Re: Another post about the Georgia State copyright case

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

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
>
>
>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