Obscure(ish) Academic Fair Use Case Has Potential For Wide-Ranging Impact

from the fair-use-for-education dept

Thu, Jun 9th 2011 4:29pm — Nancy Sims

Recently, Tim Geigner had a post about the lawsuit concerning fair use at Georgia State University. Nancy Sims, the Copyright Librarian at University of Minnesota Libraries offered to write up a guest post delving into the deeper issues raised by this lawsuit.

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.

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.

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.

Update: Since this post was written, there have been some updates on the case, which you can read about here. It appears that the "nightmare scenario" has been avoided for now...

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Filed Under: copyright, fair use, universities

24 Comments

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:Lobo Santo (profile), 9 Jun 2011 @ 4:35pm

When,
Oh when will artificially inflated profit margins enforced thru legislation die their painful and well-deserved deaths?!?
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ltlw0lf (profile), 9 Jun 2011 @ 4:47pm

Coursepacks
Graduated in '99. Coursepacks were expensive (though tolerable.) Bought my last coursepack for Advanced Data Structures in Fall of '98 for $110 (which was over 500 pages in length.) Never spent more than that. Since the textbook for the class was about 400 pages long, and cost $218, I thought the coursepacks were a deal even though they were expensive, and I couldn't see why the textbook, which could be bought anywhere (in an older version, and we didn't even use that textbook much) for about $60-80,) was more than $100.

I'd hate to be a student now-a-days...I am sure everyone is raping them. A friend of mine who is still in college said he took out a loan for this year in college that was over the cost of his car, but he is a graduate student, and they get screwed even more.
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Anonymous Coward, 9 Jun 2011 @ 5:28pm

Argue that copyright is only about promoting the progress and since these uses are for educational purposes, their use promotes the progress. Argue for more use on a constitutional basis, especially since this use is academic in nature and so is more directly related to the promotion of progress, the very purpose of copyright law.

Argue that a future of students who are better education would lead to more and better jobs and more technological advancements and that more fair use is needed to promote the progress of a more prosperous future. More educated employees mean more industry efficiency and that's good for industry and for the public.
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Anonymous Coward, 9 Jun 2011 @ 5:34pm

Re:
and without this additional fair use, the same level of education would need to cost students more. Either the schools will have to cut down on the material that they offer students, which harms those students education (and that ultimately harms industry when they hire students who aren't as educated), or the schools (or students) will have to pay more for an equivalent amount of material (and, of course, schools will invariably roll these costs back down to students one way or another) and these higher costs mean that fewer students can afford an education, which would mean that businesses would have a labor market with fewer educated employees later down that line which hurts them. That's not how progress is promoted.

I never seem to see the constitutional progress promotion issue raised when it comes to these court cases, someone should bring it up.

But since the government is for big business, by big business, link the educational necessity back to how it helps (big) business.
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Anonymous Coward, 9 Jun 2011 @ 5:35pm

Re: Re:
"later down that line" should read later "down the line"
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The Original Anonymous Coward (profile), 9 Jun 2011 @ 6:33pm

They are suing themselves out of business
As an instructor of college IT courses, I gave up on publishers years ago. The lab manuals, course packs, work books, and sometimes even text books, at least in the applied subject areas, are getting higher in glitz and graphics and at the same time lower in quality.

It took a while but I basically wrote all the stuff myself that I need to accompany whichever text book I selected for a course. I've been fortunate that when I've had to change text books (due to a new edition being released or a book no longer being available) the editing I had to do to my material was minimal.

Once it's written, it's converted to PDF and posted to our school's instructional management system for viewing and download by the students. No muss. No fuss.

It was a pain in the beginning but it's paid off ever since.

The publishers are driving themselves out of business with over the top pricing and if they win this court case, they'll just increase the speed of the train wreck.

Instructors will stop using their material out of fear of litigation. Schools will implement draconian anti-copyright-violation rules and regulations. Students will find ways to pirate (Oh No!) the information. It might be time that the hard-copy text book publishers go the way of buggy whip manufacturers.
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Anonymous Coward, 9 Jun 2011 @ 8:16pm

Sadly, there is a very big difference between a photocopy and an e-copy of a book. Basically, a photocopy is not a perfect replica, rather it is an obviously degraded copy of the original, which in turn will be further degraded if it is copied onward.

Ecopies would be perfect copies, and could be perfectly copied on and again without any degradation.

It would be very hard for the courts to find in favor of widespread, unchecked production of exact duplicates of the original work.
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Anonymous Coward, 9 Jun 2011 @ 8:20pm

I was working at Kinko's on University of Pennsylvannia campus when this started to come down in 1989 or so. We had amazing income on the course packs before that. I remember working well over 200 hours in a month at the beginning of the year.

Clearances were gotten one by one with calls to the publishers. I just remembered how harried the people who coordinated this were.

I can't see how this gets controlled in the age of ipads, kindles and jpgs.
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Anonymous Coward, 9 Jun 2011 @ 8:30pm

Re: They are suing themselves out of business
"As an instructor of college IT courses, I gave up on publishers years ago.

...

It took a while but I basically wrote all the stuff myself that I need to accompany whichever text book I selected for a course."

That's not a solution.
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The Original Anonymous Coward (profile), 9 Jun 2011 @ 9:28pm

Re: Re: They are suing themselves out of business
Some may not consider it a solution. I consider it more of a workaround.

When the government and/or cartels want you to do something, just do it. In this case they don't want people copying their products. OK - don't copy them. In fact, don't even buy them. That will solve the entire problem.

Either write the material yourself or purchase it from someone who doesn't place restrictions on how the material is used.

I remember back a million or so years ago when I was an undergrad and the professors were slapping the same publisher-provided transparencies on the overhead projector for years on end. These matched the publisher-provided lab manuals and study guides and it made "teaching" the course much easier for the profs. When I got into the Ed Biz, I decided that was one thing that I would not do.

It's a free market place. Instructors and students are free to not use material bearing suffocating and unworkable restriction.

Write your own stuff...
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Anonymous Coward, 9 Jun 2011 @ 10:01pm

Re: Re: Re: They are suing themselves out of business
"When the government and/or cartels want you to do something, just do it. In this case they don't want people copying their products. OK - don't copy them. In fact, don't even buy them. That will solve the entire problem.

Either write the material yourself or purchase it from someone who doesn't place restrictions on how the material is used."

You haven't read what I wrote.

Regulatory capture will make sure that your solution does not solve the problem. More broadly based patents will be awarded and granted so as to cover any piece of software that you can write. Other laws will be passed to make it difficult for you to work around the problem.

No, we need to take a more direct approach, we need to more strongly resist and protest these oppressive laws.
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Anonymous Coward, 9 Jun 2011 @ 10:11pm

Re: Re: Re: Re: They are suing themselves out of business
Or laws will be passed in the name of "protecting against errors". The law will make it more difficult for you to write your own text under the pretext that it needs to get someones or some corporations approval (or that it needs to meet some minimal notarized approval standard) before being published to avoid factual errors and misinformation and to help ensure that the book is well rounded and easy to read and understand by officially ensuring that several people contributed to it. The law will have some convoluted way of formulating this requirement in such a way that makes it effectively difficult and expensive for you and a bunch of peers to meet these standards, but one that effectively benefits specific corporate interests. They're doing it for the students, they want to make sure that they're taught correctly.

Your solution is no solution. The moment it starts threatening corporate profits, laws will be passed to 'fix' that problem.
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Anonymous Coward, 9 Jun 2011 @ 10:20pm

Re: Re: Re: Re: Re: They are suing themselves out of business
(and of course a counter argument to much of this is that if the teachers are good enough to teach the class, why aren't they good enough to write the book? But don't let reasoning stop politicians from passing bad laws.

They will likely claim that a lot of expensive psychological research goes into figuring out how to best write the book so that people can more easily learn and that, while teachers know the subject, they don't know the psychology behind how to write a book, etc... I've heard that argument before and I do agree that teachers aren't always good at writing books that can be easily understood by novices and having someone who specializes in this sort of thing is important, but politicians and industry will completely blow the costs out of proportion).
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The Original Anonymous Coward (profile), 9 Jun 2011 @ 11:36pm

Re: Re: Re: Re: They are suing themselves out of business
But I'm not talking about writing software. I'm talking about using my notes, my sketches, my outlines, stuff that I write, to teach students certain skills.

The main post that started this chain was about publishers wanting to restrict the use of materials that colleges previously reproduced for use by their students. If those restrictions become unacceptable, one simply has to stop using the materials.

While I do agree with you that laws and rules implementing these sort of restrictions need to be resisted, in a profit-driven world the ultimate resistance is to simply not buy their stuff.
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The Original Anonymous Coward (profile), 9 Jun 2011 @ 11:45pm

Re: Re: Re: Re: Re: They are suing themselves out of business
If the world ever does come to this rather distressing level of oppression, then we'll just have to revert to the style of instruction used by the Greeks, Romans, and other ancient teachers. It's called "verbal communication."

Should your prediction come true and if I am still in the teaching profession, I will simply talk to my students and describe what they need to do. Now in today's world of graphically-oriented, touch screen user interfaces that may be a bit challenging, but I'd be willing to give it a try.

:D

Now if my lectures would have to first pass some board of review straight out of 1984, by that time the world will be so bad off that government approval of a lecture on the practical application of doubly-linked lists would be the least of my worries.
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Anonymous Coward, 10 Jun 2011 @ 3:19am

Re: Re: Re: Re: Re: Re: They are suing themselves out of business
"If the world ever does come to this rather distressing level of oppression"

What are you talking about, we're already there. Haven't you noticed? IP and FCC regulations have only expanded over the past couple of decades in a way designed to reduce competition.
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Anonymous Coward, 10 Jun 2011 @ 3:23am

Re: Re: Re: Re: Re: Re: They are suing themselves out of business
"Should your prediction come true and if I am still in the teaching profession, I will simply talk to my students and describe what they need to do."

Trust me, the government will just find a way to pass laws that make this unfeasible without paying some parasitic third party anything. Look at restaurants and other venues that want to host independent performers, for example. The law discourages them from doing so without paying some parasitic third party licensing fees under the pretext that someone might infringe. Any scenario you think of, the govt will simply pass monopolistic laws to make sure the parasitic monopolists benefit.
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Anonymous Coward, 10 Jun 2011 @ 3:27am

Re: Re: Re: Re: Re: They are suing themselves out of business
"I'm talking about using my notes, my sketches, my outlines, stuff that I write, to teach students certain skills."

Makes no difference, the laws will simply adjust to make these parasitic monopolists relevant no matter what. That's what's been happening over the past couple of decades, after all.

"If those restrictions become unacceptable, one simply has to stop using the materials.

...

in a profit-driven world the ultimate resistance is to simply not buy their stuff."

Again, that's not a solution. The legal system will simply adapt to make sure of it.
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Additional Anonymous Coward #3, 10 Jun 2011 @ 4:18am

Re: Re: Re: They are suing themselves out of business
"Either write the material yourself or purchase it from someone who doesn't place restrictions on how the material is used."

There is a third option.
Text books and course material may be created in the same manner that Wikipedia is.
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JEDIDIAH, 10 Jun 2011 @ 8:43am

Tannenbaum et al.
Much of the source material for the textbook industry is already being written by the professors already. Academia could suddenly decide to bypass the publishers entirely and go straight to electronic distribution.
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The Original Anonymous Coward (profile), 10 Jun 2011 @ 9:50am

Re: Re: Re: Re: Re: Re: They are suing themselves out of business
So you are saying that if I am sitting in my house talking with some of my students, the police will come, take me to a book store, make me buy a book, take me back home, and at gun point force me to read from it when interacting with my students?

If you were able to turn that plot line into a novel, you might make some cash!

:D
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Bnesaladur (profile), 11 Jun 2011 @ 9:40am

Re: Re: Re: Re: Re: Re: Re: They are suing themselves out of business
@Original

You beter copyright that plot line before someone else uses it. Make sure you come up with every possible variation and do some copyrighting on those as well ;)

Really though, I am trying to go to NAIT, unfortunately I simply can not afford too because of the costs. I get a lot of "well take out a loan" but in the words of the non-original AC, that "is not a solution." I know the loans are designed for students but the fact of the matter is simply that a system designed to force people into debt creates an unstable economic system as a whole. Cheaper books and coursepacks would be a start in taking the debt load off of people trying to develop their skills to help improve the world.
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Androgynous Cowherd, 11 Jun 2011 @ 5:29pm

Does anyone else find this stuff disturbing?:

...readings posted on course websites (i.e., uploaded by instructors and accessible only to students registered for a course) ...

..."e-reserves" (i.e., shared online through university libraries, usually also with access restricted to students registered for the course) ...

... how much coursepacks currently cost students - as much as $500 per pack!

Access restricted. Access restricted. Expensive.

These are our halls of higher education. Restricting access to information to only certain people, or to only the filthy rich as a class, appears to directly contravene the intended purposes of such institutions.

If you ask me, schools and universities, at least those that receive federal funds, should be "IP free zones" -- nothing that happens on or is located on the premises can be an infringement of either copyright or patent.
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Jon, 1 Feb 2013 @ 5:26am

Big Copyright
It's scarcely surprising, surely, that the administration responsible for forcing through the NDAA, which puts an end to the US Constitution and is the equivalent of the 1933 Enabling Act in Germany, is in favour of profit before freedom?

All keen legal scholars in the US (plus anyone thinking of becoming a lawyer) needs to memorize the list of Democrat/GOP donors as a sine qua non before embarking on such a career...
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