Copyright Today: An Interview with Tracy Thompson-Przylucki

This is the first in a series of interviews with the 2012-2013 chairs of AALL’s three policy committees: the Copyright Committee, Digital Access to Legal Information Committee, and Government Relations Committee.

Tracy Thompson-Przylucki is the Executive Director of the New England Law Library Consortium (NELLCO) and Chair of the Copyright Committee. The Government Relations Office recently sent Tracy a number of questions about the status of copyright today. Here is what she had to say:

The courts have recently handled several cases affecting copyright and mass digitization projects, including Authors Guild, Inc v. Hathi Trust and Authors Guild, Inc v. Google Inc. What is the impact of these cases on law libraries?

The evolution from a print to a digital information world has forced us all to rethink the application of copyright laws to the business of libraries. What may once have seemed like settled law is no longer sufficient to address the rights and interests of information stakeholders in a wired, global marketplace. Freeing information from the limits of the bound volume, and access from the limits of brick and mortar has led to a series of copyright challenges in the courts over the past several years.

The decisions coming out of these courts suggest a trend that is generally favorable to libraries’ interests. The two you mention, as well as the Georgia State case and Kirtsaeng (see below), all have copyright implications that impact libraries. Hathi and Georgia State, both decided within the last six months, dealt with fair use exception claims under section 107 of the U.S. Copyright Act.

Oxford and Cambridge University Presses and Sage Publications brought suit against GSU in 2008, arguing that GSU’s e-reserves system exceeded fair use in violation of copyright. In Hathi, the Authors’ Guild sued in 2011, claiming that HathiTrust’s mass digitization efforts and Orphan Works Project were not compliant with the library exceptions carved out in sections 107 and 108, and therefore infringed on the copyrights of Guild members.

Determining what constitutes fair use is no simple matter, and requires courts to apply a four factor analysis. The four factors are:

(1) purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) nature of the copyrighted work;

(3) amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) effect of the use upon the potential market for or value of the copyrighted work.

The decisions in these two cases, both of which are subject to appeal, favor a more expansive definition of fair use and provide guidance to libraries to help shape future digitization and distribution activities. Two points of particular interest to libraries emerged from the Hathi decision. Judge Harold Baer, finding in favor of Hathi Trust, soundly rejected the plaintiffs’ claim that the library exceptions included section 108 limited libraries’ ability to claim fair use exceptions under section 107. This is an important clarifying precedent that should preempt any future attempts to erode libraries’ rights in this way. Judge Baer also paid careful attention to balancing the goals of our copyright regime with the rights of copyright owners. In his decision he states:

I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP [Mass Digitization Project] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA.

Judge Evans authored an exhaustive 350 page decision in the GSU case. In that case, plaintiffs claimed 99 specific incidents of copyright infringement. After a comprehensive analysis and application of each of the four fair use factors above, the Judge found only 5 infringing instances. The remaining 94 incidents were deemed to be acceptable fair uses and legitimized GSU’s reliance on the fair use exception to support their e-reserve program.

In her decision, Judge Evans also established a rule for factor #3 (amount of work used) which sets 10% (for works with fewer than 10 chapters) or one chapter (for works over 10 chapters) as the acceptable amount of a work that can be used under fair use. While this provides some guidance for libraries, it may set an arbitrary standard that in practice is more rigid than libraries would like.

The legacy of the Google Books case remains unclear. Two separate cases, Authors’ Guild v. Google and McGraw-Hill v. Google, filed in 2005, were merged into this single, class action suit.Google was launching a mass digitization project, the ambitious goal of which was, as stated by Google’s Adam M. Smith, “. . . to make the full text of all the world’s books searchable by anyone.” To that end, Google had established a project which included the Books Rights Registry (BRR); an opt-out regime for copyright holders of the works Google was digitizing. Google proposed to digitize everything without prior approval of copyright holders. Through the Registry they would respond to any take down demands and/or compensate copyright holders who came forward.  Their model shifted the onus of protecting copyright onto the copyright holder, and also effectively circumvented the orphan works problem.

The Google Books case went through several failed settlement proposals, but in early Oct. 2012 the parties in the McGraw-Hill (publishers) piece of the litigation finally reached an out-of-court agreement. It is not clear what the terms of the agreement are (some of which are confidential), except that the opt-out requirement seems to have survived. The parties to the agreement recognize that they have reached a settlement without addressing any of the underlying legal issues.

The Authors’ Guild is still moving forward in its class action suit against Google. Hopefully some of the legal issues, such as the status of orphan works, legality of the opt-out regime, compensation of rightsholders, will be resolved in the course of that litigation.

The Supreme Court will hear arguments in Kirtsaeng v. John Wiley & Sons, Inc. on October 29. What is the potential impact of Kirtsaeng

The Copyright Committee published an issue brief last week on Kirtsaeng. Thanks to our colleagues George Pike and Amy Ash for their work on this. The facts of the case tell the story of a student from Thailand, Mr. Kirtsaeng, attending college in the U.S. Kirtsaeng began purchasing text books in his home country and selling them for a profit to fellow students in the U.S. Wiley contends that this violates Wiley’s distribution rights. Kirtsaeng’s defense is that his actions are protected by the First Sale Doctrine.

The First Sale Doctrine of copyright protects the rights of property owners to resell, lend or otherwise dispose of items which contain copyrighted elements, and which have been acquired in the first instance with the permission of the copyright holder. The Doctrine, among other things, enables libraries to lend copyrighted works without violating copyright. The question in Kirtsaeng is whether the Doctrine applies only to goods manufactured in the U.S.

If the court decides that First Sale applies only to goods manufactured domestically, libraries would be required to track the origin of each and every item that they lend, sell or otherwise dispose of, or risk copyright infringement claims. Even if libraries had the resources to comply with this sort of requirement, the origin of manufacture of any item is not necessarily readily discoverable. The impact on library work flows, gift management, and acquisitions would be enormous. The impact on library users’ ability to gain access to information could be severely curtailed. The efficiency and utility of libraries could be undermined.

While Kirtsaeng has the attention of the library world, its impact is actually much further reaching. First Sale applies not only to those things we typically think of as copyrighted materials (books, articles, etc.) but also to almost all goods in the consumer sphere. This is known as the ‘gray market’ impact of Kirtsaeng. When a consumer purchases a car, an article of clothing or a cell phone, each of these may contain copyrighted elements. However, the copyright owners have authorized that first sale, and subsequently the owner may lend or resell that item at will. If Wiley were to prevail in Kirtsaeng the whole downstream disposition of consumer goods, not just library materials, comes under fire.

Given the tenor of the oral arguments this week, the Justices are acutely aware of the ‘horribles’ that could result in the event that the Wiley interpretation is embraced by the Court, not just for libraries but for the entire marketplace of consumer goods. A reading of the transcript suggests a decision that will be favorable to libraries. Justice Kennedy reminded petitioners that common sense demands that the Court explore the potential consequences of a ruling. Now we wait to see how they balance the competing interests in this case.

Are there other copyright issues law librarians should be watching? 

In addition to all of these cases that have bubbled up on the copyright landscape, the Copyright Office has begun exploring a more active approach to the orphan works problem. Orphan works are those published materials still in copyright for which no rights holder can be located. Earlier this month, the Copyright Office issued a notice of inquiry inviting comment by the public. According to the notice, they are “interested in what has changed in the legal and business environments during the past few years that might be relevant to a resolution of the problem and what additional legislative, regulatory, or voluntary solutions deserve deliberation at this time.” I encourage AALL members from all library types to seize this advocacy moment and comment. The special expertise of lawyer librarians can really help to inform the efforts of the Copyright Office with respect to orphan works. The comment period is open through Jan. 4, 2013.

Please tell us about any other initiatives that the Copyright Committee is working on this year.

The Copyright Committee formed 3 sub-committees this year to address some of the work that we need to get done. The first sub-committee is Education. Alicia Brillon and Kelly Leong took the lead on that front. They worked to get our 2 program proposals in shape and submitted by the deadline. Given that the program selection process is blind this year, I’ll refrain from telling you about these excellent submissions until after the selection process is over!

The second sub-committee is Current Awareness. Meg Kribble (Chair-elect), Amy Ash and I are focusing our efforts here. This group will be working to keep the membership informed about copyright issues through issue briefs, list postings, and the Copyright Committee Blog. Members can set up an RSS feed to be notified of new blog postings. The sub-committee has also discussed the development of a copyright toolkit for law librarians. That’s something we plan to explore further this year.

Finally, the Web Content sub-committee, consisting of D.R. Jones and Kevin Miles, is taking a close look at the organization of all of the copyright materials hosted on the AALLnet website. Since the content from the old site was imported to the new site there hasn’t been a systematic review and inventory of both the content and the structure of the information. We’d like to make it easier for users to navigate information about AALL’s copyright policies, the Copyright Committee, and copyright issues of interest to members. We also want to make it easier to determine the currency of materials posted on the site. We’ll be working with you in the Government Relations Office to accomplish this work.

What resources would you recommend to AALL members who would like to learn more about copyright issues?

So many good resources out there! Of course, there is the content on the AALL website and the Copyright Committee Blog that I’ve already mentioned. And members should monitor the Copyright Office website. Laura (Lolly) Gasaway, a past-president of AALL, has made significant contributions to the copyright arena. Her regular “Copyright Column” in Against the Grain is a must read.  Another copyright librarian to follow is Lesley Ellen-Harris (@copyrightlaws on Twitter). Lesley is well-versed in both Canadian and U.S. copyright law. She edits The Copyright and New Media Law Newsletter, maintains the website, and offers web-based copyright courses for librarians, including Certificate in Copyright Management: Principles and Issues, offered through SLA’s Click University.  James Grimmelmann, a faculty member at NYLS, pays careful attention to copyright and blogs about current copyright cases at the Laboratorium.

The University of Michigan Copyright Office has some great Copyright Libguides available. Columbia University’s Copyright Advisory Office maintains an excellent site under Ken Crews’s leadership, and I’d be remiss if I didn’t urge every librarian reading this to add Ken’s Fair Use Checklist to your copyright compliance toolkit. Kevin Smith’s blog, Scholarly Communications @ Duke is bookmark-worthy. ALA’s page of copyright resources, and the Library Copyright Alliance, a joint effort of ALA, ARL and ACRL, are also notable.

I’ve just scratched the surface here but this should be a good start.

Thanks, Tracy!

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