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Copyright Holders Shutting Down University Copy Shops; Libraries Need To Worry About Photocopier Infringement

from the librarians-beware dept

Mon, Oct 19th 2009 4:01pm — Mike Masnick

It looks like copyright holders, in their non-stop effort to make themselves look even more evil, are now aggressively going after university copy shops. Up in Canada, Access Copyright hasn't just won a legal dispute against a Toronto copy shop, but has gleefully seized the photocopiers from the shop. Then, not all that far away in Eastern Michigan, a court found a copy shop to be directly liable for copies made by students. As the post at the Exclusive Rights blog explains, you would expect the copy shop to be liable for secondary infringement, rather than directly liable... but not in this case. And that's problematic for a variety of reasons. Even the publishers in question didn't seem to think they had a chance on direct liability, and only mentioned it in one sentence, while most of the complaint focused on secondary liability. So why is this a problem?

The reason this matters is that to find someone to be liable under secondary infringement (contributory liability), a plaintiff must show that the defendant had knowledge or reason to have knowledge of the direct infringement. This is one of the two mechanisms, along with fair use, that shields libraries from liability if they keep a copy machine by their shelves. If an entity can be directly liable for providing and maintaining a copy machine, and taking payment for copies made on the machine, then libraries have lost a not insignificant shield.

So, watch out librarians. You may have just acquired a bunch of liability. Look out for copyright holders stopping by to seize your photocopiers. Update: The author of that original post, Shourin Sen, has added an update, to take into account questions some people raised concerning 17 USC 118(f) which provides a special exemption for libraries -- but notes that those safe harbors could be under attack as well.

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Filed Under: canada, copy shops, copyright, liability, libraries, photocopiers
Companies: access copyright

34 Comments

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Ben (profile), 19 Oct 2009 @ 4:19pm

That....
is f*cking stupid
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Anonymous Coward, 19 Oct 2009 @ 4:22pm

Well, maybe since they realized that they can't kill the internet easily, they've decided to attempt to kill the photocopier.
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Geof (profile), 19 Oct 2009 @ 4:37pm

Appears to be commercial infringement
I am not a fan of Access Copyright. Their lobbying and proposals in the recent copyright consultation here in Canada have been about as regressive as it gets.

However, if AC's own report is accurate (do we have a third-party source?), it appears that a) the shop is a business independent of the university, and b) it was illegally manufacturing bulk copies of textbooks. If so, then the shop is not being busted for providing equipment so that students can make their own copies - something permitted under Canada's private study exemption (I'm not a lawyer). The shop's activities sound like exactly the kind of commercial infringement that copyright has always been meant to prevent.
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Anonymous Coward, 19 Oct 2009 @ 4:47pm

Re: Appears to be commercial infringement
That it is.

From the prospective of a student, though, this is pure BS. I've never used a copy shop myself (I don't even know where any of them are, to be honest), but shutting them is irritating as hell.

Costs of textbooks can and will be at least 20% of your total university/college fees, and for an undergraduate in a 4 year program, that amounts to about $5000, low-ball estimate.

Not only that, but you have the publishing companies releasing new "editions" every second semester, meaning you can't even get cheap discounted used copies.

So while this isn't an abuse of copyright laws, school textbooks are the perfect example of the problems with copyright law in general.
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Cheeezeburger, 19 Oct 2009 @ 5:01pm

Forced Upgrade as a Business Model
Educational textbook publishers and Microsoft have something in common
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ReallyEvilCanine, 19 Oct 2009 @ 5:01pm

Woohoo!
So if I get nailed for driving drunk in East Michigan, Toyota is responsible and not me? Next round's on me!
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ChurchHatesTucker (profile), 19 Oct 2009 @ 5:09pm

It's OK
Fortunately we have computers to publish our samizdat.
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kyle clements (profile), 19 Oct 2009 @ 5:13pm

copy shop
The Toronto copy shop article hits close to home.
The photo in the article shows a building which used to house 2 competing copy shops that I used for nearly all my University textbooks. (only one remains in business today-and I mean that literally, I walked past this building TODAY)

In my first year of University (2002) My school (OCAD) had a deal with 'Copy Shop A' to photocopy course readers, since dedicated textbooks did not exist for my program.
The cost was about $14.50 for a 100 page photocopied course reader.
Sometime during my second year, the shop was busted for copying without permission, and not paying a copyright clearance fee, so we had to use 'Copy Shop B' which DID pay the copyright clearance fee.
guess how much a photocopied textbook of roughly equal length cost in year two?
$45.95
in year 3, the cost rose to $92.00 for a 100 page photocopied course reader.

This is the message that Access Copyright sent out to the students of the University of Toronto, Ryerson, and the Ontario College of Art and Design:
Because of us, your textbook costs have gone from $14.50 to $92.00.

By year four, less than half of the students in one of my classes had purchased the textbook. most people would get a group of friends together in the library, take the copy the library had on file, and make multiple copies of that, which worked out to being about half the cost of going legit.

They certainly weren't winning anyone over with their actions.

Since graduating in 2006, my school has moved on to having its own copy shop/bookstore, so I have no idea what the course reader situation is today.
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Aaron, 19 Oct 2009 @ 5:14pm

Funny
I was just the other day making the argument that if it's the uploaders are sued for making content available (instead of downloaders who actually make the copy), then libraries would be the next logical target for having books available.

I sort of thought I was being sarcastic, but apparently reality is even more ridiculous.
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PRMan, 19 Oct 2009 @ 5:34pm

Way to leave out the relevant facts, Mike...
"First, although students press the start button and make a copy of the coursepack, Excel is the source of the reproduction. Excel controls the entire copying process. It retains the “master,” maintains its quality, gives it to a student to copy, and accepts payment. Excel also owns and supplies all of the elements of reproduction – the venue, the copy machines, the paper, and the utilities. Excel staff members are available to assist students in the copying process and also provide binding services if requested. This scenario is vastly different from a student, who happens to obtain a coursepack from a friend or other third party and comes into Excel’s premises and makes a copy."

Excel was HOLDING the pack for the students to copy. They were DISTRIBUTING the relevant materials to the students.

That's everything in a copyright liability suit, isn't it?

Then again, libraries also provide most of the works that are copied in libraries, don't they?
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Anonymous Coward, 19 Oct 2009 @ 5:41pm

just stop.
listen retard. your alarmist bullshit is nonsense.

http://www.law.cornell.edu/uscode/17/usc_sec_17_00000108----000-.html
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NullOp, 19 Oct 2009 @ 5:49pm

WHAT?
Now, please, tell me again why we stopped public horse whippings? Seems like there is more than a few people that could use one!
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John Duncan Yoyo (profile), 19 Oct 2009 @ 5:56pm

Re: copy shop
I worked at a Kinko's next to a large University in the late eighties and they would do course packs for classes there. They would only copy what they could clear. We cleared nearly $1 Million in a month at the start of the term.

The self serve area was what ever people wanted to copy. It wasn't any of our business.

Now with scanners people can trade around files with the textbooks. Making text book piracy much more efficient.
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Anonymous Coward, 19 Oct 2009 @ 6:13pm

The main library in my county has tens of thousands of non-circulating books. You can request and look at these books - and photocopy pages - but you can't take them out of the room. It would be a great shame if libraries were pressured into getting rid of their copy machines out of a misguided attempt to stay out of the courts.
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Frank Stallone, 19 Oct 2009 @ 6:50pm

Re: just stop.
Good call. I was hoping somebody was going to point that out. As a clarification for all the other alarmists out there, there are a lot of exceptions to the copy right. One of them is for educational institutions.

It's unfortunate that posts like this screw up the public's understanding of IP law. On the other hand, it keeps the lawyers is business.
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Mike Masnick (profile), 19 Oct 2009 @ 6:53pm

Re: just stop.
listen retard.

Yes, always makes a stronger case when you start with an insult.

your alarmist bullshit is nonsense.

As is your reading comprehension. You see how the text is indented and italicized and there's a link above it? That's because I'm quoting someone else.
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bigpicture, 19 Oct 2009 @ 7:00pm

Re: Appears to be commercial infringement
I am no big fan of copyright and the general tactics of these copyright groups. But if what you indicate here is correct then that is not deemed "fair use" and they have a legitimate case. If I understand correctly, the print-shop was essentially producing copies for sale. The copyright thing was originally more about this scenario, if the author cannot profit from their own works then no-one else should. Somebody profits big time from textbooks, and the prices that students have to pay, but it is probably not the authors. E-textbooks might solve this problem, where the student would deal directly with the author and cut out all the middleman gouging.
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Mechwarrior, 19 Oct 2009 @ 7:37pm

This will just make people bootleg more books. At least when you copy a section at a library, its fairly certain that the library has legally purchased the book.

Frankly, Ive photocopied a lot of stuff while in college, because many books are not allowed to leave the library. Other than transcribing the book yourself, photocopying is the only way to walk away with valuable information.

This case just shows the total mismanagement and lack of understanding in copyrights that the courts are guilty of. I dont even know if there's a solution to this problem other than letting computers take over our legal system.
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Anonymous Coward, 19 Oct 2009 @ 8:08pm

Re: Re: just stop.
You point the reader to a case on how a copy shop that regularly copies entire textbooks was found directly liable for copyright infringement (their employees were copying entire textbooks and then selling them, and in other incidents, grabbing the course packets and handing them to the students to copy). And then you quoted someone who ADMITTED she didn't know all the law (she even edited her article to say "He points to a provision in the Copyright Act, 17 U.S.C. 108(f), that I should paid more attention to before posting.") She comes back with a reply to this issue, but ignores the whole fact that this copy-shop is a for-profit entity, whereas libraries electing 108(f) protection are typically non-profits and receive a ton of taxpayer funds (that's the whole rationale for having 108f in the first place).

So here you have someone who was clearly unqualified to render such a legal opinion, but you cited her as THE authority on the matter. Then you immediately followed with: "So, watch out librarians. You may have just acquired a bunch of liability. Look out for copyright holders stopping by to seize your photocopiers." You took a clearly false statement of law and sensationalized it even further.

Regardless, in EVERY area of persuasive writing (whether it's law, literature commentary, or fortune cookies), when you quote someone without stating in some manner that you disagree on points X, Y, and/or Z, then you're implying that you agree with what you quoted. The fact that you expressly extended that argument only solidifies such an implication.

I'm sorry, were those words in the end there too big for you? I'll make it easy. Confucius say: "You fail at life."
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AN, 19 Oct 2009 @ 8:34pm

Re: Re: just stop.
Lack of eloquence aside, his point is valid. You say right in the headline that libraries "need to worry", and you finish up with advising them to "watch out".

Libraries are, in fact, exempt from this type of issue, so your commenter is indeed justified in crying "alarmist". It is disingenuous at best to declare otherwise. Even repeated bullshit is still bullshit.
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Mike Masnick (profile), 19 Oct 2009 @ 11:43pm

Re: Re: Re: just stop.
Confucius say: "You fail at life."

Good thing you're a meaningless anonymous commenter who appears to not understand how the internet works (and seems to be a bit clueless on how conversations work). Otherwise, I might care.

I've updated the post, after getting an email from the original author of the post, who admitted the error. Now, you could have made a nice post pointing out the error, and it would have lead to an interesting discussion. Or you could have been an insulting asshole.

Which did you choose?

I have no problem with an open conversation where people in the comments add additional facts. That's why we have open comments. People get stuff wrong all the time, and that's how we all learn.

So, a normal, well-adjusted person, might have pointed out an explanation for why the original poster was wrong, and we could have had an interesting discussion about it.

Or you could be a total jerk.

Which did you choose?
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Mike Masnick (profile), 19 Oct 2009 @ 11:45pm

Re: Re: Re: just stop.
Lack of eloquence aside, his point is valid. You say right in the headline that libraries "need to worry", and you finish up with advising them to "watch out".

Again, the original commenter has explained why this could still apply to libraries, while admitting the original error.

I think it's an interesting discussion, and it would be great if people who were familiar with these things had an open discussion about it here rather than tossing around insults. That's the point of the open comments here.

It's too bad that some, such as our anonymous friend above, seems to think they're about something else.
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Andrew D. Todd, 20 Oct 2009 @ 1:26am

Electronic Cameras.
These days, serious scholars are no longer using photocopiers in libraries-- they are using electronic cameras with desktop "mini-tripods." The image quality may not be quite so high, but it is good enough, and the camera is easier to set up and use if you have to do a lot of copying-- say, going through a hundred volumes of a magazine, and copying a couple of thousand pages, as raw material to write a book.

There is a terrific advantage in being able to turn pages without moving the book, instead of having to turn the book over. With the photocopiers, what one had to do was to sit down at a desk and skim through a volume, writing out a work-list of the pages one needed to copy, and then carry the volume to another floor of the library, and wait in line to go through and make one's copies. With an electronic camera, the work is much simpler-- just snap pictures of everything which looks as if it _might_ be interesting, and take a closer look after you get home.

Some people get expensive cameras, such as Cannons or Nikons. Myself, I got a no-name-clone camera which only cost about a hundred dollars. My reasoning was that for maximum depth of field, one would want to use a very small F-stop anyway, so there was no point paying for a big lens, and the camera would be technologically obsolete in five years.

The practical effect of this is to remove the library from the loop, as the library does not own the camera.
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Anonymous Coward, 20 Oct 2009 @ 5:19am

Re: Re: Re: Re: just stop.
The problem is that you speak with an alarmist tone, claiming to be an authority on the matter. By citing someone in agreement, you're claiming they're also strong authorities on the matter.

Yet it's blatantly obvious in the case that it was about a private for-profit copy shop, and no where in the entire court opinion did they mention 108... or libraries for that matter.

You regularly bash industry groups for coming up with garbage theories on various IP matters, but then when you drum up this psuedo-law alarmist "THEY'RE AFTER US!" bullshit, you think you're protected from taking flak. You're not.
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Dark Helmet (profile), 20 Oct 2009 @ 6:45am

Re: Re: Re: Re: Re: just stop.
Yeah, I hate saying this, but sorry Mike, busted on this one...
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LostSailor (profile), 20 Oct 2009 @ 7:49am

An Old Issue
At least in the US, this isn't a new issue at all. Copy shops have known--or should have known--for decades that copying textbooks or making course packs is illegal without the proper clearance. Which they can easily get (and most do) from the Copyright Clearance Center, whose primary purpose is to grant clearance and collect fees for just this sort of thing.

Libraries can also be covered by this, and most already have arrangements with the CCC. Publishers, especially academic publishers, have long worked with libraries on this issue. Those publishers have no desire to go after libraries, especially university libraries: the libraries are one of the publisher's biggest customers. And librarians are actually trained in this sort of thing.

Now, I know folks around here aren't big fans of licensing and fees when it comes to copyright, but it's a system in the academic world that has worked well for for over 30 years.
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LostSailor (profile), 20 Oct 2009 @ 8:15am

Corrections
Copyright Holders Shutting Down University Copy Shops; Libraries Need To Worry About Photocopier Infringement

Not that I don't appreciate sensationalist headlines as much as the next person but:

* These were not "university" copy shops. In both cases they were copy shops located near universities but were independent businesses.

* It is unclear from the linked articles whether any copy shop was actually shut down. Though the Canadian shop had it's equipment confiscated (and I don't see in the linked post where they were "gleefully" confiscated) and will find it difficult to do business, the post doesn't say it was closed. Even if it was, it should be "shutting down copy shop". The one in Michigan hasn't been shut down. The court hasn't even heard motions on damages yet.

* The Michigan court decision specifically notes (and the defendant copy shop specifically asserted) that the university has agreements in place that allow student copying (though apparently not all of the works in question were covered by the license). If the students did the copying on campus, this wouldn't have been an issue. So, no, libraries don't need to worry. Sen's (and by reference Peter Hirtle's) speculation that they might need to worry is just that, speculation.
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Your Friendly Neighborhood Librarian, 20 Oct 2009 @ 9:15am

Not really an issue
I would happily hand off every copier in my library to the copyright police if it meant I could fill my open staff positions frozen due to budget issues. It takes people to run a library. Copiers are not a necessity. Even in academic libraries copiers are a crutch to a convenience-focused culture. I only remember one article I read during graduate school that I actually searched out to re-read after I graduated. I never needed any of the copies I made. I wanted the convenience of my own copy.
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Anonymous Coward, 20 Oct 2009 @ 10:34am

Re: Re: Re: Re: just stop.
Intellectual property maximists tend to be jerks. Yes, people tend to be jerks back. When you treat people like trash they will treat you like trash. If intellectual property maximists were interested in serious discussion then people would treat them nicer. But they're not, they're only interested in being jerks and serving their own selfish desires.
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Anonymous Coward, 20 Oct 2009 @ 5:14pm

Sensationalist, overreaching, hyperbole scare mongering FTL.
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Carlos Ovalle (profile), 20 Oct 2009 @ 5:49pm

Libraries & Copyright
If you read one of the sources of the original article- the one that expresses concern about protection for libraries- you'll find the Library Law blog and a post by Peter Hirtle. Peter Hirtle is very active in the area of copyright and libraries. He was on the Section 108 Group from the Library of Congress. He brought up the possibility that this court decision affects libraries' use of the 108 exemption. I take his concerns seriously.

http://blog.librarylaw.com/librarylaw/2009/10/bad-and-maybe-some-good-news-for-educati onal-fair-use-1.html
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Eric, 20 Oct 2009 @ 6:10pm

I just paid $140 for four textbooks. In a perfect world, these books would have been online for free in PDF format, and nobody would be worrying about money "lost" from this alternate teaching method.

It isn't for entertainment, it's for learning! Nobody should profit off of that!
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Anonymous Coward, 20 Oct 2009 @ 6:43pm

What else should "no one profit" from?

How far does this opinion of yours extend?
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Mike Masnick (profile), 20 Oct 2009 @ 10:35pm

Re:
Sensationalist, overreaching, hyperbole scare mongering FTL.

Except, as the very next commenter points out, it was none of the above.
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