[A2k] Masnik: Obama Administration Considers Joining Publishers In Fight To Stamp Out Fair Use At Universities

Manon Ress manon.ress at keionline.org
Thu Jan 31 12:19:21 PST 2013

Obama Administration Considers Joining Publishers In Fight To Stamp
Out Fair Use At Universities

from the pure-insanity dept


Okay, this is really quite unfortunate. In 2011, we wrote about an
important copyright case involving three publishers suing Georgia
State University for daring to have "e-reserves" that allow professors
to make certain works available to students electronically via the
university library. Nancy Sims, copyright librarian for the University
of Minnesota, wrote a guest post summarizing the case for us as

The publisher-plaintiffs are suing over the way instructors (and
possibly others on campus) share course readings like academic
articles and excerpts from academic books. They are objecting both to
readings posted on course websites (i.e., uploaded by instructors and
accessible only to students registered for a course) and readings
shared via "e-reserves" (i.e., shared online through university
libraries, usually also with access restricted to students registered
for the course). The publishers claim that sharing copies of readings
with students is not usually a fair use, that faculty can't really be
trusted to make their own calls about what is or is not fair use, and
that permissions fees should be paid for most of these uses.
Thankfully, last year, we wrote about how the district court issued an
astounding 350-page ruling that basically said that most of these
electronic reserves were clearly fair use. We had some issues with the
way the judge went about the analysis -- often coming up with random
and arbitrary standards for the amount of a work that could be used
while remaining fair use, but, on the whole, it was good to see the
judge support fair use relatively strongly (and, in some cases, to not
even get to a fair use analysis by saying that the use was allowed as
"de minimis" copying).

Of course, no matter what happened, the other side was going to
appeal. We're getting closer to the appeals court hearing the case,
but something interesting popped up last week. In a somewhat
surprising move, the Justice Department jumped in and asked the court
for some more time for the filing of amicus briefs from concerned
third parties, because it was considering weighing in on the case. The
Justice Department? Why should it be interested in a dispute
concerning whether or not public university libraries are engaged in
fair use by making works available to students?

In digging into this, we've heard from a few sources that it's
actually the US Copyright Office that has asked the DOJ to weigh in on
the side of the publishers and against the interests of public
universities and students. Yes, the same Copyright Office that just
promoted a former RIAA VP to second in command. I'm sure that's just a

Let's be clear: it is flat out ridiculous that the Obama
Administration may be supporting the publishers here. Two out of the
three publishers are foreign publishing giants, and it would be
supporting them against a public university library tasked with
helping to educate students. The entire purpose of copyright law is
supposed to be to promote the progress of learning. The copyright
clause in the Constitution used "science" but back in that era
"learning" and "science" were effectively synonymous. The very first
Copyright Act in the US was actually titled "An Act for the
Encouragement of Learning." Current copyright law is explicit that
fair use covers this sort of situation:
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.
And yet... these publishers, along with the US Copyright Office and
(perhaps) the DOJ, would like to ignore all of this, and reject fair
use in such public learning centers? It is ridiculous. Oh, and did we
mention that the lawsuit by these publishers is really being funded by
the Copyright Clearance Center (who, shockingly, would be in charge of
collecting fees for such uses...) and the American Publishers'
Association? If the Obama Administration wanted to appear any more in
the pocket of "Big Copyright" and against the public interest when it
comes to learning and education, I'm not sure of any better position
to take.

This is just a year after the SOPA fight, and it appears that the
Copyright Office, led by Maria Pallante, who was a massive supporter
of SOPA, has not learned the lesson of that debacle. It would be a
travesty if the Justice Department listened to such an out of touch
position and argued that the court should reject fair use in such

It would be a complete embarrassment for an Obama administration that
has argued that improving our education system is a key policy issue
to turn its back on education by having its Justice Department argue
against a public university library and students, and in favor of a
blatantly self-interested copyright collection agency, funding some
foreign publishers, trying to shake down students for extra money to
learn. Just the fact that the US Copyright Office is supporting this
and asking the Justice Department to make this move is a sign of how
screwed up the Copyright Office is today. And it remains unclear why
this is even an issue that concerns the Justice Department at all.
Since when is access of students at a public university to educational
materials an issue that should be of any interest to the Justice

For what it's worth, we've heard that the people in the Justice
Department who are considering its position are talking to various
government agencies and officials over the next few days to determine
what its final position should be. We would hope that the Justice
Department, and the wider Obama administration (including the
Copyright Office), take into account what happened last year when SOPA
was put forth and the government sought to use copyright law to limit
the public's rights. It would seem unwise to then take a position that
might stir up significant interest, specifically when it involves
something as ridiculous as supporting foreign publishers over public
university students seeking reasonable fair use access to educational
materials, as is clearly supported by the Copyright Act.

Manon Ress
Knowledge Ecology International
manon.ress at keionline.org
tel.: +1 202 332 2670

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