Fair Use Protection For Learning Should Be Applauded, But Not Limited To Universities

from the good-news dept

Wed, Oct 24th 2012 3:04am — Mike Masnick

Following the recent pro-fair use rulings concerning Georgia State's e-reserves and book scanning efforts by a bunch of colleges and universities in the HathiTrust case, Siva Vaidhyanathan has a good article pointing out that these two rulings recognize that universities are "vast copy machines" and that's a very good thing.

...these cases strengthen the claim that universities and their libraries have a special place in copyright law because they have a special place in society. Courts and even Congress have long acknowledged the essential role of copying in the educational process. That’s why the preamble to the section of the 1976 U.S. Copyright Act that outlines “fair use” specifies “teaching (including multiple copies for classroom use), scholarship, or research” as examples of “fair uses”—uses that, although they involve the copying of protected material, are considered noninfringing because they enable essential public goods.

Universities are not copyright-free zones—far from it. But they do perform special services that often demand flexibility and liberties that enable them to “promote the progress of science and useful arts,” the core mission of copyright as declared by the U.S. Constitution.

I actually think that Siva underplays the importance of learning in copyright -- as that was its original intent. The Constitutional clause concerning copyright talks about "promoting the progress of science" -- which at the time it was written meant "learning," and the very first Copyright Act in the US was actually entitled "An Act for the Encouragement of Learning."

That said, I'm a bit disappointed that Siva then takes that storyline even further to suggest that universities deserve special protections against copyright enforcement that should not apply elsewhere. For example, he insists that while the HathiTrust ruling finds fair use for universities in scanning books (even if the scanning is done by Google) it should not apply to Google scanning books itself:

In any event, we are never going to see that operatic courtroom showdown between Google and publishing industry over whether the sweeping scanning of millions of books for explicitly commercial purposes constitutes a fair use by Google. I have written many times over the years that I am dubious of the strength of Google’s argument, and nothing in either the settlement news or the HathiTrust case has undermined my conclusion.

... Google is not a library. It is not a university. It is not a public service. It is a business. Too often we forget those distinctions. The project of creating, maintaining, and offering vast collections of digital material should be something that universities and libraries control, not something we depend on one company to handle.

I have long argued exactly the opposite, that Google's book scanning project should absolutely be seen as fair use as well. The use is clearly transformative and most of the evidence suggests it increases, rather than harms, sales. But, more importantly, it really is creating a tremendous library index that will help people find information and learn. I think Siva is going way too far in suggesting that universities should get special treatment. People learn from all sorts of places, not just universities. And we shouldn't carve out special rules for universities that, by default, harm those who do not attend or cannot afford to attend those universities. Part of the wonder of something like Google's book scanning project (and other similar projects, such as the one by the Internet Archive) is that it helps make these works accessible to all -- and we should be encouraging that for the sake of learning across the board, rather than just for a few institutions.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, education, fair use, learning

23 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 24 Oct 2012 @ 3:28am

'we should be encouraging that for the sake of learning across the board, rather than just for a few institutions.'

well said. learning is learning and should never be limited only to the place, the subject, the method or the student. the next thing, God forbid, there will be more children shot in the head for wanting to learn!
[ link to this | view in thread ]
The eejit (profile), 24 Oct 2012 @ 3:37am

Hang on, let me get this straight:

Fair use only applies at the Further Education level mostly automatically?

But education starts when a person is born. So my question is this?

Why are you not allowing copying by all achools?
[ link to this | view in thread ]
Zakida Paul (profile), 24 Oct 2012 @ 3:41am

Education starts when we are born and ends when we die, so fair use should always apply.
[ link to this | view in thread ]
Anonymous Coward, 24 Oct 2012 @ 4:11am

Re:
Not always. There are those people that stubbornly refuse to learn new things. Like the folks at the MAFIAA.
[ link to this | view in thread ]
Zakida Paul (profile), 24 Oct 2012 @ 4:28am

Re: Re:
Even they are learning all the time, they are constantly learning new ways to screw over content creators and fans.
[ link to this | view in thread ]
Anonymous Coward, 24 Oct 2012 @ 4:44am

From his previous writing, Siva doesn't particularly like Google's scanning project -- essentially, as I recall, because he thinks the huge scale of the project is such that it will effectively only be done once -- and Google will end up with a defacto private monopoly that operates outside public laws and the public interest. I disagree, but that aside, note that Siva has a history with the G.
[ link to this | view in thread ]
Anonymous Coward, 24 Oct 2012 @ 4:52am

Re: Re: Re:
Mutations are learned?
[ link to this | view in thread ]
out_of_the_blue, 24 Oct 2012 @ 6:04am

Google already gets special privileges of other kind.
"Google is not a library. It is not a university. It is not a public service. It is a business." That last word means, for instance, that with some tricks it pays 2.4% tax rates!
http://www.bloomberg.com/news/2010-10-21/google-2-4-rate-shows-how-60-billion-u-s-revenue-lo st-to-tax-loopholes.html
Wouldn't we all like to pay that rate?

Google already has enough privileges, Mike. Neither Google nor any person except the copyright owners has a right to get income from those works, and that's the crucial distinction. -- You keep trying to advance corporations, to make it so they have only privileges without drawbacks, clearly want corporations even more advantaged over we mere "natural" persons.
[ link to this | view in thread ]
DUMBASS POLITICIANS, 24 Oct 2012 @ 6:19am

Disabled at home learning
Disabled at home learning....nuff said.
[ link to this | view in thread ]
Anonymous Coward, 24 Oct 2012 @ 6:36am

Re: Google already gets special privileges of other kind.
In most cases the copyright owners are corporations, and are famed for not paying the creators of content. This is particularly bad in the Academic world where Academics write the papers, referee the papers and Edit the paper at no cost to the publishers, who then charge the same academics a large fee to gain access to this work.
[ link to this | view in thread ]
redrum, 24 Oct 2012 @ 7:04am

Re: Google already gets special privileges of other kind.
Lefties kill me sometimes.. Corporation BAD! Profit BAD! Income BAD! Lower Taxes Than Me BAD! So envious.

Someone had to take the initiative to preserve all of these books. And if libraries weren't doing it (which they weren't) why is it automatically bad that a private enterprise with vast resources does it?

And advancing corporations is a good thing, we all need to work somewhere.
[ link to this | view in thread ]
The eejit (profile), 24 Oct 2012 @ 7:07am

Re: Re: Re: Re:
IN Hollywood, sure.

Case in point: Tom Cruise.
[ link to this | view in thread ]
The eejit (profile), 24 Oct 2012 @ 7:08am

Re: Google already gets special privileges of other kind.
Not just Google, moron - a wide range of companies, from NBC Universal to Microsoft to News Corp.
[ link to this | view in thread ]
jupiterkansas (profile), 24 Oct 2012 @ 8:12am

Re: Google already gets special privileges of other kind.
Neither Google nor any person except the copyright owners has a right to get income from those works.

So wrong. Fair use is fair use no matter who you are, what your motive is, or whether you profit from it. Everyone has a right to income from fair use.

The only right copyright owners have is the right to make copies (not a right to profit) and other people can supercede those rights in cases of fair use.

Please stop pretending that fair use doesn't exist.

And if Google's paying a 2.4% tax rate, that's the tax code's problem, not Google's. Yes, we would all pay that rate if we could.
[ link to this | view in thread ]
DH's Love Child (profile), 24 Oct 2012 @ 8:21am

Something else he misses
"Google is not a library. It is not a university. It is not a public service. It is a business."

Universities are also businesses. They are in business for the purpose of educating, but they are businesses nonetheless.

And lest we forget that universities have become more and more influenced by corporate interests over the last 3 decades. The cost of attending college has increased at (at least) an order of magnitude more than inflation in the last 30 years and that money is not going to professors (educators), but to administrators (businessmen).
[ link to this | view in thread ]
Anonymous Coward, 24 Oct 2012 @ 8:54am

Keeping the price of books high, and preventing their access on the Internet, gives greater power to various religious figures. It also helps to keep those countries poor, and makes it easy for extremist organizations to destroy what few book there are in a country that do not agree with their views.
The need in place like Afghanistan and Iran for instance, is to educate the general population so that they have a future. Restricting knowledge to an elite, or blocking all access, is a dangerous practice. Desperate people do desperate things, and are easier to convince to carry out suicide missions.
Making knowledge available so that people can help themselves is by far the best answer to many of the worlds problems, far better in the long term than any relief efforts carried out by charities.
[ link to this | view in thread ]
John Fenderson (profile), 24 Oct 2012 @ 9:04am

Re: Re: Google already gets special privileges of other kind.
I'm not sure what you mean by "lefties". From your description, it you certainly don't mean "liberals".
[ link to this | view in thread ]
jupiterkansas (profile), 24 Oct 2012 @ 9:06am

Re: Something else he misses
Not to mention there are private universities.
[ link to this | view in thread ]
James Burkhardt (profile), 24 Oct 2012 @ 9:28am

Re: Google already gets special privileges of other kind.
The most prestigious Universities? the ones with budgets to do things like this? Private companies. They might not have a clear profit motive, but that is only because of how we define non-profit. If i am making a million a year as president of a university, with a bonus if we come within budget, then I have a profit motive, even if the school 'doesn't'.
[ link to this | view in thread ]
Anonymous Coward, 24 Oct 2012 @ 9:32am

Re: Google already gets special privileges of other kind.
""Google is not a library. It is not a university. It is not a public service. It is a business." That last word means, for instance, that with some tricks it pays 2.4% tax rates!"

Which is itself not a crime. The fact that tax law is written to allow businesses to take advantage of it to their benefit is not in any way illegal. Is it wrong? To some it is, to others it isn't. That's subjective.

Also, that article you quoted is severely out of date. But if you'd like, I have no problem listing CURRENT tax rates of certain corporations that aren't Google. All of whom actually get checks from the government, ranging from half a million to hundreds of millions of dollars. How do they do this? By using tax law to their advantage, all while off shoring labor and production cost.

"Wouldn't we all like to pay that rate?"

Yes, we would. The fact that we can't for whatever reason isn't enough of one to hold against Google or any business for that matter.

"Google already has enough privileges, Mike."

So does any other business, but that it's Google (and Mike writing about it) has you foaming at the mouth.

"Neither Google nor any person except the copyright owners has a right to get income from those works, and that's the crucial distinction."

False. Provably so. If something can be defined and declared as fair use, even if profitable to someone either than the copyright holder, in no way is that wrong and much more importantly in no way is it illegal.

Also, in point of fact, no one has the right to get income from using copyrighted works. Including copyright holders/owners. All copyright law allows for is the right to copy. Nothing else. You seem to be misconstruing what copyright law is to mean something you want it to, namely the right, and entitlement, to profit.

In no business is anyone, much less a copyright owner, entitled to any income. It must be earned. But it is not something automatically guaranteed, much less protected. Which is a crucial distinction that you need to familiarize yourself with before you go on another anti-Google/Mike rant and attempt to spin "facts" to suit your argument. (Which is sad considering how bad a job of it you do, that even a minute's effort can lead to anything you say being debunked with ACTUAL facts and evidence.)

"You keep trying to advance corporations, to make it so they have only privileges without drawbacks, clearly want corporations even more advantaged over we mere "natural" persons."

No, Mike is not trying to do that. In point of fact, there are articles in the hundreds (and thousands) that argue against corporations having privileges without drawbacks, and article and article (written by Mike) calling for the needs and wants of the people to be placed BEFORE the needs/wants of ANY corporation.

The strawman built up in your head of Mike is most definitely not in line with Mike as he is. Please correct your strawman version of Mike to be ACTUALLY in line with the real one, that or start READING THE F*CKING ARTICLES you see fit to comment on and understanding them before you do so (comment that is). It'll save me and others the time of having to call you out for being wrong.
[ link to this | view in thread ]
Anonymous Coward, 24 Oct 2012 @ 4:49pm

"The project of creating, maintaining, and offering vast collections of digital material should be something that universities and libraries control, not something we depend on one company to handle."

There's only 1 way to find out. If companies knew they were allowed, who know's what they'd do. When businesses see opportunities they take them, and the amount of competition to google is increasing not decreasing.
[ link to this | view in thread ]
Anonymous Coward, 24 Oct 2012 @ 5:41pm

As an aside, if you work with old books (copyright expired, public domain), Google Books is pretty much completely useless outside the US.
[ link to this | view in thread ]
Anonymous Coward, 25 Oct 2012 @ 4:29am

Internet Archive
"the one by the Internet Archive"

Link please?
[ link to this | view in thread ]