Fair Use in 2015 and A Look Ahead at 2016

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation. Today’s topic is “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.”

Fair use is a critical right and the most important limitation on the rights of the copyright holder. It permits the use of copyrighted material without permission from the rightholder under certain circumstances and has been called the “safety valve” of U.S. copyright law. Fair use is a broad and flexible doctrine that is responsive to change and can accommodate new technologies and developments.  Notably, fair use is relied upon by everyone, including both users of copyrighted content as well as rights holders. This critical doctrine provides essential balance

Below are five news highlights on fair use from 2015 as well as my five favorite fair use resources created in 2015 (created for Fair Use/Fair Dealing Week 2015).

Five Fair Use Highlights from 2015:

  1. Second Circuit Affirms Fair Use in Google Books Case.  In October 2015, the Second Circuit released its unanimous opinion, authored by Judge Leval, affirming the lower court’s fair use decision in Authors Guild v. Google, also known as the “Google Books” case.  The Second Circuit held that Google’s copying of books and display of snippets in a search index is transformative and a fair use.  This search and snippet function of Google Books allows for important research, including through text-and-data mining to allow researchers to conduct research that would not be possible without the large searchable database created by Google. Additionally, the Second Circuit found that Google’s provision of digital copies to its partner libraries that submitted the particular work is not an infringement.  This digitization of certain works from library collections demonstrates an important partnership, which has allowed libraries to make fair uses of these copies, including to provide access for those who are visually impaired.
  2. Ninth Circuit Rules Fair Use Must Be Considered Before DMCA Takedown Notices Sent.  In September 2015, the Ninth Circuit ruled in Lenz v. Universal Music, also known as the “Dancing Baby” case that “copyright holders must consider fair use before sending a takedown notification, and that failure to do so raises triable issues as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.”  In its reasoning, the Ninth Circuit confirmed that fair use is a right: “Fair use is not just excused by the law, it is wholly authorized by the law . . . The statute explains that the fair use of a copyrighted work is permissible because it is a non-infringing use.”
  3. YouTube Announces It Will Defend Some Creators’ Fair Use Claims.  In November 2015, YouTube announced that it will protect “some of the best examples of fair use on YouTube” by defending some creators in copyright litigation.  YouTube pledged to indemnify some of its creators whose fair use videos are subject to takedown notices for up to $1 million in legal costs if the takedown results in a copyright infringement lawsuit. This announcement is significant given that fair use provides essential balance to the copyright system, allowing for transformative uses including parody, commentary, criticism and innovation and videos posted to YouTube often rely on this important doctrine.
  4. Final Text of the Trans-Pacific Partnership (TPP) Agreement Includes Language on Limitations and Exceptions.  In October 2015, the twelve negotiating parties (Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam) announced agreement on the TPP, concluding five years of negotiations.  Although the final copyright provisions of the TPP had mixed results and ARL was disappointed by a number of the provisions and the lack of transparency during the negotiations, one of the positive aspects of the agreement was the inclusion and improvements in the final text on limitations and exceptions. The final text included language based off part of the United States’ fair use provision, with an addition for those with print disabilities, requiring “due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled.”  The text confirms that the exceptions can apply “in the digital environment” as well as to uses with “commercial aspects.”  Inclusion of this language is significant.  While the final language could have been strengthened further, the final text still provides an obligation for parties to seek a balance and can be used as a basis for stronger language in future agreements.  As noted by Jonathan Band in a paper exploring the evolution of the limitations and exceptions over the course of the TPP negotiations, “The incorporation of the non-exclusive list of legitimate purposes from 17 U.S.C. § 107 provides TPP countries a powerful basis for concluding that this balance is best achieved through the adoption of an open-ended flexible exception like fair use.”
  5. Authors Guild and HathiTrust settle last remaining issue (preservation); Second Circuit decision strongly affirming fair use stands.  While the Second Circuit’s decision in the HathiTrust case was released in June 2014, the court did not resolve the issue of preservation, sending that issue back to the district court.  In January 2015, the parties entered a settlement on the sole issue remaining issue, ending the litigation in a victory for HathiTrust and fair use.  The Second Circuit’s decision found that creation of a full-text search database and providing access to the print disabled constituted fair use.  In January 2015, however, the defendant libraries stipulated that they complied with Section 108(c) of the Copyright Act and agreed that for a period of five years, if they do not comply with the stipulation, it will notify the Authors Guild, “which, although not a Remaining Plaintiff in this Action, will accept notice.”  Authors Guild released a statement after the settlement, noting that it would not seek an appeal to the Supreme Court.

Five Great Fair Use Resources from 2015:

  1. Fair Use Fundamentals Infographic.  In celebration of Fair Use Week 2015, ARL created this infographic explaining that fair use is a right, is vitally important, is for everybody and is everywhere.
  2. A Day in the Life of a Legislative Assistant.  Jonathan Band authored this document, giving a sample day in the life of a legislative assistant.  This sample day shows just how often fair use is relied upon on a daily basis.
  3. Video: Fair Use and Technology.  Fred von Lohmann explains how fair use is essential to every day technology and how we encounter it on a daily basis.
  4. Podcast: Fair Use Protects Culture From Copyright, Not the Other Way Around.  TechDirt created a great podcast devoted to the important doctrine of fair use and how it provides an essential balance to the copyright system.
  5. 12 Fair Use Myths and Facts.  For Fair Use Week 2015, ARL also produced a “Myths and Facts” document on fair use, covering twelve myths about what fair use is and how it can be used.

So what’s next for fair use in 2016?

First, a reminder that Fair Use/Fair Dealing Week 2016 is quickly approaching and will take place from February 22-26, 2016.  A number of organizations and institutions are already planning to participate and have great events planned.  ARL will be creating a new infographic, hosting blog posts, and posting new videos on fair use.  For more information on how to participate or to see the great resources from last year’s celebration, visit the Fair Use Week website.

Additionally, the Authors Guild’s Google Books case may not be over as the Authors Guild filed a petition for writ of certiorari to the Supreme Court on December 31, 2015.  However, the Authors Guild’s petition does not appear to be a particular strong one.  Despite the Authors Guild’s claims that there is a circuit split on the meaning of transformativeness, it is not clear that the six circuits cited have actually split on the issue as the facts of the cases differ significantly.  Furthermore, the argument that the Second Circuit has shifted to a one-factor test is clearly unsupported by the court’s October decision; the Second Circuit carefully analyzes all four factors.

In fact, Professor Jane Ginsburg noted in her article, Google Books and Fair Use: From Implausible to Inevitable? that the Google Books decision is probably not worthy of Supreme Court review.  She stated that the decision “probably surprised no one” and that “courts came to interpret Campbell’s reference to ‘something new, with a further purpose’ to encompass copying that does not add ‘new expression,’ so long as the copying gives the prior work ‘new meaning.’  Fair use cases began to drift from ‘transformative work’ to ‘transformative purpose,’ in the latter instance, copying of an entire work, without creating a new work, could be excused, particularly if the court perceived a sufficient public benefit in the appropriation.” Ginsburg acknowledges that courts have interpreted transformativeness to include a transformative purpose and does not cite any circuit split on this issue.  She also pointed out that the Second Circuit’s opinion was restrained and did not expand the fair use doctrine.  If the Supreme Court declines to hear the Google Books case, the Second Circuit’s decision will stand.

Additionally, as noted yesterday, the Copyright Office has issued a notice of a study the 1201 rulemaking process which creates exemptions on a three-year cycle to allow for circumvention of technological protection measures.  The exemptions requested during each cycle represent non-infringing uses, such as those that would operate under fair use in the analog world (that is, without the digital locks placed on digital copies).  The notice of inquiry includes a number of questions that are highly relevant to fair use.  For example:

1. Please provide any insights or observations regarding the role and effectiveness of the prohibition on circumvention of technological measures in section 1201(a).

[. . .]

3. Should section 1201 be adjusted to provide for presumptive renewal of previously granted exemptions—for example, when there is no meaningful opposition to renewal—or otherwise be modified to streamline the process of continuing an existing exemption? If so, how?

[. . .]

8. Please assess whether the existing categories of permanent exemptions are necessary, relevant, and/or sufficient. How do the permanent exemptions affect the current state of reverse engineering, encryption research, and security testing? How do the permanent exemptions affect the activities of libraries, archives, and educational institutions? How might the existing permanent exemptions be amended to better facilitate such activities?

9. Please assess whether there are other permanent exemption categories that Congress should consider establishing—for example, to facilitate access to literary works by print-disabled persons?

 

While these are important questions and it is good to see that the Copyright Office is at least considering the idea of permanent exemptions and a streamlined process, these questions highlight the fundamental flaw of the 1201 rulemaking process.  As noted by the Library Copyright Alliance’s statement for the Judiciary Subcommittee hearing on 1201 in September 2014:

The fact that every three years the blind need to expend scarce resources to petition the Librarian of Congress to renew their exemption—or that libraries and educators have to seek renewal of the film clip exemption every three years—demonstrates the fundamental flaw in section 1201. That flaw is that section 1201 could be interpreted to prohibit the circumvention of a technological protection measure even for the purpose of engaging in a lawful use of a work. Congress should adopt the approach proposed by the Unlocking Technology Act of 2013 and its predecessors, attaching liability to circumvention only if it enables infringement.

Fair use should apply equally in the digital world and technological protection measures should not be used to limit the fair use right.  The fact that every three years, proponents of exemptions must use a great deal of time and resources to seek renewal of or a grant of exemptions to anti-circumvention rules to exercise the fair use rights is problematic and inefficient.

 

1201 Rulemaking for a New Era?

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation. Today’s topic is “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.”

*Today’s post is brought to you by guest blogger Caile Morris, ARL Law and Policy Fellow*

Every three years, the Copyright Office facilitates a rulemaking process, which considers potential exceptions to the Section 1201 prohibition of circumvention of technological protection measures (TPMs) under the 1998 Digital Millennium Copyright Act (DCMA). During this process, the Register of Copyrights conducts the rulemaking proceeding and consults with the National Telecommunications and Information Association (NTIA), making a final recommendation to the Librarian of Congress. In plain terms, this means the Copyright Office considers petitions for exemptions that allow for things like professors using video clips from Blu-Ray discs when teaching their classes, or for the print-disabled to make e-books accessible. The Office is currently undertaking a study to consider the practical application of Section 1201, including the triennial rulemaking process, to see what improvements might be made.

In the largest proceeding thus far, the 2015 Triennial Rulemaking also ranged quite far from the area of copyright, considering matters that would fit better at proceedings run by agencies like the Department of Transportation or the Environmental Protection Agency. For example, one class of works proposed for an exemption included computer programs that control motorized land vehicles, including those in cars, which if adopted would allow owners to circumvent TPMs in order to make repairs or modifications to those programs. The copyright implications of circumventing the TPMs in this software, while present, pales in comparison to implications for auto manufacturers, the Department of Transportation, and most importantly the users attempting to “tinker” with their lawfully-purchased vehicles.

The proceeding also continues to perpetuate the fatal flaw in Section 1201 – exemptions are requested for uses that would all be considered non-infringing if these same copyrighted works were analog and did not have TPMs.  ARL, as part of the Library Copyright Alliance (LCA), filed comments for the record at a House Judiciary Subcommittee hearing in September 2014 expanding on this issue explaining “that flaw is that section 1201 could be interpreted to prohibit the circumvention of a technological protection measure even for the purpose of engaging in a lawful use of a work.” LCA has also filed petitions in numerous triennial rulemakings, and expounded the absurdities of the process:

Although the section 1201 rulemaking process is legal theatre, the cost of admission is extremely high, particularly for nonprofit organizations. An entity seeking an exemption must: 1) assemble the evidence to support an exemption; 2) prepare a written request that includes the text of the proposed exemption, an argument in favor of the exemption, and a recitation of the relevant facts; 3) prepare a written reply to oppositions to the request; 4) participate in a hearing in Washington D.C.; and 5) prepare a written response to the Copyright Office’s follow-up questions. From start to finish, the process can take more than a year.

In addition to being burdensome, expensive, long and often frustrating, this process is often confusing to the public that it is meant to benefit. The language of the exemptions that result from each rulemaking has become incredibly intricate and detailed. The beneficiaries of these exemptions may not be sure they are using the exemptions correctly, and thus would not be able to put stock in the legality of their activities. So much for “you bought it, you own it” victories won in this arena being easily applicable in the real world.

The Section 1201 study being undertaken by the Copyright Office seeks to learn more about the effectiveness of the role of the anti-trafficking provisions, permanent exemptions, and the requirements of the triennial rulemakings themselves, to name a few issues.   In particular, the Office asks for written comments regarding such questions as “[h]ow should section 1201 accommodate interests that are outside of core copyright concerns . . .?,” and “. . .[h]ow do the permanent exemptions affect the activities of libraries, archives, and educational institutions? How might the existing permanent exemptions be amended to better facilitate such activities?”

A question from the Copyright Office of particular interest to the library community asks commenters to “assess whether there are other permanent exemption categories that Congress should consider establishing – for example to facilitate access to literary works by print-disabled persons?” This particular exemption has been granted in every rulemaking* since 2003, and in the 2015 Rulemaking, this petition was met without opposition. This is precisely the kind of exemption that should not have to go through this arduous process anew every three years.

Indeed, in Author’s Guild, Inc. v. HathiTrust, the Second Circuit confirmed that creating a copy of a copyrighted work for the convenience of a blind person is fair use, regardless of other accommodations found under the Americans with Disabilities Act, or the Chafee Amendment to the Copyright Act, found at 17 U.S.C. § 121:

The House Committee Report that accompanied codification of the fair use doctrine in the Copyright Act of 1976 expressly stated that making copies accessible “for the use of blind persons” posed a “special instance illustrating the application of the fair use doctrine” . . . . The Committee noted that “special [blind-accessible formats] . . . are not usually made by the publishers for commercial distribution” . . . . We believe this guidance supports a finding of fair use in the unique circumstances presented by print-disabled readers.

As LCA noted, “[t]he fact that every three years the blind need to expend scarce resources to petition the Librarian of Congress to renew their exemption . . . demonstrates the fundamental flaw in section 1201.” This, and other exemptions that have been continuously renewed, provide ample fodder for comments on expanding the current permanent exemption class.

The Copyright Office is accepting comments through February 25, and reply comments through March 25. More information on participation and specific will be posted on the Office’s website by early February. Comments urging the Office to rethink the Rulemaking in order to preserve the resources wasted on a repetitive process and making the exemptions easier for the beneficiaries to understand will help to ensure that non-infringing lawful use can continue.

*During the 2010 rulemaking process, the Register of Copyrights recommended that the exemption for those with print disabilities be denied despite the fact that the NTIA recommended renewal. The Librarian of Congress, however, overruled the Register of Copyrights and granted the exemption.

 

Nothing New Under the Sun

It’s Copyright Week, a series of activities and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, addressing what’s at stake and what we need to do to make sure that copyright promotes creativity and innovation. Today’s topic is “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.”

*Today’s post is brought to you by guest blogger Caile Morris, ARL Law and Policy Fellow*

In support of today’s theme, Jonathan Band and Caile Morris have created a document, entitled “Nothing New Under the Sun” providing examples of famous creators throughout the history of art who have built their works on existing works. The purpose of the document is to demonstrate the importance of copyright limitations to the creative process.

Proponents of strong copyright protection stress the significance of an author’s contribution to the artistic and economic value of a work. In this vision, creativity starts with an author’s spark of genius and is realized through the artist’s talent and hard work.

To be sure, great works reflect their authors’ genius, talent, and hard work. But authors do not create in a vacuum. The raw material for their creativity is existing works. Artists borrow themes, styles, structures, tropes, and phrases from works that inspire them. And if copyright overprotects existing works—if it restricts authors’ ability to build on the creative output of authors who came before them—it will be more difficult for authors to create.

Unfortunately, copyright owners and policymakers often undervalue the importance of this use of source material. They focus on rights, but not on the critical limitations to those rights that enable creativity to flourish. These limitations include: the idea/expression dichotomy and the related doctrines of merger and scenes a faire; fair use; and copyright term, which results in works entering the public domain. The failure to recognize how essential limitations are to new creative expression results in bad policy, such as the Sonny Bono Copyright Term Extension Act (adding 20 years to the copyright term) or the absence of mandatory exceptions and limitations in free trade agreement.

Hopefully, these examples of great works derived from earlier works will remind copyright owners and policymakers of the importance of copyright limitations and exceptions to the creation of new works.

ICYMI: Authors Guild Seeks Supreme Court Review of Google Books Fair Use Case

On December 31, 2015, the Authors Guild filed its petition for a writ of certiorari to the Supreme Court of the United States asking for review of the Second Circuit’s decision affirming fair use of the Google Books project.  The Second Circuit held that Google’s copying of books submitted to it by libraries and display of snippets is transformative and a fair use.  Furthermore, the Second Circuit held that Google’s provision of digital copies to its partners libraries that submitted the particular work is not an infringement.

The Authors Guild has challenged the Second Circuit’s ruling, questioning when a use is “transformative.”  The Authors Guild asserts in its petition that there is a circuit split over the meaning of transformativeness and argues that the Second Circuit’s finding that Google’s digitization of works for the creation of a full-text search database and display of snippets was not transformative because it did not create new expression.  The Authors Guild also asserts that the Second Circuit’s focus on transformativeness shifts the test for fair use from the statutory four fair use factors to a single factor.

It is far from clear, however, whether the Supreme Court will grant the Authors Guild’s petition. First, despite the Authors Guild claims a circuit split on the meaning of transformativeness, it is not clear that the six circuits cited in the petition have actually split on this issue as the facts of the cited cases differ greatly.  Furthermore, the argument that the Second Circuit has shifted to a one-factor test is clearly unsupported by the court’s October decision.  In its opinion in the Google Books case, as well as other fair use cases, the Second Circuit carefully analyzes each of the four fair use factors.  While the transformativeness of the use is certainly an important aspect, it is not the only factor and the Second Circuit certainly does not treat it as the sole determinative one.

Soon after the Second Circuit opinion was released, Professor Jane Ginsburg noted in her article, Google Books and Fair Use: From Implausible to Inevitable? that the Google Books decision “probably surprised no one.”  She noted also that “courts came to interpret Campbell’s reference to ‘something new, with a further purpose’ to encompass copying that does not add ‘new expression,’ so long as the copying gives the prior work ‘new meaning.’  Fair use cases began to drift from ‘transformative work’ to ‘transformative purpose,’ in the latter instance, copying of an entire work, without creating a new work, could be excused, particularly if the court perceived a sufficient public benefit in the appropriation.”  Ginsburg acknowledges that courts have interpreted transformativeness to include a transformative purpose and does not cite any circuit split on this issue.

Furthermore, in reviewing the opinion, Professor Ginsburg stated that the Second Circuit’s opinion was restrained and did not expand fair use.

The court’s cautious circumscription thus suggests that the Google Books decision does not herald a new extension of an already-expanded fair use defense, but (at least until a competitor with equivalent resources appears) is instead sui generis. The Second Circuit’s abstention from addressing some of the district court’s fair use analyses similarly betokens the decision’s modest scope.  For example, the district court embraced the long-spurned argument that defendant’s copying does the plaintiff a favor by bringing the work to greater public attention (“a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders”), but the Second Circuit’s opinion forgoes such contentious flourishes.

Given that the Google Books opinion does not represent a true circuit split, the Second Circuit opinion does in fact review all four fair use factors, and the outcome was an expected one, the Supreme Court may want to pass on accepting the Authors Guild’s petition for certiorari.

 

Two More Countries Ratify the Marrakesh Treaty

At the most recent meeting of the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR), two more countries deposited their instruments of ratification for the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (“Marrakesh Treaty“): Australia and Brazil.  With these recent additions, thirteen countries have now ratified and only seven more are needed for the Marrakesh Treaty to enter into force.  The Marrakesh Treaty is expected to gain enough ratifications to enter into force in 2016.  Countries previously ratifying the Marrakesh Treaty include: Argentina, El Salvador, India, Mali, Mexico, Mongolia, Paraguay, Singapore, South Korea, the United Arab Emirates and Uruguay.

The Marrakesh Treaty sets forth minimum standards for limitations and exceptions to facilitate access to accessible format works.  It would also permit cross-border sharing of these accessible formats, allowing countries to avoid unnecessary duplication of efforts and resources in the creation of these accessible works.  Additionally, the Treaty would facilitate importation of works created in other languages.

Bill C-65 in Canada was introduced in June in preparation for accession to the Marrakesh Treaty, but has not been voted on.  While the United States signed the Treaty in October 2013, signaling an intention to ratify, the Obama Administration has not yet sent the Treaty to the US Senate for ratification.  ARL remains hopeful that Canada and the United States can demonstrate leadership on this issue and be among the first twenty countries to ratify the treaty, though other countries appear to be moving swiftly toward ratification as well.

Supreme Court Hears Oral Arguments in Fisher v. University of Texas (Fisher II)

On December 9, 2015, the Supreme Court of the United States heard oral arguments in Fisher v. University of Texas at Austin, a case involving the University of Texas (UT) admissions process which seeks to improve student-body diversity.  The Association of Research Libraries joined with 37 other higher education organizations in an amicus brief supporting the University of Texas.  A number of notable individuals attended oral arguments in the case, including Cecelia Suyat, the wife of the late Thurgood Marshall.

This case was previously heard by the Supreme Court which resulted in a 2013 opinion which in a 7-1 vote (Justice Kagan recused herself), remanded the case to the Fifth Circuit.  In Fisher I, the Supreme Court directed the Fifth Circuit to reconsider the case under the higher threshold of strict scrutiny in determining whether UT’s admission policy comports with the Equal Protection Clause of the Fourteenth Amendment.  On remand, the Fifth Circuit once again upheld UT’s admission policy in which UT accepts the top 10% of graduates from Texas high schools and uses a holistic review for the remaining open spots.  The holistic approach includes many factors, with race being one of the factors.  The admissions process did not have quotas or specific goals in terms of the number of students meeting specific characteristics.

Highlights from Oral Arguments in Fisher II

Oral Arguments by Fisher

During oral arguments in Fisher II, Mr. Rein, representing plaintiff Fisher, argued that the University of Texas did not meet its burden of proving the necessity of the program and that its admission policy was distinguishable from the policy that the Supreme Court upheld in Grutter v. Bollinger (challenging University of Michigan’s law school’s admission policy) in 2003.

Justice Sotomayor challenged Mr. Rein, asking why the University of Texas’ admissions policy was impermissible if need for the program was proven or assumed.  Mr. Rein asserted that individual profiles must be compared against each other to satisfy prior Supreme Court cases.

JUSTICE SOTOMAYOR:  If they had to use race, how are they using it improperly?

MR. REIN:  If you have to use race and you want to use the model that was created in Bakke and Grutter, you would need to build profiles of individuals that would allow you to judge them one against another in the context of the class and the educational experience you are trying to create.

JUSTICE SOTOMAYOR: My God, that sounds like it’s using race more rather than less than this plan does.

MR. REIN:  I ­­- I’m sorry if it sounds that  way.  It is not.  It simply says, in a situation of the Bakke situation where you’re looking at every aspect of an individual and you’re trying to judge whether one or another of individuals for the ­ for places, the last places would most benefit the class, the class as a whole as a learning entity, then you can, as Bakke indicates, take account of the fact that they may have different backgrounds, which would contribute different ideas.

Justice Ginsburg asserted that the top 10% policy, which Fisher was not challenging, was designed to improve racial diversity as well:

JUSTICE GINSBURG: But in Grutter ­­ in both Grutter and what Justice Powell said would be proper in Bakke, race was a factor. Race, itself, was a factor. And that’s why I’m finding it very hard to distinguish what the university is doing, apart from the 10 percent plan. But let – ­­ let me ask you about the 10 percent plan itself, because it seems to me that that is so obviously driven by one thing only, and that thing is race. It’s totally dependent upon having racially segregated neighborhoods, racially segregated schools, and it operates as a disincentive for a minority student to step out of that segregated community and attempt to get an integrated education.

MR. REIN: Justice Ginsburg, let ­­- let me respond to this, with respect, this ­­ this way. The top 10 plan does not classify anybody by race. It addresses only standing within the Texas educational system.

JUSTICE GINSBURG: But it could work only in the background.

MR. REIN: When you say “work,” it works on a number of fronts. It creates geographic diversity. It looks all over Texas. It doesn’t distinguish between high schools. It creates socioeconomic diversity. It does have an effect, a demonstrated effect on race because a number of minorities, the type they care about, are admitted under the top 10 program. It’s not based on race. It’s based on the degree of effort you make relative to the other people with whom you’re being ­­-

JUSTICE GINSBURG: It is created because of race.

MR. REIN: I ­­ I’m not in a position to tell you why it was created. It ­­ it was created ­­

JUSTICE GINSBURG: Is there any doubt that it was created to increase the number of minority students? Was there any other reason for the 10 percent plan?

MR. REIN: Well, I’ve given you other reasons, which are it’s a ­­ it’s kind of a democratic recognition that you want to invite people from all over Texas, regardless of the school they went to. You’re looking for those who are trying the hardest, who are doing the best, who excel in their environment.

When questioned about what would constitute sufficiently concrete criteria to achieve diversity, Mr. Rein conceded that it is difficult but did not offer specific solutions:

JUSTICE KENNEDY: You argue that the University of Texas’ goals and­­ or announced goals are insufficiently concrete. Can you give an example of what, in your view, would be a sufficiently concrete criterion or set of criteria to achieve diversity?

MR. REIN: Well, and ­­ and certainly, the Solicitor General’s attempted to do so by breaking down the abstract goals into concrete objectives. One goal that certainly Grutter respects is, if you have studied your campus and you believe there’s an inadequate exchange of views, and the minorities feel so isolated they cannot properly bring to bear their perspective on the campus, you can look at measures of how successful are we in this kind of dialogue and try to investigate that, and try to say, okay, is there a level ­­you know, when do we reach a level of critical mass, which is the term in Grutter, where that exchange is vibrant and is taking place on our campus. That’s one measure.

CHIEF JUSTICE ROBERTS: Well, but I don’t understand. How do you do that?

MR. REIN: It’s not easy to do, and it’s not our job to do it. I mean, we’re not here to tell them how to do it, but your ­­ if one wanted to endeavor to try to find this kind of concrete level, we’re not saying quota, but we are saying you have to ­-­ you, the university, if you want to use this forbidden tool, this odious classification, you’ve got to find a way to do it. You’ve got to be able to explain what your concrete objective is.

Justices Sotomayor and Breyer discussed how administrators, faculty and students may raise issues highlighting the need for improved diversity on campus.

JUSTICE SOTOMAYOR: You’re saying we can’t they can’t use demographics. So they use a study that shows there’s less classes. There’s less people in classes. They talk to administrators, faculty, and students. They’re having racial incidents on campus where students of color are complaining that they feel isolated, that stereotyping is going on, on campus. What more do they need?

MR. REIN: Let me start with your first concern, which is this classroom study. First thing I would observe about that if I were in their position, and I’m not, is that the second study was done at a time when there were more minorities admitted than the first study, and they claimed it went backwards. So that might tell me right away that the problem ­­ the necessity for using race could not be demonstrated for that, because when you ­­

JUSTICE BREYER: Yeah. Because the ­-­ the necessity is not the necessity you’re talking about. It’s the – ­­ as I read it. I mean, you use words like “critical mass” and so forth. It sounds like a cloud of sort of you don’t know what they’re talking, but as I read further into it, it becomes quite specific, that is, 75 percent of the students are at this university because they were in the top 10 percent of their class. And it doesn’t take long before students and faculty in particular situations know who is who. 25 percent of the students in that class are admitted; they’re good students, not in the top 10 percent on the basis of leadership, activities, awards, work experience, community service, family’s economic statutes, school status, family responsibilities, single­parent home, languages other than English spoken at home, SAT score relative to school’s average and race occasionally, too.

Okay? We’re talking about that 25 percent. And it won’t take long before students in a class see that in that 25 percent, which means you aren’t just in the top 10 percent of your class, in that 25 percent there is hardly anybody who is African­ American or Hispanic. And the -­­ and seven years of experience with that kind of thing led the faculty at meetings, administrators, and others to say, we should do more to see that that 25 percent has occasionally somebody who is a minority.
[. . .]

That’s what their program is. It isn’t something like critical mass, et cetera. And ­­ and ­­ and if you have to say, it seems to me, why is that not a diversity-­related judgment of what is necessary?

MR. REIN: So, Justice Breyer, let me answer that. First of all, one thing your question establishes quite clearly is if one assumes premises from evidence that doesn’t exist, you can draw conclusions that are perhaps invalid. So let me go back to ­­ to where you started. You say these people are admitted on the basis of the various PAI [Personal Achievement Index] factors, which you read. That’s not how they’re admitted. That PAI is only part of the admissions criteria . . . And it’s not truly holistic because in the holistic systems, you look at the person as a whole. Here you could have the most wonderful PAI and never come close to admission, because they use the AI [Academic Index] independently. So they’re not admitted ­­

JUSTICE BREYER: Every school is like that. Every school in the country that’s a college that I’ve ever experienced is a combination of grades, class position, and a lot of other things.Welcome to EditPad.org – your online plain text editor. Enter or paste your text here. To download and save it, click on the button below.

Justice Kennedy seemed interested in the possibility of remanding the case to the District Court level and questioned Mr. Rein’s opposition to remand.  Justice Scalia, however, opposed remand to the District Court, arguing that the University of Texas is not entitled to a second chance to develop the record.

JUSTICE KENNEDY: May I begin with almost a procedural point: Did you object to the University’s request that this case be remanded to the district court?

MR. REIN: We did in ­­ in the Fifth Circuit.

JUSTICE KENNEDY: In the Fifth Circuit. It does seem to me, as Justice Alito’s question, and frankly some of the other questions have indicated, that the litigants, and frankly this Court, have been denied the advantage and the perspective that would be gained if there would be additional fact­finding under the instructions that Fisher sought to give. And that just ­­ we’re just arguing the same case . . . It’s as if nothing had happened . . .­­ it seems to me that Justice Alito’s question indicates that this is the kind of thing that we should know but we don’t know.

MR. REIN: Well, let -­­ let me point out that the ­­ the purpose of strict scrutiny is not just to adjudicate. It is to instruct the University that before you use the odious classification, before you employ race, you ought to know these things. If you’re going to depend on them, you ought to study them and know them. So the failure to do that so there is no evidence is not just because they didn’t put it in ­­

JUSTICE KENNEDY: But they weren’t given the chance to add additional evidence in order to meet that standard.

MR. REIN: Well, they can’t go back and recreate the past. They can’t ­­ they have put in all the evidence available to them about ­­

JUSTICE KENNEDY: But they could answer some of the questions as ­­ like the ones Justice Alito added. And I think it’s a very important point.

MR. REIN: They could -­­ I mean, but they’d have to go back and study the conditions at the time they made the decision. And I think that the failure to do that kind of thing indicates that the retreat to race was reflexive; was done on the day Grutter came down.

JUSTICE SCALIA: Not only that. Also the failure to put it in. It was their burden to put it in, wasn’t it? . . . So we’re going to say, oh, they failed to put it in. Let’s give them another chance. Let’s do a do-­over. Send it back down so they can now put in what they should have put in in order to prevail the first time around.

MR. REIN: And that I -­­ I entirely agree with that. And in ­­ in fairness, they knew that the standard was strict scrutiny. Grutter had said strict scrutiny. Bakke said strict scrutiny. It was no surprise. And Justice Alito, more directly, the evidence we did find in the record indicated that where the most selective schools were concerned, which would then lead you to the smaller classes, more of the top ten minorities enrolled in that than the added minorities that they derived ­­

JUSTICE ALITO: Well, the issue in this case is not whether the University can have holistic review . . . The issue is whether they can have as a component of holistic review after they have taken into account other characteristics that are not dependent on race; they can add race as an additional characteristic. And so if it were ­­is there ­ would there be any way of determining, if there were a remand, which of the non­-top 10 admittees were admitted solely because of race? In other words, these students would not have been admitted taking into account leadership and family, education and socioeconomic background and hardship and everything else.

Mr. Rein asserted that the holistic review using race as a factor produced only a marginal increase in diversity.  When Justice Sotomayor disputed this point pointing out to a larger rate of admissions offers granted to minority students, Mr. Rein argued that the University of Texas has not fully measured the effect of using race as a factor.

Justice Sotomayor raised the concern that “If you’re reading proof a compelling need . . . will any holistic review ever survive? Because as I’m reading your answer, to narrowly tailor, schools have to use nonracial means of doing it.  And if the 10 percent plan is the only thing that achieves a greater number of minorities, won’t every school have to use a 10 percent plan?”

Justices Breyer and Ginsburg then questioned Mr. Rein on his views on how race could be used as a factor in the holistic approach.

JUSTICE BREYER: No, but that’s exactly the question, I think. I would ­­= I can put the same question ­­ or suppose we do send it back to the district court and, put in more evidence, we tell them. Suppose we did that. And suppose they start with the basic plan where we want to use race is in the 25 percent of the holistic area. We want to do that. Now, they’re using the chart ­­ and I’ve seen the chart ­­ of the factors that are one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve. You know, using that chart. I’ve seen the chart. And at the bottom of the chart in my list is the word “race.” It says “race,” r-a-­c-­e. Okay? What kind of evidence, in your opinion, could they or anyone else with any roughly similar plan put in that would show, in your view, that this is constitutional?

MR. REIN: Well, I mean, you have the example of Justice Powell’s opinion in Bakke. And that says that if you’re looking at the whole person and you’re comparing individuals one to another to say who will best suit the educational need of the class, then you take account of a person’s race. It’s part of the -­­ the exercise . . .

[. . .]

JUSTICE BREYER: What you’re saying is you should look at the two folders, and as a kind of tiebreaker, use race. That, to you, is okay. Now, is there ­­ you said there is several others? It would be helpful if you ­­ if you can summarize them in a sentence, so I get an idea of what the others are.

MR. REIN: You could ­­ you could give more emphasis to the socioeconomic factors in the school.

JUSTICE BREYER: That’s not to use race. I’m saying r-­a-­c-­e, race. I want to know which are the things they could do that, in your view, would be okay. Because I’m really trying to find out. Not fatal in fact, we’ve said. Okay? Not fatal in fact. Fine. What are the things, in your view, that they could do so it is not fatal in fact?

MR. REIN: And what I’ve said first is they could shape their system more toward the Bakke system, and move toward individualized consideration. That’s one thing. That’s not fatal in fact, because this Court endorsed the ­ the view that Justice Powell took of the Harvard system in Bakke. So that’s one. They could expand the top 10. That’s another alternative. That’s ­­ that’s available. They could,­­ as I said, they could re-score some of this ­­

JUSTICE GINSBURG: But the top 10, you said it doesn’t use race. Justice Breyer is asking, you say yes, race can be a factor. It was a factor in Bakke. It was a factor in Grutter. And so far, you’re saying that now it can be a factor only if what? I mean, we’re not talking about so­-called neutral factors. We’re talking about ­­-

MR. REIN: Well, I mean, the first question is, you know, why are you using it? The why. Therefore, it can be a factor. You have to clarify the objective, you have to show the necessity, and you have to show that, if you, as ­­ as they do, live with and accept, over time, a very small increment in a very small segment of the class, that you can’t get it done any other way . . . Because race is not the baseline. It’s an odious classification. That’s where we differ.

As Mr. Rein’s time expired, Justice Ginsburg questioned what relief the plaintiff, Ms. Fisher, was seeking.  She pointed out that injunctive relief was not possible due to the fact that Ms. Fisher graduated from another institution already and that there was no class action.  Mr. Rein indicated that they would seek damages, including a refund of Ms. Fisher’s admission fees.

Oral Arguments by the University of Texas

Mr. Garre represented UT and opened his argument by summarizing that the record supports a need for the holistic plan, that the holistic policy has had a meaningful impact on diversity, and that the policy did not adopt a quota.

Justice Alito questioned how many students were admitted with race as a factor who would not have otherwise been admitted.  He also raised concerns that requiring a holistic review raised stereotyping issues regarding minority students admitted under the top 10% policy.

JUSTICE ALITO: Well, on that point, can you determine which of the holistic admittees would not have been admitted if race was not added to the ­­ to the determination?

MR. GARRE: Okay. This goes to the meaningful impact point, and I think there are several ways to address it, Justice Alito. First, what you can do is you can look in the increase in African-­American and Hispanic holistic admissions after the consideration of race was added. And what you find is, is that in each year, 2005, 2006, 2007, the percentage of African­-American and Hispanics admitted and enrolled under the holistic plan grew. In fact, there was a 70 percent ­­-

JUSTICE ALITO: That’s not really my question. My question was if you look at an individual person, can you tell whether that person was admitted because ­­ solely because of race? Whether that person would not have been admitted were it not for the fact that the person was an African­-American or Hispanic?

MR. GARRE: Your Honor, I think, given the contextualized and individualized nature of that inquiry, that’s going to be difficult. But I think the record nevertheless answers your question because you can show a marked increase in diversity under the plan at issue. I just ­­ I’ve just explained to you how the record confirms that holistic admissions of African-­Americans and Hispanics increased markedly in each year. If you look at student body diversity overall, African­-American enrollment increased by two, doubled from 2002 to 2008 from about 3 percent to about 6 percent.

JUSTICE ALITO: What ­­ one of the things I find troubling about your argument is the suggestion that there is something deficient about the African­-American students and the Hispanic students who are admitted under the top 10 percent plan. They’re not dynamic. They’re not leaders. They’re not change agents. And I don’t know what the basis for that is . . . It’s ­­ really it’s based on a terrible stereotyping that ­­. . . What is the basis for that? ­­

MR. GARRE: It’s exactly the opposite. This Court has said time and again that you can’t assume that minorities think alike just because they have the same skin color. What the University of Texas does is it considers ­ it takes into account the fact that people who come from different experiences, different backgrounds are going to have different contributions to the class. If you had the situation where all the out-of-­State admits or most of the out-­of­State admits were coming predominantly from western States, then the University of Texas and any university would try to get out-­of-­State admits from other parts of the country because it would want the ­­ both perspectives. . . What stereotyping, Your Honor, is saying, that just because you get a sufficient number of blacks or Hispanics under the 10 percent plan means that you can’t look at the class holistically and say, we’re not getting a variety of perspectives among African-­Americans or Hispanics.

JUSTICE ALITO: Yeah. But what is the basis for saying that? That’s what I don’t understand. It’s kind of the assumption that if the ­­- if a student -­ if a black student or a Hispanic student is admitted as part of the top 10 percent plan, it has to be because that student didn’t have to compete against very many whites and -­ and Asians. In -­­ in the high school class, it’s a really pernicious stereotype.

MR. GARRE: It’s ­­ it’s not a stereotype at all, Your Honor. It’s based on the undeniable fact about the manner in which the top 10 percent plan operates. The Top 10 Percent Law was enacted in response to Hopwood, and there’s nothing ­­ there’s no challenge to the law in this case that admits many well-­deserving students. But the fact is, is that -­­ that the way that the Top 10 Percent Law admits minority students is by admitting those students from the lower­performing, racially identifiable schools. And the way ­­ the reason we know that is because if you look at the bill analysis decided by Justice Ginsburg in her descent the last time we were here, that analysis specifically says on page 4, “Because of the persistence of segregation in this State, minority students will be admitted under the top 10 percent plan.”

JUSTICE ALITO: I don’t doubt that that is one of the things that it does, and I would have thought that that would be something that you would regard as beneficial . . . Wasn’t that the ­­- the reason for adopting affirmative action in the first place because there are people who have been severely disadvantaged through discrimination and ­­ and lack of wealth, and they should be given a benefit in admission . . .­ but that’s one -­­ one of the things that it does, but it’s not the only thing that it does.

MR. GARRE: Your Honor, the University of Texas applauds those students. It wants those students. Those students are admitted through holistic review as well. Nevertheless, the University can look at an incoming class and determine that not all the perspectives among a particular class of students is being represented. This is straight out of the Harvard plan in Bakke.

In defending the need for the policy, Mr. Garre pointed out that UT was pursuing educational benefits of diversity that have been recognized by the Supreme Court.  UT also noted that the top-10 percent plan was compromising its educational objectives.  Additionally, UT found that there was a decrease in student body diversity under race-neutral policies and that it therefore needed to change its policies to improve diversity.  Mr. Garre noted that in reviewing the policy, UT looks to “classroom diversity.  We look at feedback from students; from faculty . . .the racial climate, including incidents.”

Chief Justice Roberts pointed out that the Court in Grutter opined that the type of policies at issue would only be needed for the next 25 years, but that 12 years had already passed since the Court’s decision.  He asked Mr. Garre when UT would no longer need such policies:

CHIEF JUSTICE ROBERTS: Well, you’re talking about the time ­­ Grutter said that we did not expect these sort of programs to be around in 25 years, and that was 12 -­­ 12 years ago. Are ­­ are we going to hit the deadline? Is this going to be done on in your view in 12 years?

MR. GARRE: Your Honor, I’m not here to give you a date, but what I would say is this: There are systematic problems that these problems ­­ that these policies are attempting to address, including the test score gap between ­­ between African­Americans and Hispanics. And ­­ and the record in this case overwhelmingly shows that without the addition of race, student body diversity suffered, particularly among
African-­Americans.

CHIEF JUSTICE ROBERTS: I understand. I don’t know whether that’s a yes or no. But it was important in the Grutter court that these were a temporary ­­ as necessary, temporary expedience because we’re talking about giving you the extraordinary power to consider race in making important decisions. And we don’t do that as a matter of ­­. . .­ course. And so it was important in Grutter to say, look, this can’t go on forever, 25 years. And when do you think your program will be done?

MR. GARRE: Your Honor, as soon as we ­­- we can achieve the same ­­ sufficient numbers for the educational benefits of diversity without taking race into account, we will no longer take race into account.

In further advancing his argument for the need to use race as a factor, Mr. Garre pointed out to the small number of African-American students enrolled under a race-neutral approach.  He also noted evidence then that “90 percent of our classrooms of the most common size was zero or one African-American.”  Chief Justice Roberts, however, interjected, questioning the value of racial diversity in a physics class. Justice Scalia asserted that the Court has not accepted the need for diversity in a class-by-class basis.

Justice Kennedy returned to the possibility of remand to the district court and asked what evidence UT would have submitted to supplement the record.  Mr. Garre suggested they would have put in additional evidence regarding standing and could also supplement the record as to how those admitted through the holistic approach contributed meaningfully to the student body.  Ultimately, Justice Kennedy suggested that “if you had a remand, you would not have put in much different or much more evidence than we have in the record right now.”  Mr. Garre disputed this characterization and pointed out that the record was only based on the motion for summary judgment and did not include a full trial.

Justice Scalia asserted that diversity may not serve minority students well:

JUSTICE SCALIA: There are – there are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less slower-track school where they do well.  One of the briefs pointed out that – that most of the black scientists in this country don’t come from schools like the University of Texas . . . They come from lesser schools where they do not feel that they’re that – they’re being pushed ahead in – in classes that are too fast for them.  I’m just not impressed by the fact that the University of Texas may have fewer.  Maybe it ought to have fewer.  And maybe some – you now, when you take more, the number of blacks, really competent blacks admitted to lesser schools, turns out to be less.  And – and I- I don’t think it – it stands to reason that it’s a a good thing for the University of Texas to admit as many blacks as possible.  I just don’t think –

MR. GARRE:  This Court heard and rejected that argument, with respect, Justice Scalia, in the Grutter case . . . If you look at the academic performance of holistic minority admits versus the top 10 percent admits, over time, they fare better.  And, frankly, I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools.  I think what experience shows, at Texas, California and Michigan, is that now is not the time and this is not the case to roll back student body diversity in America.

Oral Arguments by Amicus Curiae the United States of America

Solicitor General Verrilli argued on behalf of the United States and pointed to a compelling interest in improving diversity. He noted that “the University has got to articulate a reasoned, principled explanation for its decision to consider the educational benefits of diversity in a matter that this Court has found to be constitutional and substantial.  The University of Texas has met that standard, has articulated exactly the same educational benefits of diversity at exactly the same level of specificity that this Court held constituted a compelling interest in the Grutter case at page 330.  It’s exactly the same.”

Justice Breyer asked whether sending the case back for more evidence for the record might be beneficial.  General Verrilli responded that the record seemed complete for the purpose of affirming the case, but that “if there is doubt, I do think the additional kind of information that might be developed in this case would be to look at the kinds of questions that the Chief Justice was actually asking about, how did the  – how has the program worked in practice over the period of time in which it’s been implemented.  And I think that would be additional relevant information that might help make the judgment.”

General Verrilli also asserted the importance of diversity because

our military leaders believe that it is imperative that we have officer corps that are not only diverse but capable of leading a diverse military, not only for effectiveness but for the very legitimacy of sending our troops in harm’s way.

[ . . . ]

The interest in having law enforcement officers who are not just diverse but who can operate effectively within every racial and ethnic community in highly charged situations is critically important.

Corporate America has told you that having a workforce that is able to function effectively in diverse situations is critical.

And what I would just say in conclusion is that these are the considered judgments of people who actually have the responsibility to ensure that the vital functions of the government protecting the country with the military and with law enforcement and the vital functions of commerce — these are the people who actually have to make sure that these functions are carried out. And this is their considered judgment, and I submit it’s – it’s worth considerable weight in your analysis.

What’s Next?

With Justice Kagan recusing herself, only eight justices will decide the case.  Based on prior opinions, concurrences and dissents, it appears clear that Justices Scalia and Thomas would not uphold the University of Texas’ admission policy with Justices Ginsburg, Breyer and Sotomayor would.  While it can be difficult to predict the actual outcomes of the case, it does not appear that Justice Alito was particularly sympathetic to the University of Texas, leaving Justices Roberts and Kennedy.

Aside from a majority ruling either way, If the Court splits 4-4, the Fifth Circuit’s ruling will stand.  Additionally, the Court could remand the case once again, this time back to the District Court level in order to develop a more complete record.  It seems that there could be some support for this approach from Justices Breyer and Kennedy.

The Court is expected to rule before it concludes its 2015-2016 term in June, though an opinion could be released sooner.

 

On the International Day of Persons with Disabilities, ARL Urges Ratification of Marrakesh Treaty

Today, December 3, 2015 is the International Day of Persons with Disabilities with the theme of “Inclusion matters: access and empowerment for people of all abilities.”  One concrete way for countries to promote access and empowerment would be to ratify the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (Marrakesh Treaty).

The Marrakesh Treaty creates minimum standards for copyright limitations and exceptions for the creation and distribution of accessible formats and allows for the cross-border exchange of these formats. The cross-border exchange is a critical feature and could greatly alleviate what is known as the “book famine,” a situation in which the National Federation for the Blind estimates that no more than 5 percent of published works are created in an accessible format. The ability to import works from other English speaking countries would aid in growing the collection of accessible format works in the United States and avoid unnecessary duplication of efforts in the creation of these formats. Perhaps of even greater benefit would be the ability to import works in other languages for those in the United States who do not speak English as a first language, such as large populations of Spanish, French, Chinese, Russian, German, Italian, Korean or Vietnamese speaking individuals. It would also benefit those who are learning foreign languages. Significantly, the treaty would allow those in developing countries, which generally have an even smaller number of accessible formats available, to import works from the relatively larger collections in the United States and elsewhere.

In order for the Marrakesh Treaty to enter into force, twenty countries must ratify or accede to the treaty. Currently, eleven countries – Argentina, El Salvador, India, Mali, Mexico, Mongolia, Paraguay, Singapore, South Korea, the United Arab Emirates and Uruguay – have ratified and nine more are needed.

The United States signed the Marrakesh Treaty in October 2013, signaling support for and an intention to ratify the treaty, but the Obama Administration has not yet sent the treaty to the US Senate for ratification. Efforts in Canada appear to be further along and a bill to amend the Copyright Act in preparation for accession to the Marrakesh Treaty was proposed on June 8, 2015.  Countries like the United States and Canada can and should show leadership in supporting the rights of persons with disabilities and swiftly ratify or accede to the Treaty.

ARL has long supported efforts to improve accessibility.  Those who are visually impaired may face significant obstacles in attaining access to information or culture.  ARL urges swift ratification of the Marrakesh Treaty to support access and empowerment for those with print disabilities.

D.C. Circuit Court to Hear Net Neutrality Arguments on December 4

On Friday, December 4, 2015, the Court of Appeals for the D.C. Circuit will hear oral arguments in United States Telecom Ass’n v. Federal Communications Comm’n.  The case comes to the D.C. Circuit after a number of telecommunications associations and companies filed petitions asking for review of the Federal Communications Commission’s (FCC) Open Internet Order governing net neutrality.  The FCC drafted and implemented its 2015 Open Internet Order after months of consultation following a January 2014 decision by the D.C. Circuit overturning the FCC’s 2010 net neutrality order.  The FCC’s 2015 Order, which reclassifies broadband Internet as a Title II common carrier and imposes bright line rules as well prohibiting unreasonable interference, was approved in February and went into effect in June.

ARL, together with the American Library Association (ALA), Association of College and Research Libraries (ACRL), and the Chief Officers of State Library Agencies (COSLA) filed an amicus brief in September 2015 supporting the FCC’s Open Internet Order and explaining the importance of net neutrality for the library community.

The case will be heard by Judge Tatel, who authored the the 2014 Verizon v. FCC opinion striking down the FCC’s 2010 Open Internet Order, as well as Judge Williams and Judge Srinivasan.

YouTube Announces It Will Defend Some Creators’ Fair Use Claims

YouTube recently announced that it will protect “some of the best examples of fair use on YouTube” by defending some creators in copyright litigation.  Under this initiative, YouTube “indemnifies creators whose fair use videos have been subject to takedown notices for up to $1 million of legal costs in the event that takedown results in a lawsuit for copyright infringement.”

The announcement notes:

We’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it . . . In addition to protecting the individual creator, this program could, over time, create a “demo reel” that will help the YouTube community and copyright owners alike better understand what fair use looks like online and develop best practices as a community.

Fair use is a critical right under United States copyright law that accommodates the First Amendment, is flexible and responsive to change, and supports the constitutional purpose of copyright: to “promote the progress of science and the useful arts.”  Fair use allows for creators to use copyrighted works in transformative ways, including for purposes of parody, commentary and criticism, and innovation.  Many videos on YouTube rely on fair use, incorporating other copyrighted works, but using them in transformative ways and we applaud YouTube’s decision to defend some creators who rely on this important doctrine.

Efforts by the Anne Frank Foundation to Prevent Anne Frank’s Diary from Entering Public Domain

Copyright term in several countries, including the United States and European Union, go far beyond international standards.  The current term is set at the life of the author plus seventy years and this lengthy term severely harms the public domain and contributes to the orphan works problem.  Some past blog posts on copyright term can be found here (myths and facts) and here (term and the public domain).

This copyright term, which extends well beyond the life of the author, has no policy justification.  In fact, according to the UK-commissioned independent review of copyright by Ian Hargreaves:

Economic evidence is clear that the likely deadweight loss to the economy exceeds any additional incentivising effect which might result from the extension of copyright term beyond its present levels. This is doubly clear for retrospective extension to copyright term, given the impossibility of incentivising the creation of already existing works, or work from artists already dead. Despite this, there are frequent proposals to increase term . . . The UK Government assessment found it to be economically detrimental. An international study found term extension to have no impact on output.

Despite the fact that copyright term is unacceptably long, where a work is still profitable many years after an author’s death, the current rightholders will seek ways to extend term further.  The New York Times recently reported that the Anne Frank Foundation is doing just that by claiming that the her father was a co-author and the copyright term should expire 70 years after his death in 1980, rather than Anne Frank’s death in 1945.  Thus, Anne Frank’s diary would not enter the public domain on January 1, 2016 (70 years after Anne Frank’s death), but would instead be extended another 35 years and would not enter the public domain in Europe until January 1, 2051.  (NB: The copyright term would not be affected in the United States, because United States copyright law grants a 95 year copyright term for foreign works published between 1923 and 1977).

Otto Frank, Anne Frank’s father, claimed in a prologue to the published diary that the diary was written by his daughter.  However, according to the New York Times article, the Foundation is claiming that Otto Frank “‘created a new work’ because of his role in editing, merging and trimming entries from her diary and notebooks and reshaping them into ‘kind of a collage’ meriting its own copyright.”

There are several absurdities to this story.  First, Otto Frank could have claimed co-authorship during his lifetime, in the decades between the publication of the diary and his death, but never appears to have done so.  The Foundation could have claimed co-authorship soon after his death in 1980, but instead waited until just six years ago to seek copyright advice, seemingly motivated by the fact that the work’s copyright term is set to expire at the end of this year.  It seems bizarre to allow the Foundation to now try to claim copyright on behalf of a man who never tried to do so during his lifetime, and which it never sought to do in the several decades after his death.  This move appears solely motivated by the royalties the Foundation will lose when the work enters the public domain.

Additionally, as pointed out by Mike Masnick of TechDirt, “who in their right mind thinks that copyright was the ‘incentive’ necessary for Anne Frank to write her diary?”  Justice Stevens, in his 2003 dissent in Eldred v. Ashcroft pointed out the absurdity of copyright extensions in incentivizing the creation of works:

No potential author can reasonably believe that he has more than a tiny chance of writing a classic that will survive commercially long enough for the copyright extension to matter. After all, if, after 55 to 75 years, only 2% of all copyrights retain commercial value, the percentage surviving after 75 years or more (a typical pre-extension copyright term)—must be far smaller. Seesupra, at 248; CRS Report 7 (estimating that, even after copyright renewal, about 3.8% of copyrighted books go out of print each year). And any remaining monetary incentive is diminished dramatically by the fact that the relevant royalties will not arrive until 75 years or more into the future, when, not the author, but distant heirs, or shareholders in a successor corporation, will receive them. Using assumptions about the time value of money provided us by a group of economists (including five Nobel prize winners), Brief for George A. Akerlof et al. as Amici Curiae 5-7, it seems fair to say that, for example, a 1% likelihood of earning $100 annually for 20 years, starting 75 years into the future, is worth less than seven cents today. See id., App. 3a; see also CRS Report 5. See generally Appendix, Part A, infra.

What potential Shakespeare, Wharton, or Hemingway would be moved by such a sum? What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account? The Court itself finds no evidence to the contrary. It refers to testimony before Congress (1) that the copyright system’s incentives encourage creation, and (2) (referring to Noah Webster) that income earned from one work can help support an artist who “`continue[s] to create.'” Ante, at 208, n. 15. But the first of these amounts to no more than a set of undeniably true propositions about the value of incentives in general. And the applicability of the second to this Act is mysterious. How will extension help today’s Noah Webster create new works 50 years after his death? Or is that hypothetical Webster supposed to support himself with the extension’s present discounted value, i. e., a few pennies? Or (to change the metaphor) is the argument that Dumas fils would have written more books had Dumas père‘s Three Musketeers earned more royalties?

Copyright term is currently too long.  Allowing rightsholders to claim co-authorship, decades after the deaths of the actual author as well as an alleged co-author, as an attempt to extend copyright term further is a blatant and unacceptable attack on the public domain motivated solely by attempts to demand more royalties.  The Diary of Anne Frank should enter the public domain at the end of the year as it is currently scheduled and be made free for people to read, and for historians and researchers to use and study.