Is the overly-broad, overreaching and unilateral decision-making (sometimes referred to as censorship) language of these bills really the limit of the authorship talents of the U.S. Congress or is it intentional? These are pretty much the choices:

1.There is an inability to craft a finely tuned piece of legislation to achieve arguably laudable goals or
2. The language was intended as written, but evidenced a lack of vision to foresee the enormous potential for abuse and crippling of the most entrepreneurial, equalizing, educational, productive information and communication network ever conceived to date.

Very discouraging. This, despite best efforts to educate Congress as to the extent and nature of the critical damage enabled by these bills. As usual, money talks. Loudly. "According to Congressional money watchdog Maplight.org, industries supporting SOPA have funneled more than $92 million to members of Congress since July 2009 -- or 13 times as much as those who oppose it." [source: Info World: "This Internet blackout has been brought to you by the U.S. Congress"] Since Congress appeared deaf or disbelieving and was proceeding with the legislation, major Internet sites were left with little choice but to demonstrate what could happen if this legislation passed and so, voluntarily blacked out their sites yesterday. Hardly a "stunt to punish their users or turn them into their corporate pawns", as characterized in a statement by the MPAA Chairman, Chris Dodd (winner of "the pot calling the kettle black" award for characterizing the blackout sites as "intentionally skewing the facts to incite their users" and engaging in "hyperbole and PR stunts" after their legendary leader's very public statements in the past that "the vcr is to the American film producer as the Boston Strangler is to the woman alone", [sourced Testimony to the U.S. House of Representatives (1982), Jack Valenti]), but rather a hope that a picture is indeed worth a thousand words.

Today (1/20/2012) it has been announced that the rapidly approaching January 24th Senate vote on PIPA has been delayed. It would appear, fortunately, that votes (sometimes referred to as the will of the people...) count as well. As reported by PC World in "Were SOPA/PIPA Protests a Success? The Results Are In" :

Four and a half million people,on one site on one day, signed a petition opposing the bills, 162 million people saw the protest on Wikipedia, and 8 million people used Wikipedia's search tool to look up the contact information for their representatives. Furthermore, Tumblr "censored" its users' content streams, and reported that its users averaged 3.6 calls per second to Congress through the company's Web site--nearly 90,000 total.

That's good news. Here's hoping that Congress can come up with a piece of legislation that puts out the forest fires without eliminating the entire forest.

Peggy E. Hoon, J.D.
2011-2013 CIP Intellectual Property Scholar

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Comments are welcome

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

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

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

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

Terms and Conditions

AMBROSE VIDEO PUBLISHING

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

AMBROSE VIDEO PULISHING

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

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

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

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

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

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

Become a new individual or institutional member of the Center for Intellectual Property or renew your membership by August 8, 2011, and you can hear multiple perspectives on the current debate about institutional use of streaming media for FREE.

Streaming Media Case Series: A Discussion of the AIME v. UCLA Case in Three Acts

	Act I, August 10, 2011, 1-2 PM ET, with Brandon Butler, J.D., Director of Public Policy Initiatives, Association of Research Libraries. Brandon is a principle investigator for the Andrew W. Mellon Foundation-funded project to formulate a code of best practices in fair use for college and research libraries.
	Act II, August 17, 2011, 1-2 PM ET, with Christopher A. Mohr, J.D., Meyer, Klipper & Mohr PLLC. Chris Mohr has appeared before legislative, judicial, and administrative bodies on matters of intellectual property and constitutional law and has been involved in several Supreme Court cases.
	Act III, August 24, 2011, 1-2 PM ET, with Peggy Hoon, J.D., Virtual Scholar in Residence, Center for Intellectual Property. Peggy Hoon is the American Library Association's 2008 recipient of the L. Ray Patterson Award in Support of Users' Rights. In addition to working with the CIP, Ms. Hoon is the Scholarly Communications Librarian for the University of North Carolina at Charlotte (UNCC).

This program is perfect for institutions! Want to share this program with your colleagues at your institution/organization? Then Institutional Membership is designed for you! Become an Institutional Member today and all the employees at your institution/organization will be able to create their own community member profiles and participate in this program as well as the monthly Community Conversations all at no extra charge!

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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

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

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

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

I'm not making this stuff up - really.

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

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

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

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

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

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

•IS THE PROPOSED INJUNCTION EVEN LEGAL?

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

•IS IT A SMART MOVE?

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

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

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

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

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

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

THANKS FOR THE HELP!

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

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

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

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

This injunction is your fuel - now LIGHT that fire!

Peggy Hoon
CIP Intellectual Property Scholar

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

Transformative Uses As Fair Uses

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Peggy Hoon

I've said it before, I'm saying it again once and for all. Institutions of higher education in the United States can no longer afford to squander scarce resources in the current endless cycle of rehabilitating the same unacceptable license language that accompanies online scholarly journals, databases, and other electronic resources. Over and over, day after day, institution after institution, time and money are spent just trying to keep the use rights and other rights that we already possess under the law from being constricted. To access material that our university professors and researchers have generated. Meanwhile, classes are cancelled, people are laid off, entire programs are eliminated, and our system of higher education continues its slide to mediocrity.

I bring this to your attention, one last time, because this clearly is a problem whose demand for a uniformly successful solution has come. Just this past week, a strong cry for license reform has spoken. The Charleston Advisor's latest edition, April 2011, rings with the clear tones of Stanley Wilder, University Librarian at UNC-Charlotte, in The Erosion of Fair Use Protections for Digital Scholarship, as he challenges us to stop playing defense and rethink the vendor's license as the point of departure. He calls for reframing "the existing debates about licenses...so as to put protection of fair use principles front and center." Furthermore, if his examples of egregious licensing language, while familiar to library license negotiators, doesn't bestir, if not actually offend, academia from administrators to faculty to staff to students, I suspect nothing will.

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 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.

http://www-apps.umuc.edu/blog/collectanea/.

Please update all your bookmarks, blogrolls, and aggregators accordingly.
Thank you!

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!

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

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

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

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

(ii) Documentary filmmaking;

(iii) Noncommercial videos

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[More to come]

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

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

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

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