RE: Another post about the Georgia State copyright case

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

The plaintiffs in this case had clever lawyers as well, from a 
prominent New York law firm.  I very much doubt they would have 
encouraged their clients to bring a federal lawsuit in order to 
vindicate a sense of moral outrage; that is an extravagance even 
these wealthy, and well-subsidized, publishers could hardly 
afford.  This case is, and always has been, about money.  As it 
begins to appear that the gamble of suing one's customers in 
order to squeeze out greater revenues has been a losing one, it 
is inevitable, I suppose, that it will be dressed up as a matter 
of principle.

By the way, I do not address the issue of the application of the 
new GSU policy for the sound reason that I know nothing about it. 
All I have seen is the highly partisan rhetoric found in the 
plaintiffs' filings, which Sandy repeats here.  The judge may or 
may not see things the same way, and it is her opinion that 
matters now.

Kevin L. Smith, M.L.S., J.D.
Scholarly Communications Officer
Duke University
919-668-4451
kevin.l.smith@duke.edu<mailto:kevin.l.smith@duke.edu>
________________________________________

From: owner-liblicense-l@lists.yale.edu
[owner-liblicense-l@lists.yale.edu] On Behalf Of Sandy Thatcher [sandy.thatcher@alumni.princeton.edu]
Sent: Monday, June 13, 2011 5:33 PM
To: liblicense-l@lists.yale.edu
Subject: RE: Another post about the Georgia State copyright case

While my rehashing of my objections to the earlier GSU policy may 
be "irrelevant" to the judge's determination of fairness as 
regards the new policy, it is not irrelevant to explaining why 
this suit was brought in the first place and, therefore, to 
understanding the motives of the plaintiffs.

People seem to forget just how extreme that old policy was, 
though Ken Crews warned everyone against emulating it way back in 
the early 1980s. It justified practically any kind of 
"noncommercial" copying done for "educational" purposes no matter 
how much material was being copied, including entire books. Under 
that policy, GSU engaged in literally massive amounts of copying 
for which publishers received no compensation at all. But all of 
this "evidence" was thrown out once the state attorney's office 
demanded that the Georgia Regents abandon the old policy and 
adopt the new one. Hence all past sins were simply erased from 
the court record as legally irrelevant, though they certainly are 
not irrelevant to moral judgments of equity in this case.

In its place the Regents, advised by their clever lawyers, 
adopted a policy that was nearly identical to one that Ken Crews 
had prepared for Indiana, first, and then Columbia. But in doing 
so, they saddled it with an extra piece of baggage that Crews 
himself had wisely avoided, viz., the instructions about how to 
determine what is fair use by simply adding up the checks in the 
boxes of the checklist. This was structured in such a way as to 
lead unwary teachers in almost every instance to arrive at a 
conclusion that the use is fair. That is a key point in the 
plaintiff's argument, which Kevin does not address. Does he feel 
that such a "mechanical" exercise is true to the spirit of 
understanding fair use?

My point about NYU's settlement was not to equate it with a court 
ruling but simply to challenge Kevin's claim that a policy based 
on the Classroom Guidelines is sure to lead to "catastrophic 
consequences." Can he point to anything "catastrophic" that has 
ensued for NYU in all the nearly three decades since it began to 
bear that burden?

Sandy Thatcher


At 9:02 PM -0400 6/10/11, Kevin Smith wrote:

>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
>Durham, NC 27708
>kevin.l.smith@duke.edu