P.IT.APRIL.
2010 3/18/10 4:37 PM Page 18
18 InformationToday
April 2010 www.infotoday.com
Intellectual Property
Educational Use in the Digital Age
by K. MATTHEW DAMES | are a number of sim-
I
n January, the Association for In-
formation and Media Equipment
(AIME) introduced itself to the staff
at the University of California–Los An-
geles (UCLA).
From press coverage of the encounter,
it appears the meeting did not bear any
good news for UCLA. AIME, which was
founded in 1986 as a lobby group for ed-
ucational film and video producers and
counts PBS among its members, chal-
lenged the legality of UCLA’s use of video
from its members in online courseware
systems. The discussion resulted in
UCLA discontinuing the practice of post-
ing video in the courseware system, de-
spite a university spokesperson insisting
the university did nothing wrong.
Less than a week later, a representative
from Cornell University announced that
AIME had contacted the university, alleg-
ing copyright violations stemming from
similar activities. At the risk of dating my-
self, I can’t help but think of The Rolling
Stones’ classic “Sympathy for the Devil,”
in which Mick Jagger hisses, “Pleased to
meet you; hope you guessed my name.”
Yet at the same
time, too few
institutions
vigilantly conduct
their own
enforcement of
copyright violations.
This situation highlights a
yawning gap in our contemporary copy-
right law. There are statutory limitations
that allow certain types of educational
uses that excuse having to ask a copy-
right owner for permission to use por-
tions of a protected work and eliminate
having to pay for such use. Unfortunately,
those limitations do not clearly allow a
university staffer or faculty member to
rip content from a video source and place
it online for later streaming or for down-
loading it for educational uses, even where
the courseware system is protected by
passwords and available only to regis-
tered members of a specific class.
The controversy over educational use
of video content in digital course systems
is the latest contretemps in an ongoing
struggle between copyright owners and
educational institutions about the proper
use of protected works in a digital age.
The roots in this battle stretch back over
decades, but its contemporary manifes-
tation became evident about 6 years ago,
with the controversies over electronic re-
serves, or e-reserves.
E-Reserves Controversies
The controversy over video usage on-
line echoes the conflict of e-reserves that
have traditionally pitted the Association
of American Publishers (AAP) against
several colleges and universities. The is-
sues have been similar: A trade group for
a collection of corporate copyright own-
ers occasionally (then, frequently) al-
leged that select institutions routinely
were placing copyright-protected content
within some virtual holding space (in
that case, digital course reserves sys-
tems) beyond an amount the organiza-
tion thought was acceptable. From the
outset, implicit in this challenge has been
the theory that e-reserves use of any kind
was illegal. It is a cost-per-click theory of
contemporary copyright: No pay equals
no click.
AAP’s modus operandi has been to
present its allegations written in a cover
letter that was sent from the organiza-
tion’s outside counsel and to accompany
the letter with the draft of a federal court
legal complaint that alleges copyright in-
fringement. The suggestion is that if the
recipient did not comply with the organi-
zation’s demands (and by extension, its
cost-per-click theory of copyright law), the
trade group’s attorneys would start an in-
fringement lawsuit.
Over the past 4 years, AAP has ap-
proached at least four universities in this
Corleonic manner: Cornell, Hofstra,
Syracuse, and Marquette. The threats
have resulted in agreements in which
each of the schools affirmed that educa-
tional content in digital formats should
be treated under the same copyright
principles that apply to printed materi-
als. AAP announced its agreements with
Hofstra, Syracuse, and Marquette in
January 2008; its agreement with Cor-
nell had been announced in September
2006. AAP has been floating trial bal-
loons about alleged e-reserves infringe-
ments since 2004, when it approached
the University of California–San Diego.
(In full disclosure, I work for Syracuse
University Library as its copyright and
information policy advisor, but I was not
involved in negotiating the agreement
between Syracuse University and AAP.)
Of course, AAP has played a role in
Cambridge University Press, et al. v. Pat-
ton, better known as the Georgia State e-
reserves lawsuit. In April 2008, not long
after AAP made its agreements with Hof-
stra, Syracuse, and Marquette, a trio of
academic publishers sued Georgia State
University, accusing the school of im-
properly using its library’s e-reserve sys-
tem to “facilitate[], enable[], encourage[],
and induce[] Georgia State professors to
upload and post … many, if not all, of the
assigned readings for a particular course
without limitation, without oversight,
and without the requisite authorization
and appropriate compensation to the
copyright owners. …” That case cur-
rently is mired in pretrial activities. The
most recent development as of this writ-
ing is that the judge had ordered the par-
ties to submit pretrial dismissal motions
by late February.
Issues and
Questions
There are some
differences between
the AIME and AAP
scenarios, but there
ilar issues in these
disputes. K. Matthew Dames
The first issue I
always wonder about is how the copyright
owners, or their trade groups, get the
initial pieces of information to begin in-
fringement investigations. “We have leads
in terms of other universities, and we do
plan to investigate further,” Allen Dohra,
AIME’s president, said to Inside Higher
Ed about his organization’s investigation
into UCLA. Dohra added that AIME is
prepared to take on other colleges if it
becomes clear that similar practices are
taking place elsewhere.
In terms of source information, it’s
important not to overlook the disgrun-
tled employee. But another possibility is
the Copyright Clearance Center (CCC).
In an interview I had with CCC’s
Tracey Armstrong a few years ago, the
CEO conceded her organization has oc-
casionally helped coordinate or provide
research for what it calls “enforcement
actions” against a variety of parties, in-
cluding copy shops and bookstores. Arm-
strong said these actions are done at a
publisher’s behest; CCC does not initiate
them. (This interview, titled “Miles to Go:
A Conversation With Copyright Clear-
ance Center’s Tracey L. Armstrong,” was
published in the January/February 2008
edition of ONLINE magazine.)
In the interview, Armstrong did not
indicate that CCC had ever specifically
targeted universities for an investigation
or enforcement action. However, in retro-
spect, I never asked that specific question,
and I should have.
CCC is a unique organization in a
unique position. It is a not-for-profit,
royalty collection agent for copyright
owners (traditionally print publishers).
Since its revenue comes from the roy-
alties it collects for publishers, it is not
unreasonable to suggest it may have a
vested interest in maximizing publishers’
royalty collections.
CCC positions itself as having federal
legitimacy (its representatives consis-
tently introduce the company as having
been “created in 1978 at the suggestion
of Congress”). But the organization’s
representatives almost never reveal that
scientific and technical journal publi-
shers created CCC as the official pay-
ment center for collecting reproduction
fees on behalf of AAP member publish-
ers in 1978, when the current Copyright
Act became effective. (This is the same
AAP that has been clanging swords over
e-reserves.) Yet at the same time, CCC
has positioned itself as a partner to col-
leges, universities, and libraries, help-
ing some of them educate university
personnel about copyright issues, in-
cluding fair use issues.
P.IT.APRIL.2010 3/18/10 4:38 PM Page 19
Given CCC’s business purpose, his-
tory, and its current push of its annual
copyright license to colleges and univer-
sities as a payment facilitation and copy-
right compliance tool, it is worth raising
questions about the extent to which the
organization does or does not engage in
so-called enforcement actions or investi-
gations that lead to so-called enforce-
ment actions. Further, it also may be
worth asking whether there is any cor-
relation between the amount of annual
fees a school pays to CCC and the likeli-
hood that the school will be investigated
for copyright infringement, either by CCC
or by a publisher for whom CCC acts as
royalty collection agent.
In publishers’
minds, any use
of protected
works without
compensation and
permission is an
infringement.
The second issue worth in-
vestigating is a publisher’s normative view
of copyright law. As William Patry and
Jessica Litman have chronicled in law
review articles, large, industrial and in-
creasingly multinational copyright own-
ers historically have been Congress’ sole
stakeholders when copyright law and
policy have been discussed and promul-
gated. These copyright owners posit all
sorts of theories to justify their positions
on copyright.
But to understand recent threats
against colleges for what may be edu-
cational uses, let’s take a look at the
history of the publishing industry and
its never-ending fight to preserve the
economic integrity of making one sale for
each intellectual work that is manufac-
tured. This principle, which I have dubbed
the cost-per-click theory of copyright, is
the economic basis upon which entire
media industries have been built.
Of course, a key component of that
principle is having a physical item to man-
ufacture, count, and sell, which is typically
a book. This principle does not withstand
the societal and technological disruption
of moving from entire books to chapters,
or from chapters to sections, or from paper
to digital. Yet in the publishers’ minds,
many of them continue to expect to be paid
for each item that is produced or made
available. Their business models depend
on the cost-per-click theory. But adopting
this attitude means that copyright has no
limitations and that protection is the de-
fault and lasting state of original works
fixed in a tangible medium of expression.
It also means that policy or statutory coun-
terbalances to copyright monopoly, such as
fair use, simply do not exist or exist only
when it would be embarrassing for a right-
sholder to decline use or access.
I am not claiming the colleges and
universities are without fault or liability.
But I do maintain that the rightsholders’
normative view of copyright tends to be
so narrow in the 21st century that user
fault is virtually irrelevant. In publish-
ers’ minds, any use of protected works
without compensation and permission is
an infringement.
The final issue that comes to mind
when I read about issues such as these
is the lack of spine so many colleges and
universities seem to exhibit in the face of
any questioning about the use of copy-
righted works. Have colleges and uni-
versities become so afraid of being sued
that they will cave reflexively upon the
slightest trade group inquiry?
Litigation is time-consuming, disrup-
tive to business, and often a poor resolu-
tion to a disagreement among former busi-
ness partners. For these reasons alone,
officers at colleges and universities have
good reason to avoid litigation. But it is
surprising to see how quickly some in-
stitutions (some of them billion-dollar
organizations) cower in the face of the
slightest examination of copyright prac-
tices on campus. In my opinion, part of
the reason why the fair use doctrine is so
weak and ill-defined is because higher
education has failed to draw, maintain,
and defend reasonable parameters for
their faculty, students, and staff.
Yet at the same time, too few insti-
tutions vigilantly conduct their own en-
forcement of copyright violations. Often,
and ironically, claims of fair use are par-
roted across college campuses to excuse
the most egregious and unjustified uses
of protected works.
Both these attitudes are unacceptable
for any learning institution, particularly
since it has such a vested interest in gen-
erating scholarship and culture and mak-
ing that scholarship and culture avail-
able for the purpose of learning. In the
end, colleges and universities must do a
better job at understanding the copyright
system and rightfully defending against
commercial restrictions of information
use and access, but they must also pe-
nalize those in their own communities
who abuse the privileges of information
use and access.
K. Matthew Dames is the executive ed-
itor of Copycense (http://copycense.com)
and the new publication Core Copyright
(http://corecopyright.com), which helps
persons learn U.S. copyright law. Send
your comments about this column to itlet
ters@infotoday.com.
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InformationToday 19
www.infotoday.com April 2010
Library Stuff Revisited
A Few of My Favorite Tools
by STEVEN M. COHEN | person (always consider those
marketing angles, right?) and
F
irefox has become in- then follow them (unless they
creasingly popular with are a spam account, which hap-
the technology crowd pens often on Twitter). This is
over the past 4 years for three a must for those who maintain
main reasons. First, it is consid- their library webpages or do
ered anti-Microsoft; second, it any type of public relations.
is user-driven (folks can create Auto Reload (http://bit.ly/
add-ons and market them on Steven M. Cohen 5AKOSc)—One of my favorite
the Firefox site); and third, its add-ons in Firefox is Reload
progressiveness displays sheer brilliance. Every (URL), which will automatically
As I mention during most of my talks reload any webpage at any interval that
on the topic, it’s a good idea to take a look the user needs. I missed this immensely
at the current version of Firefox, if you when I moved over to Chrome, but I was
want to see what Microsoft is going to do thrilled when I found a similar tool. Af-
with the next iteration of Internet Ex- ter you install Auto Reload, a blue circle
plorer. While I have been a loyal Firefox will appear on the right-hand side of the
user for a while, I still tested Google address bar. To activate the auto refresh,
Chrome when it was first released, but just click that button, and the page will
the lack of third-party extensions turned refresh every 1 or 2 minutes. This is a
me away. Even though Chrome was faster useful tool when accessing a webmail
(it takes up much less memory than In- program that logs you out after a certain
ternet Explorer and Firefox), the extension period of inactivity.
addict in me still needed my add-ons. Google Reader Compact (http://bit
When Google finally announced the release .ly/6QCWTX)—If you use Google Reader
of Chrome 4.0 (www.google.com/chrome/ as much as I do, you know that there are
eula.html?extra=devchannel), along with plenty of extra parts of the tool that can
it came the ability to use extensions. I slow down the service. With Google Reader
immediately started to download them. Compact, these extra tools are taken away,
and you are left with a bare-bones RSS
reader with the extra functionality that
Some of My Favorite Things you are used to having. All of the folders
Locating the extensions is easy are still available as well as the search bar.
enough. Just go to https://chrome.google Take this add-on for a ride, and you will
.com/extensions and start searching or see the difference right away.
browsing. Google extensions are a bit dif- Better Gmail (http://bit.ly/4TJkzr)—
ferent in that most of them live on or This is an unofficial version of the Better
near the toolbar on the right-hand side Gmail add-on for Firefox, but it does many
of the browser bar. It may take some time of the same functions, such as removing
to look there, but that’s a small issue. ads, hiding the chat interface and the “in-
Here are some of my favorites that I am vite friends field” (when will Google get
sure you will find useful as well. rid of that thing?), showing attachment
URL Shortener (http://tinyurl.com/ icons (instead of paperclips), and high-
y9sq3p6)—If you send as many links as lighting the row when moused over. I have
I do to colleagues, this is the perfect ex- been a big fan of the official Firefox add-
tension. When you click the icon at any on and am glad that this was finally re-
site, it will ask you which shortener you leased on Chrome.
want to use, and it will create a smaller As I add to my collection over the next
URL with one click. This will then be few months, I will be writing about them
copied to your clipboard and sent out. in my upcoming columns. I have been
There are more than 10 available serv- running both Firefox and Chrome on my
ices, and you can also send posts directly desktop for the past few months and have
to Twitter. been debating on getting rid of one in fa-
Ping This (http://tinyurl.com/y9ym vor of the other. But I have been unable
vwz)—I use Ping.fm when I want to post to decide which one to cease using. That’s
something to all of my social networks at a good thing, I guess. That way, I get to
once. This extension will do just that try out neat tools to make my web expe-
with a click of a button. This particular rience easier for myself and then pass on
extension is similar to placing a Ping the tips to you.
This bookmarklet on your favorites bar
in your browser.
Twitter Reactions (http://bit.ly/8Yz Steven M. Cohen is senior librarian at
pdb)—This is one of those quick and easy Law Library Management, Inc., in New
extensions that allows you to see quickly York. He is the creator of Library Stuff,
who has linked to (and maybe commented a blog published by Information Today,
on) any webpage on Twitter. I use this Inc. His email is stevenmcohen@gmail
tool to see who has mentioned my blog .com. Send your comments about this col-
and usually take the time to thank the umn to itletters@infotoday.com.
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