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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isn't great news to the many folks who have (quite correctly) long-since abandoned applying any mental energy to the outdated Guidelines.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.




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And I thought "Can We Scan This?" was a hard question...

We have some really amazing and interesting things in our Archives and Special Collections; when we have some funds available, there're always things we want to digitize for preservation purposes, and for public sharing. Unfortunately, copyright is often a huge barrier to scanning things and making them available to the world: we can do it if they're in the public domain - but are they? We can do it if we have permission from the rights holder - but who holds the rights? There's an incredible amount of research involved in digitization projects - who did this come from, was it ever published, where was it published first, was a copyright registered, was it renewed, when did the author die, who were their heirs, where do the heirs live...

But lately I've been grappling with a whole -new- set of questions for some digitization projects, thanks to some funding that can only be used to make materials available with an open license. Rather than trying to figure out who, if anyone, could or would object to our scanning project, we have to track down the documentation necessary to establish that we own the copyrights in the materials. In several cases, we can document pieces of the necessary legal chains: individuals signed releases to Entity A, and Entity A gave us the materials - great first step! But Entity A no longer exists, and we have no documentation that Entity A ever gave the copyrights to us - augh! In other cases we have documentation that the rights to some of the materials were transferred to us, but there are chunks of the materials where the rights probably belong to someone other than the group that gave us the rights. So, clearly, we don't own the rights to those chunks - and sometimes, those chunks are anything but clear to pull out of the overall collection.

The oddest thing is how -far- this work is from the risk management mindset that colors so much of copyright use analysis. Rather than uncertain documentation putting us in a riskier situation (are there heirs we didn't know about???), uncertain documentation produces a certain conclusion: If we don't own it, we can't license it.  And in this case, since the money can only be used for licensable materials, if we can't license it, we can't digitize it. :(  Not the most fun set of investigations.

(On the up-side, my various archives and digitization colleagues are all awesome, and great to work with!)
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Music, musicians, music fans, ownership, legitimacy...

(re-posted from previous links-roundup post)
 
There is so much to say about all this, but it's kind of all been said already. Here's a few of the things I've been reading in preparation for talking about it on MPR this morning. MPR's other station, The Current, has some good, concrete coverage of some of the latest flap with local musicians Jeremy Messersmith (who will also be on the show on July 9) and Christian Erickson

Suffice it to say, it all started with the NPR intern post by Emily White (except it didn't, this stuff has been debated for a lot longer than some folks seem to think), and David Lowery's condescending response. The Other Emily White, a music producer, wrote a great defense of Intern Emily White. Dave Allen, himself also a musician, fanned flames while also making some sharp points.

Since lots of the discussion has centered around who gets payment, and how, for music purchases, I was very interested to note the founding last week of Any and All Records, which promises to sign any artist who wants to be signed, and in return promises "to do nothing for you. That said, we also won't cost you anything, we won't take anything from you or own anything of yours either." They seem to have signed well over 200 artists already. As a point of comparison, I also found Steve Albini's early-90s discussion of the relationships between artists and traditional label structures pretty informative.

My reading list on this topic has grown exponentially - especially since some really sharp insights do surface in the general morass of comments on a lot of these posts.

Erin McKeown - http://theclatterofkeys.tumblr.com/post/25432949131/white-vs-lowery-or-i-dont-have-time-for-this

Justin Spohn - http://thisisviolence.net/post/26039099299/why-must-i-be-the-thief

Steve Albini - http://www.electricalaudio.com/phpBB3/viewtopic.php?f=4&t=59318&start=20#p1482891

Jeff Price from Tunecore - http://blog.tunecore.com/2012/06/the-intern-the-artist-the-internet.html

Jonathon Coulton - http://www.jonathancoulton.com/2012/06/20/emily-and-david/

Ethan Kaplan, LiveNation - http://www.blackrimglasses.com/2012/06/22/are-we-really-still-discussing-this-or-my-response-to-david-lowery/

Mike Masnick/Techdirt
http://www.techdirt.com/articles/20120625/01011219455/some-facts-insights-into-whole-discussion-ethics-music-business-models.shtml
http://www.techdirt.com/articles/20120524/02293219056/amanda-palmer-steve-albini-piracy-it-only-helps-musicians.shtml
http://www.techdirt.com/articles/20120620/03552119398/business-model-failure-is-not-moral-issue.shtml

Zac Shaw - http://www.mediapocalypse.com/in-defense-of-free-music-a-generational-ethical-high-road-over-the-industrys-corruption-and-exploitation/

NYTimes' Ben Sisario - http://mediadecoder.blogs.nytimes.com/2012/06/19/npr-intern-gets-an-earful-after-blogging-about-11000-songs-almost-none-paid-for/?smid=fb-share

Wesley Verhoeve - http://www.wesleyverhoeve.com/quixotism/
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I have thoughts...

...they just don't often end up here. I always want to write comprehensively - but many of the things I think about are way too big to write comprehensively about in a blog format. So, in hopes of more of my thoughts making it here, even in incomplete form, some annotated links.

Things That I Have Been Thinking About

  • Origami folding patterns
    Painter Sarah Morris has been making paintings based on the crease diagrams developed by origami artists, who have sued her for copyright infringement. The news stories about this case focus on whether the paintings are transformative, whether they are fair use, and issues of credit and attribution. But the first question that comes to my mind is, how would origami crease patterns be copyrightable in the first place?

    LangvMorrisfigure.jpgAs far as I understand it, crease patterns are algorithmically-generated instructions - incomplete ones, at that - for how to produce an origami figure. Instructions, recipes, diagrams that represent pure facts: not copyrightable. Certainly there's a lot of work involved in developing the crease patterns, but that's not copyrightable either. Origami figures, once folded by an artist, may well be copyrightable in themselves - they're certainly expressive and creative. Newly developed crease patterns may even be patentable! But I'm pretty sure Lang's understanding of origami copyright is incorrect.

  • Annoying permission requests
    A student in a class _about copyright_ requested permission to quote from our Copyright Information site in a class presentation. Our Creative-Commons-licensed site. In a class presentation. Either that student is not going to pass that class, or that instructor is really incompetent.
    Asking permission when fair use applies is a waste of your time and theirs, and shrinks fair use for all of us. Asking permission where Creative Commons licenses apply, or from someone who wants you to share their stuff is really quite disrespectful.

  • National blanket licensing
    Ariel Katz recently discussed the parallels between national blanket licensing and taxation without representation. Since there are frequently proposals to levy blanket fees on file storage media in the U.S., and blanket licenses are imposed on many venues here via extralegal (but close to unavoidable) means, I appreciated his insights on the fundamentally anti-democratic nature of the Canadian system. Choice quote:

    "Canada has established a "dancing tax", collected by, and for the benefit of, private entities, because they asked, nobody could afford to vigorously object, and the Board approved."

[Edited July 9 to move music stuff to new post.]

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On plagiarism and the public research university

dark blue sky with small corner of yellow-brick building intruding lower center
Heller Hall BY-NC jadammel/Joe D.
(photo taken at the U of M)
Recently, a blogger copied from a University-produced blog at significant length without credit or a link back to the original site - behavior that understandably produced pretty negative feelings from the staff members whose work was being reproduced without credit. Because the blogger had suggested that the content was in the public domain, these folks contacted me for clarification. We ended up discussing a lot of issues related to fair use and the mission of the public research university, as well as how best to foster appropriate public use of University-produced materials. It's worth noting at the top here, that the initial situation was resolved with positive feelings all around, including the blogger apologizing for not providing credit.

The following thoughts on plagiarism of public-facing materials produced at a public research institution are adapted from email conversations around the above situation - but might be worth thinking about in other instances of sharing and 'stealing'.

-----------------------------------------------------------------------------------------------

First off, copying a whole blog post without credit sounds like plagiarism - which is unethical, and in the academic environment is a punishable offense. But plagiarism is often not actually a copyright violation. At times like this, that can be frustrating, but there are actually good reasons for the law to work like that. When engaging with someone who may have plagiarized in a blog environment, I'd stick to talking about plagiarism in terms of journalistic (and blogger) ethics, rather than law - most people usually do care about behaving appropriately on these points, but can be pretty confused about appropriate ways to provide credit, or about what works are free for public use.

Depending on the facts of how a work is produced at the University of Minnesota and how the University copyright policies apply, the copyrights may belong to the Regents (i.e., to the University), to individuals, or to a combination. Bloggers (and others) may be confused about the public domain status of University of Minnesota materials, because the United States federal government does not own copyrights - all federal government materials are in the public domain in the U.S. Many states also have laws that make their own state laws public domain. However, the individual states, and especially units of those states acting as regular business entities, can own copyrights. It is quite common for Regents of state universities to hold copyrights in materials produced by their staff.

It's important to remember that even if the Regents do own the rights, bloggers - and anyone else - do have some rights to re-use the content without permission under the copyright concept of "fair use". At times, fair use does include even the use of an entire work - a concept that has recently been upheld in cases of bloggers reproducing news articles without permission.

Clearly, plagiarism of online content is problematic - but it is actually not true that every user would be violating copyright if they reproduced the whole article, and it is true that individuals do sometimes have the right to use quotations without permission. Because there really is  room in the law for some re-use by individuals, I'd encourage anyone communicating with a possible plagiarist not to overstate what the law prohibits individuals from doing - although I understand why poor behavior and plagiarism might produce the urge to use some strong words.

It's also important not to overstate the limits of use rights in copyright because, as a public research institution, the Regents have articulated institutional commitments to sharing our work with the public - one of the guiding principles of the Regents' Copyright Policy is "The University's mission articulates a commitment to sharing knowledge through education for a diverse community and application of that knowledge to benefit the people of the state, the nation, and the world. In this spirit, the University encourages faculty and students to exercise their interests in ownership and use of their copyrighted works in a manner that provides the greatest possible scholarly and public access to their work."

Throughout the University, we rely on fair use a lot in our research, teaching and scholarship. It's important to remember that that's a two-way street.

edandellow-byncdnd-alankaar.jpg
'ed and 'ellow BY-NC-ND Alan Kaar
(photo taken at the U of M)
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JSTOR opens access to some collections; notes this is(n't) in response to Swartz case

JSTOR announced yesterday that they are opening access to a portion of their older holdings, free for use by the entire world. They noted this was part of a larger effort to make their resources more available to researchers unaffiliated with institutions that have JSTOR access.

They also noted that this was (or wasn't?) in response to the highly publicized downloading by activist Aaron Swartz that led to his arrest & arraignment on computer & wire fraud charges earlier this summer. In a public letter, the JSTOR Managing Director, Laura Brown, stated that they had plans to release this content prior to the Swartz case, but that "it would be inaccurate to say that these events have had no impact on our planning." She is not particularly clear what impact the Swartz case actually did have on their planning, noting that they "considered whether to delay or accelerate this action, largely out of concern that people might draw incorrect conclusions about our motivations." I'm not sure what incorrect conclusions people might draw, or how the timing of the release would affect the correctness of those conclusions, but I'm always happy to hear of more resources being available to more people!
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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.

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How does copyright make you feel?

I recorded this like two years ago, and then forgot I made it. Very smart of me.

In this short video I explore one source of a lot of copyright conflicts between individuals - what each of the individuals feels about the works they create.

I sincerely apologize for the lack of a transcript. I have no idea where the original files are, or even if I had a script I was working on. Will try to transcribe soon.

"How do you feel?" video CC BY-NC 3.0, Nancy Sims.

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Registering ©

Unlike almost any other element of copyright law, there's actually some straightforward information about how copyright registration works that could, in fact, enable you to make a pretty clear decision about your own course of action. Wild, I know!

Registration is how you "copyright" something, right?

NOPE. The use of the word "copyright" as a verb is outdated. Registration is unrelated to ownership of a copyright.

A human being capable of expressing herself in almost any way already owns copyrights. Copyright attaches automatically the minute a work is "fixed in any tangible medium of expression", under U.S. law. Most other countries have similar laws in which a copyright comes into existence at the same time the copyrightable work does. (Whether a work is copyrightable (i.e., the kind of thing copyright applies to), and whether it is "fixed in a tangible medium" (i.e., recorded somewhere, even if fleetingly) are technical questions I'm not gonna get into here. Both are addressed in § 102 of the copyright code, for starters.)

Then why do people bother registering? What does it do?

Registration provides some important benefits:

First and foremost, registration is a prerequisite for any civil infringement suit - no one can sue someone else about a copyright without first registering that copyright. However, registration can take place at any time during the existence of the copyright - and can even take place after a copyright holder finds out about an infringing use.

Second, registering before any infringement takes place makes sure that certain legal remedies are available. Specifically, registering within three months after publication and before any infringement takes place means that statutory damages and attorney's fees are on the table in a lawsuit. If registration happens later, those remedies are not available.

Attorney's fees are pretty straightforward - the winner of a lawsuit can ask that the loser has to pay their legal fees. Statutory damages are a little more complicated - basically, the plaintiff doesn't have to prove they lost any money (which is what damages usually mean) - they just have to prove that infringement took place, and they get a pre-set amount of money ($750 - $150,000 per infringing copy).

Finally, registering your copyright soon after publication creates a presumption both that the copyright is valid, and that the registered owner is the real owner. This isn't usually a big issue, but the effect of a presumption in court is that anyone who wanted to argue that the copyright in fact belonged to them would have to prove that the registered owner was not the real owner.

That all sounds serious! I should register!

Well, registration does cost money ($35-$160 US.) And it isn't required. And the creator absolutely owns the copyright automatically. And registration is almost only ever relevant to lawsuits about the copyrights. So some people do choose not to register - and many more simply don't realize they can.

Even creators who don't ever register still own their copyrights, and can distribute, license, or sell their work secure in the knowledge that they are legitimate copyright owners. As owners, if they discover doing something with their work that they believe is infringing, they can still send completely legitimate letters requesting that such uses be stopped. And if that doesn't work, they can register after the fact.

Even owners who register after an infringement has occurred can still bring a lawsuit. In a lawsuit, they can still get "injunctive relief" and "actual damages". That is, the court can order an infringer to stop what they are doing, or even to destroy all existing infringing copies. And the court can require the infringer to repay any actual monetary or business losses. These can include lost opportunities, but unlike with statutory damages, the copyright holder has to prove that they actually did have those losses.

Someone else says they'll register my copyright for me...

A third party registering copyrights on behalf of creators might simply be doing a nice thing - providing a service. But if they're charging for it, it might be something the creator can do herself for less money (it's currently $35 to register your own copyright online.)

A third party offering to register copyright on behalf of a creator might also actually mean that they're going to register it for themselves - if a creator transfers copyrights to someone else (such as a publisher) then that someone else will be the legit owner, and that someone else will be the one getting the benefits of the registration. If the creator wants to transfer her copyrights to the third party, fine; but if she's transferring her copyright because she's been told she'll get some benefit from the registration as a result, that's misleading.

If I register, do I have to give a copy to the Library of Congress?

Technically everyone who publishes anything in the U.S., registered or not, has to deposit two copies with the Library of Congress within three months after publication. Failure to deposit does not affect the existence of a copyright, but it does actually expose the copyright owner to the possibility of a fine! There are some exceptions for smaller print run publications and such.

So should I register my copyright, or not?

Every creator has different goals and intentions for their creations. There are few downsides to registering. Considering the benefits and costs of registration, and how those benefits and costs align with the creators' goals, can help with the decisionmaking process. So can consulting your own lawyer.

Please do note that there are a couple more complicated wrinkles around registration (different benefits) for works protected under the Visual Artists Rights Act (primarily works of visual art that could be described as "fine art") and broadcast transmissions.

There's more info about the options available for registration (although it's a bit out of date on the online options) and about how an enforcement lawsuit works, from the Stanford Copyright and Fair Use site.

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Jail? For downloading too many articles???

On Tuesday, a lot of the conversation in my neck of the internet was about the arraignment of activist & open access advocate Aaron Swartz on federal charges of wire fraud and unauthorized network use. Most of the discussion was among the geeklaw aficionados, and  I've been kind of surprised that the general library and higher ed crowds haven't seemed to be following it that closely. The networks most deeply involved in the case are those of JSTOR, the not-for-profit service that hosts & archives hundreds and hundreds of scholarly journals.

And aside from the geeklaw-y librarians I know, what discussion I have seen from academics (and from a lot of nonacademic commentators) has been saying things like "they're bringing criminal charges against a researcher for downloading too many articles???" "He was a legit user of JSTOR, this is ridiculous!" I do agree that the prospect of jail time for Swartz' activities (especially when JSTOR itself had apparently considered the matter settled) seems like a massive overreaction on the part of the prosecutors. However, the charges in the indictment, and Swartz's alleged criminal activities are NOT "downloading too many articles."

Let's get some stuff straight.

1. There are NO copyright charges involved.


United States copyright law is codified at Title 17 of the U.S. Code, and criminal copyright infringement is defined at 17 U.S.C. § 506. All of the charges in this case fall under Title 18 of the U.S. code - the federal criminal code - and the specific charges are around wire fraud (18 U.S.C. § 1343) and computer fraud (18 U.S.C. § 1030).

So fundamentally, Swartz is not being prosecuted for the downloading at all. He's being prosecuted for accessing the MIT campus network far beyond the bounds of the fairly generous access they provide guest users, and for accessing JSTOR well beyond the bounds of their terms of use. If the facts the prosecution alleges are true (and we do not know that they are - charges and indictments are not proof of the activities alleged therein; "innocent until proven guilty" is not just an aphorism), then Swartz took some actions that clearly violated the terms of his legitimate access to JSTOR and to the MIT network.

Whether these kinds of actions should be grounds for criminal prosecution, especially when the organizations & institutions that run the networks in question have chosen not to bring civil suit, is a question around which there's pretty serious debate. Similar charges were brought against Lori Drew, whose harassment and bullying of a young teen on MySpace was a major contributing factor to the teen's eventual suicide. Prosecutors argued that Drew's activities violated the MySpace terms of service, and that that alone constituted "unauthorized access" to MySpace, and thus was grounds for prosecution under the Computer Fraud and Abuse Act (the same law that is the basis of several of the charges against Swartz.) Ultimately, a federal judge overturned a jury guilty verdict, questioning the wisdom of allowing website terms of service - which can be defined at the whim of the site owner - to found the basis of criminal charges. Many legal scholars and commentators (full disclosure: I edited that last link) agreed that this was the correct legal outcome (although almost all expressed abhorrence at Drew's actual activities.) This has not stopped subsequent prosecutions on similar theories - where violations of terms of service are used as the basis of computer fraud "unauthorized access" charges.

2. Campus subscriptions don't actually confer unlimited access to databases!

Swartz's initial access to the MIT network was totally legitimate - they offered guest user access to their networks and subscription library resources for up to 14 days. This is pretty generous - a lot of campuses offer much more limited network and subscription resource access to guests, partly because access for more potential users usually costs the campus more. But even his initial access, if the allegations are true, involved running an automated program to query the JSTOR databases and scrape content out of them.

Almost all library subscription agreements prohibit certain types of uses, and most libraries try to be pretty up front with their users about the limitations on their use of subscription resources. Unfortunately, the specific limitations vary across different databases and other subscription resources, and as with all terms of use, sometimes the prohibitions are hidden on pages users don't usually see. JSTOR is better than most, in that it actually puts reminders of the limitations in very visible places that most users cannot help but see.

2a. Some of the limitations on use of subscription resources are kinda wacky, but the main one Swartz allegedly violated is pretty straightforward.

Most subscription resources, JSTOR included, prohibit even users with legitimate access from downloading whole issues of individual journals. This is a little wacky, because it's pretty common for a journal to devote an entire issue to one topic, so it might be really relevant to someone's research to download a whole issue, or even several whole issues. JSTOR's policy is more generous than most, explicitly recognizing that sometimes "the entire contents of a journal issue[...] [may be relevant] to a particular research purpose" and allowing larger access under those circumstances.

Even more wackily, most library subscription resources prohibit anything other than "personal use". As Barbara Fister ably outlined recently, defining what "personal use" is in the process of scholarship is a pretty tricky issue, and there are a lot of activities that a lot of faculty members regularly engage in that might violate these kinds of limitations on use. The height of wacky restrictions that subscription resources impose on legitimate users is probably the Harvard Business Review's prohibition on linking to articles even from within password-protected campus networks.

But the usage limitation that Swartz is accused of violating is the one against systematic downloading of content using automated software. I just don't see this limitation as all that wacky. An automated script querying and downloading from a server can impose a really heavy load on that server - spiking use much higher than even a large group of human users. This limitation seems to me like a pretty reasonable tool for service providers to manage and predict their network loads.

2b. "Scholarship shouldn't be locked up in these ivory-tower, commercialized, locked-down, and restricted databases in the first place!"

Actually, I agree with you, at least on principle. (And, um, JSTOR's non-profit...) But there are many, many structural factors that contribute to the ongoing set of problems of access to the products of scholarship. We are working on it (oh, wow, are we working!), but the cultural change, it goes slowly. And the fact remains that academic authors have for years been transferring their copyrights to publishers (non-profit and, increasingly, commercial) without much thought. So right now, the copyrights in these articles do, mostly, live in the hands of the publishers. And that's most directly the result of the authors' decisions (or lack of awareness that there were decisions to be made). I seriously question that large scale knowing copyright infringement is a completely necessary response, or that even as civil disobedience, such activities are going to accomplish much change.

I also question the allegation that Swartz did all this stuff with the intent to upload all the articles to filesharing sites. He may just have been doing it to see if he could. (Weirdly, he used the guest access at MIT even though he had full access to JSTOR at the time through his fellowship at Harvard.) I don't know all that much about the guy, but he sounds pretty smart, and I'm fairly sure he would recognize the quite different legal and ethical implications of redistributing works under copyright versus redistributing limited-access public domain materials, as he did in some earlier projects. He really did work on an article doing textual analysis on a large body of scholarly articles, though it's unclear whether those articles were obtained from the JSTOR scraping. (Although even if his intent really was just to analyze the articles, it's also unclear whether making whole copies of massive numbers of texts for scholarly analysis without permission, even via unquestionably authorized access, is a fair use under copyright law.)

3. "It's like he's being prosecuted for checking out too many books!"

The copying he allegedly did is very little like checking out a large quantity of books (which, incidentally, is totally legit under copyright's "first sale" doctrine (17 U.S.C. § 109), but may be limited by library policies.) It's much more like photocopying large quantities of journal articles. And, as I said above, the copying is only tangentially related to the charges (in that that is how he allegedly violated the terms of service of JSTOR.)

Maybe a better comparison story would be this: someone goes to an open-to-the-public library, and starts taking lots of journals off the shelves and photocopying them. The library staff asks this Someone to stop, because he's making it hard for the other patrons to use the journals, and because he's copying in such volume that they have some copyright concerns (yeah, yeah, I don't want libraries to be the copyright police. But the 17 U.S.C. § 108 limitations on libraries' liability for patron copying don't really protect libraries from known large-scale questionable use of their resources, and we're talking some pretty darn large-scale photocopying.) Someone persists in the copying, so much so that the journals are all unusably out of order (JSTOR's servers allegedly overloaded), the copiers break (MIT's network allegedly got stressed), and the journal distributors even refuse to deliver new issues until the library does more to stop this Someone's copying (JSTOR turned off service to the whole MIT campus for multiple days, eventually.) Nevertheless, this Someone still wants to copy, so he breaks in to the library at night to continue going about his business. And no one sues him for copyright infringement, and the distributors and the library let things drop when he finally knocks it off. But the prosecutors step in and bring charges against him for messing up the journals, breaking the copiers, and breaking in to the library.

In that story, it's still kinda questionable whether criminal charges (and certainly, whether 35 years potential imprisonment) are appropriate. But I think it's a lot clearer that Someone was doing some pretty questionable things. And maybe thinking about it that way, we can move past "Jail? For downloading too many articles???" and start figuring out what we as individuals and as an international community of scholars can do to open things up so similarly problematic access situations are unimaginable 50 years from now.
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I'm Nancy Sims, the Copyright Program Librarian at the University of Minnesota Libraries.

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