©ollectanea

I don't often lose sleep over copyright issues anymore. But last night I could not stop thinking about the Copyright Office's new resource for *children.* Please have a look if you haven't already: Taking the Mystery Out of Copyright. There's a text only version if you want to skip the cartoons and the music (assuming you are not 13). This bothers me on so many levels, but I'm only going to address one level here, the most obvious. My experienced, calm, collected voice is telling me to wait a few days before I write this. Ok, at least wait a few days before I publish it. Clearly, I am ignoring that voice. I should at least acknowledge that I'm probably overreacting. I no doubt will feel differently about it after I have thought about it for awhile. Maybe I'll write about it again after a few days.

That said, do children really need to know about copyright? Well, I reluctantly must admit that yes, they do. Should they need to know about copyright registration, copyright history, and the role copyright plays in protecting film, music, art and literature? Well, it's not like they need to be protected from this, like it was senseless death, war violence or something cruel and ugly. So, it is commendable that the Library of Congress offers a well-done, straightforward, and fairly neutral informational piece. What would we expect the Library to talk about, other than what it does, which is, in this case, copyright registration. A narrow slice of the copyright pie, to be sure, but again, that's one of the things the Library does that no one else does.

But on the other hand, remember what it was like to be 13? Was registering your copyrights something you were all that concerned about? Should you have been? Have things changed that much with respect to how likely it is that the metaphorical box of things you created during your 13th or 14th year of life needs protection? From what? From becoming part of the stream of creativity (my metaphors are all over the place) from which you yourself borrowed to create?

If I had one opportunity to tell kids about copyright, I suppose I would mention its role in protecting the commercial interests of creators and distributors like the film, music, art and publishing industries, but in the next breath I would appeal to their own sense of how most things we all create are not meant for commercial exploitation, but instead are meant to be shared, reused, remixed and borrowed from. I'd say, "Look inside that box of things you created last year. Let's look at where all your things came from. Let's see how borrowing and modifying and adding your own ideas works in real life, and what we all need to keep that going."

The lesson I would teach is about the fact that *YOU HAVE TO DO SOMETHING* if you want your own creativity to be added to and be a part of a flowing, lively stream, rather than be caught up in a little eddy that goes nowhere. Congress (something here about infinite wisdom) has created a set of rules that, without your doing anything beyond the mere act of creating (tangible things, of course), keeps everything you create in that box, locked away, maybe forever, but at least for, let's see, you're 13? Let's say you'll live to 78, your box of stuff stays locked away for the rest of your life (65 years) plus 70 more years. Yes, in 135 years your box of stuff will possibly join the stream of creativity. If the box is still around then. And somebody finds it. And they know you and only you created it, and when you died. And they know about copyrights. If that doesn't fit your idea of what you want, then YOU HAVE TO DO SOMETHING. You have to let people know that you have something else in mind for your box of stuff. Fade to Creative Commons logo/website.

The assumption that everything needs "protection" for 1 1/3 centuries is so out of step with the reality of how we all create and most importantly, *why* we all create (overwhelming, not to make a living from our creations), and the serious consequences of being out of step with reality makes me very sad, and angry. The waste, the untapped creativity, and the criminalizing of creativity cannot be defended in my opinion. One size does not fit all. Given the enormity of the explosion of creativity enabled by the networked environment, to say nothing of creativity in the real world, the lessons we need to teach are about taking responsibility to do individually what Congress cannot seem to do for us as a nation -- create a copyright that fits our widely divergent needs, rather than one that both stifles us creatively and turns us into criminals (or potential civil litigants -- there's another interesting copyright lesson for kids) if we ignore it. We need to tag our creative works with simple statements that express how we feel about their place in the creative stream. I would recommend Creative Commons licenses for many reasons, but any statement about sharing is better than doing nothing and thereby consigning your work to copyright's centuries-long holding bin, or perhaps appropriately named, wastebasket.

Last year I was not able to attend the CIP's annual conference, but I've caught quite a few of them over the years. This one is special for me, however, because as the Center's Virtual Scholar, I have had the honor of participating in the planning. Kim Bonner, the Center's Executive Director, is at the helm of the planning process and has put together a great lineup of events and speakers. At the top of the list is Jamie Boyle, Duke law professor and advocate of the public domain. I am looking forward to meeting him and hearing what he has to say.

I, too, am speaking at the conference. I plan to discuss an idea I am working on as a possible dissertation topic that fits well with this year's CIP theme: Copyright Monopoly.

The lineup is widely diverse, including speakers representing content industries (Copyright Alliance, CCC), law professors and practicing lawyers, librarians and lawyer librarians, and intermediaries like OCLC and Google, among others.

The conference also features a new format for day three -- a series of roundtable discussion groups focused on what you can take back home with you to put what you have learned into practice.

Hope to see you there!

So, at last, the cards are laid on the table and we see what everyone's holding. And guess who's got the winning hand! No surprise there. Google, by a landslide. (Whoops, my subconscious hopes for election day slipping in there...)

It is absolutely fascinating to finally get to see the musings begin, musings about what this major business deal means for the future: the future of publishing, the future of the book, the future of Google, the future of libraries, the future of education. Well, let me rephrase that: What the major business deal *could* mean for all of the above, and more. Oh, that is the fun part. Imagining the possibilities. Imagining the potential. I'm an optimist and a true believer in the triumph of a good idea, no, a great idea.

So, I want to point you to a couple of commentators that I think are especially exciting, illuminating, thoughtful. I have by no means scoured the blogosphere; rather, these are my heroes, my guideposts, the people I trust to present a point of view that adds value to the discussion:

Library Journal, quoting both blogs below plus several others; Vaidhyanathan's Googlization of Everything Blog; and Larry Lessig's Blog

And my own thoughts on and feelings about the deal are a combination of heartbreak, exhilaration, relief, pride, thankfulness, and gratitude to the libraries who worked so hard to make the deal a better one for the public interest. So it's finally out in the open and those who have been agonizing over it for up to two years can now be joined by the many, many others who are eager to begin to think through, together, what has changed, for whom, how, and what it means.

Heartbreak: It hit me really, really hard to realize that Google utilized fair use strategically to bring the publishers and authors to a deal. My heart was in strengthening fair use. It has been for a long, long time. I felt betrayed, really hurt. But damn it, Google was right. It is right. This deal is way better for everyone, more value, more possibility, more of everything. For fair use to cover digitizing for indexing would have been nice, but it would not have given us this (and there was the chance Google could have lost, though I firmly believed Google would have won). Maybe we could have had both. A S.Ct. win for Google might also have led to a deal, but at much greater expense, much later. Google clearly felt it wasn't worth it, strategically, to add that piece to the picture. What Google did, worked. I got over it.

Exhilaration: From my first reading of the deal, I saw amazing possibilities that just inspired me to no end (after the shock wore off, that is). I was in a semester in my PhD studies where I was trying to generate ideas for a dissertation topic and this deal just spun out possibilities like a tornado. But I couldn't talk about any of them with anyone. What a hellish place that was. The announcement of the settlement dragged on and on and on. The date was always a moving target. Eventually I stopped thinking about it all. I just gave up and moved on. But it is *so* gratifying to see such smart minds beginning to examine the same little gems of possibility, and now there will be lots of people to talk to about it, lots of research projects, and lots of thinking about the future of it all. Is that not absolutely exhilarating?

Relief: Thank God the NDA (nondisclosure agreement) is finished. I'll never sign one again. You get to know incredible things, be a part of incredible things, but you can't talk to anyone about it. I hate that.

Pride: I got to be a part of, a teeny, tiny, eensy, weensy part of, an unbelievably complex (way too complex for me) unfolding of a new way to share knowledge, the knowledge that is out there but that has been forgotten, or soon would be forgotten, if physical books on physical shelves were the only option we had for keeping it alive and integrated into our social and cultural lives. I got to react and say what I liked and didn't like. At least a few people listened. Maybe I made some difference. Maybe not much, maybe not any. But it was really wonderful to be there. (Cf. paragraph on Relief -- legalese for compare for a contrast, or contradiction, the paragraph above on Relief where I say pretty much that it wasn't worth the agony of the nondisclosure agreement -- I guess I'm torn about that.)

Thankfulness: I decided to move on with my studies, as I mentioned above. I am thankful that this deal is finally out on the table and it will become what it becomes (not, what it could be, but what it will be).

Gratitude: I know first-hand that it was extremely difficult for the libraries who put tremendous effort into making the deal better reflect the public interest. I was only involved for 10 months. Harvard, UC, Stanford and Michigan were involved for almost 2 years. Virginia got involved only a few months ago, but pitched right in and went to work. Others followed over the summer and early fall. It was grueling to receive those drafts, repeatedly, to pore over them, analyze them, pushing here, prodding there, gaining concessions from the publishers/authors (never easily, of course), gaining concessions from Google. Those folks worked tirelessly to imbue the deal with public benefit. In the end, not all were satisfied with the degree to which the deal does in fact benefit the public, but they had done the absolute best they possibly could. Everyone anticipates criticism of the deal in this regard, as there was before: did libraries sell themselves short? I frankly don't think it is possible to fairly critique their effort without knowing what they were up against, how tirelessly they worked, how little the publishers and authors ever appeared to appreciate how critical their collections are to the dollars the publishers and authors now expect to make.

If one takes it as a given that this is a good thing (and a realistic, as opposed to idealistic and unrealistic way to get from here to there), libraries are not sitting at the head of the bargaining table, and they are not going to be able to get everything they wanted, or perhaps even much of what they wanted. But they sure put their all into it. It's not possible to walk a mile in their shoes. The walk is over. But I do hope that those who may be unhappy about the shape of the deal for the public (outside the obvious benefit to the public of discoverability, readability and the ability to buy "lost" books) won't be too quick to assume that any library could have done better. If the criticism is that none of us should have been involved at all, well, that's simply a non-starter. Libraries are not sitting the revolution out or trying to go it alone. Partnering is simply a fact of our lives. It always has been and always will be. We don't exist in a vacuum.

I hope the deal gets approved and moves on to implementation. It's exciting. I want it to succeed. It puts lots of feet firmly on the path. Who knows where that path leads? And boy does that make me smile.

Next time: orphan works, the sequel. Oddly, at the same time the publishers and authors were negotiating this deal with Google that structures access to orphan works in a particular way, they were also dealing with the Congressional effort to structure it entirely differently. What was up with that?

I'm sure many of you have read last week's Inside Higher Ed's interesting, if somewhat confusing, article entitled "Hitting Pause On Class Videos", http://www.insidehighered.com/news/2010/01/26/copyright.

In short, the story reports that the Association for Information and Media Equipment (AIME) is alleging that UCLA faculty members are infringing copyright by streaming entire (presumably) videos via their access protected course web sites. As I read the article, it appears as though UCLA is trying to defend this practice under Section 110(1), which only applies to traditional face to face (F2F) classroom settings. It is true that under that section an entire video can be show as long as it is lawfully made (p.s., rented movies are "lawfully made").

However, it doesn't matter, as suggested in the article, whether the online environment is a "class" and therefore, should qualify for the F2F exception; the TEACH Act amendments to 110(2) have already said that. The key is whether or not the performance or display is "transmitted". That is the difference between 110(1) and 110(2). Otherwise, no one would ever use 110(2) because its requirements are so many and so challenging.

The Copyright Act, §101, specifically says that "To "transmit" a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent." And that is exactly what is happening when videos are streamed online. Now, streaming (the transmission) a video online is allowed, under certain conditions, but not the entire thing. Only a reasonable portion of it. Not helpful, doesn't make sense, but there it is. While there is some indication that, on a case-by-case basis, showing the entire video may constitute what is reasonably necessary, but I have yet to see it condoned as a generally accepted practice.

There are also some interesting discussions occurring as to whether or not it is permissible to stream entire videos into a "live" F2F classroom from a central location on campus. Again, this would, strictly speaking, seem to be a "transmission", and, therefore, not authorized by 110(1); although there is probably some room for a fair use argument. But, as to a 110(1) (F2F) argument - hmm.

At the time 110(1) and 110(2) were authored, I believe Congress intended 110(1) to cover the scenario where the faculty, the students, and the work were in the same location. Here is the relevant legislative history for Section110(1) of the 1976 Copyright Act:
"There appears to be no need for a statutory definition of "face-to-face" teaching activities to clarify the scope of the provision. "Face-to-face teaching activities" under clause (1) embrace instructional performances and displays that are not "transmitted." The concept does not require that the teacher and students be able to see each other, although it does require their simultaneous presence in the same general place. Use of the phrase "in the course of face-to-face teaching activities" is intended to exclude broadcasting or other transmissions from an outside location into classrooms, whether radio or television and whether open or closed circuit."

It is that last sentence that gives the most cause for pause in the rush to stream entire videos from a central location into a "live" classroom. I fear that some of these distinctions between the various provisions of the act are being glossed over in the stretch to justify what certainly seem to be legitimate and non-threatening uses of technology which allow efficient use of resources for maximum educational experiences. I know from personal experience, though, that many libraries are reluctant to rest their e-reserves practices entirely on fair use. It seems only fair that they should also have the information that streaming entire videos online is not specifically sanctioned by the copyright act and instead relies much more on fair use.

Many of you, like me, have been watching the publishers' (plaintiffs) lawsuit against Georgia State University (GSU) concerning the amount of copyrighted material posted in the University's electronic reserves and online course management systems, pursuant to fair use. The burning question for me is how much was too much for the publishers?

Before the lawsuit was filed, materials on GSU's e-reserves could be viewed by anyone, enabling the publisher plaintiffs to acquire a great deal of data. Fifteen of their works were selected for inclusion in their complaint as illustrative of uses far in excess of fair use and, thus, requiring permission. The complaint names the work and the amount (pages or chapters) posted in e-reserves. [No specific examples were given for works used in online courses since those courses were access-protected].

What we all want to know, however, and what I was unable to locate in any coverage of this lawsuit, is how much of a work is so far beyond fair that it would trigger a lawsuit? In meaningful terms, like a percentage. Number of pages used is less than useful without knowing the total number of pages in the work. Oddly enough, the complaint does not supply that information at all. From the complaint, there is no way of evaluating what publishers consider fair or how far apart publishers and universities might be on this issue.

Ok. You can figure it out yourself, just takes more time. Using the amounts stated in the complaint versus the total amount of pages in the work, I obtained percentages for all but one older work.

[Note: Since I was working through Amazon, occasionally I only knew the number of pages up to the last chapter. This means that any errors favor the publishers, since I was using a total that was actually less than the true total.]

Are you sitting down? Here are the percentages used by GSU E-Reserves that resulted in a lawsuit; they are in ascending order rather than tracking the complaint.
4.6%, 9%, 9.9%, 11.5%, 12%, 12.4%, 12.5%, 13%, 13%, 15.7%, 18%, 22%, 26%, and 26.4%.
The average is 14.7%
The median is 12.75%
The mode is either 12 or 13%, depending on rounding.

I confess to finding these numbers remarkable. They speak for themselves. However, I might suggest that one reasonable view of these figures would be that, according to these publisher plaintiffs, there IS no fair use for e-reserves (or, by extrapolation, online courses). Meaning every use requires permission.

Does that bother you?

peggy

Apparently, the time is ripe for a broader discussion about the use of 3rd party copyrighted material within an online educational setting, such as electronic reserves (including all types of works in addition to text) and streaming entire videos within a course management system. Yesterday I commented on an Inside Higher Ed article that reported a complaint by AIME against UCLA concerning the university's practice of streaming entire copyrighted videos within access-protected course web sites. That initial article "Hitting Pause on Classroom Videos" (see previous post) struck a real nerve within the higher education community and generated lots of comments, both there and on other blogs.

In fact, a follow-up article, "Who's Right On Video Copyright?" [http://www.insidehighered.com/news/2010/02/04/copyrightredux] was posted today and is sure to keep the issue front and center. Between this controversy and the ongoing lawsuit against Georgia State University concerning their electronic reserves, the awareness of copyright's intimate connection and relevance to how higher education uses technology to teach ought to become painfully clear to academic affairs administrators and the culture they foster on their campuses.

As you read this article and the intensity of the opinions and comments both quoted in it and in response to the initial article, keep in mind a couple of things as you form your own opinion:
1. Whether it is accurate or not, the end of this 2/4/10 article suggests that the practice being challenged is probably not widespread: perhaps 14% or less of institutions. What does it mean that such an infrequent activity (maybe it isn't so infrequent?) triggers such - dare I say it - emotional responses? Is it 'just' another example of the fault line that exists between the academic model of sharing, even giving away, their works and the commercial information market that cannot exist without income in exchange for access?

2. Are you going to accept/believe everything you read as an accurate representation of copyright law and the facts simply because it is written and/or stated very firmly? For example, the most recent article refers to the "fair use" provision of the Digital Millennium Copyright Act (DMCA) and then links to Section 107 of the copyright act. [I would expect many of you on this blog to find an number of questionably accurate statements in both articles]. If any hay is to be made of such sudden interest in copyright law, do you think we might benefit from a move towards more accuracy in restating the relevant copyright provisions and perhaps more established ways of changing ineffective or outdated laws than just ignoring them?

3. Do you think expecting faculty members to exhibit a thorough and nimble understanding of copyright and its opportunities is realistic or likely to succeed? Faculty members undoubtedly possess the requisite mental ability to absorb and apply copyright law, but, with a few exceptions, is simply is not how they want to spend their time. They want to use certain material for their classes and they expect to be covered by an "educational use" umbrella that is truly waterproof. I don't blame them one bit - but what does that mean for our current strategies for campus copyright education? Do they want the nuances or do they want bright lines?

These articles certainly provide us with plenty to think about as we consider all the other activities occurring on our campuses that are implicated. Technology moves fast; the law does not. As new projects and ways of delivering information online are developed, the cart is usually way behind the horse. That is, wonderful, imaginative, time-intensive technology vessels and delivery mechanisms are developed before the copyright implications of the anticipated content are even examined. Vessels without content don't look good. It does not follow that because technology permits something, that the law also does.

Thanks, Peggy

Believe it or not, I am actually trying to write a blog piece about something other than this topic of UCLA and the legality of streaming entire videos online. But this isn't it.

In a statement released today, UCLA announced that it will restart its former practice of streaming (entire) movies/videos within an accessed controlled online classroom. You can see this announcement here. The news release article contains links to a principals document that outlines the rationale, if you will, UCLA is advancing.

I find the document confusing from a legal standpoint. To me, fair use is tangled in with 110(1), the face-to-face performance exception which is further tangled up with 110(2), the TEACH Act and topped off with the concept of time-shifting (from the Sony case) and the argument that virtual classrooms should be no different than physical classrooms regardless of how the law reads. Favorable pieces of one section of the law are taken out of context and combined with pieces from somewhere else. The idea that the same performance can be in both 110(1) and 110(2) simultaneously is very confusing.

For example, if streaming entire movies online within a virtual class qualifies as face-to-face teaching (110(1) because classrooms today should have no walls and the online class should be no different than the physical class in terms of what can be shown, (which, btw, I agree that there should be no difference in what you can show between these two types of classes; I don't necessarily agree that's how the law reads), then what is the point of 110(2), the TEACH Act? Whether you apply 110(1) or 110(2) hinges on whether you are "transmitting" the performance or display. That is the fork in the road.

If (ignoring the definition of transmission in the act which is quite clear) streaming the movie is not transmitting it, then you can stay in 110(1), the F2F section and show the whole thing. Furthermore, if streaming is not a transmission, then nothing that goes over the internet within an online class is either. So when would 110(2) apply? Never, right? Why even have it? Always use 110(1) where there are no restrictions on the type and amount of a work that can be performed or displayed, yes?

But if streaming is transmitting, then 110(2) is triggered, with all its conditions, including the restriction on performances to portions that are pedagogically necessary. As has been stated in other forums, there may be circumstances where showing the entire work meets that standard; but as an all-encompassing, general rule? I don't think so because it negates the whole "portion" language. Section 110(2), TEACH, is not going to support a policy that says - ahead of time - the entirety of every film is pedagogically necessary. If so, the performance language would read the same as the display language in 110(2), and it doesn't.

Before going too much farther, I should state, in very strong terms, that I agree completely that there should be no difference in the type and amount of materials available to the F2F student and the online student. Section 110(2) has never made sense, with its different treatment of students, even before passage of TEACH in 2002. Before then, it was more restrictive and treated cable students (even closed cable) different than F2F, where movies were concerned. So, before I am condemned as a party-poop, know that I am on-board with the UCLA sense of rightness and the way things should be; I'm not so sure that the law is. And it would be great if it were amended to reflect this but Congress has to do that.

To me, the strongest potential support for this streaming practice would be to rely on Section 107, fair use. Concluding that the fair use analysis will always support use of an entire movie, no matter what it is or how it is used, pre-emptively will be a challenge. I don't know if it will succeed in this area, but the practice has been employed for years in many fair use based e-reserves like ours.

In sum, the UCLA statement is a mixture of a strong appeal to values and a sense of the way things should be with a less robust legal foundation. This debate may well develop into litigation the way matters are escalating.

Peggy

I meant to post this information when it came out recently but better late than never. For those of you following the conversation on whether or not the law permits educational institutions to stream entire movies or videos within an online course, the Library Copyright Alliance has joined the discussion with an issue brief accessible from this site: http://www.arl.org/news/pr/Streaming-Films-19feb10.shtml

One of the brief's authors is CIP's own Peter Jaszi, and the brief is certainly a valuable contribution to the debate. Some of the press reports I have seen about it, however, almost suggest that the brief settles the matter and institutions can rely on it for both policy and practice purposes. It is being stated that the library associations have determined that this practice is well within the law and the light is green.

It will be interesting to see whether policies or practices at institutions change in reliance on this issue brief - I would caution that, as usual, the press may be overstating the conclusions or analysis presented.

Peggy

If you are reading blogs, it is safe to assume that you know what YouTube is. If you are reading this blog, it is probably also safe to assume that you are aware that there are significant copyright issues related to materials uploaded and available on the YouTube site. If you are working at a college or university, you are also undoubtedly aware that YouTube videos are frequently used by faculty in both F2F teaching and in online courses. The YouTube videos used range the gamut from amateur home videos to clips from commercial films to remixes of various media. The underlying copyright question is always the same: Can these videos be used in courses by faculty without infringing copyright?

Of course, education doesn't have the corner on copyright, infringement, and YouTube. Viacom is currently suing YouTube over claims that Viacom content is available on YouTube illegally and that YouTube knew it and didn't do anything about it. YouTube is asserting online service provider immunity under the DMCA but Viacom disputes their eligibility for that defense.

Last week thousands of previously sealed documents from this three-year old case were released, including lots and lots of email. Google email is involved as well because they own YouTube. Nobody looks good now, particularly Viacom.

According to the news articles, http://www.wired.com/threatlevel/2010/03/viacom-youtube/ Viacom has apparently been covertly uploading a significant number of videos of its own content to YouTube in a marketing effort. Apparently, Viacom employed at least 18 marketing firms to engage in this effort, had one of its own divisions "rough up" the videos to make them look pirated, and even sent employees to places like Kinko's to upload via their computers. Viacom did such a great job that it (and its lawyers) doesn't even know what videos it put up - Viacom's own monitoring agent, BayTSP, identified many videos that had been posted with Viacom's permission. Therefore, asserts YouTube, http://youtube-global.blogspot.com/the only way to know if something was unauthorized was from Viacom take-down notices. Even worse, some of the videos Viacom uploaded are the subject of the suit!

Also of interest is YouTubes' Content ID system, available by subscription to copyright holders. This system scans over 100 years' worth of video everyday and lets rightsholders choose whether to block, leave up or monetize the videos. According to YouTube, "over 1000 media companies are now using Content ID - including every major US network broadcaster, movie studio and record label. The majority choose to make money from user uploaded clips rather than block them."

OKaaay. Time Out. Media companies are posting their own material, openly or not openly, and tacitly endorsing uploads of their content by other users because its free advertising? And I was worried about use of commercial YouTube clips by our professors for transformative educational purposes in accessed-controlled online course environments?

Not only do I think our fair use position is solid, I now wonder how in the world one is supposed to know whether something is up on YouTube with the tacit permission of the commercial rightsholder? In fact, how does one know that the rightsholder didn't put it up there itself? (I know I'm missing something technical, but I'm not sure it matters...) How does this affect what we tell faculty?

Although each use of a YouTube video should be evaluated individually, recent events somehow dramatically lessen my concerns (in those instances where I had concerns) about use of commercial-looking videos downloaded from YouTube for nonprofit educational teaching purposes, especially where such uses are highly transformative. By that I mean, the faculty are almost always using the clips to illustrate something entirely different than what the creators intended when creating them.

How are other institutions handling copyright and YouTube videos?

peggy

AND THANKS FOR THE HELP!!

Readers of this blog are no doubt aware, to some degree, about the 2008 lawsuit by publishers, including non-profit university presses, against officials of Georgia State University (GSU) alleging massive copyright infringement occurring in GSU's electronic reserves service as well as in online courses hosted through GSU's course management system. Plaintiffs' complaint goes to the very core services - e-reserves and online teaching- that form the basis of most university teaching activities, demanding that permission fees should be paid for copyrighted materials used in excess of fair use. The examples listed in plaintiffs' initial complaint as exceeding fair use for electronic reserves ranged from 9.9% to 26.4% of works being posted without permission.

Although the suit has been percolating along for years, it exploded onto our internet radar last week, during its first weeks of trial, when the publisher plaintiffs filed a proposed injunction requesting the judge to require seeking permission and paying permission fees for each and every use of copyrighted material at GSU that exceeds the very stringent, out-of-date, and essentially obsolete amounts contained in the "Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals",contained in the legislative history of the 1976 Copyright Act. That's right. Books, classrooms, 1970s, and not actually the law -even in 1976.

Not only would this injunction require all faculty, all librarians, all students, basically EVERYONE at GSU to seek permission for pretty much everything they use, it also asks the judge to order GSU to police all uses and certify adherence to the injunction, give everyone on campus a copy of the injunction, ensure compliance with the restrictions, change policies, educate, designate an individual responsible for compliance, and allow plaintiffs access to the university's computer systems every semester so the publishers can verify what is actually being used. The President of GSU would have 45 days to submit a report outlining the steps taken to implement the injunction requirements and to certify compliance. After that, such report and certification would fall to the Provost for the next 3 years. The report must include a list of every item on e-reserves, the course-reserve page where the materials are listed and the number of "hits" for each item during the semester.

I'm not making this stuff up - really.

Because this lawsuit will likely be a landmark case for higher education, it warrants some discussion and observations, which I will divide into:
•Why did the publishers choose this university and this fact pattern?
• Is the injunction even legal?
• Was the injunction a smart move? What does it tell us about the publisher-plaintiffs?
-Reality check
-Time travel
-In the land of make-believe
• FINALLY, THANKS FOR THE HELP!!!

• WHY CHOOSE A STATE INSTITUTION, SPECIFICALLY, WHY GSU?
To be sure, it was inevitable that e-reserves and online course use of copyrighted material would eventually provoke a lawsuit. Indeed, numerous universities had received complaints about their e-reserve practices that generally included a letter and a sample legal complaint, showing the publisher's willingness and readiness to sue should the university not mend its ways. Some universities changed their written policies, notably Cornell. However, after clamping down on e-reserves, a Cornell employee noted that e-reserve use dropped something like 70%, with the professors simply moving the desired materials directly into their online course.

E-reserves was the obvious choice for litigation, with the hope that a favorable decision there could scope creep over into online course practices. Why? Because two lawsuits, in the 1990s (the evening of the paper dominated world and the dawn of the digital internet era), Kinko's and the Michigan Document Services (MDS), had 'established' that use of articles and excerpts in print course packs required permission, and, invariably, permission fees, with the cost passed on to the student. Even then, however, the later suit (MDS) addressing fair use, reversed twice, with the publishers finally prevailing in a 5/4 vote. Hardly a settled matter even among copyright experts.

These cases were enough to support challenging e-reserves (and by association, online courses) as representing a vulnerable practice, if done without payment of permission fees. Surely, the publishers thought, a judge could see that e-reserves are merely the digital version of coursepacks. The only legal rationale supporting the use of portions of copyrighted materials in e-reserves, without permissions, is Section 107, Fair Use, a powerful and critical doctrine that allows a balance of competing interests, and, without which copyright could not achieve its purpose of promoting science and the useful arts. The e-reserves battleground is clearly over the existence and interpretation of fair use.

That explains the attack on e-reserves, but why would anyone choose Georgia State University, a public institution that enjoys immunity from copyright infringement lawsuits based on the 11th Amendment sovereign immunity doctrine? One can't sue the university itself, money damages are not available, leaving only university officials, in their capacity, as the defendants and injunctions as the relief. [the named defendants were the President, the Provost, the Library Director and the IT head] Some publishers assert that GSU's activities were uniquely excessive. Are they? Maybe not today.

Do you think that a group advocating such a proposed remedy, especially in the current economic climate, has their finger on the pulse of e-reserve practices? One can't help but wonder whether this injunctive lawsuit might have been targeting a certain widely read, extensive and liberal copyright faq document, "The Regents Guide to Understanding Copyright and Educational Fair Use", which immediately disappeared from the web after this lawsuit was filed.

•IS THE PROPOSED INJUNCTION EVEN LEGAL?

The proposed injunction, with its detailed prohibitions concerning nearly every action taken by any human being at GSU, has to be read to be fully appreciated. As has been noted by several commentators and bloggers, it would be impossible to implement this injunction, even if one had the tons of money and time it would require. The mandatory and comprehensive permission requirements may be illegal as written, since they contradict actual statutory provisions of the Copyright Act, including Section 110, the Performance and Display exceptions, as well as a host of other copyright rulings. Let's not forget as well, the trampling of student FERPA and rights of privacy should plaintiffs be allowed regular access to the university computer system.

•IS IT A SMART MOVE?

I don't know. I do think about issues of credibility, ethics, and behaving in a consistent manner. In this proposed injunction, the publisher plaintiffs are demanding payment for use of nearly every single word, yet the same groups are willing to sign on to an Amended Settlement Agreement in the Google Books lawsuit, that basically allows unimpeded copying of orphan works. Go figure.

-Reality Check and Time Travel
Reading the history lesson of the old Classroom Guidelines, which, recall, were never law and specifically state they represent the minimum that could be done, this injunction's attempt to raise them from the dead and make them the "law" at GSU today (2011), is akin to falling down the rabbit hole. This injunction would have us travel back in time to the higher education world of the 1970s. Plaintiffs want us to adopt guidelines that were written in a world without personal computers, the internet, cell phones, text messaging, digital TVs, dvds, online classrooms, digital cameras, YouTube, fax machines, satellite radio, personal gps systems, Kindles, and on and on. Does this make any sense in today's reality?

Plaintiffs yearn for the good old days, when a business model based on making money from copies made more sense and was somewhat doable. They aren't alone. As society progresses, evolves, and advances, those who adapt to change and continue to make themselves relevant succeed, while others are no longer needed. Remember TV antennas, typewriters (manual and electric where a physical action was needed to start a new line and mistakes needed white-out or correctable white tape), carbon copy paper, eight-track tapes, cassette tapes, records and record players, rented telephones, televisions without remotes, slide projectors, overhead transparencies, renting the vhs or beta player machine when you rented a movie? Remember? Such items and entire businesses based on them played very relevant and critical roles in their day. Do they make sense today? If they do, I have a nice electric typewriter for sale...

-In the Land of Make Believe: Everyone who knows there is an economic crisis, raise their hand

In the middle of the worst economic period in my lifetime, plaintiffs want America's higher education system, facing yet another year of historic cuts in their budget - cuts that are now clearly affecting the quality of education delivered (huge classes, fewer choices, elimination of entire programs, majors, and colleges, staff, as well as faculty lay-offs, regular furloughing) universities, their students, and the underlying taxpayers, not only to come up with permission fees, even if the use is actually permitted under current copyright law, but also conjure money to develop and implement the infrastructure that would be required.

State employees (those who still have jobs) face yearly increases in health care costs and deductibles, parking fees, and other consumer cost of living increases, but receive no pay increase, even to address rises in the Consumer Price Index. At the same time, their workload increases as colleagues are riffed. Again, where is this money supposed to come from?

THANKS FOR THE HELP!

In my experience, university libraries have tried to do two things simultaneously, that actually undermine each other. First, librarians try their utmost to provide their users with convenient, fast, and pretty much seamless access to whatever materials they require. Although most faculty are aware that there is a money issue (because of annual serials cancellations), they usually get what they need anyway through ILL or library consortial access. By sheltering the faculty from any discomfort or access to resource issues, faculty can easily remain disconnected from responsibility for their deeply flawed and unsustainable scholarly communication system.

At the same time, many libraries have for years engaged in various efforts to raise faculty awareness about responsible management of their own copyrights and the significant negative effect their transfer of copyright to publishers has on the scholarly communication system in general and their own access to material in particular. Symposiums, workshops, open access, institutional repositories, the NIH mandate, the Tempe Principles, the SPARC Author's Addendum, Creative Commons, Know Your Copy Rights, and multiple other efforts have been launched with an eye towards "waking up" the silent majority of faculty who are either unaware or believe these issues are not theirs. Progress has been made, but, until the faculty really feel the pain, change will remain slow.

However, this proposed injunction is so onerous, so intrusive, so far-reaching, and so incompatible with the reality of teaching and learning in the 21st century, that simply widely publicizing the existence of and contents of the proposed injunction may well achieve what the library community has been trying to do for the last twenty years.

**WAKE UP THE FACULTY AND MOBILIZE THEM TO RECLAIM CONTROL OF THEIR OWN WORKS OF AUTHORSHIP AND THEIR OWN SYSTEM OF SCHOLARLY COMMUNICATION.**

This injunction is your fuel - now LIGHT that fire!

Peggy Hoon
CIP Intellectual Property Scholar

For many months, the academic world has been keeping an eye on a potentially critical lawsuit brought by AIME (the Association for Media and Equipment) and Ambrose Video Publishing (Ambrose or AVP) against UCLA (or more specifically, the Regents and several named university officials in their administrative and individual capacity). The plaintiffs, AIME and AVP, sued UCLA because the institution was purchasing education dvds (some from AVP, others from AIME association members), circumventing the technological protections embedded in the dvds, and then streaming (transmitting) the entire movies in their online, password-protected course management system.

Additionally, and significantly, the AVP dvds were acquired by UCLA pursuant to a license agreement, a portion of which is reproduced below.

The watching world, extrapolated from this lawsuit fact scenario the following burning copyright questions(s):

1. Can a non-profit educational institution stream entire movies within an online, password protected course management system without violating copyright laws?

2. If so, which educational exceptions in the copyright act allow this? §107, known as Fair Use; §110(1) the face-to-face classroom performance exception and/or §110(2), the transmission of performance and display, a.k.a., the TEACH Act?

Legal scholars, library and educational associations, and copyright holders and their associations naturally differ in their answers to those questions. Blogs, opinion briefs, and talks came to life, all focusing on those two questions. And those are the questions we hoped for an answer from this case.

On October 3, 2011, the trial judge dismissed the case in a brief (13 page) order. At last, academia thought, an answer, or at least some copyright guidance. Instead of being a copyright case, however, this case became a civil procedure and contract case with copyright mentioned primarily for its characteristic of being a federal law.

The bottom line is that the copyright questions were not reached in the actual holdings. In her order granting defendant's motion to dismiss, the course never reached the copyright questions on their own merit. Any passing reference to copyright is at best hopeful dictum, which cannot be pulled out of context and mischaracterized as a "copyright win". It certainly does not stand for the proposition that streaming entire copyrighted films within password protected course management systems is lawful.

WHY NOT? WHAT HAPPENED?
That's the question we care most about. By definition, a Judge's decisions are not going to make everyone happy. That's not her job. It is also not her job to go beyond the facts of the case before her and decide questions prematurely simply because we want her to do so. There are procedural issues and requirements that must be met before a judge can get to the merits of any particular case. The case must present in the proper posture with qualifying parties pleading the requisite elements of any particular claim. Any failure in these early rounds and the case stops there. No view of the merits of the case can be inferred.

WHO SAID WHAT?
In the order dismissing the lawsuit, the court recites the facts of the case in a disturbingly brief manner and with a puzzling omission of key facts. For example, it is interesting that AVP is not identified as the copyright holder of some of the works at issue nor as a member of AIME. Perhaps the complaint was not specific enough, referring to AVP as a creator, rather than a copyright holder per se. It is also very interesting that the license between AVP and UCLA is barely mentioned; or perhaps, more accurately, that one section is heavily relied upon, ignoring other terms in the license. The complaints of the plaintiff are listed and importantly, since the court granted UCLA's motion to dismiss, the relevant defenses are listed:
1. UCLA et al is immune from suit;
2. AIME lacks standing, and
3. Plaintiffs failed to state a claim upon which relief can be granted.

FIRST THINGS FIRST
Our legal system has a LOT of rules governing lawsuits - who can bring them, when, where and what elements of any particular wrongdoing must be stated somewhere in the paperwork, with facts to back it up. Only after all these rules are satisfied will a court begin to look at the merits of the case.

This court decided the initial rules were not satisfied, which allowed her to dismiss the case without having to directly address our copyright streaming questions.

WHAT DID THE COURT HOLD?
1. You cannot sue a state agency for money damages for violating copyright law (including the DMCA, a part of copyright law), even if they fail to comply with copyright restrictions set forth in a license agreement. Signing these licenses purporting to abrogate or limit rights under the copyright act is not an implied waiver of state sovereign protection from suit. Therefore, one cannot sue a state agency (university) for violating the federal copyright statute by engaging in infringing conduct, even if that state university signed a contract specifically promising they would not infringe.

2. Can the state agency (university) be sued for breach of contract and other state law claims if the signed contract in question sets limits on what the university is allowed to do under the federal copyright act?

The AIME court stated, in Discussion III Failure To State A Claim d. State Law Claim that "The Copyright Act preempts claims that "are equivalent" to any of the exclusive rights within the general scope of copyright." 17 U.S.C. § 301(a); Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1089 (9th Circ. 2005). A state law claim is preempted if : (1) the work involved falls within the general subject matter of the Copyright Act, and (2) the rights asserted under the State law are equivalent to those protected by the Act. Zito v. Steeplechase Films, Inc., 267 F. Supp. 2d 1022m 1027 (N.D. Cal. 2003)

As made clear by the court, a state law breach of contract claim based on the exercise of rights set forth in the copyright act, even if prohibited by the contract, would fail because of Copyright Act preemption. For example, if a contract tried to prohibit ILL, an activity authorized by the Copyright Act, that part of the contract would be pre-empted. If the signatory institution, public or private, exercised their ILL rights, a state law breach of contract claim should fail. The private institution might still be sued for infringement of the federal copyright statute itself, but not because it may or may not have complied with a license.

For me, that is an amazing take-away. I've been engaged in licensing efforts by academic libraries for e-resources for decades. Over and over and over again, I've heard that contract law prevails over copyright law and one needs to be careful not to sign away fair use rights. Reading this order, you can't.

Sit for a minute and think about the implications for the thousands and thousands of e-resource licenses signed by U.S. academic libraries. Does this not change everything?

Comments are welcome

Peggy E. Hoon, J.D.
CIP IP Scholar

Next Up: Associational Standing and Overuse of the Sovereign Immunity Defense

Excerpt from Ambrose License
QUOTE FROM EXHIBIT 3 FROM PLAINTIFF'S COMPLAINT

Educational Television
For information and pricing regarding Education Television go to www.ambrosevideo.com/etv.cfm

Terms and Conditions

AMBROSE VIDEO PUBLISHING

Listed below are the basic terms and conditions that govern your use and purchase of precuts/programs from our website. Your use of the content purchased from Ambrose Video Publishing (AVP) constitutes your acknowledgment and agreement

AMBROSE VIDEO PULISHING

Listed below are the basic terms and conditions that govern your use and purchase of precuts/programs from our website. Your use of the content purchased from Ambrose Video Publishing (AVP) constitutes your acknowledgement and agreement to all of the terms and conditions contained below ("Terms of Use")

AVP is the licensor and you, the user, are the Licensee.

You hereby agree to the following Terms of Use:
1. Grant of License
AVP grants to the Licensee a limited, non-exclusive, recovable license to use the Content (as defined below) is an educational OR home video setting.

CUSTOMER ACKNOWLEDGES THAT THE PROGRAMS MAY NOT BE DUPLICATED, BROADCAST, TRANSMITTED BY CABLE OR OTHERWISE, ON ANY MULTI-RECEIVER OPEN OR INTERNET SYSTEM, OR DISPLAYED BEFORE THE PUBLIC, WHETHER OR NOT ADMISSION IS CHARGED. CUSTOMER SHALL EXHIBIT THE PROGRAMS ONLY AS HEREIN SPECIFIED AND USE THE PROGRAMS FOR NO OTHER PURPOSE.

Customer shall not sublicense, sublease or part with possession of any Program received by customer hereunder. Performing rights to music contained in any Program are not granted herein. Nothing herein shall derogate from any rights of Ambrose or any other copyright proprietor of any Program under the United State Copyright Law or any applicable foreign copyright laws.

What's the Deal with Associational Standing?

As we all know by now, the streaming video/copyright infringement case (as it is casually known) against UCLA was dismissed earlier this fall on a number of procedural grounds and as such, the court was unable to rule on the merits of the case; that is, whether or not streaming entire videos within an accessed controlled online course constitutes copyright infringement, among other things. As the court said in its opinion, "Jurisdiction must generally be determined prior to a federal court considering a case on its merits", citing supporting case law.

Jurisdiction includes a number of concepts, including subject matter jurisdiction and whether or not a party has "standing" to sue. It's complicated. Indeed, for those of you who found something else to do for three years besides spending 10-12 hours a day reading case law, hornbooks, treatises, law review articles, and attending law school courses embodying an unusual amount of public humiliation, there are entire courses (multiple) devoted to the study of civil procedure. Having said that, I thoroughly disclaim expertise in said area of the law and haven't litigated in twenty years. I am completely open to being corrected or otherwise educated by my more experienced and knowledgeable colleagues.

However, since this case was so closely watched by the library and higher educational community (not to mention video producers and the motion picture industry in general), I became interested in why plaintiff AIME (Association For Information Media and Equipment) was thrown out of the lawsuit rather quickly (and apparently, not unexpectedly) for failure to achieve "associational standing." In the court's opinion, it was dealt with rather in a somewhat conclusory fashion, the court simply quoting three requirements for associational standing and stating that AIME failed the third. (more later) This result was noted by other bloggers with speculation that the Authors' Guild would suffer the same fate in its suit against Hathi Trust (although there are quite a few other plaintiffs in that case that do not suffer the same potential problem that the Guild might).

As I said, I am no associational standing expert but it seemed to me - and maybe you as well - that associations are suing over copyright infringement all the time. Think about it - all those lawsuits brought by the RIAA, or the MPAA, or the AAP. And what about associations like ALA, or ARL, or the EFF? How is it that they meet the associational standing test? Anyone?

According to the UCLA court, as well as pretty much most federal courts considering the question of associational standing, the association must meet three requirements:
1. Its members would have standing to sue on their own,
2. The interests it seeks to protect are germane to the organization's purpose, and
3. The case does not require the participation of individual members in the lawsuit. The seminal case setting forth these requirements is Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977).

AIME describes itself as "a non-profit membership organization offering copyright information and support to teachers, librarians, media center directors, producers and distributors of informational film, video, interactive technologies, and computer software and equipment. AIME serves as your organization's copyright resource." That's interesting - copyright information and support to teachers and librarians? Sounds familiar.

So, after spending a good amount of time looking up cases, it would appear that an association can bring suits on behalf of its members, but it depends on the nature of the lawsuit. In the case of a copyright infringement lawsuit, only the copyright holder can bring the action. Although the popular press frequently refers to copyright infringement lawsuits being brought by the AAP or the RIAA, etc. if you actually look up the case itself, the associations are not the plaintiffs. They may be funding the lawsuit, organizing the campaign, if you will, but they are not actually the named plaintiffs. Even the Google book project lawsuit,involving the mass copying of both in-copyright and out-of-copyright books by Google in university libraries, is actually brought by individual publishers that hold the copyrights at issue, rather than their trade association.

I finally found what I was looking for in the archives of Patry's excellent copyright blog , although the following quote is from the 2008 entry of Professor Peter Friedman of Case Western Reserve University who devised an assignment for his law students involving writing briefs on either side of a fictional copyright infringement lawsuit. His students' materials and more are still available on his What Is Fair Use? page.

To quote:

"Mr. Patry is correct in stating that the lawsuit does have to be brought in the copyright holders' names, but ASCAP can and often does bring it, in their names, on their behalf. Thus, though ASCAP should not nominally be a plaintiff in my fictional lawsuit, it could nevertheless be the party prosecuting the lawsuit on behalf of the copyright holders. In other words, ASCAP is often the driving force behind these lawsuits even if it is not named as a plaintiff. Thus, the fact ASCAP is actually named as a plaintiff in my fictional case is, for all practical purposes, a moot issue. Thus, the court in Ocasek v. Hegglund, 116 F.R.D. 154, 1987 U.S. Dist. LEXIS 5193, *7-8; 4 U.S.P.Q.2D (BNA) 1127; Copy. L. Rep. (CCH) P26,149, 157 (D. Wyo. 1987), explained:



"Yet for all of ASCAP's broad power to enforce its members' copyrights, it cannot bring an infringement suit in its own name. ASCAP's Achilles' heel, if it has one, is that it lacks standing to sue for infringement of its members' copyrights. See, e.g., Broadcast Music, Inc. v. CBS, 1983-2 Trade Cas. (CCH) P 65,661 (S.D. N.Y. July 20, 1983); Eden Toys, Inc. v. Florelee Undergarment Co., Inc., 526 F. Supp. 1187, 1190 (S.D. N.Y. 1981), rev'd and remanded in part on other grounds, aff'd in part, 697 F.2d 27 (2d Cir. 1982).

"ASCAP's rather odd status as ghost-plaintiff is due to the combination of copyright and antitrust laws. The Copyright Act has always specified that only the copyright owner, or the owner of exclusive rights under the copyright, as of the time the acts of infringements occur, has standing to bring an action for infringement of such rights; a non-exclusive licensee does not have standing. 17 U.S.C. § 501(b). Prior to 1950, ASCAP did operate as an exclusive licensee of the copyright owners. However, in response to antitrust suits brought by some ASCAP licensees, the government amended a prior consent decree between ASCAP and itself (also in response to antitrust litigation) such that after 1950, ASCAP was prohibited from acquiring exclusive performing rights and was thus limited solely to non-exclusive rights. United States v. ASCAP, 1950-51 Trade Cas. (CCH) P 62,595 (S.D. N.Y. 1950); see also, Buffalo Broadcasting v. American Soc. of Composers, 744 F.2d 917 (2d Cir. 1984). The cumulative effect of these various laws and rights is that while ASCAP bears the primary responsibility for enforcing its members' copyrights and has authority to bring enforcing lawsuits on behalf of its members, it must remain a non-exclusive licensee and, therefore, cannot bring the suit in its own name. This dichotomy between ownership and enforcement of copyrights creates this rather unique situation wherein the plaintiff has little or no information about a lawsuit to enforce his or her rights while a non-party, ASCAP, is fully informed, available and responsible for the legal action."

While in many ways, it seemed obvious that AIME, not being a copyright holder, should not be able to bring a copyright infringement lawsuit, I had never had occasion to go behind many of the reports and articles discussing copyright infringement lawsuits brought by other associations, most prominently RIAA. Thus, my interest in why some associations apparently could sue, yet AIME was tossed out. I'm still not entirely sure I have the whole picture because I have the utmost respect for the plaintiffs' attorney, Arnold Lutzker, who has provided many an opinion on behalf of library associations as well as speaking and teaching us frequently on copyright topics. If he included AIME, there had to have been a reasonable argument.

As said before, I welcome comments, corrections, and enlightenment of all nature.

Peggy Hoon
IP Scholar

P.S. If you are having difficulty posting a response, you need to contact the Center for Intellectual Property. If you know me at all, you know the technical side of this site is not under my control.