RE: Another post about the Georgia State copyright case

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

I have neither forgotten nor chosen to ignore any such thing; I 
simply never suggested that the checklist was a part of the old 
GSU policy.  A quick review of the thread will indicate that I 
was responding to the claim that GSU's use of the checklist, in 
its new policy, represented a "key difference" between that 
policy and the one at Columbia.  I was pointing out that there is 
not, in fact, a clear difference between how GSU presents its 
checklist and how other schools, some of whom developed their 
policies in consultation with the AAP, present their own 
versions.  There was no "language that GSU added," they simply 
borrowed their wording from a source they thought was safe.

I have studiously tried to keep my comments focused on the 
current posture of the suit, including issues of how it is 
financed, what its likely economic impact will be, and how the 
policy actually being contested resembles or differs from those 
at other institutions.  I thought we were discussing this last 
point; if I misunderstood I apologize.

In general I think we have exhausted those issues that most 
needed to be clarified, and I fear we have moved past the point 
where this conversation is helpful to readers of the list.  With 
thanks for the dialogue, I respectfully suggest that we let it 
lapse until there is a decision, when we will all have fresh 
material to consider.

Kevin L. Smith, M.L.S., J.D.
Director of Scholarly Communications
Duke University, Perkins Library
Durham, NC 27708
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: Monday, June 20, 2011 7:09 PM
To: liblicense-l@lists.yale.edu
Subject: Re: Another post about the Georgia State copyright case

Kevin forgets, or chooses to ignore, the fact that the checklist 
did not even exist in the Regents policy when GSU was sued in 
2008. It was adopted AFTER the original policy was abandoned at 
the insistence of the Georgia Attorney General. Thus it is simply 
untrue that the plaintiffs sued GSU because of the checklist. As 
I understand the situation, the suit was continued despite this 
change because there was evidence that GSU was ignoring its own 
policy and copying continued pretty much as it had before the 
change. I cannot explain why the Cornell checklist, with that 
language, was considered acceptable.  For reasons I explained, it 
purveys an oversimplified idea of the way fair-use analysis is 
supposed to work.

Sandy Thatcher


At 4:48 PM -0400 6/17/11, Kevin Smith wrote:
>It is interesting that identical language accompanies the
>checklist adopted by Cornell University during its negotiations
>with the AAP to avoid a lawsuit back in 2005.  See their
>checklist at:
>http://www.copyright.cornell.edu/policies/docs/Fair_Use_Checklist.pdf.
>
>If this language is a key to why GSU was sued, why was Cornell
>not only spared a lawsuit, but advertised by the AAP as a model
>citizen?
>
>It seems to me that what has changed is the publishers' tolerance
>for what had long been considered acceptable fair use practice.
>As the economics of publishing worsened and new sources of income
>seemed necessary, policies that were approved of six years ago
>suddenly became behavior worthy of a lawsuit.
>
>Kevin L. Smith, M.L.S., J.D.
>Director of Scholarly Communications
>Duke University, Perkins Library
>P.O. Box 90193
>kevin.l.smith@duke.edu