What this tool can do for you:

• Help you better understand how to determine the “fairness” of a use under the U.S. Copyright Code.
• Collect, organize & archive the information you might need to support a fair use evaluation.
• Provide you with a time-stamped, PDF document for your records [example], which could prove valuable, should you ever be asked by a copyright holder to provide your fair use evaluation and the data you used to support it. [why is this important?]
• Provide access to educational materials, external copyright resources, and contact information for copyright help at local & national levels.

Looks nifty! I don’t have a reason to use it now, but it’s a great tool to remember.

The host site, Copyright Advisory Network from the ALA Office of Information Technology Policy has more great tools and information about copyright and the use of copyrighted material.

(Source: twitter.com)

When there’s not a lot of good news around, it was uplifting to check Twitter late last night after a full day and find out that a federal judge has upheld fair use in an important case. Judge Harold Baer denied the Authors Guild et al’s motion for summary judgment (making quite a hash of their arguments in the process) but affirmed that what the Hathi Trust is doing is legal for three main reasons:

• Scanning books in order to create a giant index of them, without providing actual access to the works, is transformative.
• Copying for the purposes of preservation may not be transformative, but may well be a fair use.
• Making works available to the visually impaired is a fair use and one the judge finds particularly unarguable.

Figures. As soon as the other post goes up, I find another blog post I like on the subject. :) Some good points re: libraries are made in this post.

That doesn’t mean the decision is a total win for libraries and instructors. It’s a huge relief that most of the uses were found to be fair and that simply asserting possible financial losses would not automatically cancel out the other three factors. The judge found nothing compelling about the argument that publishers were threatened by fair use, but did imply that the fourth factor weighed more heavily if paying fees were made easy for the user. It’s worth noting that of the five infringing uses, four were from SAGE publications, and SAGE is the only one of the three plaintiffs that licensed permissions routinely for all of their books. There is now every incentive for publishers to assume all rights, leaving authors with little but the privilege of being published, and make payments slick and easy. It also provides incentives for institutions to avoid risk by simply paying up if that’s easier than thinking about fair use, simply passing the cost along to students or maybe the library. Can your students afford more expenses? How about your library? And to make things worse, the more money these licenses make, the more weighty the claim that not paying up harms the market.

Overall there is good news for libraries in the decision issued late yesterday in the Georgia State University e-reserves copyright case.  Most of the extreme positions advocated by the plaintiff publishers were rejected, and Judge Evans found copyright infringement in only five excerpts from among the 99 specific reading that had been challenged in the case.

That means she found fair use, or, occasionally, some other justification, in 94 instances, or 95% of the time.

There are a lot of posts from various people about this decision (released on Friday), but this one provides more background than some of the others, and it’s written in terms this non-lawyer can understand. :)

(Source: twitter.com)

You share music, rip DVDs, make Hitler whine about your first world problems, and much more in the course of your regular online activities—and more often than not, you do these things without giving a thought to the fact that you’re actually breaking the law. Here’s a look at how you’re inevitably circumventing copyright law and what you can do to protect yourself.

(Source: twitter.com)

arlpolicynotes:

Today, with help from our partners at the Center for Social Media at American University, and the Law School at AU, and with support from a grant from the Andrew W. Mellon Foundation, ARL is proud to unveil the Code of Best Practices in Fair Use for Academic and Research Libraries. Based on 36 hours of focus group deliberation with 90 academic and research librarians representing 64 institutions in meetings held all over the country, the Code is comprised of eight Principles that describe general circumstances where the groups found library uses to be fair, followed by Limitations that describe the outer bounds of the consensus and Enhancements that the groups thought represented salutary but not necessary steps to protect the interests of other stakeholders.

Topics covered include:

• Electronic reserves and course management systems
• Preservation
• Mass digitization for “non-consumptive” uses
• Facilitating access for the disabled
• Creating digital exhibits of library collections materials

That’s the overview, and you can learn more at our Code web page. In this blog post, though, I want to focus on what I think is the first question that most research and academic librarians are going to ask when they hear about this Code: Oh, no, not another set of guidelines! How is this thing any different than all the other stuff out there?

… [continued at the ARL Policy Notes tumblr]

The Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA) have to be understood in this light: it’s just another IP land grab. It’s an attempt to frighten those who would compete with the established media companies, an attempt to assert monopolistic control over creativity. The ability to take domains offline without due process, even on the basis of inadvertently linking to copyrighted material, is nothing if not an attempt to legitimize theft on a grand scale. Because there is no due process, a defendant can’t respond until he’s already out of business; and then, it’s a matter of whether the defendant can outlast Hollywood in their ability to pay legal fees. “Justice” is meaningless if you run out of money before you get to the end of your case.

…

Then as now, borrowing wasn’t limited to theatre. Mashups, which have been repeatedly attacked by the entertainment industry, are by no means a new art form; they’ve been central to creativity for years (related examples are embedded below). Bach’s “Goldberg Variations” incorporate a number of popular songs of the era, including the always popular “Cabbages and Beets drove me away from you,” in its entirety, along with “Get closer to me, baby” (that’s what the German really means, except the “baby” part). So did Beethoven’s sonatas, particularly the second movement of the magnificent Opus 110 piano sonata (“Our cat had kittens” and “ I’m a slob, you’re a slob”). I could list examples for pages; musicologists spend entire careers searching for this stuff. The complexity with which these songs are woven into a much greater piece is amazing, but they’re there, they’ve obviously there once you know what to look for, and they go way beyond what would survive “fair use” and the DMCA, let alone SOPA and PIPA.

(Source: twitter.com)

For a variety of reasons, the works at issue, which are foreign and produced decades ago, became part of the public domain in the United States but were still copyrighted overseas. In 1994, Congress adopted legislation to move the works back into copyright, so U.S. policy would comport with an international copyright treaty known as the Berne Convention.

In dissent, Justices Stephen Breyer and Samuel Alito said the legislation goes against the theory of copyright and “does not encourage anyone to produce a single new work.” Copyright, they noted, was part of the Constitution to promote the arts and sciences.

…

The lead plaintiff in the case, Lawrence Golan, told the high court that it will not longer be able to perform Prokofiev’s Classical Symphony and Peter and the Wolf, or Shostakovich’s Symphony 14, Cello Concerto because of licensing fees.

(Source: twitter.com)

Libraries and librarians

They’re not alone. Libraries represent another educational group that could face fallout from SOPA. The Library Copyright Alliance, a group whose members include the American Library Association and two other major library organizations, has also written a letter to the House of Representatives [pdf]raising major issues with the bill.

Alarmingly, the librarians point to “three pending copyright infringement lawsuits against universities and their libraries relating to their use of digital technology,” reflecting “a growing tension between rights holders and libraries, and some rights holders’ increasingly belligerent enforcement mentality.” That same enforcement mentality, under SOPA, could lead to criminal prosecutions of libraries, even for activities that are a fair use and conducted without the intention of commercial gain.

Last week, both the New Yorker and Wired used one of my photos to illustrate an article about the Aaron Swartz JSTOR downloading case.

I had posted the photo to Flickr with a Creative Commons-NonCommercial-ShareAlike license. I believe that the use by the New Yorker and Wired is commercial in nature and therefore a violation of my license, and I have contacted both publications… .

(Source: twitter.com)