I’m in Dallas right now attending the Midwinter meeting of the American Library Association; at last night’s SPARC-ACRL Forum, Lisa Macklin (Emory) gave a fascinating update on the copyright lawsuit against Georgia State University over their electronic reserve service. A decision is expected any day now, so this may be a good time to (re-)read a few summaries/reflections. Highly recommended are Kevin Smith’s post from August 2011 (Scholarly Communications @ Duke), and Peggy Hoon from June 2011 (Collectanea).

Much more has been written by better informed and more knowledgeable people, including Kevin and Peggy, but hearing Lisa also reminded me I’ve been meaning to rescue some of our old blog posts, and re-post a few timely things from its archives, starting with one I wrote about the Georgia State case. Up until last year, NUL had a Copyright & Scholarly Communication blog on the Movable Type platform, but it didn’t survive the migration of our web site September 2010. A lot of the posts were merely pointers to breaking news items, so we decided we would manually migrate the more substantial postings once we were up and running on our new blog platform. So here we are, and copied below is the post I wrote in April 2008, shortly after the lawsuit was filed. Even though I was sorely tempted (this is NOT great literature here), I didn’t edit/update/tweak the post at all, and that means it’s possible some of the info is out of date, inaccurate, or that links are broken here and there.

Not to get too meta, but this also reminds me how pervasive digital archiving problems can be, and how far we have to go before we are in a good place with easy access to migration tools and before digital archiving is an unconscious activity. (And on that note, have a look at the AIMS Born-Digital Collections project’s final white paper, just released last week.) [Note, updated 1/22/2012, 3:29PM CST: if you’re  interested, the Internet Archive crawled the old blog at the end of July, 2010 ]

AUTHOR: mcdough
TITLE: What does the lawsuit against Georgia State mean?
STATUS: Publish
CONVERT BREAKS: __default__
CATEGORY: Litigation

DATE: 04/20/2008 03:09:43 PM
As reported in a previous post, three publishers filed suit against Georgia State University last week, alleging flagrant violation of their copyrights by posting and allowing faculty to post course reading material online.
A press release and the text (pdf) of the complaint are available from the American Association of Publishers web site. The suit seeks injunctive relief, rather than monetary damages, from the University.

The copyshop cases
The complaint argues that:

“Georgia State’s ongoing unauthorized digital distribution of Plaintiff’s copyrighted materials is directly substituting both for student purchases of copyrighted books and for paper ‘coursepacks’ or ‘copy packs’ — collections of course-related readings assigned by professors and purchased by students, the copying of which occurs pursuant to licenses obtained by bookstores and copy shops according to long-settled copyright law.”

The publishers then cite previous digital coursepack cases Basic Books v Kinko’s and Princeton University Press v Michigan Document Services as precedent for their claim that copied course material must be licensed. One major difference between this case and the copyshop cases is that the readings are being provided by the GSU library through an online electronic reserve service, and not by a for-profit bookstore or copy center. “Coursepacks” are a red herring; the form of the readings is less relevant than who’s providing copies. The Kinko’s decision highlights this:

“The use of the Kinko’s packets, in the hands of the students, was no doubt educational. However, the use in the hands of Kinko’s employees is commercial. Kinko’s claims that its copying was educational and, therefore, qualifies as a fair use. Kinko’s fails to persuade us of this distinction. Kinko’s has not disputed that it receives a profit component from the revenue it collects for its anthologies. The amount of that profit is unclear; however, we need only find that Kinko’s had the intention of making profits. … The extent of its insistence that theirs are educational concerns and not profitmaking ones boggles the mind.”

Without the “Requisite license”
At several points in the complaint, the publishers indicate that Georgia State has provided access to copies of excerpted materials without paying a license. In a section titled “The Longstanding Permissions Market for Paper Coursepacks and Distribution of Electronic Copies” they claim that because efficient, economic and accessible methods exist for electronic licensing, the University is infringing by not paying for them. This argument is consistent with the so-called “market failure” theory. A market failure theory of fair use concludes that fair use cannot exist unless the marketplace has failed to make an accommodation for the taking; in other words, to provide a simple mechanism for paying reasonable fees for the use. As described at length in the suit, the Copyright Clearance Center offers such a paid permissions mechanism. (Of course it is possible to pay permission fees for ALL reserve uses, and to advance no fair use argument for any such copying, no matter how limited. It is interesting that the publishers are not at all specific about their threshholds for acceptable use, leaving us to wonder whether they would consider any reserve use fair).

In her 1997 article “Redefining the Market Failure Approach to Fair Use in an Era of Copyright Permission Systems,” Lydia Pallas Loren offers this view of the market failure theory for fair use:

“A permission system only remedies the market failure that occurs because of high transaction costs. A permission system does nothing to cure the kind of market failure that is more central to the purpose of fair use and the constitutional purpose of copyright: the market failure that occurs when there are significant external benefits associated with a particular use that cannot be internalized in any bargained-for exchange. “

The market theory approach uses a calculus that fails to account for the significant benefits to society likely to accumulate when each use is not specifically monetized. Copyright does not exist merely to ensure that any money that can be got IS got. Copyright exists to promote societally valuable uses of original works, to disseminate knowledge and encourage the creation of new knowledge. Profit making is only secondary. Where profit encourages authorship and new knowledge, it is consistent with the fundamental goals of copyright. Where it conflicts, the law creates allowances for use without permission.

An equitable rule of reason
The general model for library collections is this: the institution purchases the work, then takes a number of approaches to providing access. In the case of a solitary scholar, the circulating collection or an online database subscription is likely to be sufficient to guarantee access when the work is needed. Problems arise when multiple scholars need the same work in a small window of time, as when a teacher builds a course around a set of material that her class reads together, analyzes, discusses, and synthesizes. Reserve services are primarily solutions to short-term logistical problems with access.

Almost by definition a worthwhile university-level course uses works by multiple authors speaking from different perspectives. Those of us who’ve made course material available online nod patiently at the few profs who bring in lists of 30 and 40 and 50 items for an 11 week course, knowing there is little chance that every student will read or see or watch every one of them. But what if they do? If that class of 20 students absorbs all 50, and their discussions are deep and meaningful and their papers are stronger, and they move on to their next course and their next quarter and their first job after graduation with a better grasp of the concepts, hasn’t the purpose of the copyright law, “to advance the progress of science and the useful arts” been fulfilled? And maybe more effectively than the class that had to restrict itself to 5 to avoid running afoul of the copying limitations, that perhaps didn’t have a chance to include some of the less mainstream voices?

Fair use is often called an “equitable rule of reason.” We know, instinctively, that it is not fair for users to make copies of audio CDs from the library’s collection and sell them online with no compensation to the artists. But do we know that 20 assigned reserve readings is a fair number, while 25 is not? If the minimum everyone can agree to is 10%, is it always true that 15% can’t be fair? In their complaint the publishers claim the GSU copyright policy and the ereserves policy are impermissibly broad, noting that copying up to 20% of a work is allowed under the GSU ereserves policy. They further claim that very large numbers of course readings (specifically citing classes with 80, 72 and 34 readings) are “in direct contravention of governing precedent.” What is the larger picture? What kind of an actor is the library? Are they seeking to deprive academic publishers of revenue? In the case of Georgia State, 19,711 new volumes were added to the library collections in 2006-2007 (source: Annual reports). According to the GIL online catalog, the collection includes some 6,100 titles published by SAGE, and well over 10,000 each by the Oxford and Cambridge University Presses (publisher name searches are truncated at 10,000).

Who are these authors?
As others have been pointing out in recent days (see, esp. Kevin Smith’s post at Duke), most of the book chapters cited in the complaint were authored by people with current or recent affiliation with an institution of higher education. Here’s a partial list of authors and their institutions, as best I can determine:

Handbook of Qualitative Research & The SAGE Handbook of Qualitative Research: Yvonna S. Lincoln (Texas A&M), Egon G. Guba (Indiana University, retired), Robert Stake (University of Illinois), Andrea Fontana (University of Nevada Las Vegas), James H Frey (University of Nevada Las Vegas). Norman Denzin (University of Illinois), Russell Bishop (University of Waikato), Kenneth Plummer (University of Essex), Susan Chase (University of Tulsa)

Changing the System: Political Advocacy for Disadvantaged Groups:Milan J. Dluhy (University of North Carolina Wilmington)

Feminist Media Studies: Liesbet van Zoonen (University of Amsterdam)

Democracy without competition in Japan*: Ethan Scheiner (University of California Davis)

The Cambridge Companion to the Organ: Patrick Russill (Royal Academy of Music, London), Geoffrey Webber (Gonville & Caius College, Cambridge)

The Cambridge Companion to Handel: Graydon Beeks (Pomona College)

Materials Development in Language Teaching: Brian Tomlinson (Leeds Metropolitan University)

States and Social Revolutions: Theda Skocpol (Harvard University)

Focus on the Language Classroom: Richard Allwright (Lancaster University) and Kathleen Bailey (Anaheim University)

Legislative Leviathan*: Gary Cox (University of California San Diego) and Mathew McCubbins (University of California San Diego)

White Supremacy: A Comparative Study of American and South African History*: George M. Frederickson (Stanford University, emeritus)

Science of Coercion: Communication Research and Psychological Warfare*: Christopher Simpson (American University)

The Slave Community: Plantation Life in the Antebellum South: John Blassingame (Yale University, deceased)

Awakening Children’s Minds: Laura Berk (Illinois State, emeritus)

(* as far as I can tell, these authors retain their copyrights)

The current climate
The Association of American Publishers, who are not named as plaintiffs but host both the complaint and press release on their site, is in the middle of a number of major copyright dialogs where the interests of publishers and the interests of libraries intersect. The first is the suit for copyright infringement brought by the AAP against Google, in which it argues that Google’s massive book digitization project infringes the copyrights of its members, and is not, as Google claims, a permissible fair use. [Disclaimer: Northwestern, through the CIC, is participating in the Google project] The second is the work of the Section 108 Study Group, whose final report and recommendations were released earlier this month. AAP participated actively in roundtables and public comment about possible changes to section 108 (exemptions for libraries and archives) and the position that licenses ought to be required for non-authorized uses is clear throughout the AAP’s contributions. In the accelerating discussions about Open Access publishing, the AAP’s members are often at odds with libraries and universities, speaking out against such measures as the National Institutes of Health’s recently-adopted Open Access mandate. The GSU lawsuit brings to the public forum a glaring example of publishers not only selling packaged versions of university-supported scholarship back to the university market, but attempting, in addition, to enforce fees for use in individual classes.

What will happen?
There are a number of possible outcomes in this case. Settlement is possible. The complaint itself is somewhat vague in its details; while specific examples are provided for some of the allegedly infringing uses, the publishers provide no specific details or examples of professors linking to course material from their open web pages, or any information about specifically infringing behaviors within the course management system. Although it claims the copying is in excess of what is permitted as fair use, the publishers do not offer a specific discussion of what it considers to be the bounds of fair use, nor does it adequately define course packs, nor offer any interpretation of the cited cases against copy shops, other than to broadly claim that they act as guiding precedence. As Andrew Albanese writes in Library Journal (Down with E-Reserves), GSU is not the first university to go up against the AAP or its members for reserves, and is not likely to be the last.

Association of American Publishers. “Publishers Take Action Against Georgia State University Copyright Infringement.” 16 Apr 2008. http://www.publishers.org/main/PressCenter/GeorgiaStateLawsuitRelease.htm.

Cambridge University Press et al v Carl V. Patton et al (GSU).

Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991). http://fairuse.stanford.edu/primary_materials/cases/c758FSupp1522.html.

Stanford University Libraries. “Michigan Document Services Case & Coursepacks.” http://fairuse.stanford.edu/primary_materials/cases/michigan_document_services/index.html.

Loren, Lydia Pallas. “Redefining the Market Failure Approach to Fair Use in an Era of Copyright Permission Systems.” Journal of Intellectual Property Law 5.1 (1997). http://www.lclark.edu/~loren/articles/fairuse.htm.

Smith, Kevin. “Trying to sue State U.” Scholarly Communications @ Duke 16 Apr 2008. http://library.duke.edu/blogs/scholcomm/2008/04/16/sue-state-u/.

“Georgia State University Library Annual Reports.” http://www.library.gsu.edu/about/pages.asp?ldID=68&guideID=282&ID=3115.

These comments are only the opinion of the author, and do not represent the views of Northwestern University or its Trustees.

Reminder: this is a post originally published April 20, 2008