KindleReads from DragonWeb - Issue 4

IN THIS ISSUE of KindleReads from DragonWeb I collected some opinions on the infamous and probably game changing case two university and a professional presses started against Georgia State University. The large issue at hand is of course the legitimity of fair use in the digital age - and money, I should not even mention. The first two articles introduce the subject, contextualize the problems and give some experts' opinion, to be followed by two reactions to the potential, irreversible damage the ruling might cause in higher education in the future.

Table of Contents

- A Failure to Communicate

- What's at Stake in the Georgia State Copyright Case

- Back to the Future

- A Nightmare Scenario for Higher Education

A Failure to Communicate

A Failure to Communicate
In a lawsuit against Georgia State University over e-reserves, scholarly publishing faces a defining moment
By Andrew Richard Albanese
Jun 14, 2010
While the high-profile Google settlement has captured the attention of the publishing industry at large, a contentious copyright infringement lawsuit filed in Atlanta in 2008 by academic publishers against four individuals at Georgia State University has quietly progressed. And while a New York court now considers whether to approve the sweeping Google deal, a court in Atlanta could yet deliver something that publishers expressly chose to avoid in their settlement with Google: a fair use ruling.

The case, known as Cambridge University Press, et al. v. Patton et al., involves a popular practice known as e-reserves, or electronic reserves, on college campuses and the murky contours of copyright and fair use in the digital age. But perhaps the most notable aspect of the suit is that publishers are in essence suing their very partners in the scholarly publishing enterprise (including a university librarian), something critics say represents something of a waterloo for publishing.

Georgia on Their Minds

For those unfamiliar with the practice, e-reserves takes its name from the traditional library "reserve" model, where a professor makes a limited number of physical copies of articles or a book chapter available for students. Those copies were generally subject to permission, and proper reproduction fees were paid to the publishers.

In the digital world, that's all changed. Rather than make multiple physical copies, faculty now scan or download chapters or articles, create a single copy, and place that copy on a server where students can access it (and in some cases print, download, or share). Since the practice relies on fair use (creating a single digital copy, usually from a resource already paid for, for educational purposes), permission generally isn't sought, and thus permission fees aren't paid, making the price right for students strapped by the high cost of tuition and textbooks, as well as for libraries with budgets stretched thinner every year.

Not surprisingly, e-reserves are widely used and are immensely popular. Students and instructors love the convenience, ease of use, and accessibility. They are efficient and fit with the way teachers teach and students learn in the digital age. In addition, e-reserves facilitate innovations, like distance learning and collaboration.

The problem, publishers say, is that e-reserves are unmonitored, and the practice is so varied that the system is routinely abused. In reality, the term e-reserve today represents pretty much any kind of digital course content, whether managed by the library, placed in a course management system (CMS) like Blackboard, or hosted on a personal or faculty Web site. And e-reserves also encompass the full range of course reading, from a fraction of supplemental reading to 100% of assigned works, denying publishers the reproduction fees (or sales) they'd come to rely on.

"It is a significant enough revenue stream for publishers to be concerned about," says Sandy Thatcher, executive editor for social sciences and humanities at Penn State University Press. "The paperback and the permissions markets have eroded over time because of e-reserves and course management systems, and if you can't substitute the lost revenue, you can't publish new books."

Indeed, there has been mounting concern over e-reserve practices since the early 1990s, when publishers predicted that e-reserves could erode revenue from printed coursepacks. In 1994 publishers sought to deal with e-reserves at the Conference on Fair Use (CONFU), but the issue proved so contentious that the participants could not agree on a recommendation for the final report. Since then, the threat of litigation has loomed over a number of universities concerning their e-reserves, as publishers' reproduction revenues dipped.

Allan Adler, AAP's v-p for legal and governmental affairs, has flatly denied that AAP ever threatened litigation against uni-versities over e-reserves, though he acknowledged there is a perception of "arm-twisting" out there. In 2003, AAP lawyers targeted the University of California, San Diego. In 2006, Cornell University and AAP released joint guidelines for electronic content, which Cornell officials say were in fact drafted under an implicit threat of litigation. And in January of 2008, AAP praised new accords with Syracuse, Marquette, and Hofstra universities regarding new guidelines for the use of electronic content, also, reportedly, with the stick of litigation.

These guidelines, or "best practices," have mostly satisfied publishers so far. They generally instruct those who wish to post e-reserves of some basic conditions so they can determine whether their use is fair use. For example, e-reserve readings can make up only a small portion of the total assigned readings for any one course; access is limited to students enrolled in the class; and the readings should be hosted on a secure, password-protected server and not left up from semester to semester.

Adler admits that AAP did set out to "get the attention of these institutions in a serious way" when engaging these universities to adopt e-reserve guidelines. But he insists a lawsuit was never the goal, pointing out that publishers have not been, and would not be, active in litigating copyright issues "like the music, movie, or software industries." AAP's goal, Adler said, was to bring stakeholders to simple consensus: that practices and uses that required permission in print require permission in the electronic realm as well. "We see that as black letter law in the United States," Adler says.

Thatcher, meanwhile, says that Georgia State University was among the universities AAP tried to engage in a discussion about guidelines, but that university officials "rebuffed every attempt."

Show Time

Out of patience, in April 2008, publishers sued four individuals at Georgia State University in their "official capacities." Niko Pfund, publisher of Oxford University Press, one of the named plaintiffs in the case, along with Cambridge University Press and SAGE Publications, said the plaintiffs were reticent to sue, but had little choice. "I consider this a failure of dialogue," Pfund says of the suit. "It's a shame. We've successfully come to agreements with others over the years. But Georgia State just wouldn't talk with us."

The allegations in the complaint offer some sense of just how much material is being accessed through electronic course content systems on college campuses: publishers claim that at Georgia State, more than 6,700 works were "made available through a variety of online systems and outlets" without permission, representing "systematic, widespread, and unauthorized copying and distribution of a vast amount of copyrighted works" for students in more than 600 courses.

On one hand, the lawsuit has certainly served as a shot across the bow of the university library community and faculties who use course management systems, and has prompted many schools to revisit their policies and procedures. But the legal case against Georgia State itself has been a complex, uphill battle for publishers from the start.

For one, as a state institution, Georgia State is immune under "state sovereign immunity," a constitutional doctrine that protects states from prosecution in federal courts—and copyright is federal law. That's why, under a specific legal exception, publishers sued individual defendants at Georgia State—including president Carl Patton, provost Ron Henry, librarian Charlene Hurt (who has since retired)—and also why the case is limited to seeking an injunction to stop Georgia State's e-reserve practices only, no damages.

It is unclear how serious settlement talks have been between the two sides. But Georgia State has fought the case strongly and appears to have put itself in position to defeat the suit. University officials have all but admitted that some of its e-reserves were not password protected in the past, but they attribute that to a vendor glitch, since repaired. And in a remarkable coincidence, just when the suit was filed, Georgia State revised—and greatly tightened—its e-reserve policy. In a court filing, Georgia State attorneys then argued that the new, conservative e-reserve policy rendered any claims about Georgia State's past conduct moot. After all, since only injunctive relief was available to the plaintiffs, why should the defendants have to fight against an injunction that to bar practices no longer in effect?

The court agreed and on June 22, 2009, in a major blow to the publishers' case, issued a protective order, limiting discovery in the case to Georgia State's "ongoing and continuous conduct." In other words, the strongest evidence—the 6,700 infringing copies cited in the complaint—were gone.

To observers, that should have paved the way for a graceful exit via a settlement. After all, both sides could now claim victory. Publishers could claim the suit succeeded in changing the liberal policies governing electronic course content at Georgia State. And Georgia State had avoided an injunction. But the case continues. In March, both sides petitioned the court for summary judgment, and a ruling could come soon. But if summary judgment isn't granted, it could very well be off to trial.

Can't We All Just Get Along?

While publishers hope for an injunction—and perhaps dream about a landmark fair use ruling in their favor—critics of the suit say victory would be hollow, only exacerbating the dysfunction that now pervades scholarly publishing and the business of higher education, especially in such difficult economic times.

"If publishers win an injunction, they would hope to get universities to pay for permissions more often," says Duke University scholarly communication officer Kevin Smith, who has blogged extensively about the case. "But the money simply isn't there. So either our choices for student readings will get narrower, or the money that previously went to collections will go to permissions. Neither of those things are good outcomes for publishing."

Barbara Fister, a librarian at Gustavus Adolphus College in Minnesota and a popular columnist for Library Journal, agrees. "Increasing students' costs by replacing e-reserves with coursepacks, print or electronic, is, frankly, a nonstarter," she wrote in a recent column about the suit. With Congress already keeping an eye on the cost of textbooks and tuition, she notes, a ruling against Georgia State that in turn makes students pay for virtually every assigned reading would be "a politically toxic" outcome. "But it's equally unlikely that cash-strapped institutions would be willing or able to subsidize the costs on behalf of students."

Thatcher, who has also written extensively on the case, says most libraries probably don't have to be so concerned with a judgment against Georgia State because the university's behavior was so "extreme." But he concedes that a judgment could force some institutions to reconsider "how aggressive" they want to be about fair use.

"Clearly, what publishers are aiming at is not allowing universities to call everything fair use and drying up any possible revenue streams from the reproduction of articles and book chapters," he says, adding that the Georgia State suit is a sad example of the "systematic dysfunction" in higher education, where schools will pay for an assistant football coach but not adequately support their libraries, faculty, or their presses, leaving publishers no choice but to fight for their revenue streams. "We're often portrayed as the bad guys, but we're asked to do a job. And yet when we ask for a fee from the rest of the university, we're told ‘no.'"

Out of the Courts

Indeed, to the uninitiated, scholarly publishing is a curious enterprise. Simplified, it works something like this: universities or the government subsidize a professor's research. The professor, who is required to publish frequently for professional advancement, gives his research to a scholarly publisher, usually for little or no money. That publisher, who adds value through editing, peer review, and production, assumes the copyright, packages, and sells the research back to the university at a markup. And those mark-ups have proven significant over time, especially as the digital age has fostered an explosion of new databases and resources.

Even with a large chunk of the sector non-profit, make no mistake: scholarly publishing is big business. In the Scholarly Publishing Roundtable report commissioned by Congress and released in January 2010, the total worldwide revenue from the journal market alone was estimated at more than $8 billion in 2008 (about $3 billion from the U.S. market alone) and employed some 110,000 people worldwide. Indeed, while trade publishing has remained flat in recent years, commercial academic publishing has been able to post significant growth.

That's because on the academic side, the digital revolution is all but over—print has been dethroned (but not banished), and digital rules—although clearly not in peace.

Whatever happens in court in the coming months, observers say the battle over e-reserves and the lawsuit at Georgia State have shown that begging for crumbs at the table of fair use is not a viable way to run a higher education system—not for publishers, who need support to cover their costs, not for faculty, who need to publish for promotion and tenure, not for the public who need a vibrant economy of ideas, and certainly not for students, who simply can't afford the escalating prices of learning materials.

"We need to be looking for new business models, and some of the arguments in the Georgia State case about how adequate the current licensing regime is suggest to me that we haven't found that model yet," Smith told PW. "Right now, the licensing model for permissions is inefficient and expensive, from staff time to hunt down who owns which rights, whether our annual campus license covers the use, whether we have CCC permission, and we often have to make quick decisions. It is an extremely cumbersome process. Yes, we need more clarity about what's fair use and when it applies, but what we really need is a more efficient system."

Curious about how a verdict against Georgia State might play out, Smith recently asked Duke's e-reserves staff to give him random examples of recent permission fees. "For the 2007 book No Caption Needed, we paid $150 for permission to make just 17% of the work available to 12 students. This amounts to over $12 per student to gain access to less than a fifth of a work that sells for $35 retail. For an older work—Dealing with Terrorism: Stick or Carrot?—we paid about $10 per student to make 21% of this $30 book available." These are not extreme examples, Smith insists. In another example, fees exceeded $1,000, more than $25 per student. "As we are asked to pay ever-increasing costs for decreasing value," he observes, "it seems that an unsustainable system is being created."

Coming up with a "more efficient system" for scholarly communication has not been easy. A debate has raged for a decade over the viability of such regimes as peer-reviewed open access publishing, institutional repositories, "self-archiving," and other campus policies that urge faculty to retain their copyrights and harness technology to make scholarship more accessible, open, usable, and reusable by the very people who create it. However, publishers have raised serious questions about the sustainability and wisdom of open access, a system that would shift the costs of publishing to authors through publication fees, while making the scholarship freely accessible to the user. For most publishers, it really doesn't matter who pays, as long as somebody covers the costs of publishing, archiving, and maintaining scholarly communication. But are governments and universities, seemingly in constant budget flux, the best agents to control access to the scholarly record? Without some profit motive, can innovation thrive?

Tough questions loom for scholarly publishing, but observers doubt that a fair use verdict in the Georgia State case will raise anything but more questions about the lack of support for teaching, learning—and publishing—in higher education. "Something is badly broken when university presses sue universities for using their materials," Fister notes. "We need to stop playing a shell game that merely shifts the costs and benefits around. It's not sustainable."

Related Topics and Links:

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What's at Stake in the Georgia State Copyright Case - The Chronicle Review

A closely watched trial in federal court in Atlanta, Cambridge University Press et al. v. Patton et al., is pitting faculty, libraries, and publishers against one another in a case that could clarify the nature of copyright and define the meaning of fair use in the digital age. Under copyright law, the doctrine of fair use allows some reproduction of copyrighted material, with a classroom exemption permitting an unspecified amount to be reproduced for educational purposes.

At issue before the court is the practice of putting class readings on electronic reserve (and, by extension, on faculty Web sites). Cambridge, Oxford University Press, and SAGE Publications, with support from the Association of American Publishers and the Copyright Clearance Center, are suing four administrators at Georgia State University. But the publishers more broadly allege that the university (which, under "state sovereign immunity," cannot be prosecuted in federal court) has enabled its staff and students to claim what amounts to a blanket exemption to copyright law through an overly lenient definition of the classroom exemption. The plaintiffs are asking for an injunction to stop university personnel from making material available on e-reserve without paying licensing fees. A decision is expected in several weeks. The Chronicle asked experts in scholarly communications what the case may mean for the future:

Kevin L. Smith

Director of scholarly communications, Duke University

The stakes in this case ought, in my opinion, to be considered from two slightly different perspectives.

First, from the perspective of teaching faculty, the potential consequences depend very much on the ultimate decision in the case. If Georgia State prevails, and even if it loses and the injunction the judge issues is narrowly tailored to address those places, if any, where it deviates from accepted practice, then little will really change. Most colleges have reasonable fair-use policies and practices, which could easily survive a carefully written judgment against Georgia State. But if the publishers who brought the case succeed in getting something close to the proposed injunction they have requested, there will be catastrophic consequences. Either higher education will get much more expensive, or options for exposing students to diverse materials will become extremely limited.

The other important perspective that the case will probably affect, regardless of the final outcome, is that of the scholarly author. For a great many years, scholars have given the works they produce to academic publishers, without remuneration, in the belief that the scholarly-communication system was mutually beneficial. Authors receive benefits for their work from their universities and participate in a system in which all the financial gain is reaped by publishers, because the authors assume that all parties are working for the advancement of scholarship and education.

As it becomes clear that the three publishers who have initiated the lawsuit in search of higher profits are willing to attack the very heart of the system by which scholars live, academic authors will rightly feel betrayed. The plaintiffs are, after all, asking the judge to fundamentally change the copyright rules for higher education. If the rules in the proposed injunction were widely accepted, fair use in this field of endeavor, supposedly favored, would actually be more restricted than in any other activity. Yet the works at issue in the lawsuit are mostly written by scholars for the use of other scholars and students. If those uses become impossible or exponentially more expensive, which today is the same thing, academic authors will need to reconsider whether they are receiving sufficient benefits for the free labor they contribute to scholarly publishing.

The open digital environment already offers substantial advantages to scholars who are seeking greater reach and impact for their work. As the benefits of traditional publication decline because of some publishers' fearful attack on fair use, the benefits of open access will loom larger. Universities, too, are likely to discover that the status quo is unsustainable and move more quickly to adapt promotion-and-tenure processes to the new reality of direct online publication. So the real impact of the Georgia State lawsuit, regardless of which side prevails, may be to hasten the open-access revolution in scholarship.

Peter J. Givler

Executive director, Association of American University Presses

The basic issue is simple: whether or not an academic institution, Georgia State University, should be permitted to create digital course packs consisting of excerpts from copyrighted works and to make those course packs available to students without permission from or payment to copyright holders.

A few key points to consider about this case:

- Despite the fact that the academic presses involved in the suit are, by university-press standards, large, it is perhaps the smaller university presses that have the most to lose in a world where digital course packs, provided gratis and without compensation to authors or publishers, replace book sales and permissions income. As the director of just such a press points out in the most recent issue of Against the Grain, which offers news about the publishing world, it is not textbooks, per se, on which university presses rely, but rather colleges' adoptions of a relatively few original research monographs that finance the investment and risk inherent in publishing new and unproven books. And it is precisely those works around which much of the Georgia State suit revolves, as it is significant portions of those works that the university appears to be distributing digitally at no charge.

- This case involves a single university that has steadfastly refused to engage in any meaningful way with publishers about their concerns over copyright and digital course packs. It is not symptomatic of a broader conflict between libraries and academic publishers, nor does the remedial action requested by the publishers indicate a desire for a broad clampdown on genuine fair use. It is a case focused on claims of repeated misuse of copyrighted material by one university, Georgia State.

- Whereas course packs in print are typically created by campus copy shops, digital course packs are sensibly the domain of academic libraries. But these libraries shouldn't be asked to bear the costs of these course packs. A course pack serves exactly the same purpose as a textbook, and, similarly, students are its consumers. Libraries might consider whether to charge students for this increasingly important and central service. As custom-textbook publishing grows by leaps and bounds (and what is a course pack—in digital or print form—if not a custom textbook?), and as the mandates of libraries and presses increasingly overlap, perhaps the provision of digital course packs could provide libraries with a valuable and relatively straightforward means of supplementing their increasingly strapped budgets.

Siva Vaidhyanathan

Professor of media studies and law, University of Virginia

Congress in 1976, in a rare bolt of wisdom, specifically exempted "multiple copies for classroom use" from copyright infringement. That's right. Congress did not exempt "portions of copies for classroom use." It did not exempt "one-time, minimal numbers of copies for classroom use." It did not exempt "1,000 words for classroom use." It exempted "multiple copies for classroom use."

Today 1976 seems like ancient times. Oddly, some publishers now want us to use obsolete fair-use guidelines that they drew up then, in coalition with librarians and university representatives, that were never meant to be maximum standards, only suggestions to interpret the law. The guidelines themselves demanded flexibility. And fair use itself is legislated to be flexible, exercised on a case-by-case basis.

The publishers have asked a federal court hearing a major academic copyright case to issue an injunction requiring professors to adhere to those standards as absolute limits. Professors would be allowed to distribute just 1,000 words of a document without payment or permission. Under such an injunction, fair use becomes a joke, the explicit intent of Congress would be rendered irrelevant, and thousands of years of academic practice would be voided. If the publishers prevail, I would fear for my job.

I wouldn't fear that I would lose my job. I would fear that I could not do my job. Soon after such an injunction, my university would issue a memo instructing us how to adhere to the severe restrictions that the court would have put on teaching. Fear that would shoot through university counsels' offices would generate a panic not seen since the Red Scare. Every professor, adjunct, and graduate student would be a potential source of a major lawsuit. Universities would deputize librarians as copyright cops in an effort to monitor and report everything we did in class. We would spend hundreds of hours each September in huge meetings with lawyers, trying to figure out how to comply with the ridiculous and unrealistic limitations that the court would have put, as stipulated in the injunction being requested (1,000 words!), on Georgia State.

Most of us would probably just figure out a way around the restrictions. Instead of using legitimate means of distributing content, like e-reserves, we might just make our own PDF's of chapters and articles and attach them to e-mails to students. Or we might suggest that students, not being employees of the university, could make the copies and accomplish the distribution themselves. In 2005, The Harvard Crimson reported, the cost of Robert Putnam's course packet for Government 90qa, Community in America, was $464.50. If his students did not pool their money and purchase a single copy of the course packet, I would guess, they were not smart enough to get into Harvard in the first place.

Since the previous landmark copyright suit over classroom copying and course packets, Basic Books Inc. v. Kinko's Graphics Corporation, in 1991, copy shops have been required to submit article requests to the new Copyright Clearance Center (set up in 1978 at the suggestion of Congress and, conveniently, a key backer of the publishers' lawsuit against Georgia State). Clearances now take weeks or months, and course packets can cost hundreds of dollars. Once libraries subscribed to electronic-journal articles and we all got copiers and scanners that easily make PDF's, we found no-cost ways to do our jobs. Even if we are too dumb or risk-averse to figure out how to avoid restrictions, our students aren't.

How did this absurd situation arise? It's a familiar story of the steady infiltration of market fundamentalism into academe over the past 30 years.

Almost every act of teaching and research requires copying. Universities were invented to copy. European universities emerged in the 11th century from the network of monasteries that dotted the continent and ringed the Mediterranean. These monasteries had a core mission to preserve knowledge by copying books and manuscripts as many times as possible, ensuring preservation through redundancy.

That tradition lasted well into the late 20th century, at which point universities suddenly became more than vehicles for the creation, preservation, and distribution of knowledge. They became markets.

University presses used to be agents of the university, and were similarly insulated from the illogic of the marketplace. But again, for the past 30 years we have seen presses thrown into a commercial relationship with the very academy they both depend on and exploit. It's a sad situation. But it has roots in the same general economic predicament that has devalued and degraded so much that is public and publicly minded.

David E. Shulenburger

Senior fellow, Association of Public and Land-Grant Universities, and former executive vice chancellor and provost at the University of Kansas

The publishers' lawsuit against Georgia State is part of an undeclared war on academic fair use, and scholars should take note. This stunning money grab should serve as a wake-up call to academics; it shows that our core interest—the widest possible access to information, especially in the classroom—is in direct conflict with the interests of some of the publishers to whom we have entrusted our scholarship. Worse, the publishers claim to speak for our interests when they attack our institutions. It is past time to declare our independence by embracing new models for academic publishing.

In their arguments to the court, the publishers suggest that unless universities divert more and more of their scarce resources to licensing fees, academic writers will stop writing and scholarship will cease to exist. Indeed, by the publishers' reasoning, any use that does not involve a payment to the publishers poses a threat to scholarship. Fair use, it seems, is inherently the enemy of academic authors. That absurd view ignores the real incentives for scholarly writing.

While the copyright system supposes that authors are motivated to write by hope of profit, any academic knows the situation is much more complicated. The rewards for most academic authors, even the pecuniary rewards, come almost entirely from nonroyalty sources: in the form of tenure, prestige, and success on the academic job market, not to mention the gratification of contributing to scholarly discourse. Rare is the academic author who considers likely royalty payments before embarking on a research project.

At the same time, every academic author is a voracious user of scholarly work. The production of one piece of scholarship can require access to hundreds of previous works. Policies that stop the flow of information are much more damaging to scholarship than are policies that encourage access; a few extra dollars in your annual royalty check is scant compensation for living in a world where nearly every act of research or pedagogy involves a tax paid to publishers and their representatives (e.g., the Copyright Clearance Center).

There is another way. Open access allows authors to make their work freely available on the Internet, whether by publishing with open-access journals and publishers or retaining the right to deposit their works in open-access repositories. In the words of the 2001 Budapest Open Access Initiative, an international effort, open-access publishing permits "any users to read, download, copy, distribute, print, search, or link to the full text of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose."

Copyright law gives authors a limited monopoly over access to their works, but it also empowers them to set those works free. The benefits of open access for scholarly users are enormous and self-evident, while the cost to the individual academic is negligible. And by suing Georgia State over well-established fair use, Cambridge University Press, Oxford University Press, and SAGE Publications, with the help of the Copyright Clearance Center, have added a new benefit for scholarly users: the chance to disassociate yourself from aggressive attempts to monetize scholarship.

Kate Douglas Torrey

Director, University of North Carolina Press

The Georgia State University case turns on fundamental principles of copyright law—both its purpose (to promote new ideas by providing authors and publishers a fair return on their labors, in order to assure the public's access to knowledge) and its critically important fair-use exemptions. Copyright law is format-neutral; over the years, it has proven flexible enough to accommodate the arrival of photocopiers, read/write cassette recorders, sampling, and other musical forms. At its core, this case asks whether a course pack delivered electronically differs from one printed on paper.

It is no coincidence that two of the plaintiffs are not-for-profit university presses and the third is an academic publisher, each an important participant in the system of scholarly communication. When the suit was filed, a few librarians asked, "How could they?"—an indication of the underlying strength of the broad, interconnected educational community that we publishers, our library customers, our faculty authors, their students, and our parent institutions all inhabit. We are family. And, however reluctantly, sometimes family members end up on opposite sides in a courtroom.

In this case, since 2003 there is no evidence of Georgia State's ever having made a payment to any publisher, whether for-profit or not-for-profit, for permission to include significant portions of copyrighted material in its electronic-reserve and course-management systems. The university admits it has no budget designated to pay for digital use; further, it says it has no system to recoup costs from students.

It is important to note that Georgia State pays permissions to use copyrighted material in traditional course packs, and that other universities pay for digital use. So what does Georgia State claim is different? The purpose is the same: education. The permissions mechanism is the same: The Copyright Clearance Center, which most universities utilize, has an easy-to-use system. The CCC's fees are reasonable and often the same for print and electronic materials. The only difference is format—educational material delivered online instead of on paper. In essence, Georgia State claims that this difference constitutes fair use.

For years the university has asserted that interpretation, expanding fair use beyond recognition, and has ignored copyright principles, by appropriating the digital use of thousands and thousands of pages of copyrighted material. But fair use, an essential component of copyright law, provides limited, enumerated exceptions to the rights of copyright owners, not an avenue for wholesale avoidance of the law. In fact, both the exercise of fair use and the counterbalancing requirement to secure and pay permissions are cornerstones of scholarly communication, and both are vigorously supported by university presses.

Because no reasonable person could expect a spontaneous reversal of the university's practice, the question is, "How could publishers not take action against such a deeply embedded policy?" As faculty, students, libraries, universities, and university-press publishers embrace an increasingly digital educational environment, the Georgia State case—and that university's misguided attempt to subvert copyright fundamentals—puts much at risk. Nothing less than the interdependent educational ecosystem, in which widespread access for students is made possible by appropriate compensation for authors and publishers, hangs in the balance.

Dorothea Salo

Research-services librarian, University of Wisconsin at Madison

The eternal academic-librarian plaint is that faculty never question the time and money behind what librarians provide them to read and assign to their classes. For faculty, it's magic. They look for material, and lo!—it's there. They want something on e-reserve, and lo!—it turns up in courseware. They want journals, regardless of price, and lo!—those often appear (less often these days, to be sure).

Libraries have been papering over serious cracks in the economic foundations of scholarly publishing for more than a quarter-century. The cracks widen daily, as outrageous price-gouging by for-profit, multinational serials publishers (and the scholarly societies that sold out to them) force monograph publishers to fight over the last meager crumbs of library budgets. Yet save for a few indefatigable reformers, faculty have not felt enough pain and fear to question the system, nor enough outrage to force it to change. Nor are librarians blameless; by and large, we have shifted some money and asked for more to paper over more cracks. We know we cannot shift the system without a faculty alliance, and many of us remain unsure we want it to change; we, too, are accustomed to it.

What is at stake in the Georgia State lawsuit is the status quo in scholarly publishing, a status quo dependent largely on faculty's not knowing or caring about its flaws. Should a ruling come down that adds so much complication, cost, or risk to provisions about electronic reserves that institutions and their libraries no longer feel safe offering them, faculty and librarians will unite at last in shared outrage on the far shore of the Rubicon. The results of such outrage are unpredictable and may not be benign: What the Gustavus Adolphus College librarian Barbara Fister has called "liberation bibliography"—broad, unfettered access to scholarly material—would be a blessed outcome; the blind, furious dismantling of publishers with centuries of expertise, not so.

Even a ruling favorable to e-reserves may threaten another practice common among faculty members: posting their own articles to personal or professional Web sites after they have transferred copyright to publishers. I am unsure whether this complaint from the original filing is still under consideration by the court, and press coverage has been silent about it. Should the court rule this practice to be not fair use, faculty pain and fear will probably not reach the level of outrage that the destruction of e-reserves would cause, but it might well lead faculty to question or even change their opinions and behaviors and to help themselves and everyone else find, read, and share the scholarly works they produce.

The plaintiffs want to win the Georgia State case, but in my opinion they should deeply fear a backlash should the judge forbid knowledge-sharing that faculty and students believe is their due. "When I teach, it feels utterly natural to post articles etc. online for the students," tweeted Amanda French, a digital-humanities scholar, last week. Thwarting that feeling is a dangerous gambit indeed.

Brandon Butler

Director of public-policy initiatives, Association of Research Libraries

What's at stake is diminished returns to publishers and diminished access for libraries and students, because this ill-conceived litigation serves no one. It should have, and could have, been avoided.

Professors placing excerpts from library materials on reserve is a well-established practice at university libraries. It has no effect on the legitimate market for academic publications. Professors and publishers may quibble over how big a particular excerpt should be, but in no case will e-reserves become a profit center for publishers. Indeed, faculty and librarians at Georgia State have made clear that if putting material on e-reserve involved additional fees, they would largely abandon the practice. This lawsuit is a losing proposition for everyone involved: Publishers stand to gain nothing except huge legal bills (even with 50-percent financing from the Copyright Clearance Center) and resentment, while the relief they seek would deprive Georgia State of important fair-use rights.

How did this happen?

It's actually a common problem. Communities of practice that rely on the fair use of copyrighted work, from documentary filmmakers to video mash-up artists, have been encouraged for years to take an attitude of fear, uncertainty, and doubt about the extent of their rights, either by a few overzealous rights holders or by the overly risk-averse in their own ranks. Fair use, they are told, is a narrow exception, merely a defense, an arcane and confusing concept best left to lawyers and so on. Those misconceptions lead to community practice that is timid, inconsistent, and often self-defeating, despite friendly court decisions and widely held intuitions about fairness.

Rights holders are affected, too. The inconsistency and timidity of current practice makes it difficult for them to distinguish legitimate market opportunities from boondoggles like the current lawsuit against Georgia State. Many libraries rely on fair use to operate robust e-reserve systems. A clear, unified, formal statement from the academic and research-library communities, grounded in a shared understanding of both the opportunities and the limitations of fair use, could have saved the publishers a lot of time and money by showing them what their customers see as the legitimate boundaries of their market.

For over a year, I've been working with Patricia Aufderheide and Peter Jaszi, both on the faculty at American University, to formulate a code of best practices in fair use by scholars and research libraries. It has been a fascinating and painstaking process, but we have reason for optimism. Documentary filmmakers were the first success story. Before filmmakers issued their code of best practices, they labored under paralyzing uncertainty about basic issues like whether to pay license fees for short clips of copyrighted films used for criticism and commentary. That left key players unduly nervous. Insurers, who must underwrite any commercial film against the possibility of lawsuit, were especially hesitant or unwilling to insure fair uses. After the documentarians formulated their code, insurers felt comfortable underwriting films with unlicensed fair uses in them, and no longer charged extra for the perceived risk.

Rigid, outdated "guidelines" imposed by acrimonious lawsuits are no way to make fair-use policy. Instead, a clear, deliberate, and flexible statement from the key practice community—libraries—can guide users and rights holders alike toward better outcomes.

Source URL: http://chronicle.com/article/Whats-at-Stake-in-the-Georgia/127718/
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Back To The Future (©ollectanea)

Readers of this blog are no doubt aware, to some degree, about the 2008 lawsuit by publishers, including non-profit university presses, against officials of Georgia State University (GSU) alleging massive copyright infringement occurring in GSU's electronic reserves service as well as in online courses hosted through GSU's course management system. Plaintiffs' complaint goes to the very core services - e-reserves and online teaching- that form the basis of most university teaching activities, demanding that permission fees should be paid for copyrighted materials used in excess of fair use. The examples listed in plaintiffs' initial complaint as exceeding fair use for electronic reserves ranged from 9.9% to 26.4% of works being posted without permission.

Although the suit has been percolating along for years, it exploded onto our internet radar last week, during its first weeks of trial, when the publisher plaintiffs filed a proposed injunction requesting the judge to require seeking permission and paying permission fees for each and every use of copyrighted material at GSU that exceeds the very stringent, out-of-date, and essentially obsolete amounts contained in the "Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals",contained in the legislative history of the 1976 Copyright Act. That's right. Books, classrooms, 1970s, and not actually the law -even in 1976.

Not only would this injunction require all faculty, all librarians, all students, basically EVERYONE at GSU to seek permission for pretty much everything they use, it also asks the judge to order GSU to police all uses and certify adherence to the injunction, give everyone on campus a copy of the injunction, ensure compliance with the restrictions, change policies, educate, designate an individual responsible for compliance, and allow plaintiffs access to the university's computer systems every semester so the publishers can verify what is actually being used. The President of GSU would have 45 days to submit a report outlining the steps taken to implement the injunction requirements and to certify compliance. After that, such report and certification would fall to the Provost for the next 3 years. The report must include a list of every item on e-reserves, the course-reserve page where the materials are listed and the number of "hits" for each item during the semester.

I'm not making this stuff up - really.

Because this lawsuit will likely be a landmark case for higher education, it warrants some discussion and observations, which I will divide into:
•Why did the publishers choose this university and this fact pattern?
• Is the injunction even legal?
• Was the injunction a smart move? What does it tell us about the publisher-plaintiffs?
-Reality check
-Time travel
-In the land of make-believe
• FINALLY, THANKS FOR THE HELP!!!

• WHY CHOOSE A STATE INSTITUTION, SPECIFICALLY, WHY GSU?
To be sure, it was inevitable that e-reserves and online course use of copyrighted material would eventually provoke a lawsuit. Indeed, numerous universities had received complaints about their e-reserve practices that generally included a letter and a sample legal complaint, showing the publisher's willingness and readiness to sue should the university not mend its ways. Some universities changed their written policies, notably Cornell. However, after clamping down on e-reserves, a Cornell employee noted that e-reserve use dropped something like 70%, with the professors simply moving the desired materials directly into their online course.

E-reserves was the obvious choice for litigation, with the hope that a favorable decision there could scope creep over into online course practices. Why? Because two lawsuits, in the 1990s (the evening of the paper dominated world and the dawn of the digital internet era), Kinko's and the Michigan Document Services (MDS), had 'established' that use of articles and excerpts in print course packs required permission, and, invariably, permission fees, with the cost passed on to the student. Even then, however, the later suit (MDS) addressing fair use, reversed twice, with the publishers finally prevailing in a 5/4 vote. Hardly a settled matter even among copyright experts.

These cases were enough to support challenging e-reserves (and by association, online courses) as representing a vulnerable practice, if done without payment of permission fees. Surely, the publishers thought, a judge could see that e-reserves are merely the digital version of coursepacks. The only legal rationale supporting the use of portions of copyrighted materials in e-reserves, without permissions, is Section 107, Fair Use, a powerful and critical doctrine that allows a balance of competing interests, and, without which copyright could not achieve its purpose of promoting science and the useful arts. The e-reserves battleground is clearly over the existence and interpretation of fair use.

That explains the attack on e-reserves, but why would anyone choose Georgia State University, a public institution that enjoys immunity from copyright infringement lawsuits based on the 11th Amendment sovereign immunity doctrine? One can't sue the university itself, money damages are not available, leaving only university officials, in their capacity, as the defendants and injunctions as the relief. [the named defendants were the President, the Provost, the Library Director and the IT head] Some publishers assert that GSU's activities were uniquely excessive. Are they? Maybe not today,

Do you think that a group advocating such a proposed remedy, especially in the current economic climate, has their finger on the pulse of e-reserve practices? One can't help but wonder whether this injunctive lawsuit might have been targeting a certain widely read, extensive and liberal copyright faq document, "The Regents Guide to Understanding Copyright and Educational Fair Use", which immediately disappeared from the web after this lawsuit was filed.

•IS THE PROPOSED INJUNCTION EVEN LEGAL?

The proposed injunction, with its detailed prohibitions concerning nearly every action taken by any human being at GSU, has to be read to be fully appreciated. As has been noted by several commentators and bloggers, it would be impossible to implement this injunction, even if one had the tons of money and time it would require. The mandatory and comprehensive permission requirements may be illegal as written, since they contradict actual statutory provisions of the Copyright Act, including Section 110, the Performance and Display exceptions, as well as a host of other copyright rulings. Let's not forget as well, the trampling of student FERPA and rights of privacy should plaintiffs be allowed regular access to the university computer system.

•IS IT A SMART MOVE?

I don't know. I do think about issues of credibility, ethics, and behaving in a consistent manner. In this proposed injunction, the publisher plaintiffs are demanding payment for use of nearly every single word, yet the same groups are willing to sign on to an Amended Settlement Agreement in the Google Books lawsuit, that basically allows unimpeded copying of orphan works. Go figure.

-Reality Check and Time Travel
Reading the history lesson of the old Classroom Guidelines, which, recall, were never law and specifically state they represent the minimum that could be done, this injunction's attempt to raise them from the dead and make them the "law" at GSU today (2011), is akin to falling down the rabbit hole. This injunction would have us travel back in time to the higher education world of the 1970s. Plaintiffs want us to adopt guidelines that were written in a world without personal computers, the internet, cell phones, text messaging, digital TVs, dvds, online classrooms, digital cameras, YouTube, fax machines, satellite radio, personal gps systems, Kindles, and on and on. Does this make any sense in today's reality?

Plaintiffs yearn for the good old days, when a business model based on making money from copies made more sense and was somewhat doable. They aren't alone. As society progresses, evolves, and advances, those who adapt to change and continue to make themselves relevant succeed, while others are no longer needed. Remember TV antennas, typewriters (manual and electric where a physical action was needed to start a new line and mistakes needed white-out or correctable white tape), carbon copy paper, eight-track tapes, cassette tapes, records and record players, rented telephones, televisions without remotes, slide projectors, overhead transparencies, renting the vhs or beta player machine when you rented a movie? Remember? Such items and entire businesses based on them played very relevant and critical roles in their day. Do they make sense today? If they do, I have a nice electric typewriter for sale...

-In the Land of Make Believe: Everyone who knows there is an economic crisis, raise their hand

In the middle of the worst economic period in my lifetime, plaintiffs want America's higher education system, facing yet another year of historic cuts in their budget - cuts that are now clearly affecting the quality of education delivered (huge classes, fewer choices, elimination of entire programs, majors, and colleges, staff, as well as faculty lay-offs, regular furloughing) universities, their students, and the underlying taxpayers, not only to come up with permission fees, even if the use is actually permitted under current copyright law, but also conjure money to develop and implement the infrastructure that would be required.

State employees (those who still have jobs) face yearly increases in health care costs and deductibles, parking fees, and other consumer cost of living increases, but receive no pay increase, even to address rises in the Consumer Price Index. At the same time, their workload increases as colleagues are riffed. Again, where is this money supposed to come from?

THANKS FOR THE HELP!

In my experience, university libraries have tried to do two things simultaneously, that actually undermine each other. First, librarians try their utmost to provide their users with convenient, fast, and pretty much seamless access to whatever materials they require. Although most faculty are aware that there is a money issue (because of annual serials cancellations), they usually get what they need anyway through ILL or library consortial access. By sheltering the faculty from any discomfort or access to resource issues, faculty can easily remain disconnected from responsibility for their deeply flawed and unsustainable scholarly communication system.

At the same time, many libraries have for years engaged in various efforts to raise faculty awareness about responsible management of their own copyrights and the significant negative effect their transfer of copyright to publishers has on the scholarly communication system in general and their own access to material in particular. Symposiums, workshops, open access, institutional repositories, the NIH mandate, the Tempe Principles, the SPARC Author's Addendum, Creative Commons, Know Your Copy Rights, and multiple other efforts have been launched with an eye towards "waking up" the silent majority of faculty who are either unaware or believe these issues are not theirs. Progress has been made, but, until the faculty really feel the pain, change will remain slow.

However, this proposed injunction is so onerous, so intrusive, so far-reaching, and so incompatible with the reality of teaching and learning in the 21st century, that simply widely publicizing the existence of and contents of the proposed injunction may well achieve what the library community has been trying to do for the last twenty years.

**WAKE UP THE FACULTY AND MOBILIZE THEM TO RECLAIM CONTROL OF THEIR OWN WORKS OF AUTHORSHIP AND THEIR OWN SYSTEM OF SCHOLARLY COMMUNICATION.**

This injunction is your fuel - now LIGHT that fire!

Peggy Hoon
CIP Intellectual Property Scholar

Source URL: http://www-apps.umuc.edu/blog/collectanea/2011/06/the-georgia-state-university-l.html
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A nightmare scenario for higher education

In anticipation of the trial starting on Monday in the copyright infringement case brought against Georgia State University by Cambridge, Oxford and Sage publishers, and partially financed by the Copyright Clearance Center, there has been a flurry of motions, mostly relating to the admission of various pieces of evidence.  But amongst that deluge of paper is a truly frightening document, the proposed injunction that the plaintiffs are requesting if they win the case.  I have always known that there was a lot a stake for higher education in this case, but the injunction the publishers want would be a nightmare scenario beyond even my most pessimistic imaginings.

First, if this injunction were adopted as proposed, it would enjoin everyone at Georgia State, including students, who would seem to largely lose their fair use rights by virtue of enrolling at GSU.  It would apply to e-reserves, faculty web pages and any learning management systems in use or adopted in the future.  It would make GSU responsible for every conceivable act of copying that took place on their campus.  In short, administrators at Georgia State would have to look over the shoulders of each faculty member whenever they uploaded course material to an LMS or any other web page.  Arguably, they would have to monitor student copying at copiers provided in their libraries, since GSU would be enjoined from “encouraging or facilitating” any copying, beyond a limit of about 4 pages, that was done  without permission.

Not only would GSU have to micromanage each faculty member’s choices about how to teach every class, they would also have to give the plaintiff publishers access to all of the computer systems on campus so that they too could examine each professor’s decisions.

I can only imagine the angry reaction of faculty members if this requirement were actually imposed on our campuses; they might finally rebel against the exploitation they suffer from these “academic” publishers.  In any case the order quite literally asks the impossible and was apparently written by people with no functional knowledge of how higher education actually works.  The administrative costs alone would be staggering, not to mention the permission fees.

Permission fees are the real purpose here, of course.  The goal is to drive more and more money to the Copyright Clearance Center, which is the only source of permission mentioned by name in the draft injunction.  The way the injunction would accomplish this would be by entirely eliminating fair use for Georgia State.

There is absolutely no mention of fair use or section 107 of the copyright law in this proposed order.  Instead, the coping that would be permitted without permission is entirely defined by the bright line rules of the 1976 Guidelines for Classroom Copying (see pp 68-70).  Actually, it is the guidelines PLUS an additional requirement that is being sought as the sole standard for non-permissive copying.

The guidelines’ rule on brevity would entirely circumscribe such copying if this injunction were granted.  That rule permits a copy of only 10% or 1000 words of a prose work, which ever is less.  Many schools that adopt 10% as a fair use standard will be shocked to find that, under this definition, that is often still too much to be acceptable, since the 1000 word limit will usually take over.

Also, the rule about cumulative effect — a limit on the total number of excerpts that can be made — would be enforced across the entire institution.  Two classes could not use the same work without paying permission, and Georgia State would be responsible for making sure that no system across its campus was providing access to any more than two excerpts (for the whole campus and of no more than 1000 words each) by the same author.

Added to these rules from the Guidelines is a new restriction, that no more than 10% of the total reading for any particular class could be provided through non-permissive copying.  The point of this rule is nakedly obvious.  If a campus had the temerity to decide that it was going to follow the rules strictly (since the flexibility which is the point of fair use would be gone) and make sure that all of its class readings fell within the guidelines, they still would be unable to avoid paying permission fees.  Ninety percent of each class’s reading would be required, under this absurd order, to be provided through purchased works or copies for which permission fees were paid, no matter how short the excerpts were.

Not only would the minimum safe harbor for fair use that the guidelines say they are defining become a maximum — the sum total of fair use — but that maximum would be shrunk much further by this 10%/90% rule.  The intentions of Congress in adopting fair use, including its clause about “multiple copies for classroom use,” would be mocked, gutted and discarded, at least for Georgia State.

I believe that compliance with this order, were the publishers to win their case and the Judge to adopt the proposed injunction, would be literally impossible.  For one thing, the record keeping, monitoring and reporting requirements would cost more than any institution can afford, even if they were technically possible.  Also, there is really no permission market that is broad and efficient enough to meet the demand that this order would create; the CCC might get what it paid for in underwriting the litigation if this order became the law for Georgia State, but they do not have the coverage, even with their Annual Campus License, to support this kind of regime if it were broadened to other campuses and other publishers.  Yet you can be sure that if those things happen, all of our campuses would be pressured to adopt the “Georgia State model” in order to avoid litigation.

This proposed order, in short, represents a nightmare, a true dystopia, for higher education.  We can only hope, I think, that Judge Evans is clear-sighted enough, and respectful enough of what Congress intended when it passed the 1976 Copyright Act, not to adopt this Orwellian proposal, even if she finds in favor of the plaintiffs.  No judge likes to issue an order that cannot be obeyed, and this one would be so far outside the stated policies of the United States in its copyright law that an appellate court could, and likely would, overturn it purely on those grounds.

Source URL: http://blogs.library.duke.edu/scholcomm/2011/05/13/a-nightmare-scenario-for-higher-education/
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KindleReads from DragonWeb - Issue 4

http://www.dragonweb.hu/projektek/e-konyv/#kindlereads

June 23, 2011

Composed and sent to your Kindle via SENDtoREADER