1. 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

2. 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

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

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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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