New amicus briefs on old copyright cases

The American Library Association (ALA), as a member of the Library Copyright Alliance (LCA), joined amicus briefs on Monday in support of two landmark copyright cases on appeal.

iPad e-book demo on computer desk

Photo credit: Anita Hart, flickr

The first (pdf) is the Georgia State University (GSU) case—yes, that one— arguing that GSU’s e-reserves service is a fair use. The initial complaint was brought back in 2008 by three academic publishers and has been bankrolled by the Copyright Clearance Center and the American Association of Publishers ever since.
Appeals and multiple requests for injunction from the publishers have kept this case alive for eight years. (The long history of the ins and outs of these proceedings can be found here, and the briefs filed by the Library Copyright Alliance (LCA) can be found here.) Most recently, in March 2016, a federal appeals court ruled in GSU’s favor and many thought that would be the end of the story. The publishers appealed again, however, demanding in part that the court conduct a complicated market effect analysis and reverse its earlier ruling.

While not parties to the case, LCA and co-author the Electronic Frontier Foundation (EFF) make three principal points in their “friend of the court” (or “amicus”) brief:

  • First, they note that that GSU’s e-reserve service is a fair use of copyrighted material purchased by its library, underscoring that the service was modeled on a broad consensus of best practices among academic libraries.
  • Second, and more technically, the brief explains why the district court should have considered the goals of faculty and researchers who wrote most the works involved to disseminate works broadly as a characteristic of the “nature of the use” factor of fair use.
  • Third, and finally, the brief addresses the fourth factor of the statutory fair use test: the effect of the material’s use on the market for the copyrighted work.

Libraries and EFF note that the content loaned by GSU through its e-reserve service is produced by faculty compensated with state funds. Accordingly, they contend, “A ruling against fair use in this case will create a net loss to the public by suppressing educational uses, diverting scarce resources away from valuable educational investments, or both. This loss will not be balanced by any new incentive for creative activity.”

digital audio icon

Photo credit: Pixabay

The second amicus brief just filed by ALA and its LCA allies, another defense of fair use, was prepared and filed in conjunction with the Internet Archive on behalf of ReDigi in its ongoing litigation with Capitol Records. ReDigi is an online business that provides a cloud storage service capable of identifying lawfully acquired music files. Through ReDigi, the owner of the music file can electronically distribute it to another person. When they do, however, the ReDigi service is built to automatically and reliably delete the sender’s original copy. ReDigi originally maintained that this “one copy, one user” model and its service should have been considered legal under the “first sale doctrine” in U.S. copyright law. That’s the statutory provision which allows libraries to lend copies that they’ve lawfully acquired or any individual to, for example, buy a book or DVD and then resell or give it away. Written long before materials became digital, however, that part of the Copyright Act refers only to tangible (rather than electronic) materials. The Court thus originally rejected ReDigi’s first sale doctrine defense.

In their new amicus brief on ReDigi’s appeal, LCA revives and refines an argument that it first made way back in 2000 when ReDigi’s automatic delete-on-transfer technology did not exist. Namely, that digital first sale would foster more innovative library services and, for that and other reasons, should be viewed as a fair use that is appropriate in some circumstances.

With the boundaries of fair use or first sale unlikely to be productively changed in Congress, ALA and its library and other partners will continue to participate in potentially watershed judicial proceedings like these.

About Carrie Russell

Carrie Russell is the Director of the Program on Public Access to Information in the Office for Information Technology Policy. Her portfolio includes copyright, international copyright, accessibility, e-books and other public policy issues. She has a MLIS from the University of Wisconsin-Milwaukee and a MA in media arts from the University of Arizona. She can be reached via e-mail at crussell@alawash.org.

2 comments

  1. And still ALA refuses to put its “Read” poster in support of literacy in the public domain. If you don’t pay nearly $200 for some typestyles and a handful of backgrounds–you have to supply your own software like Photoshop or Gimp–and then you have permission to make Read posters. This, according to ALA, to protect the integrity of the brand. Not my idea of my library organization supporting literacy. And an abuse of copyright.
    Bob Williford

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