via https://twitter.com/#!/GaviaLib/status/201697590692167682 "There was a trial a year ago, and then long silence from the court. Now we know why it was taking so long: the opinion is 350 pages. That number is a little misleading, in that over two thirds of the opinion are dedicated to a highly methodical copyright ownership, infringement, and fair use analysis of seventy-four separate claims of infringement, using standard templates and highly repetitive language. Having now dug through the details, I’d like to offer a few observations.""Other claims dropped out before the fair use stage because they were uploaded to the e-reserves system but never downloaded by students. The court dismisses these from the lawsuit as de minimis, explaining that these uses by the University, while technical implicating the copyright owners’ exclusive rights, don’t affect the incentives for authors to create. This puts more teeth in the de minimis doctrine in copyright: it goes beyond the view that de minimis means “not substantially similar.” It also strengthens the argument that “internal use” copies never used to reach an to an audience that reads them for their content don’t infringe. Think, for example, of the HathiTrust’s archive of scans from Google Books.""When the court did reach fair use, it held across the board that two of the four factors favored Georgia State. The purpose of the use, while not transformative, was nonetheless for highly favored educational purposes by a nonprofit institution. And the nature of the works was consistently informational.

On the third factor, the amount copied, the court repudiated the Classroom Guidlines, calling them “not compatible with the language and intent of § 107.” It noted that the numerical limits in the Guidelines are so stringent that not one of the excerpts at issue in the case would fit within them. It was particularly uninterested in the Guidelines’ position that copying not “be repeated with respect to the same item by the same teacher from term to term,” which the court described as “an impractical, unnecessary limitation.”""Instead, the court fashioned its own quantitative test. For books of nine or fewer chapters, the court set a threshold of 10% of the total page count; for books of ten chapters or more, the threshold was a single complete chapter. (The chapter-based rule creates an odd incentive for publishers to create books with a surfeit of tiny chapters.) Copying of any amount under this threshold, the court held, would be treated as “decidedly small.” In practical terms, this ended up being a one-sided bright-line rule: copying of less than 10% or one chapter always ended in a fair use win for Georgia State.""no digital license meant an instant win for Georgia State. The court repeatedly emphasized that students would not have bought the assigned books as a substitute for the excerpts posted on the e-reserve system.""Only in seven instances did Georgia State use more than 10% or one chapter of a book that was available for digital licensing. When this happened, the court took a more detailed look at the specifics of the book’s licensing market and the portion copied. Generally, this turned on whether the book made significant revenues via licensing: if so, the use was unfair. (In one instance, the court did a “heart of the work” analysis under factor three to find no fair use because the professor had assigned chapters that “essentially sum up the ideas in the book.”)""Thus, the operational bottom line for universities is that it’s likely to be fair use to assign less than 10% of a book, to assign larger portions of a book that is not available for digital licensing, or to assign larger portions of a book that is available for digital licensing but doesn’t make significant revenues through licensing. This third prong is almost never going to be something that professors or librarians can evaluate, so in practice, I expect to see fair-use e-reserves codes that treat under 10% as presumptively okay, and amounts over 10% but less than some ill-defined maximum as presumptively okay if it has been confirmed that a license to make digital copies of excerpts from the book is not available.""The most interesting issue open in the case is the scope of any possible injunction. Given that Georgia State won on sixty-nine out of seventy-four litigated claims, while the publishers won on only five, I expect that the any injunction will need to be rather narrow. But given how amenable the court’s proposed limits are to bright-line treatment, it is likely that the publishers will push to write them in to the injunction.""The big winner is CCC. It gains leverage against universities for coursepack and e-reserve copying with a bright-line rule, and it gains leverage against publishers who will be under much more pressure to participate in its full panoply of licenses."

"As James Grimmelmann noted at The Laboratorium, Chin also suggested that if settlement talks do not reach fruition and there was a return to litigation, the path would be clearly lit:
Judge Chin suggested that he saw the case, if it were to be litigated, in terms of fairly straightforward cross motions for summary judgment on whether snippet display is a fair use.
""It seems to me that the only benefit Google obtains from a new settlement is clean hands over the past claims of infringement for digitization, but if the only operation they conduct is snippet-view, there is not necessarily a requirement for all-party approval. One could well argue from Google’s perspective that they actually don’t want to establish a precedent for asking permission for a broad class of activities that have been held as Fair Use when they have been litigated. Regardless, the barrier of final class certification still resides in the settlement house."

"Turns out they do, and most of those offering advice don’t seem too concerned about taking the moral high ground – or even abiding by their university or library’s guidelines for sharing accounts:

Do what everybody I know who’s been in your position has done: get a friend who has access to a research library and its databases to share their log-in and password with you. I know I’ve helped a few people out in this way, and I’ve done it with a spring in my step and a song in my heart. Sure, it’s technically “wrong” but I’d argue that it’s more wrong to charge underemployed people money for access to scholarly resources.

I just ran into this, where my new school has some journal accesses but not many, and I crowdsourced it on facebook — some current Gradschooland students offered me their proxy server login, and another was already in the library and emailed me the pdf.

Everyone does it. Hell, I’ll give you MY login if you want

Virtually everyone I know who’s not employed by a top-tier R1 has a bootlegged EEBO account: through friends who are still grad students, advisors, or friends with cushier jobs.

Makes you wonder why we even bother with licensing agreements in the first place? As long as you can get it for free somewhere else that’s all that matters. Just how rampant is this practice? Wish I had a way to do an anonymous poll of faculty, grad students and alums to see how many think it’s all right to provide or take an account to give someone else free access to restricted resources. Based on this post – probably a lot more than we think. So much for setting good examples."

"Until recently we would use texts or data by reading, taking notes, making photocopies, and then writing down new insights. We would refer to the originals by citing them. A person making limited copies or taking notes (perhaps quoting the text) does not breach copyright because of the notion of “fair dealing”. Making copies of reasonable portions of a work is explicitly not a violation of copyright. If it were we wouldn’t be able to do any useful work at all.

Today, scholarship and research cannot effectively proceed via manual human processes. There is simply too much for us to handle. On the other hand we have excellent computer systems that can, to some extent at least, take these notes for us. Automated assistants that can read the text for us, that can do text mining, data aggregation and indexing allowing us to cope with the volume of information. As these tools improve we have an opportunity to radically increase the speed of the innovation cycle, using the human brain for what it is best at: insight and creative thinking; and using machines for what they are best at: indexing, checking, collecting."

""

"If the current law makes us criminals for wanting to own books, then the copyright holders should advocate for changing that law""3) Criminalizing an activity that enables the reader to read her own legimately purchased books engenders illwill toward the author and the publisher and in this market, ill will is something the publishing community can scarce afford."

"Fair Rights Management (FRM) is our work towards fair use in the digital world. We propose taking advantage of social networks and terms negotiations. FRM is also a semantic fair content distribution platform. The platform provides a reliable identity management system using FOAF, machine-readable digital licenses using Creative Commons RDF Vocabulary, and protection means for the content that is distributed."

"Nesson argues that it doesn't matter if Tenenbaum copied music; such noncommercial uses are presumptively "fair" and anyone seeking to squeeze file-swappers for statutory damages is entitled to precisely zero dollars."

"there is general agreement that Google gets a monopoly... at least on out-of-print books, which is the vast majority of books in libraries. (Not on public domain books, which is what the OCA digitizes, but anyone can digitize public domain books.) So although the libraries and their contents will still be there, and can be used in hard copy as they are today, no one but Google can digitize the in-copyright works without incurring liability. So "monopoly on online version of their contents" is a factual statement, if you understand that public domain is public domain."

"The Kindle itself does not violate any of the copyright holder’s bundle of rights. Instead, copyright holders can only argue that the Kindle enables the end user, readers like you and I, to violate the copyright holder’s right to public performances of their works. At best, Amazon would be vicariously/contributorily liable for the end users misuse of the Kindle TTS.""...the reader is sold her own set of rights with the book. In the case of physical books, she can resell the book, share it, or even scan it in and create a digital copy of the book. The ability to utilize software to read the book aloud in a private, single person performance, is not a) publication or b) a violation of the derivative copyright""Blind readers want the absolute right to read what book they want, when they want. One of my readers complains to me that she has to wait until the book shows up on a sight impaired reading website or has to find someone to help her strip the DRM or find a pirated book."

"If there’s a downside here, it is that the path Google has pursued here will not be easy for others to follow. Google’s scanning and display of excerpts of out-of-print books will rely not on fair use, but rather on what amounts to a broadly binding license derived from the class action settlement. ...any new would-be new entrant in this market would either have to seek out its own set of licenses with a vast number of authors and publishers, or proceed based on fair use and expose itself to the same kind of lawsuit that Google faced. Because Google did not litigate the fair use question through to the end, it didn’t blaze a fair use trail that others could follow. Naturally, that’s just fine with the publishing industry, which rejects the idea that what Google was doing could have qualified as fair use. But it creates a considerable challenge for anyone eyeing the creation of some type of new indexing, search, or analogous service."

"libraries everywhere have to make one fundamental decision without guidance from the courts: are electronic reserves more like coursepacks or more like print reserves?"

"Libraries have gotten the short end of the stick because their use of their own materials became commercialized through their partnership with Google. If instead libraries had managed to digitize the books on their own, the outcome would have likely have been entirely different (if any lawsuit had been brought, which might not have happened). I believe that libraries could be found to have a fair use case for digitizing their works for the purposes of searching, and could be allowed to use those digitized copies for the exceptions spelled out in section 108 of the copyright law (such as providing access to the sight impaired, or for replacement of deteriorated originals). Unfortunately, the concept of digitization of the contents of libraries has now been tainted with the air of commercialization and has earned the wrath of the publishers and authors. The Google/AAP settlement has created a mechanism that ignores the inherent rights of the libraries, but also makes it more difficult f

"The court also noted that consideration of fair use is necessary to make sure that content owners do not abuse the takedown process""Judge Fogel has put content owners on notice: ignore fair use at your peril!"

Does "a trend by publishers and ebook vendors to commoditize at an increasingly granular level -- e.g. from the book, towards the chapter, and perhaps even below that -- has any implications for the ability of libraries to continue providing Fair Use base

"if derivative works are subject to approval of copyright owners, that leads to a chilling effect on criticism.""Rowling’s refusal to release an ebook version of the “Harry Potter” series due to fear of piracy (among other reasons) lead to, you gues

MIT & Elseiver "The agreement allows the project to use up to three illustrations per journal article, and up to 100 words of text." "Why do I feel like we have just defined away our fair-dealing/fair use rights?"

" This immediately brings us to a kind of crossroads in technical, if not strictly legal, differences between publishing on the web and in the hard-copy world. While the superficial frontier style of legality online means that, for most practical purpose

"Three recent appellate decision concerning fair use should give educators and librarians greater confidentence and guidance."--Blanch v. Koons, Perfect10 v. Amazon.com, Vill Graham Archives v. Dorling Kindersley

" Q: Shouldn't Google be commended for helping to preserve library books?

A. The company is not preserving books. It is creating an archive for Google's own purposes."

"There was an interesting article today in the Washington Post about folks who have posted images on flickr and in blogs, only to discover their images co-opted for commercial use. (I don't know how long the article will be publicly available)"

Computer and Communications Industry Association "fair use ...[and library copyright exemptions] significantly contribute to the economic growth of the United States"