Former Copyright Registers: We Must Limit Fair Use At Public Universities, For The Poor Publishers Who Are Paying Us To Say This
from the quietly-killing-fair-use dept
We've written a few times now about an important case involving fair use within university libraries and their "e-reserves." It involves some academic publishers (Cambridge University Press, Oxford University Press and Sage Publications) suing the Georgia State University for daring to allow professors to designate content such that it can be checked out electronically, just like they would with physical content. The publishers demand to be paid extra for such things, because the key to things going digital, to them, is the ability to get paid multiple times for what used to be free. The court eventually came out with a detailed and complex ruling that found most of the e-reserves to be fair use. We had some concerns about some seemingly arbitrary "tests" that the judge came up with, but on the whole were encouraged by the strong fair use support.We were dismayed, recently, to learn that the Justice Department, at the urging of the Copyright Office, was considering weighing in on the appeal, potentially siding with the publishers and against the University and its students. This is really quite incredible when you think about it. It would involve the President's administration -- which has claimed education is a priority -- siding with mostly foreign publishers against a public university seeking to make access to information and learning more affordable (which, copyright law tells us, is a key thing copyright and fair use are supposed to enable).
But, copyright maximalism runs deep within the Copyright Office, which isn't all that surprising given the revolving door between it and various maximalist lobbying operations.
So, it really shouldn't come as a huge surprise that two former Copyright Office bosses have teamed up to file their own amicus brief that argues in favor of the publishers and against fair use. Between Ralph Oman and Marybeth Peters, they ran the Copyright Office from 1985 all the way up until 2010. Both are extreme copyright maximalists. We last wrote about Oman a few months ago when he made the stunning filing in the Aereo case claiming that all new technology that can be used for content should be presumed illegal until Congress has given an explicit okay. There are tons of crazy Marybeth Peters stories to choose from, but we'll just point you to the time that, in supporting a ridiculous attempted expansion of copyright law (the INDUCE Act, which never passed) she suggested that anyone who thought copyright laws needed to be reformed in the other direction was actually assisting organized crime operations. So, these are not what one might consider folks used to presenting "balanced" arguments, or even arguments that care about the public. These two are copyright maximalists to the extreme.
Also, it's worth noting that while a bunch of publishers who are not a party to the suit (Reed Elsevier, McGraw-Hill, Pearson Education, John Wiley & Sons, and Cengage) are disclosed as funding Peters and Oman (and two others) to prepare this brief, they seem to have left out a mighty big conflict of interest. The Copyright Clearance Center, which has funded 50% of the costs for the three academic publisher plaintiffs, has Marybeth Peters on its board of directors. You would think that this is a very direct conflict of interest that needs to be disclosed. Being on the board of the group that not only is funding the lawsuit, but which would stand to benefit massively in financial terms should the lower court ruling be overturned (the CCC would be the one to collect the fees, most likely) seems like an obvious conflict of interest... and is not named at all. Oman, for his part, used to be on the board there as well.
The brief is, well, pretty much what you'd expect. They're not fans of fair use and they're "concerned" about how actually allowing fair use would impact those who paid them for this brief and who are funding the lawsuit:
Amici are concerned that the flawed reasoning and incorrect holding of the district court will have implications far beyond the specific uses at issue here, and ask this Court to reverse the decision below.The crux of their argument is that the district court made a horrifying mistake in actually thinking that Georgia State's status as a nonprofit institution of public learning would weigh in favor of fair use. Apparently, according to these former Copyright Office bosses, the court really shouldn't have paid so much attention to pesky facts like that, but rather should have focused on other issues... like the ones the publishers prefer.
In considering the application of the first fair use factor, and indeed throughout the Opinion, the district court gave disproportionate weight to the fact that the challenged uses were being made by a nonprofit educational institution. To say that the court’s “analysis” of the first fair use factor was cursory is an understatement. The court looked no further than the nonprofit status of GSU and the fact that teaching was involved to find that “the first fair use factor favors Defendants.”Their argument hinges on other (troubling) rulings concerning coursepacks. As we noted in our initial analysis of the case, those rulings are both different (they involved for-profit companies) and not analogous (a coursepack has always been different than a library reserve item, which is what this is more like). Furthermore, since the coursepacks were ruled infringing, a strong argument can be made for just how damaging those rulings have been for education, massively increasing the cost of education. Coursepacks jumped in price, sometimes by a factor of 10.
Peters and Oman try to argue that since the use in e-reserves is not "transformative" the "nature of the use" should actually weigh in favor of the publishers. Of course, whether or not it is transformative is only one part of the analysis. The actual law explicitly says that use in "teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright" and, as for the "nature of the use" part of the test, again, the statute itself says that one of the key determining factors is "whether such use is of a commercial nature or is for nonprofit educational purposes." Contrary to the claims of Peters and Oman, that would seem to overwhelmingly support a determination of fair use, no matter how hard they try to hide from that language.
The brief goes through a whole, wasted, analysis of what is considered transformative use, ignoring all of the language cited above. Whether or not it is transformative is only part of "the nature" of the use. Since that same prong explicitly calls out nonprofit educational purposes, whether or not it is transformative isn't nearly as important.
And then... it gets even more ridiculous. You simply know that copyright maximalists are reaching deep for an argument when they pull out the old "but this would violate our international treaties!" argument. But, yes, that one makes an appearance here too:
Exceptions and limitations in U.S. copyright law, including Section 107, must also be viewed in the context of the relevant U.S. treaty obligations. In 1989, the United States became a member of the Berne Convention for the Protection of Literary and Artistic Works..., the principal international copyright treaty. Article 9(2) of the Berne Convention addresses the nature and scope of copyright exceptions that its member states may incorporate in their laws, establishing a “three-step test” that such exceptions must satisfy: (1) they must relate to “certain special cases,” (2) they may not conflict with a normal exploitation of the work, and (3) they may not unreasonably prejudice the author’s legitimate interests. The three-step test provides a useful yardstick by which to measure the application of copyright exceptions such as fair use. The district court’s refusal to see beyond the nonprofit educational nature of the challenged uses influenced its refusal to acknowledge the extent of the takings and the resulting interference with the Appellants’ normal exploitation of their works and their legitimate interests.Of course, just a few months ago, we were talking about how maximalists keep falling back on this claim that we must follow the three step test as a way to stop real fair use. That test is actually significantly more restrictive than other international agreements, like TRIPS, that grant countries the ability to be much more flexible in determining things like fair use and user rights. The very nature of the three steps test goes against the principles of copyright, in that they focus on minimizing the burden on the copyright holder, rather than maximizing the benefit for the public, which (again) is what copyright is supposed to be about.
And, even if we went with the three step test, there's a strong argument that the original ruling is perfectly within the confines of that test. It does involve a special case, it does not conflict with normal exploitation of the work (the books can still be sold) and it certainly doesn't "prejudice" the legitimate interests of the rights holder.
There are a number of other, similar arguments made, in which Peters and Oman more or less try to argue that the fact that this is a non-profit, educational institution, and the use was for learning as a part of a class is of almost no concern whatsoever. In their minds the key element in determining whether or not something is fair use is... how much it impacts the copyright holder:
Rather than focus on the issue before it, the court instead viewed the issue entirely from the perspective of the user.How dare the court focus on the "users" that copyright law is supposed to benefit!
Amusingly, in the conclusion, they then try to argue that if the lower court ruling stands it will be an insult to the important "balance" that "is at the heart of copyright law." Really!
The inclusion in the decision of arbitrary and specific rules creates, in view of the broader implications of the decision, a risk that this decision will function as de facto legislation establishing new fair use standards for the type of uses at issue in this case that fail to incorporate balance between the interests of all stakeholders – a balance that has always been at the heart of copyright.Yes, they spent nearly all of the preceding 33 pages arguing that the interests of the public, the students and nonprofit educational institutions are not important -- and that the only stakeholders who matter are copyright holders -- only to conclude by saying that "all stakeholders" aren't properly balanced with the lower court decision. And, of course, if you know anything about the history of copyright law (and Oman and Peters know that history quite well, as they've been a major part of it) they know that it's been one expansion after another, solely based on the interests of copyright holders and against the interests of the public.
Since the 1976 Copyright Act became law, there have been an astounding 52 amendments to the Copyright Act. They're all at that link. Let's see if you can point to how many of those actually were about benefiting the public vs. how many of them were about ratcheting up the law in favor of copyright holders. Let's "balance" those numbers, shall we? Why do I get the feeling that Oman and Peters would rather not look at what that data actually shows?
The simple fact is that even if you do believe that copyright law is about "balancing" such interests (and we believe that's a fundamental misunderstanding of copyright law, the purpose of which has always been to serve the best interests of the public), the scales have been so far tipped in favor of copyright holders for years. And, over the past 30 years, Oman and Peters themselves have been guilty of putting their fingers on one side of the scale almost exclusively. To now argue that this minor statement in support of fair use (which doesn't change anything -- since many universities had already acted this way, and it's always how non-digital reserves had worked) somehow upsets a delicate "balance" isn't just laughable, it's an insult to those familiar with the history of copyright law.
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Filed Under: copyright, copyright office, copyright register, fair use, georgia state university, libraries, marybeth peters, publishers, ralph oman
Companies: copyright clearance center
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Rich companies can lobby all they want, but at the end of the day they won't stamp out piracy. The more they push, the worse the piracy gets. When they actually innovate and give reasons to buy, piracy abates. That is the very definition of a safety valve.
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You seem to be under the delusion that there's anyone left in the government who believes that copyright has any other purpose other than protecting copyright holders. Any other purpose copyright may have had has long since been forgotten.
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I thought your analogy was a bit silly initially, but then looked at it in the light of if the people who push for the legislation and penalties for copyright infringement ever got the results that they claimed to want (a complete end to piracy, sharing and other infringement), the results for them would be as destructive and final as the lack of a safety valve in a steam engine.
For their own protection, the quixotic maximalists must be prevented from actually destroying all the windmills they tilt at, they need them as much as we do.
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balance
Remember, to them the public is not a stakeholder. The balance they speak of is between what copyright holders have and what copyright holders want.
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Obviously
Well piracy is the result of their actions and it is growing every time they have a ruling like this.
Nobody misunderstands that copyright cartels are only interested in the money they can get from the creators. Nothing more nothing less, they do not care about the artist in any way , though they will scream at the top of their voices it is for the artist.
Make a bad law and people will gradually ignore it, make even more bad decisions and you are ignored more and more.
Maybe the Universities cannot do anything about this but the students can, they can refuse to play the game and pirate everything they need or want, that not only takes the publishers out of the game but the University too. If i was a university head i would be advising professors to release their content freely and only to use publishers to get the right format for their work, damn they could even make it a yearly project for their students to create the work for the following years students.
Publishers and their greed are going to create an environment where they are completely ignored, where the billions they make a year is completely lost, and why? because greed is blind to the facts.
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Now you see his real agenda
He has hardly mentioned jobs or the economy since he was elected the first time. Instead he does everything he can to hinder the economy. He is all about the transfer of wealth; but it isn't just from the rich to the poor. It is from the US to other countries. His desire is to bring the US down a notch.
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Actually, they did not. The organization you mention was specifically noted.
As for your "legal" analysis of their brief, perhaps you should read it again, and then once more for comprehension. They fully support fair use, contrary to your snarks, but at the same time well recognize that fair use analysis under 17 USC 107 is not the simplistic exercise promoted here with regularity. For example, just because the materials here were copied for classroom use by a not-for-profit educational institution does not mean the "game is over" with respect to the first fair use factor and that the institution is entitled by right to prevail on this factor.
You wail words to the effect "My God, how can this not be fair use? After, the copying actually furthered the dissemination of information to users, a principle undergirding copyright law." Somewhere along the way you seem to have concluded that the rights of authors are subordinate to those others. Their brief rightly points out the error associated with this conclusion.
Stick with economics, and leave the analysis of legal briefs and court opinions to others having the requisite foundation in the law associated with copyright.
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They are.
"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."
The rights of authors are subordinate to the 'Progress of Science' - in other words the promotion of learning. The only reason authors are granted the right is for the promotion of learning. If their (ab)use of that right hinders learning, it seems pretty clear they should be stripped of it.
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That would, most certainly, unequivocally, not be you. Your opinions have time and time again been proven to be exactly the opposite of what a sitting judge has said. And then you prattle on, as if your knowledge is superior, and the judge "got it wrong".
The fucking hubris you have.
to quote you: "LOL"
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Unfortunately, Mike is hell-bent on publishing idiotic nonsense like this where he whines about everyone else. And he avoids the fact that his arguments are stupid by not engaging folks like you and me in the comments. Mike cares nothing about truth. He just wants to whine and spout stupid arguments that can't withstand even the slightest criticism. Mike will NEVER be man enough to stand behind his own words. Deep inside, he knows that he's a total joke.
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Hidden in a footnote in the "parties" section, but not mentioned in the cetificate of interested parties or the corporate disclosures section, both of which would be a lot more appropriate.
As for your "legal" analysis of their brief, perhaps you should read it again, and then once more for comprehension.
I read the brief multiple times, and discussed it with 4 different lawyers. I love it how when you're on the losing side of something all you can do is make false claims about me.
Oh well. If that's your lot in life, so be it.
They fully support fair use,
Anyone reading the filing knows this is not true.
For example, just because the materials here were copied for classroom use by a not-for-profit educational institution does not mean the "game is over" with respect to the first fair use factor
Nor have we ever said that it is "game over." But, of course, you don't want to actually focus on the actual issues raised. You prefer to distort and exaggerate my arguments, while pretending that I am the one doing that. Sad.
You wail words to the effect "My God, how can this not be fair use? After, the copying actually furthered the dissemination of information to users, a principle undergirding copyright law."
You say that as if I'm off all by myself on this one, as opposed to having a federal judge and tremendous case law, as well as numerous copyright law experts on my side.
I know, I know, you have a chip on your shoulder, and you think your job in life is to marginalize what I have to say. Each time you make one of your silly arguments, though, it just confirms that you are scared shitless that people who know this stuff are finally pushing back against your extremism.
Somewhere along the way you seem to have concluded that the rights of authors are subordinate to those others.
That's not debatable, it's a fact. The purpose of copyright law is to promote the progress of science (by which they mean learning). Full stop. The method is to provide limited government granted monopolies to authors. So, yes, if those "rights" of authors interfere with the promotion of progress, then, yes, they are subordinate. As stated in the Constitution. That's not an arguable point. Odd that you seem to not know that.
Stick with economics, and leave the analysis of legal briefs and court opinions to others having the requisite foundation in the law associated with copyright.
By which you mean only allow maximalists to define copyright law, as they've been doing for decades.
As stated, I spoke with four different copyright lawyers about this. They are, dare I say, much more experienced than you on matters such as this. But if the only way you can make it through your day is to make incorrect assumptions about me, I wish you the best of luck.
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You stated that the amici brief "argues in favor of the publishers and against fair use." It does no such thing, something that your consultants surely told you. What it does address is what the amici perceive to be legal error by the district court, namely, that the court's fair use analysis is substantively flawed.
I am pleased to note that you have over the course of time come to associate "progress" with "learning". When I first posited this quite some time ago you chastized me as lacking an understanding of the law.
You obviously find disconcerting my comment about your lack of expertise in the field of copyright law. Of course, the same can be said with respect to patent law, so at least you must be commended for being consistent.
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Considering how many times we have caught you making statements that proved you were completely and totally full of shit (remember when you said Bret Easton Ellis had no fans? good times), I find nothing you say "disconcerting." You are a full of shit lawyer who exploited the system for years. You no longer work in your big corporate job and you feel inferior to lawyers much smarter than you, hence you consistent requirement to use the most pedantic language possible even when posting stuff about which you clearly know nothing.
I know, I know, it makes you feel good to think you've knocked me down a peg, but since every time we look at the details, we discover that you're full of shit, nothing you could possibly say or do would "disconcert" me.
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- Thomas Rasset: When this dude defended the million dollar fines as all well and good, those same fines where found by not one but two judges to be oppressive and thrown out, and now Ms. Rasset is appealing to the supreme court on constitutional grounds, which even the Obama administration didn't laugh this time around but sent an amicus brief explaining why the supreme court should not hear Ms. Thomas case.
- SOPA: Anybody remember the dude, saying we all didn't understand the English language enough to parse the intentions of the law and how it could be used? We all know how that ended LoL
- Righthaven: There was this dude, that kept saying Righhaven was doing everything right, up till the moment that Righthaven got squashed, then that dude disappeared.
At least this dude is not defending Prenda right now, he was smart enough to not get involved although I suspect he had to muster a lot of will power to exercise that level of selfcontrol :)
Funny, funny dude.
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I love your burns. Always a treat. :)
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I love it when Pirate Mike pretends like there's a bunch of lawyers on his side, but he never produces them or points us to their writings. Real convincing, Mike. Real convincing.
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I'd love to debate you on this very arguable point. It's hilarious that you think your extremely narrow view is the only possible view with merit. You do realize that by design, copyright grants authors the right to exclude others from using their works for any purpose including pedagogical, right? You have this simplistic notion that unless copyright is giving all students everything they need for free, then copyright isn't fulfilling its goal. That's not a good argument, and I'd love to debate you on it. I know, I know. You're too busy to actually ever discuss things on the merits. You've got the next hate/puff/FUD piece to pump out. No time for details and facts.
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Nowhere was this conclusion presented.
What was asserted is that copyright is a mechanism that exists solely and entirely for the benefit of the public at large. That it provides a benefit to creators is a means to that end. It is not the end itself.
In other words, it is not a case of the "rights of authors" being subordinate to anything. It's a case of the special privilege that authors get in copyright law not reducing the purpose of copyright law in the first place.
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It's silly, extremist posts like this that make me wish you weren't too dishonest and too scared to defend what you write. It's a shame that you can't stand behind your own words, because so much of what you write is beyond ridiculous. I'd love to embarrass you, but I know you don't want to play. Oh well. Some people are just manipulative, whiny assholes who can't stand any criticism. Nothing I can do about it.
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Yeah! Because I always see Mike responding to your comments, "RRAAWWRR! WHY WON'T YOU DEBATE ME!? I'M A SHAMELESS TROLL THAT NEVER CONTRIBUTES ANYTHING BUT AD HOM ATTACKS AND UNCLEAR OPPOSITION TO WHATEVER IS POSTED!"
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You just nailed the entire copyright maximalist population. Good one! You win the fat, pink, fluffy unicorn. Bravo.
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the clown car is full today...
art guerrilla
aka ann archy
eof
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First, section 107 does not say that uses that occur for educational purposes are always noninfringing. What it says is:
the fair use of a copyrighted work … for purposes such as … teaching (including multiple copies for classroom use) … is not an infringement of copyright.
That is, fair uses are not infringing, including fair uses for educational purposes; not that educational uses are necessarily fair uses. It is possible to have educational uses that are not fair uses under the statute. Really the list of types of uses in 107 is little more than illustrative of likely fair uses, but not anything more binding. Whether the use is fair is all that matters.
Second, reliance on Berne is misplaced. No less an authority than Congress itself tells us, at 17 USC 104(c) that Berne has no effect for US copyright litigation. What matters is the Copyright Act. Treaties are only relevant for Congress and the President and foreign countries and international organizations. The court should ignore the entire argument based in Berne.
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You appear to be the one with a reading comprehension issue. We stand by the article. This brief is a travesty. Anyone who supports it self-identifies as a fool.
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Wiseguys
So, Mikey, you got the schtuff? Revenue's down from the Lower East Side, watcha gonna do aboud it? And didja ice anyone lately?
:)
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