LCA submits additional comments to the Copyright Office on orphan works and mass digitization

On Friday, May 16, 2014, the Library Copyright Alliance submitted additional comments on orphan works and mass digitization in response to the Copyright Office’s notice of inquiry. These comments address the discussions from the March 10-11, 2014 public meeting on orphan works and mass digitzation noting the complete lack of consensus on these issues, the concerns regarding extended collective licensing solutions, and the appropriateness of best practices developed by user communities. The first day’s transcript of the public meeting is available here and the second day’s transcript is available here.

No Consensus on Orphan Works Legislation

In response to the Copyright Office’s request for comments in 2013, LCA noted that the opinions submitted represented diverse and wide-ranging opinions, suggesting that it would be extremely difficult to find consensus on these issues. The public meeting highlighted the continued diversity of opinion and “the divisions between different communities may be even deeper now than before.” The additional comments filed by LCA summarize the comments and divisions made during the panels.

LCA’s additional comments point out that there was hostility during the public meeting which, “exposed a basic divergence concerning the correctness of fair use decisions over the past decade. Indeed, one rights holder representative compared the recent fair use case law to Plessy v. Ferguson, suggesting that these fair use holdings were as legally and morally flawed as the Supreme Court’s 1892 ruling upholding the ‘separate but equal’ doctrine. The inflammatory nature of this analogy was exceeded only by another rights holder representative threatening three times during the course of one panel to sue libraries …”

Extended Collective Licensing

The LCA comments note that unlike the other topics discussed, the discussion regarding extended collective licensing (ECL) seemed to be in agreement that ECL would not be an effective solution to issues relating to mass digitization. The comments submitted by LCA summarize the discussions from the public meeting, which highlighted the problems of collecting societies. Additionally, the LCA statement points to comments made with respect to the value-add of mass digitization projects undertaken by libraries and benefits mass digitization has provided for persons who are blind or print disabled.

Best Practices

LCA’s additional comments also cover statements made regarding best practices at the public meeting, pointing out that “representatives of libraries, archives and documentary filmmakers noted that the best practices developed by their communities provided useful guidance concerning the application of fair use to activities relating to orphan works and mass digitization.”

The comments also address the arguments by right holders that these best practices do not have validity because they were not developed in consultation with right holders. LCA notes that “To the contrary, codes of fair use best practices developed by specific communities do have legal significance” and that community use may help judges make fair use determinations. Furthermore, the comments point out that the best practices “are not intended to be negotiated compromises that take the place of legislation. Rather, they are intended to be expressions of norms and customs relating to specific uses in specific communities.” Additionally, negotiations around best practices on these issues with rightholders are likely to be futile.

LCA’s comments highlight ARL’s Code of Best Practices in Fair Use for Academic and Research Libraries which provide nuanced fair use guidance for libraries in a variety of circumstances, including situations relating to orphan works and mass digitization. These situations include, for example, addressing preservation of at-risk items; creating digital collections of archival and special collection materials; creating databases to facilitate non-consumptive research uses; and collecting material posted on the World Wide Web and making it available.

Web Accessibility Toolkit for Research Libraries Launched by ARL

On the third annual Global Accessibility Awareness Day (#GAAD), May 15, 2014, the Association of Research Libraries launched a new resource for the library community—a Web Accessibility Toolkit for research libraries. ARL’s toolkit shares the fundamental goal of GAAD which is to ”raise the profile” of digital accessibility and provide resources for improving access to information to “the broadest audience possible.” The toolkit aims to:

  • Promote the principles of accessibility, universal design, and digital inclusion.
  • Help research libraries achieve digital accessibility.
  • Connect research libraries with the tools, people, and examples they need to provide accessible digital content.

The lead author on the Web Accessibility Toolkit was Molly Schwartz, a member of the inaugural class of the National Digital Stewardship Residency (NDSR) program who was in residence at ARL in 2013–2014. The NDSR program is a deeply valuable partnership between the Institute of Museum and Library Services and the Library of Congress. The mission of NDSR “is to build a dedicated community of professionals who will advance our nation’s capabilities in managing, preserving, and making accessible the digital record of human achievement. This will enable current and future generations to fully realize the potential of digital resources now and for years to come.”

Since the inaugural NDSR class was selected to work in Washington, DC–area institutions, the program has been extended to New York and Boston. More information on these new fellowship opportunities is available on the NDSR website.

ARL’s engagement on issues relating to accessibility includes providing resources to ARL member libraries—such as the Report of the ARL Joint Task Force on Services to Patrons with Print Disabilities (PDF)—and strongly advocating over a number of years at the World Intellectual Property Organization for a treaty for the visually impaired, which was approved in June 2013. The “Marrakesh Treaty” will significantly improve access to books for millions of people who are blind, visually impaired, and print disabled. ARL hopes its new Web Accessibility Toolkit will help libraries continue to improve access to resources for all of their patrons, regardless of ability or disability.

Federal Communications Commission (FCC) Issues Notice of Proposed Rulemaking on Open Internet/Net Neutrality

At an Open Meeting held on May 15, 2014, the Federal Communications Commission (FCC) considered the issue of “Protecting and Promoting the Open Internet,” or net neutrality. It voted on a Notice of Proposed Rulemaking (NPRM), which proposes new rules in accordance with the decision of the Court of Appeals for the D.C. Circuit that overturned the FCC’s 2010 Open Internet Rules regarding anti-discrimination and anti-blocking.

As a result of the decision, service providers could allow priority delivery for those willing to pay to promote their content, advancing commercial interests over research library and higher education interests. ARL, together with the American Libraries Association and EDUCAUSE, filed a letter with the FCC on February 13, 2014 advocating for an open Internet and expressing disappointment and concerns with the D.C. Circuit ruling.

An official from the FCC noted that there are currently no legally enforceable rules governing the Internet and the agency seeks to restore rules to ensure that the Internet remains an open platform for communication and growth. Six key elements to the NPR were mentioned:

  1. Maintains the definition and scope of the 2010 rules. The FCC does, however, seek comment regarding whether that scope is still appropriate or whether it should be expanded, for example, to include mobile networks.
  2. Seeks to enhance the transparency rule upheld by the D.C. Circuit.
  3. Intends to institute a no-blocking rule, with clarification on the minimum level of access to broadband subscribers.
  4. For conduct not prohibited by the no-blocking rule, would create a legal rule on commercially reasonable practices. The NPRM seeks comment on whether paid prioritization should be banned outright.
  5. Seeks to implement a multifaceted dispute resolution system, including an ombudsman to act on behalf of consumers and start-ups.
  6. Asks what legal authority provides the most effective path to an open Internet. While the NPRM relies on Section 706 as the source of authority, it seeks comment on whether Section 706 or Title II (or Title III) is most effective.

The sixth point addresses one of the most controversial issues in the wake of the D.C. Circuit’s ruling. Title II reclassification may be the most effective way to ensure that anti-blocking and anti-discrimination rules are permitted. The D.C. Circuit suggested that such rules, particularly with respect to anti-discrimination, looked like “common carrier” rules that are only permitted under Title II. Commissioner Wheeler previously stated his preference to continue under Section 706 authority, while making clear that all options remained on the table.

After the general overview of the NPRM, each commissioner made a statement.

Commissioner Clyburn

Commissioner Clyburn stated her belief that all content should be treated equally and that small startups should have equal footing as large entities. She said that without the open Internet, providers would be free to block or discriminate, noting that as a result of the D.C. Circuit’s ruling, no enforceable rules remain.

Clyburn mentioned specific calls and letters that she received from the public regarding the issue of net neutrality, including concerns from educators. She noted that many comments expressed concerns that the lack of enforceable rules to ensure an open Internet would lead to a stifling of free speech.

Clyburn noted that in Europe, which has not had the same protections, content has been degraded and apps have been blocked. She noted that even in the U.S., apps are blocked by wireless providers.

Finally, Clyburn stated that she had significant concerns about Chairman Wheeler’s initial proposal, but that proposal changed significantly over the past several weeks and included some of the changes that she requested.

Commissioner Rosenworcel

Commissioner Rosenworcel stated that she supported an open Internet, but that she would have handled the process differently. She expressed her opinion that the current process moved too quickly and the FCC should have taken more time to better understand the Internet and seek public input.

Rosenworcel praised the Internet economy in the U.S., calling it the “envy of the world.” She also said that the Internet was the most dynamic platform for free speech ever created and that it promotes our essential values.

Rosenworcel called for the FCC to ensure that going forward, new rules honor transparency, do not allow blocking, and do not permit unreasonable discrimination. She specifically advocated against a two-tiered system, saying that dividing the Internet into fast lanes and slow lanes was unacceptable.

She also spoke positively of the Chairman’s changes to the proposal, including seeking comments to expand the scope of the rules and keeping all options on the table, including Title II reclassification.

Commissioner Pai

Commissioner Pai argued that the FCC was not the appropriate venue for creating rules to govern the Internet, stating that we should be wary of five unelected officials deciding the fate of the Internet. Instead, Pai recommended that the FCC should seek guidance from Congress on this issue. He stated that this issue should be decided by elected representatives who are held accountable by the public, expressing his disappointment that the FCC did not turn the issue over to Congress.

Pai noted that there is bipartisan consensus in favor of a free and open Internet and he is committed to protecting the “four Internet freedoms” of freedom to: access to lawful content, use applications, attach personal devices to their connections, and obtain service plan information.

He argued against Title II reclassification, stating that he agreed with President Clinton that it was inappropriate and would not allow growth of the Internet. Pai also stated that the Internet must be free from government control, asking if we want “smart networks or dumb pipes.”

Pai agreed with Commissioner Rosenworcel that the process was rushed and advocated for a better process moving forward. He said that any rules should be based on sound economics and engineering. Pai suggested that the FCC should ask ten distinguished economists, with each commissioner selecting two, to conduct studies regarding the Internet and growth, and that these studies should then be peer-reviewed and subject to a series of hearings. He also suggested that the FCC should also engage with computer scientists and technologists whose studies should similarly be subjected to peer-review and hearings.

Commissioner O’Rielly

Commissioner O’Rielly stated that the NPRM was based on a “faulty foundation” and “make-believe statutory authority,” arguing heavily against the reliance on Section 706. He suggested that, despite the D.C. Circuit’s ruling, Congress never intended Section 706 to be an affirmative grant of authority and that the language actually supports deregulation.

O’Rielly called the proposal “absurd” and stated that reclassification under Title II would bring back the monopoly era telephone rules to impose “defective” net neutrality rules. He said that Title II represented arcane provisions and an inappropriate framework. He also said that he worried about the credibility of an agency that appeared to be open to such obsolete rules.

O’Rielly questioned the evidence of any specific market failure that needed to be addressed. He said that some have pointed to bad conduct outside of the U.S., but have not shown how it has harmed actions in the U.S.

He also asserted that prioritization is important and even the strongest supporters of net neutrality concede that we must prioritize voice over e-mail and have reasonable network management.

O’Rielly argued that the proposal was not narrowly tailored, would stifle innovation and provide no help to consumers.

Chairman Wheeler

Chairman Wheeler concluded with a statement of his own, asserting from the outset that the FCC supports an open Internet. He said that there is only one Internet, and that it is not a fast Internet or a slow one, but rather, a single Internet.

Wheeler pointed to the D.C. Circuit’s opinion, which observed that there was “little dispute” that broadband providers can distinguish and discriminate. He pointed to examples of abuses from individual cases, including mobile services denying apps.

Wheeler stated that the NPRM starts an important process. He said that it begins with the simple and obvious premise that protecting an open Internet is important for consumers and economic growth. He emphasized that what we are dealing with today is a proposal and not a final rule.

Addressing criticisms of the proposal, he stated that nothing in the proposal would authorize paid prioritization and expressed his displeasure over the idea of having fast lanes which would break the Internet down into haves and have-nots. He noted that the NPRM asks whether and how to prevent paid prioritization.

Wheeler emphasized that the Internet needs to maintain a level playing field to allow for new ideas, small companies and startups to flourish. He said that the prospect of a gatekeeper on the Internet, which chooses winners and losers is unacceptable.

Wheeler stated that it would be commercially unreasonable for a broadband provider to not provide for the contracted pathway. Giving specific examples, he noted that it would not be commercially reasonable if a slower speed than the one the consumer purchased is provided, if a provider blocks content, or if the provider requires the consumer to pay for bandwidth that has already paid for. He said that consumers must have full connectivity.

Wheeler also highlighted two specific aspects of the NPRM, which include an enhanced transparency rule and the creation of an ombudsperson for those that cannot afford a lawyer.

Wheeler explained that he intended to use Section 706 authority because this authority was upheld by the D.C. Circuit and he believed that it provided a quicker roadmap to get rules in place. He noted, however, that it is just one of two primary avenues to reach the goal of preserving an open Internet and that the FCC was also seeking input on Title II reclassification. He concluded that he was looking forward to receiving public feedback and the issue is not about whether the Internet must be open, but rather, about how and when we will have these rules.

Conclusion

The NPRM passed by a vote of 3-2. Chairman Wheeler and Commissioner Clyburn voted in favor of the Notice of Proposed Rulemaking. Commissioner Rosenworcel concurred. Commissioners Pai and O’Rielly dissented.

Comments from the public are due on July 15, 2014.

The FCC press release on this NPRM is available here.

USA FREEDOM Act Passed Unanimously Through House Judiciary Committee and House Permanent Select Committee on Intelligence

Last week, the House Judiciary Committee and the House Permanent Select Committee on Intelligence unanimously passed the USA FREEDOM Act (H.R. 3361). The bill, originally proposed by Rep. Sensenbrenner (R-WI) in October 2013, had 151 co-sponsors and an identical version was introduced in the Senate by Sen. Leahy (D-VT). Some of the language of the original bill was altered by a Manager’s Amendment just prior to the Judiciary Committee’s markup. Previous coverage of the USA FREEDOM Act is available here.

The USA FREEDOM Act, as amended and passed through the Judiciary Committee**, would make the following key changes and clarifications to the USA PATRIOT Act, among others:

  • Prohibits bulk collection of telephone records under Section 215, also known as the “business records” or “library records” provision.
  • Requires a statement of facts demonstrating that there are reasonable grounds to believe that call detail records requested under Section 215 are relevant to an authorized investigation and that “there are facts giving rise to a reasonable articulable suspicion that such specific selection term is associated with a foreign power or agent of a foreign power.” Specific selection term is defined as a term “to uniquely describe a person, entity or account.” The version of the USA FREEDOM Act as introduced did not include the limitation to specific selection term as the basis of a records request and therefore creates a stronger prohibition against collections of records generally.
  • Limits the definition of call detail records for collection under Section 215 to originating and terminating phone numbers and call duration. The definition explicitly excludes communications content, subscriber information, and cell site location.
  • Permits an order authorizing production of records for two “hops,” that is for the records of the person targeted as well as the call detail records of those in contact with the person targeted and those in contact with those contacts.
  • Prohibits the bulk collection of tangible things under Section 215 by requiring inclusion of “a specific selection term to be used as the basis for the production.”
  • Requires specific selection term for the basis of production where a pen register, a device that records all numbers called from a particular telephone line, is used.
  • Prohibits using Section 702, which is designed to permit targeting a non-U.S. person, if “a purpose” is to target the communications of a U.S person. This portion of the bill as passed by the House Judiciary Committee is not as strong as the original version, which prohibited backdoor searches of U.S. communications.
  • Creates the role of amicus curiae in the FISA court, unless the court finds that such an appointment is not appropriate. Under the version of the bill originally introduced, rather than having the court appoint amicus curiae, the bill intended to create an Office of the Special Advocate to advocate on behalf of interpretations protecting privacy rights and civil liberties and would be able to appeal FISA court decisions.
  • Requires the attorney general to conduct a declassification review of FISA court decisions and orders that include a “significant construction of law” and make them publicly available to the greatest extent possible. Where declassification would endanger national security, the bill would direct the attorney general to provide an unclassified summary.
  • Harmonizes the Section 215 reforms with national security letter reform.
  • Permits companies receiving surveillance orders to publicly report on the numbers of orders received and numbers of users/accounts subject to the orders.

**The discussions in this blog referring to the USA FREEDOM Act refer to the version passed by the House Judiciary Committee and House Permanent Select Committee on Intelligence last week. This version included the change made by the Manager’s Amendment and markup in the House Judiciary Committee. However, the version first introduced by Rep. Sensenbrenner is identical to the version introduced by Sen. Leahy and this original version of the bill remains in the Senate.

Aspen Doesn’t Want You to Own Your Own Casebooks

Here’s a new assault on the first sale doctrine by Aspen Publishers:

via The Laboratorium

In brief, students, will be required to “buy” a Connected Casebook, which consists of two pieces. First, there is “lifetime access” to a digital version of the casebook, together with various supplementary materials. Second, there is a bound physical version of the casebook, which students can highlight and mark up freely, “but which must be returned to us at the conclusion of the class.”

The obvious goal is to dry up the used book market by draining the supply of used copies. But as Josh points out, it seems unlikely that every student will return the physical book. Rather, reading between the lines, Aspen may argue that the physical book is “licensed” rather than “sold” under the reasoning of cases like Vernor v. Autodesk. The result would be that first sale (the right of the owner of a book, or a DVD, or any other copy of a copyrighted work to resell it freely) would never attach, since the students wouldn’t be “owners” of their physical copies. If Stan Second-Year sells his copy of the new Dukeminier to Fran First-Year, he’d be a copyright infringer in the eyes of Aspen. So too might be Half.com or Barnes and Noble, if they participated in the transaction. Just to make sure that students know they’re only borrowing Aspen’s books and “agree” to those terms, it appears, students will have to purchase Connected Casebook access through Aspen’s website or a participating campus bookstore

White House Report to President Obama on Big Data

On May 1, 2014, a report by Administration officials to President Obama on big data was released. The report was signed by John Podesta, Counselor to the President; Penny Pritzker, Secretary of Commerce; Ernest J. Moniz, Secretary of Energy; John Holdren, Director of the Office of Science & Technology Policy; and Jeffrey Zients, Director of the National Economic Council. The report is the result of a ninety-day study by the review group, convened at the request of President Obama at a January 17 speech at the Justice Department.

The report discusses some of the concerns and challenges with respect to big data and ultimately makes several recommendations. The report is broken into six parts: 1) Big Data and the Individual; 2) Obama Administration’s Approach to Open Data and Privacy; 3) Public Sector Management of Data; 4) Private Sector Management of Data; 5) Policy Framework for Big Data; and 6) Conclusions and Recommendations. Highlights from the report, including are included below.

Big Data and Education
One portion of the report specifically focuses on big data and education, recognizing the wide range of technology and platforms used at all levels of education. The report notes that new technologies allow institutions to personalize education and improve learning, but also raise concerns regarding student privacy. For example, the report states that:

Data from a student’s experience in massive open online courses (MOOCs) or other technology-based learning platforms can be precisely tracked, opening the door to understanding how students move through a learning trajectory with greater fidelity, and at greater scale, than traditional education research is able to achieve. This includes gaining insight into student access of learning activities, measuring optimal practice periods for meeting different learning objectives, creating pathways through material for different learning approaches, and using that information to help students who are struggling in similar ways. [… ]

The big data revolution in education also raises serious questions about how best to protect student privacy as technology reaches further into the classroom. While states and local communities have traditionally played the dominant role in providing education, much of the software that supports online learning tools and courses is provided by for-profit firms. This raises complicated questions about who owns the data streams coming off online education platforms and how they can be used. Applying privacy safeguards like the Family Educational Rights and Privacy Act, the Protection of Pupil Rights Amendment, or the Children’s Online Privacy Protection Act to educational records can create unique challenges.

The report further notes that user information from education platforms “can be very personal” and that the U.S. Department of Education released guidelines for online educational services in February 2014. These guidelines highlight the importance of compliance with FERPA when entering into agreements with third parties regarding student data. The report concludes that “The Administration is committed to vigorously pursuing these questions and will work through the Department of Education so that all students can experience the benefits of big data innovations and teaching and learning while being protected from potential harms.”

Privacy and Law Enforcement
The report also recognizes that while big data can be a useful tool for law enforcement and security, “they also pose difficult questions about their appropriate uses.” Big data can be used to better understand criminal organizations through pattern analysis, but gathering of such data can also include information about individuals not subject to investigation. It also cautions that use of predictive technologies, while potentially useful in anticipating and preventing crimes, is controversial. It is therefore necessary to balance civil liberties and privacy interests with law enforcement goals.

Data Held by Third Parties
The big data report summarizes Fourth Amendment case law, particularly with respect to data held by third parties. It cites the seminal Supreme Court cases from the 1970s in United States v. Miller and Smith v. Maryland, both of which held that an individual does not have a legitimate expectation of privacy in information voluntarily turned over to third parties, also known as the “third party doctrine.”

In light of Supreme Court jurisprudence in this area, Congress enacted the Privacy Act of 1974, the Electronic Communications Privacy Act of 1986 (ECPA) and the Pen/Trap Act, which provide statutory protection for records held by third parties. However, these pieces of legislation may be seen as outdated and, “In light of technological advances, especially the creation of exponentially more electronic records about personal interactions, some commentators have called for a reexamination of third-party doctrine.” The report notes that the Court of Appeals for the Sixth Circuit ruled in United States v. Warshak that a subscriber has a reasonable expectation of privacy in his e-mail, analogous to a letter or phone call that would be protected. Similarly, in the recent Supreme Court case, United States v. Jones, Justice Sotomayor wrote a concurrence expressing the concern that the third-party doctrine may be “ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

The report notes that while post-Warshak, warrants are required for content, metadata is being collected and obtained under the third-party doctrine and suggests that examination of the metadata issue, even beyond intelligence activities, should be expanded.

The authors of the report recognize that evolving technologies have created a need to re-evaluate current practices:

ECPA was originally passed in 1986. It has served to protect the privacy of individuals’ stored communications. But with time, some of the lines drawn by statute have become outdated and no longer reflect ways in which we use technology today. In considering how to update the Act, there are a variety of interests at stake, including privacy interests and the need for law enforcement and civil enforcement agencies to protect public safety and enforce criminal and civil law. Email, text messaging, and other private digital communications have become the principal means of personal correspondence and the cloud is increasingly used to store individuals’ files. They should receive commensurate protections.

Similarly, many protections afforded to metadata were calibrated for a time that predated the rise of personal computers, the Internet, mobile phones, and cloud computing. No one imagined then that the traces of digital data left today as a matter of routine can be reassembled to reveal intimate personal details. Today, most law enforcement uses of metadata are still rooted in the “small data world”, such as identifying phone numbers called by a criminal suspect. In the future, metadata that is part of the “big data” world will be increasingly relevant to investigations, raising the question of what protections it should be granted.

The report also acknowledges the challenge that “once data is collected, it can be very difficult to keep anonymous.”

Conclusions and Recommendations

The authors of the report conclude by making six policy recommendations:

  1. Advance the Consumer Privacy Bill of Rights. The Department of Commerce should take appropriate consultative steps to seek stakeholder and public comment on big data developments and how they impact the Consumer Privacy Bill of Rights and then devise draft legislative text for consideration by stakeholders and submission by the President to Congress.
  2. Pass National Data Breach Legislation. Congress should pass legislation that provides for a single national data breach standard along the lines of the Administration’s May 201 Cybersecurity legislative proposal.
  3. Extend Privacy Protections to non-U.S. Persons. The Office of Management and Budget should work with departments and agencies to apply the Privacy Act of 1974 to non-U.S. persons where practicable, or to establish alternative privacy policies that apply appropriate and meaningful protections to personal information regardless of a person’s nationality
  4. Ensure Data Collected on Students in School is Used for Educational Purposes. The federal government must ensure that privacy regulations protect students against having their data being shared or used inappropriately, especially when the data is gathered in an educational context.
  5. Expand Technical Expertise to Stop Discrimination. The federal government’s lead civil rights and consumer protection agencies should expand their technical expertise to be able to identify practices and outcomes facilitated by big data analytics that have a discriminatory impact on protected classes, and develop a plan for investigating and resolving violations of law.
  6. Amend the Electronic Communications Privacy Act. Congress should amend ECPA. To ensure the standard of protection for online, digital content is consistent with that afforded in the physical world—including by removing archaic distinctions between email left unread or over a certain age.

ARL Joins Amicus Brief in Garcia v. Google Copyright Case

On Friday, April 11, 2014, the Association of Research Libraries (ARL), along with the American Library Association, Association of College and Research Libraries, and other organizations, joined an amicus brief authored by the Electronic Frontier Foundation in Garcia v. Google. The brief urges the US Court of Appeals for the Ninth Circuit to reconsider its decision in this copyright case in which a 2-1 panel ruled in favor of Cindy Lee Garcia, one of the actors in the film Innocence of Muslims. Garcia claimed a copyright interest in her performance after being tricked into appearing in a five-second clip of the film and subsequently sought takedown of the film from YouTube, which is owned by Google.

The decision by the three-judge panel raises serious concerns as it alters the traditional contours of copyright and impacts the future of online free speech. The brief urges the Ninth Circuit to rehear this case en banc, so that the full court may reconsider these important issues.

Supplemental Testimony of James G. Neal on Preservation and Reuse Endorsed by Library Copyright Alliance (LCA)

One week after testifying before the House Committee on the Judiciary Subcommittee on Courts, Intellectual Property and the Internet during the Hearing on Preservation and Reuse of Copyrighted Works, James G. Neal of Columbia University in New York City submitted supplemental testimony to address questions raised during the hearing and expand on his earlier written statement. The supplemental testimony addresses five issues: collective licensing, contractual restrictions on copyright exceptions, preservation of born-digital materials, the cost of preservation, and community fair use best practices. The Library Copyright Alliance has endorsed the supplemental statement.

Collective Licensing

The supplemental testimony noted that collective rights’ organizations (CROs) often represent problematic models that fail to pay artists and authors the revenues they earned and cautions against relying on such models as solutions, particularly with respect to preservation, mass digitization and orphan works. CROs have had a history of corruption, mismanagement, lack of transparency, among other issues. The statement pointed to two specific examples of problematic behavior of CROs. The first example is that the Copyright Clearance Center (CCC) has used fees it collected from research and academic libraries to sue Georgia State University over the use of books written by academics in an e-reserves case. The second example is the Educational Rights Collective Canada that, in fifteen years of operation, has failed to distribute any royalties to authors but is $830,000 in debt.

Contractual Restrictions on Copyright Exceptions

The supplemental testimony expanded on Neal’s oral testimony with respect to ensuring that contractual provisions do not circumvent the exceptions in the Copyright Act. The testimony noted that in licensing electronic resources, publishers often include terms that restrict the fair use right, library exceptions and first sale doctrine. It also pointed out that restricting such contractual provisions exists in numerous areas, both domestically and in foreign jurisdictions. Neal concluded “As part of its review of the Copyright Act, the Subcommittee should assess the adverse impact of the potential replacement of the public law of copyright with the private law of contract, both on libraries and the public at large. I believe that Congress should adopt restrictions on the enforcement of contractual terms that attempt to limit exceptions in the Copyright Act such as first sale, fair use or interlibrary loan under Section 108.”

Preservation of Born-Digital Materials

Neal’s supplemental testimony expanded on his oral testimony regarding the need to preserve born-digital materials. The supplemental statement pointed to studies that reveal that digital materials are also subject to risk of loss, corruption and destruction. It noted also the issue of website archiving and importance of digital preservation in order to address the problem of “link rot” and preserve the cultural heritage expressed through websites. Neal asserted that it is “essential” to rely on fair use to preserve linked references.

Cost of Preservation

Responding to a question from a member of the Judiciary Committee concerning the cost of preservation and access, Neal expanded on creative solutions to address preservation efforts, noting that HathiTrust and the Digital Preservation Network represent cooperative, shared infrastructure models that avoid unnecessary duplication and can reduce overall costs of preservation. The supplemental statement also noted that while it would have taken the University of Michigan 1,000 years to digitize its collection of books, Google’s assistance has allowed it to already largely complete the digitization effort.

Community Fair Use Best Practices

The final section of Neal’s supplemental testimony endorsed the development of fair use best practices and includes a copy of ARL’s Code of Best Practices in Fair Use for Academic and Research Libraries.

House Judiciary Subcommittee Hearing on Preservation and Reuse of Copyrighted Works; Testimony of James Neal, Endorsed by LCA

On Wednesday, April 2, 2014, the House Committee on the Judiciary, Subcommittee on Courts, Intellectual Property and the Internet continued its copyright review. This hearing focused on “Preservation and Reuse of Copyrighted Works” with six panelists: Mr. Gregory Lukow (Chief, Packard Campus for Audio Visual Conservation, Library of Congress); Mr. Richard Rudick (Co-Chair, Section 108 Study Group); Mr. James Neal (Vice President for Information Services and University Librarian, Columbia University); Ms. Jan Constantine (General Counsel, The Authors Guild); Mr. Michael C. Donaldson (Partner, Donaldson + Callif, LLP, on behalf of Film Independent and International Documentary Association); and Mr. Jeffry Sedlik (President and Chief Executive Officer, PLUS Coalition). Written testimony from each witness is available here.

Neal’s statement, endorsed by the Library Copyright Alliance (LCA), provides that the “overarching point is that the existing statutory framework, which combines the specific library exceptions in Section 108 with the flexible fair use right, works well for libraries, and does not require amendment.” In reaching this point, the written statement goes through four issues: 1) the importance of library preservation; 2) how the library exceptions under Section 108 supplement rather than supplant fair use; 3) the diminished need for orphan works legislation; and 4) perspective on the HathiTrust case.

Library Preservation

The written testimony emphasize that providing access to collections of preserved materials is a critical part of libraries’ missions. It notes that with the digital age and new technology, new challenges for preservation have emerged to ensure that new media, which represent a substantial part of the cultural record, are adequately preserved. Neal’s statement gives several examples from his experience at Columbia emphasizing the need to format shift and preserve materials in different formats, including content that existed on short-lived websites. The statement further notes that in order to achieve this mission, libraries “require robust applications of flexible exceptions such as fair use so that copyright technicalities do not interfere with their preservation mission.”

Relationship Between Section 108 and Fair Use

The statement points to the privileged status of libraries throughout the Copyright Act, with seven specific examples. For example, the statement notes that Section 504(c)(2) shields libraries from statutory damages where the library reasonably believed their activity constituted fair use. Section 12014(b) excludes libraries from criminal liability under the DMCA. And, of course, Section 108 provides libraries and archives with a clear set of exceptions for certain activities.

The written testimony emphasizes that Section 108 does not represent the totality of exceptions and limitations from which libraries may benefit, as the Authors Guild initially argued in HathiTrust, and that fair use, amongst other exceptions, may also be relied upon. Without being able to rely on fair use and other exceptions that exist in other sections of the Copyright Act, libraries, including the Library of Congress, would be considered serial infringers. Further, Section 108(f)(4) clearly and unambiguously provides that nothing in Section 108 “in any way affects the right of fair use” and the legislative history supports the meaning of the plain language of the statute. Scholars and case law similarly support this clear reading of the interplay between Section 108 and Section 107.

Furthermore, fair use sufficiently updates Section 108 and it is therefore unnecessary to make legislative changes to Section 108. Neal notes that, as a member of the Section 108 study group, a report was issued after three contentious years, reflected only a high level agreement, and did not resolve many important issues because of the lack of agreement. The statement highlights a concern that some of the Study Group’s recommendation could limit what libraries do today. This section of the statement concludes, “The fact that Section 108 may reflect a pre-digital environment does not mean it is obsolete. It provides libraries and archives with important certainty with respect to the activities it covers. Furthermore, Section 108 provides courts with importance guidance concerning the application of Section 107.”

Orphan Works

The statement also notes that from Neal’s perspective and of LCA’s, orphan works legislation is no longer necessary because the “gatekeeper” problem has diminished due to greater certainty regarding fair use, including recent jurisprudence in this area in a wide range of cases. Furthermore, the Code of Best Practices has provided reassurances with respect to orphan works in a special collection as well as digitizing and making available materials in special collections. In addition to fair use developments, there is less likelihood that injunctions will be issued since the Supreme Court’s 2007 ruling in eBay v. MercExchange which changed the presumptions regarding injunctions in cases of infringement. Furthermore, mass digitization has become more common. In addition to these developments, the clear disagreement over an orphan works solution suggests that a legislative solution regarding orphan works, mass digitization or Section 108 will be very difficult if not impossible.

HathiTrust

The fourth section of the statement explains the HathiTrust project and discusses the litigation initiated by The Authors Guild. The statement goes into Judge Baer’s district court decision in detail and expresses the “hope that the Second Circuit will agree with Judge Baer that HDL (HathiTrust Digital Library) preserves important works, allows them to be searched, and provides access to the print disabled, without causing any economic harm to rights holders.

Orphan Works/Mass Digitization Roundtables: Copyright and Fair Use Myths and Realities

During the orphan works roundtables, several participants attacked fair use and libraries, misstated the purpose of the copyright system in the United States, or inaccurately portrayed the activities of HathiTrust. Here are just some of the misconceptions or myths cited at the roundtable and responses to these inaccuracies:

Myth 1: Fair use is too uncertain

Some advocates of a legislative orphan works solution argued that legislation is necessary because fair use is too uncertain or unpredictable.

Reality: Fair use is a fairly predictable doctrine

Fair use is actually fairly predictable. Professor Pamela Samuelson wrote an article in 2009 entitled, Unbundling Fair Uses which concluded that “Fair use is both more coherent and more predictable than many commentators have perceived once one recognizes that fair use cases fall into common patterns.” In fact, the Australian Law Reform Commission (ALRC) pointed to this very article when proposing that Australia adopt a fair use provision. The ALRC went on to note that fair use factors can represent “a clear principled standard [that] is more certain than an unclear complex rule.” In recent testimony before the House Judiciary Committee Subcommittee on Courts, Intellectual Property and the Internet, Professor Peter Jaszi (American University) similarly stated that fair use jurisprudence is predictable and coherent.

Myth 2: Recent fair use jurisprudence consumes Section 108 and renders the provision meaningless

Some have argued that applying fair use to activities not explicitly permitted under Section 108 makes this specific limitation, as well as others that libraries rely on, meaningless. They also suggest that fair use goes too far when applied where Section 108 does not apply.

Reality: Section 108(f)(4) includes an explicit savings clause that fair use still applies

Section 108(f)(4) provides that “Nothing in this section—in any way affects the rights of fair use as provided by section 107…” The plain language of the statute could not be any more clear: “Nothing … in any way affects the rights of fair use.” It is obvious that fair use applies even where a specific limitation or exception codified under Section 108 does not, subject of course to evaluation of the four fair use factors. Some argue against the plain language by asking what the purpose of Section 108 is if libraries can simply rely on the fair use provision of Section 107. Explicit limitations and exceptions can be beneficial in providing certainty for certain activities, particularly for those that are risk adverse, or apply where fair use might not. Libraries rely on a mix of purpose specific limitations and exceptions as well as fair use in order to achieve their public service mission and respond to evolving technology.

Myth 3: Fair use being used as an excuse by the library community to perform activities not covered by specific limitations or exceptions

Several participants claimed that fair use was just an excuse being used by the library community where specific limitations do not exist. Others argued that fair use has gone too far and has made copyright the exception to fair use.

Reality: Libraries are a conscientious and risk adverse community. Fair use is being used after careful thought and based on solid legal footing

Although there are numerous purpose specific limitations and exceptions that libraries rely upon, they do not cover every situation and fair use has long been relied upon where specific exceptions do not exist. Libraries are not pirates, but rather, are trusted institutions serving a public mission to provide access to knowledge and culture within the boundaries of the law.

The Code of Best Practices in Fair Use for Academic and Research Libraries notes that “how judges have interpreted fair use affects the community’s ability to employ fair use.” The practices of libraries are grounded in court decisions and judicial interpretations of the fair use doctrine.

Myth 4: Fair use clearly prohibits any uses that have an effect on the market

One commentator at the orphan works roundtable repeatedly argued that relying on fair use for any uses that have an affect on the market violates copyright law and is an infringement of a creator’s rights.

Reality: Fair use is a flexible standard and all four factors are considered together

Fair use is not designed to require satisfaction of all four statutory factors, but instead are considered together. The four factors include: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value for the copyrighted work.

The Supreme Court has explicitly stated that the factors are not to “be treated in isolation from one another. All are to be explored and weighed together, in light of copyright’s purpose” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). Following this line of reasoning, circuit courts have confirmed that a defendant does not need to prevail on each of the four factors in order to successfully rely on fair use.

Myth 5: Copyright’s primary purpose is free expression and not to promote the public benefit

A disagreement broke out during one of the panels, with one person arguing that there is no legal basis for the argument that copyright’s primary purpose is to promote the public benefit.

Reality: The Constitution clearly states that the purpose of the intellectual property system is to “promote the progress of science of the useful arts” and the Supreme Court has repeatedly pointed to the importance of the public interest

Article 1, Section 8, Clause 8 of the U.S. Constitution sets forth the constitutional rationale for the intellectual property system: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The Supreme Court has repeatedly noted that this clause is both a grant of power and a limitation for Congress.

In Sony Corp. of America v. Universal City Studios, the Court cited past precedent dating back to 1932 that “The copyright law, like the patent statutes makes reward to the owner a secondary consideration” and that “The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors” (emphasis added). Additionally, the Supreme Court noted that “The immediate effect of our copyright law is to secure a fair return for an ‘author’s creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good” (emphasis added).

Additionally, fair use is an important limitation to copyright and has been upheld by the Supreme Court as a “First Amendment safeguard.”

Myth 6: Best practices in fair use are a contemporary/recent standard and not known by creators

One participant discounted the value of best practices because they have only been developed recently and have not withstood the test of time. Another suggested that the communities themselves did not create these best practices.

Reality: While many codes of best practices are recent, these practices contained within the codes have been used prior to being collected in a code

Codes of best practices do not appear out of thin air. The Code of Best Practices in Fair Use for Academic and Research Libraries, for example, was created in consultation with 150 research and academic librarians across the country. The Code of Best Practices draws upon the experiences of academic and research librarians and is a compilation of their best practices. Although not every librarian might agree with every principle, limitation or enhancement, as pointed out during the roundtable by one of the principal authors of this Code, Brandon Butler, such librarians are in the minority. While the aggregation of these best practices into a single document may have occurred recently, the practices themselves are not new to many libraries.

Myth 7: Digitization without authorization is not fair use. Other than the district courts in HathiTrust and Georgia State, courts have not approved of these types of activities.

Some participants discounted the district court decisions in HathiTrust and Georgia State University, noting that these cases were still in their first round and that circuit courts had yet to decide the case. Others stated that other than these two district courts, no courts have approved of these activities as fair use

Reality: Numerous circuits have upheld mirror image copies as transformative and applied fair use

Although HathiTrust and Georgia State University do involve new issues of mass digitization, several circuit courts have addressed whether mirror image or exact copying is fair use, finding that transformative copies are protected by fair use. The Fourth Circuit in A.V. v. iParadigms, for example found that using student papers to create a plagiarism database was protected under fair use. Similarly, in Perfect 10, Inc. v. Amazon as well as Kelly v. Arriba Soft Corp., the Ninth Circuit found that using website images to create a search index constituted fair use. Likewise, the Second Circuit upheld fair use in Bill Graham Archives v. Dorling Kindersley for the use of concert posters in a book. These cases provided a solid basis for the HathiTrust _and _Georgia State University decisions and suggestions that the district courts went rogue and circuits have not approved of these types of activities are incorrect; circuit after circuit has upheld mirror image copying as fair use. While it is true that both HathiTrust and Georgia State University are on appeal, there are strong legal arguments supporting the application of fair use to mass digitization in these cases.