DigitalKoans

Here's a selection of recent news articles and Weblog postings about the Georgia State copyright infringement lawsuit. See my prior postings for further information about the suit ("Georgia State Copyright Infringement Suit Coverage and Commentary" and "Georgia State Sued by Three Publishers for Alleged Digital Copyright Infringement in E-Reserves, Course Management, and Other Systems").

"Academic Publishers Sue US Uni over Digital Course Material"

It is an estimate that electronic course packs now constitute half of all syllabus reading at American colleges and universities. . . . Cambridge University Press, for example charges 17 cents a page for each student for electronic use, and generally grants permission for use of as much as 20 percent of a book.

"Copyright Suit Tests How Much Is Too Much"

Indeed, the complaint notes that the three plaintiffs have published more than 100 books and monographs authored by GSU professors. That GSU is a nonprofit institution shouldn't have any bearing on how much unauthorized copying it can do, Smith [Frank Smith, Cambridge University Press] says.

"We're a nonprofit," he points out. "I assume they wouldn't want their classes flooded with students who weren't paying tuition, but you could say there's no extra cost to filling another desk. I'm sure they would resist that, and I could see why."

"Publishers vs Academics"

The educational area is one where courts have traditionally afforded a greater degree of leeway in fair use and even the plaintiff's lawyer has to admit that he can't find a law or binding precedent stating how much digital copying would be "not too much." It seems likely that if the case ever makes it as far as a decision that decision would be appealed. My personal opinion is that they'll work out a settlement before it gets that far—neither side wants to see a precedent set that would go against them. Plus there's a core reality that academic publishers and educational institutions exist in a kind of death-grip dependency that would harm both if it was violently broken.

"Publishing Group Hires Qorvis for Lawsuit Messaging"

The Association of American Publishers hired Qorvis to handle messaging for three academic publishers' copyright lawsuit against Georgia State University.

"Suing Georgia"

So, . . . what's left if you really, really, really believe that educators ought to be able to use whatever they need to and want to use in their classrooms without worrying about what it costs or whether it's fair use?

Consumer resistance, or OA.

"Temperance Is a Virtue"

If that case every reaches the stage of arguing the fair use defense, I hope the court will look very hard at the second fair use factor—the nature of the copyrighted work. Previously, the action on this factor has been minimal and has largely focused on published versus unpublished works and how much originality is necessary for "thick" or "thin" protection. But the economics of a particular segment of publishing, especially one as dysfunctional as scholarly publishing, ought to be considered when analyzing fair use, and factor two is a good place to do that. If the system is structured in a way that undermines the whole incentive purpose of copyright, as I have argued the scholarly publishing is, factor two, which really focuses on the expectations of creators of different types of works, should strongly favor an expansive application of fair use.

"What Does the Lawsuit against Georgia State Mean?"

There are a number of possible outcomes in this case. Settlement is possible. The complaint itself is somewhat vague in its details; while specific examples are provided for some of the allegedly infringing uses, the publishers provide no specific details or examples of professors linking to course material from their open web pages, or any information about specifically infringing behaviors within the course management system. Although it claims the copying is in excess of what is permitted as fair use, the publishers do not offer a specific discussion of what it considers to be the bounds of fair use, nor does it adequately define course packs, nor offer any interpretation of the cited cases against copy shops, other than to broadly claim that they act as guiding precedence.

EDUCAUSE has released a podcast on P2P file sharing called "Don't Download This Panel." The podcast is from a panel discussion about the topic at the EDUCAUSE 2008 Western Regional Conference.

The speakers are:

• Greg DePriest, Vice President, Technology Policy, NBC Universal
• Kenneth C. Green, Founding Director, The Campus Computing Project
• Fred von Lohmann, Senior Staff Attorney, Electronic Frontier Foundation
• Session moderator: Kent Wada, Director, IT Strategic Policy, UCLA

The draft designation for the Creative Commons Statement of Intent for Attribution-ShareAlike Licenses has been removed, and the document is now the official explanation of the goals of this group of licenses.

Read more about it at "Creative Commons Statement of Intent for Attribution-ShareAlike Licenses Released."

Here's a selection of news articles and Weblog postings about the Georgia State copyright infringement lawsuit.

"Coursepack Sharing: An Idea Whose Time Has Come?": John Mark Ockerbloom, who maintains The Online Books Page, looks at the suit from an open access point of view. He says:

But in a world that's brought us global content sharing systems like Flickr, CiteULike, and PubMedCentral, it's not that much of a stretch to imagine systems that would let instructors provide and share open access course readings more readily. A well-designed, browsable and searchable repository of such readings could provide a convenient way for professors to upload, organize, and disseminate open coursepacks for their students ("Just go to the OpenCoursePacks website, and type in the name of my course", they could say). The same site could also let profs could tag, annotate, and recommend their readings, thereby making it that much easier for other professors to find and include suitable open access content in their own coursepacks. With a good design, and suitable scale and interest, a coursepack sharing site could make a lot more good instructional material widely and freely used and shared.

"Georgia State Sued For Copyright Infringement": Information Media Partners supports the suit and provides an interesting comment about publishers' fear of entering the "valley of death" of the print-to-electronic transition.

"Oxford, Cambridge and Sage Sue Georgia State": Paul N. Courant, University Librarian and Dean of Libraries at the University of Michigan, reacts to the suit. In summary, he says:

Things have come to a pretty pass when academic institutions sue each other over academic matters. Even if the publishers prove to be right on the merits, the lawsuit ought to be the last resort, and student use of academic materials produced by academic institutions ought be priced at something like marginal cost, rather than at the price that maximizes profit. And one wonders why three rich and distinguished institutions would go after an urban university that is much less well-resourced.

"A Press Revolt against E-Packet Practices": Andy Guess' Inside Higher Ed article overviews the suit, provides background information about prior communications between GSU and the plaintiff’s law firm, notes that the suit indicates that the e-reserves system wasn't restricted access until after a complaint to the university, and includes a call from Kenneth C. Green, director of the Campus Computing Project, for a iTunes-like system for scholarly material.

"Publishers Sue Georgia State for Copyright Infringement": Calvin Reid's Publisher's Weekly article overviews the suit and includes comments by Patricia Schroeder (AAP President and Chief Executive Officer), Allan Adler (AAP Vice President, Legal and Governmental Affairs), and Niko Pfund (Oxford University Press Vice President).

"Publishers Sue Georgia State University Over E-Reserves": Andrew Albanese's Library Journal article overviews the suit and includes comments by Pfund as well as a useful brief recap of prior e-reserves disputes and resolutions. (For more background, see Albanese's 2007 article "Down with E-Reserves: Confusing, Contentious, and Vital, E-Reserves Fuel Higher Education—And an Ongoing Copyright Battle.") Albanese notes that the "suit offers a remarkably detailed view of what the plaintiffs believe to be infringing activity at GSU, including specific examples of uses it considers to be well beyond the scope of fair use and a detailed appendix of alleged infringed materials."

"Trying to Sue State U": Kevin Smith, Scholarly Communications Officer at Duke University, analyzes the suit, weaving in an analysis of a recent case of state sovereign immunity and copyright infringement (discussed here in "Copyright Infringement Liability of State Employees"). In summary, Smith says:

A little bit of attention to the economics of scholarly publishing quickly undermines the claim in this complaint that, without permission fees for electronic reserves, the incentive system of copyright will be undermined. No monetary incentive currently exists for the vast majority of academic publishing, from the point of view of faculty, yet academics keep writing. There is no evidence at all that this well of free content will suddenly go dry if publishers are not able to collect an additional income stream from that well. If this suit goes forward in spite of sovereign immunity, that should be the issue on which the court focuses its attention.

For further reactions, see Jennifer Howard's "Librarians React to Lawsuit Against Georgia State U."

Analyzing Mary Minow's "District Court Invalidates Portion of Copyright Act as Unconstitutional; Holds State University and Employee Immune from Claim for Copyright Infringement," copyright expert William Patry has written a timely summary of the copyright infringement liability that state employees face in light of the state sovereign immunity doctrine ("State Sovereign Immunity and State Employees"), and Georgia Harper has commented on his analysis ("Another Attention Getter on the Campus Infringement Front").

Here's an excerpt from Harper's post:

His [Patry's] commentary, and the commentary to which he points at the Stanford Fair Use blog [Minow's commentary], both make the distinction which can be sort of confusing, that even though sovereign immunity protects individuals acting in their official capacity, when they have acted in a way that is illegal, they are going to get stripped of the character of "acting within official capacity," Basically, you can't be acting officially if you are breaking the law. It can't be the official act of the state to break the law. Isn't logic great?

The Association of American University Presses has issued a press release supporting the digital copyright lawsuit against Georgia State University (see "Georgia State Sued by Three Publishers for Alleged Digital Copyright Infringement in E-Reserves, Course Management, and Other Systems.")

Here's an excerpt from the press release:

In today's universities, it is increasingly rare for students to buy assigned books at the campus bookstore or purchase coursepacks at the local copyshop. Instead, professors often distribute assigned course readings electronically through digital course management, e-reserves, or similar systems. While many universities seek legally required permissions, others do not and simply distribute substantial excerpts from books and journals without permission or compensation. This has become a significant problem for university presses, who depend upon the income due them to continue to publish the specialized scholarly books required to educate students and to advance university research.

Against this backdrop, three scholarly publishers, Cambridge University Press, Oxford University Press, and Sage Publications, have recently filed suit against Georgia State University officials, citing a pattern of illegal distribution of copyrighted book and journal content through digital course management and similar systems controlled by Georgia State. The Association of American University Presses supports the difficult decision made by Cambridge and Oxford, both AAUP members, to take this action—particularly in light of its broad concerns for the critical role that university presses, which are non-profits, play in the world of university instruction and scholarly communications.

The basic legal issue in the suit, namely whether permissions are required for course materials, was forcefully addressed in Basic Books v. Kinko's Graphics Corp. (1991), which held that the coursepacks sold by Kinko's required the payment of permissions fees to publishers, and that the reproduction of a single chapter was "quantitatively [and] qualitatively substantial" under the Copyright Act. While AAUP respects the doctrine of fair use, which permits spontaneous and limited uses of copyrighted material for instruction, it is clear that universities need to seek permission for more regular and substantial uses of excerpts in coursepacks and other assigned reading. That the delivery method for coursepacks is digital rather than print-on-paper does not change the nature of the use or the content, and such uses are governed by the same legal principles established in earlier cases.

University presses are non-profits that operate on very thin margins, and their primary audience is the university community. Indeed, although university presses comprise only a small segment of the market, they supply a very significant proportion of the books and journal articles taught and read in universities, particularly in graduate and upper-level undergraduate courses. . . .

University presses also serve a critical role for universities by providing faculty with a platform to publish their research, a role central to scholarship and the tenure system. . . .

Many universities have understood these realities and have promulgated strong institutional policies on the digital use of copyrighted materials. Over the last two years, publishers have had productive discussions with several universities including Cornell, Syracuse, Marquette and Hofstra, all of whom have recently adopted sound copyright policies about the use of digital course materials. Several mechanisms currently exist for universities to obtain clearance for the use of these materials, whether through individual publishers or the Copyright Clearance Center. While many universities have adopted a centralized approach and treated electronic course materials as they do paper, Georgia State has flatly rebuffed repeated attempts by publishers to work toward an acceptable university policy and has continued to foster a system of widespread copyright abuse.

The decision to file a suit is never easy, and always a last resort. It is particularly painful for non-profit publishers to sue a university, even if in this situation it was unavoidable. "It feels like suing a member of the family" said AAUP Executive Director Peter Givler. "Unfortunately, the alleged infringement is like stealing from a member of the family."

Backed by the Association of American Publishers, Cambridge University Press, Oxford University Press, and SAGE Publications have sued Georgia State University alleging "systematic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works" via GSU's e-reserves, course management, and other systems.

The suit "seeks injunctive relief to bring an end to such practices, but does not seek monetary damages." The defendants named in the suit are the GSU President, Provost, Dean of Libraries, and Associate Provost for Information Systems and Technology.

Read more about it at "Publishers Sue Georgia State on Digital Reading Matter" and "Publishers Take Action against Georgia State University Copyright Infringement."

NPR has released a digital audio interview with Harold Varmus (Noble Prize winner, President of the Memorial Sloan-Kettering Cancer Center, former Director of the National Institutes of Health, and co-founder and Chairman of the Board of Directors of the Public Library of Science) about the NIH Public Access Policy and open access.