1. Recent Judicial and Legislative Developments in Copyright Martin J. Brennan, MLS Copyright and Licensing Librarian UCLA Library April 24 th, 2014

2. Let’s keep this short. I’ve selected cases with particular relevance to copyright and higher education Each case is much more complex than we have time to indulge here; further reading is required and encouraged Interruptions with questions of clarity encouraged! But I may defer other questions to the afternoon discussion. Finally, a glimpse at legislative developments Image: http://www.hwec.org.uk/about/christianity/http://www.hwec.org.uk/about/christianity/

3. Kirtsaeng v. Wiley http://en.wikipedia.org/wiki/Kirtsaeng_v._John_Wiley_%26_Sons,_Inc In a nutshell: Kirtsaeng is a Thailand native studying at Cornell. He had relatives purchase Wiley textbooks in Thailand (where they are identical but sold at a lower price) and ship to him in the states, where he resold the textbooks at a profit. Wiley argued that the First Sale Doctrine of copyright applied only to items produced in the U.S.

4. Kirtsaeng v. Wiley http://en.wikipedia.org/wiki/Kirtsaeng_v._John_Wiley_%26_Sons,_Inc In a March 19 th, 2013 decision, “The Court held that the first sale doctrine applies to goods manufactured outside of the United States, and the protections and exceptions offered by the Copyright Act to works ‘lawfully made under this title’ is not limited by geography.” http://dockets.justia.com/docket/circuit-courts/ca2/14-344 Also see Omega v. Costco: http://en.wikipedia.org/wiki/Omega_S.A._v._Costco_Wholesale_Corp

5. Authors Guild v. Google and Authors Guild v. Hathi Trust Google case filed first, then Hathi Trust Hathi Trust reached judgment first; that judgment influenced the reasoning of the Google judgment

6. http://www.librarycopyrightalliance.org/bm~doc/google-books-litigation-family-tree.pdf

7. Authors Guild v. Google http://en.wikipedia.org/wiki/Authors_Guild_v._Google In a nutshell: “It centers on the allegations by the Authors Guild, and previously by the Association of American Publishers, that Google infringed their copyrights in developing its Google Book Search database.”

8. Authors Guild v. Hathi Trust In a nutshell: Hathi Trust is a digital library of scanned books, acquired thru participation in the Google Books Search project, maintained by a consortium of academic libraries. Authors Guild argued that these scans constituted copyright infringement. For more information: http://www.hathitrust.org/authors_guild_lawsuit_information

9. Authors Guild v. Hathi Trust Summary Judgment on October 10, 2012. “…I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants' MDP [Mass Digitization Project] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA [Americans With Disabilities Act]…”

10. Authors Guild v. Hathi Trust Appeal filed November 12, 2012. Ongoing. View timeline of court filings in this case: District court: http://dockets.justia.com/docket/new-york/nysdce/1:2011cv06351/384619 Appeal: http://dockets.justia.com/docket/circuit-courts/ca2/12-4547

11. Authors Guild v. Google Dismissed in November 2013: http://www.publicknowledge.org/files/google summary judgment final.pdf Appeal filed 12/23/2013. Ongoing. View timeline of court filings in this case here: http://dockets.justia.com/docket/circuit-courts/ca2/13-4829

12. Authors Guild v. Google Kevin Smith’s reaction to ruling: http://blogs.library.duke.edu/scholcomm/2013/11/17/a-wide-angle-lens-on-fair-use/ “What is most remarkable and valuable about this ruling is not any new ground it breaks in fair use law, but its meticulous placement of that law back where it first arose — in the issue of public benefit and the purpose of copyright.”

13. The Georgia State case AKA: Cambridge University Press et al. v. Becker et al. http://en.wikipedia.org/wiki/Cambridge_University_Press_v._Becker In a nutshell: “The plaintiffs claimed that Georgia State University engaged in ‘systematic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works’ through its e- reserves system. Georgia State asserted that its system did not infringe copyright because its uses were fair use.” This piece in the Chronicle is also recommended: http://chronicle.com/article/Whats-at-Stake-in-the-Georgia/127718/

14. The Georgia State case AKA: Cambridge University Press et al. v. Becker et al. The district court ruled on May 11, 2012, and found that in almost all cases the alleged infringements were fair use. http://docs.justia.com/cases/federal/district-courts/georgia/gandce/1:2008cv01425/150651/423/ Responses to the district court ruling: ARL / Brandon Butler: http://www.arl.org/storage/documents/publications/issue-brief-gsu-decision- 15may12.pdf http://www.arl.org/storage/documents/publications/issue-brief-gsu-decision- 15may12.pdf Kevin Smith: http://blogs.library.duke.edu/scholcomm/2012/05/22/more-on-gsu-and-the-publisher-response/ http://blogs.library.duke.edu/scholcomm/2012/05/22/more-on-gsu-and-the-publisher-response/

15. The Georgia State case AKA: Cambridge University Press et al. v. Becker et al. The district court ruled on May 11, 2012, and found that in almost all cases the alleged infringements were fair use. 99 instances (all from books) initially identified by both parties Publishers reduced the number voluntarily to 75 1/3 thrown out because publishers could not prove copyright interest More thrown out through de minimis reasoning Only 5 cases were deemed infringements.

16. The Georgia State case AKA: Cambridge University Press et al. v. Becker et al. The publishers have appealed. Jaszi and Hansen et al Brief in support of Georgia State: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2259697 Kevin Smith’s analysis of the oral arguments in November 2013: http://blogs.library.duke.edu/scholcomm/2013/11/20/a-discouraging-day-in-court-for-gsu/ “ …a good ruling, presumably largely affirming Judge Evans, is not impossible. But it seems quite unlikely after yesterday.”

17. The Georgia State case AKA: Cambridge University Press et al. v. Becker et al. What to look for on appeal: District court used a fairly mechanical formula to determine the 3 rd factor of fair use, the “amount and substantiality of a work.” Generally, one chapter from a book or less favored fair use, for instance. Even though the judge retained flexibility in her analysis of individual claims, that level of mechanical decision making could be a problem for the appellate court.

18. AIME v. UCLA In a nutshell: AIME (& Ambrose) claimed that UCLA had infringed copyright by streaming digital copies of videos on DVDs purchased from Ambrose to students in a UCLA class. Read the motions and orders of the case here: http://dockets.justia.com/docket/california/cacdce/2:2010cv09378/489296/

19. AIME v. UCLA UCLA filed a motion to dismiss, arguing that: 1. UCLA and named defendants are immune from suit; 2. Plaintiff AIME lacks standing; and 3. Plaintiffs have failed to state a claim upon which relief can be granted. The court agreed and dismissed, and also dismissed a second time after the original complaint was amended. Final order on January 8 th, 2013.

20. AIME v. UCLA Kevin Smith analyzes the final orders in this case: http://blogs.library.duke.edu/scholcomm/2012/11/26/another-fair-use-victory-for-libraries/ And offers the key takeaways for libraries: 1. The fair use issue as to streamed digital video was not decided. 2. Clear license terms would have removed defense rationale 3. Dismissal not likely for private institutions under these arguments 4. Another bit of proof that courts favor educational fair use

21. In other news… Copyright Office / Librarian of Congress rulemaking: http://www.copyright.gov/laws/rulemaking.html DMCA triennial rulemaking: http://www.copyright.gov/1201/ Peter Jaszi summarizes: http://www.wcl.american.edu/pijip/go/blog-post/worth-the-wait-installment-1

22. In other news… The Register of Copyright’s been busy: Call for Updates to U.S. Copyright Law http://www.copyright.gov/regstat/2013/regstat03202013.html The Next Great Copyright Act: http://www.copyright.gov/docs/next_great_copyright_act.pdf Copyright office call for comment on orphan works: http://www.copyright.gov/orphan/

23. In other news… House Judiciary Committee proposal for “The Next Great Copyright Act” Their Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on 4/2/14 regarding “Preservation and Reuse of Copyrighted Works”: http://judiciary.house.gov/index.cfm/hearings?ID=ED90F495-04B3-4972-ABCB-01837D6ADEBA Panic is not called for: many legislative watchers do not expect comprehensive copyright reform to move forward with any speed… The more pressing concern is incremental changes on specific issues.

24. Many voices, many opinions on copyright reform I recommend these thought pieces on copyright and fair use, written for Fair Use week in light of the rising discussion of copyright reform: http://www.techdirt.com/articles/20140117/10562125920/copyright- week-fair-use-is-not-exception-rule.shtml http://www.techdirt.com/articles/20140117/16121325923/copyright- week-if-we-want-to-get-copyright-its-time-to-go-back-to-basics.shtml http://benetech.org/2014/01/17/the-case-for-copyright-exceptions- and-fair-use/

25. Keep yourself informed Scholarly Communications @ Duke http://blogs.library.duke.edu/scholcomm/ Electronic Freedom Foundation https://www.eff.org/ The Organization for Transformative Works http://transformativeworks.org/