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What Have Rightholders Said About the Section 108 Fair Use Savings Clause?

As the Copyright Office considers reform of Section 108, the provision of the Copyright Act that provides for specific limitations and exceptions for libraries, one of the critical considerations is whether the revisions that the library and archive community can gain is worth the risk of what might be lost. I noted in my previous blog post that stakeholders like the Association of American Publishers (AAP) and Authors Guild have made it abundantly clear that they would like to strip Section 108 of its fair use savings clause, using the first two examples of their statements that came to mind. A deeper search into the statements of rightholders—primarily in court briefs (party and amici filings), but also in statements before Congress and in the press—confirms this position.

Before getting into the statements of rightholders regarding the relationship between Section 108 and fair use, a reminder of what Section 108(f)(4)’s saving clause says:

(f) Nothing in this section—

[…]

(4) in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections

This provision seems pretty unambiguous, stating that “nothing” in Section 108 “in any way affects the right of fair use.” And yet, in litigation, several rightholders have suggested that this clear language doesn’t actually mean what it says it means; instead, they have argued, specific limitations and exceptions do alter the fair use calculus and allowing reliance on fair use threatens specific exceptions. As evidenced by the statements below (which should not be considered a comprehensive list), there is a clear hostility to Section 108’s reference to fair use. As a result, there is a credible and serious risk that lobbyists for these groups would expend tremendous effort to remove the fair use savings clause from Section 108. 

Authors Guild v. HathiTrust

Authors Guild’s Memorandum of Law in Support of Plaintiff’s Motion for Partial Summary Judgment on the Pleadings (District Court for the Southern District of New York)

reading Section 108(f)(4) to allow Defendants to reproduce and distribute copyrighted works in a manner that is specifically promulgated by and beyond the express limits of Section 108 is “outside the plausible readings of the provision.”

Authors Guild’s Motion for Summary Judgment (District Court for the Southern District of New York)

Plaintiffs stand by their position that the conduct to which Defendants admitted in their Answer is more than sufficient to establish that they have exceeded the limitations of Section 108, and that Defendants cannot rely on the “savings clause” in Section 108(0(4) to justify as fair use a project that exceeds practically every limitation in the library exemption. The discovery process only served to adduce additional facts demonstrating just how callous Defendants have been in their disregard for the requirements of that section.

Authors Guild Brief to the Second Circuit on Appeal From the District Court For the Southern District of New York

[T]o read the savings clause as permitting ‘post-108’ reliance on fair use as if no § 108 copying had occurred is to come dangerously close to reading § 108 out of the statute. Given that Congress deemed Section 108 “necessary to exempt much library photocopying from copyright liability, and since Congress did not likely intend to construct complex mechanisms in most of the section only to render them moot via subsection (f)(4), that result is implausible.

 Motion Pictures Association of America (MPAA) Amicus Brief (Second Circuit)

Exceptions to copyright, including Section 107, must be viewed narrowly as compared to the exclusive rights. As the Supreme Court stated, where the Copyright Act “sets forth exceptions to a general rule, we generally construe the exceptions ‘narrowly in order to preserve the primary operation of the provision.’” Tasini v. N.Y. Times Co., 206 F.3d 161, 168 (2d Cir. 2000) (quoting Commissioner v. Clark, 489 U.S. 726, 739, 109 S.Ct. 1455, 103 L.Ed.2d 753 (1989)). In its analysis of whether the uses at issue were fair, the district court instead ignored Section 108 and analyzed fair use broadly and the exclusive rights narrowly, disrupting Congress’s carefully crafted balance in Title 17.

[…]

In other words, by enacting Section 108, Congress intended to provide libraries with more liberal, as well as more certain, exceptions than would qualify under fair use. It did not view fair use as an expansion of Section 108 rights, swallowing the Section 108 exceptions, but instead viewed Section 108 as providing more generous uses than might otherwise be allowed under Section 107.

When Section 107 is viewed in the context of Section 108, it becomes inconceivable that Congress would have intended for Section 107 to allow mass digitization of copyrighted works without appropriate restrictions to balance all interests, particularly since it did not do so even in Section 108.

[…]

Yet, the district court below did not consider Section 108, concluding that it was irrelevant to its determination of fair use. See Order at 22 n.32 (“I need not decide if the MDP fits within the parameters of 17 U.S.C. § 108 because it unquestionably fits within the definition of fair use.”). In so ruling, the district court lost the benefit of the decades of discussion and careful consideration of stakeholder interests that Section 108 reflects, and that remains ongoing.

Second, the district court misapplied the fair use test and overlooked key facts that weigh heavily against a finding of fair use in this case. In particular, the district court employed a broad interpretation of fair use that effectively reads out of the Copyright Act specific limitations and exceptions that Congress carefully crafted to grant permission for specific uses of copyrighted works by specific groups of users. Indeed, the court all but ignored two provisions that speak directly to the types of uses at issue here – Section 108 (which deals with reproduction by libraries and archives) and Section 121 (which deals with reproduction for blind or other people with disabilities) – and which authorize a far narrower scope of copying than the district court found to be permissible. By concluding that the limits set forth in these specific provisions were irrelevant to its determination of fair use, the district court effectively rendered these provisions mere surplusage. Because the Copyright Act contains numerous such limitations and exceptions dealing with uses of copyrighted works in a host of other contexts, the district court’s broad interpretation of fair use, if followed by other courts, threatens to render superfluous these many carefully-crafted limitations and exceptions, thereby upsetting the careful balance of interests that Congress sought to achieve in the statute.

[…]

The district court’s decision to ignore Section 108 in its fair use analysis – and then to adopt an interpretation of fair use well beyond what is authorized by Section 108– effectively rendered the provision surplusage. Doing so violates the cardinal rule . . . that significance and effect shall, if possible, be accorded to every word. . . . [A] statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” Tasini v. N.Y. Times Co., 206 F.3d 161, 167 (2d Cir. 2000) (quotation marks omitted); aff’d, 533 U.S. 483 (2001). As the Copyright Office has observed, it is simply “implausible” that Congress intended fair use, when applied to copying by libraries, to excuse activity so far beyond the scope of Section 108 as to render irrelevant all of the distinctions made in Section 108’s carefully crafted provisions. See 1983 Register’s Report on Library Copying, at 97-98.

Association of American Publishers (AAP) Amicus Brief (Second Circuit)

The district court held that Appellees’ mass-scale use of Appellants’ copyrighted works was fair, despite the fact that their activities fall directly within the subject matter of the Section 108 exceptions, yet grossly exceed the uses permitted in Section 108. Where libraries engage in activities that are specifically legislated in Section 108, the courts should look there for guidance. As a general rule of statutory interpretation, where there is overlap between a general exception and a specific exception, the court should apply the more specific law. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 385 (1992). Congress would not have enacted specific exceptions for libraries and archives in Section 108, with carefully tailored conditions on any copying, and yet intended Section 107 to permit the same activities but without any such conditions or limits. Applying Section 107 as the district court did in this case allows Section 107 to swallow Section 108 entirely, rendering Congress’ careful construct of the latter superfluous.

Authors Guild v. Google

Authors Guild’s Petition for Writ of Certiorari

Finally, Google cannot evade the fact that the decision below eviscerates Section 108, which carefully limits the conditions under which libraries may digitize their books. Google’s only response is to cite Section 108’s savings clause regarding fair use.. But if libraries can obtain unauthorized, full digital copies of their entire collections without regard to Section 108, which explicitly limits library copying, that entire section of the Act becomes meaningless surplussage.

(AAP) Statement Submitted for the Hearing Record, House Judiciary Committee, Subcommittee on Courts, Intellectual Property and the Internet, Hearing on “Preservation and Reuse of Copyrighted Works (April 2, 2014)

Should Congress decide to embark on updating Section108 to provide a balanced set of modern exceptions for these cultural institutions (including museums), AAP urges Congress to keep the following general principles in mind:

[…]

  • Fair use is not a substitute for a specific limitation or exception where the unauthorized use at issue is predictable, systematic, and/or large scale. To the extent that Congress determines that such an unauthorized use serves a public purpose worthy of a copyright limitation or exception, the scope of the statutorily-authorized activity should be clearly described and the institutions that would be eligible to engage in that activity should be clearly identified.
  • […]
  • In any revision of Section 108, the relationship between fair use and the specific limitations or exceptions should be more clearly defined. If a particular activity (like copying for preservation purposes or making copies for users) is addressed in a revised Section 108, the safeguards and balances built into the statutory language should not simply be disregarded in favor of applying a fair use analysis. The Congressional intent reflected in the scope of a specific Section 108 limitation or exception should, at a minimum, inform any fair use analysis, and Congress’ intention that it do so should be made explicit in the language of the limitation or exception itself.

Statement of Allan Adler, General Counsel and Vice President of Legal and Government Affairs at AAP in Communications Daily

Congress should “clarify ‘the relationship between the specifics of the Section 108 exemption and more general limitations and exceptions like fair use . . . It makes little sense for Congress to attempt to craft specific limitations and exceptions that take into account the nature of particular users or particular kinds of works if instead people are simply going to look to fair use in order to support such activities.”

 

Thoughts on the Section 108 Reform Discussion Draft

On Friday, September 15, 2017, the Copyright Office released a discussion document on proposed reform to Section 108 of the Copyright Act, the provision that sets out specific limitations and exceptions for libraries and archives.

In recommending reform, the Copyright Office acknowledges “the fact that many members of the library and archives communities have expressed concern about revising section 108.” However, the Copyright Office is nonetheless convinced that Section 108 should be updated to address the digital age.

The Copyright Office makes several proposals for revision including, among others:

  • Including museums as beneficiaries of the exception as well as adding some additional conditions for eligibility for Section 108
  • Replacing the current published/unpublished distinction with a publicly disseminated/not publicly disseminated distinction
  • Allowing preservation copies for all works to be put into a dark archive
  • Removing the three-copy limit and replacing it with a “reasonably necessary” standard
  • Allowing for a replacement copy to be made for “fragile” copies and expanding off-premises access for replacement copies
  • Eliminating the exclusion of certain works from the provisions permitting copies to be made at the request of users
  • Providing that there is no federal copyright infringement for preservation reproductions in violation of non-bargained-for contractual language, though actions may still be brought for contractual violations
  • Allowing institutions to contract with third parties to perform the reproduction functions under section 108

The report itself, as well as the recommendations, is clearly the product of a great deal of thought and engagement with stakeholders. The recommendations clearly lay out the reasoning behind the proposals and give concrete examples illustrating how the new provisions would operate.

For the most part, the recommended changes to Section 108 reflect the current state of what libraries are already doing under Section 108, supplemented by the fair use right under Section 107. Libraries are already engaged in digitization activities, including mass digitization, for preservation purposes. Although there is a three-copy limit under current Section 108, libraries already engage in the going beyond this limit when making digital copies for the purpose of creating one end-use copy; this is simply a practical extension of what Section 108 intended to permit and fair use should be thought to naturally extend to such temporary, incidental copies.

While codifying these activities to provide a safe harbor so that libraries do not need to rely on fair use is beneficial, in some ways the report fails to fully extend to many of the projects libraries currently engage in. For example, the preservation copies would be limited to a dark archive; libraries already routinely rely on fair use to digitize special collections and provide access to the public. The Copyright Office also chooses not to propose an exception for web-harvesting, though many libraries currently preserve web pages around particular issues.

Although the report contains many positive recommendations—even if they do not fully reflect the current activities of many libraries and archives—one of the deepest concerns regarding reform of Section 108 is that any gains that could be made to update the provision would not be worth the risk of potentially losing the fair use savings clause. Certainly, there is no dispute that Section 108, original written for the 1976 Copyright Act, could benefit from some updates for the digital age. However, these revisions are not necessary because fair use sufficiently updates Section 108 to cover activities necessary in the digital age. Indeed, the Second Circuit confirmed in Authors Guild v. HathiTrust that Section 107 complements the specific provisions in 108.

To be clear, the Copyright Office’s discussion draft explicitly recommends retention of the savings clause and its confirmation of the importance of fair use is much appreciated.

In recognition of Congress’s intent to maintain both section 108 and fair use as tools for libraries and archives, and the use and acceptance of this principle by eligible institutions, copyright owners, users, and the courts, the Copyright Office feels strongly that the fair use savings clause must remain in section 108 regardless of any other amendments that may be found necessary. Even a revised section 108 cannot address every situation in which public policy would deem it reasonable for a library or archives to reproduce or distribute a copy of a work without first attempting to seek permission. In fact, this Discussion Document explicitly leaves web harvesting and similar collection of Internet content by libraries and archives to fair use, and there are other circumstances not addressed by section 108, such as electronic reserves, where fair use must continue to govern. Thus, it is essential that the fair use savings clause stay in section 108.

While the Copyright Office’s commitment to retaining the fair use savings clause is a welcome inclusion in the report, a lingering concern remains as to whether the fair use savings clause would survive the legislative process. Although the Copyright Office recognizes the wisdom and importance of including a savings clause, it is clear that other stakeholders—particularly the Association of American Publishers (AAP) and the Authors Guild—want to remove the savings clause.

In litigation between the Authors Guild and HathiTrust, the Authors Guild advanced the argument that libraries could not rely on fair use because of the existence of a specific limitation and exception under the Copyright Act. Even though the statute clearly provides a savings clause that reads, “Nothing in this section in any way affects the right of fair use . . .” the Authors Guild nonetheless argued against its application. The Second Circuit dismissed this argument in a footnote, but the Authors Guild’s actions in the case show a clear intention to attack fair use.

Similarly, last year, Allan Adler, General Counsel and Vice President of Legal and Government Affairs at AAP, was quoted in Communications Daily as advocating for Congress to “clarify ‘the relationship between the specifics of the Section 108 exemption and more general limitations and exemptions like fair use . . . It makes little sense for Congress to attempt to craft specific limitations and exceptions that take into account the nature of particular users or particular kinds of works if instead people are simply going to look to fair use in order to support such activities.”

With stakeholders like the AAP and Authors Guild eager to strip Section 108 of its fair use savings clause, supporting Section 108 reform becomes a very risky proposition. While the Copyright Office recommends some reasonable and sensible updates to Section 108 for the digital age, these improvements must be weighed against the risk of losing the fair use savings clause; the proposed changes are clearly not worth trading in the savings clause, but whether it is worth the risk of the legislative process remains a question.

ARL Urges FCC To Maintain Strong Net Neutrality Provisions, Submits Two Sets of Reply Comments

Last week, ARL submitted two sets of reply comments to the Federal Communications Commission (FCC) urging the Commission to maintain strong protections for net neutrality.  ARL joined with eight other higher education associations to file reply comments noting that an open Internet is fundamental to the service missions of institutions of higher education and libraries, that Title II provides a strong legal basis to protect and preserve an open Internet, while also pointing to possible protections the FCC could enact under Section 706.  Additionally, ARL submitted individual reply comments that highlight the importance of net neutrality to ARL institutions, urges the FCC to maintain protections under Title II (noting that it is the clearest path to regulatory certainty), and noting the importance of an open Internet to the First Amendment.

ARL’s reply comments note that while ensuring strong net neutrality rules consistent with joint principles released by library and higher education groups are the primary concern,

…if the FCC reclassifies, the resulting conundrum is this: if the FCC attempts to adopt strong rules, the stronger they are the more judicially-vulnerable they are. If the FCC responds to this appellate vulnerability and adopts relatively weak rules, it shifts the risk to consumers, exposing them to abusive ISP practices.

An open Internet is critical to the functioning of the Internet today, including for the cutting-edge research, platforms, innovations and collaboration that takes place at ARL members. In addition to several examples of the importance of an open Internet to ARL’s work and services included in the reply comments, additional examples have been collected on this page. Net neutrality enables libraries to provide access to vast troves of data, facilitate discovery, preserve and share culture and information, provide interactive connected spaces and classrooms, facilitate data management, offer online courses, and provide international, interconnected wifi access.

Read ARL’s press release here.

DOJ Overreach in Case Demanding Information on Website Visitors Threatens First, Fourth Amendments

On July 12, the Department of Justice has issued a request to web hosting provider, DreamHost, seeking information on visitors to a website that was used to organize protests against President Trump on Inauguration Day. DreamHost has fought this request because it would amount to handing over 1.3 million visitor IP addresses, contact information and content, in what appears to be a clear threat to freedom of speech and privacy.

The broad search warrant seeks for DreamHost to turnover detailed information, including IP addresses, contact information and financial information of all visitors to the site; DreamHost already complied with the request to turn over the registration information of the owners of the website. The warrant also seeks communications and unpublished content, such as draft posts and photos.

The request will clearly have the effect of chilling freedom of speech and freedom of association. It appears that the Administration is seeking to identify dissidents who oppose President Trump, a clear threat to the First Amendment rights of the website’s visitors. One can only assume that the Administration is using the power of the DOJ to threaten and silence critics of President Trump.

For libraries, who have long championed freedom of speech and association, these reports are particularly appalling. Privacy is essential to the exercise of the First Amendment so that an individual may research, inquire and learn without having the subject of his interests scrutinized by others. Patron privacy has long be a fundamental value of libraries and in a world where so much information is now online, it is critical for protections to extend to visitors to websites. The DOJ’s warrant threatens these central tenants to a free and open democracy.

 

DreamHost is challenging the request, with a hearing scheduled for today. DreamHost argues that the search warrant is overly broad and violates the Fourth Amendment and privacy laws. You can read more at DreamHost’s blog post on the case.

 

Will This Be the Congress to Finally Pass ECPA Reform?

Today, July 27, 2017, Senators Lee (R-UT) and Leahy (D-VT) introduced the ECPA Modernization Act of 2017, a bill to reform the Electronic Communications Privacy Act (ECPA). ECPA is a law from 1986 governing privacy for online communications and, not surprisingly, has long been in need of reform. A law written more than thirty years ago clearly did not conceive of the modern digital age.

Congress has seriously considered reform to rectify the absurdities of the 1986 law that denies individuals a reasonable expectation of privacy for the content of their online communications. Earlier this year, in January 2017, Congressmen Yoder (R-KS) and Polis (D-CO) reintroduced the House version of ECPA reform, the Email Privacy Act (H.R. 387), a bill that unanimously passed the House of Representatives in 2016.

ECPA was written in an era in which few individuals owned computers, most did not use e-mail, social media services like Facebook did not exist, and “the cloud” had not yet transformed the way people communicate and work. It therefore 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 ECPA Modernization Act of 2017 would rectify this absurdity and restore Fourth Amendment protections to the digital world, requiring a warrant for the content of online communications just as a warrant would be required for a copy of a document stored in a file cabinet. It would also ensure that the government provides notification to users after it has received content after a warrant has been executed. These reforms are greatly needed in our modern era where everyday communications take place online.

ARL applauds Senators Lee (R-UT) and Leahy (D-VT) for their leadership in promoting much needed ECPA reform in the Senate and urges Congress to quickly pass these bills.

ARL and Higher Education Groups Urge FCC to Protect Net Neutrality

*Cross-posted from ARL News*

The Association of Research Libraries (ARL) has joined with eight higher education associations in submitting comments, due today, July 18, 2017, to the US Federal Communications Commission (FCC), to support strong net neutrality rules. In 2015, the FCC set forth its Open Internet Order, which reclassified the Internet as a common carrier under Title II of the Communications Act and also relied on the FCC’s authority under Section 706 of the Telecommunications Act to provide a firm legal basis to protect net neutrality. The FCC, under new leadership, is now seeking to reverse or amend the 2015 order.

As both providers and consumers of content and services on the Internet, research libraries and their parent institutions have long relied on the open character of the global network, including non-discriminatory access. The 2015 rules assured that Internet providers would not be able to create “fast lanes”—designated for those willing and able to pay a premium—and “slow lanes” for everyone else. Specifically, the FCC laid out bright-line rules against blocking, throttling, and paid prioritization.

“Net neutrality is critical to equitable access to information,” said Mary Case, ARL president and university librarian and dean of libraries at the University of Illinois at Chicago. “Without strong rules to protect an open Internet, service providers could act as gatekeepers and place commercial interests above non-commercial expression. The FCC’s 2015 Open Internet Order sets forth strong, clear, and enforceable rules to protect net neutrality. The FCC should look beyond the quantitative cost-benefit analysis suggested in its Notice of Proposed Rulemaking and recognize the qualitative benefits libraries and higher education provide through access to an open and neutral Internet. There is no reason for the FCC to alter the current rules, which ensure that intellectual freedoms such as education, research, free speech, and innovation can continue to flourish.”

The comments emphasize the importance of net neutrality to libraries and higher education, and note that no changes to the 2015 Open Internet Order are necessary. The comments also stress that any action by the FCC regarding regulation must protect the key net neutrality principles endorsed by library and higher education groups to ensure that information can continue to flow unimpeded.

Battle for the Net: Day of Action to Save Net Neutrality

Today, July 12, 2017, ARL is joining thousands of websites and tens of thousands of individuals in participating in an Internet-wide Day of Action to Save Net Neutrality. This day of action is designed to draw attention to the importance of net neutrality and the current threats an open Internet faces due to new leadership at the Federal Communications Commission (FCC).

The strong net neutrality rules we currently have in place, set forth in the FCC’s 2015 Open Internet Order, were fought for and won by millions of people and organizations who took action by submitting comments to the FCC in support of strong rules protecting the Internet. ARL joined with other library and higher education organizations to submit principles, comments and reply comments pointing out the importance of net neutrality to our institutions and users. The FCC’s 2015 Open Internet Order provided clear rules, grounded in a strong legal basis, when it reclassified

All Internet users should be concerned about the FCC’s efforts to roll back net neutrality. Without strong rules to preserve an open Internet, service providers will have the ability and incentive to block, throttle, or engage in paid prioritization, drastically changing the character of the Internet from an even playing field to one in which only the wealthy can afford to have their content prioritized. Strong net neutrality rules are essential to protect online free speech and innovation.

You can take action by contacting the FCC and Congress, which can be done easily at Battle for the Net. The Internet should not be divided into “fast lanes” and “slow lanes.” It should remain open, so that all voices and content may have equal footing, rather than elevating only the voices of those who have the means and are willing to pay a premium.

Today’s Day of Action will harness the power of the Internet to make sure that ordinary Internet users can make their voices heard and a wide range of organizations will be participating, from library groups such as ALA and ARL, to civil society groups like Demand Progress and EFF, to social media sites like Twitter and Snapchat, to video hosting or streaming sites like Netflix and Vimeo, to journalism sites such as The Nation and Daily Kos, to companies like Amazon and Dropbox. A full list of participants is available on the Day of Action page.

Celebrating 20 Years of Internet Free Speech

Today marks the 20th anniversary of the Supreme Court of the United States’ decision in Reno v. ACLU, a case that determined that certain provisions of the Communication Decency Act (CDA) – which sought to govern speech online – violated the right to free speech. This decision was a landmark decision, the Court’s first about the Internet and applied the same freedom of speech rules for print to speech on the Internet (both of which are more open than TV or radio broadcasts).

The CDA was designed to protect children from “obscene or indecent” content. However, because of the breadth and vagueness of the provisions, the Court found that the CDA could also suppress speech to adults:

We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another.

The Court found that less restrictive alternatives could be used to achieve the same goal of reducing explicit content to children. The CDA, however, resulted in “an unnecessarily broad suppression of speech addressed to adults.”

Reno v. ACLU is a decision that gave us the Internet as we know it today. One that is free and open, a modern town square. Celebrating this landmark ruling brings to mind a number of related issues that are at the forefront of discussions today. While Reno v. ACLU gave us a ruling that established that freedom of speech applies online, we are still fighting for strong net neutrality rules that keeps the Internet open to all and does not favor one speech over another. While the Supreme Court’s Reno v. ACLU decision applied the same First Amendment protections to online speech as print, we are still fighting for reforms to the Electronic Communication Privacy Act to ensure that the same Fourth Amendment protections that apply to print apply to online communications.

Let’s celebrate 20 years of Reno v. ACLU, but remember that there is still work to be done to ensure that Constitutional rights apply with the same force in the digital world as it did in an analog one.

Updates on Court Cases on President Trump’s Travel Ban

Since the last ARL Policy Notes update on the Court Cases on Trump’s Travel Ban (March 16, 2017), two federal courts of appeals, the Ninth Circuit and the Fourth Circuit, have upheld the district court opinions enjoining enforcement of the Executive Order suspending entry into the United States for nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen (other than lawful permanent residents, visa holders or dual nationals). The district courts in Hawaii and Maryland found that the bans were unlawful because they were issued in order to disfavor a particular religion, pointing to Trump’s previous statements asserting his intent to issue a “Muslim ban.”

On May 24, 2017, the Fourth Circuit issued its opinion and, relying on previous statements made by Trump and his administration, found that the ban violated the Establishment Clause of the Constitution by disfavoring Muslims.  Whether the court would look to the extrinsic evidence of campaign and other statements as evidence of the Executive Order’s purpose was an open question; the Fourth Circuit unquestionably determines that they should in this particular case because there is a “substantial, specific connection between it and the challenged government action.”

In its decision upholding the injunction, the Fourth Circuit’s majority noted, “The evidence in the record, viewed from the standpoint of the reasonable observer, creates a compelling case that EO-2’s primary purpose is religious,” citing the many statements made by Trump as candidate and statements by his associates made around the time the executive orders were issued. The majority concludes:

These statements, taken together, provide direct, specific evidence of what motivated both EO-1 and EO-2: President Trump’s desire to exclude Muslims from the United States. The statements also reveal President Trump’s intended means of effectuating the ban: by targeting majority-Muslim nations instead of Muslims explicitly. And after courts enjoined EO-1, the statements show how President Trump attempted to preserve its core mission: by issuing EO-2—a “watered down” version with “the same basic policy outcomes.” J.A. 339. These statements are the exact type of “readily discoverable fact[s]” that we use in determining a government action’s primary purpose. McCreary, 545 U.S. at 862. They are explicit statements of purpose and are attributable either to President Trump directly or to his advisors. We need not probe anyone’s heart of hearts to discover the purpose of EO-2, for President Trump and his aides have explained it on numerous occasions and in no uncertain terms. See Glassroth v. Moore, 335 F.3d 1282, 1296 (11th Cir. 2003) . . . EO-2 cannot be read in isolation from the statements of planning and purpose that accompanied it, particularly in light of the sheer number of statements, their nearly singular source, and the close connection they draw between the proposed Muslim ban and EO-2 itself.

The Fourth Circuit similarly rejects the Administration’s argument that the Executive Order is warranted on national security grounds:

And EO-2’s text does little to bolster any national security rationale: the only examples it provides of immigrants born abroad and convicted of terrorism-related crimes in the United States include two Iraqis—Iraq is not a designated country in EO-2—and a Somalian refugee who entered the United States as a child and was radicalized here as an adult. EO-2, § 1(h). The Government’s asserted national security purpose is therefore no more convincing as applied to EO-2 than it was to EO-1.

Ultimately, the court concludes that because of the statements made leading up to the issuance of the two executive orders:

EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it. In light of this, we find that the reasonable observer would likely conclude that EO-2’s primary purpose is to exclude persons from the United States on the basis of their religious beliefs. We therefore find that EO-2 likely fails Lemon’s purpose prong in violation of the Establishment Clause.22 Accordingly, we hold that the district court did not err in concluding that Plaintiffs are likely to succeed on the merits of their Establishment Clause claim.

The Fourth Circuit noted that while courts generally try to avoid deciding a case based on constitutional grounds if it can be decided on statutory grounds, “the district court’s constitutional ruling was necessary to its decision, and review of that ruling is necessary to ours.”  Three judges dissented.

By contrast, while the Ninth Circuit reached the same end result when it released its opinion on June 12, 2017 — upholding a lower court’s decision to enjoin the enforcement of the travel ban — it explicitly declined to decide the case on constitutional grounds. Instead, the Ninth Circuit focused on a different legal basis for upholding the injunction: whether the Executive Order was valid under the Immigration and Nationality Act (INA).  The Ninth Circuit notes that courts should not issue “unnecessary constitutional rulings” and “we think it appropriate to turn first to the INA claim . . . we conclude that the Plaintiffs have shown a likelihood of success on the merits of that claim and that the district court’s preliminary injunction order can be affirmed in large part based on statutory grounds . . . we need not, and do not, reach the Establishment Clause claim to resolve this appeal.”  The decision by the Ninth Circuit was an unsigned, unanimous (per curiam) opinion.

The Ninth Circuit examines the INA and what powers Congress has delegated to the President.  The court notes that Section 1182(f) gives the President “broad authority to suspend the entry of aliens or classes of aliens” but “requires that the President find that the entry of a class of aliens into the United States would be detrimental to the interests of the United States.”  The opinion concludes that President Trump did not make sufficient findings, as required by the INA, that entry of nationals of these six designated countries (as well as entry of all refugees  in a separate section) “would be detrimental to the interests of the United States.”

Additionally, the Ninth Circuit points out that Congress does not permit nationality-based discrimination under the INA and:

We cannot blind ourselves to the fact that, for nationals of the six designated countries, EO2 is effectively a ban on the issuance of immigrant visas.  If allowed to stand, EO2 would bar issuance of visas based on nationality in violation of [Section] 1152(a)(1)(A) . . . the whole system of the visa issuance would grind to a halt for nationals of the six designated countries whose entry is barred from the United States.  Issuance of visas will automatically stop for those who are banned based on nationality.  Yet Congress could not have used “more explicit language” in “unambiguously direct[ing] that no nationality-based discrimination shall occur.”

The Ninth Circuit rejects the Government’s argument that the President could validly bar entry of individuals from the six designated countries because Section 1152(a)(1)(A) applies to the issuance of visas, noting “Under the Government’s argument, the President could circumvent the limitations . . . by permitting the issuance of visas to nationals of the six designated countries, but then deny them entry.  Congress could not have intended to permit the President to flout [Section] 1152(a) so easily.”  Additionally, quoting the brief of amici technology companies, the Ninth Circuit points out, “‘Congress could not have intended to prohibit discrimination at the embassy, but permit it at the airport gate.'”

In an interesting footnote, the Ninth Circuit also suggests that President Trump’s Twitter feed is an appropriate means to determine the purpose and rationale of the Executive Order.  Footnote 14 provides:

Indeed, the President recently confirmed his assessment that it is the ‘countries’ that are inherently dangerous, rather than the 180 million individual nationals of those countries who are barred from entry under the President’s “travel ban.”  See Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 6:20PM), https://twitter.com/realDonaldTrump/status/871899511525961728 (“That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!”) (emphasis in original); see also Elizabeth Landers, White House: Trump’s tweets are “official statements”, CNN (June 6, 2017, 4:37PM), http://www.cnn.com/2017/06/06/politics/trump-tweets-official-statements/ (reporting the White House Press Secretary’s confirmation that the President’s tweets are “considered official statements by the President of the United States”). We take judicial notice of President Trump’s statement as the veracity of this statement “can be accurately and readily determined from sources whose accuracy cannot reasonably be quested.” Fed. R. Evid. 201(b)(2).

It should be noted that in the various lawsuits regarding both the initial Executive Order and second Executive Order, often brought (in part) by state governments, standing was found for the states based on harms asserted by state universities.  The courts have acknowledged that colleges and universities have students, faculty, researchers, and staff who would be impacted by the executive orders.

Thirty-one colleges and universities — Boston University, Brandeis, Brown, Bucknell, Carnegie Mellon, Case Western, Columbia, Cornell, Dartmouth, Duke, Emory, George Washington, Georgetown, Harvard, Johns Hopkins, MIT, Middlebury, Northeastern, Northwestern, Princeton, Rice, Stanford, Tufts, University of Chicago, University of Michigan, University of Pennsylvania, University of Southern California, Vanderbilt, Washington University, Worcester Polytechnic Institute and Yale — filed amicus briefs in the Fourth and Ninth Circuits. The college and university amici note their interests:

Each amicus has a global mission and benefits from the contributions of diverse students, faculty, staff, and scholars from around the world.  Because amici seek to educate future world leaders, attract the world’s best scholars, faculty, and students, and work across international borders, they rely on their ability to welcome international students, faculty, and scholars into their communities. In light of their educational missions, amici have a strong interest in ensuring that individuals from around the globe can continue to enter the United States and share their unique skills and perspectives.

College and university amici point out that they have numerous students, faculty and scholars from countries outside the United States.  It provides data points from some of the amici.  For example, international students made up 16% of Columbia’s undergraduate population and 38.7% of its graduate population. Duke’s international students made up 10% of its undergraduate population and 47% of its graduate population. Rice’s figures were 12% and 39.5%, respectively.  The brief notes that 30% of its faculty appointees are international, and 50% of its academic professionals (including librarians, professional researchers, specialists, and postdoctoral fellows) and 50% of its visiting faculty and researchers are international. More than 40% of MIT’s faculty is international, while 10% of Yale’s faculty is international and 65% of its postdoctoral researchers are international.

Specifically, the brief also points to its international students, faculty and scholars from the six countries affected by the Executive Order:

For example, Princeton has more than 50 students and employees from the six affected countries, and its graduate school received approximately 150 applications for fall 2017 alone (and more than 700 applications in the past five years) from students from those nations. Brown has more than 20 students and scholars from the countries affected by the Order. Penn has three undergraduate students, 32 graduate and professional students, and two students admitted for the fall of 2017 from the countries covered by the Order. The University of Chicago has 23 students from Iran, as well as one student from Syria and a recent graduate from Syria who is employed under Optional Practical Training and University sponsorship. Northwestern is home to 45 students and 22 scholars from Iran, as well as two students from Syria, one from Sudan, and one from Yemen. Rice has 44 students and scholars from Iran alone. Carnegie Mellon has 31 students and 10 faculty and scholars from the six affected countries at its U.S. locations. And Duke currently has 37 individuals—enrolled as students or employed as postdoctoral fellows or faculty—from the countries affected by the Order. Harvard University counts 45 students and 63 scholars present on nonimmigrant visas from the six countries named in the Order, along with 77 dependents from those countries, and has admitted 23 students from the six countries for the fall of 2017. MIT counts 56 degree and non-degree students from the six countries identified in the Order. These are just a few of the universities where students, faculty, and scholars from the six affected countries make invaluable contributions to amici’s communities.

The brief appoints to great benefits international diversity provides to college campuses, “promot[ing] the free exchange of ideas, encouraging individuals to consider issues from different perspectives and giving students and faculty a greater understanding of our global, pluralistic society.”  It cites the Supreme Court’s decision in Fisher v. University of Texas, which “held that universities have a compelling interest in obtaining the ‘educational benefits that flow from student body diversity.”  

Additionally, the brief notes that enrollment and employment of international individuals adds great value to the United States.  Amici point to an estimate that “international students directly contributed $32.8 billion to the United States economy and supported or contributed to the creation of 400,000 American jobs in the 2015-16 academic year.” Another study “found that more than one third of United States innovators were born outside the country , and another ten percent have at least one foreign-born parent.”

The brief also points to the great achievements, including by those from the six designated countries:

The benefits from international students, faculty, and scholars at American universities are not just economic. As noted above, these individuals make significant discoveries and contributions in their fields. Since 2000, forty percent of all American Nobel prize winners in Chemistry, Medicine, and Physics have been immigrants—and in 2016, all six American winners of the Nobel Prize in economics and scientific fields were immigrants. These awards “represent great individual achievement but also reflect the state of research, openness and scientific advancement within [American] society.” Amici have seen these successes up close. For example, in 2014, Maryam Mirzakhani was the first woman to win the Fields Medal, known as the “Nobel Prize of Mathematics.” Mirzakhani grew up in Iran before earning her Ph.D. at Harvard and becoming a professor at Princeton and then Stanford. Professor Muawia Barazangi came to the United States from Syria for graduate study after earning his undergraduate degree from the University of Damascus; he earned a Ph.D. from Columbia before joining the faculty at Cornell, where he became a United States citizen and had a long and distinguished research and teaching career in the field of Earth Sciences. Syrian-born Dina Katabi, a professor at MIT, came to the United States for graduate study at MIT, and has since won a Macarthur “Genius” grant for her work on improving wireless network efficiency and security. Carnegie Mellon’s current President, Subra Suresh, is an immigrant (as was its founder, Andrew Carnegie); President Suresh came to the United States “at age 21 with a partially filled suitcase, less than $100 in cash, and a one-way airplane ticket purchased with a loan.” President Suresh went on to study at several United States universities, to join the faculty at Brown and the Massachusetts Institute of Technology, and, before joining Carnegie Mellon, to be nominated by the President and unanimously confirmed by the Senate as the Director of the National Science Foundation. (citations omitted)

Other distinguished alumni or former faculty and researchers “return to their home countries with a deeper understanding of and appreciation for the United States and its values . . . [or] become leaders in their home countries.”

The brief states that the Executive Order harms amici’s students, faculty and scholars because it “divides current students and their families, impairs the ability of American universities to draw the finest international talent, and inhibits the free exchange of ideas.” In addition to harming prospective and current students, faculty and researchers, the Executive Order

will impede successful academic collaboration in the United States.  American universities host thousands of conferences and symposia each year.  These academic meetings are incubators for innovation and thrive on the free flow of information and ideas . . . international universities have observed that the Executive Order and its predecessor will impede collaborative partnerships with American Universities.  And these effects are already being felt. For example, the University of Pennsylvania had planned to invite three Iranian human rights activists to a conference in March, but with the Executive Order in effect, their participation would be barred. Similarly, a faculty member at Dartmouth planning a conference for next fall has expressed concern that participants may not be able or willing to travel to the United States, and one keynote speaker has wondered whether it “sends the wrong message” to attend a conference in the United States at this time. Participants in a conference at the Harvard Center for Middle Eastern Studies are voluntarily withdrawing due to current United States immigration policies or perceptions thereof. The Sharmin & Bijan Mossavar Rahmani Center for Iran and Persian Gulf Studies at Princeton expressly aims to advance understanding of Iran and the Persian Gulf; if the Center cannot invite Iranian guest speakers, the Center obviously will be impeded in serving its mission.

What is more, faculty members from around the world already have called for a boycott of academic conferences in the United States in response to the Executive Order and its predecessor. A petition circulating online has drawn thousands of signatures from scholars in the United States and abroad pledging not to attend international conferences in the United States while the travel ban persists; it continues to garner new signatures under the revised Executive Order. Thus, the Executive Order threatens collaboration well beyond scholars from and institutions in the six affected countries.

The Trump Administration has already asked the Supreme Court to review the case. Should the Supreme Court agree to hear the case (and there is no indication thus far whether it will so), it would likely not hear oral arguments until after the fall term begins in October.

Drinking our own champagne: a toast to the success of LISSA!

*This is a guest blog post by Judy Ruttenberg,Program Director at the Association of Research Libraries and the co-director of SHARE. She serves on the SocArXiv Steering Committee and the OSF Preprints Advisory Board*

In early May, a group of information professionals and leaders announced the launch of the LIS Scholarship Archive, or LISSA. Co-directed by April Hathcock and Vicky Steeves (NYU Libraries), LISSA joins a growing list of scholarly communities building open “preprint” services in partnership with the Center for Open Science (COS) and using COS’s flagship product, the Open Science Framework (OSF), as a platform. LISSA’s mission is more expansive than open preprint publishing, however. It acknowledges that LIS professionals produce a wide range of scholarly materials worthy of preservation, open dissemination, and community evaluation. Here’s where the OSF is a terrific platform: when a paper is deposited in an OSF Preprints service, an OSF project is automatically created, with all the collaborative tools, versioning, storage, file-rendering, and other features supporting the scholarly life cycle.

That LISSA enters an active space—including a spate of arXiv descendants in social science, psychology, engineering, agriculture, paleontology and more—doesn’t diminish the unique opportunity that the library and archives community now has to “drink our own champagne” and embrace rapid, open publication, and retool tenure and promotion processes in our own organizations so that they recognize open scholarship deposited in LISSA.

Tenure and promotion committees within academic libraries will doubtless ask the same questions our colleagues throughout academia have asked us as librarians have advocated for open access: What is the role of peer evaluation and review in an OA model? How will I know the work is good work? What new metrics can I use to understand the impact of non-traditional publications? With the groundswell of interest in preprints across many disciplines, and an open source, public goods technology partner (COS) building the infrastructure, we in LIS organizations can work with LISSA (in parallel with other disciplines and services) to participate in building new, mission-aligned editorial and review processes that support this public good.

Having created a basic service—OSF Preprints—and its hosted, branded communities (SocArXiv, PsyArXiv, etc.), COS is now working on the critical features of moderation and evaluation, or peer review. You can see their public requirements and roadmap on the OSF Preprints page. To see this community infrastructure catch up to our policy and advocacy for open scholarship is incredibly exciting, and I hope academic libraries as individuals and as organizations see both opportunity in, and responsibility for, LISSA’s success by working through the hard issues of the moderation and evaluation of our own work.

So, a toast to LISSA! If you need a reviewer, you can find me at judy@arl.org.