Copyright Librarian – Page 4 – Nancy Sims, Lawyerbrarian at large

Critiquing structural inequality? Incriminatingly few copyright issues.

I’ve seen some interesting videos circulating on Tumblr recently, “Every Single Word Spoken By A Character of Color in…” Their creator, actor Dylan Marron has now set up a standalone Tumblr for them: everysinglewordspoken.tumblr.com. These videos copy source content, so of course they raise some copyright issues. They’re transforming and commenting on the original work, so there’s a fair use argument to be made for them even if they were longer. But for the most part, these movies grant so little screen time to speaking characters of color, that the copyright issues are negligible.

The Fault In Our Stars has one speaking character of color; hence the video is 47 seconds long. Even if the transformative use argument was weaker, that’s a -tiny- fraction of the full running time of the movie. The second fair use factor, “amount and substantiality of the portion used”, would -definitely- weigh in favor of fair use.

Better (Worse!) yet, Into The Woods has (after the few seconds of title intro), zero speaking/singing characters of color. While a doctrine often neglected in copyright cases, this might be -so little copying- as to be a “de minimis” use (i.e. noninfringing solely because of the negligibility of the use.)

It’s sadly hilarious, and also a really damning illustration of the unreality of Hollywood casting, that these videos raise so little in the way of copyright issues.

(If this sounds familiar, it may be because I tweeted about this a bit last week.)b

GET IT IN WRITING: On Elsevier’s Revised Sharing/Hosting Policies

Elsevier, a major academic publisher, announced new policies yesterday articulating how they are comfortable with authors sharing their articles online.

A number of other folks have already reviewed these policy documents, though few have offered a full commentary or interpretation (perhaps because there are just so many moving pieces here.) I found the commentary from Steven Harnad (comparing to Elsevier’s first sharing policy, from 2004) particularly useful. There seem to be a couple of positive changes in the policy, but mostly it’s not a huge change from things in the past, and certainly not an improvement. I can’t muster the attention needed to try to read and fully parse this level of complexity, so instead I thought I’d offer just the following two observations.

An Object Lesson For Authors

This is at least the third version of Elsevier’s article-sharing policy in the last 10ish years. I also know of other publishers who have similar policies that have also changed over time. These policies let Elsevier, and other publishers with similar approaches, obscure the fact that they require authors to give them the
copyright in these works; i.e., that authors no longer own these
works.

There are a lot of reasons why publishers need to have some of the rights in the work. There are also a lot of reasons (administrative-overhead-wise) why publishers don’t really want to negotiate different rights agreements for each individual article. But there are few reasons other than profit why publishers need -exclusive- ownership of rights. It would be pretty easy to administrate a publication agreement with standardized non-exclusive (that is, shared) rights. Lots of publishers do so already! And publication agreements, copyright agreements, transfer statements, whatever you may call them – those are -contracts-. They can’t be altered after the fact except by agreement of the parties, unlike unilaterally-granted “sharing policies”, which can be altered (or repealed) whenever, by the unilat that granted them.

Many authors have suggested to me in consultations that they can’t possibly negotiate with a publisher, they just don’t have that power. But however much any given academic needs a publication credit, the publisher needs your content! There are lots of factors that dictate how much any individual can or should negotiate about a publication agreement – but not having anything the publisher wants is not one of them.

If there’s anything you want to be sure you can do with your content in the future, for goodness’ sakes get it in your contract.

Why these changes, now?

My guess is that the latest policy revision is an attempt to address
criticisms of the immediately-previous version of Elsevier’s sharing
policy, which allowed authors to archive their final edited manuscript
in an institutional repository but only if their institution did not have a policy requiring authors to do that. That was… okay, really, just weird.*

I
think this policy is also intended to address the proliferation of
article-sharing by authors via for-profit “academic social networking”
sites like Academia.edu and ResearchGate. One piece of supporting
evidence is that Elsevier is now requiring
that certain shared copies bear a Creative Commons license that contains a
Non-Commercial clause, limiting their usefulness for for-profit
enterprises. The fact that the license also contains -other- limitations
(BY-NC-ND is what they’re requiring) that few non-profit archives would
really want to support is perhaps just icing on the cake.

I
actually have a lot of sympathy for publishers’ frustration with the
sharing that goes on on those sites; those sites are competitors for the
for-profit publishers, just as much as we non-profit archives are. They
are also more appealing and easier to use than many of our open
non-profit repositories – for a variety of reasons, including that they do fewer annoying things like making authors really check whether they have a right to share. So
we have less content than the social networking sites, even though
we’ve been at it longer, and even though we are not intending to monetize our users’ data or research networks or anything like that. Personal
frustrations aside, though, authors who want to share articles are going to do
so on whatever platforms are most appealing to them.

So I think the
new “Hosting Policy” is also part of the attempt to address sharing on
for-profit sites. Trying to set a policy that affects the behavior of
entities with whom you are not in any kind of contractual relationship
is… kinda weird. I am pretty darn confused how this hosting policy is
intended to interact with the policy on author sharing. If an author
thinks they can share, they are legally allowed to do so, and hosts are
legally allowed to accept shared copies. That’s even true of the
for-profits; we just all have to take them down if it turns out the
author was wrong. With this new hosting policy, Elsevier seems to be
trying to insert another note of uncertainty, at the very least.

In
addition to criticisms of older versions of their sharing policy, and a
reaction to newer players in the article-hosting arena, I think this
revised policy – and the spin that it enables more sharing –
reflects growing traction for open access principles in the academic
world, and more public focus on related issues. I hope.

*This may not be an exactly accurate characterization of that version of the policy. I have never actually been able to explain it in a way that makes sense to any of the authors who have consulted with me, so…

A point of certainty in fair use

Fair use exists in order to provide some flexibility in enabling uses that we believe are socially valuable enough they shouldn’t require permission and/or payment. But because of that flexibility, fair use is often presented as a dangerously unpredictable piece of the law. Although I avoid that framing, even I frequently use jello as a conceptual analogy for fair use.

Teaching is definitely a socially valuable activity, but in my experience, K-12 teachers are often particularly uncomfortable with the flexibility/uncertainty of fair use (for a variety of reasons), and quiet a few literally never copy anything for their students without permission.

One thing I am absolutely certain of about fair use, is that it definitely allows teachers to copy things for their students without permission sometimes. The law specifically says so:

“[T]he fair use of a copyrighted work […] for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright” – 17 U.S.C. § 107

Lemme just repeat that.

“[T]he fair use of a copyrighted work […] for purposes such as […] teaching (including multiple copies for classroom use) […] is not an infringement of copyright.” – 17 U.S.C. § 107

I don’t blame teachers for feeling a bit unsure about fair use. Many informational materials about fair use for teachers are aimed at risk-avoidance, and a few actually intentionally sow confusion. Even when well-informed, teachers do not always have reason to believe their school systems will be supportive of fair use in classrooms.

I do encourage teachers to question any assumptions they have that they always need permission: fair use definitely applies to classroom teaching, although not all copying for classroom teaching is going to be fair use. I also encourage teachers to raise these issues for discussion in their schools, districts, and professional organizations.

I also give a serious side-eye to people who train, support, or provide information for teachers about copyright, and undercut fair use and tell teachers they cannot or should not ever rely on it. If you’re doing that on purpose, you should be ashamed. The fair use statute specifically calls out copying for classroom use from a list of other socially valuable uses. That’s not a drafting error.

(Also, don’t forget 17 USC § 110(1)!)

(Source)

Teacher advises group of teen students working on calculations together - captioned Fair Use Hearts Teachers

(Source)

Your lawyer works for you.

There are plenty of words that lawyers use frequently that are not part of normal people’s conversation. One that lawyers use a lot, but non-lawyers may not have -heard- us use, is “zealous.” It’s an ideal of the profession to provide “zealous advocacy” for clients, and in fact it is an active obligation of lawyers under professional rules in most US states. (ABA Model Rules of Professional Conduct.)

The positive side of this ideal and obligation are that really, good lawyers -do- do everything in their power to represent their clients well. But on the negative side, the culture of law, the socialization of lawyers, and, let’s be honest, the personalities of many of the individuals attracted to legal professions, skew the practices of lawyering toward certain modes of zealous advocacy.

Derived from Yelling Man CC BY Paul Cross

Or, as I put it on Twitter a while ago, often the “default setting for “zealous advocacy” is “adversarial douche”.”

Making that comment, I was thinking of a couple of pieces of contract drafting I had seen recently from the lawyers for cultural organizations and arts non-profits. A lot of the time, lawyers draft contracts for parties who have pretty strongly contradictory interests overall, and so their “zealous” mode is to try to make the contract as favorable to their own client as it can be, shifting as much liability and obligations onto other parties as it is possible to do. It can get pretty tiresome when all the parties involved in a contract situation have all lawyers trying to do those things, but it’s a common mode in which lawyers operate.

However, when cultural organizations and arts (or other) non-profits contract to work together, most of the time most of the parties have pretty closely shared interests overall. And even where interests diverge (i.e., most parties would usually rather -someone- else carried the liability), the parties are really unlikely to ever want to take a legally aggressive stance toward enforcing the contract – for lack of resources to bring a suit, or just because of the political repercussions of suing a partner organization. Yet the contracts I was seeing were extremely aggressively drafted, with that underlying thread of “zealous advocacy is pressing -every- advantage for my client, and every disadvantage for everyone else.”

Now, a really good, experienced lawyer, might have realized independently that “aggressive” was not the right form of “zealous” for a partnership agreement among non-profits with shared goals. But even some very good lawyers are sometimes so caught up in their usual practices that they don’t immediately think to switch tactics.

derived from ATT…EN…TION… CC BY-NC-SA Ragesh Ev

So here’s an important thing to think about: you’re the client, your lawyer works for you. You actually can, and should, tell them -how- to approach your legal issues. They should be giving you information about the legal issues, and offering you advice on how to approach them, but if you say “I don’t want to be an adversarial douche”, they should listen to you. It’s appropriate for them to try to convince you of certain tactics if they have good reason, but if they don’t persuade you, they should listen to you. A lawyer who overrides a client’s preferences on this kind of thing is actually not a good lawyer, nor zealously advocating for their client.

This is not just true in contract drafting; it’s true whenever a lawyer is communicating on behalf of their client, and especially in public communications. For example, museum policies sometimes include long lists of legalistic “NO” and “You must…” language. Some of that language has often been shaped by lawyers trying to zealously protect the museum – but museum visitors are not adversaries of museums, and communications with them shouldn’t treat them as such.

In an institutional context, your lawyer may actually work for your institution, and that may sometimes be a different source of conflict – what one sub-group of the institution wants, legally, may not always be in the best interests of the larger institution in the long run. But even in these kinds of situations, a good lawyer will recognize that different styles of lawyering are appropriate to different contexts – several of my favorite people to work with in our General Counsel’s office here at the University of Minnesota will offer their default approach to a particular issue, but then say something like, “but you’re the client, if you’d like to go another way, that’s okay too.”

closely cropped image of shouting mouth with traces of blond beard visible

derived from In Everyday Use CC BY David Goehring

Lawyers should be particularly sensitive to what mode of “zealous advocacy” they’re working in anytime they are making formal legal communications that might be shared with the public. In the Internet Age, that’s pretty much -any- formal legal communication, especially to any person or entity with any kind of online presence. There’s this thing called the Streisand Effect – technically, it’s about how futile and actively counterproductive it is to try to censor information online, but a similar idea applies and multiplies the effects of poorly-thought-out or poorly worded legal threats in general. If your lawyer isn’t thinking about their Cease & Desist letter going viral, they are engaging in very poor lawyering indeed.

One great recent example of a lawyer engaging in default “adversarial douche” zealous advocacy, and another lawyer responding with appropriate-to-the-situation zealous advocacy, can be seen in some of the recent exchanges about “Left Shark“, a doofy meme derived from the recent Super Bowl XLIX* halftime show. A 3D printed figure of the shark was posted by Fernando Sosa on Shapeways.com, and Katy Perry’s lawyers sent a cease-and-desist letter. The letter is pretty aggressive, in a pretty standard lawyerly (read: adversarially douchey) way – and the internet did not take all that kindly to that aggression.

In his response, NYU law prof Chris Sprigman took an entirely different tone. In addition to being just-slightly-snarky in a way likely to generate positive commentary online, it’s also just generally much more reasonable and conversational. The calm and collected tone is particularly well-calculated here, when the high-profile firm representing Perry has… perhaps slightly jumped the gun on some of their legal analysis. For example:

“As you likely know, federal courts and the United States Copyright Office have made clear that costumes are generally not copyrightable. Please tell me why you think the Left Shark costume should be treated differently.”

It also highlights that one underlying reason some lawyers work in this default mode is that it’s a good way to create more work for lawyers.

“My client wants to get back to his business, and he (and I’d wager pretty much everyone else) would be grateful if you’d just back off. Going ahead with these very dubious copyright claims will not benefit Katy Perry. But if you’re determined to press on, please do respond to my legal questions, and we can try to work it out from there.”

Sprigman’s full letter is available on Mr. Sosa’s blog (some images possibly NSFW, depending on where you work.)

Overarching point: your lawyer works for you. With legal documents or in other legal situations, you can encourage them to take an attitude other than “winner takes all” – though there may be some times when an adversarial approach is warranted, even for a non-profit public interest group. You can also, especially in any communications that are directed to -or- likely to be read by the public, direct their tone. Not sounding like a stereotypically “zealous” lawyer may often be a good thing for you and/or your organization, and a good lawyer should recognize that and adapt appropriately.

*Yes, I used that trademarked name without permission or a trademark symbol! Amazing. It’s almost like I’m allowed to use words to refer to the things they name, or something.

Extremely off-topic: cold-weather bike gear, part 3

January will mark my fourth anniversary as a year-round biker in Minneapolis, and since we have recently skipped from Halloween to mid-January, weather-wise, I’m reflecting on my wintry experiences, again.

After last year’s polar vortex, I have a new record low riding temp: -16 °F/-26.7°C. It is just -tiring- to ride in that (though surprisingly, it doesn’t require a whole lot of new gear.) So I took the light rail to work quite a bit last winter (I bought a house last fall, and my very short list of requirements included “less than 0.5 miles from a light rail station”.)

Most of my observations from previous years stand. Wool is wonderful and I feel very very sorry for people who are allergic.

Ski goggles are still awesome, but over-the-glasses is still a pain in the patootie. At warmer cold temps, the heat from your skin fogs the glasses as soon as you stop moving. At colder cold temps, the fog freezes on your glasses lenses. Honestly, winter/bad-weather biking may be the thing that -finally- convinces me to get contacts.

Additional thoughts:

1. YOU STILL NEED MORE LIGHTS. YES, YOU.

One in front and one behind is really not enough, and I see many folks with only one (front -or- rear) or no lights at all.

Really, really – people can’t see bikes in the dark. They just can’t – pedestrians, other bikers, -and- drivers. Even if you have reflectors, those only work when lights are being pointed at you. Active lighting matters.

I use a -lot- of stuff from Night Ize – mostly from REI, including the Spokelit:

I have SpokeLits in green, blue, and “Disc-o”, on two different bikes. I also use their Helmet Marker, and lots of their small carabiner lights.

My headlight is a PlanetBike Blaze – and wow, they are on super-sale right now at REI, so if you’re looking for one… I have had trouble mounting that on the handlebars of my hybrid that I use in the winter, but a little Sugru applied to the mounting rig fixed that right up for me.

My taillights are nothing to write home about; I think one is Planet Bike and one is something else.

I also really like the LightWeights stick-on reflectors – have applied them to some clothing that has been repeatedly laundered, and they’re still stuck on tight. Also have some on various bags, and my helmet. My jacket has reflectors built in.

2. Waterproofing/snowpants

I still like the Novara Stratos pants I got a couple years back, but also frequently use a pair of old men’s wool pants I bought at a thrift store instead of them. The wool breathes better, and keeps my regular pants about equally clean.

I waterproof leather stuff (boots and mittens, primarily) with Sno-Seal. Good stuff, cheap, really works, have used on hiking boots for years. Don’t use on suede unless you want it to turn shiny.

3. Mitten liners

Finally wore big holes through the custom wool liners my friend Amy made for me a few years back; luckily my friend Jo is a professional knitter/felter who is whipping up a new pair for me as I write. Still a huge fan of my leather chopper mittens, just not the nasty liners they come with.

4. Boots

The camping/hunting toe-warmers are not as helpful at ultra-low
temperatures as I thought they were the first year I tried them. I bought some insulated boots last year, and those helped some on the really cold days.

I cannot imagine that $350-winter-biking boots -really- keep feet warm in a way regular boots can’t, but maybe someone who has money to burn can enlighten me on that subject.

I also can’t imagine wearing -any- shoe with a bike cleat in the winter, or even toe cages. I use my feet for balance/speed control way more in the winter, cannot -imagine- wanting them attached to the bike.

5. Riding surfaces

You’re actually better off when it’s colder, because solidly frozen surfaces are pretty easy to ride on (with studded tires. Incidentally, I got three full winters of use out of that first set; I need to replace them, but I’m waiting for a big sale next month.)

Solidly frozen stuff does lend itself to skidding, even with studs, when you go around corners. And if you slam on your brakes hard, you tend to fishtail. It happens. There is a lot more slipping and sliding when riding in the winter, no matter what the surface – you just have to stay relaxed, don’t let a little slip or bump scare you too much, and you’ll be surprised how much you -don’t- fall! (Also, even if you fall on ice, which sounds kind of scary and hard, it is usually less rough than asphalt, and you’re wearing more clothes, so less road rash than in warm-weather falls.)

Salt is NOT YOUR FRIEND. Yes, it’s corrosive, but that’s not really it. Salt creates soft patches. The softer a surface is, the harder it is to ride on, and the more you slide around. Worse, salt facilitates the creation of ruts, and if it freezes afterwards, ARGH.

Elevation changes that run parallel to your wheels (ruts, or the edges of where a plow went, or the edge of a patch of thick ice) are dangerous, especially when there are cars next to you. Ruts, etc, can make you move up to a whole foot sideways without your control; if people are driving too close to you, pull over to let them pass, you do NOT want to get stuck in a rutted area with cars close by.

Elevation changes that run -perpendicular- to your wheels are FUN. Well, no, not potholes and stuff. But ridges of snow leftover from plows, or berms at the edge of a sidewalk are actually great fun to ride over. If they’re soft, they are also way easier to get through than a long skinny patch of soft snow parallel to the wheels.

6. Lube & cleaning

Last winter is the first time my -brakes- froze solid while riding. This was mostly from grit & stuff freezing in the cables of the pull. Blowing on them thawed them out enough for a momentary fix, but I started carrying super-thick winter bike lube in my bag for slightly longer fixes.

The winter beater I was riding last winter was just really bad on a lot of dimensions, but at one point, my freewheel gummed up completely. I was able to fix it by mostly taking apart the back wheel, and dripping a lot of lightweight oil through it for several days, but that was another contributor to the light-rail usage. It’s possible the freewheel wouldn’t have gotten so bad if I’d been more careful cleaning the bike. Weekly cleanings of the drivetrain (somewhere indoors with heat) is pretty essential in the winter.

In conclusion: winter riding is not for everyone. I am still not an evangelist. But if you think you might want to try it, you may find it as fun as I do! (If you’re a local, let me know, and we can go riding some time!)

11th Circuit Rules On Georgia State Fair Use Case

The 11th Circuit Court of Appeals issued its ruling today in Cambridge University Press et. al. v. Patton – otherwise known as “the Georgia State case.” This is a case in which academic publishers (Cambridge UP, Oxford UP, and Sage) sued a public university for use of excerpts from books in online e-reserves and course websites. (Lawsuits funded in part by the ostensibly-neutral Copyright Clearance Center.)

Previously, the District Court ruled that most of the uses in question were fair use. On appeal, it didn’t look like things were necessarily going well for academic users. Indeed, today’s ruling reverses the lower court’s rulings, vacates some results of the ruling, and remands the case back to the lower court for reconsideration in light of the corrections made in today’s ruling. But given the possibilities contemplated after oral arguments, (and heck, given the concurring opinion attached to this ruling) things definitely could be worse!

Excellently Good Things

The court’s opinion confirms that the 1976 Classroom Copying Guidelines are not law, and not an appropriate lens through which to consider fair use in course contexts. (The court also affirms that even though the Guidelines are maybe informative, they were originally intended as a floor, not a ceiling, on fair use.)
Maybe this isn’t great news to the many folks who have (quite correctly) long-since abandoned applying any mental energy to the outdated Guidelines. However, I regularly encounter librarians, library workers, teachers, and other educators who have received no other information about fair use – and often, these folks have explicitly been trained that the Guidelines are the One True (and complete maximum) Way to Know Fair Use in classroom contexts. (Oddly enough, many of them have also received their only copyright training at no cost, from generous publishers…) Having an affirming court opinion to refer to that clearly refutes the applicability of the Classroom Guidelines is quite a blessing, from my perspective.
The court extensively discusses the public purpose of copyright law. Section B of the opinion (page 46-55) is a masterfully written, quite clear overview of the theoretical underpinnings of U.S. copyright law in general, and of fair use in particular. (I think it’s a bit weaker in the second half, but pages 46-50 are really darn good reading.)
The idea that creator remuneration is -secondary- to the actual purpose of copyright law is often left out of a lot of related public discourse. Most artists (and most lawyers I’ve met who represent artists or corporate creators) would put creator remuneration at the center of copyright. But this opinion (quoting from many, many other opinions) affirms again that “[p]romoting the creation and dissemination of ideas has been the goal” since the Statute of Anne, and that this is because the creation and dissemination of ideas is a public good. Moreover, the court affirms that “[t]he fair use doctrine also critically limits the scope of the monopoly granted to authors under the Copyright Act in order to promote the public benefit copyright is intended to achieve.”

The court agreed that case-by-case, or work-by-work is the appropriate approach to fair use. Since the alternative the Plaintiffs were arguing for was that “a nebulous cloud of infringements purportedly caused by GSU’s ‘ongoing practices'” were the correct form of inquiry, all institutions that rely on fair use in daily practice got off well here.
The court agreed that non-profit educational purposes are especially valuable under fair use law. “Congress devoted extensive effort to ensure that fair use would allow for educational copying under the proper circumstances and was sufficiently determined to achieve this goal that it amended the text of the statute at the eleventh hour in order to expressly state it.”
The court affirmed that relevance to a pedagogical goal -is- relevant to fair use. (p. 86) (Plaintiffs had argued relevance to purpose was only relevant for transformative, parodic uses.)
The court disapproved of Judge Evans’ blanket 10%-or-one-chapter rule. While avoiding bright line rules does make life more difficult for end-users, this was a bright line very few people were comfortable with; it limits other interplays such as relevance to pedagogical purpose.
The court would not consider the argument (apparently raised late in the deliberations of the District Court) that the correct frame of reference for measuring the “amount” of the work being used was a single chapter, rather than the whole book. Since the Plaintiffs primarily went along with arguments about how to determine the number of pages in the book, in order to determine how much of the book each chapter was, the court agreed that the discussion had to be had in terms of how much of the book each chapter was, not how much of the chapter.
Something to remember for your litigation practice, law students. Raise it too late, and the argument’s gone.
In addition to rejecting the applicability of the Classroom Copying Guidelines, the court also rejected the coursepack copying cases as binding authority, or apparently even as very persuasive. They’re vaguely acknowledged, but not followed.
The court soundly rejects the idea that excerpts from books substitute for sales of the -actual books-. (p. 94) Unfortunately but unsurprisingly, it then goes on to confirm that unlicensed excerpts do substitute for sales of licenses-to-excerpt. But, also happily, it does affirm that “the ability to license does not demand a finding against fair use.” (p. 95)

Not-Surprising Things

Section B of the opinion is, as I said, a masterful overview of the theoretical underpinnings of U.S. copyright law. Since we frame our law as deeply tied to economic incentives for authors to create, it’s not surprising that this section has extensive discussion of how allowing too much “unpaid copying” will harm the economic incentives, and thus result in an outcome that doesn’t further the public good of ongoing development of new knowledge and ideas.
Two things bother me about the focus on economic incentives – but these things bother me about U.S. copyright theory in general, not this opinion in particular. The first is that this discussion completely fails to acknowledge the many other incentives creators have for creating. In particular, in academic contexts, creators fairly -rarely- receive direct economic benefits for their copyright ownership; its not entirely absent, but definitely a peripheral motive. But even outside academia, there are a lot of other reasons people create.

The other thing that bothers me about the focus on economic incentives is that market models don’t actually reflect reality. I could get into deep critique of Coase or whatever, but this is a blog, and it’s Friday night, and also, there are reasons I didn’t go into economics full time. However, even the court in this opinion fully acknowledges that we have to do away with a lot of reality to delve much into fair use and economic incentives: “in making fair use determinations, we must conjure up a hypothetical, perfect market for the work in question, consisting of the whole universe of those who might buy it, in which everyone involved has perfect knowledge of the value of the work to its author and to potential buyers, and excluding for the moment any potential fair uses of the work. Then, keeping in mind the purposes animating copyright law–the fostering of learning and the creation of new works–we must determine how much of that value the implied licensee-fair users can capture before the value of the remaining market is so diminished that it no longer makes economic sense for the author–or a subsequent holder of the copyright–to propagate the work in the first place.” (p. 51) (emphasis mine)
The court affirmed that course readings are not transformative use. Although I respect the acumen of my colleagues who have argued otherwise, this has always seemed fairly straightforward to me. I am heartened that the court -also- affirmed that transformative purpose is NOT required to find that the “purpose” factor favors the user.
The court found that Judge Evans erred in making a blanket determination that the works copied were primarily “factual”. You have to look at each work individually, and determining the specific balance within a work is a pretty fine job. (The court also said, though, that this factor is not particularly important in the specific fair use analysis at hand.)
The Appeals court held that availability of licenses to digitally excerpt a work was correctly determined by the District Court to affect whether there was market harm.
Some of the additional considerations that Judge Evans entertained outside of the “four factors” analysis were held to more properly belong within it. (pp. 106-110)

Weird Things

There is a weird element of Section B, where the court describes fair use as an “implied-by-law” license that creators grant in return for the grant of monopoly rights through copyright. While I’m familiar with framing fair use as a quid pro quo for protection most of the time, the framing of it as an “implied license” feels very strange.
There’s a mildly terrifying digression on pp. 67-70 into whether indirect benefits to a non-profit educational user can obviate their non-profit educational purpose (or at least counterweight it.) Thankfully, the court eventually concludes that “If this analysis were
persuasive, no use could qualify as “nonprofit” under the first factor. Moreover, if
the use is a fair use, then the copyright owner is not entitled to charge for the use,
and there is no “customary price” to be paid in the first place.”
However, the court goes on to entertain, and answer in the negative, questions about whether GSU gained reputational benefits from its course copying. If these indirect reputational benefits undercut a non-profit educational purpose, it raises all kinds of odd issues for fair use in contexts like conference presentations! I’m going to think more about this (and do more research into the lines of fair use cases about indirect, noneconomic benefits.)
The court observed that industry “best practices” are “not relevant to individualized fair use analysis”. That could be a bad thing, because sometimes industry practices are all we have to go on to determine fair use. But it was a fairly glossed-over discussion, and they may have meant just that individual circumstances of a specific use case are more important than overall best practices…

Things I Don’t Like

The court’s emphasis on how important market harm is, and the subtle and nuanced interplay of the four factors is not at all unexpected. I’m not a fan of their holding that, because they are not transformative, the uses in question are highly likely to be market-substitutions, and thus that the market harm factor is especially important. This, too, though, is not unexpected.
The thing I really don’t like is that the court’s emphasis on subtle interplays, and especially on the extra weighting of the fourth factor, creates some incredible barriers for the people who actually have to make fair use determinations about course readings – instructors! By placing additional weight on market harm – a factor about which end users have almost no information – the court is creating major difficulties for end users. It would be hard, but not impossible, for many instructors to find out if a license is available. It’s really quite out of the question for individual instructors to correctly hypothesize -future- directions of the market…

I might be less frustrated by this if the court were not quite so emphatic in its embrace of the importance and value of educational fair use elsewhere: “allowing latitude for educational fair use promotes the goals of copyright.” Teachers, definitely use fair use sometimes! Just, do so while having sophisticated business analysis skills for companies about which you have no data!”

[Edit: Please note, my suggestion that nuance creates challenges for end-users does NOT mean that I think “everyone should just pay for everything” is a remotely reasonable or workable alternative. Nuance is at the heart of fair use, and end users can deal with a lot of uncertainty. Just, particularly when its about information end-users -don’t have-, it’s problematic.]
My frustration in the bullet immediately above is also reflective of another broad-scale problem with current copyright laws. They were drafted for a time when, in order to commit infringement on a scale that was noticeable by copyright holders, one more or less had to have some level of industrial-scale resources. It may have been reasonable then to expect that potential fair users could engage in a complex, intertwined, nuanced and even sort of iterative fair use analysis (though query whether courts -did-, in the ’70s). But today, users at a much smaller and more individual scale are the target of infringement lawsuits, and if the statutes haven’t been updated, legal analyses could at least take that into account.
Judge Evans’ decision in the District Court, while taking some unusual tacks, was in some ways more on track to provide clarity to the actual individuals who have to make assessments about fair use in instructional contexts. The 11th Circuit opinion takes us (and her, my goodness I don’t envy the review on remand) further away from that.

But perhaps legislative reform is a more appropriate path for developing clarity for end-users. (Ha! I crack myself up.)
I sort of feel like factor 1 either intertwines with factor 4, -or- factor 3, but both? Really?? (p. 82)
Oh, wait, almost forgot. I don’t like that this opinion reverses the lower court’s opinion. It would’ve been nice to have a stronger affirmation of educational fair use. Further legal opinions (if they come) are likely to range from a lot to a bit more limiting. But that’s not 100% clear, and they may not come.

Judge Vinson’s concurrence is a really nice thing to read -after- the opinion, if you are someone who favors educational fair use. Things could have gone much, much worse. (Non-legal-beagles: a concurrence means (in this instance, at least) that Judge Vinson agrees on overturning the District Court’s opinion, and vacating its orders, and remanding the case for further consideration. He just thinks those are the correct course of action for wholly different reasons; i.e., he seems 100% certain that GSU should be paying for ALL COPIES OF EVERYTHING.)

It is difficult to predict what will happen next. This is not a slam-dunk case for the publishers, though it does favor them more than the first District Court opinion. Remand and review will require a great deal of time and resources, again, and the parties may feel that it’s not worth that investment, and settle. If so, we won’t get more rulings from courts. If they don’t settle, we’ll get another District Court ruling, different from, but perhaps not entirely overturning, the previous one. And perhaps another appeal after that, and…

In the meantime, it may also be worth remembering that none of this legal interpretation is binding law outside of the 11th Circuit (Alabama, Florida, Georgia.) In other states, we can look to these opinions for guidance, but we can also explore different paths.

Joys of the Public Domain/Creative Commons – Aluminum!

For reasons that don’t need exploring at this juncture, I went out & found some neat-o public domain and open licensed pictures of aluminum, particularly related to its chemical/physical properties, and its use in food preparation!

Food:

Black and white photo of several aluminum pots and pans
Display of aluminum pots and pans. Date probably is around 1910- 20. Troy photo.(Cornell University Library)

Printed catalog image of large array of aluminum pots and pans.jpg
Wear-Ever Aluminum cookware, from “Hardware merchandising August-October 1912” (Internet Archive Book Images collection)

printed catalog image of multi-layer cooking pot with grill inserts
Round grill with aluminum pans, “Journal of Electricity”, 1917. (Internet Archive Book Images collection)

Refreshments on the ocean cruise to Broken Bay, South Steyne, December 1953 / Australian Women’s Weekly photograph. (State Library of New South Wales.)

single aluminum pot full of cooked bread leaning against a log
Spotted dog bread in the bush. CC BY-NC-ND Camelia TWU.

aluminum solar oven with mushrooms cooking on aluminum foil
Solar Mushrooms. CC BY antonio prud’hommmmme,

close image of jagged edges of aluminum ravioli press
ravioli press. CC BY Robert S. Donovan

Large stacks of aluminum cookware in display outside of a shop
Aluminum containers. CC BY-NC-SA Choo Yut Shing

Two men chopping tofu on wooden table and dropping small diced pieces into large aluminum bowls
Two Tibetan cooks diceing tofu… CC BY Wonderlane

Chemistry/Science!:

“Some tests of light aluminium casting alloys–The effect of heat treatment ..” 1919. (Internet Archive Book Images collection) (click individual pictures to reach originals.)

modern color micrographic image of aluminum structure showing fine wide layers of crystals
The grain structure of extruded aluminium.CC BY-NC-SA CORE Materials/DoITPoMS, University of Cambridge.

modern color micrograph of aluminum showing semi-rounded crystals
As-cast wrought-grade aluminium alloy (Al-Mg-Fe-Si containing <1wt.% of each solute). CC BY-NC-SA CORE Materials/DoITPoMS, University of Cambridge.

modern micrograph showing crystal structures
Channelling contrast TEM image of subgrains of extruded aluminium. CC BY-NC-SA CORE Materials/DoITPoMS, University of Cambridge.

Modern micrograph showing cell structure of aluminum foam
Open-celled aluminium foam. CC BY-NC-SA CORE Materials/DoITPoMS, University of Cambridge.

photo of aluminum metal in unworked form
Porous aluminium. CC BY-NC-SA Taran Rampersad.

amorphous blob of metal in someone's hand
Aluminium frying pan – fried. CC BY-NC Michael.
(Side note: notes suggest this is the result of ridiculous experimentation with thermite. Cool! Terrifying!)

metal bar bent to a curve sitting on a piece of paper indicating the measurements of the curve
Aluminium bend. CC BY-NC-ND Barnshaws Metal Bending, Ltd.

close up on welded seam between a pipe and a rounded flat plate
Aluminum Weld. CC BY-NC-SA Chris Yarzab.

These last two are just ‘cuz I thought they were too cool to skip:

three women stand and crouch inside an airplane fuselage installing parts
Women
workers install fixtures and assemblies to a tail fuselage section of a
B-17 bomber at the Douglas Aircraft Company plant, Long Beach, Calif. Circa 1939. Photog: Alfred T. Palmer.
(Library of Congress collection; transfer from Office of War Information.)

A woman poses in a scrapyard wearing jewelry made of scrap aluminum
Annette del Sur publicizing salvage campaign in yard of Douglas Aircraft Company, Long Beach, Calif. Oct, 1942. (Library of Congress collection; transfer from Office of War Information.)

And I thought “Can We Scan This?” was a hard question…

We have some really amazing and interesting things in our Archives and Special Collections; when we have some funds available, there’re always things we want to digitize for preservation purposes, and for public sharing. Unfortunately, copyright is often a huge barrier to scanning things and making them available to the world: we can do it if they’re in the public domain – but are they? We can do it if we have permission from the rights holder – but who holds the rights? There’s an incredible amount of research involved in digitization projects – who did this come from, was it ever published, where was it published first, was a copyright registered, was it renewed, when did the author die, who were their heirs, where do the heirs live…

But lately I’ve been grappling with a whole -new- set of questions for some digitization projects, thanks to some funding that can only be used to make materials available with an open license. Rather than trying to figure out who, if anyone, could or would object to our scanning project, we have to track down the documentation necessary to establish that we own the copyrights in the materials. In several cases, we can document pieces of the necessary legal chains: individuals signed releases to Entity A, and Entity A gave us the materials – great first step! But Entity A no longer exists, and we have no documentation that Entity A ever gave the copyrights to us – augh! In other cases we have documentation that the rights to some of the materials were transferred to us, but there are chunks of the materials where the rights probably belong to someone other than the group that gave us the rights. So, clearly, we don’t own the rights to those chunks – and sometimes, those chunks are anything but clear to pull out of the overall collection.

The oddest thing is how -far- this work is from the risk management mindset that colors so much of copyright use analysis. Rather than uncertain documentation putting us in a riskier situation (are there heirs we didn’t know about???), uncertain documentation produces a certain conclusion: If we don’t own it, we can’t license it. And in this case, since the money can only be used for licensable materials, if we can’t license it, we can’t digitize it. 🙁 Not the most fun set of investigations.

(On the up-side, my various archives and digitization colleagues are all awesome, and great to work with!)

A poor “translation” of a critique

I shared this Tumblr post earlier tonight as an example of the cutting cultural critique that media fandom produces internally:

(Edit: the original source of this post is http://thominos.tumblr.com/post/98330131513/tw-were-trying-to-let-sterek-die-sterek-fandom; I first encountered it, and screencapped it at
http://jerakeenc.tumblr.com/post/98336801735/tw-were-trying-to-let-sterek-die-sterek-fandom

(which appears to have added the “the anti-marketing legend” tag.) The source link formatting was unclear when I originally posted.)

As I said at the time, I couldn’t figure out how, in the Twitter context, to make it comprehensible to the kind of people who dismiss Tumblr and fans. But then several different people asked for further explanation anyway. Here’s my -admittedly poor- attempt:

TW here is a shorthand for “creators/producers of the Teen Wolf tv show”. Sterek fandom is fans who enjoy positing a romantic/sexual relationship between two male characters (Stiles & Derek, hence “Sterek”) that is not canonically part of the show.

So in this post, a fan is acknowledging that the producers are increasingly uncomfortable with the noncanonical gay relationship that is popular among fans (although the producers have in the past quite openly encouraged fan interest in the “Sterek” relationship while carefully ensuring it’s never more than subtext in the show), and have suggested that they would like fans to knock it
off – “Trying to let Sterek die”. The writer paraphrases the attitudes of the entire group of Sterek fans as laughing dismissal – “lol fine”, and then suggests that if the show is edited to reduce focus on the characters so many fans enjoy, they’ll stop watching the show altogether, but continue writing, drawing, and otherwise producing fan-generated content focusing on the parts of the show they have found compelling in the past – “shipping Sterek”.* Finally, the writer suggests the producers may not have anticipated the fact that fans of the show aren’t particularly concerned with what the producers want them to like about the show – “no wait”.

Fans are well aware of the close relationship between the meanings consumers create by consuming media, and the long-term success of the media source itself. And fans are also well aware that corporate creators tend to ignore or deny that relationship, or try to manage it in unrealistic ways.

*Incidentally, many fans of this show have been actively critical of the show’s treatment of its nonwhite and female characters, and its waffling attitude towards normalizing gay characters (as well as apparently** overall shoddy plotting and continuity) but watch it anyway because of the parts they find compelling. Active critique of source content isn’t uncommon among fans.

**I don’t watch the show. I’m fascinated by the depth and creativity of cultural critique that fans produce via fan-created media, so I spend time reading
the Tumblrs of people I’ve found in the past to be insightful or entertaining or just good at link-sharing (Edit: or, I confess, who share a lot of cute animal pictures.) Though critique is not always the main mode of fan interaction, it is often present, if sometimes subtextually, even in everyday conversations.

What I’ve entirely failed to capture in this “translation” is the humor of the original.

Edit: OMG, if you’re not familiar with critique & study of fan culture (& that journal is just one among many sources!), please accept that none of these observations are new or original to me!

Contracts & Copyright (II) – Limits Beyond the Law

In yesterday’s post, I laid out some basic principles of copyright and contract law, and started to outline some of the complicated implications of them. Here’s an expansion on one of those areas:

contracts can prevent you from doing things that copyright would normally allow you to do

Edison Eula closeup CC BY-NC-ND Fouro Boros
If only Thomas Edison had figured out that “taking action to agree” thing, we could’ve had EULA’s nearly a century earlier!

This is 100% clear when you actually negotiate and agree to a contract about how you will use something. This is also pretty darn clear for licenses to which you agree with some conscious action (like clicking “I agree” or opening shrinkwrap) even if you didn’t read the terms of the contract. Most courts will happily enforce those contracts.

Most US courts will happily enforce almost -any- contractual terms that are not illegal, or so incredibly unfair or morally reprehensible as to be “void as against public policy”. You can (and almost certainly do, on a daily basis) contract away your right to take someone to court – often by agreeing to “binding arbitration” instead. Courts frequently enforce arbitration clauses.

Examples of limitations on your use – copyright-wise – that I’m fairly certain many of you have already agreed to (I’ve agreed to one of them, but not the other):

Got iTunes? You’ve agreed that “(i) You shall be authorized to use iTunes Products only for personal, noncommercial use.” Copyright law allows you to use things for commercial purposes without permission if your use is a fair use, but it’s a violation of your iTunes contract to use those materials for a commercial fair use.
Got Netflix? You’ve agreed that “THE NUMBER OF DEVICES ON WHICH YOU MAY SIMULTANEOUSLY WATCH IS LIMITED.” Watching movies in your own home does not actually implicate copyright law (unless you are doing some very weird movie-watching). So as far as copyright goes, you can watch as many things as you want on as many devices as you want, forever and ever and always. But Netflix gets to set a limit for you, and trying to exceed that can violate your contract.

A couple of people have asked me “can you point to case law where a court said a contract could limit use of public domain materials?” This was mostly in discussions about limitations archives and museums (or electronic database vendors) impose on use of older materials in which the copyright has expired – and I am not familiar with a case specifically on those facts.

However, I’m familiar with the ProCD case, in which the Seventh Circuit upheld a clickthrough license that limited use of a phone database. They specifically confirmed that the phone database was not covered by copyright, but that commercial use was prevented by the contract. Most discussions of the case focus on the court’s interpretation of whether the clickthrough license was enforceable, but the copyright ruling is also pretty clear. (Though the ProCD opinion did say that the contract terms weren’t preempted by copyright because they didn’t overlap with copyright rights, and I don’t know if that’s been cleared up since, and is it clear yet that I don’t have Lexis or Westlaw access?)

“So what?” you say, “Apple’s not going to sue me for breach of contract!”

Nope, but they could choose to terminate your account.

More on that, and on contracts that you did not personally agree to – sometime in the next few days.