Fair Use Case Study #445

In response to a faculty request that 6 chapters of a cooking DVDs:

Instructor
If we streamed all of the videos you've requested, it would be a goodly portion of the DVD that in my opinion, weighing other factors, would be more than a fair use. I'm open to discussion on this, especially if you are asking students to make these recipes as part of your curriculum.
I would like to stream the falafel, fries, and one of the burger segments. It is a special case that the basic recipes segment falls into, because that seems to be the 'heart of the matter' in the entire DVD. It's like giving away the punchline, or showing the ending of a movie or the last chapter of a book, and that is a big factor in fair use evaluation.

If you have another viewpoint I'm neglecting please let me know. I appreciate your working with me on this.

Burning questions

I have some burning questions for Mr. Butler next week when the fair use course starts:

• What about music as an (always) dramatic/creative work?
• How does one interpret the TEACH Act, as a whole or parsed out?
• What are the impacts of current bills like CISPA, ACTA, and how does legislation jibe with adhoc agreements like the 'thing' with 3 strikes.
• What is going on with the O'Dwyer case and what is the current thinking on linking?
• To what extent can fair use analysis be mechanized?

GSU Webinar Notes

Unpublished works affecting fair use shifted in the 90's - Bbutler (?)
Acuff-Rose Case was hugE

Michael Madison describes Best Practice rationale

First 70 pages of GSU ruling are setting the FU analysis

factor 3 and 4 are the impact points in GSU: win one and edu wins all when 1 & 2 are satisfied.

GSU Not a precident in a strict legal sense. 10% rule applies best for strictly academic texts.

Jonathan Band streaming argument READ fsrn
 _____

 JB: "The four factors are not an exhaustive list, there are others that can be considered"

uses were NOT transformative; transformation is not a big factor because it is simply edu use

De minimus non curat lex = the little things don't matter

3 of 4 factors are almost always a win

Hope of plaintiffs was to add more burden to inst's making FU determinations


Questions:
GSU will have to use the 10% rule in their policy?

GSU Ruling Notes

"My initial reaction is, honestly, what a crushing defeat for the publishers," said Brandon C. Butler, the director of public-policy initiatives for the Association of Research Libraries. Given how few claims the publishers won, "there's a 95 percent success rate for the GSU fair-use policy." The ruling suggests that Georgia State is "getting it almost entirely right" with its current copyright policy, he said. (Cron Article)
So should we look at the the GSU policy and take the good parts?

Factor 4:
Ms. Sims said that the judge took the educational purpose of each use seriously and did not focus just on market considerations. "That was one of the contentions here—that if you can pay for it, you should be," she said. "And that's clearly not what the court is saying." (Cron Article)
This is good, because firms can just create a market for everything and loop around fair use altogether if this were the main factor being considered.

On Sunday, James Grimmelmann, a professor of law at New York Law School, posted a detailed analysis on his blog, The Laboratorium. "The operational bottom line for universities is that it's likely to be fair use to assign less than 10 percent of a book, to assign larger portions of a book that is not available for digital licensing, or to assign larger portions of a book that is available for digital licensing but doesn't make significant revenues through licensing," Mr. Grimmelmann wrote.

On the third factor, the amount copied, the court repudiated the Classroom Guidelines, calling them “not compatible with the language and intent of § 107.” It noted that the numerical limits in the Guidelines are so stringent that not one of the excerpts at issue in the case would fit within them. It was particularly uninterested in the Guidelines’ position that copying not “be repeated with respect to the same item by the same teacher from term to term,” which the court described as “an impractical, unnecessary limitation.”  (Laboritorium post)
This is such encouraging news. The no-repeat concept is poor in spirit and bone, and seems to have as it's intent to make coming up with a new replacement for lessons and material so problematic for teachers as to wear them down from trying.

Guiding Without Lines

©jaych1974

The prevailing wind of copyright judgements are eroding the old guidelines, exposing the open territory of fair use, upon which we must stand. The 10% rules, flow charts and true/false yes/no maps provided by the well-intentioned voices of copyright knowledge are less useful as we navigate toward a the honest assessment of the law itself, because these lines are drawn in sand, not rock.

     Nonetheless, I believe educators can usefully employ guides, lists of considerations and examples of practice - just not ones that provide yes or no answers. My apologies, but there are few if any absolutes when it comes to fair use, and anyone short of a judge who says so will have an equal amount of worthy detractors ready to offer another opinion. It is entirely reasonable to use a checklist to assist in making a fair use analysis, though it is not reasonable for guidelines to lead me to a dead end.

    This is not to say that institutions cannot have rules that forbid certain practices that would expose them to unnecessary risk, mainly in the area of excessive amounts of copying. Common sense clearly seems to bar the way for copying entire works or anywhere close to it. We cannot make a systematic, institutional practice of anything like this, and we can still consider such uses on a case to case basis, and an individual can still decide that their transformative use is so necessary to the educational outcome that the entire work is appropriate. At the same time, the institution, and really the employees who may be called upon to assist such a use, have a right to refuse to assist in those uses which they feel may put themselves at undue risk. This should be their right, since those individuals may be found to have a contributory or vicarious liability through their actions. This could put people in a difficult spot, but if institutions make solid policy, have and a clear intent to follow copyright law and place responsibility in the hands of faculty - documented and supported by copyright education - all staff should be able to cooperate within a space that allows for innovation and mitigated risk.
     It isn't easy to draw lines, and in this area of the law it's practically impossible. This allowable degree of uncertainty, however, should not lead institutions to shut doors and place roadblocks. There is every reason to foster study and expertise in this area, and create the best guideposts we can to help educators make their best judgement. It is within our capability as stewards of fair use to carve out the territory within which we can all support making excellent learning experiences for students.

Core questions for schools

What level of copyright knowledge is reasonable for faculty to be responsible for?
=Demonstrate basic knowledge of Copyright and fair use through analysis of basic examples.

What is the college's goal in making copyright education a priority?
=To empower our teachers and students to create educational experiences having full confidence about their rights and responsibilities within US Copyright law benefits every faculty member and student, and reduces the risk of infringement liability."

Does public education have a responsibility to advance educational opportunities for society?
=I say yes

What's the risk?
If acts are proven to be in good faith, then sec504 remits damages to $0.

Definitions of License Types

A license is either the transfer of a property right,  in the case of an exclusive license, or the grant of some form of permission to do something that would otherwise violate the property right. 

An assignment or exclusive license is the transfer of all or some of the property rights granted by copyright, and certain technicalities apply.  First, to be legally effective, the transfer must be expressed in writing and be signed by the copyright owner. 

A non-exclusive license is also familiarly known as a permission.  Non-exclusive licenses can be granted far more casually than exclusive licenses because they do not involve the transfer of rights.  Non-exclusive licenses do not have to be in writing, and indeed, the license can be implied by conduct. 

A contract does not rely on an underlying property right but does require an agreement between two or more parties.  They must agree to exchange something of value - even if that something is a promise to refrain from doing something.

Many copyright licenses are also contracts. 

Open Licenses have two common features:

(1) they are granted to the public at large rather than to an identified person or group, and

(2) they are non-exclusive. 

Creative Commons

these licenses are from the copyright owner to all members of the general public and the license is non-exclusive.

This info was paraphrased from Michael Carroll from content in the UMUC COPY601 course.

contract remuneration

I want to note that
Rulings in favor of Copyright violation includes remuneration for plaintiffs attorneys' fees, but a finding of breach of contract does not.

Linking Issues

Whether or not linking to any public webpage is legal is a burning issue in my mind, mainly because it seems such an easy safe harbor. Alas, it may not be.

Brad Templeton's thoughts on Linking Rights
- I agree with his contention that linking to legal material is always legal except when the site expressly forbids it, in which case it would still be legal to publish the web address without a link.

-linking to material you know or have reason to believe is illegal is not legal

Canadian supreme court ruling on linking story