©ollectanea

Judith Thomas does a masterful job of explaining best practices and challenges in creating a digital motion media collection in this article, Digital Video, the Final Frontier - 1/15/2004 - netConnect. I'm studying digitizing video right now at the iSchool, and this was an optional reading. I found it most inspiring because there's not one mention of copyright or rights or permissions in the entire article. It's simply not on the table. Wow. That's like a dream, isn't it?

Several years ago I was invited by the Library of Congress to participate in a 3 day discussion about digital archiving. The setting was in gorgeous Berkeley, CA at a fabulous hotel. The other invitees were a glittering array, including the Register of Copyrights, MaryBeth Peters. I gladly accepted, and I felt honored to be invited. But, a curious thing happened at the very beginning of the gathering. All the participants agreed that they would define the copyright issues out of the discussion. I don't know how the Register felt about this, but it made me feel a little under-utilized, to say the least (useless, puts it more bluntly). I was absolutely amazed at the quantity of ideas entertained, the quality of the solutions proffered, the creativity of the group. If copyright had been on the table, the group might just was well have sat around the pool gossiping. It would have been, in effect, a nonstarter.

Since that meeting, I've begun more and more to believe that for some things libraries need to do for the future, they just need to be done without much concern for what the law says today. The very idea that anyone who's job it is, or I should say who's mission in life it is, to preserve for posterity, simply cannot stand by and watch important pieces of the 20th century just crumble before their eyes because of fear of getting sued, more often than not, by someone who could care less what you're doing, or who's actually dead, or who's descendants could care less, etc. etc. etc. etc. etc. etc.

I noticed earlier today a post at Michael Geist's blog about a remarkable speech by Bruce Lehman, former Commissioner of Patents and architect of the DMCA, notably including the anti-circumvention provisions, in which he suggests that we're entering a post-copyright era. He also admits that the DMCA as an approach has failed...

This idea that copyright is becoming irrelevant is actually one of the things that contributed considerably to my decision to get a degree in information studies and refocus, away from copyright. It's just terribly out of sync right now and as much as I hate to admit it, I truly feel that it just has to be ignored in some of its more egregiously out of sync aspects. (I'm waiting to be struck dead by a lightening bolt... waiting... waiting...) This is like the moral dilemma of our time (for those of us who think about things like this), like civil disobedience. Defiant preservation, organization, indexing, and access. Will wrong-headed and failed laws go quietly into the night at some point, or do we just turn away and embrace new paradigms created on their ruins, such as Creative Commons licenses and new business models that rely on something other than artificial scarcity to motivate creativity? And will libraries just quietly do what has to be done?

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.

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.

As I mentioned in an earlier post ("Shooting Fish In a Barrel"), my university was one of the 25 named bad guys receiving letters about online piracy. My earlier blog was about the College Opportunity and Affordability Act winding its way through the legislative system. Among other things this act speaks to is requiring universities to explore technology-based deterrents to prevent illegal activity.

One such nifty "technology based deterrent is the "University Toolkit"
being offered (FOR FREE, can you imagine?) by the Motion Picture Association of America (MPAA). Not being a "techie", I can get left behind fairly easily on these things and I can also get spooked about privacy invasions with almost no effort at all. (My first reaction to things like On-Star was not 'Great - someone somewhere in the ether can unlock my car for me' but rather 'Good grief, someone knows where I am all the time'.)

Anyway, when I read the Washington Post's Security Fix blog by Brian Krebs titled "MPAA University 'Toolkit' Raises Privacy Concerns" where detailed explanations of the Toolkit are discussed, I was horrified. (this is a blog so I figure I can say things like "horrified" and "yikes")

Apparently, installing the Toolkit on your university's network is like letting the fox into the henhouse. Once installed, the software phones home to the MPAA telling them that it is 'in' and checking for a new version (and who knows what's in that). According to Security Fix, "installing and using the MPAA tool in its default configuration could expose to the entire Internet all of the traffic flowing across the school's network" automatically configuring "all of the data and graphs gathered about activity on the local network to be displayed on a Web page complete with ntop generated graphics showing not only bandwidth usage generated by each user on the network, but also the Internet address of every Web site each user has visited."

Does this bother you? Bothers me. Bothers Steve Worona (director of policy and networking programs at EDUCAUSE) who opined that "no university network administrator in their right mind would install this toolkit on their networks."

In response to these criticism, the MPAA, via Craig Winter, deputy director for Internet enforcement (does that sound like web cop to you?) said the toolkit was in the 'beta' phase. Again, no technology expert here, but why would you release and promote something not finished?

Rather than continue to repeat this informative blog entry by Krebs, I would encourage you to read it yourself, as well as some of the follow-up comments.

When I consider how some of these associations are treating their customer base, the saying about killing the goose that lays the golden egg comes to mind. I laughed out loud the other day when I heard someone say on the radio (completely different context; can't remember who or I'd credit) "We don't want to kill the golden goose; we just want to strangle it until it gives us all its eggs."

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.

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!

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?

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.

Evidence of my blog learning curve here:

This footnote was meant to be with my previous blog: On Being Relevant: Copyright and Higher Education -

Notable exceptions to the 'no relevancy' attitude include university libraries, the IT and student affairs groups that must respond to student P2P file-sharing activities, and Legal Affairs, who understands the problem, but often has insufficient time and resources to deal with it. This is not an all-inclusive list.

P

By way of explanation and introduction, I have been given the opportunity and privilege of being a guest blogger on ©ollectanea for the next month or so. Some of you already know me through other CIP activities, including blogging several years ago. I'm really happy to be "on" with Peter Jaszi since I have long been a fan of his and of his work, particularly the work with the American University Center for Social Media (http://centerforsocialmedia.org) and its facilitation of Best Practices documents. (http://www.centerforsocialmedia.org/resources/fair_use_and_teaching)

What I find very interesting about the Center's work and its development of best practices (that have already been widely accepted) is the way this group has facilitated and reinforced the belief that copyright is indeed relevant, in the world of documentary film studies as well as other areas. Of the many worthwhile objectives the Best Practices documents meets, unmasking copyright as relevant is a most remarkable achievement. Whether the Center affirmatively set out to establish the relevance of copyright or whether they were simply dealing with a uniquely "aware" group, I do not know.

I have come to the conclusion that the greatest challenge for campus copyright educators (as well as those trying to reach the general population) lies in helping individuals appreciate copyright's intimate relationship to many of their daily activities, both at work and at play. If copyright is not understood and accepted as even being relevant to core campus activities - if it is viewed instead as optional or a "luxury", educational efforts will not succeed. Indifference will rule the day and the campus will be unequipped to participate in the copyright debates and national discussions that currently dominate scholarly communication.

I have been involved in copyright education at higher education institutions for fifteen years; given and attended dozens and dozens of presentations and workshops all over the country; and developed several copyright educational web sites including the TEACH Act Toolkit and the Know Your Copy Rights. So I have spent some time in the various strongholds or centers of copyright expertise, understanding and appreciation. Being among like-minded colleagues is almost like a vacation. It's at least a validation of your choice to spend your waking moments doing what others also consider a worthwhile venture. What a relief to be around people who understand the manner in which copyright has soaked into the very fabric of life in American - whatever their take on copyright law may be. For purposes of appreciating copyright's role, its limitations, nuances, goals, and the opportunities present for shaping its evolution, it doesn't even matter whether you are sitting amongst a group at the RIAA, MPAA, or AAP or at the EFF, Creative Commons, or Public Knowledge. Because in these groups, all are safe with the cocoon of consensus that copyright matters to the average person and has relevance to how various aspects of life are conducted.

These are great and stimulating places to spend time and I thoroughly believe in and applaud the work they do. However, I spend most of my time outside that cocoon, in the "trenches", if you will. So do you, unless you're one of the lucky few who get to skip that first great big hurdle - the one that consistently leaves most universities at the starting line on a horse that won't run.

That hurdle is the complacency evident where copyright is concerned; the pervasive apathy that prevails in all (including, at times, the very upper administration) but a few areas or groups at the university; the belief that copyright plays no role in teaching and outreach activities. The conviction that copyright considerations are optional and that it is ridiculous, if not delusional, to suggest that permission might be necessary when all that is being done is using the best resources available to teach - a noble and worthy cause. Academia doesn't make money from its works and is, in fact, happy to share them; ergo, the creators that are being "borrowed" from no doubt share that same attitude.

It becomes virtually impossible to convey copyright information and assistance to those who believe it has no current relevance to anything they do and has never had any relevance or inhibited their manner of presenting material to their students. They assert that the correctness of this attitude is evident in the lack of any negative consequences resulting from the practice of completely ignoring copyright law when teaching in the past. In that same past, when the copyright and distribution of copyrighted material was in "analog" form and face2face teaching was the norm, nothing happened if copyright was ignored by faculty (coursepack permissions were handled and paid for by copy shops and costs passed to the students). Now, in the digital world, they believe nothing has changed. Those who handle their own online courses or online components of courses generally believe that fair use and access controls suffice and copyright remains irrelevant.

Although I did not personally attend the 2009 Annual EDUCAUSE conference this past fall, I was able to view the keynote address by Lawrence Lessig online and it was fascinating. See "It is About Time: Getting Our Values Around Copyright" (http://blip.tv.file/2827842). I recommend taking the time to listen to his presentation.

I mention it here because Dr. Lessig made several initial points, sometimes using quotes from Jessica Litman, that resonated powerfully with my growing observation that for most people, including or particularly those in higher education institutions, copyright is perceived as having no significant relevance to the core teaching mission of the university. Dr. Lessig refers to copyright as the huge elephant in the room but I would suggest that in many places, the elephant has left the building.

Dr. Lessig stated that, in the past, copyright played a tiny role in the way people engaged with their cultures. Quoting Dr. Litman, "At the turn of the century {19th to 20th}, U.S. copyright law was technical, inconsistent and difficult to understand but it didn't apply to very many people or very many things... If you were an author or publisher,..playwright or producer of plays, or a printer, the copyright law bore on one's business... But ... booksellers, record publishers, motion picture producers, musicians, scholars, members of Congress, and consumers could go about their business without ever encountering a copyright problem." Then, according to Dr. Lessig, things changed radically because of technology and the current context is one where copyright reaches across the spectrum of ways in which we engage in our culture.

Continues Litman, "Ninety years later, U.S. Copyright law is even more technical, inconsistent and difficult to understand; more importantly it touches everyone and everything...Technology, heedless of law, (emphasis added) has developed modes that insert multiple acts of reproduction and transmission - potentially actionable events under the copyright statute - into commonplace daily transactions. Most of us can no longer spend even an hour without colliding with the copyright law." (emphasis added)

As I stand with a foot in each world, I wonder what hybrid copyright law creature will emerge from such incompatible versions of reality - those who recognize that a great deal of what they do is affected by copyright and those who barely give it a second thought. Where do you even begin? How can you possibly convince our children, our students, of the illegality of P2P music file sharing when their role models run digital music audio reserves or place entire music tracks in their online courses? That you cannot copy large portions of works when private companies are allowed into their library to scan entire library collections? How do you split those hairs in a way that is meaningful and credible to the average student?

In a world of scanning, burning, streaming, and ripping, how does copyright achieve relevance when campus leadership, down through the levels of the faculty pyramid, are satisfied with a courteous, but dismissive, nod in the direction of copyright? How can copyright be anything but ignored when educational institutions consider copyright education and guidance optional?

How does copyright achieve and maintain relevance in an atmosphere that acknowledges only that which threatens to cost a lot of money?

You got me.

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.

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!

Recall the famous scene at the end of the classic Clint Eastwood western, "The Good, the Bad, and the Ugly." Eastwood and the two villains are arranged in a circle, each waiting for the others to draw their guns and start the fight. Everyone wants the same thing (confederate gold), but no one trusts either of the others. The unforgettable music plays and the camera closes in on each pair of eyes, shifting back and forth, watching the others for any movement. The build-up to the eventual gunfight seems to last forever.

In considering the diverse choice of topics of import we might discuss here, it seemed natural to mentally review the readings and work projects that have recently dominated my time. I noticed an interesting convergence of people, online posts, work assignments, and even a bit of my personal life. These individual components seemed to reinforce that we, the stakeholders in the information, technology, and copyright ecosystem, have allowed ourselves to be herded by copyright and technology-induced paranoia into a circular stand-off characterized by some very core misunderstandings of the goals and capabilities we each need from the same intellectual property. We've forgotten what we used to know about each other, perhaps even lost some mutual trust and respect. Of course, this is not universally true - there are a host of examples of productive collaborations - but enough roadblocks remain to prompt articulation of some basic realities that seem to have been forgotten in the crush of information overload, a poor economy, and the need to avoid extinction. The vehicle triggering this concern is the now-familiar license accompanying technologically advanced delivery of intellectual property in the university library environment.

So here are the "things" that converged for me at this point. I have been heavily immersed in researching and preparing the current CIP online course "Deciding to Digitize: Legal, Ethical, and Copyright Considerations". Part of that addresses digitization as a preservation method and that concept led me to consider who should be responsible for digital preservation of scholarly materials and how it should be done. Libraries have traditionally assumed preservation responsibilities but they cannot archive materials they are only "renting." So I began to think about library e-resource licenses that:
a) constantly make it clear that rights to the intellectual property being licensed remain with the vendor (licensor) but
b) do not always contain an acceptable solution for access to the material subscribed to if the subscription must be cancelled.
Having used a significant portion of my working hours reviewing library licenses for e-resources, being away from it for several years, and now resuming license review again, it is clear to me, (trenches point-of-view), that for the most part, the licenses offered reflect very little progress. I find myself again, in 2011, looking at licenses with terms that clearly indicate a) little understanding of why the customer (the licensee, the library, the university, whatever) would be interested in a particular product, and b) reveal a significantly flawed understanding concerning what a library can and cannot do, even if their state law allowed it.

The final pieces of the convergence came with my Christmas present (a Kindle) and my esteemed first guest chatter in the above-mentioned course, Peter Hirtle, Senior Policy Advisor at Cornell University. By happy coincidence, I came across his post last week (2/6/11) on the LibraryLaw.com blog entitled "Kindles and Libraries" that referenced his interesting post last summer, "May a library lend e-book readers". Both of these posts are well worth a read, especially his analysis of iPad licenses that prohibit lending its' software, arguably exactly what libraries that lend iPads do. The Kindle license is also problematic, since it allows use of the content purchased from Amazon only for personal, non-commercial use. Again, a predicament for libraries that lend Kindles. (Not a personal use.) [Aside: What would a "personal use" look like for a library?] Hirtle concludes his first post with a recommendation that libraries work with vendors to create a "library-friendly license." OK. Good. We like "library-friendly licenses."

THE POINT

There continues to be a critical need to get better NOW at writing the "library friendly license." In my opinion, we are not there yet. If it has been written, it isn't being used. Do not make the mistake of thinking this is old news. True, we have multiple library association principles outlining acceptable licensing practices; we have courses and webinars; we have online guidelines and resources all over the place. Been there, done that. Well, it helped and there are many more knowledgeable librarians as a result. But, it is by far, not done, not even close. How long has there been licensing for e-journals and e-databases? And yet, libraries are still slogging through, license by license, the same terms, over and over, that are either legally prohibited or reflect an unrealistic view of a university library environment.

Here are several examples of unacceptable licensor language that I have seen in the last month in e-resource licenses:

• Terms making the library responsible for the behavior of tens of thousands of people who are authorized users:
-Authorized Users and Walk-In Users are bound by the terms of this Agreement as Licensee. Licensee shall use its best efforts to ensure that Authorized Users abide by the terms of this Agreement.
-Licensee shall make best efforts to prevent the infringement of any intellectual property or other rights of Licensor in the Content by its Authorized Users.
-Licensee shall use its best efforts to ensure that Walk-In Users comply with the obligations described in this provision.
-[Licensee.] to use its commercially reasonable efforts to ensure that Authorized Users comply with the terms and conditions of this Agreement, the terms of access and use for online services as set forth in the terms and conditions for online services available at Licensor's website(s), and any and all user guidelines or restrictions provided by Licensor, from time to time;
-It is the customer's obligation to ensure that its Authorized Users are compliant with the terms and conditions of the Agreement.

• A new term - wow!
-Authorized Users are advised that consultation with legal counsel regarding copyright laws prior to the use of certain material contained in the Product(s) may be appropriate.

• Again, the indemnification clause in a library license- what was the saying? "Read my lips?"
-Licensee agrees to indemnify, defend, and hold Licensor, its representatives, etc., etc, harmless from and against any and all claims, demands, obligations, costs, losses and liabilities arising out of use of the Content by any third party, including but not limited to any claim that the use by Licensee, or any such Participating Institution, Authorized User or Walk-In User of the Content violates the copyright, trademark or other intellectual property rights or rights of privacy or publicity of any such third party (but not related to the Content itself), ....(4) arising out of any alleged or actual violation by Licensee, any Participating Institution, Authorized User or Walk-In User of any applicable statute, regulations, rules, or laws;
Look at the breadth of that last one - any alleged violation of any law by a walk-in and the library should agree to be financially responsible?

• The "we can change the contract any time we want so you actually have no idea what you are agreeing to but sign this anyway- in fact, we can even change the price" clause.
-The terms and conditions of this Agreement may be changed from time to time, upon written or electronic notice to Purchaser.
-Information Providers may modify or assign additional terms and conditions, as made available to Purchaser by Licensor, from time to time, which affect the Authorized Users' use of the Product(s), including without limitation, changes in rates, use restrictions, guidelines or termination of access to the Product(s). Those terms and conditions will prevail and control use of the relevant content. Purchaser hereby grants to Licensor and/or Information Providers the right to enforce or assert on their own behalf the provisions of this Agreement to the extent they pertain to the content contained in the Product(s).

• And finally, although I could go on, the mother of all non-disclosure clauses
-Neither party shall disclose the terms and conditions or the subject matter of this Agreement (including without limitation, the content of the Attachments, fees, and any usage data compiled and supplied under Section X, usage statistics or any other information about the other party's business) to any third party without the prior written consent of the other. It is understood by both parties that Licensor is presenting this Agreement and its terms to Licensee under confidential conditions and that the terms of this Agreement constitute trade secrets and highly sensitive and confidential information. If Licensee receives a request for the disclosure of any part of this Agreement pursuant to any applicable state or federal laws, Licensee shall immediately notify Licensor of any such request, and shall not, under any circumstances, disclose any information pursuant to any such request whatsoever without Licensor's prior written consent. (emphasis added)

In other words, we (licensor) are above the law and you, the library licensee, must not obey a legal request (like a subpoena) without our prior written agreement.

These terms are not getting any better; these are licenses for scholarly output, not the plans for a black ops mission.

What's going on here? Are we educating the wrong people? We are still faced off, like the gunslingers in the movie, eyeing each other with mistrust when we are all supposedly striving for the same outcome. If we can't even get e-resource licensing right after all these years, how can we even begin to craft library-friendly e-book licenses? Not to mention all the other e-technology already available and that yet to come?

We need to try again. Think of the savings in man-hours alone, for each party, if there was a standard reality-based library license. Libraries could probably afford to buy more products on those savings alone. If you scoff at the notion that we are throwing significant and dwindling resources away rehabilitating the same flawed licenses over and over, back and forth, email by email, ask the opinion of your nearest University e-resource librarian.

There simply has to be a better way.

Stayed tuned for the next post: Options for getting to reality-based library e-resource licenses.

Several months ago, shortly after starting the IP Scholar term as well as teaching my first Digitization Course online, I posted a blog on licensing of electronic resources in the university library setting. The point of the blog was simple:
• Most university electronic resources in the library are governed by a license agreement that originates with the resource vendor.
• These licensing agreements are legally binding contracts.
• Almost every license agreement requires modification of the terms before it can be accepted by the library/university.
• Negotiating different licensing language for each license is resource intensive, in terms of time and the involvement of multiple layers of institutional authority on both sides.
• Despite the repeated unacceptability or impossibility of many of the clauses, very little evolution or term improvement seems to occur; that is, each new negotiation starts back at square one, over and over.

License negotiation, in this setting, appears to me to be very similar, if not identical, to the activity or practice as it existed when I began my association with it, over a decade ago. Incremental improvements have occurred, such as more systematic methods of tracking the progress of a specific license; development of licensing guidelines particular to an individual organization; increased opportunities for library licensing training; convincing the library that it actually had to do what it agreed to do, such as informing users of terms; encouraging communication of licensing terms to other library departments with a need to know like ILL; convincing my (1st) library that Friends of the Library members were not authorized users, and so forth. Additionally, more national efforts to create model library licenses (NERL, etc.) and the promotion of a memorandum of shared understanding concerning use of e-resources (SERU - but this is not a license) also have been created.

My first blog entry came to the attention of a much wider-read, established listserv, liblicense, where it generated a lively and informative discussion. Apparently, many were also experiencing frustration with the constant and time-consuming license negotiation process while others considered the issue sufficiently addressed as a result of the imaginative and valuable efforts of the SERU group as well as those pockets of consortia or associated libraries who have had success in convincing vendors to use their own model library licenses. All of these efforts are to be applauded. I'm sure I have left others out unintentionally and I am in no way criticizing such efforts. Their successes, however, are not universal, by any measure and for many of us the problem remains.

By far the most illuminating comments came from those who argued that no single model license would ever be successful because there were simply too many variables involved: types of vendors, types of resources, types of buyers (public or private institutions, for example), size and resources available to different buyers, and different governing laws and policies unique to individual states.

It is this viewpoint that resonates the most to me - it is so strikingly obvious. However appealing it is to hope that sellers and buyers of electronic resources should be able to accept the principles set forth in a document like SERU and confine their negotiations to amount and price, I fear the licensing model, as a way of doing business and of shifting liability, has become firmly imbedded. Speculating on how or why this model was meekly (?) accepted as appropriate for acquiring access to the electronic version of non-licensed print materials is probably a waste of time. One can't help but note, nevertheless, that subscribing to a print journal never involved requiring the subscriber to monitor the lawfulness of the activities of those who read it or to indemnify the journal should said user violate intellectual property laws. Why did libraries ever go along with this business model in the first place?

As hopeful an option as SERU is, it has not yet achieved significant success and acceptance. An interesting discussion of this and other efforts can be found in a 2010 article "Informing Licensing Stakeholders: Toward a More Effective Negotiation" in The Serials Librarian, Vol. 58: 1, 127-140, a panel discussion including a representative from the SERU Working Group. (see below for cite)

Those of you, on the ground, still spending your days negotiating and rehabilitating license after license agreement, do not need an article or me to tell you that the situation, overall, is pretty much the same as it has been, pockets of success here and there notwithstanding - NERL and OCUL, for example. Even those, though, start with the premise of a single license model, one-size-fits-all. The liblicense responses have convinced me that such a model is not the answer. We need to empty our full cups ("you cannot fill a cup that is already full") and open our collective minds to that notion.

What do you do when one size or one choice does not meet the needs of an industry? One obvious answer is to offer a selection of licenses addressing the primary subsets of needs. But will that help or just offer more starting points or entry into the back and forth of negotiations? If so, that may simply create more work.

Perhaps, to accommodate the many variables - type of product, type of vendor, type of institution or customer, individual jurisdictional mandates - the license or agreement needs to be parsed or dismantled into its component parts. Not such a hard thing for an instrument like one of these licenses. It's already been done repeatedly on sites that analyze the pros and cons of various sections and offer acceptable and unacceptable language. The instrument itself is already divided organizationally into sections. No doubt your own company or institution - licensor or licensee - has already developed its own internal licensing guidelines.

Suppose then, that stakeholder representatives could develop mutually acceptable, approved language for each category of the license, and, where appropriate, several approved language options for those particular categories where one size does not fit all and there are varying needs of product, vendor, buyer, etc. In short, build-a-license, customizable to meet the needs of different situations. With pre-approved clauses, the need to have each proposed language change during a negotiation taken back to the lawyers or the individual with approval authority is eliminated. Think of the potential for efficiency, consistency, customizability and a streamlined process.

This is an approach with potential - enough to warrant further exploration and we're working on it. All comments, suggestions, interested participants are welcome. Think about it. Let us hear from you -

Peggy

Cite: Chamberlain, Clint , Damijonaitis, Vida , Lamoureux, Selden Durgom , Rubinstein, Brett , Sibert, Lisa and Westfall, Micheline(2010) 'Informing Licensing Stakeholders: Toward a More Effective Negotiation', The Serials Librarian, 58: 1, 127 -- 140; url: http://dx.doi.org/10.1080/03615261003622940

In a prior post, I directed your attention to the Georgia State lawsuit and its implications for higher education, particularly digitally delivered resources. As has been noted elsewhere, a decision on the single remaining claim - indirect infringement, may come as early as the next two months.

Meanwhile, other rather chilling efforts have begun to appear in the form of unusual "statements", "guidelines", contract language in licenses, and the emergence of additional methods to pay for nearly any use of any amount of copyrighted materials, all generally targeted at activities occurring within the higher education setting. Of course, the primary driver is money - who has it and who wants it. Hopefully, somewhere in the mix is the goal of providing accessing to the best quality materials for our current mature level researchers as well as those just entering academe who will need every ounce of scholarly materials and thinking/processing skills to enter the world we've left them, survive, and maybe even "fix" it, huh?

Money, more than any other single factor, puts enormous pressure on already stressed and dysfunctional systems. Worry over money, jobs, staying in business, watching your business model decay and fade with advances in technology seem to me to have polarized buyers and sellers, creators and users of the same valuable intellectual property output almost past the point of reasonable and civil discourse.

Why do I say this? Because I think there has been a recent uptick in the stringency of publisher promoted fair use guidelines, ILL guidelines, and, now, the offering to license "reuse rights" for entire books that are no longer "available". (Most of that last service leaves me with a great many questions.) Words like "legitimate copyright owners" are tossed about to inject some sort of moral flavor into what should be an intellectual and mutually beneficial conversation - because I can easily take issue with exactly who is the "legitimate copyright holder" at the drop of a pin.
So, the publishers, fearing extinction or at least marginalization, are spewing out strange guidelines and suing their customers.

The "customers", who are also the suppliers for the publishers, are also reaching the "I've had enough" phase. Why are prices constantly going up? Appropriations money for all universities is being slashed or taken back, our salaries remain constant despite increase in our costs of living, our positions are being taken - and this has been going on for years and years. Do you think these customers have an ounce of sympathy for publishers who want more money each year? THE MONEY IS NOT THERE. It is not a matter of choosing between an assistant football coach and buying books. Now even conferences of those closest to the money and resources are also becoming sources of polarization. The librarians. They are hit from all directions. The librarians are tasked to try to buy their users a silk purse with a sow's ear.

But it's not a "war" between librarians and publishers. If it is a war at all, it is the publisher's struggle with technology and current copyright law. Both of which threaten the publishing industry. It's a great deal easier to challenge librarians although not the faculty they represent - because the faculty are the source of the content for the publications. Get on the wrong side of faculty, and there goes the golden goose.

International Association of Scientific, Technical, and Medical Publishers: Statement on Document Delivery, 31 May 2011.

If you haven't read this statement, you should do so. It is, in fact, the provocation for this blog. But rather than just critique it and, therefore, appear as yet another librarian attacking a publisher, I wanted you to question the current environment for scholarly publishing and why such strange backward retrenchments are becoming more frequent and more severe.

This "statement" concerns another well-established key library activity known as Inter-Library Loan (ILL). ILL, for any non-librarians in the crowd, is the practice, specifically authorized in Sections 108(d) and (e), that recognizes that all libraries cannot possibly have, in their own collection, EVERYTHING ever published. So, the law allows a library that does not have something a user wants or needs to locate another library that does have it. The first library is specifically authorized by copyright law to ask the second library for the desired item, in whole or in part, (if it is an article or small contribution) or to borrow the item itself. That is the basic premise of ILL. It makes a great deal of sense and has become increasingly relied upon as the buying power of libraries is inexorably being diverted to satisfy the constantly increasing licensing fees coming from this very group - STM (science, technology, and medical) publishers. ILL has been the primary method of bridging the gap in materials no longer available as a direct result of these constant price increases in licensing.

What does this statement say? Well, it pretty much expresses the opinion that all ILL requests should be paid for and that since the materials filling the ILL request cross international boundaries, the whole operation is beyond the ken of universities and libraries - therefore, the control and payment for ILL requests should rest with the "legitimate rights-holder". [When you hear the phrase "legitimate" rights-holder somehow it makes you believe the rights holder earned that right, either by creating the material or purchasing the rights, neither of which is the case for most STM publishing; rather the publisher is simply given the right, without being the creator or having paid for it]

In fact, these journal articles cross borders frequently during their life span - should the publisher be paying every time the article crosses a border to a peer reviewer or the original author? These same STM publishers don't seem worried about international laws or potential differences when they license materials to libraries; no mention of international law is ever found in their own licenses. Why now? The fact is U.S. copyright law governs U.S. libraries - period.

Furthermore, ILL is a particularly poor choice of library practices to target.
• First, it rests solidly on a specific copyright law provision.
• Secondly, the 1976 Copyright Act established a National Commission on New Technological Uses of Copyrighted Works (CONTU) to deal with the inevitable questions that would arise with continued technological evolution.

The CONTU Guidelines issued explain and define the scope of ILL and have been almost religiously followed by libraries ever since. They have come to be known as the "Rule of Five" and basically allow:
• There is no limit, and, therefore, no permission fees, required for articles published more than five years before the ILL request.
• If the requested article comes from a periodical published within the past five years, the requesting library may request and obtain five articles per annum, without permission fees. Once the library reaches the need for a sixth article from the same periodical within the year, practice has been to either subscribe to the journal (if, for example, the requests are coming from multiple individuals demonstrating a wide need for the periodical) or pay a permission fee. (perhaps if all the requests are coming from a single individual). The payment and tracking onus is on the requesting library, not the responding library.

To my knowledge, this practice has been stable and noncontroversial since 1979. Why would publishers now challenge this practice, specifically authorized by law? Especially since, if anything, the challenge should come from the libraries concerning the rather low number of five articles? There are undoubtedly hundreds more journals for libraries to spend their limited budgets subscribing to than there was in the 1970's, when the CONTU Guidelines were first generated. That fact alone should support a call to raise the number of articles permitted far above the number of five. Instead, we have a statement that would essentially have us ignore Section 108 that specifically allows ILL. What in the world is going on? Should libraries simply stop using their ILL right? That's what would have to happen should we all ignore the law and pay for every borrowed article.

If there is to be civil and responsible discourse between publishers and the universities that keep them in business, we all need to curb the rhetoric, stay reality-based, and refrain from statements that stray so far from the law.

I welcome your comments - talk to me -
Peggy

Does this phrase sound familiar? It is one of the well-known Toddlers' Rules of Possession, a clever and, unfortunately, all too true, description of a toddler's sense of ownership over anything they see, like, want, need, or grab, whether it belongs to them or not. Other amusing rules in the list include:
If I can take it from you, it's mine
If it's mine, it can never appear to be yours in any way
If I (think) need it, it's mine
If I want it, it's mine
If I say it's mine, it's mine
If I think I can play with it better than you can, it's mine
If I play with it long enough, it's mine
And more, but ending with:
If it's broken, it's yours.

Anyone who has spent time working in the current scholarly communication system, working with university faculty authors/researchers on their journal publication agreements, working with university copyright ownership policy development, and/or having spent years involved with reviewing academic library electronic resources, already know how the Toddlers' Rules of Possession could end up in this blog.

Having recently recovered (nearly) from the unpleasant crush of the end of fiscal year library license negotiation review, I realized that I had faced repeatedly reading what uses the "LAWFUL COPYRIGHT HOLDERS" did or did not allow of their materials. Additionally, the indigent tone expressed frequently by the "LAWFUL COPYRIGHT HOLDERS" in Plaintiffs' pleadings in the Georgia State lawsuit, in particular, set me thinking about the wisdom of taking that tone and tenor, indeed, suing not only a member of your major customer base, but also the very creators of the only thing you have to sell: content, research results, ideas, data. All collected, discovered, invented, theorized, and written, not by the "lawful copyright holders". The "LAWFUL COPYRIGHT HOLDERS" could not generate the type of content their business relies upon if their lives depended on it. If the researchers, the scientists, the scholars, the authors, the artists, the poets, the suppliers and interpreters of content suddenly stopped submitting their works to the "LAWFUL COPYRIGHT HOLDERS", those "LAWFUL COPYRIGHT HOLDERS" would be joining many of their fellow Americans out on the street in no time.

The true creators are the researchers, the faculty, the scholars. They do not deserve to be called thieves and pirates by the very people who depend upon them for a living.

In fairness, let's look at how the creators are able to do what they do. The authors of journal articles do not make their discoveries, collect data, conduct experiments or develop and test theories in a vacuum. Research and innovative thinking is primarily conducted at some facility - an educational institution, a corporation, an institute - that supports the creator both monetarily and through the provision of the special type of milieu or environment where collaboration of smart people, provocative discussions, and the general rich soup of ideas and interaction stimulate creativity and discovery.

Someone or something is providing the financial support that enables creators to create. Someone or something is paying them salaries, giving them benefits, providing the physical spaces and equipment in addition to funding that may come from external sources and grants.

The result is that almost everything that makes that published article even exist is supplied and paid for by entities other than the publisher. Even essential peer-review is provided by other scholars, often free of charge.

What does the publisher contribute? There are any number of articles describing what the publisher does to the article - reviews it, edits it, gives suggestions for improvement and polishes it up for publication. Before e-journal internet capacity, the publisher played an even greater role in distribution.

And, because the scholars own promotion and tenure system developed to include consideration of articles published in prominent journals, journal acceptance became vital to a faculty member's promotion and tenure process.

Now, I know that you all know this system backwards and forwards. I'm hoping, though, to have you think about it in a new light. As follows: Even if you credit publishers fully with all the value they claim to add to the journal article after it comes to them - assuming all of the descriptions are completely true with no exaggerations - is their contribution, relative to the other investments in this work so all powerful that it warrants giving the publisher the entire intellectual property rights to it?

That is, the work is the result of:

• The imagination, intelligence, education of the scholar(s)/researcher(s) plus who knows how many hours, months or years of disciplined research, experimentation, data gathering, studies, surveys, field work, etc., plus their analysis, questions, theories, conclusions, observations condensed by them into a written article or monograph;
AND
• The overhead, salaried support, and investment of their employers who provide the equipment, lab, tools, support personnel, synergistic environment, not to mention salary, benefits, a job...
AND
• Perhaps even the financial investment of a grant funding entity, private or public, in the thousands or hundreds of thousands, even millions of dollars;
AND
• The time, experience, and expertise of the colleagues who peer review the work;
AND THEN FINALLY
• A company that is handed the results of the above contributions, edits it, formats it, manages it, packages it, and markets it...

Remembering also that today the internet is the greatest distribution system in history AND that preservation of the work has traditionally been the role of libraries -

Which of these contributions, assuming only one, is so essential, so important, so irreplaceable and unique that the entity responsible for that contribution ought to, deserves to own the intellectual property rights to the work? Honestly, think about it. All contributions are not equal. Which one should be able to profit from the work and completely control it? Tough, isn't it? Let's flip it then - maybe that's easier. Which contribution is, relatively speaking, the "least" in terms of time, talent, irreplaceability, imagination, and investment? Is that easier? It is for me.

I'm not saying that the publisher's activities don't improve the quality of the writing or presentation. But it doesn't significantly affect (or perhaps affect at all) the content and quality of the science or analysis. Let's say it does - somewhat. Does it still get one to the conclusion that the last contributor in the chain is entitled - for free - to the entire pie of intellectual property rights? And continuing, having somehow along history's path, convinced the other contributors that they should have all rights to the work, is it appropriate for that least contributor to effectively erase from memory all prior contributions to the origin and development of the work, and change from publisher to "LAWFUL COPYRIGHT HOLDER".

Then, as "LAWFUL COPYRIGHT HOLDER" (through the charity or inattention of the true copyright holders), to turn around and fence in and restrict access to the work from the very community it was intended to reach. To use their status of "LAWFUL COPYRIGHT HOLDER" to price their supplier, a.k.a., customer, right out of the market. Finally, to turn to the courts of law and courts of public opinion for sympathy and help in running to ground their supplier/customer/now "pirate" for attempting to make educational uses of "their" work.

This has been the system of scholarly communication for decades. It's architecture and basic characteristics as I've described developed mutually. The point we all know is that the system is dysfunctional and the relentless price increases by major publishers have received most of the credit or blame for the system's breakdown. I suggest here that common sense and fundamental fairness led to nowhere but the conclusion that the allocation of IP rights was ill conceived from the start. Failure to recognize their windfall (the transfer of copyright) and to exercise restraint in dealing with their benefactors with respect to pricing and licensing terms has arguably not only triggered our current situation but resulted in such polarized positions, opinions, and behavior that we seem to have slipped past the point of civil discourse and now face each other across the courtroom. It may be too little too late, but failure of the recipients of free, high quality intellectual property and its rights to tread with more care when dealing with their geese with golden eggs, as continually evidenced by current licensing terms, prices, and the almost righteous use of the phrase "LAWFUL COPYRIGHT HOLDERS", can only lead to the geese keeping their eggs.

By Peggy E. Hoon, J.D.
CIP IP Scholar
Scholarly Communications Librarian
University of North Carolina at Charlotte

What's the Deal with Associational Standing?

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

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

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

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

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

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

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

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

To quote:

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



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

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

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

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

Peggy Hoon
IP Scholar

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