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Minow:What recommendations by the Section 108 Study Group would really help libraries, museums and archives if adopted into law?
Hirtle: Most of the recommendations from the group could help libraries, archives, and museums, but four stand out to me.
First, the report argues that at least some museums should be included in the section.That is not currently the case.
Second, the report proposes that there be a broad preservation exemption for published materials.It is possible that having explicit permission to preserve in Section 108 might reassure some libraries that are reluctant to preserve under the more ambiguous provisions of fair use.
Third, the provisions that grant libraries, archives, and museums explicit permission to do some of the things that the Internet Archive does under the umbrella of fair use may also be helpful.
Lastly, the recommendations address many of the absurdities in the current law.Here are two examples:
*Under current law, if a library made a replacement copy of an audio CD, it would no longer be able to loan that CD to its patrons (because digital replacement copies are restricted to the premises of the library – and audio CDs are digital).
*Certain preservation and replacement provisions limit the library to making three copies.This makes sense when you are talking about microfilm, but doesn’t make much sense when you are dealing with digital copies.
Minow: Anything that could hurt libraries, museums and archives?
Hirtle: There is always the danger that providing explicit permission for certain actions could imply that other actions outside the scope allowed in the section are suspect.Section 108 should never be a ceiling on what is acceptable except in those cases where it goes beyond what other sections, such as fair use, would allow.
The biggest threat will occur when 108 is opened for legislative amendment.The Study Group received proposals from many interest groups that would be very problematic for libraries, archives, and museums.I am thinking in particular of the suggestions that international ILL be banned and that libraries would need to determine if an article was available for sale from the publisher prior to making an ILL request.Most libraries would welcome the opportunity to purchase copies of articles from publishers rather than having to go through the ILL system if the cost was roughly comparable, but few I suspect would like to have it as a legal requirement.While these recommendations were not included in the final report, interest groups that know how to work the system may try to add them to 108 during the legislative process.
Minow:Tell us about the process the Committee went through. Was there screaming?
Hirtle: No screaming, though there were often strong differences of opinions.I was particularly impressed by the participation of the rights holders.It would have been very easy for them to have turned their back on the whole process and not consider at all any expansion of actions that could be interpreted as infringing on the exclusive rights of the copyright owner.They, however, recognized that the preservation and the maintenance of the historical record are very important and worked hard to try to identify those areas where libraries, archives, and museums could take action in a manner that would not hurt their interests.The future markets for digital delivery are so uncertain, however, that it was difficult to reach agreement on broad terms – there was an understandable fear of possible unintended consequences of any change to copyright law.
In the end, the 108 process for me confirmed Jessica Litman’s conclusions from her study of previous copyright revisions.Negotiated agreements among current stakeholders, she noted, while producing legislation that can be implemented, are unlikely to produce statutes that are flexible enough that they improve with age.
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Quick conversation with Jonathan Pink, partner at Lewis Brisbois Bisgaard & Smith

Minow: Could you tell us about the new decision about the state university professor who was sued for copyright infringement?

Pink: The case is Marketing Information Masters v. The Trustees of the California State University.[.pdf] For several years prior to the suit, the Pacific Life Holiday Bowl had hired Marketing Information to calculate the fiscal impact the Holiday Bowl (college football game) had on the City of San Diego. When Marketing Information tripled its fee, the Holiday Bowl hired San Diego State University to conduct the 2004 survey, but instructed the school to follow the format of earlier years.

When San Diego State delivered its 2004 report to Pacific Life, Marketing Information obtained a copy and cried foul. Marketing Information alleged that in creating the 2004 report, the school and one of its professors had copied large portions of Marketing Information’s 2003 report.

The Trustees and the professor filed a motion to dismiss, claiming that the Eleventh Amendment provided them with immunity to a claim for copyright infringement. While Marketing Information argued that the Eleventh Amendment did not apply because Congress passed the Copyright Remedy Clarification Act which expressly provided that “[a]ny State, instrumentality of a state… or employee of a State or instrumentality of a State… shall not be immune, under the Eleventh Amendment” to a suit for copyright infringement. 17 U.S.C. section 511(a), the defendants argued that the Clarification Act was an invalid exercise of Congress’s power.

The District Court agreed with the defendants, finding that the Copyright Remedy Clarification Act “was not passed pursuant to a valid exercise of [Congress’s] Fourteenth Amendment enforcement powers,” and “does not constitute a valid abrogation of state sovereign immunity.”

In short, the Court invalidated the Copyright Remedy Clarification Act as unconstitutional, thus ruling that a State, employee of a State (acting within his or her official capacity) or instrumentality of a State cannot be held liable for copyright infringement.

Minow: Do all state employees have immunity for copyright infringement?

Pink: No. The Court’s ruling only applies to state employees acting within their “official capcity.” This gets a little tricky because a state official who has acted in violation of federal law will be stripped of his or her “official” character and will not be immune to suit under the 11th Amendment. Thus, for example, in the Marketing case, plaintiff may not seek damages against the professor in his official capacity as that it would violate the state’s sovereign immunity under the 11th Amendment, but the professor likely would be “stripped of his official or representative character” and would be “subjected in his person to the consequences of his individual conduct” if plaintiff can show that the professor violated plaintiff’s federally protected copyright. In other words, a state employee will be subjected to suit in his or her individual capacity even though he or she had been acting as an agent of the State if it is shown that the employee’s conduct was ultra vires his or her delegated authority, e.g. by violating a federal law.

Note: Justia is sponsoring Marketing Information Masters as a featured case. (Thanks, Nick.) 

UPDATE: Interview Follow-Up with Jonathan Pink HERE

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Jonathan Pink represented the defendants in Marketing Information Masters, Inc. v. The Board of Trustees of the California State University System, et. al. (06cv 1682 JAH, SDCA February 5, 2008). Pink is a partner at Lewis Brisbois Bisgaard & Smith.

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Quick conversation with Erika V. Wayne, Deputy Director of the Stanford Law Library and Lecturer in Law.
Minow: Erika, what are your thoughts as a law librarian about the role of law students in suppressing the use of free legal sources, such as court cases and laws that are clearly in the public domain.
Wayne: Authors of law journal articles, like many authors, rely on the vast array of online resources to write and research their works. Yet the student editors on law school journals typically insist on citing to the hard copy of the commercial sources. This is due to the preferences laid out in the Bluebook.
So silly really — student editors insisting on getting their hands on paper copies of sources that the original authors almost certainly only used in e-form — a fiction. What is so tricky and painful for a lot of law libraries is that we end up purchasing certain sources in hard copy only to support this. Indeed, our own faculty and students, when not wearing their editor-hats, will almost all go to the online versions for their own research.
Minow: Who actually writes the Bluebook that imposes the print sources requirement?
Wayne: It’s the students who create the Bluebook – that is the law journal editors at a few top schools.
Minow: What would be your recommendation to law students, and Bluebook editors in particular?
Wayne: The editors could easily loosen the citation preferences and give equal weight to online sources.
All of this being said: the Bluebook isn’t a court’s citation guide. Lawyers practicing in a given court need to comply with a court’s citation rules. The Bluebook is really just a guide or standard for law journals.
But if we talk about changing the way courts and legislatures open up, accept and provide free legal information — about providing new lower cost alternatives for research — the student editors of the Bluebook could lead the charge and rewrite the fiction of citing to paper sources and help train the next crop of lawyers to look to the newer or free legal resources, by giving them the same authority as the traditional commercial research services.
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The final report of the Section 108 Study Group is available at http://www.section108.gov/.  Among other recommendations, the report endorses an important new exception that would allow libraries to preserve websites under the following conditions (see p. 104 of report):

A new exception should be added to section 108 to permit libraries and archives to capture and reproduce publicly available online content for preservation purposes, and to make those copies accessible to users for purposes of private study, scholarship, or research.

a. “Publicly available” for purposes of this exception is defined as publicly disseminated online content (such as websites) that is not restricted by access controls or any type of registration, password, or other gateway requiring an affirmative act by the user to access the content.

b. Once a library or archives has captured publicly available online content, it should be allowed to provide access to its preservation copies of this content to researchers on the library’s or archives’ premises.

c. Libraries and archives should be permitted to make the captured content available remotely to their users, but only after a specified period of time has elapsed.

2. Opting Out

a. Rights holders should be able to opt out of allowing libraries and archives to capture their publicly available online content, with the exception of government and political websites. The recommendation
to include an opt-out clause is conditioned on the Library of Congress being able to copy and preserve all publicly available online content, regardless of the rights holder’s desire to opt out.

b. Rights holders who do not opt out of capture and preservation of their publicly available online content should be able to separately opt out of allowing libraries and archives to make their content available remotely to users.

3. Libraries and archives should be prohibited from engaging in any activities
that are likely to materially harm the value or operations of the Internet site hosting the online content that is sought to be captured and made available.

4. Libraries and archives should be required to label prominently all copies of captured online content that are made accessible to users, stating that the content is an archived copy for use only for private study, scholarship, and research and providing the date of capture.

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The Fair Use Project of Stanford Law School’s Center for Internet and Society is co-counsel defending independent book publisher RDR’s right to publish The Harry Potter Lexicon, an unofficial reference guide to the Harry Potter series of books and movies.

The Court has put this case on the proverbial fast track by combining the hearing on the preliminary injunction motion filed by Ms. Rowling and Warner Brothers with the trial on the merits. The trial is scheduled to begin on March 24 at 9:30 am.

The trial will be open to the public, and will be conducted before the Honorable Robert P. Patterson in courtroom 24 of the Daniel Patrick Moynihan United States Courthouse, 500 Pearl St., New York, NY 10007.

Warner Bros., which owns the film rights to the Harry Potter books, and Harry Potter author J.K. Rowling filed a lawsuit on October 31, 2007 against Michigan-based RDR Books to block the publication of the lexicon, claiming that it violates copyright and trademark law and infringes on Rowling’s plans to publish her own companion book. RDR Books contends it has the right to publish the encyclopedic reference book under the fair use doctrine, which safeguards the use of copyrighted material so long as it is used transformatively and does not damage the market value of the original work.

“The public has long enjoyed the right to create reference guides that discuss literary works, comment on them, and make them more accessible,” said Anthony Falzone, executive director of the Fair Use Project, who will serve as counsel on the case. “J.K. Rowling and Warner Bros. are threatening that right. We intend to demonstrate that the fair use doctrine protects the Harry Potter Lexicon.”

Joining Falzone as co-counsel is Stanford’s Lawrence Lessig, founder and director of the Center for Internet and Society and the C. Wendell and Edith M. Carlsmith Professor of Law. They join RDR’s lead counsel David S. Hammer, a former federal prosecutor.

More information about the case is available on the CIS website at:
http://cyberlaw.stanford.edu/case/rowling-v-rdr-books

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Lauren Gelman

  • Executive Director
  • Center for Internet and Society
  • Lecturer in Law
  • Stanford Law School
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If you’re following the Harry Potter court case filed by J. K. Rowling and Warner Brothers against an RDR Books’ Harry Potter Lexicon, you may want to look at the new court filings that came in on Friday to the Stanford Copyright & Fair Use site, courtesy of Justia.com.

 

The Stanford Fair Use Project is defending RDR books.

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As we update, revise, retool this site, we’re especially interested in what you, the reader, would like to see. Please send email to fairusecontent@justia.com.

How do you use the site?  Who would you like to see us interview?  Are there more tools we should add?

Thanks.

Mary 

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Jon Silver, technical consultant to the Stanford Copyright & Fair Use page has spiffed up the Charts & Tools page. This is a great page to go to as a first step when you’re trying to puzzle out the copyright status for a particular item you want to use. If you have a suggested chart or tool to add, email us at fairusecontent@justia.com