THREE LAWSUITS AGAINST SEVEN UNIVERSITIES TEST THE LIMITS OF FAIR USE IN EDUCATIONAL SETTINGS Linda K. Enghagen, J.D., Professor Isenberg School of Management University of Massachusetts at Amherst

The information contained herein along with the question and answer session are for educational purposes only. Neither is a substitute for legal advice and neither is to be construed as the rendering of a legal opinion. Disclaimer Copyright © 2012 Linda K. Enghagen

Cambridge University Press et al vs Georgia State University Copyright © 2012 Linda K. Enghagen

AIME and Ambrose Video Publishing, Inc. vs UCLA University #2 Copyright © 2012 Linda K. Enghagen

The Authors Guild et al vs Hathitrust, University of Michigan, University of California, University of Wisconsin System, Indiana University and Cornell University Universities #3-7 Copyright © 2012 Linda K. Enghagen

Cambridge University Press et al vs GSU The Easy One Publishers’ Requested Ruling Use with permission of copyright holder or authorized agent = OK GSU’s Response Duh!!!!!! Cambridge University Press et al vs GSU Copyright © 2012 Linda K. Enghagen

Cambridge University Press et al vs GSU Really? Publishers’ Requested Ruling 1976 “Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions With Respect to Books and Periodicals” = OK GSU’s Response Guidelines = historical artifact Legislative history: guidelines not intended to limit copying permitted by Section 107 (fair use); minimums providing safe harbor Cambridge University Press et al vs GSU Copyright © 2012 Linda K. Enghagen

Cambridge University Press et al vs GSU Worried About Course Packs? Publishers’ Requested Ruling Fair use = no more than 10% under any circumstance GSU’s Response Additional restriction exceeds conservative Classroom Guidelines Inconsistent with fair use Single purpose: increase permissions fees Cambridge University Press et al vs GSU Copyright © 2012 Linda K. Enghagen

Cambridge University Press et al vs GSU Training Required Publishers’ Requested Ruling GSU will develop & “promptly implement” copyright compliance training programs GSU’s Response Administrative costs of implementation = enormous Not including additional permissions fees May result in it no longer being feasible to provide e-reserves, learning management systems, faculty websites, course websites etc. Contravenes copyright policy under statute: “…fair use … is not an infringement of copyright” Cambridge University Press et al vs GSU Copyright © 2012 Linda K. Enghagen

Cambridge University Press et al vs GSU Copyright Officer Required Publishers’ Requested Ruling GSU will designate employee trained to answer copyright compliance questions. GSU’s Response Administrative costs of implementation = enormous Not including additional permissions fees May result in it no longer being feasible to provide e-reserves, learning management systems, faculty websites, course websites etc. Contravenes copyright policy under statute: “…fair use … is not an infringement of copyright” Cambridge University Press et al vs GSU Copyright © 2012 Linda K. Enghagen

Cambridge University Press et al vs GSU Copyright “Probation?” Publishers’ Requested Ruling GSU will monitor and certify compliance to Court for 3 years. GSU’s Response Administrative costs of implementation = enormous Not including additional permissions fees May result in it no longer being feasible to provide e-reserves, learning management systems, faculty websites, course websites etc. Contravenes copyright policy under statute: “…fair use … is not an infringement of copyright” Cambridge University Press et al vs GSU Copyright © 2012 Linda K. Enghagen

Cambridge University Press et al vs GSU The Purpose of Which is …? Publishers’ Requested Ruling Certification will identify all materials in e-reserves + number of “hits” of each per semester GSU’s Response Administrative costs of implementation = enormous Not including additional permissions fees May result in it no longer being feasible to provide e-reserves, learning management systems, faculty websites, course websites etc. Contravenes copyright policy under statute: “…fair use … is not an infringement of copyright” Cambridge University Press et al vs GSU Copyright © 2012 Linda K. Enghagen

Cambridge University Press et al vs GSU Can you say FERPA? Publishers’ Requested Ruling No more than once per semester, publishers will be given access to e-reserves and LMS. GSU’s Response Administrative costs of implementation = enormous Not including additional permissions fees May result in it no longer being feasible to provide e-reserves, learning management systems, faculty websites, course websites etc. Contravenes copyright policy under statute: “…fair use … is not an infringement of copyright” Cambridge University Press et al vs GSU Copyright © 2012 Linda K. Enghagen

Cambridge University Press et al vs GSU Because no one has enough form-filling in their lives … Publishers’ Requested Ruling Electronically posted work must be accompanied by “Faculty/Instructor Certification Concerning Electronic Course Material” GSU’s Response Administrative costs of implementation = enormous Not including additional permissions fees May result in it no longer being feasible to provide e-reserves, learning management systems, faculty websites, course websites etc. Contravenes copyright policy under statute: “…fair use … is not an infringement of copyright” Cambridge University Press et al vs GSU Copyright © 2012 Linda K. Enghagen

Cambridge University Press et al vs GSU Perhaps my personal favorite … Publishers’ Requested Ruling “Faculty/Instructor Certification Concerning Electronic Course Material” forms must be “collected by designated GSU representative before copies are made or distributed and stored by GSU for at least two years.” GSU’s Response Administrative costs of implementation = enormous Not including additional permissions fees May result in it no longer being feasible to provide e-reserves, learning management systems, faculty websites, course websites etc. Contravenes copyright policy under statute: “…fair use … is not an infringement of copyright” Cambridge University Press et al vs GSU Copyright © 2012 Linda K. Enghagen

AIME and Ambrose Video Publishing Inc. vs. UCLA Undisputed facts … UCLA purchased videos produced by Ambrose Included “public performance” rights UCLA digitized the videos and transmitted them to students via its secure LMS UCLA was sued by AIME and Ambrose for copyright infringement and breach of contract among other things AIME and Ambrose wanted an injunction + $ AIME and Ambrose Video Publishing Inc. vs. UCLA Copyright © 2012 Linda K. Enghagen

AIME and Ambrose Video Publishing Inc. vs. UCLA Case dismissed … Sovereign immunity applies to UCLA AIME lacks standing Not copyright holder “Public performance” right permits streaming Copyright Act preempts state law claims At least according to this judge. Unknowns remain … Digitizing + transmission = fair use? Can terms & conditions of licensing agreement curtail fair use? Or, do you get fair use no matter what the licensing agreement says? Did UCLA win the battle but we will all lose the war? Higher prices? AIME and Ambrose Video Publishing Inc. vs. UCLA Copyright © 2012 Linda K. Enghagen

Background 1st Cousin to Google Book Search Project Hathi Trust’s Orphan Works Project Trust + universities engaged Google, Inc. to digitize and “make available online to University students, faculty and library patrons full copies of ‘orphan works’” Claim = fair use permits such use of orphan works Central (though not only) issue = criteria for determination of what qualifies as an “orphan work” The Authors Guild et al vs Hathitrust, University of Michigan, University of California, University of Wisconsin System, Indiana University and Cornell University Copyright © 2012 Linda K. Enghagen

Orphan Work Myth: orphan works are in the public domain Still under copyright protection (i.e. not expired) Copyright owner cannot be identified/located after reasonable search Result = can’t get permission for uses in excess of fair use The Authors Guild et al vs Hathitrust, University of Michigan, University of California, University of Wisconsin System, Indiana University and Cornell University Copyright © 2012 Linda K. Enghagen

Orphan Works – What is allowed? Fair use works as long as the use is for a fair use purpose and is within the parameters of the fair use factors Purpose and character of use Nature of work used Amount and substantiality of portion used Impact on potential market for the original Library archival rights Make replacement copies for works that are lost, damaged, or deteriorating and are no longer available for purchase The Authors Guild et al vs Hathitrust, University of Michigan, University of California, University of Wisconsin System, Indiana University and Cornell University Copyright © 2012 Linda K. Enghagen

U-M Library statement on the Orphan Works Project September 16, 2011: The close and welcome scrutiny of the list of potential orphan works has revealed a number of errors, some of them serious. This tells us that our pilot process is flawed. The Authors Guild et al vs Hathitrust, University of Michigan, University of California, University of Wisconsin System, Indiana University and Cornell University Copyright © 2012 Linda K. Enghagen