Re: Another post about the Georgia State copyright case

[Sandy Thatcher <sandy.thatcher@alumni.princeton.edu>]

At the risk of not repeating myself too often, I would ask 
readers of this listserv to look at the comments I added to The 
Chronicle's recent story about this case here, which pretty much 
apply to Peggy Hoon's blog post also:

http://chronicle.com/article/Whats-at-Stake-in-the-Georgia/127718/?sid=at&utm_source=at&utm_medium=en.

If that is "premium" content and cannot be accessed by everyone, 
let me include here the most salient points of my eight-point 
reply:

1) In 1982 nine publishers brought suit against NYU and nine 
members of its faculty for illegal photocopying of materials in 
coursepacks. The case was settled out of court, and NYU was 
obliged to adopt the Classroom Guidelines as the standard rule 
for faculty to follow: http://www.nyu.edu/about/polic... So far 
as I am aware, no "catastrophic" consequences have ensued at 
NYU. And was the judge in this case guilty of "fundamentally" 
changing the rules of copyright for higher education by 
approving this settlement, as Kevin Smith seems to suggest?

4) Dr. Vaidhyanathan and other "experts" here do not distinguish 
between uses that merely produce more copies with no value added 
and uses that are "transformative" by adding such value. This is 
a fundamental distinction that was crucial in the decision 
reached by the judge who wrote the opinion in the landmark 
Texaco photocopying case, but it is generally ignored by the 
advocates of more aggressive fair use today. Fair use 
traditionally meant authors of new works quoting from and 
otherwise building upon older works; it never meant just 
reproducing copies for their own sake, which is what a printing 
machine does. Unfortunately, while claiming not to be changing 
the law of fair use as developed by the courts, Congress in 1976 
in fact did change it "fundamentally" by sanctioning its 
application to "multiple copies for classroom use," thus leading 
to all the subsequent litigation that has afflicted academic 
publishing.

5) Georgia State is portrayed here as the victim of greedy 
publishers who want to increase their "profits" (even though two 
of the plaintiffs are non-profit publishers). But GSU is hardly 
your typical university. In his 1983 book about fair use and 
universities, Kenneth Crews identified the policy adopted by the 
University of Georgia System as the most "lenient" of any he had 
surveyed, and he cautioned other universities against following 
Georgia's lead (pp. 117-18). The policy was so much on the 
extreme end of leniency that the Georgia state attorney's office 
refused to defend it in court and instead obliged GSU to adopt a 
different policy based on what Crews had developed for Indiana 
first and then Columbia. (For a fuller account, see my essay 
here: http://www.against-the-grain.c...

6) If the injunction seems harsh, consider that its 11th 
Amendment immunity from suit for damages allows GSU to avoid any 
financial penalties for all the infringements that it had engaged 
in for over two decades. Those lost revenues will never be 
regained by the publishers, who must settle for having GSU abide 
by stricter rules in the future. If anything, this is a partial 
righting of the balance of equity, but only partial because all 
of GSU's past sins are being wiped off the plate and no future 
revenues for the publishers under the new rules will ever recoup 
those thousands of dollars foregone. As for those future costs, a 
blanket license from the CCC that could cover not only e-reserve 
and coursepack copying but all other copying on GSU's campus will 
cost GSU less, I would wager, than the annual salary of an 
assistant football coach at the school. And such a license would 
do away with all the transactional costs of a system where 
permissions must be sought one by one. By the way, those who call 
for reform of copyright laws should consider supporting change so 
that the playing field between public and private universities 
that 11th Amendment immunity destroys can be restored.

7)Both Miller and Shulenburger emphasize that scholars publish 
for reasons other than personal monetary profit, and against the 
"stunning money grab" they perceive this suit to represent, they 
urge the virtues of open access. I agree that open access is an 
ideal worth pursuing-and I have advocated it in many of my own 
writings and supported it when I was president of the AAUP and 
drafted its statement on open access-but I would ask these 
gentlemen to show me who among the presidents of major research 
universities in the U.S. that operate presses have ever 
supported open access for monograph publishing when it comes to 
providing the financial resources to do so. Put your money where 
your mouth is and I will be glad to join in the chorus of 
praise. (At least one university in Canada, and several in 
Europe, have done so.)

8) Brandon Butler claims that e-reserves have "no effect on the 
legitimate market for academic publications," and he complains 
that the suit "could have, and should have, been avoided" if 
only libraries and researchers had worked on "a clear, unified, 
formal statement - grounded in a shared understanding of both the 
opportunities and the limitations of fair use." As director of a 
university press for twenty years during which sales of 
paperback editions for classroom use were steadily eroded as 
e-reserve and course-management systems proliferated, I would be 
happy to show him the evidence of the market effect he claims 
not to exist. And I would also remind him that the ARL, which he 
represents, was a full participant in the discussions under the 
auspices of CONFU in the mid-1990s that attempted to formulate 
e-reserve guidelines, which were drafted by none other than 
Kenneth Crews and endorsed by the AAUP, several smaller library 
associations, and various scholarly groups including the ACLS 
(then led by Stanley Katz), but rejected by the ARL (as well as 
the ALA and the AAP). This was indeed a lost opportunity that 
could have made this suit avoidable, but his own organization 
undermined it!

Sandy Thatcher


> >From Peggy Hoon, Center for Intellectual Property:
>
>The Georgia State University Lawsuit Injunction: Back To The Future.
>
>http://bit.ly/m5jJWe
>
>Bernie Sloan