The best word to describe yesterday’s oral argument at the Eleventh Circuit Court of Appeals in regard to the appeal of the Georgia State University e-reserves decision is probably bizarre. But that has to be qualified; they were bizarre in a very discouraging direction for GSU and fair use in the academy.
November 19, 2:00 pm, Rialto Center for the Arts
In 2012, the North Georgia District Court ruled largely in favor of Georgia State University in the ongoing copyright lawsuit initiated by Cambridge University Press, Oxford University Press, and Sage Publishers. The decision was the first federal court decision specifically addressing fair use and electronic reserves. Plaintiff publishers appealed on many points of the ruling.
Oral arguments in the Cambridge v. Becker (GSU Copyright) lawsuit are scheduled for the morning of November 19th at the 11th Circuit Court of Appeals, room 339. Following the arguments, Georgia State University Library and American University Washington College of Law Program on Information Justice and Intellectual Property will host a post-argument panel at 2:00 p.m. in the Rialto Center for the Arts lobby.
Brandon Butler, Moderator, Practitioner-in-Residence, Glushko Samuelson IP Clinic, American University, Washington College of Law
Tony Askew, Principal, Meunier Carlin & Curfman LLC
Jonathan Band, Owner, Jonathan Band PLLC
Michael Landau, Professor, Georgia State University College of Law
Lisa Macklin, Director, Scholarly Communications Office, Robert W. Woodruff Library, Emory University
Steve Schaetzel, Principal, Meunier Carlin & Curfman LLC
Bruce Joseph, Partner, Wiley Rein LLP
The panel is free of charge, but registration is required to attend.
There will be a free live webcast of the event at http://www.livestream.com/georgiastate
If the Eleventh Circuit Court of Appeals applies this type of reasoning in the GSU appeal, we could see an even broader fair use ruling in Georgia State’s favor than we got from the District Court.
We may discover that buying something no longer means owning it in any meaningful sense—and our stuff isn’t really ours anymore.
Sometimes litigation creates strange bedfellows. We have watched with great interest the case of White v. West, a lawsuit challenging legal research databases Lexis and Westlaw for their practice of ingesting legal briefs and motions filed in federal court cases, indexing them for search, and reselling access to the briefs in their own databases. An abbreviated order entered in February says the databases have won the case, most likely based on a fair use rationale, but a full opinion explaining the reasoning of the court is still forthcoming.
This situation is deeply ironic. Reed Elsevier and West Publishing, the parent companies of Lexis and West, are historically aligned with the rest of the content industry in opposition to any legal theory that loosens the grip of copyright holder control. Reed Elsevier in particular is quite aggressive. They funded an anti-fair use amicus brief in the Georgia State case, are a member of the AAP, which funded another anti-fair use amicus brief in the HathiTrust case, pushed hard for database legislation, and were behind the awful “Research Works Act” which would have outlawed federal public access policies.
But now these ardent maximalists find themselves in substantially the same position as the libraries they have lately antagonized, and they must rely on the strongest possible fair use arguments to get themselves out of copyright trouble. Remarkably, the briefs make an eloquent case for fair use, and libraries can learn a lot from them.
Reed Elsevier and West filed six briefs in the case that are chockfull of fair use arguments. Here are a few of the high points, taken from Document #69, Reed Elsevier Memorandum of Law in Opposition to Plaintiff’s Motion for Summary Judgment. The full brief is embedded at the bottom of this post:
First Factor: Purpose and Character of the Use
“After selecting the Briefs for inclusion in the BPM database, Lexis enhanced them by making them text and topic searchable, adding links to and from related opinions, expert testimony, and other related materials, and adding hyperlinks to cited cases and statutes.”
So, careful processing and contextualizing helps strengthen a transformativeness argument. Libraries who add helpful metadata, link documents with one another and with larger collections, and so on, are engaged in transformative activity that creates a new, improved research object, different from the raw item that was initially acquired.
“Following selection and enhancement, the Briefs were added to a sophisticated research tool consisting of interconnected legal documents for students and professionals to research legal arguments, case law, statutes, pleading formats and so on.”
Once individual works are tagged and so on, they can be further transformed by placing them into a larger tool that enables search and analysis across a large corpus.
“Plaintiff’s use of the Briefs was entirely different. They were created to advocate a client’s position in a court.”
While in the broadest sense, legal briefs are written (like every written work) to be read, the Elsevier legal team realizes that you need to look at a more specific purpose to determine whether a new use is transformative. Namely, you need to look at the main purpose that motivated the author to write and publish the work. Similar arguments could be made about many items in library archives and special collections, and even in general research collections. These works were created as business records, or personal documents, or to communicate privately, or to advocate a scholarly position to one’s peers, etc. Making them the object of research or teaching may well be transformative.
“The stark contrast in the purposes of these two uses alone confirms that Lexis’s use is transformative.”
Indeed, the case law is quite clear: a use is transformative (and thus favored under the first fair use factor) if it is made for a new purpose distinct from the purpose of the original work. Reed Elsevier should have put its attorneys in this case in touch with the ones representing the AAP in its anti-fair use amicus brief in the HathiTrust case, as the latter team sternly dismissed the idea that a new purpose is sufficient to render a use transformative. Indeed, the Reed Elsevier team cites with approval exactly the same language from Judge Baer’s decision in HathiTrust that the AAP team is trying to discredit.
Digital access provided to students for free is not the same as printed course packs sold for profit
Reed Elsevier argues persuasively that the Basic Books v. Kinko’s case, which found copy shops liable for providing students with course packs for profit, does not apply when the use is transformative and access is provided free of charge:
That case involved a private copy center charging college students for copies of course packets. Lexis, however, does not charge law students for access, and its use, unlike the defendant in Basic Books, did not have “the intended purpose of supplanting the copyright holder’s commercially valuable right.”
Second Factor: Nature of the work used
“Lexis therefore did not usurp any right of first “publication” because Plaintiff never had any intention to publish the Briefs beyond filing them in court.”
Libraries sometimes worry that for unpublished works they may face the claim that their use cannot be fair because it violates the old common law “right of first publication.” Reed Elsevier argues that for works that obviously were never destined for publication, there is no such right. Music to any archivist’s ears, I’m sure!
“[L]egal professionals who review already filed legal documents are not searching for clever turns of phrase—they are looking to see what arguments have been made, what authorities have been cited, and what facts have been relied upon by lawyers in cases similar to their own.”
Kinda sounds like what scholars are interested in when they look at articles and books, right? Just as Judge Evans did with the scholarly monographs in the Georgia State case, Reed Elsevier argues here that the briefs are not primarily about expression; they are about facts and analysis. This turns the second factor in favor of fair use.
Third Factor: Amount Used
“It is indisputable that it was necessary for Lexis to copy the entirety of the Briefs to create a fully searchable database and provide the user access to complete and accurate legal formats and arguments as part of its transformative use.”
Indeed, you can use the whole thing if that’s the right amount for your transformative purpose. If your purpose is to make a fully searchable database (ahem, HathiTrust), then, by golly, the whole thing is what you need! Reed Elsevier said so. (And so did the US Supreme Court, of course, in the landmark case Campbell v. Acuff Rose.)
Fourth Factor: Market Harm
“Plaintiff makes the circular argument that, because Lexis uses the Briefs for its sophisticated legal research database, ipso facto, Lexis has harmed Plaintiff’s ability to license its Briefs for that use.”
That’s right: just because, say, the AAP or the Copyright Clearance Center or the Authors Guild comes knocking with its hand out doesn’t automatically mean there is a genuine “market” that has been harmed by the use. That would be circular!
“To avoid this ‘danger of circularity,’ courts have held that market harm for purposes of a fair use analysis does not take into account any market created by the transformative use.”
So when someone like, say, the CCC or Reed Elsevier, does have their hand out, you can tell them they don’t get your money if what you’re doing is transformative.
“Plaintiff acknowledges that the Briefs were not created with the intention of selling or licensing them, and it has never attempted to sell or license the Briefs.”
Yep: there can’t be market harm if you’ve never intended to exploit a market. Again, good news for archives and special collections; all those business records and family photos and constituent letters are subject to a very friendly analysis under the fourth factor.
“First Amendment considerations are also part of the fair use doctrine.”
Fair use is not the last refuge of a scoundrel; it is a “built-in First Amendment accommodation” recognized by the Supreme Court. Where First Amendment interests are at stake (academic freedom, perhaps), the scale should tip further in favor of fair use.
It is really quite refreshing to read all the arguments that we in the library community have been making for years in the pages of a brief filed by the loyal opposition. I would like to hope that the publishers learned something from spending a little time on the Defendant’s side of the “v.,” but since their terrible GSU and Hathi briefs were filed after these wonderful briefs (and by different attorneys), I’m not optimistic.
The Library Copyright Alliance (LCA) filed a friend of the court brief today in support of Georgia State University in the appeal of Cambridge U. Press et al. v. Mark P. Becker et al. In its brief, LCA argues that GSU’s e-reserves policy is consistent with widespread and well-established best practices for fair use at academic and research libraries, and that these uses have no negative effects on scholarship. LCA is represented by Jonathan Band and attorneys from the Electronic Frontier Foundation. The case is on appeal with the U.S. Court of Appeals for the 11th Circuit.
The case began in 2008 when Cambridge University Press, Oxford University Press, and SAGE Publishers sued GSU for alleged copyright infringement. The publishers argued that GSU’s use of excerpts from copyright-protected materials in password-protected course e-reserves and class sites was a violation of the copyright law. Notably, the Association of American Publishers and the Copyright Clearance Center, the licensing arm for much of the academic publishing industry, organized and funded the lawsuit.
In May 2012, Judge Orinda Evans of the U.S. District Court in Atlanta ruled in favor of the university in a lengthy decision that reviewed each of 75 alleged infringements, finding only 5 infringing uses. In her ruling, the Judge saw little evidence of market harm to the publishers, and clearly understood that current teaching practices were beneficial to teachers and students, as well as being reasonable and fair. Because of GSU’s overwhelming victory, and the publishers’ aggressive litigation strategy, Judge Evans ordered the publishers to pay GSU’s attorneys’ fees and costs (nearly $3 million), an important ruling that could help discourage future aggressive lawsuits against good faith fair users.
Now that the issues are narrowed and clarified on appeal, LCA is one of several groups filing on the side of GSU in a striking show of solidarity across the academic community. The American Council on Education, the Association of American Universities, the Association of Southeastern Research Libraries, and the American Association of University Professors, among others, are all represented in briefs defending the fair use rights of faculty, students, and librarians.
A 10% taking has been held to be lawful even in a developed country such as the US. It is now very clear that publishers are seeking an outright ban on course packs, even those that use a fraction of copyrighted works.
The US Department of Justice might have seen the light and decided not to side with foreign publishers against a US public university, but it appears that the US copyright system in general takes the side of foreign companies against the US public.
That’s the inference I draw from an important new report, Foreign Ownership of Firms in IP-Intensive Industries and handy infographic by Jonathan Band and Jonathan Gerafi, which shows that the US’s rightsholder-friendly copyright laws amount to a kind of reverse protectionism: we punish US taxpayers, domestic industries, and the public interest in order to protect foreign corporations.
The numbers are striking, especially in the publishing industry. Simply put, the vast majority of the publishing industry is foreign-owned – over 80% of the revenue flowing to the “big 6” publishers is flowing overseas. When you focus on STM publishers, the numbers get even worse – around 90% of the STM publishing industry is foreign owned by revenue.
The recording industry is nearly as bad, with around 75% of the revenue of the “big three” labels flowing overseas. Gaming console makers are similarly dominated 3-to-1 by foreign companies.
The motion picture industry looks like a star-spangled standout, with most of the industry owned by US companies, but Band and Gerafi dig deeper to show that there is still a good chunk of work and revenue flowing overseas for shooting locations, production work, foreign talent, and the like.
In short, the tangible benefits of the US copyright system with its extravagant term of protection, its punitive statutory damages, and all the other well-known and documented dysfunctions, seem to flow mostly to huge foreign corporations.
It wasn’t always thus. It’s a truism among copyright wonks that the US used to be a “pirate nation” – US law for many many years did not award copyright to foreign works. Indeed, Benjamin Franklin, who was one of the country’s first librarians, was also arguably one of our first pirates – he ran a press in Philadelphia that profited from the unlicensed printing and sale of the works of European authors.
What a difference a couple of centuries makes. In addition to the overwhelming foreign domination of the copyright industries, American copyright law on its face is definitively tilted in favor of foreign authors and foreign rightsholders. Their works were airlifted out of the public domain by the Uruguay Round Agreements Act, which was challenged and vindicated in the Supreme Court in the Golan case. Foreign rightsholders are not subject to the requirement of registration prior to bringing lawsuits. And the list goes on.
Together with the growing consensus that some of the worst problems in our copyright system owe to our accession to an international copyright treaty called the Berne Convention, this report should give momentum to the movement to recalibrate copyright so that it returns to its Constitutional purpose of “promoting Progress” for the benefit of the US public at large.
The GSU case looks like an ordinary copyright infringement case, but only superficially. Its true goal is to facilitate collusion among academic publishers via the CCC.
To now argue that this minor statement in support of fair use (which doesn’t change anything — since many universities had already acted this way, and it’s always how non-digital reserves had worked) somehow upsets a delicate “balance” isn’t just laughable, it’s an insult to those familiar with the history of copyright law.