Pull quote: “From the right, copyright looks an awful lot like government intrusion in the marketplace, and from the left it looks like an impediment to free speech and access to information. So I think we will see people on both sides of the political divide rally around this issue.”
Pull quote: “Overall, the atmosphere for fair use on campus is a lot better today today than it was six months ago. We have seen a pretty convincing victory in the Georgia State e-reserves case, a sweeping one in the HathiTrust case, and a tepid affirmation of fair use (probably!) in this streamed video case. Although the first two of those cases are being appealed (we do not know if AIME will appeal this latest decision), we now know that courts are quite sympathetic to fair use by academic libraries and on college campuses. We know that most of the arguments that content providers have long offered to discourage reliance on fair use have been rejected. We know that no campus has yet been found guilty of infringement when it makes reasonable fair use of lawfully acquired materials for limited teaching purposes.”
Pull quote: “The proposed order is clearly intended to humiliate GSU and to make fair use as difficult as possible for them. It reads to me like a party who actually won very little at the trial still trying to spike the ball in the other parties’ face. I hope the Judge will see it as yet another attempt to overreach the evidence on the part of the publishers.”
Pull quote: “One part of the ruling could be problematic for librarians and others trying to work out fair-use policies in academe. Judge Evans proposed a 10-percent rule to guide decisions about what constitutes fair use in an educational setting. For books without chapters or with fewer than 10 chapters, ‘unpaid copying of no more than 10 percent of the pages in the book is permissible under factor three,’ she wrote in her ruling. For books with 10 or more chapters, ‘permissible fair use’ would be copying up to one chapter or its equivalent.”
Pull quote: “It’s worth noting that of the five infringing uses, four were from SAGE publications, and SAGE is the only one of the three plaintiffs that licensed permissions routinely for all of their books. There is now every incentive for publishers to assume all rights, leaving authors with little but the privilege of being published, and make payments slick and easy. It also provides incentives for institutions to avoid risk by simply paying up if that’s easier than thinking about fair use, simply passing the cost along to students or maybe the library. Can your students afford more expenses? How about your library? And to make things worse, the more money these licenses make, the more weighty the claim that not paying up harms the market.”
Pull quote: “My bottom line on the case is that it’s mostly a win for Georgia State and mostly a loss for the publishers. The big winner is CCC. It gains leverage against universities for coursepack and e-reserve copying with a bright-line rule, and it gains leverage against publishers who will be under much more pressure to participate in its full panoply of licenses.”
Pull quote: “In general I expect librarians to be happy about the outcome of this case. It suggests that suing libraries is an unprofitable adventure, when 95% of the challenged uses were upheld. But there will also be a good deal of hand-wringing about the uncertainties that the Judge has left us with, the places where we need information we cannot reasonably obtain, and the mechanical application of a strict percentage. We will spend considerable time, I think, debating whether and how to implement Judge Evans’ rules into our own copyright policies.”
Pull quote: “The opinion also pulverizes several of the sillier FUD-based restrictions on e-reserves, such as the one-term-only restriction and the horrendous Classroom Guidelines. On balance, monograph publishers are likely safe from Elsevier’s unhappy position, for now. The Loon thinks this a sincere pity—those conniving bastards sued a university! for teaching! they deserve burial in Dante’s Antenora!—but it is what it is.”
Pull quote: “‘They’re wrongfully claiming ownership of open knowledge,’ [Ariel Diaz] said.”
