©ollectanea

A short post by Colette Vogele, at Stanford's Center for Internet and Society, Schloss hearing, suggests that the judge in the case will likely allow the case to proceed, denying the defendant's motion to dismiss. She attended the hearing and had this to say:

From the hearing, I felt Judge Ware was fairly predisposed to rule in Professor Schloss's favor and allow the case to proceed beyond pleadings. I was really impressed with how prepared he was and how he clearly understood the background and factual questions that were being raised by the defendant's motion to dismiss the complaint. Although he didn't rule on the motion at the time of the hearing, he did give a strong indication that he'd be issuing a scheduling order (so, I gather he's not dismissing the case!).

If you are not familiar with this case, The Center, whose attorneys are representing Schloss, also has more information on it. It is a very high-stakes fair use case, so we should all be watching it carefully.

If you are following the story about Viacom's notices alleging massive infringement of copyrights on YouTube, you may be reading about it from many different angles. John Palfrey from the Berkman Center at Harvard is particularly interested in the issue of the chilling effect that notices have on fair uses and has referenced this and other issues involved in the Viacom action in a recent post, Another Video for the Put-Back-Up List?.

For more information on this subject, visit The Chilling Effects Clearinghouse, and read, "Will Fair Use Survive? Free Expression in the Age of Copyright Control," by Marjorie Heins and Tricia Beckles. This is a Brennan Center report detailing the chilling effects of the notice and take-down procedure.

The Chilling Effects Clearinghouse is collecting evidence to further document the negative effects of the notice and take-down procedure. Viacom's 100,000 notices are sure to add many stories to the list. Whether it will be enough to prompt changes in the law is another thing, however. That process itself is extremely difficult. When Congress revisits an existing law -- everyone who has any problem with it can take that opportunity to urge amendments. Just as users and ISPs have their concerns with the law, content owners are unhappy about some aspects of the law as well, so opening it up to change could be a risky proposition for all.

Google has a pretty good track record with its court cases, but this one, as reported by O'Reilly Radar, has gone against the company: O'Reilly Radar > Google Loses Newspaper Copyright Case in Belgium. Ironically, O'Reilly's note points out that the result will likely harm the publishers who won their case, whose materials will not be available through Google. It's the business model...

As Lawrence Lessig reports, Very Sweet Victory: Schloss, Stanford's Center for Internet and Society and its extended legal team has won a victory in the district court, allowing the Schloss fair use case to move forward. Lessig's site includes a link to the opinion which he terms well and completely reasoned.

In an intriguing article about remix culture, The Ecstasy of Influence (Harpers.org), author Jonathan Lethem practices what he preaches, that creativity requires a generous scope for borrowing, alluding, quoting, reusing, remixing, that these acts are fundamentally sane, wholesome, and critical to creation.

My husband is an artist and I am a lawyer. You might wonder whether we have a whole lot to talk about. Well, I guess it's fortunate that I'm a copyright lawyer. At least that has an obvious relationship to the art world. But more to the point, we're both in graduate school right now (I'm pursuing a degree in Information Studies, he's pursuing an MFA in studio art), reading incredible things and talking about how phenomena in the art world, such as the shifts that occurred in the 20th century, are mirrored in the development of communications technology, of law and information policy. We should have had this article in front of us this weekend. It's right to the point. Lethem's themes are universal and so very important to the worlds of innovation, wherever based.

The article is long, but well worth your time to read it.

Wendy Seltzer is a law professor at Brooklyn Law School and recently sought to illustrate a point about the extent to which copyright owners go to protect their works by posting on YouTube a clip from a football game that contained the NFL's copyright notice: Wendy's Blog: Legal Tags: My First DMCA Takedown. Predictably, YouTube got a take-down notice from the NFL and removed her video. She is protesting the take-down as fair use, also predictably. What's really interesting is the range of opinion evidenced in the discussion and commentary to her posting of the facts of this event on her blog. For those of us who can't imagine how anyone could not believe that such a use is fair -- a law professor posting a 30 second clip that contains the copyright notice for the game, in the context of study of copyright protection -- will find some interesting explanations, from at least one IP lawyer, of why it's not fair. Go check it out.

If I were in NYC tomorrow, I would sure make every effort to hear this distinguished panel discussing appropriation art: The Patry Copyright Blog: Appropriation Art Conference. Patry's blog entry on the panel discussion notes Jeff Koons' 2005 fair use win for a transformative use of another's photograph Blanch v. Koons), in stark contrast to his "String of Puppies" loss years ago (Rogers v. Koons). Patry discussed the Koons win in more detail in an earlier entry. Tomorrow's Conference is sponsored by the College Art Association.

Colette Vogele at the Stanford Center for Internet and Society provides a short summary of the important features of the new FAIR Use Act, Support the Fair Use Act | Stanford Center for Internet and Society [beta site], as well as links to sites that allow you to register your support.

Hope springs eternal...

About a year and a half ago, several folks involved in trying to create more breathing room for fair use in the documentary film business worked together to come up with a set of principles that they believed should represented the scope of fair use within that industry. They published these principles as Best Practices in Fair Use. At the time this signaled, along with the development of some divergent court holdings with respect to the scope of fair use in different creative contexts, that maybe a "genre by genre" understanding of fair use would evolve, or should evolve.

Now two additional developments reported at Info/Law � Even Better News on Fair Use and Insurers confirm the value of this approach. The Best Practices are being adopted as standards for insuring productions. Insurers are one of the conservative "gatekeepers" whose demands for reduced risk drive development of the permission culture.

Responsible statements of fair use best practices for different segments of the entertainment, artistic and musical businesses offer real hope that we can back away from the precipice of the permission culture, where every single little piece of anyone else's work included in a new work must be cleared. Of course, clearing everything is more often than not impossible, which results in a reduction in the creation of new works or their scope, precisely the opposite result from what we expect from copyright. But this result is not surprising when the rights of owners are interpreted so broadly as to exclude any use of others' materials whatsoever without permission.

A big hand to those who have worked to create the first set of Best Practices and encourage their adoption more widely within the documentary film industry. Now we need to see similar efforts among other segments of our creative industries. Closely related to this is the magnificent effort to encourage artists, musicians and all creators to "tag" their online works with Creative Commons licenses that make explicit the range of rights the creator gives the public, affirmatively enabling sharing reuse and remixing.

Evan Brown has a succinct explanation of the various parts of the new FAIR USE Act, the bill introduced in Congress last week that would make several changes to the anti-circumvention provisions to allow certain uses that have become problematic over the 8 years those provisions have been in place: InternetCases.com -- Evan Brown, Chicago intellectual property and Internet attorney. He provides a link to the bill so you can read along as he explains.

He also points out 2 problems with the bill, but not the biggest problem of all -- its likelihood, or lack there of, of getting passed. Still, this bill in some form or another has been and I bet, will continue to be introduced in every legislative session until some day, anti-circumvention is going to be modified in some ways. It may not happen until those who use DRM have given up on it in favor of other business models...

One aspect of the research I plan to do while I'm studying at the ISchool (University of Texas at Austin) involves international aspects of the adaptation to a networked world. In particular, I'm planning a soujourn in France this summer to study the French take on the future of libraries in a networked world.

To prepare, I study not only information studies, but French, and I read several French newspaper headlines/stories each day (news feeds) and some blogs about the future of research in the visual arts in France. This particular blog entry caught my eye as I was reviewing earlier entries because it illustrates the very point I was making yesterday when I posted the piece about the need for genre by genre development of fair use best practices: Le droit aux images a l'ere de la publication electronique.

Even if you don't read French, you might visit the post because the image that is the subject of the post speaks volumes (precisely the point, isn't it?). The post is about how the exercise of author's rights in images affects publication of works that are image-based, such as the one described in the post, an online retrospective review of art from the period, 1988 - 1999. The author of the post asks, in commenting upon the "vast white spaces" left by the omission of every image in the article, "would we accept seeing a review of literature shaved of its citations?" This comparison brings to mind as well the current struggle between the Joyce scholar, Carol Shloss, and the Joyce estate, over her ability to include in her research results (a book and Web site in her case) quotations from copyrighted works that illustrate and support the conclusions she draws.

Those who study and teach in fields that require the use of images (art, art history, architecture, media studies, etc.) could put forward a strong statement of fair use principles, like the Best Practices document I mentioned yesterday. This is a group that has for way too long labored under a very difficult copyright-related burden to carry on its important work.

The Stanford Center for Internet and Society reports today that Stephen Joyce and the Joyce estate have entered into a settlement agreement with Shloss: Important Victory For Carol Shloss, Scholarship And Fair Use | Stanford Center for Internet and Society. Stanford is hailing this as a victory, but cautioning that there needs to be a string of such cases to effectively make the case for fair use for scholars and creators of all types. I'm sure we'll hear more about this in the coming days. At least in the realm of the creative, fair use is definitely making some headway.

It almost seems like an April Fool's joke. The Washington Post reports that four high school students are suing Turnitin.com, a service that checks student papers for plagiarism, for copyright infringement. They're seeking $900,000 in damages -- the statutory maximum of $150,000 for each of six papers, which, naturally, the students registered with the Copyright Office (presumably) before turning them in. The crux of the students' argument seems to be that Turnitin "willfully" violated their "instructions" not to archive their papers in its database. Such instructions would, arguably, defeat any implied license that Turnitin might otherwise have had under the circumstances.

But while it may seem silly (at best) for the students to be "making a federal case" out of this, their lawsuit actually has potentially serious implications for electronic databases generally. What Turnitin is doing is not terribly different from, say, Google's library project or the many other such databases that libraries and scholars have been assembling in recent years. While all of these databases unquestionably make use of copyrighted material, they quite arguably are doing so in socially useful, "transformative" ways that have no appreciable impact on the copyright owners' ability to exploit the value of their works. In fact, if anything, Turnitin's own database would seem to have even less such impact, because it offers its users virtually no access at all to the source material. Thus, a win for these students could be bad news for fair use.

In a story in Paris' Le Monde, Le Monde.fr : Accord de partenariat entre l'AFP et Google, the French daily reports that Google and the French news agency that sued Google in March 2005 for copyright infringement have settled their differences, and the suit has been dismissed. Unfortunately, the story reports that the terms of the settlement are secret (surprise!). It doesn't offer a lot of details, but it does suggest that Google will gain broader access to the Agency's holdings than it had under its claim of fair use (headlines, images, maybe a short blurb). This would be consistent with the kinds of deals that Google has negotiated with copyright holders in the US in connection with Google Book Search, where it claims a basic access under fair use to digitize in order to represent a work in its index and to show snippets, but negotiates with copyright owners for rights to provide broader access to content. I looked for confirmation of this story in English-speaking venues but have not seen it yet.

I read with interest today that the President of the Bibliotheque National, Jean-Noel Jeanneney, has apparently been forced to resign:Jean-Noel Jeanneney quitte la presidence de la BnF - Tour de Toile du BBF. You might wonder why this seems important to me, unless you know what I'm studying at the iSchool...

But, more generally, it's of interest because Jeanneney is an impassioned critic of all things Google. In fact, in his slim volume, Google and the Myth of Universal Knowledge, he says at one point, something to the effect, "Whatever Google does, we should do the opposite."

His principle criticism was that selectivity and organization should be at the heart of the process of digitization, and of course, Google's goal is to digitize everything and let the users sort it out through search, tags, bookmarks, etc. He also criticizes our reliance on the market to do what he thinks should be done with public money in Europe. At the core of Google's undertaking, and implicitly rejected in France's efforts that so far involve only public domain works, is reliance on fair use to justify digitizing books still in copyright. Being an employee of a Google Library partner, I'm not neutral on the matter, but I must say that the book is very well written and raises good points. Nevertheless, one commenter on the blog where I saw this note about Jeanneney's departure seemed to suggest that there might be a connection between the fact that Google had so far digitized 10 million books and the Bibliotheque National, 100 thousand, and Jeanneney had essentially castigated Google for performing well. While neither of the figures is likely accurate, they get the general gist of the point across.

As always, there's no doubt a lot more to the story than initial reactions suggest, but I wonder whether Jeanneney's departure signals an opening for a new attitude towards mass digitization projects in France. Not coincidentally, I am headed there in 5 weeks to interview several librarians about their views of the future of the library in France. I have both Bibliotheques Nationales on my agenda, as well as 2 University libraries and a municipal library (Lyon). It's an exciting time to be thinking about the future of libraries, and May is a fine month to visit Paris.

In a forthcoming article, "Lawful Personal Use," University of Michigan law professor Jessica Litman argues thoughtfully for "a view of copyright in which readers and listeners are as important as authors and publishers" and in which many of the uses we all routinely make of copyrighted materials would be deemed noninfringing -- indeed, wholly outside the scope of the copyright owners' exclusive rights -- regardless of whether they would satisfy the fair use standard:

Reading, listening, viewing, and their modern cousins watching, playing, running, and building, are central to the copyright scheme. We knew that once, but forgot it sometime within the past generation as the rhetoric of copyright increasingly characterized personal uses as piracy and theft. If we think about personal use as a guilty pleasure that is probably morally wrong, we’re going to lose it. If we recall that encouraging personal use is an objective that’s crucial to the copyright system, we may find the will to defend it against increasingly forceful encroachment.

And after all, she notes, "laws that discourage book reading end up being bad for book authors" as well.

Litman comes to no definitive conclusions as to what the precise scope of "lawful personal use" should be, but her article is well worth reading, and the debate she has started is well worth engaging in.

Just read a very interesting article at Salon, Tangled up in Seuss | Salon News, in which author Dan Brekke tells the story of a mashup of Dr. Seuss lyrics sung in the 60's style of Bob Dylan. On another site, one can access the recordings (still, but probably not for long). By the way, Dylan is not involved in any way, either in the creation, nor in the cease and desists, but you'll be surprised at how good an imitation they are.

The article is considerably more thoughtful regarding its fair use analysis than I expected, and tells both sides of the story quite well. It is sad to say that the conclusion, that the artist who created the mashup probably would not win his case based on current precedents and the facts about his particular use of Seuss' content, is probably correct. But Brekke goes on to note that this fact has spurred serious efforts lately to redress the tight strictures on creativity that such interpretations of the law have fostered. At least partly because we have such incredible ability now to take existing works in unanticipated creative directions, many feel that fair use must be given more breadth. I would go even further. I would advocate a loosening of the derivative right itself. For example, there could be a shorter limit on its duration (I think Lessig has suggested this) or the right could encompass less than it does now. Alternatively, some rights to create derivatives could be acquired by those who wish to use a work creatively by means of a statutory license, as the right to create a cover recording of already released recordings are acquired today. Copyright owners usually do not support that kind of allocation of their interests because it takes away their flexibility to say no, and to demand what the market will bear, but that's just the point: the allocation that most encourages creativity is not the allocation that always favors the current creator over those who are coming behind her.

If you are unfamiliar with the idea of the Long Tail, I urge you to visit the Website where this story is posted for more information generally, and of course to read this little note about lost opportunities, lost expression, lost creativity: The Long Tail: Long Tail enemy #1. It's about the failed effort to clear rights in music that was such an integral part of the 70's television show, WKRP in Cincinnati. The creative possibilities today involving new uses of existing materials just do not mesh with yesterday's processes, procedures and the law that backs them up. There are many other even more compelling stories than this one, many of which Lessig and others have chronicled. Though the subject matter is not in the same league with real war, it reminds me nonetheless of the lines from Blowin in the Wind, "How many times must ... before..."

An interesting story, if you haven't been following it -- John Palfrey - Blog Archive - Wendy Seltzer's NFL Experience: Just Half-Time, or Game Over?. Wendy is giving a talk today on the story of her experience dealing with the DMCA's notice and takedown procedure. The talk will be posted after the event.

The folks at American University's Center for Social Media, who have been doing good and interesting work on the subject of fair use in documentary filmmaking, have lately turned their attention to "participatory media". In a recent study, "The Good, the Bad, and the Confusing: User-Generated Video Creators on Copyright", they found some disturbing results. College students and recent graduates who create and upload videos to such sites as YouTube "showed themselves universally under-informed and misinformed about" copyright law and fair use, tending to think in "binary, good-bad categories" about what is and is not permitted:

In fact, respondents generally did not understand elementary facts about copyright, even though several noted that they had received both training and warning from professors about copyright use. . . . Although the great majority of survey respondents (76 percent) believed that the fair use doctrine permitted them to use copyrighted materials, none of the interviewees was able to describe this doctrine accurately. Two said that it stipulated a fixed amount of time, e.g., "over 15 seconds of someone else's song," or "less than 10 seconds." Another said that fair use is available "for purposes of public education," still another "if it's for a class project." The majority indicated that fair use would apply if there is no commercial transaction. "I believe in fair use laws," one said. "If I create something as an academic exercise, and never pursue monetary reward, then I believe I should be able to utilize other people's work." None of these beliefs is accurate. . . . [One] distinction on which respondents relied to justify or explain their practices was between an obligation to pay and an obligation to give credit or recognition. While payment was largely unjustified in their opinion, these users were very concerned about attribution as a sign of showing respect for artistry.

Even more disturbing: more than half the participants were studying or working in communications- and media-related fields.

To be sure, copyright law is neither clear-cut nor intuitive, but you'd like to think that all of the copyright education we've been doing in connection with P2P file-sharing would have had at least a little impact, particularly on those students interested in pursuing careers in copyright-intensive industries. But whether they result from simple lack of knowledge about, or self-rationalizing lack of respect for, copyright, it's views like these that fuel industry and Congressional calls for tighter restrictions and increased protections.

An interesting little brou-ha-ha has erupted at Harvard over the effort by students to provide materials the University makes available through an official portal, in alternative ways. As explained at The Chronicle: Wired Campus Blog: No Course Material Allowed on Student Site, Harvard Says, and elaborated a bit in the comments, many issues are mixed into the controversy.

It is not always so obvious to some that course materials that are available only behind password protection, are there because institutional rights to use them are limited, either by the terms of Harvard's licenses with the suppliers, or by the doctrine of fair use to the extent, if any, that Harvard relies on fair use to provide course materials to students in electronic formats. In either case, Harvard probably would be liable for its failure to protect the interests of the copyright owners in those works, either under its contracts, or under copyright law, if it failed to act in the face of complaints from the copyright owners.

There are branding issues also. The Harvard portal is appropriately adorned with Harvard's logo. The student site raises significant trademark use issues, but again, not everyone knows or fully appreciates these issues.

So, we are educators. Why not use this event to teach those who are clearly eager to create some of the rules of the road for creating? This is the perfect "teachable moment," as we in academe would say. We have here energetic, creative, positive students who see something they think is a problem and who do more than simply complain, or grumble about -- they actually invest their own time and energy to demonstrate what they believe is a better alternative (that's debatable of course, but frankly beside the point here).

But it gets even better: When one factors in the incredible power of Web 2.0 capability, not only are the students in line to learn something about intellectual property law, but Harvard (and all of us) are in line to learn something about the potential reach and value of information we have on our servers if we will open it to opportunity. Aside from the information that we must protect by limiting its access, there is a wealth of information on our servers that we could open to other uses. This is a great mutual learning opportunity, one I would jump on like a duck on June bug if I were there! This kind of thing doesn't come along every day.

Yesterday morning, I had the pleasure of hearing a featured story on NPR about fair use. Stanford blogger, Anthony Falzone links to the story, so if you missed it, you can listen now: Fair Use Project Profiled on NPR's Morning Edition | Stanford Center for Internet and Society [beta site].

The degree to which copyright and fair use are becoming part of mainstream consciousness is alternately amazing and horrifying. If you teach it, it's fabulous to be able to bring in news pieces, comics, magazine articles, etc. often of great importance, that nicely make your points for you, and that engage your students in the real world of creativity and the law's role in mediating conflicts. But after awhile you may begin to feel that no matter how many people know about it, its vagaries will continue to confound even the most knowledgeable (including lawyers and judges). Is it simply unsuited to the role it's expected to play today? If it is, how long until we figure that out and craft something that better serves our needs?

I am in France at the moment; typing in ... the municipal library in Lyon. The keyboard is way different! Hunt and peck or redo every 5th letter... Anyway, even here with little access to the Internet (the friend I am visiting doesn't do computer stuff), still, about half of my friends emailed me to watch a YouTube video at www.youtube.com/watch?v=CJn_jC4FNDo (that was hard!) about fair use, a mashup of Disney characters explaining the concept. I cannot watch it at the moment (no earphones at the computer), but apparently it is quite good. So, go watch, enjoy, and at worst, I will know about it in a few more days when I get back to my world of constant connection...

Oh, and I have an interview with an administrator here (at the library) who, I hope, might have some really wonderful news about digitization projects here -- perhaps a major step forward for the biggest city library in France! I will know more tomorrow. A bientot!

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.

I got a bit of a shock yesterday, right about closing time (of course). I got an email message forwarding a short essay by Duke University Law School's James Boyle, The inefficiencies of freedom. I've read many works by Boyle and always find his analysis to be thoughtful and thought-provoking. He's a strong defender of the public domain and I must admit that I generally agree with his opinion that the balance embodied in the copyright act has tipped too far towards the interests of copyright owners. As a result, I was stunned to see that he impliedly labeled as irresponsible large universities like mine that might consider including among the many sources we use to provide legal access to educational materials CCC's new academic license (a form of blanket license, as opposed to a transactional license based on individual works used). Somehow this license will sweep away all of fair use, as though one couldn't thoughtfully conclude that paying for permission was in many cases the right thing to do because a good part of what we do is not fair use. He easily equated fair use for creative uses (parody, criticism, commentary) with fair use for the massive duplication of works created, in many cases, just for our higher education market. I'll address that distinction in more detail below.

But next week I am going to have to go though his piece, sentence by sentence, in order to explain to my client why I don't believe it's irresponsible to consider, among the millions of dollars worth of databases we subscribe to, the tens (maybe hundreds) of thousands of dollars worth of electronic books we provide access to, and the tens of thousands of dollars in transactional license fees we pay for permission to duplicate works beyond what we consider fair, adding a payment to the CCC for, in time, pretty much the same works we license transactionally now. If anyone thinks we can turn back the clock on this transition to new models of content distribution and use, I respectfully disagree.

We license databases in part so that our faculty can provide access to their contents to students in connection with class assignments. We license ebooks in part for the same reason. We pay permissions expressly for the same reason. We do this because everything we do is not fair use, not in my book anyway. I agree that some part of our duplication and distribution of others' works is likely fair use, and we have our policy that describes what that part is. But it's not all fair use.

Because I do not believe everything we do is fair use, as an advisor to my client, I can't responsibly advocate that we avoid paying permissions when our uses exceed what we have determined is fair use, not where there is such a mature, efficient market for licensed uses provided expressly for higher education. As much as we may dislike the fact that the market for permissions and licensed works has been held numerous times to negatively affect the exercise of fair use, that is how the cases involving systematic duplication and distribution have gone. Further, I don't believe our not making a profit on these copies will completely flip the results of those types of cases.

Boyle doesn't represent a university as its copyright counsel. I'm pretty sure he'd insist his was not legal advice if asked directly. If it is not legal advice to a client who's counting on him to give his best estimate of the risk of a course of action, what is it? It strikes me as an emotional plea more than an intellectual argument.

Boyle is singling out, as incompatible with fair use, this particular way of paying for uses we make of others' works. He's afraid that if your university just writes a check to CCC for, let's say, $100,000, so that all the works that are covered by the license (the "repertoire") can be used in the typical ways we use such works in connection with classroom assignments without having to report how many copies were made of which particular works (that is, efficiently), it becomes easy to ignore the question of whether a particular use is a fair use. Who cares whether it's fair use or not? And Boyles' concern is that if we don't care about fair use here, fair use will disappear altogether. Sounds logical, except that fair use is not a monolithic all or nothing proposition.

The fair use test comes out differently depending on the facts about each use. His argument is not that different from saying that if we don't rely on fair use to copy an entire book, we'll lose the right to quote a single line from a book. Those two things are qualitatively, not just quantitatively, different. Creative uses and duplicative, iterative, plain old copying and distributing uses are very different and the courts have consistently recognized that. The kinds of uses that might be refused by the copyright owner, those where we most need to rely on fair use, creative, critical, scholarly uses, are qualitatively different from plain old copying. The recent "Grateful Dead" case illustrated this kind of discrimination quite nicely. Even in the face of evidence of a market for permission to do precisely what the defendant wanted to do, the court upheld fair use for a creative purpose. On the other hand, we see cases where there's massive copying and distribution, but *no* viable market for permission (the Google/Perfect 10 case), and even where profit is involved, the court upheld fair use. These cases say to me that creative uses have a strong claim to fair use; even duplicative uses without a market for permission have a strong claim to fair use. But duplicative uses where there is a functional, efficient market for permission are not enjoying the same strong claim in the courts. I don't think the courts are going to begin any time soon to paint with the broad strokes that Boyle fears.

I too believe that we have to draw a line in the sand about fair use. For example, I greatly admire the effort that has been made to address the "permission culture" developed in the documentary film industry and think that kind of effort should be made in industries that rely on the use of images, such as art history publishing. I just don't agree with Boyle about which side of the line our systematic, massive copying and distribution of classroom materials falls on. In theory, maybe some time in the past, it all, or some large part of it, fell within fair use. But with today's markets for licensing and permission, and courts that are all over that concept when it comes to this kind of use, I have come to believe that that time has passed. There are cases where I still feel we reasonably rely on fair use for classroom materials, but they are a small percentage of all our uses.

I don't think Duke University is asking Boyle to advise it about liability. But even if Boyle were Duke's copyright counsel, Duke will base its decision about what to do on many things in addition to its fear of, or fearlessness about, liability. It might, if it wants to, consider whether it believes that all fair uses will be lost if an efficient market for permission to systematically make and distribute copies of classroom materials further develops. I would hesitate to call Duke's decision irresponsible if it decides it doesn't believe that.

What do you think?

I read a press release on the Liblicense listserve this morning from Wiley-Blackwell announcing a new series of journals: "Wiley-Blackwell Launches Review Journals in Social Sciences and Humanities -- Cutting-edge functionality added to Compass journals," the title read. I went to visit the site (Compass Journals and glimpsed the future of publishing in a world of open access (OA). Many people still vigorously debate whether OA will result at some point in library cancellations of journal subscriptions. Theoretically, if all journal articles are freely available on the Web, why would a library subscribe to a database containing them? Sounds rational enough, enough to cause any thoughtful publisher to 1) resist OA or 2) accept OA and find a way to build a business on its back with customers you already have ...

Publishers are doing both. In addressing their admittedly different but pretty much parallel challenges to copyright control, so is Hollywood (see Lawrence Lessig's OpEd piece in the Washington Post. At last, so it the music biz.

I don't believe that resistance will thwart OA (or remixing, or p2p file sharing). OA has such obvious advantages for the "progress of science and the useful arts" to borrow a line from the Constitution. Nevertheless, resistance slows it down long enough for the new business models to start to take shape. Far from saving libraries money, however, OA is going to be a gold mine for publishers who can offer brave new services built on the treasure trove of high-value articles that are going to be out there free for the taking.

Is this a bad thing? Certainly not. It's the American Way (at least), and libraries will buy the services (rent the services actually), and prices will continue to spiral like they always have because that too is the American Way. If you are not growing (profits) you are dying.

Debate about this seems academic at this point. While I'm not that concerned about the future of Hollywood or the music biz, I do care deeply about the future of scholarly publishing and I applaud those at the helm of our University Presses who spend as much of their time as possible concentrating on new business models, not just debating whether OA will cause subscription cancellations (or whatever else it might cause). We have to figure out, like Wiley-Blackwell (and Lucasfilm and EMS in their worlds), what we can do to take advantage of this new OA, socially networked world of digital scholarship, either as businesses, or as more integrated parts of the institutional framework -- whichever works.

To follow up on Georgia's post yesterday about the Computer & Communication Industry Association's FTC complaint re "fair use," the CCIA has posted a copy of the full complaint. It is worth a look I believe, at least to see how technology giants such as Google and Microsoft have committed themselves on paper to the principles of fair use. The complaint contains examples of what the CCIA regards as improper "copyright warnings" used by media and print content providers, as well as what the CCIA regards as more accurate statements on fair use rights, such as the language used in the Nimmer copyright treatise.

The Library Copyright Alliance also submitted a letter in support of the CCIA complaint. The LCA is composed of the American Library Association, the American Association of Law Libraries, ARL, the Medical Library Association and the Special Libraries Association. So, it is good to see the major representatives of the profession join in the fray.

While I have no idea how the FTC will view the CCIA complaint, it is at least generating considerable media attention which should heighten awareness of the fair use concept in the broader public.

The Wall Street Journal is running an article today, "Google, Others Contest Copyright Warnings - WSJ.com," that describes efforts to reign in the absolute statements and warnings we often see content owners use to describe their rights. From the ubiquitous baseball and football absolute prohibitions to publishers' statements that no part of a work may be copied in any form, these notices have always been problematic in that they misstate the more nuanced contours of copyright owners' rights. But never before have so many heavy-weights complained about it. I see this as more evidence of a growing awareness that fair use has an important role to play in copyright's balance of interests. It's not just about academics and book reviews. It's about whether we're going to have a culture of paying for every single little thing that we can do with a creative work, or whether use rights will be more generously defined and enforced. Absolute warnings, like digital locks, discourage uses, including creative uses. It will be interesting to see whether this Industry Association will be better able to make the point than academe typically is. On the other hand, perhaps it is the success of initiatives like the Documentary Filmmakers' Statement of Best Practices in Fair Use that have brought us to the point where others are eyeing the permission culture with the kind of scrutiny it needs.

I've just finished reading Pam Samuelson's initial thoughts on overhauling copyright law, linked from Boing Boing, Boing Boing: Proposal to reboot and de-cruft US Copyright Law. This is a very good framework document, easy to read (sort of like the law she's suggesting we need), and very thoughtful. If anyone could pull together the kind of massive project she's talking about, Pam could.

Still, she is very realistic about the likelihood that actual legislative reform would result from the effort. She knows it's highly unlikely at least for 10 years out and that, once started, it would take another couple of decades to complete. She sees a lot of other advantages to her effort though, even if we still are stuck with our bloated 1976 Act, but I'm not so sure how realistic they are.

What she doesn't give voice to is the pessimism I sometimes feel about the likelihood of the law's becoming so irrelevant that perhaps sooner than the next 2 decades, neither copyright owners nor users will be paying much attention to it. We will all have opted out of it to a large degree -- users by ignoring it; owners by licensing and or drm'ing around it. Those directions don't sound so good, but even a best case scenario could see people having opted out by turning to other ways to make a living off creative works (sort of what John Perry Barlow predicted almost 14 years ago). The signs that this strategy is increasingly employed are popping up here and there. Still, it's like the "innovator's dilemma." Only small potatoes at first, then gradually, the alternative business models begin to improve, pick up steam, and one day, they overtake the old ways of doing things, those industry giants who couldn't see the magic in the new ideas because there wasn't enough money in them, or their current best customers weren't interested. But for the existence of the state-granted monopoly that is copyright, in fact, the tide for the creative industries would have turned long ago. Copyright has worked to make creative industries innovation-proof to a much larger degree than other industries. Perhaps to their detriment ultimately. More certainly to the detriment of the public generally.

Here's one of the subjects I've mentioned in a few places in action: the rhetoric of fair use.

The technology trade group Computer & Communications Industry Association (CCIA) recently filed a complaint with the FTC regarding the misleading and overreaching copyright warnings that appear during sports events, on DVDs and books, and other places. Georgia wrote about the complaint last month. I'm highly sympathetic to that particular endeavor, as I find such notices blatantly misleading. Those notices are one of the subjects I'm regularly asked about by the people I work with- mainly librarians, students and educators. ("Can I show this video to a class when it's class related? What if it says "For Home Use Only?")

The head of the industry sponsored Copyright Alliance has written a response on CNet entitled "Fair use is not a consumer right."

Georgia earlier reported on the CCIA study describing the economic value of fair use. That study and responses to that study have shed light on a few areas.

We know the basic theory of copyright in the U.S. Given an exclusive monopoly, creators will profit from their works. Therefore, creators will have an economic incentive to continue to create. The public benefits through access to those works via exemptions (including fair use) and the public domain. The theory deals with financial incentives, and a great deal of copyright research comes from economics or is framed in such a way that makes economics the most important value. I don't believe that framing is necessarily sufficient when looking at copyright, but it's interesting to see some of those methodologies applied in this way.

The World Intellectual Property Organization issued guidelines for industries to determine how much copyright law contributes to a given country's economy. The CCIA study basically uses those same guidelines (with a few modifications) to determine the value of fair use to the economy. It's an interesting approach for a few reasons.

If it's assumed that the WIPO guidelines are fair and accurate, then there's a good chance that these figures are at least as valid as the copyright groups'. Patrick Ross of the Copyright Alliance soon issued a response to the study.

Slashdot reports a study commissioned by the Computer and Communications Industry Association (CCIA) on the economic value of fair use. Peter Jaszi, American University Washington College of Law was involved. Peter has been a strong proponent of fair use, and one who has taken decisive actions over the last several years to really make a difference in how we perceive and rely on fair use. The Best Practices document for Documentary Filmmakers is a superb example of such action.

This latest effort reports that fair use adds more to the economy than the copyright industries do, as the figures in the snippet at Slashdot illustrate. But what kind of analysis lies behind the admittedly eye-catching numbers? The study identifies certain economic sectors as fair use industries, industries for whom reliance on fair use is critical to their business, and analyzes the contributions of these industries, their growth, how many people they employ, and other measures. It concludes that fair use contributes to the economy in some proportion directly related to the value of these industries. I have not read the whole report yet, but it certainly is an interesting angle.

One of the sectors identified as a fair use industry is education institutions. Statistics about the contribution of higher education, in particular, to the economy are probably very widely available. I know that we have had to make the case that dollars invested in us are repaid many times by economic growth (nevertheless, we do not manage to reverse the trend towards less and less investment from our state legislature each session). But this set of statistics has not until now been brought to bear on the question of the extent to which our reliance on fair use actually benefits the economy.

Lolly Gasaway reported recently on the Perfect 10 v. Google case, how the court really looked at the social benefit provided by the alleged infringers, departing somewhat from a focus on the harm caused by the infringement. I followed up with a short article in CIP's Newsletter, further expanding on this theme. The court's analysis, as much as its ruling, was very important for its shift in emphasis. It is this shift in emphasis that I think suggests the possibility of more solidly undergirding the scope of fair use involving nonprofit educational uses. Still, it is important to note that there were only speculative damages to counteract the public benefit of Google's fair use in Perfect 10 v. Google. Where copyright owners may have little difficulty demonstrating very real harms to their licensing revenues, the outcome may not be the same.

This report does provide food for thought in the recently invigorated struggle to push back the heretofore shrinking boundaries of fair use. It will be interesting to see how these findings might be practically implemented.

Bill Patry, in reporting on a case involving the issue of which version of a screenplay to compare to another work to establish the similarity of an infringing work to the work it supposedly infringed, The Patry Copyright Blog: And in the end, touches on a matter of great importance to all creative enterprises: the implications of "intermediate use" as fair use.

Intermediate use was established in software cases in the 90's (Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1527 (9th Cir. 1993). For an interesting discussion of the Sega case and a later case also from the 9th Circuit, see Robert Donahoe's article. This concept that intermediate uses are fair means that software engineers can make a copy of a work for the purposes of getting at the ideas inside it, for example, for reverse engineering software. In the end, the new software, when compared to the original, must not infringe, but it's ok to have made a copy in the first place to borrow that which is legal to borrow.

This idea is not limited to software. Patry indicates its usefulness in the film case he reviews above, but also comments generally that the principle allows us to start with another work and use it as we like, so long as our final version of our work borrows only that to which we are legally entitled. This would include ideas of course, but also bits and pieces that would constitute fair use. Making intermediate use of others' works is a staple in the art world, in music, and increasingly, of all forms of creativity on the network. If you Google 'intermediate use,' you'll find many examples of cases that support its status as fair use in a wide variety of contexts. This is another example of the expanding understanding of the vital role fair use plays in the creation of new works.

On the other side, however, there are still vast holdouts against the idea that fair use is vital. Patry references sampling in another blog post: Amen Brother). The video he links to explains both the importance of fair use to the music industry, and the erosion of protection for it in the last 10 to 15 years. It's well worth the 18 minutes that it takes to listen to the video (yes, listen to... it's not much visually, but really tells an important fair use story).

Lessig' gave a talk about remix culture back in March at TED: How Creativity is Being Strangled by the Law. His talk was just posted this month. For anyone who has seen him give a talk in the last 1 - 2 years, this won't be new, but it's very streamlined and very succinct. The video only runs about 18 minutes and it's excellent -- watch this!

Lessig emphasizes the importance of competition, that "more free" can compete with "less free," that artists' choice (to distribute differently, for example, to make their own works more freely available) is the key to defeating monopoly, and that laws that criminalize our children's creativity are corrosive -- and we can do better.

I have been developing an argument that touches on these same themes at Mass digitization ~ changing copyright law and policy, and in fact I had just posted this new segment last weekend that talks about how the sheer availability of so much good free content online inevitably puts pressure on even Hollywood and the music industries to stop making it hard for people to get to their content (DRM and subscription barriers, among others). Check it out.

After 6 weeks of drafting, posting, tracking blog statistics, and weekly writing in a journal about the experience, I have just completed my blogging experiment at Mass digitization ~ Changing copyright law and policy, by posting the Conclusion today. Here's the first paragraph:

The story of mass digitization’s effect on copyright law and policy is the story of confronting and eventually calming fears. Sometimes the only way to calm fears is just to stand up, stride towards the light switch, and show that there’s nothing to be afraid of. Turn on the light. Look under the bed. Open the closet door. See? There’s nothing there. Didn’t Franklin Roosevelt say something about this?

Since I announced the start of the experiment here on Collectanea, I thought I would announce its conclusion as well. If you haven't visited yet, or if you visited early in the drafting process, you might like to visit again to read the entire draft (7 fairly short sections). Be sure to check out the Project Resources page. It has links to all the online materials referred to in the draft, and other materials that support or illustrate the argument.

It has been a very interesting experience to draft in blog-style. My next step will be to polish the draft and give it journal-style. I will be able to compare the two drafts and perhaps say something useful about how the styles differ. I also have skads of data about daily page views, time on the pages, and how many pages were viewed per visit. It's amazing what Google Analytics can tell you about your blog. If it weren't for Google Analytics in fact (and other blog statistics programs), the story we would relate about our experiences blogging would be far removed from the truth because without stats, we only know readers are there if they comment. Hardly *anyone* comments though. The comment rate on Mass Digitization was roughly .2% -- that's point two percent, not two percent. So, for 1000 pages viewed, the blog received 2 comments. This rate is consistent with rates I've read in broad studies of blogs. Of course, there are exceptions, but most of us are not really visibly building a community of commenters.

But we are reaching people. Those 1000 pages viewed represent about 500+ people who stopped by, even if only for a few minutes. So, the blog entries did get viewed in whole or in part by many folks who might not read the article in its polished journal-style form. It is an interesting hypothesis, how blogs affect scholarship. I will be posting my paper on that subject at the Crash Course when I complete the paper in about 2 weeks. And Mass Digitization will be published on CIP's Website in the spring.

If you are one of those 500+ people, THANK YOU! It is very nice to know you are there --

Not too much news yet, but Stanford's Fair Use Project has signed on as co-counsel in a case that pits fan site collected information, in published form, against the copyright owners of the Harry Potter series: Fair Use Project to Represent RDR Books in Harry Potter Lexicon Dispute | Stanford Center for Internet and Society [beta site]. There's a quote from and a link to the press release on the Stanford site.

Interesting points: the fan site was started by a librarian!

This is going to be a very interesting case. It will either join the cases Jon Band grouped together as broadening the scope of fair use for creative and transformative works, about which I blogged earlier this week, or it will throw the progression a curve.

As more facts come out about the book (A Harry Potter Lexicon) and the way counsel plans to defend, there'll be more to talk about (we'll know more about which cases are relevant), but at the moment, one case is sticking in my memory, a case that did not go well for fair use in the context of the use of information about a copyrighted work. It was a case about the tv series, Seinfeld (Castle Rock Entertainment, Inc. vs. Carol Publishing Group, Inc.). The defendant had created a sort of trivia quiz book about the show's plots, themes, particular series events, etc. (the Seinfeld Aptitude Test). The court could have characterized these things as *facts* -- it is a fact that in the episode called [whatever], Seinfeld said [such and so]. But the court did not treat those events as facts. Rather, it treated them as the creative property of the copyright owners, so borrowing them, or using them, was an infringement. The defense of fair use did not apply, however, because the court concluded that the trivia quiz approach was not transformative.

Ivan Hoffman did a very nice comparison of the fair use arguments in the Seinfeld case and The Wind Done Gone case (Suntrust Bank vs. Houghton Mifflin -- the story of Gone With the Wind told from the slave's perspective), two fair use cases that went in opposite directions, on the issue of transformativeness.

Both of those cases, and this one, can be viewed through the lens I spoke about yesterday (the post about Jon Band's analysis of recent fair use cases) -- where transformative is the word used to explain the court's decision, but not used really to decide the case. The decisions, I suggested, are more of a "stand back and think about how this case *should* go" process. Read especially the Seinfeld court's description of the back cover of the book at issue (in Hoffman's analysis). It reveals quite a bit less of a critical commentary motivation than is apparent from the text itself of The Wind Done Gone. A court might think long and hard about whether we *need* to have works in the nature of The Wind Done Gone, and therefor must preserve the right to create them by including them within the scope of fair use. It probably would not be deeply troubled to dismiss the Seinfeld trivia quiz book. How will a court feel about the Harry Potter Lexicon?

Jon Band has summarized three recent fair use case holdings in an article entitled, Educational Fair Use Today, published by the Association of Research Libraries. He notes that the cases all found fair uses in commercial contexts (artwork, a search engine case involving images, and the use of small copies of posters in a coffee table book) and so strengthen fair use, particularly when fair use is employed in transformative circumstances.

Most importantly, he believes that transformative is taking on a new meaning beyond the idea of changing the nature of the work, like a parody changes the underlying work or scholarly criticism uses another work. Two of the three courts find uses transformative because the defendants "repurposed" the work, that is, they used it in a way that was different from the use intended by the copyright owner. He goes on to suggest that uses in higher education such as exposing students to journal articles that were written for scholars, not students, is arguably repurposing the articles and thus makes a transformative use of them.

Of course he notes that this suggestion might not be accepted by publishers. On this we agree. I can imagine their reaction -- If using journal articles in classroom instruction is a transformative fair use, I suppose we could stop licensing databases of articles for our students and just license them for our much smaller numbers of faculty members, at a tremendous savings. At UT that would subtract about 45,000 full time equivalents from our user base. Publishers would raise an eyebrow, to say the least.

But, even beyond the argument's practical problems, I would caution that it may put the cart before the horse in assuming that courts reached the conclusion that a use was fair on the basis of its being transformative.

In particular, in the search engine cases, it appears to me that transformative is used to explain decisions, not to decide them. Consider Perfect 10 -- it seems to me that the reason the court found the use of the little naked lady pictures fair was because to not do so would jeopardize an amazingly efficient publicly useful facility that makes sense of the billions of documents, images, and other works on the Internet. That's a compelling argument for finding Google's use fair. So the court needs to explain it in terms of the four factors. No problem...

The situation Band describes involving the use of journal articles by students in the classroom does not, in my opinion, offer such a compelling argument, (in other words, a judge is not likely to feel compelled to accept this as a fair use), and if the judge is not compelled to find the use fair, he will have no need to explain the use in terms of its being transformative. So it won't be transformative. The fair use test is just so malleable...

Jon does suggest other uses that might be transformative, uses that more creatively embed an existing work in a new context, rather than just reproduce it for reading by thousands of students. These offer more to think about in terms of pushing the boundaries of fair use back to a healthier position, but at a school as large as mine, the implications for decision-making of a process requiring such subtle analyses are profound.

I think fair use cases make the most sense if you look at them from the perspective of which litigant had/has compelling need on their side (I am such a pragmatist). Creative uses often make for very compelling cases (except for Koon's first case, Rogers v. Koons, and the entire music industry). So do scholarly criticism and commentary (the recent Shloss case that settled). So do search engine cases. But schools refusing to license databases of articles, well I guess it could happen, but I wouldn't put my money on it.

Jon and I don't disagree on much, and I very much appreciate his doing us the big favor of bringing these three cases together in one article, emphasizing the role that the courts are playing to strengthen fair use in creative contexts. This is tremendously good news and I am very happy to see this development. Where we in higher ed take these arguments remains to be seen. But we should wholeheartedly celebrate the rolling back of the relentless shrinking that seemed to be the future for fair use just a few years ago. I look forward to further developments in this area.

There was a fair use symposium held at Columbia Law School last Friday. Rebecca Tushnet posted her notes from 3 of the events: Paul Goldstein's keynote (43(B)log: Paul Goldstein on copyright in context), Panel 2, which looked at the question of how the four factors are structured and used in court cases, and Panel 3, which deals more expansively with the whole idea of fair use. Panel 1 notes are not yet posted, but it would be a good idea to visit Rebecca's blog now and read about the events she has already posted. The symposium appears to have been a very heady thing, with lots of theorizing. Not a lot of nuts and bolts stuff here, but very, very thoughtful analysis of both theory and function. For another look at Paul Goldstein's keynote, visit Fairly Useful, where Matthew Sag posted his notes from the talk.

Several points piqued my interest: there certainly was a grounding of the discussion in the realities of how courts decide cases (by what they think the outcome should be, mainly focusing on factor 1 and 4). And it was very apparent that some of the participants take the "author's rights" or "natural rights" starting point and others take a more utilitarian point of view about the purpose of copyright. As David McGowan has pointed out in Copyright Nonconsequentialism, you come out in a different place on how you think fair use should be interpreted (or any other aspect of copyright law) when you start in a different place.

All in all a very interesting discussion. For additional commentary about fair use, this symposium, and a weekend NY Times article about the JK Rowling Harry Potter fan site Lexicon case, visit Madisonian.net's blog post (Mike Madison) titled, Does Fair Use Matter? Madison pulls together thoughts about the scope of copyright's murkiest doctrine from a number of our best thinkers on the subject.

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!

Yahoo! announced today that it will be supporting Semantic Web and microformats to improve search results for structured data (as reported in ReadWrite Web: And Nerds Became Kings: Yahoo! to Announce Semantic Web Support - ReadWriteWeb). The Semantic Web has been a dream of Tim Berners-Lee for a long, long time, and up until now, pretty much way behind schedule because it just seemed, well, too hard. Things are changing.

They always do.

You know how RSS allows you to get feeds from your favorite blogs and other newsy Websites? That functionality is one example of how we are able today to break the offerings on a Webpage up into small parts and send them zipping around the Web. The text is separated from the formatting on our page, the way the text is displayed isn't carried around with it. That enables a snippet of our text, maybe the first paragraph for example, to be displayed by someone, anyone who subscribes to our feed.

Semantic Web potentially micro-bites the content even further -- into little bits that are identified as to precise type: this part is a last name; this part is a first name; this part is a phone number; this part is a set of key words; this part is an abstract, etc. People might tag text down to this level to enable its extraction and manipulation, its readability by computers (see Michael Jensen's article, The New Metrics of Scholarly Authority, about the importance to Authority 3.0 of being computable); its reorganization for other purposes. It gets treated like data rather than information or knowledge (don't let's debate what those things are just now).

What might this mean for copyright policy and practice? Wow, it just sends the mind reeling. I can't begin to imagine the implications, but one thing seems clear: a Semantic Web has the potential to further dramatically reconfigure the relationship between copyright owners and those who wish to access and use their copyrighted works. Implicit in the markup for computer recognition, extraction and manipulation is a license to actually do those things. Atomized text and images, sounds, audio-visuals. Wow. Might a whole new round of fear and loathing be right around the corner? Or will this just add to the steady pressure on copyright owners to open up their works to use and reuse -- if they want attention at all?

I was reading about amateur photographers in Tel Aviv refusing to accept that they couldn't take pictures of a building visible on a public street (see The Patry Copyright Blog: Israeli Flashmobs and Pictures of Works of Architecture), and it reminded me of a couple of summers ago when guards or the sculptor, or someone tried to stop tourists in Chicago from taking pictures of "the bean," this fabulous reflective, monstrously large, bean-shaped sculpture in a public park there. The Internet was plastered with pictures of the bean, despite the assertion of a right that ran counter to common sense. People take pictures of things like the bean. They just do. People frankly can't believe anyone has the right to prevent such a thing. Where is the harm, they wonder.

These are examples of people just saying no to overbroad claims of copyright protection. Check out the photos of Opera Tower as mobbed by photographers, and the bean, in Chicago's Millennium Park (205,000 images). This is one of the risks of passing laws that run counter to common sense and fairly run-of-the-mill human behavior -- increasing disrespect for the law. It is regrettable, but more importantly, it is preventable. Congress needs to stop the bloating of our copyright laws.

I really enjoy reading Bill Patry's blog posts and encourage you to subscribe to his feed and visit as often as he posts. I don't think he misses a single copyright case (after all, he has to stay up on even the most arcane copyright decisions because he has to keep his multi-volume treatise up to date -- lucky for us). But to really appreciate why Bill's blog is such a fabulous resource, you only have to spend a fraction of the 20 years I've spent reading summaries of these same cases in the staid legal bulletins. Oh, yawn.

Bill, amazingly, can make the most esoteric of cases interesting and even amusing, as he connects the dots for us to other issues, other cases, and infuses the whole exercise with his wit, wisdom and charm. And I never read a post without envisioning him in his outlandish tennis shoes, his sort of personal "mark of distinction" other than his incredible professional distinction.

This morning's post is no different: The Patry Copyright Blog: Fold Your Cards and Go Home. A silly case that never should have made it to court at all, let alone to a full decision of the court. But that's what got me to thinking -- as is so often the case when I speak about fair use and other aspects of copyright law that involve risk assessment (that is, you can rarely be sure that you are right about your legal analysis, so your tolerance for ambiguity and risk has to be figured into your decision-making process), I always mention as one component the risk of actually being sued. After all, nearly every dispute is settled, most at the initial stage after a cease-and-desist letter arrives and the accused has the good sense to talk with a lawyer about it or google some basic legal information on the Internet (yes, you can do that) rather than just chunk the nearly unintelligible legalistic letter into the trash. But when I see cases like this one, it reminds me that lawsuits are not as remote a risk as I sometimes think. There are bull-headed plaintiffs and bull-headed defendants. One of them is right and one is wrong. Sometimes it's more obvious to the rest of us which one that should be; sometimes it's a really close call and the fight is worth it to clarify an important point. But sometimes it's just ridiculous. Usually, if it gets that far, there was an attorney involved who got in over her/his head. So maybe that's the key: if you are super-invested in your claim or your defense, at least do yourself the favor of getting an attorney who really knows the law and who won't just indulge you in ridiculous filings. Sober assessments by all parties, and their lawyers, will result in settlement for just about anything, most of the time, way before anyone actually files a single document.

To the relief of many a high school, college and university administrator, Turnitin's system for helping teachers identify possible cases of plagiarism got a pass from the judge earlier this month. AV v. iParadigms (District Court, Eastern District of Virginia).

If you are not familiar with Turnitin, it's an application that teachers can use to compare their students' papers with Turnitin's database of previously compared papers and papers available from other sources to detect instances of suspicious similarity. Turnitin enables teachers to investigate originality, and at the teacher's option, take action as warranted. Students have to agree to a set of terms and conditions when they submit their papers, among which is a term that relieves Turnitin from any liability for anything resulting from the use of the system (a pretty vanilla disclaimer of liability, actually).

Of interest to me, having been asked on many occasions to opine about the legality of the "archive" feature, that is, the feature that saves a copy of each submitted paper to become a part of the comparative database, the school district in this case had authorized Turnitin to archive its students' papers, and the students had to agree to use the service or get a zero on the assignment requiring it. Thus, the students were not given a real choice about whether to agree to have their papers archived. I always thought that it was important (and so advised) to give the students a choice up front, when they signed up for the class, so that they understood that use of Turnitin was a term of the offering of the class, that one would agree to the terms of the Turnitin user agreement. Students confronted with this choice really have a choice in our higher ed environment anyway, where use of the application is rarely across the board (ie, only some faculty elect to use it). This case tested a tougher proposition, from my perspective: whether a student without a real choice about using the service can agree to the terms of the user agreement (having had to in order to get a grade) but then *modify* those terms by writing on the paper at the time of submission that the student did not authorize archiving. That's what the plaintiffs in this case did, and their attorney argued that Turnitin's archiving of the papers in violation of this attempt to change the user agreement terms infringed the students' copyrights.

No way, says Judge Hilton. (Ok, he didn't really say that. That's what I am saying.)

The court determined that the parties had entered into valid agreements (clickwraps are enforceable agreements), that the limitation on liability was enforceable and that the attempt to modify the terms of the contract failed because the user agreement indicated immediately (in its first line) that use of the service was conditioned upon the acceptance of the terms without modification. A number of other claims and defenses were all rejected by the court, and I'll leave it to the really curious to read the rest of the case, but I do want to note that the court also undertook a fair use analysis.

It should be noted that iParadigms pled fair use as an alternative defense in the event that its contract terms had failed to protect it from liability. Because the court found that the contract did in fact protect iParadigm from liability, it would seem that the fair use analysis was dicta. It was unnecessary for the court to undertake the analysis to dispose of the case. But it did the analysis anyway. Thus, while I would hesitate to cite this analysis, it does give us some insight into how this court views the 4-part test. The analysis leans heavily on recent cases like Perfect 10 v. Google, that compare speculative harms to copyright owners with the enormous public benefit of transformative uses like indexing and come to the entirely unremarkable conclusion that such uses are pretty much exactly what fair use is supposed to be all about. Let's see, Virginia is in which circuit.... the 4th circuit. So we now have a very nice representation among the circuits (9th, 2nd, 4th) of recent fair use analyses that find that massive copying and using in their entirety, even creative works, for new commercial uses that provide significant public benefit, is a fair use 1) when there is no or only speculative market harm to the market for the original (all of the Google search cases so far) and 2) even in the case of a mature market for licensing the works (the Grateful Dead poster case, Bill Graham Archives v. Dorling Kindersly). Lookin' good for creative fair use.

I have heard some folks gripe about these types of cases, that uses involving the Web and indexing and such are not really transformative. Courts don't seem to buy that right now. Maybe it's just that transformative is the only label we have to clearly identify uses we just can't afford to subject to the control of individual copyright owners. There simply are many more uses in this digital era that benefit the public without seriously interfering with incentives to create, uses that need to be free from transaction costs, permission fees, holdouts, etc. I am quite convinced, in fact, that the numbers of uses that really ought to be outside the control of a creator of a work are much larger than even these cases suggest. But, it's expensive to broaden the range of free uses one fair use case at a time. I guess we can thank these 4 students and their attorney for taking one on the chin for the greater good. Or, put another way, the lower courts are doing what Congress seems incapable of doing -- ratcheting down instead of up.

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.

Anthony Falzone posts at Stanford's Center for Internet and Society that the Center will represent the producers of the controversial film, Expelled: No Intelligence Allowed: Fair Use Project to Represent Premise Media Against Yoko Ono Lennon and EMI Records. The plaintiffs in this case want an injunction and they want the 15 second clip of John Lennon's "Imagine" removed from the film. No mention of damages.

Falzone says the song is criticized in the documentary for its anti-religion message. Here are some of the lyrics as reported on OldieLyrics.com

Imagine there's no heaven
It's easy if you try
No hell below us
Above us only sky
Imagine all the people
Living for today...

Imagine there's no countries
It isn't hard to do
Nothing to kill or die for
And no religion too
Imagine all the people
Living life in peace...

It is really hard for me to understand the film producer's use as something other than a fair use/First amendment claim and the two plaintiffs as other than very unhappy that people whose views they don't like are using Lennon's lyrics to make their point (that is, criticizing Lennon's lyrics as exemplifying the social phenomenon they allege -- the suppression of religious views in academe). Could this be any more classically, heart of fair use? What am I missing here?

About 12 years ago, I was involved in the CONFU effort to define, or rather, provide guidance for, fair uses in educational contexts in the then-emerging world of digital networks. We worked on electronic reserves, multi-media educational materials, interlibrary loan, distance learning and the use of digital images. This was in many ways a formative experience for me. I had been practicing law only about 7 or 8 years and concentrating on copyright for about 5. It was a monumental effort and it went on for a very long time and it resulted in as close to nothing as you can get without actually being nothing. After all, there was a report, there was a lot of talk about the "guidelines" over the next few years. There were fair use workshops, seminars, series of town hall meetings and conferences. But there was not much in the way of clarity and understanding. And the guidelines were universally denounced, at worst, and simply restated at best. I don't think very many universities actually follow them. Really. They just don't work. They were as impractical as you could get. What on earth were we thinking?

I am so excited to see that a new approach is emerging that cuts out the dark heart of what was wrong with those efforts and the ones that preceded them (the Guidelines for the Educational Use of Copyrighted Materials that Congress forced into being in 1976 with the revision of the Copyright Act). This new effort has a different name. It goes by "best practices." I watched in awe and amazement as the Center for Social Media and American University's Washington School of Law rolled out the first effort, the Best Practices for Documentary Film Making. Pat Aufderheide and Peter Jaszi orchestrated this coup and are to be roundly congratulated, for they have followed it up with another feat -- Best Practices for Fair Use in Online Video. These efforts provide a qualitatively different kind of guidance to those who use others' works in their creative efforts. They say, "this is what we have learned through undertaking a thoughtful process of inquiry, research, and analysis about reasonable practices today in the use of others' works." The effort does not attempt to force a compromise between content owners and uses, envisioned as adversaries. It recognizes that we are *all* owners and users of others' works. Even the "big" owners are users of others' works and would benefit from more reasonable approaches to fair use to enable creativity. But educators in particular cannot thrive without a reasonable scope for fair use.

Harvard's Berkman Center is in the early stages of designing an effort that builds upon the Center for Social Media/Washington School of Law's efforts as well as other recent efforts, for example, The Cost of Copyright Confusion for Media Literacy, produced by the Media Education Lab at Temple University and Center for Social Media and Will Fair Use Survive? by the Brennan Center for Justice at NYU. It is called The Right to Teach: An Educational Fair Use Project. The paper is in the form of a proposal at this point, and it asks for feedback and for collaborators. Anyone who is interested should get in touch with Adam Holland, as the paper suggests.

Pat Aufderheide was a speaker at our Center for Intellectual Property's Annual Symposium this year, in May. She spoke about these efforts, especially the newest one, the Best Practices for Online Video. She said that the secret to their success so far has been that they did not seek stakeholder compromise. As I had described the "guidelines" phenomenon as well as the process that results in legislative "compromise" in my presentation at the same Symposium,

... "negotiations among the stakeholders" are a sham. We can no longer pretend that locking the powerless in a room with the powerful will produce a compromise in the public interest.

The failure of every such "compromise" effort over the years (TEACH Act, all existing fair use guidelines, Section 108 study group, current efforts to deal with orphan works, etc. etc.) is proof enough that, far from achieving their stated goals of promoting reliance on fair use or other statutory exceptions, they alienate the creative community, result in hostility towards the law and legal processes, and ultimately chill the very creative energy the law is supposed to encourage. Enough is enough.

So I am celebrating the new Best Practices for Online Video. These examples of uses that do not threaten, but support and encourage creativity in a very changed environment of widely dispersed creativity are such a welcomed breath of fresh air in what had become a stale and smoky window-less Washington back-room (literally). And anyone wonders why Congress' approval ratings are at 9% (and sinking).

All of which reminds me of a very interesting essay by James White that I read over the weekend. It was delivered at a conference last summer titled, Law and Democracy in the Empire of Force: Law, Economics and Torture (scroll down in the table of contents for a link to the article). Trust me, it's related. White opines about the root causes for the failures of our institutions, such as Congress and the courts.

Last year I kept being amazed at all the progress I saw in the adoption of more realistic business models by the music as well as other industries. I thought it was a watershed year for loosening up the DRM stranglehold and making more content freely available to consumers. But there were also a number of court decisions confirming the importance of fair use -- mainly the search engine cases, though there was that wonderful Grateful Dead case out of the 2nd Circuit. Thus, it was also a watershed year for the expansion of transformational, or creative fair use.

Well, the trend is continuing. I just read a note in Wired about another fair use decision, this one relating to the "take-down notice" procedure mandated by the DMCA's limitation on liability for Internet Service Providers (Section 512): Judge: Copyright Owners Must Consider 'Fair Use' Before Sending Takedown Notice | Threat Level from Wired.com. This is the process that has prompted the "chilling effects" website that chronicles the threat to free speech these "shoot first and ask questions later" notices pose. The judge in the case has found that copyright owners have to take fair use claims into account *before* they send these notices. That is a major, major victory for those who make creative uses of others' works, who build upon them, or incorporate only small parts of them into new works, where the strongest claims to fair use lie.

This holding is only one step along the way for the plaintiff in this case. The case isn't over and EFF, who is representing her, still has a long way to go to show that Universal Music acted in bad faith in not considering fair use. But at least we have this initial holding that one must at least consider it!

There is very encouraging language in the court's opinion regarding the question of whether fair use qualifies as use "authorized by law." The relevant part of Section 512 requires copyright owners to include in their take-down notices, among other things,

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (emphasis added)

The court finessed the tricky question of whether fair use is simply a defense to an allegation of infringement (or a right), by focusing simply on whether it is authorized lawful use. The court unequivocally holds that fair use is authorized use. Thus, the copyright owner can not say that a use is "not authorized by law" unless it has considered and rejected the viability of a fair use claim.

The good faith/bad faith issue is the next one to be considered by the court. It will be interesting to watch as the case continues its way through the legal process.

The Bridgeport decision -- the one that famously proclaimed that there was no such thing as a de minimus use of music recordings (ie, no matter *how small* your use, it needs to be licensed) got some comeuppance yesterday: New York Supreme Court Rejects EMI's Bid to Enjoin Expelled | Stanford Center for Internet and Society. The context was Yoko Ono's and EMI Records' claims against the showing of "Expelled: No Intelligence Allowed," a film that uses some clips from John Lennon's "Imagine," without permission. I blogged about this when it first came to light. Ono quickly lost her bid for an injunction based on ownership of the composition, and now EMI has lost its similar bid based on its ownership of the recording copyright. These holdings are excellent news for creative fair use, of course, but the rejection in the NY Supreme Court's analysis of the Bridgeport case reasoning is icing on the cake! Maybe we will begin to see some relief from ridiculous cases holding that 3 notes from or a few seconds of someone's song is an infringement.

Such a reversal of the trend for which, hopefully, Bridgeport represents the high water mark, would be welcomed by the creators of new works who increasingly base their works on or incorporate snippets from others' works. From what I've read, Lessig's last book on copyright (Remix -- coming out in October) deals with this kind of creativity and the important role that fair use must play if we are to have a law that makes any sense at all in the digital networked environment we live in today.

As CCC announces today, the University of Texas at Austin has subscribed to the CCC's new annual license for the academic year '08-'09. We added this source of authority to our existing legal (fair use) and contractual (databases and transactional) permissions after a year-long exploration of our usage patterns, those existing authorizations, and the cost of the various options for obtaining permission where we need it. For an institution UT Austin's size, the license is a good fit with our current approaches to making course materials available to our faculty and students. Faculty use coursepacks, electronic reserves and, predominantly, Blackboard and other course management systems. Our guiding principle is that whatever we do to facilitate authorization to use course materials, we must not impose unrealistic barriers to teaching and research. So the Libraries license extensive collections of digital journals and a similarly broad array of e-books. Of course, our faculty rely on the wealth of materials whose owners make them available over the open Web for free (open access materials) and on fair use. Even with all these sources for digital course materials, in our case we still need permission for some uses. In keeping with our mandate to impose as little as possible on faculty and students, the annual license was a good choice for meeting our needs. Our focus over this upcoming year will be to evaluate its growth, which is critical to its effectiveness, and to compare its costs with transaction-based permissioning, which we will continue to pursue in our coursepack operation (when other sources of authority fall short). Overall, our strategy is to narrow the gap between what the sources cumulatively authorize, and what our faculty and students need.

Some of my copyright colleagues around the country will be dismayed to hear this news. I already know that among their concerns is that our decision somehow pressures them to do the same. But I have talked with many of my friends about the nature of their campuses, their use patterns and existing sources of authority including but not limited to fair use, library databases and transactional permission, and it will come as no surprise that most campuses are as different from each other as night from day. What seems cost-effective to one will seem an extravagant and unnecessary use of resources to another, and what one sees as too labor intensive will be the ideal solution for a different type of campus. There are campuses that license nearly all their needs through library database subscriptions and lots of them (believe it or not) have no course management system. Some channel all their coursepacks through commercial entities; some do not use coursepacks at all. We all know that there is no "one size fits all" when it comes to university services. So, while I know without a doubt that no one approach will be uniformly better than another, what I recommend without qualification is going through the process of looking over usage patterns -- go see what your faculty are giving their students to read, how they make their readings accessible to their students, what your library licenses, how your faculty know what options you provide them, how they learn what the scope of fair use is, and what it costs (both for overhead and for actual permissions) for the permissions you currently pay transactionally. Then you can come up with your own strategy to narrow the gap, if any, as I described above.

I feel like there's a herd of big elephants in the room, however, and I am generally not one to ignore big elephants in rooms. What if all this use of course materials, no matter how extensive, no matter how repetitive, is fair use? That seems to be the position that Georgia State is taking in its response to the suit by three publishers, filed earlier this year regarding its course management, ereserves and Website posting of course materials. Georgia State contested many allegations in the publisher's lawsuit, but it did not dispute the extent of the alleged use of others' materials, which included large parts of textbooks, and use of the same materials semester after semester. I have written extensively on educational fair use, and I've studied the issues involved in distributing digital course materials, and, as most people do, I have the utmost respect for the fact that reasonable people can disagree on the subject. While I think that the case would make a fascinating study were it to go to trial (hmmm... Maybe there's a dissertation topic in there somewhere), and might even have the benefit of clarifying the law in this area, for it deals head-on with a matter that I would characterize both sides as having avoided confronting, I find it very hard to believe that there won't be a settlement. On the other hand the parties are very far apart indeed. The idea of common ground is hard to imagine with that big a gap. The publishers seem to want a declaration that electronic reserves and course management use for delivering digital course materials are flatly not fair use and Georgia State seems to want a declaration that, au contraire, they are entirely fair use. Wow.

I think it's somewhere in between (surprise!). And just about everyone I know thinks so too. We differ in where we would draw the line. We also differ in how we approach the task of figuring it all out and paying for what needs to be paid for (assuming you agree that there's anything that needs paying for). The problem has always been that it should not cost more than you owe to figure out what you owe. That, in a nutshell, is the "high transaction costs" issue that, in fact, figures into fair use in the fourth factor (efficient markets issues). Ah, but I could go off on this, and I won't. Another big elephant.

And price is a big elephant. One of the first things people want to know about the license is not just how much it costs and how we'll pay for it, but what we are going to do when we are "stuck" and CCC raises the price to something we can't afford. They are the only game in town when it comes to this type of license, aren't they? I have thought about this quite a bit, actually. And I have several answers. First, having represented libraries for 17 years now, I can pretty frankly say that just about everything libraries purchase is subject to market pricing and monopolistic effects that are integrally a part of copyright law. Ever hear of Elsevier? Of Harvard Business? Of Sage Publications? These are all non-fungible "must have" book and journal publishers. We have been at their mercy for decades and we've had to accept and deal with mega-mergers and double-digit price increases year after year after year. We scream, we cry, we complain, but the bottom line is ALWAYS that if our faculty need these publications, we have to buy them. Voila. End of discussion. So what's new with the question of monopolistic pricing for access to and use of scholarly and educational materials? Nothing. Second, look back at the first paragraph above about what I indicated were our priorities for the upcoming year. All of us have the ability to compare the price for the Annual license, over time, to the price for obtaining the same authorizations one transaction at a time. It's not rocket science.

The place I plan to keep my eye on is the part of our usage pattern where items are freely available over the open Web -- open access. Just as the coverage of the Annual grows each month, and the coverage of our Libraries' databases grows as we acquire new licenses, our open access licenses are expanding too. As I have indicated many times before, I believe open access is an alternative business model that some day will effectively compete head on with pay per view, pay per use and pay - period. In fact, it already is. It's a very respectable percentage of our great mix of authority, along with fair use and our licensed databases and permissions.

It will be an interesting year (or two, or three), as we see where all this goes. Never a dull moment, is there?

CIP's Intellectual Property Handbook, which you can peruse at, Research Initiatives and Publications - Center for Intellectual Property - UMUC, includes as Chapter 9 a talk that Cliff Lynch gave as keynote at one of the CIP annual symposia a few years back. CIP recently posted Lynch's chapter online so that anyone can read it. It's a very easy read -- if you've heard Lynch speak, you know what a melodious voice he has, and as I read the talk, I could hear his voice in my head! It was almost like I was there at the keynote.

The talk is well worth your time and I heartily recommend reading it. His overall point is that the university must clarify its values regarding our role in the dissemination and preservation of scholarly communication, not just its production and providing access to it. As he does so well, Lynch weaves together discussion of fair use, orphan works, scholarly publishing and museum and library digitization projects (among other topics) and the choices we have in the digital environment to play more consistently on the same team. Take this passage, for example, where he reminds us that we theoretically have the ability to control every aspect from beginning to end (and repeat) of the scholarly communication cycle:

With regard to building upon the scholarly record, let me simply state at this point that, to a first approximation, the academy controls the scholarly record: it creates it, it represents the primary market for this record, and despite concerns about the current behaviors of scholarly publishers, at a very fundamental and long-term level, the rules surrounding the disposition and use of the scholarly record can, must, and will be under the control of the academy--though it must exercise the will to reassert this control in some very critical areas--and, ultimately, I believe that the values and practices surrounding the use of this scholarly record will be congruent with academic missions and values. This is a problem of values, of policy, and of will. It is not in essence a legal problem (other than to the extent that overcoming some past policy mistakes is made much more difficult by the legal impediments to undoing these choices).

He also speaks about the need to communicate with university counsel and university presses about being less risk-averse, to be more conscious of the need for congruence between our missions and the actions we take day-to-day. Of course, he acknowledges that there are stellar examples of campuses, presses, museums and libraries that are all pulling in the same direction, but he also notes there are some glaring examples of downright values conflict. Go have a look!

As I discussed last week in my blog post, UT Austin and the CCC's annual subscription license, I have been thinking over these issues of what's fair use in the delivery of digital course materials, and how to identify and pay for what isn't, for a long time. Almost 5 years to be more (but not completely) precise. It all started with that little irritating idea of market substitution, that is, the idea that making copies for educational purposes could be interpreted by a court to substitute for a market-ready service or product, a service or product that we should be purchasing. Oh, the circularity of it all...

But several courts developed the argument in rather quick (by court case standards) succession. By now most people know the three (Kinko's, Michigan Document Services, and Texaco). Many other much better fair use cases have come along since then (better with respect to the outcome for fair users, despite the presence of a real or simply alleged market for the use), but there's still this nagging question about how a court will see University copying and distributing in the context of these three cases, as well as the more recent cases that for the most part deal with transformative (creative) uses. To tell you the truth, I pretty much got to a stalemate position when I tried to balance what I thought was the likely result legally with what it was actually possible to accomplish on real campuses. I was poised to publish an article on the subject, but I just couldn't sign my name to something so depressingly negative, so pessimistic, so, well, hopeless. I truly judged the situation to be a mess but couldn't see the point in just proclaiming it so.

So, instead I posted the article on the Web where I knew fewer than 12 people would see it, began developing a workshop on the subject for the University of Maryland University College's Center for Intellectual Property, taught the workshop last winter, headed up task forces and work groups to examine the issues as I described in last week's post, and boy, did I learn a lot from this effort. I am reworking the article! It will still describe the difficult situations that educational institutions find themselves in, but it's going to reflect as well what I have learned about the process that we can undertake to manage our risk of infringement.

And, more immediately, I have revised the workshop and am hosting it again at the end of October (see the CIP's announcement). If you are interested in exploring these issues on your campus, I urge you to sign up for the workshop. It lasts 2 weeks, during which time we'll share and discuss readings, discussion questions, we'll have live chats, and lots of suggestions for what you can do on your own campus to get the ball rolling. Outcomes might be very different from campus to campus, as I've noted before, but the process is the same, the process of examining 1) what your faculty are using, 2) what licenses you have, 3) how you deliver what you deliver, and 4) the options for narrowing the gap, if you find one, between what you use and what you're authorized by law (fair use) or license (express or implied) to use. So, I hope you'll join me! It's not so hopeless, after all.

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?

The Center for Social Media at American University recently launched yet another in its amazing line of best practices guides, The Code of Best Practices in Fair Use for Media Literacy Education. I have received notes from so many people asking me whether I've seen the guide, that I am very encouraged that it's getting the widespread exposure it deserves. Of course I recommend to everyone reading this post that you have a look at it, even if you don't teach media literacy. And, I'm very excited for the Center for Intellectual Property that its next virtual scholar will be Peter Jaszi, who had quite a hand in the development of this approach to expanding reliance on fair use.

This document, like the others produced by the Center, explains the place of fair use in our law, the importance of relying on it, and most important of all, the elegance and wisdom of a flexible standard for using others' works. Unlike the rigid structures that most provisions of copyright law lay out, structures that in many cases are either obsolete before the ink hits the paper, or actually work to freeze backward-looking practices in the face of change, fair use can be adapted anew, every day, to the changing environment that we find ourselves in. "Rapid" barely begins to describe the rate of change in technological capability and corporate business models necessitated by that change.

This set of Best Practices takes care in its introductory remarks to describe clearly how it works, what it encompasses and what it does not do as well. For example, it makes very clear that it's not about showing movies in class, either to reward good behavior or for instructional purposes covered by Section 110 (1) and (2) (the TEACH Act). It's about creative, transformational uses of parts of others' works in new works. It also takes pains to dispel irrational fears of litigation in these contexts where markets are unlikely to be affected by uses that also have great social utility. So far all of the Center's guides have focused on creative reuses and remixes of others' works, where we have our strongest claim to a broad understanding and practice of relying on fair use.

But I want to suggest that even though I agree with the premise of the Best Practices approach, that creative uses enjoy the strongest claim and need the strongest defense, the rapid change in business practices among copyright owners is setting the stage for even non-creative uses, those that simply reproduce and distribute a work, to need and deserve just as strong a defense, when those uses do not interfere with markets.

From the introduction to the Best Practices for Media Literacy:

Courts have told us that copyright owners aren't entitled to an absolute monopoly over transformative uses of their works. By the same token, however, when a use supplants a copyright owner's core market, it is unlikely to be fair.

Courts are also beginning to recognize that the reverse is true too: When a use does not supplant a copyright owner's core market, it is likely to be fair even if it is not creative in the classical sense of that word. The recent Perfect 10 v. Amazon/Google case as well as other search engine cases illustrate how the weighing and balancing tips in favor of copying and distribution when its social benefits far, far exceed some marginal effect, if any at all, on peripheral or theoretical, or as I would argue, past, dead and gone, markets.

That's what I find so exciting about what's happening in the markets, in business practices around digital copies, and in movements like open access for scholarly works. Copyright owners are indeed beginning to get it that controlling digital copies has not worked nearly so well as they hoped it would, and will not work as a long-term strategy to adapt to the digital environment because it pits them in a losing battle against one of the most important benefits of the digital environment. When giving away digital copies increases sales of other goods and services for which the copyright owner can reap more than sufficient reward to encourage new creative works, controlling copies ceases to have the desperate appeal it once held, and its exorbitant costs can no longer be justified.

So I want to propose a new set of Best Practices, one for libraries: Best Practices for Fair Use in Adapting Patron Services (ie, Section 108) to Changing Technologies and Business Models. (Feel free to play with the title!)

The Best Practices approach would be much better than attempting to amend the law in this area. I offer the Section 108 Study Group Report as Exhibit A to support my argument. Except for the fact that the representatives of cultural institutions held the line and refused to compromise the public interest, the results of throwing them and copyright owners into a room together for 3 years was pretty predictable: The view of those with more power prevailed over the view of those with less. The Report documents in almost 150 pages all the details of their disagreements about hyper-technical matters, and, sadly, brings to mind "rearranging deck chairs." Publishers repeatedly claim that libraries are their competition and that library copies must be controlled to protect publishers. As I read the Report, I couldn't help feeling that if publishers really did (and still do) believe that libraries offer them any real competition, then there's absolutely no hope for the industry. Surely they recognize that Google and Amazon are the only competition on the field as currently constituted that they or libraries ought to be worrying about.

The Section 108 Study Report makes crystal clear that trying to change Section 108 won't succeed. The group was not even able to come to grips with the realities of how libraries archive works, replace copies, and supply copies to patrons and to other libraries today, to say nothing of how those practices are changing and will change dramatically over the next 10 years. The parties to the negotiation were locked into concepts of their roles that were far too rooted in the past, and explicitly (unabashedly) aimed at protecting industry business models that the public has not accepted and that the industries themselves are fast recognizing have failed.

In contrast, the Best Practices approach simply seeks to document the flexible fair use practices that are actually in use today -- practices that have enabled libraries to functionally deliver services under Section 108's rigid, disorganized and antiquated conceptions of those services for decades. Our own interpretations are all we have had in the absence of a sensible Section 108 to deliver services, without affecting the markets for published works. We are delivering services. We are not affecting markets. All we need to do is document how we are doing it. We need to do that now, to demonstrate that there is simply no need to try to change Section 108. The market is changing, and Best Practices can and will change too. A revised Section 108, if the Study Group Report is any indication, will cripple adaptability by locking libraries and archives, and perhaps even museums, into even more elaborately rigid structures than the current Statute creates. Again, look at the Report. That approach simply is not the best way to document current practice or enable the changes right around the corner. We'll simply end up relying on fair use to fix what Section 108 gets wrong, again. So why not just start working on our Best Practices today?

Before getting into the substance of my first post to Collectanea, I want to thank the Center for taking me on as its IP Scholar for the next few years. It's an honor and a privilege to follow in such distinguished footsteps -- most recently Georgia Harper's -- and to have the chance (from time to time) to speak to such an engaged audience. In other words, this should be fun!

As you'll discover quickly, I'm a big fan and promoter of fair use -- a user-friendly doctrine in our copyright law that is too often misunderstood and (more critically) underutilized. A lot of my work in the last five years has been around getting different practice communities to recognize and own their fair use rights, and I'll be blogging about the resultant "Best Practices" in fair use documents sometime soon.

Today, however, I want to suggest (somewhat uncharacteristically) that the fair use handle may not be the best one (or, at least, not the only one), by which to pick up the by now widely-publicized controversy between the street artist turned culture hero Shepherd Fairey and the Associated Press. By now, you know the outline of the dispute: AP wrote Fairey to assert that his iconic image of Barack Obama infringed its copyright in a photo taken by a freelancer it had employed. Not waiting to be sued, Fairey fired back (with help from the estimable Fair Use Project at Stanford) seeking judicial declaration that the use was legal. In press accounts, one element of that lawsuit got most stress: the claim that whatever use Fairey had made of the image in question should be considered "fair."

And so it should be (a point to which I'll return) if the dispute ever gets that far. But there are some other copyright questions to consider along the way. As much of a fair use enthusiast as I am, it's always my advice to consider other arguments against liability as well. And in this case, there are plenty of them.

Here's some background:

Back in April 2006, then-Senator Barack Obama attended a press event with actor George Clooney to draw attention to atrocities in Darfur, as described at swamppolitics.com. AP Photographer Mannie Garcia snapped some photographs of the event, including this one:

Ultimately, Barack Obama ran for president, accepting the nomination for the democratic candidacy on the 45th anniversary of Martin Luther King's "I have a Dream" speech and taking the oath of office one day after the national holiday honoring Dr. King's birthday.

Graffiti artist Shepherd Fairey has been an active in politics for over 20 years, and in Barack Obama he saw a candidate worth celebrating and supporting. In early 2007, he came across Garcia's photograph and used it as source material for this painted design:
Apparently, it was Fairey who "found" the striking Obama close-up by cropping Garcia's busy medium-shot of the Senator and Clooney.

The Obama campaign never officially adopted the image (ironically, because of copyright concerns), but nevertheless encouraged Mr. Fairey to make and distribute the posters. The image became one of campaign's central symbols, and the Smithsonian Institute acquired the original for display in the National Portrait Gallery.

So let's analyze the claim. The first question, of course, is whether AP has any rights upon which it can rely. As a freelancer, Mr. Garcia may or may not have been an "employee for hire," but it seems at least likely that AP did contract specifically for rights in works he produced on assignment from them. A more interesting question, then, is whether whatever rights AP had were exclusive or shared ones. Since the early 20th century, it's been a copyright convention in the United States to discount the contributions that photographic subjects make to images depicting them. This is the approach the Supreme Court took in the famous 1884 Burrow-Giles Lithographic v. Sarony case (involving rights in a portrait of Oscar Wilde), and its implications were first documented by Jane Gaines, in her important 1991 book, "Contested Culture: The Image, the Voice and the Law."

In practice, a photographic subject has a lot of responsibility for how he or she looks, at least in a posed or "semi-candid" shot. This may be particularly true of a politician actively involved in cultivating a public image. If the subject were ever considered to be a joint author of a photograph, the implications for legal analysis would be substantial. In this case, for example, Barack Obama would have been in a position to give Fairey legal authorization to make whatever use of the photograph was necessary to create the poster -- making the AP's claim effectively moot. Does the issue of the ownership of Barack Obama's image provide an occasion to reconsider the historically well-established but doctrinally shaky allocation of all rights to the photographer (or the photographer's employer)? Perhaps so. But it could be an uphill battle. So let's consider another argument -- one that doesn't depend on establishing Barack Obama's ownership.

The scope of copyright protection extends only to the elements of the work that are someone's original authorship. We probably all would concede that had Mr. Garcia's photograph been reproduced exactly, in its entirety, something attributable to him would have been taken. But that wasn't the case here. Shepherd Fairey painted his image using a photograph as a reference, rather than transcribing it directly. What, after all, do the two graphic works have in common? One thing is Barack Obama's physiognomy, which is his alone! Another is his pose -- chin uplifted and face slightly turned -- clearly one of the elements that makes the original image (and Fairey's version) memorable. Can the AP (by way of Garcia's authorship) claim that? In the abstract, perhaps, since every since Burrow-Giles we've understood that posing the subject can be an aspect of photographic authorship. In this case, however, it isn't clear that Garcia created the pose, as distinct from happening upon it. Nor is it obvious that had he created it, it would be considered "original." Innumerable high school yearbooks testify to the fact that this is a conventional way of creating interest in a portrait photo. Moreover, it is one that is already familiar from photographs of public figures, including Martin Luther King himself, as photographed by Karsh of Ottawa. In general terms (which are the ones that matter most here) the pose is conventional rather than copyrightable.

So what's left? And -- more to the point -- is it enough? Using the conventional "subtractive" approach to infringement analysis, and beginning by stripping away all the elements of the Garcia photograph that copyright doesn't protect, would we be content to conclude that the Fairey poster design is "substantially similar"? Or are the "original" elements repeated in the poster (the exact angle of the head, for example) simply to few and too trivial to count There's a general rule that the law doesn't stoop to trifles and it applies in copyright infringement analysis. The fact that we excuse rather than penalize so-called de minimis copying of protected material is just another way of assuring that overenthusiastic assertions of protection don't gum up the works of creativity. This may well be such an example.

Of course, if a court were event to reach it, Shepherd Fairey's fair use claim would also have real force. In Garcia's photograph, Fairey "found" a reference to Karsh's famous King portrait - arguably an act of visual commentary or critique. In any event, Fairey took only a portion of the original image (although arguably the most important part), he transformed the image by using it in a new context (fine art/political advocacy v. news reporting) and adding value to it, and he did nothing to undercut the lasting commercial value of the image. About the only argument left is the circular one that if the use were not considered fair, the AP would have been entitled to receive a license fee for it -- and, therefore, that its "market" has been harmed. But recent fair use case law speaks clearly, decisively and negatively to that point. When a use is truly "transformative," we are told, the copyright owner has no valid expectation of licensing revenue for it (or others like it): "[When the use of] images is transformatively different from their original expressive purpose.... a copyright holder cannot prevent others from entering fair use markets...." Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2006) at 614-615.

Fairey v. AP could be an interesting fair use case, but it is (perhaps) an even more interesting introduction to other copyright doctrines that protect the rights of creators to incorporate elements of the surrounding culture into their own work.

Some years ago, I was in a meeting with a high IP official of a certain political administration (neither of which will be named here), discussing exceptions to copyright law and trying to make the point that these were critical to the mission of secondary and higher education, which were (even then) cash-strapped. The unnamed official had a simple response to this argument, which ran (in effect) like this:

These days, education is big business, and a big market for copyrighted material. If copyright licenses cost to much, the right answer isn't to impose costs on copyright owners but to go back to education funders and ask for additional appropriations to cover rights clearances.

Somehow, this line didn't seem right then, and it doesn't seem right now. But the argument may be a bit more difficult to counter than some educators believe (or hope). It is, however, important that we prepare to do so, as we gird for a struggle over the future of educational fair use.

I put my focus on fair use here because--at least for now--the promise of educational (and education-related) special exceptions to copyright seems limited, as evidenced by the disappointments of the TEACH Act and the becalmed state of the process designed to update Section 108. In the foreseeable future, then, fair use--that marvelous catch-all copyright exception--may be the best hope.

Educators are entering an era in which the copyright fair use doctrine will be of more importance to us than ever before in its 168-year history. A myriad of questions confront us to which fair use may be at least a partial answer, such as:

• How can students use copyright materials in creating class projects?


• What can students and teachers do with such projects once they have been created?


• What rules apply to quoting copyrighted material in electronic course materials?


• To what extent can teachers take advantage of the potential for e-reserves?


• And many more!

Our communities have strong views on at least some of these questions, as evidenced, for example, by last Fall's Code of Best Practices for Fair Use in Media Literacy Education, which it was my pleasure to help facilitate, or the forthcoming fair use statement from the Society for Cinema and Media Studies. It's crucial that positions like these should be defined as fully and quickly as possible by educators, lest someone else gets to frame the conversation--as publishers are attempting to do in their e-reserves lawsuit against Georgia State (read the complaint here).

The challenge that educators face, of course, is the curious dearth of case law interpreting the fair use doctrine where core educational functions are concerned--and by "core" I don't mean file-sharing by college students or even the production of course packs by for-profit businesses that happen to serve educational facilities. I do mean activities in and around the classroom, the library and (increasingly) the computer lab! And this is where what may either be strength or a weakness in educators' positions lies. In the years since 1841, when Joseph Story first cooked up the fair use doctrine, there have been no decided cases--that's right, no cases!--that address the legal status of core educational functions conducted in and around conventional schools. The closest we come (and it's not very close!) is Encyclopedia Britannica v. Crooks, 542 F. Supp. 1156 (W.D.N.Y. 1982), which stands for the somewhat underwhelming proposition that schools can't invoke fair use to justify a wholesale program of off-air taping for possible future classroom use!

Nor does legislative history help out much. Although the deliberations leading up to the 1976 Copyright Act are replete with discussions of the problem of educational photocopying, they don't give us (or the courts) much to work with on the more fundamental question of how strong a privilege core educational functions, in general, should enjoy. Unfortunately, those deliberations did open up a path that ultimately became blind alley for educational fair use--the prospect of "voluntary guidelines"--and in so doing delayed the emergence of a robust discussion of the application of the doctrine in its native form. (This isn't the place to review the guidelines fiasco, even were there anything left to say after the magisterial article by former CIP IP Scholar Kenny Crews, which you can read here.)

What should we make of the fact that we just don't have well-articulated statements by judges and legislators about the importance of education to society and the importance of fair use to education? One possibility, of course, is that (like my unnamed official) they actually don't buy this argument. The other--and it seems to me more likely--is that the argument is too self-evident to require much discussion. If so, a possible corollary might be that copyright owners (who generally don't like to lose) have been leery of pushing claims against core educational functions to a decision!

Remember, though, this is all supposition--which suggests to me that educators should be reluctant to rely on it too heavily. In that case, what should educators (and those who love them) be doing now to improve their position? Let me make two modest suggestions:

1. First, it's important that educators refrain from claiming too much under the heading of fair use--and, in particular, that they avoid the simple (and erroneous) proposition that merely because a use is educational, it is definitionally fair. True though it is that "education" is named in the preamble to Section 107, that--in itself-- and $3.00 (give or take) will get you a Vanilla Rooibos Tazo® Tea Latte at Starbucks.
2. Second, it is crucial to develop the arguments for treating various kinds of educational use as "transformative." Like it or not, this is the current mantra of fair use jurisprudence, and educators need to recognize this jurisprudential fact and respond accordingly. They need to generate more and better explanations (the fair use code for media literary, referenced above, being one example), of how educational uses don't just repeat quoted material for its original purposes, but both repurpose that material and add value to it. For educators, this proposition may seem transparently obvious. But this isn't necessarily true for the copyright community in general--or the courts in particular.

In future posts, I'll be going into some more detail about the challenges that educators face. But it isn't too soon to begin to think--and talk--about how to meet them.

The U.S. Copyright Office is a generous and generally reliable font of information on a wide range of technical copyright questions. Despite that, or perhaps because of it, the Office's testimony at last week's hearing on the Google Books settlement, before the House Judiciary Committee, may have generated more heat than light. That's because the real legal issues facing Judge Chin of the New York federal district court, as he considers whether to approve the settlement, aren't about copyright at all. Instead, they concern abstruse specialties (competition law, class action procedure, etc.) in which neither the Copyright Office nor I can claim special expertise, By contrast, the most important factual question the judge confronts -- whether the settlement will add meaningfully to the public accessibility of books -- is one on which we're all entitled to our opinions. And, in the spirit of full disclosure, I should say that I have mine. Having given some advice to the National Federation of the Blind as it worked to shape the provisions on accessibility for the print-disabled that now appear in Article 7 of the proposed settlement, I can say that the settlement will be a boon to the many Americans (probably more than 30 million in all) who have difficulties processing conventional text.

So what about last week's Copyright Office testimony? It identifies three major copyright concerns about the settlement, all of which I think are misplaced. The first and most significant is the possibility that the settlement will put in place a "compulsory license" for on-line uses of out-of-print books still protected by copyright. Non-copyright geeks need to understand that in our world, these are fighting words. In fact, of course, this mechanism has a long record of success in cutting the knots that get tend to tied around issues involving copyright and new technology (e.g. the compulsory license for making cover versions of recorded songs, or the ones that have enabled cable and satellite television). But that doesn't prevent many experts (like those at the Copyright Office) from disapproving on general principles of governmental action that takes negotiating power away from classes of individual copyright owners.

The point here, however, is not that compulsory licenses actually may be less frightening than the Copyright Office testimony suggests, but that what the proposed settlement describes isn't, by any reasonable stretch, a compulsory license. Rather, it's a negotiated understanding on future licensing for particular uses that individual rightsholders (here authors and publishers) are free to avail themselves of, or not, as they choose. In that respect, it is closet relative in the menagerie of mass licensing options is probably "collective administration," a technique we know in the United States mainly as it is practiced by the musical performing rights societies (PRO's) like ASCAP and BMI - and which is employed far more widely in most other countries. Of course there are differences between classic collective administration and the scheme that would be administered by the Book Rights Registry under the proposed settlement, of which the most obvious is that while rightsholders must opt into traditional collective administration, they would have to opt out of this contemplated licensing regime. But that difference is more apparent than real. As a practical matter (in the U.S.) or a legal one (in many other countries) the only way a rightsholder can be paid for some uses is by "voluntarily" affiliating with a collective administration organization that manages this set of rights. The settlement proposes is at least as fair as that, and perhaps fairer!

The Copyright Office testimony might also be read to suggest that the licensing solution in the proposed settlement deserves special scrutiny because it is so invasive of rightsholders' markets. In fact, however, that solution has no bearing on print sales, including the emerging print-on-demand model, which is so well adapted to the exploitation of out-of-print material. And, of course, it doesn't touch the markets for adaptation, translation, excerpting, etc. On-line reading, and only on-line reading, is covered. So whatever kind of licensing this is, its reach should not be overstated. The real question, I'd suggest, isn't how the licensing regime proposed in the settlement should be labeled, but whether or not we like what it accomplishes.
Likewise, the Copyright Office's next concern may actually distract rather than focus attention where it belongs; that's the idea that the Google Books settlement would somehow preempt efforts to resolve the ongoing "orphan works" issue through new legislation. The campaign to "free" orphan works is one in which I've been actively involved for years, and in which the Copyright Office admirably has taken a leading role. Here, though, Google may be a victim of its own excellent public relations efforts. In fact, claims and counterclaims notwithstanding, there's nothing about the proposed settlement that would put more than a slight dent in the problems faced by scholars, creators and publishers who want to make new uses of old works whose current owners cannot be identified. Most orphan works, it should be emphasized, aren't out-of-print books - as to which there usually is an adequate paper trail; instead, they are unpublished manuscripts, letters and diaries housed in archival collections, historical photos and art works, and so forth. And even if the some of the old copyrighted books that consumers could read under the proposed Google Books settlement are well and truly orphaned, the settlement wouldn't authorize anyone to reprint them, or make movies based on them, or include excerpts from them in scholarly publications. Even if the settlement were approved, in other words, plenty of work would remain for orphan works campaigners to do!

Third, and finally, the Copyright Office testimony points out - accurately - that some of the U.S.'s trading partners object to the proposed settlement. There's some irony here, of course, given that (as I mentioned earlier) collective licensing is practiced far more widely outside the U.S. than it is here at home. But putting that to one side, I need to suggest that whether or not foreign nations approve of this way of organizing a portion of our domestic market in texts, it may be (strictly speaking) none of their business - especially since foreign rightsholders of out-of-print books have the option of disassociating themselves from the Book Rights Registry and making their own deals - if they can - with consumers. It's also worth remembering that this whole story began - and the settlement is the directive outgrowth of - Google's strong assertion of "fair use" in connection with the scanning of in-copyright books. So it's no wonder that our European partners (who seem to be making most of the objections), whose national laws don't include a fair use provision, would come up with other ways of dealing with issues of mass digitization - though it remains to be whether those ways will prove are as effective in promoting meaningful access as the proposed Google Print settlement has the potential to be.

When last I was heard from in this space, I was bemoaning the lack of any solid case law supporting what, at some level, we all know the be true:  that the educational enterprise has a special place in the scheme of copyright law, and that - in particular - educational uses (both commercial and non-commercial) deserve special deference in fair use analysis.  See  "Educational fair use: a provocation". Since then, I've become aware of a development that seems worth commenting on, even though to do so puts me in a strangely divided position. 

The development in question is the decision (back in April) of the Fourth Circuit Court of Appeals in A.V., a minor, et al. v. iParadigms, LLC, otherwise known as the "Turnitin" case. See Case here. The backstory is quickly told.  The defendant company's commercial software application is perhaps the most popular automated "plagiarism detection" systems that are being aggressively marketed to (and widely adopted by) schools and universities.  According to the court (which in turn quotes the defendant company's self-description of the product, when a school subscribes to iParadigms' service, a subscriber typically "requires its students to submit their written assignments 'via a web-based system available at www.turnitin.com or via integration between Turnitin and a school's course management system.  In order to submit papers online, students 'must be enrolled in an active class' and must 'enter the class ID number and class enrollment password' supplied by the assigning professor. After a student submits a writing assignment, Turnitin performs a digital comparison of the student's work with content available on the Internet, including 'student papers previously submitted to Turnitin, and commercial database' of academic journals" and the like.  You know the rest:  after the program "flags" possible instances of plagiarism, and the teacher or school responds, as deemed appropriate, with further investigation, reinforcement of lessons on academic honest, disciplinary action, or all of the above.

The Fourth Circuit opinion arose from a challenge to the "archiving" feature of Turnitin brought (with the assistance of an experienced Northern Virginia patent lawyer) by several high school students in different parts of the country.  As far as it concerns us, their claim was simple - the inclusion of their papers on the Turnitin database of previous submitted student work (about which they were given no option if they wanted credit for the assignments) amounted to involuntary reproduction - and, therefore, copyright infringement.   Of the several issues raised in defense of the student plaintiffs' claims, the appellate court's opinion deals with only one:  the assertion that the copying of their papers into the archive constituted "fair use" under Sec. 107. 

Before going further, I should expand a bit on my ambivalence.  I'm going to claim that what the court had to say is good news for the position of educational fair use, as a general matter.  But I'm no fan of Turnitin in particular or automated plagiarism detection systems in general.  In fact, I'm persuaded by the critiques of the trend toward use of these tools that has been so eloquently voiced by Professor Lisa Maruca (and others), who seem the fetishization of "originality" as a growing problem in writing pedagogy.  The "plagiarism panic" that has swept through secondary and higher education in recent years may or may not reflect a change in students' real behavior. Alternatively, this dramatic uptick in concern could be, instead, the result of a "reporting phenomenon" (i.e., as teachers develop better tools to sniff out imitation by student writers, we become more and more aware of what has been going on, all along, under our noses.   But whatever the stimulus, many instructional responses to this "plague" are clearly problematic, since they tend to occlude the fact that, at base and in general, writing is a collaborative and imitative activity more than a solitary and originary one.   For more on this, you could look at the wonderful resource page of the CCCC-IP (the Intellectual Property Caucus of the Conference on College Composition and Communication) at http://ccccip.org/pds, or (for the specific flavor of her work, which connects the twin crises in plagiarism and copyright enforcement) at Professor Maruca's "Plagiarism and Copyright :  Links in the Turnitin Culture," which appears at p. 6 of the Winter 2006 Sweetland Writing Center Newsletter, archived at http://141.211.177.75/UofM/Content/swc/document/SWC_W06.pdf.  Enough said!  At this point, I need to hold my nose and say a bit more about why, despite its outcome, there may be value for educators in the Turnitin decision.

The first and most obvious way in which the decision may be helpful is that it provides - for the first time - what amounts to a ringing endorsement of the general trend toward "transformativeness" analysis in fair use in an educational (or, at least, quasi-educational) context.   Undeterred by the plaintiff's assertion that the commercial nature of iParadigms service somehow disqualifies it from claiming fair use, the Fourth Circuit makes it clear that if a use is transformative, its commercial character is of little analytic significance.  Likewise, the court turns back the argument that "iParadigms' use of [plaintiffs'] works cannot be transformative because the archiving process does not add anything to the work -- Turnitin merely stores the work unaltered and in its entirety. This argument is clearly misguided. The use of a copyrighted work need not alter or augment the work to be transformative in nature. Rather, it can be transformative in function or purpose without altering or actually adding to the original work."  In this case the change in function in this case because the student papers were being used for plagiarism checking rather than for their informational content.  But, of course, a similar argument can be made for the teacher or learner who uses a copyright work not for its content, as such, but as objects of critique, as illustrations of social/cultural phenomena, or as inputs in the creation of new content.

All this is useful, but hardly remarkable, given the present state of fair use law generally.  The very special value of the Turnitin decision for educators may actually lie elsewhere.  Not only does the Court of Appeals endorse the transformativeness analysis performed by the district judge who first heard the case, but it also quotes (with apparent approval) the lower court's statement that iParadigms service "provides a substantial public benefit through the network of educational institutions using Turnitin" (emphasis added).  The fact that an unlicensed use of copyright material provides an educational payoff (even an indirect one) is persuasive on the issue of fair use; in other words, iParadigms is getting a bit of a free ride on the general legitimacy of the teaching enterprise.  We may dispute (as I certainly do) about whether Turnitin itself actually provides such a public benefit, but the courts are assuming it is so!  Obviously, teachers (and learners) in other potential fair use situations will be able to make other, perhaps even more compelling, arguments about why unlicensed educational uses of copyrighted material to promote the larger public interest and the purposes of copyright.

So, is this a slim reed?  Certainly, but it's better than no reed at all.  For the first time in the history of U.S. fair use jurisprudence, we have a decision finding fair use in (or around) a typical instructional setting.  We should try to make the most of it!

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

Arnie Lutzker has taught many times for the Center for Intellectual Property. In the past, he presented at various CIP seminars and conferences. And he contributed a chapter to the CIP Handbook. Arnie is a great copyright teacher and the CIP staff welcomes his wisdom and insight.

Recently, Arnie wrote an article on the dispute between the Association for Information Media and Equipment (AIME) and UCLA. To be fair, Arnie is representing AIME and so this article should be read with an understanding that he is advocating on their behalf. Nevertheless, I think his analysis and observations should substantively contribute to the ongoing discussion of this very important subject of streaming video to classes.

Kimberly M. Bonner, J.D.
Executive Director, CIP

Arnold Lutzker, J.D.
Lutzker & Lutzker, Washington, DC

Read Educational_Video_Streaming_A_Short_Primer_March2010 (PDF)

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

For the last several years, the Center for Social Media at American University (directed by Pat Aufderheide) and the Program for Information Justice at the University law school (with which I'm affiliated) have been worked with various groups of practitioners (documentary filmmakers, media literacy educations, on-line video makers, providers of open courseware, dance archives, and others) to devise so-called Statements or Codes of Best Practices in fair use for those communities.

Some information about that effort can be found at http://www.centerforsocialmedia.org/resources/fair_use/. Now, thanks to a grant from the Andrew W. Mellon Foundation to the Association of Research Libraries, we'll be part of a team devising fair use standards for institutional collections of print and other media in support of teaching and scholarship. According to the ARL press release (http://www.arl.org/news/pr/mellon-grant-8apr10.shtml): "The project will be undertaken in three phases:

• a research phase, in which the project team will conduct interviews with members of the library and legal communities;


• a development phase, in which the project team, with members of the academic and research library community, will draft and publish the code of best practices; and


• an outreach phase, in which the project team will distribute and publicize the code of best practices."

The theory behind these best practices projects is simple and powerful:
When decision-makers (including courts) consider what fair uses of copyrighted material should be permitted because they promote cultural progress, they rely on information about how people actually think and act in the practice communities where the issues arise. So, for example, the "standards and practices" of broadcast journalism are influential in determining when stories can include newsworthy video clips without having to license them. To cite another example, insurance companies that write "errors and omissions" policies for documentary films currently give significant weight to the 2005 Documentary Filmmakers' Statement of Best Practices in Fair Use."

Watch this space for more information about the research libraries best practices project as it becomes available.

You may remember that back in July, Judge Deborah Batts of the Manhattan federal district court issued a preliminary injunction barring U.S. publication of 60 Years Later: Coming Through the Rye, a Swedish author's updated take on J.D. Salinger's Catcher in the Rye - an action filed before the author's death and carried on afterwards by his estate. Among other things, Judge Batts concluded that (notwithstanding some impressive expert affidavits to the contrary), it wasn't likely that the defense would succeed in demonstrating that the reinterpretation was a "fair use" - because it didn't amount to a critique of or commentary on the original. That crabbed reading of the substantive fair use standard (which seemed to overlook a good deal of the recent "transformativeness" jurisprudence) cried out for review - especially in light of the Eleventh Circuit's very different treatment of The Wind Done Gone, Alice Randall's unauthorized Gone with the Wind sequel, in 2001, with its strong emphasis on the copyright/First Amendment connection.. But a funny thing happened on the way to an appeal of the decision on the merits in this newest Salinger-induced copyright controversy. In its first bout with the case, the Second Circuit Court of Appeals focused on what may at first blush appear to be a fine point of procedure, but could ultimately be more significant to the future of copyright - and the fair use doctrine - than any ruling on the rights and wrongs of the infringement claim.

A bit of background may in order. For years, most federal courts in copyright cases have assumed that a plaintiff who demonstrates infringement was presumptively entitled to a permanent injunction barring further circulation of the offending work. The same had long been true in patent litigation as well. And, in a parallel line of decisions, courts in both types of IP cases had held that a plaintiff who demonstrates a statistical "likelihood of success" on the merits (that is a more than 50 percent chance) is entitled to a preliminary injunction in most ordinary circumstances. Then came the unanimous 2006 Supreme Court decision in eBay v. MercExchange, a patent dispute over the eponymous plaintiff's "Buy it Now" feature, which held that "the traditional four-factor test applied by courts of equity when considering whether to award permanent injunctive relief to a prevailing plaintiff applies to disputes arising under the Patent Act. That traditional test requires a plaintiff to demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law are inadequate to compensate for that injury; (3) that considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction." In other words, there will be cases in which an award of damages - amounting to what might be considered a judicial "compulsory license" - will be enough to make the copyright owner whole while preserving the public interest and it is up to that owner to demonstrate that this isn't one of them!

Ebay left two important questions unresolved - whether the rule applied to preliminary as well as permanent injunctions, and whether it governed in copyright as well as patent cases. In Salinger, the Second Circuit gave its unequivocal answer to both: "We hold today that eBay applies with equal force to (a) preliminary injunctions (b) that are issued for alleged copyright infringement." And with that - and a hint that (after all) the district court's fair use analysis may have been insufficiently generous to the defendant - the Second Circuit sent the case back for a reconsideration of the appropriateness of preliminary injunctive relief according to the eBay standard.

And you may fairly ask, what's so important about that? To appreciate the answer, it helps remember that in recent years most copyright cases that found their way to court never progressed beyond the preliminary injunction stage. As a result, they never produced definitive rulings on the points of law and fact involved - and, especially, on the merit of the defenses interposed (including, but not limited to, fair use). For ordinary (and even some extraordinary) copyright defendant, there's no real percentage in continuing to fight your case when you can't sell your toy or screen you movie or publish your book. Of course, the cases that settle out after an adverse preliminary injunction decision are officially scored as plaintiffs' victories - and publicized as such. And the result has been a sort of intensifier effect, through which even somewhat dubious copyright claims get validated and creative users' arguments are systematically disappeared. Or, to put it another way, it guarantees a permanent dearth of meaningful cases through which the limits of copyright protection can be tested.

It is difficult - to say the least - to imagine that the Supreme Court would see this "extension" of eBay any differently. In 1994, the Court dealt with another seemingly "technical" copyright issue - deciding 9-0 that attorney's fees could be awarded to successful copyright defendants, rather than being reserved for plaintiffs only. The language of Chief Justice Rhenquist's opinion in Forgerty v. Fantasy bears quotation at length here:

[I]n Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975), we discussed the policies underlying the 1909 Copyright Act as follows:

"The limited scope of the copyright holder's statutory monopoly . . . reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. 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." (Footnotes omitted.)

We reiterated this theme in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349-350 (1991), where we said:

"The primary objective of copyright is not to reward the labor of authors, but `[t]o promote the Progress of Science and useful Arts.' To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work." (Citations omitted.)

Because copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible. To that end, defendants who seek to advance a variety of meritorious copyright defenses should be encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious claims of infringement. In the case before us, the successful defense of "The Old Man Down the Road" increased public exposure to a musical work that could, as a result, lead to further creative pieces. Thus a successful defense of a copyright infringement action may further the policies of the Copyright Act every bit as much as a successful prosecution of an infringement claim by the holder of a copyright.

Almost every word of this prescient opinion could apply, with equal force, to the issue in Salinger. Without some meaningful constraint on preliminary injunctions in copyright cases, the "boundaries" of copyright law will never be clearly "demarcated." With such constraint, many things become possible!

I had promised you a blog on "virtual first sale," and you will have it. But I wanted to report first on an interesting happening. Let me start by quoting my colleague Mike Palmedo, at the Washington College of Law's Program on Information Justice and Intellectual Property:

On Tuesday the Computer and Communications Industry Association (CCIA) released its report "Fair Use in the U.S. Economy," which measures the economic contributions of industries that rely on flexibilities in copyright law. These contributions are massive, yet they are often overlooked in debate over the strengthening of IP enforcement. The report finds that in 2007, industries reliant on fair use produced:

• $2.2 trillion in value added (revenue minus costs). This amounted to 16.2% of GDP
• 23% of real economic growth over the prior five years
• $281 billion in exports
• Employment for 17.5 million Americans, in jobs with higher-than-average compensation)
• Productivity gains that were 28% higher than the national average

CCIA President & CEO Ed Black announced the report at a panel on Capitol Hill, saying:

In a knowledge-based economy, having numbers that show why fair use matters is critical as legislation is made and trade agreements are negotiated. Fair use is critical to the innovation economy. Much of the unprecedented growth of the tech and communications industry can be credited to the fair use doctrine. This cornerstone that fosters creativity and innovation must be protected.

Representative Zoe Lofgren spoke, expressing hope that the report would help the public understand the importance of the balancing features of copyright law. She quoted the section of Constitution giving Congress the power "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;" then warned that much of the modern discourse has tended towards ever-higher protections for IP, which was not the original intent of the framers. She warned that the Anticounterfeiting Trade Agreement is problematic because it is a step in the efforts to further block access to content, and because it lacks protection of the flexibilities needed for creative industries. A better goal for trade negotiations would be a "freedom agenda" that promotes greater expression and innovation.

More specifically, I said:

I want to offer my compliments to CCIA, a crucial organization that balances respect for core IP rights with a recognition that the so-called "gaps" in copyright protection - including fair use and other statutory limitations and exceptions to copyright - are a "feature" rather than a "bug" in our prodigiously productive innovation system. Or to put the point in constitutional terms: CCIA works to remind us that the success of copyright in promoting "Progress in Science and useful Arts" is a function of all the parts of the system working together, rather than of any one standing alone.

The take-away from this splendid revised and updated edition of "Fair Use in the U.S. Economy" is that robust copyright flexibilities are at least as important to the ecosystem of creativity as are strong content protection. Indeed, many of the most important so-called "copyright industries" owe their very existence to "fair use," in both the broad and narrow senses of that term. That's because, of course, every "new" cultural product depends on all that has gone before. New software products succeed because they build upon and can interoperate with those that have gone before. Musicians must imitate in order to create. And in our media saturated culture, motion picture and TV production would be impossible if every reference to existing information objects required copyright clearance. We have known anecdotally about importance of fair use for decades, but this report makes the point clear than ever by quantifying what might be called the "fair use effect."

Maintaining this effect is going to be critical as the U.S. copyright industries face increasing global competition, not from IP piracy, but from rapidly growing domestic creative industries throughout the developed and developing world. And that raises what seems to me an important practical and ethical concern. Currently, the U.S. is actively engaged in exporting strong copyright norms to our trading partner - making use of familiar mechanisms like FTAs and--perhaps--novel multilateral instruments like the proposed Anti-Counterfeiting Trade Agreement (ACTA). The U.S. claim in these international negotiations is two-fold: That it is essential to protect US against wide-spread unauthorized duplication and sale, and that countries that upgrade their national laws actually will be doing themselves a favor--by creating a legal climate in which domestic copyright industries.

In the same negotiations, however, the U.S. doesn't seek to export our highly successful approach to defining and interpreting copyright flexibilities such as fair use. Are we, I wonder, playing fair by emphasizing the benefits of strong protection and matching penalties, while deemphasizing the other features of US law that--to at least the same degree--are part of our system's genius? And, in the medium and long-term, how will US copyright industries fair in an international marketplace that is more generally more restrictive of the creative process than our own tried and tested copyright law, with its emphasis on dynamic and productive balance? If we succeed in pressuring our trading partners to enact tough laws with no meaningful exceptions, our own copyright industries may suffer. (In this connection, it's worth remembering that under the widely-accepted international copyright rule of "national treatment," it's the domestic law of the country where alleged infringement occurs that governs where both rights and limitations are concerned!)

I need to disclose here that I helped the authors of the CCIA (economists Thomas Rogers and Andrew Szamosszegi of Capital Trade, Incorporated) to think through some of the underlying issues of industry classification back in 2007, when the first iteration of this report appeared. That said, the document has a lot to recommend it--not the least being that it relies exclusively on publicly available datasets, and uses a methodology that is fully and transparently disclosed. It's interesting to contrast the industry-funded studies of the costs of infringement to copyright industries, which were the subject of "Intellectual Property: Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods," a fascinating GAO study released a few weeks back - which concludes (in relevant part) that:

Generally, the illicit nature of counterfeiting and piracy makes estimating the economic impact of IP infringements extremely difficult, so assumptions must be used to offset the lack of data. Efforts to estimate losses involve assumptions such as the rate at which consumers would substitute counterfeit for legitimate products, which can have enormous impacts on the resulting estimates. Because of the significant differences in types of counterfeited and pirated goods and industries involved, no single method can be used to develop estimates. Each method has limitations, and most experts observed that it is difficult, if not impossible, to quantify the economy-wide impacts.

The "numbers war" in copyright is likely to continue, but the CCIA study could stand as model for how the way estimates are derived can be disclosed and explained.

So, finally, the Copyright Office and the Librarian of Congress have spoken (not quite with one voice, of which to come), in the fourth approximately triennial rule-making under Sec. 1201(a)(1) of Title 17, which we were given as part of the Digital Millennium Copyright Act of 1998. For those who (perhaps wisely) haven't been paying close attention, let me review the bidding. One of the dubious accomplishments of the DMCA - achieved despite the best efforts of various "public interest" copyright campaigners, myself included - was the introduction of a general prohibition (with new penalties to match) on the unauthorized "circumvention" of so-called "technological protection measures" used to secure copyright works especially in the digital environment - the hacking of encryption being the most obvious example. This "paracopyright" provision (that is, a law that's not copyright strictly speaking, but is related to and reinforcing of it) has various striking features. Perhaps the most striking is that it includes no general "fair use" exception for socially desirable uses and users. Some specific exemptions (for law enforcement, reverse engineering, etc.), are written into the statute, but otherwise users who want to engage in unauthorized decryption are relegated to a rulemaking procedure overseen by the United States Copyright Office. At this point, citizens have a chance every three years to persuade the Office (and the Librarian of Congress, who is the final decider) that they "are, or are likely to be ... adversely affected [by the prohibition] in their ability to make noninfringing uses ... of a particular class of copyrighted works."

During the original war of words around the DMCA, back in 1995-1998, public interest advocates argued loudly that the new anti-circumvention rules could "chill" the exercise of fair use rights. The 1201(a) (1) rulemaking was offered up, in the final days of that legislative battle, as a grudging concession to the truth of that argument. But over the first several rounds, various groups of self-proclaimed fair users had a tough time making their cases to the Office's (or the Librarian's) satisfaction. As a result, most of the exemptions granted in the 2000 and 2003 proceedings were both narrow and technical. But in the 2006 round, there was a perceptible shift, with an exception carved out for film studies professors who needed to rip DVD's (most of which are protected by the movie industry's Content Scrambling System, or CSS) to extract clips for classroom use. The person who deserves most credit for achieving this breakthrough was Professor Peter Decherney of the University of Pennsylvania. But I should say, in the spirit of full disclosure, that the Glushko-Samuelson Intellectual Property Law Clinic at the Washington College of Law, American University, which I direct, acted as Prof. Decherney's counsel in the proceeding. Specific though the exemption was, it's recognition hinting at possibilities to come. In any event, it was enough to invigorate the public interest and education communities. When the Copyright Office announced a rulemaking late in 2008, professors, libraries (through the Library Copyright Alliance and the Music Library Association), the EFF, the Organization for Transformative Works, representatives of the K-12 media literacy community, and even documentary filmmakers responded in force, filing requests for exceptions to accommodate a broad swath of practices, educational and otherwise. And last Monday, in the Federal Register, we finally got the results, which amply justify the delay.

Before going further, the broad details. In the Librarian's words, exemptions (covering period until the next rulemaking) were issued to cover:

(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

(i) Educational uses by college and university professors and by college and university film and media studies students;

(ii) Documentary filmmaking;

(iii) Noncommercial videos

(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

(3) Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network.

(4) Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:

(i) The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and

(ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.

(5) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace; and

(6) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book's read-aloud function or of screen readers that render the text into a specialized format.

Some of these (especially numbers 4 and 5) are exemptions of the familiar and somewhat mind-numbingly technical sort, relating to possible overreaching and obsolescence in the arcane field of computer security - vitally important to some, but obscure to most. Of greater general interest are the second and third exemptions (which create - or, at least, legitimize, interesting new consumer choices for cell phone users). The sixth, a carry-over from previous rulemakings, deals with a topic (access to e-texts by print-disabled persons) that has taken on new importance in recent months - and came to be included by an interestingly circuitous path. I'll hope to have something to say about some of these in future installments of this blog. But first things first.

The initial exemption, relating to circumvention of CSS on DVD's, benefits educators and students, documentary filmmakers and remixers/vidders. Although, as the statute requires, it is formally addressed to a "class of works" ("motion pictures on DVD's..." it effectively speaks to the needs and practices of several significant classes of users. But before discussing these particularly, I should make some generalized points of possible interest about how these conclusions were reached. One is the take that the Copyright Office, in the Register's Recommendation, took on the general issue of what constitutes "fair use." The legislative history of Sec. 1201(a)(1) makes it clear that first and foremost among the kinds of "noninfringing uses" potentially at risk were fair ones Thus, the Office was required, in connection with its recommendations, to explain why some (if not all) of the activities to be enabled by a proposed exemption would qualify under this rubric. The relevant passage in the Recommendation is at pp. 49-52, and deserves to be quoted in extensive (if somewhat truncated and unfootnoted) form:

All of the proponents and supporters of the classes covering CSS-protected DVDs for educational, documentary and noncommercial videos have demonstrated that some of the underlying uses may be fair uses. The educational users, the documentary filmmakers and the noncommercial, transformative users all fit squarely within the illustrative uses of criticism, comment, or teaching, set forth in the preamble of Section 107.

Under the first fair use factor, the proposed uses of portions of motion pictures are generally transformative in nature--they use the work for a different purpose than the entertainment purpose of the assessing a transformative use.

The Register does not conclude that all, or even most, of the examples offered by proponents of these classes - and especially of the class consisting of "noncommercial videos" - are transformative in the sense that is relevant to an analysis of the first fair use factor. However, it is fair to conclude that more than a trivial portion of those examples do qualify as transformative.

Despite the frequently commercial nature of the use with respect to documentary filmmakers, the activities of documentary filmmakers may be transformative in nature and purpose. Documentary filmmakers and noncommercial vidders may use works in order to criticize or comment upon the copyrighted work being used. When a motion picture is used for purposes of criticism and comment, such a use is a form of quotation, long recognized as paradigmatic productive use with respect to textual works, which is at the core of fair use's function as a free-speech safeguard. For example, clips from one or more copyrighted works may be used to make a point about some perceived theme or undercurrent in works, such as violence against women or racism. In other situations, portions of works may be used and remixed in order to make political statements about candidates or copyright law itself.

Under the second fair use factor, the nature of the copyrighted motion picture is generally creative in nature and thus within the core of copyright's protective purposes. On the other hand, the work is also published if it is available on DVD. The ambiguity created by the weight of these intra-factor inquiries must also be considered in relation to the transformative purpose of the uses. The Supreme Court has stated that in relation to certain transformative uses, the second factor is of limited assistance in evaluating whether the use is a fair use....

Under the third factor, an essential component of all of the proposals for use is that only a short portion of the work is used. Quantitatively, the evidence in the record suggests that most of the uses by educators, students, documentary filmmakers, and noncommercial, transformative users involve a relatively small portion of the copyrighted work.... Qualitatively, although the portion used may be an important scene or scenes from one or more movies, the transformative nature of the use in relation to a published work tends to avoid a situation where the portion used, either quantitatively or qualitatively, would adversely affect or supersede the potential market for or value of the underlying works.

Under the fourth factor, when the use of the work is transformative, there is likely to be no interference with the primary or reasonable derivative markets for the underlying work. Opponents of the proposed classes did not identify any use by educators, documentary filmmakers, or noncommercial vidders that has harmed the market for, or value of, any copyrighted motion picture. Any diminution in value resulting from the use for purposes of criticism or commentary would also not be cognizable harm under the Copyright Act....of small portions of motion pictures for criticism or commentary is not likely to be a market that the copyright owner would reasonably be expected to exploit. Indeed, even if such a potential market were reasonably anticipated, it would not eliminate the need to permit an unauthorized use that was fair....

On balance, the fair use analysis tends to demonstrate that many of the uses sought by the proponents may be considered fair uses. Importantly, the Register is not making any judgment as to whether any particular example offered by proponents actually is a fair use.... The point is that a cognizable basis has been established for concluding that some (probably many) uses in each of the proposed classes are likely to qualify as noninfringing uses under established judicial precedents.

Second, there may be more (or perhaps less) than meets the eye to the limitation of the first exemption to cases in which users of video clips are engaged in "criticism or comment" (terms derived, of course, for the preamble to Sec. 107 itself). In fact the recommendation takes a broad view of the kinds of uses that may qualify under this rubric. Consider, for example, the approving reference to remix videos in which "portions of works may be used and remixed in order to make political statements about candidates or copyright law itself." That's a kind of commentary, for sure, but not - to be clear - direct commentary on the work being used. Rather, it's illustrative use of an excerpt from a copyrighted work in the context of a comment on a larger social phenomenon. In other words, this is an understanding of "criticism and comment" that covers a very wide range of discursive practice - not coextensive with the category of all transformative uses, but expansive nonetheless.

With those introductory observations out of the way, it's important to emphasize again the extraordinary breadth of the exemption. College-level teachers of all kinds - not just those who specialize in media - can claim its benefits for their teaching. So, for the first time, can a significant number of higher ed students. Documentary filmmakers, who for all their dedication to truth-telling are also interested in (if not always successful at) money-making, get its full benefit as well. And so does the vast, emergent, inchoate community of volunteer, DIY video makers (some highly sophisticated and others not) who populate YouTube and the platforms with content. In extending the exemption's reach so broadly, the Copyright Office seems to have discounted the strenuous arguments of content owners, made at various points throughout the rule-making proceeding, that officially blessing any breach in the wall of CSS security, no matter how well-justified, would fatally undermine the efforts of the motion picture industry to protect its assets against Internet piracy!

One important concession to the industries concerns Copyright Office's decision to recommend the restriction of circumvention to situations where the user aims to include a "short" portion of an existing work in another, new work - while recognizing that longer excerpts sometimes may qualify as fair use in under ordinary copyright law. How significant the restriction is remains to be seen. For one thing, it applies literally to the amount of material to be used, not the amount actually decrypted. Although the point was energetically debated during public hearing on the rulemaking, it seems that the exemption does cover (for example) a documentary filmmaker who breaks the CSS code on an entire DVD movie in order to extract a 30-second clip. And, as the language already quoted illustrates, what qualifies as "short" is (to a great extent) the user's call. Although the proceedings heard calls for fixed limits (either so many minutes, or some percentage of the work) on the length of clips the extraction of which would qualify as exempt circumvention, none were included in the final rule. In other words, it's a rule of reason, with the reasoning to be done, in the first instance, by the user. And, in practice, it's hard to imagine a court second-guessing a reasonable good faith decision about how much material was appropriate to fulfill the user's transformative purpose.

At first blush, there's also another apparent problem with the exemption: the fact that it applies specifically to "motion pictures." Of course, the field of preexisting audiovisual material from which teachers, students, documentarians and video makers draw includes television programs as well as movies, and often the best source of high quality television programming will be a CSS-protected DVD. But not to worry. As the Copyright Office Recommendation makes clear, the term is being used in the rule in its technical sense, per the Sec. 101 definition: "... Audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any." So TV is definitely covered. Of course, other kinds of copy-protected audiovisual works (video games are the most obvious) do fall outside this exemption.

Finally, although the point may already have been made, I want to stress again the importance of the inclusion of documentary filmmakers in the first exemption. This is a tribute to the powerful presentations made by Gordon Quinn (of Kartemquin Films) and other representatives of the documentary community, to Prof. Jack Lerner and his students at the University of Southern California Intellectual Property and Technology Law Clinic (who helped put the case together), and to Los Angeles copyright lawyer Michael Donaldson, who advised them. The recognition that commercial fair use deserves recognition in the scheme of 1201 exemptions, along with educational and other noncommercial activities, is of enormous practical and conceptual importance. It underlines the fact that fair use rights belong to everyone, and that restrictions on those rights are of concern whoever they fall on.

In the next installment, I'll write a bit more about the significance of the inclusion of noncommercial video makers. I'll also provide some detail about what the first exemption doesn't include - and why. For one thing, it doesn't cover college level students outside of film and media studies courses. Likewise, the Copyright Office rejected arguments made Professor Renee Hobbs of Temple University (another client of the American University IP law clinic) on behalf of K-12 media literacy educators. In a nutshell, the Copyright Office concluded that these users needed to make a better showing about why they needed DVD-quality images to accomplish their teaching and learning goals. But for those who didn't get the nod, the Copyright Office Recommendation did offer a bit of immediate solace - making clear that they are free to take advantage of a variety of "screen capture" softwares in aid of their fair uses of copyrighted audiovisual material. This interesting proposition is derived from the Office's conclusion that these tools don't "circumvent" technological protections within the meaning of the statutory prohibition. And this observation presumably applies as well, to anyone who seeks to make fair use of non-motion picture audiovisual content (those video games, again). The legal status of screen capture hasn't been free from doubt and, of course, the Copyright Office doesn't have the final word. But its conclusion is likely to persuasive when or if the issue ever finds its way to court.

[More to come]

Last month, Victoria A. Espinel, the new U.S. Intellectual Property Enforcement Coordinator, transmitted to President Obama and Congress the 2010 "Joint Strategic Plan on Intellectual Property Enforcement Coordination" -- the first report of its kind. Much of what is to be found in the 65-age document is fairly predictable -- a collection of data points on the damage piracy does to the U.S. economy, a list of high level strategic goals (an intergovernmental working group to combat counterfeits in U.S. procurement, more information sharing with rightsholders, better tracking and reporting of enforcement activities, for example). And a significant chunk of pages is devoted to detailing enforcement activities undertaken by various U.S. agencies in the last year. But scattered throughout are some more unexpected references. Thus, for example, "Improved Transparency in Intellectual Property Policy-Making and International Negotiations" (!) is listed (at p. 8) as an major strategic objective. This comes, of course, at precisely the moment at which the U.S. government (and others) are being challenged by civil society organizations for keeping their cards in the current negotiations toward ACTA (the proposed "Anti-Counterfeiting Trade Agreement") too close to the vest.

Especially notable -- and certainly unexpected -- is the attention that the report devotes to fair use (and other limitations and exceptions to copyright." Thus, for example, the Introduction, which lists reasons to support enhanced IP enforcement (beginning with "Growth of the U.S. economy, creation of jobs for American workers and support for
U.S. exports" and "Promotion of innovation and security of America's comparative advantage in the global economy") concludes with an item that seems worth quoting at length: "Validation of rights as protected under our Constitution. Article I, Section 8 of the U.S. Constitution vests in the Congress the discretion to establish laws to promote science and artistic creativity 'by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.' Over the last two centuries, our Founding Fathers have been proven right. One of the reasons that the U.S. is a global leader in innovation and creativity is our early establishment of strong legal mechanisms to provide necessary economic incentives required to innovate. By the same token, fair use of intellectual property can support innovation and artistry. Strong intellectual property enforcement efforts should be focused on stopping those stealing the work of others, not those who are appropriately building upon it."

This ungrudging acknowledgment of the importance of fair use and cognate doctrines is unprecedented, to the best of my knowledge, in official U.S. pronouncements on the subject. Thus, for example, the 1995 "White Paper" on "Intellectual Property and the National Information Infrastructure" discussed included an extended (if somewhat inaccurate) account of fair use that never got around to suggesting why limits on copyright were of positive importance in innovation policy. Indeed (in a discussion at fn. 266) the White Paper goes so far as to characterize fair use as a "tax" on copyright owners? Not only does the new report acknowledge the doctrine's importance, but it backs up the point with citations to the Computer and Communications Industry Associates recent publication, "Fair Use in the U.S. Economy" (about which I blogged sometime ago) -- including that document's claim that "Exports of goods and services related to fair use industries increased by 41 percent from $179 billion in 2002 to $281 billion in 2007."

So the coordinator deserves respect for having given fair use the attention it deserves as a structurally important, innovation-promoting feature of U.S. copyright. Which, in turn, raises a question: If the fair use (and other copyright exceptions) work so well for the U.S., why aren't we promoting them in negotiations with trading partners. As we all know, the intellectual property provisions of various Free Trade Agreements into which the U.S. has entered with trading partners in recent years (for example, the U.S.-South Korea pact of 2007) speak to minimum standards for both substantive copyright protection and enforcement. And everything we know about the current drafts of ACTA suggest that its copyright provisions are similar, stressing enhanced protection for rightsholders but not mentioning public interest-orientation doctrines like fair use. Indeed, it is this characteristic of the ACTA draft that prompted a group of international experts who convened on June 23, 2010 to declare that (among other things), "ACTA would distort fundamental balances between the rights and interests of proprietors and users, including by introducing highly specific rights and remedies for rights holders without detailing correlative exceptions, limitations, and procedural safeguards for users."

What's up, then, with U.S. copyright diplomacy? Are we simply being hypocritical by pushing unbalanced copyright regimes on other states, while knowing that part of the secret of our global dominance in information commerce is our own dedication to offsetting owner's rights with pro-access doctrines like fair use? Or do we claim that international agreements should only address proprietary rights, not exceptions and limitations? The goal of transparency articulated in the Enforcement Coordinator's report calls would be well served by an explanation of the apparent anomaly.

As I've suggested before, we don't really have much direct information from the courts, which have the last word on this matters, about what constitutes fair use in an educational setting. The perambulatory language of Sec. 107 mentions "teaching" as an area of special sensitivity, and the statutory first factor appears to single out uses for "nonprofit educational purposes" as favored ones. But that's about all we know - at least for now. Litigation pending in federal court for the Northern District of Georgia (Atlanta) may soon change that.

What, then, can we learn from Judge Orinda Evans' September 30 Order disposing of cross-motions for Summary Judgment in the "E-reserves case," Cambridge University Press et al. v. Mark P. Becker, the Georgia State University's President, in which a variety of other school officials (including librarians) and Regents also were named as defendants "in their official capacities"? For one thing, it puts on display some of the potential pitfalls that face copyright plaintiffs who square off against state schools that enjoy the benefit of sovereign immunity under the Eleventh Amendment; I'll have more to say about that shortly. For another, the decision provides a road map of how this potentially important controversy is likely to go forward, and I have a thought on that as well. The most important take-away, however, is that institutional copyright policies that lay out ways for faculty (and others) to understand which of their activities are - and aren't - within "fair use" matter a lot!

So let's begin there. Judge Evans leaves no doubt that GSU's new 2009 Copyright Policy, based on a self-evaluation checklist originally developed by Kenneth Crews (currently at Columbia University and also an expert for the defense in this case) is at the very heart of the dispute. That's because - thanks to the Eleventh Amendment and sovereign immunity -- this action must be limited to prospective injunctive relief against the school's policies, rather than damages for anyone's past conduct. So (according to Judge Evans) only the current policy is at issue - if it's adequate, then the plaintiff publishers simply have no case. This much, at least, seems pretty straightforward. From here on, however, things get a bit less clear.

It's important to emphasize that this decision does not dispose of the litigation, or even pass final judgment on the 2009 policy. But it does contain some fascinating hints, in connection with the discussion of various forms of infringement liability school official might potentially face. In effect, the judge concludes that the most likely basis on which there could be liability in case like this one is so-called "contributory infringement" - which exists when one person knowingly encourages another to infringe. Thus, the decision suggests, the proper role of university officials in this area isn't to police e-reserves sites to eliminate all infringing content. That role is, according to Judge Evans, to provide sound, actionable fair use guidance (including but not limited to institutional policies) to members of the university community -- especially faculty. Thus, the judge notes that "The 2009 Copyright Policy on its face does not demonstrate an intent by Defendants to encourage copyright infringement; in fact, it appears to be a positive step to stop copyright infringement" (noting that the policy "seems comparable to, and in many cases far more comprehensive than, the copyright policies instituted by other colleges and universities" ). While making clear that the proof of the pudding is in the eating -- stating that those who "formulated the ... Policy are also responsible for overseeing its implementation" -- the Judge shows a clear predisposition for a thoughtful process-based approach to fair use decision-making.

Is this the only kind of institutional fair use policy that would or could pass judicial muster? Pretty clearly, the answer to that question must be "No"! What's interesting here isn't that Judge Evans has singled out a particular policy for praise, but that she's clearly indicated to a policy that outlines a thought process by which university employees can arrive at responsible decisions about whether there activities are fair uses, rather than one that provides bright-line "dos and don'ts" can qualify as sufficient. And this suggests that there is work to be done on further developing and evaluating approaches to designing and implementing process-based institutional policies in this area.

Would the plaintiffs have had a better shot if they had sued a private university, which didn't enjoy the benefits of sovereign immunity? Or if they had named individual GSU faculty members as defendants, along with officials and administrators? Perhaps, or perhaps not. On the one hand, this strategy might have permitted the plaintiffs to reach back and bring some get pre-2009 policies and conduct under them before the court. On the other, it seems clear that whatever defendants were named, this judge would have limited the liability of school officials to whatever they had done to enable or encourage infringement - so-called secondary liability -- rather than tagging them with direct responsibility for the activities of faculty. Once again, the issue would come down to the adequacy of institutional policies to forestall infringement, and their implementation.

So where will things go from here? In the next phase of the litigation, as envisioned by Judge Evans, plaintiffs will have to single out uses that they believe demonstrate that infringement took place under Georgia State's 2009 policy, and the defendants will need to argue for their fairness. On this basis, it seems, the court will assess (if it ever comes to this) whether the policy works! The standard, presumably, won't be whether reliance on the policy has eliminated all infringement, but whether or not it has kept infringement within some, as yet undefined, reasonable limits. The court puts it this way: "Plaintiffs must put forth evidence of a sufficient number of instances of infringement ... to show ... ongoing and continuing misuse [of the fair use defense]." "Misuse" sounds like a standard that pegs the required level of proof pretty high, though exactly how high remains to be seen. Presumably, the larger the "sample size" the more convincing this demonstration will be. On the other hand, there will need to be some check on possible "cherry picking" by the plaintiffs - i.e. focusing on perhaps atypical cases in which faculty armed overstepped the bounds of fair use, while ignoring those in which they did not. From a procedural standpoint, however, it isn't clear how this will be accomplished.

What that ruling sets up, in any event, is a proceeding in which a relatively high number of individual faculty decisions to post materials on e-reserves will be scrutinized with some care. Having to litigate the specific fair use bona fides of a relatively large number of particular educational uses presumably is not the course that the plaintiffs in this litigation were looking forward to having to pursue. But it now will be hard to avoid, since it seems doubtful that they will have any basis to appeal Judge Evans' ruling on summary judgment at this point. And we will all be the beneficiaries, in the sense that we will know more about questions like these: Can educational use of an excerpt from a general non-fiction book, or of a scholarly article, be "transformative,", in that the teacher repurposes the borrowed content and adds value to it by placing it in the specific context of a course syllabus? Does it matter whether the material is offered to students as a reading for class discussion, or as background? And how is the appropriate length of such an excerpt to be gauged? Whatever the outcome, we could learn a lot from Georgia State!

Higher education is one of the many lands where copyright questions flourish and esoteric responses don't. If you live in this land, as I do, your actions relative to using copyrighted materials for teaching, learning, scholarship, and research are constrained by a number of (somewhat) inflexible realities:
1) Faculty, staff, and students need to use copyrighted content to produce quality courses, learning experiences, and research.
2) The vast majority of materials used for these purposes are purchased, licensed, or original works of university members.
3) While many are aware at some level that copyright law may intersect with their professional efforts and they want to behave lawfully - they have neither the time nor the tools to continuously successfully navigate the maze of copyright law and court decisions.
4) Money is tight, making fair use all the more critical.

However, if you know nothing else about fair use, you know that it is not designed to spit out quick, definitive answers, especially to the increasingly complex scenarios being generated by rapidly evolving technology. Nevertheless, definitive answers are still hoped for, especially if the answer facilitates the activity as a reasonable fair use.

Transformative Uses As Fair Uses

As budgets get tighter (or nonexistent), education (a favored use anyway) looks ever more longingly at fair use to accommodate the few uses or works we haven't already paid for. The current trend in court cases involving copyright infringement and fair use defenses has focused the courts' fair use analyses (evaluation of the four fair use factors) on whether or not the defendant's use of or purpose in using the plaintiff's work was or was not transformative. Indeed, the court's opinion on whether or not the defendant's use was transformative enough has become pretty much the deciding factor as to whether or not the use was fair and, therefore, not infringing. This emphasis on transformative use holds true (for the most part) even when the entire work is used, even when the work itself has not been altered, and even when the use is commercial.

If such generalizations as I have just made are taken at face value and severed from the case facts themselves, one could see how nearly every use could be maneuvered into a category of "transformative" use and, therefore, justified. I've heard the suggestion that copying and posting entire scholarly journal articles into online courses could be characterized as a transformative use because the author of the article wrote it for colleagues' information and education, not for students. That stretches the notion behind transformative use, including some questionable assumptions about the original author's purpose(s).
There is also the obvious question about the intersection or potential overlap between a "derivative work" and the "transformative" use.

Since these rather broad generalities about transformative use tend to spread like wildfire, because they tell people exactly what they want to hear, a closer look is warranted.

First, what is a derivative work and what is a transformative use? The Copyright Act defines a derivative work as a "work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art, reproduction, abridgment, condensation or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a "derivative work." Making a derivative work is one of the exclusive rights of a copyright holder. Note, in particular, that the definition of a derivative work even includes any other form in which a work may be ...transformed. Also note, though, that it refers to a transformed work - a transformation of the content itself - but not necessarily a "transformative use." So a work could be transformed but not actually transformed for a "transformative purpose."

Hmmm. What, then, is a "transformative purpose?" The most quoted definition or description comes from Justice Story in the Campbell v. Acuff-Rose decision (the "Pretty Woman" case) wherein he asks whether the new work merely "supercedes the objects of the original creation or instead adds something new, with a further purpose or different character, altering the first with new meaning or message?"

So how do the courts reconcile the concept of a work 'transformed' so as to constitute a potentially infringing derivative work with the trend towards finding fair use where a work has been used for a transformative purpose?

In order to get a handle of some sort on this area, I researched case law and law review articles. The clearest and most informative analysis for me was found in a law review article by Anthony Reese in The Columbia Journal of Law & Arts entitled "Transformativeness and the Derivative Work Right" (31 Colum. J. L. & Arts 467 (2008). I highly recommend it and I credit Reese with much of what I will summarize from here on.

After thoroughly reviewing dozens of cases, Reese concludes that "the appellate courts do not view fair use transformativeness as connected with any transformation involved in preparing a derivative work, and that in evaluating transformativeness the courts focus more on the purpose of a defendant's use than on any alteration the defendant has made to the content of the plaintiff's work."

So, the concepts are separate: transforming the work has to do with the derivative work right; transformative use has to do with the defendant's purpose in utilizing the work, whether or not the original is altered or not and figures into the fair use analysis.

Reese then reviews the courts' treatment of the four possible scenarios:
1. Transformed work and transformative purpose
2. Unaltered work and transformative purpose
3. Transformed work but no transformative purpose
4. Unaltered work and no transformative purpose

The first, not surprisingly, generally results in a finding of fair use and the last in a finding of infringement. It's the two middle scenarios that are of most interest. He quotes the Ninth Circuit as stating "even making an exact copy of a work may be transformative as long as the copy serves a different function than the original." (Perfect 10 case) Nearly all the cases where a transformative use was found resulted in a finding of fair use. Conversely, if there was no finding of a transformative purpose, even if the original had been altered, the cases concluded no fair use. (like the Seinfeld Trivia book case).

The case that interested mo most, from the point of view of faculty inserting works into their online classes and then trying to assert a transformative purpose argument was Infinity Broad Corp. v, Kirkwood. In that case, the defendant marketed subscription access to live radio broadcasts. His claimed purpose was "informative" because he theoretically was marketing access to subscribers so they could evaluate talent, advertising, programming and so forth. He asserted this was a different purpose from the radio station's entertainment purpose. The court acknowledged that the purposes were different, but difference alone did not necessarily make the second purpose a transformative one. Instead the court found Kirkwood's purpose non-transformative "because it involved 'neither new expression, new meaning nor new message' and instead "merely repackages or republishes the original.'" (from the Reese article)

This strikes me as awfully close to some suggestions I mentioned regarding faculty using scholarly articles to teach online because their purpose was instruction and the original purpose of the articles was communication with other scholars.

It also follows, as Reese suggests, that one should exercise caution in imputing a specific and/or single intent or purpose to the original author. It may well be that the author had multiple motivations behind creation of her work. You may also be wrong and/or cross the line into presumptuousness when you decide all by yourself, the creator's motivation for making the work in the first place.

Peggy Hoon

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