Category Archives: Issues

Kevin Smith on “Lessons from the ReDigi Decision”

Posted January 18, 2019

The following analysis by Kevin Smith, Dean of Libraries at the University of Kansas, originally appeared on In the Open on January 17 under a CC-BY license. We’re featuring it here to provide some context for the issues surrounding Controlled Digital Lending (CDL) in the wake of the recent decision in Capitol Records v. ReDigi. Authors Alliance’s statement in support of CDL can be read here.

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The decision announced last month in the ReDigi case, more properly known as Capitol Records v. ReDigi, Inc. was, in one sense, at least, not a big surprise. It was never very likely, given the trajectory of recent copyright jurisprudence, that the Second Circuit would uphold a digital first sale right, which is fundamentally what the case is about. The Court of Appeals upheld a lower court ruling that the doctrine of first sale is only an exception to the distribution right and, therefore, does not protect digital lending because, in that process, new copies of a work are always made. His reasoning pretty much closes the door on any form of digital first sale right, even of the “send and delete” variety that tries to protect against multiple copies of the work being transferred.

What is perhaps more surprising is that the 2nd Circuit also rejected a fair use defense for ReDigi’s system. Some were particularly surprised that fair use was treated so dismissively by Judge Pierre Leval, who is one of the most respected jurists in regard to fair use, and the author of Toward a Fair Use Standard, the article upon which the Supreme Court relied when it transformed fair use thinking in the Campbell v. Acuff-Rose case. For my part, however, I am inclined to be a little less surprised, and to still think that we can learn several things from this decision.

Authors Alliance Submits Comment to U.S. Copyright Office in Support of Registration Modernization

Posted January 17, 2019

Authors Alliance submitted comments in response to the United States Copyright Office’s Notification of Inquiry for Registration Modernization. The Office is building a modernized copyright registration system intended to improve user experience, increase Office efficiency, and decrease processing times. We have written previously about the benefits to authors and the public associated with a robust record of copyright registration, and our Copyright Fundamentals resource page has more information on how and why to register. Our comments therefore support the following proposals:

Make registration more affordable to all copyright owners by considering alternative methods for calculating fees that would provide equity to users and encourage registration;
Build a registration interface that allows users to update rights and permissions information without having to submit a supplementary registration and additional fees;
Accept optional data documenting licensing terms, including information about any applicable public license (such as a Creative Commons license), with a registration application; and
Connect registration and recordation records in order to clarify chain of title information.

In our comments, we also encourage the Office to initiate or commission an empirical study of authors’ views on the advantages of and barriers to registration to evaluate why only a fraction of eligible works are registered. With additional information from authors, the Office could restructure incentives to register copyright claims in order to promote greater participation in the Office’s registration system.

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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Authors Alliance Submits Brief Supporting Reversionary Rights in Canada

Posted December 10, 2018

photo by RonnyK | CC0

Canada’s Copyright Act, last updated in 2012 through the Copyright Modernization Act, is currently under review. In early 2018, Canada’s Standing Committee on Industry, Science and Technology adopted a work plan under which it is conducting a statutorily mandated review. Under this plan, the Committee invited written briefs from stakeholders. Today, Authors Alliance submitted a brief urging the retention of reversionary rights in Canada’s Copyright Act and recommending amendments to the provision that will enhance the utility of reversionary rights.

Under section 14(1) of Canada’s Copyright Act, any grant of interest in a copyrighted work made by an author (except for a grant made in a will) after June 4, 1921 automatically reverts to an author’s estate twenty-five years after an author’s death. Similar to the justifications for the termination of transfer provisions in U.S. law, the reversion mechanism is intended to address “a situation where a work, following the author’s death, had become more valuable over time,” giving the author’s heirs “the opportunity to re-negotiate the royalty terms to reflect the increased value of the work.”[1]

But reversionary rights also give creators the ability to give new life to works that have outlived their commercial lives but are nonetheless historically and culturally valuable. For creators who want their works to be widely shared and enjoyed, reversions are a powerful option for getting their works back out in front of audiences.

Because of the tremendous benefits of reversionary rights for authors and the public, Authors Alliance’s brief recommends retaining a reversionary right provision in the Copyright Act of Canada. To further maximize the benefits of the current provision, our brief also recommends several changes to Section 14(1):

Amending Section 14(1) to allow authors to terminate transfers of copyright a set number of years after the transfer of those rights;
Requiring triggering conditions and/or recordation of ownership information if rights are reverted exclusively to the author, while allowing reversion of non-exclusive rights to the author remain automatic; and
Amending Section 14(1) to make it clear that reversionary rights do not apply to non-exclusive licenses.

Read more about our recommendations by viewing the document below or clicking here to download the brief. For more about termination of transfer under U.S. law, visit the Authors Alliance/Creative Commons Termination of Transfer Tool at rightsback.org and the Authors Alliance termination of transfer resource page.

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[1] A.A. Keyes, Copyright in Canada Proposals for a Revision of the Law 76 (Apr. 1977).

Guest Post: Analysis of Rulemaking and Exemptions to the DMCA in 2018

Posted December 5, 2018

photo by 422737 |CC0

The following analysis was written by Harrison Grant and Brian Trinh of UCI Intellectual Property, Arts, and Technology Clinic and Colleen McCroskey and Corian Zacher of Samuelson-Glushko Technology Law & Policy Clinic at Colorado Law, under the supervision of Professors Jack Lerner and Blake Reid. We are grateful to the student attorneys and their supervisors for their tireless work securing exemptions to Section 1201 for authors and for this careful analysis of the results of recent rulemaking proceedings related to multimedia e-books.

On October 26^th, the Library of Congress announced important new exemptions to Section 1201 of the Digital Millennium Copyright Act (DMCA) that will improve authors’ ability to create in the digital environment. Thanks to the work of a coalition of authors’ organizations including Authors Alliance and two law clinics who represented them, today authors of any non-fiction multimedia e-book can use content from DVDs, Blu-ray, and digitally transmitted video to make fair uses of copyrighted material in their own works.

Authors Alliance Supports Limitations and Exceptions for Education at WIPO SCCR/37

Posted December 3, 2018

photo by hpgruesen | CC0

Last week, Authors Alliance participated in the thirty-seventh session of the World Intellectual Property (WIPO) Standing Committee on Copyright and Related Rights (SCCR/37) in Geneva. Among other topics, the Committee addressed copyright limitations and exceptions for educational and research institutions.

Authors Alliance presented a statement to the Committee on how limitations and exceptions for education can benefit authors, without undermining fundamental purposes of copyright policy, and can encourage the diffusion of knowledge:

Limitations and exceptions for educational purposes can help authors reach wider audiences. Limitations and exceptions facilitate engagement with works that users would otherwise forego due to the cost, difficulty, or even impossibility of licensing, allowing authors to reach new readers without interfering with the normal market for their works. This in turn helps authors establish a larger readership.

Educational limitations and exceptions also promote significant reputational benefits for authors. Educational limitations and exceptions help authors build reputational capital because the uses they enable, such as the use of excerpts from a work in a classroom, signal that the author has made significant contributions to their field. These benefits are especially pronounced for academic authors, whose scholarly reputations are enhanced when their works are assigned as classroom reading.

Educational limitations and exceptions can also reinforce academic authors’ incentives to create. Limitations and exceptions amplify authors’ abilities to contribute to the advancement of knowledge by allowing readers to more readily discover, make use of, and build on their works. These benefits are particularly motivating to academic authors, who often create works in order to share their knowledge, insights, and ideas with a new generation of learners.

Equitable considerations also favor expanded academic limitations and exceptions. Many authors of works that are still in copyright did not have access to the expanded array of dissemination options that exist in today’s publishing ecosystem, including more open frameworks. If they had, they might have chosen to make their works more readily available to the public, but instead their works are often under the control of third-party rights holders. As more academic authors are making their scholarship openly accessible, educators increasingly have the option to assign freely available academic works. As a result, authors of earlier works will be disadvantaged if educational limitations and exceptions do not provide a mechanism by which educators can readily assign reasonable portions of their works for educational purposes.

Insofar as authors are also learners, researchers, and educators, educational limitations and exceptions benefit them by allowing them to access and use the copyrighted works that they need to build their knowledge, engage in research activities, and instruct their students. For example, graduate students and professors need to be able to access and assign limited portions of works in order to teach new generations of learners. If educational limitations and exceptions do not permit limited unremunerated uses for limited educational purposes, essential learning, research, and teaching activities would be unreasonably frustrated.

We are grateful to Zachary Freeman, a third-year law student at New York University School of Law, for providing background research to support our work at WIPO.

Also of note during the session, Professor Sean Flynn from American University introduced a proposed Treaty on Educational and Research Activities (TERA), which aims to harmonize limitations and exceptions and protect cross-border sharing of works in order to promote education and research around the world. TERA includes a general flexible mandate to adopt exceptions for education and research modeled on Berne Article 10(2) and extended to include research activities. The proposed treaty applies to all works—including digital works—used by teachers, students, researchers for teaching, learning, materials creation, and research activities, as long as the use is restrained to the extent justified by a lawful purpose and is compatible with fair practice. Learn more about TERA here.

Authors Alliance will continue to report on the progress of educational limitations and exceptions at WIPO.

“Misleading on Fair Dealing”: Michael Geist on Educational Uses of Content in Canada

Posted November 29, 2018

The following post is part of a series entitled “Misleading on Fair Dealing,” by Professor Michael Geist of the University of Ottawa. Here, Geist shares his recent testimony before the House of Commons’ Standing Committee on Canadian Heritage. Canada is currently considering a comprehensive copyright review, and these comments shed light on the issues surrounding educational uses of copyrighted content. Authors Alliance has been actively following this and other discussions of fair use and educational limitations and exceptions to copyright, both in the U.S. and abroad. We thank Professor Geist for sharing his testimony with our readers; the original post can be viewed here.

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I appeared yesterday before the Standing Committee on Canadian Heritage via videoconference as part of its study on remuneration models for artists and the creative industry. The Heritage study is designed to provide additional context and information for the Industry committee’s copyright review. My opening statement is posted below. It focused on recent allegations regarding educational copying practices, reconciled the increased spending on licensing with claims of reduced revenues, and concluded by providing the committee with some recommendations for action. An audio version of the opening statement is posted here.

Good afternoon. My name is Michael Geist. I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law, and I am a member of the Centre for Law, Technology, and Society. I appear in a personal capacity as an independent academic representing only my own views.

I am sorry that I am unable to appear in person but I am grateful for the opportunity to participate in your study on remuneration models via videoconference.

I have been closely following the committee’s work on this issue, which will undoubtedly provide valuable input to the INDU committee’s copyright review. Last week I was dismayed to hear witnesses claim that Canada’s teachers, students and educational institutions are engaged in illegal activity. This claim is wrong and should be called out as such.

I’d like to address several of the allegations regarding educational copying practices, reconcile the increased spending on licensing with claims of reduced revenues, and conclude by providing the committee with some recommendations for action.

First, notwithstanding the oft-heard claim that the 2012 reforms are to “blame” for current educational practices, the reality is the current situation has little to do with the inclusion of “education” as a fair dealing purpose. You need not take my word for it. Access Copyright was asked in 2016 by the Copyright Board to describe the impact of the legal change. It told the Board that the legal reform did not change the effect of the law. Rather, it said, it merely codified existing law as interpreted by the Supreme Court. While I think that the addition of education must have meant something more than what was already found in the law, its inclusion as a fair dealing purpose was better viewed evolutionary rather than revolutionary.

Second, the claim of 600 million uncompensated copies – which lies at the heart of the allegations of unfair copying – is the result of outdated guesswork using decades-old data and deeply suspect assumptions.

The majority of the 600 million – 380 million – involve K-12 copying data that dates back to 2005. The Copyright Board warned years ago that the survey data is so old that it may not be representative. Indeed, it is so old there are cabinet ministers who could have been the actual students in the K-12 schools at the time they were last surveyed on copying practices.

Of the outdated 380 million, 150 million involves copies that were over-compensated by tens of millions of dollars as determined by the Copyright Board and upheld by the Federal Court of Appeal. Education has had to file a lawsuit to get a refund of those public dollars. I can only imagine the public response if the federal government was found to have overpaid for services by tens of millions of dollars and it failed to take action to recoup that money.

The remaining 220 million comes from a York University study, much of which as old as the K-12 study. Regardless of its age, however, extrapolating some dated copying data from a single university to the entire country is not credible. It would be akin to sampling a few streets in Ms. Dabrusin or Mr. Blaney’s ridings and concluding that they are representative of the entire country.

Third, the committee has heard suggestions that the shift from print coursepacks to electronic course material systems (CMS) is irrelevant from a copying perspective. This is wrong. The data is unequivocal: printed coursepacks have largely disappeared in favour of digital access. For example, the University of Calgary reports that only 53 courses used printed coursepacks last year for a student population of 30,000.

Why does this matter? Three reasons:

First, as universities and colleges shift to CMS, the content used changes too. For example, an Access Copyright study at Canadian colleges found that books comprised only 35% of materials. The majority was journals and newspapers, much of which is available under open access licenses or licensed by other means.

Second, the amount of copying with CMS is far lower than with print. While Access Copyright argues there should be a one-to-one ratio – for every registered student the assumption should be that every page is accessed even for optional readings – the data (and common sense) tells us this is unlikely.

Third, CMS allows for the incorporation of licensed e-books. At the University of Ottawa, there are now 1.4 million licensed e-books, many of which involve perpetual licences that require no further payment and can be used for course instruction. Tens of thousands of the e-books are from Canadian publishers and in many instances universities have licensed virtually everything offered by those Canadian publishers.

What this means is that the shift from an Access Copyright licence is not grounded in fair dealing. Rather, it reflects the adoption of licenses that provide both access and reproduction. These licences get universities access to the content and the ability to use it in their courses. The Access Copyright licence offers far less, granting only copying rights for materials you already have.

With the increased spending, why do some report reduced revenues? There may be several reasons.

First, licensing is often perpetual, meaning that payment comes once, not as an annual royalty.

Second, many works aren’t being used or copied. UBC reports that 69% of their physical items have not been used since 2004.

Third, despite the shift to digital, Access Copyright’s Payback system excludes all digital works. In terms of eligibility, its rules exclude “blogs, websites, e‐books, online articles and other similar publications. Only print editions can be claimed.” Moreover, the Payback system also excludes all works that are more than 20 years old on the grounds that they are rarely copied.

Fourth, Access Copyright has refused to adopt transactional licences, thereby sending licensing money elsewhere. Education is spending millions each year on transactional licensing which permits copying for a specific course, yet Access Copyright has not entered that market.

Fifth, consistent with what this committee heard from Bryan Adams, it may be that part of the problem lies with the relationship between authors and publishers, with authors under-compensated for the digital revenues.

Let me conclude with a few thoughts on solutions on remuneration.

First, efforts to force the Access Copyright licence on educational institutions through statutory damages reforms should be rejected. Education should be free to pursue the best licences the market offers, an approach that is in the best interests of both education and authors. At the moment, that comes directly from publishers and other aggregators, not Access Copyright.

Second, the government should work with Canadian publishers to ensure their works are available for digital licensing either in bundles or through transactional licenses. Given that digital licenses are sometimes the only source of revenue – Access Copyright’s Payback doesn’t compensate for older works and print sales of old books is typically non-existent – embracing the digital opportunities with a forward looking approach may be the only revenue source for some authors.

Third, governments should continue to pursue alternative publishing approaches that improve both access and compensation. For example, last week’s Economic Update announcement of funding for creative commons licensed local news should be emulated with funding for open educational resources that pays creators up front and gives education flexibility in usage.

Fourth, non-copyright policies must be examined. For example, how is that Canadian content rules for film and television production still treat Canadian book authors as irrelevant for Cancon qualification?

Despite the criticism, the 2012 reforms were about establishing rules to foster a digital market for the benefit of all stakeholders. It is still early in the process, but we have already seen a huge shift to digital for both education and the publishing industry, with hundreds of millions spent on digital licensing. That’s a win for everyone except for an outdated licence that now offers little value when compared to other market and legal options.

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Michael Geist is a law professor at the University of Ottawa, where he holds the Canada Research Chair in Internet and E-commerce Law and is a member of the Centre for Law, Technology and Society. His website, michaelgeist.ca, provides coverage of intellectual property, technology, and copyright issues in Canada.

Authorship & Accessibility Resource Roundup

Posted November 13, 2018

Photo of a maze and Authorship and Accessibility title on a green background

As a supplement to our recently released report on authorship and accessibility, we have compiled this list of resources that explain how authors can make their works more accessible in a variety of media formats. It is our hope that these resources will amplify the message of the report and encourage authors to make accessibility a part of their workflow when creating digital content.

Books

Dave Gunn, Accessible Books Consortium: Accessible eBook Guidelines for Self-Publishing Authors

This explanation of how to create accessible e-books isn’t just for self-published authors; it is useful for anyone wishing to create a digital book with accessible features. These guidelines define key terms and explain how to make e-books accessible for a range of platforms, including Amazon’s Kindle, Apple’s iBooks, and Barnes & Noble’s Nook Press. A checklist at the end provides a handy summary of the material.

Apple: iBooks Authors: How to Make Your Books Accessible

This guidance describes how to include descriptions of images and objects in iBooks and provides other handy tips for creating accessible iBooks.

PDFs and Documents

Adobe: Create and Verify PDF Accessibility (Acrobat Pro)

Adobe’s detailed guide to PDF accessibility explains how to create accessible PDFs and check the accessibility of existing PDFs. Adobe guides you through setting a logical reading order, checking color contrast, tagging images, and everything in between.

National Center on Disability and Access to Education: Creating Accessible PDF Documents in Adobe Acrobat

This one-pager and accompanying video explain how to use Adobe’s accessibility wizard and address common issues.

Microsoft: Microsoft Accessibility Center

Microsoft has also created a suite of accessibility guides for their products, including Word, Excel, and PowerPoint, that explain common issues (such as handling images and links) and how to correct them.

National Center on Disability and Access to Education: Creating Accessible Microsoft Word Documents

This one-pager was last updated in 2018 and provides quick tips on using heading styles, alternative text, and other features in Microsoft Word to make documents more accessible.

Video

University of Washington: Creating Accessible Videos

This guidance provides an overview of video accessibility, including information about captions, transcripts, and audio descriptions. It also links to instructions on how to make accessible videos on a variety of platforms, including YouTube, Panopto, Canvas, and Facebook.

YouTube: Add Your Own Subtitles & Closed Captions and Use Automatic Captioning

YouTube’s tutorials explain how to create and upload closed captions to YouTube videos and how to review and make changes to YouTube’s machine-generated captions.

National Center on Disability and Access to Education: Captioning YouTube Videos

This one-pager and accompanying video were last updated in 2018 and explain how to add and edit captions on YouTube videos.

Images

Benetech: DIAGRAM Center Image Description

This guide from accessibility nonprofit Benetech explains how to correctly describe images to print-disabled users—very useful for providing helpful alt text and other descriptions that include necessary information while leaving out details that can confuse screen reading tools.

Mathematical Equations

DIAGRAM Center: Accessible Math

Another excellent resource from Benetech, this guide explains how to make printed mathematical equations and diagrams accessible to readers with limited or no vision.

Websites

W3C: Web Accessibility Tutorials

Last but not least, this collection of tutorials for website accessibility is presented by WC3, the international standards organization for the World Wide Web.

Spotlight on Book Publication Contracts: Shaping Your Grant of Rights

Posted October 30, 2018

In our Spotlight on Book Publication Contracts series, we are shining a light on the ways that authors can negotiate for publication contract terms that help them make and keep their books available in the ways they want. This series is based on the information, strategies, and success stories in our guide to Understanding and Negotiating Publication Contracts. Be sure to check out the online or print version of our guide for more details on these and other strategies to help you meet your creative and pragmatic goals.

The grant of rights is the heart and soul of your publication contract. It specifies what rights in your work you are giving to your publisher and what your publisher can do with these rights. These rights can be broad (e.g., the right to print and sell copies of your work anywhere in the world, forever) or they can be narrow (e.g., the right to sell a limited edition in a specific market for a set period of time).

Last week, we featured contract terms that authors can use to form a publication contract that accommodates open access options. This week, we are sharing more ways you can shape your publication contract to retain some control over your rights, either by limiting the grant of rights or by securing the right to approve or be consulted about how your rights are used.

Limiting the grant of rights

One way you can help ensure your work is available in the ways you want is to negotiate for changes to the grant of rights. This is especially important if holding onto certain rights is important to you for personal or professional reasons, if your publisher is unlikely to be able to exploit certain rights, or if you (or your agent) have another opportunity lined up to use certain rights.

In last week’s post, we shared how authors can use non-exclusive licenses or limited-term grants to limit their grant of rights clauses. Another way to soften the grant is through a “use it or lost it” clause, also called a “revert-back” clause. Under these types of clauses, if your publisher doesn’t use or license a specific right within a set period of time, the right reverts back to you. This is a powerful tool that gives you or your agent another opportunity to use or license rights in the event the publisher is not able to actively exploit them.

Success Story: Howard Zaharoff, a literary attorney interviewed for Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts, worked with an author who wrote a book that had great potential to be turned into a movie. The author was therefore hesitant to sign over motion picture rights for fear the publisher would not exploit them. But the publisher also saw the potential for a Hollywood hit and was keen to try to sell movie rights. To resolve this tension, Zaharoff helped the author secure a “use-it-or-lose-it” provision that satisfied both parties: The publisher was given three years to place the movie rights, but if the publisher did not do so in this timeframe, the author could reclaim the rights.

For other ways to limit the grant of rights, including limiting the scope of the rights granted, asking for a license-back clause, and reserving rights not granted, see pages 63-74 of Understanding and Negotiating Book Publication Contracts.

Securing approval or consultation rights

Sometimes, it makes sense to license rights to your publisher, but you might still want to have some say in how your rights are used. “Approval” clauses give authors the opportunity to review and approve decisions before they are made by the publisher (often subject to the condition that your approval will not be unreasonably withheld).

Success Story: An author interviewed for Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts wanted to maintain some control over the development of the audiobook version of her book and its adaptation into a screenplay. After explaining to her publisher that it was particularly important to ensure the integrity of the dialect and voices of her characters, her publisher agreed to give her the right of approval over the licensing of these subsidiary rights.

Another way to have a say in how your rights are used is through a “consultation” right, which gives you the opportunity to discuss decisions with your publisher before decisions are made about how your work is used. Consultation rights don’t give authors the same level of control as approval rights since the publisher still has the final say, but they provide an opportunity to discuss any concerns with the publisher before decisions are made.

Finally, don’t overlook “notice” provisions, which require your publisher provide timely notice of any uses of your work, including licensed uses by third parties.

For more on approval, consultation, and notice rights, see pages 91-94 of Understanding and Negotiating Book Publication Contracts.

Eleventh Circuit Reverses and Remands Georgia State E-Reserves Case (Again)

Posted October 26, 2018

We thank Krista L. Cox, Director of Public Policy Initiatives at ARL, for the following analysis, which originally appeared on the ARL Policy Notes blog. Authors Alliance submitted an amicus brief in support of fair use in the second appeal to the Eleventh Circuit in 2017, and we continue to track the progress of the case.

The long saga of the Georgia State University (GSU) e-reserves case continues as the Court of Appeals for the Eleventh Circuit reversed the district court’s ruling which had found that the vast majority of GSU’s use of works in its e-reserves constituted a fair use. This is the second time the Eleventh Circuit has reviewed the case, and the second time it has reversed.

In 2008, publishers sued GSU for copyright infringement, arguing that the use of unlicensed excerpts of copyrighted works in the e-reserves constituted infringement. GSU defended itself, relying on the right of fair use. In the first bench trial, the district court ruled in favor of fair use for 43 of the 48 cases of alleged infringement. The Eleventh Circuit reversed and remanded the case in 2014, directing the lower court to re-examine its weight to market substitution and re-evaluate the four fair use factors holistically, rather than taking an arithmetic approach (i.e., if three fair use factors favor the use, but one disfavors it, fair use should always apply). On remand, the district court re-evaluated the four factors and found that 44 of the 48 cases constituted fair use. In her analysis, Judge Evans assigned each factor a weight: “The Court estimates the initial, approximate respective weights of the four factors as follows: 25% for factor one, 5% for factor two, 30% for factor three, and 40% for factor four.” The publishers again appealed to the Eleventh Circuit, which heard the case in 2017. (Here’s a link to ARL’s amicus brief in the second appeal.)

On October 19, 2018, the Eleventh Circuit released its 25 page opinion—more than a year after hearing oral arguments in the case—finding that the district court again erred in its evaluation of fair use. The Eleventh Circuit suggests that the district court was only mandated to re-evaluate its analysis on the second and third factors, but had instead also re-evaluated its analysis on factor four (in which the district court found in the first trial that in 31 cases, the fourth fair use factor weighed against fair use).

Additionally, the Eleventh Circuit points out that “The district court again applied a mathematical formula in its overall analysis of fair use,” which it had been instructed against. Although the district court couched the given weights as “initial” and “approximate,” the Eleventh Circuit found that the district court only adjusted these factors in four instances and di not adjust the other factors in the overall analysis. Thus, “We conclude that the district court’s quantitative rubric was an improper substitute for a qualitative consideration of each instance of copying in the light of its particular facts.” The Eleventh Circuit has remanded the case, directing the district court to use a holistic approach to fair use, and avoid any mathematical approach with respect to the four factors.

Another issue the Eleventh Circuit opinion addresses is whether the cost of purchasing licenses affects the third factor; the district court in the second trial considered the price of use on two ocassions. The Eleventh Circuit rules that price should not be taken into account when evaluating the amount and substantiality of the portion of the work used.

While the Eleventh Circuit reversed and remanded on the above issues, it affirmed the district court’s decision not to reopen the record. Publishers in 2015 filed a motion to reopen, asserting the need to introduce “Evidence of GSU’s ongoing conduct (e.g. its use of E-Reserves during the most recent academic term)” as well as evidence of the availability of digital licenses. Here, the Eleventh Circuit notes that this decision is within the discretion of the trial court.

Kevin Smith posted about the GSU case on In the Open, with an excellent summary of what the Eleventh Circuit’s opinion (as well as its last opinion) does not do, and what, as a result, the publishers have lost on:

…But the big principles that the publishers were trying to gain are all lost. There will be no sweeping injunction, nor any broad assertion that e-reserves always require a license. The library community will still have learned that non-profit educational use is favored under the first fair use factor even when that use is not transformative. The best the publisher plaintiffs can hope for is a split decision, and maybe the chance to avoid paying GSU’s costs, but the real victories, for fair use and for libraries, have already been won.

Library of Congress Expands 1201 Exemptions to All Nonfiction Multimedia E-books

Posted October 25, 2018

photo by 422737 |CC0

Today, the Library of Congress adopted exemptions to section 1201 of the Digital Millennium Copyright Act (DMCA) that prohibits circumvention of technical protection measures. As a part of this rulemaking process, Authors Alliance petitioned to renew the existing exemption that allows authors to bypass encryption to make fair use of film clips in nonfiction multimedia e-books offering film analysis, and we additionally advocated to modify the exemption to allow for the use of film clips in e-books for purposes other than film analysis and in fictional works.

We are pleased to report that the Library of Congress renewed the existing multimedia e-book exemptions and expanded the exemption to all nonfiction multimedia e-books (that is, the exemption is no longer limited to multimedia e-books offering film analysis). The Acting Register of Copyrights found that examples presented in our comments showed a variety of uses of short excerpts in nonfiction multimedia e-books to provide criticism or commentary beyond film analysis and also found that the brevity and transformative nature of the proposed uses favor an exemption because these uses are unlikely to substitute for the original work. The Acting Register concluded that an expansion to all nonfiction multimedia e-books is unlikely to harm, and may increase, the availability of copyrighted works and that the proposed uses will facilitate criticism, comment, teaching and/or scholarship.

The Acting Register declined to recommend to expand the exemption to cover fictional e-books, finding that the record lacked sufficient evidence demonstrating a need to expand the current exemption. We are disappointed that the Copyright Office and the Library of Congress passed on the opportunity to extend the exemption to authors of fictional multimedia e-books, such as fanfiction authors, whose transformative expression fits within the fair use doctrine.

We are grateful to the student attorneys and their supervisors at the Intellectual Property, Arts, and Technology Clinic at UC Irvine School of Law and the Samuelson-Glushko Technology Law & Policy Clinic at University of Colorado School of Law for their work supporting this exemption.

Stay tuned for additional analysis of the 1201 rulemaking for multimedia e-books from the student attorneys at UC Irvine and Colorado Law.