Author Archives: Krista Cox

Impression Products v. Lexmark International

On May 30, 2017, the Supreme Court of the United States issued its opinion in Impression Products v. Lexmark International, a case involving patent exhaustion. By an 7-1 margin, the Court found that a patent holder cannot enforce contractual restrictions on downstream sales through a patent infringement case and that international exhaustion applies to patents, just as the Court confirmed international exhaustion to apply to copyright in Kirtsaeng v. Wiley.

Lexmark essentially tried to restrict the refill of its cartridges by third parties by selling cartridges that restricted further use or resale. Lexmark then tried to enforce these restrictions through patent infringement cases against the downstream purchasers/third party resellers. The Court ultimately found that while Lexmark could potentially bring a breach of contract case against the initial purchasers for violating these restrictions, it could not bring a patent infringement suit to assert these claims. Relying on long-standing precedent, the majority opinion (authored by Chief Justice Roberts) notes “even when a patentee sells an item under an express restriction, the patentee does not retain patent rights in that product.”

Additionally, Lexmark asserted that exhaustion did not apply to cartridges sold abroad. The Court “conclude[s] that a patentee’s decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose or the location of the sale.” The Court notes that the question of the first sale doctrine came up in the context of copyright in Kirtsaeng v. John Wiley & Sons, which ruled that the first sale of a copyrighted product exhausts the rights whether made in the United States or abroad. The majority opinion also points out that while differential pricing may occur, this fact has no bearing on patent exhaustion: “The patentee may not be able to command the same amount for its products abroad as it does in the United States.  But the Patent Act does not guarantee a particular price, much less the price from selling to American consumers.”

One of the more interesting passages in the majority’s opinion is an illustration on the dangers that would occur without exhaustion:

Take a shop that restores and sells used cars. The business works because the shop can rest assured that, so long as those bringing in the cars own them, the shop is free to repair and resell those vehicles. That smooth flow of commerce would sputter if companies that make the thousands of parts that go into a vehicle could keep their patent rights after the first sale.  Those companies might, for instance, restrict resale rights and sue the shop owner for patent infringement. And even if they refrained from imposing such restrictions, the very threat of patent liability would force the shop to invest in efforts to protect itself from hidden lawsuits.  Either way, extending the patent rights beyond the first sale would clog the channels of commerce, with little benefit from the extra control that the patentees retain.  And advances in technology, along with increasingly complex supply chains, magnify the problem.

The use of auto repair as an example of the problems created through overzealous claims of intellectual property protection is compelling given the issues of embedded software in automobiles and anti-circumvention measures. With a growing number of vehicles containing embedded software, some rightholders are claiming that purchasers of these vehicles should not be free to modify, repair or tinker with these items. An article in Wired in 2015 highlighted the fact that John Deere (and other automakers) opposed an exemption to allow circumvention of technological protection measures in order to repair purchased vehicles during the DMCA 10201’s triennial exemption process.

Ultimately, exhaustion of copyright and patent rights serves a critical purpose in ensuring that purchasers can freely repair, re-sell, and lend legitimately purchased items just as they would for goods that are not encumbered by intellectual property rights.

ICYMI: New Advocacy and Public Policy Update

On May 19, 2017, ARL released its latest Advocacy and Public Policy Update. The topics covered in this update include various copyright issues (Register of Copyrights bill, Copyright Office study on moral rights, Copyright Office rulemaking on modernizing copyright recordation, and numerous amicus briefs filed), LSU v. Elsevier, appropriations, access to and preservation of government data, net neutrality, developments on trade agreements, and issues related to immigration and border control.  The full update is available here.

 

ARL Joins Higher Education and Library Groups to Oppose Changes to Net Neutrality Rules

On May 18, 2017, the FCC voted 2-1 to move forward with its notice of proposed rulemaking to roll back net neutrality protections that were set forth in the agency’s 2015 Open Internet Order. The FCC appears to want to reverse course on Title II reclassification, which provided the strong legal basis for the no blocking, no throttling and no paid prioritization rules, and potentially give enforcement oversight to the Federal Trade Commission (FTC) instead. ARL joined higher education and library groups in issuing the following statement:

May 18, 2017

No Changes to Net Neutrality Law Necessary, say Higher Ed and Library Groups

Since the passage of the FCC’s 2015 Open Internet Order, internet users have benefited from strong and enforceable net neutrality policies, which are essential to protecting freedom of speech, educational achievement, and economic growth for all Americans. Today’s vote puts those protections in jeopardy.

Libraries and institutions of higher education are leaders in maximizing the potential of the Internet for research, education, teaching and learning, and the public good.  In the modern era, a free and open internet is essential to our public missions. The current net neutrality rules – no blocking, no throttling, and no paid prioritization, backed by a general conduct standard to ensure net neutrality adapts as the Internet evolves – generated unprecedented public support, and the validity of both the rules and the process that produced them has been affirmed by the DC Circuit Court.

Given all these factors, we believe no changes to the FCC’s 2015 Open Internet Order are necessary.  We urge the Commission to rescind the NPRM approved today and work with all stakeholders to enhance flexibility and innovation within the existing framework. Application of the rules to this point has demonstrated that the Commission can manage the regulatory environment for Internet access without undermining the sound, legal basis for network neutrality.

Should the FCC continue down the path proposed in the NPRM, however, the higher education and library communities would again draw the Commission’s attention to the network neutrality principles for which we have consistently advocated. We believe the Commission can and should frame any efforts to support an open Internet around these principles, and we will work through the rulemaking process to sustain strong network neutrality rules based on them.

We look forward to working with the FCC on ensuring that the Internet remains open.

The organizations endorsing this statement are:

American Association of Community Colleges (AACC)

American Association of State Colleges and Universities (AASCU)

American Council on Education (ACE)

American Library Association (ALA)

Association of American Universities (AAU)

Association of College & Research Libraries (ACRL)

Association of Public and Land-grant Universities (APLU)

Association of Research Libraries (ARL)

Chief Officers of State Library Agencies (COSLA)

Council of Independent Colleges

EDUCAUSE

National Association of College and University Business Officers (NACUBO)

Louisiana State University Files Suit Against Elsevier; Elsevier Has Not Accepted Service

On February 27, 2017, Louisiana State University (LSU) filed a lawsuit against international science publisher Elsevier after the publisher breached its contract and refused to allow LSU’s veterinarian school faculty and students to access Elsevier content licensed by LSU’s Libraries. ARL’s press release is available here.

Background

LSU currently holds a license with Elsevier to cover its entire Baton Rouge campus. LSU’s veterinary school, which is located on main campus of LSU in Baton Rouge, Louisiana, previously held its own license with Elsevier. Upon the expiration of the veterinary school’s license with Elsevier, the veterinary school users continued resources licensed by LSU Libraries. The LSU Libraries’ license (attached as an exhibit to the end of the complaint) unequivocally covers its entire Baton Rouge campus, including the veterinary school.

Despite the fact that LSU Libraries license covers IP ranges specifically covering the veterinary school, Elsevier blocked access to users at the veterinary school. Upon discovery, LSU contacted Elsevier on October 11, 2016 to request reactivation of the IP ranges for the veterinary school. Elsevier unblocked those IP addresses, but then in January again blocked access for users at the veterinary school. Elsevier refused to respond to LSU’s written requests to reactivate these IP addresses.

Additionally, when LSU Libraries made a request to license 19 additional veterinary titles from Elsevier, the publisher initially responded that it would cost an additional $35,000 to add these titles. LSU Libraries accepted this price and requested an invoice only to then find Elsevier refusing to sell these titles to them.

Although LSU requested Elsevier to restore access to the veterinary school, Elsevier failed to respond until nearly six weeks later and only after LSU filed a lawsuit for breach of contract. Ultimately, Elsevier has refused to restore access for those in the veterinary school. Additionally, Elsevier has not accepted service of the lawsuit, which was filed in the Nineteenth Judicial District Court, Parish of East Baton Rouge, Louisiana, and for which service of process was attempted at Elsevier’s New York headquarters. As a result, LSU is now attempting to effect service of process at Elsevier’s headquarters in Amsterdam through the Hague Service Convention.

On April 22, 2017 Elsevier proposed that LSU “add a minimum of $170,000 of additional 2017 subscriptions to their existing contract” and “increase the price of Freedom Collection by $30,000 for the 2017 subscription period.” This amount represents an incredible increase in cost to LSU, and would not even cover the full 2017 calendar year.

Here’s my breakdown and analysis of what’s happened so far.

Elsevier’s Actions Prevent LSU from Exercising Sound Financial Stewardship of Scarce Public Resources

In essence, in an effort to exercise sound financial stewardship of public resources, LSU has been punished through Elsevier’s refusal to honor its contract. Elsevier’s actions in this case, from its blocking the IP ranges for the veterinary school to its failure to accept service at its New York office of the lawsuit to its outrageous demands that LSU Libraries pay an additional $200,000, demonstrate the publisher’s bad faith.

As a result of this dispute, Elsevier apparently wants LSU to add $170,000 of journals that the university does not need or want, a complete waste of scarce state dollars. Elsevier is holding hostage access to the veterinary school community in an effort to extort more money from a state institution. Keep in mind that LSU is already paying $1.5 million (and rising) to Elsevier.

All LSU is trying to do in the present case is ensure that it is not unnecessarily duplicating subscriptions for its campus and using state resources in a responsible manner. It is disappointing that Elsevier would respond to its own breach of contract by demanding more money from a public institution.

As summarized in LSU’s complaint:

Elsevier is well aware that LSU, like other universities, is heavily reliant upon the various types of research and educational content for which Elsevier enjoys monopolistic market powers and Elsevier is unfairly abusing its leverage to coerce LSU into paying additional and unnecessary subscription fees for research and educational content that LSU has already contracted for.

Elsevier Refuses to Honor The Plain Language of Its Existing Contract with LSU

The most obvious harm in the case comes from Elsevier’s refusal to honor its contract with LSU by blocking access to the veterinary school. Although the faculty, staff and students of the veterinary school had previously been able to access content licensed by LSU Libraries and such access was expressly covered under the IP ranges contracted for, Elsevier has denied access to these users.

Once again, Elsevier is using its monopoly power—LSU can only get the titles owned by Elsevier from Elsevier itself—to try to extract more money out of LSU. Elsevier is hoping that by refusing to honor its contract, it will be able to pressure LSU to renegotiate its current contract and pay even more money—more than the $1.5 million dollars the university pays each year to the publisher.

Elsevier Reneges on Its Contract with LSU for Additional Titles

While the major portion of the complaint involves Elsevier’s blocking of the IP ranges for the veterinary school and thus breaching its existing contract with LSU, the publisher also refused to honor the negotiations with respect to nineteen additional titles. When LSU inquired about these additional titles, Elsevier provided a quote. LSU confirmed acceptance of these terms and requested an invoice. Elsevier then replied “Thank you for these new title additions.” However, Elsevier subsequently refused to honor this agreement.

Every first-year law student takes contract law and the very first lesson is that an offer plus acceptance of that offer (plus consideration, such as money, to differentiate it from a gift) results in a valid contract. Here, Elsevier made an offer to add the requested titles in exchange for payment by LSU of $35,000. LSU expressly accepted. Elsevier even acknowledged receipt of acceptance. However, like its current contract with LSU, Elsevier has breached its own contract by now reneging and refusing to invoice the institution and provide the promised content.

Offer + acceptance (and consideration) = valid contract. Except, apparently, when you’re Elsevier. 

Elsevier’s Fails to Accept Service of the Lawsuit

Perhaps the craziest part of the entire story—though there are many deeply troubling actions by Elsevier—is the fact that Elsevier has not accepted service of the lawsuit. More than two months after the lawsuit was filed (during which time, LSU and its faculty, staff and students continue to be harmed by Elsevier’s refusal to honor its contract), Elsevier appears to be playing games with this public university. While it would be understandable for Elsevier to try to aggressively defend itself against the claims (even in a case where the facts clearly favor LSU), here Elsevier is essentially pretending that the lawsuit doesn’t even exist. This is not a standard delay tactic in litigation.

Elsevier does substantial business in the United States. The publisher charges millions of dollars each year to hundreds of universities and institutions in the United States. It has fourteen corporate headquarters and branch offices located in the United States. It is a member of the Association of American Publishers. According to OpenSecrets, last year Elsevier (under RELX) spent $1.72 million dollars lobbying in the United States (and lest you think RELX’s lobbying dollars are going to be substantially different from Elsevier, the 2014 filings show that while the company was still going by the name Reed Elsevier it paid $1.6 million dollars to its lobbyists). It has lobbied substantially on issues related to copyright and against open access. The publisher’s global litigation counsel was a witness in the House of Representatives Judiciary Committee copyright review hearing on Section 512. Elsevier has taken advantage of its rights to sue as a plaintiff in United States courts on multiple occasions in cases involving everything from breach of contract to copyright infringement to exemptions from sunshine laws. Clearly, Elsevier enjoys the benefits of its business in the United States and invests substantial resources into shaping the laws in this country.

While Elsevier enjoys all the advantages of doing business in the United States when it benefits the corporation, it conveniently decides that it’s a Dutch company when it is being sued. That LSU is being forced to chase Elsevier down in Amsterdam through the Hague Service Convention is an incredible outcome of the dispute.

Concluding Thoughts

Elsevier’s actions in the present case, including its refusal to acknowledge or respond to LSU’s requests for the publisher to abide by the terms of its own contract until after a lawsuit was filed, demonstrate its corporate culture. LSU’s complaint perfectly sums up Elsevier’s abuse of its monopoly power:

Elsevier’s total disregard for LSU’s serious concerns and amicable efforts to resolve this dispute reflects the monopolistic market power and arrogance that comes with Elsevier’s posturing as a “world-leading provider of information solutions that enhance the performance of science, health and technology professionals.”

Through its continuing breach of its contractual obligations to LSU under the Agreement, Elsevier has caused, and continues to cause, irreparable injury and significant damages to LSU and has significantly damaged, impaired and restrained the university’s ability to conduct research and educate its students, thereby improperly restricting and interfering with LSU’s primary purpose and constitutional mandate under the Louisiana Constitution.

In a time where states are facing enormous budget deficits public universities must ensure financial responsibility of scarce public resources. LSU is attempting to exercise sound judgment and stewardship of limited resources, but its only reward has been Elsevier blocking access to faculty, researchers and students at the university.

LCA Urges Senate to Reject Bill to Make Register of Copyrights a Presidential Appointee

On April 26, 2017, the U.S. House of Representatives voted to pass H.R. 1695, the Register of Copyrights Selection and Accountability Act of 2017, a bill to make the Register of Copyrights a presidential appointee rather than an appointee of the Librarian of Congress.  The House disappointingly voted in favor of the bill by a 378-48 margin. The bill also included two amendments including one that specifies that nothing in the bill will impact mandatory deposit.

The Library Copyright Alliance issued the following statement:

The Library Copyright Alliance is disappointed that the House today passed H.R. 1695, the Register of Copyrights Selection and Accountability Act. We continue to believe that the bill will delay critically needed modernization of the Copyright Office and make the Register of Copyrights less accountable to Congress and the public, contrary to the stated intent of the bill made plain in its title. We look forward to working with the Senate on this legislation.

 

The Future of Net Neutrality?

The net neutrality saga continues to unfold and it appears that threats against an open Internet may be at even greater risk today, given new leadership at the FCC and an Administration that has been extremely critical of net neutrality.

Net neutrality is essential for libraries and higher education to carry out our missions and ensure protection of freedom of expression, educational achievement, research and economic growth.  ARL celebrated the FCC’s 2015 Open Internet Order and the D.C. Circuit’s ruling upholding the Order. It remains under threat, however, because of ongoing litigation, efforts by members of Congress to roll back regulations, and statements by FCC Chairman Pai vowing to take a “weed whacker” to the net neutrality rules.

On March 30, 2017, higher education and library organizations reaffirmed their commitment to net neutrality and the Federal Communication Commission’s  (FCC) 2015 Open Internet Order.  This coalition sent a letter to Federal Communications Commission (FCC) Chairman Ajit Pai and Congressional leadership articulating the principles that should form the basis of any review of the Open Internet Order. These principles call on the FCC to ensure that no blocking, degradation or paid prioritization occurs.  Absent protections to ensure that the Internet remains open, the letter notes that Internet service providers have incentives to block or degrade traffic and create “fast lanes” and “slow lanes.”

While net neutrality remains critical to freedom of expression and education, it faces serious obstacles going forward. Chairman Pai not only voted against the 2015 Open Internet Order, but has been taking private meetings with large broadband providers where has has reportedly been promising to overturn net neutrality protections. While Pai has not laid out an extensive plan to address net neutrality, reports suggest that the Chairman wants to replace the protections under the Open Internet Order with “voluntary commitments” from broadband Internet service providers. Theoretically, while these “voluntary commitments” to not block or throttle traffic might be enforceable at the FTC, some note that such oversight could be extremely difficult. Moving enforcement to the FTC means that complaints can only be brought after a harm occurs, which is likely to favor the broadband providers. Additionally, because they are only “voluntary commitments,” some providers may choose not to adopt any open internet principles absent regulations to protect net neutrality. In fact, as the D.C. Circuit noted in its 2014 opinion overturning the 2010 Open Internet Order (prior to the FCC’s reclassification under Title II), broadband providers certainly have an incentive to abuse their power and discriminate or block certain types of Internet traffic:

Because all end users generally access the Internet through a single broadband provider, that provider functions as a ‘terminating monopolist,’ with power to act as a ‘gatekeeper’ with respect to edge providers that might seek to reach its end-user subscribers … this ability to act as a ‘gatekeeper’ distinguishes broadband providers from other participants in the Internet marketplace—including prominent and potentially powerful edge providers such as Google and Apple—who have no similar ‘control [over] access to the Internet

Chairman Pai is expected to release his plan on net neutrality this week, in advance of the FCC’s May agenda. However, to reverse the 2015 decision to reclassify broadband Internet service under Title II, the FCC would likely need to demonstrate substantial changes in the environment for a court to uphold such a reversal. Absent such a showing of substantial changes, a decision by the FCC to suddenly reverse course merely because of a change in leadership would likely be seen as arbitrary and capricious. ARL will closely track Chairman Pai’s plan and any FCC movement on this issue.

Meanwhile, some members of Congress continue to express an interest in rolling back the protections of the FCC’s Open Internet Order. While it is possible that some type of compromise bill could emerge in Congress to provide at least some protections for net neutrality, ultimately such a bill would weaken the rules under the 2015 Open Internet Order.

Court Cases on Trump’s Travel Ban

Over the last 24 hours, several courts have issued opinions regarding President Trump’s recent executive orders banning entry of certain nationals and refugees into the United States. While recent court opinions have imposed temporary restraining orders, how the executive orders fare on appeal (whether they are considered legitimate exercises of executive power or whether they violate the Establishment Clause) may hinge on whether Trump’s and Administration officials’ statements regarding the travel ban may be considered in determining the purpose of the executive orders.

Background

Following President Trump’s two executive orders, numerous lawsuits were filed across the nation. After Executive Order 13,769 was issued on January 27, 2017, district court Judge Robart issued a temporary restraining order against enforcement of certain portions of the Executive Order in Washington v. Trump. The Ninth Circuit denied the Government’s motion for a stay of the temporary restraining order in that case.

The Trump Administration then issued another Executive Order, No. 13,780 on March 6, 2017, designed to replace the prior Order. This Executive Order made some changes, suspending entry for nationals of six countries (Iran, Libya, Somalia, Sudan, Syria and Yemen) for 90 days, but did not apply to lawful permanent residents, holders of valid visas, dual nationals or certain other categories of people. It also included a “waiver provision” allowing foreign nationals of these countries to seek entry on a case-by-case basis. Another section of the Executive Order suspends refugee admissions for 120 days and also has a waiver provision to be determined on a case-by-case basis. Once again, numerous lawsuits were filed nationwide.

District Court Decisions

In the last day, two federal judges have blocked portions of this new Executive Order from enforcement. The first decision came yesterday evening on March 15, 2017, from district court Judge Watson in Hawaii v. Trump. Judge Watson’s order enjoins enforcement of the sections discussed above “in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas . . . pending further orders from this Court.” The Order therefore applies worldwide. In issuing this order, Judge Watson found that, based on numerous statements by Trump and Administration officials, “a reasonable, objective observer . . . would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose” and would result in irreparable harm. Notably, Judge Watson relied on precedent set forth by the Ninth Circuit’s opinion in Washington v. Trump that courts could look beyond the plain language of the law for evidence of its purpose. Judge Watson does, however, caution that prior statements by Trump or Administration officials do not “forever taint any effort by it to address the security concerns of the nation” and “context may change during the course of litigation.” This morning, March 16, 2017, a Maryland district court Judge Chuang also issued a restraining order in International Refugee Assistance Project v. Trump. Judge Chuang also pointed to the history of public statements as evidence that the Executive Order represented a “Muslim ban.” Chuang’s order will apply only to the portion of the Executive Order suspending of nationals from six countries and does not sweep as broadly.

Ninth Circuit Dissent from Denial of En Banc Hearing in Washington v. Trump

While the judges in Hawaii and Maryland have blocked enforcement of portions of the new Executive Order, five judges from the Court of Appeals from the Ninth Circuit issued a dissent on March 15, 2017 from the Ninth Circuit’s denial of reconsideration of Washington v. Trump by an en banc panel. As noted above, the Ninth Circuit previously upheld a district court’s temporary restraining order. Following the issuance of the new Executive Order, the U.S. government filed an unopposed motion to dismiss its underlying appeal, which was granted. Despite the mootness of the appeal, one judge requested rehearing by the full court, but did not garner the votes for rehearing. These five judges, all Republican appointees, signed a dissent stating that the original Executive Order “was well within the powers of the presidency” and that the Ninth Circuit’s opinion was a “fundamental error.” These five judges argued that “Even if we have questions about the basis for the President’s ultimate findings—whether it was a ‘Muslim ban’ or something else—we do not get to peek behind the curtain. So long as there is one ‘facially legitimate and bona fide’ reason for the President’s actions, our inquiry is at an end.” The dissent also argues that the original Ninth Circuit’s panel opinion “stands contrary to well-established separation-of-powers principles.” Ultimately, the Ninth Circuit will likely have another opportunity to rehear these issues in the context of Hawaii v. Trump.

Additional Information

There are a number of ongoing suits against the travel ban. A roundup of documents for each of the cases is available here.

Fair Use/Fair Dealing Week 2017 Highlights Balance in Copyright System

*Cross-posted from ARL news*

The fourth annual Fair Use/Fair Dealing Week took place February 20–24, 2017, growing to 140 organizations—as well as numerous individuals—celebrating the important and flexible doctrines of fair use and fair dealing. This year’s event was organized by the Association of Research Libraries (ARL) and participants included universities, libraries, library associations, and many other organizations, such as Authors Alliance, Creative Commons, the Electronic Frontier Foundation, Public Knowledge, the R Street Institute, and Re:Create. Forty-five ARL member institutions contributed a wide range of resources this year. Fair Use/Fair Dealing Week was observed worldwide, with participants in such countries as Australia, Canada, Colombia, Israel, Korea, the Netherlands, New Zealand, and the United States.

Throughout the week, 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/Fair Dealing week provides a time to promote and discuss the opportunities presented, share successful stories, and explain these doctrines.

 Each day, new blog posts and other resources were produced and shared and institutions hosted a variety of live events, such as panel discussions, film screenings, button- and card-making stations, and more. Daily roundups and additional resources are available on the Fair Use/Fair Dealing Week website. There were over 100 news and blog posts, 13 videos, 3 infographics, and 2 podcasts shared over the week. Below are some highlights.

Fair Use/Fair Dealing Week 2018 will take place February 26–March 2. Plan to participate!

Resources

The Association of Research Libraries released the infographic, “Fair Use Myths and Facts.”

The University of Waterloo adapted ARL’s infographic for Canada to create, “Fair Dealing Myths and Facts.”

Kyle Courtney, Jackie Roche, and Sarah Searle of Harvard University published the comic book, “Fair Use of Unpublished Works.”

Video/Audio

Three ARL libraries created videos celebrating fair use, including Harvard University, Duke University, and the University of Virginia. Additionally, Brigham Young University created a video encouraging visits to the university’s Copyright Licensing Office to learn more about fair use.

The Association of College and Research Libraries has posted a video of its live webcast featuring Lillian Rigling and Will Cross of NCSU Libraries explaining “Using Fair Use to Preserve and Share Disappearing Government Information: A Guide for Rogue Librarians.”

Public Knowledge created a fun, mash-up, parody video, “Let Them Go: A Copyright Policy Song” with an accompanying blog post.

The Center for Media & Social Impact created this “Fair Use Video Code: Documentary Filmmakers’ Statement of Best Practices.”

Re:Create released the fourth episode of its Copy This podcast, this one featuring Corynne McSherry of the Electronic Frontier Foundation on “Fair Use: You Use It More Than You Realize.”

News/Blog Posts

The Canadian Association of Research Libraries (CARL) released a statement supporting Fair Use/Fair Dealing Week 2017.

Jim Neal, president-elect of the American Library Association and university librarian emeritus at Columbia University, wrote the editorial “Balance is Everything,” which was published in The Hill.

Harvard posted new blog posts each day of the week, as did the Center for Media & Social Impact. ARL Policy Notes, Authors Alliance, Dalhousie University, Duke University, Electronic Frontier Foundation, and Penn State University were among other organizations that also posted several times.

Michael Geist of the University of Ottawa covered fair dealing extensively in his post “The Copyright Lobby’s IIPA Report: Fake News about the State of Canadian Copyright.”

Ann Ludbrook of Ryerson University explained the importance of celebrating Fair Dealing Week in the context of the Canadian Copyright Review 2017.

Roundup from Day 5 of Fair Use/Fair Dealing Week 2017

*Cross-posted from Fair Use Week*

Check out all the great posts from Day 5 of Fair Use/Fair Dealing Week 2017! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Videos

Australian Digital Alliance, Video of the Livestream of the ADA Forum 2017: Morning Session

Australian Digital Alliance, Video of the Livestream of the ADA Forum 2017: Afternoon Session

Duke University Libraries,Fair Use Week 2017 at Duke

Open Media,Brett Gaylor talks copyright and remixed works with OpenMedia

Podcasts

PK in the Know Podcast,Charles Duan on Blurred Lines and Patterns in Music

Resources

Kyle K. Courtney, Jackie Roche and Sarah W. Searle, Harvard Library Office of Scholarly Communication, Comic Book: Fair Use of Unpublished Works

Blog Posts

Pankhuri Agarwal on Spicy IP,Yet Another Victory for Educational Access as Canada’s Federal Court of Appeal Upholds Copyright Board’s Fair Dealing Analysis

American Library Association Washington Office on Library Advocates,Copyright, Exceptions and Fair Use: Crash Course Intellectual Property” (includes video)

Patricia Aufderheide on CMSi blog,Fair Use Myths Debunked in Australia

Sara R. Benson on Copyright at Harvard Library,Making ‘Non-Consumptive Use’ Part of Your Fair Use Vocabulary

Janita Burgess on Organization for Transformative Works,Fan Creation & Copyright Survey: Preliminary Results

Brandon Butler on Perspectives from HathiTrust,Operationalizing ‘Non-Consumptive’ Fair Use to Revolutionize Human Research

Kyle K. Courtney on ARL Policy Notes,Fair Use Fights Fascism: First Amendment Thoughts During Fair Use Week

Zan Gillies on CMSi blog,Lyn Goldfarb Talks Fair Use in ‘Bridging the Divide

Elliot Harmon on Electronic Frontier Foundation, “Fair Use: Journalism Can’t Succeed Without It

David Hansen on Scholarly Communications @ Duke,Fair use is for students, and artists, and researchers, and . . .

Brandy Karl on Copyright Portal at Penn State, Fair Use Reading List #WeAreFairUse

Marlo MacKay on The Libvine,Fair Dealing and Students

Meera Nair on Fair Duty,Six Factors if Necessary

New Media Rights,#FairUseWeek2017 – Fair use is copyright law’s safety valve for free speech

Re:Create,Lim, Gwyn: Fan Vidders” (includes videos)

Carrie Russell,Fair Use Poem

Kerry Sheehan on Electronic Frontier Foundation,Fair Use as Consumer Protection

Kit Walsh on Electronic Frontier Foundation,Copyright Law Versus Internet Culture

Fair Use Fights Fascism: First Amendment Thoughts During 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.

*This is a guest blog post by Kyle K. Courtney, Copyright Advisor at Harvard University, working out of the Office for Scholarly Communication.*

This year, I think, we should embrace and celebrate Fair Use Week more than ever. With our tumultuous political climate and daily shifts in the news cycle – this year I have thought a lot about fair use and its ties to our First Amendment rights.

As we know, the First Amendment has a great ideal: it protects political speech, promotes democratic culture, enhances participation in government, enables self-expression, and, hopefully, enhances the search for truth.

And, as our community is also well aware, copyright law can restrict uses. This is the nature of the law. Yes, we do grant a limited economic monopoly to the creator for a period of time. And even though U.S. law typically frowns upon monopolies (see the Shreman Act), that limited economic monopoly has an eventual benefit for that bargain with the public – eventually the rights will expire, and the public may use the materials freely.

However, through infringement suits, cease and desist letters, and other actions, a rightsholder does have the ability to stop certain uses during that long monopoly – uses such as printing, performing, or otherwise disseminating copyrighted works prematurely, before the expiration of rights into the public domain.

However, it is my belief, and others’ as well, that the fair use doctrine is intended to preserve, without infringement, the values enshrined in the First Amendment.

The fair use doctrine has been called an “internal safety valve” of copyrights’ potential overreach.

Fair use provides a narrow exception for certain types of limited uses. I use the safety valve analogy, as many others also teach, because fair use ostensibly guards against any chilling effect that would inhibit public speech. This prevents the type of “total control” if copyright holders were granted unlimited freedom to control all uses of their creative works.

Supreme Court Justice Stephen Breyer has written:

The First Amendment [must not be read] in isolation, but as seeking to maintain a system of free expression designed to further a basic constitutional purpose: creating and maintaining democratic decision-making institutions. (Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution, p. 39)

Fair use is a critical part of that purpose. Fair use’s preamble states that certain uses of copyrighted material will not be infringement, including such free speech tools such as news reporting, commentary, criticism, research, and scholarship. These tools are then harnessed by works such as journalism, filmmaking, songwriting, and scholarly publications of all kinds – works that in certain circumstances, absolutely need to use portions of the original works, fairly, to make their point.

For those like myself, that are students of history, the First Amendment’s language, “Congress shall make no law abridging the freedom of speech or of the press,” was part of the Bill of Rights which was specifically added to supplement the Constitution. The Bill of Rights was added to ease the fears of the anti-Federalists, who were concerned that the Constitution lacked the language and strengths to prevent our new government from turning into a tyranny. A tyranny we had just defied by winning the Revolutionary War.

So, from its anti-Federalist origins in the founding of this country, to the many Supreme Court decisions, and the greater public understanding, the First Amendment has always had direct correlation with the fundamental belief that open, informed discussion of current events helps create and maintain our democratic decision-making institutions.

In a federal case from 1986, Maxtone-Graham v. Burtchaell, the court stated about the fair use doctrine:

From the earliest days of the doctrine, courts have recognized that when a second author uses another’s protected expression in a creative and inventive way, the result may be the advancement of learning rather than the exploitation of the first writer. (Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1259 (2d Cir. 1986), emphasis added)

Furthermore, Democracy itself could be challenged if copyright owners could set massive financial and legal barriers so high that the public at large would be unable to access and use materials in a fair and open manner.

There is a strong public interest in allowing these fair uses. What if the author has a need to directly use copyrighted materials? Paraphrasing and summarizing could be insufficient to make the point. Or, more importantly, what if seeking permission would result in censorship? And there are plenty of situations when there is simply no reasonable alternative to obtain consent. In all these scenarios, we understand why fair use must prevail.

Let us take a moment to understand during this Fair Use Week, and every day really, that the fair use doctrine gives us great abilities: we can make fair uses of copyrighted materials to challenge “alternative facts,” to examine and re-use photographs, to post-and re-post videos, speeches, and other media, and to simply quote directly from sources – for the purposes of challenging those sources with our own commentary, criticisms, news reporting, and analyses.

That’s’ how you fight fascism and tyranny.

Fair use provides us with the ability to use, re-use, comment, report, and criticize and maintain our dogged pursuit of the truth. Open, informed discussion is how we maintain our democratic decision-making institutions, and fair use is a large part of that equation.

If you are celebrating Fair Use Week this year, consider yourself both a fair use advocate and a first amendment supporter!

Happy Fair Use Week!