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Services » Scholarly Communication » Copyright » Copyright Developments in 2012

Copyright Developments in 2012

Copyright News from 2012

Laura Quilter, UMass Amherst Libraries

Version 1.1.  November 28, 2012


I. Teaching & Libraries

Cambridge University Press v. Patton (Georgia State Univ. ereserves)

Georgia State University was sued for its ereserves by university presses, bankrolled by CCC.  They changed their policy mid-stream, and because the publishers were only seeking an injunction, not damages (all they could get from a public university), the court looked only at the new policy.  The court found only 5 infringements out of the original claims:  The publishers dropped 25-ish claims themselves; the court kicked out 18 claims that the publishers couldn’t prove ownership on; the court said 9 claims were “de minimis” because students had never accessed them; the court found that 42 claims were non-infringing fair uses; leaving only 5 to be found infringements.  The court then ordered the publishers to pay GSU’s attorneys fees, which was a bit of a slap. 

Several key holdings were considered “wins” by the library community, including (a) dismissal of the relevance of the so-called “Classroom Guidelines”; and (b) fair use analysis that public universities would basically always get a plus on the first use of the fair use factor for e-reserves.  The library community was a bit less happy with the court’s reliance on a quantitative rule-of-thumb (10% of 1 chapter), and the suggestion that if CCC had established a relevant permissions market, then the fourth fair use factor would have gone the other way.   

So, a highly favorable win for Georgia State University, but publishers are appealing (bankrolled by CCC).  

The publishers are appealing the decision; look for decision in 2013.

Assn for Information Media & Equipment v. University of California (UCLA video streaming)

            The Assn for Information Media & Equipment (AIME) with Ambrose Video Publishing jointly sued UCLA for digitizing DVDs and streaming entire movies in their course management system.   The Court dismissed the case in 2011, ruling that AIME lacked associational standing (it doesn’t hold copyrights for its members); UCLA had sovereign immunity; and, principally, the agreements covered “public performance”, which is what the streaming looked like.   A Second Amended Complaint followed, which was also dismissed (September 28, 2012).

            The final written order was released in late November 2012.  It basically affirmed all of the previous holdings, and added a bit more detail to the fair use analysis.  Specifically, the court found that on the fourth factor, the DVD streaming did not substitute for a purchase and caused no market harm.  On the second factor, the nature of the original copyrighted work, the court found that factor to be neutral, because although highly creative works were streamed, they were in the context of teaching. Although it was clear from the factor-by-factor analysis that the court felt the uses were fair, the court did not ultimately make a decision about fair use—concluding only that since there was a plausible case for fair use, the officials could not be held liable for copyright infringement. 

            No word on appeals. 

Canadian Copyright Pentalogy (July 12, 2012):

Section 1201 Rulemaking

The Copyright Office just released its triennial rulemaking on exceptions to the “anticircumvention” provisions – i.e., the legal restrictions on ripping DVDs, jailbreaking iPhones, and hacking ebooks. 


There are two pieces of good news for libraries in the most recent round:

(1)  An expansion of the “teaching” exemption for DVDs, allowing K-12 teaching, and more generally a “fair use” approach.  The previous exemption

(2)  An expansion of the print-disabled ebook exemption, allowing disabled owners of ebooks to hack their ebooks on whatever format they own to get at read-aloud technologies.  The previous rulemaking had limited accessibility hacking to only those works that were not accessible in any format – which effectively required print-disabled people to own one of every kind of ebook reader. 


Section 108 Hearings

Two days of hearings on Section 108 reforms have been scheduled for early 2013 in New York (they were originally scheduled for November 2012, but postponed due to Hurricane Sandy).   The Copyright Office would like to get Section 108 updated.  Libraries fear that publishers will load down legislation with provisions unfriendly to library and educational use, and in particular Copyright Office support for licensing.   Possibility of consensus on archival and preservation copying, but consensus on “ILL” will be more difficult.


II. Mass Digitization, Orphan Works, Public Domain

Authors Guild v. HathiTrust (mass digitization)

Authors Guild v. Google (mass digitization)

Golan v. Holder (copyright restoration for foreign works)


Copyright Office “Orphan Works” Notice of Inquiry (late January, 2013)

European “Orphan Works” Legislation

Jennifer Urban, “How Fair Use Can Help Solve the Orphan Works Problem”


III. First Sale / Licensing

Kirtsaeng v. Wiley


Capitol Records v. ReDigi (digital first sale)

IV. Disability / Accessibility

V. Fair Use

VI. Other Items of Note


Last Edited: 2 February 2013