A colleague sent me a link to an article posted on the website of "The Chronicle of Higher Education." The post, titled "Colleges Shouldn't Have to Deal With Copyright Monitoring" was written by Pamela Samuelson, a law professor at the Berkeley School of Law.[ref]Colleges Shouldn't Have to Deal With Copyright Monitoring[/ref]
The article bemoans the injunction being requested by the publisher Plaintiffs in the long running lawsuit against Georgia State, which I have written about before on this blog.[ref]Georgia State and the Boundaries of Academic Fair Use: From Bright Line Test to...Maybe[/ref] The case, now in its eighth year, pitted three textbook publishers against the Georgia State University. At issue was the practice of scanning portions of textbooks and placing them on an "e-reserve" system so they could be accessed by students.
The copying by Georgia State was rather small, on average around 9.6% of the total book pages, and the majority were a single chapter from a book that averaged 18 chapters. Yet, the publishers sued for 126 counts of copyright infringement.
A first trial was resolved largely in favor of Georgia State. Out of the 126 counts initially brought, only 74 went to trial. Of those 74, the Court ruled that 26 counts failed to prove a prima facie case of infringement, 43 were fair use and the remaining 5 were infringing.[ref]Cambridge University Press v. Becker 863 F.Supp 2d 1190 District Court for the Northern District of Georgia 2012[/ref] The Judge declared Georgia State the prevailing party and assessed $2.5 million in attorneys' fees and costs against the publishers.
The publishers appealed and the Eleventh Circuit Court of Appeals reversed.[ref]CAMBRIDGE UNIVERSITY PRESS, v.PATTON 769 F.3d 1232 United States Court of Appeals, Eleventh Circuit. 2014[/ref] In a split decision, the Court largely approved the finding of the Court as to fair use, but disagreed with the methodology. It is worth noting that the dissenting opinion took the position that what Georgia State was doing was not fair use.
So, back the case went to the District Court in Georgia. The result was largely the same. In a March 31, 2016 opinion, the Court found that out of 48 cases of claimed infringement, only 7 cases were found to be infringing and the remaining were found to be fair use. Georgia State was again found to be the prevailing party for the purposes of awarding attorney's fees.
The article jumps all over the requests of the publisher Plaintiffs for injunctive relief.
"The requirements would be too onerous and costly for colleges, given that such a small percentage of uses were found to infringe on copyright."[ref]Colleges Shouldn't Have to Deal With Copyright Monitoring[/ref]
Except that these requested requirements do not apply to "colleges." It applies to exactly one. Georgia State University. Even if the Court were to grant the injunctive relief, and even if it were to be affirmed on appeal, it would still apply to only one "college." Even if armed with that affirmance, the publishers were to go after other universities using the decision as a precedent, it would not be binding on the Courts in the 9th Circuit, which is where Berkeley Law is located.
So, the post spills a lot of digital ink fussing over an injunction that has not even been issued, and that likely won't have any effect on Berkeley Law.
What is there to complain about? Well:
"[Faculty members] would have to decide whether to license that material or determine that uploading parts of in-copyright books would be fair use. Faculty members would have to assess whether their uses of the relevant materials were narrowly tailored to serve their pedagogical purposes, were not excessive in quantity, and were not the "heart" of the book. And faculty members would have to consider how much harm their use would cause to the publisher if other faculty members teaching similar courses made the same uses of the book chapter."[ref]Id.[/ref]
Funny. This is exactly what we do at Nova Southeastern University. This is part of our policy already, and we didn't have to get slapped with a Court order to do it.
The post goes on:
"The proposed injunction would also require university personnel to confirm that every excerpt uploaded to course websites met the fair-use criteria and to keep track of information about the book, which parts were used, the number of total pages…and the name of the professor."
Again, this is what we do already at NSU. This is part of our copyright policy. Our fair use checklist is available on our website so the professors can find it easily.[ref]Appendix C: Fair Use Analysis Checklist[/ref] The faculty member fills out the form and sends it to me. I review it as to whether I think this falls within fair use, and if I agree that it does, I give the OK to the faculty member and scan the form into my computer.
Onerous? Costly? Hard to see how.
Especially when you consider that the tuition to attend Berkeley Law is around $50,000 a year.[ref]Berkeley Law Fees & Cost of Attendance[/ref] At that level of tuition there's no room in the budget to require faculty do a simple fair use analysis?
To be certain, part of what we do at NSU is being pro-active as a hedge against possible liability. As a private not-for-profit, NSU does not enjoy the same sovereign immunity that Georgia State (or Berkeley) does. But an ounce of prevention is worth a pound of cure, especially when the cure comes in the form of a Federal copyright infringement lawsuit. The first go-round alone cost Georgia State $2.5 million in attorneys fees.[ref]CAMBRIDGE UNIVERSITY PRESS, v.PATTON 769 F.3d 1232[/ref]
Most of this is solved through education. Faculty and relevant staff members are required to take copyright training. I created a 30 minute video which is followed by an assessment test that must be passed. Any further questions about copyright or fair use, from anyone: faculty, staff, students or the NSU Museum of Art, land on my desk. And the buck stops here.
Sometimes it's easy. One professor wanted to post the full text of a book that was commercially available. That's a clear no. But a lot of times it's not so easy. But being located in the Eleventh Circuit, I have to be guided by what they have said in the Georgia State case, and not where I think the line should be. And remember, one judge was firm in his opinion that what Georgia State was doing was not fair use.
The other thing the post fails to mention is that I don't have to be right in my fair use analysis, and neither do the majority of colleges and universities. Under section 504 (c) (2,) as a not-for-profit educational institution, all I have to do is have a good faith belief that what I am doing is fair use in order to avoid the assessment of statutory damages. The fair use forms are a record of that process, should anyone question it later.
But there's something more at stake here. As "institutions of higher learning," shouldn't we be mindful of being good citizens as well?
At the recent copyright roundtables in New York,[ref]A View to a Shill? On the Frontlines of the Copyright Office Roundtables[/ref] one panelist went off on a rant against the requirements of the Higher Education Opportunity Act (HEOA). This makes as a requirement for an institution to receive federal aid for its students, it must
"publish an annual disclosure that "explicitly informs" students that unlawful distribution of copyrighted material, including peer-to-peer file sharing may subject them to civil or criminal penalties. Further, institutions must provide students a summary of the penalties for violating federal copyright laws and a description of the institution's policies related to unauthorized peer-to-peer file sharing, including a description of the disciplinary actions taken against students who engage in unauthorized distribution of copyrighted material using the institution's computer system and network."[ref]NACUA Notes - The Higher Education Opportunity Act I: New Reporting and Disclosure Requirements for Colleges and Universities[/ref]
As I sat in the audience, I thought "Why not?" What's wrong with this? We're supposed to be educators. Why shouldn't we be informing our students about copyright infringement? Isn't part of our job to send good citizens into the world?"
Especially when I get anecdotal reports back from faculty members who overhear students in the back of the class with their laptop saying "No! Don't buy the book. Just go to the Pirate Bay and get it for free."
I get that textbooks are expensive. I taught classes at both the undergraduate and graduate levels, and I was always receptive to complaints from students when they felt that they did not get good value from a textbook that I required. In fact, in one graduate level course, I wound up eliminating the textbook entirely.
I can also agree that some of what the publishers want in the Georgia State case is over the top, such as compelling Georgia State to provide back-door access to the University's online database so the publishers can snoop on them. I can also reasonably predict that having lost twice before the same judge, they are not going to be awarded this kind of relief.
Yet, it's also clear that the publishers have watched the internet decimate the music industry, and are scared to death that they're next. I can't tell them that they are wrong. In testifying before Congress in 2014, Paul F. Doda, as counsel for textbook publisher Reed Elsevier, noted that the publisher issued over 20,000 takedown notices per month in 2013. In one case, the same textbook was uploaded to the same website 571 times.[ref]Highlights of Digital Millennium Copyright Act Congressional Hearings[/ref]
So, in advising our faculty members, I tell them: "We don't want to replace the need to buy a book. Would you, in the absence of the ability to scan, be requiring the students to purchase the book?" If the answer to this question is "no," then we look at whether the use is small and not substantive enough to qualify as fair use, of which as I have indicated several times, there is room for disagreement even at the rarified levels of the Eleventh Circuit Court of Appeals. This process requires a review by both the faculty member and ultimately me and, in the end, is really is not all that burdensome.
As a university dedicated to increasing the knowledge of our students and sending good citizens into the world, we should be doing the right thing and respecting the rights of others.
And doing the right thing means exactly that. And this does not include complaining about how "onerous" it is.
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On May 12, 2016, a Federal Court in Florida refused to dismiss a lawsuit alleging that Google's various statements about its search results, including that "[i]t is Google's policy not to censor search results," are false, deceptive and misleading.[ref]E-VENTURES WORLDWIDE, LLC, v. GOOGLE, INC. Case No. 2:14-cv-646-FtM-29CM, 2016 WL 2758889[/ref]
The case pits Florida company E-Ventures Worldwide, LLC against the search giant. The chief complaint is that Google, contrary to its public pronouncements, made all of the company's websites disappear from all possible Google search results.[ref]Id. at 3 (all citations are to the original pagination)[/ref] Since Google controls 70% of the U.S. search market and 90% of the European search market,[ref]Id. at 2[/ref] this is equivalent to making the websites virtually disappear from the internet.
In September of 2014, Google manually removed 231 of Plaintiff's websites from its search results.
"As a result of Google's removal of E-ventures websites, [its] websites could not be located on Google.com the world's most widely used search engines."[ref]Id. at 5[/ref]
"E-ventures websites were not only removed from Google.com's search results, but were also removed from all [G]oogle affiliated websites and from third party websites participating in Google's advertising program."[ref]Id. at 5[/ref]
In that event, the only way you could find them, was to know the exact URL of the website.
Because if Google says you don't exist, you don't exist, do you?
This continued even with new websites produced by E-ventures after the initial takedown, ultimately totaling 365 discrete websites.[ref]Id. at 4[/ref]
Why would Google do such a thing?
Google says it was because the websites were "pure spam."[ref]Id. at 3-4[/ref]
E-ventures says it was to eliminate a competitor.[ref]Id. at 3[/ref]
E-ventures provides SEO, or search engine optimization. This is where the data and meta-data on your website is manipulated to place you at the top of Google's search results. Google will also place you at the top of search results, for a fee paid to Google. If E-ventures gets you the top spot, Google gets nothing. So, by eliminating E-ventures as a competitor, Google hopes it would get more people to pay Google for the top spot.[ref]Id. at 2-3[/ref]
Google's response is that their search results are "opinions"[ref]Id. at 14[/ref] and "editorial judgements"[ref]Id. at 16[/ref] which are "incapable of being proven true or false"[ref]Id. at 15[/ref] and therefore protected by the principles regarding free speech as guaranteed by the First Amendment. It is hard to dispute this point, and the Court in its opinion agrees with this principle.[ref]Id.[/ref]
The problem is that E-ventures is not suing based upon the search results, it is suing over what Google says about its search results. It is those public pronouncements that E-ventures claims are "false, deceptive and misleading."[ref]Id. at 7[/ref]
There are two statutes at play here. The first is the section of the Trademark Act, a/k/a the Lanham Act, dealing with false statements made in the furtherance of commerce.[ref]§ 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).[/ref] That section provides in part that:
"Any person who, on or in connection with any goods or services...uses in commerce any...false or misleading description of fact, or false or misleading representation of fact which...is likely to deceive as to...commercial activities by another person...shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act."
E-ventures also alleges violations of Florida Deceptive and Unfair Trade Practices Act ("FDUPTA").[ref]§ 501.201-.213, Fla. Stat. (2002)[/ref] Under the FDUPTA:
"A deceptive act may be found when there is a "representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer's detriment."[ref]PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003)[/ref] (citation omitted). Further, an "unfair practice is one that offends established public policy and one that is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers."[ref]Id.[/ref] (citations omitted).
E-ventures lists eight problem statements in the complaint. I have honed in on three that jumped out at me.
- "Google's index merely reflects that the page exists on the wider web."
- "Google search results are a reflection of the content publicly available on the web."
- "It is Google's policy not to censor search results. However, in response to local laws, regulations, or policies, we may do so."[ref]E-VENTURES WORLDWIDE, LLC, v. GOOGLE, INC. at 7[/ref]
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May 2nd and 3rd of 2016 found me in an unfamiliar position: directly addressing representatives of the Copyright Office on the continued viability of the "takedown" provisions of the Copyright Act.
Faithful readers of this blog will undoubtedly be aware of my position on this matter, and I did take the time to file written comments with the Copyright Office. Yet, it was one of my faithful readers who suggested that I take this one step further and sign up to be part of the live "copyright roundtables" to be held in New York City. "Nothing ventured, nothing gained," I thought, so I tossed my digital hat into the ring to be part of the discussion. Much to my surprise, I was selected to appear on the first and last panels, and the administration of Nova Southeastern University deemed it important enough for me to attend, who I humbly thank for their support.
The heavy hitters were certainly out in force. On the "copyright" side of things were representatives from Disney, Viacom, McGraw-Hill, Warner Bros., BMG, BMI, Sony, NMPA, Getty Images, RIAA, MPAA, Directors' Guild and so on. On the "tech" side of things were representatives from Verizon, US Telecom, Software and Information Industry Association, Consumer Technology Association, Internet Association, Computer and & Communications Industry Association. There were university-based organizations that were without a direct financial interest in the proceedings but on a definite "side" such as the Center for the Protection of Intellectual Property (copyright) and the UC Berkeley School of Law (tech). Rounding out the panels were a handful of actual working artists, such as authors, musicians and film directors, and a phalanx of attorneys pushing their client's positions.
And, of course, a few shills, claiming to operate in the "public interest" but taking money from interested parties, like Google.
In fact, conspicuously absent from the panels was anyone from Google or YouTube. Needless to say, both of them were the recipient of numerous daggers and darts from the creative community over the course of two days, though I did spot Google staff attorneys in the audience.
Placed on the very first panel, and totally by chance, I was placed at the very first seat. Copyright Office general counsel Jacqueline Charlesworth, kicked off the session by assuring us that they had read our comments, and wanted answers to specific questions, the first of which was to describe our experiences sending and receiving takedown notices. Since this is not part of my assigned duties at NSU, I did not signal that I was going to offer a response.
Silly me.
This was apparently the opportunity to run out and plant my position flag, which the big players did with gusto, often not answering the question posed in the process. Due to the large number of people on the panel (22), almost all of the allotted time had expired before the conversation wound back to my position. This lead to the Copyright Office greatly restricting the length of future live comments, which certainly allowed us to cover more ground, but meant you really had to focus on a single point in your response, even though you wished to cover several.
Naturally, the elephant in the room was the entire "whack-a-mole" problem: the deliberate and constant posting and re-posting of infringement materials. The copyright side complained loudly and expansively about the waste of time and resources inherent in the process, and how reforms were needed.
To which the tech side responded: "Elephant? I don't see any elephant around here. I looked for quite a while and failed to find any traces of an elephant in this room."
Tough to find any solution to a problem when one side fails to admit that any sort of problem exists. And this was a recurring theme throughout the two days. The copyright side complained about the waste of time and resources (the billion notices Google is set to receive this year was mentioned frequently) as well as the enormous amount of money being lost. The tech side assured the Copyright Office that the DMCA was working exactly as Congress intended, carefully "balancing the interests" of internet tech interests and the copyright holders.
In fact, you could have made a drinking game out of how many times the phrase "balance of interests" was uttered, but I'm afraid you'd be on the floor after two panels.
So, I'd have to say that any progress or meeting of the minds with regard to the takedown process was close to nil. Each side has dug its feet in, and I can predict a rather bruising battle in Congress next year, especially if any form of "take down and stay down" is proposed. This pre-supposes, of course, that the new Congress can get its act together on any level at all.
On other fronts (and not surprisingly), the recent Berkeley study[ref]Google Funded Study Concludes Google Needs More Legal Protection From Small Copyright Owners![/ref] was continuously and repeatedly misrepresented, particularly with regards to it reflecting an analysis of "all takedown notices sent all over the internet" when in fact it is overwhelmingly dominated by the notices sent to Google, particularly Google search.[ref]Id.[/ref]
The Copyright Office did seem concerned about artificial barriers being required by web sites and online service providers in order to accept takedown notices. I spoke about my experience with Google's takedown policy (recounted here[ref]How to Send a Takedown Notice to Google in 46 (or more) Easy Steps![/ref]) while others reported demands for copies of the registration certificate (not required by 512), refusal to accept registrations of compilations (ditto), and requiring that the filer be the copyright owner, when 512 explicitly states that the notice can be filed by the authorized agent of the owner. There seemed to be some consideration by the Copyright Office that the issuance of a standardized form for takedown requests might reduce this problem, which would be welcome.
Regrettably, there were also statements recounting persons filing takedown notices receiving personal threats from the targets of the takedown notices, due to the fact that their personal information must be disclosed in the takedown notice. So much for the high moral ground of these "freedom fighters" so often defended by the Electronic Frontier Foundation.
Truly, the most surreal moment and a perfect example of the stone deaf "nothing's wrong here" stance of the tech industries was holding up the example of the shutting down of Grooveshark as a "victory" for the DMCA, and showing that it is working. As recounted by this blog post, Grooveshark hid behind the DMCA for ten years.[ref]Grooveshark Is Now Deadshark: How an Illegal Streaming Service Hid Behind the DMCA for Nearly 10 Years[/ref] It was only after years of expensive litigation that Grooveshark's illegal activity was exposed.[ref]Id.[/ref] This was a site that had at its peak 35 million users sharing 15 million files, illegally streaming material more than 36 million times without proper licensing or royalties.[ref]Id.[/ref] None of this was discovered as a result of the DMCA. All of it was discovered during expensive (and extensive) litigation.
The same could be said for the recent judgement against Cox Communications.[ref]14 Strikes and You're Out! (Maybe): How Cox Communications Lost its DMCA Safe Harbor[/ref] The fact that Cox was intentionally ignoring its own policies was not uncovered by anything in the DMCA, it was only uncovered by (here we go again) years of expensive litigation.
This repeated invocation of the success attributed to Grooveshark's "death" led to Chair Jacqueline Charlesworth musing rather glumly that Grooveshark's ultimate death was "a slow and tortured death." Nice to know she gets the point.
There was an effort to push the idea that internet access is "a basic human right," akin to food and shelter, and that any removal of internet access was equivalent to solitary confinement. Gosh, I thought, does this mean the U.S. Government should issue "internet stamps" to those who cannot afford internet access? Again, Ms. Charlesworth cut to the chase, asking an ISP, "would you cut off someone's internet access if they didn't pay their bill?" To this there was much hemming and hawing, and ultimately a dodge of the question saying that they would have to ask that question of the sales department. In other words, certainly they would terminate a subscriber for non-payment, but not for copyright infringement. Just like Cox Communications,[ref]Id.[/ref] who for some reason failed to have a speaker on any panel.
There were more than a few assertions of "users are creators too," without any explanation of how their rights somehow trump the rights of the original authors that they are copying from. On the final panel, I made the point that unless one were to read section 115 out of the Copyright Act, a cover version is not "fair use" and unless one were to read section 114 out of the Act, a remix was not a "fair use." To this I added that I had done a Westlaw search both for the word "remix" and the word "mashup," and I failed to find one case in which a court ruled that either a remix or mashup was in fact "fair use." Yet, the Berkeley study contends just that when it includes takedowns of remixes, mashups, and cover versions as examples of "problem notices." There is simply no case law supporting this position that I have been able to find.
Some panelists criticized the DMCA takedown process based upon what YouTube does when it receives a takedown notice, including placing "strikes" against a YouTube account. To me, this is a problem with YouTube, not the DMCA. You agree to YouTube's arbitrary policy when you sign up and agree to the Terms of Service, as I have written about previously.[ref]Google Is As Google Does: How Google Cheats Both Sides of the DMCA Takedown Process[/ref] Complain to YouTube. Not that it will get you anywhere, but you could complain.
I did stick my neck out with the statement that "we are killing off an entire generation of artists" and asking the assembled panelist to show us where the next Prince was coming from. This yielded some follow-up questions from the Copyright Office, but interestingly enough, no one came up with the name of the game changing artist of the current generation.
And then, there's this point I made in my final comments. If the DMCA is really working as Congress intended, then Google wouldn't be using it as a bargaining chip in negotiations. This point was recounted several times in others panelists' remarks (and as I did in a previous blog post[ref]Copyright Blog Update: Google's Latest DMCA Abuse, Here Come the Bogus Bonds and Judge Says 1 + 1 = 1[/ref]), how not doing what Google wants will get you threatened with being thrown into DMCA whack-a-mole hell. As others have remarked, it's like an old fashioned mob "protection" racket: "nice song you've got there, it would be a shame if anything bad happened to it."
I did get dinged once, for asserting that under the Constitution, copyright is supposed to promote the progress of "the useful arts."[ref]U. S. Constitution, Article 1 Section 8.[/ref] In response, it was archly pointed out that in fact, it is the term "science" of that clause that refers to copyrights and the "useful arts" refers to patentable material. This is indeed correct, though bizarre enough to our ears that the Supreme Court readily admits that this point is "counterintuitive…for the contemporary reader…"[ref]Golan v. Holder, 132 S. Ct. 873, 888 Supreme Court of the United States (2012)[/ref] But when I'm wrong, I'm wrong, and on that point, I stand corrected.
But what remains unchanged by that panelists' rather pedantic counter-point is my ultimate assertion that we measure the success of the Copyright Act by how many artists can earn a sustainable living, a living that for many small independent authors, musicians and film-makers is rapidly becoming out of reach.
Otherwise what does the word "progress" of that very same clause mean?
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