Category Archives: Copyright

Nothing Right about This Copyright Ruling

The world of copyright litigation is getting downright surreal. Recently a court struck down an appeal of a NY case involving reselling books from overseas in the U.S. Essentially, the court ruled that the first sale doctrine applies only to works manufactured in the United States. As reported in Library Journal:

The 2nd U.S. Circuit Court of Appeals ruled 2-1 in John Wiley & Sons Inc v. Supap Kirtsaeng that Kirtsaeng, a Thai man studying in the United States, infringed upon John Wiley & Sons’ copyrights when he had his family send him cheaper foreign editions of Wiley textbooks, printed by Wiley Asia, that he then resold on eBay for a profit.

Kevin Smith on the Scholarly Communications @ Duke blog has a great, clearheaded explanation of the implications of this decision for libraries:

One of the problems that the Wiley decision creates is uncertainty about library lending. Libraries do not even know, I am afraid, how much of their collections are manufactured abroad. In the Second Circuit, however, lending anything that was manufactured outside the U.S. is now in question, regardless of where it was purchased (even directly from the publisher).

Even more disturbing are the potential effects this ruling could have on students:

If libraries are in a difficult position, students may be even worse off under the Second Circuit’s ruling. Again, publishers now have an incentive to manufacture their textbooks abroad and sell them to U.S. students. Such students would no longer have the right to re-sell their textbooks or to purchase used texts.

The takeaway is that libraries may not be able to loan out books that were manufactured outside the United States, and students may not be able to buy or sell used textbooks. As Smith and others point out, there are dissenting opinions in the case, and perhaps the ruling will be challenged again in the future. But nonetheless this court ruling creates a potentially awful situation for higher education.

I’ll be interested to see whether there is any outcry over this decision from parts of the commercial sector. At my college (like many others) our bookstore buys back used textbooks to resell to students, and there are lots of thriving online book resellers like, Amazon, and AbeBooks. Perhaps these businesses will challenge the court ruling, which seems to have the potential to ruin many of them.

Every time I hear news like this I wonder how much closer it brings us to the tipping point, whether these increasingly restrictive applications of copyright law will push libraries and higher education into action against scholarly publishers who seem to be making it more and more challenging to read and use the work they publish. But it can be difficult to determine what action to take. Smith suggests a couple of possibilities, including libraries’ asking where books were manufactured before purchasing them, which I have to admit seems onerous to me. Faculty could stop assigning textbooks manufactured overseas to their students, but given the advantages to publishers of offshore manufacturing there will likely always be the need to assign at least some books that were not made in the U.S.

It’s also interesting to note that there was no coverage of this story in two of the bigger higher ed news sources, The Chron and Perhaps this, like so many other scholarly publishing issues, is thought to be more of a problem for libraries than for faculty and administrators? Though I’d hate to see libraries restricting their lending practices and students balking at buying textbooks they can’t resell, perhaps these effects would raise awareness of these issues more broadly throughout academia?

Widespread Ignorance About Google B.S.

According to a story in this morning’s Chronicle, many scholars remain “wary” of the Google Book Search project. This is perhaps to be expected (many librarians are wary of it, too, although I prefer to think of our work more as “due diligence”), but more distressing is the conclusion drawn by Pamela Samuelson (UC Berkeley School of Information and Co-Director of the Berkeley Center for Law and Technology) that there is “widespread ignorance [among our colleagues] about the agreement and its implications for the future of scholarship and research.”

Samuelson and her co-authors note that several provisions of the proposed Google B.S. settlement “seem to run contrary to scholarly norms and open-access policies that we think are widely shared in scholarly communities.” In the Chronicle’s report of their concerns, one can see the potential benefit on campus of a robust scholarly communications education program, i.e., one that engages librarians, faculty members, graduate students, and others (e.g., University Press, Graduate College, Office of Research) in a discussion of issues such as author rights, copyright management, open access policies and publishing, and the library and the press and the leaders of scholarly societies and professional associations (who are also often on our campuses) as the pillars supporting a new vision of the university’s role in the dissemination of research and scholarship.

Is Samuelson right? Is there “widespread ignorance” on your campus regarding the implications of the Google Book Search settlement? Is this part of a broader “teachable moment” on your campus on scholarly communication issues and the resources that your library is ready to put in play to help faculty to better understand these issues and to understand both the potential of large-scale digitization programs for enhancing discovery of scholarly materials, and the implications that taking one or another direction on those programs may have for the process of scholarly communication? Will you be taking advantage of that teachable moment?

Quick quiz: when Google Scholar went live, many information literacy instruction programs began to offer workshops on how to use Google Scholar as part of the research process; how many of you with scholarly communication education programs are planning (or have already conducted) workshops on the broader implications of Google Book Search for local understanding of author rights, open access alternatives, use of Creative Commons, etc.? Have you shared resources such as ARL’s Guide for the Perplexed? Who have been your campus partners in developing such programs?

We’re academic librarians. “Widespread ignorance” is something we should be able to help to address!

Non-rival is non-relevant

I’m glad that Elisabeth Jones wrote to our tip page about her post–Fighting for non-rival pudding–because I’ve been wanting to spout off about non-rivalness for a while now.

Anytime you hear someone talk about intellectual property you are going to wind up hearing the phrase “non-rival.” The idea is that information or knowledge is a non-rival good. What this means is that when one person consumes information, it does not prevent another person from consuming it. So information or knowledge is not like land or pudding, which are “used up” when other people consume them. Ok, fine.

But from this idea many people quickly get to conclusions like: information just wants to be free; intellectual property is evil; DRM is the devil; and the Kindle is a giant threat to intellectual freedom. Maybe all those things are true, but I don’t think you can get there from the claim that information is non-rival.

First, I’m not even sure that information is non-rival. What about a juicy piece of gossip? The more people hear about it, the less juicy it becomes, the more it is “used up.” Or what about the secret to a magic trick? Or an insider stock tip? Or a trade secret? Or any information that gives someone a competitive advantage?

But even assuming that information is non-rival, nothing follows from this about intellectual property rights. Information and knowledge should be widely distributed because everyone in society will be better off (not because they are non-rival). But that doesn’t mean information has no value, or that the creators of information can’t charge for it, or put restrictions on who uses it and what they can do with it (within reason).

And even assuming that information is non-rival, that does not mean that books as containers of information are non-rival. In fact books are not non-rival in all respects, as anyone who goes to a library and finds the book they want “checked out” knows. If someone is using a book, someone else cannot simultaneously use it, hence it is not non-rival. Oh unless it’s an electronic book, with the right kind of DRM set up.

In her post, Jones jumps from the idea that information is non-rival to the idea that the Amazon Kindle will do “monumental and egregious harm…to intellectual freedom and the maintenance of an informed populace” because a person cannot take their Kindle book content to a used bookstore or donate it to a library like one could with a physical book. Jones claims that books are like bottomless cups of pudding because others can consume their contents hundreds or thousands more times.

This is going too far. It’s an open question whether Kindle will lead to a more or less informed populace. Kindle books are less expensive (after you shell out for the device) than physical books. Kindle makes it easier to carry more books at one time on a train or a plane. Perhaps for these reasons, Kindle will lead to a more informed populace, not less. As for not being able to sell or give away Kindle books, that is a disadvantage, but if people could give away digital books there’s a good argument that that activity would undermine the whole market because sharing networks would be set up. We may like that, but I don’t think there’s an inherent right to it simply because information is non-rival or because information is a public good. Physical books are not, as Jones claims, bottomless cups of pudding. Eventually they wear out, especially if the first owner treats them roughly or writes in them. The more they are used, the more they are used up. As far as I know there is nothing stopping someone from loading up a Kindle and selling it or giving it away, or even lending it out, as some libraries have done.

The debate of ownership vs. access for libraries is not a simple one, and it’s quite a stretch to blame the current economic meltdown on access over ownership. Intellectual goods may be non-rival, but physical books are not. Something follows from the fact that information is non-rival, but I’m not sure what and I’m not sure it’s interesting. Whatever it is I don’t think it has anything to do with intellectual property rights, the debate between ownership versus access in libraries, or if the Kindle is a boon or threat to intellectual culture.

Empowering Our Users With Fair Use

Editor’s Note: Working at an academic institution in Philadelphia had its advantages recently for providing proximity to a significant event – the formal release of the Code of Best Practices in Fair Use for Media Literacy Education. My colleague Kristina De Voe, Reference Librarian for English & Communications at Temple University, attended the event. Here she shares some observations and thoughts from the event, along with some useful links. Many thanks to Kristina for contributing this guest post.

On November 11, 2008 I attended the release event for the much anticipated Code of Best Practices in Fair Use for Media Literacy Education, a succinct, easy-to-understand document outlining the concepts and techniques for interpreting the copyright doctrine of fair use. Fittingly taking place at Philadelphia’s National Constitution Center and coordinated by The Center for Social Media, The Program on Information Justice and Intellectual Property, and Temple University’s Media Education Lab, the event was attended by fair use stakeholders: educators, students, copyright lawyers, and librarians.

An archived stream of the event is available, but as media literacy maven Renee Hobbs and other panelists spoke on the significance of the Code in terms of both teaching and student learning, I was struck by their sheer call to action. Here is a document that we as librarians can use as a teaching and learning tool with our faculty, our students, and one another.

Whether helping faculty design amazing curricula or helping students with research projects, promoting a stronger culture of fair use within our institutions allows us to help empower our users in accessing and utilizing media rich resources – available from our libraries or elsewhere. It is no surprise to me that comments about the Code from librarians were celebratory (there were cries of “Hallelujah” and even “This rocked my word!”) because too often, I think, we become bogged down by the image of librarians as gatekeepers of information.

This code offers librarians a new role as well as a fresh way for integrating information literacy concepts into practice. For example, the organizers of the event created a corresponding wiki, “Unlocking Copyright Confusion,” filling it with curriculum materials for teaching about fair use, in addition to a space for continued dialogue. Joining in or simply starting a conversation about fair use with educators and fellow librarians just may lead to unexpected discoveries.

Georgia State Strikes Back

If the university presses that sued Georgia State over the use of electronic readings offered their students through the campus CMS, department pages, and library e-reserves were looking for a “whoops” and the kind of statement that Cornell (and other schools) have adopted – they guessed wrong.

At issue: well, it depends on how you frame it. University presses think Georgia State violated their rights by not “seeking permission” (copyright lingo for “paying”) to use digital copies of their publications. They want the university to adopt practices that are at least closer to their more limited definition of fair use. Georgia State believes they were furthering students’ education in a way that is fair use. And in papers filed on Tuesday they’ve just explained their side of it to the court.

Andrea Foster’s article in the Chron (the only coverage of this development that I’ve seen so far) points out that Georgia State is making another argument – as a state institution they’re immune from prosecution.

Without having a copy of the filing, it’s hard to read the tea leaves – but this could be precedent-setting in ways the previous settlements were not. How interesting that this document was filed just before ALA is having its annual meeting in Annaheim and at the very same time the American Association of University Presses is meeting in Toronto. I’d love to have two flies on those conference center walls with Twitter accounts.

(The AAUP has a statement of support for the press’s suit posted on their website, but it’s from last April. I tried to see if they have updates on their blog, but guess what – it’s closed to non-members. I also couldn’t find a statement from Georgia State’s press office at their Website.)

Do you know more about this court filing? Do tell.