[nfais-l] NFAIS Enotes, 2012

[jilloneill at nfais.org]

NFAIS Enotes, #4, 2012
Written and Compiled by Jill O’Neill
 
The Georgia State University Decision 


The issue of E-reserves has been a source of tension for research communities and those that serve them for some time. Content providers have held that permissible use of digital content for classroom instruction requires licensing of that content apart from the licensing of content done by the academic library, citing as precedents American Geophysical Union v. Texaco and Princeton University Press v. Michigan Document Services. Librarians and professors have held that content licensed or purchased by the library or by the professor for instructional use would be a fair use of digitized versions for access by students without specific permission from the rights holder. Long under debate, it is not an area of easy agreement, as both Library Journal and Publisher’s Weekly coverage recognizes.  “In 2003, AAP lawyers targeted the University of California, San Diego. In 2006, Cornell University and AAP released joint guidelines for electronic content, which Cornell officials say were in fact drafted under an implicit threat of litigation. And in January of 2008, AAP praised new accords with Syracuse, Marquette, and Hofstra universities regarding new guidelines for the use of electronic content, also, reportedly, with the stick of litigation.”(see:  [http://www.publishersweekly.com/pw/by-topic/industry-news/publisher-news/article/43500-a-failure-to-communicate.html] http://www.publishersweekly.com/pw/by-topic/industry-news/publisher-news/article/43500-a-failure-to-communicate.html). The 2007 coverage by Library Journal of the tension over e-reserves also references the Cornell guidelines, but makes it clear that there was no true consensus as to what constituted best practices in this area (see; [http://www.libraryjournal.com/article/CA6483876.html] http://www.libraryjournal.com/article/CA6483876.html).  By the time, Cambridge University Press, Sage Publications and Oxford University Press sued Georgia State University (GSU) in 2008, even the New York Times recognized that the issue had become a long-simmering pot that clearly needed watching.  (see: [http://www.nytimes.com/2008/04/16/technology/16school.html?pagewanted=print] http://www.nytimes.com/2008/04/16/technology/16school.html?pagewanted=print).
 
When I surveyed Internet conversations published in the period between 2009 and 2011 about the Georgia State University  e-reserves case, it was clear that anxiety levels within academic circles were high. Paul Courant wrote in June of 2011, “As a faculty member, I do not know that I could comply with the restrictions in the proposed injunction for using copyrighted material in my classroom; they are too onerous and much too expensive.”  (see: [http://paulcourant.net/2011/06/09/the-georgia-state-filing-a-declaration-of-war-on-the-faculty/] http://paulcourant.net/2011/06/09/the-georgia-state-filing-a-declaration-of-war-on-the-faculty/). While Chief Scholarly Communications Office Kevin Smith of Duke University feared that if the plaintiffs’ proposed injunction were to be found acceptable to the court, “It would make GSU responsible for every conceivable act of copying that took place on their campus.  In short, administrators at Georgia State would have to look over the shoulders of each faculty member whenever they uploaded course material to an LMS or any other web page.  (see: [http://blogs.library.duke.edu/scholcomm/2011/05/13/a-nightmare-scenario-for-higher-education/] http://blogs.library.duke.edu/scholcomm/2011/05/13/a-nightmare-scenario-for-higher-education/). 
 
Background on the history surrounding the litigation of this case is fairly readily found. Sandy Thatcher (then with Penn State University Press) wrote an 2010 article for Against the Grain (see:[http://www.against-the-grain.com/2010/03/v-22-1-from-the-university-presses-georgia-state-and-unfair-use-a-rebuttal-to-kenneth-crews/] http://www.against-the-grain.com/2010/03/v-22-1-from-the-university-presses-georgia-state-and-unfair-use-a-rebuttal-to-kenneth-crews/ ) about some of the wrangling that had gone on in the state of Georgia over establishing guidelines for use in the state’s public institutions of higher education. While his article is not entirely objective in its tone, there are sufficient links to opposing points of view contained within the article to make it useful background on the on-going tensions surrounding copies made for e-reserves as well as the disputed Georgia State University practices. Thatcher noted that GSU had a very broad interpretation of what might be used without specific permission from the publishers. 
 
So it was somewhat startling when the ruling handed down in 2012 actually appeared to confirm in large part the fair use nature of the e-reserve practices in place at Georgia State. In a lengthy examination of 75 instances where publishers had claimed infringement, the court found that only five of those instances truly represented inappropriate copying, exceeding the bounds of fair use. Beginning on page 47 of the ruling, Judge Orinda Evans couched her final decision in an examination of four well-known factors ([http://www.copyright.gov/fls/fl102.html] http://www.copyright.gov/fls/fl102.html) in determining whether something was fair use or not. 
 
There is a useful overview that analyzed the ruling from an uninterested legal perspective:
(see: [http://www.mondaq.com/unitedstates/x/179770/Copyright/The+Devils+In+The+Details+Dissecting+The+350Page+Georgia+State+University+Electronic+Reserve+Copyright+Ruling] http://www.mondaq.com/unitedstates/x/179770/Copyright/The+Devils+In+The+Details+Dissecting+The+350Page+Georgia+State+University+Electronic+Reserve+Copyright+Ruling).
Donald A. Kruft, a litigator with Foley & Hoag, provides for the general reader an overview of the case and the particular points in the ruling that may be considered controversial by legal practitioners. Speaking in the most general terms, the judge broadly favored copying for e-reserve use for education in non-profit academic environments (factor 1 – character of the use) relying on a particular exception claimed by Justice David Souter in the context of classroom distribution. With regard to the second factor, the nature of the copyrighted work, the judge held that content that might be deemed criticism and comment deserved greater exposure for purposes of education, a point which Kruft notes may be a misreading of the original statute. With regard to the amount and substantiality of the portion used (factor 3), Judge Evans laid down a relatively specific “bright line” for purposes of determining boundaries of appropriate copying, differing substantially from the U.S. Copyright Office’s previously published guidelines for classroom use. Finally, the court looked at the effect of the copying on the potential market (Factor 4) and determined that this would depend on the availability of a licensing mechanism for specific digital excerpts. In this the judge ignored previous court rulings regarding photocopying of content and Krufts writes, “This ruling arguably leaves open the danger that defendants by choosing an alternative medium in which to make unauthorized copies can manipulate the fair use analysis in their favor.” The remaining pages of the court document were devoted to examining each of the 75 instances of unauthorized copying by Georgia State faculty in the light of the court’s analysis of the four factors. 
 
ARL’s Director of Public Policy Initiatives, Branden C. Butler, issued an 8-page brief that also covers the nature of the decision (see: [http://www.arl.org/bm~doc/gsu_issuebrief_15may12.pdf] http://www.arl.org/bm~doc/gsu_issuebrief_15may12.pdf).
 
It is important to reiterate that from the perspective of many content providers, this case was about maintaining protection surrounding course reserves. Note the positioning by Peter Givler, Executive Director of the American Association of University Presses, in this May 2011 Chronicle of Higher Education opinion piece (see:
[http://chronicle.com/article/Whats-at-Stake-in-the-Georgia/127718/] http://chronicle.com/article/Whats-at-Stake-in-the-Georgia/127718/).
Despite the fact that the academic presses involved in the suit are, by university-press standards, large, it is perhaps the smaller university presses that have the most to lose in a world where digital course packs, provided gratis and without compensation to authors or publishers, replace book sales and permissions income. 
 
The court’s finding suggests that the onus is on the small university presses to make their content readily available for licensing.  Much was made in the mainstream press of the fact that the losses totted in the judge’s opinion were slightly less than $800.00 for the five instances of infringement, an interpretation deemed questionable by content providers and their legal advisors. Emerging from the 2012 meeting of the AAUP were more in-the-trenches assessments of just how much of a loss such permissions revenue represented to operating presses. 
 
From the coverage by Inside Higher Ed: 
“If I lost my permissions income, two people would lose their jobs,” said one press director.
 
“If we lost our permissions income, that would be two fewer monographs per year we’d be publishing,” chimed in another.
 
“We buy our equipment with our permissions income, like computers and upgrades and stuff like that,” said a third. “And we don’t have a budget line for that otherwise.”
 
(see: [http://www.insidehighered.com/news/2012/06/21/university-presses-debate-how-reconcile-libraries-wake-georgia-state-copyright] http://www.insidehighered.com/news/2012/06/21/university-presses-debate-how-reconcile-libraries-wake-georgia-state-copyright).  From the perspective of these smaller presses, the loss of permissions revenue is hardly on the level of the judge’s few hundred dollars.
 
If the various parties can’t agree on the scope of fair use of digital content when it applies to textual materials, how slow will those same parties be when it comes to determining fair use of other materials such as images, video, and data sets? 
 
Very early in 2012, the Visual Resources Association (VRA) recently issued a formal Statement Regarding the Fair Use of Images For Teaching, Research and Study ([http://online.vraweb.org/vrab/vol38/iss1/5/] http://online.vraweb.org/vrab/vol38/iss1/5/). It offers the position that fair use would protect (among other things) the use of images (both large, high resolution images and thumbnails) on course websites and in other online study materials. Such a position might be a context for legitimate use where rights holders might disagree. The Motion Picture Association of America, always sensitive to issues of infringement and piracy, has raised concerns over the handling of videos and DVDs on campuses. The handling of data-sets is perhaps still too new to be subject to wrangling over rights and protections, but it seems likely to be only a matter of time. 
 
The VRA Statement was endorsed by the Association of Research Libraries (ARL) as the VRA positioning statement aligns well with ARL’s Code of Best Practices in Fair Use for Academic and Research Libraries ([http://www.arl.org/pp/ppcopyright/codefairuse/index.shtml] http://www.arl.org/pp/ppcopyright/codefairuse/index.shtml), issued in January 2012.  The ARL Code had been developed as a set of principles that the research library community could refer to in making judgment calls as to the legitimacy of a particular activity in copying or digitizing a particular piece of content for classroom use. Following the decision in the Georgia State University case, the FAQ for the Code noted that Judge Evans was slightly dismissive of the library community’s general thinking and practice surrounding fair use. Hence Evans’ development of a “bright line” regarding the specifics of how much material from a book might be included in electronic reserves before it became infringing. Because the library communities’ view had always been that there was a certain flexibility in determining fair use, Judge Evans’ “bright line” -- despite its generosity -- was deemed (at least publicly) as something of a constraint. The Art Libraries Society of North America, and the Center for Social Media endorsed ARL’s Code of Best Practices In Fair Use For Academic and Research Libraries.
 
Libraries worry about how their environment is changing on a variety of levels, but the legal frameworks surrounding basic library services surrounding lending and support of users’ requirements are particularly fruitful ground for growing anxiety.
 
As Jonathan Band, legal counsel to various Internet companies, providers of information technology, universities, and library associations, in speaking for an interview with Publishers Weekly put it: “...the tension isn't just over digital. Rulings in cases like Wiley v. Kirtsaeng, which is now before the Supreme Court, and Costco v. Omega would eliminate the first-sale doctrine with respect to print copies manufactured abroad. That would mean that libraries conceivably could not lend books that were printed abroad—not only books from foreign publishers, but American-published books that are merely printed overseas. That would be a blow right to the heart of the library enterprise. We raised this concern in Costco v. Omega, and what's interesting is that I don't recall any publisher ever coming to us and saying, "don't worry, we're never going to challenge your ability to lend foreign-printed books." It's a little troubling that no one's ever said that.”
(see: [http://www.publishersweekly.com/pw/by-topic/digital/copyright/article/52123-public-defender-pw-talks-with-jonathan-band-lawyer-to-the-library-community-ala-2012.html] http://www.publishersweekly.com/pw/by-topic/digital/copyright/article/52123-public-defender-pw-talks-with-jonathan-band-lawyer-to-the-library-community-ala-2012.html).
 
Rights holders who believe that they have been burned by user behaviors may not be feeling overly sympathetic to the various library communities’ needs, and earlier reports noted in this piece included statements that recognized that suing one’s customers is always problematic. Libraries are not, however, sitting and gloating over what some have called their victory over publishers in the GSU case; they know very well that this is only a breathing space before the next bout. 
 
 
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2012 NFAIS Supporters
 
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