Obama Administration Considers Joining Publishers In Fight To Stamp Out Fair Use At Universities

from the pure-insanity dept

Thu, Jan 31st 2013 9:55am — Mike Masnick

Okay, this is really quite unfortunate. In 2011, we wrote about an important copyright case involving three publishers suing Georgia State University for daring to have "e-reserves" that allow professors to make certain works available to students electronically via the university library. Nancy Sims, copyright librarian for the University of Minnesota, wrote a guest post summarizing the case for us as follows:

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.

Thankfully, last year, we wrote about how the district court issued an astounding 350-page ruling that basically said that most of these electronic reserves were clearly fair use. We had some issues with the way the judge went about the analysis -- often coming up with random and arbitrary standards for the amount of a work that could be used while remaining fair use, but, on the whole, it was good to see the judge support fair use relatively strongly (and, in some cases, to not even get to a fair use analysis by saying that the use was allowed as "de minimis" copying).

Of course, no matter what happened, the other side was going to appeal. We're getting closer to the appeals court hearing the case, but something interesting popped up last week. In a somewhat surprising move, the Justice Department jumped in and asked the court for some more time for the filing of amicus briefs from concerned third parties, because it was considering weighing in on the case. The Justice Department? Why should it be interested in a dispute concerning whether or not public university libraries are engaged in fair use by making works available to students?

In digging into this, we've heard from a few sources that it's actually the US Copyright Office that has asked the DOJ to weigh in on the side of the publishers and against the interests of public univerisities and students. Yes, the same Copyright Office that just promoted a former RIAA VP to second in command. I'm sure that's just a coincidence.

Let's be clear: it is flat out ridiculous that the Obama Administration may be supporting the publishers here. Two out of the three publishers are foreign publishing giants, and it would be supporting them against a public university library tasked with helping to educate students. The entire purpose of copyright law is supposed to be to promote the progress of learning. The copyright clause in the Constitution used "science" but back in that era "learning" and "science" were effectively synonymous. The very first Copyright Act in the US was actually titled "An Act for the Encouragement of Learning." Current copyright law is explicit that fair use covers this sort of situation:

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

And yet... these publishers, along with the US Copyright Office and (perhaps) the DOJ, would like to ignore all of this, and reject fair use in such public learning centers? It is ridiculous. Oh, and did we mention that the lawsuit by these publishers is really being funded by the Copyright Clearance Center (who, shockingly, would be in charge of collecting fees for such uses...) and the American Publishers' Association? If the Obama Administration wanted to appear any more in the pocket of "Big Copyright" and against the public interest when it comes to learning and education, I'm not sure of any better position to take.

This is just a year after the SOPA fight, and it appears that the Copyright Office, led by Maria Pallante, who was a massive supporter of SOPA, has not learned the lesson of that debacle. It would be a travesty if the Justice Department listened to such an out of touch position and argued that the court should reject fair use in such scenarios.

It would be a complete embarrassment for an Obama administration that has argued that improving our education system is a key policy issue to turn its back on education by having its Justice Department argue against a public university library and students, and in favor of a blatantly self-interested copyright collection agency, funding some foreign publishers, trying to shake down students for extra money to learn. Just the fact that the US Copyright Office is supporting this and asking the Justice Department to make this move is a sign of how screwed up the Copyright Office is today. And it remains unclear why this is even an issue that concerns the Justice Department at all. Since when is access of students at a public university to educational materials an issue that should be of any interest to the Justice Department?

For what it's worth, we've heard that the people in the Justice Department who are considering its position are talking to various government agencies and officials over the next few days to determine what its final position should be. We would hope that the Justice Department, and the wider Obama administration (including the Copyright Office), take into account what happened last year when SOPA was put forth and the government sought to use copyright law to limit the public's rights. It would seem unwise to then take a position that might stir up significant interest, specifically when it involves something as ridiculous as supporting foreign publishers over public university students seeking reasonable fair use access to educational materials, as is clearly supported by the Copyright Act.

GSU Motion for Extention Amicus US Govt (PDF)GSU Motion for Extention Amicus US Govt (Text)

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Filed Under: copyright, copyright office, doj, fair use, learning, libraries, obama administration, publishers, universities
Companies: georgia state university

57 Comments

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Jeff (profile), 31 Jan 2013 @ 9:06am

This is why our schools turn out idiots that "WANT TO DEBATE ME" - unbelievable...

Schools - "we need to cut back our costs"
Publishers - "PAY US MOAR!!"
Schools - "Well then we'll have to cut back our curriculum"
Publishers - "PAY US MOAR!!!"

I weep for the future... because of our present...
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Ninja (profile), 31 Jan 2013 @ 9:14am

From Article I, section 8 (http://www.archives.gov/exhibits/charters/constitution_transcript.html)

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

How depriving students of knowledge fits in that definition again? Unless the US is planning to outsource the brilliant minds to China/India as they do with telemarketing this doesn't make sense. At all.
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Ninja (profile), 31 Jan 2013 @ 9:19am

Also:

It would be a travesty if the Justice Department listened to such an out of touch position and argued that the court should reject fair use in such scenarios.

The same ones involved in illegal domain seizures? The same ones behind the Megaupload illegal procedures?
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Skeptical Cynic (profile), 31 Jan 2013 @ 9:27am

University's are stupid
Why have the Colleges and Universities of this country not sought out and promoted more open methods of getting the text books they need for education?

I am sorry but I hate the restrictions that are imposed on students. I left a big Online College where I was working for a second Masters degree because they switched from requiring us to buy the text books with e-book access for each class to requiring us to pay the same amount of money for a e-book only version that had zero resell possibly.

Even worse I lost access to the books I did pay full price for because the DRM scheme involves logging in to your student account. So over $400 dollars for e-books that I can not ever resell (if I don't want to read them again) and re-read if I want to reference again.

So back to my original Title. Universities and Colleges are either getting big kick backs to mot properly serve their students or they are stupid.
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Josh in CharlotteNC (profile), 31 Jan 2013 @ 9:47am

Re: University's are stupid
Why have the Colleges and Universities of this country not sought out and promoted more open methods of getting the text books they need for education?

Money.

Many of the professors write the books.

The bookstore sells the books and makes a profit on them.

Other costs are just passed on to the students in fees and increased tuition.

The students pay the costs of the books - but it is mostly covered by student loans anyway.

On the other hand, fighting against this costs money for lawyers and lobbyists.
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Skeptical Cynic (profile), 31 Jan 2013 @ 10:01am

Re: Re: University's are stupid
Yeah too true. But those Student loans have to be repaid and for my second masters those costs were over $1250 just for the books. That total is after what I got for reselling the books that I did not want or could not keep.

I think this is a golden opportunity for those Class Action Sharks to jump in and get their 97% fee but in this case is may not give any money back to those that over paid but might help those that come after.
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Anonymous Coward, 31 Jan 2013 @ 10:06am

Optimist!
You're hoping the Justice Department thinks this through.

The very SAME "Justice" Department that murdered Aaron Swartz by driving him to suicide?

Meh.
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Anonymous Coward, 31 Jan 2013 @ 10:08am

Of course it makes sense that the DOJ sides against our public schools.

Public Education has been the #1 victim of budget cuts practically every single year for over a decade, to the point that we spend 7 times as much per prisoner in the justice system then we do per student in our schools.

This years ways of screwing over education even more are the following.

-Force schools to add armed security guards to their staff in the name of protecting students. Because despite all the NRA's and their politicians advocating for this you'll notice they NEVER suggest how to pay for it, which means the way to pay for it is lay off more teachers to hire armed guards.

-Make schools pay even more money for IP textboxes needed to teach students.

-Take more money away from public schools and give it to private schools, but do allow those private schools to say 'no' to educating your children for whatever reason they want, like your child having bad grades that would lower the school's GPA they use to claim that they're a better school then the public schools.
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Anonymous Coward, 31 Jan 2013 @ 10:09am

opps, I met 'IP TextBOOKS', not 'textboxes'.

Guess that's what happens when I write up comments in between designing a GUI.
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Anonymous Coward, 31 Jan 2013 @ 10:17am

It is 2013
Isn't it time to get rid of fair use already? Everyone knows life is not fair. Let's focus on what is important now... making money and working towards a global government that takes care of everyone and makes life safe and secure.
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Anonymous Coward, 31 Jan 2013 @ 10:19am

Lack of skilled people is a problem your country already appears to have, and if the publishers gave their way the problem will get worse, and industries will move to other countries.
The various open textbook efforts are the way to deal with this problem, so long as the publishers don't kill by suing them out of existence. Unfortunately copyright law make this possible by claiming copyright infringement for 'short quotes'.
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Zakida Paul (profile), 31 Jan 2013 @ 10:31am

Makes sense
It is the same as in the UK where politicians want to create a two tier class based education system. The best education and resources is reserved for the wealthy and the plebs get the shaft.
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Anonymous Coward, 31 Jan 2013 @ 10:37am

Re:
There's a concerted effort int he US to defund all education and have tons of near-mindless sheep, instead of, y'know, people.
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Anonymous Coward, 31 Jan 2013 @ 10:39am

We need to better educate America!

Here's the plan:

Disallow the use of sample texts in classrooms.
No supplemented articles allowed.
Make the students pay per book openend in the Library.
Get rid of story problems, unless students pay for access to those.

And most importantly: Don't forget to claim that we're doing this to better educate the students in America!!!
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gorehound (profile), 31 Jan 2013 @ 10:39am

Big Money is going to decimate and destroy our Great Civilization and this proves to me what I already knew and believe in.
Simply put:
History is doomed to repeat itself !!!
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John Fenderson (profile), 31 Jan 2013 @ 10:41am

Re: It is 2013
Not sure if you're being funny or not. I've decided "funny".
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bob, 31 Jan 2013 @ 10:43am

Re:
Uh, the schools are the ones that keep saying "Pay Us More!" A $200 sounds expensive unless you compare it to the price of a course at a university. That's often $3000-5000 and it often doesn't cover half of the book.

If you look who is really going after the students' pockets, it's the schools themselves. Their tuition is up 3-5 times after accounting for inflation. Books are about the same after inflation.
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dennis deems (profile), 31 Jan 2013 @ 10:50am

"a complete embarrassment for [the] Obama administration"

By now I think it's well established that the Obama administration is incapable of feeling embarrassment.
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Anonymous Coward, 31 Jan 2013 @ 10:55am

what all governments really want to do is force all us plebs to work at least 16 hours/day, 7 days a week, not be paid anything just given a blanket for sleeping, 1 meal and a cup of water per day and then have to ask permission to eat and drink. all the time this is happening, the governments and all their rich, famous, powerful friends would be swanning around doing naff all except thinking of ways to get more done, by less people, for less food and drink!
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Anonymous Coward, 31 Jan 2013 @ 11:13am

Re: Re:
Well, and how are university libraries costs and book costs not a big part of the economic costs of education?

Books may be receding in this context, since 50 % has moved online, which is where the publishers are giving offers the universities cannot refuse.

Btw. weren't you the Bob who was fired for having a chinese programmer make your work?
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Anonymous Coward, 31 Jan 2013 @ 11:16am

Re:
Promotion, including self-promotion, occurs all the time these days. All you need is a Facebook account.

So yeah, you could put all your ideas and discoveries in Facebook or maybe Wikipedia, or something else online. As long as google can find it, or is available as an app, promotion is taken care of.

The problem is that promotion via computer or technological means doesnt get people paid. It's an interesting dichotomy we live in. But these days, we're sending all our R&D efforts overseas, so the only ones getting paid are the outsourced workers because it costs too much to fly Chinese or Indian workers to East Texas for a court hearing on what Google Search Words were used to find someone else's crappy idea.

I'm all for getting paid, and hell, I think this rant should be on a T-Shirt. Looooooooooooooots of t-shirts, so send me a check before Masnick steals that too.
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Anonymous Coward, 31 Jan 2013 @ 11:19am

Re: Re:
Keep all government completely out of education! Higher education is indoctrination towards a liberal view of life!

If those issues can be the slogans in a political campaign, albeit primary, it is not surprising at all.
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Anonymous Coward, 31 Jan 2013 @ 11:50am

Re: It is 2013
No fair use would suite the publishers, as fewer of their take-downs would be questioned.
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Anonymous Coward, 31 Jan 2013 @ 11:51am

Re: Re:
The rising cost of tuition is a completely different issue, bob. Nice red herring you got there.
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Anonymous Coward, 31 Jan 2013 @ 11:54am

Uh...
"...teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

Doesn't that implicitly guarantee that teachers and other faculty ARE QUALIFIED to make determinations of fair use under the law?
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Sneeje (profile), 31 Jan 2013 @ 11:58am

Re: Re:
I can't decide if you are willfully ignorant or you really don't understand that phrase. "Promotion" means that in exchange for the government supporting your exclusive rights, you will do things that ultimately benefit the citizenship as a whole. You gain in the short term, everyone gains in the long term.

But folks like you seem to want it both ways. If you want to have an exclusive right to your content, you need to finance it privately, through your own income or through investors that agree to relinquish any rights to that content. You can't expect to receive public funding from colleges/universities or the government and also retain exclusive use of your content for a century.
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Anonymous Coward, 31 Jan 2013 @ 12:05pm

Re: Uh...
I think it means to imply that teaching itself is or should be fair use. That would make too much sense though, and this is law we're talking about... If Dickens had intended for children to rip off his work to stimulate their minds, he would have open sourced his stark world view.
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Anonymous Coward, 31 Jan 2013 @ 12:19pm

Re:
By now I think it's well established that the Obama administration is incapable of feeling embarrassment.

Its a proud heritage we have going back to every presidental administration after Ike, and probably most administrations before Truman. Kennedy, Reagan and FDR included (though perhaps the term limit was a late act of semi-self-awareness on FDR's part).
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shane (profile), 31 Jan 2013 @ 12:27pm

Progressive
It seems to me that most folks that frequent Tech Dirt would consider themselves progressive at least on this particular topic, and it is repeatedly dismaying to me to see that, even on those issues where I - a somewhat conservative person in times past, at least according to those who like to tag me - am a progressive, the Democratic party is not a viable alternative for me.
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Anonymous Coward, 31 Jan 2013 @ 12:58pm

Re: Re: It is 2013
More proof that Govt is the greater evil, as the sole authorizer of Monopolies. The evils of Govt are boundless, unless held in check, as the authors of the US�s founding documents warned us about.

So John �Mr. BIG Govt� Fenderson, are you still confessing that Govt is easier to control than Corporations - "if we had to choose between those two Bigs (and I don't think we do), then I choose Big Government. It's easier to fix the government (who is us) than major corporations (whose behavior we have little to no say in.)�"
Quote reference: John Fenderson �It's easier to fix the government�", regarding Monopolies.
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Watchit (profile), 31 Jan 2013 @ 2:44pm

Re: Re:
*dons tin foil hat*

The universities are in cahoots with the publishing industry to wring every last dollar out of the students!
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Watchit (profile), 31 Jan 2013 @ 2:47pm

This makes me so angry! And at the same time it just further justifies why I find my text books elsewhere rather than buy them from the publisher.
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harbingerofdoom (profile), 31 Jan 2013 @ 2:53pm

Re: Re: Re:
while its true that schools in fact are looking for more and more tuition, it is not a completely different issue. they are tied together and to try and separate them from eachother merely re-enforces the comment that jeff lead with.

you cannot simply ignore the fact that that what bob said is true, no more than you can just ignore the parts about *WHY* bobs simplistic statement, while being purposefully misleading, is still true.
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Anonymous Coward, 31 Jan 2013 @ 2:53pm

Re: Re: Re:
It goes WAY beyond just funding. You were correct in your first paragraph when you said "supporting your exclusive rights". That means if you want the government to back you when you complain about someone copying your work "FOR THE LIMITED TIME" then you not only need to secure your own funding but never share it with anyone so it might as well have never even existed as far as the public is concerned.
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Angry Voter, 31 Jan 2013 @ 2:56pm

Bribery and Corruption
While biotech and advanced physics may change from year to year math and English don't.

Requiring new math and English books every semester is simply the result of bribery and corruption.

Euclid's Elements is still the best work on geometry and it's been free for 2,000 years.
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Watchit (profile), 31 Jan 2013 @ 2:59pm

Re: Re: Re: Re:
So I think most of us can agree that the mentality of Publishers > Universities is "pay us moar!" and the mentality of Universities > Students is "pay us moar!"
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Anonymous Coward, 31 Jan 2013 @ 4:50pm

Re: Re:
And where do you think the schools are going to look for the money to cover these added costs if not the students?

Nice try with the 'hey look over there' tactic though.
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Sabrina Thompson (profile), 31 Jan 2013 @ 6:03pm

I think if people started to write to their congressman or women to get less strict copyright laws they may listen if enough people write. I emailed mine. With the way things are going with copyright law will there even be a fair use clause in the future. What about the 2nd circuit court ruling on the first sale doctrine? It seems consumers are being more restricted on what they can do with what they buy.

please check out abolish the copyright monoploly @ facebook to show support for less strict copyright
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MAC, 31 Jan 2013 @ 6:35pm

It's about control...
This administration thinks it a good thing for government to control everything.
Do you want 'them' in control of your life?
You apathetic excuses for american citizens.
You deserve what you get because of your laziness and refusal to take control of what's yours.

Your government.
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GreenPirate (profile), 31 Jan 2013 @ 11:32pm

Re: University's are stupid
Because fuck school. That's why.
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GreenPirate (profile), 31 Jan 2013 @ 11:33pm

Re: Optimist!
:( The DoJ literally is the same content rights cartel that is keeping copyright law alive.
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That Anonymous Coward (profile), 1 Feb 2013 @ 12:42am

So how much will this matter when the Education Debt Bubble collapses? There is so much money being made shoveling debt onto students so they can "get ahead", which infact is just burying them into lifetime servitude paying back loans.

Everyone needs to make a buck, IP is our most valuable asset... so we need to make it worth more.
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Ninja (profile), 1 Feb 2013 @ 2:33am

Re: Re:
I... Wait, what?
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Rekrul, 1 Feb 2013 @ 3:54am

The entire purpose of copyright law is supposed to be to promote the progress of learning.

No, that was the purpose of copyright law when it was first created. That hasn't been its purpose for many, many years now. Today, the entire purpose of copyright law is to benefit the copyright holders. This is the definition that the government goes by. Nobody in the US government cares about the public as far as copyright is concerned (or at least not enough to make a difference). All they care about is keeping the entertainment industry happy so that the campaign contributions keep rolling in, and so that they can have a cushy job for the asking after they retire from politics.

The myth that modern copyright laws are supposed to benefit anyone other than the copyright holders has been debunked long ago.
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Niall (profile), 1 Feb 2013 @ 4:02am

Re: Re: Re: It is 2013
Don't forget the big corporations can be as 'evil', so both should be kept in check. The plus point with the government, though, is that they are somewhat responsive to the ballot box...
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John Fenderson (profile), 1 Feb 2013 @ 9:08am

Re: Re: Re: It is 2013
So John �Mr. BIG Govt� Fenderson, are you still confessing that Govt is easier to control than Corporations

Yep.

I'm still pretty confused about what you think my beliefs are. You don't seem to understand them, as you insist on thinking that I am in favor of "big government."
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Anonymous Coward, 1 Feb 2013 @ 9:39am

Re: Re: Re: Re:
While you are correct that the cost of books to the schools also affects the cost of tuition, I was under the impression that he was conflating this with the cost of textbooks to students. I could be wrong in my assessment of his comment though. Otherwise, I agree that his assessment is overly simplistic and purposely misleading.
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Jonathan, 1 Feb 2013 @ 11:37am

Re: Progressive
Partisans fail to recognize that the party wants its faithful to sit down, shut up and swallow whatever they sell you. Yes, this is not just a Republican phenomenon, as anyone who is not utterly dependent on the outside world for identity and validation can see.

In my fantasy world I'd have both major parties declared terrorist organizations and send the lot of the party apparatchiks to Gitmo where they belong, but I wouldn't let Carville and Rove share a cell.
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John F, 1 Feb 2013 @ 11:37am

Where is Aaron Swartz when we need him
...to organize like he did when fighting SOPA. Need the same energy!
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Jonathan, 1 Feb 2013 @ 11:41am

Re: Re: Re:
Alumni? Private industry? Sports fans? Plenty of parties from which they can and do solicit and receive additional funds. Not that they *need* more expenses, of course.
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Jonathan, 1 Feb 2013 @ 11:49am

Re: Re: Re: Re: It is 2013
Insofar as they care to keep the process honest. Political parties, being at their root nothing more than a sales organization, are responsive only to their donors: the voters are the product.
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Anonymous Coward, 1 Feb 2013 @ 2:15pm

Here's what struck me funny; not only do these publishers and the DOJ rank high enough on the ADHD spectrum that they didn't finish reading to the end of the Copyright Act, they're so ignorant of the Information Age that they thought nobody would find out about it and talk about it online.
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DottyK, 2 Feb 2013 @ 12:19am

What I'd like to know
First thing, I'd like to put it on record that university fees in the US are beyond crazy - it's like an alternate reality that people believe students can take on a financial burden equivalent to buying a house and then begin their lives. Are they taking crazy pills or what?
But on the issue of charging for extra e-copies of texts, I'm wondering how much they're wanting to charge? Is it like 50 cents per copy or hundreds of dollars?
I don't know anyone who got rich through academic writing, so I'm fine with authors getting royalties for copies of their works. Also, publishers are having to find their way in the increasingly paperless world. I feel more comfortable having CUP and OUP et al deciding who to print than having to wade my way through thousands of self-published authors to decide who was reputable.
So students are the most vulnerable players in this group, but authors need to be paid for their work. Where would the Copyright Department come down?
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Mark, 2 Feb 2013 @ 11:06am

Re:
They're not 'depriving students of knowledge.' They are simply asking to be compensated for providing something that everyone agrees has value. Are the dorms depriving students of shelter by charging? Is the cafeteria depriving students of nutrition by charging? Making textbooks and class materials is expensive, why shouldn't they be paid?
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Anonymous Coward, 3 Feb 2013 @ 7:53am

Re: Re:
Copyright small amounts of text from a textbook is fair use. It's been that way for a very long time in this country, it's part of the contract of the legal system surrounding copyright.

Surely if we got rid of fair use, publishers would make a lot more money. So that's good right? We should just get rid of fair use because "why shouldn't get get paid"?

How about no. But this isn't even about that. There is no explicit copyright violation being argued, no copyright they are saying Georgia is violation of.

They are suing over _a tool_, that potentially harms their business. It's like dormitory suing a lock pick company for offering a tool that could potentially allow people to get in for free. How many meta-meta-violations of copyright can we stand for before this entire legal system becomes a farce?
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Lida Hasbrouck (profile), 4 Feb 2013 @ 1:50pm

Sad�
As a cofounder of an edtech startup attempting to change the course materials industry, I see this as another instance of overzealous rights holders / publishers twisting the system to work to their advantage.

Publishers will do anything to squeeze every last dollar out of colleges, faculty, and even students.

This is exactly why we have to stop relying entirely upon copyrighted content. Open educational resources (OERs) must continue to become a real threat to greedy publishers, to revive the market back to health.

This is exactly why we started Ginkgotree - to give faculty freedom to choose the content they find most valuable, whether it's free or paid.
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mitshoo, 22 Sep 2013 @ 9:33pm

Re: University's are stupid
In answer to your first sentence, they actually DO promote more open methods. Ever heard of an open access journal? Academics (at least some) are bending over backwards to try to figure out a way to make information more freely available:

https://en.wikipedia.org/wiki/Open-access_journal

Universities don't have nearly as much money as you seem to think they do. At least, not enough left over. I'm sorry you had a bad experience with e-books. But the problem is, as you said, Digital Rights Management, not universities per se. I doubt Universities are getting too much of a kickback from this. They probably are forced to do it the way the e-book publishers want.
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