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.

Filed Under: copyright, copyright office, copyright register, fair use, georgia state university, libraries, marybeth peters, publishers, ralph oman
Companies: copyright clearance center

Who Knew Discussing A Long Repealed Copyright Law Could Be So Interesting...

from the copyright-geeking dept

I wasn't at all sure what to expect yesterday when I went to a conference in honor of the 100th anniversary of the US's Copyright Act of 1909. After all, that law was superseded by the Copyright Act of 1976, and so it hasn't even been in effect for 33 years. However, the program was organized, in part, by Eric Goldman and Pamela Samuelson, and had some really big names on the speaker list, so I figured I'd at least check it out. Looking over the schedule, I figured I'd sit in on a few sessions and probably head out. However, the program actually turned out to be so interesting, that I stuck around for almost the entire thing (had to duck out for a bit at one point). Bill Patry joked that only a bunch of lawyers could get excited to discuss a law that was "repealed" 33 years ago, but what was so interesting was how much of the discussion was really about what's going on today.

The summary? Copyright law is so screwed up that even if you put a significant number of the top copyright scholars and students in an auditorium for a day, they'll disagree on almost everything, and only agree that the system is a total mess. Even simple questions like "how should copyright be handled on blogs" created a collective shoulder shrug, with everyone effectively admitting that copyright law has no answer for such basic questions. That should worry people. If the intention of copyright is to "promote the progress of science" then it shouldn't be so incredibly ambiguous and contentious. All in all, it seems to reinforce the point that copyright law has been stretched and twisted in so many different ways over the years, that it may be fundamentally broken. Basically, copyright law is adjusted every so often not based on any look at whether or not it actually promotes the progress, but based on whatever new technological innovation comes along that throws some legacy providers' business models into doubt. That industry freaks out, and politicians respond with some patch that protects that industry, but has little to nothing to do with actually promoting progress.

This goes all the way back throughout history. One speaker pointed out that the big innovation of the 1909 copyright was compulsory licensing on mechanical rights. This was put into place for one reason: fear about player pianos and how they would dominate the market and destroy the need for musicians. Within a matter of decades, the player piano market was effectively gone... and yet, these massive changes designed solely to deal with the player piano have stuck around ever since. Now apply that same story to basically every other technological innovation, and that gets you copyright law.

If there was a key theme running throughout the conference, though, it was on the single biggest change that the '76 Act brought into play: switching the copyright system from opt-in to everyone-automatically-in (not even to "opt-out" realistically speaking). In the terminology of copyright lawyers, in the '09 Act you had "formalities" to get copyright. In the '76 Act, you don't. While it was heartening to hear an awful lot of support for the idea of moving back to an opt-in system (i.e., if you want copyright protection, you need to proactively register/add a notice to get it, rather than automatically getting it on everything at the moment of expression), there was plenty of disagreement. Registrar of copyrights Marybeth Peters (who has a long history of supporting worrisome expansion of copyright law) kicked off the day by talking about why it was a good thing to switch to automatically in, because the old system resulted in too many questions about whether or not something was in the public domain.

Later on, Jon Baumgarten, who also participated in crafting the '76 Act, berated supporters of an opt-in system, saying that having practiced under it, it was only good for the lawyers, because everyone spent all of their time trying to determine ways to prove that someone had screwed up registering their copyrights, and thus the end result was lots of works accidentally fell into the public domain. On this last point, Peters concluded her remarks with the rather stunning statement "I'm so glad that copyright law no longer allows so much stuff to get into the public domain." (I'm paraphrasing the exact statement, but it was close... hopefully video will be up shortly and I can get the exact quote).

Think about that for a second. Yes, the context is important: her problem was mostly with items getting into the public domain because of confusion in the registration process, but it suggests a mindset that says "the public domain is bad." Later speakers pointed out that the difficulty of putting a copyright on creative works was actually a feature of the system, intended by the Founding Fathers to be difficult on purpose, because they believed how important it was to have a large and fruitful public domain.

Also, what was stunning was how much the "old guard" such as Peters and Baumgarten insist that an opt-in system can't work because it was such a mess under the '09 Act. They seem to be confusing the '09 implementation with the entire idea of opt-in. Sure, things were a mess before '76, but perhaps the problem was with the specifics of the "formalities" rather than with the concept itself. And, they don't even seem to acknowledge that modern technology could (and, in fact, should) change the entire thinking around copyright and how any sort of registration/opt-in process might work. And, in fact, David Nimmer's final keynote suggested that new technological solutions (he discussed a hypothetical system amusingly named "the panopticon") has shifted his thinking from being totally 100% against formalities to now believing that an opt-in system absolutely makes sense.

This post is long enough, even though there were plenty of other interesting discussions, but I did want to bring up three separate points that were interesting:

• Bill Patry (whose blog is seriously missed) tried to hammer home the point that it's absolutely ridiculous that Congress doesn't ever look at copyright law in terms of whether or not it promotes the progress, and totally trashed anyone (including Supreme Court Justices) who seem to think that the "to promote the progress..." part of the Constitution is meaningless preamble, even noting that in 1909 the legislative history made it quite clear that anything that did not promote the progress was outside the scope of Congress's power. It's sad that both Congress and the Supreme Court now seem to ignore this point.
• International trade agreements are evil when it comes to copyright. Sorry, but it needs to be said. There was a lot more talk about whether or not certain changes in copyright law would keep us in line with either the Berne Convention or TRIPs (and soon, ACTA!) than about whether or not it made sense. Basically, these trade negotiations, often pushed by industry reps without considering consequences for the public, have locked us into a narrow range of bad options. We simply can't do what's best for society and creativity, because we agreed to be bound by some really bad trade agreements. No wonder the industry loves them. They get to put a stranglehold on pertinent discussion (does this promote the progress?) and force people into discussing something entirely separate (does this violate our trade agreements?). It gets everyone focused on the trees and missing the forest.
• There's a lot of bubbling concern about conflicts between copyright law and the First Amendment. I'd mentioned how often this issue seemed to be coming up lately, and this event was no exception. While the old guard again insists this matter is settled and there's absolutely no conflict between the two, a large number of scholars disagree, and point out that it's a big open question, and some earlier rulings conflict and leave open some big loopholes to be challenged in court. Expect this issue to get a lot more play in the coming years.

All in all, a very interesting event that generated lots of thoughts and discussions.

Filed Under: 1909 act, copyright, jon baumgarten, marybeth peters, william patry