A Broken System: Einstein Wouldn't Have Been 'Qualified' To Teach High School Physics

from the time-to-fix-things dept

We've argued for years that many professions that require certain forms of "licensing" are often more about restricting supply. That's not to say those who set up the licensing effort didn't have the best of intentions, but the end effect often doesn't actually do much to benefit the public. I'm reminded of this after reading economist Charles Wheelen explaining why Albert Einstein technically wouldn't have been "qualified" to teach high school physics after retiring from a distinguished career at Princeton. And, for Wheelen, it's not just hypothetical:

When my wife tried to make a mid-career switch to teaching math in the Chicago Public Schools, I no longer needed a hypothetical example. I realized that licensing had the potential to be every bit as harmful in practice as I'd been saying it was in theory.

My wife Leah graduated Phi Beta Kappa from Dartmouth. She was a computer science major with an emphasis on math. She worked in the software industry, built a company, and then sold it. She seemed, in every respect, perfectly qualified to teach middle-school math.

She found a job at a school adjacent to a public housing project on Chicago's South Side. On about day three of that job—after she had met the students, decorated the classroom, and started teaching—the principal informed Leah that she did not have a "middle-school math endorsement," which the State of Illinois requires.

Amazingly, this happened a second time as well. She did get the "math endorsement," but then lost a job teaching algebra because she didn't have a special "algebra endorsement." And yet, she's clearly qualified to teach those subjects. And, even more importantly, Wheelen points to research showing that students with "certified" teachers don't do any better than those with "uncertified" teachers -- suggesting the whole process has little to do with making sure students get the best education.

Filed Under: chicago, education, einstein, licensing, physics, princeton

Proposed Licensing For Newspaper Snippets Could Threaten Users Of Blogs, Facebook And Twitter In Germany

from the triumph-of-the-dinosaurs dept

A few months ago we wrote about a really bad idea that was being floated in Germany: making companies like Google pay for the use of news snippets in services such as Google News. Unfortunately, that idea has now been turned into a concrete proposal for a new law; remarkably, it is even worse than the original plans.

As Udo Vetter points out in a post entitled "Digitally Castrated" (German original), the emphasis of the proposed modification to German copyright law (available as pdf) has shifted: now the primary targets of the law are not only companies like Google, but also ordinary people who blog or post short excerpts of news stories on Facebook or even Twitter, who may be required to obtain a special new license to do so.

Vetter suggests this is because the German publishers have realised that Google would probably rather close down its Google News site in Germany than pay for each snippet, and so they have decided to go after an Internet group who make up in numbers what they lack in revenue: German users of blogs, Facebook and Twitter.

They are likely to be affected because two aspects of the proposed law are vague. It would apparently apply to anyone who makes money from their online writing, and that seems to include things like a few Google Ads or a micropayment system like Flattr. The other uncertainty is what exactly is allowed in the way of unlicensed excerpts from articles. The proposal explicitly mentions that quotations that are currently legal will remain legal. But as Vetter points out, a recent German court decision established that even very short excerpts could be infringing, which effectively guts that apparent safeguard.

This creates a gray area of what will be lawful for ordinary Internet users. And that, in its turn, will create an opportunity for publishers to send out huge numbers of threatening letters to bloggers and others that have quoted from newspapers and magazines. Since few of the latter will have the resources to defend themselves in court, most will simply give in and pay for one of the new licenses the legislation would create.

This will doubtless have a chilling effect on German blogging, and by extension on the use of quotations from newspapers in German Facebook posts and on Twitter too, since users will hardly be keen to fight major battles against well-funded publishers to establish the exact contours of the new law.

The end-result could be a disaster for German blogging, microblogging and social networks. Freedom of speech would inevitably suffer, as people hesitate to challenge articles published in newspapers and magazines for fear of running afoul of the new rules. Old media will be back in the driver's seat -- exactly as the publishers doubtless planned when they lobbied for this law.

One hope is that the extreme nature of this proposal will shock enough people into protesting against it -- the massive street demonstrations against ACTA showed what the German Internet community is capable of. The other is that, if the worst comes to the worst, and it is passed in its current form, the new copyright law would surely alienate so many users of popular platforms like blogs and social networks that the German Pirate party would find itself propelled to even greater political power.

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Filed Under: germany, google news, licensing, newspapers
Companies: facebook, flattr, google, twitter

Big Ruling Says Using Trademarks In Artistic Works Can Be Protected Under The First Amendment

from the speak-freely dept

For years, we've talked about just how preposterous it is that various brands claim filmmakers and other content creators can't show their logos without permission. There are even lawyers who specialize in watching movies to make sure no brands appear without a license. Seriously. And this trademark madness extends to other areas as well. A few years ago, we wrote about a crazy case, involving the University of Alabama suing an artist named Daniel Moore (a huge fan of the school's football team) who regularly did paintings of great moments in the football team's history. The case was slightly complicated by the fact that there had been a licensing relationship between the University and Moore at various times, but eventually that went away and the legal fight was over whether Moore could paint depictions of football games without permission. Among the arguments the University made was one that said the very uniforms the players wore were covered by trademark, and depicting them without a license (or, hell, without a registered trademark symbol) was not to be allowed. After many years of fighting through the courts, a district court in 2009 tried to split the baby by saying that Moore could create and sell paintings... but not merchandise (mugs, calendars, etc.) based on those paintings.

This week, the ruling in the appeal of that case, in the 11th Circuit, was finally handed down -- and it's a good one. The court seems to recognize the basic First Amendment issues at play and takes a pretty broad view of how the use of trademarks in artistic works should be perfectly legal. The court relies heavily on Rogers v. Grimaldi -- which is more focused on publicity rights, but has a Lanham Act component as well. In the end, this ruling basically says the First Amendment issue trumps all, and the "likelihood of confusion" here is minimal as well, but takes a back seat to the First Amendment concerns:

In this case, we readily conclude that Moore’s paintings, prints, and calendars are protected under the Rogers test. The depiction of the University’s uniforms in the content of these items is artistically relevant to the expressive underlying works because the uniforms’ colors and designs are needed for a realistic portrayal of famous scenes from Alabama football history. Also there is no evidence that Moore ever marketed an unlicensed item as “endorsed” or “sponsored” by the University, or otherwise explicitly stated that such items were affiliated with the University. Moore’s paintings, prints, and calendars very clearly are embodiments of artistic expression, and are entitled to full First Amendment protection. The extent of his use of the University’s trademarks is their mere inclusion (their necessary inclusion) in the body of the image which Moore creates to memorialize and enhance a particular play or event in the University’s football history. Even if “some members of the public would draw the incorrect inference that [the University] had some involvement with [Moore’s paintings, prints, and calendars,] . . . that risk of misunderstanding, not engendered by any overt [or in this case even implicit] claim . . . is so outweighed by the interest in artistic expression as to preclude” any violation of the Lanham Act. Rogers, 875 F.2d at 1001.

That part is focused on the paintings. Unfortunately, the ruling on the merchandise side is still a little complex. The court rejects the summary judgment in favor of the University, but basically says it's an issue that needs to go to trial, rather than be resolved by summary judgment. Even more unfortunately, the court notes that Moore has "waived" his First Amendment and fair use claims for this part of the dispute. That seems like a bad decision by Moore, but there appears to be little he can do about it at this point. Moore chose to focus on a different argument, suggesting that the fact that he holds the copyright in the paintings trumps the trademark issue -- an argument the court basically tosses aside. Instead, the remaining issue is if the University effectively gave tacit approval to Moore to sell those items under the theory of "acquiescence." That discussion has little to do with the bigger questions.

Overall, though, the first part of this ruling is quite useful in showing that the First Amendment trumps trademark in artistic works in many cases, and hopefully will be relied on widely to stop ridiculous assertions about things like trademarks showing up in movies and other artwork without getting permission.

Filed Under: daniel moore, fair use, first amendment, licensing, university of alabama

Defensive Patent License: A Solution To Patent Problems... Or Just A Way To Highlight Them?

from the and-shouldn't-it-be-league dept

There have been a few unique ideas lately about ways for tech companies to try to "deal" with the explosion of innovation-hindering patent lawsuits against any company that's been marginally successful. For innovators, it's become something of a pandemic, so it's no surprise to see some experiments come about. A few months back, for example, Twitter got a lot of attention for its Innovator's Patent Agreement, which guarantees that any patent assigned by an employee to the company allows the original inventor an effective veto its offensive use. That is, an engineer (even after they leave Twitter, or even after a patent may have changed hands) can, independently of the patent holder, issue a no-fee license for the patent -- so the inventor can grant a license that gets others out of any patent dispute.

And while some other companies are considering using Twitter's IPA -- which it's released publicly for others to use -- it's still a single-company solution. One alternative that focused on a bunch of companies working together was Paul Graham's Patent Pledge which lets companies pledge that they won't use software patents against companies with less than 25 people. A bunch of startups have signed on. It's a nice idea, but the wrong target. The companies willing to sign such a pledge tend to be the ones who wouldn't use their patents offensively anyway.

This week, another potential option was announced too: the Defensive Patent Licence (DPL), which basically requires those who sign up to pledge all of their patents to be covered by the DPL. The way it works is any company that signs on to the DPL cannot assert its patents against any other DPL member. In some ways, it seems like the "L" in DPL would be better as "league" rather than license, since the key aspect is that anyone who does this is effectively in agreement with everyone else in the DPL.

Of course, there's a bit of game theory at work here. You might think that bigger companies would never join the DPL -- and to some extent that's clearly an issue. However, remember, that the big guys may want to avoid lawsuits from patents under the DPL too... but the only way to do so would be to join, at which point they'd have to effectively license all their patents to all other members.

Jason Schultz and Jennifer Urban, the professors responsible for putting this together, have an interesting research paper on the concept that's worth reading.

In many ways, this is an attempt to use the "benefits" of a system like, for example, Intellectual Ventures, without the soul-sucking evilness part. How well it works will very much depend on who takes part. Though, a big issue is that trolls will clearly stay out of it, and they remain one of the central problems with the patent system.

In the end, it seems like all these different ideas are really mostly useful for one key thing: highlighting the many, many, many ways in which current patent system is totally screwed up.

Filed Under: defensive patents, dpl, ipa, licensing, patent troll

Celebrity Photographer's Archivist Connects With Fans On Reddit Instead Of Freaking Out

from the that's-how-it's-done dept

When a person's whole job revolves around managing and licensing a catalogue of copyrights, it's hardly surprising (if still disappointing) when they freak out about unauthorized sharing. So it's really nice to see someone in that exact position taking the opposite tack, as recently happened when a comparative Then & Now photo of Meryl Streep (which demonstrates that she may be some kind of magical ageless faerie) shot up the Reddit charts (thanks to Andy for sending this in):

The 1979 photo is by famous pioneer-paparazzo Ron Gelella. The archive director for the company that manages his copyrights saw the image and showed up in the Reddit comments... with additional info and a link to related photos. This garnered a very positive reaction from the community:

As you can see, this prompted an AMA, which is interesting in itself, featuring lots of conversation about how the internet has changed the paparazzi business and the differences between modern paparazzi and early ones like Gelella.

I wouldn't be surprised if all this exposure led to some print sales for the company—though what would be really cool is if they started working on some additional interesting offerings. There is apparently a huge amount of interest in Gelella's photography and perhaps even more in his anecdotes, not to mention a lot of people who want to jump into the moral debate surrounding the paparazzi. The archivist is clearly skilled at connecting with fans, and I bet they can come up with some great reasons to buy, too.

Filed Under: archives, connect with fans, licensing, meryl streep, paparazzi, reddit, ron gelella

Canada Approves New Music Tariffs; Weddings Cost Double If You Dance

from the footloose? dept

The Copyright Board of Canada, which reviews copyright tariffs for various collection societies (like ASCAP and BMI in America, which collect performance licensing fees from venues) has just approved a new set of fees to cover recorded music at a bunch of different live events. Karaoke bars, conventions, parades, weddings and several other classes of event—which already pay fees to SOCAN, which represents songwriters—will now begin paying additional tariffs to collection society Re:Sound, which represents recording artists and labels.

We've talked a lot about the problems with the whole idea of the collection society structure in the past, especially the fact that most societies are constantly pushing for higher fees and trying to extract money for ridiculous things, even though they have a poor track record of actually redistributing the money they collect to the artists they supposedly represent. But of course, the people behind the tariff talk it up as a boon for small musicians:

"We are trying to establish tariffs for the remuneration of everybody involved in the music — everybody that has some rights to receive some remuneration," said Gilles McDougall of the Copyright Association of Canada, adding that the tarriff will likely result in a few million dollars a year for performers.

Re:Sound spokesman Matthew Fortier said the money collected will make a big difference to small operations.

"Sometimes you think of the larger artists or record labels, but most often it goes to small, struggling artists and record labels — we have thousands signed up with us," he said.

But as Howard Knopf points out, small artists are the last ones to get anything out of a scheme like this. Megastars and their labels can make money—but even that pales in comparison to the real beneficiaries of the tariff:

Sadly, very little of this money through gets to the artists that need it the most. This is because the copyright collective system tracks and rewards commercial success. Celine Dion, U2, Lady Gaga and their record and publishing companies do very well by the this system but emerging creators see very little of this money. The ones who really and consistently benefit the most are those who run the collectives, those who are consultants to the collectives, and the lawyers who punctually pursue new and higher Copyright Board tariffs using money raised from the previous tariffs and paid for ultimately by the Canadian public. Many if not most Copyright Board hearings generate millions of dollars in legal fees in order to generate average annual payments to creators that are typically much less than a junior lawyer’s hourly rate.

As with many such licensing schemes, the specifics of the fees seem almost completely arbitrary. Karaoke bars pay a rate based on nights-per-week, parades pay a different rate per-float, and weddings pay a third rate that for some insane reason gets doubled if the wedding involves dancing.

Some people will look at the fees themselves, which in any singular instance only generally add up to a few hundred dollars at most, and ask what the big deal is. But that's ignoring the big picture: Canada loves copyright tariffs, and each one serves to shift massive amounts of wealth around, often with little justification and no way of ensuring that the money is being properly distributed. And we just keep piling new tariffs on top of old ones, with no clear idea of how effective they are—except at funnelling money to the collection societies:

It’s true that most people do not tend to get married very often. And many weddings cost $25,000 or more. So, some may not be too concerned about the macro or even microeconomic aspects this particular tariff item. It won’t likely harm Canada’s economy overall or even the institution of marriage.

But these little tariffs add up. The little tariffs such as $0.29 for a blank CD or $5.16 per year for each K-12 student, or $253.45 for a wedding soon add up to about $500 million a year in Canada. One is tempted to say that "A half billion here, a half billion there, pretty soon, you're talking real money." Copyright Board tariffs siphon huge sums out of the educational system, the broadcasting and telecom industries, businesses of all kinds that use blank media for ordinary data storage and transfer purposes, etc.

Now we can add this one to the bloated list. And you can guarantee it won't be long before Re:Sound is back before the Copyright Board, pushing to raise the fees and expand the tariff to new classes of events and venues. Copyright tariffs rarely decrease—even when they absolutely should.

Filed Under: canada, collection society, copyright board, licensing, tariffs
Companies: ascap, bmi, re:sound, socan

Irish Charity Told It Needs To Pay A License Fee To Link To A Newspaper Article

from the uh,-no dept

Via Mathew Ingram we learn of a ridiculous situation in Ireland, where the organization "Newspaper Licensing Ireland" has sent an email to the Women's Aid charity, telling it that linking to newspaper websites without a license is copyright infringement:

"a licence is required to link directly to an online article even without uploading any of the content directly onto your own website"

The lawyer representing Women's Aid smartly posted its own reply publicly asking NLI to "specify the statutory basis of this claim." It also notes the pricelist, including the fact that NLI seems to think that linking to between one and five articles requires €300 annually. Furthermore, the letter notes the terms of service on various news websites that allow linking -- even though this is really besides the point, since copyright law does not forbid linking in the first place.

Filed Under: ireland, licensing, linking, women's aid
Companies: newspaper licensing ireland

Why Would Google Offer $1B For Music Rights? Because The Return Could Be Much Bigger

from the you-can't-put-a-price-on-freedom dept

It's no secret that Google's music locker service is struggling, but the company still seems committed to making it a success. To do so, they'll need to do big things, and break through the barriers that the record industry places in their path. Music columnist Wayne Rosso reports that an unnamed source told him Google is making bold overtures in that direction, and has offered at least one major record label a $1-billion contract for blanket worldwide rights to their entire catalog (thanks to Colin for sending this in). It's still unconfirmed, but it echos something Glyn wrote last year (which Rosso also refers to) about the possibility of Google or a consortium of internet companies simply buying out the record industry (and noting that Larry Page, Serge Brin and Eric Schmidt could afford to do so with their personal fortunes).

Rosso's source, however, isn't exactly sanguine about the idea:

What, one may ask, is Google thinking? “Who knows,” said the source. “It really doesn’t matter because they would screw it up anyway (referring to the fact that Google’s music service has been less than dazzling). Evidently they have a big content group and they have to have something to do to justify their existence.”

So how have the labels responded? “They’re just shrugging and stringing Google along, trying to keep milking cash out of them”, says the source. “They want the money but on the other hand they hate Google. It really sticks in their craw that Google continues to present links to pirated content at the top of their search results.”

I think that, if true, this says something much different. Google is not trying to "justify" anything—they know that there is tremendous opportunity in the field of online music services if only the labels will loosen the reins a bit. And they are willing to bet billions on that belief. The problem with online music offerings is that the people who design them simply don't think the same way the recording industry does. They want to make cool, useful, engaging services full of both common sense features and innovative ones, deployed on multiple platforms all over the world, fully leveraging the technology that is available—but licensing restrictions interfere with every single step of that process. Design and development are inextricably linked with tedious contract negotiations and the fear of lawsuits. It's extremely difficult to get a good product as a result—and if you do, the labels clamp down to see where they can extract more money from it. If Google is trying to buy blanket licenses with no restrictions at a high price tag, it's because they want to escape that cycle. They want a clear and open playing field on which to build services the way they want to build them, without having to beg the labels for permission at every turn. In a market that has only scratched the surface of the economic possibilities of digital music, such a playing field would be well worth the money.

Filed Under: licensing, music lockers, wayne rosso
Companies: google

Copyright Troll Demands $8,500 From Rarely Visited Lindsay Lohan Fansite

from the that'll-win-fans dept

We've covered plenty of copyright trolling operations, and the Copyright Enforcement Group is one of the earliest to show up in the US, though there are few details as to who is actually behind it. We recently have been in contact with someone on the receiving end of a shakedown threat letter from CEG for their Lindsay Lohan fan page. The person who ran the site was, not surprisingly, a Lindsay Lohan fan, and tried to use the site to "promote the good things in Lindsay's life" rather than the typical schadenfreude surrounding Lohan these days. It was, in other words, the kind of site that Lindsay Lohan herself might appreciate. But it no longer exists, thanks to copyright trolling.

Like most fan sites, this one had some graphics, and the company that holds the copyright on those graphics, AKM Images, apparently hired CEG to start demanding cash from people, including the operator of this Lindsay Lohan fansite. Upon receiving the email, the owner of the site completely deleted it out of fear. However, he also saw that, according to Google analytics, the page that had the images had a grand total of nine pageviews from six unique visitors (and the operator of the site notes that one or two of the visits likely came from his own computer). In other words, even if the images were "infringing," you could make a pretty strong argument for either fair use or de minimis use.

The threat letter, of course, makes no mention of the details or possible defenses. It just says that each image requires a "settlement" fee of $500, and if you total up the 17 images (sent across two separate demand letters) that were hosted on the site, the owner is expected to pay $8,500.

It does seem likely that this individual did, in fact, post images without a license, though this is quite common across the internet. You could see a pretty strong fair use/de minimis use claim here, in that the site was non-commercial, was designed to help promote Lohan and was basically just a fan expressing appreciation. But, these days, expressing appreciation of someone famous can get you threat letters like this one (we've included one of the two threat letters below).

While there is, perhaps, an argument that the site infringed, the "harm" on the copyright holder is non-existent (there is no way this person would have paid to license such images). If I were a part of Lindsay Lohan's "publicity" team, at the very least I would probably look into paying off this settlement and supporting the site operator. In the meantime, it seems like actions like this could do a lot of harm to celebrities, as copyright trolls try to "crackdown" on fan sites, not only forcing many of those sites closed, but pissing off some of the celebs' biggest fans.

Filed Under: copyright troll, licensing, lindsay lohan, shakedown
Companies: akm images, copyright enforcement group

Something Is Wrong When A Judge Needs 350 Pages To Decide If A College's Digital Archives Are Fair Use

from the feel-free-to-dig-in dept

Nearly a year ago, we wrote about a somewhat "obscure" lawsuit concerning fair use at universities. We've been noting that, up in Canada, the courts and upcoming legislation are potentially clearing the field for universities to declare "fair dealing" on the use of works—but they are bizarrely failing to do so. In the US, however, Georgia State did assert its fair use rights over certain educational uses, leading to a complex situation in the courts. Georgia State was sued by some publishers, because of the use of "e-reserves" (content posted on websites for students to download). The university claimed fair use. The publishers (who had the lawsuit funded by the American Association of Publishers and the Copyright Clearance Center -- who helps collect fees for these kinds of things) argued that an older ruling about print shops not being able to print out coursepacks without clearing everything applied.

On Friday, the ruling came out, and it's a somewhat astounding 350 pages, as district court Judge Orinda Evans spent the time to meticulously go through every count of infringement in great detail to determine whether or not the university infringed. The summary version is that the publishers only won on 5 out of 99 counts. That certainly doesn't look very good for the publishers. However, digging into the details is where it gets interesting. I'd recommend reading both NY Law School's James Grimmelmann's analysis and Duke University's Kevin Smith's analysis.

There's a lot to dig into, but the quick summary is that it's mostly good, but there are still some significant problems with the ruling. Let's call out some highlights:

• A bunch of the specific claims didn't even reach a fair use analysis because the judge rejected them for failure to prove they held the copyrights in question! This may seem like a basic point, but US law is pretty clear that the burden is on the plaintiff to prove they own the copyright (though, this is something that the US is trying to change under the leaked draft of the Trans Pacific Partnership agreement). The failure of the publishers to even be able to show they held the copyright is a pretty stunning flop.
• Another batch of claimed infringements were dropped on the basis of de minimis copying because they were never downloaded by any students. This is an interesting interpretation of de minimis, though I'm not convinced it would hold up at a higher level if the case gets that far. James Grimmelmann's summary explains what happened here:

  The court dismisses these from the lawsuit as de minimis, explaining that these uses by the University, while technical implicating the copyright owners’ exclusive rights, don’t affect the incentives for authors to create. This puts more teeth in the de minimis doctrine in copyright: it goes beyond the view that de minimis means “not substantially similar.” It also strengthens the argument that “internal use” copies never used to reach an to an audience that reads them for their content don’t infringe. Think, for example, of the HathiTrust’s archive of scans from Google Books.

• When it gets to the rest, Judge Evans dutifully does the standard 4-factor "fair use" test on each and every case rather than broad brushing across the batch. While the four factor test is supposed to be used in fair use cases, I do always worry when judges view the fair use test entirely as a "formula." The law is pretty clear that while the four factor test should be considered, it need not be the only thing that is considered -- here, however, the judge just lines up each claim and runs it through the test.
• Even more worrisome, is that the judge seems to get excessively formulaic in applying parts of the test. Specifically, the third factor, on the amount copied, leads the judge to come up with her own hard and fast rules, based on... well... that's not entirely clear. Here's what the judge decided:

  Where a book is not divided into chapters or contains fewer than ten chapters, unpaid copying of no more than 10% of the pages in the book is permissible under factor three. The pages are counted as previously set forth in this Order. In practical effect, this will allow copying of about one chapter or its equivalent. Where a book contains ten or more chapters, the unpaid copying of up to but no more than one chapter (or its equivalent) will be permissible under fair use factor three.

  While there are some benefits to having a specific "rule," I'm not sure how this particular rule really matches with the intent and reasoning behind the fair use doctrine. If you copy two whole chapters in a book with 50 chapters, suddenly that goes against this factor, despite, percentage-wise, being less than copying 10% from a book with less than 10 chapters? Why the odd distinction?
• The "good" news on this point, at least, is that while she created her own rules for the third factor, she flat out rejected the ridiculous "Classroom Guidelines" that had been set up in 1976 between the publishing industry and "certain representatives of the education establishment." Basically these were rules that, if followed, meant the publishers wouldn't sue. However, the judge finds them somewhat silly, and with no basis in the law, including things like the claim that a professor can only claim fair use if they use a work for one semester (requiring them to license it for future use).
• Also troubling is the interpretation on the fourth factor -- "the effect on the market," -- which is often considered the most important factor (even if some reject this claim). Some courts have argued that this factor often depends on whether the copyright holder is offering a license for the work or not -- and Judge Evans buys into that argument here. Basically, the result on this factor depends, almost entirely, on whether or not the publisher is offering a license for the work. Again, Grimmelmann points out that there's good and bad here. This does, at the very least, suggest that libraries can make use of orphan works, since there won't be any active licenses available for those works. But, more troubling, is that it doesn't look at wider market factors, including alternatives to licensing (i.e., not obtaining the work, or obtaining it through other means, such as by photocopying). You shouldn't automatically assume that if a publisher offers a license, not licensing it automatically means the publisher loses out on revenue. But the judge seems to make exactly that assumption here.
• On the other two factors, the judge reasonably says that the fair use factors clearly favor fair use: the "purpose" of the use being for "nonprofit, educational purposes of teaching and scholarship," and the nature of the works being "informational." That's good, and is applied across the board.

On the whole, the publishers certainly won't be happy that they lost on so many claims in the case. And there are some good points on fair use in there -- but as described above, many of the statements by the judge are a bit worrisome, and could lead to problems for future fair use claims in situations where a fresh analysis might seem like it should be fair use.

All that said, it seems highly likely that the publishers are going to appeal this, and we could be bouncing around the court system for years before any of this is finalized.

Filed Under: copyright clearance center, education, fair use, georgia state, licensing