eReserves and Fair Use Again

You may remember that the Georgia State e-reserves case resulted in a District Court ruling largely favorable to libraries, but with a bright line 10% standard applied for fair use. The publishers appealed and the higher court sent the case back to the District Court for a new fair use analysis.

The new ruling, yesterday, is still quite favorable to libraries and does away with the 10% rule. It does apply a financial analysis to each posted excerpt based on data available to the court after the fact, but not to the library or professor beforehand.

Both Keven Smith and Brandon Butler have written helpful analyses.

Some bottom-line advice from Smith:

 All we can do, then, is to continue to think carefully about each instance of fair use, and make responsible decisions.  We still have some rules of thumb, and also some places where we will need to think in a more granular way.  But nothing in these rulings need fundamentally upset good, responsible library practice.

The second takeaway from this decision is that we should resort to paying for licenses only very rarely, and when there is no other alternative.  The simple fact is that the nature of the analysis that the Court of Appeals pushed Judge Evans into is such that licensing income for the publishers narrows the scope for fair use by libraries.  To my mind, this means that whenever we are faced with an e-reserves request that may not fall easily into fair use, we should look at ways to improve the fair use situation before we decide to license the excerpt.  Can we link to an already licensed version?  Can we shorten the excerpt?  Buying a separate license should be a last resort.  Doing extensive business with the Copyright Clearance Center, including purchase of their blanket campus license, is not, in my opinion, a way to buy reassurance and security; instead, it increases the risk that our space for fair use will shrink over time.

And, from Butler:

Her new analysis, stripped of its bright lines and clear arithmetic, seems to amount to nothing more than her opinion about whether the use will substantially harm the market value (actual and potential) for the works used. How much harm is “substantial”? Well, in several places Judge Evans says the harm must be so extensive as to risk undermining the publishers’ entire motivation to publish the work. So, it would need to eat their entire profit margin (or enough that they decide it’s not worth the bother to publish). And in at least one place she seems to suggest that, because there is no marginal cost for a publisher to offer to license use of excerpts from a work, there is no real harm when GSU decides not to pay the license. This is heady stuff, and could offer a very wide berth for educational fair use of electronic excerpts.

Victory for Fair Use

copyrightCopyright holders must consider fair use before sending a takedown notice.

From the Electronic Frontier Foundation:

A federal appeals court sided with EFF yesterday on several of the major questions at issue in the long-running Lenz v. Universal copyright case. Lenz—sometimes referred to as the “Dancing Baby” case because it centers on a 29-second home video of a toddler dancing with a song by the musician Prince in the background—has long been recognized as a test of the rights enjoyed by users, and the obligations facing people who want to take down online speech.

The big takeaway of yesterday’s opinion is, yes, that copyright holders must consider fair use before sending a takedown notice. But just as important is the basis of that conclusion: again today we have a federal court making it clear that fair use is not just a carve-out of the copyright system but a right on the same level of those described in the rest of the statute.

For example, the court states explicitly that “Fair use is not just excused by the law, it is wholly authorized by the law.” However well attested that principle is in the statute and in case law, it is still sometimes considered controversial. Hopefully this decision puts that debate to rest: whether the copyright holder grants permission or not, a fair use is an authorized use.

How copying promotes creativity

Allosaurus

Jonathan Band makes some interesting observations in this post about film score composer Michael Giacchino (Jurassic World):

Giacchino told NPR how he became obsessed with Steven Spielberg films as he was       growing up:

“When I wasn’t able to get myself to a theater to re-watch, you know, E.T. for the hundredth time, or Raiders of the Lost Ark, or Star Wars, the only way to relive those movies was to listen to the soundtrack.” When he did go to the theaters, Giacchino would sneak in tape recorders so he could listen to the soundtracks later. “I still have all those cassettes,” he says. “I would just listen to Raiders of the Lost Ark over and over and over.”

Band points out:

But imagine a budding filmmaker who wants to study the various film and narrative techniques used in Jurassic World. Because of the studios’ windowing strategy, a DVD of the film probably would not be available for at least 120 days. Until then, the filmmaker might not be able to rely on fair use to make his own copy. 18 U.S.C. § 2319B, which imposes felony penalties on the use of an audiovisual recording device to make a copy of a motion picture in a motion picture exhibition facility, does not recognize fair use as a defense.

Image: By FabSubeject (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

Re:Create coalition promotes balanced copyright

 

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ARL announced today that it is joining Re:Create — a coalition formed to promote balanced copyright policy. This looks like an organization to watch.

Today, April 28, 2015, ARL joined US technology companies, trade associations, and civil society organizations in the launch of Re:Create, a coalition that promotes balanced copyright policy. A balanced copyright system depends on limitations and exceptions, such as fair use. As technology advances, it is imperative that the copyright law is responsive to these changes, balancing the interests of creators of copyrighted information and products with the interests of users of those products.

Re:Create promotes and defends the important balance of copyright. ARL’s member institutions, as well as the general public, depend on balanced copyright that includes robust limitations and exceptions. A balanced system ensures that copyright does not limit or impede new and valuable technologies and uses.

Fair Use “Ripped from the Headlines”

Pont_Neuf,_Paris_July_2014Laura Quilter, Copyright and Information Policy Librarian at UMass, Amherst posted a fascinating analysis of a recent fair use case that involved paraphrasing Faulkner in a Woody Allen film. She had used the example in a quiz and about a quarter of respondents did not think the case was a fair use. Her analysis is thorough and fun to read. Like getting your history from historical novels, except more accurate.

Paraphrasing a famous quote from a novelist, in a commercially released film.

Almost a quarter of respondents thought this should be licensed. The Faulkner estate agreed, actually, and sued Sony Pictures for the paraphrase of William Faulkner’s quote in Woody Allen’s “Midnight in Paris”.  Eriq Gardner for the Hollywood Reporter covered the case, which resulted in a finding of fair use in July, 2013.

The quote in the movie goes like this:

“The past is not dead! Actually, it’s not even past. You know who said that? Faulkner, and he was right. I met him, too. I ran into him at a dinner party.”

And the original quote, in Requiem for a Nun, is certainly one of Faulkner’s more memorable quotes:

“The past is never dead.  It’s not even past.”

This brings up my first point, which is that reasonable people can disagree about fair use.

 

Photo By Frédérik Vuille (quai de paris soiree lune_) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons