Category Archives: Law and Policy

NAFTA Negotiations: Authors Alliance Joins Public Interest Groups in Support of Transparency and Balanced Copyright Policy

Posted August 18, 2017

Today, Authors Alliance joins with other public interest advocates such as Creative Commons, SPARC, Internet Archive, OpenMedia, and Public Knowledge to sign on to a statement in support of transparency and balanced copyright policy in the renegotiation of the North American Free Trade Agreement (NAFTA). The statement was sent to the trade ministries of Mexico, the U.S. and Canada, urging all three countries to make trade negotiation processes more transparent, inclusive, and accountable.

Closed-door trade agreements are not the right forum to create intellectual property policy, particularly when negotiations lack transparency. It is critically important that drafts of international agreements that address intellectual property issues be publicly available for comment so that authors and other stakeholders can weigh in on the proposed rules that will bind all member states. Moreover, such agreements are not flexible enough to account for rapid changes in technology.

Authors Alliance is particularly concerned that by shoehorning intellectual property issues in trade agreements without broad consultation, the resulting rules tend to favor longer copyright terms, increased enforcement measures, and harsh infringement penalties—without corresponding attention focused on appropriate limitations, such as robust fair use rights and other reasonable exceptions.

This imbalance does not serve the interest of authors and is out of step with our founding statement on Principles & Proposals for Copyright Reform. As both creators and users of content, authors depend upon balanced copyright policy that provides reasonable protection while not getting in the way of onward distribution and creation. Long copyright terms, for example, make it more likely that authors’ works will become unavailable or orphans. Lack of robust fair use exceptions, combined with harsh penalties, similarly make it more likely that authors’ works will go unused in subsequent works, limiting the original author’s reach and impeding the advancement of knowledge and culture. What’s more, users’ rights are authors’ rights. For example, authors rely on fair use in every phase of the creative process, and may need to circumvent digital rights management to create new works.

For these reasons, if NAFTA addresses intellectual property rights, “there must be active and enforceable mechanisms to protect exceptions and limitations regimes, fair use/fair dealing and the public domain, parties should resist extensions in copyright terms that punish new artists and creators, and there should be no increased criminalization for digital rights management circumvention.”

Further details can be found in the full text of the statement. Hover over the document below to view the statement in your browser, or download here.

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Notice and Takedown and Academic Digital Libraries

Posted August 8, 2017

photo by Redd Angelo | CC0

Prior to joining Authors Alliance as Executive Director earlier this year, Brianna Schofield was the Clinical Teaching Fellow at UC Berkeley Law’s Samuelson Clinic, where she co-authored an article with Jennifer M. Urban, Clinical Professor of Law and Director of the Samuelson Clinic at UC Berkeley School of Law, examining academic libraries’ experiences with notice and takedown. Takedown and Today’s Academic Digital Library has now been published by Ohio State University Moritz College of Law’s I/S Journal of Law and Policy. We share a summary of the article below, and invite readers who are interested in learning more to access the full article here.

In recent years, academic libraries and archives have increasingly used digital means to preserve materials and provide access to users, allowing them to serve more diverse, and much more far-flung, populations. For example, libraries and archives are increasingly digitizing collections with unique or rare material that otherwise has limited circulation in order to improve long-term preservation and expand access to cultural heritage. The growth of online scholarship repositories and sharing sites, where academic authors post papers for wide access, is another central development. The evolution and the dissemination of academic works from print collections to open digital forms is widely heralded as increasing access to academic knowledge and fueling research.

Academic libraries have emerged as key players in the move to open access and are rapidly developing platforms that provide digital access to scholarship. As libraries and archives increasingly move into the online open access space, they are thrust more directly into debates over the Digital Millennium Copyright Act (DMCA) section 512 notice and takedown regime than they have been in the past. Section 512’s safe harbor from copyright liability is aimed at online services that host material contributed by others; however, libraries did not often host material posted by others and were therefore unlikely to be eligible for this protection. Newer institutional open-access repositories, on the other hand, may hold many works placed there by third parties, usually authors. These author-directed postings to institutional repositories may put academic libraries into the role of host, thus bringing them under the aegis of the formal notice and takedown system created by the DMCA.

Using survey questions and interviews, Schofield and Urban examined academic libraries’ interactions with both DMCA and non-DMCA takedown notices. They found that academic libraries most commonly receive non-DMCA takedown requests that are based on non-copyright issues (such as privacy) or that target materials the library itself placed online. In general, libraries have well-developed norms and practices in place to manage these types of requests to remove material.

They also found, however, that formal DMCA notices directed to libraries have historically been rare, but that this may be changing as open-access repositories hosted by libraries grow. Library respondents worried that an increase in DMCA takedown requests could result in valuable scholarship being removed from online repositories, thus limiting libraries’ ability to fulfill their missions to preserve and disseminate knowledge. In tracing the recent experience of academic libraries that have received DMCA takedown notices targeting materials in open access repositories, Schofield and Urban found that libraries have not yet developed norms and practices for addressing these requests.

To help libraries effectively manage increased takedown requests while maintaining publishers’ ability to monitor content made available in online repositories, Schofield and Urban recommend that:

Academic libraries should continue to educate authors about author-friendly publishing practices, and authors should retain more control of their own works.
Publishers, authors, and academic libraries should take steps to make the terms of publication agreements transparent.
Academic libraries should continue to support—and authors should embrace—open access policies.
Academic libraries should consider developing shared norms and best practices for DMCA notice handling similar to those they have developed for non-DMCA requests.
Academic institutions should ensure that librarians receive any DMCA notices targeting library materials that are sent to DMCA agents in other departments, and that library-developed best practices are followed in handling these notices.
Publishers should develop and publicly communicate reasonable notice-sending policies.
Publishers should ensure that third-party rights enforcement organizations, if used, comply with publisher notice-sending policies.
Academic libraries should consider creating educational materials about the counter notice process and tools that make it easy for authors whose works are challenged to send counter notices if their content is inappropriately targeted for takedown.

For more information about Schofield and Urban’s findings and recommendations, we invite you to read Takedown and Today’s Academic Digital Library.

Authors Alliance Petitions to Renew Multimedia E-Book Exemption to Section 1201 of the DMCA

Posted August 1, 2017

photo by 422737 | CC0

While copyright law generally provides for exceptions like fair use that maintain our ability to criticize, comment on, and transform copyrighted works, some courts have held that these exceptions do not apply to the anti-circumvention provisions of Section 1201 of the Digital Millennium Copyright Act (DMCA), for the most part, do not recognize these kinds of exceptions. Evading digital rights management (DRM), even when done for otherwise lawful purposes—such as education and criticism—may be prohibited by law. However, every three years, the Librarian of Congress is empowered to approve discrete, temporary exemptions from the law in order to carve out space for non-infringing uses caught up in the DMCA’s broad sweep.

In February 2015, in response to the U.S. Copyright Office’s sixth triennial rulemaking session, Authors Alliance joined with author Bobette Buster, the American Association of University Professors, and counsel from legal clinics at the UC Irvine and the University of Colorado, Boulder to submit comments in support of exemptions that would allow authors to make use of DRM-protected multimedia content in e-books. That spring, our team attended hearings in Washington, DC to make a case for the exemptions, and in October 2015 the Copyright Office released its final rule, which includes an exemption for multimedia e-books offering film analysis.

That exemption allows e-book authors to circumvent digital locks on Blu-rays, DVD, and digitally transmitted video such as downloads and streaming for purposes of film analysis. The rule gives authors access to a wealth of high definition content—particularly, from Blu-ray—that they need in order to make fair uses in multimedia e-books.

Now, as we approach the seventh triennial rulemaking session in 2018, our team has submitted a petition to renew these exemptions. (Further details can be found in the full text of our petition. Hover over the document below to view the petition in your browser, or download here.) Authors Alliance believes that multimedia e-books are an important form of authorship and wants to see authors empowered to fully realize their promise. The freedom to author e-books that incorporate film for the purpose of analysis, consistent with the core tenets of the First Amendment and academic freedom, remains significant and important. We will continue to track the progress of the 2017-2018 rulemaking and provide updates as they become available.

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Authors Alliance Submits Comments in Support of Modernization Efforts at the U.S. Copyright Office

Posted July 17, 2017

Today, Authors Alliance submitted comments in response to the United States Copyright Office’s recent Notice of Proposed Rulemaking for Modernizing Copyright Recordation. By reducing the barriers to recording transfers of copyright ownership and submitting notices of termination, the proposed rules lay the foundation for improved copyright ownership records and make it easier for authors to exercise their termination rights.

We fully support these goals, which would not only help authors increase the compensation for and dissemination of their own works, but also make it easier for others to find accurate information about the rights in a given work and therefore reduce the number of works likely to become “orphans.” We also suggested that the Office consider:

providing better incentives for rights holders to record transfers of copyright ownership;
providing incentives to record transfers by operation of law;
strengthening incentives to keep ownership contact information accurate and up to date;
providing a mechanism to record diligent search data for orphan works;
reducing fees for electronic submission of documents; and
hiring technologists and economists to support modernization efforts.

Further details can be found in the full text of our comment. Hover over the document below to view the comment in your browser, or download here.

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LSU v Elsevier – Paying Twice (or More) for Scholarship?

Posted May 4, 2017

Post by David Hansen, Duke Libraries’ Director of Copyright of Scholarly Communication and a founding member of Authors Alliance. We are grateful for David’s permission to reprint his commentary on the recent LSU v. Elsevier lawsuit. This piece was originally posted to the Duke University Libraries’ Scholarly Communications blog.

When discussing the cost of library collection purchases, I sometimes try to make the point that universities are really paying for scholarly work twice–once by paying faculty salaries to research and write, and a second time when the library purchases those writings back from publishers.

After reading the complaint filed in the recent LSU v. Elsevier lawsuit, I wonder if we’re sometimes paying three or maybe four times. The lawsuit, apparently filed back in February but only just yesterday publicly reported, is based on a breach of contract claim. LSU alleges that Elsevier has shut off access to the LSU veterinary school even though Elsevier’s contract with LSU promises access to the whole LSU campus, and specifically includes access to the IP ranges representing the veterinary school.

LSU v. Elsevier

Krista Cox at ARL has written an excellent backgrounder on the lawsuit. Among the materials she links to is the complaint, which includes as Exhibit B this letter from LSU’s lawyers to Elsevier outlining LSU’s legal arguments.

The basics are that Elsevier had been selling LSU access to the same content through two different contracts – once through a contract with the library that covers the whole campus, and a second time through a contract specifically for the LSU veterinary school to provide access to just that unit. LSU, not wanting to pay twice for the same content, let the veterinary school contract expire. Veterinary school users then relied on access licensed by LSU Libraries, which was provided for under the main library contract with Elsevier that purported to cover the whole campus and that specifically identified IP ranges associated with the veterinary users. In response, Elsevier shut off access to the veterinary school IP ranges and insisted that LSU pay more for access for those users. After some failed negotiation, LSU filed the lawsuit.

In terms of legal issues, this looks like a straightforward breach of contract claim. In fact, I’m surprised that Elsevier’s lawyers let the dispute get to this point. Unless there is significant information not included in the complaint, I find it hard to put together a good defense. The contract is clear about access to the campus, including the IP range representing the veterinary school. It is also clear that the contract document was the “entire agreement” and not created on the condition that some other deal (e.g., the prior veterinary school-Elsevier contract) remain in place. There isn’t a lot of complicated legal analysis here—Elsevier promised to provide access, and now it is going back on that promise in an attempt to extract more money from LSU.

What this case means for the rest of us

It’s behavior like this that gives Elsevier a negative reputation among those who purchase content from the company. I don’t think many among us expect Elsevier to roll over in negotiations, but from what I can tell in this case the publisher, in my opinion, was unfair and coercive in its approach. It leveraged its significant market power to try to push LSU into purchasing access again that it has already paid for once before. Elsevier knows that no one else can provide access to all these titles, so what is LSU to do?

Beyond the aggressive negotiation tactics, what also worries me about this suit is the prospect that, like LSU, others of us work with schools, departments, projects, etc. that have been solicited by publishers such as Elsevier to purchase access that another entity on campus has already legitimately licensed for the whole university. In a large, decentralized organization like a major research university, there is bound to be some duplicative purchasing. If there are duplications and universities recognize and make corrections to eliminate them, will we too be subject to the same negotiation strategy? Would we be bound to continue paying twice? Would access for medical schools, veterinary schools, nursing schools, or law schools, be held hostage as well?

A Worrisome Harbinger of Changes in Copyright Law

Posted May 3, 2017

photo by Carol Highsmith | public domain

Pamela Samuelson, President, Authors Alliance

Note: This article was originally made available to subscribers of the Chronicle of Higher Education on April 23, 2017. The full text is reprinted below with permission.

With all the hoopla and dysfunction in the White House and Congress, you might think that the copyright bills pending before Congress do not need your attention. Think again. Momentum is building for three of these measures, and the impact of these bills on institutions of higher education will not be welcome.

The most likely to pass (and relatively soon) is H.R. 1695, The Register of Copyrights Selection and Accountability Act. It has bipartisan support from 32 House members, and the endorsement of 3 key members of the Senate Judiciary Committee. The bill calls for the Register of the U.S. Copyright Office (its CEO) to be a Presidential appointee for a 10-year term, subject to Senate confirmation. This bill has already been reported out of the House Judiciary Committee.

The Librarian of Congress has historically been the official who selected the Register of Copyrights. This made sense because the Copyright Office is a subdivision of the Library, and the Office supplies the Library with copies of registered works to add to its collection. The Register’s main job has been to ensure that the copyright registration system works well, so the general practice has been to promote someone with long experience in the Office to become Register. Because Librarian Carla Hayden has commenced a search to replace Maria Pallante, the Register who resigned (to avoid being demoted), Congress will have to move quickly on H.R. 1695, or Hayden may fill the position on her own—which would be good for universities.

H.R. 1695 finds support among industry insiders who are nervous that Hayden, who has made a career as a public librarian, would appoint as Pallante’s successor someone whose positions on copyright issues might be more closely aligned with the interests of libraries and the public than with interests of those who commercially exploit copyrights and who have long had considerable influence on the Office’s policy prescriptions.

The ostensible reason to elevate the Register as a Presidential appointee is the much greater significance of copyright in the U.S. and global economies today. As a Presidential appointee, the Register would be able to speak with greater authority in advising the President on key copyright policy matters, just as the Presidentially appointed Commissioner of the U.S. Patent and Trademark Office already does.

So why should universities worry about H.R. 1695?

If President Trump appoints the Register, this will further politicize copyright law. Until now, professional competence and deep knowledge of copyright and of the Office’s duties were the primary qualifications for the Register’s job. Since copyright industry groups will almost certainly have more influence with the President and members of Congress than universities do, H.R. 1695, if enacted, seems likely to favor copyright industry interests over university interests.

A second bill worth watching is H.R. 890, the Copyright Office for the Digital Economy Act. Like H.R. 1695, it calls for the Register to be a presidential appointee. It would, however, go farther by removing Copyright Office from the Library of Congress’ aegis and making it into an independent Congressional agency.

Even during Pallante’s tenure, tension existed between the Library and the Office over the level of financial support that the Library provided to enable the Office to upgrade its technology infrastructure. As an independent agency, the Office would be free from the Library’s control.

Under this law, the Office also would be free to make recommendations to Congress without any oversight, consultation, or review by other federal agencies. Universities may consequently lose opportunities they now have to appeal to executive agencies to influence the Office on policy matters.

Further down the road, but nevertheless building up steam, is a legislative proposal to create a small claims tribunal within the Copyright Office to adjudicate infringement claims valued at $30,000 or less. H.R. 5757, the Copyright Alternative in Small Claims Enforcement (CASE) Act of 2016 has not been re-introduced in the 115^th Congress. But Rep. Robert Goodlatte, Republican of Virginia, announced earlier this year that the small claims proposal was a key part of the copyright reform agenda he expects to pursue in this session of Congress.

One of the two key drivers of this bill is the desire of entertainment-industry companies to have a low-cost way to litigate claims against peer-to-peer file-sharers and other Internet users who “pirate” their works (including students at colleges and universities). The other main driver has been groups of photographers and graphic artists whose works are routinely infringed, often in online environments. The high cost of federal court litigation makes it infeasible for them to vindicate their rights.

If this legislation was carefully designed to give these copyright owners a low-cost way to get reasonable compensation for wrongs done to them, that would be one thing. But the bill has some problematic features, including the creation of two new sets of statutory damages.

One would benefit copyright owners who register copyright claims pre-infringement (as entertainment industry firms typically do). For these owners, a small claim could yield a tribunal award up to $15,000 per infringed work and up to $30,000 total. This is worrisomely high given that the challenged use need not have caused any harm to the copyright owner.

A second would be available to unregistered copyright owners. A small claim could yield up to $7500 per infringed work and up to $15,000 total per case, even if an infringement caused little or no actual harm.

The CASE Act also raises due process concerns. Although someone notified of a small claim can opt-out of the proceeding within 30 days, unrepresented recipients of claim letters may ignore them. Non-response will result in a default judgment, which the copyright owner can take to a federal court to get an order requiring payment.

Should universities be concerned about this? The short answer is yes. Cambridge University Press (CUP) may have had little success so far in the Georgia State electronic course reserve case, but suppose it learns that a professor has uploaded to a course website a chapter from a book published by CUP. CUP is unlikely to bring a federal lawsuit against the professor (or her university). But a small claim against her (or her institution) would be cost-effective and much faster. The Copyright Office tribunal might well be receptive to CUP’s claim. If one claim succeeds, CUP would have reason to bring others.

This is only one example of the many ways in which universities, faculty, and students might find themselves subject to new rounds of copyright claims. Copyright Office tribunals may not be as receptive to educational fair use defenses as federal courts.

These bills are a worrisome harbinger of what lies ahead for institutions of higher education on copyright policy issues. As with so many other issues currently facing this country, awareness and vigilance must be watchwords of the day.

Authors Alliance Submits Comments on Moral Rights to the U.S. Copyright Office

Posted March 30, 2017

“Author from BL Harley 4425, f. 133” by Guillaume de Lorris and Jean de Meun is licensed under PDM 1.0

Today, Authors Alliance submitted comments in response to the U.S. Copyright Office’s study of moral rights. We support creators’ rights to integrity and attribution (subject to some limitations and exceptions that protect downstream creative reuse), and we believe that these non-economic authorial rights should be formally recognized in U.S. copyright law—as they are in many other countries. We also encourage the Copyright Office to consider recognizing other non-economic author rights, namely, the right to revive one’s work if it is no longer available commercially and the right to revise one’s work over time.

Hover over the document below to view in your browser, or download here. We will continue our series of posts on moral rights in the coming weeks and will keep our readers up to date on developments at the Copyright Office.

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Authors Alliance Supports Federal Funding for National Endowments

Posted March 16, 2017

photo by ninocare | CC0

When Authors Alliance launched in 2014, we announced that our mission would be “to further the public interest in facilitating widespread access to works of authorship by assisting and representing authors who want to disseminate knowledge and products of the imagination broadly.”

As an organization that advocates for the rights of authors and creators, we are shocked and saddened by the news that President Trump’s proposed federal budget for 2018, released earlier today, calls for a total elimination of the National Endowments for the Arts and Humanities. Although their share of the budget is vanishingly small, both programs support thousands of art, community, and cultural projects in all 50 states, and in every congressional district. The NEA in particular provides grants to support libraries, up-and-coming authors, new work, and small presses—all crucial to members of our creative community and to the overall health and well-being of a free and democratic society. The proposed cuts to these and other federal programs would hurt independent authors, creators, and the academic community, and impede the progress of the arts and sciences. Especially hard-hit will be thousands of creators in the heartland—the Midwest and the South—who have depended on these modest subsidies to enrich the cultural environment of their locales and enable them to sustain their creative work.

When the NEA and NEH were created by President Lyndon B. Johnson in 1965, the Act establishing the programs read in part: “The practice of art and the study of the humanities require constant dedication and devotion. While no government can call a great artist or scholar into existence, it is necessary and appropriate for the Federal Government to help create and sustain not only a climate encouraging freedom of thought, imagination, and inquiry but also the material conditions facilitating the release of this creative talent.”

Financial backing for cultural endeavors is often tenuous at best, but never before have the core assumptions about the inherent worth of the arts and humanities come under such vicious attack. We encourage our members and allies to resist this assault on the fundamental values that encourage and celebrate freedom of expression.

Can Fair Uses Be Made of Copyrighted Works for Online Courses?

Posted February 23, 2017

The following is a Fair Use Week guest post by Authors Alliance President Pamela Samuelson.

Faculty members who assign a few scholarly book chapters to their students for nonprofit educational purposes should be able to rely on fair use when posting them on course websites, according to the brief Authors Alliance filed in support of Georgia State University’s (GSU’s) fair use defense in the copyright lawsuit brought by Cambridge University Press (CUP).

GSU’s fair use defense was bolstered by various limits it put on the posting of copyrighted book chapters. Faculty members had to fill out fair use checklists, taking into consideration, among other things, whether the amount assigned was reasonable in light of the pedagogical purpose they had in assigning the materials. Only enrolled students could access the in-copyright materials, they could access them only through password-protected course reserves, and this access was only authorized during the term the students were enrolled in that class or seminar. For the most part, only one chapter per work was assigned. GSU faculty mostly used the online course websites for supplemental materials, having assigned readings from textbooks and other materials that students had to buy. The overwhelming majority of the chapters at issue were scholarly works written by academic authors on specialized topics used for small courses or seminars from works published a decade or more before. All of these factors supported the trial court’s fair use ruling.

The Authors Alliance brief explained that academic author incentives to write scholarly book chapters would, contrary to CUP’s claim, not be harmed and might well be enhanced by such uses of the chapters for GSU classes. Academic authors generally write scholarly book chapters to share the knowledge and insights they have attained with others and hope that publishing the chapters will enhance their reputations for contributions the authors made to their fields. In addition, publishers’ incentives to continue to publish scholarly books should not be harmed by the limited uses GSU faculty and students were making of the book chapters because publishers get the chapters for free and expect to derive revenues largely from sales of books.

The fair use calculus changes if course websites hosting such materials are open to the general public, if multiple chapters from the same book are utilized in online courses, if the chapters are from textbooks relevant to especially large enrollment classes, and if the online course is part of a for-profit enterprise.

This is not to say that such uses could not be fair, but faculty members would be well-advised to be more cautious in posting in-copyright materials, such as book chapters, on course websites under these circumstances.

Fortunately, the proliferation of scholarly articles and book chapters on pre-print servers in various fields, the adoption of open access policies by universities, leading foundations, and government granting agencies, and the greater willingness of publishers to agree to nonprofit educational uses or open access licenses means that there are many scholarly works available to be used for online courses these days. It is unfortunate for authors who assigned copyrights in book chapters or journal articles back in the days when pre-print servers and open access policies were not available that their works will be less widely read than they would wish, but it may be worth asking publishers to be willing to agree to at least limited nonprofit educational uses such as those being made by GSU faculty and students.

That being said, CUP has filed an appeal of the trial court’s findings of fact and conclusions of law that all but a few of the challenged GSU online course reserves uses were fair. Until the appellate court ruling comes down, one cannot be sure that GSU’s uses are fair. Still, the appellate court upheld much of what the trial court held about fair use the last time CUP ruled, and sent the case back for further proceedings under a somewhat revised framework that the appellate court spelled out. Because the trial court carefully followed that revised framework and made findings in line with the appellate court’s guidance, I am cautiously optimistic that the court of appeals will affirm.

For further reading on fair use, refer to the Fair Use FAQ on the Authors Alliance Resources page.

First Sale, Fair Use, and Digital Downloads:
Capitol Records v. ReDigi

Posted February 22, 2017

In honor of Fair Use Week, we are delighted to feature this guest blog post from NYU Technology Law & Policy Clinic students Cassie Deskus and Kristen Iglesias discussing the role of fair use in the ReDigi case.

The Second Circuit will soon hear arguments in Capitol Records v. ReDigi, a case that will determine if and when consumers will be able to resell lawfully owned digital media. ReDigi provided an online marketplace for reselling music purchased from iTunes. ReDigi’s software allowed users to transfer music from their computer to ReDigi’s cloud servers, where it was offered for sale. Upon a subsequent sale, the software transferred the file to the buyer’s computer. The transfer process attempted to avoid copyright issues by employing strong verification safeguards and ensuring that there was only ever one full copy of the song in existence at any given time.

If ReDigi had been in the business of reselling physical CDs or books, resale would have been an uncontroversial application of first sale—a doctrine which permits the owner of any lawfully owned copy to dispose of that copy without restriction. The District Court, however, held that each song transfer was an unlawful reproduction, effectively preventing the owner of a digital work from reselling it. Unless the opinion is reversed, the only way consumers will ever be able to resell their digital music or books is to sell their entire digital device. In other words, to resell a $0.99 eBook you finished reading years ago, you’d have to sell your entire tablet and all of its contents!

This should be concerning to all creators of digital works. Without lawful resale, the “secondary markets” we enjoy in the physical sphere–libraries, used bookstores, garage sales, and even donations–cease to exist in the digital sphere. Not only will authors be unable to reach the same listeners and readers via digital publication that they might through analog publication, but those same listeners and readers won’t be able to easily share the digital works that they love.

That’s why the NYU Technology Law & Policy Clinic filed an amicus brief on behalf of over 20 copyright scholars, including several Authors Alliance members, arguing that any alleged unlawful reproductions are covered by either first sale or fair use.

As many Authors Alliance members know, the first factor of fair use is “the purpose and character of the use.” We argued that exercising a copy owner’s first sale rights, which have been recognized by courts and Congress for over one hundred years, is about as fair a purpose as can be. The public benefits resulting from digital secondary markets also favor this interpretation. The fact that ReDigi was a commercial enterprise does not change this outcome—indeed, many commercial uses of digital copyrighted works have been held to be fair use. ReDigi’s platform parallels secondary markets that have always existed in the physical realm; such markets are a testament to copyright law’s tolerance for, and accommodation of, robust resale rights. We hope that the Second Circuit reverses the lower court and preserves digital first sale, especially given the strong fair use arguments favoring ReDigi. If you’d like to read the rest of our argument, the entire brief is available here.