LibraryLaw Blog

How a watch manufacturer could make the use of foreign manuscripts and artwork a copyright violation

(by Peter Hirtle)

One wouldn’t normally expect a lawsuit between a watch manufacturer (Omega) and a big-box retailer (COSTCO) about the scope of “gray-market” sales of manufactured goods to have much of an impact on libraries and archives, but the upcoming Supreme Court case of Costco v. Omega is the exception.  At stake are some of the core activities of libraries and archives. 

The case centers on the “first sale” doctrine in copyright law codified in Section 109: the idea that once a copyright owner has sold a work, its ability to control further distributions and uses of that work end.  In the Appeals Court decision now before the Supreme Court, the court found that works made and sold overseas did not have 109 protections.  As Kevin Smith noted in an earlier posting on the case, if 109 does not apply to books manufactured abroad, it raises the issue of whether libraries can legally lend foreign items.

The threat that the Appeals Court decision poses to traditional library lending, according to Brandon Butler of ARL, led the Library Copyright Alliance to file an amicus brief that argues that right of libraries to lend foreign material should be protected.  For similar reasons, several library associations joined the amicus brief authored by EFF and summarized here. 

Unfortunately, the excellent LCA brief by Jonathan Band doesn’t go far enough.  It is focused on library lending.  And it notes that Section 602(a)(3)(c) of the Copyright Act does allow a library to import up to 5 copies of a foreign work “for its library lending or archival purposes,” activities that would be unaffected by a decision in this case (though Band has identified a neat little technicality of concern). 

Section 109 is about more than just the lending of copyrighted materials, however.  Section 109(c) also authorizes the public display of a copyrighted work, “either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.”  In most archival repositories, foreign manuscripts are not lent to individuals, but rather they are allowed to look at them in a reading room.  Similarly, foreign art works legally acquired from individuals other than the copyright owner are publicly displayed on museum walls.  The decision of the Appeals Court that the phrase “lawfully made under this title” does not apply to foreign goods acquired from someone other than the copyright owner puts both of these practices in jeopardy.

Imagine the situation at a place like the Harry Ransom Center.  Because it acquired the Tom Stoppard Archives from Stoppard, the copyright owner, it would still be able to use Section 109 to display Stoppard’s own material from the collection.  It would not, however, be able to use Section 109 to show to users any 3rd party copyrighted material created abroad and included in the collection.   Nor would it be able to use Section 109 to put non-Stoppard-created material on exhibit.  It might find itself in a similar situation to the Irish National Library, which had to secure a special act of Parliament to exhibit physical copies of some James Joyce manuscripts (as I discuss on p. 72 of Copyright and Cultural Institutions).

The situation for archives isn’t entirely dire if the decision is upheld.  A repository could still develop a fair use rationale for the public use of foreign manuscripts.  Alternatively, if the LCA’s request that library lending be acknowledged in a decision is accepted, an archives could argue that it is “lending” a manuscript to a patron in a reading room, even if the work is not allowed to leave the room.  It would be much harder, however, for a library or museum to argue that public exhibition is a fair use.  We might not be able to display publicly foreign works without the permission of the copyright owner.

Big thanks, therefore, to the library associations for speaking out on the need to have first-sale apply to items purchased abroad as well as in the U.S.  This is a case that we will all follow closely.

(Illustration: “Programme" of Arcadia from the premiere production at the National Theatre, linked from http://www.hrc.utexas.edu/ransomedition/2008/fall/stoppard.html)

C&CI Update: Legal Action Against a Cultural Institution

(by Peter Hirtle)

On p. 195 of Copyright & Cultural Institutions (C&CI), I noted that “Court cases involving copyright infringement by cultural heritage institutions are rare.”  Thanks to a blog posting at Clancco.com, I am sorry to report that another has been added to the list. 

A professional photographer, Anne Pearse-Hocker, is suing a production company, Firelight Media, for copyright infringement for using three of her photographs in its documentary, We Shall Remain: Wounded Knee.  A copy of the complaint is linked from the Clancco.com posting.  She is also suing the Smithsonian Institution for copyright infringement and breach of contract because the National Museum of the American Indian made copies of the photographs for Firelight Media, seemingly in violation of the Deed of Gift that Pearse-Hocker signed when she gave the negatives to the museum.  I have secured a copy of that complaint from PACER and posted it to SCRIBD here (and below). 

It is always dangerous to draw conclusions from just one side of an argument; I am looking forward to reading the Smithsonian’s response.  Nevertheless, the document reveals the kind of misunderstandings that can result when repositories get into the permissions business. 

To me, the most troubling portion of the document is Exhibit D, the museum’s permission form, which states that “Permission is granted for the use of the following imagery, worldwide, all media rights for the life of the project.”  Firelight is then charged $150 in permission fees for the use of the three listed images.

If I was Firelight, I would assume that I was in the clear; I had worldwide rights.  What the form does not make clear is that the permission derives from the Smithsonian’s rights as the owner of the physical negatives.  Only in the small print on the back of the form, in item 7, does one learn that this permission only covers the rights the Smithsonian has (without specifying what those are), and does not encompass other rights.  But I can well imagine that a user would see “worldwide permission” and assume everything is covered.  The case is a strong reminder that when making reproductions for patrons and granting permissions, repositories need to be crystal-clear about what they are doing.  In many ways, I wish we could come up with a word other than “permissions,” which is so closely connected to copyright, when it is physical ownership that is in play.

I also wonder how much the desire to run a photo reproduction permissions business and generate some revenue may have contributed to the museum’s seemingly sloppy practice.  Regardless of how the case turns out, the legal process is going to prove to be expensive, and if the Smithsonian should lose, it could face up to $150,000 in statutory damages per image.  $50 per image in licensing revenue hardly seems worth it if the desire to generate revenue led to the mistakes that appear to have been made. 

This case should be interesting to follow – if it is not settled out of court.  

PearseHocker v US 00269

How much will the Google subscription database cost?

Two efforts to get the following blurb into the latest issue of Current Cites have failed for technical reasons, so I am going to go ahead and post it here:

Cairns, Michael.  A Database of Riches: Measuring the Options for Google’s Book Settlement Roll Out  s.l.:Information Media Partners, 22 April 2010. (http://www.scribd.com/full/30334705?access_key=key-23rh5w2lwcdmcmzph2k4). 

Everyone is eagerly anticipating a decision on whether the court will accept the proposed amended settlement of the suit brought by some authors and publishers against Google’s library program.  The recent confirmation of Judge Chin to the Court of Appeals may indicate that we will have to wait longer (though there is at least some speculation that he might seek permission to address this one last case).

In the absence of a decision, we can only guess what the final GBS database might look like.  In this new report, Michael Cairns, a former president of R.R. Bowker, a publishing consultant, and the author of an earlier study on how many orphan works there might be in the database, has turned his attention to the business models Google might adopt.  It is the first public analysis of which I am aware that attempts to determine how much an institutional subscription might cost.

One can quibble with some of Cairn’s assumptions about the price of an average subscription or whether the level of market penetration he predicts would satisfy the settlement’s requirement of “the realization of broad access to the Books by the public, including institutions of higher education.” 

What surprised me the most was the the substantial amount of money that could be generated for the rights holders from these out-of-print titles.  Even at a relatively low subscription price and with modest market penetration, Cairns estimates that the database could generate $260 million a year, 70% of which, or $182 million, would go to the rights holders.  It is not enough to come close to justifying Google’s investment in the project, but for authors and publishers, it represents an enormous pot of “found money.”  The analysis also demonstrates that low subscription prices and broad market penetration may be more profitable than the normal library model of high subscription price and limited market penetration.

Crews: Important studies on ereserves

(posted by Peter Hirtle)

One of the more interesting recent conflicts in the Georgia ereserves case concerns an expert report on ereserves prepared by Kenneth Crews of Columbia for the defendants.  The plaintiffs tried to stop the report from being entered into the trial, but the judge allowed it.  The plaintiffs then filed their responses to the expert report and Crews has responded to them. 

I had been hoping that the expert report might show up on the Justia web site for the case or in the RECAP files, but it hasn’t.  I therefore got a copy of the report and its appendices from PACER and have posted them at Scribd.  The files consist of the full report and five appendices:

• Crews’s cv
• The 1976 Classroom guidelines
• The repudiated 1982 ALA Model Policy
• The unadopted 1996 CONFU Reserves Guidelines
• Copies of reserve policies from a large number of colleges and universities.

One can see why the plaintiffs wanted to keep the report out of the record.  It is essential reading for anyone interested in ereserves in libraries, and makes a very strong case that “the Georgia University Policy, as examined in this report, is consistent with the copyright law of the United States, and when followed by instructors, librarians, and others at the university, the policy will provide an effective means for promoting compliance with the law at the university” (p.68).

The most important part of the report are found in Part IV, where Crews describes the evolution and importance of reserves in libraries, and Part V, where he discusses the legal basis for ereserves.  In the latter section, he highlights the judiciary’s evolving understanding of fair use.  The courts, he suggests, have abandoned an earlier formulaic approach to fair use and have moved to a more flexible interpretation of the law.  Along the way, he demolishes certain assumptions that have been too-easily accepted by some librarians, such as the necessity of getting permission for subsequent use and the need to follow strict percentage guidelines when copying for reserves.  He also conducted a review of the reserve policies in use at schools around the nation (and in the process compiled a handy implicit checklist of issues for anyone developing a reserves policy to consider).

Crews’s response to the critics of the report discusses in detail the insufficiency of licensing as an alternative to an ereserves system based on fair use.  He also discusses why ereserves do not threaten the future of scholarly publishing.

There are of course areas that I wished he had emphasized more.  I think more attention could have been paid, for example, to the role of the library in supporting copying by students that, if done by the student, is likely legal.  If we focus on library reproduction, we make the library appear to be the publisher of anthologies and not the agent of students.  In addition, I don’t know enough about the law to know whether the inefficiency and unfairness of some licensing is a justification for limiting the scope of licensing.

Nevertheless, this documentation is an important contribution to the ereserve discussion and should be required reading even for those librarians not interested in the case but only in the topic.

UPDATE: Dan Lee pointed out to me that the PDF files downloaded from PACER do not seem to open in Acrobat Reader.  I use the free Foxit Reader, and it opens the downloaded files just fine.  So do two other free PDF readers I use, PDF-Xchange Viewer and GSview.  If anyone knows how to fix the PDFs so that they appear in Acrobat, I would love to hear about it.

GBS: A Legislative Solution?

(posted by Peter Hirtle)

Many of the critics of the proposed Google Book Settlement (GBS) have pointed out that it attempts to use the class action mechanism to effect what should be a legislative prerogative. James Grimmelmann’s amicus brief on behalf of the Institute for Information Law and Policy, for example, argues that the settlement “inappropriately attempts to solve a legislative problem through a class action settlement.”  Most recently, Pamela Samuelson has recently written that “The GBS settlement contravenes core rule of law principles of our society. To accomplish such an extraordinarily comprehensive restructuring of the future market for digitized books requires legislative action.”

I can’t speak to the issue of the harm that GBS may do to our legal system; I am an archivist, and my primary interest is in making sure that as much information is possible is publicly available.  If a legislative solution could do this, so much the better.  So the question is what would a legislative solution look like?  When one examines the alternatives, however, I don’t see much hope of agreement on an efficient solution.

Before we look at solutions, it is important to define the source of the problem.  GBS is a product of four fundamental flaws with our current copyright system: automatic copyright protection for every fixed creative work; the presumption that the grant monopoly rights to the copyright owner is total; the provision of unconscionably long copyright terms that have no empirical relationship with the incentive to create (as mandated by the Constitution); and draconian penalties if one should infringe. 

These four components of current copyright law – automatic protection, presumption of monopoly rights, long copyright terms, and draconian penalties – are deadly to any mass digitization project.  Because of them, most published items are still protected by copyright.  Furthermore, books cannot be digitized and made available without permission.  The transaction costs of identifying, locating, and securing permission to digitize works is incredibly high, and for a large percentage, no rights holder will ever be found.  Money spent on searching for these authors is just an additional tax on potential users of these works.  Yet if one risks making those works available without permission, one runs the risk of incurring ruinous damages.

A desirable legislative solution would both respect the interests of rights holders while at the same time limiting the transaction costs incurred by mass digitizers.  Those who have argued for a legislative alternative to GBS have not put forward draft legislation, but there are hints on what they would prefer in their writings.  The proposed solutions cover a wide spectrum of approaches.

At one extreme are the ideas put forward by Marybeth Peters in her testimony before Congress.  Peters notes that “the settlement proposed by the parties would encroach on responsibility for copyright policy that traditionally has been the domain of Congress.”  Specifically, she notes that the settlement in effect creates a compulsory license for Google, and that “compulsory licenses in the context of copyright law have traditionally been the domain of Congress.”  (Whether a license that has an opt-out provision is truly “compulsory” is an issue for a later day…)

Critics have long noted that the Copyright Office traditionally has protected the interests of copyright owners over the public.  Perhaps as a consequence, it has traditionally opposed compulsory licenses that diminish an author’s ability to control his or her work.  Peters did not assert that a legislated (as opposed to judicial) compulsory license would be appropriate to address the GBS problem.  At most, it is “an interesting proposition that might merit Congressional consideration” (emphasis added).  Instead, she seems to think that Google should be following the procedures recommended in the proposed legislation on orphan works.  Yet the orphan works solution, which requires a diligent search for a copyright owner, just exacerbates the high transaction costs associated with a mass digitization project.  As Georgia Harper has noted, the proposed bills on orphan works “conceive of orphans as adoptable on a case-by-case basis only, not at scale, with all the in-depth investigation that the analogy to adoption suggests. Such an approach seems to me to be unworkable even case-by-case, and … no legislative proposal will accommodate the scale of operation Google has undertaken.” 

Peters also goes out of her way “to underscore for the Committee that out-of-print works and orphan works are not coextensive.”  That means that if orphan works legislation were to pass, Google could make available the full text of those books whose rights holders cannot be found after a diligent search, but most out-of-print books would still be off-limits until permission had been secured.

In summary, if we can read between the lines of her testimony, Peters’s preferred legislative solution, would bend over backwards to protect the interest of rights holders.  It would do nothing to lower the transaction costs.  Google could, if it wanted, try to convince Congress (and the Copyright Office) that “a solution that is more like a compulsory license may make sense for those engaged in mass scanning,” but the Office’s traditional opposition to compulsory licenses stands.  I don’t see anything in Peters’s testimony that suggests a likely legislative solution that would solve the four problems facing mass digitization.

At the other end of possible legislative solutions is an idea argued by Larry Lessig and Chris Sprigman: adding formalities back into the copyright system.  Technology makes the idea of an affordable international copyright registry conceivable.  It would make it possible to identify, locate, and negotiate with those who are concerned about the rights in their work, and make accessible all the works of those who do not care (and hence don’t register) or who don’t know that they own rights.  This approach would seem to be the ideal method of both protecting the interests of rights holders and the general public, but the legislation introduced in 2004 to enact this idea went nowhere. 

Perhaps even more radical is the approach of Brewster Kahle.  There is, Kahle argues, an alternative to GBS: orphan works legislation.  But Kahle’s vision of orphan works is different than everyone else’s.  For Kahle, all out-of-print books are orphans.  “Remember,” he writes, “this is all about controlling the Orphans, or out-of-print works” (emphasis added).  Later in the same post he speaks of “out-of-print/Orphan works.”  In this regard, Kahle flies counter to the Orphan Works report and the legislation that he extols, both of which make it clear that an out-of-print work is not necessarily an orphan work.

If not existing orphan works legislation, what is Kahle’s vision of a legislative solution?  We have some hints:

Only if an owner comes forward and prove they own a work (with penalties for overreaching, and not just weak anyone-can-claim-anything-with-no-negative-consequences as it is proposed now)  then they can  negotiate for money.  Otherwise Orphan/Out-of-Print works can be used by anyone, say, for non-commercial use.   This is roughly how the Orphan Works legislation works…

Kahle’s vision is one where “out-of-print” equals “orphan,” and anyone is able to make non-commercial use of the work unless an owner comes forward.  It is an inspiring vision, but to suggest that this is “roughly how Orphan Works legislation” works is disingenuousness worthy of Sergey Brin himself.  Under the proposed legislation, orphan and out-of-print books could be used by anyone for any purpose – but only after a reasonable search for a copyright owner had been conducted.  Out-of-print but non-orphan books could not be used, even if the purpose was non-commercial.  No one other than Kahle has dreamed of a system where failure to maintain a work in print would limit one’s copyright monopoly.

Other legislative solutions are possible, though none seem likely. Sally McCausland, for example, in an absolutely top-notch paper entitled “Googling the Archives: Ideas from the Google Books Settlement on Solving Orphan Works Issues in Digital Access Projects,” suggests that extended collective licensing as practiced in some Nordic countries might be a legislative alternative to GBS.  Given the Copyright Office’s antipathy to compulsory licensing, however, and the absence of other legislatively-enacted collective licenses, this suggestion would take years to develop.

So right into the middle of the legislative spectrum between those who worry about the rights of rights holders and those who worry about users appears Google’s judicial settlement.  It gives rights owners the ability to opt-out, compensates those rights owners who want to stay in, and minimizes the cost of locating copyright owners.  It is not perfect, and Samuelson in particular has articulated a slew of ways to improve it.  But as far as a legislative solution goes, David Sohn at the Center for Democracy & Technology has still said it best:

In short, yes, Congress should have the last word. But in the meantime, the Google Books settlement offers the chance to expand public access and increase exposure for many millions of out-of-print works in ways that generally should benefit readers and authors alike.

Mostly bad news for educational fair use

(posted by Peter Hirtle)

Earlier this fall I wrote about what I called "the other coursepack case" (in Michigan, as opposed to the Georgia State case).  Partial summary judgment has been granted, and it is a mixed bag for educational fair use.

In the decision, the judge rejected all of the defenses that the defendant, Excel Copying, put forward.  First, the court rejected, as I suspected it would, the argument that the licenses secured by the University of Michigan library authorized the copying. 

It also rejected the stronger argument that Excel engaged in no direct infringing activity itself, since it was the students, and not Excel, that made the copies.  The court found that because Excel "is the source of the reproduction," it had the same liability as if it had made the reproductions.  Excel gathered the material, collated and numbered the copies, assisted students who were having trouble copying, and did everything except actually push the "start" button on the photocopy machine.  The court therefore concluded that Excel, and not the students, made the copies.  Furthermore, it found that lending the master copy of the course pack to the students violated the publishers' distribution right - even though there is no discussion in the opinion as to whether the master is itself a legal copy, and hence could be loaned under the first sale doctrine.

Lastly, the court completely rejected a fair use argument.  It accepted the reasoning of the majority in the Michigan Document Services (MDS) case that fair use was not applicable.  Because Excel is a commercial operation, the purpose of the copying was not educational.  As to the second factor, the court ignored the informational character of the readings, but said that since they were creative, it ruled against fair use.  ("The nature of the material is certainly creative, which militates against a finding of fair use.")  Of course, to be protected by copyright, a work must be creative.  If the court's reasoning were followed, the second factor must always weigh against fair use.  The court found that the third factor, the amount of the use, also weighed against the defendant, since the professors had selected the excerpts, which means that they must have substance.  Again, if one accepted this reasoning, it would be hard to know when an excerpt selected for a class could ever be a fair use.  Finally, on the fourth factor, the court found that because Excel does not pay licensing fees when its competitors do, the market for the copyrighted works is harmed.

I suppose that it should come as no surprise that in its fair use analysis, the court clung closely to the decision in MDS.  (It is also telling that the one commentator on MDS that it cited was Doug Lichtman of UCLA.  While I greatly enjoy his podcasts, he does seem to believe that if a use can be licensed, there should be no fair use.  Fair use should only apply in those situations, such as criticism or parody, when it is unlikely a license could be secured.) 

I was more surprised by the conclusion that because Excel enabled students to make copies, it was directly responsible for that copying.  To the eyes of this non-lawyer, this would seem to be a classic case of contributory, not direct, infringement. 

It makes me wonder as well about the potential liability of libraries.  It is common for libraries to receive from a faculty member a copy of a course pack and place it on reserve (much as faculty members provided copies of their course packs to Excel).  If a student then borrowed that course pack and copied it on a library photocopy machine, would the library be liable?  Section 108(f) of the Copyright Act protects libraries from charges of contributory infringement for copying done by patrons on library equipment, but could this decision be extended to suggest that libraries, just like Excel, have direct, not contributory, liability  for infringing copies made by students?  If so, the "safe harbor" of 108(f) would evaporate.  The court did concede that if a student secured a copy of a course pack from a friend "or other third party," brought it to a commercial copy shop, and made the copy, the copy shop may not be liable for copyright infringement.  Perhaps a library could be "a third party."

The potential good news for fair use in the decision rests more in what the court did not decide.  First, as with the MDS decision, by focusing on the commercial nature of Excel's copying, the court left open the question of the legality of similar copying conducted by a not-for-profit educational institution.  We will have to wait for a decision in the Georgia State case to see how that plays out.  Second, the court acknowledged MDS's contention that copying by students is problematic and may not be a fair use, but it chose not to address that issue as well.

All in all, this case seems to be one more rejection of the plain language of the fair use statute, which indicates that multiple copies for classroom use are not infringements of copyright. 

Can library management legally access employee's Facebook and Myspace pages?

A New Jersey jury recently found that a restaurant did not violate employee privacy or cause emotional distress by accessing an invitation-only Myspace page. The page served as a venting spot for employees.  The restaurant was, however, found to be in violation of federal and New Jersey laws prohibiting accessing the information without permission. The employer asked another employee for her password, and she testified that she thought she “would have gotten in some sort of trouble” if she refused to cooperate. Shortly thereafter, the company terminated plaintiffs based on their comments on the site and involvement in creating it. Pietrylo v. Hillstone Restaurant Group. 

Mr. Victor Schacter of Fenwick & West LLP writes in the Fenwick Employent Brief (Sept. 2009):

"This case highlights the challenges employers face with respect to employees’ blogs and social networking sites that contain work-related speech. While this decision does not restrict an employer’s right to monitor communications and information within its own computer networks, it demonstrates the risks of attempting to access an employee’s restricted online content without the employee’s authorization. Employers should consider implementing written policies that address employee work-related speech on social networking and other online sites to require that employees observe appropriate guidelines when referring to the company, its employees, services, and customers."

Orphan works and the Google Book Settlement

(posted by Peter Hirtle)

Lorcan Dempsey has an interesting blog posting about new publishing ventures in libraries.  He mentions in passing an article in the Economist discussing the Google Book Settlement that opens with an example of two "orphan works."  One is The Appalachian frontier: America's first surge westward by John Anthony Caruso; Lorcan found three editions of this in WorldCat.  The other work was Blunder out of China.  There are two works with that title in WorldCat: one by Geraldine Townsend Fitch and Theodore H. White published in 1946, and one by Walter Henry Judd published by GPO in 1947.

The inclusion of these two examples as "orphan works" in the Economist article illustrates a number of interesting points.  First, it shows how sloppy some people have been when they have referred to "orphan works" and the Google Book Settlement.  Neither of the titles that the Economist cites could be considered to be an "orphan work."  Second, it also points out that metadata problems aren't confined to Google, and how difficult it is to determine copyright status just based on electronic records.  Finally it is a good example of how the Google Book Settlement is the only way that the full text of most books can be made available.

If one checks the Copyright Office's database of registrations and renewals, there is no evidence that copyright in the 1959 edition of the Caruso book was renewed in its 28th year, which puts the text clearly in the public domain.  There is a copyright registration for the new matter added to the 2003 edition, and the claimant for that copyrighted matter is the University of Tennessee Press.  The press can be found with relative ease, so you can't claim that the 2003 edition is an orphan work.

The Blunder out of China example is somewhat more complicated since we don't know which edition Paul Courant Duguid had in his office when he was interviewed for the article.  The Economist doesn't help much.  It refers to the book as a "seminal text," but I wouldn't describe a pamphlet implying that Theodore H. White was a communist as fitting that description.  For copyright purposes, though, it doesn't matter which of the two books in WorldCat was digitized since they are not different works.  The Judd work is an offprint of the Congressional Record of 26 July 1947, where Judd reprinted Fitch's pamphlet in its entirety.  (The difference in page count between the two editions is due to the small type that the Congressional Record used for congressional "extensions of remarks.")  There is only one copyrighted work: Fitch's pamphlet.

So let's look at the metadata problems.  First, the WorldCat record gives Theodore H. White as an author.  Authorship can be important in determining copyright status.  White was not the author of the pamphlet, however, but rather the subject.  The pamphlet is an attack on his book, Thunder out of China, which was published in 1946.  Second, the WorldCat record gives a publication date of 1946.  Publication date can be important when checking renewal records.  I have not been able to confirm the date of publication of the pamphlet, but the Library of Congress record has [1947?].  Cornell's copy was received on 26 May 1947 according to a penciled notation in it, and the fact that a Congressman felt the pamphlet was important enough to include in its entirety in the Congressional Record in late July, 1947, suggests to me that the publication date was 1947, not 1946.  (If someone really cared about this, they might want to check Judd's files on the republication of the work found in his papers at the Minnesota Historical Society.)

Now on to the physical book.   A check of the volume shows that there is no copyright notice in the volume, which would have injected it into the public domain as soon as it was published.  Furthermore, there is no registration record for the pamphlet in either 1946, 1947, or 1948, nor is there a renewal record for it, further confirming that it entered the public domain when it was published.

The one last issue would be whether copyright could have been restored.  For that, we need to know where the item was published and the nationality and domicile of the author.  Geraldine Fitch was, I believe, an American married to a missionary and living in China at the time the pamphlet was printed, so there is the possibility that copyright in it could have been restored.  The pamphlet, though, states clearly that it was "printed in the United States," so copyright restoration is not an option.  This work, too, is in the public domain.

Why does this experiment suggest that the Google Book Settlement is needed?  Look at the effort it took to establish that these two works were in the public domain.  The same effort would have been required to determine that the books were still protected by copyright but out of print.  One would then have to make a reasonable effort to locate the copyright owner before the work could be considered to be an orphan work.  (Only Brewster Kahle, as far as I can tell, believes that an out-of-print work is an orphan work.)  The expense of doing this would be horrendous.

If we want to make the full-text of in-copyright but out of print books available without massively altering copyright law, there is only one cost-effective option: the settlement.

The other course pack case...

A lot of people have been paying attention to the pubishers' lawsuit against Georgia State's ereserve program.  (Kevin Smith had an especially thoughtful post on the suit earlier this summer.)  Though also featured on Stanford's Fair Use web site, a different case brought by publishers has not gathered the same attention.  Blackwell Publishing v Miller, however, has some interesting elements that may have implications for libraries.

The case concerns the photocopying practices of a copy shop in Michigan.  The important case of Princeton University Press v Michigan Document Services established that the commercial reproduction of articles in course packs was not a fair use, in spite of the underlying educational purpose.  (It did not speak to the noncommercial reproduction of course packs.)  Miller's photocopy service, Excel, found an interesting way around the MDS decision.  It solicited articles and readings from faculty members (much like the reserve operations in libraries), and then loaned those readings to students who then made reproductions of the readings on Excel's self-service photocopy machines.  A group of publishers brought suit against Miller and Excel in 2007.

Initially Susan Kornfield, one of lawyers who had argued extremely well in the MDS case, represented Miller and Excel.  The publishers' counsel included noted copyright specialist William S. Strong, the author of a popular handbook on copyright.  I was looking forward to a sophisticated battle about the limits of educational reproduction.

Unfortunately, after almost a year, Kornfield's firm dropped out of the case, apparently because of non-payment of fees by the defendant.  New counsel came on board, and motions have been filed for summary judgement.  A hearing is scheduled for the end of this month.

Excel asserts a number of defenses to the charges, but two in particular stand out.  The first, and one on which Excel spends a lot of time, is that any copying of published articles was authorized by the licenses for electronic content purchased by the Michigan library.  This argument seems like a loser to me.  I know from our own experience when trying to identify library licenses that would authorize the reproduction and sale of course packs, it was difficulty to find licenses that were explicit on the point.  (Nevertheless, we were able to save students $34,000 in permission fees during the first semester in which we applied library licenses to bookstore course packs.)  I don't think any of the licenses would have applied to a commercial vendor.  And of course course packs contain far more than is licensed by the library, including book chapters and other non-journal material.

The second argument is much more intriguing.  The publishers are claiming that Excel made the copies because they gathered the material from the faculty members, owned and serviced the photocopy machines, and provided instruction on their use.  The fact that it was actually the student who pushed the button is immaterial - as far as the publishers are concerned, Excel made the copies.  Excel claims, naturally enough, that it was the students, and not them, who made the copies. 

Copyright jurisprudence has developed a mechanism for dealing with this sort of situation.  It is the doctrine of indirect copyright infringement.  With indirect infringement, one does not make the infringing copies oneself, but rather induces or materially aids someone else to make copies.  It has been the basis for lawsuits against entities such as Napster and Grokster that may not have reproduced copyright content themselves, but contributed to others making reproductions. 

In this case, the publishers are not claiming that Excel engaged in indirect infringement, but rather direct infringement.  The problem with indirect infringement is that for it to occur, someone must be directly infringing the copyrights.  In the case of Miller, it is not clear that the faculty members, who provide the course packs to Excel, or the students, who actually make the copies, are infringing copyright.  Their use could be excused as a fair use (and some of the officials from the publishes who were deposed in the case may have indicated that student copying might be a fair use).  If there is no direct infringement by the students, then there can be no contributory infringement by Excel.  The publishers, therefore, have to argue that it is Excel that is making the reproductions, even though they it is not the one that pushes the "start" button.  In effect, the students are unpaid employees of the copy shop, rather than individuals exercising their fair use rights.

The case is interesting to me because it highlights competing visions of educational reproduction.  To the publishers, copy shops and library reserve operations are publishers.  If someone wanted to compile and sell an anthology of readings, we would expect them to secure permission from the copyright owners to do this.  This seems to be the way that publishers view us - as manufacturers and distributors of anthologies.  Libraries, however, do not see themselves as publishers, but rather as just facilitating the reproductions that are authorized under the law.  If it is ok for a student to have a copy of an article under fair use, then it really doesn't matter if the library helped some other student get a copy of that same article last year or even last semester. 

There are important issues at play in this case.  I hope that the disparity in the resources that the two parties can bring to bear on the matter doesn't lead to a poor judicial decision.

The undiscussed danger to libraries in the Google Books Settlement

There is an awful lot to read and digest in the hundreds of pages in the Google Books Settlement, and librarians have been at the forefront in identifying important issues.  Jonathan Band's excellent "Guides for the Perplexed" and the recent concern with privacy issues (see also EPIC's overview of the Settlement and privacy issues) are just two of the ways that librarians are striving to make a useful product even better.

Nevertheless, I have been surprised at the lack of discussion in the library community about what I feel is one of the most problematic features of the settlement: printing fees in the Public Access Service.  The Public Access Service is the free license that every public library can receive that allows that library to access the proposed books database from one of the library's computers.  Users are allowed to view the entire text of the book (unlike the Consumer Purchase model, which only allows you to see up to 20% of the book without paying), but they are not allowed to download the book.  Users can, however, print out pages from the book.

Here is the kicker: if the library charges a fee for printing (and how many libraries can allow users to print for free?), then they are required by Section 4.8(a)(ii) of the Agreement to charge users for the printing.  Google will collect the money on behalf of libraries and pass it on to the Registry.  Google has agreed to pay the cost of the printing for the first five years or $3 million, whichever comes first.

It is standard practice in many libraries to charge for the cost of paper and toner associated with printing from networked resources.  I cannot think of a single licensed resource, however, that also wants libraries to pay a use fee for that printing.  It is the equivalent of not only having users pay for costs of photocopying, but also having to send a royalty check to the Copyright Clearance Center for every page they print.  And note that there is no provision for fair use in this requirement - printing even one page will result in the payment of a royalty to the Books Rights Registry.

The privacy implications of this requirement are tremendous as well.  Google could require users to provide identification and a credit card to pay for the printing, with obvious implications for reading anonymously.  But if they were going to do this, the feature could have been implemented as part of the Consumer Purchase model; there would be no reason to limit it to Public Access Service subscriptions.  So that means that somehow the libraries are going to have be involved, tracking the amount of printing that is done by users, capturing payments, and passing the money along to Google to give to the Registry.

Section 4.8(a)(ii) marks a radical change in the relationship between libraries and rights holders.  Thanks to Section 108 of the Copyright Act, libraries are not responsible for royalties that may be required as a product of patron copying.  As long as the library posts the proper notices and has no knowledge that violations are occurring, it also has no liability for potentially infringing acts by users.  The Google Books Settlement overturns almost 75 years of law and practice and makes the library (or possibly Google, if it acts as an agent for the library) an active monitor of what its patrons choose to reproduce.  And if the Books Rights Registry can demand this, other vendors will start requiring it as well.  I imagine that in 10 years, every license agreement that libraries sign will stipulate a royalty for user printing, and mandatory licenses for photocopying may not be far behind.

Privacy, anti-trust, and orphan works are important issues.  But am I wrong in thinking that this innocuous-sounding little clause in the middle of the Agreement may do more to change the way libraries operate than other element of the Settlement?