Tag Archives: amicus brief

Library Copyright Alliance Files Amicus Brief in GSU E-Reserves Case

On Monday, February 13, 2017, ARL together with the American Libraries Association, Association of College and Research Libraries and the Electronic Frontier Foundation filed an amicus brief in support of Georgia State University (GSU) in the e-reserves fair use case. After years of litigation and two opinions by the district court and one by the Eleventh Circuit, the case is once again before the Eleventh Circuit.

The brief opens by noting that that the continued appeals in the case are unnecessary:

Appellant Publishers (“Publishers”) and their amici don’t know when to quit. Publishers could have declared victory in 2009, when GSU modified its e-reserves policy in response to the initiation of this lawsuit. Publishers could have declared victory in 2014 after this Court reversed the district court’s 2012 decision and provided detailed guidance on how fair use principles should be applied to e-reserves. Publishers could have concluded this litigation after the district court refused to re-open the record on remand. Instead, Publishers doggedly pursue their claims concerning excerpts used in three school terms, eight years ago.

The brief then urges the Eleventh Circuit to affirm the lower court’s decision. In doing so, the brief notes that GSU’s copyright policy is consistent with the ARL Code of Best Practices for Academic and Research Libraries. The brief also suggests that the district court’s analysis of the second fair use factor (nature of the work) was flawed and the context of the works actually favors fair use. Finally, the brief notes the importance of the public interest in considering the fourth fair use factor (market harm).

On the second factor, the brief states that analysis of the second factor should be focused on “ascertain[ing] whether copyright was needed to incentivize creation and, by extension, whether or not a fair use finding helps serve the purposes of copyright.”  The brief points out that the scholarly community is a “gift culture” and while

We do not suggest that scholarly works should receive no copyright protection.  But we do agree with Judge Posner that copyright-based incentives are less necessary in the context of many academic works to serve copyright’s own fundamental goal: to further the progress of science.  Because scholarly works require “thinner” copyright protection to ensure their production, the second factor strongly favors a fair use finding with respect to all of the works at issue here.

With respect to the fourth factor, the brief points the constraints of library budgets and the growth of open access publishing.  It states that,

Placed in this context, it is clear that the public benefit of e-reserve practices such as GSU’s far outweighs any potential cost to publishers.  Although some academic publishers may have difficulty adjusting to the digital environment, predictions of the devastating impact the decision below would have on the evolving scholarly communications ecosystem are complete fiction.

D.C. Circuit Court to Hear Net Neutrality Arguments on December 4

On Friday, December 4, 2015, the Court of Appeals for the D.C. Circuit will hear oral arguments in United States Telecom Ass’n v. Federal Communications Comm’n.  The case comes to the D.C. Circuit after a number of telecommunications associations and companies filed petitions asking for review of the Federal Communications Commission’s (FCC) Open Internet Order governing net neutrality.  The FCC drafted and implemented its 2015 Open Internet Order after months of consultation following a January 2014 decision by the D.C. Circuit overturning the FCC’s 2010 net neutrality order.  The FCC’s 2015 Order, which reclassifies broadband Internet as a Title II common carrier and imposes bright line rules as well prohibiting unreasonable interference, was approved in February and went into effect in June.

ARL, together with the American Library Association (ALA), Association of College and Research Libraries (ACRL), and the Chief Officers of State Library Agencies (COSLA) filed an amicus brief in September 2015 supporting the FCC’s Open Internet Order and explaining the importance of net neutrality for the library community.

The case will be heard by Judge Tatel, who authored the the 2014 Verizon v. FCC opinion striking down the FCC’s 2010 Open Internet Order, as well as Judge Williams and Judge Srinivasan.

Libraries File Amicus Brief Supporting Net Neutrality

On September 21, 2015, ARL joined the American Library Association, Association of College and Research Libraries, and Chief Officers of State Library Agencies in filing an amicus brief in the Court of Appeals for the D.C. Circuit supporting the FCC’s Open Internet Order establishing rules protecting net neutrality.

The brief focuses on the importance of net neutrality for libraries and their patrons, pointing out that

As broadband subscribers, providers of Internet access points to patrons, and providers of digital content and services, libraries rely on the open character of the Internet to achieve their missions of providing equitable access to information, enhancing education and promoting life-long learning, supporting democracy and informed citizenry, and protecting intellectual freedom.

The brief points out that the FCC’s rulemaking process provided ample notice of its proposed rules, as evidenced by the extensive participation of libraries and other participants in the process.

Additionally, the brief highlights the importance of net neutrality in fulfilling their missions and serving their patrons.  The brief points out that public libraries provide broadband Internet access to their patrons, including to the roughly one-third of the population without Internet access at home.

The brief then points to several areas where libraries serve as creators and providers of content and information, often serving as edge providers.  These examples include the National Library of Medicine (NLM) which provides trillions of bytes of data each day to users; the New York Public Library’s (NYPL) digitization of content from the 1939 New York World’s Fair and creation of a free app that is used in New York public K-12 schools; Ann Arbor Public library’s production and sharing of podcasts and online interviews; the Iowa City Public Library’s digital collection of local music; the Florida Memory Project which provides free online access to archival resources from the State Library and Archives of Florida; the content created by library patrons, such as at the music created by teens at the Albany Public Library; and the Digital Public Library of America’s (DPLA) creation of a portal that delivers millions of materials from archives, libraries, museums and cultural heritage institutions to students, teachers, scholars and the public.  The brief continues:

All of these examples—which range from medical information, historical documents, cultural materials including video and audio works, and educational resources—demonstrate a clear need for an open Internet. Without bright-line rules and more general policies to preserve the open character of the Internet, access to these services and content provided by libraries may be slowed and impeded, resulting in reduced access to information and frustration for users.

The brief then turns to the issue of paid prioritization, noting that without bright-line rules banning paid prioritization, libraries and other institutions serving the public interest may not be able to pay extra fees for enhanced transmission of their content.  Prioritization risks that network operators would give priority to entertainment or other commercial content over education, civic engagement, access to information or other services.

Additionally, the brief supports the General Conduct Rule as a necessary tool to ensure that the Internet remains open and neutral.  The General Conduct Rule protects against future harms, including those made possible by technological innovations and advances.  The brief that the General Conduct Rule is supported under Title II reclassification as well as the FCC’s Section 706 authority.  The brief notes that the factors set forth by the FCC’s General Conduct Rule are sufficient to provide notice as to what conduct is not permitted.

The full brief is available for download here.

 

ARL Joins Amicus Brief in Surveillance Case, Wikimedia v. NSA

On September 3, 2015, ARL joined an amicus brief with other library associations and bookseller associations in Wikimedia v. NSA, a case that challenges warrantless surveillance.  The amicus brief, authored by the Electronic Frontier Foundation, was also signed on to by the American Booksellers Association, the American Library Association, the Freedom to Read Foundation, and the International Federation of Library Associations and Institutions.

The brief explains that the First Amendment is a broad guarantee that includes the ability to distribute and receive information, and to freely and privately associate.  Libraries have long advocated for and protected patron privacy, and the brief points out the importance of patron confidentiality including in the digital age.

The brief points out that protecting reader privacy is critical:

Providers of books and reading material such as libraries and booksellers are often uniquely positioned to assert readers’ First Amendment rights. Readers change or curtail their reading if they fear government scrutiny of their behavior, especially where the intrusion concerns reading material that is personally embarrassing, politically controversial, or otherwise revealing.

[…]

The resulting inhibition of expressive activity is not hypothetical: patrons care deeply about their intellectual privacy and avoid situations where they cannot preserve it. In Subpoena to Kramerbooks, the D.C. district court found that as a result of a grand jury subpoena for a patron’s book purchases, “[m]any customers have informed Kramerbooks personnel that they will no longer shop at the bookstore because they believed Kramerbooks to have turned documents over . . . that reveal a patron’s choice of books.” 26 Media L. Rep. (BNA) at 1601. Similarly, when the owner of the Tattered Cover bookstore challenged a search warrant for a customer’s purchase history, she testified she received an “‘enormous amount of feedback’ from customers about this case, including over one hundred letters from customers in support of the Tattered Cover’s position.” Tattered Cover, 44 P. 3d at 1050.

Additionally, the brief notes the rise in digital communications and interactions.  It emphasizes that the First Amendment rights apply in the digital world:

Just as libraries and booksellers have standing to challenge law enforcement access to patron records in the physical world so, too, do they have standing to challenge unwarranted access to digital records. Just as government intrusion on the freedom of inquiry causes First Amendment injury in the physical world so, too, does government surveillance cause injury in the digital world . . . By sweeping in and searching vast amounts of Internet traffic, upstream surveillance encroaches on the sensitive interactions between libraries and booksellers and their patrons—interactions that, as shown above, these entities have historically taken great pains to protect.

The full brief can be accessed here.

 

ARL Joins Amicus Brief in Mavrix Photographs v. LiveJournal

On June 22, 2015, ARL joined an amicus brief of the Computer & Communications Industry Association, the American Library Association, the Association of College and Research Libraries and the Electronic Frontier Foundation in the case Mavrix Photographs v. LiveJournal, currently pending in the Court of Appeals for the Ninth Circuit, supporting the respondent, LiveJournal.

The case involves a LiveJournal blog, Oh No They Didn’t!, a community blog involving reader submissions about celebrity gossip and pop culture.  These submissions include celebrity photos, including sets of photos from Mavrix.  Mavrix sued LiveJournal (without first sending any takedown notices) and LiveJournal responded by removing the photos and terminating two users as repeat infringers.  In the district court, LiveJournal prevailed under the Digital Millennium Copyright Act (DMCA) safe harbor rules because it did not have actual knowledge of infringement, nor did it have “red flag” knowledge of infringement (that LiveJournal should have known).  Mavrix appealed the case to the Ninth Circuit.

The amicus brief points out the importance of the DMCA safe harbors for the amici parties, including for libraries specifically:

The DMCA safe harbors have also been extremely helpful to the library amici in fulfilling their mission of providing their users with access to information.  Libraries act as “service providers” within the meaning of 17 U.S.C. 512(k)(1)(A).  Libraries are the only source for real Internet connectivity and Internet-ready computer terminals for many Americans . . . The Section 512(a) safe harbor for “mere conduits” has enabled libraries to provide Internet access without the specter of liability for onerous copyright damages because of infringing user activity.

Libraries also operate websites that host user-generated content and prepare directories that link users to other websites.  The safe harbors in Section 512(c) and (d) shelter libraries from liability for infringing activity by third parties.  Any new restrictions on the availability of the DMCA safe harbors could have an adverse effect on the ability of libraries to deliver a critical service to underserved and other user communities.

The brief points out that that while service providers do not have an obligation to look through user-submitted content for infringements, the DMCA also does not discourage monitoring. Many service providers review content for illegal or objectionable material that violates the terms of service agreements.  Such moderation does not result in the loss of safe harbor under Section 512(c) which addresses safe harbors for “Information Residing on Systems or Networks At Direction of Users.”

The brief also notes that, absent actual knowledge of infringement, “red flag” knowledge is a high bar.  It notes that just because a user submits content, such as a photograph, that exists elsewhere online does not constitute a “red flag” that the content is infringing.  Additionally, “Holding online service providers unexpectedly liable for the acts of their users, in contrast to the legal clarity Congress deliberately and presciently provided in Section 512, would be deleterious not only to Internet commerce, but also to free speech online.”  The full brief is available for download here.

ARL Joins Amicus Brief in Garcia v. Google Copyright Case

On Tuesday, November 25, the Association of Research Libraries (ARL), along with the American Library Association, Association of College and Research Libraries, and other technology and free speech organizations, joined an amicus brief authored by the Electronic Frontier Foundation in Garcia v. Google after the Ninth Circuit agreed to rehear the case en banc.

Earlier this year, a Ninth Circuit panel ruled 2-1 in favor of Cindy Lee Garcia, an actor in the film Innocence of Muslims, who asserted a separate copyright interest in her performance after being tricked into appearing in a five-second clip of the film and subsequently sought takedown of the film from YouTube.  While the district court refused to order takedown, the Ninth Circuit reversed, ordering Google, which owns YouTube, to take down — and keep down — the video.

The amicus brief argues that copyright law disfavors Garcia’s claim, that requiring service providers to monitor “blacklisted” content sets a dangerous precedent for online speech, and that finding a separate copyright interest for Garcia’s five second appearance would harm the expectations of content owners and increase the number of orphan works.