Through the copyright looking glass October 29, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Copyright in the Classroom , add a commentIt is getting both monotonous and annoying to write repeatedly about badly reasoned court decisions in the area of copyright. Unfortunately, when they directly impact higher education, we cannot ignore these pernicious errors by our federal courts.
Earlier this month, a district court in Michigan handed down such a decision in yet another “course pack” case in that state. There was a twist this time, however, which the court chose to ignore. In this case, brought by Blackwell, Elsevier, Oxford, Sage and John Wiley publishers, the copy shop received photocopied course packs from professors, than handed them to individual students who made copies for their own use. Amazingly, the court found that this practice constituted direct infringement by the copy shop of the copyright holder’s exclusive rights of reproduction and distribution.
The problem, of course, is that no employee of the copy shop took any action that actually implicated either of these rights. The shop, owned by Excel Research Group, actually made no copies of any of the material over which the suit was brought. Judge Avern Cohn contemptuously dismisses this point, asserting that “the fact that the students push a button on a copier in the manner described is of no significance.” But such facts are exactly what are significant in legal reasoning, and the judge offers no principled reason for ignoring this fact other than his apparent desire to see the plaintiffs win their case.
Even more troubling was the treatment of the distribution right, which the court said was infringed by the shop handing out the course packs it was given. For this to be true, those copies would have to be unlawfully made, so that the doctrine of first sale did not apply to them. But Judge Cohn made no such finding; he simply noted that the packs were brought to the shop by professors who assigned the readings to their students. Again, the judge seems disinterested in either the details of the law or the facts before him; he simply appears anxious to arrive at the conclusion he thinks is desirable.
This startlingly bad reasoning serves a purpose for both the court and the publishers, of course. It is the only way, albeit one that requires ignoring both law and facts, to hold the copy shop liable without also saying that the copies made by faculty members and students were themselves infringing. The shop’s liability, if any, is clearly contributory to direct infringement by students and their instructors. But the court did not want to hold this way, and I am sure the publishers did not ask them to. To find direct infringement would be so obviously to attack the basic necessities of education, and would so clearly contravene the intention of Congress when they included “multiple copies for classroom use” in the list of examples of fair use, that it was too politically dangerous. And publishers would fear, no doubt, a decision that would suggest to their customers that their products truly are unusable. So rather than find direct infringement by teachers and students so as to hold the copy shop indirectly liable, the court rendered an incoherent decision in which Excel is held liable for directly infringing copyright without making a single copy.
There is some excellent analysis of this decision by Peter Hirtle here and by Shourin Sen here.
The result of this case is similar to what we have been decrying for some time now — a creeping expansion of the exclusive rights in copyright way beyond the boundaries Congress set for them. Here that expansion has been abeted by a judge who apparently sees his role as a kind of knight-errant, righting every wrong he perceives, regardless of the legal foundation.
Choosing between reform and revolution August 13, 2009
Posted by Kevin Smith in : Copyright in the Classroom, Fair Use, Scholarly Publishing , 5commentsA recent article by Steven Shavell called “Should Copyright of Academic Work be Abolished” caught my notice, as I am sure it did for many others, because of the radical question posed in its title, but it ultimately focused my attention on a different article altogether. I hope to have more to say about Professor Shavell’s work in a later post, but here I want to record my initial reaction, which was that copyright in academic works need not be abolished but should be heavily reformed. And the best reform I can think of (short of legislative revision) is the re-evaluation of fair use, based on more attention to the second fair use factor, that is suggested in Robert Kasunic’s article “Is That All There Is? Reflections on the Nature of the Second Fair Use Factor.”
The second fair use factor – the nature of the copyrighted work – is usually treated very mechanically by courts, and sometimes is ignored altogether. When it is discussed, it is in a few sentences addressed to only two issues – whether the work is published or not and whether it is creative or factual. Kasunic, who is Principal Legal Advisor to the Copyright Office, suggests that this treatment seriously undervalues the importance of this part of the fair use analysis. He argues convincingly that the second factor, when examined carefully, offers a wealth of information that could improve consideration of all of the fair use factors. Indeed, one of his major points is that the fair use factors are a guide for fact-gathering, not a mechanical “tally sheet” or scorecard.
If courts pursued the probing questions about the nature of an original work that Kasunic suggests when considering a claim of fair use, the result for academic work would be, I think, truly revolutionary, because those courts would learn how much more leeway should be accorded to academic work than would be appropriate for other types of work. Kasunic argues that part of the scrutiny that should be applied to the original work would ask what the particular incentive structure for that type of work is. When the purpose of copyright law is understood properly, as a mechanism to give incentives for creation, the expectations of the authors and creators are really the only guide for what uses should be compensated and what uses need not be. Thus it is important to ask what the normal incentives for creators of that particular type of work are and what markets supply those incentives. Unexpected markets, or markets that benefit only secondary owners of copyrights rather than authors, are not relevant in deciding if a particular use is fair or not.
When academic work is considered, it is clear that the scope of fair use would be very broad under this more sensitive and sensible analysis. Academics are usually not paid for their most frequent works of authorship, journal articles, and compensation for books authors is meager. Thus the protection of various markets s not necessary for this type of work in order to effectuate the purpose of copyright; incentives for authors clearly come from some place else. Also, it is usually a secondary copyright holder who is trying to protect those markets, which further reduces their value as an incentive for creation. Finally, secondary markets, such as permission fees for electronic reserves and course packs are usually wholly unexpected, and therefore have no incentive value, from the point of view of academic authors. In fact, I once had a faculty author ask me if a check from the Copyright Clearance Center was some kind of scam, so unexpected was the tiny windfall he was being offered.
As Kasunic points out, different types of authorship receive different rights under our copyright law; it is logical, therefore, to also think about fair use differently depending on the specific facts that surround the creation of a particular category of work. Academic works would, in such a fact-specific analysis, be subject to much more fair use than a commercial novel, film or song. Indeed, Kasunic selects as the example with which he closes his article the case of academic authors and fair uses claims for course packs and electronic reserves. Although he does not spell out a conclusion, it is clear from his discussion that the facts uncovered by the searching analysis he recommends would greatly favor a liberal application of fair use for that type of work.
Since an actual case such as Kasunic describes is currently being litigated – the lawsuit against Georgia State University alleging copyright infringement in the distribution of electronic course readings – it is hard to resist reading his article with that case in mind. Kasunic presents, to my mind, a compelling argument that the court should look very careful at why the works in question were created in the first place and focus a fair use finding on the incentives for creation and not extraneous claims for windfall profits made by secondary copyright holders. This would be a sensible application of a factor that has largely been treated as unimportant; it would take seriously the intent of Congress and their instructions to courts when they codified section 107. And it would dramatically increase the likelihood that many of the uses in question at Georgia State (at least those uses that involve academic writings) would be found to be fair use.
That pesky checklist July 19, 2009
Posted by Kevin Smith in : Copyright in the Classroom, Fair Use , 5commentsThe recent flurry of activity in the copyright infringement lawsuit brought by publishers against Georgia State University has focused attention – mine, at least – on the “Fair Use Checklist” that has been adopted for use in quite a number of college and university copyright policies. As part of the mini-controversy over the naming of Dr. Kenneth Crews from Columbia University as an expert witness for the trial, the plaintiffs have objected that Dr. Crews, as a co-author of the checklist that is part of GSU’s new policy (see a previous post on this topic here) cannot be an impartial witness. In one sense this seems an odd objection, since experts are hired by each side in a lawsuit precisely because thy favor the position taken by the party that hires them, but it also offers a chance to reflect on the use and misuse of the fair use checklist and to begin to explain publishers’ ambivalent attitude toward it.
There are two obvious problems with the checklist, it seems to me. First, it can encourages a falsely mechanical view of fair use, where a “score” of seven pro versus six con, for example, means something is definitely fair use, while a one-digit reversal means it is not. That, of course, is not how fair use really works, and no score card can actually predict the results of a judicial evaluation of the fair use factors. Second, the checklist would be pretty easy to manipulate so that it tends toward the result someone is seeking. There has been some discussion, for example, about whether or not there needs to be an equal number of check boxes on each side (favoring fair use v. disfavoring fair use) in order for the checklist to itself be fair. Although this seems plausible, it is important to remember that courts have not necessarily articulated an equal number of circumstances to be considered on each side of the argument, and the checklist seeks to guide its user through the considerations that are actually in play, not some artificial list created without regard to case law for the sake of balance.
Against these two problems, both of which can be quite real, there are also a couple of sound reasons for using the checklist. First, the very mechanical nature that makes it an imperfect tool also makes it one that can be used quickly and without an entire course in copyright law by staff and faculty. These are the major groups that need to make fair use decisions day in and day out; the checklist is a way to at least be sure that they think about all of the factors that are relevant. There are many people on college campuses that seem to believe that any educational use is a fair use, and the checklist helps counter that simplistic belief and remind all of its users of the full-range of necessary considerations. Second, the checklist provides documentary evidence that a full fair use analysis was undertaken. Since part of the “remedies” section of the copyright act gives college and university employees partial protection from damages for infringement when they make a good faith fair use decision, even if they turn out to be wrong, evidence of detailed analysis helps protect the institution from potential liability.
These two arguments in support of using a checklist may help explain the ambivalence that the publishers have shown toward its use. The Association of American Publishers has announced support for several university policies that include the checklist, including Cornell’s and Syracuse’s, but they have lately seemed more hostile towards it. It is easy to see why, really. On the one hand, it is in publisher’s interest to have university employees get beyond a simplistic view of fair use, which is usually too generous, and look more closely at the full range of considerations that need to be taken into account (this explains, I think, the use of a version of the checklist by the Copyright Clearance Center as well). On the other hand, that deeper consideration will, itself, make universities less attractive targets for litigation, which seems to be the chosen weapon in the battle to narrow educational fair use.
I have to admit that I too feel a good deal of ambivalence toward the checklist, albeit for somewhat different reasons. I would like every staff and faculty member who must make fair use decisions to have a complete and nuanced view of the doctrine they are applying. But I recognize how impossible that is. Until our campuses are populated entirely by IP lawyers (may that day never come!), I will continue to believe that the fair use checklist is a highly imperfect, but even more highly necessary, tool for navigating the traitorous waters of contemporary fair use.
Can a “batty” ruling effect needed change? July 7, 2009
Posted by Kevin Smith in : Copyright Issues and Legislation, Copyright in the Classroom, Fair Use, Technologies, User Generated Content , 3commentsIt is thoroughly unbelievable news that US District Court Judge Deborah Batts has issued a permanent injunction against the US publication of a book that purports to update the story of Holden Caufield, the protagonist of J.D. Salinger’s “The Catcher in the Rye.” The new book, written by Swedish author Fredrik Colting and already published in Britain, is called “Sixty Years Later: Coming through the Rye” and is told by a 76-year-old man called Mr. C. There is little doubt that Mr. Colting is trying to ride the continuing popularity (which I personally have never understood) of “Catcher in the Rye” by creating a sequel. But there is a great deal of doubt about whether this is a copyright infringement. The portions of the decision I have been able to read suggest that Judge Batts got all of the major copyright issues involved completely wrong.
First there was the fair use argument. In a very similar case involving a retelling of the the story of “Gone With the Wind” from the point of view of one of the slaves at Tara, the Eleventh Circuit Court of Appeal correctly recognized that the new work was a fair use of material copied from “Gone with the Wind.” And in the recent decision finding that “The Harry Potter Lexicon” was not a fair use, Judge Robert Patterson, in the same judicial district as Judge Batts, went out of his way to make clear that an author of an original work cannot control all sequels, prequels and reference works. Judge Patterson even writes, citing other precedents in the Circuit, that “a work is not derivative, however, simply because it is “based upon” the preexisting work.” (p. 39) But that erroneous conclusion is exactly the foundation of Judge Batts’ decision.
Judge Batts seems to know only one fair use precedent — the “Oh Pretty Woman” case from the Supreme Court — and she applies it slavishly. Since she does not think that the new book is an actual parody of the original, she holds that it is an infringing derivative work. But it should be clear to anyone who is a federal district court judge that there are other kinds of fair use than parody; indeed, a quick read of section 107 itself would get one that far.
The real problem, however, is that this should not have been decided as a fair use issue. In the two cases cited above, there was a substantial amount of material that was actually copied from an original into the new work. In the case of the “Wind Done Gone,” specific dialogue was reproduced, with commentary and perspective from the “new” protagonist. In the case of “Coming Through the Rye,” there seems to be no evidence of actual expression that is copied in the sequel. Judge Batts focuses her objection on the conclusion that “Holden Caufield is delineated by words” and that therefore Holden is copyrighted. But this ignores the fundamental distinction between expression, which is protected by copyright, and ideas, which are not. All ideas are delineated by words, but that does not give the ideas themselves, even the idea of a solipsistic teenager who inevitably grows up, copyright protection. Even before she reads section 107, Judge Batts needs to read section 102(b) of the Copyright Act.
Indeed, her decision is so unaccountable that its leads this commentator at TechDirt to question whether there really is an idea/expression dichotomy in copyright law at all. But that dichotomy carries a lot of weight in US law; it is frequently cited, including by the Supreme Court, as one of the basic concepts (along with fair use) that keeps copyright law from becoming an infringement of free speech. Now that Judge Batts has read the distinction out of the law (or failed to read the law at all), the conflict with free speech becomes all too apparent, when a new book can be banned in the US because an old author doesn’t like it.
So what good can come from this ridiculous decision? First, it should be, and very likely will be, overturned on appeal. But more importantly, it should prompt Congress to look again at the exclusive right, granted in copyright law, to prepare derivative works. That right has not always been part of copyright; there was a time when even abridgments and translations were held not to infringe on an original. The pendulum has now swung the other way, and we grossly overprotect some original works from legitimate reuse because we think those new creations are derivative works. As is frequently pointed out, Shakespeare could not have written his plays under today’s copyright regime in the US. It is time for clearer definition of what is and, more importantly, what is not a derivative work that is entitled to protection. If outrage over Judge Batts’ decision can prompt such clarity, some good might come from this very bad ruling.
Openness and academic values June 26, 2009
Posted by Kevin Smith in : Authors' Rights, Copyright in the Classroom, Open Access and Institutional Repositories , 2commentsAn interesting controversy arose recently at San Jose State University, when a professor objected to the fact that one of his students posted source code he had written as part of some class assignments onto the web. Amazingly, the professor claimed that sharing this code was tantamont to plagiarism, since it made the student’s work available for others to copy, and might be copyright infringement. This latter claim seems to have been based on the professor’s belief that, as the author of the assignment, he had a copyright interest in the work of the student. There is a report and comment about this case from Ars Technica here, and one from Inside Higher Ed here. The University’s Judicial Affairs office did not comment on the copyright claim, but it did determine that the student had not violated the academic integrity policy and could not be prohibited from posting his own work. There are lots of opportunities here to elucidate copyright issues and ponder the important values of academia.
As far as the copyright issue is concerned, it seems pretty clear that the professor does not really have a claim here, at least not if all he did was to pose a problem for his students to solve. Ideas, we must recall, are not protected by copyright, only expression is. Computer code is protected by copyright from the moment it is fixed; the Copyright Office considers software a “literary work.” That protection is vested in the author, and no interest is owned by a person who merely set the parameters of the work or suggested ideas which might be used. Patents, which are also available for software, do protect ideas, and perhaps the SJSU professor is confusing the two very different kinds of protection (although there is no indication that anyone has sought a patent). Unlike a patent, there is no need to apply for copyright protection. That protection is owned by the author of the expression.
Which brings me to the most important reminder to be taken from this case. It is that students own the copyrights in the works they create at our institutions. As the digital age offers new opportunities to disseminate scholarship, including student scholarship, we need to remember that students own their copyrights (just as professors own theirs) and formulate appropriate policy to respect those rights and facilitate use and sharing as needed.
On the plagiarism charge, I think it is clear that SJSU was correct to affirm the ability of students to share their work. If open access sharing is thought to be a problem because of the mere potential for plagiarism, all publication would pose a similar threat. And especially in the area of computer science, where open source code is a common norm, it is important for students to learn the value of sharing in terms of the ability of a community to review and improve a scholar’s work, and to develop judgment about when a particular work is ready to be shared.
There are many reasons to share scholarship, and very few reasons to keep it secret. Scholarship that is not shared has very little value, and the default position for scholars at all levels ought to be as much openness as is possible. There are a few situations in which it is appropriate to withhold scholarship from public view, but they should be carefully defined and circumscribed. After all, the point of our institutions is to increase public knowledge and to put learning at the service of society. And there are several ways in which scholars benefit personally by sharing their work widely. The SJSU student hoped that potential employers would see his work and be impressed; how can a university object to that hope? Indeed, it reflects the professional ambitions of most scholars, and they, like our student, benefit in that ambition if they share their work as openly as possible. Openness should be the default for academic work, and closed access only an alternative when there are clear and coherent reasons that justify it. In this case, the student has something important to teach the professor about the important values of academia.
An approprate way to close this reflection is to point to the web site for the Open Student organization, where students are working constantly to remind the academy that openness and public access are key elements to embodying our educational mission.
