Re: Another post about the Georgia State copyright case

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

My opinion about the old GSU policy, or about the opinions of 
Kenny or Professor Patterson, would be entirely irrelevant.  But 
it should be obvious that the motivation behind this suit is to 
force more money toward the CCC.  This is why the CCC agreed to 
help finance the suit in the first place.  The goal for the 
publishers is not damages but sustained, long-term revenue 
increases; the fact that damages are not available is a red 
herring.

Kevin L. Smith, M.L.S., J.D.
Director of Scholarly Communications
Duke University, Perkins Library
P.O. Box 90193
919-668-4451
kevin.l.smith@duke.edu


On Jun 17, 2011, at 5:21 PM, "Sandy Thatcher"
<sandy.thatcher@alumni.princeton.edu> wrote:

> This is what Kenneth Crews said about the Georgia Regents
> copyright policy in his 1993 book:
>
>> Few institutions share the boldness of the University of
>> Georgia. The university should be commended for avoiding form
>> policy statements and for identifying the broadest scope of user
>> rights. The Georgia policy is worthy of close study by any
>> university establishing its own standards, but no university
>> should adopt those standards without a careful assessment of
>> their full substantive implications and the possible
>> consequences - both the beneficial and the troubleso
>> consequences - of testing the law's limits so extensively." (pp.
>> 117-118)
>
> So, Kevin, are you disagreeing with Ken that the original Georgia
> policy was extreme and did not merit a challenge from publishers?
> Do you agree with L. Ray Patterson's theory that all copyright
> for educational use is use of the work rather than use of the
> copyright and hence not an infringement, no matter how much is
> copied?
>
> As to pecuniary motivation, the plaintiffs fully realized that
> the 11th Amendment constraint meant that there would be no
> possibility of recovering damages for past infringements
> extending over decades.
>
> And what about the Google suit? The publishers that brought that
> suit also did not go for damages, but just an injunction. How
> does that add up to a generalization that all suits are brought
> with the goal of making "substantially more money out of it than
> they spend prosecuting it"?
>
> Sandy Thatcher
>
>
> At 4:50 PM -0400 6/16/11, Kevin Smith wrote:
>> The lawsuit itself is what has been subsidized.  The Copyright
>> Clearance Center is bearing half of the plaintiff's costs,
>> according to court papers.  I have heard, but have no direct
>> evidence, that the AAP is also paying some of the bills.
>>
>> It is certainly true that there is ideology (or principle, since
>> the other guy's principles always look like ideology) on both
>> sides of this case, as there is in most lawsuits.  But it was the
>> publishers who decided to bring the case in the first place, and
>> it was that decision that Sandy and I were debating.  I still
>> maintain that something as expensive as a federal lawsuit goes
>> not get initiated unless the plaintiffs (or the others who are
>> paying for the suit) expect to make substantially more money out
>> of it then they spend prosecuting it.
>>
>> Also, the origin of the doomsday rhetoric is naturally in the
>> plaintiff's complaint, where they try in the first instance to
>> convince the court that there is a terrible wrong that justifies
>> bringing the case and which must be set right.  I entirely agree
>> that the rhetoric here has been overheated, for the simple reason
>> that I am unconvinced by the claims made about the "original sin"
>> on which the lawsuit is founded.
>>
>> Kevin L. Smith, M.L.S., J.D.
>> Director of Scholarly Communications
>> Duke University, Perkins Library
>> kevin.l.smith@duke.edu
>>
>>
>> On Jun 15, 2011, at 7:32 PM, "Alex Holzman" <aholzman@temple.edu> wrote:
>>
>>> Excuse me, but who subsidizes Oxford, Cambridge, or Sage?  The
>>> first two return rather substantial amounts of money to their
>>> home universities, who do not seem to be complaining about what
>>> their presses are doing.  Indeed, some years ago Oxford
>>> University specifically used some of the "surplus" its Press
>>> generated to help the university compete with salaries offered
>>> to star faculty members by American Ivy League and other
>>> well-off schools.  I'm pretty sure that didn't help OUP's
>>> year-to-year operations.  Pint is, this is all a lot more
>>> complicated than evil publishers aligned against virtuous
>>> librarians.
>>>
>>> To my mind, this whole episode began with the extreme policy
>>> Sandy cites.  Extreme ideological behavior tends to beget equal
>>> and opposite reactions; I expect blame and credit can be found
>>> everywhere, depending on the observer's point of view.  The
>>> really unfortunate aspect in all this is that it tends to drown
>>> out moderate voices on both sides who are trying to discover
>>> new and innovative ways to cooperate.  Though ideologically
>>> driven behavior seems to be part of the zeitgeist, many
>>> university press publishers and many librarians have worked to
>>> counter it over the past few years, exemplified by the ARL-AAUP
>>> working group founded this past year following several years of
>>> gradually increasing library-press meetings and exchanges and
>>> working together on actual projects.  Kudos to the moderates.
>>>
>>> Alex Holzman
>>> Director
>>> Temple University Press
>>>
>>> On Tue, Jun 14, 2011 at 7:43 PM, Kevin Smith
>>> <kevin.l.smith@duke.edu> wrote:
>>>
>>>> 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
>>>> kevin.l.smith@duke.edu