Four Cases.

Kevin Smith – Duke University

and

William Cross – North Carolina State University

Georgia State University is sued by publishers for

not seeking © permission

Sovereign Immunity = No damages

Funded by CCC to force all libraries to pay permission fees

Georgia State

Guidelines for Classroom Copying

Coursepack cases

Subsequent semester rule

Permission fees as heart of publisher business

Copyright Conventional Wisdom

Guidelines for Classroom Copying

Coursepack cases

Subsequent semester rule

Permission fees as heart of publisher business

Copyright Myths

Purpose and Character:

Strongly favors nonprofit, educational use

Nature of Original: Favors use of non-fiction

Amount & Substantiality:

Favors use of 10%/one chapter

Market Harm: Favors user unless “readily available” at a “reasonable” price in a

“convenient” format

Fair Use Framework

GSU wins on 70 of 75 items

De Minimus Non Curat Lex

Libraries are favored entities acting in good faith

Not binding: persuasive authority only

Already being appealed

Georgia State - Takeaways

But . . .

Hathi & 5 university

partners sued over alleged infringement in preservation and access activities of Trust

Ambiguous role of orphan works

Author’s Guild v. HathiTrust

AG claimed that § 108, library

copying for preservation and ILL, foreclosed a fair use defense.

Activities such as mirror sites, allowing access to snippets or for print-disabled go beyond 108.

Judge rejected this argument

Sweeping victory on fair use for HathiTrust

Implications for library digitization projects

No fair use for you!

In the HathiTrust case, judge said mass digitization

was transformative. Different purpose justified finding, in spite of exact

copying.

Copying & distribution via HathiTrust clear fair use where purpose was: Indexing

Preservation

Access to “snippets”

Access for text-disabled

Different from GSU

“I cannot imagine a definition of fair used that would not encompass the transformative uses made by the defendants and would require that I terminate this invaluable contribution to the progress of science and the cultivation of the arts that at the same time effectuates the ideals of the ADA.”

Nevertheless, the Authors’ Guild is appealing

Issue of access to orphan works was not decided!

An easy case

UCLA streaming AIME’s Shakespeare videos

without permission

Litigation two-step leads to dismissal earlier this year

Order filed in November explaining the dismissal

AIME v. UCLA

Standing – Plaintiff doesn’t own the content

Sovereign Immunity – Like in Georgia State

Qualified Immunity – Need constructive knowledge

that library actions are “clear violations of

established copyright law.”

Case Dismissed

Purpose and Character:

Favors nonprofit, educational use

Nature of Original: Creative but used educationally

Amount & Substantiality:

Entire works but “time shifting” like in Sony

Market Harm: No harm because of analogy to classroom use

Fair Use - At Least ‘Ambiguous’

UCLA - Takeaways

No final word on fair use and streaming – but another good data point for fair use in libraries

Controlled by licensing

“Qualified Immunity”

Can a student resell textbooks purchased abroad?

Lower courts said no – “First Sale” applies only to works manufactured in the US.

“Lawfully made under this title” and the impact of the manufacturing clause.

Supreme Court split on similar issue two years ago; heard this case on October 29.

Kirtsaeng v. Wiley

Libraries partner with variety

of businesses that rely on re-sale to defend first sale.

Can I resell my Toyota?

Asking Court to find that first sale applies to an goods manufactured with authority of rights holder (i.e., not pirated).

Recognize changed situation due to international © treaties.

Owners’ Rights Initiative

First sale is cornerstone of library lending.

Do we know where our books are manufactured?

Exceptions in manufacturing clause not clear or comprehensive.

Does importation for lending actually allow lending?

Are foreign-made videos “library use only”?

What about materials purchased domestically but made elsewhere?

Bad decision could be devastating.

For libraries, students, resellers of all kinds.

The stakes for libraries

Court likely to hold for Wiley.

Will probably add language to protect libraries.

Clarify that exceptions in manufacturing clause allow lending.

Invoke fair use.

Probably will defer to Congress on broader issue.

Would leave students in a bad place

Chrystal Ball time

Presented by Dave Shumaker,

Clinical Associate Professor, School of

Library and Information Science, Catholic University of America

January 23, 2013

2:00-3:00pm, Eastern

Stay tuned for more information

Join us for the next LMD webinar on Embedded Librarianship