June 2011 Archives

Walking the walk

Heard people talking on Twitter about Dorothea Salo's presentation "I own copyright, so I pwn you!"at the Special Libraries Association conference this week, and was sorry to miss it. Now that I've seen her slides, I'm even MORE sorry. I particularly liked her "LESSONS" slides, which bring up some of the concepts that I tried to put in the "Librarian's Copyright Litany", but more action-oriented and direct. Here they are, each followed by my commentary:

presentation slide: no more Nice Librarian

"No more Nice Librarian! When copyright holders act as enemies of all we value, we need to treat them as such."

Librarians are not, generalizing broadly, the kind of people who embrace confrontation. But being "nice" has not really gotten us where we want to go, especially with regard to the increasing tensions between the library and publishing worlds.

While not every librarian needs to be an aggressive copyfighter; we do all need to be aware of the issues, and paying attention to who is on our side. It is not overblown to characterize recent actions (suing over course uses; attacking interlibrary loan) of some publishers as the actions of enemies.

presentation slide: We are not the copyright police

"We are not the copyright police! We must resist all attempts to turn us into enforcers."

I see a lot of librarians who take action to protect the copyrights of corporate content providers by telling our patrons what they cannot do. While I do appreciate that some of my colleagues are worried about protecting their patrons from lawsuits, others with whom I've talked seem to feel a moral obligation to "protect" content from users. This seems to me to be getting the values of librarianship backwards.

time to put our benjamins where our mouths are

"Time to put our benjamins where our mouths are. Open access ain't free. If we want it, time to pony up."

Yes, with our ever-declining budgets, that means ceasing to buy some of the things we currently pay for. May I suggest starting with the ones that restrict our users' rights to actually make use of them?


"We need to own our own stuff. If we don't negotiate for what we write, who will do it for us?"

Librarians do not always do a bang-up job of providing access to our own content - even in the journals we run ourselves. We need to do better on that, including changing policies of journals we run, retaining our rights as authors when we publish elsewhere, and we need to actually follow through and post our stuff in permanent locations online.

Actually, I need to do that. I cc-licensed the paper I presented at the ACRL conference, but I have not uploaded it to our institutional repository yet. Bad CopyrightLibrarian! Time to do better!

Please note: images and textual quotations in this post are courtesy of Dorothea Salo, used under a Creative Commons Attribution license. No, I did not ask her if I could use them. That would be disrespectful and a waste of both our time.
My blog writing is, as always, available under a Creative Commons Attribution-Noncommercial license.

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Comment approval from now on, sorry!

The spam-bots have gotten too active on this blog, and too clever at "sounding" like actual people. Unfortunately, that means I'm going to have to turn on comment moderation. All are still very much welcome to comment, but only comments associated with a University of Minnesota user ID will appear immediately. All others will have to await approval by me. 
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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.

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How I Talk About Fair Use - Intro & "Breathing Space"

When & why I Talk About Fair Use

"How do we/I know what we/I can and cannot do with other people's stuff?" is one of the primary things I'm asked to talk about in trainings and other outreach and education efforts. Often, what people think they really want to know is  "What is and isn't fair use?" They also often ask me to address this (and quite frequently other copyright concepts as well) in less than an hour.

The details of fair use are pretty... detailed - and there really are no exact boundaries that you can point to! In my experience, to do anything other than scare people away from ever reusing any copyright-protected materials again, I need at least an hour (preferably more) to address all those details, and a bunch of other concepts besides. The workshops I lead here on campus for faculty members are usually scheduled for two hours, often run over, and I quite frequently get feedback suggesting that they be longer. (I don't make them longer, because how many faculty members do you know who would voluntarily sign up for a three hour workshop in anything?)

So how to productively discuss fair use in 30 minutes? 15? 10? Rather than trying to talk about the details in high-level, glossed over detail, I try instead to talk about fair use as a concept, and about why it's important to scholarship, culture, and even our daily communications with each other! In the next few posts, I'll feature some of the slides and images I use in my talks, along with brief examples of how I talk about them.

Breathing Space

A number of court opinions make reference to fair use as "breathing space" in copyright law. Talking about fair use as breathing space is a good way to introduce some of the more complex issues (flexibility/uncertainty, and 1st amendment concerns) discussed below. But it's also a good overall summary of the doctrine, and one that makes sense for a lot of people on a gut level. I usually illustrate the "breathing space" concept with this image by Stéfan.

presentation slides talking about fair use as breathing space in the law and using photograph of two Star Wars stormtrooper action figures posed to look as if they're interrogating a Wall-E action figure. Photo is titled This is not the droid we're looking for.

Stéfan's photo is called "This is not the droid we're looking for" and is available under a Creative Commons Attribution-NonCommercial-ShareAlike license.
(My blog is not SA-licensed, so I am not in full compliance with Stéfan's license. I apologize, but also think my use of the photo could be a fair use.)

This image is a good teaching tool for a number of reasons. First, it's funny and pop-cultural, which is almost always a good thing. (It's also an opportunity to bond with the Star Wars fans in the audience over an in-joke - so far, I've never not had at least one person in the audience who gets it.) Second, it's a well-executed photo, technically and conceptually - it's just an appealing image.

But most importantly for my purposes, it provides great opportunities to talk about how fair use exists in large part to deal with new and unanticipated uses, and to provide an outlet for commentary and cultural dialogue. There's a lot going on in this image - it's a silly joke, using characters from very popular movies - but it's also a witty juxtaposition of the two movies. And is there also an element of commentary on a totalitarian regime brutally oppressing a disenfranchised and abandoned manual worker? It also provides an opportunity to briefly address some elements of each of the fair use factors: is there market harm? To movie sales/licensing? To action figure sales? How "much" of the movies are being used? How central are those pieces used to the original work? And so on, and so on.

Sometimes I also use videos (usually short pieces thereof) from the inimitable PS 22 Chorus to illustrate the "breathing space" concept.

The copyright issues raised by their videos are quite densely layered, so more often we will view part of one of their videos to spark a general discussion about what kinds of uses should be tolerated in terms of cultural dialogue and participation. There are way too many great videos from the Chorus to choose just one - this one is my current favorite.

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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.


About this Archive

This page is an archive of entries from June 2011 listed from newest to oldest.

May 2011 is the previous archive.

July 2011 is the next archive.

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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