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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 krista@arl.org.

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).

Why Google’s Fair Use Victory In Google Books Suit Is A Big Deal—And Why It Isn’t – Forbes

If the 2nd Circuit Court of Appeals takes the same approach, the HathiTrust case is another loser for the Guild, as it put nearly all of its emphasis on the security argument at oral arguments.

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.

Brandon Butler is the Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Clinic at American University, Washington College of Law.

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.

Twelve (count ’em!) briefs filed in support of HathiTrust – who filed?

The Library Copyright Alliance brief is one of twelve amicus briefs filed this week in support of the HathiTrust and its partner libraries. Other filers are:

  • the American Association of Universities, American Council on Education, Association of Public and Land-Grant Universities, and several other higher ed associations

  • The University of Illinois, Michigan State University, University of Minnesota, University of Nebraska, Northwestern University, Pennsylvania State University, and Purdue University

  • Large numbers of disability rights organizations and advocates, including the Association on Higher Education and Disability (AHEAD), American Council of the Blind, National Association of the Deaf, and the Disability Rights Legal Center, as well Marilyn Chafee, an advocate for dyslexic persons and daughter-in-law of Sen. John Chafee (author of the Chafee Amendment) – these groups filed two briefs across two sub-groups

  • Benetech (Bookshare) and Learning Ally (the leading providers of accessible audio and e-books) (brief prepared pro bono by Brandon Butler)

  • 133 Academic Authors

  • Over 100 digital humanities scholars

  • 22 Law Professor Experts in Disability Law

  • Six leading medical historians

  • Stanford University

  • The Emory Vaccine Center

  • The Center for Democracy and Technology, Electronic Frontier Foundation, and Public Knowledge

Library Copyright Alliance files amicus in HathiTrust case

Last night the Library Copyright Alliance filed its amicus brief (PDF) in support of HathiTrust and its partners as they defend their district court victory on appeal in the Second Circuit.

In a powerful brief, LCA counsel Jonathan Band explains that the HathiTrust Digital Library’s digitization of over 10 million books for preservation, non-consumptive research, and accessibility is lawful; indeed, it is a research tool of world-historical significance that the court should welcome. The brief makes three core arguments:

  • the Hathitrust project is a fair use consistent with library best practices

  • the specific exceptions favoring libraries do not preempt fair use, and

  • libraries are “authorized entities” who can make accessible books available to the print disabled under the Chafee Amendment.

In the process, it responds to the Authors Guild’s extraordinarily crabbed reading of the Copyright Act, which would make basic library activities illegal and treat print disabled patrons as second class citizens.

In GSU Amicus, LCA Invokes Best Practices, Dispels Market Myths

The Library Copyright Alliance (LCA) filed a friend of the court brief today in support of Georgia State University in the appeal of Cambridge U. Press et al. v. Mark P. Becker et al. In its brief, LCA argues that GSU’s e-reserves policy is consistent with widespread and well-established best practices for fair use at academic and research libraries, and that these uses have no negative effects on scholarship. LCA is represented by Jonathan Band and attorneys from the Electronic Frontier Foundation. The case is on appeal with the U.S. Court of Appeals for the 11th Circuit.

The case began in 2008 when Cambridge University Press, Oxford University Press, and SAGE Publishers sued GSU for alleged copyright infringement. The publishers argued that GSU’s use of excerpts from copyright-protected materials in password-protected course e-reserves and class sites was a violation of the copyright law. Notably, the Association of American Publishers and the Copyright Clearance Center, the licensing arm for much of the academic publishing industry, organized and funded the lawsuit.

In May 2012, Judge Orinda Evans of the U.S. District Court in Atlanta ruled in favor of the university in a lengthy decision that reviewed each of 75 alleged infringements, finding only 5 infringing uses. In her ruling, the Judge saw little evidence of market harm to the publishers, and clearly understood that current teaching practices were beneficial to teachers and students, as well as being reasonable and fair. Because of GSU’s overwhelming victory, and the publishers’ aggressive litigation strategy, Judge Evans ordered the publishers to pay GSU’s attorneys’ fees and costs (nearly $3 million), an important ruling that could help discourage future aggressive lawsuits against good faith fair users.

Now that the issues are narrowed and clarified on appeal, LCA is one of several groups filing on the side of GSU in a striking show of solidarity across the academic community. The American Council on Education, the Association of American Universities, the Association of Southeastern Research Libraries, and the American Association of University Professors, among others, are all represented in briefs defending the fair use rights of faculty, students, and librarians.