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.
Copyright and Fair Use
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.
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.
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.
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.
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.
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.
Black Elk Speaks has been published by three different publishers in the U.S. The rarity that this movement creates is the availability of different editions of the book from different publishers. That is, there is a semblance of competition in the publishing of Black Elk Speaks. This anomaly brings into relief the normal effects of the copyright monopoly. It offers an opportunity to reflect on what alternatives to the strict publishing monopoly might look like.