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P2P: Session 5 / First Sale & Library Exceptions
- 1. P2P COPYRIGHT NETWORK MAY2016 FIRST SALE EXCEPTION, LIBRARY EXCEPTIONS & A FRAMEWORK FOR ANALYZING A COPYRIGHT PROBLEM
- 2. First Sale Exception:The Doctrine of “Exhaustion” • Distribution right is exhausted after the first sale • Bobbs-Merrill case and then later codified in 17 USC 109 • The owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. • Other clauses in Section 109 allow libraries to lend sound recordings and computer software.
- 3. Mr. Kirtsaeng’s Difficulties Kirtsaengv. Wiley, 2013
- 4. Facts in Kirtsaenghttp://www.flickr.com/photos/30898003@N08/4258328532Photo by mksavage Attribution-NonCommercial-ShareAlike 2.0 Generic (CC BY-NC-SA 2.0) • Grad student from Thailand • Relatives bought textbooks overseas & Kirtsaeng resold in U.S. • Textbooks were intended for foreign market • Liable for copyright infringement—imported without rights holder’s permission
- 5. Issue: How doSection 602(a)(1) of the Copyright Act, which prohibits the importation of a work without the authority of the copyright’s owner, and Section 109(a) of the Copyright Act, which allows the owner of a copy “lawfully made under this title” to sell or otherwise dispose of the copy without the copyright owner’s permission, apply to a copy that was made and legally acquired abroad and then imported into the United States? (http://www.scotusblog.com/case- files/cases/kirtsaeng-v-john-wiley-sons-inc/) Supreme Court Granted Certiorari http://www.flickr.com/photos/22522518@N06/3001725500 Photo by Ancrew Deci Attribution-NonCommercial-ShareAlike 2.0 Generic (CC BY-NC-SA 2.0)
- 6. Section 602: Infringing Importationor Exportationhttp://www.flickr.com/photos/11831132@N00/134329177 Photo by Logan Ingalls Attribution 2.0 Generic (CC BY 2.0) • Importation of copyrighted work “without the authority of the owner…under this title…is an infringement.” • Circuits split on how to interpret • Libraries get limited special treatment under 602
- 7. Parallel Markets, QualityKing, Costco • Parallel markets have increased • Quality King: “round trip” sale & distribution limited by Section 109 • Costco—Supreme Court tied in 2010
- 8. Library Copyright AllianceAmicus Brief + Many Other Unlikely Allies • Wording & meaning of the statutes • Policy concerns • Other alternatives (none of them great) • Used bookstores • Ebay
- 9. OTHER LIBRARY EXCEPTIONS •Interlibrary loan • Reproductions for preservation and private study • A few other scattered exceptions, like one that allows a librarian to break DRM in order to evaluate buying certain products. Photo courtesy Harvard Library. Preservation Services. http://library.harvard.edu/preservation/conservation-treatment-preservation-advice
- 10. Interlibrary Loan • Alsospecially codified apart from first sale • Should not substitute for a subscription • Other quantities & maximums are not law • Suits against NLM and Texaco • Result: “gentlemen’s agreement + the CONTU guidelines • Often limited contractually for digital material
- 11. INTERLIBRARY LENDING: WHATDOES COPYRIGHT LAW SAY? NO SYSTEMATIC REPRODUCTION The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee— (1)is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group; or (2)engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d):Provided, That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.
- 12. Special Library Exceptionsfor Preservation and Replacement • Painfully codified in Section 108 • Efforts to revise and modernize have been unsuccessful • Sometimes really useful, such as for reproducing entire works for private study when a copy is not available at a reasonable price • But often, more confusing or restrictive • Fair use “savings clause” in Section 108 • Subject of Hathi Trust litigation Section 108 study group
- 13. SECTION 108 CONTROVERSIES Section108’s Fair Use Savings Clause • Nothing in this section…in any way affects the right of fair use as provided by section 107 • In the Hathi Trust litigation, plaintiffs attacked its meaning and intent. • Courts disagreed: “Citing the savings clause, the Second Circuit stated that "we do not construe § 108 as foreclosing our analysis of the Libraries' activities under fair use...." HathiTrust at *4, n. 4. Thus, the decision holds unambiguously that libraries may take full advantage of the fair use right.” Jonathan Band What Does the Hathitrust Decision Mean for Libraries http://www.llrx.com/features/hathitrust.htm 108 Revisions: A Threat or a Promise? • Section 108 study group • 3 years’ work • Issued report March 2008 • Maria Pallante declared intent to revise in 2012 • Many library groups opposed • Copyright Office symposium on revising Section 108 in 2013 • Karyn Temple-Claggett from the Copyright Office declared intent to revise in March 2016
- 14. • The library’scollection is open to the public OR available to outside researchers • Copying and distribution is NOT for any purpose of direct or indirect commercial advantage • Each instance of copying is isolated from and unrelated to any prior copying and includes no more than one copy, except three copies are allowed for preservation or replacement purposes. • The copy includes the “notice of copyright” appearing on the original, OR if no notice can be found on the original, a legend “stating that the work may be protected by copyright.” • The material copied and distributed is NOT a musical, sculptural, graphic, motion picture, or audiovisual work (but this last rule is waived for preservation and replacement copying) Section 108: The “Ground Rules” for Reproduction
- 15. Section 108: Reproductionby supervised copying at the patron’s request Articles and portions of a work • Meet the Ground Rules • The copy is made from the collection at the library from which the user requests it OR from another library’s collection such as through interlibrary loan • The copy becomes the user’s property • The library has no information that the copy would be used for other than private study, scholarship, or research • The library displays a copyright “warning” notice where orders are accepted and on order forms And in addition, if the copy is a large portion or entire work… • The library has determined through a reasonable investigation that a copy of the original copyrighted work cannot be obtained at a “fair price.”
- 16. • Meet theGround Rules • The three copies are solely for preservation and replacement, OR for deposit for research use in another qualifying library • The copyrighted work is currently in the collection of the copying library • “Digital” copies are not distributed or made available to the public outside of the “premises” of the library or archives Section 108: Copying unpublished works still in copyright for preservation & replacement
- 17. • Meet theGround Rules • The three copies are solely for replacement of a work that is “damaged, deteriorating, lost, or stolen, or if the existing format of the work has become obsolete.” • The library has determined through reasonable efforts that an unused replacement for the original work cannot be obtained at a “fair price.” • “Digital “copies are not distributed or made available to the public outside of the “premises” of the library or archives “in lawful possession of such copy.” • Note: A format is obsolete IF the machine or device that makes the work usable is “no longer manufactured” or “reasonably available in the commercial marketplace.” Section 108: Copying published works still in copyright for preservation & replacement
- 18. • Meet theGround Rules • The library concludes that the work is within the last 20 years of copyright protection • The work is copied, displayed, distributed, or performed for preservation, scholarship, or research Unless the library first determines by “reasonable investigation” that… • The work is subject to “normal commercial exploitation.” • A copy can be obtained at a “reasonable price.” • The owner provides “notice” that either of the previous conditions apply. Section 108: Copying Published Works With Copyright Expiring in 20 Years or Less
- 19. Want to LearnMore About Section 108? See these works by Dave Hansen, UNC Law Library • Section 108 Cases http://drhansen.web.unc.edu/library-copyright-materials/section- 108/section-108-cases/ • Copyright Reform Principles for Libraries, Archives, and Other Memory Institutions, Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2466091## (for the moment)
- 20. Five questions foranalyzing a copyright problem 1. Is the work covered by copyright? 2. Is there a specific exception in copyright law that covers my use? 3. Is there a license that covers my use? 4. Is my use covered by fair use? 5. Do I need permission from the copyright owner for my use?
- 21.
- 22. Can you getkicked off YouTube for spoiling Game of thrones?
Editor's Notes
- #5 Some text books had warning that they were only to be sold overseas “Authorized for sale in Europe, Asia, Africa, and he Middle East only…importation without the Publisher’s authorization is illegal…” In addition, and paradoxically, some books had warning that reproduction was subject to US Copyright Law Kirtsaeng’s defense—first sale doctrine—but not allowed for it to b part of the jury instruction Found liable for copyright infringement—willful infringement—fined for each count Don’t have to prove actual damages Kirtsaeng couldn’t pay, so Wiley was allowed to seize his printer, computer, and
- #6 Kirtsaeng lost his appeal and a motion to have a panel of judges review, but Supreme Court will hear the case in the fall Primarily b/c there is a split in the way that 3 different appeals courts in 3 different circuits handle this issue.
- #7 What does “under this title” mean? 3 Circuits have taken different approaches Second Circuit (Kirtsaeng)—first sale never applies to copies manufactured overseas 9th Circuit—first sale applies to copies manufactured overseas, but only when there has been a first sale in the U.S. 3rd circuit—in dictum—signaled idea that first sale would trump 602 Libraries can:
- #8 Better methods of distribution and ordering b/c of internet Supreme Court decided Quality King in 1997 Goods were manufactured in the U.S. Typical Use of copyrighted labels, logos and so on Hair products had two different markets—U.S. goods were more expensive Sold goods overseas—resold overseas and then distributed more cheaply in the U.S. This was not copyright infringement b/c the first sale had exhausted the distribution right Costco—goods were manufactured abroad—but Supreme Court tied (Kagan recused herself) Lower court decision stood—first sale doesn’t apply to imported good manufactured abroad Likely to side with the Omega watch people In Costco and Quality King—ancillary materials were copyrighted Use of copyrights in logos, inserts, designs in order to continue to control distribution of main copy thru the copyright on the supplementary material Copyright issues easier to see in Kirtsaeng Concern about contraction of these markets, and resellers, Ebay, etc. have weighed in on this round of litigation, too. General concerns for the average person who may give away items, sell them at yard sales, etc. Will manufacturing move overseas in order to tie up markets
- #9 ALA, ARL, ACRL Given that most countries have IP treaties with us, lawfully made under this title can have an expansive meaning in this day and age Policy concerns—Problems with library lending and possibility of lending licenses Uncertainty—we don’t know how much of our collections was manufactured abroad Find this meaning—first sale applies to all copies reproduced and distributed with the authorization of the U.S. copyright holder Alternatives that LCA asked for if SC finds for Wiley Libraries can use the first sale defense with regard to foreign-manufactured copies in their collections The library exception in 602 applies to lending, not just export Hold that library lending is fair use
- #15 Obvious omission here is museums
- #17 “outside the premises of the library” language Section 108 framers intended this literally, I think But many commentators now arguing that authenticated users count as on the premises, even if not physically present
- #18 Sam premises of the library problem Fair price is not defined Obsolete—people wish this include VHS, but I don’t think it does.
- #19 Problem: oftencopyright term nor immediately obvious