Evolutions in Scholarship

Fair use infographic

Friday, August 23, 2013 3:19 pm

Do you love infographics? Do you love fair use? Do you love libraries? Then you’re going to love the new infographic from ARL, American University’s (AU) Washington College of Law, and AU’s School of Communication about the Code of Best Practices in Fair Use for Academic and Research Libraries. You can find the full-size PDF and 8.5×11″ PDF files here.

Busy week across the courts

Thursday, October 11, 2012 5:20 pm

It has been a busy – and exciting! – week in courts across the country, with important implications for libraries and fair use. Last Thursday, it was reported that Google and the Association of American Publishers (AAP) reached a settlement in their long-running case surrounding the Google Books project. Although the terms of the settlement have not been disclosed, we do know that publishers will have the option to opt-out of Google Books for out-of-print yet still in-copyright content, and the digital scans Google created will be removed. For those publishers who elect to stay in, Google will continue to provide 20% views via Google Books, sell full-text access via Google Play (with revenue sharing), and provide the publisher with a digital copy. On the whole, this changes things very little for users in practical terms – and does not end the class action lawsuit by authors still pending against Google – but ends one aspect of a 7 year lawsuit that libraries have been monitoring closely.

We also learned last week that for a second time, the lawsuit brought against UCLA for digital video streaming has been dismissed. Details are scant (and hat-tip to Kevin Smith for cluing me in, as I’d missed this until today), and the dismissal does not mean that what UCLA was doing was either fair use or covered by the licensing terms. Perhaps UCLA’s use is fair, perhaps it’s covered by licensing terms, perhaps the plaintiff did not have the rights to bring the suit in the first place. So like the Google settlement, little practically changes with this dismissal.

The big, fabulous, fist bump-worthy news for fair use and libraries came last night with the ruling that the Authors Guild’s lawsuit against HathiTrust has been dismissed on summary judgement by Judge Harold Baer. In 2011, the Authors Guild, two American authors, and several similar authors’ groups overseas filed suit against HathiTrust and several member institutions on the grounds that the in-copyright digitization that HathiTrust was coordinating, which enables new scholarship opportunities via searching and indexing and greater print-disabled patron access, exceeded the library-specific exceptions outlined in Section 108 of the Copyright Act. Furthermore, the plaintiffs claimed that because of the provisions outlined in Section 108, HathiTrust could not rely on fair use as provided in Section 107 to cover uses that fell beyond 108. Convoluted, no?

In a huge win for libraries, Judge Baer granted the defendants’ motion for summary judgement (MSJ). Nancy Sims provides an excellent explanation of the importance of an MSJ ruling, but the bottom line is that the judge felt that HathiTrust’s fair use defense was so air-tight, a trial was unnecessary as the outcome was a foregone conclusion. As Judge Baer wrote, “I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the [Americans with Disabilities Act]” (see pg. 22 of the ruling).

Fair use wins!!

As always, there are deeper nuances in Judge Baer’s ruling, including the role of transformativeness and the option for foreign authors’ groups to pursue a suit based on copyright law in their respective countries, and for more on those I point you to:


Decision in the Georgia State U. copyright lawsuit

Friday, May 18, 2012 6:25 pm

On Friday, May 11, 2012, nearly one year after hearing concluding arguments in the trial of the 2008 lawsuit brought against Georgia State University by three scholarly presses, Oxford U. Press, Cambridge U. Press and SAGE (funded by the Copyright Clearance Center and the Association of American Publishers), Judge Orinda Evans issued her opinion. As detailed in her 350 page analysis, the defendants clearly prevailed, with Judge Evans finding only 5 instances of infringement out of 99 (only 75 were actually submitted as evidence at trial), amounting to $750 in lost royalties. News is mostly good for libraries looking at this decision for guidance on their own e-reserves practices, although there are a few frustrations.

Fair use determinations came down to the third and fourth factors (amount used and market impact, respectively), as the first two factors favor libraries nearly every time. Under factor three, one of the frustrations is the use of a bright line rule for determining an appropriate amount: 10% of a text with 10 or fewer chapters, or up to 1 chapter of a text with 10+ chapters, assuming that neither amount is the “heart of the work.” This is less flexible than desired, but the silver lining is that Judge Evans rejected the publishers’ assertion that the 10% should only be factored from the text, excluding acknowledgements, introductions, indexes, etc; she followed GSU’s determination of 10% of the work in its entirety. Also, even if an excerpt exceeded 10%, the use may still be fair, depending on the fourth factor.

The fourth factor of fair use assesses market impact, or harm, and in instances where there is a readily available and reasonably priced license for digital excerpts, then the use cannot be fair. Although reasonably priced is not defined (another frustration), Judge Evans was explicit that the readily available license must specifically allow for digital excerpts; if publishers try to force a license for the whole work, then fair use remains a possibility. How publishers will respond with future licensing remains to be seen, but to some this is a victory for the Copyright Clearance Center, as they will have more leverage in enticing publishers to participate in CCC licensing options offered to academic libraries.

Two clear victories for libraries pertain to the third factor of fair use determination: 1) Judge Evans rejected the publishers’ claim that the 1976 Classroom Guidelines should define the maximum amount of allowable copying; and, 2) the court rejected the idea that using the same excerpt for more than one semester somehow makes the use no longer fair–Judge Evans called this “an impractical, unnecessary limitation.”

Below are links to news articles and commentary on the decision, and I especially call your attention to those that are asterisked **. To learn more about the GSU decision and implications for e-reserves at Wake Forest, join me for a discussion of the case on Tuesday, June 12 at 10am. Register at https://pdc.wfu.edu/event/4882/.

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