RAQs: Recently Asked Questions

Topic: Comments on Fair Use During COVID-19. - 4/2/2020
See below for Cole's statement on the Public Statement of Library Copyright Specialists. ...
Posted: Thursday, April 2, 2020 Permalink

MEMBER QUESTION

See below for Cole's statement on the Public Statement of Library Copyright Specialists.

WNYLRC ATTORNEY'S RESPONSE

Friends, lawyers, librarians: as my former law school faculty will tell you, my fair use cup is always half full.  I err on the side of information wanting “to be free.”  And if I wrote copyright law, it would be a very different-looking regime.[1]

That said, for those of you reviewing the Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Research, and considering its application to your institution, I want to urge a very precise caution—a precise caution I do not see in the Statement, and an absence I believe could cause undue risk to many[2].

Before I get into the caution, I want to say:

  • I appreciate that “fair use” is in a constant state of warfare akin to a WWI fight for no-man’s land.[3]
  • I appreciate that now may be the time to strike a blow against exploitive publishers, whose actions exploit academic professionals providing content, while driving up costs for students.  
  • I appreciate that game-changing cases like Hathi Trust don’t happen unless someone decides to be bold.

But I am an in-the-trenches attorney.  I am not (and do not have the qualifications nor patience to be) an academic attorney nor a legislator.  In terms of this battle, I am a mere street-fighter.[4]  So here are my thoughts from the streets:

Fair use is a large concept, but its cases are fought on a case-by-case, content-specific basis.

So, if your institution chooses to accept the gambles posed by the Statement—that sometime in 2023, a court will find that a public health emergency impacts a fair use analysis, OR that in the coming recovery, academic publishers will be too wary of negative pushback[5] to sue a targeted few institutions to teach them a “lesson” about copyright[6]use your institution’s “fair use checklist”[7] to document that you have made the determination to use a particular work, at a particular time, in that particular amount, in good faith.

Why?  If you are an educational institution, under Section 504 of the Copyright Act, even if the Statement’s arguments for fair use are found not to hold water, your good-faith determination could limit your damages.[8] [9]  That, in turn, will position your lawyers to ensure the case never sees the inside of the courtroom.  This is especially true since for those 504 (c)(2) covers, the burden of proof is on the plaintiff (the publisher) to prove the bad faith of the defendant (who will hopefully not be you).  But again, this happens on a use-by-use, work-by-work basis.

I want to emphasize this step because in my experience, many smaller educational institutions and libraries do not have in-house copyright specialists, or lawyers, urging them to use a fair use checklist or similar documentation.  While for some institutions, a fair use checklist might be as assured a factor as, say, the fact that graduation happens in Spring,[10] at other places, the idea of documenting a fair use determination might not even be on the radar.

Of course, reading the signs in the wind,[11] my sense is that some people want this case to see the inside of a courtroom (and they are probably hoping for a 2nd, 7th, or 9th circuit judge). Further, based on past fair use battles, my guess is some institutions have decided they will be the frontline warriors in the fight.  For those warriors, I wish you god speed, a keen eye, and a sharp (legal) spear.

For the rest of you, if you decide to follow the guidance in the Statement,[12] I urge you to go into it with your eyes wide open, to use extreme caution, to show you are fully considering the four fair use factors--and if you decide, on a case-by-case basis, that you have a fair use, save the documentation.

 



[1] For instance, the exclusive rights held by non-original authors would diminish much, much sooner.  Fair use factors would also be much different.  Oh, and the whole area of law would consider modern technology. 

You know, some simple changes!

[2] Or rather, the select, targeted few the academic publishing companies will choose to teach a lesson.

[3] I am listening to the soundtrack for “Wonder Woman” right now, so trench warfare is on my brain.

[4] Many of the Endorsers and Signatories are Generals, or at least Captains, in this fight.

[5] A consideration for public regard I have not seen them overly cautious about, to date.  But who knows?  Maybe this will be their Ebenezer Scrooge moment.

[6] AKA in the publishing biz as “protecting our rights.”

[7] I have always loved this one: https://copyright.cornell.edu/sites/default/files/Fair_Use_Checklist.pdf. Cornell, my friends (maybe it’s because I am from Central New York).

[8] Section 504(c)(2) provides that where an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, infringed copyrighted material in the honest belief that what they were doing constituted fair use, the court is precluded from awarding any statutory damages. It is intended that, in cases involving this provision, the burden of proof with respect to the defendant’s good faith should rest on the plaintiff.

[9]Yes, I am linking to Cornell’s site for the citation to 504, and the Statement has both a Cornell Endorser and a Signatory.  Cornell is a mighty copyright fortress and their participation is one of many signs that this document says “bring it.”

[10] Well, it used to.  We are dealing with uncertain times.

[11] A dramatic-sounding way to say “reading comments online.”

[12] Which many lawyers, including myself, will struggle with.  Lawyers can be creative and bold, but unless our clients tell us they are willing to take a risk, we are creatures of precedent.

Tags: COVID-19, Fair Use

Year

0

2016 4

2017 24

2018 29

2019 42

2020 76

Topics

501c3 2

Academic Libraries 2

Accessibility 5

ADA 9

Archives 1

Assignments 1

Association Libraries 2

Behavioral misconduct 1

Board of Trustees 5

Branding and Trademarks 1

Broadcasting 1

Budget 1

Cease and desist 1

Children in the Library 1

Circular 21 1

Contact tracing 1

CONTU 2

copyleft 1

Copyright 74

COVID-19 55

CPLR 4509 4

Crafting 1

Criminal Activity 1

Data 2

Defamation 1

Derivative Works 3

Digital Access 10

Digital Exhibits 1

Digitization and Copyright 12

Disclaimers 3

Discrimination 1

Dissertations and Theses 1

DMCA 2

Donations 3

DVDs 1

E-Books and Audiobooks 2

Ed Law 2-d 1

Education Law Section 225 1

Elections 2

Emergency Response 43

Employee Rights 9

Ethics 4

Executive Order 4

Fair Use 29

Fan Fiction 1

Fees and Fines 3

FERPA 6

First Amendment 1

First Sale Doctrine 3

FOIA/FOIL 1

Forgery and Fraud 1

Friends of the Library 2

Fundraising 1

Health Management 1

Hiring Practices 1

Historic Markers 1

HRL 1

Identity Theft 1

IRS 1

Labor 3

Laws 21

Liability 1

LibGuides 1

Library Buildings 1

Library Card Policy 2

Library Cards 2

Library Programming and Events 9

Library Purchases 1

Licensing 3

LLCs 1

Loaning programs 1

Local Organizations 1

Management 16

Meeting Room Policy 6

Memorandum of Understanding 1

Microfilm 1

Movies 6

Municipal Libraries 5

Music 12

Newspapers 3

Omeka 1

Online Programming 11

Open Meetings Law 2

Oral Histories 1

Overdrive 1

Ownership 1

Parodies 1

Personnel Records 2

Photocopies 15

Photographs 1

Policy 37

Preservation 2

Privacy 12

Property 3

PTO, Vacation, and Leave 1

Public Access 1

Public Domain 7

Public Health 2

Public Libraries 14

Public Officers Law 1

Public Records 2

Quarantine Leave 2

Records Management 1

Remote Learning 1

Reopening policies 8

Retention 5

Retirement 1

Ripping/burning 1

Safety 4

Salary 2

School Ballots 1

School Libraries 6

Section 108 2

Section 110 2

Section 1201 1

Security Breach 2

Sexual Harassment 2

SHIELD Act 2

Sick Leave 1

Smoking or Vaping 2

Social Media 4

SORA 1

Story time 3

Streaming 14

SUNY 1

Swank Movie Licensing 3

Taxes 4

Teachers Pay Teachers 1

Telehealth 1

Template 3

Textbooks 3

Umbrella Licensing 2

Universal design 1

VHS 4

Voting 1

W3W 1

WAI 1

Work From Home 1

Yearbooks 3

Zoom 2

The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.