Can’t Get Away From Fair Use

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

*This is a guest blog post by Jonathan Band, policybandwidth*

Copyright owners accuse library advocates of having fair use on the brain, but the truth is that we just can’t get away from fair use. Over Presidents’ Day Weekend, I saw the touring production of Something Rotten with my son at the National Theatre in Washington DC. I knew nothing about the show before I went, other than that my wife thought I would love it, even though I don’t care for musicals; and that the title was an allusion to the line in Shakespeare’s Hamlet that “Something is rotten in the State of Denmark.”

Well I did love it, and not only because it was very entertaining. It also demonstrated the importance of the fair use and the public domain to new creative expression. The show concerns the efforts of two brothers in London in the 1590s struggling to compete with the popularity of William Shakespeare. Desperate to find an idea for a new play, one brother consults a soothsayer to learn what sorts of plays would be popular in the future, and what would be the subject of Shakespeare’s next hit. The soothsayer informs him that audiences will love musicals, and that Shakespeare’s next play will involve eggs, ghosts, and danish.

The brother is skeptical about the concept of musicals—why would actors suddenly start to sing? This skepticism leads to an eight-minute song that contains lyrics, melodies, and visual references to at least twenty musicals, including Avenue Q, The Fantasticks, Les Miserables, Fascinating Rhythm, West Side Story, Music Man, Seussical, South Pacific, Chicago, Evita, Rent, Jesus Christ Superstar, Sunday in the Park with George, Annie, Guys & Dolls, Sweet Charity, Hello Dolly, Cats, Sweeny Todd, and A Chorus Line. The musical the brothers ultimately produce (Omlette: the Musical) contains lines or melodies from Fiddler on the Roof, The Producers, Phantom of the Opera, Sound of Music, Mary Poppins, and Oklahoma.

Moreover, Something Rotten contains numerous quotations and characters from Hamlet, Romeo and Juliet, The Merchant of Venice, A Midsummer Night’s Dream, and Henry IV.

In short, without fair use and copyright term, Something Rotten could not have been created and produced. And it wasn’t exactly a fringe production. It had a run of 742 performances on Broadway, and it was nominated for ten Tony Awards. The actor who played Shakespeare, Christian Borle, won the Tony for best featured actor in a musical.

Existing expression is the raw material for new expression. And for new expression to be fresh and topical, authors must be able to use works more recent than Shakespeare’s.

Fair Use/Fair Dealing Week 2018: Day 3 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 3 of Fair Use/Fair Dealing Week 2018! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Blog Posts:

Authors Alliance, “Newly Updated: Fair Use FAQ

Brandon Butler on SPARC, “For Text and Data Mining, Fair Use is Powerful, but Possession Is Still 9/10 of the Law

CMSi blog, “Fair Use Question of the Month: Fair Use & YouTube

Rachel Cole on Northwestern Libraries Blog, “Fair Play: Coloring Books and Copyright

Charles Duan on R Street Institute, “The Creative Side of R Street

Michael Geist, “Why Fair Dealing Safeguards Freedom of Expression: The Case of the Vancouver Aquarium

Melanie Johnson on UK Copyright Literacy, “Flexible and Adaptable: the Future of Copyright in Australia

Ruth Lewis on Washington University in St. Louis University Libraries, “Fair Use Week Links

Colleen Lyon on Open Access at UT, “Fair Use Best Practices

Marlo MacKay on The LibVine, “Fair Dealing Week: Faculty & Fair Dealing”

Pennsylvania Library Association College and Research Division Blog, “Happy Fair Use Week

University of Manitoba Health Libraries, “CFLA/FCAB Position Statement on Fair Dealing

Fair Use/Fair Dealing Week 2018: Day 2 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 2 of Fair Use/Fair Dealing Week 2018! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Podcasts:

ReCreate: Copy This Podcast Episode 12: Copying is Human Nature

Blog Posts:

Rachel Appel and Gabriel Galson on Scholarly Communication @ Temple, “The Importance of Fair Use and Standardized Rights Statements for Digital Cultural Heritage Institutions” cross-posted to PA Digital

Ashland University Library News, “Fair Use Week: Infographic

Jonathan Band on Disruptive Competition Project, “The Second Circuit’s Fair and Balanced Fair Use Decision in Fox News v. TVEyes

Krista Cox on Copyright at Harvard Library, “Day 2: Fair Use and User Generated Content” cross-posted to ARL Policy Notes.

Lael Ensor-Bennett on The Sheridan Libraries Blog, “Celebrate Fair Use Week . . . With Images!

Tyler Garling on The Taper, “Guest Blog: Student Remixer Tyler Garling on the Cultural Shift (Back) Toward Sharing

Michael Geist, “Why Far Dealing Benefits Creators: The Case of a Room Full of Spoons

Anne Gillaland on University of North Carolina Scholarly Communications Office Intersections, “What Does it Mean to Be Transformative

Julie Grob on UH Libraries News, “Fair Use Week: Drake’s Sampling Ruled Transformative

Ariel Katz, “Debunking the Fair Use vs. Fair Dealing Myth: Have We Had Fair Use All Along?”

Amanda Levendowski on Authors Alliance, “Fair Use for Fairer AI

Stephanie Lewin-Lane on UH Libraries News, “Fair Use Week: Preservation Copies of Sound Recordings

Colleen Lyon on Open Access at UT, “Fair Use for Nonfiction Authors

Marlo MacKay on The LibVine, “Fair Dealing Week: Fair Dealing, Myths & Facts

Emily O’Connell on the CMSi blog, “Rethinking Fair Use: Rebekah Modrak and the Art of Creative Critique

Emily O’Connell on the CMSi blog, “Happy Fair Use Week! And Where to Find the Good Stuff

University of Manitoba, “Be fair in using copyrighted materials! The University recognizes Fair Dealing Week

Fair Use and User Generated Content

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.

*Cross-posted from Copyright at Harvard Library*

In keeping with tradition, ARL has released a new infographic in celebration of Fair Use/Fair Dealing Week.  While I’m a big fan of all of our past infographics (Fair Use FundamentalsFair Use in the Day in the Life of College Student and Fair Use Myths and Facts), here’s what I love about this year’s infographic, Fair Use Promotes the Creation of New Knowledge: it reminds us that fair use isn’t just about someone using existing information, but about relying on it for new creations. Fair use facilitates all types of new knowledge, from news reporting to the creation of innovative technological products, to scholarship.

Screenshot 2018-02-25 19.08.46

In the digital environment, in particular, creating new high-quality content and disseminating it widely has become easier.  User-generated content is highly popular and often relies on fair use.  While the Fair Use Promotes the Creation of New Knowledgeinfographic contains several different examples of the type of new information and culture that fair use enables, I want to highlight some great examples of user-generated content, such as fan fiction, remix songs and mashup videos.

One of my favorite examples is this video by Movie Remixer on Youtube which mashes up 66 movie dance scenes from 60 different movies with Justin Timberlake’s 2016 song, “Can’t Stop the Feeling.”  The clips are from a very diverse set of movies, ranging from old musicals like Singin’ in the Rain and the King and I, to classics like The Red Shoes and Babes in Arms, to more recent Academy Award Best Picture Winners like Slumdog Millionaire and Silver Linings Playbook, to 1990s comedies like Mrs. Doubtfire and The Mask.  The mashup is highly creative and what I found to be particularly impressive was that it uses so many movies that have nothing to do with dancing and that the user/creator didn’t speed or slow down any of the clips to fit the rhythm of the song.

Here’s another excellent mashup, entitled “Mean Disney Girls,” which uses dialogue from the 2004 movie Mean Girls and merges it with clips featuring Disney princesses from CinderellaSleeping BeautyThe Little Mermaid and others.  In an example of mashups that go viral, this video has more than 13 million views on YouTube.

User generated content is so popular on YouTube that back in 2015, a Google blog post noted that, “More than 400 hours of video are uploaded to YouTube every minute,” including videos relying on fair use.  Because content on the web is often the subject of DMCA takedowns, even if the work is fair use, that same blog post announced:

YouTube will now protect some of the best examples of fair use on YouTube by agreeing to defend them in court if necessary.  We are offering legal support to a handful of videos that we believe represent clear fair uses which have been subject to DMCA takedowns.  With approval of the video creators, we’ll keep the videos live on YouTube in the U.S., feature them in the YouTube Copyright Center as strong examples of fair use, and cover the cost of any copyright lawsuits brought against them.

While the Ninth Circuit has found that copyright holders must consider fair use in issuing takedown notices in Lenz v. Universal Music Corp., also known as the “dancing baby” case, with automated takedown notices being issued by corporate rightholders, this many not always be the case.

This year, during Fair Use/Fair Dealing Week, I’m celebrating all of the great new works we benefit from thanks to fair use.

Fair Use/Fair Dealing Week 2018: 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 2018! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Resources:

Infographic: Fair Use Promotes the Creation of New Knowledge

Infographic: Fair Dealing in Canada Myths & Facts/Fair Dealing in Education Myths & Facts

Fair Dealing Testimonials on Fair Dealing Canada 

Videos:

University of Winnipeg Library, “Fair Dealing Week

Contests:

University of Waterloo, Create-your-own-meme contest

Blog Posts:

Stan Adams on Center for Democracy and Technology Blog, “I Didn’t Write This Conversation About Fair Use

Berkman Klein Center for Internet & Society, “Fair Use/Fair Dealing Week – Week of Feb 26, 2018!

Hallie Brodie on The Quad, “Consider This: Fair Dealing Under Review

Jonathan Band on ARL Policy Notes, “Balanced Copyright in CPTPP and NAFTA

Brandon Butler on The Taper, “Fair Use Week 2018 Kickoff: Getting Ready for ‘The State of the Remix @UVA’ by Revisiting the Renaissance

Carnegie Mellon University Libraries, “Fair Use Week 2018

Canadian Association of Research Libraries, “CARL Launches Expanded Website and Social Media Campaign for Fair Dealing Week 2018” cross posted on the Quebec Library Association

Jessica Clark on George Mason University Libraries News, “Fair Use/Fair Dealing Week 2018

Krista Cox on ARL Policy Notes, “Fair Use Promotes Creation of New Knowledge

Katherine Dunn on MIT Libraries News & Events, “Happy Fair Use Week 2018

Lael Ensor-Bennet on The Sheridan Libraries Blog, “Celebrate Fair Use Week . . . With Images!

Vince Frieden on Miami University Libraries Blog, “University Libraries Recognize Fair Use Week Feb. 26- March 2

Christine Fruin on ATLA Newsletter, “The SCOOP: Fair Use Week

Michael Geist, “Fair Dealing Fake News: When Seeking a Refund Arising from Copyright Over-Payments Becomes a ‘Legal Attack on Writers’

Anne Gilliland on University of North Carolina Scholarly Communications Office Intersections, “Fair Use Week 2018: Creation and Communication in the Academy”

Teresa Hackett on the EIFL blog, “EIFL Celebrates Fair Use/Fair Dealing Week

Harvard Library, “Fair Use Week Returns

Library at Bryant University, “‘Fair Use/Fair Dealing Week’ Starts Now! How Can You Participate?

Colleen Lyon on Open Access at UT Austin, “It’s Fair Use Week!

Marlo MacKay on The Libvine, “Fair Dealing Week: What Is Fair Dealing?”

Matthew on In the Know @ the Bentley Library, “Celebrate Fair Use Week

MIT Libraries Scholarly Publishing, “Spotlight: Happy Fair Use Week 2018

Emily O’Connell on the CMSi blog, “Fair Use in Film Courses: Broderick Fox on Empowering Creators

Meera Nair on Fair Duty, “Fair Dealing Week 2018

New Media Rights, “Fair Use Week 2018 Reminds Us Why Fair Use is Worth Protecting

Judy Rabinowitz on What’s New @HHSL, “And now, in honor of Fair Use Week, a poem

Charlotte Roh on Gleeson Gleanings, “Fan Fiction and Fair Use/Fair Dealing Week 2018

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

Simon Fraser University Library, “Happy Fair Dealing Week!

University of Lethbridge, “Fair Dealing Week, February 26-March 2, 2018

Jane Thaler and Melissa Cantrell on University of Colorado Boulder, “A ‘Fair’ to Remember

Visual Resources Association, “Boon or Bane? The Four Fair Use Factors vs. The 10% Rule

Timothy Vollmer in InfoJustice, “’Free Trade’ Agreements Would Be More Fair With Fair Use at Their Core

Balanced Copyright in CPTPP and NAFTA

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

*This is a guest blog post by Jonathan Band, policybandwidth*

The “balanced copyright” provision of the original Trans-Pacific Partnership (“TPP”) Agreement has been included in the successor agreement, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”), negotiated by the remaining TPP parties after the United States pulled out of the TPP. However, it appears that the U.S. government is opposing the provision’s inclusion in the North American Free Trade Agreement (“NAFTA”), currently under renegotiation. This is ironic given that the United States originally proposed inclusion of the provision, based on the U.S. fair use doctrine, in TPP. Thus, the eleven parties to the CPTPP now appear more dedicated to a U.S. legal principle than the United States itself.

TPP

Article 18.66 of the IP chapter of the TPP required each party to “endeavor to achieve an appropriate balance in its copyright and related rights systems.” This balance was to be achieved by means of limitations and exceptions that gave “due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired, or otherwise disabled.”

The United States originally proposed this language during the July 2012 round of TPP negotiations in San Diego, CA. (See here for more detailed discussion of the development of Article 18.66.) The provision’s list of legitimate purposes was based on the list of purposes in 17 U.S.C. 107, which codifies the fair use doctrine. The U.S. explained that “[t]hese principles are critical aspects of the U.S. copyright system, and appear in both our law and jurisprudence. The balance sought by the U.S. TPP proposal recognizes and promotes respect for the important interests of individuals, businesses, and institutions who rely on appropriate exceptions and limitations in the TPP region.”

Twelve countries, including the United States, signed the TPP on February 4, 2016. On January 23, 2017, the day after his inauguration, President Trump withdrew from the TPP, which had not yet come into effect.

CPTPP

The remaining eleven TPP parties—Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam–agreed on a revised TPP on January 23, 2018. The new agreement, named the CPTPP, is largely the same as the TPP, except that the parties decided to suspend 20 provisions that had been demanded by the United States in the TPP. With respect to copyright, the parties suspended the provisions relating to copyright term, circumvention of technological protection measures, and safe harbors for Internet service providers. Significantly, the parties did not suspend the balanced copyright provision, even though it had originally been proposed by the United States. Thus, the eleven CPTPP countries have obligated themselves the endeavor to achieve an appropriate balance in the copyright systems.

NAFTA

Once President Trump announced that the United States would renegotiate NAFTA, it was assumed that the United States would use the TPP IP chapter as the template for the new NAFTA IP chapter since Mexico, Canada, and the United States had already agreed to that language in TPP and the TPP IP chapter reflected so many of the U.S. demands. Nonetheless, the copyright industries launched a lobbying campaign against incorporation of the “balanced copyright” and ISP safe harbor provisions.

The Copyright Alliance, for example, asserted that while it “believe[s] in a ‘balanced’ copyright system,” the “concept of ‘balance’ is actively being twisted and used as a vehicle for weakening copyright protections….” For this reason, it is “skeptical about including this type of language in a trade agreement.” Similarly, the Recording Industry Association of America (“RIAA”) argued that “efforts to export the American fair use exception are particularly troubling.” Accordingly, RIAA believed that the United States should not support “broad provisions that could diminish, or otherwise generate legal uncertainty with respect to, the three-step test.”

However, there is no evidence that the concept of balance is being twisted or that the export of fair use would lead to uncertainty or the weakening of copyright protection in a troubling manner. The example of Israel is instructive. Israel adopted a fair use provisions similar to 17 U.S.C. 107 in 2007. Since then, Israeli courts have applied fair use stringently. They have imposed a fifth factor not included in the statute: the defendant must provide attribution to the author. Moreover, Israeli courts have found fair use at a lower rate than U.S. courts. Thus, the Israeli courts’ implementation of fair use demonstrates that U.S. copyright owners have nothing to fear from the export of fair use. In any event, TPP article 18.66 does not require adoption of a fair use provision; it simply imposes an obligation to endeavor to achieve balance.

Balance as a Traditional Contour of U.S. Copyright Law

An even more unreasonable objection to a balanced copyright provision in NAFTA appeared in a letter to U.S. Trade Representative Robert Lighthizer, by twenty-five conservative organizations. These groups, which have no knowledge of the copyright system, urged the USTR “to reject calls for NAFTA to include ‘users’ rights,’ which was manifested in the Obama-era concept of copyright ‘balance.’”

Contrary to the letter’s suggestion, copyright balance is not an “Obama-era” concept. Rather, it is a principle the U.S. Supreme Court and courts of appeals articulated repeatedly long before the Obama Administration.

Thus, the Supreme Court in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989), observed that the Constitution’s intellectual property clause “itself reflects a balance between the need to encourage innovation and the avoidance of monopolies which stifle competition without any concomitant advance in the ‘Progress of Science and useful Arts.’”

In Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984), the Supreme Court stated that “Congress has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or inventors in order to give the public appropriate access to their work product…[T]his task involves a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other….”

In Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 928 (2005), the Supreme Court recognized that the copyright law maintained a “balance between the respective values of supporting creative pursuits through copyright protection and promoting innovation in new communication technologies by limiting the incidence of liability for copyright infringement.” The Court noted that “[t]he more artistic protection is favored, the more technological innovation may be discouraged; the administration of copyright law is an exercise in managing the trade-off.” Id.

The federal courts of appeals likewise have recognized the concept of copyright balance. The Second Circuit stated that “the copyright law seeks to establish a delicate equilibrium. On the one hand, it affords protection to authors as an incentive to create, and, on the other hand, it must appropriately limit the extent of that protection so as to avoid the effects of monopolistic stagnation.” Computer Assocs. Int’l, Inc., v. Altai, Inc., 982 F.2d 693, 696 (2d Cir. 1992).

Similarly, the Fifth Circuit wrote that in the Copyright Act “Congress balanced the competing concerns of providing incentive to authors to create and of fostering competition in such creativity.” Kern River Gas Transmission Co. v. Coastal Corp., 899 F.2d 1458, 1463 (5th Cir. 1990).

The Federal Circuit, referring to the Digital Millennium Copyright Act, a statute criticized in the December 18 letter, noted that in enacting the DMCA, “Congress attempted to balance the legitimate interests of copyright owners with those of consumers of copyrighted products.” Chamberlain Group v. Skylink Tech., Inc., 381 F.3d 1178, 1203 (Fed. Cir. 2004). The court observed that under the plaintiff’s interpretation, which would have “eliminated all balance and granted copyright owners carte blanche authority to preclude all use, Congressional intent would remain unrealized.” Id.

It is curious that a group of conservative organizations would disparage users’ rights in favor of what the Supreme Court has described as a government granted monopoly. It is even more curious that these organizations would suggest that exceptions and limitations such as fair use “should be contracting, not expanding, in the digital age.” After all, the Supreme Court in Eldred v. Ashcroft, 537 U.S. 186, 219 (2003), explained that fair use is one of the “traditional contours of copyright protection that acts as “a built-in First Amendment accommodation[].” Surely these groups support the First Amendment—and that is what the concept of balanced copyright is all about.

Fair Use Promotes Creation of New Knowledge

Happy Fair Use/Fair Dealing Week!

To celebrate Fair Use Week 2018, ARL has released a new infographic in keeping with the tradition of releasing a new fair use infographic each year. While we often celebrate fair use in terms of the ways in which a user relies on existing information (such as the 2016 infographic, Fair Use in a Day in the Life of a College Student), this year we’re celebrating how fair use  contributes to the creation of new knowledge.

For example, fair use promotes:

  • More accurate news reporting
  • Creation of innovative products, such as searchable databases
  • New art, including appropriation art
  • New content, such as user-generated content like fan fiction, remix songs and mash-up videos
  • Better documentary information, including in films or websites
  • Innovative ways to share information
  • New interoperable software, made possible through reverse engineering
  • Contributions to new scholarship

Screenshot 2018-02-25 19.08.46

This year’s infographic, Fair Use Promotes the Creation of New Knowledge is available here, along with infographics from previous years. You can also check out lots of great content and resources on the Fair Use/Fair Dealing Week website.

Springer, Censorship and the Need for Open Access

OG-CopyrightWeek2

*Updated January 22, 2017 to include a statement by Sarah Thomas, Vice President for the Harvard Library and University Librarian*

It’s Copyright Week! Today’s topic is “Copyright and Censorship: Freedom of expression is a fundamental human right essential to a functioning democracy. Copyright should encourage more speech, not act a legal cudgel to silence it.”

When a rightsholder uses his or her rights to prevent others from relying on, accessing, or using information, copyright can act as a tool of censorship. One example of where this happened occurred in November 2017 when Springer Nature agreed to exclude Chinese readers and institutions from accessing certain articles in its journals at the request of the Chinese government. Regardless of whether Springer acted in good faith in order to maintain access in China to the rest of its collection, because authors collectively relinquished control over their copyrights there was no effective remedy. We are familiar with the problem of authors assigning rights to corporate entities, which may be more inclined to aggressively enforce their rights under copyright law or demand high fees in order to access or use the work. In the Springer case, because of copyright, authors could not promote access to their work because the publisher acquiesced to a government’s censorship demands.

According to The Financial Times, Springer blocked an estimated 1,000 articles its journal, International Politics and the Journal of Chinese Political Science, effectively aiding China’s censorship request. This decision by Springer followed a similar August 2017 action by Cambridge University Press to block access to 315 articles at the request of the Chinese government, though Cambridge University Press later reinstated the articles after heavy criticism, citing the desire to “uphold the principle of academic freedom.” Other university presses, such as Oxford University Press, MIT Press and the University of Chicago Press have stated that they will not comply with censorship demands.

Ultimately, censorship directly harms research, scholarship and academic freedom. In the digital age, global collaboration is commonplace and Chinese students and researchers are at a significant disadvantage without access to the full corpus of works that researchers in other countries have. Research institutions should work to support barrier free access to information to combat censorship.

Springer’s decision to censor 1,000 articles illustrates that, as a for-profit institution, its goals may not align with those of academic institutions and highlights the necessity for higher education to regain control over scholarly communication. Working with publishers that agree to censor materials raises questions regarding threats to academic freedom, research and discovery.

Authors should carefully consider whether assigning their copyright to publishers is in their best interests knowing that, in addition to the ability for publishers to impose high costs to read articles, these entities may comply with requests that prevent readers in other countries from having access to these works.

Ultimately, copyright and licensing issues have serious consequences for the research community. Ensuring that the research community can retain control over its scholarly communication outputs will promote barrier free access too all. Publishing in open access outlets, including in preprint services, or retaining copyright can help ensure that selective censorship is more difficult.

Statement of Sarah Thomas, Vice President of Harvard Library and University of Librarian:

I’m astonished that Springer Nature has not used their important leverage as a content provider to protect the rights of their authors to be read and to exercise their professional leadership in promoting access to knowledge. Censorship is the suppression of ideas, and is directly opposed to Springer Nature’s stated policy: “Our publishing and editorial policies have been developed in consultation with the research communities we serve, including authors and librarians, and are rooted in belief that scholarly communication is aided by greater transparency of the processes by which we operate.”

Springer Nature proudly proclaims on their home page: “We advance discovery by publishing robust and insightful research, supporting the development of new areas of knowledge and making ideas and knowledge accessible around the world.” Apparently this statement is a qualified one, subject to governmental influence and balanced by commercial considerations.

Certainly I will work at Harvard to increase awareness of Springer Nature’s complicity in the silencing of scholars who write for their journals. In a world in which basic democratic values are increasing threatened by authoritarian leaders, it is shocking that the Von Holtzbrinck-owned publisher Springer Nature would contribute to their decay. Is this the work of new CEO Daniel Ropers, who comes out of retailing?

I urge Springer Nature to show the commitment to the “advancement of science, learning, and society” that Ropers espoused when joining Springer Nature in autumn 2017 and to look to publishers such as Cambridge University Press as a model.

Will Dicta from Impression Products v. Lexmark Lead to the Ability to Control Your Own Devices?

OG-CopyrightWeek2

Today we’re celebrating Copyright Week! Today’s topic is “Controlling Your Own Devices: As software-enabled devices become ubiquitous, so do onerous licensing agreements and technological restrictions. If you buy something, you should be able to truly own it – meaning you can learn how it works, repair it, remove unwanted features, or tinker with it to make it work in a new way.”

Due to an ambiguity in the text of the Digital Millennium Copyright Act (DMCA), the anti-circumvention provisions can be read to make the very act of circumvention of a technological protection measure (TPM), or “digital lock,” an infringement of copyright — even if there is no underlying copyright violation. While logic would suggest that there is a violation only if the circumvention is being used to infringe copyright, some courts have held otherwise. As a result, circumventing TPMs can be risky, even if the user is simply trying to engage in a fair use, which would be completely permissible in the analog world.

The Supreme Court has never ruled on this ambiguity, but a case decided at the end of its term last year involving exhaustion of rights in a patent case, included some dicta that seemed to favor the ability of individuals to repair the items they own. In Impression Products v. Lexmark International, the Court found in favor of international exhaustion of rights, finding that a patent holder cannot enforce contractual restrictions on downstream sales in patent infringement cases.

While issues regarding TPMs and anticircumvention were not raised in the case, as a policy matter, the majority opinion detailed the dangers that would occur without exhaustion and used the right to repair as an example:

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

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

While the use of embedded software continues to proliferate in our everyday household objects, a common sense approach must be adopted to ensure that we can repair objects we’ve purchased in the same way a consumer would have been free to repair his car, toaster or washing machine in an era before “smart” technology.

The Coming Vote on Network Neutrality

 

*This post was written by Christopher Libertelli and Krista Cox*

It is hard to avoid the press coverage of the coming vote to reverse Obama-era Network Neutrality policies. In the long-sweep of history, this vote will mark an important milestone in a government proceeding that is almost 20 years old.  

During the last six months, ARL has engaged independently on the details of Chairman Pai’s proposal. Sadly, we found little openness to exploring safeguards developed by ARL and our higher-education coalition partners that were any different than those initially proposed by Chairman Pai. We could spill a lot of ink discussing what that closure means for the deliberative model at the FCC specifically and in government generally. Suffice it to say that the lack of openness to evaluate other policy models like those proposed by ARL frustrated the pro-Net Neutrality coalition’s ability to reverse Chairman Pai’s proposed changes. At times, the proceeding felt like it had an anti-intellectual quality to it as policymakers at the FCC and in Congress pre-determined the outcome, without the benefit of public comment. Thus, we are expecting a fairly radical, categorical reversal of the 2015 Network Neutrality rules, transferring regulatory oversight over ISPs to the FTC and preserving only whatever government authority exists in such an environment. State regulatory authority will be preempted and federal regulators will be left enforcing a scaled back transparency rule that requires certain basic disclosures to ISP consumers.

The policymaking process now shifts to the courts. Because Chairman Pai is proposing a novel statutory interpretation of the Communications Act, there is inherent risk to sustaining the Order in the courts. That said, the FCC leadership understands this and has tried to improve its chances of prevailing on appeal. One of the more interesting aspects of the appeal will be whether Chairman Pai’s refusal to undertake a serious review of the ‘fake’ comments in the docket creates appellate risk under the Administrative Procedures Act. If the Courts of Appeals takes up that issue, it could establish new administrative law to address a world where more and more citizens are using the Internet to file comments and express their views to government officials. If we were pressed to estimate the odds that Chairman Pai’s Order we think it is probably unlikely to be sustained on appeal. If the Order lands in the DC Circuit, the odds of the government prevailing go down given that the DC Circuit upheld the 2015 Open Internet Order. If the Order lands in a circuit other than the DC Circuit, the odds of the government sustaining its Order increase as the weight of the record from the 2015 case would be less significant.

What does all of this regulatory back and forth and policy churn mean for research libraries?  We think it means at least three things:

  1. The policymaking process does not end with an FCC vote or a Congressional action and Presidential signature. It ends with a final judicial decision on the merits, by the highest court willing to hear the case. Consistent with past practice, ARL expects to participate, along with other allies, in whichever appellate court hears the appeal;
  2. It is entirely possible that ISPs will test their newfound regulatory freedom by introducing new products into the marketplace. Paid fast lanes, Quality of Service guarantees or other differentiated products that differ from a well-defined “Internet access” product could be offered to consumers. Before that happens and all things being equal, if a Member purchasing from a public network provider has the opportunity to renegotiate the terms of its relationship with its ISP, it would be better to do that sooner rather than later as the chances of these products proliferating only increase over time;
  3. The coming court case may well kick off a parallel effort in Congress to rewrite the Communications Act in such a way to enshrine a new version of network neutrality into law. While we are skeptical that such a process will yield great value for our Members, we are watching this possibility closely and will participate in a way that preserves our Member’s unique voice in this debate.

Over the last few months, we have reflected upon a message that Commissioner Rosenworcel delivered to us when we met with her at the FCC. She discussed with us the need for fresh voices to reinvigorate a debate that is too often described as a battle between the rich (big ISPs) and the wealthy (big Internet companies). We are more and more convinced that ARL has an important role to play in this proceeding however it evolves. In various ways, the federal government appears to be undermining and reversing investments in basic science and research. We think of the reversal of the FCC’s Network Neutrality rules as part of that broader effort. However, even if the broader political context may be hostile to ARL’s interests, we are even more convinced of the value of open network policies that support ubiquitous access to the Internet whether you are a library patron logging on to one of our larger institutions or whether you are a researcher in the field using a wireless broadband connection to capture cutting edge research findings.  

Finally, it is worth remembering that all is not lost in this temporary moment of policy reversal. The Canadian Radio-Television and Telecommunications Commission has a robust Network Neutrality framework in place to protect our Canadian Member’s interests. It may take another step (or even a few more steps) in the policymaking process; but we leave you with the hope that someday soon, US authorities will see the wisdom of their Canadian counterparts (update: see CARL’s statement on net neutrality here) and adopt a Network Neutrality policy that protects consumers and the virtuous circle of investment and innovation upon which an Open Internet depends.