ARL Celebrates House Passage of Email Privacy Act; Urges Senate to Pass Quickly

*Cross-posted from ARL News*

The Association of Research Libraries (ARL) applauds today’s 419-0 vote in the US House of Representatives passing the Email Privacy Act (H.R. 699), a bill that updates the Electronic Communications Privacy Act (ECPA). Passed in 1986, ECPA has not kept pace with evolving technologies and has led to an absurdity that affords greater protection to hard-copy documents than digital communications.

House passage of the Email Privacy Act today signals an important recognition that Fourth Amendment protections extend to online communications. As libraries and universities move services into the cloud and more communications take place online, ensuring the protection of information long considered to be private—including what individuals are reading or researching—is essential.

“Reform of ECPA is long overdue and today’s vote in the US House of Representatives demonstrates overwhelming support for bringing privacy laws in line with the digital age,” said ARL president Larry Alford. “The Email Privacy Act will restore a reasonable expectation of privacy in online communications, requiring the government to obtain a warrant for content, and is a key step forward in updating a 30-year-old law governing digital privacy. ARL applauds today’s vote and urges the Senate to quickly move forward to pass this bill.”

The Senate version of the bill, the Electronic Communications Privacy Act Amendments Act of 2015 (S. 356), has enjoyed broad, bipartisan support. The Association of Research Libraries strongly encourages the Senate to pass this legislation soon.

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ARL Urges Congress to Pass ECPA Reform

The Electronic Communications Privacy Act (ECPA) is a law from 1986 governing privacy for online communications and has long been in need of reform. Congress has the opportunity to rectify the deficiencies of this law that denies individuals a reasonable expectation of privacy for the content of their online communications.

ECPA was written in an era in which few individuals owned computers, most did not use e-mail, services like Facebook did not exist, and “the cloud” had not yet transformed the way people communicate and work. It reflects a poor understanding of the digital age and has clearly not kept pace with evolving technologies. ECPA allows the government to seize online documents and communications older than 180 days without a warrant, leading to an absurdity that grants greater protection to hard copy documents than to digital communications.

The Email Privacy Act would rectify this absurdity and restore Fourth Amendment protections to the digital world by requiring a warrant for content, just as a warrant would be required for a copy of a document stored in a file cabinet. The bill has overwhelming bipartisan support with 314 cosponsors, a super majority of the House of Representatives. It was passed unanimously by the House Judiciary Committee on April 13, 2016. This support demonstrates a clear recognition that ECPA is outdated and most be reformed to reflect the way people communicate in the digital age.

While the bill as passed by the House Judiciary Committee is not perfect, it is an important step forward and includes the critical warrant for content standard. ARL calls on the House of Representatives to pass the Email Privacy Act and protect privacy in the digital age.

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Supreme Court denies Authors Guild Petition for Certiorari

The Supreme Court of the United States has denied the Authors Guild for petition of certiorari in Authors Guild v. Google.  This decision leaves the Second Circuit’s opinion affirming fair use in the Google Books case intact.  In the Second Circuit’s opinion from October 2015, the court released its unanimous opinion, authored by Judge Leval, affirming that Google’s copying of books and display of snippets in a search index is transformative and a fair use.  Additionally, the Second Circuit found that Google’s provision of digital copies to its partner libraries that submitted the particular work is not an infringement.

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ARL Joins More than 50 Organizations and Companies Supporting Manager’s Substitute on ECPA Reform

On April 13, 2016, ARL joined a coalition of more than 50 civil society organizations, trade associations and companies in writing to support the Manager’s Substitute Amendment to the Email Privacy Act (H.R. 699), a bill to update the Electronic Communications Privacy Act (ECPA), in advance of the bill’s markup.  ECPA, a law passed in 1986, has not kept pace with evolving technology and allows government agencies to access private communications stored in the “cloud” without a warrant.  ARL has long supported reform of this outdated law to ensure that Fourth Amendment protections extend to the digital world.

The Email Privacy Act has enjoyed broad support with 314 co-sponsors.  While the coalition letter supports the Manager’s Substitute, it notes:

The Manager’s Substitute does not achieve all of the reforms we had hoped for. Indeed, it removes key provisions of the proposed bill, such as the section requiring notice from the government to the customer when a warrant is served, which are necessary to protect users. However, it does impose a warrant-for-content rule with limited exceptions. We are particularly pleased that the Manager’s Substitute does not carve out civil agencies from the warrant requirement, which would have expanded government surveillance power and undermined the very purpose of the bill.

Markup of the bill will happen in the House Judiciary Committee today, April 13, 2016 at 10:30 a.m.

The time for ECPA reform is long overdue and while the Manager’s Substitute rolls back some of the positive aspects of the original bill, it still represents a step forward in protecting privacy in the digital age.

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LCA Submits Comments on Section 1201 to the Copyright Office

*This post is written by Caile Morris, ARL Law and Policy Fellow*

The Copyright Office published a notice of inquiry on December 29, 2015, announcing a public study to “assess the operation of section 1201 of title 17, United States Code, including the triennial rulemaking process to adopt exemptions to the prohibition against circumvention of technological measures that control access to copyrighted works.” ARL, along with the American Library Association and the Association of College and Research Libraries, submitted comments and reply comments through the Library Copyright Alliance (LCA). Both the comments and reply comments expanded on section 1201’s fatal flaw: that the language of the statute has the potential to prohibit circumvention of technological protection measures (TPMs) for lawful purposes.

Comments

On March 3, 2016, LCA filed comments on section 1201 in response to the Copyright Office’s notice of inquiry. The core message is that the failing of 1201 is its potential to prohibit not just unlawful infringing activities, but also circumvention for lawful purposes. The comments explore section 1201 prior to enactment, efforts to amend 1201 following enactment, the circuit split that has resulted from the flawed language, and recommendations for how 1201 might be amended.

LCA points out the difficulties in applying 1201, as evidenced by the current circuit split. Critics have noted that 1201 could chill legitimate purposes, such as research into computer security and prevent lawful copying under the fair use doctrine or library exception codified in the Copyright Act, and generally promote anti-competitive effects. As LCA’s comments point out,

These critics’ worst fears about the anti-competitive effect of the statute seemed to be validated when two dominant companies attempted to use section 1201 to threaten competitors in aftermarkets. The [Federal Circuit’s] Chamberlain case involved universal transmitters for garage door openers, while the [Sixth Circuit’s] Lexmark case involved toner cartridges for printers. Fortunately, the judges in these cases interpreted section 1201 in a manner that prevented its anti-competitive use. The Ninth Circuit’s decision in MDY v. Blizzard, however, has challenged this interpretation.

The LCA comments address the triennial rulemaking to adopt temporary exemptions to section 1201(a)(1)’s prohibition on circumvention as “an exercise in legal theatre” because the rulemaking only applies to the prohibition against circumvention of TPMs, but not to the prohibition of the development and distribution of circumvention tools. This, in effect, makes a legally permitted activity difficult to carry out, as the tools necessary to do so are potentially illegal to acquire. Other burdens of the process include high costs in time and money, lack of representation for the average member of the public, the language of the exemptions becoming increasingly convoluted, and having to petition for previously granted exemptions every three years de novo.

LCA’s comments recommend several possible amendments to section 1201 in order to resolve the flaws. For example, LCA endorses the approach of the Unlocking Technology Act of 2013 which attaches liability to circumvention only if infringement is enabled. In the alternative, additional permanent exceptions should be enacted for educational uses, the print disabled, and embedded software. Additionally, the rulemaking should apply not only to section 1201(a)(1), but also to sections 1201(a)(2) and (b). LCA also recommends that final rulemaking authority be shifted to the Assistant Secretary of Communications and Information of the Department of Commerce, because that office has more expertise in evaluating adverse effects of a circumvention prohibition. Furthermore, an opponent of a previously granted exemption should bear the burden of demonstrating why the exemption should not be renewed or modified, which is under the purview of the Copyright Office to change; nothing in the language of section 1201 dictates that review of the triennial rulemakings should be de novo. Finally, the language of the exemptions should be broader and simpler, promoting easier application of the exemptions by the public.

Reply Comments

On April 1, 2016, LCA submitted reply comments primarily responding to the comments of other participants in the notice of inquiry, while reiterating the importance of amending the central flaw of section 1201.

The reply comments identify a “leap of logic” by many content and rights holders industries comments that TPMs would fail but for the legal prohibitions on their circumvention and the creation and distribution of circumvention tools. In particular, the joint comments of the Association of American Publishers, the Motion Picture Association of American, and the Recording Industry Association of America argues that “the protections of Chapter 12 have enabled an enormous variety of flexible, legitimate digital business models to emerge and thrive….” In reply, LCA points out, “if TPMS are so weak that they must be bolstered by legal protections, then why employ TPMs in the first place?” Just because TPMs are important for a business model does not diminish their effectiveness absent legal protection. In addition, there is no real evidence that legal protection of TPMs has contributed to how effective they are. LCA argues that even if there is positive impact from section 1201 as currently written, that the negative impact far outweighs the positive, and revision is justified.

Going forward, the Copyright Office will hold public roundtables to continue its study of section 1201 on May 19 & 20, 2016 in Washington, DC, and May 25 & 26, 2016 in San Francisco, CA. Members of the public are invited to participate, and must submit a request form by April 18, 2016.

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Canada Introduces Legislation Preparing for Accession to the Marrakesh Treaty (Take Two)

In June 2015, proposed amendments to Canada’s Copyright Act were introduced in the House of Commons. These amendments, contained in Bill C-65, the Support for Canadians with Print Disabilities Act, were designed to amend the Copyright Act in order to prepare for implementation of and accession to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (“Marrakesh Treaty”), but was not acted on before the elections.

On March 24, 2016, Bill C-11, An Act to Amend the Copyright Act (access to copyrighted works or other subject-matter for persons with perceptual disabilities) was introduced.  This bill would likewise prepare for implementation and accession.  The Canadian government previously noted that accession to the Marrakesh Treaty would benefit the approximately 1 million blind or visually impaired Canadians.

Under Canada’s Copyright Act, Article 32 provides a limitation to allow for the creation and distribution of accessible format works for those with disabilities. The current provision broadly permits the creation of an accessible work for persons with a perceptual disability. It does not, however, permit the creation of a large print book. The current exception applies only where an accessible format is not commercially available. A non-profit organization may export an accessible format copy, but only where the author of the work is a Canadian citizen or permanent resident or a citizen or permanent resident of the country to which the copy is being sent. Copies may not be exported where the organization knows or has reasonable grounds to know that an accessible format is available in that country within a reasonable time and for a reasonable price. Royalties are owed by the organization making or sending the accessible format copy. The current copyright law also has an exception to the prohibition against circumvention of technological protection measures, but only where it does not “unduly impair” the technological protection measure.

Bill C-61 makes several changes to Article 32. One of the most significant changes is that it removes the prohibition on the creation of large print format as an accessible copy. Large print is an important type of accessible format because many of those who are visually impaired do not require audio formats or may not read Braille. For example, with age, individuals often require larger print. The Marrakesh Treaty broadly defines an “accessible format copy” and the removal of the prohibition against large print in Article 32, complies with the Treaty and will greatly benefit an aging population.

Another key change would allow the sending of accessible formats to other countries, regardless of the nationality of the authors of the works. Bill C-11 allows for the export of accessible format works to both Marrakesh Treaty countries as well as non-Marrakesh Treaty countries. It would allow for injunctions, but not damages, where the accessible format was exported to a country where it was commercially available within a reasonable time, for a reasonable price and located with reasonable effort. Where a work is exported to a Marrakesh Treaty country, the owner of the copyright bears the burden of demonstrating commercial availability. Where a work is exported to a non-Marrakesh Treaty country, the non-profit organization must also show that it had reasonable grounds to believe that it was not commercially available.

In most other areas (with the exception of language on circumvention of technological measures), changes were not made to the existing exception that allows the creation and distribution of accessible format works.

Introduction of Bill C-11 in Canada is a first step in acceding to the Marrakesh Treaty. The Marrakesh Treaty currently has 16 ratifications and will need 4 more for entry into force. In the United States, the Administration sent the Treaty for ratification along with implementing legislation in February of this year.

 

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A Deeper Dive Into the New Georgia State Decision

Last week, on March 31, 2016, the District Court for the Northern District of Georgia released its opinion on remand in the Georgia State University e-reserves case.  The case had been remanded to the district court in October 2014 when the Eleventh Circuit directed the lower court to use a revised methodology for determining whether fair use applied.

While the district court originally found in 2012 that of the 99 instances of claimed infringement, 94 were non-infringing, in the new opinion only 48 cases were evaluated (due to the fact that the original ruling found that either no prima facie case for infringement had been made and the publishers did not appeal this portion of the ruling).  The new opinion’s conclusion finds that 41 of the 48 cases are fair uses, though as others have pointed out (and is discussed in an example below), some of the listed cases of infringement in the summary were found to be fair uses in the text of the opinion.  In fact, in reading the full opinion, it appears that 44 of the 48 cases were found to be fair uses.

Before doing a fair use analysis on each individual claimed infringement, Judge Evans explains here approach.  She notes that she will evaluate each factor individually, then weigh them together.  She also states that the analysis applied “will be specific to the nonprofit educational purpose of teaching and the nontransformative nature of the use (mirror image copying).”   This point is an important one as the analysis would not be the same in the vast majority of other fair use cases where the use would be considered transformative and therefore should not be used as guidance in transformative use cases.

Judge Evans explains her methodology for each factor.

Factor one: “Factor one will favor fair use in all cases.  It will not ‘strongly favor’ fair use.”

Factor two: Evaluated on the standard set by the Eleventh Circuit which requires Judge Evans to consider whether the information nature of the non-fiction books are mixed with opinion and scholarly writing.  Previously, Judge Evans presumed that the use of nonfiction works caused factor two to weigh in favor of fair use and the Eleventh Circuit rejected this presumption.  The Eleventh Circuit’s distinction between purely factual or deriving from the author’s opinions is troubling, but the appellate court acknowledged that it was a relatively unimportant factor.  Ultimately, Judge Evans finds that factor two is generally neutral and even where it weighs against fair use, because of the small weight afforded to this factor fair use may still prevail, mitigating the Eleventh Circuit’s reversal on this point.

Factor three: Factor three “will take into account the effect of the favored nonprofit educational purpose of the use under factor one, plus the impact of market substitution as recognized under factor four, in determining whether the quantity and substantiality (value) of Defendants’ unlicensed copying was excessive. All relevant record evidence will be considered; the factor three outcomes will vary.”  Factor three will no longer be guided by the approach Judge Evans took in 2012, which was rejected by the Eleventh Circuit, in using a 10%/1 chapter rule.

Factor four: Judge Evans looks to whether licenses were available in 2009 and the factor “will initially favor Plaintiffs when digital permissions were available in 2009.”  However, she notes that the Eleventh Circuit held that the Defendants may demonstrate that “demand for excerpts of a particular copyrighted work was so limited that repetitive unpaid copying of excerpts from that work would have been unlikely even if unpaid copying of excerpts was a widespread practice in colleges and universities. In such a case the actions of Defendants in using unpaid excerpts would not have caused substantial damage to the potential market for the copyrighted work to such a degree that Plaintiffs would lose the incentive to publish the work. Defendants may also seek to prove that their actions . . . . did not substantially affect the value of the copyrighted work.”

She then discusses how the factors will be weighted, with factor four being given more weight and factor two given very little weight.  The opinion states, “This Court estimates the initial, approximate respective weights of the four factors as follows: 25% for factor one, 5% for factor two, 30% for factor three, and 40% for factor four.”

Under the new framework, Judge Evans rules that four of the claims were infringing; all four were also found to be infringing the first time she considered the case and therefore it was not particularly surprising that she ruled against fair use for these claims once again.  Three of these claims involved the same text, The Sage Handbook of Qualitative Research (both the second and third editions) and were assigned by the same professor.  In these three claims, the professor requested two, four and seven full chapters be uploaded (with additional requests for excerpts amounting to less than full chapters) be uploaded, respectively.

Ultimately, the case and opinion involves the narrow case of e-reserves and its analysis would not apply to transformative use cases.  Even in the case of e-reserves, it will be difficult to evaluate the fourth factor in the manner Judge Evans going forward because the financial data disclosed as a result of the litigation is not likely to be readily available.

Kevin Smith wisely points out that despite the fact that the opinion may not be widely applicable or easy to apply, there are important takeaways one of which is that libraries should find ways to improve the fair use case:

To my mind, this means that whenever we are faced with an e-reserves request that may not fall easily into fair use, we should look at ways to improve the fair use situation before we decide to license the excerpt.  Can we link to an already licensed version?  Can we shorten the excerpts?  Buying a separate license should be a last resort.

Ultimately, this opinion may have limited value in providing guidance going forward as it applies in a narrow context and had the benefit of data that isn’t readily available.  However, it is still a win for the libraries

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New Decision in Georgia State University E-Reserves Case Released; 41 of 48 Claims of Infringement Found to Be Fair Uses

On March 31, 2016, the District Court for the Northern District of Georgia released its opinion on remand in the Georgia State University e-reserves case, Cambridge University Press v. Becker.  The district court originally determined in 2012 that of the 99 instances of claimed infringement, 94 of the cases were fair use and only 5 were infringing.  The case appeared before the district court again after the Court of Appeals for the Eleventh Circuit reversed and remanded the case in October 2014, directing the trial court to revisit its fair use analysis.  The Eleventh Circuit’s opinion rejected an arithmetic approach to the four fair use factors (that is, the idea that if three of the factors favor fair use, but one disfavors fair use, then fair use will always apply).

On remand, the district court considered 48 infringement claims and revisited the fair use assertions by Georgia State University.  Judge Evans found that of the 48 claims, 41 were non-infringing fair uses.  More analysis of the opinion will be available shortly.

H/T: Kevin Smith

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Four More Marrakesh Treaty Ratifications Needed For Entry Into Force

At last check-in in December, thirteen countries had ratified the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.  Today, that number stands at sixteen, with the recent ratifications of Israel, North Korea and Peru.  AustraliaArgentina, BrazilEl Salvador, India, Mali, MexicoMongolia, Paraguay, Singapore, South Korea, the United Arab Emirates and Uruguay ratified the treaty previously.  The Marrakesh Treaty needs twenty ratifications to enter into force and will, in all likelihood, reach this threshold this year with several countries reportedly close to ratification.

The Marrakesh Treaty sets forth minimum standards for limitations and exceptions to facilitate access to accessible format works.  It would also permit cross-border sharing of these accessible formats, allowing countries to avoid unnecessary duplication of efforts and resources in the creation of these accessible works.  Additionally, the Treaty would facilitate importation of works created in other languages.

Bill C-65 in Canada was introduced in June in preparation for accession to the Marrakesh Treaty, but has not been voted on.  The Obama Administration sent the Marrakesh Treaty to the U.S. Senate in February of this year, though it has not yet been scheduled for a hearing or vote.

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To Kill A Mass Market Paperback and Access to Knowledge

Just weeks after Harper Lee’s death on February 19, 2016, a notice was issued that the mass-market version of the classic novel To Kill A Mockingbird would no longer be authorized for publication.  The mass-market version, used by countless students over the years, was priced at a much more affordable $8.99 than the trade paperback versions’ list price of between $14.99 and $16.99.  Students and schools who want to purchase new copies of the book will be forced to pay the much higher costs of the trade paperback.

This news is just the latest example of the problem of our current, excessively long copyright term.  Although the reason behind this decision has not been made clear, allowing the heirs of an author to control the legacy of a work and restrict access long after the author’s death can lead to unfortunate consequences.

The purpose of copyright is grounded in the U.S. Constitution: “To promote the Progress of Science and useful Arts.”  The benefit of the public good, through the promotion of access to knowledge, is a key measure of the progress of science.  Yet with copyright term extending far beyond the life of the author — life plus seventy years in the United States (notably, a term that extends far beyond international standards) — access to knowledge can be curtailed and restricted even after the author is long gone.  Dissenting in Eldred v. Ashcroft, Justice Breyer noted that the Copyright Term Extension Act which lengthened copyright term in the United States to its current term, the “primary legal effect is to grant the extended term not to authors, but their heirs, estates or corporate successors.  And most importantly, its practical effect is not to promote, but to inhibit, the progress of ‘Science’–by which word the Framers meant learning or knowledge.”

How does the current copyright system incentivize current authors to promote the progress of science or to produce more works?  Breyer questions in his dissent in Eldred:

How will extension help today’s Noah Webster create new works 50 years after his death? Or is that hypothetical Webster supposed to support himself with the extension’s present discounted value, i.e., a few pennies?  Or (to change the metaphor) is the argument that Dumas fils would have written more books had Dumas pere’s Three Musketeers earned more royalties?

Indeed, it is unlikely that Lee wrote To Kill a Mockingbird with copyright term in mind.  In fact, when Lee published her novel in 1960, copyright term was significantly shorter: 28 years with the option to renew for an additional 28 years.  It wasn’t until 16 years later when the 1976 Copyright Act was implemented that the copyright term in the United States was measured against the life of the author, and 1998 when the Copyright Term Extension Act extended the term from life plus 50 to life plus 70 years.

Instead of the copyright on To Kill a Mockingbird expiring this year, as it would have under the copyright law at the time of Lee’s writing and publication of the novel, the rights to the novel will continue for the next 70 years.  Apparently, the first move by Lee’s successors-in-interest is to inhibit access to knowledge by prohibiting the publication of affordable copies of the novel.

 

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