RE: Another post about the Georgia State copyright case

["Peter B. Hirtle" <pbh6@cornell.edu>]

A small clarification to Kevin Smith's comment below:  The 
copyright checklist in use at Cornell was developed after the AAP 
had withdrawn from direct confrontation with the University.  It 
was prepared by Cornell's legal staff, without any input from the 
AAP.

And I would challenge Tabb's characterization that Cornell 
"capitulated" to the AAP in the first place.  We should know 
better than to trust the press statements that the AAP issued to 
make it look like it had won something.  In fact, if you compare 
the previous ereserve policy to the current electronic course 
content copyright guidelines, developed by a faculty group in 
response to the discussions with the AAP, you will see that the 
new policy is actually more open to fair use analyses than the 
old one.  It was developed in the firm belief that decisions that 
centered around the creation of print anthologies in commercial 
copy operations (the MDS and NYU cases) were not applicable to 
what libraries and universities do: making available 
noncommercially and efficiently to students a selection of 
materials that they can elect to view or print as part of their 
educational endeavors.  There was no discussion between Cornell 
and the AAP over what constituted acceptable fair use, and I 
don't think any agreement could have been reached on the issue.

One of the most pleasant surprises about the GSU case has been 
that Georgia State has been as forthright in defending fair use 
as I think Cornell would have been had the disagreement 
continued.

Peter Hirtle

-----Original Message-----
From: owner-liblicense-l@lists.yale.edu
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Kevin Smith
Sent: Friday, June 17, 2011 4:48 PM
To: liblicense-l@lists.yale.edu
Subject: Re: Another post about the Georgia State copyright case

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
kevin.l.smith@duke.edu


On Jun 16, 2011, at 5:24 PM, "Sandy Thatcher"
<sandy.thatcher@alumni.princeton.edu> wrote:

> The checklist is accessible here:
> http://www.usg.edu/copyright/fair_use_checklist
>
> Note how the Instructions begin: "Where the factors favoring fair use
> outnumber those against it, reliance on fair use is justified. Where
> fewer than half the factors favor fair use, instructors should seek
> permission from the rights holder. Where the factors are evenly split,
> instructors should consider the total facts weighing in favor of fair
> use as opposed to the total facts weighing against fair use in
> deciding whether fair use is justified."
>
> Copyright expert Robert Kasunic writing in the Columbia Journal of Law
> & the Arts has this to say that shows how contrary these instructions
> are to the spirit of fair-use analysis::
>
> "Only by accepting the value of all of the factors will the promise of
> the multifaceted approach espoused by Judge Leval (and Justice Souter
> in Campbell) become a reality. No factor is superior, nor is any
> interrelationship of the factors dominant.
> All of the factors are perspectives of the whole picture, and the
> whole picture can only be understood by mining all of the information
> that is available from the unique perspective of each factor. The
> factors are guides to intensive fact gathering. None of the factors
> weigh in favor or against fair use. Rather, their cumulative
> information provides the basis for the analysis as a whole. The fair
> use analysis is not a tally sheet, but an examination of the
> interrelationships of the facts and the factors, while keeping in mind
> the primary purpose of copyright."
> Note especially the repudiation of the idea that fair-use analysis is
> a "tally sheet"!
>
> Contrast this with the checklist as presented at Columbia University,
> prepared by Kenneth Crews:
> http://copyright.columbia.edu/copyright/fair-use/fair-use-checklist/.
>
> Nowhere do you find this language about adding up checks in each
> column to arrive at a fair-use decision. This was language that GSU
> added to the policy when it borrowed it from Columbia and serves
> further to show how differently GSU acts from other universities in
> this context--still an outlier, even when it tried to conform more to
> the norm of policies adopted elsewhere.
>
> I agree that much will depend on whether the judge in the GSU case
> notices this crucial difference and will choose to make anything of
> it. IMHO, it is a key difference.
>
> Sandy Thatcher