Thursday, October 04, 2012

Education Law: Copyrights, Fair Use and Copying of Copyrighted Materials for Educational Use: Course Reserves via Digital Delivery of Supplemental Materials (Electronic Reserves, E-Reserves)

What is done is not always allowed, and what is allowed is not always done.

Which copyrighted materials -- and how much of any copyrighted publication -- can be copied and used freely as "fair use" in teaching? or research? 10%? 15%? What about digital copies? and what about their distribution?

A recent landmark case involves digital supplemental online reading materials (so-called "course reserves" viz. e-reserves) at Georgia State University. That case is Cambridge University Press v. Becker (Case No. 1:08-cv-01425, N.D. of Georgia, May 11, 2012), which according to Publishers Weekly has been appealed to the 11th Circuit Court of Appeals.

The Georgia State case should serve to better define what is allowed and what is not allowed in terms of digital fair use educational copying.

Indeed, we think the case may be reversed because the laws and precedents indicate that "individual" fair use copying for educational purposes in the physical classroom (or digital classroom) is seen much differently than "mass" copying or perhaps "crowd" e-reserves, which are essentially means of avoiding existing commercial licensing markets and/or permission channels.

Where does one draw the "fair use" line in a legal landscape that allows no "bright line" rules to be drawn? Looking at the Teach Act -- which specifically DOES NOT apply to "electronic reserves, coursepacks (electronic or paper) or interlibrary loan (ILL)" -- it nevertheless provides us with some broad copyright guidelines that can be extrapolated to the Georgia State case.

As written at Stanford University Libraries:
"Georgia Harper, an attorney with the University of Texas's library system has developed an excellent checklist to determine whether you are "ready to use the TEACH Act."
Take a look at the last link and look at the checklist. Harper writes (we have excerpted this material considerably from the original):
"Copyright law provides educators with a separate set of rights in addition to fair use, to display (show) and perform (show or play) others' works in the classroom. These rights are in Section 110(1) of the Copyright Act and apply to any work, regardless of the medium....

[A]n educator may show or perform any work related to the curriculum, regardless of the medium, face-to-face in the classroom - still images, music of every kind, even movies. There are no limits and no permission required. Under 110(2), however, even as revised and expanded, the same educator would have to pare down some of those materials to show them to distant students or make them available over the Internet to face-to-face students. The audiovisual works and dramatic musical works may only be shown as clips -- "reasonable and limited portions," the Act says.... 

[P]utting anything online requires making a copy of it. The TEACH Act authorizes us to digitize works for use in digital distance education, but only to the extent we are authorized to use those works in Section 110(2), and so long as they are not available digitally in a format free from technological protection.... 

Fair use ... remains important because the in-classroom activities (even if the classroom is virtual) the TEACH Act ... covers in class performances and displays, not, for example, digital delivery of supplemental reading, viewing, or listening materials. For those activities, as well as many others, we'll need to continue to rely on fair use. Remember, however, when relying on fair use, the fair use test is sensitive to harm to markets. This means that in general, where there is an established market for permissions, there will often be a narrower scope for fair use. In practical terms, this means that where it's easy to get permission, for example, to put text materials on reserve, our reliance on fair use should be limited....

Not everyone, nor every work, is covered. Section 110(2) only applies to accredited nonprofit educational institutions. The rights granted do not extend to the use of works primarily produced or marketed for in-class use in the digital distance education market; works the instructor knows or has reason to believe were not lawfully made or acquired; or textbooks, coursepacks and other materials typically purchased by students individually." [emphasis added by LawPundit]
So now, what about that recent landmark case involving Georgia State? In that case, Cambridge University Press v. Becker, which has been appealed to the 11th Circuit Court of Appeals, the court wrote:
"Almost all of the 75 excerpts at issue were assigned  as supplemental readings in graduate level or upper level undergraduate courses....

The excerpts were selected by 23 professors for 29 courses in three semesters in 2009.  On average these excerpts were 10.1% of the pages in the copyrighted books....

Between 2004 and early 2009 Georgia State had a copyright policy ... which described the prohibitions on copying in the Copyright Act and the basic elements of fair use. While the policy did not state what percentage of a copyrighted work could legitimately be copied, some professors who testified at trial believed (and, the Court infers, others did as well) that copying as much  as  20%  of  a  copyrighted  work  was  acceptable  as  fair  use....

On February 17, 2009 the Board of Regents introduced a new copyright policy for University System of Georgia schools, including Georgia State....

.... Professors ... were told that there was no across-the-board answer ... but that under fifteen percent would likely be safe and that under ten percent would be "really safe"....

The trial evidence showed that unlicensed copying of excerpts of copyrighted  books at colleges and universities is a widespread practice in the United States.... many schools' copyright policies allow more liberal unlicensed copying than does Georgia State's 2009 Copyright Policy....

Plaintiffs allege that Defendants have infringed their copyrights by allowing portions of Plaintiffs' works to be electronically distributed to users of Georgia State's electronic reserves system without obtaining permissions, in violation of the federal Copyright Act, 17 U.S.C. § 101 et seq....

Defendants contend that all of Plaintiffs' infringement claims are barred by the doctrine of fair use, pursuant to 17 U.S.C. § 107....

Defendants bear the burden of proving that each use was a fair use under the statute.

The Supreme Court's most recent and most important fair use opinion is Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)."
We are very philosophically sympathetic to the judge's holding in this case in favor of the defendants, i.e. against the publishers, but doubt on a legal basis that such wide-scale excerpting on a digital basis will be upheld upon appeal, involving as it does materials for which the mechanism for permissions exists. After all, "use" of educational  materials OFTEN does not involve use of an entire textbook, but only one or more chapters, or parts of those chapters, i.e. excerpts, so that viewing a book in terms of 10%, 15% or 20% used as "fair use" is not the correct standard. E-reserves serve as a means to get around buying copyrighted books and/or getting permissions and/or licenses and harm the copyright holders accordingly. When you use maybe one PAGE of a book, that might be fair use, but not whole chapters. In such a case, the law should probably require that you have to buy the book or get permission.

Take a look at the case of academic coursepacks which are NOT "free use" in terms of the copyright laws according to cases such as:
Basic Books Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991)
American Geophysical Union v. Texaco Inc., 60 F.3d 913, 919 (2nd Circ. 1994)
Princeton Univ. v. Michigan Document Servs., 99 F.3d 1381 (6th Circ. 1996).

By the way, the applicable "fair use" statute under American law provides under 17 USC § 107 - Limitations on exclusive rights: Fair use as follows:
"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

Andrew Albanese at Publishers Weekly in Publishers Appeal Ruling in GSU E-Reserves Case

Ten Percent Is Fair Use For Educational Institutions – Copyright Owners Disappointed,

The six million dollar fair use standard, Scholarly Communications @ Duke

Georgia State Fair Use Lawsuit Plaintiffs File Appeal, The Digital Reader, Chris Meadows

Judge Denies Publishers’ Request for Relief in Georgia State U. E-Reserves Case, The Ticker at The Chronicle of Higher Education

Copyright Court Decisions, Yi Hong Sim, Music Library Association

Memorandum from Randolph D. Moss, Acting Assistant Attorney General, to Andrew J. Pincus, General Counsel, Department of Commerce, on Whether Government Reproduction of Copyrighted Materials Invariably is a "Fair Use" under Section 107 of the Copyright Act of 1976

Patent Trial and Appeal Board (PTAB) Has Started its Work via a New IT System Called Patent Review Processing System (PRPS) for America Invents Act (AIA) Post Grant Proceedings: This is NOT a Court of Law

Fitch, Even, Tabin & Flannery have the story at the LexisNexis Patent Law Community in Trials Before the Patent Trial and Appeal Board of the USPTO about the newly created Patent Trial and Appeal Board (PTAB).

The PTAB as of September 16, 2012 replaces the Board of Patent Appeals and Interferences (BPAI) and will apply a new IT system called Patent Review Processing System (PRPS) for post grant proceedings under the "illfully"-named America Invents Act (AIA). Well, if AMERICA invents, is AMERICA profiting, or only a handful of the few in America?

USPTO Director Kappos has a blog Director's Forum: David Kappos' Public Blog cited at Patently-O for the inaugural operation of P-T-A-B (not P-TAB).

We have no idea whether the PTAB will make any positive contribution to the current patent chaos, but it must be noted that the predecessor BPAI was not -- and the new PTAB is not -- a court of law in the judicial branch of government, even though the board members are inappropriately called "judges". The PTAB is an administrative agency created by the legislature in the executive branch of government and the term "judge" should be forbidden to them. They are adminstrative agency public civil servants, not judges in the judiciary.

For numerous reasons, see e.g. our previous posting at LawPundit at Patent Wars, FTC, Federal Circuit and more, we are very much opposed to these kinds of extra-judicial legislative "boards" as usurpations of the U.S. Constitution and we vigorously oppose the steady infringement of the judicial branch by the other two branches of government, especially in the field of patents, where the game has become one of "insiders" benefitting "insiders", and since they all milk the "patent cow" for a living, the long-term effect has been and is a patent octopus which keeps growing new arms, such as the PTAB.

The upshot is that more and more patents are granted and more and more people are thus busy putting economies and societies into the shackles and chains of intellectual property monopolies, where NOTHING is free any more, in the sense of a democratic society, but EVERYTHING is owned and controlled by vested interests busy milking the patent cattle herd for the profit of the few. Well, we have had that before, all down the millennia and centuries, where what is produced by all benefits mostly only a few.

In the words of an infamous modern tyrant: "I've always wanted to own and control the primary technology in everything we do."
That is the name of the game. A few want to own and control the technology created by all. "Invention" has nothing to do with it. It is power and control.
And whoever owns and controls the technology owns and controls YOU.

And the USPTO is one of the major players in leading to that result.

Patent Wars Anticipated in a 2011 FTC Report as Federal Circuit Steadily Undermines Authority of the United States Supreme Court in Favor of Administrative Agencies via Decisions Contrary to the Constitution of the United States

The United States Federal Trade Commission (FTC) has a little-known viz. little-cited report titled The Evolving IP Martketplace: Aligning Patent Notice and Remedies with Competition which it issued already clear back in March 2011, but whose content is particularly relevant now in an American and world intellectual property scene dominated by monopolists, patent trolls, patent wars and a recalcitrant Court of Appeals for the Federal Circuit ("CAFC"):

The FTC report writes e.g.:
"Although all federal district courts must follow the injunction analysis provided by the Supreme Court in eBay [eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006)], the International Trade Commission ("ITC"), another venue in which patentees may litigate, does not. That discrepancy has generated some concern that the ITC may attract suits by patentees that are less likely to obtain injunctions in district court, potentially leading to hold-up and the resulting consumer harm described....

Use of the ITC as a venue for patent challenges has tripled in the last ten years. Sixty-five percent of those cases proceed simultaneously in federal district court. Expanded use of the ITC and the parallel proceedings in the district courts have led some commentators to raise concerns about inconsistent results in individual cases and incoherent development of patent policy. One area of particular interest is the different remedial standards applied in the ITC (exclusion orders) and district courts (injunctions). The ITC has held that it may not apply eBay’s equitable test when deciding whether to issue an exclusion order because Section 337 "represents a legislative modification of the traditional test in equity . . . [and] it is unnecessary to show irreparable harm to the patentee in the case of infringement by importation." The Federal Circuit affirmed the ITC’s conclusion that its remedies are governed by statute, and in particular the dictate that it "shall" enter exclusion orders, and not by equitable principles. Thus, unlike the situation in district court, a finding of infringement in the ITC leads to a nearly automatic exclusion order."
But of course, what the Federal Circuit has written there about equitable remedies is total legal nonsense from a Constitutional point of view. The legislature does not have the power to take rules on equitable remedies away from the courts, for the judicial power extends to all cases in law and equity.

All of the judges of the Federal Circuit should do something unusual and that is to take a look at Article III of the Constitution of the United States, which created the judicial branch of U.S. government, as follows:

"Section 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority...." [emphasis added by LawPundit]
Any Constitutionally inferior court such as the Federal Circuit that hands down decisions holding that some federal administrative agency is empowered by Congress to disregard decisions of the Supreme Court of the United States regarding equitable remedies has not done its legal homework. The Congress is not empowered to take those express judicial powers away from the nation's highest court or its inferior courts. Those powers are anchored specifically in the Constitution. Now THAT is originalism, right Justice Scalia?

What appears to have happened, such is the conclusion of this observer -- and this should be of considerable interest to the Justices on the United States Supreme Court -- is that the Federal Circuit Court in its modern-day decisions has been steadily eroding the authority of the nation's highest court in patent matters, principally using three methods:
  1. by virtually ignoring the precedents of Supreme Court decisions applicable to patents (see The Unteachables on the Federal Circuit re the Myriad case),
  2. by holding that certain decisions of administrative agencies are not appealable to courts, such as USPTO ex parte patentability review decisions, see CAFC Sides with USPTO on SNQ Debate, as if these were matters of fact, rather than law, and
  3. by evading the dictates of Supreme Court holdings via their own Federal Circuit decisions favorable to the legislative branch of government and to out-of-judiciary patent challenges brought before administrative bodies of the executive branch of government such as the ITC (International Trade Commission) -- a problem which is discussed at length in the FTC report quoted above.

Anyone who competently understands the separation of powers and the system of checks and balances that was at the root of the drafting of the Constitution of the United States knows that the judicial branch of government is there to keep a wary eye on the executive and legislative branches, rather than to act as their subservient handmaiden.

In the patent sphere, the judiciary has not been doing its job properly, and the patent chaos we have today is one result.

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