Archive for the 'E-Reserves' Category

"Steps toward a New GSU Ruling"

Posted in Copyright, Digital Copyright Wars, E-Reserves, Publishing, Research Libraries on April 28th, 2015

Kevin Smith has published "Steps toward a New GSU Ruling" in Scholarly Communication @ Duke University.

Here's an excerpt:

It appears that once again the publishers have failed in an effort to broaden the scope of the case beyond the item-by-item fair use analysis that has already been done and to possibly reintroduce some of the broad principles that they really want, which have so far been rejected at every stage. Now Judge Evans has explicitly told them, in her scheduling order, that what is required is "consideration and reevaluation of each of the individual claims" in order to redetermine "in each instance… whether defendants' use was a fair use under 17 U.S.C. section 107." Her schedule for the briefs is tight, with an end of the briefing now scheduled just two and a half months from now. Presumably we would still have a long wait while Judge Evans applies revised reasoning about fair use to each of the individual excerpts, but it looks a bit more like that is what is going to happen.

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    "Copyright Incentives in the GSU Appeals Court Ruling"

    Posted in Copyright, E-Reserves, Publishing on November 14th, 2014

    Kevin L. Smith has published "Copyright Incentives in the GSU Appeals Court Ruling" in Library Journal.

    Here's an excerpt:

    The word "incentive" appears ten times in the ruling issued last month by the Eleventh Circuit Court of Appeals in the Georgia State University (GSU) copyright infringement case, but it is slightly unclear in this rather odd opinion just who is the object of the incentive created by copyright.

    Digital Scholarship | "A Quarter-Century as an Open Access Publisher"

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      Fair-Use and E-Reserves: "A Reversal for Georgia State"

      Posted in Copyright, Digital Copyright Wars, E-Reserves, Publishing on October 20th, 2014

      Kevin Smith has published "A Reversal for Georgia State" in Scholarly Communications @ Duke.

      Here's an excerpt:

      The Eleventh Circuit Court of Appeals has issued its ruling in the publisher appeal of a district court decision that found most instances of electronic reserve copying at Georgia State to be fair use. The appellate court ruling is 129 pages long, and I will have much more to say after I read it carefully. But the hot news right now is that the Court of Appeals has reversed the District Court's judgment and remanded the case back for proceedings consistent with the new opinion. The injunction issued by the District Court and the order awarding costs and attorney's fees to GSU have been vacated.

      Read more about it at "Publishers Win Reversal of Court Ruling That Favored 'E-Reserves' at Georgia State U." and "A Win for Publishers."

      Digital Scholarship | "A Quarter-Century as an Open Access Publisher"

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        "Educational Fair Use Brief in Support of Georgia State University on Behalf of Amici Curiae Academic Authors and Legal Scholars"

        Posted in Copyright, E-Reserves, Publishing, Research Libraries on May 9th, 2013

        David R. Hansen et al. have self-archived "Educational Fair Use Brief in Support of Georgia State University on Behalf of Amici Curiae Academic Authors and Legal Scholars" in SSRN.

        Here's an excerpt:

        In this case, Plaintiff Publishers accuse GSU and its faculty of violating their copyrights through this practice. But, as the district court correctly found, such uses are fair, especially because they primarily use factual information to promote the purposes of education and teaching, the amount taken was reasonable in light of its purpose, and because Plaintiffs' evidence of a cognizable copyright market harm was speculative at best. However, the district court erred when it incorrectly concluded that these uses are not transformative. Using an unduly narrow definition of the concept, it failed to consider how educators repurpose scholarly works in productive ways that bring new meaning to and understanding of the works used.

        As scholars and educators who produce and repurpose such works, amici urge this Court to affirm that these uses constitute a transformative use under the first fair use factor, and to reaffirm the findings under the other factors that these uses are fair. A finding of fair use in this case not only furthers the underlying goals of scholarship and education – access to knowledge – but also the very purposes of the Copyright Act itself.

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          Library Copyright Alliance Files Brief in Georgia State University E-Reserves Case

          Posted in Copyright, Digital Copyright Wars, E-Reserves, Publishing, Research Libraries on April 29th, 2013

          The Library Copyright Alliance has filed a brief in the Cambridge U. Press et al. v. Mark P. Becker et al. e-reserves copyright case that was prepared by the EFF and Jonathan Band.

          Here's an excerpt from the EFF announcement:

          In the amicus brief filed today, EFF urges the appeals court to see what the district court saw: the vast majority of uses at issue were protected fair uses. Moreover, as a practical matter, the licensing market the publishers say they want to create for e-reserves will never emerge—not least because libraries can't afford to participate in it. Even assuming that libraries could pay such fees, requiring this would thwart the purpose of copyright by undermining the overall market for scholarship. Given libraries' stagnant or shrinking budgets, any new spending for licenses must be reallocated from existing expenditures, and the most likely source of reallocated funds is the budget for collections. An excerpt license requirement thus will harm the market for new scholarly works, as the works assigned for student reading are likely to be more established pieces written by well-known academics. Libraries' total investment in scholarship will be the same but resources will be diverted away from new works to redundant payments for existing ones, in direct contradiction of copyright's purpose of "promot[ing] progress."

          Digital Scholarship | Digital Scholarship Publications Overview | Sitemap

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            Surprise Brief by Justice Department in Georgia State University E-Reserves Case

            Posted in Copyright, Digital Copyright Wars, E-Reserves, Libraries on February 4th, 2013

            The Justice Department has filed a brief in the Cambridge University Press et al. v. Patton et al. case by for a 21-day extension in which to "to file any amicus brief in support of appellants or in support of neither party."

            Here's an excerpt from "Obama Administration Considers Joining Publishers in Fight to Stamp out Fair Use at Universities":

            In digging into this, we've heard from a few sources that it's actually the US Copyright Office that has asked the DOJ to weigh in on the side of the publishers and against the interests of public universities and students.

            Read more about it at "Publishers and Library Groups Spar in Appeal to Ruling on Electronic Course Reserves," "Unwelcome Intervention?," and "U.S. Attorneys May Weigh in On GSU E-Reserves Case."

            | Google Books Bibliography (XHTML website; over 320 entries) | Digital Scholarship |

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              Publishers Appeal Georgia State E-reserves Case

              Posted in Copyright, Digital Copyright Wars, E-Reserves, Publishing on September 11th, 2012

              Cambridge University Press, Oxford University Press, and Sage Publications have filed an appeal in the Cambridge University Press et al. v. Patton et al. case.

              Here's an excerpt from the press release announcing the publishers' intent to appeal:

              This case had the potential to mark a significant first step toward addressing the need for clarity around issues of copyright in the context of higher education, where current practices around fair use in a digital environment vary widely and could benefit from sound judicial guidance. Our hope was that the District Court would provide that guidance.

              Instead, the Court's rulings, culminating in the August injunction decision, shift radically from long-accepted fair use principles and introduce, among other errors, unsustainable policies regarding the proportion of a work not readily available for digital licensing that can be digitally copied without restriction. We have no alternative but to appeal, to protect our authors' copyrights and advocate for a balanced and workable solution.

              Read more about it at "Publishers Appeal Ruling in GSU E-Reserves Case."

              | Scholarly Electronic Publishing Bibliography 2010: "SEP [Scholarly Electronic Publishing Bibliography] is compiled with utter professionalism. It reminds me of the work of the best artisans who know not only every item that leaves their workshops, but each component used to create them—providing the ideal quality control." — Péter Jacsó ONLINE 27, no. 3 (2003): 73-76. | Digital Scholarship |

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                Publisher Plaintiffs Issue Statement on Order in Georgia State University E-Reserves Copyright Case

                Posted in Copyright, Digital Copyright Wars, E-Reserves, Publishing on August 15th, 2012

                The publisher plaintiffs have issued a statement on Judge Orinda Evans' order in the Georgia State University e-reserves copyright case.

                Here's an excerpt:

                The District Court's decision is marred by a number of serious legal errors. The fair use exception cannot be stretched beyond recognition simply because course materials are delivered in a digital format by an educational institution. The ruling excuses copyright violations by GSU and endorses unauthorized copying and distribution of academic works well beyond what the law allows and what universities across the country consider reasonable. The decision devalues academic scholarship by treating such work as 'factual' compilations. . . .

                As with the initial decision to bring suit, the decision regarding an appeal will be based on a considered assessment that takes into account the extent to which this ruling, which we believe to be legally vulnerable on multiple grounds, endangers the creation and dissemination of high-quality academic work

                Georgia State University has also issued a statement about the order.

                | Scholarly Electronic Publishing Weblog | Digital Scholarship |

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                  Judge Issues Order in Georgia State University E-Reserves Copyright Case: GSU’s Defense Costs to Be Paid by Plaintiffs

                  Posted in Copyright, Digital Copyright Wars, E-Reserves, Libraries on August 12th, 2012

                  Judge Orinda Evans has issued an order in the Georgia State University e-reserves copyright case that says, in part, that the defendants's attorney's fees and other defense costs will be paid by plaintiffs.

                  Here's an excerpt from the order:

                  In this litigation, the Court limited Plaintiffs to claims arising in three semesters in 2009 but did not require Plaintiffs to pursue all claims. When the trial began, Plaintiffs chose to pursue 99 claims out of 126. They then dropped 25 claims (and added one) during the trial. As to the remaining 75 claims, no prima facie case was proven in 26 instances. Digital permissions were unavailable in 33 instances. Neither digital nor hard copy permissions were available in 18 cases. Although the Court does not doubt Plaintiffs' good faith in bringing this suit, and there was no controlling authority governing fair use in a nonprofit educational setting, Plaintiffs' failure to narrow their individual infringement claims significantly increased the cost of defending the suit.

                  For these reasons, the Court exercises its discretion to award to Defendants their reasonable attorneys' fees. Other costs will also be taxed in favor of Defendants and against Plaintiffs to the extent permitted by statute.

                  Read more about it at "Judge Denies Publishers' Request for Relief in Georgia State U. E-Reserves Case" and "The Prevailing Party."

                  | Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |

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                    Association of American Publishers Issues Statement on Georgia State University E-Reserves Copyright Case Ruling

                    Posted in Copyright, Digital Copyright Wars, E-Reserves, Publishing on May 15th, 2012

                    The Association of American Publishers has issued a statement on the Georgia State University e-reserves copyright case ruling.

                    Here's an excerpt from the press release:

                    At the same time, we are disappointed with aspects of the Court's decision. Most importantly, the Court failed to examine the copying activities at GSU in their full context. Many faculty members have provided students with electronic anthologies of copyrighted course materials which are not different in kind from copyrighted print materials. In addition, the Court's analysis of fair use principles was legally incorrect in some places and its application of those principles mistaken. As a result, instances of infringing activity were incorrectly held to constitute fair use. . . .

                    The Court's ruling has important implications for the ongoing vitality of academic publishing as well as the educational mission of colleges and universities. Contrary to the findings of the Court, if institutions such as GSU are allowed to offer substantial amounts of copyrighted content for free, publishers cannot sustain the creation of works of scholarship. The resources available to educators will be fundamentally impaired.

                    | E-science and Academic Libraries Bibliography | Digital Scholarship |

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                      "Issue Brief: GSU Fair Use Decision Recap and Implications"

                      Posted in Copyright, Digital Copyright Wars, E-Reserves, Publishing on May 15th, 2012

                      ARL has released "Issue Brief: GSU Fair Use Decision Recap and Implications."

                      Here's an excerpt:

                      Although the decision is certainly not perfect (the use of bright line rules for appropriate amount under factor 3 is particularly troubling), Judge Evans has written a thorough and thoughtful analysis of the issues, and her opinion represents an overwhelming victory for Georgia State individually, a major defeat for the plaintiff publishers and for the AAP and CCC, and overall a positive development for libraries generally. The substance of the opinion is not ideal, but it is far more generous than the publishers have sought, it establishes a very comfortable safe harbor for fair use of books on e-reserve, and libraries remain free to take more progressive steps.

                      | Scholarly Electronic Publishing Weblog | Digital Scholarship |

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                        Georgia State University E-Reserves Copyright Case Ruling (Cambridge University Press et al. v. Patton et al.)

                        Posted in Copyright, Digital Copyright Wars, E-Reserves, Publishing on May 13th, 2012

                        The ruling is in for the Cambridge University Press et al. v. Patton et al. case.

                        Here's an excerpt from the ruling:

                        Of the 99 alleged infringements that Plaintiffs maintained at the start of trial, only 75 were submitted for post-trial findings of fact and conclusions of law. This Order concludes that the unlicensed use of five excerpts (of four different books) infringed Plaintiffs' copyrights. The question now is whether Georgia State's 2009 Copyright Policy caused those infringements. The Court finds that it did, in that the policy did not limit copying in those instances to decidedly small excerpts as required by this Order. Nor did it proscribe the use of multiple chapters from the same book. Also, the fair use policy did not provide sufficient guidance in determining the "actual or potential effect on the market or the value of the copyrighted work," a task which would likely be futile for prospective determinations (in advance of litigation). The only practical way to deal with factor four in advance likely is to assume that it strongly favors the plaintiff-publisher (if licensed digital excerpts are available).

                        Read more about it at "The GSU Decision—Not an Easy Road for Anyone" and “Inside the Georgia State Opinion.”

                        | Scholarly Electronic Publishing Bibliography 2010: "SEP [Scholarly Electronic Publishing Bibliography] is compiled with utter professionalism. It reminds me of the work of the best artisans who know not only every item that leaves their workshops, but each component used to create them—providing the ideal quality control." — Péter Jacsó ONLINE 27, no. 3 (2003): 73-76. | Digital Scholarship |

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