legal answers, such as whether a particular use is fair.


I'm Nancy Sims, the Copyright Program Librarian at the University of Minnesota Libraries.

Though I am a lawyer as well as a librarian, no content on this blog constitutes legal advice; if you need direct advice on your legal rights or responsibilities, please consult your own attorney. This blog represents only my own opinions and not those of my employer.

I'm @CopyrightLibn on Twitter.

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