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New: Copyright Workshops from UMN Libraries!

The University of Minnesota Libraries offer free copyright information workshops to the UMN community. Most are aimed at faculty, but open to participation by others. RCR continuing ed credit is often available. If these scheduled sessions are not convenient or relevant for you, we also offer sessions for research groups and departments at more convenient times or on custom topics. Please email me if you'd like to set that up.

Please note some sessions are online-only - faculty and others who work out-state or at the Crookston, Duluth, Morris, and Rochester campuses are given priority in registering for online sessions.

Can I Use That?: Dealing with Copyright in Everyday Life

Quotation, criticism, review, collage, parody - Copyright presents some big challenges in all of those situations! Participants in this workshop will develop an understanding of the complexities of copyright by exploring examples from visual arts, music, and video, as well as academic research and writing. Expect to think hard, discuss a little, and have fun! No direct legal advice will be provided; this workshop is informational in nature.

Primarily intended for faculty, researchers, and graduate students engaged in the scholarly writing & publishing process. Satisfies RCR continuing education awareness/discussion requirements.

Mon, 11/25/2013 - 10:00am - 12:00pm
Wilson Library Rm S30a

Wed, 12/04/2013 - 1:00pm - 3:00pm
Walter Library Rm 310

Tues, 12/10/2013 - 10:00am - 12:00pm
ONLINE ONLY via UM Connect

Know Your Rights: Copyright Essentials for Authors and Creators

How many copyrights do you own? How long will they last? Can you post your paper online? Can someone else quote from your paper in their own? This workshop will provide a solid grounding in some of the elements of copyright law that are essential to scholarship, teaching, and research. Learn more about protections in the law for educators, and about your rights as an author or creator. Discuss and debate with your peers about some of the burning questions in the field, and enjoy exploring some entertaining and thought-provoking examples. No direct legal advice will be provided; this workshop is informational and educational in nature.

Primarily intended for faculty, researchers, and graduate students engaged in the scholarly writing & publishing process. Satisfies RCR continuing education awareness/discussion requirements.

Mon, 11/18/2013 - 1:00pm - 3:00pm
Walter Library Rm 310

Thu, 12/05/2013 - 10:00am - 12:00pm
Magrath Library Rm 81

Mon, 12/09/2013 - 1:00pm - 3:00pm
ONLINE ONLY via UM Connect

Register: http://z.umn.edu/knowyourrights

Copyright in the Classroom (and Online)

Can you show a movie in class? Can you distribute copies of a newspaper article? What are you allowed to post on your Moodle site, anyway? What about your students' work, or their online postings? This workshop focuses on copyright issues in the classroom, and in teaching online. Learn how the library can help you with electronic reserves and links to subscription materials. No direct legal advice will be provided; this workshop is informational in nature. NO RCR credit available, sorry.

Primarily intended for individuals currently teaching at the University.


Wed, 11/13/2013 - 1:00pm - 3:00pm
Walter Library Rm 310

Thu, 11/14/2013 - 10:00am - 12:00pm
ONLINE ONLY via UM Connect

Wed, 11/20/2013 - 10:00am - 12:00pm
Magrath Library Rm 81

Register: http://z.umn.edu/copyrightinclassroom
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WARNING: Deeply boring to normal people

ETA: Cross-posted at Techdirt

I attended the hearing today in what the presiding judge, Magistrate Judge Franklin Noel, characterized as "several iterations of" AF Holdings LLC v. Doe (case nos. 12-1445 - 12-1449) The cases at hand have all previously settled and been dismissed, but the court determined it has the inherent authority to investigate whether it has been the victim of a fraud.

The order for the hearing limited the discussion whether the copyright assignment agreements for two films, "Popular Demand" and "Sexual Obsession", attached as exhibits in the various AF Holdings v. Doe cases, are authentic. The discussion during the hearing ranged a bit further afield.

These are my own impressions of what happened, but I don't guarantee their accuracy - I'm not a court reporter, and I'm not fully up on the details of all the Prenda/AF Holdings/etc cases. And I couldn't always hear everything. I've tried to be fairly objective in reporting what I saw and heard, but to own up to my biases, I am an attorney whose interest in copyright sits solidly on the public interest side. I don't represent or have any interests with respect to any of the folks present in court today, to the best of my knowledge. (How's that for lawyer-talk.)

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

Individuals present in the courtroom today included:

Paul Hansmeier, lead attorney for plaintiff AF Holdings, LLC
John Steele, formerly a legal partner of Mr. Hansmeier
Brent Berry, northern MN real estate lawyer
Jason Flesher, northern MN resident
Alan Cooper, who alleges his signature was forged on documents related to AF Holdings
Paul Godfread, attorney for Mr. Cooper

And some audience members.

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Mr. Hansmeier began the day by calling his first witness, Steele, and displaying to him on a document viewer the copyright assignment for "Sexual Obsession". Mr. Steele authenticated the assignor's signature as that of Ray Rogers, based on familiarity with Mr. Rogers signature from several instances of business, etc. Mr. Steele also testified that he believed the use of Mr. Cooper's signature on this document was authorized, because Steele introduced Cooper to the owner/controlling member of AF Holdings.

[At this point, and at a couple of later points, the judge asked what exhibit number the documents were that Hansmeier was displaying (since the document viewers don't produce an ongoing copy.) Hansmeier apparently didn't intend to offer the documents into evidence, but the court later entered the copyright assignments in question (originally filed as exhibits in cases 12-1445 - 1449) as exhibits 1 and 2 for this hearing.]

Hansmeier elicited lengthy testimony from Steele as to his knowledge of Cooper's involvement with AF Holdings, his involvement with helping Cooper to form a company (VPR, Inc) to market adult content, and about the nature of Steele and Cooper's relationship over the years. The overview of this testimony is that Cooper was recommended to Steele in 2006 or so as a possible caretaker for his cabin in northern MN, that Cooper lived there subsequently rent-free in exchange for a limited amount of work around the property, that subsequent to Steele's divorce they had hung out more, and that they had been "very good friends by 2010." Steele also testified that he had helped Cooper set up VPR, Inc, that Steele had introduced Cooper to Mark Lutz, and heard Cooper's end of phone calls with Lutz on at least two occasions, and that Cooper had gotten "a kick" out of being associated with the adult industry, and repeatedly joked with friends and others about coming to work for him in his porn company, at least as early as 2011.

Steele testified that he had closed his lawfirm, Steele Hansmeier, over a short period starting in November 2011, because "I was quite frankly surprised with the vitriol and nastiness of the pirates we were pursuing." He mentioned a blog post that showed pictures of his house and small child, and included violent threats against the family. Steele appeared visibly upset during this part of his testimony. Steele continued his testimony to affirm that after closing the lawfirm, he decided to sell his cabin in July of 2012. At this point, the Judge himself intervened to ask what the point of this testimony was; Mr. Hansmeier said it was directed towards motive.

Steele then testified that Mr. Cooper had been angry and hostile once he knew the sale was going forward, and that Cooper had taken items from the property, caused property damage, and attacked or threatened people who came on the property. The judge again intervened, to direct the discussion toward an end point; Mr. Hansmeier then asked Steele about his knowledge of rumors, started by Mr. Cooper, that Steele had molested Cooper's daughter.

Things then got refocused on the topic of the hearing; the copyright assignment for "Popular Demand" was shown to Steele, and he again authenticated Ray Rogers's signature for the assignor, and stated that Steele himself had used this document to file registration documents with the Copyright Office. Then, focusing on the other signature, Steele testified that he did not know if Cooper had signed the documents himself, but spoke to his "understanding" that Cooper had authorized Lutz and his people to sign documents like this on his behalf.

Judge Noel then directed several questions to Steele about the documents in question, and Steele's understanding that Cooper had authorized Lutz to sign on his behalf. Judge Noel elicited that this was based on hearing Cooper's half of two phone conversations with Lutz. Noel also elicited that Steele does not actually know if Cooper signed those documents, but that as far as Steele knew, Cooper had had a position as a "helper" for AF Holdings. Steele testified that he did not know if Cooper was employed by AF - because Steele himself had no involvement with AF, other than them having been very briefly clients of the Steele Hansmeier firm. Finally, Noel questioned Steele as to whether he knew who signed the Cooper name on either of the exhibits, and Steele testified that he did not.

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

Hansmeier called Jason Flesher to the stand, who testified that he had known both Steele and Cooper for 4-5 years. Hansmeier began questioning Flesher about the nature of Steele and Cooper's relationship, but the judge redirected him, and he then focused his questioning of Flesher's knowledge of Cooper's involvement in AF holdings. Flesher testified that Cooper's partner, Charity (last name not ever clearly established) had talked with him about her concern over Cooper's adult industry involvement on cabin visits as early as 2011, but that he did not know anything further about Cooper's invovlement in signing documents, or details of his involvements with any companies. The judge briefly questioned Flesher about his knowledge of the copyright assignment documents (none) or familiarity with Cooper's signature (none), and Flesher was dismissed.

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

Hansmeier called Brent Berry to the stand, and began questioning him about the nature of Cooper and Steele's relationship, Cooper's behavior after Steele decided to sell the house, and so on. The judge intervened to focus again on the documents, eliciting that Berry had seen Cooper's signature before, but wouldn't recognize it on sight, and did not know if the signature on the documents was Cooper's.

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

Hansmeier then called Cooper to the stand. Hansmeier's questions posed to Cooper were often spoken quite quickly, so in a number of instances, Cooper had to ask them to be restated. Cooper also fairly frequently didn't respond directly to the questions, so this part of the recap is a bit more out of order.

Hansmeier's initial line of questioning focused on Cooper's claim that other AF Holdings documents had included forgeries. Cooper wasn't quite sure why he was being questioned about other people's signatures; "I'm concerned about -my- signature." Finally, the judge directed some specific questions about Cooper's knowledge about specific signatures related to the case, and Cooper responded that he did not have any specific evidence about forgeries of signatures for Mooney, Webber, or Salt Marsh. Godfread objected that this seemed to be litigating the motion pending in October, and this was sustained.

Hansmeier began a new line of questioning, about Cooper's testimony in other courts as to his involvement with AF Holdings. Cooper acknowledged that he became aware that his signature was being used related to AF Holdings in late 2012. Cooper stated that Steele had told him at an earlier date that if anyone asked any questions, they were to be directed to Steele. Hansmeier cut off Cooper's testimony on that point, and kept questioning him about other members of his community who might have made him aware of his involvement at an earlier date. Cooper testified that his father-in-law (an ex law-enforcement officer) had told him he needed to find out -why- Steele was telling him to forward any questions.

After this, Hansmeier's questions shifted direction repeatedly. He raised several points apparently intended to discredit Cooper: about being paid for testimony (Cooper denied he is), having expenses covered for trip to LA hearing (Cooper affirmed flight and one night hotel were covered by EFF), lost jobs (Cooper denied), mental health diagnoses and medications (also denied), and whether Cooper had ever signed anything on behalf of Steele (some unclear discussion about DMV registrations.)

There was a confusing line of questioning about why Cooper thinks he's being held out as CEO of AF Holdings - Cooper tried to look something up on his phone (and was directed by the judge to stop). Cooper basically insisted that he wasn't the CEO of AF Holdings, and the judge eventually said that whatever was on the documents in evidence would have to be good enough. Hansmeier worked hard to get Cooper to testify "who told you that your name was being held out as CEO of AF Holdings" but Cooper just didn't remember, and focused on his concerns about his signature being misused.

Another line of questioning focused on how Cooper had retained Godfread, and a text message he had received, which was his first alert as to his name being used in association with AF Holdings. Cooper testified that the text had come from a Kim Eckenrode, who is John Steele's mother-in-law. Cooper also testified that he had been referred to Godfread via an attorney whose number Eckenrode had texted to him.

Cooper denied any specific memory of March 18, 2011 (which I believe is the date Steele testified he introduced Cooper to Lutz by phone.) Finally, Hansmeier asked Cooper why he believed Steele owned Prenda Law; Cooper said Steele told him that, but that he had never seen any documents to that effect.

The judge then questioned Cooper, establishing that he had no familiarity with AF Holdings prior to the text from Eckenrode, that Cooper had never worked for AF Holdings or AF Films (Steele had previously testified that he thought any mentions of AF Films were typos), that he'd never signed any documents on behalf of AF Holdings or Films, that the signatures on the copyright assingments in question are not his and that he does not know who signed them, that he did not authorize anyone to sign his name, and that he did not know these documents were being submitted to a court "with what purports to be your signature."

Godfread then questioned his client; Cooper denied Steele approaching him in 2010 about getting involved in the porn industry. He also stated that he did not know about VPR, Inc before last year, nor had he agreed to be an officer or have any other position with that group, nor to authorize use of his signature for that venture. Cooper stated that he had never met Lutz, nor talked to Lutz on the phone, nor ever indirectly told someone to talk to Lutz on his behalf. Cooper said that he did not authorize use of his signature on any documents related to AF Holdings or AF Films.

Godfread introduced a copy of the text from Eckenrode, including an attached image of Cooper's purported signature on a document. There was some discussion about the admissibility of this copy of the text, including questioning from the judge about how Godfread had gotten the text to the page (emailed to himself). It was entered in the record as Exhibit 3, "with all caveats about what it purports to be". Godfread questioned Cooper basically as to whether the printout of the text was what Cooper had received from Eckenrode. The judge asked briefly if Cooper had ever received any money from AF Holdings or VPR, or been employed by AF (no to all.)

Hansmeier then questioned Cooper (or tried to) about Hansmeier's own previous conversations with Cooper. Cooper expressed confusion about whether he'd met Paul Hansmeier or his brother Peter, and maintained that whichever brother had visited the cabin, Cooper had not been around much or talked much with him. Hansmeier brought up that he had stayed in Cooper's own cabin, but Cooper said he'd stayed away during that visit because "I didn't want to deal with you". Hansmeier, apparently taken somewhat aback, said "I didn't know that," and allowed that line of questioning to drop.

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

Hansmeier tried to call Godfread to the stand, and Godfread objected. The judge conferred with his clerk for a bit, questioned Hansmeier as to his intent in questioning Godfread (to establish whether AF Holdings had any knowledge of Cooper's concerns prior to filing the copyright assignments with courts). Godfread reiterated no knowledge on those points. After a bit more conferring, Judge Noel directed the attorneys to Shelton v. American Motors, 805 F 2d 1323 as on point, and said they'd reconvene on that point after lunch.

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

Before lunch, Hansmeier brought Steele back to the stand to address the text message (over Godfread's objections as to Steele's lack of direct knowledge of the conversation.) Steele testified that his mother-in-law is very religious and was very concerned over his involvement with the adult industry, and had been active on Die Troll Die and other sites. He testified that he has no interest in Prenda Law, but that she had gotten over excited about "random guesswork from internet pirates". Hansmeier also questioned Steele as to whether Cooper has any other litigation pending against Steele - he does, but Steele said "it defies logic" that an attorney would forge a signature when he could get anyone in the world to sign a document.

The judge questioned Steele about the text message, eliciting that he doesn't know whether it was sent by his mother-in-law, but that it was consistent with the tone of "anonymous pirates on the internet". He mentioned something about the Secretary of State of Illinois, and Judge Noel followed up to ask about that; Steele testified that the Secretary of State website would show that Prenda was created by Paul Duffy. There was some additional questioning about St Kitts and Nevis, and AF Holdings and Prenda, and that a lot of people incorporate there.

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

When we reconvened after lunch, Hansmeier, having read the case the judge suggested, recalled his request to have Godfread testify. And then things got -really- interesting.

Judge Noel referred to his order for this hearing including an order for Cooper to appear in person, and for an officer of the plaintiff "capable of testifying as to the authenticity" of the documents to also appear. He reviewed the witnesses who had appeared, and noted that we'd heard nothing from AF Holdings - though he mentioned that he was "not sure what Steele's role" was in all this other than being a former partner of Hansmeier... "So," he said, "Where's AF Holdings?"

Hansmeier said that Lutz was planning to come, and is the sole officer of AF Holdings, and did make it to an earlier conference in this case in person, but that he wasn't present today, and that Mr. Hansmeier hadn't been able to reach him by phone or email. He voluntarily elaborated that Steele and Lutz had been booked on the same flight from Miami, that Steele had gone to Lutz's apartment to meet him (because Steele had Lutz's boarding pass), but found him not home. Steele had then, according to Hansmeier, driven around Miami looking for Lutz, and even encountered some of Lutz's friends who said Lutz had told them the night before that he had to make an early night of it because he was traveling to this court in the morning. Hansmeier offered the boarding pass as proof that Lutz had intended to come. (Steele was not present in the courtroom after lunch.)

Godfread suggested that Lutz has repeatedly failed to appear at evidentiary hearings related to AF Holdings cases. Hansmeier responded by stating that Lutz hadn't been able to attend one hearing because he'd been detained by "federal agents" in an airport (the court requested clarification on this point, but all Hansmeier had was that; he stated that Lutz had asked to file further details of that detention, in that case, under seal because the detention was embarrassing.) Hansmeier finally stated that Lutz -has- appeared, before Judge Snow in Arizona, on closely related points.

Judge Noel took this all in, gave parties until close of business tomorrow to file all declarations, and said he'd issue an order "in due course." The court recessed just about ten minutes after convening for the afternoon.


(Edited to correct "Ekkenrud" to "Eckenrode", 10/1/13)

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Best Practices in Fair Use - a couple of thoughts

code-of-best-practices-cover~s200x200.jpgEarlier this week, the Association of Research Libraries released a new document called the Code of Best Practices in Fair Use for Academic and Research Libraries. The document is the result of a multi-year process of interviews and focus groups with librarians and others involved in library work and management, and aims to outline some common situations where many in the library community agree fair use can apply.

Full disclosure: I participated in this project at both the interview and focus group stages. Here are some of my general thoughts on the result:

"Best Practices" vs. "Guidelines"

I really like the community-based best practices approach to talking about fair use, even though it leaves a number of things somewhat uncertain. There is simply no way to provide certainty about fair use that doesn't involve drawing lines far inside the boundaries of what fair use actually allows. And in most situations, guidelines that aim to provide certainty also overstate the bounds of fair use - "30 seconds of video is always okay, more than that is never okay" is terrible information about fair use of video in any context.

Developed with input from members of specific communities of users, these Best Practices documents articulate specific points of fair use that are of high interest to the community in question - where some idea of how to approach the problem would be particularly helpful for community members who are not well-versed in copyright concerns. But the Best Practices documents do not purport to address points (even of high community interest) where informed people don't also largely agree on principles. As the document explicitly states, "[t]he groups also talked about other issues; on some, there seemed not to be a consensus, and group members found others to be less urgent." And those issues are not included in the Best Practices.

I was fascinated to read the Code of Best Practices in Fair Use for Poetry last year, because it articulated several fair use situations I had never considered before, but which were obviously of high interest to people in that community. If I were trying to figure out what the contours of fair use were for poetry readings, I would definitely want to know how things usually work in similar situations. Courts look to common practices to inform the "fairness" and "appropriateness" parts of fair use. Following community norms is not going to save anyone where the community norms are completely out of alignment with the law, but where community norms track reasonably well with legal considerations, they are often considered relevant by courts. As the document points out, "There are very few [fair use] cases specifically involving libraries," so community practices are one of a very few forms of guidance available.

It is difficult to make progress across the uncertain and unlighted landscape of fair use. The bright-line/guidelines approach strongly illuminates a single, supposedly safe path - but leaves travelers entirely unenlightened about the dark areas that comprise the vast majority of the landscape. The Best Practices approach helps us become more aware of the fair use landscape as a whole, and it helps us know where other travelers similar to ourselves have gone and may be going.

"It's totally biased! They didn't consult any copyright owners!"

It's true, they didn't. But this criticism seems wrong-headed on a couple of counts: first, it suggests is that most people who want to understand what fair uses they can make are trying to put one over on copyright owners - but in the cycles of human culture, almost every one of us is both a user and a creator of copyrightable works. There may be opposing sides in copyright discussions, but the idea that the opposing sides of copyright are creators and users is a damaging fiction.

When librarians bring this criticism against a code developed by library organizations, in deep consultation with a large number of library and legal professionals, I'm stymied. Do they think that our entire profession somehow wants to put one over on the creators of all the works we lovingly maintain and make available to the world?

When this criticism comes from major corporate content owners or representatives thereof, I absolutely understand their point. They do have interests in controlling the uses of their work. But (as much as I am loath to bring physical property analogies into the world of intellectual property) I'd offer this comparison: if there is a public easement - a public-right-of-way - over a piece of land, it would be extremely irrational to rely on a land owner to remember the boundaries of a public easement. And if the land owner got to charge money automatically anytime someone stepped outside of the easement (as with copyright's statutory damages), the land owner's incentive to narrow the easement over time would be very very high.

The Eight Principles

There are the eight Principles outlined in the Best Practices document. Each Principle is accompanied by a much more detailed Description of the kinds of situations where it might be relevant, Limitations that must be considered before a use could possibly be fair, and Enhancements that might strengthen fair use arguments. All of that material should be consulted in detail to really understand any of these Principles. Moreover, ARL and the authors have provided an excellent collection of accompanying materials for better understanding, including FAQs (for librarians, for professors, for students), videos, explanations of this unique approach to understanding fair use, and quite a bit more. Go get yourself more educated! I sure plan to!)

Here are the principles:

  1. It is fair use to make appropriately tailored course-related content available to enrolled students via digital networks.
  2. It is fair use for a library to use appropriate selections from collection materials to increase public awareness and engagement with these collections and to promote new scholarship drawing on them.
  3. It is fair use to make digital copies of collection items that are likely to deteriorate or that exist only in difficult-to-access formats, for purposes of preservation, and to make those copies available as surrogates for fragile or otherwise inaccessible materials.
  4. It is fair use to create digital versions of a library's special collections and archives and to make these versions electronically accessible in appropriate contexts.
  5. When fully accessible copies are not readily available from commercial sources, it is fair use for a library to (1) reproduce materials in its collection in accessible formats for the disabled upon request, and (2) retain those reproductions for use in meeting subsequent requests from qualified patrons.
  6. It is fair use for a library to receive material for its institutional repository, and make deposited works publicly available in unredacted form, including items that contain copyrighted material that is included on the basis of fair use. 
  7. It is fair use for libraries to develop and facilitate the development of digital databases of collection items to enable nonconsumptive analysis across the collection for both scholarly and reference purposes.
  8. It is fair use to create topically based collections of websites and other materials from the Internet and to make them available for scholarly use. 
It is unfortunate that principle number 5, that it's fair use to make things available to people with disabilities, even needs to be articulated. It is incredibly frustrating that there is a constant need to make this kind of fair use (i.e., that most content is not made available in accessible formats as a matter of course.) And it is utterly shameful that there are organizations and individuals out there who, right now, actively fight against copyright and DRM exceptions for people with print disabilities.

Otherwise, I don't think it's all that important or helpful to talk about the details of each principle from a general perspective. The details only really make sense in relation to an actual library's actual use concerns.

In a few places, a Principle seems a bit more vague than is entirely helpful - but I found the accompanying Limitations and Enhancements helped me understand what they were getting at. The Limitations, in particular, are extremely helpful in understanding the finer legal considerations underlying of each of the Principles.

Overall, the principles seem like reasonable articulations of fair use practices, and are helpfully on point to activities that are increasingly common in libraries. Several of the principles strike me as blindingly obvious applications of fair use in almost any library situation, although I know some institutions have avoided taking full advantage of fair use rights due to uncertainty or a more risk-avoidant institutional mindset.

The specific facts are of course still the real determinants of whether a particular use is fair, and of whether and how an institution chooses to tolerate the uncertainty that is necessarily concomitant with a fair use justification for any activities. But the Best Practices document gives the library community a great jumping-off point for deeper examinations of many of our common copyright use situations, and are a great contribution to the toolbox of anyone dealing with copyright issues, in libraries and beyond.

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Spring Copyright Workshops Open!

The University of Minnesota Libraries offer three different basic copyright workshops for the UMN community. Most are aimed at faculty, but may be open to participation by others. We also offer custom workshops on specific topics, or at specific dates and times, for University of Minnesota departments, workgroups, etc. RCR continuing ed credit is often available. Feel free to contact me to set one up.

If you're not affiliated with the U of MN, but would like to attend one of the online sessions just to listen in, contact me via email. I'll open reg as space is available, and will give preference to librarians looking to develop their own copyright knowledge (or teaching).

Here's the schedule!

Can I Use That?: Dealing with Copyright in Everyday Life

Quotation, criticism, review, collage, parody - Copyright presents some big challenges in all of those situations! Participants in this workshop will develop an understanding of the complexities of copyright by exploring examples from visual arts, music, and video, as well as academic research and writing. Expect to think hard, discuss a little, and have fun! No direct legal advice will be provided; this workshop is informational in nature.

Primarily intended for faculty, researchers, and graduate students engaged in the scholarly writing & publishing process. Satisfies RCR continuing education awareness/discussion requirements.

Mon, 02/13/2012 - 2:00pm - 4:00pm
Location: 310 Walter Library

Mon, 03/05/2012 - 2:00pm - 4:00pm
Location: S30A Wilson Library

Wed, 03/07/2012 - 1:00pm - 3:00pm
ONLINE-ONLY session via UM-Connect. Priority given to participants from UM coordinate campuses (Crookston, Duluth, Morris, Rochester) or other UM-affiliates who work out-state.

Copyright Essentials for Authors and Creators

How many copyrights do you own? How long will they last? Can you post your paper online? Can someone else quote from your paper in their own? This workshop will provide a solid grounding in some of the elements of copyright law that are essential to scholarship, teaching, and research. Learn more about protections in the law for educators, and about your rights as an author or creator. Discuss and debate with your peers about some of the burning questions in the field, and enjoy exploring some entertaining and thought-provoking examples. No direct legal advice will be provided; this workshop is informational and educational in nature.

Primarily intended for faculty, researchers, and graduate students engaged in the scholarly writing & publishing process. Satisfies RCR continuing education awareness/discussion requirements.

Wed, 02/22/2012 - 2:00pm - 4:00pm
Location: Magrath Library Instruction Room (Room 81)

Tue, 02/28/2012 - 10:00am - 12:00pm
Location: 101 Walter Library

Fri, 03/23/2012 - 10:00am - 12:00pm
ONLINE-ONLY session via UM-Connect. Priority given to participants from UM coordinate campuses (Crookston, Duluth, Morris, Rochester) or other UM-affiliates who work out-state.
Copyright in the Classroom (and Online)

Can you show a movie in class? Can you distribute copies of a newspaper article? What are you allowed to post on your Moodle site, anyway? What about your students' work, or their online postings? This workshop focuses on copyright issues in the classroom, and in teaching online. Learn how the library can help you with electronic reserves and links to subscription materials. No direct legal advice will be provided; this workshop is informational in nature.

Primarily intended for individuals currently teaching at the University.


Fri, 02/03/2012 - 1:00pm - 3:00pm
Location: S30A Wilson Library

Mon, 02/06/2012 - 10:00am - 12:00pm
Location: Magrath Library Instruction Room (Room 81)

Register: http://z.umn.edu/copyrightinclassroom
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Current Issues in Higher Ed Copyright

Not the post I promised, but this week has been a little... weird. Mostly for good reasons.

One of the good things this week was that I met with the University Senate Library Committee to touch base on copyright issues. I was asked to provide a summary of some current hot copyright issues in higher education - so here's that summary (with bonus links to more info!)

Georgia State Case (aka Cambridge University Press et al v. Patton et al) 

Individuals at Georgia State University were sued over the use of journal articles in password-protected electronic reserves and course websites. The parties bringing suit include Sage Publications, Oxford University Press, and Cambridge University Press. Legal expenses of the publisher-plaintiffs are being subsidized about 50% by the non-profit and ostensibly neutral Copyright Clearance Center.

Oral arguments were heard in June, and an opinion is expected at any time. Because the case is currently in District Court (Northern District of Georgia), itis likely any opinion will be appealed. Final rulings are likely many years away. However, it is worth noting that the publisher-plaintiffs have asked the court to find that the 1976 "Classroom Copying Guidelines" (which were intended to outline some minimum standards for fair use) are an appropriate maximum measure of fair use today. They have also asked that the court hold that no more than 10% of any course-based uses should be allowed to proceed without payment, regardless of compliance with the Classroom Copying Guidelines, or use of paid subscription materials or non-copyright-protected materials.

More information:
My own prior posts on this case.
Kevin Smith's "A Nightmare Scenario for Higher Education"

UCLA Case (aka AIME et al. v. Regents of UCLA et al.)

The Regents of UCLA, as well as some individuals, were sued over the conversion of video content owned by the University to online streaming formats. The case was dismissed last week, for a number of reasons. In addition to technical issues such as sovereign immunity and lack of standing, the court ruled that the licenses the University had already purchased for "public performance" covered the online streaming when restricted to UCLA users. They also ruled that incidental copies made in pursuit of the legitimate licensed rights were fair use.

More information:
Christine Ross - "V is for (small) Victory (and for Video)"
Peggy Hoon - "Copyright, Contract, or Complicated? AIME vs. UCLA Dismissed: Implications for Licensing"

Golan v. Holder

A music professor (and professional conductor) is the named plaintiff in this case, which challenges legislation that removed many older foreign works from the public domain (in compliance with some of our treaty obligations.) Oral arguments were heard before the Supreme Court last week. 

More Information:
The Chronicle of Higher Education - "Supreme Court Takes Up Scholar's Rights" by Marc Parry
New York Times editorial in support of the professor-plaintiff - "The Public Domain"

Campus licenses (CCC; CPC; Canada)

In recent years, the Copyright Clearance Center (CCC) has been selling "blanket" licenses in which a single payment satisfies copyright permissions issues across all campus uses. A number of U.S. institutions have signed on to this sort of license, but it is not a complete solution: the CCC does not have the power to authorize the use of some of the materials used on campuses. Although their blanket license has been suggested as a solution to the issues presented in the Georgia State case, they do not clear rights for works owned by Cambridge University Press, one of the plaintiffs!

More Information (on licensing in general):
ARL Policy blog/Brandon Butler - "How Many Times Must Libraries Pay for the Same Coffee, er, Content?"
Paul Courant - "Georgia State in Publishers Weekly: Tom Allen of the AAP vs. Moi"

Canadian institutions are currently grappling with the opposite side of blanket licensing; for many years, academic use in Canada has been (largely) covered by a nationalized blanket license to an organization called Access Copyright. Access Copyright recently raised the rates by a large amount, and a number of universities have balked at the cost. Recently, at least one judicial proceeding has determined that Access Copyright can legally refuse to sell universities licenses on a case-by-case basis - a big setback for the Universities. Some of them are working with the CCC on case-by-case or blanket licensing. Others are committing to the use of nothing but public domain and open-licensed materials on their campuses.

More Information:
Howard Knopf - "Copyright Board Refuses to Require Transactional Licenses from Access Copyright or its Rights Holders"
Michael Geist - "An Unofficial FAQ on Canadian Universities Opting-Out of Access Copyright" and heck, ALL of his posts about this issue.

Google Books settlement

Parties related to the Google book scanning project have been negotiating about terms of a settlement for several years. The presiding judge has denied proposed settlement terms for a number of different reasons, and it is looking increasingly unlikely that a large-scale solution will be found via this process. Google is proceeding with the project, but seems to be pursuing a variety of paths to resolve outstanding legal issues.

Hathi Trust Orphans suit (aka Authors Guild, Inc. et al. v. HathiTrust et al.)

Hathi Trust is a partnership of major research institutions and libraries that hosts a large online library of digitized works, mostly public domain. Recently Hathi announced plans to identify "orphan" works in their collection - currently in-copyright works for which no rightsholder is identifiable or contactable - and make them viewable by individuals on partner campuses. Although discussions had been proceeding between the Authors Guild and Hathi on this issue, the Authors Guild unexpectedly filed suit on September 12.  The suit attacks library digitization very broadly - despite the fact that, as yet, Hathi Trust still only provides full-text access to public domain works. A number of international authors' groups have just announced they are joining the suit. It is very unclear exactly how the case will proceed.

Due to concerns about the procedures for reviewing orphan status, the Orphan Works Project has been put on hold at present. However, it is not being shut down; Hathi Trust has expressed a commitment to their plans, and a firm belief in the fair use legal justification for the project. 

More Information:
Kenny Crews - "HathiTrust and the Litigation Path"
James Grimmelmann - "The Procedural Swamp"
University of Michigan FAQ on the University's Digitization Efforts

There are, of course, lots of OTHER issues in higher ed copyright right now, but those are the ones I had time to write about for yesterday's meeting, and update today!

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Fall Copyright workshops up!

The slate of copyright workshops from the University of Minnesota Libraries is (finally) up, and available for registration. Changed the names around a bit from last semester, and added a new workshop specifically on copyright issues in online teaching.

We'll be adding a few online-only workshop sessions a little later in the semester for folks at the more remote campuses. If you're not affiliated with the U of MN, but would like to attend one of the online sessions just to listen in, contact me via email. I'll open reg as space is available, and will give preference to librarians looking to develop their own copyright knowledge (or teaching).

Here's the schedule!

Can I Use That? Dealing with Copyright in Everyday Life (Grad students, Staff, others)

Do you remix, re-use, review, quote, criticize, parodize? Copyright presents some big challenges in all of those situations! We'll learn by exploring examples from visual arts, music, and video, as well as academic research and writing. Expect to think hard, discuss a little, and have fun! No direct legal advice will be provided; this workshop is informational in nature.
Primarily intended for grad students, staff, and interested others.

Mon, 10/31/2011 - 1:00pm - 3:00pm
Location: 314 Walter Library

Register:
http://z.umn.edu/caniuseg


Can I Use That?: Dealing with Copyright in Everyday Life (Faculty, Other Scholarly Researchers)

Quotation, criticism, review, collage, parody - Copyright presents some big challenges in all of those situations! Participants in this workshop will develop an understanding of the complexities of copyright by exploring examples from visual arts, music, and video, as well as academic research and writing. Expect to think hard, discuss a little, and have fun! No direct legal advice will be provided; this workshop is informational in nature.
Primarily intended for faculty, researchers, and graduate students engaged in the scholarly writing & publishing process. Satisfies RCR continuing education awareness/discussion requirements.

Wed, 10/05/2011 - 10:30am - 12:30pm
Location: 314 Walter Library

Thu, 11/03/2011 - 1:00pm - 3:00pm
Location: Magrath Library Instruction Room (Room 81)

Register: http://z.umn.edu/caniusef


Copyright Essentials for Authors and Creators

How many copyrights do you own? How long will they last? Can you post your paper online? Can someone else quote from your paper in their own? This workshop will provide a solid grounding in some of the elements of copyright law that are essential to scholarship, teaching, and research. Learn more about protections in the law for educators, and about your rights as an author or creator. Discuss and debate with your peers about some of the burning questions in the field, and enjoy exploring some entertaining and thought-provoking examples. No direct legal advice will be provided; this workshop is informational and educational in nature.
Primarily intended for faculty, researchers, and graduate students engaged in the scholarly writing & publishing process. Satisfies RCR continuing education awareness/discussion requirements.

Tue, 10/18/2011 - 2:00pm - 4:00pm
Location: S30A Wilson Library

Wed, 11/16/2011 - 1:00pm - 3:00pm
Location: 314 Walter Library

Register: http://z.umn.edu/copyrightforauthors


Copyright in the Classroom (and Online)

Can you show a movie in class? Can you distribute copies of a newspaper article? What are you allowed to post on your Moodle site, anyway? What about your students' work, or their online postings? This workshop focuses on copyright issues in the classroom, and in teaching online. Learn how the library can help you with electronic reserves and links to subscription materials. No direct legal advice will be provided; this workshop is informational in nature.
Primarily intended for individuals currently teaching at the University.
RCR continuing education credits applied for, pending approval.

Thu, 09/29/2011 - 10:00am - 12:00pm
Location: S30A Wilson Library

Tue, 10/11/2011 - 2:30pm - 4:30pm
Location: Magrath Library Instruction Room (Room 81)

Register: http://z.umn.edu/copyrightinclassroom
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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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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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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.

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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.

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This page is an archive of recent entries in the news category.

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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.

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