This gets a little technical, so bear with me.

When the lawsuit was first filed, lots of librarians and other academics read the complaint and thought, if that is what GSU has been doing, they have really been pushing the envelope.  The copyright policy under which the University System of Georgia operated was the work of a brilliant scholar, but it represented a very liberal interpretation of the law.  The complaint outlined objections to the policy, as pushing the interpretation of fair use too far, as well as citing practices that seemed outside even the broad scope of the Georgia policy.

Earlier this year, the Georgia Regents adopted a new copyright policy after a select committee reviewed and entirely rewrote the older one.  The new policy is shorter, more easily comprehended and more pragmatic.  In fact, it comes a lot closer than its predecessor to reflecting policies around electronic course content that are common on many campuses.

After this new policy was adopted, attorneys for GSU filed a motion for a “protective order” which would state that only information about electronic course content going forward, under the new policy, could be “discovered” by the plaintiffs.  GSU argued that since they were a state institution, and therefore entitled to immunity from damages, the plaintiffs could only get prospective relief (an injunction) and therefore should be limited to information about practices related to the policy under which GSU would go forward.  After some legal maneuvering, the Judge granted this request last week.

As I read the Judge’s decision on this motion, the only reason the Plaintiffs now need to know anything about prior practices at GSU would be to argue that the new policy has not really changed anything. And Judge Evans has now held that enough has already been revealed about past practices to support or refute that argument.

For the rest of us, this means that the decision about fair use, if the case gets that far, will be a lot more relevant to e-reserve and course management systems use around the country.  That, of course, could be a good thing or a bad thing, depending on how the decision goes.  But it seems the decision will be based on policy and practice a lot closer to what many schools use (assuming, of course, that the new policy really does indicate changes in practice).  Presumably a ruling in favor of fair use is a little more likely now that it will be decided on the basis of this more pragmatic policy.  And such a ruling would more clearly support wide-spread practices in higher education.  On the other hand, a ruling against Georgia State, if it happens, would be much harder for the rest of us to explain away and distinguish from our own practices.

Share This

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.

Share This

There is some irony in Dames’ article, however, in his use of “theft” as an alternative to “piracy,” as when he asks “should “piracy” continue to be used to mean theft of works that are protected by copyright or other forms of intellectual property (IP)?”  Black’s Law Dictionary, following a long common law tradition, defines theft as “the felonious taking and removing of another’s personal property with the intent of depriving the true owner of it.”  This definition indicates why theft is also a poor word to use to frame the problem of infringement.  The characteristic of intellectual property that it can be shared without depriving the original owner of it, and that its value, in fact, depends on this ability to share copies, explains why legislators have always distinguished infringement from theft.  To infringe does not mean to “remove” the IP but to copy it.  Nor is there an intention to deprive the owner of the property, merely some of its value.  Since theft is a “specific intent” crime, IP is not treated as personal property (chattels) under the law, but in a conceptually different category which can be infringed but not stolen.

Why do these fine legal distinctions matter?  In my opinion, the greatest harm done by the rhetoric of piracy and theft is that it seems so absurd to many people that they discount the seriousness of infringement.  The ubiquity of file sharing today seems to prove this point.  By overreaching in their rhetoric, the content industries encourage many people not to take them seriously.  But infringement is a serious matter; it deprives someone of their rights, if not their property, and that is a matter the law should take seriously. The rhetoric of theft and piracy makes it too easy to laugh and scoff instead.

Nevertheless, the exaggerated language and claims of the content industries do have some effect.  For one thing, they can influence juries to get swept up in the overheated atmosphere created by talk of piracy and theft.  How else can one explain the verdict in the second trial of Jammie Thomas-Rasset?  When her first trial for downloading 24 songs without authorization ending in a judgment of $222,000 in damages, or $9,250 per song, the judge himself called that amount “unprecedented and oppressive.”  Now the second jury has assessed damages of $80,000 per song (although there seems to be no chance of collecting that money and indications that the RIAA will not try).  It is easy to conclude that the same rhetoric that seems so silly and inapt as part of an “education” campaign is very effective in the hothouse atmosphere of a courtroom; perhaps, indeed, that has been the point all along.  In any case, we will certainly hear a great deal more from the content industries trumpeting this victory and trying to deter even legal sharing with the threat of ridiculous damage awards.

In the meanwhile, Fred von Lohman of the Electronic Frontier Foundation raises the interesting question of whether this award of damages is constitutional.  The Supreme Court has struck down punitive damage awards in the past when they were considered so out of line with actual damages that they violated due process, and in the Thomas case the actual damages were less than $25.  So an award of almost 2 million is certainly out of line.  The problem is that statutory damages are different from punitive damages in an important way — they are written into a statute.  Excessive punitive damages have been found to violate due process because they are unforeseeable; a defendant in a relatively small case cannot imagine that they could find themselves liable for millions, and the decision to create such liability is made solely by a jury in the specific case.  The Court has found that reasonable foreseeability is a limit on a jury’s discretion in such situations.  In an infringement case, however, the range of damages is specified in the law, and a potential defendant should know the consequences prior to undertaking infringing activity.  There is not, in short, the same kind of due process problem in copyright cases.

This is one reason why I do not expect the award in the Thomas case to be challenged on Constitutional grounds.  The other reason is that the RIAA has already signalled that it is willing to settle for much less money; it wants to advertise the judgment but not appear like an ogre trying to squeeze blood from a turnip.  Perhaps the best reason for the RIAA not to try to collect here, however, is that it does not want to see either a court challenge to the Constitutionality of the statutory damages provision of the copyright law OR a legislative awakening to the obvious fact that these damages have gotten out of hand and should be reduced as a matter of good law and common sense.

Share This

When I spoke to the eIFL IP conference back in March, this history of fair use was in my mind as we discussed the flexibility that fair use offers versus the certainty offered by more specific exceptions for research and teaching found in the copyright laws of most other countries.  I blogged about those reflections a couple of months ago, and also wrote recently about the history of fair use in the US.

Now I have just finished reading an article by Duke Law Professor Jerome Reichman and Professor Ruth Okediji of the Univerisity of Minnesote Law School that has renewed and deepened these comparative reflections about fair use and international copyright law.  The paper, “Empowering Digitally Integrated Scientific Research: The Pivotal Role of Copyright Law’s Limitations and Exceptions,” is a sweeping discussion of the potential inhibition of science and international development caused by copyright law’s “one-way ratchet” in international fora, by which levels of protection keep getting increased while limitations and exceptions have been, until recently, largely ignored.  But I want to focus briefly on a small part of the discussion by Reichman and Okediji about the relationship of fair use to limitations and exceptions in the rest of the world.

The point I want to emphasis is fairly simple (probably because I have not fully digested the article yet).  It is simply that fair use and the “three-step test” used to evaluate limitations and exceptions under international agreements have something to teach each other.  The three step test, found in the Berne Convention in article 9.2 and in several other places in international IP agreements, says that limitations and exceptions adopted into national copyright laws should apply to “certain special cases,” not “conflict with normal exploitation” of a work, and not “unreasonably prejudice the legitimate interests” of a rights holder.  There has been a great deal of debate about how to interpret these terms and how to apply this test; the major content industries have latched onto its language to suggest that only the narrowest of exceptions can pass muster.

Reichman and Okediji suggest that the interpretation of the three-step test should proceed more in the way fair use is interpreted, as an equitable balancing test where there is no “score keeping” of the factors, nor must each factor favor the same side of a debate.  Instead, they argue, quoting the Max Planck Institute’s declaration on the subject, courts should weigh these three steps in light of the circumstances and the normative values that IP law tries to embody.  In short, they see the three-step test as an “equitable rule of reason,” as fair use has been called for years.

On the other hand, Reichman and Okediji also find a lesson for fair use in an examination of the three-step test.  One reason judges are sometimes reluctant to apply fair use in a given situation is that it is an “all or nothing” proposition.  If a work is fair use, the rights holder is not entitled to any compensation for the use.  As the authors see the three-step test, it suggests the lesson that sometimes a use may serve the public good to such a degree that, in the circumstances, no compensation is called for.  But they also recognize that there may be situations where the use should be allowed, but equitable compensation paid to the rights holder.  They suggest that situations in which the use serves a normative public good but also generates revenue, a rights holder could deserve compensation from those revenues.  Thus fair use would become a mechanism for imposing, in some circumstances, a compulsory license for a particular use rather than a free pass.

This is a fascinating suggestion, and one wonders whether judges could, or would, make this change to fair use without statutory amendment.  Congress specifically said, when it incorporated fair use into the law, that that doctrine was left free for further interpretation.  In any case, this is only one of a compelling series of points that Reichman and Okediji make about the relationship between copyright law and the progress of science around the world.

Share This

Next, I ran across this blog post by T. Scott Plutchak, the Director of the Health Sciences Library at the University of Alabama at Birmingham, about peer review and the NIH Public Access mandate.  I certainly do not agree with everything Plutchak says here.  He often seems to treat copyright as a publishers’ right rather than a right that vests with an author at the moment of creation, and that error creates a significant confusion when he mentions, and rejects, the argument that “the publisher has the right to refuse to grant the license.”  Of course, it is the author, as the original copyright holder, who grants a license to NIH as a condition of funding.  The publisher merely decides whether or not to accept an article and the transfer of a copyright that is subject to that prior license.  But Plutchak is quite right to raise the issue of peer-review and to note that the NIH clearly values such review and is gaining a benefit from a process that is managed by publishers.

That concern leads me to the article I really want to point to with this post, “Publish and Cherish with Non-proprietary Peer Review Systems” by Leo Waaijers.  Waaijers raises the same point that worries Plutchek and says quite bluntly, in the context of the multiple open access mandates from funding agencies that sponsor research in the European Community, that such mandates are unfair to a large number of authors because they are forced to negotiate copyrights with a variety of publishers, and most cannot publish in fully open access journals.  Most of the others must transfer copyright in order to gain the obvious advantage of the peer-review system managed by commercial publishers.  Waaijers’ solution to this unfairness is striking; it is simply that funding agencies should contract directly with publishers to create “non-proprietary” peer review systems.  By this he means systems that can accomplish independent peer review without insisting on a transfer of copyright; such systems would allow far more authors to make their work available directly in open access form without jeopardizing their promotion and tenure processes.

This suggestion clearly requires a lot of thought.  But two interesting things seem to stem from such a idea.  First, by separating peer-review from the process of proprietary publication, it would create an on-going role for some publishers even when and if their current business models become unsustainable.  Waaijers’ suggestion would ask existing publishers to submit proposals to the funding agencies to run these peer review systems, which would be independent of their other publication activities, thus taking advantage of developed expertise without continuing to tie that expertise to a specific model of scholarly communication.  Second, by examining the bids created in respond to a funder’s tender or request for proposals, the scholarly community would gain much better insight into what it actually costs to run a peer review system, which is, after all, the part of the current model of scholarly publication that is most important to scholarly authors and that we must take care to preserve in some form.

Share This

First, because it is the most general, is this new web site called “Teaching Copyright” from the Electronic Frontier Foundation.  This is a full-scale online curriculum designed to teach students about copyright,  It is intentionally offered to counter some of the educational efforts of the music and movie industries, which tend to focus heavily on what is not allow and try to avoid mentioning fair use or other exceptions that benefit users and support new creativity.

Second is what I like to call the most boring seven minutes on YouTube.  I realize that there is great competition for that honor, but this video in which I discuss the copyright and privacy issues involved in recording campus lectures and classes for Internet distribution surely has a claim.  It was made at the request of the Duke Office of News and Communications, and I have reason to hope it is helpful, even if it is not exciting.  If viewers are seeking entertainment after listening to me drone through the rights issues they need to consider, it is worth while looking around at the other videos on the Duke Libraries YouTube channel; many are much more exciting.

Next is this video from JISC on Intellectual Property Rights in Web 2.0 world.  It is a cute, colorful and nicely detailed discussion of rights and permissions issues that need to be considered as one creates new content for the web, and it points to an “online diagnostic tool” that will walk one through the issues in greater detail.  One warning, however, is that because this video and diagnostic tool are created in reference to UK law, where there is no fair use provision, their suggestions for when permission is needed must be reconsidered by US citizen in the light of our fair use provision.  Nevertheless, this is a helpful way of evaluating the issues and the various strands of rights that have to be considered, even if the conclusions will seem too strict to Americans.

The antidote to JISC’s lack of reference to fair use is this final video from the Center for Social Media on Fair Use and Online Video.  The Center has been a great champion of fair use through its work to create best practices documents to guide filmmakes and teachers of media literacy.  Now this video, and the accompanying best practices that it refers to, make the process of figuring out how and when fair use applies to allow a use without permission from the rights holder both clearer and rather entertaining.  This, and all of the resources mentioned above, are additional tools for the ongoin effort to clarify copyright for our students, staff and faculty; it is nice to be able to point to such a array of different, and amusing, media

Share This

Although I am not convinced that the two principles usually cited were ever adequate, especially as the scope of copyright’s monopoly expanded, what has clearly changed, in recent years, is that Congress adopted the Digital Millennium Copyright Act in 1998.  The DMCA added two provisions to the copyright act that have had a negative impact on free expression.

First were the legal protections provided for technological protection measures, or DRM (digital rights management) systems.  It is ironic that content owners decided to move toward technological locks because they felt that legal protections were inadequate, and then found they needed legal protection for those locks when they proved insecure.  But the combination of digital locks and “anti-circumvention” rules has been devastating for free speech; even use of public domain works can now be locked up, and the law will prevent access.

Lest we forget the power of DRM, here is a note about the Motion Picture Association of America “reminding” a court that it is illegal to circumvent DRM systems even for a use of the material that would be perfectly legal.  So when digital locks are used, one of the safeguards our courts have relied on to preserve free speech — fair use — is apparently useless.  As the EFF attorney mentioned in a blog post linked above says, it is by no means certain that fair use is entirely trumped by DRM, but there is a case that held that, and the content owners certainly believe that fair use is now obsolete.

An extensive study done by Patricia Akester, a researcher with the Centre for Intellectual Property and Information Law at Cambridge University, lends weight to that argument that what she calls “privileged uses” (like fair dealing in the UK and fair use in the US) are adversely impacted by DRM systems.  There is a report of her study here, and the full text (over 200 pages!) is here.  Akester may have done the first empirical study of these adverse effects, and her conclusions are sufficiently gloomy to lead her to suggest a legislative solution.  She proposes that a “DRM Deposit System” be established where content owners are required to deposit either the key to their lock or an unencrypted copy of the work.  Then a user could make an argument or meet a set of requirements for access when their proposed use was clearly within a privilege.  If the content owner declined to deposit with the system, circumvention for access for privilege uses would be allowed.  Some such system, similar to the “reverse notice and takedown” proposal discussed here over a year ago, is clearly needed if fair use is to continue to function as a safeguard of free speech.

The other provision of the DMCA that imperils free expression is the notice and takedown procedure itself, which was created to protect Internet service providers (ISPs) from liability for infringing activity that happened over their networks.  In one sense, this “safe harbor” has been good for fair use, allowing the creation of user generated content sites like Flickr and YouTube where lots of fair use experimentation can take place.  But that take down procedure is being abused, with bogus notices being sent to prevent legitimate and even socially necessary criticism and parody.  ISPs are quick to takedown sites that are named in these takedown notices, and the process for getting them restored subjects the original poster to an increased risk of liability.  It is very costly, after all, to defend free speech even against a bogus claim.  So abusive takedown notices have now become a favored way to suppress criticism and comment that is unpopular with a major company or content owner.  The long tradition of “I Hate BigCo, Inc., and here is why” web site, which courts have often held to be fair use of copyrighted and trademarked content, is now much riskier than it was before.  In fact, the Electronic Frontier Foundation has even created these six steps to safegaurd a gripe or parody site, recognizing that free speech is not longer sufficiently protected by traditional provisions within the copyright law alone.

Share This

It is hard to believe that in the mid-19th century a copyright holder did not have the right to authorize an abridgment or translation of a book, or to object to such unauthorized efforts.  Yet in 1847 Justice McLean held, in Story v. Holcombe, that an abridgment did not infringe the rights held in the original, even though he admitted that it was a market substitute for that original.  Six years later, Justice Grier found that a German translation of Uncle Tom’s Cabin was not an infringement of Harriet Beecher Stowe’s rights in her original novel (Stowe v. Thomas, 1853).  Both an abridgment and a translation are clearly derivative works under today’s law, the exclusive rights to which are reserved to the copyright holder (see our last post about a translation law suit in Argentina).  So what were these justices thinking?  As Bracha points out, there was a shift in progress from looking primarily at the new work’s “usefulness to the reading audience” to primarily protecting the market value of the original in all its potential forms.  These two cases are on the trailing edge of that shift; the last gasps of the older notion of allowing free adaptations when there was a clear social benefit.

The remarkable point, to me, is that the development of fair use occurred within this same transition.  As Bracha sees it, fair use was “a vehicle for the radical enlargement of the scope of copyright.”  Throughout the middle of the nineteenth century, the scope of copyright was dramatically expanding from a limited “printers” right to prevent near-verbatim reproductions to a full-blown notion of ownership over an “abstract intellectual essence” that could find express in a myriad of forms, all of which were under the control of the author.  Fair use, created by the same judges who were overseeing this expansion, became a substitute for all of the socially beneficial uses that were previously outside the scope of copyright.  Fair use is the bete noir of rights holders and copyright maximalist, yet Bracha argues effectively that it really developed in order to make judges more comfortable with a vast expansion of copyright’s scope, precisely to provide an economic windfall to rights holders.

Bracha offers a nice summation of the tension between economic protectionism and a social ideal of broad dissemination of knowledge and information that is, he says “inherently built into a modern copyright system.” As he phrases it, such a system “creates private exclusion power over information in the name of maximizing the free dissemination of information.”  Would we actually be better off, to ask a radical question, if rights holders did not have control over translations, as they did not in 1853?  Perhaps the students of that Argentinian professor that I wrote about last week would be.  And it does not seem that fair use would do those students or their professor any good at all, even if they were in the US.  It is hard to imagine a US judge today finding that fair use would permit an unauthorized translation even in a situation where no commercial translation was availabile.  So the addition I would make to Bracha’s fascinating history is this observation: the massive expansion of copyright’s scope and its term of protection has forced fair use to do work it was never intended to do, and it is no longer an adequate safeguard of social interests; perhaps, instead of comforting ourselves with the fiction that fair use is good enough, we need to go back and look critically at the scope of copyright itself.

Share This

So what did Professor Horacio Potel do?  He made Spanish language translations of some 20th century classic works in philosophy (Heidegger, Derrida and Nietzsche) available to his students.  He asserts that such versions simply are not available for purchase to his students.

Unfortunately for Professor Potel, lack of availability is not really a defense against copyright infringement.  In a country with a fair use provision (US, Japan, Israel), such unavailability might help with the forth fair use factor, the impact (or lack thereof) on markets for the original.  Rights holders, however, often point out that this factor includes potential markets, and asset that it should be their option whether and when to exploit a particular market.  Thus the answer to Professor Potel’s dilemma from those who hold the rights in these works is basically that his students are out of luck.  For those following the debate about whether copyright laws do more harm than good at The Economist, this instance where copyright is being used to enforce the unavailability of educational resource ought to weigh heavily on the harm side of the balance. (By the way, the voting on the motion showed 71% agreeing that the law did do more harm than good, while 29% felt it was more beneficial).

It is worth noting, while looking at an international infringement case, that the principle international treaty on copyright law, the Berne Convention for the Protection of Literary and Artistic Works, does not contain the same broad exclusive right for “derivative works” that is found in US law.  This is probably a good thing, since it is sometimes very difficult to define exactly what is a protected derivative work.  Leaving that definition up to individual countries seems like a good idea, but it really won’t help Professor Potel.  The Berne Convention does mandate that its members protect two specific derivatives — translations, in article 8 (sorry, Professor) and cinematic adaptations in article 14.  I have little doubt that Argentinian law includes those exclusive rights, so Prof. Potel must, I fear, base his defense on social utility and lack of market harm, two claims that don’t seem to carry much weight these days.

Share This

So I was rather pleased to find an exception — actually a series of exceptions– to this over-enforcement in a recent case out of the federal district court in the northern district of Texas.  While this line of cases does not accomplish what I have wished for, a ruling that copyright law and its exceptions should preempt non-negotiable contracts, they do show that, in some circumstances, courts will reject a clickwrap agreement when the seller takes too much advantage of its powerful position.

Cathryn Harris agreed to a clickwrap license when she signed up for a particular online program run by Blockbuster.  Such licenses, of course, condition service or access on agreeing to a set of terms that is wholly non-negotiable; all the user can do is click “I Accept” or forgo the service entirely.  I have complained about enforcement of a similar licenses in the Turnitin case by a court in Virginia, where the students were compelled by their school to sign up with Turnitin.  In this case, when a dispute arose and Ms. Harris filed suit against Blockbuster, the company tried to enforce the clause in the clickwrap licenses that sends all disputes to arbitration (which is much less expensive).  Ms. Harris opposed the motion to compel arbitration, and the Texas court sided with her, ruling that the entire agreement, including the arbitration provision, was invalid.

The reason the court rejected the license was that it contained a provision saying the Blockbuster could change the terms of the agreement at any time, without notice.  Such provisions are not uncommon in clickwrap licenses, because the nature of the agreement makes it impossible for the seller to contact everyone who agrees to the terms of use.  But here the court said that such a clause makes the contract “illusory.”  Contracts, after all, are an exchange of promises, and a one-sided, “we can change the terms anytime” clause really means that the side that drafted the agreement has not made any promise at all that it is bound to stick to.  When an apparent promise really is just statement of discretion — “I will pay you $20 to wash my car if I decide it was worth it” — courts call those contracts illusory because there is no real exchange of promises.

As this analysis of the case shows, there have been several cases in which such clauses allowing one-sdied changes have caused a clickwrap agreement to be found illusory.  It is interesting that they are all about arbitration.  I suspect this is because arbitration is something that must be based on mutual agreement, and courts are reluctant to limit a person’s access to the legal system based on a promise they could not undertake voluntarily.

For the purposes of our concerns here, this case is a small indication that clickwrap licenses must be drafted carefully, and that the fact that users seldom read such agreements is not an excuse to overreach too far.  When the issue is important enough, a court will occasionally void a one-sided agreement rather than enforce terms that put one party at too great a disadvantage.  Perhaps we will soon see such a willingness to reexamine clickwrap agreements when the disadvantage caused is a loss of those user rights that Congress so clearly intended when it drafted the copyright law.

Share This