Author Archives: Krista Cox

Fair Use/Fair Dealing Week 2019: Day 1 Roundup

This week is Fair Use/Fair Dealing 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.

Check out all the great posts from Day 1 of Fair Use/Fair Dealing Week 2019! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Resources:

Infographic: How Fair Use Helps in Saving Software

Video:

ALA CopyTalk Webinar, “Fair Use Week Activity Ideas and Sharing

Events:

Fair Use/Fair Dealing Week 2019 events

Fair Dealing Week 2019 events in Canada

Contest: University of Waterloo, Memes are Fair Game

Petitions:

Canadian Alliance of Student Associations Petition: Take action to protect fair dealing in Canada

Blog Posts/News:

Brandon Butler on University of Virginia Library News, “Fair Use Week begins Monday, February 25

Center for Media & Social Impact, “Artistic Innovation, ‘The Clock,’ and Copyright

Chase Ollis on ACRL Insider, “Fair Use/Fair Dealing Week 2019 Is Coming Soon

Christina Muehlberger on University of Toronto Faculty Association, “Fair Dealing Week is (almost) here!

Christine Fruin on ATLA Newsletter “SCOOP: Fair Use/Fair Dealing Week 2019 – Fair Use in Online Education

Esmeralda Fisher on UH Libraries News, “Fair Use Week 2019

Galter Health Sciences Library & Learning Center, Northwestern Medicine “Keeping it Fair: Celebrating Fair Use Week 2019

Georgetown University Libraries, “Celebrate Fair Use Week 2019

Jennifer Zerkee on Radical Access: The SFU Scholarly Publishing Blog, “What do trade agreements have to do with copyright? The Canada-US-Mexico Agreement and fair dealing

Kathryn Vela, “Fair Use Week 2019

Katie Zimmerman, “Celebrate Fair Use Week with the MIT Libraries

Kenneth D. Crews on Copyright at Harvard Library, “Fair Use and the Growth of Creativity: Celebrating a Quarter Century,”

Krista Cox on ARL Policy Notes “Infographic Shows How Fair Use Helps in Saving Software”

Lachlan MacLeod on The Libvine, “Fair Dealing Week 2019—What Is Fair Dealing?

Mark A. McCutcheon on Academicalism, “#FairDealingWorks: Fair Dealing Week 2019

Meera Nair on Fair Duty, “Fair Dealing Week 2019

Micah Zeller on Washington University in St. Louis Libraries, “Fair Use and WashU

National Network of Libraries of Medicine, New England Region, “Fair Use Week

University of Central Florida, “Fair Use/Fair Dealing Week 2019

University of Guelph, “Join us for Fair Dealing Week 2019

University of Lethbridge, “Fair Dealing Week

Yale University Library, “Fair Use Week

Infographic Shows How Fair Use Helps in Saving Software

*Cross-posted from ARL News*

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.

In conjunction with Fair Use/Fair Dealing Week 2019, the Association of Research Libraries (ARL) is releasing an infographic that illustrates how fair use helps people preserve software for teaching, learning, and research.

Fair use is the right to use copyrighted material without permission or payment, under some circumstances. The statute, numerous court decisions, and best practices provide ample guidance about when fair use applies. Fair use is widely used by journalists, researchers, and search engines—and, increasingly, by software preservationists.

The “How Fair Use Helps in Saving Software” infographic is freely available as a PDF to embed on blogs and websites and to print and hand out at events. Share the link, embed the PDF on your site, print copies for your next event, and continue to support and work with your partners on promoting fair use.

This new infographic continues an ARL tradition of releasing an infographic in conjunction with Fair Use/Fair Dealing Week each year since 2015:

Fair Use/Fair Dealing Week is an annual, international celebration coordinated by the Association of Research Libraries to promote the opportunities presented by fair use and fair dealing, highlight successful stories, and explain these doctrines. Fair Use/Fair Dealing Week 2019 is being observed this week, Monday, February 25, through Friday, March 1. You can participate on a single day during the week, multiple days, or the full week—publish a blog post, host an event, share resources. Visit fairuseweek.org to participate or find additional resources.

Oral Arguments in Mozilla v. FCC

On February 1, 2019, the Court of Appeals for the DC Circuit heard oral arguments in Mozilla v. FCC, the case challenging the FCC’s decision to abandon its order protecting net neutrality. In the more than four hour oral arguments, the court explored a variety of challenges and practical concerns, including those related to administrative law, industry actions and public safety. The three-judge panel is comprised of Judge Patricia Millet, Judge Robert Wilkins and Judge Stephen Williams (NB: Williams dissented from the 2016 opinion upholding the FCC’s 2015 Open Internet Order).

The FCC has a long history in the area of net neutrality, including the two most recent rulemakings. In 2014, the FCC issued a notice of proposed rulemaking, in response to the DC Circuit overturning its 2010 net neutrality rules because the court found that those rules amounted to common carriage. As a result of this rulemaking, in 2015 the FCC issued its Open Internet Order, reclassifying broadband under Title II, subjecting broadband to “common carriage” rules and setting forth prohibitions against blocking, throttling and paid prioritization. In 2017, the FCC, under new leadership from Chairman Pai, issued another notice of proposed rulemaking. In December 2017, the FCC voted 3-2 to eliminate the 2015 net neutrality protections. Immediately following this decision, Internet companies, public interest groups, and consumers, as well as state governments and agencies initiated litigation. ARL joined with other library and higher education associations in filing an amicus brief.

Petitioners in the case have relied on several arguments, including that the FCC violated the Administrative Procedure Act, by failing to engage in reasoned decision-making and instead acting in an arbitrary and capricious manner.

One portion of oral arguments centered on the practical consequences the FCC’s 2017 repeal of net neutrality rules has on public safety. As noted in the brief of government petitioners, when Verizon throttled the data plan of a fire station during the Mendocino Complex fire in California, the largest wildfire in state history. The Santa Clara County counsel noted that the FCC is required by to consider public safety, yet failed to address the impacts that rules that do not prohibit blocking and throttling have. Public safety agencies, such as fire departments or public health agencies, could be blocked or throttled from sending emergency messages. While the FCC’s 2017 order would allow for the FTC to engage in post-hoc remedies, these would be insufficient in addressing public safety concerns because such remedies occur only after the emergency is done.

Another issue that has been hotly debated is whether the FCC’s preemption language is valid, given that it has abdicated its authority to regulate broadband. As petitioners and amici have pointed out, the FCC cannot claim it does not have the authority to regulate broadband, but then claim that it can prevent states from doing so. Additionally, during oral arguments, Judge Wilkins linked the preemption issue to public safety issues, since broad preemption could prevent states from even protecting its citizens from throttling during emergencies—such as in the case of California wildfires. FCC counsel did not answer whether a state could implement a law prohibiting the throttling of firefighters’ data without running afoul of the FCC’s preemption provisions, instead arguing that the transparency rule will prevent bad behavior on the part of broadband providers. However, the FCC counsel conceded that as long as the provider disclosed throttling or blocking practices in compliance with the transparency rule, the FTC would not be able to regulate because there would be no deceptive practice.

The FCC asserted that the FCC repealed the prior net neutrality rules because of a “chilling effect” on investment into broadband. A less strict regulatory regime would promote broadband investment, according to the FCC. Judge Millet pressed the FCC on this point, noting statements that broadband providers previously told investors that the net neutrality regulations did not harm investment.

The FCC appeared to rely on Supreme Court precedent in Brand X, which affirmed an earlier FCC’s decision to classify broadband under Title I, rather than under Title II. Indeed, Judge Millet pressed Petitioners’ counsel on this point, asking how the DC Circuit could come to a different conclusion than the one reached by the Supreme Court. Petitioners’ counsel responded that the nature of broadband service has changed since Brand X was decided in 2005.

While predicting the outcome of a particular case can often be difficult, petitioners in the case presented strong arguments—both legal and practical.

 

Celebrating New Works Entering the Public Domain in the United States

On January 1, 2019, the United States saw a mass number of new published works enter the public domain for the first time in twenty years.  After the enactment of the Copyright Term Extension Act, which extended copyright term for 20 years, a moratorium was placed on most new works entering the public domain.  Although works published in 1923 were originally scheduled to enter the public domain in 1999, the Copyright Term Extension Act gave works published between 1923 and 1977 and expanded term of 95 years.  (Note: determining the term of copyright can be incredibly complex; this chart is helpful in determining the potential public domain status of a work.)

A rich, robust public domain provides critical building blocks for the creation of new works because authors can use and reuse existing material without first seeking permission.  Examples of culturally prominent works that relied on existing works abound, from this list of 50 Disney movies based on the public domain to this paper, “Nothing New Under the Sun” (covering everything from classical music and modern jazz to literature to the stage and movies to visual arts).  While an author’s talent and work certainly contribute to great new works, such creations are not created in a vacuum; these examples of new works building on old works demonstrate the importance of the public domain.

In celebration of Public Domain Day, cultural heritage institutions are digitizing and making available a number of works and collections that are entering the public domain. The Association of Research Libraries (ARL) is gathering information about and publicizing such resources that are available in ARL member institutions. Below are just a few examples:

The Ohio State University Libraries, for example, working with the School of Music, are highlighting musical compositions entering the public domain.  The digital scores have been made available and new recordings will be posted.

The University of Oregon has created a Public Domain Day exhibit highlighting key works entering the public domain from the libraries’ collection in the categories of movies, books and music.

MIT Libraries is celebrating the public domain by digitizing 100 books from its collection, such as J.M. Barrie’s play A Kiss for Cinderella.

The University of Illinois-Urbana Champaign Libraries is featuring 1923 works of Helen Louis Thorndyke.

Significantly, HathiTrust Digital Library has made more than 53,000 works from 1923 available online.

Celebrating the public domain can give new life to old works and lead to new creations. Enjoy the mass numbers of newly available digitized works from 1923!

Advocacy and Public Policy Update

ARL has released a new Advocacy and Public Policy Update, covering the period from September 14, 2018 to January 15, 2019.  Prior updates are available here.

This update covers a wide range of topics including:

Copyright and Intellectual Property Issues

  • Public Domain Day 2019
  • Capitol Records v. ReDigi
  • Georgia v. Public.Resources.Org
  • GSU e-reserves
  • LCA comments on non-commercial uses of pre-1972 sound recordings

Net Neutrality

International Issues

  • NAFTA renegotiation
  • Marrakesh Treaty updates

Legislation and Agencies

  • US Appropriations update
  • Museum and Library Services Act
  • Geospatial Data Act
  • Open Government Data Act
  • ARL comments on NTIA’s request on consumer privacy

The Implications of the ReDigi Decision for Libraries

*Guest blog post by Jonathan Band, Counsel to the Library Copyright Alliance, which consists of the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries*

Summary

The U.S. Court of Appeals for the Second Circuit has finally issued its long-awaited decision in Capitol Records v. ReDigi. The Second Circuit affirmed the district court’s finding that the ReDigi service, which allowed the resale of iTunes files, infringed copyright. The Second Circuit’s reasoning clearly closes the door on the concept of digital first sale in a commercial setting. It also raises questions concerning the viability of Controlled Digital Lending (“CDL”) by libraries. Accordingly, CDL initiatives must be carefully reevaluated in light of this decision.

  • The Second Circuit affirmed that the first sale right, codified at 17 U.S.C. 109(a), is a limitation on the distribution right, not the reproduction right, and thus does not provide a defense to the making of copies during the course of the sale of digital files.
  • The court rejected ReDigi’s argument that its technology transferred digital files without reproducing them.
  • The court rejected ReDigi’s argument that fair use permitted any copies it made.
  • The decision is problematic for CDL for two reasons:
  1. The decision is the most analogous precedent to the library sharing of digital files of copyrighted works; and
  2. The decision could be read as implicitly rejecting the cornerstone of CDL’s fair use argument: that the first sale right should have a positive influence on the analysis of the first fair use factor.
  • Libraries need to consider whether their CDL programs are likely to pass muster under a more traditional fair use analysis that does not rely on section 109 exercising a positive influence on the first factor.

Background

The now defunct ReDigi service allowed a consumer to sell iTunes music files to other consumers. Under ReDigi’s technology, the music file on the seller’s server was broken into small packets, which were transferred one at a time to ReDigi’s server. When a packet was transferred from the seller’s computer, it was deleted from her computer. The same process was repeated when the file was transferred from ReDigi’s server to the buyer’s computer.

Capitol Records and other record labels sued ReDigi for copyright infringement. In 2013, the district court rejected ReDigi’s first sale defense on the grounds that the first sale doctrine is an exception to the distribution right and not the reproduction right, and ReDigi’s technology infringed the reproduction right. Further, the district court rejected ReDigi’s fair use defense with little discussion, noting that ReDigi’s use was commercial, non-transformative, and harmful to the market for music files.

The Second Circuit held a marathon two-hour oral argument on August 22, 2017. On December 12, 2018, the Second Circuit affirmed the district court’s decision with an opinion written by Judge Leval, one of the country’s leading copyright jurists.

Judge Leval’s Opinion

Judge Leval agreed with the district court that the first sale doctrine provided ReDigi with no defense against Capitol’s claim that ReDigi infringed its reproduction right; the first sale doctrine was a limitation on the distribution right, not the reproduction right. Judge Leval then turned to ReDigi’s contention that it had not infringed Capitol’s reproduction right. ReDigi noted that in its system, each packet was deleted from the seller’s computer as soon as it was transferred to ReDigi’s server. Accord to ReDigi, at no time was there a copy of a file on both the seller’s computer and ReDigi’s server. ReDigi argued that this meant that it didn’t reproduce the file, but just transferred it. Judge Leval rejected this interpretation, finding that the “phonorecord”—a defined term in the Copyright Act–that ended up on ReDigi’s server was a different “material object” from the phonorecord that had existed on the seller’s computer. Additionally, Judge Leval observed that as a factual matter, ReDigi could not ensure that a user had not retained duplicates stored on devices other than the computer on which the user installed the ReDigi software.

Next, Judge Leval considered whether the creation of this new phonorecord was a fair use. His analysis of fair use was more thorough and thoughtful than the district court’s, although he reached the same conclusion. He focused on the first and fourth factors, the purpose and character of the use and the impact of the use on the market for the work. His first factor analysis centered on whether the use was transformative—whether the use “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message, that than merely superseding the original work.” He explained, “uses that criticize, comment on, provide information about, or provide new uses for the copyrighted work are those likely to be deemed transformative.”

Additionally, Judge Leval stated that a secondary use may be transformative if it expands the utility of the original. Examples of utility-expanding transformative fair uses include scanning books to create a full text searchable database (Authors Guild v. HathTrust); copying works into a database to detect plagiarism (A.V. ex. rel. Vanderhye v. iPardigms); and displaying low resolution thumbnail images to facilitate image search (Perfect 10 v. Amazon, Kelly v. Arriba Soft).

To this familiar list of utility-expanding uses Judge Leval added the Supreme Court’s decision in Sony v. Universal, where the Court found that fair use permitted a consumer to record a television broadcast for viewing a more convenient time. Sony typically is treated as a paradigmatic example of a non-transformative fair use. Judge Leval, however, endorsed the Second Circuit’s interpretation earlier this year in Fox News v. TV Eyes that the consumers’ use in Sony was transformative: a use may be fair “if it utilizes technology to achieve the transformative purpose of improving the efficiency of delivering content without unreasonably encroaching on the commercial entitlements of the rights holder.”

Judge Leval found that ReDigi’s use was not transformative because “it provides neither criticism, commentary, nor information” about copyrighted works. Moreover, it did not “deliver the content in a more convenient and usable form to one who has acquired an entitlement to receive the content.” Instead, it just provided “a market for the resale of digital music files, which sales compete with sales of the same recorded music by the rights holder.” Further tilting the first factor against fair use was the commercial nature of ReDigi’s activity.

After cursory treatment of the second and third factors, the nature of the copyright work and the amount and substantiality of the portion used, Judge Leval examined the fourth factor, the effect of the use upon the potential market for or value of the copyrighted work, in more detail. Judge Leval noted that ReDigi made reproductions for “the purpose of resale in competition with the Plaintiffs’ market for the sale of their sound recordings.” ReDigi sold its copies “to the same consumers whose objective in purchasing was to acquire Plaintiffs’ music.” Judge Leval also distinguished the resale of physical copies from digital copies. “The digital files resold by ReDigi, although used, do not deteriorate the way printed books and physical records deteriorate.” The only difference between the copies sold by Capitol and the copies sold in ReDigi’s secondary market was that ReDigi’s copies were less expensive.

Judge Leval then weighed the four factors together. He found that “even if ReDigi is credited with some faint showing of a transformative purpose, that purpose is overwhelmed by the substantial harm ReDigi inflicts on the value of Plaintiffs’ copyrights through direct competition in the rights holders’ legitimate market, offering consumers a substitute for purchasing from the rights holders.”

At the end of the opinion, Judge Leval considered an argument raised in an amicus brief by copyright law professors that the first sale doctrine “must be read to vindicate purchasers’ ability to alienate digital copyright works…without regard to technological medium.” Judge Leval expressed reluctance to wade into this policy argument. “Courts are poorly equipped to assess the inevitably multifarious economic consequences that would result from such changes of law.” Furthermore, reading section 109(a) to accommodate digital resale “would exceed the proper exercise of the court’s authority.” Here, “Congress dictated the terms of the statutory entitlement.” Section 109(a) clearly “negates a claim of unauthorized distribution in violation of the author’s exclusive rights…but not a claim of unauthorized reproduction.” Accordingly, “if ReDigi and its champions have persuasive arguments in favor of the change of law they advocate, it is Congress they should persuade.

Implications for Libraries

The ReDigi decision requires reevaluation of CDL initiatives. The decision is the most analogous precedent to library sharing of digital files of copyrighted works. To be sure, a library would engage in CDL for noncommercial educational purposes, in contrast to ReDigi’s clearly commercial motivation. Moreover, a library could design its CDL program to make it as different from ReDigi’s as possible. For example, the library might engage in CDL only with respect to out of print scholarly monographs. Nonetheless, libraries cannot ignore the long shadow cast by the decision.

Furthermore, the decision calls into question the theoretical underpinnings of CDL. Specifically, CDL relies on the fair use right to replicate the first sale right in the digital environment. Judge Leval’s decision, however, could be read to suggest that the objectives of the first sale right cannot guide the fair use analysis.

The Library Copyright Alliance (“LCA”) filed an amicus brief in support of ReDigi, where we argued that the similarity between the use ReDigi sought to make and uses authorized by section 109(a) should have tilted the first fair use factor in favor of ReDigi. We noted that in Authors Guild v. HathiTrust, the Second Circuit used the rationale for a specific exception—17 U.S.C. § 121, which permits the making of accessible format copies for people who have print disabilities—to support a finding of a valid purpose under the first factor. Likewise, the Copyright Office has repeatedly based fair use conclusions on specific exceptions in the context of a rulemaking under section 1201 of the Digital Millennium Copyright Act, 17 U.S.C. § 1201. We urged the Second Circuit to recognize that the purpose behind the first sale right favored ReDigi in the first fair use factor analysis.

Unfortunately, Judge Leval did not address this argument. The lack of reference to this argument is somewhat surprising given that it was based on the Second Circuit’s reasoning in the HathiTrust decision, and that the Association of American Publishers filed an amicus brief specifically responding to LCA’s brief. Moreover, fair use was the obvious means of addressing the policy concerns raised by the copyright law professors in their amicus brief. Fair use could achieve the objectives of the first sale doctrine in the digital environment without Congress amending the statute.

In one passage, Judge Leval arguably disagreed with this argument. When responding to the law professors’ suggestion that section 109(a) be interpreted to apply in the digital context, Judge Leval stated “the copyright statute is a patchwork, sometimes varying from clause to clause, as between provisions for which Congress has taken control, dictating both policy and the details of its execution, and provisions in which Congress approximatively summarized common law developments, implicitly leaving further such developments to the courts. The paradigm of the latter category is § 107 on fair use.” This could be interpreted to imply that specific exceptions should not influence the first factor analysis—that specific exceptions and fair use should each stick to their own lanes.

On the other hand, by not rejecting it, Judge Leval arguably allowed the argument to live to fight another day. Additionally, Judge Leval’s copyright patchwork argument really doesn’t make much sense. The first sale right is a judge-made doctrine which was codified in section 109(a), just as the fair use right is a judge-made doctrine which was codified in section 107. Thus, it is completely appropriate for a court to consider the principles underlying the first sale right when applying the fair use right.

The status of the argument is particularly significant for libraries interested in engaging in CDL. CDL relies heavily on the notion that fair use enables libraries to replicate the first sale right in a digital context. In their White Paper on Controlled Digital Lending of Library Books, David Hansen and Kyle Courtney state,

The core concept with CDL is that it closely mimics the economic transaction that Congress has already provided for through the first sale doctrine under Section 109. The purpose of the use with CDL is to fulfill the statutory objectives and balance of rights already identified by Congress in Section 109, effectuating that balance considering a new technological use not contemplated at the time Section 109 was enacted. The crux of the proposition is that the purpose and intent of Section 109 should positively influence the “purpose and character” assessment in the fair use analysis.

This, of course, is the same theory LCA articulated in its amicus brief. LCA still believes this theory is correct, and will continue believing in its correctness unless and until the Supreme Court explicitly rejects it. However, Judge Leval’s failure to even acknowledge the theory when he had the opportunity to do so should cause libraries to reevaluate their CDL initiatives. In particular, they need to consider whether their CDL programs are likely to pass muster under a more traditional fair use analysis that does not rely on section 109 exercising a positive influence on the first factor.

ARL Files Comments in NTIA Request for Comment on Consumer Privacy

On Friday, November 9, ARL filed comments responding to National Telecommunications and Information Administration’s (NTIA) request for comment on “Developing the Administration’s Approach to Consumer Privacy.”

In the submitted comments, ARL recognizes that strong privacy protections for users is necessary, but also that overly-prescriptive requirements can cause difficulties in compliance. The comments point to several elements that are critical for meaningful privacy protection, including ensuring transparency and consent, while other areas may be nuanced and policymakers must consider unintended consequences of particular regulations.  For example, the right to deletion raises complex issues and requires a nuanced approach to avoid unnecessary alterations to the cultural and historical record.  The comments also note that effective remedies and enforcement mechanisms are needed to make regulations meaningful.

All filed comments are available on the NTIA site.

Report from AAU-APLU Workshop on Accelerating Access to Research Data

*This is a guest blog post by Mary Lee Kennedy, Executive Director of ARL; Judy RuttenbergProgram Director for Strategic Initiatives; and Cynthia Hudson-Vitale, Head Digital Scholarship and Data Services, Penn State University Libraries*

Over the past two days we participated in the AAU-APLU workshop on Accelerating Access to Research Data, sponsored by the National Science Foundation (NSF). Eighteen of the thirty teams were ARL institutions from Canada and the United States.

This workshop followed directly from the November 2017 AAU-APLU Public Access Working Group Report and Recommendations, and was further informed by the National Academies recommendations in their 2018 consensus report, Open Science by Design: Realizing a Vision for 21st Century Research.  For those who attended the Association meeting, you will remember the update from Alexa McCray, Chair of the National Academies report, and Kacy Redd, Assistant Vice President, Science & Mathematics Education Policy from APLU who staffed the AAU-APLU working group.

This workshop was a pivotal experience at a time in which governmental agencies in the US, Canada, and the EU are focusing on open science, and when many institutions are figuring out how to apply and influence policies, practices and infrastructure. Thirty institutional teams, some of whose members had never worked together before, grappled with the above mentioned report recommendations with a commitment to a set of next steps. Most teams included someone from the research office, IT/high performance or academic computing, and the library, while some included provosts and faculty.

The NSF, NIH, Department of Energy, National Institute on Standards and Technology, the Department of Defense, OSTP, and National Academies actively participated. Alexa McCray and Sarah Nusser (chair of the AAU-APLU Public Access Working Group) set the context upfront: agencies, institutions, and institutional teams including their libraries need to collaboratively design researcher-centered data services and support; RDM is an integral part of good study design; and research data is a valuable institutional asset.

With this context in mind, the teams got to work, with many conversations, and commitments to work together on specific tasks back at their institutions, and to continue to work together as a whole.  I know we all look forward to the workshop report and decisive next steps. In the meantime, please find below a sample of identified priorities and an initial set of next steps for ARL, as well as steps to consider in your institutions.  

Institutional Priorities for Public Access to Research Data

A number of themes emerged when institutions shared their priorities for accelerating public access to research data. A sample of these included:

  • Facilitating low-barrier, seamless support and services for public access to data at the institutional-level through:
    • Establishment of local “one stop services” for research support services, including data management and sharing stakeholder groups to coordinate faculty-centered research data services;
    • Development of training and workshops for public access to data and open science practices, specifically focused on graduate students.
  • Collecting and then mining data management plans (DMP’s) of funded research to:
    • Plan for the deposit and curation of research data;
    • Work with faculty members earlier in the research process to facilitate good data management practices.
    • Identify high value data.
  • Leveraging existing partnerships, cross-institutional collaborations, resources, and tools to extend capabilities for research data services, such as the:

Initial Considerations on Community Next Steps

With our greatest impact being at the intersection between institutional, research and learning community, and public policy communities, ARL will work with:

  • Our colleagues at AAU and APLU, including
    • Articulating a vision, a strategy, and a direction for accelerating public access to data, and
    • Collaborating to scope, and as appropriate participate in, additional workshops for the university and agency communities.
  • Our Advocacy and Public Policy Committee and Research Communications and Collections Working Group to seek ways to influence federal data management policies by representing the needs, capacity, and role of the research library.
  • National agencies, associations, and our ARL Academy (as appropriate) to support the membership in developing open science and open scholarship fluency—particularly as it relates to methods, tools, and data management practices across the institution, and with other research communities.
  • Scholarly and professional societies as potential partners in articulating disciplinary expectations around research data quality, value, and retention.

What can you do as an ARL member?

Please reach out to Mary Lee or Judy to discuss the workshop and its outcomes. ARL member directors James Hilton, Erik Mitchell, and Steve Mandeville-Gamble were also present, along with 15 additional ARL institutions, many of whom included library staff on their teams.

The workshop provided a structured and focused opportunity for institution-based teams to meet and begin to map their assets—technology, policy, people, and other—as well as their challenges. Many institutional teams pledged to continue meeting. If you were not able to attend, you could circulate the agenda to your institutional colleagues (in the research office, in IT, in high performance or academic computing, and other) and encourage discussion along the same lines.

The workshop organizers at AAU and APLU are considering site visits beginning in early 2019 to include institutions that were not able to participate in the workshop. If this advances into a plan, please watch for an announcement of that opportunity.

This was a very engaging workshop, concluding with commitments on concrete deliverables.  It sets an optimistic tone for the path ahead.

ARL Celebrates Open Access Week with Commitment to Open Scholarship

*This is a guest blog post by Judy Ruttenberg, ARL program director for strategic initiatives.*

ARL’s mission is to catalyze the collective efforts of research libraries to enable knowledge creation and to achieve enduring and barrier-free access to information. In celebration of Open Access Week 2018, “Designing Equitable Foundations for Open Knowledge,” we’re sharing ARL’s programmatic priorities in supporting open scholarship in the coming year.

With a new focus area around open scholarship, ARL aims to shift the balance of library strategy, staffing, and budgets in favor of open content and what we are calling academy-owned infrastructure (also known as scholar-owned or scholar-led). The Association is looking at initiatives in support of this big bet in order to support member libraries in:

  • Increasing their purchasing and investment power to support the full range of their collections and research priorities
  • Making informed decisions about where to invest in new forms of open content and infrastructure based on shared criteria and local interests
  • Partnering in the research enterprise within their institutions in a range of activities from data curation and management to publishing

The past several years have seen a decisive global trend among funding bodies, government agencies, and research communities to accelerate scholarly discovery and improve its effectiveness through open practices (such as data sharing and large-scale collaboration) and digital technology. At the same time, some scholarly communities are pushing for greater experimentation and transparency in peer review (ASAPBio), sharing preprints (arXiv, bioRXiv, and many others), and deploying open annotation (hypothes.is) that show a glimpse of what the future of scholarly communication could look like post-journal formats—accessible, dynamic, and networked. Research libraries are positioned to lead in this transformation when deeply engaged in research and scholarly communities and when a shared understanding and commitment exists to collectively steward the full scholarly record. ARL is positioned to  broker a shared agenda with scholarly and learned societies and communities, along with academic leadership and US federal agencies, and partners in Canada, the EU, Australia, and the UK in support of equitable and open knowledge.

More recently, US research library leaders participated in crafting the recommendations of the AAU-APLU Public Access Working Group and the National Academies Open Science by Design, consensus report.  As an Association, ARL looks forward to working with the membership, partners, and stakeholder communities on implementing their recommendations. Our colleagues in Canada provided similar feedback through Portage to the Tri-Agency Research Data Management Policy and CARL will be a key partner in these initiatives.

By strengthening open research practices, policies, and standards, we strengthen libraries’ ability to support local research, scholarship, and collections priorities of all kinds in order to meet their missions.

Eleventh Circuit Reverses and Remands Georgia State E-Reserves Case (Again)

The long saga of the Georgia State University (GSU) e-reserves case continues as the Court of Appeals for the Eleventh Circuit reversed the district court’s ruling which had found that the vast majority of GSU’s use of works in its e-reserves constituted a fair use. This is the second time the Eleventh Circuit has reviewed the case, and the second time it has reversed.

In 2008, publishers sued GSU for copyright infringement, arguing that the use of unlicensed excerpts of copyrighted works in the e-reserves constituted infringement. GSU defended itself, relying on the right of fair use. In the first bench trial, the district court ruled in favor of fair use for 43 of the 48 cases of alleged infringement. The Eleventh Circuit reversed and remanded the case in 2014, directing the lower court to re-examine its weight to market substitution and re-evaluate the four fair use factors holistically, rather than taking an arithmetic approach (i.e., if three fair use factors favor the use, but one disfavors it, fair use should always apply). On remand, the district court re-evaluated the four factors and found that 44 of the 48 cases constituted fair use. In her analysis, Judge Evans assigned each factor a weight: “The 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.” The publishers again appealed to the Eleventh Circuit, which heard the case in 2017. (Here’s a link to ARL’s amicus brief in the second appeal.)

On October 19, 2018, the Eleventh Circuit released its 25 page opinion—more than a year after hearing oral arguments in the case—finding that the district court again erred in its evaluation of fair use. The Eleventh Circuit suggests that the district court was only mandated to re-evaluate its analysis on the second and third factors, but had instead also re-evaluated its analysis on factor four (in which the district court found in the first trial that in 31 cases, the fourth fair use factor weighed against fair use).

Additionally, the Eleventh Circuit points out that “The district court again applied a mathematical formula in its overall analysis of fair use,” which it had been instructed against. Although the district court couched the given weights as “initial” and “approximate,” the Eleventh Circuit found that the district court only adjusted these factors in four instances and di not adjust the other factors in the overall analysis. Thus, “We conclude that the district court’s quantitative rubric was an improper substitute for a qualitative consideration of each instance of copying in the light of its particular facts.” The Eleventh Circuit has remanded the case, directing the district court to use a holistic approach to fair use, and avoid any mathematical approach with respect to the four factors.

Another issue the Eleventh Circuit opinion addresses is whether the cost of purchasing licenses affects the third factor; the district court in the second trial considered the price of use on two ocassions. The Eleventh Circuit rules that price should not be taken into account when evaluating the amount and substantiality of the portion of the work used.

While the Eleventh Circuit reversed and remanded on the above issues, it affirmed the district court’s decision not to reopen the record. Publishers in 2015 filed a motion to reopen, asserting the need to introduce “Evidence of GSU’s ongoing conduct (e.g. its use of E-Reserves during the most recent academic term)” as well as evidence of the availability of digital licenses. Here, the Eleventh Circuit notes that this decision is within the discretion of the trial court.

Kevin Smith posted about the GSU case on In the Open, with an excellent summary of what the Eleventh Circuit’s opinion (as well as its last opinion) does not do, and what, as a result, the publishers have lost on:

…But the big principles that the publishers were trying to gain are all lost. There will be no sweeping injunction, nor any broad assertion that e-reserves always require a license. The library community will still have learned that non-profit educational use is favored under the first fair use factor even when that use is not transformative. The best the publisher plaintiffs can hope for is a split decision, and maybe the chance to avoid paying GSU’s costs, but the real victories, for fair use and for libraries, have already been won.