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11th Circuit Rules On Georgia State Fair Use Case

The 11th Circuit Court of Appeals issued its ruling today in Cambridge University Press et. al. v. Patton - otherwise known as "the Georgia State case." This is a case in which academic publishers (Cambridge UP, Oxford UP, and Sage) sued a public university for use of excerpts from books in online e-reserves and course websites. (Lawsuits funded in part by the ostensibly-neutral Copyright Clearance Center.)

Previously, the District Court ruled that most of the uses in question were fair use. On appeal, it didn't look like things were necessarily going well for academic users. Indeed, today's ruling reverses the lower court's rulings, vacates some results of the ruling, and remands the case back to the lower court for reconsideration in light of the corrections made in today's ruling. But given the possibilities contemplated after oral arguments, (and heck, given the concurring opinion attached to this ruling) things definitely could be worse!

Excellently Good Things

  • The court's opinion confirms that the 1976 Classroom Copying Guidelines are not law, and not an appropriate lens through which to consider fair use in course contexts. (The court also affirms that even though the Guidelines are maybe informative, they were originally intended as a floor, not a ceiling, on fair use.)

    Maybe this isn't great news to the many folks who have (quite correctly) long-since abandoned applying any mental energy to the outdated Guidelines. However, I regularly encounter librarians, library workers, teachers, and other educators who have received no other information about fair use - and often, these folks have explicitly been trained that the Guidelines are the One True (and complete maximum) Way to Know Fair Use in classroom contexts. (Oddly enough, many of them have also received their only copyright training at no cost, from generous publishers...) Having an affirming court opinion to refer to that clearly refutes the applicability of the Classroom Guidelines is quite a blessing, from my perspective.

  • The court extensively discusses the public purpose of copyright law. Section B of the opinion (page 46-55) is a masterfully written, quite clear overview of the theoretical underpinnings of U.S. copyright law in general, and of fair use in particular. (I think it's a bit weaker in the second half, but pages 46-50 are really darn good reading.)

    The idea that creator remuneration is -secondary- to the actual purpose of copyright law is often left out of a lot of related public discourse. Most artists (and most lawyers I've met who represent artists or corporate creators) would put creator remuneration at the center of copyright. But this opinion (quoting from many, many other opinions) affirms again that "[p]romoting the creation and dissemination of ideas has been the goal" since the Statute of Anne, and that this is because the creation and dissemination of ideas is a public good. Moreover, the court affirms that "[t]he fair use doctrine also critically limits the scope of the monopoly granted to authors under the Copyright Act in order to promote the public benefit copyright is intended to achieve." 
  • The court agreed that case-by-case, or work-by-work is the appropriate approach to fair use. Since the alternative the Plaintiffs were arguing for was that "a nebulous cloud of infringements purportedly caused by GSU's 'ongoing practices'" were the correct form of inquiry, all institutions that rely on fair use in daily practice got off well here.

  • The court agreed that non-profit educational purposes are especially valuable under fair use law. "Congress devoted extensive effort to ensure that fair use would allow for educational copying under the proper circumstances and was sufficiently determined to achieve this goal that it amended the text of the statute at the eleventh hour in order to expressly state it."

  • The court affirmed that relevance to a pedagogical goal -is- relevant to fair use. (p. 86) (Plaintiffs had argued relevance to purpose was only relevant for transformative, parodic uses.)

  • The court disapproved of Judge Evans' blanket 10%-or-one-chapter rule. While avoiding bright line rules does make life more difficult for end-users, this was a bright line very few people were comfortable with; it limits other interplays such as relevance to pedagogical purpose.

  • The court would not consider the argument (apparently raised late in the deliberations of the District Court) that the correct frame of reference for measuring the "amount" of the work being used was a single chapter, rather than the whole book. Since the Plaintiffs primarily went along with arguments about how to determine the number of pages in the book, in order to determine how much of the book each chapter was, the court agreed that the discussion had to be had in terms of how much of the book each chapter was, not how much of the chapter.

    Something to remember for your litigation practice, law students. Raise it too late, and the argument's gone.

  • In addition to rejecting the applicability of the Classroom Copying Guidelines, the court also rejected the coursepack copying cases as binding authority, or apparently even as very persuasive. They're vaguely acknowledged, but not followed.

  • The court soundly rejects the idea that excerpts from books substitute for sales of the -actual books-. (p. 94) Unfortunately but unsurprisingly, it then goes on to confirm that unlicensed excerpts do substitute for sales of licenses-to-excerpt. But, also happily, it does affirm that "the ability to license does not demand a finding against fair use." (p. 95)

Not-Surprising Things

  • Section B of the opinion is, as I said, a masterful overview of the theoretical underpinnings of U.S. copyright law. Since we frame our law as deeply tied to economic incentives for authors to create, it's not surprising that this section has extensive discussion of how allowing too much "unpaid copying" will harm the economic incentives, and thus result in an outcome that doesn't further the public good of ongoing development of new knowledge and ideas.

    Two things bother me about the focus on economic incentives - but these things bother me about U.S. copyright theory in general, not this opinion in particular. The first is that this discussion completely fails to acknowledge the many other incentives creators have for creating. In particular, in academic contexts, creators fairly -rarely- receive direct economic benefits for their copyright ownership; its not entirely absent, but definitely a peripheral motive. But even outside academia, there are a lot of other reasons people create.

    The other thing that bothers me about the focus on economic incentives is that market models don't actually reflect reality. I could get into deep critique of Coase or whatever, but this is a blog, and it's Friday night, and also, there are reasons I didn't go into economics full time. However, even the court in this opinion fully acknowledges that we have to do away with a lot of reality to delve much into fair use and economic incentives: "in making fair use determinations, we must conjure up a hypothetical, perfect market for the work in question, consisting of the whole universe of those who might buy it, in which everyone involved has perfect knowledge of the value of the work to its author and to potential buyers, and excluding for the moment any potential fair uses of the work. Then, keeping in mind the purposes animating copyright law--the fostering of learning and the creation of new works--we must determine how much of that value the implied licensee-fair users can capture before the value of the remaining market is so diminished that it no longer makes economic sense for the author--or a subsequent holder of the copyright--to propagate the work in the first place." (p. 51) (emphasis mine)

  • The court affirmed that course readings are not transformative use. Although I respect the acumen of my colleagues who have argued otherwise, this has always seemed fairly straightforward to me. I am heartened that the court -also- affirmed that transformative purpose is NOT required to find that the "purpose" factor favors the user.

  • The court found that Judge Evans erred in making a blanket determination that the works copied were primarily "factual". You have to look at each work individually, and determining the specific balance within a work is a pretty fine job. (The court also said, though, that this factor is not particularly important in the specific fair use analysis at hand.)

  • The Appeals court held that availability of licenses to digitally excerpt a work was correctly determined by the District Court to affect whether there was market harm.

  • Some of the additional considerations that Judge Evans entertained outside of the "four factors" analysis were held to more properly belong within it. (pp. 106-110)

Weird Things

  • There is a weird element of Section B, where the court describes fair use as an "implied-by-law" license that creators grant in return for the grant of monopoly rights through copyright. While I'm familiar with framing fair use as a quid pro quo for protection most of the time, the framing of it as an "implied license" feels very strange.

  • There's a mildly terrifying digression on pp. 67-70 into whether indirect benefits to a non-profit educational user can obviate their non-profit educational purpose (or at least counterweight it.) Thankfully, the court eventually concludes that "If this analysis were
    persuasive, no use could qualify as "nonprofit" under the first factor. Moreover, if
    the use is a fair use, then the copyright owner is not entitled to charge for the use,
    and there is no "customary price" to be paid in the first place."

    However, the court goes on to entertain, and answer in the negative, questions about whether GSU gained reputational benefits from its course copying. If these indirect reputational benefits undercut a non-profit educational purpose, it raises all kinds of odd issues for fair use in contexts like conference presentations! I'm going to think more about this (and do more research into the lines of fair use cases about indirect, noneconomic benefits.)

  • The court observed that industry "best practices" are "not relevant to individualized fair use analysis". That could be a bad thing, because sometimes industry practices are all we have to go on to determine fair use. But it was a fairly glossed-over discussion, and they may have meant just that individual circumstances of a specific use case are more important than overall best practices...

Things I Don't Like

  • The court's emphasis on how important market harm is, and the subtle and nuanced interplay of the four factors is not at all unexpected. I'm not a fan of their holding that, because they are not transformative, the uses in question are highly likely to be market-substitutions, and thus that the market harm factor is especially important. This, too, though, is not unexpected.

    The thing I really don't like is that the court's emphasis on subtle interplays, and especially on the extra weighting of the fourth factor, creates some incredible barriers for the people who actually have to make fair use determinations about course readings - instructors! By placing additional weight on market harm - a factor about which end users have almost no information - the court is creating major difficulties for end users. It would be hard, but not impossible, for many instructors to find out if a license is available. It's really quite out of the question for individual instructors to correctly hypothesize -future- directions of the market...

    I might be less frustrated by this if the court were not quite so emphatic in its embrace of the importance and value of educational fair use elsewhere: "allowing latitude for educational fair use promotes the goals of copyright." Teachers, definitely use fair use sometimes! Just, do so while having sophisticated business analysis skills for companies about which you have no data!"

    [Edit: Please note, my suggestion that nuance creates challenges for end-users does NOT mean that I think "everyone should just pay for everything" is a remotely reasonable or workable alternative. Nuance is at the heart of fair use, and end users can deal with a lot of uncertainty. Just, particularly when its about information end-users -don't have-, it's problematic.]

  • My frustration in the bullet immediately above is also reflective of another broad-scale problem with current copyright laws. They were drafted for a time when, in order to commit infringement on a scale that was noticeable by copyright holders, one more or less had to have some level of industrial-scale resources. It may have been reasonable then to expect that potential fair users could engage in a complex, intertwined, nuanced and even sort of iterative fair use analysis (though query whether courts -did-, in the '70s). But today, users at a much smaller and more individual scale are the target of infringement lawsuits, and if the statutes haven't been updated, legal analyses could at least take that into account.

    Judge Evans' decision in the District Court, while taking some unusual tacks, was in some ways more on track to provide clarity to the actual individuals who have to make assessments about fair use in instructional contexts. The 11th Circuit opinion takes us (and her, my goodness I don't envy the review on remand) further away from that.

    But perhaps legislative reform is a more appropriate path for developing clarity for end-users. (Ha! I crack myself up.)

  • I sort of feel like factor 1 either intertwines with factor 4, -or- factor 3, but both? Really?? (p. 82)

  • Oh, wait, almost forgot. I don't like that this opinion reverses the lower court's opinion. It would've been nice to have a stronger affirmation of educational fair use. Further legal opinions (if they come) are likely to range from a lot to a bit more limiting. But that's not 100% clear, and they may not come.
Judge Vinson's concurrence is a really nice thing to read -after- the opinion, if you are someone who favors educational fair use. Things could have gone much, much worse. (Non-legal-beagles: a concurrence means (in this instance, at least) that Judge Vinson agrees on overturning the District Court's opinion, and vacating its orders, and remanding the case for further consideration. He just thinks those are the correct course of action for wholly different reasons; i.e., he seems 100% certain that GSU should be paying for ALL COPIES OF EVERYTHING.)

It is difficult to predict what will happen next. This is not a slam-dunk case for the publishers, though it does favor them more than the first District Court opinion. Remand and review will require a great deal of time and resources, again, and the parties may feel that it's not worth that investment, and settle. If so, we won't get more rulings from courts. If they don't settle, we'll get another District Court ruling, different from, but perhaps not entirely overturning, the previous one. And perhaps another appeal after that, and...

In the meantime, it may also be worth remembering that none of this legal interpretation is binding law outside of the 11th Circuit (Alabama, Florida, Georgia.) In other states, we can look to these opinions for guidance, but we can also explore different paths.

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Free and Legal Stuff You Can USE!

Adapted from a presentation today at "Enhancing Quality Staff 2012", which a really fun and engaging symposium, and always really well-run (by UMN Libraries colleagues.)

Sometimes it gets a little tiring to work through all the details of copyright exemptions and exceptions. Especially when we're building on other people's stuff to make new things, we can make choices that make everything WAY EASIER - just search for inspiration amongst stuff you already know you can use!

(Note: this is all highly U.S-centric. Sorry, international folks, I don't know your public domain laws. Creative Commons should port, though!)

You Can Use Stuff When...

Copyright doesn't apply
This is also known as the public domain - the body of works available for all of us to use. We all own them! Sometimes it's hard to figure out if something is in the public domain, but there are two times when it's fairly easy:

If it was published, in the United States, prior to 1923
If it was produced by the U.S. federal government.

There is a ton of other stuff in the public domain, including things from well after 1923, but that's the easy stuff.

ETA, 6/27/12: please note that neither one of these situations is always 100% easy! For the 1923 cut off rule, "publication" can be an issue (e.g., letters in an attic from 1912 - probably never published, possibly not public domain.) And many federal government resources are produced by contractors, who may own the rights. You may need to learn quite a bit more, to make determinations about public domain status for yourself.

If someone other than you is making the assessment of public domain status, you will want to consider the reliability and authoritativeness of that assessment.

Permission has been granted
Here's one way to know you have permission: "Can I use this?" "Yes."

This often works well when you can make contact with the creator directly, but note, this only works if you ask the person who owns the copyright - which is often not the creator!

Open licenses are another way to know you have permission - it's a form of licensing where the rightsholder gives the whole world a license to use the work (though sometimes with some restrictions.) Creative Commons licenses are the most common form of open content licenses; free and open-source software licenses are another example.

Places to Find Stuff You Can Use

Creative Commons Search -
Search through many different sites for Creative Commons licensed content in a variety of media.

Internet Archive -
Slightly overwhelming listing of multimedia content. Creative Commons (& other open licenses) and public domain.

"The Commons" on Flickr -
Photos from archives & museums with "no known copyright restrictions" (i.e., probably public domain)

Open Clipart
Vector/clipart images. Widely varying quality. All public domain*.

Flickr Creative Commons content -
Use the advanced search interface on Flickr to find only Creative Commons licensed photographs.

Musopen -
Collection of sheet music and recordings. All public domain*.

CC Mixter -
Collection of sound samples and finished musical works. All Creative Commons licensed.

Jamendo -
Music site. All Creative Commons licensed. In and out of service, lately.

Magnatune -
Music site. All Creative Commons licensed, but primarily available to fee-paying members.

Project Gutenberg -
Collection of text and scanned-image copies of books. All public domain.

Open Library -
Project of the Internet Archive - somewhat free e-books. Public domain and other.

Volunteer-read audiobooks. All public domain*.

Many authors have also released new books under Creative Commons licenses, but they're not easily searchable from any one location.

Al Jazeera's Creative Commons footage -
Some of the better Creative-Commons licensed documentary footage available, though of course with limited topic coverage.
Vimeo -
Video site; allows creators to apply Creative Commons licenses to their videos. You can browse CC-licensed videos from this page.

Blip -
Video site; there is CC-licensed content on here, but no easy search interface that I can find at the moment.  

You can also search YouTube including "creative commons" as part of your search words - then check the full info to see if the video is licensed. (Or look at for info on how to license, but they don't quite support the full suite of licenses.)

*For any new work, including present-day recordings of public domain music, copyright automatically exists from the time of creation. Although some creators or performers may want to relinquish all their rights, it's actually kind of legally difficult to do that - most countries, the U.S. included, automatically give some rights that creators cannot sell or give away. Several of the "public domain" resources on this list include new content, but creators on these projects usually at least intend to cede their rights.

Stuff to Help You Use This Stuff

The following free and open-source software is all stuff I use (or have fairly recently used) on my personal computer (Linux Mint), my work PC, or both. -
Completely free and open suite of office software that interoperates pretty well with Microsoft.

VLC Media Player
Audio/video player. Will play any format you throw at it.

GIMP (the Gnu Image Manipulation Program) -
Photo editor - like Photoshop, but free and legal to install on as many computers as you want! Very full-featured, slightly different interface, but if you give it a couple of days, the adjustment is easy even for a longtime Photoshop user.

A vector image editor (like CorelDraw or Illustrator). Vector art is infinitely scaleable without loss of print quality, so this is a good tool for making posters, flyers, other one-page layouts. Most clipart (including all the .SVG files on is vector art.

Audacity -
Great audio recorder, mixer, and editor.

VirtualDub -
A good stripped-down open source program for basic video editing.

Zotero -
A very full-featured citation management program that is a browser plugin for Firefox, and that integrates with MSOffice and open office suites.

If you've got any favorite open content, public domain content, or open source software resources, feel free to add in the comments! Anon commenting is okay, but I'm a slow moderator. :)

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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Walking the walk

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

presentation slide: no more Nice Librarian

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

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

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

presentation slide: We are not the copyright police

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

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

time to put our benjamins where our mouths are

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

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


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

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

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

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

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

When & why I Talk About Fair Use

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

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

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

Breathing Space

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

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

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

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

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

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

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

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News from UMN Copyright Program...

Coming tomorrow, a whole new UMN Copyright Website!

The new site will replace the old site sometime Wednesday morning,
at the current URL -

Here's a sneak preview:
SitePreview.pngIt's not 100% done - but we don't expect it ever will be! Part of the overhaul was moving the site to a new, easier-to-update content management system. The other goals of the overhaul are to provide more up-to-date information in more easily understood formats. Consider this something of a public beta - we welcome your feedback and input!

And coming soon - copyright info videos!

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Sweaters (Joys of the Public Domain)

It's a little cold lately, here in Minnesota in general, and in my office in particular. I understand that several other parts of the country are also a little chilly +/- snowy. In the interests of spreading thoughts, at least, of warmth, the topic of today's "Joys of the Public Domain" post is...


(Click on any picture to go to the original full image page.)

Sweaters are useful pieces of clothing in many contexts. We (humanity in general) have apparently been knitting for at least three thousand years. (That link goes to the Wikipedia article on knitting. The one on sweaters cites no sources at all, though some of its unsubstantiated information is interesting or amusing.)

It's amazing how far back some photos go:

Close-up very old photo of a boy in large hat, wearing dark-and-light patterned sweaterOld close-up photo of bearded fisherman, smoking a pipe and wearing a textured sweaterThe Swedish fishing family in the picture at left was photographed in 1863. The fisherman at right, in a sweater with a fairly intricate knit texture, posed for his portrait around 1900.
Fisherman family, Grundsund, Sweden; Swedish National Heritage Board; 'A Fisherman At Home' by P.H. Emerson. National Media Museum (U.K.)

Old photo of young woman holding baseball bat in batting position. Her hair is up, and she's wearing a long light-colored textured-knit sweaterOld photo of young man in ball cap and high-collared jersey sweater. The letters N and Y are knit into the sweaterMaggie Jones, at left, was playing baseball in Cleveland in 1911 - a detailed texture is visible in her sweater in the full image. Russ Ford, at right, played for the New York Yankees in 1911. His team sweater has the letters "N" and "Y" knit right in.
Maggie Jones of Cleveland, LoC.; Russ Ford, New York, AL, LoC.

I thought the following images were interesting comparisons of activities of kids of similar ages. The children at left are in school in Virginia in 1958; the children at right are working in Oregon - time unspecified, but (I'm guessing) probably in the 1910s-1930s. And all in interesting sweaters!
Photo of 1950s schoolchildren with filmstrip projector. Boy wearing patterned sweater, girl wearing plain cardiganTwo children with waist-high basket full of hops, in field. both are wearing textured cardigan sweaters, and hats.
Navy Hill School, Library of Virginia; Two children with hops basket, Oregon State University Archives.

Woman in plain light-colored cardigan, wearing dark cat's eye glasses, and dancingYoung man in brightly patterned sweater (light and dark colors, photo is black and white), eating something.Some folks' sweaters are an expression of personal style. The woman at left was photographed dancing in 1976. The man at right was photographed on a picnic at an unspecified time - I'd guess 1940s or 1950s from the car in the larger photo.
2nd Ave + 86 st. by James Jowers, George Eastman House Collection; Cape Verdean Picnic, Nantucket Historical Association.

Lots of folks think there are no recent works in the public domain; color photos can be a bit of a surprise. Here are some full-color photos of sweater-wearers in 1939, 1944, 1973, and 1974!

Early color photo (1939) of small dark-haired girl in blue sweater/shirt, flowered dress, and red cardigan sweaterCropped early color photo, showing a portion of a man's face, left arm, and back. He's wearing a navy and white-and-navy patterned sweater.Small girl wearing brightly colored blue, white, and red zigzag-striped sweaterTwo boys standing in front of a chain link fence. Portions of both of their faces are visible, as well as the puppy one of the boys is holding.
Girl with doll standing by fence, 1939, LoC; C&NWRR, towerman R.W. Mayberry of Elmhurst, Ill., at the Proviso yard, 1944, LoC; Neighborhood Children of the Neptune Road-Lovell Street Area, the Residential Community Closest to Logan Airport, 1973, U.S. Nat'l Archives; Two Youths and a Dog in Paterson, New Jersey, 1974, U.S. Nat'l Archives.

Possibly the complete apotheosis of sweater-ness is apparently 1950s Canadian curling teams.
Smiling dark-haired woman wearing dark sweater with light-colored yoke with curling-stone pattern and the word curling knit into itSmiling dark-haired woman wearing glasses and holding a broom, bristles up. She's wearing a light-colored zip cardigan with dark curling stone picture knit on the left chest.I have immense respect for these women, whose (probably hand-made) sweaters feature curling stone intarsia (knit patterns/pictures.)
Curling Women's Champs, March 3, 1954, Galt Museum & Archives; Women's Curling Champs, February 29, 1956, Galt Museum & Archives.

Several entire curling teams of the era rocked amazingly awesome sweaters. Check 'em out: black and white photo cropped to show just the midsections of four very brightly patterned sweaters black and white photo cropped to show just the midsections of four very brightly patterned sweaters black and white photo cropped to show just the midsections of four very brightly patterned sweaters Elks Curling Champs, March 17, 1957, Women's Curling Alberta Champs, January 26, 1955, Women's Curling Bonspiel Champs, March 2, 1955. All from Galt Museum & Archives.

I just don't think we could top that. Must be done!

"Joys of the Public Domain" is a recurring feature on this blog, celebrating works in the public domain that I have found and enjoyed. I hope that featuring them here will help expand folks' ideas about the works in which we all share ownership!


Clearing Tracks - Rail Snow Plows (JoPD/CC)

(I have been sharing "Joys of the Public Domain" and "Treasures of the Creative Commons" on my Twitter feed for a while. They're just things (mostly pictures) that I've stumbled across and enjoyed. Expect more random collections like this in the future!)

My office window looks out over the Mississippi River bluffs; today the view is obscured by a gentle-but-blinding (5-7" expected accumulation) snowfall. Road crews across the state and the Upper Midwest are still at work digging out from a bigger storm 10 days ago, so I had snowplows on my mind as I headed to The Commons on Flickr this morning.

Since many public domain images are fairly old, the niftiest plows I found were those used to clear railway lines. Check these out:

Black & white photo of large rail plow, covered with snow, attached to two engines. Sitting on apparently-clear tracks at Warner, Alberta, Canada - 1909
Snow Plow and Alberta Railway And Irrigation Company Engines 22 And 25 At Warner, Alberta. 1909. From the Galt Museum and Archive's Collection.

Black & white photo of large rail plow at station, some snow still stuck on the blade. A person stands atop the plow. O&W line, 1880s.
O&W Snow Plow #3, circa 1880. From the Cornell University Library Collection.
(O&W apparently refers to the New York, Ontario & Western Railway.)

And most spectacularly:
Black & white photo, head-on view of rail plow charging a five-foot drift - the plow is invisible below the drift, and obscured by fountains of snow it is throwing upwards. Spectators are watching from behind a fence.
"Effect of three engines & snow plough charging a five feet drift of snow at Altnabreac, Caithness." By James Johnston. 1895. Collection of the National Archives, UK.

After exploring the public domain images for a bit, I got curious to see if the technologies have changed over time. In some ways, not so much...

The Mighty Plows - modern configurable wedge or slanted rail plows
The Mighty Plows. CC by Orin Zebest.

But in other ways...
World's Heaviest Snowplow - side-angle view of enormous aluminum-colored train engine that carries a set of huge fan-like blades in front
World's Heaviest Snowplow. CC by-nd Chuck "Caveman" Coker.

Here's another angle on one of these "rotary plow" things!
Snow eater train - head-on view of the fan-like blades of a rotary plow in a train museum
Snow eater train. CC by-sa Nelson Minar.

So much to be learned from and shared in the public domain and the Creative Commons. I'm very thankful for both!
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About this Archive

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

news is the previous category.

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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