Recent proposals to address library digitization through variations of compulsory licensing raise some important questions about the justification for compulsory licenses, the institutional design considerations that should go into any compulsory license regime and the relationship between fair use and compulsory licensing. For the most part, compulsory licenses are no substitute for fair use. Although fair use can be explained in terms of ‘market failure’ in the most abstract sense, in practice most fair uses are not simply the result of high cost of transacting, or if they are, these are not the kinds of transaction costs that can be resolved by a one-size-fits-all compulsory license. Compulsory licenses can be socially beneficial in theory, but they can be extremely problematic to administer in practice. A good compulsory license system may be an effective complement to fair use, but the case for crowding out fair use with compulsory licenses is weak.

In this presentation I explain six important institutional design considerations that must be addressed before anyone can seriously advocate establishing a copyright collective by legislative fiat.

Institutional Design Issues

Rate-Setting {who decides? what decision standard? how does the decision-maker get reliable information?}
Monopoly Pricing
Principal-Agent Problems
Mission Creep
Stifling Innovation
Overshadowing other policy imperatives

July 26, 2013July 27, 2013

Setting the record straight on fair use in the U.S.

The Fair Use Doctrine in the United States — A Response to the Kernochan Report, by Gwen Hinze, Peter Jaszi & Matthew Sag, July 26, 2013.

Our submission provides a brief overview of the U.S. experience of the fair use doctrine since its partial codification in the Copyright Act of 1976 and responds to some specific issues raised in an earlier submission to the Australian Law Reform Commission by the Kernochan Center for Law, Media and the Arts. Gwen, Peter and I were concerned that the Kernochan Report’s representation of American experience of fair use was incomplete and potentially misleading. We wrote this submission to provide the ALRC with a different perspective.

Our submission addresses nine questions about the fair use doctrine in the United States

Does the american experience of fair use show that it is unpredictable?
Do recent cases demonstrate that fair use is uncertain in application?
What is the role of fair use guidelines in the United States?
What is the role of various “best practices” guidelines in the United States?
What does fair use mean to the education sector in the United States?
Would australian fair use rulings diverge from United States’ precedent over time?
Would adopting a fair use doctrine lead to more litigation? Would fair use be useful without substantial litigation?
How does educational fair use relate to the anti-circumvention provisions under United States law?
Is the fair use doctrine compatible with the international obligations of the United States?

Available for download here.

July 12, 2013July 12, 2013

No one prints email anymore. Use shorter email signatures.

No one prints email anymore! Or, if they do it isn’t because they need ten additional lines of clutter giving them the same information over and over again.

I realized the other day that my email signature was taking up about ten lines of text. This is ugly and stupidly inefficient. I solved this problem by creating hyperlinks that tell people everything they need to know or point them where to find it out.

There is no reason why the link to my ssrn working papers has to say “http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=461043” it just needs to point there.
An easy way to do this is by creating the links in a draft email.

Then cut and paste that into your email signature and format according to taste.

July 1, 2013

More reactions to today’s #fairuse remand in #googlebook lawsuit

The key quote from today’s decision to remand Authors Guild v. Google back to the district court is:

Putting aside the merits of Google’s claim that plaintiffs are not representative of the certified class—an argument which, in our view, may carry some force—we believe that the resolution of Google’s fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues, including those regarding the commonality of plaintiffs’ injuries, the typicality of their claims, and the predominance of common questions of law or fact, see Fed. R. Civ. P. 23(a)(2), (3), (b)(3).

The court is not giving that much away, but my prediction is that the Second Circuit is taking Google’s class certification arguments and their fair use defense very seriously. Judges like to be efficient. If they can dispose of this case on the grounds that library digitization + search is fair use, there is no class. A few authors may have a case about snippets that were too long (not a good case, but a case) but the idea of a class in the millions evaporates if the basic non-expressive uses are held to be fair use.

Another judge in the Southern District of New York has already made this ruling in the companion case of Authors Guild v, Hathitrust.

July 1, 2013

Second Circuit remands the other #GoogleBook case. #FairUse determination required

The Second Circuit just handed down its decision in Authors Guild v. Google. The court, Judges Level, Cabranes and BD Parker, ruled that Denny Chin (sitting by designation as the United States District Court for the Southern District of New York) was “premature” in certifying the plaintiff class. Before certifying the class, the court below should have class certification made a determination on the merits of Google’s “fair use” defense.

Accordingly, the June 11, 2012 order certifying the class was vacated and remand.

My first reaction is that this is huge win for Google and for the broad coalition of groups who think that library digitization for particular purposes (text mining, search engines, access for the visually impaired) is fair use.

My second reaction is that I think the Second Circuit is trying to tee things up so that they can decide the fair use issue in Authors Guild v. Google and Authors Guild v. Hathitrust all at once.

You can download the decision here: Authors_Guild_v_google_remand

June 16, 2013

A Collection of Briefs in Authors Guild v. HathiTrust

I have collected all the briefs in Authors Guild v. Hathitrust for anyone who is interested.

The leading number refers to the court docket. There are some briefs in support of the plaintiffs, but the majority are in support of the defendants.

You can download the whole set as a zip file (26MG) here: AG v. Ht Appeal Briefs as filed 2013 …

Or individually from the links below:

June 7, 2013

Law Reform Commission Discussion Paper urges adoption of fair use in Australia

The Australian law Reform Commission has just released its much anticipated Discussion Paper on Copyright and the Digital Economy. Available in both pdf and e-book at http://www.alrc.gov.au/publications/copyright-and-digital-economy-dp-79.

The Discuss Paper was published on June 5, 2013 and released June 6, 2013. The paper is not definitive, it launches the second stage in the commission’s public consultation processes. The closing date for submissions is Wednesday July 31, 2013.

The Discuss Paper is 388 pages long and I must confess I have not finished reading yet. But I have scanned enough to list some highlights. The Discussion Paper recommends:

Repeal Australia’s statutory licensing regime for education and government
Replacing the specific exceptions in the Copyright Act with an open-ended ‘fair use’ exception
In the alternative, if a fair use test is not enacted, the ARLC recommends a new fair dealing for education provision. This would enable educational institutions to copy for students within limits determined by a test of fairness.

Obviously, even contemplating such significant changes to Australian copyright law will provoke a backlash from the copyright owner interest groups. Hopefully these groups will do more than make captious ‘lobbyist’ arguments. I heard some ludicrous suggestions when I was in Australia earlier in the year, such as the fair use doctrine would be unconstitutional because Australia has no First Amendment.

But there is no denying Australia copyright law is horribly broken and major changes are required. Internet search engines are technically illegal in Australia (so are Tivo and similar DVRs thanks to a recent decision of the Full Federal Court) and Australian schools routinely pay for trivial uses of copyrighted material that are fair and free in the rest of the world.

June 5, 2013June 5, 2013

Digital Humanities amicus brief in Authors Guild v. Hathitrust has been filed, and is now available

Brief of Digital Humanities and Law Scholars as Amici Curiae in Authors Guild v. Hathitrust

This Amicus Brief was filed in the United States Court of Appeal for the Second Circuit in the case of Authors Guild v. Hathitrust on June 4, 2013. The case is on Appeal from the United States District Court for the Southern District of New York, No. 11 CV 6351 (Baer, J.)

Download from SSRN.com (http://ssrn.com/abstract=2274832)

a brief summary

Amici are over 100 professors and scholars who teach, write, and research in computer science, the digital humanities, linguistics or law, and two associations that represent Digital Humanities scholars generally.

Mass digitization, especially by libraries, is a key enabler of socially valuable computational and statistical research (often called “data mining” or “text mining”). While the practice of data mining has been used for several decades in traditional scientific disciplines such as astrophysics and in social sciences like economics, it has only recently become technologically and economically feasible within the humanities. This has led to a revolution, dubbed “Digital Humanities,” ranging across subjects like literature and linguistics to history and philosophy. New scholarly endeavors enabled by Digital Humanities advancements are still in their infancy but have enormous potential to contribute to our collective understanding of the cultural, political, and economic relationships among various collections (or corpora) of works—including copyrighted works—and with society.

The Court’s ruling in this case on the legality of mass digitization could dramatically affect the future of work in the Digital Humanities. The Amici argue that the Court should affirm the decision of the district court below that library digitization for the purpose of text mining and similar non-expressive uses present no legally cognizable conflict with the statutory rights or interests of the copyright holders. Where, as here, the output of a database—i.e., the data it produces and displays—is noninfringing, this Court should find that the creation and operation of the database itself is likewise noninfringing. The copying required to convert paper library books into a searchable digital database is properly considered a “non-expressive use” because the works are copied for reasons unrelated to their protectable expressive qualities — the copies are intermediate and, as far as is relevant here, unread.

The mass digitization of books for text-mining purposes is a form of incidental or “intermediate” copying that enables ultimately non-expressive, non-infringing, and socially beneficial uses without unduly treading on any expressive—i.e., legally cognizable—uses of the works. The Court should find such copying to be fair use.

May 22, 2013May 27, 2013

Please Support the Digital Humanities Amicus Brief in AuthorsGuild v. Hathitrust

Call for Support

We are seeking your support for our amicus brief in the Court of Appeals in Authors Guild v. Hathitrust. We believe that this case will have a dramatic effect on research in computer science to linguistics, history, literature and the digital humanities.

Background

In 2005, the Authors Guild, a lobby group with about 8,500 members including published authors, literary agents and lawyers, filed a class-action lawsuit claiming that Google’s library digitization project was a “massive copyright infringement”. A settlement was proposed in that case in 2008, modified after strenuous objections from academics, other author groups and several foreign governments in 2009 and rejected by the court in 2011.In September 2011, in a separate case, the Authors Guild sued several universities and the HathiTrust for participating in Google’s book-scanning project. On July 7, 2012 the Association for Computers and the Humanities and more than 60 scholars from disciplines ranging from law and computer science to linguistics, history and literature, filed an amicus curiae brief in Authors Guild v HathiTrust on behalf of the digital humanities.

District Court Decision

On October 10, 2012, Judge Baer (Southern District of New York) ruled against the Authors Guild and their fellow plaintiffs and held that the library digitization for uses such as text-mining are “transformative” as that term of art is used in copyright law and, on balance, fair use (i.e., not copyright infringement). Judge Baer’s opinion cites our amicus brief, adopts one of our examples and appears to follow the basic structure of our legal argument.

Appeal

The Authors Guild is now appealing Judge Baer’s decision (on this and other grounds) and we would like your support in drafting a new brief for the U.S. Court of Appeals for the Second Circuit.

Argument in a nutshell

According to the U.S. Constitution, the purpose of copyright is “To promote the Progress of Science and useful Arts”. Copyright law should not be an obstacle to statistical and computational analysis of the millions of books owned by university libraries. Copyright law has long recognized the distinction between protecting an author’s original expression and the public’s right to access the facts and ideas contained within that expression. That distinction must be maintained in the digital age so that library digitization, internet search and related non-expressive uses of written works remain legal.

Draft available on request

Email [email protected] for a full draft, or download our previous effort (in related district court litigation) here. The final brief will be very similar to this.

How you can help preserve the balance of copyright law

(1) You can let us know that you would like to join our brief (we need your name and affiliation e.g. Associate Professor, Jane Doe, Springfield University). We would also like to add a one line description of any aspect of your work that is relevant to the brief, e.g. ___ Grant to study ___ in ____ literary corpus or a relevant publication.

Please note that ours is not the only amicus brief being filed in this case. Jennifer Urban (U.C. Berkeley) will also be filing a brief on arguing that the plaintiffs do not represent the interests of academic authors who comprise a large proportion of the class. YOU CAN’T SIGN BOTH. Please consider endorsing whichever brief speaks most closely to your concerns as an academic.

We need your name etc., by June 3, 2013. Please email [email protected] or enter your details directly via this online tool.

(2) You can point us toward easy to understand and compelling examples of the kind of research enabled by mass-digitization (we can’t include all your wonderful work, but we would like to understand it better).

(3) You can send this link to other academics and Phd students.

Thank you!

Matthew Sag, Matthew Jockers and Jason Schultz

May 21, 2013May 21, 2013

Fair use and (non-)compliance with other statutory exceptions (Authors Guild v. Hathitrust)

Introduction and Necessary Disclaimer

This the last of a series of posts commenting on the Authors Guild Appeal Brief (February 25, 2013) in Authors Guild v. Hathitrust. The views expressed on this site are purely my own.

Has the Authors Guild Discovered a new fair use factor?

The plaintiffs in Authors Guild v. HathiTrust had a lot to say about Section 108 of the Copyright in when this case was in the district court. Section 108 gives libraries the right to make a limited number of copies of certain works for specified purposes. Section 108(f)(4)) explicitly states that “[n]othing in this section. . . in any way affects the right of fair use as provided by section 107”, nonetheless the plaintiffs argued that any fair-use defense was in fact precluded by Section 108. Intriguingly, the plaintiffs also argued that Section 121 of the Act which expressly authorized the reproduction of books for the blind was also preempted by section 108’s general provisions on library photocopying. Not surprisingly, the district court held that “the clear language that Section 108 provides rights to libraries in addition to fair-use rights that might be available.”

In their Appeal Brief to the Second Circuit the plaintiffs have focused on a different line of argument, they now contend that the district court erred in failing to consider the express limitations of section 108 in its evaluation of fair use. In other words, because “library copying – is specifically addressed by another statute, Section 108, which therefore should guide the fair use analysis” (Authors Guild Ap. Br. Page 30).

Cute. So every time Congress creates a public interest exception to copyright, that exception becomes a limitation on the balancing function of the fair use doctrine and thus, in effect, an expansion of the rights of copyright owners. I don’t buy it and I am pretty sure the court of appeals won’t either.

The argument can also be flipped the other way. Jonathan Band argues in a recent paper that

Courts should consider a defendant’s substantial compliance with a specific exception in Title 17 when applying the fair use privilege. As the court assesses the first fair use factor, the purpose and character of the use, the court should give great weight to the defendant’s substantial compliance with the exception. The court should recognize that Congress determined that uses of similar purpose and character did not constitute infringement.

See, Jonathan Band, The Impact of Substantial Compliance with Copyright Exceptions on Fair Use.

Matthew Sag

Posts

My #IPSC slides – Copyright & Compulsory Licenses