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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.

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Rich StimRich 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.

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Copyright and controversies over its enforcement by no means limited to the United States. The world’s first copyright legislation was England’s Statute of Anne, enacted in 1710. The Berne Convention for the Protection of Literary and Artistic Works, the first international copyright agreement, was first written in 1886.

And while debates over copyright enforcement, length of protection and the extent of exemptions continue in the U.S., similar efforts and arguments are being made in Canada, the UK and Europe. Our video page has excerpts from the ongoing conversation. One highlight is a speech on copyright from Mathias Klang, a researcher and senior lecturer at the University of Göteborg in Sweden. Most of the latest videos are from a July 2010 conference called ORGCon, conducted by the Open Rights Group, a group devoted to advocating digital rights in the UK.

But for you hardcore Lawrence Lessig fans (and I am one, thank you very much), there’s also a new TED talk from him on copyright, fair use and remix culture mashed up with politics. Brief, but humorous and thought-provoking, as one would expect from Prof. Lessig.

   — Eli Edwards, Content Minion

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No, not according to James Grimmelmann. On our What’s New – Articles page, a new SSRN article appeared from the CPI Antitrust Journal, titled: The Amended Google Books Settlement is Still
Exclusive
New York Law School
(March 2, 2010). Grimmelmann argues that when it comes to “orphan books,” the proposed settlement would only shield Google from copyright challenges, and not its competitors. He imagines competitor “Two-gle” and walks through the paces scanning orphan works. The article is less than five pages, so take a look.

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The Copyright Office issued an interim regulation in the Federal Register Jan 25, giving a qualified exemption to mandatory copyright deposit requirement for online works published in the United States.  The exemption does not apply to online works that are also published in physical form.

The regulation exempts online works, but only unless the Copyright Office issues a demand for deposit.  The Copyright Office will set up categories of works subject to demand, starting with electronic serials i.e.: periodicals; newspapers; annuals; and the journals, proceedings, transactions, etc. of societies.

The regulation sets forth the process for issuing and responding to a demand for deposit, amends the definition of a “complete copy” and establishes new best edition criteria for electronic serials available only online.

It is interesting to read that the Copyright Office only got a handful of comments to its July 15 notice. It appears that commenters got a heavier weight because of this, and several comments are referred to in the Register.

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Take a look at the evolution of U.S. formalities, especially as represented in concise chart form on pages 12-13 in Jane Ginsberg’s “The US Experience with Copyright Formalities: A Love/Hate Relationship”
Columbia Public Law Research Paper No. 10-225, posted for free at SSRN.It is especially useful in detailing deposit requirements, and the effect of recordation of transfers. Also takes a look at alternatives to registration wrt “marking off” ownership rights a la Creative Commons, noting that the DMCA prohibits the removal of such digital ownership markings. Brief look at what copyright examiners focus on, when approving copyright registrations. Overall an informative read. Recommended.

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(posted by Peter Hirtle; cross-posted from http://blog.librarylaw.com)

Earlier this fall I wrote about what I called “the other coursepack case” (in Michigan, as opposed to the Georgia State case).  Partial summary judgment has been granted, and it is a mixed bag for educational fair use.

In
the decision, the judge rejected all of the defenses that the
defendant, Excel Copying, put forward.  First, the court rejected, as I
suspected it would, the argument that the licenses secured by the
University of Michigan library authorized the copying. 

It also
rejected the stronger argument that Excel engaged in no direct
infringing activity itself, since it was the students, and not Excel,
that made the copies.  The court found that because Excel “is the
source of the reproduction,” it had the same liability as if it had
made the reproductions.  Excel gathered the material, collated and
numbered the copies, assisted students who were having trouble copying,
and did everything except actually push the “start” button on the
photocopy machine.  The court therefore concluded that Excel, and not
the students, made the copies.  Furthermore, it found that lending the
master copy of the course pack to the students violated the publishers’
distribution right – even though there is no discussion in the opinion
as to whether the master is itself a legal copy, and hence could be
loaned under the first sale doctrine.

Lastly, the court completely rejected a fair use argument.  It accepted the reasoning of the majority in the Michigan Document Services (MDS) case
that fair use was not applicable.  Because Excel is a commercial
operation, the purpose of the copying was not educational.  As to the
second factor, the court ignored the informational character of the
readings, but said that since they were creative, it ruled against fair
use.  (“The nature of the material is certainly creative, which
militates against a finding of fair use.”)  Of course, to be protected
by copyright, a work must be creative.  If the court’s reasoning were
followed, the second factor must always
weigh against fair use.  The court found that the third factor, the
amount of the use, also weighed against the defendant, since the
professors had selected the excerpts, which means that they must have
substance.  Again, if one accepted this reasoning, it would be hard to
know when an excerpt selected for a class could ever be a fair use. 
Finally, on the fourth factor, the court found that because Excel does
not pay licensing fees when its competitors do, the market for the
copyrighted works is harmed.

I suppose that it should come as no
surprise that in its fair use analysis, the court clung closely to the
decision in MDS.  (It is also telling that the one commentator on MDS
that it cited was Doug Lichtman of UCLA.  While I greatly enjoy his podcasts,
he does seem to believe that if a use can be licensed, there should be
no fair use.  Fair use should only apply in those situations, such as
criticism or parody, when it is unlikely a license could be secured.) 

I
was more surprised by the conclusion that because Excel enabled
students to make copies, it was directly responsible for that copying. 
To the eyes of this non-lawyer, this would seem to be a classic case of
contributory, not direct, infringement. 

It makes me wonder as
well about the potential liability of libraries.  It is common for
libraries to receive from a faculty member a copy of a course pack and
place it on reserve (much as faculty members provided copies of their
course packs to Excel).  If a student then borrowed that course pack
and copied it on a library photocopy machine, would the library be
liable?  Section 108(f)
of the Copyright Act protects libraries from charges of contributory
infringement for copying done by patrons on library equipment, but
could this decision be extended to suggest that libraries, just like
Excel, have direct, not contributory, liability  for infringing copies
made by students?  If so, the “safe harbor” of 108(f) would evaporate. 
The court did
concede that if a student secured a copy of a course pack from a friend
“or other third party,” brought it to a commercial copy shop, and made
the copy, the copy shop may not be liable for copyright infringement. 
Perhaps a library could be “a third party.”

The
potential good news for fair use in the decision rests more in what the
court did not decide.  First, as with the MDS decision, by focusing on
the commercial nature of Excel’s copying, the court left open the
question of the legality of similar copying conducted by a
not-for-profit educational institution.  We will have to wait for a
decision in the Georgia State case to see how that plays out.  Second,
the court acknowledged MDS’s contention that copying by
students is problematic and may not be a fair use, but it chose not to
address that issue as well.

All
in all, this case seems to be one more rejection of the plain language
of the fair use statute, which indicates that multiple copies for
classroom use are not infringements of copyright. 

(Note: Mary Minow also briefly discusses this case.  There is also a very useful discussion that echoes many of the same points I make on the Exclusive Rights blog.  PH)

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Although the students press the “start” button to make a copy of a coursepack, the copyshop is the “source of the reproduction” supplying a master copy of the coursepack, equipment and staff assistance.  This is vastly different, says the court, from a scenario in which a student gets a coursepack from a friend and steps into a copyshop to duplicate.  Short work is made of the Fair Use analysis: 
Purpose is commercial (it’s the copyshop’s purpose, not the student’s)
Nature – creative
Amount – MDS case cited, showing that professors tend to choose qualitatively important material
Market – adverse impact because the copyshop can undercut competing shops that pay royalty fees
Blackwell Publishing v Miller at

http://docs.justia.com/cases/federal/district-courts/michigan/miedce/2:2007cv12731/222190/54/

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