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.”

Another Fair Use Victory in the Courts

The cause of fair use at academic libraries got a big boost on Wednesday, when a federal judge handed the HathiTrust Digital Library and its university partners (including the University of California) a resounding victory in a copyright-infringement lawsuit brought by the Authors Guild and other groups. In a summary judgment, the judge threw out the authors’ arguments that HathiTrust and its partners had trampled copyright law by preserving and making scanned works available for certain uses.

In his ruling, Judge Harold Baer Jr. of the U.S. District Court in Manhattan agreed with the HathiTrust defendants that their handling of the scanned works did not violate the law. “Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the provision of fair use,” he wrote. “I cannot imagine a definition of fair use that would not encompass the transformative uses made” by the defendants’ mass-digitization project.

Those uses include making copies for preservation and full-text searching and indexing. HathiTrust does not make copyrighted material openly available to the public. “The copies serve an entirely different purpose than the original works,” the judge wrote. He noted that HathiTrust’s search functions “have already given rise to new methods of academic inquiry such as text mining.”

“On every substantive issue, HathiTrust won,” said James Grimmelmann, a professor of law at New York Law School, in an analysis posted on his blog.

–Adapted from a story by Jennifer Howard in the Chronicle of Higher Education.

Publishers to Appeal Georgia State Decision

The publisher plaintiffs who accused Georgia State University of copyright infringement in a lawsuit over course e-reserves aren’t happy with the outcome of that case. On Monday they said they would appeal a federal judge’s decision, handed down in May, that was largely a win for the defendants.

In a statement, Cambridge University Press, Oxford University Press USA, and SAGE Publications said that the decision, by Judge Orinda D. Evans of the U.S. District Court in Atlanta, had left them “no alternative but to appeal, to protect our authors’ copyrights and advocate for a balanced and workable solution” to the challenge of accommodating both copyright and fair use.
–From The Chronicle of Higher Education, 9/11/2012.

ALA Group Issues Report on Fair Use for Videos in Libraries

The Fair Use and Video Project has posted online its document titled “Community Practices in the Fair Use of Video in Libraries.”  This project began as an attempt by the Video Roundtable (VRT), a group within the American Library Association (ALA), to establish a recommended body of practice in the fair use of video for educational purposes. A team of six librarians, with advice and guidance from ALA’s Office of Information Technology Policy, coordinated the process of gathering input from the media librarian community and created the final document. Over the course of the project, our aims shifted from suggesting best practices, which was leading us into a thicket of conflicting copyright interpretations, to documenting community practices, which allowed us to explore how librarians routinely and responsibly fulfill their mission to preserve and provide access to our cultural record.  The team conducted in-person interviews at national conferences and hosted a series of focus groups at locations across the country: Boston, Seattle, Evanston, Washington, D.C. and Richmond.  About eighty library staff members with varying responsibilities for buying, processing, and/or supporting the educational use of video were included in our surveys.

The report concludes that librarians are deeply respectful of fair use as a means to ensure the kind of access to valuable content that is appropriate to the classroom, library, and learning space of today’s university. Such is the pace of change in higher education that new technological breakthroughs, court cases, and revisions to the law will likely change the landscape, over and over again, for use of library content of every conceivable format. However, fair use is clearly the cornerstone of a philosophy of service based on the principle of unfettered access to the materials of research and scholarship. This philosophy will endure as long as libraries maintain a strong commitment to the real intention of the copyright law, to “promote the progress of science and the useful arts.” Without fair use, libraries would most assuredly have to sharply curtail their efforts to deliver the essential materials of scholarship in the form and manner appropriate for real academic inquiry.

The document has a place for comments in the box at the top right of the page.


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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.

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

Information on the New Digital Millennium Copyright Act Exemptions

On July 26th, the Library of Congress issued its triennial statement of exemptions to the portions of the Digital Millennium Copyright Act (DMCA) that forbid the circumvention of digital rights management (DRM) and other technological measures intended to prevent access to or copying of digital materials. Three years ago, the announced exemptions allowed film and media studies professors to crack the content scrambling system (a.k.a. CSS) on DVDs in order to rip short clips to make compilations for classroom use. This seemed at the time like an awfully restricted exemption — literally only film and media studies profs (no profs in other fields, and no students), literally only in order to create compilations of clips for use in the classroom (not for use in critical writing) — but it appeared then that the statement might be the thin end of the wedge.

And so it turns out to have been. The exemption on the cracking of CSS now extends to all college and university instructors, as well as students in film and media studies courses, and the permitted “educational uses” now include critical commentary and documentary production, as well as the exceptionally broad category of “non-commercial videos.”

Moreover, the newly announced exemptions eliminate claims of copyright violation as grounds for preventing jailbreaking and unlocking cell phones (though violation of a particular company’s Terms of Service may still be an issue), and they grant permission to those who circumvent protections on video games in order to test or study their potential security risks. Finally, the exemptions also permit circumventing DRM in order to activate the text-to-speech function of e-books for which the function has been disabled, as well as circumventing DRM in order to make e-books usable by “screen readers that render the text into a specialized format.”

In all of these cases, the exemptions come with the caveat that where there are other means of accomplishing the same thing (getting video clips; getting e-books with the audio component enabled), consumers must take the route that does not require circumventing DRM, but where there is no other way, the position seems to be that those who have legally purchased texts and objects protected by DRM have the right to break those systems for purposes that would otherwise fall under the category of fair use.

–Kathleen Fitzpatrick in the “ProfHacker” bloc at The Chronicle of Higher Education, July 27, 2010.

Center for Social Media Releases New Guide to Navigating Copyright Law

Communications scholars often fret over the legal nuances of using copyrighted material in their research, says Pat Aufderheide, a professor of communication at American University and director of its Center for Social Media. Ms. Aufderheide and Peter A. Jaszi, a law professor at American, hope to help researchers rest easy with a new guide to using copyrighted work—like political cartoons or screenshots from online games—in their studies. (See the guide at http://www.centerforsocialmedia.org/fair-use/related-materials/codes/code-best-practices-fair-use-scholarly-research-communication  ).
Because of the “fair use” provisions of copyright law, copyrighted work can be quoted if it is being used for a purpose different from its original intent, according to the report, which was vetted by a committee of lawyers.

The report, released today, gives communications scholars four types of research-related situations as examples: analyzing copyrighted material, quoting it to illustrate a point, using it to spark discussion, and storing it in a collection. The situations in the report were based on 387 responses to a survey of communications scholars conducted in collaboration with the International Communication Association.

The center’s guides establish what’s acceptable for a field and tell scholars how to apply the law to the cases they encounter, said Ms. Aufderheide.

The center plans to continue producing similar documents for other groups, like an association of research librarians, that want clearer guidelines on using copyrighted works, she added.

–Sophia Li, Chronicle of Higher Education, June 23, 2010.

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