Notes on Spring 2009 VLACRL Program “Copyright Today: Perspectives in the Wake of the Georgia State University E-Reserves Case”

May 28, 2009 at 11:10 am Leave a comment

Spring 2009 VLACRL Program

“Copyright Today: Perspectives in the Wake of the Georgia State University E-Reserves Case”

May 27, 2009 at Sweet Briar College

(link to program flyer)

10-11:30am James Gibson, Associate Professor of Law and Director of the Intellectual Property Institute at the University of Richmond School of Law

  • What is the best way to engage college students in non-academic discussion of copyright?
    • So far, this has constituted students and copyright holders exchanging gunfire with the college in the middle, keeping its head down
      • What does the college have to offer to this battle/debate?
      • Informed by university’s unique role in society: educational
      • Our values: the mission of the modern campus is to produce informed citizens
    • Encouragement of critical thinking, open-mindedness, uncensored sharing of ideas, the intellect and respecting of others’ opinions
      • We need to protect the ability to accept the possibility that the other person is right, the way tenure protects unpopular views
    • The first question should not be a lawyer asking, “What does the law require?”
      • Should be “What would I do if the law exerted no pressure?”
  • What’s the right thing to do to support the mission of the school?
    • THEN see if there are any external regulations and make adjustments as necessary
      • Universities have more discretion to act as they see fit than they think they do
  • File-sharing
    • Educating students about file-sharing is never done beyond “this is illegal and these are the consequences”
      • Punishment is most often the method of dealing with infringement (lawsuits, blocking, etc.)
    • Why should universities follow the law the same way as other stakeholders, considering our unique mission?
      • We just lay down the law, which is not what we do elsewhere
      • In literature, we don’t say “Faulkner—idiot man-child” and move on
      • Why approach this differently? Use it as a teachable moment
      • Engage actors in rules that apply to them
    • If the only reason students refrain is because they’re afraid of expulsion, they won’t really “get it” and will go home and do it
      • Will treat file-sharing the same way as speeding: technically illegal, but only important to people who get caught
      • Whereas plagiarism, which is NOT illegal, is shared as a moral sense: taking other people’s words is wrong both in school and outside
      • Internalize rationale: speeding paradigm –> plagiarism paradigm
        • Think twice even outside school
  • When is the right time to teach this? It takes time
    • After problem emerges? That is closing the barn door after the cows have escaped
    • “Law is for the bad man.” – Oliver Wendell Holmes
      • Good people will always do the right thing
      • Are students bad men? If so, education won’t help them
    • “Character is what you are in the dark.” – Dwight Moody
      • Hopefully, we can assume most of our students are like this
    • The mission of the university can inform our relationship with copyright owners
  • DMCA
    • Napster didn’t exist when DMCA was passed by Congress
      • Many DMCA notices are deficient in some way
    • tell students when DMCA notice is received for liability purposes and in the interest of openness, but educate them on their rights: counter-notices are rare
    • distinguish the type of DMCA notice
      • universities are immune unless:
        • student is storing material owned by college and it isn’t taken down
          • this is the exception rather than the rule
          • college has no obligation to do anything if material is stored on a student computer
        • the student is a repeat offender and nothing is done
          • might have to discipline student by taking away his/her Internet access after 4th offence, for example
  • E-reserves
    • Publishing industry is picking off individual universities and forcing very restrictive use policies over their course packets
    • Longstanding and ongoing conflict
    • If no laws, a universal supply policy would likely not be effected because other educators are copyright owners and they must be respected
    • What the law dictates is actually determined by how materials are to be used
    • Restrictive fair use policies exist on campus because:
      • Law doesn’t exist until there’s a ruling (case law)
      • There’s a small chance of being wrong, but the consequences of being wrong are dire
        • Huge penalties that outweigh harm to copyright owner and benefit to user
      • People are risk-averse
  • Fair-use factors
    • Licenses affect not just the parties involved but everyone in the industry
    • What is the effect of use on the copyright owner?
    • People buy licenses not because it’s fair use but because they’re risk-averse
      • This is now being used as evidence that the licenses provide revenue and should be protected by copyright law
    • Ambiguity shifts:
      • Is it okay to put a chapter on reserve?
        • If you get a license, the ambiguity disappears
      • Now is 5 pages okay?
        • Fair use shrinks, copyright grows
    • People buying licenses are screwing themselves
      • Copyright industry is picking off universities one by one and using those as a hammer to drive the rest down
      • “If you don’t hang together, you hang separately.” – Ben Franklin
    • May be too late for e-reserves
      • There may already be a critical mass of conservative policies, but there is always another issue on the horizon that libraries/universities will be at the front of
      • We should talk amongst ourselves (NO copyright holders involved) first
    • Don’t just set safe harbors and minimum standards
      • In practice, course will look for clear standards
      • The safe harbor will be the only harbor
      • The floor becomes the ceiling
  • The Center for Social Media at American University has put together copyright videos on best practices
    • Inspiration, collaboration?
  • Don’t form a policy just to get university off the hook with copyright holders, but to show that university has examined it in light of its mission

1-2:45pm Dwayne Buttler, Professor and Endowed Chair for Scholarly Communication at the University of Louisville, University Libraries

  • The threshold for protection is so low that Creative Commons was created to get around the protection!
  • At the height of the Napster hysteria, a lawyer said, “How can something that 50 million Americans use be illegal? That’s more people than vote in the general election.”
  • In the Constitution, works are protected “for limited times”
    • In the government’s point of view, a limited time is anything less than forever?
  • Cartographers and OED editors put in fake names/words to catch copyright infringes
    • Factual facts are not protectable
    • Fictional or incorrect factual facts ARE
  • Things in the public domain stay in the public domain, despite efforts to invigorate them
  • Person receiving information is generally not liable; it is the disseminator who is
  • Limitations on exclusive rights
    • Section 107 fair use doctrine
    • Section 108 libraries and archives
    • Section 109 transfer of copies – first sale doctrine
      • Refers to physical objects, so owning physical items does not help e-reserves
    • Section 110 performances and displays
  • Sony vs. Universal (Betamax) was a time-shifting (rather than space-shifting) precedent
  • Liability?
    • Section 504(c)(2)
      • Who: employees, nonprofit educational institutions, libraries, archives
      • What: requires court to remit statutory damages if you use good faith and reasonably believe use is fair use
      • Why: understanding 4 factors and fair use evidence
        • “good faith”
        • “reasonable”
    • CAUTION: court may still award actual damages and attorney fees
    • Policy danger: limit use and can get in trouble for not following it, so maybe we shouldn’t make policies
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Entry filed under: Uncategorized.

bibliographic instruction observation, fall 2008 notes on VLA 2009 Annual Conference

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