LCA Submits Testimony to House Judiciary Subcommittee for Copyright Review Hearing on Technological Protection Measures
On September 17, 2014, the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet continued its copyright review with a hearing on Chapter 12 of the Copyright Act, which governs technological protection measures (TPM). The hearing included four witnesses: Mr. Mark Richert, Director of Public Policy, American Foundation for the Blind; Mr. Jonathan Zuck, President, ACT | The App Association; Mr. Christian Genetski, Senior Vice-President and General Counsel, Entertainment Software Association; and Ms. Corynne McSherry; Intellectual Property Director, Electronic Frontier Foundation.
The LCA testimony points out that overly-broad anti-circumvention language was initially proposed in 1994 and 1995 over objections that these prohibitions could prevent circumvention for lawful purposes. After the 1996 adoption of the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT), PTO Commissioner Lehman proposed new anti-circumvention language to implement the treaties. Again, the proposals were overly broad, regulating both tools and conduct, regulating circumvention apart from underlying infringement and governing circumvention for both access-control technologies and copy-control technologies rather than only prohibiting copying. Significantly, the WIPO treaties did not require these overly-broad features, as Commissioner Lehman himself conceded when testifying before the House Judiciary Subcommittee.
Despite the fact that alternative proposals were made to address these overly-broad proposals, “Congress instead created a set of complex exceptions and limitations to the administration’s sweeping language, resulting in the convoluted, inconsistent section 1201 we have today. Some of these limitations are of limited effectiveness.” Additionally, Congress, in recognition that additional exceptions other than those explicitly included in Section 1201 may be desirable, directed the Librarian of Congress to conduct a rulemaking process every three years to determine additional classes of works that should be granted an exemption for the subsequent three-year period. However, as the LCA testimony points out, “A narrower section 1201 limited to circumvention that led to infringement would have obviated the need for the rulemaking procedure altogether.”
Over the years, there have been several efforts to amend section 1201 to address the potential problems resulting from an interpretation of this section as prohibiting circumvention of access controls or the manufacture and distribution of circumvention tools, even if they are for non-infringing purposes. These bills have varied from creating additional specific exceptions to requiring a nexus between circumvention and infringement. Most recently, controversy over the Librarian of Congress’ 2012 decision not to renew an exemption for cell phone unlocking that had been granted in previous rulemakings, resulted in renewed efforts to address flaws in Section 1201. Although Representatives Lofgren (D-CA), Massie (R-KY), Eshoo (D-CA) and Polis (D-CO) introduced a broad bill, the Unlocking Technology Act of 2013, that would have permitted circumvention for non-infringing uses, ultimately Congress took a narrower approach and adopted a temporary fix specific to the problem of cell phone unlocking.
The LCA testimony also includes a summary of litigation over Section 1201, explaining that currently a circuit split exists as to whether the language of 1201 requires a nexus between infringement and circumvention for liability to attach.
Additionally, the LCA testimony covers the three-year rulemaking process, which LCA members have participated in during each cycle. The testimony points out some of the absurdities of the process as well as the high costs and burdens of participating in the rulemaking cycle. The testimony points out that “From start to finish, the process can take more than a year” and that the inefficient system places burdens on not only the proponents of exemptions, but the Copyright Office, as well.
The testimony concludes with several proposed amendments to Section 1201 including:
Attaching liability to circumvention only if it enables infringement
Placing the burden of proof on those opposing renewal of exemptions to demonstrate why it should not be renewed or should be modified
Making exemptions permanent if a second renewal is granted
Shifting final rulemaking authority from the Librarian of Congress to the Assistant Secretary for Communication and Information of the Department of Commerce
ARL and Eleven Other Library and Higher Education Organizations File Reply Comments on Net Neutrality
On Monday, September 15, 2014, twelve library and higher education organizations, including ARL, filed reply comments with the FCC on net neutrality in response to the Notice of Proposed Rulemaking (NPRM) to protect and promote the open Internet. The FCC issued the NPRM following the Court of Appeals for the D.C. Circuit’s January 2014 decision striking down the FCC’s 2010 Open Internet Order’s rules on no-blocking and anti-discrimination . Eleven of these organizations previously filed comments as well as net neutrality principles in July; the reply comments recommend that the FCC adopt the principles and strategies contained in these prior filings. In the reply comments, these groups continue emphasizing the importance of net neutrality in protecting free speech, educational achievement and economic growth. While the initial comments pointed out that the FCC could use its legal authority to reclassify broadband Internet services as a Title II “common carrier” or exercise its Section 706 authority, the reply comments focus on options under Section 706.
The comments point out the importance of the open Internet, also known as net neutrality, so that these institutions can carry out their missions and promote education, research and learning. The twelve organizations ask the FCC to “take special heed” of the importance of net neutrality for library and higher education institutions pointing out:
We are not aware of any commenters who disagreed with the importance of an open Internet for education, research, and learning. In fact, the New America Foundation specifically recognized the importance of an open Internet for schools, libraries and other public institutions.
At the same time, few commenters called attention to these needs, and the NPRM does not focus on these issues as much as it could. As an example, we note that the opening paragraph of the PRM released on May 15, 2014, does not use any of the words “education,” research” or learning.” … Recognizing the important public interest in education, research and learning throughout the FCC’s final order will help the commission orient its net neutrality policy in a way that recognizes these cherished public interest values.
The comments also note the concerns that without net neutrality, paid prioritization may occur as broadband providers would have the incentive and opportunity to divide the Internet into fast lanes and slow lanes based on the ability or willingness to pay for enhanced access. The coalition of library and higher education institutions emphasize that, “If public broadband providers are allowed to prioritize or degrade certain Internet traffic, or discriminate in favor of or against certain content or applications, the future of the Internet as a platform for education, research learning, innovation and free speech will be put in jeopardy.”
Specifically, libraries and higher education institutions depend on the open Internet as they increasingly rely on access to and storage of information remotely, including subscriptions to online-only resources; serve as centers where people complete online education courses; act as partners with the Internet Archive to digitize and make accessible various materials; use the portal developed by the Digital Public Library of America (DPLA) to allow patrons to search and scan resources; and transition to cloud-based productivity application services to support faculty and student access to email, word processing and related applications as well as for administrative and learning management systems.
The comments also suggest that in addressing a no-blocking rule, the FCC could require that when a broadband provider chooses to offer Internet service, that provider must then fulfill the consumer’s decision to interact with his or her chosen edge provider and cannot block such access. This rule focuses on consumer choice, but does not obligate the broadband provider to serve every consumer as the FCC’s 2010 Open Internet Order’s no-blocking rule did. This suggestion provides an alternative path for the FCC than a rule that would require providing a minimum level of service.
Building on the July filing, the reply comments again encourage the FCC to adopt an “Internet reasonable” standard to govern the relationship between broadband providers and edge providers rather than the FCC’s proposed “commercially reasonable” standard. Numerous groups and organizations, such as the Center for Democracy & Technology, Free Press, Public Knowledge, the New America Foundation, the Internet Association, the Communications and Computer Industry Association (CCIA), among others, have opposed the “commercially reasonable” standard because such a standard would likely be ineffective in preserving net neutrality. The reply comments suggest that an “Internet reasonable” standard would provide a more tailored approach that would evaluate impact on the Internet ecosystem. Additionally, the reply comments again propose that the FCC establish clear presumptions, such as against paid prioritization, on conduct that would violate the “Internet reasonable” standard.
76 Companies and Organizations Urge Congress to Ensure Privacy of Online Communications
On September 8, 2014, the Association of Research Libraries joined a broad coalition of seventy-six technology companies as well as privacy and public interest organizations in sending a letter to Senate Majority Leader Harry Reid (D-NV) and House Majority Leader Kevin McCarthy (R-CA) urging reform of the Electronic Communications Privacy Act (ECPA). Both the Senate and House have considered bills to update ECPA and ensure that Fourth Amendment privacy protections extend to the online communications. The House version of ECPA reform, H.R. 1852 reached a milestone of 218 co-sponsors on June 17, 2014 representing a majority of the House and the bill enjoys broad bipartisan support. Since that date, additional co-sponsors have been added to H.R. 1852 and more than 260 Members have joined in their support of this bill. The Senate bill, S. 607, also enjoys bipartisan support and was introduced by Senators Leahy (D-VT) and Lee (R-UT) and was approved by the Senate Judiciary Committee in 2013.
ECPA reform is necessary to ensure that the Fourth Amendment guarantees of privacy apply equally to digital information as it does to physical property. ECPA, enacted in 1986, has not kept pace with evolving technologies and allows government agencies to access online communications that are older than 180 days without obtaining a warrant, thereby affording digital information, such as that which is stored in the cloud, less protections than data stored locally in a home or office. The bills considered by Congress would require warrant-for-content, a standard that the U.S. Department of Justice already follows. Civil regulatory agencies want an exception, however, allowing the collection of content directly from third-party service providers. The letter states clear opposition to a “carve-out of regulatory agencies or other rules that would treat private data differently depending on the type of technology used to store it.”
As libraries and universities increasingly used cloud-based services and more communications take place online, ensuring that the Fourth Amendment extends to information in the digital world becomes critical. ECPA reform would avoid the current absurdity that currently affords online communications and information less protection than physical documents.
Coalition Calls for Swift Passage of USA FREEDOM Act; Express Concerns Over Cybersecurity Information Sharing Act
On September 4, 2014, the Association of Research Libraries joined a coalition of 43 civil liberties, human rights and public interest organizations sent a letter to Senate leadership supporting swift passage of the USA FREEDOM Act (S. 2685) and expressing concerns regarding the Cybersecurity Information Sharing Act of 2014 (CISA, S. 2588).
The letter urges the Senate to pass the S. 2685 in its current form, noting that this version of the USA FREEDOM Act would end bulk collection of records under Section 215 of the USA PATRIOT Act, a provision known as the “library records” or “business records” provision,” as well as under National Security Letter authorities. As the letter explains, S. 2685 also provides for other significant reforms including enhanced transparency, appointing of a special panel of civil liberties and privacy advocates to the FISA court, and limiting the purpose for which call detail records collected under Section 215 may be used.
Given these improvements, the signatories to the letter are “eager for Congress to pass this legislation swiftly and without weakening the bill.” As these groups previously expressed, Congress should not weaken the USA FREEDOM Act through consideration of new mandatory data retention requirements. The letter urges the Senate to make passage of the USA FREEDOM Act (S.2685) a legislative priority for September.
The letter then notes its opposition to and concerns regarding the CISA, pointing out that “Ironically, just as Congress is struggling to pass meaningful surveillance reform to rein in the NSA, the Senate Select Committee on Intelligence has approved a problematic bill that would give the NSA even more access to American’s data.” Advocacy groups have previously written to Congress and the President opposing CISA because the bill would pose serious threats to privacy by allowing information to automatically be disseminated to the NSA and other government agencies.
The letter concludes:
We therefore urge the Senate to swiftly pass the USA FREEDOM Act (S. 2685) without any amendments that would weaken its protections or create any new data retention mandates, and without taking up the Cybersecurity Information Sharing Act (S. 2588 in its current form. The Senate cannot seriously consider controversial information-sharing legislation such as CISA without first completing the pressing unfinished business of passing meaningful surveillance reform.
Senator Leahy Introduces New Version of USA FREEDOM Act, Includes Significant Improvements Over House Version
On July 29, 2014, Senator Leahy (D-VT) re-introduced a new version of the USA FREEDOM Act, co-sponsored by Senators Lee (R-UT), Durbin (D-IL), Heller (R-NV), Franken (D-MN), Cruz (R-TX), Blumenthal (D-CT), Udall (D-NM), Coons (D-DE), Heinrich (D-NM), Markey (D-MA), Hirono (D-HI), Klobuchar (D-MN), and Whitehouse (D-RI). ARL supports this version, which includes major improvements over the version passed in the House (H.R. 3361) on May 22, 2014, including more effective language to end bulk collection and protect civil liberties and strengthened transparency provisions. ARL has signed on to two letters supporting the new version of the USA FREEDOM Act, including one that focuses on the enhanced transparency provision and one that addresses the bill more comprehensively. Both letters urge Congressional leadership to act swiftly and pass the new version, without any dilution or amendment.
The version that passed the U.S. House of Representatives represented a significantly watered down version after changes were made by the House Rules Committee on the eve of the floor vote on the bill. Although the House passed the bill, half of the original House co-sponsors to the USA FREEDOM Act withdrew their support and opposed the weakened version because it did not go far enough in curtailing the Government’s ability to conduct bulk collection and failed to protect privacy and civil liberties in the same manner as prior versions. Organizations that originally supported the USA FREEDOM Act withdrew support for the House version and urged the Senate to ensure meaningful reform.
Leahy’s version narrowly defines a “specific selection term” in an effort to effectively curb bulk collection. It clearly prohibits the collection of broad swaths of information under Section 215—the provision known as the “business records” or “library records” provision—such as all information related to a broad geographic region (such as a city, state, zip code or area code). It also enhances minimization procedures, requiring the government to delete data it has collected on individuals that are not targets of the investigation or contacts of such individuals and limits the purpose for which call detail records may be generated.
The new version of the bill would also make several reforms to the FISA Court, such as requiring that unclassified summaries of FISC opinions include information necessary to understand the impact on civil liberties. It would also require disclosure of FISC opinions of “new construction or interpretation of the term ‘specific selection term.’” It provides further protections by providing for a Special Advocate position charged with protecting privacy and civil liberties and requires that the Office of the Special Advocate has access to relevant legal precedent and materials necessary to participate in FISC proceedings.
Finally, Leahy’s new version improves on the House version through enhanced transparency provisions. It requires the government to report on the number of U.S. persons whose information was collected and number of searched conducted under Section 215. It reduces the time a company must wait after receiving a FISA order before reporting on it from two years to one year.
A detailed comparison between the House-passed version and Senator Leahy’s new version is available through the Center for Democracy and Technology.
LCA Statement on Copyright Remedies for House Judiciary Subcommittee Hearing
On July 24, 2014, the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet continued its copyright review with a hearing on copyright remedies. Witnesses at this hearing include Mr. David Bitkower, Acting Deputy Assistant Attorney General in the Criminal Division, U.S. Department of Justice; Mr. Steven M. Tepp, President and Chief Executive Officer, Sentinel Worldwide; Mr. Matt Schruers, Vice President for Law and Policy, Computer & Communications Industry Association; Mr. Sherwin Siy, Vice President of Legal Affairs, Public Knowledge; and Ms. Nancy E. Wolff, Partner, Cowan DeBaets, Abrahams & Sheppard LLP.
The Library Copyright Alliance filed a statement for the hearing, focusing on the problems with statutory damages. The statement notes that the existing safe harbor requiring a court to remit statutory damages when a library, archive, educational institution or public broadcasting entity believed and had reasonable grounds to believe that its use constituted fair use applies only to the reproduction right. The statement recommends an update to reflect the digital era so that this safe harbor applies to any type of use, including those implicating performance, display, distribution or derivative work rights.
Importance of Net Neutrality for Libraries and Higher Education
The comments point out that library and higher education organizations depend on the open Internet, or net neutrality, to carry out their missions and ensure the protection of freedom of speech, education achievement and economic growth. It notes that the essential character of the Internet is an open platform, promoting “the open exchange of information, intellectual discourse, research, free speech, technological creativity, innovation and learning.” The comments recommend that the FCC’s final order recognize the value of net neutrality for education, research and freedom of speech.
Specifically, the comments note that public libraries provide Internet access to their patrons, a particularly necessary service for the approximately one-third of the population that do not have broadband access at home but rely on such access for homework assignments, to locate e-government services, find health information, apply for jobs, share digital content and other activities. Higher education institutions make Internet access available to their students, faculty, researchers and administration. Many students today are also involved in distance learning—including MOOCs—or hybrid courses and therefore depend on the availability of high-bandwidth Internet access. Degradation of Internet transmission speeds would detrimentally impact these populations and activities.
The comments also provide seven specific examples of projects and services by libraries and higher education institutions that provide important access to information and culture but depend on net neutrality to disseminate. Three of these examples include:
The National Library of Medicine (NLM), the world’s largest medical library, provides a vast amount of information-based services, ranging from video tutorials to downloads of large genomic datasets. NLM provides valuable information and data to the public amounting to trillions of bytes each day disseminated to millions of users. Without rules to protect the open Internet, NLM’s ability to provide access to this important information would be jeopardized.
Columbia University created the 9/11 Oral History Project, focusing on the aftermath of the destruction of the World Trade Center. The Project includes over 900 recorded hours on digital media. More than half of the collection is open and available to the public, and the entire archive will eventually be available for study and research. This content is currently used in New York City K-12 public schools.
After receiving over 2,500 boxes of records and documents and 12,000 promotional photographs from the New York World’s Fair of 1939 and 1940, the New York Public Library (NYPL) digitized the content and makes it available online. It provided the material in a free app that was later named one of Apple’s “Top Education Apps” of 2011 and is used in New York City K-12 public schools.
Specific Proposals to Strengthen the Proposed Rules
The joint comments lay out several specific proposals to strengthen those proposed rules published in the FCC’s NPRM. The FCC could strengthen the rules and address the concerns of libraries and higher education by:
Clarifying the definition of end-user customers to ensure that libraries, institutions of higher education and other public interest organizations are covered.
Prohibiting paid prioritization, which would divide the Internet into “fast lanes” and “slow lanes.” The comments note that libraries and institutions of higher education may not be able to afford the additional fees to use the “fast lanes.”
Clearly stating that the FCC’s net neutrality rules apply to public broadband providers and not to private networks, such as those provided by many colleges and universities (which provide private end user networks that are not available to the general public), or end users.
Applying the rules in a technology-neutral manner applicable equally to fixed and mobile services. Internet users are increasingly dependent on mobile devices, and often switch between fixed and mobile services.
Clarifying disclosure rules to ensure that information regarding data caps and bandwidth speeds are displayed prominently and clearly to consumers and edge providers.
Establishing a firm “no blocking” rule to bar providers from interfering with the consumer’s choice of content, application or services. The comments express concerns with the FCC’s proposal to include a definition of a “minimum level of access” or “minimum level of service,” and instead recommends that a no-blocking rule prohibit a provider from blocking access to any lawful website, application or service chosen by the end user, subject to reasonable network management. This rule is governed by the choice made by the end user and therefore would not implicate concerns regarding broadband providers being regulated as common carriers.
Authorizing the proposed enforcement ombudsperson “watchdog” to advocate for the interests of libraries, colleges and universities, in addition to consumers, start-ups and small businesses.
Legal Basis for the FCC’s Actions
The comments clearly note that if the FCC reclassifies broadband Internet service as a Title II “common carrier” service, it would provide valuable certainty in the market place and ensure that the goal of prohibiting discrimination. However, if the FCC chooses not to reclassify and use its Title II authority, it may act under its Section 706 authority.
The comments recommend, however, that should the FCC exercise its Section 706 authority rather than choosing to reclassify broadband Internet services, the agency should use an “Internet reasonable” standard rather than a “commercially reasonable” standard because “a ‘commercially reasonable’ approach could be interpreted to allow any broadband and edge provider to reach a contract to provide “paid prioritization”. If the two companies reach an agreement that they mutually believe to be in their commercial interests, it might be found “commercially reasonable” even if it has the effect of degrading the Internet service used by other parties (such as higher education institutions and libraries) sharing the same network.”
The comments note that an “Internet reasonable” standard would recognize the Internet’s unique character and propose four rebuttable presumptions that the FCC could use to evaluate the reasonableness of an Internet provider’s actions. The following four activities should be considered presumptively unreasonable: 1) requiring approval to carry lawful content, applications or services; 2) allowing paid prioritization; 3) undermining the open architecture of the Internet; and 4) degrading the level of service provided and discouraging investment in greater bandwidth to a non-prioritized party.
The written testimony of four of the five witnesses speaking at the July 15, 2014 House Judiciary Subcommittee Hearing on Moral Rights, Termination Rights, Resale Royalty and Copyright Term, address the issue of copyright term. Notably, none of these witnesses suggest that the current term be extended further and Professor of Law Michael Carroll argues that the current term of protection is too long. Although the other witnesses did not propose extension of copyright, it should be noted that Rick Carnes, President of the Songwriters Guild of America, asserts that the current copyright term in the United States is appropriate and should not be shortened. Although he devotes only a single paragraph to the issue of copyright term, his written testimony nonetheless contains statements that are misleading or untrue.
Myth 1: The current copyright term represents the international standard.
Mr. Carnes’ written testimony asserts that “suggestions that the United States should break with the rest of the world to reduce the current term of copyright protection (designed specifically to allow creators to address the economic welfare of their families for a time period limited basically to the lives of their grandchildren) in order to stimulate ‘faster growth of the public domain’ should be rejected outright.”
Fact: The copyright term in the United States extends well beyond the Berne Convention’s standard and beyond the term of protection in the majority of countries.
Many countries’ copyright terms are set by the international agreements to which they are bound. The Berne Convention sets the minimum copyright term as the life of the author plus fifty years. The current term of protection in the United States is set at a period of the life of the author plus an additional seventy years. For corporate works or “works for hire,” the period of protection is set at ninety-five years. These terms far exceed what is required by international law.
Reducing the copyright term to the Berne standard would not “break with the rest of the world” as suggested by Mr. Carnes. The vast majority of countries use the Berne standard of life plus fifty years; there are almost twice as many countries with a period of protection shorter than the current term in the United States than there are countries with a period of life plus seventy years or greater.
Myth 2: The U.S. Copyright Office considers the current copyright term as proper.
Mr. Carnes’ written testimony asserts that the “U.S. Copyright Office, Congress and the United States Supreme Court have considered this issue on numerous occasions and determined that the current term of copyright protection established under Article I Section 8 of the U.S. Constitution is not only proper, but serves the dual purpose of supporting the marketplace of ideas by encouraging professional creativity and bolstering the U.S. economy and balance of trade as well.”
Fact: The U.S. Copyright Office has questioned the value of a lengthy copyright term.
As noted in the LCA statement, Register of Copyrights Maria Pallante has suggested that the current copyright term in the United States may not be beneficial. Ms. Pallante noted in a 2013 speech:
The benefits of a lengthy term are meaningless if the current owner of the work cannot be identified or cannot be located. Often times, this is complicated by the fact that the current owner is not the author or even the author’s children or grandchildren. As the Copyright Office recognized in one of its key revision studies of the 1950s, it seems questionable whether copyright term should be extended to benefit remote heirs or assignees, “long after the purpose of the protection has been achieved.”
The Copyright Office has clearly expressed its concerns regarding copyright terms extending well beyond the life of the author and Mr. Carnes’ assertion that the Copyright Office has determined that a period of life plus seventy years is appropriate is simply untrue.
Further, in recognition of the harms that the 1998 Copyright Term Extension Act has caused, Ms. Pallante has proposed the reintroduction of formalities for the last twenty years of protection.
Myth 3: The Supreme Court has determined the current copyright term is proper.
Mr. Carnes also asserts that the Supreme Court has endorsed the present copyright term as proper, a misreading of Eldred v. Ashcroft.
Fact: The Supreme Court never addressed the question of whether a period of protection of life plus seventy years was appropriate. The Court only upheld the power of Congress to set the term and extend the term retroactively.
The majority opinion in Eldred, while upholding the Copyright Term Extension Act, never addressed the propriety or benefits of the extension itself. Instead, the court addressed “the authority the Constitution assigns to Congress to prescribe the duration of copyrights.” As Justice Stevens’ dissent further points out, the question of “whether the extraordinary length of the grants authorized by the 1998 Act are invalid because they are the functional equivalent of perpetual copyrights is a question that need not be answered in this case because the question presented by the certiorari petition merely challenges Congress’ power to extend retroactively the terms of existing copyrights.”
The Court, by a 7-2 margin, interpreted the term “limited Times” as meaning “confined within certain bounds, “restrained,” or “circumscribed” and found that extending the copyright term by twenty years did not exceed this prescription. The majority then noted that on the question of whether the extension was a “rational exercise of legislative authority conferred by the Copyright Clause … we defer substantially to Congress.” The Court went on to state that the act “reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature’s domain.” Justice Stevens’ dissent notes that, “Fairly read, the Court has stated that congress’ actions under the Copyright/Patent Clause are, for all intent and purposes, judicially unreviewable.”
Notably, the Court states that in finding that the extension was a rational exercise of authority, “we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be.” The majority never decides whether the extension to the present term of life plus seventy is appropriate and could, arguably, be interpreted as suggesting that the extension might be unwise.
While neither the majority nor Justice Steven’s dissent address the appropriateness of the copyright term extension, Justice Breyer’s dissent vigorously opposes the extension as violating the Constitutional rationale of the intellectual property system:
The economic effect of this 20-year extension—the longest blanket extension since the Nation’s founding—is to make the copyright term not limited, but virtually perpetual. Its primary legal effect is to grant the extended term not to authors, but their heirs, estates or corporate successors. And most importantly, its practical effect is not to promote, but to inhibit, the progress of “Science”—by which word the Framers meant learning or knowledge.
The statement notes that the Constitutional rationale for intellectual property protection is “to promote the Progress of Science and useful Arts, by security for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The Supreme Court has interpreted this rationale as having an “ultimate aim … to stimulate creativity for the general public good.”
The statement then goes through the history of copyright term in the United States, which was initially a limited period of fourteen years, with the possibility of renewal for an additional fourteen years, a period far shorter than the current term of the life of the author plus an additional seventy years. It also points out that while patents and copyrights originally had similar periods of protection, the patent term has increased by only 43 percent while the copyright term has increased by almost 580 percent.
Copyright term extensions hinder the goal of “stimulat[ing] creativity for the general public good” by shrinking the public domain. The public domain is essential to allowing access to books and texts, and also promoting future creativity by providing raw materials upon which artists and authors can build. Longer copyright terms escalate the costs of access to knowledge by requiring licenses for a greater period of time and increasing the resources that must be devoted to finding the rightsholder.
The statement also points out that a copyright term that extends beyond the life of the author exacerbates the orphan works problem. Maria Pallante, Register of Copyrights, has noted that the Copyright Office recognized in a study “it seems questionable whether copyright term should be extended to benefit remote heirs or assignees, ‘long after the purpose of the protection has been achieved.’”
Additionally, the statement calls for evidence based copyright policy. It points to the independent Hargreaves report commissioned by the United Kingdom as well as an article published in the Review of Economic Research on Copyright Issues, both of which point out that the economic evidence does not support copyright term extensions, including the current lengthy term that exists in the United States.
Finally, the statement recommends that Congress explore ways to shorten the present term or mitigate its harms, for example, by considering Ms. Pallante’s proposal to reintroduce formalities for the final twenty years of copyright protection.
Library Copyright Alliance files amici brief in Authors Guild v. Google
On July 8, 2014, the Library Copyright Alliance filed an amici brief in the Court of Appeals for the Second Circuit in Authors Guild v. Google in favor of Google’s transformative use in creating Google Book Search (GBS). The Southern District of New York previously ruled in favor of Google, finding that GBS provided significant public benefits and constituted fair use.
The brief notes that GBS has become an essential research tool for LCA members and includes numerous examples and quotations—both in the text of the brief and accompanying appendix—from librarians explaining the value of the snippet display provided by Google. The snippet display allows librarians and researchers to identify materials that are hard to find, conduct research, developing curricula and collections, make determinations on whether to request particular books through interlibrary loans, and checking citation.
The snippet display is a critical function that makes GBS a valuable research tool yet does not substitute for the full text, displaying only three short snippets in response to a query. The brief notes that the Appellants in the case negotiated and agreed to a settlement (ultimately rejected by Judge Chin, leading to this continuing litigation) which would have allowed Google to provide a free “Preview” service that would have allowed display of up to twenty percent of the book’s text—far more than the GBS snippet display. The brief points out that “If display of 20 percent of a book did not cannibalize sales of the book, then surely display of a few snippets of a book would not do so either.”
The third section of the brief discusses the relationship between Section 108 and fair use, addressing the argument made by the amici for Authors Guild . The brief points out that the Second Circuit’s own ruling just a month prior in Authors Guild v. HathiTrust rejected the argument that the existence of Section 108 forecloses reliance on fair use. Section 108 not only includes an explicit savings clause, but the legislative intent clearly demonstrates that specific exceptions codified in the Copyright Act “do not limit the availability of fair use for conduct that does not fall within its scope.” Legislative history in both the Senate and the House discuss the relationship between Section 108 and fair use, noting that Section 108 was designed to give libraries a safe harbor and rights in addition to fair use.
Finally, the brief notes that the copies Google made available to partner libraries constituted fair use. Quoting the district court, the brief points out that “the purpose of the library copies is to advance the libraries’ lawful uses of the digitized books consistent with the copyright law.” Even if the Second Circuit evaluates Google’s purpose, rather than the libraries’ purpose, the brief points out that GBS did not affect the market because libraries would not have paid licensing fees to digitize books in their collections; libraries do not have the budgets to pay for digitization licenses for legacy materials nor is there an efficient mechanism to pay for such licensing. The brief emphasizes that a potential market for extended collective licensing agreements are speculative and do not constitute existing or potential traditional markets.
35 Organizations Write to TPP Ministers Opposing Lengthy Copyright Terms
On July 9, 2014, ARL joined thirty-four other organizations in sending a letter to ministers of the Trans-Pacific Partnership (TPP) negotiating parties opposing the copyright term of life plus seventy years proposed by the United States. These organizations, representing libraries, archives, authors, educators, students, digital rights advocacy groups, and technological innovators, note that this extended copyright term threatens the public domain. The letter notes that “the extension of the copyright term results in a net welfare loss to society, and effectively amounts to a transfer of wealth to a small number of multinational copyright-holding companies … This transfer of welfare in favor of large corporate copyright owners will come at the cost of those who depend upon access to copyright works that would otherwise be in the public domain—libraries, students, artists, writers, and millions of other people.”
TPP negotiators are currently meeting behind closed doors in Ottawa, Canada, in an effort to finalize negotiations for the large regional trade agreement which now has twelve negotiating parties: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States.
District Court Releases Order Upholding Fair Use of West Publishing and Reed Elsevier in White v. West Publishing
On July 3, 2014, the District Court for the Southern District of New York issued its memorandum and order in White v. West Publishing following its grant of summary judgment for the defendants in February 2013 finding in favor of fair use. The case involved a claim by attorneys Edward White and Kenneth Elan who claimed copyright infringement after West Publishing and Reed Elsevier placed legal briefs written by White and Elan into their Westlaw and Lexis databases.
In creating the databases, West Publishing and Reed Elsevier converts the filed legal documents into a text-searchable electronic file and is tagged with metadata to allow users to find and retrieve documents more easily. The editors also link the document to decisions and other filings in related cases and create links to authorities cited.
In finding in favor of fair use, Judge Rakoff evaluated the four statutory fair use factors:
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
In examining each of these factors, the district court found that three of the four weighed in favor of fair use, while one factor was neutral.
On the first factor, the district court found that the use of the briefs was transformative because the use of the briefs in the database was to create an interactive legal research tool, a “sharply different objective” than the original purpose of the briefs. Additionally, the district court noted that the converting, coding and linking of the documents “add something new, with a further purpose or different character” than the original. The district court pointed out that while the use was commercial, the highly transformative nature of the use diminished the importance of the character of the use.
With respect to the second factor, the district court noted that the briefs represented presentations of fact and law and therefore this factor weighed in favor of fair use.
The district court noted that with regard to the third factor, West and Lexis copied the entire work. However, the “defendants only copied what was reasonably necessary for their transformative use, and … the third factor is therefore neutral.”
Finally, on the fourth factor, the district court found no market harm because the databases do not provide a substitute for the original market. The court stated, “West’s and Lexis’s usage of the briefs is in no way economically a substitute for the use of the briefs in their original market: the provision of legal advice for an attorney’s clients … Furthermore, no secondary market exists in which White could license or sell the briefs to other attorneys, as no one has offered to license any of White’s motions, nor has White sought to license or sell them.” The district court also rejected the idea that a potential market exists to license briefs.
Although the district court does briefly reference potential markets, it focuses on the market effect on the original market thereby following the recent Second Circuit opinion in Authors Guild v. Hathitrust which stated that the analysis of the fourth factor “is concerned with only one type of economic injury to a copyright holder: the harm that results because the secondary use serves as a substitute for the original work.” A limited focus on the harm to the market for the original work suggests that lost licensing revenue is not relevant in the fair use analysis when the use is transformative and does not impact the original market.
Jonathan Band's Analysis of the Second Circuit's HathiTrust Decision and What It Means for Libraries
Jonathan Band of policybandwidth recently released an analysis of the Second Circuit’s opinion in Authors Guild v. Hathitrust and what the decision means for libraries. His analysis is available here.
The library community welcomed the decision of the U.S. Court of Appeals for the Second Circuit in Authors Guild v. HathiTrust, __ F. 3d __, 2014 WL 2576342 (2nd Cir. 2014). The decision has implications for libraries that go far beyond the specific facts of the case. This paper offers some preliminary thoughts on what these implications may be.
India First to Ratify the Marrakesh Treaty for the Blind; 79 Total Signatories to the Treaty
The World Intellectual Property Organization (WIPO) Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled now has seventy-nine signatories. This treaty, also known as the “Marrakesh Treaty” or “Treaty for the Blind” was a significant achievement as the first WIPO treaty dedicated to limitations and exceptions, focusing on the rights of users rather than increasing the rights of rightholders. Significantly, India became the first country to ratify the treaty on June 24, 2014 (deposit with WIPO on June 30, 2014).
The treaty sets forth minimum standards for limitations and exceptions designed to facilitate access to accessible format works for persons who are blind, visually impaired or otherwise print disabled. It would also permit cross-border sharing of these accessible format works, allowing countries to avoid unnecessary duplication of efforts in the creation of accessible format works and also facilitate the importation of works in other languages. For example, a popular title would not have to be created in accessible format work in the United States, then again in Canada, then again in the United Kingdom, then again in Australia, and so forth. It could be created in one English speaking country then shared for the benefit of persons who are visually impaired in other English speaking countries. Persons in the United States could also benefit from this treaty through the importation of accessible format works in languages other than English, either to benefit those residing in the United States whose native language is not English, or to benefit those who are learning a foreign language. Tiflolibros in Argentina, for example, has a large library of Spanish language accessible format works that could be shared with beneficiaries in the United States if the treaty entered into force. More detailed information about the treaty is available in the “Users Guide to the Marrakesh Treaty.”
There was a recent flurry of signing activity due to Article 17 of the Marrakesh Treaty, which closed the treaty to signing one year after adoption of the treaty; June 27, 2014 was the last date for a country to sign. Signing the treaty signals that a country agrees with the treaty and essentially constitutes an endorsement of the instrument. While it does not create binding legal obligations to adhere to the requirements of the treaty, it does oblige the signatory from undermining the treaty’s objectives. Countries that have signed still need to ratify the treaty in order to be bound by it, and twenty ratifications are required before the Marrakesh Treaty will enter into force. Although the treaty is now closed to new signatures, other countries may join the treaty through a one-step process acceding to the treaty (rather than the two-step process of signing then ratifying).
A round of applause should be given to India for being the first (and currently only) country to ratify the Marrakesh Treaty, though it is expected that Kenya will soon follow. India’s swift ratification, within one year after the treaty’s adoption, is a record for any WIPO treaty and signals the importance of the objectives of the treaty.
In addition to the excellent news of the first ratification of the Marrakesh Treaty, there have also been nineteen new signatories over the last two months, twelve of which occurred over the last week. Notably, the EU signed the Marrakesh Treaty on April 30, 2014, and a number of EU member countries followed suit. The new signatories include: Argentina, Australia, Austria, Belgium, the Czech Republic, the European Union, Finland, France, Germany, Greece, Guatemala, India, Iran, Ireland, Mexico, Norway, Poland, South Korea and Slovenia. The United States signed last year on October 2, 2013.
The treaty initially opened for signature at the adoption and signing ceremony of the diplomatic conference on June 28, 2013. Fifty-one countries signed at the adoption and signing ceremony, a record number of signatories on opening day for any WIPO treaty. The full list of the seventy-nine signatories is available here. While this large number of signatories demonstrates the overwhelming support for the Marrakesh Treaty and is a reason for celebration, at least twenty of these signatories must take the next step and sign the treaty so that it may enter into force.
With India depositing its instrument of ratification, only nineteen more are needed. The United States, which already has robust limitations and exceptions to benefit persons who are visually impaired, should demonstrate leadership in this area and be one of the first twenty ratifications.
Broad Coalition Opposes Cyber Information Sharing Act of 2014
On June 26, 2014 the Association of Research Libraries joined with thirty-four other organizations opposing the Cyber Information Sharing Act of 2014 (CISA). This broad coalition sent a letter to Majority Leader Harry Reid (D-NV), Minority Leader Mitch McConnell (R-KY), U.S. Senate Select Committee on Intelligence Chairman Dianne Feinstein (D-CA), and U.S. Senate Select Committee on Intelligence Vice Chairman Saxby Chambliss (R-GA) expressing concerns that the bill would create a loophole in existing privacy laws and does not prevent the government from requesting “voluntary” cooperation from private companies in sharing information, including content of communications.
The letter raises a number of concerns, including threats the bill poses to whistleblowers and transparency. Additionally, with respect to specific privacy concerns, the letter notes that the bill creates a “danger of a potential end-run around the Foreign Intelligence Surveillance Act (“FISA”), the Electronic Communications Privacy Act (“ECPA”), the Fourth Amendment and other crucial privacy protections [which] is compounded by the potentially broad immunity conferred on sharing ‘in accordance’ with the act, and the additional absolute defense when sharing occurs in violation of the act but in ‘good faith’ reliance on the mistaken belief that the sharing is lawful.”
This letter makes several specific recommendations:
Ensure that DHS is the custodian of cybersecurity information voluntarily shared by the private sector, and has the authority to prevent sensitive information from being transmitted to the intelligence community and military without appropriate privacy protections;
Ensure that information shared is “reasonably necessary” to describe a cybersecurity threat;
Restrict the use of information received under the sharing authority to actual cybersecurity activities, the prosecution of cybercrimes, the protection of individuals from imminent threat of physical harm or death, or to protect children from serious threats;
Limit FOIA restrictions to those provided by 6 U.S.C. §§ 131-34 (2012).14
Require public disclosure of annual reports from relevant inspectors general describing what information is received, how it is used, who gets it and how it is treated to protect privacy.
Include a sunset provision in the bill keyed to these reports, which will allow the measure to expire if abuse or misuse is disclosed;
Allow individuals harmed by inappropriate sharing to sue the government if it intentionally or willfully violates the law.
WIPO Standing Committee on Copyright Limitations and Exceptions Meeting This Week
This week, the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) will meet from June 30-July 4. The agenda for this session of SCCR includes discussion of broadcasting, limitations and exceptions for libraries, and limitations and exceptions for educational and research institutions and for persons with other disabilities.
At the last meeting of SCCR which took place from April 28-May 2, the EU blocked the conclusions of the meeting, refusing to agree to language referring to “text-based” work on limitations and exceptions for libraries. Ultimately, the Chair of SCCR released the conclusions as a Chair’s document, rather than as the agreement of the WIPO member states. Because WIPO operates on the basis of consensus, a single country or group can block action at WIPO, including for example, blocking adoption of conclusions or agreement to hold a diplomatic conference. By blocking the conclusions, the EU has potentially made it more difficult to move forward on work on limitations and exceptions at SCCR.
U.S. House of Representatives Passes Amendment to End NSA Backdoor Spying
On June 19, 2014, the U.S. House of Representatives voted 293-123 to pass an amendment to the Defense Appropriations bill to cut funding for NSA backdoor spying under Section 702 of the FISA Amendments. Current NSA practices include the collection of vast amounts of information and, provided that there is a foreign “target,” the NSA can search these collections for communications of U.S. persons, thus providing a “backdoor” method of conducting surveillance on Americans. This Amendment, originally primarily sponsored by Representatives Massie (R-KY), Sensenbrenner (R-WI) and Lofgren (D-CA), would restore Fourth Amendment protections by cutting funding of current NSA practices of conducting these warrantless searches.
Majority of House of Representatives Co-Sponsor Email Privacy Act; ARL Applauds Milestone in ECPA Reform Efforts
The Association of Research Libraries (ARL) is pleased that on June 17, 2014, the Email Privacy Act, H.R. 1852, reached a milestone of 218 co-sponsors, representing a majority of support from the members of the House of Representatives.
The Email Privacy Act, originally introduced by Rep. Yoder (R-KS) on May 7, 2013, would update an outdated law known as the Electronic Communications Privacy Act (ECPA) and ensure that important Fourth Amendment privacy protections extend to online communications. ECPA was enacted in 1986 and has not kept pace with evolving technologies. The law permits government agencies to access e-mails, documents and other communications that are older than 180 days and stored online without obtaining a warrant, affording online communications with less protection than hard copy documents stored in a filing cabinet.
As libraries and universities move services into the cloud and more communications take place online, it is critical that Fourth Amendment protect information long considered to be private—including what individuals are reading or researching, and to whom they are talking—even in the digital world. The growth of the Internet has launched new forms of communications and changed the way individuals interact since ECPA’s enactment in 1986. The Email Privacy Act would change the absurd results of ECPA and require agencies to obtain a warrant for content, thereby ensuring that Fourth Amendment protections extend to online documents and communications.
A majority of the House of Representatives clearly supports the restoration of these important privacy rights and ARL urges Congress to act quickly to pass the Email Privacy Act. There is no logical reason to grant greater privacy protection for hard copy documents or traditional forms of communication than for documents stored in the cloud or e-mail and social media communications. The Email Privacy Act provides a practical solution to this absurdity.
Second Circuit Affirms Fair Use in Authors Guild v. HathiTrust
On June 10, 2014, the Court of Appeals for the Second Circuit affirmed the lower court decision in Authors Guild v. HathiTrust in favor of HathiTrust Digital Library’s (HDL) motions for summary judgment, finding that two of the three uses by HDL (creating a full-text search database and providing access to the print disabled) constituted fair use and remanding the issue of the third use (preservation) back to the district court to determine the standing of the plaintiffs to bring the claim.
The Second Circuit began its fair use analysis by noting that while the Copyright Act certain exclusive rights, “there are important limits to an author’s rights to control original and derivative works. One such limit is the doctrine of ‘fair use,’ which allows the public to draw upon copyrighted materials without the permission of the copyright holder in certain circumstances.” The court then detailed numerous examples of fair use that have been upheld by various courts, including district courts, appellate courts and the Supreme Court of the United States before going through the three HDL uses at issue.
Fair Use Factors
The Second Circuit summarized the four fair use factors codified under Section 107 of the Copyright Act and explained how these factors are evaluated. These factors include:
1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2) the nature of the copyrighted work;
3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4) the effect of the use upon the potential market for or value of the copyrighted work.
With respect to the first factor, the court noted the importance of whether the use is considered “transformative” which it defines as “something more than repackage[ing] or republish[ing] the original copyrighted work. The inquiry is whether the work ‘adds something new, with a further purpose or different character, altering the first with new expression, meaning or message …’” (quoting Campbell, 510 U.S. 16 579)). The Second Circuit rejected the district court’s implication that a use is transformative if it adds value or utility, instead emphasizing that a transformative work is “one that serves a new and different function from the original work and is not a substitute for it.”
The court noted that the second factor evaluates the nature of the work and recognizes a greater need to disseminate factual works than fiction.
The third factor addresses the amount of the copyrighted work used and the court noted, “we assess the quantity and value of the materials used and whether the amount copied is reasonable in relation to the purported justification for the use.”
Finally, citing the Supreme Court case, Harper v. Row, the Second Circuit called the fourth factor, which assesses the impact of the use on the potential market, the “single most important element of fair use.” The court noted that “[t]o defeat a claim of fair use, the copyright holder must point to market harm that results because the secondary use serves as a substitute for the original work.”
Full Text Search
The court first evaluated whether HDL’s full text search constitutes fair use. The court explains the program, noting that the Libraries create digital copies of the entire books, but HDL does not allow viewers to view any portion of the books searched, but only to identify where a search term appears in a particular book. In evaluating the four fair use factors, the court concluded that three of the four factors favor fair use and upheld the district court’s determination that the full-text search constitutes fair use.
The Second Circuit found that the full-text search is a “quintessentially transformative use” as it is “different in purpose, character, expression, meaning, and message from the page (and the book) from which it is drawn.” The court further noted that the full-text search is more transformative than other uses previously upheld as fair use by the Second Circuit as well as other circuits.
With respect to the second factor, the court did not find it to be dispositive, noting that this factor may be limited in value where a creative work is being used for a transformative purpose.
Turning to the third factor, the Second Circuit pointed to precedent that copying a work in its entirety is sometimes necessary. It found that it was “reasonably necessary” for HDL to copy the entirety of the work in order to enable the full-text search function. Accordingly, this factor weighed in favor of HDL.
Discussing the fourth factor, the Second Circuit reminded that the analysis “is concerned with only one type of economic injury to a copyright holder: the harm that results because the secondary use serves as a substitute for the original work.” Here, the Second Circuit rejected the contention that market harm has occurred finding the full-text search does not substitute for the original. The court stated that it is therefore “irrelevant” that libraries may be willing to pay licensing fees to enable this type of transformative use. The court also rejected the plaintiffs’ suggestion that the risk of a security breach would impact the market, noting that HDL undertook extensive security measures and it could find no basis to assume such a breach would occur. Consequently, the fourth factor weighs in favor of fair use and, taken together, that the overall analysis of the four factors results in a finding that the full-text search database is fair use.
Access to the Print Disabled
Turning to HDL’s use of the works to facilitate access to the print disabled, the Second Circuit concluded that this use is also protected under fair use.
With respect to the first factor, the Second Circuit rejected the district court’s finding that creation of accessible format works is transformative. The Second Circuit equated the creation of an accessible format with a derivative work, but notes that even absent a finding of transformative use, a defendant may still satisfy the first factor. In finding that the first factor favors access to the print disabled, the Second Circuit first quoted the Supreme Court’s decision in Sony Corp of America which stated that “Making a copy of a copyrighted work for the convenience of a blind person is expressly identified by the House Committee Report as an example of fair use, with no suggestion that anything more than a purpose to entertain or to inform need motivate the copying.” The Second Circuit also pointed to legislative history of the Section 107 of the Copyright Act, the enactment of the Section 121 of the Copyright Act, also known as the Chafee Act, and Congressional concern for the disabled reflected by the passage of the Americans with Disabilities Act, as evidence that the first factor weighs in favor of fair use.
While the court found that the second favor weighed against fair use, it noted that such a finding is not determinative in the fair use analysis.
Turning to the third factor, the court found it reasonable for HDL to retain text and image copies to facilitate access to the print disabled. It noted that the text copies are necessary to enable text-to-speech capabilities, but that the image copies are also of use and value for disabled patrons.
Finally, the court found that the fourth factor weighs in favor of a finding of fair use, noting that the market for accessible format works is insignificant and publishers generally do not make their books available in specialized formats. Evaluating the four factors together, the Second Circuit found that providing access to the print disabled constitutes fair use.
The Second Circuit declined to rule on the issue of whether HDL’s storage of digital copies for preservation constitutes fair use on the basis of lack of standing or live controversy. The court stated that the record before the district court did not demonstrate whether the plaintiffs own copyrights in the works where a replacement copy would be unobtainable at a fair price and thus subject to copying by the Libraries for the purpose of creation of a replacement copy in case of loss or destruction. The court stated that “[b]ecause the record before us does not reflect the existence of a non-speculative risk that the HDL might create replacement copies of the plaintiffs’ copyrighted works, we do not believe plaintiffs have standing to bring this claim, and this concern does not present a live controversy for adjudication.” The Second Circuit thus vacated the district court’s judgment regarding this issue and remanded the standing issue to the district court. In remanding this issue back to the district court, the Second Circuit did not suggest that preservation could not be considered fair use, but instead simply expressed skepticism that the plaintiffs had standing to bring this claim.
Orphan Works Project
The Second Circuit upheld the district court’s finding that the issue regarding the orphan works project was not ripe for adjudication. Because the orphan works project was suspended with no notice that the University of Michigan intends to revive it, there is no impending harm. The court further noted that there is no hardship to the plaintiffs in not deciding this issue because “it is far from clear that the University of Michigan or HathiTrust will reinstitute the OWP in a manner that would infringe the copyrights of any proper plaintiffs. If that occurs, the Authors may always return to court.”
Greg Cram of The New York Public Library Represents Library Perspective on the First Sale Doctrine at House Judiciary Subcommittee Hearing
On Monday, June 2, 2014, the U.S. House Committee on the Judiciary, Subcommittee on Courts, Intellectual Property and the Internet continued with its copyright review with a [field hearing held in New York, NY](Greg Cram of The New York Public Library to Represent Library Perspective on the First Sale Doctrine at House Judiciary Subcommittee Hearing). This hearing focused on the first sale doctrine, a principle that provides that after the first sale of a lawfully made copy of a copyrighted work, the copyright holder’s distribution rights in that particular copy terminate.
The panel included nine witnesses: Stephen M. Smith, President and CEO of John Wiley & Sons, Inc.; John Ossenmacher, CEO of ReDigi; Ed Shems of edfredned illustration & graphic design; Jonathan Band representing the Owner’s Rights Initiative, Matthew B. Glotzer, Greg Cram, Associate Director of Copyright and Information Policy at The New York Public Library; Sherwin Siy, Vice President of Legal Affairs at Public Knowledge; John Villasenor, Professor of Electrical Engineering and Public Policy at UCLA Luskin School of Public Affairs; and Emery Smith, Counselor for BSA – The Software Alliance.
The Library Copyright Alliance endorsed Cram’s statement, which highlights the importance of the first sale doctrine to the mission of libraries. Cram also states support for the Supreme Court’s ruling last year in Kirtsaeng v. John Wiley & Sons, applying the first sale doctrine to a lawful physically copy of a work regardless of the place of manufacture or sale. He also discusses the issue of first sale in the context of the digital marketplace.
Importance of First Sale to Libraries
In his statement, Cram notes that throughout American history, even prior to the founding of the nation, libraries have promoted democratic values by lending books and other materials. In discussing the history of libraries providing access to information, Cram quotes Thomas Jefferson: “I have often thought that nothing would do more extensive good at small expense than the establishment of a small circulating library in every county, to consist of a few well-chosen books, to be lent to the people of the county under regulations as would secure their safe return in due time.”
Cram’s statement points out that Americans borrow books and other materials from libraries 4.4 billion times a year and that per capita circulation grew by 26.1% between 2000 and 2009. Between 2008 and 2012, NYPL saw a 44% increase in circulation with 28 million items circulated in 2012. The vast majority of library collections represent physical copies of works, highlighting the importance of the first sale doctrine, without which library lending would not be possible.
Kirtsaeng v. John Wiley & Sons
In his written testimony, Cram expresses support for the Supreme Court’s ruling in 2013 in Kirtsaeng v. John Wiley & Sons, an opinion which found in favor of international exhaustion, a rule applying the first sale doctrine to lawful copies of copyrighted works regardless of the place of manufacture or sale. Without a rule of international exhaustion, library lending would be seriously threatened as more than 200 million books in U.S. libraries have foreign publishers. Books published by U.S. publishers are often manufactured by printers in other countries, often without any indications on the copyright page of where they were printed. As a result, libraries have no way of knowing whether the books were manufactured domestically or abroad. With large portions of collections manufactured abroad, the Kirtsaeng decision is crucial in allowing libraries to continue their acquisition and circulation policies. Cram concludes, “This is the right rule for libraries and for American consumers, and Congress should not disturb it.”
Digital First Sale
Cram’s statement also explains the complexities of the use of digital resources as libraries increasingly license electronic resources. Licenses set the terms under which a library can make the content available and such terms can vary:
Often, the content is hosted on the server of the publisher or other intermediary, and the library is buying access to the server for its users. An authorized user might be able to download the content onto her computer or device, and digital rights management software will allow the content to reside there until it is automatically deleted in accordance with the license term … Currently, for most popular trade titles a library contracts with vendors to enable users to check out a licensed title based on the print “one copy, one user” model. Libraries must license additional e-book files in order to lend to more than one user at the same time. After a prescribed period, the book is automatically returned and becomes immediately available for digital check out by another user. Other licenses might not allow digital download, but instead permit a user to print out a limited number of pages, e.g., a journal article. Other licenses permit users to access content only when the user is connected to the Internet, e.g., streaming access.
While acknowledging that the digital marketplace has provided certain advantages over the traditional model (libraries no longer need to repair torn pages or place the books on a physical shelf), Cram also points out several drawbacks. Under the print model, a book can remain in a library’s collection until it wears out, but in the digital environment, a library can only provide access when it has paid the licensing fees and the terms of renewal licenses may vary. Cram explains that under some licensing models, arbitrary circulation limits are enforced and that license rates for e-books “can be more expensive than its print counterpart, and sometimes more than ten times the consumer e-book price.” Furthermore, some publishers do not license e-books to libraries at all. The current model also raises serious concerns regarding preservation of materials.
With respect to the digital marketplace, the Cram concludes:
Congress needs to consider whether to prohibit the enforcement of contractual limitations on copyright exceptions in certain circumstances. Significantly, the suite of statutory instruments for amending the UK copyright law that will come into force on June 1, 2014, prohibit the “contracting out” of many exceptions in the research and education context. Congress therefore needs to closely monitor the evolving digital marketplace to ensure that it is sufficiently competitive to provide widespread public access to works.
Boston Library Consortium Calls out Publishers on Price-Gouging
On May 27, 2014, the Chronicle of Higher Education published a letter to the editor entitled, “Ebook Pricing Hikes Amount to Price Gouging.” As a result of announced price increases that appear to be “an experiment in predatory pricing,” the Boston Library Consortium has pledged to address these increases by rewarding those publishers whose prices remain reasonable.
The letter explains that academic libraries now find themselves facing sharp increases in prices for ebooks and that the Boston Library Consortium recently learned that some publishers “planned immediate, significant, and unexplained increases in price,” some of which amounted to a several hundred percent increase. The letter calls the increases “unjustified, … ethically unacceptable, and … economically insupportable.”
The Boston Library Consortium therefore announced it:
[w]ill lower the price ceiling below which individual titles are eligible to be included in our ebook program, we will reduce the availability of back-list titles at high price points, and we will increase the portion of our consortial budget that is allocated to those publishers whose pricing remains reasonable. In this way, we mean to reward what we regard as fair dealing, as we attempt to limit the budget impact of what appears plainly to be price-gouging.
We have no choice but to take action. The acquisitions budgets of academic libraries do not increase at four times the rate of inflation each year, nor are universities scaling back the teaching and research programs their libraries are called on to support. As a library consortium focused both on purchasing partnerships and pragmatic advocacy for research libraries, the Boston Library Consortium believes it must call out these escalating ebook prices as being inimical to access and contrary to fairness. We’ve seen it before, and we should not stand for it again.
We encourage campus leaders to support their libraries in this and other efforts to control costs, and we ask faculty to keep affordability in mind when considering where to publish. Finally, we thank those publishers, primarily university presses, who make ongoing efforts to offer high quality ebooks at affordable prices.
ARL Disappointed by Version of USA FREEDOM Act Passed by US House of Representatives
Today, May 22, 2014, the US House of Representatives voted 303 to 121 to pass H.R. 3361, the USA FREEDOM Act, after amending the bill twice in committees. The original version of the bill, which currently remains unaltered in the Senate, had 151 House co-sponsors. Some of these co-sponsors withdrew their support and opposed the version of H.R. 3361 reported out of the House Rules Committee on May 21, 2014, because of the significant changes made. Even several of those co-sponsors who voted in favor of H.R. 3361 expressed disappointment that the bill did not go far enough in curtailing the Government’s ability to conduct bulk collection of records and failed to protect privacy and civil liberties in the same manner as the prior versions.
The Association of Research Libraries (ARL) supported the version of the USA FREEDOM Act originally introduced in the House and Senate in October 2013, as well as the version altered by the Manager’s Amendment, which was unanimously passed by the House Judiciary Committee and the House Permanent Select Committee on Intelligence on May 15, 2014. After unanimous passage through these two committees, the bill was again altered when reported out of the House Rules Committee. The version passed on the House Floor today represents a significantly watered down version of the USA FREEDOM Act.
ARL, like many civil liberties and privacy groups that previously expressed public support of the bill, has withdrawn its support for the weakened version of H.R. 3361. Although the version of the bill passed by the House today does represent a step toward reform, ARL is disappointed by the changes made at the eleventh hour that remove clarity and weaken protections afforded by earlier versions of the bill.
The prior versions of the USA FREEDOM Act would have ended bulk collection of records under Section 215 of the PATRIOT Act, also known as the “business records” or “library records” provision. The version passed unanimously through the Judiciary and Permanent Select Committees would have ended bulk collection by requiring that records requested and obtained by intelligence authorities be limited to a “specific selection term,” defined as “a term used to uniquely describe a person, entity, or account.” The version that went to the House Floor, however, potentially expands the scope of a specific selection term by ambiguously defining “specific selection term” as “a discrete term…used by the Government to limit the scope of information or tangible things sought.” ARL is concerned that this broad definition does not go far enough in limiting the collection of records, and the ambiguity could result in intelligence authorities overreaching and conducting large-scale collections once again.
Although ARL is disappointed by the version of the USA FREEDOM Act passed by the House today, the Association remains hopeful that the Senate will continue to work from the original version and ensure meaningful reform, including strong privacy protections for communications and records of US persons.
An excellent, in-depth analysis from the Center for Democracy and Technology is available here.
LCA submits additional comments to the Copyright Office on orphan works and mass digitization
On Friday, May 16, 2014, the Library Copyright Alliance submitted additional comments on orphan works and mass digitization in response to the Copyright Office’s notice of inquiry. These comments address the discussions from the March 10-11, 2014 public meeting on orphan works and mass digitzation noting the complete lack of consensus on these issues, the concerns regarding extended collective licensing solutions, and the appropriateness of best practices developed by user communities. The first day’s transcript of the public meeting is available here and the second day’s transcript is available here.
No Consensus on Orphan Works Legislation
In response to the Copyright Office’s request for comments in 2013, LCA noted that the opinions submitted represented diverse and wide-ranging opinions, suggesting that it would be extremely difficult to find consensus on these issues. The public meeting highlighted the continued diversity of opinion and “the divisions between different communities may be even deeper now than before.” The additional comments filed by LCA summarize the comments and divisions made during the panels.
LCA’s additional comments point out that there was hostility during the public meeting which, “exposed a basic divergence concerning the correctness of fair use decisions over the past decade. Indeed, one rights holder representative compared the recent fair use case law to Plessy v. Ferguson, suggesting that these fair use holdings were as legally and morally flawed as the Supreme Court’s 1892 ruling upholding the ‘separate but equal’ doctrine. The inflammatory nature of this analogy was exceeded only by another rights holder representative threatening three times during the course of one panel to sue libraries …”
Extended Collective Licensing
The LCA comments note that unlike the other topics discussed, the discussion regarding extended collective licensing (ECL) seemed to be in agreement that ECL would not be an effective solution to issues relating to mass digitization. The comments submitted by LCA summarize the discussions from the public meeting, which highlighted the problems of collecting societies. Additionally, the LCA statement points to comments made with respect to the value-add of mass digitization projects undertaken by libraries and benefits mass digitization has provided for persons who are blind or print disabled.
LCA’s additional comments also cover statements made regarding best practices at the public meeting, pointing out that “representatives of libraries, archives and documentary filmmakers noted that the best practices developed by their communities provided useful guidance concerning the application of fair use to activities relating to orphan works and mass digitization.”
The comments also address the arguments by right holders that these best practices do not have validity because they were not developed in consultation with right holders. LCA notes that “To the contrary, codes of fair use best practices developed by specific communities do have legal significance” and that community use may help judges make fair use determinations. Furthermore, the comments point out that the best practices “are not intended to be negotiated compromises that take the place of legislation. Rather, they are intended to be expressions of norms and customs relating to specific uses in specific communities.” Additionally, negotiations around best practices on these issues with rightholders are likely to be futile.
LCA’s comments highlight ARL’s Code of Best Practices in Fair Use for Academic and Research Libraries which provide nuanced fair use guidance for libraries in a variety of circumstances, including situations relating to orphan works and mass digitization. These situations include, for example, addressing preservation of at-risk items; creating digital collections of archival and special collection materials; creating databases to facilitate non-consumptive research uses; and collecting material posted on the World Wide Web and making it available.
Web Accessibility Toolkit for Research Libraries Launched by ARL
On the third annual Global Accessibility Awareness Day (#GAAD), May 15, 2014, the Association of Research Libraries launched a new resource for the library community—a Web Accessibility Toolkit for research libraries. ARL’s toolkit shares the fundamental goal of GAAD which is to ”raise the profile” of digital accessibility and provide resources for improving access to information to “the broadest audience possible.” The toolkit aims to:
Promote the principles of accessibility, universal design, and digital inclusion.
Help research libraries achieve digital accessibility.
Connect research libraries with the tools, people, and examples they need to provide accessible digital content.
The lead author on the Web Accessibility Toolkit was Molly Schwartz, a member of the inaugural class of the National Digital Stewardship Residency (NDSR) program who was in residence at ARL in 2013–2014. The NDSR program is a deeply valuable partnership between the Institute of Museum and Library Services and the Library of Congress. The mission of NDSR “is to build a dedicated community of professionals who will advance our nation’s capabilities in managing, preserving, and making accessible the digital record of human achievement. This will enable current and future generations to fully realize the potential of digital resources now and for years to come.”
Since the inaugural NDSR class was selected to work in Washington, DC–area institutions, the program has been extended to New York and Boston. More information on these new fellowship opportunities is available on the NDSR website.
Federal Communications Commission (FCC) Issues Notice of Proposed Rulemaking on Open Internet/Net Neutrality
At an Open Meeting held on May 15, 2014, the Federal Communications Commission (FCC) considered the issue of “Protecting and Promoting the Open Internet,” or net neutrality. It voted on a Notice of Proposed Rulemaking (NPRM), which proposes new rules in accordance with the decision of the Court of Appeals for the D.C. Circuit that overturned the FCC’s 2010 Open Internet Rules regarding anti-discrimination and anti-blocking.
As a result of the decision, service providers could allow priority delivery for those willing to pay to promote their content, advancing commercial interests over research library and higher education interests. ARL, together with the American Libraries Association and EDUCAUSE, filed a letter with the FCC on February 13, 2014 advocating for an open Internet and expressing disappointment and concerns with the D.C. Circuit ruling.
An official from the FCC noted that there are currently no legally enforceable rules governing the Internet and the agency seeks to restore rules to ensure that the Internet remains an open platform for communication and growth. Six key elements to the NPR were mentioned:
Maintains the definition and scope of the 2010 rules. The FCC does, however, seek comment regarding whether that scope is still appropriate or whether it should be expanded, for example, to include mobile networks.
Seeks to enhance the transparency rule upheld by the D.C. Circuit.
Intends to institute a no-blocking rule, with clarification on the minimum level of access to broadband subscribers.
For conduct not prohibited by the no-blocking rule, would create a legal rule on commercially reasonable practices. The NPRM seeks comment on whether paid prioritization should be banned outright.
Seeks to implement a multifaceted dispute resolution system, including an ombudsman to act on behalf of consumers and start-ups.
Asks what legal authority provides the most effective path to an open Internet. While the NPRM relies on Section 706 as the source of authority, it seeks comment on whether Section 706 or Title II (or Title III) is most effective.
The sixth point addresses one of the most controversial issues in the wake of the D.C. Circuit’s ruling. Title II reclassification may be the most effective way to ensure that anti-blocking and anti-discrimination rules are permitted. The D.C. Circuit suggested that such rules, particularly with respect to anti-discrimination, looked like “common carrier” rules that are only permitted under Title II. Commissioner Wheeler previously stated his preference to continue under Section 706 authority, while making clear that all options remained on the table.
After the general overview of the NPRM, each commissioner made a statement.
Commissioner Clyburn stated her belief that all content should be treated equally and that small startups should have equal footing as large entities. She said that without the open Internet, providers would be free to block or discriminate, noting that as a result of the D.C. Circuit’s ruling, no enforceable rules remain.
Clyburn mentioned specific calls and letters that she received from the public regarding the issue of net neutrality, including concerns from educators. She noted that many comments expressed concerns that the lack of enforceable rules to ensure an open Internet would lead to a stifling of free speech.
Clyburn noted that in Europe, which has not had the same protections, content has been degraded and apps have been blocked. She noted that even in the U.S., apps are blocked by wireless providers.
Finally, Clyburn stated that she had significant concerns about Chairman Wheeler’s initial proposal, but that proposal changed significantly over the past several weeks and included some of the changes that she requested.
Commissioner Rosenworcel stated that she supported an open Internet, but that she would have handled the process differently. She expressed her opinion that the current process moved too quickly and the FCC should have taken more time to better understand the Internet and seek public input.
Rosenworcel praised the Internet economy in the U.S., calling it the “envy of the world.” She also said that the Internet was the most dynamic platform for free speech ever created and that it promotes our essential values.
Rosenworcel called for the FCC to ensure that going forward, new rules honor transparency, do not allow blocking, and do not permit unreasonable discrimination. She specifically advocated against a two-tiered system, saying that dividing the Internet into fast lanes and slow lanes was unacceptable.
She also spoke positively of the Chairman’s changes to the proposal, including seeking comments to expand the scope of the rules and keeping all options on the table, including Title II reclassification.
Commissioner Pai argued that the FCC was not the appropriate venue for creating rules to govern the Internet, stating that we should be wary of five unelected officials deciding the fate of the Internet. Instead, Pai recommended that the FCC should seek guidance from Congress on this issue. He stated that this issue should be decided by elected representatives who are held accountable by the public, expressing his disappointment that the FCC did not turn the issue over to Congress.
Pai noted that there is bipartisan consensus in favor of a free and open Internet and he is committed to protecting the “four Internet freedoms” of freedom to: access to lawful content, use applications, attach personal devices to their connections, and obtain service plan information.
He argued against Title II reclassification, stating that he agreed with President Clinton that it was inappropriate and would not allow growth of the Internet. Pai also stated that the Internet must be free from government control, asking if we want “smart networks or dumb pipes.”
Pai agreed with Commissioner Rosenworcel that the process was rushed and advocated for a better process moving forward. He said that any rules should be based on sound economics and engineering. Pai suggested that the FCC should ask ten distinguished economists, with each commissioner selecting two, to conduct studies regarding the Internet and growth, and that these studies should then be peer-reviewed and subject to a series of hearings. He also suggested that the FCC should also engage with computer scientists and technologists whose studies should similarly be subjected to peer-review and hearings.
Commissioner O’Rielly stated that the NPRM was based on a “faulty foundation” and “make-believe statutory authority,” arguing heavily against the reliance on Section 706. He suggested that, despite the D.C. Circuit’s ruling, Congress never intended Section 706 to be an affirmative grant of authority and that the language actually supports deregulation.
O’Rielly called the proposal “absurd” and stated that reclassification under Title II would bring back the monopoly era telephone rules to impose “defective” net neutrality rules. He said that Title II represented arcane provisions and an inappropriate framework. He also said that he worried about the credibility of an agency that appeared to be open to such obsolete rules.
O’Rielly questioned the evidence of any specific market failure that needed to be addressed. He said that some have pointed to bad conduct outside of the U.S., but have not shown how it has harmed actions in the U.S.
He also asserted that prioritization is important and even the strongest supporters of net neutrality concede that we must prioritize voice over e-mail and have reasonable network management.
O’Rielly argued that the proposal was not narrowly tailored, would stifle innovation and provide no help to consumers.
Chairman Wheeler concluded with a statement of his own, asserting from the outset that the FCC supports an open Internet. He said that there is only one Internet, and that it is not a fast Internet or a slow one, but rather, a single Internet.
Wheeler pointed to the D.C. Circuit’s opinion, which observed that there was “little dispute” that broadband providers can distinguish and discriminate. He pointed to examples of abuses from individual cases, including mobile services denying apps.
Wheeler stated that the NPRM starts an important process. He said that it begins with the simple and obvious premise that protecting an open Internet is important for consumers and economic growth. He emphasized that what we are dealing with today is a proposal and not a final rule.
Addressing criticisms of the proposal, he stated that nothing in the proposal would authorize paid prioritization and expressed his displeasure over the idea of having fast lanes which would break the Internet down into haves and have-nots. He noted that the NPRM asks whether and how to prevent paid prioritization.
Wheeler emphasized that the Internet needs to maintain a level playing field to allow for new ideas, small companies and startups to flourish. He said that the prospect of a gatekeeper on the Internet, which chooses winners and losers is unacceptable.
Wheeler stated that it would be commercially unreasonable for a broadband provider to not provide for the contracted pathway. Giving specific examples, he noted that it would not be commercially reasonable if a slower speed than the one the consumer purchased is provided, if a provider blocks content, or if the provider requires the consumer to pay for bandwidth that has already paid for. He said that consumers must have full connectivity.
Wheeler also highlighted two specific aspects of the NPRM, which include an enhanced transparency rule and the creation of an ombudsperson for those that cannot afford a lawyer.
Wheeler explained that he intended to use Section 706 authority because this authority was upheld by the D.C. Circuit and he believed that it provided a quicker roadmap to get rules in place. He noted, however, that it is just one of two primary avenues to reach the goal of preserving an open Internet and that the FCC was also seeking input on Title II reclassification. He concluded that he was looking forward to receiving public feedback and the issue is not about whether the Internet must be open, but rather, about how and when we will have these rules.
The NPRM passed by a vote of 3-2. Chairman Wheeler and Commissioner Clyburn voted in favor of the Notice of Proposed Rulemaking. Commissioner Rosenworcel concurred. Commissioners Pai and O’Rielly dissented.
Comments from the public are due on July 15, 2014.
USA FREEDOM Act Passed Unanimously Through House Judiciary Committee and House Permanent Select Committee on Intelligence
Last week, the House Judiciary Committee and the House Permanent Select Committee on Intelligence unanimously passed the USA FREEDOM Act (H.R. 3361). The bill, originally proposed by Rep. Sensenbrenner (R-WI) in October 2013, had 151 co-sponsors and an identical version was introduced in the Senate by Sen. Leahy (D-VT). Some of the language of the original bill was altered by a Manager’s Amendment just prior to the Judiciary Committee’s markup. Previous coverage of the USA FREEDOM Act is available here.
The USA FREEDOM Act, as amended and passed through the Judiciary Committee**, would make the following key changes and clarifications to the USA PATRIOT Act, among others:
Prohibits bulk collection of telephone records under Section 215, also known as the “business records” or “library records” provision.
Requires a statement of facts demonstrating that there are reasonable grounds to believe that call detail records requested under Section 215 are relevant to an authorized investigation and that “there are facts giving rise to a reasonable articulable suspicion that such specific selection term is associated with a foreign power or agent of a foreign power.” Specific selection term is defined as a term “to uniquely describe a person, entity or account.” The version of the USA FREEDOM Act as introduced did not include the limitation to specific selection term as the basis of a records request and therefore creates a stronger prohibition against collections of records generally.
Limits the definition of call detail records for collection under Section 215 to originating and terminating phone numbers and call duration. The definition explicitly excludes communications content, subscriber information, and cell site location.
Permits an order authorizing production of records for two “hops,” that is for the records of the person targeted as well as the call detail records of those in contact with the person targeted and those in contact with those contacts.
Prohibits the bulk collection of tangible things under Section 215 by requiring inclusion of “a specific selection term to be used as the basis for the production.”
Requires specific selection term for the basis of production where a pen register, a device that records all numbers called from a particular telephone line, is used.
Prohibits using Section 702, which is designed to permit targeting a non-U.S. person, if “a purpose” is to target the communications of a U.S person. This portion of the bill as passed by the House Judiciary Committee is not as strong as the original version, which prohibited backdoor searches of U.S. communications.
Creates the role of amicus curiae in the FISA court, unless the court finds that such an appointment is not appropriate. Under the version of the bill originally introduced, rather than having the court appoint amicus curiae, the bill intended to create an Office of the Special Advocate to advocate on behalf of interpretations protecting privacy rights and civil liberties and would be able to appeal FISA court decisions.
Requires the attorney general to conduct a declassification review of FISA court decisions and orders that include a “significant construction of law” and make them publicly available to the greatest extent possible. Where declassification would endanger national security, the bill would direct the attorney general to provide an unclassified summary.
Harmonizes the Section 215 reforms with national security letter reform.
Permits companies receiving surveillance orders to publicly report on the numbers of orders received and numbers of users/accounts subject to the orders.
**The discussions in this blog referring to the USA FREEDOM Act refer to the version passed by the House Judiciary Committee and House Permanent Select Committee on Intelligence last week. This version included the change made by the Manager’s Amendment and markup in the House Judiciary Committee. However, the version first introduced by Rep. Sensenbrenner is identical to the version introduced by Sen. Leahy and this original version of the bill remains in the Senate.
In brief, students, will be required to “buy” a Connected Casebook, which consists of two pieces. First, there is “lifetime access” to a digital version of the casebook, together with various supplementary materials. Second, there is a bound physical version of the casebook, which students can highlight and mark up freely, “but which must be returned to us at the conclusion of the class.”
The obvious goal is to dry up the used book market by draining the supply of used copies. But as Josh points out, it seems unlikely that every student will return the physical book. Rather, reading between the lines, Aspen may argue that the physical book is “licensed” rather than “sold” under the reasoning of cases like Vernor v. Autodesk. The result would be that first sale (the right of the owner of a book, or a DVD, or any other copy of a copyrighted work to resell it freely) would never attach, since the students wouldn’t be “owners” of their physical copies. If Stan Second-Year sells his copy of the new Dukeminier to Fran First-Year, he’d be a copyright infringer in the eyes of Aspen. So too might be Half.com or Barnes and Noble, if they participated in the transaction. Just to make sure that students know they’re only borrowing Aspen’s books and “agree” to those terms, it appears, students will have to purchase Connected Casebook access through Aspen’s website or a participating campus bookstore
On May 1, 2014, a report by Administration officials to President Obama on big data was released. The report was signed by John Podesta, Counselor to the President; Penny Pritzker, Secretary of Commerce; Ernest J. Moniz, Secretary of Energy; John Holdren, Director of the Office of Science & Technology Policy; and Jeffrey Zients, Director of the National Economic Council. The report is the result of a ninety-day study by the review group, convened at the request of President Obama at a January 17 speech at the Justice Department.
The report discusses some of the concerns and challenges with respect to big data and ultimately makes several recommendations. The report is broken into six parts: 1) Big Data and the Individual; 2) Obama Administration’s Approach to Open Data and Privacy; 3) Public Sector Management of Data; 4) Private Sector Management of Data; 5) Policy Framework for Big Data; and 6) Conclusions and Recommendations. Highlights from the report, including are included below.
Big Data and Education
One portion of the report specifically focuses on big data and education, recognizing the wide range of technology and platforms used at all levels of education. The report notes that new technologies allow institutions to personalize education and improve learning, but also raise concerns regarding student privacy. For example, the report states that:
Data from a student’s experience in massive open online courses (MOOCs) or other technology-based learning platforms can be precisely tracked, opening the door to understanding how students move through a learning trajectory with greater fidelity, and at greater scale, than traditional education research is able to achieve. This includes gaining insight into student access of learning activities, measuring optimal practice periods for meeting different learning objectives, creating pathways through material for different learning approaches, and using that information to help students who are struggling in similar ways. [… ]
The big data revolution in education also raises serious questions about how best to protect student privacy as technology reaches further into the classroom. While states and local communities have traditionally played the dominant role in providing education, much of the software that supports online learning tools and courses is provided by for-profit firms. This raises complicated questions about who owns the data streams coming off online education platforms and how they can be used. Applying privacy safeguards like the Family Educational Rights and Privacy Act, the Protection of Pupil Rights Amendment, or the Children’s Online Privacy Protection Act to educational records can create unique challenges.
The report further notes that user information from education platforms “can be very personal” and that the U.S. Department of Education released guidelines for online educational services in February 2014. These guidelines highlight the importance of compliance with FERPA when entering into agreements with third parties regarding student data. The report concludes that “The Administration is committed to vigorously pursuing these questions and will work through the Department of Education so that all students can experience the benefits of big data innovations and teaching and learning while being protected from potential harms.”
Privacy and Law Enforcement
The report also recognizes that while big data can be a useful tool for law enforcement and security, “they also pose difficult questions about their appropriate uses.” Big data can be used to better understand criminal organizations through pattern analysis, but gathering of such data can also include information about individuals not subject to investigation. It also cautions that use of predictive technologies, while potentially useful in anticipating and preventing crimes, is controversial. It is therefore necessary to balance civil liberties and privacy interests with law enforcement goals.
Data Held by Third Parties
The big data report summarizes Fourth Amendment case law, particularly with respect to data held by third parties. It cites the seminal Supreme Court cases from the 1970s in United States v. Miller and Smith v. Maryland, both of which held that an individual does not have a legitimate expectation of privacy in information voluntarily turned over to third parties, also known as the “third party doctrine.”
In light of Supreme Court jurisprudence in this area, Congress enacted the Privacy Act of 1974, the Electronic Communications Privacy Act of 1986 (ECPA) and the Pen/Trap Act, which provide statutory protection for records held by third parties. However, these pieces of legislation may be seen as outdated and, “In light of technological advances, especially the creation of exponentially more electronic records about personal interactions, some commentators have called for a reexamination of third-party doctrine.” The report notes that the Court of Appeals for the Sixth Circuit ruled in United States v. Warshak that a subscriber has a reasonable expectation of privacy in his e-mail, analogous to a letter or phone call that would be protected. Similarly, in the recent Supreme Court case, United States v. Jones, Justice Sotomayor wrote a concurrence expressing the concern that the third-party doctrine may be “ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”
The report notes that while post-Warshak, warrants are required for content, metadata is being collected and obtained under the third-party doctrine and suggests that examination of the metadata issue, even beyond intelligence activities, should be expanded.
The authors of the report recognize that evolving technologies have created a need to re-evaluate current practices:
ECPA was originally passed in 1986. It has served to protect the privacy of individuals’ stored communications. But with time, some of the lines drawn by statute have become outdated and no longer reflect ways in which we use technology today. In considering how to update the Act, there are a variety of interests at stake, including privacy interests and the need for law enforcement and civil enforcement agencies to protect public safety and enforce criminal and civil law. Email, text messaging, and other private digital communications have become the principal means of personal correspondence and the cloud is increasingly used to store individuals’ files. They should receive commensurate protections.
Similarly, many protections afforded to metadata were calibrated for a time that predated the rise of personal computers, the Internet, mobile phones, and cloud computing. No one imagined then that the traces of digital data left today as a matter of routine can be reassembled to reveal intimate personal details. Today, most law enforcement uses of metadata are still rooted in the “small data world”, such as identifying phone numbers called by a criminal suspect. In the future, metadata that is part of the “big data” world will be increasingly relevant to investigations, raising the question of what protections it should be granted.
The report also acknowledges the challenge that “once data is collected, it can be very difficult to keep anonymous.”
Conclusions and Recommendations
The authors of the report conclude by making six policy recommendations:
Advance the Consumer Privacy Bill of Rights. The Department of Commerce should take appropriate consultative steps to seek stakeholder and public comment on big data developments and how they impact the Consumer Privacy Bill of Rights and then devise draft legislative text for consideration by stakeholders and submission by the President to Congress.
Pass National Data Breach Legislation. Congress should pass legislation that provides for a single national data breach standard along the lines of the Administration’s May 201 Cybersecurity legislative proposal.
Extend Privacy Protections to non-U.S. Persons. The Office of Management and Budget should work with departments and agencies to apply the Privacy Act of 1974 to non-U.S. persons where practicable, or to establish alternative privacy policies that apply appropriate and meaningful protections to personal information regardless of a person’s nationality
Ensure Data Collected on Students in School is Used for Educational Purposes. The federal government must ensure that privacy regulations protect students against having their data being shared or used inappropriately, especially when the data is gathered in an educational context.
Expand Technical Expertise to Stop Discrimination. The federal government’s lead civil rights and consumer protection agencies should expand their technical expertise to be able to identify practices and outcomes facilitated by big data analytics that have a discriminatory impact on protected classes, and develop a plan for investigating and resolving violations of law.
Amend the Electronic Communications Privacy Act. Congress should amend ECPA. To ensure the standard of protection for online, digital content is consistent with that afforded in the physical world—including by removing archaic distinctions between email left unread or over a certain age.
ARL Joins Amicus Brief in Garcia v. Google Copyright Case
On Friday, April 11, 2014, the Association of Research Libraries (ARL), along with the American Library Association, Association of College and Research Libraries, and other organizations, joined an amicus brief authored by the Electronic Frontier Foundation in Garcia v. Google. The brief urges the US Court of Appeals for the Ninth Circuit to reconsider its decision in this copyright case in which a 2-1 panel ruled in favor of Cindy Lee Garcia, one of the actors in the film Innocence of Muslims. Garcia claimed a 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, which is owned by Google.
The decision by the three-judge panel raises serious concerns as it alters the traditional contours of copyright and impacts the future of online free speech. The brief urges the Ninth Circuit to rehear this case en banc, so that the full court may reconsider these important issues.
Supplemental Testimony of James G. Neal on Preservation and Reuse Endorsed by Library Copyright Alliance (LCA)
One week after testifying before the House Committee on the Judiciary Subcommittee on Courts, Intellectual Property and the Internet during the Hearing on Preservation and Reuse of Copyrighted Works, James G. Neal of Columbia University in New York City submitted supplemental testimony to address questions raised during the hearing and expand on his earlier written statement. The supplemental testimony addresses five issues: collective licensing, contractual restrictions on copyright exceptions, preservation of born-digital materials, the cost of preservation, and community fair use best practices. The Library Copyright Alliance has endorsed the supplemental statement.
The supplemental testimony noted that collective rights’ organizations (CROs) often represent problematic models that fail to pay artists and authors the revenues they earned and cautions against relying on such models as solutions, particularly with respect to preservation, mass digitization and orphan works. CROs have had a history of corruption, mismanagement, lack of transparency, among other issues. The statement pointed to two specific examples of problematic behavior of CROs. The first example is that the Copyright Clearance Center (CCC) has used fees it collected from research and academic libraries to sue Georgia State University over the use of books written by academics in an e-reserves case. The second example is the Educational Rights Collective Canada that, in fifteen years of operation, has failed to distribute any royalties to authors but is $830,000 in debt.
Contractual Restrictions on Copyright Exceptions
The supplemental testimony expanded on Neal’s oral testimony with respect to ensuring that contractual provisions do not circumvent the exceptions in the Copyright Act. The testimony noted that in licensing electronic resources, publishers often include terms that restrict the fair use right, library exceptions and first sale doctrine. It also pointed out that restricting such contractual provisions exists in numerous areas, both domestically and in foreign jurisdictions. Neal concluded “As part of its review of the Copyright Act, the Subcommittee should assess the adverse impact of the potential replacement of the public law of copyright with the private law of contract, both on libraries and the public at large. I believe that Congress should adopt restrictions on the enforcement of contractual terms that attempt to limit exceptions in the Copyright Act such as first sale, fair use or interlibrary loan under Section 108.”
Preservation of Born-Digital Materials
Neal’s supplemental testimony expanded on his oral testimony regarding the need to preserve born-digital materials. The supplemental statement pointed to studies that reveal that digital materials are also subject to risk of loss, corruption and destruction. It noted also the issue of website archiving and importance of digital preservation in order to address the problem of “link rot” and preserve the cultural heritage expressed through websites. Neal asserted that it is “essential” to rely on fair use to preserve linked references.
Cost of Preservation
Responding to a question from a member of the Judiciary Committee concerning the cost of preservation and access, Neal expanded on creative solutions to address preservation efforts, noting that HathiTrust and the Digital Preservation Network represent cooperative, shared infrastructure models that avoid unnecessary duplication and can reduce overall costs of preservation. The supplemental statement also noted that while it would have taken the University of Michigan 1,000 years to digitize its collection of books, Google’s assistance has allowed it to already largely complete the digitization effort.
House Judiciary Subcommittee Hearing on Preservation and Reuse of Copyrighted Works; Testimony of James Neal, Endorsed by LCA
On Wednesday, April 2, 2014, the House Committee on the Judiciary, Subcommittee on Courts, Intellectual Property and the Internet continued its copyright review. This hearing focused on “Preservation and Reuse of Copyrighted Works” with six panelists: Mr. Gregory Lukow (Chief, Packard Campus for Audio Visual Conservation, Library of Congress); Mr. Richard Rudick (Co-Chair, Section 108 Study Group); Mr. James Neal (Vice President for Information Services and University Librarian, Columbia University); Ms. Jan Constantine (General Counsel, The Authors Guild); Mr. Michael C. Donaldson (Partner, Donaldson + Callif, LLP, on behalf of Film Independent and International Documentary Association); and Mr. Jeffry Sedlik (President and Chief Executive Officer, PLUS Coalition). Written testimony from each witness is available here.
Neal’s statement, endorsed by the Library Copyright Alliance (LCA), provides that the “overarching point is that the existing statutory framework, which combines the specific library exceptions in Section 108 with the flexible fair use right, works well for libraries, and does not require amendment.” In reaching this point, the written statement goes through four issues: 1) the importance of library preservation; 2) how the library exceptions under Section 108 supplement rather than supplant fair use; 3) the diminished need for orphan works legislation; and 4) perspective on the HathiTrust case.
The written testimony emphasize that providing access to collections of preserved materials is a critical part of libraries’ missions. It notes that with the digital age and new technology, new challenges for preservation have emerged to ensure that new media, which represent a substantial part of the cultural record, are adequately preserved. Neal’s statement gives several examples from his experience at Columbia emphasizing the need to format shift and preserve materials in different formats, including content that existed on short-lived websites. The statement further notes that in order to achieve this mission, libraries “require robust applications of flexible exceptions such as fair use so that copyright technicalities do not interfere with their preservation mission.”
Relationship Between Section 108 and Fair Use
The statement points to the privileged status of libraries throughout the Copyright Act, with seven specific examples. For example, the statement notes that Section 504(c)(2) shields libraries from statutory damages where the library reasonably believed their activity constituted fair use. Section 12014(b) excludes libraries from criminal liability under the DMCA. And, of course, Section 108 provides libraries and archives with a clear set of exceptions for certain activities.
The written testimony emphasizes that Section 108 does not represent the totality of exceptions and limitations from which libraries may benefit, as the Authors Guild initially argued in HathiTrust, and that fair use, amongst other exceptions, may also be relied upon. Without being able to rely on fair use and other exceptions that exist in other sections of the Copyright Act, libraries, including the Library of Congress, would be considered serial infringers. Further, Section 108(f)(4) clearly and unambiguously provides that nothing in Section 108 “in any way affects the right of fair use” and the legislative history supports the meaning of the plain language of the statute. Scholars and case law similarly support this clear reading of the interplay between Section 108 and Section 107.
Furthermore, fair use sufficiently updates Section 108 and it is therefore unnecessary to make legislative changes to Section 108. Neal notes that, as a member of the Section 108 study group, a report was issued after three contentious years, reflected only a high level agreement, and did not resolve many important issues because of the lack of agreement. The statement highlights a concern that some of the Study Group’s recommendation could limit what libraries do today. This section of the statement concludes, “The fact that Section 108 may reflect a pre-digital environment does not mean it is obsolete. It provides libraries and archives with important certainty with respect to the activities it covers. Furthermore, Section 108 provides courts with importance guidance concerning the application of Section 107.”
The statement also notes that from Neal’s perspective and of LCA’s, orphan works legislation is no longer necessary because the “gatekeeper” problem has diminished due to greater certainty regarding fair use, including recent jurisprudence in this area in a wide range of cases. Furthermore, the Code of Best Practices has provided reassurances with respect to orphan works in a special collection as well as digitizing and making available materials in special collections. In addition to fair use developments, there is less likelihood that injunctions will be issued since the Supreme Court’s 2007 ruling in eBay v. MercExchange which changed the presumptions regarding injunctions in cases of infringement. Furthermore, mass digitization has become more common. In addition to these developments, the clear disagreement over an orphan works solution suggests that a legislative solution regarding orphan works, mass digitization or Section 108 will be very difficult if not impossible.
The fourth section of the statement explains the HathiTrust project and discusses the litigation initiated by The Authors Guild. The statement goes into Judge Baer’s district court decision in detail and expresses the “hope that the Second Circuit will agree with Judge Baer that HDL (HathiTrust Digital Library) preserves important works, allows them to be searched, and provides access to the print disabled, without causing any economic harm to rights holders.
Orphan Works/Mass Digitization Roundtables: Copyright and Fair Use Myths and Realities
During the orphan works roundtables, several participants attacked fair use and libraries, misstated the purpose of the copyright system in the United States, or inaccurately portrayed the activities of HathiTrust. Here are just some of the misconceptions or myths cited at the roundtable and responses to these inaccuracies:
Myth 1: Fair use is too uncertain
Some advocates of a legislative orphan works solution argued that legislation is necessary because fair use is too uncertain or unpredictable.
Reality: Fair use is a fairly predictable doctrine
Fair use is actually fairly predictable. Professor Pamela Samuelson wrote an article in 2009 entitled, Unbundling Fair Uses which concluded that “Fair use is both more coherent and more predictable than many commentators have perceived once one recognizes that fair use cases fall into common patterns.” In fact, the Australian Law Reform Commission (ALRC) pointed to this very article when proposing that Australia adopt a fair use provision. The ALRC went on to note that fair use factors can represent “a clear principled standard [that] is more certain than an unclear complex rule.” In recent testimony before the House Judiciary Committee Subcommittee on Courts, Intellectual Property and the Internet, Professor Peter Jaszi (American University) similarly stated that fair use jurisprudence is predictable and coherent.
Myth 2: Recent fair use jurisprudence consumes Section 108 and renders the provision meaningless
Some have argued that applying fair use to activities not explicitly permitted under Section 108 makes this specific limitation, as well as others that libraries rely on, meaningless. They also suggest that fair use goes too far when applied where Section 108 does not apply.
Reality: Section 108(f)(4) includes an explicit savings clause that fair use still applies
Section 108(f)(4) provides that “Nothing in this section—in any way affects the rights of fair use as provided by section 107…” The plain language of the statute could not be any more clear: “Nothing … in any way affects the rights of fair use.” It is obvious that fair use applies even where a specific limitation or exception codified under Section 108 does not, subject of course to evaluation of the four fair use factors. Some argue against the plain language by asking what the purpose of Section 108 is if libraries can simply rely on the fair use provision of Section 107. Explicit limitations and exceptions can be beneficial in providing certainty for certain activities, particularly for those that are risk adverse, or apply where fair use might not. Libraries rely on a mix of purpose specific limitations and exceptions as well as fair use in order to achieve their public service mission and respond to evolving technology.
Myth 3: Fair use being used as an excuse by the library community to perform activities not covered by specific limitations or exceptions
Several participants claimed that fair use was just an excuse being used by the library community where specific limitations do not exist. Others argued that fair use has gone too far and has made copyright the exception to fair use.
Reality: Libraries are a conscientious and risk adverse community. Fair use is being used after careful thought and based on solid legal footing
Although there are numerous purpose specific limitations and exceptions that libraries rely upon, they do not cover every situation and fair use has long been relied upon where specific exceptions do not exist. Libraries are not pirates, but rather, are trusted institutions serving a public mission to provide access to knowledge and culture within the boundaries of the law.
Myth 4: Fair use clearly prohibits any uses that have an effect on the market
One commentator at the orphan works roundtable repeatedly argued that relying on fair use for any uses that have an affect on the market violates copyright law and is an infringement of a creator’s rights.
Reality: Fair use is a flexible standard and all four factors are considered together
Fair use is not designed to require satisfaction of all four statutory factors, but instead are considered together. The four factors include: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value for the copyrighted work.
The Supreme Court has explicitly stated that the factors are not to “be treated in isolation from one another. All are to be explored and weighed together, in light of copyright’s purpose” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). Following this line of reasoning, circuit courts have confirmed that a defendant does not need to prevail on each of the four factors in order to successfully rely on fair use.
Myth 5: Copyright’s primary purpose is free expression and not to promote the public benefit
A disagreement broke out during one of the panels, with one person arguing that there is no legal basis for the argument that copyright’s primary purpose is to promote the public benefit.
Reality: The Constitution clearly states that the purpose of the intellectual property system is to “promote the progress of science of the useful arts” and the Supreme Court has repeatedly pointed to the importance of the public interest
Article 1, Section 8, Clause 8 of the U.S. Constitution sets forth the constitutional rationale for the intellectual property system: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The Supreme Court has repeatedly noted that this clause is both a grant of power and a limitation for Congress.
In Sony Corp. of America v. Universal City Studios, the Court cited past precedent dating back to 1932 that “The copyright law, like the patent statutes makes reward to the owner a secondary consideration” and that “The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors” (emphasis added). Additionally, the Supreme Court noted that “The immediate effect of our copyright law is to secure a fair return for an ‘author’s creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good” (emphasis added).
Additionally, fair use is an important limitation to copyright and has been upheld by the Supreme Court as a “First Amendment safeguard.”
Myth 6: Best practices in fair use are a contemporary/recent standard and not known by creators
One participant discounted the value of best practices because they have only been developed recently and have not withstood the test of time. Another suggested that the communities themselves did not create these best practices.
Reality: While many codes of best practices are recent, these practices contained within the codes have been used prior to being collected in a code
Codes of best practices do not appear out of thin air. The Code of Best Practices in Fair Use for Academic and Research Libraries, for example, was created in consultation with 150 research and academic librarians across the country. The Code of Best Practices draws upon the experiences of academic and research librarians and is a compilation of their best practices. Although not every librarian might agree with every principle, limitation or enhancement, as pointed out during the roundtable by one of the principal authors of this Code, Brandon Butler, such librarians are in the minority. While the aggregation of these best practices into a single document may have occurred recently, the practices themselves are not new to many libraries.
Myth 7: Digitization without authorization is not fair use. Other than the district courts in HathiTrust and Georgia State, courts have not approved of these types of activities.
Some participants discounted the district court decisions in HathiTrust and Georgia State University, noting that these cases were still in their first round and that circuit courts had yet to decide the case. Others stated that other than these two district courts, no courts have approved of these activities as fair use
Reality: Numerous circuits have upheld mirror image copies as transformative and applied fair use
Although HathiTrust and Georgia State University do involve new issues of mass digitization, several circuit courts have addressed whether mirror image or exact copying is fair use, finding that transformative copies are protected by fair use. The Fourth Circuit in A.V. v. iParadigms, for example found that using student papers to create a plagiarism database was protected under fair use. Similarly, in Perfect 10, Inc. v. Amazon as well as Kelly v. Arriba Soft Corp., the Ninth Circuit found that using website images to create a search index constituted fair use. Likewise, the Second Circuit upheld fair use in Bill Graham Archives v. Dorling Kindersley for the use of concert posters in a book. These cases provided a solid basis for the HathiTrust _and _Georgia State University decisions and suggestions that the district courts went rogue and circuits have not approved of these types of activities are incorrect; circuit after circuit has upheld mirror image copying as fair use. While it is true that both HathiTrust and Georgia State University are on appeal, there are strong legal arguments supporting the application of fair use to mass digitization in these cases.
There appeared to be little agreement on the vast majority of issues and opinions diverged widely. The greatest consensus seemed to be opposition to, or at least caution with, extended collective licensing; the Copyright Office noted, however, that some prior comments supported extended collective licensing solutions.
During the sessions, best practices, fair use, the issue of whether orphan works and mass digitization need to be treated separately, and licensing solutions were heavily referenced and discussed. Some individuals attacked recent fair use jurisprudence or claimed that their human rights were threatened by use of orphan works or mass digitization projects. Photographers in particular raised concerns that photographs are turned into orphans too quickly, particularly when images are put on the Internet. The library community seemed to agree on the vast majority of issues, with the exception of one representative from Rutgers University Libraries, and members of the Library Copyright Alliance (LCA) spoke with one voice. Below are summaries from each session.
1) The need for legislation in light of recent legal and technological developments
The first point of disagreement centered around the issue of whether there is even a need for orphan works legislation. Most members of the library community, including the Library Copyright Alliance and a representative of Harvard University, noted that they were satisfied with recent fair use jurisprudence which diminished the need for orphan works legislation. This sentiment was echoed on the next panel by several other representatives of the library community. The Association of American Law Libraries stated their support for legislation in theory, but noted that there is a risk that legislation may not ultimately be a positive. CCIA noted that the complexity and regulatory nature of past orphan works proposals have made some stakeholders oppose a legislative solution.
Others, including Association of American Publishers, Wikimedia, Authors Guild, National Music Publishers’ Association and the representative of Rutgers University Libraries argued that orphan works legislation is needed. Some of those supporting orphan works legislation pointed out that their members or stakeholders value certainty.
In addition to the need for legislation, there were many references to fair use and best practices. Some representatives of rightsholder groups voiced their concern that their stakeholders were not consulted in development of best practices. Some participants noted their approval of recent fair use jurisprudence, while conceding that fair use does not address every issue. The Digital Library Copyright Project noted its project on best practices for use of orphan works for libraries and universities. Representatives of the library community continued to look favorably both on recent fair use jurisprudence and best practices, with the exception of the representative of Rutgers University Libraries who aligned with representatives of some rightsholder groups, including the National Music Publishers Association, American Society of Illustrators Partnership and the American Society of Journalists & Authors and argued that recent court cases on fair use have gone too far.
Although the Copyright Office did not want to engage in a debate over the copyright term, several participants pointed out that the lengthy copyright term in the United States of life plus seventy years has exacerbated the orphan works problem.
2) Defining a good faith “reasonably diligent search standard”
With respect to defining a reasonably diligent search standard, there was again no agreement or consensus view as to how it should be defined and whether a flexible or rigid approach would better solve the orphan works issue. Representatives of the library community encouraged flexible standards due to the differences in users, uses and circumstances that could influence the reasonableness of a search. Additionally, a rigidly defined standard would result in the law being unable to evolve and adapt to new technologies. The American Library Association noted that the searches conducted by librarians reveal sincere efforts to find the rightsholder. A representative of International Documentary Association and Film Independent, pointed out that overly rigid guidelines could result in failure because the legislation would not be used. The Society of American Archivists noted that a high standard for reasonably diligent search could prove too costly and make digitization efforts unsustainable.
Others suggested that a reasonably diligent search standard must have minimum standards and encouraged a more rigid approach in order to provide more certainty. The Motion Picture Association of America and the National Portrait Gallery representatives pointed out that minimum standards could still be flexible.
Some participants offered the following considerations in defining a reasonably diligent search: cost, commercial versus noncommercial intent, free market solutions, type of the work, age of the work and the use of the Copyright Office records. Another issue was whether a reasonably diligent search was possible for mass uses. There was no consensus on any of these issues.
Best practices were again referenced during this session, with many pointing out that they draw on the expertise of the community. Additionally, as noted by the International Documentary Association and Film Independent, best practices can evolve and there have been no specific allegations of misuse in these best practices. Responding to suggestions that the Copyright Office should facilitate drafting of best practices created by rightsholders and the user community, the Library Copyright Alliance pointed out that such negotiations would be long, delay the process at the outset, and could be fruitless, as evidenced by the widely diverging opinions expressed throughout the round table.
3) Role of private and public registries
The Society of American Archivists noted that registries cannot solve all issues and that the majority of orphan works are personal documents. SAA also cautioned that any solution must take into account the cost in searching for an orphan work.
Some of the panelists argued for global registries, while others advocated for voluntary opt-in registries or private registries. Some suggested that there is a need for multiple registries and that users of orphan works must find a way to search all the existing registries.
4) Types of works subject to any orphan works legislation, including issues related specifically to photographs
Much of the discussion centered on whether photographs should be included in an orphan works solution. The Association of American Publishers supported the idea that all works should be subjected to orphan works legislation. Other rightsholder groups specifically suggested a carveout for the interests they represented, such as for illustrators or musicians; others did not specifically advocate for a carveout but said that different works should be treated in a different manner. The Library of Congress pointed to the danger of excluding works such as photographs, because the same photographs are being used over and over again because of the fear in using orphaned works, skewing historical and cultural records.
The American Society of Media Photographers called artists “disenfranchised” and argued that creators would not be able to profit in an ongoing manner. The National Press Photographers Association said that there is a legitimate concern regarding finding the authors of older photographs, but noted that current photographs are instantly made orphans when they are uploaded to the Internet and stripped of their metadata.
The Digital Public Library of America advocated for “democratic access” to works, but the National Press Photographers Association opposed this idea.
During this panel, there was disagreement as to whether the Constitutional rationale of the copyright system is to promote the public benefit. Again, some panelists stated that fair use does enough to address orphan works concerns and already addresses some of the concerns discussed during the panel.
5) Types of users and uses subject to any orphan works legislation
While most panelists during this session seemed to suggest that legislation should cover both commercial and non-commercial users and uses, there was disagreement as to whether they should be treated equally. Additionally, some panelists during earlier sessions voiced disapproval for an orphan works solution that applied to commercial uses.
Several, including the Association of American Publishers, Association of Research Libraries, College Art Association, Writers Guild of America West, and the representative of Harvard University noted that the line between commercial and non-commercial can be difficult to define. Some noted that some non-profit institutions have gift shops or can engage in for-profit activities in order to sustain their non-profit work. Additionally, some commercial entities can provide genuine not-for-profit uses. The Association of American Publishers suggested that commercial entities are necessary because a legislative solution would likely be too complicated for individuals to take advantage of the legislation on their own, but who would be willing to pay for the value provided for by commercial interests.
Some panelists felt the distinction should not be whether a user is commercial or non-commercial, but that consideration should be given to whether a use is commercial or non-commercial. A representative from the Graphic Artists Guild argued that illustrators can clearly explain what are commercial uses and what are non-commercial uses, asserting that their industry would be destroyed if it were possible to use orphaned works for free in the commercial market. The Graphic Artists Guild also noted that non-commercial uses, such as for education and preservation, are already permitted under fair use.
Some arguments were made against making the law overly complicated because doing so could create confusion for individuals or, depending on the complexity, even for lawyers.
6) Remedies and procedures regarding orphan works
This session discussed limitations on monetary damages and injunctions. Most, but not all, participants supported limitations on injunctions because without such limits, no one would take advantage of a solution in which they must invest large amounts of money.
With respect to monetary damages, participants suggested the following: reducing or remitting statutory damages, remitting attorneys fees, and increasing damages for bad actors. Some felt that different standards for different works are appropriate and looking at the circumstances, such as the time or age of commercialization could be taken into account. A representative of the Digital Media Association opposed words like “reduce,” “remit,” or “increase,” arguing that the focus should be on reasonable compensation instead.
The National Press Photographers Association advocated heavily for a small claims court and stated that any orphan works solution should be tied to a willingness to participate in a small claims court.
The National Writers Union argued that the solutions being discussed resulted in blaming the victim and suggested that it is the users of orphan works that should be required to register and notify the public of the intent to use such works.
7) Mass digitization, generally
Throughout the roundtables, many participants argued that orphan works and mass digitization are different issues and must be separated. The panel on mass digitization was the most contentious of the all the panels spanning both days, with attacks on libraries and the Authors Guild making several explicit threats to sue libraries that digitize under a claim of fair use. The contentiousness of this panel highlighted the likely impossibility in coming together to find any solution.
Participants discussed whether fair use applied to mass digitization or whether its use goes too far. The Library Copyright Alliance pointed to several cases supporting the argument that digitization is considered fair use. Although some participants throughout the roundtables dismissed HathiTrust and Georgia State University because both case are on appeal the Library Copyright Alliance noted that the fair use argument is supported by a number of cases that have been decided by several circuits. Again, the library community largely supported the reliance on fair use for digitization projects, with the exception of the representative of Rutgers Universities Libraries. The representative of the University of Michigan, after several attacks on libraries and reliance on fair use, stated that the attacks were unfounded and that libraries are conscientious actors, not pirates. A representative from American University/Creative Commons USA stated that format shifting was clearly fair use, though questions may arise as to the uses after format shifting has taken place.
The Authors Guild disagreed and argued that digitization violates fair use and Section 108. The representative of the Authors Guild issued a “warning” that if libraries continue to digitize and argue fair use, then the Authors Guild would bring lawsuits for this type of behavior. The MPAA stated that it was comfortable with the case-by-case basis approach of fair use, but argued that it is impossible to consider application of fair use in a mass digitization case where you might have 20 million books. The National Press Photographers Association noted that one of the particular problems for photographers is the public perception that everything on the Internet is in the public domain.
As expected, some of the discussion covered the HathiTrust case. The representative of the National Press Photographers Association likened the case to Plessy v. Ferguson, a Supreme Court case from 1892 that upheld the “separate but equal” doctrine until being overturned by Brown v. Board of Education. The National Press Photographers Association argued that HathiTrust had been decided incorrectly and that just because Plessy v. Ferguson was the law for decades, it did not make the law right.
The representative from the Library of Congress pointed to the high costs of mass digitization, stating that it is not as simple as throwing a document into a scanner. He pointed out that there is a value add in what they do by making scans ADA compliant and that there is proper quality control, all of which results in costs to the institution. The Museum of Fine Arts, Boston added that digitization offers new benefits and value, such as providing 360 degree rotation of sculptures or vases, which would not otherwise be available.
8) Extended collective licensing and mass digitization and
9) Structure and mechanics of a possible extended collective licensing system in the United States
Sessions eight and nine overlapped, not only with respect to content but also with some of the same panelists. The participants at the sessions seemed to oppose or were at least wary of extended collective licensing.
Some pointed to the problems of collecting societies including that little money is actually distributed to the creators, there can be a lack of accountability, and they do not take into account the different interests of different authors. A couple of panelists also pointed out that extended collective licensing could come into tension with antitrust laws and that ultimately the states will end up with most fees due to unclaimed property laws.
Most panelists agreed that an individually negotiated license should be the first preference. Many panelists from rightsholder communities stated that voluntary licensing has worked in their communities. Many also pointed out that the United States does not have much history, tradition or experience with extended collective licensing regimes.
One participant noted that extended collective licensing creates an unnecessary tax and can damage fair use; only where fair use does not apply should one seek a license. This participant also pointed to the great value-add that has resulted from mass digitization projects undertaken by libraries.
The National Federation of the Blind cautioned against extended collective licensing because of the huge benefits that mass digitization has provided for persons who are blind or print disabled. He noted that anything that had a chilling effect on mass digitization would likely limit access for persons who are visually impaired and noted concerns with economic disincentives to digitize works.
Written comments are due to the Copyright Office by April 14, 2014. Judging from the discussions at the orphan works roundtable, however, it appears unlikely that the Copyright Office will be able to find a consensus view to please all stakeholders. The views expressed at the roundtable were widely divergent and it seems highly unlikely—given various threats and attacks on libraries as well as the extreme rhetoric regarding fair use—that all stakeholders could come together to find a solution. Even where it seemed like many participants agreed, such as opposing extended collective licensing regimes, the Copyright Office pointed out that some comments submitted in previous requests for comments supported such collective licensing.
Library Copyright Alliance (LCA) Comments on EU Consultation on Copyright Rules
On March 3, 2014, the Library Copyright Alliance submitted a response to the EU consultation on the review of copyright rules. The EU website provided a list of 80 questions for stakeholders to answer; the LCA response focuses on those questions most relevant to the library community. The categories of questions to which LCA responded cover digital transmissions, term of protection, limitations and exceptions, preservation and archiving, e-lending, mass digitization, teaching, research, and access for persons with disabilities. The full LCA response can be accessed here.
In addition to broadly recommending adoption of a fair use provision in response to the EU’s general question regarding limitations and exceptions, the LCA notes in several other areas of the document that fair use can address specific issues concerning the library community. With respect to preservation and archiving, for example, the consultation response notes that while no specific limitation or exception exists in the U.S. to permit web archiving, libraries and archives may rely on fair use to perform such functions. Similarly, the LCA response points out that libraries and archives may pursue mass digitization projects by relying on fair use. With regard to questions on the educational context, LCA notes that fair use can complement specific limitations and exceptions, including where specific limitations, such as those contained in the TEACH Act, are insufficient, too narrow or overly cumbersome.
Responding to other relevant questions, LCA recommends that the EU ratify the Marrakesh Treaty and ensure its implementation in all member states in order to improve accessibility for persons with disabilities. It also notes that current terms of protection for copyright are inappropriate, particularly in the digital age, and can contribute to loss of access to knowledge and an increased number of orphan works. Furthermore, the LCA response opposes any requirements that provision of a hyperlink or viewing of a webpage be subject to the authorization of the rightholder.
This week is #FairUseWeek at Harvard. You can follow all the action here, including fair use posts by guest bloggers, videos about fair use, and a live panel on Friday. You can also follow twitter.com/fairuseweek for more updates throughout the week.
Harvard’s Fair Use Week is an opportunity to reflect not only on the importance the doctrine has already had in the academic library community, but also to consider its future role in an ever-changing world of new technologies and circumstances. A professional community consensus on fair use with respect to when and how the doctrine is applied can provide powerful guidance, defining community standards and best practices. The Code of Best Practices in Fair Use for Academic and Research Libraries provides such guidance to a number of areas where fair use applies, including in the digital environment.
Fair use plays a critical role in the copyright system, promoting a balanced system respecting the rights of rightholders while also promoting the public interest and protecting the First Amendment. As a flexible doctrine, fair use can adapt to evolving technologies and new situations that may arise and its long history demonstrates its importance in promoting access to information, future innovation and creativity. Without this flexibility, the law would simply be unable to keep pace with rapid changes and advancements in technology. Within the academic library community, fair use has allowed for better service to patrons in areas of preservation, providing access to information resources, enhancing research, promoting education, among others, particularly where specific limitations and exceptions in the Copyright Law fail to address a particular situation.
The House Judiciary Committee on Subcommittee on Courts, Intellectual Property and the Internet is currently undergoing a “copyright review” and has already held four hearings, the most recent of which addressed “The Scope of Fair Use.” The hearing examined not only the current scope and practice of fair use, but also looked toward what the future of the doctrine might be, particularly whether any changes were necessary.
During the hearing, Members posed questions that covered a wide range of issues including, among others, how to define “transformative,” whether exporting the doctrine to other countries is appropriate and whether fair use is currently working for all groups. Most comments indicated that fair use is working and statutory changes are not necessary, however some raised questions regarding whether jurisprudence on fair use has been predictable. Best practices developed through community consensus and standards goes to the heart of this issue, promoting predictability for both those relying on fair use as well as for the rightholders.
Members expressed interest in best practices during the hearing. For example, Judiciary Committee Ranking Member Conyers (D-MI) referenced best practices twice during his opening statement. After noting the historic application of the fair use doctrine in a broad range of contexts which has been made possible by the flexibility of the doctrine, Conyers concluded by encouraging development best practices: “Fair use impacts all types of industries including filmmaking, poetry, photography, music, education and journalism. We must continue to encourage these industries to develop best practices.” Similarly, Rep. Lofgren (D-CA) seemed to signal interest in best practices when she asked the Chair of the subcommittee to adopt into the record the Code of Best Practices in Fair Use for Online Video.
This interest in best practices is not limited to the legislative branch. While courts are guided by the four statutory fair use factors, in practice, they have also looked to the standard practices of the communities from which the case originates in determining whether fair use applies in a given circumstance. Codes of best practices can guide members of those communities in determining whether fair use applies in a particular circumstance and how to exercise this doctrine in a manner considered acceptable in that particular professional community, thereby minimizing risk of litigation.
The Code of Best Practices in Fair Use for Academic and Research Libraries is therefore an important and useful tool for academic and research libraries making determinations as to what activities are likely to fall under fair use and how to exercise the doctrine. Developed by and for the academic and research library community, the Code identifies eight areas where fair use is commonly exercised and articulates the principles describing each circumstance, a list of considerations to inform these practices, the limitations that are recommended, and enhancements that could strengthen the case for fair use in those situations. These areas include:
Supporting teaching and learning with access to library materials via digital technologies;
Using selections form collection materials to publicize a library’s activities, or to create physical and virtual exhibitions;
Digitizing to preserve at-risk items;
Creating digital collections of archival and special collections materials;
Reproducing materials for use by disabled students, faculty, staff and other appropriate users;
Maintaining the integrity of works deposited in institutional repositories;
Creating databases to facilitate non-consumptive research uses (including search); and
Collecting material posted on the world wide web and making it available.
While some may be hesitant in exercising fair use because of perceived unpredictability, the Code of Best Practices provides reassurances that such activities are considered to be fair use in the community, a factor likely to be looked upon favorably by both Congress and the courts. Such best practices lend predictability to the fair use doctrine, demonstrating a consensus view on the areas where fair use should be exercised and the limitations that should be observed.
Congress need not make statutory changes to a doctrine that has served the public well, providing a crucial “safety valve” in copyright law. Instead, professional communities should continue to develop and rely upon best practices, such as the Code of Best Practices in Fair Use for Academic and Research Libraries, lending greater predictability and certainty to fair use, including in areas of emerging technology.
Fair Use Gaining Popularity: Australian Law Reform Commission Proposes Fair Use, Prohibition Against Contracting Out of Specific Copyright Exceptions for Libraries
On February 13, 2014, the Australian Law Reform Commission (ALRC) issued a 478 page report on “Copyright and the Digital Economy” which made a number of positive recommendations for copyright reform in Australia. A significant portion of the report focused on limitations and exceptions including a recommendation that Australia adopt fair use (or, failing that, to revise its current fair dealing provision), noting the benefits of a flexible standard. In addition to its numerous other recommendations, the ALRC report also examined the practice of using contracts to prohibit or hinder the use of particular limitations and exceptions and recommended an express prohibition against contractual provisions that would restrict specific libraries and archives exceptions.
Below are some highlights from the ALRC report on these two issues.
The ALRC report expressly recommended inclusion of a fair use exception largely modeled after the United States’ statutory provision on fair use, including a non-exhaustive list of factors—essentially mirroring the four fair use factors in the United States Copyright Law—and a non-exhaustive list of illustrative uses or purposes that may qualify as fair use. This recommended list of illustrative purposes includes all of the uses contained in the chapeau to 17 U.S.C. 107, while also recommending the additions of parody or satire; professional advice; quotation; non-commercial private use; incidental or technical use; library or archive use; and access for people with disabilities. Of course, although the United States’ provision does not contain these exact phrases within the statutory language of the fair use provision, courts have often upheld fair use in the context of such purposes.
Arguments for Fair Use
The ALRC report summarized the arguments made in favor of introducing a fair use provision into Australian Law, including that fair use is flexible and technology-neutral; promotes public interest and transformative uses; assists innovation; aligns with reasonable consumer expectations; helps protect right holders’ markets; is sufficiently certain and predictable; and is compatible with moral rights and international law.
ALRC emphasized the benefits of fair use in adapting to evolving technology:
Fair use differs from most current exceptions to copyright in that it is a broad standard that incorporates principles, rather than a detailed prescriptive rule. Law that incorporates principles or standards is generally more flexible than prescriptive rules, and can adapt to new technologies and services. A fair use exception would not need to be amended to account for the fact that consumers now use tablets and store purchased copies of copyright material in personal digital lockers in the cloud.
As a flexible standard, capable of adapting to changing environments, particularly in the digital age, legislatures need not respond to each new circumstance with a new specific limitation or exception. Thus, the ALRC report noted that “Almost 30 existing exceptions could be repealed, if fair use were enacted. In time, others might also be repealed. Replacing so many exceptions with a single fairness exception will make the Copyright Act considerably more clear, coherent and principled.”
In addition, the ALRC report made several references to the benefits of fair use in the educational context. It noted, for example, that the Google Books decision “demonstrates the potential of fair use to advance education and learning and to benefit authors and content owners.” Additionally, pointing to the flaws of the currently enacted fair dealing provision under Australian Law, the ALRC report noted that universities
were in a “worse position” than large commercial enterprises in terms of being able to use third party copyright material for socially beneficial purposes. Commercial news organisations can rely on the fair dealing exception for news reporting, but there is no equivalent specific exception for universities for fair use for educational purposes. Universities Australia submitted that, from a policy perspective, ‘”this makes little sense.”
In addition to the general public benefits to a flexible fair use provision, the ALRC report suggested that adopting fair use will actually increase respect for copyright. It pointed out that the independent UK Hargreaves Review found that growing disagreement over what is permitted under copyright and reasonable consumer expectations undermined the copyright system. The ALRC agreed with Hargreaves’ assessment and noted, “The public is more likely to understand fair use than the existing collection of complex specific exceptions; the exception will seem more reasonable; and this may even increase respect for and compliance with copyright laws more broadly.”
Predictability of Fair Use
The report also addressed criticisms that a flexible fair use standard resulted in too much uncertainty and concluded that fair use is actually quite predictable. The report pointed to Professor Pamela Samuelson’s 2009 article, Unbundling Fair Uses which found that “fair use is both more coherent and more predictable than many commentators have perceived once one recognizes that fair use cases tend to fall into common patterns.”
Furthermore, the ALRC noted that inclusion of a fair use provision in Australian Copyright Law would not introduce a “novel or untested” concept:
Fair use builds on Australia’s fair dealing exceptions, it has been applied in US courts for decades, and it is built on common law copyright principles that date back to the eighteenth century. If fair use is uncertain, this does not seem to have greatly inhibited the creation of films, music, books and other material in the world’s largest exporter of cultural goods, the United States.
Finding that fair use is predictable and “no less certain than Australia’s current copyright exceptions,” the ALRC report went on to point out that fair use determinations can be “guided by the fairness factors, the list of illustrative purposes, existing Australian case law [on fair dealing], other relevant jurisdictions’ case law, and any industry guidelines and coeds of practice that are developed.”
Furthermore, in concluding that adoption of a fair use provision would be beneficial, the ALRC report found that, “Although standards are generally less clear in scope than detailed rules, a clear principled standard is more certain than an unclear complex rule. The Report recommends replacing many complex prescriptive exceptions with one clear and more certain standard—fair use.”
Another significant recommendation of the ALRC report would prohibit contractual provisions that limit or prohibit libraries and archives from exercising the specific limitations and exceptions from which they benefit. The report concedes that while freedom of contract is an important principle, specific contractual provision may lead to significant problems:
contracting out has the potential to render exceptions under the Copyright Act inoperative. Contractual terms excluding or limiting copyright exceptions are commonly used. While contracts may create clarity and provide copyright users with permission to use materials in ways that would otherwise be an infringement, some contractual terms can also erode “socially and economically important uses of copyright works.” Further, copyright users are often unable to negotiate the terms on which copyright materials are licensed, particularly where contracts are entered into online.
The report concluded that allowing such contracts “puts at risk the public benefit that copyright exceptions are intended to provide.” In particular, ALRC found this issue to be particularly relevant to libraries and archives, noting that the beneficiaries of specific exceptions and limitations for libraries and archives are “users of the libraries” and “The fact that users of libraries and archives benefit from these exceptions, but are not parties to the licensing arrangements entered into by libraries and archives, makes it easier to argue that these exceptions should not be able to be removed by contract.” Thus, the ALRC report expressly recommended that:
Recommendation 20–1 The Copyright Act should provide that any term of an agreement that restricts or prevents the doing of an act, which would otherwise be permitted by specific libraries and archives exceptions, is unenforceable.
FCC Chairman Wheeler Issues Net Neutrality Statement, Calls for Public Comment
On February 19, 2014, FCC Chairman Tom Wheeler issued a statement on the FCC’s Open Internet Rules. This statement, a response to the Court of Appeals for the D.C. Circuit’s ruling in Verizon v. FCC overturning the agency’s anti-discrimination and anti-blocking rules, reaffirmed the FCC’s commitment to preserving a free and open internet. ARL’s statement regarding Verizon v. FCC can be found here.
Chairman Wheeler’ noted that while the D.C. Circuit overturned the anti-discrimination and anti-blocking rules, it affirmed the FCC’s broad authority to regulate under Section 706 of the Telecommunications Act. Chairman Wheeler went on to say that the FCC would not appeal the D.C. Circuit’s judgment but would instead work to propose new rules under its Section 706 authority. He stated that the FCC “will carefully consider how, consistent with the court opinion” the agency can ensure that blocking and discrimination do not take place on the Internet.
Although it does not appear that the FCC will take steps to reclassify broadband providers as a telecommunication service from its current classification as information service at this time, it has not ruled out this possibility. Chairman Wheeler’s statement explicitly noted that “as long as Title II—with the ability to reclassify Internet access service as a telecommunications service—remains a part of the Communications Act, the Commission has the ability to utilize it if warranted” and such “authority remains open.”
Furthermore, Chairman Wheeler noted that the FCC would be soliciting public comment and opened a new docket entitled “Protecting and Promoting the Open Internet.” While no deadline has been set for comments, the docket states that “comments filed within the next thirty days will be especially helpful.”
The Day We Fight Back: NSA Reform Bills To End Mass Surveillance and Provide Greater Transparency
Today, February 11, 2014, individuals and groups are participating in “The Day We Fight Back,” a day of action protesting the government’s mass surveillance programs. Revelations about the NSA programs, including the breadth and scope of bulk collection of data conducted under Section 215 of the PATRIOT Act (also known as the “library records provision”) have raised serious concerns regarding curtailment of civil liberties and the compatibility of these programs with the First and Fourth Amendments.
Following revelations about the NSA bulk collection of data, members of Congress have introduced various bills to address concerns regarding privacy and civil liberties. Members of Congress have also cited concerns regarding the lack of public trust resulting from the secrecy of the FISA Court, which involves a non-adversarial proceeding where only the government’s views are heard and the opinions have been kept secret. As Benjamin Franklin stated, “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.” Members of Congress have likewise noted that the choice between security and liberty is a false one; civil liberties represent a cornerstone of the very American values Congress’ sought to defend in enacting provisions to enhance national security.
Even prior to these disclosures, the library community expressed reservations regarding legislation granting the government overly broad national security powers and urged necessary reforms to Section 215 and the national security letters (NSLs) program (which allows collection of data and communication without a warrant). These recommendations included, among others, requiring clear connections to a terrorist or spy for a valid order collecting information, greater judicial oversight and review of FISC decisions, prevention of bulk surveillance of categories of persons, rational limits on the scope of NSLs, and promotion of greater transparency.
Reform efforts are currently underway, some addressing changes previously advocated for by the library community. Last week, the House Judiciary Committee held a hearing examining proposed reforms to FISA, and tomorrow the Senate Judiciary will hold a hearing on reforms proposed by the Privacy and Civil Liberties Oversight Board (PCLOB). With Congress prepared to take an active, and likely swift, role in reforming statutes related to intelligence gathering, three bills show promise in better protecting privacy and civil liberties, promoting greater transparency, and restoring the public trust: the USA FREEDOM Act, the Intelligence Oversight and Surveillance Reform Act, and the Ending Secret Law Act/FISA Court in the Sunshine Act of 2013. The USA FREEDOM Act and Intelligence Oversight and Surveillance Reform Act are comprehensive bills, addressing not only transparency, but also the core issues regarding the collection of data.
USA FREEDOM Act
Representative Sensenbrenner (R-WI) and Senator Leahy (D-VT) introduced identical bills known as the USA FREEDOM Act, on October 29, 2013. The House bill, H.R. 3361, initially had seventy-eight bipartisan co-sponsors. As noted by Ranking Member Conyers (D-MI), the bill now has 130 supporters, with an even split between Republicans and Democrats. The Senate bill, S. 1599, now has nineteen bipartisan co-sponsors.
The USA FREEDOM Act would effectively end bulk collection of data currently collected by the NSA. The amendments proposed by the USA FREEDOM Act would permit the government to request only the records of that “pertain to” a “foreign power or an agent of a foreign power,” the records about the activities of such person under investigation, and records of individuals in contact with such person.
The bill would reform the NSLs program, which currently allows the FBI to request communication and other data without a warrant. The bill seeks to harmonize NSLs with the amendments proposed to the Section 215 program and is designed to prevent bulk collection of records.
With respect to the FISA Court, also known as FISC, the bill would create an Office of the Special Advocate, designed to advocate on behalf of interpretations that protect privacy rights and civil liberties and effectively ending the current ex parte proceedings wherein only the government’s view is heard. The Special Advocate would also be permitted to appeal FISC decisions. In addition to providing a voice for the public’s privacy rights, the USA FREEDOM Act would enhance transparency by requiring the government to make regular reports estimating the total number of individuals subject to FISA orders regarding electronic surveillance, pen registers, and business records. The bill would also direct the Attorney General to declassify decisions or summarize FISC decisions of significant interpretation, consistent with national security considerations.
The USA FREEDOM Act would not only promote greater transparency of FISC opinions and orders, but would also allow companies to publicly report the number of FISA orders and national security letters received and the number of users or accounts where information was demanded under such orders. It also places an obligation on the government to publicly report estimates of the total number of individuals and U.S. persons subject to FISA orders or NSLs.
The USA FREEDOM Act introduces a number of meaningful and necessary reforms.. This bill could be further improved, however, if it incorporated key elements of the USA PATRIOT Amendments Act of 2009, a bill that was introduced but never passed. That bill included several other reforms, including the prohibition of the use of Section 215 orders to obtain personally identifiable information about patrons from libraries, greater judicial review of both Section 215 orders and NSLs, and minimization procedures to ensure destruction of information obtained under national security powers once they are no longer relevant to an ongoing investigation.
Intelligence Oversight and Surveillance Reform Act
In September 2013, Senator Wyden (D-OR) introduced the Intelligence Oversight and Surveillance Reform Act. The bill now has thirteen co-sponsors, also with bipartisan support. Both the Intelligence Oversight and Surveillance Reform Act and the USA FREEDOM Act propose comprehensive reform to the surveillance programs. While the bills are not identical, many of the provisions are substantially similar and largely address the same issues, including effective prohibition of bulk collection under Section 215, harmonization of NSLs with the reforms to Section 215, providing special advocates in FISC proceedings, and greater transparency of FISC opinions and program’s collection of data.
Ending Secret Law Act/FISA Court in the Sunshine Act of 2013
Two bills designed to provide greater transparency of FISC orders, opinions and decisions (currently kept secret) were introduced into both the Senate and House. The Senate bill, Ending Secret Law Act, S.1130 was introduced by Senator Merkley (D-OR) and has bipartisan co-sponsorship. A nearly identical bill entitled FISA Court in the Sunshine Act, H.R. 2440, was introduced by Representative Jackson Lee (D-TX) and also has bipartisan support.
The bill would require the Attorney General to disclose each FISC decision and order, unless such opinion or order cannot be declassified without harming national security interests. If declassification is not possible, the Attorney General is directed to disclose a summary of the opinion. If a summary of the opinion is not possible, the Attorney General is required to make a report available to the public on the “status of the internal deliberations and process regarding the declassification.”
The Ending Secret Law Act/FISA Court in the Sunshine Act would provide greater transparency to FISC decisions and orders than the USA FREEDOM Act by requiring disclosure of each decision, order or opinion, not just those involving significant interpretations. Certainly, the reforms proposed by these bills are welcome as they promote greater transparency and enhance public debate surrounding the important intersection of security and civil liberties.
Observations from House Judiciary Committee Hearing on Surveillance and FISA Reforms
On February 4, 2014, the House Judiciary Committee held a hearing on “Examining Recommendations to Reform FISA Authorities.” The written testimony of the six witnesses and the statement of Chairman Goodlatte (R-VA) are available here. Ranking Member Conyers’ (D-MI) opening statement is available here.
The witnesses were divided into two panels. The first panel included James Cole (Department of Justice), Peter Swire (President’s Review Group on Intelligence and Communications Technology), and David Medine (Privacy and Civil Liberties Oversight Board). The second panel included Steven Bradbury (Dechert, LLP), Dean Garfield (Information Technology Industry Council) and David Cole (Georgetown University Law Center). The vast majority of the time and questioning from Members of Congress was spent on the first panel.
The focus of the hearing was on Section 215 of the PATRIOT Act (the section known as the library records provision under which the NSA claimed authority to collect bulk data of telephone records; this provision could also be used to obtain other “business records” including library records). Some questions also covered the Section 702 program, which targets non-U.S. persons. The majority of the Committee members appeared to support reforms to the program, with numerous members pointing to their support for the USA FREEDOM Act. Several members also focused on the need to restore trust amongst the American people.
During opening statements, Chairman Goodlatte noted that President Obama had not articulated how the bulk collection of telephony metadata had thwarted terrorist plots. He also questioned the President’s proposal to transfer the storage of bulk data to private companies, pointing to recent security breaches of Target and Yahoo!.
Ranking Member Conyers called the Section 215 bulk collection program ineffective, inconsistent with American values and inconsistent with the statutory language. He pointed out that Section 215 of the PATRIOT Act is scheduled to sunset on June 1, 2015 and if the bulk collection issue is not addressed, the Government risks losing Section 215 in its entirety. Conyers praised H.R. 3361, the USA FREEDOM Act, which has 130 House Members supporting the bill with an even split between Democrats and Republicans (Senator Leahy introduced an identical bill in the Senate), a point reiterated by several other members of the Judiciary Committee. The bill, among other things, would amend Section 215 to prohibit bulk collection and require showing a nexus between the business records sought and the person targeted.
James Cole, Deputy Attorney General at the U.S. Department of Justice (DOJ), statement focused on President Obama’s January 17, 2014 speech laying out proposed reforms, including having third party storage of the bulk data, establishing an independent voice before the FISA courts, and establishing greater transparency. He also argued that the bulk collection of telephony metadata was constitutional and permitted under the PATRIOT Act.
Several members questioned Cole regarding the value of the bulk collection of telephone data and the appropriate metric in assessing its benefits. He repeatedly asserted that the program was useful and that pointing to the number of terrorist plots thwarted was not an appropriate metric in assessing the value of the Section 215 program, though Cole did not provide an alternative metric other than to call the program “helpful.”
Peter Swire of the President’s Review Group (PRG) gave an overview of the makeup of the review group and the scope of their report. He noted that while the Privacy and Civil Liberties Oversight Board had done legal analysis around the statutory language of Section 215 and the First and Fourth Amendments, this analysis was not undertaken by the President’s Review Group.
In response to criticisms regarding the risks of permitting third parties to house the bulk data, particularly in light of security breaches, Swire pointed out that the NSA has had leaks and all databases are at risk. He also noted that telephone companies already collect the data and requiring them to store such data would not create any new harms.
David Medine, Chairman of the Privacy and Civil Liberties Oversight Board (PCLOB), gave an overview of the conclusions of the recently issued report on Section 215, noting that PCLOB would be issuing a separate report on Section 702 in the coming months. He pointed to the PCLOB’s majority conclusion that the Section 215 program violated the statutory parameters of the PATRIOT Act, but also raised serious concerns regarding the First and Fourth Amendments. He noted that the benefits of bulk collection were “modest at best” and such benefits were outweighed by the concerns regarding civil liberties and privacy. The Board recommended termination of the Section 215 bulk collection program.
Medine also pointed out that the Administration’s interpretation of Section 215 takes an overly expansive view of the term “relevant.” He noted that Congress intended to put limits on Section 215 when it was created, but that these limits were ignored with an interpretation that “relevant” covered everything.
Representative Sensenbrenner (R-WI) pointed out that he was the principal author of the PATRIOT Act as well as its two reauthorizations (Sensenbrenner also introduced the USA FREEDOM Act into the House) and that the revelations about how Section 215 was being used were a shock, a sentiment later echoed by Representative Lofgren (D-CA). Sensenbrenner asserted that there was no way that the PATRIOT Act, as interpreted by the Administration, would have been approved or reauthorized if debated in Congress and that no fair reading of the Act could support the bulk collection of telephony metadata. When Cole stated that the DOJ had not taken a position on the USA Freedom Act, Sensenbrenner suggested that the DOJ quickly take a position because the Government is faced with a choice between the USA Freedom Act or having no authority when June 1, 2015 comes around and Section 215 expires. These sentiments were echoed by Representative Nadler (D-NY)
Representative Bachus (R-AL) seemed to be one of the few Committee members that did not want to see changes made to the program. He cited a letter by Judge John Bates, which expressed concerns in allowing a public advocate participate in FISA Court hearings.
Representative Lofgren (D-CA) asked what data, other than telephone data, could be collected. She asked whether credit card information or Internet browser cookies could be collected. Cole argued that not everything could be collected, only what was “necessary.”
Both Lofgren and Representative Issa (R-CA) asked whether the telephony metadata of Members of Congress had been collected. Swire said that to his knowledge, nothing had been screened out. Cole agreed that there was no reason to think otherwise, but argued that because the data had been collected into a database did not mean that it had been looked at. Issa also asked whether telephony metadata of the Executive Branch, including the President’s, as well as the records of the numerous embassies in the United States, had also been collected and Cole stated that he believed every phone number’s metadata was included in the database.
Representative Poe (R-TX) asked Cole to name a criminal case that had been filed as a result of the metadata program. Cole stated that there may be one material support case, but argued that the point of the statute was not to pursue criminal cases but to gather foreign intelligence.
Steven Bradbury, attorney at Dechert, LLP and former head of the Office of Legal Counsel at the DOJ, argued that the NSA programs did not violate any statutory or constitutional laws. He argued that numerous FISA court judges had upheld the programs. He also asserted that all Members of Congress were informed about or had the opportunity to be briefed on the details of the Section 215 and 702 programs during their reauthorizations. He stated that the programs were critically important and argued against any changes, expressing disappointment with President Obama’s proposals to reform the programs.
Dean Garfield, President and CEO of the Information Technology Industry Council, pointed to the impacts that the revelations about bulk collection of data have had on the information and communications technology sector. He stated that the revelations about the programs had eroded trust in U.S. companies and the security of the data they collect. He also warned that forcing localized storage could result in “Balkinization” of the Internet. He advocated for greater transparency and oversight, as well as clarification of what Section 215 permits.
Some members raised concerns about how U.S. companies could be disadvantaged globally as a result of the NSA revelations, a point on which Garfield agreed. He noted that concerns included cost, storage concerns, and the public lack of trust, including the perception that companies are not independent from the U.S. Government.
David Cole, Professor of Constitutional Law and National Security at Georgetown University Law Center, expressed support for the USA FREEDOM Act. He pointed out that because of evolving technology, privacy law must be adapted in light of the increased ease of collecting massive amounts of data. He also argued against defenders of the NSA collection practices by pointing out that the former NSA general counsel had stated that metadata can reveal an enormous amount about a person’s life and with enough metadata, content is unnecessary.
Chairman Goodlatte questioned Bradbury, pointing to concerns about privacy when bulk data is collected. Bradbury responded that there were hypothetical concerns about abuse, but these concerns did not match the reality of the programs. He also pointed out that the Securities and Exchange Commission, Federal Trade Commission and Consumer Financial Protection Bureau also collect massive amounts of data and that the NSA should not be singled out.
Lofgren raised concerns regarding the expectations of privacy in the modern world. In response, Cole stated that the defining question is how to preserve the right to privacy in the face of new technologies and that it was the responsibility of Congress to address these issues. He said that without Congressional action, there is a risk of surrendering privacy to the digital age.
Representative Nadler called the FISA court a “kangaroo court” because of its one-sided and secretive nature. He pointed out that while technology evolves and metadata is collected, people still have an expectation of privacy. Cole then pointed out that the metadata collection programs were the same as issuing a general warrant.
Fair use, originally a common law doctrine, is codified under Section 107 of the Copyright Act and permits reproduction and other uses of copyrighted works for purposes such as criticism, comment, news reporting, teaching, scholarship and research. The statute includes four factors for consideration, including the character of the use, the nature of the work, the amount used in proportion to the whole, and the impact on the market for the work. Failure to meet all four criteria, however, does not bar a finding of fair use. Fair use is flexible and determinations for qualification under this doctrine are made on a case-by-case. Many of the statements made during the hearing, as well as the questions from Members, focused on the first factor, in particular the proper interpretation and application of whether a use has been “transformative.”
The hearing included five witnesses: Professor Peter Jaszi (American University); Professor June Besek (Columbia University); Naomi Novik (Author and co-founder of Organization for Transformative Works); David Lowery (Singer/Songwriter and Lecturer, University of Georgia); Kurt Wimmer (General Counsel of the Newspaper Association of America). For the most part, the witnesses did not recommend any statutory changes to Section 107 of the Copyright Act, even when they did not agree with particular court rulings regarding fair use. All witnesses seemed to agree that the courts are in the best position to determine whether a use is fair. Below are some brief observations from the hearing.
Testimony from Witnesses
Professor Peter Jaszi spoke first and gave background to the fair use doctrine, noting that the “transformative use” test was considered “unified field theory.” He also spoke on how courts have applied fair use in ways that both foster future innovation and serve the public interest. He suggested that, despite criticisms to the contrary, the jurisprudence on fair use is fairly predictable and coherent. He opposed reform to fair use, but suggested that the doctrine could use support, such as through changes in the statutory damage regime.
Professor June Besek went next and argued that fair use has been expanding. She criticized the application of fair use that has allowed new business models, rather than just new works of authorship. She suggested that “transformative use” has caused confusion with derivative works and argued that the pendulum has moved too far in the direction of the users.
Naomi Novik spoke next, beginning with her background as a New York Times bestselling author who, prior to writing her first novel, wrote fan-fiction and was a remix artist. She analogized fan-fiction to telling stories around a campfire. She also argued that licensing is unrealistic for both the writers of fan-fiction as well as the original authors because of the time, money and legal concerns. She suggested that Congress should lower damages in order to make fair use less frightening for the everyday person. She also proposed an exemption for non-commercial uses, such as those telling their stories around a metaphorical campfire.
David Lowery, a singer/songwriter, followed and clearly stated that fair use is working for the music industry. He raised concerns, however, about two particular areas where he felt that there were efforts to expand fair use to uses he did not think were covered under the statute. These areas include remixing and lyric websites. He noted that some music genres, such as hip hop, continue to flourish under licensing and fair use need not be expanded to promote these works. He also asserted that lyric websites that include annotations of the lyrics are not fair use and argued that it is not hard to ask for permission.
Kurt Wimmer, the final witness on the panel, serves as general counsel of the Newspaper Association of America. He noted that newspapers are rightholders, but also are reliant on fair use. He noted that while he does not agree with every fair use decision, the courts are in the best position to make these determinations. He expressed some concerns about the breadth of recent court decisions regarding transformative uses, but cited his support for the Swatch v. Bloomberg case that came down in favor of Bloomberg’s fair use argument just the day prior.
Questions From Members
Following witness statements, several Members posed questions to the witnesses. These questions covered a wide range of issues, including, among others, how to define “transformative,” whether exporting the doctrine of fair use to other countries is appropriate, and whether fair use is currently working for all groups.
In general, it seemed that all witnesses agreed that the fair use doctrine should continue to be interpreted and applied by the courts and the proposed solutions to perceived areas of concerns could be done outside the scope of Section 107 (such as recalibration of damages). Although there was some disagreement between witnesses over whether particular uses would, or should, qualify as fair use, the witnesses agreed on the importance of this doctrine.
Fair use, of course, has been of critical importance in supporting libraries’ key functions and allowing it to serve its patrons. Although specific limitations and exceptions exist elsewhere in the Copyright Act, many of which libraries frequently use, fair use allows libraries to act where these specific exceptions are too narrowly drawn, where no exceptions exist, or when technological advances outpace the law. Although the Members at the hearing seemed to take a keen interest in fair use, given the testimony of witnesses, hopefully Congress will agree that fair use generally works well.
LCA Statement on House Judiciary Hearing on Scope of Fair Use
On Tuesday, January 28, 2014, the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held another hearing on copyright review. This hearing focused on the scope of fair use and included five witnesses: Professor Peter Jaszi (American University); Professor June Besek (Columbia University); Naomi Novik (Author and co-founder of Organization for Transformative Works); David Lowery (Singer/Songwriter and Lecturer, University of Georgia); Kurt Wimmer (General Counsel of the Newspaper Association of America).
Fair use, originally a common law doctrine, is codified under Section 107 of the Copyright Act and permits reproduction and other uses of copyrighted works for purposes such as criticism, comment, news reporting, teaching, scholarship and research. The statute includes four factors for consideration, including the character of the use, the nature of the work, the amount used in proportion to the whole, and the impact on the market for the work. Failure to meet all four criteria, however, does not bar a finding of fair use. Fair use is flexible and determinations for qualification under this doctrine are made on a case-by-case.
In advance of the hearing, the Library Copyright Alliance (LCA) submitted a written statement discussing how libraries rely on fair use in order to serve their users and meet their mission; how the federal government relies on fair use for photocopying and in the patent examination process; and how rights-holders rely on fair use in developing new works. The statement concludes that no changes are needed to the fair use doctrine.
Fair Use and Libraries
The LCA statement begins by noting the numerous areas where fair use allows libraries to achieve their missions and serve library patrons, including “the preservation of and providing access to our cultural, historical, local and scientific heritage; supporting and encouraging research, education, literacy and lifelong learning; and providing a venue for community engagement on a host of issues.” The statement recognizes fair use as “the most important limitation on the rights of the copyright owner – the most important ‘safety valve’ of U.S. copyright law for the public.”
Giving a few specific examples, the LCA statement first points to the importance of fair use for mass digitization of works, including for purposes of creating full-text searches, preservation, and providing access to users with disabilities. Libraries also rely on fair use to ensure digital preservation and provide tailored access programs to orphan works, those works where it is difficult or impossible to identify and locate the rightholder. Fair use also permits libraries to improve accessibility for person who are visually impaired or have other disabilities.
Supporting teaching and learning with access to library materials via digital technologies; using selections form collection materials to publicize a library’s activities, or to create physical and virtual exhibitions; digitizing to preserve at-risk items; creating digital collections of archival and special collections materials; reproducing materials for use by disabled students, faculty, staff and other appropriate users; maintaining the integrity of works deposited in institutional repositories; creating databases to facilitate non-consumptive research uses (including search); and collecting material posted on the world wide web and making it available.
Fair Use and the U.S. Government
The LCA statement points out that libraries are not the only entities that rely on fair use and federal agencies have relied on this doctrine in the patent examination process and for photocopying materials. A 2012 opinion issued by the general counsel of the U.S. Patent and Trademark Office (USPTO) concluded that copying and distribution of non-patent literature for use in providing those copies to applicants during the examination process; providing entire copies of the patent histories to the public; and applicants copying non-patent literature for submission to the USPTO were all covered by fair use. Similarly, a 1999 opinion issued at the request of the Department of Commerce noted that fair use was a critical component in supporting the constitutional rationale of copyright. It found that the public interest could be advanced through the use of government photocopying and was therefore relevant to the fair use inquiry. It cautioned the Department of Commerce and other federal agencies against negotiating license deals to permit photocopying where such photocopying was covered by fair use and therefore not infringing.
Fair Use and Rights-Holders
In addition to libraries and the federal government, content producers and rights-holders also rely on fair use. As noted in the LCA statement, two recent cases where infringement suits were brought against rights-holders, these rights-holders asserted that fair use was critical in promoting the progress of science and protecting the First Amendment.
In Bouchat v. Baltimore Ravens, for example, the Fourth Circuit found that “Fair use …is crucial to the exchange of opinions and ideas. It protects filmmakers and documentarians from the inevitable chilling effects of allowing an artist too much control over the dissemination of his or her work for historical purposes.” Furthermore, in its amici brief, film associations noted the importance of fair use in the creation of new content, noting that “Much creative culture is iterative; new works often do not arise in a vacuum, but rather are influenced by and draw upon the creative works that came before. As the Supreme Court held in Campbell, highly transformative works lie at the heart of fair use’s protection: they are the new expression that copyright law is meant to promote.”
Similarly, the LCA statement points to the case White v. West Publishing, where large publishers relied on fair use after creating a database product calling the doctrine a “necessary tool to further the goals of copyright law.”
The LCA statement recommends against changes to Section 107 of the Copyright Act, noting that the fair use doctrine has been successfully relied upon by diverse constituencies, including libraries, students, teachers, government agencies, patent applicants, artists and media companies.
Power to the People: Five Reasons Fair Use Best Practices Are Changing the World
by guest bloggers Patricia Aufderheide, University Professor, American University School of Communication; Brandon Butler, Practitioner-in-Residence at the Glushko Samuelson IP Clinic, American University Washington College of Law; and Peter Jaszi, Professor of Law and Faculty Director of the Glushko-Samuelson Intellectual Property Clinic, American University Washington College of Law
Copyright Week is the perfect occasion to celebrate fair use, certainly the most dynamic and arguably the most important doctrine in copyright law. The last 15 or 20 years have seen a remarkable series of developments that make fair use, now more than ever, the most vital protection of the public interest in the Copyright Act. For Copyright Week, we wanted to highlight a part of the fair use landscape that, perhaps more than any other, puts fair use in the hands of practitioners who need it most: the Fair Use Best Practices movement.
With a little help from a team of researchers at American University, an ever-growing cadre of communities has identified where their work necessarily encounters copyright and the kinds of fair uses that are essential to the communities’ continued flourishing and success. Each code (read them all here) contains a short but powerful description of fair use’s broad history and meaning, followed by a set of principles that describe situations where fair use may apply accompanied by limitations that describe the outer bounds of community consensus. The effects of these documents can be dramatic. Documentary filmmakers came first, and had great success, but they’ve been joined by educators, scholars, poets, online video makers, journalists, and (most importantly for this blog) librarians. As more and more people need fair use to continue getting things done, best practices are an idea whose time has come.
So, without further ado, we give you five reasons fair use best practices are changing the world:
They’re based on solid legal footing. Specifically, path-breaking research by copyright scholar Michael Madison. Madison surveyed over a century of fair use decision making and found that, over and over again, courts determining whether a use was fair inquired into the mission and values of the communities standing before them to vindicate their fair use rights. Uses firmly grounded in the socially beneficial mission of a practice community were much more likely to be blessed as fair.
Each code starts from that insight, together with the dominant paradigm of “transformative use” that informs court decisions in fair use. The community norms developed on this foundation are then further shored up by a legal review by five independent experts from diverse backgrounds who certify that the Code represents a reasonable application of fair use law to the practice area. Practices consistent with the Documentary Filmmakers Code have been blessed by federal courts, as have practices identified as fair in the #Librarianscode. Indeed, between Georgia State and HathiTrust, the practices described in four of the eight principles in the #librarianscode have been blessed by federal courts.
They clear away the crud. Anyone who engages with copyrighted material for more than a few minutes will encounter a dizzying array of so-called ‘guidelines,’ rules of thumb, ‘negotiated’ agreements, and urban myths and legends that proliferate around copyright. The goal of best practices is to identify the best approaches to recurring fair use scenarios, rather than to measure the lowest common denominator of the status quo and freeze it in amber forever. Therefore, developing best practices is an opportunity for communities to step back and question current practice in light of the latest developments in fair use law and the broadest, deepest understanding of the mission of the community. Librarians, for example, categorically rejected the arbitrary numerical limits in the 1976 Classroom Photocopying Guidelines. On reflection, they were simply impossible to justify in light of the actual needs of librarians and the contours of modern fair use law.
They make the law less alien, and rights less scary. By grounding fair use choices in practices and norms that are native to a community, best practices change attitudes toward fair use. People with a Code go from a kind of grudging, fearful “compliance” with an alien copyright law imposed from above to a unified exercise of core First Amendment rights that emerges from their own values. Teachers, librarians, filmmakers, and poets who used to feel like they were acting alone in the face of an intimidating body of law come to understand that they are actually engaged collectively in legitimate, lawful acts that are normal, indeed essential, for their profession.
They help you get things done. The bottom line for any group with a shared mission and goals is whether they are able to advance mission and achieve goals. Where myth, misinformation, fear, uncertainty, and doubt dominate, any number of important projects and practices can be suppressed, driven underground, or stymied altogether. Films don’t get made, or they don’t get distribution; poems aren’t written or published; works languish in archives inaccessible to remote or print-disabled researchers. Best practices are relentlessly pragmatic and mission-centered; through them, practitioners articulate fair use solutions to real, live problems. When the community takes best practices seriously, real work gets done—work that might otherwise have been inconceivable.
They help you get management on board. Almost everyone has a supervisor, counselor, or other gatekeeper who decides what projects they can pursue, whether their work will see the light of day, and so on. Whether it’s a Dean, a TV producer, or a publishing agent, sooner or later you’ve got to convince someone else that what you’re doing is legit. Understandably, gatekeepers are often expected (forced, even) to play the role of “copyright cop,” saying “no” to any project that looks like it might raise an eyebrow.
Before best practices, each practitioner would face these folks alone, often as non-lawyers, and try to convince them to take a risk based on, well, who knows what. But with best practices in hand, practitioners can go to their Deans, their publishers, their producers, whomever, and say, “What I’m doing is normal. It’s grounded in the values of my community. And it’s in line with a document that’s been vetted by experts and endorsed by leading organizations in my field.” That’s powerful stuff! No wonder the Documentary Filmmakers code has been so transformative, as has the #Librarianscode, and many many others.
So, there you have it. As Copyright Week winds down and we contemplate the copyright system we have, and the opportunities for change and improvement, we submit that fair use best practices are, by far and away, the most accessible, effective, and powerful tool in the hands of the public.
ARL Disappointed with Court Ruling on Network Neutrality
ARL has issued a statement expressing disappointment with the DC Circuit’s January 14, 2014 ruling overturning the Federal Communications Commission’s (FCC) Open Internet Order’s anti-discrimination and anti-blocking rules. Research libraries, as providers of content and services on the Internet, research libraries and their parent institutions have long relied on and supported open and non-discriminatory access. The court’s ruling could result in prioritized delivery for those willing to pay to promote their content, advancing commercial interests over research library and higher education interests. ARL’s full statement is available here.
Carol Pitts Diedrichs, president of ARL stated, “The intellectual freedom that libraries, colleges, and universities have long championed would be threatened if network operators act as gatekeepers, bar access to competing or nonprofit voices, or relegate unpopular or non-commercial expression to the Internet’s slow lanes. We look forward to working with the FCC in considering the avenues available to ensure effective network neutrality and open Internet rules going forward.”
Notably, the DC Circuit did uphold the FCC’s broad authority to regulate broadband services, leaving open the possibility of further FCC action to promote net neutrality. The court noted that the FCC “reasonably interpreted section 706 [of the Telecommunications Act of 1996] to empower it to promulgate rules governing broadband providers’ treatment of Internet traffic, and its justification for the specific rules at issue here—that they will preserve and facilitate the ‘virtuous circle’ of innovation that has drive the explosive growth of the Internet—is reasonable and supported by substantial evidence.”
The FCC defended its regulations by arguing, “Internet openness … spurs investment and development by edge providers, which leads to increased end-user demand for broadband access, which leads to increased investment in broadband network infrastructure and technologies, which in turn leads to further innovation and development by edge providers.” Broadband providers provide high-speed communications technologies whereas edge providers provide content, services or applications over the Internet.
The DC Circuit agreed with the FCC’s assessment that broadband providers might abuse their power and discriminate against certain types of Internet traffic. The court noted that, “Because all end users generally access the Internet through a single broadband provider, that provider functions as a ‘terminating monopolist,’ with power to act as a ‘gatekeeper’ with respect to edge providers that might seek to reach its end-user subscribers … this ability to act as a ‘gatekeeper’ distinguishes broadband providers from other participants in the Internet marketplace—including prominent and potentially powerful edge providers such as Google and Apple—who have no similar ‘control [over] access to the Internet.’” In fact, the FCC provided evidence of four prior instances where broadband providers had utilized their “gatekeeper” function.
In rejecting the FCC’s anti-blocking and anti-discrimination regulations, the court pointed to the fact that the FCC classified broadband providers as “information service” rather than “telecommunications service.” This classification exempts providers in this category from the same obligations of “common carriers,” or traditional communication services such as landline telephone lines. It stated, “the Commission would violate the Communications Act were it to regulate broadband providers as common carriers” and ultimately concluded that these regulations amounted to common carrier obligations. The court therefore left open the possibility of the FCC reclassifying broadband providers as a “telecommunication service,” a category subject to common carrier regulations. Alternatively, the FCC could redraft its rules in accordance with the DC Circuit’s ruling to ensure that the principles of net neutrality are maintained.
LCA Hearing Statement for House Judiciary Committee Hearing on Copyright Reform
On January 14, 2014, the House Committee on the Judiciary Subcommittee on Courts, Intellectual Property and the Internet held another hearing on the issue of copyright reform, this one focusing on the broadcast right, the making available right, and state laws and building codes under copyright. In advance of the hearing, the Library Copyright Alliance (LCA) submitted a statement addressing all three issues. The full statement can be found here.
The World Intellectual Property Organization (WIPO) has considered proposals to create a broadcast treaty that would create a new intellectual property protection for broadcasters. This new right would create a right to control broadcasts and would exist in addition to the copyrights held by the creators of the programming shown, thereby creating an additional layer of rights to contend with for users of broadcasted content. The LCA statement notes that it has seen “no compelling public policy reason for a broadcast treaty” at the WIPO and, likewise, sees no justification for a broadcast right in the United States. In particular, LCA has concerns that a broadcast right could impact libraries by limiting classroom instruction, particularly for distance education; educational and research uses that are currently permitted by the Copyright Act; and public disclosure of news, public affairs programs, and public domain materials, particularly on the Internet.
Making Available Right
LCA also has concerns regarding the creation of a making available right, an exclusive right to authorize or prohibit communication of works or the “making available” of the work through interactive networks, a right that could expand the distribution and public performance rights that currently exist under U.S. law. LCA has particular concerns regarding a making available right and its impact on the three-year statute of limitations found in 17 U.S.C. §507(a). The concerns arise from courts’ interpretation of the distribution right in Hotaling v. Church of Jesus Christ of Latter-Day Saints and Diversey v. Schmidly. In these cases, the courts circumvented the three-year statute of limitations by distorting the meaning of the distribution right and finding that the mere availability of an unauthorized copy to the public qualifies as distribution, even where no patron ever borrowed the copy. The statement warns that, “A making available right has the potential to eviscerate the statute of limitations in copyright cases in the digital age. Accordingly, Congress should proceed in this area with great caution.”
A making available right could impact a wide range of activities and create liability even where an unauthorized copy of a work was never downloaded, used or truly distributed. For example, “an image [could be] included in a PowerPoint presentation that was archived on the website of a library association after the presentation was delivered. The image could be detected more than three years later by a company that crawls the web for an image-licensing firm, such as Getty or Corbis.” However, even if that presentation had never been downloaded in three-years, the creation of a making available right could overcome the three three-year statute of limitations and create liability. The LCA statement notes that “There is no policy justification for imposing strict liability for statutory damages simply because the potential existed during the three year limitation period for a person to have viewed the image, just as there is no policy justification for a library to be liable for infringing the distribution right with respect to a copy that was never borrowed.”
State Laws and Building Codes
LCA continues to oppose copyright protection for state laws in building codes and supports the Fifth Circuit’s 2002 decision in Veeck v. Southern Building Code Congress that “‘the law’ whether articulated in judicial opinions or legislative acts or ordinances, is in the public domain and thus not amenable to copyright.”
Veeck reflects the strong public policy that the public must have free access to the laws, in order to understand the legal rules to which they are subject. Notably, Veeck’s ruling was limited and applied only to reproduction of enacted model laws, not the model codes themselves, thereby continuing to provide the drafters of such codes the ability to protect their model laws or regulations through copyright.
The LCA statement supports the Fifth Circuit reasoning in _Veeck _that copyright is unnecessary to incentivize the creation of model laws or codes. As the statement notes, “The private sector spends literally billions of dollars each year lobbying legislative bodies. The notion that industry groups would stop drafting model laws that benefit them if they did not receive copyright revenues is, frankly, absurd. Certain groups might have to change their business models, but at the end of the day, the private sector will find a way to fund model law drafting activities because they simply are too important to the affected industries.”
Transparency in government is a fundamental aspect of a democratic society. Citizens have the right to be informed and have access to information regarding political affairs and the laws and regulations that will impact them. Without access to information, the public is disadvantaged in its ability to make substantive commentary, challenge and influence public policy, or participate in the political process in a meaningful way.
For the past four years, the United States has been involved in secretive negotiations for a large, regional trade agreement known as the Trans-Pacific Partnership Agreement (TPP). Over the course of negotiations, the membership has grown and now includes twelve negotiating parties including Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam, covering a trading area that comprises forty-percent of the world’s GDP. Eventually, the agreement is intended to cover the entire APEC region.
The intellectual property chapter has been one of the most controversial chapters in the TPP. Over the course of the four-year negotiations, no government has officially released any of the negotiating text. The only reason that the public is aware of the proposals that have been drafted results from leaked text, primarily a March 2011 leak of the United States’ proposal for the chapter and a November 2013 leak of the consolidated intellectual property chapter which reflected each country’s negotiating position. The negotiations themselves take place behind closed doors and observers are not permitted. Although stakeholders are often permitted to make presentations, there is no guarantee that the relevant negotiators will attend such presentations. Further, it can be difficult to give meaningful presentations when the texts are kept secret. As ARL and other groups have noted previously with respect to the TPP and other agreements, transparency is key to the ability to comment on the negotiating text and “will ensure the forging of an agreement that does not unfairly prejudice any stakeholders.” With respect to the Free Trade Area of the Americas Agreement (FTAA), after the consolidated negotiating text was made public and comments invited, numerous library associations wrote positively regarding the open process for reviewing and commenting on the draft text.
The standards set in the TPP will create new global norms and it is important that those who will be affected by these standards have access to information about the agreement. Substantive and meaningful engagement can take place only with full knowledge and understanding of what provisions are at stake in the agreement. Without transparency, the negotiations lack legitimacy and represent a highly undemocratic process.
Unbalanced Access to Information
It should be noted that while the general public must rely on the possibility of leaks in order to gain substantive information about the agreement, hundreds of “cleared advisors” on the International Trade Advisory Committees (ITAC) have had access to the United States’ negotiating positions and texts throughout the process. ITAC-15, the committee on intellectual property rights, currently has seventeen members, all of whom represent corporate interests.
Members of Congress have criticized the secrecy of the agreement. Senator Sanders (I-VT), for example, in a December 1, 2011 letter to USTR concluded, “I firmly believe that the public has a right to monitor and express informed views on proposals of such magnitude as the TPP. While I recognize that some opportunity has been provided for the public to make presentations to delegates, I urge you to make the negotiating text of the TPP available to the public for review and comment. Without access to the actual texts being discussed, in my view the effective input and informed participation of the public is severely curtailed.”
After the November 2013 leak of the consolidated intellectual property chapter, Representative Zoe Lofgren (D-CA) criticized the copyright provisions, noting in a December 5, 2013 press statement that the agreement “is something that is backdooring, through a trade agreement, that which could not be obtained in Congress.” Numerous organizations and individuals have decried such “policy laundering.”
The final text of the TPP will bind all members to the agreement and make any changes extremely difficult. Even where the United States’ proposals do not seek to change current law, many of the provisions could be harmful by locking in standards and preventing reform. The inclusion of a chapter on investment in the TPP, including strong investor-state provisions by the United States, means the agreement has strong enforcement mechanisms. Not only can one TPP member country sue another for violations of the provisions of the agreement, but a corporation may sue the government directly for failure to implement the text of the TPP.
Locking in lengthy copyright terms
The United States tabled the copyright term that currently exists domestically, a period of the life of the author plus an additional seventy years. For corporate works, the period of protection is ninety-five years for published works or one-hundred-and-twenty years for unpublished works. The United States and the four countries with which it has existing bilateral trade agreements have supported this proposal of life plus seventy. By contrast, other countries have proposed the international standard of life plus fifty years.
The effect of including the life plus seventy copyright term in the TPP would be to lock in a lengthy term of protection that shrinks the public domain. In advance of the December 2013 TPP ministerial meeting, 29 organizations—including library and archival associations such as ARL, The American Library Association (ALA), the Australian Library and Information Association (ALIA), and the International Federation of Library Associations (IFLA), and the American Archivists (SAA)—and 71 individuals signed a letter directed to the trade ministers that warned that “The primary harm from the life + 70 copyright term is the loss of access to countless books, newspapers, pamphlets, photographs, films, sound recordings and other works that are ‘owned’ but largely not commercialized, forgotten and lost. The extended terms are also costly to consumers and performers, while benefiting persons and corporate owners that had nothing to do with the creation of the work.”
If the final text of the agreement includes a period of protection of life plus seventy years, such a term would be very difficult to change and would require re-negotiation with all TPP members. While Maria Pallante, Register of Copyrights, has suggested that the current term should be re-thought and that formalities should be re-introduced for the last twenty years of protection, the United States will be unable to amend its law to include formalities without violating the TPP.
Preventing reform of technological protection measures (TPMs)
The United States proposal includes highly prescriptive provisions on TPMs. The proposal makes the very act of circumvention of a TPM an independent cause of action, apart from any copyright infringement that may occur. The United States proposal uses a narrow and closed list of limitations and exceptions to anti-circumvention measures. The proposal also includes a three-year rulemaking procedure for additional limitations and exceptions, modeled after Section 1201 of the DMCA. The new limitations and exceptions are valid only for a three-year period and then must be renewed. If included in the final text of the agreement, new permanent limitations and exceptions could not be added without violating the TPP.
Several proposals have been made in Congress to add new permanent exceptions to permit the unlocking of cell phones after outrage over the Librarian of Congress’ refusal to renew such an exception. The Unlocking Technology Act of 2013, introduced by Representatives Zoe Lofgren (D-CA), Thomas Massie (R-KY), Anna Eshoo (D-CA) and Jared Polis (D-CO), goes beyond the cell phone issue and would permit all circumvention of TPMs for all non-infringing uses. However, because such legislation would create new permanent exceptions, it would violate the TPP if approved as currently drafted under the United States’ proposal. Thus, new permanent exceptions to allow unlocking of cell phones, or for example, to permit persons who are visually impaired or blind to overcome TPMs designed to limit access to the text-to-speech function on e-readers, would not be permitted.
The agreement is reportedly in its final stages. Although many areas of the intellectual property chapter remain controversial with little agreement, trade ministers met in Singapore in December to try to come to a deal. It is expected that the United States will make concessions regarding market access on sugar, dairy, textiles, and automobiles in exchange for other countries’ concessions to the United States’ demands on intellectual property.
In the next few weeks, another meeting of the TPP trade ministers will take place and is expected to take place in late January or early February. As with the last ministerial meeting, stakeholders will likely not be invited to attend, present, or meet with ministers. After the last ministerial, the ministers released a short statement with little substantive information regarding any agreements or offers that had been made.
The stakes for the TPP are high, creating new global norms and locking in provisions of United States law that may be controversial and in need of repeal or reform. The general public must have access to the negotiating texts in order to understand how the TPP will affect them and to contribute meaningful and substantial commentary regarding the proposals.
This week, the Electronic Frontier Foundation (EFF) is hosting "Copyright Week" with each day devoted to a different issue. Copyright Week will last six days, ending on Saturday, January 18, the anniversary of the SOPA/PIPA blackouts. The week has many participants, including ARL.
Here is the lineup for Copyright Week:
Day 1: Transparency
Copyright policy must be set through a participatory, democratic and transparent process. It should not be decided through back room deals or secret international agreements.
Day 2: Building and Defending a Robust Public Domain
The public domain is our cultural commons and a public trust. Copyright policy should seek to promote, and not diminish, this crucial resource.
Day 3: Open Access
The results of publicly funded research should be made freely available to the public online, to be fully used by anyone, anywhere, anytime.
Day 4: You Bought It, You Own It
Copyright policy should foster the freedom to truly own your stuff: to tinker with it, repair it, reuse it, recycle it, read or watch or launch it on any device, lend it, and then give it away (or re-sell it) when you’re done.
Day 5: Fair Use Rights
For copyright to achieve its purpose of encouraging creativity and innovation, it must preserve and promote ample breathing space for unexpected and innovative uses.
Day 6: Getting Copyright Right
A free and open Internet is essential infrastructure, fostering speech, activism, new creativity and new business models for artists, authors, musicians and other creators. It must not be sacrificed in the name of copyright enforcement.
“Analog or digital, no work will have much influence if it doesn’t stick around to be cited or argued with. The technological advances that make digital-humanities work possible also put it at risk of obsolescence, as software and hardware decay or become outmoded. Somebody—or a team of somebodies, often based in academic libraries or digital-scholarship centers—has to conduct regular inspections and make sure that today’s digital scholarship doesn’t become tomorrow’s digital junk.”—
Librarians know what many copyright wonks don’t: digital materials may be capable of infinite perfect copying, but that doesn’t mean they’ll last forever.
“None of the 14 reports for Reed Elsevier and 18 reports for Pearson identified copyright infringement as a risk factor.”—Jonathan Band and Jonathan Gerafi, in their latest policy report, explaining that expert equity advisors, the people expert investors trust to give an accurate picture of the risks that companies face, almost never cite copyright infringement as a relevant risk to any of the major content companies. Infringement Risk in Copyright-Intensive Industries » infojustice
Welcome Krista Cox, ARL's New Director of Public Policy Initiatives
The Association of Research Libraries (ARL) has named Krista L. Cox director of public policy initiatives, effective January 6, 2014. Cox is currently the staff attorney/legal counsel at Knowledge Ecology International, a nonprofit organization that searches for better outcomes, including new solutions, to the management of knowledge resources.
The director of public policy initiatives advocates for the policy priorities of ARL and executes strategies to implement these priorities. The position monitors legislative trends and participates in ARL’s outreach to the Executive Branch and the US Congress.
Cox, who holds a JD from the University of Notre Dame Law School, brings to ARL a strong technical and policy background in copyright law and other information policy issues. She has published and, by invitation, has organized and led workshops on intellectual property laws, their relationship to technology, and their impacts on consumers. She has worked closely with civil society organizations and the private sector, participating in ad hoc coalitions to promote common goals, submitting joint comments, collaborating on legal strategies, and preparing amici briefs.
Cox also follows these issues at the international, multilateral level. She has attended the World Intellectual Property Organization’s (WIPO) meetings of the Standing Committee on Copyright and Related Rights (SCCR) as well as the recent WIPO diplomatic conference on the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.
In her current work for Knowledge Ecology International, Cox has gained experience monitoring legislative trends and outreach to the Executive and Legislative Branches. She has testified before numerous federal agencies and regularly submits comments in response to Federal Register notices. She works closely with a number of Congressional offices to promote the public interest and consumer rights concerning intellectual property issues.
“I have long admired ARL’s commitment to academic freedom and its role in promoting access to knowledge and supporting public access policies,” said Cox. “I am excited to join the staff of ARL and am very much looking forward to advocating for these important issues.”
“We are thrilled that Krista Cox is joining the ARL staff to lead our public policy initiatives,” said ARL executive director Elliott Shore. “Krista brings a wealth of experience, energy, and connections that will be a great asset to the Association and the ARL membership.”
Beginning in January, Cox may be reached at email@example.com.