April 2008 Archives

Public Knowledge (who works tirelessly on behalf of documentary filmmakers) announced on Thursday that two bills addressing orphan works had been introduced: Orphan Works 2008: House and Senate Bills Introduced. As usual, I urge you to read the bills. Public Knowledge has links to both of them. And read Public Knowledge's assessment. You're not going to get their type of assessment here. They thank the Congressional committees, they look forward to working on the bills. They seem realistic in their assessment of the differences between the two, noting the relatively "clean" Senate version and the House version's including many additional provisions that go much further in addressing the concerns of those copyright owners who view orphan works legislation as quite detrimental to their interests. But near the end of their observations they note that

[Visual artists will] try to add more exceptions and carve-outs as poison pills so users will have no use for the legislation. We hope that doesn't happen ...

Hmmm. I think the bill has already been poisoned. DOA. Too late even for last rites.

The House version of the bill is so burdensome I would much prefer just to rely on fair use, even with all its uncertainty, than to know for certain that the burden for each and every use is so extremely high, and likely very expensive to carry out (probably costing considerably more than reasonable compensation would have cost if there had been an owner to pay it to). The bill seems intentionally designed to discourage use, not to encourage it. (I can hear the "yes!" responses from orphan works legislation opponents.) Since we already have plenty of discouragement in the form of draconian remedies, I can only conclude that the architects of this bill were in fact worried that people might actually proceed with uses of orphan works if there were no bill. Ok. I've got my "horrible cynic" hat on now.

Basically, the House bill appears to take the position that there is likely to be an owner who will turn up, and all the proof that you tried your best to find them has to be assembled, certified, and all the groundwork for the impending litigation laid, ahead of time. If that's not pretty poisonous, I don't know what is. But wait there's more.

If the pre-use litigation-oriented requirements are not, in the abstract, enough of a deterrent, there is the opportunity for the industries themselves to erect barriers to use so high that the burdensome statutory requirements will seem like a walk in the park. They have the privilege of defining the "best practices" that the CO will install as part of what users must follow to get the benefit of using a work that, contrary to rampant fears, no one likely exists who cares about or would object to its use.

This sort of reminds me of what happened to the NIH OA statute the first time around (3 years ago). We ended up with a voluntary request for posting publicly financed research results to PubMed Central, instead of a mandate, in response to fear. The voluntary approach completely failed (surprise!) to fulfill the objectives of the law, and eventually, when it was obvious to everyone, it still took a monumental fight to get a bill through Congress that was not dominated by those who were the most fearful. Copyright industry captains have been wrong a few times before about what they think change will do to their industries.

And this is only round one, as Public Knowledge notes. The House bill (and the relatively more realistic Senate version) is only going to get worse, not better. My advice: if you're waiting for legislation to deal with orphan works, do not hold your breath. You'll expire.

I have taken nearly a week to mull over this case that has been buzzing around the blogosphere, around email and even in real life, and I'm glad I did. I think I see it more clearly now than I did a week ago when the news first hit. I managed with a little time to connect it up with everything else in my life, well, my copyright life.

I guess it was reading Claire Stewart's post at the Northwestern University Library Blog (NUL Copyright: What does the lawsuit against Georgia State mean?) that pushed the last little piece into place. OA.

Yes. OA.

It all started at an AAUP/ARL Scholarly Publishing Symposium in the early 90's. I was lucky to be invited, and I made a speech about Texaco (the case) or something like that. I don't really have a lot of memories from this event (hearing Jean-Claude Guedon speak is one of them, however), but my memory of a conversation with Ann Okerson, now at Yale University, is still very fresh. The lead in must have been about market failure as the driver for fair use and she contrasted L. Ray Patterson's point of view, as expressed in his book, Copyright: A Law of Users' Rights. She talked about it fondly, but she agreed it wasn't the way things were, rather, it was how they ought to be.

Second piece: That idea of "how things ought to be" contrasting with "how they are" is a constant of fair use discussion because fair use is so open to interpretation. It can mean so many things. But we get our "how it is" meanings about fair use from the courts' interpretations. We have to draw that distinction, if we represent real clients, between how it could be or even should be, and how it is.

And that's what I've been doing for years as copyright counsel for the UT System. I'm grateful to have this task. It keeps me grounded. You have to know what your absolutely best arguments are, the law, and policy, but you also have to be realistic about the likelihood of winning those arguments, so your client can be realistic too, and make his or her risk assessment and go forward.

Which brings me to the third piece. Many people have spoken eloquently about why we as a society need to provide educators with a broader scope of fair use than just the "high transactions cost market failure" approach would allow for the kind of copying at issue in the suit against GSU. I rounded them up in an article I blogged at Lifelong learning a year or so ago. See for example, this section on Market Failure, and this one about market dysfunction. I can add Claire's comments to the list. I cannot believe that these arguments were not made on behalf of educational fair use in the cases about classroom and research copies. And they did not win the day. Maybe it was because of the profit aspect of the defendants in all those cases. Maybe the result would be different today with GSU a nonprofit educational institution as the defendant.

But my money is not on that proposition. And that brings me to my 4th piece. Losing in Congress and losing in courts -- happens all the time. Even when you win, you lose. The so-called compromises hashed out between stakeholders in congressional statutory marathon negotiation sessions read like some of the worst contracts I've ever had to review. And this is law for teachers and students to follow. Uh-huh. Right. All we've managed to effect with Congress is a stalemate. Oh, that's no small accomplishment. Keeping things from passing has become the best we can do. Think about that.

Many are optimistic about the string of fair use cases coming out of the "transformative" field lately, and I am too, but I don't think they offer the life saver to digital course materials distribution that others hope for. I don't think courts will go that far.

So, 5th piece: what's left if you really, really, really believe that educators ought to be able to use whatever they need to and want to use in their classrooms without worrying about what it costs or whether it's fair use?

Consumer resistance, or OA.

I don't have to advocate consumer resistance. We can get there without infringing people's copyrights. The very same arguments that Claire makes on behalf of educators and students being able to just read others works even if they can't afford to pay are turning the corner on OA for scholarly publishing. The battle for OA in journals is far from over, but the outcome is pretty clear. Now read anything about OA for the scholarly literature and substitute educational materials and see if you don't agree. It makes perfect sense. The same struggles the industry is going through to figure out how to make the economics of OA work for journals are going to come to monographs next and then why not educational publishing. If journals can figure out how to charge for other things besides digital copies, so can monographs, and monographs are, well, books with longer names. Books can be freely accessible without authorship, editing, peer review and distribution falling into the gutter. Do we know how right this minute? Maybe not. Is it impossible? Absolutely not. Do we need to figure it out? Absolutely. Will we. Absolutely.

Bill Patry draws our attention to a copyright case in the 9th Circuit's Southern District of California that addresses the liability of individuals in their individual capacity for infringement of copyright: The Patry Copyright Blog: State Sovereign Immunity and State Employees. His commentary, and the commentary to which he points at the Stanford Fair Use blog, both make the distinction which can be sort of confusing, that even though sovereign immunity protects individuals acting in their official capacity, when they have acted in a way that is illegal, they are going to get stripped of the character of "acting within official capacity," Basically, you can't be acting officially if you are breaking the law. It can't be the official act of the state to break the law. Isn't logic great?

So, the professor who was hired by his university to create a report takes the rap as the university pleads out (sovereign immunity). Bill and I don't see eye to eye on sovereign immunity (quite naturally as I've represented a state institution for the last 17 years and I'm pretty sensitive to the state's position on this matter), but I guess I do feel rather badly about the result in this case. It would be one thing if the faculty member were sort of rogue, acting on his own, But the university hired him to do this and directed him to make his report like the earlier one (that he is now alleged to have copied). There are all sorts of interesting questions in here about the role of education in risk management, about the level of understanding of copyright law among a university's top administrators, and about individual responsibility to say no to requests that we might question on legal grounds. Gives us all a lot to think about.

I often recommend Bill Patry's copyright blog and I sure hope I haven't worn out my ability to recommend his postings another time, because this one is really, really worth a read: The Patry Copyright Blog: Judge Posner's "How Judges Think".

It's a bit abstract, compared to some, and it's long (as Bill's posts usually are). Also, the first part of his review of Judge Posner's book is about things that, while interesting, are not the main focus of my post here. Because near the end, Patry covers Posner's getting at something that I've been trying to express for many years, and I've never managed to say it so effectively as Judge Posner (surprise!). This is one of the most well-known, respected judges sitting on the bench today, who has a publication history someone twice his age (were that possible) would be hard-pressed to match, so of course, he's eloquent.

But more importantly, he knows what he's talking about because he is a judge and he's been one for 27 years and when this pearl comes from him, it doesn't seem to need anything more to give it credibility.

It's the pragmatism thing. He says it right straight out.

The judge is wont to ask himself in such a case what outcome would be the more reasonable, the more sensible, bearing in mind the range of admissible considerations in deciding a case, which include but are not exhausted by statutory language, precedents, and the other conventional materials of judicial decision making, but also including common sense, policy preferences, and often much else besides. (page 207).

Patry continues his explanation of how Judge Posner thinks, referring to a case that Patry himself tried before Judge Posner:

... some, like Judge Posner try to figure out what is the most pragmatic result, guided by the factors he listed in the above quote, and then write an opinion that is straightforward in explaining why the result is the most pragmatic -- as compared to falsely pretending the result was dictated by an external force (e.g., the statute or precedent).

The Ty case is a great example of his approach: his opinion reads like a time-line of his thought processes, the end of which is - "oh yeah, there are these statutory factors in section 107, but they aren't helpful here."

It is nice to feel that something as difficult as fair use really does have at its heart, a reasonableness inquiry. Maybe that only punts the ball, after all, as Patry points out, his reasonableness argument in Bill Graham Archives v. Dorling Kindersly failed to carry the day. Reasonable minds can disagree about which result is most reasonable. But at least *that" is the inquiry with fair use, rather than a mechanical checking off of a selection of the facts that can be made to fit our case (whoever we are).

So, as I would argue, if you are ever in a position to try to win a fair use argument, if you aren't addressing why your result is the most reasonable, overall, the best for everyone, you aren't speaking the judge's language.

Well, at least not Judge Posner's language.