Copyright Librarian – Page 10 – Nancy Sims, Lawyerbrarian at large

Could it be that it’s all… NOT that simple?

Talked recently with a scholar who was planning to reproduce a number of his own articles in a small print run. He was pleased to hear from our national non-profit rights-clearance center that it was no problem, they’d absolutely be able to help him with all of this, and it would be a breeze for him! Yet somehow, when given the list of publications, even with much waiting, and nudging, and resending-of-the-list-of-publications… a response was not forthcoming.

Handwritten entry from Oliver Cromwell State Papers

Need permission to use this? SURE, we’d be HAPPY to get that for you! No problem! Reasonable price, too!
London defies ban on Xmas; entry from Oliver Cromwell state papers. No known © restrictions. From National Archives, UK

Could it – just possibly – be that it’s actually NOT always super-easy to contact some convenient clearinghouse and quickly and easily get permission to reuse works? Even when you are talking about your own works? Especially when your career spans more than 50 years of publishing, across several continents?

Could it be that copyright ownership is actually NOT that simple, and that a model of copyright that functions on the assumption that re-use should always require permission, because it’s always easy to get… well, could it be that that WOULDN’T ACTUALLY WORK VERY WELL A LOT OF THE TIME???? *cough* Georgia State *cough*

Maybe. But what do I know? It’s not like I see how this stuff causes problems on the ground in the real world or anything.

How does copyright make you feel?

I recorded this like two years ago, and then forgot I made it. Very smart of me.

In this short video I explore one source of a lot of copyright conflicts between individuals – what each of the individuals feels about the works they create.

I sincerely apologize for the lack of a transcript. I have no idea where the original files are, or even if I had a script I was working on. Will try to transcribe soon.

“How do you feel?” video CC BY-NC 3.0, Nancy Sims.

Registering ©

Unlike almost any other element of copyright law, there’s actually some straightforward information about how copyright registration works that could, in fact, enable you to make a pretty clear decision about your own course of action. Wild, I know!

Registration is how you “copyright” something, right?

NOPE. The use of the word “copyright” as a verb is outdated. Registration is unrelated to ownership of a copyright.

A human being capable of expressing herself in almost any way already owns copyrights. Copyright attaches automatically the minute a work is “fixed in any tangible medium of expression”, under U.S. law. Most other countries have similar laws in which a copyright comes into existence at the same time the copyrightable work does. (Whether a work is copyrightable (i.e., the kind of thing copyright applies to), and whether it is “fixed in a tangible medium” (i.e., recorded somewhere, even if fleetingly) are technical questions I’m not gonna get into here. Both are addressed in § 102 of the copyright code, for starters.)

Then why do people bother registering? What does it do?

Registration provides some important benefits:

First and foremost, registration is a prerequisite for any civil infringement suit – no one can sue someone else about a copyright without first registering that copyright. However, registration can take place at any time during the existence of the copyright – and can even take place after a copyright holder finds out about an infringing use.

Second, registering before any infringement takes place makes sure that certain legal remedies are available. Specifically, registering within three months after publication and before any infringement takes place means that statutory damages and attorney’s fees are on the table in a lawsuit. If registration happens later, those remedies are not available.

Attorney’s fees are pretty straightforward – the winner of a lawsuit can ask that the loser has to pay their legal fees. Statutory damages are a little more complicated – basically, the plaintiff doesn’t have to prove they lost any money (which is what damages usually mean) – they just have to prove that infringement took place, and they get a pre-set amount of money ($750 – $150,000 per infringing copy).

Finally, registering your copyright soon after publication creates a presumption both that the copyright is valid, and that the registered owner is the real owner. This isn’t usually a big issue, but the effect of a presumption in court is that anyone who wanted to argue that the copyright in fact belonged to them would have to prove that the registered owner was not the real owner.

That all sounds serious! I should register!

Well, registration does cost money ($35-$160 US.) And it isn’t required. And the creator absolutely owns the copyright automatically. And registration is almost only ever relevant to lawsuits about the copyrights. So some people do choose not to register – and many more simply don’t realize they can.

Even creators who don’t ever register still own their copyrights, and can distribute, license, or sell their work secure in the knowledge that they are legitimate copyright owners. As owners, if they discover doing something with their work that they believe is infringing, they can still send completely legitimate letters requesting that such uses be stopped. And if that doesn’t work, they can register after the fact.

Even owners who register after an infringement has occurred can still bring a lawsuit. In a lawsuit, they can still get “injunctive relief” and “actual damages”. That is, the court can order an infringer to stop what they are doing, or even to destroy all existing infringing copies. And the court can require the infringer to repay any actual monetary or business losses. These can include lost opportunities, but unlike with statutory damages, the copyright holder has to prove that they actually did have those losses.

Someone else says they’ll register my copyright for me…

A third party registering copyrights on behalf of creators might simply be doing a nice thing – providing a service. But if they’re charging for it, it might be something the creator can do herself for less money (it’s currently $35 to register your own copyright online.)

A third party offering to register copyright on behalf of a creator might also actually mean that they’re going to register it for themselves – if a creator transfers copyrights to someone else (such as a publisher) then that someone else will be the legit owner, and that someone else will be the one getting the benefits of the registration. If the creator wants to transfer her copyrights to the third party, fine; but if she’s transferring her copyright because she’s been told she’ll get some benefit from the registration as a result, that’s misleading.

If I register, do I have to give a copy to the Library of Congress?

Technically everyone who publishes anything in the U.S., registered or not, has to deposit two copies with the Library of Congress within three months after publication. Failure to deposit does not affect the existence of a copyright, but it does actually expose the copyright owner to the possibility of a fine! There are some exceptions for smaller print run publications and such.

So should I register my copyright, or not?

Every creator has different goals and intentions for their creations. There are few downsides to registering. Considering the benefits and costs of registration, and how those benefits and costs align with the creators’ goals, can help with the decisionmaking process. So can consulting your own lawyer.

Please do note that there are a couple more complicated wrinkles around registration (different benefits) for works protected under the Visual Artists Rights Act (primarily works of visual art that could be described as “fine art”) and broadcast transmissions.

There’s more info about the options available for registration (although it’s a bit out of date on the online options) and about how an enforcement lawsuit works, from the Stanford Copyright and Fair Use site.

Jail? For downloading too many articles???

On Tuesday, a lot of the conversation in my neck of the internet was about the arraignment of activist & open access advocate Aaron Swartz on federal charges of wire fraud and unauthorized network use. Most of the discussion was among the geeklaw aficionados, and I’ve been kind of surprised that the general library and higher ed crowds haven’t seemed to be following it that closely. The networks most deeply involved in the case are those of JSTOR, the not-for-profit service that hosts & archives hundreds and hundreds of scholarly journals.

And aside from the geeklaw-y librarians I know, what discussion I have seen from academics (and from a lot of nonacademic commentators) has been saying things like “they’re bringing criminal charges against a researcher for downloading too many articles???” “He was a legit user of JSTOR, this is ridiculous!” I do agree that the prospect of jail time for Swartz’ activities (especially when JSTOR itself had apparently considered the matter settled) seems like a massive overreaction on the part of the prosecutors. However, the charges in the indictment, and Swartz’s alleged criminal activities are NOT “downloading too many articles.”

Let’s get some stuff straight.

1. There are NO copyright charges involved.

United States copyright law is codified at Title 17 of the U.S. Code, and criminal copyright infringement is defined at 17 U.S.C. § 506. All of the charges in this case fall under Title 18 of the U.S. code – the federal criminal code – and the specific charges are around wire fraud (18 U.S.C. § 1343) and computer fraud (18 U.S.C. § 1030).

So fundamentally, Swartz is not being prosecuted for the downloading at all. He’s being prosecuted for accessing the MIT campus network far beyond the bounds of the fairly generous access they provide guest users, and for accessing JSTOR well beyond the bounds of their terms of use. If the facts the prosecution alleges are true (and we do not know that they are – charges and indictments are not proof of the activities alleged therein; “innocent until proven guilty” is not just an aphorism), then Swartz took some actions that clearly violated the terms of his legitimate access to JSTOR and to the MIT network.

Whether these kinds of actions should be grounds for criminal prosecution, especially when the organizations & institutions that run the networks in question have chosen not to bring civil suit, is a question around which there’s pretty serious debate. Similar charges were brought against Lori Drew, whose harassment and bullying of a young teen on MySpace was a major contributing factor to the teen’s eventual suicide. Prosecutors argued that Drew’s activities violated the MySpace terms of service, and that that alone constituted “unauthorized access” to MySpace, and thus was grounds for prosecution under the Computer Fraud and Abuse Act (the same law that is the basis of several of the charges against Swartz.) Ultimately, a federal judge overturned a jury guilty verdict, questioning the wisdom of allowing website terms of service – which can be defined at the whim of the site owner – to found the basis of criminal charges. Many legal scholars and commentators (full disclosure: I edited that last link) agreed that this was the correct legal outcome (although almost all expressed abhorrence at Drew’s actual activities.) This has not stopped subsequent prosecutions on similar theories – where violations of terms of service are used as the basis of computer fraud “unauthorized access” charges.

2. Campus subscriptions don’t actually confer unlimited access to databases!

Swartz’s initial access to the MIT network was totally legitimate – they offered guest user access to their networks and subscription library resources for up to 14 days. This is pretty generous – a lot of campuses offer much more limited network and subscription resource access to guests, partly because access for more potential users usually costs the campus more. But even his initial access, if the allegations are true, involved running an automated program to query the JSTOR databases and scrape content out of them.

Almost all library subscription agreements prohibit certain types of uses, and most libraries try to be pretty up front with their users about the limitations on their use of subscription resources. Unfortunately, the specific limitations vary across different databases and other subscription resources, and as with all terms of use, sometimes the prohibitions are hidden on pages users don’t usually see. JSTOR is better than most, in that it actually puts reminders of the limitations in very visible places that most users cannot help but see.

2a. Some of the limitations on use of subscription resources are kinda wacky, but the main one Swartz allegedly violated is pretty straightforward.

Most subscription resources, JSTOR included, prohibit even users with legitimate access from downloading whole issues of individual journals. This is a little wacky, because it’s pretty common for a journal to devote an entire issue to one topic, so it might be really relevant to someone’s research to download a whole issue, or even several whole issues. JSTOR’s policy is more generous than most, explicitly recognizing that sometimes “the entire contents of a journal issue[…] [may be relevant] to a particular research purpose” and allowing larger access under those circumstances.

Even more wackily, most library subscription resources prohibit anything other than “personal use”. As Barbara Fister ably outlined recently, defining what “personal use” is in the process of scholarship is a pretty tricky issue, and there are a lot of activities that a lot of faculty members regularly engage in that might violate these kinds of limitations on use. The height of wacky restrictions that subscription resources impose on legitimate users is probably the Harvard Business Review’s prohibition on linking to articles even from within password-protected campus networks.

But the usage limitation that Swartz is accused of violating is the one against systematic downloading of content using automated software. I just don’t see this limitation as all that wacky. An automated script querying and downloading from a server can impose a really heavy load on that server – spiking use much higher than even a large group of human users. This limitation seems to me like a pretty reasonable tool for service providers to manage and predict their network loads.

2b. “Scholarship shouldn’t be locked up in these ivory-tower, commercialized, locked-down, and restricted databases in the first place!”

Actually, I agree with you, at least on principle. (And, um, JSTOR’s non-profit…) But there are many, many structural factors that contribute to the ongoing set of problems of access to the products of scholarship. We are working on it (oh, wow, are we working!), but the cultural change, it goes slowly. And the fact remains that academic authors have for years been transferring their copyrights to publishers (non-profit and, increasingly, commercial) without much thought. So right now, the copyrights in these articles do, mostly, live in the hands of the publishers. And that’s most directly the result of the authors’ decisions (or lack of awareness that there were decisions to be made). I seriously question that large scale knowing copyright infringement is a completely necessary response, or that even as civil disobedience, such activities are going to accomplish much change.

I also question the allegation that Swartz did all this stuff with the intent to upload all the articles to filesharing sites. He may just have been doing it to see if he could. (Weirdly, he used the guest access at MIT even though he had full access to JSTOR at the time through his fellowship at Harvard.) I don’t know all that much about the guy, but he sounds pretty smart, and I’m fairly sure he would recognize the quite different legal and ethical implications of redistributing works under copyright versus redistributing limited-access public domain materials, as he did in some earlier projects. He really did work on an article doing textual analysis on a large body of scholarly articles, though it’s unclear whether those articles were obtained from the JSTOR scraping. (Although even if his intent really was just to analyze the articles, it’s also unclear whether making whole copies of massive numbers of texts for scholarly analysis without permission, even via unquestionably authorized access, is a fair use under copyright law.)

3. “It’s like he’s being prosecuted for checking out too many books!”

The copying he allegedly did is very little like checking out a large quantity of books (which, incidentally, is totally legit under copyright’s “first sale” doctrine (17 U.S.C. § 109), but may be limited by library policies.) It’s much more like photocopying large quantities of journal articles. And, as I said above, the copying is only tangentially related to the charges (in that that is how he allegedly violated the terms of service of JSTOR.)

Maybe a better comparison story would be this: someone goes to an open-to-the-public library, and starts taking lots of journals off the shelves and photocopying them. The library staff asks this Someone to stop, because he’s making it hard for the other patrons to use the journals, and because he’s copying in such volume that they have some copyright concerns (yeah, yeah, I don’t want libraries to be the copyright police. But the 17 U.S.C. § 108 limitations on libraries’ liability for patron copying don’t really protect libraries from known large-scale questionable use of their resources, and we’re talking some pretty darn large-scale photocopying.) Someone persists in the copying, so much so that the journals are all unusably out of order (JSTOR’s servers allegedly overloaded), the copiers break (MIT’s network allegedly got stressed), and the journal distributors even refuse to deliver new issues until the library does more to stop this Someone’s copying (JSTOR turned off service to the whole MIT campus for multiple days, eventually.) Nevertheless, this Someone still wants to copy, so he breaks in to the library at night to continue going about his business. And no one sues him for copyright infringement, and the distributors and the library let things drop when he finally knocks it off. But the prosecutors step in and bring charges against him for messing up the journals, breaking the copiers, and breaking in to the library.

In that story, it’s still kinda questionable whether criminal charges (and certainly, whether 35 years potential imprisonment) are appropriate. But I think it’s a lot clearer that Someone was doing some pretty questionable things. And maybe thinking about it that way, we can move past “Jail? For downloading too many articles???” and start figuring out what we as individuals and as an international community of scholars can do to open things up so similarly problematic access situations are unimaginable 50 years from now.

Walking the walk

Heard people talking on Twitter about Dorothea Salo‘s presentation “I own copyright, so I pwn you!”at the Special Libraries Association conference this week, and was sorry to miss it. Now that I’ve seen her slides, I’m even MORE sorry. I particularly liked her “LESSONS” slides, which bring up some of the concepts that I tried to put in the “Librarian’s Copyright Litany“, but more action-oriented and direct. Here they are, each followed by my commentary:

presentation slide: no more Nice Librarian

“No more Nice Librarian! When copyright holders act as enemies of all we value, we need to treat them as such.”

Librarians are not, generalizing broadly, the kind of people who embrace confrontation. But being “nice” has not really gotten us where we want to go, especially with regard to the increasing tensions between the library and publishing worlds.

While not every librarian needs to be an aggressive copyfighter; we do all need to be aware of the issues, and paying attention to who is on our side. It is not overblown to characterize recent actions (suing over course uses; attacking interlibrary loan) of some publishers as the actions of enemies.

presentation slide: We are not the copyright police

“We are not the copyright police! We must resist all attempts to turn us into enforcers.”

I see a lot of librarians who take action to protect the copyrights of corporate content providers by telling our patrons what they cannot do. While I do appreciate that some of my colleagues are worried about protecting their patrons from lawsuits, others with whom I’ve talked seem to feel a moral obligation to “protect” content from users. This seems to me to be getting the values of librarianship backwards.

time to put our benjamins where our mouths are

“Time to put our benjamins where our mouths are. Open access ain’t free. If we want it, time to pony up.”

Yes, with our ever-declining budgets, that means ceasing to buy some of the things we currently pay for. May I suggest starting with the ones that restrict our users’ rights to actually make use of them?

“We need to own our own stuff. If we don’t negotiate for what we write, who will do it for us?”

Librarians do not always do a bang-up job of providing access to our own content – even in the journals we run ourselves. We need to do better on that, including changing policies of journals we run, retaining our rights as authors when we publish elsewhere, and we need to actually follow through and post our stuff in permanent locations online.

Actually, I need to do that. I cc-licensed the paper I presented at the ACRL conference, but I have not uploaded it to our institutional repository yet. Bad CopyrightLibrarian! Time to do better!

Please note: images and textual quotations in this post are courtesy of Dorothea Salo, used under a Creative Commons Attribution license. No, I did not ask her if I could use them. That would be disrespectful and a waste of both our time.
My blog writing is, as always, available under a Creative Commons Attribution-Noncommercial license.

Comment approval from now on, sorry!

The spam-bots have gotten too active on this blog, and too clever at “sounding” like actual people. Unfortunately, that means I’m going to have to turn on comment moderation. All are still very much welcome to comment, but only comments associated with a University of Minnesota user ID will appear immediately. All others will have to await approval by me.

Georgia State update

state map of Georgia with copyright symbol superimposed

Trial in the Georgia State case wrapped on Tuesday, but don’t expect a ruling until quite a bit later in the summer. It’s looking less and less likely that the “nightmare scenario” (see my own post, and Kevin Smith’s) will come to pass (at least in the short run), since the contributory liability claims have been more or less dismissed.

The simple fact that academic publishers were willing to request the injunction that they did, however, should remain a source of serious concern. Peggy Hoon recently said:

“this proposed injunction is so onerous, so intrusive, so far-reaching, and so incompatible with the reality of teaching and learning in the 21st century,
that simply widely publicizing the existence of and contents of the
proposed injunction may well achieve what the library community has been
trying to do for the last twenty years.

**WAKE UP THE FACULTY AND MOBILIZE THEM TO RECLAIM CONTROL
OF THEIR OWN WORKS OF AUTHORSHIP AND THEIR OWN SYSTEM OF SCHOLARLY COMMUNICATION.**”

And Paul Courant recently used the requested injunction to illustrate a point about the differences between adversaries, and enemies.

“What the plaintiffs are saying is that they are quite willing impose enormous costs on academic performance and academic freedom in exchange for higher profits. This is not the request of a friendly adversary; this is the attack of an enemy.”

In the last couple of weeks, in my own interactions with faculty members, I’ve seen several individuals who were otherwise uninterested in copyright issues get fairly hot-headed once the terms of the requested injunction were described. However the legal case may play out (including in the no-doubt-lengthy appeals process), the publishers may have made some serious missteps along the way.

How I Talk About Fair Use – Intro & “Breathing Space”

When & why I Talk About Fair Use

“How do we/I know what we/I can and cannot do with other people’s stuff?” is one of the primary things I’m asked to talk about in trainings and other outreach and education efforts. Often, what people think they really want to know is “What is and isn’t fair use?” They also often ask me to address this (and quite frequently other copyright concepts as well) in less than an hour.

The details of fair use are pretty… detailed – and there really are no exact boundaries that you can point to! In my experience, to do anything other than scare people away from ever reusing any copyright-protected materials again, I need at least an hour (preferably more) to address all those details, and a bunch of other concepts besides. The workshops I lead here on campus for faculty members are usually scheduled for two hours, often run over, and I quite frequently get feedback suggesting that they be longer. (I don’t make them longer, because how many faculty members do you know who would voluntarily sign up for a three hour workshop in anything?)

So how to productively discuss fair use in 30 minutes? 15? 10? Rather than trying to talk about the details in high-level, glossed over detail, I try instead to talk about fair use as a concept, and about why it’s important to scholarship, culture, and even our daily communications with each other! In the next few posts, I’ll feature some of the slides and images I use in my talks, along with brief examples of how I talk about them.

Breathing Space

A number of court opinions make reference to fair use as “breathing space” in copyright law. Talking about fair use as breathing space is a good way to introduce some of the more complex issues (flexibility/uncertainty, and 1st amendment concerns) discussed below. But it’s also a good overall summary of the doctrine, and one that makes sense for a lot of people on a gut level. I usually illustrate the “breathing space” concept with this image by Stéfan.

Stéfan’s photo is called “This is not the droid we’re looking for” and is available under a Creative Commons Attribution-NonCommercial-ShareAlike license.
(My blog is not SA-licensed, so I am not in full compliance with Stéfan’s license. I apologize, but also think my use of the photo could be a fair use.)

This image is a good teaching tool for a number of reasons. First, it’s funny and pop-cultural, which is almost always a good thing. (It’s also an opportunity to bond with the Star Wars fans in the audience over an in-joke – so far, I’ve never not had at least one person in the audience who gets it.) Second, it’s a well-executed photo, technically and conceptually – it’s just an appealing image.

But most importantly for my purposes, it provides great opportunities to talk about how fair use exists in large part to deal with new and unanticipated uses, and to provide an outlet for commentary and cultural dialogue. There’s a lot going on in this image – it’s a silly joke, using characters from very popular movies – but it’s also a witty juxtaposition of the two movies. And is there also an element of commentary on a totalitarian regime brutally oppressing a disenfranchised and abandoned manual worker? It also provides an opportunity to briefly address some elements of each of the fair use factors: is there market harm? To movie sales/licensing? To action figure sales? How “much” of the movies are being used? How central are those pieces used to the original work? And so on, and so on.

Sometimes I also use videos (usually short pieces thereof) from the inimitable PS 22 Chorus to illustrate the “breathing space” concept.

The copyright issues raised by their videos are quite densely layered, so more often we will view part of one of their videos to spark a general discussion about what kinds of uses should be tolerated in terms of cultural dialogue and participation. There are way too many great videos from the Chorus to choose just one – this one is my current favorite.

Why non-academics should be following the Georgia State U case

This post will be cross-posted at TechDirt at some point. Supposedly. Update, 6/9/11 – has been posted

Update, 6/9/11: Check out the latest on the GSU case.

Trial is currently under way in a copyright suit against Georgia State University brought by a number of academic publishers (and funded by an interesting additional party). We won’t know the outcome of the trial for a while, and the losing party (whoever it ends up being) will almost certainly appeal the district court’s decision, so the case hasn’t attracted much attention outside of academic spheres. But it has the potential to set some far-reaching precedents on fair use, and anyone interesting in copyright and tech policy should be following.

Mimeo BY-NC-ND Elizabeth Beers

The publisher-plaintiffs are suing over the way instructors (and possibly others on campus) share course readings like academic articles and excerpts from academic books. They are objecting both to readings posted on course websites (i.e., uploaded by instructors and accessible only to students registered for a course) and readings shared via “e-reserves” (i.e., shared online through university libraries, usually also with access restricted to students registered for the course). The publishers claim that sharing copies of readings with students is not usually a fair use, that faculty can’t really be trusted to make their own calls about what is or is not fair use, and that permissions fees should be paid for most of these uses.

Without going into the details of the draconian injunction the publishers have requested if they prevail, the baseline claim of the lawsuit – that few of these uses are fair uses – is a pretty extreme one. The publisher-plaintiffs are emphasizing that online sharing of readings is equivalent to paper photocopied coursepacks, because lawsuits in the 1990s established that it’s not fair use when commercial copy shops sell paper coursepacks for profit. Suddenly the copy shops (which had been providing the coursepacks for just over reproduction costs) had to clear licensing for each article or chapter included. (Fun party trick: to identify which individuals in a room full of academics were students later than 1996; simply ask them whether their coursepacks were affordable, or expensive. Additional fun: watch the expressions on the faces of pre-1996 students when you tell them how much coursepacks currently cost students – as much as $500 per pack!) Incidentally, the Copyright Clearance Center, the ostensibly non-profit organization that facilitates paying for those permissions, although not a party to the Georgia State suit, is underwriting the publisher-plaintiffs’ litigation fees.

But the “coursepack cases” were all focused on copying at commercial copy shops. None of the currently-contested uses are for-profit. The only market harm is that the publishers are willing to license every use, but the academic community is not taking them up on this offer. (Much of the content shared in course websites has even already been purchased once for campus use as licensed library resources – although most of the licenses are only for access through the publisher website. E-reserve materials are less likely to be materials for which the library already has subscription access – they’re more likely to be unique or one-off materials.) While the fair use statute does say that harm to “potential markets” is relevant to a fair use determination, a ruling against fair use at Georgia State would do a lot to establish that any time a copyright holder is willing to sell a license, not taking them up on it is inherently infringement.

Ditto Machine BY-NC-ND Jenny Addison

It is also helpful for the plaintiffs to focus on coursepacks because in those cases, copy shops were held responsible for the decisions instructors made about what readings to copy for their students. In the Georgia State case, the plaintiffs are arguing not just that most course reading uses are not fair uses, but that the University should be responsible for individual instructors’ decisions on fair use. Certainly, individual instructors may make bad decisions about fair use sometimes, but the publishers don’t want to deal with the inefficiency and negative PR that would accompany suing individual instructors. Trying to have the institution held liable makes for a very efficient lawsuit, and if the tactic succeeds, will force the institution to develop a single policy on use of course materials – vitiating the flexibility and case-by-case determination that fair use is supposed to provide far more rapidly than suits against individuals would.

However much the plaintiffs would like it to be so, paper coursepacks are not the only relevant comparison. For example “e-reserves” are very similar to more traditional “course reserves”, where a physical copy of an item is held “on reserve” at the library and individual students can check it out for short periods of time. Most students check out reserve materials just long enough to photocopy or scan the readings for their own use – and many would accept that those personal copies are legitimate fair uses. Sharing articles on course websites is very similar to an instructor handing out paper copies in class – again, a practice many would consider to be a fair use. Even the existing precedents against some uses of research articles admit that making personal copies of articles for research is often a fair use.

“We do not deal with the question of copying by an individual, for personal use in research or otherwise (not for resale), recognizing that under the fair use doctrine or the de minimis doctrine, such a practice by an individual might well not constitute an infringement.” (American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2nd Cir. 1994).)

Finally, the copyright statute explicitly includes “multiple copies for classroom use” as an example of a fair use. Certainly it is possible that some of the e-reserves and course website uses that instructors undertake trespass outside the bounds of fair use. But no institution can police use decisions on the part of all its participants at the level of responsibility this suit seeks to impose without creating policies that wipe out any contextual sensitivity or flexibility in what is supposed to be copyright’s “breathing space”. Additionally, because copies for classroom use are an archetypical fair use, if the publisher-plaintiffs prevail in this suit, it undermines fair use claims in all of the other areas explicitly listed in the statute (including “criticism, comment, news reporting, […] scholarship, or research”) – much less those not enumerated specifically as examples of fair uses. This obscure academic fair use lawsuit has the potential for broad impact on us all.

There is a wide range of incredibly well-articulated perspectives on the case at the Chronicle of Higher Education.