Earlier 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.

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!

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.

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.


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

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!

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.

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.

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.


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

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!

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.

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.

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.

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

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

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

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

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

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

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

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

More Information

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

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

You may or may not have heard about the extensive saga that is George Lucas' dispute with one of the costumers/prop makers from the original Star Wars series about the copyright in Stormtrooper costumes. The prop maker has been using the molds he used to make the original props for the movies to produce and sell new Stormtrooper costume pieces for the fan costume and memorabilia market. Lucas does not like this, and wants the prop maker to stop.

It's an interesting story for copyright geeks, with some very technical wrinkles. Although the helmet designs did not originate with the prop maker, he made modifications and alterations to the design in the mold-making and casting process, so to some extent the designs are "original" to the prop maker. So who owns the design of the helmets as they came out of the mold? More fundamentally, there is a big issue as to whether a helmet is a "sculpture" (and hence copyrightable), or a utilitarian object (and hence, not ownable under UK law).

There are also some interesting international-law issues, and (although not directly applicable in the current instance of the lawsuit) some parallels to the works-for-hire/termination-of-transfers issues that are raging through the comic-book world lately (I'll probably blog about that at some point, too. Comic book copyright issues are really cool!)

Why Should I Care Who Owns Stormtrooper Designs? I'm Not A Copyright Geek or a Star Wars Fan!

Technical copyright-geekery aside, this case points up some broader public interest issues in intellectual property and popular culture. Without suggesting that George Lucas, Lucasfilm (and a bajillion other entities) don't/shouldn't have any property-like interests in their creative works, Star Wars is a great example of a creative work that has taken on a lot of additional social meaning beyond Lucas's contributions. The photos illustrating this post show just a few of the directions this property has been taken by the forces of human culture.

If Star Wars didn't have this additional meaning, there wouldn't be enough interest in Stormtrooper costumes for the prop maker to exploit! And although the cultural significance of Star Wars is certainly aided and abetted by the massive industrial content producer that is the Lucasarts empire, quite a bit of the social significance and meaning of Star Wars has only weak ties to Lucas's properties, and/or represents tremendous creativity and meaning-building outside of formal authorship and ownership structures.

We All Have Our Own Stormtrooper Costumes Somewhere (not literally, although there are more than you might think...)

It's worth considering that under the first U.S. copyright term, the copyright in Episode IV (the first Star Wars movie, released in 1977) would have expired in 2005. Of course, that's not the term Episode IV was actually created or released under, and copyright law as formulated in the first U.S. copyright act would have no idea what to do with something like the Star Wars franchise. However, copyright law as formulated in early U.S. copyright acts would also have had very little conception that an individual's personal interactions with contemporary content could rise to the level of infringement.

Whether you're building a screen-accurate replica Star Wars costume for yourself (or your offspring) in your spare time or not, chances are there are elements of contemporary content with which you connect and interact on a very personal level. And since copyright ownership is so expansive, chances are many of those pieces of culture that are significant to you are legally owned by someone else, who has a legal right to stop you from doing some of the things you like to do with that content. Fair use is one part of the law that makes a little room for personal interactions with content. But since a lawsuit to establish whether a use is fair or not is very costly, most settled law around fair use reflects the interests of industrial content providers. Occasionally, industrial interests lose fair use cases anyway, often because a court has recognized a greater public interest - see Campbell v. Acuff-Rose (the "Pretty Woman" case), for example.

Judge Kozinski made some important observations in Mattel, Inc. v. MCA Records, Inc. (the "Barbie Girl" case): "Trademarks often fill in gaps in our vocabulary and add a contemporary flavor to our expressions. Once imbued with such expressive value, the trademark becomes a word in our language and assumes a role outside the bounds of trademark law." (see paragraph 9) Of course, trademark and copyright are not as similar as many people think, but the central point rings true across all intellectual property that affects culturally meaningful works - while the works are certainly products of their creators, their cultural significance is a product of larger, more public, more communal, cultural forces. Yet much of the time, the law does not recognize those public and personal forces as officially legitimate.

Expanded copyright protection may (may) have increased production of resource-intensive products like the Star Wars universe. But it also means that our culture does not legally belong to us. Something to keep in mind the next time someone starts talking about copyright "balancing" public and private interests.

(True confession: One main reason I started writing this post was to use action figure photos as illustrations. It got more reflective after I started writing.This also represents the first post on this blog where some images are being used under a fair use rationale, rather than Creative Commons licenses.)