Update on Georgia State Copyright Case

The keenly watched copyright case that has pitted three academic publishers (Cambridge and Oxford University Presses and Sage)against Georgia State University has entered the appeals phase, with a flurry of filings and motions this week and more expected soon. One surprise motion has come from the U.S. Department of Justice, which has requested more time to consider filing an amicus brief either in support of the publishers or in support of neither party. The possibility that the government might weigh in triggered speculation and anxiety among some observers, including academic librarians worried that the Justice Department could sabotage educational fair use if it sides with the publishers against the university.

The case will be heard by the U.S. Court of Appeals for the 11th Circuit.

In their brief, filed on Monday, the publishers argue that, if the lower court’s ruling stands, it will have implications that go far beyond Georgia State’s practices. The publishers content that e-reserves amount to course packs or anthologies of reading material. They claim Judge Evans’s decision “invites universities nationwide to accelerate the migration of course-pack creation from paper to electronic format” and to sidestep legal permission to use copyrighted content. That pattern of behavior could undercut “the efficient licensing markets that have evolved to serve the needs of academic users” which, in turn, “would threaten the ongoing ability of academic publishers to continue to create works of scholarship,” they argue.

The Association of American University Presses plans to file an amicus brief on behalf of publishers on Monday, February 4.

Stay tuned!

UCLA Copyright Lawsuit Over Streaming of Videos Dismissed–Again

A federal judge in California has for the second time thrown out a lawsuit that accused UCLA of violating copyright law by streaming videos online for student use.

Judge Consuelo B. Marshall of the U.S. District Court in Los Angeles had previously dismissed the lawsuit in October 2011, but she allowed the plaintiffs, Ambrose Video Publishing Inc. and the Association for Information Media and Equipment, a trade group, to file a second amended complaint. In a ruling issued last Tuesday, she rejected the second amended complaint.

The plaintiffs contended that UCLA had acted illegally in copying DVD’s of Shakespeare plays acquired from Ambrose and streaming them online for faculty and students to use in courses. UCLA argued that streaming the videos was permissible under the fair-use principle, which can allow reproductions for teaching, and the Teach Act, which allows limited use of copyrighted materials for online education.

In her ruling, Judge Marshall said the plaintiffs had failed to provide adequate support for their infringement claim. The ruling hinges largely on findings that the plaintiffs lacked standing and that the defendants had sovereign or qualified immunity. But in a section of the ruling, Judge Marshall also considered four factors relating to the fair-use arguments.

One of those factors weighed in favor of not finding fair use, she wrote, “because the entire works were streamed, not just portions.” But, on balance, she wrote, “the court concludes that there is, at a minimum, ambiguity as to whether defendants’ streaming constitutes fair use.” She added: “Notably, no court has considered whether streaming videos only to students enrolled in a class constitutes fair use, which reinforces the ambiguity of the law in this area.”

A lawyer for the defendants, who include the UC Regents, said the ruling was “a complete victory.” The lawyer, R. James Slaughter of Keker & Van Nest LLP, told the news service Law360 that the ruling “confirms what UCLA has long believed: that streaming previously purchased video content over its intranet for educational purposes is not a copyright violation or a violation of any contract.”

Lawyers for the plaintiffs were not immediately available for comment.

–Adapted from an article by Charles Huckabee in the November 26, 2012 issue of The Chronicle of Higher Education.


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Authors Guild to Appeal HathiTrust Ruling

According to an article in today’s Publishers’ Weekly, the Authors Guilde announced its decision to appeal in a court filing late last week. A federal judge last month threw out the authors’ argument that HathiTrust Digital Library and its university partners had violated copyright law by scanning books and making them available for certain uses, a decision that observers hailed as a big victory for the principle of fair use.
Although few details were available at PW’s press time, it isn’t hard to imagine on what parts of the decision the Guild appeal might hinge: in a statement issued at the time of the decision, the Authors Guild said they “disagree with nearly every aspect of the court’s ruling.”

Publishers and Google Reach Settlement

The Association of American Publishers (AAP) and Google today announced a settlement agreement that will provide access to publishers’ in-copyright books and journals digitized by Google for its Google Library Project. The dismissal of the lawsuit will end seven years of litigation. For details, read the press release from the American Publishers Association here and from Google here, and early analysis from the trade magazine Publisher’s Weekly and TechDirt.  The AAP/Google settlement does not affect the continuing litigation between Google and the Authors’ Guild.

Streaming Video Case Against UCLA Dismissed

A judge dismissed a lawsuit on Monday that had accused the University of California, Los Angeles of copyright infringement for streaming videos online. The lawsuit against UCLA was filed by the Association for Information Media and Equipment (AIME) and Ambrose Video Publishing Inc. in the U.S. District Court for the Central District of California. Those plaintiffs claimed that UCLA had violated copyright and breached its contract by copying DVD’s of Shakespeare plays acquired from Ambrose and streaming them online for faculty and students to use in courses.

U.S. District Court Judge Consuelo B. Marshall found multiple problems with these arguments. Among the most important: He didn’t buy the plaintiffs’ claim that UCLA had waived its constitutional “sovereign immunity,” a principle that shields states—and state universities—from being sued without their consent in federal court. The judge also held that the association, which doesn’t own the copyrights at issue in the dispute, failed to establish its standing to bring the case.

The decision means “universities will have a little more breathing room for using media,” says James Grimmelmann, an associate professor at New York Law School. But the more important implication is that the case will be a precedent that universities can cite in future copyright disputes, Mr. Grimmelmann says. The UCLA decision will make the Authors Guild case against HathiTrust more of a long shot, he speculates. That battle, which concerns a collection of digital books that Google scanned from university libraries, also involves an association suing on behalf of copyright owners, and the target of the lawsuit is a digital repository hosted by a state institution, the University of Michigan at Ann Arbor. In addition to Michigan, defendants in the HathiTrust case include Cornell University, Indiana University, the University of California, and the University of Wisconsin. “That suit has almost exactly the same sovereign-immunity and standing problems as this one,” Mr. Grimmelmann says. “If the HathiTrust suit were to be decided tomorrow by the same court, it would be dismissed.”

The Association of Research Libraries (ARL) hailed the UCLA victory as an especially welcome bit of good news, given all the copyright struggles dogging universities. But ARL pointed out in a blog post that the decision ”stops short of vindicating the strongest fair-use arguments in favor of streaming.” Kevin Smith, Duke University’s scholarly-communications officer, also noted in his own post that, because much of the dismissal hung on the sovereign-immunity question, “a major part of the decision applies only to state entities” and “does not translate to private universities.”

–Adapted from an article by Marc Perry in The Chronicle of Higher Education, October 4, 2011

Update on Georgia State lawsuit

The plaintiffs and the defendants in the fair-use lawsuit that has pitted three academic publishers against Georgia State University have now filed their final post-trial briefs. That was the last opportunity for each side to make its case before the federal judge overseeing the case in Atlanta delivers a ruling. No date has been set for a decision in the closely watched case, but observers say one is likely by early fall. Cambridge U. Press, Oxford U. Press, and SAGE Publications have alleged that the use of copyrighted material in e-reserves and on faculty Web sites has exceeded the bounds of fair use.

From the Chronicle of Higher Education, August 4, 2011.

Publishers Grapple With Thorny Issues of Protecting Property and Going Digital

(Adapted from an article by Jennifer Howard in the Chronicle of Higher Education)

Collaborate and share—but protect your copyrights. That was the sometimes conflicting message heard at the Association of American University Presses’ annual meeting, which ended in Baltimore on June 5th. Many of the sessions and conversations took a digital turn, too, as attendees compared notes on how to acquire, produce, and market scholarly e-books and journals.

More than 700 scholarly-publishing professionals registered for the meeting, making it one of the association’s largest ever. (About 500 people signed up for last year’s conference in Salt Lake City.)

The official theme was “The Next Wave: Toward a Culture of Collaboration.” Many panels examined different partnerships that university presses have lately made a priority. For instance, one session gave an overview of four ventures being developed to sell aggregations of university-press monographs to libraries by Project MUSE, JSTOR, and Cambridge and Oxford University Presses.

One panelist at the session, Michael Levine-Clark, collections librarian at the University of Denver, gave the audience a long list of features the e-book aggregations will have to include to satisfy libraries. “We need to be able to get whichever books we want on whatever platforms make sense for us,” he said. “We absolutely need flexible pricing.” E-books should be available at least as soon as any print edition is, he told the crowd, and they should also be easy to use and not tied down by too much rights-management software.

At a session on “List Building for the Digital Age,” several editors talked about learning to incorporate what one called “e-thinking” into book acquisitions much earlier than they used to. They were joined by a literary agent, Will Lippincott of Lippincott Massie McQuilkin, who described the nervousness he encounters among authors and publishers over the unknowns of digital publishing: What kinds of royalty agreements are fair, for instance.

Jennifer Crewe, associate director and editorial director of Columbia University Press, described her press’s experience with a couple of digital-publishing projects. She suggested that some bells and whistles—book-related apps, for instance—go beyond what many scholarly publishers can or should do at this stage. “I don’t think that developing apps, especially at low consumer prices, is going to be the salvation of university presses,” Ms. Crewe said.

In a sign of how absorbed many press personnel are by digital publishing, one of the liveliest sessions was reportedly one on “How Good Is Your Metadata?” A Chronicle reporter did not attend that particular panel, on the assumption it would be a dry subject. “The panel made the important point that in the e-book world, your book is invisible so metadata is the only way to be discovered,” John P. Hussey, director of marketing and sales at the University Press of Kentucky, told The Chronicle afterward via Twitter. One panelist, Bob Oeste, senior programmer and analyst at the Johns Hopkins University Press, even worked an XML shopping list into his presentation, Mr. Hussey said. “Bob is the only person who could make going grocery shopping with XML markup language funny.” (XML, or extensible markup language, is used to encode text so that it’s machine-readable; some publishers use it in preparing e-book files.)

E-book talk was everywhere. Still, as Suzanne Guiod, editorial director of the University of Rochester Press, pointed out in a conversation, digital publishing has by no means taken over all university-press operations. A smaller, traditional press like hers, which publishes about 23 titles a year, offers digital editions but hasn’t yet gotten into fancier projects such as e-books enhanced with multimedia features. “We’re not really feeling those kinds of pressures,” Ms. Guiod said. “I’m not sure yet how relevant these discussion are to a press like ours.”

Coming Together
Big or small, digitally driven or focused on traditional print publishing, presses collectively need to build on-campus relationships to cope with the economic pressures and cultural changes they’re confronting. The association’s new president, MaryKatherine Callaway, director of Louisiana State University Press, is making university relations the theme of her presidential year. During a lunchtime address, she said that presses had made “a historic misstep” by keeping their heads down and trying not to draw administrators’ attention. That strategy has too often left them isolated and vulnerable, said Ms. Callaway.

She argued that noble talk of mission isn’t enough anymore. “A lot of our universities don’t understand why we don’t ask for a little more profit and a little less mission,” Ms. Callaway said. She announced the formation of a committee on university relations that will be led by Garrett P. Kiely, director of the University of Chicago Press.

The emphasis on collaboration, inside and outside presses’ parent institutions, carries forward the conclusions in a report put together this year by another association panel. The report, “Sustaining Scholarly Publishing,” examines changing business models and partnerships—the e-book aggregation projects, for instance.

Holding On to Copyright
For all the focus on collaboration, though, the meeting also had a circle-the-wagons feeling at times, especially on the subject of protecting intellectual property. Nobody wanted to talk on the record about the legal case under way that has pitted three scholarly publishers against Georgia State University over its use of copyrighted material in e-reserves and on university Web sites. That case has been a reminder that publishers and libraries continue to have very different ideas about when and how much users ought to pay to use copyrighted material.

A “rah, rah, rights” tone was set the first evening of the conference, in a keynote speech by David Simon, a former journalist and the creator of the HBO television series The Wire (see related coverage). Mr. Simon gave the crowd a pep talk about the importance of doing something for its own sake, without regard for commercial reward. But creating that kind of work has to be supported somehow, he said, pointing to the decline of mainstream newspapers as an example he has lived through. That decline wasn’t the fault of the Internet, he said, but of newspaper owners devaluing their own product, gutting reporting operations, and giving away content.

“Intellectual property needs to be fought for,” Mr. Simon told the crowd in his hard-bitten reporter’s manner. “Copyright matters.” His listeners broke into applause.

A plenary session, “Back to the Future of Copyright,” emphasized the value of copyright. Marybeth Peters, the former U.S. registrar of copyrights, acknowledged how hard it has been to find solutions to the problem of copyright reform and orphan works, whose copyright holders can’t be identified or located. But Jon Baumgarten, a veteran intellectual-property lawyer, said he believed that “the basic objectives and premises of traditional copyright—to provide a viable, indeed vibrant environment for [intellectual] investments to flourish—remain valid.” He advised the press association to be vigilant. “Copyright is under constant attack today,” he said.

Pirated copies of their books have been a big concern for university presses lately. A session on “Is Piracy Good for Sales?” didn’t really answer the question raised by its title, but it made clear that presses take the possibility seriously. The moderator, Chicago’s Mr. Kiely, said concern about piracy had led his press to test out the services of Attributor, a company that tracks down pirate copies of clients’ copyrighted material and helps them get that material taken down. Lately the press has had about 250 takedowns a month, said Mr. Kiely.

Attributor’s services costs about what it would cost to hire a junior-level staffer for a year, Mr. Kiely said in a conversation later with The Chronicle. It’s hard to know just how many sales are being lost to piracy, though, and the Chicago press plans to do a six-month review soon to determine whether the cost of Attributor is worth it.

For all the talk of open access and how scholars want their material to be freely available, Mr. Kiely said he finds that his authors still generally don’t ask for open-access options and that they really dislike the idea of having their work pirated. One scholar who had edited a collection of essays, Geometry, Rigidity, and Group Actions, came across a pirated edition posted online before the contributors had even received their copies. The scholar spotted it and alerted the press. The market for that book is likely to be specialized and small, but “there’s a pride of ownership,” Mr. Kiely said.

Library Copyright Alliance releases statement on copyright reform

The Library Copyright Alliance (LCA) released a statement on May 16th describing the key features copyright reform proposals should include in order to constitute significant improvement over current law for libraries and their users.

Interested parties are discussing with renewed vigor the issues of orphan works, mass digitization, and even modernization of Section 108 of the U.S. Copyright Act in the wake of the Google Books settlement rejection by Judge Denny Chin of the Southern District of New York. The LCA statement, which represents the needs of library stakeholders in these debates, provides helpful guideposts for these discussions.

Libraries have always advocated for reasonable copyright policy – in the courts as well as in the U.S. Congress. Library activities already benefit from broad, flexible protection under the fair use doctrine and related provisions in current law. The LCA’s statement describes the status quo for libraries as well as the policies that would constitute substantial legislative improvement to existing copyright law.

University of Michigan’s MLibrary launches project to identify orphan works

The University of Michigan Library’s Copyright Office is launching the first serious effort to identify orphan works among the in-copyright holdings of the HathiTrust Digital Library, which is funding the project.

The vast majority of HathiTrust’s holdings are in-copyright (73%). An unknown percentage of these are so-called “orphans,” that is, in-copyright works whose owners cannot be identified or located. The lack of hard data on the number of orphans in the corpus is a significant impediment to the creation of a legal or policy-based framework that would allow scholars and researchers to access these works.

In a paper recently published by the Council on Library and Information Resources (CLIR), John Wilkin, Executive Director of HathiTrust, extrapolates from known statistics about the corpus, and speculates that the majority of works published since 1923 may in fact be orphans (“Bibliographic Indeterminacy and the Scale of Problems and Opportunities of ‘Rights’ in Digital Collection Building”; http://www.clir.org/pubs/ruminations/01wilkin/wilkin.html).

If that’s indeed the case, Wilkin says the implications for scholars and researchers, particularly those studying the 20th century, are enormous. The Copyright Office’s work to identify orphans will more precisely ascertain the scale of the problem Wilkin calls “bibliographic indeterminacy.” The project will also advance the efforts of an informal but growing group of libraries seeking to develop best practices for identifying orphans.

Melissa Levine, U-M Library’s lead copyright officer, says that the project will initially focus on 1923-1963 US works, specifically those determined to be in-copyright by the U-M’s Copyright Review Management System (CRMS). Among the more than 100,000 works thus far examined by the CRMS, which is funded by a grant from the Institute of Museum and Library Services (IMLS), 45% have been determined to be in copyright.

This first phase of the orphan works identification project will develop procedures that can eventually be used by other HathiTrust partner institutions to expedite a task that will ultimately require the hand-checking of millions of volumes.

“We’re also going to create a mechanism to publicize bibliographic information about the orphans, to give their ‘parents’ the opportunity to claim them,” says Levine. She hopes that all extant copyright holders will come forward, and make informed decisions about the status of their work in the HathiTrust Digital Library. But it’s highly likely that the majority of orphans are just that—without any surviving person or entity to claim ownership.

The Copyright Office is part of MPublishing, the primary academic publishing enterprise of the University of Michigan. It offers copyright information and assistance to the U-M community, and participates in the global conversation about copyright and libraries.

–MLibrary News Release, May 16, 2011

Trial Date Set for High-Stakes Copyright Case Involving Georgia State U.

On May 16, the trial phase is scheduled to begin in a copyright-infringement case brought by publishers against Georgia State University, involving faculty use of copyrighted material in their courses. Publishers Weekly reports that the judge supervising the case dismissed several claims brought by the publishers’ group but allowed one count to stand.

Although the recently derailed Google Books settlement has dominated the news, the Georgia case, Cambridge University Press et al. v. Patton et al., may have a profound effect on how much previously published material professors can safely use.

–Josh Fischman, Chronicle of Higher Education, March 31, 2011

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