ARL Joins Broad Coalition Calling for Surveillance Reform

On Wednesday, March 25, 2015, ARL joined a coalition of 47 advocacy groups, technology companies and trade associations in sending a letter to President Obama, Director of National Intelligence James Clapper, Attorney General Eric Holder, Director of National Security Admiral Michael Rogers, and Congressional leadership advocating for significant surveillance reform. Key portions of the PATRIOT Act, including Section 215 (known as the “business records” or “library records” provisions), which has been used as the basis for bulk collection of records, are set to sunset on June 1, 2015.

While these groups hold differing opinions on the best and most appropriate reforms, all came together in agreement that reform must include: 1) Ending bulk collection under Section 215 provision, as well as under Section 214, the provision governing pen registers and trap and trace deices; and 2) Transparency and accountability measures for government and company reporting as well as declassifications of Foreign Intelligence Surveillance Act (FISA) court decisions.

These elements are minimum components to a surveillance reform package. The letter concludes, “It has been nearly two years since the first news stories revealed the scope of the United States’ surveillance and bulk collection activities. Now is the time to take on meaningful legislative privacy, transparency, and accountability.”

Given the quickly approaching June 1 deadline, Congress must move swiftly to pass surveillance reform.   Last November, the U.S. Senate failed to advance the USA FREEDOM Act, falling two votes shy of the necessary 60 votes for cloture, which would have provided meaningful reform to current NSA practices. The Senate version of the USA FREEDOM Act, introduced by Senator Leahy (D-VT) would have ended the current practice of bulk collection of phone records, would have made meaningful reforms to the FISA Court, and included enhanced transparency. ARL urges Congress to act now and pass meaningful reforms, such as those proposed by Senator Leahy’s bill.

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Coalition Opposes Fast Track Authority for Trans-Pacific Partnership Agreement (TPP)

On Monday, March 23, 2015, 20 organizations, including the American Library Association, the Association of College & Research Libraries, and the Association of Research Libraries, sent a letter to Congress opposing “fast-track” authority for the Trans-Pacific Partnership Agreement (TPP) due to the lack of transparency in the negotiations.  The letter urges Congress to ensure that any fast-track authority include significantly improved transparency mechanisms, including calling for a release of the negotiating text.

Although organizations have previously urged the release of the texts as a critical transparency measure, the letter notes:

Unfortunately, more than three years later, this practice has not been adopted in the context of TPP . . . talks. Indeed, the talks have gone even further underground.  Even the already insufficient process of formal stakeholder engagement at the negotiating rounds has not occurred since August of 2013, despite at least eight chief negotiators’ meetings, 16 intersessional meetings, fur ministerial-level meetings and multiple attempts to conclude the talks.  Now the need to release the text is even more urgent.

The letter also notes that

The subject matter now being negotiated extends significantly beyond tariffs and other traditional trade matters. As the United States will be obliged to bring existing and future domestic policies into compliance with the international norms established in the pact, this process would establish policies binding on future U.S. Congresses and state legislatures on numerous non-trade subjects currently under the jurisdiction of these domestic legislative bodies.

Transparency is paramount for democratic participation and process, as noted in the Library Copyright Alliance’s February 5, 2015 letter to Senate Finance Committee Chairman Hatch (R-UT) and Ranking Member Wyden (D-OR).  The letter pointed out the importance of transparency in trade negotiations and opposed fast-track authority in the TPP with respect to the intellectual property chapter, or in the alternative, language that ensures balance in the intellectual property provisions.

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Publishers File Motion to Reopen Record in GSU Electronic Reserves Case; GSU Opposes

On October 17, 2014, the Eleventh Circuit ruled in the Georgia State University e-reserve case, directing the lower court to revisit its fair use analysis and avoid using an arithmetic approach to the four factors (i.e., if three factors favor fair use but one does not, then fair use applies).  While the case was reversed and remanded, the Eleventh Circuit actually rejected many of the arguments advanced by the plaintiff publishers.  In its holding, the court affirmed that fair use is determined on a case-by-case basis, rejected bright-line rules, affirmed that even non-transformative uses may be a fair use, and rejected applicability of the coursepack cases.

The plaintiff publishers subsequently filed a petition for rehearing en banc, which the Eleventh Circuit rejected in January.

On remand to the district court, on February 24, 2015, the publishers filed a motion to reopen the record.  The publishers claim the need for “evidence of GSU’s ongoing conduct (e.g. its use of E-Reserves during the most recent academic term).”  Essentially, the publishers are seeking a new trial with potentially new claims, rather than allowing Judge Evans to simply revisit the analysis used with respect to the existing claims-at-issue.

On March 13, 2015, GSU filed its opposition to the motion to reopen, noting that “The record here was fully developed at trial and is complete, and from it, this Court can” make a fair use determination.  As GSU points out, there is no reason to reopen the record because the Eleventh Circuit remanded the case based on the legal analysis rather than an incomplete factual record.

GSU also points out the burdensome nature of reopening the record:

The process of re-opened discovery that the Plaintiffs propose would be grossly burdensome–requiring Defendants to, among other things, collect substantial electronic and paper records and acquire the sworn statements of yet-undetermined number of faculty and staff.  The Court would then have to use its finite resources to start anew analyzing new individual allegations of infringement–and would (According to Plaintiffs’ plan) have to do so without the benefit of trial testimony on such things as the pedagogical purposes of the alleged uses.

GSU’s opposition goes on to explain that reopening the record would be unfair given that the publishers declined to stay the case while GSU was implementing its new policy on electronic reserves:

Moreover, Plaintiffs’ Motion does not make any claims of prejudice to Plaintiffs.  Nor could Plaintiffs do so.  The Court will recall that Plaintiffs declined Defendants’ offer to stay this case during initial implementation of the Policy.  Having elected to proceed, Plaintiffs should not now be heard to complain of the record they insisted on presenting to this Court in the first place.

GSU points out that the publishers are essentially looking an entirely new trial:

The Eleventh Circuit’s and this Court’s thorough disposition of the legal and factual arguments advanced over years of litigation–including almost a month of trial testimony–simply cannot be a dry run for Plaintiffs’ “second go” at whole new allegations of infringement.

It seems clear from the publishers’ motion to reopen that they intend to aggressively pursue the case.  Given that the publishers were largely defeated the first time the case was heard in the district court and most of their arguments were rejected on appeal, it indeed seems that they want to treat the existing record as a “dry run” and now seek a new trial with a new set of allegations.

 

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New FCC Open Internet Order Incorporates Proposals Made in Filings by Libraries and Higher Education

On Thursday, February 26, 2015 the FCC adopted its Open Internet Order, ensuring that Internet providers cannot create “fast lanes” and “slow lanes” by reclassifying broadband under Title II of the Communications Act while also relying on the FCC’s authority under Section 706 of the Telecommunications Act. Relying on both sources of legal authority strengthens the ability of the FCC to protect net neutrality. As noted, in ARL’s February 26th press release, the fact sheet released by the FCC when it voted in favor of the new Order, indicated that the Commission had incorporated many of the joint principles filed by libraries and higher education organizations.

The FCC has now released the text of its Report and Order which explicitly recognizes the role of libraries and institutions of higher education, including several citations and references to comments ARL filed with other library and higher education associations in July and September of 2014. The FCC’s final order represents improvements over the initial proposed rules. ARL applauds the FCC’s decision to strongly protect the open Internet and its responsiveness to the concerns of libraries and higher education.

In its report, the FCC notes the importance of net neutrality, including for specific communities:

Open Internet rules benefit investors, innovators, and end users by providing more certainty to each regarding broadband providers’ behavior, and helping to ensure the market is conducive to optimal use of the Internet. Open Internet rules are also critical for ensuring that people living and working in rural areas can take advantage of the substantial benefits that the open Internet has to offer. In minority communities where many individuals’ only Internet connection may be through a mobile device, robust open Internet rules help make sure these communities are not negatively impacted by harmful broadband provider conduct. Such rules additionally provide essential safeguards to ensure that the Internet flourishes as a platform for education and research.

The FCC’s new rules provide for bright-line rules that prohibit blocking, throttling and paid prioritization. The Order and Report explains:

105. No-Blocking. First, we adopt a bright-line rule prohibiting broadband providers from blocking lawful content, applications, services, or non-harmful devices. This “no-blocking” principle has long been a cornerstone of the Commission’s policies. While first applied in the Internet context as part of the Commission’s Internet Policy Statement, the no-blocking concept dates back to the Commission’s protection of end users’ rights to attach lawful, non-harmful devices to communications networks.

106. No-Throttling. Second, we adopt a separate bright-line rule prohibiting broadband providers from impairing or degrading lawful Internet traffic on the basis of content, application, service, or use of non-harmful device. This conduct was prohibited under the commentary to the no-blocking rule adopted in the 2010 Open Internet Order. 241 However, to emphasize the importance of this concept we delineate under a separate rule a ban on impairment or degradation, to prevent broadband providers from engaging in behavior other than blocking that negatively impacts consumers’ use of content, applications, services, and devices.

107. No Paid Prioritization. Third, we respond to the deluge of public comment expressing deep concern about paid prioritization. Under the rule we adopt today, the Commission will ban all paid prioritization subject to a narrow waiver process.

The waiver process involves a “rare circumstance” where the “broadband provider can convincingly show that its practice would affirmatively benefit the open Internet.”

The FCC report and order notes the problem of paid prioritization, including that it will “introduce artificial barriers to entry, distort the market, harm competition, harm consumers.” In its discussion of paid prioritization, the FCC cites the comments filed by libraries and higher education in July 2014 which pointed out that “it is likely that those who are able to pay for preferential treatment will pass along their costs to their consumers and/or subscribers. In some cases, libraries and other public institutions may be among these subscribers who would then be forced to pay more for services they may broker on behalf of their patrons.”

Although Chairman Wheeler initially proposed using a “commercially reasonable” standard in assessing the conduct of broadband providers, library and higher education groups expressed concerns that this standard might not adequately protect the open character of the Internet. The final report and order reveals that the FCC has clearly listened to these concerns and instead adopts a standard that prohibits unreasonable interference with an end user’s ability to access lawful content or an edge provider’s ability to make such content available. The FCC states, “Based on the record before us, we are persuaded that adopting a legal standard prohibiting commercially unreasonable practices is not the most effective or appropriate approach for protecting and promoting an open Internet.” Rather than adopting a “commercially reasonable standard,” the FCC

adopt[s] this standard to prohibit practices in the broadband Internet access provider’s network that harm Internet openness, similar to the approach proposed by the Higher Education coalition and the Center for Democracy and Technology. Specifically, we require that:

Any person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not unreasonably interfere with or unreasonably disadvantage (i) end users’ ability to select, access, and use broadband Internet access service or the lawful Internet content, applications, services, or devices of their choice, or (ii) edge providers’ ability to make lawful content, applications, services, or devices available to end users. Reasonable network management shall not be considered a violation of this rule.

The FCC’s order also ensures that libraries and higher education institutions are protected under the net neutrality rules. While the definition of “mass market” remains the same as defined under the 2010 Open Internet Order (“a service marketed and sold on a standardized basis to residential customers, small businesses and other end-user customers such as schools and libraries”), the FCC recognizes the potential ambiguity in the definition. The order continues:

To be clear, ‘mass market’ includes broadband Internet access services purchased with support of the E-rate and Rural Healthcare programs, as well as any broadband Internet access service offered using networks supported by the Connect America Fund (CAF). To the extent that institutions of higher learning purchase mass market services, those institutions would be included within the scope of the schools and libraries portion of our definition.

Additionally, the Chairman’s initial proposal included “the creation of an ombudsperson to act as a watchdog to represent the interests of consumers, start-ups and small businesses.” The comments filed by libraries and higher education asked for these groups to be included in this list of interests. The FCC’s final order does this by allowing complaints by “individuals and organizations,” rather than seeming to limit access to start-ups and small businesses.

As with the FCC’s 2010 Open Internet Order, it is likely that challenges will be brought against the 2015 Order. ARL will continue to monitor these issues and work to ensure that the open character of the Internet is preserved.

 

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Highlights from Fair Use Week 2015

From February 23-28, 64 organizations and institutions participated in Fair Use Week 2015, an annual celebration of the important (and flexible) doctrines of fair use and fair dealing. Participants included universities, libraries, library associations and a number of organizations such as the Electronic Frontier Foundation, Creative Commons, New Media Rights, Public Knowledge and the R Street Institute. These participants celebrated the essential limitations and exceptions to copyright that fair use and fair dealing provide, allowing the use of copyrighted materials without permission from the copyright holder under certain circumstances. While fair use and fair dealing are employed on a daily basis, Fair Use Week provided a time to promote and discuss the opportunities presented, celebrate successful stories and explain these doctrines.

Each day, new blog posts and resource materials were produced. Daily recaps are available for each day of Fair Use Week and additional resources are available on the website. Over the course of the week, more than 90 blog posts, 13 videos, 2 podcasts, a comic book, an infographic, and several other great resources were released. Below are some highlights from the week:

Resources:

ARL released the Fair Use Fundamentals Infographic, explaining what fair use is, why it is important, and who uses fair use. It also provides several examples of cases where courts have upheld fair use. ARL also produced Fair Use: 12 Myths and Realities.

Jonathan Band highlighted just how often fair use is employed on a daily basis through a sample day in the life of a legislative assistant.

Kyle Courtney of Harvard University released a comic book entitled, “The Origin of U.S. Fair Use.”

Public Knowledge hosted a Reddit AMA with cartoonist Nina Paley discussing how art is made and the role of fair use.

Videos:

Professor William Fisher (Harvard Law School) released two lectures from his Copyright X course: Lecture 9.1, Fair Use: The History of Fair Use and Lecture 9.2, Fair Use: Fair Use Today. These are excellent lectures explaining the doctrine.

Several videos were produced during the week. Fred von Lohmann explains how fair use enables technologies used every day. The Media Education Lab posted a fair use music video.

The Association of College and Research Libraries hosted a webinar featuring Kevin Smith of Duke University, “Does Fair Use Really Work?” The archive of the webinar is available here.

American University Washington College of Law’s Program on Information Justice and Intellectual Property hosted an event, “Presenting the Statement of Best Practices in Fair Use of Collections Containing Orphan Works.” The archived video of the event is available here.

Duke University, hit by inclement weather, delayed its event Fair Use of Art & Beyond, but the video of the event (including slides) is now available here.

In Canada, Bobby Glushko (University of Toronto) produced several videos, including one on the “Copyright Pentalogy,” providing an overview on five Canadian Supreme Court cases that clarified copyright law. Christine Jewell (University of Waterloo) has a great explanation on what fair dealing is.

Podcasts:

Two podcasts were released during the week. TechDirt devoted an entire episode to the topic, “Fair Use Protects Culture from Copyright, Not the Other Way Around.” Radio Free Culture released a special episode, “Wishing You A Happy Fair Use Week with Ellen Duranceau.”

Blog Posts:

The Authors Alliance posted three times during the week, including Pamela Samuelson’s “Why is Fair Use Good For Authors?” Samuelson explains the many ways that authors rely on fair use, noting, “Authors and artists are likely to make and benefit from fair uses in every phase of the creative process and long thereafter.”

The Electronic Frontier Foundation stated, “Congress’s Copyright Review Should Strengthen Fair Use—Or At Least Do No Harm,” explaining that Congress could 1) clarify that statutory damages do not apply where a user relies on a fair use defense in good faith, and 2) fix Section 1201 of the Copyright Act to ensure that technological protection measures, or digital locks, cannot be used to take away fair use.

Creative Commons celebrated Fair Use Week with an explanation of how the creative commons license interacts with fair use.

The Organization for Transformative Works highlighted 10 Fair Use Misconceptions.

Mike Masnick of TechDirt issued this “Reminder: Fair Use is a Right—And Not ‘An Exception’ or ‘A Defense.’

Harvard released blog posts each day of the week with expert guest bloggers Kenny Crews (consultant), Kevin Smith (Duke University), Laura Quilter (UMass Amherst), Niva Elkin-Koren (University of Haifa, Israel), and Dr. Matthew Rimmer (ANU College, Australia).

Georgia State University has a short piece explaining the four fair use factors. The Ohio State University explains Fair Use in Digital Storytelling. University of Texas Austin explains Fair Use and the Jazz Appreciation MOOCs.

Numerous universities across Canada joined in by celebrating Fair Dealing Week 2015. The University of Toronto coordinated these efforts and collected blog posts for the week here.

The week wasn’t exclusively celebrated in the U.S. or Canada, either! The University of Haifa in Israel also took part, with a series of blog posts (NB: most of these posts are in Hebrew).

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ARL Joins 47 Civil Society Organizations and Security Experts Opposing Cybersecurity Information Sharing Act of 2015 (CISA)

On March 2, 2015, ARL joined a coalition of civil society organizations, security experts and academics in sending a letter to Senate Select Committee on Intelligence Chairman Richard Burr and Vice Chairman Dianne Feinstein explaining how the Cybersecurity Information Sharing Act of 2015 (CISA) would undermine privacy and civil liberties.  The letter urges the rejection of CISA in its current form.

The letter notes particular concerns with respect to the following:

  • Automatic NSA access to personal information shared with a governmental entity;
  • Inadequate protections prior to sharing;
  • Dangerous authorization for countermeasures; and
  • Overbroad authorization for law enforcement use

The full text of the letter is available here.

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Roundup from Day 5 of Fair Use Week

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines. Cross-posted from Fair Use Week.

Check out all of the great posts from Day 5 of Fair Use Week 2015!  Don’t see yours?  Contact us to get yours added!

Videos:

Resources:

Reddit AMA Transcript: 

Blog Posts:

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Fair Use: 12 Myths and Realities

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Fair use is a critical right and the most important limitation on the rights of the copyright holder. It permits the use of copyrighted material without permission from the rightholder under certain circumstances and has been called the “safety valve” of U.S. copyright law. Fair use is a broad and flexible doctrine that is responsive to change and can accommodate new technologies and developments. The doctrine is relied upon by everyone, including both users of copyrighted content as well as rights holders.

For libraries and higher education, fair use is integral to achieving the mission of preservation; providing access to cultural, historical, local and scientific heritage; supporting and encouraging research, education, literacy and lifelong learning; and providing a venue for community engagement.

While fair use is of critical importance, there are many myths about what fair use is and
how it can be used (such as the misconceptions cited at the March 2014 Orphan Works Roundtable).  In honor of Fair Use Week, here are twelve myths and realities about fair use (PDF document).

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Roundup from Day 4 of Fair Use Week

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines. Cross-posted from Fair Use Week.

Check out all of the great posts from Day 1 of Fair Use Week 2015!  Don’t see yours?  Contact us to get yours added!

Videos:

Podcast:

Blog Posts:

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ARL Applauds Federal Communications Commission Decision to Support Net Neutrality

Cross-posted from ARL News, originally posted on Thursday, February 26, 2015

*Updated March 4, 2015 to include links to statements by ALA and EDUCAUSE*

The US Federal Communications Commission (FCC) voted today, February 26, 2015, in favor of adopting rules to protect and promote the open Internet, also known as net neutrality. With today’s vote passing the 2015 Open Internet Order, the FCC can ensure that Internet providers do not create “fast lanes”—designated for those willing and able to pay a premium—and “slow lanes”—for everyone else—and that the Internet remains open and available to all.

The Association of Research Libraries (ARL) applauds the Open Internet Order, which reclassifies the Internet under Title II of the Communications Act and also relies upon the FCC’s authority under Section 706 of the Telecommunications Act to provide a strong legal basis to protect net neutrality. As both providers and consumers of content and services on the Internet, research libraries and their parent institutions have long relied on the open character of the Internet, including non-discriminatory access.

Deborah Jakubs, president of ARL, said, “Libraries, colleges, and universities have long championed, advanced, and provided critical intellectual freedoms such as education, research, learning, free speech, and innovation. These freedoms rely on net neutrality, and today’s vote at the FCC ensures that network operators cannot act as gatekeepers and place commercial interests above non-commercial expression.”

Ultimately, the FCC’s 2015 Open Internet Order recognizes the fact that the open Internet is increasingly critical to the way information is shared and disseminated today. ARL congratulates the FCC on its decision, which incorporates many of the joint principles filed by library and higher education organizations and will allow the research library community to continue to offer a growing number of distance learning services, online course instruction, and access to extensive digital content, as well as promote new innovations.

*Update: See statements of the American Libraries Association and EDUCAUSE.

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