RE: Another post about the Georgia State copyright case

[Kevin Smith <kevin.l.smith@duke.edu>]

In response to Sandy's challenge directed to me in his first 
point, I would point out that the Classroom Copying Guidelines 
explicitly state in their preface that they are minimum 
standards, a safe harbor for deciding what is certainly fair use. 
They say very clearly that other uses in excess of the guidelines 
may be fair use as well.  So if they are treated as the maximum 
definition of fair use, as the plaintiffs in the GSU case want, 
then I do indeed believe that that is a fundamental alteration of 
the traditional contours of the law.  It would ignore the will of 
Congress that was expressed both in section 107 itself and in the 
very guidelines that are being touted.  It is significant to note 
that the GSU plaintiffs simply excised the preface to the 
guidelines when they filed a copy as an exhibit with their 
proposed injunction; obviously a full presentation of those 
guidelines would not have served their needs.  And, of course, 
what they ask for in that silly proposal goes well beyond even 
what the guidelines would require.

As for the Kinkos case, there are some legally significant 
nuances that are being ignored here.

First, the judge in that case was approving a settlement that had 
been negotiated by the parties, not issuing an order of the court 
that determined what the law was in the circumstances.  The 
standard for approving a settlement is different, as is its 
effect.  The judge must merely find that it is not unfair, so it 
is perfectly possible that NYU decided to accept standards far 
less than what fair use would really allow simply to get out of 
the litigation and the judge allowed them to make that decision. 
However unfortunate it is, sometimes the only option is to walk 
away from a bully.

Second, the Kinkos case involved a fundamentally different set of 
facts, where a commercial intermediary was doing the copying, not 
the non-profit university itself.  The classroom guidelines may 
have actually been an appropriate standard to govern that 
specific type of copying, because the first fair use factor did 
not favor the use.  But that says nothing at all about the 
different situation presented in the Georgia State case, where 
the purpose of the use is clearly non-commercial (as Judge Evans 
has already found in her dismissal of the vicarious infringement 
claim).

I think it is important to remind ourselves of where the Georgia 
State case stands as it goes to the judge. The claim of vicarious 
infringement was dismissed quite a while ago.  Then, in an order 
filed on the day the plaintiffs ended their case, the judge also 
dismissed the contributory infringement claim.  This is extremely 
important, because it amounts to a ruling that Georgia State has 
not behaved in a bad way, and that there new copyright policy is 
appropriate (Sandy's rehashing of his objections to the old 
policy in his point 5 is therefore irrelevant).  Together, these 
rulings say that the structures Georgia State has in place do not 
contribute to any infringement that may have taken place.  In her 
earlier ruling the judge went further and said that the new 
policy was a positive step toward ensuring fair use.

The only count that remains is an indirect infringement claim 
under the theory of "respondeat superior."  This legal doctrine 
can hold an employer liable for the torts of an employee as a 
matter of public policy, even though the employer has done 
nothing wrong (as has been determined in the GSU case).  The 
classic example of respondeat superior is holding a trucking 
company liable for negligent driving by an employee, largely in 
order to ensure that the money is available to compensate the 
victim of the negligence for any injuries.

So what is likely to happen in this case, where money damages are 
not available?  My best guess is that the judge will find that 
some of the decisions made by individual faculty members did 
exceed fair use, in spite of the new policy.  I think she is 
likely to order GSU to take remedial steps, such as increased 
education, to ensure that the policy is better understood and 
more closely adhered to.  For institutions that have similar 
policies in place and are already taking such steps, the impact 
of such a verdict would be negligible.

The upshot is that the publishers and the Copyright Clearance 
Center will have spent a lot of money (and lost a lot of 
goodwill) to obtain an almost meaningless victory. 
Unfortunately, I think the bad judgment that brought this case in 
the first place will probably continue to dominate the publishing 
lobby, and more money will be spent on an appeal.

Kevin L. Smith, M.L.S., J.D.
Director of Scholarly Communications
Duke University, Perkins Library
P.O. Box 90193
Durham, NC 27708
919-668-4451
kevin.l.smith@duke.edu

-----Original Message-----
From: owner-liblicense-l@lists.yale.edu
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Sandy Thatcher
Sent: Thursday, June 09, 2011 7:20 PM
To: liblicense-l@lists.yale.edu
Subject: Re: Another post about the Georgia State copyright case

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