Results tagged “Georgia State”

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.
**WAKE UP THE FACULTY AND MOBILIZE THEM TO RECLAIM CONTROL OF THEIR OWN WORKS OF AUTHORSHIP AND THEIR OWN SYSTEM OF SCHOLARLY COMMUNICATION.**"

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.

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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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