Hopefully all of the paperwork will be filed well before the end of the summer and we’ll have a decision by this time next year.

An interesting fact about the ACRL brief is that it mentions the Code of Best Practices that they released last year. While this case will in no way become a legal challenge to that code the outcome of the case will determine how people view the code. If the initial ruling is upheld then the ACRL’s best practices will still be considered best practices. If the ruling is overturned then policies based around the ACRL’s code will probably end up being reviewed and the code may also come under ACRL review.

Instructors:

• Thank you for taking advantage of the Course Reserve service.
• Remember that we offer Course Reserve for the Summer semester and will be glad to post materials for any course that is being taught.
• Please keep us in mind when creating your syllabus.
• If you do not pick up the books on Course Reserve that you own and do not get them via campus mail before the end of May let us know.
• Request your materials for Course Reserve early to avoid the start of the semester rush.
• If you had a positive experience with the Course Reserve service tell the other faculty in your department about it. 

Putting textbook, workbook, and licensed coursepack materials on electronic Course Reserve is problematic at best. One of the major arguments for finding Course Reserve to be fair use is that it is transformative in the sense that the original material was not meant for educational use. Textbooks and workbooks are clearly intended for educational use so the amount that could be considered fair use is much smaller than other works. Additionally since workbooks are disposable pages from them could easily be considered replacements for legitimately purchased copies of the entire work and should not be put on electronic course reserve. Coursepacks are problematic in the sense that the right to use each work in the paper coursepack was purchased for use only in a physical format; this did not include the right to produce digital copies that do replace the sale of the coursepack itself. Material not in the coursepack could be placed on electronic reserve, but readings is the coursepack should be avoided.

Two questions that come up when processing a book request for Course Reserve is does the library own the material and should the library own the material. Textbooks tend to be expensive, quickly replaced by new editions, frequently stolen, and lack future research interest. However a case can be made for their purchase and if the library owns a copy it probably can be put on Course Reserve. Workbooks, coursepacks, and custom textbooks however are almost never purchased for any library’s collection. Coursepacks and custom textbooks are designed to have a short lifespan of use, often only a semester, and would need costly rebinding to survive in on a library shelf for many years. Workbooks by their very nature are to be marked up, written in, and generally treated in a way that most libraries would consider to be damaging, in addition to the fact that most are bound in a manner that almost insures a short lifespan.

Usually an instructor must own a legally produced copy of the textbook, workbook, or coursepack to be put on Course Reserve. Using an instructor owned copy does mean that a copy will be available for student use regardless of the individual library’s collection policies. Generally it is a sound idea to use a short loan period and keep the materials in the library if possible. These materials may have to be repurchased by the instructor if it is stolen or damaged, most libraries do not take responsibility for copies put on Course Reserve.

On Tuesday the court handed down a 6-3 decision in favor of Kirtsaeng. The primary motivation for this ruling was based on the fact that lower courts assumed geographic limitation was not written into the statute and the language of the statute could not be stretched to include one. In the ruling the court maintained that once a lawfully made work was purchased the same copy could be resold inside the United States regardless of its place of manufacture. That the copyright holder’s “first sale” is exhausted even if the initial sale took place overseas.

Under this ruling private owners and libraries  may continue to sell or lend materials that were manufactured outside of the United States without fear. However it is notable that much of the fear this generated concerned hypothetical suits that publishers could have brought and not suits that are currently in the court system.

The court also noted that it was within the powers of Congress to draft a narrow bill that addressed only the resale of works licensed for use overseas. If any member of Congress will propose a bill addressing that situation is an open question.

What does this mean for faculty and staff? Not much. Student work can be graded, reviewed, marked, and copies retained for personal scholarship the same as any other work. However homework and student projects can not be distributed to the entire class, published, or posted online unless you have the student’s permission. (Written permission is best.)

Similarly if portions of material prepared by a student appear in your work then they need to be cited. If the student’s work wasn’t published then you should get their permission also.

It is also important to remember that the student is responsible for their own copyright violations, even if they are preparing material for a course. Many of their uses will be covered by a “fair use” defense, but not all. Also “fair use” does not apply if a given project violates the terms of service for wherever it is housed.

Right now there are two questions that will hopefully be answered soon.

First, what defense will Georgia State use? They have until April 18th to file and any additional amicus briefs that come in between now and then will effect the contents of their reply. Similarly they will need to use case law beyond the initial ruling. It is also possible that they may attempt to use the appeal to widen the ruling, but that seems risky.

Second, the Department of Justice as requested that their deadline to file in the case be extended. The big question is if the federal government does file what will the brief contain? Which of the publishers agruement will the administration come out in support of and which, by silence, will it avoid? All interesting questions, but unimportant unless the Department of Justice actually files which is an open question at this point.

Right now, the amicus briefs are making for interesting, if somewhat repetitive, reading. The influence their arguments will have on the court is anyone’s guess.

Cambridge University Press, Oxford University Press Inc., and Sage Publications Inc. filed their full appeal in the Georgia State case (“Cambridge University Press, Oxford University Press Inc., Sage Publications Inc. versus Becker et al.”) on January 28, 2013. The appeal will be dealt with by Eleventh Circuit or the United States Court of Appeals. Reading the appeal as a non-lawyer a number of the publishers’ claims seem obvious, some less so, and few seem to be phrased as borderline personal attacks.

One of the problems the publishers are encountering is that they are victims of their own success in previous legal actions. Most of their arguments are based on the so called Course Pack Cases (“Basic Books, Inc. versus Kinko’s Graphics, Corp.” and “Princeton University Press versus Michigan Document Services, Inc.”) with other cases providing additional grounds, support, and the definition of terms. They have to rely on so little case law because publishers have in the past been very successful at securing settlements. So the two main cases cited for several of their points were brought against infringing for-profit groups that were reselling copyrighted material. How applicable the court will find those cases to the infringements of a not for-profit government agency making material available to their community for free is an open question. Some of the points and issues between the cases map to each other well and some do not.

Another potential issue that the appeal has is that it uses the legislative history of the 1976 Copyright Act in place of settled case law when assessing the limitations on educational copying. This is an improvement over the publishers’ attempt to present the APA Classroom Guidelines as standards during the initial case. It is however still only a portion of the legislative history of the Copyright Act and not limititations codified in the Copyright Act itself.

The final weakness of the appeal that I noticed was one of tone. At various times it came very close to accusing Judge Evans of judicial bias for the defendants. While a number of Judge Evans choices in determining use were novel and open to questioning the publishers’ manner of expression felt like a poor choice. If the publishers had any proof of bias they would have presented it in the appeal. Casting aspersions on the trial judge might alienate the appellate judges.

The appeal’s strongest points concern fees.  After finding numerous (5) solid cases of infringement on the part of the defendant it made little sense to assign all costs to the publishers. They also point out that the ruling on fees included Dr. Kenneth Crews as a lawyer. While Dr. Crews is a lawyer, in this case he was called in the role of an expert witness and not retained as an attorney.

Until Georgia State University files their response we cannot begin to accurately guess at the appellate court’s finding. Additionally the Department of Justice as requested additional time to decide if they will file a brief in this case. No doubt other groups will be submitting their own briefs. So we can all rest assured that the case is far from being settled law.

 Course Reserve materials can be added at any point in the semester. There is no deadline for Spring 2013 Course Reserve requests.

Whenever possible Course Reserve staff will link to the vendor provided copies of materials. Many journal articles can be accessed in this manner, but not all.

It is the responsibility of instructors to provide editable pdfs  or photocopies of all new readings. Please include a photocopy of the title page and copyright notice of the source material. If the libraries can link to an item then the instructor does not need to supply a copy

Textbooks are expensive. If an instructor has a spare copy of the textbook they are using for a course it might be helpful to their students to have the spare copy on Course Reserve. All instructor owned materials are returned at the end of the semester.

Our online ordering form was down earlier this week, but it is back now and can be accessed. Remember that you may need to provide photocopies of book chapters or articles for scanning.

Also all of the Course Reserve sites will be busy next week. Material will be posted in a timely manner, but timely does not mean immediate. Your patience will be appreciated by our staff. Also material can be added to reserve over the entire semester.

Hopefully all instructors, staff, and students will have a productive semester.

The Internet is an excellent medium for sharing information. However one of the purposes of copyright is to allow the author to control how their work is disseminated. Since nearly everything shared online is covered by copyright this can create problems in determining how to share the interesting bits of information you discover online.

Downloading a copy of most files or web pages is easy. In a lot of ways its no different from printing them. However it is important to remember that downloaded copies are for your personal use. Once you begin emailing them or re-posting the material on another site you are ingaging in copyright infringement. Usually on a small scale and perhaps with a valid fair use defense, but not always. For example downloading runs or even issues of a journal and making them available is a clearly actionable violation of copyright.

Re-posting can also be a copyright violation. Once you have copied the work of another person and posted it somewhere outside of their control you have infringed. Small portions used for comment or journalism (of any sort) is easy to defend.  The more unique value you add to the portions used the safer your defense will be. It is important to remember that materials kept behind a pay wall (i.e. most academic journal articles) are commercial products so smaller portions should be used or permission purchased from the copyright holder.

Linking is the easiest and most legal method for sharing found material. The person that finds the material transmits a link to their audience. If the audience has the permissions required to view the linked address they will see it once they click the link. If the audience does not have permission to view the material then they won’t reach it. The person or group that originally posted the content can remove it whenever they wish and have suffered no infringement. You may also be contacted to remove the link depending on the context that you are posting it and the amount of traffic your referral is generating.

In general linking is the best way to share information or documents online from a copyright point of view. If linking does not suit your needs then create your own content by copying small portions of the source document and commenting on them. Downloading and distributing the content itself is the most legally actionable method and should include a full fair use analysis. Also make sure you are downloading only materials that you have legal access to, otherwise you may find yourself with no legal defense for the infringement.

Remember the absolute best way to share content is with the permission of the copyright owner. Check the site to see if the material includes a list of permissions relating to how site content can be used.