RE: Another post about the Georgia State copyright case

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

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


>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