“[T]he price of textbooks has risen more than 800% over the past 30 years, a rate faster than medical services (575%), new home prices (325%), and the consumer price index (250%).”—from The Changing Textbook Industry - a fascinating blog post by Jonathan Band for CCIA’s DisCo blog.
“The best word to describe yesterday’s oral argument at the Eleventh Circuit Court of Appeals in regard to the appeal of the Georgia State University e-reserves decision is probably bizarre. But that has to be qualified; they were bizarre in a very discouraging direction for GSU and fair use in the academy.”—A discouraging day in court for GSU | Scholarly Communications @ Duke
TOMORROW!! Georgia State University Copyright Case: Post-Argument Panel
November 19, 2:00 pm, Rialto Center for the Arts
In 2012, the North Georgia District Court ruled largely in favor of Georgia State University in the ongoing copyright lawsuit initiated by Cambridge University Press, Oxford University Press, and Sage Publishers. The decision was the first federal court decision specifically addressing fair use and electronic reserves. Plaintiff publishers appealed on many points of the ruling.
Oral arguments in the Cambridge v. Becker (GSU Copyright) lawsuit are scheduled for the morning of November 19th at the 11th Circuit Court of Appeals, room 339. Following the arguments, Georgia State University Library and American University Washington College of Law Program on Information Justice and Intellectual Property will host a post-argument panel at 2:00 p.m. in the Rialto Center for the Arts lobby.
Brandon Butler, Moderator, Practitioner-in-Residence, Glushko Samuelson IP Clinic, American University, Washington College of Law
Tony Askew, Principal, Meunier Carlin & Curfman LLC
Jonathan Band, Owner, Jonathan Band PLLC
Michael Landau, Professor, Georgia State University College of Law
Lisa Macklin, Director, Scholarly Communications Office, Robert W. Woodruff Library, Emory University
Steve Schaetzel, Principal, Meunier Carlin & Curfman LLC
Bruce Joseph, Partner, Wiley Rein LLP
The panel is free of charge, but registration is required to attend.
“The court emphatically rejects the authors’ paranoia, especially the ridiculous concern about the security of books in digitized format. The judge thought so little of the insecurity argument that the opinion ignored it (other than mentioning that Google takes security measures).”—
Google Books Decision A Huge Victory for Fair Use and for Research Libraries
In a powerful affirmation of the value of research libraries, Judge Denny Chin today ruled that Google’s digitization of millions of books from university library collections was a fair use. Chin cites the Library Copyright Alliance amicus brief throughout his opinion to support a fundamental proposition: that the Google digitization project and the resulting uses are “invaluable” to society at large, and harmless to authors. Indeed, digitization and search give “new life” to books that would otherwise have been “forgotten in the bowels of libraries.” Well, okay, libraries could probably have lived without that last part.
What lessons are there in this decision? Here are a few takeaways:
While we still await a decision in the HathiTrust case, it can’t hurt that Judge Chin, who now sits on the Court of Appeals for the Second Circuit, wholeheartedly endorses Judge Baer’s reasoning in that case, and finds expressly that all of the libraries’ uses of the Google scans are fair. After all, the Guild tried to sue Google not only for its uses of the scans, but also for sharing scans with research library partners and contributing to any infringement the libraries may have committed. Chin rejects those claims decisively, relying on HathiTrust and endorsing explicitly all of the uses HathiTrust members have made: preservation, search, and access for the print-disabled. Chin even quotes this wonderful passage from Judge Baer, which always bears repeating:
“I cannot imagine a definition of fair use that would not encompass transformative uses made by [HathiTrust] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the [Americans with Disabilities Act].”
In other words, today’s opinion is the strongest possible endorsement of library uses, as well as of Google’s uses, and it shores up Judge Baer’s opinion in that regard.
Amicus briefs really matter. Judge Chin relies on the LCA brief for core pieces of the opinion, including his finding that the Google project has significant benefits for the public (including libraries, researchers, the print-disabled, and more), and that those benefits are generally also favorable for authors, whose works are found and acquired by libraries and others by means of Google Book Search. The amicus brief filed by Digital Humanities Scholars is also crucial in helping Judge Chin explain the benefits of the book database for research.
The decision is a victory not only for transformative, non-consumptive search, but also for serving “traditionally underserved” libraries and their users, including disabled patrons.
It is time for the Authors Guild and other rightsholders to wise up and focus their energies on more productive pursuits. Years and years of litigation, millions in legal fees, and what have they got to show for it? It is beginning to look like individual authors have been sold a bill of goods by their leadership and by the lawyers that have been representing them in these cases. There is no pot of gold at the end of these lawsuits, and the research tools they’re trying to kill are their best hope of finding an audience. It is time for Authors Guild members, and for all authors who have supported this strategy, to ask themselves whether all this has been worth it. The Guild’s leadership has already said it plans to appeal, but perhaps it is not too late for members to suggest otherwise. The Second Circuit Court of Appeals is already deliberating on the HathiTrust case, and will surely issue an opinion before this case can be heard. The same panel hearing that case—Judges Leval, Cabranes, and Parker—will hear any appeal of this one. There is little reason to believe those judges will reverse Judge Baer in Hathi, and then the Guild will find itself once more arguing that what Google did was rank piracy even though its library partners were core fair users. The writing is on the wall and it’s time to back down.
Those are my main impressions and takeaways at this point, though I’m sure this is an opinion we’ll be discussing for weeks, months, and perhaps years to come.
“There is no doubt that the public interests vested in funding agencies, universities, libraries, and authors, together with the power and reach of the Internet, have created a compelling and necessary momentum for open access. It won’t be easy, and it won’t be inexpensive, but it is only a matter of time.”—Ann Wolpert, director of libraries, has died at 70 - MIT News Office
the better job Green OA does, the more it will be resisted [by publishers]. To keep Green OA programs going, they have to be imperfectly implemented.
In the real world, though, “perfect implementation” is about as likely as, well, perfect anything.
More importantly, I don’t think it’s feasible for a library to design a process that would allow it to know, on an ongoing basis, at a reasonable cost, whether Green OA has been implemented sufficiently by the authors in any particular journal that the library could afford to cancel its subscription.
Indeed, I can’t define a scenario that seems solid enough to even experiment with, let alone deploy, in a research library in the real world.
For this exercise, I’m leaving aside any broader goals of wider distribution of publicly funded research, etc., or any other philosophical commitment one might have to OA, and am just focusing on providing sufficient service to one’s own community. I’m being completely pragmatic.
The initial study to determine whether to cancel is cumbersome, expensive
First, we have the problem that a wide sampling from any given journal would be required, since author practices in self-archiving vary. This sampling would also have to be repeated regularly, and take in several sample years, since practices will vary over time.
Whoever performs this sampling would have to be trained in recognizing which version of a particular article is posted online, since presumably one wants the peer-reviewed version available to one’s faculty, researchers, and students. This would require, in many cases, comparing the manuscript with the version of record (which, please note, is only available to you if you subscribe).
After all the sampling is done and a spreadsheet created, one would have to calculate what percentage of the journal was openly available (and whether that percentage was acceptable–this would have to be a very high number, presumably), and after what time period. This would not be an easy feat, as one has to have numbers representing the total number of articles in order to make the comparison, and as far as I’m aware, this would involve manually tabulating the number of articles in each issue (again possibly through sampling).
Then this information would have to be used in conjunction with other important data such as usage level, faculty interest and feedback, cost, etc. Of course, this whole approach would only be responsible if one had buy-in from the community one is serving. That community would have to believe that this process is reasonable and that the end goal of replacing library journal subscriptions with reliance on authors’ self-archived articles is a good one.
The cumbersome, expensive survey would have to be repeated, year after year, and would get harder and harder to administer
If the decision were taken to cancel the journal, assuming here that the decision rested in significant part on the availability of OA manuscripts, then one would also have to have a cycle of returning to those titles to be sure a certain acceptable percentage was still available. This would be necessary because author practices vary and there is no reason at all to assume that because for one year, a good percentage of a journal was OA, that will be true the next year. So it’s likely a continuous sampling would be required. We are now talking about a dramatic impact on staff resources, so some other work would need to be stopped or slowed. (And by the way, this assumes the cancellation is likely to free up funds, which, in our package-driven purchasing world, is not always the case.)
But let’s assume one does cancel. Then, if one wants to continue to sample post cancellation —as would seem to be necessary —in many cases one would need the version of record to compare with, to be sure one is looking at the peer-reviewed version. Yet this version would not be available once the cancellation had taken place. So staff would be operating without solid information when carrying out future sampling, as it can be difficult to tell a preprint from a postprint without the version of record as a comparison point.
Self-Defeating Workflow: Publishers would respond, making any cancellation at best temporary, guaranteeing that follow-up surveys would be necessary
If any significant number of libraries followed this labor-intensive workflow and reassigned staff from other tasks to do it, within a year or two the affected publishers would simply change their green OA policy for authors, removing it entirely or adding an embargo. The library would have to track these publisher policy changes—another labor-intensive workflow I won’t attempt to lay out, as there is no reliable and targeted signaling process for such changes.
Resubscribing would probably be difficult
If the journal jettisons Green OA, or its authors stop self-archiving in a reliable manner, the library will want to resubscribe. That could be tricky, as the necessary funds may already have been diverted. Even if funds were available, it would be exceedingly labor intensive to resubscribe and decide about and act upon filling any gaps in access, as well as updating relevant metadata to facilitate useful services like SFX linking. Perhaps one would fill the gaps/restore the access via pay-per-view, but now we are talking about having to do another analysis to determine whether that is cost-effective.
Links would be broken in the meantime
When a library cancels a journal, the buttons in library open URL linking software no longer take users from discovery resources like Compendex, Inspec, Web of Knowledge, etc. to journal articles. Known article searches may function, but index-based searching that links to the actual documents to assist those new to a topic area would be limited to subscribed titles.
When looking at how to operate in this evolving ecosystem, I imagine we all agree it’s important to use funds and staff resources wisely, and to look beyond a quarter or a year in thinking about the impact of our decisions. Without considering any philosophical or social goals (no matter how mission-relevant, or noble), and looking just at the practical need of providing key research articles to a community, I do not see a viable workflow that is worth testing even on a trial basis.
This is probably part of the reason you do not hear about libraries canceling journals based on availability of OA manuscripts. I would also guess that if the numbers were run, there would not be any journals to cancel, as author practices in this area are not consistent, and are likely to stay that way for the foreseeable future.
(Adapted from a post to the SPARC OA Forum Listserv.)
“[Searchability] is the real leap,” Stingone says. “Because what you find once you have this massive amount of text [is] that you could pretty much put in any word you could think of and find something.”—
Stingone is talking about born-digital materials, but the power of searchability is also of at the heart of the transformativeness of digitization. Digital search is one of the most powerful tools in the hands of a 21st century researcher.
“If the Eleventh Circuit Court of Appeals applies this type of reasoning in the GSU appeal, we could see an even broader fair use ruling in Georgia State’s favor than we got from the District Court.”—Kevin Smith, writing about the recent string of losses that publishing giant Wiley has suffered in recent months. From his lips to the 11th Circuit’s ears!
New Infographic: Good News in Fair Use for Libraries
A new infographic released today tells the story of library fair use and the Code of Best Practices in a clear and compelling way. There’s an embeddable PNG for your own blogs, and there’s also a print-ready 8.5” x 11” version in case you need hardcopies to hand out at events.
The ARL Code of Best Practices in Fair Use for Academic and Research Libraries has been around for a year and a half, now, and we’ve seen how it’s changing practice around the country. The Code team has been on a whirlwind tour doing in-person events and webcasts to promote the Code all over the country. Now it’s time for library fair use enthusiasts to help spread the word, and this infographic is a powerful tool that can help pique interest in the Code itself and the overall story of how fair use has evolved to become a powerful users’ right. Share the link, embed the image on your site, print some copies for your next event, and help us keep moving libraries forward on this vital issue!
“Being a “techie” often blinds us to the plight of the majority — who, for one reason or another, don’t know they’re targets for tracking or simply can’t avoid being one. For many, the actions necessary to set up encryption or even abandon certain services are not feasible. Privacy should not become a luxury for an elite tech-savvy few; it matters far too much. Yet without structural reform those who lack cyber-privilege are often left exposed and tracked.”—Jonathan Sadowski, in his new column for Wired, Stop Thinking That Tech Hacks Are the Solution to Our Surveillance Woes. It’s a powerful message: privacy is a right for everyone, not a privilege for those savvy or wealthy enough to route around government surveillance.
On June 27, 2013, a Diplomatic Conference of the World Intellectual Property Organization (WIPO) held in Marrakesh, Morocco, adopted the “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.” The Treaty is intended to promote the making and distribution of copies of books and other published materials in formats accessible to people with print disabilities. The Treaty would achieve this objective by obligating countries signing it (referred to as Contracting Parties) to adopt exceptions in their copyright laws that permit the making of copies in accessible formats as well as the distribution of those copies both domestically and internationally.
ARL worked closely with the U.S. delegation throughout the negotiating process, and through the Library Copyright Alliance was represented in WIPO meetings in Geneva and the Diplomatic Conference itself in Marrakesh.
The copyright law in many countries presents a barrier to the making and distribution of copies of works in formats accessible to the print disabled. The making of a copy in an accessible format such as braille, without the authorization of the rights-holder, could constitute an infringement of reproduction right. The unauthorized distribution of the accessible format copies could constitute an infringement of the distribution or making available to the public right. Similarly, the export or import of accessible format copies could trigger infringement liability.
For this reason, over 50 (primarily developed) countries have adopted exceptions that allow the making and distribution of accessible format copies. However, over 130 WIPO countries, in which the majority of print disabled people live, do not have copyright exceptions relating to the print disabled. Moreover, the existing exceptions do not always explicitly permit the import or export of accessible format copies. Because of the high cost of producing accessible format copies, and the relatively low demand for many individual titles, the ability to share accessible format copies across borders would benefit the print disabled in both developed and developing countries.
The Marrakesh Treaty addresses these problems by requiring Contracting Parties to adopt copyright exceptions that allow, under certain conditions:
the making of accessible format copies;
the domestic distribution of accessible format copies;
the export of accessible format copies; and
the import of accessible format copies.
The Treaty does not dictate how these goals are to be achieved; rather, it provides Contracting Parties with great flexibility concerning the implementation of their obligations. As Article 10(3) provides,
“Contracting Parties may fulfill their rights and obligations under this treaty through limitations or exceptions specifically for the benefit of beneficiary persons, other limitations or exceptions, or a combination thereof….”
The Treaty creates minimum standards for exceptions, with a ceiling presented by existing obligations under the Berne Three-Step Test.
Many aspects of the Treaty (e.g., the focus on actions by “authorized entities”) are similar to the specific exception for the print disabled in the U.S. Copyright Act, 17 U.S.C. § 121, also known as the Chafee Amendment. This similarity is no accident; parts of the Treaty are based on proposals originally offered by the U.S. delegation.
The Treaty represents a significant development in international copyright law because it is the first treaty devoted exclusively or primarily to creating international minimum standards for copyright exceptions. At the same time, it should be remembered that the Berne Convention itself contains exceptions for quotations, illustration in teaching, and news reporting.
51 countries signed the Treaty on June 28, 2013. The Treaty does not take effect until 20 countries ratify it, and then it is binding on the countries that have ratified it. (Under international law, signing a Treaty indicates a country’s support for the Treaty, but is a lesser step than ratification.)
II. The Treaty and U.S. Law
U.S. law currently complies with the Treaty’s requirements, and the United States could ratify the Treaty without amending the Title 17. The relevant exceptions for the print disabled appear in the Chafee Amendment, 17 U.S.C. § 121; the fair use doctrine, 17 U.S.C. § 107 (especially as it has been interpreted by the ARL Code of Best Practices and the recent HathiTrust decision), and the anticircumvention provisions of the Digital Millennium Copyright Act, 17 U.S.C. § 1201. These provisions map favorably against the obligations set forth in Articles 4(1), 5(1), 6, and 7 of the Treaty.
Even though the United States could ratify the Treaty without amending Title 17, the Treaty still has the potential to provide substantial benefits to the print disabled in the United States. This is because the Treaty should result in more Contracting Parties adopting exceptions permitting authorized entities to make accessible format copies and to export them to other Contracting Parties, including the United States.
Because of the high cost of producing accessible format copies, the increased ability to share accessible format copies across borders should result in more titles being available to the print disabled in the U.S. An authorized entity in the U.K. would be able to export an accessible format copy of an English history book to a print disabled professor in New York. Likewise, an authorized entity in Spain would be able to export an accessible format copy of a Spanish novel to a print disabled student in California.
For this reason, ARL supports U.S. ratification of the Treaty.
“The policy message from the juxtaposition of these two hearings is clear. While copyright is important, it is not the only means of incentivizing the creation and distribution of works.”—Copyright policy guru Jonathan Band in his wrap-up of the two copyright hearings recently held in the House Judiciary Committee IP Subcommittee - A Tale of Two Hearings
I don’t know the behind-the-scenes details (although my wife, Holly Robertson, was involved in the early days of this project when she worked at UVA), but I think there’s enough information in this press release to say that UVA’s efforts here are emblematic of the new era in special collections digitization and access.
Here are some things that strike me about this project:
They are digitizing everything, period. This is the new normal: collection-level decisions are the only ones that make sense in terms of efficiency, these days.
Everything will be available online to the public, and searchable. Hiding collections and limiting access is always an option, but the broadest possible public access is always the goal. The search function is also important, as libraries realize that access alone is not worth much without robust tools to parse the collection.
The WSLS collection is A/V material, which we found in our conversations with librarians two years ago is perceived as more “risky” than text, even though the copyright law doesn’t distinguish between different media. Libraries are getting over that fear, as reflected in the Librarians’ Code, which makes no distinctions among media.
Ownership issues are likely at least to be a bit cloudy. The television station is defunct, the people depicted on-camera and the production crew behind it are long gone or difficult to find, etc. To wait for an unimpeachable grant of permission could likely have derailed this project completely, but UVA was undeterred. This is the growing consensus in the library and archive world: orphans are everywhere and there will almost never be any such thing as a “perfectly cleared” special collection. Know your rights, manage your risk, be open and accommodating to any concerns or complaints, and go forward.
Congratulations to UVA on this exciting achievement!
The latest from Brookings looks spot on. There is a systematic failure in Congress to think clearly or critically about surveillance and civil liberties issues post-9/11. The default posture is deference to the agencies who want more and more power, and devaluing the public interest.
ARL Supports Amash-Conyers Amendment to End Bulk Collection Under Section 215
An amendment to the Defense Appropriations bill proposed by Representatives Justin Amash (R-MI) and John Conyers (D-MI) would return Section 215 to a reasonable scope, allowing the collection of important information about suspected terrorists but barring large-scale collection of information about innocent Americans. The Association of Research Libraries strongly supports this amendment, which would curtail the National Security Agency’s (NSA) program to collect the phone records of millions of Americans.
Section 215 is often referred to as the ‘library records provision,’ because libraries have been sounding the alarm about its massive scope for years. The breadth of the statute made overreach nearly inevitable; revelations about the NSA’s bulk collection of information about innocent Americans makes reform imperative.
The Amash-Conyers Amendment is a rare opportunity to send a strong, bipartisan message to the NSA that its surveillance activities have gone too far. ARL applauds Representatives Amash and Conyers and urges other Representatives to join them in voting to restore balance to the NSA’s surveillance practices.
“Currently, the Act permits law enforcement to compel, with a minimal showing to a judge, any person or entity to turn over any ‘tangible thing’ related to almost any person, including innocent Americans.”—One of the very first things I (Brandon, here, filling in until they hire my replacement) ever wrote for ARL - the Library Association Statement on Section 215 of the USA PATRIOT Act and National Security Letters (scroll down past the statement on that particular PATRIOT Act re-auth). Hate to say I told you so.
“Work that fails to enter a canon—literary, historical, or otherwise—tends to languish on the dustier shelves of college libraries. Digitization allows a new generation of scholars to look at them with fresh regard. This represents a significant change in the way we think about scholarship. Google Books is a kind of Victorian portal that takes me into a mare magnum of out-of-print authors, many of whom helped launch disciplines. Or who wrote essays, novels, and histories that did not transcend their time. Or who anonymously produced the paperwork of emerging bureaucracies, organizations, and businesses that, because printed, has been scanned and, because scanned, is now available.”—Professor Paula Findlen, a historian at Stanford, basically saying everything I’ve ever hoped would be true about digitization and research in her column,"How Google Rediscovered the 19th Century" in The Chronicle of Higher Education.
“Most information isn’t doing any good sitting in books on shelves in archives, things that haven’t been looked at for several years. We want as much online to do as much research as we can.”—Jeremy Pesner, a graduate student at Georgetown University, quoted in The Great American Wicking : The Protojournalist : NPR. (via @MerrileeIam)
“As long as you purchased them, they won’t go away. If you bought it, you own it.”—
Image Comics Director of Business Development Ron Richards explaining why "For the First Time, You Can Actually Own the Digital Comics You Buy." I bought the latest issue of the Walking Dead (you know, for research…) and was never confronted by any Terms and Conditions limiting my rights to use the files as I would any other computer file that I own.
Now, under the ReDigi decision, you still couldn’t take advantage of many first sale rights because the comics are digital files and can’t be loaned or sold without copying. (Section 109, where first sale lives, only provides owners with an exemption from the distribution and display rights, not the right of reproduction.) Still, DRM-free files you can download and keep is one step closer to real ownership, and a step away from merely licensed access that can be revoked at any time.
IMHO, a library could buy these digital comics and put them on an e-reader device (an iPad, e.g.) and lend the iPad with the file installed. A little wonky, but it looks more like real circulation.
New briefing sched for #GBS #fairuse: responses to MSJs due 8/26, replies 9/9, oral args 9/23 2:30pm.
ORDER: The briefing schedule for the parties’ cross-motions for summary judgment is hereby modified as follows: (1) By August 26, 2013, the parties shall file their oppositions to the cross-motions for summary judgment. The parties shall include any arguments in response to the amici curiae briefs in their memoranda in opposition to the cross-motions. The parties’ memoranda of law shall not exceed 50 pages, including any response to the amici curiae briefs. (2) By September 9, 2013, in memoranda of law not to exceed 20 pages, the parties shall file their replies in support of the cross-motions for summary judgment. (3) Oral argument on the cross-motions for summary judgment will be heard on September 23, 2013 at 2:30 PM. SO ORDERED. (Responses due by 8/26/2013, Replies due by 9/9/2013.), ( Oral Argument set for 9/23/2013 at 02:30 PM before Judge Denny Chin.) (Signed by Judge Denny Chin Sitting by Designation on 7/8/2013) (rsh)
Scheduling Order for #GBS: Briefs due 8/5, replies 8/19, oral args 9/5
Full text of the order:
ORDER: By August 5, 2013, the parties shall file their oppositions to the cross-motions for summary judgment. The parties shall include any arguments in response to the amici curiae briefs in their memoranda in opposition to the cross-motions. The parties’ memoranda of law shall not exceed 50 pages, including any response to the amici curiae briefs. By August 19, 2013, in memoranda of law not to exceed 10 pages, the parties shall file their replies in support of the cross-motions for summary judgment. Oral argument on the cross-motions for summary judgment will be heard on September 5, 2013 at 10:00 AM.
This morning a panel of judges from the Federal Court of Appeals for the Second Circuit issued a short but significant opinion in the hotly-contested Google Books litigation. In less than 5 pages, the court reverses district court judge Denny Chin’s decision to certify the Authors Guild’s class action lawsuit against Google. The appeals court ordered Judge Chin to first consider Google’s fair use defense, as the success of that defense would render the question of whether the suit should go forward as a class action moot. The court also said that sorting out the issues involved in a fair use determination would also help sort out whether a class action proceeding is appropriate. The appellate court also expressed sympathy for Google’s argument that the Guild is not representative of most authors, citing Google’s evidence that many, perhaps most, authors benefit from Google Book Search and would not want the Guild to prevail in its suit. The court did not decide that issue, though, and it may resurface later.
Professor James Grimmelmann, an avid commentator on the lawsuit, has suggested that the decision implies the court thinks the fair use outcome will likely favor Google. I’m not sure I would go that far. It may just be that the court thinks proceeding as a class action raises the stakes so substantially that it makes sense to explore any alternative that could potentially end the suit before that dramatic escalation takes place.
Regardless of whether this decision telegraphs good vibes about the fair use outcome, it’s a great precedent for future fair uses. It means that fair use cases will be tried more quickly and the stakes of the litigation will not be raised to the extraordinary level of a class action without first reaching the question of fair use. This is, I think, another nail in the coffin of the myth that fair use is just the right to hire a lawyer. Together with the attorneys’ fees awards in GSU and other fair use cases, the early decisions in cases like the South Park “What What” parody, and even the Prince “Let’s Go Crazy” case that says rightsholders have to consider fair use before issuing DMCA takedowns, this decision is creating a series of procedural protections that make fair use a real user’s right.
“In particular, we appreciate the efforts of the U.S. delegation. The delegation has had the difficult task of balancing the conflicting demands of many interests…. While I certainly have not agreed with all the positions the U.S. adopted, I understand the conflicting pressures under which it has operated.”—Jonathan Band, from his statement at WIPO on behalf of the Library Copyright Alliance, on the occasion of the passage of the treaty for the visually impaired.
What a difference a week makes! After a lengthy negotiation process that had many advocates wondering whether the result would be worth the effort, last night the WIPO negotiators in Marrakech passed a meaningful treaty for the visually impaired.
The Library Copyright Alliance has been involved in the treaty negotiation process from the beginning, and has issued a press release welcoming the treaty’s passage. In it, Carrie Russell points out a key fact about the treaty that may explain (but not excuse) the MPAA’s last-minute efforts to neuter the agreement:
By passing what is an exception to copyright, the World Intellectual Property Organization demonstrated that there is international support for balance in copyright law. We applaud the world delegates for approving a treaty that makes it possible for every visually-impaired person around the world to have fair access to reading materials.
And it looks like WIPO got some key details right. Perhaps most heartening, it did not remove references to fair use and fair dealing, despite the State Department’s misguided expressions of concern.
After years of legislation that has made copyright longer and stronger, WIPO has finally done something to help the public. It’s worth celebrating.
“We may discover that buying something no longer means owning it in any meaningful sense—and our stuff isn’t really ours anymore.”—Historian (and #GSU prof!) Alex Cummings on "The end of ownership." If only Oxford U Press would listen to its authors when they talk about wise copyright policy.
Great Fair Use Advice from Reed Elsevier (Seriously!)
Sometimes litigation creates strange bedfellows. We have watched with great interest the case of White v. West, a lawsuit challenging legal research databases Lexis and Westlaw for their practice of ingesting legal briefs and motions filed in federal court cases, indexing them for search, and reselling access to the briefs in their own databases. An abbreviated order entered in February says the databases have won the case, most likely based on a fair use rationale, but a full opinion explaining the reasoning of the court is still forthcoming.
This situation is deeply ironic. Reed Elsevier and West Publishing, the parent companies of Lexis and West, are historically aligned with the rest of the content industry in opposition to any legal theory that loosens the grip of copyright holder control. Reed Elsevier in particular is quite aggressive. They funded an anti-fair use amicus brief in the Georgia State case, are a member of the AAP, which funded another anti-fair use amicus brief in the HathiTrust case, pushed hard for database legislation, and were behind the awful “Research Works Act” which would have outlawed federal public access policies.
But now these ardent maximalists find themselves in substantially the same position as the libraries they have lately antagonized, and they must rely on the strongest possible fair use arguments to get themselves out of copyright trouble. Remarkably, the briefs make an eloquent case for fair use, and libraries can learn a lot from them.
First Factor: Purpose and Character of the Use
"After selecting the Briefs for inclusion in the BPM database, Lexis enhanced them by making them text and topic searchable, adding links to and from related opinions, expert testimony, and other related materials, and adding hyperlinks to cited cases and statutes."
So, careful processing and contextualizing helps strengthen a transformativeness argument. Libraries who add helpful metadata, link documents with one another and with larger collections, and so on, are engaged in transformative activity that creates a new, improved research object, different from the raw item that was initially acquired.
"Following selection and enhancement, the Briefs were added to a sophisticated research tool consisting of interconnected legal documents for students and professionals to research legal arguments, case law, statutes, pleading formats and so on."
Once individual works are tagged and so on, they can be further transformed by placing them into a larger tool that enables search and analysis across a large corpus.
"Plaintiff’s use of the Briefs was entirely different. They were created to advocate a client’s position in a court."
While in the broadest sense, legal briefs are written (like every written work) to be read, the Elsevier legal team realizes that you need to look at a more specific purpose to determine whether a new use is transformative. Namely, you need to look at the main purpose that motivated the author to write and publish the work. Similar arguments could be made about many items in library archives and special collections, and even in general research collections. These works were created as business records, or personal documents, or to communicate privately, or to advocate a scholarly position to one’s peers, etc. Making them the object of research or teaching may well be transformative.
"The stark contrast in the purposes of these two uses alone confirms that Lexis’s use is transformative."
Indeed, the case law is quite clear: a use is transformative (and thus favored under the first fair use factor) if it is made for a new purpose distinct from the purpose of the original work. Reed Elsevier should have put its attorneys in this case in touch with the ones representing the AAP in its anti-fair use amicus brief in the HathiTrust case, as the latter team sternly dismissed the idea that a new purpose is sufficient to render a use transformative. Indeed, the Reed Elsevier team cites with approval exactly the same language from Judge Baer’s decision in HathiTrust that the AAP team is trying to discredit.
Digital access provided to students for free is not the same as printed course packs sold for profit
Reed Elsevier argues persuasively that the Basic Books v. Kinko’s case, which found copy shops liable for providing students with course packs for profit, does not apply when the use is transformative and access is provided free of charge:
That case involved a private copy center charging college students for copies of course packets. Lexis, however, does not charge law students for access, and its use, unlike the defendant in Basic Books, did not have “the intended purpose of supplanting the copyright holder’s commercially valuable right.”
Second Factor: Nature of the work used
"Lexis therefore did not usurp any right of first “publication” because Plaintiff never had any intention to publish the Briefs beyond filing them in court."
Libraries sometimes worry that for unpublished works they may face the claim that their use cannot be fair because it violates the old common law “right of first publication.” Reed Elsevier argues that for works that obviously were never destined for publication, there is no such right. Music to any archivist’s ears, I’m sure!
"[L]egal professionals who review already filed legal documents are not searching for clever turns of phrase—they are looking to see what arguments have been made, what authorities have been cited, and what facts have been relied upon by lawyers in cases similar to their own."
Kinda sounds like what scholars are interested in when they look at articles and books, right? Just as Judge Evans did with the scholarly monographs in the Georgia State case, Reed Elsevier argues here that the briefs are not primarily about expression; they are about facts and analysis. This turns the second factor in favor of fair use.
Third Factor: Amount Used
"It is indisputable that it was necessary for Lexis to copy the entirety of the Briefs to create a fully searchable database and provide the user access to complete and accurate legal formats and arguments as part of its transformative use."
Indeed, you can use the whole thing if that’s the right amount for your transformative purpose. If your purpose is to make a fully searchable database (ahem, HathiTrust), then, by golly, the whole thing is what you need! Reed Elsevier said so. (And so did the US Supreme Court, of course, in the landmark case Campbell v. Acuff Rose.)
Fourth Factor: Market Harm
"Plaintiff makes the circular argument that, because Lexis uses the Briefs for its sophisticated legal research database, ipso facto, Lexis has harmed Plaintiff’s ability to license its Briefs for that use."
That’s right: just because, say, the AAP or the Copyright Clearance Center or the Authors Guild comes knocking with its hand out doesn’t automatically mean there is a genuine “market” that has been harmed by the use. That would be circular!
"To avoid this ‘danger of circularity,’ courts have held that market harm for purposes of a fair use analysis does not take into account any market created by the transformative use."
So when someone like, say, the CCC or Reed Elsevier, does have their hand out, you can tell them they don’t get your money if what you’re doing is transformative.
"Plaintiff acknowledges that the Briefs were not created with the intention of selling or licensing them, and it has never attempted to sell or license the Briefs."
Yep: there can’t be market harm if you’ve never intended to exploit a market. Again, good news for archives and special collections; all those business records and family photos and constituent letters are subject to a very friendly analysis under the fourth factor.
"First Amendment considerations are also part of the fair use doctrine."
Fair use is not the last refuge of a scoundrel; it is a “built-in First Amendment accommodation” recognized by the Supreme Court. Where First Amendment interests are at stake (academic freedom, perhaps), the scale should tip further in favor of fair use.
It is really quite refreshing to read all the arguments that we in the library community have been making for years in the pages of a brief filed by the loyal opposition. I would like to hope that the publishers learned something from spending a little time on the Defendant’s side of the “v.,” but since their terrible GSU and Hathi briefs were filed after these wonderful briefs (and by different attorneys), I’m not optimistic.
Over 100 Civil Liberties Organizations and Internet Companies Demand a FullScale Congressional Investigation Into NSA Surveillance
Today, dozens of civil liberties organizations and Internet companies — including the Electronic Privacy Information Center, National Association of Criminal Defense Lawyers, ThoughtWorks, and Americans for Limited Government — have joined the coalition demanding that Congress initiate a full-scale investigation into the NSA’s surveillance programs.
This morning, we sent an updated letter to Congress with 115 organizations and companies demanding public transparency and an end to dragnet surveillance.
The letter comes even as dozens of groups are organizing a nationwide call-in campaign to demand transparency and an end to the NSA’s unconstitutional surveillance program via https://call.stopwatching.us.
It’s been less than two weeks since the first NSA revelations were published in the Guardian, and it’s clear the American people want Congress to act. The first step is organizing an independent investigation, similar to the Church Committee from the 1970s, into all of the NSA’s surveillance capabilities. Our letter tells Congress:
This type of blanket data collection by the government strikes at bedrock American values of freedom and privacy. This dragnet surveillance violates the First and Fourth Amendments of the U.S. Constitution…
In addition, the StopWatching.us global petition has gathered more than 215,000 signatures since it was launched one week ago. The petition calls on Congress and the President to provide a public accounting of the United States’ domestic spying capabilities and to bring an end to illegal surveillance.
Research libraries have a deep and longstanding commitment to privacy and freedom of inquiry, and we were among the first to raise the alarm about Section 215. Indeed, shortly after passage of the PATRIOT Act, Section 215 became known as the “library records provision” because it so clearly permitted violation of the expectation of privacy that Americans have when it comes to things like what books they read.
You can read the full coalition letter, with an up-to-date list of the signees, at Stopwatching.us.
“To use new technology to look at literature as a whole, which has never really been done before, rather than focusing on complex and singular works, is a good direction for cultural criticism to move in. Paradoxically, it may even liberate the canonical works to be read more in the spirit in which they were written.”—Jonathan Franzen on Digital Humanities in Big data meets the Bard - FT.com. h/t @brettbobley.
“Nowadays in the digital world you can hardly own anything anymore. If you put things in the cloud, someone, somewhere might disappear it and it’s gone forever. When we grew up, ownership was what made America different than Russia.”—Steve Wozniak, lamenting the loss of first sale rights, as well as privacy, in Woz: This is not my America | Technically Incorrect - CNET News.
ARL Joins 86 Orgs and Internet Cos Demanding Committee Investigation and End to Dragnet Spying
Today, ARL joined with a broad, bipartisan coalition of 86 organizations and Internet companies – including the Electronic Frontier Foundation, reddit, Mozilla, and the American Civil Liberties Union – to send a letter to Congress demanding swift investigation and reform in light of the recent revelations about unchecked global surveillance.
The letter was accompanied by the launch of StopWatching.Us, a global petition demanding an inquiry into the scope and scale of spying activities.
Responding to recent leaked documents providing detailed evidence of the National Security Agency (NSA)’s collection of telephone records and online activity of innocent Americans and global Internet users, the groups called for a congressional investigatory committee similar to the Church Committee of the 1970s. The letter demands legal reforms to rein in spying and that public officials responsible for this unconstitutional surveillance be held accountable for their actions.
The letter denounced NSA’s spying program as illegal, noting:
“This type of blanket data collection by the government strikes at bedrock American values of freedom and privacy. This dragnet surveillance violates the First and Fourth Amendments of the U.S. Constitution, which protect citizens’ right to speak and associate anonymously and guard against unreasonable searches and seizures that protect their right to privacy.”
The groups called for a numbers of specific reforms in their open letter to Congress, including:
Reform to the controversial Section 215 of the USA PATRIOT Act, the “business records” section which, through secret court orders, was misused to force Verizon to provide the NSA with detailed phone records of millions of customers.
Reform to the FISA Amendment Act, the unconstitutional law that allows the government to conduct mass surveillance on American and international communications nearly without restriction.
Amendment to the state secrets privilege, the legal tool that has expanded over the last 10 years to prevent the government from being held accountable for domestic surveillance.
The formation of a Congressional investigatory committee to investigate, report, and reveal to the public the extent of domestic spying, and the creation of specific recommendations for legal and regulatory reform to end unconstitutional surveillance.
Accountability for those public officials found to be responsible.
The global petition site, StopWatching.Us, offers American citizens and residents the ability to directly contact their elected representatives to demand oversight and reform, echoing the concerns of the coalition letter. The petition will allow non-US persons to communicate their concerns directly to the White House.
We write to express our concern about recent reports published in the Guardian and the Washington Post, and acknowledged by the Obama Administration, which reveal secret spying by the National Security Agency (NSA) on phone records and Internet activity of people in the United States.
The Washington Post and the Guardian recently published reports based on information provided by a career intelligence officer showing how the NSA and the FBI are gaining broad access to data collected by nine of the leading U.S. Internet companies and sharing this information with foreign governments. As reported, the U.S. government is extracting audio, video, photographs, e-mails, documents, and connection logs that enable analysts to track a person’s movements and contacts over time. As a result, the contents of communications of people both abroad and in the U.S. can be swept in without any suspicion of crime or association with a terrorist organization.
Leaked reports also published by the Guardian and confirmed by the Administration reveal that the NSA is also abusing a controversial section of the PATRIOT Act to collect the call records of millions of Verizon customers. The data collected by the NSA includes every call made, the time of the call, the duration of the call, and other “identifying information” for millions of Verizon customers, including entirely domestic calls, regardless of whether those customers have ever been suspected of a crime. The Wall Street Journal has reported that other major carriers, including AT&T and Sprint, are subject to similar secret orders.
This type of blanket data collection by the government strikes at bedrock American values of freedom and privacy. This dragnet surveillance violates the First and Fourth Amendments of the U.S. Constitution, which protect citizens’ right to speak and associate anonymously and guard against unreasonable searches and seizures that protect their right to privacy.
We are calling on Congress to take immediate action to halt this surveillance and provide a full public accounting of the NSA’s and the FBI’s data collection programs. We call on Congress to immediately and publicly:
Enact reform this Congress to Section 215 of the USA PATRIOT Act, the state secrets privilege, and the FISA Amendments Act to make clear that blanket surveillance of the Internet activity and phone records of any person residing in the U.S. is prohibited by law and that violations can be reviewed in adversarial proceedings before a public court;
Create a special committee to investigate, report, and reveal to the public the extent of this domestic spying. This committee should create specific recommendations for legal and regulatory reform to end unconstitutional surveillance;
Hold accountable those public officials who are found to be responsible for this unconstitutional surveillance.
Thank you for your attention to this matter.
Advocacy for Principled Action in Government
American Booksellers Foundation for Free Expression
American Civil Liberties Union
American Civil Liberties Union of California
American Library Association
Association of Research Libraries
Bill of Rights Defense Committee
Center for Democracy and Technology
Center for Digital Democracy
Center for Financial Privacy and Human Rights
Center for Media and Democracy
Center for Media Justice
Competitive Enterprise Institute
Cyber Privacy Project
Defending Dissent Foundation
Detroit Digital Justice Coalition
Electronic Frontier Foundation
Entertainment Consumers Association
Fight for the Future
Foundation for Innovation and Internet Freedom
Free Software Foundation
Freedom of the Press Foundation
Friends of Privacy USA
Get FISA Right
Government Accountability Project
Institute of Popular Education of Southern California (IDEPSCA)
Knowledge Ecology International (KEI)
Law Life Culture
May First/People Link
Media Mobilizing Project, Philadelphia
National Coalition Against Censorship
New Sanctuary Coalition of NYC
Open Technology Institute
Participatory Politics Foundation
Patient Privacy Rights
People for the American Way
Personal Democracy Media
Privacy and Access Council of Canada
Public Interest Advocacy Centre (Ottawa, Canada)
Privacy Rights Clearinghouse
Rights Working Group
Rocky Mountain Civil Liberties Association
Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic