Above: Cicely Wilson and Courtney Minick of Justia, holding Sheba and Belle, respectively

The Stanford Copyright and Fair Use site is pleased to announce a new feature to aid readers in keeping up and understanding copyright cases in a timely manner: copyright case summaries. To explain this new feature, Mary Minow talks to two editors of Justia, Cicely Wilson and Courtney Minick.

Mary Minow: Tell us about the copyright case summaries that the Stanford Fair Use site will be offering to readers.

Cicely Wilson and Courtney Minick: We will send a feed of summaries for cases that involve copyright issues to the Fair Use site. The summaries themselves are short blurbs that describe the key issues and holdings of a particular case. They are designed to give the reader a sense of whether they need or want to read the case in its entirety. The summaries link to the full text of the opinion on the Justia site, and they are also displayed on the same page as the opinion. This way someone browsing or searching for caselaw on our site gets the benefit of the overview as well.

As the number of opinion summaries grow in this feed, it serves as a survey of sorts for copyright and fair use law -- something that we hope will provide a lot of value as a free tool.

Minow: Who is writing the summaries?

Wilson and Minick: We have hired a team of experienced writers, all of whom are licensed attorneys, to write the summaries. They summarize the cases in a concise manner and tag the cases with relevant areas of law.

Minow: You're saying that a private company has hired a team of attorneys to write case law summaries, and then make those summaries available to the public for free? Why would you do that?

Wilson and Minick: Great question, Mary. At Justia we believe we all "do well by doing good."  To that end, one part of our core mission is to advance the availability of free legal resources on the web. The newsletter summaries fit in as a part of this by expanding access to the law and add value to the free primary law on our portal.

Minow: Any last words?

Wilson and Minick: Thanks Mary! We are very excited about this new product, and hope it will provide a lot value to lawyers, law librarians, and others who need to stay on top of legal developments. We are also looking forward to the addition of editorial information to our database of free legal opinions, as a way to help organize and contextualize the material.

Minow: By the way, who are the pugs?

Wilson and Minick: The pugs are our co-workers, Sheba and Belle!  You can see more of there Justia office adventures on their Facebook page.

Rich Stim is corporate counsel for Nolo. Rich is the author of several Nolo intellectual property books including:

Patent, Copyright & Trademark: An Intellectual Property Desk Reference
Patent Pending in 24 Hours
Music Law: How to Run Your Band's Business

Rich also writes two blogs for Nolo, What Price Justice and Nolo's Patent, Copyright & Trademark Blog, and provides information about trade secrets and nondisclosure agreements at NDAs For Free. He lives in San Francisco and has been without cable TV since 2006.

Nolo has published a new edition of the volume Getting Permission, a comprehensive, up-to-the-minute book on securing the use of copyrighted images, text, music and more. Moreover, Nolo has granted permission to the Stanford Copyright & Fair Use to provide free and open access to salient chapters dealing with copyright, fair use, and web-based content. Fair Use's Executive Editor Mary Minow has a brief interview with Rich Stim about the new edition of the book, and what's new in fair use law.

Mary Minow: thanks so much for sharing the rich Nolo content with the Fair Use site. What have been some of the recent changes worth pointing out?

Rich Stim: The mix of recent fair use case hasn't been too surprising. For example, we learned it's not a fair use to create a Harry Potter lexicon or to create a postage stamp from a sculpture. And it's not a fair use/parody to create a sequel to Catcher in the Rye. It is a fair use, however, to reproduce movie monster magazine covers in a book about the cover artist. No surprises with any of these decisions.

The most important fair use ruling may have been Lenz v. Universal Music Corp. In that case, Universal Music issued a takedown notice for a video of a child dancing to the song, 'Let's Go Crazy,' by Prince. The owner of the video claimed that since Universal didn't consider the issue of fair use, Universal could have not had a "good faith belief" they were entitled to a takedown. Faced with this novel issue, a district court agreed that the failure to consider fair use when sending a DMCA notice could give rise to a claim of failing to act in good faith. That may have an effect on the trend towards automated mass DMCA notices. Let's hope so.

Minow: What's your assessment of these changes with regards to the big picture of copyright law, especially as it affects the higher education community?

Stim: I'm not sure much has happened recently will affect the higher education community. It's all been business as usual although we'll see what happens as a result of this recent ruling regarding the Google book archive. That may have a profound effect on the ability to access orphaned works.

There was a recent case that may, by analogy, effect the ability to claim fair use when copying electronic texts. In Capitol Records Inc. v. Alaujan, a defendant in a music file sharing case was prohibited from claiming fair use because he had failed to provide evidence that his copying of music files involved any transformative use. The court held that "In the end, fair use is not a referendum on fairness in the abstract ..." In other words, making a copy of a digital file and using that file for the purpose for which it was intended (in the case of purloined MP3s, that means copying it to listen to) can not be a fair use. To some people that may seem to chip away at the underpinnings of the Betamax case in which time-shifting of television shows for the purpose of later viewing was permitted as a fair use.

The 2010 DVD Exemption to the DMCA: An Interview with Abigail De Kosnik, Gary Handman and Mark Kaiser of University of California, Berkeley

(1)  Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

(i) Educational uses by college and university professors and by college and university film and media studies students;

(ii) Documentary filmmaking;

(iii) Noncommercial videos

An Insider's View of the WIPO: Interview with Janice T. Pilch, Associate Professor of Library Administration and Humanities Librarian at the University of Illinois at Urbana-Champaign

An international copyright advocate for the Library Copyright Alliance, which consists of the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries, Janice has represented the interests of U.S. libraries and the public at copyright-related meetings of the World Intellectual Property Organization (WIPO) and other international fora for the past three years. As an advocate, she develops position statements to advance fair and equitable access to information, contributing to LCA's strategic effort to influence legislation and public policy governing use of copyrighted materials.

In 2009-2010 Janice also served as Visiting Program Officer on International Copyright for the Association of Research Libraries, responsible for research and policy formulation on international copyright issues relating to libraries.

At the ALA Annual Conference in June 2010 in Washington, Janice was a member of a panel co-sponsored by ACRL and the ALA Office for Information Technology Policy on "Why WIPO? Why International Copyright Matters." We thought we would invite her to share some of her insights on the important work being done by the Library Copyright Alliance at WIPO in the global IP debate.

Mary Minow: How did you find yourself before WIPO in June, representing library, and by extension, the public's interests?

Janice Pilch: When the Library Copyright Alliance launched its international copyright advocacy program in October 2007, it gained accreditation as an NGO with observer status at WIPO. We set out to cover the work of three key WIPO committees: the Standing Committee on Copyright and Related Rights (SCCR), the Committee on Development and Intellectual Property (CDIP), and the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), as well as the WIPO General Assembly.

Minow: By the time copyright expires in a book, the book is often forgotten.  The University of Michigan , however, just inked a deal with Amazon to bring some 400,000 old titles back to life.  How does the library determine that a book is out of copyright?

Bonn:  First, we are really excited about this special opportunity to extend access to our collections and to connect our users with the information that they need. Since 2004, we have had about 10,000 19th and early 20th century books in reprint, and we know that they are widely appreciated. While our digitization efforts are intended to create greater online access, it's a happy by-product that it also enables greater print access.

But to answer your question about copyright: On determining copyright status:  right now we are being fairly conservative in our copyright judgments. Keep in mind that these volumes are only for sale in the United States, so we are guided by U.S. copyright law. We run an automated analysis on the MARC records to identify all volumes published prior to 1923 and most U.S. government publications. After this analysis, he bibliographic information is sorted by publication date and undergoes a quick manual review to check for obvious errors or bibliographic oddities (such as a record for a book that asserted it had been published in 1099). These volumes are removed from the POD (Print On Demand) stream. There is a wealth of material that is relatively easy for us to identify as public domain, and these are the books that we are currently working on getting out into the world. There are many other books that are probably also public domain but we'll need to do a more nuanced analysis in order to make that determination.

If we extend our arrangements with POD printers and distributors to allow for sale of books in other countries (we already have that option for the U.K and Germany, but have not acted on it), we will need to construct a similar process of analysis taking into account the copyright laws of the countries in which we are selling the books.

We are also in the midst of an effort funded by the Institute for Museum and Library Services (IMLS) to develop an efficient way to check the copyright renewal records for books published between 1923 and 1963.  As we identify books that have risen into the public domain, we will add them to our reprint program.

Minow: Readers can purchase the reprints directly from University of Michigan or from Amazon.  How does the revenue sharing model compare with the proposed Books Rights Registry that would be created if the Google settlement goes through? Does UM make a profit?

Bonn: I don't know enough of the details of the settlement to say exactly how it compares. It is different in that the settlement is intended to address in-copyright works and we are only selling public domain materials.  

This arrangement with Amazon is essentially an efficient and effective way of doing large-scale fulfillment. After all of our costs of producing the books are recovered, we will split what we anticipate to be modest profits with Google.  Our share of these profits will be used to support the activities of the University Library, especially our digitization efforts. We hope to make a little money along the way, but the relationship with Amazon is mainly about having a quick way to get print copies into the hands of people who want them.

I should remind everybody that all of these works are currently online for free in HathiTrust (http://www.hathitrrust.org). We already create reprints of these books on our Espresso Book Machine (http://lib.umich.edu/ebm), but this arrangement allows us to do fulfillment on a much greater scale.  

It is really rewarding seeing the way in which people connect with our books. About 26,000 titles actually became available on Amazon this week, and we see people buying copies of The Adventures of Mabel (a turn of the century children's book), 19th century editions of Shakespeare, a guide to walking by Henry David Thoreau and Swedenborg's ruminations on Heaven and Its Wonders. We can only speculate on why and how these books find their readers, but as you might suspect from librarians, we're very happy to be facilitating that connection.

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Maria Bonn is the Director of the University of Michigan's Scholarly Publishing Office.  She is responsible for the production of electronic books and journals and for broadly developing the role of the Library in scholarly communication.

Mary Minow is the content editor for the Stanford Copyright and Fair Use website.

 

Minow:  What prompted you to create the Fair Use Evaluator?

Brewer:  After creating the Digital Slider (on public domain & copyright terms) and the 108 Spinner (covering section 108 - the library and archive exception), it seemed like we were ready to take on creating a tool that could help people to learn more about fair use and become more comfortable making fair use evaluations. One of the primary drivers in creating this tool was to create something that not only would help individuals (or institutions) to make fair use evaluations, but which would also collect and publish for the user the information they provided in support of that use.  Because Section 504(c)(2) may provides significant protections for those users who can show they had every  reason to believe their use was fair, we felt this functionality could potentially be really useful, both to protect those who make good faith evaluations, as well as to reduce the level of fear many have asserting fair use as an exception.

Minow:  How does it work?

Brewer: The tool provides the user with two options: to learn about fair use, or to make a fair use evaluation.  Explanatory notes and other information are available as pop-ups throughout. The "educational" section describes the law and provides some of the criteria or circumstances that could be understood as supporting or opposing each of the four fair use factors - Purpose, Nature, Amount and Effect.  This is followed by a clear statement of why taking a reductive "checklist" approach to fair use (simply counting up how many criteria favor rather than oppose a fair use, or how many factors favor rather than oppose) is overly simplistic, and should not be considered determinative of the fairness of a use.  This is then balanced by detailing the 504(c)(2) protections that are given users under certain circumstances if they document their uses and make informed fair use evaluations.

The "evaluation" section offers the user the opportunity to provide detailed information about their use and how it relates to each of the four fair use factors.  If they choose, they can use the tool to pull in relevant criteria, provided in the educational section for each of the factors, and then modify those criteria as appropriate to describe their own use.  Upon completing their evaluation, the user is asked to select whether or not they've found the use to be a fair one, or if they're undecided. They can then choose to have the tool create a time-stamped PDF of their evaluation, which they can save to their computer hard drive; print, sign and keep for their records, or share with a colleague or copyright specialist for feedback.

This and the other tools we've created (including those mentioned above, as well as the Exceptions for Instructor eTool) are available for institutions to modify (adding their own local copyright information and links; next steps, or other information for users, etc.) under a Creative Commons license.  Of course they're also free to just link to them and use them as is. Our Google Analytics statistics show that these tools get pretty heavy use and are also having the unexpected (and welcome) consequence of steering more people to the Copyright Advisory Network, where they can get help with specific copyright questions from a cadre of specialists. 

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Michael Brewer is Team Leader for Undergraduate Services, University of Arizona Library and a member of the American Library Association Office for Information Technology Policy Copyright Advisory Subcommittee

Mary Minow is Content Editor for the Stanford Copyright & Fair Use site, which links to the Fair Use Evaluator in its Charts and Tools page

Minow: Disability rights groups are protesting the Amazon decision to allow publishers to opt-out of the text-to-speech function for their copyrighted books.  Yet the feature remains for works that haven't been opted out.  Must users be disabled in order to legally use the feature?
 
Von Lohmann: No, copyright leaves us all free to use our digital devices to "read aloud" to us. Despite the misleading statements of the Author's Guild, you don't violate copyright law when you have your Kindle "read aloud"  to you.  Copyright law gives copyright owners certain limited rights, including the right to make copies, perform a work publicly (like showing a movie in a theater), or make a derivative work (like writing a screenplay from a novel).

When you have a Kindle (or your laptop) "read a book aloud," you are not "publicly performing" it -- if anything, it's a *private* performance. And no additional "copy" of the work is being made (except perhaps in the computer's memory, and recent cases suggest that those kinds of transitory digital copies don't count for copyright purposes). Finally, simply reading the work aloud does not create a "derivative work" -- courts generally require that a derivative work contain original, copyrightable expression, something that should require more than simply reading the text aloud.

So I don't think there is anything about your right to have a computer "read aloud" to you that depends on whether or not you are disabled. 

In my view, there is just no copyright infringement going on here in the first place.

Minow: What defines a public performance?

Von Lohmann: Where we're talking about a performance in a real place (as opposed to a transmission), the statute defines "public performance" this way:  "to perform or display [a copyrighted work] at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered."

I don't imagine many Kindles will be used to "read aloud" to an auditorium, so this shouldn't apply to most Kindle users.

The real problem here is that Amazon needs a license in order to make digital copies of books and to transmit them to your Kindle. So the copyright owners can simply force Amazon to limit the "read aloud" feature as part of their license agreements with Amazon. In light of this, it's not surprising that Amazon has decided to let the copyright owner decide whether "read aloud" will be enabled for any particular title.

It's worth noting that device makers that are not also in the business of disseminating digital copies would not be as vulnerable to pressure from the book publishers -- and that's why I imagine that the future of "read aloud" functionality for the disabled and non-disabled like will be on laptops and e-book readers other than Kindle.

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Fred von Lohmann is a senior staff attorney with the Electronic Frontier Foundation, specializing in intellectual property matters. In that role, he has represented programmers, technology innovators, and individuals in a variety of copyright and trademark litigation, including MGM v.Grokster, decided by the Supreme Court in 2005. Fred has an A.B. from Stanford University and a J.D. from Stanford Law School.

For background, see Jonathan Pink interviews: District Court Invalidates Portion of Copyright Act as Unconstitutional; Holds State University and Employee Immune From Claim for Copyright Infringement (April 15, 2008) and Follow up questions on state university copyright immunity case - Marketing Information Masters v. Trustees of the California State University (April 23, 2008)

Minow: Can you tell us about the settlement in the Marketing Information Masters case?

Pink:  Sure. The parties ultimately settled for $15K.  The settlement was negotiated by my former partner because I moved firms just after filing the final motion that led to the court knocking out nearly everything that remained after we invalidated Section 511 of the Copyright Act.  I had given the school a really low rate at my old firm, and unfortunately I could not keep them at that rate after the move, so I had to hand the case off.  Nonetheless, I teed it up for settlement before I left by obtaining the court-ordered dismissal of nearly every claim, and by limiting plaintiff's possible win to about $5,000.  Even though the final settlement was 3X that number, and I think the school over paid, my client wanted to be done with the law suit and what they paid in settlement they saved in fees. Overall, still a good result.

Minow: Why such a low settlement?

Pink: Ultimately, the reason the settlement was so low all tracks back to the ruling you first wrote about, and then a follow up motion we filed that knocked out still more claims.  That is, first we invalidated the plaintiff's right to sue a state university for copyright infringement and assorted other claims, then we drastically whittled down the claims this plaintiff asserted against Professor Rauch .  After that, the facts in this case simply did not support big damages.  We were able to show that plaintiff never made more than $15,000 when it previously sold its report to the school, and it didn't lose the sale of report at issue because the plaintiff had refused to prepare that report for the school unless they were paid a lot more money.  Bottom line was that I thought we could have shown almost no damages, so we made a statutory offer of about $5000.  When the plaintiff failed to accept that offer, he was stuck because, unless he was able win more than that at trial, he would have ended up paying our attorneys fees.  It was a gamble, but I thought we were holding the better hand.  Although I wasn't involved in the final settlement talks because I moved firms, I understand that these tactics - and my former partner's negotiating skills - allowed the client to close the case for nearly nothing.

Minow: Now here's the key question. Can individual professors be held liable for copyright infringement even when they follow university copyright policies?

Pink:  That is the key question, but because this case never went to trial, we can't answer it with certainty.  The qualified answer is probably not, but it will be a question of fact as to whether the professor followed the university's copyright policies.  In this case, the facts giving rise to the claim for infringement arose out of the conduct of an intern who was a visiting foreign student.  The professor never knew that the student had copied text, and moreover, went of his way to correct that once it was brought to his attention.  Of course, there is an argument that he should have known by more closely supervising the work.  So did he follow the copyright policy of the university sufficiently to avoid liability?   We don't know.  But it was worth $15K not to put that question to the test.

===========

Jonathan Pink is a member of the Intellectual Property Group at Bryan Cave , LLP.  His practice focuses on high stakes copyright, trademark, trade secret and patent litigation.  He can be reached at jonathan.pink@bryancave.com

The Stanford Copyright & Fair Use page just added a new tool to its Charts and Tools page, the "Section 108 Spinner."

Minow: Tell us about the new Section 108 spinner. How does it work and what is its purpose?

Brewer: The "Section 108 Spinner" was actually the first tool we created, but because at that time the Section 108 study group had still not released their findings, we held off on releasing this tool and instead developed and released the "Digital Copyright Slider" first.  Once it seemed clear that Section 108 was not going to change any time soon, we decided to go ahead and release the Spinner. The Spinner is focused more on educating and serving the needs of librarians, library staff and archivists.  Basically it is there to help them determine when a reproduction of a copyrighted work would be covered by Section 108, the Library and Archives exemption in US Copyright Law.  We are focused on promoting the online tool, but we do have some copies of the print tool that we're handing out at conferences or other events.  If we hear from people that having access to the print tool would be valuable for their institutions (for their staff in ILL, Special Collections, Collection Management, Public Services, etc.), we might consider making the print tool more broadly available as well.

Minow: Do you have anything else up your sleeve?

Brewer: We've got two more tools in development.  One is a "Fair Use Evaluator" which will guide users through the process of making fair use evaluations.  The tool collects the evidence and reasoning behind the justification provided by the user, and then provides this information back to them in a nicely formatted, time stamped PDF file for their records.  Because Section 504(c) of the US Copyright Code affords some legal protection from statutory damages for those who can show that they made a good faith evaluation of their use and had reasonable grounds for believing it was fair, we feel this feature could be especially valuable.  The second is an Educational Exemptions tool that will help instructors determine whether or not their use of a copyrighted work falls under Section 110 and 110(2) [the "face to face" teaching exemption and the TEACH Act], which allow for educational uses of copyrighted works without the permission of the copyright holder under certain circumstances. We've found that there is a lot of confusion out there concerning this portion of the law, so we thought an easy to use online tool might help. This tool can also collect and publish, in PDF format, the circumstances of the use provided by the user.  We hope to have these two tools out by ALA Annual in July.

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Michael Brewer is Team Leader for Undergraduate Services, University of Arizona Library and a member of the American Library Association Office for Information Technology Policy Copyright Advisory Subcommittee

Here's a quick interview with Kenneth Crews, who prepared the World Intellectual Property Organization's Study on Copyright Limitations and Exceptions for Libraries and Archives for its Seventeenth Session in Geneva, November 3 to 7, 2008.

Minow:  What sparked your interest in studying library exceptions to copyright law around the world?

Crews: I was invited by the World Intellectual Property Organization to undertake this study.  I had the pleasure of sharing a program in the United Arab Emirates with an official from WIPO, and she put in the recommendation that I do the project.  I had long been interested in the issues.  They are central to much of my work for libraries and universities, and I have written about the U.S. library provision in some of my publications.  The chance to do a major worldwide study was an invitation I was quick to accept.

Minow: How do the United States exceptions for libraries compare to other countries?

Crews: The U.S. statute on library issues is Section 108 of the U.S. Copyright Act.  Like the statutes from most countries, it focuses on the terms and conditions under which a library may make copies of a work for a user's private study, and copies for preservation or replacement of lost or damaged works in the library collections.  Those issues are the most common topics of the statutes from all parts of the world.  The U.S. law also includes a provision on copies for interlibrary loans, and not many countries have addressed that issue.

On the other hand, the U.S. law is distinctive in many ways.  On the issue of preservation and replacement, for example, the law allows up to three copies, and it explicitly permits digital reproductions.  Some countries explicitly permit digital technologies, other countries do not mention specific format, leaving the matter open to debate.  Yet other countries clearly limit library copying to reprographic copies that are not digital.  Interestingly, two other countries have modeled their statute on the U.S. language of Section 108: Liberia and South Africa.  However, both of those countries used the form of the statute as we enacted it in 1978.  The U.S. added the language about digital copying in 1998, but neither of the other countries adopted that change.

Minow:  Did you find any surprises when you were conducting your study?

Crews:  I think I was surprised at nearly every point in the study.  The most interesting finding has been the trends in statutory language.  The U.S. language influenced only two other countries.  By contrast, the United Kingdom has a relatively elaborate statute, and one can see the influence of that model in the shape of the laws in many former U.K. colonies, such as Australia, New Zealand, Singapore, and elsewhere.  In fact, the U.S., being also a former colony, vaguely follows the U.K. model.

I could see other trends.  For example, the European Union issued a directive in 2001 that mentioned library exceptions, and as a result, most EU countries have addressed the issues in a similar manner.  I could also see a pattern of countries in Africa that have adopted a simple and terse library statute that is flexible and generally free of the detail embodied in the U.S. or U.K. examples.  Finally, I found geographical groupings of countries that have no library copyright statute at all.  Clearly, countries seem to be learning from one another, often from their neighbors, when they make decisions about the exact shape of copyright law.

Minow: Thanks for talking with us today.

Kenneth Crews is Director of the Copyright Advisory Office, Columbia University.
Mary Minow is the content editor for the Stanford Copyright and Fair Use website.