In the past year courts have handed down dramatic decisions in a number of major cases across the nation. These decisions have changed the way we understand fair use, streaming media, archiving, and accessibility in libraries. Kevin Smith, Duke’s Director of Copyright and Scholarly Communication and William Cross, NCSU’s Director of the Copyright and Digital Scholarship Center, will lead a discussion about these cases and the far-reaching impact they will have on libraries and library services in the 21st century.

1. Four Cases.
Kevin Smith – Duke University
and
William Cross – North Carolina State University

2. Georgia State

 Georgia State University is sued by publishers for
not seeking © permission
 Sovereign Immunity = No damages
 Funded by CCC to force all libraries to pay
permission fees

3. Copyright Conventional
Wisdom

 Guidelines for Classroom Copying
 Coursepack cases
 Subsequent semester rule
 Permission fees as heart of publisher business

4. Copyright Myths

 Guidelines for Classroom Copying
 Coursepack cases
 Subsequent semester rule
 Permission fees as heart of publisher business

5. Fair Use Framework

Purpose and Character:
Strongly favors nonprofit, educational use
Nature of Original:
Favors use of non-fiction
Amount & Substantiality:
Favors use of 10%/one chapter
Market Harm:
Favors user unless “readily available” at a “reasonable” price in a
“convenient” format

6. Georgia State - Takeaways

 GSU wins on 70 of 75 items
 De Minimus Non Curat Lex
 Libraries are favored entities acting in good faith
But . . .
 Not binding: persuasive authority only
 Already being appealed

7. Author’s Guild v.
HathiTrust

 Hathi & 5 university
partners sued over
alleged infringement in
preservation and access
activities of Trust
 Ambiguous role of
orphan works

8. No fair use for you!

 AG claimed that § 108, library
copying for preservation and ILL,
foreclosed a fair use defense.
 Activities such as mirror sites, allowing access to
snippets or for print-disabled go beyond 108.
 Judge rejected this argument
 Sweeping victory on fair use for HathiTrust
 Implications for library digitization projects

9. Different from GSU

 In the HathiTrust case, judge said mass digitization
was transformative.
 Different purpose justified finding, in spite of exact
copying.
 Copying & distribution via HathiTrust clear fair use
where purpose was:
 Indexing
 Preservation
 Access to “snippets”
 Access for text-disabled

10. An easy case

 “I cannot imagine a definition of fair used that
would not encompass the transformative uses
made by the defendants and would require that I
terminate this invaluable contribution to the
progress of science and the cultivation of the arts
that at the same time effectuates the ideals of the
ADA.”
 Nevertheless, the Authors’ Guild is appealing
 Issue of access to orphan works was not decided!

11. AIME v. UCLA

 UCLA streaming AIME’s Shakespeare videos
without permission
 Litigation two-step leads to dismissal earlier this
year
 Order filed in November explaining the dismissal

12. Case Dismissed

 Standing – Plaintiff doesn’t own the content
 Sovereign Immunity – Like in Georgia State
 Qualified Immunity – Need constructive knowledge
that library actions are “clear violations of
established copyright law.”

13. Fair Use -
At Least ‘Ambiguous’

Purpose and Character:
Favors nonprofit, educational use
Nature of Original:
Creative but used educationally
Amount & Substantiality:
Entire works but “time shifting” like in Sony
Market Harm:
No harm because of analogy to classroom use

14. UCLA - Takeaways

 No final word on fair use and streaming – but
another good data point for fair use in
libraries
 Controlled by licensing
 “Qualified Immunity”

15. Kirtsaeng v. Wiley

 Can a student resell textbooks purchased abroad?
 Lower courts said no – “First Sale” applies only to
works manufactured in the US.
 “Lawfully made under this title” and the impact of the
manufacturing clause.
 Supreme Court split on similar issue two years ago;
heard this case on October 29.

16. Owners’ Rights Initiative

 Libraries partner with variety
of businesses that rely
on re-sale to defend first sale.
 Can I resell my Toyota?
 Asking Court to find that first sale applies to an
goods manufactured with authority of rights holder
(i.e., not pirated).
 Recognize changed situation due to international ©
treaties.

17. The stakes for libraries
 lending.
 First sale is cornerstone of library
 Do we know where our books are manufactured?
 Exceptions in manufacturing clause not clear or
comprehensive.
 Does importation for lending actually allow lending?
 Are foreign-made videos “library use only”?
 What about materials purchased domestically but made
elsewhere?
 Bad decision could be devastating.
 For libraries, students, resellers of all kinds.

18. Chrystal Ball time

 Court likely to hold for Wiley.
 Will probably add language to
protect libraries.
 Clarify that exceptions in
manufacturing clause allow lending.
 Invoke fair use.
 Probably will defer to Congress on
broader issue.
 Would leave students in a bad place

19. Join us for the next LMD webinar on
Embedded Librarianship

Presented by Dave Shumaker,
Clinical Associate Professor, School of
Library and Information Science, Catholic University of
America
January 23, 2013
2:00-3:00pm, Eastern
Stay tuned for more information