Tag Archives: copyright

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

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

In 2008, publishers sued GSU for copyright infringement, arguing that the use of unlicensed excerpts of copyrighted works in the e-reserves constituted infringement. GSU defended itself, relying on the right of fair use. In the first bench trial, the district court ruled in favor of fair use for 43 of the 48 cases of alleged infringement. The Eleventh Circuit reversed and remanded the case in 2014, directing the lower court to re-examine its weight to market substitution and re-evaluate the four fair use factors holistically, rather than taking an arithmetic approach (i.e., if three fair use factors favor the use, but one disfavors it, fair use should always apply). On remand, the district court re-evaluated the four factors and found that 44 of the 48 cases constituted fair use. In her analysis, Judge Evans assigned each factor a weight: “The Court estimates the initial, approximate respective weights of the four factors as follows: 25% for factor one, 5% for factor two, 30% for factor three, and 40% for factor four.” The publishers again appealed to the Eleventh Circuit, which heard the case in 2017. (Here’s a link to ARL’s amicus brief in the second appeal.)

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

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

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

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

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

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

Eleventh Circuit Finds Georgia’s Annotated State Laws Not Copyrightable

On Friday, October 19, the Court of Appeals for the Eleventh Circuit found that Georgia’s annotated laws are not protected by copyright, reversing the district court. In Georgia v. Public.Resource.Org, Georgia argued that its annotated state laws are protected by copyright. Public.Resource.org posted these laws online—it has for several other laws and codes in other jurisdictions—and was subsequently sued for copyright infringement. Public.Resource.org argued that because only the annotated versions are considered official versions, they should be free to be read by the public. As a policy matter, this outcome makes sense; one should be able to read, for free, the laws that they must abide by. The Eleventh Circuit agreed with Public.Resource.org.

The Eleventh Circuit did not state that all annotated laws are not copyrightable, but instead noted that in the present case, the annotations were done at the direction of state officials and intertwined with the law itself. The court sums up its conclusion: “the annotations in the OCGA are sufficiently law-like so as to be properly regarded as a sovereign work. Like the statutory text itself, the annotations are created by the duly constituted legislative authority of the State of Georgia. Moreover, the annotations clearly have authoritative weight in explicating and establishing the meaning and effect of Georgia’s laws. Furthermore, the procedures by which the annotations were incorporated bear the hallmarks of legislative process, namely bicameralism and presentment. In short, the annotations are legislative works created by Georgia’s legislators in the exercise of their legislative authority.”

The district court had ruled that the annotations were subject to copyright, then proceeded to reject the argument that Public.Resource.Org’s use was fair use. However, as the Eleventh Circuit notes, “Because we conclude that no copyright can be held in the annotations, we have no occasion to address the parties’ other arguments regarding originality and fair use.”

ARL submitted an amicus brief in this case together with ALA, ACRL, Public Knowledge and other groups and individuals—as well as in a related case, ASTM v. Public.Resource.Org, supporting Public.Resoure.org.

Documentary “Paywall: The Business of Scholarship” Premieres in Washington, DC

*This is a guest blog post by Judy Ruttenberg, ARL program director for strategic initiatives.*
*Updated September 11, 2018, with quotation from Geneva Henry.*

The documentary film Paywall: The Business of Scholarship made its global premiere in Washington, DC, on September 5, 2018, the same week that 11 European countries proclaimed that all their publicly funded research would be open access by 2020. Paywall producer and director Jason Schmitt and director of photography Russell Stone welcomed the DC audience, which comprised many of the scientists, publishers, and open access advocates featured in the 65-minute film. With minimal narration and expertly sequenced interviews, the film weaves together two principal stories: the exorbitant financial cost to access for-profit academic journals and the associated, incalculable human cost when doctors, patients, students, and would-be innovators all over the world hit paywalls that deny them access to the latest research.

Schmitt, an associate professor of media and communication at Clarkson University, told the DC audience that the film was made not for them but for their neighbors, friends, and colleagues who are not immersed in the world of academic publishing. To the uninitiated, the system makes little sense. The labor of writing articles is unpaid, as is much of the editing, peer review, and curation. Taxpayers fund most scientific research, whether done within government agencies, or through universities, and yet the results (until recently) have not been available to them. The top five academic publishers—which dominate the market—earn profit margins up to ten times that of top technology firms. While many of the film’s subjects acknowledged innovation and value within these publishing companies, Elsevier in particular, most were quick to say those contributions are outweighed by the costs to the scientific enterprise of excluding so many people from participating in it.

Some of Paywall’s most compelling interviews address the consequences of exclusion. Brian Nosek, executive director of the Center for Open Science (COS), described a meeting with a cohort of graduate students in Budapest who were all studying implicit cognition. Why so many students, in one sub-field? Because the papers are largely available on the open internet. Schmitt met with medical students and faculty in Africa and India who were unable to access the latest literature, and unable to contribute their own discoveries to it. Paywalls inhibit innovation because they minimize the chance that “the right person will be in the right place at the right time,” with respect to the literature, said Tom Callaway, from the open source software company Red Hat. And the audience laughed along with Sci-Hub creator Alexandra Elbakyan as, in a rare on-camera interview, she explained that Sci-Hub is targeting this exclusion by helping Elsevier fulfill its mission to make “uncommon knowledge common.”

Paywall is a celebration of the open access (OA) movement and its victories to level the playing field through preprint services like arXiv, and through policies mandating public access to government-funded research. The film is also a sober reflection on the OA movement’s progress, as for-profit academic publishers have both stalled and monetized open access while maintaining ever-increasing subscription revenue. The consortium of European national funders, called cOAlition S, announced their initiative this week with a set of principles addressing these exorbitant costs, including a cap on open access publication fees and a prohibition on publishing in hybrid journals (that charge a mix of subscription and open access fees). Peter Suber, director of the Harvard Office for Scholarly Communication, emphasized in Paywall the critical importance of authors retaining copyrights in order for a large-scale open access system to function.

Geneva Henry, dean of Libraries and Academic Innovation at The George Washington University, also attended the premiere and offered this reflection:

Academic library leaders have been raising the concern for years about the unsustainable rate of inflation with online journals, particularly those supporting the sciences. We have shown our faculty and university leadership the solid data that demonstrates this problem, have cut journals each year to fit our budgets and have been met with criticism by the researchers, have provided information about open access and its advantages, and have received polite nods and smiles from everyone. But little has changed and the high-impact (high-cost) journals are still the ones that remain a priority for faculty publications. Paywall has the opportunity to present these audiences with perspectives from a wide variety of scholars and professionals who identify the issues we’ve been trying to communicate for so long. Its format as a film will enable broader distribution and hopefully be that communication vehicle for bringing this issue to the forefront of academic leadership. We’ve known for a long time that something needs to change and this film will hopefully serve as a catalyst for turning the tide on commercial publishing practices that limit the distribution of knowledge in our society. Perhaps librarians will now be viewed as the canaries in the coal mine rather than a bunch of chicken littles.

SPARC Europe, LIBER (the Association of European Research Libraries), and Research Libraries UK (RLUK) have all issued statements in support of cOAlition S. Peter Suber has also blogged about the plan.

Funded by a grant from the Open Society Foundations, Paywall will be screened by more than 175 universities this fall, and is available to stream under a CC BY 4.0 license at www.paywallthemovie.com. SPARC, a global coalition committed to making open the default for research and education, helped organize the DC premiere.

Senate Foreign Relations Committee Holds Hearing on the Marrakesh Treaty for Persons With Print Disabilities

On March 15, 2018, the Marrakesh Treaty Implementation Act (S. 2559) was introduced in the US Senate by Judiciary Committee Chair Grassley (R-IA), Ranking Member Feinstein (D-CA), Foreign Relations Committee Chair Corker (R-TN), Ranking Member Menendez (D-NJ), and Senators Hatch (R-UT), Harris (D-CA), and Leahy (D-VT), to ratify and implement the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (ARL’s press release on the introduction of the implementing legislation is available here).  Today, April 18, 2018, the Senate Foreign Relations Committee will hold a hearing on the Marrakesh Treaty.  Witnesses include Manisha Singh (Department of State), Allan Adler (Association of American Publishers), Scott LaBarre (National Federation for the Blind) and Jonathan Band (Library Copyright Alliance).

The Marrakesh Treaty, concluded in June 2013 and signed by the United States in October 2013, provides minimum standards for limitations and exceptions to copyright law to create and distribute accessible formats for people with print disabilities and allows for the cross-border exchange of these formats. The treaty is designed to address the “book famine,” a problem where less than 5% of all published works are created in an accessible format in the United States, a figure that drops considerably in some developing countries. The treaty is in force, with 35 contracting parties, currently: Argentina, Australia, Botswana, Brazil, Burkina Faso, Canada, Chile, Costa Rica, Democratic People’s Republic of Korea, Ecuador, El Salvador, Guatemala, Honduras, India, Israel, Kenya, Kyrgyzstan, Liberia, Malawi, Mali, Mexico, Mongolia, Nigeria, Panama, Paraguay, Peru, Republic of Korea, Republic of Moldova, Russian Federation, Saint Vincent and the Grenadines, Singapore, Sri Lanka, Tunisia, United Arab Emirates, and Uruguay.

The implementing legislation makes some technical changes to Section 121 of the Copyright Act, including expanding the scope of works that may be reproduced and distributed to dramatic works or musical compositions fixed in text or notation. Section 121 would apply for domestic activity regarding the creation and distribution of accessible format works. The bill also creates a new Section 121A to address activities involving cross-border exchange.

Ratification and implementation of the Marrakesh Treaty is critical to improving access to information and culture for those who are blind, visually impaired or otherwise print disabled. The treaty will not only assist those living in countries with extremely limited collections of accessible formats, but will provide significant benefits to those in the United States. The United States will be able to enhance its own collections of accessible format works, through exchange with countries with a common language, such as Australia and Canada, but will also benefit from the ability to import works in a foreign language, such as the nearly 50,000 accessible titles from Argentina.

ARL urges the Senate to quickly ratify the treaty, which will greatly enhance the ability of libraries and other authorized entities to serve those with print disabilities. Ratification and the implementing legislation is supported by a broad group of stakeholders, including organizations representing those who are blind, libraries and authorized entities and publishers.

For additional reading:

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.

ICYMI: New Advocacy and Public Policy Update

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

 

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

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

The Library Copyright Alliance issued the following statement:

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

 

USPTO Hosts Unbalanced Global Intellectual Property Academy Copyright Seminar

Several weeks ago, the United States Patent and Trademark Office (USPTO) hosted a copyright seminar at its Global Intellectual Property Academy for two dozen intellectual property officials primarily from countries in Latin America, Asia, and Africa. While the first several days involved an “overview” of copyright and mostly time with United States government officials, September 22 was labeled “Industry Day.” The speaker list revealed a very heavy focus on rightholders, in several cases the panels did not have any voices advocating for the importance of consumers and the role of limitations and exceptions in copyright law.

Although I appreciated the opportunity to have participated on a panel on issues related to publishing, I was disappointed to learn that USPTO planned such a highly unbalanced lineup of speakers, overall. By hosting a day almost exclusively comprised of copyright maximalists, USPTO provides its audience, intellectual property officials in other countries, only one side of the story.

Balance is critical in a functional copyright system to ensure that user rights are protected. In addition to the numerous specific limitations and exceptionsin copyright law, the United States has a strong “safety valve” in its copyright system: fair use. This flexible doctrine accommodates new technologies and circumstances. It ensures that Congress does not need to pass new legislation each time a new limitation or exception is needed. Fair use, of course, is not limited to consumers of copyrighted goods and is essential to rightholders as well. Rightholders have successfully relied on the right of fair use in litigation, even though they often complain about consumers who rely on this doctrine. The U.S. Government also relies on fair use; the Patent and Trademark Office itself relies on it in the patent examination process and for photocopying materials. Despite the importance of fair use and other limitations and exceptions, the panels appeared to be heavily skewed only toward discussing the rights of rightholders. Absent from these panels were voices like documentary filmmakers, remix artists, consumer groups and others who would provide different perspectives from the traditional content industry and give the audience a more balanced view of the United States copyright system.

On my own panel, the other speakers included Allan Adler of the Association of American Publishers (AAP), Ryan Fox of the Authors Guild, and Michael Healy of the Copyright Clearance Center (CCC).  All of these groups strongly advocate for greater rights of rightholders and have been involved in recent cases opposing fair use (such as Authors Guild v. HathiTrust or the Georgia State E-Reserves Case), as parties to the case, as amici, or by funding the litigation (or some combination).

These USPTO seminars would benefit from a more diverse groups of speakers who can provide meaningful balance.

Below is the full list of topics and speakers from “Industry Day”

Overview of Key Issues facing the Music Industry

Part 1: Efficient and fair licensing, collection and distribution of royalties

Tim Dadson, Assistant General Counsel, SoundExchange

Erich Carey, Vice President & Senior Counsel, Litigation at National Music Publishers’ Association (NMPA)

Part 2: Sound recording licensing

Steve Marks, Chief, Digital Business & General Counsel, RIAA

Greg Barnes, General Counsel and Director of Governmental Affairs, Digital Media Association (DiMA)

Overview of Key Issues facing the Audiovisual (Film) Industry

Kevin Rosenbaum, Of Counsel, Mitchell Silberberg & Knupp LLP; Counsel to the International Intellectual Property Alliance (IIPA)

Troy Dow, Vice President and Counsel, Government Relations and IP Legal Policy and Strategy, The Walt Disney Company

Paula Karol Pinha, Director of Public Policy, Latin America -Netflix (invited)

Overview of Key Issues facing the Software Industries

Ben Golant, Entertainment Software Association (ESA)

Christian Troncoso, Director of Policy, Business Software Association (BSA) | The Software Alliance

Chris Mohr, Vice President for Intellectual Property and General Counsel, Software and Information Industry Association (SIIA)

Overview of Key Issues facing Photographers and Visual Artists

Joshua J. Kaufman, Chair, Art, Copyright & Licensing Practices, Venable LLP

Tom Kennedy, Executive Director, American Society of Media Photographers (ASMP)

Overview of Key Issues facing the Publishing Industry

Michael Healey, Executive Director, International Relations, Copyright Clearance Center (CCC)

Allan Adler, General Counsel and Vice President for Government Affairs, Association of American Publishers (AAP)

Ryan Fox, Editorial Director, Author’s Guild

Krista Cox, Director of Public Policy Initiatives, Association of Research Libraries

A New Approach to Copyright Exceptions and Limitations

*Guest post by Jonathan Band, policybandwidth*

Any discussion with policymakers or rightsholders concerning the possible adoption of new copyright exceptions and limitations invariably centers on how to make sure that the exception is not abused. This leads to lengthy negotiations resulting in complex, difficult-to-use provisions that resemble the tax code. This pattern has been repeated in connection to the exceptions to section 1201 of the Digital Millennium Copyright Act, the TEACH Act for distance education (17 U.S.C. § 110(2)), the Chafee Amendment for the print disabled (17 U.S.C. § 121), and orphan works legislation, to name just a few of the more salient examples.

It’s time for this pattern to be broken. Rightsholders have nothing to fear from exceptions and their possible abuse. Infringement deriving from abuse of exceptions likely would be a tiny fraction of the overall incidence of infringement. At the same time, preventing the public benefits that flow from exceptions undermines the purpose of the copyright system.

Section 108

Unfortunately, this pattern of developing overly restrictive exceptions may soon repeat itself in the context of the exception for libraries and archives in 17 U.S.C. § 108. In 2005, the Library of Congress and the Copyright Office convened a study group consisting of librarians and publishers to consider how to update section 108 for the digital age. After three contentious years, the study group issued a report recommending several possible amendments to section 108, but could not reach consensus on the details of those amendments, nor on how to handle other important issues such as copies for users or license restrictions.

Notwithstanding this lack of consensus, and over the objection of most libraries and archives, the Copyright Office has decided to urge Congress to revise section 108. This past June, the Copyright Office issued a notice of inquiry stating that it seeks “to finalize its legislative recommendation” concerning a “re-drafting” of section 108. In meetings with stakeholders pursuant to this notice of inquiry, the Copyright Office stated that it hopes to complete its legislative recommendation and transmit it to Congress this fall.

Although the Copyright Office hopes to make section 108 simpler and more user-friendly, the Office’s likely concern about “leakage” almost certainly guarantees that the re-drafted section 108 will be complicated and not understandable by librarians without law degrees. And even if the Office somehow manages to produce a streamlined and comprehensible proposal, the rightsholders can be expected to insist on changes to eliminate possible abuse that will inevitably make the proposal more complex.

There is no doubt that digital networks have facilitated copyright infringement. And while the adverse impact of this infringement probably has been overstated by rightsholders, it is perfectly legitimate for rightsholders to take reasonable measures to address infringement. The operative word here is reasonable. And making exceptions for libraries, educational institutions, or the print disabled difficult to use in order to reduce potential leakage is not reasonable.

There are approximately 200 million smartphone users in the United States, and 2 billion smartphone users worldwide. Each smartphone has the capability of reproducing entire copyrighted works and uploading them to the Internet, where they can be disseminated globally. In a world where this technological capability is literally at the fingertips of so many users, what possible difference could it make if there is a small amount of leakage from a library?

Consider the following examples. Under existing section 108(c), a library is permitted to make a replacement copy of a published work that is damaged or lost if the library determines that an unused replacement cannot be obtained at a fair price. While the library may circulate a physical replacement copy, it cannot make a copy available in a digital format outside the library premises. The Section 108 study group recommended modifying the prohibition on off-site lending of digital replacement copies only to allow the lending of a copy reproduced in a digital physical medium if the library’s original copy was also in a digital physical medium. In other words, if the library owned an audiobook CD that was deteriorating, the study group proposal would allow the library to make and lend a replacement CD, but it would not be able to stream the digital file to a user. Similarly, if its original copy wasn’t digital, the library would not be able to make a digital copy viewable outside of the library premises.

The publishers in the Section 108 study group insisted on these restrictions because they were afraid that the digital files would be retransmitted on the Internet. This concern overlooks four facts. First, the exception would only be available if a replacement copy couldn’t be purchased, i.e., the work was out of print so there would be no market harm, even if unlawful retransmission occurred. Second, unlawful copies of any work for which there is current and likely future demand are already available online, so how much incremental harm could be caused by unlawful retransmission of the library’s replacement copy? Third, technological measures exist to make retransmission difficult. Fourth, as fair use jurisprudence has evolved, making the digital copy available outside the library premises with appropriate technological protections likely would be a fair use. In other words, the library could probably engage in the activity anyway under a fair use theory, so why not save the library the burden of performing the fair use analysis and simply permit it under an explicit exception?

A similar analysis could be performed for many of the study group’s other recommendations. For example, the proposed exception for the archiving of publicly accessible websites was unnecessarily regulatory, especially considering that commercial entities such as Google and Microsoft routinely engage in this activity under a fair use theory.

It is the awareness that section 108 reform will be extremely contentious and unlikely to produce positive results that has led to library opposition to the Copyright Office’s initiative.

Section 1201 Rulemaking

Likewise, the exemptions that the Library of Congress has adopted during the course of the triennial rulemaking under section 1201 of the DMCA reflect an unhealthy obsession with possible abuse. The current exemption, adopted in 2015, permits circumvention of the technological protections on lawfully acquired motion pictures by college and university faculty and students, for use of short portions for educational purposes “in film studies or other courses requiring close analysis of film and media excerpts…where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content.” Thus, an instructor or a student may circumvent only after determining that no alternative to circumvention will produce the “level of high-quality content.” This would necessitate that the instructor or student determine: 1) whether the course requires “close analysis of film and media excerpts;” 2) what level of quality excerpt she needs to satisfy her educational purpose; 3) what are the various available alternatives to circumvention; and 4) whether any of these alternatives will produce the required level of quality excerpt. In the K-12 context, this exemption is available only to instructors, not students.

The Copyright Office designed an exemption that requires educational users to jump through many hoops so as to ensure that the exemption is not abused. At the insistence of rightsholders, the Copyright Office evidently considers circumvention to be a highly dangerous activity that leaves films vulnerable to widespread infringement, and thus must be regulated carefully. However, there is no evidence that any infringement resulted from earlier iterations of the exemption that were more straightforward. Further, the software necessary to circumvent the technological protection measures on DVDs or other storage media is widely available on the Internet and easy to use. Moreover, infringing copies of most films can be found on the Internet soon after release. Thus, a simple, broad circumvention exemption for any educational use would not harm the market for the films in any meaningful way. (At one time, some film studios planned to create a market for licensing film clips to educational institutions, but the enormous number of works educators need to access made development of such a market infeasible.)

A New Approach

Rightsholders’ frustration with their loss of control over their content is understandable. It also is understandable that this frustration would fuel a desire to exercise control wherever they can, even though it makes no difference to their bottom line.

Although the rightsholders’ frustration is understandable, it is bad copyright policy to impose the costs of overly restrictive exceptions on libraries and educational institutions where there is no offsetting benefit to rightsholders or society at large. As the Supreme Court recently stated in Kirtsaeng v. Wiley, “copyright law ultimately serves the purpose of enriching the general public through access to creative works.” The Supreme Court then explained that “the statute achieves that end by striking a balance between two subsidiary aims: encouraging and rewarding authors’ creations while enabling others to build on that work.” Exceptions and limitations are the means to achieve the aim of enabling others to build on a work.

Rather than fight reasonable adjustments to Title 17 to accommodate digital technology, rightsholders should embrace them. This not only would better meet the objectives of the copyright system, it also would be in the long run best interest of rightsholders. Instead of advocating for narrow section 1201 exemptions for educational uses of film clips, studios should encourage the broadest possible use of films in classrooms. Doing so would more deeply entrench the role of films in American culture and society.

Similarly, publishers should facilitate libraries making the robust use of their collections. Libraries spend $4 billion a year acquiring books and other materials. The more access libraries are able to provide to their collections—the more libraries are used—the easier it is for libraries to secure the budget they need to purchase more materials. Additionally, greater access to written materials encourages literacy, which in turn leads to greater demand for written materials. Finally, for many users, the alternative to accessing materials through libraries would not be to purchase the materials, but to find infringing copies on the Internet.

The same logic applies to remixes and fan fiction. More enlightened rightsholders have recognized that these activities deepen fan loyalty and result in increased sales. Additionally, these activities train the next generation of artists. And of course, reasonable exceptions enhance the credibility of the copyright system generality.

In short, rightsholders should stop treating libraries and educational institutions—their biggest customers—as their copyright enemies, and instead assist them in promoting the creation and dissemination of culture by supporting the broadest possible copyright exceptions. If rightsholders can’t change direction on their own, policymakers in Congress, the Copyright Office, and the Executive Branch should lead the way. But until rightsholders and policymakers change their approach to exceptions, attempts to fashion new exceptions will largely be exercises in futility.

 

Moving from SSRN to SocArXiv

In May, Elsevier acquired SSRN, an open access repository heavily used in fields of law, economics and other social sciences. A number of great articles raising serious concerns about this acquisition were written following Elsevier and SSRN’s announcement, including posts by Brandon Butler and Ellen Ramsey, Kevin Smith, Paul Gowder, the Authors Alliance, and TechDirt, among others.

More recently, reports surfaced that SSRN started removing articles from its database even when the author to the posted article retained copyright and had explicit permission to post to SSRN. Articles posted under a CC license or originally posted in green open access journals were similarly removed, even where the article contained an explicit footnote asserting that the authors retained copyright. After a huge backlash, SSRN started restoring the papers upon the request of authors claiming a mistake in enforcing their copyright policies. SSRN also indicated that faculty posting final papers would need to add a statement in a footnote asserting copyright and open access permissions or submit their publication agreements to SSRN in order to have their papers posted.

Authors Alliance—as well as numerous academics—responded by asking whether it is time for authors to remove their papers from SSRN and find alternatives. Authors Alliance pointed out:

SSRN authors: you have not committed to SSRN. You can remove your papers from their service, and you can opt instead to make your work available in venues that show real commitment to the sharing, vetting, and refinement of academic work.

Alternatives obviously include an academic’s institutional repository or personal website, but authors might also consider the new, non-profit open access archive for social science research, SocArXiv. The recent announcement of this new archive comes at an opportune time given Elsevier’s May acquisition of SSRN and the ensuing changes to SSRN policies regarding posting of papers. SocArXiv, in partnership with the Center for Open Science, explained:

The initiative responds to growing recognition of the need for faster, open sharing of research on a truly open access platform for the social sciences. Papers on SocArXiv will be permanently available and free to the public.

Social scientists want their work to be broadly accessible, but it is mostly locked up from the public and even other researchers—even when the public has paid for it. SocArXiv wants to help change that. In recent years, academic networking sites have offered to make preprints available and help researchers connect with each other, but the dominant networks are run by for-profit companies whose primary interest is in growing their business, not in providing broad access to knowledge. SocArXiv puts access front and center, and its mission is to serve researchers and readers, not to make money.

Immediately after news broke that SSRN was removing papers, I checked my own author page to see if my dozen or so journal articles and briefs were still posted.  They are and I will use my author page one final time: to download my papers (they’re easier for me to find this way since I placed all of them on SSRN and won’t have to look through different files on my computer to collect them all) before moving them to try out SocArXiv. I hope other others consider moving their works to SocArXiv, as well.

For further reading, see Richard Poynder, “SocArXiv debuts, as SSRN acquisition comes under scrutiny.”