December 19, 2014

Copyright and Fair Use

Copyright Incentives in the GSU Appeals Court Ruling | Peer to Peer Review

Kevin L. Smith

The word “incentive” appears ten times in the ruling issued last month by the Eleventh Circuit Court of Appeals in the Georgia State University (GSU) copyright infringement case, but it is slightly unclear in this rather odd opinion just who is the object of the incentive created by copyright. In seven of those ten instances, the incentive is clearly intended to benefit the author. But there are three sentences at the very end of the majority opinion (the other three uses of the word) where the court seems to interrupt its analysis to state that the incentive belongs to publishers, not authors. It is, I think, worth parsing this apparent contradiction in order to guess at how the trial court might think about incentives on remand.

Court Reverses Ruling on Publishers vs. Georgia State E-Reserve Case

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On October 17 the U.S. Court of Appeals for the 11th Circuit in Atlanta unanimously reversed the District Court’s ruling on the Publishers v. Georgia State University (GSU) Fair Use Case.

Hard Cases Make Bad Law | Peer to Peer Review

Kevin L. Smith

The legal adage that hard cases make bad law apparently has deep roots in English common law, and it was cited in a Supreme Court decision by no less a Justice than Oliver Wendell Holmes, Jr. Its applicability has been disputed over the years, but in recent weeks we have seen the truth of the maxim illustrated in some copyright debates. Colleagues have recently sent me two different stories where the extremes of copyright law are in play—hard cases, I suppose. Both offer confirmation that when the facts are really well outside the realm of normal expectations, people can draw very bad legal conclusions. But both also offer opportunities to remind ourselves of fundamental truths about law, journalism, and copyright.

Asserting Rights We Don’t Have: Libraries and “Permission To Publish” | Peer to Peer Review

Rick Anderson

In late June, a minor brouhaha erupted when the library at the University of Arkansas suspended reporters from the Washington Free Beacon, an online newspaper, from using its special collections. The reason given by library administrators was that on multiple occasions the newspaper’s reporters had published content from those collections without asking permission, as library policy requires. Much has been made in the right-wing press about the politics supposedly surrounding this conflict. I want to focus on a different issue: the practice of making patrons request library permission before republishing content drawn from documents in our special collections.

Harvard’s Copyright First Responders to the Rescue

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While most academic librarians are familiar with the basics of copyright law, the questions they’re asked are getting more complex. Issues of fair use and open access, MOOCs and repositories, and the push to digitize mean that students and faculty need more guidance on copyright matters than ever. This spring Kyle K. Courtney, Harvard University’s Copyright Advisor, brought together a pilot group of librarians known as Copyright First Responders (CFRs) to address this situation.

Of Bundles, Bindings, and the Next Great Copyright Law | Peer to Peer Review

Kevin L. Smith

Everyone who teaches copyright uses the same metaphor, I think. Copyright is a “bundle of sticks.” A property owner is said to have a bundle, where each “stick” represents an exclusive right. I had not really thought deeply about this metaphor until it was raised at a conference I attended whose theme was what a new copyright law might look like. There was a lot of talk about the problems with the current law. Until then it had not occurred to me that one of those problems was the bundle of rights itself.

Authors Guild Appeals Dismissal of Google Books Lawsuit

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Last November Judge Denny Chin dealt a blow to the lawsuit filed by publishers and the Author’s Guild against tech giant Google and its Google Books Service (GBS). Chin, of the 2nd Circuit U.S. Appeals Court, dismissed the case, which challenged the legality of GBS providing searchable PDFs of copyrighted works when Judge Denny. On Friday, April 11, the Guild filed an appeal in the case, marking the latest flareup in a long-running suit with major implications for copyright law in the U.S.

Kevin Gorman: Berkeley’s Wikipedian-in-Residence

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Whether librarians and faculty like it or not, Wikipedia remains at the heart of the research process for many undergraduate students. Rather than trying to stem the tide, the University of California Berkeley is trying to make students there into more responsible and effective users of the online encyclopedia. To that end, the university’s American Cultures program has hired alumni Kevin Gorman as the first Wikipedian-In-Residence at a US university.

What Rights Come with That Movie? | Backtalk

Imagine that you bought a new jacket on Amazon.com and received an email a month later from the manufacturer telling you that you paid the wrong amount for the jacket and that you owe the company several hundred dollars more. This may seem implausible, but for academic libraries that buy DVDs through distributors like Amazon.­com, it is a recurring problem: after buying DVDs at retail prices, they get an official-looking email saying they owe more.

Digital Firsts

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The U.S Department of Commerce (DoC) has been collecting public comment on the topic of the first sale doctrine and digital files in recent weeks; the agency was scheduled to meet about the issue on December 12 in Washington, DC. First sale doctrine is a set of exemptions to U.S. copyright law that permit consumers to resell used books or DVDs and libraries to loan books without seeking permission from publishers. Yet for reasons examined in more detail below, first sale exemptions have not translated well for digital content. The DoC’s call for public comment could mark the beginning of a campaign to reassess what copyright and first sale mean in the modern digital era, notes one expert.