1. Issues in Book & Serials Acquisition
Lauren Schoenthaler
Senior University Counsel
Stanford University
November 4, 2011
(Fine print disclaimer: The views expressed in this presentation do not represent legal advice and do not represent the views of Stanford University.
The views expressed in this presentation are solely those of the author, especially as they relate to ABBA.)

2. Georgia State Litigation:
Setting the Stage
 Cambridge Press, Oxford U. Press & Sage Publications filed
suit on April 15, 2008, N.D. of Georgia
 Alleges “systemic, widespread and unauthorized copying
and distribution of a vast amount of copyrighted works[.]
 In 2008, Georgia State was on the far end of the continuum
-- where on one side are institutions that always seek
permission before putting things on electronic reserve and
on the other side are institutions that never seek
permission -- of almost never seeking permission.
 Paraphrase of Laura Gasaway, Dean of Academic Affairs, UNC, Chronicle of Higher Education,
May 12, 2008
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3. Since we last met
 About this time last year:
 The court had recently issued a ruling on cross-motions for
summary judgment; granted in part and denied in part
 In May 2011 the case went to trial
 The parties have now filed post-trial briefs with proposed
findings on the facts and law
 The world waits…..
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4. The Injunction Request
 The plaintiffs have requested the court to enjoin any
Georgia State faculty member from
 Posting or distributing copyrighted materials unless the
faculty member verifies that the use complies with
Agreement on Guidelines for Classroom Copying in Not-For-
Profit Educational Institutions with Respect to Books and
Periodicals, developed in 1978 AND
 The total cumulative works posted without permission do
not total more than 10% of all assigned reading for a
particular course.
 GSU must keep verifications for two years
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5. Refresher on the Fair Use Guidelines
 Brevity & spontaneity
 Brevity
 250 word poem
 2,500 word essay or story
 1,000 words of an excerpt
 Spontaneity
 Inspiration of teacher on spur of the moment
 The teacher does not have enough time to seek permission
 Cumulative Effect
 One copy per school
 One poem or essay, two excerpts or three graphs from one
work per term
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6. From 1976
 Fun Facts from 1976
 Apple founded
 Son of Sam begins killing spree
 ABBA is popular
 Average cost of new house $43,400
 Average cost of gallon of gas .59 cents
 Digital technology not yet in common use
 Instant licensing not yet available
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7. Maybe 1976 is not the best
judge of 2011
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8. Clarification to previous slide
 Not that there’s anything wrong with that
 Some of my best friends are in ABBA
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9. Accessioning Digital Materials
 Setting the Stage:
 “Stakeholders—from creators and distributors to scholars and librarians—all
started from the same point: fear of losses. Business fears loss of current and
future revenue; scientists fear loss of data crucial for the progress of science
and engineering; scholars and librarians fear loss of the cultural and historical
record.”
 Preserving our Digital Heritage, NDIIPP Report
 Why we Care
- The Baghdad Battery
- 250 BCE – 200 CE
- Review of 1,600 social science
research projects in 2008
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10. What we’re talking about
 Formally accessioning into a collection any data in a
digital format
 Culling from the Web
 Websites
 Newsletters
 Reports
 Archives collected/digitized by donors
 Special considerations for faculty
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11. Fair Use Accessioning Analysis
 Fair Use Defense
 Four Factors
1) Purpose and Character of the Use
 Commercial or educational
 TRANSFORMATIVE: Is the re-use of the material transforming it’s
original purpose to a new and different purpose?
2) Nature of Copyrighted Work
3) Portion of Work Taken
4) Effect on the Market Place
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12. Transformative in Action
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13. Culling Materials from the web
 Los Angles Times v. Free Republic, 54 USPQ2d 1453 (C.D.
Cal. 2000)
 Reproduction of news articles for commentary by Free
Republic users is not transformative and therefore not a fair
use.
 Righthaven, LLC v. Hoehn, (D. NV, 6/20/11)
 In dicta, court held that re-posting an article from a Las
Vegas newspaper to garner commentary was
transformative fair use
 One of six appellate cases pending
 October 19, 9th Cir. Denied emergency request from
Righthaven to stay order of $34,000 in costs to Hoehn
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14. Culling Materials from the Web
 Online Policy Group v. Deibold, Inc. 337 F. Supp. 2d 1195
(N.D. Cal. 2004)
 Making archive of company emails available to
demonstrate when company had knowledge of product
flaw is a transformative use
 The Swarthmore students who posted the emails had no
intent to profit from them
 Deibold itself had no intent to profit from them
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15. Words of Caution
 Licensing terms trump copyright
 Do not permanently accession if access is subject to a
temporary license
 Beware the accessioning of “hacked” documents
 Copyright law presumes lawfully acquired copy as the
starting point of the discussion
 Wikileaks
 Espionage Act
 Receipt of Stolen Federal Documents
 Protection of Covert Agents
 - First Amendment defense?
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16. Special Considerations for
Personal Archives
 Privacy Concerns
 Student Records are forever protected under FERPA
 PhD students have FERPA rights
 You must have written permission from the student to include
 Lifelong right
 Protected information
 General privacy concerns
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17. Questions?
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